Malankara Orthodox Syrian Church Catholicate Palace, Devalokam, Muttambalam Village, Kottayam v. Eldho Basil and Others (OP(C) No.259 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 ``` ## **`OP(C) NO. 259 OF 2022`** ``` (AGAINST THE ORDER DATED 27.1.2022 IN I.A.NOS.1/2022 & ``` ``` 2/2022 IN O.P.NO.10/2022 OF THE District COURT, KOTTAYAM) ``` ## **`PETITIONERS/RESPONDENTS 1 TO 3:`** - `1 THE MALANKARA ORTHODOX SYRIAN CHURCH CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM-686 033,REPRESENTED BY ITS SABHA SECRETARY, ADV.BIJU OOMMEN, AGED 52 YEARS, S/O.OOMMEN,CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE,KOTTAYAM.` - `2 THE MALANKARA SYRIAN CHRISTIAN ASSOCIATION, MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038, REPRESENTED BY ITS SECRETARY, (PRESENTLY ADV.BIJU OOMMEN, AGED 52 YEARS)` ``` 3THE MANAGING COMMITTEE, THE MALANKARA SYRIAN CHRISTIAN ASSOCIATION, MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038, REPRESENTED BY ITS SECRETARY ADV.BIJU OOMMEN. ``` ``` BY ADVS.SRI.P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HANI P.NAIR HARIKRISHNAN S. ``` O.P.(C)No.259 of 2022 2 ## **`- RESPONDENTS/PETITIONERS & RESPONDENTS 4,5&6:`** - `1 ELDHO BASIL, AGED 36 YEARS S/O.E.M.PAULOSE, ETTONNIL HOUSE, PIRAVOM,MUVATTUPUZHA, ERNAKULAM PIN – 686664.` - `2 ELDHO THOMAS, AGED 24 YEARS S/O.THOMAS,EARETHU HOUSE, PIRAVOM, MUVATTUPUZHA, ERNAKULAM PIN – 686664.` - `3 CIJOE M.P., AGED 48 YEARS S/O.MATHEW P.V. PLAKUNNEL HOUSE, THODUPUZHA P.O., THODUPUZHA (TALUK VILLAGE), IDUKKI DISTRICT, PIN – 685584.` - `4 AKHIL CHERIAN, AGED 27 YEARS S/O.CHERIAN GEORGE, POOCHAKUZHIYIL HOUSE, MUTTOM P.O., THODUPUZHA, PIN – 685587.` - `5 THE HOLY EPISCOPAL SYNOD OF MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038, REPRESENTED BY ITS SECRETARY, H.G. YOHANON MAR DIASCOROSE,AGED ABOUT 65, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE,KOTTAYAM, PIN – 686038.` - `6 H.G.KURIAKOSE MAR CLEEMIS, AGED 70 YEARS HOLY EPISCOPAL SYNOD OF MALANKARA ORTHODOX SYRIAN CHURCH,CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE,KOTTAYAM, PIN – 686038.` O.P.(C)No.259 of 2022 3 - `7 MORAN MAR BASELIOS MARTHOMA MATHEWS III AGED 65 YEARS, THE MALANKARA ORTHODOX SYRIAN CHURCH,CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE,KOTTAYAM, PIN – 686038.` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C)No.259 of 2022 4 ## **JUDGMENT** Challenge in this original petition filed under Article 227 of the Constitution of India is to the common order dated 27.1.2022 in I.A.Nos.1/2022 & 2/2022 in O.P.No.10/2022 passed by the District Court, Kottayam. Respondents 1 to 4 filed O.P.No.10 of 2022 under Section 92 of the Code of Civil Procedure (CPC), seeking leave to institute a suit for declaring that the decision of the Episcopal Synod taken on 16.9.2021 electing and nominating the Catholicos and Malankara Metropolitan of the first petitioner Church as ultra vires and also for declaring the decision taken on 17.9.2021 by the Managing Committee of the Malankara Association as null and void. 2. The respondents filed applications for amending the petition to incorporate the events that occurred after the filing of the original petition by way of I.A.Nos.1 & 2 of 2022. The District Court, Kottayam allowed both the applications through a common order. 3. Heard Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioners and Sri.Dinesh R.Shenoy, the learned counsel appearing for the respondents. 4. The learned Senior Counsel for the petitioners submitted as follows:- O.P.(C)No.259 of 2022 5 (1) As there is no provision for amendment of a petition filed under Section 92, CPC, the applications to amend the original petition are not maintainable. (2) As the proposed plaint has not been registered, the proposed amendments will become otiose. (3) The proposed amendments will change the nature and character of the proceedings apart from introducing new causes of action alleged to have arisen after the institution of the proceedings. 5. The learned counsel appearing for the respondents submitted as follows:- (1) The provisions of Order VI Rule 17 can be pressed into service even in proceedings other than the original suit as per Section 141, CPC. (2) Even with the aid of Section 151, CPC, the Court is competent to incorporate amendment in a petition filed under Section 92, CPC. (3) If the amendments are not permitted to be incorporated at the stage of considering the question of leave, the respondents will not get an opportunity to incorporate the proposed amendments in view of the principle that a suit under Section 92, CPC, must be limited to matters included in the sanction and it is not competent to the Court to enlarge the O.P.(C)No.259 of 2022 6 scope of the suit and grant reliefs other than those included in the sanction. 6. The questions that arise for consideration are; - (a) Is Order VI Rule 17 of CPC applicable to proceedings under Section 92, CPC ? - (b) Whether the impugned order resulted in injustice to the petitioners warranting interference of this Court under Article 227 of the Constitution of India. 7. A petition under Section 92, CPC, is a 'Miscellaneous Proceeding' as provided under Section 141, CPC. Petition for leave under Section 92, CPC, is to be filed as an original petition as provided in Rule 56 of Civil Rules of Practice. Such a petition is to be numbered as an original petition, and a suit is to be registered and numbered only when it is validly instituted after leave is granted. 8. As the first question relates to the applicability of Order VI Rule 17, CPC, in a proceeding under Section 92, it is profitable to extract the relevant rule. Rule 17 of Order VI reads thus:- “ **17. Amendment of pleadings.** —The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: O.P.(C)No.259 of 2022 7 Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 9. As per Order VI Rule 1, ‘pleading’ shall mean plaint or written statement. 10. The learned Senior Counsel relying on the definition of ‘pleading’ as provided in Order VI Rule 1 contended that what is contemplated in the Rule is amendment of 'pleadings' in the plaint or written statement and therefore, in the case of a petition under Section 92, CPC, as the plaint has not been registered no amendment as provided in the Rule is possible. 11. In order to address the arguments canvassed by the learned Senior Counsel, it is necessary to refer to Section 141, CPC, which reads thus:- “ **141. Miscellaneous proceedings** .—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. [ **Explantion** .— In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]” (emphasis added) 12. As per Section 141, CPC, the procedure provided in the Code in regard to suits shall be followed as far as it can be O.P.(C)No.259 of 2022 8 made applicable in all proceedings in any Court of civil jurisdiction. 13. In **Ram Chandra Aggarwal and Another** v. **State of U.P. and Another (1966 KHC 727),** the Apex Court observed that the expression “civil proceeding” in Section 141, CPC is not necessarily confined to an original proceeding, it also applies to a proceeding which is not an original proceeding. 14. A Division Bench of this Court in **Prof.Meeran Maluk Mohammed S.** v. **Muslim Association [2017 (1) KHC 738 (DB)]** held that the `proceedings’ referred to in Order VI Rule 17 should mean a pre-suit proceeding also and, therefore, an application thereunder can be considered and decided in a proceeding for leave under Section 92(1) CPC. In all fairness the learned Senior Counsel placed this decision before the Court and contended that it should be treated as a decision rendered in per incuriam as it is not possible to reconcile its ratio with the statutory provision. Going by the mandate of Section 141, CPC, and the law declared by the Apex Court in **Ram Chandra Aggarwal** (supra) I am unable to agree with the argument of the learned Senior Counsel. 15. This Court in **Ranjithmon** v. **Mary (2011 (3) KLT 33)** held that the expression “proceeding in a suit” applies not only to pleadings as defned in R.1 of O.VI of the Code of Civil O.P.(C)No.259 of 2022 9 Procedure but to any other proceeding or afdavit or statement or paper presented to the Court. The civil court that has to deal with a suit or proceeding would have all the inherent powers to determine the questions involved in the suit or proceedings. The necessary conclusion is that an application under Order VI Rule 17 can be considered and decided in a proceeding for leave under Section 92, CPC. 16. In **Prabhakar Parashuramji Pandit** v. **Vikram Sugar Mills Ltd. (AIR 1963 MP 120)** the Madhya Pradesh High Court, while dealing with a matter coming under the Indian Companies Act, 1913 held that by virtue of Section 141 CPC, the procedure provided in the Code in regard to suits shall be followed so far as it can be applicable, in all proceedings in any court of Civil jurisdiction. 17. The learned counsel for the respondents raised another point that deserves to be noticed. It is submitted that if the proposed amendments are not incorporated, the respondents will be incapacitated to agitate those issues in the suit if leave is granted. The contention of the learned counsel for the respondents has got relevance when viewed on the touchstone of the principles implicit in the object of Section 92, CPC. 18. The main purpose of Section 92, CPC, is to protect public trusts of a charitable or religious nature from being O.P.(C)No.259 of 2022 10 subjected to harassment by suits being filed against them. This condition was imposed to prevent an indefinite number of reckless and harassing suits from being brought against trustees by different persons interested in the trust. The District Court or the Advocate-General as the case may be has to satisfy that there is a prima facie case of either a breach of trust or of the necessity of obtaining directions from the Court. The leave as provided under Section 92, CPC, is considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the Court having to be obtained before the suit is instituted. [See: Vidyodaya Trust v. Mohan Prasad R. and Others (2008 (2) KHC 35); Swami Parmatmanand Saraswathi and Another v. Ramjit Tripathi and Another (1974 KHC 498); Mulla, the Code of Civil Procedure 19[th] Edition Volume 1, page 928.] 19. The principle of granting leave under Section 92, CPC, highlights the requirement of the close correspondence between the suit instituted and the suit sanctioned. Sanction or leave is a pre-requisite for setting up a pleading and seeking reliefs based on it. Judicial precedents highlight that a suit under Section 92, CPC, must be limited to matters included in the sanction, and it is not competent to the Court to enlarge the O.P.(C)No.259 of 2022 11 scope of the suit and grant reliefs other than those included in the sanction (See: Bapugouda Yadgouda Patil v. Vinayak Sadashiv Kulkarni [(1941) 43 BOMLR 706); Abdul Rehman Bapoo Saheb v. Cassum Ebrahim [(1911) 13 BOMLR 583]). Viewed on the touchstone of the principles discussed above, I find force in the argument of the learned counsel for the respondents. 20. The learned Senior Counsel would further contend that the amendments sought even if allowed, would become otiose since the respondents have prayed for amendments in the original petition and not in the proposed plaint to be annexed along with a petition under Section 92, CPC. The learned counsel relied on the decision of the Apex Court in **Swami Shivshankargiri Chella Swami and Another** v. **Satya Gyan Niketan and Another (2017 KHC 6158)** to contend that it is the statutory duty of the Court to examine whether the plaint is so annexed with the application under Section 92, CPC or not. According to the learned Senior Counsel, in the case of a proceeding under Section 92, CPC, a proposed plaint shall be annexed along with the application for leave. The learned counsel for the respondents submitted that along with the petition under Section 92, CPC, the proposed plaint was also produced. O.P.(C)No.259 of 2022 12 21. The proposed plaint is not part of the records as the plaint has not been registered. This Court is of the view that once permission is granted to incorporate amendments in the original petition, granting permission to incorporate corresponding amendments in the proposed plaint is not an illegality or irregularity. 22. The learned Senior Counsel then submitted that the proposed amendments would change the fundamental nature and character of the proceedings apart from introducing new causes of action alleged to have arisen after the institution of the proceedings. The reasoning applied by the court below in permitting the amendments as contained in paragraphs 6 to 8 of the impugned order read thus:- “6. The case records show that, on 11.10.2021, on which date, the Original Petition was filed, my learned predecessor had ordered to transfer the case to be heard by the Principal Sub Court, Kottayam and accordingly the same was transferred. The proceedings of the Principal Sub Court show that, the petitioner was heard on 11.10.2021 and 12.10.2021 and thereafter, posted for objection/counter affidavit of the respondents. No hearing was conducted thereafter. 7. The allegation of the petitioners herein is that, in the mean time between 13.10.2021 and 21.10.2021, the respondents 1 to 5 had conducted an illegal meeting on 14.10.2021 and approved the decision dated 16.09.2021 of the Episcopal Synod, electing the additional sixth respondent as Malankara Metropolitan, and consequent to which, he had assumed charge on 15.10.2021. The Original Petition seemingly is praying for declaring the said decision of the Episcopal Synod taken on 16.09.2021 as ultra vires and null and void and also for declaring the decision taken by the Managing Committee of the Malankara Association dated 17.09.2021 ultra vires and as null and void. O.P.(C)No.259 of 2022 13 8. It appears from the objection filed by the respondents 1 to 4, that, they do not specifically dispute or deny that, the decision of the Episcopal Synod dated 16.09.2021 was ratified in the meeting held on 14.10.2021. But their contention is that, nothing illegal was done by these respondents. Also, it is not denied that, the additional sixth respondent was elected as the Metropolitan of Malankara. The additional sixth respondent though, was served with notice, did not file any objection. It is alleged in the affidavits supporting the petitions that, the circumstance that was prevalent at the time of the filing of the Original Petition has got changed, at the instance of the original respondents. Admittedly, at the time when the new developments have arose, the Original Petition was pending consideration of the Principal Sub Court, Kottayam. Therefore, naturally, for a proper adjudication, the new facts need to be added to the Original Petition for which, amendment appears to be necessary.” 23. After carefully examining the materials this Court is of the view that the proposed amendments will not change the character of the suit or cause any prejudice to the petitioners. 24. The power under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power. 25. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are satisfied-- (1) the error is manifest or apparent on the face of the proceeding such as when it is based on clear O.P.(C)No.259 of 2022 14 ignorance or utter disregard of the provisions of law; and (2) a grave injustice or gross failure of justice occasioned thereby. In the above circumstances, I find no reason to interfere with the impugned order. The original petition is dismissed. The interim stay granted by this Court stands vacated. Sd/- **K.BABU Judge** TKS O.P.(C)No.259 of 2022 15 ## **`APPENDIX OF OP(C) 259/2022`** ## `PETITIONERS’ EXHIBITS:-` ``` Exhibit P 1TRUE COPY OF ORIGINAL PETITION NO.16 OF 2021 FILED BEFORE THE SUB COURT, KOTTAYAM. ``` ``` Exhibit P 2TRUE COPY OF COUNTER AFFIDAVIT IN O.P. NO.16 OF 2021 FILED BY THE PETITIONERS/ RESPONDENTS 1 TO 3 BEFORE THE SUB COURT, KOTTAYAM. ``` ``` Exhibit P 3TRUE COPY OF I.A.NO.1 OF 2021 IN O.P.NO.16 OF 2021 FILED BY THE RESPONDENTS 1 TO 4 PETITIONERS BEFORE THE SUB COURT, KOTTAYAM. ``` ``` Exhibit P 4TRUE COPY OF I.A.NO.2 OF 2021 IN O.P.NO.16 OF 2021 FILED BY THE RESPONDENTS 1 TO 4 /PETITIONERS BEFORE THE SUB COURT, KOTTAYAM. ``` ``` Exhibit P 5TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN EXHBIT.P3. ``` ``` Exhibit P 6TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN EXHBIT.P4. ``` ``` Exhibit P 7TRUE COPY OF OBJECTION FILED BY THE RESPONDENT NO.5 IN EXHBIT.P3. ``` ``` Exhibit P8TRUE COPY OF OBJECTION FILED BY THE RESPONDENT NO.5 IN EXHBIT.P4. ``` ``` Exhibit P9TRUE COPY OF COMMON ORDER DATED 27-01-2022 IN I.A.NO.1 OF 2021 AND I.A.NO.2 OF 2021 IN O.P.NO.10 OF 2022 OF PRINCIPAL DISTRICT COURT, KOTTAYAM. ``` TKS