IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Tr.P(C).No. 215 of 2008() -------------------------------------- OS.287/2008 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONERS ---------------------- 1. FR.M.P.JOSE, S/O. M.O.PAULOSE, AGED 58, MOOTHARIL HOUSE, PANCODE KARA, IKKARANAD NORTH VILLAGE, KUNNATHUNAD TALUK. 2. M.O.PAULOSE,S/O.OUSEPH, AGED 86 MOOTHARIL HOUSE, PANCODE KARA, IKKARANAD NORTH VILLAGE, KUNNATHUNAD TALUK. BY ADV. SRI.P.J.PHILIP RESPONDENT(S): ----------------------- 1. C.C.MATHAI, S/O. LT C.C.CHACKO,AGED 68 CHETTIKUZHIYIL HOUSE, VADAVUKODE, KUNNATHUNADU. 2. P.P.CHACKAPPAN, S/O. LT PAILY,AGED 68 PALATHADATHIL HOUSE, VADAVUKODE, KUNNATHUNADU. 3. ST MARY'S ORTHODOX CHURCH , VADAVUKODE, VADAVUKODE VILLAGE, KUNNATHUNADU TALUK. 4. FR O J JACOB,S/O. JOHN,AGED 57, CLAIMING TO BE VICAR, ST MARY'S ORTHODOX CHURCH,VADAVUKODE, VADAVUKODE KARA, VADAVUKODE VILLAGE, KUNNATHUNADU TALUK. 5. VARGHESE, S/O. LOOKOSE KATHANAR, THOPPIL HOUSE, VADAVUKODE, VADAVUKODE KARA, VADAVUKODE VILLAGE, KUNNATHUNADU TALUK. 6. C.C.GEORGE,S/O.LT C.C.CHACKO, CHETTIKUZHIYIL HOUSE, VADAVUKODE VILLAGE, KUNNATHUNADU TALUK. ADV. SRI.S.SREEKUMAR FOR R4 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2008 ALONG WITH TR.P(C) NO.227 OF 2008, THE COURT ON 13/11/2008 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = Tr.P(C) No.215 of 2008 and Tr.P(C) No.227 of 2008 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 13th day of November, 2008 O R D E R ------------- The common question for consideration in these petitions for transfer filed under Section 24 of the Code of Civil Procedure (for short, “the Code”) is whether the suits instituted in the regular civil courts are to be withdrawn and transferred to the First Additional District and Sessions Court, Ernakulam which is constituted as “the Special Court” for trial of cases connected with the Malankara Church Disputes. Since common question arose for consideration, these petitions are being disposed of by this common judgment. 2. I have heard counsel on both sides and perused the records. 3. Learned counsel for petitioners contended that since it is a dispute involving Malankara Church, these cases are to be tried by the Special Court to avoid conflicting decisions. It is also the contention of the learned counsel that though Special Court was initially constituted only till the end of February, 1997, it continued thereafter and by deeming fiction Tr.P(C) Nos.215 & 227 of 2008 -: 2 :- has now become a permanent court. Learned counsel for the respondents contended that the Special Court was constituted for trial of cases concerning Malankara Church disputes, those disputes are settled by the decision of the Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001), disputes now existing are only between some of the individual churches concerned and its parishners and hence, cases as in these petitions not necessarily be tried by the Special Court. Counsel pointed out that the Special Court is also functioning as a regular Additional District and Sessions Court as well. Several cases relating to disputes between the individual churches and some of its parishners are still pending consideration in the Special Court along with other regular cases made over to it by the learned Principal and Sessions Judge, Ernakulam and hence it is not necessary that these cases are also transferred to the Special Court which would only add to the pendency in that court. 4. Tr.P.C. No.215 of 2008 concerned O.S. No.287 of 2008 filed by respondents 1 and 2 in the Munsiff’s Court, Perumbavoor. Tr.P.C. No.227 of 2008 concerned O.S. No.130 2008 filed by the respondent in the Munsiff’s Court, Ettumanoor. Prayer is to withdraw these cases Tr.P(C) Nos.215 & 227 of 2008 -: 3 :- from those respective courts and transfer the same to the Special Court. Annexure B appended to these petitions is the copy of G.O (Rt.) No.1532/76/Home dated 30.6.1976 of Home (C) Department which reads as follows: The Registrar of High Court has recommended that one Additional Session's Court may be established at Ernakulam exclusively for the Trial of cases connected with Malankara church Disputes now pending in various courts of the State. 2. Government accept the recommendation and are pleased to accord sanction for establishing a Special Court at Ernakulam with the following staff exclusively for trial of cases concerning Malankara Church Disputes till the end of February, 1977”. 5. Annexure C is the copy of G.O(P)64/77/Fin. dated 19.2.1977 of Finance (PR.U) Department. That Government order concerned the test to be applied in examining a proposal to make a temporary post permanent (as per Annexure B referred above Special Court was constituted till the end of February, 1977). Relevant portion of Annexure C reads as follows: Tr.P(C) Nos.215 & 227 of 2008 -: 4 :- “Posts which have been continuously in existence for a minimum period of five years will be treated as permanent without further Orders. This order is without prejudice to the provisions of Government's power for abolition of temporary or permanent posts. Notwithstanding these orders, in the case of posts created for specific items of work which are prima facie of a temporary nature, the head of department, while proposing that spell of continuener which completes or crosses the five year limit should specifically examine and record his views whether the posts should be made permanent when they complete five years or that they may be abolished on the expiry of the proposed term or on completion of the specific item of work”. 6. Annexure D, G.O.(P) No.64/77/Fin. dated 19.2.1977 of Home (C) Department states that “Sanction is accorded for the continuance of the temporary courts and posts attached to them as detailed in the statement appended to this order till the end of February, 198- (year mentioned is 1982 as could be discerned from Annexure E). Annexure E is photocopy of the letter No.PIO97/2007 Tr.P(C) Nos.215 & 227 of 2008 -: 5 :- dated 5.9.2007 of Public Information Officer, High Court of Kerala Ernakulam addressed to Advocate Shri Philip P.J. Advocate Shri Philip P.J. requested for information under the Right to Information Act 2005 from the High Court as to the continuance of the Special Court even after the time prescribed in Annexure B. The Public Information Officer informed Advocate Shri Philip P.J., after referring to the relevant Government Orders, thus: “So the posts have become permanent. In view of that, the Court also may be deemed to have become permanent. No other orders declaring this Court as a permanent one is available. Hence, the status of Special Court for the trial of Malankara Church Disputes is one of permanent nature with effect from 31.05.1981 and all disputes in the said matter is to be filed before the Special Court”. 7. It is in the light of Annexures B to E stated above, that learned counsel for the petitioners contended that cases referred to in these petitions are to be withdrawn from the respective munsiff’s courts and made over to the Special Court. 8. Section 24 of the Code of Civil Procedure empowers the Tr.P(C) Nos.215 & 227 of 2008 -: 6 :- High Court to transfer any suit, appeal or to withdraw any suit pending in courts subordinate to it and try or dispose of the same or, transfer, the same for trial or disposal to another court subordinate to it and competent to try or dispose of the same. In these petitions the only ground sought for transfer of the cases is that the Special Court has been constituted for trial of cases involving disputes of the nature involved in the suits referred to in these petitions and that unless suits are tried by the Special Court there is possibility of conflicting decisions. Therefore the question whether these cases are to be transferred to the Special Court has to be decided in the light of the above contentions alone. 9. It is clear from Annexure B that it was pursuant to a recommendation made by the Registrar of this Court that “one additional Sessions court may be established at Ernakulam exclusively for the trial of cases connected with Malankara Church Disputes now pending in various courts of the State (underline supplied) that the Government accepted the recommendation and were pleased to accord sanction for establishment of a Special Court at Ernakulam for trial for cases concerning Malankara Church Disputes till the end of February, 1977” (underline supplied). It is therefore clear that the Tr.P(C) Nos.215 & 227 of 2008 -: 7 :- very constitution of the Special Court was for trial of various cases connected with Malankara Church Disputes which then were pending in various courts of the State. It is true that by a deeming fiction as revealed from Annexures C to E, the Special Court continued to be in existence even after the original time fixed, i.e., till the end of February, 1977. 10. To understand what exactly were the church disputes involved in the cases which were pending in various courts of the State as on the date of Annexure B constituting the Special Court, profitable reference can be made to the decision in P.M.A. Metropolitan's case. The common dispute then existed concerned the correctness or the binding nature of the Hudaya Canon accepted by the Malankara Jacobite Syrian Community, whether the catholic established by the Patriatch Abdul Messiah was valid and binding on the entire Malankara Church, whether by establishment of the Catholicate, Patriatch was deprived of his powers to ordain Metropolitans, etc., whether Malankara Church became an autocephalous church and disputes of like nature. These disputes were settled by the decision in P.M.A. Metropolitan. 11. O.S. No.287 of 2008 of the Munsiff's Court, Perumbavoor Tr.P(C) Nos.215 & 227 of 2008 -: 8 :- referred in transfer petition No.215 of 2008 is filed by one C.C. Mathai and another against St.Mary's Orthodox Syrian Church, Vadavucode. In paragraph 4 of the plaint (Annexure A) it is stated that there is no lawful Kaikkaran or trustee of the church duly elected in the general body of the church and making use of absence of proper Kaikkaran for administration the church, defendants 3 and 4 therein are trying to interfere in the administration of the church and misappropriate its assets. Plaintiffs alleged that the whole funds of the church has been misused by defendants 3 and 4. Reliefs prayed for in that case is a decree of permanent prohibitory injunction restraining defendants 3 to 6 in the suit and their men from interfering with the administration of the church and its chappals and the plaint schedule properties and from utilising its funds or from administering the plaint schedule properties of the church, etc. Annexure A in Transfer Petition No.227 of 2008 is the plaint in O.S. No.130 of 2008 of the Munsiff's Court, Ettumanoor. That suit was filed by one Fr.O.S. Kuriakose against Fr.Andrews and others. It is averred in paragraph 8 of the plaint that the first defendant is now functioning as Priest in the plaint A schedule church without any lawful authority, first defendant is one among the persons who disowned the 1934 Constitution and is acting without any Tr.P(C) Nos.215 & 227 of 2008 -: 9 :- appointment orders from the present lawful Diocesan Metropolitan of Kottayam. Plaintiff claimed that he has been duly appointed as the Vicar of the church by the lawful Diocesan Metropolitan of Kottayam. On that premise, plaintiff prayed for a declaration that himself, his successors and priest assistants appointed by the Diocesan Metropolitan of Kottayam are the lawfully appointed vicar and priest assistants entitled to function as such in the plaint A schedule church and for a prohibitory injunction restraining the defendants and their supporters from preventing or obstructing the plaintiff and his lawfully appointed successors and priest assistants from functioning as such. 12. A reading of the plaint in these cases would indicate that these cases did not involve any dispute regarding the validity or binding nature of the 1934 Constitution upheld by the Apex Court in P.M.A. Metropolitan's case or, any of the disputes settled by that decision. Therefore, it is not as if these cases are to be tried exclusively by the Special Court. There is also no possibility of any conflicting decisions if these suits are tried by the respective regular civil courts. Hence, I am not persuaded to accept the contention of the counsel for the petitioners that unless these suits are transferred to the Special Court, there will be conflicting decisions on the same Tr.P(C) Nos.215 & 227 of 2008 -: 10 :- issue. 13. As pointed out by the learned counsel for the respondents the Special Court referred above is also a regular Additional District and Sessions Court trying various civil/criminal cases including sessions cases made over to it for trial. Civil cases involving factional fights between the churches and its parishners are pending consideration in the Special Court. In these circumstances, it is not appropriate that these suits, in the absence of any other special reasons such as convenience of parties, etc., are withdrawn and transferred to the Special Court which would only add to the pendency of cases in that court. Hence the request of the petitioners cannot be allowed. These petitions are therefore, dismissed. THOMAS P.JOSEPH, JUDGE. vsv