J. C. Sampath Kumar vs Church Of South India
2023 Latest Caselaw 2335 Kant

                             1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF APRIL, 2023

                          BEFORE

             THE HON'BLE MRS. JUSTICE M G UMA

  MISCELLANEOUS FIRST APPEAL NO. 318 OF 2023 (CPC)

BETWEEN:

J. C. SAMPATH KUMAR
AGED ABOUT 71 YEARS,
S/O D. JAMES,
FLAT NO.G-004,
KASTLE KRISHNA APARTMENTS,
#15, OLD #69,
9TH B CROSS ROAD,
VINAYAKA LAYOUT,
MANORAYANAPALAYA,
BENGALURU - 560 032.
                                                ... APPELLANT
(BY SRI: K.B.S. MANIAN, ADVOCATE)

AND:

1. CHURCH OF SOUTH INDIA
   AN AUTONOMOUS INDIAN CHURCH
   REPRESENTED BY THE
   SYNOD SECRETARIAT,
   (GOVERNING BODY OF THE
   CHURCH OF SOUTH INDIA)
   CSI CENTRE, #5, WHITES ROAD,
   P.O. BOX, 688, ROYAPETTAH,
   CHENNAI - 600 014.

2. A. DHARAMARAJ PRASALAM,
   MODERATOR,
   CHURCH OF SOUTH INDIA,
   SYNOD, BISHOP'S HOUSE,
   LMD COMPOUND,
   THIRUVANANTHAPURAM - 695 033.

3. THE KARNATAKA CENTRAL DIOCESE
   CSI DIOCESAN OFFICE,
                              2


   #20, 3RD CROSS, CSI COMPOUND,
   BENGALURU - 560 027,
   REPRESENTED BY ITS BISHOP.

4. DR. PRASANNA KUMAR SAMUEL
   BISHOP, KARNATAKA CENTRAL DIOCESE,
   CSI DIOCESAN OFFICE, #20,
   3RD CROSS, CSI COMPOUND,
   BENGALURU - 560 027.

5. THE SECRETARY,
   CSI DIOCESAN OFFICE,
   #20, 3RD CROSS,
   CSI COMPOUND,
   BENGALURU - 560 027.

                                       ... RESPONDENTS
(BY SRI: ARUN B.M., ADVOCATE FOR R1, R3 & R5
    R2 SERVED, R4 SERVED)

      THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(R) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
03.01.2023 PASSED ON I.A.NO.II IN OS.NO.5882/2022 ON THE
FILE OF THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY, CCH7, DISMISSING THE I.A.NO.II FILED UNDER
ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.


     THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.03.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

The appellant being the plaintiff in

O.S.No.5882/2022 on the file of the learned XXII

Additional City Civil & Sessions Judge, Bangalore City

(CCH-7) (hereinafter referred to as 'the trial Court' for

short) is impugning the order dated 03.01.2023 passed

on I.A.No.II filed by him under Order XXXIX Rule 1 and 2

r/w Section 151 of CPC, dismissing the said application

and thereby, rejecting the claim for grant of temporary

injunction to restrain defendant No.3- the Karnataka

Central Diocese from proceeding with the scheduled

meeting of the Diocesan Councils on 12.09.2022,

pending disposal of the suit.

2. For the sake of convenience, parties are

referred to as per their status and rank before the Trial

Court.

3. Brief facts of the case are that, the plaintiff

filed O.S.No.5882/2022 before the trial Court against

defendant Nos.1 to 5 seeking the relief of declaration

that the proposed amendment as per the Circular dated

18.08.2022 issued by defendant No.1 to amend the

Constitution of the Church of South India in terms of

Clause 12(A) of Chapter-V, whereby the retirement age

of the Bishops is sought to be extended from the age of

67 years to 70 years as being malafide, not in good faith

and consequently, null and void; granting decree of

permanent injunction restraining the defendants from

proceeding to amend Clause 12(A) of Chapter-V of the

Constitution of the Church of South India as proposed or

in the alternative to prayer (a) and (b), and in the event

the Court is not inclined to grant above reliefs, to direct

that any process of ratification of the proposed

amendments to the Constitution of the Church of South

India in terms of Clause 12(A) of Chapter-V, whereby the

retirement age of the Bishop is sought to be extended

from the age of 67 to the age of 70 years to be held after

the expiry of six months from the date of the suit and to

grant such other reliefs.

4. The plaintiff contended that he is a

communicant/Diocesan Council member of the Karnataka

Central Diocese of the Church of South India i.e.,

defendant No.3 and he is aggrieved by the proposed

amendment to the Constitution of defendant No.1, as the

same being motivated by malice and being carried out in

bad faith and therefore, the same is required to be set at

naught. The plaintiff contended that defendant No.1 is

an autonomous body and Union of substantial number of

Churches in the South India including the States of

Karnataka, Tamilnadu, Andhra Pradesh, Telangana,

Kerala and even the territory of Jaffna in Srilanka. The

defendant No.1 was formed immediately after India

gained independence.

5. It is stated that the organizational structure

has its apex body an organ known as 'Synod'.

Defendant No.1 is managed by a system of dioceses and

a superior body called 'Synod'. Synod is headed by a

moderator. There are in all 24 dioceses comprising the

Church of South India. Under each Diocese are attached

churches falling within its jurisdiction. The Church is

within the jurisdiction. The Karnataka Central Diocese

Counsel is one such body under which several churches

coming under the auspices of the Church of the South

India. The suit primarily concerns the proceedings of

Karnataka Central Diocese. The suit proceedings

challenge a motion to ratify the proposed amendment as

resolution in Synod by the Karnataka Central Diocese

Counsel at its scheduled meeting to be held on

12.09.2022. Each diocese is headed by a Bishop, who is

the President of Diocesan Council consisting of members

who are the members of the Churches under the control

of the Diocese. These members are called

communicants. Apart from Communicants, the

membership of the Diocesan Councils also comprises the

Pastors of these churches. The Karnataka Central

Diocesan Council consisting of 350 members of which,

150 are the Pastors and about 200 are communicant

members of various Churches under the Karnataka

Central Diocese Counsel. It is stated that all these

persons are necessary parties to the suit. Therefore,

separate application under Order 1 Rule 8 of CPC was

filed seeking permission and to ensure publication of

adequate notice to all the members concerned.

6. It is contended that as per Clause 12(A) of

Chapter-V of the Constitution of defendant No.1, the

retirement of a Bishop is on completion of 67 years of

age, with other qualifications that are prescribed in the

Synod. The proposed amendment is to increase the age

of retirement of a Bishop from 67 to 70 years. This

amendment was sought with malicious intention to

ensure that the elections for few bishops who were

holding the office to continue beyond their term of

retirement. The proposed amendment is purely to serve

private vested interests and is derogatory and ultra vires

the Constitution of the Church of South India. The

proposed amendment is opposed to the guiding principle

for which defendant No.1 has been established. The

proposed amendment is in the teeth of the Constitution

of defendant No.1 and consequently, it is ultra vires.

7. It is contended that the communication dated

18.08.2022 was forwarded from Secretary of Synod,

Church of South India to all the Diocesan Councils for

ratification of the proposed amendment proposing to

increase the age of Bishop from 67 to 70 years. The

proposed amendment is made or proposed to be made

only to benefit 8 Bishops who can remain in the office of

Bishop even after their age of retirement. The proposed

amendment has no other object, except the personal

interest of few Bishops. It is asserted by the plaintiff

that the real motive behind extending the age from 67 to

70 years is to ensure these Bishops to continue to be in

position to stand for the elections as Moderator or

Deputy Moderators of Synod. Therefore, the proposed

amendment is towards gaining personal gratification and

essentially it is a financial burden on defendant No.1.

8. It is stated that the said proposal to increase

the age of retirement was made for the second time in a

row. In order to unduly remain in office, a similar

amendment was moved and passed in the year 2015,

enhancing the age of retirement from 65 years to 67

years and it is now a second attempt to further increase

the tenure of the Bishop proposed to be enhanced by

three more years. Since the proposed amendment

would affect the substantial public interest which was

being done to satisfy the personal gains of few

individuals, the plaintiff is before this Court.

9. It is stated that the amendment proposed by

Synod is to be ratified by 2/3rd Dioceses and the

Constitution provided for two years term for the Dioceses

to consider the amendment. Since the 8 Bishops are due

for retirement shortly, the Synod is not ready and willing

to wait for such two years period grated for Dioceses to

consider the proposed amendment. Only to accelerate

the process of ratifying the proposed amendment, the

Bishops are moving heaven and earth to have the

ratification done at the earliest so that their age of

retirement will be enhanced.

10. It is stated that some of the members of

defendant No.1 have filed O.S.No.9/2022 before the

learned Principal Senior Civil Judge, Karimnagar,

Telangana, which had granted interim injunction on

20.04.2022 against the defendants from proceeding with

the proposed amendment. The facts and circumstances

of the case are identical and the said order is being

challenged before the High Court of Telangana.

11. It is stated that the Synod has decided to

circulate the proposed amendment against the order of

the Court and issued the notice dated 18.08.2022 and a

vague statement is made in the last paragraph evidently

to take shelter against any proposed act for contempt.

However, the order of the Court has put on hold the

proposed amendment.

12. The plaintiff contended that the defendants

are in haste to proceed to ratify the proposed resolution.

The Karnataka Central Diocese Counsel has gone to the

extent of declaring holidays on 8th and 9th of September

2022 to the Schools that are run by defendant No.1 only

to facilitate the process of ratification of the illegal

resolution. Therefore, it is contended that the cause of

action for the suit arose on 18.08.2022 when the

proposed amendment was sought to be circulated

amongst the Dioceses for ratification. The cause of

action also arose on 29.08.2022 when a notice of Special

meeting of the Diocesan Council was scheduled to be

held on 12.09.2022. Since the office of the Karnataka

Central Diocese Counsel is based within the jurisdiction

of the trial Court, the suit was filed there. Accordingly,

the plaintiff sought for declaration and permanent

injunction in the interest of justice.

13. I.A.No.II under Order 39 Rule 1 and 2 r/w

Section 151 of CPC was filed seeking grant of Ad-interim

order of temporary injunction restraining defendant No.3

from proceeding with the scheduled meeting of Diocesan

Council on 12.09.2022 during the pendency of the suit in

the interest of justice. The contention taken by the

plaintiff in the plaint was reiterated through his affidavit

in support of the application and sought for grant of Ad-

interim temporary injunction.

14. It is stated that when the suit along with

I.A.No.II was filed before the trial Court, defendant No.4

appeared before the Court, represented by his Advocate

and opposed granting of any relief under I.A.No.II.

Arguments on both sides were heard on 09.09.2022 and

the Court has passed the following order.

"I.A.No.II filed by the plaintiff is hereby allowed. The 3rd defendant is hereby restrained from conducting a special meeting of the Diocesan counsel on 12.09.2022 till one week."

