K. Balakrishnan Nair, J.

WA No. 2700/2007:

1. The appellant is the 3rd respondent in the writ petition. The writ petition was filed under Art.226 of the Constitution of India, challenging the validity of the election held on 23/09/2007 to the Managing Committee of the 5th respondent Cooperative Society. The appellant is one of the returned candidates. This Court admitted the writ petition and ordered notice on the respondents. This Court also passed an interim order restraining the newly elected Managing Committee from enrolling new members and also from making appointment of any employees. The appellant filed a counter affidavit, raising a preliminary objection that the writ petition is not maintainable under Art.226 of the Constitution of India. He submitted that the Cooperative Societies Act is a self contained code. It provides for an effective alternative machinery for resolution of election disputes. Further, it was also contended that as the disputes raised in this writ petition mainly fall within the realm of disputed questions of fact, the writ petition should be dismissed and the writ petitioners should be turned away to invoke the statutory remedy available to them. The appellant also prayed for vacating the interim order. But, the learned Single Judge overruled the objections raised on behalf of the appellant regarding the maintainability of the writ petition. The interim order was modified and it was ordered that if there is any urgent necessity for making appointment of employees in the Society, the respondents in the writ petition can move for permission of the Court to effect appointments. Feeling aggrieved by the said order dated 19/10/2007, this writ appeal is filed.

2. Sri. T. P. Kelu Nambiar, learned senior counsel appearing for the appellant submitted that the impugned order is an order, adversely affecting the interest of the appellant and therefore, it is appealable under S.5(i) of the Kerala High Court Act. Reference was made to the principles laid down by this Court in K. S. Das v. State of Kerala, 1992 KHC 366 : ILR 1993 (1) Ker. 1 : 1992 (2) KLT 358 (FB). The relevant portion of the said Judgment, relied on by the learned senior counsel reads as follows:

"Conclusion.-- (1) The word 'order' in S.5(1) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Supreme Court in Madhu Limaye's case AIR 1978 SC 47. The word 'order' is not confined to 'final order' which disposes of the Writ Petition. The 'orders' should not, however, be ad interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature."

The learned senior counsel also took us through the decision in K. K. Shrivastava v. B. K. Jain, 1977 (2) SCC 494 : AIR 1977 SC 1703 and contended that in view of the principles laid down therein by the Apex Court, the writ petition was liable to be dismissed. Special reference was made to para 4 of the said Judgment, which reads as follows:

"It is well settled law that while Art.226 of the Constitution confers a wide power on the High Court, there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we ne