IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 FAO.No. 5 of 2008() ------------------- AS.219/2004 of ADDL. DISTRICT COURT, N.PARAVUR OS.318/2003 of ADDL.SUB COURT, N.PARAVUR .................... APPELLANTS/RESPONDENTS/PLAINTIFF: ---------------------------------------------------- 1. ALANGAD YOGAM SABARIMALA BHAKTHA JANA BHAKTA KANA SANGAM ER 139/83 BY ITS PERIYON SRI.A.K.VIJAYAKUMAR,AMBADATHU HOUSE,MANJAPRA. 2. ALANGAD SANGHOM BY ITS REPRESENTATIVE SRI.M.N.RAJAPPAN NAIR, SANTHI SADANAM,MANJAPRA. 3. ALANGAD SANGHOM BY ITS REPRESENTATIVE M.G.RAVEENDRANATHEN,MENOKKIL VEEDU, ANNAMANADA. BY ADV. SRI A.VIJAYAKUMAR SRI A.N. SANTHOSH RESPONDENT(S): DEFENDANTS/APPELLANTS/RESPONDENTS ------------------------------------------------ 1. C.P.PURUSHOTHAMAN NAIR,AMMANATHU HOUSE CHENNATTU PUTHEN VEETTIL, VAYALKARA, KUNNUKARA. 2. CHANDRAMOHANDAS, S/O.PARAMESWARAN PILLAI PULANTHARA VEETTIL, VAYALKARA. 3 . SAISDHARAN NAIR, KAMPILLI VEETTIL, MUPPATHADOM. (DIED) 4. K.G.GOPALAKRISHNAN NAIR, KARUTHEDATHU VEETTIL, MANAYKKAPPARAMBIL HOUSE, KUNNUKARA. ADV. SRI.P.JAYASANKAR FOR R1, R2 AND R4. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/11/2010, ALONG WITH FAO NO.56 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.137/2008 IN FAO.NO.5/2008 ----------- DISMISSED 9/11/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy P.S. to JUDGE HARUN-UL-RASHID,J. ------------------------------- F.A.O. NOS. 5 & 56 OF 2008 ------------------------------- DATED THIS THE 9TH DAY OF NOVEMBER, 2010 JUDGMENT Plaintiffs in O.S.No.318/2003 on the file of the Sub Court, N. Parur are the appellants in F.A.O.No,5/2008, which is directed against the order of remand passed in A.S.No.219/2004 on the file of the Additional District Court, N. Parur. Plaintiffs in O.S.No.319/2003 on the file of the Sub Court, N. Parur are the appellants in F.A.O.No.56/2008, which is directed against the judgment and decree in A.S.No.218/04 on the file of the same court. The aforesaid two suits and another connected suit were jointly tried and disposed of by the Sub Court, N. Parur by a common judgment and decree dated 7/9/2004. O.S.No.318/2003 was partly allowed. The trial court passed a decree of injunction restraining the defendants and their agents from making collection in the name of the lst plaintiff “Yogam” to conduct 'Erumali Petta' and other rituals and observances of Pumba and Sanidhanam -2- F.A.O.Nos.5 & 56 /2008 during Makaravilakku festival in the name of the plaintiff 'Yogam'. The connected suit namely, OS.No.319/2003 was dismissed. The Appellate Court disposed of A.S.Nos.218/024 & 219/04 filed against the judgment and decree passed in the respective suits. The appellate Court without going into the contentions raised by the parties in the appeals considered the scope of the suits and held that both suits will come under the purview of Section 92 C.P.C. The court further held that the suits will come under the purview of explanation 1 and 2 to Section 9 C.P.C. and hence both the suits are liable to be returned for proper presentation to the court having jurisdiction in accordance with Section 92 C.P.C. The appellate Court set aside the judgment and decree of the trial court and directed the trial court to return the suits under Rule 10(a). 2. The learned counsel appearing for the parties submitted that the suits were decided on merits, after considering the issues relevant for consideration. O.S.No.319/03 was filed for declaration of the plaintiffs' right enjoyed during Makaravilakku -3- F.A.O.Nos.5 & 56 /2008 and for consequential injunction. The connected suit was filed by the plaintiffs therein for an injunction to restrain the defendants in the suit from making collection in the name of the lst plaintiff 'Yogam' to conduct Erumeli Petta and other rituals and observances of Pumba and Sannidhanam during Makaravilakku festival in the name of the plaintiff 'Yogam'. Both sides submitted that without understanding the scope of the suit and the subject matter of the appeal and without going into the contentions raised by the parties, the Appellate Court formulated an issue regarding the maintainability of the suits and held that the suits are not maintainable. According to the learned Judge, the proper course open to the parties is to file a suit under Section 92 C.P.C. The Appellate Court has gone beyond the pleadings and evidence in the case in taking such a view. So long as the appeals were filed challenging the findings of the trial court on merits, the Appellate Court should have disposed of the appeals on merits, after considering the contentions raised by the parties to the appeals. -4- F.A.O.Nos.5 & 56 /2008 Instead, the Appellate Court held that the suits are not maintainable, a question, which was not raised by either side and dismissed both the suits finding that the suits are not maintainable. Learned counsel on both sides submitted that the question of maintainability of the suits decided by the Appellate Court is not a question argued by either of the counsels. It is also submitted that the decision taken by the Appellate Court, without hearing both sides on the question of maintainability of the suit, is therefore unsustainable. 3. In the circumstances, the common judgment passed in A.S.Nos.218/04 & 219/04 is set aside. There will be a direction to the Lower Appellate Court to hear and dispose of the appeals on merits within a period of six months from the date of receipt of the copy of this judgment. If there is any scope for considering the question of maintainability of the suits, that can be considered by the Appellate Court after hearing both sides. The parties are at liberty to move the Appellate Court for appropriate interim reliefs, -5- F.A.O.Nos.5 & 56 /2008 if so advised. 4. The appellants in F.A.O. No.5/2008 filed a petition under Order 41 Rule 27 C.P.C. to receive certain documents in evidence. The Lower Appellate Court shall consider and pass appropriate orders on the said petition. The documents produced in the petition filed under Order 41 Rule 27 C.P.C. by the appellants in FAO.No.5/08 shall be sent back to the Appellate Court for passing appropriate orders. The parties to the appeals are at liberty to file petition to receive additional documents in evidence, if so advised. The Appeals are disposed of as above. No order as to costs. Sd/- HARUN-UL-RASHID, Judge. kcv.