C.S. Robert and A.S. Arockiaraj vs M. Kanagappan and Others

R. Subbiah, J.—This Review Application has been filed to review the judgment (29.04.2003) made in L.P.A. No. 80 of 1998 pursuant to

an observation made by the Hon''ble Supreme Court in S.L.P.(Civil) No. No. 9764/2003 to approach this Court by way of review petition.

Review Applicants are plaintiffs and respondents 1 to 4 herein are defendants before the Trial Court. For easy reference, parties are hereinafter

referred to as arrayed in the original suit.

The brief facts, which are necessary to decide the issue involved in the Review Application, are as follows:

(a) Plaintiffs filed a suit in O.S. No. 396 of 1993 on the file of Additional Sub Court, Dindigul, against defendants for

(a) declaring that suit Church and properties described in the Schedule belong to entire Catholic Public of Vakampatti in Dindigul Taluk;

(b) in consequence thereof, granting a permanent injunction restraining defendants 2 to 4 from in any way interfering with the management and

administration of suit Church and its properties by plaintiffs as Trustees and for removing 1st defendant from Trusteeship and directing him to

deliver the management of Church and its properties to the plaintiffs;

(c) directing 1st defendant to render the accounts of income and expenditure of Church and its properties for the period of his management from

the time he had assumed Trusteeship;

(d) directing 1st defendant to pay Rs. 40,000/- being the amount spent by 1st plaintiff for construction and reclamation of the Church out of the

income from the Church;

(b) According to plaintiffs, the St.Mary Magdalin Church at Vakampatti was constructed in the Village Natham more than 200 years ago by the

Catholic Pubic of Vakampatti by collecting donations and taxes from the public and by contributing their physical labour. Thus, the Church was

construed by entire Catholic Public of Vakampatti under the supervision of Nattamai''s and Periyathanams. For proper administration of Church

and its property donated to the Church by the Catholic, a Committee of five members headed by Katianni C.Savarimuthu, father of 1st plaintiff

was formed even 90 years prior to the institution of suit. The Parish Priest of N.Panchampatti, which is the nearest Church, had been invited by the

people to perform the prayer in the Church on every Sunday and on all festival occasions. The Priest used to receive the amount paid by

worshippers out of love and respect towards the Priest. Neither the Parish Priest of N.Panchampatti nor his superiors in Dindigul or Trichy had any

right or control over the Church. Out of five members of Committee, three Trustees were appointed by public and the office of the Trusteeship had

been made hereditary. Originally, C.Savarimuthu, father of 1st plaintiff, K.S.Mariasanthanam, father of 1st defendant and one A.Savarimuthu were

the three Trustees of Church. One of the three would be the Managing Trustee and look after the entire management and accounts for one year

and thus, each one of the three Trustees would become the Managing Trustee for one year by turn system. Thus, as per the long and continued

usage of the institution, the Management vested on the Trustees of the Committee. The main festival of St.Mary Magdalin Church takes place from

18th July to 22nd July every year and after the festival, on 23rd of July, the accounts would be settled and the management would change.

(c) At present, plaintiffs and 1st defendant are the three Trustees in management of the Church and its properties. The other two committee

members are S.Arockiaraj and A.Isaki. For the year 1992-93, which ends by 23rd July 1993, 1st defendant is the Managing Trustee. While the

1st plaintiff was in management for the year 1988-89, he constructed the temple car shed at the cost of Rs. 10,000/- and again when he assumed

the management in the year 1991-92, he effected repairs to the Church and painted the Church building. For all the renovation and construction

works, the 1st plaintiff had spent Rs. 30,000/- out of his own resources as the income from the Church was not sufficient. Hence, the total amount

of Rs. 40,000/- spent by 1st plaintiff out of his own resources had to be paid to him from the income of the Church. First defendant, who is in

management of the Church, has agreed to reimburse the same; but he did not do so in spite of repeated demands made by 1st plaintiff, whereas

first defendant is appropriating the entire income from the Church and its properties without rendering true accounts. Apart from that, being the

Managing Trustee, 1st defendant is in custody of gold jewels weighing about 15 sovereigns, the vessels used for worship and ornaments and

clothes used for, for decorating the deity and cash to the tune of Rs. 15,000/-, which are described in ''B'' schedule. There are about 12 tamarind

trees in the vacant space around the Church and the usufructs of the same are also taken by 1st defendant. He has to account for all the income

and expenses of the Church and its properties to the other Trustees. But, he is refusing to render true and proper accounts and settle the account

due to 1st plaintiff; instead, he has been making arrangements to transfer the Church and all its properties to the Arch Bishop of Trichy Diocese,

the 4th defendant, who is the superior of defendants 2 and 3. Plaintiffs came to know about this and immediately they sent a legal notice on

31.03.1993 objecting to any such transfer or alienation. Having received the same, defendants did not send any reply. 1st defendant has no right to

execute any document transferring the right or title of the Church and its properties to anybody as they belong to the entire Catholic Public of

Vakampatti. Thereafter, plaintiffs reliably learnt that 1st defendant has secretly transferred the right of management of the Church and its properties

for a considerable price to 4th defendant and is creating records of transfer and attempting to secrete the amount for himself and leave the place.

