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TMI Blog1954 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws 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 Clause 4 of this Ordinance repealed the Travancore High Court Act (Regulation IV of 1099).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 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 tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 a proceeding proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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 the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prefaced his judgment with the observation that he entirely agreed with the findings of Nokes J. This argument might have had some force if Nokes J. had dealt with the point. The position, therefore, is that neither of the Judges applied his mind to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 establishi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpleader 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, 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' contention in the lower court was no doubt due to the fact that the written statement involved an admission of the plaintiff' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rejected.. 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 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if charges (a) and (b) have been 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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 concession made by the defendants' advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, only introductory issues 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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