IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 CMA.No. 106 of 2001() --------------------- IA.2161/1997 IN OS NO.29/1997 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT(S)/RESPONDENTS 3,4,6, 8 AND 9/DEFENDANTS 3, 4, 6, 8 AND 9: -------------- 1. GEEVARGHESE THOMAS, MUDAVANAPARAMBIL HOUSE, NELLIMATTOM KARA, KUTTAMANGALAM VILLAGE. 2. PAILY YOHANNAN, KAZHUTHAKODAN, KUTTAMANGALAM KARA, KUTTAMANGALAM VILLAGE. (**)3. MATHAI POULOSE, MARACHERRY PUTHETH HOUSE, PERUMANNOOR KARA, KUTTAMANGALAM VILLAGE.(DIED) 4. VARKEY JOHN, THAZHOOTT HOUSE, KAVALANGADU KARA, KUTTAMANGALAM VILLAGE. 5. VARKEY SKARIA, KUDIYIRICKAL, KAVALANGADU KARA, KUTTAMANGALAM VILLAGE. BY ADV. SRI.S.ANANTHASUBRAMANIAN SRI N.SUKUMARAN, SRI S.SHYAM, SRI SHAJI VARGHESE KAKKATTUMATTATHIL, SRI LATHEESH SEBASTIAN RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 AND 7/PLAINTIFF TO BE SUBSTITUTED AND DEFENDANTS 1 AND 7: --------------- (***)1. THE CATHOLICOSE OF THE EAST BASLIOSE MARTHOMA MATHEWS II, CATHOLICATE ARAMANA, MUTTAMBALAM, KOTTAYAM 4. (DIED) 2. REV. FR. GEORGE PAUL, OLAPPURA, KOTHAMANGALAM KARA, -DO- VILLAGE. (**)3. ISAHAK ABRAHAM, THAZHATHOOTT HOUSE, KAVALANGAD KARA, KUTTAMANGALAM VILLAGE. (DIED) CMA NO.106/2001 2 (*) ADDL.R4 IMPLEADED: REV. FR. GEORGE VARGHESE, IRUMALA HOUSE, KUTTILANJI KARA, ERAMALLOOR VILLAGE. (*)(ADDL. 4TH RESPONDENT IMPLEADED AS PER ORER ATED 29.5.2001 ON CMP.1457/2001) (**)IT IS RECORDED AT THE RISK OF THE APPELLANTS THAT THERE IS NO NECESSITY TO IMPLEAD ANYBODY IN THE PLACE OF DECEASED 3RD APPELLANT AND 3RD RESPONDENT VIDE ORDER DATED 20.1.2006 ON MEMO CF NO.249/2006. (***)FIRST RESPONDENT DIED AND IT IS RECORDED THAT NO ONE NEED BE IMPLEADED IN HIS PLACE VIDE ORDER DATED 2.4.2009 VIDE MEMO CF NO.2202/06. ADV. SRI.K.PAUL KURIAKOSE THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 2.4.2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.M.A.No.106 of 2001 -------------------------------------- Dated this the 2nd day of April, 2009. JUDGMENT Order dated 28.2.2001 in I.A.No.2161 of 1997 in O.S.No. 29 of 1977 of the First Additional District Court, Ernakulam is under challenge at the instance of appellants/defendant Nos.3, 4, 6, 8 and 9. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. The original plaintiff No.1 is the Metropolitan of Angamali Diocese. Plaintiff No.2 is the vicar of the church referred to in the plaint. They sought reliefs including a declaration that plaint parish church is a constituent parish church of the Malankara Orthodox Syrian Church and is governed in its administration by the provisions of the constitution of the Malankara Orthodox Syrian Church. The suit was resisted by the defendants. While so, original plaintiff No.1, ie., Metropolitan of Angamali Diocese passed away and consequently, I.A.No.2161 of 1997 was filed to implead the new incumbent to that office as supplemental plaintiff No.3. That application was opposed by the contesting defendants on the ground that relief claimed in the plaint is purely personal to original plaintiff No.1 and plaintiff No.2 and hence the suit must abate consequent to the death of original plaintiff No.1. Learned First Additional District Judge overruled the objection and allowed I.A.No.2161 of 1997. Hence, this appeal. CMA No.106/2001 2 3. It is contended by the appellants that even the statement in paragraph 1 of the plaint would indicate that relief claimed is purely personal to the original plaintiff No.1 and plaintiff No.2 and hence the court below was not justified in allowing impleadment. It is also contended by learned counsel that the prayer in I.A.No.2161 of 1997 is for substitution but Order XXII Rule 10 of the Code of Civil Procedure (for short, “the Code”) does not contemplate any substitution consequent to the death of the parties. It is pointed out by the learned counsel for appellants that even the additional plaintiff No.3 impleaded as per the impugned order has passed away. 4. What is relevant for consideration in this appeal is whether court below was justified in allowing impleadment consequent to the death of original plaintiff No.1. In the plaint, original plaintiff No.1 is described as 'Philipose Mar Theophilos' but, he was the Metropolitan of Angamali Diocese during the relevant time and that is stated explicitly in the cause title of the plaint. It is stated in paragraph 1 of the plaint that the suit is for a declaration of the personal rights of the plaintiffs in the management of the plaint parish church and its assets and consequential reliefs. But learned First Additional District Judge has referred to the averments in paragraph No.4 of the plaint and the reliefs sought for to hold that the relief claimed is not personal and related to the management and administration of the parish church referred to in the plaint and the constitution applicable to that. I find from the reliefs claimed that the declaration sought for concerned the administration and management of the CMA No.106/2001 3 parish church. Admittedly that cannot be considered as something personal to original plaintiff No.1 and plaintiff No.2. They have claimed those reliefs not in their personal capacity but as holding offices stated in the plaint. In that view, I do not find reason to interfere with the finding of the learned First Additional District Judge that the relief claimed, notwithstanding what is stated in paragraph 1 of the plaint is not personal to original plaintiff No.1 and plaintiff No.2. The order under challenge calls for no interference. Resultantly, C.M.Appeal is dismissed. No costs. C.M.P.No.1444 of 2001 and I.A.No.184 of 2006 will stand dismissed. THOMAS P.JOSEPH, Judge. cks Thomas P.Joseph, J. CMA No.106/2001 4 C.M.A.No.106 of 2001 JUDGMENT 2nd April, 2009.