Another Landmark Judgment
- Dear all,
I am giving below the relevant portions of another landmark judgment from a court in Thrissur on our Church case. Vattai St. Mary's Church was functioning peacefully until 2002 with a priest Rev. Fr. Paulose Chettiayara appointed by me. He was forcefully evicted by few anti social elements in the Church. We approached the court. The case was not successful on technical reasons. We rectified it and filed it again. Now we have the judgment. A victory of truth and justice. The result of this judgment will not be seen in the Church soon as they have applied for time to file appeal. Time was allowed, but no stay to the judgment. But we can not enter the Church due to fear of closure of the Church and of the same anti social elements. We have to wait some more time until the appeal is heard and the judgment is executed. But this is the beginning. We will finally see the end of the tunnel for sure as we stand for unity, justice and peace.
Yours in Christ
Yuhanon Mor Meletius Metropolitan, Thrissur
THE RELEVANT PORTIONS OF THE JUDGMENT
The plaintiffs (applicants) are Rev. Fr. Joy Pulikkottil, the vicar appointed by me to Vattai St. Mary's Church and five other lay members of the Church.
The defendants are the present unauthorized priest Rev. Fr. Issac Karippal of the Jacobite Syrian Christian Association Church headed by Thomas I.
The relevant portions of the judgment is given below.
Para 8. Issue No. 1. This case is the result of a dispute between two groups of Christian community know as Catholicos group and patriarch group coming under the denomination of Malankara Orthodox Suriyani Sabha. The plaintiff's case is that the St. Mary's Church Vattai is a Church of Malankara Suriyani Sabha. His claim is that he is the vicar of the above church duly appointed by the diocesan metropolitan of thrissur. HG Yuhanon Mar Militios, as per his order dated 15-10-2005. This church is one of the 1064 churches included in the second round of litigation ending in AIR 1995 SC 2001 and was when included in cochin diocese, Yuhanon Mar Militios is the present diocesan metropolitan of Thrissur diocese of the Malankara Orthodox Suriyani Sabha and he alone is having the authority to appoint vicar for the above Church.
Para 9. The defendants' case is that, first defendant is the duly appointed vicar of the St. Mary's Church Vattai. He was appointed by Thomas Dionysius, presently know as Yousebius Kuriakose the diocesan Metropolitan of their association and Yousebiyous Kuriakose alone is having authority to appoint the vicar of St. Mary's Church, Vattai .
Issue No. 1. (Para 19). So the above evidence would go to show that the plaint Church i.e. St. Mary;s Church Vattai, is the church belonging to Malankara Orthodox Syrian Church.
Para 20. Now the next question is whether the plaintiff is the vicar of the plaint church duly appointed by the diocesan Metropolitan or whether the first defendant is the vicar of this church duly appointed by the concerned authority.
Para. 22. Defendents' case is that, Yuhanon Mar Militios is not a legally appointed bishop and he cannot appoint a vicar to the plaint Church. Their case is that, he was first suspended and subsequently expelled from bishopship by His Holiness Ignatius Zaka 1st patriarch. To prove this aspect, defendants have produced Ext. B11 and 12. These documents were marked subject to objection. Ext. B11 and B12 claimn to be the copies of the orders made by Ignatius Zaka 1st, patriarch. These two documents are not even properly attested. It is seen signed by the secretary of Jacobite Syrian Christian Church. It is not stated that this copy was compared with the original. As per section 63 of Indian Evidence Act, only a copy made from and compared with the original can be admitted as secondary evidence. So, I am of the opinion that Ext. B11 and B12 cannot be admitted in evidence and they cannot be looked in to. So, there is no evidence to show that Yuhanon Mar Militios was suspended, and later he was expelled from bishopship. As per the judgment of the Supreme Court reported in 2002 (1) KLT 125 (SC) with the consent of both parties, 1934 constitution was amended and election was conducted to the Malankara Association, under the supervision of the observer, Chief Justice Malimat. Of course, the election was boycotted by the patriarch group headed by Thomas Dionysius. But, in the election it was decided that Mar Baslius Marthoma II is the Malankara Metropolitan. In the election, as per Ext. A4 the Plaint Church also participated. The Ext. A5 report was accepted by the Hon'ble Supreme Court and it has become final. So, as per the election held on 20//3/2002. Now Moran Mar Baselius II is the Malankara Metropolitan of the Malankara Orthodox Syrian Christian Church. As per Ext. A2 order, Mar Baselius Marthoma II has appointed Yuhanon Mar Militios as Metropolitan of Thrissur Diocese. As per Ext. A3 Yuhanon Mar Militios, Metropolitan of Thrissur Diocese has appointed the first plaintiff as the Vicar of the plaint Church. Ext. A1 is the 1934 constitution of Malankara Orthodox Syrian Christian Sabha. As per Ext. A1, only the metropolitan can appoint, remove and transfer a vicar of Vattai Church. So it can be seen that Yuhanon Mar Militios, Metropolitan of Thrissur Dicoese of Malankara Orthodox Syrian Christian Church was appointed by Mar Baselius Marthoma II, Malankara Metropolitan and Catholicos, only Yuhanon Mar Militios can appoint a vicar in the Church of Malankara Orthodox Syrian Church in Thrissur diocese.
