# [1955] 1 S.C.R. 520

- **Citation:** [1955] 1 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 193 of 1952
- **Bench:** S. R. Das, Ghulam Hasan, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-520-358
- **Pages:** 29

## Headnote

Travancoi·e Code of Civil Procedure (Vlll 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-Errorl
apparent on the face of the record-Ejectment suit-Plaintiff's duty
-Travancore Regulation IV of 1099-United State of TravancoreCochin 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.
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 within 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
th2.t
the Court misconceived the terms of the concession or the
scope and extent of it or the attinide 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
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
•
,
....
. ...
S.C.R.
SUPREME COURT REPORTS
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 subjectmatter 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 1125) and were continued by articles 214 and 225

## Text

_Characters 0–39,862 of 68,397. This is a partial read: ask again with offset=39862 for what follows._

520
SUPREME COURT REPORTS
[1955]
•954
MORAN MAR BASSELIOS CATHOLICOS
~
May 21
AND ANOTHER
ti.
THE MOST REV. MAR POULOSE ATHANASIUS
AND OTHERS.
[S. R. DAS, GHULAM HASAN
and JAGANNADHADAS JJ.]
Travancoi·e Code of Civil Procedure (Vlll 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-Errorl
apparent on the face of the record-Ejectment suit-Plaintiff's duty
-Travancore Regulation IV of 1099-United State of TravancoreCochin 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.
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 within 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
th2.t
the Court misconceived the terms of the concession or the
scope and extent of it or the attinide 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
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
•
,
....
. ...
S.C.R.
SUPREME COURT REPORTS
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 subjectmatter 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 1125) 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 no review was maintainable under section 26. And
even if the appeal be considered to have been filed under section 11
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.
Held, (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,
1954
Moran Mar
Basselios
Catholicos and
Another
v.
The Most Rev.
Mar Poulose
Athanasius and
Others.
1954
ll1oran Mar
Basstlios
Catholicos and
Another
v.
The Most Rev.
Mar Poulose
Alha11asius and
Othv.
522
SUPREME COURT REPORTS
[1955]
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, \vould 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. 378), Hari Shankar Pal v. Anath Nath Mitter
(1'1949] F.C.R. 36), Sha Mulchand & Co. Ltd. v. /awahar Mills Ltd.
([1953] S.C.R. 351) ), Reg v. Pestanji Dinsha and Another (10 Born.
H.C.R. 75),
Madhu Sudan Chowdhri v. Musammat
Chandrabati
Chowdhmni ( (1917) 21 C.W.N. 897) ), Rekhanti Chinna Govinda
Chettiyar v. S. Varadappa Chettiyar (A.LR. 1940 Mad. 17),
and
Rex v. Northu111berland Con1pensation
Appeal Tribunal, Ex Porte
Shaw ([1952] 2 K.B. 338)) referred to.
The facts leading up to the appeal, as summarised from the
J udg1nent,
are as
follows. There were t\vo rival sections of the
Malankara Jacobite Syrian c.hristian co1nmunity in Malabar,
who
can1e to he represented by the appellants
and respondents respectively.
Certain disputes
had
arisen bet\veen the two sections;
and each clain1ed the right to possess and administer the Church
properties to the exclusion Qf the other.
In 1938, a suit 'vas filed in the District Court of Kottayam by
the
first
and second respondents against the first and second
appellants. The plaintiffs contended that the defendants had committed acts of heresy and became ipso facto alien to the Malankara Ja·
cobite 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 in1puted to the defendants did not amount to
heresy or schis1n, or to voluntary separation fron1 the Church,
and that in any event, according to Canon Law, there could be no
i'pso 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 tnaintain the suit, \vhich was, therefore, dismissed.
Being aggrieved by the trial Court's dis1nissal 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 held that the plaintiffs and been validly elected as
trustees and as such were
entitled to
posscsiion
of the Church
...
S.C.R.
SUPREME COURT REPORTS
523
properties.
The appeal was 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 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 ddcnclants applied for, and on the 14th April, 1952,
obtained,
~
special ieave of the Supreme Court to prefer an appeal against the
• • High Court's decision.
•
CrvIL
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 (I'. N. Bhagwati, M. Abraham and
i"V. 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.
A/zraham (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
proceeJed as follows).
It will be convenic:nt at this stage to discuss arid
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
had been
brought
about in the
JS
87 S. C. India/59
t954
Moran Mar
Basselios
Catholicos and
Another
V1
The ivfost Rev.
Mar Poulose
' Athanasius and
Others.
1954
Moran Mar
Basselios
Catholicos and
Another
v.
The Most Rev.
Mar Poulose
A.thanasius and
OtherJ
Das].
524
SUPREME COURT REPORTS
[1955]
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 11, 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) ................... .
(c) ................... .
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
Cotle 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 judg-
•
....
ment be passed then the provisions of section 11 shall,
as far as possible, apply, that is to say, the judgment
\ -.
J
•
•
•
S.C.R.
SUPREME COURT REPORTS
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 spe.cified. 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
1954
Moran Mar
Basselios
Catholicos and
Another•
v.
The Most Rev.
Mar Poulose
Athanasius and
Others.
Das].
1954
Moran Mar
Basselios
Catholicos and
-.Another
v.
The Most Rev.
Mar Poufo"se
Athanasius
and
Others.
Das].
•
526
SUPREME COURT REPORTS
[1955]
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 con:iing into force of this
Ordinance.
Clause 25 leaving out the two Explanations which
are nor material for our present purpose and clause 26
ran as 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 i·n 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 II ................. .
26. In
cases
decided
under section
ZS
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 II 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 th~ Part B St2tes.
'
;
,- J
'
... .
-
••
'
•
S.C.R.
SUPREME COURT REPORTS
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
<:ontinued 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, oniy
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 wellfounded. 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
1954
Moran Mar
Basselios
Catkolicos and
Another
v.
The Most Rev.
Mar Poluo!e
Athanasius
and
Others.
Das].
1954
Moran
Mar
Basselios
Catholicos and
Attother
V,
The Most Rev.
Mar Poulose
Athanasius
and
Others.
Das].
528
SUPREME COURT REPORTS
[1955}
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 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 whicI'. 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 1125, 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 II 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
-
-
S.£.R.
SUPREME COURT REPORTS
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
XL VII, rule 1 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 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.
(3) [1949] F.C.R. 36 at pp. 47-48·
!21 L. R. 61 I. A. 378.
1954
Moran Mar
Basselios
Catholicos and
Another
v.
The Most R1u.
Mar PouloSI
Athanasius and
·others.
Das].
1954
Moran Mar
Basselios
Ctitholicos and
Another
v.
T !IA Most Rev.
Mar Poulose
Athanasius and
Others.
Das].
•
530
SUPREME COURT REPORTS
[19i5]
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 alre.£1dy
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 appelbnts,
'1e mainly
stre>.sed
three of them before us. Vie n'ow 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
"lections of plaintiffs 2 and 3 as his co-trustees at the
Karingasserai
meeting. This
meeting is
pleaded
m
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 rupudiate the ailegations
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
• •
+ ,;'
•
·s.C.R .
SUPREME COURT REPORTS
531
. cf 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 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 II 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
1954
Maran Ma
Basselios
Catholuos and
Another
v.
The Most Rev.
Mar Poulose
Athanasius
aud
Others
Das J.
1954
MorariMar
Basstlios
Catholicos and
Another
v.
The Most Rev.
Mar Pou/ose
Athanasius
and
Others.
Das].
532
SUPREME COURT REPORTS
[1955]
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, par.agraphs
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 not deal with the question and thought, quite
wrongly, that the only question raised by the defend--
ants 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
...
·;
•
.,
t
-
S.C.R
SUPREME COURT REPORTS
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 dekndants 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
tl1e
M. D. Seminary meeting
and formally
adopted the new constitution the Ex. AM. If ad0ption of
the Ex. AM. is the test for determining
whether notice is due or not, then it becomes important to consider whether all the chu'.ches 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
r954
Moran Mar
Basseilios
Catholicos and'
Another
v.
The Most Rev.
Mar
Poulose
Athanasius and:
Others.
Das].
-
'.~54
Moran Mar
Basselios
C athfllicos and
Another
v.
The Most Rev.
Mar Poulose
Jtt/ianasius and
Others.
Das].
534
SUPREME COURT REPORTS
[1955]
of the Malankara Association, used
to convene the
meetings of the Association. vVho, 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 Karingasserai 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
1'.' 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
J acoc:te 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 whethe.r
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
.;.•
-
•
S.C.R.
SUPREME COURT REPORTS
535
carnes the plaintiffs nowhere. It is to be remembered
that this is a suit by the plain tiffs as the valid! y 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
t'.1e
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 m
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
an<l
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 r.:ne which are similar to those imputed to the
1954
Maran Mar
Basselios
Catholicos amt
Another
v,
The Must Rev.
Mar Poulose
Athanasius amt
Others.
Das].
1954
Moran Mar
)Basselios
Catholicos
and
Another
v.
The Most Rev.
Mar Poulose
..Athanasius and
Othtrs.
Das].
536
SUPREME COURT REPORTS
[1955]
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
both 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 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.