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The Full Text of Appeal Memorandum of Kolencherry Church

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  • Chev. Adv. Philip John
    Dear moderators The Full Text of Appeal Memorandum by two parishioners of Kolencherry Church who prayed to hold a referendum among the Parishioners, is
    Message 1 of 1 , Sep 29, 2011
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      Dear moderators

      The Full Text of Appeal Memorandum by two parishioners of Kolencherry Church who prayed to hold a referendum among the Parishioners, is enclosed herewith.

      It is Regular First Appeal No 655 of 2011 and is posted before A Division Bench of Kerala High Court on 30.09.2011.

      Let us pray for an interim order to continue status quo with respect to conduct of religious services and burial in the Church and Cemetry.

      Regards,
      P J PHILIP, Advocate,
      Mmber ID #187
      Cochin/ZOONORO JACOBITE CHURCH.

      --------------------------------------------------------------------

      BEFORE THE HON’BLE HIGH COURT OF KERALA ATERNAKULAM

      R.F.A NO OF 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants 13 and 15
      Mathew Yohannan & anr
      Vs
      Respondents/Plaintiffs and Defendants 1 to12,14 and 16
      K.S.Varghese & ors

      SYNOPSIS AND LIST OF DATES

      The Appellants are aggrieved by the Judgment of the First Additional District Court, Ernakulam in O.S 43 of 2007 dated 16.8.2011 dismissing their Counter Claim. The said Suit related to the disputes between the plaintiffs and defendants 3,6 , 8 , 9,10 to 12 ,representing two factions of the Syrian Christian Community of the St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District of Kerala. The suit was instituted after obtaining sanction under Section 92 of the Code of Civil Procedure,1908. Paper publication under Order 1 Rule 8 of the Code of Civil Procedure,1908, was also taken out. In response to publication under Order 1 Rule 8 of the Code of Civil Procedure,1908, the Appellants applied and were impleaded as Additional defendants 13 and 15 in the Suit. The Appellants are representatives of the large majority of peace loving parishioners of the Plaint Church who are interested to see that the Church is kept opened and all religious services are conducted peacefully therein.

      The Suit,O.S No 43 of 2007 of the First Additional District Court, Ernakulam, was for a declaration that the St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District of Kerala, is to be administered by an Udampady [Agreement] dated 13.12.1088 [Malayalam Era]=1908 A.D or alternatively to frame a scheme for the administration of the said Church and its institutions.It was also prayed to conduct election of the Managing Committee of St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District of Kerala through a Receiver appointed by the Court after preparing a voters list of all parishioners irrespective of factionalism and to entrust management to those elected etc.

      The plaintiffs were not suing to vindicate their private rights but rather purported to vindicate the rights of a large number of parishioners of the plaint Church as their representatives. Being a suit under Section 92 and Order 1 Rule 8 of the Code of Civil Procedure,1908, all the parishioners having the same interest as the plaintiffs are deemed to be parties to the suit.

      The Appellants herein filed their Written Statement with a Counter Claim requesting to pass a preliminary decree as follows, viz;

      “ A] Cause a referendum to ascertain the allegiance of the parishioners of the plaint church on the aspect of their plaint church,

      B] Declaring that the plaint church and its assets are to be governed in accordance with the faith and will professed by the majority of the parishioners of the plaint schedule church,

      C] To pass a final decree declaring that the plaint church and its assets are to be administered in accordance with the decision of the majority of the parishioners,

      D] Issue a permanent injunction restraining the third defendant,his men or agents and the religious dignitaries those who are not accepting the Spiritual Supremacy of Patriarch of Antioch and All The East”

      The Defendants/Respondents 1, 3, and 9 filed Additional Written statement opposing the prayers in the Counter Claim. However, the Court below did not raise any issues based on the pleadings and reliefs asked for in the Counter Claim and opposed by defendants 3 and 9 of the Orthodox Church. This has resulted in the wrong approach by the Court below,

      During the pendency of the Suit, the First Additional District Court,Ernakulam passed orders in IA No 3984 of 2010 and IA No 3868 of 2007 on 2/12/2010 inter alia allowing the plaint Church to be kept opened for conduct of religious services by both the rival factions through their respective priests in weekly turns of two consecutive weeks for the Faction represented by respondents 3 and 9 and one week for the faction represented by the plaintiffs =Appellants in RFA No 589 of 2011[ referred to as Orthodox Faction and Jacobite Faction respectively].Burial of the dead was conducted by both factions through their respective priests in the cemetery of the plaint church. This was consistent with the state of affairs with respect to conduct of religious services in the plaint church and burial in the cemetry for the last more than forty years.

      The Suit, OS No 43 of 2007 was dismissed by Judgment dated 16.08.2011 by the First Additional District Court, Ernakulam.The Counter Claim was also dismissed holding inter alia that these Appellants do not accept the 1934,Constitution of the Malankara Orthodox Church and hence are not entitled to any reliefs. The same Court granted an interim stay of operation of the said judgment and directed status quo with respect to conduct of religious services by the two sections in turns for a period of 15 days from the date of the Judgment,
      The plaintiffs preferred their First Appeal, RFA No 589 of 2011 on 22.8.2011 before the expiry of the fifteen days . Stay of the Judgment as far as the plaintiffs are concerned was not granted.

      The reasoning and the basis for rejection of the Counter Claim is fundamentally erroneous and a wrong interpretation of the Judgment of the Apex Court reported in AIR 1995 SC 2001. The Judgment of the Supreme Court had categorically declared that Democracy is the basic tenet of the Malankara Church and this fact is accepted by the entire Syrian Christian Community which is divided into two factions now. The impugned Judgment is violative of the basic finding by the Hon’ble Supreme Court of India in AIR 1995 SC 2001 that democracy is the basic tenet of the Church.

      The stand of the Appellants is consistent with the basic declarations contained in the Judgment of the Supreme Court of India reported in AIR 1995 SC 2001=P.M.A. Metropolitan and others VS Moran Mar Marthoma and another, viz; [i] The Patriarch of Antioch is the Spiritual Head of the Syrian Church of which the Malankara Church is a part and he is spiritually superior to the Catholicos; [ii] The Patriarch of Antioch has the power of General Supervision over the Spiritual Government of the Malankara Church; [iii] Democracy is the basic tenet of the Malankara Church,

      The Counter Claim was dismissed without understanding the real scope and effect of the reliefs asked for therein. Hence this Regular First Appeal.

      LIST OF DATES
      1913 An Agreement [ called in Malayalam as Udampady] executed by 5 priests and 16 Trustees of the St Peter’s and St Paul’sJacobite Church, Kolencherry. Priest were conducting religious services on alternate turns in the plaint church till
      then-[Exhibit A1],

      1974 The disputes between two factions of the St Peter’s and St Paul’sJacobite Church, Kolencherry. Three priests conducting religious services on alternate weeks=one belonging to the patriarch faction and the other two belonging to the contesting respondent’s faction referred to as the Catholicos Faction,.

      1980- Suit instituted by a few members of the Plaint church. During the pendency of this Suit, an Advocate Receiver was appointed for administration of the plaint church. Religious services were being conducted by three priests=one belonging to the petitioner’s faction and two belonging the faction represented by respondents 3 and 9.

      27.2.1997 O S No 19 of 1980 dismissed for lack of sanction under Section 92 of the Code of Civil Procedure,1908. Receiver directed to hand over possession to the remaining members of the erstwhile managing committee members. Accordingly one set of keys came to be in the possession of the first plaintiff. The other set was given to a member of the rival faction, one Cheria Pathrose who died.[Exhibit A 2]
      1997 The metropolitan of the Malankara Orthodox Church in the Kandanad Diocese forced the first plaintiff and the then priest of the Patriarch Faction to give allegiance to him. They were threatened removal and transfer if it was not done.

      1998 Church closed by orders of the Executive First Class Magistrate, Muvattupuzha due to law and order problems,. During this period of closure both the rival factions put up separate prayer centres,

      2004-2005 The Revenue Divisional Officer, Muvattupuzha directed the Plaint Church to be kept open and services were conducted by priests of both factions on turns.

      2005- Respondents 10 and 11 preferred W.P.[C] No 20938 of 2005 before this Hon’ble Court against the order of the Revenue Divisional Officer, Muvattupuzha keeping the plaint church open.[Exhibit A4]

      9.12.2005 Keys were directed to be returned to FR M V Abraham of the faction represented by respondent 3 and 9.

      2006 W.A No 47 of 2006 disposed off by a Division Bench of this Hon’ble Court directing the Sub Divisional Magistrate, Muvattupuzha to keep the keys with him for fifteen days and thereafter to keep the keys in accordance with the directions of Civil Court in a suit to be filed within fifteen days by the Appellants therein.[Exhibit A5],

      2007- Suit filed by Appellants in RFA No 589 of 2011with sanction under
      Section 92 of the Code of Civil Procedure,1908, Numbered as O S No 43 of 2007 of the First Additional District Court,Ernakulam, for a declaration that the St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District , is to be administered by an Udampady [Agreement] dated 13.12.1088 [Malayalam Era]=1913 A.D or alternatively to frame a scheme for the administration of the said Church and its institutions.It was also prayed to conduct election of the Managing Committee of St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District of Kerala through a Receiver appointed by the Court after preparing a voters list of all parishioners irrespective of factionalism and to entrust management to those elected etc.
      14.3.2011 Paper publication in Malayala Manorama under Order 1 Rule 8 of the Code of Civil Procedure,1908

      IA No 1403 of 2011 by Appellants/defendants 13 and 15 with defendants 14 and 16 to get themselves impleaded in the Suit.

