South Kerala Diocese of Church of South India v. J.C. Japasingh and Others (OP(C).Nos. 1214, 1217 & 1218 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938 ## OP(C).No. 1214 of 2016 (O) --------------------------- (AGAINST THE ORDER PASSED BY THE VACATION JUDGE (DISTRICT COURT, TRIVANDRUM) ON 2.5.2016 MADE IN IA NO.4825/2015 IN O.S.NO.202/2015 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM) ## PETITIONERS: - ------------- 1. SOUTH KERALA DIOCESE OF CHURCH OF SOUTH INDIA (SKD) LMS COMPOUND, THIRUVANANTHAPURAM - 695 033, REPRESENTED BY DIOCESE SECRETARY -D.LAWRENCE. 2. D.LAWRENCE SECRETARY, - SOUTH KERALA DIOCESE OF THE CHURCH OF SOUTH INDIA (SKD) LMS COMPOUND, THIRUVANANTHAPURAM - 695 033, 3. REV.T.SELVARAJAN - DIOCESE VICE CHAIRMAN, - SOUTH KERALA DIOCESE OF THE CHURCH OF SOUTH INDIA (SKD) LMS COMPOUND, THIRUVANANTHAPURAM - 695 033, 4. A.DHARMARAJ RASALAM BISHOP, SOUTH KERALA DIOCESE OF THE CHURCH OF SOUTH INDIA (SKD) LMS COMPOUND, THIRUVANANTHAPURAM - 695 033. BY ADVS.SRI.V.V.ASOKAN (SR.) SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA RESPONDENTS: - -------------- 1. J.C. JAPASINGH S/O.JAPARAJ, JAPAVILAS, MANGADU, THIRUMALA P.O., THIRUVANANTHAPURAM - 695 006. 2. SUBIN JACOB S.L. S/O.SOBHIRAJ, RUTH COTTAGE, BLRA 127, HOSPITAL JUNCTION, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121. 3. G.K.SUNIL S/O.N.GEORGE, JAS VILLA, LMS COMPOUND, KANNAMMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011. OP(C).No. 1214 of 2016 (O) 2 4. T.SURESH S/O.THOMAS.J., SNEHA VARSHAM, NELLIVILA, ANCHUTHENGINMOODU, KATTAKADA P.O., THIRUVANANTHAPURAM 695 572. 5. S.T.SURESH KUMAR S/O.SURENDRAN C., S.R.NIVAS, MOONAMOODU, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM 695 013. 6. N.ROY S/O.L.NELSON, JAYAVILASAM, MAVILA, UNDAPPARA, POOVACHAL P.O., THIRUVANANTHAPURAM- 695 575. 7. J.S.JEEN JACKSON, S/O.SELVANOSE J KARMMEL, NEDUMKUZHI, VILAPPILSALA P.O., THIRUVANANTHAPURAM- 695 573. 8. DR.P.K.ROSEBIST, S/O.PATHROSE, ROSE NIVAS, PODUVAL PULLUVILA P.O., THIRUVANANTHAPURAM- 695 526. R1-R8 BY SENIOR ADVOCATE SRI.N.N.SUGUNAPALAN SRI.M.R.RAJESH SMT.E.S.SANDHYA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2016, ALONG WITH O.P(C) NOS. 1217/2016 & 1218/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 1214 of 2016 (O) --------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS ----------------------- - P1 TRUE COPY OF THE JUDGMENT OF THE ADDITIONAL DISTRICT COURT, TRIVANDRUM IN CMA 84/2013 DATED 1/1/2015 - P1(A) TRUE COPY OF THE JUDGMENT OF THE ADDITIONAL DISTRICT COURT, TRIVANDRUM IN CMA 94/2013 DATED 1/1/2015 - P2 TRUE COPY OF THE PLAINT IN OS 202/2015 BEFORE THE SUB COURT, TRIVANDRUM DATED 19/12/2015 - P3 TRUE COPY OF THE IA 4825/2015 IN OS 202/2015 BEFORE THE SUB COURT, TRIVANDRUM DATED 19/12/2015 - P4 TRUE COPY OF THE EXPARTE INJUNCTION ORDER PASSED BY THE SUB COURT, TRIVANDRUM DATED 26/12/2015 - P5 TRUE COPY OF THE ORDER IN I.A NOS.4222/2015 IN OS 1337/2013 ADDITIONAL MUNSIFF COURT I, THIRUVANANTHAPURAM DATED 25/6/2015 - P5(A) TRUE COPY OF THE ORDER IN I.A NO.4595/2015 IN OS 1370/2013 ADDITIONAL MUNSIFF COURT I, THIRUVANANTHAPURAM DATED 25/6/2015 - P6 TRUE COPY OF THE ORDER IN I.A NOS.4713/2015 IN OS 1163/2015 ADDITIONAL MUNSIFF COURT III, THIRUVANANTHAPURAM DATED 25/6/2015 - P7 TRUE COPY OF THE ORDER IN I.A NO.7072/2015 IN OS - NO.1675/2015- ADDITIONAL MUNSIFF COURT-1, THIRUVANANTHAPURAM - P8 TRUE COPY OF THE ORDER IN IA NO.4825/2015 IN OS NO.202/2015 OF THE ADDITIONAL DISTRICT COURT, TRIVANDRUM DATED 2/5/2016 ## RESPONDENTS' EXHIBITS: NIL ----------------------- /TRUE COPY/ cms P.S.TO JUDGE ## **K.ABRAHAM MATHEW J.** -------------------------------------------------------O.P.(C).Nos.1214, 1217 & 1218 of 2016 -------------------------------------------------------Dated this the 5[th] day of July, 2016 ## **JUDGMENT** These three Original Petitions are concerned with the administration of South Kerala Diocese of Church of South India, which is the first appellant. The other appellants are its office bearers or Bishop. The administration of the Diocese is done by a diocesan council, the members of which are elected representatives. 2. The power of the High Court under Article 227 of the Constitution is supervisory in nature only. It cannot review or re-appreciate the evidence nor can it substitute its own decision for that of the lower court. The power is exercised only to keep the subordinate courts within the limits of law. So it is not at all necessary for this court to mention the facts of the cases which are necessary only when a decision is rendered on merits. 3. In the three suits from which these O.Ps arise the petitioners are the defendants and the respondents the plaintiffs. 4. The respondents in O.P(C) No.1217 of 2016 filed O.S.No.1675 of 2015 in Munsiff Court, Thiruvananthapuram for the following reliefs: A. To declare that no amendment of the Constitution of the South Kerala Diocese of the Church of South India (S.K.D) was sanctioned by the Diocesan Council in the meeting held on 26.6.2015. O.P.(C).Nos.1214, 1217 & 1218 of 2016 2 B. To declare that the draft Constitution said to have been presented in the meeting of the Diocesan Council of the South Kerala Diocese of the Church of South India (S.K.D) on 26.6.2015 without recommendation of the Executive Committee is void or it may be set aside. C. To restrain and prohibit the defendants from implementing or enforcing the amendment to the Constitution of the 1[st] defendant said to have been passed in the Diocesan Council of the South Kerala Diocese of the Church of South India (S.K.D) meeting alleged to have been held on 26.6.2015. D. To allow the cost of the plaintiffs to be recovered from the defendants. 5. They filed I.A.No.7072 of 2015 for temporary injunction restraining the petitioners in the Original Petition from implementing or enforcing the amendment of the constitution till the disposal of the suit. After hearing both parties the learned Munsiff allowed the prayer. Challenging the order the petitioners in this Original Petition filed a Civil Miscellaneous Appeal in the vacation court as civil courts were closed for summer vacation. The appeal was not even numbered. The vacation judge (Additional District Judge) heard the interlocutory application, I.A.1072 of 2016 in which the prayer was to keep the impugned order in abeyance. The learned district judge held: “So in the given scenario this appeal lacks merit and it is liable to be turned down”. She dismissed the interlocutory application. The prayer in this Original Petition is to set aside the order of the learned District Judge (vacation judge). O.P.(C).Nos.1214, 1217 & 1218 of 2016 3 6. The first attack of the learned senior counsel appearing for the appellants is that the vacation court has no power to pass orders on merits. He also assails the order on the ground that the vacation judge has held that the appeal is without merit, which was beyond the scope of the interim proceedings before her. 7. Section 19 of the Kerala Civil Courts Act which empowers the High Court to nominate judges to hear urgent matters during vacation of the civil courts runs as follows: **19.Adjournment of Civil Court** -(1) The High Court may permit the Civil Courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year. (2) During the adjournment of a Civil Court, the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters and for such purpose, appeals, plaints and petitions and other matters which would ordinarily be presented to such Civil Court shall be received in the District Court and any such order shall, except on matters to be presented in the District Court itself, remain in force until such matter has been heard and decided by the Court having jurisdiction and in the case of orders passed on matters to be presented in the District Court itself, such order shall be an order passed by a Court having jurisdiction. 8. Reliance was placed on the decision of this court in **Viswambharan v. Damodharan Nair (1988 (2) KLT 32)** in O.P.(C).Nos.1214, 1217 & 1218 of 2016 4 support of the appellants argument that the vacation judge has power only to pass provisional orders and not final orders. The learned Judge in Viswambaran's case held: “Except on matters that could ordinarily be presented in the District Court, the order passed by the nominated District Judge could only be provisional on urgent matters and such orders could remain in force only until such matter has been heard and decided by the court having jurisdiction on it being seized of the matter after the reopening. But regarding matters to be presented before the District Court itself, irrespective of the fact that the District Court is also adjourned and the District Judge is acting only as the nominated District Judge under S.19 (2), he can pass such orders as could be passed by a court having jurisdiction.” The decision leaves no room for doubt that when the vacation court itself is the appellate court it has the power to pass final orders on the merits of the matter. In this case the learned District Judge who was the vacation judge was not acting as Munsiff court when she passed the impugned order. In the ordinary course it is a matter which she could have disposed of as appellate court. So there is no merit in the submission that she should not have passed final orders. 9. The impugned order was passed in a Civil Miscellaneous Appeal which was not even taken on file, which is clear from the fact that it was not assigned any number. It was without jurisdiction the vacation court entertained the application and passed the impugned orders. When the main proceedings is not taken on file, O.P.(C).Nos.1214, 1217 & 1218 of 2016 5 there is no question of the courts passing interim orders. So the impugned order was passed without jurisdiction. 10. In an interim injunction application court cannot find that the main proceedings is not maintainable. In this case the learned vacation judge who did not even take the appeal on file held in the impugned order that the Civil Miscellaneous Appeal is not maintainable. It is pertinent to note that the maintainability of the appeal was not a question that arose for consideration and it was not heard also. Thus in any view of the matter the impugned order is illegal and is liable to be set aside. 11. OP No.1214 of 2016 arises from O.S.No.202 of 2015 on the file of Prl Sub Court, Thiruvananthapuram. It was filed by the respondents in the Original Petition. As seen from Ext P2 copy of the plaint the reliefs prayed for in the suit are as follows: A. To declare that the Constitution of the 1[st] defendant published by the defendants repealing the Constitution dated 15.08.2006, which was in existence before 26.6.2015 is illegal, void and ultravires or it may be set aside. B. To declare that the rules and regulations made under the repealing Constitution of the 1[st] defendant may be declared illegal, void and ultravires or it may be set aside. C. To restrain and prohibit the defendants from implementing or enforcing the repealing Constitution which repealed the Constitution of the 1[st] defendant which was in existence before 26.6.2015. O.P.(C).Nos.1214, 1217 & 1218 of 2016 6 D. To restrain and prohibit the defendants from taking any decision in respect of the administration of the 1[st] defendant on the strength of the repealing Constitution published by them and the rules and regulations made thereunder. E. To restrain and prohibit the defendants from withholding rights, facilities and privileges of the plaintiffs as members of the 1[st] defendant and from proceeding with the disciplinary proceedings against them. Along with the suit the respondent/plaintiff filed I.A.4825 of 2015 for the following reliefs: A. To restrain and prohibit the defendants from taking any decision in respect of the administration of the 1[st] defendant on the strength of the repealing Constitution published by them and the rules and regulations made thereunder. B. To restrain and prohibit the defendants from withholding rights, facilities and privileges of the plaintiffs as members of the 1[st] defendant and from proceeding with the disciplinary proceedings against them, till the disposal of the suit. The trial court did not pass any orders on it. So the respondents / plaintiffs filed I.A.No.976 of 2016 in vacation court to advance the posting of I.A.No.4825 of 2015. It was dismissed as not pressed on 18.4.2016 by the Prl District Judge who was the vacation judge. On 28.4.2016 the respondents filed I.A.No.1185 of 2016 for a direction to hear I.A.No.4825 of 2015. It was heard by Additional District Judge who being that time had become the vacation judge. It was O.P.(C).Nos.1214, 1217 & 1218 of 2016 7 heard along with I.A.No.1072 of 2016 filed in the unnumbered C.M.A which arose from O.S.No.1675 of 2015 and which lead to the filing of O.P.No.1217 of 2016 (supra). The vacation judge after hearing the parties passed the following order: “In the light of the order passed by this court in I.A.No.1072/2016 in O.S.No.1675/2015 upholding the order of the learned Munsiff in I.A.No.7072/2015 in the said suit O.S.No.1675/2015, an interim order is passed restraining the respondents from taking any decision in respect of the administration of the 1[st] defendant as per the impugned amended constitution until the petition is finally heard and disposed of by the court concerned.” 12. I have already set aside the order passed on I.A.No.1072 of 2016 in the unnumbered Civil Miscellaneous Appeal as it was passed without jurisdiction (shown as I.A.No.1072 of 2016 in O.S.No.1675 of 2015 in the order of the vacation judge, which is a mistake). The order impugned in this Original Petition also is liable to be set aside as it is based on the order which has been set aside by this court. 13. O.P.(C).No.1218 of 2016 is concerned with the proceedings arising from O.S.No.1699 of 2015 of I Additional Munsiff Court, Thiruvananthapuram. In their suit the respondents in this Original Petition prayed for the following reliefs: A. To pass a decree of declaration declaring that the Order No.SKD(B)/ 116/481/15 dated 26.8.2015 suspending the O.P.(C).Nos.1214, 1217 & 1218 of 2016 8 plaintiffs for 2 months is to be declared as null and void. B. To pass a decree of permanent prohibitory injunction restraining defendants 1 and 2 and their agents from obstructing and objecting the plaintiffs in participating, contesting and voting in the Annual Diocesan Council scheduled to be held on 23.10.2015. 14. In I.A.No.10295 of 2015 filed by them they prayed that the court may be pleased to stay all further proceedings pursuant to the “order in No.SKD(B)116/510/15 dated 26.10.2015 till the disposal of the suit”. The application filed by the respondents to advance the posting of O.S.No.1699 of 2015 was allowed by the vacation judge. In I.A.No.1114 of 2016 the vacation judge restrained the petitioners in the Original Petition from proceeding with the “election proposed to be held on 1.5.2016 as per the impugned final voters list published on 17.4.2016 to the exclusion of the petitioners/plaintiffs until further appropriate direction in that regard”. This order is challenged in this Original Petition. It is stated that the court should not have interfered with an election after the election process has commenced. Reliance is placed on the decision of the Supreme Court in **Supreme Court Bar Association and others v. B.D.Koushik (2011)3 SCC 774)** . It is further submitted that the order in the I.A was beyond the scope of the suit and it amounted decreeing suit itself. 15. At the hearing it was brought to my notice that the suit O.P.(C).Nos.1214, 1217 & 1218 of 2016 9 has become infructuous. One of the two prayers in the suit is to declare that the order of the church suspending the respondents in these Original Petitions from the council for two months is null and void. The order was passed on 26.8.2015. Two months was already over when the impugned order was passed this question does not survive for consideration. The second prayer is to prohibit the church from preventing the respondent/plaintiffs from contesting, participating or voting at the annual diocesan council election which was scheduled to be held on 23.10.2015. This question also was not alive when the order was passed. So it was illegal for the vacation judge to pass the impugned order. This court has to set aside the order exercising its jurisdiction under Article 227 of the Constitution. 16. In the result, these Original Petitions are allowed. Ext P8 order in O.P.(C) No.1217 of 2016 is set aside. The impugned orders in the other two Original Petitions are also set aside. 17. After the disposal of this O.P it was brought to my notice that because of the peculiar facts of the case it is necessary to pass an order with regard to the subject matter of O.P.(C).No.1217 of 2016. 18. Heard learned counsel appearing for all the parties. 19. I have already observed that the interim order was passed by the learned District Judge even before the C.M.A was taken on file. This has created a vacuum. This may lead to unforeseen O.P.(C).Nos.1214, 1217 & 1218 of 2016 10 consequences and may affect the parties prejudicially. So it is necessary to direct that Ext P6 order will be kept in abeyance till the disposal of C.M.A. The District Judge shall immediately direct the office to number the C.M.A and post it before appropriate District Judge, who shall dispose it of within two weeks. The Registry shall communicate this order. The court concerned shall not misunderstand that this court has made any observation about the merits of the case. **K.ABRAHAM MATHEW JUDGE** cms