According to me, it would be a clear abuse of process of
Court, if the party is permitted to file two separate suits by impleading
two different persons of the same organisation to get over the
restriction under Order XXIII, Rule 1 (4) of the CPC.
Further, when
the order of suspension was not issued by the defendant and was
issued by the General Secretary, CSI, & Hony.Secretgary CSI TA, the
suit filed against the person/authority, who/which has not issued such
an order is also not maintainable and on that ground also, the suit is
liable to be rejected.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2014
CORAM
THE HON'BLE MR.JUSTICE R.S. RAMANATHAN
APPLICATION No.5968 of 2013
in
C.S.No.710 of 2013
THE MODERATOR
THE CHURCH OF SOUTH INDIA
RT.REV.DR.J.A.D.JEBACHANDRAN
BISHOP OF THOOTHUKUDI NAZARETH DIOCEASE
The defendant is the applicant in the above Application.
The
applicant filed the above Application to reject the plaint in C.S.No.710
of 2013 on the ground that the suit is barred under Order XXIII, Rule
1(4) of the Civil Procedure Code and also not maintainable on the
ground that leave under Order I, Rule 8 of the CPC was not obtained.
2
2. To appreciate the merits of the Application, the pleadings in
the plaint have to be looked into:-
The respondent/plaintiff filed the suit for the following relief:-
(i) for a declaration that the order of
suspension dated 03.04.2013 is ultra vires the
Constitution of Church of South India, which
has
been
clandestinely
restored
by
the
defendant by making the plaintiff withdraw the
suit filed by the plaintiff earlier.
(ii)
for
a
permanent
injunction
restraining the defendant his men or agent
claiming
under
him
from
proceeding
to
constitute the Court of Synod without following
the
procedures
contemplated
in
the
Constitution of Church of South India against
the plaintiff.
(iii) for Cost of the suit.
3. The allegations made in the plaint in brief for the purpose
of this Application are that the plaintiff was elected, selected,
appointed,
consecrated,
and
installed
as
the
First
Bishop
of
Thoothukudi-Nazareth Diocese, during May 2006, and as such, he is
the religious administrative Head of the Thoothukudi-Nazareth Diocese
3
and, has been discharging his duty as Bishop. Thoothukudi-Nazareth
Diocese is a member of CSI Synod, which is the highest representative
body of Church of South India.
the
internal
affairs
of
the
The defendant started interfering in
Thoothukudi-Nazareth
Diocese
and
therefore, the plaintiff filed a suit for declaration in O.S.No.64 of 2013
on the file of the Subordinate Court, Thoothukudi, to declare that the
letter of the defendant/applicant dated 16.01.2013 as null and avoid
and also obtained an order of injunction against the defendant from
interfering with the functions of the plaintiff as Bishop by order dated
25.02.2013.
Another suit in O.S.No.454 of 2013 was filed by
Rev.Devasahayam, who was also aggrieved by the letter of the
defendant/applicant, dated 16.1.2013 on the file of the XVI Assistant
City Civil Court, Chennai, and he also obtained an order of injunction
in that suit and that order was also made absolute.
While so, the
plaintiff received an intimation dated 29.1.2013 for the
meeting of
Executive Committee of the CSI Synod to be held on 25.2.2013 along
with enclosures as Agenda and Minutes of the Synod Advisory
Committee held on 22.08.2012.
The plaintiff attended the meeting
on 25.02.2013 and in that meeting, he asked for the particulars about
the draft Minutes of earlier Executive Committee meeting to be
confirmed at that meeting, which was not circulated as per the
procedure and the Secretary of CSI Synod refused to divulge any
information.
According to the plaintiff, in the meeting held on
4
25.02.2013, the procedures as contemplated under the constitution of
Church of South India were not followed and the Minutes of the said
meeting have not also been circulated.
However, the plaintiff received
a letter of Communication dated 03.04.2013 by email sent by the
defendant stating that the decision of the Executive committee to
suspend the plaintiff from the post of Bishop of Thoothukudi-Nazareth
Diocese
for
25.02.2013.
his
disorderly
behaviour
at
the
meeting
held
on
According to the plaintiff, the letter dated 03.04.2013
suspending from the office of Bishop is unconstitutional as the
Executive Committee of the Synod does not have the power to
suspend the Bishop.
The plaintiff quoted Chapter V, Rule 12(a),
Chapter IX, Rule 14, Chapter IX Rule 29 to buttress his contention
that the Executive Committee of Synod has no power power to
suspend.
He therefore filed O.S.No.2065 on the file of the XVI
Assistant City Civil Court, Chennai, for a declaration that the letter of
the Synod dated 03.04.2013 as null and void.
appearance and filed counter affidavit.
of the
Karnataka
Diocese
filed
a
The defendant entered
In the mean while, a member
case
against the
defendant
questioning his right to conduct consecration, ceremony in St.Mark's
Cathedral as the defendant was facing serious charges and therefore,
the defendant approached the plaintiff knowing fully well that the
pendency of the said suit would prejudice his function as Moderator
and pressurised the plaintiff to withdraw the suit O.S.No.2065 of 2013
5
and also asked for a letter of apology stating that there would be a
revocation of the order of suspension dated 25.02.2013.
Believing
and trusting the representation of the defendant, the plaintiff wrote a
letter to the defendant in his own hand seeking apology and the letter
of apology sent by the plaintiff was prepared by the advocate of the
defendant and the plaintiff was made to sign the said letter of apology
under coercion.
The plaintiff thought that by sending letter dated
08.05.2013 expressing apology, the matter would be given a quietus
and there would not be any problem for functioning as Bishop of
Thoothukudi-Nazareth Diocese and believing the representation, the
plaintiff also withdrew O.S.No.2065 of 2013 on the belief that the
order of suspension would be revoked by the defendant.
In that
circumstances, O.S.No.2065 of 2013 on the file of XVI Assistant City
Civil Court, Chennai, and O.S.No.64 of 2013 on the file of the
Subordinate
Court,
Thoothukudi
were
dismissed
as
withdrawn.
However, the defendant did not take any steps to revoke suspension,
though various promises were made by the defendant that the matter
would be discussed in CSI Synod Working Committee meeting, no
progress was made in that matter though four months had lapsed.
Therefore, the plaintiff was constrained to send a reminder letter
dated 27.08.2013 and the defendant sent a letter dated 31.08.2013
as reply to the plaintiff's letter dated 27.8.2013.
From the contents
of the letter dated 31.08.2013, the plaintiff realised that the defendant
6
used his office and forced the plaintiff to withdraw the pending cases,
and in the letter dated 31.08.2013, financial irregularities were also
levelled against the plaintiff, which were false.
The plaintiff states
that on the basis of the letter dated 31.08.2013, the defendant was
contemplating to call the Council of Bishops for a meeting on
17.10.2013 to remove the plaintiff from the post of Bishop and as the
order of suspension is ultra vires the constitution of Church of South
India, which was challenged by the plaintiff by filing a suit in
O.S.No.2065 of 2013, which was clandestinely restored by the
defendant by making the plaintiff to withdraw the suit in O.S.No.2065
of
2013,
the
plaintiff
filed
the
above
suit
for
the
relief
as
aforementioned.
4. The applicant/defendant filed the above Application to
reject the plaint in C.S.No.710
of 2013
on the ground
that
O.S.No.2065 of 2013 was filed for the same relief and that was
withdrawn by the plaintiff without seeking leave and on the basis of
withdrawal memo submitted by the plaintiff, the suit was also
dismissed as withdrawn and therefore, a fresh suit on the same cause
of action for the same relief under Order XXIII, Rule 1(4) of the CPC is
liable to be rejected.
It is also stated that the impugned order was
issued by the General Secretary on behalf of the CSI Synod/Executive
Committee of the Synod and the Synod's Executive Committee
7
suspended the plaintiff and no relief could be claimed against the
defendant, the Moderator, and without impleading the Synod Executive
Committee, the suit is not maintainable and the suit is bad for non-
joinder of necessary parties and also not maintainable under Order I
Rule 9 of the CPC as the CSI Synod and Synod Executive Committee
are unregistered bodies and therefore, without obtaining leave under
Order I, Rule 8 of the CPC, the present suit is also not maintainable.
5. The plaintiff filed a counter affidavit reiterating the
allegations made in the plaint stating that by practising fraud and
coercion, the letter dated 08.5.2013 was obtained from the plaintiff
and he was under the impression that his suspension would be
revoked on tendering apology by letter dated 08.5.2013 and on that
basis, he withdrew the suit in O.S.No.2065 of 2013.
Therefore, the
present suit filed by him is maintainable.
6. It is submitted by Mr.Adrian D.Rozario, learned counsel for
the applicant that, admittedly, the relief prayed for in O.S.No.2065 of
2013 and the relief prayed for in the present suit are identical and
that, earlier suit was withdrawn without obtaining any leave and
therefore, as per Order XXIII, Rule 1(4) of the CPC, the plaintiff is
precluded from instituting any fresh suit in respect of the such subject
matter or such part of the claim.
He also relied upon the judgment
8
reported in 2009-4-L.W.742 [Thoothukudi Nazareth Diocese
rep.by its Treasurer & another v. the Church of South India and
another] in support of his contention that the plaintiff and the
defendant are unincorporated bodies and therefore, without getting
permission of the Court under Order I, Rule 8 of the CPC, the suit is
not maintainable.
7. On the other hand, Mrs.Chitra Sampth, learned Senior
Counsel, appearing for the respondent/plaintiff, reiterated the very
same stand taken in the plaint and contended that though the prayer
in both the suits appears to be the same, the present suit is filed by
making allegation that fraud has been practised upon the plaintiff to
execute the letter of apology and the plaintiff was forced to withdraw
the earlier suit O.S.No.2065 of 2013 by false promise that the order of
suspension would be revoked and later, the applicant not only failed to
revoke the order of suspension but also made serious allegations
against the plaintiff and therefore, the cause of action for the present
suit and the cause of action for the earlier suit are different and
therefore, the present suit will not come under the mischief of Order
XXIII, Rule 1(4) of the CPC and therefore, the plaint cannot be
rejected.
She further submitted that the permission to file the
present suit under Order I Rule 8 can also be obtained at any point of
time and on that ground, the plaint cannot be rejected and she also
9
submitted that the plaint cannot be rejected on the ground of non-
joinder of necessary parties.
She, therefore, contended that no case
has been made out to reject the plaint and therefore, the Application
is liable to be dismissed.
8.To appreciate the contention of both parties, the provision
of Order XXIII, Rule 1(4) of the CPC has to be looked into and it is as
follows:-
“ORDER XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
1.
Withdrawal
of
suit
or
abandonment of part of claim – (1) At any
time after the institution of a suit, the plaintiff
may as against all or any of the defendants
abandon his suit or abandon a part of his
claim:
Provided that where the plaintiff is a
minor or other person to whom the provisions
contained in Rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the
claim shall be abandoned without the leave of
the Court.
(2) An application for leave under the
proviso to sub-rule (1) shall be accompanied by
an affidavit of the next friend and also, if the
minor or such person is represented by a
pleader by a certificate of the pleader to the
effect the abandonment proposed is, in his
10
opinion, for the benefit of the minor or such
other person.
(3) Where the Court is satisfied-
(a) that a suit must fail by reason of
some formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for
the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit,
grant the plaintiff permission to withdraw from
such suit or such part of the claim with liberty
to institute a fresh suit in respect of the
subject-matter of such suit or such part of the
claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim
under sub-rule (1), or
(b) withdraws from a suit or part of a
claim without the permission referred to in sub-
rule (3), he shall be liable for such costs as the
Court may award and shall be precluded from
instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed
to authorise the Court to permit one of several
plaintiffs to abandon a suit or part of a claim
under sub-rule (1), or to withdraw, under sub-
rule (3), any suit or part of a claim, without the
consent of the other plaintiffs.”
11
9. A reading of the sub-rule (4) would make it clear that
when a suit is abandoned or a part of claim is abandoned or when a
suit is withdrawn or part of the claim is withdrawn without permission
from Court under Order XXIII, Rule 1 (4) of the CPC, the plaintiff shall
be precluded from instituting any fresh suit in respect of such subject-
matter or such part of the claim.
Therefore, Order XXIII, Rule
1 (4) of the CPC deals with abandonment of a suit or part of the claim
or withdrawing the suit or part of a claim without the permission of the
Court and in that event, fresh suit in respect of the such subject
matter or such part of the claim is prohibited. Therefore, for
abandoning any suit or part of the claim, there is no need for any
permission or leave from the Court for doing so.
On the other hand,
when the plaintiff wants to withdraw the suit or a part of the claim, he
cannot do that without the permission of the Court as per sub-rule (3)
of Rule 23.
As per sub-rule 3 of Rule 23, the Court, on being satisfied
that the suit must fail by reason of some formal defect or there was
sufficient grounds for allowing the plaintiff to institute a fresh suit in
the same subject matter of a suit or part of a claim, may grant
permission to the plaintiff to withdraw such suit or part of the claim
with liberty to institute a fresh suit in respect of the subject matter of
the suit or such part of the claim. Therefore, for withdrawing a suit or
part of a claim, Court has to be satisfied on the reasons stated
and Court should grant permission to withdraw the suit or part of the
12
claim and also grant liberty to institute a fresh suit on the same
subject matter or such part of the claim.
10. In the judgment reported in AIR 1970 SC 987
[Rukmanibai v. Mahadeo], it is held that the subject matter means
a bundle of facts which have to be proved in order to entitle the
plaintiff to the relief claimed by him.
The expression ''subject matter”
has a reference to right in the property and it also includes cause of
action and the relief claimed.
Subject matter in sub-rule (4) means
cause of action and where the cause of action is different, the
subsequent suit is not barred even if it is in respect of the same
property.
11. In the judgment reported in AIR 1928 Madras 689
[Rangacharya v. Raman], and in the judgment reported in AIR
1929 M 798 [Narayanaswami v. Mannar], it has been held that
identity of parties and the identity of causes of action must be
established to prohibit a person from filing his second suit after
withdrawing the earlier suit without the permission.
Therefore,
though the sub-rule (4) speaks about the part of the claim or subject
matter of a suit, it only refers to the identity of cause of action in both
the suits.
13
12. Therefore, we will have to find out the pleadings in
O.S.No.2065 of 2013 and the pleadings in C.S.No.710 of 2013 to find
out whether the cause of action in both the suits are the same.
In
O.S.No.2065 of 2013, the prayer was to declare the letter of the
defendant (applicant in the present Application), dated 3.4.2013
addressed to the plaintiff (respondent herein) as null and void.
O.S.No.2065 of 2013 was filed by Rev.Dr.J.A.D.Jebachandran against
CSI Synod, Chennai, and C.S.No.710 of 2013 was also filed by the
very same plaintiff and the defendant is the Moderator, the Church of
South India, CSI Synod Centre, Chennai. As per the allegations in suit
O.S.No.2065 of 2013, the order of suspension dated 3.4.2013, which
was challenged in both the suits was issued by the General Secretary,
CSI and Hony.Secretary, CSI TA and therefore, O.S.No.2065 of 2013
was filed by the plaintiff against the CSI Synod represented by General
Secretary.
Earlier O.S.No.64 of 2013 was filed by the very same
plaintiff against CSI Synod for declaring the letter of the defendant
dated 16.2.2013 addressed to the plaintiff as null and void and for an
order of permanent injunction.
In the present suit C.S.No.710 of
2013, the prayer is to declare the order of suspension dated 3.4.2013
as ultra vires stating that the order dated 3.4.2013 was clandestinely
restored by the defendant after the plaintiff was forced to withdraw
the earlier suit filed by the plaintiff.
Though in the present suit
C.S.No.710 of 2013, the plaintiff has alleged that the reason for
14
withdrawing O.S.No.2065 of 2013 was the representations and
promises
made
by
the
Synod
Executive
Committee
and
the
Morderator, which prompted the plaintiff to withdraw the earlier suit in
O.S.No.2065 of 2013, the letter dated 3.4.2013 was not restored as
claimed by the plaintiff and the only allegation made by the plaintiff in
the present suit is that after the issuance of order of suspension dated
3.4.2013, he was asked to submit a letter of apology dated 8.5.2013
and according to him, the letter of apology was obtained by practising
deception
and
coercion,
which
cannot
go
together
and the plaintiff has also sent the letter of apology as per the dictation
of the defendant under the impression that it would put an end to the
matter.
It is further stated in the plaint that the plaintiff was forced to
withdraw the suit on the basis of certain promises or representations
made by the defendant or CSI Synod, which were later not kept up
and therefore, withdrawal of the suit in O.S.No.2065 of 2013 has no
legal effect as fraud was practised upon the plaintiff.
A reading of the
plaint would make it clear that on the basis of the assumption by the
plaintiff that by giving the letter of apology, his suspension order
would be revoked, and in good faith, he withdrew the suit in
O.S.No.2065 of 2013.
Though it is stated in Paragraph 15 of the
plaint that withdrawal of the memo dated 27.6.2013 was prepared by
the defendant's advocate, and further, it is also stated in the letter
addressed to the defendant dated 27.6.2013 that as suggested by the
15
defendant, the plaintiff was withdrawing the suit O.S.No.2065 of 2013
filed by him in the City Civil Court, Chennai, in the said letter dated
27.06.2013, nothing more has been stated that the suit was
withdrawn on the suggestion that the suspension order would be
revoked.
In the memo filed by the plaintiff in O.S.No.2065 of 2013
also, nothing has been stated except that the suit was to be withdrawn
by the plaintiff and permission of the Court was to be sought for
withdrawal of the suit by the plaintiff. A reading of the plaint in C.S.
No.710 of 2013 also makes it clear that except a passage in Paragraph
23 that the defendant cleverly made the plaintiff to withdraw the suit
from the file of the City Civil Court, Chennai, no allegation of fraud, or
coercion or misrepresentation was made against the defendant, on the
basis of which the plaintiff was made to withdraw the suit.
Further,
the allegations made in the plaint would also make it clear that
C.S.No.710 of 2013 was filed only to declare that the letter dated
31.8.2013 making charges against the plaintiff is unconstitutional,
illegal and liable to be set aside and for that purpose, the suit was
filed, vide the last sentence in Paragraph 23.
However, no such
prayer regarding the letter dated 31.8.2013 and to declare the same
unconstitutional or void, has been prayed for. Though the plaint
speaks happenings
about
various
correspondences
and
after
suspension letter dated 3.4.2013, the prayer is only to declare the
order of suspension dated 3.4.2013 as ultra vires and hence, the
16
prayer in O.S.No.2065 of 2013 and prayer in C.S.No.710 of 2013 are
one and the same.
The cause of action in both the suits are one and
the same and therefore, without obtaining the leave or permission
from the Court while withdrawing the suit in O.S.No.2065 of 2013, the
present suit for the same relief is not maintainable as per Order XXIII,
Rule 1(4) of the CPC.
13.
As stated supra, the suspension order dated 3.4.2013
was not restored as claimed by the plaintiff and that the prayer was so
cleverly drafted to make it appear that it is a different suit with a
different prayer and a reading of the plaint's allegation and the prayer
would make it clear that the plaintiff's intention is only to get the
suspension order declared as ultra vires or null and void and the same
prayer was made in the earlier suit and hence, the present suit is
prohibited under Order XXIII, Rule 1 (4) of the CPC.
Though the
defendant in O.S.No.2065 of 2013 and C.S.No.710 of 2013 are two
different persons, having regard to the nature of the allegations made
in both the suits and having regard to the fact that suspension order
dated 3.4.2013, which is challenged in both the suits was issued by
the General Secretary, CSI, & Hony.Secretgary CSI TA, by changing
the office of the defendant, the plaintiff cannot contend that the
parties are different and therefore, the provision under Order XXIII,
Rule 1 (4) of the CPC cannot be made applicable.
17
14. According to me, it would be a clear abuse of process of
Court, if the party is permitted to file two separate suits by impleading
two different persons of the same organisation to get over the
restriction under Order XXIII, Rule 1 (4) of the CPC.
Further, when
the order of suspension was not issued by the defendant and was
issued by the General Secretary, CSI, & Hony.Secretgary CSI TA, the
suit filed against the person/authority, who/which has not issued such
an order is also not maintainable and on that ground also, the suit is
liable to be rejected.
Hence, I am unable to accept the contention of
the learned Senior Counsel appearing for the defendant, and having
regard to bar under Order XXIII, Rule 1 (4) of the CPC, the present
suit filed by the respondent/plaintiff in respect of the same subject
matter is not maintainable and is liable to be rejected.
15. As I have rejected the plaint by the abovesaid ground, I
have
not
considered
several
other
points
raised
by
the
applicant/defendant regarding the absence of leave under Order I Rule
8 of the CPC.
Further, a suit cannot be rejected on the ground of
non-joinder of necessary parties.
16. In the result, the Application is allowed and the plaint is
rejected. No order as to costs.
30.06.2014
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