Mathai Ulahannan and Mathai Thomman v. Fr. Skaria @ Sakaria

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934 OP(C).No. 863 of 2013 (O) ------------------------O.S.NO.7 OF 2013 OF DISTRICT COURT, ERNAKULAM PETITIONER(S): -------------- 1. MATHAI ULAHANNAN, S/O.ULAHANNAN, AGED 70 YEARS, AGED 70 YEARS RESIDING AT MANAPPATT HOUSE, PIRAVOM KARA PIRAVOMVILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT. 2. MATHAI THOMMAN, S/O.THOMMAN, AGED 70 YEARS, RESIDING AT THEKKUMMOOTIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.K.J.KURIACHAN SMT.SMITHA GEORGE RESPONDENT(S): -------------FR.SKARIA @ SAKARIA S/O.LATE MATHEW, AGED 77 YEARS RESIDING ATVATAKKATTIL HOUSE, PIRAVOM KARA PIRAVOM VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT. RADDL.2 BY ADV. SRI.S.SREEKUMAR (SR.) RADDL.2 BY ADV. SRI.P.MARTIN JOSE RADDL.2 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.K.PAUL KURIAKOSE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 863 of 2013 (O) 2 ## **APPENDIX** PETITIONER(S) EXHIBITS EXT.P-1 THE TRUE COPY OF THE PLAINT IN O.S.NO.7/2013 ON THE FILE OF DISTRICT COURT, ERNAKULAM. EXT.P-2 THE TRUE COPY OF THE I.A.NO.805/2013 IN O.S.NO.7/2013 OF DISTRICT COURT, ERNAKULAM. RESPONDENTS' EXHIBITS :NIL true copy / P.A to Judge ## **THOMAS P.JOSEPH, J. ========================= O.P(C).No.863 of 2013 ============================ Dated this the 08[th] day of March, 2013** ## **J U D G M E N T** Defendants 1 and 2 in O.S.No.7 of 2013 of the District Court, Ernakulam challenge competence of that Court to receive the plaint in view of Sec.15 of the Code of Civil Procedure (for short, "the Code") and Sec.11 of the Kerala Civil Courts Act, 1957 (for short, "the Act”). 2. First respondent filed O.S.No.7 of 2013 in the District Court, Ernakulam. It involved a dispute regarding St.Mary's Orthodox Syrian Church, Piravom and prayed for reliefs such as restraining the defendants in the suit or their agents, servants, supporters, their henchmen from causing obstruction to the plaintiff officiating as vicar of Piravom Valiaya Palli and exercising his rights - both spiritual and temporal with respect to the said Church including performance of religious sacraments and all other functions in the said Church and its chapels. 3. According to the petitioners, in view of Sec.15 of the Code and Sec.11 of the Act, the Court of lowest grade competent to entertain the suit is the Sub Court, Muvattupuzha though, it may have been possible for the District Court, Ernakulam to withdraw O.P(C).No.863 of 2013 2 and transfer the suit from that Court to the Additional District Court, Ernakulam (for short, “the designated court”) which is designated by notification as special court for trial of church cases. Learned Senior Advocate contends that the notification only empowered the designated court to try pending cases made over to it and that on the face of Sec.15 of the Code and Sec.11 of the Act, did not empower it to receive plaint and number the same. Learned Senior Advocate has placed reliance on the decisions in **T.V Idicheria Vs. T.V Chacko (1973 KLT 536)** and **Pazhukkamattom Devaswom Vs. Lakshmikutty Amma (1980 KLT 645** ). It is contended that in **Bishop Dr. Mathews Mar Savarios Vs. Thankachan (2001(1) KLT 932)** though learned single Judge of this Court has taken the view that it is within the power of the District Court to receive the plaint in matters relating to disputes for the adjudication of which designated court is established and make over that suit to the designated court, learned Judge has not considered the impact of Sec.11 of the Act which made the said provision subject to the provisions of Sec.15 of the Code. It is contended that suits must be filed in the lowest court competent to entertain it and that provision is made to safeguard vested right of parties to prefer appeals. Placing reliance on the decision in **Garikapati Veeraya Vs. Subbiah Choudhry and Ors.** O.P(C).No.863 of 2013 3 **(AIR 1957 SC 540)** it is contended that a right of appeal is a vested right. Reference is also made to Sec.100A incorporated in the Code as per Act 104 of 1976 with effect from 01.02.1977. It is further argued that in view of the Sec.100A of the Code brought in by Act 22 of 2002 the decision in **Bishop Dr. Mathews Mar Savarios v.** **Thankachan (supra)** has no application . It is argued that rules of procedure are intended to provide justice but, not to defeat it and that procedure cannot be breached for expedience. Reference is made to the observations in paragraphs 26 and 128 of **Nahar Industrial Enterprises Ltd. Vs. Hong Kong and Shanghai Banking Corporation ((2009)8 SCC 646).** It is contended that the designated court may be directed to return the plaint to be presented in the lowest court competent to entertain it - the Sub Court, Muvattupuzha. 4. Learned Senior Advocates for the respondents contended that even the decision in **Pazhukkamattom Devaswom v. Lakshmikutty Amma (supra)** is sufficient to hold that the District Court being the principal court of original civil jurisdiction is competent to entertain any suit of a civil nature the cognizance of which is not otherwise barred notwithstanding pecuniary limit of jurisdiction and, if necessary try the same. It is argued that Sec.15 of the Code is only procedural in nature and does not in any way O.P(C).No.863 of 2013 4 curtail or affect jurisdiction of the Principal Court of original civil jurisdiction to entertain any suit of a civil nature. It is pointed out that under Sec.24 of the Code, it is within the power of the District Court after it entertained the original suit, if necessary to make over the same to appropriate Court. In this case, O.S.No.7 of 2013 was filed in the principal court of original civil jurisdiction (District Court, Ernakulam) where, after hearing the first respondent, plaint was numbered and later, made over to the designated court for trial and disposal. Reliance is placed on the decision in **Hubert Peyoli Vs. Abusali (2007(4) KLT 392** (paragraph 8)). 5. It is not disputed before me that plaint was presented in the principal court of original civil jurisdiction (District Court, Ernakulam) where it was numbered as O.S.No.7 of 2013. Learned District Judge made over the case for trial and disposal to the designated court. Obviously, that is in exercise of the power conferred on the learned District Judge under Sec.24 of the Code. 6. Sec.15 of the Code states that every suit shall be instituted in the Court of lowest grade competent to try it. Sec.11 (1) of the Act states that jurisdiction of a District Court or a subordinate judges' court extends, subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) to all original suits or proceedings of a civil nature. O.P(C).No.863 of 2013 5 7. Learned Senior Advocate for petitioners has given emphasis to the expression “subject to the provisions of the Code of Civil Procedure, 1908” occurring in Sec.11(1) of the Act to contend that Sec.15 of the Code must prevail since Sec.11(1) is subject to the provisions of the Code and, in this case Sec.15 of the Code. 8. In **Pazhukkamattom Devaswom v. Lakshmikutty Amma (supra)** the Division Bench was considering application of Sec.15 of the Code so far as a suit falling under Sec.92 of the Code was concerned (it is pointed out by the learned Senior Advocates for the respondents that O.S.No.7 of 2013 is not one coming under Sec,92 of the Code). In **Pazhukkamattom Devaswom v. Lakshmikutty Amma (supra)** it was held that the normal procedure of return of plaint when the suit is presented in the highest court competent to entertain it would not apply so far as notification empowering the District Court and the Subordinate Judges' Courts under Sec.92 of the Code is concerned. In paragraph 2, the Bench has referred to Sec.15 of the Code and Sec.11 of the Act and stated that the District Court is the principal court of original civil jurisdiction in a district and that Sec.15 of the Code is only a rule of procedure insisting that suits shall be instituted in the court of lowest grade competent to try it. It is further held that Sec.15 of the Code can take in only ordinary civil suits and the O.P(C).No.863 of 2013 6 courts where they are to be instituted or determined by their pecuniary and territorial jurisdiction. Reference is made to the decision in **Maryarul Nadar Vs. Nanu Pillai (AIR 1957 T.C 69)** where, reference was made to Sec.28 of the Civil Courts Act (as it then stood). Further reference is made to the decision in **Dronavajjula Vs. Vallabhajosyula (AIR 1958 A.P 218)** where it was held that what Sec.15 of the Code provides is that every suits shall be instituted in the Court of lowest grade competent to try it, that “competency” contemplated by the section is only pecuniary competency and that there is no lack of jurisdiction for the superior court to try the suit. Again, reference was made to the decision in **Ramamirtham Vs. Rama Film Service (AIR 1951 Mad.93)** where it was held that the object of Sec.15 of the Code is to prevent superior courts being flooded or overcrowded with suits triable by courts of inferior grade and that the section merely regulates the procedure and not jurisdiction. 9. In **T.V Idicheria Vs. T.V Chacko (supra)** question considered was whether the High Court is competent to entertain an original suit directly instituted before it. It was contended that Sec.15 of the Code confers jurisdiction on the High Court also to receive plaints and dispose of original suits though it may not be a court of the lowest grade. Dealing with that contention, this Court 7 O.P(C).No.863 of 2013 held that High Court is not competent to entertain the plaint and that plaint has to be returned to the plaintiff for presentation in the proper court. 10. In **Bishop Dr. Mathews Mar Savarios v. Thankachan (supra)** , with reference to the plaint in a suit which otherwise could be tried by the designated court by virtue of notification was presented in the District Court, being the principal court of original civil jurisdiction. Question arose whether the District Court could receive the plaint on the face of Sec.15 of the Code. There, referring to Sec.11 of the Act as well, it is held that it was well within the power of the District Court in its capacity as principal Court of original civil jurisdiction to entertain the plaint and make it over to the designated court for trial and disposal. 11. In **Hubert Peyoli Vs. Abusali (supra)** also it is held that Sec.15 of the Code which regulates procedure does not prevent the principal court of original civil jurisdiction (District Court) to entertain the plaint. 12. Thus, going by the above decisions and the apparent meaning of Sec.15 of the Code, it is clear that what Sec.15 of the Code prescribes is a procedure regulating institution of suits and obviously for the reason that the Courts of highest grade otherwise competent to entertain the suit shall not be flooded or overcrowded O.P(C).No.863 of 2013 8 with suits. Suits must be instituted in the Court of lowest grade competent to entertain it, pecuniary-wise. It is therefore clear that neither Sec.11 of the Act nor Sec.15 of the Code affects jurisdictional competence of the principal Court of original civil jurisdiction to receive the plaint. May be, it is possible to institute suits of this nature in the Court of lowest grade competent to entertain suit. It is also appears that though the designated Court was constituted to decide pending cases, even after disposal of those cases the designated Court continues for trial of such cases. Learned Senior Advocate for petitioners has referred me to the order dated 13.11.2008 passed by this Court in Tr.P(C).Nos.215 of 2008 and 227 of 2008. There, the question considered was not the jurisdictional competence of the principal court of original civil jurisdiction to receive the plaint. 13. Nor am I impressed by the contention that institution of the suit in the highest court would affect right of appeal of the party and therefore, power of the highest court competent to otherwise to entertain the suit taken away. A right of appeal is certainly a vested right but, there is no vested right so far as forum of appeal is concerned. Forum of appeal depends on the procedure established by the law. Moreover, even if a suit of this nature is instituted in the lowest court competent to entertain it and later it is withdrawn from O.P(C).No.863 of 2013 9 that Court and made over to the designated court, decision will be that of the designated court and the forum of appeal will be regulated based on that. 14. Having heard learned Senior Advocates on both sides and having gone through the relevant provisions of law and the decisions aforesaid, I am to hold that the position of law is correctly laid down in **Bishop Dr. Mathews Mar Savarios v. Thankachan** that it is within the power of principal court of original civil jurisdiction to entertain the plaint, number the suit and make over the same for trial and disposal to the designated court. The decision does not call for any reconsideration. In the light of the above, reliefs prayed for in this original petition cannot be allowed. Consequently the original petition has to fail. Original petition fails. It is dismissed. Sd/- **THOMAS P.JOSEPH, JUDGE** Sbna