The Executive Committee of the Synod Church of South India v. Rt. Rev. Dr. V. Devasahayam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14-9-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA Nos.293 and 296 of 2009andMP No.1 of 2009 in OSA 293 of 2009andMP Nos.1 and 2 of 2009 in OSA 296 of 20091.The Executive Committee of the Synod Church of South India rep. By its General Secretary Rev. Moses Jayakumar No.5, Whites Road Royapettah Chennai 600 014.2.The Most Rev. Dr.J.W.Gladstone Moderator Church of South India No.5, Whites Road Royapettah Chennai 600 014... Appellants in both appealsvs1.Rt.Rev.Dr.V.Devasahayam Bishop in Madras Church of South India - Madras Diocese No.226, Cathedral Road Chennai 600 086.2.Madras Diocesan Council Church of South India rep. By its Secretary Rev.Sampath Baghavandas No.226, Cathedral Road Chennai 600 086... Respondents in both appealsOriginal Side Appeals preferred under Clause 15 of LettersPatent read with Order XXXVI, Rule 9 of Original Side Rules againstthe order of this Court made in O.A.No.492 of 2009 and ApplicationNo.2171 of 2009 in C.S.No.423 of 2009 dated 22.6.2009.For Appellants: Mr.V.Prakash Senior Counsel for Mr.Adrian D.Rozario https://hcservices.ecourts.gov.in/hcservices/ For Respondents: Mr.R.Thiagarajan Senior Counsel for Mr.V.Sanjeevi for R1COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)These appeals challenge a common order of the learned SingleJudge of this Court made in O.A.No.492 of 2009, an application forinterim injunction restraining the defendants from interfering withthe plaintiff's holding the office and discharging the functions ofthe Bishop in Madras, Madras Diocese, and in ApplicationNo.2171/2009, an application for stay of the operation of the letterdated 30.4.2009 of the Moderator to the plaintiff.2.The Court heard the learned Senior Counsel on either side.3.These appeals have arisen under the following circumstances:(a) One Laity Association of Church of South India (CSI) –Madras Diocese, represented by its General Secretary and VicePresident, filed a suit in C.S.No.295 of 2009 for declaration thatthe fifth defendant therein Rt.Rev.Dr.V.Devasagayam, cannot hold thepost of Bishop of CSI, Madras Diocese, beyond 1.5.2009 and also forconsequential reliefs along with the mandatory injunction to directthe defendants 2 and 3 therein to issue a direction to the fourthdefendant in respect of the nomination of Bishopric candidates to thepost of Bishop. In that suit, the plaintiff filed an application inO.A.No.329 of 2009 seeking interim injunction to restrain the fifthdefendant referred to above, from holding the post of Bishop beyond1.5.2009 and also an application in A.No.1561/2009 seeking for adirection to the respondents 1 and 2 to commence election process.In that suit, pursuant to the orders of Court, summons were servedupon the defendants. The Court recorded the statements of thedefendants 1 and 2 therein that Synod would decide the issue relatingto the continuance of the fifth defendant as Bishop since theExecutive Committee of the Synod was seized of the issue. (b) The second defendant in the said suit namely the Moderatorof CSI, issued a communication on 30.4.2009 stating that the term ofoffice of the fifth defendant Bishop would come to an end on1.5.2009, and that he might continue as a caretaker Bishop of CSIDiocese from 2.5.2009 till such time the Executive Committee of Synodtakes a decision as per the interim order passed by the Court dated29.4.2009. (c) While the matter stood thus, the fifth defendant in theabove suit namely Rt.Rev.Dr.V.Devasahayam filed the instant suit inC.S.No.423 of 2009 seeking for a declaration that he was entitled tocontinue to hold the office of Bishop in Madras CSI till he completesthe age of 65, and the letter dated 30.4.2009 issued by the Moderatorwas contrary to the Constitution of CSI and also sought a permanentinjunction restraining the defendants from interfering with hisfunctioning as Bishop of Madras CSI. In the said suit, the plaintiffhas filed the instant applications for the above said interimreliefs. https://hcservices.ecourts.gov.in/hcservices/ (d) The learned Single Judge on enquiry, allowed both theapplications. Hence these appeals at the instance of the defendants1 and 2.4.Advancing arguments on behalf of the appellants, the learnedSenior Counsel Mr.V.Prakash would submit that the appellants areunincorporated bodies, and hence the suit framed is not maintainableunder Order I, Rule 8 of C.P.C.; that the restriction of the tenureof the first respondent was not merely in terms of such resolution,but on account of the first respondent expressing his willingness tohold the office of bishop for not more than 10 years; that the saidrestriction was made on account of health condition of the firstrespondent; that he was a party to his appointment; that theplaintiff has suppressed the above material facts; that the letterdated 24.4.1999 alleged to have been written by the Moderator to thefirst respondent herein was ex facie fabricated for the purpose ofmisleading the Court; that it is pertinent to point out that such anappointment was only after the confirmation by the members of theExecutive Committee of Synod; that the same was final and binding onthe first respondent; that also the Moderator neither had the powerto modify the terms of appointment nor did he do so by virtue of theletter in question; that the first respondent had not sought to takeup the matter with the Synod; that the physical fitness and thewillingness of the person to accept the office of bishop are twocrucial factors to be taken into account for appointment to the saidoffice; that the Synod is clothed with power and discretion to selectand appoint a bishop and the post is not merely by election alone;that apart from that, there was no question of retirement in the caseof the first respondent; that Synod has power to make rules and passresolutions and take executive action; that the first respondent hadno prima facie case; but the balance of convenience was with theappellants, and irreparable loss and hardship would be caused to themin the event of interim orders being passed against them; that thefirst respondent had no substantive right to the office after theexpiry of the said period; that the first respondent was not entitledto continue till the age of 65 years on account of it being contraryto his appointment for 10 years, and hence the order of the learnedSingle Judge has got to be set aside.5.Contrary to the above, the learned Senior CounselMr.R.Thiagarajan for the first respondent in his sincere attempt ofsustaining the order of the learned Single Judge put forth hissubmissions.6.The first contention put forth by the appellants' side thatthe appellants were not given reasonable opportunity even to filetheir counter, but the learned Single Judge has made the orderhastily cannot be countenanced in view of a memo filed by theappellants' side before the learned Single Judge that the counterfiled in M.P.No.1 of 2009 in OSA No.135 of 2009 could be taken as thecounter for this application, and also the Counsel for the appellantsbefore the learned Single Judge had delivered his arguments as couldbe seen from the impugned order. https://hcservices.ecourts.gov.in/hcservices/

7.It is not in controversy that before the appointment of theplaintiff as bishop of the Madras Diocese CSI, nominations werecalled for which were published and circulated to all the members ofthe diocese and the nominations were made by the members of theDiocesan Council. The diocesan council also elected a panel of notless than two and not exceeding four who were actually supported bythe majority of the members of the diocesan council present andvoting. After the voting that took place, the Moderator has examinedthe persons in the panel relating to the physical fitness to do theduties of the bishop along with two other Christian Medical personschosen by him. After doing so, the Moderator must obtain thewillingness of the persons so elected to the panel to accept theoffice of the bishop if appointed. Then the Moderator hascommunicated to the General Secretary, the names of the personselected to the panel by the diocesan council. The Joint Secretaryhas also taken steps to secure by public notice the election of thosepersons to the panel in all churches of the diocese, callingobjections if any. Then the result of the election was submitted tothe Board consisting of the Moderator and six members appointed bythe Executive Committee of the Synod. Following the same, the Boardhas appointed the plaintiff from those elected to the panel by thediocesan council. On appointment as found in Clause 32, theModerator informed the General Secretary the name of the plaintiff asappointed which was informed to all concerned. Following the same,the Executive Committee of the Synod has also confirmed theappointment. The same was also reported to the Moderator. In turn,the Moderator and the General Secretary have executed the certificateof confirmation in the name of the bishop appointed. The consecrationof the plaintiff has also taken place. The parties are not incontroversy as to the above factual position.8.The only question that arose for consideration is whether theappointment of the first respondent/plaintiff bishop as made abovewas only for a period of 10 years ending with 1.5.2009 and thereafterhe cannot continue as contended by the appellants' side or he couldcontinue till he attains 65 years of age as contended by theplaintiff bishop. 9.The learned Senior Counsel for the appellants would submitthat Rule 12(a) of Chapter V of the Constitution of the Church ofSouth India stipulates that a bishop shall retire on the completionof 65 years of age; that the use of the words "shall retire" was witha specific purpose of prescribing the maximum or outer limit forholding the office and constituted a bar only to continuing beyondsuch period in cases where there was no restriction operating, and itdid not mean "until" and hence the first respondent bishop wasappointed only for a period of 10 years considering his healthcondition, and he cannot take shelter under Clause 12(a). On thecontrary, the learned Senior Counsel for the first respondent Bishopwould submit that when a Bishop is appointed, the duration of theperiod would be till the person completes the age of 65. In order tosolve the controversy, it would be more apt and appropriate toreproduce Rule 12(a) as follows: https://hcservices.ecourts.gov.in/hcservices/ "12(a)Duration of Appointment:- The bishop of a dioceseshall remain bishop of that diocese until he resign, oraccept the charge of another diocese, or depart permanentlyfrom the diocese or be deprived of his charge by sentenceof the Court of the Synod, or be adjudged by the ExecutiveCommittee of the Synod to be mentally, physically orotherwise incapable of discharging the duties of hisoffice. A bishop shall retire on completion of his 65th yearof age."10.It is true that the above clause would abundantly make itclear that a bishop so appointed will have the term of office tillthe completion of 65th year of his age. At this juncture, it is to bepointed out that the Synod is the supreme governing and legislativebody of the Church of South India. They are the final authority inall the matters pertaining to the church. Clause 13 of Chapter IX ofthe Constitution speaking to the powers of the synod reads asfollows:"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."Thus it can be well stated that Synod is clothed with powers inrespect of all matters pertaining to the church.11.The next contention put forth by the appellants' side is thatthe plaintiff bishop having accepted his tenure of office as bishopfor a period of 10 years should not be allowed to continue as bishopof Madras diocese for two reasons; that firstly he is estopped fromstating that his appointment was till his completion of 65 yearswhile he has accepted an appointment for a period of 10 years; thatsecondly he has also enjoyed the benefits of appointment for 10years; and that under the circumstances, now he should not be allowedto question the validity or otherwise of the appointment afterenjoying the benefits of the same. Contrarily it is contended by thefirst respondent bishop that he was appointed till his completion ofthe age of 65 as contemplated under the Rule and not for a period of10 years as contended by the appellants. In the instant case, it isnot in controversy that the plaintiff was duly appointed as bishopand also consecrated in the office. Nowhere in the entireConstitution it speaks about the restricted period of 10 years or anyperiod. On the contrary it stipulates under Rule 12(a) "till thecompletion of his 65th year". When the nominations were made orelections conducted, it was also not for a stipulated period; but itshould have been only for a period as envisaged under Rule 12(a). Insupport of the contention, the learned Senior Counsel for theappellants placed reliance on different communications which emergedbetween the Church of South India and the plaintiff bishop. 12.The minutes of the meeting of the bishop's selection board ofMadras Diocese met on 5.4.1999 at 4.00 P.M. at CSI Synod Centre readsas follows:"After preliminary discussion the candidates of the panelwere interviewed. After prolonged consideration, considering all aspectsrelating to the candidates particularly with regard to https://hcservices.ecourts.gov.in/hcservices/ health condition of both of them it was unanimously decidedto restrict the period of appointment, in the interest ofthe Diocese for a period of 10 years. (emphasis supplied)...After careful consideration it was unanimously resolved toappoint the Rev.Dr.V.Devasahayam and recommend to theModerator to consecrate him as Bishop of the Diocese ofMadras."13.A letter from the Church of South India dated 11.4.1999addressed to all the members of the Synod Executive Committee readsas follows:"Rev.Devasahayam has expressed his desire, in writing, tohold the office of Bishop for not more than ten years forreasons that he shared with the Board and the Board hasdecided accordingly...." (emphasis supplied)14.On 24.4.1999, a letter was addressed by the Moderator andBishop to Rev.Samuel Jacob, the Secretary, CSI Madras Diocese, whichreads as follows:"The Board, after personal interview and careful study ofthe two candidates elected to the panel by the MadrasDiocesan Council and giving due consideration of the needsof the Diocese, has decided to select Rev.Dr.V.Devasahayamfor appointment as the Bishop of Madras Diocese for aperiod of ten years. The Synod Executive Committee also has confirmed the aboveappointment.I, therefore, hereby inform you and the Diocese that Rev.Dr. V.Devasahayam has been duly selected for appointment asthe Bishop of the Diocese of Madras for a period of tenyears. The order of appointment comes into effect from thedate of the Consecration." (emphasis supplied)It is pertinent to point out that a copy of the above letter wasaddressed to the plaintiff Bishop Devasahayam.15.The plaintiff Bishop Devasahayam has also attended theDiocesan Executive Committee meeting on the very day i.e., 24.4.1999,as a special invitee. In the meeting held on 28.8.1999, the minutesof the previous meeting held on 24.4.1999 was read and confirmed bythe Executive Committee. 16.All the above communications would clearly indicate that theBishop's Selection Board has taken into consideration all aspectsrelating to the candidates with regard to their health condition andunanimously decided to restrict the period of appointment and also inthe interest of the diocese, for 10 years. Accordingly, it has madethe appointment for only 10 years, and this was also approvedsubsequently and informed to the plaintiff bishop, and he also gavehis consent in writing. Thereafter, the Synod has issued acertificate of election and appointment of the plaintiff for theMadras Diocese following which the act of consecration has also takenplace as found in the documents. https://hcservices.ecourts.gov.in/hcservices/

17.It is true that in both the documents namely the certificateof election and appointment and also the document for consecration,the period of office of the plaintiff is not mentioned. Equally inthe letter dated 9.4.1999 issued by the Church of South India to themembers of the Synod Executive Committee along with the bio-data ofthe plaintiff Devasahayam and also the letter dated 28.4.1999 wherebythe members of the Synod Executive Committee have expressed theirwillingness for the appointment of Devasahayam as the bishop inMadras Diocese, the term of office is not mentioned. 18.The learned Senior Counsel for the first respondent bishoppointing to all the documents would contend that even at the time ofappointment, the period of office was not stated and hence when theplaintiff bishop was appointed, it was only till he attains the ageof 65. Insofar as certificate of appointment and also the document ofconsecration, one cannot expect the period of tenure of office to bestated therein. At this juncture, it is pertinent to point out thatthe board appointed for the purpose of bishop by the Church of SouthIndia has restricted the period of tenure as 10 years taking intoconsideration the health condition of both the candidates and hasinformed the same to the present bishop, and he has also consentedtherefor. Thereupon, he has also been appointed, and his appointmentwas confirmed in a meeting on 28.8.1999 by the Executive Committee ofthe Diocesan. Once the appointment was made only for a period of 10years and the same has also been accepted by the first respondentbishop and subsequently confirmed by the Executive Committee of theSynod, now the first respondent bishop who did not make any murmurearlier, cannot now be allowed to state that his appointment was fora period till 65 years of his age and that too after the period of 10years is over. (emphasis supplied) 19.Now the learned Senior Counsel for the first respondentbishop in support of his contentions took the Court to a letter dated24.4.1999 written by the Moderator to the plaintiff bishop whichreads as follows:"I acknowledge the receipt of your letter regarding yourorder of appointment limiting your term of episcopal officefor a period of ten years. In consultation with the Synodlawyers, I am to inform you that the retirement of Bishopsis governed by the Constitution of the Church of SouthIndia, i.e., retirement at the completion of 65 years of ageand that the term of office cannot be limited by any ordercontrary to the provision of the Constitution.Ofcourse the Bishop is free to lay down office at any pointof time before retirement on health grounds. I sincerelypray that the God Almighty to give you good health tocomplete your full term. I Invite you to arrange for theconsecration retreat in Chennai with the available seniorbishops as I am not free to lead the retreat. Be assured ofmy prayers as you and your wife prepare yourselves for thishigh calling."20.On the contrary it was contended by the learned SeniorCounsel for the appellants that the said letter was a fabricated onein order to suit the convenience of the first respondent bishop. The https://hcservices.ecourts.gov.in/hcservices/ letter relied on by the first respondent's side cannot be acted uponfor the reason that on the very day i.e., 24.4.1999, the CSI hasaddressed a communication to its Secretary wherein it hasspecifically stated that Devasahayam has been duly selected forappointment as bishop for a period of 10 years and it has come intoeffect from the date of the consecration. This communication is notdisputed and it has also emanated from the CSI. While so, therecannot be another letter on the very day namely 24.4.1999 written bythe Moderator to the plaintiff bishop that his retirement was at thecompletion of 65 years of age and his term of office cannot belimited by any order contrary to the provisions of the Constitution.Hence such a letter could not have been written the very day. Thatapart, the Moderator cannot write such a letter. Even assuming thatthe Moderator has written such a letter, during that time he couldnot extend the period stating that the retirement will be at thecompletion of 65 years of age since it was contrary to the earlierappointment and confirmation by the Synod. At this juncture, it ispertinent to point out that the said letter dated 24.4.1999 relied onby the first respondent/plaintiff bishop, does not refer to anydecision of the Synod. It remains to be stated that only the Synodhas got the power to rectify or set right things if any defect isnoticed and not the Moderator. 21.It is true that on 28.4.1999, the Synod Secretariat, CSI, hasgiven the instrument of election and appointment of theRt.Rev.Dr.V.Devasahayam for Madras Diocese. But it remains to bestated that it was an instrument for election and appointment. Theelection and appointment referred to in that document would refer tothe earlier appointment of 10 years originally accepted by the bishopand confirmed by the Synod in its earlier proceedings. Had thecontention of the first respondent bishop that his appointment wasupto 65 years of his age and not for 10 years been true, the Synodshould have clarified and set right the situation but not done so.All the above would clearly indicate that the Selection Boardconsidering the health condition of both the candidates restrictedthe period as 10 years and out of these two persons, Devasahayam wasselected, and he was also informed about the same and also the tenureof his office. The first respondent bishop has accepted the same andsubsequently the appointment was made and confirmed by the Synod ofCSI. Having accepted the appointment for a period of 10 years, nowhe cannot be permitted to say that he would continue till 65 years ofage taking shelter under Rule 12(a). (emphasis supplied)22.The Bench had an occasion to consider the matter in OSANo.135 of 2009 and has made a final order on 9.6.2009. Whiledisposing of the said appeal, the Bench has observed that there wouldbe an order of status quo till 26.5.2009 and it was made furtherclear that till the appointment is made by the competent authority,the appellant therein who has been continuing as Bishop is entitledto continue and the same order would continue till further orders arepassed by the learned Single Judge. Pursuant to the above orders ofthe Bench, the learned Single Judge has passed the common order whichis the subject matter of challenge in this appeal. Even at thisstage, no appointment was made by the competent authority namely theSynod. As per Rule 16 of Chapter V of the Constitution, when thepost of bishop becomes vacant, the charge and administration would https://hcservices.ecourts.gov.in/hcservices/ devolve upon the Moderator who should administer with fulljurisdiction until a new bishop is appointed. In the case on hand,by way of interim arrangement, the Moderator has permitted the firstrespondent bishop to continue as a caretaker bishop in thecircumstances. Though the first respondent has not made out a primafacie case to continue him as Bishop, in view of the vacancy that iscreated, the first respondent bishop has got to be permitted tocontinue to be the caretaker bishop of the Madras Diocese till thenew appointment is made by the competent authority. 23.Above all, the suit is laid against the Executive Committeeof the Synod, Church of South India, the first defendant and againstthe Madras Diocesan Council CSI as the third defendant, and thereliefs are sought against those defendants. It is not incontroversy that those defendants are unincorporated bodies and arenot legal persons. Thus the suit is filed against the Christiancommunity represented by the defendants who are unincorporatedbodies, and hence the suit itself is not maintainable without gettingpermission under Order 1 Rule 8 of the Code of Civil Procedure. Forinstituting a suit in a representative capacity or filing a suitagainst a representative body, the procedure under Order I Rule 8 ofCPC has to be complied with. The Apex Court in a case reported in(1990)1 SCC 266 (KALYAN SINGH V. SMT.CHHORI) has held that for arepresentative suit, the court's permission under Order 1 Rule 8 ofthe Code of Civil Procedure is mandatory. Admittedly, in the instantcase, no such permission was sought for. So long as no permissionwas either applied or granted, it cannot be stated that the suit isin order. As such the suit framed is not maintainable.24.In the result, both the original side appeals are allowedsetting aside the order of the learned Single Judge and leaving theparties to bear their own costs. The first respondent/plaintiff ispermitted to continue as caretaker bishop of the Madras Diocese tillthe new appointment is made by the competent authority, as per theobservations made in this judgment. It is made clear that any of theobservations made above will not stand in the way of Synod making newappointment. Consequently, connected MPs are closed. nsvSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Sub Asst Registrar, Original Side, High Court, Madras.+2ccs to MR.V. Sanjeevi, Advocate SR No.46486/09+4ccs to Mr.Adrian D.Rozaraio, Advocate SR No.46533, 46534/09SV(CO)SR/14.9.2009OSA Nos.293 and 296/2009