Karnataka High Court
Hope Evangelical Lutheran Church Trust ... vs Nimalan Chakravarthy Dass on 2 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2nd DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.2806/2023 (CPC)
BETWEEN:
1. HOPE EVANGELICAL LUTHERAN
CHURCH TRUST (R)
NO.262/72, MISSION COMPOUND
DODDANNA NAGAR,
KAVAL BYRASANDRA,
R.T. NAGAR POST,
BANGALORE-560032
REPRESENTED BY ITS PRESIDENT
MR. KENNEDY
AGED ABOUT 58 YEARS. ... APPELLANT
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI P.SRINIVAS KUMAR, ADVOCATE)
AND:
1. NIMALAN CHAKRAVARTHY DASS
AGED ABOUT 40 YEARS,
N.M.LAYOUT, NEAR IYENGAR BAKERY,
BANGALORE-560022
2. EDWARD JNANADAS
AGED ABOUT 45 YEARS,
N.M.LAYOUT, NEAR IYENGAR BAKERY,
BANGALORE-560022
3. REV STEPHEN JACKAYYA
AGED ABOUT 63 YEARS,
NO.B-10, SREERAMPURA
2
PERWINKAL APARTMENT,
ROYAL ENCLAVE
BENGALURU-560064. ... RESPONDENTS
(BY SRI PRABHUGOUD B. TUMBIGI, ADVOCATE FOR R1 TO R3)
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 18.04.2023 PASSED ON
I.A.NO.2 IN O.S.NO.8268/2022 ON THE FILE OF THE I
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH.NO.2 REJECTING THE I.A.NO.2 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.01.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
1. Heard the learned counsel for the appellant and
the learned counsel for the respondents.
2. This appeal is filed challenging the dismissal of
the application i.e., I.A.No.2 filed in O.S.No.8268/2022
under Order 39 Rule 1 and 2 R/w Section 151 of CPC
praying for grant of interim order of temporary injunction
restraining the defendants, their heirs, henchmen,
representatives or any persons claiming under them from
interfering with the day today affairs of the Church and
Church proceedings in the suit schedule property in any
manner till pending disposal of the suit.
3. The factual matrix of case of the plaintiff before
the Trial Court while seeking the relief of permanent
injunction, it is contended that the plaintiff is registered
Trust in the name and style of Hope Evangelical Lutheran
Church Trust having its address as No.260/72, Mission
compound, Doddanna Nagar, Kaval Byrasandra, R.T.Nagar
Post, Bengaluru vide Trust deed dated 12.09.2008 and the
same was registered in the office of Sub-Registrar, Hebbal,
Bengaluru. The plaintiff also relied upon the rectification
deed of the said Trust dated 28.03.2011. The plaintiff Trust
is represented by its President Kennedy. The Trustee of the
plaintiff Trust has appointed the President Mr.Kennedy to
authorize to file the above case to safeguard the interest of
the plaintiff Trust. It is contended that the property bearing
Sy.No.27/3, presently Sy.No.260/72 which is referred
above, measuring East by 125 feet, West by 151 feet,
North by 280 feet and South by 272 feet totally measuring
38088 square feet, consisting of Church building, old school
building and new school building which is morefully
described in the schedule. The khata is standing in the
name of the plaintiff Trust. The plaintiff Trust is looking
after day today affairs of the Church and school. The
plaintiff Trust has conducted various programmes such as
marriage, prayers in the Church. The plaintiff Trust has
appointed Pastor and conducting prayers in the Church. The
plaintiff Trust has been paying to the Pastor and workers in
the said Church. The records are also maintained to that
effect. The plaintiff is a private Trust and not associated
with anybody and or any Trust.
4. It is contended that when such being the case,
the defendants who are utter strangers to the schedule
property are illegally trying to interfere with the day to day
affairs of the schedule property and Church activities on
18.12.2022. The plaintiff has resisted the illegal acts of the
defendants with the intervention of well wishers, elders and
friends. There is a threat and complaint was lodged and the
Police have advised the plaintiff to approach the civil Court
as the matter is civil in nature. Hence, the plaintiff has filed
the suit and sought the interim relief on the ground that the
defendants are very powerful persons in the area and they
have got men and money at their back and also having
assistance of the antisocial elements and the same is
repeated in the affidavit filed in support of the application
filed under Order 39 Rule 1 and 2 of CPC.
5. In pursuance of suit summons, the defendants
have appeared and filed a memo stating to adopt the
written statement filed by the defendant No.3 as objections
to I.A.No.2. In the written statement, it is contended that
the suit itself is not maintainable and also contended that
the plaintiff Trust represented by its President Mr.Kennedy
and also his own brother claiming President of the Trust on
the capacity, who is claiming President of the said Trust
filed on 09.12.2022 in O.S.No.26943/2022 for the relief of
permanent injunction against these defendants, the suit
pending before CCH-20, Mayohall Unit, Bengaluru. The said
suit was withdrawn by filing withdrawal memo. The plaintiff
and his family members are created their own Trust without
knowledge and consent of the defendants Church office
bearers and the Church members. The said plaintiff and
family members are tried by one or other way to knock
away the defendant Church property by creating Trust in
the same name and style of defendant Church i.e., Hope
Lutheran Church and hence, the suit is liable to be rejected
and the same is defective. It is also contended that the
defendants are the lawfully elected office bearers, who are
authorized and looking after the Church activities,
administration and property inside the Church premises as
per bye laws and its constitutions of the IELC Church. The
plaintiff Trust is no way connected to the Church functioning
in the name of Hope Lutheran Church at Sy.No.27/3 owned
and managed by the defendant Organization, the IELC
(India Evangelical Lutheran Church). It is also contended
that the suit is liable to be dismissed under Order 7 Rule 11
of CPC. It is contended that with dishonest intentions to
trespass, interfere and indulge in the illegal acts to forcibly
take over the administration of the Church by Mr.Kennedy
and his group and thereby, to knock away the valuable
property of the Church, the present suit is filed with an
ulterior motive.
6. It is admitted that the plaintiff Trust is a
registered Trust, without prejudice to the above contentions
and appointment of the Mr.Kennedy as President is created
and fabricated. The alleged authorization letter is not issued
by the competent authority. The khata obtained by
misrepresentation and misleading the BBMP officials as per
the report of the Assistant Revenue Officer, BBMP, Queen's
Road Office and the katha is ordered for cancellation. The
very contention that the plaintiff Trust is looking after the
affairs of the Church and school is baseless and allegation
that the plaintiff Trust has appointed Pastor and conducting
prayers in the Church is denied. The defendants also denied
that the defendants are utter strangers to the schedule
property and denied entire averments made in the plaint.
7. The defendants contend in the written statement
that true facts of the case that the Church is functioning in
the name of Hope Evangelical Lutheran Sabe (Church), now
known as Hope Lutheran Church (IELC) and the same is
functioning under the Constitution and bye laws of the year
1959 and now as amended in the year 2022. The day today
affairs of Church and school buildings are carried out by the
Church Pastor and the Church elected committee as per
Church bye-laws and regulations. The 2nd defendant Edward
Gnana Dass is elected as the Secretary and the 1st
defendant Nimalan Chakravarthi Dass is appointed as a
co-ordinator. That on 04.12.2022 Sunday, the Pastor
organized an oath taking ceremony for the newly elected
office bearers of the Church and invited all well wishers.
The ceremony was organized with the protection of D.J Halli
Police Station. At that time, Mr.Kennedy is an ex-office
bearer of Hope Lutheran Church -IELC during the year
2013-15, he along with his group of men unlawfully and
illegally disturbed the oath taking event and argued the
Police with false and frivolous information. In view of the
same, oath taking ceremony was postponed to next day on
the request of the Police. That on 11.12.2022, again when
the Pastor Rev.R.Stephen Jakayya went to the Church for
his regular duty to conduct the worship service, the Pastor
was forcibly blocked, pulled and was physically handled and
attacked by Mr.Kennedy and his group of men mixed with
some local goondas. Immediately, the Church Pastor
Rev.R.Stephen Jakayya went to the Police Station and
lodged a written complaint to the D.J Halli Police Station.
