M.T. Paul @ Rajan and others v. Isaac Thomas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **AS.No.253 OF 2000(A) & CROSS OBJECTION** **AGAINST THE JUDGMENT & DECREE IN OS 151/1977 DATED 03-11-1999 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/1ST PLAINTIFF:** - **1 M.T.PAUL @ RAJAN (DIED), S/O.THOMAS MUTTATHOTTIL PARUR, RESIDING AT ALUMINIUM CO.LTD, ALUPURAM, ALWAYE.** > * ADDL. **2 FR.A.V.MATHEW,COR-EPISCOPA AGED 74 YEARS, S/O.VARGHESE, VICAR, ST.THOMAS CHURCH, RESIDING AT AREECKAL HOUSE, KARUMALLOR P.O., ANACHAL 683511** - **3 FR.JAISE MATHEW, AGED 33 YEARS, S/O P.K.MATHAI, PALLIPPATTU(H) AIRAPURAM.P.O, KUNNAKURUDY-683541** **[ADDITIONAL APPELLANTS 2 AND 3 ARE IMPLEADED IN THIS APPEAL,SUBJECT TO PROOF AS REGARDS THEIR STATUS AS VICAR AND ASSISTANT PRIEST RESPECTIVELY OF THE CHURCH, AS PER ORDER DATED 03/06/2020 IN IA 1/2020]** **SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS/DEFENDANTS 3,5,6,10,11,13,15,16,18,19,21,22,28,30 TO 34,39,41 TO 48 AND 3RD PLAINTIFF:** - **1 ISSAC THOMAS S/O.ISSAC OF ERALIL, RESIDING AT PARUTHARA MURI, PARUR TOWN, (DIED)** - **2 CHACKAPPAN MATHAI, NEDUNTHALLY, RESIDING AT PARUTHARA MURI, PARUR TOWN,** - **3 PAILY VARGHESE OF PYNADATHU, RESIDING AT SOUTHERN PART OF EZHIKKARA VILLAGE, PARUR TALUK** - **4 ABRAHAM IVAN, ERALIL, MERCHANT, RESIDING AT PARUTHARA MURI, PARUR TOWN, (DIED)** AS.No.253 OF 2000 & CROSS OBJECTION 2 - **5 MATHEW IYPE** - **AMBATTU, TIMBER MERCHANT, RESIDING AT PARUTHARA MURI, PARUR TOWN** - **6 IPE IPE PUTHUPARAMBIL RESIDING AT PARUTHARA, PARUR TOWN,** - **7 KURIAN KORAH, KULANGARA, RESIDING AT PARUTHARA MURI, PARUR TOWN,** - **8 VARKEY VARGHESE PUTHUSSERIL RESIDING AT PERUMPATANNA MURI, PARUR TOWN.** - **9 POULOSE ABRAHAM AMBUKKEN, RESIDING AT CHERAI MURI, PALLIPURAM VILLAGE.** - **10 ITTIACHAN JOY KULANGARA, RESIDING AT PERUMPATANNA MURI, PARUR TOWN (DIED)** - **11 VARGHESE BABY VATTAPARAMBIL, RESIDING AT PERUMPATANNA MURI, PARUR TOWN.** - **12 MATHEW ABRAHAM KULANGARA,** - **ADVOCATE RESIDING AT PERUMPATANNA MURI, PARUR TOWN.** - **13 VARGHESE LABAN ERALIL RESIDING AT PERUMPATANNA MURI, PARUR TOWN.** - **14 POULOSE JOHN KULANGARA, RESIDING AT PARUTHARA MURI, PARUR TOWN, (DIED)** - **15 KORATHU THOMAS, ERALIL, RESIDING AT MARKET, PARUTHARA MURI, PARUR TOWN,** - **16 VARKEY GEORGE VETTUVELIL, RESIDING AT PARUTHARA MURI, PARUR TOWN,** - **17 POULOSE POULOSE, ERALIL, ADVOCATE, RESIDING AT WARD III, PARUR TOWN.** - **18 VAREETHU POULOSE, PUTHUSSERIL, RESIDING AT SOUTHERN PART, EZHIKKARA VILLAGE PARUR TALUK (DIED)** - **19 VAREETHU KORATHU, EDAPPALLY KULANGARA RESIDING AT MACHANTHURUTHU** AS.No.253 OF 2000 & CROSS OBJECTION 3 ## **KARA, VADAKKEKARA, PARUR TALUK. (DIED)** - **20 VARGHESE JOSEPH, KURAN, RESIDING AT PARUTHARA MURI, PARUR TOWN.** - **21 V.O.DEVASSY,** **ADVOCATE, COMMISSIONER IN O.S.437 OF 1972 OF PARUR MUNSIFF'S COURT, PARUR TOWN.** - **22 P.V.AUGUSTINE,** - **ADVOCATE, COMMISSIONER IN O.S.437 OF 1972 OF PARUR MUNSIFF'S COURT, RESIDING AT PARUR THARA MURI, PARUR TOWN.** - **23 POULOSE, S/O.ITTOOP, NEDUTHALIL, RESIDING AT THOTTAKADAVIL, NORTH PARUR.** - **24 MATHEW,** **S/O.ITTIACHAN, ERALIL, RESIDING AT NORTH OF KANNANKULANGARA TEMPLE, NORTH PARUR P.O.** - **25 THOMAS,** **S/O.VARKEY, ERALIL,THYKKADAMPILLY, RESIDING AT NOW MARXIST PARTY OFFICE, NORTH PARUR P.O.** - **26 JACOB,** **S/O.JOHN KULANGARA CHETTIPPEDIKA, RESIDING NEAR PARUR CHURCH, N.PARUR P.O.** - **27 GEORGE,** - **S/O.VARGHESE, AREEKAL, MACHANTHURUTHU P.O., NORTH PARUR.** - **28 A.V.THOMAS,** **S/O.VARKI OF AMBAT, RESIDING AT PARUTHARA MURI, PARUR TOWN.** **IT IS RECORDED THAT R1 AND R4 ARE DEAD AND SINCE THE MATTER OF THE APPEAL DOES NOT SURVIVE AGAINST THE LEGAL REPRESENTATIVES OF THE SAID RESPONDENTS , LRS NEED NOT BE IMPLEADED VIDE ORDER DATED 11.7.01 ON MEMO DATED 25/6/2001 BEARING CF NO.5078/2001.** **IT IS RECORDED AT THE RISK OF THE APPELLANT THAT RESPONDENTS 10,14,18 AND 19 ARE DEAD AND THE MATTER OF THE APPEAL DOES NOT SURVIVE AGAINST THE LEGAL** AS.No.253 OF 2000 & CROSS OBJECTION 4 **REPRESENTATIVES OF THE SAID RESPONDENTS VIDE ORDER DATED 2/7/2001 ON MEMO DATED 22/6/2001 CF 4999/2001.** **R2, R6, R8-9, R11, R13, R15-17, R20, R23-26 BY ADV. SRI.S.ANANTHASUBRAMANIAN R2, R6, R8-9, R11, R13, R15-17, R20, R23-26 BY ADV. SRI.LATHEESH SEBASTIAN R2, R6, R8-9, R11, R13, R15-17, R20, R23-26 BY ADV. SRI.S.SHYAM R2, R6, R8-9, R11, R13, R15-17, R20, R23-26 BY ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL** **THIS APPEAL SUITS ALONG WITH CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** AS.No.253 OF 2000 & CROSS OBJECTION 5 ## **JUDGMENT** This appeal has been preferred by the first plaintiff in O.S.No.151/1977 on the files of the 1[st] Additional District Court, Ernakulam, against the judgment of the said Court delivered on 03.11.1999, as per which, the suit has been dismissed, inter alia, for the reason that it is incompetent, since it has been filed without obtaining the leave of the Court under Section 92 of the Code of Civil Procedure (CPC). 2. Pending this appeal, the original appellant died and through separate proceedings, this Court has permitted the present appellants to be impleaded as additional appellants to prosecute this appeal. 3. I have heard Sri.Biju Abraham, learned counsel for the appellants and Sri.S.Shyam, learned counsel appearing for some of the respondents. 4. The original suit was filed by the plaintiffs on the allegation that they are the parishioners of the St.Thomas Jacobite Syrian Cheriya Palli (for short, 'the Church'), Parur. The plaint averments clearly show that they sought to sue not merely in their individual capacity as parishioners but also AS.No.253 OF 2000 & CROSS OBJECTION 6 representing other parishioners who were not arrayed as parties. An application for sanction under Order I Rule 8 of the CPC was also filed along with the plaint, which was admittedly allowed by the Trial Court. 5. The appellants claim that the Church is a constituent of the Malankara Orthodox Syrian Church (for short, 'the Malankara Church') and is comprised in its Ankamali Diocese. According to them, since the Church is a constituent of the Malankara Church, it can only be administered and managed under its 1934 Constitution and therefore, sought the following prayers: “(i) A decree be passed entitling the plaintiff to recover an amount of Rs.6,77,205/- from the 1[st] and/or 2[nd] defendants or from their assets. (ii) An order of attachment before judgment be issued to the 3[rd] defendant restraining him from releasing equal amount, if any, due from the 3[rd] defendant to the 1[st] and 2[nd] defendants. (iii) An order of attachment before judgment be issued to the 4[th] defendant restraining from releasing equal amount, if any, due from the 4[th] defendant to the 1[st] and 2[nd] defendants. (iv) Grant interest at 18% per annum on the amount found due under relief (i) from the date of suit till date of payment or realisation. (v) Grant costs and such other reliefs as are prayed for and deemed fit to be granted in the circumstances of the case.” ## 6. The Trial Court, thereafter, took the suit to trial on the following issues: AS.No.253 OF 2000 & CROSS OBJECTION 7 “1. Is the plaint church a constituent parish church of the Malankara Orthodox Syrian Church governed in its administration by the constitution of the Malankara Orthodox Syrian Church? 2. Are the elections to the Managing Committee to the plaint church liable to be conducted in accordance with the provisions of the constitution of the Malankara Orthodox Syrian Church? 3. Can the constitution of the plaint church of 1116 take precedence over the constitution of the Malankara Church? Can it be enforced without the concurrence of the Metropolitan? 4. Are the Vicar and Kaikaran or Kaikars elected and appointed as per the Constitution of the Malankara Church entitled to the custody and management of the plaint church and its institutions as per the provisions of the Constitution of the Malankara Church? 5. Are the defendants competent to question the validity and enforcibility of the Constitution of the Malankara Church in the light of the Supreme Court ruling reported in 1958 KLT 721? 6. Are defendants 2 and 3 and defendants 42 and 43 liable to be restrained from holding election to the Managing Committee of church as per the Provisions of the Constitution of 1116? 7. Have the plaintiffs ceased to be parishioners? Have they become apostates? 8. Is the suit properly valued and proper Court fee paid? 9. Is the suit bad for want of sanction under Section 92 of CPC? 10. Is the 1[st] defendant any way disqualified to function as the Metropolitan of the Ankamali Diocese in which the plaint church is included? 11. Reliefs and costs?” 7. The Court marked Exts.A1 to A8 on the side of the plaintiffs; while Exts.B1 to B14 and Exts.X1 series and X2 were marked on the side of the defendants and as court exhibits respectively. The Trial Court also recorded the AS.No.253 OF 2000 & CROSS OBJECTION 8 testimony of PW1 on the side of the plaintiffs; DW1 on the side of the defendants and that of CW1 as court witness. It, then proceeded to dispose of the suit, including on the issue as to whether it is maintainable for want of sanction under Section 92 of the CPC. 8. Pertinently, the Trial Court has found all the afore extracted issues, except 7, 8 and 9 in favour of the plaintiffs, holding that the Church is a constituent of the Malankara Church and that it is liable to be managed and governed by its 1934 Constitution, thus paving way for election to be conducted as per its terms. 9. However, on issue Nos. 7, 8 and 9, the Trial Court found against the plaintiffs and dismissed the suit holding that they have ceased to be parishioners of the Church; that the suit has not been properly valued and that it is bad for want of sanction under Section 92 of the CPC. 10. The appellants have called into the question the judgment of the Trial Court on the afore three issues found against them; while the respondents have filed a cross appeal, contending that the Church is an independent one, liable to be governed by its own Constitution, namely Ext.B1 and that the findings of the Trial Court - that it is a constituent of the AS.No.253 OF 2000 & CROSS OBJECTION 9 Malankara Church and therefore liable to be governed under 1934 Constitution - are untenable and unsustainable. 11. As is clear from the afore narration, the parties are in dispute as to whether the Church in question is a constituent of the Malankara Church. However, the Trial Court, on issues 1 to 5, have found that the Constitution claimed by the respondents/defendants, namely Ext.B1, cannot oust the 1934 Constitution of the Malankara Church, since DW1, in its cross examination, unequivocally admitted that the plaint schedule church is a part of the Ankamali Diocese of the Malankara Church. The Trial Court resultantly went on to hold that the plaint schedule church is a constituent of the Malankara sabha relying upon the judgment of the Hon'ble Supreme Court in **Most Rev.P.M.A.Metropolitan and others v. Moran Mar Marthoma and another** [1995 Suppl. (4) SCC 286] 12. After concluding so, the Trial Court answered issue No.2 holding that the Church is liable to be governed by the 1934 Constitution of the Malankara Church and that Ext.B1 cannot take precedence over it. However, it then considered the issue as to whether the appellants had been removed as the parishioners of the Church and found against them, thus AS.No.253 OF 2000 & CROSS OBJECTION 10 dismissing the suit, also holding that it has not been properly valued and that it is bad for want of sanction under Section 92 of the CPC. 13. As I have recorded in the opening paragraphs of this judgment, the original appellant is no more and this appeal is now being prosecuted by the additional appellants. I had allowed the impleadment application filed by them because this is a suit instituted under Order I Rule 8 of the CPC and because the additional appellants claim to be the Vicar and Assistant Priest of the Church. However, their impleading was allowed subject to the additional appellants leading proof as to their claimed status, particularly because the respondents, through their learned counsel Sri.S.Shyam, vehemently submitted that the additional appellants are neither the parishioners of the Church or the Vicar and Assistant Priest validly appointed. 14. Be that as it may, since the fundamental issue in the suit is as to whether the plaint church is a constituent of the Malankara Church and this issue will have to be adjudicated in terms of the declarations made by the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra) and recently in **K.S.Varghese and others v. Saint Peter's and Saint Paul's** AS.No.253 OF 2000 & CROSS OBJECTION 11 **Syrian Orthodox Church** [2017 (15) SCC 333]. Axiomatically, I am of the view that the technical contention regarding the status of the additional appellants cannot be a reason to stop proceedings or to cease further consideration of this appeal, especially because it is conceded, without any reservation, that the suit was filed with the sanction of the Court under Order I Rule 8 of the CPC. 15. Since, as I have already indicated above, the original appellant is no more, the question whether he continued to be the parishioner is no longer relevant. However, the other issues as to whether the Church is a constituent of the Malankara Church and whether it is to be governed by the 1934 Constitution are matters that certainly require a judicial assessment. 16. Even though the Trial Court has found that the Church is a constituent of the Malankara Church and that it is liable to be governed only by the 1934 Constitution, it still dismissed the suit, inter alia, for the reason that it has not been valued properly and that it is bad for want of sanction under 92 of the CPC. 17. When I go through the judgment of the Trial Court on these issues and examine it from the touchstone of the AS.No.253 OF 2000 & CROSS OBJECTION 12 submissions made before me by the learned counsel for the parties, it becomes limpid that the Court went on to hold that, since the reliefs claimed for would take in a declaration that the properties of the Church belong to a particular section, ad valorem court fee ought to have been paid on its valuation. I am afraid that the Trial Court has certainly erred in entering into such a finding since the pertinent issue was whether the Church is to be governed under the 1934 Constitution or otherwise. 18. Coming to the question of Section 92 of the CPC, I notice that the original appellant, as also the additional appellants, have a specific case that the Church is not a public trust and that therefore, the suit could not have been dismissed for want of leave under Section 92 of the CPC. This, of course, is not an aspect decided by the Trial Court specifically, though it has, relying upon the judgment of the Hon'ble Supreme Court in **P.M.A.Metropolitan** (supra), held that since it is conceded that the Church is episcopal in nature, it can only be treated as public trust and therefore, that leave under Section 92 of the CPC is mandatory. 19. At this juncture, it must be remembered that, subsequent to the judgment of the Trial Court, the Hon'ble AS.No.253 OF 2000 & CROSS OBJECTION 13 Supreme Court has made further affirmative declarations in **K.S.Varghese** (supra) to the effect that all Churches which are constituents of the Malankara Church can only be governed as per its 1934 Constitution; and by a subsequent judgment in **Fr.Issac Mattammel Cor Episcopa v. St.Mary's Orthodox Syrian Church** [2019 (4) KLT (SC) 1] all Courts in India have been directed to follow the said declaration and dispose of all matters in which this is an issue. 20. Obviously, therefore, when the Hon'ble Supreme Court has made the afore directions under Article 141 of the Constitution, the obtention of leave under Section 92 or otherwise would cease to be relevant, if the Church in question is established to be one which is a part of the Malankara Church. In fact, this has been so found by the Trial Court, but which is now called into question by the respondents. 21. In the afore scenario, it is clear that the findings of the Trial Court, that the suit is bad for want of leave under Section 92 of the CPC, cannot be approved by this Court. This is more so since as already seen, the suit was taken to trial and evidence led, but that the Trial Court found that the Church, though being a constituent of the Malankara Church, AS.No.253 OF 2000 & CROSS OBJECTION 14 cannot be construed to be private trust and therefore, that leave under Section 92 of the CPC was necessary. However, in the light of the judgment in **K.S.Varghese** (supra), this position certainly will have to be reconsidered, since the declarations in the said judgment bind all Courts under Article 141 of the Constitution of India. On the views of this Court as afore being known at the Bar, learned counsel for both sides prayed that the suit be remanded to the Trial Court for fresh consideration on all aspects, since the changed scenario, consequent to the judgment of the Hon'ble Supreme Court in **K.S.Varghese** (supra), now becomes material and imperative to be taken into account. In the afore circumstances, I allow this appeal as also the cross objection and set aside the impugned judgment and decree; with a consequential direction to the Trial Court to reconsider the suit and dispose of the same after affording necessary opportunities to both sides, in terms of law. While doing so, the Trial Court will also raise and consider an additional issue, which this Court orders under Order XLI Rule 23 of the CPC, as to the status of the additional appellants - who will be impleaded as additional plaintiffs in the suit, on AS.No.253 OF 2000 & CROSS OBJECTION 15 them making an appropriate application - and as to whether they were appointed as Vicar and Assistant Priest respectively as claimed by them as per the 1934 Constitution of the Malankara Sabha. The Trial Court will endeavour to dispose of the suit as expeditiously as is possible, but not later than one year from the date of receipt of a copy of this judgment. In order to obtain an expeditious compliance of the afore directions, the learned counsel for the rival parties offered that they will appear before the Trial Court on 2[nd] July, 2020 and it is so ordered. Taking note of the circumstances above, I make no order as to costs and direct the parties to suffer their respective costs. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE**