2009 Supreme(Ker) 1097

High Court of Kerala
V. Ramkumar, J.
Varkey Abraham & Ors - Appellant
Versus
St Thomas Orthodox Syrian Church Nechur & Ors - Respondent
A.S. No. 844 of 1998
Decided On : 14-10-2009

Headnote:

CHURCH ADMINISTRATION - SUIT FOR DECLARATION THAT CHURCH IS PARISH CHURCH INCLUDED IN MALANKARA ORTHODOX SYRIAN CHURCH - SUIT FOR DECLARATION THAT CHURCH IS TO BE ADMINISTERED IN ACCORDANCE WITH MALANKARA ORTHODOX SYRIAN CONSTITUTION - SUIT FOR INJUNCTION RESTRAINING DEFENDANTS FROM CONVENING MEETING OF PARISHIONERS - SUIT FOR INJUNCTION RESTRAINING DEFENDANTS FROM SPENDING CHURCH FUNDS FOR ANY PURPOSE OTHER THAN DAY TO DAY AFFAIRS OF CHURCH - SUIT FOR INJUNCTION RESTRAINING DEFENDANTS FROM PERMITTING DEFENDANTS TO ENTER CHURCH OR PAYING DEFENDANTS ANY MONEY FROM CHURCH FUND - SUIT FOR INJUNCTION RESTRAINING DEFENDANTS FROM ENTERING CHURCH AND MEDDLING WITH ADMINISTRATION OF CHURCH - SUIT FOR DIRECTING DEFENDANTS TO PAY COSTS TO PLAINTIFFS - SUIT FOR GRANTING SUCH OTHER RELIEFS THAT MAY BE PRAYED FOR - PLAINTIFFS 2 TO 5 IN O.S.NO.32 OF 1977 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM (DESIGNATED CHURCH COURT) CHALLENGE THE JUDGMENT AND DECREE DATED 8.9.1998 PASSED BY THAT COURT.

Fact of the Case:

Plaintiffs 2 to 5 in O.S.No.32 of 1977 on the file of the 1st Additional District Court, Ernakulam (Designated church Court) challenge the judgment and decree dated 8.9.1998 passed by that Court.

Finding of the Court:

The suit which was instituted without leave under Section 92 C.P.C. was not maintainable. Even if leave was sought under Sec. 92 C.P.C. in this case, that would be of no avail, since the suit was filed before the Munsiff's Court which was totally incompetent to entertain a suit under Sec. 92 C.P.C. Merely because the suit was subsequently transferred to the designated Church Court which is presided over by an additional District Judge, the suit will not become one instituted before the principal civil Court of original jurisdiction even assuming that leave under Section 92 C.P.C. was obtained from that Court in advance.

Issues: 1) Is the first defendant Nechoor St. Thomas church a constituent Parish Church of the Malankara Orthodox Syrian Church liable to be administered under the authority of Catholicos-cum-Malankara Metropolitan or is it a self governing autonomous church ? 2) Is Moran Mar Baselios Marthoma Mathews-I any way disqualified fron functioning as the Catholicos-cum- Malankara Metropolitan by reason of the Kalpana of the Patriarch of Antioch dated 21-8-1975 relied on by the defendants ? 3. Is the first plaintiff entitled to be declared as the Vicar of the plaint churches 4. Is the first defendant church liable to be administrated under the Constitution of the Malankara Church originally passed on 1934 and amended up to date ? 5. Is the 2nd defendant entitled to function as the Vicar of the church ? Is he liable to had over the records of the church to the Ist defendant ? 6. Is the 2nd defendant competent to convene the Edavaka Yogam of the Ist defendant Parish ? Is the Edavaka Yogum of the Ist defendant parish liable to be convened except on finalisation of the list of qualified and competent members of the yogam ? 7. Is the 7th defendant a validly consecrated and appointed Metropolitan of the Malankara church ? Is he entitled to exercise any episcopal authority over the plaint parish ? 8. Is the 6th defendant entitled to continue as the Metropolitan of the Malankara Diocese after the disciplinary proceedings taken against him by the Malankara Episcopal Synod ? 9. Is the claim made on behalf of the 6th defendant that he is the Catholicos- cum-Malankara Metropolitan valid and sustainable ? 10. Are defendants 6 and 7 entitled to enter and interfere in the administration of the first defendant Parish ? 11. Are the plaintiffs entitled to the injunction and declaration sought for ? 12. Are the defendants competent to question the validity and enforcibility of the constitution and the authority of the Catholicos-cum-Malankara Metropolitan in view of the Supreme Court ruling reported in 1958 KLT 721 ? 13. Reliefs and costs.

Ratio Decidendi: The suit is not maintainable. The plaintiffs have no cause of action. They have ceased to have communion with the Jacobite Syrian faith and are presently not members of the first defendant church. They are the followers of late Baselius Ougen - I who was found guilty of deviations from the fundamental faith of the church by the Universal Episcopal Synod of the Syrian Orthodox church (of which Malankara church is a part) held on 16-6-1975 and on subsequent days. On the basis of the said decision of the Synode which is the highest Ecclesiastical Tribunal in the church, Patriarch of Antioch of the East declared Basselius Ougen I Mathews Mar Athanesius and their partisans as apostates on 21-8-1975. Mathews Mar Athanesius now calls himself as Basselious Marthoma Mathew-I. The first defendant is described in the plaint as the church which the plaintiffs call as the "Nechur St. Thomas Orthodox Syrian church". The correct name of the church is "Nechur Jacobite Syrian Marthommen church" (hereinafter called as "the church" ). The said church is not a legal entity and cannot be sued as a defendant by itself. It is further illegal for the church to be represented by the plaintiffs. The church is a public trust and the aid of the court is sought for against the trustees or administrators for authorising them to discharge their duties in relation to the objects of the trust. The reliefs prayed for in the plaint are really and substantially those stated in Sec. 92 (1) of the Code of Civil Procedure, (C.P.C. for short). Hence, the suit without obtaining sanction under Sec.92 (1) C.P.C. is not maintainable.

Final Decision: This appeal is therefore, dismissed and the cross-objection filed by the contesting defendants, to the extent that it has raised the above objection regarding want of leave under Section 92 C.P.C. is allowed. The suit will stand dismissed as not maintainable. The plaintiffs would consequently be disentitled to any of the reliefs prayed for in the plaint. The parties shall, however, bear their respective costs in this appeal.