Kerala High Court
Eldhos M.Baby vs Fr.George Pattatt on 12 October, 2015
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938
OP(C).No. 399 of 2017 (O)
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I.A.NO.254/2017 IN O.S.NO.12/2010 OF 1ST ADDL.DISTRICT COURT, ERNAKULAM
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PETITIONER(S)/(RESPONDENTS 23 TO 25):
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1. ELDHOS M.BABY, S/O.BABY,
MENOTHUMALIL, IRINGOLE P.O,
PERUMBAVOOR.
2. E.G. GEORGE,
S/O.GEEVARGHESE, EDAKUDY, METHALA.
3. TOMY JOSEPH,
S/O.OUSEPH, MECKAMALIL,
THALAKUNCHA, VAIKKARA, PERUMBAVOOR.
BY SRI.N.SUKUMARAN,SENIOR ADVOCATE
ADV. SRI.S.SHYAM
RESPONDENT(S)/PETITIONERS, RESPONDENTS 1 TO 22, 26 AND 27:
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1. FR.GEORGE PATTATT,
S/O.LATE PAULOSE PATTAT,
VICAR, ST.MARY'S CHURCH,
ODAKKALY, ASAMANNOOR VILLAGE,
KUNNATHUNAD TALUK, ERNAKULAM DISTRICT,
PIN -683 549
2. FR. THOMAS PAUL RAMBAN,
S/O. LATE PAULOSE MARACHERIAL,
ASST. VICAR. ST. MARY'S CHURCH,
ODAKKALY, ASAMANNOOR VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN -683 549
3. JOSHY ABRAHAM, S/O.OUSEPH ABRAHAM,
MEEKKAMALIL HOUSE, VAIKKARA P.O, ASAMANNUR,
KUNNATHUNADU TALUK-683 549
4. ALBY M. PAUL,
S/O.POULOSE, MONOTHMALIL HOUSE,
ASAMANNOOR P.O, KUNNATHUNADU TALUK -683 549
2/-
-2-
OP(C).NO.399/2017
5. FR. VARGHESE,
S/O.BABY, THEKKAKAM HOUSE,
NEAR KSRTC BUS STAND, PERUMBAVOOR -683 549
6. BIJU VARGHESE,
S/O.K.GEEVARGHESE, KANJIRATHUMKUDIYIL HOUSE,
ASAMANNOOR, PERUMBAVOOR- 683 549
7. BENNY PAUL,
S/O.M.M.PAULOSE, MUKULATH HOUSE,
ODAKKALI, PERUMBAVOOR -683 549
8. BIJU ABRAHAM,
S/O.T.P.AVIRA, THEKKUMPURATH HOUSE,
METHALA, PERUMBAVOOR -680 669
9. K.P.BABY,
S/O.VARKEY PAULOSE, KADUMBELIL HOUSE,
METHALA, PERUMBAVOOR -680 669
10. P.M.CHACKO,
S/O.AVIRA MATHEW, POMAKKAL HOUSE,
PUNNAYAM, ODAKKALI -683 549
11. SMT. SALI VARGHESE,
W/O.K.P.VARGHESE, KANJIRATHUMKUDIYIL,
PANICHAYAM, ODAKKALI -683 549
12. ROY.M.V.,
S/O.VARGHESE, MECKAMALIL HOUSE,
METHALA P.O, KURUPPAMPADY,
ERNAKULAM DISTRICT- 680 669
13. BIJU PAUL,
S/O.POULOSE, MEKKAMALIL HOUSE,
THALAPUNCHA KARA, ASAMANNOR P.O, PIN -683 549
14. REV. FR. THARIAN, KEECHERIL HOUSE,
AIMURI P.O, KURUPPAMPADY, ERNAKULAM DISTRICT, (DIED).
15. M.T VARGHESE,
MEKKAMMALIL HOUSE, METHALA P.O,
KURUPPAMPADY, ERNAKULAM DISTRICT -680 669
16. M.K.ELIAS,
MEKKAMALIL HOUSE, ASAMANNOR P.O,
KURUPPAMPADY ERNAKULAM (DIED) -683 549
17. P.C.PAULOSE,
PARUVUNGAL HOUSE, METHALA P.O,
KURUPPAMPADY ERNAKULAM (DIED) -683 569
3/-
-3-
OP(C).NO.399/2017
18. FR. A.P. JACOB,
ATHIRAMPUZHA HOUSE, KILLIVALIL,
KOMBANAD P.O, VENGOOR -683 546
19. PAULOSE ULAHANNAN, S/O.ULAHANNAN,
KANJIRAMTHUMKUDY HOUSE,
ASAMANNOOR P.O, ASAMANNOR KARA,
PERUMBAVOOR -683 546
20. BASSELIOS THOMAS I,
CATHOLICOS AND METROPOLITAN TRUSTEE,
JACOBITE SYRIAN CHRISTIAN CHURCH,
PATRIARCHAL CENTRE, PUTHENCRUZ,
ERNAKULAM -682 308
21. POULOSE MAR PAKKOMIOSE METROPOLITAN,
MALANKARA ORTHODOXC CHURCH,
THRIKKUNATH SEMINARY, ALUVA (DIED).
22. ABRAHAM MAR SEVERIOUS METROPOLITAN,
MALANKARA ORTHODOX CHURCH,
S/O.A.M. CHACKO, BETHSEDA, VENGOLA -683 556
23. P.G. BABY, S/O.GEEVARGHESE, PARATHUVAYALIL HOUSE,
EKKUNNAM, ODAKKALI, ERNAKULAM DISTRICT -683 549
24. P.I.VALSALAN,
S/O.ITTIYERA, PANIYELIL HOUSE,
METHALA, PERUMBAVOOR, ERNAKULAM DISTRICT -680 669
25. P.V. PAULOSE,
S/O.VARGHESE, PARUTHUVAYIL,
ODAKKALY, ASAMANNOR P.O- 683 549
26. REJI PAUL,
S/O.PAULOSE, MECKAMALIL, METHALA,
METHALA POST- 680 669
R2 BY SRI.S.SREEKUMAR,SENIOR ADVOCATE
ADVS. SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-02-2017, ALONG WITH OPC.NO. 435 OF 2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C).No. 399 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NO. 12/2010 ON THE FILE OF THE
1ST ADDITIONAL DISTRICT COURT, ERNAKULAM
EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED AS. I.A.NO. 254/2017 IN OS.NO.
12/2010 ON THE FILES OF THE 1ST ADDL. DISTRICT COURT,
ERNAKULAM
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS
1 TO 5 AND 7 TO 9 IN EXT P2
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 17
AND 18 IN EXT P2
EXHIBIT P5 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS 23
TO 25 IN EXT P2
EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT
OF KERALA IN AS.NO. 117/1998 DATED 12.10.2015
EXHIBIT P7 TRUE COPY OF THE PETITION FILED AS IA.NO. 117/2016 IN EXT P1
CASE DT. 09.01.2016
EXHIBIT P8 TRUE COPY OF THE MEMO FILED IN EXT P7 PETITION DATED
06.06.2016
EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF
KERALA IN WPC.NO. 5035/2016 DATED 17.03.2016
EXHIBIT P10 TRUE COPY OF THE APPLICATION FILED AS IA.NO. 189/2016 IN EXT P1
CASE
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 25.01.2017 IN IA.NO. 254/2017 IN
EXT P1 CASE
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
sts
A. MUHAMED MUSTAQUE, J.
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O.P(C). Nos.399 & 435 of 2017
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Dated this the 10th day of February, 2017
JUDGMENT
In these original petitions, an order passed in O.S. No.12 of 2010 on the file of the First Additional District Court, Ernakulam is questioned. The dispute is revolved around management and administration of St.Mary's Jacobite Syrian Church, Odakkaly. There is a dispute between the Orthodox and Jacobite factions in the case of administration. Parties are referred to by the name of faction, vis-a-vis Orthodox and Jacobites. The Orthodox faction filed a petition in O.S. No.12 of 2010 as I.A. No.254 of 2017 to hold out certain ceremonies in connection with the `Kallitta Perunnal'. The above suit was filed by Patriarch faction. The said petition was allowed, permitting the Orthodox faction to conduct `Kallitta Perunnal' from 3pm on 15.02.2017 to 3pm on 16.02.2017. They were also permitted to conduct certain other O.P(C). Nos.399 & 435 of 2017 2 ceremonies as referred in the order.
2. These original petitions are filed by the plaintiff and other defendants supporting the plaintiff. According to them, the decree in O.S. No.40 of 1977, filed by the Orthodox faction, had already been dismissed by this Court in A.S. No.117 of 1998, as per Ext.P6 judgment dated 12.10.2015, therefore, they have no right to hold any ceremonies or conduct the rituals. It is also pointed out that, the police protection application filed by them before this Court also had been dismissed. It is further pointed that the plaintiff in O.S. 12 of 2010 filed an application to withdraw the suit and the Court below, instead of allowing the plaintiff to withdraw the suit, permitted the defendants to hold such ceremonies.
3. History of the litigation would show that thought there are suits between the parties and none of them were able to establish any right over the Church. In such circumstances, it may be inappropriate for this Court to enter into any finding regarding right relating to Church at this stage. However, the learned counsel for the plaintiff would submit that they have filed O.P(C). Nos.399 & 435 of 2017 3 an application for withdrawal of the suit on 14.01.2017 and the Court ought to have allowed such application. The learned counsel further submits that, the impugned order was passed only on 25.01.2017. Therefore, there is no jurisdictional error by the Court below. It is also to be noted that a leave was obtained by filing the suit in terms of Section 92CPC. The Court has to consider whether the suit can be permitted to be withdrawn or not. Therefore, this Court is of the view that this order passed, considering the exigency and urgency involved and there is no jurisdictional error committed by the Court below. In regard to permission granted, this Court is of the view that there is no infirmity with the order. It is true that the Orthodox faction was granted such right to hold `Kallitta Perunnal' when appeal was pending, taking note of the decree in their favour. In fact, A.S. No.117 of 1998 was allowed on the premise that the suit was not maintainable for want of sanction under Section 92 CPC. In such circumstances, this Court is of the view that the Court below was justified in allowing the Orthodox faction to hold out ceremonies and other rituals as permitted by the Court below. But at this O.P(C). Nos.399 & 435 of 2017 4 juncture it was pointed out by the learned Senior Counsel appearing for the plaintiff that the festival proposed by them will be over only on 15.02/2017 by 2.30pm and if the Orthodox faction is permitted to hold such ceremonies on the same day, it may create law and order situation.
In such circumstances, I am of the view that the Orthodox faction shall not be permitted to hold on any ceremony on 15.02.2017. The Orthodox faction is therefore permitted to hold such function as permitted by the Court below from 10am on 16.02.2017 to 5pm on 17.02.2017. The Court below shall consider the application filed by the plaintiff for the withdrawal untrammelled by any observation.
The above original petitions are disposed of.
A. MUHAMED MUSTAQUE, JUDGE.
sp/14/02/17