IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 OP(C).No. 972 of 2010(O) OS.1324/2009 OF II ADDL.MUNSIFF'S COURT, ERNAKULAM PETITIONERS: ---------------------- 1. MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, REP.BY THE PRESIDENT OF THE MANAGING COMMITTEE K.R.RAMESHAN. 2. K.R.RAMESHAN, PRESIDENT, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.K.V.RAMACHANDRAN, KALAZHATHU PARAMBU, PACHALAM, KOCHI-12. 3. K.R.MOHANAN, VICE PRESIDENT, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAJU (PAMBA STORES) KARUVELIPARAMBU, PACHALAM, KOCHI-12. 4. K.R.DIVAKARA RAO, SECRETARY, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAI RAO, KARUVELIPARAMBU, UDAYANAN ROAD, PACHALAM, KOCHI-12. 5. K.R.MOHANAN, JOINT SECRETARY, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAMA SHETTY, RICE MERCHANT, KALOOR, KOCHI-17. 6. T.B.RAJA RATNAM, TREASURER, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.BHAKSARAN, THUNDIPARAMBIL VEEDU, PACHALAM, KOCHI-12. 7. K.P.AJITH KUMAR, EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTAKULNGARA BHAGAVATHY DEVASWOM, S/O.PADMANABHA SHENOY, KOOVAKKATTU HOUSE, PACHALAM, KOCHI-12. 8. K.R.PRAKASHAN, EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAMADAS KALAZHATH PARAMBU, PACHALAM, KOCHI-12. O.P.(C) NO.972 OF 2010 O :: 2 :: 9. T.P.ARUN KUMAR, EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTUKULANGARA BHAGAVATHY DEVASWOM, S/O.T.S.PRABHAKARAN, C/O.P.G.BABU, JALAJA SWEETS, POTTAKKUZHY ROAD, PACHALAM, KOCHI-12. 10 M.D.CHANDRASEKHARAN, S/O.M.B.DASHARADHAN, MADAPATTU HOUSE, PACHALAM, KOCHI - 12. BY ADV. SRI.S.B.PREMACHANDRA PRABHU SRI.G.SREENIVASA PRABHU RESPONDENTS: --------------- 1. V.J.KRISHNAN, S/O.JOGYA SHETTY, AGED 66, ALUKKAL VEEDU, KOCHI - 12. 2. P.B.MANIKKALAL, S/O.BALU SHETTY, AGED 57, PALAPARAMBIL HOUSE, KOCHI - 12. 3. T.N.RADHAKRISHNAN, EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTUKULANGARA BHAGAVATHY DEVASWOM, S/O.NEELASARA SHETTY, THUNDIPARAMBU, PACHALAM, KOCHI - 12. 4. T.B.BABU, EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTUKULANGARA BHAGAVATHY DEVASWOM, S/O.BALAKRISHNAN, THUNDIPARAMBU, PACHALAM, KOCHI - 12. R1 AND R2 BY ADV.SMT.P.M.SWAYAM PRABHA R3 AND R4 BY ADV. SRI.ANIL KUMAR M.SIVARAMAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.1324/2009 OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.1324 OF 2009. EXT.P3 TRUE COPY OF THE ELECTION DECLARATION ORDER DATED 23.2.2010. EXT.P4 TRUE COPY OF THE MINUTES OF THE METTING OF THE NEWLY ELECTED COMMITTEE HELD ON 25.2.2010. EXT.P5 TRUE COPY OF THE ORDER APPOINTING COURT RECEIVER DATED 7.4.2010 IN I.A.NO.483 OF 2010 IN O.S.NO.1324 OF 2009. EXT.P6 TRUE COPY OF ORDER DATED 13.8.2010 IN I.A.NO.2344/2010 AND 2877/2010 IN O.S.NO.1324 OF 2009. EXT.P7 TRUE COPY OF THE I.A.NO.5354/2010 IN O.S.NO.1324/2009 FILED BY THE PETITIONERS. EXT.P8 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PLAINTIFFS IN I.A.NO.5354/2010 IN O.S.NO.1324/2009. EXT.P9 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY DEFENDANTS 8 AND 9 IN I.A.NO.5354/2010 IN O.S.NO.1324/2009. EXT.P10 TRUE COPY OF THE I.A.NO.5422 OF 2010 FILED BY THE PLAINTIFFS IN O.S.NO.1324/2009. EXT.P11 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS IN I.A.NO.5422 OF 2010. EXT.P12 TRUE COPY OF THE JUDGMENT DATED 13.10.2010 IN WP(C) NOS.28352 OF 2010 AND 28472 OF 2010. EXT.P13 TRUE COPY OF THE COMMON ORDER PASSED IN I.A.NO.5354 OF 2010 AND I.A.NO.5422 OF 2010 DATED 21.10.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 972 OF 2010 O ------------------------------------------------------ Dated this the 14th day of February, 2011 JUDGMENT Respondents 1 and 2 filed O.S.No.1324 of 2009 on the file of the II Additional Munsiff's Court, Ernakulam, against the petitioners and respondents 3 and 4. The petitioners are defendants 1 to 7 and 10 to 12. Respondents 3 and 4 are defendants 8 and 9. It is stated that defendants 8 and 9 support the plaintiffs. 2. The suit is filed for a permanent prohibitory injunction restraining defendants 2 to 12 from convening the committee and conducting the administration including the day-to-day affairs of the Erattakulangara Bhagavathi Temple and for a declaration that the first defendant Managing Committee elected on 28.9.2008 having the defendants as office bearers became functus officio. The first defendant is the Managing Committee of Erattukulangara Bhagavathy Devaswom. It is stated in the plaint that a no- confidence motion against the erstwhile Committee was passed. There is dispute over the same. O.P.(C) NO.972 OF 2010 :: 2 :: 3. Defendants 1 to 7 and 10 to 12 filed a joint written statement. They disputed the contentions put forward by the plaintiffs. They also preferred a counter claim for a decree to conduct election of the Managing Committee of the temple under the supervision of an Advocate Commissioner deputed by the Court and also to enable the then existing Managing Committee to continue in office as adhoc committee until the assumption of a new committee. In the counter claim they also prayed for a decree declaring that the newly elected Managing Committee could assume the office for a period of three years in terms of the bye-law of the Devaswom. 4. It would appear that an application was filed by the contesting defendants to appoint a Commissioner for conducting the election of the committee members. That application was not opposed by the plaintiffs. Accordingly, a Commissioner was appointed. Two other Advocates were also appointed to assist the Commissioner. The Commissioner conducted the election and submitted a report. Ballot papers were opened in Court and as per Ext.P3 order dated 23.2.2010, the Court declared the election results. Ext.P4 shows that a meeting of the newly elected committee was held on 25.2.2010. O.P.(C) NO.972 OF 2010 :: 3 :: 5. The plaintiffs filed I.A.No.483 of 2010 for appointing a Receiver. Defendants 8 and 9 also filed I.A.No.2344 of 2010 to set aside the Commissioner's report. I.A.No.2877 of 2010 was filed by the plaintiffs to set aside the Commissioner's report and the election. 6. In I.A.No.483 of 2010, the court below passed an order dated 7.4.2010, appointing a Receiver, as an interim arrangement, till the disposal of I.A.No.2344 of 2010. This was made on the basis of the allegations against the second defendant. It was alleged by the plaintiffs and the supporting defendants that the second defendant was arrested by CBI in a forgery case involving large amounts belonging to a bank. 7. I.A.No.2344 of 2010 and I.A.No.2877 of 2010 were dismissed by the court below as per Ext.P6 order dated 13.8.2010. The order dated 13.8.2010 in I.A.Nos.2344 of 2010 and 2877 of 2010 was challenged by the plaintiffs and defendants 8 and 9 in W.P.(C) Nos.28352 of 2010 and 28472 of 2010, which were disposed of by this Court as per Ext.P12 judgment dated 13.10.2010. At the time of arguments, the writ petitioners therein sought permission to withdraw the Writ Petitions without prejudice to their O.P.(C) NO.972 OF 2010 :: 4 :: rights to challenge the election conducted by the Advocate Commissioner in a civil suit filed by some other members before the District Court under Section 25 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. 8. I.A.No.5354 of 2010 was filed by the contesting defendants to discharge the Receiver and I.A.No.5422 of 2010 was filed by the plaintiffs for an order to continue the Receivership. Those applications were considered together by the court below and I.A.No.5354 of 2010 to discharge the Receiver was dismissed and I.A.No.5422 of 2010 to continue the Receivership was allowed, as per Ext.P13 order dated 21.10.2010. Ext.P13 order is under challenge in this Original Petition at the instance of the contesting defendants. 9. The main reason stated by the court below for arriving at the conclusion that the Receiver should continue is that the prayer for conducting election and for declaring the results was made in the counter claim and unless the counter claim is decided on the merits, the results of the election cannot be declared and the Committee elected in the election conducted by the Commissioner cannot be O.P.(C) NO.972 OF 2010 :: 5 :: allowed to take charge. In short, the court below ignored Ext.P6 order by which the application to set aside the Commissioner's report was dismissed and also ignored the order dated 23.2.2010 in I.A.No.483 of 2010 (Ext.P3), by which, the court below declared the results of the election. The application for continuing the Receivership was filed by the plaintiffs, since the Receiver was appointed, as an interim arrangement, till the disposal of I.A.No.2344 of 2010. I.A.No.2344 of 2010 filed by defendants 8 and 9 and the application filed by the plaintiffs were dismissed by the court below. Therefore, the plaintiffs thought that a separate order should be passed by the court below so that the Receiver could continue. 