MORAN MAR BASSELIOS CATHOLICOS AND ANOTHER v. MOST REV. MAR POULOSE ATHANASIUS AND OTHERS
Citation: [1955] 1 S.C.R. 520; 1954 INSC 72
Court: Supreme Court of India
Bench: SUDHI RANJAN DAS , GHULAM HASAN, B. JAGANNADHADAS
Judgment date:
Case summary
1954 INSC 72. Supreme Court of India judgment dated 1954-05-21. MORAN MAR BASSELIOS CATHOLICOS AND ANOTHER v. MOST REV. MAR POULOSE ATHANASIUS AND OTHERS....
Judgment text
MORAN MAR BASSELIOS CATHOLICOS 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 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. 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 • 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 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, 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 Judg1nent, 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 respec-tively.
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 properties. The appeal was accordingly allowed and a decree was t954 passed for possession and other reliefs in favour of the plaintiffs. Moran Mar Basselios On the 22nd August, 1946, the defendants. filed a petition for Catholicos and review of the High Court"s judgment on the ground that it contain- Another ed several mistakes or errors apparent on the face of the record V1 and that in any event there were sufficient reasons for the rehear- The ivfost Rev. Mar Poulose ing of the appeal.
The application for review was ultimately dealt ' Athanasius and with by the High Court on merits on the 21st of December, 1951. Others. 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 Judi-cature 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 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 • 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 speak-ing, 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 • 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. 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 . 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 ailega-tions 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 . 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 t gone out of the church. They, however, felt bound, notwithstanding the contention of the defendants that they were also, for similar reasons, S. C. R.
SUPREME COURT REPORTS 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 req u1red 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 defendants' advocate that the plaintiffs had not gone out of the church. Learned counsel for the defendants appellants contends that this was a misapprehension and he relies on the affidavit of Sri E. J. Philipose, advocate, with which were produced two letters written to him by the senior advocate. In the first letter it is stated as follows :- "I argued at length of the misconduct of the plaintiffs in going against the basic conditions of the Royal Courts' judgment and said that while the conduct· of each party is open to examination neither could be said to have left the church. Their acts may be set aside in both cases but they cannot be said to have left the church. The Judges cannot accept it in one case as a concession and in the other case as my submission.
Deciding one part of it as a concession not requiring the 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. " I 11 the second letter we find the following passages :- "Throughout my argument was that the plaintiffs had steadily and consistently set at naught the 16-87 S. C India/59 fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court. and As between the charge and counter charge · of violation of the foundation rules, I expressed it as my Rev. view that while their views may be corrected by the Poulose and 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 requiri1w to be considered by the Court. " In the review petition ground No. 17 is as follows :- "Their Lordships' observation that the defend· ants' ' 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 . :irgument 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. The reasons assigned for concluding that the defend- . ants 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 disown-mg and repudiating it had really seceded from it.
If the view of the court was that departure from the rules of the foundation put the parties out of the ·Church it should apply alike to both the parties and the statement that neither party had gone out of the Church cannot be used to sustain the plaintiffs' right and at the same time rejected as untenable to support the precisely similar rights of the defendants. • Their Lordships failed to note that the defendants' Advocate strongly urged that it was necessary to have the charges framed, enquiry held and due and proper grounds made out before a person can be put out of . the Church and there was not even a whisper of it as having been complied with ih 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 m 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. fawahar Mills Ltd. (1 ), and the cases therein referred to and to the case of Reg. v Pestanji Dinsha and Another( 2 ). 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, (I) [1953] S. C. R. 351 at p. 366. (2) 10 Born. H. C. R. 75 . ' .. _ • was alleged to have been wrongly recorded by the trial Judge. The Privy Council in Madhu Sudan CltoflJdri 1 v.
Musammat Chandrabati Chowdhrain( ) 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 mis- -conception as to the concession made by the learn~d Advocate appearing before it, by what procedure, unless it be by way of review, could that Court be moved i' -1# Indeed, the Madras case referred to in the judgment •· · of this Court freely indicates that the applicatiop 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(') 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 '·r the first part of the review section and affords a good and cogent ground for review. The learned Attorney- General contends that this affidavit and the letters accompanying it cannot be said to be part of "the -record" within the 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(') which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudica-tion and exclude the evidence and other parts of the record.
Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the . , > 4 (1) [1917] 21 C. W,N. 897. (3) [1952] 2 K. B. 338 at pp. 351. 35. _ (2) A. LR. 1940 Mad. 17. re. cord 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 -0f 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 heresy 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 ma1onty 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- (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.
Issue 20(1) contains several charges against the plaintiffs and even if charges (a) and (b) have been referred to in the majority judgment, the charges (c), (d) and (e) have· . certainly not been dealt with. As to the temporal power of the Patriarch the District Judge held in paragraph 58 of his judgment that the Patriarch had no· temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and its temporalities and that the power of general supervision over spiritual Government conceded to the Patriarch in Ex. DY did not carry with it by necessary implication the right to interfere in the administration of the temporalities and properties of the Church. The decision to the contrary in 41 T. L. R. 1 cannot be regarded as having any bearing after that judgment was set aside subject 011ly to three points as hereinbefore 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 ... l. -J. 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 nlidly 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 t~1e Canon. Issue 20(1) (a) (i) 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(l)(a) (iii) related to the establishment of the Catholicate. In "pleading" No. 124 the plaintiffs maintained that a Catho! icate 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, surrepti-tious and uncanonical and that no Catholicate had been established. The two judgments appear to be somewhat at vanance m this respect. In any case, Nokes J. has not considered whether the stand taken { by the plaintiffs that no Catholicate had been established at all amounts to a departure by them from the injunctions of the Canon law.
On a fair reading 0£ 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 best was an admission a; to the canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the concession made by the defendants' advocate requiring an ecclesiastical verdict as a :ondition 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 appllants before us is well-founded and the judgments of the majority Judges are vitiated by an error of a kind whicl1 is . sufficient reason witl1in tl1e 1neaning 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 ! :'. ad been agreed to be left out in connection with issue No. ll(a), the learned Judges took an adverse view against the defendants on matters which had been so left out by agreement. Issue No. 11 relates to the • I powers of the Patriarch. Clauses (b) to ( i) relate to specific powers of the Patriarch. Clause (a) ·of that issue is vague and is expressed in very general terms. Paragraph 60 of the District Judge's 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 -0£ this court to attempt to do it. Whether he is the supreme spiritual head or whether he is the supreme ·ecclesiastical head, his powers as the Patriarch in respect of the matters specified under clauses (b) to (h) ·of issue 11 (which have formed the subject-matter of ·dispute in this case) have been considered and defined under these various headings under this issue 11 and it has also been stated how far they have been deter-mined 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 and were material for other issues, ·e. g. issues 14, 15, 19 and 20. In other words, the general issue ll(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 Patriar. ch by himself to decide matters of faith and ( c) whether the Patriarch has the right to approve of a Catholicos in the sense that such approval was necessary.
These matters are not averred in pleadings and no specific issues have been raised and, in the circumstances, should not have been gone into. The suggestion is that these points are covered by other issues. It is said that the learned Judges held that the new constitution Ex. AM amounted to a repudiation of the authority of the Patriarch on the-following grounds :- ( 1) Installation of Catholicos 1gnonng 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 11 ( b) ,. (c), (g) and (h), and also by issues lO(b), 14, 15 and 16. Assuming it is so, it is clear that the learned Judges· also founded themselves on the three points hereinbefore mentioned which do not appear to fall within any of the issues in the case except issue ll(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 appa-· rent on the face of the record. It is futile to speculate as to the effect these matters had on the minds of the J u<lges 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.
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