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Case Number

Criminal Revn. Petn. No. 38 of 1952

Advocates

For the Appellant: M. K. Govinda Pillai P. I. Simon M. Abraham, Advocate.
For the Respondent: K. P. Abraham T. K. Joseph K. T. Ninan Joseph Augustine, Advocate.

Judges

Vithayathil, J.

Acts

S. 145 of the Travancore Code of Criminal Procedure corresponding to section 147 of the Indian Code.
Sec. 142, Travancore Code of Criminal Procedure (Section 144 of the Indian Code).
section 147 Criminal Procedure Code.4. 37 Cal 578 : 38 Cal 387 and 52 Cal 959
683.6. Section 147(1) of the Code of Crl. Procedure
section 147, Code of Criminal Procedure. Harries,
section 147 of the Code of Criminal Procedure.
section 145(5), Code of Criminal Procedure.
section 147, Code of Criminal Procedure
SECTION 147 CRIMINAL PROCEDURE CODE
section 147. Sub-section (5) of S. 145
SECTION 31 POLICE ACT
S. 31 of the Police Act.

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Smart Summary

Structured Summary of the Opinion — Revision in Misc. Case No. 1 of 1951 (Special First Class Magistrate's Court, Kottayam)

Factual and Procedural Background

The revision arises from Miscellaneous Case No. 1 of 1951 before the Special First Class Magistrate's Court, Kottayam (proceedings under section 147 of the Code of Criminal Procedure). The dispute concerned the right to officiate (fee right to officiate) in three churches at Kottayam — Cheriapally, Puthenpalli and Kurisupalli — all said to be under common management and belonging to the Malankara Jacobite Syrian Community. The community had split into two factions: the Catholicos' Party (to which the petitioner belonged) and the Patriarch's Party (to which the 1st counter-petitioner and other counter-petitioners belonged).

The facts leading to the criminal/protective proceedings: the 1st counter-petitioner was formerly officiating as a priest of the Catholicos' Party, later joined the Patriarch's Party and attempted to perform services. Members of the Catholicos' Party petitioned the District Magistrate (13-3-1951) under Sec. 142 (Travancore Code of Criminal Procedure / sec.144 Indian Code), resulting in a prohibitory order preventing the 1st counter-petitioner from entering the church and performing services. Subsequent police reporting and the likelihood of breach of the peace led the District Magistrate (23-3-1951) to close the three churches under Section 31 of the Police Act and to direct the First Class Magistrate to initiate proceedings under S.145 / S.147 (Travancore / Indian Code). Four revision petitions against the District Magistrate's and First Class Magistrate's orders were dismissed by the High Court on 28-4-1951.

Proceedings under Section 147 were then conducted: written statements were filed, one witness examined. On 14-2-1952 the 1st counter-petitioner sought dropping or a stay of the criminal proceedings pending two civil suits (O.S. No. 82/112? and O.S. No. 108/51) and relied on a prior Travancore High Court decision reported in 1946 Trav LR 683 as settling the dispute. On 15-3-1952 the First Class Magistrate rejected impleader of one petitioner, allowed some others, refused to stay the proceedings pending the civil suits, but nevertheless dropped the proceedings under Section 147 and canceled the preliminary order. The Magistrate gave as one reason that S.147 does not apply to disputes about the right to perform services in a church (viewing it as not a right of user of land), relying on certain High Court rulings (principally some Calcutta High Court decisions).

The present revision challenges the First Class Magistrate's order dropping the S.147 proceedings and cancelling the preliminary order.

Legal Issues Presented

Whether a dispute as to the right to perform services (worship/officiation) in a place of worship (church) falls within the ambit of Section 147 of the Code of Criminal Procedure (i.e., is a "dispute as to the right of user of land or water" that may give rise to Section 145/147 proceedings)?
Whether the learned First Class Magistrate erred in holding that he had no jurisdiction under Section 147 to inquire into a dispute regarding the right to perform services in a church and accordingly in dropping the proceedings on that ground?
Whether the decision of the Travancore High Court reported in 1946 Trav LR 683 (and related civil decrees/compromises) had finally settled the dispute between the parties so as to require cancellation of the preliminary order under Section 145(5) (i.e., whether "no such dispute ... exists or has existed") and thus justify dropping the S.147 proceedings?
Whether, given the pendency and eventual dismissal of a review petition against the 1946 Trav LR 683 decision, the learned Magistrate was obliged to treat that civil decision as finally determining the controversy for the purposes of Section 147 (and Sub-section (4) of that section which makes the Magistrate's order subject to the decision of the civil court)?

