LIVINGSTONE A. and Others v. THE STATE POLICE CHIEF & OTHERS

``` 1 ``` W.A No.1042 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023/ 26TH SRAVANA, 1945 ``` ``` WA NO.1042 OF 2023 ``` ``` ARISING FROM THE INTERIM ORDER DATED 05.04.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP(C)NO. 12043 OF 2023 ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1LIVINGSTONE. A, AGED 88 YEARS, S/O.ALBERT P (LATE) GRACE HILL, TC 11/855, MRA 72, MANCHADIVILA, NANTHENCODE, TRIVANDRUM (FAMILY NO. 444), PIN - 695003 2THOMAS S. P AGED 87 YEARS, S/O.S PAUL (LATE) HOUSE NO-24, MUSEUM BAINS COMPOUND, NANTHENCODE, TRIVANDRUM (FAMILY NO. 309), PIN - 695003 3JUSTIN. V AGED 87 YEARS, S/O.VEDASIROMONY G (LATE) 88, BAINS COMPOUND, NANTHENCODE, TRIVANDRUM (FAMILY NO. 247), PIN - 695003 4BENNET THOMPSON AGED 84 YEARS, S/O.THOMPSON M (LATE), TC 11/1254-1, YMR 18A,YMR JN., NANTHENCODE, TRIVANDRUM (FAMILY NO. 293), PIN - 695003 BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) VISHNU B.KURUP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE STATE POLICE CHIEF STATE POLICE HEADQUARTERS, VAZHUTHAKAD, THIRUVANANTHAPURAM, PIN - 695010 ``` ``` 2 ``` W.A No.1042 of 2023 - **`2 THE CITY POLICE COMMISSIONER THYCAUD, THIRUVANANTHAPURAM, PIN - 695034`** - **`3 THE STATION HOUSE OFFICER MUSEUM POLICE STATION, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`4 THE DISTRICT COLLECTOR DISTRICT COLLECTORATE, CIVIL STATION, KUDAPANAKUNNU, THIRUVANANTHAPURAM, PIN - 695043`** - **`5 THE SOUTH KERALA DIOCESE REPRESENTED BY ITS BISHOP, REV. A. DHARMARAJ RASALAM, BISHOPS HOUSE, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`6 REV A DHARMARAJ RASALAM BISHOP OF CHURCH OF SOUTH INDIA, SOUTH KERALA DIOCESE, BISHOPS HOUSE, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`7 T.T PRAVEEN NOMINATED ADMINISTRATIVE SECRETARY. CHURCH OF SOUTH INDIA, SOUTH KERALA DIOCESE, BISHOPS HOUSE, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`8 REV. VEDARAJ PRESBYTER IN CHARGE, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`9 REV. C. SANTOSH KUMAR PRESBYTER, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`10 REV. VINCENT RESSALIAH PRESBYTER, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** - **`11 REV SAJI N STUWART PRESBYTER, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN - 695033`** ``` 12ROSSMILAN DANIEL R.S. ADMINISTRATIVE SECRETARY, MM CSI CATHEDRAL, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, KERALA PIN - 695033 ``` ``` 3 ``` W.A No.1042 of 2023 ``` BY ADVS. GOVERNMENT PLEADER (B/O) SRI.ARUN B.VARGHESE (B/O) ``` ## **`OTHER PRESENT:`** ``` SRI T.K.SHAJAHAN-SR GOVERNMENT PLEADER ; SRI ARUN B.VARGHESE ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 4 ``` W.A No.1042 of 2023 ## **J U D G M E N T** ## Anil K.Narendran, J. The appellants filed W.P.(C)No.12043 of 2023 invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 1 to 3 to make necessary arrangements and to afford sufficient police protection for the members of the MM Church/Congregation to offer prayers and to attend the Holy Communion in the MM Church without the same being obstructed by the respondents 6 and 7, their henchmen and other respondents who are arrayed as respondents 8 to 12. The petitioners have also sought for a writ declaring that the members of the MM Church/Congregation are entitled to attend the Holy Communion and to offer prayers inside the Church as the same is established as a fundamental right of the citizens; and a writ declaring that the members of the MM Church/Congregation are entitled to the customary right of decent burial of the dear ones in the cemetery as the same is established as a fundamental right of the citizens. 2. On 05.04.2023, when W.P.(C)No.12043 of 2023 came up for admission, the learned Single Judge admitted the ``` 5 ``` W.A No.1042 of 2023 matter on file. The learned Government Pleader took notice for respondents 1 to 4. Urgent notice by speed post was ordered to respondents 5 to 12. 3. The interim relief sought for in W.P.