Kerala High Court
T.John'S Jacobite Syrian Church vs Rev. Fro.John Moolamattom on 17 August, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 269 of 2001()
1. T.JOHN'S JACOBITE SYRIAN CHURCH
... Petitioner
Vs
1. REV. FRO.JOHN MOOLAMATTOM
... Respondent
For Petitioner :SRI.V.R.VENKATAKRISHNAN (SR.)
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :17/08/2011
O R D E R
P.BHAVADASAN, J.
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R.P.No. 269 of 2001
IN
C.M.A.No.3/2001
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Dated this the 17th day of August, 2011
O R D E R
This review petition coming up for decision after a decade of its filing seeks, to have the order in CMA 3/2001 dated 18.02.2001 reviewed on the ground that there are errors apparent on the face of the record.
2. The brief facts necessary for consideration of this review petition are as follows.
3. CMA 3/2001 was an appeal filed by the plaintiff in O.S.35/2000 before the district court, Ernakulam against an order in an IA 2119/2000 in the said suit. The suit was one for an injunction seeking to restrain the defendants 2 to 9 from interfering with the plaintiff's right to discharge the duties of parish priest of the first defendant church.
4. According to the plaintiff he was appointed by the Metropolitan of Kandanadu Diocese and was functioning as the Asst. Vicar of the first defendant church. According to the plaintiff the said church is a Parish church of :2: R.P.No. 269 of 20011 Kandanadu Diocese. It was alleged that the administration of the church was under the provisions of 1934 constitution as declared by the Apex Court in the decision reported in P.M.A. Metropolitan V. Moran Mar Marthoma {AIR 1995 SC 2001}.
5. There were two Metroplitan for the Kandanadu Diocese.
6. One belongs to the Patriarch group and other to the Catholic group. After the decision reported in P.M.A. Metropolitan V. Moran Mar Marthoma [AIR 1995 SC 2001], Mar Athanacious declared allegiance to the 1934 constitution and it became unacceptable to the Patriarch group. In order to have the advantage of the status quo order declared by the apex court in P.M.A. Metropolitan V. Moran Mar Marthoma {AIR 1996 SC 3121} certain conditions had to be satisfied. The Patriarch group was unable to comply with the condition they were left without a metropolitan. Though an attempt was made to install a :3: R.P.No. 269 of 20011 Metropolitan who had also attempted to take over the administration of the Patriarch group of the church in question, the said attempt failed. That resulted in open war between the two groups resulting in law and order problem, compelling the intervention of the executive Magistrate. Proceedings under the Criminal Procedure Code were initiated and the church was taken over. The plaintiff in the suit, who is also the petitioner in I.A.2119/2000 was allowed to continue as the Asst. Vicar. Two other persons were kept out of the church. The said understanding was entered into on 20.01.1998. Eversince then the petitioner who was the plaintiff in the suit has been discharging spiritual matters of the church without any interference.
7. The defendants in the suit who were bound by the terms of memorandum of understanding began to create problems in the way which petitioner was functioning as the Vicar. Defendants 2,3,4 and 7 physically obstructed the plaintiff, resulting in unruly and free for situation. The :4: R.P.No. 269 of 20011 plaintiff petitioner was illegally detained but the things calmed for a shortwhile on the intervention of police. Within a shortwhile thereafter again the defendants 2 to 5 began to create trouble and the complaint was referred to the Revenue Divisional Officer. In spite of the directions and orders from the said authority the defendants continued to disturb the functions of the petitioner as the Vicar. That necessitated the suit.
8. Along with the suit the plaintiff filed two Interlocutory Applications namely IA 2118/2000 & IA 2119/2000. IA 2118/2000 for temporary injunction seeking to restrain the respondent from interfering with right of the plaintiff to discharge his duties as a Vicar. IA 2119/2000 was to restrain the respondents from bringing any other priest to the church except petitioner for conducting mass in the church.
9. The respondents filed counter to both the interlocutory applications. They disputed the various :5: R.P.No. 269 of 20011 allegations and also the various claim made by the petitioner. The second respondent claimed to be the trustee of the church and the respondents refuted the allegations made in the complaint as well as in the affidavit in support of the petitions filed for interim reliefs. It is pointed out that One Fr. Mary Das Steaphen who attempted to disobey the transfer orders created law and order problems had filed O.S.6/1998 challenging his transfer order. In the said suit no interim orders were passed. According to them the averment in the affidavit in support of the petitions that there was a memorandum of understanding is not fully correct. According to these respondents that was only a temporary arrangement and was not to last long. That arrangement could not be termed as a binding document for all times and it is also contended that it was subsequently resiled. Various other contentions are also taken, which are not relevant except to say ultimately the respondents say that plaintiff is not entitled :6: R.P.No. 269 of 20011 any interim relief.
