Mar Miletius Yuhanon v. Mar Thomas Dionysius and others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** **RFA.No.570 OF 2004** **AGAINST THE JUDGMENT IN OS 33/1998 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/IST PLAINTIFF IN O.S.NO.33/1998:** **MAR MILETIUS YUHANON, AGED 46, S/O.JOHN, MURIMACKIL, METROPOLITAN, THRISSUR DIOCESE, RESIDING AT 'GEDSEEMON', BISHOP'S HOUSE, MANNUTHY, THRISSUR.** **BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY** ## **RESPONDENTS-DEFENDANTS IN OS.NO.33/1998 AND 2ND PLAINTIFF IN OS.NO.33/1998:** - **1 MAR THOMAS DIONYSIUS, AGED ABOUT 74, S/O.MATHAI, METROPOLITAN, MAR IGNATIUS SEMINARY, KOTHAMANGALAM.** - **2 MAR GEEVARGHESE GREGORIOUS AGED ABOUT 74, S/O.MATHU, METROPOLITAN, MAR JULIUS SEMINARY, PERUMPALLY P.O., MULANTHURUTHY.** - **3 YUHANON MAR PHELIXINOS, AGED ABOUT 61 S/O.JACOB, METROPOLITAN, BISHOP'S HOUSE,, MEENANGADI P.O., WYANAD.** - **4 MAR THOMAS THEMOTHIOS, AGED ABOUT 56 S/O.KURUVILLA, METROPOLITAN, VETTICKAL P.O.,, MULANTHURUTHY.** - **5 MAR JOSEPH GREGORIOUS, AGED 43 S/O.VARGHESE, METROPOLITAN, KYOMTA SEMINARY,, THRUVANKULAM.** - **6 RE.MATHAI COR EPISCOPA, AGED ABOUT 76 S/O.OUSEPH, POOVANTHARA HOUSE,, MAMBRA P.O., KORATTY, TRICHUR DISTRICT.** - **7 REV. FR.A.P.THOMAS, AGED ABOUT 48 S/O.POULOSE, ADATTUKUDIYIL HOUSE,, KURUMALA P.O., VATTULLY, CHELAKKARA VIA,, TRICHUR DISTRICT.** - **8 REV.FR.C.M.ABRAHAM, AGED ABOUT 51 S/O.MATHAI, CHATHOTH HOUSE, KARUMATHARA P.O.,, EDAKADU VIA, THRISSUR.** - **9 REV.FR.MATHEW ABRAHAM, AGED ABOUT 41 S/O.ABRAHAM, AZHANTHARA HOUSE, KONGAD P.O.,, PALAKKAD DISTRICT.** **RFA.Nos.570 & 571 OF 2004** **2** **10 MAR THOMAS ATHANASIUS, AGED 58 S/O.FR.YOHANNAN PUTTANIL, Metropolitan,, BISHOP HOUSE, CATHEDRAL ROAD, MOOVATTUPUZHA.** **R4-5 BY ADV. SRI.P.V.ELIAS R6, R8 BY ADV. SRI.MATHEWS J.NEDUMPARA R6, R8 BY ADV. SRI.P.BIJIMON** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2020, ALONG WITH RFA.571/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.Nos.570 & 571 OF 2004** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** ## **RFA.No.571 OF 2004** ## **AGAINST THE JUDGMENT IN OS 16/2000 OF IST ADDITIONAL DISTRICT COURT, ERNAKULAM** **APPELLANT-PLAINTIFF IN OS.NO.16/2000:** **YUHANON MAR MILETIUS, AGED 48 S/O. JOHN MURIMACKIL, Metropolitan,, THRISSUR DIOCESE, RESIDING AT 'GEDSEEMON', BISHOP'S HOUSE, MANNUTHY, THRISSUR.** **BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY** ## **RESPONDENTS-DEFENDANTS IN OS.NO.16/1998:** |**1**|**THOMAS MAR DIONYSIUS, AGED ABOUT 74**| |---|---| ||**S/O. MATHU, METROPOLITAN, MAR IGNATIUS SEMINARY,,**| ||**KOTHAMANGALAM.**| |**2**|**YUHANON MAR PHELIXINOS, AGED ABOUT 61**| ||**S/O. JACOB, METROPOLITAN, BISHOP'S HOUSE,, MEENANGADI P.O.,**| ||**WAYANAD.**| |**3**|**THOMAS MAR THEMOTHIOS, AGED ABOUT 56**| ||**S/O. KURUVILLA, METROPOLITAN, VETTICKAL P.O.,,**| ||**MULANTHURUTHY.**| |**4**|**JOSEPH MAR GREGORIOUS, AGED 43**| ||**S/O. VARGHESE, METROPOLITAN, KYOMTA SEMINARY,,**| ||**THRUVANKULAM.**| **R3-4 BY ADV. SRI.P.V.ELIAS** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2020, ALONG WITH RFA.570/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.Nos.570 & 571 OF 2004** **4** ## **CR** ## **J U D G M E N T** The jurisdictional and operational ambit and purlieus of Section 92 of the Code of Civil Procedure Code (CPC for short) has been called into question in these appeals; and adscititously - more as a necessary corollary - the powers of this Court Under Order XLI Rule 33 of the CPC, to dispose of suits finally, are also put in focus. 2. The appellant, who is the plaintiff in the suits, from which these appeals arise, asserts that he is the Metropolitan of the Thrissur Diocese of the Malankara Orthodox Syrian Church (hereinafter referred to as the 'Malankara Church' for short). 3. The appellant filed O.S.No.33/1998 (from which RFA.No.570/2004 arises) alleging that the defendants therein, who are the various Metropolitans and priests stated to be owing allegiance to a faction of the Malankara Church called the “Patriarch faction”, were attempting to interfere with his rights as the Metropolitan of the Thirssur Diocese and therefore, sought the following reliefs: **RFA.Nos.570 & 571 OF 2004** **5** “a) to declare that the decisions purported to have been taken in the alleged meeting of “Akhila Malankara Yacobaya Suriyani Christiani Palli Prathinidhi Yogam” convened and held by defendants at Puthencruz on 19.6.1997 are invalid, inoperative void abinitio and of no effect in so fact as they seek to authorises the 1[st] defendant to interfere in the affairs of the Trichur Diocese in the Malankara Church. b) to declare that the 1[st] defendant is not competent or entitled to claim to be the Metropolitan of the Trichur Diocese and not entitled to exercise any rights, duties or functions pertaining to the office the Metropolitan of the Trichur Diocese. c) to declare that defendants 1 to 5 are not competent or entitled, either individually or jointly to exercise any episcopal functions in, upon or concerning the churches and chapels in the Trichur Diocese and the Trichur Diocesan Head Quarters described in the plaint A schedule property; d) restrining by injunction defendants 1 to 5 from doing any action infringing upon the 1[st] plaintiff's rights as the Metropolitan of the Trichur diocese in the Malankara Church, or from interfering in any manner with the religious worship in and administration of the churches and chapels in the Trichur Diocese; e) restraining by injunction, the 1[st] defendant from issuing any kalpana to the churches and chapels in the Trichur Diocese purporting to appoint/transfer vicars or priests to the churches and chapels in the Trichur Diocese or from purporting to issue any kalpana claiming to be the Metropolitan of the Trichur Diocese in the Malankara Church; f) restraining by injunction defendants 1 to 9 their agents and partisans from interfering with the 1[st] plaintiff's peaceful possession, control and management of the Diocesan Head Quarters i.e. 