Madras High Court
G.Prabhakaran vs Rev. J.Chella Durai
Author: M.Govindaraj
Bench: M.Govindaraj
AS (MD) NO.100 OF 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23 / 11 / 2020
DELIVERED ON : 12 / 07 / 2021
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
AS (MD) NO.100 OF 2020
AND
CMP (MD) NOS.3405 AND 3865 OF 2020
1.G.Prabhakaran
2.S.Martin Devaraj
3.S.R.Andrews Ruben ... Appellants / Plaintiffs
Vs.
1.Rev. J.Chella Durai
2.D.Wilfred Daniel ... Respondents 1 &2 /
Defendants 3 & 8
3.The Bishop / President
Tamil Evangelical Lutheran Church
Tiruchirappalli,
Having office at Post Box No.86,
TELC Central Office, Tranquebar House,
Tiruchirappalli – 1.
4.Church Council
1/61
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AS (MD) NO.100 OF 2020
Tamil Evangelical Lutheran Church
Tiruchirappalli,
Represented by its Secretary
Having office at Post Box No.86,
TELC Central Office, Tranquebar House,
Tiruchirappalli – 1.
5.Rev. J.Jacob Sundar Singh
6.Rev. S.Samuel Abraham
7.R.Benjamin Jeyaraj
8.A.Mehar Antony
9.K.Albert Inbaraj
10.D.Thanga Pazham
11.P.M.Baskaran ... Respondents 3 to 11 /
Defendants 1&2, 4 to 7
and 9 to 11
PRAYER: First Appeal filed under Section 96 read with Order 41 Rule 1 of
CPC against the judgment and decree passed in I.A.No.04 of 2019 filed
under Order VII Rule 11 CPC to reject the plaint in O.S.No.212 of 2019 on
the file of learned First Additional District Judge (PCR) Tiruchirapalli, dated
23.01.2020 (filed under Section 96 Order XLI Rule 1).
For Appellants : Mr.Isaac Mohanlal
Senior Counsel
for Ms.K.R.Shiva Shankari
For Respondents 1&2 : Mr.P.Arun Jagatram
For Respondent 3 : Mr.R.Baskaran
For Respondent 8 : Mr.T.Lajapathi Roy
For Respondent 10 : Mr.Duraikkan S. Philip
JUDGMENT
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https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 This First Appeal has been preferred against the order passed under Order VII Rule 11 of Code of Civil Procedure rejecting the plaint.
2.The appellants are the unelected Members in the election conducted for Church Council of Tamil Evangelical Lutheran Church. They filed a Suit for a relief of declaring that the election of the defendants 3 to 10 as Members of the Church Council of Tamil Evangelical Lutheran Church of the 43rd Synod held on 6th and 7th September 2019 as ultravires the Church Rules, as null and void and for consequential permanent injunction restraining them from functioning as Members of the Church Council and for mandatory injunction from conducting fresh election for the Church Council. The Trial Court rejected the plaint on the ground that this is a clear abuse of process of law as it is a re-litigation, without cause of action for non-impleading the necessary parties and for the lapse of not taking leave under Order I Rule 8 CPC for filing the Suit.
3.The appellants would attack the order of the rejection on the 3/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 grounds that Suit cannot be rejected for non-joinder of parties, non-obtaining leave to sue, non-payment of proper court fee and the erroneous assumption that there is no cause of action.
4.According to the appellants, the plaint shall be read as a whole to find out as to whether there is any cause of action to prefer the Suit or not? It cannot be read in bits and pieces to arrive at a conclusion that there is no cause of action. Secondly, an application under Order I Rule 8 CPC can be filed at any stage for the Suit and it is a procedural requirement that the plaint cannot be rejected on this ground. Further, non-payment of proper court fee is not a ground for rejection automatically, but the Court shall give an opportunity to the plaintiffs to pay proper court fee and in default only, the plaint can be rejected.
5.The plaintiffs have already filed applications for amendment of plaint; for leave to sue under Order I Rule 8 CPC; for adding a party under Order I Rule 10 CPC; and for payment of proper court fee. But the Trial Court, without disposing of these interlocutory applications, has rejected the 4/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 plaint. On this ground also, the appellants prays to set aside the order of rejection.
6.The short facts leading to the Suit is that the Tamil Evangelical Lutheran Church (in short “TELC”) is a Christian Church. It is governed by TELC Rules, which were brought into existence in the year 1919. As per the Rules, several Committees, such as Pastorate Committee (PC), District Council (DC), Synod Continuation Committee (SCC), Church Council (CC) are constituted. President of the Church Council is the Bishop. Election to these Committees shall be as per the procedures laid down in TELC Rules. There were litigations between the Members of Church Council with regard to election to these Committees and election to the President of the Church Council / Bishop.
7.The above litigations went up to the Hon'ble Supreme Court. A Division Bench of this Court appointed the Hon'ble Mr.Justice J.Kanakaraj (Retired) as Judge Administrator, in LPA Nos.3 and 5 of 2015, dated 5/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 29.04.2016, for the purpose of conducting election. When an application was filed to remove the Judge Administrator, the Hon'ble Supreme Court, dismissed the application vide MA No.2726 of 2018 and directed the parties to approach the Division Bench of this Court in LPA Nos.3 and 5 of 2015 for all further orders. Para 7 of the order of the Division Bench of this Court dated 29.04.2016 in LPA Nos.3 and 5 of 2015 and MP Nos.1 and 1 of 2015 reads as under:
“7. In view of the stalemate that arose earlier, this Court by order dated 14.12.2010 in C.R.P.(MD) Nos.2385 and 2386 of 2010 etc., was pleased to appoint the Hon'ble Mr.Justice J.Kanakaraj (Retd.) as an Administrator to supervise the administration along with the Church Council and the then Bishop. Subsequently, the Administrator had conducted the election for the Triennium 2013-2016 on 26.4.2013, which is coming to an end on 2.5.2016. Although the 6/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Administrator had conducted the election for the Triennium 2013-2016, even after he was relieved from the said assignment, the Hon'ble Apex Court in Civil Appeal No.8458 of 2014 (arising out of W.A.No.481 of 2007) by its order dated 3.9.2014, has directed the same Administrator to ensure that no alienation takes place without his permission from the Bishop. Therefore, keeping in mind the larger interest of the members of TELC and also as a temporary and stop-gap arrangement, we are again inclined to appoint the Hon'ble Mr.Justice K.Kanakaraj (Retd.,) as the Administrator to supervise the administration, till further orders, on the following terms :-
i. The Judge Administrator may avail the assistance of one or more persons of TELC as he may consider necessary in the discharge of his duties. The remuneration of such 7/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 persons shall be fixed by him and the same shall be paid out of the funds of the TELC.
ii. The Judge Administrator may avail the services of an Advocate as well as an Accountant to assist him in the discharge of his functions and his remuneration of such Advocate and Accountant is fixed at Rs. 25,000/- (Rupees twenty five thousand) each and the same shall be paid out of the funds of the TELC.
iii. The Judge Administrator may be empowered to discharge the secular powers of the President/Bishop.
iv. The Judge Administrator may be empowered to exercise the powers of the President, Vice President, Secretary and Treasurer of the Church Council of TELC for proper administration of TELC.
v. The Judge Administrator may be empowered to operate the Bank accounts of 8/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 the TELC, disburse funds for all routine and regular expenses and receive the rents and other amounts due and payable to TELC and authorise one or more employee/staff of TELC to give receipts for the payments so received and to remit such, payments into the Bank accounts of TELC and maintain accounts.
vi. All the employees / staff of TELC shall render full cooperation and assistance to the Judge Administrator to discharge his duties.
vii.The actions of the Judge Administrator shall not be called in question in any Court other than before this Hon'ble Court, as Letters Patent Appeals are pending.
viii.The Judge Administrator shall be paid a remuneration of Rs.1,00,000/- (Rupees one lakh only) per month, apart from travelling, boarding and lodging expenses and 9/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 also entitled for reimbursement of the expenses incurred by him towards the discharge of his duties.
ix. The Judge Administrator is at liberty to avail the assistance of police as well as educational authorities and all necessary assistance shall be provided by them for discharge of his duties.
x. The Judge Administrator is at liberty to seek appropriate directions from this Hon'ble Court as and when necessary by filing a memo.”
8.Thereafter, the learned Judge Administrator demitted the office and thereafter, the Hon'ble Supreme Court appointed the Hon'ble Mr.Justice K.Venkatraman (Retired) as interim Administrator in the application filed by the second plaintiff herein in SLP (C) No.13243 of 2017 against the order passed in LPA Nos.3 and 5 of 2015 dated 07.12.2016, on 15.02.2017.
Thereafter, by order dated 30.01.2018 of the Hon'ble Supreme Court, the 10/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Hon'ble Mr.Justice K.Venkatraman (Retired) was directed to continue in the post to administer the Society till such time the elections are held in accordance with law.
9.It is noted that several applications were filed in LPA No.3 of 2015. However, directions were issued to continue the election process. Accordingly, election was conducted to elect the President / Bishop on 7 th, 8th and 9th of January 2019 at Central Office of TELC, Trichy. One Rev. Daniel Jayaraj was elected as XIII Bishop of TELC on 09.01.2019 and the consequential consecration has been held on 14.01.2019. The Division Bench of this Court has recorded the same by its order dated 24.01.2019 in LPA Nos.3 and 5 of 2015.
10.Similarly, in CMP No.3564 of 2019 in LPA No.3 of 2015, a Division Bench of this Court, on 21.03.2019, has granted permission to the Judge Administrator to initiate appropriate action against the concerned persons / alleged violators, who illegally sold the properties, misappropriated 11/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 the money and indulged in other illegal actions. The order of the Division Bench of this Court in CMP No.3564 of 2019 dated 21.03.2019 in LPA No.3 of 2015 is extracted hereunder:
“This Court in the order dated 29.04.2016 in LPA.Nos.3 & 5 of 2015 and MP.Nos.1 & 1 of 2015, in paragraph No.7, it has observed as follows :
“7. In view of the stalemate that arose earlier, this Court by order dated 14.12.2010 in C.R.P.(MD) Nos.2385 and 2386 of 2010 etc., was pleased to appoint the Hon'ble Mr.Justice J.Kanakaraj (Retd.) as an Administrator to supervise the administration along with the Church Council and the then Bishop. Subsequently, the Administrator had conducted the election for the Triennium 2013-2016 on 26.4.2013, which is coming to an end on 2.5.2016. Although the Administrator had conducted the election for the Triennium 2013-2016, even after he was relieved from the said assignment, the Hon'ble 12/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Apex Court in Civil Appeal No.8458 of 2014 (arising out of W.A.No.481 of 2007) by its order dated 3.9.2014, has directed the same Administrator to ensure that no alienation takes place without his permission from the Bishop. Therefore, keeping in mind the larger interest of the members of TELC and also as a temporary and stop-gap arrangement, we are again inclined to appoint the Hon'ble Mr.Justice K.Kanakaraj (Retd.,) as the Administrator to supervise the administration, till further orders, on the following terms :-
i. The Judge Administrator may avail the assistance of one or more persons of TELC as he may consider necessary in the discharge of his duties. The remuneration of such persons shall be fixed by him and the same shall be paid out of the funds of the TELC.
ii. The Judge Administrator may avail the services of an Advocate as well as an 13/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Accountant to assist him in the discharge of his functions and his remuneration of such Advocate and Accountant is fixed at Rs. 25,000/- (Rupees twenty five thousand) each and the same shall be paid out of the funds of the TELC.
iii. The Judge Administrator may be empowered to discharge the secular powers of the President/Bishop.
iv. The Judge Administrator may be empowered to exercise the powers of the President, Vice President, Secretary and Treasurer of the Church Council of TELC for proper administration of TELC.
v. The Judge Administrator may be empowered to operate the Bank accounts of the TELC, disburse funds for all routine and regular expenses and receive the rents and other amounts due and payable to TELC and 14/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 authorise one or more employee/staff of TELC to give receipts for the payments so received and to remit such, payments into the Bank accounts of TELC and maintain accounts.
vi. All the employees / staff of TELC shall render full cooperation and assistance to the Judge Administrator to discharge his duties.
vii.The actions of the Judge Administrator shall not be called in question in any Court other than before this Hon'ble Court, as Letters Patent Appeals are pending.
viii.The Judge Administrator shall be paid a remuneration of Rs.1,00,000/- (Rupees one lakh only) per month, apart from travelling, boarding and lodging expenses and also entitled for reimbursement of the expenses incurred by him towards the discharge of his duties.
ix. The Judge Administrator is at 15/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 liberty to avail the assistance of police as well as educational authorities and all necessary assistance shall be provided by them for discharge of his duties.
x. The Judge Administrator is at liberty to seek appropriate directions from this Hon'ble Court as and when necessary by filing a memo.”
10. The Hon'ble Supreme Court of India in the order dated 30.01.2018 in SLP(C) Nos.13243/2017, it has issued the following directions, by consent of the parties : “SLP(C) No.13243/2017.
The following agreed directions are passed :
1. The new Administrator in place of the earlier administrator would continue to administer the Society till such time the elections are held in accordance with law.
2. The interim status quo order is lifted to facilitate the functioning of the Administrator.16/61
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3. Elections be held as expeditiously as possible.
4. The remuneration of the new Administrator taking into consideration the work and the efforts required shall be Rs.
2,50,000/- (Rupees Two Lakh Fifty Thousand only) per month apart from out of pocket expenses.
5. In case of any other directions required, parties/Administrator can approach the Madras High Court. The special leave petition stands disposed of in terms of the aforesaid directions. Pending application(s), if any, stand disposed of.”
11. In the light of the above cited judgment of Hon'ble Supreme Court and placing reliance on condition No.1 of the above judgment, wherein it states that “new Administrator [Hon'ble Mr.Justice Mr.K.Venkatraman (Retd)] in place of the earlier administrator would continue 17/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 to administer the Society till such time the elections are held in accordance with law”, the point urged by the learned counsel appearing for the 12th respondent is liable to be rejected and accordingly the said plea raised by the 12th respondent is rejected. The learned Judge Administrator, in the light of the above cited Church Rules, is at liberty to initiate appropriate action against the concerned persons/alleged violators engage in mismanagement of TELC funds and properties.
12. With the above observation and directions, this miscellaneous petition is disposed of accordingly. “
11.When an application was filed for an interim direction, the Hon'ble Supreme Court in MA No.907 of 2019 in SLP (C) 13243 of 2017 directed the Judge Administrator to file a report about the current position, by its order dated 10.05.2019.
12.It is to be noted that on 08.05.2019, a Circular was issued to all the Members concerned for the election of Members to the Church Council and it was conducted on 6th and 7th September 2019 electing the contesting defendants as the Members of the Church Council and the 7th 18/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 defendant as Secretary and 11th defendant as Treasurer of the Church Council. Thereafter, orders were passed in MA No.907 of 2019 in SLP (C) 13243 of 2017, on 17.09.2019, wherein, the Hon'ble Supreme Court has observed as under:
“1.Learned counsel for the Administrator states that the elections have been held and he has handed over charge to the elected representatives.
2.Learned counsel for the applicants states that the applicants have some reservations qua the manner of elections, but for that he states that he will take appropriate proceedings, if so advised. Insofar as running of the affairs of the Church is concerned, that will naturally be in accordance with the rules.
3.In view of the above, the role of the Administrator comes to an end.
4.Miscellaneous Application No.907 of 2019 is disposed of, accordingly.
5.We may note that as per learned counsel appearing 19/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 for respondent No.12, who has now been elected as the Secretary in the present Church, the Administrator had initiated certain actions in respect of the 46 properties, which are allegedly improperly dealt with. Insofar as this aspect is concerned, a decision will be taken for future course of action in accordance with the rules.”
13.In para 2 of the above order, the Hon'ble Supreme Court has recorded that the applicants, namely, the first and second plaintiffs herein, have some reservations qua the manner of elections, but for that, they have stated that they will take appropriate proceedings, if they are so advised. Based on these observations, the plaintiffs herein have preferred the above Suit on the ground that the Hon'ble Supreme Court has given liberty to file a Suit questioning the election.
14.Now that, it is to be seen that whether the plaint filed as such by the plaintiffs is maintainable or to be rejected.
15.Mr.Isaac Mohanlal, learned Senior Counsel appearing for the 20/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 appellants contended that as stated supra, non-joinder of parties, non payment of proper court fee, adding a party in a different name, non filing of petition under Order I Rule 8 CPC seeking leave to sue are not grounds for rejection of plaint. In so far as Order I Rule 8 CPC is concerned, it can be filed at any time. In support of this proposition, he would rely on a judgment of the Hon'ble Supreme Court in KRISHNAN VASUDEVAN AND OTHERS VS. SHAREEF AND OTHERS [2005 (12) SCC 180]; judgment of this Court in REV. DR. V.DEVASAHAYAM BISHOP VS. ST. GEORGE CATHEDRAL TRUST [2013 SCC ONLINE MAD 3728] and another judgment of this Court in THE VICTORIA EDWARD HALL VS. M.SAMRAJ AND 5 OTHERS [2001 (3) MLJ 39]. According to him, Order I Rule 8 CPC is only a procedural requirement and an application can be filed at any time even at the time of framing the issues. Even otherwise, this can be framed as an issue and tried. All the more, it will be a ground for dismissal of the plaint and not for the rejection of the plaint.
16.He further submitted that the plaintiffs have filed interlocutory applications viz., (i) I.A.No.5 of 2019 to permit them to sue the 21/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Bishop representing TELC Christian Members of TELC; (ii) I.A.No.6 of 2019 to permit them to sue the Church Council representing the numerous Christian Members of the TELC; and (iii) I.A.No.7 of 2019 to permit the plaintiffs to sue in their representative capacity representing the Members of the TELC. Without disposing the above interlocutory applications, the Trial Court ought not to have rejected the plaint on the ground that the Suit was filed without leave of the Court.
17.Secondly, the learned Senior Counsel for the appellants contended that no plaint can be rejected on the ground that the plaintiffs have not paid proper court fee. When the plaintiffs have not paid proper court fee, time has to be given to the plaintiffs for payment of proper court fee, as per Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, 1965. For the said proposition, the learned Senior Counsel would rely on a judgment of Hon'ble Supreme Court in TAJENDER SINGH GHAMBHIR AND ANOTHER VS. GURPREET SINGH AND OTHERS [2014 (10) SCC 702]. However, he would submit that the plaintiffs have filed I.A.No.13 of 2019 seeking permission of the Court for payment of proper court fee. But without 22/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 considering the same, the learned Trial Judge has proceeded to reject the plaint.
18.Apart from the above, the learned Senior Counsel for the appellants would assail the order of the Trial Court on the ground that non-joinder of a party is not a ground available for rejection of plaint under Order VII Rule 11 CPC. Only because the Church Council is impleaded as a a party representing TELC, it cannot be said that necessary party has not been impleaded. As per the Rules, Church Council is a Supreme body and it is represented by the Secretary. Therefore, when the Church Council is added as a party, represented by its Secretary, it amounts to effectively defend the TELC. Even if it is found that the plaint is defective, it can be amended as it is a curable defect. The Trial Court should allow the same. However, without applying mind to the said fact, the Trial Court has rejected the plaint for non- joinder of TELC as a party. Even before rejection of plaint, the plaintiffs have filed applications in I.A.Nos.5, 6, 7 and 8 of 2019 for grant of leave to sue against the Bishop; against the Church Council; and to permit them to sue in the representative capacity representing the Christian Members of TELC. 23/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Without considering the same, the Trial Court has rejected the plaint hastily.
19.In so far as the cause of action is concerned, according to the learned Senior counsel for the appellants, cause of action is a bundle of facts. When the Church Rules, which is applicable to the election of Members to the Church Council, has been described in the body of the plaint, it shall be construed that the plaintiffs have cause of action to maintain the suit. The Trial Court, on the other hand, without reading the plaint as a whole, had rejected the plaint on the ground that TELC and the Judge Administrator were not impleaded as parties to the suit. In fact, it is clearly explained that the Administrator has become functus officio after the order of the Hon'ble Supreme Court and no relief is sought against him, he is not a necessary party and no cause of action arises against him. However, they have filed applications for amendment to implead TELC also and therefore, the rejection on the ground that there is no cause of action is also not sustainable and therefore, he would contend that the order passed by the Trial Court rejecting the plaint is liable to be set aside.
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20.Defending the order of the Trial Court, Mr.Duraikkan S.Phillip, learned counsel for the 10th respondent would contend that the entire body of the plaint revolves around the concluded election process. Admittedly, the plaintiffs have participated in the election conducted for electing the Members of the Church Council and after being unsuccessful, have filed this application making scandalous allegations against the Judge Administrator. Even though the completion of election was recorded before the Hon'ble Supreme Court, they have raised various allegations against the conduct of election. The Hon'ble Supreme Court has simply observed the statement made by the counsel for the applicants and has not granted any liberty to agitate against the same. Therefore, they have no legal right to maintain the Suit. Further, the entire allegations were made against the Judge Administrator. But the Judge Administrator was not impleaded as a party. In the absence of the Judge Administrator, being a party to the Suit, the Suit is without cause of action and liable to be rejected. He would further contend that when a Suit is filed in the representative capacity, it is mandatory that the entire electorate of the Church shall be impleaded, otherwise, leave shall be obtained from the Court under Order I Rule 8 CPC. There is no escape to 25/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 maintain the Suit without obtaining the leave of the Court. Such a Suit is not maintainable and is liable to be struck off. Since the election to the post of Bishop was recorded by the Division Bench of this Court and the process of election was accepted by the plaintiffs, they cannot now turn around and challenge the same, when it comes to election of Church Council. The plaint is hit by doctrine of acquiescence. The filing of the Suit challenging the election, which was monitored by this Court and the Hon'ble Supreme Court, it amounts to re-litigation and thereby, it is a clear abuse of process of law. Therefore, rejection of plaint made by the Trial Court is absolutely in order and need not be interfered.
21.Mr.T.Lajapathi Roy, learned counsel for the eighth respondent would support the contention of the defendants 4 to 8 and argued that the plaintiffs have made allegations of fraud against the Judge Administrator. When the election conducted by the Judge Administrator was recorded by the Hon'ble Supreme Court and the Judge Administrator was released from his duties, his functioning and the election conducted by him cannot be questioned after he demitted his office. If at all the plaintiffs have 26/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 any grievance, they should agitate it before the Hon'ble Supreme Court, when they filed a petition for direction against the Circular issued for conduct of election to the Members of the Church Council. Having kept quite before the Hon'ble Supreme Court, they cannot raise it now before the Trial Court, which amounts to re-litigation and abuse of process of law. The plaint filed on the basis of scandalous allegations made against the Judge Administrator shall be struck off as abuse of process of law.
22.In support of his contention, Mr.T.Lajapathi Roy, learned counsel for the eighth respondent would rely on a judgment of the Hon'ble Supreme Court in CANARA BANK VS. P.SELATHAL AND OTHERS [2020(2) MLJ 591] and a judgment of this Court in KAIRUNNISA BEGUM VS. B.N.SREEDHARA MURTHY [2013 (3) MADWN (CIVIL) 717].
23.I have heard the submissions made by the learned counsel on either side.
24.Facts are admitted. It is not in dispute that elections were conducted as ordered by this Court and the Hon'ble Supreme Court. At the 27/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 first instance, the Hon'ble Mr.Justice J.Kanakaraj (Retired) was appointed as Judge Administrator and he completed the election to the Synod Continuation Committee (SCC) for the year 2016-2019. The Hon'ble Mr.Justice K.Venkatraman (Retired) was appointed by the Hon'ble Supreme Court as interim Administrator by its order dated 15.12.2017. His appointment was continued by order dated 30.01.2018 till the elections are completed to the Committees under TELC. Therefore, it is very clear that as and when the parties had any grievance, they shall approach the Division Bench in LPA Nos.3 and 5 of 2015 or the Hon'ble Supreme Court in SLP (Civil) No.13243 of 2017. At every stage, there were applications and the Division Bench of this Court as well as the Hon'ble Supreme Court have issued suitable directions to the Judge Administrator for the conduct of elections. If at all the plaintiffs have any grievance, they should approach the appropriate forum to redress their grievances.
25.It is required to be noted that in the order in M.A.No.907 of 2019 in SLP (Civil) No.13243 of 2017 dated 17.09.2019, the Hon'ble Supreme Court has observed as under:
28/61
https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 “1.Learned counsel for the Administrator states that the elections have been held and he has handed over charge to the elected representatives.
2.Learned counsel for the applicants states that the applicants have some reservations qua the manner of elections, but for that he states that he will take appropriate proceedings, if so advised. Insofar as running of the affairs of the Church is concerned, that will naturally be in accordance with the rules.
3.In view of the above, the role of the Administrator comes to an end.
4.Miscellaneous Application No.907 of 2019 is disposed of, accordingly.
5.We may note that as per learned counsel appearing for respondent No.12, who has now been elected as the Secretary in the present Church, the Administrator had initiated certain actions in respect of the 46 properties, which are allegedly improperly dealt with. Insofar as this aspect is concerned, a decision will be taken for future 29/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 course of action in accordance with the rules.”
26.In para 1 of the above order, it is clearly recorded that the elections have been held and the Administrator had handed over charge to the elected representatives, which means the process of election is completed and the elected Members have taken charge. The validity of election has been endorsed by the Hon'ble Supreme Court and no Court other than the Supreme Court can vary or modify that order. If at all the plaintiffs 1 and 2, who are appellants and applicants before the Hon'ble Supreme Court had any grievance, they should have agitated the same then and there or should have filed an application for not accepting the report submitted by the Judge Administrator. Whereas, the learned counsel for the plaintiffs 1 and 2 has stated that they have some reservations in the manner of elections and that they will take appropriate proceedings, if they are so advised. It is only an observation of a statement made by the learned counsel for the plaintiffs 1 and 2 and it cannot be construed that liberty was granted to the plaintiffs to challenge the election. Only because an observation was made in the order, it will not confer any right or create any legal right on the plaintiffs to file a 30/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 fresh Suit against a concluded election.
