Case: Moran Mar Basselios Catholicos And Another Vs. The Most Rev. Mar Poulose Athanasius And Others


Decision:
1[ds]In other words, the old appeal, if restored by this Court on this appeal, will by the combined operation of section 8 of Ordinance II of 1124 and section 8 of the Act of 1125, be an appeal pending in the High Court of the United State. Under our present Constitutionhas become a Part B State and under Article 214 the High Court of the United State of TravancoreCochin has become the High Court of the Part B State of TravancoreCochin and shall have the jurisdiction to exercise all the jurisdiction of and administer the law administered by the High Court of the United State. Such appeal must, accordingly, be disposed of under section 25 of the last mentioned Act.That section does not require any confirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or any other authority. Assuming, however, that the appeal, if restored, will have to be governed by section 12 of the Travancore High Court Regulation (IV of 1099) even then the provisions of section 11 would have to be applied "as far as may be" and it may well be suggested that the portion of section 11 which requires the confirmation by the Maharaja will, in the events that have happened, be inapplicable. In our opinion, therefore the preliminary objection cannot prevail and must bealready observed, out of the 99 objections taken in the grounds of review to the judgment of the majority of the High Court only 15 objections were urged before the High Court on the hearing of the application for review. Although most of those points have been referred to by learned counsel for the appellants, he mainly stressed three of them before us. We now proceed to examine these objections.Turning to the affidavit and the letters and the ground No. 17 of review it is quite obvious that the defendants had not given up their contention, upheld by the District Judge, that the plaintiffs had been guilty of the acts and conducts imputed to them. What the learned Advocate for the defendants did was to accept the Canon law as interpreted by the District Judge, namely that nobody goes out of the Church without the verdict of an ecclesiastical authority, whether the acts complained of amount to acts of heresy or to the establishment of a new church so as to make the persons who are guilty of such conduct aliens to the faith.If the majority Judges took the view that such was not the Canon law and that the same acts and conduct may have an ecclesiastical aspect in the sense that they amount to heresy punishable as such and may also amount to a voluntary separation from the church which is not an ecclesiastical offence and does not require the verdict of any ecclesiastical authority to place the guilty person out of the church then it was clearly incumbent upon the majority Judges to consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the dual aspect, namely, amounted to an ecclesiastical offence requiring excommunication and also to a voluntary separation which not being an ecclesiastical offence did not require an ecclesiastical verdict to place a guilty person out of the pale of the Church. This, on the face of the judgment, the learned Judges failed todo not consider that the contention of the learneded. Issue 20 (1) contains several charges against the plaintiffs and even if charges (a) and (b) have been referred to in the majority judgment, the charges (c), (d) and (e) have certainly not been dealt with. As to the temporal power of the Patriarch the District Judge held in paragraph 58 of has judgment that the Patriarch had no temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and its temporalities and that the power of general supervision over spiritual Government conceded to the Patriarch in Ex. DY did not carry with it by necessary implication the right to interfere in the administration of the temporalities and properties of the Church.The decision to the contrary in 41 Trav LR 1 (FB) (A) cannot be regarded as having any bearing after that judgment was set aside subject only to three points as herein before mentioned. It does not appear that the majority Judges considered whether the plaintiffs imputed full temporal power to the Patriarch or the limited one as conceded to him in Ex. DY and if they did impute to him full temporal powers whether they had departed from a fundamental tenet of the Church. They do not also appear to have considered whether, if the plaintiffs originally pleaded themselves to the tenet of full temporal power of the Patriarch and thereby departed from a fundamental article and such departure involved their having become aliens, any subsequent change in their attitude by limiting it as in Ex. DY would make athe defendants had not gone out of the Church by asserting that a Catholicate had been established, that the Catholicos can ordain Metropolitans and consecrate Morone than they should have considered whether by denying these assertions the plaintiffs had not gone out of the Church. This they failed to do.They could not properly decline to go into the question of fact on account of the admission of the defendants Advocate that the plaintiffs remained in the Church. Such admission at best was an admission as to canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the concession made by the defendants Advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants Advocate could not be relied upon for saving the plaintiffs. The facts, therefore, thatNo.11 filed in the High Court by the defendants does not appear to have been pressed makes no difference. In our opinion for reasons stated above, this head of objection raised by the learned Advocate for the Appellants before us isand the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of the Code of Civil Procedure for allowing the review.The above discussion, in our opinion is quite sufficient for the purpose of disposing of this appeal and it is not necessary to go into the several other minor points raised before us. In our opinion the appellants have made out a valid ground for allowing their application for review. We accordingly allow this appeal, set aside the judgment of the High Court and admit the review. As the different points involved in this appeal are intimately interconnected we direct the entire appeal to be reheard on all points unless both parties accept any of the findings of the High Court. The cost must follow the event and we order that appellants must get the costs of this appeal before us and of the application for review before the High Court41. We need hardly add that the observation that we have made in this judgment are only for the purpose of this application for review and should not be taken or read as observations on the merits of the appeal now restored and to be reheard by the High Court.