Harnam Singh and Others vs Mangal Dass and Others

Virender Singh, Judge

The appellants herein are the defendants in the main suit pending before the learned 2nd District Judge, Jammu and is now posted for 24.2.2009

as stated by Mr. Johal. They claim themselves to be elected representatives/office bearers of the Jammu & Kashmir Sainik Cooperative House

Building Society. The respondents herein (plaintiffs in the main suit) filed a suit for declaration challenging certain decisions including issuance of

notice No.SCHBS/34 dated 26 August, 2008 adversely affecting the respondents/plaintiffs with an application for grant of temporary injunction.

The suit was presented as Civil Original representative suit. The learned 2nd Additional District Judge, Jammu vide order dated 01-11-2008 while

issuing notice to the appellants/ defendants temporarily restrained them from taking any decision in support of the notices, calling general body

meeting or taking any policy decision and going ahead with allotment of any shop or space or accommodation in the Central Shopping Complex

Sector G Sainik Colony, Jammu and allotment or any contract for construction in or upon same. The case was then listed for 17-11-2008.

Aggrieved of the same, the appellants/defendants have filed the instant appeal praying for setting aside the said order primarily on the ground that

as per section 70 of the Jammu & Kashmir Cooperative Societies Act, the disputes of the Society are required to be referred to Registrar for

decision and the civil Court has no jurisdiction to entertain any suit or proceedings in respect of such dispute.

On being pointed out to Mr. Johal, learned counsel for the appellants as to how this appeal is maintainable with regard to interim direction which

was subject to the objections from the other side, he submits that in case interlocutory application is not finally disposed of within thirty days and

the ex-parte temporary injunction is also not vacated, on expiry of thirty days, the ex-parte interim injunction order shall be deemed to be a final

order and shall be appealable under Order 43 of Code of Civil Procedure. In support of his contentions, he has relied upon a judgment of Hon'ble

Apex Court rendered in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, . However, Mr. Johal concedes that the appellants/defendants

had appeared before the Court concerned on 17-11-2008 the first date fixed after passing of the impugned order.

Mr. Johal submits that since section 70 of the Jammu & Kashmir Cooperative Societies Act, was attracted in this case, the

appellants/defendants on the first date of their appearance before the Court moved an application (annexure-'D') praying for dismissal of the suit

and referring the parties to arbitration. According to learned counsel the appellants had also prayed for any such relief in their favour which the

Court deemed fit in the present set of circumstances. According to Mr. Johal, there was no need of moving any formal application for vacation of

stay as it would have been against the provisions of section 8 of Arbitration & Conciliation Act, 1997. This is the reason that the appellants at the

very outset had moved the application (annexure-'D') u/s 8 of Arbitration & Conciliation Act, 1997. The learned counsel then submits that no

doubt, the objections to the said application have already been submitted by the plaintiffs/respondents, the issue has not been decided by the trial

Court till date.

Mr. Johal then submits that even otherwise, the plaintiffs/ respondents have filed an application for withdrawal of the suit on the ground that

during the pendency of the proceedings, with the intervention of the some respectable members of the society, an amicable settlement has been

arrived at to which appellants/defendants have also submitted their 'no objection' to the said withdrawal. Since the Court below has granted

permission to the respondents/plaintiffs to file the suit in representative capacity, the main suit cannot be dismissed as withdrawn without the leave

of the Court and in this regard a notice has to be sent to such persons who are interested in the suit. All this process has to take a considerable

period and, therefore, all these changed circumstances call for vacation of the stay order granted in favour of the plaintiffs/respondents.

Mr. Johal, however, submits that the Court concerned has taken necessary procedural steps with regard to the withdrawal of the suit.

In view of the aforementioned factual position, it would be most appropriate that without delving deep into the merits of the case at this stage,

the trial Court is directed to decide the application moved by the appellants/ defendants u/s 8 of the Arbitration & Conciliation Act, 1997 by 24-

02-2009 only, the date already fixed before it or within a week's time thereafter.

So far as the application for withdrawal of the main suit filed by the plaintiffs/respondents is concerned, the same shall also be expedited but

certainly in accordance with the provisions of Order XXIII, Rule 3-B of Code of Civil Procedure.

Resultantly, the main appeal (CIMA No.10/2009) and CMP (No.16/2009) stand disposed of.

Registrar Judicial of this Court is directed to convey the order to the Court concerned without any delay.