Hence, the present suit has been for the said reliefs.

(d) Resisting the said case, 1st defendant filed a written statement inter alia stating that suit is liable to be dismissed because plaintiffs are not either

Trustees or representatives of the Vakampatti Catholic Christians and suit is also not filed for the welfare of the Catholic Christians. The Church in

question was consecrated by the Arch Bishop of Trichy Diocese in the year 1902. The properties of the Church and its management were taken

over several years by the great grandfather of 1st defendant. After his lifetime, his son Savarimuthu took charge of the same and after him, his son,

who is the father of 1st defendant, viz., Maria Santhanam was the Manager of the Church. As the father of 1st defendant is minor, the grandfather

of 2nd plaintiff A.Savarimuthu took the consent of Maria Santhanam''s mother and looked after the accounts of the Church till Maria Santhanam

became major. After attaining majority ,the said Maria Santhanam performed his duties. Thereafter, due to ill-health, he permitted 2nd plaintiff''s

grandfather Savarimuthu to collect money from the public for festivals and thereafter, his son, the 1st plaintiff was permitted to be a Secretary from

the year 1954 onwards. After Maria Santhanam, 1st defendant is performing the management of the Church as Manager. Though he was ready

and willing to collect funds from the public for performing the festival all these years, as requested by the plaintiffs, they were permitted to collect

funds from the public under his subordination and after the festivals were over, the said Secretaries will hand over accounts in the presence of

Church Manager and public.

(e) It is the further case of defendants that 1st plaintiff has given exaggerated figures and increased the prices of the materials. The Vakampatti

Catholic Christians public strongly objected this and opined that 1st plaintiff is not fit to be a Secretary. 1st defendant and his family members only

continued as hereditary managers of the Vakampatti Church and its properties. There was no committee as alleged by plaintiffs. From the inception

of Church, the management and maintenance of the Church have been in the control of defendants 2 to 4 only. Only after getting permission from

them, every activity of the Church was done. There are no Trustees in the management of the Church management. After getting permission from

1st defendant, who is the manager of the Church, plaintiffs in the capacity as his Secretaries will collect donations for the Church. The allegation

that 1st plaintiff has spent Rs. 40,000/- is false. This defendant, in accordance with the wishes of the Catholic Christian public and with their full

consent, has handed over 3/4 sovereign gold jewels belonging to the Church, pooja vessels, Church car adorning materials, etc., to 3rd defendant.

Having evil intention to grab heavy funds, plaintiffs have filed this suit. Only defendants 2 and 3 are having legal rights to manage the Church and to

perform the festivals. Plaintiffs are not entitled to any decree from this Court.

(f) Second defendant filed a written statement stating that the suit Church at Vakampatti was constructed about 125 years ago and the Church was

consecrated as per Catholic rights and dedicated to the worship of general public. Any Church properly consecrated and dedicated to general

worship will come under ecclesiastical jurisdiction of the Bishop. The ancestors of 1st defendant were allowed to manage the affairs of the Church

by the Church authorities. The representatives of 4th defendant used to perform the religious part of festivals and also ceremonies and Holy

masses, as and when required. Neither plaintiffs nor their predecessors had any interest or right over the Church, contributions, donations and

offerings are collected from the public to celebrate the festivals. 1st defendant helped the 2nd defendant in the celebration of the festivals. There is

no trustees either elected or appointed at any time. The allegations regarding management of turn system and the transfer of Church are not true.

(g) The trial court, on the said pleadings, framed necessary issues and on the side of plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-55

were marked and on the side of defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-15 were marked and one Memo filed by Advocate

Commissioner was marked as Ex. C-1. The trial court, after analyzing entire evidence both oral and documentary, had decreed the suit as prayed

for.

(h) Against which, defendants filed A.S. No. 1174 of 1994 before this Court, wherein, among various grounds, one of the grounds was raised by

defendants in respect of applicability of Canon Law. This ground has been raised in the first appeal because plaintiffs have projected a case before

the trial court that Arch Bishop of Trichy has no right in the Church since the said Church was constructed 200 years ago by the villagers out of the

funds collected from Catholic public and as such, any transfer or alienation by 1st defendant in favour of 4th defendant is illegal. The relevant

ground so raised in the first appeal reads as follows:

The trial court has failed to note that the subject matter of the suit is purely with regard to the administration of the Church which matters are

governed under the code of Canon Law without which the Catholic Religion cannot be in existence.

(i) Since the applicability of Canon Law was raised as one of the grounds in the first appeal, elaborate arguments were made before the learned

single Judge with regard to the applicability of Canon Law to the Catholic Churches by both parties. The learned single Judge, after hearing both

sides, held that a perusal of Code of Canon Law which is having the force of law to be followed in the consecration and dedication of Churches to

the public for worship, would clearly go to show that the general public or catholic public, as in the case, cannot build a Church without the express

and written consent of the Diocesan Bishop and that a Church cannot be consecrated and dedicated to the public for worship without the consent

of such Diocesan Bishop and allowed the appeal holding that plaintiffs cannot claim exclusive right and administration over the Church. The

relevant paragraph in the judgment of Appeal Suit reads as follows:

Can. 1214 in Chapter I relating to Churches in the Code of Canon Law would disclose that the term ""Church"" means a sacred building

intended for divine worship, to which the faithful have right of access for the exercise, especially the public exercise, of divine worship. Can.1215

of the above said chapter would disclose that no Church is to be built without the express and written consent of the diocesan Bishop, and that the

diocesan Bishop is not to give his consent until he has consulted the council of Priests and the rectors of neighbouring Churches and then decides

that the new Church can serve the good of souls and that the necessary means will be available to build the Church and to provide for divine

worship. Can.1217 would disclose that as soon as possible after completion of the building the new Church is to be dedicated or at least blessed,

following the laws of the sacred liturgy and that the Churches, especially cathedrals and Parish Churches, are to be dedicated by a solemn rite.

Can.1219 would disclose that all acts of divine worship may be carried out in a Church which has been lawfully dedicated or blessed, without

prejudice to parochial rights. Can.1221 would disclose that entry to a Church at the hours of scared functions is to be open and free of charge.

Can.1222 would disclose that if a Church cannot in any way be used for divine worship and there is no possibility of being restored, the diocesan

Bishop may allow it to be used for secular but no unbecoming purpose. A perusal of the above said Canon Law, in the Code of Canon Law which

is having the force of law to be followed in the consecration and dedication of Churches to the public for worship, would clearly go to show that

the general public or catholic public as in this case, cannot build a Church without the express and written consent of the diocesan Bishop and that

a Church cannot be consecrated and dedicated to the public for worship without the consent of such diocesan Bishop. If that is so, the suit Church

should also have been constructed 200 years ago with the express and written consent of the diocesan Bishop and should have been consecrated

and dedicated to the public for worship as enshrined in the Code of Canon Law. In view of the above said position of Canon Law, the plaintiffs

cannot claim exclusive right and administration over the suit Church.

(j) By coming to the said conclusion and by relying upon with other aspects of evidence, the learned single Judge has held that 1st defendant and

his ancestors alone were working as Managers for carrying out the administration of the suit Church after its consecration and dedication to the

public for worship and dismissed the suit. Being dissatisfied, plaintiffs filed L.P.A. No. 80 of 1998, wherein a copy of order of Bishop of

Trichirappalli (with English version) was marked as Ex. B-16 and respondents 5 to 9 herein were impleaded. The Division Bench, after elaborately

dealing with the applicability of Canon Law, confirmed the judgment delivered by the learned single Judge, holding that the documents filed by

defendants, particularly Ex. B-16, would show that the Church was consecrated by the Arch Bishop of Trichy Diocese on 04.03.1902 and that

the Parish Priest signed the declaration and as such, it is a consecrated Church. The relevant paragraphs in the judgment of Division Bench are as

follows:

The appellants filed C.M.P. No. 1434 of 2003 to receive the document, namely, copy of the order of the Bishop of Trichy showing that the

Church was consecrated in the year 1902 itself. There are no serious objections to receive document, and by taking the document on file, no new

point is sought to be introduced, but, on the other hand, the document is taken on file in proof of an already existing fact. The petition in C.M.P.

No. 1434 of 2003 is ordered and the document is marked as Ex. B-16 on the defendants"" side. The additional document filed by the defendants in

this appeal, Ex. B-16 also shows that the Church was consecrated by the Arch Bishop of Trichy Diocese on 04.03.1902 and the Parish Priest

signed the declaration and as such, it is a consecrated Church.

We have already noted that in so far as ecclesiastical jurisdiction or religious functions and ceremonies to be performed in the Church in question

are concerned, there is no dispute that they are looked after by the Parish Priest who is under the control and supervision of the Arch Bishop of

Trichy Diocese. The first plaintiff in his evidence as P.W. 1 admitted that in so far as ecclesiastical jurisdiction of the Church is concerned, it is

vested with the defendants 2 and 3, and in view of his own categorical admission the plaintiffs have no right to have a declaration regarding the

ecclesiastical or religious functions of the Church.

As far as secular administration of the Church is concerned, it is necessary to notice the relevant provisions of the Canon Law. Can.1214 defines

the term, ""Church"" to mean a sacreo balding intended for divine worship, to which the faithful have right of access for the exercise, especially the

public exercise, of divine worship, Can.1215 provides that no Church is to be built without the express and written consent of the diocesan Bishop

and before granting the permission, the diocesan Bishop is required to consult the council of priests and the rectors of neighbouring Churches and

then, he is to decide that the new Church can serve the good of souls and that necessary means will be available to build the Church and to provide

for divine worship. Can.1217 provides that as soon as possible after completion of the building the new Church is to be dedicated or at least

blessed following the laws of the sacred liturgy and Churches, especially cathedrals and parish Churches are to be dedicated by a solemn site.

Can.1218 provides that each Church is to have its own title and once the Church has been dedicated this title cannot be changed. Can.1219

provides that all acts of divine worship may be carded on a Church which has been lawfully dedicated or blessed, without prejudice to parochial

rights.

(l) Aggrieved over the same, plaintiffs filed a SLP in S.L.P.(Civil) No. 9764 of 2003 and the Hon''ble Apex Court has disposed the matter with the

following observation:

Learned Senior Counsel appearing for the Petitioners contended that many of the findings of fact given by the learned Single Judge as also by the

Letters Patent Bench are on a misreading of the evidence on record. In support of this contention, Learned Counsel refers to Exhibits A-1 to A-10

with reference to which in the impugned Judgment, it is recorded that the invitations were printed in the name of Rev.Father as found at page 31

(para 33) of the impugned Judgment which he submits, is factually incorrect, and points out from a copy of the said invitation, which is in Tamil,

that the invitations were not in the name of Rev.Father. If this be so, petitioners should approach the High Court by way of a Review Petition, if so

advised.

In view of the order passed by the Hon''ble Supreme Court, plaintiffs have filed the present revision application.

It is the submission of plaintiffs that the Church and other properties belong to Roman Catholic, Vakampatti. The same was constructed 200

years ago by Catholic public by collecting money and putting up construction in the year 1868. In the year 1902, in order to regularize the

administration and management of the Church, a Committee consisting five members were constituted; out of which, three trustees were appointed

by the public and the office of the Trusteeship had been made hereditary. Plaintiffs and defendants are the present trustees. In the year 1991-92,

1st defendant was acted as Managing Trustee. Since 1st plaintiff had spent about Rs. 40,000/- out of his own resources for construction work in

Church, he made a request to 1st defendant to reimburse the same; but he did not do so and he made an attempt to transfer the property to 4th

defendant-Arch Bishop of Trichy. Hence, the suit for declaration and injunction was filed. Though the suit was decreed in favour of plaintiffs, the

learned single Judge in the First Appeal and the Division Bench in L.P.A., without dealing with the correctness of judgment and decree passed by

the trial court, erroneously dealt with the aspect of applicability of Canon Law and had dismissed the suit, holding that the Church should have

been constructed 200 years ago with the express and written consent of the Diocesan Bishop and was consecrated and dedicated to the public for

worship as enshrined in the Code of Canon Law. Contention of plaintifs is, the applicability of Canon Law had never been a subject matter before

the trial court. But, the Appellate Courts, by traversing beyond the scope of the pleadings, had dealt with the applicability of Canon Law and

erroneously dismissed the appeal holding that plaintiffs cannot claim right over the Trust. Moreover, the findings rendered by learned single Judge

as well as by Division Bench with regard to the applicability of Canon Law is totally against the evidence available on record.

By inviting the attention of this Court to the provisions of Canon Law, Learned Counsel appearing for plaintiffs submitted that it would apply

only if there is a dedication and consecration of the Church. The dedication and consecration should be done as soon as the construction of

Church is completed. In this regard, Learned Counsel referred to Can.1208, 1214, 1215, 1217, 1219, 1220 and 1221. In the instant case, the

Church was constructed in 1867; but, immediately after construction of Church, no consecration and dedication was done. First document

available is of the year 1902 i.e.the Order of Bishop of Trichirappalli, who had erected the stations of the Cross on 9th March 1902. This

document, marked as Ex. B-16, would show that only there was a stationing of Cross and there was no dedication and consecration; but the

learned single Judge as well as Division Bench misunderstood the erection of Stations of Cross itself as dedication and consecration, had come to

the conclusion that the Church is a consecrated Church, and, as such, the Canon Law would apply.

Learned Counsel for plaintiffs further relied on Canon Law 1208, 1215 and 1217 and submitted that as per Can.1208, a document is to be

drawn up attesting that the dedication or blessing of a church or the blessing of a cemetery has been performed. Can.1215 states that no Church is

to be built without the express written consent of the diocesan Bishop. Can. 1217 says that as soon as its construction is properly completed, a

new church is to be dedicated or at least blessed as soon as possible,. But, here, no such document is available; on the other hand, evidence on

record would show that Church was built up by funds collected from Catholic public from the village. Had there been any dedication or

consecration, 4th defendant Arch Bishop would have got a record to that effect since as per Can.1208, placing a document with 4th defendant is

must; but, in the instant case, 4th defendant has not chosen to contest the suit itself. While so, the Division Bench and the learned single Judge have

committed an error as if the erection of Stations of the Cross itself would amount to dedication. Moreover, in the instant case, the evidence on

record would show that the Church was built in the year 1867; Stations of Cross erected in the year 1902; whereas Can.1217 states that

dedication should be done as soon as possible. Therefore, only if there is a record to show that dedication and consecration was done immediately

after the construction of Church in the year 1867, the Canon Law could be applied and 4th defendant can have a control over the Church

Administration. But, the Division Bench of this Court and the learned single Judge, without considering this aspect, have committed an error in

holding that the Church is a consecrated Church by misunderstanding the erection of Stations of the Cross, which was done in the year 1902 i.e.

after a long period from the year of construction of Church.

The Learned Counsel submitted that the Division Bench has committed a patent error, by relying upon Ex. B-16 and Exs.A-1 to A-10, that

dedication and consecration was completed and as such, Canon law would apply to the facts of the case and that Church was transferred to the

4th defendant and thus, dismissed the suit.

Relying on the invitations relating to car festivals, marked as Exs.A-1 to A-10, Learned Counsel for plaintiffs further submitted that if 4th

defendant had control over the Church, these invitations must contain the name of the Parish Priest, but the Church has no Parish Priest. Only on

invitation, Priest from Panchampatti Village used to come to the Church at Vakampatti and conduct the Holy Masses and the villagers used to pay

for the service of the said Parish Priest. Misunderstanding the documents Exs.A-1 to A-10, the Division Bench, in para 33 of its judgment, held

that those invitations were printed in the name of Rev.Father and the same is erroneous.

In this regard, Learned Counsel has relied upon a judgment in the case of Roman Catholic Bishop of Trichy.vs. Amirthaswami reported in 1944

MLJ 157, a similar set of facts, and in that case, an agreement was arrived at under the Bishop of Trichirappalliy and the said agreement provided

that the Bishop should depute a priest for the conduct of the daily mass and on days of obligations and for the conduct of other religious services;

the Church was constructed out of the funds provided by the Vellala Roman Catholic Community; the Bishop was having control, similar in the suit

church. But the Division Bench of this Court held that the loyal members of Vellala Roman Catholic Community were entitled to have charge of the

building for the purpose of management of the building as the management has always been in that community. It has also directed that possession

be given to the representatives of the Roman Catholics of Varaganeri and the Vellala plaintiffs were also entitled to possession of the immovable

property belonging to the Church. Thus, by relying upon the said judgment, Learned Counsel for plaintiffs submitted that in the said case, since the

Church was built by the Roman Catholic people, the administrative power was directed to be vested only with the Roman Catholic people. But, in

the instant case, the learned single Judge as well as the Division Bench, on an erroneous misinterpretation of Canon Law, have dismissed the suit.

Therefore there is an error apparent on the face of record and as such, the judgment delivered by the Division Bench has to be reviewed.

Per contra, it is the submission of defendants submitted that the scope of review is very limited and only if there is an error apparent on the face

of record, the order could be reviewed; but under the guise of arguing the review, the Learned Counsel for plaintiffs cannot re-argue the entire

case. It is further contended that this Court has already dealt with the evidence as well as the applicability of Canon Law in detail and dismissed the

suit. It is contended that before the Supreme Court, it was urged by plaintiffs that the finding rendered by the Division Bench of this Court with

regard to Exs.A-1 to A-10 is factually incorrect and since Exs.A-1 to A-10 are in Tamil, the Hon''ble Supreme Court observed in the Order that

the plaintiffs should approach the High Court by way of review petition only with regard to the finding rendered in Exs.A-1 to A-10. Therefore, the

scope of the review is very limited.

It is the further submission of defendants that Exs.A-1 to A-10 are invitations issued for festival right from the years 1963 to 1992. A perusal

of Ex. A-1 invitation would show that it contains the name of Parish Priest of Church, viz., A.L.Kulandaisamy. All other invitations would show

that after completion of Holy Masses, there would be a car festival. The Holy Masses would be conducted only by the Rev.Father, who is under

the control of 4th defendant. Further, it is incorrect to state that the documents did not refer to Rev.Father. In fact, the contents of the invitations

would show that the Church was dedicated and consecrated long back. Though the plaintiffs had claimed that they are the Trustees, no Trust Deed

was produced and actually, there is no Trust system. In fact, after the disposal of special leave petition, defendants have filed an execution petition

before the trial court and the same was allowed on 14.11.2003 and re-delivery of possession of Church was ordered and defendants have taken

possession of Church as early as in 2003 itself. Aggrieved over the order passed in execution petition, plaintiffs filed a civil revision petition in

C.R.P.(NPD) (MD) No. 66 of 2004 and the same was dismissed on 03.07.2007. Questioning the said order, plaintiffs filed SLP No.

22063/2007 and the same was also dismissed on the ground of no merit. Therefore, as on date, no cause of action survives since the matter had

reached finality and, as such, the review application is not maintainable and the question of review does not arise. In support of his submissions, the

Learned Counsel relied on the decisions reported in V.K.Balakrishnan.vs. C.Shankar ((2007) 3 MLJ 1982), J.Shanker.vs. P.Jayabal ((2007) 6

MLJ 298), Jayaraman.vs. Union of India (2002(4) CTC 663), M/s.J.P.Builders & another. vs. A.Ramadas Rao & another (2010-3-L.W.522).

this Court has considered the arguments advanced by both sides.

Before we deal with the contentious points raised by the Review Petitioners, we may briefly refer to the principles of Review. The power of a

Civil Court to review its judgment/decision is traceable in Section 114 of Code of Civil Procedure. The grounds on which review can be sought

are enumerated in Order 47, Rule 1 C.P.C. It may allow Review on three specific grounds, viz., (i) discovery of new and important matter of

evidence; (ii) mistake or error apparent on the face of the record; and (iii) for any other sufficient reason. It is well settled that review proceedings

have to be strictly confined to the ambit of Order 47 Rule 1 C.P.C.

Though the scope of review application is very limited, arguments were elaborately made by Learned Counsel on either side with regard to the

applicability of Canon law, for the purpose of completion, the following questions are framed for consideration.

(1) Whether the Division Bench of this Court has traversed beyond the scope of pleadings made in the suit?

(2) Whether there was an error apparent on the face of record by applying Canon Law ?

(3) Whether the review application is maintainable?

With regard to the first question, it is the submissions of plaintiffs that suit for declaration and injunction was filed alleging that 1st defendant has

refused to reimburse the amount spent by 1st plaintiff for renovation of Church and 1st defendant is making attempts to transfer Church property in

favour of the 4th defendant; the trial court by framing necessary issues decreed the suit; the applicability of Canon Law had not been raised before

the trial court; but the learned single Judge of this Court in the First Appeal has dealt with the applicability of Canon Law and dismissed the suit,

which was subsequently confirmed by the Division Bench. Contention of Petitioners is that the learned single Judge as well and the Division Bench

repeatedly referred to Canon Law which was not at all an issue putforth by the parties and travelled beyond the scope of pleadings.

Plaintiffs are not right in contending that the Court exceeded the pleadings in referring to Canon Law. In the plaint, there is a specific allegation

against 1st defendant as if he is making attempts to transfer Church property in favour of 4th defendant. Since there is an allegation with regard to

transfer of Church property, the first Appellate Court compelled to deal with the applicability of Canon Law, which will have a consequential effect

in transfer of property to 4th defendant. In fact, in the Memorandum of Grounds of Appeal, the applicability of Canon law was raised as one of the

grounds by defendants(ground No. 13). Defendants have elaborately argued before the First Appellate Court as well as Division Bench with

regard to the applicability of Canon Law and plaintiffs have also replied for the same without raising any objection at the relevant point of time.

Thus, we are of the opinion, there is no force in the arguments advanced by plaintiffs that First Appellate Court as well as the Division Bench

travelled beyond the scope of the pleadings.

Coming to the next question, it is the submission of plaintiffs that for the application of Canon Law, immediately after the construction of

Church, applying Canon Law (1207 and 1208) dedication and consecration ought to have been taken place; in the instant case, the Church was

constructed 200 years ago in the year 1867; but absolutely, no evidence was available to show that dedication and consecration took place; but

the Division Bench of this Court misunderstood the erection of Stations of Cross done by the Bishop in the year 1902 and came to erroneous

conclusion that the Church is a consecrated one. Further, it is the submission of plaintiffs that erection of Stations of Cross itself was done only in

the year 1902 i.e.long after the Church was constructed; whereas as per Canon Law 1217, the dedication and consecration has to be done

immediately after the construction of Church. Case of plaintiffs is that absolutely there was no consecration and dedication and that the infredients

of Canon Law 1207 and 1208 were not fulfilled. But, without properly looking into this aspect, the Division Bench erroneously held, by relying

upon Canon 1217, that Church in question is a consecrated Church and the said finding suffers from error apparent on the face of record.