(C)No.12043 of 2023 is an order directing respondents 1 to 3 to make necessary arrangements for the members of the MM Church congregation, whose list is given in Ext.P1, to attend the Holy Communion and to offer prayers without the same being obstructed by respondents 6 to 12, their followers and their family, pending disposal of the writ petition. The learned Single Judge, by order dated 05.04.2023, declined the interim relief sought for. Paragraphs 2, 3 and the last paragraph of that order read thus; “2. Police protection is sought to offer prayers and to attend the Holy Communion in the Mateer Memorial Church without any obstructions. The petitioners state that they are parishioners and they have a right to attend the Holy Communion and to offer prayers inside the Church premises. 3. The dispute primarily is about the administration of the Church. The contesting respondents would submit that the petitioners are not parishioners of the Church and police protection is sought only to create problems and law and order situation. When the contesting ``` 6 ``` W.A No.1042 of 2023 respondents controvert the very status of the petitioners as parishioners, it would not be proper to give police aid or assistance by way of interim measure. The interim relief sought for by the petitioners are hence declined.” 4. Feeling aggrieved, the appellants-writ petitioners are before this Court in this writ appeal, invoking the provisions under Section 5 of the Kerala High Court Act, 1958. 5. Along with this appeal, the appellants filed I.A No.1 of 2023 seeking an order to accept Annexures I to IV as additional documents, invoking the provisions under Rule 154 of the Rules of the High Court of Kerala 1971. Respondents 5 to 12 have filed a counter affidavit, opposing the relief sought for in that interlocutory application. 6. Heard the learned senior counsel for the appellants, the learned Senior Government Pleader for respondents 1 to 4 and the learned counsel for respondents 5 to 12. 5. In **Laxmi Civil Engineering Services Pvt. Ltd. v. Kerala Water Authority [2023:KER:33995]** a Division Bench of this Court in which both of us were parties held that in an appeal filed under Section 5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by ``` 7 ``` W.A No.1042 of 2023 invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence, such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. Paragraphs 69 to 71of the said decision read thus; “69. During the pendency of the writ appeals, the appellant in the respective writ appeals filed various interlocutory applications invoking the provisions under Rule 154 of the Rules of the High Court of Kerala, 1971, ``` 8 ``` W.A No.1042 of 2023 producing therewith various additional documents. In W.A.No.811 of 2023 appellant produced Annexure A1 additional document along with I.A.No.1 of 2023, at the time of filing of the writ appeal, which was followed by production of Annexures 2 to 33 as additional documents along with I.A.Nos.2 of 2023 to 14 of 2023. Similarly, in W.A.No.813 of 2023, in addition to Annexure 1 document produced along with I. A.No.1 of 2023, the appellant produced Annexures 2 to 8 along with I.A.No.2 of 2023 and thereafter Annexures 14 to 21 as additional documents along with I.A.Nos.2 of 2023 and 6 of 2023. 70. In **Baby Joseph and others v. Kerala State Electricity Board and others [2016 (4) KHC 251]** , a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, held that in an appeal filed under S.5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence, such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against ``` 9 ``` W.A No.1042 of 2023 was pronounced. This is for the reason that, in an intracourt appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In that view of the matter, the Division Bench held that, in the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted to raise such a contention for the first time in the writ appeal, placing reliance on the additional documents produced along with an interlocutory application filed by them. 71. In view of the law laid down in the decision referred to supra, for admission of additional evidence in these writ appeals filed under Section 5 of the Kerala High Court Act, the appellant in