OP(C) No.198 of 2013 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** # **FRIDAY, THE 18TH DAY OF JANUARY 2013/28TH POUSHA 1934** ## **OP(C).No. 198 of 2013 (O)** ## **------------------------I.A.NO. 1773/2012 IN O.S. NO. 33/2009 OF IST ADDITIONAL DISTRICT COURT, ERNAKULAM** **----------------** ## **PETITIONER(S):** - **------------------------** **1. K.V. PAUL S/O. VARKEY, KOZHIKKOTTUTHARAYIL HOUSE, NECHOOR KARA MANEED VILLAGE, MUVATTUPUZHA TALUK.** **2. K..C.JOY S/O. CHACKO, KAYYALAPARAMBIL HOUSE, NECHUR KARA MANEED VILLAGE, MUVATTUPUZHA TALUK.** - **BY SENIOR ADVOCATE SRI.S.SREEKUMAR BY ADVS. SRI.K.PAUL KURIAKOSE** ## **RESPONDENT(S):** - **----------------------------** **1. K.P. JOY** - **S/O. PAILY, KURUMBALAKKAT HOUSE NECHUR KARA, MANEED VILLAGE, MUVATTUPUZHA TALUK,** - **PIN - 686 726.** ## **2. FR. P.M.KURIAKOSE** - **MOOLAMATTATHIL HOUSE, PRIEST, ST.THOMAS CHURCH NECHUR, RESIDING AT MOOLAMATTATHIL HOUSE, NECHUR KARA MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN -686 726.** **3. SIMON T. GEORGE S/O. GEORGE, KILIMANGALAM HOUSE, NECHUR KARA MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN 686 726.** **4. T.K.JOY S/O. KURIAN,THADATHIL PARAMBIL HOUSE, NECHUR KARA MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN -686 726.** **5. N.V.KURIAKOSE S/O. PAULOSE, NADUVILEDATHU PUTHENPURAYIL EZHAKKARANADU, MANEED VILLAGE, PIN -686 726.** **...2/-** **OP(C).No. 198 of 2013 (O) -2-** ## **6. SOJAN P.ABRAHAM** - **S/O. ABRAHAM, PUNCHALAYIL, PAZHOOR P.O. KAROOR KARA, MANEED VILLAGE, PIN 686 726.** ## **7. RAJU JOHN** **S/O. JOHN,NADUVILEDATHU PUTHENPURAYIL (VETTIKUZHIYIL HOUSE), EZHAKARANADU, MANEED VILLAGE, PIN -686 726.** **R1, R2, R4, R6 & R7 BY SENIOR ADVOCATE SRI.N.SUKUMARAN BY ADVS. SRI.S.SHYAM** **SRI.BOBBY MATHEW KOOTHATTUKULAM** **R3 & R5 BY SENIOR ADVOCATE SRI.K.RAMAKUMAR BY ADVS. SRI.S.M.PRASANTH SMT.SMITHA GEORGE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **OP(C).No. 198 of 2013 (O)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **EXT. P1 : PHOTOSTAT OF MINUTES OF THE MEETING DTD. 3.12.2009. EXT. P2 : PHOTOSTAT COPY OF ORDER DTD. 23.1.2010 IN IA NO.265/2010 IN OS NO.33/2009. EXT. P3 : PHOTOSTAT COPY OF ORDER DTD. 11.2.2011 IN IA NO.680/2011 IN OS NO.33/2009. EXT. P4 : PHOTOSTAT COPY OF ORDER DTD.28.1.2012 IN IA NO.323/2012 IN OS NO.33/2009. EXT. P5 : PHOTOSTAT COPY OF ORDER DTD.13.4.2012 IN IA NO.1773/2012 IN OS NO.33/2009. EXT. P6 : PHOTOSTAT COPY OF NOTICE DTD. 12.1.2013 REGARDING THE CONDUCT OF THE FESTIVAL AND THE PROGRAMME. EXT. P7 : PHOTOSTAT COPY OF COMPLAINT DTD. 7.1.2013 TO THE CIRCLE INSPECTOR OF POLICE, PIRAVOM.** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **THOMAS P.JOSEPH, J.** ## **==================================== O.P(C) No.198 of 2013 ==================================== Dated this the 18[th] day of January, 2013** ## **J U D G M E N T** The dispute concerns conduct of annual festival of St. Thomas, the most loved disciple of Jesus Christ in the St. Thomas Church, Nechur which the orthodox and Jacobite factions claim to be theirs. In the year, 1977 some of the Parishioners of that church owing allegiance to the orthodox faction brought a suit as O.S. No. 32 of 1977 where a decree declaring that the 1934 Constitution relied on by the orthodox faction was to be followed was granted. But the prayer for prohibitory injunction was disallowed in view of the decision in **Most Rev. P.M.A.** ## **Metropolitan v. Moran Mar Marthoma** (AIR 1995 SC 2001). The plaintiffs in that suit challenged the decree to the extent it disallowed prohibitory injunction, in A.S.No.844 of 1998 while the defendants in that suit preferred a cross objection against grant of declaration. This Court disposed of the appeal and cross objection on 14.10.2009 whereby the suit was dismissed for not obtaining leave under Section 92 of the Code of Civil Procedure (for short, “the Code”). Later, some of the parishioners of that Church owing allegiance to the orthodox faction brought O.S. No. 33 of 2009 in the First Additional District Court, Ernakulam (for short 'the Church Court'). In that suit, from ## **O.P(C) No.198 of 2013** ## -: 2 :- time to time the court was passing interim orders concerning conduct of festival, etc., in the church (See Exts.P2 to P4, orders for the year, 2010, 2011 and 2012). A similar order was passed with respect to two chapels coming under the said church as per Ext. P5, dated 13.04.2012. Vide Exts. P2 to P5, time schedule was fixed by the court so that both factions could conduct either the Holy Mass or festival without friction. In Ext. P5, order dated 13.04.2012 the Church Court observed in paragraph 4, “it is made clear that hereafter no such interim orders will be granted and the parties should be ready for trial of the case.” 2. On 15.01.2013, the petitioners (plaintiffs in O.S. No. 33 of 2009) owing allegiance to the orthodox faction preferred this Original Petition under Article 227 of the Constitution requesting this Court to quash Ext.P5, order to the extent it made the above observation and seeking for permission to conduct the annual festival from 20.01.2013 to 23.01.2013 as permitted during the previous years.. 3. Learned senior Advocate for the petitioners contended that from time immemorial, it was the orthodox faction which was conducting the Holy Mass, festivals, etc., in the Church and the Chapels under it, and in accordance with that practice, the Vicar of the church ## **O.P(C) No.198 of 2013** ## -: 3 :- has issued Ext.P6, notice dated 12.01.2013 for conduct of festival from 20[th] to 23[rd] of January, 2013. Since there is possibility of the Jacobite Faction interfering with the smooth conduct of the festival, assistance of the police also required and, an order to the local police to that effect also is prayed for by way of interim relief. My attention is also drawn to Ext.P1, the decisions arrived at, in a meeting of the two factions on 08.12.2009 in the presence of the Revenue Divisional Officer which permitted both factions to conduct festivals, etc. in the Church. 4. Learned senior Advocate for respondents 3 and 5 argued that this Court may not exercise the supervisory jurisdiction under Article 227 of the Constitution with respect to the observation made in Ext. P5, order on 13.04.2012 in a writ petition filed after much delay, without any explanation on 15.01.2013 after announcing conduct of the festival. It is contended in the counter affidavit of respondents 3 and 5 that the Vicar who issued Ext.P6 notice dated 12.01.2013 had announced in public that whatever be the order of the court, the orthodox faction would conduct the festival (as now scheduled in Ext.P6). Apprehending that possibility, the Jacobite faction preferred Ext.P7, complaint to the local police on 07.01.2013. It is contended that attempt of the petitioners is to legalize their illegal act by obtaining an order from this Court. 5. Learned senior Advocate for respondents 1 to 4, 6 and 7 ## **O.P(C) No.198 of 2013** ## -: 4 :- also raised similar contentions. It is argued that there is no justification in the petitioners delaying filing of the writ petition after Ext. P5, order. It is further contended that even in O.S. No. 32 of 1977, right of the second respondent (who claims to be the Vicar of the church, belonging to the Jacobite faction) has been recognized and not interfered with in A.S. No. 844 of 1998. My attention is also drawn to the observations made by this Court in the order on an interlocutory application preferred after disposal of A.S. No. 844 of 1998 which according to the learned senior Advocate precluded the petitioners from claiming interim relief in the suit of the nature sought for in this Original Petition. It is also argued that the suit itself is not maintainable for want of leave under Section 92 of the Code. 6. Though rival contentions are raised concerning entitlement of the two factions to conduct festivals, etc. in the church, it is not necessary for me to go into those questions. The contention raised by the respondents that the suit is filed without obtaining leave under section 92 of the Code is also a matter which the Church Court has to decide. Now , I am only at the question whether it is necessary to grant the reliefs prayed for in this Original Petition. 7. So far as Exts.P2 to P4 are concerned, it is seen from Ext.P2 order dated 23.01.2010 (which regulated conduct of festival from 24.01.2010 to 27.02.2010) that the said order was made on an agreement between the parties as revealed from paragraph 4 of the ## **O.P(C) No.198 of 2013** ## -: 5 :- said order. Ext.P3, order dated 11.12.2012 in connection with the festival for the period from 13.02.2011 to 16.02.2011 and Ext.P4, order dated 28.01.2012 concerning conduct of festival for the period from 29.01.2012 to 01.02.2012 are all made in view of Ext.P2 order which I said, was the result of consensus. Now such consensus eludes the parties. They are not able to come to any agreement. 8. Then comes Ext. P5, order dated 13.04.2012 . There, the festival was to be held on the 22[nd] and 23[rd] of April and May, 2012 in two chapels. In paragraph 4, learned Judge specifically observed: “hereafter no such interim orders will be granted and parties should be ready for trial of the case”. 9. Of course, learned senior Advocate for the petitioners have an explanation that since in connection with the challenge to the grant of leave under Section 92 of the Code in O.S.No. 13 of 2010 of the Church Court which is under challenge in W.P.(C) No.20008 of 2010, records in O.S. No. 33 of 2009 were also called for to this Court and hence the Church Court could not dispose of O.S. No. 33 of 2009. Assuming so, I must bear in mind that the impugned observation in Ext.P5, order was made on 13.04.201. The petitioners were not unaware of the said observation which stood in the way of their claiming permission for the period after April 2012. Petitioners did not ## **O.P(C) No.198 of 2013** ## -: 6 :- challenge the impugned observation in Ext.P5, order within a reasonable time. There is no satisfactory explanation for the delay. 10. It is the case of petitioners that their faction has announced the festival to be held from 20.01.2013 to 23.01.2013 as disclosed by Ext. P6, dated 12.01.2013. It is seen from Ext.P7, produced by the petitioners that on 07.01.2013 the Jacobite faction had preferred a complaint to the local police about the (alleged) high handedness of the Vicar mentioned in Ext.P6 declaring in the public that whatever be the order of the court (reference must be to the impugned observation in Ext.P5, order extracted above), they would conduct the festival (in January, 2013). Ext.P6, notice was issued only after Ext.P7, complaint. Whether the allegations in Ext.P7, complaint are correct or not is a matter which the Church Court has to decide if it arises for a decision. That, Ext.P7 complaint was preferred to the police on 07.01.2013 is not very much in dispute. 11. If various reports can be believed, faction fued between the two groups have gone into the street even affecting public tranquility and peace. Petitioners who were aware of the impugned observation in Ext.P5, order dated 13.04.2012 without challenging that observation within a reasonable time or seeking permission of this Court for conduct of festival from 20[th] to 23[rd] of January, 2013 when the two factions are fighting each other, decided to conduct of the festival (fully knowing that the Church Court will not grant any interim order), ## **O.P(C) No.198 of 2013** ## -: 7 :- issued Ext.P6, notice on 12.01.2013 announcing conduct of the festival and then filed this Original Petition on 15.01.2013 challenging the impugned observation in Ext.P5, order dated 13.04.2013 and seeking permission. I am not inclined to think that in the above circumstances petitioners are eligible to get any order from this Court as prayed for, so far as conduct of festival from the 20[th] to 23[rd] of this month is concerned. Delay and conduct of petitioners disentitle them to get any such order. 12. It is not clear when the suit is going to be disposed of. There is no reason why, so far as festivals etc., in future are concerned, in case the suit is not disposed of within that time, petitioners should not be allowed to approach the Church Court seeking appropriate orders in the matter of conduct of festivals, etc. Hence it is made clear that the observation in paragraph 4 of Ext. P5 order that, ## “hereafter no such interim orders will be granted” or, refusal of this Court to grant reliefs vide this judgment would not stand in the way of petitioners approaching the Church Court in future, within a reasonable time seeking appropriate orders with respect to the conduct of festivals, etc., in the St.Thomas church or the chapels under it. But, I make it clear that I have not expressed any opinion whether such requests should be granted or not and that the said question has ## **O.P(C) No.198 of 2013** ## -: 8 :- to be decided by the Church Court after hearing the parties concerned. 13. Though learned senior Advocates for the respondents have drawn my attention to the observations made by this Court in the order on an interlocutory application filed after disposal of A.S. No. 844 of 1998, I am inclined to think that the said observation will not preclude the right of petitioners to file appropriate applications so far as conduct of future festivities, etc., are concerned, for, those observations were made with respect to a request made in an application filed after disposal of A.S. No. 844 of 1998. The Original Petition is disposed of with the above directions and observations. **THOMAS P. JOSEPH, JUDGE.** ds