15. Thereafter, the matter was posted on

15.09.2022 and the interim order granted earlier was

extended till the next date of hearing i.e., 15.10.2022

and posted the matter on 04.02.2023. In the meantime,

on 28.11.2022, case was advanced at the instance of the

defendants who filed an application seeking to set aside

the order placing defendant Nos.3 and 5 ex-parte. The

said application was allowed and defendant Nos.3 and 5

were permitted to contest the matter.

16. Defendant Nos.3 and 5 have filed their

objections to I.A.No.II contending that the suit itself is

not maintainable and the plaintiff has approached the

Court with false and mischievous claim. It is stated that

defendant No.1 is a Union of Churches comprising the

States of Karnataka, Tamilnadu, Kerala, Andhra Pradesh,

Telangana and Jaffna and Srilanka. There are 25

dioceses of churches of South India and defendant No.3

is one amongst them. Filing of the suit by the plaintiff is

against the Constitution of CSI and thus it is not

maintainable. As per Clause-4 in Chapter XI of the

constitution of CSI, the suit should have been instituted

within the jurisdiction of the office of Synod and its

Secretariat is situated since the office of Synod is

situated at Chennai, the Court at Bengaluru has no

jurisdiction.

17. Defendant Nos.3 and 5 have also contended

that the decision of defendant No.1 proposing to amend

the constitution and bye laws was challenged before the

High Court of Judicature at Madras by instituting a suit

CS No.45/2022 and an application in OA No.115/2022

was also filed seeking interim relief restraining defendant

No.1 from giving effect to the Resolution.

The order was passed by the High Court of Judicature on

10.03.2022 restraining defendant No.1 from taking any

decision and giving effect to the Resolution. The same

was challenged by defendant No.1 in OSA No.69/2022

and the Division Bench by its order dated 30.02.2022

suspended the order dated 10.03.2022.

18. It is also contended that the proposed

amendment was challenged by filing a suit in OS

No.9/2022 before the Civil Court at Karimnagar,

Telangana. An interim order was passed on 07.03.2022

restraining defendant No.1 from proceeding to accept the

Resolution. The said order was challenged by defendant

No.1 before the High Court for the State of Telangana

and even the High Court of Telangana suspended the

order granting interim relief to the plaintiff and therefore,

defendant No.1 called upon defendant No.3 to proceed

with the meeting and consider rectification of the

Resolution.

19. It is stated that the plaintiff has not made out

any ground to maintain the suit. The interim injunction

sought by the plaintiff was only against defendant No.3.

If 2/3rd of the other dioceses ratify the Resolution, the

amendment will come into effect. Therefore, the prayer

for interim relief against defendant No.3 will not have

any consequences. It is stated that the cause of action

claimed by the plaintiff is imaginary and therefore,

prayed for dismissal of the application.

20. The Trial Court after taking into consideration

the contention of the parties in the light of the materials

that are placed before it, dismiss I.A.No.II rejecting the

claim for grant of temporary injunction against defendant

No.3. The said order is being challenged before this

Court.

21. The appellant contended that the trial Court

committed an error in dismissing I.A.No.II filed under

Order XXXIX Rule 1 and 2 of CPC. It has committed an

error in holding that it has no territorial jurisdiction to try

the suit, but inspite of that, proceeded to consider the

said I.A. on merits. The trial Court has not taken into

consideration the contention taken by the plaintiff with

regard to the jurisdiction of the trial Court in terms of

Section 20(c) of CPC. The trial Court has also not taken

into consideration the fact that the suit was filed in

representative capacity. The interest of Christian

community at large will be affected by the proposed

amendment. The observation of the trial Court that the

plaintiff has not stated anything as to how many

Diocesan members are there and how many are

opposing and supporting the proposed amendment.

Further, the observation of the trial Court that, even if,

the amendment proposed is not ratified by the Karnataka

Central Diocesan Council, it will not have any

consequential effect, is also perverse.

22. The trial Court failed to take into

consideration the fact that there are 24 Diocesan

Councils including the Karnataka Central Diocese Council.

The ratification of the proposed amendment requires

2/3rd majority. Therefore, only when 16 Diocesan

Councils ratified the proposed amendment, the

amendment could be brought into effect. The finding

recorded by the trial Court that the proposed

amendment is not ultra vires is also erroneous. It is

premature to form such an opinion. The cause of action

pleaded by the plaintiff was not considered by the trial

Court. It has also not taken into consideration that time

limit of two years is prescribed under the Constitution of

the Church of South India for the Diocesan Council to

consider the proposed amendment. The motive behind

insisting for ratification within two days as explained by

the plaintiff was not appreciated in proper sense.

23. Even though the interim order restraining the

defendants from convening the meeting was passed and

was in operation, the defendants on the advise of the

Council, without reference to the pendency of the

proceedings and passing of the Ad-interim order, called a

meeting by issuing a notice dated 19.12.2022 for the

purpose of ratifying the amended schedule in the

meeting of 21.12.2022. Therefore, only two days prior,

the notice was issued on the first day of winter vacation.

Infact, the defendants have committed contempt of

Court by their wilful actions. Accordingly, the meeting

was held on 21.12.2022 with two days notice in violation

of the Constitution of Karnataka Central Diocese, which

provides minimum two months notice for holding such

meetings. Therefore, it is contended that the meeting

held on 21.12.2022 and the resolution passed to ratify

the proposed amendment was during the operation of

the Ad-interim order passed by the trial Court.

24. Moreover, no notice was issued to all the

members of the Diocesan Council and the proceedings

were conducted secretly. There was no transparency in

holding the meeting. The meeting dated 21.12.2022 to

ratify the amendment was participated by Bishops and

Pastors who are personally benefited by such

amendment, even though they were disqualified to

attend or participate in the said meeting. Thus, the

resolution dated 21.12.2022 passed hurriedly during the

operation of interim order of the Court, is vitiated and

the same is liable to be set aside. Therefore, the

appellant prays for setting aside the order dated

03.01.2023 passed by the trial Court on I.A.No.II filed

under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC

and also to allow the said application in the interest of

justice.

25. Heard Sri K.B.S.Manian, learned counsel for

the appellant and Sri Arun B.M., learned counsel for the

respondents and perused the materials on record.

26. Learned counsel for the appellant by

reiterating the contentions taken by the plaintiff in the

plaint and also in the appeal memo contended that in a

great hurry, the proposed amendment was tried to be

ratified, which shows the motive behind such action.

When the Constitution of the Church of South India

provides two years time for ratification of the

amendment and it prescribes two months prior notice to

convene the meeting of Diocesan Council, Convening the

meeting hurriedly in winter vacation for the trial Court

with two days notice is to be taken into consideration.

When the trial Court held that it has no jurisdiction to try

the suit, it could not have gone into the merits of the

suit. It could not have retained the suit with it. It has

also not taken into consideration Section 2(b) and 2(c) of

CPC, which are stand alone provisions.

27. Learned counsel further submitted that a

similar suit was filed before the Court at Telangana,

wherein temporary injunction was granted. The

defendants have moved the Hon'ble Apex Court for

transfer of the suit to Chennai. But the Hon'ble Apex

Court dismissed the transfer petition vide order dated

02.02.2023 and allowed the Telangana Court to proceed

with the matter. Under such circumstances, the trial

Court committed an error in forming an opinion that it

lacks jurisdiction.

28. Learned counsel further submitted that Ad-

interim order was passed on 09.09.2022 restraining

defendant No.3 from conducting the subject meeting of

Diocesan Council dated 12.09.2022 till one week.

Thereafter, the said Ad-interim order of injunction was

extended from time to time till 04.02.2023, but the

defendant Nos.3 to 5 have placed ex-parte vide order

dated 15.10.2022. Defendant Nos.3 and 5 have

advanced the suit to 28.11.2022 after filing the

application to set aside the order placing them ex-parte

and accordingly, the said order was set aside. The

matter was again posted on 30.11.2022 and from

30.11.2022, it is posted on 09.12.2022 and finally, it was

reserved for orders on 12.12.2022 and posted the matter

to 03.01.2023, but in the meantime, during winter

vacation for the Court, the defendants hurried in

convening the subject meeting suppressing the Ad-

interim order which was in force till 04.02.2023 and

served notice only on few members on 19.12.2022 and

held the meeting on 21.12.2022 to achieve their object

of ratifying the amendment proposed by Diocesan

Councils.

29. Learned counsel also submitted that even

though this Court had issued notice and even ordered for

issuance of hand summons and when the same was tried

to be served on the respondents on 12.01.2023 i.e., on

the date of trust meeting of Synod, the respondents

refused to receive the hand summons, but on the other

hand, lodged first information. The plaintiff has initiated

contempt proceedings against the defendants, but in the

meantime, defendants were successful in holding the

meeting and passing the resolution hurriedly ignoring the

order of temporary injunction granted by the trial Court.

There was absolutely no reasons for the defendants to

call for the meeting on the first day of winter vacation

and to convene the meeting within two days and pass

the resolution hurriedly. The entire Christian community

who are in substantial number are effected by the

proposed amendment and the resolution passed in haste.

30. Learned counsel submitted that even though

similar suit is pending before the Court at Chennai,

temporary injunction was not sought against the

Diocesan Councils, but it was only against Synod.

Therefore, all together it was a different situation.

31. The High Court of Telangana passed the order

dated 11.01.2023 which is extracted by this Court in the

order dated 09.02.2023 restraining the revision

petitioner therein not to take any further steps while

proceeding with the meeting etc., till 19.01.2023. This

Court has also noted the order passed by the High Court

of Madras granting interim order, permitting conduct of

ordinary meeting of Synod and the election subject to

the conditions based on those orders passed by the High

Court of Telangana and Madras. The order dated

12.01.2023 passed in the present case was modified and

the decision, if any taken in the meeting held on

21.12.2022 is subject to the result of this appeal.

32. Learned counsel further contended that in

view of further developments during the pendency of the

suit and during operation of the interim order granted by

the trial Court, respondent No.3 proceeded to convene

the meeting of Karnataka Central Diocese Council

hurriedly and proceeded to pass the resolution, which is

in clear violation of the order passed by the trial Court,

which will have no effect in the eye of law. Therefore, he

prays for allowing the appeal and consequently, to allow

I.A.No.II filed under order XXXIX Rule 1 and 2 r/w

Section 151 of CPC, restraining the defendants from

taking any decision towards ratification of the

amendment sought for and to restore the status-quo-

ante in the interest of justice. Accordingly, he prays for

allowing the appeal.

33. Learned counsel for the appellant placed

reliance on the decision in Dr.T Gnanasambanthan Vs.

The Director, National Institute of Technical

Teachers, Training and Research Taramani,

Chennai1 to highlight his contention that granting of

interim relief till the next date of hearing would mean; till

happening of a particular or until something expected

happens. Merely because the suit was advanced, the

effect of passing of the interim order till the next date of

hearing would not ceases to be in operation. He also

placed reliance on the decision in Govinda Bhagoji

Kamble and others Vs. Sadu Bapu Kamable and

others2 in support of his contention. Accordingly, he

prays for allowing the appeal.

34. Per contra, learned counsel for respondent

No.3 opposing the appeal submitted that defendant No.1

is having its office at Chennai. Defendant No.2 is at

Thiruvananthapuram. The reliefs claimed in the suit is

2014 (2) CTC 549

2005(1)Mh.L.J.

against defendant No.1. Under such circumstances, the

trial Court rightly held that it has no territorial

jurisdiction to try the suit. He further contended that

Synod has passed the resolution seeking ratification of

the amendment in its meeting held on 07.03.2022. The

said resolution was never challenged by the plaintiff.

Now Synod has sought ratification of the amendment by

all the 23 Diocesan Councils as per the Circular dated

18.08.2022.

35. The prayer made in I.A.No.II filed by the

plaintiff is with regard to the subject meeting of Diocesan

Council proposed to be held on 12.09.2022. The said

meeting was not organized by defendant No.3, but was

by defendant No.1 for ratification of the resolution dated

07.03.2022. Prior to the meeting dated 12.09.2022, on

09.09.2022 i.e., two days earlier to the meeting dated

12.09.2022, the trial Court passed an order restraining

defendant No.3 from holding the meeting. But the said

order expires on 12.09.2022, even though it was

extended on 15.10.2022 which was only till the next date

of hearing i.e., 28.11.2022 and on the next date of

hearing it was never extended. Therefore, the interim

order passed by the trial Court ceased to be in operation

since 28.11.2022. Therefore, the contention of the

learned counsel for the appellant that the meeting was

convened violating the order passed by the trial Court

during winter vacation is misleading and factually

incorrect.

36. Learned counsel further submitted that the

plaintiff had moved the vacation Court by filing Misc.case

No.164/2022 to consider the application on the ground

that the special meeting was convened on 21.12.2022.

The trial Court subsequently observed that from

28.11.2022 when the case was advanced, there was no

extension of interim order. Therefore, the prayer made

by the plaintiff was rejected by the vacation Court.

37. Learned counsel further submitted that the

trial Court dismissed the application not only on the

ground of want of jurisdiction, but also on merits,

considered order is passed assigning reasons. He also

contended that the High Court of Madras passed the

order permitting the defendants to go ahead with the

meetings and taking decision. The question raised

before the High Court of Chennai and Andra Pradhesh

are similar to the question raised before the trial Court

and before this Court. Under such circumstances,

passing of contradictory orders by this Court may not be

proper. Since the resolutions are already passed, there

is nothing to prevent the defendants from proceeding

further. Under such circumstances, the appeal is devoid

of merits and the same is liable to be dismissed. Hence,

he prays for dismissal of the appeal.

38. Learned counsel placed reliance on the

decision of the Hon'ble Apex Court in Ashok Kumar &

Others Vs. State of Hariyana & Others3 in support of

his contention that the interim order passed by the trial

(2007) 3 SCC 470

Court was not in force after 28.11.2022 when the matter

was advanced.

39. In view of the rival contentions taken by the

parties to lis, the point that would arise for my

consideration is;

"Whether the impugned order passed by the trial Court on I.A.No.II calls for interference by this Court? What order?"

My answer to the above point is in the 'Affirmative'

for the following;

REASONS

40. The appellant-plaintiff, filed the suit

O.S.No.5882/2022 before the trial Court against

defendant Nos.1 to 5 seeking the relief of (a) Declaration

that the proposed amendment as per the Circular dated

18.08.2022 of defendant No.1 to amend the Constitution

of the Church of South India in terms of Clause 12(A)

Chapter-V, whereby the retirement age of the Bishops is

sought to be extended from the age of 67 years to the

age of 70 years as being mala-fide, not in good faith and

consequently, null and void; (b) To grant permanent

injunction restraining the defendants from proceeding to

amend Clause 12(A) of Chapter-V of the Constitution of

the Church of South India by extending the age of

retirement of Bishops from 67 years to 70 years as

proposed; (c) Alternatively, to direct that any process of

gratification of the proposed amendment to the

Constitution of the Church of South India in terms of

Clause 12(A) of Chapter-V, whereby the retirement age

of Bishops is sought to be extended from 67 to 70 years

be held after the expiry of 6 months from the date of the

suit.

41. While filing the suit, the application I.A.No.II

under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC

was also filed seeking grant of Ad-interim order of

temporary injunction restraining defendant No.3-the

Karnataka Central Diocese Council from proceeding with

the scheduled special meeting of Diocesan Councils on

12.09.2022 during the pendency of the suit in the

interest of justice.

42. It is the specific contention of the plaintiff

before the trial Court that the Bishops working under

defendant No.1 would attain superannuation at the age

of 67 years, but to accommodate few Bishops, who are

at the verge of their retirement, defendant No.2 has

proposed an amendment to the Constitution of the

Church of South India increasing the age of retirement of

Bishops from 67 to 70 years. An amendment to that

effect was proposed and Synod passed a resolution

accepting the proposed amendment on 07.03.2022. A

communication dated 18.08.2022 was received by the

Karnataka Central Diocese Council to ratify the said

resolution. If such resolution is ratified accepting the

proposed amendment by 2/3rd of Diocesan Councils,

that will enable the Synod to proceed with the

amendment proposed by it.

43. It is also stated that to get this exercise done

i.e., getting the ratification by at least 2/3rd of Diocesan

Councils, the period of 2 years is prescribed under the

Constitution of Church of South India. But to

accommodate the outgoing Bishops who are at the verge

of their retirement, the defendants are said to be in

haste to ratify the resolution and to accept the proposed

amendment. Therefore, it is stated that even though the

resolution was passed on 07.03.2022 by Synod, it has

sent a communication on 18.08.2022 seeking ratification

of the resolution dated 07.03.2022. Defendant No.3

who is required to consider the said resolution was in

haste, to ratify the same, conveyed the meeting on

12.09.2022. The plaintiff approached the trial Court by

filing the suit on 09.09.2022 and on the same day, the

trial Court passed the order allowing I.A.No.II filed by

the plaintiff and restraining defendant No.3 from

conducting the special meeting of Diocesan Councils on

12.09.2022 till one week.

44. It is pertinent to note that while passing the

said order, the trial Court specifically held as under;

"As per the notice, meeting is going to be held on 12.09.2022 at 10.30 a.m., in the said meeting the subject matter for ratification is going to be taken only on the retirement age of the Bishop. If said meeting is held and decision is taken, definitely the very purpose of suit will be defeated. Considering the above urgency without expressing any opinion on merits of I.A., I am of the opinion that, it is just and proper to allow I.A.No.II."

45. The matter was posted to 12.09.2022 and

thereafter to 15.09.2022. On 15.09.2022, the interim

order was again extended till the next date and the

matter was posted to 15.10.2022. On 15.10.2022, the

interim order was again extended till the next date of

hearing and the matter was posted to 04.02.2023.

Meaning thereby, the trial Court extended the interim

order granted earlier from 15.10.2022 till 04.02.2023.

46. On 28.11.2022, the case was advanced at the

instance of the learned counsel for defendant Nos.3 and

5 who have filed an application under Order IX Rule 7 of

CPC seeking to set side the ex-parte order. The matter

was again posted on 30.11.2022 and once again to

09.12.2022 and ultimately, the impugned order

dismissing I.A.No.II was passed on 03.01.2023. It is

pertinent to note when the suit was advanced on

28.11.2022, the interim order granted earlier till the next

date of hearing i.e., 04.02.2023 was not extended

further by passing any order.

47. Now the question arises as to whether the

order dated 15.10.2022 extending the interim order till

the next date of hearing and fixing the next date of

hearing as 04.02.2023 would expire on 28.11.2022,

when the matter was advanced to consider the

application filed by some of the defendants. When the

trial Court with specific words stated that the interim

order is extended till the next date of hearing and the

next date of hearing was fixed as 04.02.2023, by no

stretch of imagination, it could be contended that on

advancing the matter in between, the interim order

passed on 15.10.2022 expires. Obviously, the plaintiff

has not sought for extension of the interim order once

again on 28.11.2022, 30.11.2022, 09.12.2022,

12.12.2022, 16.12.2022 and 17.12.2022, till passing of

the order on 03.01.2023. If the defendants were under

such impression, they could have sought for clarification

from the trial Court, the trial Court also could have

clarified with regard to extension of the interim order on

advancing the matter.

48. Learned counsel for the appellant placed

reliance on Govinda Bhagoji Kamble and others (supra),

wherein the Maharastra High Court considered a similar

situation where in the meanwhile, Ad-interim order was

granted by the High Court after issuance of notice to the

contesting parties. The question arose before the High

Court of Maharastra as to whether the phrase 'in the

meanwhile' used in the order granting stay would mean

'till happening of a particular event or till a particular

date'. The Co-ordinate Bench of Maharastra High Court

referring to the meaning 'in the meanwhile' held that the

word would mean till happening of a particular event or

until something expected happens. It is also held that

whenever the Court intends to grant Ad-interim relief

limited to a particular date, it is always mentioned in the

order very specifically that the Ad-interim order happens

till particular day. When the Court issue notice and grant

Ad-interim relief in the meanwhile, it was obviously

intend that the Ad-interim relief would operate till the

application is heard by the Court after service of notice.

49. Learned counsel for the appellant also placed

reliance on the decision of the High Court of Madras in

Dr.T Gnanasambanthan's case (supra), wherein, the Co-

ordinate Bench of High Court of Madras considered the

principle of law 'actus curiae neminem gravadit' - No

one shall be prejudiced by an act of Court. It is held that

there can be an act of omission or an act of commission.

It is held that non-listing of an application for vacation of

the interim order, if not due to the fault of any of the

parties, but due to the fault of the Registry of the Court,

it would fall under the category of 'act of omission'. No

law can be so observed as to say that, if the Court is at

fault, the parties shall suffer. I do not think that any

case law is required to support the proposition that an

act of Court shall not prejudice the party.

50. In the present case, since the interim order

was extended till the next date of hearing and the next

date of hearing was fixed as 04.02.2023, the plaintiff has

not moved the Court for extension of the interim order

on advancing the case by the defendants on 28.11.2022.

The defendants have also not thought it fit to seek

clarification as to the intention of the Court regarding the

operation of the interim order, when the case was

advanced. The Court had also not foreseen a situation

that the defendants would interpret the word 'till next

date of hearing' as the date on which the matter was

advanced at the instance of the defendants.

51. When the trial Court vide order dated

09.09.2022 which is extracted above held that, if the

meeting is held and decision is taken, definitely the very

purpose of the suit will be defeated. Considering the

above urgency, without expressing any opinion on merits

on I.A.No.II, the trial Court felt it just and proper to

allow I.A.No.II and the interim order restraining

defendant No.3 from conducting the special meeting of

Diocesan Councils was granted till one week and the said

order was again extended on 15.09.2022 and on

15.10.2022 fixing the next date of hearing as

04.02.2023.

