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Full text of recent HC judgement on mediation

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  • Gleeson Baby
    Thottathil B Radhakrishnan J & P. Bhavadasan J R F A No 310 of 1010 Dated this the 23rd day of November 2010 ORDER Thattathil B Radhakrishnan J 1. The matter
    Message 1 of 1 , Dec 1, 2010
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      Thottathil B Radhakrishnan J
      P. Bhavadasan J

      R F A No 310 of 1010

      Dated this the 23rd day of November 2010


      Thattathil B Radhakrishnan J

      1. The matter before us is a first appeal arising from a suit filed in relation to a church. Evidence was adduced. Thereafter, an application was filed by one set of defendants seeking that the trial court may hear the parties on a preliminary issue as to whether the suit is maintainable in view of section 92 of the code of civil procedure. The trial court allowed that application and heard arguments on the preliminary issue and held that the suit is not maintainable. The plaintiffs are before us in appeal.

      2. We have heard the learned counsel appearing for the plaintiffs and the learned senior counsel appearing for the two set of defendants. Fair amount of submissions have been made on the question touching the maintainability of the suit on the face of section 92 and other relevant matters.

      3. During hearing, it occurred to us that the litigation in hand is akin to different other litigations touching the Syrian churches in the state of Kerala. We notice that the laity of the Syrian churches, as history would show, with the passage of time, got unfortunately classified into two factions which were referred to in the different judgments of different courts, including the Apex court and also in pleadings as the Patriarch faction or Catholic faction. By now, Patriarch faction is called the Jacobite Church and the Catholic faction is called the Orthodox Church.

      4. The supremacy of the Christ and Cross for the Christians is never a disputed issue either among the clergy or the laity of the Syrian churches.

      5. The Patriarch of Antioch was and is, even by the Apex court in P M A Metropolitan, AIR 1995 SC 2001, the spiritual head of the Syrian churches. The Catholicos of the east was held to hold temporal powers and also the spiritual powers in the matter of administration and guidance for the church through the Malankara metropolitan. There are different parish churches under the Malankara metropolitan and the various churches come under the control of the different diocese and metropolitans thereof. Each church has its laity, the parishioners themselves coming at democratic decisions subject of course to the supervisory or other regulatory control by the respective diocesan metropolitan and the Malankara metropolitan and the Episcopal synod. This is how the scheme of the Syrian churches was understood and was being run.

      6. In spite of different adjudicatory procedures and decisions right from 1890 down to the afore-referred P M A Metropolitan, AIR 1997 SC 2001, later AIR 1996 SC 3121, AIR 1997 SC 1034 and an order dated 28.11.2001 of the Apex court, disputes still linger, much against the desire repeatedly expressed in various judgments that the parties will come to an amicable solution and give a quietus to the litigation.

      7. The learned counsel appearing for the parties point out that there may be around 70 suits pending now before the 1 additional district court which is stated to be a special court for Church cases to which cases were transferred in terms of a Government Order or are being transferred in exercise of power under Section 24 of the Code of Civil Procedure. There may be still around 70 cases pending in the High Court. There may be still around 70 cases spread out in different other courts even within the districts of Ernakulam, Thrissur and Idukki. It is also likely that there may be some litigations in certain other courts in the state of Kerala. But the fundamental basis of all these litigations is the so called difference of opinion between the Jacobite church and the orthodox church. It is pointed out by the learned counsel that now it has come to be that the two factions have disputes fundamentally referable to the question whether the 1995 judgment of the apex court have been given effect to and is being honoured, including the question of recognition of the Patriarch of Antioch as the spiritual head. While these submissions are made, we are also told that the use of the words Jacobite Church� and Orthodox Church� by the two factions would also not be in terms of the contents of the 1934 constitution.

      8. In the aforesaid backdrop, we suggested to the learned counsel for the parties that if there can be a negotiated settlement between the two factions relating to various disputes either by way of mediation or conciliation, as the case may be, it would be appropriate for the community in the furtherance of their spiritual and temporal goals as religious denomination. It appears that this suggestion by the court is well accepted by the learned counsel appearing in the case because cordial existence is the foundation of any community. A negotiated settlement of these litigations would also exclude the necessity for continued judicial pronouncements on matters affecting the religious denomination. Therefore, the learned counsel could put it to their parties and state whether two groups would take recourse to Alternate Dispute Redressal Mechanism to have all litigations between the two factions settled, even if it were to amicably account and part, if it becomes impossible to exist in unison.

      9. This order does not contain any suggestion as to how or what could be the probable solutions. It is for the parties to find out for themselves with the aid and advise of able mediators or conciliators, as could be suggested. Having regard to the nature of the disputes, the learned counsel for the parties suggest that they would make submissions in a couple of weeks regarding the possibility of taking recourse to ADR mechanism and also, in that event, suggest appropriate individual or panel as would be acceptable to either side for mediation or conciliation, as the case may be. We also clarify that it is for the parties to decide whether they are amenable to consider the suggestion of the court to have alternate method of resolving the core disputes in the community.

      Post on 14.12.2010
      Hand over to both sides.
      Thottathil B Radhakrishnan. J
      P. Bhavadasan. J

      Posted by
      Gleeson Baby
      St George Jacobite Syrian Church, Arakunnam
      # 0891
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