RFA No. 677 of 2010

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942** **RFA.No.677 OF 2010** **AGAINST THE JUDGMENT AND DECREE IN OS 11/2003 OF I ADDITIONAL DISTRICT COURT,ERNAKULAM** ## **APPELLANTS/PLAINTIFFS:** **1 FR.C.K.POULOSE, S/O. KORA, AGED 58, VICAR, ST GEORGE JACOBITE SYRIAN CHURCH, MAROTTICHAL, RESIDING AT CHETTIYARAYIL HOUSE, MULAYAM P.O., CHAVARAMPADAM. 2 V.V.JOSE, S/O.VARGHESE, AGED 43, RESIDING AT VAKKANAMPADATHIL HOUSE, MAROTTICHAL P.O, MANNAMANGALAM VILLAGE, TRICHUR DISTRICT.** **BY ADVS. SRI.S.SREEKUMAR (SR) SRI.K.K.APPU SRI.T.M.JOSEPH SHYLAN SRI.K.K.APPU** ## **RESPONDENTS/DEFENDANTS:** **1 YACOB, S/O.MATHEW, AGED 43, ANCHERYKUDY HOUSE, MAROTTICHAL P.O, TRICHUR DISTRICT-680 014. 2 P.M.JOSEPH, S/O.MATHEW, AGED 60 YEARS, PULLINAT HOUSE, MAROTTICHAL P.O., TRICHUR DISTRICT 680 014. 3 M.T.THOMAS, S/O.THOMMAN, AGED 54, *(DIED) MANNAMKUZHI HOUSE, VELLUPADAM P.O, TRICHUR 680 303. *(It is recorded that 3[rd] respondent died and since no relief is sought against him individually, it is not necessary to implead his legal heirs as per order dated 13/01/2012 in memo vide CF No.3665/11 dated 11/07/2011.)** **4 M.M.MATHEW, S/O.MATHAI, AGED 48, MANAYATHKUDI HOUSE, MAROTTICHAL P.O, TRICHUR DISTRICT 680014** **RFA.No.677 OF 2010 2** - **5 THARIAN, S/O.VARGHESE, AGED 42, MUZHAYIL HOUSE, MAROTTICHAL P.O, TRICHUR DISTRICT 680014.** - **6 VARGHESE, S/O.VARKEY, AGED 55, NEDUVANKUZHIYIL HOUSE, MAROTTICAL P.O, TRICHUR DISTRICT 680014.** - **7 CHACKAPPAN, S/O.PAILY AGED 55, NELLIKKUDI HOUSE, MAROTTICHAL P.O, TRICHUR DISTRICT 680014.** - **8 FR.REJI KUZHIKKATTIL, AGED 33, S/O. ISSAC KUZHIKKATTIL, VADAKKANCHERRY P.O, PALAKKAD DISTRICT 680 582.** - **9 THOMAS MAR DIONYSIUS, METROPOLITAN MOUNT TABORE, BISHOP'S HOUSE, KOTHAMANGALAM PO, ERNAKULAM DISTRICT 686 691.** **R1-2, R4, R8-9 BY ADV. SRI.LIJU. M.P R1-2, R4, R8-9 BY ADV. SRI.SAJAN VARGHEESE K.** - **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON** - **21.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.677 OF 2010 3** ## **CR** ## **JUDGMENT** This appeal is one among the long line of litigation between the two factors in the Malankara Orthodox Syrian Church; with a variation that the members of the 'Patriarch faction' in this case assert that the Church in question is an independent one, consecrated not as part of the Malankara Church, thus claiming full control over it, in exclusion to the rival 'Orthodox faction'. 2. Thus, the answer to the afore assertion will clinch this case, which surely pivots on the pleadings and evidence available on record, for which, a look through them is fit necessary. **==> picture [358 x 12] intentionally omitted <==** plaintiffs in O.S.No.11 of 2003, on the files of the I Additional District Court, Ernakulam. 4. The afore mentioned suit had been instituted by the appellants as plaintiffs, ## **RFA.No.677 OF 2010 4** alleging that the 1[st] among them is the Vicar and the 2[nd] among them is a Trustee of the St.George Jacobite Syrian Church, Marottichal. 5. According to them, the Church in question is a constituent of the Malankara Jacobite Syrian Church, also known as the Malankara Orthodox Syrian Church (hereinafter referred to as ‘the Malankara Church’ for short) and that it can only be governed by its 1934 Constitution, thus empowering them to act as the Vicar and the Trustee respectively. They thus prayed that the 1[st] among them be declared to be the Vicar of the Church, while the 2[nd] among them be declared to be its Trustee; as also for a perpetual injunction restraining the defendants and their agents from obstructing them from exercising their respective functions or in interfering with the religious worship and services in such capacity. 6. The defendants, who are stated to be the Parish members of the Church in question, ## **RFA.No.677 OF 2010 5** filed a written statement, wherein, they expressly conceded that ‘ _the St.George Jacobite Syrian Church, Marottichal, is a Parish Church in the Malankara Church included_ _in the Thrissur Dioceses_ ’ _(sic)_ . After saying so, they contended that the Church in question is owned and therefore, liable to be governed only by the “Patriarch faction” of the Malankara Church and that it was consecrated by the said faction, under the grace of Thomas Mar Dionysius – the Metropolitan of the Thrissur Bhadrasanam of the “Patriarch faction”. They have further averred that the earlier Metropolitan of the Thrissur Diocese was Mar Miletius Yuhanan, who was initially appointed to such position by the Patriarch of Antioch, but that since he switched loyalty and crossed over to the “Catholicos faction”, the Patriarch issued a “Kalpana” (decree) removing him as the Metropolitan of the Thrissur Diocese and substituting Mar Dionysius in such position. They say that, ## **RFA.No.677 OF 2010 6** therefore, the appellants cannot seek any right to be the Vicar or the Trustee of the Church in question, particularly because it is owned and governed by the “Patriarch faction” of the Malankara Church. On these and other contentions they prayed that this suit be dismissed. 7. I notice that the suit was, taken to trial by the learned District Judge and the following issues were framed:- “ 1. Whether the first plaintiff is entitled to get a declaration that he is the vicar of the church and the second plaintiff is the trustee of the church as prayed for? 2. Whether they are entitled to be in possession and management of the plaint schedule church and its assets as the vicar and trustee? 3. Whether the plaintiffs are entitled to get an order or injunction against the defendants as prayed for? 4. Whether the 8th defendant is to be restrained by an order of injunction as prayed for? 5. Relief and costs.” 8. An additional issue was, subsequently framed as to ‘ _whether the suit is maintainable_ _in view of Section 92 of the CPC’._ 9. The learned Judge then proceeded to ## **RFA.No.677 OF 2010 7** consider the additional 6[th] issue relating to the maintainability of the suit and found that since its leave under Section 92 of the Civil Procedure Code had not been obtained by the appellants, the suit is not maintainable; and thus dismissed it without entering into any of the other issues framed. 10. It is this judgment and decree which have been assailed by the appellants before this Court. 11. I have heard Shri.S.Sreekumar, learned Senior Counsel, instructed by Shri.K.K.Appu, learned counsel appearing for the appellants and Shri.Sajan Varghese K., learned counsel appearing for respondents 1,2,4,8 and 9. 12. At the time when I started hearing this matter, Shri.Sajan Varghese sought leave to say that this appeal is now no longer maintainable since the 1[st] appellant has issued a letter to the Registrar of this Court, as also to his client, that he does not intend to prosecute this appeal. He said that these ## **RFA.No.677 OF 2010 8** letters have been produced on record as Annexures A to C, along with I.A.No.1 of 2020. I see that this application has been filed by the respondents seeking that this appeal be dismissed as having become infructuous on account of these letters; but Shri.K.K.Appu, learned counsel for the appellants, submitted that even though he had also received Annexure B from the 1[st] appellant, he has not been instructed not to argue this appeal, adding that the 2[nd] appellant is still interested and therefore, that the legal aspects herein are still alive for consideration of this Court. 13. Shri.S.Sreekumar, learned Senior Counsel, also affirm these submissions, as being instructions given to him by Shri.K.K.Appu, further asserting that, in any event of the matter, this appeal does not become infructuous - as now claimed by the respondents-merely because the 1[st] appellant withdraw from it, even assuming that the letters are found to be genuine. ## **RFA.No.677 OF 2010 9** 14. On hearing the learned counsel as above, I called for the relevant documents from the Registry and have been told that Annexure A letter has been received by the Registrar of this Court, indicating that the 1[st] appellant is not interested in prosecuting this appeal. Even if this be so, the fact remains that the 2[nd] appellant is still in the fray and his learned Senior Counsel, Shri.S.Sreekumar, submits that he has been instructed by Shri.K.K.Appu to argue this appeal on his behalf. 