Saju alias Sabu and Varghese v. St. Mary's Church Umminikkunnu, Pothanickadu Parish, Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941 ``` ## **`AS.No.294 OF 2002(E)`** ``` AGAINST THE ORDER/JUDGMENT IN OS 40/2000 DATED 25-06-2002 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`APPELLANTS/PLAINTIFFS:`** - **`1 SAJU ALIAS SABU, S/O VARGHESE,KAKKATHOTTATHIL HOUSE, POTHANICKADU DESOM, POTHANICKADU VILLAGE, KOTHAMANGALAM TALUK.`** - **`2 VARGHESE, S/O.KURIAKOSE,VAKKOTTIL HOUSE, POTHANICKADU DESOM,, POTHANICKADU VILLAGE, KOTHAMANGALAM TALUK.`** - **`BY ADVS. SRI.N.SUKUMARAN SRI.SAJI VARGHESE KAKKATHOTTATHIL SRI.LATHEESH SEBASTIAN SRI.S.SHYAM`** ## **`RESPONDENTS/DEFENDANTS:`** - **`1 ST.MARY'S CHURCH UMMINIKKUNNU,POTHANICKADU, REPRESENTED BY ITS KAIKARS - DEFENDANTS 2 AND 3.`** - `**` **`2 E.M.CHACKO(DIED) S/O.MATHAI,ERUMBAYIL HOUSE, POTHANICKADU DESOM, DO., VILLAGE, KOTHAMANGALAM TALUK.`** - **`3 REV. FR. C.K.ISSAC S/O.KURIAKOSE,RESIDING AT CHENAYAPPILLIL, PARAMBANCHERRI KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK.`** - **`4 BIJU,S/O P.P.PAILY, AGED 45, PADINJATTIL HOUSE,POTHANIKADU,POTHANICKADU P.O,KOTHAMANGALAM TALUK,ERNAMKULAM DISTRICT-686691`** - ``` 5P.P.GEORGE,S/O PAILY, AGED 58, PALAKKATTUPUTHANPURA,DO.DO.DO. ``` - **`6 REV.FR.BINOY VARGHESE,S/O VARGHESE, AGED 44, PARIYATH HOUSE,MATTAKKUZHY P.O,THIRUVANIYOOR,ERNAMKULAM DISTRICT-682 308`** ``` (*ADDL R4 TO R6 IMPLEADED VIDE ORDER DT 10/07/14 IN IA 2351/2013) ``` ``` (**IT IS RECORDED THAT R2 DIED, VIDE JUDGMENT DATED 28.11.2019) ``` ``` R1 & R3 BY ADV. SRI.BIJU ABRAHAM R4 TO R6 BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR ``` ``` THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28.10.2019, THE COURT ON 28.11.2019 DELIVERED THE FOLLOWING: ``` ``` AS.No.294 OF 2002(E) ``` ``` 3 ``` C.R. ## JUDGMENT Dated this the 28[th] day of November, 2019 The appeal is preferred against the decree and judgment dated 25.06.2002 of the 1[st] Additional District Court, Ernakulam in O.S. No.40/2000. The plaintiffs in the suit are the appellants and defendants are the respondents. The 2[nd] respondent died during the pendency of the appeal. The 3[rd] respondent was substituted by new Vicar. Therefore, legal heirs of 2[nd] respondent and the new Vicar were brought on record as additional respondents 4 to 6 vide order dated 10.07.2014 in I.A. No.2351/2013. The Original Suit was filed seeking reliefs as follows: “A. Removal of 2[nd] defendant from the office as Trustee (Kaikar) of the Church and to put the Church , its institutions and properties and all assets in the new Kaikars and Managing Committee elected by holding elections after preparing up to date voters list based on the basis of the one prepared by the Advocate Commissioner in O.S.No.18 of 1977 of the Ist Addl. District Court, Ernakulam. B. Ordering the 2[nd] defendant to render accounts of the income and expenses of the Church from the date of his assuming the Management of the Church, pursuant to the ``` AS.No.294 OF 2002(E) ``` ``` 4 ``` decree in O.S.No.18 of 1977 of the Ist Additional District Court, Ernakulam. C. Restraining the 2[nd] defendant from alienating any of the properties of the Church or committing waste or damage to such properties or making any change to their existing conditions: D. Cost of the Plaintiff; E. Such other relief or reliefs interim or otherwise which is sought for and this Honourable Court deems just and necessary.” 2. The suit was dismissed by the judgment under challenge and the aggrieved plaintiffs are now before this Court in the appeal suit on hand. Sri.N. Sukumaran, the learned Senior Counsel has contended that Ext.A7, a common judgment was passed in O.S. No.4/1986, 206/1977 and 20/1994 on 29.07.1996 by the 1[st] Additional District Judge, Ernakulam (Special Court for Malankara Church cases) against the patriarch faction to which the plaintiffs belong and on dismissal of the appeal preferred from Ext.A7 by this Court and a Special Leave Petition filed against, by the Apex Court, it has become final. During the pendency of Ext.A7, Church was closed at the intervention of Executive Magistrate. Consequent to the closure, two factions had made alternative ``` AS.No.294 OF 2002(E) ``` ``` 5 ``` arrangements for meeting their religious needs. During the pendency of suits which led to Ext.A7 judgment, Church was made available for the two factions to conduct separate masses in turn. An Advocate Commissioner was appointed to conduct election of the administrative committee, to manage the assets of the Church. A voters list was prepared by the Advocate Commissioner as Ext.A5 and an election was conducted on its basis. The elected committee was in administration till the 2[nd] defendant and others assumed charge of the church on the strength of Ext.A7 judgment. Defendants 2 and 3 and others failed to administer the affairs of the Church or conduct valid elections on the expiry of their term of one year and the said circumstances necessitated the filing of the present suit seeking the reliefs as aforestated. 3. Before the trial court the plaintiffs and the defendants tendered oral evidence respectively as PW1 and DW1. Exts.A1 to A12 and Exts.B1 to B13 were marked. The trial court failed to appreciate the evidence in its proper perspective and thereby issues 2, 3 and 4 among the six issues raised were answered against the plaintiffs and that culminated in the ``` AS.No.294 OF 2002(E) ``` ``` 6 ``` dismissal of the suit. According to the learned counsel, the defendants fail to raise a plea that the suit was bad for nonjoinder of necessary parties to the suit. According to him, in the said background, the trial court ought not to have raised non-joinder of necessary parties as an issue and dismissed the suit for that reason. It is further contended by the learned counsel that the trial court has proceeded on the wrong assumption that two factions namely Catholic and Patriarch, were there and the 3[rd] defendant and Rev.Father C.P. George were holding charge of the Vicars of the rival factions. In effect there were no such factions in the Church. The plaintiffs have accepted the 3[rd] defendant and the 1934 Constitution. The trial court found that a Trust was there and the administration of the Trust was not in the hands of persons properly elected as per 1934 Constitution. According to plaintiffs, the suit ought not to have been dismissed by the trial court. According to them, Ext.B9 document ought not to have been relied on by the trial judge to state that the plaintiffs' faction as it existed then was separated from the Church to form another Church. The erstwhile plaintiffs' ``` AS.No.294 OF 2002(E) ``` ``` 7 ``` faction were not accepted by the 3[rd] defendant and his faction, as parishioners. The factional metropolitan is also reluctant to recognize the plaintiffs' faction as parishioners of the Church. According to him, in the said background that the intervention of the court is sought for resorting to conduct an election based on Voter's list prepared by the Advocate Commissioner in O.S. No.18/1977, in a democratic way for the management of the Church and its assets. Raising contentions of the above nature, the learned Senior Counsel seeks for interference with the judgment under challenge to set aside the same. 4. Per contra, Sri.Biju Abraham, the learned counsel for the defendants has invited this Court's attention to the recitals in the plaint to contend that it cannot be gathered therefrom that the plaintiff is aggrieved by non-conduct of an election in accordance with the provisions dealing with election in 1934 Constitution. The counsel has also drawn the attention of this Court to relief 'A' to contend that the direction sought was to remove the 2[nd] defendant from the office as Trustee of the Church and to put the administration ``` AS.No.294 OF 2002(E) ``` ``` 8 ``` to a new Kaikar and new managing committee elected after holding elections on the basis of voters list prepared in tune with the one prepared by the Advocate Commissioner in O.S. No.18/1977 of 1[st] Additional District Court, Ernakulam. It is contended by the learned counsel that the new Vicars and the managing committee who are to replace the 2[nd] defendant are not proposed to be elected based on the provisions of 1934 Constitution, but in tune with the voters list prepared by the Advocate Commissioner in O.S. No.18/1977 of 1[st] Additional District Court, Ernakulam. The learned counsel has also invited this Court's attention to the common judgment dated 29.07.1996 in O.S. No.4/1986, 206/1977 and 20/1994 to contend that the 3[rd] defendant is the duly appointed Vicar of Pothanicad St.Mary's Church, which is liable to be administered by the Vicar and the Trustees elected in accordance with 1934 Constitution. According to him, in view of the dictum in Most. Rev. P.M.A. Metropolitan & Others v. Moran Mar Marthoma & Another (AIR 1995 SC 2001) and order dated 25.03.1996 passed subsequently, the 1934 Constitution was upheld as supreme and governing ``` AS.No.294 OF 2002(E) ``` ``` 9 ``` the affairs of the Parish Churches and shall prevail. The learned counsel for the defendants has contended that the issue involved no longer survives as the judgment of the Apex Court in Varghese v. St.Peter's & Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)] in Civil Appeal Nos. 7115 and 7116 of 2019, arising from SLP Nos.20661 and 20662 of 2019, settled the same by holding that the Malankara Church, its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners have no right to take away and usurp the church itself or to create a new system of management contrary to 1934 Constitution. According to him, the Apex Court has also held that it was a trust created as Malankara Church that is supreme, for once a trust is always a trust. According to him, in view of the position settled as above, none of the reliefs sought in the suit on hand are liable to be granted. It is contended by the learned counsel that the trial court has rightly declined to grant the reliefs which were stated supra and the judgment dismissing the suit no longer calls for any interference. The appeal is only to be dismissed. ``` AS.No.294 OF 2002(E) ``` ``` 10 ``` 5. Disputes were frequent in Malankara Church. At times there were peaceful situations. Likewise after a short period for which disputes have been set at rest, disputes in rival factions like Patriarch and Catholics re-appeared in the year 1972. At the relevant point of time, by order of the Sub Divisional Magistrate in the complaint filed as M.C. 12/1975 by the 3[rd] defendant in the case on hand as complainant, the Village Officer, Pothanicad was appointed as Receiver of the Church and its properties. Thereafter O.S. No.18/1977 was filed before the 1[st] Additional District Court, Ernakulam. An Advocate Commissioner was appointed for election of a committee of 12 administrators for management of the church, its institutions and properties. Since the 3[rd] defendant Vicar was not willing to offer prayers and return the key of the church to the Sub Divisional Magistrate by order dated 05.06.1985, the church was closed and the parties were prevented from conducting religious service in the church. The Receivership has done mismanagement and misappropriation. Accordingly, disciplinary action was initiated against the Receiver and his clerk. A meeting of the ``` AS.No.294 OF 2002(E) ``` ``` 11 ``` Parish Assembly was held on 17.03.1985 after due notice to the parishioners and plaintiffs 2 and 3 were elected as laystewards. On the basis of the Voters list prepared by the Advocate Commissioner, election was held with approval of the court on 31.05.1988. Administrators, 12 in numbers, were elected as per the election held as above and the Receiver was directed to handover charge to them. Accordingly since 31.05.1988, the elected administrators were in management of the church. One Mr.N.M. Varghese was elected as the manager of the School from among the 12 administrators elected, and he started functioning as such. He got approval as manager by DEO also. 6. O.S. No.18/77 was withdrawn on 30.03.1994. While dismissing the suit as withdrawn, the court has held that separate order will be passed regarding the discharge of the administrator, who held the post pursuant to election conducted on the basis of the voters' list prepared by the Advocate Commissioner. But, no order was passed. In the absence of any alternative arrangements made to administer the church, the administrator continued the administration. ``` AS.No.294 OF 2002(E) ``` ``` 12 ``` In the year 1995, the Apex Court has held in P.M.A. Metropolitan (supra) to the following effect : “In sum, we observe that the 1934 Constitution governs the affairs of the parish churches too in so far as it does.” 7. Following that the Apex Court had also passed an order on 25.03.1996, wherein it was observed that all appointments made on or after 01.01.1971 up to the date of judgment will continue as they are, until a new managing committee is elected and thereafter the managing committee can decide the legitimate incumbent. The defendants in O.S. No.4/1979 had gone to the extent of raising a contention that the church and its provisions are not bound by the directions in P.M.A. Metropolitan (supra) and order dated 25.03.1996 passed subsequently, since the church was not a party therein and were not heard on their contentions. The court found that O.S. No.4/1979 being filed as a representative suit under Order I Rule 8 CPC, in the event of common issues of concern of the rival factions of the church having been heard and settled in P.M.A. Metropolitan (supra), the contention of the defendants is untenable. The Court had repelled the said ``` AS.No.294 OF 2002(E) ``` ``` 13 ``` contention. The Apex Court had held in P.M.A. Metropolitan (supra) 'the only observation that can be made herein is that the 1934 Constitution shall govern and regulate the affairs of the parish churches too in so far as the said constitution provides for the same.' (Page 2069 para 141). 8. Prior to 01.01.1971 the 3[rd] defendant in the case on hand was appointed as the Vicar of the church by the Diocesan Metropolitan of Angamali Diocese. Therefore, by virtue of order of the Apex Court dated 25.03.1996, the 3[rd] defendant was the rightful Vicar of the 1[st] defendant Church and his appointment was held beyond challenge in Ext.A7 judgment. The observation made in Ext.A7 judgment being relevant in the context is extracted hereunder : “ 35. xx xx xx In continuation of the judgment, the Honourable Supreme Court had passed an order on 25.03.96 in which it is observed that all appointments made on or after 01.01.71 up to the date of the judgment will continue as they are until a new managing committee can decide which of the two contenders is the legitimate incumbent. The 1[st] plaintiff Vicar however was appointed as per Ext.A4 prior to 01.01.1971. He was appointed by the Diocesan Metropolitan of Angamaly diocese. The appointment being one prior to 01.01.1971, cannot be challenged and he is the legally appointed Vicar. As per ``` AS.No.294 OF 2002(E) ``` ``` 14 ``` Clause 12 of Ext.A1 the lawful appointed Vicar is the competent person to convene the parish assembly meeting by announcing it in the parish church during service on two Sundays before the meeting. This procedure was followed by 1[st] plaintiff and meeting was held on 17.06.1996 and plaintiffs 2 and 3 were elected as lay-stewards. Therefore it has to be held that the 1[st] plaintiff is the lawful Vicar and plaintiffs 2 and 3 are lawfully elected lay-stewards of the plaint Church.” Therefore, the 3[rd] defendant and the 2[nd] defendant in the suit on hand and Sri.N.M.Varghese, S/o.Nedumchalil Markose shall continue as the rightful Vicar and lay-stewards of the church respectively and it was held so in Ext.A7. 9. On 29.07.1996 a common judgment was passed by the 1[st] Additional District Judge, Ernakulam (Special Court for Malankara Church Cases) in O.S. No.4/1986, 206/1977 and 20/1994. O.S. No.4/1986 was decreed as follows : “It is declared that the 1[st] plaintiff is the duly appointed Vicar of Pothanicadu St.Mary's Church and the plaint church is liable to be administered by the Vicar and the Trustees elected in accordance with 1934 Constitution. It is made clear that they cannot assume charge of the Managing Committee until administrators appointed in O.S. No.18/77 are discharged. Consequently no relief of injunction can be granted restraining the defendants from interfering with the administration of the church by the Vicar - 1[st] plaintiff and elected Trustees – plaintiffs 2 and 3 at this ``` AS.No.294 OF 2002(E) ``` ``` 15 ``` stage. Plaintiffs may assume charge once the Administrators are discharged or if they think proper, may convene the general body meeting and elect managing committee afresh and then assume charge.” It is pertinent to note that Ext.A7 was rendered following the dictum of the Apex Court in P.M.A. Metropolitan (supra). Ext.A7 has attained finality on being non-interfered with by this Court in appeal and on dismissal of the Special Leave Petition by the Apex Court. 10. Moreover, the Apex Court held in the classic decision Varghese (supra) that the Malankara Church, its properties and other matters are to be governed by the 1934 Constitution and even the parishioners forming majority has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. 11. The direction as incorporated in paragraph 146 of the above case is extracted hereunder : “146. xx xx In our opinion, counsel is right that no one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an Association but the ``` AS.No.294 OF 2002(E) ``` ``` 16 ``` question in the case is whether one can form another Association within the same Association and to run a parallel system of management of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise is to form a new Constitution 2002 to appoint Vicars, Priests etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. It was a trust created as Malankara Church that is supreme, for once a trust always a trust.” 12. It has been reiterated by the Apex Court in various decisions as stated supra that the governance of the church must strictly be in accordance with the provisions of 1934 Constitution and therefore it is improper for the plaintiffs to press for the reliefs as referred to supra. The courts in seizin of matters seeking for governance of the church or any other kind of reliefs against the 1934 Constitution are precluded from granting the reliefs in view of the categoric directions in ``` AS.No.294 OF 2002(E) ``` ``` 17 ``` Varghese (supra). The Courts are dis-empowered to grant reliefs of the nature. The Apex Court has absolutely meant so in Varghese (supra). Therefore, that it was observed in the order passed by the Apex Court on 06.09.2019 in Civil Appeal Nos.7115-7116 of 2019, arose from an interim order passed by a learned Single Judge, which run expressly contrary to its decision in Varghese (supra) as follows : “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.” 13. As already stated, the reliefs sought in the suit on hand firstly was to hold elections to elect new Kaikars and Managing Committee after preparing upto date Voters list on the basis of one prepared by the Advocate Commissioner in O.S. No.18/1997 of 1[st] Additional District Court, Ernakulam. The Advocate Commissioner was directed to prepare a Voters list incorporating all male and female parishioners who have completed 21 years of age irrespective of any factual affiliations in a context where conflicting interests on the ``` AS.No.294 OF 2002(E) ``` ``` 18 ``` governance of the church and its institutions were there and when most of the Parishioners had adopted the 1934 Constitution after having decided to scrap 1933 Constitution on their firm feeling that it will not suit for the administration of the church and other institutions. 14. By Ext.A7 judgment the 1[st] Additional District Court, Ernakulam has held that elections to appoint Vicar and trustees to administer church shall be in accordance with 1934 Constitution and when Ext.A7 has become final, the relief firstly sought deserves no merits for the reason that strict direction in Ext.A7 is there to hold elections only in accordance with 1934 Constitution. The relief sought secondly is a direction to the 2[nd] defendant, whose appointment as Vicar was held legal by Ext.A7 judgment to render accounts of the income and expenses of the church from the date of his assuming the management of the church, pursuant to the decree in O.S. No.18/1977 of 1[st] Additional District Judge. As rightly held by the trial judge, no materials are furnished in evidence by the plaintiffs to get a relief of the nature as claimed secondly in the suit on hand. ``` AS.No.294 OF 2002(E) ``` ``` 19 ``` 15. As per the constitution of 1934 (Article 7), all men who confess and receive holly qurbana atleast once an year and who have completed the age of 21 years may be the members of the parish assembly. As per Article 12 of the Constitution, the Vicar is the person authorised to convene a meeting of parish assembly members to conduct election. Article 14 shows that if the Vicar does not convene a meeting at the request of any party entitled, the Diocesan Metropolitan can be petitioned and his decision shall be implemented. The relief sought is to direct the 2[nd] defendant to hold election in accordance with the voters list prepared by the Advocate Commissioner in O.S. No.18/1977 which incorporates all male and female parishioners who have attained 21 years of age. This direction, if granted, will be in opposition to the provisions of 1934 Constitution. 16. In the impugned judgment, the trial court has correctly found that the reliefs sought are worded against the provisions of the 1934 Constitution and accordingly found it impracticable to grant those. Accordingly, the suit was dismissed. ``` 20 ``` ## **`AS.No.294 OF 2002(E)`** 17. This Court finds no reason to interfere with the judgment under challenge. Undoubtedly, this court is ousted from exercising the jurisdiction to interfere with. Since the position under dispute has been settled by the Apex Court in Varghese (supra). In the result, the appeal is dismissed. ``` Sd/- ``` ``` ttb ``` ``` MARY JOSEPH JUDGE ```