Kerala High Court
St.Peter'S And St.Pauls'S Orthodox ... vs Cheria @ Cherian on 11 December, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937
FAO.No. 252 of 2015 ()
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IN IA NO.1365/2014 AND IA NO.1470/2014 IN OS.NO.8/2014 OF IST ADDITIONAL
DISTRICT COURT, ERNAKULAM
APPELLANT(S)/RESPONDENTS/DEFENDANTS:
1. ST.PETER'S AND ST.PAULS'S ORTHODOX SYRIAN CHURCH,
AIKKARANADU SOUTH VILAGE, KUNNATHUNADU TALUK.
2. FR. JACOB KURIAN,
AGED 62 YEARS, S/O KURIAN, VICAR,
ST. PETER'S AND ST. PAUL'S ORTHODOX SYRIAN CHURCH,
AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.THOMAS P.KURUVILLA
SRI.P.PRIJITH
RESPONDENT(S)/PETITIONERS-PLAINIFFS & ADDL. RESPONDENTS 3 TO 6:
1. CHERIA @ CHERIAN,
AGED 70 YEARS,S/O PATHROSE, KARAMOLEL, PATTIMATTOM VILLAGE,
KADAYIRUPPU PO, VALAMBUR, PIN-682 311.
2. PAULOSE,
AGED 47 YEARS,S/O MARKOSE, VATTATHAKIDIYIL,
RAMAMANGALAM VILLAGE, RAMAMANGALAM.
3. BABU V.P.,
AGED 50 YEARS, S/O PATHROSE, VALYATHOOTTU,
AIKKARANADU SOUTH VILLAGE.
4. ABRAHAM V.P.,
S/O PATHROSE, VALLAPPARAPOOKKOTTIL,
AIKKARANADU NORTH VILLAGE, KOLENCHERRY, PIN-682 311.
5. E.M. PAUL @ PAILY,
S/O VARKEY MATHAI, ERUMBAYIL
AIKKARANADU NORTH VILLAGE, KOLENCHERRY, PIN-682 311.
6. PAUL MATHAI V.,
AGED 57 YEARS, S/O LATE V.M. MATHAI, VALAYIL HOUSE,
KOLENCHERRY-682 311.
7. SAJU P. VARGHESE,
S/O. P.T. VARGHESE PADIJAKARAYIL, PANCODE P.O.,
VIA VADAVUCODE-682 310.
R1 BY ADV. SRI.K.M..VARGHESE (CAVEATOR)
R.. BY ADV. SRI..SHAHUL HAMEED MOOPPAN (CAVEATOR)
R6&7 BY ADV. SRI.SAJU WAHAB
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
15/01/2016, THE COURT ON 01/02/2016 DELIVERED THE FOLLOWING:
rvs.
FAO.No. 252 of 2015 ()
APPENDIX
PETITIONER(S)' EXHIBITS :
NIL.
RESPONDENT(S)' EXHIBITS :
ANNEXURE R1(A). TRUE COPY OF THE PLAINT IN O.S.NO.8/2014 DATED 11/12/2013
PENDING BEFORE THE FIRST ADDITIONAL DISTRICT COURT,
ERNAKULAM.
ANNEXURE R1(B). TRUE COPY OF IA NO.1365/2014 IN OS NO.8/2014 DATED
11/12/2013.
ANNEXURE R1(C). TRUE COPY OF THE COUNTER AFFIDAVIT DATED 26/03/2014 FILED BY
DEFENDANT NO.2 TO IA 1365/2014.
ANNEXURE R1(D). TRUE COPY OF THE IA NO.1470/2014 IN OS NO.8/2014 DATED
01/03/2014.
ANNEXURE R1(E). TRUE COPY OF THE COUNTER AFFIDAVIT TO IA NO.1470/2014 DATED
04/04/2014.
ANNEXURE R1(F). TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANT NO.2
DATED 31/03/2014.
/TRUE COPY/
P.A.TO JUDGE
rvs.
C.R.
P.B.SURESH KUMAR, J.
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F.A.O.No.252 of 2015.
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Dated this the 1st February, 2016.
J U D G M E N T
The order in an application for temporary injunction is under challenge in this appeal. The defendants in the suit are the appellants.
2. Respondents 1 to 3 instituted the suit alleging that they are parishioners of the first defendant church; that their names are included in the parish register as also in the parish assembly register of the first defendant church maintained in the year 1973 and that the second defendant Vicar of the first defendant church is attempting to exclude the plaintiffs and other eligible parishioners from the parish registers of the first defendant church. It was also alleged by the plaintiffs that there exists a factional dispute among the parishioners of the first defendant church FAO.No.252/2015.
2 and the second defendant is attempting to exclude the eligible parishioners including the plaintiffs from the parish registers of the first defendant church at the instance of the leaders of one faction. The plaintiffs, therefore, claimed a decree of permanent prohibitory injunction restraining the second defendant from excluding the plaintiffs and other eligible parishioners from the parish registers of the first defendant church. The plaintiffs also sought a decree of mandatory injunction directing the second defendant to update/prepare parish registers of first defendant church in tune with the registers maintained in the year 1973.
3. Along with the suit, the plaintiffs filed I.A.No.1365 of 2014 seeking an order of temporary injunction restraining the second defendant from excluding the plaintiffs and other eligible parishioners from the parish registers of the first defendant church till the disposal of the suit. The defendants filed objection to I.A.No.1365 of 2014 contending, among others, that the suit is one which falls FAO.No.252/2015.
3 within the ambit of Section 92 of the Code of Civil Procedure and that in so far as the plaintiffs have not obtained leave of the court for instituting the suit as provided for in the said Section, the same is not maintainable. On merits, the defendants contended that the plaintiffs have disassociated with the Malankara Orthodox Syrian Church and joined in a new church called Yacobaya Suriyani Christiani Association and thus ceased to be the parishioners of the first defendant church. The allegation of the plaintiffs that their names are included in the parish registers of the first defendant church maintained in the year 1973 has been specifically denied by the defendants.
4. When the defendants filed objections to the application for temporary injunction raising the contentions referred to above, the plaintiffs filed I.A.No.1470 of 2014 seeking orders directing the second defendant to produce the parish registers of the first defendant church including its back registers from the year 1972-73. In the said FAO.No.252/2015.
4 interlocutory application, initially the court passed an order directing the defendants to produce the documents or file affidavit. Though the second defendant has initially filed an affidavit in the suit pursuant to the said order stating that the defendants are not in possession of the parish registers of the first defendant church, later the second defendant filed an affidavit stating that they are in possession of the registers of the first defendant church for the period from 2002. When I.A.No.1365 of 2014 came up for orders thereupon on 29.10.2015, the learned counsel for the second defendant undertook that they will produce the parish registers of the first defendant church from the year 2002 onwards. Later, on 14th November, 2015, the court noticed that the second defendant has not produced the parish registers of the church since 2002 as undertook by his counsel. Consequently, the court below allowed I.A.No.1365 of 2014 and granted the order of injunction sought by the plaintiffs on the ground that since the FAO.No.252/2015.
5 defendants have not produced the documents which they undertook to produce, the plaintiffs are entitled to the order of injunction sought by them. The defendants 1 and 2 are aggrieved by the said decision of the court below and hence this appeal.
5. Heard the learned Senior Counsel for the appellants as also the learned counsel for respondents 1 to
3.
6. As noted above, the specific case of the plaintiffs is that their names are included in the parish register as also in the parish assembly register of the first defendant church maintained in the year 1973 and that the defendants are attempting to exclude their names from the parish registers of the first defendant church. It is seen that even while setting up the case that the names of the plaintiffs are included in the parish register and the parish assembly register of the year 1973, in paragraph 7 of the plaint, the plaintiffs state that it is revealed to them on FAO.No.252/2015.
6 enquiry that the second defendant is not in custody of the registers of the first defendant church of the year 1973. The relevant portion of the said pleading of the plaintiffs reads thus:
"In fact, on enquiry with defendant No.2 it revealed that the Vicar is not even in custody of basic registers referred to above preserved during 1973."
In other words, the injunction that is sought in the suit is against the exclusion of the plaintiffs and other eligible parishioners from the parish registers maintained in the year 1973. In the counter affidavit filed to I.A.No.1365 of 2014, the defendants have disputed the allegation of the plaintiffs that their names are included in the parish register and the parish assembly register of the first defendant church. Further, in the affidavit filed by the second defendant in the suit on 23.9.2015, it is stated by the second defendant that the first defendant church was under
the administration of the Receiver appointed by the court in O.S.No.19 of 1980; that the church and its properties were FAO.No.252/2015.
7 consequently under the said Receiver and that on the dismissal of O.S.No.19 of 1980, the records of the church were handed over by the Receiver to the surviving members of the managing committee of the church elected on 16.12.1973. It is also stated by the second defendant in the said affidavit that during 1998, the church and its properties were taken over by the Sub Divisional Magistrate and that he obtained the key of the church from the Sub Divisional Magistrate only during 2010. It is further stated by the second defendant in the said affidavit that he is not in possession of the parish register and the parish assembly register of the first defendant church of the year 1973 and of the later years. It was also clarified by the second defendant in the said affidavit that the parish registers of the first defendant church were prepared only in the year 2002. As noted above, the plaintiffs have no case that their names are included in the registers maintained in the church after 1973. Since the plaintiffs themselves have no FAO.No.252/2015.
8
case that their names are included in the registers of the church maintained in the year 2002, the said registers may not be of any relevance in the matter of deciding the question as to whether the plaintiffs are parishioners of the first defendant church or the question as to whether their names are included in the parish registers maintained in the year 1973. As such, the view taken by the court below that since the defendants have not produced the registers of the church for the period from 2002, the plaintiffs are entitled to the order of temporary injunction sought by them, is unsustainable. It is trite that the power under Rule 1 of Order 39 of the Code of Civil Procedure to pass an order of temporary injunction can be exercised by the court only if the court is satisfied that the plaintiff has made out a prima facie case; that balance of convenience is in favour of passing an order of injunction and that irreparable injury will be caused to the plaintiff, if the order of injunction sought is not granted. True, the defendants have not honoured the FAO.No.252/2015.
9 solemn undertaking made before the court that they will produce the registers of the first defendant church maintained from the year 2002 onwards. But, merely for the reason that the defendants have not produced the documents which they undertook to produce, the court does not get the power to pass an order of temporary injunction without satisfying the jurisdictional factors namely prima facie case, balance of convenience and irreparable injury. If a party does not produce a document which he has undertaken to produce or which he was directed to produce, the court can certainly draw adverse inference against him in the matter of deciding the jurisdictional factors namely prima facie case, balance of convenience and irreparable injury. But, for the said reason, an order of injunction cannot be granted in favour of the other. The impugned order, in the circumstances, is unsustainable and liable to be set aside.
In the result, the appeal is allowed. The order FAO.No.252/2015.
10 dated 4th November, 2015 on I.A.No.1365 of 2014 in O.S.No.8 of 2014 is set aside. The court below is directed to consider I.A.No.1365 of 2014 afresh on merits.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
// true copy // PA TO JUDGE.