K.J. George v. St. Mary's Orthodox Syrian Church, Koothattukulam and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 12TH DAY OF JUNE 2015/22ND JYAISHTA, 1937 RFA.No. 725 of 2010 (A) ------------------------ OS 43/2003 of I ADDL.DISTRICT COURT, ERNAKULAM APPELLANT/1ST PLAINTIFF: ------------------------- K.J.GEORGE, S/O.JOHN, AGED 47, KANIYALIL HOUSE, KOOTHATTUKULAM KARA KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SMT.HANI P.NAIR RESPONDENTS/DEFENDANTS 1-8 AND PLAINTIFFS 2&4: ----------------------------------------------------- 1. ST.MARY'S ORTHODOX SYRIAN CHURCH, EDAYAR, KOOTHATTUKULAM, EDAYAR KARA MUVATTUPUZHA TALUK, REPRESENTED BY ITS TRUSTEE MR.M.M.AVARACHAN, S/O.MATHAI, AGED 40 MULANJUNAMATTATHIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM - 686 662. ## 2. M.M.AVARACHAN, S/O.MATHAI, AGED 41, MULANJUNAMATTATHIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM PIN-686662. 3. ISSAC THOMAS, S/O.THOMAS, AGED 48, INCHAKUZHIYIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM PIN 686 662. 4. REV.FR.PAULOSE ERAMANGALATH, S/O.VARKEY, AGED 52, VICAR ST.MARY'S ORTHODOX SYRIAN CHURCH, EDAYAR, KOOTHATTUKULAM EDAYAR KARA, MUVATTUPUZHA TALUK, PIN-686 661. RFA.No. 725 of 2010 ## 5. K.O.JOHN, AGED 69, S/O.ULAHANNAN, KANJIRATHINGAL HOUSE, EDAYAR KARA KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK PIN-686661. 6. P.THAMPY, AGED 65, S/O.PHILIPOSE, MYLAMKADAVIL HOUSE, KIZHAKOMBU KARA KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK PIN-686661. 7. EDWARD GEORGE, S/O.STEPHEN, AGED 34, PUTTANIL HOUSE, ARIKKUZHA P.O., THODUPUZHA PIN-685584. 8. FR.SHAJI MEPPADATH, S/O.VARGHESE, 39 YEARS, MEPPADATH HOUSE, THIRUVANIYOOR P.O. PUTHENCRUZ, KUNNATHUNADU TALUK, PIN-682308. 9. BABY THOMAS, S/O.THOMAS, AGED 43, KOCHUPURAKKAL HOUSE, EDAYAR, MUVATTUPUZHA TALUK PIN-686 661. 10. P.V.ABRAHAM, S/O.VARKEY PARASSERIL HOUSE AGED 51, MUVATTUPUZHA TALUK, PIN-686 661. (PLAINTIFFS 3 AND 5 EXPIRED, LEGAL HEIRS NOT IMPLEADED). R5 & 6 BY ADV. SRI.S.SHYAM R5 & 6 BY ADV. SRI.BOBBY MATHEW KOOTHATTUKULAM THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.F.A. No.725 of 2010** ## **-----------------------------------------------** ## **Dated 12[th] June, 2015.** ## **J U D G M E N T** The decision in O.S.No.43 of 2003 on the file of the District Court, Ernakulam is under challenge in this appeal. 2. The plaintiffs in the suit are the Parishioners of the first defendant Church, viz., St.Mary's Orthodox Syrian Church, Koothattukulam. Defendants 2 and 3 are the trustees of the first defendant Church and the fourth defendant is its Vicar. The suit was filed in a representative capacity representing the parishioners of the first defendant Church. 3. The case of the plaintiffs is that the first defendant Church is a constituent Parish Church of the Malankara Orthodox Syrian Church and the same has to be administered in accordance with the constitution of the RFA 725 of 2010 2 Malankara Orthodox Syrian Church framed by the Malankara Association on 26.12.1934. It is alleged by the plaintiffs that the fourth defendant convened a meeting of the Parishioners of the church on 14.1.2002, otherwise than in accordance with the provisions of the constitution, and it was decided in the said meeting that the name of Dr.Thomas Mar Athnasious who is the diocesan metropolitan of the church shall not be read in the Tubuthan and that no Bishops of the Church shall be invited or permitted to enter the first defendant Church. According to the plaintiffs, it was also decided in the said meeting that the Kalpanas of the Bishops of the Church shall not be read in the Church. The case of the plaintiffs is that the decisions taken in the said meeting are contrary to the provisions of the constitution of the Church. It is also alleged by the plaintiffs that thereafter, yet another meeting of the Parishioners of the Church was convened RFA 725 of 2010 3 by the fourth defendant on 13.10.2002, contrary to the provisions of the constitution of the Church to discuss about the authority of the Diocesan Metropolitan of the Church. According to the plaintiffs, the Parishioners and the Vicar of the Church have no authority to take any decision concerning the powers of the Diocesan Metropolitan or any other Metropolitan, as the case may be. The essence of the case of the plaintiffs as evident from the pleadings is that the fourth defendant is attempting to get the control over the first defendant Church, in defiance of the provisions of its constitution. Paragraphs 7 to 9 of the plaint read thus: “7. It is submitted that now the Pothuyogam of the 1[st] defendant church is scheduled to be conducted in 13.10.2002. For which an agenda is published in the notice board. A copy of the agenda dated 29.9.2002 by the 4[th] defendant vicar is produced herewith and treated as the part of the plaint. It is submitted that the notice of the pothuyogam of the 1[st] defendant church is called