Kerala High Court
Simon To George vs K.K.John on 21 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935
WP(C).No. 20008 of 2010 (O)
----------------------------
AGAINST THE JUDGMENT IN OP 445/2010 of I ADDL.DISTRICT COURT,
ERNAKULAM
PETITIONER(S):
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1. SIMON TO GEORGE,S/O.GEORGE,
KILIYAMANGALAM HOUSE,
MANEED VILLAGE, MUVATTUPUZHA
TALUK, ERNAKULAM DISTRICT.
2. N.P.KURIAKOSE @ VETTIKUZHI JOY,
S/O.PATHROSE, AGED 58 YEARS, RESIDING AT
NADUVILEDATHU PUTHENPURAYIL, EZHAKKARANADU
MANEED VILLAGE, MUVATTUPUZHA TALUK
ERNAKULAM DISTRICT.
BY ADVS.SRI.T.RAMPRASAD UNNI
SRI.K.G.RAJEESH
RESPONDENT(S):
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1. K.K.JOHN,S/O.KURIAKOSE,
KAYYALAPARAMBIL HOUSE, MEMUGHAM,
MANEED VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT-668881.
2. E.M.SABU,AGED 43 YEARS,S/O.MATHAI,
ERKKAMATTATHIL HOUSE, MANEED VILLAGE,
MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT-668881.
3. P.P.GEORGE,S/O.PAILY PALAMKANNAYIL HOUSE
NECHOOR, MANEED VILLAGE,
MUVATTUPUZHA TALUK
ERNAKULAM DISTRICT-668881.
4. BOSE PAULOSE,S/O.PAULOSE,PUNCHILAYIL
HOUSE, KAROOR, MANEED VILLAGE
MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.
5. ST.THOMAS CHURCH,NECHOOR,MANEED
VILLAGE,
MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT
REPRESENTED BY ITS VICAR REV.FR.JOSEPH
MANKIDY-668881.
6. REV.FR.JOSEPH MANKIDY,MANKIDIYIL HOUSE,
PIRAVOM VILLAGE, MANEED VILLAGE,
MUVATTUPUZHA TALUK
ERNAKULAM DISTRICT-668881.
7. REV.FR.P.M.KURIAKOSE,S/O.MATHEW,
MOOLAMATTATHIL HOUSE, MANEED VILLAGE
MUVATTUPUZHA TALUK, ERNAKULAM D
DISTRICT-668881.
8. SOJAN P.ABRAHAM,S/O.ABRAHAM,PUNCHILAYIL
HOUSE, KAROOR, MANEED VILLAGE
MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT-668881.
9. RAJU JOHN,S/O.JOHN,NADUVILEDATHU,
PUTHENPURAYIL HOUSE, (VETTIKUZHIYIL HOUSE)
EZHAKKARANADU, MANEED VILLAGE,
MUVATTUPUZHA TALUK
ERNAKULAM DISTRICT-668881.
10. ULAHANNAN,S/O.MAANI,VADAKKEKUNNUMEL,
NECHOOR, MANEED VILLAGE, MUVATTUPUZHA
TALUK, ERNAKULAM DISTRICT-668881.
R1 & R2 BY ADV. SRI.K.PAUL KURIAKOSE
R3&4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R5 & R6 BY SR. ADV. SRI.S.SREEKUMAR
BY ADVs. SRI.N.SUKUMARAN (SR.) &
ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R7
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-10-2013, ALONG WITH WPC. 23590/2010, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P. (C)NO. 20008 OF 2010
APPENDIX
EXT.P1: TRUE COPY OF THE PETITION O.P.NO. 445/2010 ON
THE FILE OF THE DISTRICT COURT,ERNAKULAM SEEKING
LEAVE TO FILEA SUIT FILED BY RESPONDENTS 1 TO 4
EXT.P2: TRUE COPY OF THE COUNTER AFFIDAVIT IN O.P.
NO. 445 OF 2010 ON THE FILE OF THE DISTRICT COURT,
ERNAKULAM, FILED BY THE PETITIONERS TO EXT.P1
APPLICATION.
EXT.P2 (a): TRUE COPY OF THE COUNTER AFFIDAVIT IN
O.P. NO. 445 OF 2010 ON THE FILE OF THE DISTRICT
COURT, ERNAKULAM FILED BY R3 TO R6 IN O.P.
EXT.P3: TRUE COPYOF THE ORDER DATED 21-6-2010 OF
THE ADDL. DISTRICT JUDGE, ERNAKULAM IN O.P. NO. 445
OF 2010
N.K. BALAKRISHNAN,J.
........................................................................
W.P. (C) No. 20008 of 2010
& W.P. No.23590 of 2010
......................................................................
Dated: 18-10-2013
JUDGMENT
These two petitions are filed by some of the respondents in Ext. P1 petition before the Addl. District Court, Ernakulam. That was a petition filed under Sec. 92 of C.P.C. The suit relates to the administration of St.Thomas Jacobite Syrian Church, Nechur. Ext. P1 is the petition. The main reliefs, (a) to (f) sought for in the suit intended to be filed or which forms part of the petition are as stated hereunder:-
(A) A decree of mandatory injunction removing respondents 3 to 6 and all those persons who claim to be their successors in office and are not elected in accordance with the Malankara Sabha Constitution of 1934 from the posts of Vicar, stewards/trustees and Secretary respectively, of the Ist respondent - Church.
(B) A decree of permanent prohibitory injunction restraining respondents 3 to 6 or their agents, servants, supporters W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:2:- their henchmen and all those persons who claim to be their successors in office and are not elected in accordance with the Malankara Sabha Constitution of 1934 from functioning and discharging the duties as the Vicar, stewards/trustees and Secretary respectively of the Ist respondent-church and from interfering in any manner with the lawful administration of the Ist respondent -
Church and the management of its assets in accordance with the Malankara Sabha Constitution of 1934. (C) A decree of permanent prohibitory injunction restraining respondents 3 to 8, their agents, servants, supporters and their henchmen from causing any obstruction to the petitioners, their supporters who are parishioners of the Ist respondent-Church, the 2nd respondent and his successors-in-office or other functionaries under the Malankara Sabha Constitution of 1934 from conducting and attending to religious sacraments and other functions in the Ist respondent-church, its cemetery, its chapels and its other buildings and properties scheduled in the plaint. (D) A decree of permanent prohibitory injunction restraining respondents 3 to 8, their agents, servants, supporters and their henchmen from inducting or allowing entry into the Ist respondent-church for any purpose whatsoever, of any priest, high priest, Bishop or Metropolitan who is not recognized and accepted as a priest, high priest , Bishop or Metropolitan by the Managing Committee of the Malankara Association of the Malankara Church governed by the Malankara Sabha Constitution of 1934. (E) A decree of mandatory injunction directing the respondents 3 to 6 to handover the keys of the Ist respondent-Church, its chapels and other buildings together with the movable W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:3:- properties and all the records retained by them belonging to the Ist respondent-church including the accounts containing the incomes and expenditure of the Ist respondent-church to the 2nd respondent or his successor- in-office.
(F) A decree of permanent prohibitory injunction restraining the respondents 3 to 6, their agents servants, supporters, henchmen and all those persons who claim to be their successors-in-office and are not elected in accordance with the Malankara Sabha constitution of 1934 from expending the church funds and from effecting any alteration to the buildings and other properties scheduled to the plaint and also from committing any waste therein.
2. The application was opposed by the respondents therein contending that an identical suit is pending before the Addl. District Judge's Court as O.S. 33/2009 in which identical reliefs were prayed for and as such the present suit is barred under Secs. 10 and 12 of the C.P.C. It was further contended that the averments in Ext. P1 do not satisfy the ingredients of Sec. 92 and, therefore, leave under Sec. 92 of C.P.C as sought for should not have been granted. It was also contended that an identical suit was W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:4:- filed earlier in respect of the very same Church. That suit was dismissed by the District Court as there was no application for grant of leave as required under Sec. 92 of C.P.C. The plaintiffs therein moved this Court. The suit was dismissed ultimately . The judgment was reported in 2009 (4) KHC 473. That matter is now pending before the Hon'ble Supreme Court.
3. The contentions raised by the respondents in Ext.P1 were rejected by the learned District Judge. Ext. P3 is the impugned order.
4. The learned Sr. Counsel appearing for the petitioners in these Writ Petitions would submit that in the S.L.P. filed by the petitioners in Ext. P1 contended before the Hon'ble Supreme Court (as can be seen from question of law (d) raised therein) as:
"Whether the institution concerned is a public trust and whether Sec. 92 of C.P.C. will be attracted in the suit filed by the petitioner ?"W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:5:-
5. It is argued that since the very same petitioners in Ext. P1 disputed that the Church mentioned above is not a Public Trust and also questioned the correctness of the decision rendered by this Court contending that Sec. 92 of C.P.C. is not attracted, the respondents herein (the petitioners in Ext. P1) are estopped from contending otherwise. It is further submitted that having filed the Special Leave Petition before the Hon'ble Supreme Court in respect of the very same Church raising a ground as quoted above the new suit accompanied by Ext.P1 petition filed under Sec. 92 cannot be entertained at all. In any event, the respondents herein cannot take a different stand than what was stated in the SLP filed them, it is further argued.
6. The learned Senior Counsel appearing for the respondents in these petitions would submit that the petitioners in Ext. P1 have realised the fact that the W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:6:- aforesaid Church is a Public Religious and Charitable Church and that they are governed by the 1934 Constitution. Hence, it is argued that since the reliefs sought for in the suit would come under more than one of the Sub Clauses of Section 92(1) the suit is perfectly maintainable. It is further submitted that the petitioners herein who had contended in the earlier suit that the suit is bad for non-compliance of Sec. 92 C.P.C. are estopped from contending that the suit now laid seeking leave of the Court under Sec. 92 is unsustainable. A party should not be allowed to approbate and reprobate, it is further argued.
7. It is submitted by the learned Sr. counsel appearing for the respondents herein that the operation of the judgment rendered by this Court ( cited supra) has not been stayed by the Hon'ble Supreme Court. Not only that it is the respondents herein who filed the SLP before the Supreme Court and since they are convinced of the W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:7:- fact that the aforesaid Church is a public religious Trust, governed by 1934 constitution and since the reliefs sought for in this suit come under Sec. 92 (1) of C.P.C., the respondents in Ext.P1 who are the petitioners herein cannot question the same since they cannot take a different stand than what was taken earlier. The petitioners who had contended in the earlier suit that the suit is not maintainable for noncompliance of Sec. 92 C.P.C. cannot now contend that Ext. P3 order is unsustainable.
8. Since Ext.P1 petition itself contains all the details which would invite the invocation of Section 92 (1) of C.P.C, the contention that there are no specific allegations regarding the ingredients which are to be satisfied under Sec. 92 C.P.C. cannot be sustained. More over, the plaint was also filed along with the petition. There can be no dispute that the plaint which was filed along with the petition can also be looked into for grant of leave. The W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:8:- decision in St. Peters and St.Paul's Syrian Orthodox church v. K.S. Varghese and Others - 2010 (3) KHC 313 has been relied upon in this connection.
9. In paragraph 4 of the plaint it was stated that the administration and management of the first defendant church and its properties that are scheduled in the plaint are to be carried on as per the provisions of the Malankara Sabha Constitution of 1934. It was also stated that as per Judgment dated 8-09-1998 in O.S. 32 of 1977 it was declared that the first defendant Church has to be administered as per the provisions of the '1934 Constitution' and as per the directions of the Catholicose and the Metropolitans and that the Catholicose cum Malankara Metropolitan is the head of the first defendant Church subject to a nominal spiritual supervision of the Patriarch of Antioch.
10. It was also stated that the disputes between W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:9:- erstwhile factions in the Malankara Church was decided by the Hon'ble Supreme Court in P.M.A. Metropolitan's Case - AIR 1995 SC 2001 upholding the validity of '1934 Constitution'. It is stated in paragraph 5 of the plaint that the Hon'ble Supreme Court has held in P.M.A. Metropolitan's Case that the '1934 Constitution' shall govern the administration and management of all the 1064 Churches and that the defendant Church is the 672nd Church among the 1064 churches mentioned by the Supreme Court.
11. In paragraph 7 of Ext. P1 petition it was stated that respondents 3,4, and 5 shown therein are persons who claim to be Vicar and Trustees respectively of the first respondent Church and the 6th respondent claims to be the Secretary of the Parish Assembly of the first respondent Church. It was specifically contended that respondents 4,5 and 6 are not persons who have ben elected as trustees and W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:10:- Secretary of Parish Assembly of the first respondent church in accordance with the Malankara Sabha constitution of 1934 and that respondents 3 to 6 are administering the assets and properties of the church according to their whims and fancies. It is also contended that 3rd respondent was not authorised and empowered to convene the Parish Assembly meeting of the first respondent Church but meeting of the partisans are convened by the 3rd respondent without any authority.
12. Respondents 3 to 6 are in the position of trustees and so the prayer (a) shown in Ext. P1 petition/plaint for a mandatory injunction seeking removal of respondents 3 to 6 and all those persons, who claim to be their successors-in
- office would come under clause (a) of Section 92 (1). Since the suit according to the plaintiffs is for obtaining a decree directing a trustee who has been removed or by a person who has ceased to be trustee to deliver possession of W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:11:- a trust property in his possession to the person entitled to the possession of such property Section 92 (1) (cc) of C.P.C. is also attracted. The reliefs sought for and the plaint averments would undoubtedly attract Secs. 92 (1)
(a) and 92 (1) (cc) of C.P.C. Section 92 (1) (d) is also attracted, it is contended.
13. The fact that the defendant Church is a Public Religious Charitable Trust is not disputed. The reliefs sought for would certainly attract the three sub clauses referred to earlier. Therefore, the leave sought under Sec. 92 (1) of C.P.C. was granted by the lower Court.
14. The contention that since in the Special Leave Petition it was contended by the appellants therein who are some of the plaintiffs in the suit as to whether the institution concerned is a public trust and whether Sec. 92 C.P.C. is attracted cannot come to the rescue of the petitioners herein to contend that Ext. P1 petition is W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:12:- unsustainable and consequently Ext.P3 order also cannot be sustained.
15. There can be no doubt that at the stage of considering the application under Sec. 92 C.P.C. only the allegations in the plaint and the petitions are to be looked into. In the first instance, it has to be seen whether the suit falls within Sec. 92 of the CPC. As already pointed out, the ingredients to attract Sec. 92 C.P.C. have been well stated in the petition and the plaint. It is the admitted fact that the defendant church is a Public Religions Charitable Trust governed by '1934 Constitution'. The averments in the petition do prima facie attract Sections 92(1)(a), 92 (1) (cc) and 92 (d) of C.P.C.
16. The other contention that has been vehemently advanced by the learned Sr. counsel for the petitioners herein is that the present suit is barred under Section 10 of C.P.C. That argument also is devoid of any merit, the W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:13:- learned counsel for the respondents submits. What is barred under Sec. 10 C.P.C. is only the trial of the suit. Section 10 says that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The object of the provision is to save duplication of evidence and possibility of conflicting judgments. Section 10 merely enacts a rule of procedure. The stage of application of Sec. 10 has not arisen so far. After leave is granted the suit has to be numbered. The defendants therein have to file the written statement and the issues have to be framed. Only after taking steps the suit can be listed for trial. It is too early for the petitioners herein to contend that even the petition under Sec. 92 C.P.C. should be kept in abeyance till the final disposal of another identical suit in respect of the same Church. W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:14:-
17. On going through Ext. P1 petition and the plaint, there can be no doubt that the suit is primarily for removal of the Trustees /the persons who, according to the plaintiffs, are administering the Church against 1934 Constitution and so they are to be removed from administering or managing the trust. The plaintiffs also seek a direction for handing over of the properties of the Church. I have already said that the reliefs claimed in the suit would clearly attract the requirement of leave under Section 92 (1) of C.P.C.
18. It was held by the Hon'ble Supreme Court in Vidyodaya Trust v. Mohan Prasad.R. - (2008) 4 SCC 115: referring to a suit under Sec. 92 :
"Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:15:- a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the rights of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Sec. 92".
Here also the plaintiffs seek for a direction of the Court for the Administration of the Church and they also seek removal of certain persons who according to the plaintiff are administering or managing the Church unauthorisedly.
19. The learned Addl. District Judge has also found that Sec. 10 and 12 of C.P.C. would apply only after the suit is numbered. It is inconceivable how Sec. 12 C.P.C. would apply to the facts of this case. Whatever that be, the question of application of Sections 10 and 12 of CPC would arise when the suit is numbered and the suit is posted for trial. The object and purpose of the suit is essentially for W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:16:- vindicating a public right and not for enforcing the individual right of any of the parties to the suit. Hence, the arguments vehemently advanced by the learned Sr. counsel for the petitioners in these two Writ Petitions are found unsustainable.
20. It is also argued by the learned Sr. counsel for the respondents that these two Writ Petitions are not actually maintainable since the remedy of the defendants is to file a Revision Petition under Sec. 115 C.P.C. since, if the leave sought for under Section 92 (1) C.P.C. is rejected then there would be a finality in which case the order is one which has to be challenged by filing Revision under Sec. 115 C.P.C. I find force in the submission so made by the learned Sr. Counsel. Since the counsel appearing for all the parties have argued the matter at length touching up on the merits of Ext. P1 petition and Ext. P3 order , I prefer to dismiss the Writ Petitions on merits and not to dismiss W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:17:- the petitions on the ground of maintainability alone. In the result, both these Writ Petitions are dismissed.
Dated this the 18th day of October, 2013.
Sd/-N.K. BALAKRISHNAN, JUDGE.
/truecopy/ P.S.toJudge W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:18:- or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in having jurisdiction to grant the relief claimed W.P.(C) No. 20008 of 2010 & W.P. No.23590 of 2010 -:19:-