THE FOLLOWING IS THE FULL TEXT OF THE APPEAL FILED BY THE
TRUSTEE AND COMMITTEE MEMBERS OF THE KATHIPADADAM CHURCH BEFORE THE
DIVISION BENCH OF KERALA HIGH COURT.

BEFORE TE HONORABLE HIGH COURT OF KERALA, ERNAKULAM

W.A. No. OF 2007

[Against the Judgment dated 28.2.2007 in W.P.[C] 28865 OF 2006 ]

BETWEEN

APPELLANTS/RESPONDE NTS 6 TO 14

1. Kurian Kurian, s/o Kurian, Kalluvettamkuzzzhiy il, Keerithode [PO],
Idukki District

2. Reji Paul, Pottankulangarayil, Churuli, Chelachuvadu, Idikki District,

3. Mathew Ulahannan, Vettuchirayil House, do, do,

4. Kuriakose Edappattu, s/o Paulose, Keerithode, Idukki, District,

5. Eldhose Ulahannan, Vettuchirayil House, Chelachuvadu, Idukki,

6. Paulose Nedungattukudiyil, son of Kurian, Pazhayarikandam, Idukki,

7. Varghese Kanjirakkat, son of Kurian, Chelachuvadu, Idukki,

8. Elias Mundaplakkal, son of Kuriakose, do, do,

9. Joy Thottiyil, son of Varghese, Pazhayarikandam, Idukki,

ADDRESS FOR SERVICE ON THE APPELLANTS IS THAT OF THEIR COUNSEL
PHILIP.P.J, 51/415, CHILAVANNOOR ROAD, COCHIN-682020

RESPONDENTS/ WRIT PETITIONERS 1 & 2 AND RESPONDENTS 1 TO 5 [ AS
DESCRIBED BY THE WRIT PETITIONERS IN THE WRIT PETITION ]

1. St George Orthodox Syrian Church, Kathipparathdadam, Chelachuvadu
PO, Idukki-685606, represented by its Trustee @ S/O Scaria, aged 48,
residing at Chirakkachalil House, Keerithodu, Idukki,

2. Fr K.K.Varghese, Vicar, St George Orthodox Syrian Church,
Kathipparathdadam Chelachuvadu PO, Idukki-685606.

3. State of Kerala, represented by its Secretary,[Revenue Department],
Govt. Secretariat, Trivandrum,

4. The District Collector, Pynavu, Idukki,

5. P K Gopinathan, Additional District Magistrate, Pynavu, Idukki,

6. P E Vijayakumar, Revenue Divisional Officer, Pynavu, Idukki,

7. The Sub Divisional Magistrate, Pynavu, Idukki,

WRIT APPEAL FILED BY THE ABOVE NAMED APPELLANTS UNDER SECTION 5 [ii]
OF THE KERALA HIGH COURT ACT

STATEMENT OF FACTS

1. The Writ Appeal is filed challenging the judgment of a learned
Single Judge of this Honorable Court rendered on 28.2.2007 allowing
W.P. [C] 28865 OF 2006. The Writ Petition was instituted for a Writ of
mandamus or other appropriate directions to hand over the keys of the
first respondent church to the second respondent herein/ second Writ
Petitioner in 28865 OF 2006,

2. The impugned judgment especially at paragraphs 6 to 11 have entered
findings that are directly contrary to those entered by a
Division Bench of this Honorable Court in its judgment reported as
2003 [1] KLT 780 in OP 22946 OF 2002,

3. The petitioners filed the Writ Petition in effect challenging
Exhibit P4 AND Exhibit P6 orders issued by the Sub Divisional
Magistrate, Idukki, under Section 145[1] of the Criminal Procedure
Code, 1973.The action of the fifth respondent taking the keys of the
church after preparing Exhibit P9 inventory is also challenged on the
ground that it is not preceeeded by any legal order,

4. The petitioners got themselves impleaded as additional respondents
6 to 14 by filing IA No 15700 of 2006 and IA 15892 of
2006. The sixth respondent in the Writ Petition/first petitioner
herein filed Counter affidavit on 14.112006 producing Exhibits R6[a]
to R5[e]. The petitioners herein filed their counter affidavit
substantially adopting the contentions in the above counter affidavit.
The petitioners filed a statement on 29.11.2006 producing
the copy of the plaint in OS No 126 of 2006 and IA No 1190 of 2006
therein of the Subordinate Judge's Court, Kattappana.The said suit
and injunction application were instituted by the first respondent
herein relating to the question of the right to conduct religious
services in the said Church,

5. The third respondent filed their statement on behalf of fourth and
fifth respondents also defending their actions and producing Annexure
R3 [a], an order issued under Section 144[1] & [3]of the Criminal
Procedure, 1973.

6. The petitioners thereafter filed IA Nos 17674/206, 17761/2006 and
17838 /2006 producing Exhibits R6 [f] to R6 [k]. This was followed by
a reply affidavit by the Writ Petitioners on 21/12/2006 producing
Exhibits P10 to P15,

7. The petitioner also instituted Writ Petition 32114 of 2006 for a
Writ of Mandamus directing respondents 1 to 5 therein to hand over the
keys of the St George Jacobite Syrian Church, Kathiparathadam to them.
Both the Writ Petitions were disposed off by the impugned judgement
allowing the Writ Petition 28865 of 2006 and dismissing Writ Petition
31114 of 2006 on 28.2.2007.

Being aggrieved by the said judgement, the Appellants are preferring
this Writ Appeal under Section 5 [ii] of the Kerala High Court Act on
the following Grounds among others;

GROUNDS.

1. The impugned judgement is illegal, incorrect and without jurisdiction,

2. The findings entered into at paragraphs 6 to 11 of the impugned
judgement are directly contrary to and violative of the binding
judgement of a Division Bench of this Honorable Court rendered in
O.P.No 22946 of 2002 ,reported in 2003[1]KLT 780,

3. The said finding also do not follow from the judgement of the
Honorable Supreme Court of India reported in AIR 1995 SC 2001. In fact
the impugned judgement is following the conclusions arrived at by the
Minority judgement in AIR 1995 SC 2001.

4. It ought to have been found that the Supreme Court of India
itself directed framing of the Decree without adopting any of the
findings of the Minority judgement in its order reported in AIR 1997
SC 1035.

5. The impugned judgement referred to the first respondent church as
been included as Sl.No 345 in Exhibit P4 IN OP No 22946 of 2002 and
finds that the said church was described as an Orthodox Church
governed by the 1934, Constitution. There is no such finding in
2003[1] KLT 780. The description in P4 given by the petitioners
therein ought not to have been relied upon as a circumstance to hold
that the first respondent church herein is governed by the 1934,
Constitution,

6. The impugned judgement is totally erroneous in relying upon the
findings of the Minority Judgement in AIR 1995 SC 2001 and finding
that the conclusions of the Division Bench of this Court in AS 331 and
AS 358 of 1980 and AS 362 of 1980 have been confirmed. AIR 1997 SC
1035 specifically says that the conclusions in the decree of this
Honorable Court in the said Appeals stand modified to the extent
specified by the Majority Judgement.

7. The reliance on the finding at paragraph 64 of the minority
judgement in AIR 1995 SC 2001 to the effect that the non impleadment
of the individual Parish Churches does not preclude the Court from
granting any declaration about the nature and status of parish
churches and then holding at paragraph 11 that the decision therein
will bind the Patriarch Churches, is openly contrary to the majority
judgement therein and also the findings of the Division Bench of this
Honorable Court in 2003[1] KLT 780,

8. The Judgement of the Division Bench of this Honorable Court has
held as follows at paragraph 27, page No 788 of 2003[1] KLT 780,

" 27.A perusal of the above observations shows that even though
Hon'ble Mr. Justice Sahai had expressed the view in paragraph 64 that
`it was not necessary to implead other Parish Churches as a party',
the majority was clearly of the view that no declaration could be
given to the prejudice of the Parish Churches in their absence. The
right of the Parish Churches to be heard, especially in the matter of
temporal affairs, was clearly recognized"

The findings in the impugned judgement of the Single Judge at
paragraphs 10 and 11, to the contrary is incorrect and is clearly
violative of the findings of the Division Bench in 2003[1]KLT 780,

9. The Judgement of the Division Bench of this Hono'ble Court reported
in 2003[1] KLT 780 at paragraph 57[1] concluded as follows,
viz:

"[i] The rights of the Parish Churches were not determined by the
Supreme Court in the 1995 decision. Thus, it cannot be said that the
contesting respondents have no right to manage their properties or
that the 1st petitioner has any right over the Churches which were not
parties in the case;"

[The first petitioner was the Catholicos of the Malankara Orthodox
Church.]

The findings of the impugned judgement in paragraphs 6 to 11 are
directly contrary to the above conclusion of the Division Bench.

10. The petitioners in OP 22946 of 2002 of this Honorable Court had
challenged judgement reported in 2003[1]KLT 780 before the Honorable
Supreme Court of India by filing Civil Appeal Nos 5460 to 5466 of 2004
with a request for stay of operation of its findings. The Apex Court
did not grant stay of operation of the findings of the Division Bench
reported in 2003[1] KLT 780. As such the findings thereon are binding
on the parties to the said Writ Petition and those who claim under them.

11. The findings of the Division Bench are not referred to and is not
even attempted to be distinguished by the impugned judgement. All the
findings in paragraphs 6 to 11 are liable to be set aside being
violative of the judgement of the Apex Court contained in the majority
judgement and reflected in the decree as mentioned in AIR 1997 SC 1035
and also that of the Division Bench reported in 2003 [1] KLT 780,

12. It should have been found that the findings in the majority
judgement of the Supreme Court excluding the properties of the Parish
Churches were itself rendered in a representative action and,
therefore, binding on the parties. It also should have been found that
the Apex Court held at paragraph 142 [10] that the common properties
[Samudaya Properties] held by the Malankara Church are vested in the
Malankara Metropolitan and others and, therefore, the properties of
the Parish Churches were not included. It is understood so and
specifically held in paragraph 35 at page No 790 of 2003 [1] KLT 780
by the Division Bench of this Honorable Court.

13. The findings in paragraphs 12 of the impugned judgement are based
on the wrong, illegal findings entered at paragraphs 6 to 11 and,
therefore, liable to be set aside,.

14. The impugned judgement does not advert to any of the documents
produced by the respondents 6 to 14 in the Writ Petition,

15. Having found at paragraph 12 on the basis of its understanding of
Exhibit P8 proceedings that there was no dispute regarding the
Vicarship of the second respondent herein, it was totally unnecessary
to enter findings referred to in paragraph 6 to 11,

16. It ought to have been found that the dispute relating to the
conduct of religious services in the Church is pending consideration
in OS No 126 of 2006 of the Subordinate Judge's Court, Kattappana and
as such ought not to have entered findings on the merit of the dispute
and that too contrary to the findings of the Division Bench in 2003[1]
KLT 780. The trial courts will be confused as to which judgement
should be followed. It ought to have been found that there are more
than fifty suits pending in the First Additional District Court,
Ernakulam and there are more than fifty First Appeals pending in this
Honorable Court involving similar issues,

17. Exhibit P8 proceedings having ended in failure should not have
been relied upon against the petitioners. None of the observations
therein are valid because the discussions ended in failure.

18. It ought to have been found that the second respondent herein was
removed from vicarship by a valid Kalpana [order] issued by the
metropolitan of Kandanad Diocese of the Jacobite Syrian Christian
Church and it has been accepted by as many as 110 of the 124 families
of the Church. The newly appointed Vicar is admittedly conducting
services in the Church. An order ejecting the holder of vicarship who
was accepted by the parishioners of the church ought not to have been
issued in a petition under Article 226 of the Constitution of India
challenging proceedings under Section 144 and 145 of the Criminal
Procedure, 1973, especially when a Civil Suit instituted by the first
respondent is pending.

19. The direction that the parishioners of the erstwhile Patriarch
faction will be entitled to offer prayers and attend services only if
they file a written undertaking before the second respondent herein
that they will not question the 1934, constitution or the authority of
the Catholicos to administer the Church in accordance with the
provisions of the 1934, Constitution, is violative of the fundamendal
right to freedom of Association guaranteed under Article 19[1][C] read
with Article 25 and 26 of the Constitution of India .

20. It ought to have been found that the majority of the parishioners
constituting the Parish Assembly of the Church have
associated to the Jacobite Syrian Christian Association by accepting
the Kalpana of Mathews Mar Evanios metropolitan of the Jacobite
Church. The impugned judgment is fundamentally erroneous in
identifying the Writ Petitioners and respondents 6 to 14 as members
of two rival groups in the Malankara Orthodox Church. The petitioners
herein/respondents 6 to 14 are representatives of the parishioners of
the St George Jacobite Syrian Church, Kathipadadam, who have
associated to the Jacobite Syrian Christian Association.

21. It ought to have been found that the above mentioned Church
consecrated only in 1977 was never a member of the Malankara
Association at any point of time. It was not a party to the suit,O S
No 142 of 1974 instituted by the Catholicos of the Malankara Orthodox
Church which was ultimately disposed off by the Apex Court by
judgments and orders reported in AIR 1995 SC 2001, AIR 1997 SC 3121
and AIR 1997 SC 1035 .

22. It ought to have been found that the attempt by the Catholicos and
the metropolitan of Kandanad East of the Malankara Orthodox Church to
implement the decisions of the Managing Committee of the Malankara
Association of the Malankara Orthodox Church to the first respondent
church by filing OP No 22946 of 2002 and including the first
respondent as item 346 in Exhibit P 4 therein ended in failure with
the dismissal of the same by 2003[1] KLT 780,

23. It should have been found that the proper procedure to challenge
Exhibits P4, P6 and R3[A] was to file Criminal Revision under Section
397 of the Criminal Procedure, 1973, and as such the Writ Petition is
not maintainable,

For the above and other reasons to be submitted at the time of hearing
this Honorable Court may be pleased to call for the records leading to
the judgement dated 28.2.2007 in W.P.[C] 288865 of 2006 of a Single
Judge , set aside the same and dismiss the said Writ Petition by
allowing this Writ Appeal with costs.

Dated this the 5th day of March, 2007.

ADVOCATE
FOR THE APPELLANTS
INTERIM RELIEF

For the reasons stated in the Writ Appeal and the affidavit in support
of the same, this Honorable Court may be pleased to stay the operation
of the judgement dated 28.2.2007 in W.P [C] 288865 of 2006 of a this
Honorable Court until the final disposal of the above Writ Appeal.

Dated this the 5th day of March, 2007.

ADVOCATE
FOR THE APPELLANTS

Presented on 08.03.2007.

Sub : Church matter Miscellaneous

BEFORE TE HONORABLE HIGH COURT OF KERALA, ERNAKULAM

W.A. No. OF 2007

[Against the Judgment dated 28.2.2007 in W.P.[C] 28865 OF 2006 ]

Kurian Kurian .. Appellants/Responde nts

Vs.
St George Orthodox
Church, Kathipparathdam,
Chelachuvadu [PO], Idukki,& ors.. Respondents/ Petitioners

WRIT APPEAL FILED BY THE ABOVE NAMED APPELLANTS UNDER SECTION 5 [ii]
OF THE KERALA HIGH COURT ACT

Mr PHILIP.P.J,

ADVOCATE

BEFORE TE HONORABLE HIGH COURT OF KERALA, ERNAKULAM

W.A. No. OF 2007

[Against the Judgment dated 28.2.2007 in W.P.[C] 28865 OF 2006 ]

Reji John & ors ..
Appellants/Responde nts 7 to 14
Vs.
St George Orthodox
Church, Kathipparathdam,
Chelachuvadu [PO], Idukki,& ors.. Respondents/ Petitioners 1&2 and
Respondents 1 to 6

BEFORE TE HONORABLE HIGH COURT OF KERALA, ERNAKULAM
W.A. [C] OF 2007
BETWEEN
Reji John & ors Petitioners/ Respondents 7 to 14
VS
St George Orthodox
Church, Kathipparathdam,
Chelachuvadu [PO], Idukki,& ors
Respondents/ Petitioners 1 and 2
and respondents 1 to 6
WRIT APPEAL under Section 5 [ii] of the High Court Act
challenging judgment dated 28.2.2007 in W.P.[C] 28865 of 2006


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