Fr. John Jacob, Jacob Puthooran and Mathukutty v. Fr. N. I. Paulose, Saju Mathew and Mathai Chacko

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935** ## **AS.No. 795 of 1999 (C)** ## **----------------------AGAINST THE JUDGMENT IN OS 13/1990 of I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **======================** ## **APPELLANTS/DEFENDANTS 2 TO 4:** **--------------------------------------------------** **1. Fr. JOHN JACOB, PRIEST, RESIDING AT PUTHOOR HOUSE, EDAMARUKU KARA UDUMBANNOOR VILLAGE, THODUPUZHA TALUK** **2. JACOB PUTHOORAN, RESIDING AT PUTHOOR HOUSE EDAMARUKU KARA, UDUMBANNOOR VILLAGE THODUPUZHA TALUK** **3. MATHUKUTTY, RESIDING AT KUTTAMTHADATHIL EDAMARUKU KARA, UDUMBANNOOR VILLAGE THODUPUZHA TALUK** **BY ADVS.SRI.M.C.SEN (SR.) SRI.S.VENKATASUBRAMONIA IYER(SR.) SRI.K.J.KURIACHAN SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN** ## **RESPONDENTS/PLAINTIFFS:** **----------------------------------------** **1. Fr. N.I. PAULOSE, RESIDING AT NEDUMKUZHIYIL VALAKOM VILLAGE, MOOVATTUPUZHA** **2. SAJU MATHEW, RESIDING AT THADATHIL EDAMARUKU KARA, UDUMBANNOOR VILLAGE** **3. MATHAI CHACKO, PENATTUKALAPPURAYIL EDAMARUKU KARA, UDUMBANNOOR VILLAGE THODUPUZHA TALUK** ## **R1 TO R3 BY ADV. SRI.BIJU ABRAHAM** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 03.10.2013, THE COURT ON 24.02.2014 DELIVERED THE FOLLOWING:** ## **SD** ## **S.S.SATHEESACHANDRAN,J.** ## **==========================** ## **A.S. No. 795 of 1999** ## **==========================** ## **Dated, this the 24th day of February,2014** ## **JUDGMENT** The defendants in O.S. No.13/90 on the file of First Additional District Court, Ernakulam are the appellants. Suit instituted as O.S.No. 226/1990 of Munsiff Court, Thodupuzha, involving a Church as its subject matter, on transfer, was renumbered and tried by the above district court. Suit of the respondents for declaration and injunction was decreed by learned District Judge, and hence the appeal by the defendants. Parties are hereinafter referred to as plaintiffs and defendants. 2. The appeal arises from a suit launched by one of the two rival factions against the A.S.795/1999 2 other to have control, possession and administration of a Church, namely, St.George Jacobite Syrian Church, Edamaruku. In view of the rival claims and wrangle for possession of the Church by the warring groups proceedings under section 145 of the Code of Criminal Procedure, for short the Code, had been taken by the executive authorities, and now possession of the Church is with a receiver. By orders passed by this court in the appeal possession of the receiver over the Church still continues. 3. Suit was instituted by plaintiffs claiming that first plaintiff is the vicar of the Church, second plaintiff, is its Kaikaran and third plaintiff, a member of the managing committee of the parish. In the nature of the limited question arising for adjudication in the appeal a detailed narration of the pleadings set out by both parties is found to be unnecessary. Suffice to state, narrating the history of the church, adoption of a A.S.795/1999 3 constitution in 1934 and its binding force over the churches and parishioners of Malankara Association, and also the litigative history which continued among the two factions, one owing allegiance the Catholicos (Orthodox) and the other to the Patriarch of Antioch (Jacobites) plaintiffs have sought for the reliefs set out in the suit against the defendants, who belong to the rival groups owing allegiance to Patriarch of Antioch. In the suit the following reliefs are sought for. A. Declare that the 1[st] plaintiff or other priests and vicars appointed by the diocesan metropolitan of Kandanad dioceses as functioning under the constitution of the Malankara Church(now Joseph MarPachomeos) as per the provisions of the said constitution can only function in the plaint church. A.S.795/1999 4 B. Prevent the defendants by a decree of permanent injunction from exercising any authority in the plaint parish church and over and by its assets as scheduled hereunder and also prevent them and members of their group from in any manner preventing the functioning of the first plaintiff and others appointed under the provision of the constitution of the Malankara Church in and about and regarding the plaint church and all its assets. Defendants have resisted the suit setting up their rival claim for having control and administration of the church and its properties, raising various contentions including challenges against the Constitution of 1934 banked upon by plaintiffs, in A.S.795/1999 5 fact, the citadel on which they claim their entitlement to have the reliefs set out in the suit. Both sides adduced evidence in the case, which consisted of PW1 and A1 to A7 for plaintiffs, and DW1 and B1 and B2 for defendants. 4.Appreciating the pleadings and materials produced by both sides learned Additional District Judge has decreed the suit as hereunder. I hereby declare that the first plaintiff or other priests and vicars appointed by the diocesan metropolitan of Kandanadu diocese as functioning under the constitution of the Malankara Church as per the provisions of the said constitution can only function in the plaint parish church. The defendants are restrained by a permanent injunction from exercising any authority in the plaint parish church and over and by its assets and also restrained them and the members A.S.795/1999 6 of their group from in any manner preventing the functioning of the first plaintiff and others appointed under the provisions of the constitution of the Malankara Church in and about and regarding the plaint church and all its assets. The decree and judgment of the court below are assailed in this appeal. 5. I heard the counsel on both sides. **==> picture [396 x 13] intentionally omitted <==** defendants assailed the decree impeaching the maintainability of the suit. Suit framed and filed by plaintiffs squarely come under section 92 of the Code, for short the Code, and since leave of the court has not been obtained before instituting the suit, it was not maintainable and decree passed in such suit is liable to be set aside, is the submission of counsel. Plaintiffs had applied for permission to sue in representative capacity A.S.795/1999 7 invoking Order 1 Rule 8 of the Code of Civil Procedure, and, though permission was granted no publication was effected by them, and, on that count also, the decree passed in the suit is unsustainable is the further challenge. Learned senior counsel in support of the challenges raised over the maintainability of suit under section 92 of the Code relied on **Swamy Parmatmanand Saraswati** **and another v. Ramji Tripathi and another(AIR 1974 SC 2141)** , **St.Peter's Orthodox Syrian Church v. Fr.Abraham Mathews (2011(4) KLT 540)** and some unreported decisions of this court **Varkey Abraham v. St.Thomas Orthodox Syrian Church, Nechoor and others (A.S.No.844/1998)** vide judgment **dated 14.10.2009, Rev.FR.N.K.Yacob v. Rev.FR.Baby Paul (RFA No.350/2007)** vide judgment **dated 13.12.2012 and K.G.Koshy v.St.Thomas Orthodox Syrian Church (A.S.No.768/1988)** vide judgment **dated 4.1.2012.** In the decisions rendered by this court referred to above, all of them rendered in Church cases, where A.S.795/1999 8 dispute of similar nature touching upon the maintainability of suit in relation to Section 92 of the Code had been examined, and, it has been held that suit filed by one faction against the other faction in respect of the Church, which is a public trust, without obtaining leave under section 92 of the Code is not maintainable, submits the counsel. In the present case also the decree passed by the court below for want of sanction for institution of the suit under Section 92 of the Code is liable to be set aside, according to counsel. Learned counsel for respondents on the other hand contended that the Church is not a public trust. Referring to the provisions covered by 1934 constitution counsel submitted that section 92 of the Code has no application to the present suit where declaration and injunction are the reliefs canvassed. 1934 constitution has been upheld by the apex court and the defendants who are bound by that constitution are totally incompetent A.S.795/1999 9 and do not have any right to interfere and meddle with the affairs of church, is the submission of counsel contending that there are no grounds to interfere with the judgment and decree passed by the court below. 7. Decree passed by the court below is assailed on the ground that the suit is not maintainable since the subject matter involved is a Church, a public trust, and reliefs canvassed pertain to removal of trustees in administration and control of that Church. Though the reliefs couched in the suit are for declaration and injunction, essentially, the allegations raised on which the reliefs are founded have to be examined to consider whether the dispute pertain over the administration and control of church between the rival factions. The question whether Church is a public trust and, if so, a suit of this nature without sanction under section 92 of the Code would lie, is the significant question to be resolved in A.S.795/1999 10 the case. Though it was contended by learned counsel for respondents banking upon the provisions covered by 1934 constitution that the Church is a private trust and parishioners of the Church are ascertainable, and, by no stretch of imagination it can be considered as a public trust, I find that the arguments canvassed cannot be countenanced in view of the binding decision rendered by a Division Bench of this court in St.Peter's Orthodox Syrian Churches's case (supra). After an exhaustive and detailed consideration of the principles applicable for distinguishing a public trust from a private trust, in the above decision, which was also a suit filed by catholicos (orthodox faction) against the patriarch (jacobite faction) over another Church viz. St.Peter's Orthodox Syrian Church, Puthencruz, wherein also reliefs as canvassed in the present case were set forth, it has been held that the Church is a public trust and the suit filed without sanction under section 92 of the Code was not A.S.795/1999 11 maintainable. So it is too late in the day to put forth a challenge that the Church, subject matter involved in the suit, and the administration and control over which is sought for by declaration in favour of plaintiffs, one of the two factions against the other, restraining defendants by a decree of injunction as well, is not a public trust. 8. Reliefs canvassed in the suit, declaration and injunction, on its face value, do not come under section 92 of the Code. However, the subject matter of the suit, which is a public trust, with reference to the allegations raised in the plaint, and, the nature of disputes canvassed require to be considered, to appreciate whether the reliefs styled for declaration and injunction would take the suit out of the ambit and sphere of section 92 of the Code. Where Church is a public trust declaration sought by one faction against the other asserting its right to have control and A.S.795/1999 12 administration of the Church alleging that the constitution applicable to the Church empowers them to do so setting forth allegations in the plaint that the defendants had been exercising such administration and control previously over the church, postulates that the suit is one where dispute raised for adjudication by the court is over the control and administration of a public trust by one faction against the other and it squarely falls within the scope of section 92 of the Code. Of course, all the three ingredients covered by section 92 of the Code have to be satisfied for instituting a suit thereunder. Suit must relate to a trust created for public purpose of a charitable or religious nature, there is a breach of such trust or that the direction of the court is necessary for administration of the trust, and also the relief claimed is for one or other specifically provided, are the essential conditions to be satisfied for instituting a suit under A.S.795/1999 13 Section 92 of the Code. On the allegations set out in the plaint where the church, subject matter, is shown to be a public trust, essentially, by way of declaration applied for plaintiffs seek intervention of the court for its control and administration. Relief so claimed is not one covered as(a)to(h) of section 92 of the Code, that by itself cannot take the suit out of that section. A suit which clearly come within the scope of the section cannot be considered as one outside its scope because the relief has been styled by plaintiff in a different manner. Plaintiffs have filed the present suit not to enforce their private rights, but, as representatives of one of the two factions, seeking permission of the court to do so under Order 1 Rule 8 CPC, to gain control and administration of the Church, a public trust, against the other by a decree of declaration in their favour, and also with decree of injunction restraining defendants from interfering with their A.S.795/1999 14 administration of Church. Defendants have also been sued as representatives of the rival faction Patriarch (Jacobites) contending that previously recognising the 1934 constitution they continued in control and administration of the Church, but, presently the faction of the plaintiffs (Orthodox) alone have right over the Church. When such be the case, suit is not one enforcing private rights of the plaintiffs, but, one for vindicating the rights of the faction of the plaintiffs over the public trust against the other faction represented by defendants. This court in **St.Peter's Orthodox Syrian Church's case** referred to above, rendered by a Division Bench, and also in the two unreported decisions (in RFA 350/2007 by judgment dated 13.12.2012 and A.S.768/98 by judgment dated 4.1.2012) after exhaustively considering the applicability of section 92 of the Code over the suits filed by one faction against the other to gain control and administration of church A.S.795/1999 15 instituting such suits seeking declaration and injunction, has categorically held that such suit squarely fall under section 92 of the Code, and, where leave had not been obtained for institution of such suit it is not maintainable. On the conclusion so formed decree passed in the respective suit covered by the above three appeals where suits were not instituted under section 92 of the Code had been set aside and such suits were dismissed. A recapitulation of the principles evolved in the above cases by this Court over the applicability of section 92 of the Code in such suits instituted by one faction of the church against the other, to gain control and administration of church, is not called for disposing the present appeal. Suffice to state that the principles enunciated in the above decisions over the applicability of section 92 of the Code are equally applicable to the present suit filed by respondents. First plaintiff who claims A.S.795/1999 16 to be the vicar appointed by the metropolita of the Orthodox faction with the other two plaintiffs, one of them stated to be kaikaran and the other, a member of the parish, was not vindicating his private right, but, asserting the right of his faction over the church, a public trust, against the other rival faction (Jacobite) suing defendants in their representative capacity. Declaration and injunction applied for in the suit is nothing but a camouflage, and, the real purport and object of the suit would demonstrate that the reliefs canvassed in respect of the public trust squarely come under section 92 of the Code. That being so, the suit which was instituted without obtaining permission under section 92 of the Code was not maintainable, and the decree passed in the suit is liable to be set aside. 9. Plaintiffs have not effected publication after obtaining permission to do so under Order 1 Rule 8 to sue as representatives of Orthodox A.S.795/1999 17 faction and also to sue against the defendants as representatives of the rival faction, which too was canvassed to challenge the decree passed by the court below, does not require to be examined further in view of the conclusion reached that the suit filed without leave of the court under section 92 of the Code was not maintainable and the decree granted was unsustainable. In the result the decree and judgment passed by the court below are set aside. Suit O.S.13/1990 on the file of Additional District Court, Ernakulam shall stand dismissed. Appeal is allowed directing both sides to suffer their costs. sd/ ## **S.S.SATHEESACHANDRAN JUDGE** /true copy/ tpl/P.S to Judge