IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 RSA.No. 142 of 2010() --------------------- AS.11/2006 of ADDL. DISTRICT COURT, THALASSERY OS.542/2003 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- P.PRADEEP KUMAR, AGED 46 S/O.NARAYANAN BUSINESS, MONALISA, PILLAYAR KOVIL COMPLEX, KANNUR. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- SREE PILLYAR KOVIL DEVASWAM, HAVING ITS OFFICE AT, SREE PILLYAR KOVIL BUILDING,IN KANNUR MUNICIPALITY, REPRESENTED BY ITS EXECUTIVE OFFICER, KANNUR. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2010, ALONG WITH RSA NO. 351 OF 2010. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.142 OF 2010 AND R.S.A No. 351 OF 2010 -------------------------------- Dated this the 7th day of September 2010 JUDGMENT These two second appeals are filed against the concurrent decision rendered by the courts below, by two tenants impeaching the decree of injunction, both prohibitory and mandatory, granted in favour of the landlord, the respondent/plaintiff. The respondent, a devaswom, through its executive officer, instituted two separate suits namely O.S No.542/2003 and O.S No.588/2003 against the respective appellant/tenant alleging that violating the municipal rules and encroaching upon the parking area they have carried out additions to the tenanted premises. The local authority issued notices to the devaswom and also to both its tenants directing them to remove the unauthorised constructions. A further notice issued by the devaswom to the tenants to comply with the directions given in the notices of the local authority, was responded by the tenants reporting that they have undone the unauthorised constructions made. The local authority again issued a fresh notice alleging that the violation relating to the municipal rules relating to the unauthorised constructions put up over the tenanted premises is still subsisting and, then, the R.S.A Nos. 142/2010 and 351/2010 - 2 - plaintiff instituted the suits against the tenants seeking the decree of injunction, prohibitory and also mandatory. Prohibitory injunction was sought for to restrain the tenants from putting up any construction to the tenanted structure and mandatory injunction for removal of the unauthorised construction already put up. The defendant in the respective suit resisted the suit claims on various grounds in which among other contentions they also impeached the competency of the executive officer to represent the devaswom and institute the suit for the reliefs canvased. On the issues raised by the trial court, stemming upon the pleadings of the parties, both sides let in evidence. The executive offficer of the devaswom was examined as a witness and Ext.A12 authorisation issued by the devaswom was produced and exhibited in the case to prove its competency. The trial court, being satisfied from the materials produced that the devaswom is entitled to the decree of injunction, both prohibitory and mandatory applied for, allowed both suits. In the appeals preferred by the tenants, A.S No.11/2006 and A.S No.224/2005, after hearing both of them together and reappreciating the materials on record, the learned Additional District Judge, Thalassery, concurring with the findings entered by the trial judge confirmed the decree and dismissed such appeals. These second R.S.A Nos. 142/2010 and 351/2010 - 3 - appeals are preferred by the respective tenant impeaching the concurrent decision rendered by both the courts below in favour of the respondent/plaintiff as indicated earlier. 2. I heard the counsel on both sides. At the time of arguments, the learned counsel for the appellant in R.S.A No.142/2010 inviting my attention to a copy of the modified scheme framed for administration of respondent devaswom, what was produced along with a petition, I.A No.330/2010, seeking its reception as additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, urged that the scheme does not contain a provision empowering the executive officer to institute a suit on behalf of the devaswom. Inviting my attention to Sub Section (7) of Section 58 of the Madras Hindu Religious and Charitable Endowment Act, 1951, the learned counsel for the appellant argued that when a scheme is in force, the provisions thereunder have to be scrupulously followed. According to the counsel, only a trustee of the devaswom is entitled to institute a suit on behalf of the devaswom and that having not been followed in the present case with the suits being filed by the executive officer only, who was incompetent to do so, the decrees granted by the court below are liable to be set aside. Learned counsel appearing for the appellant in R.S.A No.351/2010 also supported the arguments R.S.A Nos. 142/2010 and 351/2010 - 4 - advanced by the counsel in R.S.A No.142/2010. It is not disputed that the rental deeds, Ext.A1 and Ext.A7, executed by the respective tenants, the appellants herein, were in favour of the devaswom as represented by the executive officer. They have entered into a contract, a tenancy arrangement over the tenanted premises with the devaswom as represented by the executive officer is more than sufficient to conclude that the challenge canvassed against the institution of the suit by the executive officer as the representative of the devaswom, is bereft of any merit. Further more it is seen, the plaintiff/devaswom has also produced Ext.A12, an authorisation enabling its executive officer to institute the suits on its behalf. So much so, there is absolutely no merit in the challenge raised against the maintainability of the suit questioning the competency of the executive officer to represent the plaintiff/devaswom. 3. The respective counsel for the appellants submitted that the tenants are moving the local authority for regularisation of the constructions put up which have been questioned as unauthorised. This court be pleased to make an observation that the present decree would not stand in their way in taking appropriate steps for such regularisation before the local authority, is the next plea canvassed. In the second appeal filed R.S.A Nos. 142/2010 and 351/2010 - 5 - against the decisions rendered by the court below, I find such observations are quite uncalled for as this court is concerned only with the correctness of the decree granted by the lower court. Irrespective of the decree the tenants can reach any settlement or arrangement with the devaswom for claiming the regularisation of the construction, subject to such terms as may be fixed by the local authority if so permitted by law. Subject to the above observation, both the appeals are dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv