Civil Procedure; Rev. C. Chrispus Vs. Rev. M. Robinson [Kerala High Court, 19-08-2016]

Contents

Constitution of India – Article 227 – Civil Procedure Code, 1908 – Section 104, Order 39 Rule 1 & Order 43 Rule 1 – Order of Temporary Injunction – illegality in not accepting any document as photocopies  Writ power however is not exercised to correct the mistake of fact or of law – When there is a statutory appeal provided against an order, normally the remedy of the parties is to file an appeal and not to rush to the High Court under Article 227 of the Constitution of India


# IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. RAMAKRISHNAN, J.

O.P.(C).No.1266 of 2016

Dated this the 19 th day of August, 2016

I.A.NO. 2966 OF 2016 IN O.S.NO.700 OF 2016 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM

PETITIONER(S)

REV. C. CHRISPUS

BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB

RESPONDENT(S)

REV. M. ROBINSON AND OTHERS

R1 TO R3 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH

JUDGMENT

The petitioner in the above case is challenging Ext.P14 order passed by the Additional District Judge (Vacation Court) Thiruvananthpuram in IA.No.2966/2016 in OS.No.700/2016 of Munsiff Court, Thiruvananthapuram under Article 227 of the Constitution of India.

2. It is alleged in the petition that the petitioner is the duly elected President of the Thiruvananthapuram Synod of the India Evangelical Lutheran Church (hereinafter referred to as ‘IELC’ for short). The respondents are the members of the Thiruvananthapuram Synod who are in enmical terms with the petitioner and other elected members of the executive committee of Thiruvananthapuram Synod. IELC is an ecclesiastical society registered under the Society of Registration Act, 1860 governed by its own constitution Ext.P1. It has at present three Synods namely Ambur Synod, Nagarcoil Synod and Trivandrum Synod. The appointment of office bearers of Synod and IELC (except Ambur Synod for a period of 3 years) is for a period of two years and they are being elected through an election procedure as per the constitution. For the purpose of conducting the election an election commissioner will be appointed as per Article VIIA.4 of the Constitution and he shall duly notify and conduct election in the manner prescribed under Ext.P1 constitution. He shall have assistance of the Regional Officer concerned in carrying out his task and he shall be the final judge of any election dispute over elections and appeals are to be preferred within a week after the election. For conducting election of current term ie., 2014-2016 in respect of Synods and IELC, Mr. Benjamin Franklin was appointed as election commissioner as per letter dated 10.1.2014 by the Church Council, IELC and then acting President Y. Sukumaran, IELC and accordingly he notified for election as per notification dated 21.4.2014 and conducted election on 27.5.2014 in compliance with the order dated 22.5.2014 in IA.No.7854/2014 in OS.No.2666/2014 filed before City Civil Court, Chennai. The election was conducted at IELC, Ambur and petitioner was elected as President, Rev.B. Joy Madathikonam as Vice President, Mr. Shanoj Thaloor as Secretary and Rev. C.S. Jayakumar Kaliyakavilai as Treasurer of Trivandrum Synod respectively. Election results were duly communicated to the Registrar of Societies as per letter dated 1.7.2014 and they have assumed charge with effect from 29.5.2014 and they were thereafter continuing as office bearers of Trivandrum Synod.

3. The respondents and their men attempted to cause hindrance to the election proceedings by unnecessarily filing litigation to stop the election process and challenging the appointment of Election Commissioner Mr. Benjamin Franklin and for other allied mattes. They failed and City Civil Court in IA.No.7854/2014 in OS.No.2666/2014 directed the conduct of election to be conducted. Accordingly elections were conducted. The petitioner and others mentioned above were elected as office bearers of the Trivandrum Synod.

4. The election of the petitioner and others was challenged before City Civil Court, Chennai in OS.No.2784/2015 one by Rev. C. Ellappen Prasad and also filed an interim application seeking injunction to restrain the newly elected office bearers from assuming charge. But that was dismissed and the said Ellappen Prasad filed an appeal CMA.No.64/2015 before Additional Judge XVII, City Civil Court, Chennai challenging the order in IA.No.7226/2015 in OS.No.2784/2015 and that was dismissed by the Additional District Judge with a specific finding that the present petitioner and others are the duly elected persons conducted in the election on 27.5.2014. A copy of the judgment of the City Civil Court, Chennai is marked as Ext.P2 and Additional District Judge is marked as Ext.P3. The amendment to the constitution carried out by the respondents was stayed as per order in MP.2/2014 by Hon’ble High Court of Madras in WP(C).No.11272/2014 and copy of the order is produced and marked as Ext.P4. A copy of the order in MP.No.6212/2016 in W.P.(C).No.7004/2016 is produced as Ext.P5. So, according to the petitioner, the contentions of the respondents that they are elected as per the amended constitution is unsustainable especially when the implementation of the amendment to the constitution was stayed by the Madras High Court as per an interim order. The term of elected office bearers including the petitioner is to expire by 31.5.2016.

5. The respondents are illegally obstructing the functioning of the Trivandrum Synod by the petitioner and their men. So the petitioner filed OS.No.700/2016 seeking permanent prohibitory injunction against the respondents and moved IA.No.2966/2016 in OS.No.700/2016 for interim injunction and as per Ext.P6 an ex parte interim injunction order was granted. The respondents entered appearance on 28.3.2016 and sought adjournment on 11.4.2016. They filed counter affidavit and interim application to vacate the ex parte injunction granted. Since the petition to vacate the interim injunction was filed just two days prior to the closing of the courts for summer vacation, the case along with the applications were posted to 19.5.2016. Ext.P7 is the copy of the plaint. Ext.P8 is the copy of the interim application IA.No.2966/2016 in OS.No.700/2016. Ext.P9 is the application filed by the respondents to vacate the interim order. Ext.P10 is the counter affidavit filed by the first respondent and Ext.P11 is the counter affidavit filed by the second respondent. Ext.P12 is the counter affidavit filed by the third respondent. Thereafter the respondents moved this court by filing OP(C).No.1181/2016 seeking a direction to hear the interim application IA.No.2966/2016 in OS.No.700/2016 by the Vocation Judge and this court by Ext.P13 judgment directed the Vacation Court to hear and dispose of the case. The Vacation Court thereafter, according to the petitioner, without considering the factual and legal aspects and materials produced on record in the correct perspective, dismissed the petition IA.No.2966/2016 as per Ext.P14 order. According to the petitioner, since the order passed by the court below is perverse and against legal principles, the petitioner has no other efficacious remedy except to approach this court under Article 227 of the Constitution of India seeking the following relief: To set aside the impugned order in IA.No.2966/2016 in OS.No.700/2016 and further direct the Munsiff Court, Triivandrum to consider the IA.No.2966/2016 afresh in accordance with law.

6. The respondents entered appearance through counsel and filed counter to the petition. They have mainly challenged the maintainability of the petition and according to them, the remedy of the petitioner is to file an appeal under

# Order 43 Rule 1 of the Code of Civil Procedure

(hereinafter referred to as ‘the Code’). They have further contended that the court below had rightly considered all the aspects and since there was no document produced by the petitioner to prove that they were in an actual management of Trivandrum Synod rightly dismissed the application.

7. Heard Sri. Liju v. Stephen, learned counsel appearing for the petitioner and Sri. Babu Joseph Karuvathazha, counsel appearing for the respondents. 8. Learned counsel for the petitioner vehemently argued that a reading of the order of the court below, Ext.P14, would show that the learned judge was haste in disposing the application on the ground that the time fixed by this court for disposal of the application to be expired on that day. Further the documents produced were not considered by the court below as they are photocopies and no opportunity was given to the petitioner to produce the original documents. Thereby the court below had committed illegality in denying opportunity to the petitioner to produce original documents. He had further submitted that if the order passed by the court below is perverse and against the settled legal principles, then the power of this court under Article 227 of the Constitution is not taken away and using the supervisory jurisdiction, this court can set aside the order and direct the regular court to pass appropriate orders in the petition. He had also argued that the document produced by the petitioner before this court also would show that they are duly elected persons and the amended constitution under which the respondents claim to have been elected has not been implemented in view of the interim orders passed by the Madras High Court in which amendment to the Constitution was challenged and implementation of the same was stayed. Further one of the counter parts of the respondents herein challenged the election of the petitioner and the interim application filed by the petitioner in that case restraining the elected members from taking charge was dismissed and that was confirmed by the Additional Sessions Judge in the appeal filed by them. Further the respondents have not produced any documents to show that they are in possession and management of the Trivandrum Synod and there are lot of education institutions under the Synod and on account of the dismissal of the injunction application by the court, the management of those institutions are in stand still. The court below has not properly appreciated the principles laid down of granting interim injunction in a pending matter under order 39 Rule 1 of the Code. He had relied on the decisions reported in

# R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752

# Mani Nariman Daruwala @ Bharucha (Deceased) through LRs, (1991) 3 SCC 141

# Shamrao Ganpat Chintamani v. Kakasaheb Lakshman Gorde, 2008 AIHC 1798

# Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161

# BALCO Employees Union (Regd.) v. Union of India, AIR 2002 SC 350

# Dalpat Kumar v. Prahlad Sing, (1992) 1 SCC 719

# Kirloskar Diesel Recon Pvt. Ltd v. Kirloskar Proprietary Ltd. AIR 1996 Bombay 149

and

# Sobhana Nair K.N v. Shaji S.G. Nair, 2016 (1) KHC 1 (DB)

in support of his case.

