St. Thomas Bethel Church, Karikodu, Vaikom Taluk, Kottayam District v. K.J. John and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 21ST DAY OF AUGUST 2020 / 30TH SRAVANA, 1942** ## **RFA.No.99 OF 2019** **AGAINST THE DECREE AND JUDGMENT IN OS 12/2002 DATED 18-02-2019 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/DEFENDANTS 1 & 2 AND 7 TO 9:** **1 ST.THOMAS BETHEL CHURCH KARIKODU P.O, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT, REP.BY ITS PRESENT TRUSTEES(1) PROF.JORRY MATHEW, S/O.MATHEW, AGED 64 YEARS, KARAMEL HOUSE, KARIKODE P.O, VAIKOM, VAIKOM TALUK,KOTTAYAM DISTRICT AND (2) SAJAN P.D S/O. DAVID, AGED 54 YEARS, PEEDIKKAPARAMBIL HOUSE, KARIKODE DESOM, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **2 JORRY MATHEW AGED 64 YEARS S/O. MATHEW, KARAMEL HOUSE, KARIKODU P.O, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT.** **3 REV.K. V. THOMAS COR EPISCOPA, S/O. VARKEY, AGED 69 YEARS, KUPPUMALA PUTHANPURAYIL HOUSE, KURINJI P.O, VAZHITHALA, THODUPUZHA TALUK, IDUKKI DISTRICT.** **4 SAJAN P.D. S/O.DAVID, AGED 55 YEARS, PEEDIKKAPARAMBIL HOUSE, KARIKODU DESOM, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** - **5 REJI K JOHN, S/O. JOHN AGED 45 YEARS KARAMMELTHARAYIL HOUSE, KARIKODU DESOM, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.SUNIL JACOB SRI.SHIBU JOSEPH SRI.AJITH VISWANATHAN** **RFA.No.99 OF 2019 2** ## **RESPONDENTS/PLAINTIFFS 1 TO 5 AND DEFENDANTS 3 TO 5 AND ADDL. - DEFENDANTS 6,10&11:** - **1 K.J.JOHN** - **S/O. ULAHANNAN, AGED 70 YEARS, KARAMEL HOUSE, KOOVAPPILLY, KARIKODE, MULAKKULAM VILLAGE, VAIKOM TALUK, 686610.** - **2 M.P. RAJU,** - **S/O. PAULOSE, AGED 57, KARAMEL HOUSE, KOOVAPPILLY, QUARTERS NO.A-48/189, NEWS PRINT NAGAR, MEVALLOOR NOW RESIDING AT KARAMEL HOUSE, KOOVAPPILLY, KARIKODE DESOM, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** - **3 REV. FR. ABRAHAM KARAMEL, S/O. VARGHESE, AGED 54 YEARS, KARAMEL HOUSE, KOOVAPPILLY, KARIKODU, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** - **4 K.V. KURIAN, S/O. VARGHESE, AGED 85, KARAMEL HOUSE, KOOVAPPILLY, KARIKODU, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** - **5 K.A. JOHN, S/O. ABRAHAM KARAMEL, AGED 74, KARAMEL HOUSE,KOOVAPPILLY, KARIKODU, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** - **6 K.T. MARKOSE, S/O. THOMMAN, AGED 64 YEARS, KUREEKUNNEL HOUSE, KARIKODU P.O, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** - **7 REV.FR. SHAJIMON VARGHESE, S/O. VARGHESE, AGED 55 YEARS, MEPPADATH HOUSE, THIRUVANIYOOR VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT686610.** - **8 REV.FR. JACOB MAMPILLY, S/O. CHERIA CHERIA, AGED 73 YEARS, MAMPILLIL HOUSE, CHEMBU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT686610.** ## **9 FR. JOY ANAKKUZHY,** - **S/O.IYPE, AGED 55 YEARS, VICAR, ST. THOMAS JACOBITE SYRIAN CHURCH KARIKODE P.O, VAIKOM TALUK, RESIDING AT ANAKKUZHIYIL HOUSE, KARIKODU P.O, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT-686610.** **RFA.No.99 OF 2019 3** **10 THOMAS, S/O. JOY, AGED 30 YEARS, PEEDIKAPARAMBIL HOUSE, KARIKODU P.O, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT-686610. 11 FR. BAIJU, S/O. THOMMAN MARKOSE,AGED 32 YEARS, KUREEKKUNNEL HOUSE, KARIKODE P.O, MULAKKULAM VILLAGE, VAIKOM, VAIKOM TALUK, KOTTAYAM DISTRICT-686610. R1-5 BY ADV. SRI.P.MARTIN JOSE R1-5 BY ADV. SRI.P.PRIJITH R1-5 BY ADV. SRI.THOMAS P.KURUVILLA R1-5 BY ADV. SRI.R.GITHESH R1-5 BY ADV. SRI.MANJUNATH MENON** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.99 OF 2019 4** ## **JUDGMENT** The defendants in O.S.No.12 of 2002 are in this appeal before this Court, impugning the judgment and decree of the said Court, as per which, the 1934 constitution of the Malankara Syrian Orthodox Church ('Malankara Church' for short) has been found applicable for the governance and control of the St.Thomas Bethel Church – the Ist appellant herein. 2. Interestingly, Shri.Sunil Jacob – learned counsel appearing for the appellants, concedes that going strictly by the judgment of the Hon'ble Supreme Court in _**P.M.A.Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]**_ and _**K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and Others [2017 (3) KLT 261 SC],**_ the decree cannot be faulted since it is conceded that the Ist appellant - Church is a part of the Malankara Church. He, however, says that the appellants are aggrieved because the suit was ## **RFA.No.99 OF 2019 5** allowed to be instituted by the learned District Judge even before their petition seeking leave under Section 92 of the Civil Procedure Code (CPC for short) had been allowed. He points out that the petition seeking leave was filed before the District Court, Kottayam and that it was then transferred to the District Court, Ernakulam. 3. Shri.Sunil Jacob says that the transferor Court, thereupon, allowed the institution of the suit by its order, dated 29/05/2001, even before the leave had been granted under Section 92 of the CPC. He says that this is manifest from the fact that such leave was granted only in the year 2004, through the order in I.A.No.1771 of 2004. He alleges that the original application for leave, filed in the year 2001 along with the plaint, appear to have been renumbered in the year 2004, leading to grant leave thereunder and he says that this is completely impermissible, going by the various judgments ## **RFA.No.99 OF 2019 6** of this Court, including in _**Ramachandran Unnithan vs** ._ _**Sree Bhagavathi**_ _**Thriporittikkavu Bhagavathi Kshethram [2017 (2) KLT 522]** ._ He thus contents that the judgment and decree of the Trial Court is incompetent, since it has been issued in a suit which had been instituted without obtaining prior leave under Section 92 of the CPC. 4. In response to the afore submissions of Shri.Sunil Jacob, learned counsel for the appellants, the learned senior counsel Shri.S.Sreekumar, instructed by Shri.Martin Jose, learned counsel for the respondents, asserted that these submissions are no longer relevant, since the Hon'ble Supreme Court has made it very clear that subsequent to its views in _**K.S.Varghese (Supra),**_ all individual Churches, which are constituents of the Malankara Church, can only be governed by its 1934 Constitution and no other. He further pointed out that in Paragraph 184 of the ## **RFA.No.99 OF 2019 7** _**K.S.Varghese (Supra)**_ it has been ineluctably declared that all constituent Churches under the Malankara Church can only be governed and controlled under the 1934 Constitution of the latter and therefore, that it is not necessary for framing a new scheme under Section 92 of the CPC. 5. It is indubitable that the declaration of the Hon'ble Supreme Court to the afore effect, is specifically available in Paragraph 184(XXVI) of the _**K.S.Varghese**_ _**(Supra)**_ and obviously, therefore, at present, the relevance of leave under Section 92 of the CPC becomes attenuated to a large extent, particularly because, whether leave is granted or otherwise by the Court, the final result is that the Church - once admitted or established to be a part of the Malankara Church - will have to be governed by the 1934 Constitution of the latter and in no other manner. 6. In this context, even if I am to find ## **RFA.No.99 OF 2019 8** some force in the submissions of Shri.Sunil Jacob, which I may be normally persuaded to do, going by the settled position of law involved in the interpretation of Section 92 of the CPC, it would be no real consequence because, as has also been admitted by Shri.Sunil Jacob, the 1[st] appellant church can now be governed only by the 1934 constitution of the Malankara Church. 7. However, I certainly deem it appropriate to notice the specific allegation of Shri.Sunil Jacob that the suit appears to have been instituted even before a leave under Section 92 of the CPC had been granted. Since this was granted in the year 2001, at the time when _**P.M.A.Metropolitan (Supra)**_ was in force - the declarations in which have been restated in _**K.S.Varghese (Supra)**_ - even though, from the academic angle of Section 92 of the CPC, this may be found to be in error it would still have little bearing in the facts of this case. ## **RFA.No.99 OF 2019 9** 8. In the case at hand, the impugned decree cause no prejudice to any party because leave under Section 92 of the CPC in the present context would not be necessary as far as the Church in question is concerned, and even if it is found otherwise, it would only be an automatic formality and nothing more. 9. Be that as it may, when I am considering the validity of the judgment and decree when _**K.S.Varghese (Supra)**_ holds the field, there is no doubt that the controversy between the parties have been fully _s_ ettled and that whatever be the rival contentions among them, the fact remains that the Trial Court could have only decreed the suit, allowing the governance of the 1[st] appellant under the 1934 Constitution of Malankara Church. 10. After I dictated this part of the judgment, Shri.Sunil Jacob, learned counsel, interjected to request that it may be ## **RFA.No.99 OF 2019 10** clarified that his clients and other members of the erstwhile 'Jacobite Faction' be permitted to participate in the governance of the Church under the 1934 Constitution. 11. I am afraid that this is not an issue that arises directly in this appeal; and in any event of the matter, I am of the firm view that whether I clarify it or otherwise, such rights are available to all members of the parish, as long as they comport themselves in terms of the judgment of the Hon'ble Supreme Court in _**P.M.A.Metropolitan**_ ## **(Supra)** and _**K.S.Varghese (Supra).**_ This appeal is thus dismissed; however, without making any order as to costs and directing the parties to suffer their respective costs taking note of the rather peculiar circumstances involved. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/24.8.2020**