Madras High Court
Rev. Noble Gambeeran And Ors. vs Peter P. Ponnan For Himself And As ... on 9 November, 1998
Equivalent citations: (1999)1MLJ392
ORDER S.S. Subramani, J.
1. This revision is filed under Article 227 of the Constitution of India, by defendants 1 to 3 in O.S.No. 270 of 1998, on the file of Judicial Magistrate-cum-District Munsif at Cheyyar.
2. Reference to parties in this order will be according to their rank in the suit.
3. Plaintiff filed the suit for the following reliefs:
(1) permanent injunction restraining the 2nd and 3rd defendants from exercising any executive, administrative and disciplinary powers including convening of any Committees and Boards in respect of C.S.I., Vellore Diocese, giving effect to the illegal transfer orders, and initiating any further disciplinary action against the Pastors, subordinates, etc., till the 4th defendant finally adjudicates the complaints against the 3rd defendant.
(2) directing the defendants to pay the costs of this suit to the plaintiff, (3) pass such further or other orders as this Hon'ble Court may deem fit and proper under the circumstances of the case.
4. Plaintiff alleges the he is a member of C.S.I. denomination The C.S.I. Religious Organisation is carrying out its activities throughout south India having its Head Office at Madras, and a Branch of the above church is also situated at Cheyyar under the supervision of 1st defendant, who is the Pastor. Defendants 2 and 3 are the immediate religious authorities at the Cheyyar church, and 4th defendant is the ultimate authority under whose jurisdiction plaintiff and other defendants are" carrying on the spiritual: activities.
5. Third defendant became the Bishop of the Vellore Diocese in the year 1988, and all is not well within the Diocese for the last ten years, in view of the attitude of third defendant. Number of litigations are pending and the authority of third defendant is also being questioned by many. His behaviour is unethical and immoral and various representations have been made to the fourth defendant to initiate action against third defendant: Third defendant, was, therefore, asked to go on leave for six months, which he obeyed, and, after joining duty on the expiry of leave, he became vindictive towards the pastors and also the persons who filed complaints against him, to the 4th defendant 4th defendant also appointed an enquiry commission and submitted a report that prima facie the allegations against third-defendant are true. Third defendant was asked to file his explanation, and third defendant is yet to file his explanation.
6. Reason for filing the suit is that, third defendant began to act arbitrarily and the pastors within the Diocese are being transferred overnight even without putting them on notice. The various orders passed by third defendant violating the principles of natural justice have affected the worshipping public. The further reason for filing the suit is, the third defendant is trying to convene a meeting of the Executive Committee on 7.7.1998 and 8.7.1998 to take disciplinary action against various pastors, and this has created panic among the community, and plaintiff apprehended that it will create disturbance in the worship and services in the Church.
7. Along with the suit, plaintiff filed an application under Order 1, Rule 8, C.P.C., seeking permission for himself to represent the other members of the C.S.I. Christian community to file the suit. He also filed another application, namely, I.A.No. 536 of 1998 for temporary injunction to restrain defendants 2 and 3 from exercising any Executive, Administrative and disciplinary powers including convening of any committee and board meeting in respect of C.S.I. Vellore Diocese giving effect to the illegal transfer of the Pastors and initiating any further disciplinary actions against the Pastors and subordinates, etc., till the fourth defendant finally adjudicates the complaints against the third defendant, pending disposal of the suit, and also to grant an ad interim injunction.
8. The court below passed the impugned order which reads thus:
Heard, Both sides records have been perused.
1. Document No. 1 indicates that a meeting was held on 30.5.1998 at 7.00 p.m. and transfer orders passed without giving opportunity to the Pasters, directing them to join in the very next day, i.e., 1.6.1998.
2. In Document No. 3 in para 2 indicates grave violation of Rules of the Synod Secretariat by the 3rd respondent/defendant.
3. In Document No. 4, para 4, it has been indicated by the apex body of the synod that the 3rd respondent/defendant has gone beyond and violated all the norms even dishonoured the dignity of the office of the Bishop.
All the above facts indicate that there is prima facie case in favour of the petitioner/plaintiff and balance of convenience is in favour of the petitioner/plaintiff. Further, the activities of the 2nd and 3rd respondents indicates the violation of Natural Justice without giving opportunity to the Pastors referred to there in the petition. On the other hand, vakalath for R-2 and R-3 filed and plaint copy and petition copy given. Though vakalath filed on behalf of R-2 and R-3, there is apprehension in the minds of the church Fathers mentioned in Document No. l that any action detrimental to their professional service of the pastors would be taken by the defendants R-2 and R-3. Hence in the circumstances, issue notice to the respondents by 17.7.1998 and ad-interim injunction granted against R-2 and R-3 till then.
