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TMI Blog1971 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ting was presided over by opponent No. 2. Opponent No. 1 was present in the meeting in person as well as by proxy for three other shareholders. There were two others, D. A. Bhalerao and D. R. Palsodkar, who were not shareholders but were present as proxies. In the said meeting applicant No. 2 was declared elected as the director of the company. The opponent No. 1's grievance is that applicant No. 2 was elected illegally. He, therefore, filed a suit on February 5, 1970, seeking a declaration that the resolutions adopted at the said meeting as well as the election were in contravention of the rules and regulations and were therefore null and void. Opponent No. 1 also prayed for an injunction and, therefore, filed an application under Order 39, Civil Procedure Code, against the applicants and opponent No. 2 restraining them from giving any effect to the resolutions passed in the meeting on January 24, 1970, and for further restraining the applicant No. 2 to act as a duly elected director of the company and for participating in the meetings of the board of directors. This application was opposed by the applicants on the ground that there was no allegation that any irreparable injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the injury must be a legal injury and not any fancied injury. The court in an application under this order has to enquire as to what are the contents of the rights claimed by the plaintiff. The court has not only to find the contents of the rights claimed by the plaintiff but also has to consider whether irreparable injury or inconvenience would result to the plaintiff if the same is refused. But the learned advocate for the applicants contends here that it is not always necessary to look into both these elements. According to him in a case such as the one with which we are concerned, viz., regarding an election to a post, temporary injunction should not be granted even if a legal injury was caused unless and until the election was set aside. For this purpose, he relies on a case of this court in Jagannath Pundlik v. Sukhdeo Onkar [1967] Mah. LJ 126. A Division Bench of this court was hearing a writ petition against an order in an election petition challenging the validity of the election of successful candidates to a village panchayat. It does not appear to me that this court laid down any ratio in this case that, even if an injury is caused, temporary injunction cannot be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Patna case ( supra ) also observes as follows: "Whether an order of injunction should or should not be issued will depend on the facts of the case, and the court must also consider the question of irreparable or serious injury and balance of convenience." The learned assistant judge against whose order the present application is filed relied on Abdul Gafur v. Mustakim Ali AIR 1970 Assam 96. The plaintiff there had filed a suit for declaration that the election of the defendant as chairman of the society was void and illegal and that the defendant was not entitled to hold the office as the chairman of the said society and an interim injunction restraining the defendant from taking over charge and functioning as chairman was granted by the trial court. The defendant challenged the injunction order, inter alia, on the ground that the suit itself was barred by section 79(2) of the Assam Co-operative Societies Act. It was held there that as the plaintiff had challenged the very constitution of the managing committee which elected the defendant as the chairman, the plaintiff had a prima facie case to go to trial. Under section 79(2) of the above-said Co-operative Societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to stand as a director. Then there is a publication in the newspapers regarding his candidature. The shareholders are to be present by proxies, by depositing the proxies according to law. There can be a demand for poll under section 179 of the Companies Act before or on the declaration of the result of the voting of any resolution and the chairman has to accept such demand. The proxies also can demand a poll. The minutes show that the chairman ruled out the demand for poll because, according to him, the proxy represented by a person who was not a member could not demand a poll. Then in the matter of election of a director it was said by the chairman that a proxy who is not a shareholder cannot second the proposal of Dixit, opponent No. 1. This is also prima facie not correct. But when one Mr. Deo, who was a shareholder, stood up and seconded the proposal, the chairman said that it was not then open for anybody to propose, second or support any proposal. It is in these circumstances that the chairman declared that there was only one candidate, Dr. B. V. Deshmukh, and declared him to be elected as a director of the company. The plaintiff, opponent No. 1, therefore, is aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annual general meeting. What is the balance of convenience? There are five directors of the company. Two directors form a quorum. Prima facie , applicant No. 2 appears to have got himself elected against the legal rules and statutory provisions. If, therefore, an injunction is granted, the business of the company cannot be stopped; it can be carried on without the newly elected director. On the other hand, if the applicant No. 2 is allowed to remain as director there is likelihood of his inflicting legal injuries not only to the plaintiff-opponent No. 1 but also to the interests of the company. In that way, he would be acting against or detrimental to the interests of the shareholders. Moreover, prima facie , an illegality was committed; such illegality should not be allowed to continue. It appears to me, therefore, that the order passed by the learned assistant judge is quite legal and proper. Moreover, this is a civil revision application under section 115 of the Civil Procedure Code. The revisional jurisdiction has its own limits. If the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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