IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 CRP.No. 139 of 2009() --------------------- Against the order in O.S.No.173/1997 of Sub Court, Kochi. ---------------------- REVN. PETITIONER(S): PETITIONERS/DEFENDANTS ------------------------------------------- 1. A.NATARAJAN, S/O.LATE ANDY ACHARI, AGED 66, THACHODATHU HOUSE, PANAYAPPILLY, KOCHI-2. 2. DR.RAMAYYA, S/O.LATE ANDY ACHARI, AGED 72, THACHODATHU HOUSE, PANAYAPPILLY, KOCHI-2. 3. RAJENDRAN, S/O.LATE ANDY ACHARI, AGED 62, THACHODATHU HOUSE, PANAYAPPILLY, KOCHI-2. 4. N.SANTHOSH, S/O.A.NATARAJAN, AGED 35, THACHODATHU HOUSE, PANAYAPPILLY, KOCHI-2. BY ADV. SRI.K.C.CHARLES ADV. SRI.SANEESH KUMAR ADV. T.LAKSHMI RESPONDENT(S): PLAINTIFFS ------------------------- 1. PONNAMMAL, W/O.K.N.NADESAN, AGED 73, RESIDING AT 12/791, PANAYAPPALLI, KOCHI-2. 2. C.MURALI, AGED 47, S/O.CHELLAPPAN ACHARI, RESIDING AT 9/227A, KENPAY LINE, MATTANCHERRY VILLAGE, KOCHI TALUK. 3. SELVAN P.O., S/O.PALANI ACHARI, AGED 35, PULIKKEDATHU PARAMBU, PANAYAPPALLY, COCHIN - 2. 4. BALAKRISHNAN KILIKAR, S/O.S.B.KILIKAR, RESIDING AT 8/2163, KILIKAR ROAD, KOCHI - 2. 5. S.PALANI ACHARI, AGED 78, S/O.SIVATHANU ACHARI, 12/928, AMBALAPARAMBU, KOCHI-2(DIED). 6. V.S.APPU ACHARI, AGED 70, S/O.SUBRA, 8/1422, T.D.EAST ROAD, ELANJIKKAL PARAMBU, KOCHI-2. 7. S.SUBBAYYAN ACHARI, AGED 63, S/O.SIVARAMAN ACHARI, 1/1566, MARKET ROAD, KOCHI-1(DIED). 8. V.KOLAPPAN ACHARI, AGED 61, S/O.VENKATACHALAM ACHARI, 10/252, CHIRATTAPPALAM, KOCHI-1(DIED). 9. KUMARANASAN, S/O.A.RAJAPPAN ACHARI, AGED 50, PULIKKEDATHU PARAMBU, KOCHI-2. 10. MARIAPPAN ACHARI, S/O.LATE AYYANKUTTY ACHARI, AGED 77, PULIKKEDATHU HOUSE, PANAYAPPILLI, KOCHI-2. 11. MUTHARAMMAN KSETHRA SAMITHI, REG.3666/1994, PANAYAPPILLY, KOCHI-2, REP. BY ITS SECRETARY, M.DHANAPALAN, S/O.MUTHUSWAMI ACHARI, ELANJIKKAL VEEDU, PANAYAPPILLY, KOCHI-2. 12. KOCHI TAMIL VISWA BRAHMINS ASSOCIATION REG.NO.8/1951, MUTHARAMMAN KOVIL, PANAYAPPILLY, KOCHI-2. 13. KOCHIN PANAYAPPILLY SREE DHARMASASTHA SANGOM, REG.NO.E.R.454/1994, PANAYAPPILLY, KOCHI-2. 14. M.P.SADANANDAN, AGED 54, S/O.LATE M.PADMANABHAN ACHARI, 8/21, L.G.PAI ROAD, KOCHI-2. 15. L.RAJU, S/O.KARAPPAN ACHARI, AGED 60, 8/449, SOUTH CHERLAI, KOCHI-2. 16. A.K.SAJITH KUMAR, AGED 40, S/O.R.KESAVAN KUTTY NAIR, SRI.RAMA, GUJARATHY ROAD, KOCHI-2. 17. V.DHANARAJ, AGED 40, H.NO.13/465, CHULLIKKAL, KOCHI-2. 18. M.SIVADAS, AGED 58, S/O.MADHAVAN, H.NO.9/918, ANAKKATTU PARAMBIL, PANDIKUDI ROAD, KOCHI-2. 19. BABU, S/O.MINNAN, AGED 41, H.NO.12/243, KOOVAPPADAM, KOCHI-2. 20. T.N.SAHADEVAN, S/O.NARAYANAN, AGED 51, H.NO.16/419, KURUPPUTHARA HOUSE, KARUVELIPPADY, KOCHI-5. ADV. POLY MATHAI FOR R9 AND R15 TO R20 ADV. SRI.S.VINOD BHAT FOR R6 ADV. SRI.PEEYUS A.KOTTAM FOR R12 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- C.R.P.Nos.139 AND 228 OF 2009 -------------------------------- Dated this the 7th day of December 2009 ---------------------------------------------------------- ORDER These two revisions have been filed against the order dated 29/11/2008 in O.S No. 173 of 1997 by the learned Sub Judge, Kochi. In both these revisions, the revision petitioners have moved application for conversion of the revisions into appeals contending that as against the orders impugned, only appeal will lie. 2. I heard the counsel on both sides. At the time of hearing, it has been brought to my notice that four suits were jointly tried and a common judgment was rendered by the court below. The suits were O.S No. 173 of 1997, O.S No.156 of 1997, O.S No.195 of 1999 and O.S No.21 of 2000. The dispute involved in the four suits related to a temple namely Mutharamman Kovil situate at Kochi and its properties. The bone of contention in the suits was whether C.R.P.Nos.139 AND 228 OF 2009 Page numbers it is a private or a public temple. O.S No.173 of 1997 was filed under Section 92 of the Code of Civil Procedure for preparation of a scheme to administer the temple and it properties. O.S No.156 of 1997 was filed by some members of a trust , Mutharamman Andi Achari Trust, setting forth a claim that it is a private temple belonging to a family. That suit was one for injunction to restrain the defendants from interfering with the administration of the temple. The same trust filed another suit O.S No. 195 of 1999 which was also a suit for injunction against the defendants therein. Some of the devotees filed the other suit, O.S No.21 of 2000 seeking a decree that the temple and its properties belong to the deity, and also an injunction against the defendants therein. After joint trial of the four suits, O.S No.173 of 1997 was allowed directing for preparing a scheme for the administration of the temple. In O.S No. 21 of 2000 also a decree in part was granted declaring that the temple and its properties belong to the deity, but rest of the reliefs claimed wasd declined. The other two suits O.S No.156 of 1997 and O.S No.195 of 1999 were dismissed. Against the decision C.R.P.Nos.139 AND 228 OF 2009 Page numbers rendered in O.S No.173 of 1997, O.S No.156 of 1997 and O.S No.195 of 1999 rendered under the common judgment dated 25/03/2003 with the other suit O.S No.21 of 2000, three appeals were preferred, R.F.A No.315 of 2004, R.F.A No.141 of 2005 and R.F.A No.142 of 2005 before this court. At the time of hearing of these three appeals, on the consensus arrived by the parties, the judgment impugned was set aside and the case was remitted to the court below for fresh disposal with some specific directions. The court below was directed to frame a scheme for the administration of the temple and its properties. While forming the administration committee as per the provisions of the scheme, it was further directed that the court below shall take care to give representation to the family members, who claimed preexisting rights over the temple, in the committee. 