Kerala High Court
St.George Jacobite Syrian Christian ... vs Fr.Abraham Karamel on 7 February, 2019
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940
OP(C).No. 45 of 2019
[AGAINST THE ORDER DATED 22.10.2018 IN I.A. No. 5233 OF 2018 ON
THE FILES OF THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM]
PETITIONERS/PLAINTIFFS:
1 ST.GEORGE JACOBITE SYRIAN CHRISTIAN CHURCH
PERIAMBRA IN MANAKKADU VILLAGE, THODUPUZHA TALUK,
REPRESENTED BY ITS TRUSTEE, C.V.JOHN, S/O.VARGHESE,
AGED 68 YEARS, CHAZHIPARAYIL HOUSE, PERIAMBRA.P.O.,
PUTHUYPPARIYARAM, MANAKKAD VILLAGE, THODUPUZHA TALUK.
2 C.V.JOHN,
AGED 68 YEARS
S/O.VARGHESE, CHAZHIPARAYIL HOUSE, PERIAMBRA.P.O.,
PUTHUPPARIYARAM, MANAKKAD VILLAGE, THODUPUZHA TALUK.
3 FR.SLEEBA VATTAVELIL,
VICAR, ST.GEORGE JACOBITE SYRIAN CHRISTIAN CHURCH,
PERIAMBRA.
4 YOHANNAN,
AGED 77 YEARS
S/O.OUSEPH, KARIKULATHIL HOUSE, PERIAMBRA.P.O.,
PUTHUPPARIYARAM, MANAKKAD VILLAGE, THODUPUZHA TALUK.
BY ADVS.
SRI.K.J.KURIACHAN
SRI.SUNIL JACOB
RESPONDENTS/DEFENDANTS 1 TO 13/IMPLEADED PLAINTIFFS:
1 FR.ABRAHAM KARAMEL
S/O.VARGHESE, KOOVAPPILLIL, KARAMEL HOUSE,
P.O.KARIKODE, (VIA) PERUVA, VAIKOM TALUK, KOTTAYAM
DISTRICT-686610.
2 P.V.RAJU,
S/O.VARGHESE, MANNATHACHERIL HOUSE, ARIKUZHA.P.O.,
THODUPUZHA-685584.
OP(C) No. 45 of 2019 2
3 MATHEW THOMAS,
S/O.THOMAS, MANDOLIL HOUSE, PUTHUPPARIYARAM.P.O.,
THODUPUZHA-685584
4 DR.THOMAS MAR ATHANASIUS,
S/O.FR.YOHANNAN, RESIDING AT MUVATTUPUZA ARAMANA,
MUVATTUPUZHA.P.O.,686661.
5 FR.BABU ABRAHAM,
CHIRAKKADAVIL, S/O.ABRAHAM, CHIRAKKADAVIL HOUSE,
KODASSERY.P.O., NEYARANGADI, CHALAKKUDY, THRISSUR
DISTRICT-680307.
6 K.J.MATHUKUTTY,
S/O.JOHN, KUNNUMEL HOUSE, PUTHUPPARIYARAM.P.O.,
THODUPUZHA-685584.
7 SUNIL MATHEW,
S/O.MATHEW, THEKKEKALAPURAYIL HOUSE,
PUTHUPPARIYARAM.P.O., THODUPUZHA-685584.
8 JAMES JOHN,
S/O.JOHN, NIRAPPETHOITTAM HOUSE,
PUTHUPPARIYARAM.P.O., THODUPUZHA-685584.
9 TOMY JOHN,
S/O.JOHN, THALIYAMCHIRA HOUSE, PUTHUPPARIYARAM.P.O.,
THODUPUZHA-685584.
10 M.SIMON,
S/O.MARKOSE, PUTHIYAPARAMBIL HOUSE,
PUTHUPPARIYARAM.P.O., THODUPUZHA-685584.
11 P.K.JAMES,
S/O.KURAKOSE, PUTTANIL HOUSE, PUTHUPPARIYARAM.P.O.,
THODUPUZHA-685584.
12 BOSE ABRAHAM,
S/O.ABRAHAM, THALIYAMCHIRA HOUSE,
PUTHUPPERIYARAM.P.O., MANAKKAD VILLAGE, THODUPUZHA
TALUK, IDUKKI DISTRICT-685584.
13 N.M.BABY
S/O.MARKOSE, MANAYATTU HOUSE, PERIAMBRA KARA,
PUTHUPPERIYARAM.P.O., MANAKKAD VILLAGE, THODUPUZHA
TALUK, IDUKKI DISTRICT-685584.
14 C.V.SAJI(WRONGLY TYPED AS C.V.SHAJI)
AGED 47 YEARS
S/O.VARGHESE, CHAZHIPARAYIL HOUSE, PERIAMBRA.P.O.,
PUTHUPPARIYARAM, MANAKKAD VILLAGE, THODUPUZHA TALUK-
OP(C) No. 45 of 2019 3
685584.
15 JAMES JOHN,
AGED 67 YEARS
S/O.ULAHANNAN, KARUMADATHIL HOUSE,
PUTHUPARARIYARAM.P.O., MANAKKAD VILLAGE, THODUPUZHA
TALUK, IDUKKI DISTRICT-685584.