9. It is the above interim order that is challenged in this revision; under Article 227 of the Constitution of India.
10. Since the respondent in the revision petition had entered appearance by filing caveat, when the revision came for admission, I heard the interim petition in this revision petition.
11. After hearing learned Counsel for both parties, I felt that the impugned order is perverse, and, therefore, I suspended the impugned order. I also directed the court below not to pass any further order in the suit.
12. Before going to the facts of the case, it must be noted that the revision petitioners are defendants 1 to 3. As against first defendant, no relief is claimed. Learned Counsel for petitioners submitted that this is a typical case of abuse of process, and petitioners herein are dragged before courts in one suit or the other filed by different persons, but to achieve the same purpose.
13. It is seen from the typed set of papers that O.S.No. 195 of 1998, on the file of District Munsif's Court, Vellore, was filed against the Bishop and Church of South India, for the same relief, There also allegations were made against the Bishop, and the relief sought for in that case was, that the 1st defendant-Bishop of Vellore Diocese should not function as Bishop, President of the council and Chairman of the committees and Boards of Vellore Diocese of church of south India, and a further relief of mandatory injunction was also prayed for, viz., for a directions to 2nd defendant-C.S.I. to constitute a court of the synod to try the 1st defendant therein on the charges levelled and pending against him. 2nd defendant therein is the 4th defendant in the present suit O.S.No. 270 of 1998, and 1st defendant therein is the 3rd defendant herein. In that case also, an ad-interim injunction was granted. A revision petition was filed before this Court under Article 227 of the Constitution of India, as C.R.P.No. 1056 of 1995. I suspended the order, and directed the court below to dispose of the injunction application on merits.
14. Another suit was filed as O.S.No. 203 of 1998, on the file of District Munsif's Court, Cheyyar. There also, defendants 2 and 3 herein are parties. A reading of plaint filed in that suit shows; that allegations have been made against second defendant, regarding certain acts and omissions. Relief sought for in that case is, to grant a permanent injunction restraining defendants 2 to 5 from in any manner functioning or carrying out their official duties as office bearers either individually or collectively in respect of Vellore Diocese Church of South India, including C.S.I. Church, Cheyyar. An interim injunction was granted. The same was also challenged in C.R.P.No. l471 of 1998. A learned Judge of this Court has given a detailed order that the suit itself is not maintainable and that the order of injunction is illegal and suspended the same even at the admission stage itself. A third suit was filed as O.S.No. 140 of 1998, on the file of District Munsif's Court, Ambur. There also, interim order was granted as prayed for, and the relief, sought for in that case was, that the respondents, defendants in that suit, should be prevented from convening the Ministerial Committee and from giving effect to the orders transferring the Pastors already passed by the Ministerial committee of the Vellore Diocese, till the disposal of the suit. The same was also challenged in C.R.P.No. 1660 of 1998. I set aside the order and directed the court below to hear the injunction petition on merits, and the order granting ad-interim injunction was vacated.
15. Another suit O.S.No. 359 of 1998 was filed by another person, which was also a representative suit, before the District Munsif's court at Gudiyatham. Defendants 2 to 4 in that case are also parties herein. Even though an injunction was sought for in that case, only notice was ordered. Allegations are the same, namely, that there is mismanagement by the Bishop and, therefore, he should be prevented from discharging his official duties. It is thereafter the present suit is filed as O.S.No. 270 of 1998, before the Judicial Magistrate-cum-District Munsif, Cheyyar This suit has also been filed by plaintiff on his own behalf and also on behalf of the Christian community pf the Church of South India.
16. On going by the various averments in the plaint, though the eo-nominee plaintiff may not be the same, it is clear that all these suits are filled alleging acts of misdeeds against he third defendant, and plaintiff in those cases wanted the third defendant to be prevented from discharging his religious duties. They also wanted to prevent him from convening committee meeting of which he was the President, and also wanted him not to take any action including transfer of various Pastors and also from taking any disciplinary action against them.
17. Once common feature which I found in all these suits is, that even though the disciplinary action or transfer is with respect to Pastors, none of the Pastors has come to court, putting forth their grievance. They do not seem to have any grievance either against the Bishop or against the orders of transfer. It is only the individual member of the community who has come to court making allegations against third defendant. In all the suits, reliefs prayed for are almost the same. It could be further seen that all these suits have been filed one after another, and that too when an ad-interim injunctions is suspended or vacated by this Court. In the suit filed before the Gudiyatham court alone, ad-interim injunction was granted, though it was a representative suit. That suit was filed on 29.6.1998 and it was on 1.7.1998, the court ordered notice. When no ad-interim injunction was granted, the present suit was filed on 3.7.1998 before the District Munsif's Court at Cheyyar. Taking into consideration these facts, one thing is clear, namely, that a gang of persons are indulging in filing one suit after another, and when they do not get any interim relief, they attempt to file another suit to achieve the same purpose, and third defendant herein, who is the spiritual head is compelled to defend all these suits, instead of spending his valuable time in church.
18. Contention of learned Counsel for petitioner that various individuals are filing separate suits, in various courts, to achieve the same purpose, appears to be true and correct.
19. I have already said that as against the first defendant, no relief is claimed in this suit. Defendants 2, 3 and 4 are admittedly residing and are also having their office outside the terribrial jurisdiction of the District Munsif's court it Cheyyar. Second defendant is the Honorary Secretary of the C.S.I, Vellore Diocese, Vellore Third defendant is the Bishop. He is also it Vellore, and 4th defendant-Executive committee of C.S.I, is functioning from the C.S.I. Centre at Royapettah, Chennai. Paragraph 6 of the plaint which deals with 'cause of action', reads thus;
The cause of action for the suit arose or 8.5.1997 when the 4th defendant forced the 3rd defendant to go on leave on 14.3.1998 when the 4th defendant directed the 3rd defendant to resume duty with certain conditions: on 30.5.1998 when the 3rd defendant arbitrarily and in violation of principles of natural justice, transferred the Pastors vindictively; on 4.6.1998, when the aggrieved Pastors sent an appeal to the 4th defendant; On 19.5.1998 when the 4th defendant sent a communication constituting enquiry commission against the 3rd defendant; on 16.6.1998 when the 4th defendant sent a warning and reminder letter calling for explanation from the 3rd defendant on 30.6.1998 when the 3rd defendant initiated disciplinary proceedings against the Pastors; on 30.6.1998 when the paper publication was effect in respect of institution of a suit restraining the third defendant from convening the Executive Committee; On 1.7.1998 when the 2nd defendant sent a Notice to convene a Special Executive Committee meeting on 6.7.1998, continues from day to day at Cheyyar where the C.S.I. Church and its properties are Situated within the jurisdiction of this Hon'ble Court.
20. A reading of the same also makes it clear that no portion of the cause of action has arisen within the District Munsif's Court at Cheyyar, even though the property of the church may be situated therein. Relief is claimed mainly against defendants 2 and 3 and also Against the fourth defendant. A reading of the cause of action also does not show that even as against the fourth defendant, plaintiff has a claim, except to state that he has sent a warning and reminder calling upon the third defendant to explain. First defendant alone resides within the jurisdiction of District Munsif s Court at Cheyyar. But, as I said already, plaintiff is not claiming any relief against 1st defendant and why first defendant has been impleaded in the suit has also not been stated. Filing a suit in a court which has no jurisdiction and getting an interim order, is also an act of abuse. It is not a case where the plaintiff ban say that they are not aware of this procedures for, on an earlier occasion, when a similar suit was filed by another individual, similar question was raised before me. That was in C.R.P.No. 1971 of 1997. In that case, one Albert was plaintiff, and present third defendant was also one of the defendants. It was also a suit concerning the church and its institutions.
21. From the cause-title of the plaint, it is seen that the third defendant is impleaded only in his official capacity. Second defendant is the Executive Committee of the C.S.I. Vellore Diocese represented by its Honorary Secretary, and it is said that even though third defendant is named, he is the Bishop and he is carrying out his business in his office at Vellore. Though the plaintiff has filed an application under Order 1, Rule 8, C.P.C. to permit him to institute the suit as representative of the Christian community, as against the second defendant, no such application is filed. Admittedly, second defendant is an unincorporated body. A church is also an unincorporated body, and a suit against them is not maintainable without getting permission under Order 1, Rule 8, C.P.C. Section 26 of the Code of Civil Procedure Says thus:
Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
For instituting a suit in a representative capacity or for filing a suit against a representative body, the procedure under Order 1, Rule 8, C.P.C. has to be complied with. It says that 'where there are numerous persons having the same interest in one suit, (a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit on behalf of or for the benefit of all persons so interested. (Remaining portion omitted as unnecessary). Therefore, institution of the suit itself must be with permission of the court, Again, under Order 7, Rule 4, C.P.C., when the plaintiff sues in a representative character, the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it." Order 7, Rule 9, C.P.C. provides the procedure for admitting the plaint, and Sub-rule (2) of the said Rule also says that 'where the plaintiff sues, or the defendant or any of the defendant is sued in a representative capacity, such statements shall show in what capacity the plaintiff or deferdant sues or is sued'.
