Kerala High Court
Rev.Fr. N.K.Yacob vs Rev.Fr.Baby Paul on 27 August, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934
RFA.No. 350 of 2007 ( E )
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OS.35/2004 of IST ADDL.DISTRICT COURT, ERNAKULAM.
APPELLANT(S)/APPELLANTS/DEFENDANTS 1 TO 4:
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1. REV.FR. N.K.YACOB, AGED 59 YEARS,
S/O FR. N.T.KURIAN, NEDUVELILPUTHENPURAYIL HOUSE
CHALISSERY DESOM, CHALISSERY VILLAGE
OTTAPPALAM TALUK, PALAKKAD DISTRICT.
2. REV.FR. THOMAS, AGED 36 YEARS,
S/O VARGHESE, CHEMPOTHUMKUDI HOUSE, PALLIKKARA DESOM
PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK
ERNAKULAM DISTRICT.
3. SHAJI, AGED 36 YEARS, S/O MATHAI,
KARUTHEDATH HOUSE, VAZHAKUMPARA DESOM
PANANCHERY VILLAGE, THRISSUR TALUK
THRISSUR DISTRICT.
4. BIJU, AGED 32 YEARS, S/O VARKEY,
KAROTTUKUNNEL HOUSE, VAZHUKKUMPARA DESOM
PANANCHERY VILLAGE, THRISSUR TALUK
THRISSUR DISTRICT.
BY ADVS.SRI.S.VENKATASUBRAMONIA IYER(SENIOR ADVOCATE)
SRI.M.C.SEN (SENIOR ADVOCATE)
I/B SRI.K.J.KURIACHAN.
RESPONDENT(S)/PLAINTIFF AND DEGFENDANTS 5 AND 6:
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1. REV.FR.BABY PAUL, AGED 41 YEARS,
S/O PUKKUNNEL POULOSE, VICAR, ST. GEORGE JACOBITE
SYRIAN CHURCH, CHUVANNAMANNU, RESIDING AT
PAKKUNNEL HOUSE, KURUMALA DESOM, KURUMALA VILLAGE
KURUMALA P.O., THALAPPILLY TALUK, THRISSUR DISTRICT.
2. THOMAS MAR DIONIYSIUS, AGED 78 YEARS,
S/O MATHEW, NOW H.B.BASELIOUS THOMAS-I
CATHOLICOSE OF THE EAST, RESIDING AT MOUNT
SEENAI ARAMANA, KOTHAMANGALAM, ERNAKULAM DISTRICT.
3. GEEVARGHESE RAMBAN, AGED 54 YEARS,
NOW GEEVARGHESE MAR ATHANASIOUS, ERALIL HOUSE
MUMBRA DESOM, PAIKANAM AMSOM, KORATTY P.O.
THRISSUR DISTRICT.
R1 BY ADVS. SRI.BIJU ABRAHAM
& SRI.B.G.BHASKAR
R2 & R3 BY ADV.SRI.SAJAN VARGHEESE K.
ADV.SRI.LIJU. M.P
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
13-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA.No. 350 of 2007 ( E ) -2-
APPENDIX
PETITIONER'S ANNEXURES :-
ANNEXURE 1 : COPY OF E.P.NO.95/2007 IN O.S.NO.35/2004.
RESPONDENT'S ANNEXURES :-
ANNEXURE 1 : A TRUE COPY OF THE RELEVANT PAGES OF PUBLICATION
OF THE PERIOD JANUARY 15TH TO 14TH FEBRUARY OF
"VISWASA SAMRAKSHAKAN".
ANNEXURE R1 : TRUE COPY OF THE MINUTES OF PARISH ASSEMBLY
DATED 27-08-2006.
ANNEXURE R1(a) : PHOTOGRAPH OF THE RENOVATED CHURCH.
//TRUE COPY//
P.A TO JUDGE
amk
K.VINOD CHANDRAN, J
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R.F.A.No.350 OF 2007
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Dated this the 13th day of December, 2012.
