IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RP.No. 153 of 2011(O) AGAINST THE JUDGEMENT IN OP(C) NO.972/2010 REVIEW PETITIONERS: RESPONDENTS 1 & 2 IN OPC 1. V.J.KRISHNAN,S/O.JOGYA SHETTY,AGED 66, ALUKKAL VEEDU, KOCHI-12. 2. P.B.MANIKKALAL,S/O.BALU SHETTY,AGED 57, PALAPARAMBIL HOUSE, KOCHI-2. BY ADV. SRI.C.CHANDRASEKHARAN SMT.P.M.SWAYAM PRABHA RESPONDENTS: PETITIONERS & RESPONDENTS 3 & 4 1. MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, REP.BY THE PRESIDENT OF THE MANAGING COMMITTEE, K.R.RAMESHAN. 2. K.R.RAMESHAN,PRESIDENT, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.K.V.RAMACHANDRAN,KALAZHATHU PARAMBU, PACHALAM,KOCHI-2. 3. K.R.MOHANAN,VICE PRESIDENT, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAJU(PAMBA STORES),KARUVELIPARAMBU, PACHALAM,KOCHI-12. 4. K.R.DIVAKARA RAO,SECRETARY, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAI RAO,KARUVELIPARAMBU, UDAYANAM ROAD,PACHALAM ,KOCHI-12. 5. K.R.MOHANAN,JOINT SECRETARY, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.RAMA SHETTY,RICE MERCHANT,KALOOR, KOCHI-17. 6. T.B.RAJA RATNAM,.TREASURER, MANAGING COMMITTEE, ERATTAKULANGARA BHAGAVATHY DEVASWOM, S/O.BHASKARAN,THUNDIPARAMBIL VEEDU, PACHALAM ,KOCHI-12. RP.No. 153 of 2011(O) :: 2 :: 7. K.P.AJITH KUMAR,EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE,ERATTAKULANGARA BHAGAVATHY DEVASWOM,S/O.PADMANABHA SHENOY, KOOVAKKATTU HOUSE,PACHALAM ,KOCHI-12. 8. K.R.PRAKASHAN,EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE,ERATTAKULANGARA BHAGAVATHY DEVASWOM,S/O.RAMADAS, KALAZHATH PARAMBU,PACHALAM ,KOCHI-12. 9. T.P.ARUNKUMAR,EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE,ERATTAKULANGARA BHAGAVATHY DEVASWOM,S/O.T.S.PRABHAKARAN, C/O.P.G.BABU,JALAJA SWEETS,POTTAKKUZHY ROAD PACHALAM ,KOCHI-12. 10. M.D.CHANDRASEKHARAN,S/O.M.B.DASHARADHAN MADAPATTU HOUSE,,PACHALAM , KOCHI-12. 11. T.N.RADHAKRISHNAN,EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE,ERATTUKULANGARA BHAGAVATHY DEVASWOM, S/O.NEELASARA SHETTY, THUNDIPARAMBU,PACHALAM,KOCHI-12. 12. T.B.BABU,EXECUTIVE COMMITTEE MEMBER, MANAGING COMMITTEE, ERATTUKULANGARA BHAGAVATHY DEVASWOM,S/O.BALAKRISHNAN, THUNDIPARAMBU, PACHALAM,KOCHI-12. R1 TO R10 BY ADVS.M/S.S.B.PREMACHANDRA PRABHU AND G.S.PRABHU R11 & R12 BY ADV. SRI.M.S.ANIL KUMAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Review Petition No.153 of 2011 in O.P.(C). NO. 972 OF 2010 ------------------------------------------------------ Dated this the 14th day of March, 2011 O R D E R Respondents 1 and 2 in O.P.(C) No.972 of 2010 filed this Review Petition seeking to review the judgment dated 14.2.2011. As per the judgment, the Original Petition was allowed and the order challenged in the Original Petition was set aside. The Receiver was discharged. Certain directions were also issued in the judgment in the Original Petition. 2. The contention of the review petitioners is that the order passed by the court below was an appealable order under Order XLIII Rule 1(s) of the Code of Civil Procedure and, therefore, the Original Petition should not have been entertained. Such a contention was not put forward at the time when the Original Petition was taken up for hearing and both parties argued the case in detail touching upon the merits of the case. R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 2 :: 3. Learned counsel appearing for respondents 1 to 10 in the Review Petition, who are the petitioners in the Original Petition, contended that the Original Petition was maintainable and, therefore, the judgment is not liable to be reviewed. 4. The common order passed in I.A.Nos.5354 of 2010 and 5422 of 2010 was challenged in the Original Petition. I.A.No.5354 of 2010 was filed by defendants 1 to 7 and 10 to 12 (petitioners in the Original Petition) under Section 151 read with Order XL of the Code of Civil Procedure to discharge the Receiver appointed by the Court. I.A.No.5422 of 2010 was filed by the plaintiffs under Section 151 of the Code of Civil Procedure for a direction to the Receiver to continue in office till the disposal of the suit. 5. The suit was filed for a permanent prohibitory injunction restraining defendants 2 to 12 from convening the committee and conducting the administration of Erattakulangara Bhagavathy Temple and for a declaration that the first defendant Managing Committee elected on 28.9.2008 became functus officio. Defendants 1 to 7 and 10 to 12 preferred a counter claim for a decree to conduct election of the Managing Committee of the R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 3 :: Temple under the supervision of an Advocate Commissioner deputed by the Court. An Interlocutory Application was also filed by the contesting defendants to appoint a Commissioner for conducting the election. That application was allowed unopposed. A Commissioner was appointed and election was held. 6. The plaintiffs filed I.A.No.483 of 2010 for appointing a Receiver. Defendants 8 and 9 filed I.A.No.2344 of 2010 to set aside the Commissioner's report. The plaintiffs also filed I.A.No.2877 of 2010 to set aside the Commissioner's report as well as the election. On 7.4.2010, the court below passed an order, by which, a Receiver was appointed as an interim arrangement till the disposal of I.A.No.2344 of 2010. Later, I.A.Nos.2344 of 2010 and 2877 of 2010 were dismissed by the court below on 13.8.2010. Though the order dated 13.8.2010 was challenged by the plaintiffs and defendants 8 and 9 in two Writ Petitions, the Writ Petitions were later withdrawn. 7. After the dismissal of I.A.Nos.2344 of 2010 and 2877 of 2010, the plaintiffs filed I.A.No.5422 of 2010 to direct the Receiver to continue and the contesting defendants filed I.A.No.5354 of 2010 to discharge the Receiver. The ground on which the Receiver was R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 4 :: appointed was not available after the dismissal of the application to set aside the Commissioner's report as well as the election. The contesting defendants sought for permission to the newly elected Committee members to take charge. The court below rejected that prayer on the ground that the said relief can be granted only on allowing the counter claim. That view was found to be incorrect in the judgment sought to be reviewed. As mentioned above, the application from which the Original Petition arose was not really an application to appoint a Receiver, but for a direction to continue the Receivership. The contesting defendants prayed for discharge of the Receiver on the ground that the applications filed to set aside the Commissioner's report and the election were subsequently dismissed and since the Receiver was appointed only as a stop gap arrangement. 8. Sri.C.Chandrasekharan, the learned counsel appearing for the review petitioner submitted that there was absolute lack of jurisdiction to interfere with the order under Article 227 of the Constitution of India, as an alternative remedy of appeal was available to the petitioners in the Original Petition. Sri.S.B.Premachandra Prabhu, the learned counsel appearing for R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 5 :: respondents 1 to 10 in the Review Petition submitted that, even assuming that an alternative remedy was available, in the peculiar facts and circumstances of the case, the High Court rightly exercised the jurisdiction under Article 227 of the Constitution of India. He also raised a contention that the availability of an alternative remedy and the bar for entertaining the Original Petition was not raised by the review petitioners in the Original Petition. 9. In Panopharam v. Union of India (2010 (3) KLT 149), it was held that a party whose remedy by way of an appeal under the Statute is barred by limitation, would not be entitled to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. In John V.O. v. M/s.Catholic Syrian Bank Ltd. and others (2009(1) KHC 337 (DB)), the Division Bench held that when an efficacious remedy is provided under the Code of Civil Procedure, a Writ Petition under Article 227 could not be filed as an appeal in disguise. However, it was held that at the same time, jurisdiction under Article 227 cannot be limited or fettered even by any Act of the legislature and the supervisory jurisdiction is very wide and can be used to meet the ends of justice. R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 6 :: 10. In Shalini Shyam Shetty v. Rajendra Shankar Patil ((2010) 8 SCC 329), the Supreme Court held thus: “On an analysis of the aforesaid decisions of this Court, following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 7 :: provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 8 :: perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. ...... ....... ...... .......” 11. Sri.Premachandra Prabhu submitted that a distinction is to be drawn between appointment of Receiver and discharge of Receiver. He submitted that Rule 1 of Order XL does not deal with the case of discharge of Receiver. It is submitted that Rule 1 of Order XL deals with appointment of Receiver which includes removal also. Discharge of Receiver is a different aspect. The counsel referred to the passage in N.D.Basu's The Law and Practice Relating to Receivers. In paragraph 1164 thereof, it is stated as follows: R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 9 :: “1164. Discharge and Removal, meaning of -- Distinction.-- “A distinction indicated by the terms themselves is to be drawn between the removal and the discharge of a Receiver. The discharge of the Receiver is in general, termination of the receivership, while the removal of the receiver upon his own motion or for the case and the substitution of another person or persons in his stead, is a proceeding not inconsistent with the continuation of the receivership. The effect of the discharge of a receiver is to terminate the receivership proceedings; the removal of the receiver affects only the person. A receiver is removed when it is made to appear that the interest of the parties concerned require it, and a Receiver is discharged when the objects sought to be obtained by his appointment have been accomplished. In the one case the property in litigation continues in the possession of the Court, subject to the final decree, while in the other it passes pursuant to the decree to the party entitled. The term “remove” as applied to a Receiver, means simply a change in the personnel of the receivership, which continues unaffected. The effect of removal is only to substitute one person for another in the office. The cause of the 'removal' of a Receiver is some personal objection to him. To 'vacate' the appointment is to set aside the order of appointment because improvidently granted, the R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 10 :: motion for which is based on the circumstances and conditions attending the appointment. The 'discharge' of a receiver relates to the termination of the receivership, as is asked and ordered for the reason that, because, of the state of the suit, there is no longer any necessity for continuing the receiver. The terms 'remove' 'vacate' and 'discharge' are frequently used indiscriminately; but from the context, the sense in which they are used is readily understood.” 12. It is also relevant to note that I.A.No.5422 of 2010 filed by the plaintiffs for a direction to continue the Receivership was filed under Section 151 of the Code of Civil Procedure and not under Rule 1 of Order XL. It is true that quoting a wrong provision of law does not matter much and it is necessary to look into the real provision under which the order was passed by the court. In the present case, the appointment of Receiver was not on a regular application filed under Rule 1 of Order XL, but only as a temporary measure and as a stop gap arrangement till the disposal of the application to set aside the Commissioner's report and to set aside the election. Taking into account the submission of the plaintiffs and the supporting defendants that till the question of setting aside the election was considered it was not proper to allow the elected members of the R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 11 :: committee to take charge, a Receiver was appointed purely on a temporary basis. In fact, such appointment should come to an end on the dismissal of the application to set aside the Commissioner's report and to set aside the election. However, the court below took a different view that only after the counter claim is allowed, the elected members should be allowed to assume office. On the basis of such a reasoning, the Receiver was allowed to continue and the application to discharge him was dismissed. Therefore, I do not think that the contesting defendants should have filed an appeal under Order XLIII Rule 1(s), particularly when the application filed by the plaintiffs was under Section 151 of the Code of Civil Procedure. 13. Both the parties in the Original Petition argued the matter in great detail and a detailed judgment was passed. All the relevant aspects of the case were considered. Thereafter, if the review petitioners are allowed to raise a contention that the Original Petition should have been dismissed on the ground that an appeal was maintainable under Rule 1(s) of Order XLIII against the order of the court below and if that contention is accepted, it would result in manifest injustice. It cannot be said that the order passed in the Original Petition is wholly without jurisdiction. R.P.NO.153 OF 2011 IN O.P.(C) NO.972 OF 2010 :: 12 :: 14. Sri.Premachandra Prabhu also raised a contention that the review petitioners are also benefited by the judgment sought to be reviewed. Accepting the contention of the Review Petitioners, a direction was issued in the judgment to the second petitioner in the Original Petition not to act as the President of the Committee till the suit is over. Directions were also issued with regard to the functioning of the Committee, submission of accounts etc. All these directions were issued taking note of the submissions made by the review petitioners. At this stage, they cannot be allowed to turn round and contend that the Original Petition was not maintainable. For the aforesaid reasons, the Review Petition is dismissed. (K.T.SANKARAN) Judge ahz/