Malankara Jacobite

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Judgment
Kerala High Court
in Nechoor Church Case


IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS. No. 844 of 1998(A)
 
1. VARKEY ABRAHAM
... Petitioner
Vs
 1. ST. THOMAS ORTHODOX SYRIAN CHURCH
... Respondent
 
For Petitioner : SRI. S. SREEKUMAR
For Respondent : SRI. N. SUKUMARAN
The Hon'ble MR. Justice V. RAMKUMAR
 
Dated :14/10/2009
 
O R D E R
V. RAMKUMAR, J.
...............................................
A.S.No.844 of 1998
&
Cross Objection
................................................
Dated this the 14th day of October , 2009
 
JUDGMENT

 

In this appeal filed under Section 96 read with Order XLI Rule 1 C.P.C, plaintiffs 2 to 5 in O.S.No.32 of 1977 on the file of the 1st Additional District Court, Ernakulum (Designated church Court) challenge the judgment and decree dated 8.9.1998 passed by that Court.

 

RELIEFS CLAIMED IN THE SUIT

 

2. The said suit originally instituted before the Munsiff's Court, Muvattupuzha as O.S.No.83 of 1976 by the deceased 1st plaintiff and the appellants herein was for the following reliefs:-

 

a) a decree declaring that the 1st defendant St. Thomas Orthodox Syrian church, Nechur is a parish church included in the Malankara Orthodox Syrian church and that it is to be administered in accordance with the Malankara Orthodox Syrian Constitution by Moran Mar Baselius Marthoma Mathews-I, the present Malankara Metropolitan

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and Catholicos and his successors.
 
b) A decree declaring that the 5th plaintiff (T.P.Elias Kathanar) is the Vicar of the 1st defendant church and the 2nd defendant(P.M.Kuriakose Kathanar) has no right to function as the Vicar or perform the duties of the Vicar in the said church and pass a decree of mandatory injunction restraining the 2nd defendant who is keeping custody of the keys, diary, parish register, marriage register, Baptism Register etc. in his capacity as the Vicar, to hand over the same to the 5th plaintiff.

c) A decree of prohibitory injunction restraining the 2nd defendant from convening a meeting of the Parishners of the 1st defendant/church on 15.2.1976 or any other day and restraining defendants 3 to 5 from convening a meeting of the parishioners without preparing a voters list, calling for objections to the same and publishing the final list.
 
d) A decree of prohibitory injunction restraining defendants 2 to 5 from spending any amount belonging to the church for any purpose other than the day to day affairs of the church and

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restraining them from permitting defendants 6 and 7 to enter the church or paying defendants 6 and 7 any money from out of the church fund.

e) To pass a decree of prohibitory injunction restraining defendants 6 and 7 from entering the 1st defendant church and meddling with the administration of the church.

f) To direct defendants 2 to 7 to pay the cost to the plaintiff .

g) To grant such other reliefs that may be prayed for.

 

THE PLAINT AVERMENTS
 

3. The plaint averments are as follows:-

The 1st plaintiff (Kurian George Kathanar) and on his death, the 5th plaintiff, (T.P.Elias Kathanar) is a Parishner and Vicar of the 1st defendant St.Thomas Orthodox Syrian church, Nechur. Plaintiffs 2 to 4 are also members of the Parish of which plaintiffs 2 and 3 are members of the church Committee as well. The plaintiffs are instituting the

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suit for the protection and benefit of the 1st defendant church in their own behalf and also on behalf of the 1st defendant church. An application for granting permission under Order I Rule 8 C.P.C is also being filed along with the plaint. The 1st defendant is the St.Thomas Orthodox Syrian church, Nechur. The 2nd defendant (P.M.Kuriakose Kathanar) is the Vicar appointed by the then Metropolitan of Kandanad diocese. The 3rd defendant is the Co-Vicar of the church. Defendants 4 and 5 are the trustees approved by the then Metropolitan. The 1st defendant church is a Parish church included in the Kandanad diocese. Both the 1st defendant church and the Kandanad diocese are part of the Malankara Orthodox Syrian Congregation). Malankara Orthodox Syrian Congregation, by virtue of its approved constitution, has an association called Malankara Association, a Managing Committee and an Episcopal Synod. The constitution of the church was approved by the Malankara Metropolitan and Catholicos. The said constitution is

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known as the Constitution of the Malankara Orthodox Syrian Congregation. Validity of the said constitution was challenged in O.S.No.111 of 1113 ME before the District Court, Kottayam. Ultimately, the Hon'ble Supreme Court dismissed the suit upholding the validity of the constitution.
 
The said constitution received approval in the 1st defendant church which is administered in accordance with the said constitution. Even if any of the Parish churches does not specifically approve or adopt the constitution, still the said constitution is binding on all the Parish churches included in the Malankara Orthodox Syrian Congregation which is an Episcopal church. The 6th defendant (Moran Mar Baselius Paulose II) was appointed by the then Malankara Metropolitan and Catholicos as the Metropolitan of Kandanad diocese. In pursuance of the said appointment, the 6th defendant had executed a treaty ( ) with the then Malankara Metropolitan and Catholicos and he was administering the church in accordance with the aforementioned constitution. Subsequently, the 6th

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defendant started defying the constitution and Canon Law.
 
Besides, he tried to set up a new church directly under the administration of the Patriarch of Antioch. Therefore, a show cause notice was issued to the 6th defendant . After taking evidence and after hearing him, the 6th defendant was removed from the Episcopal Synod of the Malankara Orthodox Syrian church and also from the membership of the church. This fact was informed by the then Malankara Metropolitan and Catholicos to all the churches. After the expulsion of the 6th defendant, the administration of the Kandanad diocese of which the 1st defendant church is a constituent, became vested with Moran Mar Baselius Ougen I, the Catholicos of the East and Malankara Metropolitan. This was in accordance with the provisions of Malankara church Constitution. Presently his successor, Moran Mar Baselius Marthoma Mathews-II administers the diocese of Kandanad and the Orthodox Syrian church. Moran Mar Baselius Mathews-II removed the 2nd defendant (P.M.Kuriakose Kathanar) from the Vicarship of the 1st defendant church and appointed the 5th plaintiff (T.P.Elias)

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as the Vicar of the church. The Kalpana (appointment order) dated 21.1.1976 issued in that behalf is produced along with the plaint. It was directed in the Kalpana that the 5th plaintiff should take charge from the 2nd defendant.
 
That Kalpana had been read out in the 1st defendant church. In spite of the fact that the 5th plaintiff had issued a registered notice on 2.2.1976 to the 2nd defendant demanding handing over of the charge of Vicar with records and keys of the church within three days, the 2nd defendant did not comply with the same. From 21.1.1976 onwards the 5th plaintiff is the duly appointed Vicar of the 1st defendant church. The 2nd defendant has no right to continue as a Vicar of the church. He has no authority to bind the 1st defendant church as the Vicar. The 1st defendant church is being administered in accordance with the provisions of Malankara Orthodox Syrian church constitution. Neither defendants 2 to 4 nor anyone in the Parish has any right to act in violation of the provisions of the constitution. The constitution contains specific provisions regarding the convening of the general body of

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the church. Those provisions are contained in Chapter II clauses 7 to 12. According to the provisions of the constitution, the general body can be convened only after publishing the list of the persons having a right to vote in the church elections. A meeting convened without complying with the above provisions is not legal. Only the Vicar is vested with the right to call a meeting of the parishioners. Since the 2nd defendant is not the Vicar of the church, he has no right to call a meeting of the parishioners. That apart, if the 2nd defendant is allowed to do so that will not be congenial to the interests of the church. However, defendants 2 to 5 jointly and in collusion with defendants 6 & 7 have taken steps to convene a meeting of the parishioners on the 15th of this month.
 
Persons who have no authority to meddle with the administration of the church are with the blessing of defendants 2 to 5 and at the instigation of the 5th defendant, trying to create an artificial majority in the church and take over the administration of the church. If this is allowed to be done, it will adversely affect the church. It has to be

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prevented by the issuance of a prohibitory injunction. The 6th defendant has no membership in the Malankara Orthodox Syrian church nor has he any administrative authority. He is trying to establish an administration directly under the Patriarch of Antioch. The approved constitution of the Malankara Orthodox church has not invested any power with the Patriarch of Antioch to exercise any sort of authority over the Malankara Orthodox church. Since Patriarch of Antioch acted against the constitution and the Canon Law, he himself has severed connection with the Malankara Orthodox church. It is understood that the Patriarch of Antioch called the 6th defendant to the former's seat and consecrated him as Catholicos with the name Moran Mar Baselius Paulose II. Similarly, 7th defendant (Thomas Mar Ostathius) is understood to have been ordained as a Bishop by the Patriarch. The Patriarch has no authority to ordain Catholicos or Bishop for the Malankara Orthodox Syrian church. No permission was given to the Patriarch to do so either by the Episcopal synod of the Malankara

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Metropolitan or Catholicos or the managing committee of Malankara Association. 7th defendant has no administrative authority over any church in the Malankara Orthodox Syrian church, including the 1st defendant church.
 
Therefore, none of them has any right to enter the 1st defendant church or to do any act in the matter of governance. Defendants 6 & 7, in collusion with defendants 2 to 5 are trying to trespass into the 1st defendant church. It is understood that it has been decided to receive D6 and D7 in the church and to make available to them the funds belonging to the church. All such intended activities are illegal and the plaintiffs and the other parishioners are against the said proposal. For the interests of the 1st defendant church, it is highly essential to issue a declaration that the 1st defendant church is a parish church under the Malankara Orthodox Syrian church and that the church is to be administered as per the constitution of the Malankara church under the patronage of the Catholicos and the Malankara Metropolitan, Moran Mar Baselius Marthoma Mathews-I and his successors.

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Defendants 6 and 7 are to be prohibited by an injunction restraining them from doing any act against the interests of the church, defendants 3 to 7 are to be restrained from convening a meeting of the parishoners. Further, the said defendants are bound to hand over the records and keys of the church to the 5th plaintiff who is the present Vicar of the church. This suit has been necessitated since defendants 2 to 7 met and decided not to submit to the administrative sovereignty of the Catholicos.
 
4. After its institution, the suit was transferred to the designated church Court at Ernakulam for trial and disposal.
 

THE DEFENCE
 

5. The suit was resisted by defendants 2,3,5, and 6 of whom defendants 2 , 3 and 5 filed a joint written statement contending inter alia as follows:-
 
The suit is not maintainable. The plaintiffs have no cause of action. They have ceased to have communion with the Jacobite Syrian faith and are

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presently not members of the first defendant church. They are the followers of late Baselius Ougen - I who was found guilty of deviations from the fundamental faith of the church by the Universal Episcopal Synod of the Syrian Orthodox church (of which Malankara
church is a part) held on 16-6-1975 and on subsequent days. On the basis of the said decision of the Synode which is the highest Ecclesiastical Tribunal in the church, Patriarch of Antioch of the East declared Basselius Ougen I Mathews Mar Athanesius and their partisans as apostates on 21-8-1975. Mathews Mar Athanesius now calls himself as Basselious Marthoma Mathew-I. The first defendant is described in the plaint as the church which the plaintiffs call as the
 
"Nechur St. Thomas Orthodox Syrian church". The correct name of the church is "Nechur Jacobite Syrian Marthommen church" (hereinafter called as "the church" ). The said church is not a legal entity and cannot be sued as a defendant by itself. It is further illegal for the church to be represented by the

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plaintiffs. The church is a public trust and the aid of the court is sought for against the trustees or administrators for authorising them to discharge their duties in relation to the objects of the trust. The reliefs prayed for in the plaint are really and substantially those stated in Sec. 92 (1) of the Code of Civil Procedure, (C.P.C. for short). Hence, the suit without obtaining sanction under Sec.92 (1) C.P.C. is not maintainable. The matters raised in this suit, particularly, those relating to relief A are directly and substantially in issue in O.S. 81 of 1977 on the file of this Court (designated church Court) the same having been initially filed as O.S. No. 142 of 1974 on the file of the Sub Court, Kottayam. Hence, the present suit is barred under Sec.10 and Order II Rule 2 C.P.C. The plaintiffs have no possession of the plaint schedule property nor have they any role in the administration or management of the same or any control over the same. The plaintiffs are not entitled to any of the reliefs prayed for in the suit. The claim by the first

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plaintiff and thereafter by the 5th plaintiff to be the Vicar of the church is unsustainable. The Vicar or Priest of the church is to be nominated by the parishioners or accepted by them and appointed by the Diocesans Metropolitan. The first and 5th plaintiffs have none of those qualifications. The Malankara Metropolitan has no authority to appoint a Vicar in the church and he cannot exercise the powers of the Diocesan Metropolitan unless he is accepted as such by the diocese. The Vicar of the church is the 2nd defendant. The church was established by the forefathers of the present parishners for conducting religious services by religious dignitaries who had the spiritual grace obtained from the Patriarch or his delegate for the benefit of the parishners. No person including the religious dignitaries who is not subject to the Supreme spiritual authority of the Patriarch has got any right in the church. The Kandanad Diocese or its authorities have no power over the temporalities of the first defendant church and such power is exclusively

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vested in the parishioners. The church had adopted a set of rules for its administration and those rules are incorporated in an udampadi (treaty) which was registered on 7-12-1087 M.E. in the Aikaranadu Sub Registry. The administration of the church is carried out under the provisions of the said Udambadi with its subsequent amendments. The alleged constitution relied on by the plaintiffs and referred to in paragraph 20 of the plaint is not applicable to the church. The Malankara Syrian Christian Association is an organization formed for fellowship and co-operation in the common affairs. It has no ecclesiastical, spiritual or temporal authority over the new parish churches. Any Constitution adopted by that body and purported to be for the administration of individual parish churches is without jurisdiction and hence null and void. It was never enforced or accepted in the first defendant church. The Patriarch has refused to accept the said Constitution. The provisions of the said constitution are unreasonable, in-conflict with the

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Constitution adopted at the Mulanthuruthi Synode in- defines of Court decisions, against the usages which existed in the church and in violation of the cardinal principles of faith and the common law . The basic structure of the original church has been totally changed and a new church has been created. The allegation that the church is an episcopal church is not correct. It is episcopal only in spiritual matters and in all other matters it is congregational. The 6th defendant has been exercising the functions of the Metropolitan of the Kandanad diocese and the first defendant church from 1952 onwards by reason of his consecration by the Patriarch and by reason of the election and acceptance by the parishioners and the people in that diocese. There was no valid or effective appointment by Baselius Gee Varghese. The 6th defendant has not executed any treaty accepting or approving any such appointment by Baselius Gee Varghese. He has not conducted the administration under the provisions of the Constitution relied on by

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the plaintiffs. The alleged proceedings against the 6th defendant are void ab initio, mala fide and incompetent. It cannot bind the church or 6th defendant. The charges against him are false and the alleged decision against him by the Malankara Episcopal Synode is without jurisdiction and in violation of the principles of natural justice. The 6th defendant is continuing to exercise all the powers of the diocesan Metropolitan in the Ist defendant church.

Basselios Marthomma Mathews or Baselious Ougen-I cannot get any authority over the first defendant church or the Kandanad Diocese. The provision in this behalf in the Constitution relied on by the plaintiffs in paragraph 4 of the plaint is void. There is no valid order removing the 2nd defendant from Vicarship of the church nor is there any order appointing the first or 5th plaintiff in his place. Baselios Marthoma Mathews has absolutely no power to make any such appointment.
 
The Vicar cannot be appointed or removed without the knowledge and consent of the parishioners. The plaint

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allegation that the letter dated 21-1-1976 referred to para 5 of the plaint was publically read in the church is false and hence denied. The 2nd defendant is not aware of the registered notices dated 2-2-1976. The 2nd defendant still continues to be the Vicar of the church and he has the authority to continue as such.
 
The plaintiffs have no right over the first defendant church nor have they any right to represent the church. They have ceased to be the members of the Committee. The church is administered in accordance with the Rules framed by the parishioners and not as per the provisions of the Constitution relied on by the plaintiffs. The meetings are also held as per rules adopted in the church. According to those rules all members who have attained 21 years of age and who have taken confession and who have paid the ressissa can be members of the poduyogam that is general body. But a member who attains the age of 21 years and who wants to participate in the general body for the first time must pay a fee of one rupee. The 2nd

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defendanat is the Vicar of the Ist defendant Church. It is the Vicar who announces the holding of the meetings unless he is unable to do so or refuses to do so in which case others can convene the meeting. It was with full authority in his capacity as the Vicar that the 2nd defendant convened the Parish meeting on 15- 2-1976. The plaint allegations against the proposed meeting on 15-2-1976 are wrong and without any basis. The proposed meeting was essential for the welfare of the parishioners of the church. The allegations leveled against the 6th defendant and the Patriarch of Antioch are denied. The 6th defendant has all episcopal functions in the first defendant church.

He is not only a member of the Malankara church but is also the highest local ecclesiastical authority in the church. It is wrong to state that he attempted to establish direct administration of the church through the Patriarch. The powers of the Patriarch are definitely bestowed on him and the Malankara Association with a majority of laymen cannot abridge or

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curtail his spiritual powers. The alleged Constitution and its provisions have been repudiated by the Patriarch and are not binding on him. The plaint allegation that the Patriarch has severed connection with the Malankara church is false. It is the plaintiffs and the religious dignitaries whom they follow who have lost communion with the Malankara Jacobite church and that is due to their deviations from the fundamental faith. It is true that the 6th defendant is now the Catholicos of the East he having been consecrated by the Patriarch on 7-9-1975. It is also true that the 7th defendant has been consecrated as a Metropolitan by the Patriarch who is the supreme spiritual authority in the Syrian Orthodox church of which Malankara church is an archdiocese. The Patriarch of Antioch had the full authority to conduct the aforementioned consecration and the consent of the authorities referred to in paragraph 13 of the plaint is not necessary for such consecrations by the Patriarch. The 6th and 7th defendants have full

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authority to enter the church and to perform all episcopal functions therein. The plaint allegation that defendants 6 and 7 are attempting to forcibly enter the church is not true. The 6th defendant is making his episcopal visit to the church very often and he is always welcomed in the church with the greatest honour and gratitude. The plaintiffs have absolutely no right to restrain the 6th defendant from visiting the church. The plaintiffs have no cause of action against these defendants. They are not entitled to any of the reliefs prayed for in the plaint. The declaration sought is not to establish their own legal character but is one relating to 3rd parties who are not even parties to the suit. The plaintiffs are not in possession of the first defendant church or any of its assets nor have they any title over the same. Hence, the relief of injunction prayed for is misconceived. Since the reliefs prayed for in the plaint are substantially those which come under Sec. 92 (1) C.P.C. and the plaintiffs have sought for recovery of trust properties and have also prayed for 22: the assistance of the Court for the proper management of the trust, the suit filed without sanction under Sec. 92 C.P.C. is incompetent. The suit may, therefore, be dismissed with costs of these defendants.
 
6. The 6th defendant filed a statement adopting the contentions of defendants 2, 3 and 5.
 
7. The Court below framed the following 13 issues for trial:-
 
1) Is the first defendant Nechoor St. Thomas church a constituent Parish Church of the Malankara Orthodox Syrian Church liable to be administered under the authority of Catholicos-cum-Malankara Metropolitan or is it a self governing autonomous church ?
 
2) Is Moran Mar Baselios Marthoma Mathews-I any way disqualified fron functioning as the Catholicos-cum- Malankara Metropolitan by reason of the Kalpana of the Patriarch of Antioch dated 21-8-1975 relied on by the defendants ?
 
3. Is the first plaintiff entitled to be declared as the Vicar ofthe plaint churches
 
4.Is the first defendant church liable to be administered under the Constitution of the Malankara Church originally passed on 1934 and amended up to date ?
 
5. Is the 2nd defendant entitled to function as the Vicar of thechurch ? Is he liable to had over the records of the church tothe Ist defendant ?
 
6. Is the 2nd defendant competent to convene the Edavaka Yogam of the Ist defendant Parish ? Is the Edavaka Yogum of the Ist defendant parish liable to be convened except on finalisation of the list of qualified and competent members of the yogam ?
 
7. Is the 7th defendant a validly consecrated and appointed Metropolitan of the Malankara church ? Is he entitled to exercise any episcopal authority over the plaint parish ?
 
8. Is the 6th defendant entitled to continue as the Metropolitan of the Malankara Diocese after the disciplinary proceedings taken against him by the Malankara Episcopal Synod ?
 
9. Is the claim made on behalf of the 6th defendant that he is the Catholicos-cum-Malankara Metropolitan valid and sustainable ?
 
10. Are defendants 6 and 7 entitled to enter and interfere in the administration of the first defendant Parish ?
 
11. Are the plaintiffs entitled to the injunction and declaration sought for ?
 
12. Are the defendants competent to question the validity and enforcibility of the constitution and the authority of the Catholicos-cum-Malankara Metropolitan in view of the Supreme Court ruling reported in 1958 KLT 721 ?
 
13. Reliefs and costs.
 

THE EVIDENCE
 

8. On the side of the plaintiffs the 2nd plaintiff was examined as P.W.1 and Exts.A1 to A8 were got marked. On the side of the defendants the additional 8th defendant was examined as DW1 and and Ext.B1 Edavakayogam register for the period from 1912-1975 and Ext.B2 udambadi of the year 1912 and two decisions in Ext.B1 Register were got marked.
 

THE IMPUGNED VERDICT
 

9. The learned Additional District Judge presiding over the designated church Court, after trial, as per judgment and decree dated 8-9-1998 partly decreed the suit granting a declaration to the effect that the Malankara Metropolitan - Catholicos is the head of the church subject to a nominal, spiritual supervision of the Patriarch of Antioch and that the first defendant church has to be administered as per the provisions of the 1934 Constitution and as per the directions of the Metropolitan and Catholicos. The relief of injunction both perpetual and mandatory was, however, refused. Hence, this appeal by the plaintiffs.
 

ADVOCATES WHO APPEARED IN THIS APPEAL
 

10. I heard Advocate Sri. S. Sreekumar, the learned counsel appearing for the appellants/plaintiffs, Adv. Sri. N. Sukumaran appearing for the second defendant and Sr. Advocate Sri.K. Rama Kumar appearing for additional respondents 8 and 9 who claim to have been elected as trustees consequent on the death of the 5th defendant- Simon.
 

ARGUMENTS ON BEHALF OF THE PLAINTIFFS
 

11. Advocate Sri. S. Sreekumar, the learned counsel appearing for the appellant made the following submissions in support of the appeal:-
 
Eventhough the contesting defendants had raised a contention that the suit is bad for want of leave under Sec. 92 (1) C.P.C., the said contention was not pursued further. No issue was framed by the court below with regard to the maintainability of suit for want leave under Sec. 92 (1) C.P.C. This appeal was filed on 5-12-1998. The contesting defendants had filed a memorandum of Cross Objection the year 1998. In the said memorandum of Cross Objection also they had no grievance against the trial court

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for not having framed an issue that the suit was bad for want of leave under Sec. 92 (1) C.P.C. The memorandum of Cross Objection was sought to be amended twice by filing I.A. Nos. 3680/2004 on 27-10-2004 and I.A. No. 1594/2007 on 9-3-2007. No plea under Sec.92 C.P.C. was raised in I.A. 3680/2004. It was only as per I.A. 1594 of 2007 filed on 9-3-2007 that the defendants re-iterated their contention in the written statement that the suit should have been dismissed for want of leave under Sec. 92. It is true that the church in question is a public religious trust. But the reliefs prayed for in the suit do not include any of the reliefs enumerated under Sec. 92 (1) C.P.C. Even though a plea based on Sec. 92 C.P.C. was raised in the written statement it was not prosecuted further and was, therefore, given up. Even in the memorandum of Cross Objection as originally filed no case based on Sec.92 C.P.C. was put forward. It was only on 9-3-2007 that they raised the contention that the suit should have been dismissed for want of leave under Sec.92 C.P.C. by raising the said ground in I.A. 1594/2007. It was the decision of the

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Division Bench reported in Moran Mar Baselious Marthoma Mathews II v. State of Kerala - 2003 (1) KLT 780 holding that the Parish churches are covered by their own constitution and the decision in P.M.A.
 
Metropolitan's case - AIR 1995 SC 2001 will not be binding on the Parish churches which emboldened the defendants to revive their contention based on Sec. 92 C.P.C. Their contention that the 1934 Constitution is not applicable to the present church at Nechur which is admittedly a church falling under the Malankara Association cannot stand the scrutiny of the court in the light of the verdict of the Apex Court in P.M.A.
 
Metropolitan's case. The Hon'ble Supreme Court in the decision reported in Moran Mar Thoma Mathews v.

Most Rev. Thomas Mar D. Metropolitan - 2002 (1) KLT 125 (SC) had appointed Sri. Justice Malimath, former Chief Justice of the Kerala High Court as an observer to supervise the election of the Malankara Association and its Constituent churches to be conducted in accordance with the provisions of the 1934 Constitution. Pursuant to the

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said decision, elections had been conducted both in the Malankara Association as well as in the Parish churches.
 
Hence, the court below was not justified in refusing the perpetual and mandatory injunction. The decision reported in Moran Mar Baselious Marthoma Mathews II v. State of Kerala - 2003 (1) KLT 780 was reversed by the Supreme Court in Moran Mar Baselious Marthoma Mathews II v. State of Kerala - 2007 (3) KLT 349 (SC) . Even though in one the six suits which were fought up to the Supreme Court culminating in the decision in P.M.A. Metropolitan's - AIR 1995 SC 2001 there was a contention that the suit was bad for want of leave under Sec. 92 C.P.C. the learned Single Judge of this Court who disposed of the suits at the first instance held that the suit was not bad for want of leave under Sec. 92 C.P.C. All those suits were representative suits under Order 1 Rule 8 C.P.C.. The above finding by the learned single judge was not pursued further either in the appeal before the Division Bench of this Court or before the Supreme Court. The said finding in O.S. No. 5 of 1979 will operate as res

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judicata under Explanation VI to Sec. 11 C.P.C. There is no allegation in the plaint of any breach of Trust nor is any direction of the Court sought for the administration of the Trust. The suit is not one to obtain any of the reliefs enumerated under clauses (a) to (h) of Sec. 92 (1) C.P.C. There is no relief to remove any trustee or to appoint any trustee. There is no relief for possession of trust properties . There is no prayer for settling a scheme for administration of the trust. Merely because the right of the 2nd defendant to function as the Vicar of the church is asserted by the defendants and denied by the plaintiffs it cannot be said that the suit falls under Sec.92 (See Swami Parmatmanand Saraswati and another v. Ramji Tripathi and Another - AIR 1974 SC 2141).
 
Likewise, the right of defendants 6 and 7 to act as Metropolitans is denied by the plaintiff. That will not bring the suit under Sec. 92 C.P.C. The appellants/plaintiffs rely on the following decisions:-
 
1. Deoki Nandan v. Murlidhar and others - AIR 1957 SC 113
 
2. Gheevarghese Koshy v. Chacko Thomas of Pallimadayil and Others - AIR 1963 Kerala 191
 
3. Chairman Madappa v. M.N. Mahanthadevaru and others - AIR 1966 SC 878
 
4. Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another - AIR 1974 SC 2141
 
5. Charan Singh and another v. Darshan Singh and Others AIR 1975 SC 371
 
6. B.K.N. Pillai v. George Mendez - 1988 (2) KLT 605
 
7. Chandra Warrier v. N.S.S. Karayogam - 1991 (1) KLT 387
 
8. Amrithakumari V. Ramanathan - 1998 (2) KLT 305
 
9. Vidyodaya Trust v. Mohan Prasad - 2007 (1) KLT 538
 
10. Vidyodaya Trust v. Mohan Prasad 2008 (2) KLT 68 (SC)
 
It is well settled that in a suit falling under Sec.92 C.P.C. no declaratory relief can be granted and even a declaration that the property is trust property cannot be granted. Vide Uma Shanker and others v. Salig Ram and others - AIR 1975 All. 36 (F.B.) and S. Guhan and Others v. Rukmini Devi Arundale and Others - AIR 1988 Madras 1.:31:
 

JUDICIAL EVALUATION
 

12. I am afraid that I find myself unable to accept the above contentions raised on behalf of the plaintiffs.
 

SCOPE OF SECTION 92 CPC
 

13. Section 92 C.P.C. enacts a complete Code in relation to the judicial administration and preservation of public religious and charitable trusts by a specified category of Court, namely, the Principal Civil court of original jurisdiction which by virtue of Section 2 (4) C.P.C. is the District Court, (See Sulekha Clay Mines v. Union of India - 2000 (1) KLT 691, AFRECO v/s. Kerala State Cashew Development Corporation Ltd. - 2001 (2) KLT (SN) 96, Bishop Dr. Mathews Mar Savarios v. Thankachan - 2001(1) KLT 932) or, any other court empowered in that behalf by the State Government. As per G.O. (MS) 384/66/Home dated 24-10-1966 published in the Kerala Gazette dated 1-11-1966, the Government of Kerala have empowered the Courts of the

A.S.No.844 of 1998 :32:
Subordinate Judges in the State within the limits of their respective jurisdiction, to try and dispose of cases under Section 92 C.P.C. Thus, with effect from 1-11-1966 the District Courts and Subordinate Courts have concurrent jurisdiction in the State of Kerala to try and dispose of suits under Section 92 C.P.C. The Munsiff's Courts are totally lacking in any jurisdiction to entertain, try or dispose of suits under Section 92 C.P.C. Since the present suit was instituted on 13-2-1976, it is the C.P.C. prior to the 1976 amendment (which came into force with effect from 1-2-1977) that is applicable in this case. Sub-section (1) of Section 92 C.P.C. prior to the amendment is also substantially the same except that the consent in writing which was to be obtained by 2 or more persons interested in the trust concerned was from the Advocate General. After amendment, such consent is to be obtained from the Principal Civil Court of original jurisdiction.
 
Section 92 as per the pre-amended C.P.C. read as follows:-
 
"92. Public charities :- (1) In the case of any alleged breach of  any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the locallimits of whose jurisdiction the whole or any part of the subject- matter of the trust is situate, to obtain a decree -
 
a) removing any trustee;
b) appointing a new trustee;
c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
d) directing accounts and inquiries;
e) declaring what proportion of the trust- property or of the interest therein shall be allocated to any particular object of the trust;
f) authorising the whole or any part of the trust- property to be let, sold, mortgaged or exchanged;
g) settling a scheme; or
h) granting such further or other relief as the nature ofthe case may require.

2) Save as provided by the Religious Endowments Act 1863, [or by any corresponding law in force in [the territories which immediately before the Ist November 1956, were comprised in PartB States] no suit claiming any of the reliefs specified in sub-section
 
(1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub- section.

Sec. 92 C.P.C. after the 1976 amendment reads as follows:-
 
92. Public charities:- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-
 
a) removing any trustee;
b) appointing a new trustee;
c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to

A.S.No.844 of 1998 :35:
the person entitled to the possession of such property;
 
d) directing accounts and inquiries;
e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
g) settling a scheme; or
h) granting such further or other relief as the nature of the case may require.
 
2) Save as provided by the Religious Endowments
 
Act, 1863, (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the Ist November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
 
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be

A.S.No.844 of 1998 :36:
applied Cypres in one or more of the following circumstances, namely;-
 
a) where the original purposes of the trust, in whole or in part, -
 
i) have been, as far as may be, fulfilled or
ii) cannot be carried out at all or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or
 
b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or
 
c) where the property available by virtue of the trust of other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
 
d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since, ceased to be, a unit

A.S.No.844 of 1998 :37:
for such purposes; or
 
e) where the original purposes, in whole or in part, have, since they were laid down,-
 
(i) been adequately provided for by other means, or
ii) ceased, as being useless or harmful to the community, or
iii) ceased to be , in law, charitable or
iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust".
 
14. Thus, leave of the Court is not necessary if the suit is of the nature referred to in Section 92 C.P.C. but is instituted by the Advocate General. Leave of the Court is insisted upon only if the suit is one falling under Sec. 92 C.P.C. and is instituted by 2 or more persons having an interest in the public trust concerned. The usage of the words "having obtained the leave of the Court, may institute a suit" occurring in Section 92 (1)
 
C.P.C. is a clear indication that leave of the Court is a condition precedent to the very institution of the suit and such leave

A.S.No.844 of 1998 :38:
cannot be given subsequent to the institution of the suit. If the case is one falling under Section 92 C.P.C. and the suit is instituted for any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1) C.P.C, failure to obtain the leave of the Court before the institution of the suit, will go to the root of the matter and is a jurisdictional defect or infirmity which cannot be cured by a post-institutional leave granted by the Court. (See for instance, paragraph 17 of R.M. Narayana Chettiar v. . Lakshmanan Chettiar - AIR 1991 SC 221). The rigid requirement of law is that the leave petition itself should contain all the necessary facts such as the nature of the public trust concerned, the alleged breach of trust or the circumstances under which the direction of the Court is considered necessary for the administration of the trust and the main reliefs prayed for in the proposed suit. It is only after the leave of the Court is obtained can the plaintiffs institute the suit as provided under Order IV Rule 1 C.P.C. (See Amrithakumari v. Ramanathan - 1998 (2) KLT 305). Grant of leave being a jurisdictional pre-condition, any consent, waiver or acquiescence on the part of the opposite party either in the pleadings or

A.S.No.844 of 1998 :39:
otherwise, will not cloth the Court with the jurisdiction to entertain the suit, leave alone, try and dispose of such suit.
 
Conversely, if the suit has been instituted after obtaining the leave of the Court, that by itself will not preclude the Court from revoking the leave already granted if the Court is thereafter convinced that the suit is not one falling under Section 92 C.P.C. (Vide St. Mary's Church v. Saju - 2001 (2) KLT 6). In such an event, the suit will have to be filed before the proper Court having jurisdiction to try such suit. Eventhough the Court is not bound to give notice to the proposed defendants before granting leave under Sec. 92 C.P.C as a rule of caution, Court should normally give notice to the defendants. (Vide R.M. Narayana Chettiar's Case - Supra). It is important to remember that a suit under Sec. 92 C.P.C. is a representative suit and the decision in the suit will bind not only the parties to the suit but also all persons interested in the public trust concerned. (Vide P. Venugopala Naidu v. Venkita Raghulu Naidu Charities - AIR 1990 SC 444).
 
15. What is to be examined now is the question as to which are the types of cases in which leave of the Court is

A.S.No.844 of 1998 :40:
necessary if the suit is instituted by 2 or more persons having an interest in the public trust concerned.
 
Leave of the Court is necessary before instituting the suit (whether contentious or not ).
 
(a) i) if there is an allegation of breach of any public trust (express or constructive) of a charitable or religious nature,
or
ii) where the direction of the Court is necessary for the administration of any such trust.
 
AND
(b) the suit is to obtain a decree for any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1) C.P.C.
 
16. It has been held that merely because the suit contains a declaratory relief it will not take the suit out of Section 92 C.P.C. (See Amirithakumari's case (supra). The law does not insist that any 2 or more persons interested in the public trust concerned should invariably institute a suit. It is up to them to decide whether a suit is to be filed or not. But, if a suit is filed and going by the nature of the suit it falls within the parameters of Section 92 C.P.C., then such suit will be maintainable only if leave of the appropriate Court prior to its institution has been

A.S.No.844 of 1998 :41:
obtained. As already noticed, it is not every Court which is competent to grant the leave to institute the suit. It is only the principal Civil Court of Original jurisdiction or the empowered Court which can grant the leave and thereafter entertain the suit.
 
17. A trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or for the benefit of another and the owner. The person who reposes or declares the confidence of the trust is called "the Author of the Trust". The person who accepts the confidence is called "the trustee". The person for whose benefit the confidence is accepted is called "the beneficiary". The subject matter of the trust is called "the trust property" or "the trust money". The beneficial interest of the beneficiary is his right against the trustee as the owner of the trust property. The instrument, if any, by which the trust is declared is called "the instrument of trust". A breach of any duty imposed on the trustee as such by any law for the time being in force is called a breach of trust" (Vide Section 3 of the Indian Trusts Act,

A.S.No.844 of 1998 :42:
1882). A trust includes endowments for religious and charitable purposes. As already noted, Sec. 92 C.P.C. is attracted only in respect of suits pertaining to public trusts. A public trust means an express or constructive trust for either a public religious or a public charitable purpose or both and will include a temple, a math, a wakf, a church, synagogue or other place of public religious worship. An express trust is a trust created by express words as distinguished from an implied trust. a constructive trust is a trust arising by operation of law apart from any intention to create a trust. The main distinction between a private trust and a public trust is that in the former the beneficiaries are specific individuals whereas in the latter the beneficiaries are the general public who are incapable of ascertainment. (See Deoki Nandan v. Muralidhar and Others - AIR 1957 SC 133 and The Bihar State Board of Religious Trust v. Mahanth Sri. Biseshwar Das - AIR 1971 SC 2057) - 'Endowment" is a dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment. (Vide Pratap Singhji v. Charity Commissioner - AIR 1987 SC 2064).

A.S.No.844 of 1998 :43:
Endowment also means a permanent provision for any institution or person or any property belonging to, given or endowed for religious or charitable purposes.
 

WHETHER THE PRESENT SUIT IS BAD FOR WANT OF LEAVE UNDER SECTION 92 CPC ?
 

18. There is no dispute that the St. Thomas Orthodox Syrian Church, Nechoor is a public religious trust within the meaning of Sec. 92 (1) C.P.C. It is specifically admitted in the plaint that the 2nd defendant was appointed as the Vicar by the Metropolitan as per an order of appointment. It is also admitted that defendants 4 and 5 are trustees of the said Church and duly approved by the Metropolitan. Even as per the 1934 Constitution relied on by the plaintiffs the Vicar is a co-trustee.
 
In paragraph 7 of the plaint what is pleaded is that the suit is instituted for the protection and benefit of the Ist defendant church and that the plaintiffs are safeguarding the interests of the church. The property scheduled to the plaint is the 76 = cents of land comprised in survey Nos. 388/3, 428/5, 346/16, 428/4 and 147/8 of Maneed Village where the massive church building, its courtyard, cemetery, chapel, 3 coffers , buildings

A.S.No.844 of 1998 :44:
just outside the compound wall etc. are located. As per prayer
 
(c) in the plaint, the 2nd defendant the Vicar is sought to be injuncted from performing one of his duties, namely, convening a meeting of the parishners on 15-2-1976 or any other day and defendants 3 to 5 are also sought to be restrained from holding a meeting of the parishners of the church. If a decree in terms of prayer (b) in the plaint is granted, then it will have the effect of ousting (removing) the 2nd defendant from trusteeship and installing the 5th plaintiff in the place of replacing the 2nd defendant and directing 2nd defendant by a mandatory injunction to deliver possession of the trust property to the 5th plaintiff which squarely attracts clause (cc) of Sec. 92 (1) C.P.C. The keys and registers of the church are the visible manifestations in the form of tangible instruments signifying possession of the church with a particular person. When those keys and records are requested to be handed over to the 5th plaintiff by means of a decree for mandatory injunction to be issued to the 2nd defendant who is admittedly in possession of those items in his capacity as the Vicar, the case indubitably falls under clause (cc) of Section 92 (1) C.P.C. In paragraph 11 of the plaint, it is

A.S.No.844 of 1998 :45:
alleged that defendants 2 to 5 are acting against the interests of the Ist defendant church at the instigation of the 6th defendant who has no manner of right over the management of the church.
 
It is also alleged that defendants 2 to 5 have been acting illegally and in furtherance of their own interests and contrary to the terms of the Constitution of the Church. Paragraph 15 of the plaint alleges misuse of trust funds. Defendants 6 and 7 who were admittedly appointed as the diocesan Metropolitan and Malankara Metropolitan, respectively are even sought to be injuncted against entering the Church. The said averments including those pertaining to misuse of trust funds amount to an allegation of breach of trust and the plaintiffs are seeking the intervention of the Court by means of the reliefs prayed for in the suit. I have, therefore, no hesitation to conclude that the suit is one which squarely falls under Section 92 (1) C.P.C. This conclusion of mine is fortified by the decisions in Chairman Madappa v Mahanthadevaru - AIR 1966 SC 878, Harendra Nath Bhattacharya and others v. Kaliram Das - AIR 1972 SC 246 and Narayana Chettiar's Case (Supra).
 
Admittedly no petition was filed seeking leave under Sec. 92 (1)

A.S.No.844 of 1998 :46:
C.P.C. nor was leave obtained under Sec. 92 (1) C.P.C. prior to the institution of the suit.
 
19. The contention raised on behalf of the plaintiffs that the defence plea under Sec. 92 C.P.C. is barred by res judicata by virtue of Explanation VI to Section 11 C.P.C. also does not merit acceptance. According to the plaintiffs out of the 8 suits disposed of by a learned Judge of this Court as O.S. Nos. 1 to 8 of 1979 the bar under Section 92 C.P.C. was raised in O.S. Nos. 1 and 5 of 1979 and a specific issue was raised in O.S. 5/1979 as to whether the said suit was barred for want of leave under Section 92 C.P.C. The finding in O.S. 5 of 1979 was that the defendants were unable to show that the suit was bad for want of leave under Section 92 C.P.C. The said finding was recorded in a representative suit. The said finding was not challenged either before the Division Bench in appeal or before the Apex Court in further appeal which culminated in P.M.A. Metropolitan's case. AIR 1995 SC 2001. It is further contended that since the said suit was a representative suit, the finding entered therein will operate as res judicata not only against the parties thereto but also against all persons

A.S.No.844 of 1998 :47:
having the same common interest. I am afraid that I am unable to accept the above contention. There were more than two hundred suits filed in various civil courts in the State in respect of different parish churches. Those two hundred and odd suits were among the 1065 churches under the Malankara Association. It was 8 out of those 200 and odd suits which were transferred to this Court by virtue of an order passed by the Supreme Court of India in Civil Appeal No. 2222/1979. Those 8 suits were tried and disposed of by T. Chandrasekhara Menon, J. on 6-6-1980. All those suits were in respect of eight different parish churches. It was only in one suit namely O.S. 5/1979 that the learned Judge held that the said suit was not shown to be bad for want of leave under Section 92 C.P.C. That finding, even if it was not challenged further in that litigation, cannot operate as res judicata as against the parishners of other churches. Moreover, if the above contention of the plaintiffs is extended to its logical conclusion, then for all the 1000 and odd parish churches under the Malankara Association, there need only be one representative suit and the findings entered thereon will operate as res judicata under Explanation VI to Sec. 11

A.S.No.844 of 1998 :48:
C.P.C. The argument that the defence based on Section 92 C.P.C. is barred by res judicata is, therefore, unsustainable.
 
20. There is no dispute that the contesting defendants had in their joint written statement specifically pleaded that the suit was bad for want of leave under Sec. 92 C.P.C. The Court below was acting illegally in not framing an issue in that behalf since such an issue directly arose from the pleadings. Failure on the part of the respondents/defendants to raise the objection regarding want of leave under Sec. 92 C.P.C. in the cross- objection as originally filed before this Court or the belated incorporation of the said objection in the cross-objection by way of subsequent amendment etc. are all beside the point. This is because, want of leave is a fatal defect in the very institution of the suit and even if the objection in that regard was not raised by the defendants the court was bound to apply the law whether an issue in that regard was framed or not.
 
Moreover, in this appeal by the plaintiffs, the defendants need only support the decree and they can assail the judgment on the ground of Section 92 C.P.C. as well even without any cross-

A.S.No.844 of 1998 :49:
objection. As observed earlier, it was essentially the duty of the Court to see whether on the plaint averments the suit was not barred under Section 92 C.P.C.

21. The question as to whether it is the 1934 Constitution which governs the Church in question which is admittedly a Church under the Malankara Association can fall for consideration only in a properly instituted suit.
 
22. The result of the foregoing discussion is that the suit which was instituted without leave under Section 92 C.P.C. was not maintainable. Even if leave was sought under Sec. 92 C.P.C. in this case, that would be of no avail, since the suit was filed before the Munsiff's Court which was totally incompetent to entertain a suit under Sec. 92 C.P.C. Merely because the suit was subsequently transferred to the designated Church Court which is presided over by an additional District Judge, the suit will not become one instituted before the principal civil Court of original jurisdiction even assuming that leave under

A.S.No.844 of 1998 :50:
 
Section 92 C.P.C. was obtained from that Court in advance.
 

CONCLUSION
 

23. This appeal is therefore, dismissed and the cross- objection filed by the contesting defendants, to the extent that it has raised the above objection regarding want of leave under Section 92 C.P.C. is allowed. The suit will stand dismissed as not maintainable. The plaintiffs would consequently be disentitled to any of the reliefs prayed for in the plaint. The parties shall, however, bear their respective costs in this appeal.
 

NOT AN IMPIOUS EPILOGUE
 

It is distressingly sad to note that day by day, the rift between these two warring factions (the Catholicos and the Patriarch factions) among the Syrian Christians, only deepens with no sign of re-union or togetherness. Every one knows that the bad blood, scramble and acrimony are all for spiritual and temporal supremacy of one group over the other. An ugly transmutation recently discernible is the offer for a peace- pact by the formation of separate churches of the rival

A.S.No.844 of 1998 :51:
factions in the same compound. This will only help to polarise the worshipping polity into discordant groups.
 
Merely because the right of dissent is a logical concomitant of the freedom of speech and expression, there is no reason why it should be pugnaciously exercised in the sacred abodes of God as well. Gallantry, heroism and individuality are very often seen expressed by defying the Creator or questioning the leader. May be, some people believe in the harmony of brotherlihood through dissension ; or may be, the misplaced realisation that there is nothing more powerful than the Plutocratic clout. What a legitimate exercise of the fundamental right to freely profess, practice and propagate religion !

 

Dated this the 14th day of October 2009.

Sd/-V. RAMKUMAR,

JUDGE


Source:
www.highcourtofkerala.nic.in

 

 

 

 

 

 
       
       
       
 

 

 

 
       
 

 

 

 
 

 

 

 
   
       
       
 
   

 

   

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