## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942**
## **RFA.No.1 OF 2017**
**AGAINST THE JUDGMENT AND DECREE IN OS 71/2013 DATED 22-07-2015 OF SUB COURT, PERUMBAVOOR**
## **APPELLANT/1ST PLAINTIFF:**
**PAUL VARGHESE, AGED 54 YEARS, S/O. VARGHESE, KUNUVICHIRANGARA HOUSE, PATTIMATTOM KARA, KAITHAKKATTU, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM.**
## **BY ADV. SRI.SABU THOZHUPPADAN**
## **RESPONDENTS/DEFENDANTS/IIND PLAINTIFF:**
- **1 BASELIOUS THOMAS 1ST CATHOLICOS AGED 84 YEARS, S/O. MATHU, RESIDING AT PATRIARCHA CENTRE, JACOBITE SYRIAN CHRISTIAN CHURCH, PUTHENKURISHU, PUTHENCRUIZ VILLAGE, ERNAKULAM 682 308.**
- **2 GEORGE MATHEW THEKKETHALAKKAL AGED 52 YEARS, S/O. MATHEW, THEKKETHALAKKAL HOUSE, HOUSE NOL 113, GIRINAGAR, ELAMKULAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM 682 301.**
- **3 THAMPU GEORGE, AGED 54 YEARS, S/O. GEORGE, PULIYATTU THUKALAN HOUSE, MULAMTHURUTHY, MULAMTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM 682 314.**
- **4 JACOBITE SYRIAN CHRISTIAN CHURCH, HAVING ITS HEAD QUARTERS AT PATRIARCHAL CENTRE, PUTHENCRUZ, PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT, REPRESENTED BY BASELIUS THOMAS IST CATHOLICOS AND METROPOLITIAN TRUSTEE OF JACOBITE SYRIAN CURCH 682 308.**
- **5 THE MANAGING COMMITTEE OF JACOBITE SYRIAN CHRISTIAN CHURCH, HAVING ITS QUARTERS AT PATRIARCHAL CENTRE, PUTHENCRUZ, PUTHENCRUZE VILLAGE, ERNAKULAM DISTRICT, REPRESENTED BY BASELIUS THOMAS IST CATHOLICOS 682 308.**
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**6 MANOJ KOKKAD, AGED 36 YEARS, S/O. MATHEW, KOKKATTU HOUSE, MULAPPURAM, KARIMANNOOR, IDUKKI 685 602.**
**R1-5 BY ADVS. SRI.K.J.KURIACHAN SRI.SUNIL JACOB**
**THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
The plaintiff in OS No.71/2013 on the
files of the Sub Court, Perumbavoor, has filed this appeal, impugning the judgment of the said Court dated 22.07.2015, as being
unlawful and illegal.
2. The appellant says that the 5[th]
respondent-Jacobite Syrian Christian Sabha is an independent organisation, to which various
Parish Churches owing allegiance to the Patriarch of Antioch is affiliated; but
alleges that it has been run in a manner
which is deleterious to its very existence by
the other respondents. He says that it is in
such circumstances, he and the 2[nd] plaintiff
filed the suit seeking removal of the
trustees of the 5[th] respondent; for rendition
of its accounts and for settlement of a
scheme under Section 92 of the Code of Civil
Procedure (CPC for short), for its management
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and control.
3. The appellant says that, however, the Trial Court, without considering the issues between the parties correctly, entered into a presumption that the 5[th] respondent and all Churches under it are, in fact, part of the Malankara Orthodox Syrian Church (hereinafter referred to as ‘the Malankara Church’ for short) and therefore, that they can be controlled and governed only under the 1934 Constitution of the said Church. He vehemently asserts that the 5[th] respondent Sabha is a completely independent one, which has absolutely no connection or affiliation to the Malankara Church and therefore, that
it is being governed by its own constitution and not by the 1934 Constitution of the
latter. He thus prays that the judgment of
the Trial Court be set aside particularly because, it has been concluded therein that
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leave under Section 92 of the CPC cannot be granted with regard to the 5[th] respondentSabha in view of the judgment of the Hon’ble Supreme Court in **K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and**
**Others [2017 (3) KLT 261 SC].**
4. I have heard Sri.Sabu Thozhuppadan K., learned counsel for the appellant and Sri.Sunil Jacob, learned counsel appearing for respondents 1 to 5.
5. Sri. Sabu Thozhuppadan, learned
counsel appearing for the appellant, began his submissions by saying that the
fundamental flaw in the impugned judgment is that the Trial Court has proceeded as if the 5[th] respondent and all of its Churches are part of the Malankara Church. He says that the further finding of the Trial Court that the names of the Churches are not appended to the plaint is also without any basis because,
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in Exts.P15,P16,P17,P18 and P26, the
identities of the constituent Churches are clearly mentioned and that it is luculent therefrom that none of them have any affiliation or allegiance to the Malankara Church. He says that, therefore, the finding of the Trial Court, that leave under Section 92 of the CPC cannot be granted as far as the
creation of the scheme for the 5[th] respondent on account of the declaration of law by the Hon’ble Supreme Court in **K.S.Varghese**
(supra), is wholly wrong; and therefore, that this Court must set aside the impugned judgment and permit his clients to prosecute the suit in terms of law.
6. Sri.Sunil Jacob, learned counsel
appearing for respondents 1 to 5, in response submits that, even though the findings in the impugned judgment, that the Churches involved are constituents of the Malankara Church, is
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unsustainable, the final conclusion which the
Court has arrived at - namely that the prayers sought for cannot be entertained, either under Section 92 of the CPC or
otherwise - may not be disturbed, because all
the prayers in the suit have now become infructuous and are incapable of being considered by any Court as per the criterion enumerated in Section 92 of the CPC. He,
therefore, prays that this appeal be dismissed; however, conceding that some of
the observations therein would certainly cause prejudice to his clients also, since by concluding that the Churches involved are part of the Malankara Church, the Court certainly has entered into a wrong finding.
7. When I consider the submissions of the learned counsel as afore, as also the
materials and documents available on record, it is ineluctable that the specific case of
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the plaintiff is that the 5[th] respondent-Sabha has got no affiliation or connection whatsoever with the Malankara Church. According to them, the 5[th] respondent is a completely independent and autonomous body, which has several Parish Churches under it and therefore, that an application under Section 92 of the CPC, to formulate a scheme for its management, is certainly maintainable. 8. When the afore assertion of the plaintiff are virtually conceded by the respondents also - since they also affirm that the Churches in question, though not mentioned specifically, are not part of the Malankara Church - the Trial Court was certainly obligated to consider it on its merits, rather than enter into an automatic conclusion that the 5[th] respondent-Sabha and the Churches they claim as being affiliated
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to it can only deemed as being constituents of the Malankara Church. The tenor of the impugned judgment is to the effect that since the 5[th] respondent - Sabha and all the Churches, on which it claims control, are part of the Malankara Church, they can be governed only by its 1934 Constitution; and consequently that going by the judgment of the Hon’ble Supreme Court in **K.S.Varghese** (supra) a new scheme cannot be formulated.
9. In this context, I must say that if, as a matter of fact, the Trial Court finds that the 5[th] respondent Sabha and the Churches
under it are part of the Malankara Church, then the conclusions that it has arrived at in the judgment cannot be found to be in error.
10. However, the real question is whether this is factually correct, which could have been decided by the Trial Court only after
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evidence have been lead by the parties.
11. That said, at the stage of grant of leave under Section 92 of the CPC, what the Trial Court ought to have considered was whether the 5[th] respondent is a public charity and whether the prayer sought for in the plaint and in the counter pleadings could justify its grant. Of course, the Court will certainly be required and justified in enquiring whether the Churches claimed by the 5[th] respondent are part of the Malankara Church or otherwise, but this could have been done only after it had gone through the relevant documents as pointed out by the parties. The impugned judgment does not show any such consideration, but indicates that the Trial Court entered into a conclusion, based on a presumption, that all these Churches are part of the Malankara Church.
12. I am, therefore, of the view that
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this is an eminently fit case where the Trial
Court must reconsider the application for leave, as also the permission to institute a suit, as prayed and sought for by the plaintiff, after affording necessary
opportunity to both sides.
In the result, this appeal is allowed and
the impugned judgment is set aside; with a
consequential direction to the Trial Court to reconsider the application for leave made by
the plaintiff and consequently the
institution of the suit, after adverting to all the documents available on record and
after assessing whether the Churches that are
claimed to be controlled by the 5[th]
respondent-Sabha are part of the Malankara Church or otherwise.
After I dictated this judgment, Sri.Sunil
Jacob submitted that, as a matter of fact, leave as prayed for by the plaintiff cannot
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be granted now because the elections to the
5[th] respondent-Sabha has already been completed and that their accounts are
settled.
I am afraid that this Court cannot accede
to this submission at this time, because
these are matters which the Trial Court ought
to take into account, while complying with
the directions herein.
Taking note of the rather peculiar
circumstances involved in this lis, I make no
order as to costs and direct the parties to suffer their respective costs.
## **Sd/-**
## **DEVAN RAMACHANDRAN**
RR
## **JUDGE**
