Fr. Jiju Varghese & Ors. v. Reji Mankuzha & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935** ## **CRP.No. 306 of 2011 (B)** ## **------------------------** **AGAINST THE JUDGMENT IN OS 8/2008 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 19-02-2011** **REVISION PETITIONER(S)/REVISION PETITIONERS:** **--------------------------------------------------------------------------------------** **1. FR.JIJU VARGHESE, S/O.VARGHESE, THANNIKKOTTU HOUSE, KAITHACHIRA, KAIRADY VILLAGE KAIRADY P.O., CHITTUR TALUK, PALAKKAD DISTRICT** **2. O.U.ALIAS, S/O.ULAHANNAN OONNUKALLUGAL HOUSE, MANNAMANGALAM, MANNAMANGALM P.O. THRISSUR DISTRICT** **3. T.S.REJI, S/O.SKARIA, THACHELIKKARA PUTHENPURAYIL HOUSE, VETTUKAD P.O. PUTHENKADU, THRISSUR DISTRICT** **4. P.M.ISSAC, S/O.,MATHEW PALLIKKUNEL HOUSE, PEECHI VILLAGE, MANNAMANGALAM THRISSUR DISTRICT** **5. KURIAKOSE,(EUSEBIUS KURIAKOSE) METROPOLITAN, BISHOP'S HOUSE, PANANCHERY VILLAGE POOVANCHIRA P.O., CHUVANNAMANNU, THRISSUR DISTRICT** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **RESPONDENT(S):** - **----------------------------** **1. FR.REJI MANKUZHA, S/O.PAILY, MANKUZHA HOUSE, VELLIKUNALNGARA VILLAGE VELLIKULANGARA P.O., KODAKARA, MUKUNDAPURAM TALK THRISSUR DISTRICT** **2. M.V.VARGHESE, S/O.VARKEY MUNDASSERY HOUSE, PEECHI VILLAGE, KOLAMKUNDU MANNAMANGALM P.O., THRISSUR TALUK & DISTRICT PIN-680014** **...2** **-2-** ## **CRP.No. 306 of 2011 (B)** **3. PAULOSE C.I.S/O.IPPE CHEMMANAM HOUSE, PEECHI VILLAGE, MANNAMANGALM P.O. THRISSUR TALUK & DISTRICT, PIN-680014** **4. P.V.BABU,S/O.VARKEY, PERUMANITHADATHIL HOUSE, PEECHI VILLAGE, ASARIKAD P.O. THRISSUR TALUK & DISTRICT, PIN-680751** **5. JUJU P.VARGHESE, (WRONGLY SHOWN AS JITHU P.VARGHESE IN THE IMPUGNED ORDER)S/O.P.MGEEVARGHESE, PALISSERY HOUSE MANNAMANGALAM VILLAG, EMANNAMANGALAM P.O. THRISSUR TALUK & DISTRICT, PIN-680014** **6. THOMASMAR DIONYSIUS, (NOW MORAN MAR BASELIOUS THOMAS I) PATRIARCHAL CENTRE, PUTHENCRUZ, PUTHENCURZ P.O. ERNAKUALM DISTRICT** **R1 TO 5 BY ADV. SRI.K.K.APPU** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ C.R.P. No. 306 of 2011 -----------------------------------------Dated this the 11[th] day of October, 2013 ## **O R D E R** Defendants 1 to 5, in a suit for injunction, have filed this revision petition challenging the order passed by the learned Additional District Judge on issue no.1 framed in that suit as to the maintainability of that suit, which, according to the defendants, is bad for want of leave under section 92 of C.P.C. 2. In paragraph 5 of the plaint it is stated that the suit relates to the control of the administration of Mannamangalam Church, which is described by the plaintiffs as St.Mary's Orthodox Syrian Church and which is called by the defendants as St. Mary's Jacobite Syrian Church. According to the plaintiffs, the afore mentioned St. Mary's Orthodox Syrian Church (hereinafter referred to as 'Church') is to be administered and governed under the 1934 ## **C.R.P. No. 306/2011** **-2-** Constitution of the Malankara Orthodox Syrian Church. That Constitution was approved by the Hon'ble Supreme Court. It is contended that following the directions of the Hon'ble Supreme Court passed in the Execution Application filed by the 6[th] defendant in the suit, a meeting of the Malankara Association was convened and in that meeting, representatives were elected from all the parish churches governed under the '1934 Constitution'. In that meeting plaintiffs 1 and 2 were elected as the representatives of this Mannamangalam Church. 3. It is also contended that the Mannamangalam Church is included in the Thrissur Diocese and its lawful Metropolitan is H.G. Yuhanon Mar Maletius and that none else is entitled to claim or to act as the Thrissur Diocesan Metropolitan or in any manner interfere with the functioning of the Mannamangalam Church. It is further contended that any person claiming to be appointed as Vicar or priest or ## **C.R.P. No. 306/2011** **-3-** office bearer of the Mannamangalam Church by the 5[th] or 6[th] defendants has no legal authority to enter that church or to perform any sacraments in the church, its cemetery and kurisupallies attached to the church. Their further case is that the defendants have declared that they have formed a separate association called the Yakobaya Suriyani Christiani Association, different from the Malankara association and that they are members of that association with a different set of bye-laws framed in 2002 following the tenets laid down therein with the 6[th] defendant as their head. 4. The suit was filed following the procedure prescribed under Order I Rule 8 of C.P.C., with the defendants as representatives of all those who are not prepared to accept and obey the 1934 Constitution. The plaintiffs therefore prayed for passing a decree of prohibitory injunction restraining the defendants, their successors, as well as their supporters and sympathisers ## **C.R.P. No. 306/2011** **-4-** from entering into the Mannamangalam Church and other buildings and structures shown in the schedule to the plaint and restraining them from functioning as the Vicar of Mannamangalam Church and other institutions attached to it and administering them under the 1934 Constitution. 5. In the suit, the defendants contended that the suit is bad for want of leave under section 92 of C.P.C. and that the plaintiffs have nothing to do with St.Mary's Jacobite Syrian Church, Mannamangalam and they have got a parallel set up to meet their religious needs. The defendants further contended that the relief sought for in the plaint will come within the purview of Section 92 of C.P.C., and so the suit is bad for want of leave under section 92 of C.P.C. Accordingly, issue regarding maintainability of the suit was framed by the court below. 6. The court below held that the reliefs sought for in the plaint are only for vindication of individual or personal **C.R.P. No. 306/2011** **-5-** right and so it cannot be said that the suit is one coming within the ambit of Section 92 of C.P.C., and as such the issue was answered in favour of the plaintiffs. 7. The learned counsel for the petitioners would submit that the court below should have found that it was specifically stated in the plaint that the suit relates to administration of the church, which is a public religious trust, and if the suit is decreed the administration of the church from the present set up would be taken away and would be entrusted to a different body. According to the defendants, as on the date of the suit, the 1[st] defendant was the Vicar of the church and 2[nd] defendant was the Trustee of the church and defendants 3 and 4 were members of the Managing Committee and so it would amount to removal of trustees coming under section 92(1)(a) of C.P.C. 8. It is true that the Mannamangalam Church is a public religious trust. It is also not disputed that 1934 ## **C.R.P. No. 306/2011** **-6-** Constitution is applicable to Mannamangalam Church also. But the learned counsel for the respondents would submit that the present suit is only for injunction restraining the respondents from entering into the said church, Sunday school, parish hall etc and also to restrain them from causing obstruction to the 1[st] plaintiff from functioning as the Vicar of the said church. 9. The suit was originally filed before the Munsiff Court, Thrissur. It was transferred to Additional District Court, which is the designated Church Court for Malankara. The learned counsel for the respondents would submit that it is not a case where the direction of the court is necessary for the administration of the trust. The suit is not for any of the reliefs mentioned in (a) to (i) of section 92(1) of C.P.C. 10. The learned counsel for the respondents would submit that going by the allegations in the plaint and the reliefs sought for, it cannot be found that the suit would ## **C.R.P. No. 306/2011** **-7-** come under sub section (cc) of section 92(1). It has also to be found that on going through the plaint and the relief sought for it cannot be found that the suit is for removal of any trustee and as such sub section (a) of section 92(1) has no application in this case. Similarly, it is not a suit for directing a trustee who has been removed or a person who ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property. It is argued on behalf of the defendants that the plaintiffs have no right to manage Mannamangalam Church and that indirectly they wanted to remove the Vicar and other persons of the management and as such the suit would squarely fall within the ambit of section 92(1)(a) of C.P.C., even if (cc) of 92(1) does not apply. **C.R.P. No. 306/2011** **-8-** 11. The learned counsel for the respondents/plaintiffs relied upon the decision in **St.John's Jacobite Syrian Church v. Fr.John Moolamattom – 2005 (1) KLT 307** wherein it was held that in order to attract section 92 of C.P.C., it should not only be a public trust but also there should be an allegation of breach of any such trust either express or constructive or there should be a direction sought for from the court for such administration and that the relief sought for should be one for a decree of the nature enumerated in clauses (a) to (h) of section 92(1). It was also held that if the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights,or individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of section 92. 12. The learned counsel for the respondents would submit that the facts dealt with therein are exactly identical ## **C.R.P. No. 306/2011** **-9-** to the fact situation emerging in this case. It was held that when the right to the office of a trustee is asserted or denied and relief is asked for on that basis, the suit falls outside section 92. The learned counsel for the plaintiffs/respondents would submit that here the suit is not filed to vindicate the right of the public, but they seek only a direction of their individual or personal right and as such the contention that the suit is bad for want of leave under section 92(1) is only to be brushed aside. 13. Though here the Mannamangalam Church is the public religious church, there is no allegation of breach of trust nor is the direction of the court necessary for the administration of the trust. The suit does not contain a prayer for any of the reliefs mentioned in sub clauses (a) to (i) of section 92(1). 14. It was held by the Hon'ble Supreme Court in **Most Rev. P.M.A. Metropolitan & Ors. v. Moran Mar** ## **C.R.P. No. 306/2011** **-10-** **Marthoma & Anr. - AIR 1995 SC 2001** that “religion” includes worship, belief, faith, devotion etc., and extends to rituals and religious right which is civil in nature, is the right of a person believing in a particular faith to practice, preach and profess it. It was further observed that a dispute about a religious office is a civil dispute. The contention that the Vicar is only a trustee and so the allegations made in the plaint and the relief sought for would clearly show that it was to remove other trustees and to get himself declared as a trustee, the suit has been filed, is found to be bereft of any merit. 15. The learned counsel for the petitioners have produced certain decisions rendered in other cases. There can be no doubt that those decisions will have bearing only in the factual background of those cases – the averments in the plaint and the relief sought for etc. The main relief sought for in this case is that the defendants should not ## **C.R.P. No. 306/2011** **-11-** obstruct the 1[st] plaintiff from functioning as the Vicar of Mannamangalam Church and administering the same under 1934 Constitution, as amended by the Hon'ble Supreme Court. Therefore, I find no merit in the contention advanced by the learned counsel for the petitioners that the suit should have been brought seeking leave of the court under section 92(1) of C.P.C. The impugned order does not suffer from any legal infirmity or jurisdictional error so as to interfere with the same. In the result, this Civil Revision Petition is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE The following corrections are carried out in the order dated 11.10.2013 in C.R.P. No.306/2011, vide order dated 29.10.2013 in I.A. No.2706/2013: **-12-** ## **C.R.P. No. 306/2011** The second sentence viz. _“It is also not disputed that 1934 Constitution is applicable to Mannamangalam Church also._ ” occurring in paragraph 8 is deleted. The word “ _But_ ” occurring in line 4 of paragraph 8 is deleted and the 3[rd] sentence of paragraph 8 is started with the words “ _The Learned Counsel...._ ” Sd/Registrar (Judicial) jjj