IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 31508 of 2008(A) -------------------------- OS.9/2007 of MUNI-MAGI.COURT,PERINTHALMANNA .................... PETITIONER(S) (RESPONDENTS 1 AND 2): --------------- 1. GURUVAYUR DEVASWOM, REP. BY ITS ADMIISTRATOR, GURUVAYUR.P.O, THRISSUR DISTRICT. 2. CHAIRMAN, GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR.P.O, THRISSUR DISTRICT. BY ADV. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA RESPONDENT(S)/(PLAINTIFF AND DEFENDANTS 3 AND 4): --------------- 1. P.V. SASIDHARAN, S/O. LATE KRISHNANKUTTY, PUTHENVEETTIL HOUSE, MANATHUMANGALAM DESOM, PERINTHALMANNA.P.O, PERINTHALMANNA TALUK. 2. POONTHANAM SMARAK COMMITTEE, REP. BY PRESIDENT, POONTHAVANAM.P.O, PATTIKKAD VIA, MALAPPURAM DISTRICT. 3. POONTHANAM ILLOM KSHETHRAM SAMRAKSHANA SAMITHI, REP. BY ITS PRESIDENT, POONTHAVANAM.P.O, PATTIKAD VIA, MALAPPURAM DISTRICT. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.SAJU.S.A FOR R1 SRI.N.MANOJ KUMAR FOR R2 SMT.JAYASREE MANOJ FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: WPC.31508/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.NO.61 OF 2007 IN O.S.NO.9 OF 2007. EXT.P2: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.61 OF 2007 DATED 20.3.2007. EXT.P3: COPY OF THE STATEMENT OF UNDERTAKING DATED 27.3.2007. EXT.P4: COPY OF THE STATEMENT DATED 13.8.2007 IN O.S.NO.9 OF 2007. EXT.P5: COPY OF THE STATEMENT DATED 18.2.2008 IN O.S.NO.9 OF 2007. EXT.P6: COPY OF THE APPLICATION, I.A.NO.188 OF 2008 IN O.S.NO.9 OF 2007. EXT.P7: COPY OF THE ORDER DATED 21.6.2008 IN I.A.NO.188 OF 2008 IN O.S.NO.9 OF 2007. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.31508 OF 2008 (A) ----------------------------------- Dated this the 28th day of August, 2009 J U D G M E N T The 1st and 2nd respondents in O.S.No.9 of 2007 on the file of the Munsiff's Magistrate Court, Perinthalmanna have filed this writ petition to issue a writ, order or direction to the court below to consider the maintainability of the suit as a preliminary issue before the trial of the case, quashing Ext.P7 order passed by that court. Ext.P7 order was passed in an interlocutory application moved by these petitioners as I.A.No.188 of 2008 requesting the court to consider the maintainability of the suit as a preliminary issue, which after hearing both sides, was dismissed by order dated 21.6.2008. 2. The short facts necessary for disposal of the writ petition may be summed up thus: The above suit O.S.No.9 of 2007 was instituted by the 1st respondent, who claimed to be an ardent devotee of Lord Guruvayurappan, challenging the authority of the 3rd respondent to organise the Poonthanam Sahityolsavam in the plaint property, Poonthanam Illom and WPC.31508/08 2 its premises, and also questioning the permission given to that committee to organise such a function by the 1st and 2nd defendants, the petitioners in the writ petition. The controversy involved in the suit related to the conducting of Poonthanam Sahityolsavam by the 3rd defendant, the committee, in the plaint property as recognised by the 1st and 2nd defendants, Guruvayur Devaswom and its Chairman. 3. After the presentation of the suit, conflicting and divergent stand was taken by the 1st and 2nd defendants to the suit claim. With the suit, the plaintiff has filed an application for interim injunction to restrain the 1st and 2nd defendants from transferring the right to conduct and organise Sahityolsavam in the plaint property to the 3rd defendant or any other person, otherwise than organising of such functions directly by the Guruvayur Devaswom. Ext.P1 is the copy of the application. The 1st respondent filed objections to that application, in which, among other contentions, the maintainability of the suit and the application was also questioned contending that it is barred by the Guruvayur Dewaswom Act and Rules. Ext.P2 is the copy of that objection. WPC.31508/08 3 While Ext.P1 application for injunction was pending consideration, the 1st defendant, Guruvayur Dewaswom filed a statement of undertaking before the court that the Sahityolsavam and all functions connected with Poonthanam Illom will be exclusively conducted by the Dewaswom directly. Recording that statement of undertaking, the 1st defendant requested for closing the further proceedings in the interlocutory application. In the statement of undertaking, it was further stated that the Guruvayur Dewaswom Managing Committee, after deliberation, took the decision to conduct the festivals in Poonthanam Illom directly to secure communal harmony and also to respect the sentiments of the Poonthanam devotees. Ext.P3 is the copy of that statement of undertaking. Evidently, in view of the undertaking given, further proceedings in Ext.P1 interlocutory application for injunction were not pursued. Subsequently, the counsel appearing for the 1st and 2nd defendants filed a statement before the court requesting for disposing the suit on the basis of the statement furnished to the interlocutory application for injunction stating that the defendants had no further statement to the suit claim. However, later the defendants WPC.31508/08 4 filed a written statement with a petition to receive that statement, resisting the suit claim raising various contentions including the challenge against the maintainability of the suit. While the acceptance of the written statement, which was filed beyond the time fixed, was pending enquiry, the defendants 1 and 2 filed a joint statement stating that the contentions taken in the written statement were against the instructions given by the Guruvayur Dewaswom, and as such, they were not willing to own the contradictory contentions of the written statement which were against the statement earlier made to the I.A. for injunction. Ext.P5 is that joint statement by defendants 1 and 2. In Ext.P5 statement, these defendants stating that they are withdrawing the contentions of the written statement, requested for decreeing the suit. Again, defendants 1 and 2 along with an affidavit sworn to by the 2nd defendant, Chairman of the Guruvayoor Dewaswom Committee filed another application reiterating the contentions in their written statement challenging the maintainability of the suit and resisting the suit claim on various grounds, requested the court to formulate a preliminary issue as to the maintainability of the suit before WPC.31508/08 5 proceeding with the trial of the case. Ext.P6 is the copy of that application. The learned Munsiff, after hearing both sides dismissed that application vide Ext.P7 order. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 4. I heard the counsel on both sides. The learned counsel for the petitioners inviting my attention to the Guruvayur Dewaswom Act, 1978 contended that by virtue of Section 29 of that Act, no suit or proceedings will lie against the Dewaswom and there is an ouster of the jurisdiction of the civil Court in entertaining a suit as involved in the present case. So much so, whatever be the stand of the defendants with respect to the interlocutory application for injunction by the plaintiff and also with regard to the written statement filed resisting the suit claim, but not pursued later as the petition filed to receive such written statement was later not pressed upon, according to the learned counsel, the defendants can seek for framing of the preliminary issue as regards the jurisdiction of the court to entertain the suit. Settling of WPC.31508/08 6 issues need not be on the basis of the contentions taken in the written statement, but, on other materials also under Order 14 Rule 3, 4 and 5 of the Code of Civil Procedure, submits the counsel, placing reliance on S.Kalimuthu v. M.Kanji (1993 (2) KLJ 909). Reference was also made to the decision rendered by this Court in Krishnan v. Guruvayur Dewaswom Managing Committee (1979 KLT 350 (F.B.)) and Narayanan Namboodiri and others v. State of Kerala and others (1985 KLT 629 (F.B.)), both dealing with the Guruvayur Dewaswom Act, the former with reference to Guruvayur Dewaswom Act, 1971, and the latter with reference to Guruyaur Dewaswom Act, 1978, to buttress the proposition that there is a judicial recognition by this Court as to the ouster of the jurisdiction of the civil court in respect of any matter covered under Section 29 of the Guruvayur Dewaswom Act, 1978. The counsel for the 3rd respondent supported the stand canvassed by the learned counsel for the petitioners as above. On the otherhand, the learned counsel appearing for the 1st respondent contended that the stand taken by the 1st and 2nd defendants challenging the maintainability of the suit claim after not pressing the petition WPC.31508/08 7 filed to receive the written statement in which a similar contention was taken and also after requesting the court to decree the suit in terms of the plaint by filing a statement, is unworthy of any merit and deserves outright rejection. It is further contended by the counsel that there is no explicit ouster of the civil court's jurisdiction as was canvassed by the learned counsel for the petitioners under Section 29 of the Guruvayur Dewaswom Act, 1978. The learned counsel further submitted that Ext.P7 order passed by the court below in the given facts of the case does not warrant any interference by this Court. 5. The citadel of the challenge pressed into service to assail Ext.P7 order contending that the suit is barred by the provisions of the Guruvayur Dewaswom Act and Rules is based on the statement made by the 1st respondent in Ext.P2 in answer to Ext.P1 interlocutory application, wherein, among other contentions, in paragraph 2, it has been stated that “the I.A. as well as the suit itself are against the provisions contained in the Guruvayur Dewaswom Act and Rules”. No final orders have been passed on Ext.P1 application, and so WPC.31508/08 8 much so, Ext.P2 counter statement has still relevance and the statement made thereunder questioning the jurisdiction of the court to entertain the suit constitute material as contemplated under Order 14 Rules 3, 4 and 5 of the CPC, is the argument of the learned counsel that Ext.P6 application by the defendants for framing a preliminary issue on the question of jurisdiction has merit, and it is entertainable. I am afraid, whatever be the challenges raised in Ext.P2 statement questioning the jurisdiction of the suit, it cannot have any significance or relevance when the defendants have not only filed an undertaking that the Poonthanam Sahityolsavam will be conducted directly by the Dewaswom with their request to the court to close the proceedings in that I.A. Obviously, on Ext.P3 undertaking given by the 1st respondent Guruvayur Dewaswom, no further orders on Ext.P1 I.A. moved by the plaintiff was warranted, and, whatever objections taken under Ext.P2 by the Dewaswom against that I.A. no longer survived for consideration. Of course, Ext.P2 objection to Ext.P1 I.A. formed part of the records, but, does it constitute a material from which an issue can be framed as under Order 14 Rule 3 of the CPC, is the question emerging for consideration. That WPC.31508/08 9 question cannot be considered ignoring what transpired during the course of the suit from time to time. Objections to Ext.P1 application by way of Ext.P2 counter were not only not pressed, but, practically withdrawn under Ext.P3 statement. After presenting a written statement raising contentions disputing the suit claim seeking its acceptance with a petition condoning the delay in filing that statement, the defendants 1 and 2 filed a joint statement dated 18.2.2008 stating that the contentions taken in the written statement were against the instructions given by the Guruvayur Dewaswom, and the defendants are not willing to own such contentions which were contradictory to the stand taken to Ext.P1 application. Obviously, Ext.P3 statement withdrawing the objection in Ext.P2 counter was referred in the above joint statement when these defendants stated that the contentions taken in the written statement were contradictory to the stand taken by them to Ext.P1 application. Ext.P5 is the copy of the joint statement so filed by the defendants, in which, it is seen, these defendants not only sought for withdrawal of the contentions of the written statement, but, wanted the court to decree the suit taking note of the withdrawal of their WPC.31508/08 10 contentions. Ext.P5 would further disclose that with the seal of the Guruvayur Dewaswom Managing Committee, the 1st defendant had subscribed his signature followed by the Chairman of the Dewaswom subscribing his signature as the 2nd defendant in the suit. Petition filed to receive the written statement on the basis of Ext.P5 statement, it is not disputed, was dismissed by the court, with the result, there is no written statement from those defendants to the suit. Repudiating Ext.P3 statement filed by the 1st defendant and joint statement filed by both these defendants as Exts.P4 and P5, referred to earlier, withdrawing whatever contentions these defendants had to the suit claim and after making a request to the court to decree the suit, these defendants filed Ext.P6 application supporting by an affidavit by the 2nd defendant, Chairman of the Guruvayur Dewaswom Managing Committee reiterating the contentions canvassed in their written statement challenging the maintainability of the suit and requested the court to consider its jurisdiction to entertain the suit. Evidently, so far as this statutory authority, Guruvayur Dewaswom, 1st defendant and its Chairman, the 2nd defendant are concerned, consistency is not a virtue, as for them WPC.31508/08 11 undertaking given and representations made before a court of law have little value, liable to be ignored and always open to alteration. Taking divergent and conflicting stand on an issue may be a virtue for this statutory authority, Dewaswom and its Chairman, but, it cannot be countenanced nor approved by a court of law. The audacity of the 2nd defendant to file an affidavit in respect of Ext.P6 application after he had filed a joint statement with the 1st defendant withdrawing whatever contentions to the suit requesting the court to pass a decree in terms of the suit is only to be deprecated. There is no merit in the argument of the learned counsel for the petitioner that the objection raised in Ext.P2 statement raising a challenge as to the jurisdiction of the court that the suit is barred under the Guruvayur Dewaswom Act is a material from which a preliminary issue can be raised as regards the jurisdiction of the court to entertain the suit. What are the materials from which an issue can be raised is covered by Order 14 Rule 3 of the CPC. The materials relied by the counsel no longer survived for consideration after Ext.P2 objection were not pressed upon. Further, the defendants themselves requested for decreeing the suit in terms of the plaint not pressing the WPC.31508/08 12 petition filed with their written statement resulting in discarding the written statement presented as well. Reference made to the decision in S.Kalimuthu v. M.Kanji (1993 (2) KLJ 909) by the learned counsel for the petitioner has no significance or value on the question posed for consideration in the petition. There is also no merit in the argument that under Section 29 of the Guruvayur Dewaswom Act, 1978, there is a complete ouster of the jurisdiction of the civil court to entertain any suit or proceedings in relation to Guruvayur Dewaswom. That section only provides for protection of action taken in good faith by the Government, Dewaswom and authorities referred to, but, any act which is not taken in good faith and tainted in mala fide and violation of the Act and rules, needless to point out, can be questioned by way of a suit before a civil court. That is all the more clear where no alternative efficacious forum is provided by the statute to challenge a mala fide act in violation of the statute, if so committed by the Government or the Commissioner or the committee of any member of the Dewaswom Committee. In the decision, Krishnan v. Guruvayur Dewaswom Managing Committee (1979 KLT 350 (F.B.)), the WPC.31508/08 13 provision under the Guruyaur Dewaswom Act, 1971, barring the jurisdiction of the civil court was struck down as unconstitutional, but, in the later decision Narayanan Namboodiri and others v. State of Kerala and others (1985 KLT 629 (F.B.)), so far as the new Act, Guruvayur Dewaswom Act, 1978, it was held not so, the argument canvassed by the learned counsel for the petitioners to buttress the proposition that Section 29 of the Guruvayur Dewaswom Act bars jurisdiction of the civil court, I find has no basis at all. In the later decision Narayanan Namboodiri and others v. State of Kerala and others (1985 KLT 629 (F.B.)), it is noticed that Section 32 interdicting any challenge, any notification, order or decision made by the Government or the Commissioner otherwise than provided under the Act was struck down as unconstitutional. That itself is indicative that jurisdiction of the court to impeach any mala fide action of the Government or the Commissioner is safeguarded and not ousted either explicitly or implicitly by any of the provisions of the Act. The issue emerging for consideration in the present case is whether defendants 1 and 2, the Dewaswom and its Chairman, after having withdrawn WPC.31508/08 14 whatever contentions to the suit and having made a request to the court to decree the suit not once, but, more than thrice, can turn around and ask the court to proceed with an adjudication on the question of jurisdiction to entertain the suit. The learned Munsiff was perfectly justified in holding that Ext.P6 application moved by the defendants is not entertainable, and it was rightly and correctly dismissed by Ext.P7 order. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp