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IN THE COURT OF THE IVTH ADDITIONAL DISTRICT & SESSIONS JUDGE, DAKSHINA
KANNADA, MANGALORE
AND
61.Elizabeth Catelino,
aged about 43 years,
D/o Thomas Catelino,
R/at Padau Village, D. No.11-235,
Kakkebettu, Kulshekara,
Mangalore – 575005. NOT PARTY RESPONDENT-61 RESPONDENT-61
aged 53 years,
S/o. John Abhraham D’Souza,
R/at Sister Compound, Padil Post,
Alape Village, Mangalore – 575007. NOT PARTY RESPONDENT-73 RESPONDENT-73
aged 51 years,
S/o Ignatious Lobo,
R/at S.B. Nagar, Rd.No. 1,
Saripalla House, Padil Post,
Alape Ward, Mangalore - 575007. NOT PARTY RESPONDENT-81 RESPONDENT-81
R/at Subashnagar,
Pandeshwar, Mangalore - 1. NOT PARTY RESPONDENT-237 RESPONDENT-237
52 R.A.No.30/2011
aged 37 years,
S/o Francis D’Souza,
R/at Vamadapadav - 574324. NOT PARTY RESPONDENT-507 RESPONDENT-507
aged 43 years,
S/o A.J. Gonsalves,
R/at Door No.7/3/452, Boloor,
Jarandaya Temple Road,
Mangalore - 575006. NOT PARTY RESPONDENT-566 RESPONDENT-566
aged 30 years,
R/at Ladyhill Convent, Urwa,
Ashoknagar, Mangalore - 575006. NOT PARTY RESPONDENT-605 RESPONDENT-605
aged 46 years,
S/o B. Venedict Maritis,
R/at ‘Jeeva’, Spring Field, Chilimbi Urwa,
Mangalore - 575006. NOT PARTY RESPONDENT-654 RESPONDENT-654
Sirlapadpu House,
Kulashekar Post,
Mangalore. PLAINTIFF APPELLANT-2 RESPONDENT-670
aged 49 years,
S/o Late Lawrence D’Souza,
R/at “Astral”, Church Compound,
Kulshekar Post, Mangalore – 575 005. PLAINTIFF APPELLANT-10 RESPONDENT -678
695. P.B.D’Sa,
aged about 69 years,
S/o J.F.M. D’sa,
Parishioner of St. Vincent Ferrar Church, Valencia,
Educationist by Profession, ‘Pauline’,
Muller Road, Valencia,
Mangalore – 2. PLAINTIFF APPELLANT-27 RESPONDENT -695
I. The Appellant’s address for service of summons, notices etc., from this Hon’ble Court
is as stated supra in the cause title and also in care of his counsel Ajith Anand Shetty,
SA Partners, Advocates, No.71, 66th Cross, Rajajinagar 5th Block, Bangalore-560 010.
II. The Respondent’s addresses for similar purpose are as reflected above in the cause
title.
III. That being aggrieved by the order dated 23 rd August, 2017, passed by the Hon’ble
IVth Additional District & Sessions Judge, Dakshina Kannada, Mangalore, in Regular
Appeal No.30/2011, in effect confirming the Order/ Judgment and Decree dated
11thFebruary, 2011, passed by the learned II Additional Civil Judge (Sr.Dvn), at
Mangalore in O.S No.151 of 2010, the Appellant seeks leave of this Hon’ble Court to
present this regular second appeal on the facts and grounds narrated hereunder and to be
urged at the time of hearing;
2. The Appellant, having gained access to two sets of copies of such impugned
rules/bye-laws , addressed to separate representations to the 1 st Respondent
herein, on 20/11/2010 and on 01/02/2010, voicing its concerns and objections
over the impugned rules/ bye-laws and has also south for suitable amendments to
the same. This has however fell on deaf ears of the 1 st Respondent. That in the
meanwhile, Respondents __ to __ herein, who had at a later point in time joined
the Appellant as co-PLAINTIFFfs, filed their nominations to be elected as Ward
Representatives before the Parish Priest of Holy Cross Church, Cordel,
Kulshekara, Mangalore, on the 14th day of November, 2010 as per provisions of
the previous constitution of governance, with elections scheduled to be held on
the 05th day of December, 2010. Of these individuals, Respondents __ and __
remained unopposed in their respective wards. Overlooking these facts,
nominations of Respondents __ to __ were rejected en-mass, for the sole reason
that they were PLAINTIFFfs in O.S No.130 of 2009, filed against the Parish
Priest and others. This decision was apparently taken under the new set of rules/
bye-laws, with an intent to intimidate Parishioners, who were otherwise
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3. The 1st Respondent entered appearance and proceeded to file an application under
Order 7 Rule 11, read with Section 151 of the Code of Civil Procedure, with a
prayer to reject the plaint, primarily on the ground that the Church and its
activities were governed solely by the “Code of Canon Laws” and that such
activities could be subjected to the scrutiny of “Ecclesiastical Courts” alone and
that the Civil Court had no jurisdiction to try such suit and grant reliefs prayed for
therein. The said application was allowed by the Hon’ble Court of first instance,
vide its order dated 11th February, 2011, culminating in a decree of like date and
as such, the suit came to be rejected as not being maintainable. The said order/
Judgment and Decree was questioned by the Appellant herein by way of a regular
appeal before the Hon’ble Lower Appellate Court. While the Hon’ble Lower
Appellate Court was pleased to reverse the findings of the Hon’ble Trial Court as
regards maintainability of the suit, it was erroneously noted that the ‘Constitution
of Governance’ dated 01st November, 2010 was valid for a period of three (3)
years alone and since seven years had elapsed from the date of filing of the suit,
the appeal had been rendered infructuous and as such, the Hon’ble Court
proceeded to reject the appeal has having spent itself out.
V. GROUNDS
(a) That the impugned Judgment and Decree is in clear contravention of settled positions
of law and has been passed in an apparent case of misinterpretation of pleadings and
material evidence placed on record. Hence the same deserves to be set aside.
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(b) The Hon’ble First Appellate Court has rightly held that since there were no
‘Ecclesiastical Courts’ in India, the Jurisdictional Civil Court did have jurisdiction to try
the present suit. The said finding has attained finality as none of the Defendants have
questioned the same. However, the Hon’ble First Appellate Court misdirected itself
while observing that the impugned rules/ bye-laws had been rendered redundant owing
to efflux of time. The Hon’ble Court below has failed to appreciate the fact that a set of
rules/bye-laws, once incorporated in the Constitution of Governance, were valid and
applicable until unless they are expressly removed by way of a fresh amendment.
Though the changed ‘Constitution of Governance’ was stated to have a shelf life of three
(3) years, the same would remain unchanged if a new amendment is not brought about to
replace it. The fact remains that the impugned rules/ bye-laws still find place in the
Constitution of Governance and as such, the grievance cited by the PLAINTIFFfs does
exist even to this date and the cause of action does survive.
(c) The Hon’ble First Appellate Court was required to have atleast conducted an enquiry
as to whether an amendment was indeed brought about and whether the particular set of
rules/bye-laws, which were questioned, were diluted. Even if the Hon’ble Court had
expressed that such doubt had lingered, the Appellant would have had the opportunity of
having proved the fact that the impugned rules/ bye-laws continued to exist in the
prevailing Constitution of Governance. Having not done so, the Hon’ble First Appellate
Court had deprived the Appellant, of an opportunity to clarify the said issue. This would
also be a reason why the order impugned deserves to be set aside.
(d) That viewed from any angle, the impugned Judgment and Decree cannot be
maintainable and deserves to be set aside. That in light of the foregoing discussions, the
following question/s of law would arise for the kind consideration of this Hon’ble Court;
1. Whether the lower Appellate Court was justified in rejecting the appeal on the
ground that the appeal had outlived the impugned set of rules/ bye-laws, without
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enquiring as to whether the impugned rules/ bye-laws had been removed from
contemporary Constitution of Governance?
2. Whether the lower Appellate Court could have rejected the appeal on grounds of
the same having been rendered infructuous, without even framing a point on that
count?
VII. LIMITATION
That the appeal has been preferred beyond the period of limitation as envisaged under
the C.P.C and hence, a separate application has been preferred seeking condonation of
the said delay.
VIII. That the Appellant has not preferred any other appeal on the very same cause of
action.
IX. VALUATION
The suit was valued at Rs.______/- and a Court fee of Rs.___/- was paid under section
___ of the ‘Karnataka Court Fee and Suits Valuation Act’. While applying the same
valuation, a Court Fee of Rs.___/- is paid on the appeal memorandum before the lower
appellate Court. Similar Court fee of Rs.____/- has been paid on the present
memorandum of appeal as per Section ___ of the K.C.F.S.V Act..
PRAYER
WHEREFORE, the Appellant prays that this Hon’ble Court be pleased to;
(i) call for records;
(ii) to set aside the order dated 23 rd August, 2017, passed by the Hon’ble IVth
Additional District & Sessions Judge, Dakshina Kannada, Mangalore, in
Regular Appeal No.30/2011 to the limited extent of the finding that the appeal
had been rendered infructuous;
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(iii) In effect, to set aside the Order/ Judgment and Decree dated 11 th February,
2011, passed by the learned II Additional Civil Judge (Sr.Dvn), at Mangalore
in O.S No.151 of 2010 and restore such suit to its original file,in the interest of
justice and equity.
Bangalore
AND
That for reasons stated in the accompanying affidavit, the Appellant prays that this
Hon’ble Court be pleased to condone the delay of an approximate _____ days in
presenting this memorandum of appeal as against the order dated23 rd August, 2017,
passed by the Hon’ble IVth Additional District & Sessions Judge, Dakshina Kannada,
Mangalore, in Regular Appeal No.30/2011, in the interest of justice and equity.
Bangalore
AND
AFFIDAVIT
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I state and submit that I am the authorized signatory of the Appellant herein and I am
conversant with the facts and circumstances of the present case. Hence this affidavit.
I state and submit that the contents of the appeal memorandum may kindly be read as
part and parcel of this affidavit without prejudice to each other.
I state and submit that the 1 st Respondent and other contesting Respondents have always
tried to place road blocks in our attempt to seek justice. To begin with, the impugned set
of rules/ bye-laws were kept out of public domain for quite some time and were being
selectively implemented, so as to prevent any individual from questioning the same.
I state and submit that when we eventually realised what was happening, these
contesting Respondents had made it extremely difficult for any person to gain access to
such set of rules/ bye-laws. However, we were successful in getting access to such rules/
bye-laws with the assistance of some members in the Committee, who answer to their
conscience and who have realised that what is being done is of extreme prejudice to the
Church and its believers.
I state and submit that the order passed by the Hon’ble First Appellate Court came as a
complete surprise for us as at no point in time was any question raised as to whether the
impugned rules/ bye-laws were still part of contemporary Constitution of Governance.
I state and submit that having gotten over such shock, we have immediately taken on the
task of verifying as to whether the impugned set of rules/ bye-laws continued to part of
the current Constitution of Governance. We have now found that they continue to find
place in our existing Constitution of Governance. As such, our cause of action survives
to this day.
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I state and submit that such process did take a considerable period of time , owing to the
secretive manner in which the 1st Respondent is running the Church administration.
I state and submit that the delay in filing of the present appeal is purely owing to bona-
fide reasons stated supra and is definitely not intentional as the Appellant does not stand
to gain in any manner from such a delay.
I state and submit that in the event of the delay being condoned, no prejudice would be
caused to the other side, while anything to the contrary would prove fatal for the
legitimate legal rights of scores of believers.
I therefore pray that this Hon’ble Court be pleased to allow the accompanying
application and thereby condone the delay involved in filing the present appeal.
Bangalore
Dated:
Identified by me:
ADVOCATE
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