IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP(C).No. 722 of 2010(O) ------------------------------- AGAINST THE ORDER DATED 29/10/2010 IN IA.67/2010 IN OS.796/2010 of PRL.SUB COURT,THRISSUR .................... PETITIONER --------------- ASHA, D/O. SIVAJANAVALLY & RAMACHANDRAN, NOW WORKING AS VICE-PRINCIPAL, AMRITHANANDAMAYI HIGHER SECONDARY SCHOOL, KANIAMPURAM, OTTAPALAM, PALAKKAD DISTRICT. BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): --------------------- 1. SAUDAMAINI, W/O. PAMPUKATTIL SANKARAN, PENSIONER, PATTIKKAD DESOM, PATTIKKAD VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680652. 2. PADMAVATI, W/O. MELETTE VELAPPAN, 'SAI GEETHA', ANJERI DESOM, OLLUR VILLAGE, THRISSUR TALUK,THRISSUR DISTRICT-680652. 3. MANAGING TRUSTEE, KUTHIRANMALA SREE DHARMASASTHA TRUST, KUTHIRAN, PEECHI VILLAGE, THRISSUR TALUK, THRISSUR DISTICT-680653. 4. SANTHA BAI, W/O. MADHAVAN, SECRETARY, KUTHIRANMALA SREE DHARMASASTHA TRUST, RESIDING AT "LAZMI SADANAM", VALAPPAD(P.O.) CHAVAKKAD TALUK-680657. svs ..........2/-.... ...2... OPC.NO.722/2010 5. THANKAM, W/O. MENOTH PARAMBIL MADHAVAN & D/O. PAMPUMKATTIL KUTTAPPU, VADAKUMMURI DESOM, VADAKUMMURI VILLAGE, PERINGOTTUKARA.P.O., THRISSUR TALUK, THRISSUR DISTRICT-680565. 6. SIVANJANAVALLY @ JNANAVALLY RAMACHANDRAN D/O. PAMPUKKATTIL KRISHNAN, VENGARA NURSING HOME, KOTTKAL.P.O., MALAPPURAM DISTRICT-676304. 7. SADASIVAN, S/O. PAMBUKATTIL KRISHNAN, ROYAL STREET, OLLUKARA VILLAGE, THRISSUR TALUK THRISSUR DISTRICT-680555. 8. BEENA, W/O. PAMBUKKATTIL LATE SUBHASH CHANDRAN, CHEMBUTRA DESOM, PANANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTICT-680555. 9. P.K.SURESH BABU, ADVOCATE, AYYANTHOLE, THRISSUR-3,(ADVOCATE COMMISSIONER APPOINTED IN O.S. 796/96 OF SUB COURT, THRISSUR ON 29/10/2010 AS PER ORDER IN I.A. 67/2010.) R-1 BY ADVS. SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ R3,4,7 & 8 BY ADV. SRI.N.SUBRAMANIAM SRI.K.NEELAKANTA MENON R6 BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN R9 BY ADV. SRI.C.PRABIN BENNY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, ALONG WITH OPC NO. 751 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 722/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE INJUNCTION ORDER DATED 12/03/2009 IN I.A. 2044/2009 IN O.S. 632/2009 ON THE FILE OF MUNSIFF COURT, THRISSUR. P2: COPY OF THE INJUNCTION ORDER DATED 19/03/2009 IN I.A. 2044/2009 IN O.S. 632/2009 ON THE FILE OF MUNSIFF COURT, THRISSUR. P3: COPY OF THE ORDER APPOINTING ADVOCATE COMMISSIONER TO CONDUCT THE GENERAL BODY AND ELECTION IN I.A.67/2010 IN O.S.796/2010 ON THE FILE PRL. SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.722 of 2010 & 751 of 2010 -------------------------------------- Dated this the 29th day of July, 2011. JUDGMENT These Original Petitions are in challenge of Exts.P3 and P5, order dated October 29, 2010 on I.A.No.67 of 2010 in O.S.No.796 of 1996 (the same order marked in the respective petitions) whereby learned Principal Sub Judge, Thrissur appointed an Advocate Commissioner to conduct election to the managing committee of the Trust which owns the temple and its properties. 2. In O.S.No.796 of 1996 a scheme was framed for administration of the Kuthiranmala Sridharmasastha Temple and its properties. As per the said scheme election is to be conducted after specific intervals as directed in the scheme. It is stated that petitioners in O.P.(C) No.751 of 2010 were elected as office bearers of the trust and their term expired by December, 2010. Consequent to that, fresh election was to be conducted. It is while so that I.A.No.67 of 2010 was filed in O.S.No.796 of 1996 alleging that petitioners in O.P.(C) No.751 of 2010 are indulging in mis-management of the trust properties and are not taking steps to conduct fresh elections. On that application learned Principal Sub Judge as per order dated October 29, 2010 ordered election and appointed an Advocate Commissioner to conduct the election. (Ext.P5 in O.P(C) No.751 of 2010 and Ext.P3 in O.P.(C) No.722 of OP(C) Nos.722/2010 & 751/2010 2 2010) In the meantime, one Asha (petitioner in O.P.No.722 of 2010) filed O.S.No. 632 of 2009 in the court of learned First Additional Munsiff, Thrissur for a decree for prohibitory injunction to restrain conduct of election (in accordance with the scheme framed in O.S.No.796 of 1996) without her also being included in the trust. As per Ext.P1, order (in both petitions) dated March 12, 2009 on I.A.No.2044 of 2009 in O.S.No.632 of 2009 learned First Additional Munsiff granted an interim order which was extended by Ext.P2, order dated March 19, 2009. (I am told that O.S.No.632 of 2009 ended in dismissal for default and the petitioner in O.P.(C) No.722 of 2010 has filed an application for restoration of the suit which is pending consideration). 3. Things did not end there. One Anuradha and Anirudhan filed O.S.No.1534 of 2008 in the court of learned Sub Judge, Thrissur for similar relief as in O.S.No.632 of 2009 and obtained order for temporary injunction (I am told that the said order is in force). Thereafter one Harsha Mohan filed O.S.No.3654 of 2010 in the court of learned Munsiff, Thrissur seeking similar relief as in O.S.No.1534 of 2008. Therein learned Munsiff passed order dated December 15, 2010 against conduct of election to the trust without including plaintiffs in that suit also in the trust. It is in the above circumstances that petitioners have approached this Court with these Original Petitions under Article 227 of the Constitution requesting to quash Exts.P3 and P5, order (in both petitions) dated October 29, 2010. OP(C) Nos.722/2010 & 751/2010 3 4. I have heard learned counsel on both sides. Contention raised by petitioners in these Original Petitions mainly is that in view of the orders of injunction passed by respective courts in the suits above stated, conduct of election as directed by learned Principal Sub Judge in the order dated October 29, 2010 on I.A.No.67 of 2010 is not possible since that would amount to violation of order of injunction passed by respective courts. Petitioner in O.P.(C) No.722 of 2010 has a further contention that without including her also in the trust, no election could be conducted. It is therefore, prayed that order dated October 29, 2010 may be quashed. 5. Learned counsel appearing for respondents in both the Original Petitions contend that attempt of petitioners in O.P.(C) No.751 of 2010 ably assisted by the persons who instituted the suits subsequently is to somehow cling on to their office in spite of the fact that the term of their office expired by December, 2010. Learned Senior Advocate appearing for respondents 1 and 2 in O.P.(C) No.722 of 2010 has pointed out the circumstances under which learned Principal Sub Judge passed the order dated October 29, 2010 on I.A.No.67 of 2010 (in O.S.No.796 of 1996). It is pointed out that in spite of the term of office expiring, persons now in office have not taken any steps to conduct the election. It is also pointed out that though it was contended before the learned Principal Sub Judge that in O.S.Nos.632 of 2009 and 1534 of 2008 orders of injunction against conduct of election were passed, no document was produced before learned Principal Sub Judge to substantiate that contention. Certain other contentions were also raised before learned Principal Sub Judge OP(C) Nos.722/2010 & 751/2010 4 which were dispelled. Accordingly it was directed that Advocate P.K.Suresh Babu is appointed to convene the general body and elect office bearers as per the scheme. Petitioners in I.A.No.67 of 2010 were directed to deposit `3,500/- towards the batta for the Advocate Commissioner which, it was observed could be reimbursed from the temple committee later. There was a direction to the present temple administrative committee to meet the election expenses. 6. Though, it is submitted that O.S.No.632 of 2009 has been dismissed for default it is also submitted that an application for its restoration is pending. Since learned First Additional Munsiff is to consider whether the suit has to be restored or not I do not intend to make any observation in these proceedings concerning that as it may have a bearing on the decision of learned First Additional Munsiff in the decision to be taken in that matter. 7. Fact remains, two other suits – O.S.Nos.1534 of 2008 and 3654 of 2010 are pending consideration before learned Sub Judge and learned Munsiff, Thrissur. It is also revealed that in the said suits orders have been passed by the respective courts restraining conduct of election before plaintiffs in those suits are also included in the trust. 8. I must bear in mind that a scheme has already been framed for proper administration of the temple and its properties, in O.S.No.796 of 1996. The scheme has to be carried into effect. Possibility of suits coming on various grounds, genuine or not in future and the courts concerned passing orders of OP(C) Nos.722/2010 & 751/2010 5 injunction also cannot be ruled out. Therefore, until disposal of the suits that are pending or, that may come, functioning of the trust cannot be put to a stand still. As the term of office of present office bearers/petitioners in O.P.(C) No.751 of 2010) has expired by December, 2010, there is no justification in their continuing in the office. 9. It would appear to me that in view of the orders of injunction passed by the respective courts in O.S.Nos.1534 of 2008 and 3654 of 2010 it is not proper to direct the election to be conducted as learned Principal Sub Judge has ordered which will have the effect of violating the orders passed by the respective courts. Those orders are to be respected so far as it remains in force. At the same time arrangements has to be made so that the office bearers whose tenure has already expired did not continue. Having heard learned counsel on both sides the proper course open, it appears to me is to appoint a receiver for the trust and its properties for administration and management until new election is conducted. 10. Learned counsel appearing for petitioners in O.P(C) No.751 of 2010 at this stage submitted that apart from the Advocate Commissioner already appointed by learned Principal Sub Judge, another suitable person may be appointed as receiver. I leave that matter to the decision of learned Principal Sub Judge, having regard to the facts and circumstances and, after hearing the parties in O.S.No.796 of 1996. Learned Principal Sub Judge shall appoint a suitable person as receiver to take possession of temple properties and OP(C) Nos.722/2010 & 751/2010 6 administer the trust and its properties subject to appropriate conditions that learned Principal Sub Judge may fix. The receiver shall conduct the election as and when the applications for order of injunction in the above mentioned suits are disposed of. Resultantly these Original Petitions are disposed of in the following lines: In Substitution of the order dated October 29, 2010 on I.A.No.67 of 2010 in O.S.No.796 of 1996 of the court of learned Principal Sub Judge, Thrissur, following directions are issued: (a) Learned Principal Sub Judge shall appoint a suitable person as receiver for the administration and management of the trust and temple above referred after hearing the parties in O.S.No.796 of 1996. (b) The receiver shall take possession of properties of the temple and administer and manage it as may be directed by learned Principal Sub Judge and subject to appropriate conditions learned Principal Sub Judge may fix after hearing parties in O.S.No.796 of 1996. (c). O.S.No.3654 of 2010 pending in the court of learned Munsiff, Thrissur is withdrawn from that court and transferred to the court of learned Principal Sub Judge, Thrissur. Learned Munsiff shall transmit the records of OP(C) Nos.722/2010 & 751/2010 7 O.S.No.3654 of 2010 to the court of learned Principal Sub Judge with due intimation to the counsel as to the date of appearance of parties in the transferee court. (d) O.S.No.1534 of 2008 (if not pending in the court of learned Principal Sub Judge) if pending in the court of any of the Additional Sub Judges also is withdrawn from that court and transferred to the court of learned Principal Sub Judge, Thrissur. In that case, the transferor court shall transmit records of that case to the transferee court with due intimation to the counsel as to the date of appearance of parties in the transferee court. (e) Learned Principal Sub Judge shall make every endeavour to dispose of the applications for injunction and if necessary the suits itself as early as possible to facilitate conduct of early election. (f) After disposal of the applications for injunction/suits as the case may be, learned Principal Sub Judge shall give necessary direction to the receiver appointed as above stated to conduct election to the administrative committee of the trust and issue necessary direction in that regard. (g) Learned Principal Sub Judge is directed to appoint a receiver after hearing the parties in O.S.No.796 of 1996 as early as possible and at any rate, within three weeks from the date of receipt of a copy of this judgment in that court. Necessary orders regarding remuneration, preliminary expenses of the OP(C) Nos.722/2010 & 751/2010 8 receiver shall be issued by the learned Principal Sub Judge. The persons who are now in office shall handover the administration, management, etc. and possession of properties, account books, etc. to the receiver. Learned Principal Sub Judge may also direct preparation of inventory, if any required in the matter. (h) If any further direction is required to be given to the receiver in the matter of administration and management of the trust or the conduct of election learned Principal Sub Judge shall issue such directions. THOMAS P.JOSEPH, Judge. cks