Madras High Court
Chirstian Media Centre Of India Trust vs The Indian Evangelical Lutheran on 30 January, 2023
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
S.A.No.584 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.11.2022
PRONOUNCED ON : 30.01.2023
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No.584 of 2011
and M.P.No.1 of 2011 & M.P.No.1 of 2012
Chirstian Media Centre of India Trust,
Rep. by its Rev.Dr.S.Suviseshamuthu,
No.167, Linghi Chetty Street,
Chennai. ...Appellant
Versus
The Indian Evangelical Lutheran
Church Trust Association
Rep. by its Administrator
1.Mr.Justice J.Kanagaraj (Deleted)
2.Mr.M.S.Palaniswamy (Deleted)
replaced President J.SAmuel
[as per order dated 04.10.2007 in
C.M.P.No.25 of 2007 in A.S.No.147
of 1997]
No.2, 15th East Cross Road,
Gandhi Nagar, Vellore. ...Respondent
1/22
https://www.mhc.tn.gov.in/judis
S.A.No.584 of 2011
Prayer: Second Appeal filed Under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 28.10.2009 made in
A.S.No.147 of 1997 on the file of the Additional District Judge, Fast Track
Court – I, Chennai, confirming the Judgment and Decree dated 11.12.1997
made in O.S.No.5616 of 1992 on the file of the V Assistant Judge, City Civil
Court, Chennai.
For Appellant : Mr.AR.L.Sunderesan
Senior Counsel
for Mr.Rajkishore
For Respondent : Mr.Rajkumar Paul
for M/s.Paul & Paul
JUDGEMENT
This Second Appeal is preferred as against the Judgment and Decree dated 28.10.2009 made in A.S.No.147 of 1997 on the file of the Additional District Judge, Fast Track Court – I, Chennai, confirming the Judgment and Decree dated 11.12.1997 made in O.S.No.5616 of 1992 on the file of the V Assistant Judge, City Civil Court, Chennai.
2.The appellant herein is the plaintiff and the respondent herein is the defendant in the suit.
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3.For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
4.The case of the plaintiff is that the Christian Arts and Communication Service (CACS) is a Society incorporated under the Societies Act. The suit property was initially purchased by a group of missionaries under the name Missouri Evangelical Lutheran India Mission (MELIM) in partnership with International Lutheran Laymen's League (ILLL) out of their own funds on 07.01.1965 in Eldams Road, Chennai and constructed a building therein for the purpose of Christian Mass Media Ministry. The Christian Arts and Communication Service was initiated for the purpose of mass media ministry in the year 1969 and it formed as registered Society in the year 1973. Thereafter, since the Government of India passed regulations that all foreign owned agencies must transfer their properties to Indian based organizations, MELIM transferred the suit property by a Deed of Transfer to India Evangelical Lutheran Church Trust on 28.12.1973 for the benefit of CACS. Since ILLL was not satisfied with funding of CACS, they stopped funding CACS and therefore, CACS stopped 3/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 all its activities and the employees of CACS were laid off on 15.04.1984. On 30.07.1987, a resolution was passed for the dissolution of CACS and on 17.08.1991, the memorandum of settlement executed between the employees of CACS and CACS for winding up the committee. Meanwhile, on 16.06.1984 through deed of declaration of Trust, ILLL has declared the plaintiff as Trust to carry on the activities of the ILLL in India.
5.According to the plaintiff, the entire past financial commitments of CACS were settled out of the funds given by the plaintiff as stated in the deed of declaration/Ex.A1 and since the liabilities has been paid by ILLL through the plaintiff, the plaintiff claims themselves as successor in interest of CACS. Further, it is the case of the plaintiff that ILLL had recognised the plaintiff as successor in interest and the plaintiff was also a party before the Labour Court in settlement of labour dispute and hence filed the suit to declare them as successor in interest of CACS.
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6.The case of the defendant is that originally the suit property was transferred by virtue of Ex.B34 on 28.12.1973 to and in favour of the defendant with a condition that the defendant should hold the property on behalf of CACS and in the event CACS being unable to continue to pursue its objects as they exist today, the defendant shall hold the property with all superstructure and installations, in trust for the India Evangelical Lutheran Church for carrying on the Christian Mass Media Ministry and if that were found to be not possible, for Christian Ministry of similar nature for similar purpose as may be decided upon by the then existing trustees. At present the defendant is holding the trust and therefore, the claim of the plaintiff is un- sustainable.
7.The further case of the defendant is that before the Labour Officer and various proceedings, the plaintiff has categorically stated that they are no way connected with CACS activities and the plaintiff is not successor in interest of CACS. After the completion of winding up, merely though the plaintiff have provided funds for settlement of the labour dues, which was obtained by ILLL, the plaintiff has taken a stand that they are successor in 5/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 interest of CACS. The plaintiff cannot take such a stand and file a suit seeking to declare them as successor in interest of CACS. Only the trustees of the defendant's association is entitled to decide upon for using the suit premises for the purposes it is meant. Therefore, according to the defendant the suit is not maintainable.
8.Before the trial Court, on behalf of the plaintiff P.W.1 was examined and Exs.A1 to A6 were marked and on behalf of the defendant D.W.1 was examined and Exs.B1 to B42 were marked. The trial Court after hearing the parties and perusing the records, dismissed the suit with cost.
9.Aggrieved over the same, the plaintiff has preferred appeal before the First Appellate Court. The First Appellate Court after perusing the records and pleading has extracted 23 grounds and ultimately framed the point for consideration. Before the First Appellate Court, the plaintiff has marked additional documents Viz., A9 to A22. After discussing all the 23 grounds, the First Appellate Court has come to the conclusion that the plaintiff is not entitled for the relief sought by them and confirmed the 6/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 judgment and decree passed by the Trial Court.
10.Against which, the plaintiff has preferred the present Second Appeal. The Second Appeal was admitted by this Court on 21.12.2012, by framing the following substantial questions of law:
“1.Whether the judgment of the lower Appellate Court does not comply with the mandatory requirement of Order 41 Rule 31 Civil Procedure Code and whether the same shall be the ground on which the decree of the Appellate Court can be set aside?
2.Whether the lower Appellate Court has committed an error in not following the procedure contemplated in Rule 28 of Order 41 for recording additional evidence after having allowed the Interlocutory Application for reception of additional documentary evidence?”
11.By referring the above substantial questions of law, the learned Senior Counsel appearing for the plaintiff submitted that the First Appellate Court without following the mandatory requirement of Order 41 Rule 31 7/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 CPC, has passed the judgment and decree. Further, the plaintiff filed an application seeking to mark additional documents before the First Appellate Court under Order 41 Rule 28 and the same was allowed. Subsequently, the Court below has not given any opportunities to the plaintiff's counsel to examine the parties.
12.Learned Senior Counsel appearing for the plaintiff would further submit that the vital aspect of settlement of dues and taking over all the liabilities of CACS by the plaintiff have not been considered in proper perspective by both the First Appellate Court as well as the Trial Court. When the Trial Court fails to consider this aspect, the First Appellate Court supposed to have dealt with this aspect but, without complying Order 41 Rule 31 CPC, it has passed the judgment and decree. That apart, additional documents viz.Exs.A9 to A22 were also not considered. Therefore, he would submit that on the above points, the judgment and decree passed by the First Appellate Court is liable to be set aside.
13.On the other hand, the learned counsel appearing for the 8/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 defendant/respondent would submit that the defendant and CACS are two different entities. The suit schedule properties are in the name of the defendant. In the transfer deed dated 28.12.1973, it has been clearly stated that the suit properties has to be utilised for the purpose of carrying on mass media ministry (radio ministry) by CACS. In the event of winding up, the suit property will vest with the defendant and in the event, the defendant also goes for winding up, the Trustees should decide and dealt with the property. Binding over the said transfer deed, he would submit that the plaintiff under no sketch of imagination can claim successor of CACS and CACS had not stated anything with regard to the successor in interest of their business properties. He referred Exs.B5, B12 and B13 and submitted that in the reply statements and counter filed before the Labour Officer, it has clearly stated that CACS is not in any way connected with CMS or its functioning, nor it has anything to do with the defendant.
14.In support of his contention, he referred Exs.B7, B10, B11 & B32 and submitted that the plaintiff themselves admitted the fact that they are not in succession in the interest of CACS and the plaintiff is no way 9/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 connected with CACS. Even the founder of the plaintiff sent a letter to CACS on 04.06.1985, which was marked as Ex.B11, stating that the plaintiff is not successor in interest of CACS. The plaintiff has also sent a letter vide Ex.A7 as if the defendant permitted to take over CACS successor in interest but the defendant replied by virtue of Ex.B21 stating that the plaintiff is not successor in interest.
15.Learned counsel would further submit that the initial settlement was also made only by the defendant with their employee on 19.08.1991 and therefore, he contended that the claim put forth stating that the plaintiff is successor in interest of CACS was properly dealt with by both the Trial Court and the First Appellate Court. The claim of the plaintiff that the Courts below are not dealt with proper perspective is not correct. Each and every ground raised by the plaintiff before the First Appellate Court have been properly considered.
16.Even the plaintiff has not taken any steps to mark additional documents through witness. The First Appellate Court gone through the 10/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 documents and given a categorical findings. All those documents filed by the plaintiff and the defendant has been admitted by both the parties. There is no dispute on it. When such being the case, if anything would adverse it could be only to the defendant and hence, prayed to dismiss the second appeal.
17.Heard the learned counsel appearing for the plaintiff as well as the defendant and perused the materials available on record.
18.The CACS was formed by International Lutheran Laymen's League (ILLL) and the same was registered in the year 1973. Originally the suit property belongs to MELIM, who purchased the property on 07.01.1985. Due to the Government of India regulations, MELIM transferred the property by virtue of Ex.B34 to and in favour the defendant with a condition that the defendant should hold the suit property in the name of the Trust on behalf of CACS till its dissolution. Once the dissolution is made, the property should vest with the defendant exclusively. In the event, the defendant also goes for dissolution or winding up, in such case, the 11/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 Trustee should decide the disposal of the property.
19.A mere going through of documents Exs.A3 and B34 could clear that this suit property is exclusively belongs to the defendant. At this juncture, it would be proper to extract the relevant clause of Ex.B34, which are as follows:
“In the event of the Christian Arts and Communication Services being wound up or in the event of the Christian Arts and Communications Service being unable to continue to pursue its objects as they exist today, the transferee shall hold the property with all superstructure and installations, in trust for the India Evangelical Lutheran Church for carrying on the Christian Mass Media Ministry and if that were found to be not possible, for Christian Ministry of similar nature for similar purposes as may be decided upon by the then existing trustees.”
20.A reading of the above clause would clear that after the dissolution of CACS, the defendant shall hold the property with all superstructure and 12/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 installations, in trust for the India Evangelical Lutheran Church for carrying on the Christian Mass Media. Therefore, the plaintiff cannot claim themselves as successor in interest of CACS and thereby they could not claim right over the suit schedule properties. This aspect was considered by the Trial Court as well as the First Appellate Court in proper perspective. This Court unable to agree with the plaintiff that these aspects were not considered by the Courts below. Even a perusal of Exs.B5 and B31, written statement of the plaintiff before the labour Court proceedings, where CACS shown as 1st defendant and the plaintiff shown as the 2nd respondent, wherein the plaintiff took a stand that they are nothing to do with the business of CACS and the plaintiff and CACS are two different entitles.
