Kerala High Court Declines To Grant Leave To File Appeal Against Single Judge's Interim Order In Church Dispute

The Kerala High Court recently declined to grant leave to an applicant to file an appeal against an order of a Single Judge in the Church dispute. 

The applicant had also argued that the Single Judge should have recused from hearing or issuing orders in the matter. 

A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha while dismissing the interlocutory application, observed:

"...we are of the view that recusal is a matter for the Judge concerned to decide, for in the context of an appellate court deciding the correctness of an order, it does not matter as to who decided it."

A common interim order was passed by the Single Judge in a batch of writ petitions seeking police aid for a few Parish Churches under the Malankara Orthodox Syrian Church, due to a dispute between two factions, the Orthodox and the Patriarch.

The petitioner herein was not a party to the suit in which the impugned order was passed but sought an application for leave since he claimed to be aggrieved by the said order. 

His case is that the Judge who passed the impugned interim order ought to have recused himself from dealing with the writ petitions, as he was disqualified from doing so.  

It was argued that even if the Orthodox faction who instituted the petition had any right against the Patriarch faction, the same could only be enforced through a properly instituted suit and not a writ petition.

On this ground, the counsel submitted that the said writ petition was liable to be dismissed in limine and the impugned interim order is, therefore, unsustainable in law. 

However, the Court noted that through the impugned interim order, the Judge has merely directed the Superintendents of Police and the officers under their command to ensure that the areas where the Parish Churches are situated are protected from any violation of law and order by any person and that no attempt to breach peace or commit violence is tolerated or permitted from any person on either side of the divide and that the properties and assets of the churches are protected.

When asked how the petitioner was aggrieved by this order, it was submitted that the various observations made by the Single Judge to justify the aforesaid order were against the interest of the petitioner. 

Upon noting the above facts, the Court observed that the only feasible option was for the petitioner to implead himself in the ongoing writ petition rather than filing an apeal:

"As noted, the petitioner is not a party to the writ petition from which the appeal arises. Insofar as the writ petition is still pending, we do not find any reason to entertain the appeal preferred against the interim order passed in the writ petition, especially since the petitioner is not in any manner affected by the said interim order, and the petitioner is entitled to canvass the correctness of the alleged adverse observations made by the learned Single Judge in the impugned order by impleading himself in the writ petition."

Regarding the argument that the Single Judge ought to have recused from deciding the case, the Court held that recusal was a matter to be decided by the concerned Judge and not by an appellate court.

Accordingly, the application was rejected with a clarification that such rejection will not preclude the petitioner from seeking impleadment in the writ petition and seeking orders vacating or modifying the impugned interim order.

Advocates Mathews J Nedumpara, Maria Nedumpara and Abdul Jabbarudeen M. appeared for the applicant. 

Case Title: Manu Kurian v. St. Mary's Orthodox Syrian Church & Ors.

Click Here To Read/Download The Order