'Ged Seemon' described in A schedule property. **RFA.Nos.570 & 571 OF 2004** **6** g) restraining by injunction defendants 6 to 9 their partisans and agents from interfering in any manner with the religious worship in the churches in the Trichur Diocese by vicars and priests appointed by and owing allegiance to the 1[st] plaintiff or from causing any obstruction to such vicars and priests or in any way interfering with the episcopal administration by the 1[st] plaintiff of the plaint listed churches in the Trichur Diocese in the Malankara Church. h) to allow the plaintiffs to realise all their costs from the defendants. i) to allow such further incidental, ancillary and consequential reliefs also.” 4. While the afore suit was pending, it transpires that the defendants therein and the Episcopal Synod of the “Patriarch faction” moved a resolution, leading to a decision to remove the plaintiff from the position of the Metropolitan of the Thrissur Diocese of the “Patriarch faction”, which, subsequently obtained the sanction and concurrence of the Patriarch of Antioch, who is the supreme head of the Universal Syrian Orthodox Church, through a 'Kalpana' ( decree) from him, dated 12.04.1999, in the following manner:- **RFA.Nos.570 & 571 OF 2004** **==> picture [378 x 426] intentionally omitted <==** **7** **RFA.Nos.570 & 571 OF 2004** **8** **==> picture [445 x 422] intentionally omitted <==** 5. The appellant contended that the afore 'Kalpana' of the Patriarch was illegal, inoperative and not binding on him and, therefore, filed O.S.No.16/2000 (from which RFA.No.571/2004 has arisen), arraying the four Metropolitans **RFA.Nos.570 & 571 OF 2004** **9** of the Patriarch faction as defendants (they were arrayed as defendants 1, 3, 4 and 5 in O.S.No.33/1998) seeking the following prayers: “i) Declaring that Kalpana No. E 143/99 dated 12[th] April 1999 issued by the Patriarch of Antioch is illegal, without jurisdiction, inoperative, invalid and void and not binding on the plaintiff. ii) Declaring that the alleged decisions, if any, of the alleged synod and alleged representative bodies referred to in Kalpana No. E 143/99 of the Patriarch are all null and void and not binding on the plaintiff; iii) Restraining by injunction the 1[st] defendant from exercising any powers pertaining to the office of the Metropolitan of the Thrissur Diocese in purported implementation of Kalpana No. E 143/99 dated 12[th] April 1999 of the Patriarch or doing anything under the cover of the said Kalpana interfering with the plaintiff's rights as Metropolitan of the Thrissur Diocese. iv) Restraining defendants 2 to 4 from interfering in any manner with the plaintiff's rights as the Metropolitan of the Thrissur Diocese under the cover of Kalpana No. E 143/99 dated 12.4.99 of the Patriarch. v) To recover the entire costs of these proceedings from the defendants. vi) To grant such other ancillary and incidental reliefs as this Hon'ble Court deem fit in the interest of justice.” 6. The defendants entered appearance and filed their counter pleadings, along with an application with a prayer to **RFA.Nos.570 & 571 OF 2004** **10** decide, as to whether the suits were maintainable, as a preliminary issue, since they had been filed, concededly, without the leave of the Court under Section 92 of the CPC, though instituted under Order I Rule 8 of the said Code. This application was considered by the Trial Court and by an order dated 04.08.2004, it was concluded that since granting of the reliefs in the suits “will have the effect of granting the reliefs mentioned in Section 92(1) of the CPC...... the two suits are bad for lack of sanction under Section 92 of the CPC.” 7. After the afore order was recorded by the Trial Court, it, thereafter, by separate judgment dated 08.09.2004, dismissed the suits holding: “it is bad for lack of sanction under Section 92 of the CPC”. The afore judgments of the Trial Court have been assailed by the appellant in these appeals. 8. I have heard Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.K.K.Appu, learned counsel appearing for the appellant in both cases; Sri.Mathews J. Nedumpara, learned counsel appearing for respondents 6 and 8 in RFA.No.570/2004 and Sri.P.V.Elias, learned counsel **RFA.Nos.570 & 571 OF 2004** **11** appearing for respondents 4 and 5 in RFA.No.570/2004, who are respondents 3 and 4 in RFA.No.571/2004. 9. As I have indited above, the only reason why the Trial Court dismissed the suits was because they had been filed without obtaining the leave of the Court under Section 92 of the CPC. The Trial Court has opined that even though the suits were both instituted under Order I Rule 8 of the CPC, the grant of reliefs as sought for therein “would have the effect of granting reliefs as are mandated under Section 92 of the CPC” and then proceeded to dismiss them. 10. Obviously, therefore, the aspect for evaluation before this Court at this stage is as to whether the Trial Court had erred in dismissing the suits finding that they are bad for not having obtained its leave under Section 92 of the CPC; and for this purpose, it is essential that this Court closely examine the prayers sought for, which have been extracted above in paragraphs 3 and 5. 11. As is apodictic from the prayers sought, what the appellant essentially tries to vindicate, in both the suits, is an individual right, as being the Metropolitan of the Thrissur **RFA.Nos.570 & 571 OF 2004** **12** Diocese of the Malankara Church and he seeks to protect it by way of consequential injunctions and declarations. In fact, the first among the suits, namely O.S.No.33/1998, was filed at a time when the 'Kalpana' of the Patriarch of Antioch had not been issued but the appellant anticipated it; and he, therefore, sought that the decision of the Episcopal Synod of the “Patriarch faction” do not inure to him adversely. However, while the said suit was pending, the impugned 'Kalpana' was issued by the Patriarch and the appellant, therefore, filed O.S.No.16/2000 seeking a declaration that it is without jurisdiction, invalid, void and not binding on him; with a resultant prayer for injunction restraining defendants 2 to 4 from interfering with his rights as the Metropolitan of the Thrissur Diocese of the Malankara Church. 12. Once the facts are as noticed above, I must say that this Court has the advantage of the affirmative declarations in law by the Hon'ble Supreme Court - as regards the nuances of Section 92 of the CPC - in **Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another [AIR 1974 SC 2141].** This judgment is a beacon light for me while **RFA.Nos.570 & 571 OF 2004** **13** proceeding on the adjudication as regards Section 92 of the CPC, particularly in the background of the facts involved, because, the unmistakable view of the the Hon'ble Court is that whenever a personal right is sought to be vindicated by a plaintiff through a civil process, Section 92 of the CPC will not apply; and that every Court is obligated to search for and ascertain the dominant purpose for which the suit has been instituted, though the corollary prayers may justify the grant of leave under Section 92 of the CPC. The afore declarations by the Hon'ble Supreme Court are available in paragraphs 10 and 11 of the said judgment, which deserves a full reading, for which purpose, I extract them as under: “10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the 'Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear **RFA.Nos.570 & 571 OF 2004** **14** that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92, (see Shankukham v. Govinda, AIR 1938 Mad 92; Tirumalai Devesthanams v Krishnayya, AIR 1943 Mad 466 (FB); Sugra Bibi v. Hazi Kummu Mia (1969) 3 SCR 83 = (AIR 1969 SC 884) and Mulla; Civil Procedure Code, (13[th] ed.) Vol.I, p.400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religions nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S.92. 11. We see no reason why the same principle should nto apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Kirshnabodhashram to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant **RFA.Nos.570 & 571 OF 2004** **15** purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that suit was brought to uphold the right of the beneficiaries of the trust, merely because the suit was filed by two more members of the public after obtaining the sanction of the Advocate General and claiming onr or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.” 13. The facts pleaded in the suits and the nature of the afore extracted prayers sought for therein, tested from the afore perspective, render it ineluctable that the appellant is dominantly seeking to protect his position as the Metropolitan of the Thrissur Diocese of the Malankara Church. Axiomatically, therefore, the findings of the Trial Court, that the suits are bad for want of leave under Section 92 of CPC, cannot appeal to this Court at all. 14. Furthermore, the reasons that weighed with the Trial Court in holding that leave under Section 92 of the CPC **RFA.Nos.570 & 571 OF 2004** **16** was necessary is recorded in paragraph 17 of the order dated 4/8/2004, which reads as under: “17. It is argued on behalf of the defendants that plaintiffs have styled the averments in the plaint and application under Cr. 1 Rule 8 CPC in such a manner to indirectly take out the suit from the ambit of Sec.92 of the CPC. According to them, the effect of allowing the relief will be to allow reliefs mentioned in Sec. 92 (1) (a), (b), (c), (cc) and (g). In reply to the argument advanced by the learned counsel appearing for the defendants it is submitted on behalf of the plaintiff that none of the reliefs mentioned in Clauses (a) to (h) are sought for in the suit. There is no prayer for the relief of removal of a trustee or appointment of a new trustee or for vesting any property in a trustee or any direction to a removed trustee to deliver possession of the trust property to the person entitled is sought for in the plaint. According to the learned counsel the suit is filed in his individual capacity for the vindication and enforcement of the plaintiff's individual or private right viz. his right to office. I have already stated that there are 37 parish churches coming within the Thrissur Diocese. If the suit is decreed the plaintiff may exercise his powers of a Diocesan Metropolitan as provided in 1934 constitution. He may appoint and transfer the vicars. He may approve or disapprove elections of the trustee and committee members of the parish churches. According to the learned counsel the said rights and powers are public rights and not the personal or private rights of the Metropolitan. Metropolitan should get the acceptance of the people to be able to exercise his powers. All these aspects will disprove the case of the plaintiffs **RFA.Nos.570 & 571 OF 2004** **17** that the suit is instituted only for the purpose of vindicating the private right. From the above it is very clear that the effect of granting the relief in the two suits will be having the effect of granting the reliefs mentioned in Sec.92(1) of the CPC. Hence the two suits are barred for lack of sanction u/s 92 C.P.C. Issues are answered accordingly. “ 15. It is limpid from the afore reasoning of the Trial Court that it has entered an opinion that leave under Section 92 of the CPC was necessary to make the suits maintainable because, if the suits are decreed, the appellant may exercise his powers of a Diocesan Metropolitan and he may appoint and transfer the Vicars as also that he may approve or disapprove elections of the Trustees and Committee members of the parish churches. In saying so, the Trial Court virtually accepts that the appellant/plaintiff seeks to protect his position as the Metropolitan of the Thrissur Diocese, but still dismissed them for the sole reason of want of leave under Section 92 of the CPC, because if he wins, he is likely to enforce his powers in such position. It is ineffable how the learned Trial Judge could have found so because, the dominant purpose for the appellant in having filed the suits was to vindicate his right to continue **RFA.Nos.570 & 571 OF 2004** **18** as the Metropolitan of the Thrissur Diocese of the Malankara Church and hence how he will exercise the powers vested with such position, if he is to win the suits, is of no consequence at all from the standpoint of Section 92 of the CPC. Indubitably, therefore, it will require no reiteration, going by the afore extracted view of the Hon'ble Supreme Court in **Swami Parmatmanand Saraswati** (supra), that the holdings of the Trial Court, that the suits are bad for want of leave under Section 92 of the CPC, cannot obtain the approval of this Court; and consequently, the appellant is entitled to succeed these appeals on this issue. 16. There is a further reason why the appellant would be eligible to prosecute the suits without obtaining the leave of the Court under Section 92 of the CPC, even if it is taken ex-arguendo, that the purpose therein is not to vindicate a personal right; and the very same reason would also offer justification - if not make it obligatory - for this Court to decree these suits, in the manner as I propose presently, without remanding them to the Trial Court, invoking the powers under Order XLI Rule 33 of the CPC. **RFA.Nos.570 & 571 OF 2004** **19** 17. The scramble for control and governance of the various Parish Churches under the Malankara Church between its two factions - the “Patriarch faction” and the “Orthodox faction” - has a very long history, which now stands resolutely and firmly concluded by the various judgments of the Hon'ble Supreme Court, delivered over the years, in **Moran Mar Basselios Catholicos** v. **Thukalan Paulo Avira and others** [ **AIR 1959 SC 31]; Most Rev. P.M.A. Metropolitian and others v. Moran Mar Marthoma and another [1995 Suppl.(4) SCC 286]; K.S.Varghese and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church [2017(15) SCC 333] and Fr.Issac Mattammel Cor Episcopa v. St.Mary's Orthodox Syrian Church [2019 (4) KLT (SC) 1].** 18. Epigramatically, the sum total effect of these judgments is that all the constituent churches of the Malankara Church are to be governed and administered only as per the provisions of its 1934 Constitution and in no other manner. The conclusions and views of the Hon'ble Court, particularly in **K.S.Varghese** (supra) puts an emphatic stop to **RFA.Nos.570 & 571 OF 2004** **20** the factionalism in the Malankara Church, and orders that only those who swear allegiance to the 1934 Constitution would be entitled to any role in the administration of the constituent Churches or to be appointed and to function as Vicars, Priests and such other ecumenical positions. 19. After mandating as afore, in **Fr.Issac Mattammel** (supra) the Hon'ble Supreme Court, set aside an interim order issued by this Court, finding it to have been issued against the declaration in **K.S.Varghese** (supra) and then ordered as under: “6. It is made clear to all concerned more so, to the Courts that in future the violation of judgment and order to be viewed seriously. Let similar matters which are pending be decided following aforesaid judgment and order. There can be no further litigation as the decision in representative suit is binding. 7. The impugned order is set aside and the appeal and the suit stand disposed of in terms of the order passed by this Court in K.S.Varghese(supra), which holds the field.” 20. It is thus apodictic that this Court is bound and **RFA.Nos.570 & 571 OF 2004** **21** obligated by the directions and declarations of the Hon'ble Supreme Court in the afore cited judgments - which have been expressly stated to be issued under Article 141 of the Constitution of India while deciding as to how the suits involved herein will have to be finally dealt with, since the specific allegations of the appellant - who is the plaintiff in O.S.No.16/2000 and the 1[st] plaintiff in O.S.No.33/1998 - is that he was appointed as a Metropolitan of the Thrissur Diocese of the Malankara Church by the Patriarch of Antioch in the year 1990 and that he continued to be in such position, until the suits were filed. 21. Therefore, it is luculent that the appellant lays claim to the position of a Diocesan Metropolitan of the Malankara Church based on its 1934 Constitution and hence the impact of the afore judgments of the Hon'ble Supreme Court becomes necessary to be examined in the backdrop of his further averments in the plaint, which I will first indite in short. 22. The appellant concedes that he was originally a member of the 'Patriarch faction' of the Malankara Church, **RFA.Nos.570 & 571 OF 2004** **22** but that when the Hon'ble Supreme Court delivered the judgment in **PMA Metropolitan** (supra) - which was one following the Constitution Bench judgment in **Moran Mar Baselioius Catholicos** (surpa) - holding that the Malankara Church can be governed and managed only under its 1934 Constitution and that the rights of the Patriarch of Antioch as regards temporal and religious activities of the Church had virtually reached a 'vanishing point', he chose to abide by it. 23. The appellant further explains that by a subsequent decision, dated 25.3.1996, which has been reported as **Most Rev. P.M.A Metropolitan and others etc v. Moran Mar Marthoma Mathews and another, etc [1996 SC 3121],** the Hon'ble Supreme Court ordered the status quo with respect to the various posts and positions in the Malankara Church to be maintained, finding that certain amendments to Articles 46 and 71 of its 1934 Constitution were required; and that, thereafter, by another order dated 05.02.1997, which is reported as **Most Rev. P.M.A Metropolitan and others etc.** **v. Moran Mar Marthoma Mathews and another etc** [ **AIR 1997 SC 1035]** , all the Metropolitans and priests of the **RFA.Nos.570 & 571 OF 2004** **23** Malankara Church were given the option of expressing their allegiance to the 1934 Constitution, by making a declaration to such effect before the Catholicos. 24. The appellant submits that he took the afore opportunity and issued a letter to the Catholicos affirming his allegiance to the 1934 Constitution and consequently, that he was allowed to continue as the Metropolitan of the Thrissur Diocese of the Malankara Church ever since. 25. The appellant then alleges that, however, in the meanwhile, the defendants in the suits came together and convened a meeting of an association, which they called the 'Yacobaya Suriyani Christyani Sabha' and took a decision that the action of the appellant in having 'declared allegiance to the catholics' is an act of apostasy and therefore, that he cannot continue as the Metropolitan of the Thrissur Diocese of the “Patriarch faction”. The appellant concludes his averments stating that, subsequently, the Patriarch of Antioch issued the impugned 'Kalpana', extracted above in paragraph No.4 of this judgment, and that he, therefore, was constrained to assail the same. **RFA.Nos.570 & 571 OF 2004** **24** 26. Interestingly, in response to the afore allegations of the appellant/plaintiff, the defendants in O.S.No.16/2000 filed a detailed written statement, wherein, their essential plea is that the Malankara Church still has two factions, namely the 'Jacobite faction' and the 'Orthodox faction' and that the appellant can only be treated as being the 'Metropolitan of the Patriarch faction'. Pertinently, in paragraph No.29(h) of the said written statement, the defendants have unequivocally stated that they do not seek to interfere with his power, if any, with respect to the parish churches of the “Catholicos faction”; but that the 'Kalpana' only removes him from the position of the Metropolitan of the Thrissur Diocese of the “Patriarch faction” and therefore, that the same is legal and valid in law. 27. It is thus obvious that the stand of the defendants, as are available from their pleadings, which I propose to extract hereinafter so as to avoid any ambiguity in its interpretation, would clearly demonstrate that their specific case is that the two factions of the Malankara Church are still active and valid in spite of the judgments of the Hon'ble Supreme Court; and resultantly, that since the appellant was **RFA.Nos.570 & 571 OF 2004** **25** originally appointed by their faction, the Patriarch of Antioch, through the impugned 'Kalpana', is vested with the competence to remove him from such position. 28. The afore are clearly evinced from the asseverations of the defendants in paragraphs 14,19(vi), 20, 21, 23, 26, 29(a), 29(b), 29(d), 29(e), 29(f), 29(h), and 29(i) of their written statement, which are as under: “14. The defendants are Metropolitans of Jacobite Syrian Christian Church accepted by its Association known as Jacobite Syrian Christian Association. His Holiness, The Patriarch of Antioch have issued Kalpanas allowing the defendant to join the Jacobite Syrian Christian Association. The Parish churches of Trichur diocese being members of the said Association are under the episcopal administration of the defendant. 19(vi). The effect is that the two factions continue in the Malankara Church. There is no bar in the erstwhile Patriarch Faction opting to disassociate with the Malankara Association and form a new Association in exercise of their fundamental right guaranteed by Article 26 read with Article 19(1)(c) and Article 25 of Indian Constitution. 20. Declarations of allegiance to the 1934 Constitution being only a condition fixed by the Apex Civil court need only be obeyed by a known process of law i.e. by the filing of a sworn affidavit swearing allegiance to the 1934 Constitution in the Court. There is no direction to swear allegiance before the Catholicos. The Patriarch faction took the official stand that it is not necessary to do so. This condition of swearing allegiance is **RFA.Nos.570 & 571 OF 2004** **26** applicable only with respect to those who continue in the Malankara Church under the Catholicos, Mar Thoma Mathews II. It is not applicable with regard to those who have opted out of the said Association and joined the Jacobite Syrian Christian Association of the Jacobite Syrian Christian Church. 21. It is the stand of the defendants that it was highly improper and unfair for the plaintiff to voluntarily disassociate himself from the Jacobite Syrian Christian Church and continue to claim authority over the partishes and institutions of the said church. He is entitled to the respect for the Metropolitan of a sister church. 23. The learned Sub Judge, Muvattupuzha, who is admittedly a member of the Catholicos faction passed the order mentioned therein after the meeting of 15.3.1999 was over and after the newly elected office bearers took charge. It has not become final. 26. The effect of AIR 1995 SC 2001 is that there is a malankara church which is a Division of the Syrian Orthodox under the Patriarch, Patriarch is spiritually superior to the Catholicos, there are two factions in the church arising due to the disputes that arose after 1.1.1971 and that the said two factions will continue till the new managing committee is elected and it takes its decision. Factionalism will end only after the said decision. This is applicable with respect to those who continue to be Associated with the Malankara Association under Mar Thoma Mathews II. 29(a). The Patriarch in issuing the Kalpana was exercising his power of general supervision over the spiritual government of the Malankara church in his capacity as the spiritual head of the church. 29(b). Under the decree and judgment of the Supreme Court of India, the Plaintiff was bound to continue to exercise his powers as a Metropolitan of the erstwhile Patriarch faction of Trichur Diocese. He shifted allegiance to the Catholicos faction. **RFA.Nos.570 & 571 OF 2004** **27** 29(d). The Plaintiff is a bishop of Malankara Orthodox Church under MarThoma Mathews II and have nothing to do with the parish churches and institutions of Trichur Diocese of Jacobite Syrian Christian Church and its Association. The Malankara Orthodox Church under MarThoma Mathews II, Catholicos does not have a 'Trichur Diocese' and the Suit is liable to be dismissed for this reason alone. 29(e). Para 23(f) is denied. Patriarch has the power of general supervision over the spiritual government of the Malankara Church de hors the 1934 Constitution. The said power is consistent with the findings of the Supreme Court of India, the age old customs and traditions of the Church and then basic faith of the church. It is the nonacceptance of this basic principles of faith that is standing in the way of peace and unity. 29(f). Factions continued till 6.7.2002 in the Malankara Church with their representative bodies also. The synod of the erstwhile Patriarch faction continued under the Presidentship of the respondent, contention to the contrary is unreal, incorrect and is denied. The Kalpana of the Patriarch is legally and factually valid. It is a bonafide Kalpana issued with the intention of preventing confusion and chaos in the Dioceses of the erstwhile Patriarch faction. 29(g). The Plaintiff if he was a Metropolitan of the erstwhile Patriarch faction was subject to the jurisdiction of its Episcopal synod. He was functioning as its active member until his shifting to the Catholicos faction in May, 1997. He is estopped from contending against the jurisdiction of the Holy Episcopal Synod of the erstwhile Patriarch faction. 29(h). The decisions of the Synod and the Kalpana of the Patriarch only prevents him from attempting to exercise episcopal powers over the parish churches etc. of the erstwhile Patriarch faction in TRICHUR Diocese. People of the Diocese has already **RFA.Nos.570 & 571 OF 2004** **28** restrained him from exercising the said power by rejecting his authority. It does not seek to interfere with his power, if any, with respect to the parish churches etc. of the Catholicos faction. 29(i). Para 23(i) is incorrect. It is true that Patriarch has no temporal powers. The Kalpana is issued by the Patriarch approving the decisions of the Synod and the managing committee of the Patriarch faction in His capacity as the Supreme Spiritual Head of the Church. The said Kalpana is only with respect to the spiritual power of the plaintiff. The decisions of the managing committee and synod, however, covers the temporal aspect of the power if any of the plaintiff.” 29. The assertions and averments in the written statement take it beyond any doubt that the unequivocal stand of the defendants is that the Malankara Church still has two factions and that the appellant, who was appointed originally as the Diocesan Metropolitan by the Patriarch of Antioch, is liable to be removed by the said Authority under the impugned 'Kalpana'. 30. Further, Sri.P.V.Elias, learned counsel appearing for two of the respondents in these appeals, who are the Metropolitans of the “Patriarch faction” does not even impel an argument against the authenticity of the 'Kalpana' produced by the appellant along with the suits; but, on the contrary, expressly admits the same to be genuine, asserting it **RFA.Nos.570 & 571 OF 2004** **29** to be legal and valid, on the contention that it only seeks to remove the appellant from the post of Metropolitan of the Thrissur Diocese of the 'Patriarch faction'. These submissions of Sri.P.V.Elias are in consonance with the above extracted averments in the written statement, particularly in paragraph 29(h), which makes it perspicuous that the defendants do not seek to challenge the appellant as being the Diocesan Metropolitan of the Catholic Church but only as one under the 'Patriarch faction'. 31. When the defence built by the defendants to the plaint allegations made and prayers sought for by the appellant is so noticed, it becomes ever too obvious that it cannot obtain the imprimatur of any court because, after the judgments of the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra) and **K.S.Varghese** (supra) **,** factionalism in the Malankara Church is no longer acceptable nor can it be judicially recognized. This is more so because, the incontestable declarations of law in the said judgments, vest only the Catholicos with the power to take decisions regarding the appointment and removal of the Metropolitans, **RFA.Nos.570 & 571 OF 2004** **30** including the Diocesan Metropolitans - of course, in the manner stipulated in the 1934 Constitution of the Malankara Church; and axiomatically, the Patriarch of Antioch obtains no control over the temporal or spiritual activities of the various constituent churches, except that he is recognized as its primate, as provided in the Constitution itself. 32. When I say as afore, I am fully conscious of the additional submissions of Sri.P.V.Elias that it is the contention of his client that there is no Thrissur Diocese for the Malankara Church and that the appellant was appointed as the Metropolitan of the said diocese exclusively under the “Patriarch faction”. I am afraid that this submission cannot appeal to me, since the list of the churches, which comprise the Thrissur Diocese of the Malankara Church, is appended as plaint B schedule to O.S.No.33/1998 and they are also enumerated in paragraph No.1 of the plaint in O.S.No.16/2000; but none of the defendants, in their written statement or pleadings, have a case that these churches are not part of the Malankara Church, nor have they chosen, even sotto voce, to assail the veracity of the assertions of the **RFA.Nos.570 & 571 OF 2004** **31** appellant to such effect. 33. In the backdrop of the afore factual and forensic scenerio, it becomes unavoidably incumbent for this Court to decide the future course with respect to the suits. 34. The provisions of Order XLI Rule 33 of the CPC grant power to the Appellate Court to pass any decree and make any order which ought to be passed in a suit. For the sake of immediate reference, I feel it apposite to reproduce the said Rule as below: ## **“Power of Court of Appeal-** The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection 2[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: 3[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from **RFA.Nos.570 & 571 OF 2004** **32** whose decree the appeal is preferred has omitted or refused to make such order.]” 35. When an Appellate Court intends to act under the afore provision, its judgment will have to abide by the mandate of Order XLI Rule 31 of the CPC, which, inter alia, provides that it shall state the points for determination and the reasons for the decision. 36. This Court is fully aware that the suits in question have not been tried by the Trial Court nor have the documents produced by the parties marked in evidence and that the suits have been dismissed by it on the preliminary issue of maintainability. It is obviously for this that both Sri.P.V.Elias and Sri.Mathews J. Nedumpara, who are appearing for the respondents in these appeals, seek that, should this Court hold that the leave of the Court under Section 92 of the CPC is not necessary, then the suits be remanded for trial and disposal. 37. However, for a suit to be taken to trial, there ought to be triable issues in contest between the parties. But as I will record under, I cannot find any issue that can be tried by the Trial Court since, as the afore narration of pleadings **RFA.Nos.570 & 571 OF 2004** **33** would irrefragably show **,** all the aspects involved in the suits are completely covered by the judgments of the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra) and **K.S.Varghese** (supra) **.** 38. This is indubitable because the appellant claims to be the Metropolitan of the Thrissur Diocese appointed at a time when factionalism in the Malankara Church was accepted. It is conceded that he was appointed originally to such post under the authority of the Patriarch of Antioch and that he was a part of the “Jacobite faction” of the Church. However, subsequent to the declarations by the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra) **,** the appellant swore his allegiance to the 1934 Constitution, as per the opportunity which was available to him under the orders of the Supreme Court dated 05.02.1997 and he thus accepted the authority of the Catholicos over the Churches constituting the Malankara Church, thus becoming entitled to the benefit of the order of status quo issued by the Supreme Court earlier on 25.03.1996. 39. The specific stand of the defendants/respondents in **RFA.Nos.570 & 571 OF 2004** **34** these appeals is that the appellant was appointed as a Metropolitan of the Thrissur Diocese of the “Patriarch faction” by the Patriarch of Antioch and that when he thereafter, swore allegiance to the 1934 Constitution and to the Catholicos, as per the opportunity granted for such purpose by the Hon'ble Supreme Court in its order dated 05.02.1997, he forfeited his right to continue in such position; and therefore, that the Episcopal Synod of the 'Jacobite faction' was empowered to meet and take a decision as to his removal, which then was given approval and concurrence by the Patriarch of Antioch, through the 'Kalpana' impugned in O.S.No.16/2000. 40. Clearly, therefore, the defendants are proceeding with their defence, in a manner contrary to the declarations of the Hon'ble Supreme Court in the various judgments cited above. They maintain that the Malankara Church still has two factions and that the appellant can only be seen to have been appointed as a Metropolitan of the Thrissur Diocese of the Jacobite faction. This is crystally clear because the impugned 'Kalpana' dated 12.04.1999, attempts to restrain the appellant **RFA.Nos.570 & 571 OF 2004** **35** from “exercising the powers of a Metropolitan of the Thrissur Diocese of the Patriarch faction until otherwise decided by the Holy Episcopal Synod and representative bodies of the Patriarch faction”.(sic) 41. This position now adopted by the defendants can never be countenanced by any court nor can they be taken to trial after the Hon'ble Supreme Court delivered **K.S.Varghese** (supra), followed by **Fr.Issac Mattammel Cor Episcopa** (supra), since no court can now recognize the two factions in the Malankara Church. The fact is, without any doubt, known to the defendants as well, since they have carefully used the word 'erstwhile' while referring to the two factions; and therefore, no triable issues can be framed for consideration by this Court or by the Trial Court under Order XIV Rule 1 of the CPC, since it will certainly have the effect of disregarding the binding conclusions of the Hon'ble Supreme Court. 42. That apart, except the contention that the Malankara Church still has two factions and that the appellant can only be construed to be the Metropolitan of the **RFA.Nos.570 & 571 OF 2004** **36** 'Patriarch faction', none of the other facts are in dispute, including the veracity and validity of the impugned 'Kalpana' dated 12.04.1999. As I have already seen above, this 'Kalpana' is asserted by the defendants themselves to be valid and genuine; and hence, even if it is not marked in evidence through a trial, it amounts to an admission qua its validity and genuineness under Order XII Rule 6 of the CPC. 43. When the impugned 'Kalpana' is thus admitted by the defendants, this Court would be empowered to look into its contents even without a trial; and since it clearly runs antithetical to the mandate of the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra) **K.S.Varghese** (supra), thus without any legal capacity to bind the appellant, this Court would become fully justified in decreeing O.S.No.16/2000 in the manner prayed for by the appellant. 44. This is irrefutable because, looking closely through the pleadings, not mere are none of the essential facts in dispute, but they are admitted with the sole point of divergence in this case between the parties being whether the impugned “Kalpana” can oust the appellant from his position **RFA.Nos.570 & 571 OF 2004** **37** as the Diocesan Metropolitan of the Malankara Sabha. Therefore, the admitted facts would require no judicial adjudication and since the legal issue - as to the competence of the Patriarch of Antioch to issue the impugned “Kalpana” - are covered by the judgments of the Hon'ble Supreme Court, it would be impermissible for this Court to remand the suits for trial. 45. Resultantly, under the mandate of Order XLI Rule 31 of the CPC, this Court deems appropriate to frame the issues for consideration in the suits as under: a) Can the the impugned 'Kalpana' dated 12.04.1999. issued by the Patriarch of Antioch bind the appellant/plaintiff? b) What releifs are the appellant/plaintiff entitled to? 46. Before I conclude this judgment on the afore framed issues, based on my opinion and holdings recorded herein, I must certainly note that Sri.Mathews J. Nedumpara, learned counsel appearing for respondents 6 and 8 in RFA.No.570/2004 - though did not argue much on the merits of the pleadings and prayers in the suits, saying that he concurs with the submissions of Sri.P.V.Elias on such aspects - **RFA.Nos.570 & 571 OF 2004** **38** nevertheless, made a vehement attempt to persuade me that this Court ought not to dispose of these appeals or the suits on the basis of the afore cited judgments of the Hon'ble Supreme Court. 47. According to him, all these judgments are per incuriam and “do not lay down the law correctly”, since “it interferes with the right of faith of the parishioners and priests;” and further that the declaration therein cannot be construed to operate as res judicata as far as the suits in question are concerned, since none of the parties herein were parties to the said judgments. Sri.Mathews J. Nedumpara has also placed his argument notes on record, wherein, the afore contentions have been expatiated, after explaining the history of the factional feud in the Malankara Church. The relevant paragraphs of the argument notes are paragraphs 4, 5, 6, 7 and 8, which read as below: “4. I beg to submit, with utmost respect that the judgment of the 5-judge constitution bench of the Supreme Court is one rendered void ab inito so far as the parties to the said suit are concerned and one rendered per incuriam in so far as the judgment's precedential value is concerned. **RFA.Nos.570 & 571 OF 2004** **39** I am constrained to say the errors which the court committed are so fundamental that ordinarily, it ought not have happened. The court's judgment meant the denial of the very freedom of faith and belief to million of the faithful of the Syrian Orthodox church who consider the Patriarch as their supreme Spiritual and temporal head. 5. On the premise that the judgment of the constitution bench in Moran Mar Basselios constitutes to be res judicata and a binding precedent, a 3-judge bench of the Supreme Court rendered a judgment in Most Rev. P.M.A. Metropolitan and rs. (1995 Supp (4) SCC 286, in favour of the Patriarch faction, which meant reaffirming that the decision in the Vattipanam case constitutes to be res judicata, a proposition which has no legs to stand. 6. The injustice which the aforesaid judgment of the Supreme court has cost to the faithful of the Malankara Syrian Orthodox Church, owing allegiance to the Patriarch, far from being mitigated, which one would have expected, came to be far aggravated at the hands of a bench of 2 judges in k.S.Varghese and ors. (2017) 15 SCC 333. In the said judgment the court went on to hold that the democratic principles will have no application, the faith of the Patriarch faction of the Orthodox Church is of no concern, but what matters is the administration of the affairs of the churches in accordance with the 1934 Constitution of the church which the faithful of the Patriarch faction consider to be contrary to their faith. To the shock and dismay of the faithful of the Patriarch faction, the 2-judge bench went on to hold that “full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point”, which is nothing but gross infringement of the very freedom of conscience and the right to freely profess, practice and propagate religion under Article 25 of the Constitution. The judgments of the Supreme Court as aforesaid, and in particular that of 2017 is violative of Articles 13(2), 14, 21 and 25 of the Constitution in as much as the Supreme **RFA.Nos.570 & 571 OF 2004** **40** Court in the said judgments was pleased to hold that a judgment in which the faithful were not a party, rendered on their faith even before they were born will be binding on them, not merely as res judicata, still worse, as if it is a legislation. The said judgments are ex facie one rendered void ab initio, still born, one which never ever existed in the eyes of law, far from constituting a binding precedent in terms of Article 141. While the faithful of the Syrian Orthodox Church who owe allegiance to the Patriarch were hopeful of the said erroneous judgments being corrected at the hands of the Supreme Court, to their great devastation, there came yet another judgment at the hands of Supreme Court in Fr.Issac Mattammel Cor-Episcopa, 2019 (4) KLT (SC) 1 which was even more disastrous. In the said judgment which is more in the nature of an ex cathedra dicta, as if the judgments of the Supreme Court are infallible judicial pronouncements whose correctness cannot be questioned where such judgments are cited as a precedent which every court subordinate to the Supreme Court is duty bound to embark upon when a decision is cited before it as a binding precedent, the Supreme Court held that the courts and tribunals subordinate to it, in terms of Art 141 are bound to follow it. It is as if the subordinate courts are not entitled to entertain a plea as to that the said judgments do not constitute res judicata, which a litigant is entitled to put forward that the judgment in K.S.Varghese constitutes no precedent for it is one rendered per incuriam, which too a litigant is entitled to put across. It is up to the court before which the plea is raised to pronounce upon it on its merit. 7. It is most respectfully pleaded that the judgment in K.S.Varghese does not constitute to be res judicata in so far as the instant Respondent is concerned, so too, the said judgments constitute to be no binding precedent. The judgment in Fr.Issac Mattammel case is in conflict with many constitutional bench judgments of the Supreme court. The instant Respondent is entitled to raise this plea, put forward **RFA.Nos.570 & 571 OF 2004** **41** contentions in support of the same and it is for the court to decide on way or the other. The instant Respondent has every right to insist that his contentions be recorded and the matter be decided one way of the other. 8. The Supreme Court went wrong in observing thus: “there can be no further litigation as the decision in the representative suit is binding” (paragraph 6 of Fr.Issac Mattammel case). The said observation is without jurisdiction and constitutes no res judicata. It is one rendered per in curiam and therefore is no binding precedent. The instant Respondents have every right to plead so, in all humility and with utmost respect to the majesty of law.” 48. Sri.Mathews J. Nedumpara, also cited various judgments, including **State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others [AIR 2006 SC 212], M/s.Zee Tele Filims Ltd. and Anr v. Union of India and Ors [AIR 2005 SC 2677], Nasiruddin and others v. Sita Ram Agarwal [(2003) 2 SCC 577], Municipal Corporation of Delhi v. Gurnam Kaur [AIR 1989 SC 38], State of U.P and another v. Synthetics and chemicals Ltd. and another [(1991) 4 SCC 139] A.R.Antulay v. R.S.Nayak and another [(1988) 2 SCC 602]** in support of his afore submissions. 49. Before I venture to consider the rather startling **RFA.Nos.570 & 571 OF 2004** **42** submissions and arguments of Sri.Mathew J. Nedumpara recorded afore, it is to be noticed that he is only appearing for respondents 6 and 8 in one among the afore appeals, namely RFA.No.574/2004. This fact is relevant because RFA.No.570/2004 arises from O.S.No.33/1998, while RFA.No.571/2004 arises from O.S.No.16/2000, and as is evident from the factual narration afore, O.S.No.33/1998 was filed by the appellant seeking, inter alia, injunctive reliefs against the defendants therein from proceeding to take any decision to remove him as the Diocesan Metropolitan and obstructing him from discharging the functions of such office; while O.S.No.16/2000 was filed by him thereafter, when the Patriarch of Antioch issued the 'Kalpana' extracted in paragraph 4 of this judgment - which approved the decision taken by the defendants and others in a meeting convened on **15.03.1999** - assailing the same and seeking corrolary reliefs, including an injunction against the defendants therein from interfering with his rights as the Diocesan Metropolitan. It is thus amply clear that once O.S.No.16/2000 had been filed by the appellant, O.S.No.33/1998 because its mere adjunct and **RFA.Nos.570 & 571 OF 2004** **43** that if the former is decreed, then the latter will also have to be decreed as a natural consequence. 50. Therefore, even if I am to find any favour with Sri.Nedumpara's submissions, it would be of little consequence, since no such contentions are impelled or adopted by Sri.P.V.Elias or his clients in RFA.No.571/2004; and this is crucial since the written statement in O.S.No.16/2000 and the submissions of Sri.P.V.Elias indubitably accepts the judgments of the Hon'ble Supreme Court to be binding. Hence if the said suit is decreed, then O.S.No.33/1998 (from which RFA.No.570/2004 arises) would also have to be allowed and resultantly the arguments of Sri.Nedumpara becomes unnecessary of any further assessment by this Court. 51. Even the afore being so, I deem it in fairness to indite, albeit, compendiously, why this Court cannot accept the contentions of Sri.Nedumpara. 52. As available from the afore extracted arguments of Sri.Mathews J. Nedumpara, his client appears to maintain that the 1959 judgment of the Constitution Bench of the Hon'ble Supreme Court in **Moran Mar Basselious Catholicos** **RFA.Nos.570 & 571 OF 2004** **44** (supra) is one rendered void ab initio; and consequently, that the judgments in **K.S.Varghese** and **P.M.A.Metropolitan** (supra) are both per incuriam. Sri.Mathews J. Nedumpara also maintains that these judgments cannot operate as res judicata against the parties of these suits and therefore, that this Court should dispose of these appeals without being bound or without following the said judgments. He maintains that these judgments cannot constitute binding precedents under Article 141 of the Constitution of India and that the directions in **Fr.Issac Mattammel Cor Episcopa** (supra) - that all Courts in India are to follow the earlier declarations and that there can be no further litigation on these aspects, the judgments having been delivered in representative suits being binding all - have been issued without jurisdiction and hence rendered per incuriam, which consequently, does not operate to make the issues in the suits res judicata. 53. The afore submissions of Sri.Mathews J. Nedumpara, made on behalf of respondents 6 and 8 in RFA.No.570/2004, are clearly nothing but desperate **RFA.Nos.570 & 571 OF 2004** **45** brinkmanship and he is attempting a declaration from this Court, which is impossible. I am at a loss to understand the true import of his submissions nor can I see how such contentions can be raised. What Sri.Nedumpara requires from this Court is that it refuse to follow the judgments of the Hon'ble Supreme Court and to dispose of the appeals/suits in question disregarding the entire history of litigation in the Malankara Church. It is distressing that Sri.Mathews J. Nedumpara persisted with the submissions on this line for a considerably long time, even though it was made clear to him at the inception that this Court is bound by the afore judgments of the Hon'ble Supreme Court and hence obligated to dispose of the appeals and the suits in the manner declared therein. 54. That thus brings me back to the issues framed in this case, as are available in paragraph No.45 **,** herein, and I record the conclusions of this Court on it under. Issue (1): For the reasons already indited by me in the earlier paragraphs of this judgment, it is rendered without any contest that on account of the affirmative and binding **RFA.Nos.570 & 571 OF 2004** **46** declarations of law made by the Hon'ble Supreme Court of India in **P.M.A.Metropolitian** (supra), **K.S.Varghese** (supra) and Fr.Issac Mattamel (supra), the impugned Kalpana of the Patriarch of Antioch, dated 17.4.1999, which is hereby marked as Ext.P1 without opposition, is invalid and non-est; consequently, without any power or competence to bind or govern the appellant or the Churches under the Malankara Orthodox Syrian Church. This issue is answered so. Issue (2): In view of my holdings on the afore issue, the appellant becomes fully entitled to a consequential injunction against the defendants in both the afore suits from interfering or impeding with his right to act and perform as the Metropolitan of the Trichur Diocese of the Malankara Orthodox Syrian Church on the strength of the impugned Kalpana of the Patriarch of Antioch dated 12.4.1999. This issue is thus answered. Resultantly: ## a) These appeals are allowed; and consequently, b) O.S.No.33/1998 and O.S.No.16/2000 on the files of the I Additional District Court, Ernakulam, are decreed, declaring **RFA.Nos.570 & 571 OF 2004** **47** that the 'Kalpana' of the Patriarch of Antioch dated 12.4.1999, namely Ext.P1, does not bind the appellant/plaintiff and is inoperative and non-est in so far as it seeks to remove him as the Metropolitan of the Trichur Diocese of the Malankara Orthodox Church. (c) As a concomitant corollary, the defendants are hereby injuncted perpetually from interfering with or in any manner impeding the functioning of the appellant/plaintiff as the Metropolitan of the Trichur Diocese of the Malankara Orthodox Syrian Church on the strength of Ext.P1 Kalpana of the Patriarch of Antioch dated 12.4.1999. d) The appellant/plaintiff is hereby awarded costs in the suits, but not in these appeals, which I direct the parties to suffer respectively. **SD/-** **DEVAN RAMACHANDRAN** rp **JUDGE**