RFA No. 200 of 2019 (Against the Decree and Judgment in OS 32/2005, dated 20-03-2019, of the First Additional District Court, Ernakulam)

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **RFA.No.200 OF 2019** **AGAINST THE DECREE AND JUDGMENT IN OS 32/2005 DATED 20-03-2019 OF FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/DEFENDANTS 1,4 TO6,8,11&1 2:** **1 ST.MARY S JACOBITE SYRIAN ORTHODOX CHURCH THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, REPRESENTED BY ITS TRUSTEES (1) M.C.SHIBU (2) BENNY ELIAS.** - **2 M.C.SHIBU, AGED 51 YEARS, S/O.CHACKO, MAMALAKUNNATH HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.** - **3 BENNY ELIAS, AGED 50 YEARS, S/O.ELIAS, APPOZHATHU HOUSE, MUTTAM KARA, MUTTAM VILLAGE, THODUPUZHA TALUK.** - **4 KURIAKOSE MATHAI, AGED 64 YEARS S/O.MATHAI, KUSANILATHUPUTHANPURAYIL, KUNNATHUPARA KARA, MANACADU VILLAGE, THODUPUZHA TALUK.** - **5 BENNY K.M., AGED 56 YEARS S/O.MATHAI, KOLLAMKOTTIL HOUSE, MUTTAM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT.** - **6 JOMON MARKOSE, AGED 47 YEARS S/O.MARKOSE, KURUMADATHIL HOUSE, OLAMATTOM, THODUPUZHA TALUK, IDUKKI DISTRICT.** - **7 BENNY P.IYPE, AGED 57 YEARS, S/O.IYPE, PURAMANA HOUSE, MRALA P.O., ALANKODE, THODUPUZHA TALUK.** - **BY ADV. SRI.K.J.KURIACHAN** **RESPONDENTS/PLAINTIFFS 1 TO 4 & DEFENDANTS 2 AND 3,7,9&10:** - **1 DR.ABRAHAM VARGHESE, AGED 80 YEARS S/O.VARGHESE, KULIRANKAL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.** RFA 200/19 2 - **2 P.C.DAVID, AGED 64 YEARS, S/O.CHERU, PULIKKOTTIL HOUSE, KUNNATHUPARA KARA, MANAKKAD VILLAGE, THODUPUZHA TALUK.** - **3 A.P.VARGHESE, AGED 65 YEARS, S/O.POULOSE, ALAMKULAM HOUSE, VENGALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA.** - **4 M.J.THOMAS, AGED 79 YEARS, S/O.JOHN, MATTATHIL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK.** - **5 REV.FR.P.C.CHERIAN, AGED 65 YEARS S/O.CHACKO, PALAKKATTUMALIL HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNAD TALUK.** - **6 REV.FR.PRINCE JOHN, AGED 50 YEARS S/O.FR.JOHN, KALAPPURACKAL HOUSE, KINGINIMATTAM KARA, EZHAKKARANAD VILLAGE.** - **7 RAJAN MATHAI, AGED 60 YEARS S/O.MATHAI, PUTHAN VEETTIL HOUSE, EDVETTY P.O., KARIKODE, THODUPUZHA, IDUKKI DISTRICT.** - **8 SAJU M.C., AGED 55 YEARS, S/O.CHACKO, MAMALAKUNNATH HOUSE, OLAMATTOM, THODUPUZHA TALUK, IDUKKI DISTRICT.** - **9 ARUN CHERIYAN, AGED 28 YEARS, S/O.CHERIAN, POOCHAKUZHIYIL HOUSE, MUTTAM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT.** **R1-4 BY ADV. SRI.S.SREEKUMAR (SR.) R1-4 BY ADV. SRI.P.MARTIN JOSE R1-4 BY ADV. SRI.P.PRIJITH R1-4 BY ADV. SRI.THOMAS P.KURUVILLA** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 200/19 3 ## **JUDGMENT** This appeal has been filed by defendants 1, 4 to 6, 8, 11 and 12 in O.S.No.32/2005 on the files of the First Additional District Court, Ernakulam. 2. The suit in question was laid on file by respondents 1 to 4 herein, _inter alia_ seeking a declaration that the 1[st] appellant Church, which was the first defendant in the suit, is liable to be governed under the 1934 Constitution of the Malankara Sabha. The suit was taken to trial and after an exhaustive evaluation of the evidence on record and the testimony of the witnesses, the District Court decreed the suit in the following manner: In the result, the suit is decreed in part and it is declared that D1 Church is liable to be governed under the 1934 Constitution of Malankara Sabha. D2 is directed to convene a pothuyogam of D1 church and conduct an election to its Managing Committee including the trustees and secretary in accordance with the 1934 Constitution. D4 and D5 are also directed by a mandatory injunction to hand over the mammodeesa register, vivaha register, marana register, edvakayoga register, kumbasara register, edavaka register and the file containing various kalpanas, to the second defendant vicar. The relief for removal of D4, D5 and D6 from the Managing Committee of D1 church RFA 200/19 4 is declined and they are entitled to continue in office till the conduct of elections. The contesting defendants (D4 to D12) shall pay the costs of suit to the plaintiffs. It is this decree which has been now assailed in the appeal. 3. At the outset, it is without doubt that the Hon'ble Supreme Court has already declared in **Varghese v. St.Peter's and Paul's Syrian** **Orthodox Church [2017(3)KLT 261]** that the Churches under the Malankara Sabha are to be governed exclusively under the 1934 Constitution; and through subsequent orders, in **Fr.Issac Mattammel Cor-Episcopa v. St.Mary's** **Orthodox Syrian Church [2019(4) KLT 1],** all Courts in India have been directed to make sure that litigations contrary to this declaration are not entertained. 4. In the afore background, it is indubitable that this Court cannot find fault with the judgment and decree impugned because, as is clear from the afore extracted portion of RFA 200/19 5 the judgment, the learned Additional District Court has only declared that the 1[st] defendantChurch is liable to be governed under the 1934 Constitution of the Malankara Sabha. 5. That apart, Sri.K.J.Kuriachan, learned counsel appearing for the appellants, concedes that, as matters now stand-resultant to the afore declarations of the Hon'ble Supreme Court-his clients cannot have any grievance against the impugned decree and judgment to the extent that the 1[st] defendant-Church is liable to be governed under the 1934 Constitution of the Malankara Sabha. He also concedes that elections to the 'pothuyogam' of the Church has been completed and that the newly elected members of the Managing Committee have already assumed charge. 6. However, the contention impelled by Sri.K.J.Kuriachan, interestingly, is that elections were not conducted properly and that RFA 200/19 6 appellants 4 and 5 herein and similarly placed persons-who were the earlier Trustees of the Church-have been illegally excluded from the election processes and therefore, that the elections are untenable. 7. In response, Sri.S.Sreekumar, learned Senior Counsel, assisted by Sri.Martin Jose, learned counsel for respondents 1 to 4, submits that this appeal is not maintainable and that it should be rejected at the threshold on account of the affirmative declarations by the Hon'ble Supreme Court, as already seen above. He says that, in any event of the matter, even if assuming it is not so, this appeal has become infructuous since elections to the 'pothuyogam' have been completed and nothing survives for further evaluation by this Court. He, therefore, prays that this appeal be dismissed. 8. I notice from the endorsements on the RFA 200/19 7 file that the appellants have not taken steps for service of notice to respondents 5 to 9 in spite of the orders of this Court dated 03.12.2019. That being so and even though the said respondents have not been served, I do not deem it necessary that this appeal should be kept pending on the files of this Court, particularly because this Court had issued notice to them only on admission, as is evident from the order dated 03.12.2019. This is more so because, on account of the affirmative declarations made by the Hon'ble Supreme Court, any contrary view taken by the District Court, this appeal is impermissible. 9. Further, as I have already said above, it is pertinent that even the appellants do not challenge the decree and judgment _per se_ , but are now impelling contentions that the elections, as ordered by the District Court, have not been conducted in the manner as has RFA 200/19 8 been sanctioned under the 1934 Constitution of the Malankara Sabha. This certainly is not an issue that arises in this appeal and if the appellants intend to pursue any such case, it is up to them to invoke appropriate remedies as may be available to them; and a collateral challenge to such effect in this appeal and that too after the impugned decree and judgment have been implemented fully, if not, substantially cannot be countenanced. In the afore circumstances and being fully guided by the declarations of the Hon'ble Supreme Court in **Varghese** (supra) and **Fr. Issac Mattammel** (supra), I see no reason to entertain this appeal; and consequently dismiss it, however, without making any order as to costs, taking note of the peculiar circumstances involved. **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** RFA 200/19 9