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iyakku Mathoo Vs. Julius Elias Metropolitan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 891 of 1960
Judge
Reported inAIR1962Ker19
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rules 1 and 2 - Order 6, Rule 14
Appellantiyakku Mathoo;julius Elias Metropolitan
RespondentJulius Elias Metropolitan;iyakku Mathoo
Appellant Advocate M. Abraham, Adv.
Respondent Advocate K.P. Abraham and; P.P. John, Advs. for Respondent No. 1 and;
DispositionRevision allowed
Cases ReferredC) and Basdeo v. John Smidt
Excerpt:
.....of civil procedure, 1908 - whether there was proper plaint on which court could take cognizance of suit - plaint not signed by plaintiff or on his behalf as required under order 6 rule 14 read with order 3 rule 1 - trial falls within section 115 (a) - held, not proper plaint on which court could take cognizance. - - 15 that proviso does not apply to the case of a permanently residing outside the country, but only to cases where the absence is temporary (or where, for other good cause, the party is unable to sign the pleading), and, in a case like the present, where the plaintiff is permanently resident abroad, order iii rules 1 and 2 would apply to require the act of signing the plaint enjoined by order vi rule 14 to be by a recognised agent as defined by rule 2 of order iii. but..........may 1959 nor the letter dated the 8th march, 1960, authorises the metropolitan to institute this suit on behalf of the patriarch so that there is no question of tho proviso to rule 14 of order vi coming into play. the first only enjoins the metropolitan to protect the several institutions of the patriarch (of which the simhasana church of kunnamukulam, which is the subject-matter of the present suit, is claimed as one) against those who were seeking to devour them. there is no reference whatsoever to any suit, and it can scarcely be said that this letter authorises the metropolitan to institute a suit on behalf of the patriarch. in fact the patriarch does not seem to have been aware of the institution of tho present suit until it was brought to his notice some time later, for, in the.....
Judgment:
ORDER

P.T. Raman Nayar, J.

1. This is yet another litigation arising out of the unfortunate dispute in the Malankara Jacobite Syrian Church between the Catholics and his supporters on the one hand, and the champions of the Patriarch on the other, the ghost of which one had thought (as it appears, wishfully thought) had been laid by the Supreme Court by the deci-sion reported in Moran Mar Basselios Catholicos v. T. P. Avira, 1958 Ker LT 721 : (ATR 1959 SC 31). The point arising here is whether there was a proper plaint on which the Court could take cognizance of the suit. This question was tried as a preliminary issue, and, the Court below having found in favour of the plaintiff, the defendants have come up in revision.

2. The long cause title in the plaint describes the plaintiff thus (shedding honorifies and other unnecessary words): 'For and on behalf of Jacob III, Patriarch of Antioch, his delegate in India, Mar Julius Elias Metropolitan'. The signature both at the foot of the plaint and of the verification against the word, 'Plaintiff', is by the Metropolitan with this qualification added, namely, that the Metropolitan is signing for and on behalf of the Throne of Antioch, being the delegate thereof -- the Throne of Antioch, I am told, is not a juristic person and is only a figurative way of describing the Patriarch. There can be no doubt therefore that the Patriarch is the plaintiff, and that the Metropolitan has signed and verified the plaint only on behalf of the Patriarch as his delegate. I do not read the plaint as a whole, or paragraphs 1, 13, 17, 18, 20, 21 and 24 and prayer A thereof to which special attention has been drawn, as claiming any title in the Metropolitan himself in bis capacity as tbe delegate of Patriarch, or as seeking any relief for tho Metropolitan himself. The claims and the reliefs are all made and sought by tbe Metropolitan for and on behalf of the Patriarch. But, even if the body of tho plaint can bo read as setting up title in the Metropolitan himself, it is by no means unusual for a plaint to refer to the title of a third party, and, that, by itself, can be no indication that tho Metropolitan is the plaintiff or that he has brought the plaint for himself as also for the Patriarch.

For discovering who is the plaintiff, one has really to go to the description of the plaintiff as given in the plaint and to the subscription to the plaint, and I am unable to agree with the finding of the Court below that, 'on a reading of the plaint as a whole it is quite clear that the plaintiff is really Elias Mar Julius, Metropolitan and that the suit is instituted to protect the rights which ho claims as the delegate of the Patriarch of Antioch.' On the contrary it seems to mo abundantly clear that the suit is instituted to protect the title and the rights of the Patriarch of Antioch, that the Patriarch is the plaintiff, and that the only claim made by the Metropolitan is that he is bringing the suit for and on behalf of the Patriarch.

3. This seems to be the aspect of the case that was canvassed in the Court below. But there is still the other aspect which has been pressed before me, namely, whether the plaint cannot be regarded as one properly signed by the plaintiff, namely, the Patriarch as required by Order VI Rule 14 read with Order III Rules 1 and 2 of the Code. On this the Ending of the Coat below is definitely against the plaintiff and it is in the following terms:

'If the plaintiff in this case is really the Patriarch of Antioch and Elias Mar Julius Metropolitan has signed the suit, verified it and filed it on behalf of the Patriarch of Antioch there should be a valid power of attorney and there should be specific authorisation of Elias Mar Julius Metropolitan by the Patriarch of Antioch to verify the plaint. Such a power of attorney is required under Order 3 Rule 2 to file a suit under Order 3 Rule 1'.

4. With this finding I am disposed to agree. It is said on behalf of the plaintiff that the letters dated 22-5-1959 and 8-3-1960 from the Patriarch to the Metropolitan, the former filed with the plaint and the latter filed soon after orders were pronounc-ed by the Court below, make out the due authorisation permitted by the proviso to Rule 14 of Order VI. But, as pointed out in Bengal Juta Mills v. Jewraj Heeralall, AIR 1943 Cal 13 at p. 15 that proviso does not apply to the case of a permanently residing outside the country, but only to cases where the absence is temporary (or where, for other good cause, the party is unable to sign the pleading), and, in a case like the present, where the plaintiff is permanently resident abroad, Order III Rules 1 and 2 would apply to require the act of signing the plaint enjoined by Order VI Rule 14 to be by a recognised agent as defined by Rule 2 of Order III. It is not pretended that the Metropolitan comes within Clause (b) of the rule; and he cannot come under Clause (a) since the letters relied upon are not powers of attorney.

5. A more substantial objection is that, as I read them, neither the letter dated the 22nd May 1959 nor the letter dated the 8th March, 1960, authorises the Metropolitan to institute this suit on behalf of the Patriarch so that there is no question of tho proviso to Rule 14 of Order VI coming into play. The first only enjoins the Metropolitan to protect the several institutions of the Patriarch (of which the Simhasana Church of Kunnamukulam, which is the subject-matter of the present suit, is claimed as one) against those who were seeking to devour them. There is no reference whatsoever to any suit, and it can scarcely be said that this letter authorises the Metropolitan to institute a suit on behalf of the Patriarch. In fact the Patriarch does not seem to have been aware of the institution of tho present suit until it was brought to his notice some time later, for, in the letter of the 8th March, 1960, relied upon on behalf of the plaintiff, there appears the following significant statement;

'In spite of those communications (communications dated 26-12-1958 and 22-5-1959) we have come to know that some interested persons are attempting to trespass into Kunnamkulam Simhasana Church and properties, and reduce it to their possession and that you have filed a suit 67 of 1959 in Trichur Sub Court. As the representative of the Patriarch this is to be under you and you are responsible to look after it properly. Since it is your duty and responsibility to look after and to do all the needful to protect the rights and prestige of the Throne, you be diligent in your duties and do all necessary and needful to that end.'

While this shows that the Patriarch approved of the institution of the suit by the Metropolitan in the diligent and fervent discharge of his duties, the Patriarch was not even aware that the suit had been instituted for and on his behalf so that there can be no question of his having given at least post tacto authority for its institution.

6. I have been requested to give a month's time to the Metropolitan so that he may obtain a proper power of attorney from the Patriarch and cure the defect in the plaint if indeed there is a defect. But the Metropolitan has bad ample time and opportunity to do so, and I see no ground for granting him any further time, The plaint was filed on 6-7-1959 and in their written statement filed on 20-11-1959 the defendants took objection to it on the very score that is now upheld by me, and issue was joined in respect of this objection on9-3-1960. On 16-1-1960 the defendants had filed an application for framing such an issue and for trying it as a preliminary issue. The Metrop litan challenged a trial and it is in response to this challenge that the issue was, in fact, tried as a preliminary issue. It was on 14-3-1960 that the Court below pronounced its order, and now a further ten months has elapsed making in all 14 months since objection was taken by the defendants.

That apart, I doubt whether this is a case where the defect can be cured by the Metropolitan obtaining a power of attorney making him a recognised agent. For, Wali Mahomed v. Isak Ali, AIR 1931 All 507 (SB) and Subbiah Pillai v. San-karapandiam Pillai, AIR 1948 Mad 369 which lay down on the authority of Mohini Mohun Das v. Bungsi Buddan Saha Das, ILR 17 Cal 580 (PC) and Basdeo v. John Smidt, ILR 22 All 55 (FB) that defects of this nature can be subsequently cured, lay em-phasis on the requirement that the plaint, though not properly signed, must have been instituted with the knowledge and authority of the plaintiff, a requirement which, as we have seen, is wanting in this case.

7. The position then is that there is no plaint, properly speaking, of which the Court could take cognizance, the plaint before it not having been signed by the plaintiff or on his behalf as required by Order VI Rule 14 read with Order III Rule 1. The lower Court's decision to proceed with the trial is, I think, one that falls within Clause (a) Section 115 of the Civil Procedure Code.

8. I allow this petition and reject the plaint with costs both here and in the Court below.


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