Andhra HC (Pre-Telangana)
St. John'S Church Education Society, ... vs The Church Of South India Trust ... on 1 May, 2003
Equivalent citations: 2003(5)ALT298
Author: Bilal Nazki
Bench: Bilal Nazki, G. Rohini
JUDGMENT Bilal Nazki, J.
1. Three suits were decided by the III-Addl. Judge, City Civil Court, Secunderabad by a common judgment. O.S. No. 521 of 1986 was decreed in favour of the plaintiffs, O.S. No. 1271 of 1984 and O.S. No. 613 of 1988 were dismissed. CCCA No. 11 of 1997 was filed by the defendants in O.S. No. 521 of 1986. Another appeal being AS No. 14 of 1997 was filed by the plaintiff in O.S. No. 1271 of 1984 before the Additional Chief Judge, City Civil Court, Secunderabad, which was transferred to this Court and numbered as Tr.CCCA No. 89 of 1998, as the judgment in both the cases is common. No appeal has been preferred against the judgment in O.S. No. 613 of 1988. The parties will hereinafter be referred to as 'plaintiffs' and 'defendants'.
2. In the first instance we take the case in O.S. No. 521 of 1986. This suit was filed for a declaration that the St. John's Church High School was started by the 3rd plaintiff and all the assets and properties of the said school vested in the 1st plaintiff and for possession. The plaintiffs contended that the Church of South India came into being by the union of the South India United Church, South India Province of the Methodist Church and certain Dioceses of the Anglican Church in South India in the year 1947. The Church of South India has its office in Madras, State of Tamilnadu and was spread over the States of Andhra Pradesh, Maharastra, Karnataka, Tamilnadu, Kerala and Sri Lanka. The Church of South India was divided into Dioceses and at present there were 21 Dioceses. The Dioceses of Medak who is the 2nd plaintiff is one of the 21 Dioceses. The affairs of the Church of South India were managed by a body called the Synod which is the supreme governing and legislative body of the Church of South India. The Synod is the final authority in all matters pertaining to the Church of South India. The Synod has the power to make rules and pass resolutions and take executive actions as may be necessary from time to time. Every Diocese is represented in the Synod. The Synod elects its own office bearers for every two years. The office bearers are the Moderator, Deputy Moderator, General Secretary and Treasurer. The Church of South India is governed by a constitution called the 'Constitution of Church of South India'. The 2nd plaintiff has jurisdiction over the civil districts of Adilabad, Nizamabad, Medak, Rangareddy and Hyderabad in Andhra Pradesh. Every Diocese has a Bishop as its head. The 2nd plaintiff-Diocese was divided into 3 District Church Councils (D.C.Cs.) viz., Godavari D.C.C., Medak D.C.C. and Town D.C.C. (Hyderabad and Secunderabad divisions). Each Diocese was divided into Pastorates. This is a primary unit at local levels and the affairs of the Pastorates are governed by the Pastorate Committee. The Pastorate committees consist of ex-officio members, elected members and nominated members. Presbyter in charge and all ordained Ministers and licensed Deacons Sisters of Church of South India are ex-officio members. The nominated members are nominated by the Bishop or his Commissary on the recommendations of the Presbyter in charge and the Bishop is entitled to nominate additional members up to a maximum of 50% of the elected members. The 1st plaintiff, according to the plaint, is a company which was registered under the Indian Companies Act, 1913 on 26.9.1947. One of the main objects of the 1st plaintiff was to act and allow its name to be used as a Trustee or agent whether alone or jointly with any person or persons for the Church of South India. It is also competent to acquire by all lawful means moveable and immoveable properties for the objects specified in the Memorandum of Association of the Church of South India Trust Association of the 1st plaintiff. All the properties, both moveable and immovable of the Church of South India, its various organs and various institutions run by the Church of South India and its various organs (Diocese and Pastorate committees) vest in the 1st plaintiff. The properties are administered by the 1st plaintiff in accordance with the Church of South India Synod Rules for the management of moveable and immoveable properties passed by the Synod working committee from time to time. This is the background in which the plaintiffs filed the suit.
3. Now coming to the facts giving rise to the filing of the suit are that the Pastorate committee of the 3rd plaintiff resolved on 21.8.1958 that Rev. Cannon Philip, the then Presbyter in charge be authorized to explore the possibilities of starting a Nursery and Kindergarten School in the premises of the parsonage. The Pastorate Committee discussed the matter of formation of St. John's Church School at its meeting held on 27.10.1960 and formed a sub-committee consisting of M/s. Beery (Convenor), J. Kurian and Prabhudas. The Pastorate Committee at its meeting held on 28.4.1961 considered the matter and approved the recommendation of the sub-committee to name the school as St. John's Church School. It was also resolved to accommodate the school in the ground floor of the parsonage. At the said meeting the Pastorate Committee designated the sub-committee as the School Managing Committee with powers to decide matters pertaining to the school and appointed seven individuals as members of the school managing committee. One of the said seven members of the committee was Rev. Gallagher who was Presbyter in charge, St. John's Church Pastorate. He was also the Chairman of the school managing committee. The school was formally opened on 12.6.1961 and the 3rd plaintiff was managing the affairs of the school through the school managing committee. The school was started in the building belonging to the Church of South India, which vested in the 1st plaintiff. Seven members nominated by the Pastorate committee as members of the school managing committee registered a society called the 'St. John's Church School Committee' on 23.5.1962 to manage the affairs of the school. The said society remained dormant and never functioned and the Pastorate committee of the 3rd plaintiff alone has all along been managing the affairs of the St. John's Church school through its school managing committee till the school remained as a primary and middle school. The affairs of the school were managed by the Board of Management after the school became a high school. According to the constitution and regulations of Medak Diocese, the Pastorate committees are entitled to manage the affairs of the primary and middle schools, but the management of the high school has to be done by the Diocese. The St. John's Church School became a High school in the year 1967. Thereafter the 2nd plaintiff addressed a letter to 3rd plaintiff to bring St. John's Church High School under the direct control of the 2nd plaintiff on par with other schools. The 3rd plaintiff wanted to form the St. John's Church Education Society, as the earlier society, the St. John's Church School Committee was defunct. The Pastorate committee of the 3rd plaintiff got a new constitution drafted and approved the same on 2.2.1979. At its meeting held on 29.9.1978 the Pastorate committee of the plaintiff requested Dr. B. Vijayam to draft a letter to the Secretary of the 1st plaintiff stating that the school society which was registered in 1961 became defunct and the Pastorate committee would prefer to register the Education Society and if the 1st plaintiff had any comments to be made, the same could be intimated. There were certain communications and no decision was taken till 2.2.1979 when the constitution was adopted after Dr. B. Vijayan gave a report of his discussions with the Secretary of the 1st plaintiff. A decision was taken to submit the constitution for registration. A meeting was held on 19.9.1978 whereat the Pastorate committee resolved to delete Clause 3 (i) of the Memorandum. The Pastorate committee of the 3rd plaintiff resolved that the constitution of St. John's Church Education Society-1st defendant- should come into effect from 1.7.1979, but it did not come into existence till 24.11.1980. The 2nd defendant, meanwhile, in collusion with then Presbyter in charge of the 3rd plaintiff got himself elected to the membership of the General Body of the 1st defendant by an election on 29.6.1980. The 2nd defendant also made it appear that he was nominated as Secretary of the 1st defendant on 4.7.1980 and got redesignated himself as Secretary and Correspondent with the blessings of the then Presbyter in charge and came into management of the St. John's Church High School with effect from 4.7.1980. The 2nd defendant thoroughly mismanaged the affairs of the said school. Then there were certain instances given in the plaint about the alleged mismanagement and the history of litigation. In September, 1980 the 2nd defendant terminated the services of four teachers and refused to reinstate them into service in spite of pursuation by the Church. The teachers staged a dharna and the students went on strike, therefore the intervention of the then Bishop in Medak was sought. He intervened and appointed an Ad hoc Committee to manage the affairs of the school on 19.10.1980. The Ad hoc Committee took over the management of the school on 19.10.1980 and issued proceedings reinstating the teachers who were terminated by the 2nd defendant. Neither the 1st defendant nor the 2nd defendant questioned the proceedings dt. 19.10.1980 of the then Bishop constituting the Ad hoc Committee to manage the affairs of the school. The Bishop had constituted the Ad hoc Committee in pursuance of a resolution of an emergency meeting of Diocesan working committee. The 2nd defendant set up two parishioners to file a suit to question the proceedings of the then Bishop appointing Ad hoc Committee in O.S. No. 3555 of 1980 on the file of the VIII Asst. Judge, City Civil Court, Hyderabad. The said suit, according to the plaintiffs, was filed at the instance of the 2nd defendant. The plaintiffs in the said suit contended that the school does not belong to Pastorate committee of the 3rd plaintiff, but it was started by a few Parishioners who registered a society called St. John's Church School committee on 23.5.1962 to manage the affairs of the school and the said society converted itself into the present 1st defendant society by amending the constitution by the requisite 2/3rd majority on 2.2.1979. This suit was dismissed. The plaintiffs were not parties to the said suit. The 1st defendant was also not a party to the said suit, but the interests of the 1st defendant were represented by the 2nd defendant who supported the case of the plaintiff in that suit. After that suit was dismissed, the Board of Management of the St. John's Church High School appointed by the Diocesan Council entered into the management of the St. John's school on 28.10.1984. But the 1st defendant represented by the 2nd defendant filed another suit being O.S. No. 1271 of 1984 on the file of the III-Addl. Judge, City Civil Court, Secunderabad for the same reliefs which were sought in O.S. No. 3555 of 1980 and he was able to obtain an interim injunction on 22.11.1984 against the 2nd plaintiff herein and dispossessed the management committee appointed by the Diocesan council of the 2nd plaintiff from the management of the St. John's Church High School. Therefore the 2nd plaintiff and others preferred C.M.A. No. 211 of 1984 against the said order. The 1st defendant contended that the school was started by Parishioners and the Parishioners had registered the St. John's Church School Committee on 23.5.1962 to manage the affairs of the school and the said society was converted into the 1st defendant society herein. The 1st defendant further contended that the St. John's Church School Committee managed the affairs of the school till 4.7.1980 and thereafter the 1st defendant managed the affairs of the school. In the light of these pleadings, it is the right of the Pastorate Committee to run the school through its managing committee and the ownership of the plaintiffs, which is in dispute. The plaintiffs in the present suit prayed for the following relief,
(a) For a declaration that the St. John's Church High School was started by the 3rd plaintiff, that all the assets and properties of the said school are vested in the 1st plaintiff and that the said school should come under the control and management of the 2nd plaintiff as per their constitution.
(b) For possession of the St. John's Church High School together with all its assets and properties.
(c) For a direction to the defendants to account for the income of the St. John's Church High School from 4.7.1980, when the 2nd defendant assumed the management of the said school.
(d) ......
(e) ......."
4. Written statement was filed by the defendants 1 and 2. The powers of the Church of South India have not been disputed, but it was disputed that the properties belonging to the St. John's High School vested in the Church of South India. It was also disputed that the Church of South India, Diocese of Medak and the Church of South India Trust Association had anything to do with the constitution of the St. John's High School. The school was opened and started on 12.6.1961 and it was never managed by the 3rd plaintiff. The School Managing Committee registered a society called 'St. John's Church School Committee' on 23.5.1962 to manage the affairs of the school. It was denied that the said society remained dormant or never functioned. The Pastorate committee never managed the affairs of the school at all or through its school managing committee or through its Board of Management after the school became a High school. The constitution and regulations of Medak Diocesan do not apply to the school. There were several efforts made by the 2nd plaintiff to take over the management of the school, which were defeated by the defendants. The school was never, right from its inception, under the management and control of the Church of South India Trust Association or Church of South India or Diocese of Medak.
5. On the basis of these pleadings the following issues were framed by the trial Court, (1) Whether the suit school is a Church school started by 3rd plaintiff?
(2) Whether the suit school should come under the control and management of the 2nd plaintiff as per its constitution and regulations?
(3) Whether the plaintiffs have no locus standi to maintain the suit?
(4) Whether all the assets and properties of the suit school are vested in the 1st plaintiff?
(5) Whether the plaintiffs are entitled to declaration prayed for?
(6) Whether the plaintiffs are entitled for possession of the suit school together with all assets and properties?
(7) Whether the defendants are liable to account for the income of suit school from 4.7.1980?
6. Second suit being O.S. No. 1271 of 1984 was filed by the defendant No. 1 in O.S. No. 521 of 1986 seeking a permanent injunction against the defendants from interfering with the management of St. John's Church High School by the plaintiff society.
7. Third suit being O.S. No. 613 of 1988 was also filed by Parishioners on behalf of St. John's Church Education Society against Church of South India, Medak Diocese for recovery of Rs.1,98,600/-. There is no appeal filed by either of the parties against the judgment in this suit.
8. The whole litigation is around the issue Nos. 1, 2 and 4 in O.S. No. 521 of 1986 which were decided by the trial Court in favour of the plaintiffs. If this Court comes to the conclusion that the suit school was a Church school established and run by 3rd plaintiff, then the plaintiffs are entitled to a decree sought for and if this Court comes to the conclusion that the school was constituted and managed by the defendants, then the suit, of course, has to be dismissed. There are other legal pleas taken during the course of hearing which will be taken care of after recording a finding on the above three issues.
9. The plaintiffs examined P.W.1 and the defendants also examined two witnesses being D.Ws. 1 and 2. Before going to their evidence, it may be pertinent to mention that the suit being O.S. No. 3555 of 1980 was decided on 7.2.1983 i.e., during the pendency of the present suits. The suit O.S. No. 3555 of 1980 was filed by Parishioners on behalf of St. John's Church Education Society in which the 2nd defendant herein was defendant No. 8. It was dismissed by the trial Court. Two appeals being A.S. Nos. 41 and 44 of 1983 were filed before the Addl. Chief Judge, City Civil Court, Hyderabad who remanded the matter back to the trial Court. Against this judgment, several appeals being C.M.A. Nos. 434, 435, 521, 751, and 833 of 1984 were filed before the High Court which were decided on 19.10.1984. The 1st defendant-society in O.S. No. 521 of 1986 was not a party to the suit O.S. No. 3555 of 1980, but 2nd defendant in O.S. No. 521 of 1986 was a defendant No. 8 to the suit O.S. No. 3555 of 1980. A Division Bench of this Court in C.M.A. No. 434 of 1984 and batch considered the same question and it is seen from the judgment of the Division Bench that the trial Court framed the following issues, (1) Have the plaintiffs locus standi to file the suit?
(2) Are the plaintiffs entitled to declaration claimed in the suit?
(3) Are the plaintiffs entitled to injunction claimed in the suit?
10. The learned Addl. Chief Judge, while disposing of the appeals also formulated similar questions. The original registration of the 1st defendant-society in the present suit was claimed under a registration certificate which was also subject matter of consideration before the High Court in the appeals to which a reference is being made. On the basis of this document alone the defendants' case is that the school was established in the year 1961. The finding of the Division Bench is, "Then, we see from Ex.B75 the Minutes Book of the Pastorate Committee that as along back as on 22.4.1958 the Pastorate Committee asked Mr. Smith and Mr. Berry, two of its members, to explore the possibility of establishing a school and on 21.8.1958, a sub-committee was constituted with Canon Philip, Mr. Dunham, Mr. Smith, Mr. Berry and Mr. D'Phraser to explore the possibilities to establish a school for Anglo-Indians. On 13.4.1961, the sub-committee suggested to name the school as St. John's Church School. On 28.4.1961, the Pastorate Committee designated the sub-committee as School Managing Committee with powers to decide the matters pertaining to the school and nominated the school committee and it is this school committee that subsequently registered the society as per Ex.B17 with themselves as members. The school was ultimately opened on 12th June, 1961 formally with a prayer. Therefore, these facts unmistakably establish that it is not the Parishioners that established the school but it is the Pastorate Committee and the School Managing Committee nominated by the Pastorate Committee that established the school."
11. Another defence was taken in the present suit and also in that suit O.S. No. 3555 of 1980 which had been filed on the ground that the constitution of 1962 was amended on 2.2.1979. The documents produced in that suit were the same documents which were relied on in the present suit. The Division Bench held, "It is the case of the 8th defendant that the Constitution of 1962 has been amended on 2.2.1979. But, we see from Ex.B74 which contains the minutes of the Pastorate Committee that created the Education Society that Education Society is a new body under a new Constitution and the same is not an amendment of the 1962 constitution. The constitution of 1962 never came into operation."
12. Finally the Division Bench held, "As a matter of fact, the school does not appear to have been run at any time as per the rules and bye-laws of Ex.B17 Constitution. Ex.B20 Constitution is out and out an illegal one. Therefore, the question of the school being run under Ex.B21, legally, does not arise."
13. We have gone through this judgment and it is not disputed by the learned counsel for the appellants that this judgment categorically held that the Parishioners had not established the school, but the school had been established by the Pastorate Committee and a school managing committee had been appointed by the Pastorate Committee and it was the school managing committee which was managing and running the school. This judgment further held that although a society had been registered in the year 1962, but it had never functioned. The Division Bench also found that there was not a legal constitution. This judgment has become final and if this judgment is taken as binding on the parties before us, then no issue would remain to be settled by this Court.
14. The learned counsel for the appellants, however, submits that although the 2nd defendant was a party to the earlier suit as defendant No. 8, but the 1st defendant-society not a party, therefore it would not be a case of res judicata. The judgment passed in C.M.A. No. 434 of 1984 and batch was challenged in the Supreme Court. The Supreme Court has passed the following order, "In view of the fact that the Society has now filed a suit which raises, substantially, the very same questions which arose in this suit, this special leave petition need not be entertained. The Court which is seized of the Society's suit will decide the questions arising in that suit without construing this order as an expression of opinion on the merits of any of the questions involved in this suit, namely, suit No. O.S. 3555 of 1980, City Civil Court, Hyderabad.
The special leave petition will stand disposed of in terms of this order."
15. In view of this order of the Supreme Court, the learned counsel for the appellants submits that the questions were left open. We do not agree with such a contention. Even earlier a Division Bench of this Court, while considering C.M.A. No. 1129 of 1985 in CMA No. 434 of 1984, had not accepted such a contention. The Supreme Court had taken note of the fact that the society had filed a suit and therefore it did not interfere in the matter. The Supreme Court held that the Court which was seized of the Society's suit will decide the questions arising in that suit without construing the order of the Supreme Court as an expression of opinion on the merits of any of the questions involved in the suit being O.S. No. 3555 of 1980. That does not, by any stretch of imagination, mean that the findings of the Division Bench of this Court in appeals arising out of O.S. No. 3555 of 1980 were set aside. The findings remained there and had became final.
16. Now the question is whether the findings of the Division Bench of this Court in C.M.A. No. 434 of 1984 and batch would have any effect on the present appeals. The learned counsel for the appellants submits, as has been pointed out earlier, that it is not a case within the meaning of Section 11 of the Code of Civil Procedure and the rules of res judicata would not apply. We agree with him because the 1st defendant-society was not a party to the suit O.S. No. 3555 of 1980, although the 2nd defendant in O.S. No. 521 of 1986 was a party to the said suit as defendant No. 8. The only question which will have to be settled is whether the findings of the High Court are binding, not because it is res judicata, but it is conclusive evidence of the rights of the parties. In this connection the learned counsel for the parties relied on many judgments, one of them being a judgment of the Supreme Court reported in Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, 1.. Before coming to the law laid down by the Supreme Court in this judgment, it is necessary to refer to the facts in which that case was filed. The appellant before the Supreme Court was Tirumala Tirupati Devasthanams (T.T.D.). The T.T.D. was the defendant in O.S. No. 51 of 1968 filed before the Court of the District Munsif at Tirupati. The suit had been filed by the plaintiff against the TTD for grant of permanent injunction in respect of land measuring Ac.2-29 guntas in Tirumala Hills. The trial Court dismissed the suit holding that the plaintiff had proved neither title nor possession and the plaintiff had trespassed into the property in October, 1967 and as such was not entitled to permanent injunction against the TTD. The plaintiff filed an appeal. The appellate Court upheld the decree of the trial Court dismissing the suit. A second appeal was taken in the High Court. The High Court by its judgment dt. 24.4.1987 reversed the decree passed by the trial Court and the appellate Court and granted a decree for possession in favour of the plaintiff observing that the plaintiff had rights over the property in the nature of the possessory title and he had been dispossessed on 30.8.1969 and he could recover the possession from the TTD unless the TTD was able to prove its title. It may be pointed out also that the trial Court and also the appellate Court had relied upon the judgment of the Sub-Court, Chittoor dated 15.6.1942 rendered in the earlier suit being O.S. No. 51 of 1937 which was filed by the TTD against Hathiramji Mutt where the Court had declared that the TTD had title over the property. The title was declared on the basis of certain title deeds. The question before the Supreme Court was whether the title had been declared by the competent Court in favour of the TTD in the year 1942 in O.S. No. 51 of 1937 and what would be the effect of this judgment on the suit, which was filed for permanent injunction by the respondent. The Supreme Court considered this matter by framing three questions and one of them being, "Whether the judgment in O.S. No. 51 of 1937, Sub-Court, Chittoor dated 15.6.1942 declaring the title of the TTD, was admissible and could be relied upon by the TTD as evidence in the present case, even though present plaintiff was not a party to O.S. No. 51 of 1937?"
17. The same contention was raised before the Supreme Court that the plaintiff was not a party to O.S. No. 51 of 1937, therefore the judgment rendered in favour of the TTD in that suit was not admissible in evidence in the second suit. The Supreme Court repelled this contention with the following observations,
9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango, , speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B. K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a 'transaction' in which a right to property was 'asserted' and 'recognised'. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1992) ILR 29 Cal 190 (198) (PC) that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, (1895) ILR 22 Cal 533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157 : 61 IA 286.
10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent-plaintiff and hold that the TTD could rely on the judgment in OS 51/37 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit. Point No. 1 is held accordingly against the respondent."
18. The learned counsel for the appellants, however, relied on a judgment of the Supreme Court reported in State of Bihar Vs. Radha Krishna Singh, 2.. This is a judgment of 3-Judge Bench. Considering the question of admissibility of an earlier judgment, the Supreme Court held in para 121, "121. Some Courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of S. 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of Sections 40 to 42, it must fulfill the conditions of S. 43 otherwise it cannot be relevant under S. 13 of the Evidence Act. The words "other provisions of this Act" cannot cover S. 13 because this section does not deal with judgments at all."
19. Again in para-133 the Supreme Court said, "133. The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiffs-respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose mentioned above, they do not take us anywhere so as to prove the plaintiffs' case."
20. So these two judgments of the Supreme Court are in conflict with each other. The second judgment is by a smaller Bench than the earlier Bench. Now which judgment would be binding on us would be decided if a need arises after deciding the issues on merits.
21. Now let us come to the defendants' case first in O.S. No. 521 of 1986, 1st defendant was also plaintiff in O.S. No. 1271 of 1984. Three suits were, in fact, consolidated. Statement of the 2nd defendant was recorded as D.W.1. In his statement he stated that he was a secretary and correspondent of St. John's Church High School, Secunderabad. It is situated at 24.D, St. John's road near Sangeet Talkies, Secunderabad. The school was started in June, 1961. Originally the idea of establishing the school was entertained by some Anglo-Indian members of St. John's Church. There was an old school known as St. John's Brigade School. The Anglo-Indian Community, Secunderabad was managing the school. That school had been started somewhere in 1859 and was handed over to the then Government of Hyderabad in 1947. That school is now known as St. John's Govt. Zilla Parishad College for girls. The old school had been established by the Anglo Indian community and the Anglo Indians of St. John's Church made several attempts to get back the old St. John's Brigade School, but without any success. The Anglo Indians then decided to start a school for the benefit of their community. The Pastorate Committee took up the issue. The Pastorate Committee appointed a sub-committee for the purpose of starting the school and decided that this sub-committee should be deemed to be the Managing Committee of the School with full powers to look after the affairs of the school. He submitted that this aspect was reflected in the minutes of the Pastorate Committee of the relevant years and these minutes were filed by the plaintiffs. The school was started by St. John's Church School Committee in 1961. Ex.B19 was the copy of notice dt. 8.6.1961 announcing the opening of the school. One Mr. Johnson Beery was founder secretary of the school who signed Ex.B19 notice. He was now living in United States of America at Texas. The Managing Committee of the school maintained the minutes of their meetings which were filed in the Court. He exhibited Ex.B20 as the minutes book of managing committee for the years 1961 to 1973, Ex.B21 as the minutes book for the years 1973 to 1980 and Ex.B22 as the minutes book for the subsequent years to 1980. He also admitted that a loan was taken from the Pastorate Committee of Rs.3,000/- for starting the school. Subsequently the loan was repaid. He also admitted that the school was in the premises of St. John's Church situated at 24/D, St. John's road and known as Parsonage. The managing committee of the school decided in one of its earlier meetings to pay a monthly rent of Rs.300/- for the building. This rent was regularly paid and it was enhanced to Rs.3,500/-. Up to 1963 the school was running with classes from K.G., and first to 4th. In 1963 5th and 6th classes were added and in 1965 7th and 8th classes were added and the school became a High School in 1966. Mr. Gallagher was the first principal of the school and the school managing committee approved her appointment. The school managing committee decided to form a society and got prepared a constitution for the governance of the school and got this constitution registered as St. John's Church School committee under the public societies Registration Act, with Registration No. 62/62. Ex.B23 was the certified copy of the memorandum. Ex.B24 was the certified copy of the rules and regulations and Ex.B25 was the certified copy of certificate of registration. Rev. Gallagher who was the Presbyter-in-charge of St. John's Church was one of the persons who signed Ex.B23. The constitution Ex.B24 provided two organs to manage and administer the school. The first organ was known as St. John's Church Pastorate Committee and the second organ was known as St. John's Church School Committee Managing Committee. Ex.B24 also provided for the powers and functions of the Pastorate Committee as an organ for managing the school. On page 63 of Ex.B49 the functions of the Pastorate Committee were mentioned. Right from its inception the managing committee of the school was managing and administering the school under the provisions of Ex.B24. The St. John's Church School was never a Diocesan school. Exs. A1 and A49 provide rules and regulations for the management of the Diocesan schools. Under Ex.B20 at the meeting held on 24.4.961 Mrs. Gallagher was made the principal of the school by the managing committee and Mr. K.M. George was offered the post of Head Master of the school. On 24.4.1962 Mr. K.M. George was appointed as the principal of the school. On 2.11.1965 under Ex.B20 the school managing committee invited Mr. A.P. Rajarathnam to take up the post of Head Master. Under volume-II of Ex.B21 Lt. Col. Gangoli was appointed on 13.3.1976 as principal of the St. John's Church High School by the managing committee and at the same meeting Miss. Prince was appointed as the Head Mistress of the lower primary section to take charge from 1.6.1976. On 19.11.1977 under Ex.B21 Lt. Col. J.P.G. King was appointed as Head Master of Middle and High School. Mr. Lazarus under Ex.B20 was appointed as correspondent and Treasurer on 1.5.1973. Then he has given the history of the cases which were pending in different Courts, which were decided. He submitted that the St. John's Church High School was always managed by the society. The society was registered in 1962 and it was in possession and administration of St. John's Church High School. Except for some periods when the Bishop's committee forcibly took over the administration with their muscle power, there was no control by the Diocesan authority over the school. The Diocesan was aware that the school was managed by the society always till 1980. Now some of the admissions which were made in the statement of 2nd defendant are important. Some of them have been pointed out hereinabove and some of them have been referred to by the learned counsel for the respondents in their written submissions also. They are,
(a) "On 27.10.1960 as per Ex.A10 resolution, the St. John's Pastorate Committee formed a sub-committee to work out the details of the St. John's School and that sub-committee consisted of three members including D.W.2. As per Ex.A11 resolution (28.4.1961), the St. John's Pastorate Committee met and designated the earlier sub-committee as the School Managing Committee with 7 members. As per that resolution, Ex.A11 the then Presbyter-in-charge namely Rev. Gallagher was the Chairman and D.W.2 was the Secretary-cum-Treasurer. Under this same resolution, Ex.A11, Mrs. Gallagher, the wife of the Presbyter-in-charge was appointed and approved as principal of the school. Under the same resolution Ex.A11 the Pastorate Committee decided to loan a sum of Rs.3,000/- to the suit school. (Vol. II pages 58 and 59).
(b) The elementary schools are being run by the Pastorate Committee of the Church. As per the constitution (M.D.C.R.) Medak Diocesan and Regulation when the elementary school is elevated as High school it is being run by the management committee itself (Vol. VI pages 16 and 16a)
(c) As per the registered constitution of the school the committee was appointed by the Pastorate Committee. It is not true to say that the Medak Diocese made attempts to get the school under its control when it was elevated as High School. The witness volunteers, such attempts were made only in the year 1976.
(d) The auditors were submitting the financial statements of St. John's Church School to the Medak Diocese under Exs.A27 to A30 from 1965 to 1979.
(e) Ex.A17 is the certified copy of the constitution of the Education Society got registered by me. It is not true to suggest that Ex.A17 is not the Constitution which was adopted by the Pastorate Committee under Ex.B34. It is true that some amendments are there in Ex.A17. Some amendments are made by the Pastorate Committee. It is not true to suggest that the Pastorate Committee made some amendments adopted by it under Ex.B34 resolution. Thee were no amendments for the constitution of Education Society after Ex.B34. The Pastorate Committee amended the draft constitution prior to its final approval under Ex.B34. Under Ex.A15 there were two amendments made to the original constitution of the Education Society. As per Ex.A18, the Pastorate Committee resolved that only one member from each family is eligible to vote for the Education Society. Ex.A17 does not contain any amendments, spoken to by me. It is not true to suggest that the original constitution adopted under Ex.B34 resolution was suppressed by me and some other documents has been brought into existence by me under Ex.A17. After Ex.A17 there were few amendments. It is a fact that I did not follow the procedure prescribed in para 9 of Ex.A17, because the procedure laid down in para (c) of Ex.A17 was followed. It is not true to suggest that the para referred by me is nothing to do with the amendments as shown in para 9 of Ex.A17. It is fact, as per para 8 of Ex.A17, all the properties, and the future acquisitions made by the Society shall vest with the first plaintiff. I did not follow the procedure laid down under section 9 of the Hyderabd Public Societies Act. The financial statements under Exs.A27 to A30 show that the St. John's Church High School is headed by C.S.I. Diocese of Medak (Vol. II pages 60 and 61).
(f) As per Ex.A34 the accounts of the suit school were being audited every year and sent to the office of the Medak Diocese. I signed Ex.A34 minutes.
(g) St. John's Church and Wesley Church are primary units of Medak Diocese. Diocese means a religious district (Vol. II pages 69 and 70).
(h) He further stated at page 70 as under:
There is no provision to show that the St. John's Church was treated on a different plane, whereas all the other churches became integral part of Medak Diocese"
22. Ex.A10 are the minutes of the St. John's Church Pastorate Committee meeting held on 27.10.1960. It discussed various things and amongst them, the formation of St. John's school was discussed. Chairman suggested that the formation of a sub-committee to work out the details. It was considered to take up the matter with DCC and obtained their formal approval. The sub-committee of M/s. Berry (Convenor), J. Kurion and Prabhudas was formed. In Ex.A11 which are the minutes of the meeting held on 28.4.1961 the following was mentioned, "The Convenor of the proposed school briefly gave the various aspects regarding the school and the progress made by the sub-committee. The school committee's recommendation to name the school as "St. John's Church School" was approved.
The appointment of Mrs. Gallagher as the honorary principal and her acceptance was very much appreciated and approved.
The accommodation required for the school was discussed. It was decided to use the ground floor of the parsonage. Rev. Gallagher to approach Rev. Durrani to move to the orphanage dormitory as a temporary measure. Rev. Rowlands to be provided with alternative accommodation.
The committee decided to take further steps to acquire the accommodation which at present is occupied by Mr. Machaya.
The school sub-committee was designated as the school managing committee with powers to decide matters pertaining to the school."
23. Then the names of the nominated school committee members are given.
"Other matters regarding the starting of the school were discussed and it was agreed to let the school managing committee handle the same.
The Pastorate Committee decided to loan the school Rs.3,000/- payable within 3 years. The committee approved the collection of donations in aid of the school."
24. Though the 2nd defendant stated in his statement that Rs.3,000/- was given as a loan and it was repaid, but there was no evidence produced. On the other hand, he admitted the resolution as contained in Ex.A11 which shows that this amount of Rs.3,000/- was initially granted to the school as a donation. The documents Exs.A10 and A11 conclusively show that the school was established by the Pastorate Committee of the St. John's Church and the managing committee appointed by the Pastorate Committee was, in fact, the same sub-committee which had been established in order to establish the school.
25. Then let us have a look on Ex.A12, which was a memorandum of St. John's Church school committee, dt. 16.5.1962. The aims and objects are given, then the names of the persons are given who are responsible to run the affairs of the St. John's Church School committee. This Ex.A12 contained an annexure of rules and regulations of the St. John's Church School Committee. According to these rules and regulations, there were two organs of the school committee, one was St. John's Church Pastorate Committee and another was St. John's School Committee Managing Committee. The functions of the two organs are mentioned in the following terms, "(i) ST. JOHN'S CHURCH PASTORATE COMMITTEE -hereinafter referred to as the Pastorate Committee, is composed of members elected by the St. John's Parishioners and nominated by the Bishop as provided for in the Constitution of the Diocese of Medak of the Church of South India. The duties of the Pastorate Committee towards the St. John's School Committee shall be as follows:-
(a) To propose and elect the school committee.
(b) To approve the activities of the school committee, including the expenditure statement of previous year and pass budget for ensuing year.
(c) To chalk out programmes for the furtherance of the aims and objects of the school committee, and to be the link between the school committee and the Diocese of the Church of South India.
(ii) ST. JOHN'S CHURCH SCHOOL COMMITTEE MANAGING COMMITTEE- hereinafter referred to as the Managing Committee shall be the Executive body of the school.
26. The said managing committee shall comprise of the following officer bears and members,
1. Chairman-cum-Manager - Ex-Officio Presbyter of the St. John's Church.
2. Hony. Secretary-cum-Hony. Treasurer.
3 to 7 Four members.
8. Principal - Ex-Officio.
9. Head Master - Ex-Officio.
27. After discussion of the members, the duties of the Chairman-cum-Manager have been laid down. Amongst the duties, one of the duties laid down is, "he shall preside over and conduct the Pastorate Committee and Managing Committee meetings and shall carry out the decisions of all such meetings".
28. The duties of the Honorary Secretary-cum-Treasurer have also been laid down which include, "He shall place all matters before the Managing Committee and the Annual Report of progress before the Pastorate Committee."
29. Under the head of Finances & Funds the managing committee has been authorized to seek loans from Pastorate Committee or from Diocese or other sources. Under Rule 8 of the rules and regulations of the St. John's school committee, it was laid down, "In case the Managing Committee finds itself unable to continue the school, it may wind it up in the following manner,
(a) A resolution for winding up the school committee shall be passed by the Managing Committee and ratified by 3/4th majority of the Pastorate Committee.
(b) The properties and funds of the school committee that will remain after satisfaction of liabilities, shall be transferred to the Pastorate Committee. The same shall be utilized at the discretion of the Pastorate Committee for some other educational use in the Diocese of the Church of South India."
30. This part of Ex.A12 makes certain things clear that the school had to be managed by the St. John's School Managing Committee, which was appointed by the Pastorate Committee. The relevant paras of the rules have been mentioned hereinabove. At the risk of repetition it may be noted that the Honorary Secretary was supposed to give an annual report of the progress of the school to the Pastorate Committee. The Chairman of the committee had to preside over and conduct the Pastorate Committee and also managing committee meetings. There could not be winding up of the committee except with a resolution passed by the managing committee and ratified by the 3/4th of the Pastorate Committee. So the managing committee which was created for managing the school could not be wound up unless a resolution of the winding up was passed by the managing committee and ratified by the 3/4th majority of the Pastorate Committee. Even after winding up, the funds and assets would remain with the managing committee and after satisfaction of liabilities they had to be reverted back to the Pastorate Committee which was entitled to use them for some other educational institutions in the Diocese of the Church of South India. Therefore these documents conclusively prove that the school was established by the Pastorate Committee and not by the defendants in O.S. No. 521 of 1986. The 1st defendant society was a society which was created by the Pastorate Committee itself for managing the school and it was always under the control of the Pastorate Committee. Even the orders of appointment with respect to Principals, Head Masters were passed by this Pastorate Committee.
31. Any subsequent changes made in the managing committee either under the constitution or otherwise would not be material because they could have not been effected without the approval of the Pastorate Committee in terms of annexure to Ex.A12. Besides when a managing committee which was registered as a society, there was no question of registration of another society without winding up of the earlier committee and that earlier committee could only be wound up in terms of the rules and regulations framed earlier which had laid down that winding up could only be done with the approval of 3/4th majority of the Pastorate Committee. Besides this, there is no evidence on record to show that at any point of time the appellants were appointing persons or managing the affairs of the school. At one point of time when the managing committee had terminated the services of four teachers, the Bishop had taken the matter into his own hands and formed an Ad hoc committee which revoked those termination orders. Even at that stage, the 1st defendant-society had not gone to the Court, but some other individuals went to the Court and findings were given against them to which a reference was given hereinabove. Had the 1st defendant-society been managing the affairs of the school, it would certainly have challenged the orders of the Bishop while he formed an Ad hoc committee. It even submitted to the jurisdiction of the Bishop and did not protest when the managing committee was superseded and an Ad hoc committee was appointed. All the principals and other staff appointed to the school were always appointed by the plaintiffs in O.S. No. 521 of 1986 as has been shown in the voluminous record produced by the parties before the Court. It is also an admitted fact that the school was established in a building which was owned by the 1st plaintiff. It was, however, contended that the 1st defendant-society was running the school in the rented premises, but there is no evidence to show that the rent was ever paid. It may also be worthwhile to mention that the third suit being O.S. No. 613 of 1988 was filed by the same society for recovery of an amount of Rs.1,98,600/- from the Church of South India which is the 1st plaintiff in O.S. No. 521 of 1986. The case of the society was that the then Governing General Body of the St. John's Church High School deposited two sums of Rs.60,000/- each aggregating Rs.1,20,000/- with the defendant, first deposit was made on 1.9.1978 and the second deposit was made on 31.10.1979. The defendant agreed to pay interest @ 11% P.A. on the said deposits and paid interest from time to time up to the end of 31.3.1982. Thereafter the defendant failed to pay the interest. This suit was laid for recovery of Rs.1,98,600/-. The suit was dismissed and no appeal has been filed against that judgment and decree.
32. There is documentary evidence to show that the school was established and managed all along by the managing committee which was appointed by the Pastorate Committee and the managing committee remained under the control of the Pastorate Committee. Therefore, in our view, the findings of the trial Court, even without taking into consideration the judgment of the High Court in the earlier appeals, could not be interfered with in regard to the question as to who had established the school and who was managing the school.
33. The other contention which was raised before us by the learned counsel for the appellants with regard to the limitation. There is no evidence on record to come to the conclusion that the suit was barred by limitation. This issue had not been framed, although a plea was taken in the written statement. The defendants should have agitated the matter of getting an issue framed. Even otherwise on the basis of the record we have not been shown as to how the suit was barred by limitation. In the memorandum of appeal it was stated that the school was under the management of the 1st defendant-society and the suit was filed 25 years after the establishment of the school. But in view of our findings given hereinabove that the school was always under the management of the 3rd plaintiff, therefore the question of limitation does not arise.
34. Now coming to the question, whether an earlier judgment in appeal would be taken as evidence or not, in view of the two contradictory judgments of the Supreme Court mentioned hereinabove, we find that it may not be necessary in the present case to decide such a matter because on merits we have found that the appellants have no case.
35. For all the reasons given hereinabove, the appeal CCCA No. 11 of 1997 filed by the defendants in O.S. No. 521 of 1986 is dismissed with costs.
36. Another appeal being Tr.CCCA No. 89 of 1998 was filed by the St. John's Church Education Society-plaintiff in O.S. No. 1271 of 1984- seeking an injunction. In view of our judgment in CCCA No. 11 of 1997 this appeal is also dismissed with costs.