IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 FAO.No. 7 of 2010() ------------------- OS.38/1999 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/RESPONDENTS/DEFENDANTS ---------------------------------------------------- 1. N.A.DAVID, NADAYAKUNNEL HOUSE, PERIYAPURAM P.O., OONAKKOOR. 2. K.A.SABU, KOONANIKAMALAYIL, PERIYAPURAM P.O., OONAKKOOR. 3. K.V.YOHANNAN, KORAPPILLY HOUSE, THIRUMARADI, KAKOOR KARA. 4. A.C.CHACKO, ACKAPARAYIL HOUSE, PERIYAPURAM P.O., OONAKKOOR. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.K.J.KURIACHAN RESPONDENTS: PETITIONERS/PLAINTIFFS AND DEFENDANTS ---------------------------------------------------- 1. JOY P.C., ARIKUTHURUTHIL HOUSE, KAKOOR KARA, THIRUMARADI VILLAGE, MUVATTUPUZHA TALUK. 2. VARKEY ULAHANNAN, PALAKUZHIYIL HOUSE, PAMPAKUDA KARA, OONAKOOR VILLAGE, MUVATTUPUZHA TALUK. 3. K.U.JOHNY, KALLATTUKUZHIYIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. 4. FR.MATHEWS KANJIRAMPARAYIL, KANJIRAMPARAYIL HOUSE, PERUMPALLY, P.O., MULANTHURUTHY, VICAR, ST.IGNATIOUS ORTHODOX SYRIAN CHURCH, OONAKKOOR. 5. OONAKKOOR SEHIYON CHURCH, PERIYAPURAM P.O., BY ITS KAIKARANS. 6. REV. FR.JOY, ANAKUZHIYIL HOUSE, KARIKODE P.O., PERUVA VIA., VELLOOR VILLAGE, VAIKOM TALUK. 7. REV.FR.CHERIAN P.C., PALAKKATTU MYALIL HOUSE, KEEZHILLAM P.O., PERUMBAVOOR VIA. 8. K.M.JACOB @ YACOB, KOLLAMPARAMBIL HOUSE, ANCHALPETTY P.O., PAMPAKUDA VIA., OONAKKOOR VILLAGE, MUVATTUPUZHA TALUK. 9. JOY K.J., KOONANIKKAMALAYIL(NARAKKATTU), PERIYAPPURAM P.O., OONAKKOOR SOUTH, PAMPAKUDA VIA., OONAKKOOR VILLAGE. 10. ROY V.J., VETTIYANIKKAL HOUSE, PERIYAPPURAM. 11. P.O.PAMPAKUDA VIA., OONAKKOOR VILLAGE. 12. ALEXANDER CHERIAN, VELOOR HOUSE, OONAKKOOR KARA, OONAKKOOR. 13. BENOY P.GEORGE, POTHAKUZHIYIL HOUSE, KAKOOR, THIRUMARADY. 14. E.J.REJI, THAKADIPUTHENPURAYIL HOUSE, OONAKKOOR KARA, OONAKKOOR. BY ADV. SRI.S.SREEKUMAR FOR R4 SRI.P.V.ELIAS FOR R11 TO 13 SRI.K.UNNI VARGHESE FOR R11 TP 13 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. BASHEER & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 7 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2010. JUDGMENT Basheer J., This appeal relates to yet another unfortunate fracas arising out of inter factional dispute in a church. The factional feud never seems to end. The fight goes on; for whose benefit? There is no answer. There is no clue. The ultimate sufferers are the innocent believers who never bargain for such unholy and unwholesome fight among their clergy. 2. Sehiyon Church at Onakkoor in the district of Ernakulam is the venue, where the present factional rivalry rages. The suit in relation to the dispute in this church has been pending before the First Additional District Court, Ernakulam (Designated Church court), since 1999. It is on record that both sides have adduced evidence in the case and the case now stands posted to January 15, F.A.O. No: 7 of 2010 :2: 2010 for hearing final arguments of the learned counsel for the parties. 3. But, in the meanwhile, the court below decided to dispose of an interlocutory application (I.A. No. 4400 of 2009), permitting plaintiff No.4 (respondent No.4 here) to officiate as Vicar of the church and to perform the weekly Mass in the church on alternate Sundays, when the turn of the faction which he represents, falls due. The said order is impugned in this appeal by defendants Nos. 10 to 13 in the suit. 4. Before we briefly refer to the essential facts which are necessary for disposal of this appeal, it may at once be noticed that this order has lead to some bloodshed in the precincts of the church. We are informed that plaintiff No.4, the Vicar, himself and quite a few of his supporters were allegedly manhandled and beaten up. Piravom Police has reportedly registered Crime No.31 in connection with the said incident. Similarly, police has registered Crime No.30 for the alleged assault on some of the parishners including two lady F.A.O. No: 7 of 2010 :3: believers belonging to the other group. The court below might not have obviously anticipated such an unfortunate fall out when it passed the impugned order. 5. Admittedly, the two factions (Orthodox & Jacobite) had been conducting Holy Mass and other religious ceremonies in the church on alternate weekly turn basis, for the last several years. To be specific, if the Orthodox group conducts the Holy Mass and other prayers during a week No.1, the 2nd week will be ear-marked or allotted for the Jacobite group and the third week is allocated for the Orthodox group. This system has been continuing till the impugned order was passed on January 5, 2010. 6. In July, 2009, while the evidence in the suit was being recorded, 4 (four) Interlocutory Applications happened to be filed, viz; I.A. No: 4400 of 2009, I.A. No. 4401 of 2009 and I.A. No. 4505 of 2009 by the plaintiffs and I.A. No. 4513 of 2009 by the appellants. The prayer in I.A. No. 4400 of 2009 filed by the plaintiffs was to issue an order of injunction restraining the F.A.O. No: 7 of 2010 :4: defendants from obstructing plaintiff No.4 to function as the Vicar of the church. The prayer in I.A. No. 4401 of 2009 was to appoint an Advocate Commissioner to report whether any obstructions are being caused to plaintiff No.4 in performing the service in the church. In I.A. No. 4505 of 2009, the plaintiffs prayed that an Advocate Commissioner be appointed to report as to whether the earlier order passed by the court is being flouted by defendant No.2. 7. The above four applications were heard by the court below and a common order was passed on July 10, 2009, the relevant portion of which is extracted hereunder: “On hearing both sides and on going through the records, especially, the affidavit filed by the second defendant, I think that a direction to him to continue the religious services of the first defendant church with the assistance of a priest of his choice, can be allowed to protect the interests of the parishners of both groups. Since he himself has submitted that he is able to perform the services except the difficulty mentioned above, I think that there is nothing wrong in permitting him to continue his F.A.O. No: 7 of 2010 :5: service on alternate sunday as before. Moreover, permitting the second defendant to do the services of the church on his weekly turn, will not cause any prejudice to the opposite side. So, in interest of justice I.A. No.4513/09 is allowed. But, considering the rival contentions, I also appoint a commissioner in I.A. No.4505/09 to report about the religious services performed by the second defendant with the assistance of a priest of his choice on 12.7.2009. Advocate Jibu T.S., is appointed as the commissioner. (Commission batta is Rs.1,500/-) 8. It is beyond controversy that the above order was not challenged by any of the parties before the appellate Court. In other words, the said order has become final. 9. It is contended by the appellants that the court below has chosen to pick out one of the Interlocutory Applications namely, I.A. No. 4400 of 2009, which was covered under the common order referred to above, and has passed the impugned order without hearing any of the counsel for the parties. It is specifically contended by the appellants that a perusal of ‘A Diary’ maintained F.A.O. No: 7 of 2010 :6: in the court will reveal that I.A. No.4400 of 2009 was not posted before the court for hearing, after the common order was passed on July 10, 2009. 10. However, it is contended by learned counsel for the plaintiffs that I.A. No. 4400 of 2009 was in fact called before the bench on August 14, 2009. It was posted for hearing on 21st August 2009 and on subsequent dates and taken for order on September 19, 2009, though ultimately the order was passed on January 5, 2010. 11. As mentioned earlier, by the impugned order, the court below has interdicted the defendants from obstructing plaintiff No.4 in performing his duties as Vicar during alternate weeks allocated to the Orthodox faction. It is contended by learned counsel for the plaintiffs that the court below was amply justified in passing the impugned order, especially since there has been no dispute that plaintiff No.4 represents the Orthodox faction and that he has been duly authorized by the said faction to perform the duties of a Vicar. 12. However the contention of the appellants is that F.A.O. No: 7 of 2010 :7: defendant Nos. 2 and 3 had all along been conducting the Mass and other religious ceremonies in the church on alternate weeks and therefore the court below was not at all justified in disturbing the said arrangement at this belated juncture, and that too when the suit has reached its final stage. It is further pointed out by Sri. Chithambaresh, learned senior counsel, who appears for the appellants, that the procedure adopted by the court below by itself is highly irregular, in as much as the impugned order has been passed on an application, which stood disposed of way back in July 2009 itself, through a common order. Various other contentions have also been raised by learned counsel on both sides, which essentially touch upon the very genesis of the dispute. An attempt has also been made by learned counsel on either side, to refer to various other earlier orders passed by this court and trial court, in support of their rival contentions. But in our view, it is not necessary, at this stage, to advert to or deal with all those issues for the simple reason that the court below is about to give its final verdict in the suit. F.A.O. No: 7 of 2010 :8: 13. It is admitted by the appellants that going by the arrangement that was being followed till the date of passing of the impugned order, the two factions had been performing the religious ceremonies in the church during alternate weeks. Defendant No.2 allegedly switched his allegiance to the Jacobite faction during the pendency of the suit. Admittedly, defendant No.3 is the Assistant Vicar. According to the plaintiffs, their faction (Orthodox) intends to perform the Holy Mass and other religious ceremonies in the church through their Vicar and it is therefore that they had made a prayer in the Interlocutory application to interdict the defendants from obstructing the fourth plaintiff from performing the ceremonies. 14. Having regard to the entire facts and circumstances, we deem it appropriate, not to deal with the issue any further, at this stage. Since admittedly the two factions are performing the religious ceremonies in the church on alternate weekly basis, we are of the view that the same position must continue. F.A.O. No: 7 of 2010 :9: 15. In that view of the matter, we dispose of the appeal making it clear that the two factions shall be at liberty to continue with the present arrangement. Learned counsel for the plaintiffs submits that as far as their weekly turn to hold Mass and other religious ceremonies in the church is concerned, they would prefer to depute their Vicar, namely plaintiff No.4, to represent their faction. Learned senior counsel who appears for the appellants submits that defendant No.2, who has regained his health after the accident, is now in a position to perform the weekly Holy Mass and other religious ceremonies. He further submits that in case, defendant No.2 is incapacitated because of the injury in the coming weeks, his faction (Jacobite) may be permitted to depute another representative of it own choice. The above prayer is allowed. With these clarifications the appeal is disposed of. It is also made clear that it will be the turn of the Orthodox group to hold weekly holy mass and other religious ceremonies during the coming week, that is, starting from 4.30 p.m. on January 16, 2010 till 4.00 p.m. on F.A.O. No: 7 of 2010 :10: January 23, 2010. 16. We further direct the Police authorities that law and order shall be maintained in the Church premises at any cost. In any of the two factions apprehends that there is likeli-hood of breach of peace in the area, it will be open to either of them to approach the police in which event, necessary assistance shall be provided by the Circle Inspector of Police, Piravom. It shall be ensured by law enforcing agency that no untowards incidents take place. The Court below shall make an earnest endeavour to dispose of the suit as expeditiously as possible. Appeal is disposed of in the above terms. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/