Kerala High CourtO.V.Johny vs V.P.George on 16 February, 2001IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

            THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

     WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936

                   OP(C).No. 1483 of 2014 (O)
                   ---------------------------
AGAINST THE ORDER/JUDGMENT IN I.A.No.2778/2014 IN OS 42/2003 of I
                 ADDL.DISTRICT COURT, ERNAKULAM
                        ----------------

PETITIONER(S) :-
------------------

       O.V.JOHNY, S/O.VARGHESE, OOMELLIL HOUSE,
       KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE
       KUNNATHUNADU TALUK.

       BY ADVS.SRI.V.B.UNNIRAJ
               SMT.R.S.GEETHA
               SMT.P.ANITHA

RESPONDENT(S) :-
------------------

    1. V.P.GEORGE, S/O.PAULOSE, VETTUKATTEAL HOUSE,
       KOKKAPPILLY DESOM, THIRUVANIYOOR VILLAGE,
       KUNNATHUNADU TALUK, ERNAKULAM DITRICT-682 305.

    2. M.V.GEORGE, S/O.VARGHESE, NADUVILEPARAMBIL HOUSE
       KOKKAPPILLY DESOM, THIRUVANIYOOR VILLAGE
       KUNNATHUNADU TALUK, ERNAKULAM DITRICT-682 305.

    3. ST.JOHN'S ORTHODOX SYRIAN CHURCH
       KANNIYATTUNIRAPPU
       KUZHIYARA KARA, THIRUVANIYOOR VILLAGE
       REPRESENTED BY ITS VICAR-682 312.

    4. M.V.GEORGE, S/O.VARKEY, MUREEKKAL HOUSE, THALAKODE KARA
       KANAYANNUR VILLAGE, KUNNATHUNADU TALUK
       ERNAKULAM DITRICT-686 693.

    5. P.M.JOY, S/O.MANI, PADINJAREKUDIYIL HOUSE,
       KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE,
       KUNNATHUNADU TALUK - 682 305.

    6. FR.JOHN MOOLAMATTOM
       S/O.FR.KURIAKOSE, VICAR
       ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU
       KUZHIYARA KARA, PIN - 682 312.

OP(C).No. 1483 of 2014

    7. K.P.VARGHESE, S/O.PATHROSE, KATTARATHUMALIL HOUSE,
       KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE,
       KUNNATHUNADU TALUK - 682 305.

    8. M.Y.SAJU
       S/O.YOHANNAN, ADVOCATE, MALIECKAL HOUSE
       KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE
       KUNNATHUNADU TALUK, MANAGER, ST.JOHN'S HS
       KANNIYATTUNIRAPPU-682 305.

    9. REJI.N.K. NADUMOLAYIL HOUSE, KUZHIYARA KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, SECRETARY
       ST.JOHN'S HOSPITAL, KANNIYATTUNIRAPPU-682 312.

   10. JOY, S/O.KOCHUKUNJU, CHELACHUVATTIL, THIRUVANIYOOR KARA
       THIRUVANIYOOR VILLAGE-682 308.

   11. E.V.JAMES, S/O.VARGHESE, EDAPPALLIMATTATHIL,
       THIRUVANIYOOR KARA, THIRUVANIYOOR VILLAGE,
       KUNNATHUNADU TALUK -682 308

   12. YACOB, S/O.KUNJAPPAN, KEELATH, THIRUVANIYOOR KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK -682 308

   13. BENNY PAUL, S/O.PAILY, PATTULLIL, THIRUVANIYOOR KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TLAUK - 682 308

   14. P.V.KURIACHAN, S/O.VARKEY, PUTHENVEETTIL,
       THIRUVANIYOOR KARA, THIRUVANIYOOR VILLAGE,
       KUNNATHUNADU TLAUK -682 308

   15. K.T.PAULOSE, S/O.THOMMAN, KOLLAMKULATHIL, KIDANGAYAM KARA
       KANAYANNUR VILLAGE, PIN - 382 312.

   16. C.A.THANKACHAN, S/O.ABRAHAM, CHIRAPPATTU, KIDANGAYAM KARA
       KANAYANNUR VILLAGE, PIN - 682 312.

   17. BABU, S/O.VARGHESE, CHIRAPPATTU, KIDANGAYAM KARA
       KANAYANNUR VILLAGE, PIN - 682 312.

   18. V.M.PAULOSE, S/O.MATHEW, VAZHAKALAYIL,
       KANAYANNUR VILLAGE-682 312.

   19. ELIAS, S/O.PAPPY, PARAKKULANGARA, KIDANGAYAM
       KANAYANNUR VILLAGE-682 312.

   20. GEEVARGHESE
       S/O.YACOB, KOKKATTU, KUZHIYARA KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK-682 308.

   21. N.U.JOSEPH
       S/O.ULAHANNAN, NJATTUTHOTTIYIL, KUZHIYARA KARA
       THIRUVANIYOOR VILLAGE, -682 308.

OP(C).No. 1483 of 2014

   22. T.P.WILSON
       S/O.PAILY, THACHETH, KOKKAPPILLY KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK-682 305.

   23. PAUL VARGHESE
       S/O.VARGHESE, VATTAPPILLIL, KOKKAPPLLY  KARA
       THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK-682 305.

