Kerala High Court
Biju M. Varghese vs Abraham on 2 March, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
OP(C).No.292 OF 2020
AGAINST THE ORDER DATED 11-12-2019 IN IA.NO.2729/2019 IN OS 1/2018
OF I ADDITIONAL DISTRICT COURT, ERNAKULAM
PETITIONERS:
1 BIJU M. VARGHESE, AGED 46 YEARS, S/O.M.V.VARGHESE,
MANIYATT HOUSE, RAYAMANGALAM, PIN-683545
2 ELDO THARAKAN, AGED 42 YEARS, S/O.KORA THARAKAN,
KALLARACKAL HOUSE, RAYAMANGALAM,
ERNAKULAM DISTRICT, PIN-683545
BY ADVS.
SRI.DINESH R.SHENOY
SRI.EBIN MATHEW
SRI.P.ROHIT PREMANANDAN SHENOY
RESPONDENTS:
1 ABRAHAM, S/O.GEEVARGHESE,
KAVUPURA HOUSE, IRINGOLE KARA,
IRINGOLE POST-683548, PERUMBAVOOR VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT
2 JACOB CHERIAN, S/O.CHERIYAN,
KANJIRAMKUZHIYIL HOUSE, MUDAKKIRAYI KARA,
KURUPPAMPADY POST-683545,
RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK
3 M.G.ITHAPIRI, S/O.CHERIAN,
MANJUMMEKUDIYIL HOUSE,
IRINGOLE KARA, IRRINGOLE POST-683548, PERUMBAVOOR
VILLAGE,
KUNNATHUNADU TALUK
4 ALEX M KURIAKOSE
S/O.KURIAKOSE MALIKUDY HOUSE,
IRINGOLE KARA, IRINGOLE POST-683548, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK
OP(C).No.292 OF 2020
2
5 ST.MARYS ORTHODOX SYRIAN CHURCH,
KURUPPAMPADY,
REP. BY VICAR FR.BEHANAN
COR-EPISCOPA, S/O.VARGHESE,
VARIKALAYIL, NARAKATH HOUSE,
MANNOOR, KEEZHILLAM POST-683541,
AIRAPURAM VILLAGE, KUNNATHUNADU TALUK
6 FR.BEHANAN COR-EPISCOPA,
S/O.VARGHESE, VARIKALAYIL,
NARAKATH HOUSE, MANNOOR,
KEEZHILLAM POST-683541,
AIRAPURAM VILLAGE, KUNNATHUNADU TALUK
7 THOMAS MAR DIONASIUS METROPOLITAN
ALSO KNOWN AS BASELIOUS THOMAS I,
S/O.MATHU,
RESIDING AT PATRIARCHAL CENTRE PUTHENCRUZE,
PUTHENCRUZE KARA,
PUTHENCRUZE VILLAGE,
KUNNATHUNADU TALUK, PIN-682308
8 MATHEWS MAR APHREM,
S/O.SKARIAH, RESIDING AT KOINONIA BISHOP HOUSE,
ALLAPPARA POST-683556,
ALLAPPARA KARA, VENGOLA VILLAGE,
PERUMBAVOOR, KUNNATHUNADU TALUK
9 FR.BABY MANGALATH,
S/O.PAULOSE,
MANGALATH HOUSE, KUTHUKUZHY KARA,
KUTHUKUZHY POST-686691,
KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK
10 K.K.PAULOSE, S/O.KURIAKOSE,
KEERANKUZHI HOUSE, THURUTHY.P.O-683545,
VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK
11 ELDHO MATHAI, S/O.MATHAI,
ARACKAL HOUSE, RAYAMANGALAM POST, PIN-683545,
RAYAMANGALAM VILLAGE, KUNNATHUNNADU TALUK
12 VERY REV. FR.THOMAS PAUL RAMBAN,
ASST.VICAR, ST.MARY'S ORTHODOX SYRIAN CHURCH,
KURUPPAMPADY, S/O.PAULOSE,
MARACHERIL HOUSE,
KUTHUKUZHY POST-686691,
KUTHUKUZHY KARA, KOTHAMANGALAM VILLAGE,
KOTHAMANGALAM TALUK
OP(C).No.292 OF 2020
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13 FR.JITHIN GEORGE, S/O.GEORGE, PARNAYIL HOUSE,
VALAYANCHIRANGARA.P.O., VENGOLA VILLAGE,
KUNNATHUNADU TALUK, PIN-6583556
14 FR.ELDO KURIAKOSE, S/O.KURIAKOSE,
PADINJARAEKUDIYIL HOUSE, NELLAD.P.O.,
MANACHANADU, MAZHUVANNOOR VILLAGE,
KUNNATHUNADU TALUK, PIN-686669
R1-4 BY ADV. SRI.M.G.JEEVAN
R1-4 BY ADV. SHRI.BILAL NIAMATHULLA
R5-6, R12-14 BY ADV. SRI.P.MARTIN JOSE
R5-6, R12-14 BY ADV. SRI.P.PRIJITH
R5-6, R12-14 BY ADV. SRI.THOMAS P.KURUVILLA
R5-6, R12-14 BY ADV. SRI.MANJUNATH MENON
R5-6, R12-14 BY ADV. SMT.HANI P.NAIR
R5-6, R12-14 BY ADV. SRI.AJAY BEN JOSE
R5-6, R12-14 BY ADV. SHRI.HARIKRISHNAN S.
R7-9 BY ADV. SRI.P.J.PHILIP
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2020, THE
COURT ON 02-03-2020 DELIVERED THE FOLLOWING:
OP(C).No.292 OF 2020
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JUDGMENT
The petitioners, aggrieved by the dismissal of IA.No.2729/2019 filed by them in OS.No.1/2018 of the First Additional District Judge, Ernakulam, to get themselves impleaded as additional respondents have preferred this OP(C). The suit was filed by respondents 1 and 2 herein, under Section 92 of the Code of Civil Procedure, in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure, for a declaration that the Church was liable to be administered in accordance with the 1934 Constitution of the Malankara Church and other ancillary reliefs. The defendants appeared and contested the proceedings. The respondents 10 and 11 herein, who were the then trustees of the Church, contended that the suit was not maintainable. While so, the petitioners herein claiming that they are the present trustees of the Church, filed IA.No.2729/2019 in the above suit to get themselves impleaded as additional OP(C).No.292 OF 2020 5 defendants. Plaintiffs filed objections, opposing the application. Court below, by the impugned order dismissed the application, which is challenged in this OP(C).
2. The contention of the petitioners herein is that the Church is a congregational Church of believers owing allegiance to the Patriarch of Antiocha trust in which the parishioners of the Church are the prime beneficiaries, along with others, who have faith in the Jacobite Syrian Church and its supreme head, the Patriarch of Antioch. According to the petitioners, the court below, in spite of noting that the suit was one under Section 92 of the Code of Civil Procedure and one instituted in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure, dismissed the application, which was illegal. It was contended that their presence was absolutely essential for the proper adjudication of the suit.
3. In the affidavit filed in support of the application for impleadment, the claim set up by the petitioners was that, they being the elected trustees of the Church, were liable to be in the party array. They were the only persons competent to represent the Church as its elected trustees. Hence, their OP(C).No.292 OF 2020 6 presence in the party array was highly necessary.
4. Even though, the petitioners have set up a case regarding the congregational status in the Original Petition, no such contention was set up before the court below. There was no possibility of such a contention being set up in the light of the specific finding of the court below in the impugned order that the plaintiffs had produced the certified copy of the plaint in OS.No.4/1979 which culminated in the judgment of Apex Court in PMA Metropolitan case, and in the list of 1064 Churches attached thereto, the present Church was included. The trial court held that when the Church was established, then there was no factional disputes in the Malankara Sabha. The court below also noted that the defendants in the present suit included the present Catholicos of the Patriarch faction, who was fully competent to raise all possible contentions in the matter. Court below also noted that the suit was one in a representative capacity and an advertisement inviting all the interested persons to join was made under Order 1 Rule 8 (2) of the Code of Civil Procedure.
5. Though the learned counsel for the petitioners OP(C).No.292 OF 2020 7 relied on the decisions in Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and Others (2013) 5 SCC 397 and Umadbhai Chaturbhai Patel and Others Vs. Goswamini Shrimati Ratnaprabha AIR 1983 Kerala 238 to support their contention that the claim of the suit being one under Section 92 of the Code of Civil Procedure, the petitioners were liable to be impleaded as parties. In Thomson Press's case (supra), the Supreme Court had held that Order 22 Rule 10 was an enabling provision and independent of Order 1 Rule 10, court could add, transferee pendente lite as party-defendant, even if application for impleadment was made only under Order 1 Rule 10. In Umadbhai's case (supra) it was held by the Division Bench of this court that a suit filed under Order 21 Rule 63 against trust properties, by impleading only one of the trustee as a party, suit would not be maintainable in the absence of other trustees.
6. The court below, correctly held that the test to find whether a person should be added as a party depended on the question whether his presence was necessary for an OP(C).No.292 OF 2020 8 effective and complete adjudication of the dispute in the case. It held that the presence of the petitioners, whatever be the status they claim, was not necessary for the adjudication of the dispute.
7. It is seen that the previous trustees were in the party array. The Church was represented by the Vicar. The Metropolitan of the petitioners faction was in the party array. Respondents 7 to 9 were the supporting respondents of the petitioners herein. In the affidavit filed by the petitioners along with the impleading petition, there is absolutely nothing to indicate that the parties already on record are not sufficient for the proper adjudication of the case, or that they have a distinct and separate claim from the existing parties to the suit and that their presence was absolutely essential for the determination of the issues involved in the suit. In other words, the application filed by them was absolutely bereft of any pleadings to substantiate that their presence was essential for an effective adjudication of all the issues in the suit. The court below on facts have also held that the persons already on record were sufficient for the proper OP(C).No.292 OF 2020 9 adjudication of issues. In this perspective, I find no illegality or jurisdictional error in the order passed by the court below. No interference is called for in the above order, in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, OP(C) fails and is dismissed. .
sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy// PS to Judge
OP(C).No.292 OF 2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE PLAINT IN
O.S.NO.1/2016, ADDITIONAL DISTRICT
COURT, NORTH PARUR
EXHIBIT P2 TRUE PHOTOCOPY OF WRITTEN STATEMENT
FILED BY DEFENDANTS 6 AND 7 IN O.S.
NO.1/2018, ADDITIONAL DISTRICT COURT, ERNAKULAM EXHIBIT P3 TRUE PHOTOCOPY OF IA NO.2729/2018 IN O.S.NO.1/2018, ADDITIONAL DISTRICT COURT, ERNAKULAM EXHIBIT P4 TRUE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 3.12.2019 FILED BY RESPONDENTS 1 TO 4 IN I A.NO.2729/2019 IN O.S NO.1/2018, ADDITIONAL DISTRICT COURT, ERNAKULAM EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 11.12.2019 IN I.A.NO.2729/2019 IN O.S. NO.1/2018, IST ADDITIONAL DISTRICT JUDGE, ERNAKULAM RESPONDENT'S/S EXHIBITS NIL