IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 FAO.No. 43 of 2011() -------------------- AGAINST THE ORDER DATED / / IN IA 4157/2010 IN OS.42/2003 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANTS/PETITIONERS/PLAINTIFFS ----------------------------------------------------- 1. O.V.JOHNY,S/O.VARGHESE,OOMELIL HOUSE, KOKKAPPILLY KARA,THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 2. N.V.GEORGE,S/O.VARGHESE, NADEVELAPARAMBIL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 3. J.GEORGE,S/O.FR.JACOB,MUREEKKAL HOUSE, THIRUVANIYOOR KARA,DO.VILLAGE, KUNNATHUNADU TALUK (DIED). BY ADV. SRI.K.PAUL KURIAKOSE RESPONDENT(S): DEFENDANTS 1 TO 22 --------------------------------- 1. ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU, KUZHIYARA KARA, THIRUVANIYOOR VILLAGE,REP.BY ITS VICAR, PIN 682 305. 2. M.V.GEORGE,S/O.VARKEY,MUREEKKAL HOUSE, THALAKODE KARA, KANAYANNUR VILLAGE, DO. TALUK,PIN 682 305. 3. P.M.JOY.,S/O.MANI, PADINJAREKUDIYIL HOUSE, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK 682 308. 4. FR,JOHN MOOLAMATTOM,S/O.FR.KURIAKOSE, VICAR,ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU, PIN 682 308. FAO 43/11 -2- 5. K.P.VARGHESE,S/O.PATHROSE, KATTARATHUMALIL HOUSE,KOKKAPPILLY KARA, STHIRUVANIYOOR VILLAGE,KUNNATHUNADU TALUK, PIN 682 308. 6. M.Y.SAJU,S/O.YOHANNAN,ADVOCATE, MALIECKAL HOUSE, KOKKAPPLY KARA, THIRUVANIYOOR VILLAGE,KUNNATHUNADU TALUK, MANAGER,ST.JOHN'S HIGH SCHOOL,KANNIYATTUNIRAPPU, PIN 682 308. 7. REJI.N.K, NADUMOLAYIL HOUSE, KUZHIYARA KARA,THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,SECRETARY,ST.JOHN,S HOSPITAL, KANIYATTUNIRAPPU,PIN 682 308. 8. JOY,S/O.KOCHUKUNJ,CHELACHUVATTIL, THIRUVANIYOOR KARA,DO VILLAGE, PIN 682 308. 9. E.V.JAMES,S/O.VARGHESE,EDAPPALLMATTATHIL THIRUVANIYOOR KARA, PIN 682 308, DO VILLAGE, KUNNATHUNADU TALUK. 10. YACOB,S/O.KUNJAPPAN KEELATH, THIRUVANIYOOR KARA, DO VILLAGE,KUNNATHUNADU TALUK,PIN 682 308. 11. BENNY PAUL,S/O.PAILY, PATTULLIL, THIRUVANYOOR KARA,DO VILLAGE,KUNNATHUNADU TALUK,PIN 682 308. 12. P.V.KURIACHAN,S/O.VARKEY, PUTHENVEETTIL,THIRUVANYOOR KARA,DO VILLAGE, KUNNATHUNADU TALUK,PIN 682 308. 13. K.T.PAULOSE,S/O.THOMMAN, KOLLAMKULATHIL,KIDANGYAM KARA,KANAYANNUR VILLAGE, DO.TALUK,PIN 682 308. 14. C.A.THANKACHAN,S/O.ABRAHAM,CHIRAPPATTU, KIDANGYAM KARA,KANAYANNUR VILLAGE, DO.TALUK,PIN 682 308. 15. BABU,S/O.VARGHESE, CHIRAPPATTU, KIDANGYAM KARA,KANAYANNUR VILLAGE, DO.TALUK,PIN 682 308. 16. V.M.PAULOSE,S/O.MATHEW, VAZHAKALAYIL KANAYANNUR VILLAGE, DO.TALUK,PIN 682 308. FAO 43/11 -3- 17. ELIAS S/O.PAPPY,PARAKULANGARA, KIDANGAYAM,KANAYANNUR VILLAGE, DO.TALUK,PIN 682 308. 18. GEEVARGHESE,S/O.YACOB,KOKKATTU, KUZHIYARA KARA,THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,PIN 682 308. 19. P.K.ELIAS,S/O.KORAH,PERUMBATTU, KUZHIYARA KARA,THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,PIN 682 308.(DIED) 20. N.U.JOSEPH,S/O.ULAHANNAN,NJATTUTHOTTIYIL KUZHIYARA KARA,THIRUVANIYOOR VILLAGE, PIN 682 308. 21. T.P.WILSON,S/O.PAILY,THACHETH, KOKKAPPILLY KARA,THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,PIN 682 308. 22. PAUL VARGHES,S/O.VARGHESE, VATTAPPILLIL,KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN 682 308. ADV. SRI.S.SREEKUMAR(CAVEATOR) FOR R1 TO 4 SRI.ANEESH JAMES FOR R11,12,16 SRI.P.J.PHILIP FOR R2,5,6,8,9,10,R12,18,20&22 SRI.SHAHUL HAMEED MOOPPAN FOR R7,13,15,17,21 SRI.S.R.DAYANANDA PRABHU FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/11/2011, ALONG WITH FAO NO. 44 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- FAO Nos.43 & 44 of 2011 ------------------------------------- Dated this the 21st day of November 2011 Judgment Two interlocutory applications namely IA Nos.417/10 and 1403/10 in OS No.42/03 were disposed of by a common order dated 2.2.2011 by the District Court, Ernakulam. Aggrieved by the dismissal of the said petitions, the petitioners in the respective petitions have come up in appeal. 2. It is unnecessary to burden this judgment with the history of the cases for we get a good picture of the same from Annexure A1 judgment produced in this case. This court honestly believed and thought that an election could put an end to the impasse. But that was not to be and the election never took place. 3. Now, on to the facts of the cases. It is not in dispute that it has been declared that the church in question is governed by the 1934 Constitution. OS FAO 43 & 44/11 2 No.42/03 was filed by three Parishioners, seeking to have defendants 2, 3 and 5 to 10, who were the Trustees, Secretary and Managing Committee members of the Church, restrained from acting as office bearers of he Church and its institutions and for a mandatory injunction, directing the fourth defendant to call for the “pothuyogam” of the first defendant Church. 4. IA No.4157/10 was filed by the petitioners, seeking to have the defendants, who, according to the petitioners, are not members of the Malankara Orthodox Church and claiming to be the members of the Church, from conducting Holy Mass and other religious services in the first defendant church. 5. In the affidavit filed in support of the petition, it is pointed out that the fourth defendant who is the vicar appointed by the diocesan metropolitan in accordance with the 1934 constitution alone can conduct religious services in the Kurisupally. The complaint was that the defendants who are members of another Sabha attempted to forcibly FAO 43 & 44/11 3 conduct religious services by a prelate not appointed under the 1934 constitution. It is specifically averred in the affidavit that the respondents in the IA are not members of the Malankara Orthodox Church and they, therefore, cannot ordain the members or anyone else for conducting rituals and rites in the Kurisupally which is a part of the Malankara Orthodox Church. 6. The petition was resisted by the defendants pointing out various aspects and it was also pointed out that for a considerably long period, another priest was manning the Kurisupally and the affairs of the church can be settled only after the election as per Annexure A1 judgment. It is pointed out that the fourth defendant in the suit was inducted as an interim arrangement to act as the Priest of the Church and later on, he claimed to be the vicar on the basis of a Kalpana. It is also pointed out that a suit filed by him is still pending consideration. In the counter affidavit, it is specifically stated that the subject matter of the petition is far beyond the scope of the suit and FAO 43 & 44/11 4 therefore, the prayer in the petition cannot be considered. 7. IA No.1403/10 was filed seeking to remove certain hoardings and flags, which according to the petitioners, were prejudicial to the interest of the parishioners contrary to the 1934 constitution. 8. The court below considered both the petitions and found that the prayer in the petitions are far beyond the scope of the suit and dismissed the petitions. 9. It is contended that it is, by now, well settled and beyond dispute that the church in question, namely, St.Johns Orthodox Syrian Church is governed by the 1934 Constitution. St.Johns Malankara Kurisupally, Kanayannur is an integral part of the Orthodox Church and if that be so, the affairs in the Kurisupally are also to be governed by the 1934 Constitution. The short case put forward is that if that be so, no priest or vicar other than the one ordained under the 1934 Constitution or by the competent authority can perform the rites in the Kurisupally also. FAO 43 & 44/11 5 10. The respondents, on the other hand, point out that they owe allegiance to the 1934 Constitution. For a long time, the Kurisupally has been separate entity distinct from the church and going by Annexure A1 produced along with this appeal, it is clear that the final decision regarding the affairs of the church and the Kurisupally have to be taken after the election. 11. One may first have a glance at what is the scope of the suit itself. It is for removal of certain persons from certain posts on the ground of mismanagement, and mal-administration. Another prayer is for a mandatory injunction, directing the fourth defendant to convene a pothuyogam. As far as that prayer is concerned, this court has settled the matter by Annexure A1 judgment so as to put an end to the dispute between the parties. But, as already stated, the election never took place. The court below has gone into that aspect and found that the prayers in the IA travel far beyond the scope of the suit and it actually relates to the conduct of religious rites of the FAO 43 & 44/11 6 Kurisupally. The lower court was also impressed by the fact that the contesting respondents were able to produce some documents to show that the affairs of the Kurisupally were being carried on by them. 12. It is brought to the notice of this court that the fourth defendant had also field a suit seeking a declaration of his rights. He now claims to be the vicar appointed by the Metropolitan concerned. Whatever that be, it is clear that the affairs of the Kurisupally and the Church are being carried on differently and that has been going on for years. At this point of time, it will hot be proper for this court to interfere with those affairs, especially when the prayers in the suit are to restrain the members of the Church from acting as office bearers of the Church and its institutions and for a mandatory injunction to convene the “pothuyogam”. The court below has verified the various documents produced by the respondents which would indicate that they were conducting the functions in the Kurisupally. Whether that is in accordance with the 1934 FAO 43 & 44/11 7 Constitution is not a matter to be gone into in this suit. Viewed from that angle, it is felt that the court below is fully justified in observing that the interlocutory applications are far beyond the scope of the suit. The result is that these appeals are without any merits whatsoever and they are accordingly dismissed. No costs. P.Bhavadasan, Judge sta FAO 43 & 44/11 8