Kerala High Court
A.A.Kora vs Unknown on 9 December, 2019
Author: Sunil Thomas
Bench: Sunil Thomas
CRP No.47 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941
CRP.No.47 OF 2017
AGAINST THE ORDER IN OS 27/2009 DATED 24-09-2016 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
REVISION PETITIONERS/ADDL. DEFENDANTS NO.3,4 & 6:
1 A.A.KORA,
S/O.AVARACHAN, ELAVUMVEETTIL, KAKKOOR,
ERNAKULAM DISTRICT.
2 P.M.ROY,
S/O.MARKOSE, PUNNANTHADATHIL, THIRUMARADY,
ERNAKULAM DISTRICT.
3 V.I.KURIAKOSE,
S/O.VARKEY, IAIKKARAKUNNEL, KAKKOOR,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENTS/PLAINTIFFS & DEFENDANTS NO.1,2 & ADDL. DEFENDANT 5
1 ST. MARY'S ORTHODOX CHURCH,
ATTIMKUNNU KAKKOOR, KAKKOOR P.O.,
MUVATTUPUZHA TALUK,
REP. BY ITS TRUSTEE, RENJITH KUMAR T.
2 K.S.VARGHESE,
S/O.SEEMAN, KUNNUMMEL HOUSE,
MANNATHOOR POST,
PAMPAKKUDA, MUVATTUPUZHA.
3 RENJITH KUMAR T.,
S/O.LATE ISSAC, THENNITTAMPADY,
KAKKOOR P.O., KOOTHATTUKULAM.
CRP No.47 of 2017
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4 FR.JOHN C.ABRAHAM,
S/O.ABRAHAM, CHOLAKATHIL HOUSE,
SOUTH EZHAKARANADU P.O., PUTHENCRUZ VIA,
ERNAKULAM.
5 FR.VARGHESE.P.VARGHESE,
S/O VARGHESE,VICAR,ST.MARY'S ORTHODOX CHURCH,
ATTIMKUNNU,KAKKOOR P.O, MUVATTUPUZHA TALUK.
6 REV.FR.PHILIP VARGHESE,
S/O VARGHESE,VADAKKEPARAMBIL HOUSE,
KUMARAKOM POST,KOTTAYAM DISTRICT.
7 REV.FR.SLEEBA VATTAVELLIL,
S/O FR.PAULOSE,VATTAVELIL HOUSE,THANNIKKARA,
KOLENCHERRY P.O.ERNAKULAM DISTRICT.
8 N.K.CHERIYAN,
S/O KURIAKOSE,NALIPARAMBIL, KAKKOOR P.O.,
MUVATTUPUZHA TALUK.
R1 BY ADV. SRI.P..MARTIN JOSE (CAVEATOR)
R1 BY ADV. SRI.P.MARTIN JOSE
R1 BY ADV. SRI.P.PRIJITH
R1 BY ADV. SRI.S.SREEKUMAR SR.
R1 BY ADV. SRI.THOMAS P.KURUVILLA
R1 BY ADV. SRI.VINOD KUMAR.C
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-12-
2019, THE COURT ON 09-12-2019 PASSED THE FOLLOWING:
CRP No.47 of 2017
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O R D E R
Dated this the 9th day of December, 2019 The petitioners are the additional defendants 3,4 and 6 in O.S.No.27/2009 of I- Additional District Court, Ernakulam. The suit was filed under Order 1 Rule 8 of CPC, seeking a decree of permanent prohibitory injunction. The 1st respondent/plaintiff claimed to be a constituent Church of the Malanakara Orthodox Church. It was alleged that the defendants interfered in the functioning of the additional 4th and 5th plaintiffs who claimed to be duly appointed as the Vicars by the metropolitan. The prayer sought in the suit was for a decree of permanent prohibitory injunction restraining the defendants, their men, agents or anybody claiming under them from interfering with the right of the plaintiffs to discharge their duties in the 1st plaintiff church, including conducting of Holy Mass. The second prayer was CRP No.47 of 2017 4 to restrain the defendants from tress passing into the 1st plaintiff church. The defendants, inter alia, contended that the suit ought to have been filed under Section 92 of the CPC and since leave was not obtained before the institution of the suit, the suit was bad and liable to be dismissed. This was considered as the first issue by the Court below. It was answered in favour of the plaintiffs by the impugned order. The Court below held that there was no allegation of express or constructive breach of trust and no relief under clause (a) to (h) of Section 92 of the CPC was sought.
