മണർകാട് പള്ളി കേസ് @1960&1961

​In the Munsiff’s Court of Kottayam.

​Present:- Sri. A. R. Sreenivasan, B. A., B. L., Munsiff.

Thursday, the 18th June, 1964 / 28th Jyaistha, 1886.

​O. S. No. 315/1960.

​PLAINTIFFS:-

1. ​Kurian Punnose of Karimpanathara, Kuzhipurayidom kara, Manarcad Village.

2. ​Thomas Chacko, residing at Mumpadathu, do. kara.

3. ​Itty Kuruvilla of Udumpanattu, Amayannur kara, Ayarkunnam Village.

4. ​Iype Kurian of Parampukara, Manarcad kara and Village.

5. ​Varghese Varghese of Attarvayalil, Kuzhipurayidom kara, Manarcad Village.

• ​1st Plaintiff By Advocate Sri. P. K. Kurian.

• ​Plaintiffs 2 to 5 By Advocate Sri. K. I. Mathen.

​Defendants,-

1. ​Poulose Mar Philixinos, Metropolitan, residing at Piramadom Dayara, Piramadom kara, Moovattupuzha Village.

2. ​Elias Mathews Kathanar of Pazhayadath vayalil, Malam kara, Manarcad Village.

3. ​Kurian Abraham Kathanar of Karimpanathara, Kuzhipurayidom kara, Manarcad Village.

4. ​Thomas Kuriakose Kathanar of Ittiyadath, do. kara.

5. ​Anthrayose Kuriakose Kathanar of Uravakkal Pathayil, do. kara.

6. ​Kuriakose Kuriakose Kathanar, of Vettikunnel Kuzhipurayidom kara, Manarkad Village.

7. ​Ittiyavirah Kuriakose Kathanar of do.

• ​1st defendant By Advocate Sri. N. K. Bhaskaran Nair.

• ​Defendants 2 to 7 by Advocate Messrs. V. V. Ananthapadmanabha Iyer and P. V. Thomas.

​O. S. 35 of 1961.

​PLAINTIFFS:-

1. ​Kurian Punnose of Karimpanathara; Kuzhipurayidom kara, Manarcad Village.

2. ​Thomas Chacko of Mumbadath, do. kara.

3. ​Itty Kuruvilla of Udumpanatt, Amayannur kara, Ayarkunnam Village.

4. ​Iype Kurian of Parampukara, Manarcad kara and Village.

5. ​Varghese Varghese of Attarvayalil, Kuzhipurayidom kara, Manarcad Village.

6. ​Onnooty Cheriyan of do.

7. ​Kuriakose Mathoo of Kunnel, Manarcad kara and Village.

• ​1st Plaintiff By Advocate Sri. P. K. Kurian.

• ​Plaintiffs 2 to 7 By Advocate Sri. K. I. Mathen.

​DEFENDANTS:-

1. ​Ittiyavirah Kuriakose Kathanar of Vettikunnel, Manarcad kara and Village.

2. ​Kuriakose Kuriakose Kathanar of do.

3. ​Elias Mathews Kathanar of Pazhayadathu vayalil, Malam kara, Manarcad Village

​-2-

4. ​Thomas Kuriakose Kathanar residing at Uravackal Puthenpurayil, do. kara.

5. ​Kurian Abraham Kathanar of Karimpanathara, Kuzhipurayidom kara, Manarcad Village.

6. ​Anthrayose Kuriakose Kathanar of Uravackal Puthayil; Malam kara, Manarcad Village.

7. ​Varghese Thommy of Mannoorparampil, Kuzhipurayidom kara, Manarcad Village.

8. ​Varghese Korah of Kunnel, Manarcad kara and Village.

​Defendants By Advocate Messrs. V. V. Ananthapadmanabha Iyer and P. V. Thomas.

​These two suits coming on for final hearing on the 11th, 12th, 13th, 14th, 19th, 20th and 27th of November, 1963; in the 3rd, 4th, 5th and 12th of December, 1963; on the 1st of January, 1964; on the 5th, 6th, 12th, 13th, 18th and 25th of February, 1964; on the 4th, 5th, 7th, 10th, 12th, 17th, 21st and 25th of March, 1964; on the 1st of April, 1964; on the 4th, 5th, 9th and 10th of June, 1964; the court on 18th June, 1964, delivered the following:-

​COMBINED JUDGMENT.

​O. S. 315/60:- The suit is for a permanent injunction to restrain the first defendant from entering one Manarcad Church, its buildings and purayidoms and taking part in sacred services that are being conducted there. It is further prayed that he may be prevented by an injunction from taking part in the administration of the Church and also from receiving amounts from the above Church. The other defendants are sought to be injuncted from helping the first defendant in any of these things. The allegations in the plaint are as follows:-

​10 The plaintiffs and the defendants 2 to 7 are members of one Manarcad Church within the jurisdiction of this court. It is a parish church of Jacobite Syrian Christians and the defendants 2 to 7 are the priests of that church. Among them the 7th defendant is the Vicar. It is stated that the church and its premises are in the management of the defendants 2 to 7 for the purpose of worship and other spiritual activities. This church belongs to Jacobite Syrian Christian who are members of the Malankara Church. It was established in ancient times for worship etc. according to the Faith of the Jacobite Syrians. Among the Jacobite Syrians there were some disputes for about 50 years and all those were settled as per the decision of the Supreme Court in Appeal 267/58 and it is stated by the plaintiffs that in that suit the disputed church was also included in a representative capacity.

​20 At the time when these disputes were pending there were 2 groups in the Malankara Jacobite Syrian Church. One group was following Catholicos who has his principal seat at Kottayam and the other group was following the Patriarch of Antioch who has his seat in Syria. These groups were known as the Patriarch’s party and the Catholicos Party. The Supreme Court found that the appellant before the Supreme Court was the Catholicos and also the validity elected Malankara Metropolitan. After that decision by the Supreme Court on 16-12-58 the Patriarch and the Catholicos accepted each other. With this acceptance the dissensions in the church was over and the church became a United one.

​30 With this Unity the constitution of the entire church became binding upon the disputed parish church also. As per that constitution the church has to come under the Catholicos who is also the Malankara Metropolitan. The synod of the catholicos has got power to advise Catholicos as regards the administration of the entire church. Before the church became a United one there were separate metropolitans for both the parties. The first defendant then was the Metropolitan in the Patriarch’s Party for the Kottayam Metropolitan Diocese. After 16-12-58 he continued in the same capacity and on 22-12-58 he accepted the constitution and the Catholicos. For this he gave a written undertaking. He also gave orders to the Churches that were under him to act accordingly.

​40 Thereafterwards the first defendant was doing various acts in conformity with that agreement. Sometime later a need arose for re-allotting different Dioceses to the Metropolitans of this Church. On 20-2-59 and on 21-2-59 the Managing Committee of the Association met for the purpose of deciding this allotment. The first defendant took part in both of these. These meetings accepted the advice given by the synod. As per that accepted advice the first defendant was made the joint Metropolitan of Kandanad Metropolitan Diocese. The first defendant accepted that also.

​-3-

​He and his joint Metropolitan executed some documents as regards the conditions under which that joint Metropolitan ship is to be held by them. On 25-2-59 the Catholicos formally ordered the allotment of different Diocese. That order was received in the disputed Church also. As per that order the first defendant is entitled to administer only the Kandanad Metropolitan Diocese. After that date the first defendant cannot interfere with the administration of Kottayam and other Diocese for which he was the Metropolitan for the Patriarch’s party. In Kottayam Metropolitan Diocese, in which the disputed church is included, one Mar Grigorios was the Metropolitan from that date. The joint Metropolitan for Kottayam Diocese was Mathews Mar Evanios. After the Unity in the Church the disputed Church has also taken part in meetings called by the Catholicos and the 6th defendant was elected as a member of the Managing Committee of the Association and he has taken part in that Committee meeting which was presided over by the Catholicos. But After the allotment of the Edavakas the first defendant again desired to get back the authority over the churches which was under him previously in Kottayam and other Metropolitan Dioceses for which he was the Metropolitan for the Patriarch's party. He got some supporters for this and with their help he started opposing the Catholicos and his synod. Then the Catholicos sent a letter to the first defendant on 11-3-60 asking for an explanation for his activities. For this the first defendant sent replies putting the dates 14-3-60 and 29-3-60 on these reply letters. Since the first defendant was creating dissention in the church and was opposing the Catholicos and his synod a notice was given to him on 5-4-60 for showing reasons why action should not be taken against him. The episcopal synod of the Catholicos later conducted an enquiry as regards that and decided to punish the first defendant. As per that decision on 17-6-60 the Catholicos issued an order removing the first defendant from all the powers of the administration that he has got as a Metropolitan and interdicted him from entering into any church in Malankara and taking part in any action suited to a Metropolitan. The first defendant was permitted to live in the Piramadom diara. The plaintiffs contend that the first defendant therefore is not entitled to enter the disputed church and take part in its administration or in sacred rites that are conducted there. The other defendants therefore are also not entitled to help the first defendant in all these things. It is stated that on 9th July, 1960 the first defendant came to this Church and started to live in one of the rooms in the Church. On 10th July 1960 he entered the church and took part in sacred rites. It is stated that he then gave priesthood to one George Jacob from that Church on that date and continued to live in the rooms attached to the Church till 16th July 1960. It is stated that all these actions of the first defendant are against the order of the Catholicos and the first defendant is only making use of the disputed church as a tool for his propaganda. It is stated that the first defendant did not even ask the permission of the seventh defendant for doing all these from this church even though the 7th defendant is the Vicar of this church. The actions of the first defendant has hurt the feelings of the members of this church. They intimated the first defendant about it and then the first defendant left the church on 16th July 1960. The plaintiff understands that the first defendant is taking steps to carry on further such wrong practices from this Church. It is stated if the first defendant continues to do these things it will amount to a trespass by the first defendant into the church and the buildings attached thereto. They will be against the rightful use of this Church. That will cause irreparable injury and grief to the plaintiffs. Therefore the plaintiffs pray for the permanent injunction about which I have already mentioned in the beginning. The plaintiffs also say that they have brought this suit in a representative capacity and that they have prayed for an order under Order 1 Rule 8 by a separate petition.

2. ​The first defendant has filed a written statement. According to the first defendant the disputed church was established for the worship and spiritual activities of Jacobite Syrian Christians who are under the Patriarchs of Antioch. After the establishment of this church it is stated that this church has acquired considerable immovable properties. This church was always acting under the orders from the Patriarchs of Antioch or the Metropolitans who are appointed by the Patriarchs of Antioch. Only those people who are prepared to follow the faith under the Patriarch of Antioch and the Metropolitans appointed by him are entitled to enter and worship in this Church. Only these people are having rights in this church and the properties of this church. This disputed church is having a constitution of its own. That constitution clearly states that the

-4-

​Patriarch of the Antioch is the Head of its faith and only Metropolitan appointed by him are entitled to rule over this church. The first defendant, it is clearly stated, is the Metropolitan having ruling powers over this church in that constitution. For a person who questions this authority the membership in this Church will be lost. That is also stated by the constitution. As the plaintiffs in this suit question the authority of the Patriarch and the first defendant in this church, they are not members of this church and they have lost their membership. Therefore the plaintiffs or their helpers are not entitled to file this suit. The administration of this church is being carried on by a General-Body Meeting of the members of this Church. This General-Body elects Trustees for looking after the properties of the church and keeping these properties in their possession. These Trustees are spending amounts for this church and are also keeping accounts for the same. The contention that the church building and premises are in the possession and management of defendants 2 to 7 is not at all correct. The suit is not maintainable without impleading the trustees who are in possession of the church and its properties. In ancient times there was only one Metropolitan for the entire Malankara. He was ruling Malankara under the Patriarch of Antioch. Later the Patriarch himself divided Malankara into 7 separate Metropolitan Dioceses. 7 Metropolitans were also appointed to these Dioceses. All these 7 Metropolitans were having equal powers. They were only under the Patriarch of Antioch and nobody else. <u>Every Jacobite parish Church in Malankara is a separate trust by itself.</u> For the properties belonging to that parish church the members of that Edavakas alone will be entitled. The members of the other churches are not entitled for the properties of another church. Apart from these separate churches there are some common properties belonging to the entire Syrian Christian Community. For administrating these common properties there are 3 trustees. These 3 trustees are one Metropolitan, one priest and a lay man. When these common properties originated there was only one Metropolitan in Malankara. He was known as the Malankara Metropolitan. The Metropolitan who becomes the trustee of this common property is <u>known as the Malankara Metropolitan</u>. That Metropolitan is not having any more powers than the other Metropolitans as regards administration of the parish churches. He was getting powers to rule over the parish churches only if he was empowered by the Patriarch of Antioch for that purpose. As regards the common properties there were some disputes in this community. A. S. 267/58 of the Supreme Court mentioned in the plaint is one of such litigations. The allegation in that suit the disputed church also took part in a representative capacity will be true only to a very slight extent. It will be true only in the sense that as regards the common properties of the entire church the disputed church was also represented in it. The plaint allegation that Malankara Metropolitan was appointed the Head of all the Metropolitans after the division of Malankara into 7 different dioceses in 1052 is denied by the first defendant. The Malankara Metropolitan had only powers as regards administration of the common properties. For appointing Metropolitans and for laying the tenants which govern the church, only the Patriarch have got powers. There were no 2 patriarchs in this church one and the same time. Once upon a time there was one ruling patriarch and one Patriarch who had lost the powers as a Patriarch. With the help of the person who lost the powers, the Catholicate was established here. That is not valid. That Catholicos was appointed only for some very limited purposes. It is not correct to say that this Catholicos was appointed for exercising the powers of Patriarch in Malankara. The constitution mentioned in the plaint was not framed for the purpose of providing rules for administration of each and every parish church in Malankara. That administration will be done only as per the decisions of the General-Body of that particular parish church. The Body which framed the constitution mentioned in the plaint had no authority to frame constitution for each and every distinct parish church on this community. The Supreme Court has decided only the dispute as regards the common properties belonging to this community as a whole. On 16-12-58 all the Metropolitans in Malankara joined together and took some steps for ending the disputes in this community. The Patriarch had sent an order saying that he is prepared to accept the Catholicos for establishing peace in this community. But the Catholicos accepted the Patriarch only subject to some conditions which were unknown to the Patriarch. That acceptance did not also mention that the people and the priests were also accepted. Therefore that cannot be treated as a mutual acceptance. Even after 16-12-58 as regards administration of parish churches there were absolutely no difference and the

​—5—

​previous practices continued. Even if the Patriarch has accepted the Catholicos, that does not in any way affect the powers of Patriarch. It is not correct to say that the church in Malankara has to be administered under the Catholicos. There is no synod for the Metropolitans in Malankara. For establishing such a synod no permission was given by the Patriarch. Such a synod cannot operate without the permission of the Patriarch. This defendant along with some other Metropolitans and the Patriarch decided to end the dispute in the Malankara Sabha. The Patriarch for this purpose published an order accepting the Catholicos. There afterwards because of this desire for peace this defendant had

​10 co-operated with Catholicos for sometime. But this was done subject to the approval of the Patriarch. That was the understanding. But since the Catholicos tried to become an independent person by destroying the powers of Patriarch, and when this defendant knew about it, this defendant withdrew the co-operation that was being extended by this defendant to the Catholicos. The document of 22-12-58 mentioned in the plaint came into being on the above understanding. This defendant does not accept the allocation of Edavakas mentioned in the plaint. The allegation that the Synod made some recommendations for that purpose and for those recommendations of the synod this defendant was also a party is denied by this defendant. The allocation of edavakas can be done only by the

​20 Patriarch himself. Catholicos or the synod cannot make that allocation. There were some proposals for allocation of the Edavakas. That was subject to the approval of Patriarch. Those proposals were temporary. These were brought into being on the definite understanding that the previous arrangements for ruling the Edavakas will continue. But the Catholicos discarded these understandings. So the Patriarch gave an order to this defendant to continue to rule the edavakas which this defendant had been ruling, on 30-10-59. Because of that order the order of the Catholicos allotting edavakas fell through. The order of the Catholicos dated 25-2-59 is beyond his powers and it will become valid only if it gets the approval of the Patriarch. Whatever might have been mentioned

​30 in that order it was not accepted by the disputed church. On 4-5-60 a representative meeting of all the churches of the Kottayam Metropolitan Diocese was held and none among the people assembled there objected to the first defendant continuing to rule the Kottayam Metropolitan Diocese. Mar Grigorios and Mathews Mar Evanos have not at all exercised any powers as regards the disputed parish church. They never had any document authorising them to exercise powers as regards the disputed parish church. The Managing Committee mentioned in the plaint is only for administering the common properties belonging to the entire Sabha. The allegation that the first defendant is trying to establish an opposition group is denied by this defendant. The Catholicos has abs-

​40 olutely no power to take any action against this defendant. This matter has been made clear in the letters sent by this defendant to the Catholicos. Even if the constitution relied upon by the plaintiffs is accepted, the Catholicos cannot take any action against this defendant, without any complaint. The action taken against this defendant is against the natural justice. A report given by Mar Climic and Mar Grigorios were not considered when this action was taken. The alleged order sent by the Catholicos on 17-6-60 was not received in this church. The allegation that the Catholicos allowed this defendant to reside in Piramadam DIARA is wonderful. That DIARA belongs to the Patriarch and the Catholicos or the Malankara Sabha has not got any rights over it. The first defendant has

​50 got all the rights to do the things alleged in para 21 of the plaint. The first defendant had come to the disputed church on very many occasions and has taken part in sacred rites that are being performed there. The disputed church always welcomed the visit of the first defendant. None among the members of this parish church opposed it. The members of the disputed church are proud of the activities of the first defendant. The first defendant has got absolute rights to enter into any church believing in the faith of the Jacobite Syrian Christian as a Metropolitan so long as the trustees of that particular Parish Church did not object to it. The Civil Court has no jurisdiction to decide this suit. The plaintiffs are not members of the disputed parish church now. A suit like this

​60 cannot be brought without the permission of the General-Body of the disputed Parish Church. The plaintiffs have no representative capacity. The petition put in by them under Order 1 Rule 8 cannot be accepted. The plaintiffs are mere pawns in the hands of some people who are thirsting for power. Actually this suit is filed for the purpose of redressing some grievances of the Catholicos. The plaintiffs have no reason to file a suit to redress the grievances of Catholicos.

—6—

​The people have got a perfect right to bring any person they want and conduct sacred rites in this church. That cannot be prevented by an injunction. The court fee paid is not correct. Therefore this suit has to be dismissed with costs of the first defendant.

3. ​The defendants 4, 5, 6 and 7 have filed a written statement. They also raise the contentions seen in the written statement of the first defendant. They further contend that the plaintiffs are not members of the disputed parish Church as they have lost their membership. They say that there are 1500 members in this church and 1296 members out of them have filed affidavits against the plaintiffs and the plaintiffs cannot be therefore given any representative capacity to file the suit on behalf of the Church. According to them this suit is not maintainable without impleading the trustees. This suit is filed with the intention of harassing the people and the Priests who follow the Patriarch, taking advantage of the decision of the Supreme Court that the persons who accept the Catholicos are also inside the Jacobite Syrian Faith. This disputed Parish Church believes that the Jacobite Church was established by St. Peter at Antioch and the present Patriarch Ignatius Yakkoob III is the person ruling in the Throne of St. Peter at present. This Church uses only the Mooron consecrated by the Patriarch and follows only the metropolitans appointed by the Patriarch of Antioch. This parish church believes that Reziza has to be given to the Patriarch and this church has accepted as true the canon accepted by Patriarch, namely Ext P18 in 41 T. L. R. case. These things are mentioned in the constitution of this Church. They contend that without the permission of the members of this Parish Church the Metropolitans cannot enter this Parish Church. The administration and ownership of the parish churches are with the members of these churches. This Parish Church never acted as per the orders of the Catholicos and no order of the Catholicos binds this Parish Church, as the persons who accept the Catholicos and who accept the Patriarch are equally inside the Church. One person does not lose whatever rights he had if he accepts the Patriarch alone. The acceptance by Patriarch and the Catholicos was only regarding the common properties and that does not in any way affect the disputed parish church. The disputed church never accepted the constitution mentioned in the plaint. Even Catholicos or the Malankara Metropolitan cannot enter the disputed Parish Church without the permission of the members of this church. The synod of the Malankara Metran has absolutely no rights over the disputed parish church. The members of this parish church do not want anybody else except the 1st defendant to perform the duties of a Metropolitan in this parish church. Mar Grigoriose and Mar Evanios belonging to the Catholicos side never exercised any powers at any time in this church. The sixth defendant took part in a Managing Committee meeting; but that Managing Committee meeting was only for the purpose of administering the common properties. Simply because the 6th defendant took part in that meeting the Catholicos will not be getting any power over the disputed parish church. The disputed Parish Church or the Patriarch’s party never admitted to come under the Catholicos as is mentioned in the plaint. None among the members of this parish church have got any objections to the actions of the first defendant and the first defendant was living inside the church buildings even before this suit. The first defendant did not go out of the disputed parish church as is stated in the plaint. The plaintiffs have absolutely no cause of action against these defendants. The plaintiffs will not be in any way damaged even if the first defendant comes to the Church and exercises the functions as a Metropolitan. The Church buildings and the properties of the church are not in the possession of the plaintiffs. Therefore the plaintiffs are not entitled to the injunction prayed for. If the Trustees allow the first defendant can enter this parish church and perform sacred rites. Therefore these defendants also say that the suit will have to be dismissed with their costs They have all the other contentious which the first defendant has raised in his written statement.

4. ​The defendants 2 and 3 filed a statement on 2-10-60 saying that they accept all the contentions of defendants 4, 5, 6 and 7 and their written statement may be treated as the written statement of these defendants also.

5. ​The plaintiffs have filed a replication. They denied the allegation that they have caused to become members of the disputed church. It is stated that this court cannot decide that contention raised by the defendants. It is stated

8

​—0—

​per the order of the Catholicos dated 25-2-59 did not even come to the disputed parish church they have got powers. For getting these powers they do not want any acceptance from the members of the disputed church. The allegation that the managing committee is concerned only with the administration of common properties is denied by the plaintiffs. They say that the Managing Committee is concerned as regards the administration of the parish churches and the disputed parish church which had sent representatives to that Managing Committee cannot dispute those powers. The Catholicos gets powers over the disputed parish church because of the Supreme Court Decision and to get those powers the Catholicos does not need any acceptance from the members of the disputed church. The allegation that the action taken against the first defendant was without any bonafides is not correct according to the plaintiffs. The first defendant was inside the disputed church only before the suit was filed. The first defendant is not entitled to live in the rooms attached to the disputed church. The allegation that the Malankara Metropolitan gets power because of the appointment by the Patriarch is denied by the plaintiffs. It is stated that the Malankara Metropolitan gets power because of election by the Association. It is not correct to say that the Supreme Court case was only as regards the common properties. After the establishment of the Catholicate the Patriarch had no power to appoint Metropolitans for Malankara. It is not correct to say that the Patriarch accepted the Catholicos only in the manner stated by the first defendant. The first defendant had joined the synod and has also tendered his advice to the synod. Therefore the first defendant cannot raise any contentions against that now. There was no understandings as stated in the written statement of the first defendant. The allegation that first defendant participated in the activities of the synod and the activities that happened after the allotment of Edavakas due to such an understanding is not correct. It is not correct to say that the allotment of the edavakas and the first defendant's participation in all these things was subject to the approval of the Patriarch. It is not correct to say that the Patriarch refused to accept the allotment of edavakas. The document from Patriarch dated 13-10-59 is not true and valid. There was no General Body Meeting of the Metropolitan Dioceses on 4-5-60 as alleged by the first defendant. The first defendant had absolutely no authority to call for such a meeting. It was called only for the purpose of creating a party under the leadership of the first defendant after the first defendant was found guilty by the committee appointed to go into the activities of the first defendant. It is understood that the first defendant has created some records with helpers after that and those records are not acceptable. Actions taken against the first defendant are valid and binding upon the first defendant. The rules of natural justice were correctly followed before that action was taken. It is not correct to say that the report of Mar Climis and Mar Grigorios were not taken into consideration before action against the first defendant was taken. The first defendant and those metropolitans were not prepared to help the synod in its deliberations as regards this. Even though notices were sent on various occasions the first defendant deliberately kept away from the synod. The allegation that the order of the Catholicos dated 17-6-60 was not received in the plaint church is not correct. That order was published. The first defendant himself has received that order. That order binds the disputed parish church also. The first defendant is not entitled to enter the disputed parish church after 25-2-59 and in any event after 17-6-60. Therefore it is stated that the suit will have to be decreed with costs.

6. ​The following issues were framed in this suit:—

1. ​Has the civil court jurisdiction to try this suit?

2. ​Have the plaintiffs any cause of action in their individual capacity to bring the suit? Are the plaintiffs competent to represent the parishioners of the plaint church?

3. ​Is the suit bad for non-joinder of parties?

4. ​Have the plaintiffs ceased to be members of the plaint Church? Is the civil court competent to go into this question?

5. ​(a) Is the Malankara Church subject to the administration and jurisdiction of the Malankara Metropolitan? (b) Whether the Diocese Metropolitans administer the Dioceses under him?

9

​(c) Has the Malankara Metropolitan or the Diocesan Metropolitan appointed by the Catholicos ever exercised any authority over the plaint church?

(d) Whether the plaint church has been accepting and following Metropolitans ordained only by the Patriarch of Antioch?

(e) Is it necessary for the Bishops duly appointed for a Diocese to be accepted by each parish in order to get jurisdiction to administer the church?

10

6. ​(a) Does plaint church as well as the other individual churches in Malankara form distinct trusts as distinct from the common Jacobite Church? (b) Does the administration of the plaint church vest in the parishioners and trustees appointed by them?

7. ​(a) Has the Catholicos jurisdiction over this plaint church? (b) Has the plaint church accepted the constitution passed at the meeting held on 11-5-110? Was that body competent to frame a constitution for any individual church?

8. ​Whether the provisions of the constitution of the plaint church produced by the defendants are invalid for any reason as contended by the plaintiffs?

9. ​How did the Bishops of a Diocese get jurisdiction to administer individual churches?

10. ​Whether the Catholicos has no jurisdiction over 1st defendant on the plaint church?

11. ​(a) Did the division in the Malankara Church end on 16-12-58 by the Patriarch and the Catholicos accepting each other? (b) Is the acceptance incomplete or ineffective for any reason? (c) Whether the acceptance is binding on the plaint church? (d) Does the acceptance, if true, affect the pre-existing rights, if any, of the plaint church and the parishioners?

12. ​Has 1st defendant withdrawn from the Union effected on 16-12-58? Is he competent to do so? What is the effect of such withdrawal?

13. ​Who is the authority competent to allot Edavakas to Metropolitans? Is the allotment by the Catholicos dated 25-2-59 valid? Is the Catholicos or the synod competent to alter, transfer or re-allot Edavakas to Metropolitans appointed by the Patriarch?

14. ​(a) Whether 1st defendant was administering the plaint church in disregard of the Kalpana of 25-2-1959? (b) Are the said acts, if true, valid or binding on the plaintiffs and the plaint church? (c) Is the re-allotment of Dioceses by the Kalpana of 25-2-59 invalidated by the Kalpana of the Patriarch to 1st defendant? (d) Is there any such kalpana as is contended by the defence? (e) Is the Patriarch competent to issue any such Kalpana?

15. ​(a) Whether the interdict dated 17-6-60 issued by the Catholicos valid? (b) Is the 1st defendant bound by the interdict? (c) Does the interdict offend the natural justice?

16. ​Are not the defendants estopped from contending:— (a) That the Catholicate is invalid or that the Catholicos has no jurisdiction over the plaint church or 1st defendant? (b) That there is no valid Episcopal Synod in the Malankara Church? (c) That the Malankara Church was not re-united on 16-12-58? (d) That the re-allotment of Dioceses on 25-2-59 is invalid or in-effective? (e) That the Catholicos or the Synod has no jurisdiction to take disciplinary action against 1st defendant?

10

17. ​Are any contentions of the defendants barred by res judicata by virtue of the decisions in S. A. 5/1061, S. A. 7/1076, 45 T. L. R. 116 and 1958 K. L. T. 721?

18. ​Are not both groups, viz., the Patriarchs Party and the Catholicos party entitled to rights and privileges in the Jacobite Church under the ruling in 1958 K. L. T. 721?

19. ​(a) Has 1st defendant jurisdiction over the plaint church by virtue of the appointment by the Patriarch as Edavaka Metropolitan of Kandanad Diocese and subsequently of Kottayam? (b) Is 1st defendant competent to repudiate the authority of the Catholicos and continue his adherence to the Patriarch by virtue of any Order of the Patriarch?

20. ​Can the orders issued by the Catholicos affect the rights of 1st defendant or the rights of the plaint church?

21. ​Has the Diocesan Metropolitan only visitatorial powers in this church? Has he any authority over the administration of the plaint church?

22. ​Are plaintiffs entitled to the injunction as prayed for?

23. ​To what reliefs are plaintiffs entitled?

24. ​What is the order as to costs?

​O. S. 35/61:- The suit is for a permanent injunction to restrain the defendants from preventing the plaintiffs from taking part in the General Body Meetings of the Manarcad Parish Church members and also from voting in that meeting. The plaintiffs also pray for an injunction asking the defendants 1 to 6 to perform the spiritual needs of the plaintiffs from the Manarcad Martha Mariam Church. The allegations in the plaint are as follows:— The plaintiffs are members of the Manarcad Martha Mariam Jacobite Syrian Church. The defendants are also members of that parish church and the defendants 1 to 6 are the priests in that parish Church. It is stated that the plaintiffs 1 to 5 have filed O. S. 315/60 in this court and that suit is pending. The plaintiffs 6 and 7 support the plaintiffs 1 to 5 in that suit. Because of that suit the defendants are not on good terms with the plaintiffs. It is stated that the defendants are using their influence, and have created an opposition group to the plaintiffs in this parish church. The plaintiffs understand that the defendants have decided not to cater to any of the spiritual needs of the plaintiffs from this church. The plaintiffs understand that the defendants have created various documents to remove the plaintiffs from the membership of the above parish church. They are proclaiming that the plaintiffs have been removed from the membership of this parish church by the General Body Meeting. That decision itself is against the provisions of the constitution which they themselves rely upon in O. S. 315/60. As per Rule 43 of that Constitution as regards faith and discipline the General Body of the Church cannot take any action. That resolution was passed by keeping away the supporters of the plaintiffs by intimidation. It is stated that there is dispute regarding the membership of the plaintiffs in this parish church and that matter is now subjudice. Therefore it is stated that the membership of the plaintiffs in the plaint mentioned Church has not in any way been affected. The 4th plaintiff’s wife died on 10th October 1960. The defendants created obstruction for her burial and funeral obsequies. That caused some disputes between plaintiffs and the defendants. The plaintiffs say that the defendants 1 to 6 are bound as per Faith and Practices of the Church in which they are members to conduct the spiritual ceremonies of the plaintiffs also. There was a ceremony for the purification of the first plaintiff’s house. That was fixed for 31st December 1960. It had to be conducted by the 6th defendant who was the priest in charge of this parish church on that day. If he was not able to conduct it, defendants 1 to 5 ought to have conducted it. The first plaintiff had invited about 100 families to take part in that ceremony. But as the 6th defendant refused to do it, as according to the 6th defendant there was a ban by the first defendant. The first defendant refused to remove the alleged ban. The defendants 2 to 5 also did not conduct it. The first plaintiff then had to approach Mathews Mar Ivanios the metropolitan of Kottayam Metropolitan Edavaka and he sent a priest to conduct the ceremony. As the defendants 1 to 6 did not conduct that ceremony the first plaintiff and the people who were gathered at his house for that ceremony were put to much difficulties and damages.

​-11-

​The plaintiffs apprehend that there will be much disputes as regards funerals that may have to be conducted for the peoples siding with the plaintiffs. The defendants 7 and 8 are actively assisting the opposition group against the plaintiffs. The defendants are now saying that such steps will be taken against all the persons who were assisting the plaintiffs in O. S. 315/60. They are taking steps to obstruct the plaintiffs and their supporters from taking part in the General Body Meeting of this Church and also in the Committee Meetings. If those activities of the defendants are not restrained the plaintiffs and their supporters will be put to irreparable loss. The plaintiffs pray that the defendants may be permitted to be sued as the representatives of the group against the plaintiffs and the plaintiffs may be permitted to sue as representatives of the group against the defendants. Therefore the plaintiffs pray for the injunction already mentioned by me.

7. ​The defendants have filed a written statement. They say that the suit is not maintainable. It is stated that the plaintiffs have no right to file this suit as members of the edavaka. The membership of plaintiffs 1 to 5 have been lost. There is a constitution for the plaint parish church and as per that constitution the plaint church is for the use of persons accepting the Patriarch of Antioch as the Supreme Head of the entire church and are also accepting the Metropolitans appointed by that Patriarch. Those people who are not accepting this are not entitled to the membership of this parish church as per rule 1 of the Constitution of this parish church. The plaintiffs are not accepting that and hence they have lost the membership in this church automatically. It is not correct to say that plaintiffs 6 and 7 are supporting the plaintiffs in O. S. 315/60. The facts of O. S. 315/60 is not as stated by the plaintiffs. The defendants have no enmity towards the plaintiffs or people who support them. The defendants are not taking any action against the plaintiffs. Since the plaintiffs have lost their membership in this parish church they are not entitled to get their spiritual needs performed in this church or performed by the priests of this parish church. The defendants say that the resolution passed by the General Body of this parish church is valid and it is not by that resolution that the plaintiffs have lost membership in this church. According to them the plaintiffs have lost the membership in this church automatically because of their actions. The General Body Meeting which passed the resolution was validly held. The alleged intimidation mentioned in the plaint is denied by these defendants. It is stated even though the plaintiffs were not entitled to it the burial of the 4th defendant's wife was done from this church. The allegation in the para 9 of the plaint is denied by these defendants. According to them the plaintiffs never used to conduct purification ceremony in their houses. As the defendants were afraid that the priests will be taken to the houses of the plaintiffs and will be molested from there, they did not go to the plaintiff's house. It is only for the purpose of thus molesting the defendants that the plaintiffs are creating the occasions like purification ceremonies in their houses. The first plaintiff did not invite the priests for purification ceremony in his house as alleged in the plaint. Mar Evanios mentioned in the plaint has absolutely no right over the plaint Parish Church. The plaintiffs are not entitled to get their spiritual needs done in this Church by priests of this church. There are no persons among the members of this church who are supporting the plaintiffs. Only some persons employed in the office of the Catholicos are supporting the plaintiffs. The plaintiffs are getting help and money for this suit from the Catholicos office. The plaintiffs are not entitled to the injunction prayed for. The plaintiffs are not entitled to sue the defendants in a representative capacity. They are not representing anybody among the members of this church. This suit is not maintainable as even Trustees of the plaint church are not made parties here. Therefore it is prayed that the suit may be dismissed with costs.

8. ​The following issues were framed in this suit:-

1. ​Are the plaintiffs competent to sue?

2. ​Have the plaintiffs lost their status as parishioners of the plaint church on account of the reasons mentioned in the written statement?

3. ​Are the plaintiffs entitled to get their religious services conducted by the priest of the plaint church?

12

4. ​Are the resolutions removing the plaintiffs from membership of the Parish and alleged to have been passed in the Edavakayogam valid, and binding? Are they not ultra vires and against the constitution relied on by the defendants? Was the matter involved in the resolutions subjudice?

5. ​Have the priest of the Parish (defendants 1 to 6) refused to conduct the religious ceremonies of the plaintiff as alleged in the plaint?

6. ​Have the plaintiffs, and their partisans the right to use the church, and its cemetery, to take part in the administration and management of the church, to exercise their franchise in meetings and committees concerned, and to become office-bearers?

7. ​Can priest other than defendants 1 to 6 to be deputed to conduct the services and attend to the spiritual needs of the plaintiffs and their partisans?

8. ​To what reliefs are the plaintiffs entitled?

9. ​Order as to costs?

​9. ISSUE 22 in O. S. 315/60: In this suit namely O. S. 315/60 and in the connected suit the parties are the same. The matter in dispute also arises because of an interdict by the Catholicos at Kottayam against the first defendant in O. S. 315/60. Therefore the court had ordered joint trial of these suits and evidence was recorded and documents were marked in O. S. 315/60.

​10. O. S. 315/60 is for a permanent injunction to restrain the first defendant from entering the plaint church and taking part in sacred ceremonies in that church as according to the plaintiff he has been prevented from doing all those things by an interdict by the Catholicos at Kottayam whom the plaintiffs acknowledge as the head of their faith. The first defendant who is a Metropolitan contends that the Catholicos had absolutely no authority to interdict him in the manner stated by the plaintiffs and he is a Metropolitan under the Patriarch of Antioch who has appointed him to the Kottayam Metropolitan Diocese and as such he says that he can at any time enter the disputed parish church namely the Manarcad Martha Mariam Church which is in the Kottayam Metropolitan Diocese and which follows the Patriarch of Antioch if Trustees of that Church permit him. When this suit was filed by the plaintiffs, it is stated, that the defendants 2 to 7 in O. S. 315/60 who are the priests of this Manarcad Church along with some others started to take some retaliatory action against the plaintiffs and that according to the plaintiffs was the reason why they themselves filed along with 2 others O. S. 35/61. In that suit the plaintiffs pray for a mandatory injunction for asking the defendants therein to cater all their spiritual needs from the disputed church and for a permanent injunction to restrain them from preventing the plaintiffs from taking part in the General-Body meetings of the Manarcad parish church and voting in those meetings. In that suit the defendants contend that the plaintiffs have ceased to become the members of the Manarcad parish church as they are opposing the authority of Patriarch of Antioch and also the first defendant, who is the metropolitan appointed by the Patriarch of Antioch.

​11. These suits were very hotly contested. The oral evidence by both sides in this matter goes to more than 1000 foolscap pages. The documents marked by both sides come to 174. Much time of this court was also taken for hearing the arguments in these suits. By the time the arguments were over it is stated that the Patriarch of Antioch came to Kottayam and consecrated a new Catholicos, as the Catholicos who was ruling at the time when this suit was filed died subsequently. It is now stated by the defendants that the arrival of the Patriarch of Antioch at Kottayam a few weeks back as has brought peace to this entire Sabha and disputes that were in this Sabha for last about 50 years are all now over. The first defendant has therefore filed a statement in this court on 9-6-64 giving a copy of that statement to the plaintiffs in which the first defendant has stated that he has no intention whatsoever to enter the plaint church as a metropolitan and take part in the sacred ceremonies in that church in the capacity of a Metropolitan. Since O. S. 315/60 is only for an injunction to prevent the first defendant from entering the plaint church in the capacity of a Metropolitan

13

image:

​-13-

​and conducting or taking part in ceremonies therefrom in his capacity as a Metropolitan, this statement of the first defendant ought to have been the end of the suit. It is important in this respect that the defendants 2 to 7 in O. S. 315/60 were impleaded only on the contention that they are helping the first defendant in the alleged admitted entry into the plaint disputed church. Therefore the statement by the first defendant that he has no intention to enter the plaint church at all in the capacity of a Metropolitan ought to have taken away cause of action if any against the defendants 2 to 7 in O. S. 315/60 also. But even after the statement by the first defendant in O. S. 315/60 the arguments in this case continued with unabated fury. It seemed as if the plaintiffs wanted an injunction against the first defendant and the other defendant even though the first defendant expressed in unequivocal terms his intention not to enter the plaint church in the capacity of a Metropolitan and take part in functions that are being conducted there in that capacity. All through 9-6-64 the date on which the statement was filed and on 10-6-64 the subsequent date the arguments continued even though the plaintiffs in O. S. 315/60 was aware of this statement by the first defendant. Even though notice regarding the statement of the 1st defendant was given to the plaintiff's counsel at about 2-15 P. M. (as per his endorsement) the fact that such statement was being filed was mentioned by the 1st defendant's counsel at about 11 A. M. itself from open court in the presence of the plaintiff's counsel. After taking the valuable time of the court with the arguments even after the above statement by the first defendant, in the end of his arguments the learned counsel for the plaintiff stated that if defendants 2 to 7 also give up all their contentions, he is prepared to withdraw the suit. This was stated by the learned counsel for the plaintiff only after the defendants finished the argument and the learned counsel for the plaintiff himself finished the reply argument. The defendants 2 to 7 did not say anything then. On 10-6-64 itself the first plaintiff seems to have filed a statement in court office about this. But it is important that the fact that such a statement was filed in court was mentioned by the counsel for the plaintiff only after the entire arguments were over. Probably that was intended only as a stand-by. It is seen that the copy of that statement was given to the other side only on 11-6-64, the date after judgment was reserved in this case by the court. On 12-6-64 a statement was filed by the plaintiffs 2 to 5 that they also adopt the statement of the first plaintiff dated 10-6-64. In spite of all these, in view of the statement by the plaintiffs dated 10-6-64 and 12-6-64 the question whether the plaintiffs will be entitled to an injunction has to be considered by the court now.

12. ​O. S. 315/60 as I have already stated is only for an injunction against the first defendant to restrain him from entering the plaint church in the capacity of a Metropolitan and taking part from religious ceremonies that are being conducted therein in his capacity as a Metropolitan. The other defendants are impleaded only to prevent them from helping the first defendant in the alleged attempt of the 1st defendant to trespass. Therefore in view of the statement filed by the first defendant on 9-6-64, saying that he has absolutely no intention to enter the plaint church in the capacity of a Metropolitan, normally, there is absolutely no basis for further continuation of this suit. The court has only to accept the undertaking by the first defendant and has only to dismiss the suit as that undertaking is accepted. But the plaintiffs were not prepared for such a course. That being so, this suit has to be disposed of by this court on merits. The learned counsel for the first defendant relied upon a decision reported in 1957 Calcutta page 709 at page 720 in which it is stated by Their Lordships that an injunction can be given only if the plaintiffs are entitled to it. He relied upon this decision only to show that simply because the first defendant has filed a statement now saying that he has no intention to enter the disputed church as a metropolitan, the injunction prayed for by the plaintiffs cannot be passed against him in this suit. He was afraid that the plaintiffs will argue that since the first defendant has no intention to enter the plaint church in the manner apprehended by the plaintiffs, the first defendant will not be damnified if an injunction as prayed for by the plaintiffs is also issued against the first defendant. The learned counsel for the first defendant stated that there is no scope for such an argument. According to him in view of the statement by the first defendant dated 9-6-64 the court has only to dismiss the suit accepting his undertaking

13 On the aspect of the case the learned councel fo plentiff did notall argueHe went on arguing with the…………

14

—14—

​end that if O. S. 315/60 is dismissed without entering into a finding as regards the membership of the plaintiffs in the disputed church be apprehended that the defendants will create further trouble to the plaintiffs by saying that the plaintiffs have ceased to be the members of the disputed church. He stated since some findings as regards this question, that was raised by the defendants was necessary, he has no other go but to continue to press this suit.

14. ​Even if that was the apprehension of the learned counsel for the plaintiff, O. S. 315/60 will have to be dismissed in view of the statement by the first defendant as there is no basis for continuing this suit. The other points 10 raised by the defendants about which the plaintiffs are eager to have a finding have yet to be considered in O. S. 35/61. In that suit there are issues which directly deal with the question whether the plaintiffs have ceased to be the members of the Manarcad Parish Church and whether the plaintiffs are entitled to get their spiritual needs catered by the priests of the Manarcad Church from that church itself.

15. ​The plaintiffs are not entitled to the injunction for another reason also. The disputed church is a public religious trust, according to the plaintiffs. Ext. D6 marked in this case shows that the plaintiffs themselves have filed a petition before the Advocate-General as regards this church which according to 20 them is a public religious trust. The PW. 3 the first plaintiff speaks about this on page 41 of his deposition. There he says that a petition was filed by him before the Advocate-General for filing a suit against the trustees of the disputed church. But that petition was not allowed as the form in which that petition was filed was not correct. On page 114 of his deposition the PW. 3 says that the properties are acquired for the disputed church in the names of the trustees. In para 7 of the replication the plaintiffs say that the trustees of the church have no right to file suits in their capacity as trustees. It is stated therein that these trustees are on the side of the first defendant and they are against the real interest of this church. But what we want to understand now is that even according to 30 the plaintiff this church has got a set of trustees and this is a public religious trust. That was the reason why the first plaintiff and some others filed a petition before the Advocate-General for permission to file a suit against the trustees conclusively shows that this was the plaintiff's case before. PW. 1 the Secretary of the Malankara Syrian Christian Association says in his evidence on page 137 that the individual parish churches of Malankara Jacobite Syrians have got separate properties of their own. As regards those properties separate trustees are elected for each church. Even though he wanted to state that there are instances for property being acquired in the name of the metropolitan of the dioceses he was not able to state any such instances. From the case before me it is clear that there is a separate General Body meeting for this disputed parish church and separate trustees are elected from the members of this disputed church. In fact in O. S. 35/61 the plaintiffs pray to safeguard their right to attend that general body meeting and vote there. It is clear from the evidence of the PWs. 1 and 3 that only the members of this disputed church have got rights over the properties of this disputed parish church. The members of other parish churches in Malankara have not got any right over these separate properties of the disputed parish church. Exts. D25 to D29 marked in this case show that acquisition of the properties for this parish church was always in the name of the trustees. Ext. D30 shows that the trustees were incurring debts by mortgage on behalf of this church. The fact that the separate parish churches can have separate properties and separate trustees can be seen even from Ext. P20, the constitution of the entire sabha which is relied upon by the plaintiffs. Clauses 32 and 39 therein show that there will be a kaikaran for every edavka church. From Ext. D4 it is seen that this particular church is having such trustees and the functions and the powers of those trustees are mentioned in clauses 66 and 68 of Ext. D4. In clause 68 these functions are clearly stated. It is seen that the defendants have contended that the trustees are in possession of these properties and the defendants are not in possession. Such a contention can be seen in para 6 and para 44 of the written statement of defendants 4 to 7. As against this contention even though the plaintiffs have filed a replication they have not stated that the trustees are not in possession. What they have stated can be seen from para 7 of the replication. Therein they say that the trustees are siding with the first defendant and they are acting against the interest of the church. Anyhow there is a single sentence in Para 39 of the replication were they say that Para 44 of the written statement is denied. But such a denial by just one sentence saying that that another Para is denied is vague and is not a denial as contemplated in law. If a particular fact is averred by one party, the party denying that allegation has to mention that particular fact and specifically deny it. No such denial of the allegations in para 44 of the written statement of defendants 4 to 7 are seen in the replication filed by the plaintiffs. The trustees were acquiring properties in the name of this church and they were also incurring debts for this church. So there is no point in the contention that the property is not vested with the trustees. Even though the trustees are being elected every year that does not mean the property cannot vest in the trustees as the office is only for a short period. It is only the individuals that may change; but office of the trustees continues for ever. Even though some different individual may be holding office of the trustees there is no break as far as trusteeship itself is concerned. The individuals may come and go; but trustees go on for ever. Therefore there is no difficulty in vesting the property in the trustees even though the individuals who to be the trustees are elected only for one year at a stretch. There is no force in the contention of the learned counsel for the plaintiff that the property is vested in the Pothuyogam or the General Body. 

16. 
    

17. The church and its properties are vested in the trustees and that is made absolutely clear by Ext. D4, P20, oral evidence given in this case and also Exts. D24 to D30.

17. ​The case of the defendants that the suit is essentially to prevent a trespass by the first defendant is also correct. That is clear from the allegations in Para 27 of the plaint about which I have already made a reference. That being so, in my opinion the decision reported in 1925 P. C. page 298 applies in this case. Here the plaintiffs are only some of the beneficiaries in the disputed church which is a public religious trust and as such they cannot be themselves maintain a suit against the first defendant and the other defendant for preventing trespass by the first defendant. The contention that the properties vest in the plaintiffs also and plaintiffs are in possession of the properties is not at all correct. That being so, the plaintiffs are not entitled to get this injunction prayed for by them in this suit in view of the decision reported in 1925 A. I. R. P. C. 298.

18. 
    

This is a transcription of the legal document provided in the image. It appears to be page 17 of a judicial judgment regarding a civil suit (O. S. 315/60).

## Judgment Transcript: Page 17

 18. Therefore even apart from the statement of the first defendant dated 9-6-64 I find that the plaintiffs will not be entitled to get the injunction prayed for by them, in this case in view of the foregoing discussions. Therefore I find under this issue that the plaintiffs are not entitled to the injunction prayed for.

 19. **ISSUE I in O. S. 315/60:** According to the defendants the civil court has no jurisdiction to try this suit. They say that under section 9 of the C. P. C. civil court has got jurisdiction to try only disputes of civil nature. According to the defendants in this case no civil right is in dispute. It is stated that if the first defendant performs religious ceremonies in this church after entering this church no civil rights of the plaintiffs will be affected. According to the defendants, even if the plaintiffs' case is true, the first defendants act in entering this church and taking part in religious ceremonies therein will only mean an act of insubordination against an order passed by the Catholicos. If any person is aggrieved because of that, it is stated, that it will be the Catholicos himself. Such an act by the first defendant, if at all the plaintiff's case is true, will not affect any of the civil rights of the plaintiffs according to defendants. In this connection the learned counsel for the defendants point out page 90 of the deposition by the PW. 3. PW. 3 is the first plaintiff himself. He was asked what is the damages that the plaintiffs will suffer if the first defendant disobeys the interdict and enters the plaint church and takes part in the ceremonies conducted therefrom. His answer was as follows:— **"മേല്പട്ടക്കാരുടെ അനുവാദം കൂടാതെ മാനസാന്തരം വരാതെ ചെയ്യുന്ന പ്രവൃത്തികൾ സഭാപരമായ തെറ്റാണല്ലോ. ഈ വക കാര്യങ്ങൾ സഭയുടെ സിവിൽ കാര്യങ്ങളെ ഒരു തരത്തിലും ബാധിക്കുകയില്ല."** The learned counsel for the defendants stated that this shows that only some spiritual damages will be caused to the plaintiffs even if the interdict is disobeyed by the first defendant, even according to the plaintiffs. Therefore according to the defendants the section 9 of the C. P. C. will bar this suit and the Civil Court has no jurisdiction.

 20. The learned counsel for the plaintiffs stated that this contention has absolutely no force at all. He would say that even in the prior litigation which is referred in this case, namely the case which ended with the judgment of the Supreme Court, a contention was taken that civil court has no jurisdiction to try that case. The court has found that contention to be not correct. The same contention is raised in this suit by the defendants and it has no force at all. He would say that in the prayer portion of the plaint an injunction is sought for restraining the first defendant from taking any money from the plaint church also. Therefore according to him not only spiritual loss; but some financial loss is envisaged by the plaintiffs if first defendant disobeys the interdict and therefore the civil court has got jurisdiction to try this case.

 21. The contention of the learned counsel for the plaintiff that in the case which ended with the Supreme Court Judgment also there was a contention that the civil court has no jurisdiction to try that case and that contention was found against and therefore such a contention has no force in this case also is not at all correct. The plaintiffs from the beginning was making a fundamental mistake in equating this case with the case which ended with Supreme Court Judgment. In that case the main dispute was regarding election of an office and as such the civil court certainly had jurisdiction to decide it. In this case, as can be seen from the evidence of PW. 3 pointed out by the learned counsel for the defendants, and also from the prayer in the plaint, it is clear that if the first defendant disobeys the interdict no civil rights of the plaintiffs will be affected. The first plaintiff as PW. 3 in the witness box was able to say only that there will be a spiritual loss to the plaintiffs if the first defendant disobeys the interdict. The learned counsel for the plaintiff stated that an injunction is sought for preventing taking of money from this church by the first defendant and therefore a civil right is also involved in this case. But if we can refer to the body of the plaint no mention is ever made therein that the first defendant is attempting to withdraw money from this church or any of the defendants are going to give money to him from this church. Even in the oral evidence given by the plaintiff's witnesses and plaintiff's no mention is made that they apprehended that the disputed church people will be giving amounts to the first defendant and that has to be prevented. It is not stated anywhere in the plaint, replication or in the oral evidence by plaintiffs and witnesses that the first defendant is attempting to take away money from the disputed church and that has to be prevented. Secondly it is clear from...

the array of the parties in this case that no person among the defendants will be able to give amounts belonging to the disputed parish church to the first defendant. None of the trustees are impleaded in this suit; and it is not averred anywhere in the plaint, that some of the defendants are attempting to give away some funds from the disputed church to the first defendant. It is not averred anywhere that the first defendant is trying to take away funds of the disputed parish church through the defendants. Therefore, the alleged dispute regarding the funds of the disputed church does not at all arise in this suit. From the evidence and also from the plaint and the replication we can see that the plaintiff's grievance centres around the spiritual loss that the plaintiff will suffer if the first defendant disobeys the interdict. Unless the first defendant's action amounts to a sacrilege a third party to the interdict will not be able to question it, in a civil court. Here there is nothing to show that even if the first defendant disobeys the interdict that will amount to a sacrilege. Therefore the alleged spiritual loss which the plaintiffs will have if the first defendant disobeys the interdict cannot be made a subject matter for a civil suit. Therefore I find under this issue that the civil court has not got any jurisdiction to try this suit.

23. ​ISSUE 2 in O. S. 315/60: Along with the plaint the plaintiffs filed a petition under Order 1 Rule 8 for permission to sue in a representative capacity. That is C. M. P. 2101/62. No notice was even ordered there. The court straightaway granted it without notice. What I want to say is that the order of granting that petition was made without even ordering notice to defendants. The defendants had no notice of such a petition at all. It is not as if the defendants were given notice then and after notice an exparte order was made. There was no order at all for issue of notice there. The defendants knew about the claim made by the plaintiffs under Order 1 Rule 8 only from the plaint. Hence they have raised this issue. The publication effected by plaintiffs also calls only for objections against representative capacity being given to plaintiffs. So that matter remains to be decided. It has now to be decided whether the plaintiffs can be permitted to sue in a representative capacity or not. According to the plaintiffs the question whether the plaintiffs are in a minority or in a majority does not at all matter as far as this is concerned. The learned counsel for plaintiff relied upon the decision reported in 1957 K. L. T. page 132, 1948 Madras page 558, 1921 Madras page 682 and 1925 Madras page 835. According to him the plaintiffs must be given permission to file the suit in a representative capacity.

24. ​According to the defendants, there are 1500 members who can exercise votes as members of this parish church. Out of these 1500, 1296 members have filed affidavits before this court saying that the action of the plaintiffs in filing this suit is against the interest of this parish church and the plaintiffs do not at all represent them. They point out that even the PW. 3 the first plaintiff says that for this suit he has contacted only about 14 persons. The learned counsel for the defendant says that even if the contention that 14 persons support the plaintiffs is true, a vast majority of the people, which according to him comes to 99 per cent of this parish church, oppose the plaintiffs and therefore the plaintiffs cannot be given any representative capacity to represent this church and prosecute this suit. Therefore he says that the plaintiffs are not competent to represent the parishioners of the plaint church. He further says that only the trustees can represent the plaint church in litigation and that is mentioned in Ext. D4 constitution.

25. ​I have first to answer the first part of this issue. I have already mentioned in Issue No. 1 that the civil court has no jurisdiction to try this suit. That means that the plaintiffs have not got a cause of action to bring the suit in a civil court against the defendants. If the plaintiffs were having a cause of action against the defendants in a civil court I need not say that the civil court certainly would be having jurisdiction to try this case. The absence of jurisdiction on the part of the civil court shows that the plaintiffs have no cause of action against the defendants to file a suit in a civil court. That being so on the first part of this issue I find that the plaintiffs are not having any cause of action in their individual capacity to bring this suit.

26. ​The other question that is raised in this issue is whether the plaintiffs are competent to represent the parishioners of the plaint church. The learned..

counsel for the plaintiffs contends that even if the plaintiffs are in a minority, still for the purpose of this suit, they have to be given a representation capacity. The learned counsel for the defendants contend that here a vast majority, that is nearly 99 per cent of the members of the disputed church are against the plaintiffs and therefore in this particular case it cannot be stated that the plaintiffs can be given authority to represent the disputed church in a civil litigation. DW. 3, the 4th defendant, who is examined mentions about the total members of the church and also the affidavits obtained from 1296 members of that church. So, actually this is not a case like the cases relied upon by the learned counsel for the plaintiffs. Whatever may be the position if the Jacobite Syrian Christian Sabha as a whole is taken in Malankara, as far as the disputed parish church is concerned, the plaintiffs can represent only themselves and nobody else. That being so, the plaintiffs cannot be given a representative capacity to represent the parishioners of this church in this suit. Therefore I find under the latter part of the issue No. 2 that the plaintiffs cannot be given a representative capacity under Order 1 Rule 8 to represent the parishioners of this church in the present litigation, namely O.S. 315/60.

​27. ISSUE 6 in O. S. 315/60: According to the defendants the plaint church as well as the other individual parish churches in Malankara forms distinct and separate trusts, distinct from the common Jacobite Syrian Christian church which I shall hereafter mention the Sabha, to distinguish it from these individual parish churches. The defendants point out that the majority of the averments in the plaint are about the Sabha and the disputes in this sabha as regards some common properties which the sabha was having. It has absolutely no relevancy according to the defendants, as regards the plaint parish church which is a distinct entity. The defendants point out that the plaintiffs were not at all seeking to represent that sabha but they were only seeking to represent the edavaka of this parish church. So according to the defendants first of all the scope of the present suit is very limited. According to the defendants we must not confuse this aspect of the suit which is only regarding one parish church with the suit which ended in the Supreme Court which essentially was as regards common properties which the Jacobite Syrian Christian Sabha was having in Malankara. According to the defendants this Jacobite Syrian Christian Sabha is having common properties belonging to the entire sabha. This sabha is divided into different dioceses under Metropolitans. Each Metropolitan-diocese is having common properties belonging to that metropolitan diocese alone. That is the second type of common properties which these christians are having. Apart from the common properties belonging to the entire sabha and the common properties belonging to the entire Metropolitan dioceses there are properties distinct and separate belonging to each parish diocese. The disputed parish church according to the defendants is a separate trust belonging to the parishioners of the disputed church. The parishioners of the other parish churches in Malankara are not having any rights whatsoever over the properties of the disputed parish church according to the defendants. The defendants say that the disputed church is a separate and distinct trust. The defendants point out that even as per the allegations in the plaint the disputed church was established in very ancient times. In the evidence it was stated that it may be nearly 1000 years old. Therefore, according to the defendants it came into existence with the funds of parishioners of this church long long before the Malankara Christian Association and Managing Committee of the Association itself came into existence in 1876. They would say that this association or the Managing Committee can get authority over the disputed parish church only if the parishioners have surrendered their rights to that Managing Committee or that Association at any time after that association or Managing Committee came into existence. According to the defendants the administration of the plaint parish church therefore vests in the Parishioners and trustees appointed by them. According to them the Malankara Jacobite Syrian Christian Association and that Managing Committee of that Association is not having any right whatsoever to frame rules or to interfere in any way with the administration of this church. The defendants pointed out the Ext. D67 judgment which I have marked today in this connection. That is the judgment of the Kerala High Court as regards another Parish church called Puthuppally Church. The District Court judgment in that case is marked here as Ext. D56 already and therefore I have stated in the petition for reception of this document the reasons which prompted me to mark this judgment as Ext. D67 today. Since District Court

judgment in this case has been already marked as evidence in this case, it is imperative to mark the High Court judgment in that very same case when that has become available. At the time when the evidence was closed in this case, and the arguments started, the High Court had not pronounced this judgment and this judgment of the High Court came only long after the arguments started in the case before me. Therefore as the District Court judgment in that case is already marked as evidence in this case, it is absolutely necessary to mark the High Court judgment in the same case also, now that it has become available. The High Court had occasion to go into this contention as regards the Parish Churches in the Puthuppally case Ext. D67. There the High Court has accepted the contention that the Parish churches in Malankara are separate and distinct trusts and the Malankara Syrian Christian Association and Managing Committee cannot frame rules as regards these. The learned counsel for the defendants relied upon Para 7, 10 and 22 of the Ext. D67 to show that the Edavaka churches in Malankara are separate and distinct churches and the Managing Committee etc. who has got powers only as regards the common sabha has no right to administer or frame rules as regards the separate edavaka churches.

​28. The plaintiff on the other hand says that the disputed church is also part an parcel of the Malankara Jacobite Syrian Christian Sabha and Association and Managing Committee of that Sabha and the Head of that Sabha, has got absolute right to make rules for the administration of that disputed parish church. According to the plaintiffs this sabha is an episcopalian sabha and the ownership of the church and the properties actually belongs to the episcopas. According to the plaintiff, the judgment in Ext. D67 case does not at all apply to the facts of the present case. The learned counsel for the plaintiff had vehemently opposed the marking of this judgment in this case as is stated that the scope of that judgment is different from the scope of the present case. According to him on question of facts the findings in that case do not bind the disputed church at all. He says that nature of this parish church has to be decided with reference to the facts and evidence adduced in this case and therefore the Ext. D67 judgment does not at all change the character of the disputed church.

​29. I think the learned counsel for the defendants are correct as regards this issue. When Ext. D56, the District Court judgment in the Ext. D67 case, was marked in this matter there was no objection at all from the plaintiff's side. After it has been marked in this case, the judgment of the High Court in the very same case has come. Therefore, it is absolutely necessary, as I have already stated, to mark the High Court Judgment in that case. From Ext. D67 it can be easily seen that there is practically no difference between the disputed parish church and the church that was involved in that case. That was also a Parish Church of the Malankara Jacobite Syrian Christians. The present church is also a Parish church of Malankara Jacobite Syrians. Both these churches are in the same Metropolitan diocese. Both of them are situated very near to each other. As was pointed out by the learned counsel for the defendants, the disputed parish church was established, even as the plaintiffs also contend, in a very ancient times. The plaintiffs do not contend that it was the entire sabha that established this church. The plaintiffs witnesses also do not contend for a moment that the members of the other Parishes in the very same sabha has got any right in the disputed parish church. The churches and the properties of this disputed parish church belong to the Parishioners of this church. A person who is a member of another Parish has to apply and become a member of this parish if necessary. A member of the entire sabha does not automatically become a member of the disputed parish church. The evidence of the plaintiff's own witnesses point out that this church is having separate properties. These properties were acquired by its own trustees as per documents which are produced in this case. So there is absolutely no difference between the Puthuppally church as seen from the Ext. D67 and this church as regards these matters. So the finding in Ext. D67 does help as to arrive at a correct conclusion as regards the nature of this church and the powers of the Malankara Syrian Christian Association and its Managing Committee as regards the disputed church. In view of the evidence given in this case and also in view of the reasons seen in Ext. D67 I find that the plaint parish church is distinct from the common Jacobite Syrian Sabha in the sense that it is having properties of its own. Their Lordship in Ext. D67 discussed the scope of the case which ended in the Supreme Court in connection with this matter.

21—

​That also we must remember. Hence I find that the plaint parish church forms a distinct trust distinct from the common Jacobite Syrian Sabha. I also find that the administration of the plaint church vests in the Parishioners and trustees appointed by them. Therefore (a) and (b) sub-divisions of this issue is found in favour of the defendants.

30. ​ISSUE 8 in O. S. 315/60: According to the defendants the disputed parish church has got a constitution of its own and that is marked here as Ext. D4. According to them that is the only constitution that is valid and binding upon the suit parish church. They say that the suit parish church being a distinct and separate trust by itself, the members of that parish church can frame a constitution to govern its working. Ext. D31 marked in this case is the minutes kept in the disputed parish church—which shows that this church was being governed as per that constitution. Secondly it underwent several changes and Exts. D5 and D5a marked in this case show that several amendments were considered by the General Body of this church. Ext. D5(l) to D5(k) are regarding this constitution. As per Ext. D5(l) the General Body decided to abide by the decision of the Edavakas Metropolitan as regards some disputed matters. He gave his decision and the final constitution was passed on 25-11-56 and is recorded in Ext. D5(m). The printed constitution is marked here as Ext. D4. Therefore according to the defendants, the Ext. D4 constitution was framed after taking of necessary steps and that was proclaimed after due publicity etc. and is only the valid and binding constitution for this parish church.

31. ​According to the plaintiffs each and every parish church cannot frame constitution for its own working. According to them Ext. P20 constitution framed by the Association binds all the churches and the working of the disputed parish church also must be as per the Ext. P20 constitution.

32. ​We have already seen in Issue No. 6 that this Parish Church is a separate trust by itself and it belongs only to the members of that parish church. Therefore these members are competent to frame a constitution. That being so Ext. D4 constitution framed by the General Body of this parish church and accepted by them is valid and binding.

33. ​In this connection the learned counsel for the defendants brought my attention to the fact that Ext. P68 the constitution as framed by the Malankara Christian Association in 1110 (it is constitution relied on by plaintiffs) is different in some respects from Ext. P20 which is stated to be the constitution framed by that association as is in existence now. In Ext. P20 it is stated that there were some amendments to the original constitution in 1951 and 1954. The rules 94 to 97 in Ext. P20 do not exist in Ext. P68 constitution. Apart from this the learned counsel for the defendants contended that the Malankara Jacobite Syrian Christian Association cannot frame rules for the working of each and every parish church. In Malankara Association, only 3 representatives of the parish churches are present. The Malankara Association is not given any power to frame rules for the working of the Parish Churches and that Association can frame rules only as regards the working of the common fund properties. The learned counsel for the defendants brought my attention to Ext. D67 judgment of the High Court in the Puthuppally Church case. That also shows that as regards the individual parish churches the members of those churches will be having absolute powers to make rules for their own working. In view of the Ext. D67 judgment it is stated that it has to be found that as regards the disputed parish church Ext. D4 alone is the constitution.

34. ​I am in agreement with the learned counsel for the defendants. Ext. D4 alone will be the constitution for the disputed parish church. Ext. P20 cannot lay down rules for the working of the Parish Church before me. In view of the Ext. D67 judgment a further discussion of this point is not necessary. It has been decided there that as regards the individual parish churches the Ext. P20 constitution has nothing to do and the constitution that is framed by the individual churches alone will be valid. Therefore I find under this issue that the constitution of the plaint church namely, Ext. D4 produced by the defendants, are valid and binding and is not invalid for the reasons stated by the plaintiffs.

**22**

—22—

 35. **ISSUE 6 in O. S. 315/60 and ISSUES 2 and 4 in O. S. 35/61:** According to the defendants the disputed parish church recognises the Patriarch of Antioch as the Head of this church and it also follows the metropolitans appointed by the Patriarch of Antioch. That is stated in Ext. D1 itself. In Ext. D4 the rule No. 1 itself is regarding that. In the last para of rule No. 1 it is stated that those who are not accepting the authority of the Patriarch of Antioch and the metropolitans appointed by him there will be having no right whatsoever in the disputed parish church or its properties. It is also stated therein that such people will lose their membership of this church. Therefore according to the defendants, the plaintiffs who are not accepting the authority of Patriarch of Antioch and also the authority of the first defendant who is a metropolitan appointed by the Patriarch of Antioch, have lost their membership in this church and therefore the priests of this church need not cater to the spiritual and religious needs of plaintiffs and their supporters. According to the defendants, the General Body of this church met and sent notices to the plaintiffs as regards this and asked them to show cause, if any, why their membership must not be terminated. These notices were issued as per Ext. D5 (p) resolution. That is seen on page 196 of Ext. D5. Notices were issued in terms of Ext. D5 (p) to all the plaintiffs. They were asked to show cause on 25-9-60 before the General Body why their membership should not be terminated. The entire proceedings of 28-8-60 seen on pages 196, 197 and in the beginning of page 198 is marked as Ext. D5(p). In Ext. D5(p) notice it is stated that the plaintiffs have filed O. S. 315/60 in Kottayam Munsiff's Court in defiance of the authority of the first defendant in O. S. 315/60 and therefore they have lost their membership. The plaintiffs did not appear before the General Body and so on 25-9-60. The General Body then passed a resolution saying that the plaintiffs have to be punished and if they are not withdrawing O. S. 315/60 before 7-10-60 and tenders a written apology for their conduct. They will lose their rights in the disputed parish church from 7-10-60 onwards according to that resolution. The General Body also entrusted the trustees with the responsibility of issuing notices to the plaintiffs mentioning this fact. The entire proceedings of the General Body dated 25-9-60 along with the draft of the notices is marked here as Ext. D5 (q). This can be seen on pages 198, 199 and 200 of the Ext. D5. The plaintiffs did not withdraw the suit O. S. 315/60 up to this date and they have not also tendered any written apology. Therefore according to the defendants the plaintiffs have ceased to become the members of this disputed parish church. The learned counsel for the defendants at the time of arguments stated that the defendants' contention is that the plaintiffs have ceased to be the members of this church automatically by their conduct and not because of Ext. D5 (q) resolution. According to the learned counsel for the defendants now even before Ext. D5 (q) resolution was passed the plaintiffs have ceased to become members of this disputed parish church because of their conduct.

 36. The learned counsel for the plaintiffs stated what we are concerned now is whether the plaintiffs have ceased to become members of the disputed church on the date of the filing of this suit, namely O. S. 315/60. He stated that that suit was filed on 9-8-60. There is no case for the defendants, according to the learned counsel for the plaintiffs, that the plaintiffs ceased to become members of this church on 9-8-60 in any event from the pleadings and also from Ext. D5 (q). Even as per Ext. D5 (q) the membership will be lost only from 7-10-60. That was the resolution of the General Body. So according to the learned counsel for the plaintiffs, first of all it cannot be stated that the defendants have a contention that the plaintiffs have automatically lost their membership even by filing of this O. S. 315/60, anywhere in Ext. D5 (q).

 37. Secondly the learned counsel for the plaintiffs says, that even as per Ext. D4 the disciplinary action taken by the General Body is not correct. In Ext. D4 the rule No. 43 lays down that no action as regards disciplinary action can be taken by the General Body or the Managing Committee of this Parish Church. The rule No. 53 therein shows who can take action in cases of breach of discipline. That has to be taken by the Metropolitan. Here no metropolitan has taken action against the plaintiffs. Therefore the plaintiffs say even if Ext. D4 is the constitution of the disputed parish church the action taken by the General Body against the plaintiffs is invalid. Rule 17 in Ext. D1 lays down the responsibilities of the General Body. That does not at all include...

disciplinary actions against members. Therefore, according to the learned counsel for the plaintiff, the action taken by the General Body in passing the resolution as can be seen from Ext. D5(q) is not at all valid and binding on the plaintiffs and the plaintiffs have not lost their membership in the disputed branch. He further contends that even if the General Body can take action against the plaintiffs, action now taken cannot be supported at all. As per Ext. D5(q), the action is taken for not withdrawing O. S. 315/60 and submitting a written apology as regards the conduct of the plaintiffs. The learned counsel for the plaintiffs says that the General Body cannot ask a party before this court to withdraw a suit pending in this court under the threat of a disciplinary action. The refusal to withdraw a suit pending in this court, according to him, cannot be a ground for taking disciplinary action against a member of the disputed parish church.

38. ​There is much force in the contention of the plaintiff's counsel that even as per Ext. D4 the action taken by the General Body of the disputed parish church as per Ext. D5(q) is not at all valid and binding on the plaintiffs. Rule 43 of Ext. D4 lays down that the disciplinary action cannot be taken by the General Body or the Managing Committee. If that is so, the General Body had no power to take disciplinary action against the plaintiff. From the contention of the defendants it is clear that disciplinary action was taken because the plaintiffs were not following the faith as laid down by the constitution namely Ext. D4. If that is so, it is a matter for the metropolitan to take action under rule 53 of Ext. D4. In view of the prohibition by the rule 43 and in view of the positive rules laid down in rule 53 action if any against the plaintiffs can be taken only by the metropolitan.

39. ​It is not correct to say that somebody automatically loses membership of the disputed parish church. When there is a dispute as regards the membership, that dispute has to be resolved and a finding has to be given as to whether the membership is lost or not. The only person who can give such a finding as per Ext. D4 is the Metropolitan. No such finding has been given by the Metropolitan in the case of the plaintiffs. Such a finding can be given by the Metropolitan only after following the rules of natural justice. Even Ext. D5(q) says that the plaintiffs will lose their membership of this church only on a date subsequent to the date of that resolution. The resolution was dated 25-9-60 whereas the membership is to be lost only by 7-10-60. So, even as per the General Body of this Parish Church, the plaintiffs were members of this church still 7-10-60 that is long after O. S. 315/60 was filed on 9-8-60. That being so, there is no automatic loss of the membership as is contended by the learned counsel for the defendant. In view of the above discussion that the plaintiffs have not ceased to become members of the plaint church and the resolution removing the plaintiffs from the membership of the parish church is not valid and binding. Those resolutions are ultra vires of the powers of the General Body as laid down by Ext. D4 constitution relied upon by the defendants themselves. The matter involved in those resolutions were also certainly subjudice as O. S. 315/60 in which those disputes as regards membership were being agitated was pending at that time. The contention of the plaintiffs that the civil court cannot go into that question whether the plaintiffs have lost their membership in the plaint church is also not correct. Section 9 of the C. P. C. will not be a bar for considering this issue as this issue certainly deals with a dispute of civil nature.

40. ​ISSUE 3 and 6 in O. S. 35/61: In view of the finding on Issue No 4 in O. S. 315/60 and Issues 2 and 4 in O. S. 35/61 the plaintiffs are entitled to get their religious services conducted by the priests of the plaint parish church and plaintiffs and their partisans have got rights to use this church and its cemetery and also the right to take part in the administration and management of the church and also to exercise their franchise in the meetings and committees concerned and have also got rights to become office bearers of this parish church.

41. ​ISSUE 5 in O: S 35/61: O. S. 35/61 was filed as the defendants 1 to 6 in that suit who are defendants 2 to 7 in O. S. 315/60 refused to conduct some religious services of the plaintiffs and their family members from the disputed parish church because of the filing of 315/60. According to the plaintiffs the wife of the 4th plaintiff died in October '60 and then the defendants 2 to 7,

​Page 24

​...in O. S. 315/60, refused to conduct the burial of that woman from the disputed parish church. According to PW.3, the first plaintiff, and PW. 5 the brother of the 4th plaintiff, the dead body of the wife of the 4th plaintiff, had to be taken to the disputed parish church without a priest accompanying it. Later the defendants 6 and 7 conducted the burial ceremonies from the church. The first plaintiff says that a purification ceremony of his house was to be conducted on 31st December '60 and the 5th defendant who ought to have conducted it refused to come to the plaintiff's house as the 7th defendant had banned his going there. Later, the other defendants also refused to do it and hence the first plaintiff, namely the PW. 3, had to approach Mathews Mar Evanios, the Metropolitan of the Kottayam Diocese, according to the plaintiffs, and got the services of one Pampadikandathil Kora Kuriakose Kathanar. With his help alone the first plaintiff was able to do the purification ceremony in his house for which he had invited about 100 families. The evidence by the first plaintiff as regards this is corroborated by the evidence here by the PW. 4. The 4th defendant as DW. 3 denies these allegations; but the 7th defendant or the 6th defendant in O. S. 315/60 against whom these allegations are mainly made did not go into the witness box to deny these allegations. In view of the resolution Ext. D5(q) and the evidence given here by the first plaintiff as PW. 3 and also the evidence of Pws. 4 and 5 I think the plaintiffs' case that the priests of this Parish church, namely defendants 1 to 6 in 35/61 refused to conduct the religious ceremonies of the plaintiffs as alleged in the plaint is true. This issue is found accordingly.

42. ​ISSUE 7 in O. S. 35/61: In view of my findings on Issue No. 6 in O. S. 315/60 and issue No. 8 in O. S. 315/60 no other priests other than the defendants 1 to 6 can be deputed to conduct the services and attend to the spiritual needs of the plaintiffs and their partisans from the plaint parish church if the trustees of the plaint church does not approve of it.

43. ​ISSUE 3 in O. S. 315/60: We have already seen in Issue No. 22 that the trustees of this disputed parish church alone can bring the suit of this nature. We have seen the decision reported in 1925 P. C. page 298 about that. I have already stated when discussing Issue No. 22 that the plaintiffs are not entitled to get this injunction as they are not in possession of the disputed parish church or its properties and the trustees are in possession of the disputed parish church. In view of my finding therein as regards the trustees, this suit is bad for non-joinder of trustees as parties herein. The learned counsel for the plaintiffs stated that the plaintiffs had filed a petition under Order 1 Rule 8 to get representative capacity for filing this suit, and that was granted by the court on 9-8-60. According to the learned counsel for the plaintiff the defect, if any, is not impleading the trustees will be cured by that action of the plaintiffs. But I have already considered under Issue No. 2 the question whether the plaintiffs can be given any representative capacity as far as this suit is concerned and has found that such a representative capacity cannot be given to them. I have mentioned in Issue No. 22 itself that in 1925 P. C. page 298 also the plaintiffs sued in a representative capacity under Order 1 Rule 8 as can be seen from that judgment itself. That can be seen from the last para on page 299 col. 1 of that decision. There it is stated that that suit itself was on a representative capacity. Still the P. C. held that the plaintiff has not made trustees parties to that suit. Same decision has to be arrived at in this case also even if the suit is on a representative capacity. For a suit of this nature trustees are absolutely necessary parties. Either they must bring this suit or they must be made defendants in the suit. Both these things are not done here. Therefore I find that O. S. 315/60 is bad for non-joinder of necessary parties.

44. ​ISSUES 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 in O. S. 315/60: In view of my finding on Issues 1, 2, 3, 4 and 22 I am not recording any findings on these issues as it is not necessary to do so. These are left open.

45. ​ISSUE 1 in O. S. 35/61: The plaintiffs are certainly competent to file this suit namely, O. S. 35/61 in their individual capacity as some of their civil rights are denied unjustifiably by the defendants, as I have already found in issue No. 5 in O. S. 35/61.

​46. ISSUES 23 and 24: in O. S. 315/60: In view of my findings on Issues 1 to 3 and 22 this suit namely O. S. 315/60 will have to be dismissed; but I think in the circumstances of this case as I am leaving open a number of Issues without recording findings, the parties will bear their own costs.

​47. ISSUE 8 and 9 in O. S. 35/61: In view of my findings on Issue 1 to 6 in O. S. 35/61 this suit will have to be decreed, but in the circumstances of this case also the parties will bear their own costs.

​In the result, the O. S. 315/60 is dismissed, no costs. O. S. 35/61 decreed! no costs.

​Dictated to the Stenographer, transcribed by him, revised by me and pronounced in open court on this the 18th day of June, 1964.

​Sd/- A. R. Sreenivasan,

Munsiff.

​A P P E N D I X.

​EXHIBITS FOR THE PLAINTIFF.

Issues 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 in O.S. 315/60: In view of my finding on Issues 1, 2, 3, 4 and 22, I am not recording any findings on these issues as it is not necessary to do so. These are left open.

​45. Issue 1 in O.S. 35/61: The plaintiffs are certainly competent to file this suit namely, O.S. 35/61 in their individual capacity as some of their civil rights are denied unjustifiably by the defendants, as I have already found."

in Issue No. 5 in O.S. 35/61.

46. Issues 2, 3 and 24 in O.S. 315/60: In view of my findings on Issues 1 to 3 and 22 this suit namely O.S. 315/60 will have to be dismissed; but I think in the circumstance of this case as I am leaving open a number of issues without recording findings, the parties will bear their own costs.

47. Issue 8 and 9 in O.S. 35/61: In view of my findings on Issues 1 to 6 in O.S. 35/61, this suit will have to be decreed, but in the circumstances of this case also the parties will bear their own costs.

In the result, the O.S. 315/60 is dismissed; no costs. O.S. 35/61 is decreed; no costs.

Dictated to the Stenographer, transcribed by him, revised by me and pronounced in open court on this the 18th day of June, 1984.

(sd). A.R. Sreenivasan,

Munsiff.