Baselius Mar Thoma Mathews & Ors. v. Paulose Mar Athanasius &. Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2222 of 1979. Appeal by Special Leave from Judgment and Order dated 4-7-1979 of the Kerala High Court in CMP (Transfer) No. 5069/79. F. S. Narimitn and K. R. Nambiar for the Appellants. B. M. T. MATHEWS & ORS. V. P. M. ATHANASIUS & ORS. (Krishna Iyer, !.) V. M. Tarkunde, P. P. John and N. Sudhakaran for RR 18 and 20. The Judgment of the Court was delivered by KRISHNA IYER, J.-The Malankara Sa,bha, on the Kerala Coast, is an ancient Church with a legendary past, and has a phenomenal following of a million Md a half Orthodox Syrian Christians with over a thousand parish churches to nourish the spiritual life of the flock. Schismatic pathology which ordinarily afllicts secular institutions struck this ecclesiastical organisation resulting, inter alia in bitter litigative battles of several years standing. Some suits, manifesting this litigious syndrome, are stated to be pending in the several courts of Kerala.

The members of this chnrch are not new to forensic struggles and have, on earlier occasions, fought right up to the Supreme Court. The prolongation of such plurality of court cases in a community at once influential, important and . numerous, has many deleterious social consequences and it was wise of the High Court and. the Government of Kerala to have thougl1t in terms of selecting eight of the most significant suits out of the spate of cases and constituting an 'Additional District Court' specially for disposal of these socially sensitive cases. Thanks to this imaginative measure the eight suits which were made over to the specially appointed District Judge made headway steadily forwards. An Additional District Judge, by name, Shri N. Vishwanath Iyer was first put in charge of these suits and he examined several witnesses. When he was transferred from Ernakulam, which is the venne of the District Court, another judicial officer by name, Shri S. Ananthasubramanilll1 was posted in his place.

The latter kept up the progress of the case and actually finished recording the entire evidence. Hardly had the arguments commenced when an application for transfer was made to the High Court under Section 24 (1) of the Civil Procedure Code praying for making over the suits to some other court for disposal. Certain aspersions suggestive of bias were made therein, but the High Court (Mr. Justice Bhaskaran) eventually &nd Tightly dismissed the petition. A petition to appeal by special leave was filed to this Court but, after making some submissions, counsel withdrew that petition when we indicated our reaction. Another petition had been filed under Section 24(1)(b) of the Code for withdrawal. of the suits to the file of the High Court, which was heard by another Judge of the High Court (Mr. Justice Khalid). The learned Judge dismissed that petition, and against that order the present petition for special leave to appeal has been moved.

SVi'REME COURT REPORTS We are deeply disturbed that a11 important community in the State of Kerala should be locked in litigatio11 for long years and if amity can be restored by an early end of the crop of cases which drive a wedge between sections of the same community it is 'a consummation devoutly to be wished'. But all that courts can do is to adjudicate cases with the utmost speed and that has apparently been attempted successfully in the present instance. The short point is whether, at this stage and in these circumstances, the eight suits concerned should be called up to the High Court and disposed of. The learned Judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them.

Merely because 'a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court, nor was the circumstace that important and intricate questions of law were involved sufficient for snch transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed Judge and so the High Court felt that it would be "proper for the court that recorded the evidence to hear the arguments also". We are not inclined to fault the learned Judge in the view he has adopted. But there are many buts to any general proposition. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cas~s were withdrawn to the High Court and tried, as was likely by a Division Bench of that court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Article 136 of the Constitution.

A single appeal, as of right, would be taken away, was his apprehension. Shri N:u:-iman, appearing for the petitooners, having prudently though belatedly withdrawn the Special Leave Petition which made reference to bia8, focussed on the advantage both sides would derive · by an early determination of the litigation at the High Court level. He also su bmittcd that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Snpreme Court, as of right, both under Article 13 3 and Section 110 C.P.C., was a certainty. He further emphasised that Section 24(1) (b) would become 'ai dead letter if Shri Tarkunde's objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted. We agree with the learned Judge of the High Court that some ,of the grounds put forward for withdraw! of the suits to the High 1 j B. M. T. MATHEWS & ORS. V. P. M. ATHANASIUS & ORS.

(Kr;shna Iyer, !.) Court were without merit an~ were rightly rejected. But we are not inclined to exaggerate the improtance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper psychic sensitivity is more in the books than in the wear and tear o! life. What weighs with us is the importance of shortening the longevity of these quasi-public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of Justice in the State. It is indubitable that after the decision by the District Court appeals will inevitably be carried to the High Court.

It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from the records, that the case involves questions of public moment and are likely to spiral up to the Snpreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of Jaw bearing on transfer of cases. We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed: these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stre,ssful life of the litigation will be saved.

Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may co11~3ume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a ca.se of this type. Where lakhs of peopl'e arc excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws' delays are important to social justice.

We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage post-haste, since expeditious termination is the driving force behind this order for transfer. A last thought before we piirt with this case. When sacerdotal institutiorul are litigious fights double disaster threatens society because of the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation.

We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now Jocked in Jong years of suits and appeals, sincerely hunger for. We allow the appeal as indicated above. P.B.R. Appeal allowed.