GEORGE DAVIS MOOKEN Vs. OLLUKARAN THOMAKUTTY VARIED
LAWS(KER)-1974-1-24
HIGH COURT OF KERALA
Decided on January 23,1974

George Davis Mooken Appellant
VERSUS
Ollukaran Thomakutty Varied Respondents

JUDGEMENT

GOPALAN NAMBIAR, J. - (1.) O . S. No. 8 of 1965 on the file of the Additional District Court. Trichur, was a representative suit, under Order 1, Rule 8 of the Civil Procedure Code by two members of the Church of the East in India, - - referred to as the Chaldean Church, - - for a permanent injunction restraining the 1st defendant from functioning as Metropolitan of the Church and for delivery of possession of certain moveable belonging to the Church either to the plaintiffs or to the Receiver appointed by Court. On the allegation that the 1st defendant had brought into being an elected body which was not proper or valid, another suit, O. S. No. 1061 of 1962, Munsiffs Court, Trichur, had been filed, and a Receiver had been appointed in the said suit. The present suit was instituted on 12 -8 -1965. The sole defendant died on 7 -9 -1969 at Baghdad. Thereupon, the 2nd defendant, the appellant in this appeal, was implead -ed as legal representative by order on M. P. No. 813 of 1969 dated 11 -3 -1970. According to the plaintiff, the Patriarch of the Church, Mar Eshai Shimum XXIII, is the supreme authority of the Church of the East. It was he who had to ordain the Metropolitan, and who accordingly ordained, the 1st defendant in 1952 (paragraphs 3 (a) and (b) of the plaint). The 1st defendant was alleged to be creating dissensions and divisions among the followers of the Church, and vilifying the Patriarch by his writings. For these acts of insubordination and profanity, the 1st defendant was asked to appear before the Patriarch in San Francisco by Ext. P -4 letter dated 2 -7 -1963 by the first week of September. The 1st defendant replied by Ext. D -2 dated 16 -7 -1963 that it would not be possible for him to comply with the Patriarch's request within the time indicated. By Ext. P -5 dated 26 -8 -1963, the 1st defendant was told to proceed to Syria with his existing Syrian passport and funds of the Church, and that thereafter, the responsibility for his further transport to San Francisco would be of the Patriarch To this, the 1st defendant replied by Ext. D -3 dated 4 -9 -1963 pointing out the difficulties in the way of acceding to the suggestion. Then followed an order of suspension from the Patriarch, Ext. D -4 (same as Ext. P -6) dated 10 -1 -1964. Injunction was prayed for against the 1st defendant in view of this order of suspension passed by the Patriarch. The 1st defendant pleaded that the Patriarch had no power to suspend the Metropolitan, that the said power vested only in the Synodical Council, and that even if the power were there in the Patriarch, the seme had not been properly or validly exercised. On these pleadings, issues 1 and 2 were raised which were as follows: '1 - Has the defendant been validly suspended by the Patriarch ?
(2.) IS his Holiness Patriarch by him self competent to suspend the defendant from his office as Metropolitan ?' 2 - The material prayers in the plaint are; '24. It is therefore prayed that the Hon'ble Court may be pleased to pass a decree: - - (a) restraining the defendant from acting or functioning as Metropolitan or from exercising any of the powers appertaining to his status as Metropolitan of the Church of the East including Ordi -nation of Clergy and using any of the Church Properties like the Sceptre, Crown, Gold Cross. Chain and Robes and religious books which have come to the custody of the defendant in his capacity as Metropolitan; (b) directing the defendant to deliver possession of the articles mentioned in para. 18 above to the plaintiffs on behalf of the Church or to Receiver appointed by the Court as aforesaid'. (The Receiver referred to herein is the Receiver appointed in O. S. 1061/62. Munsiff's Court, Trichur). The court below held that as, on the death of the 1st defendant, no relief of injunction was claimed against the 2nd defendant, the plaintiff was not entitled to this relief. It held that the suspension of the 1st defendant was valid and proper but left open the question of the validity of the appointment of the Administrator (C. I. Antony) by the Patriarch. In view of the suspension of the 1st defendant, it held that he had no power to ordain the 2nd defendant as Metropolitan, and on this short ground held that the 2nd defendant was not competent to act as Metropolitan or to retain custody of the religious books of the Church. A decree was granted against him to deliver possession of these books to the two Receivers in O. S No. 1061 of 1962.
(3.) WE should have thought that on the death of the 1st defendant, the prayers (a) and (b) and issues 1 and 2 alike, became academic. Neither of these were amended. But it was said that the 2nd defendant was impleaded as legal representative of the 1st defendant, and the litigation was continued against him as such, and therefore, no amendment of the plaint and the issues was necessary, Thus, controversies which should ordinarily be regarded as having been set at rest, were sought to be kept alive and agitated by hanging them on a convenient peg of the legal representative character of the 1st defendant.;


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