125-NLR-NLR-V-54-V.-R.-MURUGESU-Appellant-and-THE-NORTHERN-DIVISIONAL-AGRICULTURAL-PRODUCER’S-.pdf
Murugesu v. The Northern Divisional Agricultural Producers’
Co-operative Union Ltd.
517
1952Present : Pulle J. and L. M. D. de Silva J.V. R. MURUGESU, Appellant, and THE NORTHERNDIVISIONAL AGRICULTURAL PRODUCERS’ CO-OPERATIVEUNION LTD., RespondentS. C. 208—D. O. Jaffna, 5,496
Injunction—Circumstances when application for interim injunction and main actionmay he heard together—Co-operative Societies Ordinance {Cap. 107)—“ Officer ”-—“ Secretary ”—By-law 32—Section 45, 54.
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An action in connection with which, an interim inj unction is sought may beheard and disposed of by Court without a preliminary hearing in respect of theinterim application if the material upon which the case rests is all relevant tothe hearing of the application for the interim injunction.
By-law 32 read with section 54 of the Co-operative Societies Ordinanceenables a co-operative society to have an honorary secretary in addition to apaid secretary.
518
L. M. D. DE SILVA J.—ATurugeeu v. The Northern Divisional
Agricultural Producers' Co-operative Union Ltd.
A
XJlPPEAL from a judgment of the District Court, Jaffna.
8. J. V. Chelvanayakam, Q.C., with C. Shanmuganayagam, for the-plaintiff appellant.
N. E. Weerasooria, Q.C., with H. W. Tambiah, for the defendantrespondent.
Cur. adv. vult.
October 30, 1952. L. M. D. de Silva J.—
The plaintiff brought this action against the Northern Division Agri-cultural Producers’ Co-operative Union Limited of which he describedhimself as “ the secretary The action relates to certain arbitrationproceedings which were initiated under section 45 of the Co-operativeSocieties Ordinance (Chapter 107). In the plaint the plaintiff prayed.
“ (a) for a declaration that all actions taken or purported to have beentaken by its managing committee since October, 1948, regarding theplaintiff were ultra vires and illegal, and, (6) for an injunction on thedefendant union restraining it from referring or proceeding with theirapplication for arbitration under section 45 pending the final decision ofthis action In the replication the plaintiff prayed that “ the defendantsociety be restrained by an injunction of this Court from proceeding withthe proposed arbitration It is clear that the substantive relief whichthe plaintiff was asking for was an injunction.
The first point raised by counsel for the appellant was that there hasbeen no hearing of this case and that the learned District Judge has erro-neously dismissed the case itself upon the hearing of an application foran interim injunction.
The material upon which the case rested was all relevant to the hearingof an application for an interim injunction. In such circumstances it isnot unusual for courts to proceed to the hearing of the case itself without apreliminary hearing in respect of the interim application because such acourse avoids the necessity which would otherwise arise of covering thesame ground twice.
In the case before us it appears on a perusal of the proceedings that onSeptember 2, 1949, counsel for the plaintiff submitted all points which. arose in the ease on the pleadings for the consideration of the court andthere are indications that the parties had invited the court not merely tohear an interim application but to try the case itself. The learned DistrictJudge after hearing evidence and submissions of counsel dismissed theplaintiff’s case with costs and the only basis on which he would have doneso was that he was trying the case and not merely hearing the interimapplication. Counsel for the appellant points out that the proceedingsare headed “ inquiry ” and are followed by an “ order ”, The learnedDistrict Judge would have been well advised to have recorded formallythat he was trying the case and not merely hearing an interim application.
L. M. D. DJB SILVA J.—Murugesu v. The Northern Divisional
Agricultural Producers' Co-operative Union Ltd.
519
But we are not disposed to give way to the technical argument arising fromthe failure of the learned Judge to do so. In the circumstances of thiscase we think that we should act on the presumption that arises from thedismissal of the action by the learned District Judge, namely, that the pro-ceedings which have been recorded are those of a trial to which the partieswere submitting.
Two other points have been urged by the appellant. The first is basedupon the contention that the proceedings under section 45 would be in-valid if the plaintiff is not "an officer of the society ” within the meaning ofthat section. An " officer ” is defined in the interpretation section 54 toinclude a “ secretary ”. Section 45 was resorted to oh the basis that theplaintiff was at the material dates secretary of the society. It is conten-ded that another secretary had been appointed and that the plaintiff wasnot a secretary on the date on which action under section 45 was taken.For the purpose of establishing this proposition the appellant relies upontwo minutes R3 and R4 of the Annual General Meeting of the Union andof its Managing Committee. R3 made on the 16th of October is to theeffect “ that we have an executive secretary and two assistants and a peonon the paid staff and we elect an honorary secretary and honorary treasurereach of whom may be paid a travelling allowance of Rs. 30 a month.Approved”. R4 is to the following effect: “ the meeting of the ManagingCommittee of the Northern Division Agricultural Producers’ Co-operativeUnion was held with Muh an diram M. Krishner the Vice President,elected at the Annual General Meeting held on 16/10/48, in the chair.Mr. N. T. Sivagnanam was elected the Hony. Secretary and Mr. E. P.Rasiah was elected the Hony. Treasurer ”. These minutes indicate^that an honorary secretary and honorary treasurer were appointedin addition to the existing secretary. They do not in our view indicatethat the plaintiff had in any way been ousted from the office of secretary.We are invited to consider the difficulties that may possibly arise inhaving two secretaries functioning but these difficulties, if they didexist, are not relevant to the decision of this case. By-law 32 says "theCommittee shall appoint a secretary and a treasurer ” and it is clear thatmore than one secretary can be appointed under it as the singular in lawincludes the plural.
The next point urged arises from the definition of “ officer ” in the ordi-nance, namely, “officer includes a chairman, secretary, treasurer, memberof the Committee or other person, empowered under the rules or by-lawsto give directions in regard to the business of a society ” (section 54). Itis contended that the secretary under this definition must be a member ofthe Committee and hold honorary office. It is clear from by-law 32(above) that the Committee may appoint a paid secretary. Nothing hasbeen pointed out to us which compels us to the view that the word“ secretary ” must be taken to mean an “ honorary secretary ”.
The appeal is dismissed with costs.
PtTXJjE J.—I agree.
Appeal dismissed.