3. Pursuant to the remand so made under the judgment dated 17/03/2008 rendered by this court, it appears, only the suit O.S No.173 of 1997 was prosecuted by C.R.P.Nos.139 AND 228 OF 2009 Page numbers the parties. The other two suits filed by Mutharamman Andi Achari Trust, both suits for injunction were given a go by and not pursued upon. Draft schemes were submitted by both sides before the court in O.S No.173 of 1997. After examining the draft schemes, the court below passed the order impugned in these two revisions approving a scheme with some modifications. Apparently the court below was under a misconception that a preliminary decree had already been passed in the suit and thereafter direction had been issued by this court in the appeals for approval of a scheme. Though in the nature of the suit laid under Section 92 of the Code of Civil Procedure, a preliminary decree directing for preparation of a scheme enabling the parties to submit their scheme was necessary, in view of the limited scope of the remand directing for passing of a final judgment disposing the suits, there is no scope for any preliminary decree at all. Whatever that be, the impugned order shows, the court below without disposing the suits, passed an order approving a draft scheme with some modifications. That too is patently erroneous and unsustainable. The suit should C.R.P.Nos.139 AND 228 OF 2009 Page numbers have been disposed of after approval of the scheme. Further more, it is seen, the court below has elaborately considered the scheme and also made it part of its order. In a scheme suit under Section 92 of the Code of Civil Procedure, if the court after examining the scheme finds that modification of the draft scheme is essential, then, the reasons for such modification alone need be reflected in its judgment as the scheme approved with modification effected has to be made part of the decree to be rendered on the basis of the judgment. In view of the decision rendered by the court below as an order no other remedy is left to the aggrieved parties other than to prefer the revisions before this court wherein they wanted to challenge the merit of the orders passed by the court approving the scheme overruling their objections. After taking note that the scope of revision is limited, the parties have applied for conversion of the revision into appeals which also was impermissible because no decree had been passed in the suit. The main grievance canvassed by the revision petitioners is that their objections to the approved scheme C.R.P.Nos.139 AND 228 OF 2009 Page numbers presented were not taken into serious consideration by the court below. In fact, the court below has proceeded as if the temple belong only to Tamil Viswa Brahmin Association whereas the association had been formed and registered under Act 12 of 1995 in respect of a preexisting trust. By the registration of an association in respect of a trust, the character of the trust will not change and it will continue as such. So much so, the temple stated to be originally belonging to the Tamil Viswa Brahmin as its beneficiaries has to be recognised and continued as such. Registration of an association at the most can only be considered as a measure adopted for administering the temple and its affairs. Though I am not considering the challenges raised in the revision against the order rendered by the court below as it is found that the court below has to pass a final judgment disposing of the suit to avoid further complications the above observations are made. Another objection canvassed before me was that the draft scheme contain a provision permitting alienation of the trust properties on the basis of resolution adopted by the managing committee of C.R.P.Nos.139 AND 228 OF 2009 Page numbers the temple. I do not want to express any opinion on the challenge so raised which the court has to examine with reference to the law applicable to a public trust. Setting aside the impugned order, I direct the court below to pass a final judgment after considering the two objections canvassed by the contesting parties as aforesaid and in doing so, if at all any modification is made in the scheme, the reasons thereof alone need be reflected in the judgment. The court below is directed to dispose the suit approving the draft scheme, with or without modifications, after hearing both sides, at any rate before closing of the courts for the mid summer vacation 2010. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv C.R.P.Nos.139 AND 228 OF 2009 Page numbers