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TMI Blog2009 (9) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... Association of Church of South India (CSI) Madras Diocese, represented by its General Secretary and Vice President, filed a suit in C.S.No.295 of 2009 for declaration that the fifth defendant therein Rt.Rev.Dr.V.Devasagayam, cannot hold the post of Bishop of CSI, Madras Diocese, beyond 1.5.2009 and also for consequential reliefs along with the mandatory injunction to direct the defendants 2 and 3 therein to issue a direction to the fourth defendant in respect of the nomination of Bishopric candidates to the post of Bishop. In that suit, the plaintiff filed an application in O.A.No.329 of 2009 seeking interim injunction to restrain the fifth defendant referred to above, from holding the post of Bishop beyond 1.5.2009 and also an application in A.No.1561/2009 seeking for a direction to the respondents 1 and 2 to commence election process. In that suit, pursuant to the orders of Court, summons were served upon the defendants. The Court recorded the statements of the defendants 1 and 2 therein that Synod would decide the issue relating to the continuance of the fifth defendant as Bishop since the Executive Committee of the Synod was seized of the issue. (b) The second defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fitness and the willingness of the person to accept the office of bishop are two crucial factors to be taken into account for appointment to the said office; that the Synod is clothed with power and discretion to select and appoint a bishop and the post is not merely by election alone; that apart from that, there was no question of retirement in the case of the first respondent; that Synod has power to make rules and pass resolutions and take executive action; that the first respondent had no prima facie case; but the balance of convenience was with the appellants, and irreparable loss and hardship would be caused to them in the event of interim orders being passed against them; that the first respondent had no substantive right to the office after the expiry of the said period; that the first respondent was not entitled to continue till the age of 65 years on account of it being contrary to his appointment for 10 years, and hence the order of the learned Single Judge has got to be set aside. 5.Contrary to the above, the learned Senior Counsel Mr.R.Thiagarajan for the first respondent in his sincere attempt of sustaining the order of the learned Single Judge put forth his submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bishop appointed. The consecration of the plaintiff has also taken place. The parties are not in controversy as to the above factual position. 8.The only question that arose for consideration is whether the appointment of the first respondent/plaintiff bishop as made above was only for a period of 10 years ending with 1.5.2009 and thereafter he cannot continue as contended by the appellants' side or he could continue till he attains 65 years of age as contended by the plaintiff bishop. 9.The learned Senior Counsel for the appellants would submit that Rule 12(a) of Chapter V of the Constitution of the Church of South India stipulates that a bishop shall retire on the completion of 65 years of age; that the use of the words shall retire was with a specific purpose of prescribing the maximum or outer limit for holding the office and constituted a bar only to continuing beyond such period in cases where there was no restriction operating, and it did not mean until and hence the first respondent bishop was appointed only for a period of 10 years considering his health condition, and he cannot take shelter under Clause 12(a). On the contrary, the learned Senior Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff was duly appointed as bishop and also consecrated in the office. Nowhere in the entire Constitution it speaks about the restricted period of 10 years or any period. On the contrary it stipulates under Rule 12(a) till the completion of his 65th year . When the nominations were made or elections conducted, it was also not for a stipulated period; but it should have been only for a period as envisaged under Rule 12(a). In support of the contention, the learned Senior Counsel for the appellants placed reliance on different communications which emerged between the Church of South India and the plaintiff bishop. 12.The minutes of the meeting of the bishop's selection board of Madras Diocese met on 5.4.1999 at 4.00 P.M. at CSI Synod Centre reads as follows: After preliminary discussion the candidates of the panel were interviewed. After prolonged consideration, considering all aspects relating to the candidates particularly with regard to health condition of both of them it was unanimously decided to restrict the period of appointment, in the interest of the Diocese for a period of 10 years. (emphasis supplied) ... After careful consideration it was unanimo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound in the documents. 17.It is true that in both the documents namely the certificate of election and appointment and also the document for consecration, the period of office of the plaintiff is not mentioned. Equally in the letter dated 9.4.1999 issued by the Church of South India to the members of the Synod Executive Committee along with the bio-data of the plaintiff Devasahayam and also the letter dated 28.4.1999 whereby the members of the Synod Executive Committee have expressed their willingness for the appointment of Devasahayam as the bishop in Madras Diocese, the term of office is not mentioned. 18.The learned Senior Counsel for the first respondent bishop pointing to all the documents would contend that even at the time of appointment, the period of office was not stated and hence when the plaintiff bishop was appointed, it was only till he attains the age of 65. Insofar as certificate of appointment and also the document of consecration, one cannot expect the period of tenure of office to be stated therein. At this juncture, it is pertinent to point out that the board appointed for the purpose of bishop by the Church of South India has restricted the period of tenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cration. This communication is not disputed and it has also emanated from the CSI. While so, there cannot be another letter on the very day namely 24.4.1999 written by the Moderator to the plaintiff bishop that his retirement was at the completion of 65 years of age and his term of office cannot be limited by any order contrary to the provisions of the Constitution. Hence such a letter could not have been written the very day. That apart, the Moderator cannot write such a letter. Even assuming that the Moderator has written such a letter, during that time he could not extend the period stating that the retirement will be at the completion of 65 years of age since it was contrary to the earlier appointment and confirmation by the Synod. At this juncture, it is pertinent to point out that the said letter dated 24.4.1999 relied on by the first respondent/plaintiff bishop, does not refer to any decision of the Synod. It remains to be stated that only the Synod has got the power to rectify or set right things if any defect is noticed and not the Moderator. 21.It is true that on 28.4.1999, the Synod Secretariat, CSI, has given the instrument of election and appointment of the Rt.Rev.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent bishop has got to be permitted to continue to be the caretaker bishop of the Madras Diocese till the new appointment is made by the competent authority. 23.Above all, the suit is laid against the Executive Committee of the Synod, Church of South India, the first defendant and against the Madras Diocesan Council CSI as the third defendant, and the reliefs are sought against those defendants. It is not in controversy that those defendants are unincorporated bodies and are not legal persons. Thus the suit is filed against the Christian community represented by the defendants who are unincorporated bodies, and hence the suit itself is not maintainable without getting permission under Order 1 Rule 8 of the Code of Civil Procedure. For instituting a suit in a representative capacity or filing a suit against a representative body, the procedure under Order I Rule 8 of CPC has to be complied with. The Apex Court in a case reported in (1990)1 SCC 266 (KALYAN SINGH V. SMT.CHHORI) has held that for a representative suit, the court's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory. Admittedly, in the instant case, no such permission was sought f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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