Madras High Court
Rt.Rev.Dr.J.A.D.Jebachandran vs The Moderator on 20 April, 2017
Author: Nooty.Ramamohana Rao
Bench: Nooty.Ramamohana Rao
In the High Court of Judicature at Madras Dated : 20.4.2017 Coram : The Honourable Mr.Justice NOOTY.RAMAMOHANA RAO and The Honourable Mr.Justice S.M.SUBRAMANIAM Original Side Appeal No.269 of 2014 & CMP.No.6140 of 2017 Rt.Rev.Dr.J.A.D.Jebachandran, Bishop of Thoothukudi - Nazareth Diocese ...Appellant Vs The Moderator, the Church of South India, CSI Synod Centre, Chennai-14. ...Respondent APPEAL under Order XXXVI Rule 1 of the Original Side Rules of High Court read with Clause 15 of the Letters Patent against the judgment and decree dated 30.6.2014 in A.No.5968 of 2013 in C.S.No.710 of 2013. For Appellant : Mr.V.Raghavachari For Respondent : Mr.V.Prakash, SC for Mr.Adrian D.Rozario JUDGMENT
(Judgment was delivered by NOOTY.RAMAMOHANA RAO,J) This original side appeal is preferred by the plaintiff, whose plaint in original Civil Suit No.710 of 2013 stood rejected by allowing an application in A.No.5968 of 2013 moved in that suit by the defendant.
2. The Church of South India is having 22 Dioceses spread all over South India and also at Jafna in Sri Lanka. Tirunelveli Diocese was bifurcated and Tuticorin - Nazareth Diocese was formed during the years 2003-2004. A Bishop will be selected from out of four persons picked up by the Diocesan Council Members. The Selection Committee for selecting the Bishop will be constituted during the General Body Meeting of the Synod.
3. It is the claim of the plaintiff that the plaintiff has been selected, appointed, consecrated and installed as the first Bishop of Tuticorin - Nazareth Diocese during May 2006. Thus, the plaintiff became the religious and administrative head of Tuticorin - Nazareth Diocese. The plaintiff, upon considering the letter of the defendant dated 16.1.2013 as an act of interference in the administrative affairs of Tuticorin - Nazareth Diocese, instituted a civil suit in O.S.No.64 of 2013 on the file of the Subordinate Court, Tuticorin seeking declaration that the letter dated 16.1.2013 is null and void. He also obtained an interim injunction in that suit on 25.2.2013 restraining the defendant therein from interfering with the functioning of the plaintiff as the Bishop of Tuticorin - Nazareth Diocese.
4. The meeting of the Synod Executive Committee was convened to be held on 25.2.2013. One of the agenda items said to have been slated for transaction at that meeting was confirmation of minutes of the previous meeting held on 3rd and 4th January 2013. But, however, the draft minutes of such earlier meeting have not been enclosed to the intimation letter dated 29.1.2013 of the Synod Executive Committee meeting to be held on 25.2.2013.
5. Therefore, the plaintiff appears to have raised objection at the meeting, for non supply of the draft minutes of the earlier meeting held on 3rd and 4th January 2013 for their confirmation during the meeting on 25.2.2013. It appears that the Secretary of the Synod refused to divulge any information relating to the minutes of the earlier meeting and when the plaintiff realized that the Executive Committee of the Synod was proceeding further, the plaintiff sat on the floor in protest of the manner, in which, the said Executive Committee meeting was carried on. This conduct of the plaintiff appears to have been viewed seriously and the Executive Committee of the Synod had taken a decision on 03.4.2013 to suspend the plaintiff from the office of Bishop of Tuticorin - Nazareth Diocese.
6. Challenging this action of placing him under suspension, the plaintiff instituted a civil suit in O.S.No.2065 of 2013 on the file of the 16th Assistant Judge, City Civil Court, Chennai seeking the following reliefs :
"(a) declaration declaring the letter of the defendant dated 3.4.2013 addressed to the plaintiff as null and void
(b) award the cost of the suit
(c) to grant such other relief or reliefs as this Hon'ble Court may deem fit to the facts and circumstances of the case and thus render justice."
7. It appears that some of the members of the Tuticorin - Nazareth Diocese had represented to the Deputy Moderator bringing out that the action of the Executive Committee of the Synod, in placing the plaintiff - Bishop of the said Diocese under suspension, was improper. It also appears that the General Secretary of the Church of South India had addressed to the Moderator - the defendant in that suit, on 19.4.2013 seeking clarifications and explanations on each of the issues mentioned in the complaint made by some of the members of the Executive Committee. The defendant in the suit, it appears, also started functioning as Bishop-In-Charge of the Tuticorin - Nazareth Diocese. It further appears that he also made certain appointments on 27.4.2013. One other member of the Karnataka Diocese had also filed a civil suit calling in question the actions of the defendants in the above mentioned suit.
8. Therefore, the plaintiff alleges that he was approached by the Moderator with a request to withdraw the suit filed by him in O.S.No.2065 of 2013 and sought for a letter of apology from the plaintiff for all that had happened on 25.2.2013, so that way can be cleared for revocation of the suspension of the plaintiff. Hence, believing and trusting the representation of the defendant, the plaintiff appears to have tendered an apology in writing to the defendant in the suit on 08.5.2013. While tendering his unconditional apology for his offensive conduct towards the General Secretary and the Executive Committee of the Synod at its meeting on 25.2.2013 and sincerely seeking pardon for such conduct, the plaintiff appealed to the Moderator - the defendant in the suit to consider the said factum of tendering apology as a mitigating factor to revoke his suspension and for restoring him to the office of Bishop of the Tuticorin - Nazareth Diocese and to drop further action. In that letter dated 08.5.2013, the plaintiff had undertaken to withdraw the cases filed by him against the CSI Synod.
9. It appears that the plaintiff had realized that due to pendency of the civil suit in O.S.No.2065 of 2013, further action on his letter of apology dated 08.5.2013 was not taken and hence, he addressed another communication to the Moderator - the defendant on 27.6.2013 proposing to withdraw the suit filed by him as suggested by the Moderator and he also enclosed a communication from his counsel in the suit addressed to the defendant on 01.7.2013, informing that the suit in O.S.No.2065 of 2013 has been withdrawn.
10. It appears that the Synod Working Committee met on 25.7.2013 at the CSI Centre, Chennai. At that meeting, the apology letter of the plaintiff was read out by the Moderator - the defendant in the suit. It was also brought out that the plaintiff had withdrawn the court cases filed by him against the Synod at Chennai as well as Tuticorin. Since the Diocesan Council elections were scheduled to be held on 07.8.2013, the Working Committee appears to have resolved to request the Moderator to take a decision on the revocation of the suspension and reinstatement of the plaintiff as Bishop after the Diocesan Council elections were over.
11. Even after the Diocesan Council elections were over in the first week of August 2013, the plaintiff has not been reinstated back as Bishop. He also appears to have addressed a communication to the Moderator on 27.8.2013. In that letter, he traced as to how the Moderator assured him of revocation of his suspension provided the plaintiff tenders apology and also withdraws the cases filed by him. He averred in that letter as under :
"....So, as per your instruction and promise, I withdrew the two cases and submitted the order copies regarding the withdrawal of cases to you, but this time also you didn't keep your promise made to me."
12. The following passages in the communication dated 27.8.2013 hold some significance for our enquiry and hence, they are quoted as hereunder :
"Fourth time you said that you will revoke the suspension by discussing the matter in the CSI TA Meeting which is going to be held on 26.8.2013. So on 20.8.2013, 21.8.2013, 22.8.2013 and 26.8.2013 again I met you and the General Secretary and stayed in the guest room of CSI Synod and requested to revoke the suspension. But I am sorry to say that till date there is no response from your side and it is clear that you are not taking any steps to revoke my suspension and reinstate me as the Bishop of CSI, Thoothukudi - Nazareth Diocese.
With a sad heart, I am sorry to say that I have obeyed your words and done everything as per your instructions and I am patiently waiting for your favourable action for the past five months but you both are only torturing me by mentally and physically for a very long period and also till date there is no favourable response from your side regarding my suspension."
