K. Joshua v. His Grace Geevarughese Mr Discorus — 1984 DIGILAW 129 (KER)

JUDGMENT Sukumaran, J. 1. This is an appeal by the petitioner in I.A. No. 9705 of 1983 the plaintiff in O.S. No. 537 of 1983 of the Sub Court, Trivandrum from an order declining a temporary injunction sought for by the appellant pending the decision of the suit instituted by him. 2. The suit, as instituted originally, was essentially for a declaration that two orders passed on 27th August 1983 and 30th August 1983 by defendants 2 to 7 (2nd defendant being the Vicar, defendants 3 to 6 Assistant Vicars under the 2nd defendant and the 7th defendant being a former Assistant Vicar) are void and unenforceable, for an injunction restraining the enforcement of those orders and the refusal of the sacramental communion to him and for enabling the plaintiff to exercise his rights as a member of the Trivandrum Parish and the managing committee thereof. In view of the subsequent events including the excommunication of the plaintiff from the church, the plaint was sought to be amended by including an additional prayer that an order of excommunication passed by the 1st defendant on 29th October 1983 (Ext. A-9 and Ext. B-1) and communicated to the plaintiff on 31st October 1983 and the announcement dated 6th November 1983 made in the church and chapels (Ext. A-6) are also void. A further declaration that the "plaintiff who has received baptism of the Orthodox Syrian Church of Malankara and owes faith in the tenets of its faith as enshrined in Article 4 of the Constitution is entitled to all the privileges of the church and ministrations of the priests including sacramental communion" was also included as relief. 3. Necessary amendments were sought to be made in the application for temporary injunction. That prayer contained in I.A.No. 10673 of 1983 in O.S. No. 537 of 1983 was granted by the court below. 4. Final orders are yet to be passed in I. A.No. 10673 of 1983 seeking an amendment of the plaint. 5. Before we proceed to deal with the substantial controversy in this unfortunate litigation, it is necessary to give a background of the events leading to the present suit. We feel that the background facts have bearing and relevance to what might have otherwise appeared as a purely disciplinary action within the parish, in which this court would have been extremely reluctant and hesitant to interfere. 6. We feel that the background facts have bearing and relevance to what might have otherwise appeared as a purely disciplinary action within the parish, in which this court would have been extremely reluctant and hesitant to interfere. 6. The Malankara Orthodox Syrian Church functions under a constitution (Ext. A-1 in the original in Malayalam and Ext. B-6 English translation) adopted in the year 1934 as amended in 1967. The Trivandrum parish, which has apparently about 800 members, formerly came under the Quilon Diocese. In January, 1979 the Trivandrum Diocese was formed. The first defendant became its first Metropolitan. 7. The plaintiff has been a member of the parish from 1943 onwards. He had been elected as a member of the Managing Committee on several occasions, the last one being in the year 1977. According to him, he continues to be a member of that committee, in as much as no new committee has come into being thereafter. 8. The Trivandrum parish had taken a decision to put to profitable use the immovable property of the parish situate in the central places of the capital city of the State. The scheme bore fruits in course of time. Storeyed buildings constructed by resort to diverse financial arrangements, are now yielding substantial income. The liabilities incurred for financing the construction have all been liquidated. 9. The seeds of dissension appear to have germinated with the flow of unencumbered income. It is unnecessary for the purpose of this appeal to go into the details of the rival contentions. It is sufficient to note that according to the plaintiff and some others a fight, 'Parish versus Catholicos' commenced and continued in relation to the management of the corpus and income of new constructions. The Catholicos figures as the plaintiff in two suits O.S. Nos. 54 and 108 of 1978 where the contention centers round the entitlement of the Catholicos to appropriate for himself the income from the new constructions. It is claimed by the plaintiff that a defence committee has been set up by the parish members to protect the interest of the parishioners, who according to the plaintiff, had exclusively contributed to the construction of the income-yielding buildings. The plaintiff also would contend that the stern stand of the parishioners had infuriated the priestly class and that they, by unjust and unfair means, endeavoured to stifle the functioning of the managing committee. The plaintiff also would contend that the stern stand of the parishioners had infuriated the priestly class and that they, by unjust and unfair means, endeavoured to stifle the functioning of the managing committee. The membership of the parish assembly is governed by Article 7; only those who confess and receive Holy Qurbans at least once a year can be the members. 10. There has been allegations about the manipulation of such registers. It is alleged that such manipulation was an indirect method at stifling the attempts of the parishioners to assert their rights over the newly acquired buildings. Such attempts were sought to be checkmated by the plaintiff and others who instituted O. S. No. 224 of 1979. The suit was decreed. The Appeal A. S. No. 93 of 1981 - against the decree is pending before the Sub Court. 11. The income of the parish, according to the plaintiff and others, was not being properly spent or accounted for. This feeling resulted in another litigative exercise, O. S. No. 306 of 1981. From the order dismissing the injunction application in that suit, two civil miscellaneous appeals - C. M. As. Nos. 39 and 40 of 1981 are pending. 12. Yet another suit filed in the same year is O. S. No. 779 of 1981 seeking a relief for the conduct of a proper election. There too an interim injunction application was dismissed. C. M. A. No. 41 of 1981 against that order is pending before the same Sub Court. 13. It is not in dispute that in proceedings in the suits O. S. Nos. 54 and 108 of 1978, ultimately, this court passed an order putting the administration of the new buildings in the hands of the receivers appointed therein. For reasons which are not clear, the suits, though of the year 1978, still remain to be disposed of finally. 14. The proliferation of litigation appears to have embittered the feelings of the parties, as later events reveal. It is not desirable nor necessary to allude to the various events in detail, lest it should give an impression about the indication of views on those events, allegations and actions. Those facts, which constitute the bare facts for appreciating the controversy, have necessarily to be stated. 15. According to the plaintiff, on 26th August 1983 he was unjustly attacked at the church-gate by defendants Nos. Those facts, which constitute the bare facts for appreciating the controversy, have necessarily to be stated. 15. According to the plaintiff, on 26th August 1983 he was unjustly attacked at the church-gate by defendants Nos. 2 and 6 while returning home after his prayers. Exercising extreme self restraint, he saw to it that the incidents did not precipitate an unpalatable situation. He would, however, contend that, that was only a manifestation of a pre-conceived design on the part of the defendants to defeat himself and other parishioners who had been endeavouring to vindicate the legitimate rights of the parishioners (see paragraph 71 of the reply affidavit and Ext. A-6, dated 5th September 1983). 16. Whatever may be the allegations and counter allegations, it is clear that on 27th August 1983 a decision was taken under Ext. A-2 by the Vicar and the Assistant Vicar to exclude the plaintiff from sacramental communion. That was served on him on 30th August 1983. It discloses a decision taken against the plaintiff. Ext. A-3, dated 30th August 1983 is a ratification of the action by the Bishop, who, however, treated it "as in force till the final disposal of the matter". In that view, the plaintiff was directed to give his explanation in relation to the complaints of the Vicar and the Assistant Vicar as reflected in Ext. A-2. The reply of the plaintiff was Ext. A-5, dated 12th September 1983. It is couched in strong language and at least in certain contexts, by employing unnecessarily and avoidable caustic expressions. The basic feature of the reply appears to be his affirmation of the faith in the church, the expression of his conviction about the cause of the parishioners, and the assertion that he had not committed any act which would justify the visiting on him of the drastic consequences as were transparent from the proposals in Exts. A-2 and A-3. He vigorously questioned the competence of those who issued Exts. A-2 and A-3 to take the proposed action; and called for a rescinding of, what according to him, were unjust decisions, and he repeatedly stated therein that the action was opposed to law and without jurisdiction, that the statements therein were defamatory in character entitling him to diverse reliefs, and that the action would even amount to contempt of court. 17. 17. A formal notice by the Bishop, the 1st defendant dated 24th September 1983 called upon the plaintiff to appear before a Diocesan Council scheduled on 4th October 1983. According to the plaintiff, this was received by him only on 3rd October 1983, on the eve of the meeting. He soon sent a reply Ext. B-4 where the competence of the 1st defendant to enquire into the matter and take a decision thereon was questioned over again. This communication was received by the 1st defendant only on 6th October 1983. Even before that, the meeting on 4th October, 1983 was held. It appears to have been continued on 7th October 1983. The decision to excommunicate the plaintiff was taken at that meeting. 18. The ratification of the action taken by the Bishop and the Vicar (defendants Nos. 1 and 2) under Exts. A-2 and A-3, by the Catholicos happened to be published in the meantime in the organ of the church, 'Orthodox Herald'. (See Ext. A-7, dated 12th October 1983). 19. It was under the above auspices that the suit was instituted on 21st October 1983, then confined to the prayers in relation to a declaration of the invalid nature of Exts. A-2 and A-3 and consequential injunction against the implementation of those decisions. The application for injunction was moved only on 3rd November 1983. An interim ex parte order of injunction as prayed for was granted on that day. 20. In between the filing of the suit and the moving of the injunction, the 1st defendant had passed the order Ext. B-1 on 29th October 1983 (same as Ext. A-6) excommunicating the plaintiff from the church. That was communicated to the plaintiff on 31st October 1983. 21. Interim injunction on the unamended application had been ordered on 3rd November 1983. That was served on defendants Nos. 1 and 2, on the 7th and 8th of November, 1983. Service appears to have been completed by 21st November 1983. Counter affidavit on behalf of the 1st defendant was filed on 23rd November 1983. A detailed reply affidavit was filed on 21st December 1983. Certain documents were also filed along with the same. A petition I. A. No. 10679 of 1983 was filed by the plaintiff for alleged disobedience of the order of injunction by the 2nd defendant. Counter affidavit on behalf of the 1st defendant was filed on 23rd November 1983. A detailed reply affidavit was filed on 21st December 1983. Certain documents were also filed along with the same. A petition I. A. No. 10679 of 1983 was filed by the plaintiff for alleged disobedience of the order of injunction by the 2nd defendant. An application for amendment of the plaint and the injunction application had been moved on 21st December 1983. As noted earlier, while the application for amendment of the injunction petition stood allowed, that for the amendment of the plaint happened to be adjourned from time to time, mainly for the reason that the defendants other than defendants Nos. 1 and 2 had not filed their objections thereto. 22. There has been some developments during the further hearing of the interim applications before the court below. It is unnecessary to burden this order with the details thereof. The court below could have perhaps avoided those developments, and the allegations and counter allegations by counsel appearing in the case, at least to some extent, by declining to hear submissions regarding the case in chambers, when the court was having a regular sitting on the day. 23. Though the very maintainability of the suit was questioned, the court below repelled that contention. In so doing, it has referred to the decisions of the Supreme Court in Sinha Ramanuja v. Ranga Ramanuja AIR 1961 SC 1720 , and Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 . One of the earliest cases in the State in relation to an almost similar question - Kora Mathan Malpan v. Mar Deevannasios Metropolitan 3 TLT 1, which clearly laid down the proposition that the civil court has jurisdiction in such circumstances, was followed by that court in support of its conclusion. No convincing argument was urged before us to come to a different conclusion. The civil rights of the plaintiff, particularly in relation to his claim as a member of the parish committee, and his right to contest and continue the suits already pending now, are affected by the actions complained of in the present suit. They are clearly matters affecting the civil rights of the plaintiff for which resort to a civil court is fully justified. 24. The court below itself was not happy in the manner in which Exts. They are clearly matters affecting the civil rights of the plaintiff for which resort to a civil court is fully justified. 24. The court below itself was not happy in the manner in which Exts. A-2 and A-3 decisions had been taken and communicated. It adverted to the fact that the provisions of the Canon Law in purported exercise of which Ext. A-2 was passed by defendants Nos. 2 to 7 had not been brought to the notice of that court. The court below in particular noted that the decision to make announcements in the various churches/chapels at Palayam, Peroorkada and Nalanchira after the Kurbana. The court below observed: "So the above stated decision to communicate the same to other churches and announce the same after kurbana was not at all proper, and that in a way support the plaintiffs case that it is with the mala fide intention to defame him and to threaten the other members of the parish also the defendants passed Ext. A-2 resolution." (emphasis supplied) The court was also unhappy about the manner in which the Bishop kept in force the decision under Ext. A-2 while purporting to issue a show cause notice to the plaintiff under Ext. A-3. The Court stated: "The keeping of Ext. A-2 decision in force till the matter was properly enquired into was also, I don't think proper on the part of the 1st defendant". 25. Notwithstanding the above observations and findings, the court below dismissed the application for injunction on the following grounds: (1) On a proper interpretation of the provisions of the Constitution, the 1st defendant had the authority to pass an excommunication order. (2) In view of the corning into effect of an order of excommunication, the plaintiff could not claim any of the rights in relation to the spiritual needs which a member of the church referred to in Article 4 of the Constitution could claim. The pendency of the large number of cases also disentitles him to have a sympathetic treatment in tune with the biblical exhortations. (3) There is no basis for the complaint that the principles of natural justice have been violated in passing the order of excommunication. The plaintiff was given opportunity to explain. The pendency of the large number of cases also disentitles him to have a sympathetic treatment in tune with the biblical exhortations. (3) There is no basis for the complaint that the principles of natural justice have been violated in passing the order of excommunication. The plaintiff was given opportunity to explain. He did not participate in the meeting scheduled on 4th October 1983, but only raised the contention that the Diocesan Council had no authority to take such an action. (4) The balance of convenience is against the plaintiff in view of the excommunication already implemented; the plaintiff could not expect to get a spiritual benefit from the defendants in whom he had no faith. (5) The existence of a remedy by way of appeal from the decision of the Diocesan Council, Malankara Metropolitan had not been resorted to and this conduct disentitles the relief by way of injunction. (6) The plaintiff did not come to the courts with clean hands for the reasons (a) suppression of the fact that he had filed a petition for similar injunction in C.M.A. 39 of 1981 and (b) the order of excommunication passed on 29th October 1983 and received by the petitioner on 31st October 1983 had been suppressed when the application for injunction was moved on 3rd November 1983 against Exts. A-2 and A-3. 26. The competence of the Diocesan Council and the 1st defendant to pass the order, is therefore a pivotal question in the appeal. We shall consider the question even on the basis, of a rigorous requirement of a strong or 'good prima facie case' and adopting the strict view given in Vellakutty v. Karthiyani 1967 KLT 667 , that such a prima facie case postulates 'a thorough satisfaction'. 27. The 1st respondent has not relied on any provision of Cannon Law or other religious powers in support of Ext. A-9, Exts. B-3 and B-1 (Ext. A-9) specifically refer to Articles 115 and 116 as the source of power for passing the order. These are the articles relied on in the counter affidavit of the 1st defendant in support of the action taken under Ext. B-1 (See paragraph 9 thereof). A-9, Exts. B-3 and B-1 (Ext. A-9) specifically refer to Articles 115 and 116 as the source of power for passing the order. These are the articles relied on in the counter affidavit of the 1st defendant in support of the action taken under Ext. B-1 (See paragraph 9 thereof). The contention regarding the existence of an alternate remedy by way of appeal with reference to Article 117 also indicates that the decision has been taken only under the powers conferred by Articles 115 and 116 of the Constitution. 28. It is desirable that these Articles are referred to before the question is considered. "115. A complaint against a layman, a deacon or a priest shall be made to the Metropolitan of the Diocese to which he may belong. 116. The Metropolitan shall bring the complaint before the Diocesan Council and after giving notice to both parties and receiving their evidence and hearing arguments shall decide in consultation with the members of the Diocesan Council. Until such a decision is taken the Diocesan Metropolitan may take such actions by himself as he deems necessary." 29. At first blush, it may appear that when there was a complaint against the plaintiff by the Vicar and Assistant Vicars, that complaint could be taken cognizance of by the 1st defendant under Article 115 and dealt with under the procedure laid down under Article 116, and that a decision could be taken thereon after hearing the parties and considering the evidence adduced. It may also appear that the decision so rendered can be subjected to an appeal under Article 117. However, this approach would be totally ignoring the existence of other important and relevant provisions such as Articles 65, 107 and 128 of the Constitution. It is desirable that those provisions are also read in this context: "65. Matters concerning faith, order and discipline shall, subject to the decisions of the Malankara Episcopal Synod, be under the Control of the Diocesan Metropolitan. 