Dmk flag case order stay grated and made obsolute read full order –Madras High Court K. Anbazhagan vs M. Kannappan And 10 Ors. on 26 April, 1994 Equivalent citations: 1997 (2) CTC 47 Author: Govardhan Bench: Govardhan ORDER Govardhan, J. 1. The applicant/plaintiff in his affidavit contends briefly as follows:-The applicant has filed the suit against the defendants for permanent injunction in his capacity as the General Secretary of Dravida Munnetra Kazhagam, herein after called the DMK party,

ORDER Govardhan, J.

1. The applicant/plaintiff in his affidavit contends briefly as follows:-The applicant has filed the suit against the defendants for permanent injunction in his capacity as the General Secretary of Dravida Munnetra Kazhagam, herein after called the DMK party, which is a political party recognised by the Election Commission of Inida. The applicant is the General Secretary of the party having been elected continuously for the fourth time, since 1977. He was elected by its present General Council, which is the 9th General Council, at its first meeting after the party elections, as per Rule 18(3) of the Rules and Regulations governing the party. The members of the General Council are elected as per Rule 18(2) of the party Constitution. The 9th General Council at its first meeting on 2.6.1992 elected Thiru M. Karuhanidhi, as President, the applicant as the General Secretary and Mr. S.J. Sadiq Basha as the Treasurer. The General Council of the DMK party had elected Thiru. M. Karunanidhi, as the President of the party for the 6th consecutive time from 1969 and he was elected as the Chief Minister of Tamil Nadu by the legislators after the demise of the party leader Dr. Arignar Anna. The aplicant had joined the party as a founder member along with Dr. Arignar Anna and he had also served as a cabinet Minister from the year 1971 in the DMK Government in the State of Tamil Nadu. The applicant became the Treasurer and thereafter elected unanimously as the General Secretary for four times from the Year 1977. As per Rule 20(1) of the DMK party Constitution, all the administrative responsibilities will be attended and managed by the applicant as the General Secretary. As per Rule 20(7) of the Party Constitution, the General Secretary is responsible for conducting litigation on behalf of the party in legal issues that may arise relating to the properties belonging to the party. The DMK party under the Presidentship of Thiru. M. Karunanidhi, has been registered Under Section 29A of the Representation of the People Act. The majority of the General Council Members and party cadres support the President and the General secretary of the party and the party under the Presidentship of Thiru. M. Karunanidhi, is continued to be recognised by the Election Commission of Inida as the DMK party.

2. On 2nd October, 1993, the Chief Secretary of the Government of Tamil Nadu has sent a communication to Thiru. M. Karunanidhi, stating that the Government was informed by a Central Government Intelligence agency that it had unearthed a plan to assassinate the DMK President by the LTTE, to promote the interest of the Rajyasabha M.P. Thiru V. Gopalaswamy, in the DMK party. The letter has requested the President to convey his consent for providing him adequate security. Thiru M. Karunanidhi was advised by the senior leaders of the party, including the applicant and other well wishers to accept the security protection to be provided by the State Government as a measure of precaution. The defendants and other disgruntled persons in the DMK party took this opportunity to criticise the DMK party high command by saying that Thiru V. Gopalaswamy was falsely accused of his involvement in the conspiracy to assassinate the DMK President. They attempted to confuse the members of the party by suggesting that the high command was unreasonably accusing one of its members of a plot to kill its President. Thiru M. Karunanidhi and the applicant made it clear that no member of the DMK party was either directly or indirectly accused of a plot to kill the Party President and invited the respondents to discuss with them in person and to clear the doubts if any. Inspite of it, the respondents continued to address public meetings and issue press statements accusing the party high command of fabricating the report of the Central Government Intelligence Agency and conspiring to involve Thiru V.Gopalaswamy in a plot to kill Thiru M. Karunanidhi. The above act of indiscipline by the fourth respondent brought a slur on the dignity of the party and thereby attracted disciplinary action as per the DMK party Constitution. An emergency meeting of all the 30 District Secretaries of the DMK party was called by the applicant at Madras to discuss about the act of indiscipline by the fourth respondent and all of them attended the meeting on 5.10.1993. 22 District Secretaries requested the party high command to take immediate disciplinary action against the fourth respondent as per Rule 36 of the Party Constitution. Yet no hasty action was taken against the fourth respondent in the interest of the party. As the fourth respondent was further violating the discipline of the DMK party, a show cause notice was issued to him on 1.11.1993 as per Rule 36(7) of the constitution of DMK party. The fourth respondent did not offer any acceptable explanation to the contraventions stated in the show cause notice. He further indulged in the activities of violating party discipline and confusing the party workers. Therefore, the applicant, as the General Secretary of the DMK party expelled Thiru V. Gopalaswamy from the DMK party on 11.11.1993, exercising his powers as per Rule 36(3) and (14). The other respondents and some other members of the party who have associated themselves with Thiru V. Gopalaswamy, subsequent to his expulsion from the party were also subjected to disciplinary actions for their contravention of the party discipline despite the warnings. The respondents and other expelled members continued to organise public meetings in the name of DMK party and used DMK party’s name and flag without any authority or permission, in order to defeat the party and to ruin its image in the minds of the party sympathisers and general public. The expulsion of the respondent and their supporters was approved by the Central Executive Committee of the DMK party in its meeting held on 25.11.1993, at Salem, in which 138 out of 178 members attended and six others sent their letters praying the General secretary to condone their absence and expressing their support for the decision taken by the majority of the members of the meeting. All those who attended the meeting approved the disciplinary actions taken against the respondents and expressed their whole hearted support to the leadership of the DMK party under the Presidentship of Thiru. M. Karunanidhi. The Rules and Regulations of the Constitution of the party as recognised by the Election Commission of India Under Section 29A of the Representations of the People Act have been previously accepted by the respondents and they were aware that the Rules and Regulations of the party are binding on them, since they were members of the DMK party prior to expulsion. Therefore, they are not entitled to challenge the action taken against them. The party’s flag with its colour design and theme are the exclusive properties belonging to the applicant’s party as per the Rules and Regulations. The respondents are not entitled to make any claim over the exclusive properties of the DMK party or use or utilise or cause to utilise and propagate the same. Even if the respondents make a tall claim that they are the real DMK with their supporters and others they are yet to be recognised by the Election Commission under Representation of the People Act, 1951. Before getting such an approval or recognition they are not entitled to use the name of the plaintiff’s party nor its colour and design of the flag for any purpose. If they are allowed to use it, it will cause confusion among party followers and cadres, but also on the name of the DMK party and the administration and enjoyment of its functionary properties. The respondents are therefore bound to be restrained by means of a perpetual injunction from using the name of the DMK party and its flag in their meetings, processions or in any other places.

3. The respondents and their supporters call themselves as DMK party men and continued to use the flag of the party in all their public meetings. The black and red colour party flag is the DMK’s party flag as per the Rule 4 of the Constitution of the Party. The Rules and Regulations of the party was submitted to the Election Commission for the party’s registration and recognition as a political party. The black and red colours are used as borders in the dhothies, sarees and other dress materials worn by the members of the DMK party and in phamplets and banners also it is being used in party functions. The DMK party members and their supporters and voters identify the party men by the black and red colour flags used by them since 1949. No person, who is not a member of the party has any right to use the DMK party flag bearing black and red colour. The respondents know very well that the members of the DMK party his supporters in the general public will not accept them as politicians and support their political activities if they use any other flag or party name. Therefore, they try to pose themselves as persons belonging to DMK party and thus they want to muster support for themselves for their political activities. If the respondents are allowed to continue to use the name of the DMK party and its flag, it will cause irreparable damage to the DMK party. The members of the DMK party, is sympathisers and general public will be deceived to believe the defendants are also members of the DMK party.

