# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM**
**WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946**
**RSA NO. 292 OF 2024**
**AGAINST THE JUDGMENT DATED 22.07.2023 IN AS NO.11 OF 2021 OF SUB COURT,**
## **MUVATTUPUZHA**
**ARISING OUT OF THE JUDGMENT DATED 29.03.2021 IN OS NO.629 OF 2017 OF MUNSIFF**
## **COURT,MUVATTUPUZHA**
## **APPELLANTS/APPELLANTS/APPELLANTS/4TH & 5TH DEFENDANTS:**
**1 V.C KURIAN AGED 63 YEARS S/ O CHERIAN RESIDING AT VAZHATHOTTATHIL HOUSE MIIDAVOOR, VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK, PIN - 686669**
**2 REJI KURIAN AGED 55 YEARS S/O KURIAN RESIDING AT PUTHENKOTTAYIL HOUSE MUDAVOOR, VELLOORKIINNAM VILLAGE MUVATTUPUZHA TALUK, PIN - 686669**
**BY ADVS. ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM AMEERA JOJO MINNU DARWIN**
## **RESPONDENTS/RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANT 1 TO 3, 6 TO 12:**
**1 FR. GEEVARGHESE KAPPIL AGED 35 YEARS S/O THOMAS KURIAN KAPPIL SHARON BHAVAN, MATHOOR KARA, CHENEERKARA VILLAGE KOZHANCHERY TALUK, PATHANAMTHITTA DISTRICT, NOW RESIDING AT BALAGRAMAM VALAYANCHIRANGARA KARA, VENGOLA VILLAGE, KUNNATHUNAD TALUK ERNAKULAM DISTRICT, PIN - 686556**
**2 ST. GEORGE ORTHODOX SYRIAN CHURCH MUDAVOOR KARA, VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK REPRESENTED BY ITS TRUSTEES REJI MATHEW, AGED ABOUT 53 YEARS, S/O MATHEW PULICKAKUDIYIL HOUSE, MUDAVOOR VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT , SUBSTITUTED THE TRUSTEE BINO PAUL, AGED ABOUT 58 YEARS, S/O PAILY RESIDING AT KOCHUKUDIYIL HOUSE MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686669**
**3 FR. ELDHOSE CHERIAN AGED 45 YEARS**
**S/O CHERIAN RESIDING AT NAMMANALY HOUSE POTHANICAD KARA, DO VILLAGE, KOTHAMANGALAM TALUK ERNAKULAM DISTRICT, PIN - 686671**
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**4 FR. JOHN MATHEW AGED 35 YEARS S/O MATHEW RESIDING AT PALATHINKAL HOUSE EZHIPRAM KARA, AIKARANADU SOUTH VILLAGE, KADAYIRIPPU P.O KOLENCHERY, KUNNATHUNAD TALUK ERNAKULAM DISTRICT, PIN - 682308**
**5 M.P. VARKEY AGED 62 YEARS S/O LATE PAULOSE MUNDACKAL HOUSE, MUDAVOOR KARA VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686669**
**6 K.V. ELDHOSE AGED 51 YEARS S/O VARKEY KORATTITIL HOUSE, MUDAVOOR KARA VELLOORKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN - 686669 7 T.M. SABU AGED 53 YEARS S/O MATHAI THENGUMPILLITHOTTATHIL HOUSE, MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686669 8 K.M BIJU AGED 45 YEARS S/O MATHAI KOLLAMMAVUDIYIL HOUSE, MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686669 9 K.M ELDHOSE AGED 44 YEARS S/O MATHAI KARIKUZHIYIL HOUSE VAZHAPPILLY KARA, VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK ERNAKULAM DISTRICT, PIN - 686669 10 FR. BIJU VARKEY AGED 49 YEARS S/O VARKEY KORATTIYIL HOUSE, MUDAVOOR KARA VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK ERNAKULAM DISTRICT, PIN - 686669 11 C.V BIJU AGED 57 YEARS S/O LATE C.V. VARKEY CHERAKUNNATH HOUSE, MUDAVOOR KARA VELLOORKUNNAM VILLAGE MUVATTUPUZHA TALUK, PIN - 686669**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17.07.2024, THE**
**COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
1. The defendants 4 & 5 have filed the present appeal, challenging the concurrent findings of the Trial Court as well as the Appellate Court.
2. The parties are referred according to their status before the trial court.
3. The plaintiff filed a suit for injunction restraining the defendants 2 to 5 and their men from causing obstruction to the plaintiff acting as the Vicar of the first defendant – Church, to the conduct religious ceremonies, to discharge the duties of the Vicar in the first defendant church, its kurisadies, cemetery, etc. in the plaint schedule property, for injunction restraining the defendants 2 to 5 from conducting elections for the management committee of the first defendant Church and for injunction restraining the 2[nd] and 3[rd] defendants from acting as the Vicar and Assistant Vicar of the Church.
