Andhra HC (Pre-Telangana)
P.Veera Swamy And Others vs Gandham Chandra Sekhar Rao And Others on 9 July, 2013
Author: Sanjay Kumar
Bench: Sanjay Kumar
THE HON'BLE SRI JUSTICE SANJAY KUMAR
W.P.NO.9129 OF 2013
dated:09-07-2013
P.Veera Swamy and others.... Petitioners
Gandham Chandra Sekhar Rao and others...Respondents
Counsel for petitioners:Sri Vedula Srinivas
Counsel for respondents: Sri Y.V.Ravi Prasad
Sri P.Govinda Reddy
Govt. Pleader for Revenue
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. (2003) 6 SCC 675
2. 1998 (4) ALD 372 (DB)
3. 1997 (4) ALD 604
4. 2001 (5) ALT 553 (F.B.)
5. 2003 (3) ALT 485
6. 2012 (4) ALD 175 (SC)
7. 2007 (5) ALD 866 (DB)
THE HON'BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NO.9129 OF 2013
O R D E R
Section 23 of the Andhra Pradesh Societies Registration Act, 2001 (for brevity, the Act of 2001), provides for resolution of disputes amongst the members of the Society in respect of any matter relating to the affairs of the Society through arbitration or by applying to the District Court concerned which is empowered to pass such order as it may deem fit after necessary enquiry. The scope and extent of the powers of the District Court under this provision, in the context of the interlocutory relief that it can grant pending disposal of the main case, fall for consideration in this writ petition. The first respondent herein filed SROP No.1 of 2013 before the learned Principal District Judge, Ongole, under Section 23 of the Act of 2001, seeking a declaration that the election meeting held on 03.07.2012, through which respondents 1 to 13 therein claimed themselves to be the elected members of the Standing Committee of J.M.B.Church, Ongole, respondent 14 in the OP, as illegal and for a consequential permanent injunction restraining them from proclaiming themselves as the Standing Committee members of the said Church or in any way interfering with its affairs till regular elections were held in accordance with the bye-laws. He also sought a declaration that respondent 15 in the OP, viz., Rev.D.J.Augustine, the second respondent herein, being the permanent President- cum-Pastor of the Church as per its bye-laws, was alone entitled to control and manage the affairs of the Church till regular elections were held for the Standing Committee and for a permanent injunction restraining respondents 1 to 13 in the OP from interfering with the functioning of respondent 15 as the permanent President-cum-Pastor of the Church.
This OP was filed in March, 2013. Therein, the first respondent herein filed IA No.730 of 2013 under Order 39, Rules 1 and 2 read with Section 151 CPC for a temporary injunction restraining respondents 1 to 13 therein from obstructing respondent 15 from performing the programmes and activities of the Church. The Principal District Judge, Ongole, passed the following order in the said IA on 21.03.2013.
"It is ordered that you (Respondents 1 to 13) be and are hereby restrained by means of ad-interim injunction from obstructing the Pastor-cum-President of 14th respondent Church Viz., Rev.D.J.Augustine from performing all programmes and activities of the church by proclaiming yourselves as standing committee members of R-14 church subject to the orders in contempt case No.1354 of 2011 dated 29.11.2011 on the file of Hon'ble High Court of Judicature, Hyderabad till disposal and final result of the main S.R.O.P. Call on 10.04.2013."
This writ petition is filed by respondents 1 to 13 in the OP seeking a Writ of Certiorari to quash the above order. The facts, as culled out from the writ pleadings, are as under:
The first respondent herein initially filed SROP No.1 of 2012 on identical lines before the learned I Additional District Judge, Ongole. While the said OP was being contested by them, the first respondent filed a memo on 19.03.2013 seeking permission to withdraw the same. Even before the said OP was dismissed, he filed SROP No.1 of 2013 before the learned Principal District Judge, Ongole, with identical pleadings and prayers. By the order under challenge, the learned Principal District Judge, Ongole, straightaway allowed IA No.730 of 2013 filed by the first respondent in the OP as the interim order granted therein was directed to be continued till the disposal and final result of the main SROP and therefore amounted to disposal of the IA itself. No notice was given to the affected parties and no opportunity of hearing was allowed to them. Separately, Rev.D.J.Augustine, the second respondent herein, himself approached the Courts by filing OS No.184 of 2010 before the learned Principal Junior Civil Judge, Ongole, and OS No.414 of 2012 before the learned First Additional Senior Civil Judge, Ongole. OS No.184 of 2010 was filed for a declaration that the Resolution of the Standing Committee of the Church dated 16.03.2010 requesting him to abstain from attending the Church and discharging his duties as Pastor was illegal and for a consequential permanent injunction restraining the defendants in the suit from obstructing him from discharging duties as the Pastor of the Church. Therein, he filed IA No.696 of 2010 for a temporary injunction restraining the defendants from interfering with his functioning as Pastor of the Church. This IA was dismissed by the trial Court on 15.07.2010. Aggrieved thereby, he filed CMA No.26 of 2010 before the Family Court-cum-Court of the learned Additional District Judge, Ongole. Pending the appeal, he sought interim relief in IA No.798 of 2010 filed in the CMA. The said IA was dismissed by the appellate Court on 23.12.2010. However, the main CMA was allowed on 02.08.2011 granting a temporary injunction restraining the defendants in the suit from obstructing the second respondent herein from discharging his duties as Pastor of the Church. Aggrieved by the order passed in the CMA, the petitioners herein filed CRP No.3277 of 2011 before this Court. The said CRP was allowed in part on 05.09.2011, modifying the order passed by the appellate Court to the effect that the second respondent herein would be entitled to function as Pastor for all purposes except for preaching from the pulpit on Sundays. The second respondent herein sought modification of this order, by filing CRPMP No.6010 of 2011 in the said CRP, seeking permission to preach on Sundays.
However, the same was dismissed on 29.11.2011. The second respondent also filed CRPMP No.6011 of 2011 seeking a direction for payment of the salary allegedly due to him. This CRPMP was also dismissed on 29.11.2011. He thereafter instituted contempt proceedings in CC No.1354 of 2011 before this Court complaining that he was being prevented from entering the Church on Sundays. This contempt case was closed on 29.11.2011 making it clear that the second respondent herein was entitled to enter the Church on Sundays but not for the purpose of preaching.
The second respondent herein then filed IA Nos.2356 and 2357 of 2011 in OS No.184 of 2010 for payment of arrears of salary and grant of police aid for implementing the orders passed in CMA No.26 of 2010, as subsequently modified in CRP No.3277 of 2011. Both these IAs were dismissed by the trial Court on 13.03.2012. While things stood thus, the decision of the Standing Committee of the Church to remove the second respondent herein from the post of Pastor was approved at the general body meeting held on 06.06.2012. He was informed of this decision on 07.06.2012 and was asked to vacate the Parsonage and handover possession of the residential building within 15 days. Aggrieved thereby, the second respondent filed CC No.1143 of 2012 before this Court complaining that the order passed in CRP No.3277 of 2011 stood violated. This contempt case was closed by this Court on 14.09.2012 observing that the order dated 07.06.2012 gave rise to a separate cause of action which was entirely different from the cause of action pending in OS No.184 of 2010, and therefore, the second respondent had to work out his remedies separately.
The second respondent thereupon filed OS No.414 of 2012 before the Additional Senior Civil Judge, Ongole, seeking a declaration that the letter dated 07.06.2012 was illegal and a permanent injunction against the defendants in the suit from appointing a new Pastor. He also filed IA Nos.969 and 970 of 2012 therein for temporary injunctions against the defendants from proceeding with the appointment of a new Pastor and from evicting him from the Parsonage. These IAs were allowed by the trial Court on 22.02.2013. Significantly, the second respondent did not choose to seek any interim direction in the said suit with regard to his being continued as Pastor of the Church.
The petitioners therefore alleged that the first respondent was put up by the second respondent to initiate proceedings under Section 23 of the Act of 2001 with an oblique motive. They asserted that the first respondent had suppressed the fact that the second respondent had already been removed from the post of Pastor by the order dated 07.06.2012, which was the subject matter of OS No.414 of 2012 before the learned Additional Senior Civil Judge, Ongole. The petitioners further contended that they had no remedy against the order passed by the learned Principal District Judge, Ongole, in the IA, which was itself without jurisdiction as the provisions of the CPC were not available to the District Court in a petition filed under Section 23 of the Act of 2001. By order dated 26.03.2013, this Court suspended the order dated 21.03.2013 passed by the learned Principal District Judge, Ongole, in IA No.730 of 2012 in SROP No.1 of 2013. The first and second respondents herein, having entered appearance through learned counsel, filed their counter-affidavits. The first respondent also filed a petition to vacate the above order dated 26.03.2013. The merits of the matter were addressed by the first and second respondents in their counters. In addition thereto, the first respondent contended that this writ petition was not maintainable. He stated that as the order of the Court below was passed under Order 39, Rules1&2 CPC, it was appealable under Order 43, Rule1 CPC. In the alternative, he contended that a Revision would lie before this Court against the said order under Article 227 of the Constitution of India. He stated that his prayer in SROP No.1 of 2012 was distinct and different from that in SROP No.1 of 2013 and that, in any event, he had already initiated steps to withdraw SROP No.1 of 2012. He further stated that it was inadvertently stated in the order impugned that it was granted till the disposal of the suit. He pointed out that notices had been ordered by the Court below and that the matter was posted on 10.04.2013 for appearance and contended that it was open to the petitioners herein to file their counter-affidavits before the Court below and seek vacation of the ad-interim injunction.
In his counter-affidavit, the second respondent echoed the arguments urged by the first respondent.
Though Sri P.Govind Reddy, learned counsel for the first respondent herein, contended that a writ petition would not be maintainable against the order passed by the learned Principal District Judge, Ongole, in IA No.730 of 2013 in SROP No.1 of 2013, this Court is not persuaded to agree. The decision of the Supreme Court in SURYA DEV RAI V/s. RAM CHANDER RAI1 sets at rest the scope of this Court's supervisory jurisdiction in a writ petition. Amongst the edicts encapsulated by the Supreme Court in para-38 of the judgment, the conclusions currently relevant are as under:
"(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
The issue is whether the learned Principal District Judge, Ongole, committed any gross error of jurisdiction while passing the order presently under challenge.
The power of the District Court to grant interim relief in a petition filed under Section 11 of the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350 Fasli (for short, 'the Act of 1350 Fasli'), which corresponds to Section 23 of the Act of 2001, fell for consideration before a Division Bench of this Court in T.TIRUMALA REDDY, SE, APSEB V/s. APSEB ENGINEERS ASSOCIATION2. Pending the OP filed under the said provision, an application was filed under Order 39, Rule 1 CPC for an interim injunction. The interim order granted in the said application was subjected to appeal under Order 43, Rule 1 CPC before this Court. The said order was stayed by a learned single Judge of this Court leading to the filing of an appeal under Clause-15 of the Letters Patent. The Division Bench, having taken up the main CMA itself, considered the scope of the jurisdiction of the District Court in the matter. Referring to the earlier Division Bench judgment of this Court in S.ELISHA V/s. WORLD MISSIONARY EVANGELISM OF INDIA AND OTHERS3 wherein it was held that an order passed by the District Court in a petition filed under Section 11 of the Act of 1350 Fasli was not a decree within the meaning of Section 2(2) CPC and was therefore not appealable under Section 96 CPC, the Division Bench observed that the District Court was exercising jurisdiction conferred by a special Act and not the ordinary jurisdiction conferred under the provisions of the CPC. The Bench opined that Order 39, Rule 1 could not be made ipso facto applicable to the proceedings under the special Act merely because it was the Principal Civil Court of the district that was dealing with the matter. Having stated so, the Bench observed that though skeletal in nature, the special Act did not preclude an application being filed for interim relief. The Bench further observed that it is well settled that a Court or a Tribunal which has jurisdiction to try or enquire into a matter has all incidental and ancillary powers so as to effectuate the substantive powers conferred on it and therefore, the power to enquire into and dispose of an application under Section 11 of the Act of 1350 Fasli carried with it the incidental or ancillary power to grant an interim order to prevent miscarriage of justice. Though the interlocutory petition in that case was filed under the wrong provision of law, the Bench observed that the Court was empowered to pass appropriate orders thereon in exercise of the incidental powers as clarified by it. The Division Bench therefore concluded that once the power of the District Court to grant interlocutory relief was not traceable to Order 39, Rule-1 CPC, no appeal would lie against such order under Order 43, Rule 1 CPC.
In G.V.RANGA RAO V/s. A.P. STATE ELECTRICITY BOARD ENGINEERS ASSOCIATION4, a Full Bench of this Court again considered Section 11 of the Act of 1350 Fasli. The issue for consideration before the Full Bench was whether an appeal was maintainable against an order refusing an injunction in a petition filed under Order 39, Rules 1 and 2 read with Section 151 CPC in an OP filed under Section 11 of the Act of 1350 Fasli. The Full Bench, upon a conspectus of all the aspects arising in the context of the issues framed, affirmed the view taken in S.ELISHA3 and T.TIRUMALA REDDY, SE, APSEB2, and held that no appeal was maintainable under Order 43, Rule 1 CPC against the interlocutory order passed by the District Court in a petition filed under Section 11 of the Act of 1350 Fasli.
Again in VISWENDER ARYA V/s. ARYA PRATINIDHI SABHA, A.P.,5 the scope of the District Court's jurisdiction in a matter of this nature fell for consideration before a learned single Judge of this Court. This time the provision in focus was Section 23 of the Act of 2001. The matter arose by way of an appeal filed under Order 43, Rule1 CPC against an interim order granted by the District Court under Order 39, Rule 1 CPC. Reliance was placed on the Full Bench Judgment of this Court in G.V.RANGA RAO4. The learned Judge, upon an analysis of Section 11 of the Act of 1350 and Section 23 of the Act of 2001, opined that though the language employed in the two provisions was not identical, in substance, the import was one and the same and therefore, the ratio laid down by the Full Bench was applicable and the appeal filed under Order 43, Rule 1 was not maintainable.
As pointed out by the Supreme Court in SUPER CASSETTES INDUSTRIES LTD. V/s. MUSIC BROADCAST PVT. LTD6, the grant as well as the limitations of the jurisdiction and authority of Courts are structured by the statutory grants and the limitations could be either express or implied from the scheme of that particular enactment. The observations in T.TIRUMALA REDDY, SE, APSEB2 that the Principal District Court, in exercise of jurisdiction under Section 11 of the Act of 1350 Fasli, would have incidental and ancillary power to grant interim orders demonstrate that this power is implicit in the statutory scheme.
It cannot therefore be doubted that the Principal District Judge, Ongole, had the power to grant interim relief pending the OP. However, such interim relief could be made absolute so as to be continued till the final disposal of the OP only after hearing all the parties concerned. In the present case, though the learned Principal District Judge, Ongole, captioned the order as an ad-interim injunction, he directed that it should continue till the disposal and final result of the main SROP. The hearing date given thereafter merely indicated that the SROP was to be heard on that date. The interim relief granted was declared to be of a final and enduring nature till the conclusion of the OP. Though it is contended on behalf of the first respondent that this was merely a mistake in the order, this Court is not impressed. The words used in the order undeniably indicate its final nature though it was stated to be an ad-interim injunction. In any event, such lapses are not expected of the Principal Civil Court of the district. Thus, the learned Principal District Judge, Ongole, clearly committed a gross error of jurisdiction by overstepping the limits prescribed by law for granting interim relief and acted in flagrant disregard of the rules of procedure and the principles of natural justice. Given these circumstances, this Court would be justified in entertaining this writ petition to prevent a miscarriage of justice.
In this context, Sri P.Govind Reddy, learned counsel, placed reliance on the observations of a Division Bench of this Court in ASHOK SHARDA V/s. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA, HYD7. These observations are as under:
"22. Before parting with the case, we consider it necessary to take notice of the disturbing phenomena that despite an unequivocal pronouncement of the Supreme Court in CCE v. Dunlop India Ltd., (1985) 1 SCC 260 = AIR 1985 SC 330, that the High Courts should not exercise jurisdiction under Article 226 of the Constitution of India for interlocutory interventions when the main matter is pending before a competent adjudicatory forum created under a special statute, the proceedings initiated by the Bank were partially stultified by interim order dated 31.12.2003. ...."
These observations however do not aid the learned counsel given the facts and circumstances of the case. A Writ of Certiorari would lie to correct the Courts and Tribunals subordinate to the High Court whenever they commit errors of jurisdiction, be it by assuming jurisdiction where there exists none or acting in excess of jurisdiction by overstepping the limits of the jurisdiction conferred. The facts obtaining unequivocally demonstrate that the Principal District Judge, Ongole, passed final orders in an interlocutory application without even hearing the other side. It is not for the parties to read down the order by stating that it was intended to be only an ad-interim order when the language utilized therein clearly speaks to the contrary. However, as the matter essentially needs to be addressed by the learned Principal District Judge, Ongole, in the OP, be it at the interlocutory stage or otherwise, this Court does not intend to venture into the merits of the matter.
The Writ Petition is accordingly disposed of reading down the interim order dated 21.03.2013 passed by the learned Principal District Judge, Ongole, in IA No.730 of 2013 in SROP No.1 of 2013 so that it shall be treated as an ex parte ad-interim order, which can be tested by the other side by filing a vacate stay petition. As the interim order granted by the learned Principal District Judge, Ongole, had the effect of reinstating the second respondent herein as the Pastor of the Church, despite his having demitted office as long back as on 07.06.2012, this Court is of the opinion that the interim suspension granted by this Court should continue pending the final disposal of the IA by the learned Principal District Judge, Ongole. Two weeks time is allowed to the petitioners herein from the date of receipt of a copy of this order to move a vacate stay petition in the SROP, failing which the interim order granted by this Court shall stand vacated. The learned Principal District Judge, Ongole, shall endeavour to dispose of the IA expeditiously. Needless to state but by way of abundant caution, it is made clear that this Court has not ventured any opinion on the merits of the matter and it shall be open to the learned Principal District Judge, Ongole, and the Courts below dealing with the civil suits to adjudicate the matters pending before them independently without being influenced by any observations made herein. Pending miscellaneous petitions in this writ petition shall stand closed in the light of this final order. No costs.
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SANJAY KUMAR, J.
dated:9-07-2013