Andhra Pradesh High Court - Amravati
American Baptist Foreign Mission ... vs The Gurazala Field Association Of ... on 5 January, 2024
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.164 of 2017
JUDGMENT:
The present Civil Miscellaneous Appeal is filed by the
appellant aggrieved by the order dated 30.12.2016 passed in
I.A.No.104 of 2016 in O.S No.05 of 2016 on the file of the X
Additional District Judge, Gurazala.
2. The impugned application in I.A.No.104 of 2016 in
O.S. No.05 of 2016 was filed by the plaintiffs under Order
XXXIX Rule 1 and 2 r/w Section 151 of CPC seeking for grant
of temporary injunction restraining the respondents from
alienating the petition schedule properties, pending disposal of
the main suit. The appellants herein are the defendants No.1
to 13 and the respondents No.1 and 3 herein are the plaintiffs
and the respondent No.4 is the defendant No.14 in the suit in
O.S No.05 of 2016 filed for grant of declaration and for
consequential relief of permanent injunction against the
respondents/defendants on the file of the X Additional District
and Sessions Judge (for short "the Court below").
3. For the sake of convenience, the parties hereinafter
referred to as arrayed before the Court below.
4. Brief facts of the case are that The American Baptist
Foreign Mission Society" (in short ABFMS') was incorporated in
USA as religious and public charitable trust company and sent
it missionaries to India with an object to diffuse the knowledge
of religion of Jesus Christ by means of missions throughout
the world. Consequently, the ABFMS acquired properties at
various places, organized congregations constructed Churches
and institutions for public purpose. Similarly, one of the
missionaries came to Gurazala and bought nearly Ac. 19.00
cents, in Guntur District. In South India, the ABFMS was
working through the Samavesam of Telugu Baptist churches
(in short STBC) having its registered office at C.A.M.
Compound, Nellore. It is further stated that in the year 1973
the Government of India enacted Foreign Exchange Regulation
Act 1973. As per said Act, "No person who is not a citizen of
India and no company other than banking company which is
not incorporated under any law in force in India, shall, except
with the previous general or special permission of the Reserve
Bank acquire or hold or transfer or dispose of by selling,
mortgage, lease, gift settlement or otherwise any immovable
property situate in India." Accordingly, on 02.05.1974,
permission was given to the ABFMS to transfer its assets in
India to the PABC by the Reserve Bank of India. On
03.05.1974, the Hon'ble High Court of Madras sanctioned the
said scheme of amalgamation, which is in between the ABFMS
and PABC, was not challenged, as such, the same became final
in between ABFMS and PABC with regard to the subject matter
"Amalgamation". By virtue of the said order, the scheme of
amalgamation between the Indian Branch of ABFMS and PABC
the assets situated in India and also undertakings, obligations
and activities, which included the assets undertakings and all
activities at Gurazala were transferred to and vested in PABC.
In the year 1999, the PABC filed an application in CS No.124
of 1994 before the High Court of Madras seeking for selling a
piece of land at Kodaikanal of Tamilnadu which was part and
parcel of suit schedule property, and accordingly, the High
Court of Madras has permitted the PABC to sell the land, but
restrained further alienations of trust properties pending
disposal of the said suit and said injunction order is still in
force.
Thereafter, in the year 2003, the ABFMS filed a batch of
applications Nos.1409 to 1412 of 2003 before the High Court
of Madras and the same were dismissed vide order dated
6.4.2004. It is further stated that in violation of the statute
and settled principles of law and the order of restraint passed
in OSA No.69 of 1999 in CS No.124 of 1994, which is still in
force the alleged Power of Attorney Agent of ABFMS, executed a
sale deed bearing document No.10224 of 2010 dated
12.04.2010 for an extent of Ac 12.64 in Sy.No.677, 682/1 and
678/1 for a consideration of Rs.10,00,000/- registered at office
of Sub Registrar at Narasaraopet, Guntur in favour of
defendants No.3 to 9 and another sale deed bearing No.3763 of
2013 dated 01.05.2013 for an extents of Ac 1.92 cents in
S.No.743/2 registered at office of Sub Registrar Gurazala,
Guntur in favour of defendants No.10 to 13. While the matter
stood thus, the respondents No.2 to 4 bought the suit schedule
property from the ABFMS which is an American Religious
Charitable company. It is further stated that the respondents
No.3 to 13 are not the bonafide purchasers of the schedule
property as the PABC gave a public notice in daily newspaper,
Andhra Jyothi on 16.8.2006 against ABFMS against its
attempts to illegally alienate the suit schedule properties and
further another notification was issued in a daily newspaper
SURYA on 20.4.2016 against the respondents. It is stated
that the respondents No.4 and 6 got their names entered into
the record of Rights by playing fraud on the Tahsildar,
Gurazala and taking advantage of entries revenue records, the
respondent No.4 and 6 managed the police to threat the
beneficiaries by implicating them in criminal cases and trying
to interfere without any right. The respondents No.4 and 6
under the guise of their fraudulent entries in the revenue
records are trying to alienate the schedule properties to third
parties and if they are allowed to do so, it would lead to
multiple litigations and irreparable loss to the trust properties
and its beneficiaries. Hence the impugned application was
filed for grant of relief as stated supra.
5. The respondent No.6 has filed counter and the same
was adopted by the respondents No. 1, 3 to 5, 7 to 10, 12 and
13. The respondents while denying all the averments made in
the petition contended that ABFMS was a registered society
under the Societies Registration Act on 29.09.1977. In fact,
the amalgamation is not completed, as such, the
amalgamation has no legal force in the eye of law, and that the
ABFMS never transferred its properties to the PABC nor the
PABC was in possession of the ABFMS properties as held in
OSA No.291 of 2004 in CS No. 124 of 1994 dated 05.04.2005.
It is further contended that the suit in O.S.No.261 of 2010 was
filed by PABC on the file of IV Additional District Judge,
Nellore, was ended in compromise between ABFMS and PABC.
It is further averred that Hon'ble High Court of Madras in
W.P.No 17420 of 2005 held Field association is not concerned
with the properties and it has no locus standi to file the W.P.
further, the Gurazala Field Association has filed W.P.No 4473
of 2014 before this Court, claiming the schedule properties,
which noticed that the amalgamation has not become final and
ABFMS continued to hold and manage the properties
belonging to it. The properties are dealt with by ABFMS
cannot be concerned to the petitioner, and that the W.P. filed
by the petitioner would not lie, and that there is no legal injury
to the petitioner's association. It is further contended that all
the properties transferred to the PABC/14th respondent and
they are vested with the same as per the amalgamation
process and prayed to dismiss the petition with costs.
6. The respondent No.14 has also filed counter and
denied all the allegations made in the petition. It is contended
that ABFMS filed an application No.4740 of 2004 in CS No.124
of 124 of 1994 to implead itself as a party but the same was
dismissed vide order dated 16.12.2004. Questioning the said
order ABFMS filed OSA No.296 of 2004 before Division Bench
of High Court of Madras and the same was allowed on
26.4.2005 on a finding that the amalgamation was not
completed. It was made clear that the conclusion/finding
rendered relates to the disposal of the application against
which the said appeal was filed. As such, it is not open to the
1st respondent to rely on the findings rendered by a Division
Bench of the Madras High Court. There are no merits in the
claim of the respondent/PABC to interfere with the petition
schedule property and also to alienate the petition schedule
properties which is against the court orders and hence prayed
to pass appropriate orders.
7. During the course of trial, no oral evidence was
adduced on either side. However, Ex.P1 to Ex.P5 were marked
on behalf of the petitioners and Ex.R1 to Ex.R20 were marked
on behalf of the respondents.
8. Basing on the above pleadings, the Court below
framed the following point for consideration:
Whether the petitioners are entitled to the temporary injunction
restraining the respondents from alienating the petition schedule property,
pending disposal of the main suit O.S.No.5 of 2016?
9. After careful consideration of oral and documentary
evidence and on considering the arguments of both the
counsels, the Court below has allowed and granted temporary
injunction restraining the respondents No.1 to 13 from
alienating the petition schedule properties pending disposal of
O.S.No.05 of 2016. Challenging the same, the present civil
miscellaneous appeal came to be filed.
10. Heard Sri Vedula Srinivas, learned counsel for the
appellant No.1; Sri P. Durga Prasad, learned counsel
representing Sri D. Rambabu, learned counsel for the
appellants No.2 to 13 and Sri Thota Ramakoteswara Rao,
learned counsel appearing for the respondents.
11. On hearing, Sri Vedula Srinivas, learned counsel for
the appellant No.1 argued that the order of the Court below is
contrary to law, weight of evidence and probabilities of the
case. He submits that the Court below failed to see that the
suit itself is not maintainable with the prayer incorporated in
it. It cannot declare the scope and purport of the order passed
by the High Court of Madras and in proceedings in
O.S.A.No.296 of 2004 in Companies Law jurisdiction. He
further submits that the Court below failed to see that the suit
is not maintainable since the plaintiffs failed to discuss as to
how they are connected with the suit property and how their
rights are effected on account of the alienation of the suit
property. He further submits that the Court below failed to
see that the plaintiffs do not have any locus at all as they are
no way concerned with the suit schedule property nor have
stated in the plaint as to how their rights are effected by
alienation of suit schedule property.