J U D G M E N T
The plaintiff is a Priest, and claiming to be the constitutionally appointed Vicar of the St.George Jacobite Syrian Church, Chuvannamannu sought for a declaration that the plaintiff is entitled to function as Vicar of the plaint church with all the attendant responsibilities; ecclesiastic and temporal, that goes with the office of the Vicar. The plaintiff also sought for a declaration that the defendants are not entitled to enter the church and premises attached thereto or in any way intermeddle with the administration of the plaint church; to be carried on under the 1934 Constitution and also prayed for a consequential injunction restraining the defendants and other supporters from entering into the premises of the church and interfering in any manner with the management of the church by the plaintiff or his successors duly appointed under the said Constitution. The first defendant was the R.F.A.No.350 OF 2007 2 Vicar, who is said to have been appointed by the 6th defendant, Bishop, and is labelled a 'renegade' priest by reason of questioning the authority of the 1934 Constitution. The second defendant is another priest and the defendants 3 and 4 are the trustee and secretary of the plaint church. The 5th defendant is the Catholicos, who has appointed the 6th defendant.
2. The defendants stoutly resisted the prayer that the plaintiff is constitutionally appointed as the Vicar of the St.George Jacobite Syrian Church, Chuvannamannu. The plaint church, according to the defendant was not a part of Malankara Orthodox Syrian Church and did not come within the wings of the Malankara Syrian Association and hence the 1934 Constitution had absolutely no significance or relevance as far as the administration of the plaint church was concerned. The defendants pointedly referred to the age old dispute between the Orthodox and Patriarch factions existing in the Syrian Christian Community. As far back as in 1985, it was claimed that with respect to the plaint church, there was a cease-fire, and partition deed (B1) was entered into by the R.F.A.No.350 OF 2007 3 two factions. The Patriarch faction, to which the defendants belong, retained the church. The Orthodox faction was paid compensation, with which they walked out and erected and consecrated another church in Chuvannamannu itself quite near to the plaint church. However, the faction fights simmering in the community oftener than ever erupting in various places; led to a long line of litigations. In the meanwhile the Orthodox faction, to which the plaintiff now belongs, framed the 1934 Constitution. The plaintiff and the Bishop under whom he swears, originally were alligned to the Patriarch faction and after the framing of the 1934 Constitution, shifted allegiance to the Orthodox faction.
3. About 37 churches coming under the 5th respondent Bishop of the Thrissur Diocese faced similar problems for reason of the crossing over. The Orthodox faction created a Thrissur Diocese under the Bishop, who claims to have appointed the plaintiff. The members of the said diocese have been attempting to take hold of the churches to which they originally belonged. It is pointed out, as a very curious situation, that while the plaintiff R.F.A.No.350 OF 2007 4 claims the plaint church as coming within the Thrissur Diocese of the Malankara Orthodox Syrian Church and Association, the church belonging to the Orthodox faction, which is situated quite nearby and within Chuvannamannu itself, belongs to the Ernakulam Diocese of the very same Church and Association. In 2002, it was claimed that the parishioners of the plaint church along with others created a separate church and association called Jacobite Syrian Christian Church and Jacobite Syrian Christian Association. They have formed a constitution of their own and they do not recognize the Catholicos of the Orthodox faction, he having not been consecrated by the Patriarch of Antioch
4. The plaintiff on the other hand swears by the Catholicos elected by the Malankara Association and refuses to acknowledge the Patriarch of Antioch, the later having been consecrated in a function wherein their Catholicos was not invited. The plaintiff and his group swears allegiance to the said Catholicos, who is stated to be occupying the throne of St.Thomas and disowns the present Patriarch of Antioch, who according to them is not R.F.A.No.350 OF 2007 5 properly installed. The defendants' group swears by the Patriarch of Antioch; who occupies the throne of St.Peter, and considers the office of Catholicos subordinate to him.
5. After trial, the suit was partly decreed. The declaration sought for against the defendants that they are not entitled to intermeddle with the administration of the plaint church under the 1934 Constitution was granted and they were also restrained by a permanent prohibitory injunction from interfering with such management under the 1934 Constitution. In so far as the first prayer for declaration as to the entitlement to function as Vicar of the plaint church; the lower court declined the prayer since according to the court the plaintiff had been working in various other churches as appointed by the Diocesan Metropolitan and the prayer had become infructuous.
6. I have heard learned Senior counsel Sri.M.C.Sen and Sri.K.J.Kuriachan for the appellants/defendants and Sri.B.G.Bhasker and Sri.Biju Abraham, counsel for the respondents/plaintiffs.
R.F.A.No.350 OF 2007 6
7. The history of the Malankara church is, as is the history of all mankind, the story of strife and conflict; from within the community and without. The history of the conflict is legion and a description of the same is unnecessary, in the above case, since the defendants have raised a preliminary objection with respect to the maintainability of the suit. The maintainability is challenged on two grounds, one for having not obtained leave under Section 92 of the Code of Civil Procedure and the other for not having followed the procedure under Order 1 Rule 8 and sought the permission of the court to sue in a representative capacity and implead the defendants in a representative capacity. It is the contention of the defendants that in the guise of exercising individual rights, what the plaintiff seeks to do is to impose the Orthodox factions' will on the parishioners of the plaint church, by invoking the 1934 Constitution. The plaintiff on the other hand maintains that the suit is one to exercise his personal rights and by seeking leave under Section 92, he would be exposing the suit to the fundamental issue of maintainability; which question, as the R.F.A.No.350 OF 2007 7 suit is now framed does not arise at all.
8. Anticipating an objection against raising the plea of maintainability at the appellate stage, the learned Senior counsel Sri.M.C.Sen takes me through A.I.R 1954 (S.C) 340, Kiran Singh and others v. Chaman Paswan and others and 2011(4) K.L.T 540, St.Peter's Orthodox Syrian Church v. Fr.Abraham Mathews. Kiran Singh (supra) was a case in which the plaintiff's suit for recovery of possession was dismissed finding the defendants to be cultivating tenants who had acquired occupancy rights. The first appeal before the District Court also having been dismissed, the plaintiffs were in second appeal before the High Court. At the second appeal stage, it was noticed that the suit was not properly valued and the defect was cured by payment of the deficient court fees. The enhanced valuation in the suit did not in any way alter the pecuniary jurisdiction of the original court, but however, the first appeal as per the enhanced valuation would be to the High Court and not to the District Court. The plaintiff hence contented that the High Court ought to treat the appeal filed before R.F.A.No.350 OF 2007 8 it, as a first appeal and ignore the constraints imposed by Section 100 of the Code of Civil Procedure. The High Court having rejected the claim, the plaintiffs were before the Supreme Court. The Supreme Court confirmed the order of the High Court on the reasoning that the plaintiffs who had initiated the proceedings could not subsequently turn around and question jurisdiction on the ground of a defect which was of their own making. What is relevant for our case is that the Supreme Court while considering the issue of what the position will be in law, when a court entertains a suit or an appeal over which it has no jurisdiction, it was held :
" it is a fundamental principle well-
established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
9. St.George Jacobite Syrian Church (supra) relied on R.M.Narayana Chettiar and another v. N.Lakshmanan Chettiar R.F.A.No.350 OF 2007 9 and others, A.I.R 1991 Supreme Court 221 to hold that if the case is one filed under Section 92 of the Code of Civil Procedure, then failure to obtain, the leave of the court before the institution of the suit, "will go to the root of the matter and is a jurisdictional defect or infirmity which cannot be cured by a post-institutional leave granted by the Court" (sic) (para 10). Going by the precedents this Court perforce would have to consider the question of maintainability since it goes to the root of the jurisdictional aspect; though that was not raised before the lower court or considered by it.
10. Section 92 of the C.P.C in its application insists on the three conditions, enumerated in the said Section, to co-exist. For one, there must be an express or constructive trust for public purpose of charitable or religious nature and then there must an allegation of breach of trust or the direction of the court should be deemed necessary for the administration of such trust. Together with this, is the further condition that the prayer in the suit should be for any one of the reliefs mentioned in sub-section (a) to (h) of R.F.A.No.350 OF 2007 10 sub-section(1) of Section 92. The three ingredients should exist together and an absence of either of these would take the suit out of the ambit of Section 92. In deciding this question, the pleadings as revealed from the plaint has to be analysed carefully. But before that, an examination of the law on the point would be fruitful.
11. The learned counsel for the respondent would meticulously take me through the 1934 Constitution which according to him governs all the churches irrespective of the faction to which they belonged to; as decided by the Supreme Court. The provisions of the Constitution according to the learned counsel would amply demonstrate that there is no public trust and it is only a private trust, the parishioners of which are ascertainable and constitute a definite determinative number. I am afraid it is too late in the day to advance such a position going by the binding precedent of a Division Bench of this Court in St.Peter's Orthodox Syrian Church, Puthnkurusu (Supra); which Church, belonging to the Patriarch faction, was held to be a public trust of a religious and charitable nature as contemplated in Section 92 of the R.F.A.No.350 OF 2007 11 C.P.C. Hence the first ingredient is satisfied.
12. A.I.R 1927 Madras 886 (Jambulinga Pathan and another v. Akilanda Asari and others), was a case in which after the removal of two trustees, the newly appointed trustees filed a suit for recovery of the properties from one of the trustees. The question whether the requisite sanction under Section 92 was necessary or not was held to be depending essentially upon the construction of pleadings in the case. On a reading of the plaint it was found that the plaintiff's complaint was that proper accounts were not kept by the defendant, there was no transparency in maintaining such accounts and hence, claimed for a declaration that the property is vested in them. Despite there being no pleading for the removal of the trustee or for the appointment of the new trustee, it was treated as a veiled attempt to take the suit out of the umbrella of Section 92. The object of the suit was held to be only to obtain the removal of the trustees and the plaintiffs were found to have worded the pleadings carefully to escape from the mischief of Section 92.
R.F.A.No.350 OF 2007 12
13. A.I.R 1974 (S.C) 2141 (Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another), arose out of the dispute on the installation of a Sankaracharya, the Head of a Math, while another one was already installed as the nominee of the earlier Sankaracharya. A group among the worshippers alleged the nominee to be incompetent to act as the Head of the Math and hence installed another. The followers of the latter filed a suit for injunction under Section 92 seeking an order restraining the nominee who was installed earlier from interfering with the Math properties. The District Court and High Court concurrently found that the suit was not maintainable under Section 92 of the C.P.C. The Supreme Court found that the relief claimed for the appointment of the head, sponsored by the plaintiffs, without even such person in the party array reveals the strain of the drafts-man to dress up the plaint with prayers to make it appear that it is a suit filed to champion the rights of the public and not the personal cause of their choice, for the post of Head of the Math.
14. The Supreme Court held succinctly as to when, a R.F.A.No.350 OF 2007 13 suit would fall under Section 92 and when there could be a disguised attempt to bring the suit under the ambit of Section 92 while exercising or attempting to advance individual claims and rights. Both sides rely on paragraph 10 which is extracted below :-
"10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. 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 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 right of the public but are seeking a declaration of their individual or personal rights or the individual or personal right of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92."
The nature in which both the appellants and the respondent relies on this will be discussed later. While in the majority of cases what was pressed into service was the absence of sanction under Section 92 , this was a case wherein the suit filed under Section 92 was held to be one intended to vindicate individual or personal rights and concluded in the dismissal of the suit, for reason of it not being covered under Section 92.
R.F.A.No.350 OF 2007 14
15. Charan Singh and another v Darshan Singh and others, A.I.R 1975 (S.C) 371, was a case in which the plaintiffs having failed to get the consent of the Advocate General, filed a suit endeavouring to frame it in such a manner as to take it out of the ambit of Section 92. The plaintiffs alleged the denial of rights to the Dara and Darbar Sahib and Guru Granth Sahib and alleged non discharge of the trustee's duties, in accordance with the objects of the religious institution in question. The Supreme Court held that "the maintainability of the suit under Section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement"
(sic). Reading the plaint as a whole the court found that there were allegations of acts of breach of trust, mismanagement, undue interference with the rights of the public and the plaintiffs sought for a decree against the trustee to force him to carry out the objects of the trust and perform his duties as a trustee. Though a declaration of their right in their religious institution was prayed for, reading the plaint as a whole it was held that the suit in fact R.F.A.No.350 OF 2007 15 wanted enforcement of due performance of the duties of the trustee in relation to a particular object of a trust. The plaintiffs were found to seek the courts aid in the administration of the trust. The Supreme Court held that the suit was one under Section 92 and was hence not maintainable for reason of it being filed not in conformity with the requirements of the said provision of law.
16. Such leave under Section 92 has been held to be a pre-condition for the very maintainability of the suit and is not a defect which could be cured at any stage. Section 92 as it originally stood contained the requirement of obtaining leave of the Advocate General before the institution of the suit. After the 1976 amendment, the consent contemplated under Section 92 was to be obtained from the principal Civil Court of original jurisdiction. This Court in A.I.R 1983 Kerala 5, P.V.Mathew and others v. K.V.Thomas and others, held that in the exercise of jurisdiction in granting leave under Section 92(1); the courts will be guided by the principles laid down in the judicial decisions regulating the power of the Advocate General; before amendment. Section 92 R.F.A.No.350 OF 2007 16 was held as contemplating grant of leave or a refusal of such a leave. Though, notice was held to be desirable, the Division Bench also held that it cannot be said to be a mandatory prescription. But it was categorically held that on the terms of Section 92(1) the leave is to precede the institution of the suit. The said decision was quoted with approval in A.I.R 1991 (S.C) 221, R.M.Narayana Chettiar and another v. N.Lakshmnan Chettiar and others, where the principle of grant of leave preceding the institution of the suit was reiterated.
17. The question whether a declaratory relief would take the suit out of the ambit of Section 92 was considered in a number of decisions of this Court : 1998(2) K.L.T 305 (Amrithakumari v. Ramanathan), 2009(4) K.H.C 473 (Varkey Abraham and Others v. St.Thomas Orthodox Syrian Church, Nechur and Others), 2010(3) K.L.T 382 (St. Peter's and Paul's Syrian Orthodox Church v. Varghese). It was repeatedly laid down and asserted that merely because the suit contains a declaratory relief that cannot take it out of Section 92. A declaration that a certain property R.F.A.No.350 OF 2007 17 appertains to a religious trust though held to be, lying outside the scope of Section 92, it cannot be gainsaid that in every suit in which a declaration is sought, the same would be saved from the mischief of Section 92.
18. Amrithakumari (supra) was a suit in which recovery of the plaint schedule property belonging to a high school which was a public trust was sought for along with a declaration that all alienations made were voidable. The suit was filed under Section 92 and leave obtained. The challenge against the order granting leave was on the premise that since there is a prayer for declaration the suit under Section 92 cannot be entertained. This Court refused to entertain the said challenge. Varkey Abraham (supra) followed Amrithakumari's (supra) case with respect to the scope of Section 92 and held that the absence of leave is a fatal defect in the very institution of the suit and even if the objection in that regard was not raised by the defendants, the court was bound to apply the law whether an issue in that regard was framed or not. It was essentially the duty of the court to see whether, upon the R.F.A.No.350 OF 2007 18 plaint averments the suit was one under Section 92 C.P.C; and whether it can be entertained without a leave application. Similar was the challenge in St.Peters Syrian Orthodox Church. There the church challenged the grant of leave in a suit which sought for settling a scheme for administration of the church, which in fact was a declaration that the church is to be administered in accordance with the terms and conditions of an 'udambadi'. This Court found that the mere fact that a declaration in the nature stated above is prayed for, by itself cannot take the suit outside the purview of Section 92.
19. The counsel for the plaintiff/respondents have relied upon the following decisions. Thomas Williams v. John and Others (1961 K.L.T (S.C) 58), Karimbanakkal Pokker v. Kathrikoya Molla and others (I.L.R 1990(2) Ker. 142), St.John's Jacobite Syrian Church v. Fr. John Moolamattom (2005(1) K.L.T 307) and Seline Fernandez v. Bernard Francis (2012(4) K.L.T 283). In Thomas Williams (supra) the plaintiff claimed a declaration of entitlement to carry on religious services in a Church R.F.A.No.350 OF 2007 19 and a consequential injunction from obstructing him. Though at first flush it may seem similar to the instant suit, both the plaintiff and the defendant therein, claimed under the London Missionary Society. The plaintiffs claim was supported by an appointment as Pastor by the authority of the society, while the first defendant claimed possession on behalf of the society. On facts it was found that, on the evidence tendered, the claim that the first defendant is in possession on behalf of the congregation, was not justified, since the first defendant, who was a Church worker had resigned that office. No similarity hence can be imputed to the instant case. Karimbanakkal Pokker and St.John's Jacobite Syrian Church (supra) were both suits instituted under Order 1 Rule 8 of the C.P.C. The suit in the former case was found to be not coming within the ambit of Section 92 since it sought to recover properties in favour of the trustee from trespassers in wrongful possession. In the latter the plaint averments were held to contain neither allegation of breach nor was any direction sought regarding administration. Seline Fernandez (supra) also was a case in R.F.A.No.350 OF 2007 20 which the trustees of a Church filed a suit under Order 1 Rule 8 for recovery of properties from the defendants; who also happened to be Parishioners. The facts available in the said cases can be clearly distinguished and the law applied cannot be said to be similar.
20. What remains to be considered is the reliance placed by the plaintiff on paragraph 10 of Swami Parmatmanand Saraswati (supra). The Supreme Court unequivocally laid down that a suit under Section 92 is of a special nature wherein all the three ingredients should be discernible. The plaintiff however canvasses for the position that since he is seeking only exercise of his individual rights, he would be non-suited if he seeks leave under Section 92. That would be the situation if there is no public trust of religious or charitable nature. Again if breach of trust is not alleged or a direction of the court for the proper administration is not sought for, the suit would not be one under Section 92. Even if the said ingredients exist; if the prayer is not one under (a) to (h) then also the suit would not fall under Section 92. The Supreme Court reiterated the principle that the three ingredients should co- R.F.A.No.350 OF 2007 21 exist and also drew a corollary to lay down that the absence of either of these would take the suit out of Section 92; and in the guise of vindicating public rights declaration of individual or personal rights cannot be permitted.
21. On the strength of the binding precedents above, the principles governing the institution of a suit under Section 92 C.P.C is more than clear, for bringing it within or taking it out of the umbrella of Section 92. The three ingredients; being (i) the existence of a trust created for public purposes of a charitable or religious nature, (ii) an allegation of breach of trust or a prayer for direction of the court for the administration of such trust and (iii) the relief being one under sub-Clause (a) to (h), should co-exist. If any one of the ingredients is absent, then a leave under Section 92 would not be necessary. The rigor of Section 92 is such that when any of the ingredients or all of them or either of them are absent, and the plaintiff attempts to exercise individual rights in the garb of public interest; in a suit filed under Section 92, then he would be non suited. But however, in cases where all the ingredients co- R.F.A.No.350 OF 2007 22 exist, leave has to be obtained before filing of the suit and it cannot be corrected at any later stage. The very institution should be with leave and absence thereof can result only in the suit being thrown out of court. With these principles in mind, one has to look at the plaint.
22. The plaintiff claims to be the constitutionally appointed Vicar of the St. George Jacobite Syrian Church, Chuvannamannu. The church, despite being a public trust and a juristic person; is not impleaded. The church is said to be belonging to the Malankara Orthodox Syrian Church and is said to be liable to be governed under the 1934 Constitution. The plaintiff claims to be the Vicar appointed by the Bishop of the Thrissur diocese, who in turn has been appointed by a decision of the newly formed Malankara Association. The plaintiff claims that the first defendant having not recognised the authority of the Thrissur Diocese Metropolitan, is not entitled to enter into the church or convene any meeting of the parishioners or interfere in the administration of the church. The defendants 3 and 4 are R.F.A.No.350 OF 2007 23 admittedly two of the trustees; whose election is challenged as being not by a lawful parish assembly. The plaintiff also confesses to his knowledge of a separate association and Church having been formed and they being governed by another set of bye laws. These are the pleadings on which, the plaintiff seeks declaration that he and his successors alone are entitled to function of the Vicar of the plaint church, with the exclusive right to perform all religious services and the right to convene the parish assembly; preside over the same, which in turn elects the parish management committee.
23. As was noticed above, it is too late for the plaintiff to contend that the church is not a public trust. By alleging that the Vicar, who is admittedly holding such religious and temporal office in the church, is one, who is not entitled to hold the post and is not properly appointed; he seeks the removal of the Vicar. The Vicar definitely is a trustee, and in addition the plaintiff seeks the removal of the defendants 3 and 4, who again are admittedly the secretary and trustee of the plaint church. Their disability not to function as trustee is for reason of disowning the 1934 R.F.A.No.350 OF 2007 24 Constitution, under which the administration of the plaint church is to be carried on. If this is not an allegation of breach, it is difficult to comprehend as to what breach of trust would constitute. On such allegations, the plaintiff also seeks the declaration which would amount to declaring him as a trustee, which has the effect of an appointment; by conferring him with the right to convene the parish assembly. The innocuous declaration would result in a fresh election bringing in new trustees.
24. The plaintiff seeks a further declaration that the defendants are not entitled to interfere in the administration of the church which has to be carried on under the 1934 Constitution. The plaintiff also claims a consequential injunction against the defendants restraining them from interfering in the management of the church by the plaintiff and his successors. This definitely is not an exercise of individual rights of the plaintiff. The principles evolved from the above cited decisions would clearly indicate that the craft employed in drafting, the dexterity of arranging the pleadings and the surreptitious manner in which the reliefs are R.F.A.No.350 OF 2007 25 claimed cannot deter the court from reading between the lines and looking at what the ultimate result would be. It cannot at all be said that the plaint is one filed for exercising individual rights. In the garb of exercising individual rights, what is sought for is the attempt to impose the will and Constitution of a group on another group. This Court is supported in the above view by the judgment of a learned Single Judge, in similar situations rendered in A.S. No.768 1988 on 4-1-2012 and A.S.No.361/1999 rendered on 9-3-2012.
25. This takes us to the further defect pointed out by the appellants/defendants that the suit suffers also from the defect of having not complied with the provisions of Order 1 Rule 8 of the C.P.C. It is trite that for a representative suit, the courts permission under Order 1 Rule 8 of the C.P.C is mandatory and the procedure there under was to be followed (Kalyan Singh v. Smt.Chhoti and others, A.I.R 1990 Supreme Court 396). The plaintiff, as has been found above, though claims to be exercising individual rights, is attempting to impose the will of a faction in the community on R.F.A.No.350 OF 2007 26 another faction. He seeks to take over the administration of a Church by himself and his successors, for and on behalf of a group in exclusion to the Parishioners who belong to another group. He admits that there is another Association to which the defendants belong. The defendants were impleaded in their personal capacity and they were in office only for a specified period; meaning that now they are not in office. The plaintiff cannot be taken as asserting his right in the community property, because he seeks to take charge of the Church, on behalf of the group to which he owes allegiance; in exclusion to the members of the Parish, all of whom are not in the party array. The institution of the suit is bad for not having followed the procedure under Order 1 Rule 8.
26. The valiant plea of exercising personal rights is belied by the plain words employed. A reading of the plaint, as noticed above would demonstrate the contrary. A priest seeking the aid of the Court, purportedly to assume office as Vicar of the plaint Church; claims such office to his successors too and asserts that on such assumption he be permitted to administer the R.F.A.No.350 OF 2007 27 Church by a set of rules he and his association profess. In claiming the reins of administration, which is to be carried on under the whip of the 1934 Constitution; the plaintiff also berates the conduct of the present administrators. The existence of a religious trust in the nature of a public trust being established; breach is alleged and direction to administer too is sought for. That the prayers fall under Clause (a); (b) and (c) and of course (h) of sub- section (1) of Section 92 does not fall for serious deduction, but is a matter of simple inference.
27. The very fact that the trial court refused the prayer for declaration to enable the plaintiff to function as Vicar of the plaint church repudiates the claim of enforcing individual rights. Having declined the prayer for individual aggrandizement the trial court ventured to step on to the premise earmarked under Section 92 of C.P.C; unknowingly. Personal rights and public interests should be clearly distinguishable. If the plaintiff is not entitled to a declaration that he should be continued as the Vicar of the plaint church can it be said that he is entitled to a relief that, the Church is R.F.A.No.350 OF 2007 28 to be administered as sought for by the plaintiff and the defendants kept away from the administration ? The answer would be an emphatic 'No'; in a suit filed without leave of the Court under Section 92 of the C.P.C. For the aforesaid reasons, this Court finds the suit filed by the plaintiff to be not maintainable and the judgment and decree of the lower court is set aside and the suit stands dismissed with costs of the defendants throughout.
K.VINOD CHANDRAN, JUDGE.
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