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**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **RFA.No.10 OF 2020** **AGAINST THE JUDGMENT AND DECREE IN OS 6/2013 DATED 29-11-2019 OF IST ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/DEFENDANT NO.11:** **K.P.MATHACHAN, AGED 72 YEARS S/O. PAULOSE, KAVANATHOTTATHIL HOUSE, OORAMANA P.O. MEMURI, MUVATTUPUZHA 686 663.** **BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA SMT.K.S.SREEREKHA SRI.NABIL KHADER** ## **RESPONDENTS/PLAINTIFFS/DEFENDANTS 1 TO 10 AND 12,13:** - **1 V.P.JOY, AGED 56, S/O. V.P. PAULOSE VADAKKEDATHU HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **2 SHAJI MATHAI, AGED 41 YEARS S/O. MATHAI, THOTTIYIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **3 C.O. PAULOSE, AGED 46 YEARS S/O JOSEPH, CHENAKKOTTU HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** **4 ST. GEORGE TABORE CHURCH OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA , ERNAKULAM REPRESENTED BY ITS TRUSTEES, N.I. THOMAS, S/O. ITTEN, NEDUMATTATHIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM AND K.V. KURIAKOSE, S/O. VARGHESE, KUMBALATHUKKUNNEL HOUSE** RFA 10&17/20 2 **OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **5 N.I. THOMAS, AGED 67 YEARS S/O. ITTAN, NEDUMATTATHIL HOUSE, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM, 686 663.** - **6 K.V. KURIAKOSE, S/O. VARGHESE, KUMBLATHUKUNNEL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **7 FR. JOY THOMAS, S/O. THOMAS, MUTTATHUKKATTIL HOUSE, MULAKULAM VILLAGE, VAIKOM TALUK, 686 610.** - **8 P.V. ALEX, AGED 56 YEARS, S/O. VARKEY, PADIYEDATHU HOUSE, OORMANA, KARA, MEMURAI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **9 P.U. SKARIA, AGED 64 YEARS, S/O. UTHUPPU, PUNNOORPEDIKAYIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM, 686 663.** - **10 ST. GEORGE JACOBITE SYRIAN TABORE CHURCH OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM, REP. BY ITS TRUSTEE. K.S. ELDHO, AGED 52, S/O. K.C. SCARIA, KODUKUTHIUYIL HOUSE, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **11 C.V. PAULOSE @ PAILY, AGED 71 YEARS S/O. VARGHESE , CHOCKLAYIL HOUSE, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **12 FR. GEORGE KALAPPURAYIL , AGED 62 YEARS S/O. VARKEY PATHROSE, KALAPURAYIL HOUSE, VADAYAMPADY, PUTHENCRUZ, VICAR ST. GEORGE JACOBITE SYRIAN TABORE CHURCH, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **13 PAULOSE P. PETER, AGED 65 YEARS S/O. PATHROSE P. PETER, PONNAL HOUSE, OORAMANA, MEMURI, VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** - **14 M.P. GEORGE, AGED 60 YEARS, S/O. PAULOSE, MANACKANAPPILLIL HOUSE, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** RFA 10&17/20 3 **15 SHIJU .C.V., AGED 41 YEARS, S/O. VARKEY, CHEERAKUZHY HOUSE, OORAMANA, MEMURI VILLAGE, MUVATTUPUZHA, ERNAKULAM 686 663.** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2020, ALONG WITH RFA.17/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 10&17/20 4 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **RFA.No.17 OF 2020** **AGAINST THE JUDGMENT AND DECREE IN OS 6/2013 DATED 29-11-2019 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/DEFENDANTS 6 & 8:** - **1 P.U.SCARIA, AGED 65 YEARS, S/O UTHUP, PUNNOORPEDIKAYIL HOUSE, OORAMANA KARA, MEMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 663.** - **2 C.V.PAULOSE @ PAILY, NOW AGED 72 YEARS S/O VARGHESE, CHOCKALAYIL HOUSE, OORAMANA KARA, MEMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 663.** **BY ADVS. SRI.K.J.KURIACHAN SRI.SUNIL JACOB** ## **RESPONDENTS/PLAINTIFF 1 TO 3/DEFENDANTS 1 TO 5,7,9 TO 11 & 13:** - **1 V.P.JOY, AGED 50 YEARS, S/O P.V.PAULOSE, VAAKKEDATH HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK 686 663** - **2 SHAJU MATHAI, AGED 32 YEARS S/O MATHAI, THOTTIYIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **3 C.O.PAULOSE, AGED 40 YEARS, S/O JOSEPH, CHENAKKOTTU HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **4 ST. GEORGE TABORE CHURCH, OORAMANA , MEMURI VILLAGE, MUVATTUPUZHA TALUK, REPRESENTED BY ITS TRUSTEES, N.I.THOMAS, S/O ITTAN, NEDUMATTATHIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663. AND K.V.KURIAKOSE, S/O VARGHESE, KUMBALATHUKUNNEL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, 686 663.