Rev. C Elia, Guntur Dist vs The Executive Council of The Aelchurch

Dr. B. Siva Sankara Rao, J.—The revision petitioner is no other than unsuccessful petitioner in I.A.No.327 of 2016 in S.O.P.No.2 of 2016 on the file of Vacation Civil Judge, Guntur and there was an ex party ad-interim injunction passed by the Vacation Civil Judge against the impugned notice dated 10.05.2016 issued by the respondents 1 and 2 of the main petition and pending disposal of the main petition where the reliefs sought for declaration that the issuance of said notice supra to the petitioner and other pastors of Central Guntur Synod (for short ''C.G.S'') is null and void and to grant consequential permanent prohibitory injunction restraining them and their men etc., not to interfere with the activities and discharging functions of the petitioner as administrative head of the C.G.S. and for costs. An ex parte ad-interim injunction supra granted by the Vacation Court, when the matter was transferred to the regular Court i.e., to the District Court concerned Dr.SSRB,J and made over re-numbered on the file of the

IV Additional District Judge, Guntur, pending as I.A.No.961 of 2016 (for I.A.No.327 of 2016) and in S.O.P.No.585 of 2016 (for S.O.P.No.2 of 2016). It is while so the ex parte ad-interim injunction was subject matter of impugning in C.R.P.No.2498 of 2016 filed by respondents 1 and 2 herein and this Court vide order dated 26.05.2016 before admission and notice, given disposal directing the lower Court to permit the revision petitioners supra of C.R.P.No.2498 of 2016 to file counter in I.A.No.961 of 2016 and participate for hearing and disposal of the main injunction application on merits. It was ultimately ended in dismissal by vacating an ex parte ad-interim injunction order on 26.07.2016. Same is subject matter of the present revision.

Heard both sides in several sittings and at length, as is reflected from the docket explosion of this Court time and again and perused entire material on record.

This Court is conscious of the limited scope of the revision in sitting against the interlocutory impugned order of the lower Court and as to how far it Dr.SSRB, J can interfere and if so with what observations. Needless to say, pending disposal of the main petition filed under Sections 23 and 35 of the Andhra Pradesh Societies Registration Act, 2001 (for short ''the Act''), even if there are no specific provisions in the Act from the settled expressions, the trial Court concerned can pass any interim orders to preserve the subject matter of the lis and the maintainability of the injunction applications before the trial Court on that count, no way in dispute but for on merits. The application was squarely within the scope of Order 39 Rules 1 and 2 and Section 151 of C.P.C. as the provisions equally apply to the area, where the Act provisions, rules and regulations are silent. The requirements to grant or refuse the injunction and declaration, pending disposal of the main petition not only governed by the provisions of the specific performance Sections 36 to 42 but also of Order 39 Rules 1 and 2 C.P.C. referred supra, require to show the existence of prima facie case, balance of convenience and irreparable injury, apart from the public interest, if one of the cardinals also to consider in weighing the scales as to where the Dr.SSRB, J balance of convenience lie. Prima facie case need not mean the ultimate chance of success but for something more than a bona fide contention, triable issue and balance of convenience to be weighed with reference to the same meaning in weighing the case of both sides of whom the balance weighs to grant the relief or to refuse, as the case may be, and irreparable injury need not always be estimated in terms of money, but any impact on the rights and sufferance itself is an irreparable injury or irreparable loss criteria. These three requirements and the criteria for consideration need not further require elaboration. The other considerations in exercise of the discretionary relief of grant or refusal by the injunction or declaration in the main matter vis-à-vis temporary injunction for consideration is equity of the persons must come to the court with clean hands and any suppression of material even disentitle. Needless to say, law is fairly settled also on this consideration that even all the three requirements of prima facie, balance of convenience and irreparable injury/loss even satisfy, Court may refuse to exercise the Dr.SSRB, J discretion in favour of the parties seeking the relief, if once shown did not approach the Court to get the equitable relief by clean hands.

From the above, coming back to the facts, the impugned notice dated 10.05.2016 issued by the 2nd respondent by name K.Frederic Paradesi Babu, Moderator Bishop (for short ''the 2nd respondent-moderator), indicates a direction to the pastors within the area of operation to furnish particulars that to reach him, being the in-charge of the Central Guntur Synod and Andhra Evangelical Luthern Church (for short ''A.E.L.C.'') President, of those Bishops who completed five years for transfer. It further speaks, but for him others have no right to transfer, including the revision petitioner by mentioning his name as Rev. Chintala Elia and that if anybody violates or transgresses, they are also being prone for action under criminal law. Said notice is impugned. Referring his power, the minutes of the Executive Council of the 1st respondent to the revision petition by name, the Executive Counsel of Andhra Evangelical Luthern Church, represented by the 2nd respondent as its Dr.SSRB,J moderator supra in L.C.M.No.474 dated 22.07.2015 reads particularly from clause No.5(g) of voting and authorization of the moderator supra as President of A.E.L.C. to assume charge as Synod Bishop/President of C.G.S till the matter is settled. No doubt, the eligibility pursuant to which is in dispute. But one thing is very clear that the pleadings show his eligibility to issue notice not in dispute, but the process, leave about any such dispute even is left open for adjudication in the main matter. It is needless to repeat, under that assumed proceeding of eligibility to take up the transfers, the impugned notice was issued and same is subject matter of challenge in the main petition.

Before coming to the impugned order of the lower Court insofar as ex parte ad-interim injunction, some facts are required of the connected litigation which haves its impact on the present lis. C.R.P.No.4193 of 2015 between one Rev.Y.Adamu as petitioner in S.O.P.No.394 of 2015 on the file of Principal District Judge, Guntur and the revision respondents 1 and 2 herein as revision petitioners Dr.SSRB,J therein was also in relation to it in saying particularly page nos.6 to 8 it was observed by this Court that once there is an election for a tenure (there it was two years from 2015 to 2017), it is premature to hold that Executive Council will not ratify the action taken in the Annual Convention and it is a matter relating to internal working of A.E.L.C. and Synod and it was premature without there being a decision of Executive Council. Unless the Executive Council takes a decision it cannot be said that the respondents can be allowed to function as Vice-President of the C.G.S. It is a cardinal principle of law that the interim order cannot travel beyond the main relief sought for in the main petition. There, it is further observed that the respondents accepted the authority of the Executive Council to act according to law and hence the Executive Council shall not be disabled from acting in accordance with law.

It is only to say once there was an election duly conducted, the status of the elected members shall continue for the tenure. No doubt, the Bye-laws particularly from Article 7(15) and sub-sections 4, 8 Dr.SSRB,J and 8(c), deal with the special powers and functions of the Executive Council relating to exercise of right of review and approval of the elected members to hold office and function by the Executive Council. The Bye-laws no way speak specific direction required of rejection. Needless to say, once approval is required, it has to be approved or rejected for no any other alternative. Thereby it impliedly inheres, if at all to reject, so to reject, if not chosen to approve. Unless it is rejected, the question of conducting a fresh election in fact does not arise. If it is not approved, the mere functioning is postponing, but not the status of the duly elected for their tenure, unless the election is duly declared as not properly conducted or illegal,s as the case may be.

Once such is the case, in this case on hand, one Rev. T. Santarao filed S.O.P.No.458 of 2015 against the revision petitioner, revision respondents 1 and 2 and three others, to declare the election of the revision petitioner as President is null and void. Ultimately it was withdrawn, undisputedly. In the mean time, there was an interim order and the matter Dr.SSRB,J went upto revision and in I.A.No.2031 of 2015, there was an observation granting injunction in favour of the revision petitioner herein as elected President of 78th Annual Convention for C.G.S. held on 13.04.2015 and till enquiry into the main petition and final decision since democratically elected, the injunction can be granted. The injunction relief sought therein by the petitioner as 5th respondent therein was to restrain the respondents i.e., main petitioner and other respondents and their men from disturbing or interfering with the business. No more is required to discuss but for in the main revision C.R.P.No.5778 of 2015 vide order dated 05.02.2016, there was a status quo order which reads "pending further orders, status quo as on today shall be maintained in all respects. It shall necessarily mean that if respondent No.1 is not permitted by respondent No.2 to take charge as President of the Central Guntur Synod, he shall not be entitled to function as such, pending further orders". There, the status is held in subsistence, but not entitled to function unless there is an approval and Dr.SSRB,J assuming of the office. It is there from also clear of status to continue.

In fact, the minutes of the Executive Council covered by L.C.M.472 dated 30.04.2015 internal page No.9 clause (i)(e) of the Central Guntur Synod, there is a mention about "in view of the facts, noted not to approve the report of the Central Guntur Synod and keep it in abeyance". It is made clear there from of petitioner''s status as elected President was not rejected nor approved to function but for kept in abeyance. Though as referred supra the bye-laws no way specifically speaks rejection but for approval if any, the bye-laws is also silent as to if not approved within any statutory period there is an automatic cessation of the status of the elected members. Thus, by kept in abeyance there is no cessation of status but for to say till approval, not entitled to hold office.

Leave it as it is, the crux herein to decide is from the impugned order of the lower court what is the age of the revision petitioner. Whether he is within 60 years as on the date of alleged election from 01.06.2015 to 31.05.2020 or he crossed 60 years and Dr.SSRB,J thereby prima facie in-eligible even to apply and contest, leave about to consider as duly elected for approval. The so called keeping in abeyance of the approval is mainly there from undisputedly and not for any other reason. Once such is the case, no doubt the revision respondents 1 and 2 are mainly relying upon own declaration and S.S.C. age proof of the petitioner. But the lower Court even by saying documents filed are Xerox copies and there from not chosen to exhibit, however for reasons unknown relied by discussed at length of the contents.

No doubt, in an interlocutory application exhibiting the documents does not arise, but for sake of reference in deciding as to existence of the prerequisites of prima facie case, balance of convenience, irreparable injury and any suppression of material facts which disentitles in equity to get the relief, even if other conditions are satisfied. Unless the documents are exhibited even for reference sake, the question of discussing any of the same does not arise, and that too, when it is the subject matter of the main lis, there is a rider for deciding the same in Dr.SSRB,J the temporary injunction application, in saying Court shall not and need not consider the ultimate chance of success but for existence of prima facie case, balance of convenience, and irreparable injury if any from the material available on record i.e., from the pleadings, affidavits contents, if any, subject to counter affidavits in disputing with any objection therein and any requirement of compliance of Order XIX Rules 1 and 2 C.P.C. and any documents placed reliance exhibited for the sake of reference to discuss.

Here, once the documents are if duly proved, it can be said there from that he completed 60 years and prima facie not eligible. The originals are sought to be exhibited and at least certified copies of public documents, within the meaning of Sections 74 to 77 of the Evidence Act before the lower Court with proof of contents and adducing of any further oral and documentary evidence with reference to it in deciding the same, which is subject matter of the main lis, as a fact finding required to arrive and there from only to come to any conclusion of any suppression of material Dr.SSRB,J facts and dis entitled if any to equitable relief of the prohibitory injunction sought for.

Thus, it is premature for the lower Court from that material, without exhibiting the Xerox copies of the so called documents in giving a finding touching the main lis. However, the fact remains, prima facie from the material there is no prima facie case in favour of the petitioner to stall the so called approval proceedings taken up under the impugned notice, that too, when there is a prima facie eligibility for the 2nd respondent to take up,s but for to say the right of the petitioner to assume office and function arises only after approval and there is no approval even though his status continues without right of functioning, he cannot prevent the other functionary, unless shown the other functionary has no locus prima facie. That is not the case here. The fact remains thus that there must be an approval or rejection, at least within a reasonable period, instead of keeping the status in abeyance at unilateral choice of approving authorities. Dr.SSRB, J

In fact, the petitioner herein made an attempt in maintaining a claim to direct the respondents to approve his elected candidature for functioning and rightly or wrongly, without even permission of the Court, the same was withdrawn and thus there is a bar to seek fresh relief again by virtue of Order 23, Rule 1 C.P.C. undisputedly.

No doubt, it appears there is a Writ Petition pending regarding the so called age claim of the petitioner of born in the year, 1958 and not in the year, 1953, which is thus a subject matter of dispute impugning the so called certificate issued by the Revenue Divisional Officer of his birth in the year, 1958 and not in 1953 and the so called subsequent cancellation, on the other side applied for the same. Any how, that Writ Petition is not a bar for the lower Court to determine in giving a fact from evidence on full dressed trial finding regarding the age same is now clarified that unless there is any order of stay for such determination granted in the Writ Petition, from its mere pendency the lower court need not wait. It is made clear that if the Writ Petition mean time Dr.SSRB,J disposed of determining the correct age, as to whether the petitioner crossed 60 years or not in determining the eligibility if at all that is the matter for consideration by the trial Court in deciding the lis. Needless to say equally as per the bye-laws to follow regarding approval.

Having regard to the above, the observations made by the lower Court in the impugned order are liable to be set aside. However, to avoid further giving of life to the litigation, this Court feels while sitting in revision against the impugned order, from the petitioner do not having prima facie case, balance of convenience and likelihood of suffering irreparable injury, from the impugned approval proceedings are being taken up, but once the respondents cannot keep pending the approval for period unlimited by so mentioning as kept in abeyance for the entire tenure of the status of the elected members, they shall decide either to approve or to reject if at all required so to do from material and it is subject to that the lower court is directed to dispose of the main S.O.P. in determining the lis by taking up the trial on day to day Dr.SSRB,J basis within one month from the date of receipt of a copy of this order. In the mean time, the respondents can take up the process of approvals covered by the impugned notice. Needless to say, any further steps of implementation shall not be given effect till such disposal as anything is subject of the result of the main petition to be disposed of within one month from the date of receipt of a copy of this order. As the very order in I.A.No.2031 of 2015 in S.O.P.No.458 of 2015 between inter parties at para-10 speaks the contest of respondents 1 and 2 of the present revision of the election of the petitioner must be ratified and approved by them; it is thereby directed to determine with reference to the bye-laws such approval or such rejection required if any. It is made clear that there is no further stay in force in this subject matter of S.O.P.No.585 of 2016 pending before the lower Court, so that it can proceed with trial. Any interim order passed by this court earlier is confined only to the above and in other respects there is no stay. Dr.SSRB,J

Accordingly, this Civil Revision Petition is disposed of with the above observations to obey. No order as to costs.

Consequently, miscellaneous petitions pending, if any, shall stand dismissed.