We are unable to appreciate the submission made by plaintiffs for the reason that absolutely, no evidence was produced before this Court that

the Church was constructed in the year 1867. Furthermore, no document was available to show that the Hereditary Trustees were appointed by

the public 90 years back. On the other hand, Ex. B-16 would show that a Missionary Priest of the Diocese of Trichirapalli have erected the

Stations of the Cross with all the prescribed conditions and ceremonies on 9th March, 1902. The relevant portion from Ex. B-16 reads as follows:

I. Augustine Pereira, the undersigned, a missionary priest of the Diocese of Trichinopoly, by the Rescript given by his Holiness Pope Leo XIII, to

John Mary S.J., on the 9th April 1900, have erected the Stations of the Cross with all the prescribed conditions and ceremonies on the 9th March

1902 before the undersigned witnesses in the Church of St.Mary Magdalene, so that according to the intention of the aforesaid Rescript whoever

devoutly and faithfully makes the Stations of the Cross may gain all and every one of the indulgences and Privileges granted by the Holy Father.

All the contents of Ex. B-16 throws away the submission of plaintiffs that there was no connection between 4th defendant and the suit Church.

In his evidence, P.W. 1 clearly admits installation of Stations of the Cross. The relevant portion of evidence of P.W. 1 reads as follows:-

(Vernacular matter deleted)

In our considered opinion, Ex. B-16 itself would suffice to come to the conclusion that there was a consecration in the year 1902.

Contention of Petitioners is that 4th Defendant never exercised any control over Vaccampatty church and Panjampatty Parish Priest used to

come and conduct Holy Mass for which service, he was paid the amount by the people of Vaccampatty and while so, the Bench erred in

observing that Bishop had control of the church and that the said finding is an error apparent on the face of the record.

The evidence of D.W.3 would show that Church at Vakampatti i.e.suit Church, is a Sub-Station with Chappal and it comes within the main

Church at Panjampatti. Further, by a perusal of Ex. B-15 i.e.Directory of the Diocese of Trichirapalli, it is seen that Vakampatti finds place at page

No. 94. In Ex. B-15, it is stated that Panjampatti is the Parish and Vakampatti with Chapel is the Sub-Station of Panjampatti. This Directory of the

year 1980 strengthens the unassailable evidence of D.W.3 coupled with Exs.B-15 and B-16 that dedication and consecration took place long

back. Though the plaintiffs submitted that the Priest from Panjampatti used to come on the request made by the villagers at Vakampatti on

payment, absolutely there is no supporting evidence to prove the same.

By a perusal of Exs.A-1 to A-10, it is seen that there was a car festival for every year and before commencing car festival, there was a Holy

Mass, which could be done only by the Rev.Father. Further, we find from one of the invitations marked as Ex. B-1, the name of the Parish Priest,

by name, Kulandaisamy. Therefore, we do not find any error apparent on the face of record in the judgment delivered by the Division Bench of

this Court in applying the Canon Law that there was a dedication and consecration and the Church is a consecrated Church.

Contentions were advanced referring to Ex. A1 to A10 by saying that ""invitations were printed in the name of Rev. Father as found in Para 33

of the judgment"" was erroneous. Referring to the said submissions, the Hon''ble Supreme Court disposed of Special Leave to Appeal (Civil) No.

9764 o 2003 (19.5.2003) giving liberty to the Petitioners/Plaintiffs to file a Review Petition, if so advised.

In Para 33 of the judgment in L.P.A. No. 80 of 1998, the Division Bench held as follows:-

33..... The documents, namely, Exs.A1 to 10 show that the Invitations were printed in the name of Rev. Father and the first defendant was shown

only as church manager and others were shown as nattanmaidars.......

Contention of Review Petitioners is that except Ex. A1-Invitation (Celebrations on 18.7.1963), the other documents Exs.A2 to A10 do not

contain the name of Rev.Father and therefore, the finding ""when the invitations were printed in the name of Rev. Priest"" suffered from error

apparent on the face of the record. By perusal of Exs.A1 to A10, Ex. A1-invitation is printed in the name of Rev.Father ""A.M. Kuzhanthaisamy

cg.FU tf;fk;gl;o/ Exs.A2 to A10-invitations are printed in the name of K.S.M. Kanagappan, [1st Defendant] as Church Manager Name of C.S.

