C.R.P (PD) No.2527 of 2008 : Civil Revision preferred by the second defendant in the suit against the Order, dated 30.04.2008 made in I.A.No.7857 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, seeking an order to return the plaint under Order VII Rule 10 CPC, which was dismissed by the court below.
C.R.P (PD) No.2528 of 2008 : Civil Revision preferred by the second defendant in the suit against the Order, dated 21.07.2008 made in I.A.No.7860 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, wherein the petitioners / plaintiffs in the suit had sought for an order to receive additional documents, which was allowed by the court below.
C.R.P (PD) No.2529 of 2008 : Civil Revision preferred by the second defendant against the Order, dated 21.07.2008 made in I.A.No.9666 of 2008 in I.A.No.6990 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, whereby the application was filed under Order XXXIX Rule 4 and 151 CPC to recall and rescind the order of status quo, dated 30.04.2008 made in I.A.No.6990 of 2008. In the impugned order, the court below has stated that the application in I.A.No.9666 of 2008 was allowed, however, it varied the order, dated 30.04.2008 by granting status quo as on the date prior to 21.12.2007.
C.R.P (PD) No.2601 of 2008 : Civil Revision filed against the Order of status quo, dated 30.04.2008 made in I.A.No.6990 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, which was filed by the plaintiffs in the suit under Order XXXIX Rule 1 and 2 CPC.
C.R.P (PD) No.2602 of 2008 : Civil Revision filed by the petitioners against the Order, dated 21.07.2008 made in I.A.No.9666 of 2008 in I.A.No.6990 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai, and the I.A.No.9666 of 2008 was filed under Order XXXIX Rule 4 and 151 CPC to recall and rescind the order dated 30.04.2008 made in I.A.No.6990 of 2008 by the second defendant. In the impugned order, the court below has stated that the application was allowed, however, varied the order, dated 30.04.2008 by granting status quo as on the date prior to 21.12.2007.
All the Civil Revision Petitions have been preferred against the orders passed in the Interlocutory Applications filed in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai.
2. It is an admitted fact that all these impugned orders and the corresponding Civil Revision Petitions are relating to the suit in O.S.No.2898 of 2008, which was filed by the respondents 2 to 59 in CRP (PD) Nos.2527 to 2529 of 2008 as plaintiffs of the suit, under Order VII Rule 1 CPC, seeking Judgment and Decree in favour of the plaintiffs for declaration that they have been duly elected as the office bearers of the Church Council and Diocesan Council of the second defendant, the Diocese of Tirunelveli (C.S.I), represented by its Bishop and also for consequential permanent injunction restraining the said second defendant, its men, subordinates, agents etc., from interfering in any manner with the plaintiffs discharging their duties and performing their function including in the matter of appointment and transfer of teachers in schools and colleges of the second defendant Diocese. The respondents 2 to 59 being the plaintiffs in the suit filed Interlocutory Application in I.A.No.6990 of 2008 under Order 39 Rule 1 and 2 CPC, seeking for ad-interim injunction restraining the Diocese of Tirunelveli (CSI), its men, subordinates, agents etc., from interfering in any manner with the petitioners discharging duties and performing their function in their respective posts in the matter of appointment and transfer of teachers in schools and colleges run by the second respondent Diocese.
3. It is seen that in the Interlocutory Application in I.A.No.7857 of 2008 filed under Order VII Rule 10 CPC by the second defendant, Diocese of Tirunelveli, represented by its Bishop, the prayer sought for is to return of the plaint filed in O.S.No.2898 of 2008, however, by order, dated 30.04.2008, the aforesaid application was dismissed by the court below. In the Interlocutory Application in I.A.No.6990 of 2008 filed by the plaintiffs in the suit, the court below directed both the parties to maintain status quo till the disposal of the suit. As per the finding, it was held by the court below that both of them have not submitted all the relevant documents and having viewed that there might be some discrepancy in the election and on the doubts in the averments regarding the genuineness of the alleged elected members, both the parties were directed to maintain status quo. I.A.No.9666 of 2008 has been field by the second defendant to recall and rescind the order of status quo, dated 30.04.2008 made in I.A.No.6990 of 2008 in the said suit.
4. I.A.No.7860 of 2008 was filed by the respondents / plaintiffs to receive additional document, which was allowed by order, dated 21.07.2008. I.A.No.8507 of 2008 was filed by the plaintiffs, under Section 151 CPC to clarify the nature, extent and scope of the order of the status quo, as per order passed on 30.04.2008 in I.A.No.6990 of 2008 in O.S.No.2898 of 2008, the said application was dismissed by the court below on the ground that there was no need to clarify the order passed in I.A.No.6990 of 2008. Against the order, the plaintiffs have not preferred any revision.
5. I.A.No.9666 of 2008 was filed by second defendant under Order XXXIX Rule 4 and Section 151 CPC to recall and rescind the order of status quo, dated 30.04.2008 made in I.A.No.6990 of 2008, that was resisted by the respondents / plaintiffs. However, by order dated 21.07.2008, the court below allowed the application filed by the second defendant, Diocese of Tirunelveli (SCI), but directed the parties to maintain status quo, as on the date, prior to 21.12.2007, instead of the earlier order, dated 30.04.2008 passed in I.A.No.6990 of 2008, whereby the court had directed the parties to maintain status quo only prospectively on 30.04.2008. As per the decreetal order, it is seen that the application filed in I.A.No.9666 of 2008 has been stated as allowed by the court below. The prayer in the application is only to recall and rescind the status quo order, dated 30.04.2008. According to the learned counsel for the revision petitioners, having allowed the said application, the court below could have recalled and rescind the order of status quo, but strangely granted status quo ante in favour of the respondents / plaintiffs with effect from 21.12.2007 against law and without any jurisdiction by the court below.
6. In the Interlocutory Application in I.A.No.6990 of 2008, the respondents / plaintiffs have sought for an interim injunction to restrain the revision petitioner / second defendant in the suit from interfering with the functioning of the petitioners in their respective posts alleged by them. However, by order, dated 30.04.2008, the court below has granted only an order of status quo. The Interlocutory Application in I.A.No.7857 of 2008 was filed by the second defendant / the Diocese of Tirunelveli (CSI), represented by its Bishop to return the plaint under Order VII Rule 10 CPC, which was dismissed by the court below, by order, dated 30.04.2008. Aggrieved by which, the second defendant / the Diocese of Tirunelveli (CSI), represented by its Bishop has preferred C.R.P (PD) No.2527 of 2008.
7. In the Interlocutory Application in I.A.No.6990 of 2008, as per the order, dated 30.04.2008, the respondents / plaintiffs have sought for interim injunction to restrain the Diocese of Tirunelveli (CSI), represented by its Bishop, second defendant in the suit from interfering with the functioning of the petitioners, as elected office bearers. However, by order, dated 30.04.2008, the court below had granted only an order of status quo to be maintained by both the parties. Aggrieved by which, C.R.P (PD) No.2601 of 2008 has been preferred. Subsequently, by order, dated 21.07.2008 passed in I.A.No.9666 of 2008, the court below has directed the parties to maintain status quo ante as on the date prior to 21.12.2007. Aggrieved by which, C.R.P (PD) No.2602 of 2008 has been preferred.
8. Mr.N.R.Chandran, learned Senior Counsel, who continued the arguments of Mr.T.R.Rajagopalan, learned Senior Counsel appearing for Mr.T.R.K.Kumarasingh for the revision petitioners in C.R.P (PD) Nos.2527 to 2529 of 2008 submitted that the orders passed by the court below is against law and without jurisdiction. Though the Interlocutory Application in I.A.No.9666 of 2008 was filed only by the revision petitioner herein, being the second defendant in the suit to recall and rescind the order, dated 30.04.2008 made in I.A.No.6990 of 2008, the court below has erroneously granted relief of status quo ante prior to 21.12.2007, exceeding its jurisdiction in favour of the respondents / plaintiffs, though no such prayer was sought for in the Interlocutory Application. According to the learned Senior Counsel, the prayer in the suit relates to the election of the Church Council and Diocesan Council of the revision petitioner, The Diocese of Tirunelveli, who is the second defendant in the suit. According to him, the cause of action, as alleged in the plaint arose only at Tirunelveli and number of suits between the same parties, based on the same cause of action were filed and pending before various courts in Tirunelveli District. The respondents / plaintiffs could not get either interim injunction or any other interim order in their favour, however, merely by impleading the Church of South India, represented by its Moderator at Chennai as first defendant, the suit has been filed before the City Civil Court, Chennai and suppressing the material facts, got interim order in their favour. Though, ad-interim injunction was sought for by the respondents / plaintiffs, only status quo was granted, by order, dated 30.04.2008 and despite the fact that the application in I.A.No.8507 of 2008 filed by the respondents / plaintiffs seeking to clarify the order of status quo having been dismissed by the court below, the impugned order, dated 21.07.2008 has been passed, subsequently in I.A.No.9666 of 2008, whereby status quo ante has been granted by the court below to maintain status quo from the date, prior to 21.12.2007, which is against law and without jurisdiction. According to the learned senior counsel, the impugned orders are not legally sustainable. In support of his contention, the learned Senior Counsel relied on the following decisions :
1. Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., 1996 (5) SCC 550
2. United India Insurance Company India Ltd., vs. Rajendra Singh, 2000 (2) MLJ 181 (SC)
3. Authorised Officer, Thanjavur, vs. S.Naganatha Ayyar, AIR 1979 SC 1487
4. A.V.Papayya Sastry & others vs. Government of A.P & others, 2007-4-LW 139
5. Musaraf Hossain Khan vs. Bhagheeratha Engg., Ltd., 2006 (2) CTC 57
6. State of Rajasthan vs. M/s. Swaika Properties, AIR 1985 SC 1289
7. Annapoorni vs. Janaki, 1995-1-LW 141
8. Annalakshmi vs. State of Tamil Nadu, 1994 (1) MLJ 153
9. Per contra, Mr.T.V.Ramanujam, learned Senior Counsel appearing for Mr.C.S.K.Satish, the 34th respondent in C.R.P (PD) Nos.2527 to 2529 of 2008 submitted that there is no illegality in the impugned order to be interfered with. According to the learned Senior Counsel, the revisions preferred by the petitioners herein are legally not maintainable. It was contended that the Interlocutory Application filed in I.A.No.7857 of 2008 by the petitioner / D2 under Order VII Rule 10 CPC, seeking an order to return the plaint in O.S.No.2898 of 2008 was not legally maintainable and hence, it was rightly dismissed by the court below. In support of his contention, the learned Senior Counsel drew the attention of this Court to the provision of Order VII Rule 10 CPC, wherein, the rule specifies that subject to provisions of Rule 10 A of Order VII, a plaint shall at any stage of the suit be returned to be presented in the Court, in which the suit should have been instituted. Under the aforesaid provision, either on the request of the plaintiff or suo moto by the trial court if the suit should have been instituted in some other court, order for return of the plaint, for want of jurisdiction to be presented in the proper forum. The defendant in the suit cannot file any Interlocutory Application, under Order VII Rule 10 CPC to return the plaint to the plaintiff, if at all the second defendant could have filed only an application to decide the jurisdiction and maintainability of the suit, as a preliminary issue and not for return of the plaint. The learned Senior Counsel raised his objection even with regard to the maintainability of all the Civil Revision Petitions.
10. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the respondents / plaintiffs further submitted that the petitioners could not maintain the revision petitions under Article 227 of the Constitution of India on the ground of alternative remedy available, under the Code of Civil Procedure and further submitted that the court below has got jurisdiction to try the suit, since the Office of the Moderator, Church of South India, the first respondent herein, is only at Chennai. The respondents / plaintiffs have filed the suit to declare that the plaintiffs are duly elected office bearers of the Church Council and Diocesan Council of the second defendant, Diocese of Tirunelveli, represented by its Bishop at Tirunelveli and also for consequential injunction against the second defendant / revision petitioner, who is admittedly having his office at Tirunelveli. However, according to the respondents / plaintiffs, on 30.01.2008, they presented a petition before the Moderator (CSI), the first respondent herein at Chennai and according to Mr.T.V.Ramanujam, learned Senior Counsel, part of the cause of action arose at Chennai, hence, the court below has got territorial jurisdiction to try the suit filed by the plaintiffs. It has been further contended by the learned Senior Counsel that against the impugned order passed by the court below, as per Order XLIII Rule 1 (a) and (r) of the Code of Civil Procedure, it is an appealable order, hence, the revision petitioner / D2 is not entitled to prefer any revision against the order passed by the court below.
11. It is an admitted fact that the petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008 were not impleaded as parties to the suit and in the Interlocutory Application, hence they filed a petition before this Court, seeking leave to prefer these Civil Revision Petitions and the same was allowed and the aforesaid Civil Revision Petitions were taken up for hearing, subject to maintainability of the Revision Petitions.
12. Mr.T.V.Ramanujam, learned Senior Counsel contended that the petitioners in the C.R.P (PD) Nos.2601 and 2602 of 2008 have no loco standi to maintain the revision petitions, since they are not parties to the suit. According to him, the Diocese of Tirunelveli (CSI), represented by its Bishop, Tirunelveli is the second respondent and also second defendant in the suit, hence, the revision petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008 cannot claim any independent right to maintain the Civil Revision Petitions under Article 227 of the Constitution of India. In support of his contention, he cited the following decisions :
1. Arjun Singh vs. Mohindra Kumar and Others, AIR 1964 SC 993
2. A.Venkatasubbiah Naidu vs. S.Chellappan, 2000 (7) SCC 695
3. Surya Dev Rai vs. Ram Chander Rai, 2003 (4) CTC 48
4. Ummer Koya, P.T. vs. Tamil Nadu Chess Association, 2005 (3) CTC 86
13. Mr.R.Krishnamurthy, learned Senior Counsel, appearing for Mr.N.S.Nanda Kumar for the revision petitioners in CRP (PD) Nos. 2601 and 2602 of 2008, submitted that the Civil Revision Petitions filed under Article 227 of the Constitution of India are legally maintainable, since they are aggrieved persons of the impugned orders, but were not made as parties, though the respondents / plaintiffs have raised specific allegations against them in the plaint, however, without impleading them as parties to the suit, behind their back the respondents / plaintiffs have obtained the impugned orders against the revision petitioners herein, by adopting method of forum shopping, which is a clear abuse of process of court and therefore, the Civil Revision Petitions filed by the aforesaid petitioners, invoking Article 227 of the Constitution of India is legally maintainable. The learned Senior Counsel contended that the impugned orders have been passed without jurisdiction by the court below and without impleading necessary parties, hence, the revision petitions in C.R.P (PD) Nos.2601 and 2602 of 2008 have been preferred. It was further contended that the revision petitions have independent rights and they do not claim any right through the other revision petitioner, namely the Diocese of Tirunelveli (CSI) represented by its Bishop, the second respondent herein and second defendant in the suit.
14. According to the learned Senior Counsel, by the earlier order, dated 30.04.2008 made in I.A.No.6990 of 2008, the court below had directed both the parties to the suit to maintain status quo and therefore, factually, there was no grievance for the revision petitioners, since the revision petitioners have been elected and holding their respective posts, though they were not impladed as necessary parties. However, without any basis, the court below has exceeded its jurisdiction and passed the impugned order, dated 21.07.2008 in I.A.No.9666 of 2008 against law and adverse to the rights and interest of the revision petitioners, by directing the parties to maintain status quo ante prior to 21.12.2007 and that the order has been passed, even without impleading necessary parties, namely the revision petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008. Only after knowing the adverse order passed against them, they preferred the revision petitions, after obtaining leave from this Court. According to the learned Senior Counsel, the only remedy available for the petitioners is filing the revision petitions by invoking Article 227 of the Constitution of India. It was further contended by the learned Senior Counsel that the respondents / plaintiffs have raised specific allegations against the revision petitioners in their plaint itself at paragraph number 12, however, they were not arrayed as respondents / defendants in the suit. Suppressing the material facts, that there are similar suits filed and pending before various courts in Tirunelveli District and without impleading the necessary parties, by merely impleading the first respondent at Chennai, who has nothing to do with the election dispute filed the suit in the City Civil Court, Chennai and have obtained the impugned orders from the court below, which has no jurisdiction.
15. Mr.R.Krishnamurthy, learned Senior Counsel has further submitted that fraud has been played on the court below in obtaining the impugned orders and that there is no alternative remedy available for the revision petitions, hence, it is a fit case to invoke Article 227 of the Constitution of India. In support of his contention, the learned Senior Counsel relied on the following decisions :
1. Tamil Nadu Electricity Board, Vellore vs. A.Krishnan, 1997 (1) CTC 116
2. Bannari Amman Sugars Ltd., vs. R.Sakthivel, 2008 (2) MLJ 646
3. Sivasubramanian, J. vs. N.Govindarajan, 1998 (1) CTC 470
4. Rani Mohanraj and another vs. P.Rajarathinam, 1999 (2) LW 757
5. Rani Mohanraj and other vs. P.Rajarathinam, 1998 (1) LW 618
6. Varada Reddiar and another vs.Jayachandran and another, 1996 (II) CTC 611
16. Mr.R.Gandhi, learned Senior Counsel appearing for Mr.P.Tamizh Kumaran for R33 in C.R.P (PD) Nos. 2601 and 2602 of 2008 submitted that the petitions filed under Article 227 of the Constitution of India are legally not sustainable. The learned Senior Counsel contended that as per Order XLIII Rule 1 (r) any order passed under Order XXXIX Rule 1 and 2 or Rule 4 is an appealable order, as per the Code of Civil Procedure and therefore, against such order, revision will not lie before this Court, even as per Section 115 of the Code of Civil Procedure. The learned Senior Counsel further contended that there is no allegation raised by the revision petitioners in CRP (PD) Nos.2601 and 2602 of 2008 that the revision petitioner in the other revision petitions, namely Diocese of Tirunelveli (CSI), represented by its Bishop, Tirunelveli is colluding with the respondent / plaintiffs and hence, the revision petitioners herein cannot maintain independently the revisions, when they are not parties to the suit. Mr.R.Gandhi, learned Senior Counsel further contended that the second defendant has not stated the names, as to who are all the elected persons in the counter filed by him before the trial court. According to him, the Moderator, the Church of South India (CSI), the first respondent herein is admittedly having his office at Chennai and hence, the dispute is subject to the jurisdiction of the City Civil Court, Chennai. As per Rule 3, Chapter IV of the Constitution of the Diocese of Tirunelveli, the previously elected representatives may continue their office, if the subsequent election is not established and hence, according to the learned Senior Counsel, the Civil Revision Petitions are liable to be dismissed, as they have no legs to stand.
17. The main contention raised by the learned Senior Counsel appearing for the respondents in all the Civil Revision Petitions is that the Civil Revision Petitions filed, by invoking Article 227 of the Constitution of India are not legally maintainable, on the ground of alternative remedy available. They further contended that there is no illegality or material irregularity in the impugned orders, so as to warrant any interference of this Court in the revisions.
18. Mr.T.V.Ramanujam, learned Senior Counsel cited the decision, A.Venkatasubbiah Naidu, vs. S.Chellappan, reported in 2000 (7) SCC 695 and contended that an Order passed under Order XXXIX Rule 1 and 2 or Rule 4 CPC is an appealable order and when there is alternative remedy, revision filed under Article 227 of the Constitution of India is not maintainable. In the aforesaid decision, the Hon'ble Apex Court has ruled that it is a well recognized principle, which gained judicial recognition that the High Court should direct the party to avail himself of such remedy one or the other before he resorts to the Constitutional remedy. In the aforesaid case, the revision petitioner was affected by an exparte interim order and therefore, the remedy was available to set aside the exparte order before the same court, as per the Code of Civil Procedure.
19. In the aforesaid decision, it has been made clear that if there is any exparte order passed by the court below, the aggrieved party, without exhausting his alternative remedy cannot directly approached the High Court, by way of revision, under Article 227 of the Constitution.
20. Mr.R.Krishnamurthy, learned Senior Counsel strenuously argued on this point saying that the aforesaid decision is not applicable for the facts and circumstances of the case, since there is no alternative remedy available for the petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008 and admittedly no exparte order has been passed against the revision petitioners herein. As contended by the learned Senior Counsel, it is seen that the respondents / plaintiffs have raised specific allegations against the revision petitioners at paragraph number 12 of the plaint as follows :
"It is submitted that in the meantime, fearing defeat the said Mr.D.Vedanayagam connived with the Bishop and in result there was a sudden change in the candidature for Lay Secretary in Mr.Vedanayagam's group. Instead of Mr.D.Vedanayagam, Mr.A.Devadoss, brother-in-law of Bishop was announced as the candidate to contest in the election for Lay Secretary. So the Bishop and the said Mr.D.Vedanayagam colluded together and hatched an evil design to get Mr.A.Devadoss elected as Lay Secretary in one or the other way. Thus the Bishop became biased and one sided."
However, the revision petitioners herein against whom, the respondents / plaintiffs have raised the specific allegations have not been arrayed as parties to the suit, for the reasons best known to the respondents / plaintiffs. Admittedly, there is no exparte order passed against the contesting respondents in the Interlocutory Application. Therefore, the aforesaid decision is not applicable for the facts and circumstances of the case on hand.
21. In the decision, Surya Dev Rai vs. Ram Chander Rai, reported in 2003 (4) CTC 48, the Hon'ble Apex Court has ruled on the supervisory jurisdiction under Article 227 of the Constitution of India as follows :
"Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction exception any court or tribunal constituted by or under any lay relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by sub-Articles (2) and (3) of Article 227 with which we are not concerned here at. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles thereon. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found to certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar."
22. In the decision, Umaji Keshao Meshram and others vs. Smt.Radhikabai and another, reported in 1986 Supp. SCC 401, the Hon'ble Apex Court has held that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
23. In Chandrasekhar Singh and others vs. Siva Ram Singh and others, reported in 1979 (3) SCC 118, the scope of supervisory jurisdiction under Article 227 of the Constitution has been held by the Hon'ble Apex Court in the light of the earlier decision by Full Bench consisting of 3 judges and summed up the position of law as under :
"(i) that the powers conferred by the High Court under Article 227 of the Constitution cannot, in any way, be curtailed by the provision of the Code of Criminal Procedure;
(ii) the scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds to their authority and not for correcting mere errors;
(iii) that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution;
(iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, be exercise of its jurisdiction under Article 227, convert itself into a Court of appeal."
24. In the decision Baby vs. Travancore Devaswom Board and others, reported in 1998 (8) SCC 310, it has been held that the power of High Court under Article 227 of Constitution of India is always in addition to the revisional jurisdiction conferred on it.
25. The Constitutional Bench in L.Chandra Kumar vs. Union of India and others, reported in 1997 (3) SCC 261, dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with, much less taken away even by Constitutional amendment. The Constitutional Bench of the Supreme Court has categorically ruled the importance of Article 227 by highlighting the same as a basic structure of the Constitution. However, it cannot be invoked merely to correct any error of fact as an appellate court and when alternative remedy is available, the Constitutional remedy under Article 227 cannot be invoked.
26. In Aligarh Muslim University & Anr. vs. Vinay Engineering Enterprises Pvt. Ltd. & Anr., reported in 1994 (4) SCC 710, three Judge Bench ruled that only because the office of the firm was at Calcutta, the High Court of Calcutta could not exercise any jurisdiction by stating thus:
"We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable."
27. The Hon'ble Apex Court has held in Surya Dev Rai vs. Ram Chander Rai & Ors, reported in 2003 (6) SCC 675 as regards exercising the jurisdiction under Article 227 of the Constitution of India as follows :
"The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or Tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction."
28. In the decision, Musaraf Hossain Khan vs. Bhagheeratha Engg. Ltd., reported in 2006 (2) CTC 57, it has been held that in a case of dishonour of cheques presented for payment in Suri Branch of the Bank in the State of West Bengal, the same were dishonoured and complaint was lodged before the Court of Chief Judicial Magistrate, Suri in West Bengal and in that case, summons were sent to the accused at their address in Midnapore, West Bengal. The accused filed writ petition in the High Court of Kerala on the ground that the cheques were issued by the accused Company from its Registered Office in Kerala and as such contended that part of cause of action arose within the jurisdiction of Kerala High Court. Though Kerala High Court granted stay, on appeal, the Supreme Court has held that the Kerala High Court has no jurisdiction, stating that cause of action has definite connotation, which means the bundle of facts, which would be required to be proved in a case and not otherwise.
29. In the instant case, the respondents / plaintiffs have averred in the plaint that the cause of action for the suit arose on 04.02.2007, when the election of Church Council was conducted, on 21.12.2007, when the Diocesan Council election was held and right from 21.12.2007, when the Bishop, Diocese of Tiruvelveli (CSI) is interfering with the functioning of the plaintiffs as duly elected office bearers and on subsequent dates when the Bishop is openly saying that he would not allow the plaintiffs to discharge their functions. It is seen that only by adding a subsequent representation in the cause of action paragraph of the plaint, stating that on 30.01.2008, the plaintiffs presented a petition before the first respondent, Church of South India, represented by its Moderator at Chennai, this suit has been filed at Chennai. The relief sought for in the plaint is for declaration that the plaintiffs have been duly elected office bearers of the Church Council and Diocesan Council of second defendant, Diocese at Tirunelveli in their respective posts as detailed in the annexure and for consequential permanent injunction restraining the second defendant at Tirunelveli, its men, subordinates, agents, etc from interfering in any manner with the plaintiffs discharging their duties and performing their function including in the matter of appointment and transfer of teachers of the schools and colleges of the second defendant, Diocese in Tirunelveli.
30. Admittedly, the prayer sought for is only against the revision petitioner / second defendant, Diocese of Tirunelveli (CSI), represented by its Bishop and no relief has been sought for against the first defendant / Moderator (CSI) at Chennai in the suit. It is not in dispute that elections for various categories of the Diocese, Tirunelveli (CSI) were conducted only in Tirunelveli, even as per the plaint averments. Hence, in the light of the aforesaid decision of the Apex Court, it goes without saying that bundle of facts which would be required to be proved in the suit, relating to Tirunelveli.
31. This Court, by order, dated 20.12.2007, made in A.No.7900 of 2007 in C.S.D.No.40445 of 2007 on the application filed by one Thiru.M.Isaac for himself and on behalf of 125 elected Church Council and Diocesan Council Members of 17 Pastorates of the CSI Diocese of Tirunelveli against the Moderator (CSI), Chennai and Diocese of Tirunelveli (CSI) represented by its Bishop and others, challenging the election conducted on 04.12.2007 to the post of Executive Committee Members for Tirunelveli Diocese, it has been held by the learned single Judge of this Court, that this court will not assume original side jurisdiction, merely because the Synod is situated within the jurisdiction of this Court at Chennai and accordingly, the application for leave to sue was dismissed by this Court. In the order referred to above, The Hon'ble Mrs.Justice R.BANUMATHI, considering Chapter IX Rule 15 of the Constitution of the Church of South India, held that Synod at Chennai is the highest representative body of CSI to deal with matters of common interest and which affect the relationship of the Diocese. However, as per Chapter VIII Rule 10 of the Constitution of the Church of South India, every Diocesan Council shall appoint an Executive committee, may appoint other Committees / Boards and delegate to them such of its functions and duties. It is not in dispute that election to Tirunelveli Diocese for Executive Committee is governed by Constitution of the Diocese of Tirunelveli and electorates are also of Tirunelveli. The notification was issued at Tirunelveli and therefore, the Moderator at Chennai is nothing to do with the election held at Tirunelveli. In this regard, I concur the view of Her Lordship Banumathi, J and I hold that the first respondent, Moderator (CSI), Chennai has nothing to do with the election of Tirunelveli Diocese, as per their Constitution. The Synod at Chennai deals only with the common interest of the Church, which hardly has no role to play in Tirunelveli Diocese Council election.
32. In the light of the decisions of the Hon'ble Apex Court referred to above, I am of the considered view that the entire cause of action, as per the pleadings of the plaintiff and the available material has arisen only at Tirunelveli and not at Chennai.
33. Learned counsel appearing for the respondents / plaintiffs brought to the notice of this Court an earlier order, dated 07.11.2007 made in C.R.P (NPD) No.3509 of 2007 passed by Hon'ble Mr.Justice P.JYOTHIMANI, which relates to C.S.I Diocese of Kaniyakumari, represented by its Secretary, wherein it is stated that in the impugned order relates to the prayer for striking off the plaint. His Lordship P.JYOTHIMANI, J held that there was a prima facie case and hence, the prayer for striking off the plaint cannot be decided at that stage. On a perusal of the orders passed by the two learned Judges of this Court, I am of the considered view that there is no conflicting view in the orders referred to above. Hon'ble Mrs.Justice R.BANUMATHI, has arrived at a conclusive finding that the original jurisdiction of the High Court could not be invoked in the elction dispute of the Diocese of Tirunelveli at Chennai and further, held that the Moderator has got no role to play in the internal affairs of the Diocese at Tirunelveli. It is not in dispute that as per Section 3 r/w 2 (2) of the Chennai City Civil Court Act, 1892, the jurisdiction of City Civil Court, Chennai is co-extensive with that of the original jurisdiction of the High Court of Madras at Chennai. Therefore, on the facts and circumstances, the aforesaid conclusive finding of this Court that there is no original jurisdiction for the Court at Chennai, in maintaining the suit is applicable to the facts of this case, which is binding on the City Civil Court, Chennai.
34. It is an admitted fact that number of earlier suits relating to the very same election dispute, relating to the Diocese of Tirunelveli are pending in various courts in Tirunelveli District. As per the order passed in the application, seeking leave to sue decided by Her Lordship Mrs. Justice R.BANUMATHI also, it is seen that the dispute relates to the election held on 04.12.2007 for the post of Executive Committee members of the same Diocese of Tirunelveli. Here also the aforesaid election is under challenge. Under such circumstances, the suit could not have been entertained by the City Civil Court, Chennai.
35. In the affidavit filed in support of I.A.No.9666 of 2008, the revision petitioner / second defendant has stated that plaintiff number 56 one Dr.D.Ranjan had instituted O.S.No.62 of 2008 on the file of the District Munsif, Tirunelveli on 10.06.2008 praying for decree of declaration that the election held on 04.12.2007 and 21.12.2007 are null and void, where as the same person has filed the present suit along with 57 others challenging the aforesaid election in the City Civil Court, Chenai. The plaintiff number 55, Dharmaseelan instituted O.S.No.650 of 2007 on 10.12.2007 for a declaration that the third phase of election held on 04.12.2007 as null and void and also for consequential injunction before District Munsif Court, Tirunelveli. The same has not been denied by the respondents / plaintiffs. Further, the revision petitioners have produced certified xerox copy of the plaint, relating to the aforesaid suits in their typed set. At page number 225 of the typed set, the plaint copy of O.S.No.650 of 2007 on the file of the District Munsif, Tirunelveli is available, which shows that the allegation of the revision petitioners is true. One of the plaintiffs herein along with one A.D.J.C.Manohar has filed the suit, seeking the very same relief, based on the very same cause of action before the Tirunelveli Court. The suit has been filed by the aforesaid persons for themselves and also as representatives of the other members of the Tirunelveli Diocese. O.S.No.62 of 2008 has been filed by Dr.D.Ranjan and four others for themselves and on behalf of the other members of the Diocese of Tirunelveli under representative capacity before the District Munsif Court, Tirunelveli, wherein the very same prayer in the present suit has been sought for on the same cause of action. In the list of documents, the copy of the order, dated 30.04.2008 passed in I.A.No.6990 of 2008 in O.S.No.2898 of 2008 on the file of the II Assistant City Civil Court, Chennai has also been marked as Document No.7.
36. Mr.R.Krishnamurthy, learned Senior Counsel appearing for the revision petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008 contended that the aforesaid plaintiffs could not obtain any interim order against the defendants in the courts at Tirunelveli, however, merely by impleading the Moderator, Church of South India at Chennai, instituted the present suit stating the very same cause of action and seeking relief only against the second defendant, Diocese of Tirunelveli (CSI), represented by its Bishop and got an order to maintain status quo in I.A.No.6990 of 2008 before the II Assistant City Civil Court, Chennai. Though the subsequent petition filed by the respondents / plaintiffs, seeking for clarification was dismissed by the court below, they managed to get status quo ante, even prior to 21.12.2007 and that the adverse order has been granted by the court below in the application filed by the revision petitioner / second defendant. The filing of the present suit itself is of suppressing the material facts of various suits relating to the second defendant, Diocese of Tirunelveli (CSI), represented by its Bishop, pending at Tirunelveli. When they could not get interim order in Tirunelveli Courts, they got the impugned orders, by adopting a method of forum shopping, that is not permissible under law and which leads to miscarriage of justice. The learned Senior Counsel further contended that the plaintiffs cannot take a totally different inconsistent plea in a suit and the same is a deliberate act of suppression of material facts, non-joinder of necessary parties, in spite of specific allegations raised against the revision petitioners, hence, which would go to show that fraud has been played on the part of the court below in obtaining the impugned orders.
37. It is seen that the plaintiffs themselves have filed a document, copy of the letter, addressed to Revenue Divisional Officer, Tirunelveli, dated 31.12.2007 before the court below, wherein Mr.A.D.J.C.Thinakar, respondent number 48 in C.R.P (PD) Nos.2527 to 2529 of 2008, describing himself as Lay Secretary, has stated that there was no proper election conducted for the second defendant Diocese and hence, previously elected office bearers be permitted to continue the administration. It is a document marked only by the respondents / plaintiffs before the court below, wherein one of the plaintiffs has specifically stated in the written representation that no election was conducted and that the respondents / plaintiffs be permitted to continue as past office bearers of the Diocese, but totally contrary to the statement, dated 31.12.2007 in the plaint cause of action is alleged by the respondents / plaintiffs that they were all duly elected office bearers, as per election conducted on the specified dates and holding the office and based on which, sought for declaration and permanent injunction. Further, as per the order passed by this Court, by Hon'ble Mr.Justice M.CHOCKALINGAM, in W.P.(MD) No.4912 of 2008 and M.P.No.1 of 2008, dated 04.06.2008, it has been held as follows :
"According to the learned counsel for the petitioner that the elections are over and new office bearers have actually taken charge in the Association. But, on the contrary, according to the learned counsel for the third respondent, that there was no election at all and the old office bearers are continuing in the Association and hence, it is not proper for the petitioner to state that either election was over or new office bearers took charge of the Association. "
As per this order, the learned counsel appearing for one of the plaintiffs, namely A.D.J.C.Thinakar, third respondent therein had stated that there was no election conducted and that the old office bearers are continuing. This is also totally a self-contrary view against the alleged cause of action and other averments of the plaint and also against the prayer sought for in the suit. In the aforesaid circumstances, the document produced by the respondents / plaintiffs, showing a list of elected persons can no way be accepted as a genuine document to decide the Interlocutory Application in favour of the respondents / plaintiffs. The aforesaid averments by one of the plaintiff to the Revenue Divisional Officer, Tirunelveli and the representation made by his counsel in the writ petition would show that the cause of action alleged in the plaint is incorrect and false and which is binding on all the plaintiffs.
38. As per the order, dated 30.04.2008 passed in Interlocutory Application in I.A.No.6990 of 2008, the court below has directed to maintain status quo. But in the petition filed by the revision petitioner in I.A.No.9666 of 2008, by order dated 21.07.2008, the court below has granted status quo ante prior to 21.12.2007. There was no such prayer sought for by the said revision petitioner herein. Strangely, the court below has granted such a relief in favour of the respondents / plaintiffs, without any basis. In the written representation submitted by one of the plaintiffs, namely A.D.J.C.Thinakar, one of the plaintiffs on behalf of others, had asked the Revenue Divisional Officer, Tirunelveli to recognise them to continue and hold the office, as previously elected office bearers on the ground that there was no proper election conducted for the Diocese. However, totally contradictory to the representation, the plaintiffs have filed the present suit with a different cause of action, stating that they are all duly elected office bearers, holding their respective posts and as such, sought for declaration and injunction in their favour against the Diocese of Tirunelveli, the second defendant in the suit. The Court below unfortunately has granted the said relief, by directing the parties to maintain status quo ante, prior to 21.12.2007, that was actually claimed by the respondent number 48 herein, in his representation made before the Revenue Divisional Officer, Tirunelveli, though there was totally a contradictory averments in the plaint. Therefore, this Court is of the view that the impugned order passed in I.A.No.9666 of 2008 on 21.07.2008 by the court below is against law and facts, which leads to miscarriage of justice.
39. In the impugned order, dated 21.07.2008, passed in I.A.No.9666 of 2008 at page number 282, the court below has stated as follows :
"First of all order of injunction has not been passed in the above petition. Therefore, Order XXXIX Rule 1 and 2 or Rule 4 CPC does not arise in this case."When the order of status quo is not passed under Order XXXIX Rule 4 CPC, it cannot be construed as an appealable order as per Order XLIII Rule 1(r) CPC and therefore, it is clear that only revision will lie before this Court. As contended by the learned counsel appearing for the revision petitioners, I am of the view that there are circumstances leading to the inference of fraud being played on the court below in obtaining the order, since 1) there is a clear suppression of material facts, 2) non-joinder of necessary parties, 3) raising deliberately a plea, totally self-contradictory to their own representation, for the cause of action to file the suit and seeking the relief and 4) adopting forum shopping. Therefore, I am of the view that it is a fit case to invoke Article 227 of the Constitution of India in the light of various decisions rendered by the Hon'ble Apex Court and this Court.
40. At this juncture, it is relevant to state that one of the eminent Judges of this Chartered High Court, His Lordship Mr.M.SRINIVASAN, J, in the decision, Annapoorni vs. Janaki, reported in 1995-1-LW 141, has ruled that when this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. Having exercised the suo moto power under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India, the eminent Judge, who is well known Judge for his legal acumen has ruled that there is no period of limitation for invoking the power under Section 115 CPC and Article 227 of the Constitution, since the petitioner therein, mother of the deceased was deprived of her legitimate right under the Hindu Law of Succession by the impugned order therein and accordingly, set right the injustice caused to the affected person and rendered justice.
41. It has been categorically ruled by the Hon'ble Apex Court that the power under Articles 226 and 227 is a basic structure of the Constitution, which cannot be curtailed, even by way of any Constitutional amendment, as that of Article 32 of the Constitution available to the Apex Court, however, it can be sparingly used, when there is no alternative remedy available, in order to prevent miscarriage of justice.
42. So far as C.R.P (PD) No.2527 of 2008 is concerned, as contended by Mr.T.V.Ramanujam, learned Senior Counsel appearing for the respondent / plaintiff, I am of the view that Order VII Rule 10 CPC is not applicable, since that is available only to the plaintiffs and the Court. Order VII Rule 10 CPC reads as follows :
"Return of Plaint : Subject to the provisions of Rule 10a, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted."
It is clear that if the suit has been filed without jurisdiction, the Court can suo moto pass appropriate orders to return the plaint to be presented in the appropriate Court having jurisdiction. Similarly, the plaintiff can also request the court to return the plaint for want of jurisdiction to be presented in the court having jurisdiction, which is not available to a defendant in the suit. Defendant can only raise his plea to try the maintainability and jurisdiction as preliminary issue and not for return of the plaint, under Order VII Rule 10 CPC, therefore, I am of the view that there is no error in the impugned order, dated 30.04.2008 passed in I.A.No.7857 of 2008 in O.S.No.2898 of 2008 in dismissing the said Interlocutory Application. Hence, the revision preferred under Article 227 of the Constitution in C.R.P (PD) No.2527 of 2008, challenging the said order is liable to be dismissed, accordingly, the same is dismissed.
43. C.R.P (PD) No.2528 of 2008 has been passed against the order, dated 21.07.2008 made in I.A.No.7860 of 2008 in O.S.No.2898 of 2008 to receive additional documents. As per the Code of Civil Procedure, the parties to the Interlocutory Application can seek an order to receive additional documents to be marked in the Interlocutory Application. No doubt, deciding the admissibility of the document and the evidenciary value of the document could be decided only by the Court and therefore, I am of the view that there is no error in the order passed in I.A.No. 7850 of 2008, allowing the Interlocutory Application to receive additional documents filed by the respondents / plaintiffs and therefore, C.R.P (PD) No.2528 of 2008 filed under Article 227 of the Constitution of India against the aforesaid impugned order is liable to be dismissed and accordingly, the same is dismissed.
44. C.R.P (PD) Nos.2529 of 2008 and 2601 of 2008 have been filed by the revision petitioners challenging the order of status quo, dated 30.04.2008 made in I.A.No.6990 of 2008 and C.R.P (PD) No.2602 of 2008 has been filed against the order of status quo ante to be maintained prior to 21.12.2007 made in I.A.No.9666 of 2008. Though the court below allowed the I.A.No.9666 of 2008, it has improperly varied the order, subsequently, by granting status quo ante, prior to 21.12.2007, without any basis.
45. There is deliberate suppression of material facts by the respondents / plaintiffs, apart from forum shopping and a total contradictory plea for the alleged cause of action to file the suit, which leads to the inference of fraud being played on the court below by the respondents / plaintiffs. The impugned orders have been passed against the revision petitioners in C.R.P.Nos.2601 and 2602 of 2008, though specific allegations were raised against them by the respondent / plaintiffs in the plaint, but, without impleading them as necessary parties, behind their back, hence, the order is affected by non-joinder of necessary parties. There are materials available to show forum shopping. In the light of the decisions referred to above, I am of the view that the aforesaid impugned orders passed by the court below in I.A.No.6990 of 2008 and I.A.No.9666 of 2008 are expacie illegal and without jurisdiction and fraud has been played on the part of the court below and therefore the affected parties can maintain the revision petition by invoking Article 227 of the Constitution of India, which is not legally precluded on the facts and circumstances of this case. Therefore, the revision petitions in C.R.P (PD) Nos.2529, 2601 and 2602 of 2008 are allowed and the impugned order, dated 30.04.2008 passed in I.A.No.6990 of 2008 granting status quo as on 30.04.2008 and subsequent order, dated 21.07.2008 passed in I.A.No.9666 of 2008 granting status quo ante on the date prior to 21.12.2007 are set aside. I am of the considered view that Chapter IV Rule 3 of the Constitution of Diocese of Tirunelveli is not applicable on the facts and circumstances, directing the parties to maintain status quo, prior to 21.12.2007.
46. With the above observations, C.R.P (PD) Nos.2527 and 2528 of 2008 are dismissed and C.R.P (PD) Nos.2529, 2601 and 2602 of 2008 are allowed. The trial court is directed to dispose the suit according to law on merits, within six months from the date of receipt of the copy of this order, without considering the findings of this Court in the revisions.
47. The Diocese of Tirunelveli is admittedly running various schools, colleges and hospitals. Hence, the functioning of the aforesaid public institutions should not suffer and the same must be administered, without causing any inconvenience to the students, teachers, other staff members and the public. Therefore, this Court is duty bound to pass suitable orders, in order to administer the public institutions, pending disposal of the suit.
48. The Hon'ble Apex Court in the decision, Ram Chandra Singh vs. Savitri Devi and others, reported in 2004-2-LW 70, has held as follows :
"A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false."
Therefore, raising cause of action in the plaint totally against the representation made to the Revenue Divisional Officer for the purpose of getting a favourable order is construed as fraud played on the Court.
49. The person who comes to Court, must come with clean hands for seeking any relief. But, the respondents / plaintiffs have suppressed the material facts, adopted method of forum shopping and have played fraud on the court below, apart from non-joinder of necessary parties in the suit. Playing fraud on the court is highly condemnable, since the same is against administration of justice. As there is substantial materials available on record to show that the respondents / plaintiffs have played fraud on the court below and obtained the order of status quo ante, they cannot be permitted to administer the institutions, pending disposal of the suit.
50. The revision petitioners in C.R.P (PD) Nos.2527 to 2529 of 2008, the Diocese of Tirunelveli (CSI) is admittedly headed by its Bishop at Tirunelveli and he is the Chief Election Officer, as per Chapter X of the Constitution of Diocese of Tirunelveli. As such, he has produced a certified copy of the minutes maintained by the Diocese of Tirunelveli (CSI), wherein the names of office bearers elected have been stated. It is seen that the revision petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008 are also stated as elected office bearers of the Diocese in the said document. Though the same cannot be taken as gospel truth by this Court, I am of the view that Ex.R.1 cannot be construed as a fabricated document and there is no substantial materials to show that the second defendant has played any fraud on the court, hence, this Court is of the considered view to permit the Diocese of Tirunelveli, represented by its Bishop, the revision petitioner in C.R.P (PD) Nos.2527 to 2529 of 2008 to continue the administration with the office bearers, including the revision petitioners in C.R.P (PD) Nos.2601 and 2602 of 2008, holding their respective posts, as per Ex.R.1, till the disposal of the suit. Connected miscellaneous petitions are closed. No order as to costs.
51. While passing orders in these Civil Revision Petitions, this Court records its appreciation for the contribution made by eminent Senior Advocates of this Court, Mr.R.Krishnamurthy (Former Advocate-General), Mr.N.R.Chandran (Former Advocate-General), Mr.T.V.Ramanujam, Mr.R.Gandhi and Mr.T.R.Rajagopalan who appeared for both the parties, unearthed all the relevant facts, relating to the Civil Revision Petitions and guided this Court properly by enlightening the Court on the legal aspects involved in the revision petitions.
tsvn To The II Assistant Judge City Civil Court, Chennai
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