Special Leave Petition Model Form

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.       OF 2015

With

PRAYER FOR INTERIM RELIEFS

(Arising out of the Final Judgment and Order of the by the  High Court of Kerala at Ernakulam,  dated 21-08-2015, in Regular First Appeal No 193 of 2014

 

IN THE MATTER OF:

V.E. Thomas & Others                                            ………Petitioners

                                                            VERSUS

Mathai Varghese & Others                                     ………Respondents

WITH

 

 I.A. No.           /2015: Application for exemption from filing official

                                    translation of Annexures P1 to P11 & P14 & P15

   

PAPER BOOK

(For Index Kindly See Inside)

 

 

 

 

 

 

 

ADVOCATE FOR THE PETITIONERS:             MR. P.K. MANOHAR

 

INDEX

 

S.L. NO.                PARTICULERS                                  PAGES

 

 

1. Office Report on Limitation   A

2. Listing Performa A1 – A2

3. Synopsis and List of Dates    B –

4. Impugned Judgment and order of the

          High Court of Kerala at Ernakulum

          dated 21.8.2015 in RFA No. 193 0f 2014

5. Special Leave Petition with Affidavit .
6. 6. ANNEXURE P-1: A True copy of the Cochin Award, dated 1913 to 4.7.1928.
7. ANNEXURE P-2: A True English translation of the decision of the General Body of the 11^TH Respondent Church dated 9.03.1952.
8. ANNEXURE P-3: A True English translation of the decision by General Body of the First Petitioner Church dated 25.7.1971.
9. ANNEXURE P-5: A True English translation of the decision of the General body Church dated 30.3.1975.
10. ANNEXURE P-6: A True English translation of the decision of the General Body, dated 4.05.1975.
11. ANNEXURE P-7: A True English translation of the decision of the General Body, dated 8.01.1978.
12. ANNEXURE P-8: A True copy of the said Plaint being as O.S.No.10/2003.
13. ANNEXURE P-9: A True copy of the written Statement filed by as O.S.No.10/2003, dated Oct. 2003.
14. ANNEXURE P-10: A True English translation of the said           minutes of the meeting by District Collector, Ernakulam,    dated 28.3.2004.
15. ANNEXURE P-11: A True English translation of the minutes  of the decisions arrived  in the presence of the          RDO, Movatunpuzha, dated 29.3.2004.
16. ANNEXURE P-12: A True copy of the amended Written Statementby defendants 1 to 3, dated 26.5.2008.
17. ANNEXURE P-13: A True copy of the said Writ Petition W.P[C] No 29572 of 2008, dated 6.10.2008.
18. ANNEXURE P-14: A True copy of the said judgment of the Kerala High Court in W.P[C] No 29572 of 2008, dated 15.10.08.
19. ANNEXURE P-15:A True copy of the said Written Statement by Additional defendants 6 to 10, dated 30.11.10.
20. ANNEXURE P-16: A True copy of the said Written Statement   by 5^th defendant, dated 4.1.2011.
21. ANNEXURE P-17: A True copy of the said of the said Judgment by the First Additional District   Court,      Ernakulam, dismissing   the suit  O.S NO 10/ 2013, dated          10.2.14.
22. ANNEXURE P-18:A True copy of the said RFARegular First Appeal No 193   of 2014 before the High Court of Kerala, dated 4.3.2014.
23. ANNEXURE P-19: A True copy of the said IA No 623/14 by plaintiffsfor interim orders, dated 4.3.2014.
24. ANNEXURE P-20:A True copy of the said Written Order of the High Court   in IA No 623/14 in RFA 193/14, dated      14.03.14.
25. ANNEXURE P-21:A True copy of the said I.A. 1286/2014 by 4^th defendant in the Suit, dated 10.06.14.
26. ANNEXURE P-22: A True copy of the said I.A. 1431/2014 by Fr Viju Elias, dated 17.06.14.
27. ANNEXURE P-23: A True copy of the said counter affidavit to IA No 1286/2014, dated 19.06.14.
28. ANNEXURE P-24: A True copy of the Counter Affidavit is annexed to IA No 1431 of 2014 by 4^th  respondent, dated 13.02.15.
29. ANNEXURE P-25: A True copy of the IANo 1817  of 2015, dated 21.08.15.
30. ANNEXURE P-26: A True copy of the Order in IA 1817/15 , dated 21.08.2015.
31. ANNEXURE P-27: A True copy of the order in in I.A No 1431 of 2014 & I.A No 1286 of 2014 in RFA No 193 of 2014, dated 21.8.2015.
32. I.A.NO. /2015: Application for Exemption from filing official translations of Annexures P1 to P11 & P14 & P15

 

 

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.              OF 2015

 

IN THE MATTER OF:

V.E. Thomas & Others                                      ………Petitioners

                                      VERSUS

Mathai Varghese & Others                      ………Respondents

 

OFFICE REPORT ON LIMITATION

 

1. The Petition is/are within time.
2. The Petition is barred by time and there is delay of days in filing the same against order dated. And petition for condo nation of    days delay has been filed.
3. There is delay of days in refilling the petition and petition for condo nation of days delay in refilling has been filed.

FIELD ON : ……..2015                    BRANCH OFFICER

NEW DELHI.

 

 

 

SYNOPSIS

1. St Mary’s Syrian Orthodox Church, Varikoli, Ernakulam District Kerala, 11^th Respondent herein, is an ancient Church put up in the year 1928 by the people of the locality for the religious worship as per Jacobite faith and tradition in the Apostolic Succession of St. Peter through the Patriarch of Antioch. The Church has about 800 families comprising of 4000 members all of whom accept the spiritual superiority of the Patriarch and it is an article of faith. The 11^th RespondentChurch has not accepted the 1934 Constitution and therefore is not bound by the said Constitution. The present suit is an attempt by the Malankara Association/ Catholicos Group to capture the Church and its properties by claiming that the Church is governed by the 1934 Constitution. The 11^thRespondent Church has all along maintained its independence and allegiance to the Patriarch of Antioch.
2. It is relevant to state that during the first 75 years after its establishment the Malankara  Association has not interfered in the management of the 11^th Respondent/First defendant Church nor has it sent any of their priests to conduct services in the Church. The Malankara Association and its authorities did not challenge the decisions taken by the 11^th Respondent Church in 1972,1973,1974 to have no connection with it and when these decisions were communicated to them by registered post.  This only goes to establish that the 11^th Respondent Church was always independent of the Malankara Association a Voluntary Association.

3. It is necessary to state that the Petitioners have an inalienable ConstitutionalRight under Article 26 of the Constitution of India to manage their own place of worship and no one can violate that right notwithstanding the Malankara Association’s 1934 Constitution.  This right being guaranteed by the Constitution of India it cannot be infringed by the 1934 Constitution and its authorities;.

4. That the present  dispute has vertically divided the 1.8 million Syrian Chrisians in Kerala. There are over 60 suits at various stages in the Courts in Kerala. There are at least 10 pending cases in this Hon’ble Court pertaining to the management of the Parish Churches. That it is time to give a quietus to the dispute and permit the two warring groupsto part ways in the interest of peace in the Church and in keeping with the democratic  will of the believers/worshippers.
5. This is necessary since on 30.6.2002 the Patriarch Group haveconstituted the Jacobite Syrian Christian Association  and the said Association has been peacefully carrying on its affairs for the last over 13 years. Several Parish Churches have democratically and voluntarily accepted the said Constitution.11^th Respondent Church in a duly constituted General Body meeting held on 30.6.2002 has decided to associate itself to the said Jacobite Syrian Christian Association and have accepted its Religious Dignitaries to maintain its Object of Foundation which is its faith in the Apostolic Succession from the Apostolic Throne of St Peter through the Patriarch of Antioch and His authorized delegates.
6. The present suit is filed, after obtaining sanction under Section 92 of the Civil Procedure Code,1908, by 10 parishioners (Catholicos Group) claiming for a declaration that Defendants 2 and 3 (Respondents 12 and 13 herein) have no right or authority to claim the status of trustees of the 1st Defendant Church (Respondent 11 herein) and for a consequential injunction to restrain them from functioning as trustees. A further mandatory injunction was sought against the 4^th defendant (14^th Respondent herein) to call for a general body of the 1^st defendant church and to conduct election to the new managing committee. It was subsequently amended to include the relief of injunction restraining defendants from getting religious services conducted through their Priests.

7. The Trial Court dismissed the Suit holding that there are two factions of the Parishioners in the first defendant Church; the plaintiffs do not recognize the Patriarch of Antioch, the supreme religious head of the Malankara Church on whom many of the parishioners repose faith and therefore they are not entitled to the discretionary relief claimed.

8. The High Court, however, allowed the First Appeal without appreciating the material on record or formulating any point for consideration and on an erroneous interpretation of the Judgment of this Hon’ble Court in P.M.A Metropolitan vs.   Moran Mar Marthoma Mathews & Anr –[1995] SUPP.1 SCR 542 .    That when the Trial Court dismissed the Suit, status quo was directed to be maintained by the First Additional District Court ,Ernakulam, Thereafter, during the pendency of the Appeal in the High Court of Kerala ,interim order of Status quo as directed by the Trial Court in its judgment was directed to continue.  That the High Court of Kerala after allowing the Appeal and decreeing the Suit, has directed status quo to be maintained for 45 days from date when judgment to enable the contesting respondents therein/Petitioners herein to approach this Hon’ble Court. The Stay is likely to expire on 10.10.2015.

9.   In the submission of the Petitioners the High Court erred  in holding that:

[i] The first defendant/ 11 Responmdent , St Mary’s Syrian Orthodox Church, Varicoli, is a Constituent Unit of the Malankara Church;[Paragraph 10 of the Judgment];

[ii] that the declaration at paragraph 142 [4] of AIR 1995 SC 2001[ Page  Placitum    of (1995) Supp.1 S.C.R 542), that the Spiritual Head of the  Malankara Church,is subject to recognition by the Malankara Church and that the Patriarch of Antioch, the Spiritual Head is a Patriarch holding office in accordance with Article 101 of the 1934,Constitution of the Malankara Church;[Paragraph 11 of the judgment];

[iii] That there is no alteration in articles of faith in denying the Spiritual Supremacy of the Patriarch of Antioch declared by this Honorable Court;

[iv] Relied on the minority Judgment rendered by Justice  R.M.Sahai without noticing and following the directions given by Three Learned Judges of this Honorable Court in 1997 [1] SCR 936 directing framing of decree which  does not contain any of the declarations or conclusions contained in the minority judgment[ [Paragraph 14 of the Judgment];

[v] In Granting the decree with directions to Additional tenth respondent impleaded on the same day as the impugned Judgment;

[vi] In not appreciating that the 11^th Respondent Church has democratically opted to Associate itself to the Jacobite Syrian Christian Association to continue to maintain its Object of foundation and it is protected under Article 19[1][c],Article 25 and Article 26 of the Constitution of India;

10. The Impugned Judgment rendered in First Appeal is the result of non-consideration of relevant documentary and oral evidence and without even framed the points for determination which is Mandatory as provided in Order 41 Rule 31 of the Civil Procedure,1908.The finding at paragraph 14 that there is nothing on record as to the strength of the Parishioners who owe allegiance to the Patriarch Faction is the result of non application of mind tothe Parish Registers of the First Defendant Church containing names and details of all Parishioners. The entire Parishioners of the Church consisting of about 4000 members including the plaintiffs were accepting the Spiritual Supremacy of the Patriarch of Antioch;  

11. This Honorable Court in [1995] Supp.1 SCR 542-has disapproved the declaration by the Division Bench of the High Court of Kerala that the Parish Churches are Constituent parts of the Malankara Church [Please refer to Placitum A to E read with the Foot-Note at Placitum H OF [1995]  1 S.C.R Page 682]. The reliefs asked for in said the Suit that the “Malankara Church is not a union or federation of autonomous Church Units” has not been granted by this Honorable Court;

12. Legal effect following from Page No 648, Placitum F to H, Page 673,Placitum F to H and Page 674, Placitum B to D of [1995] SUPP 1 SCR 542, is that the Patriarch of Antioch, the Spiritual Head, continue to have the inherent power of General Supervision over the Spiritual Governance of the Malankara Church inspite of the revival of the Catholicate in Malankara. This is a power that is beyond the 1934, Constitution framed by a Voluntary Association not in 1876 but in 1934. It is a power inherent in the Patriarch of Antioch, the Spiritual Head, which is vested in him for the sole reason that he is the present direct successor of St Peter the Chief Disciple of Jesus Christ. Impugned Judgment has violated the Specific Declaration that the Patriarch of Antioch is the Spiritual Head of the Syrian Church of which Malankara Church is a Division and also that he is Spiritually Superior to the Catholicos of the Malankara Church, by not noticing and appreciating the effect of the above paragraphs of this Honorable Court’s Judgment;

13. This Honorable Court has declared at Page 687, Placitum F to G that the Travancore Royal Court Judgment of 1889 to be the basic Constitution of the Malankara Church.Finding in the impugned Judgment that the Patriarch referred to in Paragraph 142 [4] of AIR 1995 SC 2001[ Page 684, Placitum H AND Page 685, Placitum A of [1995] SUPP 1 S.C.R 542], is the Patriarch “Canonically recognized in accordance with Article 101 of the 1934 Constitution” is a gross misconception in the impugned Judgment by the Court resulting from misleading submissions by the Counsel of the parties. The Court did not notice the effect of declaration by the Apex Court that Travancore Royal Court Judgment of 1889 is accepted by the parties to be the basic Constitution of the Malankara Church and the Spiritual superiority of the Patriarch of Antioch over the Catholicos and Malankara Metropolitan is not dependent on the 1934,Constitution of the Malankara Association;.

14. The impugned Judgment amounts to an indirect declaration that the Malankara Church is an autocephalous church,which is contrary to the decision by this Honorable Court,  rejecting the contention of the Catholicos Faction that the Malankara Church is  an Autocephalous Church.[ Page No     679,Placitum G& H AND Page 680,Placitum A ,G and H   of (1995) Supp. 1 S.C.R 542] The effect of the impugned Judgment is to alter the fundamental faith of the Malankara Church which has been found and declared by this Honorable Court in [1995] Supp.1.S.C.R 542. It amounts to violation of Section 3 of the Places of Worship [Special Provisions] Act,1991;

15. The Judgment of this Honorable Court in [1995] Supp.1.S.C.R 542 is held to be that of Justice Jeevan Reddy and S.C.Sen in the Order passed in [1997] 1 S.C.R 936, while giving directions to frame the decree. The request by the Contesting respondents in Civil Appeal 4958-4960 of 1990 to frame the decree incorporating the findings, conclusions and declarations of the Judgment rendered by Justice R.M. Sahai was not accepted by Three Learned Judges of this Honorable Court in [1997] 1. S.C.R 936. Impugned judgment did not apply its mind to these aspects and has vitiated the impugned judgment;

16. The decision by the Division Bench of High Court of Kerala in Mathew Yohannan v Varghese [2013[4] KLT 945] relied upon in the impugned judgment is rendered in blatant violation of the Judgments and directions of this Honorable Court rendered in [1995] Supp [1] SCR 542, [1996] 3 SCR 85 and [1997] 1 SCR 936 and the Decree following the same. It being a judgment rendered per in-curiam and not a binding precedent. In fact the said Judgment in Mathew Yohannan v Varghese is pending consideration of this Honorable Court in Civil Appeal No 3674 of 2015 and connected Civil Appeals.

17. The impugned Judgment has impleaded the Additional 10^th respondent on the same day as its Judgment and decreed the Suit in his favour without giving any opportunity to the contesting parties to file written statement and evidence challenging his authority. No relief in favour of a third party can be granted in a Suit instituted under Section 92 of Civil Procedure, 1908. In impleading the 10^th respondent on the same day of pronouncement of the impugned judgment and granting reliefs in his favour,  the basic principles of Natural Justice are violated and the directions to the Additional 10^th respondent are void and liable to be set aside.

18. The net effect of the impugned Judgment will be to exclude all the faithful Parishioners except the plaintiffs from the Spiritual and Temporal affairs in the Church. It will also affect several other Parishioners of Parish Churches relating to which several Suits are pending in the Courts of Kerala at different stages of trial.

19. The Malankara Orthodox Church having filed Execution Petition No 1 of 2009 in O.S No 4 of 1979 in the High Court of Kerala to execute the decree of this Honorable Court framed by Order in [1997] 1 SCR 936,The Original Suit No 10 of 2003, is barred under Section 47 of the Civil Procedure,1908;

20. Impugned Judgment is the result of incorrect and erroneous understanding of the Judgment and Decree of this Honorable Court rendered in P.M.A Metropolitan vs   Moran Mar Marthoma Mathews & Anr [1995] Supp.1.SCR 542, [1996] 3 S.C.R 85 &1997 [1] SCR 936. Net effect of the impugned Judgment, which will be followed by the lower Judiciary of Kerala, is to indirectly declare that the Malankara Church is an Autocephalous Church,thus violating the Judgment of this Honorable Court.

Hence, SLP is filed

 

 

 

LIST OF DATES

 

52 AD onwards  Christianity gains a fairly substantial foothold in Kerala and the dominant faith was of the Syrian Orthodox Church.  In 325 A.D. in the First General Council of Christian Churches held at Nicea convened by the then Roman Emperor Constantine four Patriarchates were established viz. Rome, Constantinople, Alexandria and Antioch, each headed by a Patriarch.  Within the jurisdiction of the Patriarch of Antioch was established another office, viz.  The Great Metropolitan of the East also known as “ Catholicos”.  A Bishop from India participated in the said General Council.  [Page 647, Placitum A to H Of (1995)Supp.1.S.C.R 542]].

16^th Centuary:              Due to the influence of the Portugese political power the local Syrian Christians were compelled to accept the Roman Catholic faith.  Infact all their encient books of faith were burned by the Portugese at a place known as Udayamperoor.

1654 AD              The Syrian Christians rebelled against the imposition of the Roman Catholic faith and confirmed their loyality to the Syrian Orthodox Church headed by the Patriarch by taking an oath en masse at Mattancherry known as ‘Koonan Cross Oath’ [Page 673,Placitum E to H of [1995] Supp.1.SCR 542].

1808 AD              A trust for charitable purpose was created by the then Malankara Metropolitan Mar Thoma VI (Dionysius the Great) by investing in perpetuity 3000 Star Pagodas (equivalent to Rs. 10500), in British Bank Treasury on interest at 8% per annum.  During this period the Church Mission Society, a Missionary Society of Protestants with headquarters in London had come to Kerala and collaborated with the Syrian Church and had jointly acquired some properties.  Dispute arose between this Society and Syrian Christian Church with regard to these properties and also to the beneficial interest arising out of the charitable deposit of 3000 Star Pagodas which was referred to Arbitration.  [Page 647 Placitum G Read with Page 562,Placitum D,E,F,G Of (1995)Supp.1.S.C.R 542]].

].

1840 AD              The Arbitration was settled by an award called Cochin Award by which the properties thus acquired were divided between the Church Mission Society and the Syrian Christian Church.  The properties thus were divided between the two bodies allowing among other items 3000 Star Pagodas to the Syrian Christian Church.  The properties allotted to the Syrian Christian Church were as per the Award to be administered by three trustees, i.e. (1) The Malankara Metropolitan as the Metropolitan Trustee, (ii) a Priest Trustee and (iii) layman trustee to be selected by the Syrian Christian Community from among themselves . [Page 647,Placitum F & G of [1995] Supp.1.SCR 542]

Note: 1.

                             The properties thus allotted to the Syrian Christian Church is known as the common/Samudayam properties.  Individual Parish Churches of the Syrian Christian Community are not involved in the said properties.

Note: 2

                             It is an admitted fact that the Patriarch of Antioch was undoubtedly acknowledged and recognized by all the members of the Syrian Christian Church as the Supreme Spiritual Head of their Church.  The Syrian Christians believe in the efficacy of the Kaiveppu (laying of hands by the Patriarch on the head) while consecrating the Metropolitans and considered it essential to a proper ordaining.  All the parish churches of the Syrian Christian Community were established with the object of conducting religious services therein by those religious dignitaries who possess the Kaiveppu from the Patriarch of Antioch Seated on the Apostolic Throne of St. Peter at Antioch and this is an article of faith with the parishioners of the concerned parish churches.

1876 AD              The then Patriarch Peter III of the Antioch came to Kerala and he called a meeting of the accredited representatives of all the then existing parish churches which is known as the Mulanthuruthy Synod.  At this Synod the Malankara Syrian Christian Association Commonly called the Malankara Association was formed to prevent mismanagement of the church affairs and to check autocracy of the Metropolitans.  The Patriarch was the patron and the ruling Metropolitan under him is its President.  For transacting the business of the Association a Chief Committee known as the Managing Committee was formed.  [Page 648,Placitum A to H, Page 649,Placitum A, Page 687,Placitum C TO H of (1995) Supp.1 S.C.R 542]].

Note: 1

                             It is abundantly clear from the resolutions of the Mulanthuruthy Synod that the Syrian Christian Association was a voluntary association of the then existing parish churches and members of the Syrian Christian Church.

Note: 2

                             Until 1876 the entire Syrian Christian Church was comprised of one diocese only. But, thereafter, it was divided into Seven Dioceses, each headed by a Metropolitan.  One of them was designated as the Malankara Metropolitan.

4.7 1879:             Mar Joseph Dionysius claiming to be the properly ordained Metropolitan of the Syrian Christian Church instituted the Suit against Mar Thomas Athanasius.  The disputes centred round the spiritual supremacy of the Patriarch which was upheld by Joseph Mar Dionysius but rejected by Mar Thoma Athanasius.

1889 AD              The Seminary Suit decided in favour of Joseph Mar Dionysius upholding the spiritual supremacy of the Patriarch and holding that t extended to (i) ordination of Metropolitans (ii) sending of Morone to be used in the Parish Churches (iii) general supervision over the spiritual government of the Syrian Christian Church (iv) the Metropolitan of the Syrian Christian Church should be a native of Malabar consecrated by the Patriarch or by his duly authorized delegate and accepted by the people as their Metropolitan.[Page 648, Placitum D to H of [1995] Supp.1.SCR 542]

Note:

                             The necessity of the Metropolitan of the Syrian Christian Church being consecrated by the Patriarch or his delegates was to maintain the Kaiveppu from the Apostolic Throne of St. Peter at Antioch.

1912 AD              The Catholicate re-established in the Syrian Christian Church of Malankara and the powers of ordination of metropolitans and consecration of Morone delegated to the said  authority.  The power of general supervision over the spiritual government of the church continued to be remained with the Patriarch.

 

1913 to 4.7. 1928	Disputes as to persons entitled to the administration of the Common trust properties that came to be vested in the Syrian Christian Community by virtue of the Cochin Award of 1840.  This  resulted   in   vertical    split     among members of the        Community resulting in what is Commonly  referred to as the Catholicos Faction and the Patriarch Faction. Both claimed     right to draw interest on 3000       Star Pagodas deposited with   East Indian Company           forcing the then Secretary of  State  for   India    to    institute an interpleader Suit in the District Court, Trivandrum, which was later converted to a representative Suit between the two groups; This suit was ultimately disposed off on 4th of  July, 1928, holding that the           trustees put forward by the Catholicos Faction are legally valid entitled to draw the interest from deposit of 3000 Pagodas. It is very important to notice that the litigation for deciding the Valid trustees entitled to draw interest of 3000 Pagodas did not decide anything regarding affairs of the Parish Churches because it was not an issue thetrein.It wa;s at this point of time the First Petitioner Church was established exclusively by the Members of the JACOBITE CHURCH[The then Patriarch Faction] with no connection with the Catholicos Faction A True copy of the Cochin Award is annexed hereto and marked ANNEXURE P-1. (page     )
1928	St Mary’s Syrian Orthodox Church,Varikoli, put up  by the people of the locality for the religious worship as per Jacobite faith and tradition in the Apostolic  Succession of St. Peter through Patriarch of Antioch .The Church continued  as a Parish Church of  the Members of the Syrian Christian Community with object of foundation to have Religious Services Conducted Only through the Religious Dignitaries having Spiritual Grace [Kaiveppu-laying of hands on Head] through the Patriarch of Antioch or His authorized delegate.The Erstwhile Catholicos Faction never attempted to interfere with the affairs of the Church at any point of time;
1935-1958	-Disputes arose between two rival factions in           the Syrian Christian Community in                        Malankara  for administration of the Common Trust Properties of the Syrian Christian Community. Litigation between two rival claimants to the post of Malankara Metropolitan [Metropolitan Trustee, Priest Trustee, Priest Trustee,Lay Trustee put up by two groups on the basis of elections conducted at the Meetings convened and held by both the said groups-one by Erst while Catholicos Faction at M.D Seminary,Kottayam and the other by the Erstwhile Patriarch Faction at Karingachira =AIR 1959 SC 31,upheld the Validity of election of the trustees at MD Seminary by the Catholicos Faction   and  Meeting at Karingachira was   held to be bad.
9.03.1952	-Decision of the General Body of the 11TH Respondent Church reiterating that the Church will continue to function under  the Spiritual Headship of the Patriarch of Antioch. A True English translation of the said decision is annexed hereto and marked ANNEXURE P-2 (pages );This decision has not been challenged by anyone or altered by any subsequent General Body decisions of the Church.
1958	Attempts to bring about a Compromise between the two factions on the initiative of the Spiritual Head,the Patriarch of Antioch.It was initiated by the Patriarch of Antioch himself.[ 1995] SUPP 1.S.C.R 542 at page 660 ,Placitum E” TO “G”
16.9.1959	-A meeting of Malankara Association held wherein members of both the groups participated as an attempt to end disputes  The First Petitioner, Church also deputed its representatives to the said meeting on behalf of the Patriarch Group.
22.5.1964	-Patriarch of Antioch consecrated and Installed the new Catholicos  in Malankara and ushered in an Era of attempted Unification between the two Rival Factions of the Syrian Christian Community [Page 665 ,Placitum “H” OF [1995] SUPP .1.S.C.R 542];
28.12.1965	Meeting of the Malankara Association of the unified Malankara Church under the Spiritual Headship of the Patriarch of Antioch.First Petitioner Church happened to send representatives in the light of acceptance of Spiritual Headship of Patriarch of Antioch by both factions.
22/5/64 to 31/12/70	Unified Malankara Church under the                           Spiritual Headship of the Patriarch of                          Antioch. Parish Churches of erstwhile                          Patriarch Faction like First Petitioner                          Church happened to send elected                      representatives to Malankara Association.
31.12.70	Malankara Association meeting held on 31.12.1970 .Representatives of First Petitioner Church also participated in this meeting. The President of the Malankara Association took the stand that the Malankara Church is an independent Church separated from the Syrian Church under the Spiritual Headship of the Patriarch of Antioch.He also claimed separate Apostolic Throne for St Thomas at Devalokam ,Kottayam, Kerala, through the Catholicos. The entire Patriarch Faction representatives including the representatives of the First Petitioner Church protested and walked out of the said meeting because the said claim by the Catholicos is violation of faith and object of foundation of the Church.
1.1.1971 onwards	– Catholicos who was installed by the Patriarch of Antioch in 1964 and Bishops under him decided that the Malankara Church is Autocephalous                             Division of the Syrian Church and   have no connection with  Patriarch of Antioch,the Spiritual Head. Catholicos also claimed Apostolic Succession from the alleged Apostolic Throne of St Thomas at Devalokam,Kottayam Syrian Christian Community split vertically  ,members of Patriarch Faction dissociated from Malankara Association ;His Holiness ,Patriarch of Antioch consecrated a few metropolitans to protect the Spiritual needs of the Syrian Christian Community.   Plaintiffs did not produce the Minutes of this meeting but relied upon the Copy of the authorization given to representatives of First petitioner Church to go to the said meeting;
25.7.1971	Decisions by General Body of the First Petitioner Church decides not to accept 1934,Constitution after reading and analyzing Clauses1 to 44 therein.  A True English translation of the said decision is annexed hereto and marked ANNEXURE P-3(Pages  )
14.1.1973	Decisions by the General Body   deciding not to accept and read Kalpanas[Orders] coming from the then Catholicos saying that He  is seated on the Apostolic Throne of St Thomas.All contributions from  the first Petitioner Church to the said Catholicos was stopped. A True English translation of the said decision is annexed hereto and marked ANNEXURE P-4 (Pages
25.8.1974	-General Body decision categorically deciding to convey the decision taken on 14.01.1973 to the Catholicos by registered post; It was also decided not to send representatives from the  Church to the meeting of Malankara                            Association notified to be held at St;Mary’s Church, Niranam on 2.10.1974
30.3.1975	-General Body decision rejecting  authority of Ougen Catholicos and  others supporting him who claimed   faith in Apostolic Succession from  Apostolic Throne of St Thomas and   also that the Malankara Church is   autocephalous  Church with no  connection    with Patriarch of Antioch  It was also decided to communicate    said decisions by post to Basselios  Ougen I,Catholicos    A True English translation of the said decision is annexed hereto and marked ANNEXURE P-5
4.05.1975	-General Body meeting deciding  not to allow any religious dignitaries, vicars, priests accepting                              and standing with Mar Ougen                               Catholicos,claiming to be seated on                                the Apostolic Throne of St    Thomas  A True English translation of the said decision is annexed hereto and marked ANNEXURE P-6
8/01/1978	. -General Body decision reiterating                   acceptance and allegiance of Basselios                  Paulose-II ,Catholicos as Kandanad Diocesan metropolitan and Thomas Mar Osthathios metropolitan as Assistant   Kandanad Diocesan metropolitan under Spiritual Headship of Patriarch of  Antioch  A True English translation of the said decision is annexed hereto and marked ANNEXURE P-7    Note; -No attempt by Catholicos Faction to file Suit or interfere in the affairs of first Petitioner Church although more than 300 Suits were filed to capture management of several other Parish Churches; Administration and conduct of religious services in the Church continued independent of Malankara Orthodox Church and 1934,Constitution of Malankara Association. All connections with the Voluntary Association, Malankara Association,was cut off by the First Petitioner on 25.07.1971 and reiterated in14/1/1973,28.4.1974,25/8/74,30/3/75,4/5/75,8/1/1978 etc.
1978 Onwards	–   Conduct of religious services by  Vicars and priests acceptable to members of the Church and                               appointed by metropolitan of    Kandanad Diocese under the Apostolic Throne of St Peter at   Antioch,
1997-2000	Attempts by Catholicos faction through                         Moran Marthoma Mathews-II,    Catholicos, to force the first petitioner Church to send representatives to   Malankara Association not accepted
1999	Disputes started in the 1st Defendant church,which was the direct result of a Metropolitan[Bishop] of the Patriarch Faction shifting allegiance to the Catholicos Faction at a time when both factions were allowed to continue as such by this Honorable Court .4th defendant/4th respondent in the Appeal before the High Court of Kerala identified with the said metropolitan and created unfortunate faction among the Parishioners
10.02.02	I.A.No.4593/2002- Petition under Sec.92 of Civil Procedure Code,1908, by the plaintiffs (Respondents 1 to 9 herein) for leave to institute the suit.
2003	Plaint in Suit  is numbered as O.S.No.10/2003 after order in I.A. No. 4593/2002. Plaint prayed for Declaration that the first petitioner Church is governed by 1934,Constitution and that defendants 2 &3 have no right or authority to claim the status of trustees;consequential injunction against defendants 2 & 3 from functioning as trustees and mandatory injunction directing 4th defendant to call immediate pothuyogam [general body] of the plaint church to conduct election of managing committee and trustees in accordance with 1934,Constitution;It was subsequently amended to incorporate Reliefs[b] &[bb].  A True copy of the said Plaint is annexed hereto and marked ANNEXURE P-8. This was a collusive suit between the plaintiffs and 4th defendant to establish his authority as Vicar and to remove the trustees duly elected.
Oct. 2003	Written Statement by defendants   1 to 3  A True copy of the written Statement is annexed hereto and marked ANNEXURE P-9
28.3.2004	Minutes containing decisions arrived at meeting in the presence of the District Collector, Ernakulam regarding conduct of Holy services in church.  A True English translation of the said minutes is annexed hereto and marked ANNEXURE P-10
29.3.2004	Minutes containing decisions arrived  in the presence of the RDO, Movatunpuzha regarding conduct of Holy services in church. A True English translation of the said minutes is annexed hereto and marked ANNEXURE P-11
9.3.2007	I.A.No.3690/2007 – Application for amendment of the plaint filed by Plaintiff
8.8.2007	I.A.No. 3690/2007- Amendment of plaint Allowed by the 1st Addl. District Court, Ernakulam.
26.5.2008	Additional Written  Statement   by defendants 1 to 3 to the  amended plaint. A True copy of the amended Written Statement is annexed hereto and Marked as ANNEXURE 12
2008-2009	Suit proceeded with as a Suit to remove defendants 2&3
6.10.2008	-W.P[C] No 29572 of 2008 by the Priest trustee and Association Secretary of Malankara Orthodox Church,for issuance of a Writ of Mandamus or other appropriate Writ or Order ,direction compelling the respondents to ensure that Ignatius Zakka-I,does not indulge in religious activities in violation of the Foreigners Act,1946,and orders issued thereunder.Idea was to prevent the Spiritual Head from visiting the Church A True copy of the said Writ Petition is annexed hereto and Marked as ANNEXURE 13;
15.10.08	Judgment by High Court of Kerala in W.P[C] No 29572 of 2008 by Single Judge of High Court dismissing the Writ Petition. A True copy of the said judgment of the Kerala High Court is annexed and  Marked as ANNEXURE 14;
1.8.2009	I.A.No.5191/2009 – Application for impleading  petition filed by additional defendants 5 to 10-.
30.11.10	Additional defendants 6 to 10 filed Written Statement A True copy of the said Written Statement is annexed hereto and Marked as ANNEXURE P- 15
. 4.1.2011	5th defendant filed  statement. A True copy of the said Written Statement is annexed hereto and Marked as ANNEXURE P- 16   I
10.2.14	Judgment in O.S NO 10/ 2013. A True copy of the said of the said Judgment by the First Additional District   Court, Ernakulam, dismissing   the suit  is annexed hereto and Marked as ANNEXURE P- 17
4.3.2014	Regular First Appeal No 193   of 2014 before the High Court of Kerala by the   plaintiffs challenging   dismissal of O.S No   10/2003 .  A True copy of the said RFA is annexed hereto and Marked as ANNEXURE P- 18   IA No 623/14 by plaintiffs/Appellants to permit them to conduct religious and temporal affairs of the church during the turn allotted to them. A True copy of the said IA for interim orders is annexed hereto and Marked as ANNEXURE P- 19
14.03.14	Order by Single Judge of High Court of Kerala in IA No 623/14 in RFA 193/14,directing that the present arrangement made at the intervention of the district collector regarding conducting of religious services has to be continued. A True copy of the said Written Order of the High Court  is annexed hereto and Marked as ANNEXURE P- 20
10.06.14	Impleading petition I.A. 1286/2014 by 4th defendant in the Suit/4th respondent in RFA 193/14 For Injunction to restrain Appellants from obstructing him.. A True copy of the said I.A. is annexed hereto and Marked as ANNEXURE P- 21
17.06.14	Impleading petition I.A. 1431/2014 by Fr Viju Elias claiming to be new priest appointed in the place of 4th respondent. A True copy of the said I.A. is annexed hereto and Marked as ANNEXURE P- 22
19.06.14	Counter affidavit by Appellant/plaintiff to IA No 1286/2014,taking the stand that the 4th respondent in RFA No 193/2014  has been transferred with effect from 27.04.2014 and one Fr Viju Elias Thannikuzhy has been appointed as Vicar and Fr Joy Thomas,Muttathukkattil as Assistant Vicar. A True copy of the said counter affidavit is annexed hereto and Marked as ANNEXURE P- 23
13.02.15	–Counter Affidavit to IA No 1431 of 2014 by 4th  respondent in  the Appeal. A True copy of the said Counter Affidavit is annexed hereto and Marked as ANNEXURE P- 24.
21.08.15	Judgment by Single Judge of  High Court of Kerala dismissing   RFA No 193 of 2014     -IA No 1817  of 2015 by the  respondents 1 to 3 and 5 to 9 respondents requesting to keep the judgment in RFA No 193/2014 in abeyance or direct the parties to continue the interim arrangement of religious services for a period of 90 days  from the date of receipt of Judgment. A True copy of the said IA is annexed hereto and Marked as ANNEXURE P- 25.
21.08. 2015	Order in IA 1817/15 passed by the Single  Judge directing status quo for 45 days from date of receipt of   judgment . A True copy of the said Order  is annexed hereto and Marked as ANNEXURE P- 26 Order passed in I.A No 1431 of 2014 & I.A No 1286 of 2014 in RFA No 193 of 2014 impleading Fr Viju Ealias as Additional tenth respondent in the Appeal and dismissing IA 12867/14. A True copy of the said order  is annexed hereto and Marked as ANNEXURE P- 27   The impugned Judgment granted substantial reliefs in favour of the Additional tenth respondent after impleading him on the same day .No opportunity was given to the petitioners to challenge his authority by filing Written Statement thus violating basic principles of Natural Justice. Impugned judgment is the result of blatant violation of the Judgment and Decree of this Honorable Court in Most Rev.PMA Metropolitan V Moran Mar Marthoma-[1995] Supp 1.S.C.R 542.

IMPUGNED JUDGMENT

IN THE HIGH COURT OF KERALAAT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

FRIDAY, THE 21^ST  DAY OF AUGUST 2015/30TH SRAVANA, 1937

RFA. No. 193 of 2014 ()

(AGAINST THE JUDGMENT AND DECREE lN O.S. NO. 10/2003 OF 1^ST ADDL. DISTRICT COURT, ERNAKULAM DATED 10-02-2014)

APPELLANT( S)/PLAINTIFFS :

1. MATHAI VARGHESE, S/O.VARGHESE, AGED 65 YEARS, MUTHIRAKKALAYIL HOUSE, MATTAKUZHI,

          VARIKKOLI P.O., PIN-682 308.

2. T.M.PAULOSE,S/O.MATHAI, AGED 63 YEARS,

          THELAKKAT HOUSE, VARIKOLI P.O.,

          PUTHENCRUZ VILLAGE, PIN-682 308.

3. C.E.GEEVARGHESE,AGED 48 YEARS,

          S/O.ELIAS, CHENN EKKATTIL HOUSE,       MATTAKUZHI, VARIKOLI P.O., THIRUVANIYOOR      VILLAGE, PIN.682 308.

4. M.C.PAULSON, AGED 58 YEARS,

          S/O.CHACKO, MALAI HOUSE, MATTAKKUZHT,

          VARIKOLI P.O., THIRUVANIYOOR VILLAGE,

          PIN-682 308.

5. T.T.PAULOSE, AGED 48 YEARS, S/O.THOMAS,

          THONNAMATTATHIL HOUSE, MATTAKUZHI,

          VARIKOLI P.O., THIRUVANIYOOR VILLAGE,

          PIN-682 308.

6. T.V.THOMAS, AGED 54 YEARS,

          Slo.VARKEY THEKKTNETH HOUSE, MATTAKUZHI,

          VARIKOLI P.O., THIRUVANIYOOR VILLAGE,

          PIN-682 308.

7. M.K.PAULOSE,AGED 55 YEARS,

          S/O.KURIAKOSE, MIJNDAKKAL HOUSE,    MATTAKUZHI, VARIKOLI P.O., THIRUVANIYOOR      VILLAGE, PIN.682 308.

8. BABY JOSEPH, AGED 55 YEARS,

          S/O.JOSEPH, PALAKKATTIL HOUSE, MATTAKUZHI,

          VARIKOLI PO., THIRUVANIYOOR VILLAGE,

          PIN 682 308.

9. C. C. PHlLIP AGED 55 YEARS,

          S/O.CHERIAN, CHAKKYATTIL HOUSE, VARIKOLI        P.O.,           PUTHENCRUZ VILLAGE, PIN-682 308.

BY ADVS. SRI.P.MARTIN JOSE

                   SRI.ELDHO CHERIAN

                   SRI.P.PRIJITH

                   SRI.THOMAS P.KURUVILLA

RFA  193/2014

 

RESPONDENT(S)/DEFENDANTS :

1. ST.MARY’S ORTHODOX CHURCH,

          VARIKOLI, VARIKOLI P.O., PIN-682 308,

          PUTHENCRUZ, REP. BY ITS TRUSTEE.

2. BINOY VARGHESE, AGED 31 YEARS,

          S/O.VARGHESE, IKKARAYIL HOUSE,

          MATTAKUZHI, VARIKOLI P.O., PIN-682 308.

3. C.A.VARGHESE, AGED 60 YEARS, S/O.ABRAHAM,

          CHEMMOTH HOUSE, CHEMMANADU B.K.PURAM      P.O.,           PIN-682 308.

4. REV. FR. MATHAI VADAKKINETH,

          VADAKKINETH HOUSE, EHAKKAMNADU SOUTH       P.O.,           MANEED VILLAGE, PIN-682 308.

5. V.E. THOMAS, S/O.ITTOOB AGED 64 YEARS,

          VELLOOR HOUSE, MATTAKKUZHI VARIKKOLI P.O.,

          PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK,

          ERNAKULAM DISTRICT, PIN-682 308.

6. P.A.GEORGE, S/O.ALEXANDER, AGED 61 YEARS,

          PADIYIL HOUSE, MATTAKKUZH, VARIKKOLI P.O.

          KUNNATHUNADU TALUK, ERNAKULAM DIST,

          PIN-682 308.

7. K.I.YACOB,S/O.ISAHAC,AGED 59 YEARS,

          KIZHIPILLIL HOUSE, MATTAKKUZHI,

          VARIKKOLI P.O., KUNNATHUNADU TALUK,

          ERNAKULAM DIST, PIN-682 308.

8. V.V.MATHAI, S/O,VARKEY, AGED 54 YEARS,

          VELLOOPUTHENPURAYIL HOUSE, CHOONDY,

          VADYAM BADY P.O.,AIKKARANAD SOUTH         VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM         DIST. PIN-682 308.

9. AJOSH GEORGE,S/O.GEORGE, AGED 32 YEARS,

          PADIYIL HOUSE, MATTAKKUZHI,VARIKOLI P.O.

          PUTHENCRUZ VILLAGE, KUNNATHNADU TALUK,

          ERNAKULAM DIST, PIN-682 308.

RFA.NO.193/2014

          ADDL.R/O IMPLEADED

ADDL.R/O:

1. VIJU EALIAS, AGED 32 YEARS,

          S/O . T.V.EALIAS,

          THANNI KUZHIYIL, VETTI KAL,

          MULANTHURUTHY VILLAGE, KANNAYUR  TALUK.

ADDL.R/O IS IMPLEADED AS PER ORDER DATED 21.07. 2015 IN  I.A.NO. 1431/2014          .

          RI TO R3,R5 TO R9 BY ADV.  SRI,K.J.KURIACHAN

          R4     BY ADVS.           SRI.P.VIJAYAKUMAR

                                                SRI.C.R.REGHUNATHAN

                                                SRI.M.V.ASHIM

                                                SRI.R.BALAKRISHNAN

                                                SRI.B.HARRYLAL

                                                SRI.SUVIN.R.MENON

ADDL.R/O  BY ADV.             SRI.K.PAUL KURIAKOSE

THIS REGULAR FIRSTAPPEAL HAVING BEEN FINALLY HEARD ON 21-07-2015, THE COURT ON 21-08-2015 DELIVERED THE FOLLOWING:

P.B.SURESH KUMAR, J.

R.F.A.No.193 of 2O14.

Dated this

======–

The 21^st  day of August, 2015.

JUDGMENT

The plaintiffs in a suit instituted under section 92 of the Code of Civil Procedure are the appellants.

2. The dispute in the suit pertains to the management of the first defendant church namely, St. Mary’s Orthodox Church, Varikoli. The first defendant church is a parish church coming, under the Kandanadu East Diocese of Malankara Orthodox Syrian Church, hereinafter referred to as ‘the Malankara Church’, for short. The suit was filed by a few parishioners of the first defendant church, alleging that the first defendant church is to be administered in accordance with the Constitution of The Malankara Church framed by the Malankara Association in the year 1934.  That defendants 1 and 2 who are elected as the trustees of the first defendant church are continuing in office beyond the period of one year prescribed in the 1934 constitution of the Malankara church and that the fourth defendant  who is the Vicar of the first defendant church is not taking steps to convene a parish assembly to elect new office bearers of the church.  It was also alleged by the plaintiffs that the accounts of the first defendant church have not been audited and placed before the parish assembly since 1999. The plaintiffs, therefore, claimed a decree declaring that the first defendant church is liable to be administered in accordance with the 1934 constitution of the Malankara church, a decree of prohibitory injunction restraining defendants 2 and 3 from functioning as the trustees of the 1st defendant church and a decree directing the fourth defendant to convene the parish assembly of the first defendant church and elect its office bearers in accordance with the 1934 constitution of the Malankara church.

3. Defendants 1 & 3 contested the suit by filing a written staternent. The contentions raised by the said defendants were mainly that the first defendant church was established in the year 1928 by the people in the locality for religious worship as per the Jacobite faith and tradition; that the first defendant church has not adopted the 1934 constitution of the Malankara Church; that the first defendant church and its parishioners are loyal to the Patriarch of Antioch and that they accept only the hierarchy of priests ordained by or loyal to the patriarch of Antioch, They also contended that the parish assembly of the first defendant church had adopted the constitution of Jacobite Syrian Christian Association on 30.6.2002  and that since the fourth defendant had deviated from the fundamental faith of the church, he was removed from the Vicar ship of the first defendant church. Defendants 5 to 10 who got themselves impleaded as additional  defendants also filed written statements raising contentions similar to the contentions raised by defendants 1 to 3.

4. In the course of the trial, the plaint was amended and a prayer for a declaration that only the fourth defendant or any other priest appointed in accordance with the 1934 constitution alone is entitled to conduct religious services in the first defendant church was also incorporated.

5. The evidence in the case consists of the oral testimonies of PWs.1 and 2 and Exts. Al to A24 on the side of the plaintiffs and the oral testimonies of DWs. l to 3 and Exts. B1 to B29 on the side of ,the defendants. The documents called for at the instance of the plaintiffs were marked in the proceedings as Exts. Xl to X11.

6. The trial court, relying on the decision of the Apex court in P.M.A. Metropolitan v. Moran Mar Marthoma (AlR 1995 SC 2002) found that the first defendant church is to be administered in accordance with the 1934 constitution of the Malankara church and that only vicars and priests appointed under the 1934 constitution can conduct religious  ceremonies/services in the first defendant church.  Despite the said findings, the suit was dismissed by the trial court holding that there are two factions within the parishioners of the first defendant church; that the plaintiffs do not recognise the Patriarch of Antioch, the supreme religious head of the Malankara Church on whom many of the parishioners repose faith and that therefore they are not entitled to the discretionary reliefs claimed in the suit. The plaintiffs are aggrieved by the said decision of the trial court and hence this appeal.

7. Heard the learned Senior Counsel Sri. S. Sreekumar for the appellants, Advocate K.J. Kuriachan for respondents 1 to 3 and 5 to 9 and Advocate P.Vijayakumar for the 4th respondent. The learned counsel for the appellants contended that in so far as it was found by the court that the first defendant church is liable to be administered in accordance with the 1934 constitution of the Malankara church and that the first defendant church is not being administered in accordance with the said constitution, the trial court ought to have decreed the suit, granting to the plaintiffs the reliefs claimed by them. The learned counsel for the appellants also contended that the acceptance and recognition of the patriarch of Antioch cannot be treated as part of the faith of the parishioners of the first defendant Malankara Church. The learned counsel for the appellants, however, pointed out that the patriarch of Antioch is recognized as the supreme spiritual head of the Malankara Church even as per the 1934 constitution of the Malankara church. According to him, the 1934 constitution provides that the patriarch shall be a person canonically consecrated with the cooperation of the catholicos and the Plaintiffs are not recognizing the present incumbent In the office of the Patriarch of Antioch as he is not a person, consecrated with the cooperation of the catholicos. As such according to the learned counsel, it cannot be contended that the  constitution of the church do not recognize the patriarch of Antioch as the supreme dignitary of the church. The learned counsel for the petitioners further contended that the finding of the court below that the first defendant church is not being administered in accordance with the 1934 constitution is incorrect and unsustainable. According to the learned counsel, Exts.Xl to X4 documents would show that the church was being administered all along in accordance with the 1934 constitution.

9. The learned counsel for respondents 1 to 3 and 5 to 9, supported the impugned judgment raising various contentions. According to the learned counsel, in the light of the conclusion arrived at by the Apex Court in paragraph 142 (4) of the Judgment in P.M.A. Metropolitan’s case (supra) that the patriarch of Antioch is spiritually superior to the catholicose, the administration of a parish church by persons who do not recognize and accept the patriarch of Antioch as the supreme spiritual head would go against the spirit of the said judgment. He also contended, relying on paragraph 141 of the judgment of the Apex court in P.M.A. Metropolitan’s case (supra), that the Apex court has not held in the said case that the parish churches are to be governed by the 1934 constitution of the church and that independent decisions in respect of parish churches would not go against the said decision of the Apex court. The learned counsel further contended that the first defendant church is a church established to uphold the faith that the Patriarch of Antioch is the supreme spiritual head of the church. According to him, the court cannot grant any relief to the plaintiffs which would affect the faith of the church. He relied on paragraph 150 of the decision of the Apex court in P.M.A. Metropolitan’s case (supra) in support of the said contention. The essence of the contentions of the learned counsel for the contesting respondents is therefore, that the parish churches under the Malankara church should be held to be independent.
10. I have scrutinised meticulously the submissions made at the Bar. As noticed above, the court below found that the first defendant church is governed by 1934 constitution of the Malankara church and that the church is not being administered in accordance with the said constitution. Despite the said findings, the court below non suited the plaintiffs solely on the ground that they do not recognize the present incumbent in the office of the Patriarch of Antioch. The question to be considered therefore, is whether the court below was justified in non suiting the plaintiffs for the said reason. It is beyond dispute that the first defendant is a constituent parish church of the Malankara church, It was found by the Apex Court in P.M.A. Metropolitan’s case (supra) that the parish churches under the Malankara church are also to be administered in accordance with the 1934 constitution of  the  Malankara church. The relevant extract of the said finding contained in paragraph 141 of the judgment in the said case  reads thus:

“In the state of such a pleading, the only, observation that can be made herein is that the 1934 constitution shall govern and regulate the affairs of the parish churches too, in so far as the said constitution provides for the same.”

A reading of the said passage do not indicate that the Apex court has made any reservation concerning the parish churches consisting of parishioners owing allegiance to the Patriarch of Antioch. The factional dispute in the church between those who owe allegiance to the patriarch and those owe allegiance to the Catholicos resulted in the litigation resolved by the Apex court also. As such, when it is held that the first defendant church is to be administered in accordance with the 1934 constitution and when it is found that the first defendant church is not being administered in accordance with the said constitution, I am of the view that the court below should have decreed the suit as prayed for.

11. Now I shall deal with the contentions advanced by the learned counsel for the contesting defendants in support of the impugned judgment. The main argument of the contesting respondents is that in the light of the conclusion recorded by the Apex Court in paragraph 142(4) of the judgment in P.M.A. Metropolitan’s case (supra) that the Patriarch of Antioch is spiritually superior to the catholicos, the administration of the parish church by persons who do not recognise and accept the Patriarch of Antioch as their superior spiritual head would go against the decision of the Apex court in the said case. Paragraph 142(4) of the judgment reads thus:

“142(4) lt may be that by virtue of the revival of Catholicate and by issuing the Kalpana Ex.A. 14 – and also by accepting the Constitution as to be mentioned presently). – the power of the patriarch may have been, reduced to a vanishing point, but all the same he remains the supreme head of the Syrian Church of which the Malankara Church is a division. He is spiritually superior to the Cathcilicos though he does not, and indeed never did, enjoy any temporal powers over the Malankara Church or its properties”

Article 101 of the 1934 constitution, of the Malankara church provides that the Malankars Church shall recognize  the Patriarch, conically  consecrated with the co-operation  of the catholicos. The 1934 constitution was framed by the Malankara Association, constituted  by the then patriarch himself. In P.M.A. Metropolitan’s case (supra), the Apex Court examined the various Articles in the 1934 constitution of the Malankara church and order the amendment to some of the Articles thereof  to resolve the factional dispute in the Malankara church. Paragraph 103 of the said judgment indicates that the Apex court had taken note of the provision contained in Article 101 of the constitution, which prior to the amendment pursuant to the directions issued in the said case was Article 92.  A close reading of the judgment of the Apex court indicates that the Apex Court had approved the said Article of the constitution, which is evident from paragraph 135(b) of the judgment dealing with the manner in which the Patriarch has to exercise his powers after the 1934 constitution. The relevant portion of the said paragraph reads thus:

“It may be that by the act of revival of Catholicate and the Kalpana A. 13 ard 14, the patriarch is not denuded of the powers Delegated by him to the Catholicose – assuming that these powers were not already possessed by the Catholicos and that they came  to be conferred upon him only under A.13 and A.14 – yet, reasonably speaking, the Patriarch was, and is, expected to exercise those powers thereafter  in consultation with the Catholicos and the Malankara Sabha (Association) – and, of course in accordance with the 1934 Constitution. This was necessary for the reason (i) toi avoid creating parallel authorities leading to conflict and confusion and (ii) the acceptance by the local people was a sine –qua non for any metropolitan  or malpattakar in Malankara Church as provided in the Mulanthuruthy Synod(convened and presided over by the then Patriarch himself) and given a judicial sanction by the Judgment of the Travancore Royal Court of Appeal aforementioned”.

The fact that the Apex court had approved Article 101 of the 1934 constitution is further evident from the conclusion arrived at by the Apex court as contained in paragraph 142 (3) of the said judgment, which reads thus:

142(3) It may be that by conferring upon the Catholicos the powers of ordaining Metropolitans, consecrating Morone and to exercise other spiritual powers over Malankara Church, the Patriarch may not have denuded himself completely of the said powers which he enjoyed until then. But in view of the fact that he had himself created another center of power in India with the aforesaid powers, it would be reasonable to hold that thereafter the Patriarch cannot exercise those powers unilaterally, i.e., without reference to the Catholicos. He can exercise those powers only in consultation with the Catholicos. Moreover, the person to be appointed as Metropolitan or Malankara Metropolitan has to be accepted by the people as has been affirmed in the judgment in Seminary suit. The Patriarch’s power to ordain the Metropolitans now is subject to the Constitution of 1934.”

In the light of the findings recorded by the Apex Court in the said case as referred to above, it cannot be contended that the conclusion arrived at by the Apex Court in paragraph 142(4) of the judgment is unmindful of the fact that the Malankara Church would recognise only the Patriarch canonically consecrated with the co-operation of the catholicos. As such, I have no hesitation to hold that the Patriarch of Antioch referred to in paragraph 142(4) of the judgment of the Apex Court is a Patriarch holding office in accordance with Article 101 of the 1934 constitution of the Malankara Church.

12. Now, I shall deal with the contentions raised by the learned counsel for the contesting respondents as regards the faith of the church. As noticed above, the contention is that the supremacy of the Patriarch of Antioch is one of the articles of faith of the church and that in so far as the parishioners who owe allegiance to the orthodox faction do not recognise the Patriarch of Antioch as the superior spiritual head, grant of reliefs to them would alter the faith of the church. Article 1 of the 1934 constitution of the Malankara Church categorically proclaims that the Malankara Church is a division of the orthodox syrian church and the primate of the orthodox syrian church is the Patriarch of Antioch. In the light of the said provision in the 1934 constitution of the church, it cannot be contended that there is any deviation in the articles of faith of the church. The fact that there are two factions among the parishioners of the first defendant church as found by the trial court and that the plaintiffs are persons who owe allegiance to the orthodox faction are not in dispute. Merely for the reason that the contesting respondents recognises the Patriarch of Antioch holding office otherwise than in accordance with the 1934 constitution, it cannot be contended that if reliefs are granted to the plaintiffs as claimed by them, the same would result in altering the articles of faith of the church.

13. As regards the contention advanced by the learned counsel for the contesting respondents, relying on paragraph 141 of the judgment of the Apex Court in P.M.A. Metropolitan’s case (supra), that the Apex Court has not held that the parish churches are to be governed by the 1934 constitution, it is seen that identical contention has been dealt with by a Division Bench of this Court in Mathew Yohannan v. Varghese (2013(4) KLT 945) in the context of the disputes relating to the administration of another parish church under the Malankara Church namely, St.Peter’s and St.Paul’s Syrian Orthodox Church, Kolencherry. The relevant portion of paragraph 141 of the judgment of the Apex Court in P.M.A. Metropolitan’s case (supra) read thus:

“We are, however, of the opinion that in this suit no declaration can be granted affecting the rights of Parish Churches in their absence nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan or the Metropolitan of the concerned diocese, as the case may be. Indeed, no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by the plaintiffs that their Church is episcopal in nature, if that declaration means that it gives the Catholicos/Malankara Metropolitan/the Metropolitan of the Diocese any title to or any control over the properties held by the Parish Churches. We have pointed out herein before that the only place in the plaint where a reference is made to the properties of the Parish Churches is in Para 24 where all that it is alleged is that the defendants and their partisans are trying to intermeddle in the affairs of individual Churches and are attempting to make use of the properties of the Church to further their illegal and unlawful objects. No list of Parish properties is enclosed nor are the particulars of the alleged intermeddling mentioned in the plaint, in the state of such a pleading, the only observation that can be made herein is that the 1934 Constitution shall govern -and regulate the affairs of the Parish Churches too, insofar as the said Constitution provides for the same”

After referring to the judgment of the Apex Court in P.M.A Metropolitan’s case (supra), the Division Bench held that the Parish Churches are constituent units of the Malankara Church and that the 1934 Constitution is valid and binding on the Parish Churches and the Parishioners. It was also held by this Court in the said case that the clarification made by the Apex Court in paragraph 141 relied on by the learned counsel that no declaration can be granted affecting the rights of the Parish Churches in their absence is in the context of considering the question whether properties held by the Parish Churches  would vest in the Malankara Metropolitan/the Metropolitan of the concerned diocese, as the case may be, and not in the context of the status of the Parish Churches. The relevant passages dealing with the said aspects read thus:

“The above conclusions will show that Parish Churches are constituent units of the Malankara Church; they have fair degree of autonomy subject to the supervisory powers vesting the Managing Committee of the Malankara Association and the 1934 Constitution is valid and binding on the Malankara Association, Community, Dioceses as well as Parish Churches and Parishioners.

XXX XXX XXX

XXX XXX XXX

The clarification made by the Apex Court in para 141 that no declaration can be granted affecting the rights of Parish Churches, in their absence, is in the context of consideration of a question whether the properties held by the Malankara Parish Churches vest in the Catholicos/the Malankara Metropolitan/the Metropolitan of the concerned diocese, as the case may be. Therefore, the same is in the context of vesting of title of the properties of Parish Churches and not the status. Finally, in the said paragraph, their Lordships held that “the only observation that can be made herein is that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches too, insofar as the said Constitution provides for the same. In that view of the matter, according to us, the argument of the learned Senior Counsel for the appellants that the decision of the Apex Court in P.M.A. Metropolitan’s case (supra) has been wrongly relied upon by the Trial Court, is not correct.”

As in the instant case, the said case was also a case where no relief was sought in respect of the properties of the Parish Church.

Instead, the parties were at issue only on the question as to the administration of the Parish Churches and the application of the 1934 Constitution of the Church. Paragraph 89 of the said judgment reads thus:

“In this case also, in the plaint no relief is sought that the properties of the Church vest in the Parishioners of other bodies. Both sides were at issue on the question of system of administration of Parish, election and on the question whether it is Ext.A1 Udambady or ExL131 Constitution that governs the Church. Therefore, it is not a case where the plaintiffs have sought for a relief of declaration specifically with regard to the properties of the Church or about the vesting of the properties of the Church in a particular body. What is dear from the reliefs sought for, is that they are only seeking for enforcement of Ext.A1 Udambady as regards the administration of the Church or in the -alternative, to frame a scheme for the administration. In that view of the matter, according to us, there is no error committed by the trial court, by relying upon 1934 Constitution and the finding relying upon the decision of the Apex Court in P.M.A. Metropolitan’s case (supra).”

In the light of the said decision of the Division Bench, the contention of the appellants that the decision of the Apex Court in P.M.A. Metropolitans case (supra) has no application to the Parish Churches under the Malankara Church is only to be rejected.

14. As noticed above, the essence of the contentions of the learned counsel for the contesting respondents is that in so far as the parishioners of the first defendant church are persons who owe allegiance to the Patriarch faction and since the plaintiffs are not recognising and accepting the present incumbent in the office of the Patriarch of Antioch, the parishioners should be permitted to administer the affairs of the first defendant church in accordance with their faith. First of all, there is nothing on record as to the strength of the parishioners who owe allegiance to the Patriarch faction like the contesting respondents. Even otherwise, in so far as the first defendant church is a parish church of the Malankara orthodox Syrian church, the Apex Court held that the Parishioners have no right to disassociate from the Malankara Church. The relevant extract of the judgment in P.M.A. Metropolitan’s case (supra) reads thus:

“Therefore, once these public charities were found whether before the establishment of catholicate or after it their nature could not change. On the material on record the courts have found them to be so. Therefore, the submission that they are autonomous does not appear to be well founded. Autonomy for what, religious worship or temporal matters. Former cannot be pleaded as once a Church was found for religious worship it continued to be so. The autonomy in temporal matters as claimed appears to be two-fold one, freedom to disassociate from Malankara Association and second to control and supervise its internal affairs. The first cannot arise. In law it is not open to members of public or public trust to appropriate trust property for themselves. Under Hill on the Law of Trusts and Trustees has explained it thus, ‘However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being’. None of the Parish Churches claim autonomy in the sense that they have changed their faith and belief. Each of them claims that their spiritual head is Patriarch of Antioch. That is they are the believers and followers of Syrian Church. So are the members of Malankara Association and Catholicate of East. Therefore, the existence or exercise of autonomy for Parishes has no meaning. Similarly the independence -or autonomy in temporal matters is not of any consequence. The Parishes are bound by the Constitution framed in 1934”

In the light of the aforesaid findings of the Apex Court, the contention that the parish churches should be held to be independent is only to be rejected.

In the result, the appeal is allowed, the impugned judgment is set aside and the suit O.S.No.10 of 2003 on the file of the District Court, Ernakulam is decreed declaring that the first defendant church is governed by the 1934 constitution of the Malankara Church and that only Vicars and Priests appointed in accordance with the 1934 Constitution of the Malankara Church are competent to conduct religious services in the first defendant church. A decree of permanent prohibitory injunction is also granted in favour of the plaintiffs, restraining the defendants and their men and supporters from causing- obstructions to the conduct of religious services in the first defendant church by Vicars and Priests appointed In accordance with the 1934 constitution of the Malankara Church. The plaintiffs are also given a decree of mandatory injunction directing the 10th respondent who is impleaded in the appeal as the present Vicar of the church, to convene a parish assembly of the first defendant church and elect a managing committee including trustees and Secretary for the first defendant church in accordance with 1934 constitution of the Malankara Church. It is made clear that respondents 2 and 3 can continue as trustees of the first defendant church till new trustees are elected in their place, if they are continuing even now as trustees of the first defendant church. All the interlocutory applications in this case are closed.

Sd/-

P .B.SURESH KUMAR,

(JUDGE)

Kvs/-

// true copy //

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION

(Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (CIVIL) NO.       OF 2015

With

PRAYER FOR INTERIM RELIEFS

                                                                   Position of Parties

                                                          Before the                   In This

In The Matter Of:                           High Court         Court

1. V.E. Thomas,

          S/O.Ittoop

          Aged 64 Years,

          Velloor House,

          Mattakkuzhi Varikkoli P.O.,

          Puthencruz Village,

          Kunnathunadu Taluk,

          Ernakulam District, Pin-682 308.

          Kerala.                 5^th Respondents          ……Petitioner

2. P.A.George,

          S/O.Alexander,

          Aged 61 Years,

          Padiyil House, Mattakkuzh,

          Varikkoli P.O.

          Kunnathunadu Taluk,

          Ernakulam Dist, Pin-682 308.

          Kerala                  6^th Respondents          ……Petitioner

3. K.I.Yacob,

          S/O.Isahac,Aged 59 Years,

          Kizhipillil House, Mattakkuzhi,

          Varikkoli P.O.,

          Kunnathunadu Taluk,

          Ernakulam Dist, Pin-682 308.

          Kerala.                 7^th Respondents          ……Petitioner

4. V.V.Mathai,

          S/O,Varkey, Aged 54 Years,

          Vellooputhenpurayil House,

          Choondy,  Vadyam Bady P.O.,

          Aikkaranad South        Village,

          Kunnathunadu Taluk,

          Ernakulam          Dist. Pin-682 308.

          Kerala.                 8^th Respondents          ……Petitioner

5. Ajosh George,

          S/O.George, Aged 32 Years,

          Padiyil House, Mattakkuzhi,

          Varikoli P.O.

          Puthencruz Village,

          Kunnathnadu Taluk,

          Ernakulam Dist, Pin-682 308.

          Kerala.                 9^th Respondents          ……Petitioner

VERSUS

1. Mathai Varghese, S/O.Varghese,

          Aged 65 Years, Muthirakkalayil House,

          Mattakuzhi,

          Varikkoli P.O., Pin-682 308.

          Ernakulam.                                                         Contesting

          Kerala.              1^st Appellant                    Respondent

2. T.M.Paulose,S/O.Mathai, Aged 63 Years,

          Thelakkat House, Varikoli P.O.,

          Puthencruz Village, Pin-682 308.

          Ernakulam,                                                         Contesting

          Kerala.                 2^nd  Appellant               Respondent

3. C.E.Geevarghese,Aged 48 Years,

          S/O.Elias, Chenn Ekkattil House,

          Mattakuzhi, Varikoli P.O.,

          Thiruvaniyoor Village, Pin.682 308.

          Ernakulam,                                                         Contesting

          Kerala .                3^rd  Appellant                Respondent

4. M.C.Paulson, Aged 58 Years,

          S/O.Chacko, Malai House, Mattakkuzht,

          Varikoli P.O., Thiruvaniyoor Village,

          Pin-682 308.

          Ernakulam,                                                         Contesting

          Kerala.                 4^th Appellant                 Respondent

5. T.T.Paulose, Aged 48 Years, S/O.Thomas,

          Thonnamattathil House, Mattakuzhi,

          Varikoli P.O., Thiruvaniyoor Village,

          Pin-682 308.

          Ernakulam,                                                         Contesting

          Kerala.                 5^th  Appellant                Respondent

6. T.V.Thomas, Aged 54 Years,

          Slo.Varkey Thekktneth House, Mattakuzhi,

          Varikoli P.O., Thiruvaniyoor Village,

          Pin-682 308.

          Ernakulam,                                                         Contesting

          Kerala.                  6^th Appellant                Respondent

7. M.K.Paulose,Aged 55 Years,

          S/O.Kuriakose, Mijndakkal House,

          Mattakuzhi, Varikoli P.O.,

          Thiruvaniyoor Village, Pin.682 308.

          Ernakulam,                                                         Contesting

          Kerala.                  7^th Appellant                Respondent

8. Baby Joseph, Aged 55 Years,

          S/O.Joseph, Palakkattil House,

          Mattakuzhi, Varikoli Po.,

          Thiruvaniyoor Village,           Pin 682 308.

          Ernakulam,                                                         Contesting

          Kerala.                 8^th  Appellant                Respondent

9. C. C. Phllip Aged 55 Years,

          S/O.Cherian, Chakkyattil House,

          Varikoli P.O., Puthencruz Village, Pin-682 308.

          Ernakulam,                                                Contesting

          Kerala.                 9^th  Appellant                Respondent

10. Fr. Viju Ealias, Aged 32 Years,

          S/O . T.V.Ealias,

          Thanni Kuzhiyil, Vetti Kal,

          Mulanthuruthy Village, Kannayur  Taluk.,

          Ernakulam,                                                         Contesting

          Kerala .        10^th Addl. Respondent        Respondent

11. St.Mary’s Orthodox Church,

          Rep. By Its Trustee, Puthencruz,.

          Varikoli, Varikoli P.O., Pin-682 308,

          Ernakulam,                                                         Performa

          Kerala.                 1^st Respondent            Respondent

12. Binoy Varghese, Aged 31 Years,

          S/O.Varghese, Ikkarayil House,

          Mattakuzhi, Varikoli P.O., Pin-682 308.,

          Ernakulam,                                                         Performa

          Kerala.                  2^nd Respondent          Respondent

13. C.A.Varghese, Aged 60 Years,

          S/O.Abraham, Chemmoth House,

          Chemmanadu B.K.Puram P.O., Pin-682 308.,

          Ernakulam,                                                         Performa

          Kerala .                3^rd Respondent            Respondent

14. Rev. Fr. Mathai Vadakkineth,

          Vadakkineth House,

          Ehakkamnadu South P.O.,

          Maneed Village, Pin-682 308.,

          Ernakulam,                                                         Performa

          Kerala.                 4^th Respondent            Respondent

To

The Hon’ble the Chief Justice of India

And His Companion Justices of the

Hon’ble Supreme Court of India

            This Special Leave Petition of the Petitioner Most Respectfully Showeth:

          This is a petition for Special Leave to Appeal from the final Judgment and Order of the High Court of Kerala , dated 21-08-2015,  in Regular First Appeal   No. 193 of 2014 whereby the Learned Single judge of the Hon’ble High Court has allowed the same and decreed the Suit, O.S No 10/2003  of the First Additional District Court,Ernakulam. The said Suit was dismissed by judgment and decree dated 10.02.2014 by the First Additional District Court,Ernakulam,

2. QUESTION OF LAW:

The following questions of law arise before this Hon’ble Court:

1. Whether the impugned Judgment has wrongly interpreted the Judgment of this Honorable Court in P.M.A Metropolitan vs   Moran Mar Marthoma –[1995] Supp.1 SCR 542=AIR 1995 SC 2001, in holding that the declaration at paragraph 142 [4] OF AIR 1995 SC 2001=Page 684, Placitum H and page 685,Placitum A&B of–[1995] Supp.1 SCR 542,  that the Patriarch is the  Spiritual Head of the  Malankara Church ,is subject to recognition by the Malankara Church and that the Patriarch of Antioch,the Spiritual Head is a Patriarch holding office in accordance with Article 101 of the 1934,Constitution of the Malankara Church?

1934. Whether the impugned Judgment has failed to consider and appreciate that the .legal effect following from Page No 648,Placitum F to H, Page 673,Placitum F to H and Page 674,Placitum B to D of [1995] SUPP.1 SCR ,542,is that the Patriarch of Antioch, the Spiritual  Head, continue to have the inherent power of General Supervision over the Spiritual Government of the Malankara Church in spite of the revival of the Catholicate in Malankara. This is a power that is beyond the 1934,Constitution framed by a Voluntary Association not in 1876 but in 1934. It is a power inherent in the Patriarch of Antioch,the Spiritual Head, which is vested in Him for the sole reason that He is the present direct successor of St Peter, the Chief Disciple of Jesus Christ.Impugned Judgment has violated the Specific Declaration that the Patriarch of Antioch is the Spiritual Head of the Syrian Church of which Malankara Church is a Division and also that He is Spiritually Superior to the Catholicos of the Malankara Church by not noticing and appreciating the effect of the above paragraphs of this Honorable Court’s Judgment;

1. Whether the impugned Judgment has not noticed that this Honorable Court has declared at Page 687,Placitum F to G that the Travancore Royal Court Judgment of 1889 to be the basic Constitution of the Malankara Church.Finding in the impugned Judgment that the Patriarch referred to in Paragraph 142[4] of AIR 1995 SC 2001[ Page 684,Placitum H AND Page 685 ,Placitum A of [1995] SUPP.1.S.C.R 542],is the Patriarch “Canonically recognized in accordance with Article 101 of the 1934,Constitution” is a gross misconception in the impugned Judgment by the Court resulting from misleading submissions by the Counsel of the parties. The Court did not notice the effect of declaration by the Apex Court that Travancore Royal Court Judgment of 1889 is accepted by the parties to be the basic Constitution of the Malankara Church and the Spiritual superiority of the Patriarch of Antioch over the Catholicos and Malankara Metropolitan is not dependent on the 1934,Constitution of the Malankara Association;.[ NOTE; When the 1934,Constitution provided that Patriarch should be Canonically recognized,it naturally meant Canon mentioned in 1934,Constitution by Catholicos faction.  Two versions of Canons were involved in the litigation;one by Catholicos faction and the Other by Patriarch Faction. The chief difference was that the Canon relied upon by the Catholicos faction provided that Spiritual powers of Patriarch and Catholicos is equal and not that of Superior or inferior. Canon relied upon by Patriarch faction provided that Patriarch is Spiritually Superior to Catholicos.   Paragraph 142[1] of AIR 1995 SC 2001=  [1995] Supp.1. S.C.R 542,                              -held that it is unnecessary to decide as to which Version of Canon is valid in the light of the approach in the Judgment. So,when Clause 101 says Patriarch canonically recognized, itmeans that the Patriarch recognized in accordance with Ext 18 provided in Article 3 of the 1934,Constitution which does not recognize spiritual superiority of Patriarch. That,this Honorable Court having recognized spiritual superiority of the Patriarch of Antioch over the Catholicos,it follows that this particular clause/aspect in Ex 18 Canon has not been accepted by this Honorable Court. It cannot,therefore,be said that the Patriarch mentioned in Paragraph 142[4] ,is the Patriarch canonically recognized as provided in Article 101 of the 1934,Constitution.]

1. Whether the effect of the impugned Judgment is to alter the fundamental faith of the Malankara Church which has been found and declared by this Honorable Court in [1995] Supp.1.S.C.R 542. It amounts to violation of Section 3 of the Places of Worship[Special Provisions] Act,1991;

1. Whether the impugned Judgment is wrong in holding that the unconditional Supremacy of the Patriarch of Antioch is not an Article of faith of the Faithful parishioners of the plaint Parish Church It should have been found that Apostolic Succession from the Apostolic Throne of St Peter through the Patriarch of Antioch is the object of foundation of the plaint Parish Church and the Judgment of this Honorable Court in P.M.A Metropolitan  vs Moran Mar Marthoma Mathews & anr  –  has recognised the same,

1. It should have been found that this Honorable Court has held at page 673,Placitum E,F,G,H of [1995] Supp.1.S.C.R 542] -THAT THE Syrian Christians in Malankara believed in the efficacy of ‘Kaiveppu’[laying of hands by Patriarch on the head] while consecrating the Metropolitan and considered it essential to a proper ordaining .Impugned judgment is contrary to and violative of this recognition of faith of the members of the Church by this Honorable Court,

G       Whether the assumption that it is “beyond dispute that the first defendant is a constituent parish church of the Malankara Church”  on the basis of the Judgment of this  Honorable Court in P.M.A Metropolitan’s case [1995] SUPP.1 SCR ,542],is a misconception contrary to the said judgment and fundamendally erroneous vitiating the entire Impugned Judgment?

1. It should have been found that the second part of Relief [A] asked for by the Plaintiffs in O.S No 4 of 1979 [quoted at page No 671,Placitum H and Page 672,Placitum A of [1995] SUPP.1 SCR ,542 ],to the effect that it should be declared that the Malankara Church is not a union or federation of autonomous church units ,has not been granted by the Judgment of this Honorable Court;,

1. Whether the High Court has  erred in  reversing  the  decree of dismissal and  decreeing  the suit even without  framing  the points  for determination  as  mandated  under Order 41 Rule 31 of the Code of Civil Procedure?[

1. Whether the High Court ,  the  First Appellate Court  ,  erred in  deciding  the appeal without  adverting to  the  pleadings,  oral and  documentary evidence  of the   contesting defendants  ?
2. Whether the High Court erred in law  in allowing the Appeal  only  on the basis of  the   decision of the  Division Bench  decision  of   the High Court in Mathew Yohanan V/s  Varghese  reported  in  2013 (4)KLT 945 which is rendered in blatant violation of the Judgment and decree of this Honorable Court  and has even resurrected the declarations contained in the Judgment of the High Court which has merged into the Judgment and decree of this Hoinorable Court and while  the same is  under challenge  before  thisHon’ble Court in CA Nos.3674/2015,3681/15,3682/15 and 3683 of 2015 ?
3. Whether the High Court erred in law  in  disposing  of the appeal   based on  the minority judgement of this Hon’ble Court  in PMA Metropolitan’s case reported in 1995 Suppl. (4)SCC286=AIR1995 SC 2001 which is in variance  with  the majority judgment  regarding  the applicability of  1934 Constitution of the Malankara Association,a Voluntary Association comprised of Parish Churches that had become its members by their own volition ,with respect to the administration and management  of Parish  Churches, that is not Associated with the same?

1. Whether the High Court has  erred in law    in not considering   the  admitted  case  of the plaintiffs  made out   through  cross examination  that  the entire parishioners   were upholding the faith that  Patriarch  Antioch  is the  Supreme  spiritual head of the Church and   that  this  is the Article of faith of the entire  parishioners  and that  parishioners  have the  legal  and Constitutional right to  remain loyal  to this faith  ?

1. Whether the  High Court  has erred in granting  the  declaratory and injunction  decree  regarding   religious  services , administration and  management  of the 1^st Defendant –Church overlooking  the  contentions of the  contesting defendants  based on  the  declaration of law of this Hon’ble Court in  PMA Metropolitan’s case reported in 1995 Suppl.(4) SCC 286 = AIR 1995 SC 2001 to the effect that   such decree  cannot be granted  as  the properties  of the 1^st  defendant- Church are not  scheduled to the plaint?

1. Whether the High Court went wrong in allowing I.A.No. 1431/2014, filed by a stranger to the Appeal for impleading  as addl. 10^th  respondent  even without hearing the parties and  granting  the  relief  by directing  the addl. 10^th respondent  impleaded in the appeal  to convene the parish  assembly of the  1^st defendant –Church and elect Managing Committee including  Trustees and Secretary  without  seeking  any amendment  of the plaint  by amending  prayer (d) in the plaint  sought for  in favour  of the 4^th defendant  in the suit?

      P.Whether the High Court went wrong in not holding that the Suit is barred under Section 47 of the Civil Procedure Code,1908.The filing of Execution Petition No 1 of 1979 in O.S No 4 of 1979 in the High Court by the Malankara Orthodox Church and its pendency should have been noticed and the Suit dismissed as not maintainable,

1. Whether the High Court went wrong in not following the Law laid down by this Honorable Court in 1975 [1] SCR 790=AIR 1974 SC 2141,Swami Paramatmanand Saraswati and another Vs Ramji Tripathi and another,that no relief can be claimed and granted in favour of third party in a Section 92 C.P.C,1908, Suit?
2. Whether the High Court went wrong in not applying its mind to the decisions of General Body of First Defendant Church proved through Exhibits B1[a],B1[b], B1[c], B1[f], B1[g],B1[h] in the suit, attached herewith as Annexures P1,P2,P3,P4,P5,and P6 respectively? Whether it should have been found that Eleventh Petitioner Church,a Voluntary Association of its Parishioners with a Common faith in the Apostolic Throne of St Peter at Antioch have of its own volition stopped all connection with the Malankara Association under the control of the Malankara Metropolitan who declared the Church to be independent[Autocephalous] and preached a different faith in the Apostolic Throne of St Thomas through him?
3. Whether it should have been found that the First Petitioner Church having opted out of all relationships with the Malankara Association from 1971 onwards with notice to its President , a Voluntary Association,none of the authorities of the said Association can have any sort of Spiritual,Ecclesiastical or Temporal authority over the First Petitioner Church qua management and administration

3. DECLARATION IN TERMS OF RULE 3 (2);

The petitioner states that no other petition seeking special leave to appeal has been filed by him against the impugned order.

4. DECLARATION IN TERMS OF RULE 5.

Annexures P1 – P-21 produced along with the Special Leave Petition are true copies of the pleadings documents which formed part of the records of the case in the Court appeal against whose order the leave to appeal is sought for in this petition.

 

5. 5. GROUNDS:

Leave to appeal is sought for on the following grounds, which are taken without prejudice one and other:

• Because the impugned final judgment and order of the High Court is incorrect in law and contrary to the facts and circumstance of the case.

• Because the High Court has  erred in  reversing  the  decree of dismissal and  decreeing  the suit even without  framing  the points  for determination  as  mandated  under Order 41 Rule 31 of the Code of Civil Procedure.

• Because the High Court erred in deciding  the First Appeal without  adverting to  the  pleadings,  oral and  documentary evidence  of the   contesting defendants  -Petitioners.

• Because the High Court went wrong in allowing I.A.No. 1431/2014, filed by the  appellants  for impleading  10^th  respondent  even without hearing the parties and  granting  the  relief  by directing  the addl. 10^th respondent  impleaded in the appeal  to convene the parish  assembly of the  1^st defendant –Church and elect Managing Committee including  Trustees and Secretary  without  seeking  any amendment  of the plaint  by amending  prayer (d) in the plaint  sought for  in favour  of the 4^th defendant  in the Suit.

• Because the  High Court  has erred in granting  the  declaratory and injunction  decree  regarding   religious  services , administration and  management  of the 1^st Defendant –Church overlooking  the  contentions of the  contesting defendants  based on  the  declaration of law of this Hon’ble Court in  PMA Metropolitan’s case reported in 1995 Suppl.(4) SCC 286 = AIR 1995 SC 2001 to the effect that   such decree  cannot be granted  as  the properties  of the 1^st  defendant- Church are not  scheduled to the plaint?

• Because the High Court has erred in law  in allowing the appeal  even without  adverting to  the judgments relied by  the petitioners and cited before the High Court  and referred to  in the  written  Arguments Notes submitted  them at the conclusion of the hearing.

• Because the High Court erred in law  in allowing the appeal  only  on the basis of  the   decision of the  Division Bench   of   the High Court in Mathew Yohanan V/s  Varghese  reported  in  2013 (4)KLT 945 without considering the fact that  the same is  under challenge  before  this Hon’ble Court in CA Nos.3674/2015 and other connected appeals.

• Because the High Court erred in law  in  disposing  of the appeal   based on  the minority judgement of this Hon’ble Court  in PMA Metropolitan’s case reported in 1995 Suppl. (4)SCC286=AIR1995 SC 2001 which is in variance  with  the majority judgment  regarding  the applicability of  1934 Constitution with respect to the administration and management  of Parish

• Because the High Court erred in law  in  allowing the appeal   without appreciating  the  contentions  of the defendants  with respect to the  Jacobite faith  being  followed  by the entire parishioners  from the  date of  establishment  of the 1st defendant –Church and  also overlooking the contentions that   decreeing the suit  will amount to  conversion  of the faith  of the  church  which is impermissible  under law.

• Because the  interpretation  of the High Court  regarding the status of  Patriarch of Antioch  is  contrary  to the finding  of  this Hon’ble Court in PMA Metropolitan’s case  reported  in 1995 Suppl. (4)SCC286=AIR1995 SC 2001 to the effect that  Patriarch of Antioch is the  Supreme head of  Syrian Church of  which  Malankara Church is  a division  and that  Patriarch is  spiritually  superior   to the

• Because the High Court  is not correct  in law, in   allowing the suit by granting  the prayers sought  for in the plaint  even by moulding  one of the  reliefs  overlooking  the contention that   granting the  reliefs   will amount to   conversion  of the Church from the faith  which is  being followed by the 1^st defendant –Church and   therefore  is hit  by  Section 3 of the Places  of Worship (Special Provisions) Act 1991.

• Because the High Court has  erred in law  in not considering  the  decision  of this Hon’ble Court  reported in 2007 (3)KLT 349 SC   with respect to  interpretation of PMA Metropolitan’s Case  1995 Suppl.(4) SCC 286 = AIR 1995 SC 2001 to the effect that   cases  with respect to  individual Parish Churches have to be decided  on the basis of pleadings and evidence   as to  which group  is  in control and management  of the Parish Church.

• Because the High Court has  erred in law  in granting  the  decree  in favour of the plaintiffs  overlooking the  fundamental rights of the  parishioners  guaranteed under Articles  19(1) (c) and 26(b) of the Constitution of India.

• Because the High Court has erred in law   in not answering   all the issues involved in this suit.

• Because the High Court has  erred in law    in not considering   the  admitted  case  of the plaintiffs  made out   through  cross examination  that  the entire parishioners   were upholding the faith that  Patriarch  Antioch  is the  Supreme  spiritual head of the Church and   that  this  is the Article of faith of the entire  parishioners  and that  parishioners  have the  legal  and Constitutional right to  remain loyal  to this faith.

• Because the   High Court  erred in law in not    considering   and  analysing the  evidence  and  documents produced by the contesting  defendants  to prove  the  actual   faith of the 1^st defendant-Church,  is  clearly

• Because the High Court is erroneous in not appreciating that three Learned Judges of this Hon’ble Court passed directions to frame the Decree following the Judgment in PMA Metropolitan vs Moran Marthoma=[1995] Supp.1.SCR 542,after detailed procedure before the Registrar of this Honorable Court. The declarations, directions contained in the Majority Judgment rendered by Justice B.P.Jeevan Reddy and Justice S.C.Sen were alone included in the Decree and not a single declaration / direction or conclusion of Justice R.M. Sahai was made part of the Decree. Conclusions in the impugned judgment following the minority Judgment is erroneous.
• Because the High Court has committed grave error in not appreciating that the Malankara Association formed in 1876 was a Voluntary Association of the then existing Parish Churches  and its authorities have no right to properties including management of Parish Churches.

• Because the judgement and orders of This Hon’ble Court in [1995] Supp 1.S.C.R 542-1995supp[4]:SCC286-,[1996] 3 SCR 85=1996[10]SCC 470-, [1997] 1 SCR 936-1997[8]SCC 614- AIR 1997 SC 1035, does not amount to an injunction restraining the faithful members who constitute the parish churches from disassociating from the Malankara Association. The judgement and orders of This Hon’ble Court does not take away the fundamental rights of the parishioners of the parish churches,guaranteed by the Constitution of India.The title to and control of the properties of the parish churches are vested in its parishioners who exercise the said right through decisions taken by the majority, without violating the basic faith of the Syrian Christian Church. The properties of the parish churches follow the majority of its parishioners.
• Because the High Court failed to realise that the authorities of the Malankara Association can exercise powers only with respect to the Syrian Christian Community that continue to be associated with it. Every Syrian Christian in India[Malankara] has the fundamental rights guaranteed under Articles 19[1[c], 25 and 26 of the Indian Constitution vested in them.The said Syrian Christians has got the right to give effect to the said rights remaining as Parishioners of the Parish Churches in India which are consecrated and dedicated accepting the faith of the Syrian Christian Church.They exercise their rights qua the church building, the cemetery and other properties of the Parish Churches in which they are the parishioners. A Parish Church cannot have a status and right to manage its affairs separate from its properties as is now found by the High Court in the impugned Judgment at paragraph 13.

• Because,Articles 19 (1) (c), 25 and 26 gives complete freedom to a section of a denomination to  form an Association within the same denomination without violating its faith, and basic object of foundation(parishioners of the  parish churches form such a section].  The faithful members of the First Petitioner Parish church continue as Syrian Christians in the Syrian church under the Patriarch by accepting religious dignitaries Consecrated by him,

• Because the High Court failed to appreciate that the creation/establishment of the Malankara Association, the framing of the 1934, Constitution of the malankara church etc are only for the management and administration of the Common Properties arising from the Cochin Award of 1840[ Annexure -1] of Syrian Christian Community in malankara. Administration/management by the hierarchy of spiritual and temporal authorities contemplated by the 1934, Constitution is not an object of foundation or basic faith of the parish churches .  The said Malankara Association itself was established in a meeting of the accredited representatives of the then existing parish churches.  The said representatives were elected by majority decision of the General Body Meetings of the said parish churches.  It is most humbly submitted that if the elected representatives of the parish churches can constitute the Malankara Association, it can also opt out of the said Association and form another Association within the Syrian Orthodox Sabha.
• Because the High Court failed to appreciate that the First Petitioner had opted out of the Malankara Association in 1952 itself by Annexure P-1[Exhibit B1[a]] decisions followed by decisions proved by Annexures P-2,P-3,P-4,P-5 and P-6 and have functioned ,accordingly, without any sort of objection from the authorities of Malankara Association,

• Because,the High Court failed to appreciate that the cooperation with Malankara Association during 1959-1970 was consistent with the spirit of unification accepting the faith of Apostolic Succession from the Apostolic Throne of St Peter through the Patriarch of Antioch and it does not amount to an estoppel to the First Petitioner Church that it shall continue as a unit of the Malankara Association for all time to come. Sending representatives to Malankara Association in 1959,1962 and 1970 was a voluntary Act of the First Petitioner Church and on the same reasoning ,the Church has the freedom not to send representatives also.

• Because the High Court through the impugned judgment has practically converted the Malankara Church to an autocephalous Church [independent church] which was specifically rejected by this Honorable Court [Please Refer to Page 679, Placitum G and H ,and Page 680,Placitum A AND G and H  of [1995] Supp.1.S.C.R 542] .

• Because,the High Court Judgment will adversely affect the interests of several lakhs of members of the Syrian Christian Community and their Parish Churches to capture which the Malankara Association’s authorities[Catholicos Faction] have instituted Suits under Section 92 Civil Procedure Code,1908,and Execution Petition No 1 of 2009 in O.S No 4 of 1979 in the High Court of Kerala.

6. GROUNDS FOR INTERIM RELIEFS

(i).     Because the direct  consequence of the judgment and order of the High Court of Kerala, if not stayed, will be to oust the entire body of Parishioners of the Church, except the Plaintiffs, from entering and Conducting Religious Services in the Plaint/First defendant Church.

(ii).    That when the Trial Court dismissed the Suit status quo was directed to be maintained by the First Additional District Court ,Ernakulam, Thereafter, during the pendency of the Appeal in the High Court of Kerala,,interim order of Status quo as directed by the trial court in its judgment was directed to continue.  That the High Court of Kerala after allowing the Appeal and decreeing the Suit, has directed status quo to be maintained for 45 days from date when judgment to enable the contesting respondents therein/Petitioners herein to approach this Hon’ble Court. The Stay is likely to expire on 10.10.2015.

(iii).    That it is only just, fair and equitable to direct maintenance of the status quo of conduct of religious services and administration of the 11thRespondent Church till final the disposal of the Special Leave Petition. Otherwise, serious prejudice will be caused to the petitioners and the entire parishioners will be put to irreparable harm, loss and injury. Balance of convenience is in favour of granting the interim relief as prayed for.

 (iv).    That, the findings contained in the impugned judgment are directly contrary to the binding judgment, orders and decree of this Honorable Court in PMA Metropolitan vs Moran Marthoma=[1995] Supp.1.SCR 542, and will seriously prejudice the contentions of the parties in several suits pending in the lower judiciary of Kerala. It is likely to be blindly followed and Suits/Appeals disposed off without consideration of contentions of parties. It is, therefore, necessary to stay the operation of the findings and declarations contained in the impugned judgment till this Hon’ble Court finally decides the legal effect of the Judgment and decree arising from PMA Metropolitan vs Moran Marthoma-[1995] Supp.1.S.C.R 542 AND subsequent Orders.

                             Execution Petition No 1 of 2009 in O.S No 4 of 1979 is pending before the High Court purporting to execute the decree of this Honorable Court in Civil Appeal No 4958-4960 of 1990. If the Judgment is not stayed,it will adversely affect the said  Execution Petition

 

7. MAIN PRAYER

It is respectfully prayed that this Hon’ble Court may be graciously pleased to grant Special Leave to Appeal from and against the final Judgment and Order of the High Court of judicature at Kerala, at Ernakulam,  dated 21-08-2015,  in Regular First Appeal   No. 193 of 2014

8. PRAYER FOR INTERIM RELIEF

The petitioner therefore most respectfully prays that this Hon’ble Court may be graciously pleased to:

1. Pass ad-interim ex-parte orders staying the operation of the Judgment and Order of the High Court of Kerala at Ernakulam, dated 21-08-2015,  in Regular First Appeal No 193 of 2014
2. Pass ad interim ex-parte Order directing maintenance of status quo as on the date of the impugned judgement in the first petitioner Church  till final disposal of the Special Leave Petition.

• Confirm the stay as prayed for in prayer (i) & [ii] above after notice to the respondents and;

1. Pass such other and further orders.

Drawn on:                    

Filed on:    `

DRAWN & FILED BY

  the Petitioner

 

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.             OF 2015

 

IN THE MATTER OF:

V.E. Thomas & Others                                      ………Petitioners

                                      VERSUS

Mathai Varghese & Others                      ………Respondents

CERTIFICATE

 

Certified that the Special Leave Petition is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the Petition or to make out grounds urged in the Special Leave petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the Petitioner/person authorized by the Petitioner whose Affidavit is filed in support of the SLP.

Filed on: ……..2015

                                                                   FILED BY

                                                                   P.K. MANOHAR

                                                      Advocate for the Petitioners

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.              OF 2015

IN THE MATTER OF:

V.E. Thomas & Others                                      ………Petitioners

                                      VERSUS

Mathai Varghese & Others                      ………Respondents

AFFIDAVIT

          I, V.E. Thomas, S/o. Ittoop , Aged 64 Years, Velloor House, Mattakkuzhi Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam District, Kerala, do hereby solemnly affirm and state as under:

1. I am the petitioner No.1 in the above special leave petition and as such I am conversant with the fact and circumstance of the case. I am competent to swear this affidavit.
2. I have gone through a copy of the Special Leave Petition at pages………. to  ……… having paras 1 to 8, the synopsis and the list of dates at pages B to      and I say that the contents thereof are true and correct to the best of my knowledge.
3. I have gone through a copy of the application for exemption from filing official translation of Annexures P1 to P11 & P14 & P15 at pages………. to  ……… having paras 1 to 4 and I say that the contents thereof are true and correct to the best of my knowledge.
4. I say that the Annexures P1 to P 32 to the Special Leave Petition are true and correct copies/ English translations of their respective originals.

Dated this the 19^th  day of  Sept. , 2015                                                                                                                                               DEPONENT

 

Verification

I, the above named deponent do hereby verify and state that the contents of the above affidavit are true and correct to my knowledge and nothing material has been suppressed therefrom.

Verified this the 19^th day of  Sept. , 2015

                                                                   DEPONENT

Identified, sworn, signed and verified before me in my office at Ernakulam, oo 19.9.15

                                                                   Advocate

ANNEXURE P-2

English Translation of Relevant Portions of Exhibit B1[a]

            -Pursuant to notice issued on 4.3.1952,the following decisions were taken at the meeting of General Body of Varicoli St Mary’s Church held on 9^th March,1952 A.D, Sunday afternoon at 1 PM, under the presidentship of the Vicar, respected Fr P.S.scaria;

          1] The respect and allegiance of this Church General Body to His Holiness, Moran Mar Ignatius Aphrem –Ist , Patriarch seated on the Apostolic Throne of St Peter for Antioch and All The East, and to His Grace Paulose Mar Athanasius metropolitan under Him functioning as Kandanad Diocesan metropolitan which is inclusive of Varicoli St Mary’s Church, is hereby recorded;

           2] Whereas both factions have settled their differences after High Court judgment ,it was decided to be under the administration of Kandanad Diocesan metropolitan elected by the said Diocese and ordained by the Patriarch and under the authority of the Patriarch. Decided to administer the Church in accordance with the previous udampady[Agreement] of the Church;

          3] In this Church, from now onwards, Rev Fr Palakattil Pathros Scaria, Fr Palakkattil Scaria, Fr; Padiyil Mathai Alexandrios,Fr Chalappurath Mathai Abraham,shall be Vicars based on the agewise seniority .Among them, Fr Palakkattil Pathrose Scaria shall be the Permanent Vicar and President and the others shall be vice Presidents. Till church construction is completed, Vicars shall be entitled to all Church incomes etc,

          4] Every year on the 31^ST of Makaram [February   every year],on annual festival n that day; day, annual General Body meeting has to be held ,trustees for the next year elected. From now onwards, General Body meeting has to be held after announcement in the Church on three consecutive Sundays or by publishing notice;

          5] The present trustees viz; Thelakkattu Ittoop Varkey, Chennoth Pathros Phillipose, shall continue in ofiice till the next 31^st of Makaram[Next February];

          6] The present assistant[kapiar] of the Church ,Ethala Varkey Mathai, shall be given Rs 12 and 24 para of Paddy every year from now onwards,

          7]  It is necessary to change the roof of both the Church and Room. A committee comprised of the following members with the Priests shall be constituted for collection of funds for the said and to give directions for the repair and maintainance mentioned above,viz; [1] Fr Padiyil Alexandrios,[2] Fr Chalappurath Abraham [3] Chennoth Pathrose Mathai, [4] Chennoth Pothan Paily,[5] Ichikottil Varkey Pathrose, [6] Padiyil Chandy Mathai,[7] Ambattumalal Mathai Varkey;[8] Chirattumoolayil Chacko Varkey,[9] Padinjarekonath Cheria Thomman,[10] Padiyil Paily Mathai,[11] Thottappilly Cheria Varkey,[12] Mathokkil Kurian Varkey,[13] Thelakattu Paily Varkey,[14] Mekka Paily Pathros, [15] Thazhuthedath Varkey Kuriako ,[16] Kandamkulam Iype Varkey;

          8] A Parish Register shall be maintained for this Church ,and in the page allotted to each family, the head of the family shall affix signature;

          9] Till a Constitution is framed for this Church and implemented, the future administration shall be in accordance with the decisions now taken in this General Body meeting ,

          10] This Diary shall be presented before the Diocesan metropolitan and his approval obtained.   Meeting concluded.

               [Signed by 43 members present in the meeting]

                       And the Vicar.

         We hereby permit to proceed in accordance with this Diary decisions till further Orders.

         Paulose Mar Athanasius metropolitan of Malankara and especially of Kandanad Diocese.

1952, May 30^th Aluva Thrikkunnath Seminary                           [sd]

                    This is true English Translation of Exhibit B1[a] of the Suit,O.S No 10 of 2003 of the First Additional District Court,Ernakulam.

 

 

 

ANNEXURE P-3

English Translation of Exhibit B1[b] in O.S No 10 of 2003-

          Decisions taken in the Extra Ordinary General Body meeting held on the   25^th of July,1971,under the Presidentship of Vicar Rev Fr. K.P. Peter, after  notice by announcement in the Church on three Sundays consecutively ;

          Proceedings of the meeting started with prayers. Initially, the President read Clauses 1 to 44 of the Malankara Sabha Constitution;

          It was decided not to approve the Sabha Constitution in this Church.  Church in the present circumstances, Meeting dispersed after prayers.

                           [Signed by 41 members present in the meeting]

This is true English Translation of the relevant portions of Exhibit B1[b] of the Suit, O.S No 10 of 2003 of the First Additional District Court,Ernakulam.

ANNEXURE P-4

English Translation of Exhibit B1[c] of O.S No 10 of 2003-Relevant portions

 

           The General Body meeting of this year started under the Presidentship of the Vicar, Fr C M Abraham, on the 14^th of January,1973,Sunday afternoon at 2.30 P.M after announcement in the Church on three consecutive Sundays as per usual practice;

                         1]           Started with prayers and reading of                                           Report. Report was passed.

                         2]                    Audit Report was read,

                         3]                    Accounts of 1972 were read and                                                passed[Including that of Sunday

                   School]

                         4] a]       Velloor V.E.Thomas and Pakayil                                                P.A.George were elected as                                                                         Trustees by the meeting unanimously;

1.   Members of the Committee

                                   1] A.P.Chandy,Embasseril,

                                    2] Chacko Varky,Panakkad,

                                    3]P.V.Paily ,Plapillil,

                                    4] P.C.Joseph,Palakkattil

                                    5] C.T.Josephkutty,

                                    6] M.C.Mathai,Mundakkal,

                                    7] K.P.Puravath Chennoth

                                    8] C.A.Varghese,Chennoth,

                                    9] Pothan Kuruvilla,Chennoth,

                                    10] Varkey Paulose ,

                                   11] Varkey Karakkattukuzhi[reservation];

                                          AUDITORS OF 1973

                               1]     P.U.George, Palakkattil,

                              2]      C.P.Peter, Chettiyad.,were

          unanimously elected as Auditors.

                         RESOLUTIONS

1. This meeting hereby record the respect and acceptance of Moran Mar Ignatius Yacoub, IIIrd, The Patriarch,seated on the Apostolic Throne of the Antioch and All The East.

           Presenter; K.P.Puravath;

                              Supporter;   T.M.Baby

              Meeting passed the Resolution unanimously.

 2] Resolution presented by Shri Isahac Varghese,Keezhupilli,that money from the Church should be given for construction of Kurisu Pally[Chapel with a cross] should be given only after Church building is brought down for repai, was rejected by the Meeting;

   3] Whereas, the Kalpanas[Orders] coming from the Catholicos with the designation that he is seated on the Apostolic Throne of St Thomas,are against the faith and traditions, this meeting decides that Kalpanas[orders] with such designations shall not be read in this Church or implemented;

          Decided to stop all contributions to the Catholicate Centre ,till the designations mentioned above are removed from the Kalapanas[Orders];

                   Presenter; V.E.Thomas,Velloor;

                             Supporter; Paily Varkey

                      The Resolution passed unanimously.

  [Rest of meetings are relating to internal day to day management]

                “——–The contents of the third decision herein will be subject to understandings in the Malankara Church between the Patriarch and the Catholicos regarding the difference of opinions in Malankara Sabha”

                   Philaxinose Paulose Metropolitan[sd] 19.1.1973

[This is true English Translation of relevant portions of Exhibit B1[c] of the Suit,O.S No 10 of 2003 of the First Additional District Court,Ernakulam.

ANNEXURE P-5

English Translation of Relevant Portions of Exhibit B1[f]

        Decisions taken in the Extraordinary meeting of the General Body of the Church on the 30^th of March, one thousand nine hundred seventy five[30-3-1975] at 9 AM, under the Presidentship of the Vicar;

1. RESOLUTIONS, Submitted by the Managing Committee

              [i] “ This Church Parish Meeting hereby record its respect and faith and allegiance to Mar Ignatius Yacoub, the Third, the Patriarch seated on the Apostolic Throne of, Antioch and All the East,

             [ii] Whereas, the meeting of the accredited representatives of Kandanad Diocese had elected and Having being ordained from the Holy Throne of Antioch and appointed by appointment order from 1952 onwards, His Grace Paulose Mar Philaxinos metropolitan has been carrying on the administration of the Kandanad Diocese ,  this Parish General Body meeting hereby record the respect, faith and allegiance to him. It is hereby promise and declare that this Parish will continue in obedience to orders by said metropolitan and the Apostolic Throne of Antioch which ordained the metropolitan”

            [iii] This Parish hereby unanimously decides to reject as not acceptable ,Ougen Catholicos and metropolitans under him who reject and do not accept the Patriarch seated on the Apostolic Throne at Antioch and his Spiritual authority in Malankara which is only a part of Universal Syrian Church and who also preach and take the stand that that Malankara Church is an independent Church, that there is a Apostolic Throne for St Thomas, that the Catholicos and the Patriarch are equals in spiritual power; it is also decided that they shall not be allowed entry into this Church or properties of the Church and shall not be allowed to participate in the religious services herein.

           The trustees are entrusted to send by post the above mentioned decisions by the General Body  in the address of Baselious Augen I, Catholicos [under suspension], Catholicate Office, Muttambalam, Kottayam.

1. Decision taken by the youth movement of this Church to join the Malankara Jacobite Syrian Christian Youth Association is approved by this General Body,

III. An amount of Rs 300/ is decided to be given on request by Youth Association Secretary,

                  Meeting concluded with prayers at 10 A.M

          [Signed by Vicar and 64 members present in the meeting].

      This is true English Translation of relevant portions of

Exhibit B1[f] of the Suit, O.S No 10 of 2003 of the First Additional District Court,Ernakulam.

.

ANNEXURE P-6

English Translation of Relevant Portions of Exhibit B1[g]

               Decisions taken in the Parish General Body meeting held in the Church on 4.5.1975,Sunday,Presided over by the Vicar, after announcement in the Church on three consecutive Sundays starting from 20^th of April, One thousand nine hundred seventy five,

1. The meeting unanimously elected Shri V.E.Thomas, Velloor and Mr T.P.Varkey, Thelakkattu,along with the Vicar as accredited representatives of the Church to participate in the meeting of Church representatives of the Dioce, pursuant to Kalpana[Order] No 124/75 by Diocesan Metropolitan;
2. The following Resolution was unanimously passed by the Meeting, viz;

              “ This Parish General Body unanimously decides that the Catholicos and seven metropolitans under him, those of whom who are identifying with them and all priests, who believe in the heresy of “ The Catholicos being seated on the Throne of St Thomas” ,and suspended by His Holiness Moran Mar Ignatius Yacoub the Third, Patriarch, the Supreme Spiritual  Head –shall not be allowed to enter into our Church, its properties, institutions established and maintained by our predessessors to conduct religious services and protect its object of foundation and shall not be allowed to conduct religious services in our church;

         If there priests in our parish holding the above view, they will be permitted to conduct priestly functions only.

               Presenter; Shri V.E.Thomad,Velloor

               Seconder; P U George,Pulikkattil.

3. Decided to give Rs 50/ to help Mathew Ouseph,Velloor on his request,
4. Decided to give Rs 15/ to Paulose,Palandam on his request,
5. Whereas the Kabar situated in Church compound is incapable of being opened, since it is not possible to bury the dead in the Church compound again, the lawful representatives owning the said kabar shall be allotted a space in the new cemetery to put up a kabar that can be opened.

        General body approved the decisions of the managing committee meeting held on 30^th of April,

               Meeting concluded with prayers at 12 P.M

                              [Signed by 25 members and Vicar]

            This the true English translations of relevant portions of decisions taken in General Body meeting of First Defendant Church on 4.5.1975,marked as Exhibit B1[g] in O.S No 10 of 2003 of the First Additional District Court,Ernakulam.

 

 

ANNEXURE P-7

English Translation of Relevant Portions of Exhibit B1[h]

             Proceedings of the Annual General Body meeting of St Mary’s Jacobite Syrian Church,Varicoli, held on 8/1/1978,after announcement in the Church on three consecutive Sundays starting from 25/12/1977;

1. Meeting started with prayers from Fr Abraham Mathews, the Vicar, at 2.30 P.M,
2. Notice for the General Body was read and passed
3. After prayers, a Resolution was presented by the Vicar, Fr Abraham Mathews, seconded by C.T.Paulose, members of the meeting stood up faithfully and its was passed unanimously.

RESOLUTION.

         The Resolution of faith presented by the Parish General Body meeting of St Mary’s Jacobite Syrian Church, Varicoli, held on 8/1/1978;

               The acceptance and allegiance of this Parish to His Holiness Moran Mar Ignatius Yacoub-IIIrd, the Patriarch ,seated on the Apostolic Throne of St Peter ,to His Grace Paulose Mar Philaxinose, Catholicos-Malankara Metropolitan-Kandanad Diocesan metropolitan, to His Grace Thomas Mar Osthathios, Assistant metropolitan of Kandanad, is hereby recorded; It is further decided that obedience and allegiance to the Patriarch and the Catholicos and metropolitans under Him shall be maintained.

5. Annual report read and passed
6. Accounts till 1977 were read and passed,vuz; a] church, b]   Chemmanad Sunday School, c] Mattakuzhi Sunday School, d]         Varicoli Sunday School, e] Social Service league,   f] Youth Association;
7. Audit report of 1977 and its reply was read and the General body passed the same,
8. The following persons were elected as office bearers of next year, viz;

           [i] Trustees                     [1] C.T.Paulose, Cheerattumoolayil,

                    [2] T.M. Baby, Thelakattil.

          [ii] Members of Managing Committee

1. Varicoli-          1.T.P.Varkey,Thelakattu
2. A.P.Chandy,Edacheril
3. Cheria Kuriako, Chayattil.
4. Mattakuzhi- 1. K.V.Varkey,Thekkadam Malil
5. C.V.Paulose,Chirattumoolayil
6. K,E,Yacob,Kizhippillil
7. V.E.Thomas, Velloor
8. Chemmanad 1.Varkey Pathros,Chennoth
9. Mani Paily ,Cherukad
10. Paily Puravath,Chennoth
11. Kuzhikkad Paily Thomas,Manath,
12. Reservation Palathadam Mathaio Mathai

          III.  AUDITORS               1. C.I.Varghese,Chennoth

2. K.A Paulose,Keerikuzhi
3. A resolution presented by K.E,Yacoub having been withdrawn by the presenter himself, was not taken up for discussion,
4. Request made by P.C.Joseph, Palakkattil, was considered ,and it was decided as a prelude to reconstruction of KURISU PALLY[Chapel with cross ] at Mattakuzhi to hold a general body meeting at that place and to inform the Church general body the decisions taken therein and Vicar was entrusated to take appropriate proceedings in this regard;
5. Request by teacher in charge on behalf of Varicoli Mar Osthathios Sunday School was considered and sufficient amount required to put up scree, table etc is decided to be included in the Budget; Door for windows was also decided to be put up along with maintenance to the Church;
6. Based on the request by Headmaster of Mattakuzhi St Marys High School. it was decided to have bench, screen, Almyra etc for them;
7. It was decided not to consider the request by the Varicoli Sunday School teacher in charge for the time being;
8. Decided to give Rs 5/ as additional amount to Varkey Kuriako, Parayil, the servant working in the Church,
9. Budget for next year prepared.
10. Decided to put up in notice board names of those who are in arrears of amounts due to Church on the Church contributions, auction amounts etc
11. A Extraordinary General Body meeting has to be convened and held to discuss about matters concerning the reconstruction of the Church building;
12. Request by M.M. Mathai was referred to consideration by the Managing Committee;

                     Meeting concluded at 7.30PM after prayers.

 [Signed by 54 members present and Vicar.

    Counter signed by Thomas Mar Osthathios metropolitan]

[This is the true English translation of relevant portions of Exhibit B1[h] of O.S No 10 of 2003 of First Additional District Court, Ernakulam]

ANNEXURE P-8

BEFORE THE HON’BLE DISTRICT COURT, ERNAKULAM

 O.S.No.        10     of 2002

Plaintiffs:-

 

1. Mathai Varghese, S/o. Varghese, aged 55,

          Muthirakalayil House, Mattakuzhi, Varikoli P.O.,

          Thiruvaniyoor Village.

2. T.M.Paulose, S/o. Mathai, aged 53,

          Thelakkat House, Varikoli P.O. Puthencruz   Village.

3. C.E. Geevarghese, aged 40, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

4. M.C. Paulson, aged 38, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

5. T.T. Paulose, aged 48, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi,

          Varikkoli      P.O.,

          Thiruvaniyoor Village.

6. T.V. Thomas, aged 44, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

7. O.V. Varghese, aged 63, S/o. Varghese,

          Othimaparambil House, Pancode P.O.,

          Ikkananadu North Village.

8. M.K. Paulose, aged 45, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

9. Baby Joseph, aged 45, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

10. C.C. Philip, aged 45, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O., Puthencruz Village.

Defendants:-

 

1. St. Mary’s Orthodox Church,

          Varikoli,  Varikoli P.O. Puthencruz, rep. by its         Trustee.

2. Binoy Varghese, aged 31, S/o. Varghese,

          Ikkarayil House, Mattakuzhi, Varikkoli P.O.

3. C.A. Varghese, aged 60, S/o. Abraham,

          Chemmoth House, Chemmanadu, B.K.         Puram.P.O.

4. Rev. Fr. Mathai, Vadakkineth, S/o.

          Vadakkineth House, Ezhakkaranad South P.O,

          Maneed Village.

5. V.E. Thomas, S/O.Ittoob Aged 64 Years,

          Velloor House, Mattakkuzhi Varikkoli P.O.,

          Puthencruz Village, Kunnathunadu Taluk,

          Ernakulam District, Pin-682 308.

6. P.A.George, S/O.Alexander, Aged 61 Years,

          Padiyil House, Mattakkuzh, Varikkoli P.O.

          Kunnathunadu Taluk, Ernakulam Dist,

          Pin-682 308.

7. K.I.Yacob,S/O.Isahac,Aged 59 Years,

          Kizhipillil House, Mattakkuzhi,

          Varikkoli P.O., Kunnathunadu Taluk,

          Ernakulam Dist, Pin-682 308.

8. V.V.Mathai, S/O,Varkey, Aged 54 Years,

          Vellooputhenpurayil House, Choondy,

          Vadyam Bady P.O.,

          Aikkaranad South Village,

          Kunnathunadu Taluk,

          Ernakulam Dist. Pin-       682 308.

9. Ajosh George,S/O.George, Aged 32 Years,

          Padiyil House, Mattakkuzhi,Varikoli P.O.

          Puthencruz Village, Kunnathnadu Taluk,

          Ernakulam Dist, Pin-682 308.

The address for service of processes and notices to the plaintiffs are that of their counsel PAUL K VARGHESE, Advocate, Chittoor Road, Cochin- 18.

PLAINT FILED UNDER SECTION 92 ORDERS 7 RULES 1 AND ORDERS 1 RULE 8 OF CODE OF CIVIL PROCEDURE.

 

1. The 1^st defendant church is a church of Malankara Orthodox Church of coming under Kandanadu Diocese and is a public trust. The 1^st defendant church is opened to the public and in particular to parishioners innumerable in number. The plaintiffs are the parishioners of the 1^st defendant church. The defendants 2, 3 and 4 are claiming to be the trustees and Vicar of 1^st defendant respectively.

2. The parishioners are too many and it is impossible and impracticable to implead all the parishioners in the suit. Hence, the suit is instituted in a representative capacity under order 1 Rule 8 of the Code of Civil Procedure representing all the person interested in the subject matter of the suit.

3. It is submitted that the administration and management of the 1^st defendant church is to be carried out as per the provision of 1934 constitution. The Supreme Court as per the judgment in AIR 1995 SC 2001 upheld the validity of 1934 constitution which shall govern the administration and management of all churches including 1^st defendant church. The Supreme Court subsequently amended the Clause No.46, 71 of 1934 constitution. The Supreme Court also held that whatever be status of the parties, whether he is a Catholicose, Bishop, priest, trustee or parishioners, he shall swear allegiance to 1934 constitution to get the benefit of status quo ordered by Supreme Court.
4. Since the 1^st defendant church coming under Kandandu Diocese Dr. Thomas Mar Athanasius, being the Metropolitan of the Kandanadu Diocese including the 1^st defendant church has been discharging all functions pertaining to the office of Diocesan Metropolitan in respect of all churches including the 1^st defendant church. The vicars’ including the 4th defendant is appointed by Dr. Thomas Mar Athanasius in accordance with Article 40 of 1934 constitution. Thereafter the Hounourable Supreme Court directed the Catholicose Kottayam, to take necessary steps to conduct election to the managing committee of Malankara Church Justice Mallmath was appointed as the observer to the election to the managing committee held on 20.03.2002. The election to the managing committee held on 20.03.2002 in accordance with the direction of Supreme Court and the same was confirmed by the Apex Court also. Thereafter, the meeting of the managing committee held on 10.08.2002 and Dr. Thomas Mar Athanasius and Dr. Mathews Mar Savories were again appointed as the Metropolitan of Kandanadu Diocese. The Kandanadu Diocese was divided into two for the purpose of administration-East and West. Dr. Thomas Mar Athanasius has been appointed as Metropolitan of Kandanadu Diocese east of which 1^st defendant church comes and is discharging his duties as metropolitan. The 4^th defendant was originally appointed as the Vicar of the 1^st defendant by the Metropolitan. After Dr. Thomas Mar Athanasius was appointed as the Metropolitan of Kandanadu Diocese, East he issued fresh Kalpana No. 58/2002 confirming the appointment of 4^th defendant as Vicar of the 1^st defendant church.

5. Defendant 2 & 3 are claiming to the trustees of 1^st defendant church. They were elected as trustees only for the period of one year by the Pothuyogam dated 17.01.1999. Thereafter, no Pothuyogam has been convened or there appointment was extended further by the Diocesan Metropolitan. It is submitted that as per Article 12 of 1934 constitution to the 4^th defendant Vicar has to call for Pothuyogam in respect of 1^st defendant church. Article 13 provides that the pothuyogam shall be convened at least twice every year. The secretary, trustee, managing committee members were elected by the pothuyogam for a period of one year as per Article 17 of the constitution. The secretary is duty bound to write and keep the minutes of the church and get signature of the Diocesan metropolitan Dr. Thomas Mar Athanasius. It is the right of parish assembly to pass budget for the year, appointment of auditors and approved of yearly account and the consideration of decision on matters required for the parish. The trustees shall have the duty to record and maintain true and correct account of the parish regarding the income and expenditure of the parish in accordance with the direction of the parish assembly and parish managing committee. These accounts shall be submitted before the pothuyogam every six months and presented to the parish managing committee and presenting the same to the parish assembly. The said account books of the parish shall be got countersigned b the Diocesan Metropolitan. This was the practice followed in the 1^st defendant church till 1998.

6. The defendants 2 and 3 were elected as the trustees for a period of one year in the 1^st defendant church no secretary was elected as appointed till this time by the pothuyogam as per 1934 constitution. The term of the defendant 2 and 3 expired in January 2000. But, the 4^th defendant Vicar has not taken any steps to call for a pothuyogam and elect new office bearers including the Secretary and the trustees. None of the accounts were audited and submitted before the pothuyogam to get their acceptance. In addition to that, the defendant had not made any attempt to present the account before Dr. Thomas Mar Athanasius that is the Diocesan Metropolitan for his approval in accordance with 1934 constitution. It is submitted the lakhs of rupees is being collected by the defendants without keeping proper accounts. Most of the incomes were not accounted and no receipt has been issued. Lakhs of rupees were being expended and wasted by the defendant in accordance with their own whims and fancies without getting the approval of the pothuyogam, even though the same is mandatory as per the provision of 1934 constitution. The defendants 2 & 3 are claiming to be the Trustees and are doing all the illegal acts in active support and connivance of the 4^th defendant who is vicar. At present there is no legally elected trustee in 1^st defendant church. It is submitted that in order to prevent this kind of misuse and also to prevent a vacuum in the administration of the church on various occasions the plaintiffs and other parishioners requested the 4^th defendant to take immediate steps to conduct pothuyogam but it evoke no respond. The defendant even said that they will administer and manage the church on their own accord and nobody or can question it and even said that they are not bound by the decision of the Apex court as well as 1934 constitution. In these circumstances in order to prevent the illegal acts of the defendant and also to protect the interest of the parishioners and the property of the church.  It is just and necessary to appoint a Receiver to manage the affairs of the church.  Moreover defendants 2 & 3 have no right or authority to claim as trustees of 1^st defendant church. Hence, it is just and necessary to pass a decree of mandatory injunction directing the 4^th defendant, Vicar to call for an urgent pothuyogam. In accordance with 1934 constitution and conduct the election and also restrain the respondents 3 & 4 from discharging the duties as trustees by an order of injunction.

          6[A].  The 4^th defendant is the Vicar of the 1^st defendant church appointed by the Diocesan Metropolitan. In accordance with 1984 Constitution. Only a Vicar/Priest appointed under 1934 Constitution by the Diocesan Metropolitan alone can conduct religious ceremonies in the 1^st defendant church. The attempt of defendants 2 & 3 and others to bring Vicar/Priest not appointed in accordance with 1934 Constitution is to disrupt the peace and harmony in the 1^st defendant church.

7. The cause of action for the suit arose on January 2000 when the term of the defendant expired and on 15.01.2001, 30.09.2002 and also on various dates when the defendant refused to call for a pothuyogam as per the demand by the plaintiff and thereafter at Thiruvaniyoor village Kunnathunadu Taluk within the jurisdiction of this Honourable court.

8. Valuation for the purpose of court fees and jurisdiction is shown below.

9. Therefore, it is humbly prayed that this Honourable court may be pleased to pass a decree granting the following relief:-
10. a) Decree of declaration that the 1^st defendant church is governed by 1934 constitution as upheld by the Supreme Court.
11. b) A decree of declaration that the defendants 2&3 have no right or authority to claim the status of trustees of the 1^st defendant church.
12. bb) A decree of permanent prohibitory injunction restraining defendant 2 & 3 or their men or agents or anybody claiming under them from bringing any Vicar/Priest for conducting religious ceremonies in 1^st defendant church who are not appointed by the Diocese Metropolitan in accordance with 1934 Constitution.

bbb)   A decree of permanent prohibitory injunction restraining defendants 2 & 3 and their men and agents or anybody claiming under them from causing any obstruction to the 4^th defendant or his successors appointed under 1934 Constitution by the Diocesan Metropolitan from conducting religious ceremonies in the 1^st defendant Church and the cemetery attached thereto.

1. c) Pass a decree of permanent prohibitory injunction restraining defendants 2 and 3 from functioning as trustees of the 1^st defendant Church;
2. d) A decree of mandatory injunction directing the 4^th defendant to call for the immediate pothuyogam of the 1^st defendant church and conduct election of new managing committee including trustees and secretary in accordance 1934 Constitution;
3. e) Grant such other reliefs as may be prayed for from time to time.
4. f) Award the cost of the suit.

VALUATION

 

Valuation for relief (a)                                   Rs.1000.00

Court fee payable under Section 25 (a)

On the Kerala Court Fees Suits

Valuation Act                                               Rs.20.00

Valuation for relief (b)                                   Rs.1000.00

Court fee payable under Section (a)

Of the Kerala Court Fees and Valuation Act Rs.20.00

Valuation for relief (bb)                                 Rs.500.00

Court fee payable under Section 25 of

The Kerala Court fees and Suit Valuation      Rs.20.00

Act

Valuation for relief (bbb)                               Rs.500.00

Court fee payable under Section 2 of

The Kerala Court fees and Suit Valuation      Rs.20.00

Act

Valuation for the relief (c)                    Rs.500.00

Court fee payable under Section 27

Of the Kerala Court Fees and Suit

Valuation Act                                               Rs.10.00

Valuation for the relief (d)                    Rs.500.00

Court fee payable under Section 27 (c)

of the  Kerala  Court Fees and Suit

Valuation Act                                               Rs.10.00

          Total Valuation                                   Rs.4,000.00

          Total Court Fees                                Rs.100.00

          Court fee paid                                     Rs.100.00

Dated the 7^th day of October, 2002.

Plaintiffs:             1. Mathai Varghese

2. T.M Paulose
3. C.E Geevarghese
4. M.C Paulson
5. T.T Paulose
6. T.V Thomas
7. O.V Varghees
8. M.K Paulose
9. Baby Joseph
10. C.C Philip

S.SREEKUMAR,

Advocate

 

We, (1)Mathai Varghese, S/o. Varghese, aged 55, (2) T.M.Paulose, S/o.  Mathai, aged 53, (3)          C.E. Geevarghese, aged 40, S/o, Elias, (4)   M.C. Paulson, aged 38, S/o. Chacko, (5) T.T. Paulose, aged 48, S/o. Thomas, (6) T.V. Thomas,  aged 44, S/o. Varkey, (7) O.V. Varghese, aged 63, S/o. Varghese, (8) M.K. Paulose, aged 45, S/o. Kuriakose,  (9) Baby Joseph, aged 45, S/o, Joseph, (10) C.C. Philip, aged 45, S/o. Cherian, do hereby solemnly affirm and stated that all the facts stated above are true and correct.

1. Mathai Varghese
2. T.M Paulose
3. C.E Geevarghese
4. M.C Paulson
5. T.T Paulose
6. T.V Thomas
7. O.V Varghees
8. M.K Paulose
9. Baby Joseph
10. C.C Philip

 

 

 

ANNEXURE P-9

BEFORE THE HONOURABE DISTRICT COURT, ERNAKULAM

O.S.No.10 of 2003

Mathai Varghese and 9 others   :                            Plaintiffs

v/s

St. Mary’s Jacobite Syrian Church

Varikoli & 3 others                    :                            Defendants

WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 3 IN THE ABOVE CASE UNDER ORDER VII RULE 1 OF THE CODE OF CIVIL PROCEDURE

1. All the averments and allegations contained in the plaint except to the extent of what is expressly admitted hereunder are denied by these defendants. The above suit is not maintainable either in law or on facts.

2. The averments and allegations contained in paragraph 1 of the plaint is not fully correct and hence denied by these defendants. The 1^st defendant Church is not a church of Malankara Orthodox Church as claimed in the plaint.  The contention that the same is a public trust being false and incorrect is denied by these defendants. The plaintiffs are not the parishioners of the church as alleged. Defendants 2 and 3 are elected trustees of the church.

3. The suit as framed under Order I Rule 8 of the Code of Civil Procedure is not maintainable in law. It is not made clear as to whether the plaintiffs  have instituted the suit representing all those persons having the same interest of the defendants are sued in the representative capacity having the same interest. Therefore, the suit is not maintainable.

4. The averments and allegations contained in paragraphs 3, 4, 5 and 6 of the plaint being false and incorrect as denied by these defendants. The true facts regarding the establishment and administration of the 1^st defendant church are as stated below. The church is established in 1928 by the people of the locality for the religious workship as per Jacobite faith and tradition. The church and its parishioners believe and is always loyal to the Patriarch of Antioch. The parishioners believe in the Apostolic succession of St. Peter through patriarch of Antioch. The church and its parishioners ever since its establishment has only accepted and approved the hierarchy of priests ordained or loyal to the patriarch of Antioch. The church has at any point of time deviated from this fundamental faith for which the same is established. The administration of the 1^st defendant church at any point of time was not in accordance with 1934 Malankara Sabha Constitution as alleged. In fact, the parishioners have never adopted 1934 Constitution. The allegation in paragraph 3 of the plaint to the effect that the administration of the church is to be carried out as per the provisions of 1934 Constitution being totally false and incorrect are denied by these defendants. The Honourable Supreme Court has not held in AIR 1995 SC 2001 that the administration of the 1^st defendant church has to be in accordance with the 1934 Constitution. The contentions as contained in paragraph 3 of the plaint regarding the binding nature of 1934 Constitution with respect to the 1^st defendant church being false and incorrect are denied by these defendants.

5. It is submitted that in accordance with the purpose for which the church is establish and also in accordance with the fundamental faith, belief, and tradition the parish assembly in its duly convened meeting on 30.6.2002 adopted the 2002 Constitution of Jacobite Syrian Christian church and the 1^st defendant church is a member of the Jacobite Syrian Christian Association.  The church and its parishioners have the freedom to adopt the 2002 Constitution in view Articles 19(1)(c), 25 and 26 of the Constitution of India. The plaintiffs or 4^th defendant have no right or authority to challenge the decisions and resolutions of the parish assembly dated 30.6.2002.  In fact, the 1^st defendant church was not a party in the suits decided by the Honourable Supreme Court and reported in 1995 SC.2001.  This decision of the Honourable Supreme Court is not binding on the 1^st defendant church.  It is further submitted the observations of the Honourable Supreme Court in 1995 SC.2001 has no relevance to the administration of the church in the light of the adoption of 2002 Constitution by the 1^st defendant church.  The contrary contentions contained in the plaint being false and incorrect are denied by these defendants.

6. The suit is instituted on a mistaken notion that the 1^st defendant church is a parish church coming within Kandanad Diocese and the same is to be administered as per 1934 Constitution. It is submitted that the church and parishioners accepted and approved H.G. Thomas Mar Athanasius since he was a Metropolitan loyal to the patriarch of Antioch in accordance with the fundamental faith of the church. Since he has abandoned the faith and joined hands with the rival faith opposed to the basic fundamental faith of the church the church and its parishioners can never approve him as their Metropolitan. The contentions to the contrary as contained in paragraph 4 of the plaint being false and incorrect are denied by these defendants. The allegation that the 4^th defendant is the Vicar appointed by H.G. Thomas Mar Athanasius as contained in paragraph 4 of the plaint is false and incorrect and hence denied by these defendants. It is submitted that the 4^th defendant is the Vicar appointed by the then Diocesan Metropolitan of the Jacobite Church H.G. Thomas Mar Diocesious. Since the 4^th defendant has deviated from the fundamental faith of the church the present Diocesan Metropolitan of the Jacobite Church H.G. Kuriakose Mar Divascorous as per his Kalpana No.KND 35/2003 removed him from the post and appointed Rev. Fr. Thomas Murikkal as Vicar of the church.

7. It is submitted that defendants 2 and 3 are the trustees elected on 17.1.1999. The annual General Body Meeting of the church on 9.2.2003 elected new trustees and the trustees so elected are P.A. George Padiyil and Paul Varghese Keelppillil.  Since the newly elected trustees are not impleaded in the suit the above suit is bad for non-joinder of necessary parties.

8. It is further submitted that the Annual General Body dated 9.2.2003 apart from other decisions and resolutions again also resolved to approve and adopt the 2002 Constitution of Jacobite Syrian Christian Church. It is respectfully submitted that the 1^st defendant church never participated in the meeting and election held on 20.3.2002. In fact, the proceedings of the meeting held on 20.3.2002 and the decision thereon by the Honourable Supreme Court is not binding on the 1^st defendant church.  The contentions on the contrary as contained in paragraph 4 of the plaint being false and incorrect are denied by these defendants. Accordingly, it is submitted that the decision of the Managing  Committee of Malankara Orthodox Church held on 10.8.2002 and the decisions taken by the same are not binding on the 1^st defendant church for the reason that the 1^st defendant church is a church of Jacobite Syrian Christians governed as per the 2002 Constitution. H.G. Thomas Mar Athanasius has no right or authority over the 1^st defendant church as claimed in paragraph 4 of the plaint. Accordingly, the Kalpana No.56/2002 dated 17.8.2002 referred to in the plaint appointing again 4^th defendant as Vicar of the church has no legal effect. In fact, 4^th defendant was also party to the adoption of 2002 constitution by the parish assembly. The 4^th defendant accepted and approved the fact that the 1^st defendant church is a church belonging to Jacobite Syrian Christian Church even during March 2003. Thereafter, since he has abandoned and abdicated the faith he cannot continue as Vicar of the church. Accordingly, the Diocesan Metropolitan on the basis of the request made by the parishioners appointed Rev. Fr. Thomas Mureekal as Vicar of the church on 5.5.2003. Therefore, it is submitted that the 4^th defendant is not the Vicar of the church as claimed in the plaint.

9. It is submitted that the present Vicar Rev. Fr. Thomas Mureekkal is a necessary party to the suit. Since the present Vicar is also not impleaded in the suit is bad for non-joinder of necessary parties. In fact, in pursuance to Kalpana dated 5.5.2003 Rev. Fr. Thomas Mureekkal took charge as Vicar of the church and discharged the duties as Vicar of the church. Even now, he is continuing as Vicar of the church.

10. In fact the membership of the church is open to only those persons who makes a solemn affirmation to the effect that he shall be obedient and loyal to Holy Throne of Antioch and the Metropolitan ordained by the Patriach seated on the Holy Throne and shall be loyal to the Jacobite Syrian Christian Church and its fundamental faith and tradition. The above said solemn affirmation is incorporated in the Edavaka Register of church. As such the claim of the plaintiffs that the church is one belonging to the Orthodox Church and is to be governed by 1934 constitution is no longer valid. In fact, the church or the parishioners have no right or authority to deviate from the fundamental faith of Jacobite Syrian Community and have no right or authority to approve or adopt the 1934 constitution which is opposed to the fundamental faith and tradition of Jacobite Syrian Community.

11. It is submitted that defendants 2 and 3 were elected as trustees by the Pothuyogam dated 17.1.1999.  Thereafter, the Pothuyogam dated 9.2.2003 elected new trustees and committee members. It is again submitted that 1934 constitution is not binding and applicable with respect to the administration of 1^st defendant church. The contentions regarding the applicability of 1934 Constitution with respect to the administration of the church as contained in paragraph 5 of the plaint being false and incorrect and denied by these defendants.

12. It is respectfully submitted that allegations alleged against defendants 2 and 3 as contained in paragraph 6 of the plaint being false and incorrect are denied by these defendants. The Pothuyogam held subsequently to the election of defendants 2 and 3 have approved and passed all the actions taken by defendants 2 and 3 and the committee. Moreover it is submitted that the pothuyogam held on 9.2.2003 passed the accounts and defendants 2 and 34 handed over charge to the newly elected trustees. The allegations contained in paragraphs 5 and 6 of the plaint are vogue and there is no specific allegation of misappropriation of funds by defendants 2 and 3.

13. In fact since new trustees were elected and since they assumed charge as per the election held on 9.2.2003 there is no cause of action for the above suit. As cause of action alleged in the plaint now is not existing the suit is liable to be dismissed.

14. It is respectfully submitted that for the reasons stated in the written statement the relief of declaration that the 1^st defendant church is to be administered as per 1934 constitution can never be allowed. The relief of declaration that defendants 2 and 3 have no right or authority to claim the statue of trustees of the 1^st defendant church and the consequential injunction from restraining them from functioning have now become infructious. In Trustees and Managing Committee were elected by the pothuyogam dated 9.2.2003. The election of the church cannot be conducted in accordance with 1934 constitution since the same is not binding on the church. The 4^th defendant now is not the Vicar of the church. Therefore, relief of mandatory injunction as claimed in the plaint cannot be allowed.

          It is therefore, humbly prayed that this Honourable Court may be pleased to dismiss the suit with costs of these defendants.

          Dated this the 7^th  day of October 2003.

                   Defendants: St. Mary’s Jacobite Syrian Church,

     Varikoli, represented by its former       trustees defendant No.2 Binoy      Varghese and defendant No.3 C.A.      Varghese.

          K.J. Kuriachan,

          Counsel for the defendants 1 to 3.

VERIFICATION

 

          We, Binoy Varghese and C.A. Varghese former trustees of 1^st defendant church and defendants 2 and 3 in the suit, do hereby solemnly affirm and verify that the averments in the written statement are true and correct to the best of our knowledge, belief and information.

          Defendants: St. Mary’s Jacobite Syrian Church,

     Varikoli, represented by its former       trustees defendant No.2 Binoy      Varghese and defendant No.3 C.A.      Varghese.

//True Copy//

 

 

ANNEXURE P-10

ENGLISH TRANSLATION OF RELEVANT PORTIONS RELATING TO FIRST DEFENDANT CHURCH IN EXHIBIT B-10

 

MINUTES of the meeting held under the Presidentship of the Ernakulam District Collector, on 28.03.04 relating to disputes in Pankode, Varicoli Churches.

          -To discuss problems arising out of Disputes arising out of conduct of prayers at a Chapel put up near Pankode Church by the Orthodox Faction ,discussions were held several times under the leadership of the R.D.O, District Collector, Muvattupuzha D,Y.S.P. The District authorities, On being convinced that a common decision is needed regarding the issues in both Pankode and Varicoli Churches ,meeting was held at 9 AM on 26.03.2014 in the office of the District Collector in the presence of the following persons, viz;

1. Gyanesh Kumar, District Collector,
2. B.Shamsuddin, S.P.Rural,
3. K.A.Omanakuttan, DYSP Muvattupuzha
4. P.K.Vijayappan, CI Puthencruz
5. A.M.Johnson, SI,Puthencruz
6. Dr Thomas Mar Athanasius[Kandanad                                       Diocese Bishop, Orthodox Faction],
7. Fr Kuriakose Chelattu  ,Orthodox faction,
8.      Fr Elias Cherukattu,                  do do.
9. Shri Paulose                             do.  Do
10. Mathews Mar Evanios Metropolitan [Kandanad

          Diocese Metropolitan-Patriarchal faction],

11. Fr Adai Jacob Corepiscopa-do do,
12. Shri Thambu George Thukalan-Sabha                                       Secretary,
13. Shri Paul-Trustee of Varicoli Church.

           After detailed discussions, the following decisions were taken by all present together, to maintain law and order in the concerned Churches, viz;

           1] In the Pankode Church, the Orthodox Faction will have the right to conduct religious services in the leadership of their Vicar ,in the newly constructed Church,

            2] In the main Pankode Church ,religious Services shall be conducted in the leadership of the Vicar of Patriarch Faction,

             3] Orthodox faction will be given permission to put up new cemetery in accordance with law,

             4] In the Varicoli Church both the Orthodox and Patriarch faction are allowed to conduct religious services under the leadership of their respective Vicars on all prayer days equally and the timings for the same are to be fixed by the Muvattupuzha R.D.O and the DYSP after discussions, equal consideration

              5] Vicars of both factions shall be given equal consideration in the Church and similar Rooms shall be allotted to them,

         6] The offerings and contributions obtained during the turns allotted to the respective groups shall be taken by the respective groups,

        7] Apart from the Vicars of the respective factions, no metropolitans of either group shall conduct of religious services in the Church,

          8] Both factions will not have the right to use the office room or take administrative decisions till end of May,2004;

          9] Articles of the Church shall be used by both factions equally and the RDO as well as the DYSP shall assure the same,

          10] Implementation of the above decisions will be subject to any decisions that may be taken in cases that may be pending in any Courts;

         11] The above decisions are taken by both factions in a friendly atmosphere and as such both factions have agreed for its implementation in its spirit.

          Muvattupuzha RDO and DYSP shall carefully supervise and see that the above decisions are properly obeyed and  implemented  without any disturbance.

                       Meeting concluded at 11.30

                                                  [sd] for District Collector

[This is true English Translation of Exhibit B-10 of O.S No 10 of 2003 of the First Additional District Court, Ernakulam]

ANNEXURE P-11

English Translation Of Exhibit B11 in OS No 10 of 2003 of First Additional District Court, Ernakulam.

            Minutes of meeting held at Muvattupuzha Revenue Divisional Office at 10 A.M on 29.03.2004,with Muvattupuzha Revenue Divisional Officer, and Muvattupuzha Deputy Police Superintendent, for the purpose of fixing the timings for conduct of religious Services in Varicoli Church in pursuance to decision taken in the meeting  presided Over by the District Collector on 26.3.2004.

Persons who participated in the Meeting.

1. Fr V.K.Mathai,Vadakkinedath[Orthodox],
2. Fr C.M.Kuriakose
3. Fr Elias Cherukad [Orthodox]
4. Shri M.C.Paulose [Orthodox]
5. Shri Saju Kuriakose [ Patriarch],
6. Shri Paul Varghese [ Patriarch]
7. Shri P.M.George,Padiyil[Patriarch],
8. Shri Ajesh George,Padiyil[Patriarch]

  Whereas, both the Orthodox Faction and the Patriarch faction are allowed to conduct religious Services under the leadership of their respective Vicars on all prayer days on equal timings, and whereas, it is provided in the minutes of the meeting held on 26.3.04,that the timings are  to be fixed by the Muvattupuzha Revenue Officer, Muvattupuzha D.Y.S.P, after discussion, this meeting is convened and only Revenue Divisional Officer informed that the said issue alone will be decided in this meeting;

           If the faithful members of both factions are not allowed to conduct prayers in the presence of their respective Vicars on all days when prayers are conducted ,it may result in law and order problems;

          If religious services are permitted on alternate weeks ,one of the faction will lose the opportunity to conduct religious services for one week ,and it may result in law and order problems. At the same, when both factions conduct religious services on timings given to them on the same day, there is no possibility for lengthy services. When the law and order problems in Varicoli Church and its precincts are taken into account, we are convinced that if both factions are allowed to conduct religious services on the same day and a gap of half an hour is allowed between both services , that there will not be any law and order problems , the following timing arragements are made to allow both factions to conduct religious services equally in the Church.

1. SUNDAY.

              Sunday from 6 AM to 8 AM-  Orthodox Faction

                          8.30 AM to 10.30AM  – Patriarch Faction

The above timings will be shared between both factions on alternate weeks. On Sundays after 11 AM, both factions can conduct functions like marriage etc in the presence of their respective Vicars. If the said functions are coming up for both factions, timing arrangement shall be made by previous notice.

2. HOSANA SUNDAY

                    Morning 6 to 10.30-Orthodox faction

                   11.00 to 2.30 PM-  Patriarch faction

3. MONDY THURSDAY

                EVENING 9 TO MORNING 1.30 AM-Patriarch faction

                 Morning 2 to 6.30   – Orthodox Faction

4. Good Friday- Patriarch Faction
5. Good Saturday Patriarch Faction
6. Easter Patriarch Faction

            Further, the following issues that came up during discussions were agreed to be left to be decided by the District Collector.

1. Religious services connected with burial of the dead shall be conducted through the Vicar of the faction to which the deceased belonged;
2. Assistants for conduct of holy services can be selected by the concerned Vicars from their respective factions;
3. Electricity charges to the church and kurisu pally[ chapel with cross] shall be equally shared by both factions,
4. Salary of the Security Guard of the Church shall be equally shared by both factions,
5. Copies of Birth/Baptism/Marriage/Death Registers shall be kept by both factions and the original shall be kept in the Church;

               All these suggestions and decisions will be subject to the decision by the District Collector.

                                                   [sd]  Revenue Divisional Officer

              [This is the true English translation of Exhibit B-11 In O.S No 10 of 2003 of  the First Additional District Court,Ernakulam.]

 

 

.

 

 

 

 

ANNEXURE P-12

BEFORE THE HONOURABLE DISTRICT COURT AT ERNAKULAM

O.S. No.10 /2003

Mathai Varghese and others                         :         Plaintiffs

v/s

St. Mary’s Church, Varikkoli & others           :         Defendants

ADDITIONAL WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 3 UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE

 

1. All the averments and allegations contained in the amended plaint except to the extent of what is expressly admitted hereunder are denied by these defendants. The above suit as well as the amended suit is not maintainable either in law or on facts.

2. Averments and allegations contained in paragraph 6A of the amended plaint being false and incorrect are denied by these defendants. It is submitted that 4^th defendant is appointed by the Metropolitan who owed allegiance to the Patriarch of Antioch and therefore the entire parishioners accepted him as their Metropolitan. The 4^th defendant was also a Priest who accepted the Supreme Spiritual Supremacy of the Patriarch of Antioch. The allegation that 4^th defendant is a Vicar of the 1^st defendant church appointed by the Diocesan Metropolitan in accordance with 1934 Constitution being false and incorrect are denied by these defendants. The further allegation that only a Vicar / Priest appointed under the 1934 Constitution by the Diocesian Metropolitan alone can conduct religious services in the church being totally false and incorrect are denied by these defendants. The Metropolitan who appointed the 1^st defendant and the 1^st defendant has departed from the faith for which the church is established and therefore the contentions contained in paragraph 6A are totally false and incorrect. The entire contention in paragraph 6A of the plaint is incorporated on the mistaken notion that the 1^st defendant church is to be administrated under 1934 Malankara Sabha Constitution. The said contention of the plaint is not correct. In fact, the plaintiffs are not legally entitled to incorporate contentions in favour of a defendant in the suit. If 4^th defendant is having a case as contended in paragraph 6A, his remedy is to file a separate suit to establish his right.

3. The added relief (BB) incorporated by way of amendment after closing the entire evidence in the case is really misconceived. It is submitted that at present these defendants have no control over the administration of the 1^st defendant church. The plaintiffs are aware of the fact that the administration of the church vest with the trustees and Managing Committee elected every year and they are also aware of the fact that defendants 2 and 3 are not the present trustees of the 1^st defendant church.  Therefore, the plaintiffs are not entitled for the decree as prayed for in relief (BB) without impleading the present trustees and Vicar. Plaintiffs as per law can seek a relief with respect to a parish church only by impleading the trustees and the Vicar. Plaintiffs have not chosen to implead the trustees and Vicar who are officiating in the church at the time of filing the amendment application. Therefore, it is submitted that the plaintiffs are not entitled for relief (BB) sought for in the amended plaint.

4. It is also submitted that relief (BBB) sought for in the amended plaint also cannot be granted for the reason that these reliefs are originally sought for against defendants 2 and 3 who have now no control over the administration of the 1^st defendant church. This relief just like relief (BB) is sought behind the back of the entire parishioners without impleading the proper persons who are now administering the church. It is further submitted that the relief (BBB) is a relief in favour of the 4^th defendant and his successors. The plaintiffs are not legally entitled to seek the relief in favour of the defendants in the suit.

5. It is submitted that the cause of action for the institution of the suit has not be amended and therefore the cause of action still remains the original cause of action alleged in the plaint. At the same time, reliefs (BB) and (BBB) are added to the plaint about 6 years after the institution of the suit. It is also submitted that the amendment is sought for after closing the entire evidence in the case. The amendment incorporated therefore is barred by law of limitation. It is also submitted that the amendment sought for and the new relief sought for cannot be entertained as the same is incorporated after a long delay in this regard. Therefore it is submitted that there is laches also on the part of the plaintiffs.

6. Without prejudice to the contention contained in the written statement it is submitted that if this Honourable Court holds that the contentions of the plaintiffs as to the applicability of 1934 Constitution to parish churches is correct, then these defendant submit that the above suit is not maintainable on the principle of resjudicata. It is therefore submitted that the above suit is not maintainable as the same is hit by resjudicata on the basis of the pleadings contained in the plaint.

Therefore it is submitted that the above suit may be dismissed with costs of these defendants.

Dated this the 26^th of May 2008.

                                                          K.J. Kuriachan,

                                      Counsel for Defendants 1 to 3.

Defendants: [1] St. Mary’s Jacobite Syrian Church,

Varikoli, represented by its former

trustees defendant No.2 Binoy Varghese

and defendant No.3 C.A. Varghese.

                                 [2] Binoy Varghese

                                 [3] C.A. Varghese

VERIFICATION

          We, defendants 1 to 3 in the above suit, do hereby solemnly affirm and state that the averments contained in paragraphs 1 to 6 in the additional written statement are true and correct and we have verified the written statement at the office of our counsel at Ernakulam on this the 26^th day of May 2008.

Defendants: [1] St. Mary’s Jacobite Syrian Church,

Varikoli, represented by its former

trustees defendant No.2 Binoy Varghese

and defendant No.3 C.A. Varghese.

                                 [2] Binoy Varghese

                                 [3] C.A. Varghese

 

 

ANNEXURE P-13

BEFORE THE HON’BLE HIGH COURT OF KER..ALA AT W.P (C) No. 29572  2008

Petitioners:-

1. Fr. Dr.Johns Abraham Konat,

          Priest Trustee,

          Malankara Orthodox Syrian Church,

          Konattu, Pampakuda P,O.

          Ernakulam Dist.

2. Dr.George Joseph,

          Association Secretary,

          Catholicate Office, Devalokam, Kottayam – 686 038.

Respondents: –

1. Union of India rep. by the Secretary,

Ministry of Home Affairs,

New Delhi.

2. State of Kerala rep. by Chief Secretary,

 Govt. Secretariat,

Trivandrum.

3. The Director General of Police,

 Police Head Quarters,

Trivandrum.

4. The District collector,

 Ernakulam.

5. The Commissioner of Police,

Cochin City,

Ernakulam.

6. The Jacobaya Suriyani ChristianiSabha,

Patriarch Centre, Puthencruz, rep. by its Secretary.

7. lgnatious Zaka-I,

Patriarch Centre, Puthenqruz.       .

A: Address for service of all notices and processes on the Petitioners is that of their Counsel M/s. George Thomas Mevada,  Raynold  Fernandez., Manu Kuruvilla, Advocates, S. R M. Road, Cochin —18 .

B: Address of service of all notices and processes on the respondents are the one given above.

WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

1. The Petitioners are parishioners of Malankara Orthodox Syrian Church. The 1st petitioner is the priest trustee and 2nd petitioner is the Secretary of Malankara Orthodox Syrian Church having its head office at Devalokam, Kottayam. The 1st petitioner were elected by the Malankara Orthodox Syrian Christian Association and the 2nd petitioner by the Association managing Committee in accordance with 1934 Constitution which governs the management of the Church.

2. St. Thomas visited India in A.D. 52 and established 7 churches in South India commonly called Malankara Orthodox Syrian Church. As time passed, the Church had undergone various transformations and had established churches throughout India. Since 1879 dispute arose and two factions of differing opinions came into existence in the, Church. One faction claimed temporal and administrative control over the churches on the Patriarch of Antioch commonly called the “Patriarch faction”. On the other hand, the other group owed allegiance to the Catholicos of the East as the spiritual and temporal head of the Malankara churches commonly called the “Orthodox faction”. There were various suits starting from 1934 for declaring the supremacy of the patriarch on the one hand and the Catholicos on the other hand. Ultimately, the Supreme Court in “P.M.A. Metropolitan Vs. Moran Mar Marthoma “(AIR 1995 S.C. 2001) settled the dispute by holding that the 1934 Constitution is binding upon all the churches of the Malankara and also held that Patriarch of Antioch has no temporal powers over the churches and that spiritual powers of Patriarch of Antioch can be exercised by the Catholicose in accordance with the 1934 Constitution. The Supreme Court further held in para 146 as follows:

          “146. We hope that unity and integrity of .Malankara       church will be maintained and continued by the above          arrangement which is wholly consistent with and           indeed in furtherance of the objectives under lying the    Mulamthuruthy Synod Resolution. Elections to the           Malankara Association shall have to be held           periodically so as to keep its representative character     alive and effective”.

3. After the decision of the Supreme Court, election to the Malankara Association and the Managing Committee were held in 2002 with Justice Malimath as the observer appointed by the Supreme Court. In the election, the Malankara Association Managing Committee was constituted and the office of the Catholicos Baselious Marthomas Mathew-II as Malankara Metropolitan of the Malankara Church was reconfirmed.

4. Being dissatisfied with the elections, the Patriarch Group formed a separate association called “Jacobaya Suriyani Christiani Association in 2002, the 6^th respondent herein, declaring the Patriarch of Antioch as their spiritual and temporal head. Election to Malankara Association is being held periodically in accordance with 1934 Constitution. After the retirement of the then Catholicose cum Malankara Metropolitan; the Catholicose Designate Baselious Marthoma Didimos-I was consecrated as Catholicos and Malankara Metropolitan.

5. Tension mounts in Malankara churches despite the verdict of the Apex Court and violation of Law and Order is the rule among the 61h respondent to enforce its faiths. Various attempts by the govt. to settle the disputes amicably where in vain.

6. There were repeated incidents of indiscriminate and wanton acts of mischief by the 6th respondent. Most of the Malanakara churches are either in the custody of Court Receiver or Executive Magistrate even for burial of the dead, the members of the 6^th respondent create pandemonium.

7. While so, news items appeared in the daily news papers and visual media declaring the visit of the 7^th respondent who claims to be the Patriarch of Antioch, lgnatious Zaka —I who is a foreigner to be brought to India by the 6^th respondent. One such news item that appeared in the Indian Express daily dated 17-9-2004 is produced herewith and marked as Ext.P1. From the news papers and the visual media it can be gathered that the 7^th respondent, who is a foreigner, visiting India on a tourist visa and for the purpose of treatment.  Being a foreigner the visit of the 7^th respondent is governed by the provisions of the Foreigners Act 1946” and the Visa Manual.

8. The visit of the 7th respondent Was for religious purposes which Includes presiding over Mulamthuruthy Association, consecration of Holy Mooron, to conduct functions and prayers at Marthoma Cheriapally, Kothamangalam and St.Mary’s Church, Mannarkad and to attend a religious public function at Marine Drive grounds Ernakulam.
9. Being a foreigner , the patriarch is necessarily bound by the foreigners Act 1946. Central Government has issued notification M.H.A. No. 25022/82/96 —F.1 dated 28-5-1998 which reads as follows:

          “When any foreigner coming on Tourist Visa, is found    indulging in religious activities/Tabligh work, actions      should be taken against him under the Foreigners Act           and he should be deported to the country of his origin    under the powers already delegated to the State          Governments. A report should also be sent to M.H.A,      so that such persons are put on prior reference category, for the purpose of grant of Visa to them in future”

10. Section 14 of the Foreigners Act is the penal provisions for contravention of the provisions of the Act. The Visa Manual also classifies various visas and a person traveling in a particular visa shall be governed by that visa. lgnatious Zaka-I is coming in a tourist visa for communal or religious activities.
11. On the last visit of the 7^th respondent in the year 2004 some of the parishioners of the Malankara Church filed a writ petition as W.P.(C).No.27372 of 2004 before the High Court of Kerala seeking for a direction to the Union of India, State of Kerala and other officials to see that Ignatious Zaka-I does not violate the visa conditions and Foreigners Act, and orders issued there under.

12. The High Court by the judgment dated 20-09-2004 disposed of the writ petition with the following observations:-

          “It is submitted that he has obtained only a tourist visa.   Therefore, he has to confine his activities in         accordance with the provisions contained in the Visa           Manual. Whether there is violation of the provisions        contained in the Foreigners Act or the provisions of the Visa Manual, is a matter for the Government to           consider and do the needful”. A true copy of the    judgment in W.P. (C).No. 27372 of 2004 dated 20-09-         2004 is produced and marked as Ext.P2.

13. It is sad to say that lgntious Zak-1 not only violated the visa conditions and Foreigners Act and orders issued there under criminally trespassed in to various churches of Malankara Orthodox Syrian Church with police protection conducted Holy Qurbana and participated in public meetings. This was published in all medias and visual medias true copies of which are produced herewith and marked as Ext.P3 series. No steps were taken to prevent violation of law but protectors of law permitted perpetuation of violation of law.

14. From the news papers it is seen that Ignatious Zaka is visiting Kerala from 17th October 2008 to 23rd October, 2008 on a tourist visa. But his programmes include public function at Marine Drive, Ernakulam conduct of Holy Qurbana in various churches owned by Malankara Church and other religious functions.

15. As reported in the media, the object of the visit of the 7^th respondent Patriarch with a tourist Visa is for indulging in religious activities which is barred       under the notification dated 28-5-1998 and under Visa Manual Respondents 1to 5 are duty bound to prevent religious activities of the patriarch who is coming to Kerala on the tourist visa. But respondents 1 to 5 fail to take any effective steps but to foster the religious activities of the 7^th respondent patriarch. The petitioners are interested in the implementation of Law and prevention of the misuse of the law. The 1st petitioner submitted a representation dated 29/09/2008 before the respondents 1 to 4 complaining about the illegalities committed by the 7th respondent and prevent further breach during his visit on 17-10-2008, a true copy of which is produced and marked as Ext.P4. Even though respondent 1 to 4 received Ext.P4 no steps have been taken as sought for

In these circumstances, the petitioners have no other alternate and efficacious remedy other than to invoke the extra ordinary jurisdiction of this Hon’ble court under Article 226 of the Constitution for redressal of their grievances on the following among other

GROUNDS

1. A) The Foreigners Act 1946 has been enacted to control the entry of Foreigners in to India.
2. B) Section 2(a) of the Act defines a foreigner as a person who is not a citizen of India. Section 3 of the Act empowers the 1st respondent to make orders for matters specified therein. Section 11 of the Act empowers the authorities to execute such powers for securing compliance or for preventing or rectifying any breach of the provisions of the Act or Order. Section 11 reads as follows:

          “11. Power to give effect to orders, directions etc. —       (1) Any authority empowered by or under or in        pursuance of the provisions of this Act to give any           direction or to exercise any other power, may , in    addition to any other action expressly provided for in      the Act , take, or cause to be taken such steps and           use, or cause to be used, such force as may, in its          opinion, be reasonably necessarily for securing       compliance with such direction or for preventing or           rectifying any breach thereof for  the effective exercise   of such power, as the case may be.

          (2) Any police officer may take such steps and use         such force as may, in  his opinion, be reasonable for   securing compliance with any order made or direction           given under or in pursuance of the provisions of this       Act or for preventing or rectifying any breach of such        order or direction.

          (3) The power conferred by this section shall be     deemed to confer upon any person acting in exercise     thereof a right of access to any land or property what      so ever”.

1. C) The Central Govt. has published a Visa manual which governs the Visas issued to foreigners. There are various classes of Visas. By virtue of the provisions of the Visa manual a foreigner coming in to India on a Tourist Visa can only visit as a tourist arid cannot indulge in any other acts. Now the attempt of the 7th respondent. Patriarch in coming to India on a tourist Visa is to indulge in religious and communal activities which is a threat to national security and is to be prevented.

1. D) Section 14 of the Act provides for penalty for contravention of the provisions of the Act. In exercise of the powers, the 1st respondent has issued notification No. 25022/82/96-F.1 dated 28-5-1998 directing the authorities to deport a foreigner coming on tourist visa and indulging in religious activities. Admittedly, as seen from news papers and in the news media, the 7th respondent is visiting Kerala for religious activities which are prohibited under the Act.

1. E) The respondents 1 to 5 are duty bound to see that the 7th respondent does not .indulge in religious activities in contravention with the provisions of the Act.

1. F) Any violation of the provisions of the foreigners Act and indulgence in religious activities will necessarily disrupt the communal harmony and will ignite the prevailing tension in the Malankara Church.

1. G) During the visit in September 2004 of 7^th respondent in Kerala. This Hon’ble Court in Ext. P2 judgment expressed the hope that respondents 1 to 5 will implement the law in its strict sense in connection with the visit of 7^th Unfortunately the directions in Ext.P2 judgment went  unneeded. It is seen from Ext.P3 series paper reports that 7^th  respondent had in fact indulged in religious activities under cover of tourist visa and thereby flouted all laws in that count.
2. H) This time also the same thing will be repeated under cover of tourist visa. The respondents 1 to 5 are only giving aid and protection to respondents 6 and 7 to perpetuate their illegal act.

Therefore it is humbly prayed that this Hon’ble Court may be pleased to :-

(i)      Issue writ of mandamus direction compelling the 7th      respondent , Ignatious Zaka-I, does not indulge in   religious activities in viol orders issued there under.

 (ii)     Issue such other writ order or direction as may be necessary in the interest of justice.

Dated this the 6th day of October 2008.

                                                Petitioners.                   1.      Sd/-

2. Sd/-

Sd/-

GEORGE THOMAS MEVADA

Advocate

INTERIM RELIEF

For the reasons stated in the Writ petition and affidavit, accompanying the same it is humbly prayed that this Hon’bIe court may be pleased to direct the respondents 1 to 5 to ensure that the 7th repondent, Ignatious Zaka-I, does not indulge in religious activities in violation of the Foreigners Act issued there under during his visit from 17th October, 2008 till 23rd in Kerala.

Dated this the 6th day of-October 20:i

George Thomas Mevada

Counsel for petitioners

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

W.P. (C) No.       2008

Fr. Dr. Johns Abraham Konat & other    – Petitioners

Union Of India & others                           – Respondents

AFFIDAVIT

I, Fr. Dr. Johns Abraham, S/o Fr. Abraham aged 52, Priest Tustee, Malankara Orthodox Syrian Church, Konattu, Pampakuda P.O. Ernakulam Dist. do hereby solemnly affirm and state as follows:

1. I am theist petitioner in the writ petition. I am conversant with the facts of the case. I am sweering    this affidavit on behalf of other petitioner as well.

2. All the facts stated in the writ petition are true to the best of our knowledge, information and belief; and the     legal grounds are taken on the advice of our consel           and are sufficient to render a decision in our favour.        We have not filed earlier petitions seeking similar and         identical relief in the same subject matter.

All the facts stated above are true.

                             Dated this the 6^th  day of October, 2008.

Sd/-

Deponent

Solemnly affirmed and signed before me by the deponent who is – personally known to me on the  6^th  day of October, 2008 at my office at Ernakulam.

Sd/-

GEORGE THOMAS MEVADA

          Advocate

//True Copy//

ANNEXURE P-14

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.N. RAVINDRAN

WEDNESDAY, THE 15^TH OCTOBER 2008/23^RD ASWINA 1930

W.P.[C] No.29572 of 2008[U]

 

PETITIONERS:

1. FR. DR. JOHNS ABRAHAM KONAT, PRIEST TRUSTEE,

          MALANKARA ORTHODOX SYRIAN CHURCH,

          KONATTU, PAMPAKUDA. P.O., ERNAKULAM.

2. DR. GEORGE JOSEPH, ASSOCIATION SECRETARY,

          CATHOLICATE OFFICE, DEVALOKAM,

           KOTTAYAM-686038.

                   BY ADV. SRI. GEORGE THOMAS [MEVADA]

 

RESPONDENTS:

1. UNION OF INDIA, REP. BY THE SECRETARY,

          MINISTRY OF HOME AFFAIRS, NEW DELHI.

2. STATE OF KERALA, REP. BY CHIEF SECRETARY,

          GOVT. SECRETARIAT, TRIVANDRUM.

3. THE DIRECTOR GENERAL OF POLICE,

POLICE HEADQUARTERS, TRIVANDRUM.

4. THE DISTRICT COLLECTOR, ERNAKULAM.

5. THE COMMISSIONER OF POLICE,

COCHIN CITY, ERNAKULAM.

6. THE JACOBAYA SURIYANI CHRISTIANI SABHA, PATRIARCH CENTRE, PUTHENCRUZ,

REP. BY ITS SECRETARY.

7. IGNATIOUS ZAKA-I, PATRIARCH CENTRE, PUTHENCRUZ.

WP[C] 29572/08.

R1 BY SRI. P. PARAMESWARAN NAIR, ASSISTANT SOLICITOR GENERAL OF INDIA.

R2 TO R5 BY GOVT. PLEADER SMT. ANU SIVARAMAN.

THIS WRIT PETITION [CIVIL] HAVING COME UP FOR ADMISSION ON 15.10.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

P.N. Ravindran, J.

======================

W.P.[C] No.29572 of 2008

======================

Dated this the 15^th day of October, 2008.

JUDGMENT

 

          The petitioners are members and office bearers of the Malankara Orthodox Syrian Church. They complain that the seventh respondent, the Patriarch of Antioch and the spiritual head of the Jacobite Syrian Christian Church, who is scheduled to visit the State of Kerala as a State Guest from 17^th October, 2008 to 23^rd October, 2008 on a tourist visa, will participate in various public functions including functions of a religious nature. The petitioners contend that under the provisions of the Foreigners Act, 1946, the Foreigners Order, 1948, the Visa Manual and the instructions issued by the Government of India, the seventh respondent who has been granted a tourist visa cannot indulge in religious activities. The petitioners have in this writ petition prayed for the following relief:

“(i) issue writ of mandamus or other appropriate writ order direction compelling the respondents 1 to 5 to ensure that the 7^th respondent, Ignatious Zaka-I, does not indulge in religious activities in violation of the Foreigners Act, 1946 and orders issued thereunder.”

2. Sri. George Thomas Mevada, the learned counsel appearing for the petitioners submits that the Ministry of Home Affairs of the Government of India have in Circular No.25022/144/97.F-1 dated 12.6.1997 issued to all Indian Missions/Posts abroad clarified that under the provisions of para 31 of the Visa Manual, tourist visas can be granted only to foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing and casual visits to friends and relatives. The learned counsel appearing for the petitioners further submits relying on letter No.25022/82/96-F.I dated 10.4.1996 issued by the Ministry of Home Affairs, Government of India to the Home Secretaries of all State Governments and Union Territory Administration that a foreigner on a tourist visa cannot indulge in religious activities.

3. I have heard Sri. P. Parameswaran Nair, the learned Assistant Solicitor General of India as well. The learned Assistant Solicitor General of India made available to me a copy of the Circular dated 12.6.1997 issued by the Ministry of Home Affairs, Government of India to all Indian Missions/Posts abroad and also a copy of the letter dated 10.4.1996 issued by the Ministry of Home Affairs, Government of India to the Home Secretaries of all State Governments and Union Territory Administration, which read thus:

          “Confidential

          F.No.25022/144/97.F-1 dated 12.6.1997:

          Government of India/Bharat Sarker

          Ministry of Home Affairs/Grih Manatralaya

                                                New Delhi 110003, dated 12.6.97

To

          All Indian Missions/Posts Abroad

          Subject: Validity of Short-term Tourist Visas.

          Sir,

          In accordance with the provisions of Para 31 of the Visa Manual, tourist visas can be granted only to foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing, casual visits to friends and relatives. As per the existing instructions, the following two categories of short-term visas are granted to the foreigners:-

          (i)  Three months tourist visa counts from date of entry.

                   and

          (ii) Six months tourist visa counts from date of issue.

2. The matter regarding having two different categories of short-term visas has been examined and it has been decided that three months tourist visa should be done away with. It is accordingly requested that henceforth, only six months tourist visa may be granted to the foreigners who have no residence or occupation in India and whose sole objective in visiting India is recreation, sight seeing, casual visits to friends and relatives. The six months tourist visa shall be non-exendable and non-convertible which fact should be conspicuously mentioned on the visa itself. This visa shall count from date of issue. The above instructions shall come into force with immediate effect.

3. Hindi version will follow.

Yours faithfully

Sd/-

[M.P. SAJNANI]

Deputy Secretary to the Govt. of India”

“No.25022/82/96-F.I

GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

*****

10.4.1996

To

          Home Secretaries of all the State Governments and

          U.T. Administration.

          “It has come to notice that some foreigners, who enter India on the strength of tourist visas, indulge in religious/Tabligh work against the Visa rules/regulations and thus render themselves to action under the Foreigners Act, 1946. State Governments are required to keep a watch on the activities of such foreigners and as and when any foreigner coming on tourist visa is found indulging himself in religious activities/Tabligh work, action should be taken against him under the Foreigners Act and he should be deported to the country of his origin under the powers already delegated to the State Govts. A report should also be sent to this Ministry so that such persons are put on ‘Prior Reference Category’ for the purpose of grant of visa to them in future.

                                                Sd/-   [SUBHASH MEHTANI]

Under Secretary to the Govt. of India.”

4. The learned Assistant Solicitor General of India submitted with reference to the said circular and letter that a foreigner on a tourist visa cannot indulge himself in religious/Tabligh activities. The learned Assistant Solicitor General of India also submitted that if the terms on which a foreigner has been issued tourist visa are violated it is for the State Government concerned to monitor the same and take proper action.

5. This writ petition proceeds on the basis that as members of the Malankara Orthodox Syrian Church, the petitioners have a right to prevent the seventh respondent from indulging in religious activities during the period of his stay in the State of Kerala from 17.10.2008 to 23.10.2008. The petitioners are members of the Orthodox faction of the Malankara Orthodox Syrian Church which does not recognize the Patriarch of Antioch as their temporal or spiritual head. The petitioners rely on the decision of the Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma – A.I.R. 1995 S.C. 2001 to contend that Patriarch of Antioch has no temporal powers over the Malankara Orthodox Syrian Church and that the spiritual powers of the Patriarch of Antioch can be exercised by the Catholicose in accordance with the 1934 Constitution. The petitioners contend that the seventh respondent had participated in the programmes listed out in Ext.P1 news report that appeared in the Indian Express daily dated 17.9.2004 during his last visit, violating the visa norms. It is seen from Ext.P2 judgment that some other persons had moved this court by filing W.P.[C] No.27372 of 2004 on that occasion to ensure that the seventh respondent, the Patriarch of Antioch does not violate the Foreigners Act, 1946 and the Foreigners Order 1948. By Ext.P2 judgment delivered on 20^th September, 2004, a Division Bench of this court disposed of the said writ petition in the following terms:-

“The petitioners seek a direction to respondents 1 to 5 to ensure that the 7^th respondent Ignatious Zaka-I, Patriarch of Antioch, does not indulge in religious activities in violation of the Foreigner’s Act, 1946 and orders issued thereunder.

2. It is submitted that he has obtained only a tourist visa. Therefore, he has to confine his activities in accordance with the provisions contained in the Visa Manual. Whether there is violation of the provisions contained in the Foreigners Act or the provisions of the Visa Manual, is a matter for the Government to consider and do the needful.

We are not satisfied that a stage has attained for this court to step in now. Writ petition is, therefore, dismissed.”

6. In the instant case, the petitioners proceed on the assumption that the seventh respondent who had violated the visa conditions during his visit to the State of Kerala on an earlier occasion will indulge in religious activities and that it will disrupt the communal harmony. The petitioners contend that respondents 1 to 5 are in law bound to prevent the seventh respondent from indulging in religious activities.

7. I have perused the averments made by the petitioners in the writ petition. I have also gone through the documents produced along with the writ petition. No material has been produced before me to show that during his visit from 17.10.2008 to 23.10.2008 the seventh respondent will be indulging himself in religious activities. The seventh respondent is the spiritual head of the Jacobite Syrian Christian Church though a section of the Malankara Orthodox Syrian Church in the State of Kerala does not recognize him as their spiritual and temporal head. The circular issued by the Govt. of India dated 12.6.1997 to all Indian Missions/Posts abroad does not stipulate that a foreigner on a tourist visa cannot indulge in religious activities. It is only in the letter dated 10.4.1996 that the State Governments were directed to ensure that a foreigner on tourist visa does not indulge himself in religious activities/Tabligh work. A reading of the letter dated 10.4.1996 will disclose that the restriction on a foreigner in India on a tourist visa is on indulging himself in religious activities/Tabligh work.  The term “religious activities” has got a definite meaning. The petitioners have not produced any material to show that during his earlier visit to the State of Kerala, the seventh respondent indulged himself in religious activities. The seventh respondent is the spiritual head of the Jacobite Syrian Christian Church. The seventh respondent’s right to participate in religious functions is not curtailed by the Circular dated 10.4.1996.  He certainly has a right to offer worship in the Church. The only restriction is on indulging himself in religious activities. The term religious activity occurring in the letter dated 10.4.1996 extracted above can in the context in which it is used, namely, in association with Tabligh work, mean only an act of proselytization. In the instant case, no cogent material has been produced before this court to establish that the purpose of the visit of the seventh respondent is to indulge himself in religious activities, of the kind prohibited in the letter dated 10.4.1996.

8. In the absence of any cogent material to show that the seventh respondent is likely to indulge himself in such religious activities, I am of the considered opinion that the grievance voiced by the petitioners is imaginary and unreal and rested on mere surmises and conjectures. On the materials on record, the petitioners are not entitled to the reliefs sought for. This writ petition is in my opinion an unwelcome gesture by Indian citizens residing in Gods Own Country that is Kerala, to the spiritual head of thousands of Jacobite Syrian Christians, the world over.

This Writ Petition accordingly fails and is dismissed in- limine.

                                                Sd/-

                             P.N. Ravindran, Judge.

//true copy//           PA to Judge

//true copy//           Sd/- Examiner.

ANNEXURE P-16

BEFORE THE HONOURABLE DISTRICT COURT, ERNAKULAM

 

O.S. No.10 of 2003

 

Mathai Varghese and others      :                            Plaintiffs

v/s

St. Mary’s Jacobite Syrian Church

Varikoli & others                       :                            Defendants

 

WRITTEN STATEMENT FILED BY ADDITIONAL DEFENDANTS 6 TO 10 UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE

1. All the averments and allegations contained in the plaint and in the amendment plaint except to the extent of what is expressly admitted hereunder are denied by these defendants. The above suit is not maintainable either in law or on facts.

2. These defendants have gone through the written statement and additional written statement filed by the original defendants 1 to 3 and the contentions contained in their written statement and additional written statement are accepted and adopted by these defendants also.

3. Apart from the contentions contained in the written statement and additional written statement of original defendants 1 to 3, these defendants further content as follows.
4. It is submitted that the leave under Section 92 of the Code of Civil Procedure granted by this Honourable Court is not in accordance to law and hence the leave granted by this Honourable Court is liable to be revoked. Accordingly the above suit is not maintainable in law and hence the suit is liable to be rejected.

5. It is further submitted that the 1^st defendant church now is a constituent church of Jacobite Syrian Church following the Jacobite faith and tradition right from its establishment and the plaintiffs were also following this faith. Now, the plaintiffs have deviated from that faith which the church was following along with the Metropolitan H.G. Thomas Mar Athanasius. Accordingly, the plaintiffs have ceased to be the parishioners of 1^st defendant church.

6. It is respectfully submitted that the plaintiffs who have departed from their original faith is not accepting the 1995 judgment of the apex Court in totto. The Apex Court has held that Patriarch of Antioch is the Supreme Spiritual Head of Universal Orthodox Syrian Church and Malankara Orthodox Syrian Church is a Division of the same. The fact that Orthodox Church does not accept the Patriarch of Antioch as the Supreme Spiritual Head of the Church is discernable from the averments contained in W.P.[C] No.29572/2008 [U] filed by the Priest Trustee and Association Secretary of the Orthodox Church in which the Patriarch of Antioch is arrayed as 7^th respondent. It is to be noted that the Orthodox Church has described the Supreme Head of the Church on the basis of 1995 judgment of the Apex Court as “Ignatius Zaka-I”. It is respectfully submitted that from this fact alone, it is crystal clear that the Orthodox Church is not accepting the Patriarch of Antioch as the Supreme Spiritual Head of the Church as held by the Apex Court. The erstwhile Patriarch group and the churches loyal to the Jacobite faith therefore has decided not to participate with the Malankara Association held on 2002 and also formed the Jacobite Syrian Christian Association and also adopted its constitution on 2002. It is submitted that the 1^st defendant church in accordance to its faith accepted the 2002 Constitution and therefore is a constituent church under 2002 Constitution.

7. It is submitted that there is fundamental difference between the faith of Orthodox Church and the Jacobite Church. This fact is discernable from the difference in the Canons being accepted and followed by the Orthodox Church and the Jacobite Church. It is also submitted this fact is evident from the judgment of the Apex Court rendered in the year 1995 and reported in AIR 1995 SC 2001.

It is therefore submitted that the above suit may be dismissed with costs of the additional defendants.

Dated this the 30^th day of November 2010.

K.J. Kuriachan,                                   Additional Defendants:-

Counsel for the addl.

Defendants 6 to 10.                       Paul. T. Varghese

                                                          7)  P.A. George

8) K.I. Yacob

9) V.V. Mathai

10) Ajosh George

VERIFICATION

We, (1)  Paul. T. Varghese, (2)  P.A. George, (3) K.I. Yacob, (4) V.V. Mathai, (5) Ajosh George, additional defendants 6 to 10, do hereby declare that the averments contained in paragraphs 1 to 7 of this written statement are true and correct and we have verified the written statement at the office of our counsel on this the 30^th day of November 2010.

Additional Defendants:- 6)  Paul. T. Varghese

                                                          7)  P.A. George

8) K.I. Yacob

9) V.V. Mathai

10) Ajosh George

BEFORE THE HONOURABLE DISTRICT COURT, ERNAKULAM

 

O.S. No.10 of 2003

 

Mathai Varghese and others      :                            Plaintiffs

v/s

St. Mary’s Jacobite Syrian Church

Varikoli & others                       :                            Defendants

AFFIDAVIT

 

          I, Paul. T. Varkey, S/o. Varkey, aged 57 years, Thelakkattu House, Varikkoli, Puthencruz Village, Kunnathunadu Taluk, ernakulam District, do hereby solemnly affirm and state as follows:-

1. I am the 6^th additional defendant in the above case. I along with additional defendants 7 to 10 have filed a common written statement. I am swearing this affidavit on behalf of additional defendants 6 to 10 as they have specifically instructed me to do so.

2. The averments contained in paragraphs 1 to 7 of this written statement filed by us may be read as part of this affidavit. It is submitted that the above suit may be dismissed by accepting the contentions contained in the written statement filed by the original defendants 1 to 3 and also in the contentions contained in the written statement filed by them in their additional written statement and also in the written statement filed by us along with this affidavit.
3. It is submitted that the above suit may be dismissed with costs of these additional defendants.

          All what is stated above are true and correct.

          Dated this the 30^th day of November 2010.

                                                                             Paul. T. Varkey

                                                                                  (Deponent)

          Solemnly affirmed and signed before me by the deponent who is personally known to me at my office at Ernakulam on this the 30^th day of November 2010.

K.J. Kuriachan,

Advocate

//True Copy//

ANNEXURE P-17

 

BEFORE THE HONOURABLE DISTRICT COURT, ERNAKULAM

 

O.S. No.10 of 2003

Mathai Varghese and others      :                            Plaintiffs

v/s

St. Mary’s Jacobite Syrian Church

Varikoli & others                       :                            Defendants

 

WRITTEN STATEMENT FILED BY ADDITIONAL 5^th DEFENDANT UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE

1. All the averments and allegations contained in the plaint and in the amendment plaint except to the extent of what is expressly admitted hereunder are denied by these defendants. The above suit is not maintainable either in law or on facts.

2. This defendant has gone through the written statement filed by additional defendants 6 to 10 who were impleaded in the suit along with this defendant. I could not join with additional defendants 6 to 10 in filing the written statement as I was in U.S.A.

3. It is submitted that I do hereby agree and endorse the contentions contained in the written statement dated 30.11.2010 filed by additional defendants 6 to 10.

It is therefore humbly prayed that the above suit may be dismissed with costs.

          Dated this the 4^th day of January 2011.

K.J. Kuriachan,                                                      V.E. Thomas

Counsel for the addl. 5^th defendant.               Addl. 5^th defendant.

VERIFICATION

 

          I, V.E. Thomas, addl. 5^th defendant in the suit, do hereby declare that the averments contained in paragraphs 1 to 3 of this written statement are true and correct and I have verified the written statement at the office of our counsel on this the 4^th day of January 2011.

V.E. Thomas

                                                                   Addl. 5^th defendant.

//True Copy//

ANNEXURE P-18

 

IN THE COURT OF DISTRICT MUNSIFF, ERNAKULAM

Present: Sri. V.G. Anilkumar, B.Sc., LL.B., I Addl. District Judge

Monday 10^th day of February 2014 /21^st Magha 1935

 

O.S. No.10/2003

Plaintiffs:

1. Mathai Varghese, S/o. Varghese, aged 55,

          Muthirakalayil House, Mattakuzhi, Varikoli P.O.,

          Thiruvaniyoor Village.

2. T.M.Paulose, S/o. Mathai, aged 53,

          Thelakkat House, Varikoli P.O.

          Puthencruz Village.

3. C.E. Geevarghese, aged 40, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

4. M.C. Paulson, aged 38, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

5. T.T. Paulose aged 48, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi,

          Varikkoli P.O.,

          Thiruvaniyoor Village.

6. T.V. Thomas aged 44, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

7. O.V. Varghese aged 63, S/o. Varghese,

          Othimaparambil House, Pancode P.O.,

          Ikkananadu North Village.

8. M.K. Paulose aged 45, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

9. Baby Joseph, aged 45, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.,

          Thiruvaniyoor Village.

10. C.C. Philip aged 45, S/o. Cherian,

          Chakkyattil House, Varikoli P.O.,

          Puthencruz Village.

By Adv. Sri. Paul. K. Varghese.

Defendants:-

 

1. St. Mary’s Orthodox Church,

          Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

2. Binoy Varghese aged 31, S/o. Varghese,

          Ikkarayil House, Mattakuzhi, Varikkoli P.O.

3. C.A. Varghese aged 60, S/o. Abraham,

          Chemmoth House, Chemmanadu,

          B.K.   Puram.P.O.

4. Rev. Fr. Mathai, Vadakkineth, S/o.

          Vadakkineth House, Ezhakkaranad South P.O,

          Maneed Village.

5. V.E.Thomas, S/o. Ittoop, aged 64 years,

          Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

6. Paul. T. Varkey, S/o. Varkey, aged 56,

          Thelekkattu House,

          Mattakuzhi, Varikkoli. P.O., Puthencruz Village,

          Kunnathunadu Taluk, Ernakulam Dist.

7. P.A. George, S/o. Alexander, aged 61 years,

          Padiyil House,

Mattakuzhi, -do-  -do-

8. K.I. Yacob, S/o. Isahac, aged 59 years, Kizhippillil House, Mattakuzhi, -do- -do-

9. V.V. Mathai, S/o. Varkey, aged 54 years,

Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, -do- -do-

10. Ajosh George, S/o. George, aged 32 years, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, -do-

[Addl. Defendants 5 to 10 impleaded as per order dated 28.11.2009 in I.A. 5191/09 in O.S. 10/2003 of the 1^st Addl. Dist. & Sessions Judge, Ernakulam]

D1 to D3 and Addl. D5 to Addl. D10 by Adv. Sri. K.J. Kuriachan.

D4 by Advs. M/s. S. Sreekumar & Eldho Cherian.

This original suit filed under Section 92 Order 7 Rule 1 and Order 1 Rule 8 of CPC.

This original suit coming on for hearing before me on 18.1.2014 and stood over consideration till this date and the court on 10.2.2014 delivered the following:-

J U D G M E N T

1. The suit is filed for declaration and permanent prohibitory injunctions.

2. The plaintiffs contentions are as follows: – The 1^st defendant St. Mary’s Orthodox Church is a church of Malankara Orthodox Church being under the Kandanadu diocese. It is a public trust. Plaintiffs are parishioners of that church. Since the parishioners are too many the suits filed in representative capacity under Order 1 Rule 8 of CPC. The administration and management of the church have to be carried out as provisions of 1934 constitution. The Hon’ble Supreme Court held the validity of that constitution as per the judgment reported in 1995 SC 2001. The Metropolitan of Kandanadu Diocese, Dr. Thomas Athanasius appointed the 4^th defendant as vicar of the 1^st defendant church in accordance with Article 40 of 1934 constitution. In accordance with the direction of the Honourable Supreme Court election to the managing committee of Malankara church was held on 20.3.02 under the mediation of Hon’ble Justice Mr. Malimath. The Kandanadu diocese divided into two for the purpose of administration as East and West. Thomas Mar Athanasius has been appointed as metropolitan of Kandanadu diocese east under which the 1^st defendant comes. Then Kalpana No.56/2012 was issued confirming appointment of 4^th defendant vicar of the 1^st defendant church. They were elected as trustees only for a period of 1 year by the general body held on 17.1.99. The 4^th defendant has not taken any steps to call for general body and to elect new office bearers including the secretary and the trustees. The accounts of the church so far are not audited and submitted to the general body for acceptance. Lakhs of rupees were collected and spent by the defendants their whims and fancies without maintaining proper accounts and without obtaining approval of the general body. The defendants said that they would administer the church on their accord and nobody could question it and even said that they are not bound by the decision of the Hon’ble Supreme Court as well as 1934 constitution. So the suit is filed for declaration that the 1^st defendant church is governed by 1934 constitution as upheld by the Hon’ble Supreme Court and the defendants 2 and 3 have no right or authority to claim as trustees of the 1^st defendant church, for permanent prohibitory injunction to restrain defendants 2 and 3 from functioning as trustees of the 1^st defendant church and for mandatory injunction directing the 4^th defendant to call immediately general body meeting of 1^st defendant church and conduct election of new managing committee including trustees and secretary in accordance with the 1934 constitution.
3. By way of amendment the plaintiffs further contended that only priest appointed under 1934 constitution by the diocesan metropolitan can conduct religious ceremonies in the 1^st defendant church and the attempt of the defendants 2 and 3 and others to bring Vicar/priest not appointed in accordance with the 1934 constitution is to interrupt the peace and harmony in the 1^st defendant church. So the plaintiffs prayed for permanent prohibitory injunction to restrain the defendants 2 and 3 and their men from bringing any Vicar/Priest for conducting religious ceremonies in 1^st defendant church who are not appointed by diocesan metropolitan in accordance with the 1934 constitution and from causing any obstruction to the 4^th defendant or his successors appointed under 1934 constitution in conducting religious ceremonies in the 1^st defendant church and the cemetery attached thereto.

4. The defendants 1 to 3 filed joint written statement contending as follows:- The 1^st defendant is not a church of Malankara Orthodox Church. It is not public trust. The church was established in 1928 by the people of the locality for religious worship as per the jacobite faith and devotion. The church and its parishioners believe and have been always loyal to the Patriarch of Antioch. The parishioners believe in the apostolic succession of St. Peter through Patriarch of Antioch. The church and its parishioners ever since its establishment only accepted and approved the hierarchy of priests ordained or loyal to the Patriarch of Antioch. The administration of the church was not in accordance with the 1934 constitution at any point of time. The parishioners never adopted 1934 constitution. The Honourable Supreme Court has not held in the case reported in AIR 1995 SC 2001 that the administration of the 1^st defendant church has to be in accordance with the 1934 constitution. In accordance with the fundamental faith, believe and tradition, the parish assembly in its duty convened meeting on 30.6.02 adopted 2002 constitution of Jacobite Syrian Church and 1^st defendant church is a member of the Jacobite Syrian Christian Association. They have freedom to adopt that constitution in view of Article 19(1)(c), 25 and 26 of the Constitution of India.  The 1^st defendant is not a party to the suits decided by the Hon’ble Supreme Court in the year 1995. The church and the parishioners accepted H.G. Thomas Mar Athanasius since he was a Metropolitan loyal to the Patriarch of Antioch. Since he abandoned the faith and joined hands with the rival faith, the parishioners can never approve him as their metropolitan. Since the 4^th defendant deviated from the fundamental faith of the church, present metropolitan of jacobite church H.G. Kuriakose Mar Diyascorous as per his Kalpana No.KND 35/03 removed him from the post and appointed Rev. Fr. Thomas Mureekkal as the Vicar of the church.  The defendants 2 and 3 were the trustees elected on 17.1.99. The annual general body meeting held on 9.2.03 elected new trustes, P.A. George Padiyil and Paul Varghese Keelappillil. Since they are not impleaded, the suit is bad for non-joinder of necessary parties. The general body approved all the actions taken by the defendants 2 and 3 and the committee. The general body held on 9.2.03 passed the accounts and defendants 2 and 3 handed over charge to the newly elected trustees. There is no cause of action for the suit. So the suit has to be dismissed.

5. They filed additional written statement contending that the vicar/priest appointed under 1934 constitution alone can conduct religious service in the church is false and the plaintiffs are not entitled to get the new reliefs prayed for.
6. The 4^th defendant filed written statement supporting the contentions of the plaintiffs. He further contended as follows:-  The defendants 2 and 3 and their supporters were always creating trouble in the church. They brought another priest by name Fr. Raju Kolappurath for the purpose of conducting holy mass on 22.5.99, the parishioners obstructed the same, there was law and order situation and the police intervened and closed the church. Thereafter on discussion, it was decided to open the church, the then vicar Fr. Rev. Mathews Kanjiramparm was transferred and 4^th defendant was appointed as the vicar by H.G. Dr. Thomas Mar Athanasius. The defendants 2 and 3 and their supporters manipulated the minute books and other records of the church to make it appear that the managing committee meeting was conducted after 16.12.00.  In May 2003, defendants 2 and 3 created problems, and brought 5 priests from outside without knowledge or consent of him, the parishioners obstructed them and there was law and order problem. Under the mediation of District Collector, Ernakulam it was decided to conduct religious services in the church by both groups at different times.  Accordingly, the church was opened and the defendant is conducting religious services in the church in accordance with the timing so agreed upon. The defendants 2 and 3 and their supporters now claim that they have adopted some other constitution of 2002. If they do not accept 1934 constitution they have no right to be in administration of the church or its assets.

7. Later, additional defendants 5 to 10 got impleaded. The defendants 6 to 10 filed joint written statement. They contended as follows:- The plaintiffs deviated from the faith which the church was following. So they ceased to be the parishioners of the 1^st defendant church. The Hon’ble Supreme Court in the judgment in the year 1995 and that Patriarch of Antioch is the supreme spiritual head of Universal Orthodox Syrian Church and the Malankara Orthodox Syrian Church is a mission of the same. The Orthodox Church does not accept the Patriarch of Antioch and that fact is discernible from the averments contained in W.P.[C] No.29572/08 filed before the Hon’ble High Court by the priest trustee and association secretary of the orthodox church, in which the Patriarch of Antioch was arrayed as 7^th respondent. erstwhile patriarch group and the churches loyal to the jacobite faith therefore decided not to participate in the Malankara association held in 2002 and formed the Jacobite Syrian Christian Association and adopted its constitution in 2002. The first defendant church accepted that constitution. There is a fundamental difference between the faith of the Orthodox Church and jacobite church.

8. The Addl. 5^th defendant also filed written statement adopting the contentions in the written statement filed by the Addl. Defendants 6 to 10.

9. The following issues are raised for consideration:-
10. Whether the 1^st defendant church is governed by 1934 constitution ?
11. Whether defendants 2 and 3 have no right to claim status of trustees ?
12. Whether the 4^th defendant or his successor appointed under 1934 constitution alone can conduct religious ceremonies in the 1^st defendant church ?
13. Reliefs and costs.
14. The evidence consists of oral testimony of PW1 and 2 and DW1 to DW3 and Exts. A1 to A24, B1 to B29 and Exts. X1 to X11. Exts.X1 to 4 were marked through PW2.  By oversight the documents produced by DW3 were again marked as Exts.X1 to 4. So Exts. X1 to X7 marked through DW3 are remarked as Exts. X5 to 11.

11. Issue No.1:-  The 1^st plaintiff was examined as PW1. He filed proof affidavit reiterating the contentions in the plaint. PW2 is the secretary of the Malankara Orthodox Syrian Church. The 3^rd defendant was examined as DW1.  Additional 7^th defendant was examined as DW2.  The Trustee of Jacobite Syrian Christian Church was examined as DW3.  On going through the pleading and evidence of the parties, it is evident that even after pronouncement of the judgment by the Hon’ble Supreme Court in the case PMA Metropolitan Vs. Moran Mar Marthoma [AIR 1995 SC 2001], the dispute between catholicos faction and patriarch faction in Malankara Orthodox Syrian Church continues.

12. The defendants 1 to 3 in their written statement took a totally negative stand that the judgment in PMA Metropolitan’s case is not applicable to the 1^st defendant church. Such a stand is not at all acceptable. They also contended that 1934 constitution of Malankara Church is also not applicable to this church. That contention also cannot be accepted in the light of the decision of the Hon’ble Supreme Court.  But, defendants 6 to 10 who adopted the contentions of defendants 1 to 3 advanced a further contention that the plaintiffs who departed from their original faith (jacobite faith) is not accepting the 1995 judgment of the Apex Court in toto and that the Apex Court held that Patriarch of Antioch is the supreme spiritual head of Universal Orthodox Syrian Church. Their complaint is that the Malankara Orthodox Church does not accept the Patriarch of Antioch and so only one part of the judgment regarding 1934 constitution cannot be enforced. The issue in PMA Metropolitan’s case was the dispute between the patriarch faction and catholicos faction and also regarding the extend of powers of Patriarch of Antioch and catholicos or East/Malankara Metropolitan. The same dispute continues in the present suit also, even though the administration of individual parish church is the subject matter.

13. The history of the dispute between the two factions including the various suits filed are discussed in detail by the Hon’ble Supreme Court in the judgment reported in AIR 1995 SC 2001.  One of the findings in the judgment is that the 1934 constitution was approved at a validly convened meeting of Malankara Association, which Association was created by the Patriarch himself as per the resolutions of Mulanthuruthy Synod, that the defendants in those suits (patriarch group) cannot question its legality and validity in view of the acts and conduct of patriarch and members of his group, subsequent to the judgment of the Hon’ble Supreme Court in M.M.B. Catholicose v. T.Paulo Avira [AIR 1999 SC 31].  But, at the same time the Hon’ble Supreme Court in paragraph 141 of the judgment held as follows:-  “We are, however, of the opinion that in this suit no declaration can be granted effecting the rights of Parish Churches in their absence nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metorplitan or the Metropolitan of the concerned diocese, as the case may be indeed, no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by the plaintiffs that their church is Episcopal in nature, if that declaration means that it gives the Catholicos/Malankara Metroplitan/the Metropolitan of the Diocese any title to or any control over the properties held by the Parish Churches. We have pointed out here in before that the only place in the plaint where a reference is made to the properties of the Parish Churches is in para 24 where all that it is alleged is that the defendants and their partisans are trying to intermeddle in the affairs of individual churches and are attempting to make use of the properties of the church to further their illegal and unlawful objects. No list of parish properties is enclosed nor are the particulars of the alleged intermeddling mentioned in the plaint. In the state of such a pleading, the only observation that can be made herein is that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches too, insofar as the said Constitution provides for the same.”

          It is also held as follows:- “If the plaintiffs mean merely spiritual control by saying Episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metroplitan 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. It also appears that each of these parish Churches/Associations has its own constitution; where under the general body of the Parishes is declared to be the final authority in temporal matters. All this is mentioned only to emphasize that in the absence of the Parish Churches and proper pleadings and proof, no declaration touching the Parish Churches can be granted in these suits.”

14. In the present case the defendants except 4^th defendant consider the Patriarch of Antioch as supreme religious head. Defendants 6 to 10 contended that plaintiffs do not follow the judgment of the Supreme Court in toto since they do not recognize the Patriarch of Antioch.  They even contended that erstwhile patriarch group and the churches loyal to the Jacobite faith, therefore, decided not to participate in the Malankara association held in 2002 and formed the Jacobite Syrian Christian Association and adopted its constitution in 2002. So it would definitely indicate that the dispute between the two factions continue. The Hon’ble Supreme Court delivered a final finding that 1934 Constitution is valid and is applicable to the parish churches attached to Malankara Association. It is only in respect of temporal matters the Supreme Court did not render a decision. So there is no merit in the contention of the defendants that the decision of the Hon’ble Supreme Court in PMA Metropolitan’s case regarding the applicability of the 1934 constitution, is not binding upon them. In the light of the judgment of the Hon’ble Supreme Court it has to be held that the 1^st defendant church has to be administered as per 1934 Constitution. At the same time, it is to be noted that regarding temporal affairs of the individual churches no decision was rendered by the Apex Court.

15. On a close scrutiny of the prayer in the plaint, it is seen that the prayer is for declaration that the 1^st defendant church is governed by 1934 Constitution as upheld by the Supreme Court and it is not that the church has to be administered under 1934 Constitution. It appears that after the decision in the case M.M.B. Catholicos  v.  T. Paulo Avira [AIR 1959 SC 31], peace prevailed in the Churches and there was attempt to function jointly it might be, because of that situation the plaintiffs could produce documents that representatives were sent to participate in the Malankara Association meeting. Exts. A1 and A2 are the letters dated 24.06.1976 and 03.5.1973 respectively, sent by Vicar of the Church to the Metropolitan of Kandanad diocese. The name of the church is shown as St. Mary’s Orthodox Syrian Church. Ext. A3 is said to be the accounts submitted to the metropolitan. But, there is nothing in it to find that it was submitted to metropolitan. Ext. A4 is said to be the list of 1064 churches under Malankara association approved by the Hon’ble Supreme Court. But, the document does not show that it was approved by Hon’ble Supreme Court. Exts. A5 to 18 are said to be letters sent by metropolitan to the 1^st defendant-church.

16. PW2 is the secretary of Malankara Association. He produced Exts. X1 to 4. Ext.X1 is the copy of notice issued by vicar of the 1^st defendant-church regarding the election of representatives to the meeting of Malankara association held on 31.12.1970.  Ext.X2 is the authorization given by the president of parish committee to the representatives to participate in the meeting of Malankara Association held 3^rd day of Edavam, 1126.  Ext.X3 is the original attendance register of the participants in the meeting of Malankara Association held on 28.12.1965.  Ext.X4 is the copy of attendance register of the participants in the meeting of Malankara Association held on 16.09.1959. The name of 1^st defendant church and participants from there found place in it.

17. The 3^rd defendant was examined as DW1.  He deposed in tune with pleadings in the written statement. Exts. B1 to B14 were marked through him. Ext.B1 is the general body diary of the 1^st defendant/church for the period 09.03.1952 to 14.05.1978 and Ext.B2, for the period 14.01.1979 to 04.05.2003. Ext.B3 is the managing committee minutes book from 25.04.1998 to 29.05.2005.  In cross examination the plaintiffs got marked the decisions in Ext.B1 as Exts.A21, 21(a) and (b) and decisions in Ext.B2 as Exts.A22, 22(a) and (b).  Ext.A21 entry corroborates Ext.X4 and Ext.A21(b) corroborates Ext.X1.  The said entries and other entries would prove that representatives were sent to the meetings of Malankara Association from the 1^st defendant-church.  So, there is no merit in the contention of the defendants that the 1^st defendant-church do not come under Malankara Church and nobody from the church participated in the meeting of Malankara Association.

18. The additional 7^th defendant was examined as DW2.  He stated that the entire parishioners in 1^st defendant/church follow jacobite faith their supreme religious head is the Patriarch of Antioch, they recognized the metropolitans of jacobite faith, so they recognized Thomas Mar Athnasious also, that he participated in the compromise talks from the side of jacobites after the judgment of the Apex Court in the year 1995, later he switched over to the opposite side, the orthodox faction did not recognize the Patriarch, the churches who follow jacobite faith formed jacobites Syrian Christian Association in the year 2002 and 1^st defendant church is a member in it.  The decisions on various meetings in Exts.B1 were separately marked from the defendants’ side from Ext.B1(a) onwards. The decisions in the meeting would show the change after the decision of the Supreme Court in the year 1958, they were in the process of accepting the Catholicose, but because of fresh dispute they decided not to accept him and 1934 constitution,, it appears from the decisions that there is majority for jacobite faction in 1^st defendant church. According to the plaintiffs, the trustees and managing committee members were elected in the year 1999, thereafter no election was conducted. But, according to the defendants, election was conducted thereafter and new trustees were elected. So that fact also would indicate that the jacobite faction actually administers the affairs of the church.

19. It is also brought out that Dr. Thomas Athanasius belonged to Jacobite faith earlier, so the parishioners considered him as their metropolitan, and also approved 4^th defendant as the vicar of the Church. Learned counsel for contesting defendants argued that since the then Metropolitan and Vicar changed their stand it cannot be said that the parishioners also converted to orthodox faction. The counsel also pointed out that rights of parish churches is not decided in the Supreme Court judgment. It is pointed out by learned Senior counsel for the plaintiffs that Dr. Mar Thomas Athanasius and 4^th defendant rightly complied the order of the Hon’ble Supreme Court and sworn allegiance to the 1934 Constitution.

20. The defendants justly their action by saying that the orthodox faction does not recognize the Patriarch of Antioch as the supreme head even after the decision of the Hon’ble Supreme Court in PMA Metropolitan’s case. They produced copy of the Writ Petition No.29572/08 filed by the Secretary of the Malankara Association and priest trustee of the Orthodox Syrian Church, with the prayer to give direction to the 7^th defendant who is the Patriarch of Antioch to ensure that 7^th defendant did not indulge in religious activities in Kerala in violation of the Foreigners Act, 1946. Learned counsel for the defendants would argue that the filing of the writ petition itself shows that the orthodox faction does not recognize the Patriarch of Antioch.  Ext.B15 is the copy of the judgment of the Hon’ble High Court dismissing the writ petition. The counsel for the defendants submitted that the judgment of the Hon’ble Supreme Court has to be considered in its entirety that there cannot be a suit with prayer only regarding 1934 constitution when there is specific finding of the Hon’ble Supreme Court that Patriarch of Antioch is the supreme head of the Orthodox Syrian Church. The counsel even said that the judgment in PMA Metropolitan case is conditional in nature. I am of the opinion that it cannot be said that it is a conditional decree. But both sides must follow the decision and recognize each other. It appears the present suit is filed not with the contention to have peace in the church. It is only as part of power struggle, the present suit is filed.

21. There is an argument from the side of the plaintiffs and 4^th defendant that as per Article 101 of 1934 Constitution Malankara Church has to recognize only the Patriarch who was ordained with the co-operation of Catholicos. There is even an attitude for 4^th defendant that they don’t know who is the present Patriarch. The Hon’ble Supreme Court had no occasion to consider Article 101 of 1934 constitution, since such a contention was not taken. The argument from the side of plaintiffs is that when 1934 constitution is approved, all its provisions have to be accepted. But it could be seen that there are provisions in 1934 constitution regarding temporal affairs of parish churches, including that consent of metropolitan has to be obtained for transfer of parish church properties. The Hon’ble Supreme Court observed that there is separate constitution for individual parish churches and the parish assembly has right in taking decision in temporal matters. I do not go into deep. It is not in the good interest of the religion or faith, an argument is raised that the orthodox faction even does not know who is the present Patriarch of Antioch.  It would definitely hurt the parishioners who consider Patriarch of Antioch as their supreme religious head. When the Malankara Church approached the Hon’ble High Court even to prevent his entry in the State, their bonafides should be doubted. It is against the spirit of the judgment and hope expressed by the Apex Court to prevail peace. So I am of the opinion that in such a situation the discretionary relief for declaration cannot be granted. It appears it is only to serve the interest of orthodox faction that the suit is filed. There is no attempt to honour the faith of the patriarch faction in Patriarch of Antioch. However, it has to be held that the 1^st defendant church has to be administered under 1934 constitution recognizing the Patriarch of Antioch as the supreme religious head.

22. At the same time, the action of the defendants to form a separate association, Jacobite Syrian Christian Association and framing of constitution in the year 2002 also cannot be approved. The Hon’ble Supreme Court held as follows:- “it may be that by virtue of the revival of Catholicate and by issuing the Kalpana Ext.A14 and also by accepting the 1934 Constitution [as to be mentioned presently] – the power of the Patriarch may have been reduced to a vanishing point, but at the same he remains the supreme head of the Syrian Church of which the Malankara Church is a division. He is spiritually superior to the catholicos through he does not, and indeed never did, enjoy any temporal powers over the Malankara Church or its properties.”  So, if separate association is formed by the Jacobite faction it will be against the spirit of the judgment of the Apex Court. Separation into two groups is not contemplated, but unity is expected. But, at the same time, a question arises what should be done if orthodox faction does not recognize the Patriarch of Antioch?

23. Learned Senior Counsel for plaintiffs pointed out that jacobite faction did not participate in the meeting of Malankara association held under the observation of Hon’ble Justice Mr. Malimath as per the direction of the Apex Court, they proceeded to form another association and the conduct of the Patriarch of Antioch led to subsequent events. Learned counsel for the contesting defendants submitted that it was only at a later stage they understood that the orthodox faction has no intention to accept the Patriarch and so they did not participate in the meeting of Malankara Association. Whatever it may be the formation of another association by the patriarch faction cannot be approved.

24. Learned counsel for the defendants would even argue that independence of Simhasanam Church, Knanaya Church, Evangelical Association of East and St. Antony’s Church, Mangalore is recognized by the Hon’ble Supreme Court in the said judgment and likewise the first defendant church also has independent existence. I am of the opinion that the contention is also not sustainable as it is evident from the pleading and evidence of both sides that the dispute is between the patriarch faction and orthodox faction which is already decided by the Apex Court.

25. Learned counsel for the contesting defendants tried to argue that if the suit is decreed it would amount to change of place of worship which will be in violation of the provisions in [The] Places of Worship [Special Provisions] Act, 1991.  It is to be noted that this contention was considered in PMA Metropolitan’s case. The counsel argued that that finding is not applicable to the first defendant church since it was established in the year 1928 and that it cannot be said that church is a monument. But, it does not appear that there is any conversion of faith or religion in this case. The matter in dispute is either the constitution framed in the year 1934 is applicable to the defendant church. So the said argument raised by the counsel for defendants is not sustainable.

26. The counsel for contesting defendants also argued that a separate suit is not maintainable when the plaintiffs’ contention is that 1934 constitution is upheld by the Supreme Court as it would amount to res judicata. Hon’ble Supreme Court held regarding the main dispute between the two factions and did not deal with matters of all parish churches. So, it cannot be said that the suit is not maintainable.

27. So the point is concluded finding that the 1^st defendant-church has to be administered as per the constitution of Malankara church framed in the year 1934.  But, the 1^st defendant church is not governed as per that constitution.

28. Point No.2:–  Defendants 2 and 3 contended that new trustees were elected and so the suit is bad for non-joinder of necessary parties. But no document is produced to see how they were elected. There is only oral evidence of DW1 that the trustees are being elected periodically. Ext.B8 is said to be a communication sent by the trustees to Kandanadu Metropolitan stating that as per the parish general body meeting the 4^th defendant has to be removed from the position of vicar and a new vicar has to be appointed. The communication is signed by P.A. George and Paul Varghese as trustees for the managing committee.  Ext.B9 is the order of the metropolitan removing 4^th defendant and appointing Fr. Thomas Mureekkal. It is evident that both groups function in parallel and the patriarch faction has their own priest and they manage the affairs of the church. The orthodox faction does not recognize it for the reason that it was not in accordance with 1934 constitution. Since they ignore the same they did not implead any new persons as trustees in the suit. In the light of that stand it cannot be said that the suit is bad for non-joinder of necessary parties.

29. It is already found that the jacobites faction is in management of the church. The plaintiffs claim the right of the orthodox faction to manage the church in the light of the decision of the Hon’ble Supreme Court.  But, the only  hope  by the Hon’ble Supreme Court is not attained. The dispute continues. The orthodox faction does not recognize the Patriarch of Antioch.  So the contention of the plaintiffs cannot be accepted.  The church is not governed by 1934 constitution so far. No new trustees are elected so far. So it cannot be said that defendants 2 and 3 cannot claim as trustees as new trustees are not elected and old trustees can continue till new trustees are elected. So this point is found against the plaintiffs.

30. Point No.3:– As stated earlier each group appointed their own priest. Subsequent events show that since law and order problem arose the District Collector and other Authorities intervened and at their mediation each group are allowed to conduct religious services with their priest and different timings are fixed for conducting the services. Exts.B10 and B11 are said to be the minutes of the meeting for mediation and the decisions taken respectively. It is true, it is not a permanent solution.  Only if, the church is governed by 1934 constitution, the prayer as made by the plaintiffs can be allowed. As stated earlier the church is not at present governed by 1934 constitution. One of the arguments is that so far as the orthodox faction does not recognize the Patriarch of Antioch. It cannot be said that the decision of the Hon’ble Supreme Court that the parish churches have to be administered under 1934 constitution should be followed. It is also to be noted that it was found that no declaration can be granted in respect of parish churches.

31. Learned counsel for the contesting defendants tried to argue that if the suit is decreed it would amount to change of place of worship which will be in violation of the provisions in [The] Places of Worship [Special Provisions] Act, 1991.  It is to be noted that this contention was considered in PMA Metropolitan’s case and was rejected. The counsel argued that that finding is not applicable to the first defendant church since it was established in the year 1928 and that it cannot be said that the church is a monument. But, it does not appear that there is any conversion of faith or religion in this case. The matter in dispute is whether the constitution framed in the year 1934 is applicable to the first defendant church. So the said argument raised by the counsel for the defendants is not sustainable.

32. Learned counsel for the contesting defendants cited the judgment in Sathya Ranjan Majhi vs. State of Orissa (2003) 7SCC 439 in which it is held that the right to propagate one’s religion does not include the right to convert to another religion.

33. The counsel also cited the decision in Mohammed Gani vs. Superintendent of Police [AIR 2005 Madras 359] in which it is held that the right to practice one’s religion freely is enshrined in Constitution of India under Articles 25(1) and that it is a fundamental right. In the present case, I do not think the issue involved would amount to conversion of religion or faith or faction.

34. The counsel for the contesting defendants also cited the judgments in D.D.M. Jaipur [Trust] vs. Mahant Ram Niwas [AIR 2008 Supreme Court 2187], Union of India Vs. Arun Mozhi Iniarshi [(2011) 7 Supreme Court Cases 397], Jitendar Kumar Singh  Vs. State of U.P. [AIR 2010 SCC 1851] and Natwarsingh Vs. Director of Enforcement [(2010)13 SCC 255] in order to guide how the judgment of the Hon’ble Supreme Court has to be followed or applied to the facts in the given case. I think the rulings stated are cited to canvass the position that the finding of the Supreme Court that the 1934 constitution would be applicable to the parish churches cannot be blindly followed and it cannot be applied to the 1^st defendant church. As stated earlier the Hon’ble Supreme Court considered in detail the dispute between patriarch faction and catholicos faction and the claim for supremacy or relationship between Patriarch of Antioch and Catholicos of East and it is after that it was found that 1934 constitution is valid to all parish churches under Malankara Church and Patriarch of Antioch is supreme religious head of Malankara Association, but he has no right in temporal matters of Malankara church. The dispute between the parties in the present suit is also substantially the same. So definitely the judgment of the apex court can be directly applied in the present case even if the 1^st defendant is not a party. At least it has to be followed as a precedent. So these rulings would not help the defendants to contend that 1934 Constitution is not applicable to the 1^st defendant church.

35. The counsel for the defendants also cited the decision in Andhra Pradesh Diary Development Corporation Federation vs. Narasimha Reddy and others [(2011) 9 SCC 286] in which it is held Article 19(1)[c]  of Constitution of India guarantees to all citizens the right to form association or union of their choice voluntarily, subject to reasonable restrictions imposed by law. The counsel also cited the decision in Moran Mar Baselious Marthoma Mathews II.  Vs. State of Kerala (2003(1) KLT 780) in which the Hon’ble High Court of Kerala held that a perusal of the judgment passed by their lordship of Supreme Court in the PMA Metropolitan case shows that in paragraph 120 it had been specifically observed that in the suit no declaration can be granted effecting the rights of the parish churches in their absence nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan of the concerned diocese, as the case may be and that was a clear refusal to grant any declaration effecting the right of the parish churches. It is also held that irrespective of the technicalities, the undeniable fact is that the constitutional right of a member of the Association to disassociate himself from the existing association or to form a new one cannot be disputed. It is pointed out by the counsel for the plaintiffs that the said decision was set aside by the Hon’ble Supreme Court as per the decision reported in 2007(3) KLT 348 [SC].  It is for the fact that the dispute between the parties cannot be decided in a writ petition filed for police protection that the said judgment was set aside and there is no mention regarding the observation made by the Hon’ble High Court of Kerala. However, it appears that disassociation of the two groups is not all contemplated. So the argument of the contesting defendants in the present case that they have right to form an association cannot be approved as it would be against the decision of the Supreme Court in paragraph 69 of the judgment in PMA Metropolitan’s case it is held as follows:-  “once these public charities were found whether before the establishment of catholicate or after it their nature could not change. On the material on record the courts have found them to be so. Therefore, the submission that they are autonomous does not appear to be well founded. Autonomy for what, religious worship or temporal matters, former cannot be pleaded as once a church was found for religious worship it continued to be so.  The autonomy in temporal matters as claimed appears to be two fold one, freedom to disassociate from Malankara Association and second to control and supervise its internal affairs. The first cannot arise.  In law it is not open to members of public or public trust to appropriate trust property for themselves.  Under Hill on the Law of Trusts and Trustees has explained it thus:  “However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust of future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust properly for themselves for there would then be no property held on trust as intended by the testator for more persons who some years later happened to be the members of the association for the time being. None of the Parish Churches claim autonomy in the sense that they have changed their faith and belief. Each of them claims that their spiritual head is Patriarch of Antioch.  That is they are the believers and followers of Syrian Church.  So are the members of Malankara Association and Catholicate of East. Therefore, the existence or exercise of autonomy for parishes has no meaning. Similarly, the independence or autonomy in temporal matters is not of any consequence. The Parishes are bound by the Constitution framed in 1934.”

36. When it is found that 1934 constitution is applicable to the 1^st defendant church, it has to be followed that only the vicar or priest appointed as per that constitution can conduct religious ceremonies in that church. But, as pointed out above when the plaintiffs or the orthodox faction and the 4^th defendant do not recognize Patriarch of Antioch, the supreme religious head; on whom many of the parishioners respose their faith, their discretionary relief of injunction cannot be granted. It is come out that in order to maintain law and order, under the intervention of the District Collector both factions are conducting religious ceremonies with the best of their choice. It is true, it is not a permanent solution. But, till a real solution is arrived at, that arrangement should be continued. I am of the opinion that the Superior Courts have to be approached for a permanent solution. In the aforesaid situation, it is not possible t give direction to conduct election as per the provisions in 1934 Constitution.  Moreover, there is contention for the defendants that election to the managing committee and trustees were being conducted. There is no material to find that there is any mismanagement. The point is found accordingly.

37. Point No.4:- Learned counsel for the contesting defendants pointed out that the immovable properties of the 1^st defendant church are not scheduled in the plaint and for that reason the suit has to be dismissed. The real dispute in this case is by which constitution the Church has to be administered or who has to conduct religious services of the church and not in respect of the immovable properties. So, there is no necessity to schedule the properties of the church.

38. The counsel for defendants also submitted that the publication made under Order I Rule 8 of the C.P.C. is not proper. It is seen that at the time of filing the suit, one publication and after amendment of the plaint another publication was made. It appears that the publications are sufficient to give notice to the interested parties about the filing of the suit and the reliefs prayed for. It is after the publication, the defendants 5 to 10 got impleaded. So there is no basis for the complaint that the publication is not sufficient.

39. In the light of the finding in the issues the suit has tobe dismissed. Considering the facts which led to the dismissal of the suit the parties will suffer the costs.

In the result, the suit is dismissed without costs. But, it is made clear that the 1^st defendant church has to be administerd under 1934 Constitution of Malankara Church, but a proper remedy has to be found out addressing the grievance of the patriarch faction that orthodox faction does not recognize the Patriarch of Antioch.  The present arrangement made at the intervention of the District Collector regarding conducting of religious services has to be continued for a period of 3 months or till appeal, if any is filed, whichever occurs earlier.

Dictated to the Confdl. Asst. transcribed by her, corrected and pronounced by me in the open court on this the 10^th day of February, 2014.

                             [seal]

                                                Sd/-

                             V.G.Anilkumar,

                   addl. District Judge.

//True Copy//

ANNEXURE P-19

 

BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM

 

R.F.A. No. 193 of 2014

[Against the judgment and decree in O.S. No.10/2003 of 1^st Additional District Court, Ernakulam dated 10.2.2014]

Appellants/Plaintiffs:

1. Mathai Varghese, S/o. Varghese, aged 65,

          Muthirakalayil House, Mattakuzhi,

Varikoli P.O. Pin: 682308.

2. T.M.Paulose, S/o. Mathai, aged 63, Thelakkat House, Varikoli P.O. Puthencruz Village, Pin: 682308.

3. C.E. Geevarghese, aged 48, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

4. M.C. Paulson, aged 58, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

5. T.T. Paulose, aged 48, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi,

          Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

6. T.V. Thomas, aged 54, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

7. M.K. Paulose, aged 55, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,      Pin: 682308.

8. Baby Joseph, aged 55, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

9. C.C. Philip, aged 55, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O.

          Puthencruz Village, Pin: 682308.

Respondents/Defendants:-

 

1. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

2. Binoy Varghese, aged 31, S/o. Varghese,

Ikkarayil House, Mattakuzhi, Varikkoli P.O., Pin:     682308.

3. C.A. Varghese, aged 60, S/o. Abraham,

          Chemmoth House, Chemmanadu,

          B.K. Puram.P.O.

4. Rev. Fr. Mathai, Vadakkineth, S/o.

          Vadakkineth House, Ezhakkaranad South P.O,

Maneed Village, Pin: 682308.

5. V.E.Thomas, S/o. Ittoop, aged 64 years,

          Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

6. P.A. George, S/o. Alexander, aged 61 years,

          Padiyil House, Mattakuzhi, Varikkoli P.O.,

          Kunnathunadu Taluk,

          Ernakulam Dist. Pin: 682308.

7. K.I. Yacob, S/o. Ishac, aged 59 years, Kizhippillil House, Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk,

          Ernakulam Dist., Pin: 682308.

8. V.V. Mathai, S/o. Varkey, aged 54 years,

Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, Kunnathunadu Taluk, Ernakulam Dist. Pin: 682308.

9. Ajosh George, S/o. George, aged 32 years, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

The address for service of processes and notices to the appellants are that of their counsel P. MARTIN JOSE, ELDHO CHERIAN, PRIJITH & THOMAS P. KURUVILLA, Advocates, M/s. S. SREEKUMAR ASSOCIATES, Chittoor Road, Cochin- 18.

MEMORANDUM OF REGULAR FIRST APPEAL FILED UNDER SECTION 96 AND ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE

1. The plaintiffs in a suit for declaration and injunction instituted after obtaining leave under Section 92 of Code of Civil Procedure are the appellants. The 7^th plaintiff died on 29.8.2010 and 6^th defendant died on 16.6.2013 during the pendency of suit and no legal heirs were impleaded.

2. The 1^st defendant St. Mary’s Orthodox Church, Varikoli is a constituent church of Malankara Orthodox Syrian Church, hereinafter referred to as a Malankara Church. The administration and management of the church is governed under Ext. A23, 1934 Constitution framed on 26.12.1934. The Apex Court in Moran Mar Baselios Catholicos v. Thukalan Paulo AIR 1959 SC 731 approved the validity of 1934 constitution. Thereafter, the Apex Court in PMA Metropolitan case (AIR 1995 SC 2001 reiterated the validity of 1934 Constitution and held that Parish Church shall be governed and administered under 1934 Constitution. As agreed by both the groups Apex Court ordered election of the Managing Committee of Malankara Church by convening the Malankara Association and appointed Justice Malimath as the Observer. The Malankara Association was held on 20.3.2002 and a Managing Committee was elected. The Apex Court held that the said election shall not be challenged in any court of law and directed to conduct periodical elections (2002(1) KLT Page 125).  After constitution of the Managing Committee the Episcopal Synod was held and Kandanadu Diocese was a divided into two for the purpose of administration as Kandanadu Diocese East and West. The 1^st defendant church comes under Kandanadu Diocese East and Dr. Thomas Mar Athanacious has been appointed as the Diocesan Metropolitan. By Ext. A8 Kalpana No.56 of 2002 the 4^th defendant was confirmed as Vicar of the Church.

3. The defendants 2 and 3 were elected as trustees as per 1934 Constitution only for a period of 1 year by the Parish Assembly held on 17.1.1999.  As per 1934 Constitution their term was only for one year. Despite the expiry of the term of trustee the 4^th defendant has not taken any steps to convene the parish assembly so as to elect trustees, Secretary and Managing Committee members. The accounts of the church since 1999 has not been audited or produced before the Parish assembly. There was mismanagement and misappropriation of the funds of the church. Hence, the suit was filed for a declaration that 1^st defendant church is governed by 1934 constitution, permanent prohibitory injunction restraining defendants 2 and 3 from functioning as trustees of the church, for a direction to the 4^th defendant to convene the parish assembly And to elect trustees in accordance with 1934 constitution. Thereafter, the plaint was amended incorporating a prayer that only a vicar / priest appointed under 1934 Constitution alone can conduct religious services in the church and for other reliefs.

4. The defendants 1 to 3 filed a joint written statement contending that 1^st defendant is not a church of Malankara Church and is not a public trust. It was contended that the church was established in 1928 by the people in the locality for religious worship as per the Jacobite faith and tradition. The church and parishioners are loyal to the Patriarch of Antioch and only accept the Hierarchy of priest ordained or loyal to the Patriarch of Antioch. The parishioners never adopted 1934 Constitution.  It was contended that parish assembly held on 30.6.2002 adopted Constitution of Yacobaya Suriyani Christiani Association Dr. Thomas Mar Athanacious was a Metropolitan loyal to the Patriarch of Antioch. He abandoned the faith and joined hands with the rival faith. The 4^th defendant deviated from the the fundamental faith of the church and he was removed from the post of Vicar.

5. The 4^th defendant filed written statement supporting the contention of the plaintiff. It was contended that defendants 2 and 3 and their supporters were always creating trouble in the church. They bought another priest by name Raju Kolapurath for conducting mass on 22-5-1999 which was obstructed by the parishioners which serious law and order situation. In May 2003 again there was law and order problems and under the mediation of District Collector both the groups were permitted to conduct religious services on separate timings.

6. The defendants 5 to 10 got impleaded and defendants 6 to 10 filed joint written statement adopting the contentions of defendants 1 to 3. It was contended that even though the Supreme Court had declared that Patriarch of Antioch is the spiritual supreme head and spiritual head of universal Orthodox Syrian Church and Malankara Orthodox Syrian Church is a division of the same, but the Malanakara Church is not accepting Patriarch of Antioch.  The Erstwhile Patriarch Group and churches loyal to Jacobite faith did not participated in the Malankara Association held on 20.3.2002 and formed a separate church. The additional 5^th defendant filed written statement adopting the contentions of defendants 6 to 10.

7. The court below framed issues and evidence was taken. PWs 1 and 2 were examined on the side of the plaintiffs and marked Exts. A1 to A24, DWs 1 to 3 were examined on the side of the contesting defendants and marked Exts. B1 to B29.  Exts. X1 to X11 were marked as court exhibits.

8. The court below held that the 1^st defendant church is to be administered under 1934 constitution. That defendants 2 and 3 can continue as trustees till new trustees are elected. It was further held that the 1934 Constitution is applicable to the 1^st defendant church and only a vicar or priest appointed under said constitution alone can conduct religious services in the church. It was further held that the plaintiffs are not recognizing the Patriarch of Antioch and the discretionary relief of declaration and injunction cannot be granted. It was further held that the superior courts have to be approached for a permanent solution. It was also held that the contention of defendants that parishioners adopted 2002 constitution cannot be accepted since the parish churches have no autonomy. The court below further held that 1^st defendant church is to be administered under 1934 Constitution but a proper remedy has to be found by addressing the grievance of Patriarch faction. On these findings the suit was dismissed, but directing the parties to maintain status quo for a period of 3 months.

9. The decision of the court below so far as it went against the appellants is wrong and unsustainable.

Being aggrieved by the decision of the court below so far as it went against the appellants this Regular First Appeal is being filed on the following among other:-

GROUNDS

          1)  The decision of the court below so far as it went against the appellants is wrong in law, facts and circumstances of the case and weight age of evidence.

          2)  The court below has not properly appreciated the evidence in its correct perspective nor applied the law correctly.

          3)  The court below having found that the 1^st defendant church has to be administered under 1934 Constitution and the claim of the contesting defendants that they adopted a new Constitution of 2002 and formed a new Sabha cannot be accepted, went wrong in dismissing the suit.

          4)  It is the definite case of the plaintiffs that the church is being governed and administered under 1934 Constitution. To prove the same Ext.X1 notice of election of representative to the meeting of Malankara Association held on 31.12.1970, Ext.X2 authorisation for participation in the Malankara Association Ext.X3 attendance register of Malankara Association held on 28.12.1965; Ext.X4 Register dated 16.9.1959 were produced.  Besides Exts. A1 and A2 letter, A5 to A18 Kalpana and Ext.A21 to A22(b) were marked to prove that the church is being administered under 1934 Constitution. The court below has failed to analyze and appreciate the oral and documentary evidence before concluding whether church is being administered under 1934 Constitution. The only contention of the contesting defendants was that in 2002 they adopted a new constitution of “Yacobaya Suriyani Christiani Association’.  They don’t dispute the fact that till such time the church was governed under 1934 Constitution. Moreover, after the decision of Apex Court in Moran Mar Basalious Catholicos AIR 1959 SC 731 unity and harmony prevailed in the church and all the churches including the 1^stdefendant church adopted 1934 constitution which is an admitted fact as discernible from the decision of Apex Court in PMA Metropolitan case.

          5)  The court below went wrong in holding that the Malankara church has not been recognizing Patriarch of Antioch which hurts the religious sentiments of parishioners who consider Patriarch of Antioch as religious superior head. The said finding is totally perverse. Clause 1 of Ext. A23 constitution declares that Patriarch of Antioch is the spiritual head of Malankara church. It is an admitted fact that after the decision of the Supreme Court in Moran Mar Basalios Catholicos case AIR 1959 SC 731 the then Patriarch accepted 1934 Constitution. Moreover, 1934 Constitution was framed by the Malankara Association constituted by the Patriarch himself in 1876 at Mulamthuruthy Synod. Clause 101 of Ext. a23 constitution provides that the Malankara Church will accept only a patriarch canonically ordained with the co-operation of Catholicos. When the Apex Court accepted and approved 1934 Constitution as such it cannot be said that clause 101 of the Constitution was not considered by the Supreme Court.

          6)  One of the contentions before the Apex Court was that Clause 71 of the Constitution was invalid not representing the true democratic spirit of the constitution. Hence, Clause 71 was amended by the Apex Court. Even at that time, there was no contention that Clause 101 was invalid. The court below has committed a grave error of jurisdiction in holding that Clause 101 of the Constitution was not considered by the Apex Court.

          7)  The Apex Court having held that after the revival of the Catholicate in 1912 all spiritual powers of the Patriarch vested in the Catholicos. In P.M.A. Metropolitan case the Apex Court in page 2070 held thus:-  “It may be that by conferring upon the Catholicos the powers of ordaining Metropolitans, consecrating Moran and to exercise other spiritual powers over Malankara church, the Patriarch may not have denuded himself completely of the said powers which he enjoyed till then. But, in view of the fact that he had himself created another centre power in India with the aforesaid powers, it would be reasonable to hold that thereafter the Patriarch cannot exercise those powers unilaterally i.e. without reference to Catholicos. He can exercise those powers only in consultation with Catholicos”.  It was further held that “The Patriarch power to ordain the Metropolitans now subject to the Constitution of 1934”.  Thus, in view of the authoritative pronouncement of Apex Court, the Patriarch cannot ordain any prelates without consulting the Catholicos. The present incumbent to the post of Patriarch instrumental in the formation of new church in 2002 and ordaining prelates and Bishops without consultation with Catholicos.  In the written statement the specific contention taken was that only prelates ordained by Patriarch alone is acceptable to them. When the Apex Court held that Patriarch can ordains prelates only with reference to Catholicos and in accordance with 1934 Constitution, the stand taken by the defendants necessarily has to be held as challenge of the law laid down by the Apex Court. Hence, it will illegal and unjust to thrust upon a Patriarch who deliberately violates the decision of Apex Court in P.M.A. Metropolitan case.

          8)  It is an admitted fact that the present Patriarch is the one who is not canonically ordained with the co-operation of the Catholicos. The present Patriarch Ignathios Zakha Iwas-I was ordained on 14.9.1980, but without the concurrence of the Catholicos. Moreover the present person holding the post of Patriarch was only interested in creating a division in the church.  This is evident from the fact that the present Patriarch himself has been ordaining prelates without consultation with Catholicos and not in accordance with 1934 Constitution. Such ordination was done to those who disassociated from Malankara Church and formed a separate church in 2002.   Hence, the finding that the Malankara Church is not recognizing the Patriarch of Antioch is baseless and unfounded.

          9)  The Apex Court in P.M.A. Metropolitan case held further at page 2040:-

          “The result of the creation of Catholicate of East with power to ordain Metropolitan and perform all those functions which could be performed by Patriarch of Antioch was that even the spiritual power which was held to be vested in him in earlier judgment stood reduced to vanishing point”.

          The Apex Court at page 2038 held thus:-

          “It has already been indicated that in consequences of Ext. A14 the Kalpana issued by Abdul Messiah the entire power spiritual or temporal which was exercised by the Patriarch of Antioch was conferred on the Catholicos of East.  The only relation which was to be observed in future was the communion of the two.

          The Apex Court having been decided the relationship between Patriarch and Catholicos the court below went wrong in relegating the parties to superior court to resolve the said dispute.

          10)  There was no issue with regard to the validity of ordination of Patriarch. The defendant has no contention that they being members of Malankara Church has accepted the Catholicos and 1934 Constitution.

          11)  The finding that the plaintiffs are not entitled to discretionary relief of declaration since they are not accepting Patriarch of Antioch is totally perverse and without application of mind.

          12)  The Apex Court in P.M.A. Metropolitan case at page 2071 held thus:-

          “The 1934 Constitution was approved at a validly convened meeting of Malankara Association, which Association was created by the Patriarch himself under the Resolution of Mulamthuruthy Synod.  The defendants in the present suit [Patriarch Group] cannot question its legality and validity in view of the acts and conduct of the patriarch and the members of his group subsequent to the judgment of this court in AIR 1959 SC 31”.

Further the Apex Court held:-

“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”.

On the basis of the authoritative pronouncement of the Apex Court on the validity and applicability of 1934 Constitution and the voluminous documents produced to establish that 1^st defendant church is being administered under 1934 Constitution the court below went wrong in holding that church is not administered under 1934 Constitution.

          13)  The court below went wrong in holding that defendants 2 and 3 can continue as trustees till an election is conducted. According to them after 2002, election was conducted in accordance with 2002 Constitution.  Thus, they defied 1934 Constitution and the judgment of the Apex court and not entitled to continue.

          14)  The trial court after holding that the decision in PMA Metropolitan case is a binding precedent and binding on 1^st defendant church and that the parishioners cannot disassociate from Malankara Church but went wrong in declining the reliefs sought for.

          15)  The court below went wrong in holding that the superior courts have to be approached for a permanent solution which is uncalled for and unwarranted.

          16)  The finding that there was no mismanagement of the church and its properties is perse wrong and illegal since the defendants themselves claims that they are not bound by 1934 Constitution.

          17)  The court below having found that 1^st defendant church is bound by PMA Metropolitan case and is to be administered under 1934 Constitution and the vicar/priest appointed under 1934 Constitution alone are entitled to conduct religious services in the church went wrong in dismissing the suit.

          18)  The court below ought to have decreed the suits as prayed for.

          Therefore, it is humbly prayed that this Hon’ble Court may be pleased to allow the appeal, set aside judgment and decree of the court below so far as it went against the appellants and decree the suit as prayed for.

VALUATION

Valuation as in the court below                     :         Rs.4,000.00

Court fees payable under Section 52 of the   :

Kerala Court Fees & Suits Valuation Act.      :         Rs.100.00

Dated this the 4^th day of March, 2014.

1. MARTIN JOSE,

                                                Advocate

 

 

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.623 of 2014

in

R.F.A. No.193 of 2014

Mathai Varghese & others                                        :    Appellants

St. Mary’s Orthodox Church, Varikoli & others        : Respondents

AFFIDAVIT

          I, E. Geevarghese, aged 48, S/o. Elias, Chennikkattil House, Mattakuzhi, Varikoli. P.O., Thiruvaniyoor Village, Pin: 682308, do hereby solemnly affirm and state as follows:-

1. I am the 3^rd appellant in the above appeal and 3^rd petitioner in the accompanying petition. I am conversant with the facts of the case. I am authorized to swear this affidavit on behalf of other petitioners as well.

2. We have been advised and we believe that there are good grounds for the appeal being allowed in our favour. Because of the faction fight the District Administrative intervened and an agreement was entered into a copy of which is produced and marked as Annexure A for reference. Both the factions have been administering the religious and temporal matters of the church on the turn allotted to them. The court below while dismissing the suit, directed to maintain the status quo.  It is submitted that both the groups are following the Annexure A decision during the pendency of the suit and thereafter. It is just and necessary that petitioners may be permitted to conduct religious and temporal affairs in the church in the turn allotted to them as per Annexure A. Otherwise, it will cause irreparable loss and hardship.

          Therefore, the accompanying petition may be allowed.

          All facts stated above are true.

          Dated this the 4^th day of March, 2014.

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me in my office at Ernakulam on this the 4^th day of March 2014.

1. MARTIN JOSE,

                              Advocate

//True Copy//

ANNEXURE P-20

 

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.623 of 2014

in

R.F.A. No.193 of 2014

Petitioners/Appellants:-

1. Mathai Varghese, S/o. Varghese, aged 65,

          Muthirakalayil House, Mattakuzhi,

Varikoli P.O. Pin: 682308.

2. T.M.Paulose, S/o. Mathai, aged 63, Thelakkat House, Varikoli P.O. Puthencruz Village, Pin: 682308.

3. C.E. Geevarghese, aged 48, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

4. M.C. Paulson, aged 58, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

5. T.T. Paulose, aged 48, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

6. T.V. Thomas, aged 54, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

7. M.K. Paulose, aged 55, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,      Pin: 682308.

8. Baby Joseph, aged 55, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

9. C.C. Philip, aged 55, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O. Puthencruz Village,

Pin: 682308.

Respondents/Defendants:-

 

 

1. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

2. Binoy Varghese, aged 31, S/o. Varghese,

Ikkarayil House, Mattakuzhi, Varikkoli P.O., Pin: 682308.

3. C.A. Varghese, aged 60, S/o. Abraham,

          Chemmoth House, Chemmanadu, B.K. Puram.P.O.

4. Rev. Fr. Mathai, Vadakkineth, S/o.

          Vadakkineth House, Ezhakkaranad South P.O,

Maneed Village, Pin: 682308.

5. V.E.Thomas, S/o. Ittoop, aged 64 years, Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

6. P.A. George, S/o. Alexander, aged 61 years,

          Padiyil House,

Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist. Pin: 682308.

7. K.I. Yacob, S/o. Ishac, aged 59 years, Kizhippillil House, Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

8. V.V. Mathai, S/o. Varkey, aged 54 years,

Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, Kunnathunadu Taluk, Ernakulam Dist. Pin: 682308.

9. Ajosh George, S/o. George, aged 32 years, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

 

PETITION FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE

 

For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon’ble Court may be pleased to permit the petitioners to conduct religious and temporal affairs of 1^st respondent church during the turn allotted to them as per Annexure-A, pending disposal of appeal.

Dated this the 4^th day of March, 2014.

1. MARTIN JOSE,

                          Advocate

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.1286 of 2014

in

R.F.A. No.193 of 2014

Fr. Mathai Vadakkinedath          :         Petitioner/4^th respondent

Mathai Varghese and others      :         Respondents/Appellants &

                                                          Respondents

AFFIDAVIT

 

          I, Fr. Mathai Vadakkinedath, S/o. V.M. Kuriachan, aged 50 years, Vadakkinedath House, Ezhakkaranad South P.O, Maneed Village, Muvattupuzha Taluk, Ernakulam District, do hereby solemnly affirm and state as follows:-

1. I am the 4^th respondent in the above appeal and petitioner in the accompanying application for injunction. I know the facts of the case.

2. Respondents 1 to 9 herein are the appellants in the above appeal and respondents 10 to 17 herein are the respondents 1 to 3 and 5 to 9 in the above appeal. The above appeal is filed by the plaintiffs in O.S. No.10/2003 on the file of the First Additional District Court, Ernakulam. The 7^th plaintiff died on 29.8.2010 during the pendency at the suit. I was arrayed as the 4^th defendant in the suit.  Respondents 10 to 17 herein are the other defendants in the suit. The 6^th defendant expired on 16.6.2013 during the pendency of the suit.
3. The suit was instituted under Section 92 read with Order I Rule 8 of the Code of Civil Procedure seeking the following reliefs:-

1. a) “Decree of declaration that the 1^st defendant church is governed by 1934 Constitution as upheld by the Supreme Court.
2. b) A decree of declaration that the defendants 2 and 3 have no right or authority to claim the status of trustees of the 1^st defendant church.
3. bb) A decree of permanent prohibitory injunction restraining defendants 2 and 3 or their men or agents or anybody claiming under them from bringing any Vicar/Priest for conducting religious ceremonies in 1^st defendant church who are not appointed by the Diocese Metropolitan in accordance with 1934 Constitution.

          bbb) A decree of permanent prohibitory injunction restraining defendants 2 and 3 and this men or agents or anybody claiming under them from causing any obstruction to 4^th defendant or his successors appointed under 1934 constitution by the Diocesan Metropolitan from conducting religious ceremonies in the 1^st defendant church and the cemetery attached thereto.

1. c) Pass a decree of permanent prohibitory injunction restraining defendants 2 and 3 from functioning as trustees of the 1^st defendant church.
2. d)      A decree of mandatory injunction directing the 4^th respondent to call for immediate pothuyogam of 1^st defendant church and conduct election of new managing committee including trustees and secretary in accordance with 1934 Constitution.”

4. I was functioning as the Vicar of the church appointed by H.G. Dr. Thomas Mar Asthanasious and was officiating religious services in the 1^st defendant / 10^th respondant church, St. Mary’s Orthodox Church, Varikoli. While I was officiating as Vicar of the church, during 2003, dispute between two factions-Patriarch fraction and Orthodox fraction-arose in the Church and account of the dispute, the District Administration interfered in the matter and the Church happened to be closed to be sometime. Thereafter, on 26.03.2004, the District Collector convened a meeting of the factions and an agreement was arrived for opening the Church for religious worship for both the groups as per the time schedule to be fixed by the Revenue Divisional Officer. Thereafter, at the meeting dated 29.03.2014, the time schedule for the conduct of religious services for the rival groups was settled. I had participated in that meeting as the Vicar of the Orthodox faction in the Church. Again the Revenue Divisional Officer as also convened another meeting on 15.03.2005 and in that meeting also; I represented the Orthodox factions as Vicar of the Church. On 30.04.2007 also, another meeting was also convened by the District Collector and in that meeting also, I participated and represented the Orthodox faction in the Church.

5. I was ordained as a Priest in the year 1994 by H.G. Dr. Thomas Mor Athanasius. After the Supreme Court judgment pertaining to the Church dispute was pronounced by the Apex Court in the year 1995 and subsequent orders in the years, 1996 and 1997, including the order to the effect that all the religious dignatories should swear allegiance to the 1934 Malankara Orthodox Syrian Church Constitution, H.G. Dr. Thomas Mor Athanasius had sworn allegiance to the 1934 Constitution. After the Apex Court’s judgment, I remained loyal to H.G. Dr. Thomas Mor Athanasius and was functioning under him as a Priest loyal to him and also showing allegiance to the 1934 Constitution. Even now, I stick to the same stand which I have taken after the Apex Court judgment, even though I was ordained as a Priest of the Jacobite faction by H.G. Dr. Thomas Mor Athanasius, as stated above, while he was also functioning as a Metropolitan of the Jacobite faction.

6. I had appeared in O.S. No.10/2003 and filed a written statement supporting the plaint averments and the relief sought for in the plaint. The suit was instituted against four defendants only and I was arrayed as the 4^th defendant. Defendants 1 to 3 contested the matter and sought for dismissal of the suit. The plaintiffs amended the plaint, incorporating additional reliefs also. Thereupon, additional defendants 5 to 10 got themselves impleaded and they also contested the suit and prayed for dismissal of the suit. The original defendants 1 to 3 also, after the amendment of the plaint, had filed additional written statement. One of the contentions of the contesting defendants was to the effect that as the Orthodox Syrian Church and the plaintiffs in the suit do not accept the Patriarch of Antioch as the Supreme Spiritual Head of the Universal Orthodox Syrian Church and that the Orthodox Syrian Church in India is only a division of the same, as held by the Apex Court in its judgment reported in AIR 1995 SC 2001, the plaintiffs are not entitled for the decree of declaration and injunction sought for in the plaint. The learned Trial Judge accepted this contention of the contesting defendants and on 10.2.2014, dismissed the suit. The above appeal is filed by the plaintiffs challenging the decree of the judgment passed by the trial court in O.S. No.10/2003.

7. As submitted earlier as per the decision of the District Administrator, I was conducting religious services in the Church on alternative weeks, during the time schedule fixed for the Orthodox faction from 2003 onwards. It is also submitted that, for the last 3 years, Fr.Alias Cherukad also was officiating religious services for the Orthodox faction during the time schedule on alternative weeks. It is submitted that 04.05.2014, Sunday, was my weekly turn. On that day during the Holy Mass, while delivering my sermon, I explained the verdict passed by the Honourable Sub Court and its finding that going by the Apex Court’s judgment reported in AIR 1995 SC 2001, the Orthodox Church cannot disown the Patriarch of Antioch as the Apex  Court has in its judgment has held that Patriarch of Antioch is the Supreme Head of Universal Orthodox Syrian Church and that Malankara Orthodox Syrian Church is a division of the same. During the course of my sermon, I also pointed out that H.G. Dr. Thomas Mor Athanasius himself has said so in an Article written by him in a Church Magazine.

8. As a defendant in the above suit, I am bound by the judgment and findings of the Sub Court and the Apex Court and I accept the same also. But, the open admission and announcement of these facts made by me was not acceptable to respondents 1 to 9 herein, who are the plaintiffs in the suit, and therefore, thereafter respondents 1 to 9 and their supporters obstructed me in conducting the Holy Mass and other religious services in the Church on 18.5.2014 on my weekly turn, on the baseless allegation that I have switched over my loyalty to the Jacobite faction. On 18.5.2014, I was physically obstructed even from entering the Church and they brought another Priest and the Holy Mass was conducted by that Priest. They have also openly declared that they will obstruct me from conducting religious services in the Church, alleging that I have switched my loyalty. This allegation is raised by respondents 1 to 9 herein, the plaintiffs in the suit pointing out the opinion expressed by me during the Sunday Sermon on 4.5.2014.

9. In this connection, it is respectfully submitted that I have not switched over my loyalty to the Jacobite Church. On 4.5.2014, I have only expressed the opinion to the effect that in the light of the Apex Court judgments and the judgment in O.S. No.10/2003, the Orthodox Church of which I am also a Priest, also cannot disown the Patriarch of Antioch as disowning or non-acceptance of Patriarch of Antioch will amount to disowning one part of the judgment of the Apex Court to the effect that Patriarch of Antioch is the Supreme Spiritual Head of the Church and that Malankara Orthodox Syrian Church is only a division of the same. Moreover, it is to be noted that the Trial Judge also has considered this aspect and dismissed the suit for the reason that the Orthodox Church does not approve or accept the finding of this part of the Apex Court Judgment and is seeking declaration with respect to the other part, regarding the applicability of 1934 Constitution alone.

10. Now, the respondents 1 to 9, the plaintiffs in the above suit and their supporters are obstructing me from conducting Holy Mass and the other religious services in the church on alternative weeks on the basis of the time schedule fixed by the District Administration. In fact, they have no right or authority to obstruct me from conducting services in the Church. It is also submitted that I have filed written statement in the suit supporting the plaint claims and reliefs sought for in the plaint. Therefore, the Jacobite faction people are in enemical terms to me and the allegations raised by the plaintiffs in the suit to the effect that I have switched over my loyalty to the Jacobite Church is utterly false. The only reason for preventing me from conducting religious services in the Church is the open sermon made by me on 4.5.2014.
11. It is submitted that the only source of my income is the salary which I am receiving from the Diocesan Bishop, H.G. Dr. Thomas Mor Athanasius. It is submitted that I am also conducting religious services in St. Mary’s Orthodox Syrian Church, Aroor on alternative weeks and for that also I am getting salary from the Diocesan Bishop. I have no other source of income for my maintenance and for the maintenance of my family members.

12. It is also submitted that this Hon’ble Court on 14.3.2014 has passed an interim order in the above appeal to the following effect.

“Heard.  The direction the present arrangement made at the intervention of the District Collector regarding conducting of religious services has to be continued, issued in the impugned judgment shall continue to be in force until further orders”.

It is therefore, submitted that the obstruction caused by the appellants in conducting religious services by me is illegal and the same is violative of the above said interim order passed by this Hon’ble Court in the above appeal. At any rate, I am entitled to conduct religious services in the Church on alternative weeks and also entitled to obtain salary for the same.

13. As the appellants, who are respondents 1 to 9 herein, and their men are obstructing me from conducting religious services in the church on the basis of the time schedule fixed by the District Administration which is allowed to be continued as per the interim order mentioned above, I am constrained to file the accompanying application for injunction and it is humbly prayed that the same may kindly be allowed.

          Hence, it is prayed that the above petition may be allowed.

All facts stated above are true and correct.

Dated this the 10^th day of June, 2014.

 

Fr. Mathai Vadakkinedath

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me on this the 10^th day of June 2014.                                in my office at Ernakulam.

                                                DINESH R. SHENOY

ADVOCATE

//True Copy//

ANNEXURE P-21

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

Present:

THE HONOURABLE MR. JUSTICE BABU MATHEW P. JOSEPH

Friday, the 14^th day of March 2014 / 23^rd Bhalguna, 1935

I.A. 623/2014 IN RFA No.193/2014

O.S. 10/2003 of the I ADDL. DISTRICT COURT, ERNAKULAM.

PETITIONERS/APPELLANTS:

1. Mathai Varghese, S/o. Varghese, aged 65,

          Muthirakalayil House, Mattakuzhi,

Varikoli P.O. Pin: 682308.

2. T.M.Paulose, S/o. Mathai, aged 63, Thelakkat House, Varikoli P.O. Puthencruz Village, Pin: 682308.

3. C.E. Geevarghese, aged 48, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

4. M.C. Paulson, aged 58, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

5. T.T. Paulose, aged 48, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

6. T.V. Thomas, aged 54, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

7. M.K. Paulose, aged 55, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,      Pin: 682308.

8. Baby Joseph, aged 55, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village, Pin: 682308.

9. C.C. Philip, aged 55, S/o. Cherian, Chakkyattil House,    Varikoli P.O. Puthencruz Village, Pin: 682308.

 

RESPONDENTS/DEFENDANTS:

1. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

2. Binoy Varghese, aged 31, S/o. Varghese,

Ikkarayil House, Mattakuzhi, Varikkoli P.O., Pin: 682308.

3. C.A. Varghese, aged 60, S/o. Abraham,

          Chemmoth House, Chemmanadu, B.K. Puram.P.O.

4. Rev. Fr. Mathai, Vadakkineth,

          Vadakkineth House, Ezhakkaranad South P.O,

Maneed Village, Pin: 682308.

5. V.E.Thomas, S/o. Ittoop, aged 64 years, Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

6. P.A. George, S/o. Alexander, aged 61 years,

          Padiyil House,

Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist. Pin: 682308.

7. K.I. Yacob, S/o. Ishac, aged 59 years, Kizhippillil House, Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

8. V.V. Mathai, S/o. Varkey, aged 54 years,

Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, Kunnathunadu Taluk, Ernakulam Dist. Pin: 682308.

9. Ajosh George, S/o. George, aged 32 years, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist., Pin: 682308.

Application praying that in the circumstances stated in the affidavit filed therewith the High Court be pleased to permit the petitioners to conduct religious and temporal affairs of 1^st respondent church during the turn allotted to them as per Annexure-A pending disposal of appeal.

This application coming on for orders upon perusing the application and the affidavit filed in support thereof, and upon hearing the arguments of M/s. P. MARTIN JOSE, ELDHO CHERIAN, P. PRIJITH & THOMAS P. KURUVILLA, Advocates for the petitioners, MR. PAUL KURIAKOSE, Advocate for R4 (B/O) and of Mr. K.J. KURIACHAN, Advocate for R6(B/O), the court passed the following:-

 

O R D E R

                   Heard. The direction that the present arrangement made at the intervention of the District Collector regarding conducting of religious services has to be continued, issued in the impugned judgment shall continue to be in force until further orders.

14-03-2014.                                                                     sd/-    BABU MATHEW P. JOSEPH,

          JUDGE

 

/true copy/

          15-3-2014

                                                                   Sd/-

ASSISTANT REGISTRAR

 

 

 

 

//True Copy//

          ANNEXURE P-22

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No. 1286         of 2014

in

R.F.A. No.193 of 2014

Petitioner/4^th Respondent:-

Fr. Mathai Vadakkinedath, S/o. V.M. Kuriachan, aged 50 years, Vadakkinedath House, Ezhakkaranad South P.O, Maneed Village, Muvattupuzha Taluk, Ernakulam District.

 

Respondents/Appellants:-

 

1. Mathai Varghese, S/o. Varghese,

          Muthirakalayil House, Mattakuzhi,

Varikoli P.O. Pin: 682308.

2. T.M.Paulose, S/o. Mathai, Thelakkat House, Varikoli P.O. Puthencruz Village.

3. C.E. Geevarghese, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

4. M.C. Paulson, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

5. T.T. Paulose, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

6. T.V. Thomas, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

7. M.K. Paulose, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

8. Baby Joseph, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,

9. C.C. Philip, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O. Puthencruz Village,

10. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

11. Binoy Varghese, S/o. Varghese,

Ikkarayil House, Mattakuzhi, Varikkoli P.O.

12. C.A. Varghese, S/o. Abraham,

          Chemmoth House, Chemmanadu, B.K. Puram.P.O.

13. V.E.Thomas, S/o. Ittoop, Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist.

14. P.A. George, S/o. Alexander, Padiyil House,

Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist.

15. K.I. Yacob, S/o. Ishac, Kizhippillil House, Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist.

16. V.V. Mathai, S/o. Varkey, Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, Kunnathunadu Taluk, Ernakulam Dist.

17. Ajosh George, S/o. George, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam.

INJUNCTION PETITION FILED BY DINESH. R. SHENOY, COUNSEL FOR THE PETITIONER/4^TH RESPONDENT UNDER ORDER 39 RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE

 

For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon’ble Court may be pleased to restrain respondents 1 to 9, their men and agents from obstructing the petitioner, who is the 4^th respondent in the above appeal, from conducting religious services in the 10^th respondent church herein, which is the 1^st respondent in the above appeal, during the weekly turn and time schedule fixed by the District Administration and also as per the interim order dated 14.3.2014 passed by this Hon’ble Court in the above appeal until further orders, in the interest of justice.

Dated this the 10^th day of June, 2014.

                                                DINESH R. SHENOY

                                      Counsel for the Petitioner

//True Copy//

 

 

(ANNEXURE P-23)

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

I.A. No.1431 of 2014

in

R.F.A. No.193 of 2014

Fr. Viju Ealias                                     :         Petitioner/

10^th addl. respondent

          [to be impleaded]

Mathai Varghese and others               :     Respondents/

                                                            Appellants & Respondents

 

AFFIDAVIT IN SUPPORT OF THE PETITION FOR IMPLEADING

 

          I, Fr. Viju Ealias, aged 32 years, S/o. T.V. Ealias, Thannikuzhiyil, Vettickal, Mulanthuruthy Village, Kanayannur Taluk, Ernakulam District, do hereby solemnly affirm and state as follows:-

1. I am the petitioner in the above interlocutory application. I am not a party in the above appeal. I know the facts of this case and am competent to swear hereto.

2. The above appeal is filed by respondents 1 to 9 herein challenging the judgment and decree dated 10.2.2014 in O.S. No.10 of 2003 on the files of the 1^st Additional District Court, Ernakulam. The 13^th respondent herein was the Vicar of the 10^th respondent church appointed by the Diocesan Metropolitan of Kandanad East Diocese of the Malankara Orthodox Syrian Church appointed in accordance with Malankara Sabha Constitution of 1934.

3. After the institution of the above appeal, Dr. Thomas Mar Athanasius, the Diocesan Metropolitan of Kandanad East Diocese issued Kalpana No.16/2014 dated 28.3.2014 transferring the 13^th respondent herein and appointing me as the Vicar of the 10^th respondent church. A true Photostat copy of the said Kalpana No.16/2014 dated 28.3.2014 is produced herewith marked as Exhibit P1.  Accordingly, I have assumed the office of the Vicar of the 10^th respondent church in the place of the 13^th respondent.

4. In view of the disputes between the Patriarch faction and the Orthodox faction in the 10^th respondent church, the District Collector, Ernakulam had convened a meeting of both factions on 29.3.2004 and an agreement was arrived at stipulating separate time schedules for every day for both groups by the Revenue Divisional Officer. Accordingly, the Orthodox faction as well as Patriarch faction had been adhering to the said time schedule since then. The 13^th respondent herein was officiating in the 10^th respondent church as its Vicar and had been conducting religious functions in the church in the time scheduled earmarked for the Orthodox faction, until he was transferred as per Exhibit P1.

5. After the issuance of Exhibit P1, the 13^th respondent switched over his allegiance to the Patriarch faction from the Orthodox faction. It is submitted that, the 13^th respondent is conducting religious services in the 10^th respondent church during the time stipulated for the Patriarch faction since the issuance of Exhibit P1, defying the mandate of Exhibit P1 Kalpana. In the above circumstances, the Diocesan Metropolitan as per Kalpana No.22/2014 dated 10.5.2014 has removed the 13^th respondent herein from performing any duty connected with the office of the Priest of the Malankara Orthodox Syrian Church. A true Photostat copy of the said Kalpana No.22/2014 dated 10.5.2014 is produced herewith marked as Exhibit P2.

6. In view of my appointment as the Vicar of the 13^th respondent church appointed by the Diocesan Metropolitan of the Kandanad East Diocese of the Malankara Orthodox Church in accordance with the Malankara Sabha Constitution of 1934 I am a necessary and proper party to the above appeal. Moreover, in view of the switching over of allegiance of the 13^th respondent to the Patriarch faction it is necessary that I am impleaded as an additional respondent in the above appeal in order to protect the interests of the Malankara Orthodox Syrian Church. In the above circumstances, it is just and necessary that I am made an additional 10^th respondent in the above appeal. A separate petition for the above purpose is filed herewith which may kindly be allowed in the interests of justice. Otherwise, I shall suffer irreparable injury, loss and injustice.

          All facts stated above are true.

          Dated this the 17^th day of June 2014.

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me on this the 17^th day of June 2014                                atn my office at Ernakulam.

                                                Paul Kuriakose. K.

Advocate

//True Copy//

ANNEXURE P-23

 

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.1431 of 2014

In

R.F.A. No.193 of 2014

Between:

Fr. Viju Ealias, aged 32 years, S/o. T.V. Ealias, Thannikuzhiyil, Vettickal, Mulanthuruthy Village, Kanayannur Taluk, Ernakulam District.

                                      … Petitioner/

10^th addl. Respondent

[to be impleaded]

 

And:

1. Mathai Varghese, S/o. Varghese,

          Muthirakalayil House, Mattakuzhi,

Varikoli P.O. Pin: 682308.

2. T.M.Paulose, S/o. Mathai, Thelakkat House, Varikoli P.O. Puthencruz Village.

3. C.E. Geevarghese, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

4. M.C. Paulson, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

5. T.T. Paulose, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

6. T.V. Thomas, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

7. M.K. Paulose, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

8. Baby Joseph, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,

9. C.C. Philip, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O. Puthencruz Village,

10. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

11. Binoy Varghese, S/o. Varghese,

Ikkarayil House, Mattakuzhi, Varikkoli P.O.

12. C.A. Varghese, S/o. Abraham,

          Chemmoth House, Chemmanadu, B.K. Puram.P.O.

13. Fr. Mathai Vadakkinedath, S/o. V.M. Kuriachan, aged 50 years, Vadakkinedath House, Ezhakkaranad South P.O, Maneed Village, Pin: 682308.

14. V.E.Thomas, S/o. Ittoop, Velloor House,

Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam Dist.

15. P.A. George, S/o. Alexander, Padiyil House,

Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist.

16. K.I. Yacob, S/o. Ishac, Kizhippillil House, Mattakuzhi, Varikkoli P.O., Kunnathunadu Taluk, Ernakulam Dist.

17. V.V. Mathai, S/o. Varkey, Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Aikkaranadu South Village, Kunnathunadu Taluk, Ernakulam Dist.

18. Ajosh George, S/o. George, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz Village, Kunnathunadu Taluk, Ernakulam.

                                                                                                                                       …..Appellants & respondents

 

 

Petition submitted by Advocate Paul Kuriakose. K., for and on behalf of the above named petitioner, under Section 151 read with Order I, Rule 10(2) of the Code Of Civil Procedure

 

For the reasons stated in the affidavit filed herewith, it is humbly prayed that this Hon’ble Court may be pleased to implead the petitioner herein as the additional 10^th respondent in the above appeal, in the interests of justice.

Dated this the 17^th day of June, 2014.

                                      Counsel for the Petitioner

//True Copy//

 

ANNEXURE P-24

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

I.A. No.1286 of 2014

in

R.F.A. No.193 of 2014

Fr. Mathai Vadakkinedath                   :         Petitioner/4^th                                                                             respondent

Mathai Varghese and others               :         Respondents

COUNTER AFFIDAVIT FILED BY RESPONDNETS 1 TO 9 IN THE ABOVE I.A.

 

          I,  E. Geevarghese, S/o, Elias, aged 48, Chennekkattil House, Mattakuzhi, Varikkoli P.O., Thiruvaniyoor, do hereby solemnly affirm and state as follows:-

1. I am the 3^rd appellant in the above appeal and 3^rd respondent in the I.A.  I am conversant with the facts of the case. I am authorized to swear this counter affidavit on behalf of the respondents 1 and 2 and 4 to 9 as well.
2. All the averments in the affidavit in support of the petition save those that are specifically admitted hereunder are denied.
3. It is submitted that the 10^th respondent church is a constituent church of Malankara Orthodox Syrian Church and is governed and administered under 1934 Constitution. The petitioner was the Vicar of the 10^th respondent church appointed by the Diocesan Metropolitan in accordance with 1934 Constitution. The petitioner was the Asst. Vicar of St. Mary’s Church, Aroor appointed by Diocesan Metropolitan in accordance with 1934 Constitution.
4. It is submitted that the Diocesan Metropolitan by Kalpana No.16 of 2014 dated 28.3.2014 transferred the petitioner as well as Assistant Vicar Fr. Alias Cherukattil with effect from 27.4.2014 from the 10^th respondent church. In their place Fr. Viju Elias Thannikuzhy has been appointed as the Vicar and Fr. Joy Thomas, Muttathukattil as Asst. Vicar of 10^th respondent church, a true copy of Kalpana No.16/04 is produced and marked as Annexure A.  The transfer order took effect on 27.4.2014 and the newly appointed Vicar and Asst. Vicar took charge with effect from 27.4.2014 and has been discharging religious services in the church. The petitioner was also transferred from St. Mary’s Church, Aroor also.  The petitioner accepted the transfer order transferring him from St. Mary’s Church, Aroor.  The petitioner was appointed as Vicar of Ooramana Church.
5. The petitioner refused to accept Annexure A transfer order defected from Malankara Orthodox Syrian Church and joined in a new Sabha called Yacobaya Suriyani Christiani Sabha formed in the year 2002 and started conducting religious services during the time allotted to them in the 10^th respondent church.  The petitioner also refused to join in Ooramana church. Since the petitioner has committed grave dereliction of duty and violated the Kalpana he was suspended from the church by Kalpana No.22 of 2014 dated 10.5.2014, a true copy of which is produced and marked as Annexure B.
6. It is submitted that in the time allotted to the Malankara Orthodox Church, the newly appointed Vicar and Asst. Vicar are conducting religious services. Now the petitioner is conducting religious services in the 10^th respondent church along with the Vicar of Yocobaya Suriyani Christiani Sabha. Since the petitioner ceased to be a Vicar in 10^th respondent church of Malankara Orthodox Syrian Church he is not entitled to an order of temporary injunction.

          All facts stated above are true.

          Dated this the 19^th day of June 2014.

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me on this the 19^th day of June 2014.                                in my office at Ernakulam.

1. MARTIN JOSE

ADVOCATE

 

 

ANNEXURE P-25

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.1431 of 2014

In

R.F.A. No.193 of 2014

Fr. Mathai Vadakkinedath                   :         Petitioner/4^th respondent

Vs.

Martin Varghese & ors.             :         Respondents

COUNTER AFFIDAVIT FILED ON BEHALF OF THE 13^TH RESPONDENT IN THE I.A. AND 4^TH RESPONDENT IN THE R.F.A.

          I, Fr. Mathai Vadakkinedath, S/o. V.M. Kuriachan, aged 51 years, residing at Vadakkinedath House, Ezhakkaranad South Post, Ernakulam District, do hereby solemnly affirm and state as follows:-

1. I am the 4^th respondent in the above appeal and the 13^th respondent in the above application seeking impleadment. It may be seen that I have already filed I.A. 1286/2014 seeking an injunction against any obstruction on my conducting the prayers and rites as a Vicar of St. Mary’s Church, Varikkoly owing allegiance to Orthodox faction, by respondents 1 to 9 therein.
2. The application IA 1286/2014 was filed towards the end of May 2014. Pending the said application, petitioner herein had sought to get impleaded in the appeal contending that he has been the newly appointed Vicar of the 10^th respondent church as designated by Rev. Dr. Thomas Athanasius Metropolitan of Kandanadu Diocese as per Exhibit P1. It would be seen from Exhibit P1 that the Metropolitan do not express any discontent or loss of confidence in the functions of this respondent. On the other hand, Rev. Metropolitan has sought to complement on the commandable leadership offered by this respondent to tide over the various crisis faced by the community. In the above context, in view of the peculiar facts involved, even though this respondent is not the appellant and even though the appeal has been filed by respondents 1 to 9 who belong to orthodox faction, this respondent is constrained to file this objection as otherwise he would be put to serious prejudice and his rights sought to be protected under IA 1286/2014 would be put to jeopardy as can be seen from below.
3. It is a face for judicial notice that a vertical split in the community of Jacobite Christians had participated, more dominantly in Kerala during 1970’s and it appears the dispute or rather the divide has mainly occurred due to the different possible interpretations in respect of 1934 constitution applicable to the community. As a consequence a manifest perception seeped into the community to the effect that the Orthodox faction does not approve or accept the primacy of the Holy Seat of Antioch, which has partly occurred due to some misunderstanding and the failure of Orthodox faction of the community to effectively communicate with the mass believers.
4. It has been unfortunate that such misconception regarding the import of 1934 constitution has resulted in a vertical split in the community, which could have been avoided if concerted efforts have been made by the religious hierarchy. As a fall out of each vertical split, the community under 10^th respondent/Church also happened to be divided as Orthodox and Jacobite factions. As a consequence of such division, the common believers of both the factions happened to develop avoidable mistrust towards the other faction even affecting the peace of the community in long run. The feud between two factions, during late 1990’s had grown to unhealthy extent of leading to physical clashes and conflicts even resulting in attempted obstructions of the religious mass held by each faction.
5. The respondent herein, who believes in the message of amity, tolerance and charity preached by Jesus Christ wanted to avert precipitation of the mutual distrust and feud between Orthodox and Jacobite faction, even though he himself belongs to the Orthodox faction. The local community members of the both the factions had absolute faith in the good intentions of this respondent and also his commitment to the cause of Jesus and the ideals of church. Under those circumstances, in between the warring factions of the community, both the factions have reached on a consensus to nominate this respondent as the Vicar of the 10^th respondent church after realizing that he would be able to bring peace, amity and eventual re-approachment between the Orthodox and Jacobite factions who had been at logger heads. In this context, the true Photostat copy of the settlement on consensus arrived between the Orthodox and Jacobite factions agreeing to the presiding over of this respondent as Vicar belonging to Orthodox faction is produced herewith as Annexure 1.
6. It would be seen from Annexure I that among others 3^rd respondent (C.A. Varghese) 2^nd respondent (Binoy Varghese), and 6^th respondent (P.A. George) had signed the settlement on behalf of Patriarch faction whereas 1^st appellant Mathai Varghese and M.C. Poulose signed on behalf of Orthodox factions with the whole community giving approval to the appointment of this respondent as the Vicar of Varikkoly Church/10^th respondent. in this context, it is further submitted that signatories 1, 2, 56, 6, 7 & 10 of Annexure 1 represented Patriarch faction whereas signatories 3, 4, 8, 9, 11 & 12 represented Orthodox faction. 13^th signatory Paul T. Varkey (late) represented a public spirited veteran of the locality and then member of Panchayath. Of the 13 signatories, signatory No.3 [M.C. Poulose and signatory 13 (Paul. T. Varkey) are no more and all the others are still alive and available.

7. Thus, it would be seen that this respondent was originally appointed on consensus between two factions which enabled resumption of worship of the church in 1999, after a short spell of the closure of the church on account of the feud between two factions. It is respectfully submitted that it has been the enduring wishes of the believers of both the factions that the differences between the two factions should be buried finally and peace and amity be restored, in consonance with the noble traditions and laudable teachings of Christianity. It has been under such circumstances, that this respondent has been conducting the mass, for the Orthodox parishioners, at the same while with an anxiety not to hurt the feelings of Jacobite faction in any manner and to restore mutual trust and respect between two factions. In recognition of the conscious efforts of this respondent to heal the wounds of the communities, it has been a matter of great satisfaction that followers of both the factions have been expressing their confidence and solidarity with this respondent for his best efforts to bridge the communities. It has been in the above back ground when this respondent has been successfully serving the society as the Vicar of Orthodox faction, that at the instance of a few war mongers and discontended elements, who yearned to bring about disunity in the community, that an apparent order to transfer has been caused to be issued against this respondent. It is incorrect and false to state that I was ever served with Annexure A order. It appears the appellants herein had confabulated with same vested interests close to the office of the Metropolitan and had manipulated Annexure A orders for the purpose of this case, only for the reason that this petitioner preached for peace among both the factions and to abide by the judgment of the Apex Court declaring validity of 1934 constitution and primacy of Patriarch at the same time. The transfer order is illegal, incompetent and is not legally enforceable. Moreover, inspite of the purported transfer w.e.f. 27.4.2010 this respondent continued to lead the prayers of orthodox faction during April and May of 2014. This respondent has not assumed office in any other church either, as there is no valid transfer order. Inspite of the said order, the majority of the community members of Orthodox faction want this respondent to be retained as Vicar of 10^th respondent church which is also found favour with the members of other faction. It has been under the said circumstances, on the wishes of the members of Orthodox faction and under the conscientious approval of members belonging to Patriarch faction that this respondent had to file I.A. 1286/2014 essentially seeking injunction against his replacement. The said application is still pending.

8. Annexure B order is illegal, arbitrary and ultravires of 1934 constitution. I was not served with any copy of Annexure B nor I was ever notified of the proposed dismissal beforehand by Metropolitan or any competent authority under him. Annexure B order is abstract and does not specify any reason for the proposed decision.

9. IA.1286/2014 is of critical importance to decide if he would be the appropriate Vicar to represent the Orthodox faction and also to decide if the proposed displacement of this respondent would be congenial to larger interest of the society. Pending decision on such application, it would be highly improper if the present petitioner/3^rd party to the appeal is permitted to be impleaded as Orthodox Vicar of 10^th respondent/Church, which in other words would imply acknowledgement by the court as to the propriety of the appointment of the said petitioner.

10. I herewith hasten to add that I have nothing personal against the petitioner and I have great respect and regards towards the authority of Metropolitan. But, I humbly point out that in the larger interest of society and pending adjudication of IA. 1286/2014 and the above appeal, it would be improper to unseat me from the office of the Vicar of 10^th respondent/Church on the strength of Exhibit P1 which I understand to be an order happened to come out on the confabulation and short sighted manoeuvrings of a few local vested interests, who are unhappy over my efforts to bring peace and amity within the larger society.

11. Under the circumstances, I herewith maintain that I am entitled to serve as Orthodox Vicar of 10^th respondent/Church pending the above appeal and any impleadment of the petitioner claiming to replace me would be highly improper and against public interest. Hence, the application for impleadment filed, pending my application for injunction with a view to pre-empt the later, is highly improper, irregular unnecessary and unwarranted and liable to be dismissed. It is prayed accordingly.

          Most humbly submitted on this the 13^th day of February, 2015.

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me on this the 13^th day of February, 2015                                at my office at Ernakulam.

Advocate

ANNEXURE P-27

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

R.F.A. No.193 of 2014

Mathai Varghese & others                                        :    Appellants

St. Mary’s Jacobite Syrian Church,

Varikoli & others                                            :    Respondents

AFFIDAVIT

I, xxx, S/o. xxx, aged 33 years, residing at Padiyil House, Mattakkuzhy, Varikkoli PO, Puthencruz Village. Ernakulam District, Pin: 682306, do hereby solemnly affirm and state as follows.

1. I am the 8^th petitioner/9^th respondent in the above appeal petitioners 1to 7 are respondents 1,2,3,5 to 8 in the above appeal. 10^th respondent herein is the 4^th respondent in the appeal. Respondents to 9 herein are the appellants in the above case. I am swearing this affidavit on behalf of petitioners 1 to 7 also as specifically instructed by them. I know the facts of the case and affidavit.

2. It is submitted that appeal was filed by the plaintiffs/appellants challenging the dismissal OS No. 10/2003 on the file of 1^st Additional District Court, Ernakulam. This Honourable Court as per judgment dated 21.8.2015 set aside order of dismissal and decreed the suit as prayed for. It is submitted that religious services and prayers in the 1^st petitioner/1^st respondent church is being conducted by both the factions in their respective time schedule allotted by the District Collector in mediation. It is submitted that the suit filed by the appellants were originally dismissed by the trial court and the trial court directed to maintain the interim arrangement. The above interim arrangement is continuing till today in the Church. It is therefore, the judgment dated 21.8.2015 passed in the above case may be kept in abeyance for a period of 90 days enabling us to file an appeal, otherwise, we will be put to irreparable loss and hardship. It is therefore, humbly prayed that the accompanying application filed to keep in abeyance the judgment dated 21.8.2015 of this court may kindly be allowed.

          Dated this the 21^st day of August 2015.

Xxx

Deponent

Solemnly affirmed and signed before me by the deponent who is personally known to me at my office at Ernakulam, on this the 21^st day of August, 2015.

AB

Advocate

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

 

I.A. No.                 of 2015

in

R.F.A. No.193 of 2014

Petitioners/Respondents 1 to 3 and 5 to 9:-

1. St. Mary’s Orthodox Church, Varikoli, Varikoli P.O. Puthencruz, rep. by its Trustee.

2. Binoy Varghese, S/o. Varghese, aged 42 years,

Ikkarayil House, Mattakuzhi, Varikkoli P.O. Pin:682308.

3. C.A. Varghese, S/o. Abraham, aged 70 years,

          Chemmoth House, Chemmanadu, Ernakulam Dist -682308.

4. V.E.Thomas, S/o. Ittoop, aged 70 years, Velloor House,

Varikkoli P.O., Puthencruz, Pin: 682308.

5. P.A. George, S/o. Alexander, aged 69 years, Padiyil House,

Varikkoli P.O., Puthencruz, Pin: 682308.

6. K.I. Yakob, S/o. Ishac, aged 64 years, Kizhippillil House, Varikkoli P.O., Puthencruz, Pin: 682308.

7. V.V. Mathai, S/o. Varkey, aged 62 years, Velloor Puthenpurayil House, Choondy, Vadayambady. P.O., Ernakulam.

8. Ajosh George, aged 33 years, Padiyil House, Mattakuzhi, Varikkoli P.O., Puthencruz – 682308.

Respondents/Appellants/Plaintiffs:-

 

1. Mathai Varghese, S/o. Varghese, aged 65 years,

          Muthirakalayil House, Varikoli P.O.

Ernakulam, Pin: 682308.

2. T.M.Paulose, S/o. Mathai, aged 64 years, Thelakkat House, Varikoli P.O., Ernakulam.

3. C.E. Geevarghese, aged 49 years, S/o, Elias,

          Chennekkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

4. M.C. Paulson, S/o. Chacko,

          Malai House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

5. T.T. Paulose, S/o. Thomas,

          Thonnamattathil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

6. T.V. Thomas, S/o. Varkey,

          Thekkineth House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

7. M.K. Paulose, S/o. Kuriakose,

          Mundakkal House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village.

8. Baby Joseph, S/o, Joseph,

          Palakkattil House, Mattakuzhi, Varikkoli P.O.

Thiruvaniyoor Village,

9. C.C. Philip, S/o. Cherian,

          Chakkyattil House,  Varikoli P.O. Puthencruz Village,

10. Fr. Mathai Vadakkinedath, S/o. V.M. Kuriachan, aged 50 years, Vadakkinedath House, Ezhakkaranad South P.O, Maneed Village.

 

PETITION FILED BY K.J. KURIACHAN, COUNSEL FOR THE PETITIONERS – RESPONDENTS 1 TO 3 AND 5 TO 9 IN THE APPEAL UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE TO STAY THE OPERATION IN ABEYANCE OF THE JUDGMENT DATED 21.8.2015.

For the reasons stated in the accompanying affidavit, it is most humbly prayed that this Honourable Court may be pleased to keep abeyance the judgment passed in R.F.A. No.193/2014 dated 21.8.2015 passed by this Honourable Court or direct the parties to continue the interim arrangement of religious services for a period of 90 days, I may be kept in abeyance for a period of 90 days from the date of receipt of judgment, interest or justice.

        Dated this the 21^st day of August 2015.

 

K.J. KURIACHAN,

Counsel for the petitioner.

ANNEXURE P-25

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present:

Friday, the 21st day of August 2015/30th Srarvna, 1937 I.A.1817/2015 IN RFA No.193/2014

O.S. 10/2003 of the I ADDL.DISTRICT COURT, ERNAKULAM

Petitioners/Respondents I to 3 and 5 to 9.

1. St. Mary’ s Orthodox Church Varikkoli, Vtarikkoli P.O., Puthencruz,  Pin 682308 rep. by its Trustee.
2. Binoy Varghese S/o Varghese, aged 42 years, Ikkarayil House,  Varikkoli P.O, Puthencruze, Pin         682308
3. C.A. Varghese, S/o Abraham. Aged 70 years, Chemmoth house, Chemmanadu, Ernakulam District,         682308.
4. V.E Thomas , S/o Ittoop, aged 70 years, Velloor House, Varikkoli P.O., Puthencruze, Pin 682308
5. P.A George S/o Alexander, aged 69 years, Padiyil House, Varikoli PO, Puthencruze, Pin 682308.
6. K.I Yakkob, S/o Issahakk, aged 64 years, house,

          Varikkoli PO. Puthencruze, Pin 682308

7. V.V Mathai, S/o Varkey, aged 62 years, Velloor PuIthenpurayil house, Choondy, Vadayambadi P.O.       Ernakulam.
8. Ajosh George, aged 33 years, Padiyil House, Varikkoli P.O, Puthencruze, Pin 682308

Respondents/Appellants/Plaintiffs:

1. Mathai Varghese, S/o Varghese, aged 65 years, Muthirakalayil House, Varikkoli P.O., Ernakulam, Pin   682308.
2. T.M. Paulose, S/o Mathai, Aged 64 years, residing at Thelakkatt House, Varikoli P.O. Ernakulam, Pin          682308.
3. C.E. Ghevarghese, aged 49 years, S/o. Alias Chennakkattil House, Varikoli P.O. Ernakulam, Pin    682308.
4. M.C. Paulson, aged 59 years, S/o Chaco, Malal House. Varikkoli P.O.,  Ernakulam. Pin 682308.•
5. T.T. Paulose, S/o Thomas, aged .49 years, Thonnamattathil,.Vaikkoli P.O., Ernakulam, Pin 682308.
6. T.V Thomas, S/o Varkey, aged 55 years Thekkileth house, Varikkoli PO, Ernakulam, Pin 682308.
7. M.K Paulose, S/o Kuriakkose,aged 55 years,        Mundakkal house, Varikkoli PO, Ernakulam, Pin     682308.
8. Baby Joseph, S/o Joseph, aged 56 years, Plakkattil House. Varikkoli PO, Ernakulam, Pin 682308:
9. C.C Philip, Aged 55 years, S/o Cherian, Chakkyattil house, Varikkoli PO, Ernakulam, Pin 682308.
10. Rev.Fr. Mathai Vadikkeneth, Vadakkineth House, Eazhakkaranado South PO, Maneed Village.

Application praying that in the circumstances stated in the affidavit filed therewith the          High Court be pleased to keep in abeyance the judgment passed in RFA No.193/2014 dated 21-08-2015 passed by this Honourable Court or direct the parties to continue the interim arrangement of religious services for a period of 90 days, may be kept in abeyance for a period of 90 days from the date of receipt  of  judgment, in the interest of justice.

          This application coming on for orders upon perusing the application and the affidavit filed in support thereof, and upon hearing the arguments of SRI. K.J.KURICHAN, Advocate for the petitioner and M/S.P.MARTIN JOSE, ELDHO CHERIAN, P.PRIJITH & THOMAS,  P.KURUVILLA Advocates for the respondents 1 to 9 and MIS. P.VIJAYAKUMAR, C.R.REGHUNATHAN, M.V.ASHIM, R.BALAKRISHNAN,  B.HARPYLAL, SUVIN.R.MENON, Advocates for respondents 10, the court passed the following:

P.B.SURESH KUMAR, J.

=================

I.A.No.1817 of 2015

in

R.F.A.No.193 of 2014.

==================

Dated this the 21^st  day of August, 2015

.

ORDER

This is an application seeking orders to continue the present arrangement for the conduct of the religious services at St.Mary’s Orthodox Church, Varikoli for a further period of 90 days.

2. The dispute in the appeal relates to the administration of the Church referred to above. It is stated in the affidavit filed in support of the application that the religious services in the Church were being conducted pending appeal in accordance with the terms of a settlement arrived at the mediation of the District Collector. It is also stated that if the said arrangement is disturbed before the dispute is finally resolved by the superior courts, the petitioners will be put to irreparable hardship.

3. When this petition came up for hearing, the learned counsel for the parties agreed that the present arrangement for the conduct of the religious services at the Church can be continued for a further period of 45 days from the date of receipt of the copy of the judgment.

4. In the light of the agreement, arrived at between the parties, I am inclined to permit the present arrangement concerning the conduct of religious services at the St. Mary’s Orthodox Church, Varikoli to continue for a further period of 45 days from the date of receipt of the copy of the judgment in the appeal and it is ordered accordingly.

(Hand over)                                                                  P.B. SURESH KUMAR

(JUDGE)

//True Copy//

Sd/-

15/09/15

Assistant Registrar.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO                   OF 2015

IN

SPECIAL LEAVE PETITION (CIVIL) NO.       OF 2015

 

IN THE MATTER OF:

V.E. Thomas & Others                                                ………Petitioners

                                                VERSUS

Mathai Varghese & Others                               ………Respondents

APPLICATION  FOR EXEMPTION FROM FILILNG OFFICIAL TRANSLATION OF ANNEXURE P1 to P11 & P14 & P15

 

To

          The Hon’ble the Chief Justice of India

And His Companion Justices of the

Hon’ble Supreme Court of India

                                                The humble application of the

                                                petitioners above named

 

 Most Respectfully Showeth:

1. The accompanying Special leave petition is filed  from and  against the  Final Judgment and Order of the by the  High Court of Kerala at Ernakulam,  dated 21-08-2015, in Regular First Appeal No 193 of 2014

2. That the document marked  Annexure P1 to P11 & P14 & P15 are the true English translations of the relevant extracts of  the Original Malayalam  documents which are exhibits in the Trial Court.. The said document  have been locally translated for the purpose of this Hon’ble High Court .

3. Since obtaining official translation of the said documents are likely to take time and looking at the urgency of the matter, the petitioner may be exempted from filing official translation of the said document marked as ANNEXURE P1 to P11 & P14 & P15

                                                          PRAYER

This Hon’ble Court may be pleased to exempt the petitioner from filing official translation of the documents marked ANNEXURE P1 to P11 & P14 & P15  and pass such other and further order.

 DATED: XXXX                                         DRAWN & FILED BY

                                                                             XXXXXXXXX

                                                                   Advocate for the Petitioners