OP(C).No.1406 OF 2020

**OP(C).No.1406 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **OP(C).No.1406 OF 2020** **AGAINST THE ORDER IN OS 15/2016 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, MUVATTUPUZHA** ## **PETITIONERS/ADDITIONAL 3D7 & D8:** **M.Y.BABY AGED 64 YEARS** **S/O.YOHANNAN AND RESIDING AT MADATHIKUDIYIL HOUSE,** - **1 PUTHANICADU KARA, PUTHANICADU VILLAGE, PRESENT TRUSTEE ST.JOHNS BESHPAGE JACOBITE SYRIAN CHURCH PULINTHANAM, ERNAKULAM DISTRICT.** **KURIAN VARGHESE** - **S/O.VARGHSE, RESIDING AT MADATHODATHIL HOUSE, PULINTHANAM** - **2 P.O., ENANALLOOR, PRESENT TRUSTEE ST.JOHNS BESPHAGE JACOBITE SYRIAN CHURCH, PULINTHANAM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SHRI.P.V.ELIAS SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SHRI.G.RENJITH** **OP(C).No.1406 OF 2020** **2** ## **RESPONDENT/S:** ## **M.S.PAULOSE** **S/O.SAMUEL AND RESIDING AT MADATHIKUDIYIL HOUSE,** - **1 ENANALLOOR VILLAGE, KALAMPOOR KARA, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **K.C.IYPE** - **S/O.CHACKO, AND RESIDING AT KAKKANATTUPARAMBIL (KAVUMARIYIL) HOUSE, PARAMBANCHERY ENANALLOOR VILLAGE** - **2 KALAMPOOR KARA, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **K.I.JOSE** **S/O.VARKEY ITTAN, RESIDING AT KAKKANATTUPARAMBIL HOUSE,** - **3 PARAMBANCHERY, ENANALLOOR VILLAGE, KALAMPOOR KARA, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **K.A.MATHEWS** - **S/O.ABRAHAM K.V., RESIDING AT KAKKANATTUPARAMBIL HOUSE, THEONIVAS, PAZHAMTHOTTAM KARA, IKKARANAD NORTH VILLAGE,** - **4 KUNNATHUNAD REPRESENTED BY THE POWER OF ATTORNEY HOLDER SAJI PAUL, S/O.PAULOSE, RESIDING AT PUTHENPURAYIL HOUSE, ENANALLOOR VILLAGE, ERNAKULAM DISTRICT, PIN -686 673.** **ST.JOHNS BESFAGE ORTHODOX SYRIAN CHURCH PULINTHANAM PULINTHANAM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, REPRESENTED BY REV.FR.C.K.ISSAC COREPISCOPA,** - **5 S/O.KURIAKOSE AND RESIDING AT CHENAYAPPILLIL HOUSE, PARAMBANCHERY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686 673, ERNAKULAM DISTRICT.** - **6 VICAR REV.FR.C.K.ISSAC COREPISCOPA** **S/O.KURIAKOSE AND RESIDING AT CHENAYAPPILLIL HOUSE, PARAMBANCHERY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PIN - 686 673, ERNAKULAM DISTRICT.** **OP(C).No.1406 OF 2020** **3** ## **REV.FR.P.V.PHILIP** - **AGED 63 YEARS, S/O.POTHAN AND RESIDING AT ARIMPANCHIRAYIL HOUSE, PULINTHANAM KARA, CHATHAMATTAM KARA, ENANALLOOR** - **7 VILLAGE , MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **REV.FR.JOSE MATHEW** - **S/O.MATHEW AND RESIDING AT THACHETHUKUDIYIL HOUSE,** - **8 THANGALAM KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **MR.MATHEW JOHN** **S/O.JOHN, AND RESIDING AT VELLAKKATTEL (THEKKEKUDIYIL)** - **9 HOUSE, PULINTHANAM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673.** ## **FR.T.V.THAMPI** **RESIDING AT THEKKEKUDIYIL HOUSE, SOUTH MARADY VILLAGE,** - **10 PRESENT VICAR ST.JOHNS BESPHAGE JACOBITE SYRIAN CHURCH, PULINTHANAM, ERNAKULAM, PIN - 686 673.** ## **KURIAN C.ISSAC** **S/O.FR.C.K.ISSAC COREPISCOPA, CHENAYAPPILLIL HOUSE,** - **11 PARAMBANCHERY KARA, ENANALLOOR VILLAGE, ERNAKULAM DISTRICT, PIN - 686 673.** ## **THOMAS C.ISSAC** **S/O.FR.C.K.ISSAC COREPISCOPA, CHENAYAPPILLIL HOUSE,** - **12 PARAMBANCHERY KARA, ENANALLOOR VILLAGE, ERNAKULAM DISTRICT, PIN - 686 673.** ## **MEEKHAYEL RAMBAN** **S/O.LATE GEORGE, PULIMOOTTIL HOUSE, KUTHUKUZHYKARA,** **13 KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT, PIN - 686 673.** **4** ## **OP(C).No.1406 OF 2020** **V.P.JOHNY** **S/O.PAILY, KODEKKAPARAMBIL HOUSE, PULINTHANAM KARA,** **14 ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686673.** **R1-7, R11-12 By Sr.Adv.SRI.S.SREEKUMAR R1-7, R11-12 BY ADV. SRI.ROSHEN.D.ALEXANDER R1-7, R11-12 BY ADV. SMT.TINA ALEX THOMAS R1-7, R11-12 BY ADV. SHRI.HARIMOHAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.1406 OF 2020** **5** ## **JUDGMENT** ## **Dated this the 18th day of March 2021** The original petition is filed under Article 227 of the Constitution of India, to set aside Ext.P3 order dated 4.8.2020 passed in O.S 15/2016 by the Court of the Subordinate Judge, Muvattupuzha (Trial Court). 2. The facts, in brief, in the original petition are: the petitioners are the additional defendants 7 and 8 in Ext.P1 plaint filed by the respondents 1 to 5 and two others. Ext.P1 is filed, inter alia, to declare that St.John's Besphage Jacobite Syrian Church, Pulinthanam is a constituent parish church of the Malankara Orthodox Syrian Church and only the members who accept the 1934 Constitution are entitled to be parishioners of the church. The petitioners had filed Ext.P2 written statement refuting the allegations in plaint. The Trial Court without following the procedure prescribed for **OP(C).No.1406 OF 2020** **6** trying a suit under the Code of Civil Procedure,1908 (in short 'Code'), and in violation of the mandate under Order XIV of the Code, strangely proceeded to consider the question whether the suit is covered by the decision of the Hon'ble Supreme Court in **K.S.Varghese & Ors v. St.Peter's & Paul's Syrian Orthodox Church and Others** [2017) 3 KLT 261 (SC)] ( in short ‘K.S.Varghese’). The Trial Court by Ext.P3 order entered a finding that the suit is covered by **K.S Varghese,** which is ex facie illegal and against the settled procedure established under the Code. The petitioners are put to manifest injustice and prejudice and are robbed of a fair trial. Therefore, Ext.P3 order be set aside. 3. Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the petitioners and Sri.S.Sreekumar, the learned Senior Counsel appearing for the respondents 1 to 7, 11 and 12. **OP(C).No.1406 OF 2020** **7** 4. Sri.K.Ramakumar contended that the Trial Court has passed Ext.P3 order in flagrant violation of the provisions of the Code and a host of judicial precedents on the point, that too without a foundation in the pleading or after framing an issue. Surprisingly, the Trial Court after passing Ext.P3, has formulated issues touching on matters covered by Ext.P3. Therefore, the petitioners are precluded from letting in evidence. The Trial Court, if it wanted to adopt such a course, ought to have framed a preliminary issue and then decided whether the suit is covered by **K.S Varghese** and, thereafter, proceeded to try the other issues in the suit. Instead, the Trial Court has passed Ext.P.3 order ― which ― is neither a decree nor an appealable order compelling the petitioners to file the original petition. Ext.P3 is manifestly erroneous and is liable to be set aside. **OP(C).No.1406 OF 2020** **8** 5. Sri.S.Sreekumar, on the contrary, argued that Ext.P3 order was passed in light of the directions of the Hon'ble Supreme Court in Ext.P4 order, directing all Trial Courts before whom cases relating to Malankara Church are pending, to examine whether the pending cases are covered by **K.S Varghese.** In case the court felt that the case is covered by **K.S.Varghese,** the court was obliged to decide the said question before proceeding with other issues. It was in the above given circumstances that the Trial Court decided the question whether Ext.P1 was covered by **K.S Varghese** . Even though, technically, the Trial Court had not framed a preliminary issue, the Trial Court has decided that the suit is covered by **K.S.Varghese,** by Ext.P3, which cannot be found fault with. Both parties had participated in the hearing and Exts.A1 to A74 were marked on the side of the respondents. Hence, it is too late in the day for the **OP(C).No.1406 OF 2020** **9** petitioners to now contend that Ext.P3 is erroneous and passed in deviation of the established procedure laid down under the Code. The learned Senior Counsel placed reliance on the decisions of the Hon'ble Supreme Court in **Fr.Issac Mattammel Cor Episcopa v. St. Mary's Orthodox Syrian Church** [2019 (4) KLT 1 (SC)] and **Mathews Mar Koorilos v. Pappy** [2018 (3) KLT 990 (SC)] and contended that the decision in **K.S.Varghese** case has been held to be correct law in the later decisions. **K.S Varghese** is also in consonance with the earlier decisions in **Moran Baselious Catholicos v. T.P.Avira & Others** [1958 KLT 721 (SC)] and **Most.Rev. P.M.A Metropolitan & Others v. Moran Mar Marthoma & Another** [1995 Suppl. (4) SCC 286]. He submitted that the Hon'ble Supreme Court by order dated 27.10.2020 in Civil Appeal Nos.7115-7116/2019 had called for a report from this Court to monitor the **OP(C).No.1406 OF 2020** **10** compliance of Ext.P4 order and to ensure the early disposal of all the suits and other proceedings. The contention that no issues were framed is misleading and incorrect because the Trial Court had formulated issues (i) to (ix) on 25.8.2020 and additional issues (i) to (iii) on 11.1.2021. The Trial Court has proceeded with the trial of the suit, which stands posted for further evidence on 8.4.2021. Hence, Ext.P3 impugned order is in accordance with law and is not liable to be interfered with. 6. The question that emanates for consideration in this original petition is whether Ext.P3 order precludes the petitioners from letting in evidence on all matters on the issues that have been formulated. 7. The respondents 1 to 5 and two others/plaintiffs have sought the following reliefs in Ext.P1 plaint, which reads thus: **OP(C).No.1406 OF 2020** **11** “a. Declaring that St.John's Besphage Orthodox Syrian Church Pulinthanam is a constituent parish church of the Malankara Orthodox Syrian Church and declaring that the plaint scheduled church, is to be administered in accordance with the provisions of 1934 constitution of the Malankara Orthodox Syrian Church. b. Declaring that only members who accept 1934 constitution are entitled to be a parish member of the 1[st] defendant's church and those who comply with Article 4 and 8 and confess before the 2[nd] respondent Vicar or his successor appointed by the Diocesan Metropolitan of Angamaly Diocese under 1934 Constitution alone are entitled to participate in the parish assembly of 1[st] defendant church; c. Direct the respondents 4, 5 and 6 to render the accounts of the 1[st] defendants church; d. Remove the defendant 4 from the post of Vicar and defendants 5 and 6 from the post of trustees of the 1[st] defendant church; e. Issue a decree of permanent prohibitory injunction restraining the defendants 4, 5 and 6 and their men or agents or anybody claiming under them from cauysing any obstruction to the 2[nd] and 3[rd] defendants or their successors appointed under 1934 Constitution by the Diocesan Metropolitan from disparaging the functions and **OP(C).No.1406 OF 2020** **12** duties as Vicar and Co-Priest respectively of the 1[st] defendant Church and the office building, parish hall, Sunday school building, parsonage, 4 kurisadies, Peedika building, purayidam its building and Cemetery described in the plaint schedule property and other institutions in the plaint schedule. f. Issue a decree of a permanent prohibitory injunction restraining the defendants 4, 5 and 6, and their men or agents or anybody claiming under them from causing any obstruction to the office bearers elected according to the provisions of 1934 Constitution, to assume their office and carry on their duties in the 1[st] defendant Church and all the institutions related to it, g. Issue a decree of permanent prohibitory injunction restrainiing defendants 4, 5 and 6 and their men or agents or anybody claiming under them from bringing any Prelates/Vicar/Priests/Deacons not appointed under 1934 Constitution for conducting religious services in the 1[st] defendant church, the office building, parish hall, Sunday school building Parsonage, 4 Kurisadies, Peedika building, Purayidam its building and Cemetery described in plaint schedule property and causing obstruction to 2[nd] and 3[rd] defendants or to his successors appointed by Diocesan Metropolitan and steward (lay trustee), Managing Committee elected in accordance with the 1934 Constitution from taking income from plaint schedule properties and **OP(C).No.1406 OF 2020** **13** exercise funds according to the rules of 1934 constitution; h. Granting such other relief which are deemed fit and proper in the interest of justice and which may prayed for hereafter.” 8. Ext.P4 order passed by the Honourable Supreme Court on 14.2.2020 in M.A Nos.2554-2555 of 2019 in Civil Appeal Nos.7115-7116 of 2019 reads as follows: **“It is stated at the Bar that 304 civil suits filed by the parties are pending. We direct the trial court concerned, where the cases are pending, to examine each and every case within three months, whether the case is covered by the decision of this Court in K.S.Varghese & Ors v. St.Peter's & Paul's Syrian Orth. & Ors [(2017) 15 SCC 333]. In case they are covered, let the court decide the cases forthwith in the light of the decision of this Court** . The trial court shall sent a report to this Court whether they have complied with the directions issued by this Court or not. It is also stated at the Bar that some matters are pending in the High Court. We request the High Court also to examine the matters similarly and send a report to this Court. Let the Registrar of the High Court inform the courts of this order and sent compliance report. List after three months.” **OP(C).No.1406 OF 2020** **14** ## 9. The operative portion of Ext.P-3 reads as ## follows:- “24. The Hon'ble Supreme Court has held that the decision rendered by the court in PMA Metropolitan case is in a representative suit and the said decision is binding on all concerned. Thus, it is clear that all the matters settled by the Hon'ble Supreme Court in PMA Metroplitan case and in **K.S.Varghese case** cannot be re-opened or further adjudicated. In the present case the first relief sought for by the plaintiff is a declaration to the effect that the 1[st] defendant church is to be administered in accordance with the provisions of 1934 constitution . The second relief is a declaration to the effect that the vicars who is appointed by the Diocesan Metropolitan of Ankamaly Diocese under the 1934 Constitution alone are entitled to participate in the parish assembly oif the church. The other reliefs claimed are consequential or rather ancilary to the first relief which has to be decided on the basis of evidence. So far as the first two declaratory reliefs are concerned, the Hon'ble Supreme Court has made a finality. Therefore, those aspects are to be decided on the basis of the said judgment alone. **Thus, I have no hesitation to hold that this is a case covered by the decision of the Hon'ble Supreme Court in K.S.Varghese case.** **OP(C).No.1406 OF 2020** **15** 25. **As per the direction of the Hon'ble Supreme Court this case has to be disposed of expeditiously. The case stand adjourned for framing issues. Parties shall take necessary pre-trial steps in advance so as to include the case in the special list on a nearest possible day.”** 10. Ext.P4 order passed by the Hon'ble Supreme Court has two parts. The first part is directing the Trial Court to examine each and every case (i) whether the case is covered by the decision in **K.S.Varghese** and (ii) in case it is covered, the Trial Court is to decide the case forthwith, in light of the decision in . **K.S.Varghese** 11. A careful reading of Ext.P3 order passed by the Trial Court would reveal that the Trial Court has complied with the first part of Ext.P4 order by holding that the case is covered by **K.S.Varghese** . Nevertheless, the Trial Court did not formulate a **OP(C).No.1406 OF 2020** **16** preliminary issue on the said point or dispose the suit on the preliminary issue. Instead, the Trial Court after passing Ext.P3 formulated the following issues. (i) Is the 1st defendant church is a constituent parish charch of Malankara Orthodox Syrian Church? (ii) Is the 1st defendant church to be administered as per 1934 constitution of the church? (iii) Whether the defendants 4 to 6 caused any obstruction for the office bearers of the church who were elected as per 1934 constitution in discharging their duties? (iv) Whether defendants 4 to 6 indulged in any acitivities which are against the provision in the 1934 Constitution? (v) Whether the plaintiffs are entitled for declaration as prayed for? (vi) Whether the defendants 4 to 6 are liable to rnder accounts of the 1st defendant church? (vii) Whether the 4th defendant acting as vicar and defendants 5 and 6 acting as trustees are liable to be removed from their respective posts? (viii) Whether the plaintiffs are entitled for permanent **OP(C).No.1406 OF 2020** **17** prohibitory injunction as prayed for? (ix) What is the order as to costs? ## Additional issues (i) Whether the jurisdiction of this court is ousted by virtue of the provision in the Travancore – Cochin Literary Scientific and Charitable Society Registration Act? (ii) Is the bad non-jointer of necessary party? (iii) Whether the settlement deed no.806/2019 at Pothanicadu SRO and lease agreement No.1451/2019 of Pothanicadu SRO are to be declared as null and void? ## 12. Order XIV Rules 1 and 2 of the Code of Civil ## Procedure reads thus: 1. **Framing of Issues:-** (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct **OP(C).No.1406 OF 2020** **18** issue. (4) Issues are of two kinds. (a) Issues of fact, - (b) Issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. [2. **Court to pronounce judgment on all issues:-** (1) **Notwithstanding that a case may be disposed of on a preliminary issues, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.** **(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -** **(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force,** **OP(C).No.1406 OF 2020** **19** **and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that point]. (emphasis given)** 13. Sub-rule (2) of Rule 2 of Order XIV of the Code (extracted supra) permits the Court to dispose a case or any part there of falling under clauses (a) and (b) on a preliminary issue. The Court is permitted to keep aside other issues until the preliminary issue is decided. 14. In the present case, the Trial Court even though it ventured to decide whether the case was covered by **K.S.Varghese,** as directed in the first part of Ext.P4, did not formulate a preliminary issue as per the mandate under sub-rule (2) of Rule 2 of Order XIV of the Code or dispose the case on the preliminary issue. Alternatively, the Trial Court formulated issues (i) to (xii) (extracted above). Both sides have not objected to **20** ## **OP(C).No.1406 OF 2020** the issues formulated by the Trial Court. There is no semblance of doubt that issues (i) and (ii) are formulated to determine reliefs (a) and (b) in Ext.P1 plaint. Therefore, it is only to be inferred that the Trial Court even though by Ext.P3 found that the case is covered by **K.S.Varghese,** thought it fit to decide the case as a whole by determining issues (i) to (xii) together. 15. In light of the discussions above, I am of the definite opinion that Ext.P3 order will not bar the petitioners from letting in evidence to enable the Trial Court to decide issues (i) to (xii), which the Trial Court has by itself formulated even after passing Ext.P3 order and is, therefore, obliged to determine all the issues framed. **21** **OP(C).No.1406 OF 2020** In the result, original petition is disposed of by holding that Ext.P3 order will not stand in the way of the the petitioners letting in evidence to enable the Trial Court to decide on issues (i) to (xii) formulated in the suit. ma/22.3.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/** **OP(C).No.1406 OF 2020** **22** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT TRUE COPY OF PLAINT IN O.S.NO.15 OF 2016 ON THE FILE P1 OF THE SUBORDINATE JUDGE'S COURT, MUVATTUPUZHA. TRUE COPY OF WRITTEN STATEMENT FILED BY THE EXHIBIT PETITIONERS HEREIN IN O.S.NO.15 OF 2016 ON THE FILE P2 OF THE SUBORDINATE JUDGE'S COURT, MUVATTUPUZHA ON 25/01/2017. TRUE COPY OF ORDER DT. 04/08/2020 IN O.S.NO.15 OF EXHIBIT 2016 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, P3 MUVATTUPUZHA. TRUE COPY OF ORDER DATED 14/02/2020 IN MISCELLANEOUS EXHIBIT APPLICANT NOS. 2554 AND 2555 OF 2019 IN CIVIL APPEAL P4 NO.7115-7116 OF 2019 OF THE HON'BLE SUPREME COURT.**