IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 AS.No. 1031 of 1998(C) ---------------------- OS.114/1977 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANTS: DEFENDANTS 10,12, & 16 ------------------------------------------------------- 1.FR.THOMAS PUNNAKUZHI PUNNAKUZHI RESIDING AT ST.JOHN'S CHURCH AYYAMPILYMURI, KUZHUPILLY VILLAGE 2. T.P.ABRAHAM S/O PAULOSE THEKKEKARA HOUSE AYYAMPILLY MURI KUZHUPILLY VILLAGE 3. M.M.PAULOSE S/O MATHEW MAZHUVANCHERRY PARAMBATH KILIYANTHIL HOUSE AYYAMPILLY MURI ADDL.A4. M.A.KORATH , S/O M.K.ABRAHAM MAZHUVANCHERRY PARAMBATH KIZHAKKE VEEDU MANOPALLY ROAD, AYYAMPILLY (ADDITIONAL 4TH APPELLANT IS IMPLEADED AS PER ORDER DATED 17.8.2009 IN I.A. NO. 1067/2007) BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENTS: PLAINTIFFS AND DEFENDANTS 2,8,9 & 11 ------------------------------------------------------------------------------- 1.RAJIV S/O WEBSTER THEKKEKARA HOUSE AYYAMPILLY MURI COCHIN TALUK 2. DIXON, S/O THOMAS MAZHUVANCHERRY PARAMBATH(H) AYYAMPILY MURI, COCHIN TALUK 3. JAMES S/O THARIATH MAZHUVANCHERRY PARAMBATH KILIYANTHIL HOUSE AYYAMPILLY MURI 4. BABY S/O MATHEW MAZHUVANCHERRY PARAMBATH KILIYANTHIL HOUSE AYYAMPILLY MURI 5. MATHAI, S/O MATHEW ADVOCATE, THEKKEKARA AYYAMPILLY MURI 6. P.P.ITTY, S/O PAULOSE PUTHUSSERI HOUSE AYYAMPILLY MURI. 7. FR.GHEEVARGHESE MANAKKATT HOUSE EDAKKATTUVAYAL P.O ARAKUNNAM ADV. SRI.S.ANANTHASUBRAMANIAN FOR R1 & R5 SRI.PHILIP M.VARUGHESE FOR R1 & R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON 01/10/2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P.NO. 8153 OF 1998 IN A.S. NO. 1031 OF 1998 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 1.10.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 1031 of 1998 ---------------------------------------- Dated this the 1st day of October, 2009 JUDGMENT Defendants 10,12 & 16 in O.S.No. 114/1977 on the file of I Additional District Court, Ernakulam are the appellants. The plaintiffs 2 in number filed the above suit (i)to declare that the 1934 constitution of the Malankara Syrian Church is void and is not binding on the plaint church, St.Thomas Syrian Church, Ayyampilly and that the administration of the said church is to be conducted according to the decisions of the Edavaka Pothuyogam of the plaint church and (2) for an injunction restraining the defendants from functioning in the plaint church in accordance with the 1934 constitution of the Malankara Church. The trial court held that in view of the decision of Apex Court in Most.Rev.P.M.A. Metropolitan Vs. Moran Mar Marthoma reported in AIR 1995 SCC 2001, the prayers in the suit are not sustainable and the suit is liable to be dismissed. 2. In paragraph 142 sub paragraph (5) of the above said decision reads as follows: (5) The 1934 Constitution was approved at a validly convened meeting of Malankara Association, which Association was created by the Patriarch himself under the Resolutions of Mulanthuruthy Synod. The defendants in the present suits(Patriarch group) cannot question its legality and validity in view of the acts and conduct of the Partriarch and the members of his group subsequent to the judgment of this A.S. 1031 of 1998 -2 Court in AIR 1959 SC31. 3. Subparagraph (8) of the same paragraph reads as follows: (8)So far as the declaration of the Malankara Church being Episcopal in character is concerned all we need hold is that it is episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution also governs the affairs of the Parish Churches and shall prevail 4. After referring to the above Supreme Court Judgment the trial court held that the prayers sought for in the suit are unsustainable and therefore the suit is liable to be dismissed. The learned counsel for the appellant submitted that the trial court erred in not dismissing the suit in toto when the entire foundation of the case and the reliefs prayed for are found to be unsustainable in the light of the above referred Supreme Court decision. 5. The learned counsel for the contesting respondents brought to this Court's notice paragraph 141 of the above referred Supreme Court judgment in which it is submitted that If the plaintiffs mean merely spiritual control by saying episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means control over temporal affairs of,or title to or control over the properties of, the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the concerned A.S. 1031 of 1998 -3 Parish Churches He also submitted that each of these Parish Churches/Associations has its own constitution whereunder the general body of the Parishes is declared to be the final authority in temporal matters. 6. The learned counsel for the appellants submitted that If the plaintiffs mean merely spiritual control by saying episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means control over temporal affairs of,or title to or control over the properties of, the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the concerned Parish Churches. 7. On a plain reading of the above observations of the Supreme Court, it seems that under 1934 Constitution the Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches. . Since the Supreme Court observed that 1934 Constitution governs the affairs of the Parish Churches , the trial court ought to have examined the merits of the case before disposing of the suit. I am also of the view that the trial court ought to have framed the issue of maintainability of the suit and Instead of doing so, the trial court simply disposed of the suit. The trial court also held that a mere dismissal of the suit will not solve the problem, that unless proper directions are given for the religious services in the church and for the management of the properties , confusion and even there is chance for a clash between the two groups(i.e Catholicos group A.S. 1031 of 1998 -4 and Patriarch group) will remain in the church and that the church and its affairs are to be administered subject to the 1934 constitution of the Malankara church. This Court cannot approve the stand of the trial court in issuing directions after finding that the suit is not maintainable. 8. I am of the view that the trial court shall frame the issue of maintainability of the suit as a preliminary issue and also frame other necessary issues for adjudication of dispute before disposing the suit The issue regarding the maintainability of the suit in view of the Supreme Court decision shall be heard as a preliminary issue. For the said purpose the suit is remanded to the trial court. The trial court passed an interim order in I.A. No. 1349/1984 allowing the Catholicos group and Patriarch group to conduct religious services in the church on alternate Sundays by engaging priests of their Choice. The said interim arrangement shall continue till the disposal of the suit. In the result, the judgment and decree under appeal are set aside The case is remanded to the trial court for fresh disposal in the light of the findings made above. The parties shall appear before the court on 28.10.2009 The trial court shall hear and dispose of the suit within a period of 6 months from today if the suit is found to be maintianable. The appellants are entitled to refund of court fee paid in this appeal (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. 1031 of 1998 ---------------------------- JUDGMENT 1st October, 2009