Rev.M.M.Philip v. Samaluru Raja & Ors.

Order

Heard Sri B.Vijaysen Reddy, learned counsel for the petitioner, and Sri Vedula Venkataramana, learned senior counsel representing

Sri Nagaraju Naguru, learned counsel on caveat for the contesting first respondent. The petitioner is defendant 3 in the suit, O.S.No.76 of 2011, on the file of the learned Principal Senior Civil Judge, Kadapa, filed by the first respondent seeking a permanent injunction restraining defendants 5 to 8, being the members of the administration committee, from functioning as such in the Church of South India, Rayalaseema Diocese (CSIRD). It is the case of the first respondent/plaintiff, a member of the CSIRD, that the 29th Diocese Council elections for the period 2009 to 2011 were not conducted due to pendency of Court cases and the Synod, the highest authority of all the Dioceses in South India, appointed a working committee for the smooth administration of the Diocese. The committee was to conduct and complete the election process within six months. However, it failed to do so and the first respondent/plaintiff alleged that the committee was not performing its functions and was working adverse to the interests of the institution. He therefore prayed for a permanent injunction restraining defendants 5 to 8, the members of the committee, from functioning. He also filed an application in I.A.No.657 of 2011 in O.S.No.76 of 2011 for a temporary injunction to restrain defendants 5 to 8 from functioning. The trial Court granted an ex parte interim injunction as prayed for on 18.03.2011 and ordered urgent notice to the respondents in the I.A. While so, respondent/plaintiff moved another interlocutory application in the suit under Section 151 of the Code of Civil Procedure (CPC) in I.A.No.823 of 2011, stating that pursuant to the interim injunction granted on 18.03.2011 in I.A.No.657 of 2011 in O.S.No.657 of 2011 there was no one to run the administration of the CSIRD causing hardship as the affairs of the said institution were practically stalled and prayed for a direction to the office bearers of the 28th Diocese Council to carry out the administration and governance of the CSIRD. The names of the office bearers of the 28th Diocese Council were separately mentioned in the schedule to the petition. Pertinent to note, the said persons were not parties to the suit or the I.A. The trial Court, by order dated 16.04.2011, permitted the office bearers of the 28th Diocese Council described in the schedule to carry on the administration and governance of the CSIRD imposing various conditions. Aggrieved thereby, defendant 3 in the suit, the General Secretary of the Church of South India, Chennai, filed this revision. Sri B.Vijaysen Reddy, learned counsel, contended that the order of the trial Court was unsustainable in law and on facts. The learned counsel submitted that the trial Court, having already passed a n ex parte interim injunction and having ordered notice to the respondents in the said I.A., ought not to have entertained another application ex parte and passed orders. He further pointed out that the prayer in the said I.A. went beyond the main relief sought in the suit and further, the direction sought was to persons who were not even parties to the proceedings. Sri Vedula Venkataramana, learned senior counsel, on the other hand, contended that the Civil Revision Petition was not maintainable. The learned senior counsel would submit that though the I.A. was filed invoking the inherent powers of the Court under Section 151 CPC it was essentially in the nature of a mandatory injunction and therefore the provisions of Order XXXIX Rules 1 and 2 CPC would apply. The learned senior counsel therefore argued that an appeal would lie against the said order and that it was not open to the petitioner to invoke the jurisdiction of this Court under Article 227 of the Constitution in the first instance. The learned senior counsel submitted that it would be a bad precedent to encourage the practice of invoking this Court’s jurisdiction when an alternative efficacious remedy of appeal is available against the order. Refuting these contentions, Sri B.Vijaysen Reddy, learned counsel, submitted in reply that when the first respondent/plaintiff himself invoked the inherent powers of the Court under Section 151 CPC, it was clear that what was sought was not an injunction falling within the ambit of Order XXXIX Rules 1 and 2 CPC and that it was not for this Court to read more into the petition and prayer. The learned counsel would further submit that even if the impugned order was appealable, a revision under Article 227 of the Constitution would still be maintainable. As per the plaint pleadings, the working committee, comprising defendants 5 to 8 in the suit, was constituted for the CSIRD by the Synod, the highest authority of the Dioceses in South India, in February, 2010. The grievance appears to be that this committee which was required to hold elections within six months failed to do so and it is the case of the first respondent/plaintiff that the said committee was indulging in acts which were adverse to the interests of the institution. The injunction sought and granted was to the effect that defendants 5 to 8 in the suit should not administer the CSIRD. This ex parte temporary injunction was granted on 18.03.2011 putting the respondents in the said I.A. (the defendants in the suit) on notice. The contention of Sri B.Vijaysen Reddy, learned counsel, that it was not open to the trial Court to pass ex parte orders once again in the subsequent I.A., having ordered notice in the earlier I.A. while granting an ex parte interim injunction, cannot be accepted. There is no such fetter on the powers of the trial Court and the facts and circumstances of a particular case may constrain the trial Court to adopt such course of action. At the same time, the contention of Sri Vedula Venkataramana, learned senior counsel, that the present revision under Article 227 of the Constitution is not maintainable as the petitioner has an alternate remedy available cannot be countenanced. A.VENKATASUBBAIAH NAIDU v. S.CHELLAPPAN[1], relied upon by the learned senior counsel, itself indicates that no hurdles can be put against the exercise of constitutional powers by this Court. The facts and circumstances of the individual case would determine as to whether this Court would exercise its discretion in entertaining such a revision or would relegate the party to an alternate remedy. In so far as the merits of the case are concerned, it may be noticed that the Synod, the highest authority of all the Dioceses in South India, was not made a party to the suit. The reason for moving the second application in I.A.No.823 of 2011 in O.S.No.76 of 2011 was that the administration of the institution was stalled owing to the interim injunction granted by the trial Court on 18.03.2011 in the I.A. filed earlier. Pertinent to note, this injunction was granted at the instance of the first respondent/ plaintiff himself and therefore, he could not make out a grievance with regard to the stalling of the administration. The Synod, which is said to be the highest authority, would be the body most concerned with the administration of the institution and would therefore be expected to move in the matter. However, surprisingly, it is the first respondent/plaintiff who himself moved the application seeking a direction to the office bearers of the 28th Diocese Council, who are not even parties to the proceedings, to carry on the administration and governance of the CSIRD. This application was moved invoking the inherent powers of the Court under Section 151 CPC. Sri Vedula Venkataramana, learned senior counsel, would however have it that this petition was for a mandatory injunction and therefore the provisions of Order XXXIX Rules 1 and 2 CPC would apply. An injunction normally would be granted only against parties to the proceedings. Admittedly, the members of the 28th Diocese Council were not before the Court. Therefore, there could have been no mandatory injunction against them. Further, as rightly pointed out by Sri B.Vijaysen Reddy, learned counsel, this prayer with regard to a direction to the 28th Diocese Council to take over the administration of the CISRD goes beyond the relief sought in the suit, a permanent restrictive injunction against specific members of the working committee. The trial Court also appears to have been conscious of this aspect as is clear from the docket order, wherein the trial Court struck out the word ‘directed’ and substituted it with the word ‘permitted’ indicating that it was well aware that it could not issue a direction to the office bearers of the 28th Diocese Council who were not even before it. Viewed thus, in the facts and circumstances obtaining, the order of the trial Court permitting the office bearers of the 28th Diocese Council to carry on the administration and governance of the CSIRD cannot be countenanced. Sri Vedula Venkataramana, learned senior counsel, submitted that entertaining a revision under Article 227 of the Constitution against an ex parte order would set a bad precedent. However, as pointed out by the Supreme Court in SURYA DEV RAI v. RAM CHANDER RAI[2], this Court would be well justified in exercising jurisdiction under Article 227 of the Constitution once it is established that the subordinate Court was exercising jurisdiction in a manner not permitted by law resulting in a travesty of justice. No doubt, the ex parte interim injunction granted by the trial Court on 18.03.2011 had an adverse effect upon the day to day functioning of the CSIRD but as pointed out supra, it was for the Synod, the highest authority of all the Dioceses in South India, to take appropriate steps in the matter. Having obtained an interim injunction against the functioning of the existing working committee, the first respondent/plaintiff could not have made the same a ground for approaching the trial Court once again to entrust the administration of the CSIRD to a body of his choice. Such a prayer went beyond the main relief sought by him in the suit. The Civil Revision Petition is accordingly allowed setting aside the order dated 16.04.2011 passed by the learned Senior Civil Judge, Kadapa, in I.A.No.823 of 2011 in O.S.No.76 of 2011. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. _______ JUNE, 2011. VGSR