IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 30082 of 2009(O) -------------------------- OP.1241/2009 of I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONERS: --------------- 1. MR.E.P.GEORGE, AGED 44 YEARS, SON OF LATE SRI.E.P.PAVOO, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, 36/1686, JUDGES AVENUE, KALOOR, COHIN-682 017. 2. MR.SANTHOSH THOMAS KANDAN, AGED 49 YEARS, SON OF SRI.THOMAS, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, KANDAN HOUSE, THEVARA.P.O, COCHIN-682 013. 3. MR.K.C.RAJU, AGED 45 YEARS, SON OF SRI.KALIYATH LAWRENCE CYRIL, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, KENT CONSTRUCTIONS (P) LTD., PAVURETH BUILDINGS, IST FLOOR, OPPOSITE CHOICE TOWERS, NEAR MANORAMA JUNCTION, KOCHIN-682 036. 4. MR.JOSE CHACKO PERIYAPPURAM, AGED 51 YEARS, S/O.SRI.CHACKO MATHEN PERIYAPURAM, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, 3-B LINK MANOR, OLD RAILWAY STATION ROAD, COCHIN-682 018. 5. MR.TOGI MATHEW, AGED 46 YEARS, SON OF SRI.MATHEW, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, T & T HOMES, THALIATH CHAMBERS, IYYATTIL JUNCTION, COCHIN-682 011. 6. MR.TAJAN CYRIL, AGED 47 YEARS, SON OF SRI.KALIYATH LAWRENCE CYRIL, TRUSTEE, KALABHAVAN EDUCATIONAL TRUST, 33/1455, VENNALA, COCHIN-682 028. (CNTD...2) WP(C).No. 30082 of 2009(O) ::2:: BY ADV. MR.ANIL D. NAIR MR.ANIL S.RAJ MS.K.N.RAJANI MS.RADHIKA RAJASEKHARAN P. MS.ANILA PETER MS.NIVEDITA A.KAMATH RESPONDENTS: --------------- 1. MR.P.P.ZIBI JOSE, 61/2939, TENROSE, SRM ROAD, COCHIN-682 018. 2. MR.JAMES KULATHUNKAL, JAMESPHIL, SOUTH KALAMASSERY, COCHIN-682 030. 3. MR.GEORGE G.POOTHICOTE, C-12B, WILLINGTON ENCLAVE, CHAKOLAS HABITAT, THEVARA.P.O, COCHIN-682 013. ADV. MR.ANIL XAVIER FOR R1 MR.M.SHAHEED AHMAD FOR R1 MR.M.RISHIKESH SHENOY FOR R1 MS.K.INDU (POURNAMI) FOR R1 MR.BIJU ABRAHAM FOR R3 MR.S.SREEKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP ON ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30082 of 2009 - O --------------------------------- Dated this the 10th day of November, 2009 J U D G M E N T The writ petition is filed by the respondents 1, 3, 4, 6, 7 and 8 in O.P.No.1241 of 2009 on the file of the 1st Additional District Court, Ernakulam. The above O.P. was filed by the first respondent under Section 34 of the Indian trust Act, 1882, in respect of a trust namely, Kalabhavan Educational Trust. The respondents have challenged the maintainability of the petition contending that the above trust had been constituted for a charitable purpose and it is a public trust. Petition under Section 34 of the Indian Trust Act, which is applicable only in the case of private trust has no application to the trust involved in the proceedings, is the crux of the contention canvassed by the petitioners in the writ petition for challenging its maintainability. On the application moved by the respondents for considering the issue of maintainability preliminarily, the court below, after hearing both sides, passed Ext.P6 order relegating consideration of that issue in the trial of the petition expressing a view that at this stage without taking evidence, a definite finding on the W.P.(C).No.30082 of 2009 - O 2 question whether the trust is a public or private trust cannot be entered. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. At the time of hearing the counsel for the first respondent/petitioner in the O.P. submitted that in the drafting of the original petition some defects have crept in and such formal defects are likely to impair the interest of the petitioner in the O.P. in seeking the reliefs canvassed. Whereas the trust, Kalabhavan Educational Trust is a private trust, by inadvertence in the O.P., reference had been made to the trust as a public trust, and that being so, it is necessary to withdraw the petition with liberty to file a fresh petition curing such mistakes, is the submission of the counsel. Learned counsel therefore sought permission from this Court for withdrawing the petition with liberty to file a fresh petition. Though the request is opposed to by the learned counsel appearing for petitioners in the writ petition contending respondents in the court below, having regard to the facts and circumstances involved and also more W.P.(C).No.30082 of 2009 - O 3 particularly the allegations raised in the O.P., copy of which is produced as Ext.P1, in the backdrop that procedural defects should not impair the rights of a party to vindicate his lawful rights before a court, I find permission sought for has to be accorded to the first respondent/petitioner in the O.P. to withdraw the petitioner and file a fresh O.P. So much so, permission is accorded to the first respondent for withdrawing O.P.No.1241 of 2009 on the file of the 1st Additional District Court, Ernakulam, granting him liberty also to file a fresh petition on the same cause of action. Interim order passed by the court below, copy of which is produced as Ext.p3, shall continue to be in force for a period of ten days from the date of this judgment. Writ petition is disposed of as above. Hand over a copy of the judgment to the counsel on both sides and send a copy to the court concerned, forthwith. The court below shall strike off the O.P. from its file as withdrawn. S.S.SATHEESACHANDRAN, JUDGE. bkn/-