       R1 BY ADV. SRI.S.VINOD BHAT
                   SRI.LEGITH T.KOTTAKKAL
       R3 & 6 BY ADV. SRI.S.SREEKUMAR (SR.)
                       SRI.P.MARTIN JOSE
                       SRI.THOMAS P.KURUVILLA
                       SRI.P.PREJITH
       R5 BY ADV. SRI.S.R.DAYANANDA PRABHU
       R16 BY ADV. SRI.K.PAUL KURIAKOSE
       R9 & R22 BY ADV. SRI.SHAHUL HAMEED MOOPPAN
       R17 BY ADV. SRI.P.VISWANATHAN


       THIS OP (CIVIL) HAVING BEEN FINALLY HEARD   ON  09-07-
2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:




jvt

OP(C).No. 1483 of 2014 (O)
---------------------------

                            APPENDIX

PETITIONER(S)' EXHIBITS :-
---------------------------

EXT.P1.TRUE COPY OF THE IA NO.2684/2014 IN OS NO.42/2003 FILED BY
THE 1ST RESPONDENT BEFORE THE 1ST ADDL.DISTRICT COURT, ERNAKULAM.

EXT.P2.TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 5TH
RESPONDENT IN IA NO.2684/2014 IN OS NO.42/2003 FILED BY THE 1ST
RESPONDENT BEFORE THE 1ST ADDL.DISTRICT COURT, ERNAKULAM.

EXT.P3.TRUE COPY OF THE LIST OF DOCUMENTS FILED ALONG WITH
EXT.P2.

EXT.P4.TRUE COPY OF THE JUDGMENT IN CMA NO.3/2001 DATED 16/2/2001
OF THIS COURT.

EXT.P5.TRUE COPY OF THE ORDER IN AFA 16/2001 DATED 12/6/2001 OF
THIS COURT.

EXT.P6.TRUE COPY OF THE ORDER DATED 17/8/2011 IN RP NO.269/2001
OF THIS COURT.

EXT.P7.TRUE COPY OF THE ORDER IN CMP NO.10262/2001 DATED
23/2/2001 IN OP NO.368/2001 OF THIS COURT.

EXT.P8.TRUE COPY OF JUDGMENT IN OP NO.368/2001 DATED 27/3/2001 OF
THIS COURT.

EXT.P9.TRUE COPY OF THE ORDER IN CMP 20605/2001 IN OP NO.368/2001
DATED 19/7/2001 OF THIS COURT.

EXT.P10.TRUE COPY OF THE ORDER IN CC NO.868/2002 DATED 18/11/2002
OF THIS COURT.

EXT.P11.TRUE COPY OF THE ORDER IN CC NO.868/2002 DATED 4/6/2004
OF THIS COURT.

EXT.P12.TRUE COPY OF THE JUDGMENT IN WPC NO.3497/2005 DATED
13/10/2005 OF THIS COURT.

EXT.P13.TRUE COPY OF THE JUDGMENT IN WA NO.2507/2005 DATED
12/1/2006 OF THIS COURT.

EXT.P14.TRUE COPY OF THE JUDGMENT IN OS NO.35/2000 DATD
20/12/2012 PASSED BY THE 1ST ADDL.DC, ERNAKULAM.

EXT.P15.TRUE COPY OF THE  DECREE IN OS NO.35/2000 DTED 20/12/2012
PASSED BY THE 1ST ADDL.DC, ERNAKULAM.

OP(C).No. 1483 of 2014 (O)
---------------------------

EXT.P16.TRUE COPY OF THE JUDGMENT IN CC NO.263/2004 OF JFCMC-1,
KOLENCHERY DATED 11/6/2013.

EXT.P17.TRUE COPY OF THE FINAL REPORT IN CRIME NO.2/2012 OF
PUTHENCRUZ POLICE STATION.

EXT.P18.TRUE COPY OF THE ORDER IN IA NO.2684/2014 IN OS
No.42/2003 DTED 4/6/2014 OF THE 1ST ADDL. DC, ERNAKULAM.

EXT.P19.TRUE COPY OF THE JUDGMENT IN WPC NO.503/2005 DATED
5/1/2005 OF THIS COURT.

EXT.P20.TRUE COPY OF THE IA NO.2778/2014 IN OS NO.42/2003.

EXT.P21.TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO.2778/2014 IN
OS 42/2003.

EXT.P22.TRUE COPY OF THE  ORDER DATED 30/6/2014 IN IA
NO.2778/2014 IN OS NO.42/2003.


RESPONDENT(S)' EXHIBITS :- NIL
--------------------------------




                          //TRUE COPY//


                          P.A. TO JUDGE



                   B. KEMAL PASHA, J.
                   -----------------------------
                O.P.(C). No.1483 of 2014
               -------------------------------------
           Dated this the 9th day of July 2014


                      J U D G M E N TThe first respondent in this OP as petitioner had

approached the 1st Additional District Court, Ernakulam

through   I.A.No.2778/2014       in   O.S.No.42/2003   seeking

permission underSec.151of the Code of Civil Procedure

1908, to the petitioner and his family members to conduct

Memorial mass in the church in question on 2.7.2014 in

between 7.30 a.m. and 9.30 a.m. and other services at the

cemetery in connection with the 30th day of demise, and

Holy mass on 12.7.2014 between 8 a.m. and 10 a.m. and

other Memorial services at the cemetery in connection with

the 40th day of demise of his father, by availing services of

Rev. Fr. Thomas Panichiyil Cor Episcopa. Direction for

necessary police assistance for maintaining the law and

order situation was also sought for. The court below hasO.P.(C). No.1483 of 2014-: 2 :-chosen to entertain the IA by overlooking the objections

raised by the respondents therein, and through the

impugned      order     dated 30.6.2014, allowed  the  first

respondent herein and his family members to conduct the

Masses at the church, and the other religious rites at the

cemetery by availing the services of Rev. Fr. Thomas

Panichiyil Cor Episcopa. Necessary police assistance has

also been granted.2.     The petitioner in the OP has come up by

challenging the impugned order, underArticle 227of the

Constitution of India by taking up the contention that the

impugned order is totally perverse.3.     Heard       the    learned   Senior    Counsel

Sri.S.Sreekumar for the 3rd and the 6th respondents

favouring the petitioner, and the learned counsel Sri. Paul

Kuriakose for the 16th respondent, who is travelling along

with the petitioner, and the learned Senior Counsel

Sri.R.D.Shenoy for the first respondent.4.     Learned     Senior  Counsel Sri.Sreekumar  hasO.P.(C). No.1483 of 2014-: 3 :-argued that the impugned order has been deliberately

procured by the first respondent under the guise of

expressing some sentiments projecting the necessity of

religious rites and rituals to be performed on the death of

the father of the first respondent, solely with a view to

circumventing the decree that has been passed by the court

below in O.S.No.35/2000 filed by the 6th respondent herein

as plaintiff. It has been argued that the 6th respondent

herein has obtained the decree which is a decree in rem by

having recourse to the procedure underOrder I Rule 8 of

the Code of Civil Procedure1908, and he is entitled to have

the relief against the whole world. It has been pointed out

that as per the judgment in O.S.No.35/2000, the defendants

in the suit and anybody claiming under them are restrained

by a permanent prohibitory injunction from interfering with

the plaintiff's right to discharge the duties of parish priest of

the first defendant including the conduct of Holy mass and

other religious functions of the first defendant, so long as he

is in service.O.P.(C). No.1483 of 2014-: 4 :-5.    Learned counsel Sri.Paul Kuriakose appearing for

the 16th respondent has argued that even though the IA

prima facie may seem to be innocuous, it is a clandestine

attempt to circumvent the decree that has been passed in

O.S.No.35/2000.        His argument is that if at all the first

respondent wanted to raise this issue, he ought to have

approached this Court wherein an appeal on the judgment

and a decree in O.S.No.35/2000 is pending; instead of it, the

first respondent has deliberately chosen the court below as

the forum to move the IA in O.S.No.42/2003, a suit which is

totally alien to such matters. It has been pointed out that

O.S.No.42/2003 is a suit filed underSec.92of the Code of

Civil Procedure, 1908, which has almost been finally

decided by this Court, as all the parties had submitted to the

jurisdiction of this Court, and the matter has been sent back

to the court below solely for the purpose of conducting an

election by way of the final adjudication of the suit. It has

been pointed out that such a request for the impugned order

could not have been mooted in a suit like O.S.No.42/2003,O.P.(C). No.1483 of 2014-: 5 :-which is pending solely for the conduct of the election as

ordered by this Court.6.     Per     contra, the     learned  Senior   Counsel

Sri.R.D.Shenoy, in his inimitable style has expressed the

deep sentiments of the first respondent in the death of his

father and in getting the last wishes of the father of the first

respondent to have a Holy mass under the services of Rev.

Fr. Thomas Panichiyil Cor Episcopa in the church, as well as

other rites and rituals at the cemetery, performed. Learned

Senior Counsel has pointed out that such an equitable relief

sought for cannot be denied especially, when the first

respondent entertains deep sentiments on the performance

of the last wishes of his father. According to the learned

Senior Counsel, the granting of such an equitable relief will

never influence the final adjudication of the suit or

adversely affect the rights of the parties in any manner.7.    On hearing the learned Senior Counsel and the

other counsel in extenso, this Court is of the view that the

rival factions have created an unfortunate situation in theO.P.(C). No.1483 of 2014-: 6 :-church and the solemn atmosphere of the church has been

transformed to that of a battle field at present. It seems

that the church cannot be opened always as the key is even

now at the police station as per the orders of the Revenue

Divisional Officer. It seems that, the learned counsel for the

16th respondent has pointed out that, the present first

respondent and his younger brother, who are A6 and A12 in

a case registered by the Puthencruz Police for offences

including the one underSec.307IPC, are the active

members of the patriarch faction who used to express

belligerency towards the other faction, in favour of whom, a

decree has already been passed in O.S.No.35/2000. Even

though the first respondent is not an accused in the crime, it

seems that his two younger brothers are accused in the

crime, which had occurred at an occasion wherein a flag

hoisting ceremony at the premises of the church was going

on. It seems that the Circle Inspector of Police, Puthencruz,

who was summoned by other policemen on duty there, for

keeping the law and order situation, was brutally attackedO.P.(C). No.1483 of 2014-: 7 :-and attempted to be murdered by the accused persons.

Other policemen were also injured.8.     It is true that the last wishes of a person cannot

be given a go-by; but at the same time, the performance of

it, should not be at the peril of the party who has obtained

his legal right declared through a prolonged legal battle. It

seems that a decree has been passed in favour of the 6th

respondent herein thereby entitling him to conduct all the

Masses in the church. If in such a situation, by entertaining

the sentiments expressed by the learned Senior Counsel,

another priest who is not appointed or ordained under 1934

Constitution is directed to conduct the Holy mass in the

church, that will spoil the atmosphere in the church and it

will violate the decree that has been passed in the suit. Of

course, that could have been done at the concession of the

other party. Unfortunately, when belligerency in between

both the factions still exists, it may not be possible at all.9.     At the same time, when the right that has been

granted through a decree is mainly relating to the servicesO.P.(C). No.1483 of 2014-: 8 :-in the church, it may not stand in the way of the first

respondent to conduct other rites and rituals at the

cemetery and tomb of the deceased by availing the services

of a priest of his choice. At the same time, for conducting

the Mass in the church, this Court is of the view that, they

should obtain the services of a priest who is appointed or

ordained under 1934 Constitution, or in the alternative, to

obtain the services of the 6th respondent, if they are willing

to.10. Learned        Senior  Counsel  Sri.R.D.Shenoy   has

pointed out that on earlier occasions also, similar orders

have been passed, thereby enabling the parties to have the

masses conducted in the churches. Learned Senior Counsel

has invited the attention of this Court to Ext.R1(a) order to

point out that in a similar situation the party was permitted

to conduct mass in the church after the regular mass in the

church. Learned Senior Counsel Sri. S. Sreekumar has

pointed out that it was a case wherein no final adjudication

was made and the matter remained open at the time ofO.P.(C). No.1483 of 2014-: 9 :-passing such an order, when the rights of the parties in the

said suit were not crystalised or finalised. In such a

situation, when the rival factions were claiming that they

were conducting masses at different times in the very same

church, such an order was passed. The said order cannot

be taken as a precedent so far as the present case is

concerned.11. It seems that the impugned order has resulted in

perversity and the same has been passed without taking into

consideration of the rival contentions of the parties in

O.S.No.35/2000. The same has resulted in substantial

miscarriage of justice, and therefore, the said order has to

be quashed.In the result, this OP is allowed, and the impugned

order is quashed. At the same time, the first respondent,

who is the petitioner before the court below, and his family

members are permitted to conduct any rites or rituals at the

cemetery and tomb on 12.7.2014 in connection with the 40th

day of demise of the father of the first respondent herein byO.P.(C). No.1483 of 2014-: 10 :-availing the services of a priest of their choice. They are

further permitted to conduct other religious rites, rituals

and Holy mass in the church also by availing the services of

a priest, who is appointed or ordained under 1934

Constitution, or in the alternative, by obtaining the services

of the 6th respondent, if they are so advised.Sd/-B. KEMAL PASHA,
                                                JUDGE.Jvt




                          // True Copy //

                                 PA to Judge