4. As the General Secretary of the DMK party, the applicant made an announcement on 20.12.1993 summoning the General Council of the DMK party for a meeting to be held on 29.12.1993 at Thanjavur. The announcement was made as per Rule 33(1) of the Constitution of the DMK party, giving the mandatory advance notice of seven days. Shocked by this announcement, the respondents hurriedly made an announcement on 24.12.1993 that the General Council Meeting of the DMK party is to be held by them at Trichy. There was no formal invitation sent to the members of the General Council; but only an announcement was made in the newspapers. Stipulated seven days time as per Rule 33(1) was not given for convening the General Council Meeting. The meeting at Trichy was not convened by the General Secretary as per Rule 18(5) of the DMK party and it was not presided over by the President of the DMK party as per Rule 20(4). The minimum required quorum of 1/3 was not present at the meeting. The list of names of General Council members, who attended the meeting was not published and was not made known to the public. The fourth respondent Thiru V. Gopalaswamy was chosen as the General Secretary of the DMK party and the second respondent Thiru L.Ganesan, as the Chairman and the first respondent as the Treasurer, the third, ninth respondents and another as the Deputy General Secretaries and the other persons, who were expelled from the DMK party as office bearers without even cancelling the disciplinary actions already taken against them. The defendants are stated to have passed a resolution removing Thiru M. Karunanidhi, the applicant and Thiru S.J. Sadiq Basha, from the post of the President, General Secretary and Treasurer respectively of the DMK party. Some of the Rules of the DMK party were also said to have been amended in that meeting. DMK flags were used and the meeting was claimed to be a DMK party meeting. In the General Council Meeting of the DMK party held on 29.12.1993 at Thanjavur, the meeting was presided over by Thiru M. Karunanidhi and 908 members of the General Council attended it. Out of them 758 were members directly elected and 150 were ex- officio members in view of their nominations to the post as per Rule 17(3) of the Constitution of the Party. 10 members have sent telegrams and letters expressing their inability to attend the meeting and agreeing to abide by the majority decisions of the Council. All those who have attended the meeting unanimously voiced their support to the leadership of the DMK party under its President Thiru M.Karunanidhi, and the applicant as the General Secretary. The meeting has also approved the disciplinary action taken by the applicant against the respondents and others. It had passed a resolution condemning the respondents and other expelled persons from using the DMK party flag and party name provided by the Constitution of the party. The right to use the name of the DMK party flag is the absolute right provided by the DMK party Constitution to its members. The respondents have no right to interfere with the above right of the plaintiffs by using the DMK party name and the flag in any manner. The damage and injury that will be caused to the applicant will be irreparable and irretrievable if the respondents are allowed to use the name of the DMK party and the flag any further. No damage or injury will be caused to the respondents if the injunction is granted restraining them from using the party’s name and flag. By elections to the Assembly Constituencies of Mylapore and Perundurai are likely to be held in the month of May and the notification is likely to be issued shortly. If the respondents are allowed to use the DMK party flag and name the electorate will be deceived and mis-lead and the applicant will be put to irreparable loss, hardship and injury. The balance of convenience is in favour of granting injunction restraining the respondents and their men from using the name of DMK party and also from using DMK party flag bearing black and red colour. Hence the application.

5. The fourth respondent filed a counter contending briefly as follows:-The suit is not competent and the applicant has not made out a prima facie case. The plaintiff has instituted the suit with ulterior motives to prevent the defendants from having the rally at Madras on 16.4.1994. The fourth respondent had entered a caveat in this Court through his counsel Mr. G. Devadoss, against the plaintiff, Thiru M. Karunanidhi and Thiru. Durai Murugan. The caveat presented on 3.1.1994, namely Caveat No. 29 of 1994, expired on 3.4.1994. The plaintiff has filed the suit on 7.4.1994 without informing the counsel of the fourth respondent. The fourth respondent was a very active member of the DMK party even from his college days and he was also the Joint Secretary of the Students’ Wing of the Organisation. Having regard to the services of the fourth respondent, as a Member of the Parliament for three times, the rank and file of the party could easily recognise him as one who could lead the party successfully for the benefit of the State. It is the genesis of the present dispute. Persons, who were heading the party became jealous of the affection and goodwill, the party cadres in the rank and file showed to the fourth respondent. Since they could not succeed in their attempts to eclipse the rise of the fourth respondent in the party ranks, an attempt to expel him from the party was made. Yet they could not succeed. The party workers and other persons, who have been heading the party in the District and Union levels, wanted to convene the General Council of the DMK party to decide, who is and who are and who will be the persons in the DMK party. Therefore Thiru. L. Ganesan, first defendant, issued notice on 17.12.1993 to all the members of the General Council for the meeting to be held at Trichy on 26.12.1993. The purpose of the meeting has been mentioned in the notice. The strength of the General Council was 825 as per the Constitution of the party and 447 members had attended the meeting at Trichy. A number of resolutions were passed in the General Council meeting unanimously. One resolution empowers the Council to pass resolutions regarding the policy, Rules and Regulations of the party under Rule 37(1) of the Constitution of the party. Another resolution relate to the autocratic decisions taken by the party President Thiru M. Karunanidhi and its General Secretary Thiru K. Anbalagan. Another resolution relate to the relief of the President Thiru M. Karunanidhi, the General Secretary Thiru K. Anbalagan, from their respective posts. There was another resolution relating to the election to the organisation. Thiru L. Ganesan, Thiru V. Gopalaswamy and Thiru M. Kannappan, were elected respectively as the Chairman, General Secretary and Treasurer of the party. Thiru Pon Muthuramalingam, Thiru Gingi N. Ramachandran and Kavingnar Thiru Kudiyarasu, were elected as the Deputy General Secretaries. Wide publicity has been given by the press regarding this meeting of the General Council. The party symbol, the party flag were all used in this General Council Meeting. On 27.12.1993 a public meeting was held at Erode and it was also published in the papers. Series of meetings of the DMK party were held in various places in every nook and corner of Tamil Nadu. The plaintiff did not send any notice to the fourth defendant objecting the same. On 30.12.1993, the fourth respondent had sent a communication to the Secretary, Election Commission of India and the Election Commission in its turn had sent the communication of the fourth respondent to the plaintiff. On 5.2.1994 the plaintiff has sent his objections to the Election Commission. The Election Commission requested the fourth respondent to make comments on the objections. On 17.3.1994 the fourth respondent has written to the Commission stating is objections. It is the Election Commission to decide the question as to who is the President in the DMK party. The plaintiff cannot approach the Civil Court for this purpose. The flag black and red and the symbol ‘rising Sun’ is the flag and symbol of DMK party of the fourth respondent. The plaintiff cannot claim any right in them. Plaintiff has no civil right. The majority of the members of the General Council have decided that the flag belongs to DMK party of the fourth respondent. The plaintiff cannot claim the use of the same. It is not open to the plaintiff to seek the relief of injunction. The relief cannot be prayed for by the plaintiff in this suit. The suit is not all competent in law and the plaintiff is not entitled to the interim injunction.

