Fr. Binoy Varghese v. Salem Marthamariyam (St. Mary's) Orthodox Church, Kadavoor Village and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **OP(C).No.859 OF 2020** **ORDER IN OS 361/2019 OF MUNSIFF'S COURT, KOTHAMANGALAM** ## **PETITIONER/PLAINTIFF:** **FR. BINOY VARGHESE, AGED 48 YEARS S/O.VARGHESE, PARAYATHU HOUSE, KOLENCHERY.P.O, ELAMKULAM KARA, AYKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK - PIN-682311** **SRI.S.SREEKUMAR (SR.) SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS SRI.HARIMOHAN** ## **RESPONDENTS/DEFENDANTS 1 T 4:** - **1 SALEM MARTHAMARIYAM (ST.MARYS) ORTHODOX CHURCH, CHATHAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, REPRESENTED BY ITS TRUSTEE SR.BLESSON ELDHO, AGED ABOUT 40 YEARS, S/O.ELDHOSE, NELLIYANIKKUZHIYIL HOUSE, CHATHAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, PIN-686671** - **2 FR.KURIAKOSE PUTHUSSERIL, AGED 55 YEARS FATHER'S NAME NOT KNOWN, PUTHUSSERIL HOUSE, KARIMATTOM KARA, ERANELLOR VILLAGE, MUVATTUPUZHA TALUK, PIN-686673** - **3 BINU ABRAHAM, AGED 35 YEARS,S/O. ABRAHAM, RESIDING AT UMMANAPUTHENPURAYIL HOUSE, CHATTAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, PIN-686671** - **4 PAUL VARGHESE, AGED 50 YEARS S/O.VARGHESE, RESIDING AT VELLAMKANDATHIL HOUSE, CHATTAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, PIN-686671** **R1 BY ADVS. SRI.MANU GEORGE KURUVILLA SRI.N.RAYNOLD FERNANDEZ R2-4 BY ADV. SRI.P.V.ELIAS** **THIS OP(CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C).No.859 OF 2020 2 ## **JUDGMENT** This original petition has been filed by the plaintiff in O.S.No.361/2019 on the files of the Munsiff's Court, Kothamangalam, impugning the order issued by the said Court, dated 18.05.2020, adjudicating the issue as to whether the suit is maintainable in the light of the declarations of the Hon'ble Supreme Court in **K.S.Varghese and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church and others** [2017 (3) KLT 261]; and then proceeded to dismiss the suit itself. 2. Sri.S.Sreekumar, learned senior counsel instructed by Sri.Roshen D.Alexander, appearing for the petitioner/plaintiff, made detailed arguments as to why the findings of the Trial Court in the impugned order is unsustainable in law, placing large amount of reliance on the judgments of the Hon'ble Supreme Court in **P.M.A.Metropolitan v. Moran Marthoma** (AIR 1995 SC 2001) and **K.S.Varghese** (supra); and contending that, therefore, the preliminary issue could not have been decided by the Trial Court in the manner as it has now done, nor could it have dismissed the suit for such reason. 3. The learned counsel also brought to my notice that his OP(C).No.859 OF 2020 3 client has been constrained to file this Original Petition against the order impugned, since it is not a judgment in the suit but styled as an “order” on a singular issue; though, he affirms, that none of the parties wanted an adjudication on this issue alone at the first instance. He says that, in fact, the learned Judge had framed issues in the suit under Order XIV Rule 1 of the Code of Civil Procedure (CPC), namely, (a) if the suit is covered by the decision of the Hon'ble Supreme Court in **K.S.Varghese** (supra); and (b) if so, what decision is to be taken in compliance of the directions of the Hon'ble Supreme Court in Miscellaneous Application No.2554-2555 of 2019 in Civil Appeal No.7115-7116 of 2019; but the impugned order does not discuss them at all, much less even mention them, thus proceeding to dismiss the suit itself through the impugned order. The learned senior counsel vehemently submitted that the impugned order can, therefore, be neither treated as an “order” or as a “judgment”; and consequently, that his client was at loss at deciding how to assail the said order, except by filing this Original Petition under Article 227 of the Constitution of India. He thus prays that the impugned order be set aside. 4. Sri.Raynold Fernandez, learned counsel for the 1[st] OP(C).No.859 OF 2020 4 respondent made similar submissions as afore in support of the petitioner and adopted all the submissions of the learned senior counsel Sri.S.Sreekumar and prayed that this original petition be allowed. 5. In response to the afore contentions of the learned senior counsel, Sri.P.V.Elias, learned counsel appearing for respondents 2 to 4 submitted that there is no error committed by the learned Munsiff in issuing the impugned order because he was fully bound by the judgment of the Hon'ble Supreme Court in **K.S.Varghese** (supra) and by the subsequent directions of the said Court in **Fr.Issac Mattammel Cor Episcopa v. St.Mary's Orthodox Syrian Church** [2019 (4) KLT (SC) 1]. He submitted that in view of the affirmative directions of the Hon'ble Supreme Court in **Fr.Issac Mattammel** (supra), the learned Munsiff's Court could have done nothing more than to dismiss the suit, particularly when all the issues raised therein can only be answered against the plaintiff, going by the binding declarations of law made by the Hon'ble Supreme Court under Article 141 of the Constitution of India. 6. Sri.P.V.Elias, learned counsel further submitted that OP(C).No.859 OF 2020 5 even though the impugned order is styled as an “order”, if this Court finds it to be actually a “judgment”, then this Original Petition will become non-maintainable, since the proper remedy for the petitioner/plaintiff will be to file a Regular First Appeal. He asserted that the learned Munsiff has decided the suit finally and has, in fact, so said in the last paragraph of the order, concluding that the suit is not deserving to be maintained in the light of the judgment of the Hon'ble Supreme Court in **K.S.Varghese** (supra), thus dismissing it. He says that it is, therefore, obvious from the tenor of the impugned order, that it can only be construed as a judgment and not as an “order” and consequently, that this Court must dismiss this original petition as being not maintainable. 7. Before I venture into the assessment of the merits of the contents of the impugned order, I must record that, through the said order, the learned Judge had decided the issue as to whether the suit is maintainable and then proceeded to dismiss the suit itself. Pertinently, the records do not show that a further judgment in the suit had been delivered at any point of time thereafter, nor is there any indication that the decree had been drafted. I, therefore, asked the Registry of this Court to verify this and also as to whether OP(C).No.859 OF 2020 6 the suit has been shown to be disposed of on its merits. The information that this Court has now received from the Registry is that the issues were framed in the suit but that the learned Judge thought it fit to dispose of the suit itself through the impugned order in the light of the judgment of the Hon'ble Supreme Court in **K.S.Varghese** (supra); and that in the Suits Register, the suit has been shown to be dismissed, however, without drafting any resultant decree. 8. When I see that the impugned order has been issued by the Trial Court in the afore manner, which certainly cannot find the approval of this Court, I do not deem it necessary or appropriate to consider the merits of the contents of the said order, since even if I am to do so, this Court may have no other option but to set it aside, directing the learned Munsiff to dispose of the suit as per law and procedure, as is sanctioned. 9. As I have already said above, through the impugned order, the learned Munsiff has dismissed the suit, however, without discussing therein the issues framed in the suit and without indicating as to whether it was taken to trial or testimony of witnesses were recorded. The order does not even whisper that evidence was taken or that the parties have OP(C).No.859 OF 2020 7 said that no such evidence was necessary in view of the declarations of the Hon'ble Supreme Court, but it still proceeds to dispose of the suit itself, apparently on one of the issues, but without mentioning any of the others. Of course, the learned Munsiff would certainly be justified, under the provisions of Order XX Rules 5 of the CPC, to dispose of the suit on one issue, if it is found that it would be sufficient for a final decision in the said suit; but this would not justify the said Court from not even indicating the issues framed in the suit and even without mentioning whether evidence was led. 10. To reiterate, I see that the impugned order is not styled as a “judgment” nor does it mention anything regarding the issues framed or the evidence and testimony marked and recorded, if such a procedure had been followed. Obviously, therefore, I cannot accede to the submissions of Sri.P.V.Elias that I must construe this order to be a “judgment” and then dismiss this Original Petition, since only a Regular First Appeal is maintainable against it. By doing so, it would be wholly inappropriate, since the order does not read like a judgment nor can it be construed as such, particularly when it is conceded that no decree has been drafted pursuant thereto. OP(C).No.859 OF 2020 8 11. Ineluctably, therefore, I have no other option but to set aside the impugned order, not because I have found conclusively against its merits, but because it cannot be sustained for the reasons above. Resultantly, I allow this Original Petition, invoking powers under Article 227 of the Constitution of India and set aside the impugned order; however, making it clear that I have not entered into the merits of any of the contentions of the parties recorded therein or the views of the Court indited in it; with consequential direction in the said Court to dispose of the suit itself as per law, after necessary opportunities are afforded to both sides. I ingeminatingly clarify that I have not evaluated the contents of the impugned order in any manner whatsoever, except from the touchstone as to whether it can be construed as an “order”; and therefore, the learned Munsiff will be at full liberty to dispose of the suit as per law, after following due procedure. I further direct the learned Munsiff to dispose of the suit as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment and to OP(C).No.859 OF 2020 9 enable an expeditious compliance of these directions, I direct the parties to mark appearance before the Trial Court on 27.07.2020 without fail. In the nature of the circumstances seen above, I do not deem it appropriate to make any order as to costs and consequentially direct the parties to suffer their respective costs. **Sd/- DEVAN RAMACHANDRAN** stu **JUDGE** OP(C).No.859 OF 2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PLAINT AS O S NO.346/2017 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA** - **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 2 TO 4** - **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 14.02.2020 IN M.A.NO.2554-2555/2019 IN CA NO.7115-7116/2019** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18.05.2020 IN OS NO.361/2019 ON THE FILES OF MUNSIFF COURT, KOTHAMANGALAM.** - **EXHIBIT P5 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE COUNSEL FOR THE PLAINTIFF** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 08/12/2017 IN I.A.NO.1989/2017 IN O.S.NO.346/2017 ON THE FILES OF THE MUNSIFF COURT, MUVATTUPUZHA.** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** **P.A TO JUDGE.**