OP(C) No. 1738 of 2018 against the order/judgment in OS 42/2003, I Additional District Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940** ## **OP(C).No. 1738 of 2018** **AGAINST THE ORDER/JUDGMENT IN OS 42/2003 of FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM** **PETITIONERS/DEFENDANTS 2, 3, 5 TO 8,10,12,13,17,18 & 21 IN O.S.NO.42 OF 2003:** - **1 M.V. GEORGE AGED 71, S/O. VARKEY, MUREEKAL HOUSE, THALAKODE KARA, KANAYANNUR VILLAGE, KANAYANNUR TALUK.** - **2 P.M. JOY AGED 69 YEARS, S/O. MANI, PADINJAREKUDILIL HOUSE, KOKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK.** - **3 K.P. VARGHESE AGED 74 YEARS, S/O. PATHROSE, KATTARATHUMALIL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK.** - **4 M.Y. SAJU AGED 52 YEARS, S/O. YOHANNAN, ADVOCATE, MALIECKAL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, MANAGER, ST. JOHN'S HIGH SCHOOL, KANNIYATTUNIRAPPU.** - **5 REJI N.K. AGED 52 YEARS, NADUMOLAYIL HOUSE, KUZHIYARA KARA, THIRUVANIYOOR VILLAGE, SECRETARY, ST.JOHN'S HOSPITAL, KANNIYATTUNIRAPPU.** - **6 JOY** - **AGED 55 YEARS, S/O. KOCHUKUNJU, CHELACHUVATTIL, THIRUVANIYOOR KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK.** - **7 YACOB** **AGED 50 YEARS, S/O. KUNJAPPAN, KEELATH, THIRUVANIYOOR KARA, DO VILLAGE, KUNNATHUNADU TALUK.** **OP(C).No. 1738 of 2018** **2** - **8 P.V. KURIACHAN, AGED 73 YEARS, S/O. VARKEY, PUTHENVEETTIL, THIRUVANIYOOR KARA, DO VILLAGE, KUNNATHUNADU TALUK.** - **9 K.T. PAULOSE AGED 60 YEARS, S/O. THOMMAN, KOLLAMKULATHIL, KIDANGAYAM KARA, KANAYANNUR VILLAGE, DO TALUK.** - **10 ELIAS** - **AGED 28 YEARS, S/O. PAPPY, PARAKULANGARA, KIDANGAYAM, KANAYANNUR VILLAGE, DO TALUK.** - **11 GEEVARGHESE AGED 67 YEARS, S/O. YACOB, KOKKATTU, KUZHIYARA KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK.** - **12 T.P. WILSON AGED 45, S/O. PAILY, THACHETH, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK.** **BY ADVS. SRI. P.J. PHILIP SMT. SMITHA GEORGE SRI. P.P. KURIEN** ## **- RESPONDENTS/PLAINTIFFS 1 3/DEFENDANTS 1, 4, 11, 14, 15, 16, 20, 23 IN O.S.42/2003/DEFENDANTS 9,19 AND 22 ARE DEAD AND HENCE NOT JOINED AS PARTIES:** - **1 O.V. JOHNY AGED 58 YEARS, S/O. VARGHESE, OOMELLIL HOUSE, KOKKOPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK - 682 305.** - **2 N.V. GEORGE AGED 62 YEARS, S/O. VARGHESE, NADEVELAPARAMBIL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK - 682 305.** - **3 J. GEORGE** **AGED 86 YEARS, S/O. FR.JACOB, MUREEKKAL HOUSE, THIRUVANIYOOR KARA, DO VILLAGE, KUNNATHUNADU TALUK, PIN - 682 308.** - **4 ST. JOHN'S ORTHODOX SYRIAN CHURCH KANNIYATTUNIRAPPU, KUZHIYARA KARA, THIRUVANIYOOR VILLAGE, REPRESENTED BY ITS VICAR, PIN - 682 312.** **OP(C).No. 1738 of 2018** **3** - **5 FR. JOHN MOOLAMATTOM** - **AGED 62 YEARS, S/O. KURIAKOSE, VICAR, ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU - 682 308.** - **6 BENNY PAUL** - **AGED 45, S/O. PAILY, PATTULLIL, THIRUVANIYOOR KARA, DO VILLAGE, KUNNATHUNADU TALUK, PIN - 682 308.** - **7 C.A. THANKACHAN AGED 53 YEARS, S/O. ABRAHAM, CHIRAPPATTU, KIDANGAYAM KARA, KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN - 682 305.** - **8 BABU AGED 50 YEARS, S/O. VARGHESE, CHIRPPATTU, KIDANGAYAM KARA, KANAYANNUR VILLAGE, DO TALUK, PIN - 682 305.** **9 V.M. PAULOSE AGED 65 YEARS, S/O. MATHEW, VAZHAKALAYIL, KANAYANNUR VILLAGE, DO TALUK - 682 305.** **10 N.U. JOSEPH AGED 65 YEARS, S/O. ULAHANNAN, NJATTUTHOTTIYIL, KUZHIOYARA KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK - 682 312.** **11 JOHN N.V. AGED 54 YEARS S/O. VARKEY KURIAKO, NADUMOLAYIL HOUSE, KANNIYATTUNIRAPPU, KUZHIYARA P.O., ERNAKULAM DISTRICT, PIN - 682 312.** **BY ADVS. SRI.P.MARTIN JOSE SRI. P. PRIJITH SRI. S. SREEKUMAR (SR.) SRI. THOMAS P.KURUVILLA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2018, THE COURT ON 10.09.2018 PASSED THE FOLLOWING:** **OP(C).No. 1738 of 2018** **4** ## **JUDGMENT** This original petition is filed under Article 227 of the Constitution of India seeking for a relief to set aside the order dated 5.7.2018 in O.S.42/2003 on the files of the I Additional District Court, Ernakulam. 