V. Ramkumar, J.

The appellants in this first appeal are the plaintiffs in the suit, O.S. No. 162 of 1977 on the file of the Church Court (I Addl. District Court, Ernakulam). The said suit was one filed by the Catholicos (Orthodox) faction of the Syrian Christians fora declaration that all religious worship and administration of the assets of the Ist plaintiff-plaint schedule church (St. Peters Orthodox Syrian Church, Puthencruz, together with the church building and cemetery comprised in Survey Nos. 390/3, 392/1/78, 392/1/77/2, 382/3B and 392/1/77 in Pannikuzhi Kara, Chemmanad Village, Kunnathunad Taluk) are to be carried on under the authority of the Catholicos and in accordance with the constitution of the Malankara Orthodox Syrian Church and for a perpetual injunction restraining defendants 2 to 11, members of the Jacobite (Patriarch) faction of Syrian Christians from interfering with the religious worship or administration of the plaint schedule church or from obstructing the 2nd plaintiff (the Vicar) or the Catholicos from conducting worship or from carrying on the administration of the 1st plaintiff church, namely the St. Peter's Orthodox Syrian Church, Puthencruz.

2. The suit was resisted by the defendants on various grounds. The trial Court originally framed 19 issues for trial. Subsequently, some of the defendants raised an additional objection that the suit was bad for want of leave under Section 92 Civil Procedure Code Thereupon, one more issue was framed as Additional Issue No.20 as follows:

"Whether the suit is maintainable for want of leave to institute the same as contemplated under Section 92 Civil Procedure Code ?

The trial Judge then heard both sides and as per the impugned Judgment dated 28.11.2000 upheld the above objection of the defendants and dismissed the suit as not maintainable due to noncompliance of Section 92 Civil Procedure Code Hence, this appeal by the plaintiffs.

3. The only point which arises for consideration in this appeal is as to whether the St. Peter's Orthodox Syrian Church, Puthencruz, is a public religious trust and whether the impugned Judgment holding that the suit was not maintainable due to the non-compliance of Section 92 Civil Procedure Code, is unsustainable or not ?

The Point

4. We heard Advocates M/s. B.G. Bhaskar and Biju Abraham, the learned counsel appearing for the appellants and Sr. Advocate Sri. K. Ramakumar and Advocate Sri. P.J. Philip the learned counsel appearing for the respondents.

Argument of the Plaintiffs/Appellants

5. Assailing the judgment of the Church Court, Advocate Sri. B.G. Bhaskar, appearing for the plaintiff/appellants made the following submissions before us:

The first plaintiff Church, namely, the St.Peter's Orthodox Syrian Church, Puthencruz is not a public religious or charitable trust as was wrongly assumed by the lower court. The said Church is a purely private trust in which the beneficiaries are not the general public, but the persons belonging to the particular denomination and who are ascertainable. Unlike the Orthodox group according to whom churches are episcopal i.e., the right to govern the Church is vested in the Bishop, the Patriarch group believes that the Churches are congregational i.e., belonging to the congregation. Most of the American churches are congregational and they have no Vicar (who is an agent of the Bishop) but only a Pastor who has no religious power but has only secular powers. The Vicar on the other hand has both secular as well as religious powers. The final verdict of the Apex Court in P.M.A. Metropolitan's v. Moran Mar Marthoina & Ors. (1995 (2) KLT SN 28 (C.No.37) SC = AIR 1995 SC 2001) is that the Churches are neither episcopal nor congregational but are episcopal only to the extent to which the constitution says so. In the Jacobite Syrian Churches the Bishops have only a power of approval unlike the purely ep