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 CRP.No. 39 of 2007() -------------------- AGAINST THE ORDER DATED 22/08/2006 IN IA.1222/05 IN OS.55/2004 of SUBORDINATE JUDGES COURT,ATTINGAL .................... REVN. PETITIONER(S): DEFENDANTS ------------------------ 1. SUDINAN, S/O. RAGHAVAN, MELEVILA VEEDU, KORANI P.O., EDAKKODU VILLAGE. 2. DIVAKARAN, S/O. VASUDEVAN, MOOLAYIL VEEDU, KORANI P.O., EDAKKODU VILLAGE. 3. VISWANKUTTY, S/O. SUDHAKARAN, AKHIL NIVAS, KORANI P.O., EDAKKODU VILLAGE. 4. SATHEESAN, S/O. SEKHARAN, PUTHUVALVILA VEEDU, KORANI P.O., EDAKKODU VILLAGE. BY ADV. SRI.K.P.SREEKUMAR SRI.P.M.SATHEESH RESPONDENT(S): PLAINTIFFS -------------------------- 1. VARUVILAKAM DEVI TEMPLE, KORANI, EDAKKODU VILLAGE. 2. SUDHAKARAN, KALIYILVILA VEEDU, PARAYATHUKONAM, REPRESENTED BY THE VARUVILAKOM DEVI TEMPLE. 3. K.PAVITHRAN, MOOLAYILVILA VEEDU, KORANI P.O., EDAKKODU DESOM. C.R.P.No.39 of 2007 : 2 : 4. J.ASOKADAS, A.K.NIVAS, KORANI P.O., EDAKKODU VILLAGE. 5. K.PEETHAMBARAN, PURAMBANCHANI VEEDU, KORANI P.O., EDAKKODU VILLAGE. 6. K.PRASANNA, VILAYIL VEEDU, EDAKKODU VILLAGE AND DESOM. 7. M.KRISHNAN, MAKAYIRAM, EDAKKODU VILLAGE AND DESOM. 8. J.BITHENDRA, PANKAJA MANDIRAM, MELTHONNAKKAL VILLAGE, PERUMBANCHANI DESOM. BY ADV. SRI.NAGARAJ NARAYANAN FOR R1TOR8 SRI.NAIR AJAY KRISHNAN FOR R1TOR8 SRI.RAJAN VELLOTH FOR R1TO8 SRI.SAIJO HASSAN FOR R1TO8 SRI.A.S.SABU FOR R1TO8 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- C.R.P.No. 39 of 2007 ------------------------------- Dated this the 16th June, 2009 O R D E R Bhavadasan, J. Respondents 3, 6, 10 and 13 in I.A.No.1222 of 2005 and I.A.No.195 of 2005 in O.S.No.55 of 2004, on the file of Sub Court, Attingal, are the revision petitioners. Their petition for revocation of sanction under Section 92 of Code of Civil Procedure was dismissed. Parties are hereinafter referred to as they are arrayed before the court below. 2. The suit in respect of a temple was instituted pointing out that a trust deed was fraudulently executed by the defendants without the knowledge of the plaintiffs who are also members of the families which have rights over the temple. The main prayer in the suit was to set aside the trust deed in which only a few of the family members were parties and also to frame a scheme in respect of the management of the temple. C.R.P.No.39 of 2007 2 3. The records indicate that the temple originally belonged to seven families and they were managing the day-to- day affairs of the temple. It is admitted by both sides that till 2003, there were no written bye-laws for the administration and management of the temple. It appears that trust deed was drawn up and a governing body was constituted with some of the members from the seven families and it appears that daily affairs of the temple are being carried on the basis of the provisions contained in the said deed. Now a case has been set up pointing out that a trust deed is no longer workable and a scheme is required. It is also stated that there have been large scale misappropriation of fund, mismanagement and mal- administration of the temple by the existing trustees. 4. Suit under Section 92 of Code of Civil Procedure was laid pointing out that the temple is a public temple and also that a proper scheme needs to be drawn up for the administration of the temple. The plaintiffs in their plaint has pointed out various aspects which requires that a scheme be drawn up. It appears that leave was granted to institute a suit. C.R.P.No.39 of 2007 3 The defendants in the suit, on getting notice entered appearance and they filed I.A.No.1222/05 to have the leave granted revoked. The court below, after elaborate consideration, came to the conclusion that there is large scale involvement of public in the temple activities and hence rejected the petition. It is the said order that is challenged in this revision. 5. The learned counsel appearing for the revision petitioners pointed out that a reading of the plaint will show that the temple is owned by seven families and as per the trust deed, they are carrying on the administration and management of affairs of the temple. According to the learned counsel, the court below was not at all justified in holding that the it is a public trust especially in view of the averments in the plaint. It is pointed out that it was by way of an amendment that the initial defects were sought to be rectified and that is not permissible in law. 6. Per contra, the learned counsel appearing for the respondents, on the other hand, pointed out that for a long C.R.P.No.39 of 2007 4 time, public have been associated with the administration of the temple and they have a say in the administration of the temple. It is pointed out that funds are being collected from the public and being utilized for the renovation and other purposes of the temple. 7. The lower court was pursuaded by the fact that funds are collected by the public and they are beneficiaries under the temple and so it is a public trust. 8. It is too pre-mature to decide the issue and take a decision in the matter. The plaintiffs in the suit have produced certain documents to show that public have contributed in a large scale. But there is nothing to show that as a matter of fact they have a right to worship in the temple. At any rate, it has to be noticed that at present the management and administration of the temple is being carried on in accordance with provisions of the trust deed of 2003. The allegation is that that is not sufficient and a proper scheme has to be drawn up. Considering the submissions made by the learned counsel on either side, it will C.R.P.No.39 of 2007 5 be better and proper to decide the issue by the trial court at the time of trial of the suit filed under Section 92 of Code of Civil Procedure, since the claim of plaintiff is that the temple is a public one though opposed by the defendants. 9. The main question that arise for consideration is whether the first plaintiff temple is a private or public trust which the plaintiffs would claim it as a public trust, and the defendants would contend that it a private trust. The mere fact that some funds have been collected from the public or that public are allowed to worship may not therefore be sufficient to hold that the temple is a public temple. The materials available before the Court are too meager to come to a conclusion either way. In such circumstances, we feel that it is appropriate to defer the decision in the issue for the time being and remit the case back to the court below for trial and disposal in accordance with law, since it is felt that it is necessary to adduce evidence on this aspect. C.R.P.No.39 of 2007 6 In the result, C.R.P. is allowed. The impugned order is set aside. The matter as to whether the temple is a private or public trust is left open to be finally decided at the time of trial, untrammelled by the observations made here and by the court below. There will be no order as to costs. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.