IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 OP(C).No. 237 of 2011(O) ------------------------ CMA.4/2010 of SUB COURT, THIRUVALLA .................... PETITIONER(S) ------------------------ JOSEPH M.VARGHESE, MULLASSERIL, KUMBANADU MURI,, KOIPREM VILLAGE, NOW RESIDING AT 504, HIDE AWAY COURT, EULESS, TEXAS. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.G.UNNIKRISHNAN SRI.S.VINOD BHAT SRI.S.SREEDEV RESPONDENT(S): ------------------------ 1. THE MALANKARA MARTHOMA SURIYANI SABHA, THIRUVALLA. 2. REV. DR.JOSEPH MARTHOMA METROPOLITAN, PULATHEEN, THIRUVALLA, REPRESENTING THE IST RESPONDENT. 3. THE SABHA SECRETARY, MARTHOMA SABHA OFFICE, THIRUVALLA, REPRESENTING THE IST RESPONDENT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J ---------------------------- O.P.(C).NO.237 OF 2011 ----------------------------------- Dated this the 19th day of January, 2011 JUDGMENT Plaintiff in O.S.No.283/2010 on the file of the Munsiff Court, Thiruvalla is the petitioner. He is the petitioner in I.A.No.1492/2010. The said I.A. was filed for a temporary injunction restraining the counter petitioners from taking any decision on 12-06-2010 or any subsequent day in respect of nomination of persons as episcopal candidates till the petitioner's right to send proposal under the constitution of the Sabha and the circular issued by the metropolitan is established. 2. The case of the petitioner is that he is a member of the 1st counter petitioner, 'Malankara Marthoma Suriyani Sabha'. The counter petitioners 2 and 3 are the metropolitan and the secretary of the 1st counter petitioner Sabha. The marthoma sabha constitution envisages a combination of selective and elective procedure with respect O.P.(C).NO.237 OF 2011 2 to the choice of candidates for consecration as episcopal of the church. On 16.03.2010 the metropolita has issued a 'Kalpana' informing the members of the church regarding their right to propose the names of the persons or nominations as episcopal candidates. It was also stated in the above said 'Kalpana' that the persons sending the proposal to the sabha council should also send their membership certificate from the vicar of their parish and that the proposal should reach at the sabha office before 5 p.m. on 09-04-2010. The petitioner approached the vicar (the 4th defendant in the suit) for a certificate of his membership as required in the 'Kalpana' issued by the metropolita. It is alleged that the 4th defendant vicar refused to issue the above certificate without any reason. Thereafter he approached the counter petitioners 2 and 3, but they have not taken any positive steps. It is averred that the act of the 4th defendant in not issuing a membership certificate amount to denial of petitioner's right O.P.(C).NO.237 OF 2011 3 to send proposal of the names of persons for the nomination as episcopal candidates. The petitioner learned that the episcopal nomination board will take a decision on the above aspect on 12.06.2010 or any subsequent date which would affect the right of the petitioner provided under the constitution of 1st counter petitioner Sabha. Hence the petition seeking a temporary injunction as stated above. 3. The counter petitioners in the I.A seriously opposed the interim prayer. The trial judge observed that it is not seriously disputed that there are only 10 persons in the Marthoma Sabha qualified and included in the list submitted before the Episcopal Nomination Board. The learned judge observed that from the above stated undisputed statement it was revealed that there is no additional names that the petitioner would possibly propose and therefore, the learned judge found that even if the petitioner's right of nomination was denied would not make any difference. The learned judge therefore, declined to pass an order of injunction as O.P.(C).NO.237 OF 2011 4 prayed for. Petitioner preferred C.M.Appeal No.4/2010 challenging the order passed by the trial judge. The appellate court also considered the contention of the parties in detail. Petitioner contended that the order of the lower court is un-sustainable and there are 13 persons qualified to be nominated as Episcopal Candidates. Petitioner produced a list of 13 qualified persons and contended that the dismissal of the application is unsustainable on facts and law. 4. The learned judge observed that the mere fact of the names of qualified persons submitted for nomination as Episcopal candidates cannot be taken as a ground to hold that the petitioner's constitutional right have been denied. The learned judge considered the question as to whether the petitioner's constitutional rights have been denied. For reasons more than one the learned judge took the view that there is no prima facie case made out by the petitioner and further held that as the petitioner has failed to show that the O.P.(C).NO.237 OF 2011 5 constitutional right has been denied by the act of Vicar, it cannot be said that the petitioner sustained irreparable injury. The impugned order passed by the trial judge was confirmed in appeal but, for different reasons. 5. It is not disputed that the Board considered the names of the nominees. In view of the said facts there is little scope for proceeding further with the application for injunction at this stage. In the circumstances, for the ends of justice a direction to dispose of the suit at an early date will serve the purpose. In the said facts and circumstances, I do not propose to go into merits of the contentions raised by the parties. The trial court can proceed with the trial of the suit and dispose of the same within a period of 9 months from the date of receipt of a copy of this judgment, untrammeled by any of the observations made by the courts below. It is made clear that the observations and conclusions made by the learned judges are for the limited purpose of deciding the interim application for injunction. O.P.(C).NO.237 OF 2011 6 The Original Petition is disposed as above. Parties are entitled to amend the pleadings and adduce evidence, if so advised. HARUN-UL-RASHID, JUDGE pm