D. Rajakumar v. G. Rajkumar — 1994 DIGILAW 1024 (MAD)

Judgment :- 1. This petition is filed by one D. Rajkumar for permission to file an appeal against the judgment and decree dt. 8.6.1994 in C.S. No. 562/90 on the file of the Original side of this Court with reference to adverse finding on issues 1 to 8 in paragraph 20 of the judgment. It is stated in the affidavit filed in support of the petition that the petitioner is a member of the Church of South India (C.S.I.), an unregistered association of persons consisting of several lakhs of Protestant Christians residing in South India. The plaintiff in the suit is one G. Rajakumar. He filed the suit against Rev. N. Azariah, a member of C.S.I. who was elected as General Secretary continuously for four terms between 1982 to 1990. While being the General Secretary, he offered himself as a candidate and came to be elected as Bishop in Madras Diocese on 2.1.1990. It was that election which was challenged in the suit. In the suit Rev. N. Azariah and two others were impleaded and several reliefs were sought. One of the reliefs is for declaration that the election of said Rev. N. Azariah as Bishop is illegal and void. The suit was instituted in 1990 and disposed of on 8.6.1994. It was held by the Court that the election was valid and the General Secretary was entitled to contest the election for the post of Bishop. 2. It is stated in the affidavit that the decision and decree in the suit are binding on the Madras Diocese, and as such it binds all the members of the Diocese, including the petitioner herein. As he has no other remedy and he is aggrieved of the judgment, he has to prefer the appeal. 3. We ordered notice in this matter and the respondents have entered appearance. First respondent is the plaintiff in the suit. He has filed an affidavit supporting the case of the petitioner herein. He has stated in paragraph 2 of the affidavit that though he is aggrieved of the dismissal of the suit, he could not file an appeal due to his pre-occupation with several personal, family and business problems. The second respondent has filed a detailed counter affidavit. He has filed an affidavit supporting the case of the petitioner herein. He has stated in paragraph 2 of the affidavit that though he is aggrieved of the dismissal of the suit, he could not file an appeal due to his pre-occupation with several personal, family and business problems. The second respondent has filed a detailed counter affidavit. In that counter affidavit, the second respondent has referred to the fact that another suit has been filed under O. 1, R. 8 of the Code of Civil Procedure as representative suit by the three members of the Diocese and it is pending as C.S. No. 10 of 1991. That suit was filed in December, 1990 and it has been pending since then on the file of the Original Side of this Court. It is pointed out in the counter affidavit that the reliefs prayed for in that suit are the same, as now claimed in the appeal by the petitioner, and there is no need for granting leave to appeal against the judgment in favour of the petitioner herein. It is also pointed out that the suit out of which this appeal arises is not one under O. 1, R. 8 of the Code of Civil Procedure and it has been filed by the first respondent herein only in his individual capacity. 4. A typed set of papers has been filed by the learned counsel for the second respondent containing a copy of the plaint in C.S. No. 10 of 1991. One of the prayers in the suit is for declaration that the election and consecration of fifth defendant (N. Azariah) as the Bishop of Madras Diocese is illegal and void. Reasons arc set out in paragraph 22 of the said plaint. For the same reasons, the same relief was prayed for in C.S. No. 562 of 90 out of which this appeal arises. The first prayer in the plaint is for a declaration that the election and selection of first defendant (referring N. Azariah) is illegal and void. Reasons arc set out in paragraph 22 of the said plaint. For the same reasons, the same relief was prayed for in C.S. No. 562 of 90 out of which this appeal arises. The first prayer in the plaint is for a declaration that the election and selection of first defendant (referring N. Azariah) is illegal and void. It is therefore, contended by learned counsel for the second respondent that there is already a representative suit pending in which all the members of the Diocese will be interested and they will be bound by the decision in that suit and there is no necessity for granting leave to file an appeal against the judgment and decree in C.S. No. 562 of 1990. It is also submitted by learned counsel for the second respondent that he wanted both the suits to be tried together, but an objection was taken by the plaintiff that since representative suit will take a long time for deciding, there is no necessity for clubbing both the suits and that objection was upheld by the Court and that is why C.S. No. 562 of 1990 was tried separately. Whatever it may be, we are only concerned with the question whether leave should be granted in favour of the petitioner for Tiling an appeal against the judgment in C.S. No. 562 of 1990. 5. The contention urged by learned counsel for (he petitioner is that the judgment in C.S. No. 562 of 1990 will be binding on the petitioner as well as the other members of the Diocese. Therefore, he is aggrieved by the said judgment. Reliance is also placed on a judgment of a Division Bench of this Court in P. Ammal v. State of Madras (A.I.R. 1953 Mad. 485) in which it was held that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. It is contended by learned counsel for the petitioner that it may not be possible for the petitioner to attack the correctness or the view taken in C.S. No. 562 of 1990 in the other pending suit and therefore, leave should be granted. 6. We are of the view that the prayer in this application cannot be granted. It is contended by learned counsel for the petitioner that it may not be possible for the petitioner to attack the correctness or the view taken in C.S. No. 562 of 1990 in the other pending suit and therefore, leave should be granted. 6. We are of the view that the prayer in this application cannot be granted. Even in the judgment cited by learned counsel for the petitioner, the Division Bench has pointed out that it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. That principle will apply here on the facts of this case. Further, in the present case both the suits have been pending from 1990. It is not as if the petitioner was not aware of the pendency of the suit in C.S. No. 562 of 1990 or C.S. No. 10 of 1991. Nowhere he has staled in his affidavit that he was not aware of the date of the decree in the suit in C.S. No. 562 of 1990. 7. It must be noted that the same senior counsel who have appeared for the plaintiff in C.S. No. 562 of 1990, are appearing for The plaintiffs in C.S. No. 10/91. Very same senior counsel is appearing in this petition for leave to appeal. Significantly, the pendency of suit C.S. No. 10 of 1991 has not been disclosed in the affidavit filed in support of the present petition. Obviously, the plaintiffs in the two suits and the present petitioners are acting in concert. 8. The person who instituted the suit C.S. No. 562 of 1990 did not choose to prefer an appeal within the time prescribed by law. After the expiry of the limitation prescribed for preferring an appeal, the petitioner has chosen to come forward with this petition for leave to file an appeal. He has been set up only for getting over the period of limitation. The plaintiff has now chosen to file a counter-affidavit supporting the claim of the petitioner stating that he could not prefer the appeal on account of his other preoccupation. If the contention of the petitioner is accepted, then every member will start filing an appeal against the judgment in C.S. No. 562 of 1990 and come to this Court one after another. 9. If the contention of the petitioner is accepted, then every member will start filing an appeal against the judgment in C.S. No. 562 of 1990 and come to this Court one after another. 9. We are not inclined to have the record of this Court burdened with such appeals particularly when there is a comprehensive suit pending which is a representative suit, pending as C.S. No. 10 of 1991. In these circumstances, we arc not satisfied with the bona fides of the claim of the petitioner. Consequently, we dismiss the application for grant of leave. No costs.