IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 W.P(C).No. 24858 of 2008(H) -------------------------- C.M.A.3/2008 OF 1ST ADDL. DISTRICT COURT, THRISSUR O.S.NO.2344/2007 OF PRL. MUNSIFF COURT,THRISSUR (IA 9079/2007) .................... PETITIONERS: ------------ 1. FR.REJI MANKUZHA, MANKUZHA HOUSE VELLIKULANGARA, P.O. MUKUNDAPURAM, THRISSUR. 2. M.V.VARGHESE, MUNDASSERY HOUSE PEECHI, P.O.MANNAMANGALAM, THRISSUR. 3. POULOSE.C.I. CHEMMANAM HOUSE, PEECHI, PO.ASARIKADU, THRISSUR. 4. JIJU.P.VARGHESE, PALISSERY HOUSE MANNAMANGALAM, THRISSUR. BY ADV. SRI.K.K.APPU SRI.B.G.BHASKER RESPONDENTS: ------------- 1. JIJU VARGHESE, THANIKKOTTU HOUSE, CHITTOOR, PALAKKAD. 2. O.U.ALIAS, OONNUKALLIL HOUSE, MANNAMANGALAM, THRISSUR 3. T.S.REJI, THACHELIKKARA PUTHANPURAYIL HOUSE, VETTUKAD, PUTHANKADU, THRISSUR. 4. P.M.ISSAC, PALLIKUNNEL HOUSE, PEECHI MANNAMANGALAM, THRISSUR BY ADV. SRI.M.C.SEN (SR.) - R1 & R2 SRI.SAJAN VARGHEESE K. - R1 & R2 SRI.LIJU. M.P - R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J ---------------------------------- W.P.(C) No. 24858 OF 2008 ---------------------------------------------- Dated this the 1st day of September, 2008 J U D G M E N T This petition is filed under Article 227 of Constitution of India by the plaintiff in O.S. No. 2344 of 2007 on the file of Munsiff Court, Thrissur challenging Ext. P6 order passed by Addl. District Court, Thrissur in C.M.A. No. 3 of 2008. An appeal filed by the respondents/defendants challenging Ext. P4 order passed by the Trial Court in I.A. 9079/07 which is an application filed under Rule 1 and 2 of Order 39 of Code of Civil Procedure. The petitioners filed the suit for permanent prohibitory injunction restraining the respondents/ defendants and their men from entering into Mannamangalam Church, its Parish Hall, Sunday School and Kurishupally described as plaint schedule property and from obstructing first petitioner as well as his successors duly appointed by Thrissur Diocesan Metropolitan H.G. Yuhanan Man Meletius from functioning as vicar of the church under 1934 Constitution as amended by Hon'ble Supreme Court. Under Ext. P4 order, learned Munsiff filed a prima facie case with petitioners and granted an W.P.(C) No. 24858/2008 -2- order of temporary injunction as prayed for. The order of injunction sought for and granted are identical to the one sought for in the suit. Its correctness was considered by the learned District Judge in C.M.A 3 of 2008. Under Ext. P6 order, learned District Judge set aside Ext. P4 order and dismissed the application. Writ Petition is filed challenging Ext. P6 order contending that though respondents have filed objection to I.A. 9554 of 2007 another application filed for injunction restraining respondents from obstructing first petitioner from conducting burial was granted and a written statement was filed on 26.10.2007. No counter affidavit was filed to I.A. 9079 of 2007 till the petition was heard and posted for orders. The counter affidavit was filed only on the date on which Ext. P4 order was passed. It was argued that the learned District Judge refers Ext. P4 order accepting the additional document produced by the respondents in I.A. 73 of 2008, 106 of 2008 and 124 of 2008 which are applications filed under Rule 27 of Order 41 to receive them as additional evidence and all the petitions were allowed and additional evidence was permitted to be let in, for the sole reason that the documents are necessary to pronounce the judgment and are provided under Clause (b) of Rule 27 of Order 41 W.P.(C) No. 24858/2008 -3- of Code of Civil Procedure. The respondents did not satisfy the conditions provided under Rule 27 of Order 41. The District Judge was not justified in receiving the evidence or relying on the documents and for referring Ext. P4 order. It was argued that in the affidavit in support of applications under Rule 27 of Order 41 the ground taken was that the documents produced was with their counsel who conducted the case on behalf of O.S. 19 of 2003 was obtained later. If that be so, the learned District Judge can receive them as evidence only as provided under Clause A(a) of Rule 27 and the acceptance of the documents as additional evidence under clause (b) of Rule 27. Learned counsel also directed that if Clause (b) is to be applied appellate court has to be satisfied that it would be pronounced judgment on the materials available to the trial court and appellate court cannot look into additional documents and decide whether order passed by the appellate court is correct and as that was done by the First appellate court. Ext. P6 order is to be quashed and the case is to be remanded for fresh disposal that too not to the same court but to another court. Learned senior counsel appearing for the respondents argued that the trial court granted an order without considering the question properly and first appellate W.P.(C) No. 24858/2008 -4- court though received additional evidence considered the case of the petitioners and found that they did not establish a prima facie case and therefore balance of convenience is not in their favour and therefore exercising jurisdiction provided under Article 227 of Constitution of India, Ext. P6 order may not be set aside. Learned counsel pointed out that claim raised by the petitioner is that the church is governed by 1934 constitution. Respondents contended that the church has established only in 1953 and the petitioner cannot produce any documents to establish the administration of the church as provided under Section 43 of constitution. In such circumstances, the learned District Judge found that petitioner did not establish a prima facie case and there is no reason to interfere with that order. 2. In a petition filed under Rule 1 of Civil Procedure Code, the question to be decided is whether the petitioner established a prima facie case whether the balance of convenience is in his favour and if the order is not granted, prima facie injury will be caused. The trial court though granted an order the appellate court considered the question in detail. The petitioner sought to establish the case by producing Ext. A1 to A5. Ext. A1 is the report submitted before the W.P.(C) No. 24858/2008 -5- Apex Court in the Civil Appeal 8185 of 2001 where under Apex court held that the Malankara Church is governed under Section A (5) constitution and by Ext. A1 or Ext. A5, the right of the claim church cannot be decided. Ext. A4 is the order of appointment issued in favour of the petitioner by virtue of Ext. A4. Petitioner is entitled to get an order of injunction only it established prima facie that the church is governed by Ext. A5 constitution. That question can be determined only after recording the evidence. Therefore even if the acceptance of the additional documents by the first appellate court was not proper and was not in strict compliance of provisions of Rule 27 of Order 41 of Code of Civil Procedure, unless the petitioner could establish a prima facie case, Ext. P6 order cannot be interfered. When the first appellate court after analysing the temporary evidence submitted by the petitioner entered into a finding that the documents produced by the petitioner are not sufficient to establish a prima facie case that the church or its administration is governed by Ext. A5 constitution and the balance of convenience is not in favour of the petitioner and no irreparable injury will be cause to the petitioner. It is possible to this court to clear that order in exercise of the discretionary powers under Article W.P.(C) No. 24858/2008 -6- 227 of Constitution of India. Ultimately the suit is to be decided on the evidence to be recorded therein and the question whether Ext. A5 constitution covers the plaint church or not can only be taken after recording the evidence. In such circumstances Writ Petition is dismissed. Learned District Judge is directed to dispose of the suit untrammelled by the observation in Ext. P6 order or in this judgment. Writ Petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE vkm