IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 FAO.No. 255 of 2006() --------------------- AGAINST THE ORDER IN IA 195/2005 IN OS.55/2004 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANTS/PETITIONERS/PLAINTIFFS: --------------------------------------------------------- 1. VARUVILAKAM DEVI TEMPLE, KORANI, EDAKODU VILLAGE. 2. SUDHAKARAN, KALIYILVILA VEEDU, PARAYATHUKONAM, REPRESENTED BY THE VARUVILAKAM DEVI TEMPLE. 3. K. PAVITHRAN, MOOLAYILVILA VEEDU, KORANI P.O., EDAKKODU VILLAGE. 4. J. ASHOKADAS, A.K. NIVAS, KORANI P.O., EDAKKODU VILLAGE. 5. K. PEETHAMBARAN, PURAMBAN CHANI VEEDU, KORANI P.O., EDAKKODU VILLAGE. 6. K. PRASANNAN, VILAYIL VEEDU, EDAKKODU VILLAGE AND DESOM. 7. M. KRISHNAN, MAKAYIRAM, EDAKKODU VILLAGE AND DESOM. 8. J. BITHENDRA, PANKAJA MANDIRAM, MELTHONNAKKAL VILLAGE, PERUMBANCHANI DESOM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN RESPONDENT(S): DEFENDANTS: --------------------------------------------- 1. SUDHAKRAN, S/O. NEELAKANDAN, CHARUMOODU DESATHU VEEDU, EDAKKODU VILLAGE AND DESOM. 2. JAGAJATHAN, MELEVILA VEEDU, EDAKKODU DESOM, AND VILLAGE. 3. SUDINAN, S/O. RAGHAVAN, MELEVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 4. SADASIVAN, MANANVILAKATHU VEEDU, EDAKKODU DESOM AND VILLAGE. 5. SATHYADEVAN, KUNNUVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 6. DIVAKARAN, MOOLAYIL VEEDU, EDAKKODU VILLAGE AND DESOM. 7. JAYAKUMAR, MELEVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 8. SREEDHARAN, S/O. MADHU, SHAJI BHAVAN, KIZHUVILAM VILLAGE, EDAKKODU DESOM. 9. UNNIKRISHNAN, S/O.KESAVAN, VATTAVILA VEEDU, POIKAMUKKU, ELAMBA VILLAGE. 10. VISWAMKUTTY, S/O.SUDHAKARAN, AKHIL NIVAS, KORANI, EDAKKODU VILLAGE AND DESOM. 11. JAYACHANDRAN, S/O.JAGANNADHAN, PUTHUVALVILA VEEDU, EDAKKODU VILLAGE AND DESOM. 12. RAJU, S/O.JAGANNATHAN, LECTURER, RESIDING AT PUTHUVALVILA VEEDU, EDAKKODU VILLAGE AND DESOM. 13. SATHEESAN, S/O.SEKHARAN, PUTHUVALVILA VEEDU, EDAKKODU VILLAGE AND DESOM. ADVS. SRI.K.P.SREEKUMAR 3, 6, 10 & 13 SRI.R.GIREESH VARMA R1, 2, 4, 5, 7, 8, 9, 11 & 12. SRI.P.M.SATHEESH SRI.P.M.SATHEESH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 255 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2009. JUDGMENT Bhavadasan, J, In a suit under Section 92 of the Code of Civil Procedure, the plaintiffs on behalf of Varuvilakam Devi Temple laid the plaint claiming that the temple is a public trust. It is pointed out by them that the trust deed, by which a few members of certain families were entitled to management of the temple cannot be accepted. They prayed for setting aside the trust deed and for framing a scheme for management of the temple. The plaintiffs before the court below filed I.A. 195 of 2005 seeking to have a receiver appointed for management and administration of the temple. 2. The defendants before the court below, who are the respondents in the petition disputed that the temple was a public one. They contended that it belonged to seven families though public were allowed to worship in the temple. According to them the temple is being managed by the members of the family as FAO.255/2006. 2 envisaged under the trust deed drawn up in 2003. According to them, there is no reason as to why a receiver should be appointed. 3. On a consideration of the rival contentions, the court below found that no grounds have been made out for appointment of a receiver and accordingly dismissed the petition. The said order is assailed in this appeal. 4. The question that arises for consideration is whether any interference is called for with the order of the court below. 5. There is a dispute regarding the nature of the temple and whether it is a public temple or a private temple. A reading of the plaint as it now stands would indicate that the temple belonged to seven families. It is averred that public worship in the temple and that with their active participation festivals are conducted in the temple. This is disputed by the contesting respondents. It is seen from the records that trust deed was created in the year 2003 for the management of the temple. That was entered into by the members of the seven families, who even according to the plaintiffs were owners of the temple. The second plaintiff before the court below has a case that even though he FAO.255/2006. 3 is one of the members of the seven families, he has not been associated in the management and administration of the temple and that he has not signed the trust deed. According to him, for the proper management and administration of the temple during the pendency of the suit, it is only proper a receiver should be appointed. 6. It may be that the public are associated with the conduct of festival in the temple. The issue is as to whether the temple is a public one or a private one is yet to be determined. It is true that the court granted leave under Section 92 of CPC to institute a suit. But the respondents have strongly contended that it is only a private temple and the suit under Section 92 CPC is not maintainable. This issue has been relegated to be decided at the final stage. 7. There is no dispute that the appointment of receiver is a very harsh remedy and seldom resorted to. There should be very strong grounds to show that the appointment of a receiver is absolutely necessary for the protection of the subject matter of the lis. It is not a matter of course. The receiver can be appointed only under the FAO.255/2006. 4 circumstances where the subject matter of the suit is under threat of being destroyed. The lower court has observed that on a consideration of the available materials, there is nothing to show that the appointment of a receiver is necessary. 8. It is interesting to note that no specific allegation regarding mismanagement and mal administration is made in the complaint. The main attack seems to be against the trust deed executed in the year 2003, which according to the petitioners is not binding on them. They want a scheme to be framed. The temple has been existing for a long period, and trust deed incorporating the method of administration and management of temple is drawn up in 2003. Whether it is binding on the plaintiffs is a different question. But there is in fact a document, on the basis of which the administration is being carried on. No convincing materials are placed before the court below to come to the conclusion that it is absolutely necessary to appoint a receiver. Appointment of receiver involves disturbing of persons in possession and that can be resorted to only in extreme cases. There is nothing to show that the affairs of the temple are under threat due to the FAO.255/2006. 5 mismanagement or mal administration carried on in terms of the trust deed. The court below was therefore fully justified in declining to grant the relief of appointment of a receiver. No grounds are made out to interfere with the said finding and this appeal stands dismissed confirming the order of the court below. P.R. Raman, Judge P. Bhavadasan, Judge sb.