Karnataka High Court
Diocese Of Mysore vs Rev. Deepak Saraswathi Nirmale on 4 March, 1987
Equivalent citations: ILR1987KAR1161
ORDER Kulkarni, J.
1. This is a defendant's revision against the order dated 8th August 1986 passed by the Principal I Munsiff in O.S. 511 of 1986 holding that the Court has got jurisdiction to try the Suit.
2. The facts in brief leading to the institution of the Suit are :
The plaintiff is a Catholic Christian Priest, now incharge of Nirmala Mathe Parish Church, Kutta and Ponnampet in South Kodagu which comes within the limits of Mysore Diocese. The plaintiff was formerly attached to Bangalore Diocese. He opted to serve Mysore Diocese. On 6-12-1984 the Bishop of Mysore appointed the plaintiff as the Priest of Ponnampet and Kutta and therefore, he started educational institution and is also carrying on the constructive work there itself. The Bishop of Mysore passed away on 9-5-1985 in the City of Mysore. The post of the Bishop is yet to be filled up by the Pope. Immediately after the death of Bishop of Mysore, the plaintiff informed the Administrator that he would continue as the Priest in Mysore Diocese and that he had no intention to go back to Bangalore Diocese and that he had no authority to incardinate him in his Diocese as per Canon Law No. 267. It is the prerogative of the Bishop alone as per the Canon Law No. 267. As the Bishop of Mysore passed away on 9-5-1985 there was none to incardinate the plaintiff to the Diocese of Mysore. But he was continued with the Diocese of Mysore from the year 1984. The late Bishop M Fernandes had appointed the plaintiff to the Diocese of Mysore in the month of February 1983. In the beginning, the plaintiff was appointed as the Chaplain to Brid getine Convent, Mysore, then spiritual Director at St. Mary's Seminary, Mysore and finally also the priest of Nirmala Mathe Church at Kutta in Kodagu District. During this appointment, there was not even an iota of refusal to interrupt the in cardination into Mysore Diocese. The plaintiff was asked to start a High School, at Kutta Parish, and accordingly, he submitted a comprehensive plan for the purpose of starting of a High School. But all of a sudden, the Administrator issued a notice not to start the High School on the ground that permission had not been obtained from the Government and the facilities are not available. Subsequently, the Administrator has posted some other Priest to Kutta School and the Institution is continued to be running which was started by the plaintiff. On 21-6-1986 the Administrator of Mysore Diocese passed an order appointing Rev. Fr. Charles Noronha as the Priest in charge of the Church of Nirmala Mathe, Kutta and further directed him to take charge from the plaintiff on 21st June 1986 or a day convenient later. It was further ordered that the handing over of charge should be recorded in the Parish Church Register in the prescribed form. It was also ordered that all the Account Books Registers and files along with other documents should be handed over to him. Even though such an order was passed, the Rev. Father Charles Noronha had not taken charge at all till today. The plaintiff has continued to be in charge of the Institution. The defendant has directed the plaintiff to hand over charge to Rev. Fr. Charles Noronha and further directed him to remain in a clergy house till 8th July 1986. The defendant further directed the plaintiff that three years exclalustration period expires on 8th July 1986 and further directed that it could not be extended and the Administrator of the defendant has directed the plaintiff to go back to his society by 8th July 1986, The plaintiff urges that the Administrator has no authority to direct him to go back to his society, namely, Bangalore Society since this right is vested only with the Bishop as per the Canon Law. The defendant has now already posted Rev. Fr. Charles Noronha and has not shown the place of posting to the plaintiff. His intention is to send the plaintiff from the Mysore Diocese and hence a suit had been filed by the plaintiff.
3. The plaintiff is a Catholic Xian and has opted to the Mysore Diocese and has got a right to continue in the Mysore Diocese. His incardination has to be regularised by the Bishop of Mysore and not by the Administrator, who has no authority to do such an act and this power vests only with the Bishop. The plaintiff therefore has got very right to continue in the post at Kutta or any other place in Mysore. The defendant has no authority to send the plaintiff to Bangalore Diocese and hence the suit is filed by the plaintiff claiming a right of office as the priest of Mysore Diocese and that he has already been incardinated as such by the late Bishop of Mysore. The defendant is making attempts to oust the plaintiff outside Mysore Diocese. So claiming the right, the plaintiff has filed a suit for declaration that he is entitled to continue in the diocese of Mysore and the defendant has no authority to direct for exoneration of the plaintiff from the Mysore Diocese.
4. The cause of action for the suit arose on 6-12-84 and subsequently when the plaintiff was taken to Mysore Diocese from Bangalore and to continue to remain in Mysore Diocese and subsequently when the deceased Bishop died and has allowed the plaintiff to continue in the office of the Priest at Kutta and Ponnampet and therefore he has been incardinated as a Priest of Mysore Diocese. Therefore, he filed the suit for declaration that the plaintiff is entitled to continue as the Priest of Mysore Diocese and also for consequential relief of injunction restraining the defendant from ordering the expulsion or the removal of the plaintiff from the Mysore Diocese, etc.
5. The defendant resisted the Suit by raising a contention among others that there was no cause of action for the suit at all and that the Civil Court had no jurisdiction to try the Suit. Accordingly, the Court below took up the question of jurisdiction and held ultimately that the Civil Court had got the jurisdiction. Hence the defendant being aggrieved has come up with this revision.
6. It is undisputed that the plaintiff had been initially incardinated as a Priest in Bangalore Diocese. Now, according to the plaintiff, the Bishop of Mysore appointed him on 6-12-1984 as a Priest of Ponnampet and Kutta and so he started Educational Institutions.
7. That the parties are governed by the Canon Law in all religious matters, is not disputed. Canon law is based on and contains the principles and directions regulating the religious business and Management of Catholic community in religious affairs.
Canon 267 reads as : 1.
"To be validly incardinated in another particular Church, a cleric who is already incardinated must obtain a letter of excardination signed by the diocesan Bishop, and in the same way a, letter of incardination signed by the Diocesan Bishop of the particular Church in which he wishes to be incardinated.
2. Excardination granted in this way does not take effect until incardination is obtained in the other particular Church."
Therefore, Cancel 267 makes it abundantly clear that if a particular Priest is incardinated in Bangalore Diocese and if he wants to be, incardinated in some other Church, he must obtain a letter of excardination signed by the Diocesan Bishop and in the same way a letter of incardination signed by the Diocesan Bishop of the particular Church in which he wishes to be incardinated. Therefore the incardination in a particular Church and excardination from the particular Church should rather happen simultaneously. Incardination and excardination are the branches of the same process. The principle of incardination and excardination has been laid down by Canon 267 only on the basis that there should not be any lapse of time between incardination and excardination Therefore without incardination and excardination, there is no question of one Priest going from one particular Church to another Church. This principle of excardination and incardination is founded on a good sense and for maintaining the discipline among the Priests. The wisdom contained on Canon 267 is that the Priests should not misbehave and should not leave one Diocese and go to another Diocese as and when they like. Therefore, if a Priest who is incardinated in Bangalore Diocese wants to go to Mysore Diocese, he must obtain a letter of excardination from Bangalore Diocese and simultaneously must obtain a letter of incardination from the Bishop of Mysore Diocese. Without the letter of excardination and incardination above referred to there cannot be a valid incardination and excardination. To be entitled to an office of Priest there must be incardination and excardination Without incardination and excardination, one cannot be said to be attached to any office at all. If the excardination is not given, he will be a Priest only on the waiting List. However he cannot thrust himself on a particular Diocese without the letter of excardination and the letter of incardination recognised by Canon 267. 8. Canon 265 reads as :
"Every cleric must be incardinated in a particular church, or in a personal Prelature, or in an institute of consecrated life or a society which has this faculty : accordingly, acephalous or 'Wandering' clergy are in no way to be allowed."
Canon 266 reads as :
1. By the reception of the diaconate a person becomes a cleric, and is incardinated in the particular Church or personal Prelature for whose service he is ordained.
2. A member who is perpetually professed in a religious institute, or who is definitively incorporated into a clerical society of apostolic life, is by the reception of the diaconate incardinated as a cleric in that institute or society unless, in the case of a society, the constitutions determine otherwise."
Canon 268 reads as :
"1. A cleric who has lawfully moved from his own particular Church to another is, by virtue of the law itself, incardinated in that latter Church after five years, if he has declared this intention in writing to both the diocesan Bishop of the host diocese and his own diocesan Bishop, and neither of the two Bishops has indicated opposition in writing within four months of receiving the cleric's written request."
Such a thing has not happened at all in this case.
Canon 269 reads :
"A diocesan Bishop is not to incardinate a cleric unless :
1. the need or the advantage of his particular Church requires it, and the provisions of law concerning the worthy support of the cleric are observed ;.
2. he knows by a lawful document that excardination has been granted and has also obtained from the excardinating Bishop, under secrecy if need be, appropriate testimonials concerning the cleric's life, behaviour and studies ;
3. the cleric declares in writing to the same Bishop that he wishes to enter the service of the new particular Church in accordance with the norms of law"
How excardination could be lawfully granted is laid down by Canon 270.
Canon 270 reads as :
"Excardination can be lawfully granted only for a just reason, such as the advantage of the Church or the good of the cleric. It may not, however, be refused unless grave reasons exist, it is lawful for a cleric who considers himself to be unfairly treated and who has a Bishop to receive him, to have recourse against the decision.
9. In this case, the Administrator of the Mysore Diocese has not granted the incardination to the plaintiff. The question of granting incardination by the Administrator does not arise as contemplated in Canon 272.
10. As already stated above, in order to validly and legally hold the post of a Priest, there should be incardination and excardination as contemplated by the above quoted Canon law. If there is no excardination and incardination as contemplated by the above provisions of the Canon Law, a Priest cannot be said to hold the office of Priest at all. Unless the above provisions are complied with, the Priest of a particular Diocese cannot by himself choose to work in another Diocese. It is not open for the Priest to dispute the prerogative of the hierarchy recognised by the Canon Law to appoint a Priest or to order a Priest to work in a particular Diocese.
11. In para-3 of the plaint, the plaintiff has stated that "he has opted to serve the Mysore Diocese". He has no where stated that he was excardinated by the Bangalore Diocese and that he was incardinated by the Mysore Diocese. His option to serve in Mysore Diocese does not amount to valid incardination and excardination contemplated by the above Canon Law.
12. In para-7 of the plaint, the plaintiff himself has stated as :
"7. Since the Bishop of Mysore passed away on 9-5-1985 there was none to incardinate the plaintiff to the Diocese of Mysore....."
Thus on his own admission, the incardination at Mysore Diocese has not taken place at all as the Bishop of Mysore passed away on 9-5-1985. He wants to contend in para-8 of the plaint that, during this appointment there was not even an iota of refusal to interrupt the incardination into Mysore Diocese. When he has not been incardinated at all the question of interruption does not arise. It may be that he had been asked by the Bishop of Mysore to work in Kutta and Ponnampet. But it does not mean that the Bishop of Mysore had incardinated him to Mysore Diocese.
13. The plaintiff sent a representation by way of an appeal to the Pronuncio to India, and it reads as :
"PARISH PRIEST NIRMALA MATHE CHURCH
KUTTA-571250
South Kodagu District,
To :
PRONUNCIO TO INDIA,
Most Rev. Archbishop Augustine Cachiavillan HIS EMINENCE CARDINAL DS LOURDUSWAMY OF ROME CATHOLIC BISHOPS OF KARNATAKA, CLERGY OF THE DIOCESE OF MYSORE.
My sincere and urgent Appeal to you for my Incardination into the Diocese of Mysore before July 8, 1986 as Rt. REV, MONSIGNOR JOSEPH ROY, Diocesan Administrator, and his, consultors, are not in favour of incardinating me in the Diocese.
I have been unfairly treated by Rev. Father Julian Fernandes S.J. and his Consultors and many Karnataka Jesuits, in leage with the Bethany Sisters of Mangalore. Hence I do not wish to return to the Jesuits as there is every danger to the savation of My Soul.
Kutta Yours Sincerely,
3 June 1986. Sd/-
(Father Deepak)"
This letter written by the plaintiff himself shows that he has not been still incardinated by Mysore Diocese as required by the Code of Canon Law above referred to. If it is so, then it cannot be said that he has been holding legally and validly the post of a Priest at all. Without incardination and excardination, he cannot work as a Priest within the limits of Mysore Diocese. Therefore, the question of seeking a declaration that he is entitled to the office of a Priest within the jurisdiction of Mysore Diocese, does not arise. Therefore, Section 9 of the Code of Civil Procedure does not come to his rescue at all. Section 9 of C.P.C. reads as :
"9. Courts to try all civil suits unless barred :- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (I) A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation (II) For the purpose of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
14. As already indicated above, when he has no right to the Priesthood within the limits of Mysore Diocese his insistence or option to work as a Priest within the area of Mysore Diocese does not confer on him any right to the post or office of Priesthood within the Mysore Diocese. Therefore, the present Suit seeking declaration that he is entitled to the office of Priest within the limits of Mysore Diocese, is not at all maintainable even within the meaning of Section 9 of C.P.C.
15. For every suit, there will have to be a cause of action. In this case, paragraph-14 of the plaint is a long one speaking as to how cause of action arose. The cause of action fora suit under Section 9 CPC would arise only when a person holds the office or the post of a, Priest. It has been shown above that the plaintiff is not holding validly or legally the office of a Priest within the Mysore Diocese. He has admitted in para-7 of the plaint that he has not been incardinated at all by the Bishop of Mysore, who passed away on 9.5.1985. That he has not been incardinated becomes clear from the Appeal made to the Pronuncia of India by him. There is no cause of action at all for the present suit. Therefore, viewed even from this angle, the suit cannot be sustained at all.
16. The other contentions raised by Mr. Sequeira do not need be considered in view of the findings above recorded. In the result, the order passed by the Court below holding that the Civil Court has got jurisdiction, and that the Suit is maintainable, is set aside. The revision is allowed. The Suit is dismissed. There will be no order as to costs.