107. The Episcopal Synod, shall have the authority to decide matters concerning faith, order and discipline. When the Synod shall meet for this purpose, the Synod may select such persons as the Synod may deem needed for consultation. 128. 107. The Episcopal Synod, shall have the authority to decide matters concerning faith, order and discipline. When the Synod shall meet for this purpose, the Synod may select such persons as the Synod may deem needed for consultation. 128. The Parish Assembly, the Parish Managing Committee, the Diocesan Assembly, the Diocesan Council, the Malankara Association or the Association Managing Committee shall have no authority to pass an) resolution concerning, faith, order or discipline." (emphasis supplied) In a sense, Article 118 also is relevant in that context. That reads: "118. Complaint against prelates shall be made to the President of the Episcopal Synod and the President shall bring it before the Synod and after giving notice to both parties and receiving evidence and hearing arguments the President shall pronounce the decision in accordance with the majority opinion of the Synod. If the complaint is against the Catholicos, the Patriarch, if there is a Patriarch, recognised by the Malankara Church, shall also be invited and in the event of his arriving he shall be the President of the Synod and if he docs not arrive the Synod shall pronounce the decision. While the Synod meets for these purposes such members of the Association Managing Committee as are deemed needed may be invited for consultation." (emphasis supplied) 30. A reference to the provisions would clearly establish that a differential treatment is accorded to matters of faith, order and discipline. Going by the scheme of the constitution they are of a fundamental and far reaching importance. It is understandably so. Article 65 occurs in Chapter III Heading 'C' which delineates the powers of the Diocesan Metropolitan. Under Article 65, the decision in respect of faith, order and discipline has to be taken by the Synod. The control of the metropolitan is to be in accordance with the decisions of the Synod. In other words, the sole decision making authority in relation to faith, order and discipline is the Synod. Chap.4 deals with the Malankara Arch-Diocese. The powers of the Episcorpal Synod are dealt with under sub-heading 7 thereof. Article 107 occurring therein deals with the powers of the Episcorpal Synod in matters touching faith, order and discipline. A disciplinary action which impinges upon any matters concerning faith, order and discipline would prima facie be a matter relating to faith, order and discipline as contemplated therein. Sub-heading 18 deals with miscellaneous matters. Article 107 occurring therein deals with the powers of the Episcorpal Synod in matters touching faith, order and discipline. A disciplinary action which impinges upon any matters concerning faith, order and discipline would prima facie be a matter relating to faith, order and discipline as contemplated therein. Sub-heading 18 deals with miscellaneous matters. It contains the same idea expressed in Articles 65 and 107, but in a negative language. That Article clearly states that the Parish Managing Committee, the Diocesan Assembly or the Diocesan Council, the Malankara Association or the Association Managing Committee will not have the power to pass any decision affecting faith, order and discipline. A conjoint effect of these provisions, would establish that the authority to make decision on matters relating to faith, order and discipline is within the exclusive domain of the Synod. They are matters in respect of which the Diocesan Council and the metropolitan are out of bounds. 31. In the present case, the action taken against the plaintiff is for alleged acts, misconduct in matters relating to faith, order or discipline. In paragraph 20 of the counter affidavit of the 1st defendant, it is claimed that the evidence before the Diocesan Council "showed that the plaintiff has scant respect for several persons of the religious orders, including the head of the church and that evidence also showed that he is not really a believer. ....." and that "hence the action had to be taken". When the action is thus entirely related to matters of faith, order or discipline, the Synod and the Synod only could have Jurisdiction to take a decision. We are clearly of the view that a strong or good prima facie case has been made out by the plaintiff and that there is considerable force in the plaintiff's contention a contention which he has been vigorously pursuing from the very beginning of the controversy. Neither the 1st defendant metropolitan nor defendants 2 to 7 the Vicars and Assistant Vicars would be competent to deal with a matter like excommunication, in such circumstances. 32. The court below appears to have taken the view that though Article 128 enumerates the authorities which are interdicted from taking a decision on matters relating to faith, order and discipline, the metropolitan is not one of those authorities so named therein. 32. The court below appears to have taken the view that though Article 128 enumerates the authorities which are interdicted from taking a decision on matters relating to faith, order and discipline, the metropolitan is not one of those authorities so named therein. The court below came to the conclusion that the metropolitan could therefore take a decision on matters relating to faith, order and discipline. We are clearly of the view that this conclusion is one which would render negatory the provisions of Art.65 and 197 which expressly confer the decision making authority in relation to such matters exclusively in the Synod and thereby necessarily implying that the metropolitan does not have the authority to deal with such matters. 33. A reference to Art.116 will also make the point very clear. Under that Article, the metropolitan has to take a decision in relation to a complaint referred to therein after the Diocesan Council had considered the evidence and after due consideration by the Council of that evidence and the arguments advanced before them. The metropolitan has to take a decision in consultation with the matters of the Diocesan Council. If Art.128, in clear language positively prohibits the Diocesan Council from passing any resolution concerning faith, order and discipline, it is difficult to conceive of such a council taking evidence, hearing arguments and deliberating over those matters, so that the metropolitan should in consultation with such Diocesan Council take a decision thereon. The clear indication according to us, is that a complaint referred to in Art.115 is one which does not touch upon faith, order and discipline. In respect of those three matters, the Synod is to exercise the original jurisdiction. 34. A similar exercise of original jurisdiction by the Synod is contemplated under Art.118. As noted earlier, that relates to complaint against prelates. The complaint has to be channelised through the President of the Synod and the Synod has to deliberate over it after giving parties opportunity to put forward their contentions, adduce their evidence and advance their arguments. 35. The scheme of constitution, according to us, is to entrust the Synod with original jurisdiction in dealing with important matters like faith, order and discipline and important personalities like the prelates. 35. The scheme of constitution, according to us, is to entrust the Synod with original jurisdiction in dealing with important matters like faith, order and discipline and important personalities like the prelates. In respect of such matters and such persons, the Diocesan Council and the metropolitan would not have any competence to pass orders, as such orders are of very grave and drastic consequences. 36. We are clearly of the view that a strong prima facie case has been made out by the appellant plaintiff in the case. The findings on this cardinal aspect, will have its impact and influence on other matters too. 37. If the decision under Ext. B-1 is totally without authority, the plaintiff would be entitled to the enjoyment of his fight as a member of the church, unless there exists other strong and compelling reasons for denying the same, If the authorities which have acted in the matter of ex-communication order are denuded of the jurisdiction or power to pass such orders, the omission of the plaintiff to file an appeal from such a decision would not be a factor which would disentitle him to relief from the court. It isnot as though after having sat on the fence, the plaintiff I had, after an adverse decision, questioned the competence of the authority which thus took the decision. The plaintiff has been repeatedly pointing out in his representations about the lack of authority of the Diocesan Council and of the defendants in passing the orders in question. He was justified in such circumstances in not pursuing a remedy by way of appeal. In a sense, an appeal under Article 117 would imply that he accepts the competence of the Diocesan Council or of the metropolitan to pass the order. As already noted above, his conduct in filing an appeal after an adverse order may be viewed in a disadvantageous light, if he had not raised the question of competence before the authority which proposed to take action in purported exercise of the power under Articles 115 and 116. The adverse comments made by the court below against the plaintiff for questioning the jurisdiction in the replies submitted to the show cause notice, and in not filing the appeal would therefore be patently unjust. 38. The adverse comments made by the court below against the plaintiff for questioning the jurisdiction in the replies submitted to the show cause notice, and in not filing the appeal would therefore be patently unjust. 38. The finding that there was no merit in the complaint regarding the violation of the principles of natural justice would also be insignificant in that context. This question need not be considered at length,, if the authority which passed the order did not have any jurisdiction at all to pass the same. We must, however, point out that there is some basis for his complaint about the violation of the principles of natural justice. In respect of such an important matter, the plaintiff was given effectively only about 24 hours notice for being present before the Diocesan Council. In a matter of such great momentum and of such grave consequence, a mere lip service to the principles of natural justice would be grossly inadequate to satisfy the requirement of that laudable principle. It must also be remembered that on the 4th October 1983 when the Diocesan Council debated the issue, it had no certainty that the notice dated 24th September 1983 had been even served on the plaintiff. The 1st defendant received the reply dated 3rd October 1983 from the plaintiff only on 5th October 1983. 39. There is also substance in the contention of the plaintiff that the allegations made against him are vague. In Ext. A-5, the plaintiff forcefully put forth his stand. "I have not resorted to any activities against the church or against its religious superiors as alleged by the vicar"; and complained: "what such acts....... . are, are not mentioned in his letter or yours." We must point out that even after the three-day long arguments, no specific or pointed material was brought to our notice as the basis of the allegations contained in Ext. B-3 or those enumerated in Ext. B-1. 40. In Ext. B-1, reference is made to offending publications in 'Orthodix Voice' starting from 1980. It is difficult to understand how the Vicars timed the action in 1983, without there being anything on record to show that they attempted to correct the plaintiff in relation to such publications of 1980. B-3 or those enumerated in Ext. B-1. 40. In Ext. B-1, reference is made to offending publications in 'Orthodix Voice' starting from 1980. It is difficult to understand how the Vicars timed the action in 1983, without there being anything on record to show that they attempted to correct the plaintiff in relation to such publications of 1980. The impression that there has been a vindictive attitude on the part of the defendants, in timing the notices against him, cannot be easily overcome in the above circumstances. 