Tr.P(C) No.475 of 2017

**'C.R '** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941 Tr.P(C).No.475 of 2017** **OS 686/2012 of 1[st] ADDITIONAL SUB COURT, PALAKKAD.** ## **PETITIONERS/PLAINTIFFS :** - **1 U.VARKEY, AGED 67 YEARS, KOCHUPURAKKAL HOUSE, KANAKKANTHURUTHY P.O., KIZHAKKANCHERRY VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT.** - **2 KURIAN, 77 YEARS, S/O VARKEY, KANNAKANTHURUTHY VILLAGE, PANNIYAMKARA P.O., PALAKKAD DISTRICT.** - **3 VARGHESE, 65 YEARS, S/O MATHAI, IKKARAKUDI HOUSE, PANNIYAMKARA P.O., VADAKKUMCHERRY, PALAKKAD DISTRICT.** - **4 FR. SAJAN KANJIRAMPARA, AGED 45 YEARS, GEDSEEMON BISHOP'S HOUSE, MANNUTHY P.O., OLLUKKARA VILLAGE,THRISSUR DISTRICT.** **BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY** ## **RESPONDENTS/DEFENDANTS & ADDL.DEFENDANTS 6 TO 8 :** **1 ISSAC NEDIVELIL PUTHENPURA,48 YEARS, S/O ABRAHAM, KATTILPOOVAM HOUSE, THRISSUR DISTRICT-680 001.** Tr.P (C) No.475 of 2017 2 - **2 KURIAKOSE, 48 YEARS, S/O GEORGE, CHALAKKATTUKUZHI HOUSE, NOW HIMSELF CALLED KURIAKOSE MAR EUSEPHIOUS,YACOBAYA SURIANI CHRISTANI SABA, BETHAL BISHOP HOUSE, PATTIKKAD P.O.,THRISSUR DISTRICT-680 652.** - **3 THOMAS MAR DIONYSIUS, 86 YEARS, S/O MATHU, STYLING HIMSELF AS BESELIOUS THOMAS I, RESIDING AT PARTRIARCHAL CENTRE, PUTHENCRUZ VILLAGE,ERNAKULAM DISTRICT-682 308.** - **4 BENNY, 40 YEARS, S/O MATHAI, NEDUMPURAM HOUSE,PANNIYANKARA P.O., KANNAMPRA VILLAGE,PALAKKAD DISTRICT-678 683.** - **5 BABU, 35 YEARS, IYYAMBILLY HOUSE, PANNIYANKARA P.O., VADAKKUMCHERRY, PALAKKAD DISTRICT-678 683.** - **6 FR. C.V ABRAHAM, S/O VARGHESE, 61 YEARS, CHAKKALAKKAL HOUSE, CHELAKKARA, PULAKODU P.O., THRISSUR DISTRICT-680 586.** - **7 K.J BABU, S/O JOHN 56 YEARS, KOLUTHAL HOUSE,ILLAVAMPADAM P.O., KIZHAKKANCHERRY, PALAKKAD DISTRICT-678 709.** - **8 K.K. MATHAI, S/O MATHEW, 68 YEARS, KODIMATTATHIL HOUSE, VADAKKANCHERRY, PALAKKAD DISTRICT-678 683.** **BY ADVS. SRI.ABE RAJAN SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Tr.P (C) No.475 of 2017 3 **' C.R '** A.HARIPRASAD & T.V.ANILKUMAR, J J. -------------------------------------- Tr.P (C) No.475 of 2017 -------------------------------------Dated this the 17th day of June, 2019 ## O R D E R ## A.HARIPRASAD, J. Heard the learned counsel for the petitioners and contesting respondents. 2. This matter is placed before us pursuant to a reference order passed by a learned Single Judge. 3. Short facts, for answering the reference, are as follows : Plaintiffs in O.S No.686 of 2012 before the Additional Sub Court, Palakkad, sought transfer of the suit to the First Additional District Tr.P (C) No.475 of 2017 4 Court, Ernakulam, on the ground that the suit is one pertaining to Malankara Church disputes and the First Additional District Court, Ernakulam, is a special court constituted for trial of such cases. 4. Learned Single Judge, on noticing some conflicting orders passed by this Court on identical transfer petitions filed under Section 24 of the Code of Civil Procedure, 1908 (in short 'C.P.C'), referred the case to be decided by a Division Bench regarding the necessity of transfer of Malankara Church Cases from different courts to the First Additional District Court, Ernakulam. 5. Special court for adjudication Malankara Church disputes came into existence pursuant to a Government Order viz; Government of Kerala G.O.Rt.1532/76/Home dated 30th June, 1976. It reads thus : **==> picture [63 x 11] intentionally omitted <==** “ The Registrar of High Court has recommended that one Additional Sessions Court may be established Tr.P (C) No.475 of 2017 5 at Ernakulam exclusively for the trial of cases connected with Malankara Church disputes now pending in various courts of the State. 2. Government accept the recommendation and are pleased to accord sanction for establishing a special court at Ernakulam with the following staff exclusively for trial of cases concerning Malankara Church disputes till the end of February, 1977. Additional District & Sessions Judge 1 on Rs.1400-1900 U.D.Clerk 1 on Rs.275-525 L.D.Clerks 2 on Rs.239-385 Stenographer 1 on Rs.240-540 Peons 3 on Rs.196-265 The expenditure will be not from the contingency fund initially to be recouped later by moving for a supplementary grant. By order of the Governor, Sd/S.NARAYANASWAMY, SPECIAL SECRETARY. ” Tr.P (C) No.475 of 2017 6 6. It is noteworthy, then more than 400 suits were pending in different courts in the State in respect of various disputes in Malankara Church. In order to have a uniform view in those cases, one special court was constituted as per the aforementioned Government Order. As per the notification above, term of the court would have ended by the end of February, 1977. However, it was later extended till February, 1982. 7. It is seen from the records placed before us that on 16-03-2017, the Registrar (Subordinate Judiciary) of this Court had addressed the Additional Chief Secretary, Home (C) Department, Government of Kerala, requesting to issue necessary orders making the First Additional District & Sessions Court, Ernakulam, permanent with retrospective effect from 01-03-1982 and also to designate the said court as a Special Court for trial of cases connected with Malankara Church disputes from 01-03-1982 till all cases relating to Malankara Church Tr.P (C) No.475 of 2017 7 disputes are disposed of. The Government is yet to take a decision thereon. 8. Learned counsel on both sides produced a common judgment in O.P(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 dated 15th February, 2018, wherein one of us (A.Hariprasad, J) directed transfer of a suit filed before the Munsiff's Court, Muvattupuzha, to the First Additional District Court, Ernakulam, for trial and disposal. In paragraph 17 of the aforementioned common judgment, it has been made clear as follows : “ 17. The notification constituting the Special Court specifically shows that the court was established for trial of Malankara Church Cases. It has been consistently held that trial in a civil case begins by framing issues. For the aforementioned reasons, I find no bar for any party to institute a suit involving Malankara Church dispute in a civil court having jurisdictional competence. For the same reason, I find that there is no bar in passing interlocutory orders in such suits. However, this will not Tr.P (C) No.475 of 2017 8 affect the right of parties to move for a transfer of the case by invoking Section 24 of the Code to the Special Court for trial of Malankara Church Cases as it too has jurisdiction to try such disputes.” 9. We also find another judgment passed by a learned Single Judge of this Court on 13th November, 2008, in Tr.P (C) No.215 of 2008, rejecting the request for transfer of O.S No.287 of 2008 filed before the Munsiff's Court, Perumbavoor to the First Additional District Court, Ernakulam, citing various reasons. 10. Another learned Single Judge of this Court in Tr.P (C) No.550 of 2014 passed an order on 14th November, 2014 allowing transfer of such a suit from Sub Court, Ottapalam to the First Additional District Court, Ernakulam. 11. Yet another learned Single Judge in Tr.P (C) No.603 of 2013 dated 20th January, 2014, allowed transfer of O.S No.442 of 2012 from Sub Court, Palakkad to the First Additional District Court, Ernakulam. The Tr.P (C) No.475 of 2017 9 learned Single Judge, therefore, was of the view that in the light of these conflicting decisions, there should be a clear pronouncement on the subject. 12. After hearing the learned counsel on both sides and on perusing the binding judgments rendered by the apex court on the subject, we are of the view that in the present scenario, transfer of Malankara Church cases, properly instituted before various courts having jurisdiction, need not be transferred to the First Additional District Court, Ernakulam, as a matter of course for the following reasons. 13. The Government Order referred to above, dated 30-06-1976, was necessitated because at that time more than 400 cases relating to Malankara Church disputes were awaiting decision in various courts in the State. As mentioned above, in order to have a uniform view on the subject, an Additional District Court was designated as the Special court for trial and disposal of Malankara Church disputes. Even the notification mentioned above would make it clear that what was contemplated at that Tr.P (C) No.475 of 2017 10 time was only the trial and disposal of Malankara Church Cases should be by one court and not institution of such cases to be centralized to one court. In other words, it is evident from the Government order that the rules relating to institution of suits contained in the C.P.C, regarding the territorial and pecuniary limits of jurisdiction are intended to remain unaffected by it. 14. We are of the clear view that no court in this country can take a different view on the subject reckoning the binding pronouncements by the apex court in P.M.A Metropolitan and Others v. Moran Mar Marthoma and Another (A.I.R 1995 S.C 2001), Varghese v. St.Peter's and Paul's Syrian Orthodox Church ( 2017(3) K.L.T 261) and Mathews Mar Koorilos v. Pappy (2018 (3) K.L.T 990) . Now it is very clear that the Supreme Court has categorically stated as to what are the rights and obligations of the disputants in Malankara Church cases and no court in this country can take a different view on the subject. It has been clarified by the Supreme Tr.P (C) No.475 of 2017 11 Court by an order passed on 19-04-2018 in S.L.P Nos.33156-33159/2014 as follows : “ Leave granted. As the controversy in question has been finally decided in the case of K.S.Verghese vs. St.Peter's & Paul's Syrian Orth. & Ors. in C.A No.3674 of 2015 etc. decided on 3rd July, 2017 [2017 (15) SCC 333], in which it has been laid down that 1934 Constitution holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in terms of the above judgment. Let all the concerned courts and authorities act in terms of the judgment. Let there be no multiplicity of the litigation on this aspect any more in the various courts. The decision rendered in representative suit is binding on all.” 15. In the light of the above direction by the apex court, we are of the opinion that there need not be anymore routine transfer of Malankara Tr.P (C) No.475 of 2017 12 Church cases instituted before competent courts elsewhere to the First Additional District Court, Ernakulam, for trial and disposal, as none of the courts in the State can legally take a view against the law declared by the Supreme Court in the precedents mentioned above. We are also of the view that such transfer of cases could result in inconveniences to parties, especially when the suits are instituted at places far away from Ernakulam. Question of taking divergent views by different courts will never arise because of the binding precedents by the apex court. 16. Therefore, we answer the reference holding that jurisdiction of this Court under Section 24 of C.P.C need not be invoked for transfer of Malankara Church cases from different courts to the First Additional District Court, Ernakulam in the present day context fearing conflict of judicial opinions. 17. We make it clear that the observations above will not eclipse or impede the power of this Court under Section 24 C.P.C to transfer such a Tr.P (C) No.475 of 2017 13 case in an extra ordinary circumstance. We also make it clear no pronouncement on the merits of the cases pending in various courts has been made in this order. It is also made clear that Malankara Church disputes pending in all the Subordinate Courts shall be disposed in obedience to the directions by the Supreme Court as expeditiously as possible. Reference answered accordingly. In the light of the above observations, we find no merit in the transfer petition. Hence, we dismiss the transfer petition. A. HARIPRASAD, JUDGE. T.V.ANILKUMAR, JUDGE. amk Tr.P (C) No.475 of 2017 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE P1 TRUE COPY OF G.O.RT 1532/76/HOME DATED 30.06.1976. ANNEXURE P2 TRUE COPY OF THE PLAINT IN O.S. NO. 686/2012 ON THE FILES OF THE 1ST ADDL. SUBORDINATE JUDGE'S COURT, PALAKKAD.** **RESPONDENT'S EXHIBITS : NIL.**