The Country Club v. Dilip Tuli & ORS
$~A-50 *
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 14/2017 THE COUNTRY CLUB ..... Petitioner Through Mr.Anoop Bagai, Sr.Adv. with Mr.Ankit Jain, Adv.
versus DILIP TULI & ORS ..... Respondent Through Mr.Rakesh Kumar, Mr.Chetan Dutt and Mr.Lakhan Singh,Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
O R D E R
% 04.01.2017 1.
By the present petition filed under Article 227 of the Constitution of India the petitioner seeks to impugn the order dated 26.12.2016 by which an appeal filed by the respondents impugning the order of the trial court dated 22.12.2016 was allowed and injunction order was passed against the petitioner.
2.
The petitioner is a Society registered under the provisions of the Society Registration Act, 1860 and is running a club in Sainik Farm area. A complaint was received by the petitioner from one of its members making allegations about misconduct against respondents No. 1 and 2 on 9.10.2016. On the basis of the complaint the petitioner issued a show cause notice on 10.10.2016. Further proceedings were done. On 12.12.2016 the respondents were informed that they have been found guilty of misconduct for indulgence in indecent behaviour with ladies etc and that they have been suspended from using the facilities of the Club w.e.f. 15.12.2016 till
15.3.2017. The respondents thereafter filed the present suit challenging the said order of the petitioner.
3.
The trial court in a detailed order noted that there have been complaints against one of the respondents on earlier occasions where he was suspended and debarred, the basis on which suspension has been made are serious allegations and cannot be ignored and that a person who seeks equity must do equity. Accordingly, the trial court held that the respondents have failed to establish a prima facie case and in peculiar circumstances no injunction order can be passed against the petitioner and the application was dismissed.
4.
The respondents have filed the present appeal. In the appeal the appellate court seems to have concluded that the injunction application is pending for consideration on 20.1.2017 that on account of heavy burden of work the trial court could not hear the matter, it observed that by declining an injunction one-third of the period for which the respondents have been debarred from using the petitioner club facilities would be completed and hence an ex parte injunction order was passed in favour of the respondents restraining the petitioner from prohibiting the respondents from using the facilities of the petitioner club in terms of the letter dated 12.12.2016. The matter was remanded back to the trial court stating that an endeavour will be made to dispose of the application within four weeks from the date of hearing.
5.
A perusal of the order of the trial court would show that the application for injunction has been disposed of. This conclusion follows as at two places it is noted that the application stands dismissed, application stands disposed of. However, at the bottom of the order when summons for
settlement of issues have been directed it has been stated that notice of the application under Order 39 Rule 1 and 2 CPC be also issued. The tenor of the order, however, shows that this observation appears to be inadvertent typographical error.
6.
Be that as it may, the appellate court has in the present case without going into the parameters for grant of an injunction, namely, existence of a prima facie case, balance of convenience, and irreparable loss and injury, merely on the ground that adjournment by the civil judge to 20.1.2017 would mean that one-third of the suspension period would get completed, has granted an ex parte injunction order without issuing notice to the petitioners.
7.
Reference may be had to a judgment of the Supreme Court in Kishorsinh Ratansinh Jadeja vs. Maruti Corporation and Others, (2009) 11 SCC 229 where it was held as follows :- "36. It is well established, that while passing an interim order of injunction under Order 39 Rules 1 and 2 CPC, the court is required to consider three basic principles, namely, (i) prima facie case;
(ii) balance of convenience and inconvenience; and (iii) Irreparable loss and injury."
8.
The order suffers from material irregularity and is accordingly quashed.
9.
Parties to appear before the appellate court on 10.1.2017. Appellate court may deal with the appeal filed by the respondents uninfluenced by any observations made by this court, as per law.
10.
Copy of the paperbook before the appellate court be supplied to the petitioner today itself. Petitioner to file reply.
11.
Petition stands disposed of. All pending applications if any also stand disposed of.
JAYANT NATH, J JANUARY 04, 2017 n