2. Assailing the above order, the learned counsel for the revision petitioners contended that the Court below failed to notice that even under the 1934 Constitution which was relied on by the plaintiffs, the Vicar was holding dual capacity as that of a Co-trustee of the properties of the church, as well as discharging CRP No.47 of 2017 5 his religious functions. Assertion any right in relation to his duties as a Vicar takes in, his right as a trustee and necessarily it was immaterial whether the relief was couched in the form of a simple injunction. It was further contended by the learned counsel that Paragraph 7 of the plaint indicated that they were claiming enforcement of the rights of a Co- trustee and by indirectly seeking injunction. The real object of the suit was to ensure the vesting of the property on the trustee. The prayer thereby fell within the scope of clause
(c) of Section 92 of the CPC, it was urged..
3. To substantiate the above contention, the learned counsel for the revision petitioners placed reliance on the Division Bench decision of this Court in St. Peter's Orthodox Syrian Church Vs. Fr. Abraham Mathews [2011(4)KLT 540] as well as the decision of a Single Judge in Fr. John Jacob and Others Vs. Fr.N.I. Paulose and Others [2014 CRP No.47 of 2017 6 (2) KHC 59]. In the Division Bench decision though it dealt with the scope of Section 92 of the CPC, in the suit there was a specific claim for enforcement of right to manage the trust. In Fr. John Jacob's case (Supra), it was held that a suit will not fall outside the scope of Section 92, CPC merely on the ground that the relief has been styled by the plaintiffs in a different manner. Relying on the above decision the learned counsel for the petitioner contended that, it is not the prayer that matters, but the Court will have to go into the pleadings to ascertain whether the prayer has been purposefully made, so as to take it outside the campus of Section 92 of CPC.
4. It seems that, in the plaint there was absolutely no allegation of mismanagement or that there was breach of trust. There was no allegation that there was breach of trust, either express or constructive. It is settled in CRP No.47 of 2017 7 the light of decision reported in K.S.Varghese and Others Vs. St. Peter's and St. Paul's of Syrian Orthodox Church and Others [2017 (3) KLT 261] , that the Parish churches within the hold of Malankara church should be administered by the 1934 Constitution. Evidently, in the light of the above authoritative pronouncement, the church claimed to be a constituent of Malankara church, is to be governed and administered by the 1934 Constitution. There is no relief sought in respect to the administration of the church. Hence the decision of this Court in Fr.John Jacob and Others (Supra) has no application to the facts of the case.
5. The Hon'ble Supreme Court in Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another [AIR 1974 SC 2141] , has considered the scope and ambit of Section 92. It was held that law does not contemplate that each and every suit in relation to a trust property CRP No.47 of 2017 8 will be governed by Section 92 of the CPC. It was held that a suit under Section 92 is a suit of special nature which presupposes the existence of a public trust of a religious or a charitable nature. In the suit involved in that decision, the plaintiffs did not sue to vindicate any right of public but were seeking a declaration of their individual or personal rights of any other persons in whom they were interested. In such cases, the suit would be outside the scope of Section 92, CPC. It was reiterated that, it is not only every suit claiming the reliefs specified in the Section that can be brought under the Section, but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 the Court must be beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the CRP No.47 of 2017 9 purpose for which the suit was brought.
6. The Single Judge of this Court in St.John's Jacobite Syrian Church Vs. Fr.John Moolamattom [2005(1) KLT 307], had occasion to consider the same principle. Relying on the decision in G.Koshy Vs. Chacko Thomas [AIR 1963 Ker (191)], the learned Single Judge held that for Section 92 to apply three conditions enumerated in Section (2) must co-exist; they are (1) there must be an express or constructive trust for public purposes of a charitable or religious nature; (2) there must be an allegation of breach of trust or the direction of the Court should be deemed necessary for the administration of such trust and (3) the suit should have a prayer for anyone of the reliefs mentioned in sub clause (a) to (h) in clause 1 of Section 92.
7. It was explained that the relief mentioned in clause (h) of Section 92(1) has to CRP No.47 of 2017 10 be construed in consonance with the specified heads mentioned in (a) to (h) and not in consonance with the words "in case of any alleged breach" etc.
8. Applying the legal propositions as mentioned above, it is clear that there is absolutely no prayer for declaration of any reliefs contemplated under clause (a) to (h) of Section 92(1), CPC. There is absolutely no allegation of mismanagement or breach of trust, either express or constructive. There is no prayer for proper administration of the church. In the light of above, evidently, the three grounds essential for invoking Section 92, CPC are cumulatively not present in the case at hand.
Having evaluated this, I am satisfied that the conclusion arrived by the Court below that the suit does not fall within the ambit of Section 92 CPC is liable to be confirmed. CRP No.47 of 2017 11 Accordingly, the impugned order on issue No.1 is confirmed. The revision is held to be without any merit and is accordingly dismissed. The Lower Court Records shall be returned forthwith.
The revision petition is dismissed as above.
Sd/-
SUNIL THOMAS JUDGE VPK