Kerala High Court
Bibin Basil vs Johnson Kuriakose on 24 January, 2019
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940
RP.No.16 of 2019 IN OP(C) No.3147/2018
AGAINST THE JUDGMENT IN OP(C) 3147/2018 of HIGHCOURT
REVIEW PETITIONER/THIRD PARTY:
BIBIN BASIL
AGED 22 YEARS, S/O.BASIL V PAUL,
VALAYIL HOUSE, THANKALAM, THRIKKARIYOOR P.O.,
KOTHAMANGALAM.
BY ADVS.
SRI.MATHEWS J.NEDUMPARA
SRI.P.BIJIMON
SRI.A.C.PHILIP
RESPONDENT/PETITIONER AND RESPONDENTS IN OP(C):
1 JOHNSON KURIAKOSE, AGED 52 YEARS,
S/O.KURIAKOSE, THEKKILAKATTU HOUSE,
KOZHIPILLY KARA, VARAPETTY,
KOTHAMANGALAM PIN 686 691
2 FR.THOMAS PAUL RAMBAN, AGED 52 YEARS,
S/O.PAULOSE, MARACHERIL HOUSE,
KUTHUKHUZHI KARA, KOTHAMANGALAM.PIN 686 691
3 FR.BIJU VARKEY, S/O.VARKEY, KORATTIYIL HOUSE,
MUVATTUPUZHA TALUK. PIN 686 673
4 FR.MONCY N.ABRAHAM, S/O.ABRAHAM,
NIRAVATHUKANDATHIL HOUSE,
KOTHAMANGALAM TALUK. PIN 686 693
5 FR.GEEVARGHESE M.T., S/O.THOMAS,
MUNNARAMBIL HOUSE, ALUVA TALUK
PIN 683 577
6 FR.BASIL K.PHILIP, KOTTIKAL HOUSE,
PADIKKAPPUKARAM, MANNAMKANDAM,
MANNAMKANDAM VILLAGE, PIN 686 673
Review Petition No.16 of 2019
in 2
O.P.(C) No.3147 of 2018
7 FR.BIBIN C.U., S/O.ULAHANNA,
CHERUKUNNEL HOUSE, THEKKENMARADY KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK.
PIN 686 672
8 SALIM CHERIAN, S/O.CHERIAN,
MALIYIL HOUSE, ILAVANDU KARA,
KOTHAMANGALAM - 686 691
R1 BY ADV. S.VINOD BHAT
R2 BY ADVS. SRI.S.SREEKUMAR (SENIOR ADVOCATE)
SRI.ROSHEN D.ALEXANDER
SMT.TINA ALEX THOMAS
R8 BY ADV. SRI.G.SREEKUMAR CHELUR
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08.01.2019,
THE COURT ON 24.01.2019 PASSED THE FOLLOWING:
Review Petition No.16 of 2019
in 3
O.P.(C) No.3147 of 2018
A.HARIPRASAD, J.
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Review Petition No.16 of 2019
in
O.P.(C) No.3147 of 2018
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Dated this the 24th day of January, 2019
ORDER
The above captioned original petition was disposed of by this Court after elaborately hearing both the sides. Challenge made in the original petition under Article 227 of the Constitution of India was against an order passed by the trial court directing police to enforce the temporary injunction order passed in a suit. This Court, after a detailed hearing, found that the order passed by the court below is factually and legally correct and it suffers from no infirmity. Hence the order was confirmed and appropriate directions were issued to the police officers.
2. Now the review petitioner has approached this Court raising multifarious contentions urging not only to review the judgment in the original petition, but seeking substantive reliefs, totally unconnected with the grounds of review.
3. Heard the learned counsel for the review petitioner and the learned senior counsel appearing for the contesting respondent.
4. Parties to the original petition are the parties in O.S.No.162 of 2018 before the Court of Munsiff, Muvattupuzha. The review petitioner is Review Petition No.16 of 2019 in 4 O.P.(C) No.3147 of 2018 neither a party in the suit nor a party in the original petition disposed of by this Court. However, he would contend that the suit is a representative suit instituted by invoking Order I Rule 8 of the Code of Civil Procedure, 1908 (in short, "CPC") and therefore he has every right to make a request for review. Even if that argument is accepted, this Court will have to carefully examine the question of maintainability of the review petition and merits of his contentions.
5. Before going into further details, I shall extract the prayers in the review petition to expose the fallacy of his contentions.
"(a) review its judgment dated 18 th December, 2018 in Original Petition (Civil) No.3147 of 2018 on the ground that it is unconstitutional and void inasmuch as it is vitiated by errors apparent on the face of the record; that it is without jurisdiction or in excess of jurisdiction, that it is in violation of the principles of natural justice and that it is in violation of express constitutional provisions;
(b) declare that the faith of the Review Petitioners and millions of faithfuls of the Malankara Jacobite Church that the Patriarch of Antioch is the apostolic successor of St.Peter, to whom Lord Jesus Christ had said "And I tell you that you are Peter, and on this rock I will build my church, and the gates of Hades will not overcome it. And I will give unto thee the keys of Review Petition No.16 of 2019 in 5 O.P.(C) No.3147 of 2018 the kingdom of heaven; and whatsoever thou shalt bind on earth shall be bound in heaven, and whatever thou shalt loose on earth will be loosed in heaven", and, therefore, invested with all spiritual, temporal and ecclesiastical powers as the head of the Church, which is an article of faith not justiciable, and any judgment or order which holds to the contrary, namely, that his spiritual, temporal and ecclesiastical powers over the Malankara Church is reduced to a vanishing point, is in violation of the said faith and thus unconstitutional and void, being violative of Articles 14, 19, 21, 25 and 26 of the Constitution; so too being one rendered behind their back, namely, without offering them any opportunity of hearing; so too it constituted no law of the land (precedent) within the meaning of Article 141 of the Constitution, being one rendered void ab initio;
(c) Without prejudice to prayer (b) above and in furtherance thereof, to declare that the judgments of this Hon'ble Court (sic) in moran Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors., AIR 1959 SC 31, Most Rev.P.M.A.Metropolitan & Ors. v. Moran Mar Marthoma & Anr., (1995) SCC Supl. (4) 286, K.S. Varghese and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church and others, (2017) 15 SCC 333 and in Civil Appeal Nos.6263 to 6265 of 2001 are unconstitutional and void, Review Petition No.16 of 2019 in 6 O.P.(C) No.3147 of 2018 being in violation of the fundamental right of the Petitioner and millions of faithfuls in respect of their freedom of conscience, faith and practice of religion, to the extent the said judgments hold that the Patriarch of Antioch does not enjoy any spiritual, temporal and ecclesiastical powers over the Orthodox Syrian Church, which is in conflict with the faith of the petitioner and millions of faithfuls that the Patriarch of Antioch is the apostolic successor of St.Peter, through whom alone the blessings of the Holy Spirit come down on the disciples (apostles) in the form of a dove on the 50th day of resurrection of Lord Jesus Christ while they were celebrating the Feast at the Sheon Palace;
(d) declare that the 1934 Constitution of the Malankara Orthodox Syrian Church adopted by the Malankara Association is not gospel and is of no legal consequence so far as the Petitioner and millions of faithfuls of the Jacobite group are concerned in so far as it permits consecration of Catholicos, Bishops, Priests Deacons, et al, without the imposition of hands by the Patriarch, the belief that the faith that the grace of the Holy Ghost could be transmitted to them only by way of imposition of hands, being an article of faith;
(e) declare that the parishioners are entitled to manage the affairs, assets and properties of the Church and institutions, Review Petition No.16 of 2019 in 7 O.P.(C) No.3147 of 2018 colleges, etc. run by them based on democratic principles, subject to the spiritual, temporal and ecclesiastical supremacy and authority of the Patriarch of Antioch and those dignitaries, Bishops, Priests and Deacons consecrated by him by imposition of hands;
(f) issue a writ in the nature of prohibition or any other appropriate writ or order or direction restraining and prohibiting the police machinery and the authorities under the State Government from extending any aid or support and, in particular, police protection to capture the Church or parishes and institutions under the management of the Patriarch group;
(g) pass any such other order or orders/directions as this Hon'ble Court may deem fit and proper in the interest of justice."