for not in accordance with the provisions of 1934 constitution. On 14.1.2002 the Annual RFA 725 of 2010 4 Pothuyogam of the 1[st] defendant church was convened and taken a decision with the effect that the name of Dr.Thomas Mar Athanasius is the Diocesan Metropolitan shall not be read in the Tubuthan(ത�ബ�േ�ന‍) till new decision is taken place by the Pothuyogam. Moreover as per the decision in clause 16 of the pothuyogam dated 14.1.2001 no Bishops shall be invited or permitted to enter into the 1[st] defendant church and their Kalpanas shall not be read in the presence of parish members. It is submitted that the decision of the pothuyogam dated 14.1.2001 is totally illegal, void and actually a curtailment of the right of a Diocesan Metropolitan. It is submitted that it is the usual practice and belief of the entire Malankara Church that in every church during the time of Holly Mass the name of the concerned Diocesan Metropolitan has to be read in the Tubudan. Hence in the 1[st] defendant church since the same is exclusively comes under Kandanadu Diocese the name of Dr.Thomas Athanasious shall be read in the Tubudan (ത�ബ�േ�ന‍) at the time of Holly Mass. Moreover as per clause No.63, 65, 66 and 67 of the Constitution the Diocesan Metropolitan Dr.Thomas Mar Athanasius is having the control even every church which are coming under him including the 1[st] defendant church. Dr.Thomas Mar Athanasius is having the right and liberty to issue necessary Kalpanas and can enter into any church coming under him. He has also have the right to enter into and conduct the Holly Mass, Marriage and also the attending other spiritual function in respect of all churches coming under him. In short as per Section 66 of the Constitution every church has to be controlled and administered by the Diocesan Metropolitan. Hence neither the Vicar nor the pothuyogam have no right or authority to prevent RFA 725 of 2010 5 the Diocesan Metropolitan i.e., Dr.Thomas Mar Athanasius to enter into the 1[st] defendant church and issue necessary spiritual direction to them and also exercising his powers envisaged by 1934 constitution which was upheld by the Supreme Court. Hence the decision of the pothuyogam No.six clause No.1(a) and 1(b) dated 14.1.2001 is totally illegal, void and is against the provisions of 1934 constitution and decisions of the Hon'ble Supreme Court and hence the same is liable to be set aside. The said pothuyogam was convened and the decisions was taken by the 4[th] defendant only to get control the churches. 8. Now the 4[th] defendant vicar called for another pothuyogam of the 1[st] respondent church and the same is also not in accordance with the provisions of 1934 constitution. The pothuyogam is proposed to be held on 13.10.2002 in the church hall. As per clause No.13 of the 1934 constitution the persons who are eligible to participate in the pothuyogam and cast vote if any shall be published in the notice board. But till this time no such voters list or the name of the persons eligible to vote or participate in the pothuyogam is published in the notice board. The entire parishioners did not get an opportunity to verify their eligibility. A chapel is also functioning under the 1[st] respondent church but on intimation is given to that chapel also regarding the pothuyogam. Now without following these procedure an agenda alone is published by the 4[th] defendant which is highly illegal and against the provisions of 1934 constitution. More over the agenda to the proposed pothuyogam dated 13.10.2002 is also actually a curtailment of right of Diocesan Metropolitan. At any RFA 725 of 2010 6 rate the parishioners and the vicar has no right or authority to take any decisions with respect the rights powers and duties of the Diocesan metropolitan or any other metropolitan as per 1934 constitution. Hence the 4[th] defendant vicar has not right or authority to call for another pothuyogam for reconsidering the issues in the pothuyogam dated 14.1.2001 since the same are beyond the powers of the parish and parish members including the 4[th] defendant vicar. 9. But now the 4[th] defendant in utter disregard and in violation of the provisions of 1934 constitution called for pothuyogam, so as to get the entire control over the church under him. It is submitted that the 4[th] defendant has no right or authority to call for a pothuyogam to take such a kind of decisions as explained in the agenda dated 29.9.2002, it is actually a curtailment of rights given to the Diocesan Metropolitan as per 1934 constitution which was confirmed by the Apex Court including Supreme Court. The decision to be taken in the proposed pothuyogam is totally against clause No.65, since the same are against faith, order and discipline of the church, which are exclusively in the hands of the Diocesan metropolitan.” ## On the said allegations, the plaintiffs claimed the following ## reliefs : “(a) a decree declaring that the first defendant church is to be administered in accordance with the provisions of the 1934 (Nineteen thirty four) constitution. (b) a decree declaring that the decisions of the pothoyogam RFA 725 of 2010 7 dated 14.01.2001 (Fourteen - January - Two thousand and one) is illegal, void and against the provisions of 1934 (Nineteen thirty four) constitution and is liable to be set aside. (c) a decree declaring that the pothuyogam notice dated 29.9.2002 (Twenty ninth September two thousand and two) issued by 4th (fourth) defendant is unjust, illegal, arbitrary and against the provisions of 1934 (Nineteen thirty four) constitution. (d) a decree of permanent prohibitory injunction restraining the 4th (fourth) defendant their men or agents from conducting pothuyogam of the 1st (first respondent) church on 13.10.2002 (Thirteenth October two thousand and two) or any other dates in violation of the provisions of 1934 (Nineteen thirty four) constitution. (e) Award the cost of suit. (f) Award such other reliefs as this Hon'ble Court may deem fit.” 4. Defendants 1 to 3 remained ex parte. Defendant Nos.5, 6 and 7 have filed separate written statements. The main contention of the defendants in the written statements was that the first defendant Church is a public trust and the suit being one for the reliefs provided for in Section 92 of the Code of Civil Procedure, it RFA 725 of 2010 8 is not maintainable without the leave of the court to institute the suit as provided for in the said section. 5. In the light of the contention raised by the defendants as to the maintainability of the suit, an issue as to the maintainability of the suit was framed and the said issue was heard as a preliminary issue and decided against the plaintiffs as per the judgment impugned in this appeal. The plaintiffs are aggrieved by the said decision of the court below and hence this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondents. 7. As noticed above, the suit is one instituted by the plaintiffs in a representative capacity representing the Parishioners of the first defendant Church. The fact that the first defendant Church is a constituent Parish Church of the Malankara Orthodox Syrian Church is not in dispute. In **St. Peters Orthodox Syrian Church v. Fr.** RFA 725 of 2010 9 **Abraham Mathews** (2011 (4) KLT 540) a Division Bench of this Court, relying on the decision of the Apex Court in **P.M.A.Metropolitan v. Moran Mar Marthoma** (AIR 1995 SC 2001), held that constituent Parish churches of Malankara Church are public religious and charitable trusts to which Section 92 of the Code apply. The essence of the case of the plaintiffs is that the first defendant being a constituent parish Church under the Malankara Orthodox Syrian Church, it is to be governed in accordance with the constitution framed by the Malankara Association in the year 1934 and the fourth defendant who is the Vicar of the Church is attempting to carry on the affairs of the first defendant in defiance of the provisions contained in the 1934 constitution. The said case of the plaintiffs, as elaborated in paragraphs 7 to 9 of the plaint, amounts to allegations of breach of trust coming within the scope of Section 92 of the Code. Coming to the reliefs sought in RFA 725 of 2010 10 the suit, it is seen that the plaintiffs seek a decree declaring that the first defendant Church is to be administered in accordance with the 1934 constitution of the Malankara Orthodox Syrian Church. The said prayer, in effect, is one for settlement of a scheme for the administration of the first defendant Church, as the 1934 constitution of the Church contains all the requisite provisions for the administration of the parish Churches as well. As such, the said prayer would come within the scope of Section 92 of the Code of Civil Procedure. It is settled that for the purpose of examining the question as to whether a suit would come within the scope of Section 92 of the Code of Civil Procedure, what is to be seen is the purpose of the institution of the suit. If the purpose of the suit is to claim any one of the reliefs provided under Section 92 of the Code of Civil Procedure, the suit should be held to be one coming with the scope of Section 92 of RFA 725 of 2010 11 the Code of Civil Procedure. On a close scrutiny of reliefs (b), (c) and (d) in the suit indicates that the said reliefs are merely consequential to confine the administration of the Church in accordance with the 1934 constitution of the Church. In the aforesaid circumstances, there is no illegality in the decision of the court below that the suit, being one coming within Section 92 of the Code of Civil Procedure and instituted without the sanction of the court, is not maintainable. The appeal is, accordingly, dismissed. All the interlocutory applications in the appeal are closed. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)