St. John's Jacobite Syrian Orthodox Church (Kappil Pally) v. Fr. Shibu Kurian and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY ,THE 03RD DAY OF SEPTEMBER 2018 / 12TH BHADRA, 1940** ## **RFA.No. 38 of 2010** **AGAINST THE JUDGMENT DATED 16-01-2010 IN OS 50/2003 of I ADDL.DISTRICT COURT, ERNAKULAM.** ## **APPELLANTS/DEFENDANTS :** ||**1**|**ST.JOHN'S JACOBITE SYRIAN ORTHODOX CHURCH,**| |---|---|---| |||**(KAPPIL PALLY), PALAKUZHA VILLAGE, MUVATTUPUZHA.**| |*|**2**|**FR.VARGHESE EDUMARIYIL, AGED 60,**| |||**EDUMARIYIL HOUSE, MEKKADAMPU,**| |||**MUVATTUPUZHA. (SUBSTITUTED)**| ||**3**|**SCARIAH, AGED 61, SON OF VARGHESE,**| |||**RESIDING AT KALLANAYIL HOUSE,**| |||**MOONGAMKUNNU, PALAKUZHA.**| |*|**4**|**ABRAHAM AVIRAH, SON OF AVIRAH AGED 55,**| |||**AVALUMTHADATHIL, KARIMPANA (PO),**| |||**PALAKUZHA. (SUBSTITUTED)**| ***APPELLANTS 2 AND 4 SUBSTITUTED.** ***A2 FR.ROY K VARGHESE, S/O VARGHESE, KULANGATH HOUSE, ONAKKOOR DESOM, ONAKKOOR VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT. *A4 M.K.JOY, S/O KURIAKOSE, MANANTHAKKARA, PUTHENPURAYIL HOUSE, PALAKKUZHA VILLAGE, MUVATTUPUZHA TALUK.** **RFA.Nos. 38 of 2010 & 121 of 2018** 2 **FR.VARGHESE EDUMARIYIL (A2), THE THEN VICAR OF THE CHURCH EXPIRED ON 31-05-2013 AND ABRAHAM AVIRAH (A4), ONE OF THE TRUSTEES OF THE CHURCH EXPIRED ON 24-08-2014 AND THE ABOVE SAID APPELLANTS FR.ROY K.VARGHESE AND M.K.JOY ARE SUBSTITUTED AS A2 AND A4 RESPECTIVELY AS PER ORDER DATED 5-6-2018 IN I.A NO.692/2018.** **BY SENIOR ADV.SRI. R.D. SHENOY BY ADVS.SRI. K.P. SUJESH KUMAR & MS.KEERTHI K.NARAYAN.** ## **RESPONDENTS/PLAINTIFFS :** - **1 FR.SHIBU KURIAN, S/O KURIAKOSE PAILY, AGED 36, VICAR, ST.JOHN'S ORTHODOX CHURCH, PALAKUZHA.** - **2 JOHN THOMAS, SON OF THOMAS, AGED 74, KUSUMAKUNNU, KULIRANKAL, PALAKUZHA.** - **3 T.T.PAULOSE, SON OF THOMAS, AGED 51, THOLANIKUNNEL, PALAKUZHA.** **BY SENIOR ADV.SRI.S.SREEKUMAR FOR R1 TO R3.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2018, ALONG WITH RFA. 121/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.Nos. 38 of 2010 & 121 of 2018** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY ,THE 03RD DAY OF SEPTEMBER 2018 / 12TH BHADRA, 1940** ## **RFA.No. 121 of 2018** **AGAINST THE JUDGMENT AND DECREE DATED 16-01-2010 IN OS 50/2003 of ADDITIONAL DISTRICT COURT - 1, ERNAKULAM,** ## **APPELLANTS/3RD PARTIES TO THE SUIT :** 1 **MATHAI CHACKO, S/O CHACKO, AGED 79 YEARS, KURUMULIPPADATHU, PALAKUZHA KARA, KOOTHATTUKULAM P.O., PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 2 K.C.ABRAHAM, S/O CHACKO, AGED 68 YEARS, KURUMULIPPADATHU, PALAKUZHA KARA, KOOTHATTUKULAM P.O., PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 3 KURIAKOSE CHACKO, S/O CHACKO, AGED 66 YEARS, KURUMULIPPADATHU, PALAKUZHA KARA, KOOTHATTUKULAM P.O., PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - 4 **K.K.THOMAS, S/O KURIEN, AGED 65 YEARS, KURUMULIPPADATHU, KOOTHATTUKULAM KARA, KOOTHATTUKULAM P.O., KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.BOBBY MATHEW KOOTHATTUKULAM & SRI.TOJAN.J.VATHIKULAM.** ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS IN THE SUIT :** 1 **FR.SHIBU KURIAN, S/O KURIAKOSE PAILY, AGED 42, VICAR ST.JOHN'S ORTHODOX CHURCH, PALAKUSHA - 686 662.** **RFA.Nos. 38 of 2010 & 121 of 2018** 4 - **2 JOHN THOMAS, S/O THOMAS, AGED 78, KUSUMA KUNNU KULIRANKAL, PALAKUSHA VILLLAGE - 686 662.** - **3 T.T.PAULOSE, S/O THOMAS, AGED 45, THOLANIKUNNEL, PALAKUSHA VILLAGE - 686 662.** - **4 THE ST.JOHN'S ORTHODOX SYRIAN CHURCH (KAPPIL PALLY), PALAKUSHA VILLAGE, MUVATTUPUSHA - 686 662.** - **5 FR.VARGHESE EDUMARIYIL (DIED), AGED 63, EDUMARYIL HOUSE, MEKKADAMPU, MUVATTUPUSHA (SUBSTITUTED).** - **6 SKARIA, S/O VARGHESE, AGED 65, KALLANANIYIL HOUSE, MOONGAMKUNNU, PALAKUSHA PO., PIN - 686 662.** - **7 ABRAHAM AVIRAH, S/O AVIRAH, AGED 58, AVALUMTHADATHIL, KARIMPANA PO, PALAKUSHA VILLAGE, PIN - 686 662.(SUBSTITUTED)** - ***R5 FR.ROY K.VARGHESE, S/O VARGHESE, KULANGATH HOUSE, ONAKKOOR DESOM, ONAKKOOR VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - ***R7 M.K.JOY, S/O KURIAKOSE, MANANTHAKKARA PUTHENPURAYIL HOUSE, PALAKKUZHA VILLAGE, MUVATTUPUZHA TALUK.** *** THE ABOVE RESPONDENTS ARE SUBSTITUTED IN THE PLACE OF RESPONDENTS 5 AND 7 AS PER ORDER DATED 28-06-2018 IN I.A NO.993 OF 2018.** **BY SENIOR ADV.SRI.S.SREEKUMAR, BY ADVS. SRI. P. MARTIN JOSE &** **SRI.P.PRIJITH FOR R1, R2 AND R3. BY ADV.SRI.K.P.SUJESH KUMAR FOR R4, R5, R6 AND R7.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2018, ALONG WITH RFA NO.38 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.Nos. 38 of 2010 & 121 of 2018** 5 A.HARIPRASAD, J. -------------------------------------- R.F.A Nos.38 of 2010 & 121 of 2018 -------------------------------------Dated this the 3rd day of September, 2018 ## C O M M O N J U D G M E N T These appeals arise out of the judgment and decree passed by the First Additional District Court (Special court for Malankara Church cases) in O.S No.50 of 2003. Appellants in R.F.A No.38 of 2010 are the defendants in the suit and the contesting respondents are the plaintiffs. Appellants in R.F.A No.121 of 2018 are not parties to the suit. However, with the leave of this court, they preferred this appeal alleging that the decree passed in the suit adversely affected their interests in the disputed church. **RFA.Nos. 38 of 2010 & 121 of 2018** 6 2. Contentions in the plaint are as follows : First defendant church is a constituent church of Malankara Orthodox Church, coming under the fold of Kandanad diocese. It is a public trust. According to the plaintiffs' case, the first plaintiff is vicar and the other plaintiffs are parishioners of the first defendant church. Defendants 3 and 4 claim to be the trustees of the church and 2nd defendant makes a claim that he is the vicar of the church. 3. As number of parishioners are too many, it may not be possible to implead them all in the suit. Hence the suit is instituted in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (in short 'the C.P.C') representing all the persons interested in the subject matter. 4. First defendant church has three chapels. Plaintiffs would assert that administration and management of the first defendant church, its chapels and properties are to be carried out as per the provisions in 1934 Malankara Church **RFA.Nos. 38 of 2010 & 121 of 2018** 7 Constitution ( in short '1934 Constitution'). 5. The Supreme court in P.M.A Metropolitan's case (A.I.R 1995 S.C 2001) upheld validity of 1934 constitution and it shall govern the administration and management of all churches including the first defendant church. The vicars functioning under 1934 constitution, including the first plaintiff, were appointed by the Metropolitan of Kandanadu dioceses in accordance with clause 40 of the 1934 constitution. Subsequent to the above decision, necessary steps were taken to conduct an election to the managing committee of Malankara church. Justice Malimath was appointed as observer to the election of the managing committee held on 20-03-2002. After completing the election as per direction of the Supreme court, the meeting of the managing committee was held on 10-08-2002 and Dr.Thomas Mar Athanasius and Dr.Mathews Mar Saverious were again appointed as the Metropolitans of Kandanad diocese. After Dr.Thomas Mar Athanacius was appointed as Metropolitans of Kandanad diocese East, he issued a Kalpana **RFA.Nos. 38 of 2010 & 121 of 2018** 8 confirming the appointment of the first plaintiff as vicar of the first defendant church. 6. One Paulose Kathanar and others filed a suit O.S No.17 of 1977 before the Munsiff's Court, Thodupuzha, which was transferred and renumbered before the First Additional District Court (designated court for Church cases), Ernakulam, as O.S No.166 of 1977. But that suit was dismissed as it had become infructuous. 7. Defendants 3 and 4 claim to be the trustees of the first defendant church. It is their claim that they had been elected for a period of one year by the patriarch group in the Malankara Church in 2002. According to the plaintiffs, the said Pothuyogam is illegal and election pursuant to thereof is void. Because of the pendancy of O.S No.166 of 1977, no step was taken to call a pothuyogam and elect new office bearers for administration of the church. Therefore, it is contended that the defendants are staying in the office without any authority. They have no right to continue in administration of the church. It is also alleged that they are doing illegal **RFA.Nos. 38 of 2010 & 121 of 2018** 9 acts, which are detrimental to the interests of the church. Defendants 3 and 4 are not the legally elected trustees or secretary. They are liable to be removed from the trusteeship and in order to fill up the vacuum, a receiver should be appointed in their place until an election is properly conducted in accordance with 1934 constitution. Therefore, the plaintiffs sought for the following reliefs : - “(a) A decree of declaration that Ist defendant church, its three chapels and properties are to be administered and managed by 1934 constitution. - (b) A decree of removing defendants 3 and 4 as trustees of Ist defendant church. - (c) Pass a decree of permanent prohibitory injunction restraining defendants 3 and 4 from functioning as trustees of the Ist defendant church. - (d) A decree of permanent prohibitory injunction restraining the defendants 2 to 4 or anybody claiming under them from bringing any vicar/priest to Ist defendant church or its chapels for Holy services or any other religious or spiritual **RFA.Nos. 38 of 2010 & 121 of 2018** 10 functions other than those appointed by Metropolitan of Kandanadu Diocese East, in accordance with 1934 constitution. - (e) A decree of permanent prohibitory injunction restraining the 2nd defendant from discharging the duties of Vicar/Priest of the Ist defendant church. - (f) A decree of permanent prohibitory injunction restraining defendants 2 to 4 or anybody claiming under them from causing any let or hindrance or any kind of obstruction to first plaintiff in convening the puthuyogam of Ist defendant church and conducting election to managing committee and lay trustees in accordance with 1934 constitution. - (g) Grant such other reliefs as may be prayed for from time to time. - (h) Award the cost of the suit.” 8. In the plaint, it is made clear that the plaintiffs instituted the suit by invoking the provisions under Section 92 of the C.P.C. 9. The defendants filed a written statement contending that the plaint **RFA.Nos. 38 of 2010 & 121 of 2018** 11 church was established with the sole object of conducting religious services by only those religious dignitaries who possessed the spiritual grace emanating from the Apostolic Throne of St.Peter at Antioch through the Patriarch of Antioch. First plaintiff does not belong to the said category and therefore, he is not entitled to conduct any religious service either as vicar or as priest in the first defendant church. The general body (pothuyogam) of the plaint church was held on 30-06-2002, wherein it was decided to adopt the constitution of the Jacobite syrian church framed in 2002. Said decision is consistent with the object of foundation of the plaint church. According to the defendants, the second defendant was functioning in the plaint church as vicar and he was appointed by the diocesan Metropolitan of Kandanad diocese in accordance with the founding object of the church. It is further alleged in the written statement that Malankara Orthodox Church Constitution of 1934 is not applicable or binding on the plaint church. The plaint church has opted out from the Malankara Association of the Malankara **RFA.Nos. 38 of 2010 & 121 of 2018** 12 Orthodox Church and associated itself to the Jacobite Syrian Christian Association of the Jacobite Syrian Christian Church. Both the Malankara Orthodox Syrian Church and the Jacobite Syrian Christian Church are two separate autonomous units of the Syrian Orthodox Church under the spiritual Headship of the Patriarch of Antioch. 10. According to the defendants, Dr.Thomas Mar Athanasius Metropolitan has no power over the plaint church. It is also contended that the decision in P.M.A Metropolitan's case (supra) is not applicable to the plaint church. All the allegations regarding breach of trust, mismanagement etc. are denied in the written statement. 11. Heard the learned Senior counsel for the appellants in R.F.A No.38 of 2010 and the learned counsel for the appellants in R.F.A No.121 of 2018 and also the learned Senior counsel appearing for the plaintiffs/contesting respondents in both the appeals. 