After careful consideration it was unanimously resolved to appoint the Rev.Dr.V.Devasahayam and recommend to the Moderator to consecrate him as Bishop of the Diocese of Madras."
13.A letter from the Church of South India dated 11.4.1999 addressed to all the members of the Synod Executive Committee reads as follows:
"Rev.Devasahayam has expressed his desire, in writing, to hold the office of Bishop for not more than ten years for reasons that he shared with the Board and the Board has decided accordingly...." (emphasis supplied)
14.On 24.4.1999, a letter was addressed by the Moderator and Bishop to Rev.Samuel Jacob, the Secretary, CSI Madras Diocese, which reads as follows:
"The Board, after personal interview and careful study of the two candidates elected to the panel by the Madras Diocesan Council and giving due consideration of the needs of the Diocese, has decided to select Rev.Dr.V.Devasahayam for appointment as the Bishop of Madras Diocese for a period of ten years.
The Synod Executive Committee also has confirmed the above appointment.
I, therefore, hereby inform you and the Diocese that Rev. Dr. V.Devasahayam has been duly selected for appointment as the Bishop of the Diocese of Madras for a period of ten years. The order of appointment comes into effect from the date of the Consecration." (emphasis supplied) It is pertinent to point out that a copy of the above letter was addressed to the plaintiff Bishop Devasahayam.
15.The plaintiff Bishop Devasahayam has also attended the Diocesan Executive Committee meeting on the very day i.e., 24.4.1999, as a special invitee. In the meeting held on 28.8.1999, the minutes of the previous meeting held on 24.4.1999 was read and confirmed by the Executive Committee.
16.All the above communications would clearly indicate that the Bishop's Selection Board has taken into consideration all aspects relating to the candidates with regard to their health condition and unanimously decided to restrict the period of appointment and also in the interest of the diocese, for 10 years. Accordingly, it has made the appointment for only 10 years, and this was also approved subsequently and informed to the plaintiff bishop, and he also gave his consent in writing. Thereafter, the Synod has issued a certificate of election and appointment of the plaintiff for the Madras Diocese following which the act of consecration has also taken place as found 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 tenure as 10 years taking into consideration the health condition of both the candidates and has informed the same to the present bishop, and he has also consented therefor. Thereupon, he has also been appointed, and his appointment was confirmed in a meeting on 28.8.1999 by the Executive Committee of the Diocesan. Once the appointment was made only for a period of 10 years and the same has also been accepted by the first respondent bishop and subsequently confirmed by the Executive Committee of the Synod, now the first respondent bishop who did not make any murmur earlier, cannot now be allowed to state that his appointment was for a period till 65 years of his age and that too after the period of 10 years is over. (emphasis supplied)
19.Now the learned Senior Counsel for the first respondent bishop in support of his contentions took the Court to a letter dated 24.4.1999 written by the Moderator to the plaintiff bishop which reads as follows:
"I acknowledge the receipt of your letter regarding your order of appointment limiting your term of episcopal office for a period of ten years. In consultation with the Synod lawyers, I am to inform you that the retirement of Bishops is governed by the Constitution of the Church of South India, i.e., retirement at the completion of 65 years of age and that the term of office cannot be limited by any order contrary to the provision of the Constitution.
Ofcourse the Bishop is free to lay down office at any point of time before retirement on health grounds. I sincerely pray that the God Almighty to give you good health to complete your full term. I Invite you to arrange for the consecration retreat in Chennai with the available senior bishops as I am not free to lead the retreat. Be assured of my prayers as you and your wife prepare yourselves for this high calling."
20.On the contrary it was contended by the learned Senior Counsel for the appellants that the said letter was a fabricated one in order to suit the convenience of the first respondent bishop. The letter relied on by the first respondent's side cannot be acted upon for the reason that on the very day i.e., 24.4.1999, the CSI has addressed a communication to its Secretary wherein it has specifically stated that Devasahayam has been duly selected for appointment as bishop for a period of 10 years and it has come into effect from the date of the consecration. 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.Dr.V.Devasahayam for Madras Diocese. But it remains to be stated that it was an instrument for election and appointment. The election and appointment referred to in that document would refer to the earlier appointment of 10 years originally accepted by the bishop and confirmed by the Synod in its earlier proceedings. Had the contention of the first respondent bishop that his appointment was upto 65 years of his age and not for 10 years been true, the Synod should have clarified and set right the situation but not done so. All the above would clearly indicate that the Selection Board considering the health condition of both the candidates restricted the period as 10 years and out of these two persons, Devasahayam was selected, and he was also informed about the same and also the tenure of his office. The first respondent bishop has accepted the same and subsequently the appointment was made and confirmed by the Synod of CSI. Having accepted the appointment for a period of 10 years, now he cannot be permitted to say that he would continue till 65 years of age taking shelter under Rule 12(a). (emphasis supplied)
22.The Bench had an occasion to consider the matter in OSA No.135 of 2009 and has made a final order on 9.6.2009. While disposing of the said appeal, the Bench has observed that there would be an order of status quo till 26.5.2009 and it was made further clear that till the appointment is made by the competent authority, the appellant therein who has been continuing as Bishop is entitled to continue and the same order would continue till further orders are passed by the learned Single Judge. Pursuant to the above orders of the Bench, the learned Single Judge has passed the common order which is the subject matter of challenge in this appeal. Even at this stage, no appointment was made by the competent authority namely the Synod. As per Rule 16 of Chapter V of the Constitution, when the post of bishop becomes vacant, the charge and administration would devolve upon the Moderator who should administer with full jurisdiction until a new bishop is appointed. In the case on hand, by way of interim arrangement, the Moderator has permitted the first respondent bishop to continue as a caretaker bishop in the circumstances. Though the first respondent has not made out a prima facie case to continue him as Bishop, in view of the vacancy that is created, the first 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 for. So long as no permission was either applied or granted, it cannot be stated that the suit is in order. As such the suit framed is not maintainable.
24.In the result, both the original side appeals are allowed setting aside the order of the learned Single Judge and leaving the parties to bear their own costs. The first respondent/plaintiff is permitted to continue as caretaker bishop of the Madras Diocese till the new appointment is made by the competent authority, as per the observations made in this judgment. It is made clear that any of the observations made above will not stand in the way of Synod making new appointment. Consequently, connected MPs are closed.
nsv