Arguments of the Parties

Revision Petitioner's Arguments (petitioner who challenged the Magistrate's order)

The learned First Class Magistrate's view that Section 147 does not apply to disputes about the right to perform services in a church is wrong.
The Calcutta High Court decisions relied upon by the Magistrate (which held that disputes about worship did not amount to a right of user of land) have been overruled by a recent Full Bench decision of that court in Dhirendra Nath Das v. Hrishikesh (AIR 1951 Cal 93), which held that a dispute as to right of worship in a temple necessarily involves a dispute as to the right of user of land within Section 147.

Counter-petitioners' Arguments (as presented in the opinion)

The controversy as to whether a priest of the Patriarch's Party had the right to officiate in the three churches had been finally settled by the Travancore High Court in 1946 Trav LR 683; therefore there was no dispute remaining that could justify Section 147 proceedings and the Magistrate should cancel the preliminary order under Section 145(5).
A compromise decree in O.S. No. 130/1100 (reported 29 Trav LJ 457) provided that only priests approved by the Malankara Metropolitan have the right to officiate in these churches; and the Travancore High Court in 1946 (reported at 1946 Trav LR 633/683 as referred to) had declared the 2nd counter-petitioner to be the lawful Malankara Metropolitan — hence the 1st counter-petitioner, being a priest approved by that Metropolitan, had a right to officiate and no further dispute existed.
It was also urged that a review petition against the 1946 Trav LR 683 decision had been pending (notice ordered) and that the review petition was dismissed only in December 1951 — so until dismissal the earlier decision had not become final.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhirendra Nath Das v. Hrishikesh, AIR 1951 Cal 93 (Full Bench)	Held that a dispute as to the right of worship in a temple involves a dispute as to the right of user of land within the meaning of Section 147 Cr. P.C.; overruled earlier contrary Calcutta decisions.	The court accepted this Full Bench decision as correctly stating the law and relied on it to reject the learned Magistrate's conclusion that Section 147 did not apply to disputes about the right to perform services in a place of worship.
Guiram Ghoshal v. Lal Behary Das, 37 Cal. 578	Earlier Calcutta decision relied on by the learned Magistrate (held that disputes of worship did not fall under Section 147).	Noted as one of the Calcutta decisions relied on by the Magistrate; the court records that these Calcutta decisions were overruled by the Full Bench in Dhirendra Nath Das (AIR 1951 Cal 93).
Ram Saran v. Raghu Nandan, 38 Cal. 387	Earlier Calcutta decision relied on by the learned Magistrate.	Noted as one of the Calcutta decisions which the Magistrate relied upon; the court states that such Calcutta Bench decisions cannot be maintained in view of the Full Bench overruling in Dhirendra Nath Das.
Surendra Nath v. Soshi Bhusan, 52 Cal. 959 (and 15 Bom 329 (sic.) as referenced)	Earlier Calcutta (and a Bombay) decision(s) relied on by the learned Magistrate to the effect that right to worship was not a right of user falling under Section 147.	Referred to as among the earlier decisions of the Calcutta Court which were held by the Full Bench in Dhirendra Nath Das to be incorrectly decided; the court rejected reliance on them.
Palaniyandi v. Palaniyappa / Palaniyandi Pandaram v. Paianiappa Thevan, 17 Cri LJ 235 (Mad)	A Madras single-judge decision holding that a dispute relating to the right to perform pooja in a temple would not come under Section 147.	Noted by the court as the only single-judge Madras decision taking that view; the court records that other Madras decisions took the opposite view and that the Madras single-judge decision was not decisive in light of subsequent authorities.
Muhammad Musaliar v. Kunjichek Musaliar, 11 Mad 323	Madras High Court decision referred to as taking the view that disputes of worship fall within Section 147.	Listed among Madras decisions adopting the view that disputes about right to perform services in places of worship fall within Section 147; referred to in AIR 1951 Cal 93 as supporting that view.
Kader Batcha v. Kader Batcha Rowthen, 29 Mad 237	Madras High Court decision adopting the view that disputes of worship fall within Section 147.	Referred to by the court as one of the Madras authorities taking the contrary (to the Calcutta earlier view) position and cited in AIR 1951 Cal 93.
Chidambara v. Sengoda, 27 Mad LJ 587	Madras decision supporting that dispute about worship is a dispute about user of land and so within Section 147.	Included by the court among Madras decisions to the effect that such disputes fall within Section 147.
Sinnaswami Chetti v. Palani Goundan, AIR 1925 Mad 779	Madras decision cited as supporting the view that disputes about worship fall under Section 147.	Referred to as one of the Madras cases taking the view opposite to the Calcutta single-judge cases; listed in AIR 1951 Cal 93.
Vellappa Goundan v. Ramaswamy Goundan, AIR 1938 Mad 537	Another Madras decision taking the view that disputes of worship fall within Section 147.	Included by the court among supporting Madras authorities.
Davaram v. Emperor, AIR 1920 All 452 (Allahabad)	Allahabad High Court decision holding that disputes about right to worship/operation fall within Section 147.	Noted by the court as supporting the view that disputes relating to performance of service in places of worship come within Section 147.
In Re Pandurang Govind, 24 Bom 527 (Bombay)	Bombay High Court decision cited as taking the view that disputes about worship fall within Section 147.	Listed as one of the High Court authorities adopting the view that such disputes are within Section 147.
Abdul Majid v. Mohammad Sahib Azizuddin, AIR 1941 Nag 171 (Nagpur)	Nagpur High Court decision cited as adopting the view that disputes about worship are disputes about user of land falling under Section 147.	Included among courts taking the view favouring application of Section 147 to worship disputes.
Thomas v. Skaria Kathanar, 31 Trav LJ 1223 (Travancore)	Travancore High Court decision taking the view that disputes about right to perform services in a place of worship come within Section 147.	Referenced by the court as a Travancore authority in support of the proposition that such disputes fall within Section 147.
Ahammadu Kunju v. Ammu Mohammed, 5 Cochin 507 (Cochin)	Cochin High Court decision adopting the view that disputes about performance of service in a place of worship are within Section 147.	Listed as one of the High Court decisions aligning with the view that a worship-right dispute is a user-of-land dispute under Section 147.
1946 Trav LR 683 (Travancore High Court decision)	Decision relied on by counter-petitioners as having declared the 2nd counter-petitioner the lawful Malankara Metropolitan and (according to the learned Magistrate) as having settled the controversy so far as right to officiate is concerned.	The court examined whether this decision had in fact finally settled the particular dispute over the three churches; concluded that it did not necessarily do so for the present parties and that the Magistrate had not made the requisite factual finding that no dispute remained; therefore the Magistrate's dropping of proceedings on that ground was not justified without a proper finding.
Compromise decree in O.S. No. 130/1100 (reported 29 Trav LJ 457)	Representative suit compromise providing that "As to the priests that are to officiate in these churches the decisions or commands of the Metropolitan in the matter will be accepted by the parties".	Referred to by counter-petitioners as support for the proposition that only priests approved by the Malankara Metropolitan have right to officiate; the court noted the submission but held that whether that decree finally settled the dispute for present parties was a matter of fact for the Magistrate to determine.

Court's Reasoning and Analysis

The court's reasoning proceeds in two principal strands corresponding to the two main reasons given by the First Class Magistrate for dropping the proceedings.

1. Jurisdiction under Section 147 (and the applicability of Section 145 procedure):

The learned Magistrate held that Section 147 applies only to disputes regarding the right of user of land or water and that the right to perform services in a church is not a right of user of land; he relied upon certain Calcutta High Court rulings and a Madras single-judge decision for that conclusion.
The court examined the Full Bench decision of the Calcutta High Court in Dhirendra Nath Das v. Hrishikesh (AIR 1951 Cal 93). In that Full Bench decision earlier Calcutta Bench cases were considered and overruled; the Full Bench held that a dispute as to the right of worship in a particular building necessarily involves the right to use that particular place for a particular purpose and therefore falls within the ambit of Section 147 Cr. P.C.
Having noted that many High Court decisions (Madras, Allahabad, Bombay, Nagpur, Travancore, Cochin) are of the view that disputes relating to the right to perform services in places of public worship come within Section 147, the court concluded that the learned First Class Magistrate erred in holding that he had no jurisdiction under Section 147 and therefore erred in dropping the proceedings on that ground. The court explicitly states that the learned Magistrate has "gone wrong" in this view.

2. Whether the 1946 Travancore High Court decision (1946 Trav LR 683) finally settled the controversy so that no dispute remained:

Section 145(5) (made applicable by Section 147(1)) provides that if it is shown that no such dispute exists or has existed, the Magistrate shall cancel the preliminary order and stay further proceedings; otherwise the order shall be final (subject to civil court decision under sub-s. (4)). Thus a factual finding that "no dispute exists or has existed" is a necessary basis to cancel the preliminary order.
The learned Magistrate stated that the 1946 Trav LR 683 decision had established the right of the Patriarch's Party to officiate in the three churches and therefore no dispute remained; as a consequence he dropped the Section 147 proceedings. The court examined that conclusion.
The court observed the factual history: proceedings under S.147 were started after the 1946 Trav LR 683 decision; despite that decision, members of the Catholicos' Party continued to assert that only their priests had the right to officiate; the District Magistrate had formed a view that the dispute was likely to cause breach of the peace and had acted under S.142 and S.31 (Police Act) before directing Section 145 proceedings.
The court noted submissions about a review petition against 1946 Trav LR 683 that had been pending and dismissed only in December 1951, but observed the learned First Class Magistrate had not specifically relied upon or recorded a conclusion about the review petition's dismissal as a factual basis for cancelling the order. The learned Magistrate did not record a definite finding that, by reason of the finality of the Travancore decision (or dismissal of any review), there was no dispute as a matter of fact.
The court emphasized that whether a dispute likely to cause breach of the peace exists is a question of fact for the Magistrate. If the Magistrate finds that the civil decision has finally settled the matter for present parties he must record that finding to justify cancellation. Conversely, if a dispute persists despite the civil decision, the Magistrate should continue the Section 147 inquiry and pass orders as appropriate.
Because the learned Magistrate failed to make the requisite factual finding and because there was evidence (e.g., competing claims and a dispute over church keys) that a dispute persisted, the court held the Magistrate's dropping of the proceedings on the ground that the matter was finally settled to be unjustified.

Result of reasoning: The court set aside the First Class Magistrate's order dropping the proceedings and canceled the cancellation — directing the Magistrate to take the file back and dispose of the matter according to law and in light of the observations recorded (i.e., to determine as a matter of fact whether a dispute exists and then proceed either to cancel the preliminary order under S.145(5) or to continue and frame appropriate orders under S.147).

Holding and Implications

Holding: The revision is allowed. The order of the learned First Class Magistrate dropping the proceedings under Section 147 and cancelling the preliminary order is set aside; the learned Magistrate is directed to take the case back to his file and dispose of it according to law in the light of the observations made in the opinion.

Implications / Consequences:

The court held that disputes concerning the right to perform services in a place of worship fall within the ambit of Section 147 Cr. P.C., aligning with the Full Bench decision in Dhirendra Nath Das v. Hrishikesh and with the general view of most High Courts referred to in the opinion. Consequently, a First Class Magistrate does have jurisdiction to inquire under Section 147 into such disputes.
Because the Magistrate failed to make a required factual finding that "no dispute exists or has existed" (Section 145(5)) based on the alleged finality of 1946 Trav LR 683 (and any associated review proceedings), the Magistrate's order dropping the proceedings was set aside. The Magistrate must now determine, on the evidence and with findings of fact, whether the dispute has in fact ceased; if not, the Magistrate should proceed under Section 147 and take such orders as are appropriate to prevent a breach of the peace.
Direct effect on parties: The Section 147 proceedings are not finally concluded in favor of any party by the Magistrate's earlier order; the inquiry must be re-opened and decided in accordance with law and facts. The court did not declare a final entitlement of any party to officiate; it remanded the matter for proper factual determination and appropriate judicial action by the Magistrate.

