IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 AS.No. 300 of 1996() -------------------- OS.70/1991 of SUB COURT, KASARAGOD .................... APPELLANT(S): DEFENDANTS: ------------------------------------------------ *1. VITTAL BHAT, REPRESENTATIVE, S/O.RAMA BHAT, 18 PETAS OF SREEMAD ANANTHESHWAR TEMPLE, ELECTORAL BODY, RETIRED MANAGER, MANJESHWAR TEMPLE, P.O.MANJESHWAR, KASARAGOD TALUK AND DISTRICT. (D5). D I E D - LRS IMPLEADED: 2. N.PADUNRANGA BHAKATA, REPRESENTATIVE,MERCHANT, S/O. DEVARAYA BHKATHA, RESPECTIVE OF ELECTORAL BODY OF SREEMATHA ANANTHESHWAR TEMPLE, KOTTACHERY, P.O. KANHANGAD, KASARAGOD DISTICT (D6). 3. K.NAMADEVA MALYA, REPRESENTATIVE, MERCHANT, S/O. MADHAVA MALAYA, REPRESENTATIVE OF ELECTORAL BODY OF SREEMATHA ANANTHESWHWAR TEMPLE, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, P.P. KASARAGOD (D7). 4. K.GOVINDARAYA ACHARYA, REPRESENTATIVE,MERCHANT, S/O.VISHWANATHA ACHARAYA, GANGOLLI, DAKSHINA KANNADA DISTRICT, KARNATAKA STATE, P.O.GANGOLLI.(D9). 5. K.RAVEENDRA BHAT, REPRESENTATIVE, S/O.SANJEEVA BHAT, TEACHER, KARKALA, P0.O. KARKALA, DEKSHINA KANNADA DISTRICT,, KARNATAKA STATE.(D12). 6. B.LAKSHMANA BALIGA, REPRESENTATIVE, S/O.ACHUTHA BALIGA, MERCHANT, POST BANTHAL, DESKHINA KANNADA DISTRICT, KARNATAKA STATE (D14). 7. M.SUDHAKARA PAI, REPRESENTATIVE, S/O.VENKATESHA PAI, TEACHER, P.O. BELTHANGADI, DEKSHINA KANNADA DISTRICT, KARNATAKA STATE.(D15). Kss ..2/- ..2..... A.S.NO.300/1996 8. K.ACHUTHA PRABHU, REPESENTATIVE, S/O.M.MUKUNDA PRABHU, MERCHANT, P.O.PUTHUR DEKSHINA KANNADA DISTRICT, KARNATAKA STATE (D16). 9. GIRIDHARA HEGDE, REPRESENTATIVE, S/O.RAMAKRISHNA HEGDE, MERCHANT, P.O. SIULLIYA, DEKSHINA KARNATAKA DISTRICT, KARNATAKA STATE (D17). 10. G.RAMADAS PRABHU, REPRESENTATIVES, S/O.G.VASUDEVA PRABHU, MERCHANT, P.O. GURUPURA, DEKSHINA KANNADA DISTRICT, KARNATAKA STATE (D19). 11. K.RAJAKAMATHA, REPRESENTATIVE, S/O. MANJUNATHA KAMATHA, KAMATH OPTICALS, P.M. RAO ROAD, MANGALORE, POST MANGALORE, DEKSHINA KANNADA DISTRICT, KARNATAKA STATE (D20). *A12 IMPLEADED: A12. M.YESHWANTHA BHAT, S/O.LATE M.VITTEL BHAT, NEAR VANAM PREMISES, GUDDAKERY, MANJESHWAR, KASARAGOD TALUK. (*LEGAL HEIR OF THE 1ST APPELLANT IS IMPLEADED ON ADDL.12TH APPELLANT VIDE ORDER DTD. 22/08/2005 ON IA.NO.2113/2005) BY ADVS. SRI.P.K.MUHAMMED, SRI. O.D.SIVADAS. RESPONDENT(S): PLAINTIFF AND DEFENDANTS: ------------------------------------------------------------------------- 1. B.M. SUBRAYA HEGDE, TRUSTEE, SREEMAD ANANTHESWARA TEMPLE, MANJESHWAR, S/O.VASUDEVA HEGDE, MANAGER AND CORRESPONDENT OF SREEMATHA ANANTHESWAR TEMPLE, MANJESHWAR, G.S.BRAHMIN, JOB TYPIEST, LANDHOLDER AND CULTIVATOR, RESIDING AT BANGARAMANJESHWAR, BANGARAMANJESHWAR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. (PLAINTIFF). 2. K.SREEDHARA KAMATH, S/O,VITTAL KAMATH, VICE PRESIDENT OF COUNCIL TRUSTEES, SREEMAD ANANTHESWAR TEMPLE, MANJESHWAR, P.O. MANJESHWAR, LANDHOLDER, RESIDING AT KOTSHWAR, P.O. KOTESHWAR, DAKSHINA KANNADA.(D2). Kss ..3/- ..3... A.S.NO.300/1996 3. M.NAMADEVA SHENOY, TREASURER OF BOARD OF TRUSTEES, SREEMATHA ANANTHESWAR TEMPLE, MANJESHWAR, LANDHOLDER, RESIDING AT PANDESHWAR, P.O.MANGALORE, DAKSHINA KANNADA (D3). 4. M.PRAKASH NAYAK, TRUSTEE, LANDHOLDER, RESIDING AT MANJESHWAR, P.O. MANJESHWAR, KASARAGOD TALUK. (D4). 5. K.GOVINDARAYA KAMATH, REPRESENTATIVE, S/O.K.VITTAL KAMATH, PROFESSION NOT KNOWN, RESIDING AT KOTESHWAR, DAKSHINA KANNADA DISTRICT (D8). 6. K.SREENIVASA BALIGA, REPRESENTATIVE, S/O.VASUDEVA BALIGA, EMPLOYEE IN STATE BANK OF INDIA, UDUPI BRANCH, DEKSHINA KANNADA DISTRICT (D10). 7. M.GOKULA DAS BHAT, ORIENTAL ASSURANCE COMPANY, HASSAN, KARNATAKA STATE.(D11). 8. P.SADANANDA BHAT, REPRESENTATIVE, S/O.SREEDHARA BHAT, MERCHANT, P.O.MOODABIDIRI, DAKSHINA KANNADA DISTRICT, KARNATAKA STATE (D13). 9. K.RAMANATHA BHAT, CLERK, SYNDICATE BANK, DANDELI, KARNATAKA STATE. (D18). 10. VITTAL DASA BALIGA, REPRESENTATIVE, S/O.K.DEVAPPA BALIGA, CLERK, SARADAPRESS, CAR STREET, MANGALORE, DEKSHINA KANNADA DISTRICT, KARANATAKA STATE (D21). 11. K.VARADA MALYA, REPRESENTATIVE, S/O.SREENIVASA MALYA, MANAGER, GANESH BEEDI WORKS, ULLAL, POST ULLAL, DEKSHINA KARNADA DISTRICT, KARNATAKA STATE (D22). R4 BY ADVS. SRI. N.GOVINDAN NAIR, SRI.UNNIKRISHNA KURUP SRI.P.THOMAS JOSEPH, SRI.S.K.THAMPI. R12 BY ADV. SRI.KODOTH SREEDHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.2038/1996 IN AS.NO.300/1996 DISMISSED 12/08/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------------------------------------- A.S.No.300 OF 1996 --------------------------------------------------------- Dated this the 12th day of August, 2010. JUDGMENT This is an appeal preferred by the defendants in O.S.No.70 of 1991 of the Subordinate Judge's Court, Kasaragod. The suit is one for damages. The plaintiff is the elected trustee of Sreemad Anantheshwar Temple, Manjeshwar. The temple was managed by counsel of trustees elected as per the scheme framed which had attained finality by judgment of the High Court. As per the scheme, the elected trustees have the right to continue in office for a period of 5 years. It is managed by the 1st defendant. As the President of the counsel of trustees he colluded with others and passed a resolution and removed the plaintiff from the office of the trusteeship. Thereafter, the plaintiff was not permitted to participate in the management of the temple. Therefore, the plaintiff moved a suit in O.S.No129 of 1990 before the Principlal Munsiff, Kasaragod and the court allowed the prayer. But, in spite of the same, the defendants did not permit and so the plaintiff moved a suit in O.S.No.203 of 1990 before the Munsiff's Court Kasaragod and the said court passed order of interim injunction restraining the defendants A.S.No.300 OF 1996 2 from electing a new trustee in the place of the plaintiff. This was confirmed by the High Court. But the defendants did not heed to the request the plaintiff and therefore, he has suffered damages and so the suit. 2. On the other hand defendants would contend that there were large number of complaints about the plaintiff and therefore he was removed from the trusteeship and therefore he is not entitled to any compensation as damages. The trial court on consideration of the materials, granted a decree in favour of the plaintiff for Rs.30,000/- with 12% interest. It is against that decision the defendants have come up in appeal. 3. Heard the learned counsel for appellants as well as the respondents. 4. It is the case of the plaintiff that he is an elected trustee as per the scheme governing the matter. While he was functioning due to the attitude of the 1st defendant he along with others passed a resolution and removed the plaintiff from the trusteeship. The plaintiff filed a suit O.S.No. 129 of 1990 against the said resolution which was decreed in his favour. In spite of the decree plaintiff was not permitted to participate and A.S.No.300 OF 1996 3 therefore, he moved O.S.No.203 of 1990 and obtained an order of injunction restraining any other person from being newly inducted into the trusteeship. An injunction was granted. It was confirmed in appeal by the Subordinate Judge's Court as well as the High Court. The copy of the order of the High Court in Ext.A3, i.e., in C.R.P.No. 2261 of 1990. This Court by its judgment dated 22.11.1990 confirmed the order of the Sub Judge. This Court also in paragraph 3 observed that “as Ext.A1 scheme governs the Temple and as it is specifically provided in Clause 3 that the trustees elected shall hold office for a period of 5 years and as there is no provision for removal of the trustees by the representative body who elected them, the principle laid down in Narayanan Nair V. Joint Registrar, (1982 KLT 602) cannot have any application. The court also found that by referring to Ext.A1 scheme it can not be held that there is a power vested with the representative body, impliedly, even to remove the trustees. By virtue of the judgment earlier passed annulling the resolution and again by passing an order with injunction the courts below have made it clear that by interpreting the scheme the elected trustee is entitled to conduct for a period of 5 years. A.S.No.300 OF 1996 4 Admittedly, after 25.2.1990 the plaintiff has been prevented from participating in the management of the temple which he is legitimately entitled to do under the scheme. Therefore, the conduct of the defendants has caused him loss in the sense that he had been deprived of the power which he has under the scheme. Therefore, he is entitled to claim damages. As it is a well settled principle in tort there can be damage without injury and an injury without damage. So the plaintiff who is held in esteem by virtue of the position of a trustee is deprived of holding that post by the deliberate conduct of the defendants. Therefore, the action for damages is sustainable in law as well as on facts. 5. The next point is regarding limitation. The prevention took place from 25.2.1990. The suit is filed on 22.3.1991. The learned counsel for the appellants would submit before me, part 7 of the Limitation Act and Articles therein would govern the period of limitation. I am afraid that the said argument cannot be accepted. I have gone through the various Articles in part 7 and it does not relate to any action of this nature. So the action will come as one for which no specific time bar is provided under A.S.No.300 OF 1996 5 the statute. Therefore the residuary Article 113 of the Limitation Act will apply and, therefore, the plaintiff will be entitled to file the suit within 3 years. Further, as observed by the court below he had been knocking at the doors of justice and in spite of the direction of the court the defendants refused to give him the right which he is entitled to and, therefore, Section 14 of the Limitation Act also comes to his rescue so it has to be held that the suit is not barred by limitation. 6. Now, lastly on the quantum. It is very difficult to fix quantum precisely in this type of cases. It is true that a person who is elected as a trustee was not permitted to perform as a trustee and really it is the mental injury that is to be looked into. Taking into consideration the facts and circumstances and also the fact that his 5 years term already expired I feel as a gesture for the loss sustained by him a sum of Rs.20,000/- with 6% interest from the date of decree can be granted in his favour. Therefore, the appeal is partly allowed by modifying the decree amount from Rs.30,000/- to 20,000/- and reducing the interest from 12% to 6%. In the result, a revised decree is passed whereby the A.S.No.300 OF 1996 6 plaintiff is granted a decree for realisation of Rs.20,000/- with 6% interest from the date of suit till realisation with proportionate costs from defendants 1 to 22. As far as, the appeal is concerned, the parties are directed to bare their respective costs. M.N.KRISHNAN, JUDGE mns