6. I have no doubt to hold that none of the prayers extracted above can be legally allowed. They are not only illegal, but also perverse. I shall state the reasons hereunder.
7. Besides, the learned senior counsel for the contesting respondents would contend that this is an attempt by a stooge or minion set up by the contesting defendants to thwart the course of justice and the petition itself is a sheer abuse of the process of court. On these grounds, the contesting respondent prays to dismiss the review petition with Review Petition No.16 of 2019 in 8 O.P.(C) No.3147 of 2018 compensatory costs.
8. The review petitioner claims to be a parishioner of Marthoma Cheriyapally, Kothamangalam (the disputed church). He further says that he believes in the spiritual, temporal and ecclesiastical authority of the Patriarch of Antioch. He disputes the status of the plaintiff (1st respondent), who claims to be the vicar of the church. Annexure-A1 is the copy of the plaint in O.S.No.162 of 2018 on the file of the Court of Munsiff, Muvattupuzha. Annexure-A2 is the affidavit filed by the plaintiff in support of the application for a temporary injunction. Annexure-A3 is the counter affidavit filed by the respondents 6 and 7 in the above mentioned temporary injunction application. Annexure-A4 is the order passed by the Munsiff in Annexure-A2 application. Annexure-A5 is copy of the memorandum of appeal in C.M.A.No.19 of 2018 before the Court of Subordinate Judge, Muvattupuzha. Annexure-A6 is the judgment passed by the Subordinate Judge in the above appeal confirming Annexure-A4 order. Annexure-A7 is the copy of O.P.(C) No.2333 of 2018 filed by the contesting defendants against Annexure-A6 judgment. It is pending adjudication before this Court. Annexure-A8 is the order passed by a learned single Judge in O.P.(C) No.2333 of 2018 on 18.09.2018 directing the parties to maintain status quo. Subsequently the said order was vacated by this Court. Annexure-A9 is the petition filed by the contesting respondent (plaintiff) before the court below as I.A.No.2738 of 2018 in O.S.No.162 of 2018 seeking enforcement of the injunction order Review Petition No.16 of 2019 in 9 O.P.(C) No.3147 of 2018 through police. Annexure-A10 is the order passed by the Munsiff on I.A.No.2738 of 2018 which was challenged in the original petition from which the review petition arises. Annexure-A11 is copy of the original petition wherein Annexure-A12 judgment was passed by this Court.
9. In the review petition, elaborate facts are pleaded verbosely, expatiating the past history of Malankara Church disputes. Since I find all these statements are unnecessary for the disposal of this petition, I am not reiterating them to make this order long-winded.
10. Indisputable fundamental aspect is that in order to maintain a review petition, the petitioner has to establish that the impugned judgment/order suffers from any mistake or error apparent on the face of the record. No one can legally maintain a review petition against an order passed by this Court by complaining that another judgment or a series of judgments of this Court or of the Supreme Court, which are to be considered as binding precedents, were pronounced on wrong premises. In other words, unless the review petitioner establishes that the order under challenge deserves to be reviewed on any of the grounds mentioned in Order XLVII Rule 1 CPC, this Court cannot entertain such a review petition.
11. Main plank of argument of the learned counsel for the review petitioner is that the judgments rendered by the apex Court in K.S.Varghese and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church and others (2017 (3) KLT 261) and in Mathews Mar Koorilos v. Pappy Review Petition No.16 of 2019 in 10 O.P.(C) No.3147 of 2018 (2018 (3) KLT 990) do not operate as res judicata. They do not bind this Court as precedents as well. According to him, those are decisions rendered per incuriam. Apart from this extreme position, it is urged before this Court that the judgments aforementioned did not consider the fundamental rights, of the petitioner and like persons, guaranteed by the Constitution of India. At the outset, I must affirmatively state that none of these contentions can be legally raised before this Court in a review petition. And those are nothing but cantankerous and disagreeable contentions.
12. According to the learned counsel for the review petitioner, all the decisions rendered by the apex Court, mentioned in prayer 'C' quoted above, were pronounced overlooking the fact that in P.M.A.Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001) the Patriarch was not a party. This submission is strongly opposed by the learned senior counsel appearing for the contesting respondent stating that he was a party in Moran Mar Bassellios Catholicos v. Thukalan Paulo Avira and others (AIR 1959 SC 31) and the entire issues were considered elaborately with proper parties on the array in P.M.A.Metropolitan and other subsequent decisions. Without unnecessarily elongating this order, I can hold that going by the scheme of the Constitution of India, this Court cannot grant any relief akin to the one claimed in prayer 'C'. It has been unambiguously declared by the apex Court in Suganthi v. Jagadeeshan (2002 (1) KLT 581) and many other decisions that it is impermissible for a High Court to overrule the Review Petition No.16 of 2019 in 11 O.P.(C) No.3147 of 2018 decision of the apex Court on the ground that the Supreme Court has not considered any other point. According to the line of decisions, it is not only a matter of discipline for the High Courts in India, but it is a mandate that the law declared by the Supreme Court shall be binding on all courts within the territory of India. On a careful perusal of the judgment in K.S.Varghese's case, it can be seen that the Supreme Court considered all the aspects involved in the civil appeal extensively and declared that the 1934 Constitution duly governs the affairs of the parish churches within the fold of Malankara Church. Nobody can have any doubt that this declaration was made by the Supreme Court invoking its authority under Article 141 of the Constitution of India and therefore it binds all the courts. Subsequently a contention was raised before the Supreme Court that the ratios in K.S.Varghese's case are not in consonance with those in Moran Mar Bassellios Catholicos and P.M.A.Metropolitan. A three Judge bench of the Supreme Court again examined the issues in Mathews Mar Koorilos's case and in unequivocal terms held that the decision in K.S.Varghese's case is completely congruous with the earlier decisions. It is therefore crystal clear that the arguments raised by the learned counsel for the petitioner cannot be accepted for the aforementioned reasons.
13. Argument raised by the learned counsel for the petitioner based on A.R.Antulay v. R.S.Nayak ((1988) 2 SCC 602), that if a decision has been given per incuriam, any court can ignore it, has no relevance in this Review Petition No.16 of 2019 in 12 O.P.(C) No.3147 of 2018 case since by no stretch of imagination this Court can hold that the decisions in P.M.A.Metropolitan, K.S.Varghese and Mathews Mar Koorilos are per incuriam. Such a declaration by this Court is factually and legally impossible in this matter. Therefore, this contention has also to be rejected.
14. Learned senior counsel for the contesting respondent submitted that the suits involved in P.M.A.Metropolitan's case were representative suits and 1064 churches were enlisted in the suit. The church involved in the present suit was also listed in the earlier round of litigations. The suits being representative suits, the decrees passed therein would bind not only the churches, but also the parishioners. It is therefore argued that the concept of res judicata enshrined in Explanation VI to Section 11 CPC is applicable in this case. I find this argument acceptable.
15. Contention raised by the learned counsel for the petitioner, that even if the decisions in K.S.Varghese and other cases operate as res judicata, it has to be eschewed from consideration as they violated the fundamental rights of the petitioner, is fallacious and preposterous. Such a contention cannot be raised in a review petition of this nature. From the nature of things, it cannot be assumed that the counsel for the petitioner innocently urged all these contentions before this Court. It is a clear indication that the parties may go to any extent to abuse the court proceedings. According to the learned senior counsel for the contesting respondent, the petitioner, who has been set up by the contesting Review Petition No.16 of 2019 in 13 O.P.(C) No.3147 of 2018 defendants, is only a name lender and the real intent of the parties is to procrastinate the ultimate resolution of the disputes in accordance with the settled legal principles. Certainly, such practises deserve to be deprecated in the strongest words.
16. Another contention raised by the learned counsel for the petitioner, that the judgments in K.S.Varghese and P.M.A.Metropolitan cannot be treated as judgments-in-rem, also does not appeal to the conscience of this Court. It is true that an inter-party judgment cannot be classified as a judgment-in-rem in all situations. But the fact that all the above judgments were passed in representative suits and the Supreme Court had elaborately considered the rights and obligations of the parties with reference to 1934 Malankara Church Constitution can never be ignored by this Court. Even if I accept the argument that those decisions cannot be classified as judgments-in-rem, I find that they do bind this Court as precedents.
17. According to the learned counsel for the petitioner, apart from Order XLVII CPC, this Court has inherent power under Article 215 of the Constitution to review the order/judgment passed. There cannot be a doubt that this Court, being a court of record, has enough powers for rendering effective justice; but that does not mean that the review petitioner's frivolous contentions should be allowed ignoring all the cardinal legal principles touching on the review of a judgment/order.
Review Petition No.16 of 2019in 14 O.P.(C) No.3147 of 2018
18. As mentioned earlier, the history of Malankara Church traced in the review petition is a contentious one and relying on such expatiated averments, no relief can be granted unless it is established that there exists any ground for a review. As pointed out earlier, the review petitioner cannot succeed by disputing the correctness of the judgments rendered by the Supreme Court in Malankara Church cases. I find absolutely no merit in the review petition. The submission by the contesting respondent that it is filed only to prolong the litigation and to make the issues more complicated has to be accepted. Having said so, the only consequence is that the petition has to be dismissed.
19. Next question is regarding imposition of compensatory costs as claimed by the learned senior counsel on behalf of the contesting respondent. Having regard to the nature of contentions raised by the petitioner, this Court has no hesitation to hold that all the averments in the petition are frivolous, vexatious and without any bonafides. However, the contesting respondent cannot make a claim for compensatory costs in this proceedings. Without prejudice to his rights to claim it at the end of trial, his request is rejected.
20. Nevertheless, this is a case where the petitioner (whether he has approached this Court on his own volition or set up by some other persons is immaterial) has exceeded all the limits of abusing the process of court. He has shown the audacity to challenge a catena of decisions of the Review Petition No.16 of 2019 in 15 O.P.(C) No.3147 of 2018 highest court of the land rendered after considering all the relevant matters in an inappropriate action. And he levelled the challenges consciously before this Court knowing that this Court cannot brush aside the binding precedents based on his whimsical contentions. Attempt to misuse or abuse the justice administration system with ulterior motives has to be nixed at the first opportunity. The petitioner has to pay exemplary costs for wasting judicial time on frivolous and vexatious contentions. Therefore, this Court finds that the petitioner is liable to pay exemplary costs to the Kerala State Legal Services Authority (KELSA) constituted under the provisions of the Legal Services Authorities Act, 1987, which renders great services to humanity by conducting adalaths, legal literacy classes and free legal aid. As per Government Order No.G.O.(Ms.) No.107/2011/RD dated 26.02.2011 issued by the Revenue (H) Department of Government of Kerala by invoking Section 71 of the Kerala Revenue Recovery Act, 1968, KELSA, Kochi has been declared, in the public interest, as an institution to which the provisions of the Revenue Recovery Act should be extended. Considering all these aspects, following directions are issued.
In the result, the review petition is found to be not maintainable on facts and law and hence it is dismissed. All the interlocutory applications pending are also dismissed. The petitioner shall pay a sum of `50,000/- (Rupees fifty thousand only) as exemplary costs to the KELSA, Kochi within a period of two weeks. Registrar (Judicial) shall furnish forthwith a copy of Review Petition No.16 of 2019 in 16 O.P.(C) No.3147 of 2018 this order to the Member Secretary, KELSA. If the amount is not paid within the said time, the Member Secretary, KELSA shall forward a copy of this order to the District Collector, Ernakulam and he shall take all steps forthwith to recover the amount under the Kerala Revenue Recovery Act, 1968 and shall remit the amount to KELSA without any delay.
A.HARIPRASAD, JUDGE.
cks Review Petition No.16 of 2019 in 17 O.P.(C) No.3147 of 2018 APPENDIX PETITIONER'S EXHIBITS ANNEXURE-A1 COPY OF THE PLAINT IN OS NO.162 OF 2018 FILED BEFORE THE MUNSIFF COURT, MUVATTUPUZHA ANNEXURE-A2 COPY OF IA NO.830/2018 IN OS NO.162/2018 BEFORE THE MUNSIFF COURT MUVATTUPUZHA SEEKING AD INTERIM RELIEFS ANNEXURE-A3 A COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF DEFENDANT NOS.6 AND 7 IN IA NO.830/2018 OPPOSING THE AD-INTERIM INJUNCTION SOUGHT FOR IN THE IA ANNEXURE-A4 A COPY OF THE ORDER DATED 21.7.2018 IN IA NO.830/2018 ALLOWING THE AD INTERIM INJUNCTION SOUGHT ANNEXURE-A5 - COPY OF THE CMA NO.19/2018 FILED AGAINST THE ORDER DATED 21.7.2018 PASSED IN IA NO.830/2018 ANNEXURE-A6 COPY OF THE ORDER DATED 12.09.2018 IN CMA NO.19/2018 ANNEXURE-A7 COPY OF OP(C) NO.2333/2018 FILED BEFORE THIS COURT ANNEXURE-A8 COPY OF THE ORDER DATED 18.09.2018 PASSED IN OP(C) NO.2333/2018 ALLOWING STATUS QUO ANNEXURE-A9 COPY OF IA NO.2738/2018 FILED BY THE CATHOLICOS FACTION BEFORE THE MUNSIFF, MUVATTUPUZHA SEEKING A DIRECTION TO THE DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA TO GIVE ADEQUATE POLICE PROTECTION ANNEXURE-A10 A COPY OF THE ORDER DATED 23RD NOVEMBER 2018 BY THE MUNSIFF, MUVATTUPUZHA IN IA NO.2738/2018 ANNEXURE-A11 COPY OF OP(C) NO.3147/2018 FILED BY DEFENDANT NO.8 JOHNSON KURIAKOSE AGGRIEVED BY THE ORDER IN IA NO.2738/2018 PASSED BY MUNSIFF, MUVATTUPUZHA ANNEXURE-A12 COPY OF THE ORDER DATED 18.12.2018 BY THIS COURT IN OP(C) NO.3147/2018 DISMISSING THE SAME ANNEXURE-A13 COPY OF THE APPLICATION FOR REVIEW OF THE JUDGMENT FILED BY JOHNSON KURIAKOSE WHO IS PETITIONER IN OP(C) NO. 3147/2018 WHICH IS PENDING ANNEXURE-A14 COPY OF THE APPLICATION FILED BY JOHNSON KURIAKOSE SEEKING REVIEW/STAY OF ALL FURTHER PROCEEDINGS IN FURTHERANCE OF THE JUDGMENT DATED 18.12.2018 ANNEXURE-A15 COPY OF THE ORDER DATED 21.12.2018 IN EXT.P15 ANNEXURE-A16 A COPY OF THE ORDER DATED 2.11.2018 IN WRIT PETITION NO.446 OF 2018 PASSED BY THE SUPREME COURT OF INDIA ANNEXURE-A17 COPY OF THE PLACES OF WORSHIP (SPECIAL PROVISIONS) ACT, 1991 WHICH CAME INTO EFFECT ON 11.7.1991 (SECTIONS 3 AND 4(1) OF THE SAID ACT) Review Petition No.16 of 2019 in 18 O.P.(C) No.3147 of 2018 ANNEXURE-A18 COPY OF THE ORDER DATED 31.8.2016 PASSED BY THE SUPREME COURT IN SLP NO.32000 OF 2011 RESPONDENTS' EXHIBITS: NIL //TRUE COPY//