52. Learned counsel for the respondents placed

reliance in Ashok Kumar (supra) to contend that the

interim order granted on 15.10.2022 expired on

28.11.2022. The Hon'ble Apex Court in Ashok Kumar

(supra) considered a situation where the interim order of

injunction was issued by the Court was extended from

time to time till a particular date. Thereafter, the interim

order was not extended. Under the facts and

circumstances of the said case, it was held that even in

the absence of express order vacating the injunction, the

interim order was not extended. The phrases 'in the

meantime' and 'till then' used in the order were taken

into consideration and held in para 12 as under:

12. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.

53. The facts and circumstances of the present

case is entirely different. The contention of the learned

counsel for the respondents that even though the interim

order was extended till next date of hearing by fixing the

next date on 04.02.2023, on advancing the matter to

28.11.2022 at the instance of defendant Nos.3 and 5,

the interim order stands expired. When the interim

order was extended on 15.10.2022 till next date of

hearing and fixed the date on 04.02.2023, for all

practical purpose, the next date of hearing will be

04.02.2023, but not the date on which the suit was

advanced.

54. Therefore, I am of the opinion that the interim

order granted on 15.10.2022 was in operation till

04.02.2023. But in the meantime, on 03.01.2023, orders

on I.A.No.II was passed dismissing the application.

Therefore, till dismissal of I.A. No.II on 03.01.2023, the

interim order referred to above was in operation.

55. It is the contention of the appellant that a

notice dated 19.12.2022 was issued convening the

meeting of defendant No.3 on 21.12.2022 to ratify the

resolution passed by Synod and to approve the proposed

amendment to raise the age of retirement of Bishops.

This fact is not in dispute, but on the other hand, it is

categorically admitted by the defendants. It is also

admitted that on 21.12.2022, the meeting of defendant

No.3 was held and the resolution passed by Synod was

ratified and the proposed amendment was accepted.

This was exactly the apprehension of the plaintiff while

filing the suit and I.A.No.II seeking granting of

temporary injunction, restraining defendant No.3 from

proceeding with the meeting to be held on 12.09.2022

was filed.

56. Considering the apprehension raised by the

plaintiff and the materials that are placed before the

Court, the trial Court vide order dated 09.09.2022

passed the interim order, restraining defendant No.3

form conducting special meeting of Diocesan Councils on

12.09.2022 until one week. Admittedly, the said interim

order was extended on 15.09.2022 till the next date of

hearing and again on 15.10.2022, till the next date of

hearing i.e., 04.02.2023.

57. I have already held that the extension of the

interim order on 15.10.2022 till the next date of hearing

was in force till 04.02.2023, rejecting the contention of

the respondents that operation of the interim order came

to an end on 28.11.2022 when the matter was advanced

by defendant Nos.3 and 5 for the purpose of filing an

application. It is strange to note that defendant No.3

who kept quite till 18.12.2022, issued notice of meeting

on 19.12.2022 and convened the said meeting on

21.12.2022 to achieve its object of ratifying the

resolution passed by Synod for amending the

Constitution and raising the age of retirement of Bishops.

58. It is pertinent to note that 17.12.2022 was

the last working day for the Civil Courts in Karnataka

before winter vacation which commenced on 19.12.2022.

If the conduct of accused No.3 in suddenly issuing the

notice dated 19.12.2022 convening the meeting on

21.12.2022 i.e., within two days of the notice to ratify

the resolution passed by Synod is considered in the back

drop of commencement of the winter vacation, the

intention of defendant No.3 was apparent i.e. to defeat

the right of the plaintiff at any cost. Defendant No.3 has

no other explanation to act so swiftly in accepting the

proposed amendment by ratifying the resolution passed

by Synod. The only reason defendant No.3 was having to

act swiftly was to achieve its object of accepting the

same by ratifying the resolution and thereby, putforth

the contention that the suit has become infructuous.

59. When the parties have appeared before the

Civil Court and the lis is pending for consideration, the

parties are bound to follow the minimum etiquette of

respecting the order of the Court. If there is any

confusion regarding the orders passed, to seek

clarification then and there before proceeding further.

The order dated 15.10.2022 extending the interim order

till the next date of hearing and fixing the date of next

hearing on 04.02.2023 makes it clear that the Court had

extended the interim order till 04.02.2023 and it has not

expressed its intention to withdraw the interim order on

28.11.2022 on advancing the matter to enable the

defendants to file application.

60. If the conduct of defendant No.3 in convening

the meeting during winter vacation with two days notice

and holding it on 21.02.2022 makes the intention of

defendant No.3 very clear and no Court of law can accept

such conduct on the part of the parties to the litigation.

If such conduct on the part of the defendants is to be

accepted, that will give wrong signal to the litigating

public, who still repose confidence in the judicial system

and knock the doors of the Courts when they feel

helpless. Justification of such conduct would mean to

say that a party to the litigation can do whatever he likes

by interpreting the order of the Courts for his

convenience and walk free without any consequences.

61. Learned counsel for the respondents took a

contention that the trial Court has no jurisdiction to try

the suit and accordingly, it has dismissed I.A.No.II filed

by the plaintiff. The plaintiff in the present case sought

for the relief against defendant No.1, who is the highest

Authority to take decisions in the matter concerning the

entire South India including some parts of Srilanka and

defendant No.3 is confined to the State of Karnataka.

