Madras High Court
N.P.Thangaraj vs Church Of South India on 21 January, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.01.2014 CORAM :
THE HONOURABLE Mr.JUSTICE R.SUBBIAH Application No.3014& 3015 of 2013
1.N.P.Thangaraj
2.J.Asir Packia Singh ... Applicants Vs.
1.Church of South India represented by its Moderator Most Rev.G.Devakadasham, CSI Synod Secretariat, CSI Centre, No.5, Whites Road, Royapettah, Chennai-600 014.
(being sued for itself and for its members)
2.Church of South India Trust Association represented by its Honorary Secretary, CSI Synond Secretariat, CSI Centre, No.5, Whites Road, Royapettah, Chennai-600 014.
3.Most Rev.G.Devakadasham, Moderator of Church of South India, Chairman of Church of South India Trust Association & Bishop of CSI Kanyakumari Diocese, CSI Synod Secretariat, CSI Centre, No.5, Whites Road, Royapettah, Chennai-600 014.
4.Rt.Rev.G.Dyvasirvadam, Deputy Moderator of Church of South India & Member Trustee of Church of South India Trust Association, CSI Synod Secretariat, CSI Centre, No.5, Whites Road, Toyapettah, Chennai-600 014.
5.CSI Kanyakumari Diocese represented by its Vice-President, CSI Diocesan Office No.71A, Dennis Street, Nagercoil-629 001, Kanyakumari District. ... Respondents Application No.3014/2013 filed under Order XIV Rule 8 of OS Rules r/w Order I Rule 8 of CPC praying to permit the applicants to file the above suit on their behalf and on behalf of the members of Church of South India and to sue the first defendant-Church of South India represented by its Moderator in representative capacity.
Application No.3015/2013 filed under Order XIV Rule 8 of OS Rules r/w Section 92 of CPC praying leave of this Court to filed the suit against the second respondent Church of South India Trust Association.
For applicants : M/s.A.Immanuel For Respondents : M/s.C.Robert Bruce (For R1 & R3) M/s.Adrian D.Rozario (For R2) Mr.D.Prabhu Kukunth Arunkumar (For R4) Mr.J.John (For R5) Application Nos.3014 & 3015 of 2013 R.SUBBIAH, J., Application No.3014 of 2013 has been filed under Order XIV Rule 8 of O.S.Rules read with Order I Rule 8 of Civil Procedure Code to permit the applicants to file the suit on their behalf and on behalf of the members of Church of South India and to sue the first defendant - Church of South India represented by its Moderator in representative capacity under Order I Rule 8 of Civil Procedure Code.
2.Application No.3015 of 2013 has been filed under Order XIV Rule 8 of O.S.Rules read with Section 92 of Civil Procedure Code to grant leave to the applicants to file the above suit against the second defendant - Church of South India Trust Association.
3.The applicants are the plaintiffs and the respondents are the defendants in the suit. The applicants/plaintiffs have filed the suit for the following reliefs:-
(a)for declaration to declare that Rule 3 Chapter XI of the Constitution of first defendant - Church of South India that All members of the Church hereby agree that they shall first exhaust all provisions available in this Constitution for the enforcement of their rights under this Constitution and for redressal of their grievances, before they seek legal remedy in a Court of law and members who violate this rule shall ipso facto lose their right to participate in the Government of the Church at all levels is illegal and unconstitutional.
(b)for declaration to declare that the third defendant cannot hold the post of Chairman of second defendant - Church of South India Trust Association and consequently to remove the third defendant from the post of Chairman of second defendant Church of South India Trust Association.
(c)for declaration to declare that the third defendant cannot hold the post of Moderator of Church of South India and consequently to remove the third defendant from the post of Moderator of Church of South India.
(d)for declaration to declare that the third defendant cannot hold the post of Bishop of fifth defendant CSI Kanyakumari Diocese and consequently, to remove the third defendant from the post of Bishop of CSI Kanyakumari Diocese.
(e)to appoint the fourth defendant as Moderator of Church of South India; Chairman of second defendant- Church of South India Trust Association and Bishop-in-charge of fifth defendant- CSI Kanyakumari Diocese; or in the alternative to appoint a senior most serving Bishop of Church of South India as Moderator of Church of South India; Chairman of second defendant Church of South India Trust Association and Bishop-in-charge of fifth defendant - CSI Kanyakumari Diocese;
(f)for permanent injunction restraining the third defendant from functioning as Moderator of first defendant Church of South India, Chairman of second defendant Church of South India Trust Association and Bishop of fifth defendant - CSI Kanyakumari Diocese;
4.These two applications have been filed by the applicants in the representative capacity. In both the applications, this Court has ordered notice.
5.On appearance, the respondents have filed their counter affidavits opposing the applications.
6.Before dealing with the applications, it would be appropriate to extract the averments made in the plaint. The averments made in the plaint, in brief, are as follows:-
6(1)The first applicant/first plaintiff is a baptised, confirmed, communicant, worshiping, subscribing and voting member of CSI Padanthalumudu Church, Kaliayakavilai Pastorate in CSI Kanyakumari Diocese. The first applicant is also the Secretary of CSI Padanthalumudu Church of CSI Kanyakumari Diocese. The applicant is also a member of CSI Kanaykumari Diocesan Council representing CSI Padanthalumudu Church and an elected member of CSI Kanyakumari Diocese Executive Committee.
6(2)The second applicant/second plaintiff is a baptised, confirmed, communicant, subscribing, worshiping and voting member of CSI Good Shepherd Church in Ananthan Nagar Pastorate in CSI Kanyakumari Diocese. The 2nd applicant is also the Secretary of CSI Ananthan Nagar Pastorate in CSI Kanyakumari District. The 2nd plaintiff is also an elected member of CSI Kanyakumari Diocesan Council representing Ananthan Nagar Pastorate and an elected member of the Executive Committee of CSI Kanyakumari Diocese.
6(3)The applicants are interested in the affairs of CSI Kanyakumari Diocese, Church of South India and Church of South India Trust Association. Church of South India, the largest protestant church in India, was formed in September, 1947 by amalgamating all the protestant churches in South India such as Anglican, Methodist, Presbyterian and the South India United Church in the four Southern States of Tamil Nadu, Kerala, Karnataka and Andhra Pradesh. The Church of South India is a protestant religious denomination. The headquarters of Church of South India is situated in Chennai. There are 22 constituent dioceses in Church of South India. Kanyakumari Diocese, one of the 22 constituent dioceses of Church of South India, is having its headquarters in Nagaercoil and administering churches, hospitals, educational institutions etc., in Kanyakumari District in Tamil Nadu. The apex body is the Synod of Church of South India and the constituent bodies are dioceses.
6(4)The Church of South India (hereinafter referred to as 'CSI') is an unregistered Society. CSI Kanyakumari Diocese is also an unregistered Society. The applicants are filing this suit on their behalf and on behalf of the members of CSI and the Church is being sued in representative capacity represented by its Moderator.
6(5)The Church of South India Trust Association (hereinafter referred to as 'CSITA') was constituted as a legal holding body of the movable and immovable properties of the CSI. CSITA was registered in September, 1974 under Section 26 of the Indian Companies Act 1913 (now Section 25 of the Indian Companies Act, 1956), as a Religious and Charitable Company, which has no business character and with no profit motive. The properties of the Churches in Union have been transferred to CSITA. The jurisdiction of the CSITA covers the 22 Dioceses and other units under their control spread over the four southern States ie., Andhra Pradesh, Karnataka, Kerala and Tamil Nadu, and Union Territory of Pondicherry. The 1st respondent-Church of South India Synod, in its biennial session, elects 15 members of the General Body of 2nd respondent-CSITA. The 15 members of the General Body of the 2nd respondent-CSITA elects 6 persons among themselves as members of the Managing Committee of the 2nd defendant-CSITA. The members of the Managing Committee of the 2nd defendant-CSITA and officers of the synod are Trustees of the 2nd defendant-CSITA. The composition of the Board of Trustees / the Managing Committee of the second defendant-CSITA is as follows:-
S.No Position in CSI Position in CSITA
1.
Moderator of CSI Chairman of CSITA(ex-officio)
2. Deputy Moderator of CSI Member of CSITA(ex-officio)
3. Secretary of CSI Secretary of CSITA(ex-officio)
4. Treasurer of CSI Treasurer of CSITA(ex-officio)
5. 6 persons elected by the General Body of CSITA Members of CSITA The applicants are filing the present suit for removal of the 3rd respondent/3rd defendant from the post of Chairman of the Public Religious Charitable Trust called Church of South India Trust Association (CSITA) and to appoint the 4th respondent as Chairman of CSITA, as the 3rd respondent has committed criminal breach of trust. Hence, the applicants have filed an application under Section 92 of CPC seeking to grant leave to file the present suit.
6(6)The allegation made against the 3rd respondent/3rd defendant is as follows:- CSI Kanyakumari Diocesan Council vide its resolution dated 11.08.2007 sanctioned an amount of Rs.2 crores for purchase of 14.63.345 acres of land in Nallor Village, Vilavancode Taluk, Kanyakumari District in the name of the 2nd defendant-CSITA for the use of CSI Kanyakumari Diocese. The said amount of Rs.2 crores has been withdrawn from the bank accounts of CSI Kanyakumari Diocese in three financial years ie., 2007-2008, 2008-2009 and 2009-2010 and the details of the same are as follows:-
Date Amount In favour of Mode of payment 02.07.2007 25,00,000.00 An individiual Uncrossed cheque 11.07.2007 25,00,000.00 Mr.Bright Irwin Sam Uncrossed cheque 11.10.2007 50,00,000.00 An individual Uncrossed cheque 19.12.2008 75,00,000.00 Mr.Bright Irwin Sam Uncrossed cheque 03.06.2009 6,50,000.00 An individual Uncrossed cheque 03.06.2009 3,50,000.00 An individual Uncrossed cheque 03.06.2009 15,00,000.00 An individual Uncrossed cheque But, the 3rd respondent/3rd defendant, the Bishop of Kanyakumari Diocese paid only a sum of Rs.1 crore to the vendor towards sale consideration and misappropriated the balance sum of Rs.1 crore. Details of the purchase of land are as follows:-
Sub-Registrar Document Date Amount Paid Extent Purchased in the name of Marthandam 431/2009 3.6.2009 50,00,000.00 5.05.175 acres Rt.Rev.G.Devakadasham for Sinclair Memorial CSI College of Engineering & Technology Marthandam 432/2009 3.6.2009 50,00,000.00 9.58.170 acres Rt.Rev.G.Devakadasham for Vethamonickam Memorial CSI Polytechnic College 6(7)As per the purchase documents, the properties were sold by the Trustees of Sinclair Memorial Educational Trust. At the time of registration of documents, Sinclair Memorial Educational Trust was not in existence. As per the above tabular column, Rs.2 crore has been withdrawn from the bank in the name of individuals. There is no evidence to show that money was paid to Sinclair Educational Trust. But, the 3rd respondent/3rd defendant purchased 9.58.170 acres of land vide., Marthandam Sub-Registrar Office Document No.432, dated 03.06.2009 for Rs.50,00,000/- only and purchased 5.05.175 acres of land vid., Marthada Sub-Registrar Office Document No.431, dated 03.06.2009 for Rs.50,00,000/- only. As per the purchase documents mentioned above, the 3rd defendant has paid only Rs.1 crore to the vendor and the balance of Rs.1 crore has been misappropriated by the 3rd defendant as Bishop of CSI Kanyakumari Diocese and as Principal Power of Attorney of 2nd respondent in respect of the properties of the 2nd respondent situated in Kanyakumari District and he has registered the properties in his personal name instead of the name of 2nd respondent/2nd defendant (CSITA).
6(8)As stated supra, the 3rd respondent/3rd defendant withdrew Rs.2 crore from the Bank Account of the CSI Kanyakumari Diocese and purchased 14.63.345 acres of land for Rs.1 crore only and instead of registering the purchase deed in favour of 2nd defendant-CSITA, the 3rd defendant has registered the purchase deed in his personal name, for Sinclair Memorial CSIO College of Engineering & Technology and Vethamonickam Memorial CSI Polytechnic College, whereas those two institutions were not even in existence at the time of registration of purchase documents. With regard to the purchase of property, Chapter XVIII Rule 50.2(b) of the Constitution of 5th defendant CSI Kanyakumari Diocese states as follows:-
Properties purchased or acquired for the use and benefit of the local Church or for the institutions of the Diocese shall be registered only in the name of Church of South India Trust Association. But, the 3rd defendant registered the purchase documents in his personal name.
6(9)The 3rd defendant by virtue of his office as Bishop of 5th defendant-CSI Kanyakumari Diocese borrowed a loan of Rs.75 lakhs, from Vijaya Bank, Nagaercoil in Loan Account No.303208390260001, without the prior approval of 2nd defendant-CSITA, without the resolution of Executive Committee of 4th defendant-CSI Kanyakumari Diocese, as prescribed in Chapter XVIII Rule 50.2(b) of the Constitution of 5th defendant-CSI Kanyakumari Diocese and also without the permission of the Management Committee of 2nd defendant-CSITA. This is in clear violation of the constitution of Church of South India, the constitution of CSI Kanyakumari Diocese and also the conditions incorporated in the Power of Attorney issued by 2nd defendant-CSITA to the 3rd defendant in respect of properties of 2nd defendant-CSITA situated within the territorial jurisdiction of 5th defendant-CSI Kanyakumari Diocese.
6(10)The 3rd defendant suo motu without the permission of the Managing Committee of 2nd defendant-CSITA has mortgaged the properties of 2nd defendant-CSITA vide, Kottaram Sub-Registrar Office Document No.1149/2006, dated 03.04.2006 to Vijaya Bank, Nagercoil, by way of deposit of title deeds to illegally borrow a loan of Rs.75 lakhs. The details of the mortgaged properties are as follows:-
S.No. Village Survey No. Extent
1.
Neendakarai-A G-5-16/2A 24.60 cents
2. Neendakarai-A G-5-16/1A 30.21 cents
3. Neendakarai-A G-5-16/2A 20.00 cents
4. Agasteeswaram 512/3 80.00 cents
5. Agasteeswaram 512/3 61.00 cents
6. Agasteeswaram 517/3&4 48.00 cents
7. Agasteeswaram 513/4 1 acre 23.00 cents
8. Agasteeswaram 508 3 acre 65.00 cents
9. Agasteeswaram 512/1 1 acre 15.00 cents
10. Agasteeswaram 514/15 75.75 cents
11. Agasteeswaram 513/4 1 acre 8 cents
12. Agasteeswaram 515/2B 45.795 cents With regard to the mortgage of property, Chapter XVIII Rule 50.2(b) of Kanyakumari Diocesan Constitution states as follows:-
No land shall be sold or otherwise alienated without the prior approval of the Executive Committee and the Church of South India Trust Association Article 17(b) of the Articles of Association of Church of South India Trust Association states that the power to borrow money on mortgage of the property is with the Committee of Management of Church of South India Trust Association. Chapter II Rule 8(1) of Guidelines to Church of South India Trust Association states as follows, in respect of mortgage of properties owned by Church of South India Trust Association_ 8(1)Trust property shall not be leased, mortgaged or sold without prior sanction of the synod executive/working committee and the Church of South India Trust Association. Application for permission to lease, mortgage or sell trust property requires the approval of the Diocesan Executive/Property Committee before submission to synod Executive Working Committee and the Church of South India Trust Association.
Power of Attorney issued to the 3rd defendant by the Management Committee of 2nd defendant-CSITA in respect of the properties situated with the said Diocese states that:
2.After obtaining permission in writing from the Association, to sell, exchange assign, transfer, dispose of by way of mortgage or hypothecation of any immovable property, or lease or license or demise of the movable property belonging to or vested in the Association or hereafter to belong to or become vested in the Association either absolutely or in which the Association has or may hereafter have any interest, and to receive such price or consideration on behalf of the Association. Hence, without the permission of Management Committee of 2nd respondent-CSITA and the Executive Committee of 5th defendant-CSI Kanyakumari Diocese, mortgage of properties of 2nd defendant-CSITA in favour of Vijaya Bank, Nagercoil by 3rd defendant alone, is illegal and criminal breach of trust.
6(11)It is further stated that the foreign contributions to 5th defendant-CSI Kanyakumari Diocese are received through as per the procedure prescribed under Foreign Contribution Regulation Act ie., foreign contributions for specific purpose are sent to FCRA account of 5th defendant-CSI Kanyakumari Diocese. The 3rd defendant has diverted illegally Rs.20,10,271/- from the FCRA Bank Account of 5th defendant in Vijaya bank, Nagercoil to repay the illegally obtained loan of Rs.75 lakhs from Vijaya Bank and the details of the same are as follows:-
S.No. Date Amount in Rs. 1. 29.11.2010 Rs.6,00,000.00 2. 31.12.2010 Rs.3,00,000.00 3. 31.01.2011 Rs.3,00,000.00 4. 28.02.2011 Rs.3,00,000.00 5. 31.05.2011 Rs.3,00,000.00 6. 30.06.2011 Rs.2,10,271.00 -------------------------- Total Rs.20,10,271.00 --------------------------
Thereby, the 3rd defendant has committed the offence of criminal breach of trust, misuse and diversion of FCRA funds punishable under FCRA/FEMA Act.
6(12)The 3rd defendant, in his capacity as Bishop of 5th defendant - CSI Kanyakumari Diocese, has failed to remit Employees Provident Fund amount of Rs.50,37,465/-, which included the contribution of CSI Kanyakumari Diocesan Employees and the management contribution upto September-2012. This is an offence punishable under EPF Act. Hence, the amount to be paid by the 5th defendant-CSI Kanyakumari Diocese to Provident Fund Account rose to Rs.72,45,480/-, which is as follows:-
EPF Amount due upto September-2012 Rs.50,37,465.00 Penalty levied for non-payment of EPF amount Rs.11,38,144.00 Damages levied for non-payment of EPF amount Rs.10,69,871.00
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Rs.72,45,480.00
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6(13)As 3rd defendant failed to remit the EPF amount of Rs.50,37,465/- upto September-2012 in due date, 5th defendant-CSI Kanyakumari Diocese was asked to pay penalty of Rs.11,38,144/- and damages of Rs.10,69,871/-. Hence, Regional Provident Fund Commissioner withdrew the following amount from the following bank accounts of 5th defendant-CSI Kanaykumari Diocese, including Rs.57,59,000/- from the FCRA accounts of the 5th defendant Diocese as follows:-
Account of the Diocese Amount withdrawn by PF Commissioner FCRA Accounts Rs.57,59,000.00 Indian Postship Rs. 3,47,000.00 Indian Bank Rs. 1,08.123.00 Synidcate Bank Rs. 2,69,000.00
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Rs.64,83,123.78
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6(14)Correspondent of CSI Scott Christian College, Nagercoil, expired on 24.01.2013. But, the 3rd defendant without resorting to the procedure prescribed in the Constitution of 4th defendant-CSI Kanyakumari Diocese for appointment of Correspondent of the College, vide his letter dated 07.02.2013 informed the Joint Director of Collegiate Education, Tirunelveli that the 3rd defendant himself had taken over the Correspondentship of Scott Christian College with effect from 25.01.2013 and sought the approval of Joint Director of Collegiate Education, Tirunelveli. But, the Joint Director of Collegiate Education refused to approve the suo motu self appointed Correspondentship of 3rd defendant and ordered for direct payment. As a result, Scott Christian College, Nagercoil, a minority religious institution, is under the direct administration of Joint Director of Collegiate Education, Tirunelveli.
6(15)As per Chapter V Rule 10 of CSI Constitution, the Bishop of a CSI Diocese shall not exercise any direct control over the finances of the diocese. But, the 3rd respondent/3rd defendant is the self appointed Correspondent of CSI Scott Christian College, Nagercoil and he is the important signatory of the cheques of the College Bank Account Nos.841, 1066 & 1737 being maintained in Indian Overseas Bank. Being the Moderator of CSI, the 3rd respondent/3rd defendant has violated this important provision of the Constitution of CSI.
6(16)The 3rd respondent has obtained solvency certificate worth Rs.30,00,000/- from the Tahsildar, Vilavankode Taluk, Kanyakumari District in his personal name after giving false declaration before the said Tahsildar on 31.07.2009 declaring that the 3rd respondent/3rd defendant himself has independent saleable rights without encumbrance over 1 acre 83 cents of immovable properties of 2nd respondent-CSITA situated in Kanyakumari District, Vilavankode Taluk, Nallur Village Survey Nos.C5/36, C5-37, C5/100, 21/3A and 21/3C. But, the 3rd respondent/3rd defendant has not saleable right over these properties, owned by the 2nd respondent-CSITA. The 3rd respondent/3rd defendant has given a false declaration before the revenue authorities to obtain solvency certificate worth Rs.30 lakhs in his personal name.
6(17)Hence, the applicants submitted a representation to the Deputy Moderator/4th defendant on 23.03.2013 making following allegations against the 3rd defendant:-
(1)Misappropriation of Rupees One Crore by the 3rd respondent (2)Registration of lands in 3rd respondent's personal name (3)Illegal borrowing of loan of Rs.75 lakhs by the 3rd respondent (4)Illegal Mortgage of CSITA properties by the 3rd respondent (5)Misappropriation of FCRA funds by the 3rd respondent (6)Non-payment of EPF Contribution by the 3rd respondent (7)The 3rd respondent has taken over Correspondentship unconstitutionally (8)the 3rd respondent is having direct control over finance.
(9)False statement by 3rd respondent to get solvency certificate in his personal name.
(10)third respondent prevented Diocesan Vice-President from functioning.
Hence, the applicants requested the 4th defendant to exercise the powers conferred on him as Deputy Moderator under Chapter XI Rules 25, 26 and 27 and Chapter V Rule 13 of the Constitution of the Church of South India. The 4th defendant/4th respondent should have taken the following actions against the 3rd respondent:-
(1)As per Chapter XI Rule 25 of CSI Constituent, when three Executive Committee members of 5th respondent-CSI Kanyakumari Diocese brought serious charges against the 3rd respondent, the 4th respondent should have consulted all the Bishops of CSI and should have constituted the Synod Court to enquire into the charges brought against the third respondent.
(2)The third respondent should have been placed under suspension as in the case of CSI Thoothukudi Bishop.
(3)The fourth respondent should have taken over the post of Moderator of Church of South India from third respondent.
(4)The fourth respondent should have taken over the post of Chairman of Church of South India Trust Association from the third respondent.
(5)The fourth respondent should have withdrawn the power of attorney issued to the third respondent by CSITA in respect of the properties of CSITA situated within the territorial jurisdiction of fifth respondent CSI Kanyakumari Diocese.
(6)In the alternative, the fourth respondent-Deputy Moderator should have, in exercise of the powers conferred on him vide Chapter V Rule 13 of CSI Constitution, asked the third respondent to resign from his services as Bishop of fifth respondent - CSI Kanyakumari Diocese and if the third respondent had refused, the fourth respondent should have referred the matter to CSI Synod Executive Committee for appointing a special commission to investigate the matter and if on the report of such commission, the Executive committee should have decided that the third respondent ceased to be the Bishop of fifth respondent CSI Kanyakumari Diocese. But, the fourth respondent failed to take action as suggested supra. Hence, the applicants have filed the present suit.
6(18)Since the 1st respondent-CSI is an unregistered Society, the applicants/plaintiffs have filed the suit in the representative capacity on their behalf and also on behalf of the members of CSI and the 1st respondent-Church being represented by the Moderator, the applicants have filed A.No.3014 of 2013 seeking to grant leave. Similarly, Application No.3015 of 2013 has been filed under Order XIV Rule 8 of O.S.Rules read with Section 92 of CPC, seeking to grant leave to file the suit against the 2nd respondent-CSITA.
7.The respondents 1 & 3 have filed the counter stating that the plaint should contain necessary averments to bring the suit within the ambit of Section 92 of CPC. But, the plaint does not contain any material or facts or cause of action to file the suit invoking Section 92 of Civil Procedure Code. Hence, the application seeking leave of this Court under Section 92 of CPC has to be dismissed.
8.The 2nd respondent has filed a counter stating that the applicants/plaintiffs have not made out a case of breach of trust or have they sought for a direction of this Court for the administration of the second defendant Trust and the very foundation for a suit under Section 92 of the Code does not exist in the given circumstances. There was no misappropriation by the third respondent/third defendant Bishop, who is the present Moderator and Chairman of the second defendant-Trust or were the properties in question purchased in his personal name. Moreover, the permission to avail of a loan of Rs.75 lakhs and to create an equitable mortgage of property was given by the Committee of Management of the second defendant-Trust vide Resolution No.14, dated 06.09.2004. All the other allegations have nothing to do with the second respondent-Trust or do they entitle the plaintiffs to maintain a suit under Section 92 of the CPC. The entire suit is on the basis of mere allegations with no proof whatsoever, to substantiate the same. In any case, there is no cause of action in respect of the second defendant-Trust or has any relief been sought for against the Trust. The third respondent is the Bishop of the fifth respondent and was elected as Moderator of the 1st respondent-CSI in January-2012. He is the Chairman of the 2nd respondent-Trust by virtue of being the Moderator and it is not the case of the plaintiffs that he committed any breach of trust as Chairman of the Trust. The applicants have also suppressed the fact that the 3rd respondent Bishop shall have a general oversight of the financial administration of the 5th defendant, but shall not exercise any direct control over the finances as contemplated under Chapter V Rule 10 of the Constitution of the 1st respondent-CSI. A plain reading of the plaint and the documents filed along with the suit would show that there is no nexus between the cause of action and the reliefs sought for in the suit, especially in respect of relief-(a) therein. The 5th respondent Diocese is also an unregistered society, but no leave under Order I Rule 8 of CPC has been sought for in respect of the 5th respondent-Diocese. Moreover, the present applicants for such a leave to sue others have to be made before the Master of the Court under Order XIV Rule 10(xiv) of the Madras High Court Original Side Rules, with an invaluable right of appeal available under Rule 12 of the said Rules. There is no cause of action for the suit or are the plaintiffs entitled to the reliefs claimed therein, much less is it a case for invoking Order I Rule 8 and Section 92 of CPC in the manner sought to be done. Thus, the 2nd respondent prayed for dismissal of both the applications.
9.The 5th respondent has filed a counter affidavit stating that the applicants have submitted a representation to the 4th respondent on 23.03.2013 requesting him to exercise the powers conferred on him as Deputy Moderator vide Chapter XI Rules 25, 26 and 27 and Chapter V Rule 13 of the Constitution of the Church of South India. The 4th respondent is empowered to take action against the 3rd respondent, but no action was taken by the 4th respondent.
10. I have carefully heard the submissions made on either side and perused the materials available on record.
11.The learned counsel for the respondents 1 & 3 has made his submission on the following lines_
1)the permission under Order I Rule 8 of CPC should not have been sought for in a suit filed under Section 92 of CPC.
2)In a suit against the Trust, all the truestees should be impleaded as parties. But, in the instant case, the trustees of the 2nd respondent-CSITA were not added as defendants in the suit.
3)The prayer sought for in the suit will not come within the ambit of Section 92 of CPC. The prayer-(a) made in the plaint, for declaration to declare that Rule 3 Chapter XI of the Constitution of first defendant Church of South India that All members of the Church hereby agree that they shall first exhaust all provisions available in this Constitution for the enforcement of their rights under this Constitution and for redressal of their grievances, before they seek legal remedy in a Court of law and members who violate this rule shall ipso facto lose their right to participate in the Government of the Church at all levels, is illegal and unconstitutional, cannot be granted in a suit filed under Section 92 of CPC.
4)The applications filed under Order 1 Rule 8 ought to have been filed before the Master. Since the applications have been filed before this Court, the same are liable to be dismissed.
5)Though the 5th respondent is an unregistered body, no application has been filed seeking permission to file the suit in the representative capacity, as against the 5th respondent.
12.With regard to the first submission that the permission under Order I Rule 8 of CPC should not have been sought for in a suit filed under Section 92 of CPC, it is the reply of the learned counsel for the applicants that the 2nd respondent-CSITA is a creation of 1st respondent-CSI to hold the properties of the 1st respondent. The 2nd respondent-CSITA has been registered under Section 25 of the Companies Act. The 2nd respondent cannot exist independently. The 2nd respondent has been created by the 1st respondent for the benefit of the members of the 1st respondent. The 3rd respondent-Moderator of CSI is the ex-officio Chairman of the 2nd respondent-CSITA. The 3rd respondent is the Moderator of CSI, 4th respondent is the Deputy Moderator of CSI and the 5th respondent is an integral part of CSI. They are part and parcel of the 1st respondent-CSI. Hence, the 1st respondent is a necessary party to the suit. Since the 1st respondent is an unincorporated body, the 1st defendant cannot be arrayed as a party in the suit without seeking the permission of the Court under Order I Rule 8 of CPC. Hence, according to the learned counsel for the applicants, there is nothing wrong in filing the present application under Order I Rule 8 of CPC seeking permission in a suit filed under Section 92 of CPC.
13.On perusal of the materials available on record, I find that the present suit is filed mainly for removal of the 3rd respondent from the post of Chairman of the public religions charitable trust, 2nd respondent-CSITA. As contended by the learned counsel for the applicants, the 3rd respondent is occupying the Office of Chairman of CSITA, by virtue of his post as Moderator of 1st respondent-CSI. Therefore, the suit cannot be filed without impleading the 1st respondent-CSI. The 1st respondent being an unregistered body, the application under Order I Rule 8 of CPC has been filed to sue the 1st respondent. The present application in A.No.3014 of 2013 has been filed seeking the permission of this Court to enable the applicants/plaintiffs to file the suit in representative capacity on behalf of the other members of CSI and also to file the suit against the 1st respondent, an unregistered body. It is well settled legal position, that unless permission is obtained to file a suit against unregistered body, there cannot be a suit against the unregistered body. Obtaining permission under Order I Rule 8 of CPC is purely procedural in nature. Therefore, I do not find any infirmity in filing the application under Order I Rule 8 of CPC to file a suit against the unregistered body in a suit filed under Section 92 of CPC. Hence, I am not inclined to accept the submissions made by the learned counsel for the respondents in this regard.
14.It is yet another submission of the learned counsel for the respondents 1 & 3 that in a suit filed against the Trust, all the trustees should have been impleaded as parties as required under Order 31 Rule 2 of CPC. In the instant case, since the other trustees of the 2nd respondent were not added as parties, leave to file a suit under Section 92 of CPC cannot be granted.
15.But, as contended by the learned counsel for the applicants/plaintiffs that in the counter affidavit filed by the respondents, they did not raise any objection with regard to non-impleadment of all the trustees. The 2nd respondent is a registered Society, registered under Section 26 of Indian Companies Act, 1913. Honourary Secretary of the second defendant is the authorised person to represent the second defendant, a legal entity. The applicants, as beneficiaries of the Trust, have filed the present suit for removal of the 3rd respondent from his post of Chairmanship on the allegation of misappropriate of funds. The prayer sought for in the plaint is independent in nature as against the 3rd respondent, who is occupying the post of Chairman of the 2nd respondent-Trust, by virtue of his office as Moderator of 1st respondent-CSI. Moreover, since the 2nd respondent is a registered body and the prayer sought of in the plaint is independent in nature as against the 3rd respondent, I am of the opinion that non-impleadment of the other trustees will not serve as a ground to reject the application filed by the applicants seeking leave to file a suit under Section 92 of CPC.
16.In this regard, a reference could be placed in the judgment, relied upon by the learned counsel for the applicants, in the case of M.Gomathinayagam Pillai & others Vs. Sri Manthramurthi High School Committee, Tirunelveli & others reported in 1963-2 MLJ 56, wherein it has been held as follows:-
If an association is registered under Section 25 of the Indian Companies Act, the members of it and they alone will have powers to apply to the Company Court for relief in case there is mismanagement. But, in a case where the beneficiaries of a trust want to complain that there has been a breach of the trust or that a direction of the Court is necessary, they can file a suit under Section 92 of the Civil Procedure Code. A reading of the above said judgment would show that the applicants herein, only as beneficiaries of the 2nd respondent-CSITA, have filed the suit under Section 92 of CPC to remove the 3rd respondent from the post of Chairman of the 2nd respondent-Trust. As observed above, the prayer sought for in the suit is independent in nature as against the 3rd respondent. Hence, I do not find any infirmity in non-impleadment of other trustees as parties in the suit. Therefore, the judgments relied upon by the learned counsel for the respondents reported in 129(2006)DLT 638 [Shri Golesh Kumar Vs. Ganesh Dass Chawla Charitable Trust (Regd)] and (2011) 1 SCC 623 [Sainath Mandir Trust Vs. Vijaya and others], can not be made applicable to the facts of this case. In this regard, a reference could be placed in another judgment reported (2013) 1 MLJ 433 (Nadigar Sangham Charitable Trust rep. By its Managing Trustee R.Sarathkumar, Chennai and another vs. S.Murugan @ Poochi Murugan, Memebrship No.6728, Chennai and others), wherein it has been held that while dealing with an application for leave under Section 92 of CPC, the Court should not adopt a hyper-technical approach. There cannot be a hard and fast rule in a case involving a public charity. The Court has necessarily a duty to protect the interest of the public trust.
17.It is another submission of the learned counsel for the respondents that in view of the nature of the averments made in the plaint, the suit will not come within the ambit of Section 92 of CPC. In this regard, the learned counsel for the respondents relied upon the judgment reported in AIR 2008 SC 1633 [Vidyodaya Trust Vs. Mohan Prasad R. and ors] and submitted that the Court has to be careful to eliminate the possibility of a suit being laid against public trust under Section 92 by person whose activities were not for protection of the interest of the public trust. In the instant case, it is purely private and personal dispute.
18.With regard to the general principle on Section 92 of CPC, the learned counsel for the respondents submitted that a suit under Section 92 of CPC is a suit of a special nature, which presupposes the existence of a religious or charitable trust character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the said Section. If the allegation of breach of trust is not substantiated or if the plaintiff has not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the Section would fail. In support of this contention, the learned counsel for the respondents 1 & 3 relied upon the judgment of the Hon'ble Apex Court reported in AIR 1974 SC 2141 [Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another], wherein it has been held as follows:-
10.Mr.B.P.Maheshwari, learned counsel for the respondents placed strong reliance upon a decision of the Patna High Court in Ganpat Pujari Vs. Kanaiyalal, AIR 1933 Pat 246 and the decision of this Court in Harendra Nath Vs. Kaliram Das, (1972) 2 SCR 492 (AIR 1972 SC 246). In the Patna case the first relief asked for in the suit was for an adjudication of the property in the suit belonging to the general public and for a declaration of their right to that effect. The Thakurbari in question was claimed to be a public property to which the entire Hindu community was entitled to go and worship. The appeal arising not of the suit came up before Wort and Fazl Ali, JJ. as they then were. There was a difference of opinion as to the application of Section 92 of the Code between them, the latter taking the view that Section 92 of the Code was not a bar. On reference to the third learned Judge, Kulwant Sahay, J. agreeing with the view of Fazl Ali, J. held that the relief claimed in the suit was not covered by clauses (a) to (h) of Section 92. The facts of the instant case are different and the Letters Patent Appeal Bench of the Punjab High Court committed an error in applying the ratio of the Patna case to the facts of the present case. In (1972) 2 SCR 492 = (AIR 1972 SC 246) (supra), Grover, J. delivering the judgment of this Court referred to the analysis made by the High Court as to the reliefs claimed in the plaint of that suit. In the main there were 4 reliefs as enumerated at pages 498 and 499 of the report = (at p.250 of AIR). Reliefs (1), (2) and (4) were clearly outside the scope of Section 92 of the Code. Learned counsel for the respondents submitted that relief No.3 which was very much akin to the relief in the present suit was also held to be a relief not covered by any of the clauses of sub-section (1) of S.92 of the Code. In our opinion, the contention is not sound and cannot be accepted. The third relief in that case as analysed by the Court was in the following terms:-
For a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Bati and paddy lands and that they had a right to access to the use of the Satra for various religious purposes.
11.There were two parts of the said relief one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case, the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Court's aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under Section 92 of the Code and since it was not filed in conformity with the requirement of the said provisions of law it was not maintainable. The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct. By relying upon the above said dictum, the learned counsel for the respondents 1 & 3 submitted that in the instant case, the allegations made in the plaint would show that the applicants/plaintiffs are vindicating their individual/personal rights under the guise of vindicating public right. Therefore, the present applications are liable to be dismissed.
19.But, on perusal of the averments made in the plaint and the materials placed before this Court, I find that it is the specific allegation of the applicants/plaintiffs that the 3rd respondent by withdrawing a sum of Rs.2 crores from the Bank account of CSI Kanyakumari Diocese in three financial years viz., 2007-08, 2008-09 & 2009-10, purchased the land for Rs.1 crore and misappropriated the balance amount of Rs.1 crore. Further, instead of purchasing the property in the name of the 2nd respondent-CSITA, the 3rd respondent has purchased the property in his personal name. In this regard, a reference was also placed by the learned counsel for the applicants in Chapter XVIII Rule 50.2(b) of the Constitution of fifth respondent-CSI Kanyakumari Diocese, which states as follows:-
Properties purchased or acquired for the use and benefit of the local Church or for the Institutions of the Diocese shall be registered only in the name of Church of South India Trust Association. Further, Chapter II Rule 6 of Guidelines to Church of South India Trust Association states as follows:-
Properties shall be acquired in the name of the Church of South India Trust Association on the authority of Synod Executive/Working Committee and the Church of South India Trust Association and the concerned Diocesan Executive Committee or other body approved by them. The Form of Indenture prescribed by the Church of South India Trust Association shall be used for such acquisition.
20.From the above said guidelines, it is clear that the property should be purchased in the name of the Trust and not in the individual name. In the instant case, the allegation against the 3rd respondent is that he withdrew a sum of Rs.2 crores and purchased the property in his individual name for Rs.1 crore and misappropriated the balance amount. Similarly, the other allegation made against the 3rd respondent is also only in respect of violations of the by-laws of the Trust by the 3rd respondent. For granting leave to file the suit, at the first instant the allegations made in the plaint alone should be looked into to find out whether the suit falls with the ambit of Section 92 of CPC or not. In the instant case, on going through the plaint, I find substantial allegations as against the 3rd respondent to bring the suit within the purview of Section 92 of CPC. At this stage, the correctness of such allegations cannot be looked into and the same can be gone into at the time of trial. In this regard, a reference could be placed in the judgment, relied upon by the learned counsel for the applicants, reported in AIR 1974 SC 2141 [Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another], wherein it has been held as follows:-
14.It is, no doubt, true that is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B.Bagga Singh Vs. Gurnam Singh, AIR 1972 Raj 263; Sohan Singh Vs.Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna Vs. Lachhmi Narain, AIR 1949 Oudh 203). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any sold foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec.92. Keeping the dictum laid down in the above said judgment, I am of the opinion that the present allegations made in the plaint are sufficient to bring the suit within the ambit of Section 92 of Civil Procedure Code as against the 3rd respondent. However, correctness of the allegations made in the plaint can be decided only at the time of trial. If the allegations made in the plaint are found to be not correct, then the suit is liable to be dismissed.
21. It is yet another objection of the learned counsel for the respondents that at any cost, prayer -(a) made in the plaint for declaration to declare that_ Rule 3 Chapter XI of the Constitution of first defendant Church of South India that All members of the Church hereby agree that they shall first exhaust all provisions available in this Constitution for the enforcement of their rights under this Constitution and for redressal of their grievances, before they seek legal remedy in a Court of law and members who violate this rule shall ipso facto lose their right to participate in the Government of the Church at all levels is illegal and unconstitutional.
cannot be granted in a suit filed under Section 92 of CPC, since the said prayer is out of the scope of Section 92 of CPC.
22.But, it is the reply of the learned counsel for the applicants/plaintiffs that Rule 3 Chapter XI of the Constitution of CSI prevents a person from going to Court against the Church and such persons can be removed from basic membership of CSI. Hence, unless the said provision is stayed as illegal and unconstitutional, the members will lose their right to seek their remedy under Section 92 of CPC. Hence, addition of the said declaration prayer in the plaint filed under Section 92 of CPC cannot take the suit out of the scope of Section 92 of CPC. In this regard, the learned counsel for the applicants/plaintiffs has also relied upon a judgment of the Rajasthan High Court reported in AIR 1972 RAJASTHAN 263 [Association of Radhaswami Dera Baba Bagga Singh & another Vs. Gurnam Singh & others], wherein it has been held as follows:-
22.In the present case, the facts are quite different from those covered in the above-referred to cases. Substantially the plaintiffs' suit is for reliefs specified in Section 92. There is of course an additional prayer for declaring Exs.1, 2 and 3 as void; but, in our opinion, mere addition of a prayer for declaration cannot take the suit out of the ambit of Section 92, C.P.C., when substantially all other conditions of the section are otherwise fulfilled.
23.The dictum laid down in the above said judgment is squarely applicable to the facts of the present case also. The declaration prayer is only an additional prayer in nature and that will not take the suit out of the scope of Section 92 of CPC. As contended by the learned counsel for the applicants/plaintiffs, unless the above said provisions viz., Rule 3 Chapter XI of the Constitution of CSI is stayed, the applicants will be removed from their membership and they will be non-suited and they will lose their right to seek remedy under Section 92 of CPC, since the said provision virtually places an embargo on the members of CSI from approaching the Court. Therefore, absolutely there is no impediment in adding the declaration prayer as auxiliary prayer in the suit filed under Section 92 of CPC.
24.It is another objection of the learned counsel for the respondents/defendants that the other prayers also are not in confirmity with the provisions of Section 92 of CPC and other than the reliefs mentioned in Section 92 of CPC have also been included in the suit.
25.Before dealing with this objection, it would be appropriate to extract Section 92 of CPC.
92.Public Charities_(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree,
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :
(a) where the original purposes of the trust, in whole or in part,
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust. It is the contention of the learned counsel for the respondents/defendants that the reliefs sought for by the applicants/plaintiffs in the plaint will not fall within the purview of the provisions of Clause (a) to (h) of Section 92(1) of CPC. Therefore, the suit is not maintainable under Section 92 of CPC.
26.But, it is the reply of the learned counsel for the applicants/plaintiffs that the suit is maintainable under Section 92 of CPC. In support of his contention, the learned counsel for the applicants/plaintiffs relied upon the judgment reported in 1975(1) SCC 298 (Charan Singh & another VS. Darshan Singh & others), wherein it has been held as follows:-
7.The High Court in the Letters Patent appeal has taken the view that the relief sought for in the suit does not fall under any of the clauses (a) to (h) of section 92 of the Code. Learned counsel for the appellant has assailed this view and submitted that the relief sought for falls under clause (e) or (g) or in any event under clause (h). In our judgment the relief sought for in this case does not strictly or squarely fall within clause (e) or (g) but is very much akin to either and hence is covered by the residuary clause (h).
8.Lord Sinha delivering the judgment of the Judicial Committee of the Privy Council in Abdur Rahim and others v. Syed Abu Mahomed Barkat Ali Shah and others(1) rejected the argument that the words "such further or other relief as the nature of the case may require" occurring in clause (h) must be taken, not in connection with the previous clauses (a) to (g) but in connection with the nature of the suit. The argument was that any relief other than (a) to (g) in the case of an alleged breach of an express or constructive trust as may be required in the circumstances of any particular case was covered by clause (h). It was repelled on the ground that the words "further or other relief" must on general principles of construction be taken to mean relief of the same nature as clause (a) to (g). It would be noticed that the word used after clause (g) and before clause (h) is "or". It may mean "and" in the context, or remain "or in the disjunctive sense in a given case. If any further relief is asked for in addition to any of the reliefs mentioned in clauses (a) to (g) as the nature of the case may require, then the word "or" would mean "and". But if the relief for is other relief which is not by way of a consequential or additional reliefs in terms of clause (a) to (g), then the word "or" will mean "or". The other relief however, cannot be of a nature which is not akin to or of the same nature as any of the reliefs mentioned in clauses (a) to (g). According to the plaintiffs case one of the objects of the religious trust was the worship of Granth Sahib and its recital in congregations of the public. In the suit a decree declaring what portion of the trust property should be allocated to the said object could be asked for under clause (e). The plaintiffs could also ask for the settling of a scheme under clause (g) alleging mismanagement of the religious trust on the part of the trustees. In the settlement of the scheme could be included the worship and recital of Granth Sahib the holy Granth. The plaintiffs in their plaint did not in terms ask for the one or the other. They, however, alleged acts of breach of trust, mismanagement, undue interference with the right of the public in the worship of Granth Sahib. They wanted a decree of the Court against the appellant to force him to carry out the objects of the trust and to perform his duties as a Trustee. Reading the plaint as a whole it is not a suit where the plaintiffs wanted a declaration of their right in the, religious institution in respect of the Granth Sahib. But it was a suit where they wanted enforcement of due performance of the duties of the trustee in relation to a particular object of the trust. It is well-settled that the maintainability of the suit under Section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement.
11.......In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee, and the plaintiffs seek the courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under section 92 of the Code The learned counsel for the applicants/plaintiffs has also placed reliance upon the judgment reported in (2013) 1 MLJ 433 (Nadigar Sangham Charitable Trust rep. By its Managing Trustee R.Sarathkumar, Chennai and another vs. S.Murugan @ Poochi Murugan, Memebrship No.6728, Chennai and others), wherein it has been held as follows:-
6.According to Plaintiffs/Respondents 1 and 2, the power of attorney dated 6.8.2010 is illegal, 2nd and 3rd appellants have completely ignored the basic principles of collective responsibility in the affairs of the Trust and they have taken unilateral decisions and thereafter approached the Executive Committee for expost facto approval. The plaintiffs' allege that valuable property of Rs.150 Crores has been leased out for a period of 29 years and 11 months and the amount to be collected as rental security deposit is a paltry sum of Rs.1,44,00,000/-. The terms and conditions in the lease deed are more favourable to the 3rd respondent and the rental income is far less when compared to the value of the property. All these issues have not been discussed before the General Body of SIAA or the Board of Trustees. The Charitable Trust was created only for the welfare of poor artists of SIAA and anything to be done in the interest of the Charitable Trust must be done only through the Board of Trustees as contemplated in the Trust deed. In the suit filed under Section 92(1) (d) (g) and (h), the plaintiffs initially sought for declaration:-
(i) to declare the General Power of Attorney dated 6.8.2010 and the lease deed dated 6.8.2010 executed by the 3rd appellant in favour of the 2nd appellant as null and void;
and
(ii) to declare that the lease deed dated 25.11.2010 executed by the 2nd appellant in favour of the 3rd respondent as null and void.
Amendment application:-
7. In the suit filed in CSD No.15568 of 2012, respondents 1 and 2/plaintiffs filed application A.No.2757 of 2012 seeking leave to file the suit under Section 92 C.P.C. In the said application, notice was ordered and the same was served on the appellants. The appellants entered appearance and filed their counter statement inter alia stating that the suit in CSD. No.15568 of 2012 is not maintainable as the same does not fulfil the requirements of Section 92(1) of C.P.C and that none of the prayers sought for in the plaint would come within the ambit of Section 92 of C.P.C. On such objection being raised by the appellants, Respondents 1 and 2/ plaintiffs filed amendment application - A.No.3519 of 2012 in CSD. No.15568 of 2012 under Order XIV Rule 8 of O.S.Rules read with Order VI Rule 17 of C.P.C. seeking amendment of the plaint and to include the following prayers:
"i. To direct the first defendant to produce accounts and inquiries pertaining to affairs of the first defendant trust.
ii. Settling a scheme of administration of the first defendant trust.
iii. Removing the defendants 2 and 3 from the trusteeships.
By Order dated 11.9.2012, the amendment application - A.No.3519 of 2012 was allowed and consequently the plaint was amended.
........
