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2012 Supreme(Ker) 829
High Court of Kerala
THOMAS P. JOSEPH
Muhammad Thayyib & Others
Versus
A.P.Abdul Khader Maulavi & Others
R.S.A. No. 1279 & 1283 of 2010 & Cross Objection 42 & 43 of 2011
Decided On : 12-04-2012
For the Petitioners:S. Vinod Bhat, Advocate.
For the Respondents:V.V. Asokan, K.B. Sivaramakrishnan, Smt. Rukhiyabi Mohd Kunhi, Advocates.
A meeting convened by a person who is not authorized to do so is invalid. A person cannot be recalled from a committee unless there is a provision for such recall in the bylaw. A person cannot be prevented from using a name unless there is a likelihood of confusion or deception.
Headnote:
Kerala Naduvathul Mujahideen (KNM) is a society registered under the Societies Registration Act, 1860. Plaintiff Abdul Khader Moulavi is the General Secretary of KNM. Defendant 2 and others are members of KNM. In a meeting convened by defendant 2 on 17.08.2002, plaintiff was expelled from the post of General Secretary and defendants 1 to 3 were elected as President, General Secretary and Vice President, respectively. Plaintiff filed a suit for a declaration that the resolutions passed in the meeting are illegal and for injunction against defendants 1 to 3. Trial court granted declaration and injunction as prayed. On appeal, the judgment and decree of the trial court were confirmed. Hence these appeals by defendants 2 to 7.
Fact of the Case:
Plaintiff Abdul Khader Moulavi is the General Secretary of Kerala Naduvathul Mujahideen (KNM), a society registered under the Societies Registration Act, 1860. Defendant 2 and others are members of KNM. In a meeting convened by defendant 2 on 17.08.2002, plaintiff was expelled from the post of General Secretary and defendants 1 to 3 were elected as President, General Secretary and Vice President, respectively. Plaintiff filed a suit for a declaration that the resolutions passed in the meeting are illegal and for injunction against defendants 1 to 3. Trial court granted declaration and injunction as prayed. On appeal, the judgment and decree of the trial court were confirmed. Hence these appeals by defendants 2 to 7.
Finding of the Court:
The court held that the meeting convened by defendant 2 on 17.08.2002 and the decisions taken in that meeting are invalid. The court also held that the plaintiff is entitled to a decree for injunction restraining defendants 2 to 7 from using the name of the Kerala Naduvathul Mujahideen.
Issues: Whether the illegality in the election to the basic units will vitiate the dependent election and result in invalidating the entire election? Whether a provision in a bylaw for postponement of election can be construed as empowering extension of the term of all the committees when their terms are separately and expressly fixed under the bylaw providing that fresh elections are to be held before expiry of the fixed term? Whether appreciation of evidence by the courts below were perverse for non-consideration of the material facts and evidence specifically pointed out by the defendants? Whether failure to frame proper issues on material questions of fact and law vitiate the trial and caused prejudice to the defendants? Whether courts below are justified in declining relief of prohibitory injunction restraining the defendants from using the name of the Kerala Naduvathul Mujahideen by them after having sustained rest of the claims in the plaint and recognizing the plaintiff as the official Organization? Whether courts below are justified in relying on the decision in B.C.W.C.S(P) Ltd. v. I.C.W. Co-op. Society Ltd. (1999 [1) KLT 322) to decline the relief of prohibitory injunction restraining the defendants from using the name of Kerala Naduvathul Mujahideen by them especially the ratio in the suit judgment has no relevance to the context?
Ratio Decidendi: The court held that the meeting convened by defendant 2 on 17.08.2002 and the decisions taken in that meeting are invalid. The court also held that the plaintiff is entitled to a decree for injunction restraining defendants 2 to 7 from using the name of the Kerala Naduvathul Mujahideen. The court held that the bylaw does not provide for recalling any member though it provides for passing a no confidence motion. The court also held that the second defendant could not have independently exercised the right to convene the meeting unless he was authorized in writing by the General Secretary in his absence. The court further held that the plaintiff is entitled to a decree for injunction restraining defendants 2 to 7 from using the name of the Kerala Naduvathul Mujahideen.
