Madras High Court
This Application Has Been Filed Under ... vs Unknown on 30 September, 2020
Author: P.Velmurugan
Bench: P.Velmurugan
A.No.210 of 2022 in C.S(D).No.4331 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
29.03.2022 28.04.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.No.210 of 2022 in C.S(D).No.4331 of 2021
This application has been filed under Order XIV Rule 8 of the Original
Side Rules read with Section 92 of the Code of Civil Procedure (CPC) to grant
leave to institute the above suit against the first defendant.
2. The applicants are the Plaintiffs and the respondents are the
defendants in the Suit.
3. The facts of the case are as follows:-
The 1st applicant is a communicant member of the Church of South
India, (hereinafter referred to as the “CSI”) the 2nd applicant is the Member of
St Pauls Church. The first respondent Church of South India (CSI) is an
unincorporated body consisting of 24 dioceses spread over the five southern
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States of India. The 2nd respondent is the Church of South India Trust
Association, represented by its Honorary Secretary. The 3rd respondent is the
Moderator of the CSI.
4. The 3rd respondent, who is the Chairman of the Dr.Somerverl
Memorial CSI Medical College, had entered into a conspiracy with one
Mr.Bennet Abraham and others to cheat innocent students by promising them
to give MBBS seats in the college, which comes under the control of the South
Kerala Diocese and at the time, the 3rd respondent is the Bishop of the South
Kerala Diocese, due to which, the third respondent and his coterie collected
crores of rupees from the parents of the students in the State of Tamil Nadu
promising them to give seats in the college. The college officials and the 3 rd
respondent have admitted the collection of amounts from the parents of the
students. Subsequently the matter was placed before the Admission
Supervisory Committee in its meeting held on 26.07.2019. The Committee
decided that the matter may be placed before the Government to take
appropriate steps against the college to refund the amount collected from the
complainants and also to initiate criminal proceedings against the college
officials and office bearers in accordance with law. Due to that 10 FIRs have
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been registered against the 3rd respondent and others. In the mean time,
election was to be conducted to the post of Moderator on 11.10.2020 at CSI
General Synod. In these circumstances, suppressing the criminal case against
him, the 3rd respondent was elected as the Moderator of the CSI Synod.
Subsequently, the 3rd respondent filed application for anticipatory bail before
the Kerala High Court. The Kerala High Court by order dated 30.09.2020,
ordered the investigation Officer to proceed with the investigation in
accordance with law. In view of the criminal acts, the 3rd respondent has
absolutely no legal basis to function as the Moderator of the CSI and the filing
of criminal cases were suppressed from the purview of the electoral committee
as the 3rd respondent was elected during 2020. Therefore, the applicants have
filed the suit a) to frame a scheme under Section 92(g) and (h) CPC setting out
the conditions for appointment and terms of office and prescribing
disqualification for the members of the Synod of the first respondent b) to
remove the 3rd respondent from the office of CSI as Moderator c) consequently
to remove the 3rd respondent as the Chairman of the CSITA, the second
respondent d) to direct the first respondent to conduct fresh elections to the
office of the Moderator of the Synod of the first respondent and to grant such
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other reliefs and the hence, the applicants have filed the application to grant
leave to institute the Suit against the respondents/defendants.
5. The learned counsel appearing for the applicants would submit that
the 3rd respondent is admittedly facing criminal prosecution for cheating,
criminal breach of trust and offences under the Prevention of Corruption Act.
Further the learned counsel would submit that the misuse and
misappropriation of funds of properties of the Church or its institutions is an
offence under Chapter XI of the Constitution. The learned counsel further
would submit that the 3rd respondent, Moderator has rendered himself unfit to
continue on account of his conduct in duping innocent students and parents in
Tamil Nadu by promising them to give seats in a college headed by him as
Chairman. The learned counsel further would submit that there is a lacuna in
the Constitution, as it does not contain any disclosure requirements for
persons who are contesting as Moderator and it does not prescribe any
disqualification for Moderators who have got themselves elected by
suppressing facts and by rendering themselves unfit to be elected and there is
no filter to ensure that unscrupulous elements are elected to be high office of
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Moderator. Therefore, the learned counsel submitted that this Court in
exercise of the powers under Section 92 CPC to intervene to set right the
anomaly and to ensure that only those persons who maintain the highest
ethical and moral standards are elected to the position of the Moderator.
Further, the learned counsel would submit that the applicants are “persons
interested” within the meaning of Section 92 CPC and there is absolutely no
private interest. The learned counsel would submit that the applicants,
members of the Church, have every right to question the conduct of the 3rd
respondent, who has no right to lead the church. The learned counsel
therefore submitted that the application filed under Section 92 of CPC is liable
to be allowed.
