M CHANDA PILLAI Vs. DANIEL MAR PHILAXINOSE

JUDGEMENT

(1.) These two civil miscellaneous appeals arise out of two orders passed by the Sub Court, Pathanamthitta, in O.S. No. 69 of 1973. C M A No. 159/74 is against an order refusing to grant an injunction restraining the respondents and their agents and representatives from interfering with any of the affairs of the plaint church, viz., St. Thomas Valiya Palli at Omallur which is a Jacobite Syrian Church. Four plaintiffs, alleging themselves to be members of that Church and its Managing Committee, filed the suit for a declaration that the plaint church and the properties appertaining thereto are held by the parishioners upon trust and be managed as such and alternatively for a declaration that there are two independent sections in the plaint church known as Patriarch section represented by the plaintiffs and defendants 2, 5 and 7 and the Catholicose section represented by defendants 1, 3, 4 and 6, and that they are entitled to manage their own affairs in the plaint church. The said church was founded some 500 years ago for the worship of God according to the faith, doctrine and practice of the Jacobite Syrian Christian Church with the Patriarch of Antioch as its head. The original purpose of the foundation was to remain independent of any superior religious organisation and to be governed by its own members or by persons elected by them. According to the faith of the founders of the plaint church, the priests and the other religious dignitaries must have received spiritual grace from the Holy Throne of St. Peter and no other. It is their faith that the spiritual grace and apostolic succession can be obtained only from the Throne of St. Peter on which the Patriarch is seated The plaint church and the properties appertaining thereto are held subject to a trust that the same shall, at all times be used for the above purposes without any deviation. The practice and discipline of the plaint church enjoin that the Metropolitan thereof must be a Bishop consecrated by the hands or under the authority and commission of the Patriarch of Antioch who is the successor on the Throne of St. Peter and be accepted or elected by the people over whom he exercises power; that the Metropolitans, Kathanars, and Parishioners shall owe allegiance to and be obedient to the said Patriarch in all spiritual matters concerning the Jacobite Syrian Church; that all religious dignitaries in the Parish church including the Metropolitan shall at the time of their ordination take an oath of obedience and loyalty to the supreme spiritual head of the Church, the Patriarch of Antioch; and that the jurisdiction and powers of all religious dignitaries above the rank of Kathanars and Vicars are confined to purely spiritual matters only. The Jacobite Syrian Church including the plaint church adopted the book containing the rules of Canon which has been accepted by the Patriarch of Antioch. Subject to usage, these rules are followed in all ecclesiastical matters. The Malankara Jacobite Syrian Association or the Thumpamon Diocesan Council or any other body has no control over the administration of the plaint church which is an independent unit by itself. For long there were two parties in the Malankara Sabha, and after a decision of the Supreme Court in 1958, a union of the two parties was attempted. The differences between the parties regarding the correct version of the book of Canons, regarding the constitution and regarding the powers of the Patriarch. Catholicose and Metropolitans remained unsettled. In 1964 there was a further attempt for the union of the above parties when the Patriarch of Antioch ordained a Catholicose of the East. The two parties agreed to have the religious service in the plaint church conducted by their own priests on every alternate week. But, subsequent events have convinced the plaintiffs and those who go with them that the Catholicose party had no bona fides in their profession and are attempting to liquidate the Partiarch party. Defendants 1, 3, 4 and 6 refused allegiance and obedience to the Patriarch of Antioch. The first defendant Metropolitan of Thumpamon Diocese is using a book of ordination in which the name of the Patriarch of Antioch is either omitted or scored off. The ordinated persons are not allowed to take the oath of allegiance to the Patriarch. They accept and treat the Catholicose as the head of the Church. The Catholicose is only a spiritual dignitary with powers to ordain Metropolitans and consecrate Moran (Holy oil) on behalf and with the sanction of the Patriarch. He has no temporal or administrative powers as claimed by him. In order to deny the spiritual supremacy and powers of the Patriarch who is seated on the Throne of St. Peter, defendants 1, 3, 4 and 6 and those who go with them have propounded a theory that all disciples of Christ have established Thrones and that the spiritual grace necessary for the efficacy of the ordinations of religious dignitaries can emanate from any such Throne. They have invented a Throne for St. Thomas, who is said to have visited South India in 52 A.D. They profess belief in a Throne which, they allege, has been established in the Malankara Sabha by him. They further believe that Catholicose is seated on that Throne and that spiritual grace and apostolic succession can be obtained from that throne. They also believe that Catholicose and Patriarch are equal in the hierarchy of the Church and the former need not be obedient to the latter in anything and that the Catholicose can be ordained without the Patriarch. All these are deviations from the original objects for which the Church is founded and against the provisions of the Canon. Defendants 1, 3, 4 and 6 and their followers have made unauthorised changes in the liturgy used in the plaint church. The importance given to the Patriarch has been taken away and has given a place subordinate to that of the Catholicose. They also refuse to accept the true version of the Canon and are following a wrong Canon which was rejected in the previous litigations between the same parties. The first defendant is not a properly ordained Bishop, as he was not ordained by the Patriarch or his delegate. He has not taken the oath of allegiance to the Patriarch. He was ordained on 15-4-1953 by persons who had no authority from the Patriarch. The respect given to him after 1959 was only as a matter of courtesy. The constitution was adopted by the Malankara Association in 1951 which is against the resolution unanimously adopted at the Mulanthuruthy Synod held in 1050 M.E. The defendants having realised that plaintiffs and their followers are unwilling to deviate from the original principles for which the church was founded, the 1st defendant and his partisans tried to remove the priests of the Patriarch section and to appoint new priests in their place, who belong to the Catholicose section. On 19-6-73 the first defendant issued an order purporting to remove the 2nd defendant from his functions as Vicar and priest in the church. This was opposed by the Patriarch section as it is against the usage of the Church, and a suit is pending relating to this matter in the Munsiff's Court, Pathanamthitta. The first defendant has no right to remove the second defendant from the Church. He was ordained for the plaint Edavaka by a competent Metropolitan and accepted and appointed therein from 1925 as its priest and Vicar. He is entitled to function for life. The first defendant is also trying to remove defendants 5 and 7 from their office as priests in the plaint church for which also he has no authority. It is the custom and usage in the plaint church from, the date of its establishment to nominate or elect persons by the parishioners or its Pothuyogam as their priests and to send the person so nominated or elected to a properly ordained Metropolitan to be ordained as a priest. The priests thus ordained are allowed by the parishioners to function in the church as priests or Vicars for life. The priests thus appointed are not liable to be removed or transferred by any authority without the express consent of the priest himself and of the parishioners. The perquisites and remuneration of the priests are paid by the members of the church. The first defendant claims to be in the position of master and servant relationship with the priests. This arrangement was stopped from January 1973 after which the plaintiffs and their section refused to pay the amount to the first defendant and they continued to pay directly the remuneration of their priests. On these allegations the suit was filed and a temporary injunction was asked for.

(2.) The contesting defendants denied that there are two parties in the plaint church. Ever since 1959 there is no division in the plaint parish and administration of the parish is being carried on under the orders of the first defendant, according to the rules mentioned in the Bharanaghatana which has been accepted by the Patriarch of Antioch. The said Bharanaghatana has been accepted an d acted upon by the plaint church and from 1959 onwards there is only one Metropolitan, one Vicar, one Trustee and one Malankara Association. The plaint church is one of the churches of the Orthodox Syrian Church which is governed by the Bharanaghatana accepted by all the parishioners including the parties to the suit. It is not correct to say that the faith of the plaint church is that spiritual grace and apostolic succession can be obtained only from the Holy Throne of St. Peter. Such a doctrine is newly invented by the second defendant and his partisans with some selfish motives. The practice and discipline of the plaint church are governed by the Bharanaghatana which enjoins that the Metropolitan must be a Bishop consecrated by the head of the Church who is the Catholicose of the East. The Metropolitans, Kathanars and Parishioners shall owe allegiance and obedience to the Catholicose. All the parishioners of the plaint church have accepted the above principle and practice and the plaintiffs are estopped from contending otherwise. The plaint church has never accepted any congregational principles. It is an episcopal church. The Malankara Syrian Christian Association arid the Thumpamon Diocesan Council have complete control over the administration of the plaint church. There is no parallel administration as alleged by the plaintiffs. The Catholicose is the accepted head of the Church and the 1st defendant is using the accepted book of ordination. The plaintiffs, in order to create a division in the parish as well as in the whole Church are trying to propagate a doctrine which is foreign to the Orthodox Syrian Church and to other Churches as well. All the differences between the parties have been settled and all the parishioners including the plaintiffs have accepted the Catholicose as head of the church and the administration of the plaint church was carried on solely on the basis of the Bharanaghatana. Defendants 1, 3, 4 and 6 have not committed any breach of trust. The first defendant has got a right to transfer the second defendant. The allegation of the plaintiffs that each section pays remuneration to their respective priests is denied. The position of master and servant relationship . has been accepted and acted upon by all the parties including defendants 2, 5 and 7. The rule regarding the administration of the church is that the Vicar with elected trustees will function as trustees. There is no sectional elections at any time. All the members of the Pothuyogam will elect a layman trustee as per the constitution.

(3.) The learned Sub Judge, on these various averments and on the documents produced before him, came to a conclusion that the plaintiffs have not established a prima facie case for the grant of an injunction against defendants 1, 3, 4 and 6 and hence dismissed the application.