IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2009 CORAM THE HON'BLE MR. JUSTICE K.CHANDRU ORIGINAL APPLICATION NO.329 OF 2009 AND APPLICATION NO.1561 OF 2009 IN C.S.NO.295 OF 2009 AND ORIGINAL APPLICATION NO.492 OF 2009 AND APPLICATION NO.2171 OF 2009 IN C.S.NO.423 OF 2009 ORDER Heard the respective counsel for parties and perused the records. 2.C.S.No.295 of 2009 is filed by one Laity Association of CSI-Madras Diocese represented by its General Secretary and Vice President. The suit is filed for a declaration that the fifth defendant (Rt.Rev.Dr.V.Devasagayam) cannot hold the post of Bishop of Church of South India-Madras Diocese beyond 1.5.2009. It also prayed for a mandatory injunction, directing defendants 1 to 4 to take action in terms of Clause 2 of Chapter VI of the Constitution of the Church of South India. A further prayer is for a mandatory injunction directing the defendants 2 and 3 to issue a mandate to the fourth defendant in respect of the nomination of Bishopric candidates to the post of Bishop of Church of South India - Madras Diocese. 3.The said plaintiff has filed an application in O.A.No.329 of 2009, seeking for grant of interim injunction restraining the fifth defendant from holding the post of Bishop of CSI - Madras Diocese beyond 1.5.2009. In Application No.1561 of 2009, the same plaintiff Association also sought for a direction to respondents 1 and 2 to send a mandate to the fourth respondent to start the election process of bishopric falling vacant in the Madras Diocese immediately as per Clause 2 of Chapter VI of Constitution of CSI. 4.When these matters came up on 16.4.2009, the respondents were directed to be served with notice. Accordingly, they were served. On 29.4.2009, this Court recorded the statement of first and second respondents that the Executive Committee of the Synod was seized of the issue relating to the tenure of the fifth respondent and that the Synod will decide the issue relating to the continuance of the fifth respondent as the Bishop. The Synod also will address the issue relating to the tenure of fifth respondent and take a decision in accordance with their Constitution. 5.When these matters were pending, the second defendant in the suit, i.e. Moderator of CSI (Rt.Rev.D.J.Gladstone), issued a communication, dated 30.4.2009, stating that the term of office of the fifth respondent Bishop will come to an end on 1.5.2009 and that he may continue as a caretaker Bishop of the CSI Diocese from 2.5.2009 till such time the Executive Committee of Synod takes a decision as per the interim order passed by this court, dated 29.4.2009. 6.In view of these developments, the fifth respondent Bishop filed a suit in C.S.No.423 of 2009, seeking for a declaration that he is entitled to continue to hold office of Bishop in Madras CSI till he completes the age of 65 years and that the letter, dated 30.4.2009 issued by the Moderator (2nd respondent) was contrary to the Constitution of CSI. He also sought for a permanent injunction retraining the defendants in that suit from interfering with his functioning as Bishop of Madras CSI - Madras Diocese. He also filed O.A.No.492 of 2009 and application No.2171 of 2009. 7.Even before the suit, the fifth respondent Bishop filed an appeal being O.S.A. No.135 of 2009 to question the order, dated 29.4.2009 made in O.A.No.329 of 2009 in C.S.No.295 of 2009. When that matter came up for admission, the Division Bench of this court noted that a meeting of Synod is convened on 4.6.2009 for taking a decision on the appointment of a new Bishop. In such view of the matter, a status quo order till 26.5.2009 was granted. It was also stated that till an appointment is made by the competent authority, the Bishop can continue. 8.In O.A.No.492 of 2009 in C.S.No.423 of 2009, the prayer is for an interim injunction, restraining the respondents from interfering with the Bishop holding his office and discharging the functions of Bishop of Madras Diocese, CSI, pending disposal of the suit. In A.No.2171 of 2009, the prayer is for a stay of operation of letter, dated 30.4.2009 issued by the Moderator to the applicant Bishop. 9.When these two matters came up on 14.5.2009, a vacation judge of this court, after noting the pendency of the OSA before the Division Bench, granted a similar order. These two applications were directed to be posted along with the OSA No.135 of 2009. 