K.C.SHARMA,J. - (1.) Through this appeal under Order 43, Rule 1 CPC, the appellant seeks to quash the order dated 12.8.2005 passed by the learned District Judge, Jaipur City, Jaipur by which the learned Judge has dismissed the application under Order 39 Rule 1 and 2 , CPC read with Section 151, CPC filed on behalf s of the applicant.
(2.) Alongwith suit for declaration and permanent injunction, the appellant filed an application for grant of temporary injunction before the learned District Judge, inter alia, with the prayers that (i) defendant respondent, namely, Shri S.S. Jain Subodh Shiksha Samiti, Jaipur which is registered under the Societies Registration Act be restrained from raising numbers of elected representatives of the executive from 11 to 15; (ii) not to publish the list of the names in this regard on 11.8.2005 or on any other day; (iii) the election of the defendant Samiti be got conducted in terms of the constitution of the defendant Samiti existed prior to amendment; (iv) not to permit any of the members to exercise right of vote for more than one etc. The defendant Samiti filed reply to the application for temporary injunction and also raised preliminary objection to the effect that plaintiff was not legally entitled to file the suit, inasmuch as the election process had already been started and that a writ petition for similar relief was also filed before the High Court and the plaintiff had the knowledge of filing of such writ petition. The learned District Judge, on consideration of material available before it and after hearing the Counsel for the parties concluded that plaintiff has been able to make out a prima facie case but according to the learned Judge, neither the balance of convenience existed in favour of the plaintiff nor he was put to suffer irreparable loss in case temporary injunction is not granted.
(3.) The main thrust of the argument of Mr. Bhandari, appearing for the plaintiff is that the bedrock/very foundation to hold the election is missing. According to the learned Counsel for the plaintiff appellant, Clause 19(TA) of the Constitution of the defendant respondent provides that amendment in the constitution can be made in accordance with Section 12 of the Societies Registration Act, which lays down that the proposition should be delivered or sent by post to every member of the society ten days previous to the special general meeting convened by the governing body for the consideration thereof and such proposition should be agreed to by the votes of two thirds of the members delivered in person or by proxy and confirmed by the votes of two thirds of the members present at a second special meeting convened is by the governing body at an interval of one month after the former meeting. But in the case at hand, notice to hold emergency meeting on 12.6.2005 was published on 8.6.2005 and further, out of the total number of members i.e., 7485, only 394 members had voted. Another special meeting was not convened for confirmation of the decision taken in previous meeting. Therefore, the alleged amendment in the Constitution of the Samiti was per se illegal. On this strength, learned Counsel submitted that preparation and publication of electoral roll in breach of the provisions of fundamental character and conducting of election on the basis of such electoral roll would certainly entitle the plaintiff appellant to get temporary injunction, thereby 25 restraining the defendant to hold elections.;