Final Court Disposition: Revision allowed.

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Kochitti Chacko v. Markose Kathanar, Joseph Kathanar Counter Petitioners.

1. The petitioner in Miscellaneous; Case No. 1 of 1951 of the Special First Class Magistrate's Court, Kottayam, is the Revision; Petitioner. The Miscellaneous case is one taken under section 147 of the Code of Criminal Procedure. The dispute relates to fee right to officiate in three churches in Kottayam namely Cheriapally, Puthenpalli, and Kurisupalli. These three churches are said to be under the same management. They belong to the Malanara Jacobite Syrian Community. There are now two factions in that community, one called the Patriarch's Party and the other, the Catholicos' Party. The Petitioner belongs to the Catholicos' Party, while the 1st counter petitioner belongs to the Patriarch's Party. The second counter petitioner is the Malankara Metropolitan belonging to the Patriarch's Party and the 3rd counter petitioner is the Diocesan Metropolitan of Kottayam, belonging to that Party.

2. The petitioners' case is that these three churches belong to the Catholicos' Party and that the first counter petitioner was officiating in these churches as a priest belonging to that party and that he subsequently seceded from that party, and went over to the Patriarchs' side. When the first counter petitioner attempted to perform services in the Cheriapalli as a priest of the Patriarch's party, certain members belonging to the Catholicos' Party petitioned the District Magistrate, Kottayam on 13-3-51 for action being taken against him under Sec. 142, Travancore Code of Criminal Procedure (Section 144 of the Indian Code). The District-Magistrate thereupon, passed an order prohibiting the first counter petitioner from entering the church and performing services there. In the meanwhile certain members of the Patriarch's Party complained to the District Magistrate that the members of the Catholicos' Party were attempting to install a priest belonging to that party in the place of the first counter petitioner. The District Magistrate referred the matter to the police and on their report passed an order on 23-3-1951, under Section 31 of the Police Act, closing the three churches until further orders, as he was satisfied that the dispute between the two parties regarding the right to perform services in the three churches, was likely to cause a breach of the peace. He also directed the local First Class Magistrate to initiate proceedings under S. 145 of the Travancore Code of Criminal Procedure corresponding to section 147 of the Indian Code. Accordingly proceedings were started under that section by the First Class Magistrate and & preliminary order was passed on 3-4-1951. Proceedings started under Section 144 were accordingly dropped. Four Revision Petitions were filed in the High Court from the orders of the District Magistrate, and of the First Class Magistrate, and the High Court by its order dated 28-4-1951 dismissed those petitions and confirmed the orders of the District Magistrate and the First Class Magistrate.