Robert, Nattanmai (1st Plaintiff) and name of others shown as ""kariashthargal"". Of course the observation of the Division Bench that invitations

Exs.A2 to A10 were printed in the name of Rev. Father may not be correct; but that does not amount to error apparent on the face of the record

vitiating the finding and conclusion. It is pertinent to note that apart from Ex. A1-invitation, Ex. B4-invitation was also printed in the name of Parish

Priest. By reading of Exs.A2 to A10-invitations, it is seen that celebrations are to commence after Holy Mass ""The same is reflected in Exs.A1 to

A10 as @jpt;tpa gypg{ir Koe;j gpwF@. Admittedly, the Holy Mass is to be conducted only by the Rev. Priest. Presence of parish Priest at the

time of celebration is evident from conducting of Holy Mass. Therefore, it cannot be said that the Rev.Priest. was totally out of picture insofar as

celebrations pertaining to Exs.A2 to A10-invitations.

So far as the third question is concerned, we are of the opinion that the scope of review is very limited. It is well settled principle that in the

guise of review, the matter cannot be reargued. But, in the instant case, plaintiffs, after making their submission with regard to the applicability of

Canon Law before the learned single Judge and the Division Bench, now once again re-argued the matter in entirety under the guise of review,

which is not permissible. Review could be entertained only if there is an error apparent on the face of the record. In this regard, an useful reliance

could be placed in the judgments relied on by defendants. In (2007) 6 MLJ 298 (supra), this Court has held as under:

If we consider the case on hand, in the light of the above, we can see that in this case also it is not the case of the Review Applicants that they

have discovered any new and important point which after the exercise of due diligence was not within their knowledge or could not be brought to

the notice of the Court at the time of passing of the orders in the impleading petitions. As pointed out by the Honourable Supreme Court of India,

error contemplated under Order 47 Rule 1 must be such which is apparent on the face of the record and not an error which is to be fished out and

searched. It must be an error of inadvertence.

......

In the above decision also their Lordships of the Apex Court have only held that an application for review would be maintainable not only upon

discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is

necessitated on account of some mistake or for any other sufficient reason which would include a misconception of fact or law by a Court or even

an advocate. Here, such is not the case and therefore the case on hand is clearly distinguishable.

This Court in the decision reported in V.K. Balakrishnan (Deceased) (B. Kasthuri and Others) Vs. C. Shankar and V.K. Jagadeesan, has held

as follows:

It is made clear that under the guise of review, there cannot be any re-appraisal of evidence; or appeal in disguise; that review jurisdiction can be

exercised only within the ambit of Section 114 read with Order 47 CPC; that if at all some new materials are to be introduced and such materials

should have been out of the reach of the review petitioner even after his exercise of due diligence on bringing the matter to the notice of the Court

before ever the revision petition was disposed of. But here is a case where the judgment in original suit and appellate proceedings were very much

available with the revision petitioner and it cannot be said that even after due diligence, he was out of reach of those judgments containing

observations in his favour. On merits of the case, those observations could not be taken into account in this review application.

In 2010-3-L.W.522 (supra), a Division Bench of this Court (in which one of us was a party) has held as follows:

28...... In our considered view, an error apparent on the face of the record must be such a patent error, which in one glance, can be detected

without advancing long drawn arguments on either side. Where there are two possible views regarding interpretation or application of law vis-a-vis

the particular facts of a case, taking on view, even if it is erroneous, cannot be said to be an error apparent on the face of the record. Merely

because we have taken a view in the facts and circumstances of the case and issued directions to DRT, it cannot be contended that it is an error

apparent on the face of the record.

In another judgment of this Court reported in 2002(4) CTC 663 (supra), the relevant paragraph is extracted hereunder:

The learned Government Pleader, Pondicherry, placed reliance on the decision reported Parsion Devi and Others Vs. Sumitri Devi and

Others, in support of his contention that this Review Application cannot be sustained in the light of the grounds urged as above. In that case, the

Honourable Apex Court was pleased to hold as follows:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1, CPC. In Thungabhadra

Industries Ltd., v. The Government of Andhra Pradesh, 1965 (5) SCR 174 at p.186 this Court opined:

What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial

question of law is an ""error apparent on the face of the record"". The fact that on the earlier occasion the Court held on an identical state of facts

that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the

statement was wrong, it would not follow that it was an ""error apparent on the face of the record"", for there is a distinction, which is real, though it

might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ""error

apparent"". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

.....this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of

Order 47, Rule 1 C.P.C......

The principles enunciated in the said decisions would show that the error should be apparent on the face of the record and it is not an error which

is to be fished out and searched and if an error has to be detected, then it cannot be said that error is apparent on the face of the record. In the

instant case, arguments advanced by plaintiffs before this Court is that the learned single Judge as well as Division Bench have erroneously applied

the Canon Law, which, in our view, cannot be a ground for review in the case on hand. Therefore, we are of the view that there are no merits in

the Review Application and is liable to be dismissed.

For the foregoing reasons, the Review Application is dismissed; however, there is no order as to costs.