IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 215 of 2008()
1. FR.M.P.JOSE, S/O. M.O.PAULOSE,
... Petitioner
2. M.O.PAULOSE,S/O.OUSEPH, AGED 86
Vs
1. C.C.MATHAI, S/O. LT C.C.CHACKO,AGED 68
... Respondent
2. P.P.CHACKAPPAN, S/O. LT PAILY,AGED 68
3. ST MARY'S ORTHODOX CHURCH ,
4. FR O J JACOB,S/O. JOHN,AGED 57,
5. VARGHESE, S/O. LOOKOSE KATHANAR,
6. C.C.GEORGE,S/O.LT C.C.CHACKO,
For Petitioner :SRI.P.J.PHILIP
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/11/2008
O R D E R
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
Tr.P(C) No.215 of 2008
and
Tr.P(C) No.227 of 2008
= = = = = = = = = = = = = == = = = = = = = = = = =
Dated this the 13th day of November, 2008
O R D E R
————-
The common question for consideration in these petitions
for transfer filed under Section 24 of the Code of Civil Procedure
(for short, “the Code”) is whether the suits instituted in the
regular civil courts are to be withdrawn and transferred to the
First Additional District and Sessions Court, Ernakulam which is
constituted as “the Special Court” for trial of cases connected
with the Malankara Church Disputes. Since common question
arose for consideration, these petitions are being disposed of by
this common judgment.
2. I have heard counsel on both sides and perused the
records.
3. Learned counsel for petitioners contended that
since it is a dispute involving Malankara Church, these cases are
to be tried by the Special Court to avoid conflicting decisions. It
is also the contention of the learned counsel that though
Special Court was initially constituted only till the end of
February, 1997, it continued thereafter and by deeming fiction
Tr.P(C) Nos.215 & 227 of 2008
-: 2 :-
has now become a permanent court. Learned counsel for the
respondents contended that the Special Court was constituted for trial
of cases concerning Malankara Church disputes, those disputes are
settled by the decision of the Apex Court in P.M.A. Metropolitan
v. Moran Mar Marthoma (AIR 1995 SC 2001), disputes now
existing are only between some of the individual churches concerned
and its parishners and hence, cases as in these petitions not
necessarily be tried by the Special Court. Counsel pointed out that
the Special Court is also functioning as a regular Additional District
and Sessions Court as well. Several cases relating to disputes
between the individual churches and some of its parishners are still
pending consideration in the Special Court along with other regular
cases made over to it by the learned Principal and Sessions Judge,
Ernakulam and hence it is not necessary that these cases are also
transferred to the Special Court which would only add to the
pendency in that court.
4. Tr.P.C. No.215 of 2008 concerned O.S. No.287 of 2008 filed
by respondents 1 and 2 in the Munsiff’s Court, Perumbavoor. Tr.P.C.
No.227 of 2008 concerned O.S. No.130 2008 filed by the respondent
in the Munsiff’s Court, Ettumanoor. Prayer is to withdraw these cases
Tr.P(C) Nos.215 & 227 of 2008
-: 3 :-
from those respective courts and transfer the same to the Special
Court. Annexure B appended to these petitions is the copy of G.O
(Rt.) No.1532/76/Home dated 30.6.1976 of Home (C) Department
which reads as follows:
The Registrar of High Court has
recommended that one Additional Session's
Court may be established at Ernakulam
exclusively for the Trial of cases connected
with Malankara church Disputes now pending in
various courts of the State.
2. Government accept the
recommendation and are pleased to accord
sanction for establishing a Special Court at
Ernakulam with the following staff exclusively
for trial of cases concerning Malankara Church
Disputes till the end of February, 1977″.
5. Annexure C is the copy of G.O(P)64/77/Fin. dated
19.2.1977 of Finance (PR.U) Department. That Government order
concerned the test to be applied in examining a proposal to make a
temporary post permanent (as per Annexure B referred above Special
Court was constituted till the end of February, 1977). Relevant portion
of Annexure C reads as follows:
Tr.P(C) Nos.215 & 227 of 2008
-: 4 :-
“Posts which have been continuously in
existence for a minimum period of five years
will be treated as permanent without further
Orders. This order is without prejudice to the
provisions of Government’s power for abolition
of temporary or permanent posts.
Notwithstanding these orders, in the case of
posts created for specific items of work which
are prima facie of a temporary nature, the head
of department, while proposing that spell of
continuener which completes or crosses the
five year limit should specifically examine and
record his views whether the posts should be
made permanent when they complete five
years or that they may be abolished on the
expiry of the proposed term or on completion of
the specific item of work”.
6. Annexure D, G.O.(P) No.64/77/Fin. dated 19.2.1977 of
Home (C) Department states that “Sanction is accorded for the
continuance of the temporary courts and posts attached to them as
detailed in the statement appended to this order till the end of
February, 198- (year mentioned is 1982 as could be discerned from
Annexure E). Annexure E is photocopy of the letter No.PIO97/2007
Tr.P(C) Nos.215 & 227 of 2008
-: 5 :-
dated 5.9.2007 of Public Information Officer, High Court of Kerala
Ernakulam addressed to Advocate Shri Philip P.J. Advocate Shri Philip
P.J. requested for information under the Right to Information Act 2005
from the High Court as to the continuance of the Special Court even
after the time prescribed in Annexure B. The Public Information
Officer informed Advocate Shri Philip P.J., after referring to the relevant
Government Orders, thus:
“So the posts have become permanent.
In view of that, the Court also may be deemed
to have become permanent. No other orders
declaring this Court as a permanent one is
available. Hence, the status of Special Court
for the trial of Malankara Church Disputes is
one of permanent nature with effect from
31.05.1981 and all disputes in the said matter
is to be filed before the Special Court”.
7. It is in the light of Annexures B to E stated above, that
learned counsel for the petitioners contended that cases referred to in
these petitions are to be withdrawn from the respective munsiff’s
courts and made over to the Special Court.
8. Section 24 of the Code of Civil Procedure empowers the
Tr.P(C) Nos.215 & 227 of 2008
-: 6 :-
High Court to transfer any suit, appeal or to withdraw any suit pending
in courts subordinate to it and try or dispose of the same or, transfer,
the same for trial or disposal to another court subordinate to it and
competent to try or dispose of the same. In these petitions the only
ground sought for transfer of the cases is that the Special Court has
been constituted for trial of cases involving disputes of the nature
involved in the suits referred to in these petitions and that unless suits
are tried by the Special Court there is possibility of conflicting
decisions. Therefore the question whether these cases are to be
transferred to the Special Court has to be decided in the light of the
above contentions alone.
9. It is clear from Annexure B that it was pursuant to a
recommendation made by the Registrar of this Court that “one
additional Sessions court may be established at Ernakulam exclusively
for the trial of cases connected with Malankara Church Disputes now
pending in various courts of the State (underline supplied) that the
Government accepted the recommendation and were pleased to
accord sanction for establishment of a Special Court at Ernakulam for
trial for cases concerning Malankara Church Disputes till the end of
February, 1977” (underline supplied). It is therefore clear that the
Tr.P(C) Nos.215 & 227 of 2008
-: 7 :-
very constitution of the Special Court was for trial of various cases
connected with Malankara Church Disputes which then were pending
in various courts of the State. It is true that by a deeming fiction as
revealed from Annexures C to E, the Special Court continued to be in
existence even after the original time fixed, i.e., till the end of
February, 1977.
10. To understand what exactly were the church disputes
involved in the cases which were pending in various courts of the State
as on the date of Annexure B constituting the Special Court, profitable
reference can be made to the decision in P.M.A. Metropolitan’s
case. The common dispute then existed concerned the correctness or
the binding nature of the Hudaya Canon accepted by the Malankara
Jacobite Syrian Community, whether the catholic established by the
Patriatch Abdul Messiah was valid and binding on the entire
Malankara Church, whether by establishment of the Catholicate,
Patriatch was deprived of his powers to ordain Metropolitans, etc.,
whether Malankara Church became an autocephalous church and
disputes of like nature. These disputes were settled by the decision in
P.M.A. Metropolitan.
11. O.S. No.287 of 2008 of the Munsiff’s Court, Perumbavoor
Tr.P(C) Nos.215 & 227 of 2008
-: 8 :-
referred in transfer petition No.215 of 2008 is filed by one C.C. Mathai
and another against St.Mary’s Orthodox Syrian Church, Vadavucode.
In paragraph 4 of the plaint (Annexure A) it is stated that there is no
lawful Kaikkaran or trustee of the church duly elected in the general
body of the church and making use of absence of proper Kaikkaran for
administration the church, defendants 3 and 4 therein are trying to
interfere in the administration of the church and misappropriate its
assets. Plaintiffs alleged that the whole funds of the church has
been misused by defendants 3 and 4. Reliefs prayed for in that case is
a decree of permanent prohibitory injunction restraining defendants 3
to 6 in the suit and their men from interfering with the administration
of the church and its chappals and the plaint schedule properties and
from utilising its funds or from administering the plaint schedule
properties of the church, etc. Annexure A in Transfer Petition No.227
of 2008 is the plaint in O.S. No.130 of 2008 of the Munsiff’s Court,
Ettumanoor. That suit was filed by one Fr.O.S. Kuriakose against
Fr.Andrews and others. It is averred in paragraph 8 of the plaint that
the first defendant is now functioning as Priest in the plaint A schedule
church without any lawful authority, first defendant is one among the
persons who disowned the 1934 Constitution and is acting without any
Tr.P(C) Nos.215 & 227 of 2008
-: 9 :-
appointment orders from the present lawful Diocesan Metropolitan of
Kottayam. Plaintiff claimed that he has been duly appointed as the
Vicar of the church by the lawful Diocesan Metropolitan of Kottayam.
On that premise, plaintiff prayed for a declaration that himself, his
successors and priest assistants appointed by the Diocesan
Metropolitan of Kottayam are the lawfully appointed vicar and priest
assistants entitled to function as such in the plaint A schedule church
and for a prohibitory injunction restraining the defendants and their
supporters from preventing or obstructing the plaintiff and his lawfully
appointed successors and priest assistants from functioning as such.
12. A reading of the plaint in these cases would indicate that
these cases did not involve any dispute regarding the validity or
binding nature of the 1934 Constitution upheld by the Apex Court in
P.M.A. Metropolitan’s case or, any of the disputes settled by that
decision. Therefore, it is not as if these cases are to be tried
exclusively by the Special Court. There is also no possibility of any
conflicting decisions if these suits are tried by the respective regular
civil courts. Hence, I am not persuaded to accept the contention of the
counsel for the petitioners that unless these suits are transferred to
the Special Court, there will be conflicting decisions on the same
Tr.P(C) Nos.215 & 227 of 2008
-: 10 :-
issue.
13. As pointed out by the learned counsel for the respondents
the Special Court referred above is also a regular Additional District
and Sessions Court trying various civil/criminal cases including
sessions cases made over to it for trial. Civil cases involving factional
fights between the churches and its parishners are pending
consideration in the Special Court. In these circumstances, it is not
appropriate that these suits, in the absence of any other special
reasons such as convenience of parties, etc., are withdrawn and
transferred to the Special Court which would only add to the
pendency of cases in that court. Hence the request of the petitioners
cannot be allowed.
These petitions are therefore, dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv