OP(C).Nos.2567 of 2018 and OP(C).Nos.3163 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** ## **OP(C).No.2567 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 106/2015 DATED 05-09-2018 OF ADDITIONAL SUB COURT, KOTTAYAM** ## **PETITIONERS/DEFENDANTS 1 AND 2:** - **1 THE METROPOLITAN ARCH BISHOP THE ARCHEPARCHY OF KOTTAYAM, CATHOLIC METROPOLITAN HOUSE, KOTTAYAM, KERALA-686 001.** - **2 THE ARCHEPARCHY OF KOTTAYAM, CATHOLIC METROPOLITAN HOUSE, P.B. NO. 71, KOTTAYAM, KERALA 686001 REPRESENTED BY THE METROPOLITAN ARCH BISHOP** ## **BY ADV. SRI.JACOB E SIMON** ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3 TO 6:** - **1 KNANAYA CATHOLIC NAVEEKARANA SAMITHY VAITHARA BUILDING (NEAR VILLAGE OFFICE), KUMARAKOM.P.O., KOTTAYAM-686 563, REPRESENTED BY T.O.JOSEPH.** - **2 T.O. JOSEPH, AGED 70 , S/O. OUSEPH, THOTTUMKAL HOUSE, KANNAMKARA P.O., THANNERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT 688527** - **3 LUKOSE MATHEW K., AGED 65, S/O. MATHEW, KUNNUMPURATH HOUSE, KURICHITHANAM P.O., KURICHITHANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM 686634** - **4 C.K. PUNNEN, AGED 68, S/O. KURUVILLA, CHIRAYIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER V.C. MATHAI, 686562** - **5 THE MAJOR ARCHBISHOP, SYRO MALABAR MAJOR ARCHIEPISCOPAL CHURCH, MOUNT ST. THOMAS, KAKKANAD P.O., P.B. NO. 3110, KOCHI- 682030, THE PRESENT MAJOR ARCHBISHOP IS HIS BEATITUDE MAR GEORGE CARDINAL ALENCHERRY.** O.P(C).Nos.2567 and 3163 of 2018 2 **6 SYNOD OF THE BISHOP OF THE SYRO MALABAR MAJOR ARCHIEPISCOPAL CHURCH, MOUNT ST. THOMAS, KAKKANAND P.O. P.B. NO. 3110, KOCHI- 682030, REPRESENTED BY TIS SECRETARY 7 CONGREGATION FOR THE ORIENTAL CHURCHES VIA DELLA, CONCILIAZIONE 34, 00139 ROMA ITALY REPRESENTED BY ITS PREFECT. 8 CONGREGATION FOR THE DOCTRINE OF FAITH PIZZA DEL S. UFFICOA-LI, 00139 ROMA ITALY REPRESENTED BY ITS PREFECT R1-4 BY ADV. SRI.N.M.MADHU R2-4 BY ADV. SMT.C.S.RAJANI R5 BY ADV. SRI.JOHN VARGHESE** SRI T.KRISHNANUNNI (Sr.) **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2020, ALONG WITH OP(C).3163/2018, THE COURT ON 06.03.2020 DELIVERED THE FOLLOWING:** O.P(C).Nos.2567 and 3163 of 2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** ## **OP(C).No.3163 OF 2018** ## **AGAINST THE ORDER/JUDGMENT IN OS 106/2015 OF ADDITIONAL SUB COURT, KOTTAYAM** ## **PETITIONERS/DEFENDANTS 1 AND 2:** - **1 THE METROPOLITAN ARCH BISHOP THE ARCHEPARCHY OF KOTTAYAM, CATHOLIC METROPOLITAN HOUSE, KOTTAYAM, KERALA - 686 001.** - **2 THE ARCHEPARCHY OF KOTTAYAM CATHOLIC METROPOLITAN HOUSE, P.B.NO.71, KOTTAYAM, KERALA - 686 001, REPRESENTED BY THE METROPLOITAN ARCH BISHOP.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.JACOB E SIMON** ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3 TO 7:** - **1 KNANAYA CATHOLIC NAVEEKARANA SAMITHY VAITHARA BUILDING (NEAR VILLAGE OFFICE) KUMARAKOM P.O., KOTTAYAM - 686 563, REPRESENTED BY T.O.JOSEPH.** - **2 T.O.JOSEPH AGED 70, S/O.OUSEPH, THOTTUMKAL HOUSE, KANNAMKARA P.O., THANNERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688 527.** - **3 LUKOSE MATHEW.K., AGED 65 YEARS S/O.MATHEW, KUNNUMPURATH HOUSE, KURICHITHANAM P.O., KURICHITHANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM, PIN - 686 634.** O.P(C).Nos.2567 and 3163 of 2018 4 - **4 C.K.PUNNEN** **AGED 68, S/O.KURUVILLA, CHIRAYIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER V.C.MATHAI, PIN - 686 562.** - **5 THE MAJOR ARCHBISHOP SYRO MALABAR MAJOR ARCHIEPISCOPAL CHURCH, MOUNT ST.THOMAS, KAKKANAD P.O., P.B.NO.3110, KOCHI - 682 030. THE PRESENT MAJOR ARCHBISHOP IS HIS BEATITUDE MAR GEORGE CARDINAL ALENCHERRY.** - **6 SYNOD OF THE BISHOP OF THE SYRO MALABAR MAJOR ARCHIEPISCOPAL CHURCH** - **MOUNT ST.THOMAS, KAKKANAD P.O., P.B.NO.3110, KOCHI - 682 030, REPRESENTED BY ITS SECRETARY.** - **7 CONGREGATION FOR THE ORIENTAL CHURCHES VIA DELLA CONCILIAZIONE 34 00139 ROMA ITALY REPRESENTED BY ITS PREFECT.** - **8 CONGREGATION FOR THE DOCTRINE OF FAITH PIAZZA DEL S.UFFICOA-LI** - **00139 ROMA ITALY REPRESENTED BY ITS PREFECT.** - **9 KNANAYA CATHOLIC CONGRESS CHAITHANIYA, THELLAKOM P.O., KOTTAYAM, KERALA, PIN - 686 630.** - **REPRESENTED BY ITS PRESIDENT STEPHEN GEORGE.** **R1-4 BY ADV. SRI.N.M.MADHU R1-4 BY ADV. SMT.C.S.RAJANI** **R5 BY ADV. SRI.JOHN VARGHESE** SRI.T.KRISHNANUNNI (Sr.) **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2020, ALONG WITH OP(C).2567/2018, THE COURT ON 06.03.2020 DELIVERED THE FOLLOWING:** O.P(C).Nos.2567 and 3163 of 2018 5 ## **COMMON JUDGMENT** Defendants 1 and 2 in O.S.No.106 of 2015 of the Additional Sub Court, Kottayam are the original petitioners herein. The suit was filed by respondents 1 to 4, interalia, seeking a declaration that by entering into the sacrament of marriage with another Catholic from any Diocese, a member of the Archeparchy of Kottayam will not forfeit his/her membership in Defendant No.2, the Archeparchy of Kottayam and for a consequential prohibitory injunction against defendants 1, 2 and 3, restraining them from terminating the membership of any member of the Archeparchy of Kottayam for marrying a Catholic from any other Diocese. Defendants herein appeared and filed a written statement contending, interalia, that the reliefs sought by the plaintiffs in the suit was not for establishing a civil right under section 9 of the Code of Civil Procedure, subject matter of the suit was not one of civil nature as envisaged under section 9 of CPC. It was contended that the reliefs sought, cause of action and subject matter raised in the suit if granted would interfere with the rights of the defendants to manage their religious affairs. It was also contended that, there was no cause of action and no personal relief was sought by any of the plaintiffs. It was contended that, none of the personal rights of the plaintiffs was infringed and their grievances were only imaginary and reliefs were sought on academic or assumed rights. O.P(C).Nos.2567 and 3163 of 2018 6 2. On the basis of the pleadings, issues were framed by the court below. Maintainability of the suit and the question whether the suit was properly instituted were raised, interalia, as issue Nos.1 and 2. In the meanwhile, defendants 1 and 2 filed I.A.No.1181 of 2018 requesting the Court to hear the question of maintainability of the suit as a preliminary issue. Court below, by order dated 05.09.2018, adjourned the I.A for consideration along with the suit. This is challenged in O.P(C).No.2567 of 2018. 3. While so, defendants 1 and 2 filed I.A.No.1506 of 2018 to hear the preliminary issue, I.A.No.1534 of 2018 to review the order posting I.A.No.1181 of 2018 along with the suit and I.A.No.1553 of 2018 to condone the delay of 7 days in filing the review petition. Court below by a common order posted I.A.No.1506 of 2018 to be considered along with the suit and rejected the application for review. These orders are under challenge in O.P(C).No.3163 of 2018. 4. Heard the learned senior counsel for the original petitioners and the learned counsel for the contesting respondents. 5. Learned senior counsel contended that, in the light of the specific contention set up by the defendants and the issues framed, a specific issue regarding maintainability of the suit arose. It was contended by the learned counsel for the senior counsel that, in the light of specific contention of the contesting defendants that no cause of action was prima facie disclosed from the facts of the case, the contesting defendants were entitled to seek rejection of plaint invoking order VII O.P(C).Nos.2567 and 3163 of 2018 7 Rule 11(a) of the CPC. It was contended that, no personal relief was sought by the plaintiffs. The reliefs sought were only academic in nature and did not confer any right of adjudication. It was also contended that, the suit was hit by Sec 9 CPC, in so far as the question involved related to religious rights and ceremonies and hence the suit was not sustainable. These were the issues which the court below should have considered as preliminary issues and the court below was not justified in adjourning the application to be considered along with the suit. 6. According to the learned senior counsel, the issue was one under Order XIV Rule 2(2)(a) of CPC and as a preliminary issue, it ought to have been considered by the court below. It was contended that, court below instead of exercising the jurisdiction, abdicated exercise of jurisdiction by posting the IA to be considered along with the suit. When the suit was prima facie not sustainable, defendants could not have been dragged to face a trial, it was contended. 7. It is true that the court below did not pass any detailed order as to why the court below thought it proper to try the issue along with the suit. There is no finding of the court below that, it involved a mixed question of fact and law or that the question of jurisdiction and the maintainability of the suit required to be tried and evidence recorded. Ideally, court below should have passed an order on I.A.No.1181 of 2018 disclosing the reasons as to why the I.A was posted along with the suit. Necessarily, this failure should have resulted in directing the court below to consider the IA afresh and to decide whether the question under Order O.P(C).Nos.2567 and 3163 of 2018 8 XIV Rule 2(2)(a) CPC was liable to be heard as a preliminary issue or to post the IA along with the suit. 8. However, learned counsel for the contesting respondents pointed out that, very same relief as in I.A.No.1181 of 2018 was sought by filing I.A.No.1506 of 2018. Court below while answering the contentions set up in I.A.No.1534 of 2018 by the common order had explained the reason as to why the issue of jurisdiction was not considered as the preliminary issue. Since the Court has already expressed its mind on the contentions now set up by the learned senior counsel for the petitioners regarding the maintainability of the suit and not stating reasons for adjourning I.A.No.1506 of 2018, no purpose will be served by directing the court below to consider I.A.No.1181 of 2018 and to pass order afresh. It would only be a futile exercise, as was correctly contended by the learned counsel for the contesting respondents. On a perusal of the common order challenged in O.P(C).No.3163 of 2018, I find that, there is considerable force in the contention of the learned counsel for the contesting respondents. Though the court below did not give any reason as to why I.A.No.1181 of 2018 was posted along with the suit to be considered at the time of trial, the reasoning which ought to have been disclosed there, are seen now recorded in the common order under challenge in O.P(C).No.3163 of 2018. It is seen that, an identical application filed as I.A.No.1506 of 2018 seeking the same relief as I.A.No.1181 of 2018 was posted along with the suit and detailed reasons are given by the court below as to why the matter needs to be considered O.P(C).Nos.2567 and 3163 of 2018 9 along with the suit. In the light of this, I feel that, directing the court below to consider whether it proposes to consider I.A.No.1181 of 2018 as a preliminary issue can only be an empty formality. 