Moran Mar Basselios Catholicos And... vs The Most Rev. Mar Poulose Athanasius And...

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 193 of 1952

Decision Date: 21 May, 1954

Coram: B. Jagannadhadas, Ghulam Hasan

In this matter, the Supreme Court of India considered a petition entitled Moran Mar Basselios Catholicos and another versus The Most Rev Mar Poulose Athanasius and others, which was decided on 21 May 1954. The judgment was authored by Justice B. Jagannadhadas, with Judges Ghulam Hasan and Sudhi Ranjan Hasan forming the bench that heard the case. The petitioner was Moran Mar Basselios Catholicos together with another individual, while the respondents comprised The Most Rev Mar Poulose Athanasius and additional parties. The decision is reported at 1954 AIR 526 and 1955 SCR 520, and it has later been cited as RF 1959 SC 31 and D 1970 SC 540. The dispute concerned provisions of the Travancore Code of Civil Procedure, specifically section 87 on review, which the Court noted are analogous to Order 47, rule 1 of the Code of Civil Procedure, 1908. The Court explained that the review provisions are confined by the precise language employed, and that the phrase “any other sufficient reason” requires a justification comparable to the reasons expressly listed in the rule. It reaffirmed the settled principle that, in an ejectment suit, the plaintiff must rely on the strength of his own title rather than on any weakness in the defendant’s case. An error apparent on the face of the record, the Court said, arises when a judgment fails to address a vital issue that determines the plaintiff’s title or the maintainability of the suit. Moreover, deciding against a party on matters that were not raised during trial also constitutes such an error. The Court further held that when a court assumes a concession by a party that was never made, or misinterprets the terms, scope, or attitude of a genuine concession, that misconception amounts to a sufficient reason analogous to an error apparent on the face of the record under Order 47, rule 1. Because such a misconception generally does not appear in the record, the aggrieved party must bring it before the Court by way of an affidavit. The Court then recounted the factual background: a suit filed in 1938 before the District Judge at Kottayam in Travancore had been dismissed, the plaintiff appealed the decree, and the appeal was allowed by a Full Bench of the Travancore High Court. The defendants subsequently filed a review application alleging that the judgment contained several mistakes or errors apparent on the face of the record; the High Court dismissed the review and refused to grant a certificate under article 133. The defendants were thereafter granted special leave to appeal to the Supreme Court.

The judgment that had been rendered by a Full Bench of the High Court of Travancore was set aside on appeal. The defendants then filed a review application asserting that the judgment contained several mistakes or errors apparent on the face of the record, but the High Court rejected that application. The same High Court also refused to issue a certificate under article 133, and consequently the defendants obtained special leave to appeal from the Supreme Court.

Subsequent political developments in India, culminating in the adoption of the new Constitution of India, brought about a re-organisation of the judicial system in the State of Travancore. Until the end of June 1949, the Travancore High Court Act, constituted by Regulation IV of 1099, remained in force. Section 11 of that Regulation required that any judgment of a Full Bench, whether arising from a decree of a District Court or from an appeal involving a certain monetary value, be submitted to the Maharaja for confirmation by his signature. Section 12 extended the operation of Section 11 “as far as may be” to judgments rendered after a review. In May 1949 the Covenant of Merger between the rulers of Travancore and Cochin was executed, providing for a Rajpramukh, and in July 1949 Ordinance II of 1124 was promulgated, repealing Regulation IV of 1099. Clause 25 of that Ordinance prescribed that a Full Bench would hear and decide appeals from District Court decrees involving the specified amounts, while Clause 26 dealt with the review of judgments by a Full Bench. The substantive provisions concerning the jurisdiction and powers of the High Court were later incorporated into Act V of 1125 and were continued under Articles 214 and 225 of the Constitution of India.

In the Supreme Court, counsel for the respondents argued that, because of the legislative and constitutional changes just described, the review application had become futile and should have been dismissed at the outset. The argument was based on the premise that, even if the review had been allowed, no body possessed the jurisdiction or authority to issue a final, effective judgment after the appeal. The counsel further contended that the present case had not been decided by a Full Bench under Section 25 of Act V and therefore the review should be governed by Section 26. Moreover, counsel maintained that if the original appeal were deemed to have been filed under Section 11 of Regulation IV of 1099, the review must be dealt with under Section 12, and any fresh judgment after review would have to be sent to the Maharaja for his sign-manual confirmation—a power the current Maharaja of Travancore no longer held. The Court rejected these submissions, holding that in view of the changed legal framework, any revival of the appeal following a successful review must be disposed of pursuant to Section 25 of Act V, which no longer required confirmation by the Maharaja.

The provision of 1125 did not require any confirmation of the judgment that was issued on the rehearing of the appeal by the Maharaja, the Rajpramukh, or any other authority. Assuming that the appeal were to be restored, it would be governed by section 12 of Regulation IV of 1099. Even under that circumstance, section 11 would have to be applied only “as far as may be,” and the part of section 11 that required confirmation by the Maharaja would be inapplicable in view of the events that had occurred. The Court referred to the authorities 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 ([1949] F.C.R. 36), Sha Mulchand & Co. Ltd. v. Tawahar Mills Ltd. ([1953] S.C.R. 351), Beg v. Pestan-ji Dingha and Another (10 Bom. H.C.R. 75), Madhu Sudan Chowdhri v. Musammat Chandrabati Chowdhraizi ((1917) 21 C.W.N. 897), Bekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiyar (A.I.R. 1940 Mad. 17), and Rex v. Northumberland Compensation Appeal Tribunal, Ex-Parte Shaw ([1952] 2 K.B. 338). The judgment summarized the facts that led to the appeal as follows. There were two rival sections of the Malankara Jacobite Syrian Christian community in Malabar, each represented respectively by the appellants and the respondents. Disputes arose between the two sections, and each claimed exclusive right to possess and administer the church properties. In 1938, the first and second respondents filed a suit in the District Court of Kottayam against the first and second appellants. The plaintiffs alleged that the defendants had committed acts of heresy and, consequently, became ipso facto alien to the Malankara Jacobite Syrian Church, rendering them disqualified and unfit to act as trustees or to hold any position or benefit in the Jacobite Syrian Church (paragraph 26 of the plaint). The District Judge, hearing the suit, delivered his judgment on 18 January 1943, holding that the acts and conduct imputed to the defendants did not amount to heresy, schism, or voluntary separation from the Church, and that, under Canon Law, no ipso facto departure from the Church could occur without a decision of a properly constituted ecclesiastical authority. Accordingly, the District Judge concluded that the plaintiffs were not entitled to maintain the suit and dismissed it. Aggrieved by the dismissal, the plaintiffs appealed to the High Court of Travancore. The appeal was heard by a Full Bench of three judges, one of whom expressed a dissenting view. On 8 August 1946, a majority of the High Court held that the defendants had repudiated the fundamental principles and tenets of the Malankara Jacobite Syrian Church and had established a new Church, thereby voluntarily separating from the original Church.

In the High Court’s majority judgment, it was held that the defendants had repudiated the fundamental principles and tenets of the Malankara Jacobite Syrian Church, thereby voluntarily separating from that Church and ceasing to be its members. The majority further concluded that the plaintiffs had been validly elected as trustees and, as such, were entitled to possession of the Church properties. Consequently, the appeal was allowed and a decree was passed granting possession of the disputed property along with other reliefs in favour of the plaintiffs. On 22 August 1946 the defendants filed a petition for review of this judgment, asserting that the record contained several apparent mistakes and that there were sufficient grounds for rehearing the appeal. The High Court considered the review application on its merits on 21 December 1951, rejected every point raised for review and dismissed the petition, holding that no error was apparent on the face of the record and that there were no sufficient reasons to grant a rehearing. The High Court thereafter declined to grant leave to appeal to the Supreme Court under Article 133 of the Constitution. The defendants then applied for special leave to appeal, and on 14 April 1952 the Supreme Court granted such leave, permitting an appeal against the High Court’s decision.

The case proceeded as Civil Appeal No. 193 of 1952, filed by special leave from the High Court judgment dated 21 December 1951, which itself arose out of the decree of the District Judge, Kottayam, dated 18 January 1943. Counsel for the appellants consisted of N. P. Engineer, assisted by P. N. Bhagwati, M. Abraham and M. S. K. Sastri. For respondent No. 2 the Attorney-General for India, M. C. Setalvad, along with the Solicitor-General, C. K. Daphtary, and K. P. Abraham, were instructed, the latter assisted by T. R. Balakrishna Aiyar and M. R. Krishna Pillai. The judgment was delivered by Justice Das on 21 May 1954. After briefly restating the circumstances that gave rise to the litigation and summarising the facts, Justice Das turned to a preliminary issue raised by the Attorney-General on behalf of the respondents. To address that point, it was necessary to consider the changes in the judicial administration of the State brought about by recent political developments culminating in the adoption of the Constitution of India. It was noted that the review application had been filed on 22 August 1946, a notice to show cause issued on 4 December 1947, and the preliminary question of maintainability decided on 29 June 1949. Throughout this period Regulation IV of 1099 was in force in Travancore, and Section 1 of that Regulation remained applicable.

In the regulation that was then in force, the explanatory material that did not affect the present issue was omitted, and Section 12 of that regulation read as follows: “11. (1) A Full Bench shall hear and decide all appeals from the decrees of the District Courts in suits where 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, if there is a difference of opinion, the judgment of the majority together with the case records, shall be submitted to the Maharaja so that the judgment may be confirmed by his Sign Manual. (2) Notwithstanding any provision of the Civil Procedure Code, the date of a decree shall be the date on which the judgment is declared in open Court after being confirmed by the Maharaja’s Sign Manual. Explanation I … (a) … (b) … (e) … Explanation II. 12. In cases decided under Section 11 of this Regulation, a Full Bench of the High Court may admit a review of the judgment, subject to the provisions of the Code of Civil Procedure. If, on review, a fresh judgment is passed, the provisions of Section 11 shall, as far as possible, apply.” The Court observed that under Section 12, when a fresh judgment is rendered on review, the rules of Section 11 continue to operate; consequently the new judgment must be submitted to the Maharaja for confirmation by his Sign Manual, and after such confirmation the judgment must be declared in open Court. This procedural position remained in effect until the end of June 1949. Subsequently, on 29 May 1949, the Covenant of merger was executed between the Rulers of Travancore and Cochin, with the concurrence and guarantee of the then Governor-General of India, to create, effective 1 July 1949, the United State of Travancore and Cochin having a common Executive, Legislature and Judiciary. Article III of the Covenant provided that, as of the appointed day, all rights, authority and jurisdiction belonging to the Ruler of either State that were incidental to the Government of that State would vest in the United State. Article IV stipulated that the United State would have a Rajpramukh, the then Ruler of Travancore being appointed the first Rajpramukh for the duration of his lifetime. In general terms, Articles VI and XI vested the executive and legislative authority of the United State in the Rajpramukh, subject to the conditions and periods specified therein. Article XXI retained the power of the Rulers to suspend, remit or commute death sentences. Exercising the powers conferred by Article XI, the Rajpramukh, on 1 July 1949, promulgated Ordinance No. I of 1124. Clause 3 of that Ordinance continued, for the portion of the United State that formerly formed Travancore, all existing laws until they were altered, amended or repealed, with a similar provision in clause 4 for the former Cochin territory.

The Covenant provided that, for the portion of the United State that had formerly been the State of Travancore, all existing laws would remain in force until they were altered, amended or repealed. A similar provision in clause 4 ensured the continuation of the laws of Cochin for the part of the United State that had formerly been the State of Cochin. On 7 July 1949 the Government issued Ordinance No II of 1124. Clause 4 of this Ordinance expressly repealed the Travancore High Court Act, identified as Regulation IV of 1099. Clause 8 of the same Ordinance, which is crucial to the present discussion, provided that “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 dealt with 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 subsequently defined in clause 18, which stated that, subject to the provisions of the Ordinance, the High Court would possess and exercise all jurisdiction and powers vested in it by this Ordinance, by any later law, and by any power or jurisdiction vested in the existing High Courts by any Act or Proclamation that was in force in the States of Travancore and Cochin immediately before the Ordinance came into effect. Clause 25, excluding two explanations that were not material, provided that a Full Bench would hear and decide all appeals from the decrees of the District Courts, the Court of a Subordinate Judge, or a Single Judge of the High Court in suits where the subject-matter value was not less than five thousand rupees and the amount in appeal was not less than that sum. Clause 26 then allowed a Full Bench of the High Court to admit a review of judgment in cases decided under section 25, subject to the provisions of the Travancore and Cochin Codes of Civil Procedure.

Clauses 18, 25 and 26 were 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 also repealed, among other provisions, Regulation IV of 1099 and Ordinance II of 1124. Subsequently, the Constitution of India, enacted in 1950, created a union of States classified in Parts A, B and C by the First Schedule. The United State of Travancore-Cochin became a Part B State. Under article 214 of the Constitution, the High Court of the United State of Travancore and Cochin was designated as the High Court of the Part B State of Travancore-Cochin, and article 225 continued the jurisdiction of, and the laws administered by, the then-existing High Court. The learned Attorney-General contended that, in view of the changes described above—which had the effect of establishing a common High Court for the United State of Travancore and Cochin with jurisdiction and powers defined therein—the present review application had become infructuous, because even if the review were allowed there would be no authority capable of exercising jurisdiction and power to pronounce an effective judgment after rehearing the appeal.

The changes previously described had the effect of establishing a single High Court for the United State of Travancore and Cochin, with jurisdiction and powers set out in the relevant legislation. Consequently, the application for review became ineffective, because even if the review were permitted, no authority existed that possessed the jurisdiction and power to issue a final judgment after the appeal had been reheard. It was observed that, under section 26 of the United State of Travancore and Cochin High Court Act, 1125, a review could be entertained only in cases that had been decided by a Full Bench pursuant to section 25 of the same Act. The present matter had not been decided by a Full Bench under section 25, and therefore a review could not be maintained under section 26. Moreover, it was argued that, if the appeal had been filed under section 11 of the Travancore High Court Regulation (IV of 1099), the review application should have been dealt with under section 12 of that Regulation. The Attorney-General further contended that, should the review be admitted and a fresh judgment be rendered after rehearing, the provisions of section 11 would have to be complied with; that is, the new judgment would have to be submitted to the Maharaja for confirmation by his sign-manual, and the decree would have to bear the date on which the judgment was pronounced in open court after such confirmation. It was pointed out that the Maharaja of Travancore no longer possessed the authority to consider, confirm, or reject judicial decisions, and it was submitted that, in view of this legal position, the review application had become ineffective and should have been dismissed by the Full Bench at the outset. The Court, however, did not accept this contention. The review application had been properly filed in the Travancore High Court, and that Court was required to decide whether to admit or reject the application. The judgment that might have been pronounced on the review application did not, under any legal provision identified, require confirmation by the Maharaja or any other authority. The proceeding was thus a validly instituted matter, and it remained pending as of 1 July 1949. Accordingly, under section 8 of Ordinance No. II of 1124, the matter had to be continued in the High Court of the United State as if it had originated in that High Court after the Ordinance came into force. In the present case, the High Court rejected the application for review. Had the High Court admitted the review, that admission would have revived the original appeal, which had been correctly filed in the Travancore High Court under section 11 of the Travancore High Court Regulation (IV of 1099). That revived appeal, having been commenced before Ordinance No. II of 1124 came into effect, would, pursuant to section 8 of that Ordinance, be treated as an appeal continued in the United State High Court, thereby preserving its pendency in the new judicial structure.

In this case, the Court explained that if the review were admitted, the original appeal filed in the Travancore High Court would be revived and, by operation of section 8 of Ordinance No II of 1124, would be treated as having been continued in the High Court of the United State as if it had originally begun there after the Ordinance took effect. The Court further observed that the same result would follow if, on the present appeal, this Court admits the review, because the revived appeal would then be deemed to have been commenced in the Travancore High Court and continued in the High Court of the United State pursuant to section 8 of the Ordinance. Consequently, under section 8 of the Act of 1125, the revived appeal would have to be proceeded with in that High Court as if it had initially started there after the Act became operative. The Court therefore stated that the old appeal, once restored by this Court, would, by the combined operation of section 8 of Ordinance No II of 1124 and section 8 of the Act of 1125, become an appeal pending before the High Court of the United State. Under the present Constitution, Travancore-Cochin is a Part B State, and article 214 makes the High Court of the United State of Travancore-Cochin the High Court of that Part B State, vested with the entire jurisdiction previously exercised by the High Court of the United State. Accordingly, the revived appeal must be disposed of in accordance with section 25 of the aforementioned Act, a provision that does not require any confirmation of the judgment by the Maharaja, the Rajpramukh, or any other authority. Even assuming that the revived appeal would be governed by section 12 of the Travancore High Court Regulation (IV of 1099), the Court noted that the provisions of section 11 would still apply “as far as may be,” and the part of section 11 requiring Maharaja’s confirmation would be inapplicable in the present circumstances. For these reasons, the Court rejected the preliminary objection raised against the admission of the review. Before addressing the merits, the Court cautioned that the scope of a review application is considerably narrower than that of an appeal. Under the Travancore Code of Civil Procedure, which mirrors Order XLVII, Rule I of the Code of Civil Procedure, 1908, the reviewing court possesses only limited jurisdiction defined by the specific language of the rule. A review may be granted on three grounds: the discovery of new and important facts or evidence not previously known despite due diligence; a mistake or error apparent on the face of the record; or any other sufficient reason, a phrase interpreted to require a reason comparable to the first two specified grounds.

The Court explained that a review of a decree may be predicated on three specific grounds: first, the discovery of new and important matter or evidence that was not within the applicant’s knowledge and could not have been produced at the time the decree was passed; second, a mistake or error that is apparent on the face of the record; and third, any other sufficient reason. The Court noted that the Judicial Committee has held that the expression “any other sufficient reason” must be interpreted to mean a reason that is sufficient on grounds at least analogous to those enumerated in the rule. This principle was articulated in Chhajju Ram v. Neki (1) and was reiterated in Bisheshwar Pratap Sahi v. Parath Nath (2). The Federal Court later adopted the same view in Hari Shankar Pal v. Anath Nath Mitter (3). Counsel appearing in support of the appeal recognised these authorities and submitted that the present case fell within the second ground, namely a mistake or error apparent on the face of the record, or a ground analogous to it. The Court observed that, of the ninety-nine objections raised in the grounds of review against the majority judgment of the High Court, only fifteen were actually argued before the High Court during the hearing of the application for review. Although many points were referred to by counsel for the appellants, the counsel emphasized three principal objections before this Court, and the Court proceeded to examine those objections. The first objection concerned the validity of the election of the first plaintiff as the Malankara Metropolitan, which made him the ex-officio trustee, and the subsequent elections of plaintiffs 2 and 3 as his co-trustees at the Karingasserai meeting. The pleading of that meeting appears in paragraphs 13 and 14 of the plaint. In paragraph 18 of the plaint the plaintiffs refer to a meeting said to have been held at the M.D. Seminary in December 1934, which the defendants rely upon; the plaintiffs contend that the meeting was not convened by competent persons and that due notice was not given to all churches in accordance with custom. In paragraph 20 of the defendants’ written statement they deny the factum or validity of the Karingasserai meeting relied upon by the plaintiffs, maintaining that the meeting was not convened by competent persons and that invitations were not sent to the large majority of the churches. In paragraph 29 the defendants repudiate the allegations made in paragraph 18 of the plaint and assert that their meeting was properly convened and that notice was given to all churches in Malankara. In paragraphs 16 and 18 of their replication the plaintiffs reiterate the allegations set out in the plaint. Issue 1(b) raises the question of the validity of the Karingasserai meeting of August 1935, while issue 6(a) raises the question of the validity of the M.D. Seminary meeting of December 1934. Because the suit seeks possession of church properties, the plaintiffs must establish their title as trustees; they can satisfy this burden only by adduced sufficient evidence to discharge the onus placed upon them under issue 1(b), irrespective of whether the defendants have proved the validity of their own meetings.

In this suit for possession of church property, the plaintiff was required to prove his title as trustee, because the law mandated that an ejectment claimant succeed solely on the basis of his own title. The defendants raised two objections to the Karingasserai meeting: first, that the meeting had not been convened by persons competent to do so, and second, that proper notice had not been given to all the churches. The learned District Judge addressed those objections in his judgment. In paragraph 164 he held, after considering the evidence, that the persons who called the meeting were not competent to convene it. In paragraph 165 he found that notice of the meeting had not been served on every church. During the final argument before the District Judge, counsel for the plaintiff admitted that there was no evidence in the plaintiff’s case showing that notices had been sent to all churches existing before 1086. The plaintiffs then put forward the position that, because the defendants and their supporters had adopted the new constitution (Exhibit AM) and thereby become “aliens” to the Church, they were not entitled to any invitation to the meeting. Their argument asserted that the Karingasserai meeting was intended only for representatives of the churches that remained loyal to Patriarch Abdulla XI and his successors, and consequently no notice to the dissenting churches was necessary. This line of reasoning effectively admitted that the defendants’ churches had not received notice. The District Judge rejected the plaintiffs’ submission, holding that the defendants and their supporters had not left the Church and therefore were entitled to notice. Because notice had not been proved, and the plaintiffs’ claim that notice was unnecessary was unavailing, the Judge concluded that the meeting had not been properly convened. He therefore saw no need to examine whether notice might have been given to churches that had not adopted the new constitution.

When the matter proceeded to the High Court, the majority of the judges considered the validity of the Karingasserai meeting in a brief and summary fashion. Justice Nokes observed that the lower court had found the meeting to be improperly convened, mainly because notice had not been given to the defendants’ party, as noted in paragraphs 166 and 167 of the lower court’s judgment. He stated that the failure to give notice was not contested, but that the defendants justified the omission by relying on a Patriarchal monition (Exhibit Z). Justice Nokes further noted that the adoption of the new constitution in 1934, which occurred about eight months before the Karingasserai meeting, clearly demonstrated the defendants’ repudiation of the Patriarchal Church. In his view, this fact rendered the lack of notice permissible, apart from the monition. Consequently, he held that the lower court’s conclusion that the meeting represented only a minority of the Church, and its finding that the meeting had not been convened by competent persons (paragraphs 164 and 167), were erroneous. Justice Sathyanesan, on the other hand, remarked that the sole defect identified was the failure to invite the churches controlled by the first defendant, and he reasoned that, having already joined the new Church, those churches were rightfully excluded from the invitation. The record shows that Justice Nokes addressed the competency of the conveners of the Karingasserai meeting in a single concluding sentence, without a detailed analysis, while Justice Sathyanesan did not engage with the competency issue at all, mistakenly assuming that the defendants’ only concern was the lack of invitation.

It was observed that the justification for the lack of notice derived not only from the Patriarchal monition but also from other considerations. The lower Court had held that the meeting represented only a minority of the Church and further concluded, as stated in paragraphs 164 and 167 of the judgment, that the meeting had not been convened by persons possessing the necessary authority. Justice Sathyanesan, however, offered a succinct comment stating: “The only defect pointed out was that no invitation of the meeting was given to the churches under the control of the first 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.” The effect of this observation was that the issue concerning the competence of those who called the Karingasserai meeting was essentially resolved by Justice Nokes in a single concluding sentence of the quoted paragraph. The analysis indicated that Justice Nokes did not devote substantial thought to evaluating the authority of the conveners of that meeting. Likewise, Justice Sathyanesan did not properly address the competence question and, mistakenly, limited his consideration to whether the churches under the defendants’ control had received notice. The learned Attorney-General highlighted that Justice Sathyanesan’s opinion was a supplementary one, prefaced by his full agreement with the findings of Justice Nokes. Such agreement would have carried weight only if Justice Nokes had fully examined the competence issue, which he had not. Consequently, the Court concluded that neither judge had seriously considered the question of who was duly authorized to convene the Karingasserai meeting. Regarding the service of notice to all churches, Justice Nokes, in the cited passage, held that the defendants had effectively withdrawn from the Church by adopting the new constitution referred to as Exhibit AM, and therefore no notice was required to be served upon them. Justice Sathyanesan, in the same passage, concurred that because the defendants had become members of a new Church, they were not entitled to an invitation to the Karingasserai meeting. Having overturned the District Judge’s finding and determining that the defendants had left the Church by adopting Exhibit AM, the High Court judges were required to investigate whether every church not aligned with the plaintiff had also adopted Exhibit AM, and if any had not, whether those churches had been summoned to the meeting. It was noted that the High Court’s judgment appeared to indicate that churches which adopted Exhibit AM did so by participating in the Mar Dionysius Seminary meeting. The arguments referred to various figures presented in the District Judge’s judgment concerning the number of churches that, according to the evidence, had attended the meeting, but it remained unclear exactly how many out of the total of three hundred ten churches were involved.

The Court observed that the churches which the defendants asserted were wholly aligned with them, as identified in Exhibit 272, had taken part in the M. D. Seminary meeting and had formally ratified the new constitution known as the Ex AM. The Court noted that if the adoption of the Ex AM serves as the criterion for deciding whether a notice is required, it becomes necessary to examine whether every church that was not allied with the plaintiffs and that had not adopted the Ex AM had nevertheless been served with notice. In addition to the issue of whether proper service of notice had been effected, the Court considered the question of who possessed the authority to convene the Karingasserai meeting at which the plaintiffs claim to have been elected. While Mar Geeverghese Dionysius was alive, he acted in his capacity as President of the Malankara Association to summon the Association’s meetings. After his death, the Court found that no clear rule existed to determine who was competent to issue a notice of meeting. The learned Attorney-General submitted that if every member of the Association had attended the meeting, the defect of improper notice would be immaterial. However, the Court questioned whether indeed all members had been present, particularly if the faction of defendants that had adopted the Ex AM might have been excluded. The Court further noted that neither of the two majority Judges of the High Court addressed either the universal service of notice to all churches or the competence of the individuals who issued the notice for the Karingasserai meeting, and that neither Judge arrived at a definitive conclusion on these points. Consequently, the Court held that the majority judgments were defective on their face because they failed to adequately consider and resolve a pivotal issue upon which the plaintiffs’ title and the maintainability of the suit depended, deeming this omission a clear error apparent on the record.

The Court then turned to the argument advanced by counsel for the appellants that the majority decision rested on a misconception regarding a concession allegedly made by the defendants’ advocate. The Court recalled that Issues 14 and 15, as earlier quoted, sought to determine whether the defendants had left the Church by committing acts of heresy or by voluntarily relinquishing their allegiance to the ancient Jacobite Syrian Church, thereby establishing a new church and drafting a new constitution. In parallel, Issues 19 and 20 examined whether the plaintiffs and their supporters had themselves formed a new church and separated from the old Church because of the various acts and claims described. The Court emphasized that, because the present proceeding is an ejectment suit, it is more crucial for the plaintiffs to establish their own title by obtaining favorable rulings on Issues 19 and 20 than to merely defeat the defendants’ title by securing adverse rulings on Issues 14 and 15. The Court observed that a mere destruction of the defendants’ title, without a corresponding affirmation of the plaintiffs’ own title, would not advance the plaintiffs’ case.

It was emphasized that the present action was instituted by the plaintiffs in their capacity as duly appointed trustees and not under a provision comparable to section 92 of the Civil Procedure Code, which would have been used to remove the defendants from trusteeship or to devise a scheme for the management of the trust property. The learned District Judge, in paragraph 132 of his judgment, observed that the allegations and conduct ascribed to the defendants did not constitute heresy and did not render the defendants or their supporters heretics or outsiders to the faith. He further held that even if the matters mentioned in issue 15 were proved, they would not amount to heresy nor to a voluntary renunciation of allegiance to, or secession from, the ancient Jacobite Church.

Conversely, in paragraph 133 the same judge concluded that the plaintiffs and their followers, by persisting in the position first taken in 1085 and maintained ever since, had unlawfully and unjustifiably caused a division within the Malankara Church. The judge described this conduct as amounting, in a sense, to a persistent schism. Nevertheless, he ruled that the plaintiffs and their partisans had not become outsiders to the Church nor had they created a separate Church, because no proper ecclesiastical authority had found them guilty and imposed removal from the Church or excommunication. It was noteworthy that the judge found the allegations against the defendants to be unproven, while the allegations against the plaintiffs were deemed proved. He made no distinction between acts of heresy and acts of voluntary separation from the Church, treating both categories alike.

The judgment also recalled the interpleader suit of 1913, wherein the District Judge held that by accepting Abdul Messiah as their ecclesiastical head or by denying the authority of Abdulla II, the trustees Mar Geeverghese Dionysius and his co-trustees did not become aliens to the faith. Furthermore, in the rehearing of an appeal reported in 45 T.L.R. 116, the court examined similar accusations against the defendants—apart from the adoption of Exhibit AM—and concluded that those acts did not constitute a voluntary separation from the Church by establishing a new denomination, and that the precedent of the Free Church case was inapplicable. In the present matter, the District Judge addressed issues 15, 16, 19 and 20 together, all of which related to questions of heresy and voluntary separation. In light of the appellate decision in the earlier suit, the judge apparently made no distinction between heretical acts and voluntary separation and held that there was “no” further basis for finding ipso-facto heresy or loss of ecclesiastical status.

In the present case the Court observed that a priest or prelate could lose his status, or a member could lose his membership in the Church, only by a finding of heresy that operated ipso facto, or by a loss of status that operated ipso facto, but that such consequences could arise only after the offender had been tried and punished by a competent ecclesiastical authority. The Court noted that the testimony of the seventeenth witness, who was the delegate of the Pope, was offered to support the proposition that no automatic loss of office or membership could be inflicted without a proper trial. In considering this backdrop, the Court recognised that the next step was to examine whether there had been a misunderstanding regarding a concession that had been put forward by counsel for the defendants. Justice Sathyanesan, in paragraph four of his judgment, referred to a concession that the learned advocate for the defendants was said to have made. The advocate’s statement was recorded in the judgment as follows: “…….” However, the Court also recorded that the learned advocate for the respondents subsequently clarified the matter by fairly conceding that the plaintiffs had not left the Church and that they remained proper members of the original Jacobite Syrian Church, just as any other faithful member.

The Court further explained that another clarification was offered by the learned advocate for the appellants. That clarification asserted that, irrespective of any past events, the plaintiffs did not maintain that the Patriarch possessed the power to interfere in the internal administration of the Malankara trust properties. The plaintiffs, according to their pleadings, had clearly expressed their position at the earliest stage of the proceedings. In pleading number 124(1) they had submitted that “the Patriarch as the ecclesiastical head of the Malankara Church could exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church properties.” The Court observed that the concession made by the defendants’ counsel, which was supported by the case of (I)L.R. [1904] A.C. 515, removed the need for an extensive discussion of several ancillary issues. Consequently, the Court found it worthwhile to pause and consider the significance and the consequences of that concession. The concession, the Court explained, led to the following understandings: first, that the Patriarch was not an alien to the Church, meaning that the Patriarch and his predecessors were the true and lawful heads of the original Jacobite Syrian Church; second, that the plaintiffs and their supporters, while holding that (a) the Patriarch has only spiritual supervision over the administration of the trust properties by the trustees, (b) the Patriarch alone can consecrate a Morone, (c) Exhibit BP constitutes the authentic canon of the Jacobite Church, and (d) the Catholicate was not properly established, could not on those grounds be regarded as having become aliens to the original Church. The Court therefore turned the question to whether the defendants had actually seceded from the original Church and formed a new Church. In the nature of the suit, the plaintiffs could succeed only if they established two points: first, that the defendants were using the trust properties belonging to the Malankara Jacobite Church for the maintenance, support and benefit of a different body, namely the Malankara Orthodox Syrian Church; and second, that the plaintiffs were the duly elected trustees of those properties. The Court also noted that Justice Nokes, at pages 355-356 of the report, referred to the same concession, observing that in this Court the defendants’ advocate did not attempt to disturb the finding that the plaintiffs had not become aliens to the Church, and that, as previously stated, his argument was based on that concession.

In the appeal, counsel argued that both the plaintiff-trustees and the defendant-trustees remained members of the same church, and therefore the dispute should be decided on that basis. The lower-court counsel, however, withdrew that position because the written statement contained an admission that effectively supported the plaintiff’s case. In that statement the plaintiffs declared, “we are the trustees of the Patriarch’s church,” whereas the defendants asserted, “we are the trustees of a church to which the Patriarch is an alien.” No effort was made by the defendants to contest the finding that the trust had not been altered; any contrary claim would have offered no defence and would have amounted to a further admission of the plaintiff’s case. Nevertheless, the presence of this allegation in the pleadings highlights the defendants’ attitude toward the trust.

Further down, the learned judge observed that the court rejected the general allegation of separation (judgment, paragraph 133) but accepted the special allegation concerning the plaintiffs’ view of temporalities (paragraph 108). The judge also recorded findings on the limited scope of the Patriarch’s powers in temporal matters (paragraphs 58 and 60), findings that appeared to rest on an erroneous premise that a person subject to two legal systems may be punished for different aspects of the same offence under only one system (see paragraph 57). The general finding was challenged in the memorandum of objection on grounds 10 and 11, but the defendants did not raise this issue in their arguments, which, as previously noted, were premised on the contention that both parties remained members of the church.

A plain reading of the two judgments suggests that the majority of judges held that, even if, as the District Judge concluded, the plaintiffs had engaged in conduct ascribed to them, it was unnecessary to determine whether that conduct constituted merely heresy or also the establishment of a new church, or whether canon law requiring an ecclesiastical verdict applied to both heretical acts and other acts. This approach stemmed from the judges’ perception of a concession made by the defendants’ counsel—that the plaintiffs had not left the church. Nevertheless, the judges felt obliged, despite the defendants’ analogous claim, to examine whether the defendants had voluntarily exited the church by creating a new church, as indicated by their actions.

Counsel for the appellants argued, and the court found persuasive, that the majority of judges did not explore whether voluntarily leaving the church is a concept distinct from acts of heresy, nor did they consider whether the conduct imputed to the plaintiffs—apart from being heretical from an ecclesiastical standpoint—also amounted to a voluntary departure from the church.

The Court observed that the earlier judges had not examined whether the act of establishing a new church constituted a voluntary departure from the existing church, separate from an act of heresy. It was also noted that they had not considered whether the application of Canon law, which demands a verdict from an ecclesiastical authority, was required in both situations. Consequently, the judgment appears to rest on what the judges regarded as a concession made by the defendants’ counsel—that the plaintiffs had not exited the church. The counsel for the defendants argued that this premise was a misapprehension. He relied upon the affidavit of Sri E. J. Philipose, advocate, together with two letters addressed to him by the senior counsel. In the first letter the senior counsel wrote: “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.”

The second letter contained these passages: “Throughout my argument was that the plaintiffs had steadily and consistently set at naught the fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court. As between the charge and counter-charge of violation of the foundation rules, I expressed it as my view that while their views may be corrected by the Court neither party should be treated as having become aliens to the church by reason merely of erroneous views. That is what is explained in paragraph 17 of the grounds. My opinion so expressed is not to be treated as a concession of the one case and a submission as to the other. If my view of the law was not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiring to be considered by the Court.” The review petition’s ground No. 17 states: “Their Lordships’ observation that the defendants’ Advocate based his case on the ground that both parties were still within the Church and that the defendants’ Advocate conceded that the plaintiffs have not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else is inaccurate and incomplete, and misleading. The Advocate devoted a great part of the argument to showing that the plaintiffs have departed from the constitution as settled by the Royal Court Judgment.”

The parties argued that a mere difference of opinion on the powers of the Patriarch or on the canon to be followed does not automatically constitute a secession of either side from the Church. Accordingly, they maintained that, in law, both the plaintiffs and the defendants should be regarded as remaining within the Church. The Court, however, was criticised for extracting that statement from its original context, treating part of it as an admission that favoured the plaintiffs while discarding the remainder as an untenable argument concerning the defendants. It was contended that if the passage were to be considered an admission at all, the Court should have either accepted it in its entirety or rejected it in its entirety, rather than slicing it piecemeal and employing only a fragment. The reasons that had been articulated for concluding that the defendants had withdrawn from the Church were said to apply even more forcefully to the plaintiffs. Consequently, the Court ought to have dismissed the suit at the threshold. The judgment was also said to overlook the fact that the fundamental constitution of the Church had been established by the earlier Royal Court Judgment, and that by repudiating that constitution the plaintiffs had, in effect, seceded. If the Court’s view was that departure from the foundational rules removed a party from the Church, that principle should have been applied uniformly to both parties. Therefore, a statement that neither party had left the Church could not be employed to sustain the plaintiffs’ claim while the same statement was rejected as untenable when supporting the defendants’ similar rights. Moreover, the Court failed to notice that the defendants’ counsel had strongly urged that proper charges must be framed, an enquiry must be held, and adequate grounds must be established before a person could be expelled from the Church, and that no indication was given that such procedural safeguards had been satisfied in the present case. The Court also omitted the proposition that an entire body of persons cannot be deemed to have left the Church when no allegations or proof exist against any of them. Finally, the so-called admission did not, in any manner, undermine the defendants’ case that the Patriarch, the plaintiffs, and their supporters had voluntarily left the Church and thereby ceased to be its members.

The Attorney-General objected strongly to any reliance on the facts contained in the affidavit of E.J. Philipose or the letters annexed to it. He referred the Court to the decision rendered in Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd. (1) together with the authorities cited therein, and to the case of Reg. v. Pestanji Dinsha and Another (1). It was observed, however, that the point of criticism in that earlier decision was the absence of an affidavit filed before the trial Court for the purpose of rectifying the record. The Attorney-General’s objection therefore rested on the principle that the Court should not consider unauthenticated documentary material when the precedent established that an affidavit must be presented to the trial Court to correct any alleged error in the record.