9. On the other hand, learned counsel for the respondents submitted that the remedy of the petitioner is to file an appeal under Order 43 Rule 1 the Code and the court below had correctly appreciated the available evidence and come to the conclusion that there is no prima facie case made out by the petitioner to prove their case in order to get an order of interim injunction. They have not produced any document to show that they were in actual management of the Trivandrum Synod as claimed by them as on the date of filing of the suit. Further, any misappreciation of evidence or wrong assumption of facts resulting in a judgment by the court below is amenable for appeal jurisdiction and this court cannot invoke Article 227 of the Constitution of India under supervisory jurisdiction to act as an appellate court to set aside the judgment passed by the court below. He had relied on the decisions reported in

# Radhery Shyam v. Chhabi Nath, 2015 (1) KLT 1032 (SC)

# Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161

# Sadhana Lodh v. National Insurance Co. Ltd. 2003 KHC 373

# United Commercial Bank v. Bank of India & Others, (1981) 2 SCC 766

# Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225

# Gbots Software Development Centre Pvt. Ltd. (PCS INDIA) v. LBS Software Services Pvt. Ltd, Tvm, 2015 (3) KHC 668

# Kerala Badminton Association v. Idukki Badminton Association, 2001 (3) KLT 125

and

# Fr. Antony Jino George v. Malabar Ayurvedics, 2009 (2) KLT 980

in support of his case.

10. It is an admitted fact that the petitioner filed O.S.No.700/2016 before the Munsiff Court, Thiruvananthapuram restraining the respondents herein from interfering in the management of the Trivandrum Synod as they are the elected representatives of the Synod. The status of the petitioner was disputed by the respondents. It is also an admitted fact that the petitioner filed Ext.P7 application as IA.No.2966/2016 for interim injunction and interim ex parte injunction was granted as per Ext.P6. Thereafter respondents 1 to 3 filed Exts.P10, P11 and P12 counter affidavits challenging the maintainability of the suit and the locus standi of the petitioner to file the suit and the application. They also filed Ext.P9 petition to vacate the injunction order as IA.No.4048/2016 and since the interim injunction application was posted beyond summer vacation of that year, the respondents moved this court by filing OP.No.1181/2016 and this court by Ext.P13 judgment directed the Vocation Court to consider the application and pass appropriate orders. In the judgment it has been observed that the vacation judge shall consider as to whether the ad interim order of injunction has to be vacated modified or made absolute in the circumstances of the case. This is particularly so since the order of injunction concerns the governance of many educational institutions and churches. The Vacation Judge shall also do so within a period of two weeks from the date of receipt of the judgment. The question whether the injunction order requires any modification is to be considered forthwith even if IA.No.2966/2016 could not be disposed of finally in the summer recess. It is on that basis that the interim injunction application was taken up before the vacation court, Thiruvananthapuram and by Ext.P4 impugned order, after hearing both sides, elaborately the vacation judge dismissed the application. The petitioner has no case that the court has not heard him fully. The grievance of the petitioner was that since the time fixed by this court in Ext.P13 was to expire on the date of hearing, the court wanted disposal of the application on the same day. They have no case that elaborate hearing was not done in this case. The grievance was that certain documents produced by the petitioner have not been considered by the court as they were photostat copies and no opportunity was given to him to produce either certified copies or original if any available with him.

11. Even if the interim injunction application was considered by the vacation court as though it is the munsiff court, it is an appelable order under Order 43 Rule 1 of the Code. In the decision reported in

# Kerala Badminton Association v. Idukki Badminton Association, 2001 (3) KLT 125

it has been held that it is clear from the section 19(2) of Civil Courts Act, 1957 (Kerala) that the provisional orders passed by the vacation court shall except on matters to be presented to the district count itself shall be an order passed by the court having jurisdiction. Therefore, it is clear that the provisional orders passed by the vacation court should be challenged before the concerned appellate court to which appeal will lie from the court having jurisdiction which has to try and dispose of the matter after summer recess.

12. Further in the decision reported in

# Fr. Antony Jino George v. Malabar Ayurvedics, 2009 (2) KLT 980

the question as to whether orders passed by the district judge during vacation in respect of matters to be filed before the munsiff court is appealable before the High Court or district court itself has been considered in that decision and it has been held that even though by virtue of section 19 of the Kerala Civil Courts Act, 1957, the Vacation Judge cannot pass any final order in a case of this nature and its order can only be a provisional order, his order must be notionally considered as an order passed by the munsiff and such order is appelable. But by virtue of section 13 of Kerala Civil Courts Act, 1957 such appeals have to be filed not before High Court but before the district court or before sub court (where sub court concern is not located in a district center and has filing powers). This court has in the decision relied on an earlier decision of the same court in

# Viswambharan v. Damodaran Nair, 1988 (2) KLT 32

and held that the order passed by the vacation judge is amenable for appeal before the court in which normally the appeal will lie from the court which ought to have passed order.

13. In the decision reported in

# Radhery Shyam v. Chhabi Nath, 2015 (1) KLT 1032

it has been held that judicial orders of civil courts are not amenable to writ of certiorari under Article 226 and jurisdiction under Article 227 is distinct from jurisdiction under Article 226. It has been observed that control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on a different footing from the orders of authorities or Tribunals or courts other than judicial civil court. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression ‘inferior court’ is not referable to judicial courts. Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution, Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226 and by this decision, the decision in

# Surya Dev Rai v. Ram Chander Rai, (2003 (3) KLT 490 (SC)

was overruled.

14. While discussing these matters, the Apex court had relied on the decision of the Supreme Court in

# Sadhana Lodh v. National Insurance Co.Ltd., 2003 (2) KLT 47

extracted para 6 of that judgment which reads as follows:

“6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149 (2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under section 149(2) of the Act (see

# National Insurance Co. Ltd v. Nicolletta Rohtagi, 2003 (1) KLT SN (C.No.44) SC : (2002) 7 SCC 456

This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to tract jurisdiction of the High Court under Article 226 of the Constitution.”

15. It is clear from the above that where a statutory right of appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where remedy by way of appeal has not been provided as against the order and the judgment of the district court, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code where filing of revision before the High Court under section 115 of the Code has been expressly barred by a State amendment only in such cases the petition under Article 227 would lie and not Article 226 of the Constitution.

16. In

# Shalini Shyam Shetty v. Rajendran Shankar Patil, (2010) 8 SCC 329

in paras 64 to 67, the scope of Article 227 has been considered which read as follows:

“64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts , in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it an be shown that a private individual is acting in collusion with a statutory authority.

66. We may also observe that in some High Courts there is a tendency of entertaining petition under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Suraya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 C.P.C has been curtailed. In our view , even if the scope of Section 115 C.P.C is curtailed that has not resulted in expanding the High Court’s power of superintendence. It is too well know to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly”.

17. Further in the reference order made by the Apex Court to a larger Bench, in para 31 of the reference order, it has been observed that under Article 227 of the Constitution, the High Court does not issue writ of certiorari. Article 227 vests the High Court with power of superintendence which is to be very sparingly exercised to keep tribunals and courts within its bounds under authority. Under Article 227 orders of both civil and criminal courts can be exercised in very exceptional cases when miscarriage of justice has been occasioned. Such power however is not exercised to correct the mistake of fact or of law. So it is clear from the above dictum that when there is a statutory appeal provided against an order, normally the remedy of the parties is to file an appeal and not to rush to this court under Article 227 of the Constitution of India.

18. A reading of the judgment of the court below shows that the court below had considered all the aspects and correctness of which is not being gone into by this court while considering this petition as this court is of the view that even if any factual error or misapplication of law while considering the facts a mistake has been committed by the court and when there is an appeal provided, then it is for the appellate court to consider those aspects and pass appropriate orders, invoking Article 227 of the Constitution, this court cannot sit in appeal of an order passed by the court and render a judgment correcting the mistake on fact or law committed by the subordinate court. So under the above circumstances, this court is of the view that the remedy of the petitioner is to file an appeal under Order 43 Rule 1 of the Code and not to file a petition under Article 227 of the Constitution of India. So the petition is not maintainable as such.

19. In view of the fact that this court has found that the remedy of the petitioner is to file a regular civil miscellaneous appeal under Order 43 Rule 1 of the Code, this court is not going into other aspects of the matter into the facts as alleged by the counsel for the petitioner and the respondents regarding the principles governing an order of temporary injunction to be passed under Order 39 Rule 1 of the Code. Even if the court below had committed any illegality in not accepting any document as photocopies, that can be corrected by the appellate court and not by invoking Article 227 of the Constitution of India especially when court below had gone into the question of exercising the discretionary jurisdiction under Order 39 Rule 1 of the Code and declined to exercise the same in favour of the petitioner, challenge of which is amenable to appellate jurisdiction under section 104 read with Order 43 Rule 1 of the Code. So the petition is not maintainable and the remedy of the petitioner is to file an appeal against the impugned order before the district court under section 104 read with Order 43 Rule 1 of the Code and not under Article 227 of the Constitution of India. If the petitioner files an appeal before the district court with a delay condonation application, if the time to file an appeal is expired, then court below can consider the question as to whether the time taken by the petitioner by filing the petition under Article 227 of Constitution of India can be excluded or not under section 14 of the Limitation Act and pass appropriate orders in that application in accordance with law.

With the above directions and observations, this petition is dismissed.

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