22. In Kalyan Singh v. Smt. Chhori , in paragraph 13 of the judgment, their Lordships have said that for a representative suit, the courts permission under Order 1, Rule 8 of the Code of Civil Procedure is mandatory'. Admittedly as against the second defendant, no such permissions has been sought for. So long as there is no permission granted and has not been applied for, it cannot be said that there is a suit against it. At this juncture, learned Counsel for plaintiff represented that as per the constitution and By-laws of the Church, the Honorary Secretary is competent to represent the Diocese and he can sue and be sued. According to me, when the church itself is an unincorporated body, it cannot be considered as a legal person. When a separate procedure is provided under Order 1, Rule 8, C.P.C, without complying with that provision, ho suit could be instituted even if their Bylaws provide for the same, For that view, I take support from the decision reported in Corporation, of Trivandrun v. K. Narayana Pillai, 1968 K.L.T. 285. That was a suit against a Football Association, which was an, unincorporated body. An argument was taken before the High Court that the Rules of the Football Association provide that the Secretary of the Association can represent the association in suits and, therefore, it would be enough if the secretary is impleaded in his capacity as secretary as a decree obtains with him on the party array would bind the association. Repelling the contention the learned Judge has held thus:
...The Foot Ball Association is an unincorporated body. I do not know how I can pass an order for impleading such an Association. In this case, it may be noted, only the honorary treasurer of the Association has been impleaded. Appellant's counsel submitted that as the Rules of the Foot Ball Association provide that the secretary of the Association can represent the Association in suits, it would be enough if the Secretary is impleaded in his capacity as Secretary as a decree obtained with him on the party array would bind the association, and, therefore, this Court may direct the impleading of the Secretary of the Association. I am not sure whether by impleading the Secretary of the Association the appellant will be able to get a decree binding on the Foot ball Association. Even if Rules of the Association on provide that the Secretary can represent the Association in suits by or against it, I do not know whether a decree obtained against the Secretary in his capacity as Secretary would bind the Association. The Secretary of a Club or other association cannot sue alone in respect of a matter in which the Association is interested even if he is authorised so to do by a resolution of the members of the association. The suit must be brought by all the members of the Association, or by the Secretary on his own behalf and on behalf of the other members under Order 1, Rule 8. (See-Mohammedan Association, v. Bakshi (1884) I.L.R. 6 All. 284). I think, the same would be, the result, if a suit is brought against the secretary as representing the Association....
23. In Narayanan Nambuthuri v. K. Educational Society, 1957 K.L.T. 932, it was held thus:
The sanction contemplated by Order 1, Rule 8, (C.P.C.) could be given even after the presentation of the plaint. There is provision in Rule 8 itself for giving notice of such sanction to all persons interested in the suit in such manner as may be directed by the court. The suit will be deemed to be representative suit under Order 1, Rule 8 brought forward with the permission of the court only after the issue of such notice....
[Italics supplied]
24. In this case, Rev. Y. Williams is the name of the Honorary Secretary representing the Executive Committee. He becomes representative of the Executive Committee only when he is allowed to represent the Executive Committee by filing an application and it becomes a representative suit only after issuing a notice on the application. As on date, there is no representative suit against this second defendant at all. If there is no suit, naturally, it also follows that no injunction can be granted. Order 39, Rule 1, C.P.C; provides that an injunction must be against a party to the suit.
25. Though the third defendant is named, he had also been impleaded only in his official capacity and his official acts are sought to be prevented in this suit. He acts as the President of the Executive Committee. He can be considered as a party only when the second defendant has been properly impleaded. Therefore, even though the third defendant is named, he cannot be said to be a party to the suit as on date as there is no representative suit as against him also.
26. An argument was advanced by learned Counsel for respondent that they will be satisfied if an order of injunction is granted as against the third defendant. Even ad interim injunction should not have been granted in this case taking into consideration the previous litigations. It cannot be said that the plaintiff was not aware of the previous suits, since, in the body of the plaint itself it is said that there were number of litigations against third defendant questioning his unconditional, unethical and immoral activities. Once plaintiff knows about the various previous litigations pending against third defendant, naturally, it has to be inferred that he must be aware as to what happened to those litigations. Without disclosing anything about these litigations, and filing a suit before the court below which has no jurisdiction, I feel, is only an attempt on the part of the plaintiff to get some order through backdoor.
