LOID JUDE MANAKKAT v. PASTOR COUNCIL OF ST.AUGUSTINE'S CHURCH, AROOR & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** ## **WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937** ## **OP(C).No. 668 of 2016 (O)** **-------------------------JUDGMENT IN OS 669/2013 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. .......** **PETITIONER:** **-------------------** **LOID JUDE MANAKKAT, AGED 48 YEARS, S/O.LAWRENCE, MANAKKAT HOUSE, AROOR P.O., CHERTHALA, ALAPPUZHA-688 534.** **BY SRI.S.SREEKUMAR (SENIOR ADVOCATE) ADVS. SRI.M.S.UNNIKRISHNAN SRI.SAJU THALIATH SMT.M.PPRIYANKA** ## **RESPONDENT(S):** **--------------------------** **1. PASTOR COUNCIL OF ST.AUGUSTINE'S CHURCH, AROOR, REPRESENTED BY ITS SECRETARY, CHARLS P.M., AGED 57 YEARS, S/O.MICHEL, HOUSE NO.15/443, PALLIPARAMBIL HOUSE, AROOR-688 534.** **2. REV.FR.JOSEPH VADAKKEEVEETTIL, PARISH PREIST, ST.AUGUSTINE'S CHURCH, AROOR, AROOR-688 534.** **3. LAWRENCE, AGED 68 YEARS, TRUSTEE, ST.AUGUSTINE'S CHURCH, AROOR -688 534, S/O.AVIRAH, HOUSE NO.13/285, EDEZATHU HOUSE, KELTRON ROAD, AROOR-688 534.** **4. JAISON K.J., AGED 37 YEARS, TRUSTEE, ST.AUGUSTINE'S CHURCH AROOR, S/O.JOSEPH, HOUSE NO.15/342A, KAKKARAPARAMBU, AROOR-688 534.** **5. CENTRAL COMMITTEE OF ST.AUGUSTINE'S CHURCH, AROOR, REPRESENTED BY ITS CONVENER, AGUSTINE, CHERUVALLY HOUSE, AROOR-688 534.** **6. PRAKASH, AGED 56 YEARS, S/O.AMBROS, PROPRIETOR, PRAKASH CONSTRUCTIONS, BUILDING NO.IX/210, CHETTIPEDIKA, PALLIKKUNNU, KANNUR-670 004.** **--2--** **--2--** ## **OP(C).No. 668 of 2016 (O)** **-----------------------------------** **7. ST.AUGUSTINE'S CHURCH, AROOR, REPRESENTED BY ITS TRUSTEE** **8. RAPHEL DAVID, AGED 62 YEARS, S/O.ESSEY, PAREMURY HOUSE, AROOR-688 534.** **9. BISHOP OF KOCHI DIOCESE, DIOCESE OF KOCHI, FORTKOCHI-682 001.** ## **10. THE VICAR,** **ST.AUGUSTINE'S CHURCH AROOR, AROOR-688 534.** **R1-R7,R9 & 10 BY SRI.ABRAHAM VAKKANAL (SENIOR ADVOCATE) ADVS. SRI.DIJO SEBASTIAN SRI.PAUL ABRAHAM VAKKANAL SMT.VINEETHA SUSAN THOMAS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **OP(C).No. 668 of 2016 (O)** ## **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS : -------------------------------------** **EXT.P1: COPY OF PLAINT IN OS.NO.669 OF 2013 ON THE FILES OF ADDITIONAL MUNSIFF'S COURT,CHERTHALA. EXT.P2: COPY OF THE ORDER IN IA.NO.3416 OF 2014 DATED 28.11.2013. EXT.P3: COPY OF THE MODIFIED ORDER DATED 16.12.2013 IN IA.NO.3416 OF 2013. EXT.P4: COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA.NO.3417 OF 2013. EXT.P5: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 2,3 AND 4. EXT.P6: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE 5TH DEFENDANT. EXT.P7: COPY OF WRITTEN STATEMENT SUBMITTED BY THE 6TH DEFENDANT. EXT.P8: COPY OF WRITTEN STATEMENT SUBMITTED BY THE 8TH DEFENDANT. EXT.P9: COPY OF THE ORDER IN IA.NO.2362 OF 2015. EXT.P10: COPY OF THE ORDER IN IA.NO.1525 OF 2015 OF ADDITIONAL MUNSIFF'S COURT,CHERTHALA DATED 27.07.2015. EXT.P11: COPY OF THE ORDER IN OP(CIVIL)NO.2066 OF 2015. EXT.P12: COPY OF ORDER IN W.P.C.NO.29995 OF 2015 OF THIS HON'BLE COURT DATED 30.10.2015. EXT.P13: COPY OF THE REPORT NO.C/40/2016 FORWARDED BY THE DISTRICT TOWN PLANNER TO CHIEF TOWN PLANNER,THIRUVANANTHAPURAM DATED 02.02.2016. EXT.P14: COPY OF THE REPORT ISSUED BY THE SECRETARY AROOR GRAMMA PANCHAYATH TO CHIEF TOWN PLANNER,THIRUVANANTHAPURAM. EXT.P15: COPY OF IA.NO.829 OF 2016. EXT.P16: COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 2 TO 4. EXT.P17: COPY OF COUNTER AFFIDAVIT FILED BY THE 10TH RESPONDENT. EXT.P18: CARBON COPY OF THE ORDER DATED 26.02.2016 IN IA.NO.829 OF 2016.