12. I shall deal with the contentions in R.F.A No.38 of 2010 before going to **RFA.Nos. 38 of 2010 & 121 of 2018** 13 the merit of R.S.A No.121 of 2018. Even though a declaratory decree to the effect that the first defendant church, its three chapels and properties are to be administered and managed by 1934 constitution was sought for in the plaint, it was not granted by the trial court. Rest of the reliefs claimed in the plaint had been granted. Learned counsel for the defendants (appellants in R.F.A No.38 of 2010) contended that without framing proper issues and without entering a definite finding that the suit is one falling within the scope of reliefs claimable under Section 92 of the C.P.C, the court below should not have granted the decree. It is vehemently argued by the learned Senior counsel that the court below failed to frame proper issues in the suit, which is a mandatory requirement under Order 14 Rule 1 of the C.P.C. A general issue as to whether the suit is maintainable or whether the plaintiffs are entitled to a declaration and other reliefs prayed cannot be treated as proper issue in a suit under Section 92 of the C.P.C. 13. It is true that a questions of fact or law asserted by the plaintiffs and **RFA.Nos. 38 of 2010 & 121 of 2018** 14 denied by the defendants give rise to issues. Truly speaking, the court below failed in framing proper issues in this case. But, as pointed out by the learned Senior counsel for the plaintiffs, it is evident that the parties clearly understood the contentions raised by each side and they answered the rival contentions in their pleadings. That apart, both the parties adduced evidence fully understanding the case of opposite party. Therefore, non framing of an issue may not be significant for the reason that it cannot be stated in this case that the parties were taken by surprise as they fought the legal battle with full vigour knowing the contentions of each other. 14. Learned Senior counsel for the defendants contended that in the absence of a proper issue, the court below did not enter a correct finding as to the application of Section 92 of the C.P.C. It is also argued that if a suit is instituted with the leave of court under Section 92 of the C.P.C and it is found to be bereft of any of the reliefs claimable under Section 92, then the suit should be dismissed without **RFA.Nos. 38 of 2010 & 121 of 2018** 15 granting any further relief. In order to raise this argument, reliance is placed on Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another (A.I.R 1974 SC 2141) . On a careful reading of the facts, it can be seen that the plaintiff therein prayed for removal of respondent No.1 from the headship of a Math, a declaration that Krishnabodhashram was the duly installed head of the Math and to appoint him as a head and in the alternative, to appoint any other competent person as head of the Math. The defendant in the suit denied the allegations in the plaint and contended that the suit being one primarily for vindication of the claim of Krishnabodhashram to be the Shankaracharya of the Math was not maintainable under Section 92 of the C.P.C. On evidence, the courts below found that the allegations with respect to breach of trust by the respondent No.1 had not been proved, and that Krishnabodhashram was validly installed as the Shankaracharya of the Math, also had not been established. The suit brought for vindication of the right of Krishnabodhashram to the headship of the Math, was not maintainable **RFA.Nos. 38 of 2010 & 121 of 2018** 16 under Section 92 of the C.P.C. In this factual background, the Apex court held thus : “ A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. If the allegation of breach of trust is not substantiated or if the plaintiff has not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail. If it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the **RFA.Nos. 38 of 2010 & 121 of 2018** 17 suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public.” 15. Learned Senior counsel for the plaintiffs would contend that the facts in Swami Paramatmanand Saraswati 's case (supra) are clearly distinguishable and it has no comparison to the facts in this case. It is the contention of the learned Senior counsel for the plaintiffs that the first defendant church, being a part of 1934 constitution by virtue of the binding decisions by the Supreme court in various cases, can only be a public trust and defendants 3 and 4, who can be called trustees **RFA.Nos. 38 of 2010 & 121 of 2018** 18 de son tort are in unlawful management of the trust property and therefore they are liable to be removed. In this regard, the plaintiffs' claim squarely falls within Section 92 (1) (a) of the C.P.C. In order to fill up the vacuum, an election will have to be conducted which is covered by prayer (f) in the plaint and in the interregnum there should be management of the church by a receiver. It is therefore contended by the learned Senior counsel that these aspects will clearly show that the reliefs claimed in the plaint fall within Section 92 (1)(a) and (b) and at any rate within sub clause (h). 16. It is also contended by the learned counsel for the plaintiffs with reference to the averments in the plaint that apart from pleading that the first defendant church is a public trust, direction of the court is sought for the administration of the trust on the ground that the defendants 3 and 4 are mismanaging the trust. Therefore, all the ingredients of Section 92 of the C.P.C have been satisfied is the contention of the plaintiffs. **RFA.Nos. 38 of 2010 & 121 of 2018** 19 17. Learned Senior counsel for the defendants would contend that the relief (f) in the plaint does not fall within Section 92 of the C.P.C. In answer to this contention, learned Senior counsel for the plaintiffs would contend that it is the responsibility of the vicar to conduct an election to the managing committee of the church as per the provisions in 1934 constitution and to enable the first plaintiff to discharge his function, an injunction is sought against the defendants who are likely to interfere with the election. Even if relief (f) do not strictly fall within the parametres of Section 92 of the C.P.C in effect that will lead to the installation of new trustees for administration of the church. It is therefore contended that at any rate this will fall within Section 92 (1) (h) of the C.P.C. Having regard to the facts and circumstances, I find substance in this argument. 18. Learned Senior counsel for the defendants contended that no issue regarding misconduct of the defendants deserving their removal has been pleaded in the plaint. According to the learned Senior counsel for the plaintiffs, the stand **RFA.Nos. 38 of 2010 & 121 of 2018** 20 taken by them in the written statement itself shows that they have disclaimed any authority under 1934 constitution and claimed the protection of 2002 constitution, which itself is a breach of trust. That apart in the written statement it has been specifically pleaded that the defendants have opted out of Malankara church and formed a new denomination. Relying on Varghese v. St.Peters and Pauls Syrian Orthodox Church ( 2017 (3) K.L.T 261 (S.C)) , it is contended by the learned Senior counsel for the plaintiffs that the questions which have been concluded by the Supreme court in P.M.A Metropolitan's case (supra) was sought to be a resurrected in another round of litigation and the Supreme court in unambiguous terms found that the principles in P.M.A Metropolitan's case (supra) stand firmly. Learned Senior counsel for the plaintiffs contended by referring to paragraph 184 in Varghese case (supra) that all the contentions now raised by the defendants are repelled by the binding pronouncement. In clause No.xvii, it has been held by the Supreme court that the church and the cemetery cannot be confiscated by anybody. It is also found **RFA.Nos. 38 of 2010 & 121 of 2018** 21 that the 1934 constitution is appropriate and adequate for management of the parish churches, as such there is no necessity of framing a scheme under Section 92 of the C.P.C. On these basis, it is contended by the learned Senior counsel that merely because no issue was framed relating to Section 92 of the C.P.C, the suit does not become incompetent since it has been declared by the apex court that Malankara churches are to be administered by 1934 constitution, including the disputed church. This church too is a trust and no separate scheme for its administration is required. 19. This decision was later considered and the principles re-stated by a three Judge bench of the Supreme court in Civil appeal Nos.6263 - 6265 of 2001 by judgment dated 28-08-2018. The challenges against the judgment in Varghese case (supra) was repelled by a three Judge bench affirming the views taken by the apex court in P.M.A Metropolitan's case (supra) and Varghese case (supra). Therefore, it is evident that none of the contentions raised by the defendants in the **RFA.Nos. 38 of 2010 & 121 of 2018** 22 written statement can be countenanced in the light of the binding pronouncements. 20. Learned counsel for the defendants argued that simply because they adopted 2002 constitution, it will not ipso facto disqualify them or disentitle them for claiming the rights of a parishioner. This general proposition may be true. But it is clear from the binding decisions on the point that those who do not owe allegiance to 1934 constitution cannot claim any benefit as parishioners of the church, which falls within the administrative set up under the 1934 constitution. 21. Having regard to the submissions of the learned Senior counsel for the defendants that non framing of issue touching on the applicability of 1934 constitution and any breach of trust, the suit has to be remanded to the trial court, I find that it cannot be accepted. The parties have let in evidence understanding the rival contentions and the trial court has entered a clear finding that the defendants are trying to take the administration of the church out of 1934 constitution by raising contentions which are not supported by the binding decisions of the **RFA.Nos. 38 of 2010 & 121 of 2018** 23 Supreme court. Therefore, I see no reason to find fault with the decision taken by the trial court in regard to the reliefs granted in favour of the plaintiffs. The relief of declaration was rightly denied by the court below in the light of the pronouncements in P.M.A Metropolitan' s case (supra) and Varghese case (supra), which is affirmed in Mathews Mar Koorilos case(Civil appeal Nos.6263 - 6265 of 2001), and hence I find no reason to interfere with the judgment and decree passed by the court below. 22. The oral evidence in this case do not assume much importance, because the documents produced on either side coupled with the pleadings and judgment in O.S No.166 of 1977 (Exts.B24 to B26 suits) make it clear that the church is to be administered under 1934 constitution. Therefore, I find no merit in the appeal by the defendants. 23. Coming to R.F.A No.121 of 2018, it can be that it is filed by third parties to the suit. They claim to be parishioners of the first defendant church. They came to **RFA.Nos. 38 of 2010 & 121 of 2018** 24 know of institution of the suit when the vicar announced that matter in the church after a Holy mass. It is alleged that the appellants expressed their intention to join the array of defendants in the suit. But the contesting defendants in the suit discouraged them by saying that they need not get themselves impleaded in the suit because the defendants would take care of the interests of the church. It is alleged by the appellants in R.F.A No.121 of 2018 that the defendants in the suit did not properly contest the case. The appellants would contend that the church was established during the year 1878 by late Kurumulippadath Yoahannan Mooppan. During the year 1840-41, there were disputes between two groups in Malankara sabha regarding the post of Malankara Metropolitan. This disputes percolated down the parishioners as well, leading to the formation of two rival groups. According to the appellants, the plaint church was never a parish church. Founder of the church was a strong and active supporter of the Patriarch of Antioch. In the aforementioned circumstances, Kurumulippadath Yoahannan Mooppan decided to **RFA.Nos. 38 of 2010 & 121 of 2018** 25 leave from the membership of Vadakara church and established a new church of his own, where the Patriarch of Antioch would have absolute supremacy power and authority. According to the appellants, the new church installed by Kurumulippadath Yoahannan Mooppan was not part of the Malankara church. The disputed church is purely an independent church coming under the direct control of the Patriarch of Antioch. That was the sole intention of the founder since he believed that only through the Patriarch of Antioch the spiritual power from God would come. It is also contended that the basic structure or object of the church cannot be changed by any subsequent agreements or bye laws including the 1934 constitution. It is therefore contended that both the plaintiffs and defendants colluded together to defeat the appellants and obtained a decree compromising the real nature of the church. 24. Learned counsel for the plaintiffs opposed the contentions on many grounds. Firstly, it is contended that the suit being one instituted as a representative **RFA.Nos. 38 of 2010 & 121 of 2018** 26 suit under Order 1 Rule 8 of the C.P.C and also under Section 92 of the C.P.C, the appellants could have joined issue and raised the contentions as they themselves were aware of the litigation at the appropriate time. Fact that they were aware of the litigation is evident from the appeal memorandum itself. Still, they did not choose to join issue with the plaintiffs. It is contended on behalf of the plaintiffs that it cannot be now said that the disputed church is an independent church directly administered by delegate of the patriarch. In ever so many litigations, including that in P.M.A Metropolitan's case (supra) , this church figured in the list of 1064 churches. That apart, in earlier litigations regarding this church it has been repeatedly held that this is a church falling within the fold of Malankara church and to be administered under 1934 constitution. It is the contention of the plaintiffs that the appellants are persons set up by the defendants since they are precluded from putting forward any claim of right under 2002 Jacobite Syrian Christian Church Constitution. **RFA.Nos. 38 of 2010 & 121 of 2018** 27 25. Learned counsel for the appellants relying on Gram Panchayat of Village Naulakha v. Ujagar Singh and Others ((2000) 7 SCC 543), argued that in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit. It is argued by the learned counsel for the appellants that in the same suit it can be established that the judgment and decree happened to be passed against the interest of the appellant by the plaintiffs and defendants colluding together to defeat their interest. There cannot be any dispute to the proposition that if the materials already produced in evidence established such a fact, then the appellants may establish that fact. At any rate, the appellants cannot be heard to say new facts without any pleadings or evidence in this case. In other words, the appellants are precluded from developing any new case without the foundation of pleadings, which should be established by evidence. It may be true that they need not file a separate suit, if the evidence on record clearly spell out a collusion between the disputants to defeat the interest of **RFA.Nos. 38 of 2010 & 121 of 2018** 28 the appellants. Having regard to the nature of contentions raised by the plaintiffs and defendants and the quality and quantum of evidence adduced on both sides, I am of the view that no collusion or fraud can be inferred in this case as both parties were fighting to vindicate their respective claims. 26. Relying on Ext.B24 plaint and Ext.B26 judgment, it was argued by the learned counsel for the appellants in R.F.A No.121 of 2018 that the collusion is writ large in the pleadings. Ext.B24 suit was instituted originally by Poulsoe Kathanar and two others before the Munsiff's Court, Thodupuzha. It was later transferred to the Additional District Court (Special court for church cases). After tracing the history of the church, it is mentioned that the plaint church was administered under the 1934 constitution from 16-01-1972 onwards. It is therefore contended by the learned counsel for the appellants that till that date, even according to the plaintiffs in O.S No.166 of 1977, the disputed church was not administered under 1934 constitution. In answer to this argument, learned Senior counsel for the plaintiffs, **RFA.Nos. 38 of 2010 & 121 of 2018** 29 relying on the written statement filed by third defendant in the suit, who was the Catholicos of the East of the Jacobite faction, contended that at that time the plaint church was a parish church governed by its own rules and regulations. It is therefore argued by the learned counsel for the plaintiffs that the present argument that the plaint church is not a parish church at all, as now put forwarded by the appellants had been negatived by the Catholicos of the East, himself, who figured as the third defendant in the earlier suit in respect of the same church. In order to show that the church was falling within the administrative set up of Malankara church under 1934 constitution. Exts.A7 and A8 are also relied on. These documents are attacked by the learned counsel for the appellants contenting that these all are self serving documents made behind the back of the persons putting forward the interest of the appellants. However, those aspects can only be established in a regular trial and not in an appeal filed by the appellants without pleadings and proof. **RFA.Nos. 38 of 2010 & 121 of 2018** 30 27. Relying on Ext.B12, learned counsel for the appellants contended that it is a document of 1890 and no mention of Malankara Metropolitan was made therein. Only patriarch and its delegates have been mentioned showing that the church was standing as an independent entity. Learned Senior counsel for the plaintiffs answered this contention by contending that during that period there was dissensions in the church and that cannot be taken as a reason to find that the disputed church is not a parish church, which had been later included in the administrative set up of the 1934 constitution. 28. Learned trial Judge relied on Amrithakumari v. Ramanathan (1998(2) K.L.T 305), to hold that merely by asking a declaratory relief in a suit in which reliefs under Section 92 of the C.P.C are also claimed, it will not take the suit out of the purview of Section 92 of the C.P.C. 29. On a plain reading of the Order 1 Rule 8 of the C.P.C, it can be seen that a representative suit can be instituted for binding the parties only when there **RFA.Nos. 38 of 2010 & 121 of 2018** 31 are numerous persons having the same interest in one suit. According to the contentions of the appellants, they neither support the plaintiffs' case nor that of the defendants'. They would set up a case that the first defendant church is a trust having an independent existence and it does not have a trappings of a parish church. It is therefore contended that neither 1934 Malankara church constitution nor 2002 constitution of Jacobite church binds the first defendant church. None of the oral or documentary evidence adduced on the side of the contesting parties will probabilise this case of the appellants. If they are not having the same interest either with the plaintiffs or the defendants, certainly the decree does not bind them and will not cause any prejudice to their contentions. That apart, even though the learned counsel vehemently argued that the evidence adduced will indicate collusions between the plaintiffs and defendants, I find no reason to uphold the contentions. In the light of the quality and quantity of evidence available and also the various pronouncements made in respect of the first defendant church, as well **RFA.Nos. 38 of 2010 & 121 of 2018** 32 as other churches coming within the fold of 1934 Malankara church constitution. I find no reason to find any interest in the appellants to challenge the judgment and decree in these cases. In the result, both the appeals are dismissed. All pending interlocutory applications will stand dismissed. amk Sd/A. HARIPRASAD, JUDGE.