IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH MAY 2010 / 16TH VAISAKHA 1932 WP(C).No. 14335 of 2010(O) -------------------------- CMA.34/2010 of III ADDL. DISTRICT COURT, KOLLAM IA NO.1305/2009 IN OS.333/2009 of MUNSIFF-MAGISTRATE COURT, SASTHAMCOTTA .................... PETITIONER(S): --------------- REV.SR.FEBA, AGED 57 YEARS, SECRETARY, BASALEL CONVENT, M.M.II TRUST, PADINJATA KIZHAKKUM MURI, SOORANADU NORTH VILLAGE, KUNNATHOOR TALUK, ERAVI CHIRA, SOORANADU P.O., KOLLAM. BY ADV. SRI.ASOK M.CHERIAN SRI.SANTHOSH G. PRABHU SRI.S.KANNAN NAIR RESPONDENT(S): --------------- SR.EMILIA, AGED 54 YEARS, MOTHER SUPERIOR, BASALEL CONVENT, ERAVI CHIRA, KIZHAKKUM MURI, SOORANADU SOUTH VILLAGE, KUNNATHOOR TALUK, SOORANADU P.O., KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.14335 of 2010 -------------------------------------- Dated this the 6th day of May, 2010. JUDGMENT This Writ Petition is in challenge of judgment of learned Additional District Judge-III, Kollam in C.M.A.No.34 of 2010 setting aside the order passed by the learned Munsiff-Magistrate, Sasthamcotta on I.A.No.1305 of 2009 in O.S.No.333 of 2009. That was a suit for permanent injunction filed by the petitioner before me claiming to be the Secretary of the trust referred to in the plaint. According to the petitioner, the suit property was taken on lease for a period of 30 years by the trust from Mar Baselius Marthoma Didimos, the supreme head of the Malankara Sabha. In that property, an English medium school is being run. Petitioner is claimed to be in possession and enjoyment of the suit property in her capacity as the Secretary of the trust. In the meantime, respondent, another nun (Mother Superior of the Basalel Convent, Sooranadu to which petitioner also belonged) is attempting to take forceable possession of the property. Respondent admitted that petitioner was the Secretary of the trust till she was removed from that post on 12.11.2009 and in that post, respondent was elected. She contended that the power of attorney executed in favour of petitioner by Mar Baselius Marthoma Didimos was cancelled and subsequent to 12.11.2009, petitioner has no right, interest or possession over the suit property. Learned Munsiff-Magistrate so far as the documents produced by the respondent (revocation of power of attorney and letter dated 5.12.2009 issued by the W.P.(C) No.14335/2010 2 Managing Trustee to the petitioner to handover the property to the newly elected Secretary, respondent) are concerned observed that those documents are obtained subsequent to the suit and hence cannot be looked into. Learned Munsiff-Magistrate observed that the lease deed in the name of petitioner (at a time when she was admittedly the Secretary of the trust) and receipt for payment of revenue revealed a prima facie case in favour of the petitioner and granted injunction. Appellate court found that the crucial question was whether petitioner was removed from the post of Secretary in the election held on 12.11.2009 but the learned Munsiff-Magistrate has not adverted to that aspect nor entered any finding and hence the order under challenge cannot be sustained. Accordingly the impugned order was set aside and I.A.No.1305 of 2009 was remitted to the trial court for fresh consideration. That judgment is under challenge in this petition at the instance of petitioner/plaintiff. Learned counsel for petitioner contends that the trial court had, with all the documents produced by the petitioner including the result of election came to the conclusion that petitioner has prima facie case and found in her favour. But on going through the order under challenge I find that no finding has entered as to the validity of the election of the respondent on 12.11.2009 or, the effect of the documents produced by the respondent in the trial court. Instead, those documents were brushed aside for the mere reason that they were obtained subsequent to the institution of the suit. But learned Munsiff-Magistrate failed to W.P.(C) No.14335/2010 3 note that even the election set up by the respondent was held on on 12.11.2009 and the letter produced by the respondent in the trial court was dated 5.12.2009. It is in the above circumstances that appellate court found that the real issue regarding the case was not considered by the learned Munsiff-Magistrate and required reconsideration. The appellate court also observed that since respondent has already filed written statement (and if pre-trial steps are over) the trial of the case could be expedited. I do not find anything illegal in the appellate court holding so. There is no case for the petitioner that she has any independent right, interest or possession over the suit property apart from being the Secretary of the trust which had taken the property on lease. Therefore the issue whether the petitioner continued to be the Secretary of the Trust after 12.11.2009 is certainly relevant for consideration even in deciding I.A.No.1305 of 2009. As such the appellate court is justified in setting aside the impugned order and remitting I.A.No.1305 of 2009 for fresh consideration. I find no reason to interfere with the order under challenge in this petition. 2. Learned counsel for petitioner requested that an interim order of injunction may be passed in this proceeding until disposal of I.A.No.1305 of 2009. But I am of the view that without deciding as to who is in actual W.P.(C) No.14335/2010 4 possession of the property it is not proper for me to grant interim order as prayed for. It is open to the petitioner to move the vacation court (in case there is any urgency) and seek appropriate interim relief as sought for. With the above observation this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks