By consent, all the Civil Revision Petitions are taken up together and disposed of by a common order.
2. The parties are referred to as per the rank mentioned in the Court below. All the Civil Revision Petitions are sprouted out of the order made in O.S.NO.95 of 2004 pending on the file of the Principal Subordinate Judge, Nagercoil. However, the short facts leading to filing of the Civil Revision Petitions are geographically narrated below.
3. The facts of the case as averred in CRP(MD).No.247 of 2004 is as follows:-
3.1. The petitioner filed a suit in O.S.No.95 of 2004 on the file of the Subordinate Court, Nagercoil seeking for a declaration and prohibitory injunction along with I.A.No.360 of 2004 on the file of the Principal Subordinate Judges Court, Nagercoil, under Order 1 Rule 8 of Section 151 of CPC seeking permission to institute and prosecute with the afore-said suit in a representative capacity. The Court below dismissed the interlocutory application in I.A.No.360 of 2004 by stating that the petitioner had not mentioned in his petition on whose behalf the petition was filed and also regarding the names of the persons who had the same opinion like that of the petitioner was also not mentioned and as against which, C.R.P.No.247 of 2007 is filed before this Court.
3.2. According to the petitioner, in paragraph No.7 of the affidavit filed in support of the petition, it is mentioned that there are numerous and similar catholic Christians who has similar interest like that of the petitioner in that subject matter of the suit. Therefore, in order to adjudicate the subject matter of the suit, the suit was filed in a representative capacity by the petitioner. Apart from that, in paragraph No.2 of the affidavit, the petitioner has clearly stated that plaint may be read as part and parcel of that affidavit. In paragraph No.5 of the plaint, the petitioner has already mentioned that he is the Member of the Holy Family Church and he has held the post of Office bearer in Christian Catholic Associations and therefore, the trial Court ought not to have dismissed the petition in filing the suit filed in a representative capacity. Further, in a representative capacity suit, there is no necessity to mention the addresses and names of the persons for whom the petitioner represents. There are circumstances to prove that the petition is filed in the representative capacity.
3.3. It is the further case of the petitioner that the dismissal of the petition by the Court below on the ground that the paper publication was done by the petitioner is not in order, cannot also be accepted as the trial Court has erred in adjudicating the petition even in the preliminary stage. Therefore, he prayed for allowing the Civil Revision Petition by setting aside the order of the Court below in I.A.No.360 of 2004 filed by the said Arputha Dhas on the file of the Principal Subordinate Judges Court, Nagercoil.
3.4. The facts of the case as averred in CRP.No.328 of 2006 is as follows:-
CRP.No.328 of 2006 has been filed by R.C.Diocese of Kottar, represented by its Bishop against the order dated 07.12.2004 in I.A.No.427 of 2004 in O.S.No.95 of 2004 on the file of the Principal Subordinate Judge, Nagercoil, Kanyakumari District dismissing the impleading petition filed by the petitioners to implead 2&3 as additional plaintiffs/petitioners in O.S No.95 of 2004 filed by the petitioner, namely, one Arputhadas.
3.5. The case of the petitioners is that the suit being a representative suit, the petitioners being the Bishop of RC Diocese of Kottar, Nagercoil, Kanyakumari District and the Parish Priest of the Holy Family Church, Carmel Nagar, Ramanputhoor, Nagercoil, have filed a petition to implead them as petitioners before disposing of I.A.No.359 of 2004.
3.6. It is their further case that the petitioners filed a petition to implead themselves in the above interlocutory application in I.A.No.427 of 2004 and it was posted for counter on 15.09.2004 and on request of the parties, several adjournments were granted, on 21.09.2004, 22.09.2004, 22.09.2004, 27.09.2004, 29.09.2004, 01.10.2004, 04.10.2004, 07.10.2004 and 08.10.2004 and after granting various dates, without even hearing the impleading petitioners though they are the necessary parties and canonical heads of the R.C.Dieocese of Kottar and Holy Family Church, Nagercoil, it was closed by the Court below stating that I.A.No.359 of 2004 filed by Arputhadas was disposed of and hence, I.A.No.427 of 2004 was also closed.
3.7. It is the further case of the petitioners that when the suit itself has been filed in the representative capacity and when interlocutory application has been filed by the Head of the R.C.dieocese institution, namely, by the Bishop and Priest, it is error on the part of the learned Judge in dismissing the interlocutory application No.359 of 2004 filed by Arputha Dhas against the defendants therein which was filed for ad-interim injunction restraining the defendants 1 and 2 their men, agents or servants or any other persons claiming under them, from entering into the Holy Family Church, Carmel Nagar or any other Roman Catholic Church within the jurisdiction of Kottar R.C.Diocease to profess unmodified and unethical form of worship unknown to canon law and restraining the defendants restraining the defendants 3 to 6 their men agents and servants or anybody claiming under them from supporting the illegal and unethical way of worship professed by defendants 1 and 2 in any manner or from collecting the offerings or donations and other amounts due to parish from its properties.
3.8. It is also the case of the petitioners that being the Head of the R.C.dieocese and without adverting into the fact of the entire subject matter of the suit pertaining to the Church and administration of the property, before dismissing the injunction application in I.A.No.359 of 2004 filed by Arputha Dhas, the petitioners ought to have been impleaded as a party and dismissing the said application without impleading them would lead to manifest injustice to the interest of diocese, various institutions and churches under it and therefore, the petitioners came forward with the above C.R.P.(MD).No.39 of 2005 and another C.R.P.No.328 of 2006 in I.A.No.427 of 2004 in dismissing the impleading petition by the Court below by stating that since the interlocutory application for injunction was closed, the impleading petition was also closed. The contentions of the petitioners in C.R.P.No.39 of 2005 is almost similar in nature canvassing the same set of facts.
4. Per contra, learned counsel for the respondents in the afore- said Civil Revision Petitions would submit that there was a direction by the Hon'ble High Court to dispose of the above suits filed in I.A.No.359 of 2004 in which there was a direction to implead the petitioner's church and the Bishop to implead themselves in the above suit. The trial Court ordered paper publication in I.A.No.326 of 2004. The respondents 3 to 6 filed counter statement stating that the affidavit filed in support of petition to file the suit in a representative capacity does not contain material particulars as required under Order 1 Rule 8 CPC. The suit was sought to be filed on behalf of the Holy Family Church, but the church was not impleaded in the suit. Similarly, the elected Secretary, President, Treasurer of the Church were also not impleaded in the suit as Official capacity.
5. Apart from the said fact, the paper publication did not disclose the nature of the suit as well as the reliefs claimed therein in order to enable the persons interested to get themselves impleaded either to support or oppose the suit. Further, the notice did not mention the names of the persons who have been permitted to represent them so that the persons interested may have an opportunity of knowing who have been selected to represent them. The paper publication is not in accordance with Order 1 Rule 8 CPC.
6. Therefore, the trial Court, after considering the objection of the defendants 3 to 6 in the suit dismissed I.A.No.360 of 2004 filed by ArPuthadhas under Order 1 Rule 8 CPC under Section 151 of CPC, which resulted in preferring C.R.P.No.247 of 2004. In support of his contentions, he relied on the following judgments:-
(1)AIR 2003 Orissa 157, Kusasan Vs. Chandramani Pradhan. (2)AIR 1986 Orissa 100, Sukadev Vs. Sidheswar Mahadev Baja Silod.
7. Heard the learned Senior counsel appearing for the petitioners as well as the learned counsel appearing for the respondents and perused the materials available on record.
8. Before deciding the question as to whether the petitioner in C.R.P.(MD).No.247 of 2004 should be allowed to be proceeded as the representative capacity or not, this Court is of the considered view that the crux of the issue involved in all the Civil Revision Petitions is that whether the Court below is right in closing the impleading the petition in I.A.No.427 of 2004 filed by the R.C.Diocese and another, without giving an opportunity of hearing to them? Once such issue is decided, the other issues will have a cascading effect on it. Therefore, this Court thinks it fit to find out an answer as to whether the impleaders are necessary party in deciding the issue in question.
9. The petitioner in C.R.P.No.247 of 2004 who is the seventh respondent in C.R.P.No.328 of 2006 has filed the suit in O.S.No.95 of 2004 as a representative suit under Order 1 Rule 8 of Section 151 of CPC against the defendants 1 to 6 in the above original suit in O.S.No.95 of 2004 for the reliefs of decree of declaration with the un-codified and unethical worship professed by them are illegal and also for a decree of permanent prohibition restraining the defendants from entering into the Holy Family Church, carmel nagar or any other roman catholic church within the jurisdiction of Kottar R.C.diocese and restraining defendants 3 to 6 their men etc from supporting the illegal and unethical way of worship professed by defendants 1 & 2 in any manner or from collecting the offerings or donations and other amount due to the parish from its properties.
10. The petitioners in C.R.P.(MD).Nos.39 of 2005 filed I.A.No.359 of 2004 in O.S.No.95 of 2004 against Thomas Blute and six others for the relief of ad-interim injunction restraining the defendants 1&2, their men etc from entering into the holy family church or any other R.C.Church within the jurisdiction of Kottar R.C.diocese to profess uncodified and unethical form of worship unknown to Canon Law restraining the respondents / defendants 3 to 6 from collecting the offering or donations and other amounts due to the parish from its properties. Originally, on 09.08.2004, the Principal Sub- ordinate Judge, Nagercoil granted interim order of injunction against the afore-said defendants in I.A.No.359 of 2004 in O.S.No.95 of 2004 and as stated earlier, which was subsequently partly allowed.
10. When these matters were pending one A.Gnanamony (the 4th respondent in the Civil Revision Petition) representing himself as the Secretary to Holy Family Church filed W.P.No.499 of 2004 before the Principal Bench, Chennai, forbearing the respondents therein, namely, the Superintendent of Police and the Inspector of Police from interfering with the affairs of the defendants's church except under the due process of law. Similarly, one Augustin filed W.P.No.518 of 2004 for a Writ of Mandamus forbearing the respondents from preventing the petitioner from entering the Holy Family Church for offering prayers. In those two writ petitions, on 13.08.2004, a common order was passed and the operative portion of the order is usefully extracted below:-
?7.It is also open to the petitioner Church to get itself impleaded in the suit as well as the interlocutory application in I.A.No.359 of 2004 in O.S.No.95 of 2004 for making its say in the suit. If so, the petitioner should move the Principal Subordinate Judge, Nagercoil, within one week from the date of receipt of a copy of this order. In the event of such application being filed, all parties concerned shall also file their respective counter affidavits in the interlocutory application within four weeks from the date of receipt of a copy of this order. The I.A.No.359 of 2004 in O.S.No.95 of 2004 itself shall be disposed of by the Principal Subordinate Judge, Nagercoil, within two months from the date of receipt of a copy of this order. In violation of this order, if any unlawful conduct is displayed by any of the parties the first and the second respondents will be free to take appropriate legal action against the concerned individuals. It is also made clear that neither the petitioner's committee should interfere with the affairs of the Church, nor should the third respondent form any new committee for the purpose of administration of the Church. All affairs should await the outcome of the order in I.A.No.359 of 2004 in O.S.No.95 of 2004.?
11. From the afore-said order, it is clear that the Hon'ble High Court in its common order in W.P.(MD).No.499 and 518 of 2014 has specifically directed the petitioner Church to implead themselves in the afore-said suit as well as in the interlocutory application and on such application being filed by them, all parties concerned were directed to file their respective counter affidavits within a period of four weeks from the date of receipt of a copy of the order. The learned Principal Subordinate Judge was also directed to dispose of the above interlocutory applications within a period of two months from the date of receipt of a copy of the order. Based on the afore-said order only, the petitioner in C.R.P.(MD).No.39 of 2005 has posted impleading petition in I.A.No.427 of 2004 to implead themselves as plaintiffs/petitioners in the suit as well as interlocutory application in I.A.No.359 of 2004. But, unfortunately, though time has been granted for filing counter on various occasions, when the petitioners in CRP.(MD).Nos.39 of 2005 and 328 of 2006, as directed by the Hon'ble High Court has filed a petition to implead themselves as plaintiffs/petitioners in I.A.No.427 of 2004, it is seen from the records that on 01.10.2004, the matter was adjourned for filing of counter statement by R.7, where, the petitioners / plaintiffs also represented, but not filed counter. It was posted for argument of the petitioners side. The argument of the petitioners in I.A.No.427 of 2004 was heard and it was posted for orders. On 07.10.2004, again the case was represented. On 08.10.2004, the case was filed for reopening and it was posted under various captions and without passing any orders on the impleading petition, despite the fact that the arguments made by the petitioners therein in the above interlocutory applications were heard, the learned trial Court has simply closed the interlocutory application on 07.12.2004 in the following manner:- ?I.A.No.359 of 2004 disposed of. Hence, this petition (I.A.No.427 of 2004) is closed.?
12. It is pertinent to point out that I.A.No.427 of 2004 was filed to implead the necessary parties in the main suit in O.S.No.95 of 2004 and in I.A.No.359 of 2004. Despite a specific direction of the Hon'ble High Court to the Court below to the effect that the impleading petitioners should be heard and after filing their respective counter statements within the specified time fixed by the Court, unfortunately, without hearing the impleading petitioners, the learned trial Court proceeded with the matter stating that in view of the dismissal of I.A.No.359 of 2004, the impleading petition in I.A.No.427 of 2004 was closed. Such findings are totally erroneous and against the very spirit of the common order of the High Court made in W.P.Nos.499 and 518 of 2004. Furthermore, the order in I.A.No.427 of 2004 is so cryptic and it has been passed by the Court below without assigning any reason leaving the parties left into lurch. The concerning factors in this case is that the arguments advanced by the petitioners in I.A.No.427 of 2004 were heard by the Court below, still, went ahead of the matter without going into the root of the matter.
13. In the considered view of this Court, the learned Judge ought to have decided the impleading petition which was filed on consequence of the order passed in the writ petitions in W.P.Nos.499 and 518 of 2004, wherein, a specific direction was given to implead the petitioners in CRP.(MD).Nos.39 of 2005 and 328 of 2006 as party petitioners. As one step ahead, even as per the common order passed in the writ petitions, the lower Court, in my considered opinion, ought to have straight away allowed the impleading petition in I.A.No.427 of 2004 before disposing of the I.A.No.359 of 2004 filed by Arputha Dhas.
14. Needless to mention, once Bishop, Kottar Diocese and the Parish Priest, Holy Family Church are impleaded as one of the petitioners, then it would have been easier for the Court below to decide whether the petition filed in a representative capacity can be allowed or not and without doing so, in a cryptic order, the impleading petition has been decided. Being the head of the institution, the orders passed without impleading them will have got serious impact over the manner in which the prayers are conducted contrary to cannon law and the whole issue of the suit lies that the defendants were conducting the prayers against the cannon law and the learned Judge ought not to have proceeded with the disposal of interlocutory application straight away, that too, without even assigning any reasons.
15. In the matter of religious issues, the Bishop and the Church are very much necessary parties and they are the right persons to have a say over the matter in question. Needless to mention that a large number of sentiments and religious faith of the people's interest are involved and therefore, the Court below ought to have impleaded the parties concerned to have a proper adjudication. Above all, in the case on hand, pursuant to the direction issued by the Writ Court, they filed a petition to implead themselves as parties to the suit, which the Court below has failed to take into account and dismissed the impleading petition for the reasons best known to it. Therefore, I am of the considered view that the impleading parties are necessary party to decide the issue in question and accordingly, the orders of the Courts below are liable to be set aside.
16. As far as C.R.P.(MD).No.247 of 2004 is concerned, the suit can very well be filed in a representative capacity. In this connection, it is apt to mention the judgment reported in 2005 (5) CTC 411, Chennimalai Yarns Pvt.Limited Vs. S.Chandrasekar, wherein, it has been held as under:-
?Order 1 Rule 8, CPC is the enabling rule, prescribing the condition to file the suit or to be sued in the representative capacity. When the permission has been granted, it becomes the duty of the Court to direct notice to the opposite parties. It is contended that the requirements of Order 1 Rule 8 CPC has not been complied with and that the notice to other share holders are not issued. In support of this contention that no public notice was issued to other share holders, no material had been produced. In the absence of any material, it is not possible to accept the contention that the necessary conditions of Order 1 Rule 8 CPC is not complied with. The contention of the revision petitioners raising objection regarding the representative capacity of D-6 cannot be accepted. However it is open to the parties to put forth their objection at the time of adducing evidence.?
17. As a Member of the Church of the petitioner in O.S.No.95 of 2004, which is undisputed fact, the petitioner is entitled to prosecute the suit and therefore, the learned Judge ought not to have dismissed the interlocutory application and ought to have conducted the trial and come to the conclusion in the presence of the petitioners in Civil Revision Petition Nos.39 of 2005 and 328 of 2006. Therefore, the order impugned in C.R.P(MD).No.247 of 2004 is liable to be allowed.
18. For the foregoing reasons and discussions, the order passed in I.A.No.359 of 2004 in O.S.No.(MD).No.95 of 2004 stands set aside. Since the order in I.A.No.359 of 2004 stands set aside, the order passed in I.A.No.427 of 2004 in O.S.No.95 of 2004 also stands set aside. The Court below is directed to implead the parties in I.A.No.427 of 2004 in O.S.No.95 of 2004. Both C.R.P.No.39 of 2005 and 328 of 2006 stand allowed. Similarly, C.R.P.(MD).No.247 of 2004 filed by Arputha Dhas against I.A.No.360 of 2004 in O.S.No.95 of 2004 also stands allowed. In the result, this Court sets aside all the interlocutory orders which are impugned in these Civil Revision Petitions and allow the Civil Revision Petitions and the matters are remitted back to the Court concerned for fresh disposal, on merits and in accordance with law without being influenced any of the observations made hereunder. No costs. Connected miscellaneous petition is closed.
To (1)The Principal Sub-Judge, Nagercoil.
(2)The Court Keeper, VR Records, Madurai Bench of Madras High Court, Madurai..