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

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