OP (C) No.248/2021 arising from OS 481/2018, 1st Additional Munsiff's Court, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** ## **MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** ## **OP(C).No.248 OF 2021** **ARISING FROM OS 481/2018 OF 1[st] ADDITIONAL MUNSIFF COURT, KOTTAYAM** ## **PETITIONERS/DEFENDANTS 6 TO 14, 16, 17, 19 & 20 TO 22/15TH RESPONDENT** - **1 FR.E.T.KURIAKOSE CORE EPISCOPA AGED 82 YEARS RESIDING AT ITTIADATHU HOUSE, MANARCAD VILLAGE, MALAM KARA, MALAM P.O., KOTTAYAM TALUK, KOTTAYAM-686 019.** - **2 FR.KURIAKOSE KIZHAKKEDATHU, AGED 77 YEARS RESIDING AT KIZHAKKEDATHU HOUSE, MANARCAD VILLAGE, MALAM KARA, MALAM P.O., KOTTAYAM TALUK, KOTTAYAM-686 019.** - **3 FR.KURIAKOSE ABRAHAM, AGED 66 YEARS KARUKAYIL HOUSE, MANARCAD VILLAGE, MALAM KARA, MALAM P.O., KOTTAYAM TALUK, KOTTAYAM-686 019.** - **4 FR.MATHEWS MANAVATH, AGED 65 YEARS MANAVATH HOUSE, MANARCAD VILLAGE, KUZHIPURAYIDOM KARA, MANARCAD P.O., KOTTAYAM TALUK-686 019.** - **5 FR.ANDREWS CHIRAVATHARA, AGED 60 YEARS CHIRAVATHARA HOUSE, MANARCAD VILLAGE, KUZHIPURAYIDOM KARA, THIRUVANCHOOR P.O., KOTTAYAM TALUK-682 019.** - **6 FR.KURIAKOSE KALAYIL, AGED 58 YEARS KALAYIL HOUSE, MANARCAD VILLAGE, MALAM KARA, MALAM P.O., KOTTAYAM TALUK-686 019.** - **7 FR.MI THOMAS MATTATHIL, AGED 62 YEARS MATTATHIL HOUSE, MANARCAD VILLAGE, MALAM KARA, MALAM P.O., KOTTAYAM TALUK-686 019.** OP (C) No.248/2021 -2- - **8 FR.K.M.GEORGE, AGED 52 YEARS KUNNEL HOUSE, MANARCAD VILLAGE, MANARCAD KARA, MANARCAD P.O., KOTTAYAM TALUK-686 019.** - **9 FR.ABY JOHN, AGED 34 YEARS, SON OF JOHN, KURICHIMALA HOUSE, PAMPADY VILALGE, VELLOOR KARA, VELLOOR P.O., KOTTAYAM TALUK-686 501.** - **10 T.P.PHILIP,** **AGED 68 YEARS, SON OF PHILIP, CHEMMATHU HOUSE, MANARCAD VILLAGE, MANARCAD KARA, MANARCAD P.O., KOTTAYAM TALUK, KOTTAYAM-686 019.** - **11 SABU ABRAHAM, AGED 54 YEARS, SON OF ABRAHAM, MYLAKKATTU HOUSE, MANARCAD VILLAGE, MANARCAD KARA, MANARCAD P.O., KOTTAYAM TALUK, KOTTAYAM-686 019.** - **12 RENJIT MATHEW, AGED 52 YEARS, SON OF MATHEW, OTTAPLACKAL HOUSE, MANARCAD KARA, MANARCAD VILLAGE, MANARCAD P.O., KOTTAYAM-686 019.** - **13 MATHEW JACOB, AGED 60 YEARS, SON OF MATHEW, KOCHUPARAMBIL HOUSE, MALAM KARA, MALAM P.O., MANARCAD VILLAGE, KOTTAYAM-682 019.** - **14 SHAJI MATHEW, AGED 58 YEARS, SON OF MATHEW, PUTHUMANA HOUSE, MALAM KARA, MALAM POST, MANARCAD VILLAGE, KOTTAYAM-682 019.** - **15 MELVIN V.KURUVILLA, AGED 28 YEARS, SON OF KURUVILLA, THALACHIRACKAL HOUSE, MALAM KARA, MALAM POST, MANARCAD VILLAGE, KOTTAYAM-682 019.** **BY ADVS. SRI.P.J.PHILIP SMT.SMITHA GEORGE** ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 TO 5 & 18:** - **1 SANTHOSH GEORGE AGED 51 YEARS** **SON OF LATE FR.GEORGE MOOLAYIL, RESIDING AT MOOLAYIL HOUSE, MANARCAD VILLAGE, KUZHIPURAYIDAM KARA, MANARCAD P.O., KOTTAYAM TALUK-686 019.** OP (C) No.248/2021 -3- - **2 M.A.CHERIAN, AGED 89 YEARS** **SON OF ANDREWS, RESIDING AT MANIALA HOUSE, MANARCAD VILLAGE, AREEPARAMPU KARA, AREEPARAMPU (PO), KOTTAYAM TALUK-686 501.** - **3 ST.MARY'S CHURCH(CATHEDRAL) MANARCAD, ALLEGEDLY REPRESENTED BY ITS VICAR FR.LAIJU MARKOSE @ JAMES MARKOSE, S/O.MARKOSE, AGED 40 YEARS, RESIDING AT PADIYARA HOUSE, PANACHIKADU VILLAGE, PATHAMUTTAM KARA, PATHAMUTTAM (PO), KOTTAYAM TALUK (AS WRONGLY DESCRIBED IN THE PLAINT).** - **4 FR.LAIJU MARKOSE @ JAMES MARKOSE, AGED 40 YEARS, SON OF MARKOSE, RESIDING AT PADIYARA HOUSE, PANACHIKKADU VILLAGE, PATHAMUTTAM KARA, PATHAMUTTAM P.O., KOTTAYAM TALUK-686 532.** - **5 FR.ABRAHAM VARGHESE, AGED 37 YEARS, SON OF V.V.JOY, RESIDING AT VADASSERIL HOUSE, PANACHIKKADU VILLAGE, KOLLADU KARA, KOLAD P.O., KOTTAYAM TALUK-686 004.** - **6 FR.ANDREWS JOSEPH, AGED 32 YEARS, SON OF JOSEPH, RESIDING AT IKARAMATTATHIL HOUSE, PAMPADY VILLAGE, PAMPADY KARA, SOUTH PAMPADY P.O., KOTTAYAM TALUK-686 521.** - **7 FR.ABRAHAM JOHN @ JOHN P.ULAHANNAN, AGED 32 YEARS, THEKKATHARAYIL HOUSE, THOTTAKADU VILLAGE, THOTTAKADU KARA, THOTTAKADU P.O., CHANGANACHERRY TALUK-686 539.** - **8 MATHEW P.T., AGED 59 YEARS, SON OF KORA THOMAS, RESIDING AT PADIYARA HOUSE, MALAM KARA, MALA (PO), MANARCAD VILLAGE, KOTTAYAM-686 019.** **R4 BY ADV. SRI.S.SREEKUMAR (SR.)** - **R4 BY ADV. SRI.ROSHEN.D.ALEXANDER** - **R4 BY ADV. SHRI.HARIMOHAN** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (C) No.248/2021 -4- ## **GOPINATH P., J.** ------------------------------------------------- ## **O.P (C) No. 248 OF 2021** ------------------------------------------------DATED THIS THE 1[st] DAY OF FEBRUARY, 2021 ## **J U D G M E N T** ## Gopinath, J: This original petition has been filed seeking the following reliefs: _"A. Direct the Additional Munsiff's Court of Kottayam to dispose of O.S. No.481/2018 as having become infructuous;_ _B. Direct the Additional Munsiff's Court, Kottayam, not to proceed with relitigation of same question decided in OS No.7/2019 by the Additional Subordinate Judge's Court, Kottayam;_ _C. In the alternative, this Hon'ble Court may be pleased to direct the Additional Munsiff's Court, Kottayam, to hear and decide Ext.P4 (I.A. No.4/2020), Ext.P7 (I.A. No.6/2020), Ext.P8 (I.A No.7/2020), Ext.P9 (I.A. No.2462/2018) and Ext.P11 (I.A. No.4007/2018) before consideration of merits of the suit.”_ I have heard Sri. Ranjith Kumar, Learned Senior Counsel instructed by Sri. P.J.Philip & Smt. Smita George for the petitioners and Sri.S.Sreekumar, Learned Senior Counsel instructed by Sri.Roshen D Alexander for the respondents. 2. The principal contention of the petitioners is that in the light of disposal of O.S No.7/2019 by the 1[st] Additional Subordinate OP (C) No.248/2021 -5- Judge's Court, Kottayam, the 1[st] Additional Munsiff's Court, Kottayam should not proceed with the adjudication of O.S No.481/2018 as the said suit can no longer be adjudicated on merits in the light of disposal of O.S No.7/2019. It appears that following the disposal of O.S. No.7/2019 by the 1[st] Additional Subordinate Judge's Court, Kottayam the petitioners have filed I.A No.4/2020 in O.S No.481/2018 praying that O.S No.481/2018 must be dismissed in the light of adjudication of O.S No.7/2019. The Learned Senior Counsel appearing for the petitioners has drawn my attention to the averments in the Transfer Petition filed by the present respondents (Plaintiffs in O.S No.481/2018) which is annexed as Ext.P13, from which, according to him, it is evident that the issues raised in O.S No.481/2018 & O.S No.7/2019 are the same. He would submit that there is a clear bar in proceeding with O.S No.481/2018 after disposal of O.S No.7/2019, as both cases are substantially between the same parties and relate to the same issues. He places reliance on the judgment of the Supreme Court in _**Jai Singh v. Union of India and others; (1977) 1 SCC 1**_ to contend that parallel remedies in respect of the same subject matter cannot be pursued at the same time. Reliance is placed on _**Pasupuleti Venkateswarlu v. The Motor & General Traders; (1975) 1 SCC 770**_ and on _**Om Prakash Gupta v. Ranbir B. Goyal;**_ OP (C) No.248/2021 -6- _**(2002) 2 SCC 256**_ and also on _**Shipping Corporation of India Ltd. v. Machado Brothers and others; (2004) 11 SCC 168**_ to contend that even subsequent events (events taking place after the institution of a suit) can be taken into consideration for deciding the question as to whether a suit has become infructuous or otherwise not maintainable. 3. On the other hand the learned Senior Counsel appearing for respondents 1 to 8 would contend that the scope of O.S No.7/2019 which was disposed of by the 1[st] Additional Subordinate Judge's Court, Kottayam and the scope of O.S No.481/2018 pending before the 1[st] Additional Munsiff's Court, Kottayam are completely different and the disposal of O.S No.7/2019 will have no bearing on the adjudication of O.S No.481/2018. He would also submit that it is clear from the proceedings marked as Ext.P6 that the Court is, based on the directions issued by the Supreme Court in the decision reported in _**Fr. Issac Mattammel Cor Episcopa v. St. Mary's Orthodox Syrian Church; 2019 (4) KLT 1,**_ considering the issue as to whether the case is covered by the decision of the Supreme Court in _**Varghese v. St. Peter’s & St. Paul’s Syrian Orthodox Church; 2017 (3) KLT 261 (SC)**_ . He contends that in the light of the direction contained in the order in _**Fr. Issac Mattammel Cor Episcopa (supra)**_ , the OP (C) No.248/2021 -7- learned Munsiff cannot be faulted for considering the issue in the manner directed by the Supreme Court. Notwithstanding his objection, as above, the Learned Senior Counsel for the Respondents would submit that he will have no objection to I.A No.4/2020 in O.S No.481/2018 being considered by the Learned Munsiff provided that it is made clear that this Court has not expressed any opinion on the merits of the matter. 4. Considering the contentions raised by either side, I believe that it is only appropriate that I.A No.4/2020 in O.S No.481/2018 is heard and decided simultaneously with the issue being considered as per Ext.P6 proceedings as the prayer in I.A No.4/2020 is to dismiss O.S No.481/2018 as infructuous. 5. The Learned Senior Counsel appearing for the petitioners would submit that despite other applications such as Exts.P7, P9 & P11 now pending it would suffice if a direction is issued to the 1[st] Additional Munsiff's Court, Kottayam to hear and decide I.A No.4/2020 as the issue as to whether O.S No.481/2018 has become infructuous is to be considered in that interlocutory application. 6. Accordingly, there will be a direction to the 1[st] Additional Munsiff's Court, Kottayam to consider and pass orders on I.A No.4/2020 in O.S No.481/2018 simultaneously with consideration of OP (C) No.248/2021 -8- issues which are reflected in Ext.P6 proceedings within 3 weeks from the date of receipt of a certified copy of this judgment. 7. Obviously the consideration of the issues reflected in Ext.P6 proceedings will continue only if the suit is found to be maintainable. I make it clear that the 1[st] Additional Munsiff's Court, Kottayam shall decide the issues as above, untrammelled by any observations in this judgment which are made only to decide this original petition and not for any other purpose. I also make it clear that I have not expressed any opinion on the merits of the contentions raised by either side. This Original petition will stand disposed of accordingly. (Sd/-) **GOPINATH P. JUDGE.** ## **AMG** OP (C) No.248/2021 -9- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT OS NO.481/2018 FILED SANTHOSH GEORGE AND ANOTHER BEFORE THE MUNSIFFS COURT, KOTTAYAM DATED 09.07.2018.** **EXHIBIT P2 TRUE COPY OF THE PLAINT OS NO.7/2019 FILED BY ST.MARY'S CHURCH (CATHEDRAL) MANARCAD BEFORE THE SUB COURT, KOTTAYAM DATED 29.01.2019.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18.09.2020 IN OS NO.7/2019 PASSED BY THE COURT OF THE ADDITIONAL SUB JUDGE, KOTTYAM.** - **EXHIBIT P4 TRUE COPY OF IA NO.4/2020 IN OS NO.481/2018 FILED BY ABU ABRAHAM AND ANOTHER BEFORE MUNSIFF COURT, KOTTAYAM DATED 28.09.2020.** - **EXHIBIT P5 TRUE COPY OF WRITTEN STATEMENT FILED BY MELWIN T.KURUVILLA IN OS NO.481/2018 BEFORE THE MUNSIFFS COURT, KOTTAYAM DATED 29.09.2020.** - **EXHIBIT P6 TRUE COPY OF ORDER IN IS NO.481/2018 OF THE ADDL.MUNIFFS COURT, KOTTAYAM DATED 07.12.2020 AS DOWNLOADED FROM E-COURT WEB.** - **EXHIBIT P7 TRUE COPY OF IA NO.6 OF 2020 IN OS NO.481 OF MUNSIFF COURT, KOTTAYAM FILED BY SABU ABRAHAM AND ANOTHER.** - **EXHIBIT P8 TRUE COPY OF IA NO.7/2020 IN OS NO.481/2018 FILED BY SABU ABRAHAM AND ANOTHER BEFORE THE MUNSIFF COURT, KOTTAYAM DATED 15.12.2020.** - **EXHIBIT P9 TRUE COPY OF IA NO.2482/2018 IN OS NO.481/2018 FILED BY SABU ABHRAHAM BEFORE THE MUNSIFFS COURT, KOTTAYAM DATED 29.08.2018.** - **EXHIBIT P10 TRUE COPY OF WRITTEN STATEMENT AND COUNTER CLAIM FILED BY ST.MARY'S CHURCH (CATHEDRAL) MANARCADU AND OTHERS IN IS NO.481/2018 OF MUNSIFF COURT, KOTTAYAM.** **EXHIBIT P11 TRUE COPY OF THE IA NO.4007/2018 IN OS NO/481/2018 DATED 05/.12.2018 BEFORE THE KUNSIFF COURT, KOTTAYAM.** |OP (C) No.248/2021|-10-| |---|---| |**EXHIBIT P12**|**TRUE COPY OF ORDER IN OP NO/.2/2019 DATED**| ||**28.01.2019 PASSED BY THE ADDL.SUB JUDGE,**| ||**KOTTAYAM.**| |**EXHIBIT P13**|**TRUE COPY OF OP(TP) NO.26/2019 FILED BY**| ||**SANTHOSH GEORGE AND ANOTHER BEFORE THE**| ||**HONOURABLE DISTRICT COURT, KOTTAYAM DATED**| ||**06.02.2019.**| |**EXHIBIT P14**|**TRUE COPY OF ORDER IN OP(TP) NO.26/2019 PASSED**| ||**BY THE HONOURABLE DISTRICT COURT, KOTTAYAM**| ||**DATED 19.07.2019.**| |**EXHIBIT P15**|**TRUE COPY OF IA NO.489/2019 IN OS NO.481/2018**| ||**FILED BY SANTHOSH GEORGE AND ANOTHER BEFORE**| ||**THE MUNSIFF COURT, KOTTAYAM DATED 07.02.2019.**| |**EXHIBIT P16**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFFS COURT, KOTTAYAM DATED**| ||**14.02.2019 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P17**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFFS COURT, KOTTAYAM DATED**| ||**12.04.2019 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P18**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFFS COURT, KOTTAYAM DATED**| ||**09.08.2019 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P19**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED**| ||**15.12.2020 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P19 A**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED**| ||**22.12.2020 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P19 B**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED**| ||**31.12.2020 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P19 C**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED**| ||**04.01.2021 AS DOWNLOADED FROM E-COURT WEB.**| |**EXHIBIT P19 D**|**TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF**| ||**THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED**| ||**06.01.2021 AS DOWNLOADED FROM E-COURT WEB.**| OP (C) No.248/2021 -11- **EXHIBIT P19 E TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED 11.01.2021 AS DOWNLOADED FROM E-COURT WEB. EXHIBIT P19 F TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED 19.01.2021 AS DOWNLOADED FROM E-COURT WEB. EXHIBIT P19 G TRUE COPY OF PROCEEDINGS IN OS NO.481/2018 OF THE ADDL.MUNSIFF'S COURT, KOTTAYAM DATED 21.01.2021 AS DOWNLOADED FROM E-COURT WEB.**