Kerala High Court
K.P.Mathaikunju vs Kuriachan.K.K on 18 March, 2019
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940
OP(C).No. 65 of 2019
AGAINST THE ORDER/JUDGMENT IN OS 20/2013 of ADDITIONAL DISTRICT
COURT (ADHOC) - I, ERNAKULAM DATED 20-12-2018
PETITIONERS/DEFENDANTS 3 & 5 TO 7, 4th DEFENDANT DIED:
1 K.P.MATHAIKUNJU
AGED 65 YEARS
S/O. PAILIPPILLAI, KEERIKKATTIL HOUSE, VADAVUKODE
(P.O), VADAVUKOD VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN-682 310
2 V.V. YACOB
AGED 67 YEARS, S/O. VARKEY, VATTAPPARA HOUSE,
PANCODI P.O, VADAVUKOD VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682 310
3 FR. M.P. JOSE
AGED 62 YEARS
S/O. M.O. POULOSE, MOOTHARIL HOUSE, VADAVUKODE (P.O),
VADAVUKOD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM
DISTRICT, PIN-682 310
4 M.V. VARGHESE
AGED 67 YEARS
S/O. VARKEY, MUPLASSERY HOUSE, VADAVUKODE P.O,
VADAVUKOD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM
DISTRICT, PIN-682 310
BY ADVS.
SRI.K.P.SREEKUMAR
SRI.P.J.PHILIP
RESPONDENTS/PLAINTIFFS 1 TO 5 - DEFENDANTS 1, 2 & 8, 9, 10:
1 KURIACHAN.K.K.
AGED 69 YEARS, S/O. LATE SHRI. KURIAKOSE K.P.,
KIZHAKKEDATH HOUSE, PANCODE, VADAVUKODE,
ERNAKULAM DISTRICT, PIN-682 310
2 NIKHIL JACOB,
S/O. SHRI. JACOB CHERIAN, AGED 29, NELLIKKARA
THEKKEDATH, VADAVUKODE,
ERNAKULAM DISTRICT, PIN-682 310
O.P(C).65/19 and Tr.P(C).76/19
2
3 MATHEW C.P.
S/O. SHRI PAULOSE, AGED 66, CHOVATTEL HOUSE,
VADAVUKODE, ERNAKULAM DISTRICT, PIN-682 310
4 PAILY PILLAI T.P.
S/O. LATE PAULOSE, AGED 77, THEKKEDATH HOUSE,
VADAVUKODE, ERNAKULAM DISTRICT-682 310
5 SOMAN P. PAUL
S/O. LATE SHRI. PAULOSE, AGED 67, PARANGETH HOUSE,
OPPOSITE MAHIMA THEATRE, THIRUVANKULAM, ERNAKULAM
DISTRICT, PIN-682 305
6 ST. MARY'S ORTHODOX SYRIAN CHURCH
VADAVUKODE, REPRESENTED BY VICAR, REV. FR. O.J.
JACOB, PIN-682 310.
7 REV. FR. O.J. JACOB,
VICAR, ST. MARY'S ORTHODOX SYRIAN CHURCH,
VADAVUKODE, RESIDING AT ONASSERIL HOUSE,
KADUNGAMANGALAM, THIRUVANKULAM, PIN-682 302
8 FR. KURIAKOSE THANNIKOTTE
VICAR, ST. MARY'S ORTHODOX SYRIAN CHURCH,
VADAVUCODE, PIN-682 310
9 AFROTH
AGED 22 , S/O. ABRAHAM, EDAYANAL HOUSE, VADAVUKODE,
VILLAGE, ERNAKULAM DISTRICT, PIN-682 310
10 ELDO K. PAUL
AGED 22, S/O. PAULOSE KUTTY, KEERIKATTIL HOUSE,
VADAVUKODE VILLAGE, ERNAKULAM DISTRICT, PIN-682 310
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SMT.SMITHA GEORGE
SRI.V.PHILIP MATHEW
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2019 ALONG
WITH Tr.P(C).76/19, THE COURT ON 18.03.2019 PASSED THE
FOLLOWING:
O.P(C).65/19 and Tr.P(C).76/19
3
COMMON JUDGMENT
Both transfer petition and the original petition are filed by defendants 3 and 5 to 7 in O.S.No.20 of 2013 pending before the Additional District Court-I, Ernakulam.
2. The suit was instituted by the plaintiffs, who are respondents 1 to 5, inter alia. for a declaration that the parishioners who comply with Article 4 and 7 of the 1934 Constitution of the Malankara Church and confess before the second defendant or his successors alone are entitled to participate in the parish assembly meeting of the first defendant Church, for rendition of accounts and for other ancillary reliefs.
3. According to the petitioners, the suit stood posted to 14.03.2018, along with I.A.No.4598 of 2015, which was an application for injunction. Plaintiffs filed documents, witness list and the defendants filed I.A. to summon the witness to produce the documents. The grievance of the petitioners is that, though an interlocutory application No.4598 of 2015 was posted along with the suit, when the trial proceedings were going on, court below took up I.A.No.4598 of 2015 without previous notice and started hearing it, rather than proceeding with the trial. Hence, defendants approached this Court in O.P.(C) 65/2019 for a direction to the court below to proceed with the trial in O.S.No.20 of 2013 in accordance with law.
O.P(C).65/19 and Tr.P(C).76/19 4
4. This Court, by order dated 10.01.2019 directed that the proceedings in I.A.No.4598 of 2013 shall stand deferred pending disposal of the original petition. Thereafter, by order dated 11.01.2019, the views of the District Judge regarding the time limit within which O.S.No.20 of 2013 could be disposed of was sought. The learned Additional District Judge by his report dated 14.01.2019 informed that if the parties co- operate, he can dispose of the matter within a month. Accordingly, court below was directed to take all possible endeavour to dispose of the suit as reported. The case was thereafter posted for reporting the compliance and to ascertain the progress made.
5. By communication dated 15.02.2019, learned Additional District Judge-I has informed that trial had commenced, 5 witnesses were examined, 24 documents were marked and remains for completing the trial and delivering the judgment. He sought extension of time up to 30.03.2019.
6. During the pendency of the original petition, petitioners filed Tr.P(C).No.76 of 2019. The grievance of the petitioners is that, they apprehend that, they may not get substantial justice from the court below. Few grounds were set up by them to contend that the procedure adopted by the court below and the conduct of the court below in the course of the proceedings, create a genuine apprehension in the mind of the parties that, they are not likely to get a free and fair trial and that, justice may O.P(C).65/19 and Tr.P(C).76/19 5 not be properly rendered. Another ground affirmed through an affidavit dated 7/3/2019 is that court is posting the case for day to day trial, not withstanding the pendency of the Transfer Petition.
7. Another grievance of to the petitioners is that they had filed I.A.No.3162 of 2018 to frame additional issues based on Annexure-A4 statement. Petition was disposed of stating that, appropriate inclusion and alternation of issues will be made at the appropriate time. However, even after the substantial progress in the trial, the above issues have not been framed nor the existing issues recasted. Yet another ground was that, though the suit was posted for trial along with I.A.No.1386 of 2015, the counsel for the plaintiffs was allowed to address the arguments on the I.A's which were adjourned along with the suit. It was contended that, on 30.01.2019 PW1 was cross examined by the counsel for the defendants. In the course of the cross examination, the Judge suggested answers to the witnesses, modified the questions put up by the counsel under the guise that the witness should understand the meaning of the question. Accordingly, it was dictated to the clerk of the Court, who is believed to have taken down it in long hand. It was further alleged that, on the same day, soon after the plaintiffs completed their cross examination, counsel for the defendants 2 and 8 and supporting plaintiffs were allowed to ask questions. Though the defendants raised objections, learned Judge did not record the said objections. Yet another ground projected by the O.P(C).65/19 and Tr.P(C).76/19 6 petitioners is that, in a connected suit relating to another Church, Honourable Judge had rendered judgment which amounts to prejudging the identical issues involved in this case. Hence, it was alleged that, first additional district judge following the same stand in this case also.
8. The remarks of learned Judge was called for. By his communication dated 22.02.2019, the learned Judge has traversed the various allegations, explained the comments and denied the allegations. According to the learned Judge, it was incorrect to say that during the examination of PW1, he suggested answers to the witness and modified the questions put by the learned defence counsel under the guise of witness understanding the questions. Learned Judge reiterated that, he has also taken care to ensure that answers were given by the witnesses after fully understanding the questions and nothing else were done in the case of PW1. It was also reiterated that, no objection was raised at the time of cross examination of the witness.
9. It was pointed out that, when PW1 entered the box, learned counsel for the defendants 3 to 7 stood up and started cross examining him. The fact that, there were some defendants supporting the plaintiffs and that they should cross examine the witness first was not brought to the notice of the learned Judge. Immediately, after the cross examination of D3 to D7, the counsel for D9 and D10 who were also contesting parties cross examined the witnesses. It was only thereafter learned counsel for O.P(C).65/19 and Tr.P(C).76/19 7 D1, D2 and D8 who were supporting the plaintiffs cross examined PW1. After identifying that they were supporting the plaintiffs, counsel for the above defendants was questioned as to why it was not brought to the notice of the Court. However, no serious objection was raised at that point of time.
10. I have heard learned senior counsel for the petitioners and learned senior counsel for the contesting respondents. After hearing both the learned senior counsel, I feel that the Court was proceeding with the trial, to complete the trial within the time limit. Regarding the specific allegations raised by the petitioners, learned Judge has given specific answers. It is pertinent to note that, he has referred that he was only ensuring that the witnesses, soon after properly understanding the question that was put to them, start answering it. Definitely, in a trial, the Judge is undertaking a very delicate exercise. He has to be active and vigilant, and cannot remain as a mute silent spectator to the process of cross examination. It is the duty of the Judge to ensure that trial progresses in a smooth manner. Ultimately every Judge has to ensure free and fair trial. It seems that, petitioners could not point out that any prejudice was caused to them with respect to any of the questions put to the witness and the answers elicited. Merely for the the fact that the Judge takes active role in the course of cross examination and as long as he remains as an effective and impartial umpire while discharging his O.P(C).65/19 and Tr.P(C).76/19 8 duties, this court will not interfere in the proceedings.
11. Regarding the cross examination of PW1 by the contesting defendants, it seems to have occurred due to an error. If that happened, definitely, it was incumbent on the defendants 3 to 7 to have pointed out it at the same moment and requested the Court to permit the supporting defendants to cross examine the witnesses first. It was not done. Other side also did not point it out. Further, it does not seem to have caused any prejudice to the parties.
12. Regarding the prejudging of issues, I am not inclined to appreciate it. Definitely, the Court decides on the facts of each case. Merely, on the ground that the Judge has taken a view in one case, does not mean that, he will not independently evaluate the facts and issue involved in another case and apply the law accordingly. If in an identical set of facts, Judge decides differently ,he is inconsistent and if in different set of facts, he takes a uniform decision, he is rigid. Essentially, in both cases, the Judge is liable to be accused of being prejudged.
13. Having considered these facts, I do not find any valid reason for ordering the transfer of the case. Hence, I am not inclined to allow the transfer petition. Since the purpose of O.P(C).65 of 2019 stands served, original petition is liable to be closed. However, court below shall ensure that the trial proceeds in a smooth and fair manner and the parties shall also co-operate with the Court and ensure that the Judge also O.P(C).65/19 and Tr.P(C).76/19 9 decides the matter in a fair and just manner. I am sure that, learned Judge will keep in mind, that justice will not only be done, but seem to be done.
Original petition is closed as above. Transfer petition is disposed of with the above observation.
Sd/-
SUNIL THOMAS JUDGE Sbna O.P(C).65/19 and Tr.P(C).76/19 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 20/2003 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 3 TO 7 DATED 04.10.2013 IN O.S. NO. 20/2013 EXHIBIT P3 TRUE OCPY OF THE I.A. NO. 1386/2015 IN O.S. NO. 20/2013 FILED BY THE PLAITIFFS.
EXHIBIT P4 TRUE COPY OF IA NO. 4598 OF 2015 IN O.S. NO. 20 OF 2013 BY PLAINTIFFS.
EXHIBIT P5 TRUE COPY OF ORDER DATED 14.3.2018 IN IA NO. 4598 OF 2015 OF OS NO. 20/2013 EXHIBIT P6 TRUE COPY OF THE LIST OF DOCUMENTS DATED 13.3.2018 FILED BY THE PLAINTIFFS IN O.S. NO. 20/2003 BY THE PLAINTIFFS.
EXHIBIT P7 TRUE COPY OF THE WITNESS LIST FILED IN O.S. NO. 20/2003 BY THE PLAINTIFFS DATED 24.3.2018 EXHIBIT P8 TRUE COPY OF ADDL. LIST OF DOCUMENTS DATED 24.3.2018 BY PLAINTIFFS IN OS NO. 20 OF 2003.
EXHIBIT P9 TRUE COPY OF THE ADDITIONAL LIST OF
WITNESSES FILED BY PLAINTIFFS .
EXHIBIT P10 TRUE COPY OF MEMO BY COUNSEL FOR PLAINTIFF
IN OS NO. 20 OF 2013 OF FIRST ADDL.
DISTRICT COURT, ERNAKULAM, DATED 3.11.2017
O.P(C).65/19 and Tr.P(C).76/19
11
EXHIBIT P11 TRUE COPY OF IA NO. 3161 OF 2018 BY
PETITIONERS.
EXHIBIT P12 CERTIFIED COPY OF ORDER DATED 24.11.2018 IN
OS NO. 20 OF 2003
EXHIBIT P13 CERTIFIED COPY OF ORDER DATED 24TH
NOVEMBER, 2018, IN IA NO. 3162 OF 2018
EXHIBIT P14 CERTIFIED COPY OF ORDER DATED 20TH
DECEMBER, 2018, IN OS. NO. 20/2003