15. At this time, Shri.Sajan Varghese, learned counsel for the respondents, submitted that the 2[nd] appellant cannot maintain this appeal on his own because he is no longer a member of the Parish of the Church in question and that he is a Trustee of another Church. He contends, therefore, that this appeal has now become non-maintainable, apart from being infructuous. 16. When I proceed to evaluate the afore ## **RFA.No.677 OF 2010 10** submissions, I must keep in mind that, as stated above, the learned District Court has dismissed the suit solely on the ground that its leave under Section 92 of the CPC had not been obtained. I am afraid that these findings cannot sustain 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].**_ The indubitable declaration by the Hon’ble Supreme Court in the said judgment is that every Church, which is a Constituent of the Malankara Church, will require to be governed and administered only by its 1934 Constitution. It is ineluctable from this judgment that all issues as to how a constituent Church is to be governed; as to how the Priests and other ecclesiastical posts are to be filled etc., have been dealt with affirmatively, which declarations operate under Article 141 of the Constitution of India. ## **RFA.No.677 OF 2010 11** 17. The said judgment apodictically stipulates that since a constituent Church of the Malankara Church can be governed only as per its 1934 constitution, no other Scheme for its management is necessary or possible; and further that the findings in _**P.M.A.Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]**_ and _**K.S.Varghese (Supra)**_ operate as a _resjudicata_ in all cases with respect to the governance and control over such Churches. 18. Obviously, therefore, the finding of the Trial Court that the suit is bad for want of leave under Section 92 of the CPC cannot now have legs to stand on consequent to the judgment of the Hon’ble Supreme Court in _**K.S.Varghese (Supra).**_ This is more so because, in _**Fr.Issac Mattammel Cor Episcopa v. St. Mary's Orthodox Syrian Church [2019 (4) KLT 1(SC)],**_ after noticing the specific declarations and directions in _**K.S.Varghese (Supra)**_ their lordships directed all Courts in **RFA.No.677 OF 2010 12** the following manner:- “6. It is made clear to all concerned more so, to the Courts that in future the violation of judgment and order to be viewed seriously. Let similar matters which are pending be decided following aforesaid judgment and order. There can be no further litigation as the decision in representative suit is binding” 19. It is thus ineluctable from the above, that if the Church in question is found to be a constituent of the Malankara Church, then it can only be governed by its 1934 Constitution, whether an issue to that effect had been framed by the Trial Court or otherwise. 20. In this context, it becomes necessary for this Court to look through the averments of the defendants in the written statement. 21. As I have already seen above, they start by conceding that St.George Jacobite Syrian Church, Marottichal, _“is a Parish Church in the Malankara Church included in the Thrissur Diocese”(sic)._ The “Malankara Church” they are referring to the Malankara Orthodox Syrian Church, which was the subject matter in _**P.M.A.Metropolitan (Supra)**_ and _**K.S.Varghese**_ _**(Supra).**_ Obviously, therefore, this amounts to ## **RFA.No.677 OF 2010 13** an express admission under the provisions of Order XV Rule 1 of the CPC, that the Church in question is a constituent of the Malankara Church. When that be so, the fact that the 1934 Constitution of the Malankara Church, being the sole document which should govern it, becomes irrefragable. 22. It may be true that the prayers sought for in the plaint are with respect to two individuals, who seek to assert their respective capacities as Vicar and Trustee. In that sense also Section 92 leave was not necessary, but eventually all this relates to the governance and control of the church. 