4. The contentions of the plaintiff are that he is the Vicar of the first defendant - Church as per Ext.A1 Kalpana dated 18.05.2016; that the first defendant Church is a constituent parish church of Malankara Orthodox Syrian Church coming
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under the Angamaly Diocese, which is governed by 1934 Constitution of Malankara Orthodox Syrian Church; that the plaint schedule property belongs to the first defendant church; that the first defendant church and all other Malankara churches are functioning under the Catholicos of East and the Malankara Metropolitan; that in 1972 the relationship between Patriarch and Catholicos got disturbed and some people of Malankara Church joined the Patriarch and become separate parallel group within church by name Jacobite group; that this group started ordaining Bishops and Priests with the help of Patriarch and developed the governance in Malankara churches which culminated in the judgment of the Hon'ble Supreme Court in 1995; that later as per the decision of the Hon'ble Supreme Court in **Varghese.K.S v. St. Peter's & Paul's Syrian Orthodox Church [2017 (3) KLT 261 (SC)]** Malankara church is decided to be Episcopal in character and in 1934 Constitution declared to be valid and binding upon parish churches; that it is not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch; that the defendants 2 to 5 are members of Jacobite faction functioning as per Jacobite Syrian
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Christian Sabha 2002 Constitution; that the second and third defendants are not appointed as per 1934 Constitution and have no right to act as Vicar and Assistant Vicar of the first defendant church; that the Hon'ble Supreme Court in a decision in Varghese's case (supra) binds not only the parties named in the suit but also those who have interest in the Malankara church; that the priests from Jacobite Syrian Christian Sabha 2002 have neither any authority to act as the Vicar and nor to cause obstruction to the plaintiff in functioning as the Vicar of the first defendant church. The cause of action for the suit alleged is that on 14.12.2017 the plaintiff reliably came to know that the defendants 2 to 5 colluded together to take hasty steps to cause obstruction to the plaintiff in conducting religious ceremonies in the church and also that the second defendant, in collusion with the defendants 3 to 5, published a notification dated 05.11.2017 for conducting elections to the management committee of the first defendant church.
5. The defendants 2 to 4 filed a Written Statement opposing the suit prayers, contending, inter alia, that the suit is not maintainable before the Munsiff’s Court, Ernakulam as the First Additional District Court, Ernakulam is the competent court as
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O.S.No.184/1977 was pending consideration before that Court and A.S.No.635/1997 arising there from was considered by the Hon'ble High Court; that there is a status quo order in A.S.No.635/1997; that Rev.Fr.Geevarghese Thekkumcheril is the Vicar of the first defendant church since 1974 and that the present religious service is being conducted by the said Vicar and defendants 2 & 3, respectively; that the suit is hit by Section 92 of the CPC; that the plaintiff is not the duly appointed Vicar; that he is the Vicar of another church by the name St.Gregorious Catholicos Church near the first defendant and that the Metropolitan who appointed the plaintiff is a total stranger and alien to the first defendant church.
6. Subsequently, other persons supporting the original defendants were also impleaded as additional defendants 6 to 12 and supported the original defendants 1 to 5.
7. During the pendency of the suit, this Court passed Ext.A5 judgment dated 09.04.2019 in A.S.No.635/1997 upholding the claim of the Orthodox faction to which the plaintiff belonged. On the basis of the said judgment, the trial court decreed the suit, granting the injunctions sought by the plaintiff. Even though the said judgment and decree were challenged by defendants 4 & 5
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by filing appeal, the same was dismissed by the First Appellate Court confirming the judgment and decree of the Trial Court.
8. I heard the learned counsel for the appellants Sri. Alias .M.Cherian.
9. The counsel for the appellants submitted that the plaintiff had no possession over the first defendant church and its properties when the suit was filed and only after passing Ext.A5 judgment pursuant to Ext.A4 judgment granting police protection, the plaintiff and his faction come into possession of the church and the plaint scheduled property. It indicates that the cause of action claimed in the suit is not correct. At the time when the suit was filed, there was an order of status quo in the appeal filed by the Jacobite faction which led to Ext.A5 judgment and on account of the same the plaintiff could not have claimed possession over the church and the properties. The learned Counsel argued that the suit ought to have been initiated under Section 92 of the CPC and hence the same is barred. He added that the proper court for adjudication of the church dispute is the First Additional District Court, Ernakulam.
10.On going through the impugned judgment, I find that the Jacobite faction to which the defendants belong is claiming
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possession and administration of the first defendant church on the basis of the 2002 Constitution. This Court, in Ext.A5 judgment, has specifically found that the 1064 churches, including the first defendant church, are governed by the 1934 Constitution and rejected the claim of the Jacobite faction.
11.DW1, who was examined from the side of the defendants, admitted that he and the other defendants belong to the Jacobite faction. In view of the Ext.A5 judgment, the defendants could not raise any claim over the first defendant church as of now. Since the contentions in the Written Statements reveal that the Jacobite faction which includes the defendants stakes claim over the first defendant church, there is cause of action for the suit.
12. Even though the defendants contended that the plaintiff was not duly appointed, the Vicar of the first defendant church, the Trial Court as well as the Appellate Court have found that Ext.A1 Kalpana was made by the competent authority under the 1934 Constitution. Though the defendants disputed the contents with respect to Ext.A2 which is the Printed copy of the 1934 Constitution of the Malankara Orthodox Syrian Church, the defendant did not produce any other copy to prove the same. In view of Annexure A4 judgment, this Court granted Police
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protection in favour of the Orthodox faction to get administration of the first defendant church, as things stand now, the first defendant church has been in the administration of the Orthodox faction to which the plaintiff belongs.
13.In the above-mentioned circumstances, the defendants cannot have any grievance against the reliefs granted by the Trial Court, which are confirmed by the First Appellate Court. Accordingly, this Regular Second Appeal is dismissed.
**Sd/M.A.ABDUL HAKHIM**
**JUDGE**
ShgXX
