Jacobite Christians’ desperate plea for justice in the Kerala High Court by way of an impleadment petition against the betrayal by their own leadership

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                                       IA             2021 

                 WRIT PETITION No.  27219 of 2019  

                  Manu Kurian Thuruthel     : Petitioners/Addl. Respondents to be        
                                               impleaded as R5 to R9

   St.Mary’s Orthodox Syrian Church  : Respondents/Petitioners & Respondents

AFFIDAVIT

I, Manu Kurian Thuruthel, aged 49 years, s/o late Kurian Thuruthel, Indian Inhabitant, residing at Thuruthel, 149, Plot no. 998, 6th Avenue, Anna Nagar, Chennai, PIN- 600 040, do hereby solemnly affirm and state as follows:-

1. I am the 1st Petitioner in the above application seeking permission to intervene in the above Writ Petition and oppose the same. I know the facts of the case and am competent to swear to this affidavit on my behalf.
2. I am constrained to institute the instant application for impleadment as a third party to the proceedings and oppose the same because I am made to understand, and I bona fide believe that the Respondents in the above writ petition and other connected writ petitions which are listed for hearing on 5.10.2021, before this Court, namely, the bench of Hon’ble Justice Devan Ramachandran, are not going to be contested earnestly. I have reason to believe, which for considerations of reticence I refrain from elaborating, that the state government and the leadership of the Jacobite Church has entered into certain tacit understanding, namely, to offer a make believe contest and allow the Orthodox faction to take over the churches involved in the above batch of cases, and eventually, all Jacobite Churches, namely, those owing allegiance to the Patriarch of Antioch, who is a bete noire of the Catholicos faction. The Orthodox faction, to meet the obligations under certain judgments of the Supreme Court, without any bona fides, referred to the Patriarch as the spiritual head of their church, namely, the Malankara Orthodox Church.
3. The Petitioner is a devote Jacobite Christian who believes that the spiritual grace of the Holy Ghost is transmitted from generation to generation since the Pentecost day, by the ‘imposition of hand’ by the Patriarch of Antioch or those duly anointed by him and by none else. The Petitioner, and millions of Jacobite Christians believe that the Orthodox faction and their religious dignitaries, not being anointed by the Patriarch of Antioch by the imposition of hand or those anointed by him, are vested of no spiritual grace, and no salvation of the soul could be achieved by receiving the Holy Sacraments administered by them. So far as the Petitioner and other Jacobites are concerned, the Catholicos and other dignitaries of the Orthodox faction are heretics who have defied the Patriarch and have established an independent church.
4. In other words, there exists two churches, the Malankara Syrian Jacobite Church, of which the supreme spiritual authority is the Patriarch of Antioch, and the break away group who challenged his supremacy and have set up an independent church. This is a matter of faith and no temporal authority, including judicial authorities are vested of no jurisdiction in matters of faith, and judicial pronouncements on matters of faith amount to infringement of the fundamental right of freedom of conscience and faith, which the Courts are duty bound to uphold. But unfortunately, the Courts today have become instruments of the very denial of the inviolable freedom of conscience and faith, the Petitioner is afraid to say.
5. The scenario today is frightening. This Court (Hon’ble Mr. Justice Devan Ramachandran) the Petitioner is made to understand, has made it expressly clear that with the judgment of the Supreme Court in K.S Varghese, there is only one Malankara Syrian Church, namely, the one governed by the so-called 1934 Constitution. This Court (Hon’ble Mr. Justice Devan Ramachandran) the Petitioner is made to understand, has made it clear in unmistakable terms that with the authoritative pronouncement of the Supreme Court, there is no scope for any further litigation and that the judgment in K.S Varghese is liable to be implemented and that the state is duty bound to enforce the judgment by affording police protection, and that this Court hopes that both the litigating parties would bring an end to the conflicts and resolve the disputes amicably.
6. The Petitioner is also made to understand from reliable sources that the State Government has taken a political decision to accept the judgment in K.S Varghese as one to be applicable to the entire Malankara Syrian Church, and to provide police support for implementation of the judgment, namely, to take over the 500 and odd churches under the control of the Jacobite faction and to hand it over to the Orthodox faction, and not to raise any dispute as to the validity of the judgement and the manner in which the judgment is sought to be enforced by the Orthodox faction. Nothing could be more frightening than this attitude of the state government to blindly implement the judgment by force no matter how great a violation of the fundamental right of freedom and conscience of millions of Jacobites guaranteed by the constitution.
7. The most frightening is the attitude of some section of the leadership of the Jacobite faction, particularly those responsible for the conduct of the cases on behalf of the Church. The Petitioner is made to understand that the section of the Jacobite leadership has already arrived at an understanding with the Orthodox faction to accept the so-called 1934 constitution as binding and conduct the affairs of the Jacobite church in accordance with the said constitution, which in other words would mean nothing but the Jacobite faction having to denounce their faith and join the Orthodox faction, the heretics who have left the church. The Petitioner is made to understand that the Government is also fully aware of the betrayal of the faithful of the Jacobite faction by a section of their leadership, and the written submissions which the government has made before this Court is the outcome of the understanding between the said leadership of the Jacobite faction, the Orthodox faction and the Government. In light of the above developments, the above cases are not going to be effectively defended and miscarriage of justice is a fait accompli, unless, the Petitioner is allowed to intervene as a third party to the proceedings and bring before this Court the true facts and legal position.
8. It is difficult to fathom how this court, the sentinel in qui vive, namely, the protector of the life, liberty and freedom of the citizens could become an instrument in the denial of freedom of conscience and faith of over a million Jacobite Christian. The misconception of this court, so too, even the Supreme Court, of certain fundamental principles of law, namely, the concept of res judicata, res inter alios and stare decisis, unbelievable though, is the sole reason for this court becoming an instrument in the denial of the very freedom of conscience and faith, and the right to practice one’s religion enshrined in Articles 14, 21, 25 and 26 of the Constitution. I beg to delve into the same as advised by my counsel, very briefly as infra.
9. The Supreme Court in K.S Varghese’s case, (2017) 15 SCC 333), which was concerning Kolancherry, Varikoli, Mannathur churches and which has nothing to do with the Churches involved in the instant batch of cases, was pleased to hold erroneously, contrary to the first principles of jurisprudence, that its judgement in the said case, so too, in the Samudayam case, will be binding on the parish churches and the parishioners who were not even parties to the suits, because the said judgments are rendered in representative suits. A judgment in a representative suit concerning churches, the Supreme Court failed to notice, could only be binding on the Churches and parishioners who were concerned, who were parties to the suit, and not otherwise. In other words, the judgment in K.S Varghese was binding on the Parish churches of Kolencherry, Varikoli, Mannathur and none else, and certainly not the Churches involved in the instant batch of cases which were not parties to the suit. In other words, the judgment in K.S Varghese does not constitute to be a binding judgment so far as the instant batch of Churches are concerned, as res judicata.
10. The judgment in K.S Varghese, arising out of three representative suits concerning the parish churches of Kolencherry, Varikoli and Mannathur were binding on the parishioners of the said churches though they were not individually parties to it. It was binding on them because they were constructively parties to the same. The judgment in K.S Varghese is not binding on any of the other 1000 and odd churches other than the said three churches because none of the other 1000 and odd churches, its trustees and parishioners were parties to the same. It is not difficult to understand that nobody would be bound by a judgment in which he is not a party, directly or at the least constructively. None of the churches involved in the instant batch of cases were parties to the K.S Varghese judgment. The churches, its trustees and parishioners are total strangers to the said judgment, and that therefore, they are not bound by the judgment in K.S Varghese is not a difficult principle to comprehend. For a judgment to be res judicata in a subsequent case (namely, for K.S Varghese to be made applicable to the 1000 and odd Jacobite churches), five essential conditions ought to be met, namely:
    a) Cause of action should be the same in both cases
    b) Cause of action should have been adjudicated on its merits and cease to be in existence, it having merged with a decree of the court
    c) Parties should be the same in both cases
    d) Parties should have been heard
    e) The court should have jurisdiction (KS Varghese judgment was rendered holding that the Patriarch’s spiritual powers had come to a vanishing point, which the Supreme Court has no jurisdiction to do)
11. These are not principles or issues which offer any great difficulty of comprehension. There is an age old saying in Malayalam to be roughly translated as thus: ‘we can wake those who are sleeping, but not those who are pretending to be asleep’.
    The lawyers of the patriarch faction, now certainly know, for they have been repeatedly told, that the judgment of the Supreme Court in the Samudayam case wherein it was held that the Syrian Jacobite Churches are to be administered according to the so-called 1934 constitution of the Malankara Association, is not binding on the Jacobite Churches, for not a single church out of the 1000 and odd churches was a party, and therefore the judgment of the constitution bench was rendered void ab initio. The Samudayam case was all about the spiritual and temporal administration of the 1000 and odd churches, but since not even a single church was a party, the actual issues which would have been raised had churches been made parties, were not raised at all. The judgment in the Samudhayam case is a result of human error, though great lawyers were involved in the conduct of the case. The Patriarch faction, sadly and erroneously conceded in the Samudhayam case that the judgment in the Vattipanam case is binding on them as res judicata, though the cause of action, the parties were different and the necessary parties were not heard. In the Vattipanam case, the controversy/cause of action was to which of the waring factions was the ‘vattipanam’, namely Rs.10,000 laying with the British treasury, ought to be paid. It was held, rightly or wrongly, that the entire sum be paid to the Orthodox faction. With that judgment, the said cause of action ceased to be in existence. It having merged with the decree of the court. The cause of action in the Samudhayam case was as to the manner in which the spiritual and temporal affairs of the 1000 and odd churches ought to be administered, which is completely distinct from the cause of action in the Vattipanam case. In the Vattipanam case, there was no need to array the 1000 and odd churches because the money which was laying in the British treasury was in the name of the Malankara Association and had nothing to do with the individual churches. The churches, therefore, were not necessary parties. However, in the Samudhaya case, the 1000 and odd churches were necessary parties. None of the said churches were arrayed as a party. The failure to array the churches, the necessary parties, was a fundamental flaw which renders the judgement in the Samudhayam case as one rendered void ab intio. The judgment in the Vattipanam case could not have been binding as res judicata in Samudhayam case for other reasons as well, however, for the sake of brevity, the Petitioner refrains from delving into the same.

12.Suffice to say that the judgment of the Supreme Court wherein the so-called 1934 constitution was held as binding on the Malankara Jacobite Churches is binding on none of the Jacobite Churches, including the Churches in the instant case, because none of them were parties. The judgment of the Supreme Court in K.S Varghese was rendered relying on the judgment in the Samudhayam case which was one rendered void ab initio and still born. The judgment in K.S Varghese therefore, is one rendered, it being based on the judgment in the Samudhayam case. Even assuming it to be valid, the said judgment was binding only in respect of the parish churches of Kolencherry, Varikoli and Mannathur, and it was implemented. To capture other Jacobite churches in the name of implementation of the judgment in K.S Varghese is an affront to reason and against elementary principles of jurisprudence. There is no difficulty in comprehending the same. ‘You can wake those who are sleeping, but not those who are pretending to be asleep’. It is difficult to fathom why the Orthodox faction seeks to capture the churches of the Jacobite faction in the name of K.S Varghese, knowing pretty well, at least now, that the said judgment arising from a representative suit, could only be binding on the parishioners of the three churches involved in the case, and none else.

13. What is even more dreadful is the scenario where even this Court fails to take notice of what is undeniable and crystal clear, namely that there exists no judgment of the Supreme Court, in the enforcement of which the Jacobite Churches could be forcefully taken possession of and handed over to the Orthodox faction, and even fails to record the contentions of the Jacobites as above in writing as well as addressed by way of oral arguments.
14. The judicial means for correction of the injustice failed, the Petitioners submit with utmost respect, because the Supreme Court refused to undo its mistake, ex debito justititea, which it was duty bound to do by invoking its inherent power under Article 129, 32 and 136. When Jacobite Christians sought correction of the grave injustice at the hands of the Supreme Court, so too of this court, such pleas were dismissed, so far as the Supreme Court is concerned, by one/two sentence, non-speaking orders and so far as this Court is concerned, though not by one line orders in its literal sense, but indeed non-speaking, without adverting to the contentions raised, namely that the judgments of the Supreme Court constitute to be no res judicata or stare decisis but are all rendered void ab initio, non est, still born, ones which never ever existed in the eye of law, being pronouncements on the faith of the Jacobite Christians, which no court has jurisdiction to do, without hearing, nay, without even having the 1064 churches or its trustees on the party array, not to speak of the faithful.
15. As has been stated above, it has become imperative for me to seek intervention and oppose any relief being granted in the above writ petition, and to seek its dismissal forthwith. This petition, by no stretch of imagination, can be said to be concerning only the parties to the said writ petition. It is all about my faith, the faith of thousands of parishioners of the church and millions of faithful all over the world and our very fundamental right of freedom of conscience and faith.
16. It is a fundamental principle of law that no litigant can, as a matter of right, enforce remedies unless he becomes an ‘actor’/plaintiff/petitioner and institute petitions asserting his rights, bringing on the party array whom he considers to be contesting his rights, and make specific prayers/relief, which cannot be substituted by instituting a petition for impleadment as a respondent/intervener.
17. It is therefore imperative that the accompanying application for impleadment as additional Respondent (contesting) is allowed in the interest of justice.
18. All the facts stated above are true and correct to the best of my knowledge, information and belief and no material fact has been concealed.

Dated this the 4th day of October, 2021.
Deponent
Solemnly affirmed and signed by the deponent who is personally known to me in my office at Ernakulam on this the 4th day of October, 2021.
Mathews J. Nedumpara
Advocate

       BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
                                           IA             2021 
                       WRIT PETITION No.   of 2021

Petitioners/Addl.Respondents to be impleaded as R...

1…

Vs.
Respondents/Petitioners & Respondents

1. St.Mary’s Orthodox Syrian Church
   ….…………………
2. Fr.Aby Ulahannan, aged 36 yrs,
   ….…………………………………..
3. Jossy.Pjacob,
   ….……………………
4. John.P.Kuriakose
   ,,,,,,,,,,,,,,,,,,,,,,
5. The State of Kerala,
   Represented by its Chief Secretary,
   Government Secretariat
   Thiruvananthapuram – 695 001
6. The District Collector,
   ….………………
7. The State Police Chief,
   ….……………….
8. The District Police Chief,
   ….……………………….
9. The Deputy Superintendent of Police,
   ….…………….
10. The Station House Officer,
    ……………………………..
11. P.M.Poulose,
    ….…………….
12. Biju.M.Paul,
    ….…………
13. Johny Varghese,
    ….…………..
14. Philip,
    ……………………
15. Benny,
    ….……………
16. Fr. Binu Yohannan,
    ….………………….
    PETITION FOR IMPLEADMENT U/S 152 OF THE KERALA HIGH COURT RULES

For the reasons stated in the accompanying affidavit and those to be urged at the time of hearing, it is most humbly prayed that this Hon’ble Court be graciously pleased to:

(a) Permit the Petitioners to intervene in the above writ petition and oppose the same as the true contesting Respondents, the instant Petitioners being the true stakeholders.

(b) pass such further and other orders as the nature and circumstances of the case may require.

                  Dated this 4th day of October, 2021


                                            Counsel for the Petitioners




  BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
                                         IA             2021 
                     WRIT PETITION No.  27219 of 2019  

PETITION FOR IMPLEADMENT U/S 152 OF THE KERALA HIGH
COURT RULES

Advocates

MATHEWS J NEDUMPARA (M-185)(K/369/84)
MARIA NEDUMPARA (K/1527/2019)
ABDUL JABBARUDEEN M (K/0750/2018)