21 May 1954
Supreme Court


Case number: Appeal (civil) 193 of 1952






DATE OF JUDGMENT: 21/05/1954


CITATION:  1954 AIR  526            1955 SCR  520  CITATOR INFO :  RF         1959 SC  31  (18)  D          1970 SC 540  (11)

ACT: Travancore  Code  of Civil Procedure (VIII  of  1100)s.  87- Review provisions-Similar to provisions of Order 47, rule  1 of  the Code of Civil Procedure, 1908-Court’s  misconception of  an alleged concession by advocate of a party -Remedy  in such  a  case-Error  apparent on the  face  of  the  record- Ejectment suit-Plaintiff’s duty -Travancore Regulation IV of 1099-United  State of Travancore Cochin High Court Act V  of 1125,  s.  25-Constitution of India, arts.  214,  225-Appeal filed before June, 1949, in Travancore High  Court--Disposal of-By the High Court of Part B State of Travancore-Cochin.

HEADNOTE: The provisions of the Travancore Code of Civil Procedure are similar  in terms to Order 47, rule 1, of the Code of  Civil Procedure   1908   and   an  application   for   review   is circumscribed by the definitive limits fixed by the language used therein. The  words  "any  other sufficient  reason"  mean  a  reason sufficient on grounds at least analogous to those  specified in the rule. It  is well settled that in an ejectment suit the  plaintiff must succeed on the strength of his own title and not on the weakness of the defendant’s case. It  is  an error apparent on the face of the record  if  the judgment   does  not  deal  effectively  and  determine   an important  issue in the case on which depends the  title  of the plaintiff and the maintainability of the suit. To decide against a party on matters,which do not come with- in the issues on which parties went to trial clearly amounts to an error apparent on the face of the record. Where the error complained of is that the Court assumed that a  concession had been made when in fact none had been  made or  that the Court misconceived the terms of the  concession or  the scope and extent of it or the attitude taken, up  by the  party  and has been misled by a misconception  of  such alleged  concession,  such  error  must  be  regarded  as  a sufficient  reason analogous to an error on the face of  the



record within the meaning of Order 47, rule I of the Code of Civil Procedure. Such error will not generally appear on the record and  will have  to  be  brought  before  the  Court  by  means  of  an affidavit. A  suit filed in 1938 in the Court of the District Judge  at Kottayam (Travancore) was dismissed, The plaintiff’s appeal 521 against  the decree was allowed by a Full Bench of the  High Court  of  Travancore.  A review application  filed  by  the defendants  against  the  judgment on  the  ground  that  it contained several mistakes or errors apparent on the face of the record was dismissed by the High Court.  The High  Court declined  to  grant a certificate under  article  133.   The defendants  were  granted  special leave to  appeal  by  the Supreme  Court.  Consequent upon political changes in  India culminating  in  the  adoption of the  new  Constitution  of India, there were changes in the judicial administration  in the  State of Travancore.  Up to the end of June, 1949,  the Travancore  High  Court Act (Regulation IV of 1099)  was  in force  in  the  State  of Travancore.   Section  11  of  the Regulation provided that the judgments of a Full Bench  from the  decrees of District Courts involving certain amount  or value of subject matter in suits as well as in appeals shall be  submitted to the Maharaja for confirmation by  his  Sign Manual.  Section 12 of the Regulation applied as far as  may be  the  provisions  of section 11 to  the  judgments  after review.   In May, 1949, came the Covenant of Merger  between the  rulers  of  Travancore and Cochin  which,  inter  alia, provided for a Rajpramukh.  In July, 1949, came Ordinance II of  1124 repealing Regulation IV of 1099.  Clause 25 of  the Ordinance  provided that a Full Bench shall hear and  decide the  appeals, inter alia, from the decrees of  the  District Courts  etc. involving certain amount or value  of  subject- matter.  Clause 26 related to a review of the judgment by  a Full Bench.  The provisions relating to the jurisdiction and powers  of  High Court were substantially  reproduced  in  a later  Act (V of 11 25) and were Continued by  articles  214 and 225 of the Constitution of India. The  advocate for the respondents contended in  the  Supreme Court  that the review application, in view of  the  changes referred  to above, had become infructuous and  should  have been  dismissed  in  limine,  because  even  if  the  review application  were allowed there would be no  authority  with jurisdiction  and power to pronounce an  effective  judgment after hearing the appeal.  Again, this case was not  decided by  a Full Bench under section 25 of the Act, and  therefore Do  review was maintainable under section 26.  And  even  if the appeal be considered to have been filed under section  1 1 of Regulation IV of 1099, the application for review  must be dealt with under section 12 of the Regulation and a fresh judgment  after the review would have to be submitted  under section  11  to the Maharaja for confirmation  by  his  Sign Manual;  and  the  present Maharaja of  Travancore  did  not possess  the power to consider and to confirm or reject  the same. Hold, (repelling the contention) that in view of the  change of  the laws if the appeal were revived after the  admission of review, it must be disposed of under section 25 of Act  V of 1125 and that section did not require any confirmation of the  judgment passed on the rehearing of the appeal  by  the Maharaja  or  Rajpramukh or Any other  authority.   Assuming that the appeal, if restored, 67 522



would  be governed by section 12 of Regulation IV  of  1099, even  then section 11 would have to be applied only "as  far as  may  be"  and the portion of the  section  11  requiring confirmation by the Maharaja, would be inapplicable in  view of the events that had happened. Chhajju Ram v. Neki (49 I.A. 144), Bisheshwar Pratap Sahi v. Parath Nath (61 I. A. 3 78), Hari Shankar Pal v. Anath  Nath Mitter  ([1949]  F.C.R.  36), Sha Mulchand  &  Co.  Ltd.  v. Tawahar  Mills Ltd. ([1953] S.C.R. 351)), Beg  v.  Pestan-ji Dingha  and  Another  (10  Bom.   H.C.R.  75),  Madhu  Sudan Chowdhri  v.  Musammat Chandrabati Chowdhraizi (  (1917)  21 C.W.N.  897)  ),  Bekhanti Chinna Govinda  Chettiyar  v.  S. Varadappa  Chettiyar  (A.I.R.  1940 Mad.  17),  and  Rex  v. Northumberland Compensation Appeal Tribunal, Ex-Parte Shaw ( [1952] 2 K.B. 338) ) referred to. The  facts leading up to the appeal, as summarized from  the Judgment, are as follows.  There were two rival sections  of the   Malankara  Jacobite  Syrian  Christian  community   in Malabar,  who came to be represented by the  appellants  and respondents  respectively.   Certain  disputes  had   arisen between  the  two sections ; and each claimed the  right  to possess   and  administer  the  Church  properties  to   the exclusion of the other. In 1938, a suit was filed in the District Court of  Kottayam by  the first and second respondents against the  first  and second   appellants.The  plaintiff  s  contended  that   the defendants  had  committed acts of heresy  and  became  ipso facto  alien to the Malankara Jacobite Syrian Church.   They were, therefore, "’disqualified and unfit to be the trustees of  or to hold any other position in, or enjoy  any  benefit from,  the Jacobite Syrian Church" (para 26 of the  plaint). The  District  Judge,  who  heard the  suit,  held,  by  his judgment delivered on the 18th January, 1943, amongst  other things, that the acts and conduct imputed to the  defendants did  not  amount  to  heresy  or  schism,  or  to  voluntary separation from the Church, and that in any event, according to Canon Law, there could be no ipso facto going out of  the Church  in  the absence of a decision of  an  ecclesiastical authority properly arrived at.  The conclusion arrived at by the District Judge was that the plaintiffs were not entitled to maintain the suit, which was, therefore, dismissed. Being aggrieved by the trial Court’s dismissal of the  suit, the  plaintiffs  appealed to the High Court  of  Travancore. The  appeal  was heard by a Full Bench of  the  High  Court, consisting  of  three  Judges,  one  of  whom  expressed   a dissenting view.  On the 8th of August, 1946, the High Court held,  by a majority that the defendants had repudiated  the fundamental principles and tenets of the Malankara  Jacobite Syrian  Church  and  had established a new  Church  and  had thereby voluntarily separated from, and ceased to be members of, the Malankara Jacobite Syrian Church.  The majority hold that the plaintiffs and been validly elected as trustees and as such were entitled to possession of the Church 523 properties.  The appeal *as accordingly allowed and a decree was passed for possession and other reliefs in favour of the plaintiffs. On  the 22nd August, 1946, the defendants filed  a  petition for  review of the High Court’s judgment on the ground  that it contained several mistakes or errors apparent on the face of  the record and that in any event there  were  sufficient reasons  for the rehearing of the appeal.   The  application for  review was ultimately dealt with by the High  Court  on merits on the 21st of December, 1951.  The Court hearing the review rejected all the points urged in favour of review and



dismissed  the application, holding that there was no  error apparent  on the face of the record and that there were  not sufficient reasons for the rehearing of the appeal. The  High  Court declined to grant leave to  appeal  to  the Supreme  Court  under  article  133  of  the   Constitution; whereupon the defendants applied for, and on the 14th April, 1952, obtained, special leave of the Supreme Court to prefer an appeal against the High Court’s decision.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of 1952. Appeal  by  Special Leave from the Judgment dated  the  21st -December,  1951,  of  the  High  Court  of  Judicature   of Travancore-Cochin  arising  out of the Judgment  and  Decree dated  the  18th January, -1943, of the  Court  of  District Judge, Kottayam. N. P. Engineer (P.  N. Bhagwati, M. Abraham and M.     S. K. Sastri, with him) for the appellants.    M.C.   Setalvad,  Attorney-General  for  India,   C.   K. Daphtary, Solicitor-General for India, and K. P. Abraham (T. R.  Balakrishna Aiyar and M. R. Krishna Pillai,  with  them) for respondent No. 2. 1954.  May 21.  The Judgment of the Court was delivered by DAS  J.-(After stating the circumstances which gave rise  to the  present litigation, and the facts of the case, a  brief summary  of which is given above, His Lordship proceeded  as follows). It will be convenient at this stage to discuss and deal with a preliminary point raised by the learned  Attorney--General appearing  for  the  plaintiffs respondents.   In  order  to appreciate  and  deal with the point so raised  it  will  be necessary  to take note of the changed conditions  that  bad been brought about in the 524 matter  of the judicial administration in the State  by  the recent political changes culminating in the adoption of  the new  Constitution  of India.  It will be recalled  that  the present  review  application was made on  the  22nd  August, 1946,  and  a  notice to show cause was issued  on  the  4th December,   1947.   The  preliminary  question  as  to   the maintainability of the review application was decided on the 29th  June, 1949.  During all this period Regulation  IV  of 1099 was in force in the State of Travancore.  Section 1  1, omitting  the  explanations which are not material  for  our present purpose, and section 12 of that Regulation  provided as follows: "  11.  (1) A Full Bench shall hear and decide  all  appeals from  the decrees of the District Courts in suits  in  which the  amount or value of the subject-matter is not less  than five  thousand rupees and the amount or value of the  matter in  appeal is not less than that sum.  The judgment  of  the Full  Bench  or the judgment of the majority,  if  there  be difference  of  opinion, together with the  records  of  the case,  shall be submitted to us in order that  the  judgment may be confirmed by Our Sign Manual. (2)Notwithstanding  anything in the provisions of the  Civil Procedure Code, the date of the decree shall be the date  on which  the  judgment is declared in open Court  after  being confirmed by Our Sign Manual. Explanation I..................... (a) .............................. (b) ............................... (e) ...............................



Explanation II 12.In  cases decided under section 11 of this  Regulation  a Full Bench of the High Court may admit a review of  judgment subject  to the provisions of the Code of  Civil  Procedure. If, on review, a fresh judgment be passed, the provisions of section 11 shall, as far as may be, apply." It will be seen that under section 12 if a fresh judgment be passed  then the provisions of section 11 shall, as  far  as possible, apply, that is to say, the judgment 525 shall have to be submitted to the Maharaja for  confirmation by his Sign Manual and the judgment so confirmed shall  have to be declared in open Court after such confirmation.   This was  the  position  until the end of  June,  1949.   In  the meantime on the 29th May, 1949, came the Covenant of  merger between  the  Rulers  of  Travancore  and  Cochin  with  the concurrence  and guarantee of the then  Governor-General  of India  for the formation as from the 1st July, 1949, of  the United  State  of  Travancore  and  Cochin  with  a   common Executive, Legislature and Judiciary.  Article III  provided that  as from the appointed day (i.e., 1st July,  1949)  all rights, authority and jurisdiction belonging to the Ruler of either  of the covenanting States which appertained or  were incidental to the Government of that State would vest in the United  State.  Article IV enjoined that there should  be  a Rajpramukh of the United State, the then Ruler of Travancore being  the  first Rajpramukh during his  lifetime.   Broadly speaking,  articles  VI  and XI  vested  the  executive  and legislative authority of the United State in the  Rajpramukh subject  to  the  conditions  and  for  the  period  therein specified.  Article XXI preserved the power of the Rulers to suspend,  remit or commute death sentences.  In exercise  of the  powers conferred on him by article XI of  the  Covenant the Rajpramukh on the. 1st July, 1949, promulgated Ordinance No.  I  of 1124.  Clause 3 of that  Ordinance  continued  in force  for  that portion of the territories  of  the  United State  which formerly formed the territory of the  State  of Travancore  all  existing  laws until  altered,  amended  or repealed.   Similar provision was made in clause 4  for  the continuance of Cochin laws for that part of the United State which formerly formed the State of Cochin.  On the 7th July, 1949,  however, came Ordinance No. II of 1124.  Clause 4  of this  Ordinance  repealed  the  Travancore  High  Court  Act (Regulation  IV  of 1099).  The relevant part  of  clause  8 which is important for the purpose of the present discussion was in the terms following: "8. All proceedings commenced prior to the coming into force of this Ordinance in either of the 526 High  Courts of Travancore and Cochin, hereinafter  in  this Ordinance referred to as the existing High Courts, shall  be continued  and  depend  in the High Court  as  if  they  had commenced in the High Court after such date.........." The  jurisdiction and powers of the High Court were  defined thus: "18.  Subject to the provisions of this Ordinance, the  High Court  shall  have  and exercise all  the  jurisdiction  and powers  vested  in it by this and any  other  Ordinance  and under  any law which may hereafter come into force  and  any power or jurisdiction vested in the existing High Courts  by any Act or Proclamation in force in the States of Travancore and  Cochin  immediately prior to the coming into  force  of this Ordinance. Clause  25  leaving out the two Explanations which  are  not material  for  our  present purpose and  clause  26  ran  as



follows:- "25.   A Full Bench shall hear and decide all  appeals  from the  decrees  of  the  District Courts or  the  Court  of  a Subordinate Judge or of a Single Judge of the High Court  in Suits in which the amount or value of the subject-matter  is not  less than five thousand rupees and the amount or  value of the matter in appeal is not less than that sum. Explanation I................................ Explanation 11............................... 26.  In cases decided under section 25 of this Ordinance,  a Full Bench of the High Court may admit a review of  judgment subject to the provisions of the Travancore and Cochin Codes of Civil Procedure." Clauses 18, 25 and 26 have been substantially reproduced  in sections 18(1), 25 and 26 of the United State of  Travancore and  Cochin  High Court Act 1125 (Act No. V of  1125)  which repealed,  amongst other things, Regulation IV of  1099  and Ordinance  11 of 1124.  Then came the Constitution of  India in  1950 which created a union of several States grouped  in Parts A, B and C by the First Schedule.  The United State of Travancore-Cochin became one of the Part B States. 527 Under  article  214 the High Court of the  United  State  of Travancore  and Cochin became the High Court of the  Part  B State  of  Travancore-Cochin and article 225  continued  the jurisdiction  of  and  the laws  administered  in  the  then existing High Court. The  contention of the learned Attorney-General is  that  in view  of the changes referred to above which had the  effect of  setting up a common High Court for the United  State  of Travancore  and Cochin with jurisdiction and  power  defined therein, the review application has become infructuous, for, even if it be allowed, there will be no authority which will have  jurisdiction  and  power  to  pronounce  an  effective judgment after rehearing the appeal.  It is pointed out that a  review  may be admitted under section 26  of  the  United State of Travancore and Cochin High Court Act, 1125, only in cases  decided under section 25 of the Act.  This  case  was not decided by a Full Bench under section 25 of the Act and, therefore  no  review  is  maintainable  under  section  26. Further,  if  it be held that the appeal having  been  filed under section 11 of the Travancore High Court Regulation (IV of  1099),  the application for review must  be  dealt  with under section 12 of that Regulation then, says the Attorney- General,  if after the review is admitted a  fresh  judgment has  to be passed after rehearing the appeal the  provisions of  section 11 would have to be complied with,  namely,  the fresh judgment will, under section 11, have to be  submitted to  the Maharaja to be confirmed by his Sign Manual and  the decree  will  have to be dated as of the date on  which  the judgment   will  be  declared  in  open  Court  after   such confirmation.   It  is  pointed out  that  the  Maharaja  of Travancore no longer possesses the power to consider and  to confirm  or  reject judicial decisions and it  is  submitted that  such being the position in law the review  application had become infructuous and should have been dismissed by the Full  Bench in limine.  In our opinion, this  contention  is not  well founded.  The application for review was  properly made  to the Travancore High Court and the  Travancore  High Court  had  to  decide whether to admit  or  to  reject  the application.  The judgment to be pronounced on 528 the  application  for  review did  not  require,  under  any provision  of law to which our attention has been drawn,  to be confirmed by the Maharaja or any other authority.  It was



a proceeding properly instituted and was pending on the  1st July,  1949, and consequently under section 8  of  Ordinance No. II of 1124 had to be continued in the High Court of  the United  State as if it had commenced in the said High  Court after the coming into force of the said Ordinance.  In  this case,  the application for review was rejected by  the  High Court.  If, however, the High Court had admitted the  review then  such admission would have had the effect  of  reviving the  original  appeal  which  was  properly  filed  in   the Travancore  High  Court under section 11 of  the  Travancore High  Court  Regulation  (IV  of  1099).   That  appeal,  so revived,  having  been commenced prior to  the  coming  into force of Ordinance No. II of 1124 would, under section 8  of that  Ordinance, have had to be continued in the High  Court of  the  United State as if it had commenced  in  that  High Court after such date.  The position will be the same if  on this appeal this Court now admits the review, for, upon such admission the appeal filed in the Travancore High Court will be   revived  and  then,  having  been  ’commenced  in   the Travancore High Court and continued in the High Court of the United  State by virtue of section 8 of Ordinance No. II  of 1124 the appeal so revived will, under section 8 of the  Act of  11.25, have to be continued in that High Court as if  it had commenced in that High Court after the coming into force of that Act.  In other words, the old appeal, if restored by this  Court on this appeal, will, by the combined  operation of  section 8 of Ordinance 11 of 1124 and section 8  of  the Act  of 1125, be an appeal pending in the High Court of  the United  State.  Under our present  Constitution  Travancore- Cochin  has become a Part B State and under article 214  the High  Court  of the United State  of  Travancore-Cochin  has become  the  High Court of the Part B State  of  Travancore- Cochin  and shall have the jurisdiction to exercise all  the jurisdiction  of and administer the law administered by  the High   Court  of  the  United  State,  Such   appeal   must, accordingly, be 529 disposed  of  under section 25 of the  last  mentioned  Act. That  section  does  not require  any  confirmation  of  the judgment  passed  on  the rehearing of  the  appeal  by  the Maharaja  or Rajpramukh or any other  authority.   Assuming, however,  that  the  appeal, if restored, will  have  to  be governed  by  section  12  of  the  Travancore  High   Court Regulation (IV of 1099) even then the provisions of  section 11  would have to be applied "as far as may be" and  it  may well  be  suggested  that the portion of  section  11  which requires  the  confirmation  by the Maharaja  will,  in  the events that have happened, be inapplicable.  In our opinion, therefore, the preliminary objection cannot prevail and must be rejected. Before  going into the merits of the case it is as  well  to bear  in mind the scope of the application for review  which has  given  rise to the present appeal.  It is  needless  to emphasise  that  the scope of an application for  review  is much  more  restricted than that of an  appeal.   Under  the provisions  in the Travancore Code of Civil Procedure  which is  similar in terms to Order XLVII, rule I of our  Code  of Civil  Procedure,  1908,  the Court of  review  has  only  a limited jurisdiction circumscribed by the definitive  limits fixed  by the language used therein.  It may allow a  review on three specified, grounds, namely (i) discovery of new and important  matter or evidence which, after the  exercise  of due  diligence, was not within the applicant’s knowledge  or could  not  be produced by him at the time when  the  decree was.  passed, (ii) mistake or error apparent on the face  of



the  record and (iii) for any other sufficient  reason.   It has been held by the Judicial Committee that the words  "any other  sufficient reason" must mean "a reason sufficient  on grounds, at least analogous to those specified in the rule." See Chhajju Ram v. Neki(1).  This conclusion was  reiterated by  the  Judicial  Committee in Bisheshwar  Pratap  Sahi  v. Parath Nath(2) and was adopted by our Federal Court in  Hari Shankar  Pal  v.  Anath  Nath  Mitter(3).   Learned  counsel appearing in support of this appeal recognises the aforesaid (1)  L.R. 49 I.A. 144. (2)  L.R, 61 I.A. 378. (3) (1949] F.C.R. 36 pp. 47-48, 68 530 limitations  and  submits  that his case  comes  within  the ground  of  "mistake or error apparent on the  face  of  the record"  or  some  ground  analogous  thereto.   As  already observed,  out of the 99 objections taken in the grounds  of review  to  the judgment of the majority of the  High  Court only  15 objections were urged before the High Court on  the hearing  of  the application for review.  Although  most  of those  points have been referred to by learned  counsel  for the appellants, he mainly stressed three of them before  us. We now proceed to examine these objections. The first objection relates to the validity of the  election of the first plaintiff as the Malankara Metropolitan and  as such the ex-officio trustee and the elections of  plaintiffs 2  and  3 as his co-trustees at the  Karingasserai  meeting. This  meeting  is  pleaded in paragraphs 13 and  14  of  the plaint,.  In paragraph 18 of the plaint the plaintiffs refer to the meeting said to have been held at the M. D.  Seminary in  December,  1934,  on  which  the  defendants  rely,  the plaintiffs’  contention  being  that that  meeting  was  not convened  by competent persons nor after due notice  to  all the churches according to custom.  In paragraph 20 of  their written  statement  the defendants deny the  factum  or  the validity  of  the Karingasserai meeting relied upon  by  the plaintiffs.  They contend that that meeting was not convened by  competent persons nor was invitation sent to  the  large majority  of the churches.  In paragraph 29  the  defendants repudiate  the  allegations pleaded in paragraph 18  of  the plaint and maintain that their meeting was convened properly and  upon  notice  to all the  churches  in  Malankara.   In paragraphs  16  and 18 of their replication  the  plaintiffs reiterate the allegations in the plaint.  Issue 1(b)  raises the  question  of validity of the Karingasserai  meeting  of August,  1935,  and issue 6(a) raises the  question  of  the validity  of the M. D. Seminary meeting of  December,  1934. As  the suit is for possession of the church properties  the plaintiffs, in order to succeed, must establish their  title as trustees and this they can only do by adducing sufficient evidence  to discharge the onus that is on them under  issue 1(b) irrespective 531 of whether the defendants have proved the validity of  their meeting,  for it is well established that the  plaintiff  in ejectment must succeed on the strength of his own title.  It will  be  noticed  that the  defendants’  objection  to  the Karingasserai meeting was two-fold, (i) that the meeting had not been convened by competent persons and (ii) that  notice had not been given to all the churches.  The District  Judge in paragraph 164 of the judgment held, for reasons stated by him,  that that meeting had not been convened  by  competent persons  and  in paragraph 165 he found that notice  of  the said  meeting  had not been given to all the  churches.   It



having been conceded by the plaintiffs’ advocate at the time of  the final argument before the District Judge that  there is no evidence on the plaintiffs’ side to prove that all the churches in existence prior to 1086 had been issued notices, the  position  was  taken  up  that  in  the  view  of   the plaintiffs’  party  the defendants and  their  partisans  by adopting  the new constitution Ex.  AM had become aliens  to the  Church and as such were not entitled to be  invited  to that meeting.  Their argument was that Karingasserai meeting was only a meeting of the representatives of those  churches which  stood by the Patriarch Abdulla 11 and the  succeeding Patriarchs  and  as the defendants and their  partisans  had become aliens to the Church no notice to them was necessary. This  argument  clearly  amounted to an  admission  that  no notice  was  sent to the churches on the  defendants’  side. The  District Judge having held, contrary to the  submission of the -plaintiffs, that the defendants and their  partisans had  not  gone out of the Church it followed,  according  to him,  that  they were entitled to notice and as it  was  not proved that notices were sent to them but on the contrary as it was contended that no notice was necessary to be sent  to them  the District Judge felt it to be quite clear that  the said  meeting  was not duly convened.  In this view  of  the matter, it was not necessary for the learned District  Judge to  go further into the matter and enquire  whether  notices had  been  given to churches which had not adopted  the  new constitution Ex.  AM. Coming to the judgment of the High Court it appears that the majority of the Judges dealt with the question 532 of the validity of the meeting in a superficial and  summary manner.  Nokes J. said:- "The  lower  Court  held  that  the  meeting  was  not  duly convened,  mainly  because  notice  was  not  given  to  the defendants’  party (judgment paragraphs 166,167).  The  want of notice was not disputed, but was justified in  accordance with  the Patriarchal monition (Exhibit Z). In view  of  the conclusion  stated  above,  that the  adoption  of  the  new constitution   was   clear  evidence  of   the   defendants’ repudiation of the Patriarchs’ church, and of the fact  that the adoption took place in 1934 about 8 months earlier  than the  meeting  at  Karingasserai,  the  want  of  notice  was justifiable  apart  from the monition.   The  lower  Court’s conclusion  that the meeting formed only a minority  of  the church  is  thus erroneous as is the  conclusion  (judgment, paragraphs  164, 167) that the meeting was not  convened  by competent persons." Mr. Justice Sathyanesan simply observed: "The  only defect pointed out was that no invitation of  the meeting  was given to the churches under the control of  1st defendant.  The short answer to this is that having  already become  members of a new Church, they were not  entitled  to any invitation and were rightly ignored." It  thus appears that the question as to the  competency  of the  persons  who  convened the  Karingasserai  meeting  was disposed of by Nokes J. in one single sentence at the end of the  paragraph  quoted above.  The learned  Judge  does  not appear  to  have seriously applied his mind at  all  to  the question  of  the  competency  of  the  conveners  of   that meeting.. Sathyanesan J. did Dot deal with the question  and thought, quite wrongly, that the only question raised by the defendants  was  as  to  whether notice  was  given  to  the churches under the control of the defendants.  It is pointed out  by  the learned Attorney-General that the  judgment  of Sathyanesan  J.  was only a supplementary judgment,  for  he



prefaced his judgment with the observation that he  entirely agreed  with  the findings of Nokes J. This  argument  might have had some force 533 if  Nokes  J.  had  dealt with  the  point.   The  position, therefore, is that neither of the Judges applied his mind to the  question  of  the competency of  the  persons  who  had convened  the Karingasserai meeting.  As to service  of  the notice on all churches, Nokes J. in the passage quoted above held  that  the  defendants had gone out of  the  Church  by reason  of their adoption of the new constitution  Ex.   AM. and   that   consequently  no  notice  was  due   to   them. Sathyanesan  J.  also in the passage quoted above  took  the view  that  the defendants having become members  of  a  new church the defendants were not entitled to any invitation to the  Karingasserai  meeting.   The  learned  Judges   having reversed the finding of the District Judge and held that the defendants  had gone out of the Church by adopting  the  new constitution Ex.  AM. it became incumbent on them to enquire whether all churches not on the plaintiff’s side had adopted Ex.  AM. and if not whether such of them who had not adopted Ex.  AM. had been summoned to the meeting.  It may be  noted in this context that the learned Judges of the High Court in their  judgment  seem to indicate that  the  churches  which adopted  ’Ex.   AM.  did so by participation at  the  M.  D. Seminary meeting.  Reference has been made in the  arguments to  the  various  figures set out in  the  judgment  of  the District Judge as to the number of Churches which  according to  the evidence had attended the meeting.  It is not  clear how  many out of 310 churches claimed by the  defendants  to have been completely on their side according to Ex. 272  had attended the M. D. Seminary meeting and formally adopted the new  constitution the Ex.  AM.  If adoption of the Ex.   AM. is  the test for determining whether notice ’is due or  not, then  it  becomes  important to  consider  whether  all  the churches which were not with the plaintiffs but who had  not adopted  Ex.  AM. had been served.  Apart from the  question of the service of the notice there was also the question  as to  the  competency  of the persons  who  had  convened  the Karingasserai meeting where the plaintiffs are said to  have been elected.  While Mar Geeverghese Dionysius was alive he, as President 534 of  the Malankara Association, used to convene the  meetings of the Association.  Who, after his death, was competent  to issue  notice of meeting?  There ,appear to be no  rules  on the subject.  In this situation, says the learned  Attorney- General, if all the members of the Association attended  the meeting the defect of want of proper notice does not matter. But  did all members attend, even if the  defendants’  party who  had  adopted Ex.  AM be left out ? It does  not  appear that  either  of the two majority Judges of the  High  Court adverted  to either of these aspects of the matter,  namely, service  of  notice to all churches and  competency  of  the persons  who issued the notice of the  Karingasseri  meeting and  in any case did not come to a definite finding on  that question.  The majority judgments, therefore, are  defective on  the face of them in that they did not  effectively  deal with  and determine an important issue in the case on  which depends the title of the plaintiffs and the  maintainability of  the suit.  This, in our opinion, is certainly  an  error apparent on the face of the. record. The  next point urged by learned counsel appearing  for  the appellants  is  that  the majority decision  proceeds  on  a misconception  as to a concession said to have been made  by



the  defendants’ advocate.  It will be recalled that  issues Nos.  14  and  15 quoted above raise  the  question  of  the defendants  having  gone  out  of  the  Church,  for  having committed  acts  of heresy or having  voluntarily  given  up their  allegiance to the ancient Jacobite Syrian Church  and establishing a new church and framing a constitution for the same.  Likewise, issues Nos. 19 and 20 raise the question as to  whether  the  plaintiffs  and  their  partisans   formed themselves  into  a new church and separated  from  the  old Church  by  reason of the several acts  and  claims  therein referred to Here again the suit being one in ejectment it is more  important  for the plaintiffs to establish  their  own title  by getting issues 19 and 20 decided in  their  favour than  to destroy the defendants’ title by getting issues  14 and   15  decided  against  the  defendants,  for   a   mere destruction  of  the defendants’ title, in  the  absence  of establishments of their own title 535 carries the plaintiffs nowhere.  It is to be remembered that this is a suit by the plaintiffs as the validly  constituted trustees  and  not  a suit under the  section  analogous  to section 92, Civil Procedure Code, for removal of  defendants from  trusteeship  or  for  the framing  of  a  scheme.   In Paragraph  132  of his judgment the learned  District  judge found that the acts and claims imputed to the defendants did not  amount  to heresy and did not make  the  defendants  or their  partisans  heretics or aliens to the faith  and  that such  acts  and  conduct’ mentioned in  issue  15,  even  if proved, would not amount to heresy and would not amount to a voluntary giving up of their allegiance to or secession from the  ancient  Jacobite  Church.   On  the  other  hand,   in paragraph  133 the District Judge held that  the  plaintiffs and  their  adherents by taking up the position  which  they adopted  in 1085 and which they had persistently  maintained till  then had unlawfully and unjustifiably created a  split in the Malankara Church and might in a sense be said to have pursued a course of conduct amounting to persistent  schism. He held that, nevertheless, the plaintiffs and their  parti- sans  had  not  become aliens to the Church  or  created  or formed  themselves  into a separate church as they  had  not been  found  guilty and punished with the removal  from  the Church  or  excommunication  from the  Church  by  a  proper ecclesiastical  authority.   It  will be  noticed  that  the learned  District  Judge  found the  facts  imputed  to  the defendants   not  proved  but  the  facts  imputed  to   the plaintiffs  to  have  been proved.  He  made  no  difference between acts of heresy and merely voluntary separation  from the Church but treated them on the same footing.  It will be recalled that in the interpleader suit of 1913 the  District Judge  had  held that by accepting Abdul  Messiah  as  their ecclesiastical  head or by denying the authority of  Abdulla II,  Mar Geeverghese Dionysius and his co-trustees  had  not become  aliens  to the faith.  Finally, in the  judgment  on rehearing of the appeal reported in 45 T.L.R. 116 from which passages  have  been quoted above the acts  imputed  to  the defendants  in that case which are similar to those  imputed ’to the 536 defendants  in the present case, with the exception  of  the adoption of Ex.  AM, were held not to amount to a  voluntary separation from church by the establishment of a new  church and that the Free Church case (1) had no application to  the facts  of  that  case.  Likewise, in the  present  case  the District Judge dealt with issues 15, 16, 19 and 20 together, which   covered   issues  on  30th  heresy   and   voluntary



separation.  Presumably in view of the decision of the Court of Appeal in the previous suit the learned District Judge in this  case  did  not make any distinction  between  acts  of heresy  and  voluntary separation from the Church  and  held that  there was "no case of ipso facto heresy or ipso  facto loss  of  membership  of the Church or ipso  facto  loss  of status  as Priest and prelates for  ecclesiastical  offences unless the offenders were tried and punished by a  competent authority."  Indeed,  the evidence of P.W.  17,  the  Pope’s delegate, is claimed as supporting this view.  It is in  the light  of  this  situation  that  the  question  as  to  the misconception  of  the  concession  has  to  be  considered. Sathyanesan  J. in paragraph 4 of his judgment, referred  to the  concession  said  to  have been  made  by  the  learned advocate for the defendants in the following terms:-    "...............  However  the learned advocate  for  the respondents  clarified  the situation by  very  fairly  con. ceding that plaintiffs had not left the church and that they were as good members of the original Jacobite Syrian  Church as anybody else.  Another clarification has been made by the learned  advocate  for the appellants that  the  plaintiffs, whatever  might have happened in the past, do not hold  that the   Patriarch  can  at  all  interfere  in  the   internal administration   of   the   Malankara   trust    properties. Plaintiffs  seem to have made their position clear  even  at the time of pleadings.  According to them, ’The Patriarch as the  ecclesiastical  head  of  the  Malankara  Church  could exercise   that   authority  by  awarding   such   spiritual punishment  as  he thinks fit in cases of  mismanagement  or misappropriation  of  church properties’-Vide  pleading  No. 124(1).  The concession made by the learned advocate for the (I)L.R. [1904] A.C. 515. 537 defendants   has  obviated  the  necessity  of   a   lengthy discussion  of  several matters.  So it is worth  pausing  a while and understanding the importance, and the implications of the concessions.  It tends to mean- (i)  that the Patriarch is not an alien to the Church, i.e., the Patriarch and his predecessors in question are the  true and lawful head of the original Jacobite Syrian Church, that (ii) that the plaintiffs and their partisans, holding (a)  the  Patriarch has only a spiritual supervision of  the administration of the trust properties by the trustees, (b)  the Patriarch alone can consecrate Morone, (c)  that  Exhibit  BP  is the true Canon  of  the  Jacobite Church, and (d)  that  the  Catholicate was  not  properly  established, cannot,  on  these  grounds, be considered  to  have  become aliens to the original church. So the question is more properly whether the defendants have seceded  from the original church and formed a  new  church. In  the nature of the suit, the plaintiffs can succeed  only if they make out, (A)  that  the  defendants are using  the  trust  properties belonging to Malankara Jacobite Church for the  maintenance, support and benefit of another and a different body,  namely Malankara Orthodox Syrian Church, and (B)  that the plaintiffs are the duly elected trustees." Likewise,   Nokes  J.  at  pp.  355-356  referred.  to   the concession as follows:- "............ In this court the defendants’ advocate did not seek  to  disturb the finding that the  plaintiffs  had  not become aliens to the church.  Indeed, as previously  stated, he based his case on the ground that both parties were still within  the  church.   This  abandonment  of  his   clients’



contention  in the lower court was no doubt due to the  fact that  the  written statement involved an  admission  of  the plaintiff’ 69 538 case;  for  the  plaintiffs  in effect  said,  ’we  are  the trustees  of the Patriarch’s church,’ while  the  defendants said,  ’we  are  the  trustees of  a  church  to  which  the Patriarch  is  an alien.’ Nor was any attempt made  here  on behalf  of the defendants to challenge the finding that  the trust  had  not become altered; for any  contention  to  the contrary provided no defence and was a further admission  of the plaintiffs’ case.  But the existence of this  allegation on  the  pleadings  serves  to  emphasise  the   defendants’ attitude to the trust." Further down the learned Judge said "......   The  learned  Judge  held  against   the   general allegation  of separation (judgment, paragraph 133), but  in favour of the special allegation as to the plaintiffs’  view on temporalities (paragraph 108).  He also recorded findings as  to  the  limited  scope of  the  Patriarch’s  powers  in temporal affairs (paragraphs 58, 60), which seem to be based on  the  erroneous  view inter alia  that  persons  who  are subject  to  two systems of law are amenable  for  different aspects  of  the same offence only to punishment  under  one system   (see  paragraph  57).   The  general  finding   was challenged  in the memorandum of objection (grounds  10  and 11), but not in the argument for the defendants here, which, as previously stated, proceeded on the basis that both sides were still members of the church." On a plain reading of the two judgments it appears that  the majority  Judges took the view that even if, as held by  the District  Judge, the plaintiffs had been guilty of acts  and conduct  imputed  to them it was not necessary for  them  to enquire whether those acts were mere heresy or also amounted to  a  setting up of a new church or whether the  Canon  law requiring the verdict of an ecclesiastical authority applied to  both  or  only to acts of heresy.   This  attitude  they adopted  simply  because  of what they  understood  was  the concession  made by the defendants’ advocate,  namely,  that the  plaintiffs had not gone out of the church.  They,  how. ever,  felt  bound, notwithstanding the  contention  of  the defendants that they were also, for similar reasons. 539 within  the church, to consider whether the  defendants  had voluntarily  gone  out  of the church by setting  up  a  new church  as  evidenced  by  their  aforesaid  acts.   Learned counsel for the appellants contends, and we think there is a good  deal  of force in such contention, that  the  majority Judges  do  not  appear to have  examined  the  question  or considered whether voluntarily going out of the church was a concept separate and distinct from acts of heresy and if  so whether the acts and conduct imputed to the plaintiffs apart from  being acts of heresy from an ecclesiastical  point  of view, amounted also to voluntarily going out of the’  church by  establishing a new church.  Nor do they appear  to  have considered  whether  the Canon law requiring verdict  of  an ecclesiastical authority was  required in both cases.  There can be no doubt,therefore, on the face of the judgment, that the  decision of the learned Judges in this behalf  proceeds on what they considered was a concession made by the defend- ants’  advocate that the plaintiffs had not gone out of  the church.   Learned  counsel  for  the  defendants  appellants contends  that this was a misapprehension and he  relies  on the  affidavit of Sri E. J. Philipose, advocate, with  which



were  produced  two  letters written to him  by  the  senior advocate.  In the first letter it is stated as follows:- "I  argued at length of the misconduct of the plaintiffs  in going  against  the basic conditions of  the  Royal  Courts’ judgment  and said that while the conduct of each  party  is open  to examination neither could be said to have left  the church.  Their acts may be set aside in both cases but  they cannot  be said to have left the church.  The Judges  cannot accept it in one case as a concession and in the other  case as  my submission.  Deciding one part of it as a  concession not requiring the decision of Court is unjust to my  lengthy argument  on the misconduct of the plaintiffs; in regard  to their diversion of property from the trust - " In the second letter we find the following passages:- "Throughout my argument was that the plaintiffs had steadily and consistently’ set at naught the 540 fundamental  principles  of the charity as  settled  in  the judgments of the Royal Court and the Cochin Court. As between the charge and counter charge of violation of the foundation rules, I expressed it as my view that while their views may be corrected by the Court neither party should  be treated  as  having become aliens to the  church  by  reason merely  of  erroneous views.  That is what is  explained  in paragraph 17 of the grounds.  My opinion so expressed is not to  be  treated  as  a concession of  the  one  case  and  a submission  as to the other.  If my view of the law was  not acceptable the learned Judges must decide and not treat  one part of a connected statement as a concession not  requiring to be considered by the Court." In the review petition ground No. 17 is as follows     "Their  Lordships’  observation  that  the   defendants’ Advocate based his case on the ground that both parties were still  within the Church and that the  defendants’  Advocate conceded  that the plaintiffs have not left the  church  and that  they  were as good members of  the  original  Jacobite Syrian Church as anybody else is inaccurate and  incomplete, and  misleading.  The Advocate devoted a great part  of  the argument  to showing that the plaintiffs have departed  from the  constitution  as settled by the Royal  Court  Judgment. The  plaintiffs  stated that the defendants  have  left  the Church.   In  reply the argument was that there is  no  such thing as ipso facto secession merely because of  differences of  views on the powers of the Patriarch or about the  Canon to be followed.  It was in that sense and in that sense only that the argument was advanced that in law it must be  taken that  both parties were within the Church.  The Judges  were not justified in taking it out of its setting and using part of  it  as  an admission in support of  the  plaintiffs  and rejecting   the  other  portion  as  a  mere  argument   not sustainable  in law so far as the defendants are  concerned. If it should be treated as an admission at all it must  have been accepted or rejected as a whole.  It must not have been torn piecemeal and part used and part rejected.. 541 The  reasons  as signed for concluding that  the  defendants have gone out of the Church apply even more strongly to  the plaintiffs and the Judges should have dismissed the suit  in limine.    Their   Lordships   failed  to  note   that   the   basic constitution  of the Church had been laid down by the  Royal Court   Judgment  and  the  plaintiffs  by   disowning   and repudiating it had really seceded from it.    If  the  view of the court was that  departure  from  the rules of the foundation put the parties out of the Church it



should  apply  alike to both the parties and  the  statement that neither party had gone out of the Church cannot be used to  sustain  the  plaintiffs’ right and  at  the  same  time rejected  as  untenable  to support  the  precisely  similar rights of the defendants.    Their  Lordships  failed  to note  that  the  defendants’ Advocate  strongly urged that it was necessary to  have  the charges framed, enquiry held and due and proper grounds made out  before a person can be put out of the Church and  there was  not even a whisper of it as, having been complied  with in this case. Their  Lordships  also failed to note that there can  be  no such thing as an entire body of persons against whom nothing was  alleged  or proved being held to have gone out  of  the Church. Their Lordships failed to note that the so-called  admission did  not  in any way affect the defendants’  case  that  the Patriarch  and  the  plaintiffs  and  their  partisans  have voluntarily  left  the Church and had thereby ceased  to  be members thereof." Learned:  Attorney-General strongly objects to any reference being  made to the facts contained in the affidavit of  E.J. Philipose  or  the  letters produced along with  it  and  he refers  us to the decision of this Court in Sha  Mulchand  & Co.  Ltd.  v. Jawahar Mills Ltd.(1), and the  cases  therein referred  to and to the case of Reg. v. Pestanji Dinsha  and Another(1).   It  will, however, be noticed  that  what  was deprecated  in that case was the fact that no affidavit  had been  filed before the trial Court for the rectification  of what, in the appeal Court, (1) [1953] S.C.R. 351 at P. 366. (2) 10 Bom H.C.R. 75. 542 was  alleged  to  have been wrongly recorded  by  the  trial Judge.  The Privy Council in Madhu Sudin Chowdri V. Musammat Chandrabati  Chowdhrain(1)  also suggested that  the  proper procedure was to move. the Court in whose judgment the error is  alleged  to  have crept in.  In this  case,  as  already stated,  an  affidavit  was filed before  the  appeal  Court itself  while the Chief Justice and Nokes J. were  still  in office.   Further, if, as laid down in the judgment of  this Court to which reference has been made, the proper procedure is  to  apply  to the Court whose judgment  is  said  to  be founded on a misconception as to the concession made by  the learned  Advocate  appearing before it, by  what  procedure, unless  it be by way of review, could that Court  be  moved? Indeed, the Madras case referred to in the judgment of  this Court freely indicates that the application should be by way of  review.   Patanjali Sastri J. (as he then  was)  sitting singly in the Madras High Court definitely took the view  in Rekhanti   Chinna   Govinda  Chettiyar   v.   S.   Varadappa Chettiar(2)   that  a  misconception  by  the  Court  of   a concession made by the Advocate or of the attitude taken  up by the party appears to be a ground analogous to the grounds set  forth  in  the first part of  the  review  section  and affords  a good and cogent ground for review.   The  learned AttorneyGeneral contends that this affidavit and the letters accompanying  it cannot be said to be part of ’,the  record" within  the I meaning of Order 47, rule 1. We see no  reason to construe the word " record " in the very restricted sense as  was  done  by  Denning L.J.  in  Rex  v.  Northumberland Compensation  Appeal Tribunal Ex-Parte Shaw(1) which  was  a case  of  certiorari and include within that term  only  the document which initiates the proceedings, the pleadings  and the adjudication and exclude the evidence and other parts of



the  record.  Further, when the error complained of is  that the Court assumed that a concession had been made when  none had  in  fact been made or that the Court  misconceived  the terms  of the concession or the scope and extent of  it,  it will not generally appear on the (1)  (1917) 21 C.W.N. 897 (2)  A.I.R. 194o mad, 17. (3) [1952] 2 K.B. 338 at PP- 351-352. 543 record  but will have to be brought before the Court by  way of an affidavit as suggested by the Privy Council as well as by  this Court and this can only be done by way  of  review. The cases to which reference has been made indicate that the misconception  of the Court must be regarded  as  sufficient reason analogous to an error on the face of the record.   In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment. Turning to the affidavit and the letters and the ground  No. 17 of review it is quite obvious that the defendants had not given  -up their contention, upheld by the  District  Judge, that the plaintiffs had been guilty of the acts and  conduct imputed  to  them.   What  the.  learned  Advocate  for  the defendants did was to accept the Canon law as interpreted by the  District  Judge,  namely that nobody goes  out  of  the church  without the verdict of an ecclesiastical  authority, whether  the acts complained of amount to acts of heresy  or to  the  establishment  of a new church so as  to  make  the persons who are guilty of such conduct aliens to the  faith. If  the majority Judges took the view that such was not  the Canon  law  and that the same acts and conduct may  have  an ecclesiastical aspect in the sense that they amount to  hers punishable  as  such  and may also  amount  to  a  voluntary separation  from the church which is not  an  ecclesiastical offence   and   does  not  require  the   verdict   of   any ecclesiastical  authority to place the guilty person out  of the  church then it was clearly incumbent upon the  majority Judges to consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the  dual aspect,  namely,  amounted  to  an  ecclesiastical   offence requiring excommunication and also to a voluntary separation which  not being an ecclesiastical, offence did not  require an  ecclesiastical verdict to-place a guilty person  out  of the  pale of the Church.  This, on the face of the  judgment the learned Judges failed to do. Learned Attorney-General has submitted that the  allegations against the plaintiffs, are five in number, namely- 544 (1)  The  Patriarch has Temporal powers over the  properties of the Malankara Church; (2)  The  Patriarch has got the power acting by  himself  to excommunicate and ordain a Bishop; (3)  Only the Patriarch may consecrate Morone (4)  The Canon of the Church is Ex.  XVIII in O.S. No. 94 of 1088; and (5)  The Catholicate has not been validly instituted in  the Malankara Church; and suggests that these charges have been gone into directly or indirectly by the majority Judges and that, therefore, no prejudice’  has  been caused.  He, however,  cannot  dispute that  the  Judges have failed to consider and  come  to  any definite  finding on some of them.  We do not consider  that the  contention of the learned Attorney General is  entirely well  founded.  Issue20(1) contains several charges  against the  plaintiffs  and even if charges (a) and (b)  have  been



referred  to in the majority judgment, the charges (c),  (d) and  (e)  have certainly not. been dealt with.   As  to  the temporal  power of the Patriarch the District Judge held  in paragraph  58  of  his judgment that the  Patriarch  had  no temporal  authority  or  jurisdiction or  control  over  the Malankara  Jacobite Syrian Church and its temporalities  and that  the,  power  of  general  supervision  over  spiritual Government  conceded  to the Patriarch in Ex.   DY  did  not carry  with  it  by  necessary  implication  the  right   to interfere  in  the administration of the  temporalities  and properties  of the Church.  The decision to the contrary  in 41 T.L.R. I -cannot be regarded as having any bearing  after that judgment was set aside subject only to three points  as here  in  before  mentioned.  It does not  appear  that  the majority  Judges considered whether the  plaintiffs  imputed full temporal powers to the Patriarch or the limited one  as conceded  to  him in Ex. DY and if they did  impute  to  him -full  temporal  powers  whether they had  departed  from  a fundamental tenet of the Church.  They do not also appear to have  considered  whether,  if  the  plaintiffs   originally pledged  themselves to the tenet of full temporal  power  of the  Patriarch  and  thereby  departed  from  a  fundamental article and such *departure involved their having 545 become  aliens, any subsequent change in their  attitude  by limiting it as in Ex.  DY would make a difference.  Further, as to the power of consecrating Metropolitans Nokes J. found that  a  validly appointed Catholicos had the  power,  under both  versions  of the Canon,  to  consecrate  Metropolitans without  a Synod and that by so claiming the defendants  had not become aliens to the faith.  The learned Judge, however, did  not consider the implication of this finding so far  as the plaintiffs were concerned.  This finding may lead to the implication that the claim that the Patriarch alone has  got the  power  of ordination and the Catholicos  has  not  that power cannot but be regarded as a departure from the  Canon. Issue  20(1)(a)(1)  which  relates to  the  consecration  of Morone has been found in favour of the defendants. - If  the defendants  have  not gone out of the Church by  making  the claim  that Morone may be consecrated by the  Catholicos  or the Metropolitan in Malankara then the learned Judge  should have  considered  whether  a denial of  such  right  by  the plaintiffs   constituted  a  departure  by  them  from   the canonical  law.  This the learned Judge failed to do.  Issue 20(1)  (a)  (iii)  related  to  the  establishment  of   the Catholicate.    In   "pleading"  No.  124   the   plaintiffs maintained  that a Catholicate had not been  established  at all.   The  District Judge held that Abdul  Messiah  by  his Kalpana  Ex.  80  revived  the  Jacobite  Catholicate.   The respondents’  ground  of  appeal  No.  17  assumed  that   a Catholicate had been established.  Nokes J. held that  Abdul Messiah  was a Patriarch, that a Patriarch had the power  by himself and without the Synod to establish a Catholicate and that a Catholicate had been established by him although  the old   Catholicate  of  the  East  had  not   been   revived. Sathyanesan J., however, held that the establishment of  the Catholicate  in  Malankara was  dubious,  surreptitious  and uncanonical  and that no Catholicate had  been  established. The two judgments appear to be somewhat at variance in  this respect.   In any case, Nokes J. has not considered  whether the  stand taken by the plaintiffs that no  Catholicate  had been establisbed at all amounts to a departure by them  from the injunctions of the Canon law, On a fair reading of  70 546



the  majority judgments it appears to us that  the  majority Judges have been misled by a misconception as to the  nature and  scope of the concession alleged to have been  made  "by the  defendants’  advocate.   If the  acts  imputed  to  the defendants  amounted to a voluntary separation, the  learned Judges  should have considered whether the acts  imputed  to the plaintiffs likewise amounted to a voluntary  separation. If  the  defendants  had  not gone  out  of  the  Church  by asserting that a Catholicate had been established, that  the Catholicos  can ordain Metropolitans and  consecrate  Morone then  they should have considered whether by  denying  these assertions  the plaintiffs had not gone out of  the  Church. This they failed to do.  They could not properly decline  to go into the question of fact on account of the admission  of the defendants’ advocate that the plaintiffs remained in the Church.   Such admission at beat was an admission as to  the canon   law  and  the  decision  that  the  defendants   had voluntarily gone out of the Church even in the absence of an ecclesiastical  verdict necessarily implies that the  conce- ssion   made  by  the  defendants’  advocate  requiring   an ecclesiastical verdict as a condition precedent to voluntary separation  also  was  obviously  wrong  and  an   erroneous concession of law made by the defendants’ advocate could not be  relied  upon  for saving  the  plaintiffs.   ’The  fact, therefore,  that  cross-objection No. 11 filed in  the  High Court by the defendants does not appear to have been pressed makes  no  difference.  In our opinion, for  reasons  stated above, this head of objection raised by the learned advocate for  the  appellants  before  us  is  well-founded  and  the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of  the Code of Civil Procedure for allowing the review. The  last  point taken up by the learned  advocate  for  the appellants is that although certain matters had been  agreed to  be  left out in connection with issue No.  11  (a),  the learned  Judges took an adverse view against the  defendants on  matters which had been so left out by agreement.   Issue No. 1 1 relates to the powers of the Patriarch.  Clauses (b) to  (1) relate to specific powers of the Patriarch.   Clause (a) of that 547 issue  is  vague  and is expressed in  very  general  terms. Paragraph 60 of the District Judges judgment is as follows:-     "60.  It was stated by the advocates on both sides  that it is unnecessary for the purpose of this suit to  determine or  decide in a general and comprehensive manner  or  define exhaustively all the powers that the Patriarch may have over or  in  respect  of  the Malankara  Church  as  the  supreme spiritual  or  ecclesiastical  head of  the  whole  Jacobite Church including Malankara and I also think it is not within the  province or competency of this court to attempt  to  do it.  Whether he is the supreme spiritual head or whether  be is  the  supreme  ecclesiastical head,  his  powers  as  the Patriarch in respect of the matters specified under  clauses (b)  to  (h) of issue II. (which have  formed  the  subject- matter  of  dispute in this case) have been  considered  and defined under these various headings under this issue II and it has also been stated how far they have been determined or upheld by law courts, custom, practice and precedent so  far as Malankara is concerned and these findings, it is conceded on both sides, will suffice." It  will be noticed that after this agreement issue  No.  11 related  only to certain specific powers of  the  Patriarch. The  findings on these issues by themselves do not  lead  to any result.  They were, as it were, only introductory issues



and were material for other issues, e. g. issues 14, 15,  19 and  20.   In other words, the general issue  II  (a)  being given   up,   the   other  issues   mentioned   above   were automatically  limited to the specific acts relating to  the specific powers of the Patriarch.  The majority Judges have, however,  certainly gone into three matters which were  then agreed to have been left out, e. g., (a) obligation to  obey the  Patriarch  whether canonically installed. or  not,  (b) extent  of the right of the Patriarch by himself  to  decide matters of faith and (c) whether the Patriarch has the right to  approve of a Catholicos in the sense that such  approval was  necessary.  These matters are not averred in  pleadings and  no  specific  issues  have  been  raised  and  in   the circumstances,   should  not  have  been  gone  into.    The suggestion is that these points are covered by other issues. It  is  said  that  the learned Judges  held  that  the  new constitution Ex.  AM amounted to a 548 repudiation  of  the  authority  of  the  Patriarch  on  the following grounds:- (1)  Installation of Catholicos ignoring the Patriarch; (2)  Absence  of  a  provision  for  the  approval  by   the Patriarch or Malankara Metropolitan; (3)  Ordination of Metropolitan and the issuing of Staticons by the Catholicos, and (4)  the right to collect Ressissa. These  points are said to be covered by issues II (b),  (c), (g)  and  (h),  and  also by issues 10(b), 14,  15  and  16. Assuming it is so, it is clear that the learned Judges  also founded  themselves  on  the three  points  here  in  before mentioned  which  do not appear to fall within  any  of  the issues  in the case except issue II (a) which was given  up. To  decide  against  a party on matters which  do  not  come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record.   It is futile to speculate as to the effect these matters had on the  minds - of the Judges in comparison with the effect  of the other points. The  above discussion, in our opinion,, is quite  sufficient for  the purpose of disposing of this appeal and it  is  not necessary  to go into the several other minor points  raised before  us.  In our opinion the appellants have made  out  a valid ground for allowing their application for review.   We accordingly allow this appeal, set aside the judgment of the High  Court and admit the review.  As the  different  points involved  in  this appeal are intimately  interconnected  we direct the entire appeal to be reheard on all points  unless both  parties accept any of the findings of the High  Court. The  costs  must  follow the event and  we  order  that  the appellants  must get the costs of this appeal before us  and of the application for review before the High Court. We  need hardly add that the observations that we have  made in   this  judgment  are  only  for  the  purpose  of   this application  for review and should not be taken or  read  as observations  on the merits ’of the appeal now restored  and to be reheard by the High Court.                                     Appeal allowed. 549