** **--2--** **--2--** **OP(C).No. 668 of 2016 (O)** ## **-----------------------------------** **EXT.P19: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE 10TH DEFENDANT.** **EXT.P20: COPY OF THE MEMO FILED BY 9TH DEFENDANT ON 01.03.2016.** **RESPONDENT(S)' EXHIBITS: ---------------------------------------** **EXT. R10(A) : TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA.** **EXT. R10(B) : TRUE CERTIFIED COPY OF THE MINUTES OF THE PARISH PASTORAL COUNCIL MEETING.** **EXT. R10(C) : TRUE COPY OF THE COMMISSION REPORT IN OS.NO.669/13 ON THE FILE OF THE ADDITIONAL MUNSIFF, CHERTHALA.** **EXT. R10(D) : TRUE COPY OF THE REPLY OBTAINED UNDER RTI ACT FROM THE ARCHEOLOGICAL DEPARTMENT.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **mbr/** ## **K.ABRAHAM MATHEW J.** -------------------------------------------------------O.P.(C)No.668 of 2016 -------------------------------------------------------Dated this the 16[th] day of March, 2016 ## **JUDGMENT** The 7[th] respondent St. Augustine's Church is a parish, of which the petitioner is a member. The present church building was constructed about 136 years ago. In the same premises a new church building was under construction, when a part of it collapsed. The petitioner instituted the suit for the following reliefs: a. A decree of declaration that the defendants 1 to 5 has no manner of right whatsoever to demolish the ancient St. Augustine's Church, Aroor as the same is liable to be protected as an ancient monument. b. the decree of declaration that the defendants 1 to 5 have no manner of right whatsoever to demolish the existing ancient Church as such a decision to demolish the existing ancient Church was not taken in the Edavaka Pothuyogam. c. the decree of declaration that, the Central Committee, Block Committee and the Family Units under the St. Augustine's Church are not properly constituted and hence no manner of right or authority to represent the will of the majority of the Parishioners. d. Permanent prohibitory injunction restraining the defendants 1 to 4 from dismantling the ruined structures lying on the western side of the St. Augustine's Church, Aroor before the panel of expert civil structural engineers deputed by this Hon'ble Court, inspect the premises to find out the cause of destruction of the same at the time of construction. 2. The petitioner filed Ext P15 application to depute a O.P.(C)No.668 of 2016 2 commissioner to ascertain the following facts. i. Inspect and report the depth and size of the piles and its numbers available in the plaint schedule property. ii. Inspect and report the length of such piles. iii. Inspect and report the depth at which the granite stone base is available and the depth at which the minimum length of piling is to be done for the construction of the structure available in the property. iv. Inspect and report the cause of destruction of the church especially on the basis of the ruined structures available in the plaint schedule property. ## v. Such other and further points sought to be noted at the time of inspection. By Ext P18 order the learned Munsiff has dismissed it. This is challenged. 3. Heard learned senior counsel appearing on either side. 4. Four reliefs are prayed for in the suit. Reliefs (a) to (c) relate to the old church building. Prayer (d) alone relates to the building under construction. Only this relief is relevant in this Original petition. The petitioner's commission application was dismissed for the following reasons. 1) For adjudication of the dispute in the suit the matters sought to be ascertained in the commission application are irrelevant, and 2) the High Court has directed the trial court to dispose of the O.P.(C)No.668 of 2016 3 suit before the court closes for summer vacation, i.e, on 8.4.2016. 5. The prayer (d) in the plaint which alone is relevant for the present purpose is to issue a perpetual injunction prohibiting the defendants concerned from 'dismantling the ruined structures' of the new church building before a panel of expert civil engineers which may be appointed by the trial court inspects the premises to ascertain the cause of collapse of a part of the building during its construction. What is the purpose for which the cause of collapse of the new church building should be ascertained? This is not disclosed anywhere in the pleadings. No relief other than relief (d) is prayed for in the suit relating to the new church building. I wonder how such a relief can be prayed for in a suit. Such relief can be prayed for only in an interlocutory application. A civil court is not a fact finding authority like Commission appointed under the Commission of Enquiry Act. Its function is to adjudicate disputes between the parties to the proceedings. The trial court has not been called upon to adjudicate any dispute relating to the new church building. This is very relevant in the nature of the case. 6. There was a proceedings before the District Magistrate concerned in respect of the construction of the new building. Ext R10(a) is a copy of the proceedings of the District Magistrate dated 29.9.2015. In unequivocal terms it is mentioned in the order that the petitioner had no objection to the construction of the new O.P.(C)No.668 of 2016 4 church building. 7. The suit was instituted in November 2013. The petitioner had filed a commission application. The report was filed on 10.12.2013. Thereafter, for more than two years he did not make any request to appoint a commissioner. On 13.10.2015 in O.P.No.2066 of 2015 filed by the very same petitioner this court directed the trial court to dispose of the suit before 8.4.2016, on which day the court closes for summer vacation. After about 3 ½ months of the passing of the said judgment the petitioner filed the commission application in which the impugned order was passed by the trial court. That commission application was filed when the period fixed by this court for disposal of the suit was about to expire. It was dismissed on 26.2.2016 and the suit was posted to 1.3.2016, on which date the suit was adjourned to 8.3.2016 for trial. Two days later he filed this Original petition. 8. I have no doubt that the points sought to be ascertained by the commissioner are not at all relevant as rightly held by the trial court. The petitioner had sufficient time to file a commission application (if at all it is maintainable), but he did not. I have no doubt that it is with malafide intention he filed the commission application. A discerning eye can see that though there is no prayer in the suit to prohibit construction of the new church building, that is the definite attempt of the petitioner. He wants to achieve indirectly O.P.(C)No.668 of 2016 5 what he cannot achieve directly. As the commission application was filed with malafide intention he is liable to pay costs. Both parties engaged senior counsel. The cost is fixed at Rs.20,000/-. In the result, this Original Petition is dismissed with costs, which is fixed at Rs.20,000/-(Rupees twenty thousand only). ## Sd/- **K.ABRAHAM MATHEW JUDGE** cms /True copy/ P.S.to Judge