IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 FAO.No. 45 of 2010() -------------------- IA. NO, 175/10 IN OS.82/1999 of SUB COURT, CHERTHALA .................... APPELLANT/PETITIONERS-PLAINTIFFS ---------------------------------------------------- 1. V.N.SAVITHRI, RESIDING AT KUTTANCHERRY MANAYIL, KUMARANALLOOR.P.O,VADAKKANCHERRY. 2. UNNIKRISHNAN, ALATHIYOOR NAMBIYILLAM, ALATHOOR P.O, THIRUR, MALAPPURAM DISTRICT. 3. GIRIJA ALATHIYOOR NAMBIYILLAM, ALATHOOR P.O, THIRUR, MALAPPURAM DISTRICT. 4. MAHESWARY ALATHIYOOR NAMBIYILLAM, ALATHOOR P.O, THIRUR, MALAPPURAM DISTRICT. 5. JAYASSREE ALATHIYOOR NAMBIYILLAM, ALATHOOR P.O, THIRUR, MALAPPURAM DISTRICT. 6. NARAYANAN NAMBOOTHIRI, PANTHAVOOR MANA, KANJIRAMKODU.P.O, VADAKKANCHERRY. 7. RAJAN NAMBOOTHIRI, PATHAVOOR MANA, KANJIRAMKODU.P.O, VADAKKANCHERRY. 8. LEELA ANTHARJANAM,KATTANCHERRY MANAYIL, KUMARANELLOOR P.O, VADAKKANCHERRY. 9. HARAN NAMBOOTHIRI OF KATTANCHERRY MANAYIL,KUMARANELLOOR.P.O,VADAKKANCHERRY. 10. NANDINI, KATTANCHERRY MANAYIL, KUMARANELLOOR P.O, VADAKKANCHERRY. 11. UMADEVI, KATTANCHERRY MANAYIL, KUMARANELLOOR.P.O,VADAKKANCHERY. 12. SUBHADRA KATTANCHERRY MANAYIL, KUMARANELLOOR.P.O,VADAKKANCHERY. 13. NARAYANAN NAMBOOTHIRI KATTANCHERRY MANAYIL,KUMARANELLOOR.P.O,VADAKKANCHERY. 14. K.SAVITHRI KATTANCHERRY MANAYIL, KUMARANELLOOR.P.O,VADAKKANCHERY 15. V.INDIRA, PANTHAVOOR MANA, KANJIRAMKODE.P.O, VADAKKANCHERRY. 16. JAYANANDAN NAMBOOTHIRI, KUTTANCHERRY MANA,KUMARANALLOOR P.O, VADAKKANCHERRY. 17. SREEDEVI ANTHARJANAM, ALATHIYOOR NAMBIYILLAM, ALATHOOR P.O,THIRUR, MALAPPURAM DISTRICT. 18. K.RADHA, KUTTANCHERRY MANA, KUMARANALLOOR P.O,VADAKKANCHERRY. 19. SOBHANA,KUTTANCHERRY MANA, KUMARANALLOOR P.O,VADAKKANCHERRY. 20. HARI NAMBOOTHIRI,KUTTANCHERRY MANA, KUMARANALLOOR P.O,VADAKKANCHERRY. 21. K.SREEDEVI,KIZHAKKEKUNNEL MANAYIL, KANJIRAMKOTTU, VADAKKANCHERRY. 22. SAVITHRI ANTHARJANAM, ALATHIYUR MANAYIL, CHOONDAL, KUNNAMKULAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH RESPONDENT(S): RESPONDENTS-DEFENDANTS ------------------------------------- 1. V.N.SEKHARA PANICKER, VAITHAYATTU PUTHENPURAYIL,VARANAD.P.O, CHERTHALA. 2. N.S.S.KARAYOGAM NO.2486, MARUTHORVATTOM P.O, REPRESENTED BY ITS SECRETARY. 3. MARUTHORVATTOM SREE DHANWANTHARI TRUST, REPRESENTED BY ITS SECRETARY. 4. SRI.VINAYACHANDRAN,N.S.S.KARAYOGAM NO.2486, MARUTHORVATTOM.P.O. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R2-4 SRI.B.UNNIKRISHNA KAIMAL FOR R2-4 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ FAO. No. 45 of 2010 ------------------------------------------- Dated this the 29th day of March, 2010 J U D G M E N T Pius C. Kuriakose, J. The plaintiffs in a suit seeking for the amendment and modification of a scheme framed by the court as per decree in OS. No. 23/88 of the court, viz., the Sub Court Cherthala, being aggrieved by the order of the Sub Court dismissing the application filed by them for an order of injunction restraining the trust – Maruthorvattom Sree Dhanwanthari Trust from appointing a Manager have filed this appeal. The appellant plaintiffs are members of a Namboothiri Illom by name Velludu Illom. The plaintiffs Illom is the owner of the plaint schedule property whereupon the Maruthorvattom Sree Dhanwanthari Temple and Bhagavathi Temple are situated. According to the plaintiffs, Maruthorvattom Sree Dhanwanthari Temple, is the family temple of their Illom. The temple was being managed by members of the Illom FAO. 45/10 - 2 - themselves. While so, suit O.S.23/88 was filed before the Sub Court, Cherthala by a few members of the Illom for various reliefs including the framing of a scheme for the administration of the temple. The suit was compromised and accordingly the scheme was settled for the administration of the temple. On the terms of the scheme there has to be a President, Manager, Secretary and two nominees of the two branches of the Illom and eight nominees elected by the third defendant, viz., the NSS Karayogam No. 2486 Maruthorvattom. As per the compromise decree the second defendant in that suit was nominated as the President of the Trust and the first defendant as the Manager and both the President and the Manager are to hold office during their entire lifetime. There is a clause in the scheme providing for filling up of vacancies of President and Manager due to their death or resignation. The allegation of the plaintiffs in the present suit is that the scheme was framed with the avowed object FAO. 45/10 - 3 - to protect the interest of the temple and its property and that of the Illom. Presently, the income from the temple is not being properly accounted and there is maladministration of the trust. It is alleged that the members of the Illom are attempted to be excluded from the administration of the temple. According to the appellants, the present suit is filed seeking modification of the scheme which is permitted under the scheme itself. In the meanwhile, the Manager fell ill. The responsibilities of the Manager as per the scheme are very wide and he is responsible for the day to day administration of the temple and its properties IA.2133/2009 was filed requesting the court to appoint a fresh Manager from among the members of the Illom. The above IA was dismissed. But the High Court considering a writ petition filed by the appellants challenging the above order permitted the appellants to move the Sub Court if the NSS Karayogam is attempting to appoint a new Manager. According to the appellants, the first defendant, present FAO. 45/10 - 4 - Manager has not submitted any objection before the court tendering his resignation nor has the court discharged him from his duties as Manager. The first defendant continues to be the Manager. The third defendant has no authority to appoint a new Manager. The third defendant has published a notice convening its general body for electing a new Manager of the Trust. The above act is illegal. Unless and until the first defendant tenders his resignation before the court and the court accepts his resignation and releases him from the post of Manager he has to continue as Manager. It is on these allegations that the application is filed by the appellant for temporary injunction. 2. The second defendant on entering appearance in the IA filed counter affidavit. It was contended that the petition is ill-conceived and is yet another attempt to stall the smooth functioning of the temple Trust. Petitioners are bound by the terms of the compromise decree and hence are not entitled to file the present petition. The intention of FAO. 45/10 - 5 - the petitioners is to bring the affairs of the temple to a stand still. The scheme framed by the court is sufficient for meeting all contingencies. The allegations of mismanagement and mal-administration are disputed. It was contended that the members of the Illom are properly represented and there has been no attempt to exclude them from the administration. The suit is filed at the instigation and expenses of some miscreants in the locality who have their own axe to grind against the second counter petitioner in the IA. The president of the trust expired long ago and the person chosen by the Karayogam as president in accordance with the scheme took over as President and is functioning as such. The president is not made a party to the petition. It was contended that the the Manager tendered his written resignation on 16-10-2009 due to serious health and oldage related problems. The scheme itself provides that the second counter petitioner Karayogam has to do the needful under such situations. Accordingly, FAO. 45/10 - 6 - the Karayogam has taken steps for election of a new manager. The election is scheduled to take place on 7-2- 2010. The publications in that connection are made as early as on 6-1-2010. The Secretary of Cherthala NSS Union is appointed as the election officer. Writ petition filed before the High Court challenging the order in IA. 2133 of 2009 was dismissed by the High Court. Election process has already commenced and the same is not liable to be restrained on any count. It was the Karayogam and not the third counter petitioner which published election notice in complete compliance with clause (7) of the Scheme. The Scheme does not contemplate submission of resignation letter before the court. The contingencies contemplated by the scheme for appointing new manager has arisen, Unless and until the scheme is modified, the affairs of the trust are governed by the scheme as it presently stands. Hence it was requested that the petition be dismissed. 3. The third counter petitioner trust represented by its FAO. 45/10 - 7 - secretary filed a separate statement of objections raising contentions almost similar to the contentions raised by the counter petitioner Karayogam. It is urged therein that appointment of new manager is absolutely necessary in the interest of the trust. All necessary formalities for conduct of election has already been taken and the present attempt to stall the election may not permitted. 4. The learned Subordinate Judge on considering the rival contentions and after hearing the parties dismissed the application taking the view that no prima facie case is made out for granting injunction and that if the injunction sought for is granted, irreparable harm and injury is going to be occasioned to the administration of the temple. According to the learned Sub Judge, the balance of convenience is in favour of declining injunction and accordingly dismissed the injunction petition. 5. Before us Sri. S.Sreekumar, learned counsel for the appellant addressed very strenuous arguments on the basis FAO. 45/10 - 8 - of the various grounds raised in the memorandum of appeal. All the submissions of Mr.Sreekumar were resisted by Sri.KRB.Kaimal, senior counsel for the contesting respondents. Having anxiously considered the rival submissions, we are of the view that there is no warrant for interfering with the impugned order. Admittedly the scheme is in currency for the management of the temple trust. Importantly, the scheme was formulated on the basis of a compromise to which the members of the appellants' Illom are also parties. The scheme certainly provides for filling up of vacancies to the important post of President and Manager in two contingencies, viz., death and resignation. In the instant case the definite case of the contesting respondents is that the former Manager tendered his resignation on 16- 10-2009 and that the request of the trust the Karayogam has taken steps for electing a Manager and a notice was published as early as on 6-1-2010 convening the general body. The records will show that an election officer was FAO. 45/10 - 9 - appointed and election has been scheduled also. Exts.B1 and B2 will show that the election process has started. Ext.B3 resignation letter is also strongly relied on. But the case of the appellant is that B3 is a fabricated or forged document. The learned Subordinate Judge rightly found that. The question whether B3 is fabricated can be decided only after trial. Sri.S.Sreekumar would highlight before us certain documents which will show that the Manager who is alleged to be incapacitated from participating in the management is actually participating in the management and affairs of another temple. The argument of the learned senior counsel for the respondent is that the name of the former manager came to be shown in the pamphlet pertaining to the festival in the other temple only in view of his association with that temple in the previous years. According to him, the resignation letter is a genuine one and once the suit comes up for trial the same will be established to be a genuine one. The submission of the FAO. 45/10 - 10 - learned senior counsel is convincing. 6. We are of the view that on the materials which were available before the learned Subordinate Judge, the learned Judge was justified in declining to restrain the election, the process for which had already started. At the same time, we feel that as members of the Illom in which the proprietory interest of the trust property continues to be vested, the appellants are justified in insisting that the new Manager who according to the respondents, is already elected should submit accounts to the court. We will also notice that we did not come across any material which indicates that the allegations of misappropriation levelled against the present management is correct. Under the above circumstances, we dispose of the FAO issuing the following directions. 1) The Manager presently elected shall submit monthly accounts to the court with notice to all the parties in the suit. FAO. 45/10 - 11 - 2) The learned Subordinate Judge shall expedite the trial and will ensure that the suit is finally disposed of early and at any rate within six seeks of the court reopening after summer holidays. The court shall dispose of the suit on the basis of the evidence which comes on record in the suit and will not be influenced by the observations and findings in the impugned order and by the circumstance that the same is confirmed by us. It should be remembered that the findings in the impugned order have been entered only for the purpose of deciding the interlocutory application. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-