** RFA 10&17/20 5 - **5 N.I. THOMAS, S/O ITTAN, NEDUMATTATHIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **6 K.V.KURIAKOSE, S/O VARGHESE, KUMBALATHUKUNNEL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **7 FR. JOY THOMAS, AGED 39 YEARS, S/O THOMAS, MUTTATHUKATTIL HOUSE, MULAKULAM VILLAGE, VAIKOM TALUK, PIN-686 610.** - **8 P.V.ALEX, AGED 50 YEARS, S/O VARKEY, PADIYEDATH HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **9 ST. GEORGE JACOBITE SYRIAN TABORE CHURCH, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT PIN-686 673, REPRESENTED BY ITS TRUSTEE, K.S.ELDHO, AGED 46, S/O K.C.SCARIA, KODUKUTHIYIL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT,PIN-686 663.** - **10 FR. GEORGE KALAPURAYIL, AGED 56 YEARS S/O VARKEY PATHROSE, RESIDING AT KALAPURAYIL HOUSE, VADAYAMPADI P.O., VIA PUTHENCRUZE, VICAR, ST.GORGE JACOBITE SYRIAN TABORE CHURCH, OORAMANA , MEMURI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT PIN-686 673** - **11 PAULOSE P. PETER, AGED 59 YEARS, S/O PATHROSE P.PETER, PONNAL HOUSE, OORAMANA KARA, MEMURI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT ,PIN-686 673** - **12 K.P. MATHACHAN, AGED 67 YEARS, S/O PAULOSE, KAVANATHOTTATHIL HOUSE, OORAMANA P.O, MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** - **13 SHIJU .C.V, AGED 35 YEARS, S/O VARKEY, CHEERAKUZHY HOUSE, OORAMANA KARA, P.O., MEMURI VILLAGE, MUVATTUPUZHA TALUK, PIN-686 663.** **R1 BY ADV. SRI.P.MARTIN JOSE (CAVEATOR)** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION 21.01.2020, ALONG WITH RFA.10/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 10&17/20 6 ## **CR** ## **JUDGMENT** A novel but certainly enterprising contention as regards what is now famously known as the ‘Malankara Orthodox Syrian Church Cases’, is urged in these appeals. 2. The appellants herein predicate that the suit, from which these appeals arise, is not maintainable since the provisions of the Places of Worship (Special Provisions) Act, 1991, barricades its considerations on merits. 3. I have remarked above that this contention is enterprising since this does not appear to have been urged earlier, even when several of the litigations relating to the other constituent churches under the Malankara Orthodox Syrian Sabha have reached all the way up to the Honourable Supreme Court leading to two seminal judgments being delivered, to which I will advert presently, after indicating the most necessary facts. RFA 10&17/20 7 4. These appeals have been considered together since they have been filed against the same judgment and decree issued by the First Additional District Court, Ernakulam in O.S.No.6/2013. 5. While RFA No.10/2020 has been filed by the defendant No.11 in the suit; RFA No.17/2020 has been filed by defendants 6 and 8. 6. Prefatorily speaking, the issues involved in these cases relate to the management and control of the St.George Tabore Church, Ooramana (hereinafter referred to as 'the Church' for short), which is conceded to be a constituent of the Malankara Orthodox Syrian Sabha Church (hereinafter referred to as 'the Malankara Church' for short). Obviously, therefore, the declarations of law by the Hon'ble Supreme Court in **P.M.A.** **Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]** and **K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and** RFA 10&17/20 8 **Others [2017 (3) KLT 261 SC]** apply in its full force as regards the management of the Church is concerned. 7. The suit in question has been filed by the parishioners of the Church asserting it to be a constituent of the Malankara Church and sought the following reliefs: - a) directing the defendants 5 and 6 to account the amounts received from the offertory (Bhandaram) kept in plaint 'B' and 'C' schedule. - b) declaration that 4[th] defendant or his successors appointed under 1934 Constitution by the Diocesan Metropolitan of Kandanadu Diocese East alone are entitled to conduct the religious services in 1[st] defendant church and B and C schedule chapel and kurisadies. - c) declaration that only parishioners who satisfy the condition prescribed in Clause 4 and 7 of 1934 Constitution and confesses before the 4[th] defendant or the Vicar appointed under 1934 Constitution by the Diocesan Metropolitan alone are entitled to participate in the parish assembly. d) a decree of permanent prohibitory injunction restraining the defendants 5 and 6 and their men or agent or anybody claiming to be the members of Patriarch faction from causing any obstruction or hindrance to 4[th] defendant or his successors appointed under 1934 Constitution in discharging the religious duties/functions in 1[st] defendant church and 'B' and 'C' schedule chapel; and kurisadies. 8. The judgment and decree of the Court RFA 10&17/20 9 below, impugned in these appeals show that the suit was decreed in the following manner: 1. It is declared that the 4[th] defendant or his successors appointed under the 1934 constitution of Malankara Orthodox Syrian Church by the Diocesan Metropolitan of Kandanad Diocese alone are entitled to conduct religious services in the first defendant church and B and C schedule chappel and kurisadies. 2. It is declared that only parishioners who satisfy the conditions in clauses 4 and 7 of the 1934 Constitution and confess before the 4[th] defendant or the vicar appointed under the 1934 Constitution by the Diocesan Metropolitan alone are entitled to participate in the parish assembly of D1 church. 3. D5 and D6, their men, agents or anybody claiming under them are restrained by a perpetual injunction from causing any obstruction or hindrance to the 4[th] defendant or his successors appointed under the 1934 Constitution of Malankara Orthodox Syrian Church in the discharge of his religious duties/functions in the first defendant church and B and C schedule chappel and kurisadies. 4. The plaintiffs are entitled to realise the proportionate costs of the suit from the contesting defendants. **==> picture [358 x 13] intentionally omitted <==** assailed by the appellants before this Court in these Appeals. 9. Before I proceed to record the dialectical contentions of the parties and answer the same, I deem it necessary to record RFA 10&17/20 10 that the numbering of these appeals were objected to by the Registry of this Court on account of **K.S.Varghese** (supra); but that I have allowed them to be numbered, subject to such objections, they being statutory appeal and so that all germane issues can be decided conclusively. 10. I have heard Sri.K.J.Kuriachan, learned counsel appearing for the appellants in RFA 17/2020 and Sri.K.R.Vinod, learned counsel appearing for the appellants in RFA 10/2020. 11. Sri.K.J.Kuriachan, interestingly began his submissions by conceding that the Church in question is a constituent of the Malankara Church and that it is therefore, liable only to be governed under the 1934 Constitution going by the declaration of law by the Hon'ble Supreme Court in **K.S.Varghese** (supra). His contention, however, was that the suit is not maintainable since it is hit by Section 3 of the Places of Worship (Special Provisions Act, RFA 10&17/20 11 1991), and therefore, that the Court below ought to have dismissed the suit. He then contended that the Church was being governed exclusively by the Jacobite faction of the Malankara Sabha and therefore, that the findings in the impugned judgment are untenable and without legs to stand on. 12. After saying as afore, Sri.Kuriachan submitted that, even while admitting that the 1934 Constitution is applicable, there are certain provisions and stipulations therein which are contrary to the declaration of law by the Hon'ble Supreme Court and he pointedly refers to Clause 101,114 and 118 thereof; contending that the Court below ought to have read down those provisions to make it in conformity with the conclusions of the Hon'ble Supreme Court. He, thus predicates that the impugned judgment and decree may not be allowed to continue; and that RFA No.17/2020 be allowed. 13. Sri.K.R.Vinod, learned counsel RFA 10&17/20 12 appearing for the appellant in RFA No.10/2020, adopted the afore submissions of Sri.K.J.Kuriachan; however, adding that the suit is not maintainable also because an earlier suit, filed by certain other parishioners, namely O.S.No.29/03 had been dismissed after leave had been granted by the Court for the institution of the same under Order I, Rule 8 of the Code of Civil Procedure (CPC for short) and resultantly, that the present suit is hit by the provisions of Order XXIII Rule 1(4) of the CPC. He says, therefore, that the suit ought to have been dismissed. 14. Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Martin Jose, learned counsel appearing for the plaintiffs/caveators in these appeals vehemently refuted the afore submissions by saying that the prohibition under Section 3 of the Places of Worship (Special Provisions) Act, 1991 would have no application to this RFA 10&17/20 13 case at all, since what is contemplated therein is an inhibition against any person to convert any place of worship of any religious denomination into a place of worship of a different section of the same religions denomination or of a different religious denomination or any section thereof. He says that it is indubitable from the pleadings on record that no one has sought or attempted to convert the Church in any manner, but that his clients’ specific assertion is that it being a constituent of the Malankara Church, can be governed only under the 1934 Constitution going by the declaration of law by the Hon'ble Supreme Court in **PMA Metropolitan** (supra) and **K.S.Varghese** (supra). 15. As regards the contentions of Sri.K.J.Kuriachan on the provisions of the 1934 Constitution, being contrary to the afore judgments are concerned, the learned Senior Counsel submits that these are purely speculative in nature; and that, in any event RFA 10&17/20 14 of the matter, this Court cannot enter into this arena on account of the specific findings and conclusions of the Hon'ble Supreme Court in **K.S.Varghese** (supra) in paragraph 120 thereof. 16. Finally, as regards the contention of Sri.K.R.Vinod, on the question of the suit being not maintainable-it being hit by the rigour of Order XXIII Rule 1(4) of the CPC-is concerned, the learned Senior Counsel submitted that this contention is wholly untenable because the appellants in RFA No.10/2020 themselves specifically admit that the earlier suit had been permitted to be withdrawn and consequently, that the bar under either Section 11 or Order XXIII Rule 1(4) of the CPC would not apply. He, therefore, prays that these appeals be dismissed. 17. I have considered the afore submissions and also examined the various materials as are available on record. 18. When I proceed to answer the various RFA 10&17/20 15 assertions made by the parties as afore, it is ineluctable that none of them have a case that the Church in question is not a constituent of the Malankara Church. Obviously, therefore, going by the declarations of the Hon'ble Supreme Court, the Church can be governed only by the 1934 Constitution and, in fact, this is conceded to by both the learned counsel appearing for the appellants herein. 19. The surviving questions, therefore, are whether the suit is hit by Section 3 of the Places of Worship (Special Provisions) Act, 1991; whether the provisions of the 1934 Constitution ought or could have been read down by the Court below or can be done by the Court; and finally, if the suit is hit by the rigour of Order XXIII Rule 1(4) of the CPC. 20. On the first aspect above, a glance through Section 3 of the Places of Worship (Special Provisions) Act, 1991 would become necessary for which purpose I extract it below: RFA 10&17/20 16 3. Bar of conversion of Places of Worship: No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. 21. As is perspicuous from the afore Section, it prohibits the conversion of any place of worship of a religious denomination or Section into a place of worship of a different section or of a different religious denomination. If the contentions of Sri.K.J.Kuriachan edificed on this Section is to be accepted, then certainly he will have to first establish that the suit was filed with respect to the attempt of any person to convert a place of worship in the manner prohibited by the afore Section. However, not merely is there not an allegation to such effect, but both sides unequivocally concede that the disputes between them is as regards the management and control of the Church; with the question being whether it should be governed by 1934 Constitution or otherwise. RFA 10&17/20 17 Ineluctably, therefore, none of the ingredients of Section 3 of the Place of Worship (Special Provisions) Act, 1991 are attracted in this case and axiomatically, I cannot find the submissions of Sri.K.J.Kuriachan based on this Section to be worthy of the imprimatur of this Court and I consequently, reject it. 22. Certainly, therefore, the contention of Sri.K.J.Kuriachan that Section 3 of the Places of Worship (Special Provisions) Act, 1991, would operate as a legal barricade against the present suit-being entertained, is rendered without any merit. 23. Coming to the contention that certain clauses of the 1934 Constitution is contrary to the declarations of the Hon'ble Supreme Court is concerned, I am afraid that it is not open for this Court to consider or to assess this because, these assertions have been specifically adverted to and assured by the Hon'ble Supreme Court in **K.S.Varghese** (supra), RFA 10&17/20 18 which is available from paragraphs 116 to 120 thereof. That apart, the allegation of Sri.K.J.Kuriachan is, in fact, on a slightly different note that, as long as the plaintiffs did not subscribe fully to the 1934 Constitution and do not accept the patriarch of Antioch as their supreme leader, they could not have been granted any relief by the Court below. I am also cognizant of the further submission of Sri.K.J.Kuriachan that an additional written statement had been filed by his client in the Court below, after **PMA Metropolitan** (supra) **and K.S.Varghese** (supra) had been delivered by the Hon'ble Supreme Court, praying that the plaintiffs be not granted a decree as prayed for by them, since they have repudiated the authority of the Patriarch but that these have not been considered by the Court below. 24. Indubitably, I can assess the afore submissions of Sri.K.J.Kuriachan only on the substructure of the pleadings on record and RFA 10&17/20 19 evidence led by the parties before the Trial Court. Nowhere in these, is there even a whisper of an admission that the plaintiffs do not accept the Patriarch of Antioch as their supreme spiritual leader; and on the contrary, they concede that they are governed exclusively by the 1934 Constitution, which starts by saying that the Patriarch of Antioch is the spiritual primate of the Malankara Church. Obviously, therefore, the contentions of Sri.Kuriachan are in the realm of speculation and I can, therefore, only repel all such contentions as being merely conjectural. 25. Finally, that leads me to the consideration of the contention of Sri.K.R.Vinod that the suit in question is hit by the provisions of Order 23 Rule 1(4) of the CPC; and in this context, it is without doubt that the appellants themselves admit that the earlier suit, namely O.S.No.29/03, had been allowed to be withdrawn by the Court below. In RFA 10&17/20 20 such circumstances, I fail to understand how the appellants can assert a contention of nonmaintainability against the present suit, under the provisions of Order 23 Rule1(4) of the CPC; and am, consequently, without doubt that these contentions are without merit. 26. At this time, Sri.K.R.Vinod impels a corollary contention that this suit is also not maintainable under Section 92 of the CPC, since the plaintiffs are essentially seeking a personal benefit for the 4[th] defendant. This prediction, in my view, is out-rightly without any footing because, what the plaintiffs are seeking is not a personal right on behalf of the 4[th] defendant but a declaration that he is the only person entitled to act as the Vicar of the Church under the 1934 Constitution, in view of the aforementioned judgments of the Hon'ble Supreme Court. Certainly, therefore, this is not a prayer which can be construed to be ‘personal’ in its nature, since after **PMA Metropolitan** (supra) **and K.S.Varghese** (supra) RFA 10&17/20 21 only a Vicar appointed under the provisions of 1934 Constitution could function as such in the Church. In the afore circumstances, I find absolutely no cause to intervene, in any manner and resultantly, dismiss these appeals at the threshold itself; however, without making any order as to costs. It is so ordered. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE**