IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 OP(C).NO. 382 OF 2010(O) ------------------------ IA NO.5135/2010 IN OS.1/2008 OF I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONER(S): -------------------- 1. GEORGE PAULOSE @ JOY S/O.PAULOSE, 45 YEARS, CHRISTIAN, AGRICULTURIST, RESIDING AT KIZHAKKEKKARA HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 2. MATHAI @ M.M.BINOY, S/O.MARKOSE, AGED 37 YEARS, CHRISTIAN, AGRICULTURIST, RESIDING AT MADATHUKAUDIYIL HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 3. M.P.RAJESH, AGED 34 YEARS, S/O.PAILY, CHRISTIAN, AGRICULTURIST, RESIDING AT MANNARAPARAYIL HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 4. FR.THOMAS PAUL MARACHERIL S/O.PAULOSE, AGED 28, RESIDING AT MARACHERIL HOUSE, KOTHAMANGALAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): ------------------------- 1. ST.MARY'S ORTHODOX (JACOBITE) CHURCH, MULLARINGADU, VANNAPPURAM VILLAGE, REP. BY ITS KAIKKARAN, ST.MARY'S ORTHODOX SYRIAN (JACOBITE)CHURCH, MULLARINADU KARA, VANNAPPURAM VILLAGE. 2. FR.KURIAKOSE PUTHUSSERIL AGED ABOUT 42 YEARS, CHRISTIAN PRIEST,PUTHUSSERIL HOUSE, KARIMATTOM KARA, OP(C) NO.382/2010 MUVATTUPUZHA, ERNAKULAM DISTRICT. 3. VARGHESE PARAYIL AGED ABOUT 50 YEARS, S/O.KURIAKOSE, CHRISTIAN, AGRICULTURIST PARAYIL HOUSE, CHULLIKANDOM KARA, OONNUKAL P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 4. N.C.VARGHESE, AGED ABOUT 40 YEARS, S/O.CHACKO, CHRISTIAN, AGRICULTURIST, NOONUTTIL HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 5. ELDHOSE S/O.VARKEY AGED ABOUT 35 YEARS, CHRISTIAN, AGRICULTURIST, MANAGATTU HOUSE, MULLARINGADU KARA, VANNAPURAM VILLAGE. 6. ELDHOSE NOONUTTIL AGED ABOUT 37 YEARS, S/O.MATHAI, CHRISTIAN, AGRICULTURIST, NOONUTTIL HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 7. FR. K.P.ABRAHAM AGED ABOUT 37 YEARS, S/O.PAILY, CHRISTIAN, AGRICULTURIST, KICHARIKUNNATH HOUSE, MULLARINGADU KARA,VANNAPURAM VILLAGE. 8. GEORGE, S/O.VARGHESE, AGED ABOUT 50 YEARS, CHRISTIAN, PRIEST, KICHARIKUNNATH HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 9. YELDHOSE, S/O.CHERIAN AGED ABOUT 25 YEARS, NAMBANANIYIL HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. 10. BABY, S/O. KURIAN AGED ABOUT 50 YEARS, NADUKKARA HOUSE, MULLARINGADU KARA, VANNAPPURAM VILLAGE. BY ADVOCATE SHRI SAJAN VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.1 OF 2008 OF THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF KALPANA NO.207 OF 2005 DATED 23.11.2005 ISSUED BY THE CATHOLICOS CUM MALANKARA METROPOLITAN BASELIOS MARTHOMA DIDIMOS – 1. EXHIBIT P3 TRUE COPY OF I.A. NO.5135 OF 2010 IN O.S. NO.1 OF 2008 FILED BEFORE THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM. EXHIBIT P4 TRUE COPY OF ORDER ON I.A. NO.5108 OF 2010 IN O.S. NO.1 OF 2008 DATED 11.10.2010 PASSED BY THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM. EXHIBIT P5 TRUE COPY OF ORDER ON I.A. NO.5135 OF 2010 IN O.S. NO.1 OF 2008 DATED 11.10.2010 PASSED BY THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) No.382 of 2010 ==================================== Dated this the 20th day of October, 2010 J U D G M E N T Advocate Shri Sajan Varghese takes notice for respondents. Heard counsel on both sides. 2. This petition is in challenge of order dated October 11, 2010 passed by the learned Additional District Judge-I, Ernakulam on I.A. Nos.5108 and 5135 of 2010 in O.S. No.1 of 2008 of that court. Petitioners before me filed the suit for various reliefs alleging that respondent No.1 – St.Mary's Orthodox (Jacobite) Church, Mullaringadu, is Governed by the 1934 Constitution approved and upheld by the Supreme Court in the decision reported in P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001). That contention is however resisted by the respondents. While the suit was pending one Paulose Mathai who according to the petitioners is a parishioner of respondent No.1 fell seriously ill and was admitted in the hospital. Anticipating that he may not survive, petitioners filed I.A. No.5135 of 2010 seeking permission of learned Additional District Judge to bury the body of said Paulose Mathai in case of his death in the cemetry attached to O.P(C) No.382 of 2010 -: 2 :- respondent No.1-Church. I.A. No.5108 of 2010 was filed to advance hearing of the suit and the application. Learned Additional District Judge disposed of I.A. No.5108 of 2010 vide Ext.P4, order stating that there is no justifiable reason to advance hearing of suit since case is posted on 06.11.2010 and Paulose Mathai is still alive. In the light of dismissal of I.A.No.5108 of 2010 I.A. No.5135 of 2010 (seeking permission to bury the body of Paulose Mathai in case of his death) was closed as per Ext.P5, order. Those orders are under challenge in this Original Petition. Learned counsel for petitioners without going into the respective contentions raised by the parties in the suit states that Paulose Mathai expired on 19.10.2010 and that his body is kept in the mortuary of Dharmagiri Hospital at Kothamangalam awaiting orders from court for burial in the cemetry of respondent No.1. Learned counsel states that the matter is urgent and hence necessary orders may be passed on I.A. No.5135 of 2010. According to the learned counsel mental agony of close relatives of the deceased also may be taken into account. Learned counsel for respondents reiterated the contentions of respondents in the suit but in all fairness agreed that body of the late Paulose Mathai could be buried in the cemetry attached to respondent No.1 O.P(C) No.382 of 2010 -: 3 :- (church) but without Priests of the Orthodox faction attending burial in the cemetry or offering religious rites in the cemetry. This suggestion is agreeable to the petitioners also as represented by learned counsel. 3. Leaving aside the contentions parties have raised in the suit to be decided by the trial court, I consider it appropriate to issue directions in the lines now parties have agreed before me so that body the late Paulose Mathai could be laid to rest without delay. Hence the suggestion made by the parties is accepted and recorded. Resultantly, this Original Petition is allowed in the following lines: (a) Dismissal of I.A. No.5135 of 2010 is set aside and that application is allowed in the following lines: (i) The body of the late Paulose Mathai referred to in I.A.No.5135 of 2010 is allowed to be buried in the cemetry attached to respondent No.1-Church. (ii) The place for burial in the said cemetry shall be decided and pointed out by the present Managing Committee of respondent No.1-Church and conveyed to petitioner No.1 before 5.00 p.m., this day (20.10.2010) itself. O.P(C) No.382 of 2010 -: 4 :- (iii) It is directed that Priests (including Vicar) of neither faction shall be present in the cemetery for the burial. Above directions are made without prejudice to the contentions raised by the parties. THOMAS P. JOSEPH, JUDGE. vsv