IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 RSA.NO. 614 OF 2008() --------------------- AS.10/2007 OF SUB COURT, THIRUVALLA OS.239/2005 OF MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------- JOMINI MARY ABRAHAM, W/O.ABRAHAM LEE THOMAS, L.53, KAVIMKOTTATHU HOUSE, NELLICKAMON PO, RANNY. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): RESPONDENTS/DEFENDANTS ----------------------------------------------------------------- 1. THE MARTHOMA METROPOLITAN, MARTHOMA SYRIAN CHURCH OF MALABAR, 'PULATHEEN', THIRUVALLA- 689101, KERALA. 2. MARTHOMA SYRIAN CHURCH OF MALABAR, REPRESENTED BY ITS SECRETARY, MARTHOMA SABHA OFFICE, THIRUVALLA-689101. 3. REV.DR.K.U.ABRAHAM (NEW BISHOP), RAMBAN, MAR THOMA CHURCH,'POOLATHEEN', THIRUVALLA-689101. 4. REV.K.V.VARKEY, VICAR, MARAMON MARTHOMA CHURCH, MARAMON, KERALA. 5. ABRAHAM JOSEPH, KARIMPARAMANNIL HOUSE, ANICADU VILLAGE, MALLAPPALLY TALUK. 6. THOMAS SIMON, KADAMAN PATHALIL HOUSE, KOTTATHOOR MURI, AYROOR VILLAGE, RANNY TALUK. 7. THOMAS ABRAHAM, KUNNIL HOUSE, KUNNAMTHAAM MURI, PULLADU P.O., THOTTAPPUZHASSERY VILLAGE. 8. MARIYAMMA VARGHESE, W/O.LATE VARGHESE THOMAS, MATTATHUMOOTIL HOUSE, KUNNAMTHANAM MURI, PULLADU P.O, THOTTAPPUZHASSERY VILLAGE. 9. SOSAMMA THOMAS, KAITHAMANGALAM HOUSE, NEDUMPARAYAR MURI, MARAMON P.O, THOTTAPPUZHASSERY VILLAGE. 10. V.M.JOHN, S/O.LATE V.K.MATHEW, VADAKKEPARAMPIL RIJKA VILLA, PULLADU MURI, KOIPRAM VILLAGE, KUMPANADU P.O. 11. K.S.THOMAS, S/O.LATE K.C.ZACHARIAH, KOMMATT JENSON VILLA, PULLADU P.O, KOIPRAM PANCHAYATH AND VILLAGE. 12. P.M.ABRAHAM, S/O.LATE P.A.MATHEW, PANACKAL HOUSE, KUMBANAD P.O, KOIPRAM PANCHAYATH AND VILLAGE. 13. THOMAS MATHEW, S/O.LATE P.A.THOMAS, PANACKAL HOUSE, KUMBANAD P.O., KOIPRAM PANCHAYATH AND VILLAGE. 14. P.C.VARGHESE, S/O.LATE VARGHESE CHERIYAN PAKABMATTOM, THOTTACADU, MUTTUMON, KOMBANADU P.O, KOIPRAM PANCHAYATH AND VILLAGE. 15. V.M.THOMAS, S/O.LATE V.K.MATHEW, VADAKKEPARAMPIL HOUSE, KUMBANALDU.P.O, KOIPRAM PANCHAYATH. 16. THOMAS MATHEW, S/O.LATE K.C.MATHEW, KIDAYITHARAYIL, PULLADU P.O, KOIPRAM. 17. M.D.PHILIP, S/O.LATE M.K.PHILIP, MUTHAKOT HOUSE, KUMBANAD P.O, KOIPRAM. 18. A.M.THOMAS, S/O.LATE MATHAI MATHEW, ADATHIMALAYIL HOUSE, KUMBANADU P.O, KOIPRAM. 19. CHERIYAN ABRAHAM, S/O.LATE K.E.ABRAHAM, ATHIMATHIL, KUMBANADU, C/O.58 AKASH DARSHAN, CO-OPERATIVE HOUSING SOCIETY, NOW AT ST.ANTONY STREET, VAKOLA, SANTACRUZ, MUMBAI-55. 20. PONNAMMA SUNNY, S/O.SUNNY MATHEW, KANAKATHUNDIYIL, KUMBANADU. P.O, KOIPRAM. 21. V.G.VARGHESE, VATTACHAKAL VEETTIL, PUNNEVELI MURI, ANICADU VILLAGE. 22. NINAN K.IYPE, KOVOOR VAIPUR VEEDU, VENGHAL, ALAMTHURUTHY, THIRUVALLA. 23. P.K.SAKHARAI, PARAYIL VEETIL, MATHARA MURI, KARAVALLOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM. 24. JOHN.THOMAS, BADHEL VEETIL, MATHRA MURI, KARAVALLOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM. ADV. SRI.P.P.RAMACHANDRAN FOR R7-9 SRI.P.P.RAMACHANDRAN FOR R1O TO 20 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R1 SRI.P.JACOB MATHEW FOR R1 & 2 SRI.ANIL K.NARENDRAN FOR R5 & 22 SRI.CHACKO GEORGE, SENIOR ADVOCATE FOR R2 SRI.H.RAMANAN FOR R1 & 2 SRI.JAMES JOSE FOR R1 & 2 SRI.ALEX N.MATHEW (KOLLAM) FOR R1 & 2 SRI.K.S.HARIHARAPUTHRAN FOR R23,24 SRI.GEORGE MATHEW FOR R23,24 SMT.A.P.LALY @ LALY VINCENT FOR R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2009, ALONG WITH RSA NO. 639 OF 2008 THE COURT ON 4.12.2009 DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NOS.614 & 639 of 2008 AND CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of December, 2009 C O M M O N J U D G M E N T ---------------------------------------- Challenge in these Second Appeals is to the validity of election to the office of Episcopa (Bishop) in the Marthoma Syrian Church of Malabar (for short, “the Church”), defendant No.2 in the suit. Defendant No.1 is the Marthoma Metropolitan (for short, “the Metropolitan”), the Eclesiastical and Temporal Head of the Church. Plaintiff, it is not disputed is a member of the Church and the Grand Assembly which is the Apex Body created as per constitution of the Church for considering and deciding all matters, spiritual and temporal concerning the Church. Plaintiff says that the Grand Assembly met on December 2, 3 and 4, 2003 and resolved that the Church should have two more Bishops. Election to the office of Bishop was held on January 11 and 12, 2005. Defendant Nos.3 and 4 were nominees of the Episcopal Nomination Board (for short, “the Board”) in the election. Defendant No.3 was declared elected on January 11, 2005 on his securing the required percentage of votes. Since Defendant No.4 did not muster the required percentage of votes that day he faced another round of election the next day. But according to R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 2 :- defendant Nos.1 and 2 on that day also defendant No.4 did not muster the required percentage of votes and hence he was declared not elected. Plaintiff instituted the suit in the court of learned Munsiff representing the members of the Church under Order I Rule 8 of the Code of Civil Procedure (for short, “the Code”). Plaintiff challenged the election on various grounds and prayed that election held on January 11 and 12, 2005 be declared invalid on account of non- compliance of provisions of the constitution of the Church, a mandatory injunction to defendant No.1 to conduct re-election or, to recount the votes and declare the results. She also prayed for a consequential declaration that defendant No.4 is duly elected as Bishop and for a direction to consecrate him as such. Defendant Nos.1 and 2 resisted the suit. Defendant No.3, who was declared elected on January 11, 2005 did not contest the suit. Defendant No.4, the candidate who could not get the required percentage of votes filed written statement but, without expressing any opinion as to the validity or otherwise of the election. Additional defendant No.5 onwards got impleaded under Order I rule 8 of the Code, some of them supporting the plaintiff while others supported defendant Nos.1 and 2. Learned Munsiff, accepting the contentions of defendant R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 3 :- Nos.1 and 2 held that since plaintiff has no personal interest in the matter, the suit as framed is not maintainable. According to the learned Munsiff Section 41(j) of the Specific Relief Act (for short, “the Act”) stood in the way of plaintiff seeking relief of injunction. Learned Munsiff also held that election was conducted in accordance with the provisions of Ext.A1, the Constitution. Plaintiff and supporting defendants challenged the judgment and decree in A.S. Nos.10 and 11 of 2007. First appellate court confirmed finding regarding maintainability of the suit held that clause 16 of the Rules of Procedure (Ext.A3) violated the Constitution of the Church but refused to interfere with the election for the reason that the same procedure was followed in the previous elections also and on account of the finding regarding maintainability of the suit. Accordingly the appeals were dismissed. Plaintiff and supporting defendants are aggrieved and preferred these Second Appeals. Defendant Nos.1 and 2 aggrieved by the finding of the first appellate court that clause 16 of Ext.A3 is not in accordance with the provisions of Constitution of the Church have preferred Cross Objection in S.A. No.614 of 2008. The following substantial questions of law are framed for a decision. (i) Whether the courts below are right R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 4 :- in non-suiting the plaintiff in the given situation placing reliance on Section 34 of the Specific Relief Act? Is there any positive or implied bar in Section 34 of the Specific Relief Act to non- suit a plaintiff to maintain a civil action as envisaged in Section 9 CPC? (ii) Is it not clear on a true interpretation of Section 34 of the Specific Relief Act that the said provision is only an enabling one for parties to maintain a civil action with reference to personal infringements and that there is no taboo in the said provision for a party to maintain a civil action to protect his/her rights? (iii) Whether the courts below are right in law in computing the 75% of the total ballot papers to elect the successful candidate as the Episcopa of Marthoma Church on the basis of Ext.A3? Is not such reckoning per se arbitrary and undemocratic and contrary to Section 33 of the Constitution of the Church? (iv) When Sections 30-34 of the Constitution expressly, explicitly and with precision stipulate that 75% of the votes polled R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 5 :- has to be reckoned for the purpose of declaring the elections, the finding of the lower appellate court that the blank ballot papers put in the boxes are to be taken into consideration for the purpose of calculating 75% for deciding the election, as per Rule 16 of Ext.A3 which is formulated under Ext.A1 whether is correct? (v) After having filed the suit in a representative capacity, in compliance with the provisions contained in Order I Rule 8 CPC is the lower appellate court justified in finding that the suit is bad for want of filing it in a representative capacity? (vi) Whether the finding of the first appellate court that clause 16 of Ext.A3 is against the provisions of the Constitution is legally justified? 