62. Section 20 of CPC deals with the jurisdiction

of the Civil Court for institution of the suits. Under this

Section, the suit is to be instituted where the defendant

or each of the defendants resides or carries on business

or where cause of action wholly or in part arises. The

contention taken by the plaintiff that defendant No.1

being the Supreme Authority to amend its Constitution

has to seek ratification of the resolution regarding the

proposed amendment from each of the Central Dioceses

Council. It is stated that there are 24 such Diocesan

Councils and Synod could approve the amendment of its

Constitution, only if 2/3rd of such Diocesan Councils ratify

the resolution approving the proposed amendment.

Therefore, atleast 16 Diocesan Councils shall ratify the

resolution passed by Synod, to enable it to bring about

the proposed amendment to effect. The Karnataka

Central Diocese Council- defendant No.3 is one such

Diocesan Council which is required to take a stand for or

against the proposed amendment. Holding of the

meeting to consider the resolution passed by Synod and

taking decision by defendant No.3 is an important step

either supporting or opposing the proposed amendment.

63. It is the contention of the plaintiff that the

defendants with ill-will and motive are proposing the

amendment to be brought into effect in a hasty manner

to enable few of the Bishops, who are at the verge of

their retirement to continue in office for three more

years, till they attain the age of 70 years. When such is

the cause of action pleaded by the plaintiff to bring about

the suit against the defendants, including defendant No.3

which is having its office and carrying on its business in

Bengaluru, primafacie it cannot be said that the trial

Court has no territorial jurisdiction to try the suit.

64. Learned counsel produced the copy of the

order dated 06.12.2022 passed by the Hon'ble Apex

Court in Transfer Petition(C) No.2379/2022, whereunder

the transfer petition filed by the Church of South India

seeking transfer of the case came to be dismissed.

Similarly, the order dated 22.02.2023 passed in similar

transfer petition (Civil) No.1605/2022, the Hon'ble Apex

Court again dismissed the petition basing on the order

passed in Transfer Petition No.2379/2022. Learned

counsel for the appellant contended that even though an

attempt was made to seek transfer of the suits pending

in Telangana to the Courts at Madras, the same was not

entertained by the Hon'ble Apex Court. Meaning

thereby, the suit that is pending before Telanagana was

permitted to be tried there itself. Under such

circumstances, when a similar suit is filed in Bengaluru

and when the defendants have not thought it fit to seek

transfer of the present suit to any other Courts, it cannot

be held that the trial Court has no territorial jurisdiction

to entertain the suit.

65. In view of the discussions held above, I am of

the opinion that the plaintiff before the trial Court has

made out a primafacie case. Balance of conveniance is

also in favor of the plaintiff and if the intended resolution

is passed by defendant No.3, the plaintiff will suffer

imperable loss. Therefore he is entitled for temporary

injunction against defendant No.3 as prayed in I.A.No.II.

66. The further development taken place during

the vacation for the trial Court i.e., defendant No.3

proceeding to hold the meeting in a hasty manner and

passed the resolution as required, is to be taken into

consideration, in the light of the finding that the plaintiff

is entitled for temporary injunction against defendant

No.3. This Court vide order 12.01.2023 considered the

representation made by learned counsel for the appellant

in the light of holding the meeting of defendant No.3 on

21.12.2022 and taking decision, directed the

respondents not to precipitate the matter till the next

date of hearing. The order dated 09.02.2023 passed by

this Court makes it clear that the interim order passed by

this Court on 12.01.2023 is modified and it is held that

any decision taken pursuant to the meeting held on

21.12.2022 is subject to the result of this appeal and

parties cannot claim any equity. Therefore, since the

decision taken by defendant No.3 in the meeting that

was held on 21.12.2022 was in violation of the interim

order granted by the trial Court, the same cannot have

any effect in the eye of law and the status-quo-ante is to

be restored.

67. I have gone through the impugned order

passed by the trial Court. It has held that the trial Court

has no teritorial jurisdiction. But strangely, it proceeded

to consider the contention of the parties on merits and to

dismiss I.A.No.II. It has not returned the plaint for

presentation before the proper Court. Admitedly, the

suit is still pending before the trial Court.

68. The observation of the trial Court that Synod

is the highest Authority vested with the power to amend

its Constitution cannot be denided, but vesting of power

to amend the Constitution is entirely different from the

validity or otherwise of the proposed amendment. The

observation of the trial Court that the decision of Synod

will not be effected by decision of defendant No.3 alone

is perverse, since admitedly, the resolution adopting the

amendment passed by Synod is to be ratified by atleast

2/3rd of Diocesan Councils, including defendant No.3.

Its further observation that the plaintiff has not made

clear as to how many Diocese Councils are for and

against the proposal is also perverse, since the trial

Court was not concerned about such numbers while

passing any orders either in favour or against the

plaintiff. Therefore, I am of the opinion that the

impugned order passed by the trial Court dismissing

I.A.No.II is perverse, illegal and the same is liable to be

set aside.

69. Hence, I answer the above point in the

'Affirmative' and proceed to pass the following;

ORDER

(i) The appeal is allowed with costs.

(ii) The impugned order dated 03.01.2023 passed in O.S.No.5882/2022 by the learned XXII Additional City Civil & Sessions Judge, Bangalore City (CCH-7), is hereby set aside.

(iii) Defendant No.3 is restrained temporarily from taking any decision to ratify the resolution passed by Synod and to accept the proposed amendment, till disposal of the suit. If any decision is already taken in the meetnig that was held on 21.12.2022 by defendant No.3, the same will not have any effect and the same is to be ignored. Thus, the status-quo-ante is restored.

Sd/-

JUDGE PN