10.It is to be noted that the said OSA No.135 of 2009 itself came to be disposed of by a final order, dated 9.6.2009. These two applications were directed to be posted before this court. In paragraphs 6, 7 and 8 of the order of the division bench, it was observed as follows: "6.With reference to the argument made by Mr.R.Thiagarajan, learned Senior Counsel, it is seen that the learned Single Judge after recording the statement made by the counsel has stated that the Synod shall address the issue relating to the tenure of the fifth respondent and take a decision in accordance with the Constitution and other rules of procedures on or before 07.06.2009. Hence this sentence in the order is quite in consonance with the argument made by the learned Senior Counsel for the appellant that the tenure should be in accordance with the Constitution. With regard to the power to decide the tenure by the Synod, we are of the view that the matter has to be adjudicated with reference to the power conferred on the Synod. It is also stated across the Bar that as on date no decision has been taken by the Synod and there is nothing remains to be putforth before this Court on the basis of the decision of the Synod which was directed to be done before this Court on 08.06.2009. 7.Having regard to the totality of the circumstances of the case, we are of the view that the learned Single Judge in the impugned order only recorded the submission made across the Bar by the counsel and further stated that the Synod shall address the issue relating to the tenure of the fifth respondent and take a decision in accordance with the Constitution and other rules of procedures and as such there is nothing perverse or nothing in the order to go against the Constitution as the order clearly states the decision should be taken in accordance with the Constitution and other rules of procedures only. 8.It is also brought to the notice of this Court that the suit in C.S.No.423 of 2009 was filed by Rt.Rev.V.Devasagayam, 5th respondent in this Original Side Appeal seeking for the relief to declare that he is entitled to continue to hold the office of Bishop in Madras, Church of South India- Madras Diocese till the completion of his sixty fifth year of age and other ancillary incidental reliefs. In the Application No.2171 of 2009 filed for temporary injunction restraining the respondents from interfering with the applicant's holding the office and discharging the functions of the Bishop in Madras, the Court has passed an order to the effect that there will be an order of status-quo till 26.05.2009 and it was made further clear that till the appointment is made by the competent authority, the appellant (who has been continuing as Bishop) is entitled to continue. In view of the said order, we are of the view that the same order would continue till further orders are passed by the learned Single Judge in the civil suit and other connected applications." 11.In the light of the directions issued by the Division Bench, all the matters came to be posted before this Court. The respective respondents in the applications have filed their counter affidavits. They have also filed supporting documents in the form of typed set and additional typed set, after circulating the same to the respective opposite side. 12. The short question that arises for consideration in these batch of interim applications is whether Rt.Rev.Dr.V.Devasagayam is entitled to continue as Bishop of Madras CSI- Madras Diocese till he reaches the age of 65 years or whether in terms of resolution of the Executive Council at the time of appointment, he has to vacate his office after the completion of 10 years, i.e. on 1.5.2009. 13.All the parties have agreed that the office of the Bishop is covered by the Constitution of the Church of South India, which has a body of Rules framed by the CSI. A typed copy of the book was circulated for reference. 14.Chapter V of the Constitution deals with the Ministry of Church and Clauses 12(a) and (b) deal with duration of appointment and voluntary retirement of a Bishop. For the sake of convenience, Clauses 12(a) and (b) of Chapter V may be usefully extracted below: "12(a)Duration of Appointment - The Bishop of a diocese shall remain Bishop of that diocese until he resign, or accept the charge of another diocese, or depart permanently from the diocese or be deprived of his charge by sentence of the Court of the Synod, or be adjudged by the Executive Committee of the Synod to be mentally, physically or otherwise incapable of discharging the duties of his office. A bishop shall retire on completion of his 65th years of age (S.78:07) (b)Voluntary Retirement - The bishop of a diocese may opt for voluntary retirement any time after completing ten years of service as a Diocesan Bishop. A bishop who has voluntarily retired will be entitled to such retirement benefits as may be prescribed by the Synod Executive Committee. The Executive Committee of the Synod or the diocese concerned may use his services in an alternative field of ministry with such emoluments and perquisites as are fixed by the Executive committee of the Synod or of the diocese, as the case may be. A bishop who has voluntarily retired will be a member of the Synod and the Council of Bishops, until he attains the age of 65, but shall not hold the office of Moderator or Deputy Moderator." (Emphasis added). 15.Clause 13 (Chapter V) deals with compulsory resignation. Chapter VI deals with election, appointment, consecration and installation of Bishops. Clause 6.2 obliges the Moderator to send to the Secretary of the Diocesan Council his mandate to summon a meeting of the Executive Committee of the Diocesan Council to arrange for the election of a panel of names for the bishopric. Clause 6.5 deals with the Secretary of the Diocesan Council, on receiving mandate, to convene a meeting of the Executive Committee of the Diocesan Council and in turn, the Executive Committee shall elect a sub committee, consisting of a lay member of the Diocesan Council who shall act as Chairperson of the special meeting of the Diocesan Council to be convened for the purpose and as the Convener and Chairperson of the Sub Committee and four other lay members of the Diocesan Council. 16.Thereafter, nominations are called for including the nomination of the Executive Committee of Synod and it shall be published and circulated to all members of the Diocesan Council. Clause 17 obliges that from the nominations made by the members of the Diocesan Council and the nominations if any made by the Synod Executive Committee, the Diocesan Council shall elect a panel of not less than two and not more than four persons and all of whom must be supported by a majority of the members of the Diocesan Council present and voting. 17.Thereafter, voting take place and the Moderator of CSI will have to examine the persons in the panel relating their physical fitness to do the duties of Bishop along with two other Christian Medical persons chosen by him. He must also get willingness of the persons elected to the panel to accept the office of the Bishop if appointed. The Moderator, thereafter, shall communicate to the General Secretary the names of all persons elected to the panel by the Diocesan Council. The General Secretary shall take steps to secure by public notice, the election of those persons to the panel in all Churches of the diocese, for which an appointment of Bishop is to be made. If objections are not sent to the General Secretary, the result of the election shall be submitted to the Board consisting of Moderator and six members appointed by the Executive Committee of Synod, excluding all representatives of diocese concerned. 18.As per clause 31, it is this Board will appoint the Bishop from those elected to the panel by the Diocesan Council. Under clause 32, after the Board made an appointment under clause 31, the Moderator shall inform the General Secretary of the name of the person appointed, which was informed to all concerned. It was thereafter, the Executive Committee of Synod will confirm the appointment and the same would be reported to the Moderator. Thereafter, the Moderator and the General Secretary shall in the name of the Executive Committee will execute the certificate of confirmation. Under clause 38, the Consecration of the Bishop will take place. 19. In the light of this Constitution, on 5.4.1999, the Selection Board of the Madras Diocese met and recommended the case of Rt.Rev.Dr.V.Devasagayam to the Moderator to consecrate him as a Bishop of Diocese of Madras. It is stated that the members, after a prolonged consideration, decided to restrict the period of appointment of Bishop for a period of 10 years. After this minute was communicated, the General Secretary of CSI Synod wrote a letter, dated 7.4.1999 expressing his doubt regarding the curtailment of the period of office of the Bishop for 10 years as it was against the Constitution. Subsequently, in the meeting of the Diocesan Executive Committee held on 24.4.1999 and in the Resolution No.99.53, it was resolved as follows: "99:53.- The Most Rev. William Moses, Moderator and the Bishop-in-charge of the Diocese of Madras announced the decision of the Selection Board which met on 5.4.99 that the Rev.Dr.V.Devasahayam has been duly selected for appointment as the Bishop of the Diocese of Madras for 10 years. a)The Committee unanimously resolved to accept and welcome the decision of the Selection Board and of the Executive Committee of the CSI Synod." 