23. Going by the subsequent developments in the appeal, particularly the letters issued by the 1[st] appellant to the effect that he is not interested in prosecuting this appeal and the allegation of the defendants, _albeit_ unsubstantiated at this time, that the 2[nd] appellant is no longer a member of the parish of the Church, I am of the certain view that ## **RFA.No.677 OF 2010 14** this Court will be fully justified in invoking Order XLI Rule 33 of the CPC in decreeing the suit, without acceding to the prayers made in the plaint, but declaring that the Church in question, namely St.George Jacobite Syrian Church, Marottichal - being a constituent of the Malankara Church – is amenable to be governed only by the 1934 Constitution and no other. This is the spirit of the judgment of the Hon’ble Supreme Court in _**K.S.Varghese (Supra)**_ further reiterated in _**Issac**_ ## _**Mattammel(Supra).**_ 24. I am fortified in my opinion as afore, because, as I have already indited above, the specific case of the defendants is that the Church was being governed by the “Patriarch faction” of the Malankara Church under Thomas Mar Dionysius, who is claimed to be the Metropolitan of the Thrissur Diocese of the said faction. However, in _**Mar. Miletius Yuhanon v. Mar. Thomas Dionysius and Others**_ _**[2020 (4) KHC 14]**_ this Court has already ## **RFA.No.677 OF 2010 15** considered the claim of Mar Miletius Yuhanon to be the metropolitan of the Thrissur Diocese of the Malankara Church and has declared expressly that since he has subscribed to the 1934 Constitution in terms of the directions of the Hon’ble Supreme Court, he is entitled to continue as the said Metropolitan and that Mar Thomas Dionysius cannot make any such conflicting claim. 25. While arriving at this conclusion, this Court had also assessed and evaluated the ‘Kalpana’ (decree) issued by the Patriarch of Antioch - removing Mar Miletius Yuhanon as the Metropolitan of the Thrissur Diocese - finding it to be contrary to the directions of the Hon’ble Supreme Court in _**P.M.A.Metropolitan (Supra)**_ and _**K.S.Varghese (Supra),**_ thus declaring that no one else other than him can stake a claim to the position of the Metropolitan of the Thrissur Diocese of the Malankara Church. 26. In recapitulation, since it is now ## **RFA.No.677 OF 2010 16** rendered uncontestable that St.George Jacobite Syrian Church, Marottichal, is a constituent of the Malankara Church and since the 1[st] appellant appears not ready to prosecute this appeal further; while the position of the 2[nd] appellant as being a member of the Parish of the said Church is severely disputed; I deem it appropriate not to grant any of the reliefs as sought for in the plaint, but to order this appeal, declaring that the said Church will be governed by the 1934 Constitution of the Malankara Church and will be administered solely in terms of the same. Resultantly, this appeal is allowed in part, setting aside the judgment and decree of the Trial Court; and consequently decreeing the suit, under the provisions of Order XLI Rule 33 of the CPC, in the following manner:- St.George Jacobite Syrian Church, Marottichal, being a constituent of the Malankara Orthodox Syrian Church, is hereby declared to be capable of being administered **RFA.No.677 OF 2010 17** only under the 1934 Constitution of the Malankara Orthodox Syrian Church and that all posts and positions therein, including ecclesiastical and otherwise, shall be officiated and filled up only in the manner as provided by the said Constitution. In view of the peculiar circumstances involved, there will be no order as to costs and the parties will suffer their respective costs. **Sd/DEVAN RAMACHANDRAN JUDGE** MC/27.7.2020 **RFA.No.677 OF 2010 18** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A- TRUE COPY OF THE COMMUNICATION DATED 21.3.2020 RECEIVED FROM THE FIRST APPELLANT. ANNEXURE B- TRUE COPY OF ANOTHER COMMUNICATION DATED 21.3.2020 RECEIVED FROM THE FIRST APPELLANT ANNEXURE C- TRUE COPY OF THE LETTER DATED 11.6.2020 RECEIVED FROM THE FIRST APPELLANT WHICH WAS SENT TO THE 2ND APPELLANT.** **MC** **(TRUE COPY) PA TO JUDGE**