The Police warned Mr.J.Kennedy and his group of men and
directed to prove their rights, if any, legally and not to
disturb the peaceful environment in the Church. Thereafter,
the suit in O.S.No.8268/2022 is filed with dishonest
intention by misrepresentation of fact. The motive of the
plaintiff is to somehow or the other gain illegal entry into
the administration and affairs of the Church.
8. It is also contended that Mr.J.Kennedy and his
father by name Mr.N.John and his sons had involved in the
Church land grabbing acts owned by IELC at Sy.No.27/3
and were also involved in documents forgery act against
IELC Church. The schedule property is in the name of the
Hope Evangelical Lutheran Sabe by virtue of purchase vide
registered sale deed dated 20.05.1949 is the Ancestral
Mission property called Missouri Evangelical Luthern Church
as per the 1959 Constitution and bye laws as amended in
the year 2022. The day to day affairs are carried by the
elected Church committee of IELC- Hope Lutheran Church.
9. It is contended that the administration of the
IELC Head office from 2018 to 2022 was under the control
of Justice D.Hariparanthaman (Retd.). There was no IELC
elected Church committee functioning during this period.
After the election, direction to all IELC Churches, the
Church committee election of Hope Lutheran Church, was
held and new Church committee was formed in Aug-Nov,
2022. During the absence of elected Church committee
inside the said Church, the ex-office bearer group led by
Mr.J.Kennedy and his brother Mr.J.Magiban and his family
associates formed illegal and unlawful assembly against the
Church regulations and forcibly involved themselves in
unauthorized functioning by taking the law on their own
against the Church regulations. Both father and son have
made several attempts to grab IELC Church and misusing
their ex-officio bearer of the Church. It is also contended
that suits are filed earlier and they didn't get any relieves
and now again one more suit is filed with an intention to
knock of the property.
10. The Trial Court having considered the pleadings
of the parties, formulated the points whether the plaintiff
has made out a prima facie case for grant of temporary
injunction as prayed in I.A.No.2 and whether the plaintiff
will be put to great hardship in the event of temporary
injunction is not granted and balance of convenience lies in
their favour. The defendants have also filed an application
vacating of interim order which is numbered as I.A.No.3
and the Trial Court answered point Nos.1 and 2 in the
negative and point No.3 in the affirmative and vacated the
temporary injunction.
11. Being aggrieved by the said order, the present
appeal is filed before this Court. The counsel appearing for
the appellant in his argument would vehemently contend
that the order passed by Trial Court is perverse, arbitrary,
illegal and contrary to the facts and circumstances of the
case. The Court below has not taken into consideration the
pleadings and documents produced by the
appellant/plaintiff. The Court below came to false conclusion
that the appellant has not produced any document to
establish plaintiff is the President of Trust as on the date of
the suit and vaguely dismissed the I.A.No.2 without
providing any opportunity to the plaintiff to establish his
claim in the suit. The Court below blindly believed the
version of the defendants/respondents are true without
looking into the crux of the case. It is the respondents who
are trying to interfere with the day to day affairs of the
plaintiff Trust and respondents have deliberately
suppressed the real and material facts and the impugned
order requires interference.
12. The counsel also in his argument would
vehemently contend that the Trust was formed in the year
2008 and the rectification deed was also registered on
28.03.2011 and also other deeds dated 25.10.2014,
25.03.2013 by executing a rental agreement and rental
agreement was also renewed in the year 2009 and 2013
and also on 01.01.2022. The counsel would vehemently
contend that the khata stands in the name of the
plaintiff/appellant and tax paid receipts are also produced,
the defendants are not trustees. The defendant No.3 is a
priest as claimed by them. They have not been appointed
by appellant/plaintiff. The defendants have created the
documents. The counsel also would vehemently contend
that even sale deed of the year 1949 also discloses while
purchasing the property in the name of Mr.N.John, the
same was purchased. The counsel also would vehemently
contend that Trust deed dated 12.11.2020 is also produced
before the Court, the same is registered Trust and Trial
Court fails to take note of the material on record. The
counsel also produced the copy of the document of sale
deed dated 20.05.1949, the copy of the Trust deed dated
12.09.2008, the copy of the rectification deed dated
28.03.2011, the copy of the amendment of Trust deed
dated 25.10.2014, the copy of the rental agreements dated
12.04.2009, 28.02.2013, 10.08.2017, 22.09.2022 and
01.01.2022, copy of the khata certificate and extract also
produced along with memo. The counsel referring these
documents would vehemently contend that these
documents clearly establishes the plaintiff Trust managing
the affairs of the Church and also maintaining the school
and Church and the defendants are interfering with the
possession of the plaintiff/appellant and the Trial Court fails
to consider the same.
13. On the other hand, the counsel appearing for the
respondents in his argument would vehemently contend
that the father of the plaintiff has filed earlier suit in
O.S.No.6747/2009 claiming in his individual capacity and
the same is a private Trust and they are managing the
affairs. The counsel would vehemently contend that both
the I.As' filed by the father of the plaintiff in the said suit
and they are rejected. The reasons are assigned in
paragraph Nos.11 and 12 of order of the Trial Court and
discussion was made in detail and the said suit was
withdrawn. The counsel also would vehemently contend
that the M.F.A is also filed against the rejection of I.As' and
the same was dismissed by giving liberty to approach the
committee. The counsel would vehemently contend that in
view of the recommendation of the committee, the father of
the plaintiff is continued as ordinary member. The counsel
also would vehemently contend that the father of the
plaintiff was also expelled and contend that one Shekhar as
President has also filed the suit in O.S.No.26943/2022 and
the same was also withdrawn. Now, filing the present
appeal claiming the plaintiff as President seeking the relief
of permanent injunction and their family members were
unsuccessful in getting any relief in earlier suit.
14. The counsel in support of his arguments also
relied upon the documents along with memo the India
Evangical Luthran Church (IELC) bye-laws, sale deed dated
16.05.1949, agreement entered by the Trust being a owner
for construction of parishhall, letters showing payments and
plan, the copy of the tax paid receipt, the copy of the letter
showing expulsion of the father of the appellant, the copy of
the letter of the appeal committee showing to continue the
father of the appellant as ordinary member on his request,
the copy of the letter showing Stephen Jakayya having
appointed full time Pastor, the copy of the letter showing
Stephen Jakayya having appointed as incharge Pastor, the
copies of the name of the elected office bearers and
positions, the copy of letter of the head office confirming
the elected office bearers, the copy of the acknowledgment
with compliant and statement of the appellant to the police,
the copy of the photo breaking the keys by the
respondents, the copy of the created trust deed of the
appellant, the copy of the interim orders in
O.S.No.6747/2009, the copy of the order dated 30.03.2010
passed by this Court in M.F.A.No.728/2010, the copy of the
letter of the appeal committee showing father of the
petitioner is only a ordinary member, the copy of the order
sheet in O.S.No.6747/2009 is produced and the copy of the
proceedings of the BBMP is also produced for cancellation of
the khata.
15. The counsel referring these documents would
vehemently contend that though suits were filed in the year
2009, till date they did not get any relieves and still they
are making efforts to grab the property by creating
documents. The Trial Court taken note of the same, rightly
rejected the application. Having heard the appellant's
counsel and also the counsel appearing for the respondents,
point that would arise for the consideration of this Court
are:
1) Whether the Trial Court committed an
error in dismissing the I.A.No.2 and
whether it requires any interference?
2) What Order?
POINT Nos.1 and 2:
16. Having heard the appellant's counsel and also
the counsel appearing for the respondents, it is the claim of
the plaintiff that the plaintiff are the Trustees and they have
formed the Trust in the year 2008. Thereafter, rectification
deeds are also came into existence and these agreements
are also placed before the Court contending that they are
taking care of affairs of the suit schedule property Church
and school and defendants are making an attempt to
interfere with their possession or running of Church, school
and they are the utter strangers.
17. On the other hand, it is the contention of the
respondents that earlier suits are also filed by the father of
the plaintiff and he was unsuccessful and also contend that
being aggrieved by the order of the Trial Court in rejection
of I.As' filed by the father of the plaintiff approached this
Court and this Court dismissed the M.F.A and liberty is
given to approach the committee. The counsel appearing
for the respondents brought to notice of this Court that
Trust was formed in the year 1959 and the same is not
disputed by the plaintiff and the property was purchased on
16.05.1949 and purchasing of the property in the year
1949 is also not in dispute. The father of the plaintiff
Mr.N.John is also one of the Trustees along with others
D.Jayaraj and M.Munivel have purchased the property. The
plaintiffs are claming that they have formed the Trust in the
year 2008 and they are managing the affairs of the plaintiff
Trust. I have already pointed out that earlier the father of
the plaintiff has filed the suit and subsequently, the same
was withdrawn and also interim application filed in the said
suit by the father of the plaintiff i.e., I.A.No.2 was also
dismissed. An appeal was also filed before this Court.
18. Having perused the order passed by this Court
dated 30.03.2010, this Court made an observation that
impugned order does not call for any interference, however
it is also made it clear that the respondents shall furnish all
the necessary details to the appellants for approaching the
appeal committee. If any, preferred by the appellants, be
considered by the respondents in accordance with the bye
laws applicable to the respondents IELC. The dismissal of
the appeal will not come in the way of the matter being
dealt with the appeal committee in accordance with the
rules and regulations governing the 1st respondent. Having
perused this order, it is very clear that an observation is
made that considered the case of the father of the plaintiff
in accordance with bye-laws applicable to the respondents
IELC. The respondents/plaintiffs also filed 1959 Constitution
and bye laws amended in the year 2022. Hence, it is clear
that 1959 IELC Constitution and bye laws are in existence.
19. It is also important to note that the plaintiffs
have also placed documents of payment for the
construction. It is important to note that a decision was
taken on 01.06.2009 that the Church council resolves to
expel N.John, P.Inbam and J.Mohan Kumar who have filed
the suit earlier in the year 2009 from Hope Lutheran Church
a unit of IELC with immediate effect.
20. It is important to note that in terms of the
appeal committee dated 29.07.2010 and as per the advise
of the appeal committee, Rev.J.Priestly Balasingh is advised
to take back Mr.N.John, P.Inbam and J.Mohan Kumar as
ordinary members of the Church. Further Rev.Priestly
Balasingh is authorized to conduct elections immediately
and inform to the undersigned. All the counter cases would
be withdrawn before the election. It is also the claim of the
defendants that the elections are conducted and office
bearers are appointed. There was a gap in between 2018 to
2022, subsequently the office bearers were also elected and
also specific pleading was made that while at the time of
taking oath, plaintiff and his supporters are interfered and
complaint was also given. The defendants have also
produced the documents and given the statements before
the Police. The photocopy of breaking the lock is also
produced. The defendants have also produced order sheet
in O.S.No.6749/2009. An application was filed by the
plaintiff's father on 22.11.2010 under Order 23 Rule 1 R/w
Section 151 of CPC to withdraw the suit with a permission
to file a fresh suit on the same cause of action. The other
records with regard to the BBMP records also produced for
having considered with regard to the cancellation of the
khata made in favour of the plaintiff.
21. It is also important to note that the Trial Court
while considering the application filed for the relief of
injunction taken note of the documents which have been
produced before this Court. Both the parties relied upon the
documents in paragraph No.14 including the Trust deed
dated 12.09.2008, subsequent rectification deed and also
the amendment of the Trust deed dated 12.01.2020. The
Trial Court also taken note that the plaintiff is claiming as
the President. The plaintiff Trust is a private Trust and also
taken note of the claim of the plaintiff that he is the
President and his own brother claiming as President of the
Trust on the same capacity filed the suit in
O.S.No.26943/2022 on 09.12.2022 for the relief of
permanent injunction. The said case was pending before
CCH-20, Mayohall Unit, Bengaluru. Subsequently, the same
was also withdrawn. The Trial Court also taken note of the
order sheet in O.S.No.26943/2022, the said suit is filed by
President - Shekhar on 09.12.2022. An application was
filed under Order 39 Rule 1 and 2 of CPC and also taken
note that earlier suit was filed in O.S.No.6747/2009. The
Trial Court also taken note of expelling the earlier plaintiffs
in O.S.No.6747/2009 in the year 2009, later as per letter
dated 29.07.2010 for considering them as ordinary
members of the Church. The Trial Court taking into note of
all these materials into consideration comes to the
conclusion that O.S.No.26943/2022 discloses that one
Shekhar represented as President of the plaintiff Church
who withdrew the suit on 11.01.2023, as on 11.01.2023
Mr.Shekhar was the President of plaintiff Church and
Mr.Kennedy was not the President. From the document
No.1 i.e., the minutes of Board meeting and resolution
dated 19.12.2022 shows that the said authorization was
given by the Secretary only to file the suit. The Trial Court
also taken note of the claim made by the plaintiff and
defendants. The Trial Court in paragraph No.17 taken note
that even the Trust deed produced by the plaintiff also
discloses that Mr.Kennedy was the President for the year
2020. After that also, no documents are placed to show
that mere 2022-23, Mr.Kennedy is the President,.
22. The Trial Court also taken note of the fact that
the Church is functioning in the name of Hope Evangelical
Lutheran Saba (Church), now known as Hope Lutheran
Church (IELC). The Trial Court also taken note of the Trust
was formed in the year 1949 and property was also
purchased vide sale deed dated 20.05.1949. No doubt the
contention of the appellant's counsel that Mr.John is one of
the Trustee in terms of the sale deed. The Court has to take
note of the bye laws and in terms of the bye laws, office
bearers of the Church should be elected.
23. It is also the case of the defendants that office
bearers are taking care of the Church and school. The BBMP
had cancelled the name of the plaintiff on the ground that
they got the khata in their name by giving false
information. When such being the case, very claim of the
plaintiff that khata stands in their name cannot be
accepted. The documents produced by the defendants is
also clear with regard to Pastor has been appointed and he
is taking care of the Church. The Trial Court in detail
discussed in paragraph Nos.16 to 21 and comes to the
conclusion that the plaintiffs are making claim, but, the
plaintiff Mr.Kennedy fails to establish his prima facie case
for grant of temporary injunction and also comes to the
other conclusion that on the other hand the defendants
Church has made out a prima facie case to vacate exparte
temporary injunction since the documents voluminous are
stands in the name of defendants from 1959 onwards i.e,.
formation of Trust and also purchasing of property. The
property is also purchased by the Trustees on behalf of the
Church. When such material are placed before the Court,
the Trial Court in detail passed an order. Hence, I do not
find any error committed by the Trial Court as contended by
the counsel appearing for the appellant. The Trial Court in
detail discussed the material on record and considered the
documents produced by the plaintiffs as well as defendants
in paragraph No.14 and taken note of the order passed by
the Trial Court in the earlier suit filed by the plaintiff's
father. The plaintiff's father was unsuccessful in the said
suit and also appeal was dismissed and liberty was given to
approach the committee. The committee was also taken
decision in the year 2010 that to continue them as only
ordinary members. When such being the case, in the
meanwhile Trust was also created by the plaintiffs and they
claiming and interfering with the affairs of the defendants.
Hence, I do not find any ground to interfere with the order
of the Trial Court to come to other conclusion. The appellate
Court must be very slow unless the order passed by the
Trial Court is unreasonable and capricious and only if orders
are reasonable and capricious, under such circumstances
the appellate Court can interfere with the findings of the
Trial Court and said circumstances is not warranted in the
case on hand.
24. In view of the discussions made above, I pass
the following:
ORDER
i) The Miscellaneous First Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
JUDGE
RHS
