PATNA HIGH COURT
SINGLE BENCH
( Before : Shiva Kirti Singh, J )
THE CHURCH OF NORTH INDIA AND OTHERS — Appellant
Vs.
THE ANGLICAN CHURCH OF INDIA AND OTHERS — Respondent
Misc Appeal No’s. 67 and 68 of 2000 (R) , C.R. No. 435 of 2000 (R)
Decided on : 01-11-2000
ORDER
Shiva Kirti Singh, J.—Both the Misc. Appeals arise out of a common order of the trial court dated 10th May, 2000 passed by Shri A.P. Verma, Sub judge III, Ranchi in Title Suit No. 161 of 1998 whereby he has allowed the application of the plaintiffs for appointment of receiver and also for temporary injunction against the defendants. Misc. Appeal No. 68 of 2000 (R) has been preferred by the appellants/defendants against order in receivership matter and Misc. Appeal No. 67/2000 (R) has been preferred by the defendants against order in the injunction matter. Civil Revision No. 435/2000 (R) has been preferred by the defendants/petitioners against a subsequent order dated 28.9.2000 passed by the same trial court in the aforesaid title suit no. 161/98 whereby certain follow up actions have been ordered for effective implementation of the earlier order under challenge in Misc. Appeal No. 67 and 68 of 2000 (R). Since all the three matters are between the same parties and arise out of the same suit and involve common question of facts and law hence they have been heard together and are being disposed of by this common order. The plaintiffs in the suit claim to be the Anglican Church of India and persons associated with it who claim independent identity as a Church of India in the Chhotanagpur Areas. On the other side of the litigation is the Church of North India and persons associated with it. In the title suit filed in the year 1998 the plaintiffs have prayed for declaration that the plaintiffs did not lose their identity etc. due to unification of Churches in 1970 into Church of North India. Further declarations have been sought that Chhotanagpur DIOCESAN Trust Association (CNDTA) by virtue of being a Company, continued to maintain its independent legal entity inspite of unification of Churches in the year 1970 and that the properties described in Schedules 1 to 4 belong to the DIOCESE of Chhotanagpur, managed and controlled by CNDTA, plaintiff no. 14. Some other declaration connected with the constitution of CNDTA as well as regarding certain transactions concerning properties, institutions, cemetaries and educational institutions etc. have also been sought in the suit, besides a prayer to issue temporary/permanent injunction restraining the defendants from interfering with the right of the plaintiff as members of Board of Trustees.
2. The plaintiffs have given historical facts relating to existence of Churches in India prior to enactment of Indian Church Act, 1927 which recognized the severance of Church of England in India from the Church of England and made provisions incidental to and consequently such severance of legal Union between the Church of England and the Church of England in India. The plaintiff’s admit further developments up to the year 1970 when the Churches of India, Pakistan, Burma and Ceylon (CIPBC) were in existence. They also admit that the Church of North India (Defendant no. 1) is the Church constituted by unification of six 1 Churches including the United Church India on November 29, 1970. But the have claimed that some points of differences and for that reason the Anglic Church of India asserted its independent existence and finally passed a respect in October, 1993 that the Anglican Char has not lost its identity in spite or unification of Churches in 1970 which had led the Church of North India.
3. The suit was contested by I defendants who filed their written statements and objected to maintainability suit on various grounds and also don’t the existence of any Anglican Church India. According to the defendants name of Anglican Church of India was the name of any known Church of India which formed CIPBC. It has further the denied that CNDTA is formed by Anger Church of India or is owned, possess controlled and managed by the plaintiff Averments were made in the writ statement regarding individual plaintiff claiming that many of them were order as priests in Church of North India a functioned as such for several years
4. During the pendency of the plaintiffs filed a petition for appointment receiver making certain allegation of the management by the defendant of schedule properties which according the plaintiffs application for appointment of receiver, is presently controlled managed by the defendants albeit violation of rules and objects etc the aforesaid petition was contested by defendants by filing a rejoinder. The parties filed several documents aises.
5. On behalf of appellants it in Appeal No. 68/2000 (R) it has been committed that a perusal of the order to appeal shows that the court was devoted more than 11 pages it petition the case of the parties and rival petitions and thereafter the learner Si Judge gave no findings as in whether found that the plaintiffs have good of success in the suit or even a prima facie case nor the court below gave any finding regarding danger of mismanagement, waste or misappropriation by the defendants or any special reasons to put the defendants out of possession through appointment of receiver. It was further pointed out that the court below did not consider the various tests laid down by the courts of law including this Hon’ble Court for appointment of receiver and failed to give any finding to justify its decision to allow the prayer for appointment of receiver.
6. After going through the materials on record as well as the impugned order this Court finds substance in the aforesaid contention of the appellants and does not find any merit in the contention advanced on behalf of the respondents that simply because the property relates to church and therefore dedicated to God hence no harm will be caused to defendants, by appointment of receiver.
7. On behalf of the appellants reliance was placed upon judgments of Madras High Court reported in AIR 1955 Mad 430 (Krishnaswami Chetty vs. Thangavelu Chetty & ors.) and AIR 1962 Mad 458 (Issar Das S. Lulla vs. Smr. Hari). Reliance was also placed upon a Division Bench Judgment of this Court reported in Tara Singh Vs. Surjadeo Singh and Others, , 1978 B.B.C.J. 288 (Hrideshwari Devi vs. Priyabrat) and upon a judgment of single judge reported in 1997 (1) All P.L.R 604 (Radhey Krishna Prasad vs. Amrika Devi). Some other judgment of Mysore and Delhi High Court were also relied upon by the appellants but no useful purposes will be served by adding to the long list of precedents because the proposition governing appointment of receiver as laid down in those judgments specially in the case of T. Krishnaswami Chetty (supra) which has been approved and followed by a Division Bench of this Court in the case of Tara Singh (supra) is not under dispute at all. A salient principles laid down in the aforesaid judgment is that an order appointing a receiver will not be made where it has the effect of depriving a defendant even of a defacto possession. In the present case in the very first paragraph of petition for appointment of receiver the possession and management of the defendants over the properties concerned is admitted by the plaintiffs. Further, that the plaintiffs case that in spite of unification of Churches in 1970 they maintained a separate identity cannot be accepted as a good case in view of a Division Bench judgment of Bombay High Court dated 19.1.99 in Appeal No. 1211/98 arising out of Company Appeal 3/97 (Nitin Mahadeo Pawar vs. United Church of Northern India). Hence after giving anxious consideration to all the facts and circumstances of the case this Court finds that no good ground has been made out by the plaintiffs/respondents for appointment of a receiver in the suit. Accordingly, the order under appeal in Misc. Appeal No. 68/2000 (R) is set aside and the appeal is allowed.
8. So far as injunction matter is concerned, it has been submitted on behalf of the appellants in Misc. Appeal No. 67 of 2000 (R) that as per settled law governing grant of temporary injunction the court below was not justified and legally correct in passing the impugned order of injunction by which defendant no. 2 has been restrained from transferring any land or from misusing any fund during the pendency of the suit, in absence of necessary finding that the plaintiffs have a prima facie case, that the balance of convenience lies in their favour and that they will suffer irreparable injury if injunction is not granted in their favour.
9. For the proposition governing grant of temporary injunction no authorities are required as the same has been settled by large number of Judicial precedents. However, the appellants referred to and relied upon a judgment of this Court in the case of Bhagalpur Rolling Mills Vs. Bhagalpur Electric Supply Co. Ltd., and a judgment of the Apex Court in the case of Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, . In the later case the Supreme Court has held that where the trial court grants temporary injunction without recording its prima facie satisfaction on merits the appellate court can set aside the trial court’s order even without examining the merits of the case.
10. In this case a perusal of the order under appeal shows that the court below has failed to examine the merits of the case of respective parties so as to arrive at its own conclusions. There are no findings given by the learned trial court either with regard to prima facie case or with regard to balance of convenience or irreparable injury. The documents of the parties have also not been considered by the court below. In such circumstances there is no option but to hold that the order under appeal is bad in law and fit to be set aside.
11. On behalf of respondents it was submitted that is not an usual case of dispute over individual property. The plaintiffs do not claim the properties as their personal properties and their main concern is that the religious properties held in trust by the trustees, whosover they may be, must be managed properly to serve the purpose of trust and benefit, the real beneficiaries of the trust. On the basis of such submission it was pleaded on behalf of the respondents that if this Court does not approve the order under appeal, it should put some restraint upon transfer of schedule properties under dispute and should also ensure that the plaintiffs are not deprived of their right to worship in the Churches managed by the defendants or of their right of customary burial in the cemetaries maintained and managed by the defendants.
12. In this context learned course for the respondents placed reliance upon a judgment of Madras High Court reported in AIR 1927 Mad 107 (Jana Md. Suleman vs. Kadir Sah Lebbai). In this judgment the court was dealing with the matter of temporary injunction in a dispute concerning office of Immar which was accepted as a well recognise office. In such dispute the court held that it is open to the court to issue a temporary injunction in the interest of the people as well as of the disputants and order to avoid breach of the peace The court further held that for the purpose performing a Mohammaden marriage the people cannot be compelled by such junction to engage a particular person officiate at marriage. This was held on the ground that Kaji is not an absolute necessity for the validity of a Mohammad’ marriage and people are not bound to if in any man obnoxious to them.
13. Relying upon aforesaid decisive it was submitted on behalf of the respondents that in the present case there is dispute between the followers of the Churches and hence in the interest of the people, the disputants and peace in the locality a temporary injunction may granted by this Court.
14. On the other hand, on behalf the appellants it was submitted that appellants/defendants have no object’ to plaintiffs’ participation in the pray and other functions held in the under the management of defendants a if they so like they can participate in prayer etc. at all the times when prayers are held and no separate is required to be fixed only for prayer the plaintiffs. It was further submitter the issue of organising prayer by petitioner of the choice of plaintiffs was not to in the injunction petition and in any of such arrangement would amount to reffering with the management of Church by the defendants.
15. Considering the contention of both the parties as well as larger issue relating to concerned parties as well as right of the plaintiffs to worship in the Churches concerned as per earlier practice, this Court is of the view that for the present no order of injunction is required to be issued by this court except issuance of a direction to the parties to maintain the status quo both with regard to mode and manner of worship in the concerned Churches as well as with regard to burial in cemetaries under the control of defendants, as per practice prevailing atleast since 1970 since the unification of Churches which resulted into creation and recognition of Church of North India.
16. With the aforesaid direction and observation the order under appeal in Misc. Appeal No. 67/2000 is also set aside and the appeal is allowed to the extent indicated above.
17. So far as Civil Revision No. 435 of 2000 (R) is concerned, it is noticed that only some of the plaintiffs opposite parties have appeared and no notice has been issued to other plaintiffs. However, no useful purpose will be served by keeping the said civil revision application pending for mere formality of dismissal because the order impugned in this revision application is merely a follow up action on the petition of plaintiffs for effective implementation of the orders which are under appeal in Misc. Appeals already disposed of by this order. Since the original order appointing receiver and issuing temporary injunction has already been set aside hence this civil revision is held to be infructuous and is dismissed as such because the impugned order is rendered ineffective due to setting aside of earlier order of the trial court dated 10.5.2000. In the facts of the case, there shall be no order as to costs.
(2000) 4 PLJR 810
Cases Referred
Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, AIR 1999 SC 2322 : (1999) 1 JT 332 : (1999) 1 SCALE 366 : (1999) 2 SCC 377 : (1999) 1 SCR 498 : (2000) 1 SLJ 260 : (1999) 1 UJ 767 : (1999) AIRSCW 2397 : (1999) 2 Supreme 5
Bhagalpur Rolling Mills Vs. Bhagalpur Electric Supply Co. Ltd., AIR 1974 Patna 269
Tara Singh Vs. Surjadeo Singh and Others, AIR 1964 Patna 362