Rev. Fr. M.V. Abraham and Others v. St. George Orthodox Syrian Church Kadamattom and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **RFA.No.236 OF 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 17/2004 DATED 05-12-2013 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/PLAINTIFFS:** **1 REV.FR.M.V.ABRAHAM, AGED 71 YEARS S/O. VARKEY, POOVATHUMVEETIL, KADAMATTOM.** - **2 REV. FR. C.M.KURIAKOSE, AGED 47 YEARS S/O. MATHAI, CHOLATTU, KOLENCHERY P.O.** - **3 REV. FR. O.P.VARGHESE, AGED 51 YEARS S/O. POULOSE, ORAMMARIYIL, MAR PAKKOLIYOSE MOUNT, ARAMANA, MEEMPARA P.O., PUTHENCRUZ.** - **4 P.V.PAILY, AGED 57 YEARS, S/O. VARGHESE, POYEDATHUKUDIYIL HOUSE, KADAMATTOM P.O.** - **5 SOMAN GEORGE, AGED 45 YEARS, S/O GEORGE, AANIYIKKASERIL, KADAMATTOM P.O.** - **6 FR. ABRAHAM K.JOHN, S/O. JOHN, KOCHALUMKOTTU HOUSE, VICAR, ST.GEORGE ORTHODOX SYRIAN CHURCH, KADAMATTOM.** **BY ADVS. SRI.S.SREEKUMAR (SR) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS/DEFENDANTS:** - **1 ST.GEORGE ORTHODOX SYRIAN CHURCH KADAMATTOM, PIN-682 311.** **2 N.U.MATHAI, AGED 71 YEARS S/O. ULAHANAN, NANCHIRAYIL HOUSE, KADAMATTOM, TRUSTEE, ST.GEORGE** RFA 236/14 2 **ORTHODOX SYRIAN CHURCH, KADAMATTOM, PIN-682 311.** - **3 K.P.PAULOSE, AGED 68 YEARS S/O. PAILY, KUTTAPPALLIL HOUSE, TRUSTEE, ST.GEORGE ORTHODOX SYRIAN CHURCH, KADAMATTOM, PIN-682 311.** - **4 KURIAKOSE MAR THIYASCOROSE AGED 45 YEARS, S/O. YOHANNAN, PONNAMJZHIYIL, PULIKKMALI, PIN-682 311.** - **5 REV. FR. PHILIP MATHEW, AGED 38 YEARS S/O. MATHEW, VADAKKEPARAMBIL, KUMARAKOM, KOTTAYAM-686 563.** - **6 FR. PAULOSE, AGED 42 YEARS PUTHIYAMADATHIL, KOLENCHERRY P.O., PUTHUPANAM, PIN-682 311.** - **7 FR. SLEEBA PAUL, AGED 40 YEARS S/O. PAUL, VATTAVERIL, KUZHUMURI P.O.** - **8 FEV. FR. K.MATHAI, AGED 59 YEARS S/O. KURUVILA, ELANGANAMATTATHIL, NELLAD P.O., KUNNAKKAL.** - **9 FR. PAULOSE K.P., AGED 31 YEARS S/O. PAULOSE, KALIYMMELIL, KADAMATTOM, PIN-682 311.** - **10 PAULOSE, AGED 48 YEARS S/O. MATHAI, PARANAL, KADAMATTOM, PIN-682 311.** - **11 JOY, AGED 41 YEARS, S/O. KURIAKOO, PARANAL, KADAMATTOM, PIN-682 311.** - **12 BABY P.S., AGED 50 YEARS, S/O. SKARIA, PALALTHURUTHEL, KADAMATTOM P.O., PERUMMUZHI.** - **13 MARKOSE (MOHAN), AGED 43 YEARS S/O. PAPPACHAN, PEEDIKKAL KADAMATTOM, PIN-682 311.** RFA 236/14 3 - **14 MANOJ MATHAI, AGED 26 YEARS, S/O. MATHAI, MANNEKKATTU, THONNIKKA, KOLENCHERRY, PIN-682 311.** - **15 BABY, AGED 38 YEARS, S/O. ABRAHAM, PARANAL, KADAMATTOM P.O., PIN-682 311.** - **16 P.V.GEORGE, AGED 29 YEARS S/O. VARGHESE, PADINJASSERIL, KADAMATTOM.** - **17 BABU, AGED 47 YEARS, S/O. JACOB, THOTTYIL, KADAMATTOM, PIN-682 311.** - **18 ELDHOS, AGED 37 YEARS S/O.KURIAKOSE, POOTHOTTIL, OORAMANA P.O.** - **19 SAJI, AGED 39 YEARS, S/O. ABRAHAM, KARIKOTTIL(MADATHIKUDI), THONIKKA, KOLENCHERRY P.O., PIN-682 311.** - **20 SAJI, AGED 35 YEARS, S/O. MATHAI, MUNNEKKATTU, THONNIKKA, KOLENCHERY P.O., PIN-682 311.** - **R13 BY ADV. SRI.K.J..KURIACHAN (CAVEATOR) R1 & R2 BY ADV. SRI.K.PAUL KURIAKOSE R1 & R2 BY ADV. SRI.T.A.RAFEEK R13 BY ADV. SRI.R.D.SHENOY (SR.) R17 BY ADV. SRI.G.SREEKUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 236/14 4 ## **JUDGMENT** The plaintiffs in OS No.17/2004 on the files of the District Court, Ernakulam, have filed this appeal impugning the judgment of the said Court dismissing the suit finding that it is not maintainable in the absence of leave under Section 92 of the Code of Civil Procedure (CPC for short). 2. The appellants say that the Church in question, namely, the 1[st] defendant - St.George Orthodox Syrian Church, Kadamattom, is a constituent of the Malankara Orthodox Syrian Church (hereinafter referred to as ‘the Malankara Church’ for short) and therefore, that it can only be managed and governed by its 1934 Constitution, which position has unequivocally been declared by the Hon’ble Supreme Court in **P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]** and **K.S.Varghese and Others v. St.Peter's and** RFA 236/14 5 ## **St.Paul's Syrian Orthodox and Others [2017 (3)** **KLT 261 SC]** . They say that however, since the warring faction of the Malankara Church, which is called the 'Jacobite Faction', was unwilling to allow appellants 1 to 3 and 6, who are the duly appointed vicars under the 1934 Constitution - from discharging their functions in the Church, they were constrained to approach the Trial Court seeking a decree of permanent prohibitory injunction restraining defendants 4 to 20 or their successors or any other persons claiming under them from committing any act affecting the smooth functioning of the 1[st] defendant - Church and other churches under it, including the Poyedam Church, in accordance with the 1934 Constitution of the Malankara Church. 3. The appellants say that in addition, they had also sought for a permanent prohibitory injunction restraining defendants RFA 236/14 6 4 to 20 from causing any obstruction to the vicars, priests and employees of the 1[st] defendant Church in discharging their duties under the 1934 Constitution of the Malankara Church. 4. The appellants say that, therefore, effectively, what has been prayed for in the plaint is that the plaintiffs be not obstructed by the defendants from acting as per the 1934 Constitution and that in view of the declaration of law by the Honourable Supreme Court in **PMA Metropolitan and K.S.Varghese** (supra), it is now ineluctable that the Church can be governed in no other manner except under the said Constitution. They say that therefore, the finding of the Trial Court - that leave under Section 92 of the CPC was necessary and therefore, that the suit is not maintainable - cannot stand to reason or to favour in view of the RFA 236/14 7 declarations by the Hon’ble Supreme Court as afore. 5. I have heard Sri.S.Sreekumar, learned Senior Counsel instructed by Sri.Martin Jose, learned counsel appearing for the appellants and Sri.K.K.Paul, learned counsel appearing for respondents 1 and 2 but there was no appearance or representation on behalf of the other respondents, thus constraining me to dispose of this appeal without hearing them. 6. Sri.S.Sreekumar, learned Senior Counsel, submitted that the requirement of obtaining leave by the plaintiffs under Section 92 of the CPC with respect to the Church in question is wholly unnecessary because the plaintiffs 1 to 3 and 6 were asserting individual rights to function as the vicars in the 1[st] defendant Church solely on the strength of the 1934 Constitution of the Malankara Church. He says that, therefore, the RFA 236/14 8 findings of the Trial Court, in paragraph 10 of the impugned judgment - that since there are rival claimants to the posts of vicars and that if the suit is to be disposed of it would amount to the removal of one of them, sanction under Section 92 of the CPC is necessary – are untenable and contrary to law. He then asserts that these conclusions of the Trial Court are totally unsustainable, particularly after the declaration of law by the Hon’ble Supreme Court in **PMA Metropolitan** (supra), which has been approved in **K.S.Varghese** (supra), which binds all Courts under Article 141 of the Constitution of India; and therefore, that it is imperative that they be vacated, thus paving way for decreeing the suit. 7. Sri.K.K.Paul, learned counsel for respondents 1 and 2, adopts the submissions of Sri.S.Sreekumar, learned Senior Counsel, as afore, but adding to it that it is now RFA 236/14 9 rendered without any contest that the 1[st] defendant-Church can only be governed by the 1934 Constitution; and that therefore, only the plaintiffs 1 to 3, who are concededly the vicars appointed under it, can be allowed to function in the Church. He goes on to further submit that therefore, the findings of the Trial Court, that there is a dispute between the two factions and that two set of people are claiming to be the vicars of the Church, are absolutely without basis, since only plaintiffs 1 to 3 and 6, can stake such a claim legally, thus rendering the opposing claim put forward by the defendants without legs to stand on. 8. When I consider the afore submissions and go through the judgment impugned, it is luculent that the Trial Court has found, as stated by Sri.S.Sreekumar, that since there are two set of people staking claim as the RFA 236/14 10 vicars of the Church, sanction under Section 92 is necessary because, the disposal of the suit will amount to removal of one of such groups. However, after **PMA Metropolitan** (supra) and **K.S.Varghese** (supra), it cannot stand to contest that only the vicars appointed as per the 1934 Constitution can function as the vicars of the 1[st] defendant Church – it being a constituent of the Malankara Church - and therefore, legally, there can be no opposing claims by any other person or faction, as has been now concluded by the Trial Court. Ineluctably, therefore, sanction under Section 92 of the CPC also becomes unnecessary, particularly because of the declaration of law by the Hon’ble Supreme Court under Article 141 of the Constitution of India in the afore cited judgments, which binds all Courts in India. 9. Further, even on the facts involved RFA 236/14 11 in this case, there can be no doubt about the above proposition because in the written statement filed by defendants 10 to 20, they expressly agree that the 1[st] defendant Church is a constituent of the Malankara Church but that the judgment in **PMA Metropolitan** (supra) of the Hon’ble Supreme Court would not relate to individual Churches which are not parties to the said case. They further assert therein that the individuality and freedom of the parish Churches stand unaffected by the findings of the Hon’ble Supreme Court **PMA** **Metropolitan** (supra) and that they are thus entitled to govern and manage the 1[st] defendant - Church in such manner as they please based on majority decisions. I am afraid that these contentions of the defendants would now pale into total insignificance on account of the conclusive declarations of law by the Hon’ble Supreme Court in **K.S.Varghese** (supra) which RFA 236/14 12 has now taken it beyond any doubt that every constituent Church of the Malankara Church can be and will be governed only by the 1934 Constitution and in no other manner. 10. At this time, the learned Senior Counsel, Sri.S.Sreekumar, submitted that, in fact, pending this appeal, certain other parishioners had approached the Trial Court by filing O.S.No.23/2013, after obtaining leave of the Court under Section 92 of the CPC and that the said suit has been decreed declaring the 1[st] defendant Church to be a constituent of the Malankara Church and therefore, liable to be governed only under its 1934 Constitution. 11. In the afore circumstances, I cannot find favour with the findings of the Trial Court in the impugned judgment and decree; and consequently, deem it appropriate to allow this appeal as prayed for. Resultantly, this appeal is allowed and RFA 236/14 13 the judgment and decree of the Trial Court in OS No.17/2004 is set aside, I, consequently, decree the suit as prayed for by the plaintiffs, thus injuncting defendants 4 to 20 or their successors or any other persons claiming under them, from committing any act affecting the smooth functioning of the 1[st] defendant Church and other Chruches under it, including the Poyedam Church; and also against obstructing the plaintiffs from discharging their duties as vicars, priests and employees of the 1[st] defendant Church and Churches under it, including the Poyedam Church, in accordance with the 1934 Constitution of the Malankara Orthodox Syrian Church, granting a further declaration that the 1[st] defendant - Church shall be governed only by the said Constitution in terms of the declaration of law by the Hon’ble Supreme Court and in no RFA 236/14 14 other manner. **Sd/-** RR **DEVAN RAMACHANDRAN JUDGE**