Full Judgment Text
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PETITIONER:
MORAN MAR BASSELIOS CATHOLICOS AND ANOTHER
Vs.
RESPONDENT:
THE MOST REV. MAR POULOSE ATHANASIUS AND OTHERS.
DATE OF JUDGMENT:
21/05/1954
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
DAS, SUDHI RANJAN
HASAN, GHULAM
CITATION:
1954 AIR 526 1955 SCR 520
CITATOR INFO :
RF 1959 SC 31 (18)
D 1970 SC 540 (11)
ACT:
Travancore Code of Civil Procedure (VIII of 1100)s. 87-
Review provisions-Similar to provisions of Order 47, rule 1
of the Code of Civil Procedure, 1908-Court’s misconception
of an alleged concession by advocate of a party -Remedy in
such a case-Error apparent on the face of the record-
Ejectment suit-Plaintiff’s duty -Travancore Regulation IV of
1099-United State of Travancore Cochin High Court Act V of
1125, s. 25-Constitution of India, arts. 214, 225-Appeal
filed before June, 1949, in Travancore High Court--Disposal
of-By the High Court of Part B State of Travancore-Cochin.
HEADNOTE:
The provisions of the Travancore Code of Civil Procedure are
similar in terms to Order 47, rule 1, of the Code of Civil
Procedure 1908 and an application for review is
circumscribed by the definitive limits fixed by the language
used therein.
The words "any other sufficient reason" mean a reason
sufficient on grounds at least analogous to those specified
in the rule.
It is well settled that in an ejectment suit the plaintiff
must succeed on the strength of his own title and not on the
weakness of the defendant’s case.
It is an error apparent on the face of the record if the
judgment does not deal effectively and determine an
important issue in the case on which depends the title of
the plaintiff and the maintainability of the suit.
To decide against a party on matters,which do not come with-
in the issues on which parties went to trial clearly amounts
to an error apparent on the face of the record.
Where the error complained of is that the Court assumed that
a concession had been made when in fact none had been made
or that the Court misconceived the terms of the concession
or the scope and extent of it or the attitude taken, up by
the party and has been misled by a misconception of such
alleged concession, such error must be regarded as a
sufficient reason analogous to an error on the face of the
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record within the meaning of Order 47, rule I of the Code of
Civil Procedure.
Such error will not generally appear on the record and will
have to be brought before the Court by means of an
affidavit.
A suit filed in 1938 in the Court of the District Judge at
Kottayam (Travancore) was dismissed, The plaintiff’s appeal
521
against the decree was allowed by a Full Bench of the High
Court of Travancore. A review application filed by the
defendants against the judgment on the ground that it
contained several mistakes or errors apparent on the face of
the record was dismissed by the High Court. The High Court
declined to grant a certificate under article 133. The
defendants were granted special leave to appeal by the
Supreme Court. Consequent upon political changes in India
culminating in the adoption of the new Constitution of
India, there were changes in the judicial administration in
the State of Travancore. Up to the end of June, 1949, the
Travancore High Court Act (Regulation IV of 1099) was in
force in the State of Travancore. Section 11 of the
Regulation provided that the judgments of a Full Bench from
the decrees of District Courts involving certain amount or
value of subject matter in suits as well as in appeals shall
be submitted to the Maharaja for confirmation by his Sign
Manual. Section 12 of the Regulation applied as far as may
be the provisions of section 11 to the judgments after
review. In May, 1949, came the Covenant of Merger between
the rulers of Travancore and Cochin which, inter alia,
provided for a Rajpramukh. In July, 1949, came Ordinance II
of 1124 repealing Regulation IV of 1099. Clause 25 of the
Ordinance provided that a Full Bench shall hear and decide
the appeals, inter alia, from the decrees of the District
Courts etc. involving certain amount or value of subject-
matter. Clause 26 related to a review of the judgment by a
Full Bench. The provisions relating to the jurisdiction and
powers of High Court were substantially reproduced in a
later Act (V of 11 25) and were Continued by articles 214
and 225 of the Constitution of India.
The advocate for the respondents contended in the Supreme
Court that the review application, in view of the changes
referred to above, had become infructuous and should have
been dismissed in limine, because even if the review
application were allowed there would be no authority with
jurisdiction and power to pronounce an effective judgment
after hearing the appeal. Again, this case was not decided
by a Full Bench under section 25 of the Act, and therefore
Do review was maintainable under section 26. And even if
the appeal be considered to have been filed under section 1
1 of Regulation IV of 1099, the application for review must
be dealt with under section 12 of the Regulation and a fresh
judgment after the review would have to be submitted under
section 11 to the Maharaja for confirmation by his Sign
Manual; and the present Maharaja of Travancore did not
possess the power to consider and to confirm or reject the
same.
Hold, (repelling the contention) that in view of the change
of the laws if the appeal were revived after the admission
of review, it must be disposed of under section 25 of Act V
of 1125 and that section did not require any confirmation of
the judgment passed on the rehearing of the appeal by the
Maharaja or Rajpramukh or Any other authority. Assuming
that the appeal, if restored,
67
522
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would be governed by section 12 of Regulation IV of 1099,
even then section 11 would have to be applied only "as far
as may be" and the portion of the section 11 requiring
confirmation by the Maharaja, would be inapplicable in view
of the events that had happened.
Chhajju Ram v. Neki (49 I.A. 144), Bisheshwar Pratap Sahi v.
Parath Nath (61 I. A. 3 78), Hari Shankar Pal v. Anath Nath
Mitter ([1949] F.C.R. 36), Sha Mulchand & Co. Ltd. v.
Tawahar Mills Ltd. ([1953] S.C.R. 351)), Beg v. Pestan-ji
Dingha and Another (10 Bom. H.C.R. 75), Madhu Sudan
Chowdhri v. Musammat Chandrabati Chowdhraizi ( (1917) 21
C.W.N. 897) ), Bekhanti Chinna Govinda Chettiyar v. S.
Varadappa Chettiyar (A.I.R. 1940 Mad. 17), and Rex v.
Northumberland Compensation Appeal Tribunal, Ex-Parte Shaw (
[1952] 2 K.B. 338) ) referred to.
The facts leading up to the appeal, as summarized from the
Judgment, are as follows. There were two rival sections of
the Malankara Jacobite Syrian Christian community in
Malabar, who came to be represented by the appellants and
respondents respectively. Certain disputes had arisen
between the two sections ; and each claimed the right to
possess and administer the Church properties to the
exclusion of the other.
In 1938, a suit was filed in the District Court of Kottayam
by the first and second respondents against the first and
second appellants.The plaintiff s contended that the
defendants had committed acts of heresy and became ipso
facto alien to the Malankara Jacobite Syrian Church. They
were, therefore, "’disqualified and unfit to be the trustees
of or to hold any other position in, or enjoy any benefit
from, the Jacobite Syrian Church" (para 26 of the plaint).
The District Judge, who heard the suit, held, by his
judgment delivered on the 18th January, 1943, amongst other
things, that the acts and conduct imputed to the defendants
did not amount to heresy or schism, or to voluntary
separation from the Church, and that in any event, according
to Canon Law, there could be no ipso facto going out of the
Church in the absence of a decision of an ecclesiastical
authority properly arrived at. The conclusion arrived at by
the District Judge was that the plaintiffs were not entitled
to maintain the suit, which was, therefore, dismissed.
Being aggrieved by the trial Court’s dismissal of the suit,
the plaintiffs appealed to the High Court of Travancore.
The appeal was heard by a Full Bench of the High Court,
consisting of three Judges, one of whom expressed a
dissenting view. On the 8th of August, 1946, the High Court
held, by a majority that the defendants had repudiated the
fundamental principles and tenets of the Malankara Jacobite
Syrian Church and had established a new Church and had
thereby voluntarily separated from, and ceased to be members
of, the Malankara Jacobite Syrian Church. The majority hold
that the plaintiffs and been validly elected as trustees and
as such were entitled to possession of the Church
523
properties. The appeal *as accordingly allowed and a decree
was passed for possession and other reliefs in favour of the
plaintiffs.
On the 22nd August, 1946, the defendants filed a petition
for review of the High Court’s judgment on the ground that
it contained several mistakes or errors apparent on the face
of the record and that in any event there were sufficient
reasons for the rehearing of the appeal. The application
for review was ultimately dealt with by the High Court on
merits on the 21st of December, 1951. The Court hearing the
review rejected all the points urged in favour of review and
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dismissed the application, holding that there was no error
apparent on the face of the record and that there were not
sufficient reasons for the rehearing of the appeal.
The High Court declined to grant leave to appeal to the
Supreme Court under article 133 of the Constitution;
whereupon the defendants applied for, and on the 14th April,
1952, obtained, special leave of the Supreme Court to prefer
an appeal against the High Court’s decision.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of 1952.
Appeal by Special Leave from the Judgment dated the 21st
-December, 1951, of the High Court of Judicature of
Travancore-Cochin arising out of the Judgment and Decree
dated the 18th January, -1943, of the Court of District
Judge, Kottayam.
N. P. Engineer (P. N. Bhagwati, M. Abraham and M. S. K.
Sastri, with him) for the appellants.
M.C. Setalvad, Attorney-General for India, C. K.
Daphtary, Solicitor-General for India, and K. P. Abraham (T.
R. Balakrishna Aiyar and M. R. Krishna Pillai, with them)
for respondent No. 2.
1954. May 21. The Judgment of the Court was delivered by
DAS J.-(After stating the circumstances which gave rise to
the present litigation, and the facts of the case, a brief
summary of which is given above, His Lordship proceeded as
follows).
It will be convenient at this stage to discuss and deal with
a preliminary point raised by the learned Attorney--General
appearing for the plaintiffs respondents. In order to
appreciate and deal with the point so raised it will be
necessary to take note of the changed conditions that bad
been brought about in the
524
matter of the judicial administration in the State by the
recent political changes culminating in the adoption of the
new Constitution of India. It will be recalled that the
present review application was made on the 22nd August,
1946, and a notice to show cause was issued on the 4th
December, 1947. The preliminary question as to the
maintainability of the review application was decided on the
29th June, 1949. During all this period Regulation IV of
1099 was in force in the State of Travancore. Section 1 1,
omitting the explanations which are not material for our
present purpose, and section 12 of that Regulation provided
as follows:
" 11. (1) A Full Bench shall hear and decide all appeals
from the decrees of the District Courts in suits in which
the amount or value of the subject-matter is not less than
five thousand rupees and the amount or value of the matter
in appeal is not less than that sum. The judgment of the
Full Bench or the judgment of the majority, if there be
difference of opinion, together with the records of the
case, shall be submitted to us in order that the judgment
may be confirmed by Our Sign Manual.
(2)Notwithstanding anything in the provisions of the Civil
Procedure Code, the date of the decree shall be the date on
which the judgment is declared in open Court after being
confirmed by Our Sign Manual.
Explanation I.....................
(a) ..............................
(b) ...............................
(e) ...............................
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Explanation II
12.In cases decided under section 11 of this Regulation a
Full Bench of the High Court may admit a review of judgment
subject to the provisions of the Code of Civil Procedure.
If, on review, a fresh judgment be passed, the provisions of
section 11 shall, as far as may be, apply."
It will be seen that under section 12 if a fresh judgment be
passed then the provisions of section 11 shall, as far as
possible, apply, that is to say, the judgment
525
shall have to be submitted to the Maharaja for confirmation
by his Sign Manual and the judgment so confirmed shall have
to be declared in open Court after such confirmation. This
was the position until the end of June, 1949. In the
meantime on the 29th May, 1949, came the Covenant of merger
between the Rulers of Travancore and Cochin with the
concurrence and guarantee of the then Governor-General of
India for the formation as from the 1st July, 1949, of the
United State of Travancore and Cochin with a common
Executive, Legislature and Judiciary. Article III provided
that as from the appointed day (i.e., 1st July, 1949) all
rights, authority and jurisdiction belonging to the Ruler of
either of the covenanting States which appertained or were
incidental to the Government of that State would vest in the
United State. Article IV enjoined that there should be a
Rajpramukh of the United State, the then Ruler of Travancore
being the first Rajpramukh during his lifetime. Broadly
speaking, articles VI and XI vested the executive and
legislative authority of the United State in the Rajpramukh
subject to the conditions and for the period therein
specified. Article XXI preserved the power of the Rulers to
suspend, remit or commute death sentences. In exercise of
the powers conferred on him by article XI of the Covenant
the Rajpramukh on the. 1st July, 1949, promulgated Ordinance
No. I of 1124. Clause 3 of that Ordinance continued in
force for that portion of the territories of the United
State which formerly formed the territory of the State of
Travancore all existing laws until altered, amended or
repealed. Similar provision was made in clause 4 for the
continuance of Cochin laws for that part of the United State
which formerly formed the State of Cochin. On the 7th July,
1949, however, came Ordinance No. II of 1124. Clause 4 of
this Ordinance repealed the Travancore High Court Act
(Regulation IV of 1099). The relevant part of clause 8
which is important for the purpose of the present discussion
was in the terms following:
"8. All proceedings commenced prior to the coming into force
of this Ordinance in either of the
526
High Courts of Travancore and Cochin, hereinafter in this
Ordinance referred to as the existing High Courts, shall be
continued and depend in the High Court as if they had
commenced in the High Court after such date.........."
The jurisdiction and powers of the High Court were defined
thus:
"18. Subject to the provisions of this Ordinance, the High
Court shall have and exercise all the jurisdiction and
powers vested in it by this and any other Ordinance and
under any law which may hereafter come into force and any
power or jurisdiction vested in the existing High Courts by
any Act or Proclamation in force in the States of Travancore
and Cochin immediately prior to the coming into force of
this Ordinance.
Clause 25 leaving out the two Explanations which are not
material for our present purpose and clause 26 ran as
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follows:-
"25. A Full Bench shall hear and decide all appeals from
the decrees of the District Courts or the Court of a
Subordinate Judge or of a Single Judge of the High Court in
Suits in which the amount or value of the subject-matter is
not less than five thousand rupees and the amount or value
of the matter in appeal is not less than that sum.
Explanation I................................
Explanation 11...............................
26. In cases decided under section 25 of this Ordinance, a
Full Bench of the High Court may admit a review of judgment
subject to the provisions of the Travancore and Cochin Codes
of Civil Procedure."
Clauses 18, 25 and 26 have been substantially reproduced in
sections 18(1), 25 and 26 of the United State of Travancore
and Cochin High Court Act 1125 (Act No. V of 1125) which
repealed, amongst other things, Regulation IV of 1099 and
Ordinance 11 of 1124. Then came the Constitution of India
in 1950 which created a union of several States grouped in
Parts A, B and C by the First Schedule. The United State of
Travancore-Cochin became one of the Part B States.
527
Under article 214 the High Court of the United State of
Travancore and Cochin became the High Court of the Part B
State of Travancore-Cochin and article 225 continued the
jurisdiction of and the laws administered in the then
existing High Court.
The contention of the learned Attorney-General is that in
view of the changes referred to above which had the effect
of setting up a common High Court for the United State of
Travancore and Cochin with jurisdiction and power defined
therein, the review application has become infructuous, for,
even if it be allowed, there will be no authority which will
have jurisdiction and power to pronounce an effective
judgment after rehearing the appeal. It is pointed out that
a review may be admitted under section 26 of the United
State of Travancore and Cochin High Court Act, 1125, only in
cases decided under section 25 of the Act. This case was
not decided by a Full Bench under section 25 of the Act and,
therefore no review is maintainable under section 26.
Further, if it be held that the appeal having been filed
under section 11 of the Travancore High Court Regulation (IV
of 1099), the application for review must be dealt with
under section 12 of that Regulation then, says the Attorney-
General, if after the review is admitted a fresh judgment
has to be passed after rehearing the appeal the provisions
of section 11 would have to be complied with, namely, the
fresh judgment will, under section 11, have to be submitted
to the Maharaja to be confirmed by his Sign Manual and the
decree will have to be dated as of the date on which the
judgment will be declared in open Court after such
confirmation. It is pointed out that the Maharaja of
Travancore no longer possesses the power to consider and to
confirm or reject judicial decisions and it is submitted
that such being the position in law the review application
had become infructuous and should have been dismissed by the
Full Bench in limine. In our opinion, this contention is
not well founded. The application for review was properly
made to the Travancore High Court and the Travancore High
Court had to decide whether to admit or to reject the
application. The judgment to be pronounced on
528
the application for review did not require, under any
provision of law to which our attention has been drawn, to
be confirmed by the Maharaja or any other authority. It was
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a proceeding properly instituted and was pending on the 1st
July, 1949, and consequently under section 8 of Ordinance
No. II of 1124 had to be continued in the High Court of the
United State as if it had commenced in the said High Court
after the coming into force of the said Ordinance. In this
case, the application for review was rejected by the High
Court. If, however, the High Court had admitted the review
then such admission would have had the effect of reviving
the original appeal which was properly filed in the
Travancore High Court under section 11 of the Travancore
High Court Regulation (IV of 1099). That appeal, so
revived, having been commenced prior to the coming into
force of Ordinance No. II of 1124 would, under section 8 of
that Ordinance, have had to be continued in the High Court
of the United State as if it had commenced in that High
Court after such date. The position will be the same if on
this appeal this Court now admits the review, for, upon such
admission the appeal filed in the Travancore High Court will
be revived and then, having been ’commenced in the
Travancore High Court and continued in the High Court of the
United State by virtue of section 8 of Ordinance No. II of
1124 the appeal so revived will, under section 8 of the Act
of 11.25, have to be continued in that High Court as if it
had commenced in that High Court after the coming into force
of that Act. In other words, the old appeal, if restored by
this Court on this appeal, will, by the combined operation
of section 8 of Ordinance 11 of 1124 and section 8 of the
Act of 1125, be an appeal pending in the High Court of the
United State. Under our present Constitution Travancore-
Cochin has become a Part B State and under article 214 the
High Court of the United State of Travancore-Cochin has
become the High Court of the Part B State of Travancore-
Cochin and shall have the jurisdiction to exercise all the
jurisdiction of and administer the law administered by the
High Court of the United State, Such appeal must,
accordingly, be
529
disposed of under section 25 of the last mentioned Act.
That section does not require any confirmation of the
judgment passed on the rehearing of the appeal by the
Maharaja or Rajpramukh or any other authority. Assuming,
however, that the appeal, if restored, will have to be
governed by section 12 of the Travancore High Court
Regulation (IV of 1099) even then the provisions of section
11 would have to be applied "as far as may be" and it may
well be suggested that the portion of section 11 which
requires the confirmation by the Maharaja will, in the
events that have happened, be inapplicable. In our opinion,
therefore, the preliminary objection cannot prevail and must
be rejected.
Before going into the merits of the case it is as well to
bear in mind the scope of the application for review which
has given rise to the present appeal. It is needless to
emphasise that the scope of an application for review is
much more restricted than that of an appeal. Under the
provisions in the Travancore Code of Civil Procedure which
is similar in terms to Order XLVII, rule I of our Code of
Civil Procedure, 1908, the Court of review has only a
limited jurisdiction circumscribed by the definitive limits
fixed by the language used therein. It may allow a review
on three specified, grounds, namely (i) discovery of new and
important matter or evidence which, after the exercise of
due diligence, was not within the applicant’s knowledge or
could not be produced by him at the time when the decree
was. passed, (ii) mistake or error apparent on the face of
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the record and (iii) for any other sufficient reason. It
has been held by the Judicial Committee that the words "any
other sufficient reason" must mean "a reason sufficient on
grounds, at least analogous to those specified in the rule."
See Chhajju Ram v. Neki(1). This conclusion was reiterated
by the Judicial Committee in Bisheshwar Pratap Sahi v.
Parath Nath(2) and was adopted by our Federal Court in Hari
Shankar Pal v. Anath Nath Mitter(3). Learned counsel
appearing in support of this appeal recognises the aforesaid
(1) L.R. 49 I.A. 144.
(2) L.R, 61 I.A. 378.
(3) (1949] F.C.R. 36 pp. 47-48,
68
530
limitations and submits that his case comes within the
ground of "mistake or error apparent on the face of the
record" or some ground analogous thereto. As already
observed, out of the 99 objections taken in the grounds of
review to the judgment of the majority of the High Court
only 15 objections were urged before the High Court on the
hearing of the application for review. Although most of
those points have been referred to by learned counsel for
the appellants, he mainly stressed three of them before us.
We now proceed to examine these objections.
The first objection relates to the validity of the election
of the first plaintiff as the Malankara Metropolitan and as
such the ex-officio trustee and the elections of plaintiffs
2 and 3 as his co-trustees at the Karingasserai meeting.
This meeting is pleaded in paragraphs 13 and 14 of the
plaint,. In paragraph 18 of the plaint the plaintiffs refer
to the meeting said to have been held at the M. D. Seminary
in December, 1934, on which the defendants rely, the
plaintiffs’ contention being that that meeting was not
convened by competent persons nor after due notice to all
the churches according to custom. In paragraph 20 of their
written statement the defendants deny the factum or the
validity of the Karingasserai meeting relied upon by the
plaintiffs. They contend that that meeting was not convened
by competent persons nor was invitation sent to the large
majority of the churches. In paragraph 29 the defendants
repudiate the allegations pleaded in paragraph 18 of the
plaint and maintain that their meeting was convened properly
and upon notice to all the churches in Malankara. In
paragraphs 16 and 18 of their replication the plaintiffs
reiterate the allegations in the plaint. Issue 1(b) raises
the question of validity of the Karingasserai meeting of
August, 1935, and issue 6(a) raises the question of the
validity of the M. D. Seminary meeting of December, 1934.
As the suit is for possession of the church properties the
plaintiffs, in order to succeed, must establish their title
as trustees and this they can only do by adducing sufficient
evidence to discharge the onus that is on them under issue
1(b) irrespective
531
of whether the defendants have proved the validity of their
meeting, for it is well established that the plaintiff in
ejectment must succeed on the strength of his own title. It
will be noticed that the defendants’ objection to the
Karingasserai meeting was two-fold, (i) that the meeting had
not been convened by competent persons and (ii) that notice
had not been given to all the churches. The District Judge
in paragraph 164 of the judgment held, for reasons stated by
him, that that meeting had not been convened by competent
persons and in paragraph 165 he found that notice of the
said meeting had not been given to all the churches. It
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having been conceded by the plaintiffs’ advocate at the time
of the final argument before the District Judge that there
is no evidence on the plaintiffs’ side to prove that all the
churches in existence prior to 1086 had been issued notices,
the position was taken up that in the view of the
plaintiffs’ party the defendants and their partisans by
adopting the new constitution Ex. AM had become aliens to
the Church and as such were not entitled to be invited to
that meeting. Their argument was that Karingasserai meeting
was only a meeting of the representatives of those churches
which stood by the Patriarch Abdulla 11 and the succeeding
Patriarchs and as the defendants and their partisans had
become aliens to the Church no notice to them was necessary.
This argument clearly amounted to an admission that no
notice was sent to the churches on the defendants’ side.
The District Judge having held, contrary to the submission
of the -plaintiffs, that the defendants and their partisans
had not gone out of the Church it followed, according to
him, that they were entitled to notice and as it was not
proved that notices were sent to them but on the contrary as
it was contended that no notice was necessary to be sent to
them the District Judge felt it to be quite clear that the
said meeting was not duly convened. In this view of the
matter, it was not necessary for the learned District Judge
to go further into the matter and enquire whether notices
had been given to churches which had not adopted the new
constitution Ex. AM.
Coming to the judgment of the High Court it appears that the
majority of the Judges dealt with the question
532
of the validity of the meeting in a superficial and summary
manner. Nokes J. said:-
"The lower Court held that the meeting was not duly
convened, mainly because notice was not given to the
defendants’ party (judgment paragraphs 166,167). The want
of notice was not disputed, but was justified in accordance
with the Patriarchal monition (Exhibit Z). In view of the
conclusion stated above, that the adoption of the new
constitution was clear evidence of the defendants’
repudiation of the Patriarchs’ church, and of the fact that
the adoption took place in 1934 about 8 months earlier than
the meeting at Karingasserai, the want of notice was
justifiable apart from the monition. The lower Court’s
conclusion that the meeting formed only a minority of the
church is thus erroneous as is the conclusion (judgment,
paragraphs 164, 167) that the meeting was not convened by
competent persons."
Mr. Justice Sathyanesan simply observed:
"The only defect pointed out was that no invitation of the
meeting was given to the churches under the control of 1st
defendant. The short answer to this is that having already
become members of a new Church, they were not entitled to
any invitation and were rightly ignored."
It thus appears that the question as to the competency of
the persons who convened the Karingasserai meeting was
disposed of by Nokes J. in one single sentence at the end of
the paragraph quoted above. The learned Judge does not
appear to have seriously applied his mind at all to the
question of the competency of the conveners of that
meeting.. Sathyanesan J. did Dot deal with the question and
thought, quite wrongly, that the only question raised by the
defendants was as to whether notice was given to the
churches under the control of the defendants. It is pointed
out by the learned Attorney-General that the judgment of
Sathyanesan J. was only a supplementary judgment, for he
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prefaced his judgment with the observation that he entirely
agreed with the findings of Nokes J. This argument might
have had some force
533
if Nokes J. had dealt with the point. The position,
therefore, is that neither of the Judges applied his mind to
the question of the competency of the persons who had
convened the Karingasserai meeting. As to service of the
notice on all churches, Nokes J. in the passage quoted above
held that the defendants had gone out of the Church by
reason of their adoption of the new constitution Ex. AM.
and that consequently no notice was due to them.
Sathyanesan J. also in the passage quoted above took the
view that the defendants having become members of a new
church the defendants were not entitled to any invitation to
the Karingasserai meeting. The learned Judges having
reversed the finding of the District Judge and held that the
defendants had gone out of the Church by adopting the new
constitution Ex. AM. it became incumbent on them to enquire
whether all churches not on the plaintiff’s side had adopted
Ex. AM. and if not whether such of them who had not adopted
Ex. AM. had been summoned to the meeting. It may be noted
in this context that the learned Judges of the High Court in
their judgment seem to indicate that the churches which
adopted ’Ex. AM. did so by participation at the M. D.
Seminary meeting. Reference has been made in the arguments
to the various figures set out in the judgment of the
District Judge as to the number of Churches which according
to the evidence had attended the meeting. It is not clear
how many out of 310 churches claimed by the defendants to
have been completely on their side according to Ex. 272 had
attended the M. D. Seminary meeting and formally adopted the
new constitution the Ex. AM. If adoption of the Ex. AM.
is the test for determining whether notice ’is due or not,
then it becomes important to consider whether all the
churches which were not with the plaintiffs but who had not
adopted Ex. AM. had been served. Apart from the question
of the service of the notice there was also the question as
to the competency of the persons who had convened the
Karingasserai meeting where the plaintiffs are said to have
been elected. While Mar Geeverghese Dionysius was alive he,
as President
534
of the Malankara Association, used to convene the meetings
of the Association. Who, after his death, was competent to
issue notice of meeting? There ,appear to be no rules on
the subject. In this situation, says the learned Attorney-
General, if all the members of the Association attended the
meeting the defect of want of proper notice does not matter.
But did all members attend, even if the defendants’ party
who had adopted Ex. AM be left out ? It does not appear
that either of the two majority Judges of the High Court
adverted to either of these aspects of the matter, namely,
service of notice to all churches and competency of the
persons who issued the notice of the Karingasseri meeting
and in any case did not come to a definite finding on that
question. The majority judgments, therefore, are defective
on the face of them in that they did not effectively deal
with and determine an important issue in the case on which
depends the title of the plaintiffs and the maintainability
of the suit. This, in our opinion, is certainly an error
apparent on the face of the. record.
The next point urged by learned counsel appearing for the
appellants is that the majority decision proceeds on a
misconception as to a concession said to have been made by
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the defendants’ advocate. It will be recalled that issues
Nos. 14 and 15 quoted above raise the question of the
defendants having gone out of the Church, for having
committed acts of heresy or having voluntarily given up
their allegiance to the ancient Jacobite Syrian Church and
establishing a new church and framing a constitution for the
same. Likewise, issues Nos. 19 and 20 raise the question as
to whether the plaintiffs and their partisans formed
themselves into a new church and separated from the old
Church by reason of the several acts and claims therein
referred to Here again the suit being one in ejectment it is
more important for the plaintiffs to establish their own
title by getting issues 19 and 20 decided in their favour
than to destroy the defendants’ title by getting issues 14
and 15 decided against the defendants, for a mere
destruction of the defendants’ title, in the absence of
establishments of their own title
535
carries the plaintiffs nowhere. It is to be remembered that
this is a suit by the plaintiffs as the validly constituted
trustees and not a suit under the section analogous to
section 92, Civil Procedure Code, for removal of defendants
from trusteeship or for the framing of a scheme. In
Paragraph 132 of his judgment the learned District judge
found that the acts and claims imputed to the defendants did
not amount to heresy and did not make the defendants or
their partisans heretics or aliens to the faith and that
such acts and conduct’ mentioned in issue 15, even if
proved, would not amount to heresy and would not amount to a
voluntary giving up of their allegiance to or secession from
the ancient Jacobite Church. On the other hand, in
paragraph 133 the District Judge held that the plaintiffs
and their adherents by taking up the position which they
adopted in 1085 and which they had persistently maintained
till then had unlawfully and unjustifiably created a split
in the Malankara Church and might in a sense be said to have
pursued a course of conduct amounting to persistent schism.
He held that, nevertheless, the plaintiffs and their parti-
sans had not become aliens to the Church or created or
formed themselves into a separate church as they had not
been found guilty and punished with the removal from the
Church or excommunication from the Church by a proper
ecclesiastical authority. It will be noticed that the
learned District Judge found the facts imputed to the
defendants not proved but the facts imputed to the
plaintiffs to have been proved. He made no difference
between acts of heresy and merely voluntary separation from
the Church but treated them on the same footing. It will be
recalled that in the interpleader suit of 1913 the District
Judge had held that by accepting Abdul Messiah as their
ecclesiastical head or by denying the authority of Abdulla
II, Mar Geeverghese Dionysius and his co-trustees had not
become aliens to the faith. Finally, in the judgment on
rehearing of the appeal reported in 45 T.L.R. 116 from which
passages have been quoted above the acts imputed to the
defendants in that case which are similar to those imputed
’to the
536
defendants in the present case, with the exception of the
adoption of Ex. AM, were held not to amount to a voluntary
separation from church by the establishment of a new church
and that the Free Church case (1) had no application to the
facts of that case. Likewise, in the present case the
District Judge dealt with issues 15, 16, 19 and 20 together,
which covered issues on 30th heresy and voluntary
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separation. Presumably in view of the decision of the Court
of Appeal in the previous suit the learned District Judge in
this case did not make any distinction between acts of
heresy and voluntary separation from the Church and held
that there was "no case of ipso facto heresy or ipso facto
loss of membership of the Church or ipso facto loss of
status as Priest and prelates for ecclesiastical offences
unless the offenders were tried and punished by a competent
authority." Indeed, the evidence of P.W. 17, the Pope’s
delegate, is claimed as supporting this view. It is in the
light of this situation that the question as to the
misconception of the concession has to be considered.
Sathyanesan J. in paragraph 4 of his judgment, referred to
the concession said to have been made by the learned
advocate for the defendants in the following terms:-
"............... However the learned advocate for the
respondents clarified the situation by very fairly con.
ceding that plaintiffs had not left the church and that they
were as good members of the original Jacobite Syrian Church
as anybody else. Another clarification has been made by the
learned advocate for the appellants that the plaintiffs,
whatever might have happened in the past, do not hold that
the Patriarch can at all interfere in the internal
administration of the Malankara trust properties.
Plaintiffs seem to have made their position clear even at
the time of pleadings. According to them, ’The Patriarch as
the ecclesiastical head of the Malankara Church could
exercise that authority by awarding such spiritual
punishment as he thinks fit in cases of mismanagement or
misappropriation of church properties’-Vide pleading No.
124(1). The concession made by the learned advocate for the
(I)L.R. [1904] A.C. 515.
537
defendants has obviated the necessity of a lengthy
discussion of several matters. So it is worth pausing a
while and understanding the importance, and the implications
of the concessions. It tends to mean-
(i) that the Patriarch is not an alien to the Church, i.e.,
the Patriarch and his predecessors in question are the true
and lawful head of the original Jacobite Syrian Church, that
(ii) that the plaintiffs and their partisans, holding
(a) the Patriarch has only a spiritual supervision of the
administration of the trust properties by the trustees,
(b) the Patriarch alone can consecrate Morone,
(c) that Exhibit BP is the true Canon of the Jacobite
Church, and
(d) that the Catholicate was not properly established,
cannot, on these grounds, be considered to have become
aliens to the original church.
So the question is more properly whether the defendants have
seceded from the original church and formed a new church.
In the nature of the suit, the plaintiffs can succeed only
if they make out,
(A) that the defendants are using the trust properties
belonging to Malankara Jacobite Church for the maintenance,
support and benefit of another and a different body, namely
Malankara Orthodox Syrian Church, and
(B) that the plaintiffs are the duly elected trustees."
Likewise, Nokes J. at pp. 355-356 referred. to the
concession as follows:-
"............ In this court the defendants’ advocate did not
seek to disturb the finding that the plaintiffs had not
become aliens to the church. Indeed, as previously stated,
he based his case on the ground that both parties were still
within the church. This abandonment of his clients’
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contention in the lower court was no doubt due to the fact
that the written statement involved an admission of the
plaintiff’
69
538
case; for the plaintiffs in effect said, ’we are the
trustees of the Patriarch’s church,’ while the defendants
said, ’we are the trustees of a church to which the
Patriarch is an alien.’ Nor was any attempt made here on
behalf of the defendants to challenge the finding that the
trust had not become altered; for any contention to the
contrary provided no defence and was a further admission of
the plaintiffs’ case. But the existence of this allegation
on the pleadings serves to emphasise the defendants’
attitude to the trust."
Further down the learned Judge said
"...... The learned Judge held against the general
allegation of separation (judgment, paragraph 133), but in
favour of the special allegation as to the plaintiffs’ view
on temporalities (paragraph 108). He also recorded findings
as to the limited scope of the Patriarch’s powers in
temporal affairs (paragraphs 58, 60), which seem to be based
on the erroneous view inter alia that persons who are
subject to two systems of law are amenable for different
aspects of the same offence only to punishment under one
system (see paragraph 57). The general finding was
challenged in the memorandum of objection (grounds 10 and
11), but not in the argument for the defendants here, which,
as previously stated, proceeded on the basis that both sides
were still members of the church."
On a plain reading of the two judgments it appears that the
majority Judges took the view that even if, as held by the
District Judge, the plaintiffs had been guilty of acts and
conduct imputed to them it was not necessary for them to
enquire whether those acts were mere heresy or also amounted
to a setting up of a new church or whether the Canon law
requiring the verdict of an ecclesiastical authority applied
to both or only to acts of heresy. This attitude they
adopted simply because of what they understood was the
concession made by the defendants’ advocate, namely, that
the plaintiffs had not gone out of the church. They, how.
ever, felt bound, notwithstanding the contention of the
defendants that they were also, for similar reasons.
539
within the church, to consider whether the defendants had
voluntarily gone out of the church by setting up a new
church as evidenced by their aforesaid acts. Learned
counsel for the appellants contends, and we think there is a
good deal of force in such contention, that the majority
Judges do not appear to have examined the question or
considered whether voluntarily going out of the church was a
concept separate and distinct from acts of heresy and if so
whether the acts and conduct imputed to the plaintiffs apart
from being acts of heresy from an ecclesiastical point of
view, amounted also to voluntarily going out of the’ church
by establishing a new church. Nor do they appear to have
considered whether the Canon law requiring verdict of an
ecclesiastical authority was required in both cases. There
can be no doubt,therefore, on the face of the judgment, that
the decision of the learned Judges in this behalf proceeds
on what they considered was a concession made by the defend-
ants’ advocate that the plaintiffs had not gone out of the
church. Learned counsel for the defendants appellants
contends that this was a misapprehension and he relies on
the affidavit of Sri E. J. Philipose, advocate, with which
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were produced two letters written to him by the senior
advocate. In the first letter it is stated as follows:-
"I argued at length of the misconduct of the plaintiffs in
going against the basic conditions of the Royal Courts’
judgment and said that while the conduct of each party is
open to examination neither could be said to have left the
church. Their acts may be set aside in both cases but they
cannot be said to have left the church. The Judges cannot
accept it in one case as a concession and in the other case
as my submission. Deciding one part of it as a concession
not requiring the decision of Court is unjust to my lengthy
argument on the misconduct of the plaintiffs; in regard to
their diversion of property from the trust - "
In the second letter we find the following passages:-
"Throughout my argument was that the plaintiffs had steadily
and consistently’ set at naught the
540
fundamental principles of the charity as settled in the
judgments of the Royal Court and the Cochin Court.
As between the charge and counter charge of violation of the
foundation rules, I expressed it as my view that while their
views may be corrected by the Court neither party should be
treated as having become aliens to the church by reason
merely of erroneous views. That is what is explained in
paragraph 17 of the grounds. My opinion so expressed is not
to be treated as a concession of the one case and a
submission as to the other. If my view of the law was not
acceptable the learned Judges must decide and not treat one
part of a connected statement as a concession not requiring
to be considered by the Court."
In the review petition ground No. 17 is as follows
"Their Lordships’ observation that the defendants’
Advocate based his case on the ground that both parties were
still within the Church and that the defendants’ Advocate
conceded that the plaintiffs have not left the church and
that they were as good members of the original Jacobite
Syrian Church as anybody else is inaccurate and incomplete,
and misleading. The Advocate devoted a great part of the
argument to showing that the plaintiffs have departed from
the constitution as settled by the Royal Court Judgment.
The plaintiffs stated that the defendants have left the
Church. In reply the argument was that there is no such
thing as ipso facto secession merely because of differences
of views on the powers of the Patriarch or about the Canon
to be followed. It was in that sense and in that sense only
that the argument was advanced that in law it must be taken
that both parties were within the Church. The Judges were
not justified in taking it out of its setting and using part
of it as an admission in support of the plaintiffs and
rejecting the other portion as a mere argument not
sustainable in law so far as the defendants are concerned.
If it should be treated as an admission at all it must have
been accepted or rejected as a whole. It must not have been
torn piecemeal and part used and part rejected..
541
The reasons as signed for concluding that the defendants
have gone out of the Church apply even more strongly to the
plaintiffs and the Judges should have dismissed the suit in
limine.
Their Lordships failed to note that the basic
constitution of the Church had been laid down by the Royal
Court Judgment and the plaintiffs by disowning and
repudiating it had really seceded from it.
If the view of the court was that departure from the
rules of the foundation put the parties out of the Church it
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should apply alike to both the parties and the statement
that neither party had gone out of the Church cannot be used
to sustain the plaintiffs’ right and at the same time
rejected as untenable to support the precisely similar
rights of the defendants.
Their Lordships failed to note that the defendants’
Advocate strongly urged that it was necessary to have the
charges framed, enquiry held and due and proper grounds made
out before a person can be put out of the Church and there
was not even a whisper of it as, having been complied with
in this case.
Their Lordships also failed to note that there can be no
such thing as an entire body of persons against whom nothing
was alleged or proved being held to have gone out of the
Church.
Their Lordships failed to note that the so-called admission
did not in any way affect the defendants’ case that the
Patriarch and the plaintiffs and their partisans have
voluntarily left the Church and had thereby ceased to be
members thereof."
Learned: Attorney-General strongly objects to any reference
being made to the facts contained in the affidavit of E.J.
Philipose or the letters produced along with it and he
refers us to the decision of this Court in Sha Mulchand &
Co. Ltd. v. Jawahar Mills Ltd.(1), and the cases therein
referred to and to the case of Reg. v. Pestanji Dinsha and
Another(1). It will, however, be noticed that what was
deprecated in that case was the fact that no affidavit had
been filed before the trial Court for the rectification of
what, in the appeal Court,
(1) [1953] S.C.R. 351 at P. 366.
(2) 10 Bom H.C.R. 75.
542
was alleged to have been wrongly recorded by the trial
Judge. The Privy Council in Madhu Sudin Chowdri V. Musammat
Chandrabati Chowdhrain(1) also suggested that the proper
procedure was to move. the Court in whose judgment the error
is alleged to have crept in. In this case, as already
stated, an affidavit was filed before the appeal Court
itself while the Chief Justice and Nokes J. were still in
office. Further, if, as laid down in the judgment of this
Court to which reference has been made, the proper procedure
is to apply to the Court whose judgment is said to be
founded on a misconception as to the concession made by the
learned Advocate appearing before it, by what procedure,
unless it be by way of review, could that Court be moved?
Indeed, the Madras case referred to in the judgment of this
Court freely indicates that the application should be by way
of review. Patanjali Sastri J. (as he then was) sitting
singly in the Madras High Court definitely took the view in
Rekhanti Chinna Govinda Chettiyar v. S. Varadappa
Chettiar(2) that a misconception by the Court of a
concession made by the Advocate or of the attitude taken up
by the party appears to be a ground analogous to the grounds
set forth in the first part of the review section and
affords a good and cogent ground for review. The learned
AttorneyGeneral contends that this affidavit and the letters
accompanying it cannot be said to be part of ’,the record"
within the I meaning of Order 47, rule 1. We see no reason
to construe the word " record " in the very restricted sense
as was done by Denning L.J. in Rex v. Northumberland
Compensation Appeal Tribunal Ex-Parte Shaw(1) which was a
case of certiorari and include within that term only the
document which initiates the proceedings, the pleadings and
the adjudication and exclude the evidence and other parts of
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the record. Further, when the error complained of is that
the Court assumed that a concession had been made when none
had in fact been made or that the Court misconceived the
terms of the concession or the scope and extent of it, it
will not generally appear on the
(1) (1917) 21 C.W.N. 897
(2) A.I.R. 194o mad, 17.
(3) [1952] 2 K.B. 338 at PP- 351-352.
543
record but will have to be brought before the Court by way
of an affidavit as suggested by the Privy Council as well as
by this Court and this can only be done by way of review.
The cases to which reference has been made indicate that the
misconception of the Court must be regarded as sufficient
reason analogous to an error on the face of the record. In
our opinion it is permissible to rely on the affidavit as an
additional ground for review of the judgment.
Turning to the affidavit and the letters and the ground No.
17 of review it is quite obvious that the defendants had not
given -up their contention, upheld by the District Judge,
that the plaintiffs had been guilty of the acts and conduct
imputed to them. What the. learned Advocate for the
defendants did was to accept the Canon law as interpreted by
the District Judge, namely that nobody goes out of the
church without the verdict of an ecclesiastical authority,
whether the acts complained of amount to acts of heresy or
to the establishment of a new church so as to make the
persons who are guilty of such conduct aliens to the faith.
If the majority Judges took the view that such was not the
Canon law and that the same acts and conduct may have an
ecclesiastical aspect in the sense that they amount to hers
punishable as such and may also amount to a voluntary
separation from the church which is not an ecclesiastical
offence and does not require the verdict of any
ecclesiastical authority to place the guilty person out of
the church then it was clearly incumbent upon the majority
Judges to consider whether the acts and conduct of which the
plaintiffs had been found guilty had actually been committed
by them and whether such acts and conduct also had the dual
aspect, namely, amounted to an ecclesiastical offence
requiring excommunication and also to a voluntary separation
which not being an ecclesiastical, offence did not require
an ecclesiastical verdict to-place a guilty person out of
the pale of the Church. This, on the face of the judgment
the learned Judges failed to do.
Learned Attorney-General has submitted that the allegations
against the plaintiffs, are five in number, namely-
544
(1) The Patriarch has Temporal powers over the properties
of the Malankara Church;
(2) The Patriarch has got the power acting by himself to
excommunicate and ordain a Bishop;
(3) Only the Patriarch may consecrate Morone
(4) The Canon of the Church is Ex. XVIII in O.S. No. 94 of
1088; and
(5) The Catholicate has not been validly instituted in the
Malankara Church;
and suggests that these charges have been gone into directly
or indirectly by the majority Judges and that, therefore, no
prejudice’ has been caused. He, however, cannot dispute
that the Judges have failed to consider and come to any
definite finding on some of them. We do not consider that
the contention of the learned Attorney General is entirely
well founded. Issue20(1) contains several charges against
the plaintiffs and even if charges (a) and (b) have been
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referred to in the majority judgment, the charges (c), (d)
and (e) have certainly not. been dealt with. As to the
temporal power of the Patriarch the District Judge held in
paragraph 58 of his judgment that the Patriarch had no
temporal authority or jurisdiction or control over the
Malankara Jacobite Syrian Church and its temporalities and
that the, power of general supervision over spiritual
Government conceded to the Patriarch in Ex. DY did not
carry with it by necessary implication the right to
interfere in the administration of the temporalities and
properties of the Church. The decision to the contrary in
41 T.L.R. I -cannot be regarded as having any bearing after
that judgment was set aside subject only to three points as
here in before mentioned. It does not appear that the
majority Judges considered whether the plaintiffs imputed
full temporal powers to the Patriarch or the limited one as
conceded to him in Ex. DY and if they did impute to him
-full temporal powers whether they had departed from a
fundamental tenet of the Church. They do not also appear to
have considered whether, if the plaintiffs originally
pledged themselves to the tenet of full temporal power of
the Patriarch and thereby departed from a fundamental
article and such *departure involved their having
545
become aliens, any subsequent change in their attitude by
limiting it as in Ex. DY would make a difference. Further,
as to the power of consecrating Metropolitans Nokes J. found
that a validly appointed Catholicos had the power, under
both versions of the Canon, to consecrate Metropolitans
without a Synod and that by so claiming the defendants had
not become aliens to the faith. The learned Judge, however,
did not consider the implication of this finding so far as
the plaintiffs were concerned. This finding may lead to the
implication that the claim that the Patriarch alone has got
the power of ordination and the Catholicos has not that
power cannot but be regarded as a departure from the Canon.
Issue 20(1)(a)(1) which relates to the consecration of
Morone has been found in favour of the defendants. - If the
defendants have not gone out of the Church by making the
claim that Morone may be consecrated by the Catholicos or
the Metropolitan in Malankara then the learned Judge should
have considered whether a denial of such right by the
plaintiffs constituted a departure by them from the
canonical law. This the learned Judge failed to do. Issue
20(1) (a) (iii) related to the establishment of the
Catholicate. In "pleading" No. 124 the plaintiffs
maintained that a Catholicate had not been established at
all. The District Judge held that Abdul Messiah by his
Kalpana Ex. 80 revived the Jacobite Catholicate. The
respondents’ ground of appeal No. 17 assumed that a
Catholicate had been established. Nokes J. held that Abdul
Messiah was a Patriarch, that a Patriarch had the power by
himself and without the Synod to establish a Catholicate and
that a Catholicate had been established by him although the
old Catholicate of the East had not been revived.
Sathyanesan J., however, held that the establishment of the
Catholicate in Malankara was dubious, surreptitious and
uncanonical and that no Catholicate had been established.
The two judgments appear to be somewhat at variance in this
respect. In any case, Nokes J. has not considered whether
the stand taken by the plaintiffs that no Catholicate had
been establisbed at all amounts to a departure by them from
the injunctions of the Canon law, On a fair reading of
70
546
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the majority judgments it appears to us that the majority
Judges have been misled by a misconception as to the nature
and scope of the concession alleged to have been made "by
the defendants’ advocate. If the acts imputed to the
defendants amounted to a voluntary separation, the learned
Judges should have considered whether the acts imputed to
the plaintiffs likewise amounted to a voluntary separation.
If the defendants had not gone out of the Church by
asserting that a Catholicate had been established, that the
Catholicos can ordain Metropolitans and consecrate Morone
then they should have considered whether by denying these
assertions the plaintiffs had not gone out of the Church.
This they failed to do. They could not properly decline to
go into the question of fact on account of the admission of
the defendants’ advocate that the plaintiffs remained in the
Church. Such admission at beat was an admission as to the
canon law and the decision that the defendants had
voluntarily gone out of the Church even in the absence of an
ecclesiastical verdict necessarily implies that the conce-
ssion made by the defendants’ advocate requiring an
ecclesiastical verdict as a condition precedent to voluntary
separation also was obviously wrong and an erroneous
concession of law made by the defendants’ advocate could not
be relied upon for saving the plaintiffs. ’The fact,
therefore, that cross-objection No. 11 filed in the High
Court by the defendants does not appear to have been pressed
makes no difference. In our opinion, for reasons stated
above, this head of objection raised by the learned advocate
for the appellants before us is well-founded and the
judgments of the majority Judges are vitiated by an error of
a kind which is sufficient reason within the meaning of the
Code of Civil Procedure for allowing the review.
The last point taken up by the learned advocate for the
appellants is that although certain matters had been agreed
to be left out in connection with issue No. 11 (a), the
learned Judges took an adverse view against the defendants
on matters which had been so left out by agreement. Issue
No. 1 1 relates to the powers of the Patriarch. Clauses (b)
to (1) relate to specific powers of the Patriarch. Clause
(a) of that
547
issue is vague and is expressed in very general terms.
Paragraph 60 of the District Judges judgment is as follows:-
"60. It was stated by the advocates on both sides that
it is unnecessary for the purpose of this suit to determine
or decide in a general and comprehensive manner or define
exhaustively all the powers that the Patriarch may have over
or in respect of the Malankara Church as the supreme
spiritual or ecclesiastical head of the whole Jacobite
Church including Malankara and I also think it is not within
the province or competency of this court to attempt to do
it. Whether he is the supreme spiritual head or whether be
is the supreme ecclesiastical head, his powers as the
Patriarch in respect of the matters specified under clauses
(b) to (h) of issue II. (which have formed the subject-
matter of dispute in this case) have been considered and
defined under these various headings under this issue II and
it has also been stated how far they have been determined or
upheld by law courts, custom, practice and precedent so far
as Malankara is concerned and these findings, it is conceded
on both sides, will suffice."
It will be noticed that after this agreement issue No. 11
related only to certain specific powers of the Patriarch.
The findings on these issues by themselves do not lead to
any result. They were, as it were, only introductory issues
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and were material for other issues, e. g. issues 14, 15, 19
and 20. In other words, the general issue II (a) being
given up, the other issues mentioned above were
automatically limited to the specific acts relating to the
specific powers of the Patriarch. The majority Judges have,
however, certainly gone into three matters which were then
agreed to have been left out, e. g., (a) obligation to obey
the Patriarch whether canonically installed. or not, (b)
extent of the right of the Patriarch by himself to decide
matters of faith and (c) whether the Patriarch has the right
to approve of a Catholicos in the sense that such approval
was necessary. These matters are not averred in pleadings
and no specific issues have been raised and in the
circumstances, should not have been gone into. The
suggestion is that these points are covered by other issues.
It is said that the learned Judges held that the new
constitution Ex. AM amounted to a
548
repudiation of the authority of the Patriarch on the
following grounds:-
(1) Installation of Catholicos ignoring the Patriarch;
(2) Absence of a provision for the approval by the
Patriarch or Malankara Metropolitan;
(3) Ordination of Metropolitan and the issuing of Staticons
by the Catholicos, and
(4) the right to collect Ressissa.
These points are said to be covered by issues II (b), (c),
(g) and (h), and also by issues 10(b), 14, 15 and 16.
Assuming it is so, it is clear that the learned Judges also
founded themselves on the three points here in before
mentioned which do not appear to fall within any of the
issues in the case except issue II (a) which was given up.
To decide against a party on matters which do not come
within the issues on which the parties went to trial clearly
amounts to an error apparent on the face of the record. It
is futile to speculate as to the effect these matters had on
the minds - of the Judges in comparison with the effect of
the other points.
The above discussion, in our opinion,, is quite sufficient
for the purpose of disposing of this appeal and it is not
necessary to go into the several other minor points raised
before us. In our opinion the appellants have made out a
valid ground for allowing their application for review. We
accordingly allow this appeal, set aside the judgment of the
High Court and admit the review. As the different points
involved in this appeal are intimately interconnected we
direct the entire appeal to be reheard on all points unless
both parties accept any of the findings of the High Court.
The costs must follow the event and we order that the
appellants must get the costs of this appeal before us and
of the application for review before the High Court.
We need hardly add that the observations that we have made
in this judgment are only for the purpose of this
application for review and should not be taken or read as
observations on the merits ’of the appeal now restored and
to be reheard by the High Court.
Appeal allowed.
549