Madras High Court
Holy Family Church vs Alber M.Mathiarasu on 11 January, 2021
SA(MD)No.708 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
SA(MD)No.708 of 2020
and CM P(MD) Nos.7294 and 7284 of 2020
1.Holy Family Church,
Rep. By its President,
M.Jesu Raja Rethnam
2.Holy Family Church Trust,
Rep.by its Secretary
M.Mariya Antony Xavier,
S/o Mariya Mark ...Appellants/Respondents 1 & 2/
Plaintiffs 1 & 2
Vs.
1.Alber M.mathiarasu
2.D.Juliyan
3.B.Jesuph Antony
4.FSwamidas
5.S.Leone Jesu Retam
6.G.Michael Antony ..Respondents 1 to 6/Appellants 1 to 6
Defendants 3 to 8
7.Holy Famiy Church Trust,
Rep by its Treasurer
J.Apolin Charles .. 7th Respondent/3rd Respondent/
3rd Plaintiff
8.The Most Rev.Nazarene Soosai,
The Bishop,
Kottar R.C.Diocese,
Bishop House,
Nagercoil – 629 004
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SA(MD)No.708 of 2020
Nagercoil Village,
Asaripallam Road,
Agasteeswaram Taluk,
Kanyakumari District. ...8th Respondent/4th Respondent/1st Defendant
PRAYER:- Second Appeal filed under Section 100 of Civil Procedure
Code against the Judgment and Decree dated 17.12.2020 passed by the
Principal District Judge, Kanyakumari District at Nagercoil dated
17.12.2020 in A.S.No.2 of 2020 thereby reversing the judgment and decree
passed by the learned I Additional Subordinate Judge, Nagercoil dated
2012.2019.
For Appellants : Mr.M.Vallinayagam
Senior Counsel
for Mr.N.Dilip Kumar
For R1 to R6 : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.G.Anto Prince
For R8 to R19 : Mr.T.Arul
Advocate Commissioner
JUDGMENT
The dispute in this appeal relates to management of a Church called
Holy Family Church between two groups of individuals, who claimed to
have been duly elected. The suit in O.S.No.135 of 2019 was filed seeking a
decree declaring that the plaintiffs are validly elected office bearers of the
Church Trust for the period from January 2019 to January 2020. An
ancillary declaration was also sought for regarding disqualification of the
defendants 3 to 5 in the year 2013.Consequential permanent injunction was
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SA(MD)No.708 of 2020
sought for to restrain the defendants 3 to 5 from interfering in the
administration of the Church by the plaintiffs.
2. The said suit was decreed as prayed for by the trial court on 20th
December 2019 i.e about 10 days prior to the term of office coming to an
end. The defendants preferred an appeal in A.S.No.2 of 2020. The Appellate
Court upon a re-consideration of the evidence on record concluded that the
election itself was not properly conducted. The lower Appellate Court
allowed the appeal on the ground that the suit itself has become infructuous
since the period itself was over. However, on the disqualification of the
members, the Appellate Court found that the disqualification was not valid.
As against the said judgment and decree, the plaintiffs have come up with
this Second Appeal.
3. By order dated 23.12.2020, this Court had appointed a
Commissioner to take over the management of the Trust as well as the
Church and to start the process for the conduct of the election for the
ensuing year as one more year has lapsed in between. Pursuant to the order,
the Advocate Commissioner Mr.Arul has taken over charge of the Church
and he has also filed a report. The only moot point urged by the parties is
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SA(MD)No.708 of 2020
relating to the disqualification of some of the members in the year 2013.
The Commissioner has sought for certain directions regarding the conduct
of the election including the right of those persons to take part in the
election.
4. I have heard Mr.M.Vallinayagam, learned Senior Counsel
appearing for Mr.N.Dilip Kumar, learned counsel for the appellants and
Mr.S.Meenakshi Sundaram, learned Senior Counsel appearing for Mr.Anto
Prince, learned counsel for the respondents 1 to 6 and Mr.Karuppaiah
learned counsel appearing for the respondents 8 and 9.
5.Mr.M.Vallinayagam, learned Senior Counsel appearing for the
appellants would submit that the appellants do not have any objection for
the defendants 3 to 5 or the other disqualified members taking part in the
election process. He would also submit that the disqualification made in the
year 2013 having been found to be bad by the Appellate Court those persons
cannot be prevented from participating in the election process.
