With the passage of time, the reliefs sought by the plaintiff will become infructuous if the litigation concerns a matter that has already taken place: Madras High Court
A litigation which concerns a matter that had taken place in the past cannot be allowed since there would be no effective progress and the suit would just remain pending in the court of law. Since such a suit would serve no purpose, it will become infructuous. This was decreed by The Hon’ble Mr. Justice C.V. Karthikeyan in THE MUDALIAR EDUCATIONAL TRUST Vs. N. M. Sundarar [C.R.P. (PD) No. 3551 of 2019].  The brief facts of the case are, a suit was filed against the first defendant and the district collector of Erode in a nature of declaration that the elections conducted for the general council and executive committee were invalid and for a permanent injunction restraining the third and sixth defendants from functioning as office bearers and for a mandatory injunction to appoint an Advocate Commissioner to conduct the election for the first defendant Trust. The suit remained idle without any effective progress. The first defendant filed an Interlocutory application to dismiss the suit as infructuous since the election in question had run its course and 2 subsequent fresh elections were conducted and steps to conduct fresh elections in 2021 have also been taken up by the defendant. It was also observed that, the said set of office bearers had also been recognized by the District Registrar, who had taken their names on record and they had also taken charge of their respective posts. Contending this, a counter had been filed on behalf of the plaintiff wherein he mentioned that the cause of action is still alive and is not wiped away merely because of the passage of time. On 03.09.2019, an order was passed dismissing the applications by the learned judge. The plaintiff claimed that the elections of the year 2015 constituted irregularities since the second defendant ignored the legal notice issued by the plaintiff and proceeded with the elections and declared the elected body as unopposed. The learned counsel also mentioned that such irregularities cannot be ignored merely on the basis of passage of time and declaration must still be awarded. However, this was disputed by the learned counsel for the revision petitioner wherein he relied on AIR 2002 SC 1649 [ J.M.Biswas Vs. N.K.Bhattacharjee and others] where the Hon’ble Supreme Court held that, “Further, successive elections have been held to elect office bearers and the office bearers so elected have been recognized by the management. In the circumstances, continuing this litigation will be like flogging the dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interest of the Union. Accepting the contentions raised on behalf of respondent No. 1 that the successive elections held in the meantime were invalid because he was not permitted to participate in it and to quash all such elections and direct holding of fresh elections under the supervision of the Court, will be contrary to democratic functioning of the employees Union. Furthermore, Courts in the present situation of exploding dockets can ill afford to stand time in such an exercise”
1IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 21.06.2021 PRONOUNCED ON: 01.07.2021CORAM:THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYANC.R.P.No. 35519AndC.M.P.No. 232919THE MUDALIAR EDUCATIONAL TRUSTRepresented by its Secretary K.K.BalusamyHaving registered office at:No.1 South Hanumandarayan Kovil Street... Petitioner 1st Defendant Petitioner Vs N.M.Sundarar... Respondent Plaintiff RespondentPRAYER: Civil Revision Petition filed under Article 227 of the Constitutionof India against the fair and decreetal order passed by the I AdditionalDistrict Munsif Court at Erode dated 03.09.2019 in I.A.No. 8318 inO.S.No. 2015. For Petitioner :Mr. P.Valliappan 2For Respondent:Mr. V.S. KesavanORDERThe first defendant in O.S.No. 2015 pending on the file of the IAdditional District Munsif Court Erode is the revision petitioner herein.The revision petitioner had filed I.A.No. 8318 in the said suit.Simultaneously the sixth defendant in the suit had also filed I.A.No. 832 of2018. Both the Interlocutory Applications were dismissed by order dated03.09.2019. Questioning that order the first defendant petitioner in I.A.No.8318 has filed the present revision petition. The sixthdefendant petitioner in I.A.No. 8318 according to the learnedcounsels had not questioned the said order. 2.The suit in O.S.No. 2015 had been filed against the firstdefendant a registered trust under the Societies Registration Act and othermembers of the first defendant and also against the District Collector ofErode and the District Registrar of Erode seeking a Judgment and Decree inthe nature of a declaration that the elections to the General Council and theExecutive Committee for the first defendant held on 21.02.2015 and on01.03.2015 and conducted by the second defendant based on notifications 3dated 11.02.2015 were invalid and against the bylaws of the first defendantand to declare the elections for the Executive Committee and office bearersalso as invalid and for a permanent injunction restraining the third and sixthdefendants from functioning as office bearers of the first defendant and alsofor an injunction against the eighth defendant from taking on file the list ofelected body of the first defendant and for a mandatory injunction to appointan Advocate Commissioner to conduct the election for the first defendantTrust and for such further reliefs as may be granted by the Court.3.The suit had been meandering around without any effectiveprogress. A written statement had been filed by the first defendant andsubsequently an additional written statement had also been filed. These hadbeen filed in the year 2015 itself. 4.Thereafter the first defendant filed I.A.No. 8318 todismiss the suit as infructuous. It is seen that subsequent to the institution ofthe suit and pending the suit the term of the office bearers whose electionhave been questioned in the suit had run its course and in the year 2018 fresh elections had also been held. That election has not been challenged or 4questioned by the plaintiff. Further the term of the office bearers elected inthe year 2018 had also been completed in the year 2021 and steps to conductfresh elections have also been undertaken by the first defendant. 5.In the affidavit filed in support of I.A.No. 8318 it hadbeen stated that the tenure of the members who have been elected for theperiod 2015 2018 was for three years and had expired in the year 2018 andsubsequently in the year 2018 further elections had been held for officebearers to function from 2018 to 2021. It had also been stated that the saidset of office bearers had also been recognised by the District Registrar whohad taken their names on record and they had also taken charge of theirrespective posts. It had therefore been stated that the suit had becomeinfructuous and no effective Judgement can be passed with respect to thereliefs sought in the suit.6.A counter had been filed on behalf of the plaintiff wherein thecontention that the suit had become infructuous was disputed. It had beenclaimed that the cause of action still survive and is not wiped away merelybecause elections had been conducted for the subsequent period. It had been 5stated that even on an earlier occasion when a suit was filed challenging theelections conducted in the year 2000 it was disposed of only in the year2009 and first appeal was disposed of in the year 2013 and the second appealwas disposed of in the year 2014 and the election conduced in the year 2000was held invalid. It had therefore been stated that the application should bedismissed and the plaintiff should be permitted to proceed further with thesuit. 7.As stated another defendant namely the sixth defendant hadalso filed a similar application in I.A.No. 8318. A common order hadbeen passed in both the applications on 03.09.2019 dismissing both theapplications. The learned Judge while examining the issues in theapplications had stated that the suit had been filed questioning the electionsfor the reason that the members who were inducted after a particular periodhad no right to vote. It was stated that the actual issue was whether the listof voters prepared by the second defendant was correct or not. Referencewas also made to the Second Appeal which flowed out of the earlier suitfiled in the year 2000 and the order passed by this Court holding that theelection of the year 2000 were invalid. It was therefore held that the 6application should be dismissed.8.Heard Mr.P.Valliappan learned counsel for the petitioner andMr.V.S.Kesavan learned counsel for the first respondent plaintiff.9.The facts had been stated above. 10.The first respondent as plaintiff had instituted O.S.No. 200 of2015 which is now pending on the file of I Additional District Munsif Court Erode. He claimed to be a permanent member of the General Council of thefirst defendant trust namely Mudaliar Educational Trust and further claimedthat the said Trust runs several educational institutions at Erode and has itsown bylaws rules and regulations. 11.It is a Trust registered under the Societies Registration Act 1975. In the suit it had been claimed that the elections conducted in theyear 2015 for the General Council and Executive Committee should be setaside and fresh election should be conducted by appointment of an Advocate 7Commissioner. It had been further contended that the second defendant hadbeen appointed to conduct the election. A report was given to the secondrespondent to decide the list of voters. He also had the power to decide thelist of eligible voters. It was however contended that the second defendantignored the directions given in an earlier suit. He also ignored the legalnotice issued by the plaintiff. Thereafter he had issued the electionnotification and then the plaintiff filed O.S.No. 915 before theDistrict Munsif Court at Erode seeking a declaration that the electionnotification was invalid. The second defendant had however declared theelected body of the General Council Members as unopposed and thereafterhad issued a paper publication advancing the elections for selecting theExecutive Committee members and had actually conducted the said election.It had been stated by the plaintiff that all these constituted irregularities andtherefore the election of the year 2015 should be set aside.12.Mr. V.S. Kesavan learned counsel for the respondent claimedthat merely because there has been passage of time the alleged irregularitiescannot be swept under the carpet. A declaration would still lie whether theoffice bearers who functioned between the years 2015 2018 had been 8properly elected or not. In this connection learned counsel drew inspirationfrom an order of this Court in a Second Appeal where a learned Single Judgeof this Court in S.A.No. 2613 Mudaliar Educational Trust represented by its Secretary Vs. C.K.Ramanathanand 30 others byJudgment dated 11.07.2014 had directed an Advocate Commissioner to holdelections in accordance with law. The said Second Appeal arose fromO.S.No. 4804 originally filed as O.S.No. 7600 challengingthe elections conducted on 25.04.2000. It had therefore been contended byMr.V.S.Kesavan learned counsel for the first respondent that the suit inO.S.No. 2015 should be permitted to proceed and that the reliefssought therein cannot be held to have become infructuous.13.This contention is very seriously disputed by Mr.P.Valliappan learned counsel for the revision petitioner. The learned counsel afterpointing out the facts relied on AIR 2002 SC 1649Alipore South Calcutta. That suit was filed by the plaintiff whowas the first respondent before the Hon ble Supreme Court seeking adeclaration that he was a duly appointed office bearer of the Union andrestraining the defendants from interfering with his functioning as GeneralSecretary. He filed an application seeking interim injunction. The TrialCourt rejected the prayer for temporary injunction. The First AppellateCourt however allowed the appeal by the plaintiff. That order waschallenged by the defendant before the High Curt. The High Court dismissedthe revision petition the defendant then filed an appeal before the Hon bleSupreme Court. It was submitted that in the meanwhile three elections hadbeen held and different sets of office bearers excluding the plaintiff firstrespondent have been elected. They have also been recognised by themanagement of the South Eastern Railway. It was contended that in thesecircumstances the order of interim injunction should be vacated.14.On the other hand it had been contended on behalf of the firstrespondent plaintiff that the elections are invalid as they were not held inaccordance with the rules of the Union. The Hon ble Supreme Court held asfollows: 10“10. .... Further successive electionshave been held to elect office bearers and theoffice bearers so elected have beenrecognized by the management. In thecircumstances continuing this litigation willbe like flogging the dead horse. Suchlitigation irrespective of the result willneither benefit the parties in the litigation norwill serve the interest of the Union. Acceptingthe contentions raised on behalf ofrespondent No. 1 that the successive electionsheld in the meantime were invalid because hewas not permitted to participate in it and toquash all such elections and direct holding offresh elections under the supervision of theCourt will be contrary to democraticfunctioning of the employees Union.Furthermore Courts in the present situationof exploding dockets can ill afford to standtime in such an exercise.”15.Mr.P.Valliappan learned counsel also referred to AIR 2004 SC2093wherein the Hon ble Supreme Court while considering subsequentevents had observed as follows: “25.Thus it is clear that by the subsequentevent if the original proceeding has becomeinfructuous ex debito justitiae it will be the duty ofthe court to take such action as is necessary in theinterest of justice which includes disposing ofinfructuous litigation. For the said purpose it will beopen to the parties concerned to make an applicationunder Section 151 of CPC to bring to the notice ofthe court the facts and circumstances which havemade the pending litigation infructuous. Of course when such an application is made the court willenquire into the alleged facts and circumstances tofind out whether the pending litigation has in factbecome infructuous or not. ”16.In the present case I hold that pursuing with the suit in O.S.No.2015 would serve no purpose. With the passage of time the reliefssought by the plaintiff have become infructuous. The blame for the samecannot be laid on the first defendant revision petitioner. They had filed the 12written statement in the year 2015 itself. Subsequently elections have beenheld in the year 2018. The plaintiff had not thought it fit to question thesame. He should have asserted his rights at every point of time. 17.Keeping the suit on file would only ensure that without anyeffective progress the suit will be just pending in the Court of law. At somepoint the respondent plaintiff should realise that subsequent events haveover ridden his grievances and it is only in the interest of all parties that theyare taken note of and a litigation which would not result in any effectivedecree being passed is put to an end.18.The allegations of the petitioner with respect to the voter list orwith respect to the conducting of the elections could have been raised beforethe District Registrar but it is seen that the District Registrar had acceptedand recognised the list of office bearers who were declared elected. He alsorecognised the list of office bearers who have been elected in the year 2018.I hold that keeping the suit on file and re examining the issues would onlybe as the Hon ble Supreme Court put it “flogging a dead horse”. The resultof the litigation will benefit none of the parties to the suit. Therefore I 13would interfere with the order passed in I.A.No. 8318 and put an endto the tortorous suit which is now pending namely O.S.No. 2015before the I Additional District Munsif Court Erode. The suit is accordinglydirected to be struck off the records and dismissed as infructuous.19.The contention that the sixth defendant had not filed anyrevision petition cannot be pressed to the disadvantage of the revisionpetitioner herein who as first defendant had thought it fit to agitate theorder dated 03.09.2019 in I.A.No. 8318 before this Court 20.This Civil Revision Petition is allowed. No order as to costs.Consequently connected Miscellaneous Petition is closed.01.07.2021vsg Index: Yes NoInternet: Yes No.Speaking Non speakingC.V.KARTHIKEYAN J. 14vsg Pre Delivery Order made in C.R.P.No. 35519AndC.M.P.No. 23291901.07.2021 