Karnataka High Court
Diocese Of Chikkamagaluru vs Lancy J Narona on 26 May, 2023
Bench: H.P.Sandeshpresided Byhpsj
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MSA No. 98 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023 R
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.98 OF 2021 (RO)
BETWEEN:
DIOCESE OF CHIKKAMAGALURU
CHIKKAMAGALURU-577102
REPRESENTED BY ITS MOST REVEREND
BISHOP DR.T.ANTHONY SWAMY
...APPELLANT
(BY SRI SACHIN B S, ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH 1. LANCY J NARONA
COURT OF S/O PASCHAL NORONHA
KARNATAKA
AGED ABOUT 55 YEARS
R/AT PRABHU STREET
CHIKKAMAGALURU-577101
2. STEVEN LOBO
S/O B.P.LOBO
AGED ABOUT 63 YEARS
R/AT AVE MARIA COTTAGE
DANTARAMAKKI LAST CROSS
BEHIND AK COLONY
CHIKKAMAGALURU-577101
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3. NELSON D'SILVA
S/O LATE NICHOLAS D'SILVA
AGED ABOUT 60 YEARS
R/AT DREAM HOUSE
3RD CROSS
LAKSHMISHANAGARA
CHIKKAMAGALURU-577101
4. KIRAN ROSHAN D'SOUZA
S/O LATE ALEX D'SOUZA
AGED ABOUT 45 YEARS
R/AT UPPALLI, HIREKOLALE ROAD
INDAVARA POST
CHIKKAMAGALURU-577101
...RESPONDENTS
(BY SRI MANJUNATH PRASAD H N, ADVOCATE)
THIS MSA IS FILED UNDER ORDER 43 RUEL 1 (U) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
09.03.2020 PASSED IN RA NO.64/2019 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
CHIKKAMAGALURU AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This miscellaneous second appeal is filed under Order
43 Rule 1(u) of CPC against the order dated 09.03.2020
passed in R.A.No.64/2019 on the file of the Principal
Senior Civil Judge and CJM, Chikkamagaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that the plaintiffs are the citizens
of this country by birth and they are residing at
Chikkamagaluru town. They are Christian Catholics and
their mother tongue is Konkani. They follow the language
and traditions of Konkani speaking Catholics. It is
contended that there exists a sizeable population of
Konkani speaking people in the town of Chikkamagaluru.
The plaintiffs are offering prayers at the local church
situated at Chikkamagaluru town. The defendant is the
religious head of the Archdiocese of Chikkamagaluru.
Under the control of the defendant, all the churches in
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Chikkamagaluru and Hassan districts are functioning. The
defendant is the head of the churches, which comes under
the diocese of Chikkamagaluru and Hassan. He has been
vested with the powers in relation to all matters relating to
the administration of the churches. It is further contended
that the plaintiffs have not been allowed to offer
prayers/mass prayers in their language i.e., Konkani.
Under Indian Constitution, Konkani is a recognized
language and finds place at the 9th entry of 8th Schedule to
the Constitution of India. It is their constitutional religious
right to offer their prayers in the church in their own
language. The act of the defendant amounts to
infringement of fundamental right under Article 25(1) of
the Constitution of India. It is also their case that on
18.08.2018, the plaintiffs have addressed a letter and
requested the defendant to permit them to offer one
prayer/mass prayer on Sunday at Chikkamagaluru Church
in Konkani language. It is further contended that there is
no response to the said request. The plaintiffs are not
against offering prayers in Kannada or any other language.
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It is contended that there is no statute framed even during
British regime which had adopted the statutory or Canon
Law to the churches in India. No Law in respect of
Christian churches has been framed in India and there is
no statutory law. The defendant is also governed by the
law of the land. Hence, prayed the Court to direct the
defendant to conduct the prayers/mass prayers in Konkani
language on every Sunday by allowing one mass out of
three masses held on each Sunday at the discretion of the
defendant at the churches situated in Chikkamagaluru and
also sought the relief to direct the defendant to allow on
each Sunday one time Konkani catechism classes and at
least two masses in a week and one mass in Konkani in
every festival mass and also sought for the relief of
permanent injunction restraining the defendant from
curtailing the fundamental rights of the plaintiffs
guaranteed under Article 25(1) of the Constitution of
India.
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4. In pursuance of the suit summons, the
defendant appeared and filed the written statement and
also filed an application under Section 9 and Order I Rule
8 and also under Order VII Rule 11(a) and (d) of CPC and
prayed the Court to dismiss the suit as barred by law as
well as no cause of action and for not obtaining permission
from the Court to file representative suit in the interest of
justice. In support of the application, an affidavit is also
sworn to by the Bishop, Chikkamagaluru Diocese
contending that with respect to religious matter, the
plaintiffs have approached the Court and the same is
outside the purview of civil law and it has to be handled by
the religious authority of the Catholic church. The civil
Court has no jurisdiction to entertain the suit. It is also
contended that as per the Canon Law, the Bishop of the
Diocese is empowered to take decision with respect to the
language policy. It is contended that suit is barred under
Canon 221(1), 375(1), 391, 392, 393, 1400(2), 1401,
1419 and 1442. It is contended that the plaintiffs have no
locus standi to represent the community at large. Hence,
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the plaintiffs have filed this suit in the individual capacity,
not in the representative capacity. Hence, prayed the
Court to dismiss the suit by allowing the application.
5. The said application is contested by the
plaintiffs by filing the detailed objections contending that
while deciding the application filed under Order VII Rule
11(a) and (d) of CPC, only the plaint averments are to be
looked into and not the written statement. The Canon Law
has not been recognized by the Constitution of India. The
issue relating to Section 9 of CPC is exclusively dealt by
the Apex Court and the issue involved between the parties
is not ritual right and the plaintiffs cannot be prevented by
worshiping as their wish and also sought for permission to
make the prayer in Konkani and not causing any
obstructions to the other languages which have been used
in the church.
6. It is an undisputed fact that even though an
application is filed under Order VII Rule 11(a) and (d)
CPC, the same was not pressed. Hence, the consideration
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remains only to the application filed under Section 9 and
under Order I Rule 8 of CPC. The Trial Court having
considered the material on record framed the points for
consideration that whether the suit is barred in view of the
provisions of the Canon law and whether there is no cause
of action for the suit. Having considered the material on
record, the Trial Court answered both the points as
affirmative in coming to the conclusion that the Canon Law
is applicable and the defendant is following the same.
Accordingly, the said Law is absolutely necessary for the
church. The Trial Court also relies upon Section 6 of the
Law and having considering the same comes to the
conclusion that when there is any bar, the Code of Canon
does not apply. Canon 6 read with Section 9 of CPC is
clear that there is a bar under CPC to decide the religious
rights expect with relating to the powers of office or right
to property and thus impliedly the Cannon Law
applicability is confirmed. It is also held that the
jurisdiction of the Court depends either on the statute or
on the law. The Trial Court also comes to the conclusion
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that that the civil Courts have jurisdiction to entertain the
suits for violation of fundamental rights guaranteed under
Articles 25 and 26 of the Constitution of India. But comes
to the conclusion that judgment of the Apex Court
reported in 1995 Supp (4) SCC is not applicable to the
case on hand.
7. The Trial Court comes to the conclusion that the
plaintiffs have approached the Court seeking the relief to
direct the defendant to conduct prayers/mass prayers in
Konkani language on every Sunday by allowing one mass
out of the three masses held on each Sunday and the
same cannot be permitted. When the plaintiffs themselves
have admitted that all the churches in Chikkamagaluru
and Hassan are functioning under the control of the
defendant who is religious head of Archdiocese of
Chikkamagaluru and he has been vested with the powers.
The plaintiffs cannot seek the relief as sought in the suit
and there is no jurisdiction to entertain the same. It is
also the reason for dismissal of the suit that the plaintiffs
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have filed the suit in their individual capacity which affects
the whole community at large and not sought permission
under Order I Rule 8 of CPC. The Trial Court also made an
observation that the plaintiffs submit that they have not
filed the suit in the representative capacity and the same
is in the interest of the particular community or people
who are speaking in Konkani language and this Court has
to consider that the said suit is filed under the
representative capacity as relying upon the principles laid
down in the judgment referred in the order and only for
the four people who are speaking Konkani, they cannot
seek for the relief that the prayer has to be conducted in
Konkani. If there was large number of people who are
affected by the prayers in Kannada language, could have
represented before the concerned authority by filing a
requisition and if the suit is decreed and the defendant is
directed to conduct the prayers in Konkani, the other
people having their own different mother tongue can also
come out for a requisition for conducting the prayers in
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their own language. Hence, the very application filed
under Section 9 read with Order I Rule 8 of CPC is allowed.
8. Being aggrieved by the said order, an appeal is
filed before the First Appellate Court wherein the First
Appellate Court having considered the grounds urged in
the application as well as in the statement of objections
and also considering the grounds urged in the appeal
formulated the points that whether the plaintiffs have
established that their suit is cognizable by the civil Court
and whether the order passed by the Trial Court suffers
from any illegality or irregularity. The First Appellate Court
considering the grounds urged in the appeal, in detail
discussed and answered both the points as affirmative in
coming to the conclusion that the civil Court is having
jurisdiction to entertain the same and the very contention
of the defendant in the written statement as well as
application that the suit is barred under the provisions of
Canon Law cannot be accepted. The First Appellate Court
relied upon the judgment of the Apex Court reported in
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1995(4) SCC 286 and extracted paragraphs 42 and 43 of
the said judgment and comes to the conclusion that that
Canon Law is not applicable in India and also comes to the
conclusion that the civil Court has jurisdiction to entertain
the suits for violation of the fundamental rights
guaranteed under Articles 25 and 26 of Constitution of
India. The First Appellate Court also taken note of the fact
that the Trial Court comes to the conclusion that the suit
ought to have been filed in the representative capacity and
the very approach of the Trial Court is erroneous. The First
Appellate Court taken note of the principles laid down in
the judgment reported in AIR 1998 Alahabad (1) and
AIR 1952 SC 245 comes to the conclusion that even a
single member of the community is entitled to bring a suit
in respect of his right to offer a prayer and also comes to
the conclusion that the suit filed by the plaintiffs is
maintainable and hence, the very approach of the Trial
Court that the suit has not been filed in the representative
capacity is erroneous and hence, it requires interference of
this Court to set aside the order passed by the Trial Court
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and to remand the matter to consider in accordance with
law.
9. Being aggrieved by the order passed by the
First Appellate Court in R.A.No.64/2019, the present
miscellaneous second appeal is filed before this Court.
The main contention of the counsel for the appellant is
that the finding recorded by the First Appellate Court is
erroneous. The counsel would vehemently contend that
the prayer sought in the plaint that they may be permitted
to make the prayer in Konkani is not a civil right and it
amounts to a practice of ritual and no fundamental right is
violated. The counsel would vehemently contend that the
plaintiffs have not been prevented for worship but they are
insisting to conduct their prayer in a particular language
and the same cannot be accepted. The very prayer sought
in the plaint is against the community at large and it
affects the community at large who are making the prayer
in particular language. The counsel also vehemently
contend that the suit is not filed in the representative
capacity and the same is filed in the individual capacity
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only by four persons and the relief sought in the suit is
against the community at large and hence, the Trial Court
rightly comes to the conclusion that the civil suit is not
maintainable for the relief as sought in the plaint. The
counsel further submits that the Trial Court also taken
note that the suit is not in the representative capacity and
the same is in the individual capacity. But the First
Appellate Court committed an error in coming to the
conclusion that the Canon Law is not applicable and also
the judgment relied upon by the First Appellate Court is
not applicable to the facts of the case on hand and
erroneously comes to the conclusion that the suit is
maintainable and the matter requires to be considered and
extracted paragraphs 42 and 43 of the relied judgment will
not come to the aid of the plaintiffs.
10. The counsel also brought to notice of this Court
to paragraph 20 of the order of the First Appellate Court
wherein the Apex Court judgment discussed and held that
in the absence of Order I Rule 8 of CPC to file a
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representative suit which is mandatory, any member of
the community may successfully bring a suit to assert his
right in the community property or for protecting such
property. Such a suit need not comply with the
requirements of Order I Rule 8 of CPC. Even though
extracted the same, the First Appellate Court committed
an error and the same is not in respect of asserting the
right of the community property. Hence, it requires
interference of this Court.
11. The learned counsel appearing for the appellant
in support of his argument relied upon the judgment of the
Madras High Court dated 20.11.1992 and brought to
notice of this Court paragraphs 14, 15 and 16 wherein
discussed with regard to Section 9 of CPC and held that
first is that a suit asserting a right to an office is a suit of a
civil nature and the second is that it does not cease to be
one of the civil nature, even if the said right depends
entirely upon a decision of a question as to the religious
rites or ceremonies. There is a further implication that
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questions as to religious rites or ceremonies cannot
independently of such a right to an office from the subject
matter of a civil suit.
12. The counsel would vehemently contend that the
prayer sought in the plaint is not a civil right and same is a
matter of ritual. The counsel relying upon the said
judgment wherein the Madras High Court in paragraph 17
held that the law of land having been settled by the Apex
Court in this country, there is no doubt that the right
claimed by the appellant herein is not a civil right and he
cannot enforce it in a civil Court. The work "ritual" means
pertaining or relating to, connected with rites. The word
"rite" is a formal procedure or act in a religious or other
solemn observance. In the present action right to worship
is not the subject matter of the dispute. The counsel
relying upon this judgment vehemently contend that the
matter of ritual cannot be questioned in civil Court hence,
the very judgment is aptly applicable to the case on hand.
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13. The counsel also relied upon judgment of the
Apex Court in the case of DIOCESE OF MYSORE vs
REV.DEEPAK SARASWATHI NIRMALE reported in 1987
0 SUPREME (KAR) 57 brought to notice of this Court
paragraph 5 wherein the Apex Court discussed with regard
to the jurisdiction of the Court to comes to the conclusion
that the Court below took up the question of jurisdiction
and held ultimately that the civil Court had got the
jurisdiction and also brought to notice of this Court to
paragraph 7 wherein a discussion was made that the
parties are governed by the Canon Law in all religious
matters, is not disputed. Canon law is based on and
contains the principles and directions regulating the
religious business and management of Catholic community
religious affairs. And also brought to notice of this Court
paragraph 12 wherein discussed with regard to the
jurisdiction of the civil court is barred. The Courts shall
have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred. The counsel referring this judgment
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vehemently contend that under Canon Law, the suit is
barred.
14. The counsel also relied upon the judgment of
the Apex Court reported in 1988 0 SUPREME (SC) 55 in
the case of DISTRICT COUNCIL OF UNITED BASEL
MISSION CHURCH AND OTHERS vs SALVADOR
NICHOLAS MATHIAS AND OTHERS and brought to
notice of this Court paragraphs 11 and 12 wherein the
Apex Court discussed with regard to the dispute between
the parties is not one of the civil nature. Hence, suit was
not maintainable and an observation is made that it is
clear therefore that right to worship is a civil right,
interference with which raises a dispute of a civil nature
though as noticed earlier disputes which are in respect of
rituals or ceremonies alone cannot be adjudicated by civil
courts if they are not essentially connected with civil rights
of an individual or a sect on behalf of whom a suit is filed.
In paragraph 12 discussed that it must be made it clear
that maintainability of the suit will not permit a court to
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consider the soundness or propriety of any religious
doctrine, faith or rituals. The scope of the enquiry in such
a suit is limited to those aspects only that have direct
bearing on the question of right of worship and with a view
to considering such question the Court may examine the
doctrines, faith, rituals and practices for the purpose of
ascertaining whether the same interfere with the right of
worship of the aggrieved parties. It is further held that in
view of Section 9 of CPC an enquiry of the Court should be
confined to the disputes of a civil nature. Any dispute
which is not of a civil nature should be excluded from
consideration. The counsel relying upon this judgment
vehemently contends that when the dispute between the
parties is not a civil nature and when the Canon Law
applicable, the First Appellate Court ought not to have
entertained the appeal and set aside the order.
15. The learned counsel for the appellant relied
upon the judgment reported in 1995 SUPP (4) SCC 286
in the case of MOST REV P.M.A. METROPOLITAN AND
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OTHERS vs MORAN MATERIAL ON RECORD
MARTHOMA AND ANOTHER and brought to notice of
this Court paragraph 89 and contends that Section 9 is
very wide. However, in the absence of any ecclesiastical
Courts any religious dispute is cognizable, except in very
rare cases where the declaration sought may be what
constitutes religious rite. The counsel referring this
judgment contended that with regard to the matter of
ritual aspects cannot be adjudicated in a civil Court.
16. Per contra, the learned counsel appearing for
the respondents/plaintiffs would vehemently contend that
the very framing of point for consideration by the Trial
Court that when the application is filed under Section 9
and Order I Rule 8 of CPC is with regard to the
applicability of Canon Law and also with regard to the
cause of action. The counsel vehemently contends that
when the objection is filed, the defendant restricted his
prayer with regard to Section 9 as well as Order I Rule 8
of CPC and not pressed the application filed under Order
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VII Rule 11 (a) and (d) of CPC. When such being the
case, the Trial Court ought not to have framed the said
point for determination. The counsel vehemently contends
that the very approach of the Trial Court is erroneous and
framing of point for consideration is against the pleadings.
The counsel vehemently contends that the order was
pronounced on 9th before the Court, but the very order is
signed and also dated 10th. Though he has brought to
notice of this Court to the said aspect, not seriously argues
the same and the same is also a technicality.
17. Further, he vehemently contends that it is not a
ritual right as contended by the appellant's counsel and
prayer made before the Trial Court in a suit is very specific
that out of three masses on every Sunday sought only for
one prayer in Konkani and not made any prayer
preventing others in making the prayer. The counsel also
brought to notice of this Court to paragraph 19 of the
plaint wherein it is made it clear that suit is filed in the
individual capacity and not in the representative capacity.
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When such specific pleading is made, the Trial Court ought
not to have invoked Order I Rule 8 of CPC. The counsel
also vehemently contends that in paragraph 17 of the
plaint also categorically stated that the prayer in other
language is also recognized by the defendant in the
churches which are situated within the district of
Chikkamagaluru and also Hassan. The counsel would
vehemently contend that the Canon Law is not recognized
in the Constitution of India.
18. The counsel in support of is arguments relied
upon the judgment of the Apex Court reported in (2018)
17 SCC 734 in the case of CLARENCE PAIS vs UNION
OF INDIA AND OTHERS wherein discussed with regard
to the applicability of Canon Law and brought to notice of
this Court paragraph 4 wherein discussed with regard to
the applicability of Canon Law and the same is extracted
below:
"4. From a bare reference to the different provisions
of the Act including Preamble thereof it is apparent
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that the Divorce Act purports to amend the law
relating to divorce of persons professing the
Christian religion and to confer upon courts which
shall include District Court and the High Court
jurisdiction in matrimonial matters. In this
background, unless the Divorce Act recognises the
jurisdiction, authority or power of Ecclesiastical
Tribunal (sometimes known as Church Court) any
order or decree passed by such Ecclesiastical
Tribunal cannot be binding on the courts which have
been recognised under the provisions of the Divorce
Act to exercise power in respect of granting divorce
and adjudicating in respect of matrimonial matters.
It is well settled that when legislature enacts a law
even in respect of the personal law of a group of
persons following a particular religion, then such
statutory provisions shall prevail and override any
personal law, usage or custom prevailing before
coming into force of such Act. From the provisions
of the Divorce Act, it is clear and apparent that they
purport to prescribe not only the grounds on which
a marriage can be dissolved or declared to be
nullity, but also provided the forum which can
dissolve or declare the marriage to be nullity. As
already mentioned above, such power has been
vested either in the District Court or the High Court.
In this background, there is no scope for any other
authority including Ecclesiastical Tribunal (Church
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Court) to exercise power in connection with
matrimonial matters which are covered by the
provisions of the Divorce Act. The High Court has
rightly pointed out that even in cases where
Ecclesiastical Court purports to grant annulment or
divorce the Church authorities would still continue to
be under disability to perform or solemnise a second
marriage for any of the parties until the marriage is
dissolved or annulled in accordance with the
statutory law in force."
19. The counsel also vehemently contend that the
judgments which have been relied by the counsel for the
appellant are prior to this judgment and this judgment is
of the year 2018 and hence, the principles laid down in the
recent judgment of the Apex Court is applicable to the
facts of the case on hand. The counsel also vehemently
contend that the suit is filed for the relief of directing the
defendant to conduct prayer in Konkani language and it is
nothing but a right to worship and the same is a
fundamental right. The judgment relied upon by the
learned counsel for the appellant referring paragraph 17 of
the Madras High Court is also helpful to the respondent
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wherein the Madras High Court also discussed with regard
to that the worship is not violating any fundamental right
and the same is recognized under the Law. The counsel
also would vehemently contend that Article 25 is
applicable and if the plaintiffs are not allowed to worship in
Konkani language, it amounts to violation of fundamental
right and whether the plaintiff is entitled for the relief or
not is a mixed question of fact and law and unless the trial
is conducted, the same cannot be decided. The counsel
also would vehemently contend that when an application is
filed praying that the suit itself is not maintainable, the
Court has to see the averments made in the plaint and not
the defence. It is also a settled law that the defendant's
contentions cannot be entertained with regard to the
maintainability, if suit is barred by law and there is no
cause of action. Hence, the First Appellate Court rightly
considered the provision of Order I Rule 8 of CPC and also
comes to the conclusion that the Canon Law is not
recognized. Hence, the very appeal requires to be set
aside.
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20. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it is not in dispute that the suit is filed for the
relief of directing the defendant to allow them to make the
prayer in Konkani language. The defendants have come
up with the defence that Canon Law is applicable and the
civil Court is not having any jurisdiction to entertain the
same. Having considered the principles laid down in the
judgments referred supra and also the contentions urged
by both the parties, the Court has to look into the material
on record. On perusal of the plaint, it discloses that the
prayer is sought with regard to directing the defendant to
conduct the prayer/mass in Konkani language on every
Sunday by allowing one mass out of the three masses held
on each Sunday at the discretion of the defendant at the
churches.
21. The prayer in the plaint is only for conducting
the prayer in Konkani language on every Sunday and the
same is also at the discretion of the defendant and the
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same is nothing but for worshiping. The very contention
of the appellant's counsel that it amounts to matter of
rituals cannot be accepted. The other contention is that
the defendant is having all right to conduct the prayer and
the same is its discretion and the said contention is also
cannot be accepted. The law of land is applicable and the
statutory law has to be looked into and the same is
considered by the First Appellate Court relying upon the
judgment of Apex Court in the case of CLARENCE PAIS
referred supra and this Court also extracted the paragraph
4 of the Apex Court judgment wherein the Apex Court held
that unless the Divorce Act recognizes the jurisdiction,
authority or power of Ecclesiastical Tribunal (sometimes
known as Church Court) any order or decree passed by
such Ecclesiastical Tribunal cannot be binding on the
courts which have been recognized under the provisions of
the Divorce Act to exercise power in respect of granting
divorce and adjudicating in respect of matrimonial
matters. It is further held that it is well settled that when
legislature enacts a law even in respect of the personal law
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of a group of persons following a particular religion, then
such statutory provisions shall prevail and override any
personal law, usage or custom prevailing before coming
into force of such Act. It is further held that there is no
scope for any other authority including Ecclesiastical
Tribunal (Church Court) to exercise power in connection
with matrimonial matters which are covered by the
provisions of the Divorce Act. It is also observed that the
High Court has rightly pointed out that even in cases
where Ecclesiastical Court purports to grant annulment or
divorce the Church authorities would still continue to be
under disability to perform or solemnize a second marriage
for any of the parties until the marriage is dissolved or
annulled in accordance with the statutory law in force.
22. Having considered the principles laid down in
the judgments referred supra, it is very clear that the
Canon Law is not recognized but the Trial Court has
framed the point for consideration with regard to the
applicability of Canon Law and based on the Canon Law
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only comes to the conclusion that the suit itself is not
maintainable. Admittedly, the suit is filed for the relief of
worshiping in the church in a particular language. It is the
contention in paragraph 6 of the plaint that there are 42
Parishes of Chikkamagaluru and out of which the Parishes
of different places are also allowed to do the prayer in
different languages and the same is disputed by the
appellant herein. When such being the case, the same has
to be decided only in full fledged trial and not at the initial
stage of considering the averments made in the plaint. It
is rightly pointed out by the learned counsel for the
respondent that while entertaining the application with
regard to the maintainability is concerned, the Court has
to look into the averments of the plaint and it is also
settled law that the defence cannot be considered while
considering the averments made in the plaint with regard
to the maintainability and for rejection. No doubt, the
application is also filed along with other provisions
invoking Order VII Rule 11(a) and (d) and the same is not
pressed. But main contention is that suit in the capacity of
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individual cannot be maintained. The said aspect is also
considered by the First Appellate Court while reversing the
finding of the Trial Court. The First Appellate Court having
taken note of the principles laid down by the Apex Court,
in paragraph 20, applied the said principle and apart from
that relied upon the principles laid down in AIR 1998
ALAHABAD (1) and AIR 1952 SC 245 and comes to
the conclusion that even in the individual capacity also
prayer can be made with regard to right to offer a prayer.
The First Appellate Court taken note of the factual aspects
that the very approach made by the Trial Court in framing
the point for consideration with regard to the applicability
of Canon Law and also with regard to the cause of action.
The First Appellate Court observed that even though the
defendant already urged before the Trial Court that he will
not press question of cause of action, the Trial Court
erroneously made the approach without the pleadings
which has not been pressed into service when the
application filed by them is only with regard to Section 9
as well as Order I Rule 8 of CPC. Hence, the First
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Appellate Court rightly reversed the finding of the Trial
Court having considered the material on record and comes
to the conclusion that the very defence taken by the
appellant is not sustainable in the eye of law and the
matter requires to be considered in accordance with law.
Hence, I do not find any error committed by the First
Appellate Court in reversing the finding of the Trial Court
thus, no merit in this appeal to set aside the order of the
First Appellate Court.
23. In view of the discussions made above, I pass
the following:
ORDER
The miscellaneous second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
