IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRP.No. 375 of 2009 ----------------------------- (OS.NO.3/2003 OF I ADDL. DISTRICT COURT, TRIVANDRUM) .................... REVISION PETITIONER/ DEFENDANTS 1 & 2: ---------------------------------------------------------------- 1. SREE MUTHARAMMAN COIL COMMITTEE, PETTAH, TRIVANDRUM, REPRESENTED BY ITS PRESENT SECRETARY K.CHANDRKUMAR. 2. C.GOPALAKRISHNAN,S/O.CHELLAPPAN CHETTIAR, PRESIDENT, SREE MUTHARAMMAN COIL COMMITTEE, PETTAH, THIRUVANANTHAPURAM. BY ADVS. MR.R.S.KALKURA, MR.M.S.KALESH, MR.HARISH GOPINATH, MR.V.VINAY MENON, SMT.K.V.P.JAYALEKSHMY, MR.M.AJAY (IRUMPANAM), SMT.M.C.SHIJIMOL, SMT.A.V.PRIYA. RESPONDENTS/PLAINTIFFS 1 & 2 AND DEFENDANTS 3 TO 11: ----------------------------------------------------------------------------------------- 1. PRASAD CHANDRAN P.S., AGED 63 YEARS, S/O MADASWAMY CHETTIAR, T.C.29/375, UTHRAM, THENGAPPURALALANE, THIRUVANANTHAPURAM. 2. C.SASIKUMAR, AGED 46 YEARS, S/O.CHELLAPPAN CHETTIAR, T.C.8/560, PANAYIDOM VILAKATHU MELEVEEDU, SREEKARIYAM, ULLOOR VILLAGE, THIRUVANANTHAPURAM-17. 3. SHANMUGHAM CHETTIAR, VICE PRESIDENT, SREE MUTHARAMMAN COVIL COMMITTEE, T.C.29/217, M.S.COTTAGE, LEKSHMI VILAKOM, THENGAPPURA LANE, PETTAH P.O., THIRUVANANTHAPURAM. C.R.P. NO. 375/2009: 4. C.NATARAJAN, SECRETARY, SREE MUTHARAMMAN COVIL COMMITTEE, T.C.29/370, THENGAPPURA LANE, PETTAH P.O., THIRUVANANTHAPURAM. 5. GOPALAKRISHNAN, JOINT SECRETARY, SREE MUTHARAMMAN COVIL COMMITTEE, T.C.29/370, THENGAPPURA LANE, PETTAH P.O., THIRUVANANTHAPURAM. 6. NARAYANAN CHETTIAR, TREASURER, SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE, PETTH P.O., THIRUVANANTHAPURAM. 7. RENGAN, MEMBER OF SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE, PETTH P.O., THIRUVANANTHAPURAM. 8. N.VIJAYAN, MEMBER OF SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE PETTH P.O., THIRUVANANTHAPURM. 9. MURUKAN, MEMBER OF SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE PETTH P.O., THIRUVANANTHAPURAM. 10. SUBRAMONIAN CHETTIAR, MEMBER OF SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE, PETTH P.O., THIRUVANANTHAPURAM. 11. NATARAJAN C., PATRAON OF SREE MUTHARAMMAN COVIL COMMITTEE, ARA-187, SREE SYLAM, VILAYIL LANE, PETTH P.O., THIRUVANANTHAPURAM. 12. REGHU, S/O.CHELLAPPAN CHETTIAR, TC.29/155, VARUVILAKATHU VEEDU, KAVARADI ROAD, THIRUVANANTHAPURAM. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------- C.R.P.No.375 OF 2009 ----------------------- Dated this the 7th day of July 2009 ------------------------------------- O R D E R The revision petition is filed by the defendants 1 and 2 in O.S No.3/2003 on the file of the Additional District Court, Thiruvananthapuram. The above suit is one for settling a scheme over a religious trust more particularly a temple, and it has been instituted after obtaining leave of the court under Section 92 of the Code of Civil Procedure. The leave for instituting the suit under Section 92 of the Code of Civil Procedure is granted by the court as early in 2004. The petitioners, defendants 1 and 2 have objected to the leave so granted. They have challenged the maintainability of the suit contending that it is not a public trust covered by Section 92 of Code of C.R.P.No.375 OF 2009 2 Civil Procedure, but only an association in respect of which the reliefs under the above Section cannot be claimed. Petitioners wanted the court to consider the maintainability of the suit as a preliminary issue for which a separate application was filed as early on 15/11/2005. That application was however pressed into service nearly four years later, and the learned District Judge after hearing both sides, passed the impugned order in which according to the petitioner some conclusive findings have been made expressing a view that the subject matter covered by the case fall within the scope of a public trust, and as such the leave already granted under Section 92 of Code of Civil Procedure cannot be impeached. The question of maintainability challenged was appreciated by the court in a different perspective and the observations made in the impugned order are likely to cause prejudice to the petitioner is the C.R.P.No.375 OF 2009 3 grievance canvassed 2. After having heard the learned counsel at length I find that notice to the respondents is not necessary, and it is dispensed with. Taking note of the submissions made by the counsel for the petitioner, I notice the challenge was against the maintainability of the suit, in which the leave granted under Section 92 C.P.C was also impeached. I find the question as to whether the subject matter covered by the suit is a public trust on the disputed facts presented in the case deserved to be appreciated after taking evidence affording reasonable opportunity to both sides to produce materials in support of their respective case. It is submitted that the trial of the suit is fixed for commencement on 08/07/2009. It is further submitted that maintainability of the suit is one among the issues raised for adjudication by the C.R.P.No.375 OF 2009 4 court. That being so, that issue has to be resolved in the nature of the disputes raised with other issues raised for adjudication. So much so whatever observations made by the court in the impugned order challenged in the revision should not reflect or have any bearing on the determination of the issues covered by the suit, after the parties are given opportunity to adduce evidence. The learned counsel for the petitioners submit that since the court has already expressed a view in the impugned order that leave granted was proper, a further examination on the basis of the evidence will not be gone into unless this court makes an observation for doing so. Needless to point out that in view of the challenge on the maintainability of the suit put forward by the defendants, the question of leave which had been granted for instituting the suit may arise for consideration whether such a suit would lie under C.R.P.No.375 OF 2009 5 Section 92 of Code of Civil Procedure on the basis of evidence to be tendered in the case. The impugned order will not stand in the way of the court in examining the question after recording the evidence. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv