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PETITIONER: BASELIUS MAR THOMA MATHEWS & ORS.

       Vs.

RESPONDENT: PAULOSE MAR ATHANASIUS ORS.

DATE OF JUDGMENT10/08/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N.

CITATION:  1979 AIR 1909            1980 SCR  (1) 250  1980 SCC  (1) 601

ACT:      Code of  Civil Procedure-S.  24(1) (b)-High  Court when can withdraw suits from a lower court and itself try them.

HEADNOTE:      A large  number of suits filed by a religious community in the  State were pending over the years in several courts. Considering the  prolongation and plurality of cases and the deleterious  social   consequences   resulting   from   such litigation the  High Court and the State Government selected eight of  the most  significant  suits  and  constituted  an Additional District  Court to  try them. After the court had recorded evidence  of  numerous  witnesses  and  before  the commencement of  arguments a  petition under  s. 24(1)(b) of the Code  of Civil Procedure was presented to the High Court for withdrawal  of the  suits to the file of the High Court. This was dismissed by the High Court.      On the  question whether  at this  stage and  in  these circumstances the  suits should  be called  up to  the  High Court and disposed of      Allowing the appeal, ^      HELD: Advancement of public justice will be promoted by the High  Court itself at this stage, proceeding to hear the suits. All the suits should be transferred to the High Court and,  tried   from  the  present  stage,  since  expeditious termination is  the driving  force  behind  this  order  for transfer. [243H]      What is  more important  in a  case  of  this  kind  is shortening the  longevity of these quasi-public litigations, reducing the enormous expenditure involve for both sides and entrusting the  first determination  to the  highest deck of justice in  the State. The case involves questions of public moment which are likely to spiral up to the Supreme Court on appeal.  In  this  jurisdiction,  the  approach  has  to  be pragmatic, not  theoretic, without whittling down the basics of law bearing on transfer of cases. Where a large number of people are  affected and the fate of a few hundred suits and a thousand  churches are  involved, the  elimination of some years and  duplication of hearings and full arguments at the commanding height  of the  High Court is a wise measure, alt things considered.  The social  savings of  abbreviation  of

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law’s delays re important to social justice. [253B, D, G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2222 of 1979.      Appeal by  Special Leave  from Judgment and order dated 4-7-1979 of  the Kerala  High Court  in CMP  (Transfer)  No. 5069/79.      F. S. Nariman and K. R. Nambiar for the Appellants. 251      V. M.  Tarkunde, P. P. John and N. Sudhakaran for RR 18 and 20.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-The Malankara  Sabha, on  the  Kerala Coast, is an ancient Church with a legendary past, and has a phenomenal following of a million and a half Orthodox Syrian Christians with  over a  thousand parish churches to nourish the spiritual  life of the flock. Schismatic pathology which ordinarily  afflicts   secular  institutions   struck   this ecclesiastical organisation  resulting, inter alia in bitter litigative battles  of  several  years  standing.  Some  250 suits, manifesting this litigious syndrome, are stated to be pending in the several courts of Kerala. The members of this church are  not new  to  forensic  struggles  and  have,  on earlier occasions, fought right up to the Supreme Court. The prolongation of such plurality of court cases in a community at  once  influential,  important  and  numerous,  has  many deleterious social  consequences and it was wise of the High Court and  the Government of Kerala to have thought in terms of selecting  eight of the most significant suits out of the spate of  cases and  constituting  an  ’Additional  District Court’ specially  for disposal  of these  socially sensitive cases. Thanks  to this  imaginative measure  the eight suits which were  made over  to the  specially appointed  District Judge made headway steadily forwards. An Additional District Judge, by  name, Shri  N. Vishwanath  Iyer was  first put in charge of  these suits  and he  examined several  witnesses. When he  was transferred  from Ernakulam, which is the venue of the  District Court,  another judicial  officer by  name, Shri S.  Ananthasubramanian was  posted in  his  place.  The latter kept  up  the  progress  of  the  case  and  actually finished recording  the  entire  evidence.  Hardly  had  the arguments commenced  when an  application for  transfer  was made to  the High  Court under  Section 24(1)  of the  Civil Procedure Code  praying for  making over  the suits  to some other court  for disposal.  Certain aspersions suggestive of bias were  made therein,  but the  High Court  (Mr.  Justice Bhaskaran) eventually  and rightly dismissed the petition. A petition to  appeal by special leave was filed to this court but, after  making some  submissions, counsel  withdrew that petition when  we indicated  our reaction.  Another petition had been  filed under  Section  24(1)(b)  of  the  Code  for withdrawal of the suits to the file of the High Court, which was heard  by another  Judge of  the High Court (Mr. Justice Khalid). The  learned Judge  dismissed  that  petition,  and against that order the present petition for special leave to appeal has been moved. 252      We are  deeply disturbed that an important community in the State  of Kerala should be locked in litigation for long years and  if amity  can be  restored by an early end of the crop of  cases which  drive a  wedge between sections of the same community it is ’a consummation devoutly to be wished’.

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But all  that courts  can do is to adjudicate cases with the utmost  speed   and  that   has  apparently  been  attempted successfully in  the present  instance. The  short point  is whether, at this stage and in these circumstances, the eight suits concerned  should be  called up  to the High Court and disposed of.      The learned  Judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed  by  them.  Merely  because  a  considerable section of  the  public  was  tensely  interested  in  these litigations the  court was  not prepared to withdraw them to the High  Court, nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in  its view. A massive volume of oral evidence had been recorded  by the  specially appointed  Judge and so the High Court  felt that it would be "proper for the court that recorded the  evidence to  hear the  arguments also". We are not inclined  to fault  the learned Judge in the view he has adopted. But there are many buts to any general proposition.      Shri Tarkunde  appearing for  the respondents, stressed before us,  as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division  Bench of  that court  his clients  might lose  a statutory right  of appeal and would have to depend upon the chancy jurisdiction under Article 136 of the Constitution. A single appeal,  as of  right, would  be taken  away, was his apprehension.      Shri Nariman,  appearing for  the  petitioners,  having prudently  though  belatedly  withdrawn  the  Special  Leave Petition which  made reference  to  bias,  focussed  on  the advantage both  sides would derive by an early determination of the litigation at the High Court level. He also submitted that there  was hardly  any doubt  that questions  of law of considerable public  importance were  involved and an appeal to the  Supreme Court,  as of  right, both under Article 133 and  Section   110  C.P.C.,  was  a  certainty.  He  further emphasised that Section 24(1) (b) would become a dead letter if Shri  Tarkunde’s objection  that an  automatic  right  of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted.      We agree  with the learned Judge of the High Court that some of  the grounds  put forward for withdrawl of the suits to the High 253 Court were  without merit  and were rightly rejected. But we are  not  inclined  to  exaggerate  the  importance  of  the demeanour  of   witnesses  observed   by  the  trial  judge, especially when  years have  lapsed, heaps  of evidence have been  recorded   and  judicial  memory  with  hyper  psychic sensitivity is  more in  the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity  of these  quasi-public litigations,  reducing the  enormous  expenditures  involved  for  both  sides  and entrusting  even  the  first  determination,  now  that  all evidence has  been recorded,  to the highest deck of Justice in the State.      It is  indubitable  that  after  the  decision  by  the District Court  appeals will  inevitably be  carried to  the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from the records, that the case involves questions of public  moment and are likely to spiral up to the Supreme Court on  final appeal.  In this  jurisdiction, the approach has to  be pragmatic,  not theoretic, without whittling down the basics of law bearing on transfer of cases.

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    We do  not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges  of these  or other cases, the procedural law having  vested him  with unlimited  jurisdiction and the High Court having committed these cases to his seisin. Hints of bias  are also  out of  bounds, as  we have indicated. If these suits  at this stage of early arguments which have yet to begun  effectively, are  transferred to  the High Court a spell of  few years  in the stressful life of the litigation will be  saved. Taking  copies of  a bunch of decrees by the District Court,  followed by  preliminaries  and  filing  of appeals, service  of notices  and other  ripening processes, may consume  considerable time  and money. And then the High Court  would   begin  de   novo  the  entire  arguments  and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people  are excitedly  affected by  the ultimate decision and the  fate of a few hundred suits and a thousand churches is to  be settled  by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the  commanding height  of  the  High  Court  is  a  wise measure,  all  things  considered.  The  social  savings  of abbreviation  of   laws’  delays  are  important  to  social justice.      We do  not tarry  to dilate  on the  many dimensions to this transfer  petition except  to state  that we  feel  the advancement of  public justice  will be promoted by the High Court itself at this stage, pro- 254 ceeding to  hear the  suits. We,  therefore, direct that all the suits covered by the transfer petition be transferred to the High  Court and tried from the present stage post-haste, since expeditious  termination is  the driving  force behind this order for transfer.      A last  thought before  we part  with this  case.  When sacerdotal institutions are litigious fights double disaster threatens society  because of  the souls of the votaries not only suffer  spiritual  neglect  but  are  maddened  by  the passions unleashed  by forensic  disputation. We  leave this lis with  the deep  wish that  the High  Court will give the suits high  priority in  its agenda  of postings  and finish this unhappy  chapter, if  persuasively  possible,  by  both sides burying  the hatchet,  abjuring litigative pugilistics and restoring  a modus  vivendi which  will heal old wounds, bring new  harmony and  please the Spirit of Christ. That is the highest  justice the  several lakhs  of good Christians, now locked  in long  years of  suits and  appeals, sincerely hunger for.      We allow the appeal as indicated above. P.B.R.                                       Appeal allowed. 255