IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
ST.PETER'S AND ST.PAULS'S ORTHODOX SYRIAN CHURCH - Appellant
Versus
CHERIA @ CHERIAN –Respondent
FAO.No. 252 of 2015 ()
Decided On : 1-02-2016
Code of Criminal Procedure, 1973 - Order XXXIX Rule 1 - Prima facie - Temporary injunction - Jurisdictional factors - Irreparable injury - Held, If a party does not produce a document which he has undertaken to produce or which he was directed to produce, the court can certainly draw adverse inference against him in the matter of deciding the jurisdictional factors namely prima facie case, balance of convenience and irreparable injury - The impugned order is unsustainable and liable to be set aside.
The order in an application for temporary injunction is under challenge in this appeal.
The defendants in the suit are the appellants.
2. Respondents 1 to 3 instituted the suit alleging that they are parishioners of the first defendant church; that their names are included in the parish register as also in the parish assembly register of the first defendant church maintained in the year 1973 and that the second defendant Vicar of the first defendant church is attempting to exclude the plaintiffs and other eligible parishioners from the parish registers of the first defendant church. It was also alleged by the plaintiffs that there exists a factional dispute among the parishioners of the first defendant church and the second defendant is attempting to exclude the eligible parishioners including the plaintiffs from the parish registers of the first defendant church at the instance of the leaders of one faction. The plaintiffs, therefore, claimed a decree of permanent prohibitory injunction restraining the second defendant from excluding the plaintiffs and other eligible parishioners from the parish registers of the first defendant church. The plaintiffs also sought a decree of mandatory injunction directing the second defendant to update/prepare parish registers of first defendant church in tune with the registers maintained in the year 1973.
3. Along with the suit, the plaintiffs filed I.A.No.1365 of 2014 seeking an order of temporary injunction restraining the second defendant from excluding the plaintiffs and other eligible parishioners from the parish registers of the first defendant church till the disposal of the suit. The defendants filed objection to I.A.No.1365 of 2014 contending, among others, that the suit is one which falls within the ambit of Section 92 of the Code of Civil Procedure and that in so far as the plaintiffs have not obtained leave of the court for instituting the suit as provided for in the said Section, the same is not maintainable. On merits, the defendants contended that the plaintiffs have disassociated with the Malankara Orthodox Syrian Church and joined in a new church called Yacobaya Suriyani Christiani Association and thus ceased to be the parishioners of the first defendant church. The allegation of the plaintiffs that their names are included in the parish registers of the first defendant church maintained in the year 1973 has been specifically denied by the defendants.
4. When the defendants filed objections to the application for temporary injunction raising the contentions referred to above, the plaintiffs filed I.A.No.1470 of 2014 seeking orders directing the second defendant to produce the parish registers of the first defendant church including its back registers from the year 1972-73.In the said interlocutory application, initially the court passed an order directing the defendants to produce the documents or file affidavit. Though the second defendant has initially filed an affidavit in the suit pursuant to the said order stating that the defendants are not in possession of the parish registers of the first defendant church, later the second defendant filed an affidavit stating that they are in possession of the registers of the first defendant church for the period from 2002. When I.A.No.1365 of 2014 came up for orders thereupon on 29.10.2015, the learned counsel for the second defendant undertook that they will produce the parish registers of the first defendant church from the year 2002 onwards. Later, on 14th November, 2015, the court noticed that the second defendant has not produced the parish registers of the church since 2002 as undertook by his counsel. Consequently, the court below allowed I.A.No.1365 of 2014 and granted the order of injunction sought by the plaintiffs on the ground that since the defendants have not produced the documents which they undertook to produce, the plaintiffs are entitled to the order of injunction sought by them. The defendants 1 and 2 are a
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