27. In the decision reported in Sri Suryanarayana Paper and Boards Pvt. Ltd. v. Padmakumar and two Ors. , Srinivasan, J., as he then was, has held that an ad-interim injunction granted by a court which is not having jurisdiction, is null and void. In that case, the learned Judge said that, 'In those circumstances, the court at Udumalpet had no jurisdiction whatever to entertain the suit of the plaintiffs. The Court ought to have returned the suit for presentation in proper court even on the allegations contained in the plaint. In spite of the averments in paragraph 13 of the plaint, the District Munsif, Udumalpet chose to receive the plaint and granted an interim order, as prayed for by the plaintiffs. For the afore said reasons, both there orders of interim injunction are unsustainable and they have to be set aside.
28. In Orissa State Financial Corporation v. Hotel Jogndra (1995)5 S.C.C. 357, their Lordships said in paragraph 8 that, 'the dilatory tactics defeat the public policy and the court process becomes an instrument of abuse. Court would protect only honest and sincere litigants.'
29. In a recent decision of the Supreme Court reported in K.K. Modi v. K.N. Modi , their Lordships considered what is meant by 'abuse of process' and powers of court. The principle laid down in that decision fully applies to the facts of this case. Paragraphs 43 to 46 of the judgment read thus:
The Supreme Court Practice, 1995 published by Sweet & Maxwell in paragraph 18/ 19/33 (p.344) explains the phrase "abuse of the process of the court" thus:
This term connotes that the process of the court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.
The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose consideration of Public policy and the interests of justice may be very material.
One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res Judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
In the case of Greenhalgh v. Mallard (1947) 2 All.E.R. 225, the court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The court held that if the plaintiff has chosen to put his case in a way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he is relying on anew cause of action. In such circumstances, he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980)2 All E.R.227. The Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiff's earlier criminal trial. The court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as ah abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of resjudicata or the requirement of issue estoppel.
30. As I said already, one suit after another is filed, and, when interim order is vacated in one case, another suit is filed without disclosing the details, in another court, but to achieve the same purpose, though the plaintiff may not he the same. It is clear that the object is to prevent the third defendant from discharging his religious duties and also from passing orders as Religious head of the church, and also as President of the Association. According to the decision of the Supreme Court in K.K. Modi's case the cause of action need not be the same. If it is to achieve the same purpose, such acts should not be supported by court, and the court process should not be made an instrument of abuse.
31. In all the plaints relating to the suits referred to above, one thing that is common is, that it is the pastor's transfer that is in issue. The pastors themselves have not come to court putting forth any grievance. When the issue pertains to transfer of Pastor, he alone can be the affected person. Individual Members of the community cannot be aggrieved, nor can any individual member insist that he will get service only from a particular Pastor. He cannot file a suit objecting the transfer of a Pastor, when another pastor is appointed to the same Parish. Plaintiff Herein also has no locus standi to file the present suit, and he is also not an aggrieved person.
32. I also make it clear that if any suit is filed against the Bishop or against the Executive Committee of the Vellore Diocese or if any suit is filed against the Vellore Diocese itself, such a suit will be filed only within its jurisdiction where the defendant is having his business or residence. I give this direction only far the reason that the spiritual head should not be allowed to be harassed by filing suits one after another in various courts. I am not preventing the filing of any suit, but only direct that the same must be filed in courts having jurisdiction, i.e., where the defendant is residing or having his business.
33. In C.M.P.Nos. 10179 and 11399 of 1998, I heard learned Counsel for petitioners who seek impleadment. Since I am of the view that the suit itself is liable to be struck out from file, for the reason that it is an abuse of process, it is not necessary to order any impleadment. Hence C.M.P.Nos. 10179 and 11399 of 1998 are liable to be dismissed.
34. In the result, the civil revision petition is allowed. The ad-interm injunction granted by the court below is set aside and the injunction application is dismissed. Since I hold that the suit is not filed bonafide and the plaintiff is not an honest litigant, the court is not expected to grant any relief to him. The court process should not be allowed to achieve an oblique purpose. The present suit which has been filed as representative suit cannot, therefore, be maintained. O.S.No. 270 of 1998; on the file of Judicial Magistrate-cum-District Munsif's Court, Cheyyar, is struck off the file. I also make it clear that the third defendant is entitled to discharge his official duties in whatever capacity, Whether as Bishop or as President of the Executive Committee or varibus Organisations of the Diocese, and his duties shall foot be prevented by any person, and no Subordinate court can prevent the third defendant from discharging such duties. Petitioners herein are allowed their costs in this revision petition quantified at Rs. 3,000 (Rupees Three thousand Only). C.M.P.Nos. 10179 and 11399 of 1998 for impleadment are dismissed. C.M.P.No. 9128 of 1998 for interim order is closed.