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BASELIUS MAR THOMA MATHEWS & ORS.
_v._
PAULOSE MAR ATHANASIUS &. ORS.
_August_ 9, 1979
(V. R. KRISHNA IYER AND P. N. SHINGHAL, JJ.J
_Code_ _of_ _Civil Procedure-S._ _24(1)(b)-High_ _Court when_ _can_ _withdraw_
_suits from a lon'er court and itself try them._
A large number of suits filed by a religious community in the State were
pending over the years in several courts. Considering the prolongation and
C plurality of cases and the deleterious social consequences resulting from such
litigation the High Court and the State Government selected eight of the most
significant suits and constituted an Additional District Court to try them. After
the court had recorded evidence of numerous witnesses and before the commencement of arguments a petition under s. 24(1)(b) of the Code of Civil
Procedure was presented to the High Court for withdrawal of the suits ~o the
file of the High Court. This was dismissed by the High Court.
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On the qtiestion whether at this stage and in these circumstances the suibl
should be called up to the High Court and disposed of
Allowing the appeal,
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HELD: Advancement of public justice will be promoted by the High Court
itself at this stage, proceeding to hear the suits. All the suits should be trans~
fcrred to the High Court and, tried from the present stage, since expeditious
tern1ination is the driving force behind this order for transfer. [253H]
\Vhat is more important in a case of this kind is shortening the longevity
of these quasi-public litigations, reducing the enormous expenditure involved
for both si<les and entrusting the first determination to the highest deck of
justice in the State. The case involves questions of public moment which are
likely to spiral~p to the Supreme Court on appeal. In this jurisdiction, the
approach has to be pragmatic, not theoretic, without whittling down the basic3
of law bearing on transfer of cases. Where a large number of people are
affected and the fate of a few hundred suits and a thousand churches are
involved, the elimination of some years and duplication of bearings and full
argun1ents at the commanding height of the High Court is a wise measure, all
things considered. The social savings of abbreviation of law's delays ar~
important to social justice. [253B, D, G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2222 of
1979.
Appeal by Special Leave from Judgment and Order dated
4-7-1979 of the Kerala High Court in CMP (Transfer) No. 5069/79.
_F._ S. _Narimitn_ and _K._ _R._ _Nambiar_ for the Appellants.
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KRISHNA IYER, J.-The Malankara Sa,bha, on the Kerala Coast, **B**
is an ancient Church with a legendary past, and has a phenomenal
following of a million Md a half Orthodox Syrian Christians with
over a thousand parish churches to nourish the spiritual life of the
flock. Schismatic pathology which ordinarily afllicts secular institutions struck this ecclesiastical organisation resulting, _inter_ _alia_ in
#### bitter litigative battles of several years standing. Some 250 suits, c
manifesting this litigious syndrome, are stated to be pending in the
several courts of Kerala. The members of this chnrch are not new
to forensic struggles and have, on earlier occasions, fought right up
to the Supreme Court. The prolongation of such plurality of court
cases in a community at once influential, important and . numerous,
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has many deleterious social consequences and it was wise of the
High Court and. the Government of Kerala to have thougl1t in terms
of selecting eight of the most significant suits out of the spate of
cases and constituting an 'Additional District Court' specially for disposal of these socially sensitive cases. Thanks to this imaginative
measure the eight suits which were made over to the specially
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appointed District Judge made headway steadily forwards. An
Additional District Judge, by name, Shri N. Vishwanath Iyer was
first put in charge of these suits and he examined several witnesses.
When he was transferred from Ernakulam, which is the venne of
the District Court, another judicial officer by name, Shri S. Ananthasubramanilll1 was posted in his place. The latter kept up the pro
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gress of the case and actually finished recording the entire evidence.
Hardly had the arguments commenced when an application for
transfer was made to the High Court under Section 24 (1) of the
Civil Procedure Code praying for making over the suits to some other
court for disposal. Certain aspersions suggestive of bias were made
therein, but the High Court (Mr. Justice Bhaskaran) eventually &nd **G**
Tightly dismissed the petition. A petition to appeal by special leave
was filed to this Court but, after making some submissions, counsel
withdrew that petition when we indicated our reaction. Another
petition had been filed under Section 24(1)(b) of the Code for
withdrawal. of the suits to the file of the High Court, which was heard
by another Judge of the High Court (Mr. Justice Khalid). The **H**
learned Judge dismissed that petition, and against that order the
present petition for special leave to appeal has been moved.
B. M. T. MATHEWS & ORS. _V._ **P.** M. ATHANASIUS & ORS. 251
_(Krishna Iyer,_ _!.)_
_**V.**_ _**M.**_ _Tarkunde,_ _P._ _P._ _John_ and _N._ _Sudhakaran_ for **RR** 18 and 20.
The Judgment of the Court was delivered by
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252 SVi'REME COURT REPORTS [1980] 1 s.c.R.
We are deeply disturbed that a11 important community in the
State of Kerala should be locked in litigatio11 for long years and if
amity can be restored by an early end of the crop of cases which
drive a wedge between sections of the same community it is 'a consummation devoutly to be wished'. But all that courts can do is to
adjudicate cases with the utmost speed and that has apparently been
attempted successfully in the present instance. The short point is
whether, at this stage and in these circumstances, the eight suits concerned should be called up to the High Court and disposed of.
The learned Judge considered the various grounds urged before
him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because 'a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court, nor was the circumstace that important and intricate questions of law were involved
sufficient for snch transfer in its view. A massive volume of oral
evidence had been recorded by the specially appointed Judge and so
the High Court felt that it would be "proper for the court that recorded
the evidence to hear the arguments also". We are not inclined to
fault the learned Judge in the view he has adopted. But there are
many buts to any general proposition.
Shri Tarkunde appearing for the respondents, stressed before us, as
an additional consideration that if the cas~s were withdrawn to the
High Court and tried, as was likely by a Division Bench of that
court his clients might lose a statutory right of appeal and would
have to depend upon the chancy jurisdiction under Article 136 of
the Constitution. A single appeal, _as_ _of_ _right,_ would be taken away,
was his apprehension.
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Shri N:u:-iman, appearing for the petitooners, having prudently
though belatedly withdrawn the Special Leave Petition which made
reference to bia8, focussed on the advantage both sides would derive
- by an early determination of the litigation at the High Court level.
He also su bmittcd that there was hardly any doubt that questions of
law of considerable public importance were involved and an appeal
to the Snpreme Court, as of right, both under Article 13 3 and Section 110 C.P.C., was a certainty. He further emphasised that Section 24(1) (b) would become 'ai dead letter if Shri Tarkunde's objection that an automatic right of appeal to the Supreme Court would
be imperilled in the event of the High Court withdrawing suits, were
to be accepted.
We agree with the learned Judge of the High Court that some
,of the grounds put forward for withdraw! of the suits to the High
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B. M. T. MATHEWS & ORS. _V._ P. M. ATHANASIUS & ORS. 253
_(Kr;shna Iyer,_ _!.)_
Court were without merit an~ were rightly rejected. But we are not
inclined to exaggerate the improtance of the demeanour of witnesses
observed by the trial judge, especially when years have lapsed, heaps
of evidence have been recorded and judicial memory with hyper psychic sensitivity is more in the books than in the wear and tear o! life.
What weighs with us is the importance of shortening the longevity
of these quasi-public litigations, reducing the enormous expenditures
involved for both sides and entrusting even the first determination,
now that all evidence has been recorded, to the highest deck of Justice in the State.
It is indubitable that after the decision by the District Court appeals will inevitably be carried to the High Court. It is predictably
reasonable to expect, from all that has been presented to us and all
that we have been able to gather from the records, that the case involves questions of public moment and are likely to spiral up to the
Snpreme Court on final appeal. In this jurisdiction, the approach
has to be pragmatic, not theoretic, without whittling down the basics
of Jaw bearing on transfer of cases.
We do not for a moment countenance the suggestion that the
district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him
with unlimited jurisdiction and the High Court having committed:
these cases to his seisin. Hints of bias are also out of bounds, as
we have indicated. If these suits at this stage of early arguments
which have yet to begun effectively, are transferred to the High Court
a spell of few years in the stre,ssful life of the litigation will be
saved. Taking copies of a bunch of decrees by the District Court,
followed by preliminaries and filing of appeals, service of notices
and other ripening processes, may co11~3ume considerable time and
money. And then the High Court would begin _de novo_ the entire
arguments and appreciation of the whole range of facts and law as
in first appeal it is bound to do in a ca.se of this type. Where lakhs
of peopl'e arc excitedly affected by the ultimate decision and the
fate of a few hundred suits and a thousand churches is to be settled
by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the
High Court is a wise measure, all things considered. The social
savings of abbreviation of laws' delays are important to social justice.
We do not tarry to dilate on the many dimensions to this transfer H
petition except to state that we feel the advancement of public
justice will be promoted by the High Court itself at this stage, pro
254 SUPREME COURT REPORTS [1980] 1 S.C.R.
**A** ceeding to hear the suits. We, therefore, direct that all the suits
covered by the transfer petition be transferred to the High Court
and tried from the present stage post-haste, since expeditious termination is the driving force behind this order for transfer.
A last thought before we piirt with this case. When sacerdotal
**B** institutiorul **are** litigious fights double disaster threatens society because of the souls of the votaries not only suffer spiritual neglect but
are maddened by the passions unleashed by forensic disputation. We
leave this _lis_ with the deep wish that the High Court will give the
suits high priority in its agenda of postings and finish this unhappy
chapter, if persuasively possible, by both sides burying the hatchet,
- **C** abjuring litigative pugilistics and restoring a _modus_ _vivendi_ which
will heal old wounds, bring new harmony and please the Spirit of
Christ. That is the highest justice the several lakhs of good Christians, now Jocked in Jong years of suits and appeals, sincerely hunger
for.
**D** We allow the appeal as indicated above.
**P.B.R.** _Appeal_ _allowed._
