Thoothukudi Nazareth Diocese v. The Church of South India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-8-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA Nos.357, 358 and 375 of 2008andMP Nos.1, 1 and 1 of 2008 in OSA Nos.357, 358 and 375 of 20081.Thoothukudi Nazareth Diocese Rep. By its Treasurer Caldwell Higher SecondarySchool Campus Beach Road, Thoothukudi 628 001.2.Rt. Rev.J.A.D.Jebachandran Bishop, Thoothukudi Nazareth Diocese No.111/32 T, State Bank Colony Thoothukudi 628 002... Appellants in OSA 357 & 358 of 2008 and Respondents in OSA 375/2008vs1.The Church of South India Rep. By its General Secretary CSI Centre, No.5, Whites Road Royapettah,Chennai 600 014.2.The Moderator The Church of South India The Synod Secretariat CSI Centre No.5, Whites Road Royapettah, Madras 600 014... Respondents in OSA 357 & 358 of 2008 and Appellants in OSA 375/2008Original Side Appeals preferred under Order XXXVI Rule 9 of theOriginal Side Rules read with Clause 15 of Letters Patent against theorder of this Court made in O.A.No.530 and 531 of 2008 in C.S.No.475of 2008.dated.23.9.2008.For Appellants inOSA 357 & 358/2008& Respondents inOSA 375/2008: Mr.S.Subbiah https://hcservices.ecourts.gov.in/hcservices/ For Respondents inOSA 357 & 358/2008& Appellants inOSA 375/2008: Mr.V.Prakash, Senior Counsel for Mr.Adrian D.RozarioCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these three appeals in OSA Nos.357,358 and 375 of 2008. 2.These appeals have arisen from a common order of the learnedSingle Judge of this Court made in O.A.Nos.530 and 531 of 2008 inC.S.No.475/2008. OSA 375/2008 is brought forth by the defendants,while OSA Nos.357 and 358/2008 are by the plaintiffs in the suit.3.The plaintiffs filed the said two Original Applications for adinterim injunctions one restraining the defendants from in any mannerinterfering with the internal administration and management of theaffairs of the first plaintiff Diocese and the other restraining themfrom in any way preventing the plaintiffs from exercising their rightto take disciplinary action in any form, as contemplated under theConstitution of the Thoothukudi Nazareth Diocese with the followingaverments:The plaintiffs came to know that some of the Office Bearers ofthe first plaintiff Diocese misappropriated and mishandled the fundsof the first plaintiff diocese, and criminal complaints were filed bysome of the office bearers, which are pending investigation. As perthe report dated 13.10.2007, the High Power Commission consisting often members of the Diocese, unanimously found that some of themembers have embezzled the funds of the first plaintiff causingmonetary loss to it. Hence, necessary proceedings were initiatedagainst them in accordance with law. While the matter stood thus,the defendants in order to help those erring members, called upon theplaintiffs to submit accounts to them for scrutiny and alsothreatened them not to take any action as against the erring members.4.The defendants contested the applications by filing a commoncounter stating that the suit filed under Order 1 Rule 8 of C.P.C.,itself is not at all maintainable; that both the first plaintiff andthe first defendant are unregistered bodies; that under thecircumstances, no interim order could be made; that the Bishop of theDiocese shall have a general oversight of the financialadministration of the Diocese, but shall not exercise control overthe finance; that the defendants received so many complaints asregards the administration of the first plaintiff Diocese; that thefact that so many criminal complaints are pending would itself go toshow that there is no peace in the first plaintiff Diocese; that insuch circumstances, the defendants have no other option than torequire the Bishop, according to the Constitution of Church of SouthIndia, to produce the records; that the Bishop and the Treasurer ofthe first plaintiff have acted as Chairman and Member of the High https://hcservices.ecourts.gov.in/hcservices/ Power Commission respectively; that the accounts for the period 2006-2007 were not approved by the Diocese even though it was audited;that without approval, the plaintiffs have submitted accounts to thefirst defendant with an ulterior motive knowing the fact that theaudited statements of accounts relating to all the Dioceses comingunder the Church of South India will have to be consolidated andsubmitted to the Finance Department; that the letter from thedefendants would simply require the plaintiffs to submit accounts andnot to take hasty steps, and hence the applications were to bedismissed.5.The learned Single Judge on enquiry, allowed both theapplications apart from observing that the second defendant wasempowered to direct the first plaintiff to submit books of accountsfor the financial years 2005-2006 and 2006-2007 for scrutiny. Hencethese appeals by the respective parties.6.Advancing arguments on behalf of the appellants in OSA375/2008, the learned Senior Counsel Mr.V.Prakash would submit thatthe first plaintiff institution and the first defendant institutionwere unregistered bodies, and hence leave should have been obtainedto sue or to be sued in representative capacity; that the suit itselfwas not at all maintainable since no leave was obtained; that underthe circumstances, no interim order could be granted in a case wherethe suit is not properly instituted; that the Court was dealing onlywith the body which is a legal entity in the eye of law; that theCourt cannot deal with an unregistered body having no legalexistence; that Tuticorin Nazareth Diocese, the first plaintiff, hadno locus standi to sue the Church of South India (CSI) which was alsoan unregistered body; that the learned Single Judge has notconsidered that it was the right of the CSI to control the religiousand financial affairs of the Diocese which are purely an internalmatter of CSI, and hence the defendants had every right to controland administer the first plaintiff Diocese; but, it has beenerroneously held that the defendants cannot interfere with theinternal administration of the first plaintiff; that in fact, it wasonly an internal administration of the CSI; that the first plaintiffDiocese was only a limb of CSI; that the right of administrationwhich was conferred under the Constitution cannot be taken away bythe filing of the suit before the Court; that the Constitution of CSIwas an agreement between its members; that it cannot be nullified byway of filing a suit; that no doubt, it is the right of the Dioceseto take action against the members if they have committedmisappropriation or mismanagement, as per the constitution of thefirst plaintiff Diocese; that the defendants had no grievance overthe Diocese to take action against the erring members as per theprinciples of Jesus Christ; and that at the same time, the appellantshad every right to call for relevant and authenticated documents andalso question the constituent unit subordinate to it. 7.Added further the learned Senior Counsel that it is theright of the CSI to set right the illegal things done by the Diocesefor committing a breach; that they had no right to choose thejurisdiction of the civil Court and get shelter under the Courtproceedings; that it is the duty of the Bishop who is the shepherd ofthe diocese and who has to follow the Constitution, to approach the https://hcservices.ecourts.gov.in/hcservices/ problem in a biblical way and not by way of filing criminalcomplaints; that the appellants have not given any Power of Attorneyto the respondents to deal with the accounts of CSI; that theplaintiffs cannot act on behalf of CSI and deal with the money; thatthe second plaintiff was only the Bishop of CSI who has been elected,selected and consecrated as per the Constitution of CSI; that all thematters relating to the property administration, purchase of lands,selling of lands, investments and other financial administration,shall be done only through the Power of Attorney of CSI Association;that the Synod is the Supreme legislative body of CSI and the finalauthority in all the matters pertaining to the Church; that he haspower to make rules, pass resolutions and take executive action asmay be necessary from time to time for general management and goodgovernance of the Church and of the property and the affairs thereof;that the Synod shall deal with the matters of common interest to thewhole CSI; that the Synod Executive Committee has power to call forthe particulars relating to the administration and financialmanagement of the diocese from the Bishop whenever required; that iffor any reason the Bishop of the diocese is unable to furnish theparticulars, the same may be called for from the Officers of thediocese, and such information should be furnished; that the Synod hadgot power to determine the number and boundaries of the dioceses andform new dioceses in the Church; and that it has also power todetermine whether anything in the Constitution of any DiocesanCouncil is at variance with anything contained in the Constitution ofCSI and if it finds such variance, to rule that such part of suchDiocesan Constitution was of no force. 8.It is further contended by the learned Senior Counsel that theDiocese should furnish through its Chairman to the Moderator and tothe Secretary of the Synod accurate records of all its resolutionsand other proceedings; that the CSI Trust Association has its ownConstitution to deal with the properties of CSI Trust Association;that the learned Single Judge has failed to note that the Bishop ofthe Diocese shall have a general oversight of the financialadministration of the Diocese, but should not exercise any directcontrol over the finances; that every Bishop of the diocese shall beex-officio member of the CSI Synod; that the learned Single Judge hadfailed to note that that being the fact, the appellants have got somany complaints against the administration of the first plaintiffdiocese; that under the circumstances, the Moderator of Synod inconsultation with the office bearers of the Synod appointed aCommission to find out the reasons for the disturbance in theadministration of diocese; that the Commission has been formed onlyto know the seriousness of the allegations mentioned in thecomplaints received by him; that in the said suit, the secondplaintiff has filed an application for impleading himself as a partyto the proceedings and filed a counter stating that he has noobjection for granting the relief as prayed for in the injunctionapplications; that moreover, in his counter, he has pleaded that theBishop is an aggrieved person by the order of appointment ofCommission, and he proposed to file an application to transposehimself as a plaintiff in the suit; that the interim applicationfiled by Dr.Solomon in O.S.No.6691 of 2007 has been disposed of bythe Court on 5.12.2007 with an observation that temporary injunctionis granted to the respondents 1 to 3 namely CSI represented by its https://hcservices.ecourts.gov.in/hcservices/ General Secretary, The Moderator-CSI and The Deputy Moderator-CSI,from interfering with the functions of the Bishop in discharging hisduties as a Head of Nazareth Diocese except in accordance with theConstitution of CSI; and that in IA 17497/2007 in OS No.6691/2007 theCourt stayed further proceedings of the Commission appointed by theModerator till the disposal of the suit with a direction to proceedindependently according to Rule 25 Chapter XI of the Church of SouthIndia. 9.Added further the learned Senior Counsel that the learnedSingle Judge has not noted that the Bishop has constituted a HighPower Commission and the Bishop himself has become Chairman of thesaid Commission; that the Auditor, Bishop and Treasurer become theMembers, and they submitted a report on 13.10.2007 stating that theHigh Power Commission found that Rs.3 crores has beenmisappropriated; that on 24.2.2007, before publishing the High PowerCommission's report, being the Chairman of the High Power Commission,the Bishop sent a letter to the Superintendent of Police stating thatthere was misappropriation of Rs.40 lakhs; that on 7.3.2007, theBishop gave a letter of clarification that Rs.40 lakhs is in thefixed deposit of State Bank of India; that on 13.10.2007, as theChairman of the High Power Commission, the Bishop stated that Rs.40lakhs has been misappropriated; and that the audit report dated25.3.2008, also confirms the same.10.The learned Senior Counsel would add that the appellants arenot in a position to know the things happening inside the diocese;that during that period, the Bishop was functioning as Secretary ofthe diocese; that there are so many complaints which are placedbefore the appellants; that by filing criminal complaints, theplaintiffs have created confusion in the accounts submitted by theapex body namely CSI, before the Government of India forverification; that the entire attitude would create complication inthe administration of the CSI; that the Bishop himself as an ex-officio officer has instituted the suit against his own office withan ulterior motive to cover his misdeeds; and that the learned SingleJudge has not adverted to any one of these factual or legalpositions, but has granted the injunction which has got to bevacated.11.Advancing arguments on behalf of the appellants in OSA 357and 358/2008, the learned Counsel Mr.S.Subbiah would submit that thelearned Single Judge has correctly held by upholding the rights ofthe appellants/plaintiffs available to them under the Constitution ofCSI and bye laws of Tuticorin Nazareth Diocese relating to theirindependence in handling the matter and taking up disciplinaryproceedings against their members, but has taken an erroneous view bysustaining the plea of the defendants that the second defendant wasempowered to direct the first plaintiff to submit the books ofaccounts for the financial years 2005-2006 and 2006-2007 forscrutiny; that the learned Single Judge should have noticed that evenassuming that the second defendant was empowered to do so, he has tosatisfy the mandatory provisions contained under Rule 15 of ChapterIX of the Constitution of CSI; that it is also pertinent to note thatthe consideration under Sub Rule (b) of Rule 15 of the said CSIConstitution was essentially a relevant factor even to call for any https://hcservices.ecourts.gov.in/hcservices/ particulars, and when there was no such decision taken by the SynodExecutive/Working Committee/Officers of the Synod, as they wereconvinced of certain matters as envisaged therein, there should be areport alone on such consideration as referred thereto; that thelearned Single Judge has erroneously construed the provisioncontained under Sub Rule (a) of Rule 15 of the said CSI Constitutionas if they have got powers even to call for the books of accounts ofthe first plaintiff; and that the learned Single Judge has overlookedthe very provisions contained in Sub Rule (a) of Rule 15 of the CSIConstitution to the effect that any contingency would arise only whenthe second plaintiff as Bishop of the diocese was unable to furnishparticulars. 12.Added further the learned Counsel that the learned SingleJudge has not noticed that it is not the case of the respondents thatneither of the appellants had failed to furnish the particulars asrequired by any of the defendants, and as such when the relevantfeature or condition not having been satisfied by the respondents,there was no question of even calling for any particulars or todirect the first plaintiff to produce the account books for anyfinancial year; that when the plaintiffs have already furnished theaccounts as available in the books of accounts, there was no questionof calling for any further particulars thereon; that the defendantshave not chosen to any remark on the accounts as available in theoffice of the plaintiffs to suggest that there was any leave for therestoration of sound administration and financial management; that inthe absence of any report made to the Working Committee and such areport if any having not been communicated to the appellants, theinvocation of the powers under any of the provisions contained inRule 15 of the CSI Constitution was totally illegal and arbitrary,and the same remained unnoticed by the learned Single Judge; that thepower to call for records could not be taken as one to include evento call for the books of accounts to the office of the respondents;that indirectly it would rather amount to upholding the contentionsof the respondents; that such a decision runs contrary to the wellconsidered findings of the learned Single Judge, and thus thefindings are inconsistent to each other; that the learned SingleJudge has rightly held that the plaintiffs have the authority to takeaction independently without interference by therespondents/defendants against the erring officials in the interestof their internal administration; that having found so, the learnedSingle Judge should not have held that the defendants can call forthe records; that the plaintiffs while filing the suit, rested itscause of action on the letter dated 25.3.2008, from the CSI and thusmade out a prima facie case for grant of injunction; that the learnedSingle Judge was also satisfied and has granted the interiminjunction; that under the circumstances, there was no need to vacatethe injunction; that the mere glance of the letter dated 25.3.2008,would clearly suggest that the defendants were only aiming to helpthose erring officials and to favour them as against the interest ofthe plaintiffs; that the learned Single Judge should not have givenany room to the respondents to over come the order of temporaryinjunction and other related findings to pass such an order even bycalling for the books of accounts to their office, and under thecircumstances, that part of the order has got to be set aside, andthe interim injunction granted be sustained. https://hcservices.ecourts.gov.in/hcservices/

13.The Court considered the submissions made by either side andlooked into the materials available.14.As could be seen above, Tuticorin Nazareth Diocese and alsothe Bishop, Tuticorin Nazareth Diocese, as plaintiffs have filed thesuit against the CSI and its Moderator as defendants for adeclaration that the letter dated 25.3.2008, by the defendants wasillegal and without jurisdiction and also for a permanent injunctionrestraining the defendants from interfering with the internaladministration, management and affairs of the first plaintiff dioceseand also for other reliefs. At the time of filing the suit, twoapplications were filed for the interim reliefs. On enteringappearance, the defendants filed their counter. The learned SingleJudge while granting the relief of interim injunction, also directedthe plaintiffs to submit books of accounts for the financial years2005-2006 and 2006-2007 for scrutiny. Aggrieved over the grant ofinjunction, the defendants have brought forth OSA No.375 of 2008.Aggrieved over the other part of the direction for submission ofaccounts, the plaintiffs have brought forth the other two appeals inOSA 357 and 358/2008. 15.Admittedly, the first defendant is the Church of South India(CSI) and the second defendant is its Moderator. The first plaintiffis Tuticorin Nazareth Diocese. It is not in controversy that thethey are governed by the Constitution of the CSI 2003. It would bemore apt and appropriate to reproduce some of the provisions found inthe said Constitution. Rule 1 of Chapter IX reads thus:"1.The Synod is the highest representative body of theChurch of South India, its supreme governing andlegislative body and the visible symbol of its unity."16.Speaking of the powers of Synod, Rules 13, 14, 15, 15(a), 15(b) and 15(c) of Chapter IX of the Constitution read thus:"13.The Synod is the supreme governing and legislative bodyof the Church of South India, and the final authority inall matters pertaining to the Church.14.It has power to make rules and pass resolutions and takeexecutive action as may be necessary from time to time forthe general management and good government of the Churchand of the property and affairs thereof. In as much as the Church of South India Trust Associationhas been formed for the purpose of acting as Trustee orAgent of all the properties, movable and immovable, of theChurch of South India, the Church of South India Synodshall have the power to elect the members of the Church ofSouth India Trust Association. The Moderator, the DeputyModerator, the General Secretary and the Treasurer shall beex-oficio members of the Church of South India TrustAssociation.15.The Synod shall deal with matters of common interest tothe whole Church of South India, and with those whichaffect the relation of the dioceses to one another and to https://hcservices.ecourts.gov.in/hcservices/ the rest of the universal Church, and shall leave theDiocesan Councils to deal with the internal affairs of eachdiocese.(a) The Synod Executive Committee/WorkingCommittee/Officers shall have the power to call forparticulars relating to the administration and financialmanagement of a diocese from the Bishop whenever required.If for any reason the Bishop of the Diocese is unable tofurnish the particulars, the same may be called for fromthe Officers of the Diocese and such information shall befurnished.(b) If, at any time, the Synod Executive/the WorkingCommittee/the Officers of the Synod are convinced that thesituation of administration and financial management in aparticular diocese needs the assistance of the Synod, theWorking Committee shall, without delay, take appropriateaction in consultation with the Executive Committee of theDiocese concerned, for restoring sound administration andfinancial management. The report of any such action shallbe submitted to the Synod Executive committee for review,within a period of six months, if necessary by a specialmeeting.(c) When the Synod or the Synod Executive is satisfied thata Diocesan Council is unable or unwilling to perform itsfunctions as laid down in this Constitution or in theConstitution of the Diocese, it may, on the recommendationof the Bishop of the Diocese or the Diocesan Executive orthe Moderator, take such steps as it considers necessaryfor the good administration of the internal affairs of theDiocese; provided that action under this clause shallrequire the consent of three-fourths of the members presentand voting excluding the elected representatives of theDiocese concerned and shall remain in force only until thenext meeting of the Synod."17.From the very reading of the above provisions of theConstitution of the CSI, it would be quite clear that the Synod isthe supreme governing body and final authority in the matterspertaining to the Church. It is empowered to take executive actionas may be necessary from time to time for the general management andgood government of the Church and of the property and affairsthereof. It is also empowered under Rule 15(a) of Chapter IX to callfor the particulars relating to the administration and financialmanagement of a diocese from the Bishop whenever required, and if, atany time, it is convinced that the situation of the administrationand financial management in a particular diocese needs assistance ofthe Synod, the Working Committee shall without delay take appropriateaction in consultation with the Executive Committee. 18.In the case on hand, according to the plaintiffs, the causeof action for the suit arose from a letter dated 25.3.2008, addressedby the CSI to the Bishop of Tuticorin Nazareth Diocese. A perusal ofthe letter would clearly indicate that the Synod has received several https://hcservices.ecourts.gov.in/hcservices/ complaints from the members of Tuticorin Nazareth Diocese with regardto the mismanagement of finance and maladministration; that it wasbrought to the notice of the CSI that lawyer's notices were receivedby the members for the amount actually spent by them for genuinereasons; that following the decision of the Synod Executive Committeemade on 27.2.2008, the Bishop agreed to send all the books ofaccounts for the years 2005-2006 and 2006-2007 on or before15.3.2008; but they have not complied with the same; and that inorder to look into whether the financial and general management ofthe diocese is functioning properly in accordance with theConstitution, the Synod was compelled to intervene in theadministration of the diocese of Tuticorin Nazareth. Pointing outthe same, the CSI by the said letter directed the plaintiffs tosubmit accounts for the financial years 2005-2006 and 2006-2007within a period of seven days. It was also made clear that theimproper and unconstitutional administration of financial matterswill affect the whole CSI. The plaintiffs were advised not to takeany hasty steps in the matters relating to the financial accounts ofthe diocese for the years 2005-2006 and 2006-2007. 19.It is pertinent to point out that when there were complaintsreceived by the CSI, the Synod in exercise of the powers under theConstitution of the CSI as stated above, convened a meeting and had adiscussion, and also the Bishop has undertaken to submit accounts forverification but failed to do so. On the contrary, the Bishophimself has constituted a High Power Commission of which he becamethe Chairman, and the Auditor and the Treasurer became members. Itis also not in controversy that there was a report filed by theCommission on 13.10.2007, stating that the High Power Commissionfound that there was a misappropriation of Rs.3 crores. While thematter stood thus, the same Bishop as the Chairman of the High PowerCommission sent a letter to the Superintendent of Police that therewas only a misappropriation of Rs.40 lakhs and sent another letterdated 7.3.2007 by way of clarification that Rs.40 lakhs was in fixeddeposit in State Bank of India. In the letter dated 13.10.2007, theBishop has stated that Rs.40 lakhs was misappropriated. The auditreport dated 25.3.2008 also confirmed the said fact. Under thecircumstances, it would be quite natural for the defendants toentertain doubts, and they were compelled to know as to the financialmanagement of the institution. Issuing a letter for submission ofaccounts for perusal in order to find out the actual situation cannotbe stated as illegal or without jurisdiction. Hence the case of theplaintiffs that the issuance of a letter dated 25.3.2008, was aninterference in the internal administration, management and affairsof the first plaintiff diocese cannot be countenanced. This Court isof the considered opinion that to grant interim injunction, no primafacie case is made out. In such circumstances, this Court has nohesitation to set aside the order of interim injunction made by thelearned Single Judge. Accordingly, it is set aside, and the interiminjunction is vacated. 20.As regards the contention put forth by either side in respectof the provisions under Order 1 Rule 8 of C.P.C., no doubt it was acase where both the first plaintiff and the first defendant areunincorporated bodies. At this juncture, Order 1 Rule 8 of CPC saysthat where there are numerous persons having the same interest in one https://hcservices.ecourts.gov.in/hcservices/ suit (a) one or more of such persons may, with the permission of thecourt, sue or be sued, or may defend such suit on behalf of or forthe benefit of all persons so interested. Sec.26 of the CPC reads,"Every suit shall be instituted by the presentation of a plaint or insuch other manner as may be prescribed." As per the aboveprovisions, the institution of such a suit must be with permission ofthe Court, and the suit without getting permission of the Court underOrder 1 Rule 8 of CPC cannot be maintained. So long as the permissionwas not sought for and obtained and not even applied for it cannot bestated that there was a suit properly filed.21.While making an order of injunction, the learned Single Judgehas directed the plaintiffs to submit the accounts for the years2005-2006 and 2006-2007 which, in the considered opinion of thisCourt, was consistent to the direction given by the Synod to theplaintiffs which was in the interest of the CSI and also in exerciseof the powers under the Constitution of Church of South India. Thereis nothing to interfere in that part of the order of the learnedSingle Judge.22.In the result, OSA No.375/2008 is allowed setting aside theorder of the learned Single Judge granting interim injunction. OSANos.357 and 358/2008 are dismissed. The parties shall bear their owncosts. Consequently, connected MPs are closed. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarnsvTo.The Sub Assistant Registrar,Original Side,High Court, Madras+ 3 cc to Mr.Adrian D.Rozario,Advocate,SR.42143 to 42145+ 1 cc to Mr.S.Subbiah, Advocate,SR.43299OSA Nos.357, 358 and375 of 2008CK(CO)EM/2.9.09