3. Written statements were filed by both parties and one witness was examined in the case. On 14-2-1952 the first counter petitioner filed a petition for dropping the proceedings or for staying the same till the disposal of two civil suits between the parties and relating to the churches in dispute, viz. O.S No. 82 of 1122 of the Kottayam District Court and O.S No. 108/51 of the Kottayam Munsiff's Court. The reason given for dropping the proceedings was that the dispute between the parties relating to the right to officiate in the churches has been finally settled by the decision of the Travancore High Court in O.S No. 111/1113 of the Kottayam District Court, which is reported in 1946 Trav LR 683. In the meanwhile one Philipose Kathanar who belongs to the Catholicos' Party filed a petition for getting himself impleaded as a party to the proceedings. Certain other persons also filed similar petitions. The learned First Class Magistrate passed an order on 15-3-1952 relating to all these petitions. The petition of Philipose Kathanar was rejected. Some of the other persons were impleaded, while others were not allowed to be impleaded. With regard to the petition of the 1st counter petitioner, the learned Magistrate disallowed the prayer for stay of proceedings till the disposal of the two civil suits. But he dropped the proceedings under Section 147 and cancelled the preliminary order. The revision is from that order. One of the reasons given by the learned Magistrate for dropping the proceedings, is that he has no jurisdiction under section 147, Code of Criminal Procedure to initiate proceedings in respect of a dispute relating to the right to perform services in a church. According to the learned Magistrate the section applies only to a case of dispute regarding the right of user of land or water, and that the right to perform services in a church is not a right of user of land. He has relied on certain rulings of the Indian High Courts, particularly of the Calcutta High Court, as the basis of this view. The rulings relied on are — ‘Palaniyandi Pandaram v. Paianiappa Thevan’, 17 Cri LJ 235 (Mad), — ‘Guiram Ghoshal v. Lal Behary Das’, 37 Cal. 578; — ‘Ram Saran v. Raghu Nandan’. 38 Cal. 387; — ‘Surendra Nath v. Soshi Bhusan’, 52 Cal 959 and — ‘15 Bom 329 (sic.)’. It is argued for the revision petitioner that this view of the learned Magistrate is clearly wrong and that the decisions of the Calcutta High Court referred to by him have been overruled in a recent Full Bench decision of that court in — ‘Dhirendra Nath Das v. Hrishikesh’, AIR 1951 Cal 93. In that case the decisions of the various High Courts in India on the point were considered and the learned Judges came to the conclusion that a dispute as to the right of worship in a temple necessarily involves a dispute as to the right of user of land, within the meaning of that term in section 147, Code of Criminal Procedure. Harries, C.J observed thus in that case:

“The view expressed in the earlier cases of this court cannot be maintained, and in my judgment they should be overruled. In these cases the Benches concerned failed to appreciate that a right to worship in a particular place must involve the right to use that particular place for a particular purpose, or in a particular manner. The right to worship, as I have said, cannot be regarded as something entirely apart from the place of worship, if what has to be considered is the right to worship a deity in a particular building or place. The view of the other High Courts must. I think, be accepted and that being so it must be held that a dispute as to the right to worship a deity in a particular temple is a dispute falling within the ambit of section 147 Criminal Procedure Code”.

4. 37 Cal 578 : 38 Cal 387 and 52 Cal 959 relied on by the learned Magistrate were expressly overruled by their Lordships. ‘Palaniyandi v. Palaniyappa’, 17 Cri LJ 235 (Mad) another case relied on by the learned Magistrate is a decision of the Madras High Court by a single Judge. That is the only decision of the Madras High Court, in which it was held that a dispute relating to the right to perform pooja in a temple would not come under section 147 Criminal Procedure Code. This case also is referred to in AIR 1951 Cal. 93 There are various other rulings of the Madras High Court in which a contrary view was taken. Those decisions are referred to in AIR 1951 Cal 93. They are — ‘Muhammad Musaliar v. Kunjichek Musaliar’ 11 Mad 323, — ‘Kader Batcha v. Kader Batcha Rowthen’, 29 Mad 237; — ‘Chidambara v. Sengoda’, 27 Mad LJ 587; — ‘Sinnaswami Chetti v. Palani Goundan’, AIR 1925 Mad 779; — ‘Vellappa Goundan v. Ramaswamy Goundan’, AIR 1938 Mad 537. The same view was taken by the Allahabad High Court in — ‘Davaram v. Emperor’, AIR 1920 All 452, by the Bombay High Court in — ‘In Re Pandurang Govind’, 24 Bom 527, and by the Nagpur High Court in — ‘Abdul Majid v. Mohammad Sahib Azizuddin’, AIR 1941 Nag 171. The Travancore High Court has taken the same view in — ‘Thomas v. Skaria Kathanar, 31 Trav LJ 1223, and the Cochin High Court in — ‘Ahammadu Kunju v. Ammu Mohammed’, 5 Cochin 507. Practically all the High Courts in India are now of the view that a dispute relating to the right of performance of service in a place of public worship comes within the purview of section 147 of the Code of Criminal Procedure. I am, therefore, clearly of opinion, that the learned First Class Magistrate has gone wrong in his view that the dispute in this case does not come under S. 147, Crl. P.C and that he has no jurisdiction to hold an enquiry under that section. The learned Magistrate has, therefore, gone wrong in dropping the proceedings on that ground.

5. The second reason given by the learned Magistrate for dropping the proceedings is that according to him the decision of the Travancore High Court in — ‘1946 Trav LR 683’ has finally settled the controversy between the parties so far as the matter in dispute in these proceedings is concerned. In the words of the learned Magistrate,

“there can no longer be any dispute about the established (by judgment in the — ‘1916 Trav LR case’) right of the Patriarch's party to officiate and conduct service in the three churches, the rights having been judicially recognised in — ‘1946 Trav LR 683’.”

6. Section 147(1) of the Code of Crl. Procedure provides that the provisions of section 145 shall, as far as may be applicable to an inquiry under section 147. Sub-section (5) of S. 145 reads thus:

“Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.”

7. It is therefore clear that if it is shown that no dispute likely to cause a breach of the peace exists or has existed regarding the alleged right of the 1st counter-petitioner to perform services in the churches in question, the Magistrate is bound to cancel the preliminary order passed in this case. It is argued for the counter-petitioners that the real point in dispute between the parties in these proceedings is whether a priest belonging to the Patriarch's Party has got the right to officiate in these churches, that this point has been finally decided by the High Court of Travancore in — ‘1946 Trav LR 683’, and that, therefore, no dispute exists between the parties regarding that question.

8. It is further contended that in the compromise decree in O.S No. 130/1100 of the Kottayam District Court, which was a representative suit relating to the churches in question it is provided that only priests approved by the Malankara Metropolitan have got the right to officiate in these churches and that in — ‘1946 Trav LR 633’ the 2nd counter-petitioner in these proceedings has been declared to be the lawful Malankara Metropolitan. It is, therefore, argued that only priests approved by the 2nd counter-petitioner can perform sendees in these churches. The 1st counter-petitioner being a priest approved by the 2nd counter-petitioner it is contended that there can be no dispute between the parties relating to his right to officiate in the churches in question. The compromise decree in O.S No. 130/1100 is reported in — ‘29 Trav LJ 457’. The term in the compromise relating to the question is this: “As to the priests that are to officiate in these churches the decisions or commands of the Metropolitan in the matter will be accepted by the parties”.

9. On the other hand, it is argued for the petitioner that the decision in — ‘1946 Trav LR 683’ has not settled the dispute between the parties regarding the right to perform services in the churches in question, that these churches were not the subject-matter of the suit in that case, that they do not form part of the trust properties which were the subject-matter of that suit, that they were all along in the possession of the Catholicos' Party, that even after the decision in — ‘1946 Trav LR case’ suits have been instituted by the Patriarch's Party for the possession and management of these churches and their properties, which suits are still pending, and that the decision in — ‘1946 Trav LR 683’ is not binding on the petitioner and those members of the Catholicos' Party who are not parties to that suit. It is also contended that according to the decision in that case the Catholicos' Party have gone out of the Jacobite church and have constituted a church of their own and that, if it is so, the churches in question must be deemed to belong to that independent church. It is, therefore, argued that it cannot be said that there is no dispute at present between the parties, relating to the right to perform services in these churches.

10. If the decision in — ‘1946 Trav LR 683’, has finally set at rest the dispute between the parties relating to the right to perform services in these churches the Magistrate is bound, to cancel the preliminary order and to stay all further proceedings thereon as provided in section 145(5), Code of Criminal Procedure. But in this case proceedings under S. 147 were started long after the decision in — ‘1946 Trav LR 683’. Even after the decision in that case, the Catholicos' Party was contending that priests belonging to their party alone have the right to officiate in these churches. The dispute that gave rise to these proceedings was one that existed even after — ‘1946 Trav LR 683’, was decided by the Travancore High Court. The District Magistrate was satisfied that this dispute was likely to cause a breach of the peace and he at first issued a prohibitory order against the 1st counter-petitioner under S. 142 of the Travancore Code of Criminal Procedure and subsequently directed the 1st Class Magistrate to take proceedings under S. 145 of that Code. The breach of peace was so imminent that on the report of the police the Magistrate even took action under S. 31 of the Police Act. The High Court confirmed the order of the District Magistrate. It cannot, therefore, be said that when the proceedings were started, there was no dispute between the parties relating to the user of the churches in question, although there was the decision of the Travancore High Court in — ‘1946 Trav LR 683’, declaring that the 2nd counter-petitioner is the lawful Metropolitan of the Malankara Jacobite Syrian Church.

