RP.No.838/2013 in R.F.A. No.655/2011 & RP.No.883/2013 in R.F.A. No.589/2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936 RP.No. 838 of 2013 () IN RFA.655/2011 --------------------------------------- REVIEW PETITIONER(S)/APPELLANTS IN RFA NO.655 OF 2011:-: -------------------------------------------------- 1. MATHEW YOHANNAN, AGED 77 YEARS SON OF MATHEW VALLIKATHIL, AIKKARANAD NORTH VILLAGE MANGATTOOR, ERNAKULAM DISTRICT. 2. K.M.GEORGE, AGED 64 YEARS SON OF MATHAI, KODIYATTU, MAZHUVANNOOR VILLAGE EZHUPRAM, SOUTH MAZHUVANNOOR, ERNAKULAM DISTRICT. BY ADV. SRI.P.J.PHILIP RESPONDENT(S)/RESPONDENTS/RESPONDENTS-PLAINTIFFS 1 TO 3 AND DEFENDANTS 1 TO 12, 14 AND 16 AND ADDITIONAL 18TH RESPONDENT:- --------------------------------------------------------------------- 1. K.S.VARGHESE, S/O.SCARIA, KAVANACHOTTIL HOUSE, PALACKAMATTOM KARA IKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 2. V.M.GEORGE, S/O.MATHAI, VEDANKULANGARA HOUSE, MANGATTOOR KARA AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK. 3. C.K.THAMPI, , AGED 48 YEARS S/O.KURIAKOSE, CHUNDATHADATHIL HOUSE, VADAYAMPADI KARA EIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 4. ST.PETER'S AND ST.PAUL'S SYRIAN ORTHODIX CHURCH, KOLENCHERY REPRESENTED BY ITS VICAR REV. FR. VARGHESE EDUMARY EDUMARY HOUSE, [AS MENTIONED IN THE PLAINT] KOLENCHERRY KARA, AIKKARANADU SOUTH VILLAGE KUNNATHUNADU TALUK - 682 311. 5. FR.VARGHESE EDUMARY, , AGED 60 YEARS S/O.PAILY, VICAR ST.PETER'S AND ST.PAUL'S SYRIAN ORTHODOX CHURCH KOLENCHERRY KARA, EIKKARANADU SOUTH VILLAGE KUNNATHUNADU TALUK - 682 311 [DIED] 6. FR.VR.JACOB KURIAN, S/O.KURIAN, PRIEST ST.PETER'S AND ST.PAUL'S SYRIAN ORTHODOX CHURCH KOLENCHERRY KARA, AIKKARANADU, SOUTH VILLAGE KUNNATHUNADU TALUK - 682 311. 7. P.M.GOERGE, S/O.LATE SRI.MATHULLA, ELOOR, PLANNIKUZHIYIL HOUSE ELAMKULAM KARA, AIKKARANADU, SOUTH VILLAGE (DIED) 8. K.A.THAMPI, S/O.ABRAHAM, KUNNATHUKULATHUKATTIL HOUSE KINGINIMATTOM KARA AIKKARANADU SOUTH VILLAGE - 682 311. 9. T.V.PURAVATHU, S/O.VARKEY, THAMARACHALIL HOUSE, ELAMKUMAL KARA AIKARANADU SOUTH VILLAGE KUNNATHUNADU TALUK - 682 311. 10. C.V.PAILY,, AGED 100 YEARS SON OF VARKEY, KOCHIPUTHENPURAYIL, KARUGAPPALLY KARA EIKKARANAD SOUTH VILLAGE, KUNNATH TALUK [DIED] 11. P.P.THOMAS, POOKKOLAYIL HOUSE, KOLENCHERY KARA AIKKARNADU SOUTH VILLAGE, KUNNATHUNADU TALUK KERALA - 682 311. 12. A.V.PATHROSE, S/O.VARKEY, ATHIKKUZHIL HOUE, MANGATTOOR KARA AIKKARNADU NORTH VILLAGE, KUNNATHUNADU TALUK KERALA - 682 311. 13. THOMAS.M.ALIAS, S/O.ALIAS, MUNDAYIL HOUE, PERINGOLA KARA AIKKARNADU-NORTH VILLAGE, KOLENCHERRY KUNNATHUNADU TALUK, KERALA - 682 311. 14. JOGI GEORGE, S/O.C.M.GEORGE, CHOLATTU HOUSE PUTHENCRUZ KARA AIKKARANADU NORTH VILLAGE, KOLENCHERRY KUNNATHUNADU TALUK - 682 311, KERALA - 682 311. 15. BABU PAUL, S/O.LATE P.M.PAILY, PERUMPILLIL HOUSE, ELAMKULAM KARA AIKKARANADU SOUTH VILLAGE, KOLENCHERRY P.O. KUNNATHUNADU TALUK, KERALA - 682 311. 16. SUNIL MATHEW, S/O.MATHEW, NJARUTHOZHIYIL, ELAMKULAM KARA KOLENCHERRY - 682 311, KERALA. 17. PAUL P.KUNNATH, S/O.POULOSE, KUNNATH, PERINGODE AIKKARANDU NORTH, KOLENCHERRY - 682 311, KERALA. 18. REV. FR. ALIAS KAPPUMKUZHIYIL,, AGED 34 YEARS S/O.K.V.SCARIA, KAPPUMKUZHIYIL HOUSE, MUMUGHAMKARA MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, KERALA. R BY SRI.P.MARTIN JOSE R BY SRI.SAJI VARGHESE R BY SRI.SAJU.S.A R BY SRI.S.VINOD BHAT THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 7-04-2014, ALONG WITH RP. 883/2013, THE COURT ON 11/4/2014 PASSED THE FOLLOWING: APPENDIX IN R.P.838/2014 ANNEXURE A-TRUE COPY OF THE PLAINT IN OS.NO.18/2005 OF FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM. **==> picture [91 x 8] intentionally omitted <==** P.S. TO JUDGE ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.P.No.838/2013 in R.F.A. No.655/2011 & R.P.No.883/2013 in R.F.A. No.589/2011** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 11TH DAY OF APRIL, 2014** ## **O R D E R** ## Ramachandran Nair, J. These two review petitions have been filed by the respective review petitioners seeking to review the common judgment in R.F.A. Nos.655/2011 and 589/2011. 2. We heard learned Senior Counsel for the review petitioners in R.P.No.883/2013, Shri N. Sukumaran, Shri K. Ramakumar, learned Senior Counsel and Shri P.J. Philip appearing for the review petitioners in R.P.No.838/2013 and learned Senior Counsel Shri S. Sreekumar appearing for the contesting respondents in both the review petitions. 3. We propose to dispose of the review petitions together. First we will take R.P.No.883/2013. 4. The petitioners therein are the appellants in R.F.A. No.589/2011 and they are the plaintiffs in the suit also. What is highlighted in the review petition is that the plea of the petitioners that there is a clear admission in RP Nos.838 & 883/2013 -2- the pleading in the written statement filed by the contesting respondents that the first respondent Church was being administered as per Ext.A1 has not been adverted to. In the grounds of the review petition the relevant paragraphs of the plaint as well as the answers given in the written statement have been extracted. Shri N. Sukumaran, learned Senior Counsel therefore submitted that this Court's finding in paragraph 59 of the judgment is an error apparent on the face of the records. Learned Senior Counsel further submitted that Ext.A1 Udambadi was in force till 1959 and the defendants' evidence , viz. Ext.B2(a) which is only a photo copy, cannot be accepted and therefore Ext.A1 continued to be in force. 5. The contention of the petitioners is that Ext.A1 Udambadi of the year 1913 A.D. was all along in force upto the date on which the present disputes arose in the Church in 1980. It is submitted by learned Senior Counsel Shri S. Sreekumar that there is no such admission in the written statement filed by respondents 1, 3 and 9. It is submitted by the learned Senior Counsel that a reading of the relevant paragraphs of the written statement quoted in the memorandum of review petitions will show that there is no such admission. It is also submitted by the learned Senior RP Nos.838 & 883/2013 -3- Counsel that this Court has considered all the relevant pleadings and evidence oral and documentary, while entering findings on point No.1. 6. We are of the view that there is no apparent error in the judgment as contended by the review petitioners. From paragraph 4 onwards we have quoted the pleadings of both sides and from paragraph 23 onwards we have referred to the arguments raised on behalf of the review petitioners. This is a case where we have referred to the pleadings of both parties, evidence oral and documentary and have considered the various arguments on either side while entering upon our conclusions in the matter. We are not extracting the relevant paragraphs of the judgment for fear of repetition. Point No.1 has been considered from paragraph 43 onwards. We have rested upon our conclusions on various aspects projected by the parties as well as the evidence adduced in the matter and the dictum laid down in certain previous judgments which have been explained and elaborated in detail. Accordingly, findings have been rendered in paragraphs 54, 55 and 59. 7. Even though it was vehemently argued by learned Senior Counsel Shri N. Sukumaran about the alleged admissions in the written statement of RP Nos.838 & 883/2013 -4- the contesting respondents, a reference to the contentions in the written statement does not reveal that there is an admission on the part of the said respondents that the administration of the Parish Church was in terms of Ext.A1 till 1959 or thereafter till 1980. Apart from denying the averments in the plaint, it is the contention of the said parties that the Church was being administered under the 1934 Constitution and there is, therefore, no necessity to settle a scheme. In that view of the matter, we find no apparent error in the judgment. 8. In R.P.No.838/2013 learned Senior Counsel Shri K. Ramakumar submitted that this Court in the common judgment, has relied upon the minority judgment of the Honourale Justice R.M. Sahai and has rendered certain findings. Our attention was invited to paragraph 79 of our judgment. It is submitted that the view taken by this Court on various aspects in that regard cannot be said to be correct. 9. In the memorandum of review petition the findings by this Court from paragraph 76 onwards have been referred to and it is contended that the conclusions are contrary to the specific directions of the Apex Court in **P.M.A. Metropolitan's case** (AIR 1996 SC 3121) and **P.M.A.** RP Nos.838 & 883/2013 -5- **Metropolitan's case** (AIR 1997 SC 1034). Learned counsel Shri P.J. Philip also submitted that this Court's view about the findings in the judgment of the Division Bench in A.S. No.331/1980 and the observation that the Apex Court accepted the judgment in **P.M.A. Metropolitan's case (** AIR 1995 SC 2001) is also a clear errore apparent on the face of the records. Emphasis was made on the alleged non consideration of the decree passed by the Apex Court as per **P.M.A. Metropolitan's case** (AIR 1996 SC 3121). 10. Learned Senior Counsel Shri S. Sreekumar submitted that the said argument is unsustainable for many reasons. All the previous judgments and decrees drawn after the judgment in **P.M.A. Metropolitan's case** (supra) were placed before this Court which have been referred to in the judgment itself. Learned Senior Counsel invited our attention to internal page 26 of the judgment rendered by us wherein reference has been made to the contentions based on **P.M.A. Metropolitan's case** (AIR 1996 SC 3121) and **P.M.A. Metropolitan's case** (AIR 1997 SC 1034) and therefore it is explained that the grounds stated in the review petition have no legs to stand. RP Nos.838 & 883/2013 -6- 11. We are of the view that the contention raised by the review petitioners that the finding rendered by this Court goes directly against the decree passed as is clear from the two judgments, is not correct. First of all, it is not correct to say that these aspects were not placed before this Court. Internal page 26 of our judgment has already been referred to and in paragraph 37 while referring to the arguments of the learned Senior Counsel for the petitioners herein, it has been noted that reference was made to the decree passed by the Hon'ble Supreme Court. The discussions made by us from paragraph 77 onwards of the judgment are in the light of the various arguments made by the learned Senior Counsel on either side. What is referred to by us in paragraph 78 is the findings rendered by the Honourable Justice Sahai in paragraph 69 of the judgment in **P.M.A. Metropolitan's case** (AIR 1995 SC 2001) and a reading of the last portion of para 69 will make the position clear. In para 88 we have held, after a detailed discussion that there is no conflict with the view taken in the judgment of Honourable Justice Sahai and the Honourble Justice Jeevan Reddy on the point discussed, i.e. regarding impleadment of individual Parish Churches. These findings cannot be termed as interpreting the decree in a different RP Nos.838 & 883/2013 -7- manner. While concluding so, we have referred to various findings in the two separate judgments including paragraphs 80 and 141. In para 99 of the judgment, we have referred to the orders passed by the Apex Court in **P.M.A. Metropolitan's case** (AIR 1996 SC 3141) and **P.M.A. Metropolitan's case** (AIR 1997 SC 1034) while considering various arguments concerning the ambit of the decree passed. Therefore, it is not as if, as projected by the review petitioners, various details were not considered by us while rendering the judgment. 12. In the written submissions made by the review petitioners in R.P.No.838/2013, various decisions of the Apex Court, viz. **B.C.C.I v. Netaji Cricket Club** {(2005) 4 SCC 741}, **Moran Mar Basselios Chatholicos v. Most Rev. Mar Poulose Athanasius** (AIR 1954 SC 526), **S. Nataraj & others v. State of Karnataka** (1993 Supp. (4) SCC 595), **Shivdeo Singh and others v. State of Punjab and others** (AIR 1963 SC 1909), **M.M. Thomas v. State of Kerala and another** (AIR 2000 SC 540) and **S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by Lrs. And others** (AIR 1994 SC 853) have been relied on. Some other decisions also have been relied upon to contend for the position that RP Nos.838 & 883/2013 -8- withholding of a vital document can be a matter for consideration while exercising the review jurisdiction. Learned counsel Shri P.J. Philip referred to the documents produced along with the written submissions also in that regard. For the reasons already stated by us, we are not accepting the contentions of the learned counsel for the review petitioners. We find no merit in the grounds raised in this review petition also. 13. Learned Senior Counsel Shri S. Sreekumar invited our attention to the decision of the Apex Court in {(2008) 8 SCC 612) to point out the scope of the review petition. We extract para 22 of the said judgment hereunder: “The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 C.P.C. Or Section 22(3)(f) of the Act. To put it differently any order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any RP Nos.838 & 883/2013 -9- case, while exercising the power of review the court/tribunal concerned cannot sit in appeal over is judgment/decision.” In the light of the above, it is clear that if an error is not self evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 C.P.C. It is well settled that an erroneous view on a point of fact or law cannot be corrected while exercising the power of review. This Court cannot sit in appeal over the judgment. We are of the view that there cannot be a rehearing of the matter under the guise of exercise of power of review also. We find no reason to entertain the review petitions and accordingly they are dismissed. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**