Dismissed

P.v.Jacob v. Fr.K.T.Philip, Vicar

Kerala HC13 Jul 2016OP(C)/584/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition challenging the appointment of an Advocate Commissioner to inventory movable assets of a church held by a trustee. The court held that deputation was incident to litigation to protect public trust assets and found no perversity in the lower court's order.

What did the court decide?

The Original Petition (Civil) No. 584 of 2016 was dismissed; the order of the lower court deputation of a Commissioner was upheld.

P.v.Jacob Vs Fr.K.T.Philip, Vicar — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938

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OP(C).No. 584 of 2016 (O)

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IA NO. 5467/2015 IN OS NO. 29/2014 OF II ADDL. DISTRICT COURT, ERNAKULAM

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PETITIONERS/RESPONDENTS NO. 1 TO 7 & 9/DEFENDANT NO. 1 TO 7 & 9 :

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1. P.V. JACOB

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S/O.VARGHESE, PUTHUSSERY HOUSE, CHERAI-683514

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[SHOWN AS KAIKARAN OF ST.MARY'S ORTHODOX SYRIAN CHURCH IN THE IMPUGNED ORDER]

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2. E.K.THOMAS,

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S/O.KORATH, ERALIL HOUSE, NEAR SAMOOHAM SCHOOL, N. PARUR

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[SHOWN AS SECRETARY OF ST.MARY'S ORTHODOX SYRIAN CHURCH IN THE IMPUGNED ORDER]

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E.K.VARGHESE, S/O.KUNJU VARKEY, ERALIL HOUSE, CHERAI, PIN-683514.

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4. GEORGE ABRAHAM ALIAS ITTIYACHAN [SHOWN AS ABRAHAM VARKEY ALIAS ITTIYACHAN

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IN THE IMPUGNED ORDER] S/O.VARKEY, MAZHUVANCHERYPAPARAMBATH HOUSE, CHERAI, PIN-683514.

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5. THOMAS ITTAN, S/O.ITTAN PILLAI, KADAVIL HOUSE, CHERAI, PIN-683514.

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6. AJIMON VARGHESE,

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S/O.VARGHESE, PUTHUSSERIYIL HOUSE, CHERAI, PIN-683514.

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K.M.THOMAS,

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S/O.MATHAN, KOCHAKKAN HOUSE, CHERAI, PIN-683514.

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8. BABY COR-EPISCOPA, KATTUMANGATTU EACHARAVELIL, PERUMPILLY POST, MULAMTHURUTHY, ERNAKULAM DISTRICT.

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P.

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...2/-

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OP(C).No. 584 of 2016 (O) -2-

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RESPONDENTS/PETITIONERS & RESPONDENT 8 / PLAINTIFFS & DEFENDANT NO. 8 :

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1.	FR. K.T. PHILIP,
	VICAR, ST.MARY'S ORTHODOX CHURCH, CHERAI [WRONGLY SHOWN AS VICAR IN THE IMPUGNED ORDER] ERNAKULAM DISTRICT-683 514.
2.	AUBERY ABRAHAM ISSAC M., S/O.DR.M.ISSAC ABRAHAM, ADVOCATE, CHEENATH HOUSE, CHERAI, PIN-683514.
3.	PAUL K.MANI, S/O.ITTIMANI, BUSINESS, KOCHAKKAN HOUSE, CHERAI, PIN-683514.
4.	M.K.GOERGE, S/O.KUNJU KUNJU, MULERICKAL HOUSE, CHERAI, PIN-683514.
	R1 TO R3 BY SENIOR ADVOCATE SRI.S.SREEKUMAR BY ADV. SRI.L.RAM MOHAN
	THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...3/-

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OP(C).No. 584 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.29/2014 ON THE FILE OF DISTRICT COURT, ERNAKULAM.

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EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXT.P1 SUIT. EXT.P3: TRUE COPY OF THE ORDER DATED 29.11.2012 PASSED IN IA NO.2562/2012 IN AS NO.541/2002 ON THE FILE OF THIS HON'BLE COURT.

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EXT.P4: TRUE COPY OF IA NO.5467/2015 IN OS NO.29/2014 ON THE FILE OF DISTRICT COURT, ERNAKULAM.

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EXT.P5: TRUE COPY OF THE COUNTER AFFIDAVIT FILED AGAINST EXT.P4. EXT.P6: TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN IA 5465/2015 IN EXT.P1 SUIT.

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EXT.P7: TRUE COPY OF THE ORDER DATED 17.2.2016 PASSED IN IA NO.5467/2015 IN OS NO.29/2014 ON THE FILE OF II ADDITIONAL DISTRICT COURT, ERNAKULAM.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

K. HARILAL, J.

= = = = = = = = = = = = = = = = = O.P.(C) No. 584 of 2016

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- - - - - - -- - - - - - - - - - - - - - Dated this the 13th day of July, 2016

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J U D G M E N T

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The petitioners herein are respondents 1 to 7

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and 9 in I.A. No.5467 of 2015 in O.S. No.29 of 2014

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on the files of II Additional District Court, Ernakulam. They are defendant Nos.1 to 7 and 10 in the said suit. The respondents herein are the

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petitioners and the 8^th respondent in the Interlocutory Application and plaintiffs and defendant No.8 in the suit, respectively. This Original Petition (Civil) is filed, challenging the legality and correctness of Ext.P7 order passed in I.A. No.5467 of 2015 in the aforesaid Original Suit. 2. According to the respondents, the

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administration of the Church was entrusted with the Committee and the Trustee elected in accordance with

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the 1934 Constitution. Thereafter, no election was

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O.P.(C) No. 584 of 2016

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conducted and the Trustee elected as per order in I.A. No.2321 of 1994 continued the administration of

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the Church. Various misappropriation of the assets of the Church has been done by the 6^th respondent, claiming to be the Trustee, on the basis of the orders of this Court. Respondents 1 to 3, 6 and 7 and other parishioners belong to the erstwhile patriarch faction in the disputed Church clandestinely created Trust deed dated 03.10.2012, without any right or authority, with a view to take over the assets of the Church. Under the guise of Trust deed, the respondents are misappropriating the funds of the Church. The account is held in the name of M/s. Cherai St.Mary's Jacobite Syrian Orthodox Church Trust and the respondents are misappropriating the entire income of the Church.

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It is specifically averred that respondents

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O.P.(C) No. 584 of 2016

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-: 3 :-

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1 to 9 and their henchmen are trying to remove the

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records and the valuable ornaments kept in the

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strong room of the Church. According to the

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respondents, in the above circumstances, it is necessary to depute an Advocate Commissioner to prepare an inventory of the articles kept in the mempoottu (the strong room) and the iron safe of the Church based on the list of articles received by the 6^th respondent from the earlier Trustee.

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The 6^th respondent filed a counter

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affidavit, denying the allegations and apprehensions in the application filed by the respondents. According to them, funds which were in the custody of the Church have been deposited in the name of the Trust in accordance with the advice from experts and there is no difficulty for redepositing the said

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amount in the name of the Church itself. The 6^th

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O.P.(C) No. 584 of 2016

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-: 4 :-

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respondent did not do anything as of his own and he

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has done everything in accordance with the decision

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taken by the Managing Committee. There is no valid reason for deputing a Commissioner to ascertain the articles, which are being kept in the iron safe. Ultimately, the aim of the respondents is to belittle and defame the present Managing Committee. With the above contentions, the petitioners prayed for dismissing the application.

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After considering the rival pleas, the

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court below allowed the said application and deputed a Commissioner to prepare an inventory of the articles kept in the strong room and the iron safe of the Church.

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Heard the learned counsel for the

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petitioners and the learned counsel appearing for the respondents.

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O.P.(C) No. 584 of 2016

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-: 5 :-

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The learned counsel for the petitioners

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advanced arguments, assailing the reasonings,

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whereby the court below allowed the application and deputed a Commissioner to prepare an inventory of the articles. According to the learned counsel for the petitioners, the apprehension expressed in the application is unfounded. In view of the glorious back history of the Church, if a Commissioner is appointed, the same will belittle the reputation of the Church. It is also contended that they are ready to make an undertaking that the articles which are being kept in the iron safe will not be removed

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Per contra , the learned counsel appearing for the respondents advanced arguments, in support of the reasonings, whereby the court below allowed the application.

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The short point that arises for

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O.P.(C) No. 584 of 2016

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-: 6 :-

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consideration is, whether the court below is

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justified in deputing the Advocate Commissioner to prepare an inventory of the movable and other articles kept in the strong room and iron safe of the Church. The suit is instituted for prohibitory injunction, restraining the defendants from obstructing the 1^st plaintiff from convening a parish assembly as provided in the 1934 Constitution and for mandatory injunction, directing defendants 1 to 10 to hand over the administration of the Church

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and its property to the newly elected Parish Managing Committee. Their apprehension in the application is that the 6^th respondent claiming to be the Trustee of the plaint Church is misappropriating the income of the Church and the key of the Church building and strong room are in the custody of the 6^th respondent and the respondents are trying to

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O.P.(C) No. 584 of 2016

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-: 7 :-

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remove valuables and ornaments kept in the strong room. On the other hand, the objection raised by the petitioners is that if the petition is allowed it will belittle the reputation of the present Managing Committee and the petitioners can very well verify the Asset Register in order to ascertain the things kept in the strong room.

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Indisputably, the Church is a public religious and charitable Trust in the nature, as envisaged under Section 92 of the C.P.C. and the suit was filed under Section 92 of the C.P.C. It is not disputed that the 6^th respondent is holding the assets only as a Trustee. Needless to say, the members of the Trust are very much concerned with the Trust property i.e., its all assets movable and immovable. They have the right to know the particulars of all the assets of the Church. No

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O.P.(C) No. 584 of 2016

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-: 8 :-

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assets can be kept in dark. As rightly held by the court below being a public Trust, the assets are to be protected pending determination of the rights of parties. On the other hand, only contention is that the deputation of such a Commission to ascertain the movables in the strong room would belittle the reputation of the Church. This Court is of the view that the deputation of a Commission is an incident only during the course of litigation, which is going on. Therefore, no harm or prejudice will be caused to the petitioners, by allowing the application.

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That apart, the jurisdiction and power of

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this Court under Article 227 of the Constitution of India is not an appeal in disguise. This Court is not inclined to re-appreciate the findings of the court below and the scope and extent of interference is confined to the jurisdictional infirmity or

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O.P.(C) No. 584 of 2016

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-: 9 :-

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perversity in the findings. I do not find any kind

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of perversity or illegality in the reasoning, whereby the court below allowed the application. Therefore, this Court is inclined to dismiss the Original Petition (Civil) also.

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This Original Petition (Civil) is dismissed accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

P.v.Jacob v. Fr.K.T.Philip, Vicar

Case brief

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P.v.Jacob v. Fr.K.T.Philip, Vicar

Case brief

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