IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 CRP.No. 187 of 2011() -------------------------------- I.A.NO.422/2011 IN OS.NO. 654/2005 of ADDL.MUNSIFF COURT,CHERTHALA .................... REVN. PETITIONER(S): PLAINTIFFS 2 AND 3 --------------------------------------------------------------- 1. K.P. VASU, S/O. PAPPU, AGED 72, KABOTHUCHIRA, KODAMTHURUTHU, KODAMTHURUTHU MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. V. PURUSHAN, S/O. PARAMU, AGED 68, VELIYIL LAKSHOM VEEDU, KODAMTHURUTHU VILLAGE, KODAMTHURUTHU MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): DEFENDANTS ------------------------------------------------- 1. KIZHAKKE CHAMMANAD DEVASWOM,REPRESENTED BY PRESIDENT,MANAGING BOARD,BHASURAGNAN @ CHITHRALAYAM BHASI(THE PRESIDENT AT THE TIME OF FILING SUIT AS SHOWN IN THE PLAINT)CHITHRALAYAM, KODAMTHURUTH,KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. THE SECRETARY, MANAGING BOARD, PURUSHAN (THE SECRETARY AT THE TIME OF FILING SUIT AS SHOWN IN THE PLAINT) REVATHY, KODAMTHURUTH, KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 3. S.N.D.P. YOGAM, KOLLAM, PIN - 673 307, REPRESENTED BY GENERAL SECRETARY. 4. S.N.D.P, CHERTHALA TALUK UNION, PIN - 688 524, REPRESENTED BY SECRETARY. 2/- -2- C.R.P.NO.187/2011 5. S.N.D.P SAKHA YOGAM NO. 685, KODAMTHURUTHU, KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT, REP. BY SECRETARY. 6. S.N.D.P SAKHA YOGAM NO. 5018, KODAMTHURUTH, KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT, REP. BY SECRETARY. 7. SADASIVAN, S/O PADMANABHAN, AGED 66, MYLANDIYIL, KODAMTHURUTH KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT, REPRESENTING EDACHILATT KUDUMBA MEMBER. 8. ADMINISTRATOR, S.N.D.P SAKHA YOGAM N0. 685, KODAMTHURUTH KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 9. MOHANA PANICKER, PUNNAVEETTIL, AYYANTHOL.P.O, PIN - 680 003, EDACHILATTU FAMILY MEMBER. 10. KIZHAKKE CHAMMANAD DEVASWOM REPRESENTED BY PRESIDENT K.GOPI, KAIPALLY NIKARTH, KODAMTHURUTH, KUTHIATHODE.P.O, PIN - 688 533. CHERTHALA TALUK, ALAPPUZHA DISTRICT. 11. KIZHAKKE CHAMMAD DEVASWOM, REPRESENTED BY SECRETARY, SHAJI, SHAJI BHAVAN, KODAMTHURUTH, KUTHIATHODE.P.O, PIN - 688 533, CHERTHALA TALUK, ALAPPUZHA DISTRICT. R3 BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN R4 & R6 BY ADV.SRI.J.OM PRAKASH R9 BY ADV. SRI.JAYAKRISHNAN.C.H SRI.SABAREENATH HARIHARAN R10 & R11 BY ADV.SRI.SABU GEORGE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, ALONG WITH OP(C)NO.2367/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 --------------------------------------- Dated this 25th day of July, 2011 ORDER Respondents 1, 2, 5, 6, 7 and 8 appear through counsel. It is submitted that other respondents are not necessary parties to the suit. Hence notice to them is dispensed with. 2. The civil revision and original petition concern a dispute as to the administration of a temple which originally belonged to the Edachilattu family of Kodamthuruthu Village. It is stated that the family by two registered covenants (document No.837 of 1970 and 700 of 1972 of SRO, Arookutty) initially entrusted administration of the temple to the SNDP Sakha Yogam No.685. It is stated that a right of reversion was also provided for the family in the registered covenants in case of default of compliance of the conditions referred to therein. The temple was administered by a separate body of elected members of the SNDP union. The covenant provided for settlement of a scheme and accordingly a scheme was framed and registered as 2441 of 1974. Administration of the temple was to be done as per the said scheme. In the year, 2003 the Taluk union of SNDP divided the SNDP Shaka yogam No.685 and a new SNDP Sakha Yogam C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 2 :- (bearing No.5018) was formed and the temple was set apart to be administered by the new Shaka (5018). Two members of the SNDP Shaka yogam filed O.S.No.654 of 2005 for declaration and injunction alleging that the covenants are violated and that the temple should have remained with the SNDP Shaka Yogam No.685. Pending suit, it is stated, there was law and order problems. There was a mediation regarding the subject matter. Accordingly, it is alleged, that a compromise was reached with the members of the shaka and the Taluk Union participating it,on December 16, 2006. Pursuant to that settlement, it is alleged that a referendum was conducted among member of the Shaka as to which Shaka the temple should belong for administration purposes. According to the petitioners, the referendum indicated that members of the SNDP Shaka wanted the temple to remain with the new Shaka. Thereafter office bearers of the temple were elected. Additional defendants 10 and 11 were elected as the President and Secretary and they got impleaded as such as per order on 07.07.2009 in I.A.No.58 of 2008. It is claimed by petitioners that the tenure of the managing body was three years and on completion of the said period new officer bearers were elected. New office bearers filed I.A.No.425 of 2011 to substitute them in the place of additional defendants 10 and 11. That application was dismissed by the learned counsel which has given C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 3 :- rise to O.P(C).No.2367 of 2011. 3. When the suit came for trial in the list, plaintiffs filed I.A.No.422 of 2011 to decree the suit based on the settlement referred above invoking Rule 3 of Order XXIII of the Code of Civil Procedure (for short, "the Code”). Photocopy of the (disputed) compromise was produced by the petitioner in O.P(C).No.2367 of 2011 along with I.A.No.425 of 2011. Steps were taken to summon the original of the compromise deed from the mediators but on account of they being engaged otherwise, the same could not be produced. Learned Munsiff did not grant time to the petitioners in C.R.P.No.187 of 2011 to get the original settlement. Learned Munsiff referred to the fact of compromise deed produced by the petitioners herein and passed order on 26.03.2011 that the so called compromise cannot be taken into account since it is not signed by some of the parties to the suit. That order is under challenge in C.R.P.No.187 of 2011. 4. Learned counsel for petitioners/plaintiffs in C.R.P.No.187 of 2011 contended that the compromise referred to in Rule 3 of Order XXIII of the Code is a contract between the parties as is clear from explanation added to Rule 3 of Order XXIII of the Code. It is contended by learned counsel that if at all plaintiffs have not signed the compromise, their delegates have signed and that cured the defect. It is also contended that if the C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 4 :- third defendant (a party in the original suit) has not signed the compromise, members of the shaka yogam has signed the compromise and hence it is valid. Learned counsel for petitioners in O.P(C).No.2367 of 2011 contended that impleadment of defendants 10 and 11 as per order on I.A.No.58 of 2008 was not objected by the contesting defendants and hence they have no reason to object to defendants 10 and 11 being substituted by petitioners in O.P.No.2367 of 2011. 5. The case was posted for trial in the list when the present controversy arose. So far as order dated March 26, 2011 on the application under Rule 3 of Order XXIII of the Code is concerned, reference has to be made to the relevant provisions of the Code. Rule 3 of Order XXIII of the Code states that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject- matter of suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith. The proviso states that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 5 :- question, unless the Court, for reasons to the recorded, thinks fit to grant such adjournment. According to the learned counsel for petitioners in C.R.P.No.187 of 2011, if at all it was found that some of the parties has not signed the compromise deed it was necessary for the learned Munsiff to have conducted an enquiry as stated in Rule 3 of Order XXIII of the Code. 6. But, prima facie there must be an agreement which falls within the mischief of Rule 3 of Order XXIII of the Code. It is not disputed that the compromise is not signed by the petitioners/plaintiffs in C.R.P.No.187 of 2011 or by defendants 3, the SNDP Shaka Yogam represented by its general Secretary. Assuming that the defect if any, due to petitioners/plaintiffs not signing the compromise can be cured in whatever way it is possible, that does not save the situation since the third defendant who is a party to the compromise has admittedly not signed the alleged compromise. Learned counsel for third defendant has expressed his unwillingness to a party to the compromise. If that be so, the compromise in C.R.P.No.187 of 2011 does not come within the mischief of Rule 3 of Order XXIII of the Code so that it was required for the learned Munsiff to enquire whether there was compromise or not as proviso to Rule 3 of Order XXIII of the Code states. As such I do not find reason to interfere with the order in C.R.P.No.187 of 2011. Learned C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 6 :- counsel for petitioner/plaintiffs in C.R.P.No.187 of 2011 has submitted that if not as a compromise binding the parties who have not signed it under Rule 3 of Order XXIII of the Code, it can operated as estoppal against those who have signed it. That is a matter which does not arise for a decision in this proceeding. If a contention regarding estoppal is available to the petitioners/plaintiffin C.R.P.No.187 of 2011 it is open to them to agitate that in the trial court as provided under law. 7. Coming to the question whether petitioners in O.P(C). No.2367 of 20111 are to be substituted in the place of additional defendants 10 and 11, it has to be born in mind that there was no objection in additional defendants 10 and 11 being impleaded as per order dated 07.07.2009 on I.A.No.58 of 2008 and objection came when petitioners in O.P(C).No.2367 of 2011 came forward claiming to be the new office bearers of the temple administration committee after the tenure of additional defendants 10 and 11 was over. At the time of hearing learned counsel for defendants 6 and 7 stated that defendants 6 and 7 have no objection in petitioners in O.P(C).No.2367 of 2011 being impleaded as additional defendants and their claim being agitated in the suit. 8. Having regard to the circumstances stated before me I do not find reason why petitioners in O.P(C).No.2367 of 2011 C.R.P.No.187 of 2011 and O.P(C).No.2367 of 2011 -: 7 :- shall not be allowed to come on record as additional defendants in the suit in the character they claim, the question whether they fill that character being a matter for evidence to reveal. Hence, I.A.No.425 of 2011 filed by the petitioners in O.P(C).No.2367 of 2011 can be treated as one for impleadment under Order I, Rule 10(2) of the Code. Resultantly these petitions are disposed of in the following lines: (i) C.R.P.No.187 of 2011 is dismissed with the observations made above. (ii) O.P(C).No.2367 of 2011 is allowed in the following lines. Ext.P8, order on I.A.No.425 of 2011 in O.S.No.654 of 2005 of the Court of learned Additional Munsiff, Cherthala is set aside and that application will stand allowed whereby petitioners in I.A.No.425 of 2011 are impleaded as additional defendants 12 and 13 in the character they have stated in that application. The question whether they fill in that character will be a matter which learned Munsiff can decide if it arises for a decision in the suit. (THOMAS P JOSEPH, JUDGE) Sbna/-