IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 RP.No. 766 of 2011(O) --------------------- AGAINST THE JUDGEMENT/ORDER IN OPC.2547/2011 Dated 11/08/2011 .................... REVIEW PETITIONER/ORIGINAL PETITIONER ----------------------------------------------------------------- JOHN SAMUEL,S/O.G.SAMUEL,FLAT NO.128, BLOCK V, EMS NAGAR,PATTOOR,THIRUVANANTHAPURAM, PIN-695035. BY ADV. SRI.JOHN SAMUEL (PARTY IN PERSON) RESPONDENT(S)/RESPONDENTS -------------------------------------------------- 1. MALANKARA MARTHOMA SYRIAN CHURCH(SABHA), HAVING ITS HEAD QUARTERS AS AT SCS COMPLEX, THIRUVALLA REP.BY ITS METROPOLITAN MOST REV.DR. JOSEPH MARTHOMA,PIN-689101. 2. THE MOST REV.DR.JOSEPH MARTHOMA, METROPOLITAN,PULATHEEN,THIRUVALLA,PIN-689101. 3. EPISCOPAL SYNOD OF MALANKARA MARTHOMA SYRIAN CHURCH,REP.BY ITS CHAIRMAN AND CONVENOR, MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN,THIRUVALLA,PIN-689101. 4. SABHA COUNCIL OF MALANKARA MARTHOMA, SYRIAN CHURCH,REPRESENTED BY ITS CHAIRMAN, THE MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN,THIRUVALLA,PIN-689101. 5. SABHA PRATHINIDHI MANDALAM, (FOR 2008-2011)OF MALANKARA MARTHOMA SYRIAN CHURCH REPRESENTED BY ITS PRESIDENT,THE MOST REV. DR.JOSEPH MARTHOMA METROPOLITAN,PULATHEEN, THIRUVALLA,PIN-689101. RP.No. 766 of 2011(O) --------------------------------- 6. THE EPISCOPAL NOMINATION BOARD, (CONSTITUTED DURING FEBRURARY 2010)MALANKARA MARTHOMA SYRIAN CHURCH,REPRESENTED BY ITS PRESIDENT,THE MOST REV.DR.JOSEPH MARTHOMA METROPOLITAN,PULATHEEN,THIRUVALLA,PIN-689101. 7. REV.K.S.MATHEW,SABHA SECRETARY, MALANKARA MARTHOMA SYRIAN CHURCH,OFFICE OF THE MARTHOMA SABHA OFFICE,SCS COMPLEX,THIRUVALLA, PIN-689101. 8. REV.VARGHESE MATHAI,VICAR,EBENEZER MARTHOMA CHURCH,OTHARA EAST.P.O,ERAVIPEROOR, PATHANAMTHITTA DISTRICT,PIN-689542,PRESENTLY NAMED AS RT.REVE.MATHEWS MAR MACARIOS,MANGANAM.P.O KOTTAYAM,PIN-686018. 9. REV.OOMMEN GEORGE,VICAR,IMMANUEL MARTHOMA CHURCH,CHIRAYIRAMPU.P.O,PATHANAMATHITTA DISTRICT,PIN-689102,PRESENTLY NAMED AS RT.REV. THOMAS MAR THETHOS,RESIDING AT MARTHOAM CENTRE, PLOT NO.18,SECTOR 10A,VASHI,NAVI MUMBAI, PIN-400 703. 10. REV.K.V.VARKEY,VICAR,EBANEZER MARTHOMA CHURCH,KAVUMBHAGAM.P.O,THIRUVALLA,PIN-689201, PRESENTLY NAMED +AS AT RT.REV.GREGORIOS MAR STEPHANOS, RESIDING AT AT MARTHOMA CENTRE,MAKKADA.P.O, (VIA)KAKKODI,CALICUT,PIN-6737617. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK RP.No. 766 of 2011(O) ------------------------------- APPENDIX --------------- PETITIONER(S) EXHIBITS -------------------------------------- ANNEXURE.A1: TRUE COPY OF THE ORDER DATED 07.6.2011 IN I.A.1437/2011 IN O.S.NO.204 OF 2011 ON THE FILE OF THE HONB'LE MUNSIFFS COURT,THIRUVALLA. ANNEXURE.A2: CERTIFIED COPY OF THE COMMON JUDGMENT DATED 28.07.2011 IN C.M.A.NOS 5 & 6 OF 2011 ON THE FILE OF THE HONB'LE SUBORDINATE JUDGE'S COURT,THIRUVALLA ANNEXURE.A3: TRUE COPY OF CHAPTER 3 OF THE CONSTITUTION OF THE IST RESPONDENT CHURCH,MALAYALAM VERSION,PUBLISHED IN THE YEAR 2009 ANNEXURE.A4: TRUE COPY OF CHAPTER 3 OF THE CONSTITUTION OF THE IST RESPONDENT CHURCH,ENGLISH VERSION,PUBLISHED IN THE YEAR 2008.. ANNEXURE.A5: TRUE COPY OF THE INTRODUCTION GIVEN TO THE ENGLISH VERSION,1984 EDITION OF THE CONSTITUTION OF THE IST ` RESPONDENT CHURCH. ANNEXURE.A6: COMPARATIVE TABLE,SHOWING PARAGRAPHS 3 TO 5 OF CLAUSE 33,AND CLAUSE 34,AS DEPICTED IN THE MALYALAM VERSION AS WELL AS THE ENGLISH VERSIONS OF 1984,2002 & 2008.. ANNEXURE.A7: TRUE COPY OF THE COUNTER AFFIDAVIT,FILED ON BEHALF OF RESPONDENT NOS.1 TO 7 IN O.P.NO.2547/2011 ON THE FILE OF THE HONB'LE HIGH COURT OF KERALA. ANNEXURE.A8: TRUE COPY OF THE INTRODUCTION GIVEN TO THE ENGLISH VERSION, 2002 EDITION OF THE CONSTITUTION OF THE IST RESPONDENT CHURCH. ANNEXURE.A9: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED ON 12.10.2011. ANNEXURE.A10: TRUE COPY OF THE RELINQUISHMENT MEMO ISSUED FROM THE OFFICE OF M/S.S.SREEKUMAR ASSOCIATES. RESPONDENTS' EXHIBITS : NIL --------------------------------------- / TRUE COPY P.A. TO JUDGE VK THOMAS P. JOSEPH, J. ---------------------------------------- R.P.No.766 of 2011 in O.P(C).No.2547of 2011 --------------------------------------- Dated this 24th day of October, 2011 ORDER Petitioner in the original petition (who now appears in person) seeks review of the judgment dated August 11, 2011 in O.P(C).No.2547 of 2011 of this Court. 2. That original petition was in challenge of the common judgment rendered by the learned Sub Judge, Thiruvalla in C.M.A.Nos.5 and 6 of 2011 upholding validity of the election of respondents 8 to 10 of whom the 10th respondent was declared elected as episcopa on the second day of the election on 09.03.2011 while respondents 8 and 9 were declared elected as such on first day itself (08.03.2011). 3. In challenge of the common judgment, learned Senior Advocate who appeared for petitioner in the original petition raised a contention that Secs.33 and 34 of the Constitution are to be read disjunctively and that only in the case of process of elimination, continuation of the election on the second day is contemplated by the Constitution. It was contended that there R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 2 :- was no question of elimination after the nominees/candates went into fray and hence only those among respondents 8 to 10 who secured the minimum percentage of votes of the clergy and laity on 08.03.2011 alone were eligible to be declared elected. Learned counsel appearing for the contesting respondents in the original petition contended that under Secs.33 and 34 of the Constitution, when the required number of vacancies of Episcopa are not filled up by the election on the first day, it was within the power of the President of the Prathinidhi Mandalam to continue the election on the next day also to ascertain whether the required number of vacancies of Episcopa could be filled up continuing the election on the said day as well. 4. Learned counsel on both sides in support of their respective contentions referred to the various provisions of the Constitution (its Malayalam and English versions). This Court from paragraph 5 onwards of the judment referred to the various provisions of the Constitution and came to the prima facie conclusion that Secs.33 and 34 of the Constitution permitted the President to continue the election on the second day as well in case the required number of vacancies to the post of Episcopas could not be filled up on the first day of the election and hence there was nothing illegal in the election held on 09.03.2011 on which day the 10th respondent also was declared elected on his R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 3 :- securing the minimum percentage of votes of the clergy and laity taken separately. This Court in the circumstance found that there is no reason to interfere with the prima facie finding entered by the learned Sub Judge and interfere with the common judgment. Accordingly the original petition was dismissed. As is not disputed before me, after the dismissal of the original petition, respondents 8 to 10 were ordained as Episcopas. 5. The prayer in this petition is to review the judgment dated August 11, 2011. Petitioner who appeared in person has argued that this Court even while referring to the various provisions of the Constitution was concerned only with the English version which came into force in the year, 1984 which has not got the appropval of the Prathinidhi Mandalam while the Malalyalam version of the Constitution which came into existence in the year, 1969 is the authentic text. In page 82 of the paper book (referring the review petition) the Malayalam and English versions of Secs.33 and 34 are given. The argument of petitioner in short is that as per the Malayalam version (Secs.33 and 34) of the Constitution it is only in the matter of elimination process that election is required to be held on the succeeding day. It is contended by petitioner that this vital aspect of the matter was not taken into account by this Court while dismissing the original petition and that affects the sanctity of election to the post of R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 4 :- Episcopas not only so far as the election already conducted is concerned but, to come in future also. According to the petitioner, there is error apparent on the face of the record which is required to be corrected. 6. Learned Senior Advocate appearing for contesting respondents has pointed out that this Court referred to the Malayalam and English versions of the Constitution and come to the prima facie conclusion as to the correctness of judgment rendered by the learned Sub Judge which does not call for a review. It is pointed out that a review is not an opportunity for a rehearing or an appeal against the judgment sought to be reviewed. It is also pointed out that if at all judgment of this Court is wrong on any question of fact or law, the remedy is not by way of a review but by way of appeal to the Supreme Court. 7. I must bear in mind the limitation which the review court is required to maintain - that a review is possible only on grounds specified in Rule 1 Order 47 of the Code of Civil Procedure (for short, "the Code”). There must be an error apparent on the face of the record (no other ground mentioned in Rule 1 of Order 47 of the Code is involved here) to enable review of the judgment. Dealing with the expression “error apparent on the face of the record” it has been held time and again by binding decisions that if it requires an indepth study into the record to R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 5 :- find whether or not there is any error as alleged, it is not an error apparent on the face of the record justifying a review. A further indepth study of the records is neither the function nor within the power of the review court. 8. Bearing that limitation in mind I shall consider the request for review. In paragraph 13 of the judgment sought to be reviewed it is stated that this Court was taken through the Malayalam and English versions of the Constitution, in particular Secs.33 and 34. This Court also observed that it is argued that the first paragraph of Sec.33 of the Constitution would operate as a proviso as Sec.32. Having gone through the relevant provisions of the Constitution this Court was not able to give its assent to that argument. The reason for holding so, is narrated in paragraph 13 of the judgment. After referring to the various paragraphs of Sec.33 of the Constitution this Court held that reading the various paragraphs of Sec.33 of the Constitution, prima facie this Court is unable to accept argument of learned Senior Advocate for petitioner (in the original petition) that the first paragraph of Sec.33 of the Constitution must be read as a proviso to Sec.32 of the Constitution and that only in the case of elimination process (as now argued by petitioner in support of the request for review), the election could be adjourned to the succeeding day as the last paragraph of Sec.33 say. R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 6 :- 9. The conclusion arrived by this Court after hearing both sides in respect of the respective contentions is contained in paragraph 16 of the judgment. This court observed that having heard learned Senior Advocates on both sides and gone through the relevant provisions of the Constitution (I stated in paragraph 13 of the judgment that the Malayalam and English versions of the Constitution were read to me) that there is no reason to interfere with the prima facie finding entered by the learned Sub Judge as to the interpretation of Secs.33 and 34 of the Constitution. But this Court made it clear that the trial Judge shall not be influenced by the observations or findings contained either in the judgment of learned Sub Judge or in the judgment of this Court in deciding the issued at the stage of trial. 10. Petitioner admittedly was not a candidate at the election. Apart from the interest petitioner claims as a member of the Church and as he claims to be entitled to challenge the election, no personal injury would have been caused to the petitioner if the application for injunction was not allowed. In that view of the matter also there is no reason why this Court should review the judgment particularly after respondents 8 to 10 have been ordained as Episcopas. 11. Whatever finding contained in the judgment of this Court will be confined to the dismissal of I.A.No.1437 of 2009 R.P.No.766 of 2011 in O.P(C).No.2547of 2011 -: 7 :- and it is open to the parties to agitate their contentions based on the Malayalam and English versions of the Constitution as they rely upon, in the trial court and request the trial court to reach appropriate conclusion as regards validity of the election. 12. In the view I have stated, I do not find any error apparent on the face of the record which requires this Court to exercise the power under Rule 1 of Order 47 of the Code. Leaving the contentious issues to be decided by the trial court as observed in the judgment sought to be reviewed this petition is dismissed. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-