Thoothukudi Nazareth Diocese vs The Church of South India

M. Chockalingam, J.—This judgment shall govern these three appeals in OSA Nos. 357, 358 and 375 of 2008.

These appeals have arisen from a common order of the learned Single Judge of this Court made in O.A. Nos. 530 and 531 of 2008 in C.S.

No. 475/2008. OSA 375/2008 is brought forth by the defendants, while OSA Nos. 357 and 358/2008 are by the plaintiffs in the suit.

The plaintiffs filed the said two Original Applications for ad interim injunctions one restraining the defendants from in any manner interfering with

the internal administration and management of the affairs of the first plaintiff Diocese and the other restraining them from in any way preventing the

plaintiffs from exercising their right to take disciplinary action in any form, as contemplated under the Constitution of the Thoothukudi Nazareth

Diocese with the following averments:

The plaintiffs came to know that some of the Office Bearers of the first plaintiff Diocese misappropriated and mishandled the funds of the first

plaintiff diocese, and criminal complaints were filed by some of the office bearers, which are pending investigation. As per the report dated

13.10.2007, the High Power Commission consisting of ten members of the Diocese, unanimously found that some of the members have embezzled

the funds of the first plaintiff causing monetary loss to it. Hence, necessary proceedings were initiated against them in accordance with law. While

the matter stood thus, the defendants in order to help those erring members, called upon the plaintiffs to submit accounts to them for scrutiny and

also threatened them not to take any action as against the erring members.

The defendants contested the applications by filing a common counter stating that the suit filed under Order 1 Rule 8 of C.P.C., itself is not at all

maintainable; that both the first plaintiff and the first defendant are unregistered bodies; that under the circumstances, no interim order could be

made; that the Bishop of the Diocese shall have a general oversight of the financial administration of the Diocese, but shall not exercise control over

the finance; that the defendants received so many complaints as regards the administration of the first plaintiff Diocese; that the fact that so many

criminal complaints are pending would itself go to show that there is no peace in the first plaintiff Diocese; that in such circumstances, the

defendants have no other option than to require the Bishop, according to the Constitution of Church of South India, to produce the records; that

the Bishop and the Treasurer of the first plaintiff have acted as Chairman and Member of the High Power Commission respectively; that the

accounts for the period 2006-2007 were not approved by the Diocese even though it was audited; that without approval, the plaintiffs have

submitted accounts to the first defendant with an ulterior motive knowing the fact that the audited statements of accounts relating to all the Dioceses

coming under the Church of South India will have to be consolidated and submitted to the Finance Department; that the letter from the defendants

would simply require the plaintiffs to submit accounts and not to take hasty steps, and hence the applications were to be dismissed.

The learned Single Judge on enquiry, allowed both the applications apart from observing that the second defendant was empowered to direct

the first plaintiff to submit books of accounts for the financial years 2005-2006 and 2006-2007 for scrutiny. Hence these appeals by the respective

parties.

Advancing arguments on behalf of the appellants in OSA 375/2008, the learned Senior Counsel Mr. V. Prakash would submit that the first

plaintiff institution and the first defendant institution were unregistered bodies, and hence leave should have been obtained to sue or to be sued in

representative capacity; that the suit itself was not at all maintainable since no leave was obtained; that under the circumstances, no interim order

could be granted in a case where the suit is not properly instituted; that the Court was dealing only with the body which is a legal entity in the eye of

law; that the Court cannot deal with an unregistered body having no legal existence; that Tuticorin Nazareth Diocese, the first plaintiff, had no locus

standi to sue the Church of South India (CSI) which was also an unregistered body; that the learned Single Judge has not considered that it was

the right of the CSI to control the religious and financial affairs of the Diocese which are purely an internal matter of CSI, and hence the defendants

had every right to control and administer the first plaintiff Diocese; but, it has been erroneously held that the defendants cannot interfere with the

internal administration of the first plaintiff; that in fact, it was only an internal administration of the CSI; that the first plaintiff Diocese was only a limb

of CSI; that the right of administration which was conferred under the Constitution cannot be taken away by the filing of the suit before the Court;

that the Constitution of CSI was an agreement between its members; that it cannot be nullified by way of filing a suit; that no doubt, it is the right of

the Diocese to take action against the members if they have committed misappropriation or mismanagement, as per the constitution of the first

plaintiff Diocese; that the defendants had no grievance over the Diocese to take action against the erring members as per the principles of Jesus

Christ; and that at the same time, the appellants had every right to call for relevant and authenticated documents and also question the constituent

unit subordinate to it.

Added further the learned Senior Counsel that it is the right of the CSI to set right the illegal things done by the Diocese for committing a breach;

that they had no right to choose the jurisdiction of the civil Court and get shelter under the Court proceedings; that it is the duty of the Bishop who

is the shepherd of the diocese and who has to follow the Constitution, to approach the problem in a biblical way and not by way of filing criminal

complaints; that the appellants have not given any Power of Attorney to the respondents to deal with the accounts of CSI; that the plaintiffs cannot

act on behalf of CSI and deal with the money; that the second plaintiff was only the Bishop of CSI who has been elected, selected and

consecrated as per the Constitution of CSI; that all the matters relating to the property administration, purchase of lands, selling of lands,

investments and other financial administration, shall be done only through the Power of Attorney of CSI Association; that the Synod is the Supreme

legislative body of CSI and the final authority in all the matters pertaining to the Church; that he has power to make rules, pass resolutions and take

executive action as may be necessary from time to time for general management and good governance of the Church and of the property and the

affairs thereof; that the Synod shall deal with the matters of common interest to the whole CSI; that the Synod Executive Committee has power to

call for the particulars relating to the administration and financial management of the diocese from the Bishop whenever required; that if for any

reason the Bishop of the diocese is unable to furnish the particulars, the same may be called for from the Officers of the diocese, and such

information should be furnished; that the Synod had got power to determine the number and boundaries of the dioceses and form new dioceses in

the Church; and that it has also power to determine whether anything in the Constitution of any Diocesan Council is at variance with anything

contained in the Constitution of CSI and if it finds such variance, to rule that such part of such Diocesan Constitution was of no force.

It is further contended by the learned Senior Counsel that the Diocese should furnish through its Chairman to the Moderator and to the

Secretary of the Synod accurate records of all its resolutions and other proceedings; that the CSI Trust Association has its own Constitution to

deal with the properties of CSI Trust Association; that the learned Single Judge has failed to note that the Bishop of the Diocese shall have a

general oversight of the financial administration of the Diocese, but should not exercise any direct control over the finances; that every Bishop of the

diocese shall be ex-officio member of the CSI Synod; that the learned Single Judge had failed to note that that being the fact, the appellants have

got so many complaints against the administration of the first plaintiff diocese; that under the circumstances, the Moderator of Synod in consultation

with the office bearers of the Synod appointed a Commission to find out the reasons for the disturbance in the administration of diocese; that the

Commission has been formed only to know the seriousness of the allegations mentioned in the complaints received by him; that in the said suit, the

second plaintiff has filed an application for impleading himself as a party to the proceedings and filed a counter stating that he has no objection for

granting the relief as prayed for in the injunction applications; that moreover, in his counter, he has pleaded that the Bishop is an aggrieved person

by the order of appointment of Commission, and he proposed to file an application to transpose himself as a plaintiff in the suit; that the interim

application filed by Dr. Solomon in O.S. No. 6691 of 2007 has been disposed of by the Court on 5.12.2007 with an observation that temporary

injunction is granted to the respondents 1 to 3 namely CSI represented by its General Secretary, The Moderator-CSI and The Deputy

Moderator-CSI, from interfering with the functions of the Bishop in discharging his duties as a Head of Nazareth Diocese except in accordance

with the Constitution of CSI; and that in IA 17497/2007 in OS No. 6691/2007 the Court stayed further proceedings of the Commission

appointed by the Moderator till the disposal of the suit with a direction to proceed independently according to Rule 25 Chapter XI of the Church

of South India.

Added further the learned Senior Counsel that the learned Single Judge has not noted that the Bishop has constituted a High Power Commission

and the Bishop himself has become Chairman of the said Commission; that the Auditor, Bishop and Treasurer become the Members, and they

submitted a report on 13.10.2007 stating that the High Power Commission found that Rs. 3 crores has been misappropriated; that on 24.2.2007,

before publishing the High Power Commission''s report, being the Chairman of the High Power Commission, the Bishop sent a letter to the

Superintendent of Police stating that there was misappropriation of Rs. 40 lakhs; that on 7.3.2007, the Bishop gave a letter of clarification that Rs.

40 lakhs is in the fixed deposit of State Bank of India; that on 13.10.2007, as the Chairman of the High Power Commission, the Bishop stated that

Rs. 40 lakhs has been misappropriated; and that the audit report dated 25.3.2008, also confirms the same.

The learned Senior Counsel would add that the appellants are not in a position to know the things happening inside the diocese; that during that

period, the Bishop was functioning as Secretary of the diocese; that there are so many complaints which are placed before the appellants; that by

filing criminal complaints, the plaintiffs have created confusion in the accounts submitted by the apex body namely CSI, before the Government of

India for verification; that the entire attitude would create complication in the administration of the CSI; that the Bishop himself as an ex-officio

officer has instituted the suit against his own office with an ulterior motive to cover his misdeeds; and that the learned Single Judge has not adverted

to any one of these factual or legal positions, but has granted the injunction which has got to be vacated.

Advancing arguments on behalf of the appellants in OSA 357 and 358/2008, the learned Counsel Mr. S. Subbiah would submit that the

learned Single Judge has correctly held by upholding the rights of the appellants/plaintiffs available to them under the Constitution of CSI and bye

laws of Tuticorin Nazareth Diocese relating to their independence in handling the matter and taking up disciplinary proceedings against their

members, but has taken an erroneous view by sustaining the plea of the defendants that the second defendant was empowered to direct the first

plaintiff to submit the books of accounts for the financial years 2005-2006 and 2006-2007 for scrutiny; that the learned Single Judge should have

noticed that even assuming that the second defendant was empowered to do so, he has to satisfy the mandatory provisions contained under Rule

15 of Chapter IX of the Constitution of CSI; that it is also pertinent to note that the consideration under Sub Rule (b) of Rule 15 of the said CSI

Constitution was essentially a relevant factor even to call for any particulars, and when there was no such decision taken by the Synod

Executive/Working Committee/Officers of the Synod, as they were convinced of certain matters as envisaged therein, there should be a report

alone on such consideration as referred thereto; that the learned Single Judge has erroneously construed the provision contained under Sub Rule

(a) of Rule 15 of the said CSI Constitution as if they have got powers even to call for the books of accounts of the first plaintiff; and that the

learned Single Judge has overlooked the very provisions contained in Sub-rule (a) of Rule 15 of the CSI Constitution to the effect that any

contingency would arise only when the second plaintiff as Bishop of the diocese was unable to furnish particulars.

Added further the learned Counsel that the learned Single Judge has not noticed that it is not the case of the respondents that neither of the

appellants had failed to furnish the particulars as required by any of the defendants, and as such when the relevant feature or condition not having

been satisfied by the respondents, there was no question of even calling for any particulars or to direct the first plaintiff to produce the account

books for any financial year; that when the plaintiffs have already furnished the accounts as available in the books of accounts, there was no

question of calling for any further particulars thereon; that the defendants have not chosen to any remark on the accounts as available in the office

of the plaintiffs to suggest that there was any leave for the restoration of sound administration and financial management; that in the absence of any

report made to the Working Committee and such a report if any having not been communicated to the appellants, the invocation of the powers

under any of the provisions contained in Rule 15 of the CSI Constitution was totally illegal and arbitrary, and the same remained unnoticed by the

learned Single Judge; that the power to call for records could not be taken as one to include even to call for the books of accounts to the office of

the respondents; that indirectly it would rather amount to upholding the contentions of the respondents; that such a decision runs contrary to the

well considered findings of the learned Single Judge, and thus the findings are inconsistent to each other; that the learned Single Judge has rightly

held that the plaintiffs have the authority to take action independently without interference by the respondents/defendants against the erring officials

in the interest of their internal administration; that having found so, the learned Single Judge should not have held that the defendants can call for the

records; that the plaintiffs while filing the suit, rested its cause of action on the letter dated 25.3.2008, from the CSI and thus made out a prima

facie case for grant of injunction; that the learned Single Judge was also satisfied and has granted the interim injunction; that under the

circumstances, there was no need to vacate the injunction; that the mere glance of the letter dated 25.3.2008, would clearly suggest that the

defendants were only aiming to help those erring officials and to favour them as against the interest of the plaintiffs; that the learned Single Judge

should not have given any room to the respondents to over come the order of temporary injunction and other related findings to pass such an order

even by calling for the books of accounts to their office, and under the circumstances, that part of the order has got to be set aside, and the interim

injunction granted be sustained.

The Court considered the submissions made by either side and looked into the materials available.

As could be seen above, Tuticorin Nazareth Diocese and also the Bishop, Tuticorin Nazareth Diocese, as plaintiffs have filed the suit against

the CSI and its Moderator as defendants for a declaration that the letter dated 25.3.2008, by the defendants was illegal and without jurisdiction

and also for a permanent injunction restraining the defendants from interfering with the internal administration, management and affairs of the first

plaintiff diocese and also for other reliefs. At the time of filing the suit, two applications were filed for the interim reliefs. On entering appearance,

the defendants filed their counter. The learned Single Judge while granting the relief of interim injunction, also directed the plaintiffs to submit books

of accounts for the financial years 2005-2006 and 2006-2007 for scrutiny. Aggrieved over the grant of injunction, the defendants have brought

forth OSA No. 375 of 2008. Aggrieved over the other part of the direction for submission of accounts, the plaintiffs have brought forth the other

two appeals in OSA 357 and 358/2008.

Admittedly, the first defendant is the Church of South India (CSI) and the second defendant is its Moderator. The first plaintiff is Tuticorin

Nazareth Diocese. It is not in controversy that the they are governed by the Constitution of the CSI 2003. It would be more apt and appropriate

to reproduce some of the provisions found in the said Constitution. Rule 1 of Chapter IX reads thus:

The Synod is the highest representative body of the Church of South India, its supreme governing and legislative body and the visible symbol of

its unity.

Speaking of the powers of Synod, Rules 13, 14, 15, 15(a), 15(b) and 15(c) of Chapter IX of the Constitution read thus:

The Synod is the supreme governing and legislative body of the Church of South India, and the final authority in all matters pertaining to the

Church.

It has power to make rules and pass resolutions and take executive action as may be necessary from time to time for the general management

and good government of the Church and of the property and affairs thereof.

In as much as the Church of South India Trust Association has been formed for the purpose of acting as Trustee or Agent of all the properties,

movable and immovable, of the Church of South India, the Church of South India Synod shall have the power to elect the members of the Church

of South India Trust Association. The Moderator, the Deputy Moderator, the General Secretary and the Treasurer shall be ex-officio members of

the Church of South India Trust Association.

The Synod shall deal with matters of common interest to the whole Church of South India, and with those which affect the relation of the

dioceses to one another and to the rest of the universal Church, and shall leave the Diocesan Councils to deal with the internal affairs of each

diocese.

(a) The Synod Executive Committee/Working Committee/Officers shall have the power to call for particulars relating to the administration and

financial management of a diocese from the Bishop whenever required. If for any reason the Bishop of the Diocese is unable to furnish the

particulars, the same may be called for from the Officers of the Diocese and such information shall be furnished.

(b) If, at any time, the Synod Executive/the Working Committee/the Officers of the Synod are convinced that the situation of administration and

financial management in a particular diocese needs the assistance of the Synod, the Working Committee shall, without delay, take appropriate

action in consultation with the Executive Committee of the Diocese concerned, for restoring sound administration and financial management. The

report of any such action shall be submitted to the Synod Executive committee for review, within a period of six months, if necessary by a special

meeting.

(c) When the Synod or the Synod Executive is satisfied that a Diocesan Council is unable or unwilling to perform its functions as laid down in this

Constitution or in the Constitution of the Diocese, it may, on the recommendation of the Bishop of the Diocese or the Diocesan Executive or the

Moderator, take such steps as it considers necessary for the good administration of the internal affairs of the Diocese; provided that action under

this clause shall require the consent of three-fourths of the members present and voting excluding the elected representatives of the Diocese

concerned and shall remain in force only until the next meeting of the Synod.

From the very reading of the above provisions of the Constitution of the CSI, it would be quite clear that the Synod is the supreme governing

body and final authority in the matters pertaining to the Church. It is empowered to take executive action as may be necessary from time to time for

the general management and good government of the Church and of the property and affairs thereof. It is also empowered under Rule 15(a) of

Chapter IX to call for the particulars relating to the administration and financial management of a diocese from the Bishop whenever required, and

if, at any time, it is convinced that the situation of the administration and financial management in a particular diocese needs assistance of the Synod,

the Working Committee shall without delay take appropriate action in consultation with the Executive Committee.

In the case on hand, according to the plaintiffs, the cause of action for the suit arose from a letter dated 25.3.2008, addressed by the CSI to

the Bishop of Tuticorin Nazareth Diocese. A perusal of the letter would clearly indicate that the Synod has received several complaints from the

members of Tuticorin Nazareth Diocese with regard to the mismanagement of finance and maladministration; that it was brought to the notice of the

CSI that lawyer''s notices were received by the members for the amount actually spent by them for genuine reasons; that following the decision of

the Synod Executive Committee made on 27.2.2008, the Bishop agreed to send all the books of accounts for the years 2005-2006 and 2006-

2007 on or before 15.3.2008; but they have not complied with the same; and that in order to look into whether the financial and general

management of the diocese is functioning properly in accordance with the Constitution, the Synod was compelled to intervene in the administration

of the diocese of Tuticorin Nazareth. Pointing out the same, the CSI by the said letter directed the plaintiffs to submit accounts for the financial

years 2005-2006 and 2006-2007 within a period of seven days. It was also made clear that the improper and unconstitutional administration of

financial matters will affect the whole CSI. The plaintiffs were advised not to take any hasty steps in the matters relating to the financial accounts of

the diocese for the years 2005-2006 and 2006-2007.

It is pertinent to point out that when there were complaints received by the CSI, the Synod in exercise of the powers under the Constitution of

the CSI as stated above, convened a meeting and had a discussion, and also the Bishop has undertaken to submit accounts for verification but

failed to do so. On the contrary, the Bishop himself has constituted a High Power Commission of which he became the Chairman, and the Auditor

and the Treasurer became members. It is also not in controversy that there was a report filed by the Commission on 13.10.2007, stating that the

High Power Commission found that there was a misappropriation of Rs. 3 crores. While the matter stood thus, the same Bishop as the Chairman

of the High Power Commission sent a letter to the Superintendent of Police that there was only a misappropriation of Rs. 40 lakhs and sent

another letter dated 7.3.2007 by way of clarification that Rs. 40 lakhs was in fixed deposit in State Bank of India. In the letter dated 13.10.2007,

the Bishop has stated that Rs. 40 lakhs was misappropriated. The audit report dated 25.3.2008 also confirmed the said fact. Under the

circumstances, it would be quite natural for the defendants to entertain doubts, and they were compelled to know as to the financial management of

the institution. Issuing a letter for submission of accounts for perusal in order to find out the actual situation cannot be stated as illegal or without

jurisdiction. Hence the case of the plaintiffs that the issuance of a letter dated 25.3.2008, was an interference in the internal administration,

management and affairs of the first plaintiff diocese cannot be countenanced. This Court is of the considered opinion that to grant interim injunction,

no prima facie case is made out. In such circumstances, this Court has no hesitation to set aside the order of interim injunction made by the learned

Single Judge. Accordingly, it is set aside, and the interim injunction is vacated.

As regards the contention put forth by either side in respect of the provisions under Order 1 Rule 8 of C.P.C., no doubt it was a case where

both the first plaintiff and the first defendant are unincorporated bodies. At this juncture, Order 1 Rule 8 of CPC says that where there are

numerous persons having the same interest in one suit (a) one or more of such persons may, with the permission of the court, sue or be sued, or

may defend such suit on behalf of or for the benefit of all persons so interested. Section 26 of the CPC reads, ""Every suit shall be instituted by the

presentation of a plaint or in such other manner as may be prescribed."" As per the above provisions, the institution of such a suit must be with

permission of the Court, and the suit without getting permission of the Court under Order 1 Rule 8 of CPC cannot be maintained. So long as the

permission was not sought for and obtained and not even applied for it cannot be stated that there was a suit properly filed.

While making an order of injunction, the learned Single Judge has directed the plaintiffs to submit the accounts for the years 2005-2006 and

2006-2007 which, in the considered opinion of this Court, was consistent to the direction given by the Synod to the plaintiffs which was in the

interest of the CSI and also in exercise of the powers under the Constitution of Church of South India. There is nothing to interfere in that part of

the order of the learned Single Judge.

In the result, OSA No. 375/2008 is allowed setting aside the order of the learned Single Judge granting interim injunction. OSA Nos. 357 and

358/2008 are dismissed. The parties shall bear their own costs. Consequently, connected MPs are closed.