1. Applicant in Applications Nos. 1215 to 1217 of 1967 is the plaintiff in the suit, C.S. No. 99 of 1967 Application No. 1217 of 1967 was filed for the appointment of a Commissioner for seizure of some documents and records of the 1st defendant Society and the Advocate Commissioner appointed by this Court has submitted his report after carrying out the warrant of commission There is nothing further to be done in that matter.
2. Application No. 1215 of 1967 is for an interim injunction restraining respondents 1. 4 and 5 from holding a meeting on 21-6-1967 for co-opting a President, a Vice-President and five other members of the committee pending disposal of the suit. Application No. 1216 of 1967 is for an interim injunction restraining the first defendant Society from allowing the office-bearers elected at the general body meeting on 11-6-1967 from holding their offices. In both the applications the order of interim injunction was passed by this Court on 21-6-1967 and the respondents aggrieved by the said order have applied (or vacating the Interim orders passed by this Court by means of Applications Nos. 1227 and 1228 of 1967 respectively.
3. The facts which led up to the present suit and the applications aforesaid may briefly be stated. The first defendant which is a Registered Society under the Societies Registration Act is the South Indian Film Chamber of Commerce. It was founded in 1939, its main objects being encouragement and development of the film industry and the solution of problems connected with it. The Chamber is governed by its Memorandum of Association and Rules (hereinafter referred to as the Rules) with regard to all its activities including the election or nomination of its office bearers. The principal office-bearers of Society (hereinafter referred to as the Chamber) are the President, two Vice-Presidents, two Honorary Secretaries one Treasurer and twenty-two committee members. These office-bearers are elected every year at a general body meeting convened for that purpose.
With a view to properly and adequately safeguard the interests of membershaving varied and different interests inthe film industry, the members of theChamber have been classified under thefollowing groups: Studio Owners. Producers, Distributors, Exhibitors and Associates and out of the twenty-two committee members, two members are nominated while the twenty members of theExecutive Committee are given representation as shown hereunder
Studio group 3Producers' group 7Distributors' group 3Exhibitors' group 7
There are about 1600 members on the rolls of the Chamber This year the general body meeting, after due publication and notice (as required by the rules was convened on Sunday the 11th of June, 1967, in the premises of the Chamber at 10 A.M. and 676 members attended and participated at the meeting Sri Nagi Reddy who had been the President of the Chamber for the past several years was elected as the President this year too he having secured 344 votes as against his rival candidate one Subbaraman who secured 321 votes, but Shi Nagi Reddy resigned from his office. Of the two Vice-Presidents unanimously elected Sri A.L. Srinivasan also resigned, with the result that there is at the moment only one Vice-President for the Chamber Mr Sunderlal Mehta who is the second defendant in the suit. The third defendant was unanimously elected as the Treasurer.
With regard to the office of Secretaries, there were four candidates and defendants 4 and 5 were elected as Secretaries they having secured 359 and 356 votesrespectively as against the other two contesting candidates, the plaintiff who secured 292 votes and D. Ramanujam who secured 303 votes. Defendants 6 to 12 are seven members elected from the producers' group out of the 11 members who contested in the election. Defendants 13 to 15 are the members representing the Studio group who were elected unanimously. Defendants 16 to 21 are members representing the Exhibitors' group who were elected unopposed,
4. The plaintiff claims to be the General Manager of Padmini Pictures, Film producers and is also an associate member of the first defendant Chamber. He not only participated and contested the election, but also acted as a teller. Immediately after the election of the office bearers, on the same day Mr. Nagi Reddy, the President announced the result; all the office-bearers elected were Inducted in their respective offices there being no kind of protest or objection at the time of the announcement. The newly elected office-bearers were functioning as such from the 11th of June, 1967, and the present suit was instituted by the plaintiff (who contested for the Secretary's post and lost) for a declaration that the election of defendants 4 to 12 for the year 1967-68 to the offices of Secretaries and the members of the committee was illegal and ultra vires and also for a perpetual injunction restraining all the office holders of the Chamber, defendants 2 to 21 holding any office in the first defendant Chamber pursuant to the election held on 11-6-1967.
5. In paragraph 9 of the plaint, the plaintiff has set forth his various grounds of complaint and objections with regard to the alleged irregularities and illegalities and violations of the rules of the Society vitiating the election of the officebearers aforesaid. In the Schedules A to E appended to the plaint, the plaintiff has specified the categories of instances concerning the illegality of the voting. Pending disposal of the suit, the plaintiff has asked for the Interim injunction as stated above.
6. The contesting defendants 3 and 4 have set forth their objections hi their counter-affidavit and as it was represented by learned Counsel on their behalf that they were handicapped in adequately and properly putting forth their objections by the order of seizure of the documents and records of the Chamber passed by this Court, permission was granted to defendants 3 and 4 to file a supplemental affidavit with liberty to the plaintiff to file a further reply affidavit and both sides have filed such affidavits accordingly. I gave liberty to counsel on both sides to make their submissions with respect to the averments and pleas raised in all these affidavits.
7. Rules 34 and 38 contain the provision for the office-bearers, the machinery for their elections and provision for filling up vacancies. The first complaint of the plaintiff is that the election of 7 members of the Executive Committee representing the Producers' group is invalid on the ground that the 40 members specified in Schedule A to the plaint have been wrongly enrolled and wrongly allowed to participate in the election. The objection is that these 40 members who have participated in the election and exercised their votes did not satisfy the conditions of the definition of Producer member under Rule 4 as they are not persons 'actually engaged' in producing pictures or closely connected with the industry of film.
In paragraphs 6 and 7 of the supplemental reply affidavit filed on behalf of the plaintiff, the various aspects of this complaint have been elaborated. According to the plaintiff, a person can claim to be a producer member and be enrolled as such only if there is proof at the time of his enrolment that the several vital steps preliminary to the production of a picture had been reached and accomplished and the particular member is at the point of being given a permit for raw films and that the tests for determining whether a person can be enrolled as a producer must be objective tests with reference to the tangible progress he had made in the matter of production of a picture.
8. The next complaint of the plaintiff is a violation of Rule No. 8 regarding voting by authorised representatives of members, numbering as many as 212, According to the plaintiff, if a member desires to exercise his right of voting under Rule 36(3)(b) under his authorise ed representative, the member concerned should submit the authorisation to the Chamber immediately after he becomes a member of the Chamber. According to the plaintiff, the authorisation forms signed by members were received and registered at the office of the first defendant between 6th and 9th of June, 1967, long after (in many cases years after) they had become members of the Chamber. Further, according to the plaintiff, virtually, the enrolment of a person as a member of the Chamber should form part and parcel of his authorisation to someone to represent him in terms of Rule 8.
The other complaint of the plaintiff is that changes in the authorisation should have been made 48 hours before the date of any meeting; in this case before the evening of 8th of June, and that changes in authorisation received on the 9th, though they may be only up to 9-30 A.M. on the 9th were invalid. According to the plaintiff, Rule 8 would not permitthe Chamber to receive change of authorisations after 5-30 P.M. on 8-6-1967 and that 90 such authorisations were received subsequent to such period. The third objection with regard to Rule No. 8 on which considerable stress was laid was that the authorised representative must be the principal officer employed in the film business of the authorising member and that in the instant case several third parties unconnected with the business activities of the member have been authorised in violation of Rule No. 8 and have been permitted to vote, in Schedule C appended to the plaint, the plaintiff has mentioned 41 instances in which such violation had taken place. On this aspect, the substance of the plaintiff's complaint is that it is only persons who are intimately connected with and employed in the film business of the authorising member who will have intimate knowledge of the day to day problems of the film industry in general and the particular aspect of film industry, of the authorising member the Studio, Producer, Distributor or Exhibitor as the case may be and that only such authorised persons can usefully participate in the meetings of the Chamber and persons who are mere strangers to the film industry cannot serve any purpose at such meetings.
According to learned Counsel, to permit any authorised representative even if he be, an utter stranger to the film industry, knowing nothing about it, to participate in the deliberations and the resolutions carried out by a mere brutal majority of such strangers would frustrate and defeat the object of the Chamber and the purpose for which the members were classified under several groups and the purpose for which Rule 8 provides that the authorised representative shall be the principal employee of the film business of the authorising member. Learned Counsel, Sri V.P. Raman stressed the significance of the words 'shall be the principal officer employed in the film business of the authorising member'.
9. The next complaint of the plaintiff is that persons who were in arrears for more than 3 months and were liable to be removed from the membership were allowed to vote after receipt of the arrears due from them at the last moment on the day of the election. The plaintiff also has complained that some authorisations were wrongfully rejected from seven members as set out in Schedule B to the plaint and that there was some false impersonation at the elections; two Instances were given in Schedule D appended to the plaint. The plaintiff also had raised the objection that the ballot papers containing the names of the contesting candidates were all in English and several members did not know English at all. The above are in substancethe main grounds on which the validity and legality of the elections of the officebearers are questioned by the plaintiff in the suit.
10. The main ground on which the Interim injunction is asked for, restraining these office-bearers from functioning is that the constitution of the Chamber is such that their meetings should be conducted and deliberations and decisions taken therein, should be with a view to serve, safeguard and protect the interests of all the members in general and the interests of the several categories of the members as Studios, Producers, Distributors, Exhibitors and Associates and that when election of the office-bearers concerning a particular group is under serious challenge, any decision taken by the Chamber or its executive committee would cause considerable prejudice to the members of the Chamber and in particular the members of the specific groups as Studios, Producers, Distributors, Exhibitors and Associates, if ultimately this Court were to hold that the elections complained of by the plaintiff are invalid and illegal. The lull and complete representative character of the executive committee and its members is seriously impaired when the election of the office-bearers is under challenge and questioned. According to the plaintiff, these office-bearers should not be allowed to function and at the same time, the other office-bearers also should not function as the committee without proper representation of a particular group or category of members cannot claim to be fully representative in character. In other words, learned Counsel for the plaintiff urges that the executive committee cannot and should not function either with or without the members and office-bearers, whose election is under challenge.
Sri V. P. Raman urged that the plaintiff has made out a strong prima facie case, he having raised points and objections which are of a substantial nature calling for careful scrutiny and investigation during the trial and that the injury which he complains of is of an overwhelming nature and that the status quo which according to learned Counsel in the state of affairs prior to the election of the office-bearers, should be maintained. Learned Counsel also made several suggestions for restricting the scope of the order of injunction so that the day to day routine affairs of the Chamber can be carried on, the injunction being restricted to serious and vital matters concerning disbursements of heavy amounts and policy decisions in serious matters dealing with the film industry.
11. In the counter-affidavit of defendants 4 and 5, they have set forth how the interim Injunction, would paralyseand seriously interfere with the day to day administration and functions of the Chamber and how the balance of convenience is all in favour of the defendants and against the plaintiff. In the two affidavits filed on behalf of the defendants 4 and 5 they have elaborated, no doubt, illustratively, how the interim injunction asked for would seriously hamper and practically bring about chaos and confusion and utter standstill of the working of the Chamber. In the annexure attached to the supplemental counter-affidavit of defendants 4 and 5, instances of important activities of the Chamber and the Committee which would be interfered with if there should be an interim injunction, are set out. In the supplemental reply affidavit filed on behalf of the plaintiff, the plaintiff has pointed out that the interim injunction would not cause any such prejudice as alleged by the contesting defendants and that the balance of convenience is in favour of the plaintiff.
12. Even at the threshold it is necessary to advert to one crucial aspect which was stressed in the two counter affidavits filed on behalf of the defendants 3 and 4 as well as stressed in the course of the arguments of Sri V. Thyagarajan learned Counsel for the respondents. Even assuming (without conceding so, in any manner whatsoever) that there had been any violation, infringement or non-compliance of any of the provisions of the Rules, this practice has been in vogue for several years and the office-bearers who were elected in accordance with such uniform practice, have been functioning all these years, without any challenge or question, that this practice in the course of these long years is itself an indication that the Rules which are after all framed for the internal management and for safeguarding and protecting the interests of the members have been understood in that sense, i.e. whether obligatory, mandatory or directory, that the plaintiff who has been in the executive committee on prior occasions had full knowledge and was fully alive to these alleged violations and infringements of the rules, that above all, with full knowledge of these alleged violations and infringements of the Rules he participated in the elections, contested for a seat, took a chance of his being elected on the basis of the votes of these alleged disqualified voters, that he never raised any objection at any stage with respect to any of the matters now complained by him and that under those circumstances, the plaintiff should not be entitled to ask for the discretionary relief of a declaration about the validity of the election, much less would he be entitled to the discretionary relief of an interim injunction pending disposal of the suit.
Repeated stress was laid by learned counsel Sri Thyagarajan for the defendants upon this highly objectionable conduct of the plaintiff not coming to Court with clean hands, himself having been a party to everything that took place at the meeting as sufficient by itself to disentitle the plaintiff to the indulgence of an interim injunction. He also drew my attention to the several paragraphs in the two counter affidavits filed on behalf of the defendants 3 and 4 in which the facts stated as disqualifying several voters as members of the Chamber were denied, mainly with regard to the Producer members and Authorised representatives of the members. He urged that the suit and the injunction applications are bereft of any substance or bona fides and are filed by the plaintiff in a vindictive spirit and in a sense of frustration arising out of his defeat in the very election and that the plaintiff's complaint of the threatened injury or mischief which he desires to avert during the pendency of the suit by means of an interim injunction are all unreal and imaginary.
13. The principles which govern the grant or refusal of an interim injunction in aid of the plaintiff's right are all well settled and they depend upon a variety of circumstances. In the nature of things, it is impossible to lay down, any set, rigid or general rule on the subject by which the discretion of the Court ought in all cases be regulated. As the plaintiff, by the interim injunction undoubtedly seeks to interfere with the rights of the opponent before the plaintiff's right is finally established, the injunction is not granted as a matter of course and it is necessary for the plaintiff to make out a strong prima facie case in support of the right that he asserts. It is true, that at the interlocutory stage, the Court should not embark upon a detailed investigation on the relative merits of the contentions of the parties and it is enough if the plaintiff raises questions of a substantial character calling for decisions after an examination of the facts and the law arising in the case. The Court can consider the nature and the merits of the rival contentions at the interlocutory stage only as bearing upon the limited question as to whether or not the plaintiff has made out a strong prima facie case. The Court should avoid expressing any opinion on the merits which would partake the character of a decision of the main issues in the case. The plaintiff should next make out that the Court's interference is necessary to protect him from an injury or mischief which is imminent and it is at the same time irreparable. He should make out that the injury is so serious, irreparable and imminent that an immediate order of Court is necessary even before his rightsare established at the trial. Inseparably connected with this, is the burden, which lies upon the plaintiff to make out, that the comparative mischief or inconvenience which would ensue from withholding the injunction would be far greater from what would ensue from the injunction being granted. Lastly, which again is a very important consideration, is that in considering whether an interim injunction should be granted, the Court must have due regard to the conduct and dealings of the parties, before the application is made to the Court, by the plaintiff to preserve and protect his rights, since the jurisdiction to interfere, being purely equitable, is governed by the equitable principles (Vide 21, Halsbury's Laws of England, paragraphs 766 and 767).
14. On the question of the balance of convenience and the threatened mischief or injury irreparable or otherwise, regard must be had to the nature of the suit and the particular right asserted like suits against Government, Public Corporations, Municipal Corporations, Statutory bodies. Social clubs and its members. Societies registered under the Societies Registration Act and its members distinguished from litigation between private individuals. In the case of clubs and Societies registered under the Societies Registration Act, the general principles governing the right of suit of an individual share holder or a member of the Company would apply and ordinarily the Court will not interfere with the internal management of the Society at the instance of one or some only of the members of the Society subject to well recognised exceptions (1) where the impugned act is ultra vires of the Society, (2) the act complained of constitutes fraud or (3) whether the impugned action is illegal. The Rules are made by the Society itself for the convenience of its members for regulating their own conduct as members and for regulating the affairs of the Society as an entity. A breach of any Rule made by the Society would not give rise to a cause of action for any member to rush to Court, it must be a case of manifest illegality or where the act of omission or commission is something which goes to the root of the matter. All the members would be bound by the decision taken by the general body though there may be some violation of some Rules provided it is something which could well be condoned and ignored by the general body (Vide Shridhar 'Misra v. Jaichandra. : AIR1959All598 ); Satyavart Sidhantalankar v. Arya Samaj, Bombay. AIR 1946 Bom 516 and Nagappa V. Madras Race Club. : AIR1951Mad831a .
15. Before I proceed further, it is necessary to set out in full the contentsof the two printed notices which were published on the 20th of May. 1967, about the general body meeting of the 11th of June, 1967, at 6-30 P.M. In the first notice, the particulars of the seats as representing particular group are given. Nominations for the several office-bearers are required to be sent before 5-30 P.M. on the 30th of May. The scrutiny of the nominations was announced to take place at 5-45 P.M. on the 30th itself in the premises of the Chamber. The polling was announced to take place on the llth of June, between 10 A.M. to 1 P.M. and 2 P.M. to 5 P.M. Particular attention of the members is drawn to Rule No. 8 regarding voting by authorised members with particular reference to the form in which the authorisation of a member has to be declared as the principal officer employed in the film business of the member. This notice winds up by saying that members intending to send their representatives may send in fresh authorisations for the general body meeting on the 11th of June, so as to reach the Chamber, 48 hours before the commencement of the meeting. In the other notice, the agenda is notified, one of which is the election of officebearers for 1967-68. It is in this notice attention of the members is particularly drawn to certain rules bearing upon the right of the members to vote; Rule No. 5 the subscription and Rules Nos. 8(1) and 36 voting by authorised representatives, Rule No. 35 that members whose subscriptions at the time should have been in arrears shall not be entitled to vote.
16. It is common ground that these two notices were widely circulated to all the members. Learned Counsel Sri Thyagarajan Iyer placed considerable stress upon the contents of these two notices on several aspects of the points in controversy. Even though the members had ample time to raise every objection at the time of the scrutiny of the nomination papers, no member raised any objection with regard to any of these members who the plaintiff now complains were not entitled to vote at the election. It is quite legitimate to presume that all the members knew and understood what exactly are the qualifications which a member belonging to the producers' group should possess and what is exactly meant by the words 'who is actually engaged in producing a picture at the time of his application', whether this qualification should be a continuing qualification even after he became a member, and what exactly are the activities in the production of the picture which the producer should have accomplished before his application for membership.
Learned Counsel for the respondents urged that if during the long continuous course of years, members were enrolled and were allowed to continue it could and should have been only because the members of the executive committee were of the opinion that they were still entitled to be on the rolls as producer members and that in interpreting the words 'actually engaged in producing the picture' the meaning to be given is the one which the members themselves attached to these words as manifested by their conduct all these years. If members ought not to continue in the producers' group on the rolls of the Chamber and if therefore they do not serve any useful or effective purpose towards promoting the objects of the Chamber and if still, they exercised votes and therefore controlled the activities of the Chamber, it is for the members to object at the time of the scrutiny. So long as they are members on the rolls and so long as no objection was raised either earlier or at the time of the scrutiny of the nominations and their names still continue, these members cannot be denied their right to participate in the election. He also urged that members are on the rolls for a long time and at this distance of time, all of a sudden, the legality of their voting cannot be objected after the voting has been over.
17. In the first notice there is the intimation that members who desire to send their authorisations for the forthcoming meeting may send before 48 hours before the date of the meeting. Here too the same argument was advanced by Sri Thyagarajan Iyer to the effect that all the members, for all these years, have uniformly understood Rule No. 8 as permitting authorisation at any time up to a limit of 48 hours before the meeting and that no member had understood Rule No. 8 in the sense that unless the nomination of the authorised representative was made forthwith as part and parcel of an application for the membership, authorised representatives cannot be nominated subsequently. He also urged that it would be absurd and anomalous to compel a member to nominate his authorised representative when he has no confidence in any other person and desires to attend the meeting himself all throughout. Further the necessity for an authorised representative need not be for ever. Inevitably there will be change of authorised representatives and there will be years in which there will be no authorised representative at all. To construe Rule No. 8 that there should be only one authorised representative, and that too, nominated immediately, after the admission to membership, would defeat the purpose of Rule No. 8 and practically render it futile and useless. Whether the provision inRule No. 8 is mandatory or directory or whether any delay thereto could be condoned are all matters, for the general body and if by a continuous course of conduct the members have worked out and applied this rule in this particular manner and if what happened this year is in consonance with the usual practice, the plaintiff who did not raise any objection, cannot question the legality of the election.
With regard to the argument about 48 hours, the same line of argument was adopted by learned Counsel, He urged that, in the context, 48 hours, would only mean till 10 A.M. on the 9th. The very fact that no particular member objected when nominations of authorised representatives were received till 9-30 A.M. shows that the members understood the rule only in this manner. Learned Counsel also urged that great significance should be attached to the fact that at the time of the scrutiny of the nomination papers, objections were raised and some nomination papers were also rejected. When that was the situation, it has to be necessarily inferred that at the time of the scrutiny of the nomination papers of other members they were all in order and therefore no objection was raised.
18. On the question as to who can properly claim as the 'principal officer employed in the film business' and whether factually that authorised representative possessed that qualification are all matters which should have been considered by the members and if they felt that persons without qualification were allowed to vote, the aggrieved members should have raised objection at the time of the scrutiny of the nomination papers. In this context it should be borne in mind that members are generally recommended by one member of the executive committee supported by another member and members are enrolled only after the executive committee carefully scrutinises all the details, the qualifications of the member or the associate member as the case may be and the plaintiff himself was in the executive committee, the previous years and he had full access to all the records.
19. Sri V.P. Raman attempted to meet this argument by urging that whether a particular member was actually engaged in the production of a picture, whether an authorised representative was the principal officer employed in the film business of the member concerned, are all factual matters which can be investigated only at the trial after evidence and arguments and that at the stage of the interlocutory application, they are not quite germane and that it is sufficient, if his client, the plaintiff had raised substantial questions of fact and laweven turning upon the proper interpretation of the rules, and that he need not establish at this stage that he is sure to succeed at the trial.
I am unable to accept this argument put in this abstract form as it would result in the position that a plaintiff has merely to allege and deny facts and on that ground ask for an interim injunction. As observed earlier, all the aspects cumulatively should be taken into account in determining whether an interim injunction should be issued. I see considerable substance in the argument of Sri Thyagaraja Iyer that 'if the contention of the other side were to be accepted, any disgruntled member bent upon mischief would be encouraged to rush to Court attacking factually the qualification of all the members on the rolls of the company or Society impeaching their elections taking refuge under the doctrine that he has raised substantial questions of fact which should not be gone into now but only at the trial and therefore a case has been made out for an interim injunction.' It is here the other contention that the plaintiff should make out a strong prima facie case conies into operation. Even in the supplemental affidavit, the plaintiff does not categorically deny that this has been the practice in the previous years. On the other hand the stand taken by the plaintiff is that this practice cannot be given effect to, for, it is opposed to the rules of the Chamber.
20. There is one important aspect which should be referred to at this stage. The suit is filed by the plaintiff in his individual capacity as a member of the Chamber for declaring the election of Honorary Secretaries, defendants 4 and5 and executive committee members res-presenting producers' group, defendants6 to 12 as illegal. He can succeed in the suit only by establishing that the producer members set out in Schedule A to the plaint, the authorised representatives set out in Schedule C to the plaint and the 212 authorised members whose authorisations were received late (not immediately after the enrolment of the members concerned) were not entitled to vote at the meeting. The suit is not analogous to an election petition to set aside the election under any statute, Municipal Acts or the Representation of the People Act where in a proceeding by a defeated candidate, the right of a voter or voters can be considered in the light of their qualifications, disqualifications subject of course to the finality attached to the names of those members being on the rolls at the time of the election. They are all cases in which the voters concerned get the right to vote by being residents of a particular place.
Here in the instant case, the right to vote is one of the privileges of a member of the Chamber and it is a matter for serious consideration whether in the suit as framed, the question of the continuance of these members as producer members, as authorised representatives etc. can be considered without they being parties to this proceeding. There is no point in this Court adjudicating upon the question whether the members in Schedule A to the plaint are actually engaged in the production of pictures and whether the members set out in Schedule C are not the principal officers of the film business of the concerned authorising members. Any decision in this suit will be of no avail and they will still continue to be on the rolls pi the Chamber unless an objection is raised in their presence and their answers are heard. It is necessary to remember that this right to vote, whether a right or a privilege, emerges from an inseparably connected status as a member of the Chamber. It would result in anomalous and absurd consequences if the Court were to uphold the plaintiff's objections, that these numerous members will not be members for the purpose of voting so far as this election is concerned, while vis-a-vis the Chamber they will undoubtedly and certainly continue to be members of the Chamber entitled to all the privileges like distribution of raw films and various other materials in the production of a picture etc., etc., and participation in the various other deliberations of the Chamber. The rights of all the members are governed by the rules of the Chamber.
It is elementary law that so long as a member continues to be on the rolls and has not been removed after hearing his objections, he will in law be entitled to all the privileges of the member and will also be liable to all his obligations. I cannot visualise a proceeding in which the question whether or not a person already on the rolls of the Society still continues to be member as such could be agitated and decided without the member or members concerned being parties to that proceeding. In my opinion, there is vital distinction between an election petition under a statute where one of the questions may be whether a voter or voters had a right to vote or was disqualified in voting without that question having any repercussion upon his other rights. For instance in an election dispute, the defeated candidate may establish that 500 voters were purchased by corruption and their votes should not be taken into account, but that analogy will not apply to the instant case in which the right to vote springs from his status as a member.
21. The position becomes a fortiori against the plaintiff applicant and in favour of the defendants-respondents, with regard to the large number of au-thorised representatives when the matter is looked at from the point of view of the members who have sent in the authorisation under Rule No. 8. At the election or at the deliberations of the meetings, the members concerned send in their representatives presumably to put forward and press their point of view, in the matter of the election of a particular candidate or candidates or upon particular aspects concerning the film industry in which they are vitally interested. If objections were raised at the proper time and the authorisations were rejected, the members concerned would have themselves participated in the meeting and cast their votes or expressed their points of view.
Now, at this stage to eliminate the voting or the views expressed by such large number of persons as many as 200 voters, would work gross injustice as by acceptance of the authorisations, the members concerned were all led to believe that their points of view would be heard at the meeting and their franchise exercised through their representatives. When all the members including the plaintiff have accepted and therefore represented to the authorising members that their representatives can vote at the meeting, the plaintiff nor even the Society as an entity, cannot thereafter refuse to take their votes into consideration. It would be opposed to all principles of natural justice if the Court were to hold that the votes exercised by all these 200 representatives are invalid without the authorising members being given an opportunity to defend their authorisations.
All these aspects clearly emphasise that the decision in the instant case will have to proceed only on the basis of the finality of the roll of the members of the Chamber as it existed on the date of the election and the plaintiff cannot question the accuracy of the roll That perhaps, is the reason why in the statutes regarding elections to Municipalities, local bodies etc., there is a statutory provision for the amendment of the electoral roll and a right to seek redress in a Court of law either in the initial or the subsequent stages of the election dispute. I am making these observations not as expressing my final opinion, but as merely indicating my view that the plaintiff has not made out a strong prima facie case and the right that he asserts in the suit 'as framed' is highly doubtful.
22. The next aspect that has to be considered is the question of balance of convenience and the irreparable mischief or damage which the plaintiff would sustain in ease the interim injunction is refused. As prefaced in my preliminary observations, this Involves two aspects.(a) whether the mischief or injury is irreparable and so serious and (b) whether the plaintiff's complaint of the threatened injury is real or merely illusory and imaginary. In the first place, it has to be borne in mind that it is established law that at the instance of one member Courts are highly reluctant to interfere; at any rate, would not lightly Interfere with the functioning of a corporate body or a Society. It is not a dispute between two private individuals, A large number of voters had arrived from various places at considerable expense and inconvenience and participated at the meeting and the interim injunction would result in a total suspension of the business and activities of the Chamber. The Chamber has to carry on its affairs and activities and very great inconvenience and mischief would be caused to the Chamber by the issue of an injunction restraining the office bearers from functioning as such.
The annexure to the supplemental counter affidavit of the defendants shows the various important matters which will have to be attended by the executive committee. It is familiar knowledge that at the present moment serious and vital problems and difficulties are confronting the film industry and the executive committee has to attend to those matters. The committee has to nominate members for serving on the Central Wage Board for Film Industry which is a vital concern to the industry. The executive committee has to take a decision as to the representation of the best South Indian film at the Film Festivals. The Chamber has to represent through its representative in the meeting of the Film Federation of India which is to be convened at Calcutta and the Vice President and Secretaries have to function in the Raw Film Committee. A perusal of this annexure shows the great magnitude of the problems which confront the film industry and the urgency for these matters being attended to. The position is so obvious and lies on the surface that it does not require much of an elaboration to hold that the balance of convenience is all in favour of the defendants and the damage or the prejudice that will be sustained by the defendants by the issue of an Interim injunction would be irreparable and cannot by any means be compensated in damages and neither the plaintiff nor the Court could do anything which could repair the damage or afford adequate restitution or compensation.
As against this, let me examine what the balance of convenience in favour of the plaintiff is. Except the existence of party faction which may be presumed because of the contest in the elections in the group of representatives of the producers' group, the plaintiff does not allegeany malice or ill will or ulterior motive on the part of the defendants either as a group or individually. Mr. Raman's argument is that when every deliberation, decision and activity and action taken by the Chamber should be in a representative character by the members of the executive committee, all acting together as one unit, such a thing is not secured when the election of honorary secretaries and the committee members under the producers' group are under challenge and that any decision taken by a committee composed of such members itself Would be irreparable damage and mischief done to the Chamber if ultimately it should be held the election of, those office bearers is invalid.
I am unable to accept this argument. This argument does not give adequate consideration to the important fact that the election of all the office bearers is not attacked in the suit and the attack is confined only to the election of Secretaries and the seven members of the executive committee. Learned Counsel urges that when party faction has crept into the activities of the Chamber, the plaintiff could legitimately apprehend that in that spirit of party faction, the executive committee would take decisions of drastic consequences involving dissipations of the finances of the Chamber and also do things that will be prejudicial to the particular group, i.e., the producers' group.
This complaint appears to be purely imaginary and illusory. Out of the 22 members constituting the executive committee, the members whose elections are challenged are only 9, the rest of the office bearers were elected unopposed or unanimously which means the plaintiff and the members of his group have full confidence in the rest of those office bearers who are so elected unanimously. It cannot be readily imagined and assumed that these responsible office bearers like the Vice-President, Treasurer etc., would support any move or decision which would be detrimental to the interests of the Chamber. It cannot be seriously suggested that the rest of the members of the executive committee would act as mere puppets and would allow themselves to be easily led by defendants 4 to 12 even assuming that defendants 4 to 12 would make suggestions and put forward moves not in the interests of the Chamber but merely to spite the plaintiff and the members of his group. Why should we presume that when the construction of the building is in progress and when bills are paid from time to time after taking a certificate of the architect monies would be disbursed in a reckless manner with a view to dissipate the resources of the Chamber purely out of spite?
Again, it is absurd to imagine that in the several matters set out in the annexure to the supplemental counter affidavit, the members of the executive committee would not represent the proper and correct point of view of the Chamber in general but would take a partisan view, being led by defendants 4 to 12. One can understand the plaintiff having some kind of statable grievance at least, if in the action he questions the legality of the election of all the office bearers. The rest of the members of the executive committee are respectable persons and they have been elected unopposed and unanimously.
As mentioned above, so far as the rest of the office bearers are concerned, the plaintiff has not made any specific complaint of a personal nature. The argument was more in the nature of a legal argument in the abstract, that the executive committee consisting of all the members should not be allowed to function as one unit when the election of some of the members of that executive committee is under challenge. It is obvious that the question of balance of convenience has to be decided only with reference to actual realities of the factual position, and not by a mere doctrinaire approach in the abstract.
In this connection, I may refer to the decision in J.K. Choudhury V. Hem Chandra, AIR 1956 Assam 82 in which the facts and the main situation were somewhat similar as in the instant case. There the plaintiff brought a suit against the governing body of a college consisting of 16 members claiming a declaration that five co-opted members in the governing body were not validly co-opted and that the governing body was not validly constituted; the plaintiff also prayed for an injunction restraining those members from working as members in the governing body, of that institution It was held, the governing body had to discharge several important functions and those functions would be stultified if it was not allowed to function and that the balance of convenience was entirely in favour of the institution demanding that the governing body should continue to function.
There too, the same argument was advanced that all these members who were alleged to have been wrongfully co-opted by being in the executive committee at its deliberations would effectively contribute to do things which were prejudicial and detrimental to the interests of the institution like unauthorised and reckless dissipation of the funds of the institution, but the argument was rejected in these terms:
'I wonder how on such a slender foundation the functioning of the governing body could be altogether stopped when there was no allegation against the individuals concerned. Even if it is ultimately held that these co-opted members were not validly elected -- a possibility somewhat remote -- even then, there is nothing to indicate that by allowing them to function as such during the pendency of the suit the cause of the institution would be seriously prejudiced. No case to that effect has been made out by the plaintiffs at all.
The other members of the governing body are either ex officio members of the institution or persons nominated by the Government and the University. They can always keep a check upon the co-opted members if they wanted to do anything prejudicial to the institution even assuming that those members were properly elected. It is the function of the governing body to transact all business in connection with the institution and control the budget and the disbursements.
All the functions would be stultified if the governing body was not allowed to function even as it is. As I have said, there is no clear finding in either of the two judgments of the Courts below that there was any injury likely to be caused to the plaintiffs. Indeed there is no definite allegation either. In such a case, an order of injunction restraining the defendants to function was absolutely uncalled for. On the contrary, the balance of convenience was entirely in favour of the defendants and the interest of the institution demands that the governing body should continue to function.
It is suggested that probably some unauthorised expenditure may be incurred by the present governing body in the name of the institution. As I have said, there are already a number of persons there who are expected to control the co-opted members. Even as against the co-opted members there is not a word of complaint.'
I have no hesitation in holding that the apprehensions of the plaintiff are more Imaginary than real and it would be highly unfair to the members of the executive committee consisting of responsible and respectable members to speculate that they would deliberately do anything detrimental to the interests of the Chamber. In this connection it has to be noticed that it is not even the case of the plaintiff that the producer members were elected by any particular party or faction opposed against the plaintiff or the members of his group so as even to afford a foundation for an argument that these members would instigate the other members of the executive committee to do things solely with a view to spite the plaintiff and the members of his group.Defendants 4 to 12 are all members elected in the general body meeting in accordance with the practice which has been in vogue for all these years and the fact that the legality of their election is challenged does not by itself lead to the inference that they will function in the executive committee to the detriment of the interests of the Chamber.
23. In this view it is unnecessary to elaborately consider the various suggestions made by Sri Raman as to how the scope of the interim injunction could be restricted. For instance with regard to the functions of the activities of the Raw Film Committee which undoubtedly performs very important functions from the point of view of members of the Chamber, Mr. Raman contended that according to the rules prevailing from 1957, the Secretaries are not doing any important function; their job is merely the ministerial act of convening the meeting and that this can be done by any other member and an interim injunction would not interfere with the activities of the Chamber. On the other hand Mr. Thyagaraja Iyer drew my attention to the proceedings of the Chamber dated 21-7-1965 at which rules of the Raw Film Committee have been amended allotting effective functions to the Secretaries of the Chamber, They are all made ex-officio members of the Raw Film Committee and the duty is cast upon them to participate to the deliberations of the committee.
In a proceeding of the Chambers dated 1-8-1966, the plaintiff was present in the executive committee meeting in which the amendments of the rules of the Raw Film Committee dated 21-7-1965 were approved and it was treated as a subcommittee of the executive committee. On this, arguments were advanced, as to how far the executive committee of the Chamber can amend the rules of the Raw Film Committee, but it is unnecessary to pursue that discussion as the fact remains that the plaintiff himself was a party to the proceedings of the Chamber at which the office bearers were made ex-officio members of the Raw Film Committee. Today the Raw Film Committee functions only in accordance with the reconstitution as per the resolution of the Chamber dated 21-7-1965. It would create confusion and complications if it were to be held that deliberations and proceedings of the Raw Film Committee cannot be conducted in pursuance of the later resolution,
At any rate, at the stage of this interlocutory application, it will not be open to the plaintiff to take up the position that the Secretaries are not ex-officio members of the Raw Film Committee. To sum up, therefore, I have not the slightest hesitation in holding that the plaintiff, who after all is only one individual member of Chamber has not made out any case for holding that the balance of convenience is in his favour so as to suspend the activities of the Chamber which has in its roll about 1600 members.
24. It only remains to deal with the conduct of the plaintiff as bearing upon the discretion of the Court and on which repeated stress was laid by Sri Thyagaraja Iyer. The notices were furnished on the 20th of May and the plaintiff had ample time to raise his objections and have the electoral rolls rectified. The two notices, as observed earlier, set forth all the details, drew pointed attention of the members to Rule No. 8 and Rules 5 and 36. The plaintiff who was in the Executive Committee on prior occasions had full knowledge and was fully alive to the alleged defects existing in the roll of the members of the Chamber. He stood as a contesting candidate and deliberately took a chance of being elected on the basis of this defective electoral roll. It is only when the election went against him, he has raised these objections.
25. It is established law that if in such a situation, when a party who has acquiesced in the election to which he objects or he is raising an objection which might have been put forward against himself on a previous election or in the same election, he participated in the election, contested for a seat in the election, the Court in the exercise of its discretion will refuse to award him any relief. This rule has been uniformly applied in all proceedings where the parly concerned applied for the issue of a writ of quo warranto. It is sufficient to refer to the following observations of Mellor, J., in the leading decision in R. v. Lofthouse, (1866) LR 1 QB 433:
'The relator must not be disqualified by having acquiesced or concurred in the act which he comes to complain of, or in similar acts at former elections.'
Shee, J., said;
'Cases have been brought to our notice which show that where a man with the knowledge of the irregularity of a particular course, nevertheless concurs in it, he cannot afterwards take advantage of the irregularity. In the present case Mr. Maw voted on a voting paper which he knew or believed to be irregular. He therefore comes precisely within the rule enunciated by Lord Kenyon, C.J. in Rex v. Clarke, (1880) 1 East 38 . The Courts have on several occasions said and said wisely, that they would not listen even, to a corporator who has acquiesced or perhaps concurred in the very act which he afterwards comes to complain of when it suits his purpose; and so far I think we have determined rightly. 'And there are other cases tothe same effect. The present relator has concurred in the very act he now complains of, for he has used voting papers in blank in this very election and in others. Therefore in the exercise of our discretion, we ought not to assist him.'
The principle of this case has been followed and applied in several cases in India. Reference may be first made to the decision in Miss Cama v. Banwarilal, AIR 1953 Nag 81 in which it was held that the Court would not listen to a candidate who has acquiesced or concurred in the very act which he afterwards comes to complain of, when it suits his purpose. In that case the petitioner was not allowed to question the election as she was aware of the provision; she was an advocate and at the time of the scrutiny of the nominations of the contesting candidates, she did not raise any objection, but waited till she was defeated in the election.
I may next refer to the Bench Decision of this Court in A.R.V. Achar v. Madras State. : AIR1954Mad563 in which the applicant for the issue of a writ of quo warranto acquiesced in and actually contested the election and it was held that the petitioner had by his own conduct precluded himself from obtaining the discretionary relief in the hands of the Court. (Vide observations at page 109 where the principle of the decision (1866) LR 1 QB 433 is discussed). The same principle was applied in a Bench judgment of the Patna High Court consisting of Ramaswamy, C.J., (as he then was) and Choudhary, J., in the case of municipal elections and it was held that when the petitioner with full knowledge of the illegality participated in the election and thus acquiesced or concurred in the election, the Court would in its discretion would refuse him any relief.
It is unnecessary to multiply the cases on the point and it is sufficient to refer to the latest Bench decision of this Court consisting of Chandra Reddy, C.J., and myself in which a person who acquiesced in the election being conducted on the basis of the division of wards effected by the Inspector under the Madras Panchayats Act was refused the discretionary relief under Article 226 of the Constitution on the ground that he could not be allowed to raise an objection which might have been put forward against himself at a previous election or cognizant of the objection and acquiesced in the same.
26. Though these are all decisions rendered in applications for the issue of a writ of quo warranto, on principle, it cannot make any difference, because in the instant case, the plaintiff has filed a regular suit and asked for an interim Injunction. InBhupendra Nath Basu v. Ranjit Singh. ILR 41 Cal 384AIR 1914 Cal 152 where the plaintiff filed a suit under Section 42 of the Specific Relief Act seeking the declaration of the invalidity of an election, it was held that as the grant of a declaratory relief was essentially in the discretion of the Court, the principles followed by the Courts of Common Law in granting or refusing prerogative writs should apply to such suits. Fletcher, J., observed as follows at page 391:
'In my opinion in a suit of this nature what you have got to do is this. You have got to apply the principles of the Courts of Common Law in granting or refusing the prerogative writs. Those were reasonable rules which were founded on experience not of many years but of centuries. Those were the rules which governed the practice of the Courts as to interfering in cases of disputes relating to elections to all bodies other than the two Houses of Parliament, which are not subject to the jurisdiction of any Court, but decided for themselves who were elected and who had the right to sit and vote in either of those two Houses. But in all other bodies the right of election in which the Court had jurisdiction to interfere was governed by the principles by which the Courts of Common Law granted or refused the prerogative writs.'
