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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Church of North India - Petitioner
Versus
Rt. Reverend Ashoke Biswas - Respondent
C.O. No. 863 of 2019
Decided On : 17-04-2019
SPECIFIC RELIEF ACT - SECTION 14(1)(B) - SUIT FOR SPECIFIC PERFORMANCE - CONTRACT OF PERSONAL SERVICE - BAR - BISHOP OF CHURCH - WHETHER EMPLOYEE - 2018 AMENDMENT TO SPECIFIC RELIEF ACT - APPLICABILITY - REJECTION OF PLAINT - ORDER VII RULE 11 CPC.
Fact of the Case:
The petitioner, a Synod of the Church of North India (CNI), filed an application under Article 227 of the Constitution of India challenging the order of the trial court dismissing its application for rejection of the plaint in a suit filed by the opposite party, a Bishop of the CNI, for a declaration that the decision of the Executive Committee of the Synod to superannuate him was wrongful.
Finding of the Court:
1. The suit was not barred by Section 14(1)(b) of the Specific Relief Act, 1963, as the service of the Bishop was not a 'personal service' as contemplated in the decisions rendered on the said provision. 2. The 2018 Amendment to the Specific Relief Act, 1963, which came into force during the pendency of the suit, was applicable to the present case. 3. The plaint should not be rejected at the outset as there was no bar of law or non-disclosure of cause of action.
Issues: 1. Whether the suit was barred by Section 14(1)(b) of the Specific Relief Act, 1963. 2. Whether the 2018 Amendment to the Specific Relief Act, 1963, was applicable to the present case. 3. Whether the plaint should be rejected under Order VII Rule 11 of the Code of Civil Procedure.
Ratio Decidendi: 1. The deletion of the illustrations to Section 21 of the Specific Relief Act, 1877, in the corresponding Section 14 of the successor Act of 1963, indicates that a contract of 'personal service', ipso facto, cannot be the sole factor to invoke the bar of Section 14(1)(b). 2. The service of the Bishop was not a 'personal service' as it was governed by the rules framed by the Executive Committee and the provisions of the constitution of the CNI, and not by the volition of the parties. 3. The 2018 Amendment to the Specific Relief Act, 1963, which omitted the reference to contracts dependent on the personal qualifications or volition of the parties, is applicable to the present case as the relevant date for ascertaining the applicability of the amendment is the date of passing of the decree. 4. The plaint should not be rejected at the outset as there is no bar of law or non-disclosure of cause of action.
Final Decision: The application under Article 227 of the Constitution of India was dismissed on contest, thereby affirming the impugned order. However, the issue of maintainability of the suit was left open to be decided by the trial court at the final hearing of the suit.
JUDGMENT :
1. The present application under Article 227 of the Constitution of India has been preferred by the defendant in a suit filed by the opposite party for declaration that the purported decision adopted by the Executive Committee of the Synod of the defendant in its 102nd meeting held on 18th August, 2018 and the decision communicated on 22nd August, 2018 are wrongful, and for consequential reliefs. By virtue of the impugned order dated February 5, 2019, the Sixth Bench, City Civil Court at Calcutta dismissed the application of the petitioner under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint of the said suit.
2. Learned senior counsel appearing on behalf of the petitioner opens his arguments by submitting that the considerations which should weigh with the court at the time of deciding applications for rejection of plaint have to be limited to a plain and meaningful reading of the plaint, the documents referred to therein and the documents filed/annexed with the plaint.
3. The present suit, it is argued, is barred by Section 14(1) (b) of the Specific Relief Act, 1963, since the suit, according to the petitioner, is one for specific performance of a contract of employment of personal nature, in the garb of a declaratory suit. 4. In this context, learned senior counsel relies upon several documents filed with the plaint, including a letter dated August 22, 2018 issued by the opposite party to the moderator, the Synod of the Church of North India (CNI) challenging the decision to superannuate the opposite party.
5. It is submitted that several expressions were used in the said letter by the opposite party which indicate that the opposite party admitted his post to be a service, which, by its very nature, was one for personal service. Examples of such expressions, used in the letter and relied on by the petitioner, are as follows: "Continued Service", "Service Stipulations", "Tenure of Service", "Supersession of my service", "Extension of Service" and "retirement". The letter also spoke of "legal and legitimate right" vested in an employee to remain in service till the "age of superannuation".
6. Learned senior counsel next relies on the letter of appointment issued by the CNI (petitioner) to the opposite party. Even such letter mentioned about the "appointment".... "subject always to the constitution of the said Church" and the post of Bishop was referred to as an "office".
7. Another letter dated February 4, 2016 addressed to the General Secretary of the Synod of the CNI, authored by the opposite party, also mentioned about "extension of service" and "superannuation".
8. The petitioner next places reliance on several clauses of the constitution of the CNI, accepted and adopted at the second ordinary meeting of the Synod held on July 9-13, 1974, subsequently amended several times, and bye-laws, as approved by the 6th Synod of the CNI during 3-9th October, 1986. The constitution contains the service rules governing the employees, including Bishops like the opposite party, as per the petitioner. Learned senior counsel read out in this context Section IV, clause 14(a) of the constitution, which provides that the Synod shall arrange for the election, appointment, transfer, discipline, suspension, termination of services and retirement of Bishops and Assistant Bishops of the CNI.
9. Clause 23 provides that the Synod shall arrange for the salaries of Diocesan Bishops and Assistant Bishops and other employees appointed by the Synod of the CNI, their provident funds, superannuation funds and gratuity scheme and/or any other emoluments or expenses, which go with their respective offices.
10. Section VII, clause 7 of the Constitution provides that the moderator shall grant the Bishop's leave of absence from their Diocese within the terms and Service Rules for Bishops as approved by the Executive Committee.
11. Section VIII provides that the moderator shall be the authority to receive letters of resignation fr
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