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PALAKUZHA CHURCH

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  • Chev. Philip John
    -- DEAR FRIENDS, 1] We have seen messages and postings regarding Judgement by First Additional District Judge ,Ernakulam, in Palakuzha church case, in the
    Message 1 of 1 , Jan 30, 2010
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    -- DEAR FRIENDS,

    1] We have seen messages and postings regarding Judgement by First Additional District Judge ,Ernakulam, in Palakuzha church case, in the forum of our Sister Church.[ Malankara Orthodox Church]. It will seem as if it is the end of the world as far as the litigation of that Parish is concerned.

    2] It is the trial court's view without considering important Constitutional questions raised before the Judge. The judge did not enter any conclusions on the Constitutional issues raised before her.IT IS A VERY ORDINARY JUDGEMENT BY A VERY ORDINARY JUDGE.

    3] The said judgement was immediately challenged by the Jacobite Church members of Palakuzha Church who were the defendants therein. The number of the Appeal is RFA 38 OF 2010[ REGULAR FIRST APPEAL.]*The entire judgement has ****been **stayed by the Honorable High Court of Kerala. ****

    4] I am enclosing herewith the Appeal Memorandum of the said Appeal for the information of all concerned ****including members of the MALANKARA ORTHODOX CHURCH.****
    =====================================================================
    **** BEFORE THE HONORABLE HIGH COURT OF KERALA,ERNAKULAM
    R.F .A NO 38 OF 2010

    [ Challenging the judgment dated 16.1.2010 in O.S No 50 of 2003 of the
    First Additional District Court, Ernakulam]

    BETWEEN
    APPELLANTS/DEFENDANTS

    [1] ST;John’s Jacobite Syrian Orthodox Church,[Kappil Pally], Palakuzha Village, Muvattupuzha,

    [2] Fr Varghese Edumariyil, aged 60,Edumariyil House, Mekkadampu,
    Muvattupuzha,

    [3] Scariah, aged 61, son of Varghes, residing at Kallanayil House,
    Moongamkunnu, Palakuzha,

    [4] Abraham Avirah, Son of Avirah, aged 55, Avalumthadathil, Karimpana
    [PO], Palakuzha

    VS

    RESPONDENTS/PLAINTIFFS

    [1] Fr Shibu John,S/o Kuriakose Paily,aged 36,claiming to be vicar,
    ST;John’s Orthodox Church, Palakuzha

    [2] John Thomas,son of Thomas, aged 74, Kusumakunnu, Kulirankal,
    Palakuzha,

    [3] T.T Paulose, son of Thomas, aged 51, Tholanikunnel, Palakuzha

    Notice and processes on the Appellants may be served on their Counsel MR P .J Philip, Advocate, 55/2519, Chilavannoor Road, Kochi-682020

    Notice and processes on the respondents may be served on the respondents in the above address or on their counsel as and when engaged

    MEMORANDUM OF FIRST APPEAL UNDER ORDER XLI RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE BY THE APPELLANTS CHALLENGING THE JUDGEMENT AND DECREE DATED 16.1.2010 IN O.S NO 50 OF 2003 OF THE FIRST ADDITIONAL DISTRICT COURT, ERNAKULAM.

    [1] The Appellants, the defendants in O.S No 50 of 2003 of the First
    Additional District Court, Ernakulam,were sued by the respondents herein for a decree of declaration that the first Appellant Church is to be managed and administered by the 1934, Constitution of Malankara Orthodox Church and for consequential reliefs following therefrom. Sanction under Section 92 of the Code of Civil Procedure, 1908, was obtained by the respondents/plaintiffs for instituting the suit,

    [2] The reliefs asked for in the suit are as follows, viz;

    ‘[a] A decree of declaration that 1st defendant church, its
    three chapels and properties are to be administered and managed by 1934, Constitution,

    [b] A decree removing defendants 3 and 4 as trustees of 1
    st defendant church;

    [c] Pass a decree of permanent prohibitory injunction restraining defendants 3 and 4 from functioning as trustees of the 1stdefendant church,

    [d] A decree of permanent prohibitory injunction restraining the defendants 2 to 4 or any body claiming under them from bringing any Vicar/priest to 1st defendant church or its chapels for Holy Services or any other religious or spiritual functions other than those appointed by Metropolitan of Kandanad Diocese East in accordance with 1934, Constitution

    [e] decree of permanent injunction restraining the 2nd defendant from
    discharging the duties of Vicar/priest of 1st defendant church,

    [f] A decree of permanent prohibitory injunction restraining defendants 2 to 4 or any body claiming under them from causing any let or hindrance or any kind of obstruction to 1st plaintiff in convening the pothuyogam of 1st defendant church and conducting election to managing committee and lay trustees in accordance with the 1934, Constitution,----

    [3] There was an earlier suit, O.S No 166 of 1977 of the same Court, between the representatives of the two rival groups[ originally filed as O.S No 17/1977 of the Munsiff Court, Muvattupuzha] . The second Appellant herein was the Additional fifth defendant therein. The plaint in that suit was marked as Exhibit B-24 in this suit. The reliefs were the following, viz;

    ‘ A] Declaring that the plaint Palakuzha St John’s Church also called Kappil Church and cemetery and its assets scheduled hereinbelow are to be administered in all matters spiritual and temporal under the Episcopal authority of Moran Mar Basselios Mar Thoma Mathews I, Catholicos and Malankara Metropolitan and the Kandanad Diocesan metropolitan Joseph Mar Pakkomios and whomsoever may succeed them in office under the Constitution governing the Malankara Orthodox Syrian Church and that the right to appoint Vicar and priests for the said church is vested in them,

    B] Restraining by permanent injunction the 3rd and 4th defendants or any other religious dignitary not appointed or functioning under the said Mar Thoma Mathews I Catholicos and MalankaraMetropolitan and metropolitan Joseph Mar Pakkomios and whomsoever may succeed in their office under the 1934, Constitution of Malankara Orthodox Syrian Church,from entering, officiating or anyway interfering in any matter or religious worship and administration of the plaint church, cemetery, chapels, crosses and institutions scheduled hereinbelow;---------‘

    [4] During the pendency of the suit ,O.S No 166 of 1977 in the court below, interim orders were passed, in IA 196 of 1987 , allowing both the rival factions in the parish to conduct religious services on alternate weeks. It was found that no relief whatsoever was asked for against defendants 1 and 2 who were admittedly the trustees.It was found that the suit has abated due to death of defendants 3 and 4. The judgment became final.The Appellants did not prevent the conduct of services in the first Appellant Church by the respondent’s section even though the Suit instituted for exclusive control of the church was dismissed by B-26 judgement,

    [5] O S No 50 of 2003 was instituted thereafter after obtaining sanction under Section 92 of the Code of Civil Procedure, 1908, for reliefs similar to O S No 166 of 1977 [ B 24 suit] , styled ingenuously in a different manner. Written Statement was filed contending inter alia that the suit is not maintainable,that the judgement rendered in O.S No 166 of 1977 has become final,that the plaint church by decisions taken in its Parish Assembly held on 30.6.2002 has decided to join the Jacobite Syrian Christian Association under the spiritual Head of the Syrian Church, that the metropolitan of the Malankara Orthodox Church has no authority to appoint priests/vicars to the plaint church, that the object of foundation of the plaint church was to have religious services conducted therein by only those religious dignitaries who possess the spiritual grace emanating from the Apostolic Throne of St Peter at Antioch through the Patriarch of Antioch, that joining the Jacobite Syrian Christian Association is consistent with the object of foundation of the first Appellant Church,that the Malankara Orthodox Church is another unit of the Syrian Orthodox Church under the Patriarch of Antioch and they have no exclusive rights over the plaint church,that the plaint church have the fundamendal right under Article 19[1][c] read with Articles 25 and 26 of the Constitution of India to associate itself to the Association of its choice to protect its object of foundation,that AIR 1995 SC 2001 ,does not grant any relief with respect to the plaint church and its properties etc.

    [6] Evidence was adduced by both the plaintiffs and defendants. The plaintiffs examined two witnesses and marked Exhibit A 1 to A 14.

    The defendants/Appellants examined DW 1 to DW 4 and marked Exhibits B-1 to B-26.

    After detailed argument and filing of Written Submissions spreading over a period of one and half years, the court below has now decreed the suit allowing reliefs [b] to [f] by the impugned judgement . Aggrieved by the said judgement the Appellants are preferring this Appeal on the following grounds among others, viz;

    GROUNDS

    [1] The impugned judgement is incorrect, illegal, unconstitutional and is the result of wrongful exercise of jurisdiction vested in the court below by law,

    [2] The impugned judgement is grossly erroneous in excluding the majority of the parishioners from the conduct of religious services and administration of the first Appellant Church. It amounts to ousting the majority of the parishioners from the plaint church,

    [3] The impugned judgement has not followed the binding decisions of the Honorable Supreme Court of India while deciding Issue No 1. The said decisions are Pragdasji VS Ishwarlalbhai- AIR 1952 SC 143, Bishwanath VS Sri Thakur Radha Ballabhji-AIR 1967 SC 1044, and Harendra Nath Vs Kaliram Ds-AIR1972 SC 246.It was contended on the basis of these binding decisions that a declaratory relief cannot be granted in a suit instituted under Section 92 of the Code of Civil Procedure, 1908 and as such relief [a] in the suit is not grantable.

    [4] The impugned judgement specifically holds at paragraph 8 that the first relief [a] is outside the scope of S.92 CPC It should have been found that reliefs [b] to [f] are consequential to relief [a] and, therefore, are not liable to be granted in the absence of the declaratory relief prayed for as relief[a]. The impugned judgement, having not granted relief [a], ought not to have allowed the consequential reliefs [b] to [f]. This approach of the Court below is fundamentally erroneous and, therefore,liable to be interfered with by this Honorable Court.

    [5] It should have been found that the cause of action in the present suit is the claim by the first plaintiff to be the vicar. The earlier suit,O.S No 166 of 1977,was to establish the authority of the predecessor of the present first plaintiff and his successors-in-office as Vicars of the plaint church. In both the suits rights are claimed on the basis of 1934, Constitution. Since the previous suit-OS No 166 of 1977 of this Court- was dismissed as abated by Exhibit B -26 Judgement, this suit is barred under Order XXII Rule 9 of the Code of Civil Procedure, 1908.

    [6] It should have been found that defendants 1 and 2 in B-24 suit were the then trustees and defendants 3 and 4 in the present suit are their successors-in-office. The cause of action ,should have been found to be the bundle of facts necessary to be established to get the reliefs asked for in the suit and not merely what is stated by the plaintiffs in the paragraph allotted to describe the cause of action. The most essential fact for the same is the claim of the plaintiffs in the two suits about the applicability of 1934, Constitution. It should also have been found that the plaintiffs and defendants in the present suit are successors-in-office of the plaintiffs and defendants in O S No 166 of 1977-B 24 suit. At any rate both the parties in this suit claim under the parties in B 24 suit which was dismissed as abated.

    [7] It should have been found that the reliefs in the present suit is also barred under Order 2 Rule 2 of CPC,1908.The plaintiffs in O S No 166 of 1977- B 24-omitted to sue defendants 1 and 2 in that suit for removing them and for election of new trustees through the first plaintiff therein. The present suit for such a relief is,therefore, barred under Order 2 Rule 2 ,CPC,1908.

    8] It ought to have been found that the issue as to whether the plaint
    church represented by the majority of its parishioners can opt to associate itself with the Jacobite Syrian Christian Association in exercise of the fundamendal right under Article 19[1][c] of the Constitution of India involves interpretation of the provisions of the Constitution of India and it is a substantial question of law as to the interpretation of the Constitution -the determination of which is necessary for the disposal of the suit. It should, have been found that the court below has no jurisdiction to take a decision on the said issue being barred under Article 228 of the Constitution of India.Having found that it is necessary to decide the issue involving the interpretation of Article 19[1][c] of the Constitution, the court below should have referred the case to this Honorable Court-Ganga Pratap Singh VS Allahabad Bank- AIR 1958 SC 293. The findings entered on issue Nos 2 to 4 are vitiated for this reason alone,

    [9] The impugned judgement has wrongly understood the history of the Church in general at paragraphs 12 to 15 of the impugned judgement. The submission of the defendants in this regard is not even referred to and the view point is only that of the plaintiff’s faction.

    [10] The impugned judgement is fundamentally erroneous in relying upon the minority judgement rendered by Justice Sahai in AIR 1995 SC 2001 which does not reflect the operative decision of the Apex Court, thus vitiating the judgement as a whole. It should have been found that the Learned Judges of the Apex Court have considered the conclusions of Justice Sahai as a minority view . This is clear from the directions given to frame the decree in AIR 1997 SC 1035. Not a single conclusion contained in Justice Sahai’s judgement is part of the decree of the Supreme Court of India following the judgement reported in AIR 1995 SC 2001.

    [11] It is submitted that the finding quoted at item [7] at page 20 of the impugned judgement is contrary to the findings at paragraph 141, 142[4] of AIR 1995 SC 2001 which alone is part of the decree.It is this decree which is sought to be executed through E.P No 1 of 2009 in O.S No 4 of 1979 of this Honorable Court,


    [12] The finding at paragraph 15 that the Supreme Court of India did not find that the churches are to be administered by 2002, Constitution, is absurd. AIR 1995 SC 2001 is dated 20TH of June,1995,

    [13] The impugned judgement has interpreted the judgement reported in AIR 1995 SC 2001 wrongly .It should have been found that relief [a] of the suit finally disposed off by AIR 1995 SC 2001 contain three parts ,VIZ;

    [i] Declare that the Malankara Church is Episcopal, [ii] Declare that the Malankara Church is not a union or federation of autonomous church
    units,[iii] declare that the Malankara Church is governed in its
    administration by the Constitution of the Malankara Church It is submitted that the second part of this declaratory relief was not granted at all by the judgement and decree of the Apex Court.This is clear from paragraph 141 which finding was incorporated in the decree by order dated 5.2.1997-AIR 1997 SC 1035.

    [14]It should have been found that AIR 1995 SC 2001 has not granted any declaration affecting parish churches. No declaration that the properties of the parish churches are vested in the Catholicos, Malankara Metropolitan, Diocesan Metropolitan- authorities of the Malankara Association under the 1934, Constitution.No declaration that the Church is Episcopal, if it means that it gives the Catholicos / Malankara Metropolitan / Diocesan Metropolitan any title to or any control over the properties and temporal affairs held by the parish churches.The said power is restricted to the Common properties of the Malankara Church only. This aspect of the Apex Court judgement is not considered and followed by the impugned judgement,

    [15] There is no declaration in AIR 1995 SC 2001that each church is a constituent unit of the Malankara Church.Title to and control of the properties of the parish churches is vested in its parishioners represented by the General Body/ Parish Assembly which is found to be the final authority.

    [16] The finding in AIR 1995 SC 2001,that the Malankara Church is Episcopal to the extent it is declared in the 1934, Constitution can only mean that the authorities of Malankara Association can exercise managerial activities over those parish churches that voluntarily associate themselves to it and continue as such. This does not give the said authorities any title to the said parish churches.

    [17] It is abundantly clear from the majority judgement in AIR 1995 SC
    2001,that the Malankara Association is a voluntary Association with Individual Parish Churches as its units-having voluntarily joined it and became members. There is no direction/injunction in the judgement/decree of the Apex Court that each parish church should continue as its members till eternity. Nothing prevents them from opting out of the Malankara Association by decisions of its parishioners as reflected in its parish assembly. These aspects are not referred to or considered by the impugned judgement,

    [18] Paragraph 4 of the Written Statement specifies the object of foundation of the plaint church viz; for conducting religious services by only those religious dignitaries who possess spiritual grace emanating from the Apostolic Throne of St Peter at Antioch through the Patriarch of Antioch And All The East or his authorized representatives.This is proved through Exhibits B-10, B-12 to B 22 by DW 3 who was the trustee of the plaint church. .The existence of these documents and its effect is not denied by the plaintiffs.The impugned judgement does not apply its mind to these aspects .

    [19] Exhibit B-1 ,Minutes of the Parish Assembly meeting dated 30.06 2002, is not denied by the plaintiffs/respondents. It should have been found that it has taken effect and the parishioners in general has accepted it. The question whether the plaint church has the fundamendal right under Article 19 [1] [c] of the Constitution of India as pleaded in the Written Statement is a substantial question of law relating to the interpretation of the Constitution of India. In such circumstances, Article 228 of the Constitution of India should have been followed by the court below.

    [20] 2009 [4] KLT 848= Ramlath Memorial Charitable Trust VS Peerukannu by His Lordship Mr Justice S.S.Satheesachandran, has no application to the facts of this case. In this case the suit is filed after obtaining sanction under Section 92 of C.P.C. It is admitted that the trust is a public religious trust having an independent legal status. The decision does not say that a suit with the main relief being Declaration and the other reliefs are consequential to the said relief can be maintained if the consequential reliefs taken independently will fall under Section 92[1][a] to [f]. At any rate the binding decisions of the Supreme Court of India are not considered in the said decision,VIZ Pragdasji VS Ishwarlalbhai AIR 1952 SC 143Bishwanath VS Sri Thakur Radha Ballabhji-AIR 1967 SC 1044, AND Harendra Nath Vs Kaliram Ds AIR 1972 SC 246. The law declared by the Apex Court is binding on the court below and should have been followed.

    [21] The judgement and orders of This Hon'ble Court in 1995 supp[4]: SCC286-AIR 1995 SC 2001,1996[10]SCC 470-AIR 1996 SC3121, 1997[8]SCC
    614- AIR 1997 SC 1035,and orders dated 28.11.2001[2002[1] KLT 125[SC] and 12.7.2002 in Civil Appeal No 8185 of 2001 does not amount to an injunction restraining the parish churches from dissociating from the Malankara Association. The judgment and orders of the Hon'ble Supreme Court does not take away the fundamental rights of the parish churches, guaranteed by the Constitution of India. Every Parish Church is a juristic person having all the rights of a citizen under Part III of the Indian Constitution. It may be seen that the Church is a ‘juristic person’ as held by the Supreme Court of India in Shriomani Gurudwara Prabandhak Committee, Amritsar Versus Shri Som Nath Dass & Ors. etc. —2000[4]SCC146. It is held as follows at paragraph 24;

    ‘An idol is a "Juristic Person" because it is adored after its consecration in a temple. The offerings are made to an idol. The followers recognise an idol to be symbol for God. Without the idol, the temple is only a building of mortar, cement and bricks which has no sacredness or sanctity for adoration. Once recognised as a "Juristic Person", the idol can hold property and gainfully enlarge its coffers to maintain itself and use it for the benefit of its followers. On the other hand in the case of mosque there can be no idol or any images of worship, yet the mosque itself is conferred with the same sacredness as temples with idol, based on faith and belief of its followers. Thus the case of a temple without idol may be only brick, mortar cement but not the mosque. Similar is the case with the Church. As we have said, each religion have different nuclei, as per their faith and belief for treating any entity as a unit’

    [22] The Church being a juristic person have the right to exercise the
    fundamental right to freedom of Association under Article 19[1][c] of the Constitution of India.At any rate the rights of the parish churches are the conglomeration of the rights of its parishioners which is reflected through the decisions of its Parish Assembly where the majority decision prevails.

    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.The rights guaranteed under the Constitution of India cannot be taken away or abridged by the Courts. Moreover, the Supreme Court of India cannot be said to have or understood to have curbed,curtailed or taken away such rights,

    [23] It is submitted that every Parish Church is part of the Syrian Orthodox Church established and consecrated to maintain the faith of the faithful members of the said sabha. It is subject to the Ecclesiastical Heriarchy accepting the Apostolic Succession from the Apostolic Throne Of St: Peter at Antioch through the Patriarch Of Antioch And All The East. Parishes are certainly congregations of the members of the Sabha------The Syrian Orthodox Sabha under the Supreme Spiritual Headship of the Patriarch of Antioch And All The East.By Malankara Church is meant the Malankara Church Community consisting of parish churches which were founded and dedicated as parish churches accepting the Apostolic succession from the Apostolic Throne Of St: Peter at Antioch through the Patriarch Of Antioch And All The East..A Parish Church, also have the very same rights as its parishioners who are members of the Syrian Orthodox Church.

    24] The Malankara Association was established in 1876 at Mulamthuruthy Synod by the then Patriarch Of Antioch as a accredited representative body of the then existing Parish Churches Of the Syrian Church in Malankara commonly referred to as Malankara Church. The Malankara Church is admittedly a division of the Syrian church under the supreme spiritual headship of the Patriarch of Antioch.The Malankara Association was an organization for the entire Syrian Christian community in Malankara.The said Syrian Christian Community was comprised in a total of 1064 churches in 1974 when the plaintiff’s group instituted the suit that culminated in the judgement of The Hon’ble Supreme Court of India reported in AIR 1995 SC 2001- 1995 SUPP: SCC 286.

    [25] The Said Syrian Christian Community Constituting more than 1000
    churches [ which is the Malankara Church] split into two groups after First Of January, 1971 when the then Catholicos claimed that the Malankara Church is totally independent[ autocephalous] and has divided off from the Syrian Church under The Patriarch Of Antioch And All The East.The then Catholicos instituted the suit, O.S No 4/1979 of this Honorable Court claiming interalia that each parish church is a constituent unit of the Malankara Church under him to be administered by the 1934, constitution framed by the Malankara Association in 1934.This defendant specifically contended therein that the Malankara Church is a part of the Syrian Church and that it is only a union/federation of the Parish Churches which in turn were established as Churches of the Syrian Christian Sabha under the Spiritual Headship of the Patriarch Of Antioch. The declaration asked for by the petitioner in the suit with respect to the parish churches were not granted but rather specifically stated to be rejected.

    [26].The defendants in the suit O S NO 4 OF 1979 Of High Court Of Kerala were not sued as representatives of any of the parish churches. The several Parish Churches filed applications to get themselves impleaded in that suit which were rejected accepting the stand of the plaintiff therein that they are only asking for a declaration of the supervisory and spiritual control over the ‘Church’.[ Please refer to Para 141 at page no 2070, left-hand column , of AIR 1995 SC 2001]. The plaintiffs therein and others under him claimed the said declaration on the basis that they alone were elected by the Malankara Association.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 and in them alone the title to the above indefeasibly vest.. A Parish Church cannot have rights separate from the majority of its parishioners

    [27] The judgement and decree of The Hon’ble Supreme Court of India in the suit instituted by the Catholicos of the Malankara Orthodox Church does not amount to an injunction restraining the defendants therein inclusive of these defendants/Appellants from going out of the Malankara Association. It also does not restrain any member of the Syrian Christian Community or its Parish Churches from opting out of the Malankara Association in exercise of the right under Article 19[1][c] of the Indian Constitution.The entire erstwhile Patriarch Group of the Syrian Christians in Malankara who alone constitute more than 800 parish churches opted out of the Malankara church and its Malankara Association by unanimous decisions taken by them in duly constituted parish assembly meetings in the said parish churches.By such decisions taken by the said Syrian Christians of Malankara, the parish churches constituted by them also opt out of the Malankara church and Malankara association. They have not left the Syrian Christian Sabha under the spiritual Headship of the Patriarch Of Antioch but on the other hand continue as its integral unit and function under its Episcopal authority subject to the Constitution of the Jacobite Syrian Christian Association.It is a case of more than 800 churches out of a total of about 1500 churches carving out a separate division within the Syrian Orthodox Sabha by name Jacobite Syrian Christian Church.The rest of the churches remain as Malankara orthodox church which is also a division of the Syrian Orthodox Sabha.

    [28] The hierarchy of authorities elected in accordance with the provisions of 1934, Constitution have no title to or control over the properties or temporal affairs of the parish churches.

    The Hon’ble Supreme Court of India held as follows at para 144, page Nos 2071 – 2072 of AIR 1995 SC 2001…… “ The situation resulting from the above summary of the findings is that the situation obtaining on January 1 , 1971 (ie the day after the election of Mathew Athanasius at the meeting of the Malankara Association held in December 31, 1970, in accordance with the 1934, Constitution), Shall be deemed to be the position even today in all respects. It is after January 1, 1971, that there was fresh spurt of quarrel between the two groups and the Patriarch and the Catholicos. Any attempt to bring peace, reconciliation and rapprochement between the two groups must take the said date as the starting point………………. It is with reference to the said date that the directions to be mentioned hereinafter are made with the hope that the said measures will succeed in bringing about reconciliation between the two warring groups and establish peace in Malankara Church which should be the desire of every well meaning member of that church……….”

    29] It is, therefore, clear that The Hon’ble Supreme Court was considering the situation in the Malankara Church as on 01/01/’71 and thereafter when the suits were filed. At that time there was no decision by any section to form another division in the Syrian Orthodox Sabha. It was a situation where the erstwhile patriarch group claimed to be the real Malankara church. The finding by The Hon’ble Supreme Court of India that the 1934, Constitution also governs the affairs of the parish churches and shall prevail etc are with respect to parish churches in the Malankara church which were associated to the Malankara Association as it stood on 01/01/’71. It is most humbly submitted that this does not amount to an injunction restraining all parish churches preventing them from opting out of the Malankara church and forming another division by name Jacobite Syrian Christian Church in the Syrian Orthodox Sabha under the spiritual Headship of the Patriarch of Antioch And All The East. Such a contention, if accepted, will be contrary to the fundamental rights guaranteed by The Indian Constitution under Articles 19 (1) ©, Article 26 read with Article 25, therein.

    30] 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 more than 800 parish churches form such a section]. The faithful members of the said parish churches continue as Syrian Christians in the Syrian church under the Patriarch of Antioch And All The East and it is incorrect for the plaintiffs / respondents to contend that they have joined another community and the impugned judgement is wrong to find that the members of the Jacobite Church should go out of the parish church.Ousting the majority of parishioners from the parish church is not contemplated by AIR 1995 SC 2001 and subsequent orders and judgements,

    31] The nature and character of the plaint church as a parish church in the Syrian Orthodox Church under the Spiritual Headship of His Holiness, The Patriarch of Antioch has not been altered. In fact the plaint church was established as a church in the Syrian Orthodox Sabha in Malankara. It always remain as a constituent of the Syrian Orthodox church and serve as parish church in the Syrian Orthodox Church for worship by members of the Syrian Christian Community in Malankara . The formation of Jacobite Syrian Christian Church as a Division in the Syrian Orthodox Sabha in India by Parish Churches, previously in the Malankara church which is yet another Division within the same Syrian Orthodox Sabha, will not in any manner alter their nature and character as parish churches in the Syrian Orthodox Sabha

    32] The parish churches who constituted themselves into the Jacobite Syrian Christian Church with its Association does not claim to be independent of the Syrian Orthodox Sabha but they remain as its division.They have separated from the other division of the Syrian Orthodox Sabha, the Malankara Syrian Orthodox Church.

    33] 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 Syrian Christian Community in Malankara. 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 Saba. The 1934, Constitution cannot be construed as a statute enacted by a legislative process nor can it have efficacy and legal consequences as that would flow from the Constitution or a statute.These aspects are not considered by the impugned judgement,

    34] AIR 1959 SC 31 and AIR 1995 SC 2001 were only dealing with a situation wherein a section continuing to remain as part of the Malankara Association refuse to participate in its meeting and hold their own separate meetings claiming to be the legally valid Malankara Association. AIR 1959 SC 31 found that the meeting held by one of the sections is the validly held meeting and the decisions taken therein are valid. There was no occasion therein to consider the effect of a substantial number of Syrian Christians constituting several parish churches deciding to opt out of the Malankara Association and Malankara church and creating another association and
    division within the same sabha viz Syrian Orthodox Sabha.

    [35] The judgement of The Hon’ble Supreme Court of India has
    categorically held that the Malankara church is a division of the Syrian Church under The Patriarch and has rejected the stand of the plaintiffs that the Malankara church is an “autocephalous” church. The said judgement has also held that title to and control over the properties of the parish churches are not vested in the catholicos / malankara metropolitan / Diocesan metropolitan of the Malankara church who are the authorities elected and appointed in accordance with the provisions of the 1934, Constitution of the Malanara church. It naturally follows that the parishioners of the parish churches have the title to and control over its properties. In exercise of the said right vested in them, the parishioners of more than 800 parish churches have decided to secede the said churches from Malankara church and to constitute themselves into another Division named Jacobite Syrian Christian Church under the Syrian Orthodox ChurchExhibit B-1 proves that the plaint church has decided to Associate to the Jacobite Syrian Christian Association.

    36] . There is no provision in the 1934, Constitution vesting the title to and control over the properties of the parish churches in the spiritual and temporal hierarchy contemplated by the provisions of the 1934, Constitution, nor can the provisions thereof vest or create title forever in the said heriarchy. It is, therefore, clear that The Hon’ble Supreme Court of India in its judgement, decree and directions has not prevented the parish churches from constituting themselves into another Division in The Syrian Orthodox Sabha under, The Patriarch and thus opt out of the Malankara church which is another division of the said Syrian Church. This option exercised
    by the parish churches including the plaint church on the basis of the
    decisions taken in their respective General Body Meetings of its
    parishioners in exercise of the fundamental rights under Article 19 (1) (c) and Article 26 of the Indian Constitution as well as their rights as title holders of the properties of the parish churches. This is not inconsistent with the declarations in the judgement of The Hon’ble Supreme Court of India in Civil Appeal 4958- 4960 of 1990. The impugned judgement does not apply its mind to these important legal and constitutional issues and is vitiated in toto.

    [37] The assumption at paragraph 18 that the plaint church is to be
    administered by the 1934, Constitution because the Catholicos Section have included it in the list attached to the plaint in O.S No 4/1979 instituted by them is incorrect. AIR 1995 SC 2001 has not held that the plaint church/First Appellant is to be administered by the 1934, Constitution.

    [38] The impugned judgement is wrong in assuming that the law of the land has been violated by the defendants. Basic law of the land is the
    Constitution of India and the decision of the Parish Assembly on 30.06.2002 to join the Jacobite Association is consistent with the fundamendal rights guaranteed under Article 19[1][c] of the Constitution of India. AIR 1995 SC 2001 cannot be interpreted in a manner that will run contrary to the provisions of the Constitution of India,

    [39] The finding that the so called “ auxiliary reliefs” to the main relief can be granted without granting the main relief is fundamendally erroneous and the impugned judgement is liable to be set aside,

    For these and other reasons to be submitted at the time of final hearing,this Honorable Court may be pleased to call for the records leading to the impugned judgement in O.S No 50 of 2003 of the First
    Additional District Court, Ernakulam, peruse them and be pleased to set aside the same and dismiss the suit with costs.

    Certified copy of the judgement in O S No 50 of 2003 is produced
    herewith.

    Jurisdictional value is below Rs 1,00,000/
    Valuation as in the Court below Rs 3500/
    Court Fee paid Rs 140/

    Dated this the 20th day of January, 2010
    ADVOCATE FOR THE APPELLANT


    BEFORE THE HONORABLE HIGH COURT OF KERALA,ERNAKULAM
    I. A. NO OF 2010
    IN
    R.F .A NO OF 2010
    BETWEEN

    St;John’s Jacobite Syrian Orthodox Church,
    Palakuzha & ors
    Petitioners

    VS

    Fr Shibu John & ors
    Respondents

    AFFIDAVIT

    I, Scariah, aged 61, son of Varghes, residing at Kallanayil House,
    Moongamkunnu, Palakuzha do hereby solemnly affirm and state as follows, viz;

    1] I am the third Appellant/third petitioner herein. I know the facts stated herein. I am swearing this affidavit on behalf of the other petitioners/Appellants also as instructed by them,

    2] The Petitioners have today filed the Regular First Appeal challenging judgement dated 16.1.2010 in O.S No 50 of 2003 of the First Additional District Court, Ernakulam. On the grounds taken in the Appeal Memorandum,the petitioners/Appellants are likely to succeed in the Appeal,

    3] By reason of an order passed by the Court below in 1987, in IA 196 of 1987 in O S No 166 of 1977 both the rival factions were conducting religious services in the First Appellant Church on alternate weeks. The petitioners/Appellants are in administration of the plaint church and its properties and this fact is admitted in the plaint itself,

    4] The earlier suit, O S No 166 of 1977, was dismissed by the Court
    below by judgement dated 28.2.2003. The plaintiffs therein belonging to the group of respondents herein, filed I A No 618 of 2003 in O.S No 166 of 1977 to direct the parties to maintain the status quo as on the date of the said judgement till the statutory appeal period is over after getting the certified copy of the judgement. An order was passed by the court below on 6.3.2003 directing maintainance of status quo as it existed on the date of judgement until the expiry of one week from the date of preparing the carbon copy of the judgement. True copy of the order dated 6.3.2003 in I A No 618 of 2003 in O S No 166 of 1977 of the court below is annexed as Annexure P-1.


    [5] Although the said order worked itself out, the petitioners herein
    did not prevent the respondents section from continuing to conduct religious services in the church. Accordingly it continued, although there was no interim order in OS No 50 of 2003. This is admitted position,


    [6] After the impugned judgement, petitioners filed IA 198/2010 , praying to stay the operation of the judgement until copy of judgement is got and for one week thereafter. It was rejected by order dated 19.1.2010 without following the above order earlier passed. A true copy of the said order in IA No 198 of 2010 in O S No 50 of 2003 is annexed as Annexure P-2,

    [7] The weekly turn for conduct of religious services by the respondent’s Group will come to an end on 23rd of January-Saturday-,evening and immediately, thereafter the turn of the petitioners group has to start. This practice has been going on in the plaint church from 1983 onwards peacefully.The administration is carried on by the present trustees who are successors in office of defendants 3 & 4/Appellants 3&4 herein.

    [8] It is submitted that it is only fair and just to allow the existing status quo in the plaint church/first Appellant Church as on 15.1.2010 to be continued until the final disposal of the above Appeal in the interest of justice. An application for this relief is filed herewith, which may be allowed in the interest of justice. Otherwise,the petitioners will be put to irreparable harm, loss and injury

    All the facts stated above bare true and correct to the
    best of my knowledge and belief.

    Dated this the 20th day of January,2010

    DEPONENT

    Solemnly affirmed and signed before me by the deponent who is
    personally known to me in my office at Ernakulam, on this the 20th day of January,2010

    ADVOCATE

    BEFORE THE HONORABLE HIGH COURT OF KERALA,ERNAKULAM
    I. A. NO OF 2010
    IN
    R.F .A NO OF 2010

    BETWEEN

    PETITIONERS/APPELLANTS/DEFENDANTS

    [1] ST;John’s Jacobite Syrian Orthodox Church,[Kappil Pally], Palakuzha Village, Muvattupuzha,

    [2] Fr Varghese Edumariyil, aged 60,Edumariyil House, Mekkadampu,
    Muvattupuzha,

    [3] Scariah, aged 61, son of Varghes, residing at Kallanayil House,
    Moongamkunnu, Palakuzha,

    [4] Abraham Avirah, Son of Avirah, aged 55, Avalumthadathil, Karimpana
    [PO], Palakuzha

    VS

    RESPONDENTS/RESPONDENTS/PLAINTIFFS

    [1] Fr Shibu John,S/o Kuriakose Paily,aged 36,claiming to be vicar,
    ST;John’s Orthodox Church, Palakuzha

    [2] John Thomas,son of Thomas, aged 74, Kusumakunnu, Kulirankal,
    Palakuzha,

    [3] T.T Paulose, son of Thomas, aged 51, Tholanikunnel, Palakuzha

    Application under Order 41 Rule 5[1] read with section 151 of C.P.C,1908

    For the reasons stated in the accompanying affidavit, this Honorable Court may be pleased to direct maintenance of status quo as on 15.1.2010 with respect to religious services and administration of the First Appellant Church/Plaint Church until the final disposal of the above Regular First Appeal in the interest of justice.

    Dated this the 20th day of January, 2010
    Advocate
    BEFORE THE HONORABLE HIGH COURT OF KERALA,ERNAKULAM

    R.F .A NO OF 2010
    BETWEEN
    St;John’s Jacobite Syrian Orthodox Church,
    Palakuzha & ors
    Petitioners

    VS

    Fr Shibu John & ors
    Respondents

    SYNOPSIS

    1] This Regular First Appeal is instituted, challenging the judgement dated 16.1.2010 in O S No 50 of 2003 which effectively excludes the majority of the parishioners from the plaint church. The impugned judgement, quite wrongly and illegally have found that the petitioner’s group should be kept out of the church,

    [2] The impugned judgement specifically holds at paragraph 8 that the first relief [a] is outside the scope of S.92 CPC. It should have been found that reliefs [b] to [f] are consequential to relief [a] and, therefore, are not liable to be granted in the absence of the declaratory relief prayed for as relief[a]. The impugned judgement, having not granted relief [a], ought not to have allowed the consequential reliefs [b] to [f]. This approach of the Court below is fundamentally erroneous and, therefore,liable to be interfered with by this Honorable Court.


    [3] It should have been found that the cause of action in the present suit is the claim by the first plaintiff to be the vicar. The earlier suit,O.S No 166 of 1977,was to establish the authority of the predecessor of the present first plaintiff and his successors-in-office as Vicars of the plaint church.

    In both the suits rights are claimed on the basis of 1934, Constitution. Since the previous suit-O.S No 166 of 1977 of the Court below- was dismissed as abated by Exhibit B -26 Judgement, this suit is barred under Order XXII Rule 9 of the Code of Civil Procedure, 1908.

    [4] It should have been found that defendants 1 and 2 in B-24 suit were the then trustees and defendants 3 and 4 in the present suit are their successors-in-office. The cause of action ,should have been found to be the bundle of facts necessary to be established to get the reliefs asked for in the suit and not merely what is stated by the plaintiffs in the paragraph allotted to describe the cause of action. The most essential fact for the same is the claim of the plaintiffs in the two suits about the applicability of 1934, Constitution. It should also have been found that the plaintiffs
    and defendants in the present suit are successors-in-office of the
    plaintiffs and defendants in O S No 166 of 1977-B 24 suit. At any rate both the parties in this suit claim under the parties in B 24 suit which was dismissed as abated.

    [5] It should have been found that the reliefs in the present suit are also barred under Order 2 Rule 2 of CPC,1908.The plaintiffs in O S No 166 of 1977-B 24-omitted to sue defendants 1 and 2 in that suit for removing them and for election of new trustees through the first plaintiff therein. The present suit for such a relief is,therefore, barred under Order 2 Rule 2 ,CPC,1908

    [6] It ought to have been found that the issue as to whether the plaint church represented by the majority of its parishioners can opt to associate itself with the Jacobite Syrian Christian Association in exercise of the fundamendal right under Article 19[1][c] of the Constitution of India involves interpretation of the provisions of the Constitution of India and it is a substantial question of law as to the interpretation of the Constitution -the determination of which is necessary for the disposal of the suit. It should, have been found that the court below has no jurisdiction to take a decision on the said issue being barred under Article 228 of the Constitution of India.Having found that it is necessary to decide the issue involving the interpretation of Article 19[1][c] of the Constitution, the court below should have referred the case to this Honorable Court-Ganga Pratap Singh VS Allahabad Bank- AIR 1958 SC 293. The findings entered on issue Nos 2 to 4 are vitiated for this reason alone,

    [7] The impugned judgement is fundamentally erroneous in relying upon the minority judgement rendered by Justice Sahai in AIR 1995 SC 2001 which does not reflect the operative decision of the Apex Court, thus vitiating the judgement as a whole. It should have been found that the Learned Judges of the Apex Court have considered the conclusions of Justice Sahai as a minority view . This is clear from the directions given to frame the decree in AIR 1997 SC 1035. Not a single conclusion contained in Justice Sahai’s judgement is part of the decree of the Supreme Court of India following the judgement reported in AIR 1995 SC 2001

    [8] The judgement and orders of This Hon'ble Court in 1995
    supp[4]: SCC286-AIR 1995 SC 2001,1996[10]SCC 470-AIR 1996 SC3121, 1997[8]SCC 614- AIR 1997 SC 1035,and orders dated 28.11.2001[2002[1] KLT 125[SC] and 12.7.2002 in Civil Appeal No 8185 of 2001 does not amount to an injunction restraining the parish churches from dissociating from the Malankara Association. The judgment and orders of the Hon'ble Supreme Court does not take away the fundamental rights of the parish churches, guaranteed by the Constitution of India. Every Parish Church is a juristic person having all the rights of a citizen under Part III of the Indian Constitution. .It may be seen that the Church is a ‘juristic person’ as held by the Supreme Court of India in Shriomani Gurudwara Prabandhak Committee, Amritsar Versus Shri Som Nath Dass & Ors. etc. —2000[4]SCC146. It is held as follows at paragraph 24;

    ‘An idol is a "Juristic Person" because it is adored after its consecration in a temple. The offerings are made to an idol. The followers recognise an idol to be symbol for God. Without the idol, the temple is only a building of mortar, cement and bricks which has no sacredness or sanctity for adoration. Once recognised as a "Juristic Person", the idol can hold property and gainfully enlarge its coffers to maintain itself and use it for the benefit of its followers. On the other hand in the case of mosque there can be no idol or any images of worship, yet the mosque itself is conferred with the same sacredness as temples with idol, based on faith and belief of its followers. Thus the case of a temple without idol may be only brick, mortar cement but not the mosque. Similar is the case with the Church. As we have said, each religion have different nuclei, as per their faith and belief for treating any entity as a unit’

    [9] The Church being a juristic person have the right to exercise the
    fundamental right to freedom of Association under Article 19[1][c] of the Constitution of India.At any rate the rights of the parish churches are the conglomeration of the rights of its parishioners which is reflected through the decisions of its Parish Assembly where the majority decision prevailsThe 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.The rights guaranteed under the Constitution of India cannot be taken away or abridged by the Courts. Moreover, the Supreme Court of India cannot be said to have or understood to have curbed,curtailed or taken away such rights,

    [10] It is abundantly clear from the majority judgement in AIR 1995 SC
    2001,that the Malankara Association is a voluntary Association with
    Individual Parish Churches as its units-having voluntarily joined it and became members. There is no direction/injunction in the judgement/decree of the Apex Court that each parish church should continue as its members till eternity. Nothing prevents them from opting out of the Malankara Association by decisions of its parishioners as reflected in its parish assembly. These aspects are not referred to or considered by the impugned judgement. At any rate, the court below has no jurisdiction to decide Constitutional issues
    arising in the suit, being specifically barred under Article 228 of the Constitution of India,

    [11] The finding that the so called “ auxiliary reliefs” to the main relief can be granted without granting the main relief is fundamendally erroneous and the impugned judgement is liable to be set aside.

    Dated this the 20th day of January,2010

    P J PHILIP
    ADVOCATE

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

    Posted
    ADVOCATE P J PHILIP,
    MEMBER ID-1837
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