RFA No.546/2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **RFA.No.546 OF 2019** **AGAINST THE JUDGMENT DATED 31.10.2019 IN OS 10/2015 OF** **I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/DEFENDANTS 1,4 AND 5:** - **1 FR.RAJU MARKOSE,AGED 55 YEARS, PUTHUSSERIYIL HOUSE,OLIMKADAVU POST, MANGALAM DAM VILLAGE,ALATHUR TALUK.** - **2 V.J. BOBY,AGED 60 YEARS,S/O.JOSEPH, VATHYADAN HOUSE,URAVATHUR, KORENCHIRA P.O., ALATHUR TALUK.** - **3 K.V. GHEEVARGHESE,AGED 61 YEARS, S/O.VARKEY,KANAKKANMAVUDI HOUSE, VALKULAMBU,KORENCHIRA P.O.,ALATHUR TALUK.** - **BY ADV. SRI.P.V.ELIAS** ## **RESPONDENTS/PETITIONERS AND THIRD RESPONDENT:** - **1 M.V.PAULOSE,AGED 49 YEARS, S/O.VARKEY,MAMBILLY HOUSE, KORANCHIRA P.O.,KIZHAKKANCHERY VILLAGE, ALATHUR TALUK PIN 678 684.** - **2 K.K. PAULOSE,AGED 76 YEARS, S/O.KURIAKOSE,KALATHIKUDY HOUSE, KANAKKANTHURUTHY P.O.,VILANGOOR VADAKKANCHERY, ALATHUR TALUK.** - **3 REV. FR. MATHAI THOZHUTHUNGAL,AGED 60 YEARS, S/O.KURIAKOSE,THOZHUTHUNGAL HOUSE, KAYARADI P.O.,PALAKKAD DISTRICT.** - **4 KURIAKOSE, S/O. GEORGE, AGED 47 YEARS, CHALAKKATTUKUZHI HOUSE, NOW HIMSELF CALLED KURIAKOSE MOR EUSEPHIOSE,YACOBAYA SURIYANI CHRISTANI SABA,BETHEL BISHOP HOUSE, PATTIKKAD P.O., THRISSUR DISTRICT.** RFA No.546/2019 2 **5 THOMAS MAR DIONYSIUS,AGED 91 YEARS, S/O. MATHU, STYLING HIMSELF AS BASELIOUS THOMAS I, RESIDING AT PATRIARCHAL CENTRE,PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT 682 308.** **R1-R3 BY ADV. SRI.K.K.APPU R1-R3 BY ADV. SRI.B.G.BHASKAR** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA No.546/2019 3 ## **JUDGMENT** This appeal has been preferred by defendants 1, 4 and 5 in O.S. No. 10/2015, on the files of the church, which was a suit filed by respondents 1, 2 and 3 herein seeking a declaration that the St. Thomas Orthodox Church, Valkulambu, being a constituent Church of Malankara Orthodox Syrian Church ('Malankara Church' for short) is liable to be governed only under the 1934 Constitution; and that the defendants, namely, the appellants herein and others, be restrained by a perpetual injunction from entering into the said Church and interfering with its administration, since they owe allegiance to the 2002 Constitution of a breakaway group known as the Yacobaya Suriyani Christiani Sabha. 2. The appellants, being the defendants in the suit, filed a written statement admitting that the Church in question is a constituent of the Malankara Orthodox Syrian Church, but asserting that there are two factions in it, namely, the “Patriarch faction” and the “Catholicos faction”. They contended very vehemently that the RFA No.546/2019 4 Church was consecrated in the year 1970, accepting the spiritual supremacy of the Patriarch of Antioch and that they have accepted for themselves a constitution in the year 2002, which they say is the only one that can govern this Church. They further say that since the appellants do not accept the spiritual supremacy of the Patriarch of Antioch, they are not entitled to any relief in the suit and therefore, that the decree of perpetual injunction ought not to have been granted by the court below. 3. The learned counsel for the parties made submissions in tune with the pleadings of their respective clients before the court below. I have carefully assessed them and have also examined the materials available. 4. Before I answer the specific contentions of the parties to the extent to which it is necessary, I must record that the issues relating to the management and control of the constituent Churches under the Malankara Church has been now declared emphatically and conclusively by the Hon'ble Supreme Court in **Most. Rev. P.M.A. Metropolitan and others etc. v. Moran Mar** RFA No.546/2019 5 **Marthoma and another etc.** [(AIR 1995 SC (2001)] and **K.S. Varghese and others v. St.Perters and Paul's Syrian Orthodox and others** [2017(3) KLT 261], as per which it is now inevitable that Churches can only be governed under the 1934 Constitution. Obviously therefore, any prayer or any defence contrary to the above declaration is now untenable, going by Article 142 of the Constitution of India. That apart, subsequently in **Baby C.J. and others v. Fr. Jiju Varghese** [2019 (2) KHC 692], the Hon'ble Supreme Court has also directed that all courts in India must adhere with the declarations made by it and that no suits or proceedings contrary to it may be entertained. 5. In the afore background, when I consider the dialectical contentions of the parties, it is without doubt that the Church was in existence prior to 2002, it being conceded by the appellants that it was consecrated in the year 1970. As is clear from the facts noticed by the Hon'ble Supreme Court in the aforesaid judgments, the split in the Malankara Church happened only in the year RFA No.546/2019 6 2002, when a different Sabha, by name “Yakobaya Suriyani Christiani Sabha” was created, adopting a Constitution, which is popularly known as the 2002 Constitution. This Constitution was considered by the Hon'ble Supreme Court in great detail in **K.S.Varghese** (supra) and it was declared in paragraph 184 (xxiv) of the said judgment as under: “(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.” 6. Ineluctably, therefore, the Hon'ble Supreme Court having thus declared that a constituent Church of the Malankara Church can be administered and controlled only under the 1934 Constitution, any contrary contention would become incapable of acceptance; and cannot, therefore, obtain any support from this Court. 7. That said, the allegation now impelled by the learned counsel for the appellant, Sri. P.V. Alias, is not that RFA No.546/2019 7 the Church is not a constituent of the Malankara Church or that it is not liable to be governed under the 1934 Constitution, but that, the respondents do not owe allegiance to the said constitution, since they do not accept the supremacy of the Patriarch of Antioch. The thrust of his submissions is that the respondents/plaintiffs are, therefore, not entitled to a decree as has now been granted by the court below because, unless they are able to show and demonstrate that they accept the supremacy of the Patriarch of Antioch, no relief could have been granted to them, particularly when the suit has been laid on file after obtaining the leave of the court under Section 92 of the CPC. 8. When I consider the afore contentions, it is beyond doubt that the relief sought for by the plaintiffs in the suit was only for an injunction restraining the appellants and others, who are arrayed as the defendants, from interfering with the management and control of the Church in question, since they owe allegiance to the 2002 Constitution without accepting the 1934 constitution. The RFA No.546/2019 8 Court below has only considered this aspect, even though various other issues were raised, including in a counter claim attempted by the defendants; and has, thus decreed the suit in the following manner: “In the result, the suit is decreed with costs and the defendants and others belonging to the Yacobaya Suriyani Christiani Sabha owing allegiance to its 2002 Constitution or anybody having any connection with the same are restrained by a perpetual injunction from entering into the Valkulambu St. Thomas Orthodox Church and its properties, conducting any worship therein, obstructing the duties of the third plaintiff and his successors and from interfering with the administration of the church under the 1934 Constitution.” 9. No one has a case that the afore decree of the Court below is in any manner contrary to the declarations of law by the Hon'ble Supreme Court in **P.M.A. Metropolitan** (supra) or **K.S. Varghese** (supra). Therefore, I cannot find anything wrong in the decree, since it only declares that the Church in question will have to be governed by the 1934 Constitution and not by the 2002 Constitution. Obviously therefore, if the RFA No.546/2019 9 appellants have a case that the respondents/plaintiffs do not owe allegiance to the Patriarch of Antioch as per the 1934 Constitution in any manner, they certainly may obtain a cause of action, but which is separate and distinct from that is impelled in the suit in question. 10. In the afore circumstances, I have no other option, but to dismiss the appeal at the threshold. 11. However, in the nature of the circumstances noticed, I deem it appropriate not to make any order as to costs and to direct the parties to suffer their respective costs. It is so ordered. Sd/- **DEVAN RAMACHANDRAN JUDGE** ncd