Kerala High Court
Fr.Bobby Varghese vs St.Peters And St.Paul’S Orthodox ... on 23 March, 2023
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
OP(C) NO. 520 OF 2023
IN IA NO.2/222 AND IA NO.3/22 IN OS 349/2022 OF MUNSIFF COURT,
PERUMBAVOOR
PETITIONERS/PETITIONERS/PLAINTIFFS:
1 FR.BOBBY VARGHESE,
AGED 47 YEARS
S/O.VARGHESE SCARIA, KAITHAKUDY HOUSE, MANNAOOR KARA,
IRAPURAM VILLAGE, KUNNATHUNADU TALUK,, PIN - 683541
2 FR.BINOY VARGHESE,
AGED 53 YEARS
S/O.JOSEPH VARGHESE, PARYATH HOUSE, ELAMKULAM KARA,
AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK,
PIN - 682311
3 FR.BIBIN MATHEW,
AGED 29 YEARS
S/O.THOMAS MATHEW, CHARIVUKALAYIL PUTHENVEEDU, PIDAVOOR
KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK,
PIN - 686671
BY ADVS.
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
R.GITHESH
AJAY BEN JOSE
MANJUNATH MENON
SACHIN JACOB AMBAT
ANNA LINDA EDEN
HARIKRISHNAN S.
S.SREEKUMAR (SR.)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ST.PETERS AND ST.PAUL'S ORTHODOX SYRIAN CHURCH
(ST.PETER AND ST.PAUL'S CHURCH (THOPPIL),
KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE,
KUNNATHUNADU TALUK, REPRESENTED BY ITS TRUSTEE,
SRI.JOHN ZACHARIAH, AGED ABOUT 57 YEARS, S/O.JOHN AND
RESIDING AT MALIKUDYVALAYIL HOUSE, PAZHANGANADU KARA,
OP(C) NO. 520 of 2023 2
KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PIN -
683562
2 FR.CHERIAN PAULOSE,
AGED ABOUT 57 YEARS, S/O.PAULOSE, KOOLIYATTU HOUSE,
KADAKKANADU KARA, MAZHUVANNOOR VILLAGE,
KUNNATHUNADU TALUK, PIN - 686669
3 FR.GIJO VARGHESE,
AGED ABOUT 42 YEARS, AND RESIDING AT PAKKUNNEL
HOUSE, VADAVUKODE KARA, VADAVUCODE VILLAGE,
KUNNATHUNADU TALUK, PIN - 682310
4 BENNY M.THOMAS,
AGED ABOUT 59 YEARS, S/O.THOMAS AND RESIDING AT
MAKKAMKUNNEL HOUSE, KIZHAKKAMBALAM KARA,
KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK,
PIN - 683562
5 SAJI PAUL,
AGED ABOUT 52 YEARS, S/O.PAILY AND RESIDING AT
PANDIYAPPILLIL HOUSE, NJARALLOOR KARA,
KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK,
PIN - 683562
BY ADVS.
SAJI VARGHESE
BASIL MATHEW
ASHA BABU(K/385/2008)
AMALENDU A.(K/1980/2020)
NINAN JOHN(K/346/1997)
SANJANA SARA VARGHESE ANNIE(K/000582/2018)
AJAY KRISHNAN S.(K/1630/2020)
ARYA A.R.(K/1666/2018)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 520 of 2023 3
Dated this the 23rd day of March, 2023
JUDGMENT
The original petition is filed to direct the Court of the Munsiff, Perumbavoor, to consider and dispose of I.A No.2/2022 (Ext.P2) and I.A. No.3/2022 (Ext.P3) in O.S. No.349/2022 within a reasonable time period.
2. The petitioners' case is that, along with the suit they have filed Ext.P2 application under Order 1 Rule 8 of the Code of Civil Procedure (in short 'Code') and Ext.P3 application under Order 39 of the Code, for an order of temporary injunction. Although, Ext.P3 application was filed as early as on 6.12.2022, the court below has not passed any orders on the said application. Hence, the original petition.