23. The learned counsel for the defendants has argued that the plaint Church is a public trust and independent in character. The parish assembly of plaint has accepted Ext. B3, 2002 constitution. So, according to him, 1934 constitution is not applicable and Yuhanon Mar Militios has no control over the plaint Church. As per the documents produced by the defendants, from 2003 onwards, the first defendant was functioning as the vicar of the plaint Church. Ext. B2 order issued by Athanasius Geevarghese Metropolitan. As per Ext. B5, in the General body meeting of the plaint Church on 2002, the first defendant was recognized by the parish Assembly as the vicar. In the same meeting, they have decided to accept 2002 constitution.
24. According to the learned counsel for the defendants, since the parish assembly has accepted 2002 constitution, then 1934 constitution has no application. Yuhanon Mar Militios is not having authority over the plaint Church. He argued that, the plaint Church can disassociate from Malankara Orthodox Syrian Church and to form or accept any other association. He further argued that, in 1995 Supreme Court 2001, the rights of the parish Churches were not determined by the Supreme Court. Church has the right to form a separate association by leaving Malankara Association under Articles 19, 25 and 26 of Indian Constitution. He further argued that Yuhanon Mar Militios has already filed a suit Ext. B13, OS 943/02 before Sub-Court, Thrissur, about 37 Churches including the plaint Church. There, he filed I.A. 4768/02, for temporary injection. But it was dismissed by Hon'ble Sub-court, as per Ext. B14 order. Against that order Yuhanon Mar Militios filed CMA No. 74/2003 before District Court, Thrissu and it was dismissed, as per Ext. B15 order. Relying on Ext. B13 to B15, the learned counsel has argued that, there is already a pending suit before the sub-court, by Yuhanon Mar Militios regarding the plaint Church and the present suit is filed by the vicar appointed by the said militias, regarding the plaint Church. So according to him, the suit itself is not maintainable. I am not inclined to accept the above argument of learned counsel for the defendants because, the pendency of Ext. B13 suit is not a bar to entertain the present suit. The principle of resjudicata Us/ 11 of CPC will apply only when the other suit was finally decide. Ext. B14 and B15 are the orders in interim application and civil miscellaneous appeal. By Ext. B14 and B15, the court has not finally disposed the case. So the decision has not become final. Moreover, Ext. B15 is based on the ruling reported in 2003 (1) KLT 780 Moran Mar Baselius Marthoma Mathews II Vs. State of Kerala. But in 2007 (3) KLT 349 (SC) Hon'ble Supreme Court has held that "any observation made by the High court in the above ruling should not influence the courts concerned in arriving at their independent decision in respect thereof, all contentions of the parties shall remain open". So it cannot be held that the Church has the right to form a separate association and is entitled to leave the Malankara Association. It is also cannot be held that in the decision AIR 1995 (SC) 2001, Hon'ble Supreme Court has not determined the rights of the parish Churches. So, in my view the above ruling of the Hon'ble High Court 2003 (1) KLT 780 will not help the defendants.
25. In the judgment reported in AIR 1995 (SC) P.M.A. Metropolitan Vs. Moran Mar Marthoma, Hon'ble Supreme Court has held that "1934 constitution was approved at a validly convened meeting of the Malankara Association, which association was created by the Patriarch himself under the resolutions of Mulanthuruthy Synod. The defendants in the present suit (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 this court in AIR 1959 (SC) 31, Ext. A19 Kalpana was issued by patriarch Yakub with the full knowledge of the revival of Catholicate. Ext. A14 and 1934 constitution and the various claims and contentions of the both parties put forward in Samudayam suit and the decision of this court in Air 1959 (SC)31. It must therefore be held that the patriarch has thereby accepted the validity of the revival of Catholicate. Ext. A14 and 1934 constitution and abandoned and gave up all or any objections they had in that behalf. Several members of his group including some of the defendants also accepted the constitution. They cannot now turn around and question the same. So far as the declaration of the Malankara Church being Episcopal in character is concerned, all we need to hold is that it is Episcopal to the extent it is so declared in 1934 constitution. The said constitution also governs the affairs of the parish churches and shall prevail".
26. So, as per the judgment of the Hon'ble Supreme Court only 1934 constitution will prevail. As per the article 23 of the above constitution, for purchase and sale of the Church properties, the parish assembly has to obtain the written consent of the Metropolitan. As per the article 14, only the Diocesan Metropolitan appoint and remove the vicar of the Church. So, on going through the 1934 constitution, a church belonging to Malankara Orthodox Suriyani Sabha cannot disassociate from the Sabha and form a new association. They are all bound by the 1934 constitution and Moran Mar Baselius Marthoma Mathews II is the Malankara Metropolitan and Yuhanon Mar Militios is the diocesan Metropolitan of Thrissur. Only he can appoint a vicar to the plaint Church.
27. The learned counsel for the defendants has argued that, plaintiff has admitted that he is the vicar of St. Mary's Church Mannuthy. He is working there as vicar for the last 20 years. Relying on the above admission, learned counsel has argued that, he cannot seek a declaration to declare him as the vicar of the plaint church. I am not inclined to accept the above argument because the plaintiff's case is that the diocesan metropolitan has appointed him as the vicar of the plaint church, as per Ext. A3 order. He was not allowed to enter the plaint church by the defendants and so he could not function as the vicar of the plaint church. So he has approached this court for a declaration and consequential injunction. I do not think that since he was working as a vicar of St. Mary's Church Mannuthy, he cannot seek for a declaration on the basis of Ext. A3 order.
28. From the above discussion, I came to the conclusion that Mar Baselius Marthoma Mathews II is the Malankara Metropolitan as decided in the election conducted under the supervision of retired chief Justice Malimat. Yuhanon Mar Militos was ordained by Malankara Metropolitan Mar Baselious Marthoma Mathews II as the diocesan Metropolitan, Thrissur. The first plaintiff herein was appointed by Yuhanon Mar Militios as the vicar of the plaint church, as per Ext.A3 order dated 15.10.2005. Therefore, I hold that the first plaintiff is entitled for a declaration that he and his successors appointed by Yohannan Mar Militios alone are entitled to function as the vicar of the plaint Church, i.e. St. Mary's Church, Vattai. The issue is answered in favor of the plaintiff.
29. Issue No. 2. I have already found that the plaintiff is entitled for a declaration as prayed for. His further prayer is to restrain the first defendant and his successors from functioning as the vicar of the plaint Church and from obstructing the functioning of the first plaintiff and his successors as the vicar of the Church. The defendants claimed that the first defendant is the vicar duly appointed and defendants 2 and 3 are the trustee and secretary of the parish of the plaint Church. But I have already found that the first defendant cannot function as the vicar of the plaint Church since, he was appointed by Thomas Dionysius a bishop who has been restrained by Hon'ble High Court from functioning as a bishop. Moreover, only the diocesan metropolitan of Thrissur Yuhanon Mar Militios alone is competent to appoint a vicar to the plaint church. PW1 has deposed that he was prevented by the defendants from functioning as the vicar of the plaint church. He being the legally appointed vicar of the plaint church is entitled for an injunction against the defendants from obstructing his functioning as the vicar of the plaint church. He is also entitled to restrain the first defendant and his successors from functioning as vicar of the plaint church. If an injunction is not granted, the first plaintiff can never function as vicar of the plaint church even though he was legally appointed by the diocesan metropolitan of the Malankara Sabha. The first defendant a vicar not legally appointed by the metropolitan of the Malankara Sabha will be functioning as the vicar. So, the balance of convenience and injury aspect are also in favour of the plaintiffs. So, I am of the opinion that plaintiffs are entitled to get an injunction as prayed for. This issue is also answered in favour of the plaintiffs.
(Para 30) Issue No. 3. In view of my findings on issue no. 1 and 2 the suit is liable to be decreed. Accordingly the suit is decreed.
It is hereby decreed that the first plaintiff (Rev. Fr. Joy Pulikkottil appointed by Yuhanon Mar Militios) and his successors appointed by Yuhanon Mar Milithios alone are entitled to functioning as the vicar of the St. Mary's Church, Vattai, and the first defendant and his successors are hereby restrained by way of a permanent prohibitory injunction from functioning as the vicar. The defendants are restrained from obstructing from functioning of the first plaintiff and his successors as the vicar of the St. Mary's Church, Vattai. Having considered the facts and circumstances the parties are directed to bear their respective costs.
(Directed to the confd. Assistant, transcribed by her, corrected and pronounced by me in the open court on this the 16th day of October, 2009).
K.T. Nisar Ahmed
II Adl. Munsiff