Bishop Diocesan Office, Kanyakumari Diocese vs A. Johnson and Others

M. Karpagavinayagam, J.—Johnson, the First Respondent herein filed the suit seeking declaration that the resolution dated 23.12.1996

removing him from the membership of C.S.I. Church, Chengode, is illegal and for consequential injunction restraining the defendants/appellant and

respondents 2 and 3 herein from taking any action against him on the basis of the said resolution.

After trial, the suit was decreed in favour of the plaintiff, the first respondent herein. Even in the appeal filed by the defendants 1 and 2, the said

judgment and decree of the trial Court were confirmed. Hence, the second appeal.

According to the plaintiff, the first respondent herein, he is one of the members of the Church, viz., Chenkodi Pastorate Church within the

Kanniyakumari C.S.I. Diocese. The plaintiff was appointed as Honourary Manager of the Diocesan Book Depot on 8.8.1988. The first defendant

Bishop is the ex-officio member of the Book Depot. Since the plaintiff supported the Secretary of the Church, the Bishop developed ill-feeling

towards the plaintiff. Since one Ebenezer working as Sales Officer committed misappropriation, the defendants without any notice to the plaintiff,

putting the blame on the plaintiff, passed an order forfeiting the membership of the plaintiff. Hence, the plaintiff filed the suit for declaration that the

said order is invalid and for consequential injunction.

According to the defendants, the issue would relate to the internal affairs of the C.S.I., and as such, the plaintiff ought to have gone to the C.S.I.

Diocese for settling the dispute and hence, the plaintiff would not be entitled to the relief sought for.

The relevant issues were framed in the trial Court. During the trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A5 were marked

through him. On the side of the defendants, no one was examined and however, Exs.B1 to B4 were marked.

The trial Court on consideration of the materials on record, found the issues in favour of the plaintiff granting the relief sought for.

As indicated above, the appellate Court as well in the appeal filed by the defendants 1 and 2 would hold in favour of the first respondent, the

plaintiff. Hence, the second appeal by the first defendant alone.

Mr. Selvaraj, learned counsel appearing for the appellant, would raise one and the only point with reference to the maintainability of the suit.

According to him, all the defendants, namely, the appellant and the respondents 2 and 3 are neither natural persons nor juridical persons and as

such, the Courts below should have exercised the power under Order VII, Rule 10, C.P.C. by either returning the plaint to the plaintiff or should

have rejected the plaint for the reason that the Civil Court cannot grant a decree against a person who is neither a natural born person nor a

juridical person unless Order 1, Rule 8, C.P.C. is invoked.

I have heard the counsel for the caveator/first respondent.

The question relating to maintainability of the suit on the ground that the defendants, appellant and respondents 2 and 3 are not natural persons

or juridical persons has never been raised in the written statement nor any claim made to frame the issue before the trial Court. It is also admitted

that this point has not been raised even before the lower Appellate Court. Thus, it is obvious that for the first time, this point has been raised before

this Court in the second appeal.

In order to substantiate the question relating to the maintainability, Mr. Selvaraj cited an unreported judgment in O.S.A. Nos.285 and 293 of

1983 dated 26.9.1995 by pointing out some of the observations made by the Division Bench to the effect that the plaintiffs are not juridical or legal

persons and so they cannot claim any relief in a Court of law and such right can be claimed only by a natural person or a juridical person. It is

urged before this Court that the relief cannot be granted in a suit filed against a person who is not a natural person or a juridical person.

On the other hand, Mr. Vijayakumar, learned counsel for the caveator would cite the authorities in Rajendra Pratap Singh Vs. Rameshwar

Prasad, , Arul Jothi and Co. and 4 others Vs. Sri Shanmugha Trading Co., ; V.V. Textiles v. Mahavir Fabrics, 2001(4) CTC 409 : 2001(3)

L.W.576 and RM.AL. Visalakshi Achi (died) and two others Vs. RM. Seenivasan and three others, and would contend that in the absence of any

plea being made before the trial Court through the written statement or through any evidence, the appellant cannot be permitted to raise the said

question before this Court and if such a permission is granted, it would tantamount to depriving the right of the plaintiff to adduce evidence before

the trial Court to establish the maintainability of the suit.

I have carefully considered the rival contentions and also gone through the judgments impugned.

Mr. Selvaraj rightly would not refer to the merits of the case as both the Courts below have given a factual finding with reference to the merits

of the case of the plaintiff and granted decree in favour of the plaintiff. The only question that has been raised before this Court is that a claim

cannot be made by the plaintiff against a person who is not a natural or juridical person.

Though it is stated that when the plaintiff is a natural person, it cannot be stated that the appellant and the respondents 2 and 3 are the natural

persons or juridical persons. There is no dispute in the fact that such a claim was never made by the defendants either in the written statement

before the trial Court or in the grounds of appeal filed before the first appellate Court.

Under Order 8, Rule 2 of C.P.C., it is incumbent on the contesting defendants to raise all the materials to show that the suit is not maintainable.

When there is no specific plea in the written statement with reference to the question which has been raised before this Court, there is no

opportunity given to the plaintiff to establish by adducing the materials that the defendants are juridical persons.

It is settled law that the question of law can be raised for the first time in the appeal if all the facts necessary for determination are on the

record. It is not the case of the appellant before this Court that the facts and materials for determination of the said question are available on the

record.

The observations made by the Division Bench in O.S.Nos. 285 and 293 of 1993 dated 26.9.1995 would not be of any help to the appellant

as in that case, the said observations were made on the materials available on record. That is not the case here.

Therefore, this Court is unable to permit the appellant to raise this question of law which has never been raised before the Courts below and as

such, the prayer of the appellant that there is a substantial question of law has to be rejected even at the admission stage, as there is no basis to

frame the said question of law as substantial. Hence, the second appeal is dismissed. Consequently, C.M.P.No. 15658 of 2003 is also dismissed.