IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 1002 of 2007(T) ------------------------- OS.55/2004 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER(S): --------------------- 1. SUDHAKARAN, S/O.NEELAKANTAN, CHARUMMOOD DESATH VEEDU, EDAKKODU VILLAGE, EDAKKODU DESOM. 2. JAGAJATHAN, MELEVILA VEEDU, EDAKKODU, EDAKKODU DESOM AND VILLAGE. 3. SUDINAN, S/O.RAGHAVAN, RESIDING AT MELEVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 4. SADASIVAN, MANNANVILAKATHU VEEDU, EDAKKODU DESOM AND VILLAGE. 5. SATHYADEVAN, KUNNUVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 6. DIVAKARAN, MOOLAYIL VEEDU, EDAKKODU DESOM AND VILLAGE. 7. JAYAKUMAR, MELEVILA VEEDU, EDAKKODU DESOM AND VILLAGE. 8. SREEDHARAN, S/O.MADHU, SHAJI BHAVAN, KISHUVILOM VILLAGE AND DESOM. 9. UNNIKRISHNAN, S/O.KESAVAN, VATTAVILA VEEDU, POIKAMUKKU, ELAMBA VILLAGE. 10. VISWAMKUTTY, S/O.SUDHAKARAN, AKHIL NIVAS, KORANI, EDAKKODU VILLAGE AND DESOM. 11. JAYACHANDRAN, S/O.JAYANNADAN, PUTHUVAL VILA VEEDU, EDAKKODU VILLAGE AND DESOM. 12. RAJU, S/O.JAYANNATHAN, LECTURER, PUTHUVAL VILA VEEDU, EDAKKODU VILLAGE AND DESOM. 13. SATHEESAN, S/O.SEKHARAN, PUTHUVAL VILA VEEDU, EDAKKODU VILLAGE AND DESOM. BY ADV. SRI.K.P.SREEKUMAR SRI.R.GIREESH VARMA RESPONDENT(S): ------------------------ SUDHAKARAN, KALIYILVILA VEEDU, PARAYATHUKONAM, REPRESENTED BY THE VARUVILAKOM DEVI TEMPLE. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.RAJAN VELLOTH FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 1002 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2009. JUDGMENT Bhavadasan, J, O.S. No. 55 of 2004 before the Sub Court, Attingal was instituted claiming a temple be a public one and the suit is one under Section 92 of the Civil Procedure Code. Prayer in the suit was to set aside the trust deed said to have been executed in 2003 and to frame a scheme with adequate representation from the members of the family and public for the administration and management of the temple. 2. During the pendency of the suit, the second plaintiff filed I.A. 1751 of 2005 in O.S. 155 of 2004 seeking to have the plaint amended. The amendment sought was to include the words “...........................” in the relief portion of the suit. 3. The amendment was vehemently opposed by the contesting defendants. Defendants 4, 7, 11 and 14 filed their objections. They pointed out that there is no bonafides in the petition seeking amendment. According to them, the suit was under Section 92 of the Code of Civil Procedure and the amendment now sought to be WPC. 1002/07. 2 made is to get over the contention that the suit as originally framed will not fall within the ambit of Section 92 CPC. It is also pointed out that the main relief being one for declaration that the trust deed executed in 2003 for the management of the temple, takes the suit out of the ambit of Section 92 CPC. They also pointed out that a reading of the plaint would show that even according to the plaintiffs the temple belonged to seven families. According to these respondents the public have nothing to do with the temple except that they are allowed to worship. They would say that the plaint as originally laid would not bring the suit within the scope of Section 92 CPC, and in order to get over that embargo, the present amendment has been sought. 4. The court below on a consideration of the materials before it found that there is nothing wrong in the amendment sought for and allowed the petition. The said order is assailed in this writ petition. 5. Learned counsel appearing for the petitioners pointed out that the court below has omitted to note the real consequence of WPC. 1002/07. 3 allowing the amendment. Referring to the plaint, learned counsel pointed out that a reading of the original plaint would show that the temple belonged to seven families. It is true that there is an allegation in the plaint that the people of the locality were being associated with the festival in the temple. But that by itself does not clothe the temple with a public character. It remains to be a private one. The attempt by the plaintiffs now is to bring in the people of the locality in the relief portion so as to make the suit maintainable. 6. Counsel for the respondents on the other hand pointed out that even in the plaint it has been stated that the temple is a public temple and therefore the amendment now sought for does not change the character of the suit, but only supplies further materials. 7. The dispute as to whether the temple is a public or a private one remains to be determined. That issue has been relegated to be decided at the trial of the suit as it is felt that evidence is necessary for coming to a conclusion either way. It is true that to ascertain whether a suit is maintainable under Section 92 CPC, the averments in the plaint will have to be looked into. It is also well settled that at the WPC. 1002/07. 4 time of considering the petition for leave, it may not be necessary to issue notice to the respondents. Even if leave is granted without notice to the respondents, nothing prevents the respondents from seeking a revocation of the leave granted under Section 92 CPC. A reading of the plaint would prima facie show that the dispute is between the members of seven families. It is a fact that the trust deed had been drawn up in 2003, which also provides for administration and management of the temple. May be that the second plaintiff was excluded from the trust deed. There is an averment in the plaint that amounts have been collected from the public and utilised for various purposes in the temple. May be that there is some deficiency in the pleadings. But whatever that be, the fact remains that there are materials in the plaint as it originally stood to show that what the plaintiffs intended was that the temple is a public one. Under those circumstances, the court below thought that no serious injury will be caused to the respondents by allowing the amendment. 8. As already noticed, the issue whether temple is a public or a private one remains to be determined. Under such circumstances, WPC. 1002/07. 5 as rightly pointed out by the court below, there will be no harm or prejudice caused to the petitioners herein if the amendment allowed. No grounds are made out to interfere with the order of the court below and the writ petition is dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.