K. VENKATARAMAN, J

The election petitioner has come up with the present application for grant of interim injunction restraining the 5th respondent (Returned Candidate) from functioning and acting as a Member of Legislative Assembly at 78, Rishivanthiyam Assembly Constituency and as well as the Leader of Opposition to Tamil Nadu Legislative Assembly till the disposal of the election petition in E.L.P.No.12 of 2011.

2. It is the case of the applicant that she has filed the election petition to declare the order of the Returning Officer dated 28.3.2011 rejecting her nomination as improper, invalid and illegal and also to set aside the election of the 5th respondent, the Returned Candidate from the Rishivanthiyam Assembly Constituency. The further case of the applicant is that she made out a strong and sufficient ground in her election petition and if her election petition is allowed, the entire functioning of the Returned Candidate and his function as Leader of opposition to the Tamil Nadu Legislative Assembly are liable to be questionable and voidable. Therefore, it has become necessary for her to seek an order of interim injunction restraining him from functioning and acting as Member of the Legislative Assembly as well as the Leader of Opposition.

3. Counter affidavit has been filed on behalf of the 5th respondent / Returned Candidate. The following statements are made in the counter affidavit:-

(a) The election petitioner has no locus standi to seek an order of interim injunction. It is a clear abuse of process of this Court.

(b) There is a specific bar under Section 84 of the Representation of the People Act, 1951. The said section contemplates that the petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Therefore, the applicant cannot seek interim injunction against him.

(c) An application under Order 39 Rule 1 and 2 C.P.C. is not applicable to the Representation of People Act, 1951. Even assuming that the election petition is a suit, it cannot be said that it is a suit for restraining the 5th respondent from committing any breach of conduct or other injury of any kind. Interim injunction as provided under Order 39 Rule 1 and 2 C.P.C. can be granted only if the suit is for restraining the defendant from committing breach of contract or other injury of any kind. Therefore, the application under Order 39 Rule 1 and 2 C.P.C. is not applicable to the election petition.

(d) The election petition was not aimed at restraining the opposite party from committing the breach of contract.

Thus, counter affidavit seeks for the dismissal of the present application.

4. On the above pleadings, I have heard the applicant / party-in-person and the learned Senior Counsel appearing for the Returned Candidate.

5. The first and foremost submission that was made by the learned counsel appearing for the Returned Candidate is that the application under Order 39 Rule 1 and 2 C.P.C. to restrain the Returned Candidate from functioning and acting as a Member of Legislative Assembly as well as the Leader of Opposition to Tamil Nadu Legislative Assembly is not maintainable. In support of this contention, the learned counsel appearing for the Returned Candidate relied on the following judgments:-

(i) AIR 1924 MADRAS 797 – Venkatasubbiah Chettiar vs.Sesha Aaiyar.

(ii) AIR 1963 ALLAHABAD 518 – Rameshwar Dayal vs. Sub Divisional Officer, Ghatampur and others.

(iii) AIR 1972 GOA, DAMAN & DIU 14 – G.Y. Bhandare vs.Erasmo de Jesus Jack Sequiers and others.

(iv) AIR 1958 SUPREME COURT 698 – Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and others.

(v) AIR 1967 BOMBAY 317 – Jagannath Pundlik Date and others vs. Sukhdeo Onkar Wankhede and others.

(vi) (1994) 106 PLR 671 – Sukhdev Singh v. Executive Magistrate And Ors.

(vii) (1980)2 GLR 1 – Somabhai Kacharadas Patel vs. Patel Becharbhai Shambh