27.As such, I do not find any legal right created in favour of the plaintiffs in the order of the Hon'ble Supreme Court dated 17.09.2019. Further, it is substantiated in para 5 of the very same order that the Hon'ble Supreme Court has recognised the election of the 12th respondent / 7th defendant in the present Suit as Secretary of the Church. A further direction was issued to continue the actions initiated by the Judge Administrator. The said direction will amplify the factum that the elections were conducted in a legal manner and it was recognised. Further, the 12th respondent / 7th defendant who has been recognised as Secretary and was directed to continue the action initiated by the Administrator means that functions of Administrator against violations, were approved as legal and it cannot be questioned much less, no allegation shall be levelled against the Administrator. When the Administrator is relieved from his duty, on completion of his task, it cannot be questioned afterwards. In that view of the matter, any litigation against the concluded election under the monitoring of the Hon'ble Supreme Court amounts to re-litigation and thereby abuse of 31/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 process of law.
28.It is well settled that a litigant shall file any litigation against whom he has grievance or on whose action he is aggrieved. It cannot be filed against a stranger or a third party. A reading of the entire plaint shows that para 1 to 23 describes the constitution and functioning of TELC. Apart from this description, almost all the paragraphs makes allegations against the actions of the Judge Administrator. It is stated that he was not impleaded as a party, as he has become functus officio and no relief was sought against him. But entire factum revolves only against his action. The entire cause of action is based on the alleged irregularities committed by him. Hence, in the Suit, he is the necessary party and he can only defend himself. His actions cannot be defended by a newly elected body. If such a Suit is filed, it amounts to filing a Suit against a third party and it will result in a shadow fight. As such, not impleading the Judge Administrator, after making entire allegations against his conduct, does not give rise to any cause of action to the plaintiffs against the present Office Bearers whose election has been endorsed by the Hon'ble Supreme Court. As such, the Suit is without cause of action. 32/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020
29.The allegations made in paras 27, 28, 31, 32, 33, 34, 38 to 40, 42, 44 to 46, 54, 55, 57 and 60 of the plaint are scandalous in nature. Such allegations made against the Administrator, whose action has been approved by a Division Bench of this Court, by its order dated 24.01.2019 and the Hon'ble Supreme Court, by its order dated 17.09.2019 is nothing but, abuse of process of law. The allegations are malicious in law as well as on facts. From the averments of the plaint, it is explicit that the plaintiffs knowing well that they are malicious have made it. The plaintiffs at para 57 of the plaint averred as under:
“they were compelled to make these allegations against the learned Judge Administrator, who marred the election of the Church Council in order to bring men of his choice to the Committee.
It is also averred at para 60 of the plaint that the election for the present Members is because of the arbitrariness and malafides of the Judge 33/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Administrator. Such allegations are very scandalous, unreasonable, unnecessary and vexatious. Apart from that, allegation of fraud had been attributed against the Judge Administrator. It is not only continuous against the order passed by the Division Bench of this Court, which is recorded the election, as well as the Hon'ble Supreme Court.
30.It is required to be noted that the Division Bench of this Court has recorded in its order dated 24.01.2019 in LPA Nos.3 and 5 of 2019 that the parties have no objection for recording the election of the Bishop conducted on 7th, 8th and 9th of January 2019 and the consecration of Bishop took place on 14.01.2019. The order of the Division Bench dated 24.01.2019 in LPA Nos.3 and 5 of 2015 reads as under:
“Learned counsel appearing for the Administrator, referring to the fifth memo filed by the learned Judge Administrator of TELC dated 24.01.2019, submitted that after issuing the election notification for electing the Bishop of Tamil Evangelical Lutheran Church on 21.08.2018 34/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 followed by circulars and notifications dated 24.08.2018, 27.08.2018 and 30.08.2018, election was scheduled to be conducted on 7 th , 8 th and 9 th of January 2019 at the Central Office of TELC, Trichy. He would submit that the Administrator has made all preparatory measures for the smooth conduct of the election and accordingly, election was peacefully conducted on the said dates without any disturbance as per the rules of the TELC and Rev. Daniel Jayaraj was elected as the XIII Bishop of the Tamil Evangelical Lutheran Church on 09.01.2019 and the entire election proceedings were videographed and all the process involved in both conduct of the election and counting of votes were made transparent to all the members and none of them expressed any grievance whatsoever. Learned counsel would further submit that the consecration of Bishop 2 took place on 14.01.2019 at Tharangambadi TELC Church as per the traditional custom of TELC.
2.Since the learned counsel appearing for Administrator submitted that Rev. Daniel Jayaraj was 35/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 elected as the XIII Bishop of the Tamil Evangelical Lutheran Church on 09.01.2019, we record the election conducted on 7 th , 8 th and 9 th of January 2019 and that Rev. Daniel Jayaraj as the XIII Bishop of the Tamil Evangelical Lutheran Church and the consequential consecration of Bishop that took place on 14.01.2019 at Tharangambad TELC Church as per the traditional custom of TELC.
3.Call on 21.02.2019. “ Having kept quiet before the Division Bench of this Court, making such wild and scandalous allegations in the plaint is a clear abuse of process of law.
31.It is pertinent to note that the plaintiffs 1 and 2 are not new to the litigation. They have filed application before the Hon'ble Supreme Court in respect of the very same election process. They have approached the Hon'ble Supreme Court time and again and obtained orders. In fact, most of the litigations were initiated by them. Therefore, they are very much aware of 36/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 the legal process and proper framing of the Suit. Though, in all the previous litigations, they have impleaded TELC as a party, in the present Suit, they have omitted to implead TELC. It is contended by them that Church Council is a Supreme body and therefore, impleading of Church Council alone is enough. In fact, TELC is represented by its Secretary, who should be the Member of the Church Council and elected as a Secretary of the Church Council. The entire election is based on TELC Rules. Having claimed violations of Rules of TELC and having sued TELC in all their previous rounds of litigation, not making TELC as a party, must be deliberate in order to get emergent orders by misleading the Courts and with an intention to prolong the litigation and to achieve the ulterior object. It is also pertinent to note that a clear direction was issued by the Madurai Bench of this Court directing the plaintiffs to approach the District Court, Trichy. In that event, the plaintiffs must have filed the Suit before the designated Court and paid proper court fee. Filing the Suit before District Munsif Court itself disclose the actions of the plaintiffs are not above board.
32.It is true to state that filing of application under Order I Rule 37/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 8 CPC for impleading a party and application for payment of proper court fee are curable. But, when it is made with a deliberate intention of protracting the litigation and unnecessarily keep the Damocles Sword hang over the heads of the defendants, it shall be nipped off at the bud itself.
33.The Hon'ble Supreme Court in CANARA BANK VS. P.SELATHAL AND OTHERS [2020 (2) MLJ 591] has observed as under:
“7.3 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:
“5.We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the 38/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits….” 7.4 In the case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706, this Court in paras 13 has observed and held as under:39/61
https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 “13.While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possible accrue.” 7.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of “cause of action” as follows:
“12.A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his 40/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which is not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.” 41/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 7.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
“11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled.
If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud 42/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam (supra).” 7.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions 43/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of 44/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 7.8 In the case of Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.” Thus, the intention of the plaintiffs by not impleading the TELC is deliberate abuse of process of law.
34.The judgments relied on by the learned Senior Counsel for the appellants to the proposition that filing of application under Order I Rule
8 CPC is procedural and it can be filed at any stage is concerned, it is well settled principle that when a Suit is filed against an organization, leave to sue shall be obtained from the Court. There is no escape on the pretext that it is 45/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 procedural in nature.
35.The High Court of Delhi in its judgment in GOLESH KUMAR VS. GANESH DASS CHAWLA CHARITABLE TRUST [MANU/DE/8558/2006] has categorically held that though there is no escape from getting a leave to sue against an organization, before filing the plaint, it is necessary to implead the necessary party in the suit. Paras 7 and 8 of the said judgment, reads as under:-
“6. The Courts have insisted upon due compliance to the provisions of Order XXXI Rule 2 of the Court. Even where suits are instituted by and on behalf of the trust, it was held that willing trustees should be joined as plaintiffs while all other unwilling trustees should be joined as defendants. Thus, the suit without inclusion of all the trustees members of the trust would not be maintainable where either a suit is instituted or is filed against the trust.
7. Another very pertinent fact of the case is that the defendants had taken objection in regard to maintainability 46/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 of the suit at the very first available opportunity in unambiguous terms. They had taken this objection in the written statement filed by them. Despite such warning, the plaintiff took no steps to amend his plaint though the suit remained pending for more than five years before the Trial Court. The conduct of the plaintiff is such which cannot be ignored by the Court even if Order XXXI Rule 2 of the Code of Civil Procedure is construed and understood liberally. The discretion of the Court has to be exercised in consonance with the settled principles of law. A party who intentionally sleeps over its rights or remedies available to it in law, cannot be heard to say that the Court should exercise discretion in its favor particularly when a valuable right has accrued in favor of the other side.”
36.It is necessary to refer to the judgment of a Division Bench of this Court in KISHORELAL ASERA VS. HAJI ESSA ABBA SAIT ENDOWMENTS REP. BY ITS TRUSTEES [2003 (3) CTC 209] wherein it is observed as under:
47/61
https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 “14. The objection on behalf of the defendants is that the suit is not maintainable, since on the date of the trial, there was only one Trustee out of the five Trustees of the plaint Trust and the remaining existing Trustees ought to have been impleaded. In this context, it has to be pointed out in paragraph 1 of the plaint reads as follows :
"Plaintiff is Haji Essa Abba Sait Endowments, a public charitable trust and also registered under the Societies Registration Act, having its office at No. 2, Anderson Street, Madras-1 and is represented by the Trustees above mentioned and the plaint is filed in the name of the Trust joining all the Trustees for the time being."
The defendants have not raised any objection as to the representative capacity of the Trustees in their written statements. In the evidence, P.W.I, who was the elected Secretary of the Trust, has stated that at the time of filing the suit, there were five Trustees and at the time of giving 48/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 evidence, only one among them is the Trustee and the others are not Trustees. The suit was filed on 25.2.1983 and the evidence was taken some time in September, 1986. Order 31, Rule 1, C.P.C. dealing with the representation of beneficiaries in suits concerning property vested in Trustees says that the Trustee shall represent the persons so interested. This provision does not disentitle a person who happens to be a Trustee from suing for and on behalf of the Trust. A Trust not being a legal person is not entitled to sue in its own name. Therefore, in a suit for evicting the tenant from the Trust premises, the Trustees jointly or any one of them, when authorized in that behalf by the rest of them, can maintain the suit. Rule 2 of Order 31, C.P.C. says that where there are several Trustees, they shall all be made parties to a suit against one or more of them. There is a distinction drawn between a suit filed by the Trust and the suit against the Trustees. Therefore, if the objection of the appellants/defendants is to be sustained, then their appeal not being against all the Trustees must fail. The appellants had not sought for the particulars from the Trust as to the 49/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 Trustees as on the date of filing of the appeal. The Trust Deed, Ex.A.1 recognizes five Trustees. The Memorandum of Association also consists of a Governing Body consisting of five members. There is no dispute as to the fact that at the time when the suit was instituted then, all the existing five Trustees were representing the Trust. However, any change of the Trustee when the office falls vacant would not mean that the Trust is not represented properly for want of correct cause title. The Court has the power to accept any of the Trustees to represent the Trust in a suit concerning the property vested with the Trust.”
37.In the judgment in POPAT AND KOTECHA PROPERTY VS. STATE BANK OF INDIA STAFF ASSOCIATION [2005 (7) SCC 510] the Hon'ble Supreme Court has observed as under:
“15.In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. (1998 (2) SCC 70) it was held that the basic question to be decided while dealing with an 50/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.
16.The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. (1977 (4) SCC
467).
17.It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487), only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.51/61
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18.In Raptakos Brett & Co. Ltd. v. Ganesh Property (1998 (7) SCC 184) it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable.
19.There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no 52/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 pedantic approach should be adopted to defeat justice on hair- splitting technicalities.
20.Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.”
38.Further, a Division Bench of this Court in V.K.JOHN VS. W.S.SEETHARAM AND OTHERS [2009 (2) LW 460] has observed as under:
“32. It is trite law which has already been settled in catena of decisions including the above referred citations, an application under Order 7 Rule 11(d) can be filed if the allegations in the plaint appeared to be barred by any law 53/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 and for this purpose, the averments made in the plaint alone are relevant and the Court would not be entitled to consider the entire defence at this stage. In so far as Order 7 Rule 11(a) of CPC is concerned, when no cause of action is disclosed, the Courts will not unnecessarily protract the hearing of the suit.“
39.Once the mandatory requirement is not complied with, the Suit is not maintainable in the eyes of law. The contention of the appellants that the Suit is not liable to be rejected under Order VII Rule 11 CPC, is not sustainable. When the Suit is not maintainable as per the provisions of Code of Civil Procedure Code, which is barred by limitation and as such, not maintainable and liable to be rejected. Therefore, I do not find any merits in the contention of the appellants that the order of rejection passed by the Trial Court is not sustainable. Once the election is endorsed by the Hon'ble Supreme Court as well as the Division Bench of this Court, the same cannot be re-agitated, which amounts to re-litigation and an absolute abuse of process of law.
40.The meaningless, unreasonable, scandalous and vexatious 54/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 allegations made against the Officer of the Court, with an intention to cause embarrassment to the Officer of the Court is also clear abuse of process of law as held by this Court in KAIRUNNISA BEGUM VS. B.N.SREEDHARA MURTHY [2013 (3) MAD WN (CIVIL) 717] wherein it is observed as under:
“5.In the judgment reported in M.V.JAYAVELU v. E.UMAPATHY (2010-5-LW 748), after relying upon the judgment of the Honourable Supreme Court reported in AZHAR HUSSAIN v. RAJIV GANDHI (1986 (SUPP) SCC 315), I held as follows:-
"The provisions of Order 7 Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the Court. In appropriate cases, directions can be given by this Court as well as the Court in which the suit is filed not to entertain the 55/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law."
6.In the judgment reported in 1986 (SUPP) SCC 315, the Honourable Supreme Court held as follows:-
"Learned Counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substances, the argument is that the Court must proceed with the trial record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult 56/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent. The word of Damocles need not be kept handing over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law"57/61
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7. In the judgment reported in 2011 (2) MWN (CIVIL) 363, the learned Judge of this court elaborately dealt with the question relating to abuse of process of court and after relying upon the decision reported in K.K.MODI v. K.N.MODI (1998 (3) SCC 573), RANIPET MUNICIPALITY, REP BY ITS COMMISSIONER AND SPECIAL OFFICER, RANIPET v.
M.SHAMSHEERKHAN (1998 (1) CTC 66) and TAMIL NADU HANDLOOM WEAVERS' CO-OPERATIVE SOCIETY v. S.R. EJAZ REP BY HIS POWER AGENT, MURALIDHAR T.BALANI (2009 (5) CTC 710 = 2009 (5) LW 79), held that revision filed to strike off the plaint without filing application under Order VII Rule 11 when it is a clear case of abuse of process of law and when the present suit is a clear attempt of re-litigation is maintainable.
8.In the judgment reported in K.K.SWAMINATHAN v. SRINIVASAGAM (2003 (4) CTC 347), this court held that one of the most abuse of process of court is re-litigation and it is contrary to justice 58/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 to re-litigate the same issue which has already been tried and decided earlier against a person.........”
41.From the foregoing discussions, this Court is of the firm opinion that the present appeal is frivolous and merits no consideration and accordingly, is dismissed. Even though the scandalous allegations made against the learned Judge Administrator warrants imposition of enormous costs, I restrain myself from doing so. Consequently, connected miscellaneous petitions are closed.
12 / 07 / 2021
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
TK
To
The First Additional District Judge (PCR) Tiruchirapalli.
59/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 60/61 https://www.mhc.tn.gov.in/judis AS (MD) NO.100 OF 2020 M.GOVINDARAJ, J.
TK PRE-DELIVERY JUDGMENT MADE IN AS (MD) NO.100 OF 2020 12 / 07 / 2021 61/61 https://www.mhc.tn.gov.in/judis