Malankara Orthodox Syrian Church & Others v. Cijo M.P & Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ## & THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943 TR.APPEAL(C) NO. 1 OF 2022 (AGAINST THE ORDER DATED 10.01.2022 IN Tr.PC No.789/2021) ## APPELLANTS/RESPONDENTS 1 TO 5: - 1 THE MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038, REPRESENTED BY ITS SABHA SECRETARY, ADV.BIJU OOMMEN, AGED 52, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM- 686038 - 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, S/O.OOMMEN - 3 THE 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 - 4 THE HOLY EPISCOPAL SYNOD OF MALANKARA ORTHODOX SYRIAN CHURCH CATHOLICATE PALACE, DEVALOKAM, 2 Transfer Appeal(C) No.1/2022 MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038, REPRESENTED BY ITS SECRETARY, H.G.YOHANON MAR DIASCOROSE, AGED 65, CATHOLICATE PALACE,DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686038 5 H.G. KURIAKOSE MAR CLEEMIS, AGED 70 YEARS, HOLY EPISCOPAL SYNOD OF MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE,KOTTAYAM - 686038 BY ADVS.S.SREEKUMAR P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA AJAY BEN JOSE MANJUNATH MENON R.GITHESH SACHIN JACOB AMBAT HANI P.NAIR ANNA LINDA V.J HARIKRISHNAN S. ## RESPONDENTS/PETITIONERS 1 & 2 AND RESPONDENTS 6 TO 8: - 1 MR.CIJOE M.P AGED 48 YEARS S/O.MATHEW P.V., PLAKUNNEL HOUSE, THODUPUZHA P.O., THODUPUZHA (TALUK VILLAGE), IDUKKI DISTRICT, PIN - 685584 - 2 MR.AKHIL CHERIAN AGED 27 YEARS S/O.CHERIAN GEORGE, POOCHAKUZHIYIL HOUSE, MUTTOM P.O., THODUPUZHA, PIN - 685587 - 3 MORAN MAR BASELIOS MARTHOMA MATHEWS III, 3 Transfer Appeal(C) No.1/2022 AGED 65 YEARS THE MALANKARA ORTHODOX SYRIAN CHURCH, CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE, KOTTAYAM - 686038 - 4 ELDHO BASIL AGED 36 YEARS - S/O.E.M.PAULOSE, ETTONNIL HOUSE, PIRAVOM, MUVATTUPUZHA, ERNAKULAM - 686664 - 5 ELDHO THOMAS AGED 24 YEARS - S/O.THOMAS, EARETHU HOUSE, PIRAVOM, MUVATTUPUZHA, ERNAKULAM - 686664 ## BY ADV.SRI.DINESH R.SHENOY THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON 21.01.2022 DELIVERED THE FOLLOWING: 4 Transfer Appeal(C) No.1/2022 ## P.B.SURESH KUMAR & C.S.SUDHA, JJ. -------------------------------------------------- ## Transfer Appeal(C) No.1/2022 ------------------------------------------Dated this the 21[st] day of January, 2022 ## J U D G M E N T ## C.S.Sudha, J. This appeal filed under Section 5(1) of the Kerala High Court Act is against the order dated 10.01.2022 in Transfer Petition (C)No.789/2021. The appellants herein are the respondents and the respondents herein, the petitioners in the Transfer Petition. The parties will be referred to as described in the Transfer Petition. 2. The Transfer Petition was filed seeking transfer of O.P.No.16/2021 on the file of the Principal Sub Court, Kottayam. The said O.P. initially filed before the District Court, Kottayam, is one under Section 92 CPC seeking leave to institute a suit against the respondents. The District Judge, Kottayam transferred 5 ## Transfer Appeal(C) No.1/2022 O.P.No.16/2021 to the Principal Sub Court on administrative grounds. According to the petitioners, in spite of elaborate and detailed arguments, running into hours being made on three posting dates, no order was passed by the learned Sub Judge, though it was brought to his notice that reliefs sought for are urgent. Hence, they lost faith in the court and moved the petition for transfer. 3. In the Transfer Petition though notice was served on the respondents, they failed to appear and contest the matter. By order dated 10.01.2022 the learned single Judge allowed the prayer and directed transfer of O.P.No.16/2021 pending before the Principal Sub Court, Kottayam, to the District Court, Kottayam, with a direction to the latter court to dispose it within a period of 15 days from the date of receipt of or production of a copy of the order. Aggrieved by the said order, the respondents in the Transfer Petition are before this Court in the present appeal. 6 Transfer Appeal(C) No.1/2022 4. Heard Sri.S.Sreekumar, the learned Senior counsel instructed by Adv. Martin Jose for the appellants and Sri. Dinesh Shenoy, the learned counsel for the respondents. 5. The respondents in the Transfer Petition who are the appellants herein contend that no case to transfer the case was made out. The allegations raised against the presiding officer in the Transfer Petition are baseless. A prayer for transfer of a case is not to be entertained on the mere asking or on the basis of unfounded allegations and mere apprehensions levelled against the presiding officer. Though the report of the presiding officer concerned was called for, the learned single Judge has not taken the same into consideration. The impugned order is against the settled principles of law on transfer of cases based on allegations of bias of the presiding officer. The respondents in support of their arguments rely on a Division Bench decision of this Court in Transfer Appeal (C)No.10/2021 (Abraham Thomas Puthooran 7 Transfer Appeal(C) No.1/2022 vs. Manju Abraham ) and also to the decision of the Apex court in Gurcharan Dass Chadha vs. State of Rajasthan (1966 KHC 624). 6. Per contra, the petitioners contend that there is no infirmity in the impugned order of the learned single Judge. They rely on a Full Bench decision of this court in Balan vs. Sivagiri Sree Narayana Dharma Sangham Trust (2005 KHC 1860) in which it has been held that when an appeal is filed against the order passed under Section 24 by a Single Judge of the High Court, Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave and substantial injustice. 7. The petitioners in the Transfer Petition do not seem to have a case that the presiding officer is prejudiced or biased. Their only grievance seems to be that the officer is not passing any orders in O.P.No.16/2021. According to them, though 8 Transfer Appeal(C) No.1/2022 detailed arguments were advanced on 11.10.2021, 12.10.2021 and 13.10.2021, no orders were passed by the court. In spite of the fact that the petitioners had brought to the notice of the court that the reliefs sought for were urgent and precedents had also been cited in support of the prayers in the petition, the learned Sub Judge without passing any orders, deliberately, negligently and in a casual manner kept adjourning the case without even recording what had transpired in the court. The additional documents that were produced by the petitioners were not noted or recorded in the proceedings sheet. The officer also failed to record the fact that the petitioners had made detailed arguments running into several hours. The refusal/failure of the presiding officer to pass orders, raised apprehension in the mind of the petitioners that they would not get justice from the said court and hence the reason why they moved the Transfer Petition. 8. The learned single Judge had called for a report 9 ## Transfer Appeal(C) No.1/2022 from the Presiding officer of the Sub Court, Kottayam, who has submitted a report dated 23.12.2021, which reads- “OP No.16/2021 was made over from the Hon'ble District Court to this court on 11/10/2021. OP is filed u/s 92 of Civil Procedure Code to grant leave to the petitioner to file a suit in connection with the election of Catholicose and Malankara Metropolitan to be held on 14/10/2021. Original Petition was taken in the Bench on the same day and petitioners were heard in part. Respondent's counsel was also present before the court and both sides were heard also heard on 12/10/2021. Respondents contended that petitioners except one petitioner is not having any interest in the trust and prayed for objection and OP was posted to 13/10/2021. On 13/10/2021, respondents 1 to 3 filed objection and the 4th respondent prayed one day's time for filing objection. OP was filed with prayer to grant permanent prohibitory injunction in the suit in connection with the election of Catholicose and Malankara Metropolitan which was to be held on 14/10/2021. As the OP was filed only three days prior to the date of election, no injunction was granted and the case was posted for return of notice of Respondent No.5 and for filing objection of Respondent No.4 to 21/10/2021. Thereafter case was adjourned to 02/11/2021. Both sides did not 10 ## Transfer Appeal(C) No.1/2022 press for hearing of OP and prayer of the OP has became infructuous. Only on 16/12/2021 the petitioner in the OP filed a today moving petition with an advance petition which was heard on the same day and posted to 18/12/2021 as prayed by the petitioner. On 18/12/2021 both sides were present and OP was advanced to that date. Counsel for petitioner submitted that an amendment petition, impleading petition to implead the additional petitioners and to implead present Catholicose as additional respondents is also filed. Respondents prayed for filing objection. The impleading petitions and amendment petition are now posted to 04/01/2021 for hearing on the maintainability. It will take atleast a period of the two months for passing final order in Original Petition.” 9. No reason(s) have been given in the impugned order for allowing the prayer in the Transfer Petition. There is also no reference in the impugned order to the aforesaid report. We fully agree with the argument advanced by Sri.S.Sreekumar, the learned Senior counsel to the effect that the impugned order has been passed ignoring the precedents of the Hon'ble Supreme Court on the point. The Division Bench decision referred to by the 11 Transfer Appeal(C) No.1/2022 respondents has referred to a number of decisions of the Apex Court which deprecated the practice of transferring cases from one court to another on the ground of unsubstantiated allegations raised against the presiding officer. Here as noticed earlier, the petitioners have no case that the officer is biased or prejudiced against them. Their only grievance is that the officer is not passing any orders. If that be so, they could have very well moved this Court seeking a direction to the court concerned to dispose of the matter within a specified time limit instead of moving for a transfer of the case. As held in Gurcharan Dass Chadha (supra), a party is entitled to transfer of a case if he shows circumstances from which it can be inferred that he entertains an apprehension that justice would not be done. This apprehension must be reasonable in the circumstances alleged. A mere allegation that there is apprehension that justice would not be done in a given case will not suffice. The court which considers the request of 12 Transfer Appeal(C) No.1/2022 transfer has a further duty to see whether the apprehension is reasonable or not. That being the position, we are of the opinion that the learned Single Judge went wrong in allowing the transfer petition, as no grounds for the same were made out nor are the grounds referred to in the impugned order. 10. It is true that the learned Sub Judge ought to have passed orders, as urgent reliefs had been sought for. In the report the officer says that the relief of injunction as sought for by the petitioners could not have been granted as the petition had been filed just three days prior to the election. If that be so, he ought to have passed orders to that effect instead of adjourning the matter, which even according to him led to the reliefs sought for becoming infructuous. Be that as it may, though the impugned order is without any reason(s), we refrain from setting aside the same in the light of the Full Bench decision in Balan (supra). Pursuant to the impugned order, we are told that the learned Sub 13 Transfer Appeal(C) No.1/2022 Judge has already transmitted the case records in O.P.No.16/2021 to the District Court, Kottayam, and that the latter court has issued notice to the parties and that the matter now stands posted for hearing. That being the position, though we disagree with the relief granted in the impugned order, we do not want the matter to be delayed any further or to make a mockery of the proceedings by again ordering re-transfer of the case to the Sub Court. The District Court may dispose of the matter at the earliest. The appeal is disposed of accordingly. Pending applications, if any, shall stand disposed of. Sd/- ## **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/