6. The plaintiff is guilty of suppressioveri and suggesstio falsi. The plaintiff has suppressed the orders passed by the District Munsif’s Courts at Karur and Coimbatore, wherein, the learned District Munsifs have granted interim injunction in favour of the supporters of the fourth respondent, who are also office bearers. The applicant cannot claim to be the General Secretary of the fourth respondent party on and after 26.12.1993. The suit is therefore liable to be dismissed on that score alone. The plaintiff has absolutely no locus standi to use the name DMK. On 26.12.1993 the General Council Meeting held at Trichy, was convened by this respondent and the same has been published in all the news papers in Tamil Nadu and the people are aware of the same. The respondents have held series of meetings throughout the length and breadth of Tamil Nadu daily and the news papers published about the meetings and the plaintiff did not think it fit to take any action against the defendants. The respondents have called for enrolling members from 14.1.1994. On 16.2.1994, the respondents announced that they are going to have a rally at madras on 16.4.1994. Elaborate arrangements have been made and the response from all the people to assemble at Madras on 15.4.1994 and 16.4.1994 from all over Tamil Nadu and other States is very much. The suit has been filed on 7.4.1994 with ulterior motives. Having failed to carry any message to the people and having been rooted at the polls during 1991, the plaintiff is trying to achieve some thing by approaching this Court for the relief of injunction. The plaintiff and his group cannot prevent the enthusiasm and the urge in the people to join the fourth respondent in the struggle for establishing a welfare State for the people and by the people. The respondents have been using the symbol and flags of their party without any challenge from any quarters from 26.12.1993. The plaintiff therefore cannot prevent the respondents from holding the rally on 16.4.1994. It will create great confusion and the respondent will not be able to hold the rally in the manner and the way in which they planned if they are not able to use the symbol and the flag of the party. The motive of the plaintiff in approaching this Court is sinister. The allegation that the plaintiff is the General Secretary of the DMK is false. The allegation of the applicant with regard to the DMK party election of office bearers in the 9th General Council Meeting, the passing of amendments to the Constitution of the party on 29.12.1993 at Thanjavur are all false. There was no General Council Meeting of the DMK party of Thiru M. Karunanidhi on 29.12.1993. The allegation that the DMK party under the leadership of Thiru M.Karunanidhi as President, the plaintiff as the General Secretary and Thiru Sadiq Basha as the Treasurer and having its head office at Anna Arivalayam, Anna Salai, Madras continues to be the recognised party by the Election Commission of India, is not correct. Neither Thiru M. Karunanidhi, nor the plaintiff has any right to speak about the DMK party of the fourth respondent. The plaintiff has made an attempt to twist the facts and has referred to the communication dated 2.10.1993 from the Chief Secretary to the Government of Tamil Nadu. It is not stated by the plaintiff under what circumstances the communication came to be issued by the Chief Secretary and who was responsible for that. The allegation is defamatory and the plaintiff is attempting to project his own case against the fourth respondent. The claim that 22 District Secretaries, out of 30, requested the General Secretary to take disciplinary proceedings against the fourth respondent for issuing a press statement is not correct. There was no necessity for any disciplinary proceedings against the fourth respondent. The plaintiff cannot expell the fourth respondent from his party. The General Council in its meeting held on 26.12.1993 had relieved Thiru M. Karunanidhi and the plaintiff from the office of the President and the General Secretary of the DMK party respectively. Therefore, there can be no expulsion from the DMK party so far as the fourth respondent and other defendants are concerned. The respondents are using their party symbol and they are trying to resuscitate the image of the party damaged by the plaintiff and his group. The respondents are the real DMK party. When the respondents are the DMK party and the wrong done to their party men were undone by the General Council held on 26.12.1993, the plaintiff cannot speak about the expulsion and meeting of the Central Executive Committee. The allegation that those who attended the Central Executive Committee approved the disciplinary action against the respondents and expressed their whole hearted support to the leadership under Thiru M. Karunanidhi and the plaintiff is not correct. The allegation that even if they make a tall claim that they are the real DMK with their supporters and others, they are yet to be recognised by the Election Commission and before getting such an approval, they are not entitled to use the name of the DMK party nor its colour and design of the flag has been made only for the purpose of this case and cannot advance the case of the plaintiff. The allegation that the respondents are yet to be recognised by the Election Commission is not correct. It is not for the plaintiff, who is an alien to the DMK to talk about any confusion. The plaintiff and his group are apparently envious at the enormous and over- whelming support to the fourth respondent party from the people and that is why they have come to this Court. The allegations about late Thiru M.G.R. about the use of the flag and late Thiru E.V.K. Sampath about the use of the flag are not relevant to the point at issue. The situation now is different. The plaintiff and his people were sent out of the DMK and the respondents continue in the DMK as decided by the DMK General Council meeting on 26.12.1993. The allegation that the respondents are trying to create confusion is only a figment of the plaintiff’s imagination. There is no scope for confusion among the DMK parties and its sympathisers. The people of Tamil Nadu cannot be confused. No person competent to issue any notice for convening the General Council Meeting had issued the notice for the meeting dated 29.12.1993. A meeting of a few individuals assuming that there was a meeting, would not make it a meeting of the General Council. A claim of a General Council meeting dated 29.12.1993 is put forth to nullify the effect of the General Council meeting on 26.12.1993. No explanation is forth coming from the plaintiff as to why no exception was taken to the General Council Meeting held on 26.12.1993 till 7.4.1994. This suit is conceived by the plaintiff and his group just for the purpose of preventing the respondents from holding the rally on 16.4.1994. The figures given by the plaintiff about the attendance of the General Council Meeting are not correct. The right to use the name, the flag bearing black and red colour is the absolute right of the DMK party of the fourth respondent. The plaintiff cannot interdict them using the symbol and flag. The allegation that the damage and injury that will be caused to the plaintiff will be irreparable if the defendants are allowed to use the name of the DMK party and the flag is not correct. The balance of convenience is in favour of the defendants and the respondents will be put to irreparable and irretrievable loss. The plaintiff and his group has to acquiesce in what the respondents have been doing since 26.12.1993 about the use of the flag and the symbol because the respondents are the real DMK party. The allegations made with regard to the by-elections to be held at Mylapore and Perundurai, will show that the plaintiff is trying to prevent the real DMK party from using the symbol and name in the ensuing by-election. The balance of convenience is not in favour of the plaintiff. The documents filed by the plaintiff do not support the case of the plaintiff. The allegation that no damage will be caused to the respondents if an injunction is granted restraining them from using the DMK party name and flag, is a mischievous one. There is no injunction against the respondents from using the flag with black and red colour and the symbol namely, ‘rising Sun’ in the propaganda of the respondents. Thiru Arcot Veeraswami of the plaintiff group, had announced in Murasoli, Tamil Daily, dated 9.4.1994 and 10.4.1994 as if the order of injunction in restraining the respondents from using the flag with black and red colour in their propaganda and instigated their party men to prevent the use of their colour by DMK party men, who is enthusiastic in the success of the rally to be held on 16.4.1994. For the sole purpose of giving trouble to the rally, the injunction order is sought for and the same is utilised in a wrong way to achieve the illegal object of the plaintiff and his group. By the conduct of this nature, the plaintiff and his group are disentitled to continue the injunction order in their favour. The purpose of filing this suit is to cause this disturbance to the DMK party rally on 16.4.1994. The plaintiff has not approached the Court with clean hands. The interim injunction is preventing the respondents from using their own party name, flag and symbol. Therefore, it is necessary that the application for injuction is dismissed.

7. The fourth respondent has also prayed for suspension of the order of injunction on the same averments in the affidavit and it is treated as a separate application in Application No. 2376 of 1994. Application No. 2375 of 1994 is an application filed by the fourth respondent in O.A.No. 342 of 1994 on the some averments in the affidavit filed by him in the counter in O.A.No. 342 of 1994 and the same is taken as an application filed by the fourth respondent to vacate the order of injunction in Original Application No. 342 of 1994.

8. The first respondent in his Counter contends briefly as follows:-Without submitting to the jurisdiction of this Court, the first respondent is filing this counter. The dispute being between the members of political party essentially belongs to indoor management of political matters and therefore there is no proprietory interest which can be claimed by the plaintiff over the name of the political party and a such the Civil Court has no jurisdiction in dispute of this nature. The Election Commissioner alone is empowered to decide the dispute among the recognised political parties by virtue of Section 29(A) of the Representation of People Act. The fourth respondent had duly informed the Election Commission about the changes effected in the DMK party at the General Council Meeting held on 26.12.1993. The Election Commission directed the fourth respondent as well as the plaintiff to file their respective documents to decide the dispute as to who is the real DMK party. The Election Commission is seized of the matter. The grant of injunction will stultify the proceedings before the Election Commission. The present suit is barred by Section 9 of Civil Procedure Code. The relief prayed for is such that if granted, it cannot be enforced. The vague expression in the injunction prayer “supporters, sympathisers and members” has been purposely inserted. The respondents are the real DMK party. The party does not belong to the plaintiff. The Court therefore will not grant injunction which cannot be enforced. The registration Under Section 29(A) of the Representation of the People Act, has no consequences on the name, the flag and properties of any political party. It will not have any impact on the mark and other visible insignia of political party. The members of a political party can be quoted to an Association of individuals, who have formed themselves into a society and the suit is therefore not maintainable. The first respondent and others have filed the suit in O.S.No. 2311 of 1993 on the file of the District Munsif’s Court, Coimbatore, against the plaintiff and 14 others and have obtained interim injunction restraining the plaintiff in this suit from in any way interfering with the functioning of the first respondent and other plaintiffs in the said suit as Office bearers of Coimbatore District DMK party. The injunction is in force. The plaintiff has suppressed this material fact. The plaintiff is guilty of misleading the statement in relation to the material particulars of the status of the first respondent in the party and therefore disentitled to continue the interim order any more.

9. Mr. M. Karunanidhi, wanted to groom his son Thiru M.K.Stalin as his successor in the DMK party and the fourth respondent was the stumbling block to his claim. Therefore Thiru M.Karunanidhi with the aid of the plaintiff humiliated and insulted Thiru V. Gopalaswamy on many occasions and has hatched a conspiracy along with his son and nephew linking Thiru V. Gopalaswamy with L.T.T.E. In pursuance of a most confidential letter from the Government of Tamil Nadu, dated 2.10.1993 Thiru M. Karunanidhi convened a Press Conference and distributed the xerox copies of the said letter without waiting for the rival of the plaintiff in this suit and made a statement that L.T.T.E. is contemplating to eliminate him for the promotion of the interest of Thiru V. Gopalaswamy. It has poomeranged on Thiru M. Karunanidhi, since the cadre had clearly seen the plot and stood strongly with Thiru V. Gopalaswamy. The rank and file of the DMK who are the back bones of party felt terribly shaken over the accusation made against Thiru V. Gopalaswamy and expressed their solidarity and support to Thiru V. Gopalaswamy. Three strong supporters of the DMK party committed self immolation in protest against the stand taken by the plaintiff and his group. The first respondent demanded the plaintiff to convene a General Council Meeting pointing out the extra-ordinary situation that has arisen in the party. The plaintiff refused to convene the meeting. Therefore the General Council members of the party met at Trichy on 26.12.1993 and resolved to relieve the plaintiff from the office of the General Secretary and elected Thiru V. Gopalaswamy as the General Secretary. Unable to tolerate the overwhelming support extended to the leadership of Thiru V. Gopalaswamy, the plaintiff has filed the present suit with ulterior motive. The respondents have been functioning as a DMK party with new Head Office at Karpagam Avenue, Madras, from the first week of January, 1994. They have announced about the holding of a rally on 16.4.1994 at Madras and call for a procession was given as early as 16.2.1994. The party cadre organised themselves to go over Madras from 15.4.1994 so as to participate in the rally. It will not be proper to restrain the respondents from using the flag and name of the party in the interest of democracy and justice. Therefore, the injunction granted may be vacated and the suit has to be dismissed as not maintainable.

10. The counter filed by the first respondent is treated as the application to vacate the interim injunction and it is Application No. 2373 of 1994. On the second prayer in the counter to dismiss the suit, the affidavit of the first respondent has been taken on file as the affidavit in Application No. 2373 of 1994 to dismiss the suit as not maintainable.

11. The second defendant filed a common counter as follows:- The suit as framed is not maintainable. The plaintiff is not entitled to file the suit in terms of Rule 20(7) of the Party Constitution as he has no authority to file the suit as the General Secretary of DMK. The suit ought to have been filed by the plaintiff’s faction or by one or more such members by obtaining prior permission under Order 1 Rule 8 of Civil Procedure Code. DMK is an unregistered Association of individuals for the purpose of Civil Suit and the suit as framed is not maintainable under Order 1 Rule 8 of Civil Procedure Code. The affidavit filed in support of the application of the plaintiff does not disclose the elements or the ingredients necessary to invoke and apply the provisions of Section 38 of the Specific Relief Act. On that ground also the suit is not maintainable. The plaintiff is no more the General Secretary of the DMK as claimed by him. In and by the resolution passed in the General Council meeting convened at Trichy on 28.11.1993, the plaintiff along with his former President Thiru M. Karunanidhi and other office bearers were expelled from the party after observing all the formalities in accordance with the procedure under the DMK party Constitution. The Election Commission has been duly informed about the election of new office bearers and the changes by Thiru V. Gopalaswamy the fourth defendant, in the suit, by his letter dated 30.12.1993. The DMK is a political party registered Under Section A href=”javascript:fnOpenGlobalPopUp(‘/ba/disp.asp’,’56673′,’1′);”>29A of the Representation of the People’s Act. It has now vertically split. One group headed by the General Secretary Thiru V. Gopalaswamy and the other expelled group headed by Thiru M. Karunanidhi and the plaintiff. The Election Commission is vested with the powers of adjudicating their rival claims and to decide as to which rival section is to be treated as the recognised political party. One will be recognised and the other will be rejected and it means that the recognised section of the party alone is entitled to use the name, flag and the symbol with the rights and privileges of the recognised political party. Pending such adjudication, both the rival groups are entitled to continue to use the party flags, name, symbol, etc., without any let or hindrance by the other faction. Since the Election Commission is a Constitutional authority vested with the powers under the Act to decide about the various splinter groups and their claims the jurisdiction of all other organs of the State, namely, the Legislature, the Executive and the judiciary is barred to decide about the dispute unless there is an expressiconferral of power notwithstanding the vesting of such power with the Election Commission. The Civil Court’s jurisdiction is therefore barred. The suit is not maintainable as one without jurisdiction in respect of the subject matter. In the DMK, for which the defendant is the Chairman of the party, Mr. Selvaraj is a Member of the Tamil Nadu Legislative Assembly belonging to this DMK. There is another M.L.A, belonging to the plaintiff’s group. The Speaker of the Legislative Assembly has considered and declared both the M.L.As. as belonging to DMK 1 and DMK 2. The Tamil Nadu Legislative has allowed both the M.L.As. to function as DMK M.L.As., belonging to the rival factions. This fact has been suppressed by the plaintiff in the suit. In terms of the order of the High Court dated 8.4.1994 made in Application No. 342 of 1994, M.L.A. of the respondent is prevented from using the name, flag, symbol etc., as usual, others will be a confrontation with the powers and privileges of the Legislature besides a conflict of jurisdiction. If the order of this Court is obeyed inside the Assembly it amounts to contempt of Legislature, if it is not obeyed it amounts to contempt of High Court. This Court has rendered itself liable for contempt proceedings before the Tamil Nadu Legislature. The legislative Speaker can modify his order on the basis of the Election Commission’s final adjudication. This cannot happen in the case of the High Court and there will be a confrontation between the Election Commission and the High Court. To avoid this type of situation, the Constitution makers and the Parliament in its wisdom conferred the power with the Election Commission to the exclusion of all other organs.

11. The suit is not one of a Civil nature within the meaning of Section 9 of the civilProcedure Code. The High Court has no jurisdiction and the order of the High Court is a nullity and it is not enforceable under the law. All the defendants/respondents have been expelled from the DMK illegally and in flagrant violation of the Constitution of the party. Right of the plaintiff to restrain the respondents if any will flow only after he gets a declaration to the effect that the expulsion of the defendants/respondents is legal and valid and that they are no more entitled to the right of using their name, flag etc., There is no prayer in the suit for declaration that the expulsion of the defendants is legal and in the absence of a prayer for declaration, the prayer for injunction is not valid and sustainable. The Government of Tamil Nadu and the Election Commission are necessary parties, without whom there cannot be any effective adjudication. The suit is therefore bad for non-joinder of parties. The fact relating to the injunction granted by the Subordinate Courts was not brought to the notice of this Court. The members of the respondents’ party are in a dilemma, since obedience to one amounts to disobedience to the other. The interim order obtained by such suppression is therefore null and void. The respondents were using the flag, name etc., all these days and there was no confusion. The plaintiff was aware of this and also the opening of the Head Office by the respondents at Karpagam Avenue,Madras-28. Because the DMK of the respondents was becoming stronger, day by day, gaining popularity and mass support, the plaintiff has chosen to obtain the exparte order to stop the Mammoth procession, which is to take place on 16.4.1994. It is a gross abuse of the process of the Court and direct interference with the due administration of justice constituting Criminal Contempt of Court. The respondents are having millions of followers and sympathisers among the public and the entire rank and file of the DMK are in their support. It is the fundamental right of every citizen to form association for political purposes. The interim order given by the Court contravene the fundamental rights of the defendants and their followers and it is not constitutionally permissible. The prayer in the suit and in the application is one and the same granting interim prayer has resulted in allowing the main prayer without any notice to the respondent. The injunction order against unspecified and unascertainable individual is not permissible. The plaintiff could have ascertained all the details necessary with regard to the defendants instead stating that the father’s name and age of the defendants are not known to the plaintiff in the plaint. Thiru M. Karunanidhi was a non-descript and a non- entity when the party was started in 1949. By his continuous scheming and manipulation he got himself elected as the leader of the party. By his unscrupulous schemes, means and manipulations he saw that any one who is likely to enter the zone of leadership is expelled or harassed to go out of the party. Because of his self-centered leadership, the historic Dravidian movement has lost its political purposes, objectives and image and has been reduced to a party for the self-advancement of those who cling to power. Pending recognition by the Election Commission, the respondents are entitled to use the name, flag etc., and the claim to the contrary is not correct. This respondent has made comments only to the extent of limited purpose of the counter affidavit for vacating and interim suspension of the order of injunction. He reserves to file additional counter if and found necessary. The injunction application has to be dismissed and the order of interim injunction should be vacated. Interim suspension of the injunction order has also to be made.

