VARKEY VARGHESE ERUMALA HOUSE & ADDL. A2 TO ADDL. A8 v. ST. GEORGE ORTHODOX HYBRON CHURCH, KOTTAPPADY & OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **AS.No. 260 of 1999** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-1998 IN OS NO.13/1977 of I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/2ND PLAINTIFF:** **VARKEY VARGHESE ERUMALA HOUSE, KUTTILATHI KARA, ERAMALLOOR VILLAGE.** ## **ADDITIONAL APPELLANTS A2 TO A8 IMPLEADED:** > ADDL.A2 **RAJAN JOSEPH, S/O.JOSEPH E.V., AGED 56, IRUMALA (H), IRUMALAPPADY, PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** ADDL.A3 **MATHEW JOSEPH, S/O.E.P.JOSEPH, AGED 50, IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** ADDL.A4 **MATHEW JOSEPH @ ANIYAN, S/O.E.V.JOSEPH, AGED 62,IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** **ELDHO PAUL, S/O.PAULOSE, AGED 52,** ADDL.A5 **IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** > ADDL.A6 **BENNY PAUL, S/O.PAULOSE, AGED 50, IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** ADDL.A7 **MATHEW VARGHESE, S/O.E.M.VARGHESE, AGED 48,IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** **JOSEPH PAULOSE, S/O.PAULOSE, AGED 60,** ADDL.A8 **IRUMALA (H), PANIPRA P.O., KOTHAMANGALAM, PIN - 686 692.** **ADDITIONAL APPELLANTS A2 TO A8 IMPLEADED VIDE ORDER DATED 18.02.19 IN IA 2832/11** A.S.No.260 of 1999 & Cross Objection No.119 of 2005 2 ## **A1 BY ADVS. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM** **ADDL.A2 TO ADDL.A8 BY ADV.SRI.S.SREEKUMAR (SENIOR ADVOCATE)** ## **RESPONDENTS/DEFENDANTS 1, 2 & 4 TO 8:** - **1 ST.GEORGE ORTHODOX HYBRON CHURCH, KOTTAPPADY, NAGANCHERRY KARA, KOTTAPPADY VILLAGE.** - **2 PAILY DAVID KATHANAR SRAMBIKUDI, EDANATTU KARA,ERAMALLOOR VILLAGE.** - ***3 OUSEPH VARGHESE KATHANAR ERUMALA, KUTTILANJI. STRUCK OFF** - *****4 ITHAPPIRI MATHU (DIED) MANNARAPRAYIL, VADANCHERI KARA,KOTTAPPADY VILLAGE.** - *****5 MATHEW PAULOSE (DIED) CHEMBAKOTTU KUDIYIL, AYIROOR KARA,KOTTAPPADY VILLAGE.** - *****6 K.O.GEORGE (DIED) KUZHIKKADAN, AYIROOR KARA,KOTTAPPADY VILLAGE.** - *****7 VARGHESE ITTOOP (DIED) MARANGATTU, PAYIPRA KARA,KOTTAPPADY VILLAGE.** - ***ADDL.R8 IMPLEADED:** - ***ADDL. V.REV.THOMAS PAUL RAMBAN,** - **R8 S/O LATE M.T.PAUOLSE, AGED 46 YEARS, MARACHERIL HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM-686691.** - ****ADDL.RESPONDENTS 9 TO 15** - **9 GEORGE MV,S/O.VARGHESE, MYLUMKAL HOUSE, PANIPRA POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **10 KP GEEVARGHESE @ KUNJU,** - **S/O.POULOSE, KUZHIKKATTIL HOUSE, PANACHIYAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** A.S.No.260 of 1999 & Cross Objection No.119 of 2005 3 - **11 GEORGE ND, S/O.DAVID, NJATTUMKALAYIL HOUSE, AYIROOPPADAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **12 KV ELDHO @ KUNJU** - **S/O.GEEVARGHESE, KALLUVETTIKUZHY HOUSE, KOTTAPPADY POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **13 CHERIANKUNJU VV,** - **S/O.VARGHESE, VATHYIATTU HOUSE, KOTTAPPADY POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **14 KP KURIYAKOSE,** - **S/O.POULOSE, KUZHIKKATTIL HOUSE, PANACHIYAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **15 PP POULOSE, S/O.POULOSE, POLIYEKKUDY HOUSE, AYIROOPPADAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** ***NAME OF R3 IS STRUCK OFF FROM THE PARTY ARRAY AND ADDL.R8, THE PRESENT VICAR IS IMPLEADED AS PER ORDER DT.5.6.18 IN IA NOS.597 AND 598/2018** ****ADDL.RESPONDENTS 9 TO 15 ARE IMPLEADED VIDE ORDER DATED 08.08.2018 IN IA NO.1268/18.** *****IT IS RECORDED THAT R4 TO R7 IN THE APPEAL ARE NO MORE AND NO STEPS NEED BE TAKEN IN THIS MATTER SINCE IT IS A CHURCH CASE AS PER ORDER DATED 11.09.2018 IN A.S.** **BY ADVS.** **R2 & R9 TO R15 BY ADVS.SRI.SAJAN VARGHESE K. SRI.LIJU. M.P.** **R1 & R2 BY ADVS.SRI.P.VISWANATHAN (SENIOR ADVOCATE) SRI.VPK.PANICKER ADDL.R8 BY ADVS.SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06.02.2019, ALONG WITH CO.NO.119/2005, THE COURT ON 18.02.2019 DELIVERED THE FOLLOWING:** A.S.No.260 of 1999 & Cross Objection No.119 of 2005 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** **CO.No. 119 of 2005 IN AS.NO.260/1999** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-1998 IN OS NO.13/1977 of I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **CROSS OBJECTOR/SEVENTH RESPONDENT:** **VARGHESE ITTOOP, MARANGATTU, PAYIPRA KARA, KOTTAPADY VILLAGE.** - ***ADDL.CROSS OBJECTORS 2 TO 8 IMPLEADED:** - **2 GEORGE MV, S/O.VARGHESE, MYLUMKAL HOUSE, PANIPRA POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **3 KP GEEVARGHESE @ KUNJU, S/O POULOSE, KUZHIKKATTIL HOUSE, PANACHIYAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **4 GEORGE ND, S/O.DAVID, NJATTUMKALAYIL HOUSE, AYIROOPPADAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **5 KV ELDHO @ KUNJU, S/O.GEEVARGHESE, KALLUVETTIKUZHY HOUSE, KOTTAPPADY POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **6 CHERIANKUNJU VV,** - **S/O.VARGHESE, VATHYIATTU HOUSE, KOTTAPPADY POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **7 K.P.KURIYAKOSE, S/O.POULOSE, KUZHIKKATTIL HOUSE, PANACHIYAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **8 P.P.POULOSE** - **S/O.POULOSE, POLIYEKKUDY HOUSE, AYIROOPPADAM POST, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** A.S.No.260 of 1999 & 5 Cross Objection No.119 of 2005 ***ADDL.CROSS OBJECTORS 2 TO 8 ARE IMPLEADED VIDE ORDER DATED 08.08.2018 IN IA NO. 1267/18.** **BY ADVS.SRI.SAJAN VARGHESE SRI.LIJU M.P.** ## **RESPONDENTS/APPELLANTS:** - **1 VARKEY VARGHESE,ERUMALA HOUSE, KUTTILATHI KARA, ERAMALLOOR VILLAGE.** - **2 P.E.VARGHESE PUNNAKAPPILLIL HOUSE, KUTTIKALANJIKKARA, THRIKARIYOOR, KOTHAMANGALAM.** - **3 SAJI JOSEPH, SON OF JOSEPH AGED 43 YEARS, ERUMALA HOUSE, PAYIPARA P.O.** **BY ADVS. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019 ALONG WITH A.S.NO.260 OF 1999, THE COURT ON 18.02.2019 DELIVERED THE FOLLOWING:** A.S.No.260 of 1999 & Cross Objection No.119 of 2005 6 ## **A.HARIPRASAD, J.** **-------------------------------------A.S.No.260 of 1999 & Cross Objection No.119 of 2005 -------------------------------------Dated this the 18[th] day of February, 2019** ## **COMMON JUDGMENT** 2[nd] plaintiff in O.S.No.13 of 1977 before the I Additional District Court, Ernkulam (Special Court for Malankara Church Cases) is the appellant. Defendants 1, 2 and 4 to 8 were the original respondents. Later, name of 3[rd] respondent was struck off and additional 8[th] respondent was impleaded. Subsequently additional respondents 9 to 15 were also impleaded. 2. A cross objection has been filed by the 7[th] respondent in the appeal. Later, additional cross-objectors 2 to 8 were impleaded. 3. Short facts relevant for disposal of the appeal and the cross objection are as follows: Plaintiffs contended that Kottappady St.George Orthodox Hybron Church is a part and parcel of Angamaly Diocese of Malankara Orthodox Syrian Church. Church is impleaded as the 1[st] defendant in the suit. Plaintiffs are parishioners of the Church. 2[nd] defendant was the vicar of that Church, duly appointed by the Diocesan Metropolitan. Since the 2[nd] defendant acted in violation of the orders of the Metropolitan, he was removed from vicarship. In his place the 3[rd] defendant was appointed as vicar. 4[th] defendant is the assistant priest and defendants 5 to 8 are the trustees and members of the managing A.S.No.260 of 1999 & Cross Objection No.119 of 2005 7 committee of the Church. The suit is instituted in a representative character invoking the provisions under Order I Rule 8 of the Code of Civil Procedure, 1908 (in short, “Code”). 1[st] defendant Church and its assets are being administered under 1934 Malankara Church Constitution and also under the directions of the Metropolitan of Angamaly Diocese. According to the plaint case, the supreme head of Malankara Orthodox Syrian Church is the Catholicos of East. On 16.03.1974 the 2[nd] defendant convened a meeting of the managing committee of the 1[st] defendant Church and took some decisions against the authority of the Catholicos as well as 1934 Malankara Church Constitution. It was therefore the 2[nd] defendant was removed from the vicarship of the 1[st] defendant Church and 3[rd] defendant was appointed in his place. However, the 3[rd] defendant was not allowed to function as vicar. Therefore the plaintiffs sought for a declaration that the meeting held on 16.03.1974 and 26.03.1974 and the decision taken in those meetings are illegal and are liable to be set aside. Plaintiffs are also entitled to get an injunction restraining the defendants 2 to 8 from administering the 1[st] defendant Church and its properties against the provisions of the 1934 Malankara Church Constitution and against the directions by the Catholicos. 4. Defendants 2, 5, 6 and 7 jointly filed a written statement. They contended that the 1[st] defendant Church is an autonomous one. 1[st] defendant Church as well as its assets are being administered in accordance with the registered agreement dated 05.06.1070 ME. The A.S.No.260 of 1999 & Cross Objection No.119 of 2005 8 Patriarch of Antioch is the head of the Jacobite faction who administer the plaint Church. They disputed authority of the Catholicos over the plaint Church. 5. 3[rd] defendant filed a written statement supporting the plaint averments. 2[nd] defendant was duly removed from vicarship of the Church. 3[rd] defendant was appointed as vicar. Though he conducted services in the plaint Church on 24.03.1974, he was prevented from conducting services thereafter. 6. 4[th] defendant filed a written statement supporting the plaint claim. 8[th] defendant filed a statement adopting the contentions of defendants 2, 5, 6 and 7. 7. Originally 17 issues were framed. But, in the light of the decision of the Apex Court in **P.M.A.Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001)** the court below raised only two issues regarding the claimability of a declaration relief and permanent prohibitory injunction relief. Evidence in this case consists of testimony of PW1 and DW1 and Exts.A1 to A3 and B1 to B12. 8. Heard the learned senior counsel appearing for the appellant and the supporting respondents and also the learned counsel for the contesting respondents/cross objectors. 9. Although in the plaint multiple declaratory and prohibitory injunction reliefs are claimed, the court below, reckoning the fact that most of the issues have been decided by the apex Court in A.S.No.260 of 1999 & 9 Cross Objection No.119 of 2005 **P.M.A.Metropolitan** 's case, granted only a limited relief in the following manner: _“In the result, it is declared that plaint church and its assets are to be administered in accordance with the provisions of 1934 constitution. No other reliefs are granted. Suit is thus decreed in part.”_ Appellant is aggrieved by the fact that the entire reliefs claimed was not granted in the form in which they are sought for. Whereas the respondents/cross objectors are aggrieved for granting the relief of declaration by the trial court. 10. It is the definite case of the plaintiffs that the Church in dispute is an integral part of Malankara Church to be administered under the 1934 Constitution. Ext.A1 is the Church constitution. On the contrary, the contesting defendants have set up a case that the 1[st] defendant is an independent Church or an autonomous one. 1[st] defendant as well as its assets are to be administered in accordance with a registered agreement (udampadi) dated 05.06.1070 ME. From the list of documents appended to the impugned judgment, I find that the said agreement was not produced before the trial court. According to the learned senior counsel for the appellant, even if such an udampadi is found to be in existence, the contention of the defendants cannot be accepted for the reason that in **P.M.A.Metropolitan** 's case and in **K.S.Varghese and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church and others (2017** A.S.No.260 of 1999 & 10 Cross Objection No.119 of 2005 **(3) KLT 261)** the apex Court has clearly held that all Parish Churches within the fold of Malankara Church should be administered by the 1934 Constitution. 11. Per contra, learned counsel for the contesting defendants strenuously argued that none of the decisions by the apex Court in relation to the Malankara Church dispute ever prohibited a contention regarding the existence of an independent Church. **P.M.A.Metropolitan** 's case had gone up before the Supreme Court against a judgment by a division bench of this Court in A.S.Nos.331 and 358 of 1980 and 362 of 1990 decided on 01.06.1990. In the judgment rendered by the division bench, specific aspects regarding Simhasanam Churches, Knanaya Churches and Churches established by and attached to Evangelistic Association of East were considered. According to the learned counsel for the contesting respondents, the findings of the division bench have been approved by the Supreme Court in **P.M.A.Metropolitan** 's case. Insofar as Simhasanam Churches are concerned, it was held by the division bench that such Churches are to be treated as Churches directly under the Patriarch and therefore Catholicos has no authority to appoint vicars in Simhasanam Churches. Knanaya Churches are also found to be outside the purview of Malankara Churches. With respect to the Churches established by Evangelistic Association of East, it was found that these Churches are not constituent parts of Malankara Sabha. Since these findings are affirmed in **P.M.A.Metropolitan** 's case, it is argued by the A.S.No.260 of 1999 & 11 Cross Objection No.119 of 2005 learned counsel that the contesting defendants' case that the plaint Church is an independent Parish Church has to be accepted and the plaintiff should be non-suited. As submitted by the learned senior counsel for the appellant, this contention cannot be accepted for various reasons. Primarily, the defendants also claimed that this is a Parish Church following the faith of Supremacy of the Patriarch of Antioch in spiritual and temporal matters. None of the parties has a case that the Church in dispute is a Simhasanam Church. Admittedly it is a Parish Church. Both the rival groups would contend that it belonged to the parishioners following the path of different spiritual heads, viz., one group followed the Patriarch of Antioch and the other the Catholicos of East. In this regard, the claim of the defendants under an udampadi of 1070 ME cannot be upheld in the light of the specific finding in **K.S.Varghese** 's case. 12. It has been unequivocally held in **K.S.Varghese** 's case in paragraph 184 Clause (xxii) as follows: _“(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.”_ A.S.No.260 of 1999 & 12 Cross Objection No.119 of 2005 Regarding framing of a scheme under Section 92 of the Code in paragraph 184 Clause (xxvi) the apex Court held as follows: _“(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under S.92 of the C.P.C.”_ Therefore, the contention of the defendants that the plaint Church is not a Parish Church to be administered under 1934 Malankara Church Constitution cannot be countenanced. Moreover, a dispute raised regarding the conflict in the views taken by the Supreme Court in **P.M.A.Metropolitan** 's case and **K.S.Varghese** 's case has been finally settled in **Mathews Mar Koorilos v. Pappy (2018 (3) KLT 990)** by a three Judge bench of the Supreme Court. Hence, I am of the definite view that the contention raised by the defendants that the plaint Church is an independent Parish Church cannot be accepted. 13. Another contention raised by the contesting defendants is that the suit is not maintainable as it is not instituted under Section 92 of the Code. It is to be noticed at the outset that the suit could not have been instituted under Section 92 of the Code before a Munsiff's Court since it is not a principal civil court of original jurisdiction. If this Court finds that the suit should have been instituted under Section 92 of the Code, then the filing of suit before the Munsiff's Court should be regarded as filing of the same before an incompetent court. But the question whether A.S.No.260 of 1999 & 13 Cross Objection No.119 of 2005 a suit under Section 92 of the Code is required to be instituted or not has to be decided in the light of the subsequent developments too. As mentioned above, in **K.S.Varghese** 's case the Supreme Court has clearly held in paragraph 184 Clause (xxvi) that 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 Code. All these observations are made by the Supreme Court in suits instituted under a representative character and it proclaims the general character of the Parish Churches coming within the 1934 Malankara Church Constitution. For this reason, I am unable to accept the contention regarding essentiality of a suit under Section 92 of the Code. Secondly, it has been held by a catena of decisions by the Supreme Court and this Court that what is relevant for attracting Section 92 of the Code is the pleadings and the nature of reliefs claimed in the plaint. As mentioned above, the reliefs claimed in the suit are declaration of status of religious dignitaries and also that the Church is to be administered under 1934 Malankara Church Constitution. Contention raised by the learned counsel for the contesting defendants based on the decision in **Charan Singh and another v. Darshan Singh and others (AIR 1975 SC 371)** that a suit under Section 92 of the Code was required in this case cannot be accepted. It is true that if any of the reliefs claimed in the plaint are akin to the reliefs falling under the Clauses (a) to (g) of Section 92(1) of the Code, then it should have been said that a proper suit under Section 92 was required. On A.S.No.260 of 1999 & 14 Cross Objection No.119 of 2005 going through the reliefs claimed in the plaint, it can be seen that the declaratory and prohibitory injunction reliefs of a personal nature and character alone are asked for and therefore the decision has no application in this case. In **S. P. Saraswati v. Ramji Tripathi ((1974) 2 SCC 695)** the Supreme Court in candid terms has explained the principles regarding Section 92 of the Code. If we analyse the facts in this case with reference to the above decision, it can be seen that the suit claim does not fall within Section 92 of the Code. Therefore this contention of the contesting defendants also should fail. 14. Although the learned senior counsel for the plaintiff contended that refusal of the entire declaratory and injunction reliefs cannot be justified, I am of the view that the court below cannot be blamed for refusing to grant the entire reliefs claimed in the plaint in the wake of the decision in **P.M.A.Metropolitan** 's case, which came to be pronounced at that point in time and the subsequent decisions in **K.S.Varghese** 's case and **Mathews Mar Koorilos** 's case, which too are relevant at this point in time. At the most, the modification required is only in regard to the grant of prohibitory injunction against the contesting defendants from doing any act against the provisions of 1934 Malankara Church Constitution. Rest of the prohibitory injunction reliefs have become either redundant or unworkable in the light of the subsequent decisions of the apex Court in relation to Malankara Church disputes. In the result, the appeal is partly allowed. The decree passed A.S.No.260 of 1999 & 15 Cross Objection No.119 of 2005 by the trial court is confirmed. In addition to that, a prohibitory injunction relief is granted against the contesting respondents (cross objectors) to the extent that they shall not interfere with the administration of the Church in accordance with 1934 Malankara Church Constitution. Rest of the reliefs claimed are declined. The cross objection is also dismissed finding that it has no merit. Parties are directed to suffer their costs. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** ## **cks** A.S.No.260 of 1999 & Cross Objection No.119 of 2005 16 ## **A.Hariprasad, J.** **A.S.No.260 of 1999 & Cross Objection No.119 of 2005** **COMMON JUDGMENT** **18[th] February, 2019**