Madras High Court
The Tamil Evangelical Lutheran Church ... vs Rt.Rev.D.Daniel Jayaraj on 19 March, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.(MD)No.18 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.03.2021
PRONOUNCED ON : 19.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.18 of 2021
and
C.M.P.(MD)Nos.655 to 659, 1926, 1927, 1929 and 2218 of 2021
1.The Tamil Evangelical Lutheran Church (T.E.L.C.)
Rep.by its Secretary A.Mehar Antony,
having office at Post Box No.86, TELC,
Central Office, Tranquebar House,
Melaputhur, Tiruchirapalli-1.
2.A.Maher Antony ..Appellants / Respondents 1 and 3 /
plaintiffs 1 and 3
Vs.
1.Rt.Rev.D.Daniel Jayaraj,
S/o.Thiru Devasagayam,
Bishop of Tranquebar Church and
President of Tamil Evangelical Lutheran Church,
Having office at Bishop House,
TELC Compound, Melapudur,
Tiruchirappalli. ..1st Respondent/Petitioner/1st Defendant
2.Rev.S.Saumel Abraham
3.Rev.Dr.J.G.Jacob Sundar Singh
4.D.Thangapazham
5.K.Albert Inbaraj
6.Benjamin Jeyaraj .. Respondents 2 to 6/Respondents 2 & 4 -7/
Plaintiffs 2 and 4 to 7
7.Rev.J.Chelladurai
8.D.Wilfred Daniel ..Respondents 7 & 8/Respondents 8 & 9/
Defendants 2 & 3
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http://www.judis.nic.in
A.S.(MD)No.18 of 2021
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure
Code r/w Order 41 Rule 1 of Civil Procedure Code, against the judgment
and decree dated 21.12.2020 passed in I.A.No.2 of 2020 in O.S.No.253 of
2020 by the learned I Additional District Judge (PCR), Tiruchirappalli
rejecting the plaint.
For Appellants : Mr.P.H.Aravindh Pandian
Senior Counsel
for Mr.Duraikkan S.Philip
For R1 : Mr.Isaac Mohanlal
Senior Counsel
For R2 : Mr.T.Lajapathi Roy
For R3 & R4 : Mr.S.Vijayashankar
For R6 : Mr.R.M.Maheshkumaravel
For R7 & R8 : Mr.S.Meenakshi Sundaram
senior counsel for M/s.S.Xavier Rajini
For R5 : Mr.G.Thalaimutharasu
For R2 : No Appearance
JUDGMENT
Aggrieved over the rejection of the plaint filed under Order 7 Rule 11 of the Civil Procedure Code on the ground that there is no cause of action and the action taken under Church Council Rules, cannot be questioned, the present appeal has been filed.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
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3.The brief facts, leading to the filing of this Appeal Suit, are as follows:-
The first defendant is the Bishop and sued in the present litigation in his individual capacity. It is the case of the plaintiff that the first plaintiff is the Tamil Evangelical Lutheran Church (for the sake of brevity hereinafter it shall be referred as TELC), which is a Society registered under the Societies Registration Act, 1860. With regard to the dispute arose between the then Bishop /President of TELC and the Church Council, several cases were filed. The Hon'ble Supreme Court appointed Mr.Justice K.Venkatraman, Rtrd., as Judge Administrator to administer TELC and to conduct the election of the members of the Church Council for the triennium 2019-2022. Accordingly, the Administrator conducted the elections and the first defendant was elected as a Bishop of Tranquebar for TELC. The plaintiffs 2 to 4 and the defendants 2 and 3 were elected as a Members of the Church council for the triennium 2019-22 in election held on 07.09.2019 and installed on 11.09.2019. The third plaintiff has been elected as Secretary of the Church Council for the said triennium and the same was recorded before the Hon'ble Supreme Court vide its order dated 17.09.2019 in S.L.P.No.13243 of 2017.
(ii) The first defendant attains the age of 65 years on 05.03.2020 itself. On superannuation of the Bishop/President of TELC as per the Rule 3/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 161 of the Church Rules, a new Tranquebar has to be elected and elections have to be completed by then. The first defendant had been pressing for extension of his period by two years by amending the Rule to increase the age of superannuation to 67 years, which was opposed by the plaintiffs. The first defendant after realizing that he could not get the majority of the Church Council members to favour his requirement for extension going by the majority decision of the Church Council, signed the election notification for the election of new President of Tranquebar, which was issued on 13.10.2020 calling for the meeting of the SCC on 8th and 9th of January 2021. Thereafter, the first defendant had invoked Rule 128(12) of the Church Rules to illegally assume the functioning of the Secretary with the connivance of second and third defendants by emergency circular dated 13.10.2020. Similarly by circular dated 01.11.2020, the first defendant illegally and high handedly invoked Rule 194 of the Church Rules to abrogate the Church Council and take over the functions of the Church Council as well as all Boards of TELC by himself.
(iii) Hence, the suit for declaration to declare that emergency Circular No.4 of 2020 dated 01.11.2020 issued by the first defendant by invoking Rule 194 of the Church Rules, 1991 as abinito, null and void and permanent injunction restraining the defendants or any one claiming any right under them from interfering with the functioning of the plaintiffs as 4/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 Members and Office Bearers of Church Council for the Triennium 2019-2020 was filed.
4. On the application filed by the first defendant, the trial Court has rejected the suit on the ground that there is no cause of action and the suit is not maintainable as against the action taken as per the rules. Challenging the same, the present appeal suit is filed.
5. During the pendency of this appeal, several applications have been filed by the appellant and other respondents herein seeking to appoint a Judge of this Court as Administrator; to restrain the first respondent from acting as President/Bishop of TELC; to appoint a retired Judge of this Court as Election Officer; to restrain the first respondent from calling for any meeting of the SCC or Synod of TELC or issuing any circular or letter without the approval of the church council; to restrain the first respondent or anyone acting under him from giving effect to any resolution passed at the meeting held on 08.01.2021 without any approval of the church council; to appoint a retired judge of this Court as Administrator of TELC; to restrain restrain the third respondent from functioning as Bishop; to direct the third respondent to render accounts for the period from November, 2020 till the date of demitting office by him to an administrator as appointed by this Court and to direct the Bishop of TELC to restore the church council with 5/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 lawfully elected members and to function the church council as per the Church Rules by electing fresh office bearers.
6. Since learned counsel appearing on either side agrees to argue the main appeal itself during the first hearing, this Court is of the view that the very appeal suit itself can be disposed of, therefore no forth order in the petitions are required. Accordingly, the miscellaneous petitions seeking interim reliefs are closed.
7. The learned counsel appearing for the appellants vehemently contended that the plaintiffs are the elected Members of the Church Council for the Triennium 2019-22, duly elected in the election conducted by the Administrator appointed by the Hon'ble Supreme Court. The first respondent cannot suo motu, that too for his personal agenda of getting his term extended by two years by retrospective amendment to the Church Rules, overrule or override the Church Council by invoking Rule 194 of the Church Rules, where there was no such special emergency or necessity in TELC administration. The plaintiffs having proper resolution filed a suit as aggrieved persons, which is permissible under law and the plaint cannot be rejected on the ground that it is not properly framed. The Civil Court has jurisdiction to decide the issues of the civil rights arising out of Church Rules in the administration of TELC. Only averments in the plaint has to be seen while disposing the application not the pleadings or evidence of the defendants.
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8. The very relief sought in the suit is against the action of the Bishop to amend the existing bylaws for his personal gains. The elected members have been dislodged by the action of the Bishop. The Resolution is said to have been passed by the Bishop behind the back of the Church Council Members. The Bishop has suspended the Vice President and removed the Secretary and Treasurer and all other Office Bearers of various institutions of TELC and appointed his own men including those who had lost in the CC elections. The action of the Bishop is not in the interest of the Church. Hence, it is the contention that whether the action of the Bishop is as per the Rules or in violation of the Rules and attached with malice and for personal gains, can be gone into only at the stage of trial and the same cannot be gone in the initial stage. Hence, it is submitted that even assuming that the suit is not filed under Order 1 Rule 8 CPC, that itself would not be a ground to throw away the suit at the initial stage. Even by way of an amendment, the said permission can be sought before the Court. When the allegations in the plaint are serious, the trial Court cannot reject the suit giving findings touching upon the merits of the case.
9. It is also stated that in an earlier occasion, in C.R.P.(MD)No.2385 and 2386 of 2010 dated 14.12.2010, the conduct of the Bishop and the person, in charge of the TELC has been deprecated by this Court. Hence, it is contention of the learned counsel appearing for the appellants that 7/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 besides allowing the appeal, interim Administrator had to be appointed till the election of the new Bishop as per the Rules.
10. The learned counsel appearing for the first respondent has submitted that though counter has been filed in various applications, the first respondent is a neutral person and he is ready to face the trial and he has no objection for allowing this appeal.
11. The learned counsel appearing for the second and third respondents has vehemently contended that the suit is not maintainable and no permission was sought under Order 1 Rule 8 CPC. Similarly, there is no cause of action for maintaining the suit. That apart, the civil Court has no jurisdiction in respect of the action as per the Church Rules and amendment with regard to the extension of age, which is approved by the SCC including the plaintiffs. Therefore, it is his submission that the suit is nothing but an abuse of process of law and the appeal has to be dismissed.
12. In respect of his submission, he has relied upon the following judgments:-
(1)Chennai Kancheepuram Tiruvelore District Film Distributors Association and another vs. Chinthamani S.Murugesan and 4 others [(2001) 3 CTC 349.
(2) The Executive Committee vs. 8/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 Rt.Rev.Dr.V.Devasahayam and Madras Diocesan Council [(2009) 5 CTC 398]
13. The learned counsel appearing for the fifth respondent submitted that interim Administrator should be appointed till the election of the Bishop is conducted to protect the properties of the Bishop. He would further submitted that after the interim order was passed by this Court, several transaction has been taken place and the Bishop is still continuing in his capacity despite he is superannuated as per the Rules by invoking powers under Rule 194 of the Church Rules. In support of his submissions, he has relied upon the following judgements:-
(1)H.A.Martin and others vs. Moses Thambi Pillai and others [(2015) 2 SCC 121]
14. In view of the above submission, now the points arise for consideration are as follows:-
(1)Whether the rejection of the plaint without deciding the merits of the case is appropriate in law?
(2) Whether the interim Administrator has to be appointed at this stage?
15. It is well settled that the Societies Registration Act was not applicable to TELC. Law has been settled in this regard by the Hon'ble Apex Court in the case of H.A.Martin and others vs. Moses Thambi Pillai and others [(2015) 2 SCC 121]. It is admitted by both sides that the plaintiffs 2 to 7 and the defendants 2 and 3 are the elected members of the 9/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 Church as per the elections conducted on the direction of the Hon'ble Apex Court in SLP(Civil)No.13243 of 2017 to be in administration for three years, which expires in the year 2022. The first defendant is the Bishop as per Rule 161(C) of the Church Rules. The Bishop shall retire after his completion of 65 years of age or 10 years of service as Bishop, whichever is earlier. Rule 161(C) of the Church Rules also states that the Bishop should not be given extension of service beyond the period mentioned above. Rule 194 of the Church Rules deals with special powers of the Bishop to deal with the special emergency. In case of any special emergency, the Bishop shall have powers to assume the functions of any of the administrative or legislative Councils and other bodies of the Church, for such time as may be necessary.
16. Now the allegations in the plaint indicate that such power under Rule 194 been used when there had been no special emergency, only in order to extend the period of retirement for further two years. When the allegation has been made in the plaint with regard to the personal interest of the Bishop for extending such period and also suspension of the elected Church Council Members, even though their period expires only in the year 2022, all such actions of the Bishop are whether within the Rules or not has to be tested only in the trial and not at this stage.
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17. The trial Court in fact relied upon the documents produced by the defendants and given a finding as to the action taken by the Bishop. Such approach is against the very provisions of Order 7 Rule 11 CPC. To find out, whether there is any cause of action in the suit, what is required to be seen is only the plaint allegations. Whether or not the suit is barred by any law has to be seen only when the allegations in the plaint show that the suit is barred by any other law, and such suit could be thrown at the initial stage. Whereas, the trial Court in this matter has given a decision as to the rights of the parties while making decision. Therefore, the approach of the trial Court, that there is no cause of action and the plaintiffs have no right to object, assuming office of the Secretary of the CC by invoking the Rule and the plaintiffs have convened a meeting against the Bishop and passed the resolution against the activities of the Bishop, is not correct. The trial Court had held that the plaintiffs have no right to question the invocation of Rule 194 and they should question the constitutional validity of the Rules 128(12) and 194. Without challenging the said Rules, the suit is not maintainable.
18. Further, the trial Court had held that the suit ought to have been filed under Order 1 Rule 8 CPC. This view is beyond the scope of Order 7 Rule 11 CPC. What is to be seen is only the allegations in plaint to find out, whether or not cause of action survives. The main allegations in 11/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 the plaint indicate that contrary to the Rules, namely Rule 161, the first defendant as a Bishop had invoked the power under Rule 194, to keep away the elected members from the Church Council and taken several measures contrary to the by-laws. When there are serious allegations, the trial Court ought to have seen only the allegations in the plaint to find out whether there is any cause of action or not.
19. It is relevant to note that removing the elected members, who are elected legally, is not the first instance in this church. Similar instances have happened in the same church, which was the subject matter of the decision of this Court in the case of Rt.Rev.Dr.H.A.Martin vs. The Tamil Evangelical Lutheran Church and others [2011 (1) CTC 395], in which this Court in para 51 has held as follows:-
"...51. Having arrived upon the above course of action, we may now have to sort out the kind of interim arrangement that could be put in place, till the suits in which core issues are fought, are disposed of. Today, there is an elected Church Council comprising of eight members. Though they were elected in May 2010 and were holding office, the Bishop/President invoked Rule 194 and abrogated their functions by an order dated 14.9.2010. However, the elected members have obtained an injunction against the Bishop/President, though in a questionable manner. But, the Bishop has taken a stand that the order dated 14.9.2010 under Rule 194 was passed before he received a copy of the order 12/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 of injunction. In pursuance of the said order dated 14.9.2010, the Bishop/President has also effected lot of transfers and postings from 15.9.2010 onwards on the ground that the elected members of the Church Council who happen to be the Correspondents of the educational institutions, have swindled huge amounts of money. The Bishop has filed Bank Statements to prove this allegation. The statements disclose withdrawal of huge amounts. But the elected representatives claim that those withdrawals were for payment of salaries. Without a full fledged enquiry, it is not easy to find out the truth. "
20. The allegations in the previous occasion are also similar to the allegations that is pressed into service in the present case. Reading of the above judgment in entirety makes it very clear that the action of the so called persons, in removing the elected members and assuming powers to invoke Rule 194, becomes routine affairs. Similarly, this Court in the above judgment has recorded as follows:-
"...38. Therefore, invocation of the special powers under Rule 194, is not the panacea for the malaise afflicting Tamil Evangelical Lutheran Church, which has unfortunately become Tamil Evangelical Litigation Church in the recent past. If elected members of the Church Council have no fear of sin or fear of God, it is impossible for anyone including the Bishop to instil that fear in them, by taking recourse to the powers under Rule 194."
21. Similar actions have been repeated once again. Without showing any special emergency as a matter of right, one cannot invoke such 13/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 powers. This Court is not making any opinion on merits and prima facie holds that such invocation is not according to law.
22. The very allegation in the plaint itself clearly indicates that for the election of 14th Bishop, notification was issued calling for a meeting of SCC on 8th and 9th January, 2021 and Special Synod meeting on 11.01.2021. Thereafter, it appears that without going for such election process, the special powers under Rule 194 of the Church Council Rules has been invoked. Such view of the serious allegations, which affects the rights of the elected members particularly, when the election was conducted at the intervention of the Court by appointing a retired Judge of this Court as an Administrator and the tenure of the said elected members expires only in the year 2022, the lis can be tried only by a civil Court.
23. In the case of Rev.Noble Gambeeran vs. Peter P.Ponnan [1999 (1) LW 300], this Court has held that without obtaining permission under Order 1 Rule 8 CPC, the suit is not maintainable. No doubt, the Church is an unincorporated body and the same cannot be considered as a legal person. When a separate procedure is provided under Order 1, Rule 8 CPC., without complying with the provisions, no suit could be instituted even if their by-laws provide for the same.
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24. But in the present case, immediately after the filing of the suit, an application to reject the plaint has been filed and the suit has been rejected. Order 1 Rule 8 CPC., does not prohibit leave being granted after institution of the suit. Leave can be granted even after the institution of the suit and even at the appeal stage by allowing an amendment application.
25. In the case of The Executive Committee vs. Rt.Rev.Dr.V.Devasahayam [(2009) 5 CTC 398], this Court had held that the suit is not maintainable without the leave being granted under Order 1 Rule 8 CPC. Therefore, this Court is of the view that though the suit is not properly instituted, there is no bar under law to permit such suits by permitting necessary amendment. Such view of the matter, since the suit has been instituted in the personal capacity of the first defendant, it cannot be stated that the suit is not maintainable. The first defendant himself now submitted that he is ready to face the trial. Therefore, the other members sailing with the first defendant cannot object the maintainability of the suit. At any event, even assuming that there is a technical flaw in maintaining the suit framed in individual capacity, this Court is of the view that such technicalities can be set-right by way of amendment. When the allegations are so serious, such technicalities cannot be given much importance. Ultimately, substantial justice has to be seen. Hence, this Court is of the 15/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 view that the judgment of the Court below rejecting the plaint considering the submissions of the defendants, is not according to law.
