MATHEWS J. NEDUMPARA
304, Hari Chambers, 3rd Floor, 58-64, S.B.S. Road, Fort, Mumbai-400 001.
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Hon’ble Mr. Justice S. Manikumar
Chief Justice, High Court of Kerala
Hon’ble Mr. Devan Ramachandran
Judge, High Court of Kerala
May it please your Lordships,
Sub: Hearing of the Church case at serial no. 124, today, 5th October, 2021
- In our legal system, if a lawyer is falsely accused of improper conduct, or where a judge acts unfairly, and denies a fair opportunity for a lawyer to represent his case, the law provides to him no remedies at all. If a court makes unjust and untrue comments, in these days of “breaking news” is telecasted without least effort being made to ascertain the veracity of the same. As an outstation lawyer in Bombay and other parts of the country, when I raised my voice against injustice, ill treatment of lawyers and litigants, I was falsely implicated in contempt of court proceedings. The attempts to silence me, I took as an opportunity to campaign for the much needed reforms in judiciary, particularly of video recording of court proceedings, and the access of such records to litigants and lawyers, open selection of judges by inviting applications from the eligible candidates in substitution of the current system where judges appoint themselves, mostly their kith and kin, transfer of judges as a panacea for many a malaise in particular, the uncle judges syndrome, abolition of the system of judges designating lawyers as senior advocates which has led to the loss of independence of the bar and resulted in servility. When I was falsely implicated, nay, persecuted for nothing but daring to speak the truth, the words of Bal Gangadhar Tilak inscribed outside the Central court of the Bombay High Court, came to be of comfort, even inspiration to pursue my struggle against injustice, oppression and tyranny in judiciary.
“… I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than by my remaining free.”
- Ten years down, I could see those who opposed me tooth and nail, vying with each other to hijack the agendas of the campaign that I am heading, for instance video recording of court proceedings. In the not-so-far off future, my adversaries will be condemning the Collegium system of appointment of judges (which has become a synonym for nepotism) which they were all praises for during the time of the NJAC case and were fighting so vehemently to protect. I was the only person other than the Government who appeared to defend the NJAC. Even AG whose job was to defend the government failed to do so whole heartedly. I say all this because I consider every adversity to be an opportunity.
- I took up the brief of the Jacobite Christians because I realised that the root cause of the ongoing tussle was the judgements of the Supreme Court of 1958, 1995 and 2017, rendered against them in ignorance of the doctrine of res judicata. The constitution bench of the Supreme Court in 1958 erroneously held that the Churches are to be administered according to the 1934 constitution, failing to notice that such a declaration cannot be granted when not even a single church was on the party array. It is unbelievable that such an error occurred because the Supreme Court failed to notice the true meaning of the doctrine of res judicata. The SC held that the judgement in the Vattipanam case of 1928 is binding as res judicata in the Samudhayam suit, though cause of action was different and parties were different.
- The said fundamental error went unnoticed and further judgements of 1995 and K.S Varghese, 2017 were rendered based on the same. In K.S Varghese the bench of Justice Arun Mishra held that the 1934 Constitution upheld by the 1958 judgment will be binding on all churches. Justice Mishra went on to further hold that the judgement in K.S Varghese arising out of the suits of the Kollenchery, Varikoli and Mannathur churches will be binding on all the churches, even those who were not parties. The reason offered was that the judgment arises out of representative suits, and therefore, is a judgment in rem. Justice Mishra by his judgment of 2019 went on to hold that the church dispute has come to an end, there is no room for any further litigation, and that all churches will be governed by the 2017 judgment, because it arises out of a representative suit.
- Justice Arun Mishra seriously erred because a judgment does not become a judgment in rem merely because it arises out of a representative suit. For instance, a judgement in a suit between husband and wife for divorce, where divorce is granted is a judgment in rem, and where it is denied, it is a judgment in personam. The determinative factor is whether there is a change in title or status.
- In execution of the judgment in K.S Varghese, the Othrodox faction could capture the Kollenchery, Mannathur and Varikoli churches belonging to the Jacobite faction. The judgement in K.S Varghese was thus executed and nothing further remained. However, unfortunately, in the name of the judgment in K.S Varghese, the Orthodox faction proceeded to capture the churches of the Jacobite faction, obtaining orders for police protection from the Kerala High Court.
- It was at this juncture that I came into the picture and sought to point out the fundamental mistakes that unfortunately happened to be made. The contentions which I make are of pure jurisprudence, fundamentals. If I am wrong the Court need only record my contentions and state the reasons as to why the contentions are not tenable. However, I am faced with great hostility. The judges refuse to even record the contentions, let alone deal with it fairly (see Justice Devan Ramachandran’s judgment in R.F.A 570/2004 dated 2.6.2020). Had the Hon’ble judges recorded my contentions, which I believe are absolutely tenable for the Orthodox faction has not been able to offer any counter, for it is impossible for anyone to plead that the individual churches of the Jacobites would be bound by a judgment, be it the 1958, 2017 or 2019 judgement, where they were not parties at all. For the rule of res judicata to be applied the minimum conditions to be met are:
a) The parties ought to be the same
b) Cause action ought to be the same
c) The cause of action ought to have been adjudicated on merits
d) The parties ought to have been heard
- Few Jacobite Christians from different parts of the country approached me stating that those who are in charge of the conduct of the case of the Jacobite faction are acting in collusion with their opposite party, and therefore, what is going to be done is a match fixing, and that I should appear for them. Accordingly, I filed an application for intervention post haste, and sought to address the Court. Justice Devan Ramachandran was mistaken to believe that my appearance was to seek his recusal, and said repeatedly that he is not going to recuse, leaving me no option than to repeatedly reassure him that I had no such intention, and requested him to hear me.
- Reticence is a great virtue, and therefore, I refrain from making any comment, except to say that his Lordship had no patience and was interrupting me repeatedly making it difficult to get two sentences out before another interruption. But the unkindest cut of all was the absolutely false and incorrect charge his Lordship levelled against me, stating that I used the words “wretched court”, which I did not. And I repeatedly asserted that I did not. In spite of the repeated interruption and the near hostile treatment which was not entirely unanticipated, which again for reasons of reticence, I do not wish to elaborate, I was still completely, taken aback when such a false statement was made.
- The entire court proceedings are recorded. I told the Ld. Judge that if he were to watch video recordings which his lordship promised to do, he would realise that I had made no such statement. I would not have addressed this letter that I received a few calls stating that they came across a new clipping stating that I had used ‘improper language’ during the hearing. It is not that I believe that misreporting of this sort can have any consequence, I would not have even known of it if not for the calls of a few well-wishers. But what is at stake is the cause of justice, the sanctity of judicial proceedings.
As a lawyer, I know I can do nothing. There is no mechanism for redressal of the grievances of litigants and lawyers when unjustly treated. I address your Lordship only for the satisfaction that in the face of injustice I did not fail to speak.
With most respectful regards,
Mathews J Nedumpara
12 F A Wing
Narayan A Sawant Rd, Azad Nagar, Col aba, Mumbai, Maharashtra 400005