JUDGMENT

Dated this the 18th day of March 2021 The original petition is filed under Article 227 of the Constitution of India, to set aside Ext.P3 order dated 4.8.2020 passed in O.S 15/2016 by the Court of the Subordinate Judge, Muvattupuzha (Trial Court).

2. The facts, in brief, in the original petition are: the petitioners are the additional defendants 7 and 8 in Ext.P1 plaint filed by the respondents 1 to 5 and two others. Ext.P1 is filed, inter alia, to declare that St.John's Besphage Jacobite Syrian Church, Pulinthanam is a constituent parish church of the Malankara Orthodox Syrian Church and only the members who accept the 1934 Constitution are entitled to be parishioners of the church. The petitioners had filed Ext.P2 written statement refuting the allegations in plaint. The Trial Court without following the procedure prescribed for trying a suit under the Code of Civil Procedure,1908 (in short 'Code'), and in violation of the mandate under Order XIV of the Code, strangely proceeded to consider the question whether the suit is covered by the decision of the Hon'ble Supreme Court in K.S.Varghese & Ors v. St.Peter's & Paul's Syrian Orthodox Church and Others [2017) 3 KLT 261 (SC)] ( in short ‘K.S.Varghese’). The Trial Court by Ext.P3 order entered a finding that the suit is covered by K.S Varghese, which is ex facie illegal and against the settled procedure established under the Code. The petitioners are put to manifest injustice and prejudice and are robbed of a fair trial. Therefore, Ext.P3 order be set aside.

3. Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the petitioners and Sri.S.Sreekumar, the learned Senior Counsel appearing for the respondents 1 to 7, 11 and 12.

4. Sri.K.Ramakumar contended that the Trial Court has passed Ext.P3 order in flagrant violation of the provisions of the Code and a host of judicial precedents on the point, that too without a foundation in the pleading or after framing an issue. Surprisingly, the Trial Court after passing Ext.P3, has formulated issues touching on matters covered by Ext.P3. Therefore, the petitioners are precluded from letting in evidence. The Trial Court, if it wanted to adopt such a course, ought to have framed a preliminary issue and then decided whether the suit is covered by K.S Varghese and, thereafter, proceeded to try the other issues in the suit. Instead, the Trial Court has passed Ext.P.3 order ― which is neither a decree nor an appealable order ― compelling the petitioners to file the original petition. Ext.P3 is manifestly erroneous and is liable to be set aside.

5. Sri.S.Sreekumar, on the contrary, argued that Ext.P3 order was passed in light of the directions of the Hon'ble Supreme Court in Ext.P4 order, directing all Trial Courts before whom cases relating to Malankara Church are pending, to examine whether the pending cases are covered by K.S Varghese. In case the court felt that the case is covered by K.S.Varghese, the court was obliged to decide the said question before proceeding with other issues. It was in the above given circumstances that the Trial Court decided the question whether Ext.P1 was covered by K.S Varghese. Even though, technically, the Trial Court had not framed a preliminary issue, the Trial Court has decided that the suit is covered by K.S.Varghese, by Ext.P3, which cannot be found fault with. Both parties had participated in the hearing and Exts.A1 to A74 were marked on the side of the respondents. Hence, it is too late in the day for the petitioners to now contend that Ext.P3 is erroneous and passed in deviation of the established procedure laid down under the Code. The learned Senior Counsel placed reliance on the decisions of the Hon'ble Supreme Court in Fr.Issac Mattammel Cor Episcopa v. St. Mary's Orthodox Syrian Church [2019 (4) KLT 1 (SC)] and Mathews Mar Koorilos v. Pappy [2018 (3) KLT 990 (SC)] and contended that the decision in K.S.Varghese case has been held to be correct law in the later decisions. K.S Varghe