Kerala High Court
St.Mary'S Orthodox Syrian (Jacobite) ... vs K.C.Yohannan on 22 January, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH Court OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
RFA.No.16 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 17/2010 DATED 30-07-2019 OF I
ADDITIONAL DISTRICT Court, ERNAKULAM
APPELLANT/S:
1 ST.MARY'S ORTHODOX SYRIAN (JACOBITE) Church,
VETTITHARA, RAMAMANGALAM P.O.,
MANEED VILLAGE, MUVATTUPUZHA TALUK.
2 FR. JACOB KATTUPADATHU,
AGED 44 YEARS
S/O. VARGHESE, KATTUPADATHU HOUSE, ,
MANEED VILLAGE, MUVATTUPUZHA TALUK.
3 P.A. WILSON,
AGED 42 YEARS
S/O. ABRAHAM, PARAPUZHAYIL HOUSE,
RAMAMANGALAM P.O., MUVATTUPUZHA,
VIA, MANEED VILLAGE.
4 V.M. MATHEW,
AGED 64 YEARS
S/O. MARKOSE, VADATHUPALLATHU HOUSE,
NEELANAL HOUSE, RAMAMANGALAM P.O.,
MUVATTUPUZHA VIA, MANEED VILLAGE.
5 V.J. JOSEPH,
AGED 61 YEARS
S/O. JACOB, VACKANAL HOUSE, EZHAKKARANAD SOUTH P.O.,
MANEED VILLAGE, PUTHENCRUZ VIA, MUVATTUPUZHA TALUK.
6 V.M. ALIAS,
AGED 58 YEARS
S/O. MATHEW, VADATH HOUSE, MANEED VILLAGE,
MUVATTUPUZHA TALUK.
7 BIJI N. VARGHESE,
AGED 35 YEARS
S/O. VARGHESE, NEELANAL HOUSE,
MANEED VILLAGE, MUVATTUPUZHA TALUK.
8 SAJI ABRAHAM,
S/O. ABRAHAM, PARAPPUZHA HOUSE, VETTITHARA,
2
RFA.No.16 OF 2020
MANEED VILLAGE, MUVATTUPUZHA TALUK.
9 BINU KURIAN,
PARAYIL HOUSE, EZHAKKARANADU SOUTH P.O.,
MANEED VILLAGE, MUVATTUPUZHA TALUK.
BY ADV. SRI.SAJI VARGHESE
RESPONDENT/S:
1 K.C.YOHANNAN,
AGED 66, S/O. CHACKO, KOLLIYATTIL HOUSE,
EZHAKKARANAD SOUTH P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
2 N.M. MATHEW,
AGED 44, S/O. MATHAI, NEELANAL HOUSE, PIRAVOM P.O.,
PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN-686664.
3 M.P. ABRAHAM,
AGED 62, S/O. PAILY, MANGALASSERIL HOUSE,
EZHAKKARANAD SOUTH P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, TALUK-686664.
4 SEMON GEORGE,
AGED 55, S/O. SEEMON, PADINJAREKAKKANATTIL HOUSE,
EZHAKKARANADU SOUTH P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
5 A.J. ALIAS,
AGED 47, S/O. JACOB, ATHITHOTTATHIL HOUSE,
EZHAKKARANADU SOUTH P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
6 K.C. GEORGE,
AGED 69, S/O. CHACKO, KALLIATTIL HOUSE,
EZHAKKARANADU SOUTH P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
7 K.M. KURIAN,
AGED 58, S/O. MATHEW, KARAPPILLIL HOUSE, VETTITHARA
KARA, RAMAMANGALAM P.O., MANEED VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
8 K.V. JACOB,
AGED 54, S/O. VARKEY, KARATTEVADATHU HOUSE,
VETTITHARA, RAMAMANGALAM P.O., EZHAKKARANADU SOUTH
P.O., MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN-
686664.
3
RFA.No.16 OF 2020
9 BABU,
AGED 48, S/O. MATHAI, KURUTHALAYIL HOUSE,
MAMALASSERY P.O., RAMAMANGALAM VILLAGE,
MUVATTUPUZHA TALUK, PIN-686664.
10 FR. JOY THOMAS,
AGED 35, S/O. M.V. THOMAS, MUTTATHUKATTIL HOUSE,
VICAR, ST. MARY'S ORTHODOX SYRIAN Church,
VETTITHARA, PIN-686664.
11 FR. BINOY JOHN,
S/O. YOHANNAN, PATTA KUNNEL HOUSE, KALAMBOOR P.O.,
PIRAVOM, VICAR, ST. MARY'S ORTHODOX SYRIAN Church,
VETTITHARA, MANEED VILLAGE, MUVATTUPUZHA TALUK,
PIN-686664.
R1-2, R4-10 BY ADV. SRI.S.SREEKUMAR (SR.)
R1-2, R4-10 BY ADV. SRI.P.MARTIN JOSE
R1-2, R4-10 BY ADV. SRI.P.PRIJITH
R1-2, R4-10 BY ADV. SRI.THOMAS P.KURUVILLA
R1-2, R4-10 BY ADV. SRI.MANJUNATH MENON
R1-2, R4-10 BY ADV. SRI.AJAY BEN JOSE
R1-2, R4-10 BY ADV. SMT.HANI P.NAIR
R1-2, R4-10 BY ADV. SHRI.HARIKRISHNAN S.
OTHER PRESENT:
SRI.P.MARTIN JOSE- CAVEATOR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2020, THE Court ON THE SAME DAY DELIVERED THE FOLLOWING:
4
RFA.No.16 OF 2020
JUDGMENT
Dated this the 22nd day of January 2020 Defendants 1 to 9 in O.S.No. 17/2010 before the First Additional District Court, Ernakulam are the appellants in this appeal.
2. The appellants impugn the judgment and the decree of the aforesaid Court as per which, it has been declared that the first defendant Church, which is St.Mary's Orthodox Syrian Church, Vettithara, its cemetery and properties are to be governed, managed and administered under the 1934 Constitution of the Malankara Orthodox Syrian Church (1934 Constitution for short). Pertinently, the appellants concede that this declaration cannot be assailed in view of the judgments of the Hon'ble Supreme Court in Most Rev.P.M.A Metropolitan and Ors Vs. Moran Marthoma and others (AIR 1995 SC 2001) and in K.S Varghese Vs. St.Peter's & Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)]; but the contention impelled 5 RFA.No.16 OF 2020 by them, is that the suit itself is not maintainable under the provisions of Section 92 of the Code of Civil Procedure (CPC) and that, the Court below has erred in granting the plaintiffs leave under it, even then the reliefs sought are personal and individual in nature. The appellants, therefore, pray that the impugned judgment and decree be set aside.
3. Sri.K.Ramkumar, learned Senior counsel, instructed by Sri. Saji Varghese, learned counsel for the appellants, began his submissions by saying that the suit has been filed by the plaintiffs, in representative capacity, after seeking leave under Order I Rule 8 of the CPC and that they have also obtained sanction of the Court under Section.92 thereof. The learned Senior Counsel states that the Court below ought not to have granted leave under Section.92 of the CPC, since, going by the prayers in the suit, they are personal in nature and therefore, contrary to the declaration of law by the Hon'ble Supreme Court in Swamy Paramanath Saraswathy & anr Vs. Ramji Thripati and anr [1974 6 RFA.No.16 OF 2020 (2)SCC 695]. The learned Senior Counsel, thus prays that this appeal be allowed and the impugned judgment and decree be set aside.
4. In response to the afore contentions, Sri S. Sreekumar, learned Senior Counsel for the appellants, instructed by Sri Martin Jose, learned counsel appearing for the respondents/Caveators, submitted that the contentions of Sri.K.Ramkumar are not germane to this case because, the fact that the Church is to be governed and managed by the 1934 Constitution is now beyond doubt or contest, in view of the conclusions arrived by the Hon'ble Supreme Court in Rev.P.M.A Metropolitan (Supra) and K.S.Varghese (Supra); and therefore that the impugned judgment and decree cannot be found in any manner to be in error. He says that, even when the reliefs granted by the Court below are carefully examined, it has been confined to the parameters stipulated by the Hon'ble Supreme Court and that the said Court has only permitted the Church in question to be governed exclusively under the 1934 Constitution. He, therefore, reiteratively submits 7 RFA.No.16 OF 2020 that, the technical objections now raised by Sri.K.Ramkumar, are not pertinent or relevant; adding that, in any event of the matter, the reliefs in the suit certainly justify grant of leave by the Court below. He thus prays that this appeal be dismissed.
5. I have considered the afore rival submissions and also examined the materials and documents available on record.
6. As is clear from the afore narrative, the appellants do not content that the directions in the judgment and decree are in error or that it is contrary to the mandate of the Hon'ble Supreme Court. The only contention impelled by Sri.K.Ramkumar, learned Senior Counsel, is that grant of leave by the Court below under Section 92 of the CPC is in error, pointing out that the reliefs sought for by the plaintiffs are purely personal in nature and therefore, that the suit itself is not maintainable.
7. When I assess the submissions above, it is necessary that an examination of the nature of 8 RFA.No.16 OF 2020 reliefs sought for by the plaintiffs be made, which is as under:-
i. Declaration that D1 Church 'St.Mary's Orthodox Syrian Church Vettithara', its cemetery and its properties such as St.Mary's English Medium School, St. George Shrine and St. Gregorious Shrine are governed, managed and administered under 1934 Constitution. ii. A Decree of declaration that the parishoners who does not give written allegiance to 1934 constitution before the Vicar appointed under 1934 Constitution have no right to continue as parishioners of the 1 st defendant Church or its chapels.
iii. Appoint an Advocate Commissioner to convene pothuyogam of the 1st defendant Church and conduct election of lay trustee and members of managing committee in accordance with 1934 constitution. iv. A decree of permanent prohibitory injunction restraining the defendants 2 to 4 their men or agents or anybody claiming under them from bringing any religious dignitaries/vicar/priest to 1st defendant 'St. Mary's Orthodox Syrian Church Vettithara' for performing religious functions/duties other than a vicar/priest appointed by Metropolitan, Kandanadu Diocese East under 1934 Constitution.
v. A decree of permanent prohibitory injunction restraining the defendant 2 to 4 their men, agent or anybody claiming under them from obstructing the 10 th plaintiff or his successor or any other vicar appointed under 1934 Constitution by Diocesan Metropolitan from discharging the duties as vicar as of the 1 st defendant Church.
8. On the bedrock of these prayers, the Court below has decreed the suit in the following manner:
(1) It is declared that D1 Church (St. Mary's Orthodox Syrian Church, Vettithara) its cemetery and properties such as St. Mary's English Medium School, St. George Shrine and St. Gregorious Shrine are to be governed, managed and administered under the 1934Constitution. It is also declared that only parishioners who satisfy the eligibility criterion 9 RFA.No.16 OF 2020 under the 1934 Constitution can get their names enrolled in the concerned parish register.
(2)A pothuyogam of the Church is to be convened and an election of the members of the managing committee and lay trustees is to be conducted in accordance with the 1934 Constitution.
(3)The plaintiffs shall be at liberty to get the entire election process done by a commissioner appointed by this Court. (4)Defendents 2 to 4 their men, agents or anybody claiming under them are restrained by a perpetual injunction from bringing any religious dignitaries/vicars/priests to the 1 st defendant St.Mary's Orthodox Syrian Church, Vettithara for performing religious functions/duties other than those appointed by Metropolitan of Kandanadu East Diocese under the 1934 Constitution.
(5) Defendents 2 to 4 their men, agents or anybody claiming under them are also restrained by a perpetual injunction from obstructing the 10th plaintiff, his successors or any other vicars appointed under the 1934 constitution by Diocesan Metropolitan from discharging their duties as Vicar/vicars of the 1st defendant Church. (6) The contesting defendants shall pay the costs of the suit to the plaintiffs.
9. As is ineluctable from the afore prayers sought by the plaintiffs extracted above, prayers 1, 2 and 3 relate directly to the management and control of the Church in question and seeks a declaration that it be done only in accordance with the 1934 Constitution. There reliefs are certainly not personal in nature and leaves us with prayers 4 and 5, whereby, a decree of permanent injunction has been sought against defendants 2 to 4 from bringing any religious Dignitaries/Vicar/Priest to the Church in question and from obstructing the 10th plaintiff 10 RFA.No.16 OF 2020 or his successor or any other Vicar appointed under the 1934 Constitution by the Diocesan Metropolitan.
10. At first blush, it may appear that the above are personal reliefs sought against the defendants and in favour of the 10th plaintiff; but what is important is to see the manner in which these operate in the context of the declaration of law by Hon'ble Supreme Court in Rev.P.M.A Metropolitan (Supra) and KS Varghese (Supra). When one examines Section 92 of the CPC, it is without doubt that the jurisdiction of the Court can be invoked under it with respect to the alleged breach of any express or constructive trust created for a public purpose; for a charitable or religious nature; or where the direction of the Court is deemed necessary for the administration of any such Trust. In the case at hand, the primary prayers sought for by the plaintiffs are with respect to the administration, control and management of the Church in question and that too, based on the declarations of law by the Hon'ble Supreme Court in the afore two judgments, and it then becomes perspicuous that 11 RFA.No.16 OF 2020 prayers 4 and 5 are direct and corollary of the same, so as to effectively manage the Church in terms of the 1934 Constitution.
11. In fact, I notice that this issue has been considered by the Court below in great detail, framing it as an issue, which is available from Paragraph 17 of the said judgment. The Court below has found that since the Hon'ble Supreme Court has declared the law unequivocally that only the 1934 Constitution will apply to the Church in question, the plaintiffs are entitled to seek, as a necessary corollary, convening of the general body for the purpose of elections to the Managing Committee of the Church, and further that no other person who does not swear allegiance to the 1934 Constitution be allowed to be appointed as members to such Committee or to function as a Vicar or as a Priest. I find that the course adopted by the Court below is completely justified, particularly going by the observations and conclusions of the Hon'ble Supreme Court in paragraphs 116 to 120 of K.S Varghese (Supra), which relate to the manner in which the 12 RFA.No.16 OF 2020 1934 Constitution operates; and consequently that the grant of leave under Section 92 of the CPC cannot be found to be, in any manner, untenable or contrary to law.
In the afore circumstances, I find no reason to entertain this appeal on this issue, especially guided by the declarations of law by the Hon'ble Supreme Court in Rev.P.M.A. Metropolitan (Supra) and K.S Varghese (Supra); and consequently dismiss this appeal, however, without making any order as to costs, taking note of the singular factual circumstances involved.
DEVAN RAMACHANDRAN JUDGE SM