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2023 Supreme(Online)(GAU) 6345
GAHC010240392023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/166/2023 DISPUR BAROWARI PUJA SAMITI AND JYOTI KALA KENDRA AND 2 ORS.
REGISTERED SOCIETY HAVING ITS OFFICE AND PRINCIPAL PLACE OF BUSINESS AT GANESHGURI, DISPUR, GUWAHATI- 6 AND IS REPRESENTED BY ITS PRESIDENT SHRI RANJIT BARMAN
2: RANJIT BARMAN S/O LATE HAREN BARMAN R/O K.P. ROAD HOUSE NO.2
1ST BYE LANE JYOTIA GUWAHATI-6 KAMRUP(M)
ASSAM PRESIDENT DISPUR BAROWARI PUJA SAMITI AND JYOTI KALA KENDRA
3: AJAY GUPTA S/O LATE SACHIDANAND GUPTA R/O DISPUR GANESHGURI NEAR KAR BHAWAN GUWAHATI - 6 GENERAL SECRETARY OF PETITIONER NO. 1 IMPLEADED IN THE SUIT AS PLAINTIFF NO. 3 VIDE ORDER DATED
28/06/2023 OF CIVIL JUDGE NO.1 KAMRUP(M)
GUWAHAT VERSUS DWIJEN MOHAN DEKA AND 23 ORS.
S/O NOT KNOWN, RESIDENT OF SANKARPUR, HENGRABARI, GUWAHATI- 6
2:MAHESH BAISHYA S/O LATE KIRTAN BAISHYA RESIDENT OF C/O KRISHNA PHARMACY GANESHGURI GUWAHATI- 6
3:DWIJENDRA CHANDRA GOSWAMI S/O LATE RAJENDRA CHANDRA GOSWAMI RESIDENT OF BYE LANE 2 HILL SIDE JYOTIA P.S- DISPUR GUWAHATI- 19
4:BISHNU BORO S/O NOT KNOWN RESIDENT OF R.P. ROAD GANESHGURI GOWAHATI-06
5:MANAB MIHIR PATHAR S/O NOT KNOWN RESIDENT OF LALITA MARKET GANESHGURI GUWAHATI-06
6:AJIT BORO S/O LATE PARBAT BORO RESIDENT OF KACHARI BASTI GANESHGURI NEAR DISPUR COLLEGE DISPUR GUWAHATI- 6
7:JAYANTA KUMAR DAS S/O LATE DEVEN DAS RESIDENT OF HENGRABARI SANKARPUR PS DISPUR GUWAHATI- 6
8:ANITA DEKA W/O INDRA DEKA RESIDENT OF HENGRABARI SANKARPUR POLICE STATION- DISPUR GUWAHATI-06
9:DIPAMANI DAS W/O JATIN DAS RESIDENT OF SAPTA SAHEED PATH BYE LANE NO 2 SORUMOTORIA NEAR BAGESHWARI MANDIR POLICE STATION DISPUR GUWAHATI - 6
10:MINAKSHI BAISHYA W/O DILIP BAISHYA RESIDENT OF GANESHGURI CHARIALI PS DISPUR GUWAHATI-6
11:SOMESHWAR TERON S/O NOT KNOWN RESIDENT OF HENGRABARI GUWAHATI-06
12:PRATIVA BORA W/O NOT KNOWN RESIDENT OF WALFORD CHRISTAN BASTI GUWAHATI-05 13:RABIN DAS S/O NOT KNOWN RESIDENT OF JYOTIA POLICE STATION- DISPUR GUWAHATI - 19
14:HEMANTA SWARGIARY S/O NOT KNOWN RESIDENT OF KACHARI BASTI GUWAHATI-05
15:ANJALI BORO W/O NOT KNOWN RESIDENT OF KACHARI BASTI GUWAHATI-05
16:RAJESH BARMAN S/O LATE AUROBINDO BARMAN RESIDENT OF JYOTIA POLICE STATION- DISPUR GUWAHATI- 19
17:BIDYUT BORO S/O NOT KNOWN RESIDENT OF KACHARI BASTI GUWAHATI-05
18:SAIBAL DAS S/O NOT KNOWN RESIDENT OF NEAR JAIN MANDIR GUWAHATI-06
19:BHASKAR BORO S/O NOT KNOWN RESIDENT OF NEAR DISPUR COLLEGE GUWAHATI-06
20:NIRMAL BAISHYA S/O NOT KNOWN RESIDENT OF JYOTIA POLICE STATION- DISPUR GUWAHATI- 06
21:BHADRESHWAR TUMUNG S/O NOT KNOWN RESIDENT OF HENGRABARI POLICE STATION - DISPUR GUWAHATI - 06
22:BHABEN SINGH BASUMATARY S/O NOT KNOWN RESIDENT OF G. S ROAD GANESHGURI DISPUR LABU NIVAS GUWAHATI -06
23:DULAL BORO S/O NOT KNOWN RESIDENT OF DISPUR KACHARI BASTI GANESHGURI NEAR DISPUR COLLEGE DISPUR GUWAHATI- 06
24:PRANJYOTI BAYAN S/O NOT KNOWN RESIDENT OF SANKARPUR HENGRABARI GUWAHATI- 0 Advocate for the Petitioner : MR. S P ROY Advocate for the Respondent : MR. B D DEKA BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
19.10.2023 Date :
Heard Mr. S.P. Roy, learned counsel for the petitioners. Also heard Mr. B.D. Deka, learned counsel for the respondents.
2) The petitioners are the plaintiffs in T.S. No. 397/2021, which is pending for adjudication in the Court of Civil Judge (Senior Division) No. 1, Kamrup (M), Guwahati. In the said suit, the petitioners have, amongst others, prayed for declaration to the effect that its Executive Committee, including its office bearers and members was legally and validly formed in the General Meeting dated 29.10.2021 of the petitioner no. 1 society and that the respondents herein have no right to hold the election of the said society; for declaration that the notices vide document nos. 7 to 9 and notification dated 06.12.2021 was illegal, void, inoperative, ultra vires to the Constitution of the appellant no. 1 society; for permanent injunction; etc.
3) Along with the said suit, the petitioners had also filed an injunction application under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, which was registered as Misc. (J) Case No. 628/2021. In the said interlocutory application, it was prayed, inter alia, to restrain the respondents, their servants, employees, workmen and agents from claiming themselves as office bearers and members of the Executive Committee of petitioner No. 1; and to restrain them from causing any nuisance, annoyance, threat, initiation (sic.) to the petitioner no. 2 in running the affairs of the petitioner no. 1 in any manner.
4) Initially ad interim injunction was granted by order dated 09.12.2021, restraining the respondents from causing any nuisance, annoyance, threat, initiation (sic.) to the petitioner no. 2 in running the affairs of the petitioner no. 1 in any manner. The respondents had filed their written objection against the injunction application. It appears that the learned counsel representing both sides had made oral submissions and also filed written note of submissions. However, after hearing the learned counsel for the petitioners and respondents, vide order dated 18.03.2023, the said ad interim order of injunction dated 09.12.2021 was vacated and the said Misc. (J) Case No.
628/2021 was dismissed.
5) The petitioners had preferred an appeal under Order XLIII, Rule 1(r) CPC, which was registered as Misc. Appeal No. 7/2022 before the Court of the learned District Judge, Kamrup (M), Guwahati, which was made over to the Court of learned Additional District Judge No.2, Kamrup (M), Guwahati for disposal. Along with the said appeal, the petitioners had also filed an injunction application under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, which was registered as Misc. (J) Case No. 40/2023. The said appeal was dismissed by order dated 07.10.2023.
6) The said order is assailed by the petitioners by filing this application under Article 227 of the Constitution of India.
7) Heard the oral submissions made by the learned counsel for both sides and perused the materials on record. They have both relied on their respective written notes of submissions filed before the learned first appellate Court.
8) Moreover, with the permission of the Court, the learned counsel for the respondents has provided photocopy of the evidence of three witnesses examined by the petitioners before the learned Trial Court in connection with Misc. (J) Case No. 628/2021, namely, Ranjit Barman (PW-1) (appellant no.2), Ajay Gupta (PW-2), and Khagen Das (PW-3). The same is retained on record.
9) In brief, the submissions of the learned counsel for the appellant are that the judgment of the Courts below is perverse, because of factual errors contained in the order. In this regard, it was stated that the illegal elections and counting was notified to be held on 12.12.2021 from 08.00 am. To 2.00 pm., but the results of the illegally held elections was hurriedly declared on 06.12.2021, but in the order, it was mentioned that election result was declared on
12.12.2021.
10) It was also submitted the Constitut
