- (1.) THE opposite party is eligible to be inducted in the Managing Committee of Asansol Chowalal Madhyamik Vidyalaya (hereafter the school) in the capacity of a life member. He instituted a suit, registered as Title Suit no.59/2010, in the 1st Court of the Civil Judge (Junior Division) at Asansol, Burdwan for declaration and injunction on the ground that election of the candidate in the category of 'person interested in education' for induction in the Managing Committee of the school is defective. THE relief claimed in the suit reads as follows : (a) for declaration that the election process conducted by the current Managing Committee of the Asansol Chowalal Madhyamic Vidyala is illegal wrongful and ulterires as the same has been conducted is gross violation of rules framed under the West Bengal Board of Secondary Education Act. b) for permanent injunction restraining the present managing committee to reconstitute the Managing Committee without the process of law. c) for all cost of the suit. d) for any other relief or reliefs as the Ld. Court may deem fit and proper to which the plaintiff may be entitled to.'
(2.) IN connection with such suit, an application under Order 39 Rules 1 and 2, Code of Civil Procedure (hereafter the Code) was filed by the opposite party. By an ex-parte order dated 1.10.2010, the Trial Court ordered as follows : 'Hence it is ordered that in instant application under Order 39 Rules 1 and 2 read with section 151 of the Civil Procedure Code, both parties to the application are directed to maintain status quo over the existing nature and character of the Managing Committee without and/or till their being heard on contest over the application for Temporary INjunction. Meanwhile plaintiff to file requisites for issuance of notice upon defendants asking them to show cause by 30-11-10 as to why the application for Temporary INjunction should not be heard against them. To date for S/R and appearance. Plaintiff directed to comply with provisions of Rules 3(a) and 3(b) of Order 39 Civil Procedure Code.' The petitioners, who are defendants 1 and 3 in the suit, carried the order dated 1.10.2010 in appeal, registered as Misc. Appeal No.51/2010, in the Court of the learned Civil Judge (Senior Division) at Asansol. In connection with such appeal, an application for stay of operation of the order dated 1.10.2010 was filed. The Appellate Court took up the stay application for consideration on 6.10.2010. Since the respondent in the appeal (opposite party herein) had filed a caveat and he had not been served, the Appellate Court was of the view that it would not be proper to hear the prayer for stay ex-parte. Accordingly, it directed issuance of notice upon the respondent in the appeal within 10 days asking him to show cause why the prayer for stay shall not be allowed and fixed 8.11.2010 for hearing of such prayer. Order dated 6.10.2010 of the Appellate Court declining stay of the order under appeal dated 1.10.2010 is the subject matter of challenge in the present application under Article 227 of the Constitution dated 26.11.2010, at the instance of the defendants 1 and 3 in the suit.
(3.) MR. Chatterjee, learned advocate representing the petitioners contended that the suit filed by the opposite party is not maintainable in law having regard to the provisions contained in the 'procedure for holding elections' framed by the West Bengal Board of Secondary Education (hereafter the Board) and, therefore, the Trial Court committed gross jurisdictional error in directing status quo which, in effect, has stalled the process of election and the Managing Committee of the school could not be reconstituted. He relied on the decision reported in 2002 (2) CHN 122 in support of his submission that if the suit itself is not maintainable, there is no question of granting any order of injunction. He, accordingly, prayed for setting aside of the order of injunction and for leave to complete the election. Mr. Chatterjee, learned senior advocate appearing for the plaintiff/opposite party no.1 contended that this Court, on facts and in the circumstances, ought not to interfere. According to him, the Appellate Court did not commit any illegality in deferring hearing of the prayer for stay on the ground that the caveator had not been served. It was his further submission that instead of approaching the higher courts, the petitioners ought to have approached the Trial Court for a decision on the application under Order 39 Rules 1 and 2 of the Code. He, accordingly, prayed for dismissal of the application.;