Action Council, Mateer Memorial Church v. State Police Chief, State Police Headquarters; City Police Commissioner; Station House Officer, Museum Police Station; South Kerala Diocese represented by Most Rev. A. Dharmara Raj Rasalam; Others

``` 1 ``` W.A No.1048 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ``` WA NO.1048OF 2023 ``` ``` ARISING FROM THE INTERIM ORDER DATED 05.04.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP(C)NO.7687 OF 2023 APPELLANTS/PETITIONER: ``` ``` ACTION COUNCIL, MATEER MEMORIAL CHURCH, LMS COMPOUND, PALAYAM,THIRUVANANTHAPURAM, PIN – 695033 ``` ``` REPRESENTED BY ITS CONVENOR ``` ``` BY ADVS.NISHA GEORGE VISHNU B.KURUP GEORGE POONTHOTTAM (SR.) ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 THE STATE POLICE CHIEF, STATE POLICE HEADQUARTERS, VAZHUTHACAUDU, THIRUVANANTHAPURAM, PIN - 695010`** - **`2 THE CITY POLICE COMMISSIONER, THYCAUD,THIRUVANANTHAPURAM, PIN - 695034`** - **`3 THE STATION HOUSE OFFICER, MUSEUM POLICE STATION, THIRUVANANTHAPURAM, PIN - 695033`** - **`4 THE SOUTH KERALA DIOCESE REPRESENTED BY ITS BISHOP MOST. REV. A. DHARMARAJRASSALAM, AGED 66 YEARS, S/O.ALBERT, BISHOP'S HOUSE, L.M.S COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** ``` 2 ``` W.A No.1048 of 2023 - **`5 MOST REV. A.DHARMARAJ RASALAM, AGED 66 YEARS, S/O. ALBERT, BISHOP OF CHURCH OF SOUTH INDIA, SOUTH KERALA DIOCESE,BISHOPS HOUSE, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** - **`6 T.T. PRAVEEN, NOMINATED ADMINISTRATIVE SECRETARY, CHURCH OF SOUTH INDIA,SOUTH KERALA DIOCESE , BISHOPS HOUSE,LMS COMPOUND, PALAYAM,THIRUVANANTHAPURAM-, PIN - 695033`** - **`7 REV.VEDARAJ, PRESBYTER IN CHARGE, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM,THIRUVANANTHAPURAM, PIN - 695033`** - **`8 REV. C.SANTOSH KUMAR, PRESBYTER, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** - **`9 REV. VINCENT RESSALIAH PRESBYTER,MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** - **`10 REV.SAJI N STUWART PRESBYTER,MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033`** - **`11 ROSSMILAN DANIEL R.S ADMINISTRATIVE SECRETARY, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM,THIRUVANANTHAPURAM, PIN - 695033`** - **`12 THE DISTRICT COLLECTOR, DISTRICT COLLECTORATE, CIVIL STATION KUDAPPANANKKUNNU, THIRUVANANTHAPURAM, PIN - 695043`** - **`13 RAJEEV. T/, SEXTON MATEER MEMORIAL CSI CHURCH, S/O. THANKAN NADAR, PUTHUVAL PUTHEN VEEDU, CHENKOTTUKONAM, THUNDATHIL P.O, IROOPARA, THIRUVANANTHAPURAM - 695 584., PIN - 695584`** ``` 3 ``` W.A No.1048 of 2023 ``` 14 REV.D JACOB, AGED 65 YEARS,PRESENTLY WORKING AS PRESBYTER PERAYAM CSI CHURCH, S/O.DASAN, ANUGRAHA, PLANKALA, ATHAAZHAMANGALAM WARD, NEYYATTINKARA P O, ,THIRUVANANTHAPURAM-695 121. ``` ``` BY ADVS. GOVERNMENT PLEADER SRI.ARUN B.VARGHESE ``` ``` OTHER PRESENT: SRI T.K.SHAJAHAN - SR GOVERNMENT PLEADER ; SRI ARUN B.VARGHESE ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 4 ``` W.A No.1048 of 2023 ## **JUDGMENT** ## Anil K.Narendran, J. The appellant filed W.P.(C)No.7687 of 2023, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to provide sufficient police protection for the members of the M.M Church to offer prayers and to attend the Holy Communion in the MM Church without the same being obstructed by the respondents 4 to 11 and their henchmen/followers at M.M. Church (converted as M.M. CSI Cathedral) on all days when prayers are offered in the MM Church. The petitioners have also sought for a writ declaring that the members of the MM Church are entitled to attend the Holy Communion and to offer prayers inside the Church as the same is part of the fundamental right of the citizens as guaranteed under the Constitution of India. 2. On 05.04.2023, when that writ petition came up for admission, the learned Single Judge admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 3 and 12. Urgent notice by speed post was ordered to respondents 4 to 11, 13 and 14. 3. The interim relief sought in the writ petition was for an order directing respondents 1 to 3 to provide necessary protection ``` 5 ``` W.A No.1048 of 2023 for the members of the MM Church congregation to attend the Holy Communion and to offer prayers without the same being obstructed by respondents 4 to 11 and their followers and their family, pending disposal of this writ petition. The learned Single Judge declined the interim relief by the order dated 05.04.2023. Paragraphs 2, 3 and the last paragraph of that order read thus: “2. Police protection is sought to offer prayers and to attend the Holy Communion in the Mateer Memorial Church without any obstructions. The petitioner states that he is parishioner and he has a right to attend the Holy Communion and to offer prayers inside the Church premises. 3. The dispute primarily is about the administration of the Church. The contesting respondents would submit that the petitioner is not parishioner of the Church and police protection is sought only to create problems and law and order situation. When the contesting respondents controvert the very status of the petitioner as parishioner, it would not be proper to give police aid or assistance by way of interim measure. The interim relief sought for by the petitioners are hence declined.” 4. Feeling aggrieved, the appellant is before this Court in this writ appeal, invoking the provisions under Section 5 of the Kerala High Court Act 1958. 5. Along with this appeal, the appellant filed I.A No.1 of 2023 seeking an order to accept Annexures I to IV(a) as additional ``` 6 ``` W.A No.1048 of 2023 documents, invoking the provisions under Rule 154 of the Rules of the High Court of Kerala 1971. Respondents 4 to 11 have filed a counter affidavit, opposing the relief sought for in that interlocutory application. 6. Heard the learned senior counsel for the appellant, the learned Senior Government Pleader for respondents 1 to 3 and the learned counsel for respondents 4 to 11. 7. In **Laxmi Civil Engineering Services Pvt. Ltd. v. Kerala Water Authority [2023:KER:33995]** a Division Bench of this Court in which both of us were parties held that in an appeal filed under Section 5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence, such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single ``` 7 ``` W.A No.1048 of 2023 Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. Paragraphs 69 to 71 of the said decision read thus; “69. During the pendency of the writ appeals, the appellant in the respective writ appeals filed various interlocutory applications invoking the provisions under Rule 154 of the Rules of the High Court of Kerala, 1971, producing therewith various additional documents. In W.A.No.811 of 2023 appellant produced Annexure A1 additional document along with I.A.No.1 of 2023, at the time of filing of the writ appeal, which was followed by production of Annexures 2 to 33 as additional documents along with I.A.Nos.2 of 2023 to 14 of 2023. Similarly, in W.A.No.813 of 2023, in addition to Annexure 1 document produced along with I. A.No.1 of 2023, the appellant produced Annexures 2 to 8 along with I.A.No.2 of 2023 and thereafter Annexures 14 to 21 as additional documents along with I.A.Nos.2 of 2023 and 6 of 2023. 70. In **Baby Joseph and others v. Kerala State Electricity Board and others [2016 (4) KHC 251]** , a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, held that in an appeal filed under S.5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the ``` 8 ``` W.A No.1048 of 2023 provisions under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence, such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In that view of the matter, the Division Bench held that, in the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted to raise such a contention for the first time in the writ appeal, placing reliance on the additional documents produced along with an interlocutory application filed by them. 71. In view of the law laid down in the decision referred to supra, for admission of additional evidence in these writ appeals filed under Section 5 of the Kerala High Court Act, the appellant in the respective writ appeals has to establish the grounds necessary for such exercise, as contemplated under Order XLI, Rule 27 of the Code of Civil Procedure. The ``` 9 ``` W.A No.1048 of 2023 respective writ petitions should contain basic pleadings necessary for admission of such additional evidence and the appellant has to satisfy this Court that though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. In these intra - court appeals filed under S.5 of the Act, the appellant cannot be permitted to expand the scope of the writ petitions by raising grounds which were neither urged nor pressed into service before the learned Single Judge. Subject to the said observations, the interlocutory applications filed in both writ appeals to accept additional documents are allowed and those documents are marked as Annexures 1 to 33 in W.A.No.811 of 2023 and as Annexures 1 to 8 and 14 to 21 in W.A.No.813 of 2023.” 8. The judgment of this Court in **Laxmi Civil** **Engineering Services Pvt. Ltd. [2023:KER:33995]** was under challenge before the Apex Court in SLP (C)No.14950 of 2023, which ended in dismissal by the order of the Apex Court dated 24.07.2023. 9. The learned Senior Counsel for the appellant-petitioner would submit that, in view of the law laid down by this Court in **Laxmi Civil Engineering Services Pvt. Ltd. [2023:KER:33995]** in a writ appeal filed under Section 5 of the Kerala High Court Act, admission of additional evidence is ``` 10 ``` W.A No.1048 of 2023 permissible only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code of Civil Procedure. 10. The learned counsel for respondents 4 to 11 would submit that I.A No.1 of 2023 filed by the appellant seeking an order to accept Annexures I to IV(a) as additional documents is one filed under Rule 154 of the Rules of the High Court of Kerala 1971. In view of the law laid down by this Court in **Laxmi Civil** **Engineering Services Pvt. Ltd. [2023:KER:33995]** , admission of additional evidence invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure is permissible in a writ appeal filed under Section 5 of the Kerala High Court Act only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. 11. In view of the law laid down by this Court in **Laxmi Civil Engineering Services Pvt. Ltd. [2023:KER:33995]** we find that the appellant-petitioner cannot raise a challenge against the impugned order dated 05.04.2023 of the learned Single Judge, relying on the additional documents, i.e., Annexures I to IV(a) produced in the writ appeal, along with I.A No.1 of 2023. 12. In the result, this writ appeal fails on the above ground ``` 11 ``` W.A No.1048 of 2023 ## and the same is accordingly dismissed. It is made clear that this judgment will not stand in the way of the appellant filing an application seeking amendment of the pleadings in the writ petition and the learned Single Judge shall consider such application, in accordance with law, after considering the objections, if any, raised by the respondents. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV ``` 12 ``` W.A No.1048 of 2023 ## **`APPENDIX OF WA 1048/2023`** ## **`PETITIONER ANNEXURES`** - **`Annexure-I TRUE COPY OF THE FIRST 155 PAGES OF THE DIRECTORY OF THE MM CHURCH`** - **`Annexure-I(a) TRUE COPY OF THE PAGE 156 TO THE END OF THE DIRECTORY OF THE MM CHURCH.`** - **`Annexure-II TRUE COPY OF THE FAMILY REGISTER PART-I DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III COPY OF THE FIRST 123 PAGES OF THE FAMILY REGISTER PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III(a) COPY OF PAGES 124 TO 248 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER`** - **`Annexure-III(b) COPY OF PAGES 249 TO 373 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III(c) COPY OF PAGES 374 TO 403 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE.`** - **`Annexure-IV TRUE COPY OF THE FIRST 86 PAGES OF THE FAMILY REGISTER PART-III DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE.`** - **`Annexure-IV(a) TRUE COPY OF THE PAGES 87 TO 174 OF THE FAMILY REGISTER PART-III DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE.`**