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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,

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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