6. The bye-laws of the Church would show that there are two stages
of election. The first stage is to choose the representatives streetwise and
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SA(MD)No.708 of 2020
constitute the executive committee. The executive committee members will
vote at the election of the office bearers namely the President, the Secretary
and the Treasurer. Each street has got to select a number of representatives
which is a predetermined figure. The selection of the representatives of each
street is made by the drawal of lots. Only those persons selected to the
executive committee will have the right to contest the election for the posts
of the President, the Secretary and the Treasurer. In the light of the
statement made by the learned Senior Counsel appearing for the appellants,
I do not think there should be any difficulty in allowing those persons, who
are disqualified in the year 2013 from participating in the election process
conducted by the Commissioner.
7. Mr.S.Meenakshi Sundaram, learned Senior Counsel appearing for
the respondents 1 to 6 would submit that certain other clarifications are also
required. Drawing my attention to Sub-clause (12) of bye-law No.13, the
learned Senior Counsel would submit that the bye-law enables those
persons, who are having arrears of subscription to pay the same and contest
the election. According to him, since some of the members were
disqualified in the year 2013, their membership fee has not been received
and therefore, they should be allowed to pay the same and contest the
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SA(MD)No.708 of 2020
election.
8. Now that the learned counsel for the appellants has expressed no
objection for those persons taking part in the election process itself, the
benefit conferred under Clause-12 of bye-law No.13 would be made
available to those members. He would also point out that Clause-31 of bye-
law No.13 imposes a restriction on the right of those members, who are
disqualified to take part in the election process. It is made clear that
Clause-31 of bye-law No.13 will not be applicable to those members, who
were disqualified in the year 2013 since their disqualification has been held
to be illegal by the Appellate Court.
9. The learned Advocate Commissioner Mr.Arul would seek a
clarification on Clause-27 of bye-law No.13 which disqualifies the person,
who had not attended even a single General Body Meeting during a year
from being nominated to the executive committee. This bye-law cannot be
applied to the disqualified persons since they were not allowed to attend the
meetings on the ground of such disqualification. But at the same time, it is
made clear that Clause-27 of bye-law No.13 would apply to other members
(other than disqualified members) who had not attended even a single
meeting during a year.
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SA(MD)No.708 of 2020
10. As regards the third defendant is concerned, he was disqualified
in the year 2018. Mr.M.Vallinayagam, learned Senior Counsel appearing
for the appellants would express reservations regarding the right of the third
defendant to participate in the election process inasmuch as the Appellate
Court has not considered the resolution passed against the third defendant
independently and come to a conclusion that his disqualification is not
valid.
11. Contending contra, Mr.S.Meenakshi Sundaram, learned Senior
Counsel appearing for the respondents 1 to 6 would submit that both the
resolutions were considered by the Appellate Court and the Appellate Court
has come to the conclusion that the procedure required to be followed in
cases of disqualification was not followed by the General Body before the
disqualification was effected. If the disqualification made in the year 2013
is held to be illegal on the ground that the procedure prescribed has not been
followed and no notice has been issued to the disqualified persons as
required under the Sub-clause (2) of bye-law 12, the same should be applied
to the third defendant also.
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SA(MD)No.708 of 2020
12. I therefore, do not think that the third defendant could be treated
differently from others. Hence, the third defendant would also be entitled to
take part in the election process.
13. Mr.Arul, learned Advocate Commissioner would also point out
certain other day to day practical difficulties in the administration of the
Church. He would also submit that several members are claiming money
from the Church as due to them as per the contract entered into between the
warring factions. It is made clear that the Advocate Commissioner is
entitled to collect the revenue due to the Church and the Trust. He will also
be entitled to incur the expenses in the day to day administration and the
process of conduct of election. Any payment made towards any contract
entered into by any of the groups will be deferred till the elections are
completed and the incoming office bearers will decide on such payment.
Apart from the above, if any issue relating to disqualification because of
some of the members not-attending the required number of meetings or any
other issue relating to disqualification arise, the Commissioner will be
entitled to decide upon it based on the material that is made available to
him.
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SA(MD)No.708 of 2020
14. The Commissioner is required to conduct the election as early as
possible in compliance with the bye-laws of the Trust.
15. It will be open to the Advocate Commissioner to seek police
protection, if it is absolutely necessary. The Superintendent of Police,
Kanyakumar District is required to provide necessary police protection to
the Advocate Commissioner if and when required by him.
16. With the above directions, this appeal is disposed of.
Consequently, connected miscellaneous petitions are closed. There will be
no order as to costs.
11.01.2021
Index : Yes/No
Internet: Yes/No
CM
To:
1.The I Additional Subordinate Judge,
Nagercoil
2.The Principal District Judge, Kanyakumari District at Nagercoil
3.The Section Officer VR Section,
Madurai Bench of Madras High Court, Madurai.
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SA(MD)No.708 of 2020
R.SUBRAMANIAN.J.,
CM
SA(MD)No.708 of 2020
and CM P(MD) Nos.7294 and 7284 of 2020
11.01.2021
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