IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 AS.No. 844 of 1998(A) --------------------- AGAINST THE JUDGMENT AND DECREE DATED 8-9-1998 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, ERNAKULAM APPELLANT(S): ----------- 1. VARKEY ABRAHAM, KAPPALAMKUDIYIL, NECHOOR 2. VARKEY JOHN, KARIATH, MANEED VILLAGE 3. KURIAN JACOB, MANGALATH, EDAKKATTUVAYAL VILLAGE 4. REV. FR. T.P. ELIAS EYNATTU HOUSE, VETTICKAL P.O. MULANTHURUTHY BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. ST. THOMAS ORTHODOX SYRIAN CHURCH, NECHOOR MANEED KARA, MANEED VILLAGE 2. REV. FR. P.M. KURIAKOSE, MOOLAMATTATHIL -:2:- MANEED VILLAGE, NECHOOR KARA 3. SIMON, KILIMANGALAM, MANEED 4. THOMAS MAR OSTHATHIOS RESIDING AT BISHOP'S HOUSE, MUVATTUPUZHA 5. K.C. VARKEY, KUNNUMMEL, NECHOOR ADDL. RESPONDENTS 4 6 TO 9 IMPLEADED 6. K.P. JOY, S/O. PAILY, AGED 44 YEARS, RESIDING AT KARIMBALAKKAT (HOUSE), NECHOOR P.O. 7. T.K. JOY, S/O. KURIAN, AGED 40 YEARS, RESIDING AT THADATHILPARAMBIL (HOUSE), NECHOOR P.O. ERNAKULAM 8. T.V. KURIAN, S/O. VARKEY, AGED 71 YEARS, PENSIONER, THOTTATHUKUNNATHU HOUSE, NECHUR, MANEED VILLAGE, TRUSTEE OF THE ST. THOMAS JACOBITE SYRIAN CHURCH, (IST DEFENDANT) 9. N.V. KURAIKOSE, S/O. PATHROSE, AGED 52 YEARS, NADUVILEDATH PUTHANPURAYIL, EZHAKKARANADU, MANEED VILLAGE, TRUSTEE OF THE ST. THOMAS JACOBITE SYRIAN CHURCH (FIRST DEFENDANT) Addl. R6 and 7 are impleaded Vide order dated 17-3-2004 in I.A. 2602/03 and Addl. R8 and R9 are impleaded vide order dated 9-3-2004 on I.A. 2680 of 2004. ADVs. SRI.N.SUKUMARAN & Sri. S. SHYAM FOR R1 and 2 SR. ADVOCATE SRI. K. RAMAKUMAR , P.V. ELIAS & GEORGE SIMON FOR R8 & 9 ADVS. SRI. PIRAPPANCODE V. S. SUDHEER & REJI PAUL FOR R5 ADV. SRI. K.C. ELDHO FOR R6 AND 7 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/08/2009, ALONG WITH CROSS OBJECTION THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: -:3:- DISMISSED I.A. NO. 3519/2008, I.A. NO. 2750/08, I.A. NO. 2552/08, I.A.NO. 1750/03, I.A. 2090/03, I.A. 3275/04,C.M.P. NO. 6875/98, I.A. NO. 3680/0, I.A. NO. 2228/2007, AND C.M.P. NO. 2157/1999, C.M.P. NO. 8313/1998 & C.M.P. NO. 6874 OF 1998 Sd/- V. Ramkumar, Judge I.A. NO. 1594/2007 ALLOWED Sd/- V. Ramkumar, Judge C.M.P. NO. 5482/199 CLOSED Sd/- V. Ramkumar, Judge V. RAMKUMAR, J. ............................................... A.S.No.844 of 1998 & Cross Objection ................................................ Dated this the 14th day of October , 2009 JUDGMENT In this appeal filed under Section 96 read with Order XLI Rule 1 C.P.C, plaintiffs 2 to 5 in O.S.No.32 of 1977 on the file of the 1st Additional District Court, Ernakulam (Designated church Court) challenge the judgment and decree dated 8.9.1998 passed by that Court. RELIEFS CLAIMED IN THE SUIT 2. The said suit originally instituted before the Munsiff's Court, Muvattupuzha as O.S.No.83 of 1976 by the deceased 1st plaintiff and the appellants herein was for the following reliefs:- a) a decree declaring that the 1st defendant St.Thomas Orthodox Syrian church, Nechur is a parish church included in the Malankara Orthodox Syrian church and that it is to be administered in accordance with the Malankara Orthodox Syrian Constitution by Moran Mar Baselius Marthoma Mathews-I, the present Malankara Metropolitan A.S.No.844 of 1998 :2: and Catholicos and his successors. b) A decree declaring that the 5th plaintiff (T.P.Elias Kathanar) is the Vicar of the 1st defendant church and the 2nd defendant (P.M.Kuriakose Kathanar) has no right to function as the Vicar or perform the duties of the Vicar in the said church and pass a decree of mandatory injunction restraining the 2nd defendant who is keeping custody of the keys, diary, parish register, marriage register, Baptism Register etc. in his capacity as the Vicar, to hand over the same to the 5th plaintiff. c) A decree of prohibitory injunction restraining the 2nd defendant from convening a meeting of the Parishners of the 1st defendant/church on 15.2.1976 or any other day and restraining defendants 3 to 5 from convening a meeting of the parishioners without preparing a voters list, calling for objections to the same and publishing the final list. d) A decree of prohibitory injunction restraining defendants 2 to 5 from spending any amount belonging to the church for any purpose other than the day to day affairs of the church and A.S.No.844 of 1998 :3: restraining them from permitting defendants 6 and 7 to enter the church or paying defendants 6 and 7 any money from out of the church fund. e) To pass a decree of prohibitory injunction restraining defendants 6 and 7 from entering the 1st defendant church and meddling with the administration of the church. f) To direct defendants 2 to 7 to pay the cost to the plaintiff . g) To grant such other reliefs that may be prayed for. THE PLAINT AVERMENTS 3. The plaint averments are as follows:- The 1st plaintiff (Kurian George Kathanar) and on his death, the 5th plaintiff, (T.P.Elias Kathanar) is a Parishner and Vicar of the 1st defendant St.Thomas Orthodox Syrian church, Nechur. Plaintiffs 2 to 4 are also members of the Parish of which plaintiffs 2 and 3 are members of the church Committee as well. The plaintiffs are instituting the A.S.No.844 of 1998 :4: suit for the protection and benefit of the 1st defendant church in their own behalf and also on behalf of the 1st defendant church. An application for granting permission under Order I Rule 8 C.P.C is also being filed along with the plaint. The 1st defendant is the St.Thomas Orthodox Syrian church, Nechur. The 2 nd defendant (P.M.Kuriakose Kathanar) is the Vicar appointed by the then Metropolitan of Kandanad diocese. The 3 rd defendant is the Co-Vicar of the church. Defendants 4 and 5 are the trustees approved by the then Metropolitan. The 1st defendant church is a Parish church included in the Kandanad diocese. Both the 1st defendant church and the Kandanad diocese are part of the Malankara Orthodox Syrian Congregation (മലങര ഓരഡ ക റയ ന ഭ). Malankara Orthodox Syrian Congregation, by virtue of its approved constitution, has an association called Malankara Association, a Managing Committee and an Episcopal Synod. The constitution of the church was approved by the Malankara Metropolitan and Catholicos. The said constitution is A.S.No.844 of 1998 :5: known as the Constitution of the Malankara Orthodox Syrian Congregation. Validity of the said constitution was challenged in O.S.No.111 of 1113 ME before the District Court, Kottayam. Ultimately, the Hon'ble Supreme Court dismissed the suit upholding the validity of the constitution. The said constitution received approval in the 1st defendant church which is administered in accordance with the said constitution. Even if any of the Parish churches does not specifically approve or adopt the constitution, still the said constitution is binding on all the Parish churches included in the Malankara Orthodox Syrian Congregation which is an Episcopal church. The 6 th defendant (Moran Mar Baselius Paulose II) was appointed by the then Malankara Metropolitan and Catholicos as the Metropolitan of Kandanad diocese. In pursuance of the said appointment, the 6 th defendant had executed a treaty ( ഉടപട ) with the then Malankara Metropolitan and Catholicos and he was administering the church in accordance with the aforementioned constitution. Subsequently, the 6th A.S.No.844 of 1998 :6: defendant started defying the constitution and Canon Law. Besides, he tried to set up a new church directly under the administration of the Patriarch of Antioch. Therefore, a show cause notice was issued to the 6th defendant . After taking evidence and after hearing him, the 6th defendant was removed from the Episcopal Synod of the Malankara Orthodox Syrian church and also from the membership of the church. This fact was informed by the then Malankara Metropolitan and Catholicos to all the churches. After the expulsion of the 6th defendant, the administration of the Kandanad diocese of which the 1st defendant church is a constituent, became vested with Moran Mar Baselius Ougen I, the Catholicos of the East and Malankara Metropolitan. This was in accordance with the provisions of Malankara church Constitution. Presently his successor, Moran Mar Baselius Marthoma Mathews-II administers the diocese of Kandanad and the Orthodox Syrian church. Moran Mar Baselius Mathews-II removed the 2nd defendant (P.M.Kuriakose Kathanar) from the Vicarship of the 1st defendant church and appointed the 5th plaintiff(T.P.Elias) A.S.No.844 of 1998 :7: as the Vicar of the church. The Kalpana(appointment order) dated 21.1.1976 issued in that behalf is produced along with the plaint. It was directed in the Kalpana that the 5th plaintiff should take charge from the 2nd defendant. That Kalpana had been read out in the 1st defendant church. In spite of the fact that the 5th plaintiff had issued a registered notice on 2.2.1976 to the 2nd defendant demanding handing over of the charge of Vicar with records and keys of the church within three days, the 2nd defendant did not comply with the same. From 21.1.1976 onwards the 5th plaintiff is the duly appointed Vicar of the 1st defendant church. The 2nd defendant has no right to continue as a Vicar of the church. He has no authority to bind the 1st defendant church as the Vicar. The 1st defendant church is being administered in accordance with the provisions of Malankara Orthodox Syrian church constitution. Neither defendants 2 to 4 nor anyone in the Parish has any right to act in violation of the provisions of the constitution. The constitution contains specific provisions regarding the convening of the general body of A.S.No.844 of 1998 :8: the church. Those provisions are contained in Chapter II clauses 7 to 12. According to the provisions of the constitution, the general body can be convened only after publishing the list of the persons having a right to vote in the church elections. A meeting convened without complying with the above provisions is not legal. Only the Vicar is vested with the right to call a meeting of the parishioners. Since the 2nd defendant is not the Vicar of the church, he has no right to call a meeting of the parishioners. That apart, if the 2nd defendant is allowed to do so that will not be congenial to the interests of the church. However, defendants 2 to 5 jointly and in collusion with defendants 6 & 7 have taken steps to convene a meeting of the parishioners on the 15th of this month. Persons who have no authority to meddle with the administration of the church are with the blessing of defendants 2 to 5 and at the instigation of the 5th defendant, trying to create an artificial majority in the church and take over the administration of the church. If this is allowed to be done, it will adversely affect the church. It has to be A.S.No.844 of 1998 :9: prevented by the issuance of a prohibitory injunction. The 6th defendant has no membership in the Malankara Orthodox Syrian church nor has he any administrative authority. He is trying to establish an administration directly under the Patriarch of Antioch. The approved constitution of the Malankara Orthodox church has not invested any power with the Patriarch of Antioch to exercise any sort of authority over the Malankara Orthodox church. Since Patriarch of Antioch acted against the constitution and the Canon Law, he himself has severed connection with the Malankara Orthodox church. It is understood that the Patriarch of Antioch called the 6th defendant to the former's seat and consecrated him as Catholicos with the name Moran Mar Baselius Paulose II. Similarly, 7 th defendant (Thomas Mar Ostathius) is understood to have been ordained as a Bishop by the Patriarch. The Patriarch has no authority to ordain Catholicos or Bishop for the Malankara Orthodox Syrian church. No permission was given to the Patriarch to do so either by the Episcopal synod of the Malankara A.S.No.844 of 1998 :10: Metropolitan or Catholicos or the managing committee of Malankara Association. 7th defendant has no administrative authority over any church in the Malankara Orthodox Syrian church, including the 1st defendant church. Therefore, none of them has any right to enter the 1st defendant church or to do any act in the matter of governance. Defendants 6 & 7, in collusion with defendants 2 to 5 are trying to trespass into the 1st defendant church. It is understood that it has been decided to receive D6 and D7 in the church and to make available to them the funds belonging to the church. All such intended activities are illegal and the plaintiffs and the other parishioners are against the said proposal. For the interests of the 1st defendant church, it is highly essential to issue a declaration that the 1st defendant church is a parish church under the Malankara Orthodox Syrian church and that the church is to be administered as per the constitution of the Malankara church under the patronage of the Catholicos and the Malankara Metropolitan, Moran Mar Baselius Marthoma Mathews-I and his successors. A.S.No.844 of 1998 :11: Defendants 6 and 7 are to be prohibited by an injunction restraining them from doing any act against the interests of the church, defendants 3 to 7 are to be restrained from convening a meeting of the parishoners. Further, the said defendants are bound to hand over the records and keys of the church to the 5th plaintiff who is the present Vicar of the church. This suit has been necessitated since defendants 2 to 7 met and decided not to submit to the administrative sovereignty of the Catholicos. 4. After its institution, the suit was transferred to the designated church Court at Ernakulam for trial and disposal. THE DEFENCE 5. The suit was resisted by defendants 2,3,5, and 6 of whom defendants 2 , 3 and 5 filed a joint written statement contending inter alia as follows:- The suit is not maintainable. The plaintiffs have no cause of action. They have ceased to have communion with the Jacobite Syrian faith and are A.S.No.844 of 1998 :12: presently not members of the first defendant church. They are the followers of late Baselius Ougen – I who was found guilty of deviations from the fundamental faith of the church by the Universal Episcopal Synod of the Syrian Orthodox church (of which Malankara church is a part) held on 16-6-1975 and on subsequent days. On the basis of the said decision of the Synode which is the highest Ecclesiastical Tribunal in the church, Patriarch of Antioch of the East declared Basselius Ougen I Mathews Mar Athanesius and their partisans as apostates on 21-8-1975. Mathews Mar Athanesius now calls himself as Basselious Marthoma Mathew-I. The first defendant is described in the plaint as the church which the plaintiffs call as the “Nechur St. Thomas Orthodox Syrian church”. The correct name of the church is “Nechur Jacobite Syrian Marthommen church” (hereinafter called as “the church” ). The said church is not a legal entity and cannot be sued as a defendant by itself. It is further illegal for the church to be represented by the A.S.No.844 of 1998 :13: plaintiffs. The church is a public trust and the aid of the court is sought for against the trustees or administrators for authorising them to discharge their duties in relation to the objects of the trust. The reliefs prayed for in the plaint are really and substantially those stated in Sec. 92 (1) of the Code of Civil Procedure, (C.P.C. for short). Hence, the suit without obtaining sanction under Sec.92 (1) C.P.C. is not maintainable. The matters raised in this suit, particularly, those relating to relief A are directly and substantially in issue in O.S. 81 of 1977 on the file of this Court (designated church Court) the same having been initially filed as O.S. No. 142 of 1974 on the file of the Sub Court, Kottayam. Hence, the present suit is barred under Sec.10 and Order II Rule 2 C.P.C. The plaintiffs have no possession of the plaint schedule property nor have they any role in the administration or management of the same or any control over the same. The plaintiffs are not entitled to any of the reliefs prayed for in the suit. The claim by the first A.S.No.844 of 1998 :14: plaintiff and thereafter by the 5th plaintiff to be the Vicar of the church is unsustainable. The Vicar or Priest of the church is to be nominated by the parishioners or accepted by them and appointed by the Diocesans Metropolitan. The first and 5th plaintiffs have none of those qualifications. The Malankara Metropolitan has no authority to appoint a Vicar in the church and he cannot exercise the powers of the Diocesan Metropolitan unless he is accepted as such by the diocese. The Vicar of the church is the 2nd defendant. The church was established by the forefathers of the present parishners for conducting religious services by religious dignitaries who had the spiritual grace obtained from the Patriarch or his delegate for the benefit of the parishners. No person including the religious dignitaries who is not subject to the Supreme spiritual authority of the Patriarch has got any right in the church. The Kandanad Diocese or its authorities have no power over the temporalities of the first defendant church and such power is exclusively A.S.No.844 of 1998 :15: vested in the parishioners. The church had adopted a set of rules for its administration and those rules are incorporated in an udampadi (treaty) which was registered on 7-12-1087 M.E. in the Aikaranadu Sub Registry. The administration of the church is carried out under the provisions of the said Udambadi with its subsequent amendments. The alleged constitution relied on by the plaintiffs and referred to in paragraph 20 of the plaint is not applicable to the church. The Malankara Syrian Christian Association is an organization formed for fellowship and co-operation in the common affairs. It has no ecclesiastical, spiritual or temporal authority over the new parish churches. Any Constitution adopted by that body and purported to be for the administration of individual parish churches is without jurisdiction and hence null and void. It was never enforced or accepted in the first defendant church. The Patriarch has refused to accept the said Constitution. The provisions of the said constitution are unreasonable, in-conflict with the A.S.No.844 of 1998 :16: Constitution adopted at the Mulanthuruthi Synode in- defines of Court decisions, against the usages which existed in the church and in violation of the cardinal principles of faith and the common law . The basic structure of the original church has been totally changed and a new church has been created. The allegation that the church is an episcopal church is not correct. It is episcopal only in spiritual matters and in all other matters it is congregational. The 6th defendant has been exercising the functions of the Metropolitan of the Kandanad diocese and the first defendant church from 1952 onwards by reason of his consecration by the Patriarch and by reason of the election and acceptance by the parishioners and the people in that diocese. There was no valid or effective appointment by Baselius Gee Varghese. The 6th defendant has not executed any treaty accepting or approving any such appointment by Baselius Gee Varghese. He has not conducted the administration under the provisions of the Constitution relied on by A.S.No.844 of 1998 :17: the plaintiffs. The alleged proceedings against the 6th defendant are void ab initio, mala fide and incompetent. It cannot bind the church or 6th defendant. The charges against him are false and the alleged decision against him by the Malankara Episcopal Synode is without jurisdiction and in violation of the principles of natural justice. The 6th defendant is continuing to exercise all the powers of the diocesan Metropolitan in the Ist defendant church. Basselios Marthomma Mathews or Baselious Ougen-I cannot get any authority over the first defendant church or the Kandanad Diocese. The provision in this behalf in the Constitution relied on by the plaintiffs in paragraph 4 of the plaint is void. There is no valid order removing the 2nd defendant from Vicarship of the church nor is there any order appointing the first or 5th plaintiff in his place. Baselios Marthoma Mathews has absolutely no power to make any such appointment. The Vicar cannot be appointed or removed without the knowledge and consent of the parishioners. The plaint A.S.No.844 of 1998 :18: allegation that the letter dated 21-1-1976 referred to para 5 of the plaint was publically read in the church is false and hence denied. The 2nd defendant is not aware of the registered notices dated 2-2-1976. The 2nd defendant still continues to be the Vicar of the church and he has the authority to continue as such. The plaintiffs have no right over the first defendant church nor have they any right to represent the church. They have ceased to be the members of the Committee. The church is administered in accordance with the Rules framed by the parishioners and not as per the provisions of the Constitution relied on by the plaintiffs. The meetings are also held as per rules adopted in the church. According to those rules all members who have attained 21 years of age and who have taken confession and who have paid the ressissa can be members of the poduyogam that is general body. But a member who attains the age of 21 years and who wants to participate in the general body for the first time must pay a fee of one rupee. The 2nd A.S.No.844 of 1998 :19: defendanat is the Vicar of the Ist defendant Church. It is the Vicar who announces the holding of the meetings unless he is unable to do so or refuses to do so in which case others can convene the meeting. It was with full authority in his capacity as the Vicar that the 2nd defendant convened the Parish meeting on 15- 2-1976. The plaint allegations against the proposed meeting on 15-2-1976 are wrong and without any basis. The proposed meeting was essential for the welfare of the parishioners of the church. The allegations leveled against the 6th defendant and the Patriarch of Antioch are denied. The 6th defendant has all episcopal functions in the first defendant church. He is not only a member of the Malankara church but is also the highest local ecclesiastical authority in the church. It is wrong to state that he attempted to establish direct administration of the church through the Patriarch. The powers of the Patriarch are definitely bestowed on him and the Malankara Association with a majority of laymen cannot abridge or A.S.No.844 of 1998 :20: curtail his spiritual powers. The alleged Constitution and its provisions have been repudiated by the Patriarch and are not binding on him. The plaint allegation that the Patriarch has severed connection with the Malankara church is false. It is the plaintiffs and the religious dignitaries whom they follow who have lost communion with the Malankara Jacobite church and that is due to their deviations from the fundamental faith. It is true that the 6th defendant is now the Catholicos of the East he having been consecrated by the Patriarch on 7-9-1975. It is also true that the 7th defendant has been consecrated as a Metropolitan by the Patriarch who is the supreme spiritual authority in the Syrian Orthodox church of which Malankara church is an archdiocese. The Patriarch of Antioch had the full authority to conduct the aforementioned consecration and the consent of the authorities referred to in paragraph 13 of the plaint is not necessary for such consecrations by the Patriarch. The 6th and 7th defendants have full A.S.No.844 of 1998 :21: authority to enter the church and to perform all episcopal functions therein. The plaint allegation that defendants 6 and 7 are attempting to forcibly enter the church is not true. The 6th defendant is making his episcopal visit to the church very often and he is always welcomed in the church with the greatest honour and gratitude. The plaintiffs have absolutely no right to restrain the 6th defendant from visiting the church. The plaintiffs have no cause of action against these defendants. They are not entitled to any of the