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**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** **AS.No. 768 of 1998 (B)** **--------------------------------** **[AGAINST THE DECREE AND JUDGMENT IN OS.NO.13/1976 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM, DTD. 29/08/1998]** ## **APPELLANTS/ADDL. DEFENDANTS 6 & 7:** **------------------------------------------------------------** **1. K.G. KOSHY, S/O. KOCHUKUNJU GEORGE, KARIPPATTIL PUTHENVEETTIL, KARIPPUZHA MURI, KULANADA.P.O., KULANADA VILLAGE, KOLENCHERRY TALUK.** **2. C.A. GEORGE, S/O. CHACKO, ERUTHIKOVIL VILLA, P.O. MANTHUKA, KULANADA VILLAGE, KOZHENCHERRY TALUK.** ## ***ADDL. A3 & A4 IMPLEADED:** - ***3. K.M. MATHAI, S/O. K.M. PAPPY, KOLLESSERIL HOUSE, NJETTUR, KULANADA.P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** - ***4. K.J. JOHN, S/O. K.O. JOHN, KOYIPURATHU HOUSE, MANTHUKA.P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** ***ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 & 4 AS PER ORDER DATED 28/09/2011 IN I.A. 2786/2011.** **BY SRI.M.C.SEN, SENIOR ADVOCATE, ADVS. SRI.LIJU. M.P, SRI.SAJAN VARGHEESE .K, SRI.GEORGE ZACHARIAH ERUTHICKEL, SRI.P.R.VENKETESH.** ## **RESPONDENTS/IST PLAINTIFF & ADDL. PLAINTIFFS 4 & 5:** **------------------------------------------------------------------------------------** **1. THE ST. THOMAS ORTHODOX SYRIAN CHURCH, MANTHALIR, FOR THE PRESENT REPRESENTED BY REV. FR. KURIAN JOSEPH, RESIDING AT ST. GEORGE CHAPEL BUILDINGS, KULANADA VILLAGE, KULANADA.P.O.** **A.S. NO.768/1998-B:** **2. REV. FR. KURIAN JOSEPH, RESIDING AT ST. GEORGE CHAPEL BUILDINGS, KULANADA VILLAGE, KULANADA.P.O.** **3. P.M. MATHAI, PLAVUNNILKUNNA MANNIL HOUSE, KULANADA VILLAGE, KULANADA.P.O.** - **BY ADVS. SRI. B.G. BHASKER, SRI.BIJU ABRAHAM.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-12-2011, THE COURT ON 04/01/2012 DELIVERED THE FOLLOWING:** **A.S. NO.768/1998-B:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE-I: COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION PUT UP BY THE RESPONDENTS HEREIN.** **ANNEXURE-II: COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION PUT UP BY THE PETITIONERS.** **ANNEXURE III: COPY OF THE PHOTOGRAPH SHOWING THE RECENT CONSTRUCTION PUT UP BY THE PETITIONERS.** **ANNEXURE-A: COPY OF THE ORDER DTD. 09/09/2008 PASSED IN CRIMINAL M.C. NO.3467/2008.** ## **RESPONDENT'S ANNEXURES:-** **ANNEXURE 1: COPY OF THE JUDGMENT IN C.M.A. 9/76 DTD. 09/04/76 OF THE 1ST ADDITIONAL DISTRICT COURT, MAVELIKKARA.** **ANNEXURE 2: COPY OF THE ORDER DTD. 03/03/75 IN M.C. 12/75 OF THE EXECUTIVE 1ST CLASS MAGISTRATE, CHENGANNUR.** **ANNEXURE 1 SERIES: COPIES OF THE PHOTOGRAPHS FOUR IN NUMBERS SHOWING THE PRESENT NATURE OF THE CHURCH FROM DIFFERENT ANGLES.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 768 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2012. ## **JUDGMENT** The additional 6[th] and 7[th] defendants in O.S. 13 of 1976 are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. Before the trial court, there were two suits, namely, O.S. 13 of 1976 and O.S. 149 of 1977 relating to the affairs of St.Thomas Orthodox Syrian Church, Manthalir. Both the suits were concerned with the administration and management of the affairs of the Church. One of the suits was instituted at Munsiff's Court, Chengannur and the other was instituted at Sub Court, Mavelikkara. Later, both the suits were transferred to 1[st] Additional District Court, Ernakulam. 3. In O.S.13 of 1976, it was averred that the second plaintiff was the Vicar and third plaintiff is the lay A.S.768/1998. 2 kaikaran of the plaintiff Church. The fourth plaintiff is the present Vicar and the fifth plaintiff is the present Trustee. Defendants are parish members of the Church. The history of the Church is given in detail, which is not very relevant for the present purpose. After the Apex Court upheld the authority of the Catholicos and the applicability of the Constitution by the decision reported in 1958 SC 721, the Patriarch of Antioch and the Catholicos of Malankara Church settled the dispute regarding the Church. It is averred that the Catholicos appointed various Metropolitans to carry out the administration of the Dioceses. Daniel Mar Phelaminos was the Metropolitan of Thumbamon Diocese. The plaintiff Church is under the administration of the said Diocese. The appointments and transfers of the Vicars of the Church were made by the said Metropolitan and the second plaintiff was appointed by the said Metropolitan. The assets of the plaintiff Church were being administered by the Vicar and lay Kaikkaran elected by the parish assembly and approved by the Diocesan Metropolitan. By the end of 1974, a small A.S.768/1998. 3 faction of the parishners including the defendants joined with the Patriarch group and raised untenable disputes. On 31.8.1975 the Edavaka Yogam of the plaintiff Church resolved that the administration of the assets of the plaintiff Church shall be carried on by the second plaintiff alone. It is claimed that on 11.1.1976 the third plaintiff was elected as the lay trustee and thereafter the affairs of the Church were being carried on by the second and third plaintiffs jointly. Pursuant to a law and order problem created by defendants 1 to 5, the Executive Magistrate of Chengannur initiated proceedings under Section 145 of the Criminal Procedure Code and the plaintiff Church and its properties were attached and put under the control of the Village Officer, Kulanada, who was appointed as the Receiver. The defendants are calling in question the lawful authority of plaintiffs 2 and 3 in the management of the affairs of the Church. Since the defendants are challenging the authority of Daniel Mar Phelaxinos, the plaintiffs are entitled to get declaration that the Catholicos of the Malankara Church, A.S.768/1998. 4 Daniel Mar Phelaxinos Metropolitan, the second plaintiff, Vicar and the third plaintiff trustee and their successors in office are entitled to manage the affairs of the Church. They are also entitled to get a declaration that the members appointed by the Priests appointed by the Metropolitan are entitled to conduct services in the plaintiff Church and cemetry. They also seek a permanent injunction restraining the defendants and their supporters from entering into the plaintiff Church, cemetry and plaint schedule property or causing any obstruction to the administration of the Church by the duly appointed persons by the Metropolitan. 4. Defendants 1 and 5 resisted the suit. It is pointed out by them that the suit is bad for want of recourse to Section 92 of the Code of Civil Procedure. Since the suit has been instituted without prior sanction, it should fail. According to them, the chapel in plaint schedule item No.3 was established by the Patriarch faction and it belongs to them exclusively. The Malankara Church is a part of the Syrian Orthodox Church and its spiritual head is the A.S.768/1998. 5 patriarch of Antioch. Malankara Syrian Christian Association is an association devised for the followship and co-operation in common affairs and it has no ecclesiastical authority over the individual parish churches. There are two factions in the Church, namely, Patriarch faction and catholicos faction. The written statement narrated the various litigations between the parties, which are not very relevant for the present purpose. According to them, as per Kalpana dated 21.8.1975, the Patriarch declared Mar Baselios Ougen-I and Daniel Mar Phelainos and other Metropolitans as apostates. Accordingly, it is contended that thereafter the Catholicos and the Metropolitans are having no rights or authority over the plaintiff Church and its properties. The Constitution of 1934 was adopted only by the Catholicos faction and is not applicable to the patriarch faction. Diocesan Metropolitan has no right or authority to appoint Vicars of the plaintiff Church. Vicars and priests are to be appointed only with the sanction of the parishners. The plaintiffs are not entitled to any relief. A.S.768/1998. 6 5. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A18 from the side of the plaintiffs. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B5 marked. On an appreciation of the evidence in the case, the trial court passed the following decree: _“In the result, plaintiffs title over all the plaint schedule properties and the Church is declared. Plaintiffs are entitled to conduct services in the plaint church and administer the entire properties, except plaint item number 3 in accordance with the provisions of the Constitution of 1934 of the Church. Defendants can continue to conduct services in the chappal situated in the 5 cents shown as plaint item No.3, until a new Managing Committee is elected for the entire Malankara Orthodox Syrian Church and that Committee takes decisions. Till then the defendants are restrained from causing any obstructions to the plaintiffs 4 and 5 and their successors in office in conducting services or_ A.S.768/1998. 7 _administering the plaint schedule properties except plaint item No.3._ _As mentioned above, all the plaint schedule properties are under the management of the receiver in M.C.12/75. It is represented that M.C.12/75 was subsequently transferred to the Executive First Class Magistrate, Alleppey and it is renumbered as M.C.76/84. A direction is given to the Revenue Divisional Officer, Alappuzha as well as the Receiver to hand over possession of plaint schedule properties except item No.3 to plaintiffs 4 and 5 and item No.3 to the defendants.”_ 6. In the light of the reliefs granted in O.S.13 of 1976, the court felt it unnecessary to grant any further relief in O.S.149 of 1977. The said judgment and decree are assailed in this appeal. 7. Learned counsel appearing for the appellants relying on the decision reported in **St. Peter's Orthodox Syrian Church v. Fr.Abraham Mathews** (2011(4) K.L.T. 540) contended that in an identical case, this court had occasion to hold that the suit falls within Section 92 of the A.S.768/1998. 8 Code of Civil Procedure and unless sanction is obtained, the suit is not maintainable. The principle laid down in the said case is applicable to the case on hand and the suit is only to be dismissed. It is pointed out that on a reading of the plaint and the reliefs sought for in the plaint, it could be easily seen that the reliefs sought for fall within the ambit of Section 92 of the Code of Civil Procedure and if that be so, the suit instituted without sanction is bad in law. 8. Learned counsel appearing for the respondents on the other hand contended that the Church is not a public trust and therefore Section 92 has no application. The parish members are the hereditary trustees of the Church and 1934 Constitution has been adopted for the Church and the affairs of the Church are being carried on in accordance with the said Constitution. The right to appoint, transfer or remove the Vicar and the Priests in the plaintiff Church is vested with the Diocese Metropolitan. The second plaintiff was so appointed. The religious worship and sacraments in the Church are to be done by the Vicar appointed by the 9 A.S.768/1998. Metropolitan. The Church has to be administered by the Vicar and lay Kaikaran elected by the Edavaka Yogam and approved by the Diocesan Metropolitan. The parish assembly on 31.8.1975 resolved that the administration of the assets of the plaintiff Church shall be carried on by the second plaintiff alone. It is pointed out that since Section 92 is not applicable to the facts of the case, the contention that the suit not maintainable cannot be countenanced. The affairs of the Church are being carried on by the trustees appointed by the Metropolitan and there are no grounds made out to interfere with the judgment and decree of the court below. 9. The primary question that arises for consideration is whether the suit falls within the ambit of Section 92 of the Code of Civil Procedure. Learned counsel appearing for the appellants would contend that in view of the decision reported in **St. Peter's Orthodox Syrian Church's case** the respondent cannot be heard to say that the suit is not one falling under Section 92 CPC. It is also A.S.768/1998. 10 contended that on going through the plaint, it could be seen that the averments are almost identical to the averments in the decision cited above and the said case also falls within Section 92. 10. It is contended on behalf of the respondents that this court has not considered the various aspects arising for consideration in the decision cited above regarding the administration and management of the Church and the nature of the Church. It is very vehemently contended that the Church cannot be treated to be a public trust and if that be so, Section 92 is not applicable. 11. Inspiration is drawn from certain provisions of 1934 Constitution to contend for the position that the Church is not a public trust. Before going into that question, it will be useful to refer to **St. Peter's Orthodox Syrian Church's case** . That decision was concerned with the administration of St.Peter's Orthodox Syrian Church, Puthencruz. After noting the difference between a Temple, Mosque and a Church and also various other aspects and A.S.768/1998. 11 also after referring to the 1934 Constitution, the court ultimately held that the Church is a public trust falling within the ambit of Section 92. After considering the various decisions and provisions of the Constitution, it was held as follows: _“We have therefore absolutely no doubt in our mind that the St.Peter's Orthodox Syrian Church, Puthencruz is a public religious and charitable trust to which S.92 C.P.C. squarely applies.”_ 12. It was contended on behalf of the respondents that the court, while deciding the case in **St. Peter's Orthodox Syrian Church's case** has omitted to note various vital facts which would indicate that the Church cannot be a public trust. Learned counsel pointed out that the Church differs considerably from a Mosque and Temple and the provisions applicable to the Mosque and Temple cannot be applied to the Church. The provisions of the 1934 Constitution was referred to and it was pointed out that it is not as if any Christian has a right of worship in the Church. A.S.768/1998. 12 The right to receive sacraments etc are confined to the parishners of the Church and therefore each Church is confined to a specific body of persons and therefore one of the modes applicable to ascertain whether the institution is a public trust or not is absent in the case of a Church. It is pointed out that there is a register of parishners and there is a parish assembly which elects the Governing Body. It is pointed out that the parishners of a parish assembly consists of persons above 21 years of age including male and female. There is a register known as confession register. Referring to Section 25 of the Constitution, it was contended that the members of the parish managing committee except steward are to be elected by the parish assembly and their term is for a period of one year. Various other provisions relating to the maintenance of the register etc are referred to in detail. 13. Though the above facts had been pointed out to contend for the position that the Church is not a public trust, it is of little help to the plaintiffs. In fact in paragraph 24 of the decision in **St. Peter's Orthodox** A.S.768/1998. 13 **Syrian Church's case** the above aspects have been noticed and considered in detail. As noticed in the above case, in the plaint in the case on hand also it is not shown that the Church is a private trust. All the tests applied in the case applies to the facts of the present case also and the distinction that is sought to be drawn is without basis and all those factors which the learned counsel for the respondent highlighted for the position that the Church is a private church is absent here. In the light of the said fact, there is no merit in the contention that the Church is not a public trust. 14. In order to establish that Section 92 has application to the case, the following conditions will have to be satisfied: _“(a) There is a trust created for public purposes of a charitable or generous nature;_ _(b) There is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such trust;_ A.S.768/1998. 14 _(c) The suit must be a representative one on behalf of the public and is not by individuals for their own interest; and_ _(d) the relief claimed in the suit is the one or other reliefs mentioned in the section.”_ 15. It is by now well settled that the averments in the plaint has to be looked into to ascertain whether the suit falls within the ambit of Section 92. It is not in dispute that the suit is a representative suit and it relates to the administration and management of the affairs of St.Thomas Orthodox Syrian Church. It is averred in the plaint that the second plaintiff is the Vicar of the said Church and the third plaintiff is the lay kaikkaran. Then the history of the Church is narrated. In paragraph 4, it is pointed out that there were some disputes between the parties about the authority of the Catholicate over the Malankara Church and settlement of dispute in O.S. 94 of 1988 before District Court, Thiruvananthapuram. In paragraph 5, it is stated that on 26.12.1934 the Malankara Association, the body competent to do all things for and on behalf of the Malankara Church, A.S.768/1998. 15 and its constituent parish churches and consisting of elected and authorised representatives from all parish churches formed a constitution for the administration of the Malankara Church and its dioceses and parishes and defined the powers of various authorities. It then refers to certain other litigations and points out that the affairs of the Malankara Church was being carried on in terms of the provisions of the Constitution. The first accused is alleged to have joined the opposite faction and therefore according to the plaint he has disentitled himself to be the kaikaran. The further averment in the plaint is that on 31.8.1975 the parish yogam of the plaintiff Church resolved that the administration of the assets of the Church shall be carried on by the second plaintiff alone. Consequently the third plaintiff was elected as the new kaikkaran and a new committee was elected. The Diocesan Metropolitan approved the said election. It is claimed in the plaint that the second plaintiff is entitled to conduct and control all affairs of the Church and plaintiffs 2 and 3 are entitled to be A.S.768/1998. 16 in possession, control and in management of all affairs of the plaintiff Church. It then mentions the trouble creation of defendants 1 and 2 and consequent action on the part of the Magistrate and putting it under a receiver. The reliefs in the plaint read as follows: _“A) To declare that the present Catholicoscum-Malankara Metropolitan Moran Mar Baselion Marthoma Mathews I, Diocesan Metropolitan of Thumpamon, Daniel Mar Phelaxinos and under them the 2[nd] plaintiff as Vicar and 3[rd] plaintiff as Kaikkaran or their successors in office alone are entitled to administer the affairs of the plaint Church and be in possession of the church properties in the plaint schedule according to the constitution of the Malankara Orthodox Syrian Church._ _B) To declare that the Catholicose-cumMalankara Metropolitan, the diocesan Metropolitan of the Malankara Orthodox Syrian Church and Priests appointed or allowed by them alone can officiate and conduct services in the plaint church or cemetry in the properties scheduled._ A.S.768/1998. 17 _C) To restrain by permanent injunction the defendants or their supporters who defy the authority of the Catholicos-cum-Malankaa Metropolitan, Diocesan Metropolitan or Vicars from entering into the church, cemetery or plaint scheduled properties or causing any obstruction to the administration or conduct of services by them or allow any priests who defy their authority from entering the church and cemetery or plaint scheduled properties and conducting any services therein and also temporary injunction till the disposal of the suit._ _D) Directing the receiver appointed in M.C.12/75 on the file of Executive Ist Class Magistrate Court, Chengannur to hand over possession of the plaint properties to plaintiffs 2 and 3 together with all income collected after dropping all proceedings taken in the above case._ _E) Directing the defendants to pay all costs of this suit to the plaintiffs._ _F) Granting such other reliefs that may be deemed just and proper in the circumstances of this case.”_ A.S.768/1998. 18 16. A reading of the plaint leaves one in no doubt that the reliefs sought for are in respect of a trust and for its management and administration. Through the suit, the authority of the second plaintiff over the affairs of the Church is sought to be asserted to the exclusion of others, more so, in relation to defendants 1 to 5. 17. It is true that the relief sought for is one of declaration. But it is well established now that merely because a declaration is sought for, that by itself will not be sufficient to take out the suit within the ambit of Section 92. The observation of the court below that going by the averments in the plaint and the evidence adduced etc., Section 92 will not be attracted to the facts of the case cannot be accepted. The court below has persuaded to take the view that there was no allegation of mismanagement of the property and there was no prayer for a scheme or direction for administration of the property. 18. The lower court does not appear to be correct in its approach. A reading of the prayers in the plaint A.S.768/1998. 19 leaves one in no doubt that the reliefs sought for clearly fall within the ambit of Section 92. The first relief sought is regarding the vesting of the property in the Vicar of the Church appointed by the Metropolitan concerned. That relief squarely falls within Section 92 of CPC. It also seeks to exclude other persons from interfering with the management and administration of the Church. Similar pleadings and reliefs were considered in the decision reported in St. Peter's Orthodox Syrian Church's case and also in an unreported decision in A.S. 844 OF 1998 and in **Varkey Abraham** v. **St. Thomas Orthodox Syrian Church** (2009(4) KHC 473). 19. It cannot be disputed that the suit is in a representative capacity and was vindicating right of public at large. In the decision reported in **Vidyodaya Trust v. Mohan Prasa** d (2008(2) K.L.T. 68) it was observed as follows: _“As was observed by this Court in Swamy Parmatmanand's case, (supra) to gauge whether_ A.S.768/1998. 20 _the suit was for vindicating public rights, the court has to go beyond the relief and to focus on the purpose for which the suit is filed. To put it differently, it is the object or the purpose for filing the suit and not essentially the relief which is of paramount importance. There cannot be any hard and fast rule to find out whether the real purpose of the suit was vindicating public right or the object was vindication of some personal rights. For this purpose the focus has to be on personal grievances.”_ 20. In the light of the facts and circumstances, it is idle for the respondents to contend that the suit does not fall within the ambit of Section 92. Applying the principles laid down in the decision reported in **St. Peter's Orthodox Syrian Church's case** , there can be no manner of doubt that the church in question is a public trust and going by the averments in the plaint and the reliefs sought for, it squarely falls within the ambit of Section 92. Admittedly no leave has A.S.768/1998. 21 been obtained in the case on hand. The suit has, therefore, necessarily to fail. Accordingly, this appeal is allowed, the impugned judgment and decree are set aside and the suit shall stand dismissed for want of leave to sue under Section 92 of C.P.C. **P. BHAVADASAN, JUDGE** sb.