Protection of faith

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Sub: Protection of faith
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                                       WRIT APPEAL              2021

In
WRIT PETITION No. 27219 of 2019 B

(Against the order dated 05.10.2021 in  WP(civil) 27219 of 2019 of  a Ld. Single judge of this Hon’ble Court)
              Manu Kurian Thuruthel                : Appellant /Addl. Respondent to be        
                                                                     impleaded as R13

St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & Respondents
MEMORANDUM OF WRIT APPEAL FILED UNDER SECTION 5 OF THE KERALA HIGH COURT ACT, 1958

Advocates
MATHEWS J NEDUMPARA (M-185)(K/369/84)
MARIA NEDUMPARA (K/1527/2019)
ABDUL JABBARUDEEN M (K/0750/2018)
806, KHCAA Chamber Complex,
Near High Court of Kerala, Marine Drive,
Kochi-682031,Mob:9820535428

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                                       WRIT APPEAL              2021

In

                                WRIT PETITION No.  27219 of 2019    B

(Against the order dated 05.10.2021 in  WP(civil) 27219 of 2019 of  a Ld. Single judge of this Hon’ble Court)
              Manu Kurian Thuruthel                : Appellant /Addl. Respondent to be        
                                                                     impleaded as R13

St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & Respondents
INDEX
Sl.No Pages

  1. Synopsis
  2. Memorandum of Writ Appeal
  3. Affidavit
  4. Certified copy of the order dated 05.10.2021 in WP (civil) 27219 of 2019
  5. True copy of the WP (civil) 27219 of 2019
  6. True copy of the IA 1 /2021 in WP (civil) 27219 of 2019 Dated this the 21st day of December, 2020 Counsel for Appellant

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                                       WRIT APPEAL              2021

In
WRIT PETITION No. 27219 of 2019 B
Manu Kurian Thuruthel : Appellant /Addl. Respondent to be
impleaded as R13

St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & Respondents
SYNOPSIS
The instant appeal is directed against the order of the Ld. Single judge (Hon’ble Mr. Justice Devan Ramachandran) in a batch of writ petitions filed by thr Orthodox faction. The reliefs sought for in the writ petition cannot be granted in exercise of the equitable jurisdiction which is in the realm of a remedy in personam which could only be maintainable in a Civil Court in a suit of a representative nature. Moreover, His Lordship, Mr. Justice Devan Ramachandran could not have heard the writ petition in view of the doctrine of nemo debet esse judex in propria sua causa. On the merits of the case the impugned order of the Ld. Single judge is bad in law because the Hon’ble judge had even failed to record in full the contentions of the Appellant’s counsel, leading to grave miscarriage of justice.
CHRONOLOGY OF EVENTS
Date

05.10.2021 Event

order passed by the Single Bench of this Hon’ble Court in WP (civil) no. 27219 of 2019;

ACTS/ RULES TO BE REFERRED:
Constitution of India, Article 14, 19, 21, 25 & 26.
Dated this 20th day of October, 2021
Counsel for Petitioners Appellant

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                                       WRIT APPEAL              2021

In

                                WRIT PETITION No.  27219 of 2019    B

(Against the order dated 05.10.2021 in  WP(civil) 27219 of 2019 of  a Ld. Single judge of this Hon’ble Court)

Appellant /Addl. Respondent to be impleaded as R13
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
Vs.
Respondents/Petitioners & Respondents

  1. St.Mary’s Orthodox Syrian Church’,
    Poothrikka Kara, Aikaranadu South Village’ Kunnathunadu Taluk,
    PIN- 682308. Rep. By its Vikar,
  2. Fr. Aby Ulahannan.,S/o. Ulahannan, Parachalil House,
    Thattakuzha.P.O.,Thodupuzha Vicar, St.Mary’s Syrian Orthodox
    Church,Poothrikka Kara-682308.
  3. Jossy.P.Jacob, aged 48 years, S/o. K.J.Chacko, Chettikuzhiyil House,
    (Kavanamolayil) Poothrikka Kara, Aikkaranadu South Village,
    Kunnathunadu Taluk,-682308
  4. John.P.Kuriakose, aged 64 years, Thozhuthunkal House,
    Poothrikka kara, Aikkaranadu South Village,
    Kunnathunadu Taluk,-682308
  5. The State of Kerala, Represented by its Chief Secretary,
    Government Secretariat, Thiruvananthapuram – 695 001.
    6 The District Collector,Ernakulam,
    Civil Station Kakkanadu-682030
  6. The State Police Chief,
    Police Head Quarters, Thiruvanathapuram-695 001.
  7. The District Police Chief, Ernakulam Rural
    Office of the District Police Chief, Aluva- 683 101.
  8. The Deputy Superintendent of Police,
    DYSP Office,Muvattupuzha-686 661
  9. The Station House Officer,
    Puthencuz Police Station, Puthencruz-682308.
  10. P.M.Poulose, S/o. Markose, Pulichottil House,
    Poothrikka , Aikkaranadu South Village, Kunnathunadu Taluk,-686 662
  11. Biju.M.Paul, S/o. Poulose,
    Mullakkal House, Poothrikka. P.O.-682308
  12. Johny Varghese, S/o.Varghese,
    Mandenkuzhiyil House, Poothrikka. P.O.-682308
  13. Philip, S/o.Kuriakose,
    Thozhuthunkal House, Poothrikka. P.O.-682308
  14. Benny, S/o Kurian,
    Kupplasseri House, Poothrikka. P.O.-682308
  15. Fr. Binu Yohannan,Chundakkattumalayil House,
    Kunnakkal.Ernakulam Dt. P.O.-682308

Address for service of Appellants is that of his Counsel MATHEWS J NEDUMPARA, MARIA NEDUMPARA , AND ABDUL JABBARUDEEN M Advocates Room No 806, KHCAA Chamber Complex, High Court of Kerala, Marine Drive, Kochi- 682031, 9820535428/9447165650. Address for service of respondents is in the above shown addresses of respondents respectively unless engaged by any lawyer
MEMORANDUM OF WRIT APPEAL FILED UNDER SECTION 5 OF THE KERALA HIGH COURT ACT, 1958

BEING aggrieved and dissatisfied by the judgment and order dated 05.10.2021 passed by the learned Single Bench of this Hon’ble Court (Honourable Justice Devan Ramachandran) in WP (civil) no. 27219 of 2019, the Appellant begs to prefer the Appeal on the Following grounds amongst other ground which are without prejudice to each other and alternative to each other, which are itemized immediately after the brief facts.
STATEMENTS OF FACTS

  1. The appellant filed a petition for impleadment as a third party to the proceedings and to oppose the same because he was made to understand and bona fide believes that the Respondents in the writ petition and other connected writ petitions which were listed for hearing on 5.10.2021, before a Ld. Single judge of this Court, namely, the bench of Hon’ble Justice Devan Ramachandran, are not going to be contested earnestly. The appellant has reason to believe, which for considerations of reticence he refrains from elaborating, that the state government and the leadership of the Jacobite Church have 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, as a mere make-believe, proclaim the Patriarch of Antioch to be the spiritual head of their church, namely, the Malankara Orthodox Church, and the continue to capture the churches in the name of the judgments of the Supreme Court. The said judgments, unthinkable though, have declared that the spiritual powers of the Patriarch of Antioch have ‘reached a vanishing point’, trenching into the forbidden domain of adjudicating upon faith, failing to notice that whether the Patriarch is bestowed of the spiritual powers as a successor of St. Peter or not, is a matter for the faithful to accept or deny.
  2. The Appellant 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 Appellant, 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 Appellant 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.
  3. 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 breakaway 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 Appellant is afraid to say.
  4. The scenario today is frightening. A Ld. Single judge of this Court (Hon’ble Mr. Justice Devan Ramachandran) as the Appellant had apprehended, by his order dated 5.10.2021 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) 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.
  5. The Appellant 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.
  6. 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 Appellant is made to understand that a 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 Appellant 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 section of the leadership of the Jacobite faction, the Orthodox faction and the Government.
  7. 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 Appellant is allowed to intervene as a third party to the proceedings and bring before this Court the true facts and legal position. It was in the above premise that the Appellant sought impleadment as a third party to the proceedings, literally to represent the millions of Jacobites who believe in the spiritual supremacy of the Patriarch of Antioch, though the Appellant cannot claim any right to represent them. The scenario is unenviable, the Appellant has no right to represent the millions of Jacobites, but only himself as a person aggrieved. The humble attempt of the Appellant is to point out that a scenario as the instant one where the writ petitioners could seek, seemingly without any impediment, orders adversely affecting the rights, even fundamental rights of the millions of Jacobites, because nobody has raised the very maintainability of the writ petition. The writ jurisdiction is an equitable jurisdiction and the remedies that could be granted are enforceable in personam. The remedies sought in the instant is against the millions of Jacobite Christians who consider the Orthodox faction to be heretics and the so-called 1934 constitution to be nothing but a piece of paper carrying no authority. The Orthodox faction, therefore, could not have, in law, instituted the writ petition at all. What is permissible in law for them is to institute a representative suit as contemplated under Section 92 of the CPC with the permission of the Court in which case the Petitioner and millions of Jacobite Christians like him could enter appearance and contest the suit. To repeat, for emphasis, the aforesaid writ petitions of the Orthodox faction are wholly unmaintainable, for the remedies sought by them can only be sought in a representative suit.
  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 Samudhayam 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 Samudhayam 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 warring 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 Samudhayam 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 initio. 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. It was in this dreadful scenario, where even this Court failed 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, that the Appellant sought impleadment.
  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 became imperative for the Appellant to seek intervention and oppose any relief being granted in the aforesaid writ petition, and to seek its dismissal forthwith, on all grounds and in particular, on the ground of non-maintainability, for a suit alone could have been maintainable. The issues which the Appellant has raised have far reaching ramifications, and if patiently heard and recorded, which is what is expected a Court, that would have meant correction of a grave injury, resulting out of an erroneous, nay, void judgments spanning over a century. The point which the Appellant sought to make are thus:

a) the church litigation spanning over a century, undoubtedly one of the most unfortunate and sad episodes of the history of the Kerala Church, is entirely due to the failure to comprehend the true meaning of the word res judicata and constructive res judicata. In the Vattipanam case, a dispute as to the rights over Rs. 10,000 in deposit with the British treasury between two factions of the Malankara Association came to be decided in favour of the Orthodox faction on the Court holding that the spiritual powers of the Patriarch of Antioch has reached a vanishing point, thereby adjudicating upon faith for which the Court had no jurisdiction.
b) The Samudhayam case was all about the spiritual and temporal administration of the thousand and odd churches of the Malankara Church in accordance with the 1934 constitution. It had nothing to do with the Vattipanam case, the cause of action being entirely different. In such a suit the thousand and odd churches and its trustees were a necessary party, and the nature of remedies sought are remedies in rem, and not in personam. Besides the churches, the parishioners had a right to take part in the litigation as plaintiff or defendants. If in the Samudhayam case, the churches or its trustees were joined as parties, so too, if the parishioners had an opportunity to partake in the litigation, the decision of the Court, whether right or wrong, will be binding on them as res judicata. However, since not even a single church was joined as a party, much less its trustees or parishioners, the judgment of the 5-judge constitution bench of the Supreme Court in the Samudhayam case is not binding on any of the churches or its trustees. There can be no two opinions about it because unlike a record of a Parliament, the record of a court, namely, judgment or order, is binding only on the parties, and nobody else. Unfortunately, this grave error in the judgment of the 5-judge constitution bench went unnoticed till the instant Appellant’s counsel (Adv. Nedumpara) realized it and repeatedly brought it to the notice of this Court, whenever and wherever he was engaged.
c) A 3-judge bench of the Supreme Court in 1995 (P.M.A Metropolitan case) and a 2-judge bench of the Supreme Court in 2017 (K.S Varghese’s case) failed to take notice of the aforesaid fundamental flaw of the judgment of the constitution bench, and therefore that the said judgment constitutes to be no res judicata in so far as the thousand and odd churches, its trustees and the laities are concerned, and that the 1934 constitution by which the constitution bench had held that the churches are to be administered constitutes to be no binding mandate, to emphasis, the 1934 constitution is a mere piece of paper which has no authority of law. For removal of doubts, the Appellant begs to submit that if the thousand and odd churches, its trustees and the laity in a representative capacity were heard, then the judgment of the constitution bench, no matter right or wrong, is final, authoritative and binding as res judicata. The fundamental error in the Samudhayam case, far from being rectified, came to be reaffirmed in the judgments of 1995 and 2017, because nobody brought to the notice of the Court, the grave error arising solely out of the misconception of the doctrine of res judicata.
d) The Appellant believes that the errors that had rendered the judgments of the Supreme Court of 1958, 1995 and 2017 are all due to human error, by accident, solely on account of the failure to comprehend the true meaning and import of the doctrine of res judicata. In K.S Varghese of 2017, there were only three churches, namely, Kollenchery, Varikoli and Mannathur. None of these churches were parties to the Samudhayam case of 1958 and, therefore, were not bound by the said judgement, and therefore, not bound by the 1934 constitution. Each of the said churches are independent legal entities, governed by its trust deeds and traditions. They have nothing to do with the 1934 constitution. Yet, the bench of Justice Arun Mishra in K.S Varghese 2017 mistakenly treating the judgment of 1958 as res judicata, not noticing that they were not parties, held that the said churches were bound by the said judgment and that the affairs of the churches are to be governed by the 1934 constitution. This judgement (2017) was rendered void ab initio. Yet, it was enforced and the Orthodox faction forcefully took over three said churches which belonged to the Jacobite faction.
e) What happened after the K.S Varghese judgment of 2017 would shock the conscience of this Court, so too, every right-thinking person, lawyers and jurists all over the world. In K.S Varghese of 2017, the bench of Justice Mishra, erroneously held that the K.S Varghese case being one arising out of three representative suits, that judgment will be binding on all churches, even those which are not parties to the case, the judgment in a representative suit constituting to be constructive res judicata. The term constructive res judicata was failed to be understood in its true import and meaning. The doctrine of constructive res judicata does not mean that a judgment in a case between A and B will bind C and D who were not parties. It only means that in a suit involving a large number of people, where it is conducted in a representative capacity, observing the requirements of Section 92 Order I Rule 8 of the CPC, the judgment or decree so rendered, is binding on all parties, not merely on those who were arrayed as Plaintiff and Defendants, but on all one whose behalf the suit was conducted. K.S Varghese being one arising out of representative suits, would certainly be binding on the parishioners of Kollenchery, Varikoli and Mannathur churches, though they were personally not parties.
f) K.S Varghese was a grave error, but strangely nobody realized it or pointed it out, as a result thereof, in Fr. Issac Mattammel Cor Episcopa v. St. Marys Orthodox Syrian Church (2019), the bench of Justice Mishra went on to pass further orders saying that K.S Varghese is binding on all churches and that the affairs of the entire Malankara churches are to be governed according to the 1934 constitution. K.S Varghese, and for that matter the Plaintiffs and Defendants in the three suits which has resulted in the judgments of 2017, never claimed that they represent the entire Malankara Syrian Christian community or that the suit was instituted on their behalf. The three suits which have culminated in the judgment of the Supreme Court in K.S Varghese were concerning the spiritual and temporal administration of the three churches, namely, Kollenchery, Varikoli, Mannathur and none else. Yet, the Supreme Court in K.S Varghese of 2017 and Issac Mattammel of 2019, went on to observe that the affairs of the entire Malankara Syrian Christian community shall be governed by the judgment in K.S Varghese and ors., that there is no scope for any further litigation and that all the churches are to be governed by the 1934 constitution. The Supreme Court erred in saying so and the error was no grave and manifest. Yet, nobody ever brought to the notice of the court that the affairs of the churches can only be governed by the constitution of the individual churches and not by the 1934 constitution. The various division benches of this Hon’ble Court, as a fallout of the human error in failing to comprehend the true meaning and import of the doctrine of res judicata, directed the churches of the Jacobites to be taken forceful possession by the Orthodox faction, the heretics.
g) It is at this stage that the faithful, through their counsel (Adv. Nedumpara) brought to the notice of the Court the grave error as stated in great detail above, and the unfortunate scenario where this Court, the protector and guardian of the fundamental rights of the citizen, itself becoming an instrument of oppression. It is said, errare est humanam, to err is human. All human institutions are fallible, but the greatness of an institution is in acknowledging where it has erred and undoing injustice.

  1. The Appellant is afraid to say that the Ld. Singe judge of this Hon’ble Court had occasion to take notice of the grave error as stated above and to undo the injustice to which the Jacobite Christians have been subjected for long, and that was not difficult to be undone. All that was required was to record the contentions of the Appellant and to deal with the same, to accept it if it is tenable or reject it giving reasons as to why it is untenable. However, the Ld. Single judge did not record the plea of the Appellant that the Jacobite Christians are not bound by the 1934 constitution, nay, that the judgments of the Supreme Court of the years 1958, 1995, 2017 and 2019 are not binding on them as res judicata, and further that all the aforesaid writ petitions are liable to be dismissed, in limine, as not maintainable, this Court lacking in jurisdiction to entertain the same under Article 226.
  2. The Ld. Single judge (Hon’ble Mr. Justice Devan Ramachandran), the Appellant bona fide believes that is a coram non judice, in as much as he is disqualified from hearing the aforesaid writ petitions in as much as his Lordship was a lawyer for the Patriarch faction. The Orthodox faction, so far as the Appellant knows, has not raised any objection in his Lordship hearing and adjudicating the aforesaid batch of writ petitions. The Appellant believes that they are very unlikely to do so. So far as the Jacobites are concerned, there is a sense of anguish, in as much as, they believe that his Lordship, Hon’ble Mr. Justice Devan Ramachandran, on the merits, were to take a decision in their favour, the faithful of the Orthodox faction is all likely to raise eyebrows, namely, that his Lordship was the lawyer for the Patriarch faction and therefore his Lordship decided in favour of the Patriarch faction. On the other hand, if his Lordship were to decide in favour of the Orthodox faction, the faithful of the Patriarch faction would have reason for anguish, for they believe Hon’ble Mr. Justice Devan Ramachandran will be forced to decide against them, lest, his impartiality and objectivity will be questioned.
  3. It is a fundamental principle of law that justice should not only be done, but should manifestly and seeming be done (R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233). Nemo debet esse judex in propria causa, namely that nobody should be a judge of his own cause, is a fundamental principle of law. The legal system is founded on the principle that decisions of a court of competent jurisdiction, in accordance with law, rendered in observance of the principles of natural justice is binding on the parties, howsoever erroneous it could be. A judge is free to err within his jurisdiction, provided he acts within the bounds of law, observe the principles of natural justice. The necessary concomitant is that a judge should be absolutely independent and impartial, not only in reality, but in perception as well. A situation as in the instant one where the judge concerned has been involved in the case as a lawyer, witness or a party to the cause, is universally considered to fall within the ambit of the aforesaid maxim. His Lordship was not a party to any of the churches involved in the current batch of cases. But while being a lawyer, had represented the Patriarch faction. Therefore, the Appellant believes that it is not in consonance with the said doctrine for his Lordship, Hon’ble Mr. Justice Devan Ramachandran to hear and decide the aforesaid writ petition and connected cases. The bias often is subconscious, nonconscious and unconscious.
  4. The Appellant’s counsel felt that it was only his duty to raise the plea of bias and conflict of interest. However, to raise the said plea is an extremely unpleasant ordeal, though, from the point of jurisprudence, no lawyer should be hesitating to do so when it is his duty. However, the Appellant’s counsel did not have a chance to raise the said plea, because the Hon’ble Mr. Justice Devan Ramachandran made it expressly clear that he will not recuse. Whether to recuse or not falls in the exclusive province of the judge concerned. Though there is a duty on the part of the lawyer/litigant to raise it, lest he should be estopped from doing so later by doctrine of waiver.
  5. The Appellant begs to submit that the bias, even subconscious, is reflected in the order dated 5.10.2021, in as much as his lordship did not even record the plea of the Appellant’s counsel as detailed above that the affairs of each of the individual churches are to be governed by its individual constitution or trust deed, and not the 1934 constitution, and that that is an inviolable legal and constitutional right of the Appellants and millions of Jacobites, and that he present writ petitions are all liable to be dismissed in limine.
  6. The order of the Ld. Single judge dated 5.10.2021 is liable to be set aside, all the aforesaid writ petitions are liable to be dismissed, in limine, on the following among other:
    GROUNDS
    The grounds are elaborated in the statement of facts above, to repeat the same would be nothing but rendering this writ appeal needlessly voluminous. Nonetheless, it is stated in brief as infra.
    A. The Ld. Single judge (Hon’ble Mr. Justice Devan Ramachandran) ought to have recused himself from hearing the Writ Petition no. 27219 of 2019 from which the instant appeal arises and other connected writ petitions, since his Lordship as an advocate had appeared for the Jacobite faction, and therefore, his Lordship is a coram non judice, and the order dated 5.10.2021 is one rendered null and void ab initio. This ground is elaborated in paragraphs 17 to 20.
    B. The Writ Petition no. 27219 of 2019 from which the instant appeal arises and the connected cases are liable to be dismissed in limine, for a writ jurisdiction cannot be invoked for remedies which are in the nature of remedies of rem, the writ jurisdiction being an equitable jurisdiction, amenable to remedies in personam. The Respondents, the Orthodox faction, assuming without conceding in the least, that they have a right against the faithful of the Jacobites, that can be enforced only by way of instituting a suit before a civil court of competent jurisdiction, in a representative capacity, as contemplated under Section 92 Order 1 Rule 8.
    C. The affairs of each of the individual churches are to be governed by its individual constitution or trust deed, and not the 1934 constitution, that is an inviolable legal and constitutional right of the Appellants and millions of Jacobites, and that the judgments of the Supreme Court of 1958, 2017 and 2019 are not binding on the individual churches, it’s trustees and parishioners as res judicata, for not a single church out of the 1000 and odd churches was a party to the judgment of the Supreme Court of 1958. In the case of the judgments of 1995, 2017 and 2019, only a handful of churches were parties. This aspect is elaborated in paragraph 8 to 15 above.
    PRAYER
    For the reasons stated above and those to be urged at the time of hearing it is humbly prayed that this Hon’ble court be pleased to:
    a) Quash and set aside the order dated 5.10.2021 in WP (civil) no. 27219 of 2019 the same being null and void ab initio and non est in law;
    b) pending the hearing and final disposal of the above Appeal, stay the operation of the order dated 05.10.2021 passed by the Single Bench of this Hon’ble Court in WP (civil) no. 27219 of 2019;
    c) pass such further and other orders as the nature and circumstances of the case may require.
    Dated this 20th day of October, 2021 MATHEWS J NEDUMPARA Counsel for Appellant
    BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM WRIT APPEAL 2021 In
    WRIT PETITION No. 27219 of 2019 B
    Manu Kurian Thuruthel : Appellant /Addl. Respondent to be
    impleaded as R13

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 Appellant, I know the facts of the case and I do so on my behalf and am duly competent and authorized to do so.
  2. The accompanying Writ Appeal is filed against the order dated dated 05.10.2021 in WP (civil) no. 27219 of 2019 This Writ Appeal has been drafted by my counsel on my instructions. I have read and understood the contents of the same which are true and correct to my knowledge and belief. No fact of it is false and nothing material has been concealed there from.
  3. The appellant has not previously filed any other Appeal seeking similar or substantially similar reliefs sought for in this Writ Appeal.
    All the facts stated above are true and correct.
    Dated this 20th 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 20th day of October, 2021 Mathews J. Nedumpara Advocate
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