10. On a consideration of materials before it , the trial court allowed IA 2118/2000 and granted the interim reliefs to the petitioner. However relief on IA 2119/2000 was dismissed. IA 2119/2000 was dismissed mainly on two grounds namely:-
11. The prayer in the interlocutory Application was beyond the scope of the suit and 2). He cannot insist that competent authority cannot appointment of another priest.
12. Aggrieved by the order in IA 2119/2000, the plaintiff petitioner came up in appeal before this court in CMA 3/2001. CMA 3/2001 was disposed of the judgment dated 16.02.2001. The operative portion of the order in CMA 3/2001 reads as follows:-
As per the decision of the Supreme Court, the church is to be governed by the provisions of the 1934 constitution. As per the 1934 constitution, a vicar is to be appointed by the metropolitan. So, necessarily for this church also, a vicar or assistant vicar can be appointed only by the metropolitan of the dioceses. If such a person is appointed by the metropolitan or the diocese, he can conduct mass, but not otherwise. So, the order of the District Judge will stand clarified to this extent.:7: R.P.No. 269 of 20011
13. The review petition is directed against the said order.
14. The learned counsel for the review petitioners pointed out that the detailed argument notes have been filed and that may be referred to. According to the learned counsel, ground No.6 in the memorandum of review petition is the relevant ground. Reference was made to Paragraph 6 &12 of statements of the facts of the review petition. It was contended on behalf of the review petitioners that by the virtue of the decision in CMA 3/2011, the fate of suit is virtually sealed and nothing remains to be considered in the suit. It is also contended that the prayer in IA 2119/2000 as rightly noticed by the trial court was beyond the scope of the suit. These aspects have not been noticed by this Court while disposing of CMA 3/2001. Accordingly it is contended that that there is error apparent on the face of the record and the judgment is liable to be reviewed.
15. The learned counsel appearing for the respondent :8: R.P.No. 269 of 20011 pointed out that much water has flawn under the bridge since the order in CMA 3/2001. There have been several consequential orders in pursuance to the decision in CMA 3/2001. It is too late to seek a review of the order. The learned counsel also drew the attention of this Court to the fact that even though the review petitioners was filed in 2001, no attempt was made by the review petitioners to have the matter heard and decided immediately. The review petitioner had challenged the order in the CMA 3/2001 in A.F.A 16/2001 before this Court, which was dismissed as not maintainable. It was then pointed out that the review petition was dismissed for default on 26.09.2006 and later was restored.
16. When the order in CMA 3/2001 was violated an O.P was filed for police protection. In the CMP10262/2001 in OP.368/2001, a direction was sought for police protection which was granted. Later the O.P was disposed by judgment dated 27.03.2001. The final judgment pointed out :9: R.P.No. 269 of 20011 that unless the order in CMA3/2001 is varied, it had to be implemented. The matter was carried in writ appeal No. 3897/2001, that was dismissed confirming the order in O.P. Then a review was sought for on the judgment in O.P.368/2001 which was disposed of a judgment dated 01.01.2002. In the writ appeal as well as in the review petition, it was observed that no objection could be taken to the order in OP, since direction given was only for the implementation of order in CMA.3/2001.
17. Learned counsel pointed out that there have been various decisions subsequently in various proceedings and it is too late now to seek a review of the order in CMA 3/2011. The learned counsel also went on to point out that the two points urged now do not survive for consideration in the light of decisions in various other suits and proceedings which have become final. Hence it is paid that review petition may be dismissed.
18. The learned counsel appearing for the respondents :10: R.P.No. 269 of 20011 has been kind enough to compile the various orders passed in pursuance to the order in CMA 3/2001 and the proceedings in a booklet form which gave considerable assistance to this Court.
19. That have been several proceedings in pursuance to the order in CMA. It cannot be disputed by the revision petitioners. There was proceedings for police protection and several other proceedings. In all those proceedings it was observed that unless the order in CMA 3/2001 is varied, it has to be implemented. All these proceedings were initiated by the present review petitioners. Of course the initial order for police protection was by the appellant in CMA.3/2001. One proceedings needs special mention is OP.3497/2005, that was filed by two trusteemembers of the managing committee of the first defendant church in OS35/2000. In the said OP the challenge did not actually related to the functioning of the petitioner in the CMA as a Vicar, but it was with regard to some other proceedings in :11: R.P.No. 269 of 20011 relation to the church. The judgment in the OP refers to various proceedings between the parties and the contentions of the respective faction. The question which has some significance reads as follows:-
In Ext.R1(f) judgment dated 16.02.2001 of this Court in C.M.A.3/2001 to which the present church was also a party, following the 1995 decision of the Supreme Court it was held that the church is governed by the provisions of the 1934 constitution as per which a Vicar is to be appointed by the metropolitan of the diocese and such a Vicar alone is entitled the masses in the church. The present petitioners were respondents 2 and 3 to the above decision of this court. That decision also has become final.
20. Against the judgment in a writ petition, a writ appeal was filed and that was dismissed leaving open the contentions that may be available to the parties in other proceedings. That was followed by a review petition 956/2005 against the judgment in the writ petition 3497/2005. An I.A. 1047/2006 was filed in the said review petition and that was disposed of by an order dated 25.01.2006. The IA was dismissed however with an observation that the observation already made will not forclose resolution of a bonafide dispute which may be arise :12: R.P.No. 269 of 20011 after the election.
21. The stand now taken by the review petitioners regarding the document that binds the parishness was taken note of while disposing of the IA 890/2008 and the order in IA 890/2008 in OP3497/2005 which reads as follows.
But the case of the petitioners herein and others is that the election should be conducted not in accordance with the 1934 Constitution but as per the & produced as Exts.P21(a) and P22(a)
22. However this Court refused to accept the said plea, on the basis of the decision reported in P.M.A. Metropolitan V. Moran Mar Marthoma {AIR 1995 SC 2001}, P.M.A. Metropolitan V. Moran Mar Marthoma {AIR 1996 SC 3121} and P.M.A. Metropolitan V. Moran Mar Marthoma {AIR 1997 SC 1035}.
23. It is based on the above decisions in various proceeding before this court, the learned counsel for the respondent contended that there is nothing to be reviewed and the matter is concluded.
:13: R.P.No. 269 of 20011
24. After hearing both sides and after having perused the records, it is felt that there is a little scope for review.
25. As rightly pointed out by the learned counsel for the respondents, there have been several proceedings in pursuance to the order in CMA 3/2001 and judgment has been given effect to. There have been other parallel proceedings is also in which contentions which are sought to be raised by the defendants in the suit in OS 35/2000 from which CMA 3/2001 arose have considered the issues.
26. As noticed at the outset, 10years have elapsed and it will not be be possible to rewind the clock.
27. The learned counsel appearing for the appellant submits that this court had omitted to note the prayers in I.A. 2119/2000 was far beyond the scope of the suit, which was noticed by the trial court. According to the learned counsel the IA ought to have been dismissed. The learned counsel also contended that this Court was not justified in making observations which would gave finality to the suit :14: R.P.No. 269 of 20011 even without a trial. The operative portion of the CMA 3/2001 which has already been extracted to the learned counsel was quite uncalled for.
28. It is true that there is considerable dispute regarding the constitution which governs the first defendant church. The review petitioners have a case that it is governed by " & " which is produced as Exts.P21(a) and P22(a) in WPC 3497/2005 and not as per 1934 constitution.
29. The suit is yet to go for trial. This Court is given to understand that joint trial has been ordered with another suit. In the other suit a stay has been passed by the Apex Court. The result is that both the suits are pending.
30. The learned counsel for the respondent could not refute the claim of the petitioners that one of the contentions raised by the defendants in the suit is regarding on the constitution that governs the first defendant church. The learned counsel also would not refute the contention :15: R.P.No. 269 of 20011 that the prayer in IA 2119/2000 was far beyond the scope of the suit.
31. But the learned counsel is justified in his submission that whatever that be, it is too late now to review the order in CMA 3/2001 since several steps have been taken thereafter and several proceedings have followed.
32. What at best the review petitioners, can hope for in an observation by this Court that the suit O.S.35/2000 may be disposed of untrammeled by the observations made by this Court while disposing of the CMA. However if there are other concluded proceedings between the parties which prevents the issues being tried in OS35/2000 that is a different matter.
33. Hence this review petition is disposed of with the observation that the suit OS35/2000 may be disposed of in accordance with law untrammeled by the observations made by this Court while disposing of CMA.3/2001 provided :16: R.P.No. 269 of 20011 the issues in the suit are not concluded by other proceedings which prevents the trial court from considering the issues raised in OS 35/2000.
This review petition is disposed of as above. There will be no order as to costs.
P.BHAVADASAN JUDGE kkj