10. As stated above, the court below found in the order impugned that the Receiver should continue. Had the Court below not appointed a Commissioner to conduct the election, the election could be conducted as per the bye-laws and the newly elected committee could take charge. To avoid any dispute, both sides agreed that election should be conducted by appointing a Commissioner. Such an election was conducted. The court below declared the results. Thereafter, the court below was not justified in saying that the newly elected Committee should not take charge, O.P.(C) NO.972 OF 2010 :: 6 :: only on the ground that if such a prayer is allowed it would have the effect of allowing the counter claim. The court below was not justified in saying that since the counter claim is not considered and disposed of, the newly elected committee, which was elected as per the orders passed by the court below, should not take charge. If so, why did the Court appoint a Commissioner to conduct the election and why did the Court intervene in the matter? At least, as an interim measure, the newly elected committee should be allowed to function as such. Otherwise, there is no meaning in the intervention of the Court and in conducting election by appointing a Commissioner. It cannot be thought that the court below passed a meaningless order to conduct election by appointing a Commissioner and also passed a meaningless order declaring the results. The declaration of results was not interfered with by this Court, since the Writ Petitions filed by the plaintiffs and defendants 8 and 9 were withdrawn by them. I am of the view that the court below was not right in passing the order interdicting the newly elected Committee from discharging its functions as the Committee of the temple. 11. It is a fact that the second defendant was arrested by the CBI and there are several allegations against him. To a query made O.P.(C) NO.972 OF 2010 :: 7 :: to the counsel for the petitioners, he submitted that, for the time being, the petitioners have no objection in the second defendant being not allowed to function as the President, till the disposal of the suit. In other words, the second defendant shall not function as the President of the Committee till the suit is finally disposed of or till the term of the newly elected Committee is over or till a fresh election is held, whichever happens first. However, the other committee members would be entitled to function as such. They shall submit periodical reports to the court below regarding the income and expenditure. Such reports shall be filed on or before the 15th of every month without fail. 12. Learned counsel appearing for the plaintiffs as well as defendants 8 and 9 submitted that the Receiver has taken preliminary steps for the conduct of the festival which is scheduled to be held in April, 2011. It is submitted that the Receiver has given advances to various persons for the purposes of the festival. If the Receiver produces acceptable records before the court below to show that such advances were made, the newly elected committee shall be bound by such payments and they should honour such O.P.(C) NO.972 OF 2010 :: 8 :: payments. The court below shall pass appropriate orders in this regard. For the aforesaid reasons, the Original Petition is allowed and the order impugned is set aside. The trial court shall pass appropriate interim orders to give effect to this judgment. The Receiver is, accordingly, discharged. The Receiver shall submit accounts to the trial court. The trial court shall scrutinize the same and pass appropriate orders. Since the plaintiffs and defendants 8 and 9 voiced an apprehension that the newly elected committee may not conduct the festival in a proper manner, it is made clear that the parties would be free to approach the trial court to appoint a Commissioner to oversee that the festival is properly conducted. (K.T.SANKARAN) Judge ahz/