Madras High Court
Rev.C.Durai Arasu vs The India Evangelical Lutheran Church on 26 July, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2018
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.373 of 2017
and
A.Nos.4814 & 4281 of 2018
O.A.Nos.236
AND
TR.C.S.No.741 of 2017
and
A.No.1695 of 2018
Rev.C.Durai Arasu
Pastor, Thuthipet B. Pastorate ... Plaintiff in C.S.373/2017
India Evangelical Lutheran Church (IELC)
Rep. by its General Treasurer
Rev.R.Vijayakumar ... Plaintiff in Tr.C.S.741/2017
Vs.
1.The India Evangelical Lutheran Church
(Regd. Society under No.11/1959)
Rep. by its President / General Secretary/
General Treasurer
2.S.Benjamin Franklin ... Defendants in C.S.373/2017
1.Mr.Baulsundar
2.R.Bennet Stephenson ... Defendants in Tr.C.S.741/2017
Prayer in C.S.No.373 of 2017: The Civil Suit has been under Order IV Rule 1 of High Court Original Side Rules, 1956 read with order VII Rule 1 of C.P.C.
a) to declare that the 2nd defendant is not the chief election commissioner of the 1st defendant society;
b)declaration declaring that the election notice issued by the 2nd defendant dated 28.02.2017 pertaining to Ambur Circle positions, Ambur Synod positions and IELC positions Notification No.1 is illegal and null and void.
c)declaration declaring that the election notice issued by the 2nd defendant dated 26.03.2017 pertaining to Ambur Circle positions, Ambur Synod positions and IELC positions Notification No.1 is illegal and null and void.
d)grant permanent injunction restraining the 2nd defendant, his men, agents, or anybody working under him or in association with him from in any way conducting elections for Ambur Circle positions, Ambur Synod positions and IELC positions Notification No.1; dated 26.0.2017 schedule on 25 & 26 May 2017 or any other subsequent date and place for the 1st defendant.
e)grant a mandatory injunction directing the 1st defendant to draw up a lawful memorandum and bye law for the 1st defendant in accordance with the Tamil Nadu Societies Registration Act, 1975 along the lines of the aims and objectives enshrined in the first memorandum and Byelaw in Association No.11 of 1959 and for costs.
Prayer in Tr.C.S.741 of 2017: The plaint has been filed under Order VII Rule 1 of C.P.C.
a)for declaration declaring that the notification No.2 of 2017 issued by the 2nd defendant dated 06.06.2017 as null and void.
b)for a permanent injunction restraining the defendants, their men, agents, servants or anybody else claiming through or under them in any manner from interfering with the smooth functioning of the office of the Indian Evangelical Lutheran Church (IELC).
c)for a permanent injunction restraining the 2nd defendant, his men, agents, servants, or any body else claiming through or under him in any manner from conducting the election to India Evangelical Lutheran Church (IELC) to be held on 26.062017 or any other dates as per notification dated 06.06.2017 and for costs.
For Plaintiff : Mr.V.Subramanian
in C.S.373/2017
For Defendant : M/s.Adinaratana Rao
in C.S.373//2017 for 1st defendant's church
Mr.T.Velumani for D2
For Plaintiff : Mr.K.S.Arivalagan
in Tr.CS.741/2017
For Defendants : Mr.V.Govardhanan
in Tr.CS.741/2017 for 1st defendant's church
COMMON JUDGMENT
The background of the suits pending before this Court pertain to the elections of the office bearers of the Indian Evangelical Lutheran Church (IELC). The Church represented by Rev.R.Vijayakumar, originally filed the suit in O.S.No.3261 of 2017 before the City Civil Court, Chennai which has been transferred to this Court as Tr.C.S.No.741 of 2017, for declaration, declaring that the election notification issued by the 2nd defendant dated 06.06.2017 is null and void and also for permanent injunction restraining the 2nd defendant from conducting elections to be held on 26.05.2017 in the above suit. When the interim application is pending for orders in the above suit, all of these subsequent events have taken place.
2.In the meanwhile, one Rev.C.Durai Arasu filed a Civil suit in C.S.No.373 of 2017 before this Court for declaration, declaring the election notice issued by the 2nd defendant viz. S.Benjamin Franklin on is null and void and also for permanent injunction restraining the 2nd defendant from conducting election on 25 & 26 May 2017. The above suit is pending before this Court.