12. On the basis of the counter affidavit of the second defendant Application No. 2384 of 1994 was taken on file to pass an order vacating the interim injunction dated 8.4.1994 and an Application No. 2385 of 1994 was taken on file for interim suspension of the interim injunction order dated 8.4.1994.

13. The applicant/plaintiff in his common reply affidavit states briefly as follows:- Reply affidavit to the counter of the first respondent. The allegation that the dispute relates to indoor management of political matters is denied. The expelled member cannot be treated as an indoor member. The allegation that this Court has no jurisdiction has no force. The alleged General Council Meeting held at Trichy on 26.12.1993 has no legal sanction. It has not been done in accordance with the Rules and Regulations of DMK. The expelled members have no right to convene the General Council. The General Secretary alone can convene the General Council Meeting. Whatever decision taken in the said meeting at Trichy is illegal and void. The allegation that the injunction cannot be enforced as it requires constant supervision of the Court is a myth. It is for the plaintiff to supervise the enforcement of the order of this Court. It is only the DMK headed by Thiru M. Karunanidhi,as the President and the plaintiff as the Secretary is a validly registered political party before the Election Commission. Even before 1988 amendment to the Representation of People Act, the DMK was functioning as a political party. The filing of the suit has not been barred under the Representation of the People Act. The power of Election Commission is not mandatory. If the respondents raised any dispute before the Election Commission before expulsion then they can take shelter under para 15 and not at this juncture. The respondents have not challenged their expulsion in any forum and therefore the order of expulsion has become final, the expulsion was made before the dissolution of the Coimbatore District Committee and it is not correct to state that the Court has granted interim injunction. The Court has ordered only status quo. It is denied that with a view to groom Thiru M.K. Stalin, as a successor to the DMK party, action has been initiated against the fourth respondent. Action was taken against the fourth respondent due to his anti party and indisciplinary activities. The first respondent having failed to render true accounts of the final collections made in the State Conference at Coimbatore and having failed to remit the balance of more than Rs. 17 lakhs, has filed the suit in Coimbatore with ulterior motive of grabbing the said amount. Inspite of the President’s appeal, the respondents went on misusing the party’s name and flag and therefore as a last resort the plaintiff has filed the suit.

14. Reply to the counter of the second respondent. The suit is maintainable as per Rule 20(7) of the Party Constitution and it will not come under Order 1 Rule 8 of Civil Procedure Code. The DMK has its own constitution, which empowers the General Secretary to file and defend any legal action on behalf of or against the party. In the past also, the General Secretary has been initiating and defending legal action. There is only one DMK party under the Presidentship of Thiru M. Karunanidhi and it continues to be the registered party on the records of the Election Commission and the plaintiff continues to receive the communications from the Election Commission as a General Secretary of the DMK party. The powers given to the Election Commission under para 15 is not absolute and unconditional whereby the jurisdiction under the common law is taken away. There is no dispute before the Election Commission with regard to the subject matter of the present suit filed by the DMK party. There are no rival groups in the party. The jurisdiction of this Court, which is a Constitutional authority is not barred either expressly or impliedly. The dispute is of Civil nature and the relief prayed for is not barred. The decision of the Speaker of the Tamil Nadu Assembly is an interim order confined to the business of the said House only. Four Assembly Members in Pondicherry, one Assembly Member in Tamil Nadu and eight Members of the Rajya Sabha support the leadership of the plaintiff and Thiru M. Karunanidhi. The majority being with them. The respondents who have been expelled from the party have to question the expulsion in a Court of Law, which they have not done. Government of Tamil Nadu and the Election Commission are not the necessary parties. The suit is not bad for non-joinder. The expelled members have no right to convene the General Council and their claim that they have expelled the plaintiff and others from the party is amusing. The plaintiff continues to have their Head Office at Anna Arivalayam, Anna Salai, Madras-18, whereas the respondents have opened office in another place. The respondents were given responsible posts of M.L.A., M.P., Ministership, etc., by the party high command. They have lost the confidence of the party’s high command use to their antiparty activities. The country knows about the sacrifices of Thiru M. Karunanidhi to the people of Tamil Nadu for the past 55 years. The respondents, who have enjoyed all sorts of position have used the defamatory statements against Thiru M. Karunanidhi.

15. Reply to the counter filed by the fourth respondent. The allegation that prior notice to the General Council at Trichy was served on 17.12.1993 is false. Even before the date of announcement made by the fourth respondent, all the respondents were expelled from the party. It is not true to state that the strength of the General Council is 825 and out of which 447 Members attended the General Council Meeting at Trichy. The fourth respondent himself has announced in his Press Statement on 24.12.1993 that he had sent invitation to 1112 members of the General Council. Only after the plaintiff has made announcements in the DMK Administrative Committee meeting on 20.12.1993 about the convening of the General Council meeting to be held at Thanjavur on 29.12.1993, the announcement has been made by the fourth respondent in the news paper on 24.12.1993. The meeting held at Trichy is unauthorised and its decision are null and void. Mere sending a communication to the Election Commission does not amount to comply with the requirements relating to raising of disputes. The Election Commission has jurisdiction only to decide the symbol of the party. The plaintiff cannot approach the Election Commission for injunction for the use of party’s name and flag. Proceedings before the District Munsif’s Court, Karur, has been dismissed on 15.3.1994. In the proceedings before the District Munsif’s Court, Coimbatore, status quo alone has been ordered. These disputes have nothing to do with the subject matter of the present suit. The defeat in 1991 General Election was due to the sympathy wave created by the murder of Mr. Rajeev Gandhi. The illegal visit of the fourth respondent to Jafna created a suspicion in the minds of the General public. The question of estoppel by acquiescence does not arise in the suit as admittedly the truth of the matter is known to both the parties. The 22 District Secretaries out of 30 District Secretaries have requested the Party Leadership to take action against the fourth respondent. The party headed by the plaintiff and his group continues to be the recognised party in the registry of the Election Commission. The fourth respondent has participated in the deliberations of Rajya Sabha as an unattached member and his name was shown as ‘Independent Member’ in the Official list dated 15.11.1993 published by the Rajya Sabha. The respondents have no right whatsoever to use the name and the flag of the party and unless they are restrained irreparable loss will be caused to the plaintiff. Hence the interim order should be made absolute and the applications filed by the respondents should be dismissed.

16. The point for consideration in all these applications is whether the interim injunction granted to the applicant/plaintiff is to be made absolute or vacated?

17. The point:- The plaintiff has filed the suit in his capacity as the General secretary of the DMK party at Anna Arivalayam, No. 268-269, Anna Salai, Madras-6 for a permanent injunction to restrain the defendants, their supports, sympathisers and members of the group from using the name and flag of the party in their conferences, meetings, processions, deliberations anywhere and for costs contending that the party which was started as a Social Reformist party on 17.9.1949 by Dr. Aringar Annadurai as the founder, is now having Thiru M. Karunanidhi, as its present President, the plaintiff Thiru K. Anbazhagan, as its General Secretary and Thiru Sadiq Basha as its treasurer and the defendants and their supporters were expelled from the party, in pursuance of disciplinary actions taken against them as per the rules governing the party and it was also approved by the General Executive Committee of the party in its meeting held on 25.11.1993 at Salem and also in the General Council Meeting held on 29.12.1993 at Thanjavur and that the defendants and their supporters claim themselves to be the real DMK party functionaries and are using the name and flag of the party throughout the State of Tamil Nadu in their meetings, processions etc., and since the Election Commission is likely to notify two by-elections in Tamil Nadu for the Assembly Constituencies of Mylapore and Perunthurai to be held in the month of May, 1994 if the defendants also used the name and flag of the party which belong to the plaintiff and his party, there is every likelihood of the electorate being deceived and mislead which will result in much hardship and injury to the plaintiff and therefore injunction should be granted. The defendants have not yet filed their written statement in the suit; but in the applications filed by them to vacate the interim injunction granted in favour of the applicant on 8.4.1994 they are contending that the suit is not maintainable since the defendants are the real DMK party and that the interim injunction granted against them causes irreparable loss to them and therefore the interim injunction should be vacated. In pursuance of an application dated 6.8.1989 signed by Thiru M. Karunanidhi and Thiru K. Anbazhagan as the president and General Secretary of the DMK party having its office at Anna Arivalayam No. 268-269 Anna Salai to register them as a political party under the Representation of the Peoples Act in the State of Tamil Nadu and the union Territory of Pondicherry, the Election Commission has registered the DMK as a political party as on 18.9.1989 and the same has been communicated to General Secretary by the Election Commission. Therefore the DMK party having its office at Anna Arivalayam is a registered political party in the records of the election commission can not be disputed. The applicants have submitted the rules and regulations of the party to the Election Commission which has also recognised the rules and regulations of the party and therefore it is binding on all the members of that party also cannot be disputed. It appears that on 1.11.1993, the General Secretary of the party had issued a show-cause notice to the fourth defendant giving details or certain charges against the fourth defendant and had required him to send a reply within a week. In the said notice Rule 36 and Section 7 of the party has been referred for the attention of the fourth defendant and has required him to send the reply within a week. Since the said notice indicates various charges against the fourth defendant and gives one week’s time to the fourth defendant and this show cause notice issued as per Rule 36 Section 7, which is referred in this notice in compliance of of Rule 36 Section 7. The total number of the . General Council members is also stated as about more than 1,100. It is stated in the said notice that atleast 1/3 members of the General Council should file an application to the General Secretary to convene a meeting. In other words, Section 7 of Rule 18 has also been drawn to the attention of the fourth defendant in the said show-cause notice issued on 1.11.1993. The fourth defendant had sent a reply on 7.11.1993. But the plaintiff in his capacity as the General Secretary did not accept the explanation given by the fourth defendant and by virtue of the powers vested in him in Rule 36 Section 1,2 and 14 expelled the fourth defendant from the post of Secretary of Election Committee and ordinary membership. We need not go into the question whether the expulsion is valid or not. Suffic it for us to observe that the General secretary of the DMK party had exercised the powers vested with him under Rule 36 Section 1, 2 and 14 and had expelled the fourth defendant after complying with the requirements of Rule 36, Section 7 and after inviting the attention of the fourth defendant to Rule 18 Section 7. Therefore the expulsion is a valid one. Learned counsel appearing for the first respondent during the course of his arguments has referred to this expulsion and has stated that the plaintiff has not obtained the approval of any court. As an aggrieved person, we can expect the fourth defendant alone to go to court, we cannot expect the plaintiff who had expelled the fourth defendant to go to court and get an order of declaration to the effect that the expulsion is a valid one. The expulsion of the fourth defendant is said to have been placed before the Executive Committee of the DMK party which met at Salem and it had approved the expulsion. Later on the defendants 1 to 3 and 5 to 11 have also been expelled by the General secretary on account of their support to the fourth defendant and their activities against the interest of the party. According to the applicant, the General Council of the party was convened by him to be held at Thanjavur on 29.12.1993 and all the members of the General Council were sent invitations and 908 out of 1112 General Council members have attended the General Council meeting held at Thanjavur under the Presidentship of Thiru M. Karunanidhi and have approved the act of the General Secretary in expelling the fourth defendant. In support of this contention, the applicant has also filed the attendance register of the General Council, which was held at Thanjavur on 29.12.1993, in which the signatures of all the members who have attended are found. The applicant has also filed affidavits of all the persons who have attended the meeting held on 29.12.1993 at Thanjavur in which the deponents have expressed full confidence in the President Thiru M. Karuanidhi, the General Secretary Thiru K. Anbazhagan and Treasurer Thiru Sadiqu Basha and wholeheartedly approved the disciplinary proceedings taken against the fourth defendant and have expressed that such disciplinary action is necessary for the benefit and welfare of the party and they wholeheartedly supported the disciplinary action taken against the defendants. According to the applicant in view of the approval of the General Council expelling the defendants from the various posts held by them and also the ordinary membership of the party, the defendants cannot claim themselves as members of the DMK party and that the party belongs to them and they alone are entitled to use the name and flag of the party since an expelled member has no proprietory interest or right in either of them. Learned counsel appearing for the first defendant has argued that the suit itself is not maintainable since it is an internal dispute between the members of a party and the Civil Court has no jurisdiction to sit in judgment over the indoor management of an association and therefore the suit is liable to be dismissed. This argument of the learned counsel appearing for the first defendant is not convincing since the sequence of events which I have referred above would reveal that the fourth defendant was expelled from the party on 11.11.1993 and the other defendants have been expelled subsequently and their expulsion was approved in accordance with the rules and regulations of the party. When the defendants were no longer members of the party from which they were expelled, it cannot be stated that the dispute between them and the plaintiff’s supporters who have expelled them in is a dispute in the indoor management of an association and therefore this court has no jurisdiction.

18. The learned counsel appearing for the first defendant would argue that sine the General Secretary has not convened the General council meeting to decide the question whether any disciplinary action is to be taken against the fourth defendant in pursuance of the requisition made by the eight defendants in their letter dated 14.10.1993, the first defendant himself has convened the meeting of the General Council on 26.12.1993 at Tiruchi and in that meeting Thirugalargal M. Karunanidhi K.Anbazagan and Sadiq Basha were removed from the post they were holding in the party and therefore the resolution which has approved disciplinary action taken against the defendants is not a valid one. It is to be noted that the signatories to the requisition dated 14.10.1993 to convene the General Council meeting are District Secretaries of Coimbatore, Madurai, Periyar, Tirchi, Kanyakumari, Nellai Kattabomman Districts and as such they must be aware of the rules and regulations of the party; but inspite of it, the requisition has been given to the General Secretary of the party only by 8 District Secretaries to convene a General council Meeting and it cannot be said that it is avalid requisition as per Rule 18 Section 7. The said letter also reads that the General Council Meeting may be convened without pointing out to the Rules and it indicates that the signatories to the said letter were aware that their request for convening the General Council meeting is not in accordance with Rule 18 Section 7. When there is no valid request for convening a General Council Meeting to the General Secretary, the defendants cannot contend that inspite of their request, the General Council Meeting was not convened and therefore they themselves have convened the meeting. Learned counsel appearing for the applicant has pointed out that as per the report of the news item in Indian Express dated 21.12.1993, the General Council of the party will be convened at Thanjavur on 29.12.1993 and it gives clearly more than seven days notice as required under the rules. While so, in the news item reported from Tiruchi dated 24.12.1993 and published on 25.12.1993 the General Council Meeting was called by the fourth defendant to be held at Tiruchi on 26.12.1993 and it is not in accordance with the rules. He would also point out that the fourth defendant himself is said to have stated at Tiruchi that invitations had been sent to all the 1112 members of the Council and would argue that no such invitation had been sent to anyone and it cannot be stated that the alleged General Council Meeting at Tiruchi was held in accordance with the rules. When the applicant has produced documentary evidence with regard to the members present and attended the General Council Meeting at Thanjavur on 29.12.1993, except a statement by the fourth defendant that 447 members have attended the meeting there is no evidence as to how many have really attended the meeting at Tiruchi. According to the learned counsel appearing for the applicant even assuming that 447 members have attended the meeting convened by the fourth defendant, the resolution passed thereon expelling the President, General Secretary and Treasurer of the party from their posts cannot be a valid resolution for the reasons that the meeting was not a lawfully convened meeting and there is no evidence that the minimum number of persons required to pass such a resolution was present and passed the same. From the typed set furnished by the respondents it is seen that the announcement for the meeting was made on 24.12.1993. Therefore the meeting dated 26.12.1993 does not pear to be in accordance with the Rule 18, Section 5 or 7. The learned counsel for the plaintiff would argue that the claim of the defendants that the meeting held on 26.12.1993 at Tiruchi by the defendants and their supporters cannot be considered as a General Council Meeting of the DMK party as it is not in accordance with Rule 18 Sections 5 or 7 of the Rules and Regulations of the party. According to the learned counsel for the plaintiff, there is no evidence that actually 447 members attended the alleged General Council Meeting convened by the first respondent at Tiruchi and therefore according to the learned counsel appearing for the applicant relieving the President and Secretary from their posts is unjust and illegal and it cannot be stated as an indoor management to oust the jurisdiction of the civil court. This argument is convincing and acceptable. The argument of the learned counsel appearing for the defendants that this court has no jurisdiction relying upon the decisions in Janardhan C. Upadhye v. Rajni Patil, AIR 1974 Bom. 654 wherein it has been held that unless any proprietory interest of any member or unjust and illegal, expulsion of individual member is involved, the general doctrine of indoor management should apply and courts should normally refuse to interfere is not tenable since the very decision makes it clear that in cases where the unjust and illegal expulsion of a member is involved, the jurisdiction of the Civil Court is not taken away.

19. Clause 15 of the Symbols Order reads as follows:-

“When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the Sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival Sections of Groups.”

From this we can infer that Clause 15 of the Symbols Order (1968) can be applied only if there is rival group or splinter group and there is a dispute between them and the parent group, the said clause does not say anything about the expelled group. The applicant’s case is that the defendants are no longer members of the DMK party and the documentary evidence produced by them support it. There is no contra evidence on behalf of the defendants that they continue to be the members of the DMK even after the expulsion from the party. Therefore the dispute between the plaintiff and the defendants cannot be said to be a dispute which has to be decided in accordance with Clause 15 of the symbols Order by the Election Commission ousting the jurisdiction of this court.

20. The defendants would also contend that there is no proprietory right involved in the present case to grant injunction. Learned counsel appearing for the plaintiff would point out that meaning of the word ‘Flag’ as found in the Law Lexicon is’a piece of cloth or bunting, usually with a pattern or a device, generally oblong or square in shape, attached to a pole or staff and used to denote nationality, party or ownership.’ Regulation 1 of the party refers to the name and Regulation 4 refers to the flag as belonging to them. The term ‘property’ has been defined in the Law Lexicon, as something which a person can exclusively possess and own. Learned counsel appearing for the plaintiff has recollected the dispute with regard to the removal of and alteration of namam as the subject matter of a Civil suit and would argue that any object which can be owned by a person has to be considered as a property and if we consider the name of the party and the flag of the party as owned by the plaintiff, it cannot be stated that there is no properietory right for the plaintiff, in them. As per Rule 1 of the Rules and Regulations, the name of the party shall be DMK and as per Rule 4, the party shall have a flag of black and red colours, black at the top and red beneath it of the size 3:2 indicating that the owner of the name and flag is the party. The name and flag are therefore the properties of the party. The lawfully elected President and General Secretary of the party are Thiru M. Karunanidhi and Thiru K. Anbalagan respectively. Section 38(3) of the Specific Relief Act provides that “When the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of a property, the court may grant a perpetual injunction, where the invasion is such that compensation in money would not afford adequate relief, among other things.” The definition of the words name and flag and the provision of Section 38(3) of the Specific Relief Act when considered together, the contention of the defendants that there is no proprietory right for the plaintiff to get injunction is to be rejected.

21. Learned counsel appearing for the second defendant would argue that once the Election Commission is seized of this dispute, the Civil Courts jurisdiction is ousted and any order that may be passed should not be a helping hand to the plaintiff since it would give room for confrontation with the Election Commission. The fourth defendant had of course sent a letter to the Election Commission and the Election Commission in its turn had sent a copy of the same to the plaintiff to get their remarks, and the matter is pending before the Election Commission, the application filed by the fourth defendant before the Election Commission has been replied by the plaintiff and the reply sent by the plaintiff gives a narration of things that happened earlier. Therefore, it cannot be stated that the plaintiff cannot file the suit in this court on the ground that the Election Commission has seized the matter.

22. It is argued by the learned counsel appearing for the second respondent that the suit is not maintainable under Order 1 Rule 8 Code of Civil Procedure. As per Rule 18, Section 5, the General Secretary is empowered to initiate all ligilations. Therefore, it cannot be said that Thiru K. Anbazhagan is not a competent person to file the suit since he continues to be the General Secretary and enjoys the full confidence of eight out of nine members of Parliament of the DMK party, four members of the Pondicherry Legislature and one member of the Tamil Nadu Legislature, who have given affidavits to the effect that they owe allegiance to the leadership of the party headed by Thiru M. Karunanidhi and Thiru K. Anbazhagan as secretary and have full confidence in their leadership and that they are fully supporting and endorsing the disciplinary action taken against Thiru V. Gopalaswamy, the fourth defendant herein and certain others. These affidavits have been filed before the Election Commission of India. Apart from these affidavits of the Members of the Parliament and Legislature, the plaintiff has filed the affidavits of 908 General Council Members to the same effect. In view of the abovesaid affidavits, it cannot be stated that the suit has not been filed by a competent person to protect the property of the party viz., the name and flag. As such, it cannot be stated that it would amount to an interference by the court into the internal administration of a political party. The suit is one for restraining the defendants and their men to act against the interest of the party as stated by the deponents of the affidavit, which I have stated earlier. Therefore I am of the opinion that the contention of the learned counsel appearing for the second respondent that injunction order is not a valid one is not tenable. The learned counsel appearing for the fourth defendant would argue that since the Election Commission had seized of the dispute, it alone can decide the dispute under Clause 15 of the Symbols Order and this court has no jurisdiction to try the suit Under Section 9 of Code of Civil Procedure. The suit is one for preserving the proprietory rights of the plaintiff viz., the name and flag of the party. Any claim to a proprietory right over a property is a pre-existing common law right. This pre-existing common law right is now recognised by the statute viz., Symbols Order and a new statutory right is provided without excluding the civil Courts jurisdiction. Therefore both the common law and the statutory remedies which are concurrent remedies are available to the plaintiff and the option to choose the remedy and machinery for the enforcement of the rights lies with the plaintiff. If the right claimed by the plaintiff is not a preexisting right in common law and it had been created by the statute and the statue itself provides a machinery for enforcement of the right both the right and the remedy being creation of the statue and finality is also intended to the result of the statutory proceedings, then even in the absence of a provision excluding the jurisdiction of the Civil Court, we can say that the civil courts Jurisdiction impliedly barred. But the right claimed by the plaintiff being a preexisting common law right, it cannot be stated that the civil Courts jurisdiction is ousted by virtue of clause 15 of the Symbols order. The right to have a symbol in the election is right created under the statute and it is not a common law right. A particular symbol can be allotted by the Election Commission to any one who contests the election subject to the limitation that a particular symbol allotted to a particular recognised party cannot be allowed to be the symbol of any other party in that particular constituency. But the name and flag of a political party cannot be used in any where in India except by the party which had been registered by the Election Commission. Therefore, the argument of the learned counsel appearing for the fourth defendant that the plaintiff had no proprietory right and therefore the jurisdiction of the Civil Court is ousted impliedly if not expressly is not tenable. Learned Senior counsel Mr. Ramamurthy, has further argued that the plaintiffs are aware that the matter is pending before the Election Commission and that the plaintiffs are also aware that the fourth defendant and his supporters were holding meetings, processions etc., as DMK members and are using DMK flag throughout the Tamil Nadu for the past 3 months and acquiesced the conduct of the respondent for all these months and has now come forward with this suit just one week prior to the rally announced by the fourth defendant and that shows that the plaintiff has neither prima facie case nor balance of convenience in his favour and if the interim injunction granted is not vacated, the rally cannot be held and the risk of causing injustice to the defendant’s is there and therefore the injunction should be vacated. This argument of the learned counsel is not acceptable since the learned counsel wants to bring this case as one Under Section 41(g) of the Specific Relief Act, which provides that an injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced. Whether the grant or refusal of an interim injunction will have the practical effect of by putting an end to the action, the court should approach the case on hand on the broad principle of what it can do in its best endeavour to avoid injustice and to balance the risk of doing an injustice to either party. The plaint refers to the probable announcement of two by- elections for two constituencies in Tamil Nadu Assembly. The election process are likely to commence in the last week of April, 1994. Whileso, if both the groups claim that they are the real and true DMK party and use the same name and flag certainly there will be a confusion in the mind of the electorate in these two constituencies and it will give room for law and order problems created by the rival groups. In the above circumstances, the situation before the announcement of the by-elections and after the announcement of the by-election will be difficult and it cannot be stated that the plaintiff’s group has acquiesced the conduct of the defendants and therefore no injunction could be granted even in the changed circumstances and surroundings. In fact, refusal to grant injunction may cause injustice to the plaintiff since the evidence before this court shows that the plaintiff’s group alone continues to be the parent party entitled to use the name and flag of that party. Further, it cannot be stated that the plaintiff had no intention of preventing the defendant from using the flag and name of his party till the filing of the suit and has induced a reasonable belief in the mind of the defendant that he consents to it since the comments sent by the plaintiff to Election Commission on 5.2.1994 a copy of which sent to the fourth defendant by the Election Commission, shows that it is not as if the plaintiff has acquiesced the conduct of the defendant without protest. Learned counsel appearing for the applicant Mr. K.V. Venkatapathi, would argue that the plaintiff did not take action earlier since he expected that the defendant would mend and return to the parent organisation and since there was no immediate cause for objecting to the use of the name and flag by the fourth defendant and his group until the announcement of by-election was made. This reasoning given by the learned counsel for the applicant is convincing. Further it is to be noted that subsequent to the letter of the party leader in Parliament to the Rajya Sabha Chairman, the Rajya Sabha had announced the fourth defendant as a member without party affiliation. Therefore the theory of acquiescence by conduct is not available to the fourth defendant to hold that the injunction if not vacated, it would cause injustice to him and his supporters.

23. Learned Senior counsel appearing for the defendants 2 and 11 M/s. Krishnan and A.L. Somayaji argued that the Honourable speaker of the Tamil Nadu Assembly has recognised the 11th defendant as DMK(2) and if the interim injunction granted to the effect that none of the defendants or supporters or men can use the name and flag is not vacated, there is every chance of a confrontation arising between this court and the legislature and to avoid such unhealthy trend, the interim injunction should be vacated. By no stretch of imagination it can be stated that the Hon’ble Speaker of Tamil Nadu Assembly is either a supporter or a sympathiesor of the 11th defendant in his political activities. He is also not a member of the party to which the 11th defendant belongs. Since two legislators in the Assembly originally belonged to a single party earlier are now in rival groups, in order to identify them and for convenience only the Hon’ble Speaker of Tamil Nadu Legislature has termed the two legislatures, who belonged to the DMK party originally as DMK(1) and DMK (2). Interim injunction is to restrain the defendants and their supporters only from using the name and flag. It is not against the Hon’ble Speaker of the Tamil Nadu Assembly and the media people who describe the two legislatures of the Tamil Nadu Assembly as DMK(1) and DMK(2) for the purpose of identification. There is absolutely no room for any confrontation between this court and the Tamilnadu Legislature, and the argument of the learned counsel appearing for the second defendant that if the injunction is not vacated there is every chance of confrontation between the legislature and the court is not at all convincing and acceptable.

24. Learned counsel appearing for the second defendant would further argue that the suit is not maintainable under Order 1, Rule 8 Code of Civil Procedure, since as per Order 1, Rule 8 Code of civil Procedure, permission of the court should be obtained by the plaintiff who wants to file a representative suit. The suit has been filed by the plaintiff in his capacity as General Secretary of the DMK party as per the party’s Rules and Regulations. The plaintiff is empowered as General Secretary to conduct litigation on behalf of the party any legal issue that may arise relating to all movable and immovable properties. This suit is not a representative suit. It is a statutory suit since the rights of the plaintiff is a recognised one by the Election Commission in view of the registration of the party as a political party. Therefore there is nothing improper or illegal in the General Secretary of the DMK party in filing the suit for injunction and it cannot be said that the suit is not maintainable for want of permission to the plaintiff to file the suit.

25. Learned counsel appearing for the 11th defendant Mr. A.L. Somayaji would argue that since the court has granted interim injunction and if the Election Commission decides after enquiry that the plaintiff’s group is not the DMK party, consequences of the contradictory rulings will be disastrous; but the same argument would hold good, if this court holds that the plaintiff’s party is not the DMK party and the Election Commission holds that the plaintiff’s party is the DMK party. When such a contingency arises, the finality can be reached only before the Supreme Court. The High Court cannot keep quiet and refrain from passing an order on the material placed before it under an impression that the consequences will be disasterous if the decision of the Election Commission and the High Court are conflicting. The High Court has to pass an order on each and every application filed before it and it cannot shirk its responsibility from passing an order on the ground that the consequences will be severe if the order of Election Commission that may be passed in future is not in consonance with the order passed by this court at present.

26. Learned counsel appearing for the defendants 1 and 2 would argue that injunction being an equitable remedy the plaintiff should come to court with clean hands and that it is not so in this case since the plaint has not referred to the two suits filed by the first defendant before the DMC Coimbatore and another suit filed by one of the parties before the DMC Karur and the interim orders passed in those suits. The affidavit filed for getting interim orders in those suits are available in the typed set of papers. From it we are able to see that the subject matter of those suits and the subject matter in this suit are different. Therefore failure to mention about the other suits pending in the other courts in the plaint cannot be a ground to vacate the interim relief granted to the plaintiff in this application on the ground of suppression. If only suppression is committed on vital materials, equitable remedy cannot be granted. But when the materials not placed before this court have nothing to with the subject matter of this suit, it cannot be said that there is a suppression on the part of the plaintiff to vacate the injunction already granted.

27. Learned Senior Counsel Mr. Gandhi, argued that the order cannot be implemented since it is impossible for the court to enforce the order throughout the State of Tamilnadu and therefore the court should not grant injunction which cannot be implemented by it. It is not for the court to supervise and enforce its order directly. The party in whose favour the order is passed has to execute the same by approaching the concerned authorities for enforcing the orders of the court. In the present case, the plaintiff can approach the Executive and the Police for enforcing the order of this Court. At the time of the argument of this point, the learned senior counsel Mr. G. Subramanian referred to the order of the Supreme Court in Ayodhya Issue, breach of the same and the expression made by the Senior Counsel Mr. K.K. Venugopal before the Supreme Court. It only shows that the possibilities or otherwise in enforcing its order cannot be a ground which would weigh with the court while passing an order, Section 41(e) of the Specific Relief Act only says that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. In the present case, there is no contract between the plaintiff and the defendant which could not be enforced and therefore Section 41(e) of the Specific Relief Act cannot be a ground to vacate the interim injunction granted.

28. Learned counsel appearing for the plaintiff Mr. Venkatapathi, would refer to the counters filed by the second and fourth defendants and has argued that the second defendant in his counter has stated that both the parties are entitled to use the name and flag whereas the fourth defendant in his counter has stated that his party alone is entitled to use the name and flag of the party and it shows that the object of the defendants is only to eradicate the DMK party from the political scene of Tamil Nadu. There is no explanation on the part of the defendants as to why there is this discrepancy in the counter filed by the defendants 2 and 4 with regard to the right of the plaintiff defendant to use of the name and flag. Learned counsel Mr. Venkatapathi has also referred to the history of this party and would argue that when leaders like late Thiru E.V.K. Sampath, Hon’ble Thiru V.R. Nedunchezhian, Hon’ble Thiru S.D. Somasundaram and late Hon’ble Thiru M.G. Ramachandran got out of the party, and formed new parties they did not choose to claim that their party is the DMK and their flag is the DMK flag and that they have formed new parties with a flag of their own for rendering service to the people of Tamil Nadu and it is only with the object of eradicating the DMK party from the political scene, the fourth defendant and his supporters uses the name and flag of the party. He has also pointed out that the defendants who have enjoyed power and position and hailed Thiru M. Karunanidhi as their leader, have chosen to describe him as a non-entity and this would go to show how the defendants conduct themselves and it is only because of this attitude of the defendants, group clashes and other untoward incidents have occurred in Tamil Nadu and to avoid such things in future, the injunction already granted should be made absolute. None of the facts referred by the learned counsel with regard to the formation of new parties by those leaders who have got separated from the parent party could be denied since it is history. The defendants have enjoyed power and position is also history. Subsequent to the claim made by the defendants that they are the real DMK party and they are entitled to use the name and flag of the party, clashes have occurred between the rival groups in almost every town and village in Tamil Nadu and it has given room for law and order problems. If one of them alone is the recognised DMK party permitted to use the name and flag, there is every chance of avoiding group clashes and riots on this issue and maintenance of peace. The documentary evidence placed before this court would go to show that there is a prima facie case for the plaintiff to claim that theirs is the DMK party and they alone are entitled to use the name and flag of the party and the balance of convenience is also in their favour. The relative hardship that may be caused to the plaintiff by vacating the injunction will outweigh the hardship that the defendants are said to be suffering on account of the interim injunction. In that view of the matter, I am of the opinion that the plaintiff is entitled to have interim injunction made absolute and the applications filed by the defendants for vacating the interim injunction granted on 8.4.1994 and suspending the order of interim injunction granted are liable to be dismissed.

29. In the result, Original Application No. 342 of 1994 is allowed and the interim injunction granted in this application on 8.4.1994 is made absolute. In view of the order passed in O.A.No. 342 of 1994, Application Nos. 2373 to 2376, 2384 and 2385 are dismissed.