Final Decision: The Second Appeals and Cross Objections are disposed of as under: (a) R.S.A. No.1279 of 2010 is dismissed. (b) R.S.A. No.1283 of 2010 is dismissed. (c) Cross Objection No.43 of 2011 in R.S.A. No.1279 of 2010 and Cross Objection No.42 of 2011 in R.S.A. No. 1283 of 2010 are allowed in the following terms: (i) Defendants 2 to 7 and the men under them are restrained by a decree for prohibitory injunction from using the name, "the Kerala Naduvathul Mujahideen" except by indicating, attached to that name itself in a conspicuous manner that it is an independent Organization, separate from the Kerala Naduvathul Mujahideen registered in the year, 1957 (represented by Shri Abdul Khader Moulavi as its General Secretary) and mentioning its registration number, if any and the year of registration. (ii) It will be open to the executing court to decide whether the separate identity provided by defendants 2 to 7 or other persons in control of their Organization as above directed, is sufficient for the purpose above stated and if found not sufficient, to issue necessary direction to defendants 2 to 7 or such other persons in control of the said Organization, in the matter. (iii) It is directed that the decree for prohibitory injunction granted hereby against the use of the name, the Kerala Naduvathul Mujahideen as above stated will take effect on the expiry of one month from this day. (iv) Parties shall bear their respective costs in the Second Appeals and Cross Objections.
The Second Appeals and Cross objections arise from the common judgment and decree of learned Third Additional District Judge, Kozhikode in A.S. Nos.230 of 2008 and 217 of 2008 respectively, and the Cross Objection in A.S. No.217 of 2008. Those appeals and Cross Objection were brought from the common judgment and decree of learned Additional Munsiff, Kozhikode-I in O.S. No.568 of 2002. R.S.A. No.1279 of 2010 is at the instance of additional defendants 4 to 7 while R.S.A. No.1283 of 2010 is preferred by defendants 2 and 3 (first defendant died pending the suit). Plaintiff has preferred the Cross Objections. Parties are referred as plaintiff and defendants for convenience.
2. The plaintiff is Shri A.P. Abdul Khader Moulavi claiming to be the General Secretary of the Kerala Naduvathul Mujahideen (for short, "the KNM"), Mujahid Centre, Anniehall Road, Kozhikode. Shri Abdul Khader Moulavi filed the suit on behalf of the KNM as its General Secretary, under Rule 8 of Order I of the Code of Civil Procedure (for short, "the Code") effecting necessary publication in that regard, originally against defendants 1 to 3 for a declaration that the resolutions passed at a meeting of the State Executive of the KNM convened by the second defendant on 17.08.2002 expelling Abdul Khader Moulavi from the post of General Secretary, etc., are illegal and for a decree for prohibitory injunction against defendants 1 to 3 trespassing into the office of the KNM, interfering with the said Abdul Khader Moulavi functioning as the General Secretary, against defendants 1 to 3 using the name of the KNM, its seal and letterhead and against their operating bank account of the KNM. Plaintiff alleged that the KNM is a Society registered in the year, 1957 under the Societies Registration Act, 1860 (for short, "the Act), Abdul Khader Moulavi was elected as its General Secretary and though the second defendant failed in getting elected as a Secretary, Abdul Khader Moulavi nominated him as a Secretary. During the relevant time, the second defendant was facing action for misappropriation of funds of the KNM. The ISM is the youth wing of the KNM. The KNM took action against some members of the ISM and expelled them. Some followers of defendants (1 to 3) filed O.S. No.533 of 2002 claiming that the ISM has no connection with the KNM and that the KNM has no control over the assets of the ISM. While so, a news item appeared in a vernacular daily that the State Executive meeting of the KNM convened by the second defendant on 17.08.2002 dissolved the State Executive, removed Abdul Khader Moulavi from the post of the General Secretary and elected defendants 1 to 3 as its President, General Secretary and Vice President, respectively. According to the plaintiff, no such meeting was convened and at any rate, second defendant had no authority to convene the meeting. Decisions if any, taken in the said meeting are illegal. The KNM has assets, is getting financial assistance from various sources and is running various institutions. Defendants 1 to 3 approached the bank with a claim that Abdul Khader Moulavi has no right to operate bank account of the KNM. Plaintiff apprehended that defendants (1 to 3) might trespass into the suit property belonging to the KNM, use its name, seal, letterhead, etc. Hence the suit.
3. Defendants 1 to 3 contended that Abdul Khader Moulavi has no right or authority to represent the KNM as he was removed from the post of General Secretary in the meeting of the State Executive on 17.08.2002. They contended that the meeting and proceedings held on 17.08.2002 are valid and that as office bearers defendants 1 to 3 are entitled to hold fresh elections (to the various bodies of the KNM) which were already overdue. Membership of the KNM expired in October, 2002 (later, amended as "by 31.12.2002").
4. pursuant to the publication under Rule 8 of Order I of the Code made at the instance of plaintiff, additional defendants 4 to 7 got impleaded in the suit.