9. Learned counsel for the contesting respondents invited my attention to the decision of the Honourable Supreme Court in **Chandradhoja Sahoo v. State of Orissa and Others (2012 KHC 4782)** wherein the Honourable Supreme Court had directed all courts to decide the lis before it on all issues as may be raised by the parties, though in its comprehension, the same can be decided on a single or any given issue without going into the other questions raised or that may have arisen. According to the court, such a course of action was necessary to enable the next Court in the hierarchy to bring the persons before it to a full and complete conclusion, instead of causing a remand of the matter for a decision on the issue(s) that may have been left undetermined. In **Mary v. Mathew Joseph (1992 KHC 35)** , learned Single Judge of this Court had held that the trial court had discretion in deciding as to whether an issue has to be tried as a preliminary issue. Court noted that in that case, it was not shown that the declining of the request to try the issue as a preliminary issue was likely to cause injustice. In the case at hand, there is nothing on record to show that, if the preliminary issue is decided along with the suit, any injustice will be caused to the defendants. In the absence of any such material, I am inclined to hold that the decision in **Mary v. Mathew Joseph (supra)** will apply to the facts of this case. O.P(C).Nos.2567 and 3163 of 2018 10 10. At the time of hearing, it was pointed out by the learned counsel for the contesting respondents that the suit was of the year 2015 and all the pre-trial steps were over. It was submitted that the plaintiff was ready and willing to proceed for trial and that the suit itself can be disposed of on merits, rather than relegating the consideration on I.A. alone at this stage. I feel that, there is justification in the contention of the learned counsel for the contesting respondents. Accordingly, I am inclined to dismiss the original petitions with a direction for expeditious disposal of the suit. Accordingly, original petitions are dismissed confirming the impugned orders, but directing the court below to try the suit as expeditiously as possible at any rate within a period of six months from the date of receipt of a copy of the judgment, untrammelled by any of the observations made in this judgment. Original petitions are dismissed as above. Sbna/- **Sd/JUDGE** **SUNIL THOMAS** O.P(C).Nos.2567 and 3163 of 2018 11 ## **APPENDIX OF OP(C) 2567/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO. 106 OF 2015 OF THE ADDITIONAL SUB COURT, KOTTAYAM** **EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO. 106 OF 2015 OF THE ADDITIONAL SUB COURT KOTTAYAM** **EXHIBIT P3 A TRUE COPY OF THE ISSUES FRAMED BY THE SUB COURT, KOTTAYAM IN OS. NO. 106 OF 2015 DATED 10.07.2017** **EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 13/08/2018 NUMBERED AS I.A NO. 1181/2018 IN O.S. 106/2015 BEFORE THE SUB COURT, KOTTAYAM ALONG WITH THE AFFIDAVIT** **EXHIBIT P5 A TRUE COPY OF THE PRINT OF THE ORDER DATED 05/09/2018 IN O.S. 106/2015 BEFORE THE SUB COURT, KOTTAYAM OBTAINED FROM OFFICIAL WEBSITE OF THE DISTRICT COURT KOTTAYAM** O.P(C).Nos.2567 and 3163 of 2018 12 ## **APPENDIX OF OP(C) 3163/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE PLAINT IN O.S.NO.106 OF 2015 OF THE ADDITIONAL SUB COURT, KOTTAYAM.** **EXHIBIT P2** **A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.106 OF 2015 OF THE ADDITIONAL SUB COURT, KOTTAYAM.** - **EXHIBIT P3 A TRUE COPY OF THE ISSUES FRAMED BY THE SUB COURT, KOTTAYAM IN O.S.NO.106 OF 2015 DATED 10/07/2017.** **EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 13/08/2018 NUMBERED AS I.A.NO.1181/2018 IN O.S.106/2015 BEFORE THE SUB COURT, KOTTAYAM ALONG WITH THE AFFIDAVIT.** - **EXHIBIT P5 A TRUE COPY OF THE REVIEW PETITION DATED 11/10/2018 NUMBERED AS I.A.NO.1534/2018 IN O.S.106/2015 BEFORE THE ADDITIONAL SUB COURT, KOTTAYAM.** - **EXHIBIT P6 A TRUE COPY OF THE I.A.NO.1553/2018 IN O.S.NO.106/2015 BEFORE THE ADDITIONAL SUB COURT, KOTTAYAM ALONG WITH AFFIDAVIT.** - **EXHIBIT P7 A TRUE COPY OF THE PETITION DATED 6/10/2018 NUMBERED AS I.A.NO.1506/2018 IN O.S.106/2015 BEFORE THE SUB COURT, KOTTAYAM ALONG WITH THE AFFIDAVIT.** **EXHIBIT P8 A TRUE COPY OF THE REVIEW PETITION DATED 11/10/2018 NUMBERED AS I.A.NO.1534/2018 IN O.S.106/2015 BEFORE THE ADDITIONAL SUB COURT, KOTTAYAM.**