SAJU Vs. ST.MARYS CHURCH

JUDGEMENT

(1.) The appeal is preferred against the decree and judgment dtd. 25/6/2002 of the 1st Additional District Court, Ernakulam in O.S. No.40/2000. The plaintiffs in the suit are the appellants and defendants are the respondents. The 2nd respondent died during the pendency of the appeal. The 3rd respondent was substituted by new Vicar. Therefore, legal heirs of 2nd respondent and the new Vicar were brought on record as additional respondents 4 to 6 vide order dtd. 10/7/2014 in I.A. No.2351/2013. The Original Suit was filed seeking reliefs as follows:

(2.) The suit was dismissed by the judgment under challenge and the aggrieved plaintiffs are now before this Court in the appeal suit on hand. Sri.N. Sukumaran, the learned Senior Counsel has contended that Ext.A7, a common judgment was passed in O.S. No.4/1986, 206/1977 and 20/1994 on 29/7/1996 by the 1st Additional District Judge, Ernakulam (Special Court for Malankara Church cases) against the patriarch faction to which the plaintiffs belong and on dismissal of the appeal preferred from Ext.A7 by this Court and a Special Leave Petition filed against, by the Apex Court, it has become final. During the pendency of Ext.A7, Church was closed at the intervention of Executive Magistrate. Consequent to the closure, two factions had made alternative arrangements for meeting their religious needs. During the pendency of suits which led to Ext.A7 judgment, Church was made available for the two factions to conduct separate masses in turn. An Advocate Commissioner was appointed to conduct election of the administrative committee, to manage the assets of the Church. A voters list was prepared by the Advocate Commissioner as Ext.A5 and an election was conducted on its basis. The elected committee was in administration till the 2nd defendant and others assumed charge of the church on the strength of Ext.A7 judgment. Defendants 2 and 3 and others failed to administer the affairs of the Church or conduct valid elections on the expiry of their term of one year and the said circumstances necessitated the filing of the present suit seeking the reliefs as aforestated.

(3.) Before the trial court the plaintiffs and the defendants tendered oral evidence respectively as PW1 and DW1. Exts.A1 to A12 and Exts.B1 to B13 were marked. The trial court failed to appreciate the evidence in its proper perspective and thereby issues 2, 3 and 4 among the six issues raised were answered against the plaintiffs and that culminated in the dismissal of the suit. According to the learned counsel, the defendants fail to raise a plea that the suit was bad for nonjoinder of necessary parties to the suit. According to him, in the said background, the trial court ought not to have raised non-joinder of necessary parties as an issue and dismissed the suit for that reason. It is further contended by the learned counsel that the trial court has proceeded on the wrong assumption that two factions namely Catholic and Patriarch, were there and the 3rd defendant and Rev.Father C.P. George were holding charge of the Vicars of the rival factions. In effect there were no such factions in the Church. The plaintiffs have accepted the 3rd defendant and the 1934 Constitution. The trial court found that a Trust was there and the administration of the Trust was not in the hands of persons properly elected as per 1934 Constitution. According to plaintiffs, the suit ought not to have been dismissed by the trial court. According to them, Ext.B9 document ought not to have been relied on by the trial judge to state that the plaintiffs' faction as it existed then was separated from the Church to form another Church. The erstwhile plaintiffs' faction were not accepted by the 3rd defendant and his faction, as parishioners. The factional metropolitan is also reluctant to recognize the plaintiffs' faction as parishioners of the Church. According to him, in the said background that the intervention of the court is sought for resorting to conduct an election based on Voter's list prepared by the Advocate Commissioner in O.S. No.18/1977, in a democratic way for the management of the Church and its assets. Raising contentions of the above nature, the learned Senior Counsel seeks for interference with the judgment under challenge to set aside the same.