In the appeal, it was contended that the trial judge had erroneously recorded a matter, a point supported by citations to the reports at (1) [1953] S.C.R. 351 at p. 366 and (2) 10 Bom H.C.R. 75. The Privy Council, in Madhu Sudin Chowdri v. Musammat Chandrabati Chowdhain (1), advised that the correct course was to address the court whose judgment was alleged to contain the error. In the present case, an affidavit was filed in the appeal court itself while the Chief Justice and Nokes J. were still serving, thereby satisfying the procedural requirement of bringing the matter before the appellate tribunal.

The learned Attorney-General argued that, according to the precedent cited, the appropriate method was to apply to the court whose judgment was founded on a mistaken view of a concession made by the advocate appearing before it, and questioned how that court could be approached unless the matter proceeded by way of review. The Court noted that the Madras decision referred to in its earlier judgment expressly indicated that such an application must be made by way of review. Patanjali Sastri J., then sitting singly in the Madras High Court, affirmed this principle in Rekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiar (2), holding that a misconception by the court regarding a concession made by an advocate, or regarding the party’s attitude, constitutes a ground analogous to those listed in the first part of the review provisions and therefore provides a solid basis for granting a review.

Addressing the Attorney-General’s contention that the affidavit and accompanying letters could not be considered “the record” within the meaning of Order 47, rule 1, the Court rejected a restrictive construction of the term. It observed that Denning L.J.’s narrow interpretation in Rex v. Northumberland Compensation Appeal Tribunal Ex-Parte Shaw (1)—which confined “record” to the initiating documents, pleadings and adjudication while excluding evidence and other material—was not applicable here. When the alleged error consists of the court assuming a concession that was never made, or misinterpreting the terms, scope or extent of a concession, such a mistake generally does not appear on the formal record. Accordingly, the error must be presented to the court through an affidavit, as recommended by both the Privy Council and this Court, and this can only be effected by a review application.

The authorities cited demonstrate that a misconception of the court is to be treated as a reason comparable to an error apparent on the face of the record. Consequently, the Court held that reliance on the affidavit as an additional ground for reviewing the judgment was permissible.

In relation to the affidavit, the accompanying letters, and ground number seventeen of the review, the Court observed that the defendants had never abandoned the position that the District Judge had upheld, namely that the plaintiffs were guilty of the acts and conduct attributed to them. The counsel representing the defendants accepted the canon law as interpreted by the District Judge, which held that no person could leave the church without a verdict from an ecclesiastical authority, irrespective of whether the alleged acts constituted heresy or the establishment of a new church that would render the persons involved alien to the faith.

The Court noted that, had the majority of Judges believed that this interpretation of canon law was incorrect, they would have needed to recognise that the same acts might possess both an ecclesiastical character—making them punishable as heresy—and a non-ecclesiastical character, representing a voluntary separation from the church that does not require an ecclesiastical verdict to remove a person from the communion of the Church. Accordingly, the majority Judges were obliged to examine whether the acts for which the plaintiffs were found guilty had indeed been performed by them and whether those acts simultaneously amounted to an ecclesiastical offence requiring excommunication and to a voluntary separation that did not require any ecclesiastical judgment. The Court found that, on the face of the judgment, the Judges had failed to conduct this dual analysis.

The Attorney-General submitted that five specific allegations were made against the plaintiffs: (1) that the Patriarch possessed temporal powers over the properties of the Malankara Church; (2) that the Patriarch alone could excommunicate and ordain a Bishop; (3) that only the Patriarch could consecrate a Morone; (4) that the applicable canon of the Church was Exhibit XVIII in O.S. No. 94 of 1088; and (5) that the Catholicate had not been validly instituted in the Malankara Church. The Attorney-General argued that the majority Judges had addressed these charges either directly or indirectly and consequently that no prejudice had been caused. However, the Court observed that the Judges could not claim to have considered all of the allegations, as they had not reached a definitive finding on several of them. Issue 20(1) listed multiple charges; although the majority judgment referred to charges (a) and (b), it had not dealt with charges (c), (d) and (e). Regarding the temporal power of the Patriarch, the District Judge, in paragraph 58 of his judgment, held that the Patriarch had no temporal authority, jurisdiction, or control over the Malankara Jacobite Syrian Church and its temporalities, and that his power of general supervision was confined to spiritual governance.

In this part of the judgment, the Court observed that the concession granted to the Patriarch in Exhibit DY did not, by necessary implication, give the Patriarch the authority to intervene in the management of the Church’s temporal affairs and properties. Consequently, the contrary finding recorded in the 41 T.L.R. I decision could not be given any effect after that decision had been set aside, except for the three specific points that had been previously mentioned. The Court further noted that the majority of the Judges had not examined whether the plaintiffs had attributed to the Patriarch full temporal powers or only the limited powers that were conceded in Exhibit DY. Moreover, the Court remarked that the Judges had not considered, in the event that the plaintiffs had originally affirmed the doctrine of full temporal authority of the Patriarch—thereby allegedly breaching a fundamental article of the Church’s law—and that such breach might have rendered the plaintiffs outsiders, whether a later modification of their position by accepting the limited powers in Exhibit DY would alter the legal consequences. Turning to the question of the authority to consecrate Metropolitans, Justice Nokes had held that a duly appointed Catholicos possessed, under both formulations of the relevant Canon, the power to consecrate Metropolitans without the involvement of a Synod, and that by asserting this power the defendants had not become outsiders to the faith. However, the learned Judge did not explore the effect of this conclusion on the plaintiffs. The Court indicated that this finding could imply that the contention that only the Patriarch, and not the Catholicos, possessed the ordination power would itself constitute a deviation from the Canon. Regarding Issue 20(1)(a)(1), which concerned the consecration of Morone, the Court recorded a finding in favour of the defendants. The Court observed that if the defendants had not left the Church by claiming that Morone could be consecrated by the Catholicos or by a Metropolitan in Malankara, then the Judge should have examined whether the plaintiffs’ denial of that right amounted to a departure from canonical law, a step that the Judge had omitted. Concerning Issue 20(1)(a)(iii), which dealt with the establishment of the Catholicate, the plaintiffs, in pleading No. 124, asserted that no Catholicate had ever been established. The District Judge, relying on the Kalpana of Abdul Messiah presented in Exhibit 80, concluded that the Jacobite Catholicate had been revived. The respondents’ appeal ground No. 17 proceeded on the assumption that a Catholicate had indeed been established. Justice Nokes held that Abdul Messiah was a Patriarch, that a Patriarch alone could, without the Synod, establish a Catholicate, and that such a Catholicate had been created by him, even though the historic Catholicate of the East had not been revived. In contrast, Justice Sathyanesan found the establishment of a Catholicate in Malankara to be questionable, clandestine and not in accordance with canon law, and therefore concluded that no Catholicate had been established. The two judgments therefore appeared to be somewhat inconsistent on this point. In any event, Justice Nokes had not considered whether the stand taken by the

In this case the Court observed that the plaintiffs’ assertion that no Catholicate had ever been established amounted to a departure from the injunctions of Canon law. A careful reading of the majority judgments led the Court to conclude that the majority judges had been misled by a misunderstanding concerning the nature and scope of the concession alleged to have been made by the defendants’ advocate. The Court explained that if the acts attributed to the defendants were to be regarded as a voluntary separation from the Church, the learned judges ought to have examined whether the acts attributed to the plaintiffs likewise constituted a voluntary separation.

The Court further noted that the defendants had not claimed to have left the Church by asserting that a Catholicate had been established, that the Catholicos could ordain Metropolitans, and that he could consecrate Morone. Consequently, the Court held that the judges should have considered whether the plaintiffs, by denying those very assertions, had themselves left the Church. The Court found that the judges failed to undertake this analysis. Moreover, the judges could not rightly decline to address the factual question merely because the defendants’ advocate had admitted that the plaintiffs remained within the Church. The Court described that admission as an admission concerning Canon law, and explained that the decision that the defendants had voluntarily left the Church, even in the absence of an ecclesiastical verdict, necessarily implied that the concession made by the defendants’ advocate – that an ecclesiastical verdict was a condition precedent to voluntary separation – was plainly erroneous. Accordingly, the Court held that the erroneous concession of law made by the defendants’ advocate could not be relied upon to protect the plaintiffs.

The Court observed that the fact that cross-objection No. 11 filed in the High Court by the defendants had not been pressed was irrelevant. In the Court’s opinion, for the reasons already set out, the objection raised by the appellant’s advocate before this Court was well-founded and the majority judgments were afflicted by an error of a kind that, under the Code of Civil Procedure, provided sufficient ground to allow a review.

The Court also addressed the final point raised by the appellant’s advocate. Although certain matters had been agreed to be excluded in connection with issue No. 11(a), the learned judges had taken an adverse view against the defendants on matters that had been left out by agreement. Issue No. 11 concerned the powers of the Patriarch, with clauses (b) to (h) relating to specific powers. Clause (a) of that issue was characterized as vague and expressed in very general terms. The Court reproduced paragraph 60 of the District Judge’s judgment, which stated that counsel on both sides agreed that it was unnecessary for the present suit to determine exhaustively all the powers of the Patriarch as the supreme spiritual or ecclesiastical head of the whole Jacobite Church, including Malankara, and that such a comprehensive definition lay beyond the jurisdiction of the court.

The Court observed that it was beyond the jurisdiction of this province or the competence of this court to attempt a comprehensive definition of the Patriarch’s overall powers. Whether the Patriarch was the supreme spiritual head or the supreme ecclesiastical head, the Court noted that his powers concerning the matters listed in clauses (b) to (h) of Issue II—issues that formed the substantive dispute—had already been considered and delineated under Issue II. The Court further stated that the extent to which these powers had been recognised or affirmed by courts, custom, practice and precedent in relation to Malankara was expressly set out, and that both parties conceded that these findings were sufficient for the purposes of the litigation.

Following the parties’ agreement, the Court pointed out that Issue 11 was confined solely to certain specific powers of the Patriarch. The findings on those specific powers were introductory in nature and did not by themselves produce any operative result; instead, they served as a foundation for other issues, notably Issues 14, 15, 19 and 20. Consequently, with the general Issue II(a) having been abandoned, the remaining issues were automatically narrowed to address only the particular acts that related to the specific powers of the Patriarch.

The Court, however, noted that the majority of the Judges had examined three matters that the parties had previously agreed to exclude: (a) the obligation to obey the Patriarch regardless of whether he had been canonically installed; (b) the extent of the Patriarch’s autonomous right to decide matters of faith; and (c) whether the Patriarch possessed the authority to approve a Catholicos, such approval being deemed necessary. The Court emphasized that these matters were not pleaded, no specific issues had been raised concerning them, and, under the circumstances, they should not have been investigated. The Court suggested that these points might be subsumed under other issues.

The Court further recorded that the learned Judges had held that the new constitution, Exhibit AM, amounted to a repudiation of the Patriarch’s authority on four bases: (1) the installation of a Catholicos without the Patriarch’s involvement; (2) the absence of any provision requiring the Patriarch or the Malankara Metropolitan’s approval; (3) the ordination of a Metropolitan and the issuance of Stigmatics by the Catholicos; and (4) the right to collect Ressissa. These bases were said to be covered by Issues II(b), II(c), II(g) and II(h), as well as by Issues 10(b), 14, 15 and 16.

Assuming that this characterization was correct, the Court concluded that the Judges had nonetheless relied on the three aforementioned points, which did not fall within any of the issues framed for the case except for Issue II(a), which had been abandoned. The Court held that deciding against a party on matters that were not among the issues put to trial constituted an error apparent on the face of the record. The Court considered any speculation about the effect of those matters on the Judges’ reasoning to be futile.

The Court observed that the material placed before it was quite sufficient for disposing of the appeal, and consequently it was not necessary to examine the several other minor points that had been raised. In the Court’s opinion, the appellants had successfully shown a valid ground for permitting their application for a review of the earlier decision. Accordingly, the Court allowed the appeal, set aside the judgment of the High Court, and admitted the application for review. Because the different issues involved in the appeal were intimately interconnected, the Court directed that the entire appeal be reheard on all points, unless both parties agreed to accept any of the findings previously made by the High Court. The Court further ordered that costs should follow the event and directed that the appellants be awarded the costs incurred in this appeal before the Court as well as the costs of the application for review before the High Court. It was also made clear that the observations contained in this judgment were made solely for the purpose of the review application 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. In conclusion, the appeal was allowed.