IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 CRP.No. 416 of 2010() --------------------- AGAINST THE ORDER DATED 30/03/2010 IN IA 2124/09 IN OS.1/1979 of II ADDL. DISTRICT COURT, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): PETITIONERS -------------------------------- 1. VIJAYAN,AGED 47 YEARS,S/O.DAMODARAN, KP 12/330 (C),JISHNU BHAVAN,PATHIYAMALA, KARAKULAM,THIRUVANANTHAPURAM. 2. PRADEEP,AGED 41,S/O.PRABHAKARAN, SARASWATHY NILAYAM,JOSEPH LANE,KACHANI,KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT(S): --------------- 1. ATTUKAL BHAGAVATHY TEMPLE,REP.BY THE SECRETARY,ATTUKAL,THIRUVANANTHAPURAM. 2. ATTUKAL BHAGAVATHY TEMPLE TRUST BOARD, REPRESENTED BY ITS CHIARMAN,ATTUKAL, THIRUVANANTHAPURAM. 3. DR.AYYAPPAN NAIR,CHAIRMAN AND MANAGING DIRECTOR,ATTUKAL INSTITUTE MEDICAL SCIENCES, ATTUKAL,THIRUVANANTHAPURAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.416 of 2010 -------------------------------------- Dated this the 4th day of August, 2010. ORDER Petitioners claiming to be devotees of Attukal Bhagavathy Temple in Thiruvananthapuram District moved I.A.No.2124 of 2009 in O.S.No.1 of 1979 of the court of learned Additional District Judge-II, Thiruvananthapuram for a declaration that a lease deed executed by respondent Nos.1 and 2 as Secretary and Chairman of the Attukal Bhagavathy Temple Trust (referred to herein as “the Trust”) in favour of respondent No.3 for running a hospital in the building belonging to the Trust is null and void and for a consequential injunction. The application was purported to be filed under Sections 92 and 151 of the Code of Civil Procedure (for short, “the Code”). Application was opposed by respondent Nos.1 to 3. Learned Additional District Judge found, rejecting contention of respondents that since the suit originally filed under Section 92 of the Code being in a representative capacity it is open to any member or beneficiary of the Trust having a real, substantial and existing interest in the Trust property to come forward with an application but without obtaining further leave under the said provision held that no such real, substantial or existing interest is proved to exist in favour of petitioners and that at any rate, relief prayed for in I.A.No.2124 of 2009 fell outside the mischief of Section 92(1) of the Code. Result was a dismissal of that application. That order is under challenge in this revision. Learned counsel for petitioner contends that petitioners being beneficiaries of CRP No.416/2010 2 the Trust have a real, substantial and existing interest in the property of the Trust and that the request made in the application came within the purview of Section 92 of the Code since action of respondent Nos.1 and 2 creating lease in favour of respondent No.3 amounted to violation of provisions of the Bye-law of the Trust. Learned counsel has referred to me the Bye-law of the Trust which states that its properties shall be in the management and control of the trustees. 2. So far as the application of Section 92 of the Code is concerned, petitioners have to show that they have a direct, real, substantial and existing interest in the Trust and its affairs. Here, the two grounds stated by the petitioners in the application to show that they have such an interest are that they belonged to the locality where the temple is situated and are worshipers in the temple. Learned Additional District Judge has made specific observation that apart from the above stated two grounds, nothing is pleaded in the application to show that petitioners have any real, substantial or existing interest in the Trust property and relying on the decision of this Court in Narayana Pillai v. Jyothi (1991 (2) KLT 458) held that mere residence in the locality and worship in the temple is not sufficient to confer a real, substantial and existing interest in the Trust. Having heard counsel for petitioners and gone through the order of learned Additional District Judge in the light of the decision cited supra I do not find reason to interfere with that finding of the learned Additional District Judge. CRP No.416/2010 3 3. Then the question is whether prayer made by petitioners came within the scope of Section 92(1) of the Code. Section 92(1) Clauses (a) to (g) of the Code specifies certain reliefs which parties to the suit under Section 92 of the Code could request for. No doubt, even if the prayer made does not directly fall under the said Clauses it is sufficient that the prayer made has reference to the specified Clauses and Clause (h) deals with “granting such further or other relief as the nature of the case may require”. This Court in Abdul Azeez v. L.I.W.A. Educational Charitable Society (2010 (3) KLT158) has held that Clause (h) is to be read ejusdem generis with the enumerated reliefs in Clauses (a) to (g) of the Section 92 (1) of the Code. Relief asked for under Clause (h) should be similar to or referring to the specific reliefs provided under Clauses (a) to (g) of Section 92(1) of the Code. On going through the reliefs prayed for by the petitioners in I.A.No.2124 of 2009, I am unable to find that it comes within the scope of Clauses (a) to (h) of Section 92(1) of the Code. 4. On the other hand, it falls outside the scope of Section 92(1) of the Code. According to the petitioners grant of lease in favour of respondent No.3 in respect of building belonging to the Trust is beyond the scope of Bye- law of the Trust and hence is illegal. They therefore want cancellation of the lease deed and consequential reliefs. After referring to the decisions in Abdur Rahim v. Mahomed Barkat Ali (55 Indian Appeals 96), Pragdasji Guru Bhagwandasji v. Iswarlalbhai Narsibhai (AIR 1952 SC 143), Mukaremdas CRP No.416/2010 4 Mamudas v. Chhagan Kisan Bhawasar (AIR 1959 Bombay 491), Bishwanath and Another v. Sri Thakur Radha Ballabhji and others (AIR 1967 SC 1044) and T.G.Viswanathan Chettiar v. T.A.Shanmugha Chettiar (AIR 1992 Madras 148) this Court has held in Abdul Azeez v. L.I.W.A. Educational Charitable Society (supra - See paragraph No.9 of the decision) that when an alienation effected by the trustee in favour of third party is challenged on whatever ground it be, and consequent relief also is prayed for it is not a relief coming under any of the Clauses of Section 92(1) of the Code and that any person interested in the matter is entitled to file a separate suit to seek relief as against such alienation. This Court also said that even when recovery of property after cancellation of the document in favour of such third party is prayed for, it does not amount to any of the reliefs enumerated in Clauses (a) to (h) of Section 92(1) of the Code. If that be so, grievance of petitioners as regards the lease created by respondent Nos.1 and 2 in favour of respondent No.3 cannot be agitated by filing an application under Section 92(1) of the Code in O.S.No.1 of 1979. Remedy of petitioners if at all they are entitled, is to challenge alienation by way of lease in separate proceeding. Learned Additional District Judge is correct in holding that I.A.No.2421 of 2009 cannot be sustained. I find no reason to interfere. CRP No.416/2010 5 Resultantly without prejudice to other right if any of the petitioners to challenge the impugned lease in favour of respondent No.3 in appropriate proceedings, this revision petition is dismissed. I.A.No.1970 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks