Madras High Court
Pr.R.Edison Samuel vs Pr.Sam Sudhakar on 19 November, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/11/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.1305 of 2012 and M.P.(MD)Nos.1 to 3 of 2012 AND Contempt Petition (MD)No.793 of 2012: C.R.P.(PD)(MD)No.1305 of 2012: 1.Pr.R.Edison Samuel 2.Pr.K.Chelladurai 3.Pr.S.Amburose 4.Pr.Solomon Pandiaraj 5.Pr.John Wesley ... Petitioners/Respondents/ Defendants Vs. 1.Pr.Sam Sudhakar 2.Pr.Jayapal David 3.Stella Mary @ Mary Stella 4.Thangaraj 5.Thangadurai 6.Alexander Raj 7.Joe Samuel ... Respondents/Applicants/ Plaintiffs Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order dated 22.06.2012 in I.A.No.563 of 2012 in O.S.No.852 of 2012 on the file of the learned First Additional District Munsif, Tiruchirappalli. !For Petitioners ... Ms.Gladys Daniel for Mr.T.Pon Ramkumar ^For Respondents ... Mr.Veera Kathiravan * * * * * Contempt Petition (MD)No.793 of 2012: 1.Pr.Sam Sudhakar 2.Pr.Jayapal David 3.Stella Mary @ Mary Stella 4.Thangaraj 5.Thangadurai 6.Alexander Raj 7.Joe Samuel ... Petitioners/Respondents Vs. 1.Pr.R.Edison Samuel 2.Pr.K.Chelladurai 3.Pr.S.Amburose 4.Pr.Solomon Pandiaraj 5.Pr.John Wesley ... Contemnors/Petitioners Prayer Petition filed under Section 11 of the Contempt of Courts Act, to punish the contemnors/respondents for wilfully violating the order passed by this Court in M.P(MD)No.1 of 2012 in C.R.P.(PD)(MD)No.1305 of 2012, dated 13.07.2012. For Petitioners... Mr.Veera Kathiravan For Respondents... Ms.Gladys Daniel for Mr.T.Pon Ramkumar * * * * * :COMMON ORDER
C.R.P(PD)(MD)No.1305 of 2012 has been filed to get set aside the order dated 22.06.2012 passed in I.A.No.563 of 2012 in O.S.No.852 of 2012 on the file of the learned First Additional District Munsif, Tiruchirappalli.
2. Contempt Petition (MD)No.793 of 2012 has been filed to punish the contemnors/respondents for wilfully violating the order passed by this Court in M.P(MD)No.1 of 2012 in C.R.P.(PD)(MD)No.1305 of 2012, dated 13.07.2012.
3. Heard both sides.
4. A recapitulation and re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
(i) The respondents/plaintiffs filed the suit in O.S.No.852 of 2012 seeking the following reliefs:
"(a) for declaration to declare that the notification dated 20.05.2012 is null and void.
(b) for declaration to declare that the Executive Committee proceedings dated 14.05.2012 and 29.05.2012 are null and void and consequential relief of injunction restraining the defendants from giving effect to illegal notification dated 20.05.2012 in any manner or whatsoever.
(c) For the relief of declaration to declare that the convening of 6th Constituency Session to elect Office Bearers of the Executive Committee for the period 2012-2017 on 24.06.2012 at Otteri, Vellore or any time thereafter is null and void and for consequential relief of injunction restraining the defendants from proceeding with the appointment of nomination committee or conducting election in any manner or whatsoever."
(ii) They have also filed I.A.No.563 of 2012 seeking the following relief:
"For the reasons set out in the annexed affidavit, it is prayed that this Hon'ble Court may be pleased to pass an order of interim injunction restraining the defendants, their men, agents, servants or anybody claiming under them from convening the 6th Constituency Session by giving effect to the impugned notification dated 20.05.2012 and the invitation dated 12.06.2012 to conduct the election for the officers and members of Executive Committee of North Tamil Conference and to appoint nomination committee or any other committees for the period 2012-2017 on 24.06.2012 or any other date in any other manner and further be pleased to pass an ad-interim exparte order of injunction to the same effect till the disposal of this application and thus render justice."
(iii) After hearing both sides, the lower Court passed the following order, the operative portion of it, would run thus:
"In the result, temporary injunction is granted, thereby restraining the respondents, their men, agents, servants, anybody claiming under them, etc., from convening the 6th Constituency Session by giving effect to the notification dated 20.05.2012 and invitation dated 12.06.2012 for conducting the election for the office bearers and members of Executive Committee of North Tamil Conference and to appoint nomination committee or any other committees for the period 2012- 2017 to be held at Otteri, Vellore on 24.06.2012 or any other date or manner till the disposal of the suit;
The Executive Committee Meetings and resolutions dated 29.04.2012 and 22.05.2012 by the petitioners are set aside;
The 1st petitioner Sam Sudhakar is hereby directed preside over and convene a fresh Executive Committee Meeting, thereby giving an opportunity in writing to all the Executive Committee Members as on 12.04.2011, excluding 1 to
5 respondents and 9 members (who filed affidavits before the Hon'ble High Court in CRP.(PD)MDNo.199 of 2012), but including Executive Committee Members, who have challenged their transfer or termination orders passed by or under the president-ship of 1st respondent Edison Samuel in writing prior to this order; nominate or fill up full quorum of 21 Executive Members as per bye law; then nominate the Secretary; if necessary conduct all type of meetings; issue notice, notification, publication etc., for conducting the election for the office bearers for the period 2012-2017 as per bye law.
The said 1st petitioner Sam Sudhakar/elected President and his Office bearers shall continue and administer the North Tamil Conference of Seventh Day Adventists till election process is completed."
5. Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been filed under Article 227 of the Constitution of India, on various grounds.
6. The learned Counsel for the revision petitioners would echo the cri de coeur of her clients by placing reliance on the grounds of revision, the warp and woof of the same, would run thus:
(i) This is a singularly singular case, wherein it is not that the trial Court passed an order of injunction, but the Court overstepped its functions and went to the extent of finally deciding the case itself at the I.A., stage warranting interference in revision by invoking Article 227 of the Constitution of India. No doubt, as per Order 43 Rule 1 (r) of the Code of Civil Procedure, a Civil Miscellaneous Appeal could be filed as against the order of injunction, but this is not a case where such Civil Miscellaneous Appeal has to filed, but the jurisdiction of this Court under Article 227 of the Constitution of India, should be invoked and with that intention alone, this Civil Revision Petition has been filed.
(ii) A mere running of the eye over the order passed by the trial Court would portray and parody that he simply in that application for injunction, set aside the various earlier proceedings and declared the first respondent herein, namely Sam Sudhakar, as the person competent to continue in office even though he had nothing to do with the office in view of the fact that he had been dismissed from that office as early as on 27.01.2001. On the strength of such illegal order passed by the trial Court, he asserted as though his act of barging into the office even earlier to that order was justified.
(iii) The learned Counsel for the revision petitioners also cited the following decisions:
(i) Surya Dev Rai v. Ram Chander Rai and others reported in CDJ 2003 SC
704.
(ii) Kishore Kumar Khaitan and another v. Praveen Kumar Singh reported in CDJ 2006 SC 159.
(iii) Rt Rev Dr.V.Devasahyam, Bishop in Madras CSI and another v. D.Sahayadoss and 2 others reported in CDJ 2002 MHC 615.
(iv) Raja Khan v. U.P.Sunni Central Waqf Board and another reported in CDJ 2010 SC 1085.
(v) Britannia Industries Limited., rep. by its Authorized Signatory, Sanjay K.Handur v. Sulochana Cotton Spinning Mills Private Limited, rep. by its General Manager and another reported in CDJ 2011 MHC 5393.
(vi) Indian Evangelical Lutheran Church, rep. by its General Treasurer v. J.Rajesh and others reported in CDJ 2010 MHC 5990.
(vii) Chokkaiya Chettiar and others v. T.Sivakumaran and another reported in CDJ 2004 MHC 2081.
(viii) H.H.Righwani v. N.Venkat Ramani and others reported in CDJ 1999 MHC
682.
(ix) The Bank of Tokyo Mitsubishi Limited Mumbai v. Spartex Ceramics India Limited Chennai and others reported in CDJ 2007 MHC 1643.
(x) Dr.M.Thirunavukarasu v. Indian Psychiatric Society Tribunal rep. by its Chairman Prof. Shridhar Sharma, No.D127, Preeth vihar, Vikash Marg, New Delhi and others reported in CDJ 2007 MHC 5530.
(xi) Mohan Sharma v. The District Registrar (Administration), in the cadres of Assistant Inspector General of Registration and others reported in CDJ 2009 MHC 4008.
(xii) Thoothukudi Nazareth Diocese, rep. by its Treasurer Calwell Higher Secondary and another v. The Church of South India rep. by its General Secretary CSI Centre and another reported in CDJ 2009 MHC 3995.
(xiii) Inbaraj and another v. Kalunguvilai CMS Sudhanga Suvisesa Sabai, through its President, Rajiah Nadar and others reported in CDJ 2003 MHC 1944.
(xiv) Indiabulls Finance Services Limited and another v. M/s.Jubilee Plots and Housing Private Limited, rep. by its Managing Director and others reported in CDJ 2009 MHC 2539.
7. Per contra, in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the revision petitioners, the learned Counsel for the respondents, at the commencement of the proceedings itself, raised a legal objection as to the maintainability of this Civil Revision Petition by inviting the attention of this Court to Order 43 Rule 1 (r) of the Code of Civil Procedure. According to him, whatever might be the grievance of the revision petitioners, they should have approached the appellate Court by filing a Civil Miscellaneous Appeal and not filing this Civil Revision Petition. He would further submit that when an effective alternative remedy is available under law, the question of invoking the extraordinary jurisdiction is a well- neigh impossibility. He would also hasten to add that all the accusations and allegations made as against his client, Sam Sudhakar, are untenable and fraught with falsity and mendacity.
8. The point for consideration is as to whether this Civil Revision Petition in this factual matrix, is tenable?
The Point:
9. My mind is redolent and reminiscent of the provisions of Order 43 Rule 1 (r) of the Code of Civil Procedure and in that connection, I could fruitfully refer to the decision of this Court in Durairaj and others v. Venugopal and another reported in 2012-3-L.W. 807. Certain excerpts from it, would run thus:
"12. I would like to refer to sub section (2) of Section 115 of CPC, which would unambiguously and unequivocally highlight and spotlight the fact that if appeal lies in respect of a matter, then no revision could be entertained under Section 115 of CPC.
13. The warp and woof of the contention of the learned counsel for the respondent/plaintiff is to the effect that as against the order passed in the CMA, inasmuch as no further appeal is contemplated, the only remedy could be the one under Section 115 of CPC. I cannot countenance such a view for the reason, that had the legislators thought that that should be the legal position as canvassed by the learned counsel for the respondent/plaintiff, the legislators would have spelt out thus: "the revision under this Section [S.115 of CPC] shall not lie without exhausting the appeal remedy, if any," but that is not the legislative language and that was not the intention of the legislators as well. In Surya Devi's case (supra), the Hon'ble Apex Court glaringly and pellucidly shed light on the point that no revision under Section 115 of CPC would lie as against the order in Appeal. The legislators in their wisdom thought that in respect of certain matters appeal remedy if provided under law, then the parties concerned should get themselves satisfied with that remedy and once again, they cannot carve out their own dubious way of approaching the High Court under Section 115 of CPC. The mischief sought to be suppressed by the amendment of Section 115 of the Code of Civil Procedure is axiomatic and obvious and if the view of the counsel for the respondent/plaintiff is accepted, it would amount to opening the flood gate throwing to winds the spirit and essence of Section 115 of the Code of Civil Procedure.
14. The learned counsel for the respondent/plaintiff also inviting the attention of this Court to the proviso appended to sub Section (1) of Section 115 of CPC, would try to buttress and fortify his view, but an analysis of the said proviso would reveal and demonstrate that it is against his case. To maintain a revision under the said proviso, hypothetically the impugned interim order should be visualized thus: Gramatically "unreal past" situation in the said proviso is contemplated. If such order had been passed in his favour, whether it would have the effect of finally disposing of the suit or the proceedings before the lower court. Here, it is crystal clear that if the said order had been passed under Order IX Rule 13 of the Code of Civil Procedure by allowing the interlocutory application, the main suit itself would have got revived and the proceedings in the main suit would be in progress. The same position would be if the CMA had been allowed. Hence the said proviso cannot be pressed into service by the respondent/plaintiff in support of his proposition that only a revision under Section 115 of the Code of Civil Procedure would lie.
15. Needless to point out, that before 1976 amendment of CPC the position was different and the objects and reasons relating to amendment of Section 115 of the Code of Civil Procedure is worthy of being reproduced here under:
[Report of the Joint Committee-Gazette of India, Ext., dt.1-4-1976, Pt.II, S.2, p.804/10-11] "Amendments: Objects and Reasons.- Clause 43 (Original clause 45).- By clause 45 of the Bill, section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of article 227 of the Constitution, section 115 of the Code is no longer necessary. The Committee, however, feel that the remedy provided by article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under article 227 of the Constitution.
The Committee feel that the expression "case decided" should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a proviso and an Explanation to section 115.
[Statement of Objects and Reasons (Bill 1999).] Amendments: Objects and Reasons.-Clause 12.- Section 115 of the Code provides for revision by the High Court or an order or decision of any Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to the High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.
16. Wherefore, if the view of the learned counsel for the respondent/plaintiff is accepted, it would amount to rendering the very restrictive scope found embedded in Section 115 of CPC nugatory and otiose. As such, I am of the considered view that once appeal remedy is contemplated in respect of an order and the appeal remedy itself has been exhausted, then the question of invoking Section 115 of CPC would be a well-neigh impossibility.
* * * * *
20. It is quite obvious and axiomatic that when appeal remedy is contemplated, revision under Section 115 of CPC would not lie. Then the core question arises as to what would happen to a litigant who is really having some grievance if there is any gross perversity in the impugned order. At this juncture, I recollect certain excerpts from the decision of the Hon'ble Apex Court reported in 2005 (6) SCC 344 [Salem Advocate Bar Assn., T.N. v. Union of India]; certain excerpts from it would run thus:
"40. Section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to Section 115(1) of the Code before the amendment by Act 46 of 1999 read as under:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where"
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made." (emphasis supplied) Now, the aforesaid proviso has been substituted by the following proviso:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."
The aforesaid clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of omission made in Section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai holding that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court under Section 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled."
As such in certain circumstances, if at all the party concerned could make out a case under Article 227 of the Constitution of India, then he could petition the High Court invoking the said provision of law."
10. In the aforesaid decision, I referred to various precedents of the Honourable Apex Court. No doubt, the learned Counsel for the revision petitioners placing reliance on the precedents cited supra by her, would develop her arguments that even though an appeal remedy is contemplated, yet the factual matrix of this case warranted the filing of this Civil Revision Petition. According to her, when the lower Court passed the order in disregard of the law, then the question of approaching the appellate authority, would not arise and straightaway the jurisdiction of this Court under Article 227 of the Constitution of India, could be invoked.
11. The pith and marrow of the precedents cited by her would leave no doubt in the mind of this Court that when there is an effective appeal remedy is available, then the question of invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, would not arise. The extraordinary remedy has to be invoked extraordinarily and not ordinarily and if done so, casually the extraordinary remedy would loose its lustre.
12. Here, no doubt, the above excerpt from the order of the learned trial Judge, would demonstrate and display that he, while granting interim injunction pending suit, passed certain observations and directions, which are looked askance at by the revision petitioners.
13. At this juncture, I would like to refer to the decision of the Honourable Apex Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust reported in (2012) 8 Supreme Court Cases 706.
14. A plain reading of the aforesaid precedent would highlight and spotlight that even the appellate authority under the High Court, while entertaining the Civil Miscellaneous Appeal, could not only set aside the order of the lower Court but also even quash the very plaint itself if it is found that the said plaint was filed in abuse of the process of Court. When such huge and extraordinary power is recognised in the lower Courts, the question of High Court invoking its jurisdiction under Article 227 of the Constitution of India, bypassing the express appeal remedy, is not contemplated.
15. The current trend in invoking Article 227 of the Constitution of India, in the view of the Honourable Apex Court's precedents, is that no lower appellate Court should be bypassed and no litigant should be encouraged to pooh- pooh or belittle or slight or discard the appellate authority under any pretext or on any ground. Accordingly, if viewed, it is crystal clear that the effective remedy of filing Civil Miscellaneous Appeal could have been made use by the revision petitioners.
16. No doubt, because of certain observations and directions passed by the trial Court, while granting interim injunction, the revision petitioners looked askance at the order and approached this Court by filing this Civil Revision Petition.
17. Not to put too fine a point on it, a fortiori, this Civil Revision Petition should be held as one not maintainable and accordingly, it has to be dismissed. The point is answered accordingly.
18. In the result, this Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs. However, in view of the specific oral prayer made by the learned Counsel for the revision petitioners, certain protective observations and directions should be given as under:
(i) Time taken for prosecuting this Civil Revision Petition from the date of filing of this Civil Revision Petition till today, shall stand excluded for computing the period for preferring the Civil Miscellaneous Appeal before the appellate authority.
(ii) The Registry shall return the certified copies concerned to the revision petitioners even by tomorrow.
(iii) A week's time is granted to the revision petitioners to file the Civil Miscellaneous Appeal before the appellate authority, which shall be disposed of by the appellate authority concerned as expeditiously as possible, preferably within a period of one month from the date of filing of the appeal.
(iv) Till then, both sides shall maintain status quo.
19. Insofar as Contempt Petition (MD)No.793 of 2012 which emerged out of the order dated 13.07.2012 passed by this Court in this Civil Revision Petition, is concerned, this Court is of the view that the same has to be closed. Accordingly, the Contempt Petition shall also stand closed. No costs.
20. However, the learned Counsel for the petitioners in the contempt petition would make an extempore submission that liberty might be given to them to file an application for contempt for punishing the other side for contempt in view of the fact that they have violated the order passed in C.R.P.(PD)(MD)No.199 of 2012. It is open for them to file the contempt petition if so they are advised.
rsb To
1.The Court of First Additional District Munsif, Tiruchirappalli.