Fr. T. V. Eldhose, Raju Varghes, and M. P. Mathai v. St. George Tabore Church, Peechanikkadu, North Paravur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **FAO.No.67 OF 2019** **AGAINST THE ORDER IN I.A. NO. 1742 OF 2018 IN OS 92/2018 DATED 13-03-2019 OF PRINCIPAL SUB COURT,NORTH PARAVUR** ## **APPELLANTS/PETITIONERS/PLAINTIFFS:** |**1**|**FR.T.V.ELDHOSE, AGED 52 YEARS,**| |---|---| ||**S/O. T. V VARGHESE, THELAPPILLY HOUSE,**| ||**CHIRANGARA KARA, KORATTY EAST P.O.,**| ||**PIN 680 308, KIZHAKKUMURI VILLAGE,**| ||**CHALAKKUDY TALUK, THRISSUR DISTRICT.**| |**2**|**RAJU VARGHES, AGED 60 YEARS,**| ||**S/O. VARKEY PILLAI, KAIPPARAMBATT HOUSE,**| ||**PEECHANIKKADU KARA, PULIYANAM P.O.,**| ||**PIN 683 572, ANGAMALY VILLAGE, ALUVA TALUK.**| |**3**|**M.P. MATHAI, AGED 68 YEARS,**| ||**S/O. POULOSE, MOOLAN HOUSE,**| ||**PEECHANIKKADU KARA, PULIYANAM P.O.,**| ||**PIN 683 572, ANGAMALY VILLAGE, ALUVA TALUK.**| ||**BY ADVS.**| ||**SRI.ROSHEN.D.ALEXANDER**| ||**SMT.TINA ALEX THOMAS**| ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 ST.GEORGE TABORE CHURCH, PEECHANIKKADU, PULIYANAM P.O., PIN 683 572, ANGAMALY VILLAGE, ALUVA TALUK, REPRESENTED BY ITS TRUSTEE K.M. ELDO, AGED ABOUT 54 YEARS, S/O. MATHEW, KAIPARAMBATTU HOUSE, PEECHANIKADU KARA, PULIYANAM P.O., PIN 683 572, ANGAMALY VILLAGE, ALUVA TALUK.** FAO.67/2019 2 |**2**|**FR. K.T. YACOB, S/O. TARU,**| |---|---| ||**AGED ABOUT 64 YEARS**| ||**KOORAN THAZHATHU VEETTIL,**| ||**PUTHAMKUTTY POST, EDALAKKAD.**| |**3**|**ELDHO P.V., S/O. VARGHESE,**| ||**AGED ABOUT 51 YEARS, PARREKATTIL HOUSE,**| ||**PULIYANAM KARA, PULIYANAM P.O.,**| ||**PARAKKADAVU VILLAGE, ALUVA TALUK.**| |**4**|**VARGHESE A.P., S/O. PAULOSE,**| ||**AGED ABOUT 53 YEARS**| ||**PAINADATH AYYAMPILLY HOUSE, PULIYANAM KARA,**| ||**KARUKUTTY VILLAGE, KARUKUTTY P.O., ALUVA TALUK.**| **R1 BY ADV. SHRI.HARIMOHAN R3-4 BY ADV. SRI.DINESH R.SHENOY** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-11-2019, THE COURT ON 04-12-2019 DELIVERED THE FOLLOWING:** FAO.67/2019 3 ## **JUDGMENT** **Dated this the 4th day of December 2019** Challenge in this appeal is against the order passed by the learned Sub Judge dated 13.3.2019 in I.A. No. 1742 of 2018 ,a petition under Order 39 Rule 1 of the Code of Civil Procedure in O.S. No. 92 of 2018 on the file of the Principal Sub Court, North Paravur. 2. In a brief outline of the material aspects, it may be noticed that the case as O.S. No. 92 of 2018 has been filed under Section 92 of the Code of Civil Procedure ('CPC' for short) after obtaining leave in O.P. No. 4 of 2018. The appellants' case is that the first respondent Church namely, St. George Tabore Church, Peechanikkad, is a constituent Parish Church of the Malankara Orthodox Syrian Church coming under the Angamaly Diocese. Being a constituent parish Church of the Malankara orthodox church, FAO.67/2019 4 this church is also to be administered under 1934 Constitution as per the various judgments pronounced by the Apex Court in the dispute between Patriarch faction and Catholicos faction in Malankara church cases. But, the respondents 2 to 4 and their men are obstructing the appellants from entering into the Church or conducting prayers in the Church. They are in parallel administration of the Church and parallel services are also being conducted contrary to the law declared by the Supreme Court. Still the interim injunction petition sought for to restrain them from conducting parallel services and parallel administration was dismissed by the court below is the grievance of the appellants. 3. The respondents 2 to 4/defendants 2 to 4 opposed the application inter alia contending that the 1[st] respondent church is a Public Religious Charitable Church established in AD 1905 as per gift deed No.1997/1905 of Alangad SRO and the parishioners are the beneficiaries of the Church, with others who have faith in FAO.67/2019 5 the church and its supreme head, the patriarch of Antioch. Since Trust is created by the gift deed of 1905, the administration is to be carried out as per the Trust Deed of 1997/1905. The 1934 Constitution need not be taken into consideration in the administration of this particular Church. The property is not a bhadrasana property. Therefore, the appellants are not entitled to get the reliefs sought for in the petition, is the stand taken by the respondents. 4. Heard Adv. S. Sreekumar, the learned Senior Counsel for the appellants and Adv. Dinesh R Shenoy, the learned Senior Counsel for the respondents. 5. Admittedly, the suit was filed after obtaining leave under Section 92 CPC. It is contended with vehemence by the learned Senior Counsel for the respondents that neither 1934 Constitution nor 2002 Constitution is applicable for the management of this particular Church, as it is to be managed as per FAO.67/2019 6 Gift/Trust Deed No. 1997/1905 of Alangad SRO. According to learned counsel as the church is a public religious charitable trust established in AD 1905 and the Parishioners of the Church are the beneficiaries of the Church, the church cannot retract from the aim and objects of the deed of trust or accept other beliefs which are against its main objects. At the outset, it is to be noted that the respondents have specifically contended that the church is not a constituent parish church of the Angamaly Diocese of Malankara Orthodox Syrian Church to be governed by provisions of the 1934 Constitution, as the trust was created by the gift deed of 1905, much prior to the 1934 Constitution. But it is clear from the face of the record that the dispute between the appellants and the respondents are between the patriarch faction and catholicos faction regarding the control of the spiritual as well the temporal control and management of the affairs of the church. In the objection filed to the petition under Section 92 of CPC also it FAO.67/2019 7 is made clear by the respondents that they are not bound by the 1934 constitution and they believe in the supremacy of patriarch of Antioch. In short, their contention is that the church is not one to be administered by 1934 Constitution. 6. On a closer look at the record, it is noticed that court below mistakenly observed in the order under challenge that the Church in dispute was not one coming in the list of 1064 constituent churches of Malankara Orthadox Church attached with the schedule in the representative suit. Therefore, there is a larger question to be adjudicated in the course of the suit and so the appellants' prayer cannot be granted. Ext.A8 is the copy of the plaint in O.S. No. 4 of 1979. But the said finding is not factually correct as this Church is included as Sl. No. 778 of the 1064 churches in the list attached with the plaint in O.S. No. 4 of 1979. O.S. No. 4 of 1979 was disposed of with similar cases and it was chalenged before the Apex Court. It is worth mentioning here that FAO.67/2019 8 in appeal the Apex Court [ Most Rev.P.M.A. Metropolitan v. Moran Marthoma (1995 Supp (4) SCC 286)] had held that Malankara Church is episcopal in character to the extent it is so declared in the 1934 Constitution. The said constitution also governs the affairs of the Parish Churches and shall prevail. 7. Again the Apex Court in K.S. Varghese v. St. Peter's & St. Paul's Syrian Orthodox Church [(2017) 15)SCC 333] reiterated the main points in the concluding paragraphs as points 228 to 228.28. The most important points, for disposal of this appeal are reproduced as follows: “ 228.1. Malankara Church is episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the parish churches and shall prevail.” Paragraphs 228.3 to 228.5 read as follows: “ 228.3. The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of the provisions of Order 1 Rule 8 and FAO.67/2019 9 Explanation 6 to Section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit I.e., Samudayam suit are also binding on parish churches/parishioners to the extent issues have been decided. 228. 4. As the 1934 Constitution is valid and binding upon the parish churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the Churches under the guise of spiritual supremacy of the Patriarch. 228.5. The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.” Further, Paragraphs 228.7, 228.8, 228.9, 228.13, 228.26 and 228.28 read as follows: “ 228.7. Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any association and as per Article 20 of the Universal Declaration of Human Rights, FAO.67/2019 10 the Parish Assembly of the Church by majority or otherwise cannot decide to move Church out of the Malankara Church. Once a trust, is always a trust. 228.8. When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of the 1934 Constitution without the approval of the Church hierarchy. 228.9. The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.” “ 228.13 . Malankara Church is episcopal to the extent as provided in the 1934 Constitution and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.” “ 228.26. The 1934 Constitution is appropriate and adequate for management of the parish churches, as such there is no necessity of framing a scheme under Section 92 CPC.” “ 228.28. Both the factions, for the sake of the sacred religion they profess and to pre-empt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve FAO.67/2019 11 their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.” 8. Recently the Apex Court in Fr. Issac Mattammel CorEpiscopa v. St. Mary's Orthodox Syrian Church [2019 (4) KHC 868 (SC)] again reminded and cautioned all the courts dealing with the matter that, the courts have to decide all pending matters following the decision in K.S.Varghese's case (supra) as the decision in 1995 Judgment [Rev. P.M.A. Metropolitan case (supra)] was rendered in a representative suit which is binding on all concerned. Paragraphs 2 and 3 read as follows: “2. It passes comprehension that how the judge has passed the impugned interim order which runs expressly contrary to the decision of this Court in K.S. Varghese v. St. We have intended peace to come in Church but due to such orders passed in contravention of law laid down by this Court law can never be obeyed. This amount to a violation of the judgment and order. The High Court has passed an interim order in violation of the judgments and orders passed by this FAO.67/2019 12 Court. We are not able to understand what kind of judicial discipline is reflected while passing the impugned order, which should not have been passed at all. We restrain all the Civil Courts and the High Court in Kerala not to pass any order in violation of the mandate of this Court's decision in K.S.Varghese (supra). 3. The appeal arises out of the suit, pending before the High Court, is disposed of in terms of the decision passed by this court in K.S.varghese (supra) as there is no scope left for further litigation on the issue. The High Court has no right to tinker with the judgment and order passed by this Court which is binding and the judicial propriety has to be maintained at all costs. There is no scope for further litigation in the matter which we have concluded. We direct the Courts to decide all pending matters following the aforesaid decision which has been affirmed thereafter by umpteen number of times.” 9. Therefore, in the wake of the decisions of the Apex Court, it is crystal clear that a Priest appointed under 1934 Constitution, alone can offer the services in constituent parish Churches coming under Malankara Orthodox church, as 1934 Constitution fully governs the affairs of the parish churches and it shall prevail over all the churches coming under the Malankara Church. Malankara Metropolitan enjoys the prime jurisdiction with FAO.67/2019 13 respect to the temporal, ecclesiastical, spiritual administration of Malankara church. In short, a Vicar/Priest appointed by Diocesan Metropolitan under 1934 Constitution alone can offer services/prayers in this Church and parallel services are not permissible in the Church. 10. Every parishioners and authorities leading them need to understand the spirit of the Judgments rendered by the Apex Court and act accordingly, especially when the definite finding is that there is no scope for further litigation in the concluded matter. Otherwise rule of law cannot be preserved. To create a joyful and peaceful atmosphere at least to offer prayers by those who truly want it, in the churches in dispute, the law laid down by Apex Court has to be obeyed and followed in letter and spirit and no body can be above the law, or flout the decisions of the Apex Court. 11. As this Church is a Constituent Parish Church of Malankara Orthodox Church under the Angamaly Diocese, the FAO.67/2019 14 respondents 2 to 4 or anybody acting under them have absolutely no right to have parallel administration of the Church or to conduct parallel services on the basis of the so-called Trust Deed of the year 1905. As this Church is also a Church to be administered under 1934 Constitution, no doubt, there is a strong prima facie case in favour the appellants and so, they have a right to get an order of injunction obstructing the respondents 2 to 4 from conducting parallel services and parallel administration in the Church and hence, the interim injunction as sought for by the appellants/plaintiffs, is only to be granted as prayed for. In the result, the order dated 13.3.2019 in I.A. No.1742 of 2018 in O.S. No. 92 of 2018 of the Principal Sub Judge, North Paravur is set aside. The respondents 2 to 4 and all men acting under them, who are not duly appointed and entrusted by the Diocesan Metropolitan of Angamaly Diocese as per 1934 Constitution of the Malankara Orthodox Church are restrained by an FAO.67/2019 15 order of temporary injunction from conducting parallel religious services and parallel administration of the 1[st] respondent Church. But it is made clear that they can enter into the Church only to attend the religious services conducted by the Vicar appointed by the Diocesan Metropolitan of Angamaly Diocese under the 1934 Constitution. But they have absolutely no right to interfere with the services or the administration of the Church till the disposal of the suit by the court below. Consequently, this F.A.O. stands allowed as prayed for. No costs. Sd/SHIRCY V JUDGE sb