6. The learned counsel appearing for the respondents by filing the
counter affidavit denied all the allegations made by the applicants. Further the
learned counsel submitted that the first respondent Church is not a public
Trust, which is an unincorporated body and the second respondent is only a
public Trust and therefore, prayer sought for to frame a scheme under Section
92 CPC is not tenable. Further, it is submitted that the 3rd respondent was
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elected as Moderator on 11.01.2020 and he is also the Bishop of the South
Kerala Diocese and Chairman of the Dr.Somervel Memorial CSI Medical
College, as an ex officio capacity. The learned counsel further submitted that
when the 3rd respondent as Bishop came to the know that one of the institution
namely the Dr.Somervel Memorial CSI Medical College have collected crores
of rupees from innocent students by promising them to give MBBS seats in
the college, he directed the college authorities to repay the same. Further, it is
submitted that the reports of the parents against the college authorities for
failure to return the amounts collected, were registered as various FIRs in the
State of Kerala, but however, the police included the 3 rd respondent as first
accused solely on the basis that he is the Chairman of the institution.
Therefore, the learned counsel submitted that there is no cause of action for
the applicants to prefer the proposed suit under Section 92 CPC and to frame a
scheme setting out the conditions for appointment and terms of office and
prescribing disqualification for the members of the Synod of the first
respondent and hence Section 92 CPC is not applicable to the first respondent
Church. Therefore, the learned counsel submitted that the respondents have a
prima facie case, the balance of convenience is with them and hence, the
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application is liable to be dismissed.
7. Heard the learned counsel appearing for the parties and perused the
materials on record.
8. Section 92 Public Charities reads thus:-
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
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property in his possession to the person entitled to the
possession of such property;
d) directing accounts and inquiries;
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.
9. In the case on hand, two essential conditions are necessary in order
that the suit should fall under Section 92 of the Civil Procedure Code viz.,
either, there must be an alleged breach of an express or constructive trust
created for public purposes of a charitable or religious nature, or the direction
of the Court is deemed necessary for the administration of the trust.
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10. It is to be pointed out that to invoke the jurisdiction of this Court
under any of the clauses in sub-Section (1) of Section 92 CPC, the following
conditions are to be satisfied:-
i) either there is an allegation of breach of any express or constructive
trust created for public purposes of a charitable or religious nature of a
charitable or religious nature or alternatively the direction of this Court
is deemed necessary for the administration of the Trust;
(ii) persons moving the Court must have an interest in the Trust and
(iii) such persons must have obtained the leave of the Court.
11. The object of Section 92 of the Code of Civil Procedure is to protect
the public trusts. The real test for applicability of Section 92 of the CPC is to
see whether the suit is fundamentally on behalf of the public for vindication of
a public right and not for vindication of an individual or personal right.
12. Under the Constitution of the Church of South India, the Synod is
the highest representative body of the first respondent church. The officers of
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the Synod are the Moderator, Deputy Moderator, General Secretary and the
Treasurer. The Moderator and the Deputy Moderator of the Synod shall be
elected by a ballot of the Synod from among the diocesan Bishops of the
Church.
13. It is no doubt that the first respondent Church of South India (CSI)
is an unincorporated body and the 3rd respondent was elected as Moderator of
the CSI on 11.10.2020. The applicants are the members of CSI. The first
respondent is not a registered Trust. The existence of public trust is essential,
whether express or constructive. There is an allegation against the 3rd
respondent that he has misused his high position as Chairman of the college,
as he has collected funds from the innocent students of the parents and hence,
10 FIRs have been registered and he has also moved the Kerala High Court for
obtaining anticipatory bail. The Kerala High Court while granting the
anticipatory bail, directed to repay the amount collected from the innocent
students of the parents and further directed the investigation officer to proceed
with the investigation in accordance with law. Before the Investigating
Officer, the 3rd respondent has admitted his guilt in his statement and stated
that the parents have received the amount back.
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14. It is needless to say that without going into the merits of the matter,
I am of the considered view that when such an amount is collected in
connection with the admission to colleges, there should be backing of law.
Without backing of law, if any amount is collected by a public servant, that
will attract the offences under the prevention of Corruption Act and the other
provisions of the Indian Penal Code. Therefore, the questions which arise for
consideration are whether the allegation levelled against the 3rd respondent is
true or not and whether the 3rd respondent is eligible to continue to the post as
Moderator or not? and that can be decided only in the Suit, after full fledged
trial and hence, the application is liable to be allowed.
15. A reading of the averments in the plaint would reveal that the
applicants are the members of the CSI and they are “persons interested” under
Section 92 CPC and this Court does not find that the applicants have filed the
Suit for any personal vendetta and it is filed only for public purpose.
16. The first respondent is not a registered Trust and it is only an
unincorporated body and therefore, the contention raised by the learned
counsel for the respondent that it is not a public trust and the Suit is not
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maintainable under Section 92 does not merit acceptance and hence, the
application is liable to be allowed.
17. It is well settled proposition of law that while granting leave, the
Court has to see the averments in the application and the object of the Trust
and also has to see whether the Trust is a public charitable Trust; whether the
applicants are interested persons and whether the applicants made out the
object of Section 92 of CPC and not the defence taken by the defendants.
18. A reading of the plaint reveals that prima facie case is made out that
the applicants are entitled to get leave for filing the suit. Therefore the
application is allowed.
18. Registry is directed to take the suit on file if it is otherwise in order.
29.04.2022
pbn
Index : Yes/No
Internet:Yes/No
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P.VELMURUGAN,J.
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