11. It is, however, argued for the counter-petitioners that when proceedings were started in this case, there was a petition pending in the High Court to review the decision in — ‘1946 Trav LR 683’, that notice has been ordered on that petition and that it was only in December 1951 that, that petition was dismissed by this court. It is, therefore, contended that it is only after the dismissal of the review petition that the dispute between the parties relating to the right to officiate in those churches can be said to have been finally settled. It is pointed out that in the report of the police to the District Magistrate it was stated that the Catholicos' Party was contending that the decision in — ‘1946 Trav LR 683’, had not become final by reason of the pendency of the Review Petition. Now, that the Review Petition has been dismissed, it is argued that there can be no further dispute between the parties regarding the right of the 1st counter-petitioner to officiate in these churches and that, therefore, the Magistrate has no jurisdiction to continue the proceedings under S. 147, since under Sub-s. (4) of that section an order of the Magistrate under the section is subject to the decision of the civil court.

12. But the learned First Class Magistrate has not given this as a reason for dropping the proceedings. He has not even referred to the Revision Petition and to the effect of the dismissal of that petition by this court so far as the controversy in these proceedings is concerned. Neither has the first counter-petitioner mentioned this as a ground in his petition for dropping the proceedings, although in the affidavit filed in this court by the advocate who appeared for him in the court below, it is stated that this point was argued before the learned Magistrate. The question whether a dispute likely to cause a breach of the peace exists or has existed between the parties relating to the user of the churches in question is one of fact. If by reason of the dismissal of the review petition the dispute between the parties has ceased to exist or must be taken to have ceased to exist, the learned Magistrate ought to record a finding to that effect, and then only he will be justified in cancelling the preliminary order. The learned Magistrate has not recorded a definite finding on that question. He only says that by reason of the decision in — ‘1946 Trav LR 683’, there can no longer be any dispute relating to the right of the Patriarch's party to conduct services in the churches in question. As stated above, there has been real dispute between the parties relating to this matter even after the — ‘1946 Trav LR 683’, case was decided. If according to the learned Magistrate that dispute has been set at rest by reason of the dismissal of the review petition, he must find it as a matter of fact and then cancel the preliminary order. Of course, the mere fact that one party contends that there is still a dispute will be no reason for holding that there is a dispute, if, as a matter of fact, the dispute must be taken to have been settled by the decision of a competent civil court. If, on the other hand, the learned Magistrate finds that in spite of the dismissal of the review petition, there is still a dispute between the parties relating to the user of the churches in question which is likely to cause a breach of the peace, the proper thing to do will be to pass an order under S. 147 of the Code of Criminal Procedure. The learned Magistrate has not declared the right of the 1st counter-petitioner to officiate in the churches and has not prohibited the interference with the exercise of such right. The order, as it is, is likely to give rise to complications if, as a matter of fact, there is still dispute between the parties relating to the matter in controversy which is likely to cause a breach of the peace. From the affidavit filed in this court it is seen that there is dispute between the parties as to the person who is entitled to get the keys of the churches from the police.

13. For the above reasons I set aside the order of the learned First Class Magistrate and direct him to take the case back to his file and dispose it of according to law and in the light of the observations made above.

14. Revision allowed.

Kochitti Chacko v. Markose Kathanar, Joseph Kathanar Counter Petitioners.

Structured Summary of the Opinion — Revision in Misc. Case No. 1 of 1951 (Special First Class Magistrate's Court, Kottayam)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revision Petitioner's Arguments (petitioner who challenged the Magistrate's order)

Counter-petitioners' Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kochitti Chacko v. Markose Kathanar, Joseph Kathanar Counter Petitioners.

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