the respective writ appeals has to establish the grounds necessary for such exercise, as contemplated under Order XLI, Rule 27 of the Code of Civil Procedure. The respective writ petitions should contain basic pleadings necessary for admission of such additional evidence and the appellant has to satisfy this Court that though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. In these intra - court appeals filed under S.5 of the Act, the appellant cannot be permitted to expand the scope of ``` 10 ``` W.A No.1042 of 2023 the writ petitions by raising grounds which were neither urged nor pressed into service before the learned Single Judge. Subject to the said observations, the interlocutory applications filed in both writ appeals to accept additional documents are allowed and those documents are marked as Annexures 1 to 33 in W.A.No.811 of 2023 and as Annexures 1 to 8 and 14 to 21 in W.A.No.813 of 2023.” 6. The judgment of this Court in **Laxmi Civil** **Engineering Services Pvt. Ltd. [2023:KER:33995]** was under challenge before the Apex Court in SLP (C)No.14950 of 2023, which ended in dismissal by the order of the Apex Court dated 24.07.2023. 7. The learned Senior Counsel for the appellantspetitioners would submit that, in view of the law laid down by this Court in **Laxmi Civil Engineering Services Pvt. Ltd. [2023:KER:33995]** in a writ appeal filed under Section 5 of the Kerala High Court Act, admission of additional evidence is permissible only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code of Civil Procedure. 8. The learned counsel for respondents 5 to 12 would submit that I.A No.1 of 2023 filed by the appellants seeking an ``` 11 ``` W.A No.1042 of 2023 order to accept Annexures I to IV as additional documents is one filed under Rule 154 of the Rules of the High Court of Kerala 1971. In view of the law laid down by this Court in **Laxmi Civil Engineering Services Pvt. Ltd. [2023:KER:33995]** admission of additional evidence invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure is permissible in a writ appeal filed under Section 5 of the Kerala High Court Act only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. 9. In view of the law laid down by this Court in **Laxmi Civil Engineering Services Pvt. Ltd. [2023:KER:33995]** we find that the appellants-petitioners cannot raise a challenge against the impugned order dated 05.04.2023 of the learned Single Judge, relying on the additional documents, i.e., Annexures I to IV produced in the writ appeal, along with I.A No.1 of 2023. 10. In the result, this writ appeal fails on the above ground and the same is accordingly dismissed. It is made clear that this judgment will not stand in the way of the appellants filing an application seeking amendment ``` 12 ``` W.A No.1042 of 2023 of the pleadings in the writ petition and the learned Single Judge shall consider such application, in accordance with law, after considering the objections, if any, raised by the respondents. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV ``` 13 ``` W.A No.1042 of 2023 ## **`APPENDIX OF WA 1042/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure-ITRUE COPY OF THE PAGES 1 TO 160 OF THE DIRECTORY OF THE MM CHURCH. ``` - **`Annexure-I(a) TRUE COPY OF THE PAGES 161 TO 318 OF THE DIRECTORY OF THE MM CHURCH.`** - **`Annexure-II TRUE COPY OF THE FAMILY REGISTER PARTI DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III COPY OF THE FIRST 125 PAGES OF THE FAMILY REGISTER PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III(a) COPY OF PAGES 126 TO 250 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III(b) COPY OF PAGES 251 TO 375 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-III(c) COPY OF PAGES 376 TO 408 OF THE FAMILY REGISTER OF CSI CHURCH PART-II DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE.`** - **`Annexure-IV TRUE COPY OF THE PAGES 1 TO 87 OF THE FAMILY REGISTER PART-III DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`** - **`Annexure-IV(a) TRUE COPY OF THE PAGES 88 TO 175 OF THE FAMILY REGISTER PART-III DULY COUNTERSIGNED AND ATTESTED BY THE PRESBYTER IN CHARGE`**