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2024 Supreme(Online)(Ker) 82635
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J
ASSOCIATION FOR THE WELFARE OF THE HANDICAPPED – Appellant
Versus
K.P.MOHAMMED – Respondent
OP(C) NO. 1368 OF 2024 | O.S No.667/2010 | AS No.1/2017 | RSA Nos.111/2018 | 146/2018 | 149/2018
For the Appellants/Petitioners: P.B.Krishan, Visakha Jain
For the Respondents: P.A.Harish
The Court upheld that pending Civil Appeals do not prevent the execution of trial court orders unless specifically stayed, affirming the practicality of maintaining organizational directives post-preliminary decree.
Headnote:(A) Law of Civil Procedure - Principle of Competence - Preliminary Decree - The Court affirmatively guided the engagement of Advocate Commissioner for supervising the General Body meeting and Election following a Preliminary Decree established under O.S. No. 667/2010, later modified by the Appellate Court regarding membership count. The Appellate Court maintained directives for election execution based on trial findings. (Paras 1-3)
(B) Jurisdiction of Supreme Court - The pendency of Civil Appeals does not inhibit trial proceedings in the absence of a stay order, indicating a necessary distinction between preliminary and final decree statuses in judicial management. (Paras 12-13)
Facts of the case:
This case involves disputes regarding the management of an Association for the Handicapped, with multiple suits arising from changes in membership, leading to judicial determinations about managing elections and maintaining organizational directives. The Appellate Court altered the number of members from 42 to 18 and set conditions for future elections.
Findings of Court:
The Court determined that preliminary steps for election could proceed without a Final Decree Application being filed, while also emphasizing the need for judicial restraint in light of pending Supreme Court Civil Appeals.
Issues: The main issues included whether the Trial Court could proceed with the election management despite the pendency of Supreme Court appeals and the maintainability of applications for managing the Association's elections without a formal Final Decree.
Ratio Decidendi: The court reiterated that the absence of a stay in pending Supreme Court matters allows lower courts to carry on with outlined procedures, ruling that preliminary decrees permit administrative actions despite ongoing appeals. The decision underscores the essential distinction between preliminary and final decrees guiding trial court responsibilities.
Result: The Original Petition is disposed of with authorization for preliminary election actions while imposing a two-month hold on actual elections.
| Table of Content |
|---|
| 1. management disputes of the association. (Para 1 , 2 , 3) |
| 2. appointment of advocate commissioner. (Para 4 , 5 , 6) |
| 3. analysis of pending civil appeals. (Para 8 , 11 , 12) |
| 4. arguments on appointing the advocate commissioner. (Para 9 , 10) |
| 5. continuing proceedings without final decree. (Para 13) |
| 6. disposal of original petition with conditions. (Para 14 , 15) |
JUDGMENT
1. Several suits were filed on account of the management disputes of the first petitioner Association. The Principal Munsiff Court No.I, Kozhikode, passed Preliminary Decree in O.S No.667/2010 as per Ext.P1 judgment declaring that as on 01/04/2008 the Association was having 42 members (since D2 is no more as on the date of the judgment, only 41 members available), appointing Advocate Commissioner for supervising General Body meeting of the members of the Association and for election of the Executive Committee consisting of 13 members including Office Bearers as per Ext.A5 Bye- Laws giving notice to all the members. The Advocate Commissioner was directed to act as Returning officer in the Election and was directed to complete the election within a period of two months from the date of judgment.
2. Aggrieved by Ext.P1 judgment, AS No.1/2017 was filed by the Plaintiffs before the First Appellate Court and the First Appellate Court modified the Preliminary Decree passed by the Trial Court as per Ext.P2 judgment declaring that as on 01/04/2008, the Association was having altogether 18 members, since the 2nd defendant died during pendency of the suit, there are 17 members. The names of the 17 members are also stated in Ext.P2 Appellate Court judgment. The further directions of the Trial Court with respect to the appointment of Advocate Commissioner and conduct of elections were maintained by the First Appellate Court.
3. RSA Nos.111/2018, 146/2018 and 149/2018 were filed before this Court challenging Ext.P2 judgment of the First Appellate Court and the same was disposed by Ext.P3 judgment setting aside Ext.P2 judgment of the First Appellate Court and restoring the Trial Court judgment. Ext.P3 judgment was challenged before the Hon'ble Supreme Court by filling Special Leave Petitions and as per Ext.P4 order, the Hon'ble Supreme Court condoned the delay, granted special leave and issued notice to the respondents.
4. Since there is no stay in the Special Leave Petitions the defendants 1, 3 to 9, 11 and 12 filed Ext.P5 Application (I.A No.17/2004) to appoint Advocate Commissioner, to convene General Body and to elect Executive Committee in compliance with Ext.P1 judgment. Some of the plaintiffs had earlier filed I.A.No.5/2023 for the very same relief on the basis of Ext.P2 judgment when there was no stay in the Regular Second Appeals.
5. This Court by Ext.P6 judgment directed the Trial Court to consider I.A.No. 5/2023 and I.A.No.17/2024 in accordance with law. The plaintiffs filed Ext.P7 Counter Statement in I.A No.17/2024. The Trial Court passed Ext.P8 order in IA No.17/2024 appointing Advocate Commissioner to do the necessary works as per Ext.P1 judgment. It is Ext.P8 Order which is impugned in this Original Petition.
6. This Court admitted the matter on 28/06/2024 and granted an interim order staying Ext.P8 order. The said interim order was extended from time to time.
7. The 2nd respondent filed I.A No.1/2024 to vacate the Interim Order passed in this Original Petition. The respondents 1 to 3, who are the petitioners in the Original Petition filed Counter Affidavit in I.A No.2/2024.
8. I heard the learned Senior Counsel for the petitioner Sri. P.B.Krishan instructed by Adv. Sri.Visakha Jain and learned counsel for the respondents 1 to 29 Sri.P.A.Harish.
9. The learned Senior Counsel for the petitioner submitted that since leave is granted by the Hon'ble Supreme Court as revealed from Ext.P4 order and the Civil Appeals are pending consideration before the Hon’ble Supreme Court, the Trial Court ought not to have appointed an Advocate Commissioner as per Ext.P8 order.
