Andhra University v. P.V.N. Raju

1. These two Civil Miscellaneous Appeals are filed by the defendant. In the suits, against whom the subordinate Judge, Visakhapatnam, granted Interim injunctions restraining them from Implementing the proceedings of the meetings of the Senate and Academic Council of the Andhra University, held on the respective dates mentioned therein. It is convenient to dispose of both the Civil Miscellaneous Appeals by a common judgment. The material facts leading to these appeals may briefly be stated.

2. C.M.A No. 151 of 1973:— Under the directions of the Vice-Chancellor of the Andhra University, the Registrar issued notices to the members of the Senate on 23-11-1972 Intimating them that the Ordinary Meeting of the Senate would be held on 5-1-1973. The agenda-papers containing the items to be discussed at that meeting, to be held on 5-1-1973 were Issued by the Registrar to all the members of the Senate, on 15-12-72. On account of the disturbed conditions and the agitation that was going on at the relevant time, the Vice-Chancellor, In exercise of the power vested in him under Section 12(2)(a) of the Andhra University Act, postponed the meeting by his notice dated 23-12-1972. Fresh notices, thereafter, were issued by the Registrar, under the direction of the Vice-Chancellor on 15-6-1973. Intimating the members of the Senate that its Ordinary Meeting would be held on 7-7-1973 and, at that meeting, the items of Agenda previously sent, would be the items for discussion. Finally agenda-papers, which Included several new items, were issued to all the members of the Senate by the Registrar, on 2-7-1973. Items No. 3 in the Agenda, to be discussed at that meeting, was in regard to the election of five Members from the Senate to the Syndicate of the University. C.M.A No. 152 of 1973: Under the directions of the Vice-Chancellor, the Registrar of the Andhra University issued notices to the Members of the Academic Council on 27-11-1972 intimating them that the Ordinary meeting of the Academic Council would be held on 4-1-1973. Agenda-papers, containing the items to be discussed at that meeting, to be held on 4-1-1973 were issued by the Registrar to all the members of the Academic Council, on 14-12-1972. On account of the disturbed conditions and the agitation that was going on at the relevant time, the Vice-Chancellor in exercise of the power vested him u/s 12(2)(a) of the Andhra University Act, postponed the meeting by his notice dated 23-12-1972. Fresh notices, thereafter, were issued by the Registrar, under the direction of the Vice-Chancellor, on 15-6-1973, to all the members of the Academic Council. Intimating them that the Ordinary Meeting of the Academic Council would be held held on 6-7-1973. Final agenda-papers, which Included several new items, were issued to all the Members of the Academic Council by the Registrar, on 2-7-1973. Item No. 2 in the Agenda, to be discussed at that meeting, was in regard to the election of the three members from the Academic Council to the Syndicate of the University.

3. The Ordinary Meetings of the Senate and the Academic Council were held on the respective dates, for which notices were issued. Three members from the Academic Council and five members from the Senate were elected to the Syndicate.

4. Sri P.V.N Raju, one of the Senators, filed O.S No. 65 of 1973 against the Andhra University (defendant No. 1), the Vice Chancellor (Defendant No. 2), and the five members of the Senate elected to the Syndicate at the meeting of the Senate held on 7-7-1973, in the Court of the Subordinate judge, at Visakhapatnam, stating that the Vice-Chancellor had no power to adjourn a meeting and that, the meeting of the Senate held on 7-7-1973 was not in accordance with the Rules and Regulations and, therefore, the business transacted at that meeting, including the election of five members of the Senate to the Syndicate, are illegal and void. Sri P.V.N Raju, with these averments filed the above suit in the Court of the Subordinate judge, Visakhapatnam, praying for a permanent injunction restraining the defendants, the Andhra University and the Vice-Chancellor from implementing the resolutions passed at the meeting of the Senate held on 7-7-1973, and the elected-members from functioning as the Members of the Syndicate.

5. Sri N. Subba Reddy, Professor of Anthropology of the Andhra University, filed O.S No. 66/1973 in the Court of the Subordinate judge at Visakhapatnam stating that the Vice-Chancellor had no power to postpone a meeting which was once called. The meeting of the Academic Council held on 6-7-1973 was illegal and against the Rules and Regulations. The business transacted and the resolutions passed at that meeting including the election of three Members to the Syndicate, are illegal and void. With those averments, Sri N. Subba Reddy, filed the above suit for the grant of a permanent injunction restraining the Andhra University and its Vice-Chancellor from Implementing the resolutions passed at the meeting of Academic Council held on 6-7-1973, and also the three elected members from functioning as the Members of the Syndicate of the University.

6. In both the suits, the respective plaintiffs filed I.A Nos. 244/1973 and 246/1973 under Or. XXXIX, Rules 1 and 2 of the Code of Civil Procedure for the grant of interim injunctions, pending disposal of the suits. The learned Subordinate Judge, without either examining the averments made by the respective plaintiffs in their plaints, or coming to a conclusion that the balance of convenience was in their favour, and without assigning any reasons, granted ex-parte interim injunctions on 11-7-1973, and ordered notices to the respondents therein, for 11-9-1973. Aggrieved by those orders, granting ex-part interim orders of injunction, the Andhra University and the Vice-Chancellor have filed these appeals.

7. A preliminary objection was raised by the respondents advocate, Sri M.V Ramana Reddy, that the order passed by the Subordinate judge, Visakhapatnam, was only an interim order, and not a final one. It was open to the aggrieved party to appear before the lower court and show case why the orders issued by the Court should not be varied or cancelled. Instead of doing so, the appellants herein have chosen the remedy to file appeals in this Court. In law the appellants are not entitled to file appeals against such orders, and their only remedy was to move the Court below for either varying or cancelling its orders.

8. The learned Counsel, Sri S. Venkata Reddy, appearing for the appellants, on the other hand, submitted that the order passed by the Lower Court, whether ex-parte or after hearing the parties, is none the less, an order passed under Or. XXXIX, Rules 1 and 2 of the C.P.C and therefore, it was open to the aggrieved party either to file an application before the Court issuing the injunction for setting aside the injunction, or to file an appeal in the appellate Court. The appellants, who have got two remedies available to them, cannot be prevented from choosing to avail any one of those remedies. In support of this argument the learned Counsel relied upon the decisions in Ramulu v. Gangaram (1) A.I.R 1953 Hyderabad, 138. L.D Meston School Society…Defendant v. Kashi Nath Misra…Plaintiff . (2) AIR 1951 Allahabad 558; Devasahayam v. Arumukhan (3) AIR 1953, Travancore-Cochin, 240; Chaganlal v. Nivasadas (4) AIR 1963, Madhya Pradesh, 208; and Sarju Prasad Singh v. Ganga Prasad (5) A.I.R 1951 Calcutta, 446.

9. When in a suit if is proved by affidavit or otherwise, that any property in dispute, is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully, sold in execution, or the defendant threatens or intends to remove or dispose of such property with a view to defraud his creditors, the Court may order grant of a temporary injunction, under Or. XXXIX, rule (1) of the C.P.C

10. In a suit for restraining a defendant from committing a breach of contract, or other injury of any kind, the Court may grant a temporary injunction, restraining the defendant from doing so, under rule 2 of Or. XXXIX C.P.C

11. Under rule 3 of XXXIX, C.P.C, the Court, in all cases where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party.

12. Under Rule 4 of Or. XXXIX, C.P.C, any order of injunction may be discharged, or varied, or set aside by the Court on an application made thereto by the party dissatisfied with such order.

13. Under Rule 1 of Or. XLIII. clause (n) of the C.P.C an order under Rule 1, Rule 2, Rule 4, or Rule 10 of Or. XXXIX, C.P.C is appealable.

14. On a plain reading of the above provisions of Or. XXXIX and Or. XLIII of C.P.C it is evident, that a party aggrieved by a temporary injunction granted against him, can either file an appeal to the appellate Court, or move an application to the Court issuing the injunction for setting aside or varying the terms of the injunction. When once the law provides him with two remedies, it is open to the aggrieved party to choose any one of them, and if he chooses to file an appeal against the order of temporary injunction granted against him, it is the duty of the appellate Court to dispose of that appeal, and the Court cannot dismiss the appeal merely on the ground that the aggrieved party did not choose the alternative remedy available to him of filing an application to the Court issuing the injunction, for setting aside the in junction or for varying the terms thereof. The view that I have taken, finds support in all the decisions relied upon by the learned Counsel for the appellants, referred to above. Not a single authority has been cited before me by Sri M.V Ramana Reddy, the learned counsel for the respondents, which has held a contrary view.

15. In Chhaganlal v. Niwasdas (4) A.I.R 1963 Madhya Pradesh 208; a learned single Judge of the Madhya Pradesh High Court held that, where an order of temporary Injunction is issued ex-parte under Or. XXXIX Rule 3. C.P.C, without notice to the opposite party, that order is, none-the-less an order under Rule 1 or Rule 2 of Or. XXXIX, C.P.C, and would as such, be appealable under Or. XLIII, R. 1(r), C.P.C

16. The same view has been held by the Travancore-Cochin High Court in Devashayam v. Arumukan (3) A.I.R 1953. Travancore-Cochin, 240; by a Division Bench of the Allahabad High Court in L.D Meston School Society…Defendant v. Kashi Nath Misra…Plaintiff . (2) A.I.R 1951 Allahabad, 558; by the Hyderabad High Court in Ramulu v. Gangaram (1) AIR 1953, Hyderabad, ??? and by the Calcutta High Court in Sarju Prasad Singh v. Gangaprashad ??? Calcutta, 446.

17. Moreover, the University was within less than ??? Court of the Subordinate Judge. In such a case, it was highly ??? of the Subordinate judge to grant an interim injunction, writ ??? a notice to the University. No reasons were put forward by the respondents to show that, if a notice was issued, there would occur delay and the very purpose, for which the injunction was applied for, would be defeated. The learned Subordinate Judge was therefore, not justified in this case in granting an Ex Parte Interim injunction without first issuing a notice to the appellants. Even assuming for a moment that the learned Subordinate Judge was Justified in issuing an interim injunction without first issuing a notice, she should not have fixed the hearing after two months. After all, the University is a statutory body and is not a person in the sense that it would be causing any damage or destruction to the subject matter of the suit and would frustrate the very object of the grant of injunction. That ground itself is sufficient to vacate the order of grant of temporary injunction, and send back the matter for re-consideration. The preliminary objection is therefore, over-ruled. These appeals are maintainable.

18. It would not be proper to send back the matter to the trial Court for its reconsideration. I would myself like to deal with the merits, in order to find out whether the respondents herein have made out a Prima Facie case for the grant of a temporary injunction, and whether the balance of convenience is in their favour so as to restrain the appellants from implementing the resolutions passed at the meetings of the Senate and the Academic Council, referred to above.

19. The learned Counsel, Sri S. Venkata Reddy, appearing for the appellants, contended that the Vice-Chancellor had power to adjourn the meetings of the Senate and the Academic Council, under Section 12(2)(a) of the Andhra University Act. For the meetings called for the subsequent dates one of the items on the agenda, for discussion at the meetings of the Senate and the Academic Council, was election of five members from the Senate and of three members from the Academic Council, to the Syndicate. After adjourning the earlier meetings, fresh proclamations intimating the dates on which the elections were to be held were made and fresh nominations were called for. The respondents herein filed, their fresh nominations for the elections to be held on 7-7-1973 and 6-7-1973 from the members of the Senate and the Academic Council respectively and participated in the meetings held on those dates without raising any objection either in regard to the dates on which these notices were issued or in regard to the dates on which the Agenda-papers were issued, on the ground that no sufficient notice was given to them as prescribed by the Rules of the University, or that they had no sufficient time either to study these items in the agenda-papers, or suggest any amendment in respect of those items. The respondents herein contested the elections at the meetings held-on 7th and 6th of July 1973 of the Senate and the Academic Council, but were defeated. Having participated in those meetings and the deliberations in regard to the items on the Agenda without raising any objections, and having been defeated in those elections, it is not open to the respondents to rush to Court and drag the University into litigation, and seek to restrain the appellants from implementing the resolutions passed at those meetings. The respondent in C.M.A No. 152/1973 had also a motive to file the suit. The Department of which the respondent in C.M.A 152/1973 was the Head, was bifurcated and a new Department was created with a Reader under him being placed as the Head of the newly created Department. Aggrieved by that, Professor N. Subba Reddy, the respondent in C.M.A No. 152/1973, unsuccessfully filed suits, and a writ petition is now pending in this Court. Having been unsuccessful in his attempts to get the new Department and the appointment of a Reader under him as the Head of that new Department cancelled, the Professor, who is in the service of the University and who is expected to maintain strict discipline, and set up an example for the thousands of students of the University, rushed to the court for vindicating his alleged personal right, by seeking to restrain the University and the Vice-Chancellor from implementing the resolutions passed at those meetings. Having come to Court with unclean hands. Professor N. Subba Reddy, Respondent in C.M.A 152/73 is not entitled to the injunction claimed by him in the plaint. Neither have the respondents made out a prima facie case, nor is the balance of convenience in their favour, for the grant of a temporary injunction against the appellants.

20. The learned Counsel, Sri M.V Ramana Reddy, appearing for the respondents on the other hand submitted that Section 12(2)(a) of the Andhra University Act is not the Section under which the Vice-Chancellor could exercise his power to adjourn the meetings which were validly called for. Admittedly, there is no other Section in the Act, or the rule in the University Code under which the Vice-Chancellor could exercise the power and adjourn the meetings. It is only the Senate and the Academic Council after they meet, that could adjourn those meetings. The subsequent meetings were, therefore, meetings which were not convened in accordance with the rules and regulations of the University, and were unconstitutional. After the meetings of the Senate and the Academic Council were first called for by notices issued on 5-1-1973 and 4-1-1973 respectively, the Governor issued Ordinance No. 26, dated 30-12-1972, extending the terms of the members of the Syndicate upto 15-7-1973 and declaring that, any action or proceeding to fill in the vacancies, taken till then stood cancelled. The item relating to the elections in the Agenda-Papers issued on 15-12-1972 and 14-12-1972 for the meetings of the Senate and the Academic Council to be held on 5-1-1973 and 4-1-1973 respectively, stood cancelled in view of the Ordinance, By intimating the members that the agenda already issued for the meetings to be held on 5-1-1973 and 4-1-1973 of the Senate and the Academic Council would be the same for the subsequent meetings of those authorities to be held on 7-7-1973 and 6-7-1973, the members were made to understand that one of the items to be discussed at the meetings on 7-7-73 and 6-7-73, was the ejection of the members of the Senate and the Academic Council to the Syndicate. In fact, after the issue of the Governor's Ordinance, that item must be considered to have been deleted from the previous agenda and therefore, the item of election to the Syndicate could not be said to be one of the items to be discussed at the meetings of these authorities to be held on 7th July, 1973 and 6th July, 1973 respectively. The elections that were held on those dates were therefore, illegal and void. Since the meetings of the Senate and the Academic Council which were held on 7th July, 1973 and 6th July, 1973 respectively were unconstitutional and against the Rules and regulations of the University, the Proceedings, the resolutions passed and the business transacted at those meetings were all illegal and void. In support of these arguments, the learned Counsel for the respondents relied upon the decision of the Madras High Court in Veeriah Ambalam v. Karuppan (6) (1963) 11 M.L.J, 317. The illegal resolutions passed at those meetings cannot, therefore be implemented. For implementing those resolutions, the University has to spend a good deal of amount but of its funds and if such resolutions are held by the Court to be illegal and void, the entire expenditure that would be incurred in implementing those resolutions, would be a wasteful expenditure of the University and the loss that the University would thereby suffer, would be considered to be the loss suffered by the respondents. The respondents being members of the authorities of the University, it is their duty to protect the funds of the University from being expended in wasteful and illegal manner. They were, therefore, justified in filing the suits. Even if the members of the Senate and the Academic Council, elected to the Syndicate at those meetings do not attend and participate in the meetings of Syndicate, the meetings of the Syndicate could still go on, because no quorum has been fixed fertile meetings of the Syndicate, and no loss or injury would result to those elected members by not attending to the meetings of the Syndicate. Notwithstanding a temporary injunction restraining the appellants from implementing the resolutions passed by the Senate and the Academic Council at their meetings held on 7-7-1973 and 6-7-1973, the Vice-Chancellor could prepares temporary budget, and the persons in the service of the University could be paid their salaries, and the affairs of the University will not come to a stand still. The respondents have made out a strong prima facie case and the balance of convenience also is in their favour for justifying the grant of a temporary injunction.

21. I have carefully considered the above arguments. Before appreciating the contentions raised by the learned Counsel for the parties. It is necessary to know the relevant provisions of the Andhra University Act (hereinafter referred to as “the Act”) and the Rules in the University Code relating to the Senate and the Academic Council (hereinafter referred to as “the Rules”).

22. The Vice-Chancellor is one of the officers of the University: (Section 9 of the Act) The Senate, the Syndicate and the Academic Council are some of the Authorities of the University (Sec. 14 of the Act). The Vice-Chancellor is the Academic Head and the Principal Executive Officer of the University and empowered to exercise general control over all its affairs: (Section 12(1)(d) of the Act.) By virtue of his Office the Vice-Chancellor shall be a member and Chairman of the Syndicate and of the Academic Council and shall preside at the meetings of the Senate in the absence of the Chancellor or the Pro-Chancellor; (Section 12(1)(e) of the Act). It shall be the duty of the Vice-Chancellor to see that the provisions of the Act the statutes and Ordinances and Regulations are duly observed and he may exercise all powers necessary for that purpose; (Sec. 12(1)(h)

23. When, with regard to any matter in which any officer or authority may take any action, the Vice-Chancellor considers immediate action desirable, he may, subject to the general control of the Chancellor, take such action as may be necessary but shall, as soon as maybe, report the action taken to the Officer or the authority concerned (Section 12(2)(a) of the Act.)

24. If the action taken by the Vice-Chancellor under Section 12(2)(a) affects any person in the service of the University then such person can file an appeal to the Syndicate (Sec. 12(2)(b) of the Act).

25. There shall be at-least two Ordinary Meetings of the Senate in a year, and also a meeting on the requisition in writing signed by not less than 20 members of the Senate. 20 Members will be the quorum for such meetings. (Section 17 of the Act.)

26. Academic Council has the power to constitute such, Faculties as may be prescribed, to formulate, modify or revise schemes for the constitution or re-constitution of the departments of teaching, and to make recommendations to the Senate for the institution of the Professorship, Readerships. Lecturerships, and other teaching posts, and to the Syndicate in regard to the duties and the emolument's thereof; (Section 23(2)(b)(c) and (d) of the Act.)

27. If any question arises, whether a person has been duly elected, or is entitled to be a member of any authority of the University, the question shall be referred to the Chancellor, whose decision shall be final (Sec. 27 of the Act.)

28. No act or proceeding of any authority shall be deemed invalid by reason only of some defect in the constitution of the authority, or by reason of the existence of a vacancy or vacancies among its members, or the invalidity of the election of any of its members; (Section 29 of the Act).

29. Chapter VI of the University Code relates to the Senate. There shall be at least two ordinary meetings of the Senate in a year. The Senate may also meet at such other time as it or the Vice-Chancellor may, from time to time, determine. The dates for the meetings of the Senate shall be fixed by the Vice-Chancellor. (Rule 4)

30. The Registrar shall, under the directions of the Vice-Chancellor, give not less than six weeks notice of the date of the ordinary meetings; (Rule-5) and for an Extraordinary meeting, notice of not less than 15 days. (Rule-4-A).

31. Any member who wishes to move a resolution at an ordinary meeting shall forward a copy of such resolution to the Registrar, so as to reach him not less than 30 clear days before the date of the meeting (Rule-6).

32. Not less than 21 days before the date of an ordinary meeting and not less than 15 days before the date of special meeting, the Registrar shall issue agenda-papers specifying the place, day and the hour of the meeting, and the business to be brought before the meeting. But non-receipt of the agenda paper by any member shall not invalidate the proceedings of the meeting. It is also provided that the Syndicate or the Vice-Chancellor may bring any business, which in its or his opinion is urgent, before any ordinary meeting, or special meeting, with shorter notice, without placing the same in the agenda-paper (Rule-8).

33. Any member who wishes to move any amendment to a resolution on the agenda-paper of any ordinary or special meeting of the Senate, shall forward a copy of the same to the Registrar, so as to reach him not less than 10 clear days before the day of the meeting on which the resolution is to be moved (Rule-9). On receipt of such amendment, the Registrar shall prepare an amended agenda-paper, showing all the resolutions as in the original agenda-paper and all the amendments, and post a copy of it to each member of the Senate not less than five days before the day of the meeting (Rule-10).

34. The Chairman shall if so directed by the meeting on which a quorum is present, adjourn the meeting from time to time, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place. It is also provided that the Syndicate may bring in urgent business before an adjourned meeting with or without notice. When a meeting is adjourned for 15 days or more, not less than 10 days notice of the adjourned meeting and of the business to be transacted at it shall be given. (Rule-14).

35. Chapter VIII of the University Code relates to the Academic Council. There shall be two ordinary meetings of the Academic Council in a year. The dates of the meetings of the Academic Council shall be fixed by the Vice-Chancellor. The Registrar shall, under the directions of the Vice-Chancellor give not less than six weeks notice of an ordinary meeting; (Rule 4) Not less than 21 days before the date of every meeting, the Registrar shall issue to every member an agenda-paper specifying the day, place and the hour of the meeting, and the business to be brought before the meeting. Non-receipt of the agenda-paper by any member, shall not invalidate the proceedings of the meeting. It is also provided that the Vice-Chancellor may bring any business which in his opinion is urgent, before any meeting with shorter notice, or without placing the same on the agenda-paper. Provisions relating to the amendment of a resolution are the same as in the case of the Senate. 20 members of the Academic Council shall be the quorum for the meeting of the Academic Council (Rule-12). The procedure at the meetings of the Academic Council shall be regulated generally by the procedure laid down for the Senate, so far as they are applicable. (Rule-15).

36. It is in the light of these Sections of the Act and the Rules in the University Code that the questions arising in these appeals have to be decided.

37. Before judging the correctness or otherwise, and the soundness, of the contentions raised by the learned Counsel appearing for the parties it may also be necessary to know the law on the subject.

38. Before deciding the question as to whether an interim injunction should issue or not the Court has to be satisfied on the following two points viz., (i) As the Plaintiff by the interim injunction undoubtedly seeks to interfere with the right of the opponent before the plaintiff's right is finally established, the injunction is not granted as a matter of course and it is necessary for the plaintiff to make out a strong prima facie case in support of the right that he asserts and (ii) the plaintiff should next make out that the Court's interference is necessary to protect him from an injury or mischief which is imminent and it is, at the same time, irreparable. He should make out that the injury is so serious, irreparable and imminent that an immediate order of the Court is necessary even before his rights are established at the trial.

39. Inseparably connected with the second point is the burden which lies on the plaintiff to make out that the comparative mischief or inconvenience which would ensue from withholding the injunction, would be far greater from what would ensue from the injunction being granted. It is also an important consideration that, in considering whether an interim injunction should be granted or not, the Court must have due regard to the conduct and dealings of the parties before the application is made to the Court by the Plaintiff to preserve and protect his rights, since the jurisdiction to interfere, being purely equitable, is governed by the equitable principles. (Vide 21 Halsbury's Laws of England, Paragraphs 766 and 767).

40. In considering the question whether the above two points have been made out or not, for granting a temporary injunction, the Court, at the interlocutory stage should not embark upon a detailed investigation on the relative merits of the contentions of the parties, and it is enough if the party raises questions of a substantial character, calling for decisions after an examination of the facts and the law, arising in the case. The court can consider the nature and the merits of the rival contentions at the interlocutory stage only as bearing upon the limited question as to whether or not the plaintiff has made out a strong prima facie case.

41. The Court should avoid expressing any opinion on the merits which would partake the character of a decision of the main issues in the case.

42. On the question of the balance of convenience and the threatened mischief or injury, irreparable or otherwise, regard must be had to the nature of the suit and the particular right asserted, like suits against the Government, University or a public-body, as distinguished from litigation between private individuals. In the case of a public-body like a University the Court will not ordinarily, interfere with its management at the instance of one of the members of the University. However, there are well recognized exceptions to this rule, and they are (i) where the impugned act is clearly ultra vires of the University (ii) the act complained of constitutes fraud, or (iii) the impugned action is clearly illegal. A breach of any rule made by the University would not give rise to a cause of action for any member to rush to Court. It must be a case of manifest illegality, or where the act of ommission or commission is something which goes to the root of the matter. All the members would be bound by the decision taken by the general-body, though there may be some violation of some rules, provided.

43. In S. Krishnaswamy v. S.I Film Chamber (10) AIR 1969 Madras 42 Ramamurthi, J. held that:—

“………It is established law that if a party who has acquiesced in the election to which he objects or he is raising an objection which might have been put forward against himself on a previous election or in the same election in which he participated the Court in the exercise of its discretion will refuse to award him any relief” (even an interim injunction)………”

44. In Narayandas v. Sarasvati Bai (11) AIR 1968, Bombay, 280 a Division Bench of the Bombay High Court, has observed that:—

“………The duty of being careful even in the case of ex-parte applications cannot but be emphasised. It is the duty of the Judge to be careful in the exercise of this power and must by careful questioning of the applicant ascertain whether a real case exists for the grant of the same. He must be satisfied that the law permits it and the emergency demands it. It should not be granted lightly or in advisedly. Even if granted, the absent party ought to be sufficiently protected………”

45. It was further held in the above case, that:—

“……Order 39, Rules 1 and 2 provide for temporary injunctions. Rule 2 requires that some injury must be threatend injury must be a legal injury and not any fancied injury. In all cases, where injury is alleged, the Court is put on an enquiry as to what are the contents of the rights claimed by the plaintiffs. Assuming that some such right is shown, the second element to be considered is whether irreparable injury or reconvenience may result to the plaintiffs if the same is refused………”

46. In Rameshwar Das v. Yakin-Ud-Din (12) AIR ??? 633 a single Judge of the Lahore High Court on the following ??? …Plaintiff and the defendant were rival candidates at a Municipal ??? in which the defendant was declared successful. Three months after the result of the election had been published in the Government Gazette, the plaintiff approached the Court and brought a suit for declaration that ??? on was void and that the defendant was consequently, not ??? it commission, or on the Municipal Committee. He also made an ??? for the grant of a temporary injunction that the defendant be ??? from attending the meetings of the Municipal Committee and from exercising the powers of a Municipal Commissioner pending ??? on of the suit……” held that:—

“……the plaintiff's sustaining respect ??? by ??? continuing to act as Municipal Commissioner ??? determination of the suit was a mere ??? that there was no substance in the application made by the plaintiff for the issue of a temporary injunction and that, he was obviously prompted by a desire to cause injury to the defendant. The Courts should before disturbing any man's legal rights or stripping him of any rights with which the law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final issues of the suit…….”

47. In Jagannath v. Sukhdeo (13) AIR 1967 Bombay 317 a Division Bench of the Bombay High Court held that, for the grant of an injunction legal injury of some kind is a necessary condition. For the legal injury, the applicant must prove that he had a legal right and there was its breach. Injunction to restrain elected candidates from taking seats and from voting at Panchayat meetings, cannot be granted.

48. In Shamsuddin Ahmed v. Charu Chandra Biswas (14) AIR 1934 Calcutta, 621 in a suit filed by the plaintiffs for a declaration that they were the only elected members and that, the defendant was not the member, and applying for an interim injunction restraining the defendant from attending the meeting Roy, J. of the Calcutta High Court, held that “the likelihood of injury and inconvenience was much greater if the defendants were not allowed to function as members and chat injunction should not be granted in such a case……”

49. In re. Oxted Motor Company Limited (15) (1921) 3 King's Bench Division, P. 32 is was held that:

“……It was competent for the shareholders of the company acting together to waive the formalities required by Section 69 of the Companies's (consolidation) Act, 1908 as to notice of intention to propose a resolution as an extraordinary resolution and that, as all the share-holders of the Company had met and passed the resolution to wind up the Company, the resolution was valid as an extraordinary resolution within Section 182 and that it was not open to a creditor to impeach its validity …”

50. In Dr. G. Marula Siddiah v. Dr. T.G Siddapparadhya (16) (1971) II, S.C Weekly Reporter, 118, the Supreme Court, in the last paragraph of its judgment, observed thus:

“……Before parting with this case, we cannot but express our disapproval in nothing that the canker of litigiousness had spread even to a sphere of life where discipline should check ambition concerning personal preferment. A teacher is justified in taking legal action when he feels that a stigma or punishment is undeserved, but he is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment, when he finds a co-worker raised to a position which he himself aspired after……”

51. In Balabh Das v. Mohd. Istaq. (17) AIR 1933 Lahore, 282, Bhide J. observed that:

“……A drastic injunction without issuing notice cannot be granted unless there is any risk of irreparable injury or grave inconvenience”.

52. The University, I am told, is at a distance of less than a mite from the seat of the Court. The University is not a private individual who does certain acts for his own individual benefits. The University is a public-body, the decisions of which effect several thousands of students and others, in its service. It is ordinarily, expected of a person, who is in the service of the University, to observe strict discipline and to project a figure of astrict disciplinarian, so that thousands of students of the University might follow his example. A Professor in the service of the University, instead of maintaining strict discipline and setting up an example to others, has himself drawn the University into Court and made it spend a huge amount as expenses in the litigation. The conduct exhibited in this case by Mr. N. Subbareddy respondent in C.M.A No. 152/1973 who is a Professor, in the service of the University and who had already been unsuccessful in his earlier suits filed against the University, is said in the least, undesirable.

53. Both the respondents herein attended the meetings of the Senate and the Academic Council held in the month of July 1973 and participated in the deliberations, without either objecting to the alleged illegalities or the irregularities. If any, in the matter of convening those meetings. Not only they participated in those meetings, but they also filed fresh nominations and contested the elections, but were defeated. The question whether a person has been duly elected or not to any of the authorities in the University is required to be preferred to the Chancellor of the University, under Section 27 of the Act for his decision, and his decision shall be final. If the respondents herein were of the view that the candidates who have been elected as the Syndicate from the Senate and the Academic Council, at the relevant meetings, were elected either illegally or improperly they could have referred the question of their election to the Chancellor. They did not do so. It is now a well settled principle of law that, when defeated candidates in an election, come to the court and seek to restrain the successful candidates from functioning as such, and taking part in the proceedings of an authority to which they were elected injunction should not be granted. (See Rameshwar Das v. Yakin-Ud-Din (12) AIR 1924, Lahore, 633; Shamsuddin Ahmed v. Churu Chandra Biswas (14) AIR 1934 Calcutta 621 and Jagannath v. Sukhdeo (13) AIR 1967, Bombay, 317.

54. Moreover, in order to restrain the appellants by an injunction of the Court, the respondents should establish some injury which has been caused to them. What is the injury that has been caused to the respondents in this case? No stigma is attached to Professor N. Subbareddy (respondent in C.M.A 152/73) by the appointment of a Reader working in his department as the Head of the newly created Department. Professor N. Subbareddy is already the Head of the Department. Nor has Professor N. Subbareddy aspired for any higher post to which a Reader under him has been appointed. Therefore, no injury has resulted to him by reason of his Junior being appointed as the Head of the Department, which was newly created. I am really unable to visualize what injury will result to the respondents if the University implements the resolutions passed at the meetings of the Senate and the Academic Council, held in July 1973. The respondents cannot complain of any particular right which they possessed and which has been infringed or violated by the appellants. Therefore, the injury that is complained of, namely, that it is their duty to prevent the University from involving itself in wasteful expenditure, is more imaginary than real. It is very difficult to accept the contention of the learned Counsel, Sri M.V Ramana Reddy, appearing for the respondents, that if injunction is refused his clients would suffer injury. There is no injury much less irreparable.

55. The respondents have actually participated in the meetings of the Senate and the Academic Council held in the month of July 1973, without raising any objection that they were not given sufficient notice by the Registrar, or that the agenda-papers were not served on them in time so that they could send any amendments to these items, or that they had no sufficient time to study the points involved in those items, so that they could effectively put forward their views in regard to those matters. The sending of resolutions to the Registrar, for being raised at the meetings, is something which is required to be done prior to the issue of preliminary Agenda. The question of proposing any amendment to the item in the Agenda, which are to be discussed at the meeting, is something subsequent to the preliminary agenda and before sending the final Agenda. Inspite of the fact that the Agenda papers were sent in these cases, as early as on 15-12-1972 and 14-12-1972 respectively, the respondents herein did not take any steps to send their resolutions, if any, to the Registrar to be raised at the meetings, nor did they move any amendments to the items contained in the agenda-papers which were already received by them. Even non-receipt of agenda-papers by a member will not invalidate the proceedings of a meeting. It is always open to the Vice-Chancellor to bring any urgent business at the meetings, even without having them Included in the agenda-papers already issued, or with a shorter notice than required. Having attended and participated in those meetings without a protest or raising any objection and also, after filing their fresh nominations, contested the elections, it was submitted that the respondents must be deemed to have acquiesced in the proceedings by their conduct. It is always open for the members to waive certain irregularities in the common interests of the authorities.