3. The respondents 2 and 3 have filed a counter affidavit denying the allegations in the original petition. It is their case that the suit itself is not maintainable. The learned Munsiff has raised a preliminary issue regarding the maintainability of the suit. Therefore, there is no OP(C) NO. 520 of 2023 4 meaning in directing the court below to consider and dispose of Exts.P2 and P3 applications expeditiously. Hence, the original petition may be dismissed.
4. Pursuant to the order dated 28.2.2023 passed by this Court, the learned Munsiff by communication dated 2.3.2023 has informed this Court that Exts.P2 and P3 applications have been posted to 7.3.2023 for objection and hearing. The court below requires 15 days time to hear and dispose of the applications.
5. Heard; Sri.Martin Jose, the learned counsel appearing for the petitioners, Sri.Basil Mathew, the learned counsel appearing for the respondents 4 and 5 and Sri. Saji Varghese, the learned counsel appearing for the respondents 2 and 3.
6. Today, when the original petition was taken up for consideration, Sri Martin Jose submitted that the court below has already allowed Ext.P2 application. Therefore, the petitioners are confining the original petition to the expeditious consideration of Ext.P3 application.
7. Sri. Saji Varghese, on the contrary, contended that OP(C) NO. 520 of 2023 5 the disposal of Ext.P3 application shall not stand in the way of the court below deciding the maintainability of the suit. Therefore, even if orders are passed on Ext.P3 application, the court below shall be directed to consider whether the suit is maintainable or not.
8. On an evaluation of the pleadings and materials on record, and taking into consideration the fact that Ext.P3 application was filed as early as on 6.12.2022, and in view of the mandate under Order 39 Rule 3A of the Code, I am of the view that the court below is to be directed to consider and dispose of Ext.P3 application, expeditiously. However, with a rider that the disposal of Ext.P3 application will not stand in the way of the court below deciding the maintainability of the suit.
Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition as follows:-
(i) The Court of the Munsiff, Perumbavoor is directed to consider and dispose of I.A No.3/2022 in O.S No.349/2022, in accordance with law and as expeditiously OP(C) NO. 520 of 2023 6 as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of the judgment.
(ii) The disposal of Ext.P3 application will not stand in the way of the court below deciding the maintainability of the suit.
Sd/-
C.S.DIAS, JUDGE rmm23/3/2023 OP(C) NO. 520 of 2023 7 APPENDIX OF OP(C) 520/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PLAINT IN O.S.NO.349 OF 2022 FILED BY THE PETITIONER BEFORE THE MUNISFF'S COURT, PERUMBAVOOR ON 06-12- 2022 Exhibit P2 TRUE COPY OF I.A.NO.2 OF 2022 IN O.S.NO.349 OF 2022 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR, FOR LEAVE TO INSTITUTE THE SUIT IN A REPRESENTATIVE CAPACITY Exhibit P3 TRUE COPY OF I.A.NO.3 OF 2022 IN O.S.NO.349 OF 2022 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR, FOR TEMPORARY INJUNCTION Exhibit P4 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENT NO.1 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR. Exhibit P5 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENT NOS.2 TO 4 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR.
Exhibit P6 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENT NO.5 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR. Exhibit P7 TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS 1 TO 3 IN I.A.NO.3 OF 2022 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR Exhibit P8 TRUE COPY OF OBJECTION FILED BY THE RESPONDENT NO.4 IN I.A.NO.3 OF 2022 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR OP(C) NO. 520 of 2023 8 Exhibit P9 TRUE COPY OF PROCEEDING SHEET IN I.A.NO.2 OF 2022 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR Exhibit P10 TRUE COPY OF PROCEEDING SHEET IN I.A.NO.3 OF 2022 IN O.S.NO.349 OF 2022 BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR