Bombay High Court
The Church Of North India, Synod Through ... vs Late Rev. Premkumar S/O Moshe Dhotekar ... on 24 August, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION No.4544 OF 2013
The Church of North India, Synod,
through its General Secretary,
CNI Bhavan, 16, Pandit Pant Marg,
New Delhi-110 001. .... ... Petitioner.
..Versus..
1. Late Rev.Premkumar s/o Moshe Dhotekar,
since dead,through his legal representatives:-
(a) Smt.Sanjivani wd/o Premkumar Dhotekar,
aged 57 years, Occupation - Housewife.
Petition
dismissed vide
(b) Shri Nishant s/o Premkumar Dhotekar
order dated
14.7.2015
aged 37 years, Occupation - Service
(c) Shri Sushant s/o Premkumar Dhotekar,
aged 35 years, Occupation service,
(d) Shri Amit s/o Premkumar Dhotekar,
abed 32 years, Occupation service.
Petition (e) Shri Benit s/o Premkumar Dhotekar,
dismissed vide
order dated aged 29 years, occupation service.
14.7.2015
R-1(a) to 1(e) all r/o Quarter
no. 36/3, WCL Colliery,
Tilak Ward, Ballarpur,
Tah. Ballarpur,Dist. Chandrapur
2. The Most Rev. Z.J. Terom,
Deleted vide 63 years, Moderator CNI Synod,
order dated
30..1.2014. CNI Bhavan,16, Pandit Pant Marg,
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New Delhi-110 001.
Petition 3. Rt. Rev. Joel V. Mall,
dismissed vide
order dated 55 years, Bishop, Deputy
14.7.2015
Moderator, CNI, Bishop's House,
CNI Mission Compound, Brown Road,
Ludhiana-141 008(Punjab)
4. Rev. E.D. Pradhan,
60 years, Priest,
Deleted vide
order dated
30..1.2014. General Secretary & Acting
Treasurer, CNI Bhavan,
16, Pandit Pant Marg,
New Delhi - 110 001.
5. Rt. Rev. B.F. Gavit,
62 years, Bishop, St. John's House,
Duxbury Lane, Colaba,Mumbai-400 005.
6. Rt. Rev. P.L. Lyngdoh,
59 years, Bishop,
Bishop's Kuti,Shillong-739 001
Meghalaya.
7. Rt. Rev. A.R. Stephen,
64 years, Bishop, Bishop's House,
25, Mahatma Gandhi Marg,
Allahabad - 211-001.
Petition 8. Rt. Rev. P.S.P. Raju,
dismissed vide
order dated 58 years, Bishop, Bishop's House,
14.7.2015
51, Chowringhee Road, Kolkata 700 071.
9. Rt. Rev. V.M. Malaviya,
Petition 62 years, Bishop, Bhship's House,
dismissed vide
order dated IP Mission Compound, Ellisbridge,
14.7.2015
Ahemedabad-380 006(Gujrat)
10. Rev. A.J.C. Chhatriya,
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64 years, Priest, Diocese of Sambalpur,
Mission Compound, Bolangir-767 001 (Orissa).
11. Rev. P. Moti Lal,
Deleted vide 64 years, Priest, Presbyter in Charge,
order dated
30..1.2014. Free Church, Sansad Marg,
New Delhi - 110 001.
12. Rev. S.K.Paul,
62 years, Priest, 2IX, CNI Social Centre,
Deleted vide
order dated
30..1.2014. Opp. Bus Stand, Jaipur Road,
Ajmer-305 001 (Rajasthan).
Petition 13. Rev. Bijoy K.Nayak,
dismissed vide
52 years, Priest, Mission Compound,
order dated
14.7.2015
G. Udaigiri, Distt. Kandhmal,
Phulbani 762 100 (Orissa)
Petition 14. Rev. Ram Lal,
dismissed vide
order dated 55 years, Priest, CNI Church House,
14.7.2015
Opp. Kalvari Church, Brown Road,
Ludhiana -141 008 (Punjab).
15. Rev. James P. Kandula,
Petition 55 years, Priest, Old H.B.Road,
dismissed vide
order dated P.O. Box No.1,
14.7.2015
Rachi-834 001 (Jkharkhand).
16. Rev.C.N.Athawale,
Petition 62 years, Priest, C/o Bungalow 28/A
dismissed vide
order dated Mission Compound Cantt.
14.7.2015
Aurangabad 431 002.
17. Mrs. N.L. Marandih,
52 years, C/o Bishop's House,
Christ Church Compound,
CNI Diocesan Center, Bhagalpur 812 001.
18. Smt. N. Prasad,
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50 years,s C/o Cathedral House,
Opp. Indian Coffee House,
Sadar, Nagpur 440 001 (M.S.).
19. Mr. Danial B. Das,
Petition 55 years, C/o 26, R.B. Prakakshchand Road,
dismissed vide
order dated Opp. PoliceGround, Amritsar 143 001 (Punjab)
14.7.2015
20. Prof. D.K. Tiwade,
60 years, C/o E.P. School Compound,
Kolhapur 416 003(M.S.)
Deleted vide
21. Mr. I.D. Maganji,
62 years, Ashish Bhawan Church,
order dated
Christian Hospital Compound,
30..1.2014.
Neemuch 458 441 (M.P.).
22. Mr. J.S. Jeremiahh,
Deleted vide 58 years, C/o St. Paul Church Compound,
order dated
19..12.2013 4/116, Church Road,Civil Lines,Agra 282 002.
23. Mr. Bibhudutta Das,
Petition 55 years, C/O Bishop's House,
dismissed vide
order dated Mission Road, Cuttuck 753 001 (Orissa).
14.7.2015
24. Mr. S.R. Gaikwad,
60 years, C/o Tarakpur,
1, Outram Road, Ahmednagar 414 001 (M.S.)
25. Mr. O.T. Aden,
Petition 50 years, Headmaster,
dismissed vide
order dated Turnbull High School,
14.7.2015
B.K. Gongba Road,Darjeeling 734 101.
26. Mr. J.B. Jayaraj,
Petition 55 years, Bishop's House,
dismissed vide
order dated Post Box 19, Port Blair 744 101.
14.7.2015
27. Dr. S.K. Mukhuti,
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Petition 55 years, C/o 86, Middle Road,
dismissed vide
order dated Barrackpore, Kolkata 700 120 (W.B.)
14.7.2015
28. Mr. Ashok Salavi,
55 years, 39, J.P. Nagar,
509 Area, Pune-411 032.
29. Mr. Suresh Jacob,
55 years, C/o 2722, Napier Town,
Jabalpur - 482 001 (M.P. )
Deleted vide 30. Mr. Samson Chhatriya,
order dated
19..12.2013
45 years, C/o Misson Compound,
Bolangir 767 001 (Orissa)
31. Shri Prem Masih,
60 years, Managing Director,
UCNITA. Omega House,
19 August Kranti Marg,
Mumbai-400 007. .... ... Respondents.
.......................................................................................................................................................
Mr.M.P. Khajanchi, Advocate for petitioner.
None for respodnents.
.......................................................................................................................................................
CORAM : PRASANNA B. VARALE,
J.
DATE : 24 th
August, 2016.
JUDGMENT
Heard Mr. Khajanchi, learned counsel for the petitioner. Perusal of the record shows that this Court by order dated 6 th September, 2013 on hearing the learned counsel for the petitioner issued notice for final disposal to the respondents and granted interim order. Though respondent nos. 1(a) .....6/-
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(c) and (d)are duly served none appears for the respondents as well as none for other respondents.
2. The petitioner challenges the order passed by the learned Second Joint Civil Judge, Junior Division, Nagpur dated 14.6.2013. A few facts giving rise to the petition are as follows :
One Mr. Prem Kumar Dhotekar approached the learned Civil Judge, Senior Division, Nagpur by presenting Special Civil Suit No.133 of 20104 (Old number) Regular Civil Suit No. 666/2012 (new number). It was the submission of the plaintiff that he was elected as Bishop in the Church of North India on 29.5.2001 and was appointed as Bishop at Nagpur on 16.6.2001. The perusal of the plaint shows that the submission of plaintiff was due to his objection raised to the decisions of the Executive Committee, the respondents were carrying a grudge against the plaintiff. In a vindictive approach, certain communications were forwarded to the plaintiff. It was the submission of the plaintiff that there was a deep rooted conspiracy hatched against the plaintiff resulting in an action of termination of services of the plaintiff. Thus, the plaintiff approached the learned Civil Judge, Senior Division, Nagpur seeking declaration that the letter dated 29.1.2004 issued by the General Secretary, Church of North India bearing No. CNI:SYN| GS:Discipline:7J/2004, 2170 is illegal, null and void and as a result the .....7/-::: Uploaded on - 26/08/2016 ::: Downloaded on - 27/08/2016 00:25:28 :::
wp4544-13 7 plaintiff continues to be in service of Church of North India as Bishop with rights duties and responsibilities attached to his office and is entitled to all kind of privileges attached to the office which the plaintiff is enjoying from the date he was appointed as Bishop at Nagpur. It was also prayed that the defendants be restrained by an appropriate order, direction, writ etc. and by injunction that they shall not give effect to the said letter dated 29.1.2004.
Other consequential remedies were also prayed including the damages.
During the pendency of the civil suit, the plaintiff expired on 25.11.2012. An application was filed at the instance of Sanjivani w/o Prem Kumar Dhotekar, Nishan s/o Prem Kumar Dhotekar, Sushant Prem Kumar Dhotekar, Amit Prem Kumar Dhotekar and Benit Prem Kumar Dhotekar submitting therein that though the plaintiff expired on 25.11.2012, he was surviving to these legal heirs and on the death of the plaintiff, the suit would not abate and they be permitted to prosecute the proceedings being the legal heirs of Rev. Prem Kumar Dhotekar. It seems that no reply to the application was filed. On 14.6.2013, the learned Second Joint Civil Judge, Junior Division, Nagpur passed an order which reads thus :-
"No say filed. Applicants are legal representatives of plaintiff. Application is allowed. Applicants to carry out amendment forthwith."
3. Mr. Khajanchi, the learned counsel for the petitioner vehemently .....8/-
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Mr. Khajanchi the learned counsel submitted that the plaintiff was elected as the Bishop and subsequently was appointed as Bishop of Nagpur. It was submitted by the plaintiff himself that he was discharging the duties and enjoying the benefits of appointment as a Bishop. Mr. Khajanchi submitted that on death of Mr. Premkumar Dhotekar, his legal heirs could not have succeeded in either enjoying the benefits available to the post of Bishop or the duties to be discharged as a Bishop for Nagpur. Mr. Khajanchi also invited my attention to the Articles of Association. The said documents was also placed on record before the learned Civil Judge, Junior Division, Nagpur along with the written statement filed at the instance of the petitioner. The said document deals with the Memorandum of the Association namely Nagpur Diocesan Trust Association. It also refers to the other office bearers such as Secretary, Treasurer. In so far as position of Bishop is concerned, the document reads thus -
The Bishop of Nagpur and the Archdiocesan of Nagpur shall be ex-officio members on signifying their consent to become members. The rights and privileges of a member shall not be transferable and shall cease (I) on his no longer holding the office of the Bishop of Nagpur or Archdiocesan of Nagpur (2) upon his death, (3) on his resignation of membership and (4) upon his .....9/-
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4. Mr. Khajanchi, learned counsel submitted that the position being occupied by the plaintiff was as of a religious head in the City of Nagpur and whatever duties and facilities available to the plaintiff being a religious head, would certainly not be transferable rights in succession to the legal heirs. Mr. Khajanchi therefore submitted that with this very aspect which goes to the root of the matter and the same which ought to have been considered by the learned 2nd Joint Civil Judge, Junior Division, Nagpur, was not considered by the learned Judge and the application was mechanically allowed. Mr. Khajanchi in support of his submissions placed reliance on the judgment of the Apex Court reported in AIR 1958 S.C. 253 (Syedna Taher Saifuddin Saheb Vs. State of Bombay).
5. On perusal of record it reveals that inspite of the opportunity granted to the respondents, the respondents are not interested in prosecuting the petition as neither the respondents are being represented through any counsel nor any reply is filed on record. This court issued notice for final disposal at the time of issuance of notice itself and as a limited controversy is involved in the petition, the petition is now finally decided.
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6. As the necessary facts are already referred to by this Court, only question is whether the order passed by the learned Civil Judge, Junior Division, Nagpur dated 14.6.2013 is sustainable. The Facts which are not in dispute are namely the plaintiff was initially elected as Bishop and subsequently appointed as Bishop of Nagpur City. He was informed of certain prescribed rights some of them also find place in the Article Association. The plaintiff had approached the Civil Court seeking challenge to his termination.
During the pendency of the suit he expired on 25.11.2012. In the application submitted for permission to prosecute the proceeding being legal heirs, there was absolutely nothing placed on record to submit before the court how the applicants were entitled to continue the proceedings. Mr. Khajanchi was justified in submitting that the Court ought to have specified duties before allowing the application on the merits of the application. Instead, the application was allowed mechanically. It would be useful to refer to the judgment relied on by Mr. Khajanchi. In the matter of Syedna Taher Saifuddin Sahe, Head of the Dawoodi Bohra Community excommunicated two persons of the Community. The said order was challenged before the Sub-ordinate Judge, Barhampur. During the pendency of the proceedings, the plaintiff died on 21.3.1953. Initially his daughter applied for substituting herself in his place on 22.5.1953 but eventually the application was not pressed. The Apex .....11/-
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"Now the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona when he died the suit should abate. It has then referred to certain subsequent events in another judgment of the Apex Court. The Apex Court further observed that the action itself has abated and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist.
7. At the cost of repetition, it can be stated that in the present matter also the plaintiff had approached the court seeking challenge to his termination. The position of post being held by the plaintiff was purely personal in nature. The application filed at the instance of the legal heirs could not have been entertained by the learned Court below as the suit abated on the death of the plaintiff himself. The applicants could not have been permitted to prosecute the proceedings as legal heirs and on behalf of the original plaintiff. Thus, the order passed by the learned Second Joint Civil Judge, Junior Division, Nagpur is clearly untenable and unsustainable. The .....12/-
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JUDGE Hirekhan .....13/-
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