IN THE HIGH COURT OF KERALA AT ERNAKULAM RP.No. 153 of 2011(O) 1. V.J.KRISHNAN,S/O.JOGYA SHETTY,AGED 66, Petitioner 2. P.B.MANIKKALAL,S/O.BALU SHETTY,AGED 57, Vs 1. MANAGING COMMITTEE,ERATTAKULANGARA Respondent 2. K.R.RAMESHAN,PRESIDENT, 3. K.R.MOHANAN,VICE PRESIDENT, 4. K.R.DIVAKARA RAO,SECRETARY, 5. K.R.MOHANAN,JOINT SECRETARY, 6. T.B.RAJA RATNAM,.TREASURER, 7. K.P.AJITH KUMAR,EXECUTIVE COMMITTEE 8. K.R.PRAKASHAN,EXECUTIVE COMMITTEE 9. T.P.ARUNKUMAR,EXECUTIVE COMMITTEE 10. M.DC.CHANDRASEKHARAN,S/O.M.B.DASHARADHAN 11. T.N.RADHAKRISHNAN,EXECUTIVE COMMITTEE 12. T.B.BABU,EXECUTIVE COMMITTEE MEMBER, For Petitioner :SRI.C.CHANDRASEKHARAN For Respondent : No Appearance The Hon'ble MR. Justice [ENTITY] Dated :14/03/2011 O R D E R [ENTITY], J. [CASE NUMBER] in [CASE NUMBER] Dated this the 14th day of March, 2011 O R D E R
Respondents 1 and 2 in [CASE NUMBER] filed this Review Petition seeking to review the judgment dated 14.2.2011. As per the judgment, the Original Petition was allowed and the order challenged in the Original Petition was set aside. The Receiver was discharged. Certain directions were also issued in the judgment in the Original Petition.
2. The contention of the review petitioners is that the order passed by the court below was an appealable order under [SECTION] of the [ACT] and, therefore, the Original Petition should not have been entertained. Such a contention was not put forward at the time when the Original Petition was taken up for hearing and both parties argued the case in detail touching upon the merits of the case.
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3. Learned counsel appearing for respondents 1 to 10 in the Review Petition, who are the petitioners in the Original Petition, contended that the Original Petition was maintainable and, therefore, the judgment is not liable to be reviewed.
4. The common order passed in [CASE NUMBER] was challenged in the Original Petition. [CASE NUMBER] was filed by defendants 1 to 7 and 10 to 12 (petitioners in the Original Petition) under [SECTION] read with [SECTION] of the [ACT] to discharge the Receiver appointed by the Court. [CASE NUMBER] was filed by the plaintiffs under [SECTION] of the [ACT] for a direction to the Receiver to continue in office till the disposal of the suit.
5. The suit was filed for a permanent prohibitory injunction restraining defendants 2 to 12 from convening the committee and conducting the administration of Erattakulangara Bhagavathy Temple and for a declaration that the first defendant Managing Committee elected on 28.9.2008 became functus officio. Defendants 1 to 7 and 10 to 12 preferred a counter claim for a decree to conduct election of the Managing Committee of the [CASE NUMBER] IN [CASE NUMBER] 3
Temple under the supervision of an Advocate Commissioner deputed by the Court. An Interlocutory Application was also filed by the contesting defendants to appoint a Commissioner for conducting the election. That application was allowed unopposed. A Commissioner was appointed and election was held.
6. The plaintiffs filed [CASE NUMBER] for appointing a Receiver. Defendants 8 and 9 filed [CASE NUMBER] to set aside the Commissioner's report. The plaintiffs also filed [CASE NUMBER] to set aside the Commissioner's report as well as the election. On 7.4.2010, the court below passed an order, by which, a Receiver was appointed as an interim arrangement till the disposal of [CASE NUMBER]. Later, [CASE NUMBER] were dismissed by the court below on 13.8.2010. Though the order dated 13.8.2010 was challenged by the plaintiffs and defendants 8 and 9 in two Writ Petitions, the Writ Petitions were later withdrawn.
7. After the dismissal of [CASE NUMBER], the plaintiffs filed [CASE NUMBER] to direct the Receiver to continue and the contesting defendants filed [CASE NUMBER] to discharge the Receiver. The ground on which the Receiver was [CASE NUMBER] IN [CASE NUMBER] 4
appointed was not available after the dismissal of the application to set aside the Commissioner's report as well as the election. The contesting defendants sought for permission to the newly elected Committee members to take charge. The court below rejected that prayer on the ground that the said relief can be granted only on allowing the counter claim. That view was found to be incorrect in the judgment sought to be reviewed. As mentioned above, the application from which the Original Petition arose was not really an application to appoint a Receiver, but for a direction to continue the Receivership. The contesting defendants prayed for discharge of the Receiver on the ground that the applications filed to set aside the Commissioner's report and the election were subsequently dismissed and since the Receiver was appointed only as a stop gap arrangement.
8. Sri[ENTITY], the learned counsel appearing for the review petitioner submitted that there was absolute lack of jurisdiction to interfere with the order under [SECTION] of the [ACT], as an alternative remedy of appeal was available to the petitioners in the Original Petition. Sri[ENTITY], the learned counsel appearing for [CASE NUMBER] IN [CASE NUMBER] 5
respondents 1 to 10 in the Review Petition submitted that, even assuming that an alternative remedy was available, in the peculiar facts and circumstances of the case, the High Court rightly exercised the jurisdiction under [SECTION] of the [ACT]. He also raised a contention that the availability of an alternative remedy and the bar for entertaining the Original Petition was not raised by the review petitioners in the Original Petition.
9. In [PRECEDENT], it was held that a party whose remedy by way of an appeal under the Statute is barred by limitation, would not be entitled to invoke the extraordinary jurisdiction under [SECTION] of the [ACT]. In John V.O. v. M/s.Catholic Syrian Bank Ltd. and others (2009(1) KHC 337 (DB , the Division Bench held that when an efficacious remedy is provided under the [ACT], a Writ Petition under [SECTION] could not be filed as an appeal in disguise. However, it was held that at the same time, jurisdiction under [SECTION] cannot be limited or fettered even by any Act of the legislature and the supervisory jurisdiction is very wide and can be used to meet the ends of justice.
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10. In Shalini Shyam Shetty v. Rajendra Shankar Patil 2010) 8 SCC 329), the Supreme Court held thus:
"On an analysis of the aforesaid decisions of this Court, following principles on the exercise of High Court's jurisdiction under [SECTION] of the [ACT] may be formulated:
(a) A petition under [SECTION] of the [ACT] is different from a petition under [SECTION]. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under [SECTION] cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under [SECTION] and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under [SECTION] of the [ACT], interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been [CASE NUMBER] IN [CASE NUMBER] 7
provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the [ACT] Bench of this Court in [ENTITY] and the principles in [ENTITY] have been repeatedly followed by subsequent [ACT] Benches and various other decisions of this Court.
(e) According to the ratio in [ENTITY], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent [CASE NUMBER] IN [CASE NUMBER] 8
perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under [SECTION] cannot be curtailed by any statute.
11. Sri.[ENTITY] submitted that a distinction is to be drawn between appointment of Receiver and discharge of Receiver. He submitted that [SECTION] does not deal with the case of discharge of Receiver. It is submitted that [SECTION] deals with appointment of Receiver which includes removal also. Discharge of Receiver is a different aspect. The counsel referred to the passage in [ENTITY]'s The Law and Practice Relating to Receivers. In paragraph 1164 thereof, it is stated as follows:
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"1164. Discharge and Removal, meaning of Distinction. "A distinction indicated by the terms themselves is to be drawn between the removal and the discharge of a Receiver. The discharge of the Receiver is in general, termination of the receivership, while the removal of the receiver upon his own motion or for the case and the substitution of another person or persons in his stead, is a proceeding not inconsistent with the continuation of the receivership. The effect of the discharge of a receiver is to terminate the receivership proceedings; the removal of the receiver affects only the person. A receiver is removed when it is made to appear that the interest of the parties concerned require it, and a Receiver is discharged when the objects sought to be obtained by his appointment have been accomplished. In the one case the property in litigation continues in the possession of the Court, subject to the final decree, while in the other it passes pursuant to the decree to the party entitled. The term "remove" as applied to a Receiver, means simply a change in the personnel of the receivership, which continues unaffected. The effect of removal is only to substitute one person for another in the office. The cause of the 'removal' of a Receiver is some personal objection to him. To 'vacate' the appointment is to set aside the order of appointment because improvidently granted, the [CASE NUMBER] IN [CASE NUMBER] 10
motion for which is based on the circumstances and conditions attending the appointment. The 'discharge' of a receiver relates to the termination of the receivership, as is asked and ordered for the reason that, because, of the state of the suit, there is no longer any necessity for continuing the receiver. The terms 'remove' 'vacate' and 'discharge' are frequently used indiscriminately; but from the context, the sense in which they are used is readily understood."
12. It is also relevant to note that [CASE NUMBER] filed by the plaintiffs for a direction to continue the Receivership was filed under [SECTION] of the [ACT] and not under [SECTION]. It is true that quoting a wrong provision of law does not matter much and it is necessary to look into the real provision under which the order was passed by the court. In the present case, the appointment of Receiver was not on a regular application filed under [SECTION], but only as a temporary measure and as a stop gap arrangement till the disposal of the application to set aside the Commissioner's report and to set aside the election. Taking into account the submission of the plaintiffs and the supporting defendants that till the question of setting aside the election was considered it was not proper to allow the elected members of the [CASE NUMBER] IN [CASE NUMBER] 11
committee to take charge, a Receiver was appointed purely on a temporary basis. In fact, such appointment should come to an end on the dismissal of the application to set aside the Commissioner's report and to set aside the election. However, the court below took a different view that only after the counter claim is allowed, the elected members should be allowed to assume office. On the basis of such a reasoning, the Receiver was allowed to continue and the application to discharge him was dismissed. Therefore, I do not think that the contesting defendants should have filed an appeal under [SECTION], particularly when the application filed by the plaintiffs was under [SECTION] of the [ACT].
13. Both the parties in the Original Petition argued the matter in great detail and a detailed judgment was passed. All the relevant aspects of the case were considered. Thereafter, if the review petitioners are allowed to raise a contention that the Original Petition should have been dismissed on the ground that an appeal was maintainable under [SECTION] against the order of the court below and if that contention is accepted, it would result in manifest injustice. It cannot be said that the order passed in the Original Petition is wholly without jurisdiction.
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14. Sri.[ENTITY] also raised a contention that the review petitioners are also benefited by the judgment sought to be reviewed. Accepting the contention of the Review Petitioners, a direction was issued in the judgment to the second petitioner in the Original Petition not to act as the President of the Committee till the suit is over. Directions were also issued with regard to the functioning of the Committee, submission of accounts etc. All these directions were issued taking note of the submissions made by the review petitioners. At this stage, they cannot be allowed to turn round and contend that the Original Petition was not maintainable.
For the aforesaid reasons, the Review Petition is dismissed.
([ENTITY]) Judge ahz/