2. The facts necessary for consideration of this petition is as follows: Three parishioners of St. John's Orthodox Syrian Church, Kanniyattunirappu, Kuzhiyara Kara, Thiruvaniyoor Village filed a suit as O.S.No.42/2003 praying for the reliefs related to the administration of the said church arraying the church and other persons as defendants. While considering the matter, the trial court passed orders in I.A.817/2004 which was challenged before this court by defendants 2 and 3 by filing writ petition No.3497/2005. In that writ petition this court directed to conduct election to the managing committee of the 1[st] defendant Church in accordance with 1934 Constitution of Malankara Church. As two receivers so appointed were not continued, Adv. Sri. A. Balagopal was appointed as Commissioner. After hearing the parties and their contentions, the court below gave 9 directions as follows: 1. The commissioner shall prepare a fresh voters list of eligible **OP(C).No. 1738 of 2018** **5** parishioners in accordance with the 1934 constitution for election to the managing committee of D1 church. 2. The commissioner should ensure that the persons claiming to become voters confess before the vicar appointed under the 1934 Constitution. If for any reason, any member of the parish is reluctant to confess before D4, he or she may do so before any other vicar appointed under the 1934 constitution. For any such person, a letter recommending and permitting confession before any other priest appointed under the 1934 constitution shall be issued by D4. Needless to say that after making such confession, the concerned person should obtain a certificate from the outside vicar before whom he or she confessed. In such cases, the outside vicar should forward, along with the confession, a letter of undertaking that he swears allegiance to the 1934 constitution. 3. D4 shall hand over the confession register and the list of persons who confessed before him to the Advocate Commissioner. 4. The persons who took confession before outside vicars shall hand over the certificates to the commissioner who shall intimate the same to D4 Vicar. 5. Receipts evidencing payment of øÖàÖ and §¿Õµ çÍÞ·¢ shall also be produced by the aspiring voters before the Advocate Commissioner. Each and every one of them shall also file affidavits declaring their allegiance to the 1934 constitution before the commissioner. 6. This court expects the commissioner, a respectable, senior member of this bar to conduct the election in a free and fair manner. Needless to say that the commissioner shall carefully examine the documents produced before him before proceeding with the process of election. 7. The commissioner is at liberty to seek directions of this court if the situation so warrants. 8. This court will declare the date of election and other modalities after receiving the interim report of the commissioner after compliance with all the above. **OP(C).No. 1738 of 2018** **6** 9. The direction of this court regarding the approval of D4 in matters related to the conduct of elections will be subject to the decision of the Hon'ble Court in RFA 196/2013. These directions given by the court below are actually under challenge before this court. The plaintiffs before the court belong to Catholicose faction whereas the defendants belong to the Patriarch faction. 3. When the original petition came up for hearing, the learned senior counsel Sri. K. Ramkumar submitted before this court that here is a case where the court below has committed illegality and the order passed is perverse. 4. The main argument advanced before this court is that as evident from the impugned order, an Advocate Commissioner was appointed to conduct the election. There is already a list prepared by the earlier Commissioner which was approved by the court below as well as by this court. It is the submission that even though writ petition No.3720/2006 was filed before this court, it was not successful. When there is a list prepared by the commissioner, which was not set aside by the court below, a further direction fixing the voters is prima facie illegal. When prima facie such a direction is illegal, an interference by this court is warranted. In support of the said contention, learned counsel **OP(C).No. 1738 of 2018** **7** brought to the attention of this court to page No.3 of the judgment in WP(C) 3720/2006 wherein it stated as follows: "Accordingly the Special Court appointed Advocate Shri. K.P. Sreekumar as Receiver to conduct election to the Managing Committee of the first petitioner. St. John's Orthodox Syrian Church, Kanniyatunirappu. Receiver submitted Exhibit P7, Report No.2 dated 4.1.2006 seeking directions from the Special Court in the matter of preparation of final list of eligible voters of the parishioners of the first petitioner. The Special Court after hearing both sides issued Exhibit P11, order dated 25.1.2006 on that report. Petitioners are aggrieved by that order and seek to quash the said order, invoking the power of this Court under Article 227 of the Constitution. 5. The submission of the learned counsel is that when a list is already prepared, a further list is not warranted especially in this case. The learned counsel further submitted that the persons claim to be voters need to confess before the vicar appointed under 1934 Constitution. It is the further submission of the learned counsel that, in the suit, defendant No.4 is the vicar against whom an array of cases is therein. To substantiate this contention, the learned counsel points out that the 5[th] respondent/4[th] defendant-Fr. John Moolamattom filed criminal M.C. No.6715/2017 to quash the proceedings in C.P No.3/2017 on the files of the Gramanyayalaya, Vadavukode where the offences are under Sections 294 (b), 323 and 506 (c) of IPC. But it can be seen that the said petition was dismissed. Similarly D4 is a party respondent in Crl.M.C **OP(C).No. 1738 of 2018** **8** 1000/2018, where this court quashed a criminal proceeding. It is the submission of the learned counsel that when persons are compelled to confess before the said person or approach such a person, especially woman parishioners, it is nothing but against the valuable right of privacy of the said persons. It is also the submission of the learned counsel that the Hon'ble Apex Court upheld this aspect in **Justice K.S. Puttaswamy (Retd) v. Union of India [(2017) 4 KLT (SC) 1]** . In paragraphs 28 and 30 of the said judgment by Justice Bobde, it is stated as follows: “....... There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless and individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and deaths are events when privacy is required for ensuring dignity amongst all civilized people --- [paragraph 28 of judgment by Justice Bobde---- “It is difficult to see how dignity-whose Constitutional significance is acknowledged both by the Preamble and by this Court in its exposition of Article 21, among other rights-can be assured to the individual without privacy. Both dignity and privacy are intimately interwined and are natural conditions for the birth and death of individuals, and for many significant events in life between these events. --- [paragraph 30 of Judgment by Justice Bobde @ page 197. Thus, by directing confession before such a person is violative of the fundamental right of the parishioners and such a direction by the court below is basically illegal and erroneous. It is the submission that WP(C) 3720/2006 was filed by St. John's Orthodox Syrian Church as well as by Fr. John **OP(C).No. 1738 of 2018** **9** Moolamattom, who are the respondents No.4 and 5 in this petition. In paragraph 8 of the said judgment, it is stated that confession is a sacrament and contesting respondents have no case that Hudya Canon accepted in **P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]** does not provide that at least once in a year all men and women belonging to the church should undergo confession. In paragraph 9 it is further held that “I could not find any clause in Exhibit P3 which stated that Confession should be to the vicar of the parish concerned”. In that petition Ext.P3 is the 1934 Constitution of Malankara Orthodox Syrian Church. It is the submission of the learned counsel that this court once on considering Ext.P3, as stated above, came to a definite conclusion that confession need not be to the vicar of the parish concerned. It is to be remembered that this court came to such a conclusion in the proceeding which will be binding upon the court below when 1934 constitution is upheld by the Hon'ble Apex Court in a recent decision in **Varghese v. St Peter's & Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)]** . When the confession need not be before the vicar of the very same church, which is not contemplated in 1934 constitution, this court cannot vary the same as it is in tune with the decision of the Hon'ble Apex **OP(C).No. 1738 of 2018** **10** Court. Thus, the learned senior counsel's submission is that, not only this court but also the trial court is bound by the said decision as long as a Bench having co-equal strength considered the same. 6. The submission of the learned counsel for the respondent is that actually no Advocate Commissioner was appointed, but a receiver was appointed. When the receiver was changed, the new receiver who appointed to conduct the election was directed to prepare the voters list and directions are given in tune with 1934 constitution which is upheld by the Honourable Supreme Court in Varghese's case (supra). It is the further submission that confession also, as ordered by the Judge, can be done before any vicar subject to the rider given in the directions. 7. In this original petition the scope is limited as it is only supervisory in nature. After going through the direction of the court below, it can be seen that the first two receivers surrendered their warrants and thereon Adv.Sri.A.Balagopal, a senior lawyer, was appointed. Even though the word Commissioner is used therein, as per the direction of the court, it can be seen that receiver is appointed. Under such circumstances, when receiver is appointed to conduct the election, the argument of the senior counsel on that aspect will not be having much force. **OP(C).No. 1738 of 2018** **11** 8. The next point is regarding confession. As per the submissions, the lady parishioners have some reservations to make confession under the vicar of the church. It is to be remembered that it is a church which will come under 1934 constitution and the priest therein is also appointed in accordance with the said constitution. 9. When the Hon'ble Supreme Court upheld the constitution and the reservations of lady parishioners are also taken into consideration by the court below, there is nothing to be interfered with. Thus, considering the totality of the case, it can be seen that the court below bestowed its attention to the decision of the Hon'ble Apex Court while giving directions. Under such circumstances, there is nothing to interfere under Article 227 of the Constitution of India in this matter. There is no merit in the original petition. Accordingly, the original petition is dismissed. ## **Sd/-** ## **K.P.JYOTHINDRANATH** shg/sv. ## **JUDGE** PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 5.7.2018 IN OS 42/2003 OF THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE PLAINT IN ORIGINAL SUIT NO.42 OF 2003 **OP(C).No. 1738 of 2018** **12** |EXHIBIT P3|TRUE COPY OF THE JUDGMENT DATED 13TH OCTOBER, 2005 IN| |---|---| ||WP(C)NO.3497 OF 2005 OF THIS HONOURABLE COURT| |EXHIBIT P4|TRUE COPY OF JUDGMENT DATED 21.11.2018 IN WP(C) NO.3720 OF 2006| |EXHIBIT P5|TRUE COPY OF THE ORDER BY APEX COURT IN CA NO.8478 OF 2012 DATED| ||18.7.2017| |EXHIBIT P6|TRUE COPY OF THE DECREE IN O.S.NO.35 OF 2000 OF THE FIRST| ||ADDITIONAL DISTRICT COURT, ERNAKULAM| |EXHIBIT P7|TRUE COPY OF THE REPRESENTATION TO COMMISSIONER BY THE| ||TRUSTEES, DEFENDANTS 2 AND 3 DATED 3RD JUNE, 2018| |EXHIBIT P8|COPY OF THE POSTING DATE BY FIRST ADDITIONAL DISTRICT COURT,| ||ERNAKULAM DATED 4TH OF JUNE, 2018 IN O.S.NO.42 OF 2003| ||DOWNLOADED FROM E-COURT WEBSITE.| |EXHIBIT P9|TRUE COPY ORDER DATED 12TH JULY, 2017, IN CMP 137/17 BY GRAMA| ||NYAYALAYA VADVUKOD, KOLENCHERRY| |EXHIBIT P10|TRUE COPY OF ORDER DATED 27.3.2018 IN CRL.M.C.6715 OF 2017 OF THIS| ||HONOURABLE COURT| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED 19TH FEBRUARY, 2018 IN| ||CRL.M.C.NO.1000 OF 2018 OF THIS HONOURABLE COURT|