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Judgment
S. S. Subramani, J.—Defendants 1, 2 and 4 to 9 in O.S.No. 208 of 1999, on the file of III Additional City Civil Court, Madras, are the
revision petitioners.
The revision is filed under Article 227 of the Constitution of India. Petitioners are aggrieved by the order passed by the lower court in a suit filed
by first respondent herein.
The suit is one for declaration and injunction against the defendants, challenging the Resolution of the Synod Executive Committee, asking the
Bishop to go on leave. The Bishop is the 2nd respondent in this revision and third defendant in the suit. It is the case of plaintiff that the Church of
South India (for short, ''C.S.I.'') is a union of various protestant churches in South India brought about in the year 1947. The C.S.I, as a
Constitution by name Synod Constitution, to ensure decentralisation of administration, the Church is divided into separate districts each district
known as Diocese. There are 21 dioceses in C.S.I. The present suit is in respect of the Diocese of Vellore. The apex body, i.e., the Synod is
conducted in accordance with the Constitution, and they have got supervisory control over the various Dioceses. Several litigations were filed
against the Bishop of Vellore Diocese, alleging mismanagement and there were also various personal allegations against him. Suits were filed in
various places. At that time, the Synod intervened and found that there is some prima facie case to be considered and a resolution was passed
directing the Bishop to go on leave for a period of six months. It is that resolution that is challenged in the present suit.
Along with the suit, an interim application was moved by plaintiff. The prayer in the application was to pass an order of temporary injunction
restraining respondents 4 to 9 from enforcing the resolution dated 4.11.1998, 5.11.1998 and 6.11.1998 relating to the Vellore Diocese which says
that the Bishop shall go on leave for a period of six months, and in any manner interfering with the functioning and administration of the Vellore
Bishop on the strength of the above Resolution, pending disposal of the suit an ad-interim to the same effect till the disposal of the interlocutory
application.
The lower court passed the following order on 12.1.1999:
Heard Counsel. Documents perused. Prima facie case made out. Ad-interim injunction and notice 17.2.1999.
The same is challenged in this revision petition.
Since the caveator (1st respondent) has entered appearance, the entire revision was heard.
On behalf of the Bishop, who is second respondent herein, a counter-affidavit has been filed.
Learned Senior Counsel for petitioner submitted that this is a typical case of abuse of process, and that the present suit has been filed
suppressing material facts. Learned Senior Counsel submitted that on 8.5.1997 proceedings were issued by the Moderator appointing the Deputy
Moderator as a Commissary of Vellore Diocese and compelling the Bishop to go on leave pursuant to the resolution of the Executive Committee.
Proceedings were initiated by Synod, namely, the apex body. Two persons filed a suit, viz., C.S.No. 309 of 1997 challenging the said proceedings
and obtained interim orders. Therefore, the resolution passed by the executive committee was not implemented. That interlocutory application was
ultimately dismissed on 1.10.1997. Consequent to the dismissal of the I.A., the Deputy Moderator took charge as Commissary of the Moderator,
replacing the Bishop. Against the order of learned single Judge, O.S.A.Nos. 331 to 335 of 1997 were filed. The Division Bench confirmed the
Order. Thereafter, proceedings were initiated in regard to allegations of misappropriation in Good Shepherd School, Chittoor in Vellore Diocese.
Enquiry revealed that there was gross violation in sale of land belonging to the Diocese and the Bishop has misused his power and has gained
pecuniary advantage. To consider the Enquiry Report, Enquiry Committee meeting was proposed to be held on 23.9.1998. At that time, persons
associated with the Bishop filed C.S.No. 734 of 1998 seeking to prevent the meeting. No interim order was granted by this Court. Meeting was
permitted to go on. But the meeting could not be held due to Bandh. Thereafter, meeting was held and resolution was passed that the Bishop
should go on leave for six months. Challenging the same, the Bishop himself filed C.S.No. 852 of 1998 challenging the proceedings of Executive
Committee dated 6.11.1998. In that suit, I.A.No. 611 of 1998 was filed for injunction to restrain the implementation of the resolution. No interim
order was granted.
The present suit is by one J.S. Kingsley for the very same relief, before the City Civil Court, and also for an interim injunction against enforcing
the resolution dated 6.11.1998. He has obtained an ex parte order of injunction also. In the meanwhile, on the basis of the resolution of the
Executive Committee, the Senior Presbyter has taken charge of the Office. In the present suit, when interim order was obtained, the Bishop wrote
letters on 18.1.1999 informing the Executive Committee Members that he has every right to discharge his duties as a Bishop. On 5.2.1999, the
Bishop withdrew the suit without leave to file fresh proceedings on the same cause of action. According to learned Senior Counsel, the narration of
facts will show that the present suit has been instituted only at the instance of the Bishop, namely, Bhaskaran, second respondent herein, and first
respondent (plaintiff) is only a puppet plaintiff. Learned Senior Counsel submitted that such actions should be summarily rejected. According to
him, the precious time of Courts should not be allowed to be wasted by entertaining such frivolous suits or suits which are filed for collateral
purposes. It was also argued by learned Senior Counsel that the impugned Order does not satisfy the statutory requirements of Order 39, Rules 1
and 3, C.P.C.
Learned Senior Counsel for first respondent also submitted that the impugned order does not satisfy the statutory requirements and, therefore,
he prayed that the lower court may be directed to pass final orders within a time-schedule.
For the procedure suggested by learned Senior Counsel for the first respondent, learned Senior Counsel for revision petitioners was not
amenable since according to him, the action being an abuse of process, the plaint itself must be struck off by this Court.
Counter affidavit has been filed by second respondent herein, admitting that he filed C.S.No. 852 of 1998 and that the same was subsequently
withdrawn. Of course, he has given an explanation why he withdrew that suit.
After having heard learned Senior Counsel on both sides, and also learned Counsel appearing for 2nd respondent, I feel that this is a case
where the plaint should be struck off the file. The respondent for coming to such a conclusion is, the present plaintiff, first respondent herein, is only
a benami for the Bishop (2nd respondent). A copy of affidavit and summons in C.S.No. 852 of 1998 is among the typed set of papers. From a
reading of that affidavit, it is clear that the suit filed by the second respondent was for the same purpose. Relief sought for therein was to restrain
the respondents, namely, petitioners herein, from implementing the resolution, namely, ''the Bishop shall be asked to go on leave voluntarily for a
minimum period of six months with immediate effect prior to his retirement, failing which he shall be asked to take compulsory leave for 6 months
with immediate effect, failing which the Moderator shall take action as per the Constitution.'' This decision should be implemented by the
Moderator with immediate effect.'' It was this resolution that was under attack in that suit filed by 2nd respondent. The various grounds taken in the
affidavit could be seen in the present plaint also. No interim Order was granted.
First respondent has filed the present suit C.S.No. 208 of 1999 for the very same relief. Immediately after getting the order of injunction which
I have extracted in the earlier portion of this order, 2nd respondent has written to the Presbyters and others on 18.1.1999 that in view of the
injunction order obtained in O.S.No. 209 of 1999, he is entitled to continue in office. The picture is very clear. The circumstances show that the
present suit is filed only at the instance of the second respondent (Bishop), similar to the one filed by him as C.S.No. 852 of 1998. The cause of
action is also the same.
While narrating the facts, I have also said that on an earlier occasion also, when an order was passed against the Bishop, suits were filed and
interim orders were obtained and they were subsequently vacated. Though the matter was taken in appeal, the same was also dismissed. Again,
another suit was filed as C.S.No. 734 of 1998 in the names of some others. But they were not successful in getting injunction. So, from the facts, it
is clear that it is not the first time that the second respondent (Bishop) has filed a suit benami in the names of others. Such conduct on the part of
the second respondent has to be taken serious note of.
A question may arise whether filing of suit by different persons is really an abuse of process and vexatious. What is meant by ''abuse of
process'' came for consideration before the Honourable Supreme Court in K.K. Modi Vs. K.N. Modi and Others, . In that judgment, their
Lordships held that ''a proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts
amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court,
especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the
time of the public and the court from being wasted. In paragraph 43, their Lordships have quoted from ''The Supreme Court Practice 1995
published by Sweet & Maxwell in paragraph 18/19/33 (p.344) the explanation for the phrase ""abuse of the process of the court"". Relevant portion
reads thus:
...The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of
vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are
not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be
very material.
What is meant by ''abuse of process'' was considered by a Division Bench of the Kerala High Court in the decision reported in P.C. Jose v.
T.K. Madhu (1994) 1 K.L.J. 730. In paragraph 21 of the judgment, learned Judges have held thus:
As to what is ''abuse of process'' has been laid down, to a considerable extent, in decided cases and also in the Australian case, Williams v.
Spautz, referred to above. We are adopting the reasoning in that except in so far as it deals with criminal cases. It is neither possible nor desirable
to give any exhaustive definition of what is meant by ''abuse of process''. The filing of the case must itself be oppressive. It must have been for a
collateral purpose which is other than what the case is to ultimately deliver according to the legitimate judicial processes. The improper purpose
need not be the sole purpose. It is sufficient if it is the predominant purpose of the action. It is not essential that there must be an improper act as
well as an improper purpose. Cases which can be dealt with u/s 482, Crl.P.C. according to principles laid down by the Supreme Court, can be
dealt with u/s 482, Crl.P.C. proceedings and therefore such cases need not be dealt with as per Williams v. Spautz. It is equally important, as
stated earlier, that freedom of access to courts is preserved. There is, no doubt risk of the inherent power of stay itself being abused but ""that risk
and the other policy considerations... are not so substantial as to outweigh counterveiling policy considerations and deter the courts from exercising
the jurisdiction in appropriate circumstances"" In the context of the power of permanent stay, other objections arising from the availability of other
remedies in the form of contempt, and the tort of collateral abuses of process, have not prevailed.
To consider the vexatious nature, or whether it is an abuse of process, the litigation need not be in the name of the same person, nor should it
be filed against the same person, nor it should be on the basis of the same cause of action. It was so held in the decision reported in Advocate
General v. T.A. Rajendran 1988 K.L.T. 305 , a Division Bench of the Kerala High Court has held thus:
...The learned single Judge has observed that the action brought by the respondent cannot be treated as vexatious as he has not concentrated on
one individual or one cause of action in his litigation. Though an inference that the litigation is vexatious may be drawn more readily when
concentration is on the same person or on the same cause of action, it cannot be said as an invariable rule that litigation cannot be regarded as
vexatious merely because he has chosen different persons and different causes of action. The essential question for consideration is as to whether
the party is habitually bringing actions which are thoroughly unfounded, not with a view to vindicate justice but for the purpose of harassing the
opponent....
This principle was accepted in P.C. Jose''s case.
In an early decision of the Calcutta High Court reported in Sri Mahadeb Jiew and Another Vs. Dr. B.B. Sen, , in paragraph 24, it has been
held thus:
...It is quite possible that where the court is satisfied that the real plaintiff is not before the court and some puppet is put forward, then that is an
occasion for exercising the inherent jurisdiction of the court to ""prevent abuse of the process of the court"" within the meaning of Section 151 of the
Code. The decision in Hari Nath Singh v. Ramkumar Bagghi, 18 C.W.N. 119 makes the following observations at pp. 120-21:
The order now before us was not made and cannot be supported under Order 25, but the question is whether the court has inherent power to
make it. That the court some such power seems to be certain. So, in Ram Coomar Kandeo v. Chunder Canto Mukherjee, Sir Montague Smith in
delivering a judgment of the Privy Council says: ''It is ordinary practice, if the plaintiff is suing for another, to require security for costs, and to stay
proceedings until it is given.
Further down at p.121 of the judgment the following observations appear:
They no doubt however can be taken as a correct indication of the existing law and were so treated by Trevelyan, J. in Khajah Assenoolajoo v.
Solomon 14 Cal. 533, who after referring to that decision holds that the court has power to require security for costs if it finds that the plaintiff is
not the real litigant, but that he is only a puppet in the hands of others....
[Italics supplied]
In the instant case; once the court is satisfied that the real plaintiff is the second respondent, and when he failed to get an interim Order in the
suit filed by him, he has instigated the first respondent herein to file the present suit, such suit cannot be allowed to be kept pending, such persons
should not be allowed to prosecute the same. The action is not bona fide.
In Ranipet Municipality Commissioner v. M. Shamsheerkhan (1997) 2 L.W. 761, I have held that the court is duty bound to prevent such
actions from being continued, and when miscarriage of justice is evident, the same should be rectified the moment it comes to the notice of the
court. Both u/s 151 of the CPC and also under Article 227 of the Constitution of India, this Court has got that power.
In a very recent judgment of the Calcutta High Court reported in Amzad Ali v. Marfat Ali Biswas and two Ors. (1998) 2 C.L.T. 462, a
learned Judge of that High Court has considered the question of power under Article 227 of the Constitution of India, has said thus:
...It is settled law that the power under Article 227 of the Constitution involves a duty of the part of the High Court to keep all courts within the
bounds of their authorities and to see that they do what their duty requires. This power under Article 227 can also be exercised by the High Court
suo motu and is not governed by any technical rules as applicable in cases of exercise of power under Article 226. It has been further held in
paragraph 44 thus:
It is also settled law that the powers of the High Court under Article 227 cannot be taken away or barred by any legislation short of constitutional
amendment nor can it be barred by providing that the decision of an inferior tribunal shall be final....
Learned Judge has further said in paragraph 45 thus:
...When the High Court, finds that the inferior court, civil or criminal, has not acted according to the mandate of law resulting in gross abuse of the
process of the court, the extraordinary power of the High Court under Article 227 of the Constitution can always be exercised.
For the foregoing reasons and also in view of the settled legal position, I feel that this is a fit case where the plaint in O.S.No. 209 of 1999 is
liable to be struck off the file. Once I hold that the plaint is liable to be struck off, the question regarding the validity of the injunction order do not
arise. But that point was also argued by learned Senior Counsel for revision petitioners, that the interim order does not satisfy the legal
requirements. I find force in the said contention.
In the result, the civil revision petition is allowed with costs, payable by second respondent (Bishop). Counsel''s fee Rs. 3,000 (Rupees Three
thousand). O.S.No. 208 of 1999, on the file of the Third Additional City Civil Court, Madras, is stuck off the file. Connected C.M.P. is closed.