41. Counsel for the respondents raised question of maintainability of the appeal. According to him, in view of the amendment of the Civil Courts Act by Ordinance of 1984, the appeal should have been filed before the District court. A similar contention was repelled by a Bench of this Court in Clare v. Augustine 1984 KLT 377 . We are in agreement with the above view. It is therefore unnecessary to discuss the question at greater length. The only argument put forward as against the above view is that the above decision overlooked a distinction between preservation of the right of appeal and the preservation of the forum of appeal. While the former is preserved, according to counsel, the latter is not. The decision of the Rajasthan High Court in Firm Murlidhar v. Firm Kishorilal AIR 1959 Rajasthan 246 was relied on in that connection. That decision which has given importance to the provisions of S.17(2) of the Matsya Civil Courts Ordinance, 1948 the like of which does not exist in the present case, has no application to the facts of the case. We do not see any merit in this contention. It such a mistaken step would not be so culpable or condemnable as to disentitle him the relief by way of injunction, when other circumstances fully justify the grant of it is accordingly overruled. Even if there is any merit in such a technical contention, we would consider the question exercising our powers under S.115, C.P.C. having regard to the fact that the matter had been argued for many days before us and for considerable time before one of us (Paripoornan, J). 42. The existence of the litigations, in the above background, would not be an adverse factor as regard the plaintiff. 42. The existence of the litigations, in the above background, would not be an adverse factor as regard the plaintiff. On the other hand, those allegations would give an indication that the present action taken is an attempt in the sly to deprive the plaintiff of his position as a member of the defence committee of the Parish and as a plaintiff in O.S. Nos. 306 and 729 of 1981. It will also prima facie be indicative of much substance in the contention of the plaintiff that the action was intended to scare away other members of the Parish Committee and other parishioners, who had bona fide felt that they had certain rights over the newly constructed buildings in the Parish. 43. There is no merit in the contention that Ext. B-1 has been already implemented and therefore no injunction can be issued now. The effect of Ext. B-1 is a continuing one. It deprives him of many of the spiritual needs which he is normally entitled to have as a member of the church. Many such needs would arise in future. It will be open to the court to allow him the continued enjoyment of such spiritual rights, compared to which 'temporal pleasures are nothing' (as observed by a person -- See Unorthodox Remniscence by Sir George Turner, Page 157). The reasoning of the court below on this aspect cannot be supported on principle or precedent. 44. The omission to make a reference to the petition in C.M.A. No. 39 of 1981 in the present case, has no relevance whatever. That appeal was not concerned with an issue like the present one. Even if the plaintiff had mistakenly filed a petition therein for reliefs like injunction against implementation of the order of excommunication, such a mistaken step would not be so culpable or condemnable as to disentitle him the relief by way of injunction, when other circumstances fully justify the grant of it. 45. It is true that the order of excommunication passed on 29th October 1983 and served on the plaintiff on 31st October 1983, was not brought to the notice of the court when the plaintiff moved for the injunction against Exts. A-2 and A-3 on 3rd November 1983. It must, however, be remembered that the plaint had been instituted as early as on 21st October 1983, long before the receipt of the notice Ext. A-2 and A-3 on 3rd November 1983. It must, however, be remembered that the plaint had been instituted as early as on 21st October 1983, long before the receipt of the notice Ext. B-3 on 31st October 1983. Some explanation has been attempted by the plaintiff for this omission. He has clearly stated that he had not brought to the notice of his counsel the fact that he received Ext. B-1 on 31st October 1983. Even if the explanation offered may not appear to be fully satisfactory, we do not think that that circumstance alone would disentitle the plaintiff to a relief, when all other circumstances eminently justify the grant of interim injunction. The criticism about the delay in filing an application for amendment of the plaint and the injunction application stands on the same footing. It must be remembered that any reasonable person would require legal consultation and deep deliberation before further action against an order like Ext. B-1 is decided upon. Even to a senior counsel, the matter would present itself as one which requires deep study into the various aspects. If in such circumstances, the petitions for amendment were delayed by about less than two months, that cannot defeat his right when otherwise such rights are clearly established. It is not unusual that an amendment is allowed even after long delays - sometimes even at the appellate and second appellate stages, when justice requires the same. 46. As regards the balance of convenience, we have necessarily to bear in mind the feelings of a true Christian and of the far reaching consequences of an order of excommunication on him and his family. There are clear indications of the very grave consequences of such an order in Ext. A-6 announcement, dated 3rd November 1983 of the ex-communication. It concludes with the command to the entirety of the community of the faithful not to associate with the excommunicated person. In the objection (undated but filed on 9th January 1984) of the 2nd respondent it is stated: "By virtue of Ext, B-1 order and its promulgation by the 1st defendant Metropolitan, the 2nd defendant is forbidden to associate himself with the plaintiff.........." It is thus evident that no person can associate himself with a person who has been so ex-communicated; not even the members of his family; nor the other parishioners, nor even others belonging to the Arch-Diocese. He will become a social recluse as it were, and will be cut off from the community in which he was born and brought up. If by nature and by nurture, he is a true follower of the faith of the church (and there is absolutely nothing indicative of his questioning the same at any time or in any manner), an order of the nature of Exts. A-2 and A-3 and of Ext. A-9 would cause untold mental agony and torment to him. The social ostracism to which he is thus exposed is not easily compensatable by award of monetary compensation, after years of litigation. When the strong indication is that the order is without jurisdiction, the plaintiff is entitled to the assistance of this court, in warding off the evil consequences thereof. The balance of convenience would, in the circumstances, be to protect the rights of the plaintiff. 47. It is claimed that the Vicar or assistant vicars could not be compelled to give him religious benedictions, having regard to the strange relationship between the plaintiff on the one hand and the Vicars, Assistant Vicars and the Bishop on the other. We are not compelling any of the religious persons to give such religious benedictions to the plaintiff. We are only declaring provisionally and during the pendency of the suit his entitlement in that behalf and protecting against the invasion of such right under Exts. A-2, A-3 and A-9. There is substance in the contention of the plaintiff that he could seek such religious benedictions from priests, prelates or other religious heads in other parishes or dioceses willing to do so. He has a contention that a Vicar of the Parish, who had sympathetically understood the feelings of the plaintiff and others in the Parish, and who had worked in the Parish for 24 years, had been unjustly transferred out of the Parish. May be, such a person, or others of his mental attitude would not decline a request for religious benedictions from a person like the plaintiff. 48. This right to have spiritual services has got a link with his right to continue as a member of the Parish. The inclusion of the name in the confessional register is a condition precedent to the membership of the Parish. 48. This right to have spiritual services has got a link with his right to continue as a member of the Parish. The inclusion of the name in the confessional register is a condition precedent to the membership of the Parish. Membership of the Parish is essential to defend the suits filed by the Catholicos and to pursue the suits instituted by the Parish Committee in 1979 and 1981. It would be possible for the plaintiff to insist on the inclusion of his name in the confessional register, if despite his demand in that behalf, the priests decline to attend to his demand to confess before them. 49. We have earlier indicated about our considering the case on the basis of the rigorous standard set in Vellakutty's case 1964 KLT 667. There has been considerable judicial thought on the topic after the aforesaid decision was rendered. One of us (Paripoornan, J.) felt that the matter required serious consideration by a Bench of this court It was that feeling that led to the hearing of the appeal itself by this Bench. The question was posed by Paripoornan, J. in paragraphs 5 and 6 of the reference order, after an exhaustive survey of the decisions and incisive analysis of the 'concept of prima facie case'. We may extract those passages from the reference order:- 'But, the vexed question that calls for discussion is, what is meant by 'a prima facie case'? To what extent, the enquiry should go, at that stage, at the threshold of the litigation?" What is the degree and quantum of proof that will be required at that stage? Should the court be 'thoroughly satisfied' or 'Closely examine' the case and say that there is a prima facie case, in favour of the applicant? What are the guidelines, to be borne in mind, before entering a finding, that the plaintiff has a 'prima facie case'? Is a 'bona fide' or 'arguable' point which needs consideration or which is considered fit to go for trial, sufficient? A finding regarding the presence or absence of a 'prima facie' case is a most important, if the sole factor, in the matter of the grant or refusal of injunction. Regarding this crucial aspect, courts have expressed, the requirement in different language and the matter is not free from difficulty. In Mulla, C. P. C. Vol. 12 13th Edn. A finding regarding the presence or absence of a 'prima facie' case is a most important, if the sole factor, in the matter of the grant or refusal of injunction. Regarding this crucial aspect, courts have expressed, the requirement in different language and the matter is not free from difficulty. In Mulla, C. P. C. Vol. 12 13th Edn. at page 1512, it is stated: 'The real point, upon an application for a temporary injunction, is not how the question ought to be decided at the hearing of the case, but whether there is a substantial question to be investigated and whether matters should not be preferred in status quo until that question can be finally disposed of.' In Bishambat Nath v. Municipal Committee AIR 1926 Lahore 589 Jailal, J. held, that 'it is sufficient if the plaintiff has a case which needs consideration.' In Brajendra Nath v. 5m. Kashi AIR 1964 Pat. 177 , Das and Ray, JJ. held that it is sufficient, if the plaintiff 'can show that he has a fair question to raise' etc. This decision was cited with approval in Rameshwar v. Md. Ayyab AIR 1950 Pat. 527 (DB). In Sankara Pillai v, Inez ILR 1971 Ker. 27 at page 28 (para 4) the ingredients which the plaintiff should show are mentioned. Reference has been made to a Patna decision Mathura v. Marachoo AIR 1946 Pat. 176. [It is Brajendra v. Kashi AIR 1946 Pat. 177 referred to above]. More recently, in American Cyanamid Co. v. Ethicon Ltd. 1975 (1) All ER (HL) 504 at page 509 Lord Diplock, observed: "In those cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross examination. It is given on affidavit and has not been tested by oral cross examination. The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if on that incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate success in the action at 50 per cent or less, but permitting its exercise if the court evaluated his chances at more than 50 per cent." Again at page 510, the learned Lord observed as follows: "The use of such expressions 'a probability', 'a prima facie case' or a 'strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious: in other words, that there, is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial". I find that Justice Shri T. Chandrasekhar Menon has made a similar approach in the matter in an unreported judgment in C. R. P. No. 1856 of 1976, dated 26th April 1976. There His Lordship held: "It is not possible to say that the contentions raised by the petitioner in the appeal are frivolous as such. There are serious questions for consideration by the court, whether the application is one for a temporary injunction for restraining the execution proceedings or one inviting the inherent powers of the court for staying the execution in the Rent Control Proceedings. If there are serious questions to be considered in the appeal, it is only proper that the court grants an order of stay as far as the execution of the Rent Control Proceedings are concerned. Certainly if there had been no prima facie case on the point essential to entitle the petitioner for relief in the matter, that is the end of the claim of interlocutory relief. Certainly if there had been no prima facie case on the point essential to entitle the petitioner for relief in the matter, that is the end of the claim of interlocutory relief. The grant of the interlocutory relief is a remedy that is both temporary and discretionary. But the discretion should be a judicial discretion taking into account the balance of convenience and also the question whether the person claiming the relief has shown to the court that serious question has to be considered by the court in the matter. If the court is satisfied that the claim is not frivolous or vexatious or in other words that there is serious question to be considered then certainly the interlocutory prayer for injunction or stay will have to be granted. This aspect has not been fully borne in mind by the court below and that is why it is stated that the court's order in the matter is vitiated by material irregularity in the exercise of jurisdiction". It seems that the approach or the perspective, focussed in the above decision of the House of Lords and the decisions of the Lahore and Patna High Courts, and that of this Court in G. R. P. 1856 of 1976 envisage only a 'fair or arguable or debatable case' and do not insist a 'close examination of the merits of the controversy raised' or 'a thorough satisfaction' as indicated in some of the decisions, (Vellakutty"s case) 1967 KLT 667 . 50. Contentions were urged by counsel on both sides on this aspect. After considering the arguments, we are of the view that there is no justification for the over rigorous standard set in Vellakutty"s case 1967 KLT 667 supra. The observations of Lord Diplock in American Cyanamid C. v. Ethicon Ltd. 1975 (1) All ER 504, are very significant in this connection. These observations came up for further consideration about four years later in N. M. L Ltd. v. Woods 1979 (1) WLB 1294. At page 1306 Lord Diplock himself referring to American Cynamid's case 1975 (1) All ER 504 supra observed that the decision "enjoins the judge upon an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried. . . .". At page 1306 Lord Diplock himself referring to American Cynamid's case 1975 (1) All ER 504 supra observed that the decision "enjoins the judge upon an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried. . . .". The learned Law Lord observed that that decision did not suggest that "in considering whether or not to grant an interlocutory injunction the Judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply". Indeed, the approach made in the above decisions is in accord with the recent decision of the Supreme Court in United Commercial Bank v. Bank of India AIR 1981 SC 1426 . At page 1440 para 50, the court held: "No injunction could be granted under Order 39, rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried.........." (emphasis supplied) 51. Counsel for the respondents submitted that American Cynamid's case 1975 (1) All ER 504 supra is no longer good law and that the House of Lords itself has departed from its earlier stand. We are unable to agree. The observations of Lord Diplock quoted above would put the position in the proper light. 52. The difficulties which confront a court in the grant of refusal of interlocutory injunction was elaborated further by Lord Diplock in the later decision in N. M. L. Ltd. v. Woods 1979 1 WLR 1294 . The following observations are particularly relevant: "In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the Judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction had been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction had been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial, the defendants may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other. Lord Fraser of Tullybelton also referred to Lord Diplock's observation in the earlier case. After extracting the relevant passage, he observed: "In Scotland the practice is otherwise, and the court is in use to have regard to the relative strength of the case put forward in averment and argument by each party at the interlocutory stage as one of the many factors that may go to make up the balance of convenience. That is certainly in accordance with my own experience as a Lord Ordinary.........." It must, however, be noted that the statutory amendment brought about in the Employment Protection Act, 1974 by Amendment Act of 1975 which introduced S.17(2) had a significant effect in that decision. The necessity for the court to have regard to the likelihood of the defence being established was emphasised in that context. We may usefully refer to the academic discussion on this matter as reflected in (1975) 38 Modern Law Review 472, (1975) 91 Law Quarterly Review 168, 1976 Cambridge Law Journal 82 and 1981 Cambridge L.J. 307. On the facts of the case, it was clear that on the basis of the width of the language of S.17(2) which gave extensive protections to Trade Unions, there was virtually a certainty in the defence being established. 53. On the facts of the case, it was clear that on the basis of the width of the language of S.17(2) which gave extensive protections to Trade Unions, there was virtually a certainty in the defence being established. 53. In the light of the discussions of the question we are of the view that the standard set out in Vellakutty's case 1967 KLT 667 (supra) is unduly rigid and the approach to be made has been indicated by the Supreme Court in United Commercial Bank v. Bank of India AIR 1981 SC 1426 , at p. 1440, and also by the Lahore High Court in Bishampat Nath v. Municipal Committees AIR 1926 Lahore 589 and the Patna High Court in Brajendranath v. Sm. Kashi AIR 1946 Pat 177, and by Chandrasekhara Menon, J. in C.R.P. No. 1856 of 1976. 54. In the result, we allow the appeal, set aside the order of the court below and grant an injunction in the following terms: Defendants Nos. 1 and 2, counter petitioners in I.A. No. 9705 of 1983, are hereby restrained from implementing Ext. B-1 (Ext. A-9) and Ext. A-6 against the plaintiff till the disposal of the suit; they are also restrained from preventing the plaintiff in the exercise of his rights as a member of the Trivandrum Parish and the managing committee of the St. George's Orthodox Syrian Church. There will also be an interim injunction against the implementation by defendants Nos. 2 to 7 of the decisions Exts. A-2 and A-3 as against the plaintiff. The plaintiff will be entitled to receive sacramental communal or other spiritual benedictions from such of the priests of the Malankara Orthodox Syrian Church as are willing to give the same, ignoring Exts. A-2, A-3, A-6 and A-9 (B-1), pending final disposal of the suit. 55. We make it clear that the opinion expressed herein regarding the Constitution (Ext. A-1) and other matters are only for the purpose of the interlocutory application.