3.The transfer civil suit in Tr.C.S.No.741 of 2017 said to have been filed to transfer the suit in O.S.No.3261 of 2017 pending before the City Civil Court, Chennai. The memo has also been filed as if the plaintiff has consent to transfer the suit in O.S.No.3261 of 2017 which is pending before the City Civil Court to transfer the same to this Court.
4.Likewise, similar memo is also filed before the concerned City Civil Court, contending that in view of the application pending for transfer of the suit, the plaintiff is not pressing any order in the injunction application filed before the City Civil Court. While filing such memo, virtually, the City Civil Court was prevented from passing any orders in the interim injunction application.
5.In the meanwhile, the suit in O.S.No.3261 of 2017 from the City Civil Court has been transferred to this Court as Tr.C.S.No.741 of 2017 on the ground that the memo of no objection is said to have been given by the original plaintiff.
6.In fact, the record shows that the defendants claiming to be the plaintiff in the above suit expressed no objections for transferring of the suit having cleverly made such submissions, the above suit has been transferred to this Court.
7.In the meanwhile, the plaintiff in the Suit in C.S.No.373 of 2017 before this Court proclaimed himself as the elected Vice President. The election is said to have taken place on 26.05.2017. Now, he is also claiming rights based on the subsequent amended Bye laws.
8.It is to be noted that the amended Bye laws have been stayed by this court in W.M.P.No.6212 of 2016. It is also curious to note that for similar issue, the plaintiff in C.S.No.373 of 2017 has filed a suit in O.S.No.153 of 2016 before the Sub-ordinate Court, Nagercoil and against the interim order passed in the above suit, he filed CRP(MD).No.2462 of 2016 before the Madurai Bench of Madras High Court. The above CRP(MD) No.2462 of 2016 is dismissed by the order dated 15.02.2017 with a direction to the Trial Court to dispose of the suit on or before 30.06.2017.
9.Having suffered such an order, it appears that the plaintiff has withdrawn the suit filed before the Trial Court on 30.06.2017. It is to be noted that the present suit in C.S.No.373 of 2017 has been filed before this Court on 27.04.2017. When this Court has found that some of the advocates without instructions from the original client have filed their written statements along with the condonation application, passed an order on 19.07.2018, directing the Bar Council of Tamil Nadu to take disciplinary proceedings against the such advocates.
10.Now, the plaintiff in C.S.No.373 of 2017 has come before this Court for withdrawal of the suit. All these facts clearly indicate that the suit is nothing but mere abuse of process of law and has been filed only to enjoy the Church properties.
11.Therefore, I am of the view that though the plaintiff seeks to withdraw the suit, such withdrawal cannot be permitted. If such withdrawal is permitted, it will give licence to him to continue the office, since, he declared himself as the Vice President. Now the election said to have been already held on 26.05.2017. In fact above Election sought to be prevented by the defendants in the suit before the City Civil Court. The said suit has conveniently and cunningly got transferred to this Court by preventing the concerned Court from passing any orders, by doing so, he himself now claims to be the Vice President now seeks to withdraw this suit.
12.Hence, I am of the view that such suits are allowed to be withdrawn, it will amount to give licence to unscrupulous litigants to use the process of law for their advantageous position. Therefore, the suit in C.S.No.373 of 2017 is liable to be struck off.
13.Further, this Court is of the view that for smooth running of the Church and in view of the serious allegations made against each other, for the interest of the Church and its members, Retired Judge of this Court to be appointed as Administrator of the Church to maintain and to conduct elections and the entire administration should be monitored as per Byelaws of Church by a responsible person like retired Judge.
14.Accordingly, C.S.No.373 of 2018 is struck off with heavy cost of Rs.50,000/-. Consequently, connected applications are closed.
15.The suit in O.S.No.3261 of 2017 transferred from the City Civil Court i.e. Tr.C.S.No.741 of 2017 shall be returned to the City Civil Court to restore the same in its file. The Trial Court shall hear the suit from the stage when it was transferred to this Court. Consequently, connected applications are also transferred to the Trial Court.
26.07.2018 kas CC: XV Asst City Civil Court Chennai-104 N.SATHISH KUMAR, J.
kas C.S.No.373 of 2017 and A.Nos.4814 & 4281 of 2018 O.A.Nos.236 AND TR.C.S.No.741 of 2017 and A.No.1695 of 2018 26.07.2018