(a) Civil Law — Interim Injunction — Order of — Direction to hold election of Gujarat State Basketball Association for office bearers — Also for candidate declared eligible on 09.07.2009 — And restraining defendants from acting as such — Held, order is sustainable in view of the fact that action of election officer dropping the election and declaring Defendant Nos. 2 to 4 as elected in per se illegal undemocratic and unconstitutional.

       Held :

       The election officer was required to go ahead with the election as per the election programme and to declare candidate elected on the basis of vote secured by the respective candidates. Therefore, in the facts and circumstances of the case when the action of the original defendant No. 5-election officer and the proceedings held on 19.7.2009 by the election officer dropping the election for all the posts of the office bearers of the defendant No. 1 association and to declare the defendants No. 2 to 4 as President, Honorary Secretary and Honorary Treasurer as reelected is per-se illegal, the learned Judge has rightly granted the mandatory relief directing the defendant No. 1 association to hold election of office bearers of the association and that too on the basis of the voter list prepared as per the election programme. It is to be noted that as such defendants No. 2 to 4 have not challenged voters list at all. It is also required to be noted that though the original defendants No. 2 and 3 are declared as reelected as President and Honorary Secretary respectively on 19.7.2009 by the defendant No. 5 election officer, they have filed the affidavits supporting the plaintiffs submiting that the action of the election officer to drop the election of the office bearers of the Basketball Association and to declare the defendants No. 2 to 4 as reelected is absolutely illegal and undemocratic. Therefore, even the beneficiaries to the proceedings dated 19.7.2009 and the beneficiaries to the decision of the election officer dated 19.7.2009 themselves have supported the plaintiffs by submitted that the action of the defendant No. 5 is absolutely illegal. From the documentary evidences on record it appears that majority of the district associations have objected the illegal action of the defendant No. 5 declaring the defendants No. 2 to 4 as reelected and droping election. Under the circumstances, learned trial Court has rightly treated the case as rarest of rare of case warranting such a mandatory relief which would be to preserve democratic process and the values. [Para 11]

       Head Note :

       (b) Civil Law — Election to Gujarat State Basketball Association — Declaring Defendant Nos. 2 to 4 elected without going through the process of election — Contention that decision was unanimous and was taken in presence of plaintiff, therefore, not open to challenge by them — Held, contention not sustainable because there is no evidence that plaintiffs were party to such an illegal decision — It is more so when Defendant Nos. 2 and 3 declared elected have filed affidavits that there was no such unanimous decision.

       Held :

       It is to be noted that it is the case on behalf of the plaintiffs and others that after the respective members gathered for the purpose of election some disturbance started by some unknown persons and unknown persons posing themselves to be the representative of the some district association and thereafter all of a sudden the election was dropped. Therefore, merely because in the attendance slip the respective plaintiffs as well as others signed that does mean that they are party to the decision to drop the election and to reelect the defendants No. 2 to 4 for the next term. It is to be noted that the communication by the original defendant No. 5 -Election Officer is only with respect to three posts i.e. President, Honorary Secretary and Honorary Treasurer and nothing is coming forth with respect to the other posts and office bearers of the association. Therefore, it cannot be said that the respective plaintiffs were parties to the said decision dated 19.7.2009 to drop the election and to reelect the defendants No. 2 to 4. Again at the cost of repetition, it is to be noted that so far as defendants No. 2 and 3 who also came to be reelected is concerned, as such they have supported the plaintiffs by filing necessary affidavits and reply to the Notice of Motion denying that there was such an unanimous decision. [Para 12]

       Head Note :

       (c) Civil Law—Interim relief—Order of—Tantamounting to granting Final relief that to mandatory in nature—Scope of—Held, there in no absolute imposition of Law that in no case the Court can not grant such relief in mandatory nature—Besides no such averment was made is written statement and defendant has heresy has participated in the election Process— In the facts & circumstances, in the case trial Court has committed any illegality in granting that said interim relief.

       Held :

       It is to be noted that the very appellant-defendant No. 4 had contested the election and offered the candidature by filling up the form. Therefore, when he has participated in the election to be held on 19.7.2009 by offering candidature by filling up the form, it not open for the appellant now to contend that on 19.07.2009 there could not be election of the office bearers. Even otherwise, it is to be noted that the election programme was declared by Notification date 5.6.2009 declaring the election programme and more particularly declaring dated 19.7.2009 as the date for election, the appellant-original defendant No. 4 has never objected to it till in the present Appeal from Order. Apart from that as stated above, once the appellant himself contested the election which was to be held on 19.7.2009 it is not open for the appellant now to make above submission. [Para 13]

       Now so far as main contention on behalf of the appellant-original defendant No. 4 that the learned Judge has materially erred in granting such an interim relief tantamounting to granting final relief and that too mandatory in nature is concerned, it cannot be disputed that there is no absolute proposition of law that in no case the Court cannot grant interim relief which would tantamount to granting final relief. It depends upon the facts and circumstances of each case. [Para 14]

       It appears that withholding of interim relief would tantamount to dismissal of the suit itself as by the time the main suit comes up for hearing there would be nothing left to be as though all the finding may be in their favour by the time the term of the defendants No. 2 to 4 would be over. Considering the facts and circumstances of the case, this Court is of the opinion that withholding of granting of such a mandatory relief to the peak and conscious of the Court and do violation to the sense of justice, resulting injustice being perpetuated throughout the hearing and at the end, the Court would not be able to effect the cause of justice. In the facts and circumstances of the case, it appears that withholding the interim relief as prayed for would be permitting the defendants No. 2 to 4 to hold the post illegally and unconstitutional and undemocratic manner and not permitting the plaintiffs and other members of the association to elect the office bearers of the association in democratic manner, which would perpetuate the illegality and injustice. Therefore, this Court is satisfied that this is a rarest of rare case warranting a mandatory relief which might be a final relief in the suit. [Para 16]