IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 9501 of 2008 (F) ------------------------- AGAINST THE ORDER DATED 18/12/2007 IN IA.4704,5510 & 5195/07 IN OS.625/2007 OF PRL.SUB COURT,THIRUVANANTHAPURAM. .................... PETITIONERS: ------------ 1. SREE PADMANABHASWAMY TEMPLE, REPRESENTED BY ITS EXECUTIVE OFFICER, COL. SASIDHARAN R., WEST NADA, FORT, THIRUVANANTHAPURAM. 2. COL.SASIDHARAN R., EXECUTIVE OFFICER, SREE PADMANABHASWAMY TEMPLE, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.THOMAS ABRAHAM SRI.V.PRATHAPA CHANDRAN SRI.P.PRAVEEN SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS RESPONDENTS: ------------- 1. N.VISWAMBHARAN, S/O.NARAYANAN, BEENA COTTAGE, BALARAMAPURAM, THIRUVANANTHAPURAM. 2. R.PADMANABHAN, S/O.RAMA IYER, WEST STREET, FORT, THIRUVANANTHAPURAM. 3. P.RAJENDRADAS, GENERAL SECRETARY, SREE PADMANABHASWAMY TEMPLE EMPLOYEES UNION, T.C.25/3288-2, VYATTU VEEDU, VANCHIYOOR, THIRUVANANTHAPURAM. 4. K.PADMANABHADAS, S/O.KARUNAKARA PANICKER, SREELEKSHMI, SANGAMAM NAGAR, PUTHENPALAM, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. (...2) : 2 : 5. SHAIJU, S/O.BALAKRISHNAN NAIR, GENERAL CONVENOR, SIVASENA, VADAKKENADA, FORT, THIRUVANANTHAPURAM. 6. DR.G.RAJASEKHARAN NAIR, T.C.29/1629(3), MADATHIL LANE, CHEMPAKASSERY, VALLAKKADAVU, THIRUVANANTHAPURAM. 7. R.CHANDRANKUTTY, T.C.49/2158, BINDU BHAVAN, PANDANNAVOOR LANE, MANACAUD, THIRUVANANTHAPURAM. 8. G.JAYASEKHARAN NAIR, T.C.49/999(1), AMBADI, CHIRAMUKKU, THIRUVANANTHAPURAM. 9. C.P.SATHEESH, C.P.BHAVAN, MINCHIN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN FOR R6 SRI.M.R.SASITH FOR R6 SRI.T.K.ANANTHA PADMANABHAN FOR R1 & 2 SRI.VAKKOM N.VIJAYAN FOR R9 SRI.P.ANIYAN FOR R9 SRI.PIRAPPANCODE V. SUDHEER FOR R4 SRI.D.SOMASUNDARAM FOR R7 SRI.P.SASIDHARAN NAIR(CHERUNNIYOOR) FOR R3 SRI.R.T.PRADEEP FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: (...3) : 3 : APPENDIX Petitioners’ Exhibits: Exhibit-P1:- True copy of the plaint in O.S. 625 of 2007 on the file of Principal Subordinate Judge’s Court, Thiruvananthapuram, dated 5.9.2007 Exhibit-P2:- True copy of application, I.A. 4704/2007 in O.S. 625/2007, dt. 5.9.2007 Exhibit-P3:- True copy of the counter affidavit date 26.9.2007 filed against Ext.P2 application Exhibit-P3(a):-True copy of the format of the Mahazar Exhibit-P4:- True copy of the application, I.A.5195 of 2007 in O.S.625 of 2007 dated 3.10.2007 Exhibit-P5:- True copy of the application, IA 5510/2007 in OS 625/2007 on the file of the Prl. Sub Judge’s Court, Thiruvananthapuram, dated 17.10.2007 Exhibit-P6:- True copy of counter affidavit to I.A. 5510/2007, dated 3.11.2007. Exhibit-P7:- True copy of the order of the Sub Judge’s Court, Thiruvananthapuram in IA 4704/2007, IA 5195/2007 and IA 5510/2007 in OS 625/2007, dated 18.12.2007. Respondents’ Exhibits: Exhibit-R6(a):-True copy of the Commission Report in OS 625/2007 dated 23.11.2007 Exhibit-R6(b):-True copy of the application filed on 5.10.2007 Exhibit-R2(a):-A copy of the relevant portion of the interview in a Malayala Magazine “Kerala Sabdam” Exhibit-R2(b):-A copy of the complaint dated 24.9.2007 //True Copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) .No. 9501 of 2008 ------------------------------------------ Dated this the 12th day of June, 2008 JUDGMENT O.S. 625 of 2007 was filed by respondents 1 and 2 before Sub Court, Thiruvananthapuram claiming a decree for permanent prohibitory injunction, restraining defendants or any other person claiming to have any right in the affairs of the Sree Padmanabhaswami Temple, from opening the six “kallaras” (cellars) inside the Nalambalam, which is described in the plaint B schedule or taking any articles from the “kallaras” in any manner, detrimental to the interest of the deity and the devotees and also for mandatory injunction to remove the articles described in the A schedle property brought inside the temple. The suit was filed under Order I Rule 8 as well as Section 91 of the Code of Civil Procedure. Along with the suit, I.A.4704 of 2007, an application for temporary injunction was filed. When that petition was pending, I.A.5195 of 2007 was filed by petitioners/the defendants 1 and 2 to decide the maintainability of the suit. I.A. 5510 of 2007 was, WPC9501/08 2 thereafter, filed by respondents 1 and 2 to implead the State as an additional defendant. Learned Sub Judge heard all the petitions together and under Ext.P7 order granted an order of temporary injunction, allowed the impleading application and impleaded the State as an additional defendant and finding that suit is maintainable, dismissed I.A.5595 of 2007. Challenging the order granting order of injunction under Order XXXIX Rule 1 of Code of Civil Procedure, petitioners filed an appeal, C.M.A. 7 of 2008 before District Court, Thiruvananthapuram. This petition is filed under Article 227 of Constitution of India to set aside Ext.P7 order as it relate to I.As 5510 of 2007 and 5195 of 2007. 2. Learned senior counsel appearing for the petitioners and the learned counsel appearing for the respondents and the learned Government Pleader were heard. 3. Though the learned senior counsel vehemently argued that Ext.P7 order is not maintainable and the suit itself is not maintainable in lieu of not sending notice as provided under Section 55 of the Travancore-Cochin Hindu Religious Institutions Act, 1956 and also in view of Section 41(f) of Specific Relief Act, 1963 pointing out that in Ext.P7 order these aspects were not WPC9501/08 3 properly considered, while challenging Ext.P7 order in C.M.A. 7 of 2008 which is pending before the District Court, petitioners are entitled to take up all these contentions. Therefore, I do not find it necessary to interfere with Ext.P7 order at this stage. Petitioners are at liberty to challenge the finding in Ext.P7 order including the maintainability of the suit in the pending appeal before the District Court. 4. The learned senior counsel argued that being a suit for injunction learned Sub Judge should not have impleaded the State as a defendant in the suit at the instance of the petitioners and therefore the order impleading the State in I.A.5510 of 2008 is to be set aside. The learned Government Pleader pointed out that though pursuant to Ext.P7 order the State has appeared in the suit, State is not impleaded in the writ petition and therefore the order impleading the State cannot be set aside. 5. Considering the fact that suit is instituted under Order I Rule 8 of Code of Civil Procedure, even if the plaintiff has not impleaded the State as a defendant, State is entitled to get themselves impleaded by filing an application. Viewed from that angle I do not find it necessary to interfere with the order impleading the State as additional defendant as even otherwise WPC9501/08 4 the State can come up as a defendant in the suit. 6. The question of maintainability is to be decided by the Court on the evidence to be recorded. The issue regarding maintainability of the suit on the ground of Section 55 of the Travancore-Cochin Hindu Religious Institutions Act, 1956 as well as Section 41(f) of the Specific Relief Act, 1963 and Section 91 of Code of Civil Procedure cannot be decided as a preliminary issue as evidence will be necessary to decide it. Therefore, whatever finding is entered into with regard to the maintainability of the suit in Ext.P7 order, it will not prevent petitioners from raising the same in the suit at the time of evidence and will not preclude the Court to decide the question afresh. It is made clear that finding in Ext.P7 order on that aspect will not operate as a bar at the time of final disposal of the suit. M. SASIDHARAN NAMBIAR, JUDGE Okb/-