13. In response to this letter of the plaintiff, the Moderator had replied on 31.8.2013. In paragraph 6 of this communication dated 31.8.2013, the Moderator had replied as under :
"The above constitute the true facts and circumstances surrounding your suspension/ apology and the allegations to the contrary in your letter under reply are false and hereby specifically denied. You have contradicted your letter of apology in the process and have literally asserted that you are entitled as of right to the revocation of your suspension. In fact, such allegations and actions of yours lend credence to the fact that your apology is not honest and genuine for the same to be accepted on the face of it."
14. The Moderator concluded this communication dated 31.8.2013 setting forth that there are serious charges, which are pending against the plaintiff - Bishop and hence, without consulting all the Bishops of the CSI (Council of Bishops) for constituting the Court of the Synod to conduct an enquiry there-into, his suspension was refused to be revoked. In those circumstances, the plaintiff has once again instituted original C.S.No.710 of 2013 on the file of the Original Side of this Court on 11.10.2013 seeking the following reliefs :
"(1) for a declaration that the order of suspension dated 03.4.2013 is ultra vires the Constitution of Church of South India which has been clandestinely restored by the defendant by making the plaintiff withdraw the suit filed by the plaintiff earlier (2) for a permanent injunction restraining the defendant, his men or agent claiming under him from proceeding to constitute the Court of Synod without following the procedures contemplated in the Constitution of Church of South India against the plaintiff and pass any other orders as the Honourable Court deems fit and (3) cost of the suit."
15. In this civil suit, the defendant filed an application in A.No.5968 of 2013 for rejection of the plaint in C.S.No.710 of 2013 on the ground that for the same reliefs, the plaintiff has already instituted O.S.No.2065 of 2013 and that he had also withdrawn the said suit on 01.7.2013 without liberty to institute a fresh suit in respect of the same subject matter and hence, the plaint in the present civil suit in C.S.No.710 of 2013 shall be rejected. It is that application, which is allowed and hence the present original side appeal.
16. Order XXIII of the Civil Procedure Code deals with withdrawal and adjustment of suits.
(i) Rule 3 thereof sets out that where the Court is satisfied -
(a) that a suit must fail by reason of some formal defect or
(b) that if there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim, it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
(ii) Rule 4 thereof clearly sets out that where the plaintiff -
(a) abandons any suit or part of claim under Sub-Rule (1) or
(b) withdraws from a suit or part of claim without the permission referred to in Sub-Rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
17. From a reading of these Rules, it becomes imminently clear that when once the plaintiff abandons any suit or part of a claim or withdraws from a suit or part of a claim without seeking liberty to institute a fresh suit in respect of the same subject matter, such plaintiff shall be precluded from instituting a fresh suit in respect of such subject matter.
18. The Supreme Court had occasion to consider the rationale behind such a Rule in the case of Sarguja Transport Services Vs. State Transport Appellate Authority [reported in 1987 (1) SCC 5], in which, the relevant portion reads thus :
The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-Rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-Rule (3) in order to prevent the abuse of the process of the Court.
19. Thus, this principle behind Order XXIII is rested upon a Public Policy to prevent unwarranted harassment by way of successive suits from being instituted and hence, to prevent the abuse of the process of court, such Rule has been laid down. It should also be noticed that explaining the principle set out in Sarguja Transport Services, the Supreme Court in the case of Sarva Shramik Sanghatana (KV) Vs. State of Maharashtra [reported in 2008 (1) SCC 494] held that where withdrawal of the case was bona fide and not a case of bench hunting with a view to avoid an adverse order likely to be passed against it, institution of subsequent case is permissible.
20. Similarly, the Supreme Court in the case of K.S.Bhoopathy Vs. Kokila [reported in 2000 (5) SCC 458] has also brought out the necessity to consider all the relevant aspects of the matter including the desirability of permitting a party to start a fresh round of litigation for the same cause of action.
21. It is appropriate to notice that long years ago, the Calcutta High Court, in the case of Gopal Chandra Banerjee Vs. Purna Chandra Banerjee [reported in 1900 (4) Calcutta Weekly Notes 110], had an occasion to consider and held as under :
"The mere fact of two suits being in respect of the same property would not be sufficient to make the latter suit one for the same matter as the former, when the set of facts leading to the two suits and the relevant claim under them are different rendering the latter suit as maintainable."
22. The Madras High Court, in the case of Narayanaswami Udayan Vs. Mannar [reported in 1929 (3) LW 562], had occasion to consider the effect of withdrawal of an earlier suit without seeking liberty to institute another suit. Considering the plea of bar contained under Order XXIII Rule 3, it has been held as under :
"On these facts, I have to decide the plea of bar under Order 23, Rule 1 (3), Civil P.C., raised by the defendant. Order 23, Rule 1 (3) runs as follows:
Where the plaintiff withdraws from a suit or abandons part of a claim, without the permission referred to in Sub-Rule 2, he shall be precluded from instituting any fresh suit in respect of such subject matter or part of the claim.
The decision of the question would thus turn on the meaning to be attached to the words 'subject matter,' or 'the claim,' referred to in the section. As pointed out by the Full Bench of this High Court in the case reported in Surja Reddi v. Subba Reddi [1916 (39) Mad. 987] at page 996 :
'The terms 'subject matter,' and 'the same matter,' which occurred in the corresponding Section 373, of the Old Code, have not bean defined, and must, we think, be construed strictly in a penal provision of this character. Without attempting an exhaustive definition of all that may be included in the term 'subject-matter,' we are of opinion that where as in the present case, the cause of action and the relief claimed in the second suit are not the same as the causes of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. This was expressly decided in Gopal Chandra Bannerjee v. Purn Chandra Banerjee [1900 (4) C.W.N. 110], with which we agree.' The Full Bench was composed of the learned Judges, Sir John Wallis, C.J., and Abdur Rahim and Srinivasa Iyengar, JJ., and the opinion of the Full Bench was delivered by Sir John Wallis, C.J. Applying the test enunciated by the Full Bench, I am of opinion that the present suit is not barred by reason of the previous suit.
..............
'The series of acts' or transactions ' alleged to exist,' giving rise to the reliefs claimed: (See Order 1, Rule 1, Civil P. C) are, I think, different in the two suits, and I am of opinion that 'the subject matter' and 'claim' in the two suits are different within the meaning of Order 23, Rule 1 (3), Civil P.C. I am supported in this view by the decisions of this Court reported in Surja Reddi v. Subba Reddi [1916 (39) Mad. 987], Thrikaika Mudathil Raman v. Krishen Nair [1906 (29) Mad. 153] and Mangalathammal v. Virappa Goundan [1919 MWN 287] and as I understand the judgment, also by the decision in Mahomed Rowther v. Abdul Rahman [AIR 1923 Mad. 257]."
23. We bear in mind the above said legal principles on the subject and also bear in mind the principle enunciated by the Supreme Court in Ramesh Chandra Sankla and Others Vs. Vikram Cement & Others [reported in 2008 (14) SCC 58], wherein in paragraph 53, it has been held that question of bar under Order XXIII Rule 4 is a mixed question of law and fact in the following words :
"A question whether a petition is barred by res judicata or under Rule 4 of Order XXIII of the Code is not a `pure' question of law. It is a question of fact or at any rate, a mixed question of law and fact. In absence of pleadings and necessary materials in support of such plea, petitions cannot be dismissed on the bald assertion by a party that they were not maintainable."