12. Sri P. Durga Prasad, learned counsel representing
Sri D. Rambabu, learned counsel appearing for the appellants
No.2 to 13 argued that the Court below failed to see that the
whole issue is now beyond its hands by virtue of the judgment
of this Court in W.P.No.4473 of 2014 and the findings given
therein and the Court below also failed to record any reasons
for grant of injunction which is in violation of Order XXXIX
Rule 1 of CPC. The approach of Court below in saying that
unless the injunction is granted restraining the defendants
from alienating the suit property pending the suit, there would
be multipolicy of litigation is unwarranted and unsustainable
since it is not the case of the plaintiffs that the suit properties
belong to them or that they would lose the suit properties
unless the alienations are restrained. Learned counsel mainly
contended that the respondents herein have suppressed the
material facts with a view to get an order of injunction contrary
to the judgments of constitutional Courts and therefore it is
obvious that the plaintiff's intentionally with a view to gain to
wrongfully so as to knock away the suit schedule property and
thereby perpetuated the illegality by approaching the civil
Court without jurisdiction and therefore the order passed by
the court below is without jurisdiction. Further the Civil Court
went an extent of ignoring the judgments of the constitutional
Courts contrary to the Article 141 of the Constitution of India
and therefore the Civil Court has no power to pass any order
more particularly in the absence of the rights to the plaintiff's
that an order of injunction cannot be granted and the same is
illegal. Therefore, learned counsel requests this Court to pass
appropriate orders by setting aside the impugned order.
13. Per contra, learned counsel for the respondents
while reiterating the averments made in the petition submits
that the 1st defendant/1st appellant herein was impleaded as
4th defendant in C.S No.124 of 1994 on the file of High Court of
Madras and being the owner of the properties, the 14th
defendant namely PABC filed petition seeking permission for
selling the property situated in Kodaikanal and the Madras
High Court granted permission and in the same order the
Court directed the parties not to alienate the other properties
pending disposal of the suit CS No.124 of 1994. Since the 1st
appellant is a party to the said suit in CS No.124 of 1994 by
virtue of orders of the Maras High Court, it has no right to
alienate the properties. He further submits that the 1st
appellant has no right to interfere with the properties of 14 the
defendant/PABC as evidenced by Ex.R10. he further submits
that as per the order s of High Court of Madras in OSA No.69
of 1999 in CS No.124 of 1994 the document bearing
No.10224/2010 dated 12.4.2010 for an extent of Ac 12.64
cents in S.No.677, 682/1 and 678/1 and the document
No.3763/13 dated 1.5.2013 for an extent of Ac 1.92 cents in
S.No.743/1 are all void and illegal. He further submits that
the Court below has rightly allowed the application filed by the
plaintiffs and no merits in the present appeal hence prayed to
dismiss the same.
14. Admittedly, the plaintiffs filed suit in O.S No.5 of
2016 seeking for declaration and for consequential relief of
permanent injunction against the respondents/defendants.
Further, along with above suit, the plaintiffs filed an
application for grant of temporary injunction, which is
impugned in the present appeal. This Court observed from the
impugned order that, prima facie, as per the documents relied
on by the plaintiffs and 14th respondent/defendant the
plaintiffs are the officials i.e., President, Secretary and
Treasurer of the plaintiffs and all the properties vested with the
14th defendant/PABC. Since the very suit is filed questioning
the validity of the 1st defendant/ABFMS in dealing with the
schedule properties including the execution of the sale deeds
in favour of D3 to D13 in respect of schedule properties dated
12.4.2010 and 1.5.2013 and as the impugned application was
filed for restraining the respondents from alienating the
properties and as the 14th defendant/PABC would prove its
title to the property. If the respondents No.1 to 13 are allowed
to alienate the properties pending disposal of the suit,
invariably it would lead to the multiplicity of the proceedings
besides the change of the very nature of the suit.
15. On perusing the material available on record, this
Court observed that ABFMS is a registered Society and the
same is registered as society No.78/1977 dated 29.9.1977. In
fact the amalgamation is not completed and the alleged
amalgamation has no legal force in the eye of law. Further, the
ABFMS never transferred its properties to PABC and the PABC
never taken possession of the ABFMS property. Moreover, the
suit in O.S.No.l261 of 2010 was filed by the PABC was
disposed of, as there was compromise between ABFMS and
PABC. It is also observed from the judgment of High Court of
Madras in W.P.No.17420 of 2005 that the Field Association is
not concerned with the properties and has no locus standi to
file the writ petition.
16. This Court further observed that the respondents
Association filed W.P.No.4473 of 2014 before the High Court at
Hyderabad for the State of Telangana and for the State of
Andhra Pradesh claiming suit schedule properties. The Court
noticed from the orders of Madras High Court that the
amalgamation has not become final and ABFMS continue to
hold and manage the properties belonging to it. The manner
in which the properties are dealt with by ABFMS cannot be
concerned to the respondent and no right of the respondent
much less vested right is effected by sale transactions
undertaken by the ABFMS.
17. In the present case, this Court observed that, it is
an undisputed fact that consistently this Court as well as High
Court of Madras clarified the position of the plaintiff's and
their rights over the suit schedule property in WP No.4473 of
2014 vide order dated 16.12.2014 and also by the Division
Bench of High Court of Madras in Case Nos.296 of 2004 &
20691 of 2004 and 4195 of 2005, dated 5.4.2005 and therefore
the decisions of both the Courts categorically stated that the
plaintiff's cannot claim any right over the suit schedule
property and therefore it is crystal clear that the plaintiff's
cannot claim any right legally over the suit schedule property
and therefore the institution of suit by the plaintiff's have no
legal basis to claim any right over the property.
18. This Court further observed from the order of this
Court passed in W.P.No.4473 of 2014, wherein it was clearly
held that "insofar as the entitlement of ABFMS to sell the
properties is concerned, inter parties the issue has become
final and therefore third party (the plaintiffs in OS No.5
of2016) who is only remotely connected to PABC and has no
relation to ABFMS cannot challenge such sale transactions in
writ petition, more particularly when the decision in OS
No.261 of 2014 has become final." Therefore, it seems that the
above judgment is binding on the plaintiffs still holds good and
that were never challenged by way of any appeal.
19. It is observed from the order of a Division bench of
High Court of Madras, wherein the plaintiffs in the suit
claiming rights over the properties basing on an order of
amalgamation, the High Court of Madras held that "the
scheme of amalgamation as proposed was sanctioned, notice
to the Official Liquidator was ordered returnable by 27.6.1974,
however, it has seen that by a subsequent order dated
5.7.1974 of this Court, the prayer for dissolution of a
Transferor company was not pressed. Therefore it follows as
put forth by the first defendant"
20. Therefore, on a plain reading of the above judgment,
it is crystal clear that there was no amalgamation legally and
the finding of Division Bench has become final and the same
was not challenged anywhere by the plaintiffs or anybody else.
So, it is clear that the plaintiffs cannot claim anything legally
under the guise of amalgamation when legally there is no
amalgamation as held by a Division Bench of Madras High
Court. It is also observed that, the very fundamental principle
is that the Civil Court cannot set aside and clarify the order of
a constitutional Court and the civil Court has no power or
jurisdiction as it is contrary to the Article 141 of the
Constitution of India and contrary to the legal principles.
Therefore, the plaintiffs are not legally entitled for any relief n
the main suit and they are not entitled for any injunction as an
equitable relief.
21. In view of the foregoing discussion, this Court is of
the opinion that the plaintiffs do not have any locus at all as
they are no way concerned with the suit schedule properties
nor have stated in the plaint as to how their rights are affected
by alienation of the suit schedule property. Further, the Court
below failed to see that the suit is not maintainable since the
plaintiffs failed to disclose as to how they are connected with
the suit property and how their rights are effected on account
of the alienation of the suit property. In view of the above, the
Court below went wrong and miserably failed to give proper
reasons while allowing the application. Therefore, this Court
deems fit to allow the present appeal while setting aside the
impugned order.
22. Accordingly, the Civil Miscellaneous Appeal is
allowed. The order dated 30.12.2016 passed in I.A.No.104 of
2016 in O.S No.05 of 2016 on the file of the X Additional
District Judge, Gurazala, is hereby set aside. Further, since
the suit pertains to the year 2016, the Court below is directed
to dispose of the same, as expeditiously, as possible. There
shall be no order as to costs.
19. As a sequel, miscellaneous applications pending, if
any, shall also stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 05-01-2024
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HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.164 of 2017
Date : 05 .01.2024
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