20.In order to apply Section 92 C.P.C., the following conditions must be satisfied:
(a)There is a Trust created for public purpose of a charitable or generous nature;
(b)there is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such Trust;
(c)The suit must be a representative one on behalf of the public and is not by individuals for their own interest; and
(d)the relief claimed in the suit is one or other reliefs mentioned in Section (a) to (h) of Section 92.
The real test for the applicability of Section 92 of the Code is to see whether the suit is fundamentally on behalf of the public for vindication of a public right.
..............
24. In P.V.Mathew and others Vs. K.V.Thomas and others (supra), Division Bench of Kerala High Court has laid down the procedure to be followed by Court in granting leave under Section 92(1) C.P.C. The said judgment was referred and relied upon by the First Bench of this Court in M.Anandan vs. Ayyanna Gounder Memorial Trust & others (1993-2-L.W.308).
25. In M.Anandan Vs. Ayyanna Gounder Memorial Trust and others (supra) case, the Division Bench of this Court has observed that for safeguarding of the interest of the Trust, passing of such interim orders are necessary and held as under:
"11. We may also point out here that one of the grounds on which the learned Single Judge has affirmed the order appointing the Receiver is that Receiver can even be appointed in any proceeding, not necessarily in a suit, and therefore, the fact that the leave has not been granted under S.92, Code of Civil Procedure and the suit cannot be held to have been validly instituted, does not come in the way of appointing a Receiver...."
26. The Supreme Court in N.Narayana Chettiar v. N.Lakshmanan Chettiar (AIR 1991 SC 221) observed that the issuance of the notice is not a statutory requirement to be complied with before granting leave under Section 92 of C.P.C. The Supreme Court further observed that any construction of the provisions of Section 92 of C.P.C in favour of giving notice before granting leave would render it difficult for the beneficiaries of a Public Trust to obtain urgent interim orders of the Court even though the circumstances might warrant such a relief being granted. This Judgment throws light on the scope of opposition before granting leave. Once the Court finds that it is a public trust, Court is to consider what is in the best interest of the Trust.
27. The plaint originally filed by the appellants was under Section 92(1)(d), (g), and (h) read with Order 4 Rule 1 of Original Side Rules and under Order VII Rule 1 of C.P.C. Even though suit was filed for declaring that the general power of attorney (dated 6.8.2010) and lease deeds (dated 6.8.2010 and 25.11.2010) are null and void, by perusal of plaint, it is seen that it contains averments as to execution of lease deeds and that 2nd and 3rd appellants have completely ignored the basic principles of collective responsibility in the affairs of the Trust and that they have taken upon themselves the task of administering the Trust property as if it is their own property apparently with the mala fide intentions. It is also averred that there is no transparency in the dealings of the Trust and that valuable property has been leased out for a period of 29 years and 11 months and competitive bidding has not been resorted to ensure maximum income for the Trust. Though the plaint contains the essential averments regarding the breach of trust committed by the trustees, the fact remains that there was no prayer originally for accounting, removal of appellants from the trusteeships and to settle a scheme for administration of the Trust. By way of the amendment, the respondents 1 and 2 incorporated those three prayers. Except this, no other changes were made in the plaint.
28. As pointed out above, the plaint originally filed by the respondents 1 and 2 contains the details of the allegations levelled against the appellants. In the plaint, respondents 1 and 2/ plaintiffs alleged that the 1st appellant and the 2nd appellant being close relatives acted in a collusive manner to show undue benefit on a third party by giving the valuable property of the Trust for a pittance. They have also produced the sale deed, General Power of attorney dated 6.8.2010 and the subsequent lease deeds dated 6.8.2010 and 25.11.2010 along with the plaint to prove that the appellants committed a serious breach of trust by giving the property on lease in a collusive manner and with an option given to the builder even without calling for public participation. The plaint originally filed and the documents enclosed along with the plaint were sufficient to grant leave. Since the provision of law was correctly quoted, the amendment was only a formal one without changing the nature of suit.
............
30.On behalf of the appellants, it was then contended that the single Judge erred in making observations as to the affairs of the Trust while passing orders in the application under Section 92(1) of C.P.C. Placing reliance upon decision of Supreme Court in Swami Paramatmanand Saraswati and another Vs. Ramji Tripathi and another (1974) 2 SCC 695 = AIR 1974 SC 2141, it was contended that while hearing the application under section 92 C.P.C, only the allegations in the plaint should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 and the plaint does not contain any allegation as to the breach of trust and while so single Judge was not right in observing that there was gross mismanagement of property. Reliance was also placed upon decision of Supreme Court in N.Narayana Chettiar v. N.Lakshmanan Chettiar (supra).
32. The learned counsel for respondents 1 and 2 has drawn our attention to Clause 13 of the Lease deed dated 25.11.2010, as per which the 3rd respondent have the option of preemptive purchase of the property, which, according to the counsel, is in the nature of a sale. Learned counsel had also submitted that lease deed is not terminable for the long period of 29 years and 11 months and in case of any earlier termination of the lease deed on any ground before the lock up period of 29 years and 11 months, the 3rd respondent/ developer shall be entitled to compensation by payment of the then current value and till the matters are determined by the Arbitrator, the 3rd respondent/developer will be entitled to use and occupation of the schedule property and clauses in the lease deed dated 25.11.2010 are heavily loaded in favour of the 3rd respondent.
.........
39. We do not find any merit in the said contention. Respondents 1 and 2 challenged the alleged action taken by the appellants to grant lease of the trust property for a paltry sum to a private party in a collusive and secret manner. The Court is concerned only about the said action. The fact that the General Body subsequently met and approved the action taken by the appellants would not deprive the Court from considering the bona fides of the action originally taken by the appellants as trustees. In fact, the learned counsel for respondents 1 and 2 contended that the minutes in respect of the General Body itself was fabricated and genuineness of the records could be tested only during the time of trial. We are not expressing any opinion on this aspect.
Keeping in view the dictum laid down in the above said judgments, I perused the averments as well as the prayer made in the plaint. In the plaint, there is a specific allegation with regard to the violation of the by-laws of Trust by the 3rd respondent, who is the Chairman of the Trust. Hence, in the background of the allegation made against the 3rd respondent, who is the Chairman of the 2nd respondent, I am of the opinion that the prayers made in the plaint are in confirmity with Section 92 of CPC. I find that prayers (a),(c),(d) & (f) will fall under Section 92(1)(h) of CPC. Prayer (b) will fall under Section 92(1)(a) of CPC. Prayer (e) will fall under Section 92(1)(b). In view of the same, I am not inclined to accept the submission made by the learned counsel for the respondents that the prayers made in the plaint are not in conformity with the provisions under Section 92 of CPC. Hence, leave is granted in A.No.3015 of 2013.
27.With regard to the application filed under Order I Rule 8 of CPC, viz., A.No.3014 of 2013, it is the objection of the learned counsel for the respondents/defendants that the application under Order I Rule 8 of CPC should have been moved before the Master under Order 14 Rule 10(xiv) of OS Rules.
28.It is the reply of the learned counsel for the applicants/plaintiffs that Order 14 Rule 10 of OS Rules gives the list of matters to be decided by the learned Master including application under Order 1 Rule 8 of CPC. But, in practice, such applications are decided by the Hon'ble Judge sitting in the original side. Further, the learned counsel for the applicants/plaintiffs submitted that since the preliminary judicial works occupy a greater part of the time of the Judge on the Original Side, the Master, who ranks next to the Registrar, does much of the preliminary judicial works. Therefore, there is nothing wrong in deciding application under Order 1 Rule 8 of CPC by the Single Judge sitting in original side, when situation warrants. In this regard, the learned counsel for the applicants/plaintiffs has also relied upon the judgment of this Court reported in AIR 1990 MADRAS 314 (D.Gopalan Vs. Raghava Naicker & others), wherein it has been held as follows:-
Ordinarily, when an application seeking leave to institute a suit in a representative capacity is filed under Order III Rule 2 of the Original Side Rules read with Order 1 Rule 8 of the Code of Civil Procedure, such an application should be dealt with under Order XIV Rule 10(xiv) of the Original Side Rules by the Master. However, in this case, what is found is that the appellant had moved application No.2957 of 1988 before the Judge on the Original Side on 22.06.1988 as a motion after lunch. Presumably, the appellant was obliged to do so because he wanted to secure orders in the other application filed, which could not have been dealt with by the Master of this Court. Obviously, therefore, when the appellant moved the Judge on the Original Side, it follows that the appellant had given up or waived the normal procedure prescribed in Order XIV Rule 10(xiv) of the Original Side Rules with reference to such an application, namely, a disposal of the same by the Master. It is also pertinent to point out that under Order 1 Rule 8 of the Original Side Rules, non-compliance with these rules would not in any manner render the proceedings in any suit or matter void, unless so directed by Court. Now the question is, whether the proceeding should be declared to be void, though learned counsel for the appellant in the course of his argument claimed that the proceedings are non est. We do not see how the proceedings could be characterised as non est, for, the outcome of the proceedings, was only the result of the course adopted by the appellant himself and even as per Order 1 Rule 8 of the Original Side Rules, non-compliance with these rules would not render the proceedings void, unless so directed by the Court. Thus, by relying upon the dictum laid down in the above said judgment, the learned counsel for the applicants/plaintiffs submitted that in the present case, the application under Order I Rule 8 of CPC has been filed along with the suit. Hence, it cannot be heard by the learned Master. The Court has discretionary power in the Original Side to decide the application.
29.From a reading of the above said judgment, I find that the facts of that case would show that an application under Order III Rule 2 of the Original Side Rules read with Order 1 Rule 8 of CPC was filed by the General Secretary of the Madras District Social Welfare Association and majority of the members of the said Association are devotees and the proceedings were initiated in a representative capacity on behalf of the members of the Association. In that case, the appellant therein moved Application No.2957 of 1988 before the Single Judge, as a motion after lunch, in order to secure an emergent order in the other applications, which cannot be dealt with by the Master of the Court. Obviously, when the appellant therein moved the Single Judge on the Originally Side, it follows that the appellant had given up or waived the normal procedure prescribed under Order XIV Rule 10(xiv) of the Original Side Rules, with reference to such an application, namely disposal of the same by the Master. In the appeal, when a submission was made to the effect that since the application had been dealt with by the Judge on the original side instead of the Master, the proceedings has to be declared as void, it has been held by the Division Bench of this Court that the appellant therein had not raised any objection before the Single Judge that the application should have been heard by the Master and hence, it should be taken as the appellant therein had no objection for the matter being dealt with by the Single Judge and therefore, the appellant cannot be heard to raise any objection with the reference to the propriety of the course adopted by the Single Judge in the disposal of the application.
30.In my considered opinion, the dictum laid down by the Division Bench of this Court in the above said judgment is totally on different factual aspect. In fact, by considering the judgment rendered by the Division of this Court reported in AIR 1990 MADRAS 314 (D.Gopalan Vs. Raghava Naicker & others), it has been held by this Court in O.S.A.No.325 of 2011 vide judgment dated 31.10.2011 as follows:-
19.Considering the same, as per the decision of this Court reported in AIR 1990 MADRAS 314 (D.Gopalan Vs. Raghava Naicker and others) as well as Order III Rule 2 of O.S.Rules, read with Order I Rule 8 of CPC, such an application should be dealt with under Order XIV Rule 10(xiv) of O.S.Rules by Master, but, however, in this present case in hand, the application was posted before the Single Judge. The learned Single Judge has allowed the application. So the right of appeal to this respondents/appellants herein has been deprived. In such circumstances, as per the decision, non compliance with this rules would not render the proceedings void unless directed by this Court and the Court has every right to set aside such proceeding, but such proceedings may be set aside either wholly or in part as irregular or amended, or otherwise dealt with, in such manner and upon such terms as the Court thinks fit. So considering the same, we are of the view that the order passed in Appln. No.2524 of 2011 is set aside. The application is remitted to Master with a direction to deal with application A.No.2524 of 2011 in accordance with law. Consequently, the connected Miscellaneous Petitions are closed. No costs. In view of the above said judgment, the application filed under Order I Rule 8 of CPC should be dealt with by the Master under Order XIV Rule 10(xiv) of OS Rules and if the same is posted before the Single Judge, parties would be deprived of their valuable appeal right. Keeping the dictum laid down in the above said judgment, I am of the opinion that the application filed under Order I Rule 8 of CPC should be dealt with only by the Master. Therefore, the parties will have a valuable appeal remedy as against the order of the Master. Therefore, I am not inclined to accept the submission made by the learned counsel for the applicants/plaintiffs that the application filed under Order I Rule 8 of CPC could be disposed of by the Single Judge.
31.But, it is the submission of the learned counsel for the applicants/plaintiffs that obtaining orders under Order I Rule 8 of CPC before the Master would consume time. If there is any necessity to secure an emergent interim order, then the time that is going to be consumed in obtaining order from the Master would defeat the purpose of obtaining interim order. But, in my considered opinion, filing application under Order I Rule 8 of CPC is purely procedural in nature. Obtaining permission under Order I Rule 8 of CPC will have a binding effect of the decree that is going to be passed as against the unregistered Society. Such permission could be obtained at any stage of the trial. Hence, I am of the opinion that pendency of application under Order I Rule 8 of CPC will not be a bar to get an emergent interim order, if situation so warrants. But, I do not find any such an emergent situation to grant an interim order in this case.
32.In this regard, a reference could be placed in the judgment reported in CDJ 2013 MHC 2623 (Royal Villa Residents Association, represented by its President Vs. The Project Management Committee, Kotturpuram Officers Co-operative Housing Society, represented by its Authorised persons & others), wherein it has been held that the application under Order I Rule 8 of CPC can be decided even during the course of trial, by framing such issues. If there is any emergent situation, interim order could be obtained from the Court even during the pendency of the application under Order I Rule 8 of CPC. Therefore, I am not inclined to accept the submission made by the learned counsel for the applicants/plaintiffs that obtaining order from the Master in the application under Order I Rule 8 of CPC would consume time, which would defeat the purpose of obtaining any emergent interim order.
33.It is yet another contention of the learned counsel for the respondents that the respondents 3, 4 & 5 are separate entities and permission under Order I Rule 8 of CPC has to be obtained for them also, whereas the applicants/plaintiffs have filed the application under Order I Rule 8 of CPC for permission to file the suit as against the 1st respondent/Church only. But, it is the reply of the learned counsel for the applicants/plaintiffs that CSI is a religious denomination and it must have an organisation, members and distinctive belief of its members and it is governed by its Constitution. The respondents 3 & 4 are the Officers created as per the provisions of the Constitution of the 1st respondent/CSI Church and they are bound by the Constitution of the 1st Respondent. They are not separate entities. Therefore, there is no need to file separate application under Order I Rule 8 of CPC as against them.
34.With regard to the submission made on either side in respect of filing application under Order I Rule 8 of CPC as against the unregistered Society, a reference could be placed in the judgment made by this Court in C.R.P.No.1879 of 1998, dated 09.11.1998, wherein it has been held as follows:-
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 CSI, 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 I Rule 8 of CPC 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 I Rule 8 of CPC. From the dictum laid down in the above said judgment, I am of the opinion that since the respondents 3 & 4 were added as party to the suit in their official capacity and the 5th respondent being the unregistered society, institution of suit itself should be only with the permission of the Court under Order I Rule 8 of CPC as against them also. Hence, obtaining permission under Order I Rule 8 of CPC as against the defendants 3, 4 & 5 is also necessary, to have a binding effect of the decree that is going to be passed as against them. Therefore, I am of the opinion that a separate application has to be filed by the applicants to obtain leave under Order I Rule 8 of CPC to file the suit as against the defendants 3, 4 & 5.
35.Since this Court has come to the conclusion that the application has to be dealt with by the Master, application filed under Order I Rule 8 of CPC viz., A.No.3014 of 2013 shall be posted before the Master.
In the result, leave is granted in A.No.3015 of 2013.
A.No.3014 is directed to be posted before the Master. The applicants are also at liberty to file application under Order 1 Rule 8 of CPC as against the other defendants.
.01.2014 Index : Yes / No Internet : Yes / No ssv R.SUBBIAH, J., ssv A.Nos.3014 & 3015 of 2013 .01.2014