2. A little more facts are necessary for a decision of the questions framed. Exhibit A1 is the Constitution of the Church (Ext.A2 is its English version). Exhibit A3 is the Rules of Procedure issued by defendant No.1, according to defendant Nos.1 and 2 as approved by the Episcopal Synod (for short, “the Synod”). According to the plaintiff R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 6 :- the Board cleared two names (defendant Nos.3 and 4) for election to the office of Bishop and placed the same before the Grand Assembly (of which plaintiff is a member). Defendant No.1 issued Rules of Procedure (Ext.A3) dated 21.8.2004 directing all Parishes to publish those names and calling for objections if any to be registered before 5.00 p.m. on 21.9.2004. Objections received were overruled and the final list of two candidates (defendant Nos.3 and 4) was approved and the list was sent to the Grand Assembly. Secretary of the Church on behalf of the Sabha Council issued election notice dated 15.10.2004 to all Parishes and members of the Grand Assembly proposing to hold the election on January 11th and 12th, 2005. Defendant No.1 issued Circular No.122 dated 26.10.2004 to all Parishes and members of the Grand Assembly intimating that election to the office of Bishop will be held on January, 11 and 12, 2005. Plaintiff alleges that the Rules of Procedure for the election issued by defendant No.1 is illegal and invalid since as per Section 22 of Ext.A1, the Rules of Procedure is to be formulated and issued by the Synod (which consists of the Metropolitan, Bishops and Special Invitees who include the Vicar General of the Church). The Rules of Procedure was issued by defendant No.1 in his individual capacity and not by or on behalf of R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 7 :- the Synod. According to the plaintiff clause 16 of Ext.A3, the Rules of Procedure issued by defendant No.1 is a blatant violation of Ext.A1 as it directed that percentage of votes (minimum 75%) shall be decided on the basis of total number of ballot papers deposited in the ballot box, which does not have the sanction of Ext.A1, the Constitution and instead is contrary to Secs.30 to 33 of Ext.A1. Hence election held on the basis of that Rules of Procedure (Ext.A3) is invalid. Further contention is that certain disgruntled elements made a disinformation campaign against defendant No.4 and hence many of the voters did not vote for defendant No.4. They deposited the ballot papers unmarked in the ballot box. Those unmarked ballot papers being not 'votes' should have been discarded in fixing the prime number to reckon the required percentage of votes. Exhibit A1, ,the Constitution does not provide for reckoning the unmarked ballot papers for any purpose. But in the election held on January, 11 and 12, 2005 unmarked ballot papers were also taken into account to fix the prime number and based on that, percentage of votes was calculated. Doing so defendant No.4 was declared not elected. 3. Defendant Nos.1 and 2 contended that suit is not maintainable since it is hit by Sections 34, 39 and 41 of the Act. R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 8 :- Plaintiff has no legal character for herself vis-a-vis the election to the office of Bishop and hence no declaration could be granted under Section 34 of the Act. Defendant Nos.1 and 2 did not have any ‘obligation’ towards the plaintiff in the matter of election and hence no decree for mandatory injunction could be granted. In so far as plaintiff has no ‘personal interest’, injunction cannot be granted in her favour as prayed for. Fact that a publication was made under Order I Rule 8 of the Code did not make the suit maintainable since still, it is not a suit brought on behalf of the Church. Since the suit is not brought on behalf of the Church and instead in the individual capacity of the plaintiff though making a publication under Order I Rule 8 of the Code the suit is not maintainable. They denied that election was in violation of the provisions of Ext.A1, the Constitution. Rules of Procedure (Ext.A3) was issued by defendant No.1 after discussing the same in the Synod and with the approval of the Synod. Clause 16 of Ext.A3 is valid and does not in any way offend the provisions of Ext.A1, the Constitution. It is incorrect to say that the alleged disinformation campaign affected result of election. Ballot paper is so designed that if the voting column is left blank it has to be treated as negative vote as implicit from Secs.33 and 34 of Ext.A1, the R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 9 :- Constitution. That practice was in vogue in the past. To fix the prime number for reckoning the minimum percentage of votes required, all the ballot papers deposited in the ballot box have to be taken into account. 4. As regards maintainability of the suit in the way it is framed it is contended by learned counsel for plaintiff and supporting defendants that finding of the courts below is not correct. According to the learned counsel the suit being of a ‘civil nature’ as provided under Sec.9 of the Code and so far as jurisdiction of the civil court is not ousted expressly or impliedly, civil court has jurisdiction to take cognizance of the matter even at the instance of plaintiff alone. It is further contended by learned counsel that Sec.34 of the Act is not exhaustive as to the power of civil court to grant declaration. Even beyond Sec.38 of the Act it is within the power of civil court to grant injunction. Reliance is placed on the decisions in Mohammed Hassan v. Gajadhar Prasad (AIR 1937 Allahabd 585); Ramaraghava Reddy v. Seeshu Reedy (AIR 1967 SC 436); S.G. Film Exchange v. Brijnath Singhji (AIR 1975 SC 1810); Shiv Kumar Chadha v. Municipal Corpn. Of Delhi (1993) R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 10 :- 3 SCC 161); Saraswathy v. Lachanna (A994) 1 SCC 611); Pappy v. Mathews Koorilos (2000 (2) KLT SN 66 Case No.72); Muhammed v. Moideen Haji (2000 (2) KLT 216); State v. T. Srinivas (AIR 1988 Karnataka 67) and Govt. of Orissa v. Jaidu Rama Rao & Co. (AIR 1983 Andha Pradesh 214). In response it is contended by learned counsel for defendant Nos.1 and 2 that in the way the suit is framed as it is not representing the Church as such, suit is not maintainable since plaintiff has no personal interest in the matter of election. For, even if a re-election or recounting of the votes is held, plaintiff not being a candidate at the election has no chance of success and hence she has no personal interest in the matter. If the allegations in the plaint were correct, the really aggrieved is the Church and hence the suit ought to have been brought in its name, for and on its behalf. The mere fact that suit is brought under Order I Rule 8 of the Code will not cure the inherent defect in the frame of the suit or confer right on the plaintiff to sue. It is also the contention that there is no right in common law or in equity for a person to vote and/or challenge the election. A right to vote and/or challenge the election should be conferred by a Statute and R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 11 :- hence in exercise of the principles of equity or in enforcement of common law right civil court cannot entertain a suit challenging an election. Learned counsel has placed reliance on the decision in Jyothi Basu v. Debi Ghosal (1982) 1 SCC 691). Learned counsel distinguished the decisions relied on by the plaintiff and referred supra. According to the learned counsel in all the decisions where suits challenging election were entertained by the civil court the plaintiff concerned had a personal interest in that his right was affected by the impugned election. There is no cause of action for the plaintiff in this case to sue for the reliefs. Nor has she a right of action conferred by any Statute. It is only the Church which is affected or can be prejudiced by the alleged non-compliance of the provisions of its Constitution (Ext.A1) and hence as in the case of an action on behalf of a Deity the suit ought to have been brought on behalf of the Church rather than making the Church a defendant. Learned counsel contended that courts below rightly found against maintainability of the suit. 5. Under Sec.9 of the Code subject to the provisions contained therein and excepting suits cognizance of which is expressly or impliedly barred civil court has jurisdiction to try all ‘suits R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 12 :- of a civil nature’. The word ‘civil’ in legal parlance has various significations. In contradistinction to ‘barbarous’ or ‘savage’ the term may be used to indicate state of society reduced to order and regular Government; in contradistinction to the word ‘criminal’ It indicates private rights and remedies of men as members of the community, in contrast to those which are public and relate to the Government. It also relates to the rights and remedies sought by action or suit distinct from criminal proceeding. The word ‘civil’ is derived from the Latin word ‘civis’, meaning 'citizen'. The word ‘civil’ when used as an adjective to law has been defined in Oxford Dictionary as pertaining to private rights and remedies of a citizen as distinguished from criminal, political, etc. ‘Civil rights’ are those which appertain to citizenship and which may be enforced or redressed by a civil action. The word ‘nature’ has been defined as the fundamental qualities of a person or thing; identity or essential character; sort, kind, character. In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001) the Apex Court held that the expression ‘civil nature’ used in Sec.9 of the Code is wider in its amplitude than the expression ‘civil proceedings’. In that case question considered was whether civil R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 13 :- court could grant a declaration that the Church is Episcopal or is Congregational. The Apex Court held, “In reading Section 9 widely and construing it expansively the jurisdiction to entertain a suit for declaration whether the Church was episcopal or congregational and whether the appellants could have been ordained by the Partiarch when it was contrary to the earlier decision gives by the Supreme Court that the ordaination was required to be approved by Synod, the Court is not being asked to adjudicate on faith but whether the exercise of right in respect of faith was valid. The Grace no doubt comes from Patriarch and on that there is no dispute but whether the Grace came in accordance with the Canon or the Constitution is certainly a matter which would fall within Section 9 C.P.C. Statutes and office are no doubt different but what was challenged is not the status or faith in Patriarch which interfered with the Office of Chatholico held validly. Moreover after coming into force of the Constitution, Article 25 guarantees a fundamental right to every citizen of his conscience, faith and belief, irrespective of cast, creed and sex, the R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 14 :- infringement of which is enforceable in a Court of law and such Court can be none else except the Civil Courts. It would be travesty of justice to say that the fundamental right guaranteed by the constitution is incapable of enforcement as there is no Court which can take cognizance of it. There is yet another aspect of the matters that Section debars only those suits which are expressly or impliedly barred. No such statutory bar could be pointed out. Therefore, the objection that the suit under Section 9 C.P.C. was not maintainable cannot be accepted”. 6. There is no contention for defendant Nos.1 and 2 that a suit challenging election is not maintainable in the civil court or that it is not a suit of civil nature, their contention being only that the suit ought to have been brought for and on behalf of the Church. This contention is met by the plaintiff and supporting defendants on the ground that their grievance is against the Church also in that the Church did not comply with the provisions of the Constitution (Ext.A1), the Temporal and Eclesiastical Head of the Church (defendant No.1) issued Ext.A3, Rules of Procedure in his individual capacity, it violated R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 15 :- the provisions of Ext.A1, Constitution and hence plaintiff be given relief against the Church. In Jyothi Basu’s case (supra) it was held by the Supreme Court that the right to elect, to be elected or, to dispute the election are neither fundamental rights nor common law rights but are confined to the provisions of the Representation of the People Act and Rules made thereunder. Being statutory rights, remedies are limited to those provided by the relevant statutory provisions. 7. Every decision has to be understood in the backdrop of the case it decides. Lord Denning said, “each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. Therefore on which side of the line a case falls, broad resemblances to another case is not at all decisive.” (See Bank of India v. K. Mohan Das – [2009) 5 SCC 313]) R.S.A. NOS.614 & 639 of 2008 & CROSS OBJECTION NO.90 OF 2008 IN R.S.A. NO.614 OF 2008 -: 16 :- The Supreme Court in Ambica Quarry Works v. State of Gujrat (1987) 1 SCC 213) said, “……the ratio of any decision must be understood in the background of the facts of that case.. It has been said long time ago that a case is only an authority for