56. Out of the total strength of the Senate of 122 members, 101 members attended the meeting of the Senate held on 7-7-1973. Similarly, out of a total number of 213 members of the Academic Council. 180 members attended the meeting of the Academic Council held on 6-7-1973 and, it is not the case of the respondents, that either they or any of those members who were actually present at, and participated in those meetings, had raised any kind of objection, either in regard to the insufficiency of the time given by the notices convening the meetings, or that the agenda-papers were served with such short notice that they could not raise any amendments, etc. to those items in the Agenda, it was, therefore, submitted that they should be considered to have waived the irregularities, if any, in the matter of convening the meetings and the business transacted at these meetings.

57. It was the duty of the Subordinate Judge to be careful even in ex-parte applications for the grant of temporary injunctions. Even in such applications, the learned Subordinate Judge should have taken due care to find out the real facts and the injury that will result to the petitioners (plaintiffs) if temporary in junctions were not granted to them, as prayed for, and also to find out whether the plaintiffs, in those cases, had made out prima facie strong cases warranting the issue of such a drastic injunction against the University. It is regrettable to find that, in these cases, the learned Subordinate judge granted temporary injunction as a matter of course, without applying her mind to the facts of the case; that is to say, whether such facts warranted the issue of a temporary injunction, or whether the balance of convenience was in favour of the plaintiffs to restrain the defendants from implementing their resolutions. No such thing appears to have been done in this case.

58. When the University was within less than a mile from the seat of the Court, it was the duty of the Court to have issued notices to the University before granting temporary injunction against the University. After-all, the University is a public-body and not a private individual. It cannot be said that any property was in imminent danger of being wasted. Instead of issuing notice to the University before the grant of temporary injunction, the Subordinate Judge, without even applying her mind to the facts of the case, immediately granted temporary injunctions for the mere asking of it by the respondents, and fixed the date of hearing in the case, thereafter, after two months, and then issued notices to the University and the Vice-Chancellor, etc. Undoubtedly, it is the Vice-Chancellor that fixes the dates of ordinary meetings of either the Senate or the Academic Council. When once a valid meeting of the Senate or the Academic Council has been convened for any particular date, and the members of the Senate or the Academic Council have actually met on that day, it is not open to Vice-Chancellor to adjourn that meeting unless he receives a direction from the members who are present, or the majority of the members, and when the quorum is there. But, even before the meetings are actually convened for the dates, of which notices have been issued to the members, it is the submission of the learned Counsel for the appellants, that it is always open to the Vice-Chancellor to cancel those meetings and give some other dates for the meetings, because it is within the exclusive jurisdiction of the Vice-Chancellor to fix the dates of the ordinary meetings of the Senate and of the Academic Council. This power, according to the appellants's Counsel, is provided in Section 12(2)(a) of the Act. However, the learned Counsel for the respondents. Sri M.V Ramana Reddy, stated that the action under Section 12(2)(a) of the Act could be taken by the Vice-Chancellor only in regard to the services, and not in regard to adjournments of the meetings validly convened. That question is, however, a highly debatable question, and I should not embark on investigation upon it in the present proceedings and give a final opinion as to whether the Vice-Chancellor had power to adjourn a meeting. The postponement of a meeting is one thing, and adjournment of a meeting is another. A meeting cannot be adjourned if there was, in fact, no meeting. I cannot, at this interlocutory stage, hold that the argument advanced by the learned Counsel, Sri S. Venkata Reddy appearing for the appellants, is absolutely devoid of force, or that the contention raised by the learned Counsel, Sri M.V Ramana Reddy for the respondents, is clear beyond doubt. A further investigation may be necessary to examine this contention, in view of the documents and oral evidence that may be led in this case. I would only consider these matters from the point of view of the fact, whether the respondents herein had made out a strong prima facie case for getting the relief of interim injunction. In view of what has been stated above, and the highly controversial points arising in the suits, and consequently in these appeals, I would not like to give my final opinion on the contentions raised by the learned Counsel for the parties. Suffice to say that the respondents have not made out a strong prima-facie case that they are entitled to the interim injunction, as prayed for.

59. In regard to the balance of convenience also, I find little force in the arguments of the learned Counsel for the respondents. If the Injunction is refused, it cannot be said that the respondents herein would suffer more inconvenience and injury than the appellants. On the other hand, if injunction is granted, it will, certainly cause more inconvenience and injury to the University. After-all, the University is a public body, and its decisions may beneficially effect thousands of students and several persons in its service. Such a public body should not be restrained by a temporary injunction, unless the respondents in these appeals clearly establish their right to the reliefs, claimed by them in the suits. In the result, I hold that neither the respondents have made out a strong prima facie case against the appellants for the grant of a temporary injunction, nor is the balance of convenience in favour of the Respondents. The Subordinate Judge was not, therefore, justified in granting the temporary injunctions as prayed for by the respondents. The orders of the Court below are vacated. In the result, the appeals are allowed with costs.