21.Further in Ex.B12, reply statement of the defendant herein before the Labour Office, it has been stated in paragraph No.6 as follows:
“6.It is submitted that the CACS has no connection whatsoever with the CMCI. The then director of the CACS had left the organisation and has also partly settled his accounts. The CACS has no connection or knowledge of the activities of the newly formed CMCI.” 13/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011
22.It is pertinent to mention that the plaintiff formed in the year 1984. Ex.B12, reply statement was filed by CACS before the labour officer on 17.10.1985. Further on 30.07.1987, following resolution was passed for dissolution of CACS, which was marked as Ex.B27:
“It is hereby Resolved that the Christian Arts and Communications Service Society registered under the Tamilnadu Societies Registration Act, 1975, in view of the grave problems confronting the Society due to lack of funds and means to carry on the activities of the Society as enshrined in the constitution, be forthwith dissolved; and it is further Resolved to appoint a special committee consisting of the following three members of the society;
Rev.Y.John, Rev.A.J.Lutz, and Dr.L.W.Meinzen for purposes of winding up the affairs of the Society; and it is further Resolved to authorise the Chairman to file a copy of this special resolution with the Registrar and to take such steps as may be necessary to give effect to 14/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 this resolution.”
23.A perusal of the above resolution would clearly shows that it has not passed anything with regard to the transfer of its assets and liability to the plaintiff or to declare that the plaintiff is the successor of CACS. Further on 17.08.1991, a memo of settlement was executed between the employee of CACS and CACS Committee, which was marked as Ex.B8, wherein it has been stated that a Special Committee was formed to settle the dues of the employees and nowhere it says that the plaintiff has settled the dues. Only the fund has been settled through the plaintiff, which was received from ILLL. This is not sufficient to claim the successor in title when the property was already transferred by the MELIM in favour of the defendant.
Therefore, the plaintiff cannot claim any relief of permanent injunction as sought for and there is no case made out by the plaintiff, that is the reason why both the Courts below dismissed the case of the plaintiff.
24.In fact the First Appellate Court has extracted the ground raised by the plaintiff and thereafter formulated the question as whether the appeal can be entertained? This question was framed in light of the 23 grounds 15/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 which were extracted in the judgement itself. All the 23 grounds have been answered by considering each and every document in connection with the particular issue and however the defendant has not pin point a single document which was not considered by the First Appellate Court. The learned counsel for the defendant has made averments in the air without pin pointing the document which was not considered by the Courts below. When this Court posed a question that what are the documents and issues raised by the plaintiff before the Trial Court and the First Appellate Court was not considered, he could not able to pin point even a single issue or document which was not considered by the First Appellate Court. Therefore, with regard to the first substantial questions of law is concerned, this Court does not find anything in favour of the plaintiff to decide by holding that the First Appellate Court failed to comply the mandatory requirement of Order 41 Rule 31 CPC. Therefore, the first substantial question of law raised by the plaintiff is decided against him.
25.With regard to the second question of law is concerned, the 16/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 contention of the plaintiff is that though the First Appellate Court allowed the application filed by the plaintiff under Order 41 Rule 28 CPC, he has not given any opportunity to examine the witnesses to mark those documents. When the plaintiff has made a statement that he was not given any opportunity to examine the witness, the First Appellate Court has categorically stated that it is only the plaintiff has not taken any steps to bring his witness for the cross-examination of the defendant. But ironically, the defendant appeared before this Court and admitted those additional documents and he has not raised any issue with regard to the failure of the plaintiff to bring the witnesses into the box for cross-examination. Even the First Appellate Court went through the additional document viz., Exs.A9 to A22 and has given categorical finding. Thus those additional documents are not going to be useful to prove the case of the plaintiff that they are successor in title and thereby for grant of injunction against the suit property.
26.At this juncture, it would be appropriate to extract the relevant 17/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 portion of the First Appellate Court. Paragraph No.15 of the judgment is extracted hereunder:
“15. Learned counsel for the appellant/plaintiff also submitted the arguments on the lines that as per Sec,25(j) of Industrial Dispute Act and, definitions. But admittedly all the Industrial Disputes were settled by consent. The learned counsel for the appellant/ plaintiff in his additional written argument notes raised the contention that during the pendency of this appeal the appellants filed additional 14 documents in support of the claim of successor interest and the relief for permanent injunction which are marked as Ex.A9 to A22. But the above letters and correspondence Ex.A9 to A22 proves that the spiritual, social and ministerial functions of the CACS and CMCI. The appellant/ plaintiff has not proved the additional documents Ex.A9 to A22 by way of adducing oral evidence and examining the author of the documents. The appellant/plaintiff has not whispered how and when he received the documents from whom to establish the authenticity. Except Ex.A21 the self serving document of the appellant/ plaintiff all other letters and communications were related to the Ministerial functions of the Institution and the spiritual activities have nothing to do with the administration. Particularly the claim of successor-in-interest and 18/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 possession of the property. The learned counsel for the respondent/ defendant would contend that after inordinate delay and cherished after thought the appellant/ plaintiff produced the documents Ex.A9 to A22 without any proof. The appellant/ plaintiff also has not taken, any steps to adduce any evidence for proving the documents. The absence of proof none of the documents shall be taken into consideration. Further the contention of the respondent/ defendant that the additional documents filed by the appellant plaintiff have no relevancy to the case. It is filed only with an intention to fill up the lacuna at the appellate stage. The additional documents can be considered only after due adjudication before the trial court. The appellant/ plaintiff without giving any opportunity to the respondent/ defendant to challenge the documents filed the documents with an Intention to circumventing the process of the court. Learned counsel cited a decision reported in AIR 1980 Supreme Court page 446, Smt.Pramod Kumarl Bhatia...Vs... Om Prakash Bhatia and others “(B) Civil P.C (1908), O.41, R.27 – Reception of additonal evidence – Application for , filed before High Court many years after the suit has been filed – High Court held rightly exercised discretion in refusing the same 19/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 Judgment in F.A.No.165 of 1960, D/-
18.7.1967 (All), Affirmed.” Further the learned counsel for the respondent/defendant would contend that noe of the documents will give any successor in interest to the CACS. Since all the letters and correspondence are the out come of the spiritual and ministerial functions.”
27.A perusal of the above would clearly shows that the additional documents Exs.A9 to A22 have been dealt with by the First Appellate Court. This Court also went through all the additional documents viz Ex.A9 to A22 and do not find error in the judgment with regard to the non-examination of the witness. The defendant supposed to have raised the point that he was not allowed to cross examine the witness, but he fairly admitted those additional documents. Accordingly, arguments were put forth by the defendant before the First Appellate Court regarding the additional documents filed by the plaintiff and the First Appellate Court has given categorical finding and came to the conclusion that all these documents have not proved in any manner to declare the plaintiff as successor in title. 20/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011
28.This Court also agree with the finding given by the First Appellate Court as there is not perverse in the same and accordingly, second question of law is answered.
29.In the result, the Second Appeal is dismissed confirming the judgement and decree passed by the First appellate Court. Consequently, connected miscellaneous petitions are closed. No costs.
30.01.2023 (½) rst Index : Yes / No Internet : Yes / No Speaking Order / Non Speaking Order To
1.The Additional District Judge, Fast Track Court – V, Chennai.
2.The I Assistant Judge, Fast Track Court – I, Chennai.
21/22 https://www.mhc.tn.gov.in/judis S.A.No.584 of 2011 KRISHNAN RAMASAMY, J.
rst S.A.No.584 of 2011 and M.P.No.1 of 2011 & M.P.No.1 of 2012 30.01.2023 (½) 22/22 https://www.mhc.tn.gov.in/judis