R.F.A. No.187/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 RFA NO.187 OF 2022** **AGAINST THE JUDGMENT IN O.S.NO.15/2016 OF SUB COURT,** ## **MUVATTUPUZHA** **-------** ## **APPELLANTS/ADDL. DEFENDANTS 7 TO 9:** - **1 M.Y.BABY, NOW AGED 67 YEARS, SON OF YOHANNAN AND RESIDING AT MADATHIKUDIYIL HOUSE, POTHANICADU KARA, POTHANICADU VILLAGE, PRESENT TRUSTEE, ST.JOHN'S BESPHAGE JACOBITE SYRIAN CHURCH, PULINTHANAM, MUVATTUPUZHA TALUK, POTHANICADU P.O., PIN - 686 671.** - **2 KURIAN VARGHESE, NOW AGED 63 YEARS, SON OF VARGHESE, RESIDING AT MADATHOTHU HOUSE, PULINTHANAM P.O., ENANALLOOR-PRESENT TRUSTEE, BESPHAGE JACOBITE SYRIAN CHURCH, MUVATTUPUZHA, PIN-686 671.** - **3 FR.T.V.THAMPI, NOW AGED 51 YEARS, RESIDING AT THEKKEKUDIYIL HOUSE, SOUTH MARADY, MARADY VILLAGE, PRESENT VICAR, BESPHAGE JACOBITE SYRIAN CHURCH, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 673.** **BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH P.V.ELIAS** ## **RESPONDENTS/PLAINTIFFS 1 TO 3 & 6 & DEFENDANTS 1 TO 4 & 10** **TO 15:** - 1 **MR. M.S.PAULOSE, NOW AGED 69 YEARS, SON OF SAMUEL AND RESIDING AT MADATHIKUDIYIL** R.F.A.No.187/2022 -:2:- **HOUSE, ENANALLOOR VILLAGE, KALAMPOOR KARA, KALAMPOOR P.O., PIN -686 673, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - 2 **MR.K.C.IYPE, NOW AGED 86 YEARS, SON OF CHACKO AND RESIDING AT KAKKANATTUPARAMBIL (KAVUMARIYIL) HOUSE, PARAMBENCHERRY KARA, ENANALLOOR VILLAGE, MUVATTPUZHA TALUK, PULINTHANAM P.O., PIN-686 671, ERNAKULAM DISTRICT.** - 3 **MR. K.I. JOSE, NOW AGED 71 YEARS, SON OF VARKEY ITTAN, RESIDING AT KAKKANATTUPARAMBIL HOUSE, PARAMBENCHERY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, P.O. PULINTHANAM, PIN - 686 671.** - 4 **MR.K.A. MATHEWS, NOW AGED 67 YEARS, SON OF ABRAHAM K.V., RESIDING AT KAKKANATTUPARAMBIL HOUSE, THEYONIVAS, PAZHAMTHOTTAM KARA, IKARANAD NORTH VILLAGE, KUNNATHUNAD TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI. SAJI PAUL, SON OF PAULOSE, RESIDING AT PUTHENPURAYIL HOUSE, PARAMBANCHERRY KARA, ENANALOOR VILLAGE, PULINTHANAM P.O., PIN - 686 671, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - 5 **ST.JOHN'S BESPHAGE ORTHODOX SYRIAN CHURCH, PULINTHANAM, PULINTHANAM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, REPRESENTED BY ITS VICAR, V.REV. FR. C.K. ISSAC COR EPISCOPA, NOW AGED ABOUT 76 YEARS, SON OF KURIAKOSE AND RESIDING AT CHENAYAPPILLIL HOUSE, PARAMBENCHERY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., ERNAKULAM DISTRICT- 686 671.** - 6 **V.REV.FR.C.K. ISSAC COR EPISCOPA, NOW AGED 76 YEARS, S/O.KURIAKOSE AND RESIDING AT CHENAYAPPILLIL HOUSE, PARAMBANCHERRY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., ERNAKULAM DISTRICT - 686 671.** - 7 **REV.FR.P.V.PHILIP, AGED NOW 69 YEARS, SON OF POTHEN AND RESIDING AT ARIMPANCHIRAYIL HOUSE, PULINTHANAM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., ERNAKULAM DISTRICT -686 671.** - 8 **REV.FR.JOSE MATHEW, NOW AGED 56 YEARS, SON OF MATHEW AND RESIDING AT THACHETHUKUDIYIL** R.F.A.No.187/2022 -:3:- **HOUSE, THANKALAM KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT P.O. KOTHAMANGALAM - 686 691.** - 9 **MR.KURIAN C. ISSAC, SON OF FR.C.K.ISSAC COR EPISCOPA, CHENAYAPILLIL HOUSE, PARAMBENCHERRY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., PIN - 686 671, ERNAKULAM DISTRICT.** - 10 **MR.THOMAS C.ISSAC, SON OF FR.C.K.ISSAC COR EPISCOPA, CHENAYAPILLIL HOUSE, PARAMBENCHERRY KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., PIN- 686 671, ERNAKULAM DISTRICT.** - 11 **MEEKHAYEAL RAMBAN, NOW AGED 59 YEARS, SON OF LATE GEORGE, PULIMOOTTIL HOUSE, KUTHUKUZHI KARA, KOTHAMANGALAM VILLAGE, KUTHUKUZHI P.O., PIN - 686 691, ERNAKULAM DISTRICT.** - 12 **MR.V.P.JOHNY, NOW AGED 56 YEARS, SON OF PAILY, KODEKKAPARAMBIL HOUSE, PULINTHANAM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, PULINTHANAM P.O., ERNAKULAM DISTRICT, PIN 686 671.** - 13 **MR.U.V.MATHEW, NOW AGED 71 YEARS, SON OF VARKEY, UNNATHUM VEETTIL, POTHANICKAD KARA, POTHANICKAD VILLAGE, KOTHAMANGALAM TALUK, POTHANICADU P.O., ERNAKULAM DISTRICT, PIN - 686 671.** - 14 **MR.M.Y.ALIAS, NOW AGED 81 YEARS, SON OF YOHANNAN, UNNATHUM VEETTIL (NOW RESIDING AT MYALIL PUTHENPURAYIL HOUSE), POTHANICKAD KARA, POTHANICKAD VILLAGE, KOTHAMANGALAM TALUK, PULINTHANAM P.O., ERNAKULAM DISTRICT, PIN - 686 671.** **BY ADVS. S.SREEKUMAR (SR.) ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2023, THE COURT ON 24.01.2023 DELIVERED THE FOLLOWING:** R.F.A.No.187/2022 -:4:- **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ---------------------------------------------R.F.A.No.187 of 2022 ---------------------------------------------Dated this the 24[th] day of January, 2023** ## **JUDGMENT** ## **A.Muhamed Mustaque,J.** This appeal was preferred by defendants 7 to 9 in O.S.No.15/2016 on the file of the Sub Court, Muvattupuzha. The dispute manifests a factional dispute among parishioners of the Syrian Malankara Church. The suit was filed in the year 2016 much before the decision of the Apex Court in **Varghese** **v. St.Peter's & Paul's Syrian Orthodox Church** **[2017 (3) KLT 261 (SC)]** . The decision of the Apex Court in **Varghese** case ( _supra_ ) would bind all disputes relating to Malankara Church. The Apex Court's decision in **Varghese** case ( _supra_ ) was in a representative suit and there was nothing left for further litigation on the matter but to ensure that binding judgment of the Apex Court in ## R.F.A.No.187/2022 -:5:- **Varghese** case ( _supra_ ) is followed in all future litigations. The Apex Court declared that the administration of Malankara Orthodox Syrian Church shall be in accordance with the provisions of the 1934 Constitution. 2. The present suit was filed for declaration and injunction of St.Johns Besphage Orthodox Syrian Church, Pulinthanam in Muvattupuzha. They seek a declaration that the aforesaid church has to be administrated in accordance with the provisions of the 1934 Constitution of the Malankara Orthodox Syrian Church. They also sought an injunction as against causing obstruction to the Vicars appointed under the 1934 Constitution. 3. The contesting defendants resisted the suit contending that there was no occasion for the first defendant church being administrated under the 1934 Constitution. The 1934 Constitution was never adopted for the administration of the Church. R.F.A.No.187/2022 -:6:- 4. The second defendant is the Vicar appointed in accordance with the 1934 Constitution. He supported the case of the plaintiffs. 5. The additional defendants 7 to 9 who are the appellants herein claim that the fourth defendant is a Vicar and disputed the _locus standi_ of the plaintiff to file the suit. It was their contention that the first defendant Church has never been administrated in accordance with the 1934 Constitution. No separate statement was filed by the fourth defendant. The fourth defendant along with defendants 5 and 6 supported the case of additional defendants 7 to 9, the appellants herein. 6. By the time, the matter came up for a trial, the Apex Court judgment in **Varghese** case ( _supra_ ) was delivered. The trial court, following the judgment in **Varghese** case ( _supra_ ), decreed the suit. R.F.A.No.187/2022 -:7:- 7. In this appeal, the appellants fully knowing well that **Varghese** case ( _supra_ ) judgment would stare at them, raised the following argument: i) The Sub Court, Muvattupuzha, has no jurisdiction to entertain the suit involving a dispute relating to Church. According to learned senior counsel, Sri.K.Ramkumar, appearing for the appellants, such suit will have to be tried exclusively by a designated special court for the church dispute by the order of the Government of Kerala dated 30.06.1976. This designated court is a Special Court at Ernakulam. The learned counsel also relied on the order of the Apex Court in SLP No.16579/2013. ii) It was further argued that the Sub Court has no jurisdiction to grant leave in a suit coming under Section 92 of the Civil Procedure Code. The leave can be granted only by the Principal Civil R.F.A.No.187/2022 -:8:- Court in the District. iii) The learned senior counsel further pointed out the declaration sought is not maintainable. iv) Next argument was that the Settlement Deed and the lease deed have been declared as null and void without producing the original of such deeds. 7. In regard to the jurisdiction of the court, the Sub Court to entertain Church dispute, it is to be noted that the Government on 30.6.1976 issued the following order: “ _The Registrar of the High Court has recommended that one Additional Sessions Court may be established at Ernakulam exclusively for the trial of cases connected with Malankara Church disputes now pending in various courts of the state._ _Government accept the recommendation and are pleased to accord sanction for establishing a special court at Ernakulam with the following staff exclusively for trial of cases concerning Malankara Church disputes till the end of February, 1977._ _Additional Dist. & Sessions Judge 1 on Rs.1400/- 1900_ R.F.A.No.187/2022 -:9:- _U.D.Clerk 1 on Rs.275/- 525 L.D.Clerks 2 on Rs.230/-395 Stenographer 1 on Rs.240/- 540 Peons 3 on Rs.196/- 265_ _The expenditure will be met from the contingency fund initially to be recouped later by moving for a supplementary grant.”_ 8. The conferring exclusive jurisdiction as above will not take away, the jurisdiction otherwise vested with the civil court to entertain a civil dispute. The order clearly shows that a special court was constituted to try the cases exclusively by that court. The order does not indicate that the jurisdiction of other civil court is taken away which otherwise exists with such civil court. 9. The learned senior counsel appearing for the contesting respondents, who were the plaintiffs, placed reliance on the judgment of this Court in **Varkey v. Issac Nedivelil Puthenpura** **[2019 (3) KLT 132]** to defend that the civil court ## R.F.A.No.187/2022 -:10:- other than the special court has jurisdiction to try church dispute. 10. The constitution of the special court exclusively means that the court can only try such enumerated cases for which it has been constituted. That will not divest the jurisdiction of the other civil court which has jurisdiction in accordance with law. The constitution of the special court is only for convenience taking note of the large number of cases relating to church dispute. That court's jurisdiction is limited by allowing it to consider exclusively church disputes. The judgment of the Apex Court relied on by the learned senior counsel, Sri.Ramkumar only refers to the jurisdiction of the special court to try such disputes and no law has been laid down in that judgment. We, therefore, overrule this objection. 11. Next objection is the jurisdiction of the Sub Court to entertain the suit coming under ## R.F.A.No.187/2022 -:11:- Section 92 of the Civil Procedure Code (for short, 'CPC'). The Government of Kerala by virtue of the power conferred upon them under Section 92 of CPC, notified that the Sub Court's in Kerala has power and jurisdiction to try and dispose of the cases under Section 92 of CPC. The notification reads thus: _“(i)In exercise of the powers conferred by Section 2 of the Religious endowment Act, 1863 (Central Act XX of 1863), the Government of Kerala, hereby empower the Courts of Subordinate Judges of Malabar District referred to in sub-section (2) of Section 5 of the States Reorganization Act 1956 (Act 37 of 1956) within the limit of their respective jurisdiction to try and dispose of cases under the Religious Endowment Act, 1863._ _(ii). In exercise of the powers conferred by section of the Code of Civil Procedure (Act V of 1908) Government of Kerala, hereby empower the court Subordinate Judges of Kerala, within the limits their respective jurisdiction, to try and dispose cases under Section 92 of the Code of Civil Procedure._ R.F.A.No.187/2022 -:12:- 12. In a recent reference order passed by us on 10.1.2023 in O.P.(C) No.430/2022 and connected cases, we also held that the Sub Court also has power to grant leave under Section 92 of CPC. We, while answering the reference, opined as follows: “As per _notification in the year 1966, the Sub Court has been conferred with the power to try and dispose the cases coming under Section 92 of the CPC. This is the jurisdictional aspects of the Sub Court. The purpose of obtaining leave incorporated in the CPC in the year 1977 is as an institutional formality to be complied in a suit in the nature referred under Section 92 of the CPC. That being an institutional formality, it has to be complied by the litigant and, it has nothing to do with the determination of the jurisdiction of the Court to try and dispose of the cases under Section 92 of the CPC.”_ We, therefore, overrule this objection also. 13. The relief of declaration now sought by the plaintiffs has become redundant in the light of the Apex Court judgment in **Varghese** case R.F.A.No.187/2022 -:13:- ( _supra_ ). By declaration of law in **Varghese** case ( _supra_ ) all the churches under the Malankara Syrian Church will have to be administered in accordance with the 1934 Constitution. The contesting defendants or the fourth defendant have no case that the fourth defendant has been appointed as the Vicar in accordance with the 1934 Constitution. 14. The rival claim itself is related to the administration and management of the church. In view of the rival claim, there exists a threat to the management and administration of the church in accordance with the 1934 Constitution. Therefore, the court below was justified in granting injunction. 15. Pending suit, the plaintiffs amended the prayers declaring that the Settlement Deed No.806/2019 of SRO, Pothanicad and the Lease Agreement No.1451/2019 of SRO, Pothanicad are void and not binding on the first defendant church. ## R.F.A.No.187/2022 -:14:- These deeds have been executed by 12[th] defendant. The Settlement Deed No.806/2019 was executed in favour of St.John's Jacobite Syrian Christian Association, Pulinthanam, conveying the right of the church property in favour of the Association. As per the lease deed No.1451/2019, the property of the first defendant church was also leased in favour of St.John's Jacobite Syrian Christian Association. Neither the fourth defendant nor the 12[th] defendant has any right over the property. They are not representing the church as authorized under the 1934 Constitution. These documents are void _ab initio_ and have to be simply ignored. The civil court has rightly granted the right of declaration as it would create a cloud on the title of the first defendant church. This is not a case where cancellation of the deeds has been sought. Since the documents were executed by a non-authorized person, declaratory reliefs are sufficient to remove the cloud on such title. R.F.A.No.187/2022 -:15:- The decree and judgment of the court below warrant no interference. Therefore, the Appeal fails and it is dismissed. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** **ln**