Madras High Court
John Vincent vs M.N.John on 18 February, 2021
S.A.(MD)No.33 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.33 of 2015
1.John Vincent
2.Siluvaimuthu
3.Ashok : Appellants
Vs.
1.M.N.John
2.Diocese of Tirunelveli,
represented through its Bishop,
Tirunelveli – 627 002.
2.Convener Election Commission
of Diocese Tirunelveli,
Tirunelveli-627 002.
3.The Chairman,
Election Commission of Diocese Tirunelveli,
Tirunelveli – 627 002.
4.The Pastorate Chairman,
Kalakad Pastorate, Diocese of Tirunelveli,
Tirunelveli District.
5.The Chairman, South West Church Council,
Diocese of Tirunelveli, Tirunelveli.
6.Tirunelveli Diocesan Trust Association,
through its Treasurer,
Tirunelveli – 627 002 : Respondents
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S.A.(MD)No.33 of 2015
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to set aside the judgment and decree, dated 19.11.2014 made in A.S.No.36 of
2014 on the file of the Principal District Court, Tirunelveli, confirming the
judgment and decree, dated 30.04.2014 passed in I.A.No.416 of 2013 in
O.S.No.153 of 2013 on the file of the Principal Subordinate Court, Tirunelveli.
For Appellants :Mr.P.Santhoshkumar
For R1 :Mr.R.Manimaran
For R2 :Mr.M.Thirunavukkarasu
For R3 to R7 :Mr.G.Prabhu Rajadurai
****
JUDGMENT
This second appeal arises out of the proceedings in I.A.No.416 of 2013 in
O.S.No.153 of 2013 (O.S.No.194 of 2007 on the file of the District Munsif
Court, Nanguneri).
2.The suit was filed by two persons in a representative capacity on behalf
of the members of Diocese of Tirunelveli, seeking a declaration that the
elections held to the Pastorate Committee, Church Councils and the Diocesan
Council of the first defendant Diocese on 07.10.2007, 12.10.2007 and
20.10.2007 are null and void and for other consequential reliefs, viz,
appointment of a Commissioner to conduct the election and for permanent
injunction restraining the defendants 1 to 3 from conducting elections to the
Executive Committee, Sub Committees, Office of Lay Secretary, etc.
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S.A.(MD)No.33 of 2015
3.The respondents, upon appearance, filed an application in I.A.No.654
of 2013 seeking rejection of the plaint. Even during the pendency of the said
application, the appellants, who are third parties to the suit, filed an application
in I.A.No.416 of 2013 seeking restitution on the ground that the order of
injunction granted in I.A.No.739 of 2007 permitting elections were reversed by
this Court in C.R.P.(MD)No.1784 of 2007. According to the appellants, since
the order in I.A.No.739 of 2007 was set aside by the revisional Court, they
would be entitled to be restored to the position they occupied prior to
30.11.2007.
4.This application was resisted by the respondents contending that the
very suit itself is not maintainable and in any event, the period for which the
elections were held having expired and further elections having been held under
directions of this Court, the prayer for restitution is unconscionable.
5.The trial Court, upon a consideration of the fact that lead to the filing of
the petition, concluded that the period of election having expired and further
election having been held, the question of restitution does not arise. On the said
findings, the trial Court dismissed the application. The trial Court, by a separate
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S.A.(MD)No.33 of 2015
order, allowed the application for rejection of the plaint also. Aggrieved by the
rejection of the plaint, one of the plaintiffs in the suit filed an appeal in A.S.No.
35 of 2014. The petitioners in I.A.No.416 of 2013 filed an appeal in A.S.No.36
of 2014. Both the appeals were heard together and the appellate Court
dismissed the both appeals concurring with the findings of the trial Court.
Aggrieved, the appellants, who are the petitioners in I.A.No.416 of 2013, have
come up with this second appeal.
6.I have heard Mr.P.Santhosh Kumar, learned Counsel appearing for the
appellants and Mr.G.Prabhu Rajadurai, learned Counsel appearing for the
respondent 3 to 7.
7.Mr.G.Prabhu Rajadurai, learned Counsel for the respondents 3 to 7
would point out that the period for election itself having expired, nothing
survives in this appeal and there cannot be a restitution at the instance of the
persons, who are not parties to the suit. He would also point out that restitution
is impossible, since further elections have been held as per the direction of this
Court. Therefore, according to the learned Counsel for the respondents 3 to 7,
the very appeal has become infructuous.
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S.A.(MD)No.33 of 2015
8.Mr.P.Santhosh Kumar, learned Counsel for the appellants, would,
however, contend that the appeal cannot be termed as infructuous. He would
claim that the respondents have made several appointments during the pendency
of these proceedings in contravention of the order of injunction granted by this
court and therefore, those appointments will have to be set aside by exercising
the power of restitution. It is also the submission of the learned Counsel for the
appellants that the first respondent Bishop was prosecuted for contempt and this
Court has dropped the further proceedings by accepting the unconditional
apology offered by him.
9.I have considered the rival submissions.
10.The following substantial questions of law were framed at the time of
admission:
"i. Whether the courts below are correct in not entertained the petition
filed under Section 144 of the Civil Procedure Code as the necessary
ingredients were fulfilled in the manner known to law?
ii) Whether courts below are correct in rejecting the claim of the
appellants especially the findings of the trial court as 'subsequent election will
be subject to the final order" has been set aside by virtue of the order passed in
the Civil Revision Petition by this Hon'ble Court?
iii) Whether the courts below are correct in rejecting the claim of the
appellants on the grounds that by virtue of the subsequent elections the prayer
of the sought for in the petition is "infructuous" against the finding rendered by
the trial Court is set aside by this Hon'ble Court and the same has been made
absolute?
iv) Whether the judgment and decree of the Courts below are vitiated,
especially when there is no oral or documentary evidence adduced by both the
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S.A.(MD)No.33 of 2015
parties?
v) Whether the Judgment and Decree of the Courts below are vitiated
by its failure to consider relevant evidence on record?”
11.In the light of the subsequent developments and the vacation of the
interim order of injunction granted by this Court, I do not think these questions
of law would arise for consideration. The relief prayed for is restitution to place
members of the Diocese of Tirunelveli in a position, which they occupied prior
to 30.11.2007. That relief cannot be granted as of now. It is on record that
several elections have been conducted subsequently and new set of office
bearers have taken over and elections were conducted pursuant to the orders of
this Court under the supervision of Officers appointed by this Court. Hence,
strictly nothing survives in this appeal. More over, the order rejecting the
plaint, which was confirmed in A.S.No.35 of 2015, has become final and the
same has not been challenged. The same analogy, which the appellants invoke,
namely, the suit being one for representative capacity, they can seek restitution
being third parties and they can prosecute the appeal, would apply to the order
rejecting the plaint also. An order rejecting the plaint is binding on the
appellants, since it is an order passed in a suit filed in a representative capacity.
12.The claim of the learned Counsel for the appellants that the
appointments made will be subject to the result of the suit or appeal cannot be a
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S.A.(MD)No.33 of 2015
ground for considering the appeal arising out of an application for restitution,
which has become impossible. I, therefore, conclude that the appeal itself is
infructuous and no relief could be granted to the appellants in this appeal. The
appeal, therefore, fails and it is accordingly, dismissed. However, there will be
no order as to costs. This will not prevent the appellants from taking steps to
have appointments set aside, if they are able to demonstrate that the
appointments have been made in violation of the Rules or the procedure
contemplated under the by-laws of the Diocese. Consequently, connected
miscellaneous petition is closed.
Index: Yes/No 18.02.2021
To
1.The Principal District Judge, Tirunelveli.
2.The Principal Subordinate Judge, Tirunelveli.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.33 of 2015
R.SUBRAMANIAN, J.
cmr
Judgment made in
S.A.(MD)No.33 of 2015
18.02.2021
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