      16.6.2011 Written Statement by the Appellants herein with Counter Claim

      14.7.2011 Additional Written Statement by the Defendants 1,3 and 9 opposing the Counter Claim
      2.12.2010 First Additional District Court, Ernakulam passed orders in IA No 3984
      of 2010 and IA No 3868 of 2007 on 2/12/2010 inter alia allowing the plaint Church to be kept open for conduct of religious services by both the rival factions through their respective priests in weekly turns of two consecutive weeks for the Faction represented by respondents 3 and 9 and one week for the faction represented by the petitioners herein
      [ referred to as Orthodox Faction and Jacobite Faction respectively].
      Burial of the dead accompanied by all religious service was conducted
      by both factions through their respective priests in the cemetery of the
      plaint church. This was consistent with the state of affairs with respect
      to conduct of religious services in the plaint church and burial in the
      cemetery for the last more than forty years.
      16.8.2011 O S No 43 of 2007 of the First Additional District Court, Ernakulam
      dismissed. Couner Claim by the Appellants/Defendants 13 and 15 also
      rejected
      18.8.2011 First Additional District Court,Ernakulam, granted an interim directed
      status quo with respect to conduct of religious services by the two sections in turns for a period of 15 days from the date of the judgment, in IA No 4011 of 2011 file by the Plaintiffs

      22.8.2011 R F A No 589 of 2011 filed in this Hon’ble Court by the plaintiffs

      2.9.2011 Order in O.P[Civil] 2911 of 2011 extending interim order of status
      quo as on the date of dismissal of the Suit for one week more

      6.9.2011 A Division Bench of this Hon’ble Court passes orders in the Appeal
      rejecting the request to stay operation of the Judgment dismissing the suit,
      8.9.2011 to
      19.9.2011 Attempts made by the faction of the Orthodox Church represented by respondents 3 and 9 herein to forcibly take exclusive control of the plaint church and its properties by excluding the third priest belonging to the Patriarch Faction.It resulted in protests from the parishioners and religious dignitaries accepted by them who insisted on their right of conducting religious services in the plaint church on one out of three weeks and also in the nearby chapel at Kottoor.

      The Head of the two Churches participated in the protest. The Mediation Centre of this Hon’ble Court appointed two mediators but their attempts also failed.
      20.09.2011 This Hon’ble Court passes orders admitting the Appeal, RFA 589 OF 2011 and notice was issued to all respondents. The Appellants received notice of the said Appeal from this Hon’ble Court. It is now posted to 30.09.2011 for further consideration of the issue of granting interim relief,

      Dated this the 28th day of September, 2011
      COUNSEL FOR THE APPELLANT

      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      R.F.A No. of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Additional Defendants 13 and 15

      1. Mathew Yohannan, Son of Mathew Vallikathil, Aged ,
      Aikkaranad North Village, Mangattoor,
      Ernakulam District,

      2. K.M.George,Son of Mathai, aged , Kodiyattu,
      Mazhuvannoor Village, Ezhupram, South Mazhuvannoor,
      Ernakulam District,

      Vs

      Respondents/Plaintiffs and Defendants 1 to12,14 and 16

      1. K.S.Varghese, S/o.Scaria, aged 61, Kavanachottil House,
      Palackamattom Kara, Aikkaranadu South Village
      Kunnathunadu Taluk

      2. V.M.George, S/o.Mathai, aged 40, Vadankulangara House,
      Mangattoor Kara, Aikkaranadu North Village,
      Kunnathunadu Taluk

      3. C.K.Thampi, S/o.Kuriakose, aged 42,
      Chundathadathil House,
      Vadayampadi Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      4. St.Peter’s and St.Paul’s Syrian Orthodox Church, Kolencherry,represented by its Vicar Fr.Vargfhese Edumary, Edumary House,aged 58, S/o.Paily, Kolencherry Kara, Aikkaranadu South Village, Kunnathunadu Taluk.

      5. Rev. Fr.Varghese Edumary, aged 58, S/o.Paily, Vicar, St.Peter’s and St,Paul’s Syrian Orthodox Church, Kolencherry Kara, Aikkaranadu South Village, Kunnathunadu Taluk.

      6. Rev. Fr.Jacob Kurian, S/o. Kurian, aged 55, Priest,
      St.Peter’s and St.Paul’s Syrian Orthodox Church
      Kolencherry Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk.

      7. P.M.George, aged 72, S/o.late Sri.Mathulla, Eloor,
      Pannikuzhiyil House, Elamkulam Kara, Aikkaranadu,
      South Village, Kunnathunadu Taluk.


      8. K.A.Thampi, S/o.Abraham, aged 63,
      Kunnathukulathukattil House,
      Kinginimattom Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk




      9. T.V.Puravathu, S/o.Varkey, aged 85,
      Thamarachalil House,Elamkulam Kara,
      Aikkaranadu South Village, Kunnathunadu Taluk

      10. C.V.Paily, S/o.Varkey, aged 100, Kochiputhenpurayil,
      Karukappilly Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      11. P.P.Thomas, aged 68, Pookkolayil House,
      Kolencherry Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk


      12. A.V.Pathrose, S/o.Varkey, aged 75, Athikkuzhiyil House,
      Mangattoor Kara, Aikkaranadu North Village,
      Kunnathunadu Taluk

      13. Thomas.M. Alias, S/o.Alias aged 35, Mundayil House,
      Peringole Kara, Aikkaranadu North Village,
      Kolencherry, Kunnathunadu Taluk.

      14. Jogi George, aged 33, S/o.C.M.George,
      Cholattu House, Puthencruz Kara,
      Aikkaranadu North Village, Vadayampady.P.O
      Kunnathunadu Taluk

      15. Babu Paul, S/o.Late Sri.P.M.Paily Pilla, aged 52,
      Perumpillil House Elamkulam Kara,
      Aikkaranadu South Village, Kolencherry.P.O
      Kunnathunadu Taluk

      16. Sunil Mathew, S/o.Mathew, Njaruthottiyil,
      Elamkulam Kara, Kolencherry

      17. Paul.P.Kunnath, S/o. Paulose, Kunnath, Peringodu,
      Aikkaranadu North, Kolencheery.

      Address for service on respondents is as above or on their counsel as and when engaged.


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

      Address for service of notices etc. to the Appellants may be served on his counsel M/s. P.J.PHILIP and P.Gopalakrishnan, 55/2519,Chilavannoor Road, Kadavanthara[PO],, Ernakulam , Kochi-682020.

      Address for service of all notices etc. to the respondents is as shown above respectively. Notice is served on the Counsel for Caveator and Appellants in
      RFA No 589 of 2011.

      STATEMENT OF FACTS MOST RESPECTFULLY SHOWETH:

      1] That this Regular First Appeal is filed against the Judgment of the First Additional District Court, Ernakulam in O.S 43 of 2007 dated 16.8.2011 dismissing the Counter Claim of the Appellants. The Regular First Appeal 589 of 2011 by the plaintiffs is admitted and is pending in this Hon’ble Court.

      2] The Suit,O.S No 43 of 2007 of the First Additional District Court,Ernakulam, was for a declaration that the St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District , is to be administered by an Udampady [Agreement] dated 13.12.1088 [Malayalam Era]=1908 A.D or alternatively to frame a scheme for the administration of the said Church and its institutions.It was also prayed to conduct election of the Managing Committee of St Peter’s and St Paul’s Jacobite Syrian Orthodox Church, Kolencherry in Ernakulam District of Kerala through a Receiver appointed by the Court after preparing a voters list of all parishioners irrespective of factionalism and to entrust management to those elected etc.

      3] It was contended by the plaintiffs that administration by the authorities represented by the contesting respondents 3 and 9 is contrary to the object of foundation of the plaint Church as enumerated in the 1913, Agreement.[Exhibit A1]. The Church itself was established by the forefathers of the present parishioners to cater to the religious needs of the parishioners in accordance with their faith. It is their belief that spiritual satisfaction can be obtained only through the religious dignitaries,priests, vicars etc ordained and appointed by His Holiness the Patriarch of Antioch either directly or indirectly.

      4] The religious dignitaries of the Orthodox faction represented by the Respondents 3 and 9 are not accepted by the majority of the parishioners of the plaint church.They are not ordained and appointed consistent with the object of foundation of the plaint church. The Suit was instituted after obtaining sanction under Section 92 of the Code of Civil Procedure,1908. Steps as provided in Order 1 Rule 8 of the Code of Civil Procedure, 1908 was also taken out

      5] The religious services in the plaint church were being conducted by three priests on alternate weeks from 1959 onwards=one belonging to the Plaintiff’s Faction and the other two to the Orthodox faction. Burial among the dead of the parishioners was being regularly conducted by the respective priests . This practice of conduct of religious services continued till 1998 when the Church was closed due to law and order problems created by the orthodox church metropolitan attempting to put an end to the system of conduct of religious services by the three priests in turn,

      6] In 2004-2005 –The Revenue Divisional Officer, Muvattupuzha directed the Plaint Church to be kept open and services were conducted by priests of both factions on turns,on the basis of an understanding reached by the rival factions in the plaint church. Respondents 10 and 11 preferred W.P.[C] No 20938 of 2005 before this Hon’ble Court against the order of the Revenue Divisional Officer, Muvattupuzha keeping the plaint church open. On 9.12.2005 ,a Learned Single Judge directed that Keys be returned to FR M V Abraham of the faction represented by respondent 3 and 9.

      7] Writ Appeal 47 of 2006 was filed challenging the same, and it was disposed off directing the Sub Divisional Magistrate, Muvattupuzha to keep the keys with him for fifteen days and thereafter to keep the keys in accordance with the directions of Civil Court in a suit to be filed within fifteen days by the Appellants. Accordingly the Suit, O S No 43 of 2007 was filed by the plaintiffs after obtaining sanction under Section 92 of the Code of Civil Procedure,1908,

      8] I A No 4032 of 2007 was filed by the Appellants herein and they got themselves impleaded as Additional Defendants 13 and 15 in the suit. The Appellants herein filed their Written Statement with a Counter Claim requesting to pass a preliminary decree as follows, viz;

      “ A] Cause a referendum to ascertain the allegiance of the parishioners of the plaint church on the aspect of their plaint church,

      B] Declaring that the plaint church and its assets are to be governed in accordance with the faith and will professed by the majority of the parishioners of the plaint schedule church,

      C] To pass a final decree declaring that the plaint church and its assets are to be administered in accordance with the decision of the majority of the parishioners,

      D] Issue a permanent injunction restraining the third defendant, his men or agents and the religious dignitaries those who are not accepting the Spiritual Supremacy of Patriarch of Antioch and All The East”

      9] The Defendants/Respondents 1,3,and 9 filed Additional Written statement opposing the prayers in the Counter Claim. Defendants 4,6,7,8,10,11 and 12 were set Exparte. Additional defendants 14 and 16 did not file any Written Statement.

      10] The Court below did not raise any issues based on the reliefs asked for in the Counter Claim and the Written Statement opposing the same. The evidence in the case was allowed to be adduced only with respect to the issues raised based on the pleadings of the plaintiffs and defendants 3 and 9.

      11] It is submitted that the stand of the Appellants is consistent with the basic declarations contained in the Judgment of the Supreme Court of India reported in AIR 1995 SC 2001=P.M.A. Metropolitan and others VS Moran Mar Marthoma and another, viz; [i] The Patriarch of Antioch is the Spiritual Head of the Syrian Church of which the Malankara Church is a part and he is spiritually superior to the Catholicos; [ii] The Patriarch of Antioch has the power of General Supervision over the Spiritual Government of the Malankara Church; [iii] Democracy is the basic tenet of the Malankara Church,

      12] On 16.8.2011, O S No 43 of 2007 was dismissed by the of the First Additional District without properly understanding the scope and effect of the Judgment of the Apex Court in AIR 1995 SC 2001 with respect to the affairs of the Parish Churches.

      13] ]The Counter Claim was dismissed without understanding the real scope and effect of the reliefs asked for therein,

      Hence this Regular First Appeal is filed challenging the dismissal of the Counter Claim filed by the Appellants on the following among other:

      G R O U N D S

      A] The Judgment dated 16.8.2011 dismissing the Counter Claim by the Appellants is liable to be interfered with and set aside in the facts and circumstances of the case.

      B) The Suit is a representative suit and the Appellants were requesting to maintain the rights of the parishioners of the plaint church consistent with the Object of foundation of the plaint church,

      C) The Court below went wrong in not raising any issue based on the contentions and the reliefs asked for in the Counter Claim by the Appellants

      D] The impugned Judgment is violative of the mandatory procedure for deciding a Counter Claim as provided in Order 8 Rule 6 A[1] to [4],

      E] It ought to have been found that the stand of the Appellants and the reliefs asked for are consistent with the object of foundation and establishment of the plaint church.The object of foundation of the plaint church is to the effect that religious services therein ought to be conducted by those religious dignitaries who possess the Spiritual Grace through the Patriarch of Antioch And All The East either directly or indirectly,

      F] The Apex Court has categorically declared that the Patriarch of Antioch and All the East is the Supreme Spiritual Head of the Church and that He is spiritually superior to the Catholicos of the Malankara Church.It has been held that the Syrian Christians in Malankara believed in the efficacy of ‘Kaiveppu’ [ laying of hands by Patriarch on the Head] while consecrating the Metropolitan and considered it essential to a proper ordaining of the metropolitan and through him the Vicars And priests.

      G] It should have been found that the effect of the several declarations and findings in the Judgment of the Supreme Court of India contained at Paragraph 135[a] to 146 are in substance the following ,viz;

      “ [i] The Patriarch of Antioch is the Spiritual Head of the Syrian Church of which the Malankara Church is a part and he is spiritually superior to the Catholicos;

      [ii] The Patriarch of Antioch has the power of General Supervision over the Spiritual Government of the Malankara Church;

      [iii] Democracy is the basic tenet of the Malankara Church,

      [iv] Title to and control over the properties of the Parish Churches are not vested on the Catholicos, Malankara Metropolitan, Diocesan Metropolitan
      [ who are creatures of the 1934,Constitution of the Malankara Association of the Malankara Church],

      [v] Power of the Malankara Metropolitan or the Metropolitan in temporal affairs is only with respect to the Common Properties of the Malankara Church as such,

      H] It ought to have been found that the finding regarding the 1934,Constitution of the Malankara Association of the Malankara Church is subject to all other findings contained in the Judgment of the Apex Court =AIR 1995 SC 2001,+ especially the above enumerated findings,

      I] It should have been found that the authorities appointed through the provisions of the 1934,Constitution have no right to manage the affairs of the plaint church violating the basic object of foundation of the Church which is consistent with the findings and declarations by the Supreme Court of India in AIR 1995 SC 2001.

      J] After having found that the Parish members of the first defendant Church has the right to decide regarding the administration of the properties and the educational institutions under it, the Court below went wrong in finding that the contentions of the Appellant cannot be entertained on the premise that they are not recognizing the 1934,Constitution ,

      K] It should have been found that recognition of the 1934,Constitution and its authorities,who does not accept the Spiritual Headship of the Patriarch of Antioch, is not a condition precedent to consider the valid contentions raised by the Appellants in their Counter Claim,

      L] It ought to have been found that the 1934,Constitution is put into practice by the religious authorities and others selected through its provisions and they are bound to accept the Spiritual Headship of the Patriarch of Antioch with powers recognized by the Apex Court Judgment,viz; An authority superior to the Catholicos of the Malankara Church and having the power of overall general supervision over the Spiritual Government of the Church,

      M] The specific contention that the Priest Trustee of the Malankara Association of the Malankara Church instituted W.P.[C] No 29572 of 2008 before this Hon’ble Court challenging the Apostolic Visit to Kerala of the Patriarch of Antioch,the Spiritual Head,is not taken into consideration by the impugned Judgment.The said Writ Petition by the Orthodox Faction through the Malankara Association now controlled by them was abundant proof that they are not functioning consistent with the object of foundation of the plaint church and are violating the declarations of the Supreme Court of India in this regard,

      N] It should have been found that the issue involved is the mode of conduct of religious services in the plaint church and burial of the dead among the parishioners in the cemetery and the parishioners have the fundamendal right under Article 25 of the Constitution of India to chose their mode of conduct of religious services in accordance with their faith and consistent with the object of foundation of the plaint church. It is consistent with the Judgment reported in AIR 1995 SC 2001 also,

      O] It should have been found that the majority among the parishioners have the right to decide the mode of administration of the plaint church and its institutions since democracy is the basic tenet of the Malankara Church. The Court below having recognized this right of the parishioners at paragraph 17 of the impugned Judgment, should have allowed the reliefs asked for in the Counter Claim in toto.

      P] The finding that the contention of the Appellants in this regard can be entertained only if they accept and recognize the 1934,Constitution of the Malankara Association of the Malankara Church is incorrect and perverse and does not follow from Judgment reported in AIR 1995 SC 2001.It is submitted that there can be no pre condition to maintain a Civil Suit under Section 9 of the Code of Civil Procedure,1908.

      Q] The impugned Judgment will result in violation of the basic faith of the large majority of the parishioners of the plaint church and they will be prevented from meeting their spiritual needs consistent with the object of foundation of the said Church,

      R] The Counter Claim should have been allowed as prayed for and a preliminary decree as mentioned in paragraph 16 of the Written Statement of the Appellants/Defendants 13 and 15 should have been granted with costs.

      For these and other Grounds to be submitted at the time of final hearing, it is most humbly prayed that this Hon’ble Court be pleased to allow this Appeal and grant a decree as prayed for in the Counter-Claim of the Appellants/Defendants 13 and 15 in O S No 43 of 2007 of the First Additional District Court,Ernakulam,with costs throughout.

      VALUATION
      Valuation as per the Court below : Rs 50,01,000/
      Court Fee thereon under Section 52
      read with Section 47 of the Court Fees : Rs 50/paid
      Act as in the Court below

      Jurisdiction Valuation is above Rs two lakhs/

      Dated this the 28th day of September, 2011

      P J PHILIP,
      Advocate

      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      R.F.A No of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants
      13 and 15
      Mathew Yohannan & another

      Vs
      Respondents/Plaintiffs
      and Defendants 1 to12,14 and 16
      K.S.Varghese & others

      I N D E X

      Sl.No.
      Particulars
      Pages

      1.
      Synopsis and List of Dates
      1 to 8

      2
      Memorandum of Regular First Appeal
      9 to 20

      3.
      Certified copy of Judgment in O.S. No 43 of 2007 of the
      First Additional District Court, Ernakulam dated 16.8.2011

      21 to 43

      4
      Affidavit and Petition

      44 to 49

      5
      Time Petition
      50

      Dated this the 28th day of September, 2011

      COUNSEL FOR THE APPELLANTS

      Presented on 28-9-2011


      BEFORE THE HON’BLE HIGH COURT OF KERALAAT ERNAKULAM

      R.F.A No of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants
      13 and 15 : Mathew Yohannan & anr
      Vs
      Respondents/Plaintiffs
      and Defendants 1 to12,14
      and 16 : K.S.Varghese & ors

      MEMORANDUM OF REGULAR FIRST APPEAL FILED
      UNDER SECTION 96 R/W ORDER 41 RULE 1
      OF THE CODE OF CIVIL PROCEDURE
      ---------

      Jurisdiction Valuation is above Rs two lakhs/
      Valuation as per the Court below : Rs 50,01,000/
      Court Fee thereon under Section 52
      read with Section 47 of the Court Fees : Rs 50/paid
      Act as in the Court below

      M/S. P.J.PHILIP (P – 105)
      &
      P.GOPALAKRISHNAN (G – 313)
      COUNSEL FOR THE APPELLANTS

      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      I.A NO OF 2011
      IN
      R.F.A NO OF 2011

      Appellants : Mathew Yohannan & anr
      Vs
      Respondents/Plaintiffs : K.S.Varghese & ors

      AFFIDAVIT

      I, Mathew Yohannan, Son of Mathew Vallikathil, Aged Aikkaranad North Village, Mangattoor, Ernakulam District, do hereby
      solemnly affirm and state as follows:

      1] I am the first Appellant and I know the facts stated herein. I am swearing this affidavit on behalf of the second Appellant also as instructed by him,

      2] During the pendency of the Suit, the First Additional District Court,Ernakulam passed orders in IA No 3984 of 2010 and IA No 3868 of 2007 on 2/12/2010 inter alia allowing the plaint Church to be kept opened for conduct of religious services by both the rival factions through their respective priests in weekly turns of two consecutive weeks for the Faction represented by respondents 3 and 9 and one week for the faction represented by the plaintiffs =Appellants in RFA No 589 of 2011[ referred to as Orthodox Faction and Jacobite Faction respectively].Burial of the dead was conducted by both factions through their respective priests in the cemetery of the plaint church.This was consistent with the state of affairs with respect to conduct of religious services in the plaint church and burial in the cemetry for the last more than forty years.


      3] That the Church remained closed from 1998 till 2010 and the order in the IAs by the trial Court was only recognition and continuation of the prevailing situation as on 1998 when the Church was closed,
      4]That, the First Appeal is a continuation of the Original Suit and the state of affairs regarding conduct of religious services in the Church and conduct of burial in the Cemetry that was prevalent for more than forty year should be allowed to continue. That in the absence of a status quo order,the majority of the parishioners of the Plaint Church will be prevented from meeting their religious needs including conduct of burial in the Cemetry consistent with their basic faith through their priest which was undisputably going on for more than forty years
      5] That if the existing state of affairs as on the dismissal of the suit and counter claim with regard to conduct of religious services and burial of the dead in the cemetery of the plaint Church viz;St Peter’s and St Paul’s Jacobite Church, Kolencherry is not allowed to continue,it will oust the parishioners consisting of more than 1600 families with of more than 10,000 faithful members from the Church and render the First Appeal which is a continuation of the Original Suit redundant and infructuous,
      6] That the faction represented by the contesting respondents 3 and 9 tried to oust the Appellants, the parishioners represented by them from conducting religious services in the plaint church and its chapel creating an unfortunate situation in Kolencherry.Their vowed object is to take exclusive control of the plaint church and its properties even before the Appeal is finally heard on merits,


      7] In Several Similar First Appeals relating to right to conduct religious services and administration of parish churches, this Hon’ble High Court has granted status quo as on the date of Judgment of trial Court to continue till the disposal of the Appeal. Even in those cases where Suits were dismissed for lack of sanction under Section 92 of the Code of Civil Procedure,1908,this Hon’ble Court have granted the prevailing state of affairs with respect to conduct of religious services and burial to continue.

      It is most respectively submitted that it is only fair and just to allow the state affairs with regard to conduct of religious services in the plaint church, its Kottoor Chapel,burial in the cemetery with all connected religious services to be continued in exactly the same manner as it was prevailing on the date of dismissal of the suit and counter claim,ie 16.8.2011, in the interest of justice.
      The accompanying Application for this relief may be allowed;otherwise the large majority of the parishioners will be put to irreparable harm, loss and injury.
      All the facts stated above are true and correct.

      Dated this the28th day of September,2011

      Deponent

      Solemnly affirmed and signed before me by the deponent who is personally known to me in my office at Ernakulam on this the 28th day of September,2011.

      P J PHILIP, ADVOCATE

      BEFORE THE HON’BLE HIGH COURT OF KERALA
      AT ERNAKULAM
      I.A No. OF 2011
      IN
      R.F.A No. OF 2011

      Petitioners/Appellants


      1. Mathew Yohannan, Son of Mathew Vallikathil, Aged ,
      Aikkaranad North Village, Mangattoor,
      Ernakulam District,

      2. K.M.George,Son of Mathai, aged , Kodiyattu,
      Mazhuvannoor Village, Ezhupram, South Mazhuvannoor,
      Ernakulam District,

      Vs

      Respondents/Respondents

      1. K.S.Varghese, S/o.Scaria, aged 61, Kavanachottil House,
      Palackamattom Kara, Aikkaranadu South Village
      Kunnathunadu Taluk

      2. V.M.George, S/o.Mathai, aged 40, Vadankulangara House,
      Mangattoor Kara, Aikkaranadu North Village,
      Kunnathunadu Taluk

      3. C.K.Thampi, S/o.Kuriakose, aged 42,
      Chundathadathil House,
      Vadayampadi Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      4. St.Peter’s and St.Paul’s Syrian Orthodox Church,
      Kolencherry,represented by its Vicar Fr.Vargfhese Edumary,
      Edumary House,aged 58, S/o.Paily, Kolencherry Kara,
      Aikkaranadu South Village, Kunnathunadu Taluk.

      5. Rev. Fr.Varghese Edumary, aged 58, S/o.Paily,
      Vicar, St.Peter’s and St,Paul’s Syrian Orthodox Church,
      Kolencherry Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk.

      6. Rev. Fr.Jacob Kurian, S/o. Kurian, aged 55, Priest,
      St.Peter’s and St.Paul’s Syrian Orthodox Church
      Kolencherry Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk.

      7. P.M.George, aged 72, S/o.late Sri.Mathulla, Eloor,
      Pannikuzhiyil House, Elamkulam Kara, Aikkaranadu,
      South Village, Kunnathunadu Taluk.

      8. K.A.Thampi, S/o.Abraham, aged 63,
      Kunnathukulathukattil House,
      Kinginimattom Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      9. T.V.Puravathu, S/o.Varkey, aged 85,
      Thamarachalil House,Elamkulam Kara,
      Aikkaranadu South Village, Kunnathunadu Taluk

      10. C.V.Paily, S/o.Varkey, aged 100, Kochiputhenpurayil,
      Karukappilly Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      11. P.P.Thomas, aged 68, Pookkolayil House,
      Kolencherry Kara, Aikkaranadu South Village,
      Kunnathunadu Taluk

      12. A.V.Pathrose, S/o.Varkey, aged 75, Athikkuzhiyil House,
      Mangattoor Kara, Aikkaranadu North Village,
      Kunnathunadu Taluk

      13. Thomas.M. Alias, S/o.Alias aged 35, Mundayil House,
      Peringole Kara, Aikkaranadu North Village,
      Kolencherry, Kunnathunadu Taluk.

      14. Jogi George, aged 33, S/o.C.M.George,
      Cholattu House, Puthencruz Kara,
      Aikkaranadu North Village, Vadayampady.P.O
      Kunnathunadu Taluk

      15. Babu Paul, S/o.Late Sri.P.M.Paily Pilla, aged 52,
      Perumpillil House Elamkulam Kara,
      Aikkaranadu South Village, Kolencherry.P.O
      Kunnathunadu Taluk

      16. Sunil Mathew, S/o.Mathew, Njaruthottiyil,
      Elamkulam Kara, Kolencherry

      17. Paul.P.Kunnath, S/o. Paulose, Kunnath, Peringodu,
      Aikkaranadu North, Kolencheery.


      APPLICATION UNDER SECTION 151 AND ORDER 41 RULE OF THE CODE OF CIVIL PROCEDURE,1908

      For the reasons stated in the accompanying affidavit and the memorandum of Appeal,this Hon’ble Court may be pleased to direct maintenance of the state of affairs as it existed on 16.8.2011 in the matter of conduct of religious services in the plaint church and its Kottoor Chapel in turns and also burial of the dead in the cemetery with connected religious services to be continued until the final disposal of the Appeal in the interest of justice.
      Dated this the 28th day of September 2011

      COUNSEL FOR PETITIONERS


      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      R.F.A No of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants
      13 and 15 Mathew Yohannan & another

      Vs
      Respondents/Plaintiffs
      and Defendants 1 to12,14 and 16 K.S.Varghese & others

      I N D E X


      Sl.No.
      Particulars
      Pages

      1.
      True copy of Plaint O.S. No. 43/2007 filed by K.S. Varghese
      and others before the District Court, Ernakulam
      dated 9.7.2007
      1 to 13

      2
      True copy of Written Statement filed by Additional
      Defendants 13 & 15 in O.S. No. 43/2007 dated 16.6.2011
      14 to 21

      3.
      True copy of Additional Written Statement filed by
      Defendants 1, 3 and 9 in O.S. No. 43/2007 dated 14.7.2011

      22 to 25

      4.
      True copy of Additional Written Statement filed by
      Defendants 1, 3 and 9 in O.S. No. 43/2007
      dated 17.1.2011

      26 to 40

      5.
      True copy of Written Statement filed by
      Defendants 1, 2 and 5 in O.S. No. 43/2007 dated 15.6.2011

      41 to 46

      Dated this the 28th day of September, 2011
      COUNSEL FOR THE APPELLANTS

      Presented on 28-9-2011


      BEFORE THE HON’BLE HIGH COURT OF KERALAAT ERNAKULAM

      R.F.A No of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants
      13 and 15 : Mathew Yohannan & anr
      Vs
      Respondents/Plaintiffs
      and Defendants 1 to12,14
      and 16 : K.S.Varghese & ors

      MEMO SUBMITTED ADVOCATE P.J. PHILIP
      COUNSEL FOR THE APPELLANTS
      ---------

      M/S. P.J.PHILIP (P – 105)
      &
      P.GOPALAKRISHNAN (G – 313)
      COUNSEL FOR THE APPELLANTS

      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      R.F.A No of 2011

      [Against the Judgment dated 16.08.2011 in O.S. No. 43/2007 passed by the First Additional District Court, Ernakulam dismissing the Counter Claim of the Appellants]

      Appellants/Defendants
      13 and 15 Mathew Yohannan & another
      Vs
      Respondents/Plaintiffs
      and Defendants 1 to12,14 and 16 K.S.Varghese & others

      MEMO FILED BY ADVOCATE P.J. PHILIP, COUNSEL FOR THE APPELLANTS

      It is submitted that the following lower Court documents viz. Plaint, Written Statement, Counter Claim and Additional Written Statement, in O.S. No. 43/2007 on the file of the 1st Additional District Court, Ernakulam are produced herewith.

      Dated this the 28th day of September 2001.

      COUNSEL FOR THE APPELLANTS.

      BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

      I.A NO OF 2011
      IN
      R.F.A NO OF 2011

      Petitioners/Appellants : Mathew Yohannan & anr

      Vs
      Respondents/Respondents : K.S.Varghese & ors

      VERIFIED PETITION FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE

      Petitioner herein is the Appellant in the above R.F.A.. The appellant could not produce the certified copy of the Decree in O.S. No. 43/2007 dated 16.8.2011 passed by the Additional District Court Ernakulam along the above R.F.A. The two weeks’ time is necessary for the production of the certified copy of the Decree in O.S. No. 43/2007 dated 16.8.2011 passed by the Additional District Court Ernakulam.

      Hence it is humbly prayed that this Honourable Court may be pleased to grant the petitioner two weeks time to produce the certified copy of the Decree in O.S. No. 43/2007 dated 16.8.2011 passed by the Additional District Court Ernakulam along the above R.F.A.

      Dated this the 28th day of September 2011.

      COUNSEL FOR THE PETITIONE

      All the facts stated above are true and correct.

      P.J. PHILIP
      ADVOCATE
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