24. In the present case, the plaintiff, in the paragraph relating to cause of action, clearly adverted to the subsequent events and developments that have taken place after the earlier suit in O.S.No.2065 of 2013 was instituted. He traced therein all the events right upto the point of institution of the present suit. In paragraphs 14 and 15, the following averments have been made :
"14. The plaintiff respectfully submits that while this being so, a member of the Karnataka Diocese had filed a case against the defendant questioning his right to conduct consecration ceremony in St. Mark's Cathedral as the defendant was facing serious charges and a complaint was lodged with the office of the Synod and the enquiry in the said complaint is pending against him. The plaintiff respectfully submits that on coming to know about the pendency of the said suit, which becomes prejudicial to the functioning of the Moderator himself, defendant approached the plaintiff and pressurizing and requesting him to withdraw the suit filed by him in O.S.No.2065 of 2013 to reduce the number of cases against him and also asked for a letter of apology stating that there would be a revocation of the order of suspension dated 25.2.2013. Believing and trusting the representation of the defendant, the plaintiff wrote a letter to the Moderator in his own hand seeking apology and gave it to him which was received by them, but not accepted, as it was not upto their expectation. The plaintiff respectfully submits that thereafter the defendant gave a letter of apology prepared by their advocate to the plaintiff and made him sign the letter of apology prepared by the advocate of the defendant under coercion. The plaintiff respectfully submits that the plaintiff being a clergyman is fluent only in Tamil and Theology and he is unacquainted with flowery words used in English language. The plaintiff can only understand simple English and cannot read legal language in English fluently. The letter of apology dated 08.5.2013 as already stated had been prepared by the advocate of the Synod and in order to put a quietus to the issue, the plaintiff had signed the same.
15. The plaintiff respectfully submits that on 27.6.2013, he had also signed the letter prepared by his advocate for the withdrawal of the suit and the withdrawal memo. The plaintiff respectfully submits that the letter addressed by the plaintiff to the defendant dated 27.6.2013 and the withdrawal memo had been done in good faith that the defendant would keep up his word and revoke the order of suspension as stated by him. The suit in O.S.No.2065 of 2013 City Civil Court and O.S.No.64 of 2013 on the file of Sub-Court, Thoothukudi was dismissed as withdrawn on 01.7.2013......"
25. There afterwords, while tracing the post events after the earlier suit was dismissed, it is asserted that the plaintiff met the defendant on 19.7.2013 with a request to revoke the suspension and that on 25.7.2013, the Working Committee of the CSI Synod would be passing a resolution for enabling the revocation of suspension of the plaintiff and all other subsequent developments.
26. It is, therefore, the case of the plaintiff that he had withdrawn the earlier suit based upon the understanding arrived at by and between the parties. It is the specific case of the plaintiff that the letter of apology dated 08.5.2013 has been drafted by the learned advocate appearing for the defendant in the suit in O.S.No.2065 of 2013.
27. If that were to be really correct, the inference, which is liable to be drawn, is that there was a clear understanding between the parties that upon withdrawing the two civil suits in O.S.No.64 and 2065 of 2013 instituted by the plaintiff and also by tendering a sincere apology, the actual relief prayed for in O.S.No.2065 of 2013 could still be accorded. If that relief was not forthcoming any further, we fail to see any good reason as to why the plaintiff shall be prevented from instituting a fresh suit.
28. As we have already noticed, the question as to whether the bar contemplated by Rule 4 of Order XXIII of the Civil Procedure Code being a mixed question of fact and law, the plaintiff ought to have been provided an opportunity to establish the facts, which he has pleaded in his plaint. If he were to establish that there were consecutive meetings between the defendant in the suit and the plaintiff and there was some understanding struck between the parties, which will, in fact, help in restoration of the plaintiff back as a Bishop of the Diocese and also allow smooth functioning of not only the Diocese, but also the CSI, Synod itself, the conduct of the plaintiff in withdrawing the earlier suit must be taken to be a bona fide conduct.
29. Further, the cause of action is a bundle of facts, leading to the institution of a civil suit. If there are certain developments, which have taken place after the earlier civil suit in O.S.No.2065 of 2013 was withdrawn, there appears to be warranting a serious consideration of such developments before a firm decision can be arrived at for upholding the plea raised by the defendant in the present suit for rejecting the plaint.
30. In that context, it is only appropriate to notice that on 19.7.2013, the General Secretary of the Church of South India appears to have called for clarifications and explanations of the defendant in O.S.No.2065 of 2013. On 08.5.2013, the plaintiff addressed to the defendant in that suit to consider his act of tendering unconditional apology as a mitigating factor for revoking his suspension. What is most important, in our opinion, is the communication addressed by the plaintiff to the defendant on 27.6.2013. The short communication reads as under :
"Respected sir, Sub : Request to withdraw the suspension from the office of Bishop of Thoothukudi - Nazareth Diocese - reg.
Ref : O.S.No.2065 of 2013 on the file of the XVI Assistant City Civil Court, Chennai filed by me against the suspension order.
***** As suggested by you, I am withdrawing the suit filed by me in the City Civil Court, Chennai in O.S.No.2065 of 2013. The copy of the withdrawal memo to be filed by me in the Court is enclosed. The suit is posted for hearing on 01.7.2013 and on that date, I shall withdraw the suit.
Thanking You, Yours Sincerely, Sd/-
(Jebachandran)"
31. The very opening sentence of this communication refers to the following words :
"As suggested by you, I am withdrawing the suit...." "
32. There is another communication sent by the advocate appearing for the plaintiff in O.S.No.2065 of 2013 addressing the defendant about the fact of dismissal of the said suit as withdrawn. It is thereafter the Synod Working Committee met on 25.7.2013 at the CSI Centre, Chennai where the Moderator - the defendant in the suit, has clearly explained all these developments to the Executive Committee. The Working Committee resolved to request the Moderator - the defendant in the suit to take a decision on the revocation of the suspension and reinstatement of the Bishop after the slated diocesan elections on 07.8.2013. Therefore, the averment of the plaintiff that he has acted in the manner, in which, he was instructed after filing O.S.No. 2065 of 2013, lends support to his present claim that he has withdrawn the earlier suit due to an understanding arrived at by and between the parties. If that were not to be so, there would not have been any occasion for the Working Committee of the Synod to request the Moderator - the defendant in the suit to take a decision for revocation of the suspension of the plaintiff.
33. It is important to notice that the Working Committee, at its meeting held on 25.7.2013, was not reconsidering independently on their own, the issue as to whether the suspension of the plaintiff on 03.4.2013 should be revoked or not. It had passed a resolution only upon the Moderator - the defendant in the suit bringing to their notice the actions of the plaintiff by tendering unconditional apology and also withdrawing the suit. In fact, all that the plaintiff has reiterated in his communication dated 27.8.2013 was that when he has obeyed the words of the defendant - Moderator and done everything as per his instructions, there is no favourable response from the defendant - Moderator thereafter. We are, therefore, clearly of the view that withdrawal of the earlier suit does not really come in the way of maintaining the present suit in C.S.No.710 of 2013.
34. The learned Senior Counsel appearing on behalf of the respondent has pointed out that the plaintiff has also prayed for a separate relief in the form of an injunction. But, in the paragraph slated to describe the cause of action, there was no formal reference even as to why any such injunction should also be granted by the Court and hence, to the extent of seeking the relief of injunction, the plaint, for non disclosure of cause of action in terms of Order VII Rule 11(a) of the Civil Procedure Code deserves to be rejected.
35. As we have understood from the averments of the plaint, the prayer for grant of injunction is only a consequential relief. That was prayed for in furtherance of the declaratory relief prayed for at prayer No.1. Hence, for seeking a consequential relief, the same cause of action, which has been narrated for seeking the main relief of declaration, would sustain and would be sufficient. Therefore, we are not in a position to accede to the contention that the plaint ought to have been rejected at least in so far as the relief of injunction as prayed for, is concerned.
36. It goes without saying that no observations made by us in this judgment will come in the way of the parties establishing their respective rights. It is also open to the defendant to bring forth that there was never any promise or understanding arrived at by and between the parties for reinstating the plaintiff back as Bishop, if the earlier suit is withdrawn and hence, all such averments made by the plaintiff now are inaccurate and incorrect. The Court would accordingly modulate the relief to be granted to the respective parties thereafter.
37. For the aforementioned reasons, the original side appeal is allowed. Order passed on 30.6.2014 in Application No.5968 of 2013 in C.S. No.710 of 2013 is set aside. C.S.No.710 of 2013 stands restored and all necessary issues shall be framed for its trial and it shall be proceeded according to law. No costs. Consequently, the connected CMP is closed.
RS 20.4.2017
NOOTY.RAMAMOHANA RAO,J
AND
S.M.SUBRAMANIAM,J
RS
Speaking
Index : Yes
Internet Yes
OSA.No.269 of 2014 &
CMP.No.6140 of 2017
20.4.2017
http://www.judis.nic.in