Kerala High Court
V.I Baby vs St.Mary'S Orthodox Syrian Church on 5 December, 2012
Author: A.V.Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934
FAO.No. 31 of 2013 ()
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(AGAINST ORDER IN I.A.NO.6025 OF 2012 IN O.S.NO.32 OF 2012 OF 1ST ADDL.
DISTRICT COURT, ERNAKULAM DATED 05/12/2012)
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APPELLANT(S)/PETITIONERS:
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1. V.I BABY, S/O.ITTAN, AGED 56 YEARS
VATTAKATTU HOUSE,SOUTH MARADY P.O.,MUVATTUPUZHA
2. JOY ISSAC, S/O.ISSAC, AGED 63 YEARS
ORNACHERAYIL HOUSE,EAST MARADY P.O.,MUVATTUPUZHA.
3. C.V.SAJU, S/O.C.C.VARKEY, AGED 44 YEARS
CHERUSSERIL HOUSE,EAST MARADY P.O.,MUVATTUPUZHA.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.JUSTINE JACOB
RESPONDENT(S)/RESPONDENTS:
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1. ST.MARY'S ORTHODOX SYRIAN CHURCH,
KURUKKUNNAPURAM,MARADY
REPRESENTED BY ITS VICAR FR.N.D.DANIEL.
2. FR.N.N.DANIEL, S/O.LATE FR.VARKEY DANIEL
NEDUMPURATH HOUSE,SOUTH MAZHUVANNUR,MUVATTUPUZHA.
3. FR.PAUL ISSAC, S/O.ISSAC, AGED ABOUT 49,
KAVALALIL HOUSE,KEEZHILAM P.O.,PERUMBAVOOR.
4. V.V.BABY, S/O.VARKEY, AGED ABOUT 63 YEARS,
VELAMAKUDIYIL HOUSE(PALAPPURAM),SOUTH MARADY P.O.
MUVATTUPUZHA,TRUSTEE.
5. V.M.PAULOSE, S/O.MATHAI, AGED ABOUT 59 YEARS,
VAVUNGAL HOUSE,EAST MARADY P.O.,MUVATTUPUZHA
TRUSTEE.
BY ADV.SHRI.R.D.SHENOY (SR.) FOR RESPONDENTS
R5 BY ADV. SRI.S.VINOD BHAT
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
22-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN
& A.V.RAMAKRISHNA PILLAI, JJ.
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F.A.O. No.31 of 2013
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Dated this the 22nd day of January, 2013.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
The plaintiffs in a suit filed with leave under Section 92 of the CP Code, are the appellants.
2. While the plaintiffs claim right and have raised issues in relation to the governance of St.Mary's Orthodox Syrian Church, Kurukkunnapuram in Marady, the fact of the matter remains that defendants 3 to 5 are undisputedly in the management and control of the affairs of that Church as on the date of institution of the suit. The plaint proceeded with the specific complaint that defendants 3 to 5 are unauthorisedly asserting authority though they do not owe allegiance to 1934 Constitution, which was subject matter of the decision of the Apex Court in PMA Metropolitan v. Moran FAO 31/13 -2- Mar Marthoma & another (AIR 1995 SC 2001), and that those defendants owe allegiance to the new Constitution stated to have been brought into existence in 2002. Fundamentally, what their Lordships of the Apex Court hoped to end by the verdict rendered in PMA Metropolitan's case (Supra) is continuing to survive as a controversy in the community concerned. The crux of the litigation from which this appeal arises is as to whether it is the 1934 Constitution or the 2002 Constitution that governs the Church in existence. To our query, we are told that the Church is included in the list following the aforesaid judgment in PMA Metropolitan (Supra) and representatives of this Church had also participated in the election conducted under the control of the Honourable Mr.Justice V.S.Malimath, the former Chief Justice of this Court following the directions of the Apex Court in PMA Metropolitan (Supra).
3. Insofar as this appeal is concerned, the plaintiffs FAO 31/13 -3- sought for an order of temporary injunction restraining defendants from continuing with the construction activity of the Church. The plea is that the existing Church was pulled down, and a new Church is being built. As noted by the court below, the construction of the Church is more than half-way through and defendants 3 to 5 are shown to be in the management of the affairs of the Church. Completion of the Church would provide adequate space for the families, who are participating in the prayers. Ultimately, the right, title and interest over the building and the management of the affairs of the Church, if snow-falling to issues, which call for adjudication, they will be decided and parties will enjoy or suffer the decree without any equities working on the basis of having spent funds or having led the construction of the structure, which is now being constructed. With this, we do not find any ground to interfere with the findings of the court below that the plaintiffs have not established a prima facie case for grant of temporary injunction and that the balance of FAO 31/13 -4- convenience is against granting an order of temporary injunction restraining the on-going construction activity. Irreparable injury will not be caused to the plaintiffs, since the final adjudication will only decide the right of parties de hors as to who constructed the building and spent funds for it. Not only that, as pointed out by the learned Senior counsel appearing for the respondents (defendants), his clients are not making any personal claim and they are only acting on behalf of the community. Obviously therefore, individual interests would not arise at any point of time.
In the result, this appeal is dismissed clarifying that the court below will decide on the main matter ultimately, untrammeled by anything stated in this judgment and in the impugned order, and also without any equitable consideration for the defendants, merely on ground of having made the construction. We also record the request of the plaintiffs that the court below may expedite final disposal of the suit. If any FAO 31/13 -5- request is made in that regard before the court below, that would be considered sympathetically by the learned Judge.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (A.V.RAMAKRISHNA PILLAI, JUDGE) jg