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2001 Supreme(Ker) 503
Judges : S.SANKARASUBBAN
Catholic Laymen s Association and Others - Appellant
Versus
The Synod of Bishops of the Syro Malabar Major Archiepiscopal Church and Others - Respondent
Case No : C.R.P. No482 of 2000
Decided On : 10/29/2001
Advocates Appeared :
For the Petitioner: Sunil C.G. Advocate. For the Respondent: R1 & R2-M/s K.M. Joseph, John John Vettikad & A.G. George Advocates. R3 Tom .K. Thomas Advocate R4 M/s I. Sheela Devi & J.Joseph Advocates.
Headnote:
Code of Civil Procedure – Sections 92, 20, 115 – Constitution of India – Article 227 – Prohibitory Injunction – Declaration of Society Rules – Plaintiffs in O.S. on the file of Addl. Sub Judge, Kozhikode are the revision petitioners. –1st revision petitioner, an unregistered society, which got registered subsequently, as an organisation of Christ's faithful belonging to and attending the numerous and several churches under the Syro Malabar Church. – The other revision petitioners were the plaintiffs in the suit who are interested in the subject matter of the suit which is a public trust. – The petitioners filed O.S. before the Sub Court, Kozhikode seeking several reliefs, inter alia, a declaration that the draft rules, Palliyogam Procedural Rules, promulgated by the 1st respondent and attempted to be implemented by the 2nd respondent and similar other Bishops of the church are ultra vires the Gospel, the Holy Bible, Catholic Church ideals and traditions and therefore unlawful and unenforceable. – The petitioners also sought a prohibitory injunction restraining the respondents and similarly placed other persons from implementing the impugned rules and for settling scheme for widespread discussion of the rules for decision and acceptance. – Since the subject matter of the suit being a public trust, the suit was filed under S. 92 of the Code of Civil Procedure. – The plaintiffs filed I.A. seeking leave under S. 92 of Code of Civil Procedure – Held, No fault on the part of the petitioners. – fault was on the part of the office of the court in numbering the suit – Court is of the view that a person should not suffer because of the mistake committed by the court. – Respondents also filed a petition to revoke the leave – In the above view of the fact, the lower court was not correct in holding that the suit was not filed properly. – Next question to be considered is since the suit was dismissed whether this Court should interfere under S. 115 of the Code of Civil Procedure. – learned counsel for the petitioners submitted that it is because of the finding on issues 1 and 2 that is suit was dismissed. – As a matter of fact, the findings on issues 1 and 2 are liable to be challenged in revision. – It is as a result of the consequence of the order passed on issues 1 and 2 that the suit was dismissed. – Further, it was submitted that under Art. 227 of the Constitution of India this Court has ample power to put the court below within their jurisdiction. – It is true that normally this Court does not interfere, since alternative remedies are available. – That does not mean that this Court should not exercise the power when the order of the court below is palpably, illegal and causes great hardship to the party. – When the court found that it had no jurisdiction, it ought to have returned the plaint to be presented to the proper court. – Party would have accepted the finding and presented the plaint in some other court or it would have filed an appeal against the order. – Order passed by the court below on issue No. 1 is causing great prejudice to the petitioners and it had to suffer for no fault of its. – Civil Revision Petition Allowed
ORDER
S.Sankarasubban, J.
Plaintiffs in O.S. No.184/98 on the file of the Third Addl. Sub Judge, Kozhikode are the revision petitioners. The 1st revision petitioner, an unregistered society, which got registered subsequently, as an organization of Christ's faithful belonging to and attending the numerous and several churches under the Syro Malabar Church. The other revision petitioners were the plaintiffs in the suit who are interested in the subject matter of the suit which is a public trust. The petitioners filed O.S. No.184/98 before the Sub Court, Kozhikode seeking several reliefs, inter alia, a declaration that the draft rules, Palliyogam Procedural Rules, promulgated by the 1st respondent and attempted to be implemented by the 2nd respondent and similar other Bishops of the church are ultra vires the Gospel, the Holy Bible, Catholic Church ideals and traditions and therefore unlawful and unenforceable. The petitioners also sought a prohibitory injunction restraining the respondents and similarly placed other persons from implementing the impugned rules dated 16-1-1998 and for settling scheme for widespread discussion of the rules for decision and acceptance. Since the subject matter of the suit being a public trust, the suit was filed under section 92 of the Code of Civil Procedure. The plaintiffs filed I.A. No. 3307/98 seeking leave under section 92 of the Code of Civil Procedure. The said petition was allowed on 2-7-1998.
2. The defendants filed separate written statement contending, inter alia, that the suit is not maintainable and that the head quarters of the Syro Malabar Church is situated at St.Thomas Mount in Ernakulam District from whom the impugned Rules and Regulations were passed by the Synod of Bishops and decreed by the 1st respondent/1st defendant who is the head of the Church as appointed by His Holiness the Pope and that the plaintiffs ought to have filed the suit before the Ernakulam Sub Court and the Sub Court, Kozhikode has no jurisdiction to try the suit.
3. Application for temporary injunction filed by the plaintiffs was dismissed and against that C.M.A. No. 111/99 was filed before the District Court, Kozhikode. The Sub Court framed 13 issues. The court fee was remitted. Issue Nos. 2 and 3 were heard as preliminary issues. First issue as framed is whether the suit is maintainable. Second issue was whether the court has jurisdiction to try the suit, since the first defendant with his head quarters at Mount St. Thomas at Kakkanad in Ernakulam had passed the decree from there enforcing the Palliyogam Procedural Rules. The learned Sub Judge considered the second issue first and find that the court has no jurisdiction to adjudicate the suit and the suit is only to be returned to the plaintiffs for presentation before proper court. Thereafter the court further proceeded to decide the first issue regarding maintainability and found that the suit is not maintainable and dismissed the suit. It is against the above judgment the civil revision petition is filed.
4. Regarding the question of jurisdiction the court below relied on section 20 of the Code of Civil Procedure and held that since there was more than one defendant each of the defendants should be residing within the jurisdiction of the court where the suit is instituted unless the cause of action arises within the jurisdiction of the court except in the case referred to in clause (b) of section 20.There neither leave nor consent of the defendants as referred to in section 20(b). Hence the court has no jurisdiction to try the suit and the suit is only to be returned to the plaintiffs for presentation before proper court. Then the court went to decide on issue No.1. Regarding issue No.1 what the court stated is that the plaintiffs sought leave under section 92 of the Code of Civil Procedure by filing I.A. No.3307/98. The suit was registered and numbered as O.S. No.184/98 before granting any leave as sought for in I.A. No. 3307/98. I.A. No.3307/98
