Karnataka High Court
Mr Charles Stany D Souza vs Parish Council Of Holy on 12 September, 2013
Author: K.L.Manjunath
Bench: K L Manjunath
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE K L MANJUNATH
Writ Petition Nos. 7924 & 9596 of 2012 (GM-CPC)
BETWEEN
1. MR CHARLES STANY D SOUZA
S/O DASIL D SOUZA
AGED 79 YEARS
R/AT WILFO VILLA,
SIRLAPADPU,
KULASHEKHARA
MANGALORE - 5
2. MR XAVIER SEQUEIRA
S/O LOUIS SEQUEIRA
AGED 78 YEARS
R/AT CHURCH COMPOUND,
KULASHEKHARA
MANGALORE - 5
3. MR ANDREW D ALMEIDA
S/O LATE MR JOHN D ALMEIDA
AGED 58 YEARS
R/AT ANCIL COMPLEX,
NEAR KULASHEKHARA COWKI
MANGALORE - 5
4. MR IGNATIUS D SOUZA
S/O LATE SEBASTIAN D SOUZA
AGED 55 YEARS
R/AT KHRISTHO JYOTHI,
SIRLAPADU,
KULASHEKHARA,
MANGALORE - 5
5. MR EEVAN JOHN VAS
S/O ALFRED VAS,
AGED 51 YEARS
R/AT KALPANE,
2
KULSHEKHARA,
MANGALORE - 5
6. MR VINCY HOROLD CUNHA
S/O JACOB CUNHA
AGED 48 YEARS
R/AT CHURCH COMPOUND,
KULASHEKHARA
MANGALORE - 5
7. MR JOHN VIVIAN D SOUZA
S/O LATE MAREEL D SOUZA
AGED 46 YEARS
R/AT EMMANNUEL
CHURCH COMPOUND,
KULASHEKHARA,
MANGALORE - 5
8. MR ALBAN MAXIM MENEZES
S/O JOHN SYDNEY MENEZES
AGED 43 YEARS
R/AT DUBOIS MANSION
SILVERGATE,
KULASHEKHARA,
MANGALORE ... PETITIONERS
[By M/s Dharmashree Associates, Advs.]
AND
1. PARISH COUNCIL OF HOLY
CROSS CHURCH CORDEL
REP. BY ITS PRESIDENT
KULASHEKHARA
MANGALORE - 5
2. REV. FR. VALERIAN PINTO
S/O MARCEL PINTO
PARISH PRIEST OF HOLY
CROSS CHURCH CORDEL/
PRESIDENT OF PARISH COUNCIL
AGED 71 YEARS,
HOLY CROSS CHURCH,
CORDEL, KULASHEKHARA,
MANGALORE - 5
3
3. MR VICTOR VAS
S/O SYLVESTER VAS
AGED 51 YEARS
VICE-PRESIDENT OF PARISH
COUNCIL OF HOLY
CROSS CHURCH,
CORDEL, KULASHEKHARA,
MANGALORE - 5 ... RESPONDENTS
[By Sri Jayakumar S Patil, Sr. Counsel for
Sri Cyril Prasad Pais, Adv. for C/R]
THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED COMMON ORDER DATED 10.02.2012 IN
M.A.NO.11/2009 & M.A.NO.12/2009 PASSED BY THE II ADDL.
SENIOR CIVIL JUDGE, MANGALORE, D.K. FILED BY THE
RESPONDENTS HEREIN VIDE ANNEXURE - A AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING,
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The divergent findings of the courts below are called in question in these petitions.
2. Petitioners are plaintiffs in O.S.No.130/2009 on the file of III Additional Civil Judge, (Jr. Dn.), Bangalore. The suit is filed by them against defendants for a perpetual injunction restraining the defendants or any body claiming under them from demolishing the existing Church, ancient monuments mentioned in the plaint schedule property and to grant mandatory injunction directing the defendants or any of the defendant who is found to be liable, to 4 reconstruct the monument. In the suit an application came to be filed under Order 39 Rules 1 and 2 to restrain the defendants from demolishing the plaint schedule properties and holy places in the church in question. The said application came to be resisted by the defendants on the ground that the plaintiffs have no locus-standi to maintain the suit and that the defendants have no intention to demolish any portion of the church. According to them, they are only renovating with the permission of the Parish Pastrol Parishad and the Bishop. Therefore, they requested the court to dismiss the application. The Trial Court granted an order of injunction. Aggrieved by the order of the Trial Court, the respondents filed an application under Order 43 Rule 1 CPC in M.A.Nos. 11 and 12/2009. The Lower Appellate Court considering the entire case came to the conclusion that the defendants have no intention to demolish the church or the monument and they are only renovating with the consent of the Bishop. Accordingly, appeals came to be allowed and the order of injunction granted on 1.3.2009 in O.S.No.130/09 5 was set aside on 10.2.2012. Therefore, the present petitions are filed.
3. Having heard the counsel for the parties, this court does not see any reasons to interfere with the order of the Lower Appellate Court for the following reasons:
It is the specific case of the respondents that they have no intention to demolish the church or the monument therein. Fr. Valerian Pinto has filed the Affidavit before this court that he has no intention to demolish the church and it is his intention to preserve the existing church as a monument of Father Alexander Dubois and that he is only replacing the flooring of the church by changing existing black and white Kadapa flooring into polished Granite with the permission of the Bishop which is in the finishing stage.
4. The affidavit filed is taken on record and since the respondents have no intention to demolish as they have given an undertaking to this court, this court cannot prevent the respondents from changing the flooring of the 6 Church since the church was built centuries ago. For change of flooring Bishop has also granted permission.
5. In view of the Affidavit filed by they father of Holy Cross Church, these Writ Petitions are disposed off directing the respondents not to demolish the church. However, they are at liberty to renovate the church with the permission of the Bishop or any other competent person.
Sd/-
JUDGE Ak