16 SUNNY K THOMAS,
AGED 64 YEARS
S/O.THOMAS, KURUMANNIL HOUSE, PUTHUPPERIYARAM.P.O.,
MANAKKAD VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-
685584.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.BIBIN KUMAR
SRI.P.RAMAKRISHNAN
SMT.ASHA K.SHENOY
SMT.PREETHI RAMAKRISHNAN
SRI.C.ANIL KUMAR
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.PRATAP ABRAHAM VARGHESE
SRI.T.C.KRISHNA
SRI.THOMAS P.KURUVILLA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in a suit under Section 92 of the Code of Civil Procedure (the Code) are the petitioners in the original petition.
2. The dispute in the suit relates to a church over which rival claims are made by two factions known as Jacobite and Orthodox. In the course of the proceedings, the plaintiffs preferred an application for withdrawal of the suit without prejudice to the right of the plaintiffs to file a fresh suit on the same cause of action. Ext.P4 is the application OP(C) No. 45 of 2019 4 preferred by the plaintiffs in this connection. Being a suit under Section 92 of the Code, the court ordered a publication to be made for considering the said application. In response to the publication made by the court in this regard, two persons preferred Ext.P7 application stating that they are holding same interests as that of the plaintiffs in respect of the subject matter of the suit and that therefore, they may be permitted to continue the suit. The court below allowed Ext.P4 as also Ext.P7 applications by permitting the plaintiffs to withdraw from the suit without prejudice to their right to file a fresh suit and permitting the petitioners in Ext.P7 application to continue the suit as additional plaintiffs. Ext.P8 and Ext.P9 are the orders passed by the court on Ext.P4 and Ext.P7 applications. Ext.P9 order is under challenge in this original petition.
3. Heard the learned counsel for the petitioners as also the learned Senior Counsel for the respondents.
4. As noted, the case of the petitioners in Ext.P7 application, in essence, is that they maintain the same interest as that of the plaintiffs over the subject matter of the suit and that therefore, they may be permitted to continue the suit, if the plaintiffs do not wish to continue the suit. The case of the plaintiffs, on the other hand, is that Ext.P7 application is a collusive one and that the attempt of the petitioners therein is to enable the contesting defendants to obtain a decree as they wish.
OP(C) No. 45 of 2019 5
5. The learned counsel for the petitioners/plaintiffs submits that in a case of this nature, it was obligatory for the court to conduct an enquiry as to the interests attempted to be espoused by the parties who come forward to continue the suit. According to the learned counsel, if only the court finds that the interests of the plaintiffs and the parties who have come forward to continue the suit are identical, the court can grant the parties who have come forward to continue the suit leave to continue the suit. Otherwise, it was pointed out that, the decision in the suit would adversely affect the interests of the original plaintiffs, in the suit proposed by them.
6. I find force in the arguments advanced by the learned counsel for the petitioners. In matters like this, it is obligatory for the court to conduct an enquiry as to the identity of interests, before third parties are permitted to continue the representative action, as the possibility of unscrupulous litigants making attempts of this nature to enable the contesting defendants in the suit to obtain unfair advantages cannot be ruled out. Similar is the view taken by this Court in Ext.P10 judgment rendered in an identical case.
In the result, the original petition is allowed, Ext.P9 order is set aside and the court below is directed to consider Ext.P7 application afresh, after affording the parties an opportunity of hearing and if required, an opportunity to adduce evidence also. As the suit is of the year 2005, I also deem it appropriate to direct the court below to pass OP(C) No. 45 of 2019 6 orders on Ext.P7 application, within one month from the date of receipt of a copy of this judgement. Ordered accordingly. The parties are directed to appear before the court below on 18.02.2019.
Sd/-
P.B.SURESH KUMAR, JUDGE PKK OP(C) No. 45 of 2019 7 APPENDIX PETITIONERS EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.11/2009 FILED BY THE FIRST ADDL.DISTRICT COURT, ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATMENT FILED BY DEFENDANTS 1 TO 3 AND 6 TO 11.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH AND 5TH DEFENDANTS.
EXHIBIT P4 TRUE COPY OF IA.NO.1458/2018 DATED 19/03/2018 FILED BY THE PETITIONERS/PLAINTIFFS IN O.S.NO.11/2009.
EXHIBIT P5 TRUE COPY OF I.A.NO.3044/2018 DATED 30/05/20-18 FILED BY THE PETITIONERS/PLAINTIFFS UNDER ORDER 1 RULE 8 (4) CPC IN O.S.NO.11/2009.
EXHIBIT P6 TRUE COPY OF THE DRAFT PAPER PUBLICATION. EXHIBIT P7 TRUE COPY I.A.NO.5233/2018 FILED BY THE RESPONDENTS 15 AND 16.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 22/10/2018 PASSED IN I.A.NO.1458/2018 FILED BY THE PLAINTIFFS.
EXHIBIT P9 TRUE COPY OF ORDER DATED 22/10/2018 IN I.A.NO.5233/2018 FILED BY TWO MEMBERS OF THE ORTHODOX FACTION.
EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 9.7.2009 PASSED BY HON'BLE HIGH COURT IN WP(C)No. 11401 OF 2009.
//TRUE COPY// SD/-
P.A. TO JUDGE