Reji N.K. and others v. P.V. Johny and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** ## **RFA.No.1 OF 2020** **AGAINST THE JUDGMENT IN OS 42/2003 DATED 26-11-2019 OF DISTRICT JUDGE, ERNAKULAM** ## **APPELLANT/DEFENDANTS 7, 12 & 21:** **1 REJI N.K., AGED 53 YEARS NADUMOLAYIL HOUSE, KUZHIYARA KARA, THIRUVANIYOOR, VILLAGE, KUNNATHUNADU TALUK, SECRETARY, ST.JOHN'S HOSPITAL, KANNIYATTUNIRAPPU, PIN-682312** **2 ELIAS AGED 44 YEARS S/O.PAPPY, PARAKULANGARA HOUSE, KIDANGAYAM KARA, KANAYANNUR VILLAGE, ERNAKULAM DISTRICT, PIN-682312** **3 T.P.WILSON AGED 46 YEARS S/O.PAILY, THACHETH HOUSE, KOKKAPPILLY KARA, THGIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682305** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.S.SYAMKUTTAN SRI.BIJU K. CHACKO** ## **RESPONDENT/PLAINTIFFS 1, 2 AND DEFENDANTS 1 TO 6, 8 TO 16,18 AND 23:** **1 P.V.JOHNY, AGED 59 YEARS S/O.VARGHESE, OOMELIL HOUSE, KOKKAPPILLYKARA, THIRUVANIYOOR VILLAE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682312** **2 N.G.GEORGE AGED 63 YEARS S/O.VARGHESE, NADUVILAPARAMBIL HOUSE, KOKKAPPILLYKARA, THIURVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-682312** - **3 ST.JOHN'S ORTHODOX SYIRIAN CHURCH, KANNIYATTUNIRAPPU, KUZHIYARA KARA, THIRUVANIYOOR VILLAGE, REPRESENTED BY ITS VICAR, PIN-682312** **4 M.V.GEORGE, AGED 72 YEARS** **S/O.VARKEY, MUREEKKAL HOUSE, THALAKODUKARA, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682305** **5 P.M.JOY AGED 60 YEARS** **RFA.No.1 OF 2020** **2** **S/O.MANI, PADINJAREKUDIYIL HOUSE, KOKKAPPALLYKARA THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PN-682312** - **6 FR.JOHN MOOLAMATTOM AGED 53 YEARS** - **S/O.FR.KURIAKOSE, VICAR, ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU, THIRUVANIYOOR VILLAGE, PIN-682312** - **7 K.P.VARGHESE AGED 75 YEARS S/O.PATHROSE, KOTTARATHUMALIL HOUSE, KOOKKAPPALLYKARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-682312** - **8 M.Y.SAJU AGED 53 YEARS** - **S/O.YOHANNAN, ADVOCATE, MALIECKAL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, MANAGER, ST.JOHN'S HIGH SCHOOL, KANNIYATTUNIRAPPU, PIN-682312** - **9 JOY AGED 56 YEARS** - **S/O.KOCHUKUNIU, CHELACHUVATTIL, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-682312** - **10 YACOB AGED 51 YEARS S/O.KUNJAPPAN, KEELATH HOUSE, THIRUVANIYOOR KARA, THIURUVANIYOOR VILLAGE, ERNAKULAM DISTRICT, PIN-682312** - **11 BENNY PAUL AGED 46 YEARS** - **S/O.PAILY, PATTULLIL HOUSE, THIURVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682312** - **12 P.V.KURIACHAN AGED 74 YEARS** - **S/O.VARKEY, PUTHENVEETTIL, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682312** - **13 K.T.PAULOSE, AGED 61 YEARS** **S/O.THOMMAN, KOLLAMKULATHIL KIDAMGAYAM KARA, KANAYANNUR VILLAGE, ERNAKULAM DISTRICT, PIN-682312** - **14 C.A.THANKACHAN AGED 54 YEARS** - **S/O.ABRAHAM, CHIRAPPATTU, KIDANGAYAM KARA, KANAYANNUR VILLAGE, ERNAKULAM DISTRICT, PIN-682305** **RFA.No.1 OF 2020** **3** - **15 BABU AGED 51 YEARS S/O.VARGHESE, CHIRAPPATTU HOUSE, KIDAMGAYAM KARA, KANAYANNUR VILLAGE, ERNAKULAM DISTRICT, PIN-682305** **16 V.M.POULOSE AGED 66 YEARS S/O.MATHEW, VAZHAKALAYIL, KANAYANNUR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682312** - **17 GEEVARGHESE AGED 78 YEARS S/O.YACOB, KOKKATTU HOUSE, KUZHTYARAL DESOM, THIURUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682312** - **18 JOHN.N.V. AGED 55 YEARS** **S/O.VARKEY KURIAKO, NEDUMOLAYIL HOUSE, KANNIYATTUNIRAPPU, KUZHIYARA.P.O., ERNAKULAM DISTRICT, PIN-682312** **(PLAINTIFF NO.3 AND DEFENDANTS 9,19, 20 & 22 DIED DURING THE PROCEEDINGS BEFORE THE COURT BELOW)** **R3 & R6 BY SRI.P.MARTIN JOSE (CAVEATOR) SRI.P.PRIJITH SRI.THOMAS P KURUVILA SRI.MANJUNATH MENON SRI.HANI P. NAIR SRI.HARIKRISHNAN S SRI.AJAI BEN JOSE** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.1 OF 2020** **4** ## **J U D G M E N T** This appeal has been preferred against the judgment and decree of the District Court, Ernakulam in O.S.No.42/2003. The District Court has decreed the Suit as prayed for by the plaintiffs, who are respondents 1 and 2 herein and 3[rd] of whom has now deceased, in the following manner:- “1. D2, D3 and D5 to D22 are removed from the posts of trustees, secretary and managing committee members of D1 church, manager of St. John's High School and secretary of St.John's hospital belonging to the church, by a mandatory injunction. 2. D2, D3 and D5 are restrained by a perpetual injunction from functioning as trustees and secretary and D8 to D22 are restrained by a perpetual injunction from functioning as managing committee members of the first defendant church. 3. D6 and D7 are restrained by a perpetual injunction from functioning as the manager and secretary respectively of St.John's High School and St. John's Hospital belonging to the first defendant church. 4. The 4[th] defendant vicar is directed to convene a pothuyogam of the first defendant church and conduct elections to the managing committee including the posts of the trustees and secretary of the church, the manager of St.John's school and the Secretary of St.John's hospital. 5. The process shall be supervised by Adv.A Balagopal, the commissioner appointed by this court as per the direction of the Hon'ble High Court. It is **RFA.No.1 OF 2020** **5** made clear that the further role of the commissioner is only the supervision of the election, which as per the 1934 constitution is to be done by the vicar. It is clarified and confirmed that the church and its institutions are liable to be governed under the 1934 constitution of Malankara Orthodox Syrian Church.” 2. The 7[th] , 17[th] and 21[st] defendants in the suit have filed this appeal impugning the judgment asserting that the directions issued by the District Court with respect to elections to be conducted to the Management of the Church in terms of the 1934 Constitution of the Malankara Orthodox Syrian Church are contrary to the earlier directions of this Court as also the declarations by the Hon'ble Supreme Court in **Fr.Issac Mattammel Cor-Episcopa v. St.Mary's Orthodox Syrian Church [2019 (4) KLT 1 (SC)];** and therefore, prays that the impugned judgment and decree set aside, with a consequential direction to the District court to dispose of the matter afresh. 3. I have heard Sri.S.V.Balakrishna Iyer, learned Senior Counsel instructed by Sri.Biju K. Chacko, appearing for the appellants in great detail. 4. Sri.S.V.Balakrishna Iyer, commenced his submissions by saying that even though the appellants are not per se **RFA.No.1 OF 2020** **6** aggrieved by the directions in the impugned judgment to have elections completed in terms of the 1934 Constitution to the Managing Committee of Church, they are concerned that the conduct of elections by the learned Advocate Commissioner appointed by it has caused deep distress and consternation to various persons including themselves, since they have not been allowed to take part in it. He says that, as is evident from the afore extracted portions of the judgment, the District Court has not made any specific provisions as to the manner in which the elections are to be conducted by the learned Advocate Commissioner, apart from saying that he will be guided by the earlier directions of this Court. He says that the directions in question appear to be those stipulated by this Court in W.P. (C)Nos.3497/2005 and 3720/2006 and says that even going by the judgment of the Hon'ble Supreme Court in ## **P.M.A.Metropolitan v. Moran Mar Marthoma [AIR 1995 SC** **2001],** all members of the Parish, who owe allegiance to the 1934 Constitution, are entitled to participate in the elections. The learned Senior Counsel says that, contrary to this, more than 1600 members were not allowed to take part in the **RFA.No.1 OF 2020** **7** elections that were conducted subsequent to the impugned judgment and decree because the Vicar of the Church, namely defendant No.4, had refused to offer them the sacrament in the form of a confession, even though they had filed their affidavits before the learned Advocate Commissioner declaring allegiance to the 1934 Constitution and offering to make such confession before the Vicar. The learned Senior Counsel then adds that, even though the District Court had, through its earlier interim orders, made provisions for the Advocate Commissioner to forward all such applications to the Vicar with a request to accept the confessions of the applicants, when the suit was decreed, all these directions were disregarded and that the Advocate Commissioner was allowed to conduct elections in any manner that he may choose fit. The learned Senior Counsel, thus predicates that the directions in the impugned judgment and decree certainly require to be modified by this Court and he prays that this appeal be thus allowed. 5. I have considered the afore submissions made on behalf of the appellants very closely and have also examined the judgment and decree passed by the court below. **RFA.No.1 OF 2020** **8** 6. It is now too well established for the requirement of a restatement that the Churches under the Malankara Orthodox Syrian Church are to be governed only by the 1934 Constitution, which is evident from the declarations of law in **P.M.A.Metropolitan (supra)** as also in the later judgment of the Hon'ble Supreme Court in **Varghese v. St.Peter's & Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)].** 7. Viewed from the afore perspective, it is indubitable that the judgment and, decree of the court below cannot be assailed by the appellants and, in fact, they do not per se do so, apart from saying that the consequent directions issued by the Court below for conduct of elections are vague and not as per the directions of this Court in the afore mentioned writ petitions. 8. That said, once the Church has been declared to be governed only by the 1934 Constitution, it is needless to say that elections to its Managing Committee will have to be conducted as per its terms ordered and as per by the directions of this Court, to the extent to which it does not run contrary to the stipulations of the Hon'ble Supreme Court. 9. The only issue that has been projected before me in **RFA.No.1 OF 2020** **9** this appeal by Sri.S.V.Balakrishna Iyer, is that more than 1600 members have not been allowed to participate in the elections conducted subsequent to the impugned judgment solely because the 4[th] defendant - Vicar of the Church refused to offer them an opportunity to make confessions. I am afraid that this is not an issue that I can consider affirmatively in this appeal since, even going by the submissions of Sri.S.V.Balakrishna Iyer, it is obvious that the appellants are assailing the actions of the Advocate Commissioner subsequent to the impugned judgment and decree, which may perhaps offer them a fresh cause of action, but would not be a ground to seek that it be set aside. 10. As far as the judgment and decree in question is concerned, it is luculent that the appellants are not challenging the declarations therein, which they cannot do in any case on account of the judgment of the Hon'ble Supreme Court in **Varghese** (supra); and obviously, therefore, the contest in this appeal is against the consequent developments, including the conduct of the elections by the learned Advocate Commissioner, which as I have already said above, cannot be a cause to be agitated in this appeal, though it may present the appellants a **RFA.No.1 OF 2020** **10** fresh cause of action, as they may be advised. 11. That being said, I am consciously avoiding answering the submissions of Sri.S.V.Balakrishna Iyer, on the question as to whether the appellants and the 1600 other members, who have allegedly not been allowed to vote, are eligible to do so, particularly as to whether they are liable to be included in the Voters' List by the Advocate Commissioner on account of their affidavits having been presented before him with a request for confession to be made before the 4[th] defendant – Vicar, since am certain that anything that I say on this issue may even affect the subsequent remedies that may be available to them, if they are so interested to invoke. 12. Suffice to say, these are not aspects that are relevant for consideration in this appeal, especially because even the appellants concede that the conclusions of the Court below are in affirmation with the declarations made by the Hon'ble Supreme Court in **Varghese (supra);** and that elections to the Managing Committee of the Church is now complete, with the new office bearers having assumed office. In the afore circumstances and for the reasons above, I do **RFA.No.1 OF 2020** **11** not deem it necessary to entertain this appeal and I therefore, dismiss it; however, without making any order as to costs on account of the rather peculiar circumstances that I have noticed herein. **Sd/-** rp **DEVAN RAMACHANDRAN JUDGE**