26. Now the another point raised by the learned counsel that the civil Court has no jurisdiction. Reliance has been made on the judgment of the Hon'ble Division Bench in the case of Chennai Kancheepuram Tiruvelore District Film Distributors Association and another vs. Chinthamani S.Murugesan and 4 otheres [(2001) 3 CTC 349], this Court in paragraph Nos.5 and 6, it has been held as follows:-
"5. The Executive Committee of a voluntary association cannot be put on par with a Court or a Tribunal when dealing with the disciplinary matters concerning the membership of the Body. They have a very wide latitude in deciding as to when disciplinary action is warranted and the extent to which the powers vested in them under the Rules or byelaws should be exercised while penalising the members for the misconduct which the appropriate Body within the association empowered to decide that question, considers him to be guilty. The procedure to be followed by such an association also cannot be that which is normally expected to be followed in a Court or a Tribunal. Every letter written by the Executive Committee of an association to its member calling for an explanation is not to be judged under a lens to find out the possible defects therein for the purpose of holding that the action that followed was not in consonance with the principles of natural justice. Even principles of natural justice 16/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 are not required to be applied with the same degree of rigour as they would be in the case of adjudication before a Court or a Tribunal.
6. What is required of such bodies is that they act fairly in a broad way without having to imitate the Courts and Tribunals, with regard to the rigour and the formality of the procedures. Such bodies are, of course, expected to act in accordance with their own Rules, and stay within the limits imposed by those Rules. If the Body vested with the power under the Rules exercises that power within the ambit of the Rule, after having afforded an opportunity to the member concerned to have his say in the matter, the decision rendered by such Committee cannot be regarded as illegal or violative of natural justice or as arbitrary. The Courts will not sit in appeal over the decisions of such Committees, subject to such decision being broadly in consonance with general standard of fairness."
27. No doubt, when the action was taken as per the Rules after affording an opportunity to the members, the Court will not sit in an appeal over such decision of the Committee. However, such action or decision, prima facie, appears to be malice and for personal gain, it cannot be stated that the civil Court has no right to go into the decision. Ouster of the civil Court jurisdiction cannot be inferred slightly unless the jurisdiction is specifically excluded. Even the perusal of the entire Rules, it is made clear that there is no rule for exclusion of the civil Court and the right of the 17/20 http://www.judis.nic.in A.S.(MD)No.18 of 2021 parties to continue as Office Bearers is legal right and such right is infringed. Therefore, the contention of the learned counsel appearing for the respondents cannot be countenanced.
28. Though it is beyond the scope of this lis, this Court is constrained to express its displeasure over the nature of the litigation and cases filed challenging the elections, which were conducted under the supervision of the Courts including the Hon'ble Apex Court. A classic example, as to how the litigation is taken advantage to use the powers and squat over the property of the Church and squander its wealth, is the judgment reported Rt.Rev.Dr.H.A.Martin vs. The Tamil Evangelical Lutheran Church and others [2011 (1) CTC 395], wherein this Court has tabulated the cases filed before the elections and after the elections. Almost 26 cases have been filed at the relevant point of time in 19 Courts, besides, various other interim orders have also been obtained. The nature of litigations and waste of judicial time taken in this case cannot be ignored altogether. One thing is clear that all the litigations is with regard to the Church properties.
29. Therefore, having regard to the various allegations, this Court is of the view that to protect the valuable properties and wealth of the Church, it is a high time for persons who are in helm of affairs to ponder over to protect the property of the Churches.
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30. Accordingly, this appeal suit is allowed and the judgment of the trial Court is set aside and the suit is restored to file and the trial Court shall expedite the suit and complete the trial within a period of six months. Till such time, having regard to the nature of the allegations and the manner in which the rules have been amended and taking note of the frequent litigations, though it is beyond the scope of this appeal, prima facie this Court is of the view that, till the suit is disposed of within a period of six months, interim stay is granted restraining the respondents from issuing any circular or fresh notification for election. The parties are also at liberty to move before the trial Court seeking any other urgent interim relief and if any such application is filed, the trial Court shall decide the same expeditiously on merits. No costs.
19.03.2021
Index : Yes/No
Internet : Yes/No
ta
19/20
http://www.judis.nic.in
A.S.(MD)No.18 of 2021
N.SATHISH KUMAR, J.
ta
To
1.The I Additional District Judge (PCR), Tiruchirappalli
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
Judgment made in A.S.(MD)No.18 of 2021 19.03.2021 20/20 http://www.judis.nic.in