In that case, the discretionary relief of declaration was refused having regard to the particular conduct of the plaintiff. The same principle was applied in the case of a Taluk Board Election, the validity of which was questioned under Section 42 of the Specific Relief Act by a Bench of this Court in Lakshminarasimha Somavagiyar v. Ramalingam Pillai, 39 MLJ 319 AIR 1920 Mad 573 following the decision of the Calcutta High Court in ILR 41 Cal 384 AIR 1914 Cal 152. In that case also the plaintiff competed for the seat, participated in the election and acquiesced in every step in the election till he sustained defeat at the elections and then brought the suit Sadasiva Iyer, J., observed that the conduct of the plaintiff in having accepted the election proceedings as having been regularly begun is sufficient to disentitle the plaintiff from the relief even assuming that a valid electoral register did not exist (Vide observations at page 324). Spencer, J., stated the law in similar terms at page 329, after pointedly referring to the decision of the Calcutta High Court:
'The plaintiffs suit deservedly fails for another reason. When the register was prepared he did not adopt the procedure provided by Rule 10(4) of objecting up to the 20th of September. The election was on October 2nd and in his petitionto the Collector, dated October 6th (Exhibit L) he did not raise this point. He went to the poll on the footing of the register being a valid one. The technical point he has taken in these proceedings is evidently an after-thought. He is therefore not entitled to the equitable relief of a declaration on a matter connected with the preparation of an electoral register. In ILR 41 Cal 384 AIR 1914 Cal 152 it was held that in similar circumstances connected with an election where the conduct of the plaintiff had been remiss and dilatory, the Court ought not to interfere and give him a declaratory decree in the exercise of its discretionary jurisdiction, under Section 42 of the Specific Relief Act.'
Confronted with this well-established rule which regulates the discretion of the Court, Sri V.P. Raman made an attempt to distinguish these cases on the ground that in the instant case, his client could not have raised an objection at any earlier stage. He could not have anticipated all these members who were wrongly on the rolls to participate in the election and that it is only when he felt aggrieved as a result of the defeat at the elections that the plaintiff could possibly agitate the matter in the suit. He also relied upon a decision of the Calcutta High Court in S. K. Sawdav v. N. Singha Roy, ILR 1944 2 Cal 464 AIR 1946 Cal 206. I am not prepared to accept this argument. It is open to the plaintiff or any member of the Chamber to apply to the executive committee to delete the names of members who according to the plaintiff have been wrongly enrolled or wrongly continued to be members and the executive committee is bound to consider that objection after giving notice to the members concerned and if the decision of the executive committee went against the plaintiff, he would be entitled to file a suit for rectification of the roll of members of the Society, just as in the case of shareholders' register of a Company. I do not see any principle of law by which a member is precluded from insisting that the electoral roll should be maintained correctly and that the electorate should not consist of members who do not satisfy the conditions and qualifications as prescribed by the rules. Surely, the plaintiff is not bound to meekly submit to the decision of the executive committee in the matter of the maintenance of the rolls of the members of the Chamber. It is a right which inheres in the members under the rules to protest against the inclusion of persons who are not qualified to be members. The decision of the Calcutta High Court relied upon by him is distinguishable as it related to a suit in which a person sought the relief that some person should be included in the rolls. EvenSO there are observations in that decision to recognise the right of the member to object to the wrongful inclusion of the members on the rolls of the Society distinguished from a right to claim for the inclusion of a person as a member.
If Mr. Raman'e contentions were to be accepted, it will be an intolerable state of law if the executive committee would be allowed to enroll members and swell the electorate without any regard to the relevant provisions of the rules and yet the members concerned will have no effective right to question the wrong decisions of the executive committee but would be obliged to meekly submit to its decision and agitate the question only in a suit after the elections are over. I have no doubt that the plaintiff could well have raised this objection at any time previously or at any rate after tha announcement of the election of the office-bearers by issue of the notice convening the meeting of the llth.
27. There is no need, to elaborate the point urged about the false personation as it does not contain anv particulars and how the false personation took place. The point about all the forms be-Lng in English again has no substance because these forms were used by thQ general body all these years without any objection by any member concerned and the elections were going on year after year with these forms.
28. Some point was made on behalf of the defendants that the plaintiff is only an associate member and he can-, not question the election and if at all it could only be by a member who has authorised the plaintiff. Prima facie my view is that the plaintiff who contested the election will have a right to question the legality of the election proceedings. It must be remembered that it is not the firm which becomes elected as an office bearer, but it is only the authorised member.
29. I had dealt with the matter in such great detail only because of the elaborate arguments addressed on both sides, the plaintiff attempting to make out patent illegalities on the face of the record while the defendants controverted the same. It is necessary to reiterate that the observations that are made in this judgment on the rival contentions of the parties do not by any means constitute any final decision of this Court on the point in controversy. These observations have been made only as bearing upon the question whether the plaintiff has made out a strong prima facie case,
30. Independently of these observations, I must say, I have refused the interim injunction on the main ground that the plaintiff is guilty of acquiescence and wrongful and unhealthy conduct and ha has not by any means come to Court with clean hands which is the essential foundation of his right to obtain the discretionary relief at the hands of this Court. I have also refused the interim injunction on the ground that the balance of convenience is all in favour of defendants and against the plaintiff.
31. Before I close, St has to be mentioned that this is a case in which the plaintiff could establish his case only after adducing evidence and even in the interlocutory application stage it became apparent that the plaintiff cannot therefore make out a prima facie case.
32. In these circumstances, the settled practice is to refuse an interim order and direct the immediate and speedy trial of the suit I therefore direct that the suit shall be posted tot trial and disposal within two month from today, i.e.. on the 4th of September 1967. Within two weeks from today, the defendants should file the written statements and within three weeks thereafter, there should be mutual discovery and inspection. The case will be posted for final hearing and disposal on the 4tb of September, 1967. The documents which were all seized by the Commissioner and produced in Court in Application No. 1217 of 1967 shall be returned back to the defendants 3 and 4 Secretaries of Defendant Chamber except the voters' list. The first defendant Chamber shall pay a sum of Rs. 250/- as additional remuneration to the Commissioner. The interim injunction is vacated and the applications are dismissed. There shall be no costs.
33. In this proceeding, I have not accepted the arguments and contentions of Sri V.P. Raman; even so, I wish to express my appreciation of the able andlucid arguments presented by him.