20.It was also seen that on the same day, the then Moderator wrote a letter to the 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." (Emphasis added). This letter is doubted by the contesting respondents by stating that on the same day, the Moderator having signed the minutes, dated 24.4.1999, could not have expressed a doubt of this nature. In any event, that is matter of evidence in the Trial of the suit. 21.It is in this backdrop, the respective learned counsel addressed their arguments. Mr.S.Parthasarathy, learned Senior Counsel appearing for Ms.Pushpa Sathyanarayanan, counsel for the plaintiff in C.S.No.295 of 2009, filed by the Association of Laity, stated that the Bishop having agreed to serve a term of 10 years and the Executive Committee also decided to curtail the term to 10 years, it is not open to the Bishop to seek for continuance in his office contrary to the term prescribed. He also submitted that the Rule of CSI Diocese is in the nature of a contract and the Bishop having been in the office for a term of 10 years, cannot, by virtue of the Court order, get an extended tenure. He also submitted that Clause 12(a) cannot be invoked by the Bishop for continuance in the office. In any event, no injunction can be granted in terms of the Specific Relief Act. 22.Mr.A.M.Packianathan Easter, appearing for the third defendant (Deputy Moderator), took this court to the averments made in his counter affidavit, dated 24.4.2009 and also adopted the arguments of the learned Senior Counsel appearing for the plaintiff. 23.However Mr.N.R.Chandran, learned Senior Counsel, leading Mr.P.S.Venkatasubramanian appearing for the fourth respondent (Secretary of CSI Madras Diocesan Council) contended that the suit itself is not maintainable and the plaintiff Association has become defunct since they have not filed the statutory returns as contemplated under the Tamil Nadu Societies Registration Act, 1975. He has also submitted that the Bishop is entitled to continue till reaching the age of 65 years. He submitted that the term of appointment cannot be curtailed and the Warrant of Appointment issued to the Bishop clearly stipulated that the appointment is in terms of the Constitution which can be referable to Clause 12(a). 24.Mr.R.Thiagarajan, learned Senior Counsel appearing for Mr.V.Sanjeevi, counsel for the Bishop and plaintiff in C.S.No.423 of 2009, submitted that the order appointing the Bishop did not contain any retricted period and no authority of CSI can act contrary to the bylaws of the CSI. In fact, even at the time of appointment of the Bishop, there were some doubts expressed about acting contrary to the Constitution of the CSI. He further placed reliance upon Clauses 31 and 32 of Chapter VI of the Constitution. Once a person is duly appointed as the Bishop and was also consecrated in his office, there is no question of reducing the term to 10 years. In any event, if the Diocesan Council did not return the nominations and the Moderator also not order for a fresh election, then the person, who was appointed as Bishop, shall have a full term of his office as per the Constitution of the CSI. 25.The learned Senior Counsel also submitted that the objections raised by the defendants will have to be tried in the suit. He further submitted that in the earlier interim order, the issue relating to the tenure of the Bishop was directed to be considered by the Synod. When the matter was referred to the Synod Legal Questions Committee, the said body in its meeting held on 21.4.2009 resolved as follows: "As far as the matter related to the tenure of the Rt. Rev. Dr.V.Devasahayam, the Bishop in Madras Diocese, the Committee taking into consideration the fact that the Rt. Rev. Dr. V.Devasahayam was appointed and consecrated as the Bishop in Madras Diocese with effect from 2nd May 1999 for a period of 10 years in contrast of Rule 12 of Chapter V of CSI Constitution, which provides that the Bishop shall hold the Office until he attains the age of 65 years. Conditional appointment of the Rt. Rev. Dr. V.Devasahayam was totally outside the frame work of the CSI Constitution governing the tenure of the Bishop there under. The conditional appointment of the Bishop is ultra virus of the CSI Constitution. Hence, the Committee unanimously resolved that the Rt. Rev. Dr. V.Devasahayam, the Bishop in Madras Diocese shall retire on attaining the age of 65 years as per the CSI Constitution." 26.According to the learned Senior Counsel, this resolution was communicated to all concerned. In any event, it is admitted by all sides that there is no decision taken by the Synod on this issue. He further submitted that even when the resolution was made on 21.4.1999, the then Moderator in office had raised the question of restricting the term of office will be contrary to the Constitution. 27.The learned Senior Counsel also referred to the provision relating to the voluntary retirement, contained in Clause 12(b) (Chapter V), wherein an option to step down or to continue after a period of 10 years is given to the Bishop. If he did not opt to go out, Clause 12(a) will come into operation. Hence the Bishop can be retired only on the completion of 65 years of age. Therefore, he wanted the interim injunction to be continued till the disposal of the suit, as there was a prima facie case in favour of the Bishop. Even on grounds of balance of convenience, it is stated that the office of Bishop is an elected office and if new elections are held, then he cannot be restored to office. 28.Mr.V.Prakash, learned Senior Counsel, leading Mr.Adrian D.Rozario, representing the Moderator and defendant, stated that due to paucity of time, his counter affidavit filed in M.P.No.1 of 2009 in O.S.A.No.135 of 2009 may be taken as the counter affidavit for this application. He also submitted that the power of appointment vested with an appointing authority inhere with them the power to reduce a tenure. The appointing authority did not appoint the Bishop in terms of Clause 12(a) of Chapter V. The Bishop having had the benefit of appointment is estopped from going against the term offered to him. He also submitted that it is not open to the Bishop to place any correspondence to get over the original offer of appointment which was accepted by him. He submitted that the bylaws of the Association is in the nature of contract and therefore, there was no prohibition in entering into a contract. In such circumstances, it cannot be held to be contrary to the bylaws of the Association. 29.Mr.V.Prakash, learned Senior Counsel also placed reliance upon a Division Bench judgment of this court in Dowager Rani Lalitha Kumari Devi and others vs. The Raja of Vizianagaram and others reported in AIR 1954 MADRAS 19. This is for the purpose of showing that a person cannot accept and reject the same instrument and that was the foundation of the law of election. He relied upon the following passage found in para 119 of the said judgment, which reads as follows: "119. ... The question that was thus left over undecided by the Supreme Court has now to be determined. "The general rule is that a person cannot accept and reject the same instrument and this is the foundation of the law of election, on which Courts of Equity particularly have grounded a variety of decisions in cases both of deeds and of wills though principally in cases of wills, because deeds being generally matter of contract, the contract is not to be interpreted otherwise than as the consideration which is expressed requires." 120.In __'(1873) LR 7 HL 854 (O)', Lord Cairns observed: "By the well settled doctrine which is termed in the Scotch law the doctrine of approbate and reprobate and in our Courts more commonly the doctrine of election, where a deed of will professes to make a general disposition of property for the benefit of a person named in it, such a person cannot accept the benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with them." With particular reference to deeds, the principle is that the settlor must be taken to intend that all the obligations mentioned in the deed form the consideration for the benefit; that the deed with its benefits and burdens constitute one indivisible transaction which must stand or fall in its entirety. ..." Basing upon this passage, he wanted to contend that the Bishop having accepted a tenure for his office, cannot seek for an injunction till he reaches the age of 65 years. 30.This judgment has no application, as in that case, a Will was considered in terms of the Hindu Law and while considering the deed, the Division Bench made parameters under which a deed can be construed. 31.The learned Senior Counsel also relied upon the judgment of the Supreme Court in State of Orissa and others Vs. Narain Prasad and others reported in (1996) 5 SCC 740. According to him, when a person enters into a contractual obligation with his eyes wide open and worked the contract, cannot be allowed to turn around and question the very same contract. He relied upon the following passage found in paragraph 21 of the said judgment, which reads