Kerala High Court
Jeernodhara Samithi Of Sri Kedenji vs Kedenji Mahavishnu Kshethra Seva ... on 14 February, 2012
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933
RFA.No. 101 of 2011 (E)
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OS.1/2009 of DISTRICT COURT & SESSIONS & MACT,KASARAGOD
APPELLANTS/PLAINTIFFS:
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1. JEERNODHARA SAMITHI OF SRI KEDENJI
SRI.MAHAVISHNU KSHETHRAM KEDENJI REPRESENTED BY
ITS SECRETARY T.RAMESH.
2. P.RAMA, AGED 59 YEARS -DO- -DO-
3. RAMESH ALVA, AGED 28 YEARS -DO-- -DO-
4. SRI.VISHNU PRIYA BHAJANA SANGHA,
REPRESENTED BY 1ST PLAINTIFF
BY ADV.SRI.T.K.VIPINDAS
SMT.P.K.PRIYA
RESPONDENTS/DEFENDANTS:
---------------------------------
1. KEDENJI MAHAVISHNU KSHETHRA SEVA SAMITHI,
REPRESENTED BY ITS PRESIDENT SRI.SATHYANARAYANA M
AGED 69 YEARS AND ON PERSONAL CAPACITY,
P.O. PERDALA - 671 551
2. SATHISH SHETTY, AGED 42 YEARS,
SECRETARY OF SRI, MAHAVISHNU KSHETHRA SEVA
SAMITHI KEDENJI, P.O. PERDALA - 671 551
3. UMESH RAI, AGED 32 YEARS TREASURER OF
SRI,MAHAVISHNU LSHETHRA SEVA SAMITHI KEDENJI,
P.O PERDALA - 671 551
4. M.RAGHURAMA ALVA,AGED 64 YEARS,
VICE PRESIDENT, SRI
MAHAVISHNU LSHETHRA SEVA SAMITHI KEDENJI,
P.O PERDALA - 671 551
(CNTD....2)
RFA.No. 101 of 2011 (E)
::2::
5. THIRUPATHIKUMAR BHAT, AGED 52 YEARS
VICE PRESIDENT, SRI
MAHAVISHNU LSHETHRA SEVA SAMITHI KEDENJI,
P.O PERDALA - 671 551
6. RAMA MASTER,AGED 62 YEARS
JOINT SECRETARY OF, SRI
MAHAVISHNU LSHETHRA SEVA SAMITHI KEDENJI.
P.O PERDALA - 671 551
7. ANANDA B. AGED 52 YEARS
JOINT SECRETARY OF, SRI
MAHAVISHNU LSHETHRA SEVA SAMITHI KEDENJI.
P.O PERDALA - 671 551
8. B.VASANTHA PAI, AGED 53 YEARS,
RESIDING AT BADIADKA, P.O PERDALA - 671 551
9. N.SUBBA RAO, AGED 75 YEARS,
NELLIKUNJI HOUSE, P.O PERDALA - 671 551
10. BHASKARA RAO KEDENJI, AGED 62 YEARS
SINDHURA HOUSE, HOSANGADI,
MANJESWARAM P.O - 671323
11. N.RAJASEHEKHARA RAO, AGED ABOUT 40 YEARS
NELLIKUNJE HOUSE, P.O. UKKINADKA - 671 552
BY ADV.SRI.S.V.BALAKRISHNA IYER (SR.) FOR R9 TO R11
SRI.P.B.KRISHNAN FOR R9 TO R11
SMT.GEETHA P.MENON FOR R9 TO R11
SRI.P.M.NEELAKANDAN FOR R9 TO R11
SRI.P.B.SUBRAMANYAN FOR R9 TO R11
SRI.K.G.GOURI SANKAR RAI FOR R1,6 & 8
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14-02-
2012, ALONG WITH WPC. 8222/2007, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
RFA.No. 101 of 2011 (E)
ORDER ON I.A.NO.525/2011
DISMISSED.
14.2.2012. SD/- HARUN-UL-RASHID, JUDGE.
// TRUE COPY //
P.A TO JUDGE.
HARUN-UL-RASHID, J.
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R.F.A.No.101 of 2011
and
W.P.(C).No.8222 Of 2007
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Dated this the 14th day of February, 2012.
J U D G M E N T
R.F.A Plaintiffs are the appellants. The appeal is directed against the judgment dated 30.10.2010 in O.S.No.1/2009 on the file of the District Court, Kasaragod. The 1st plaintiff is the Jeernodharana Samithy of Sri Kedenji Mahavishnu Kshethram. Plaintiffs 2 & 3 are the members of the 1st plaintiff Samithy. The 4th plaintiff is the Sri Vishnu Priya Bhajana Sangham. 1st defendant is Kedenji Mahavishnu Kshethra Seva Samithy. Defendants 2 to 8 are members of the 1st defendant Samithy. Defendants 9 to 11 are alleged to be the trustees of Sri Kedenji Mahavishnu Temple. Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit.
2. Plaintiffs filed the suit seeking the following reliefs:
"a) To declare that the Society Kedenji Sri Mahavishnu Kshethra Jeernodharana Samithy is still functioning and the resolution passed in alleged general body dated 29.3.2009 is unlawful and it has no power or locus standi to pass a resolution dissolving the aforesaid ::2::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 society under Section 12 & 13 of Societies Registration Act, 1860.
b) To declare that the Seva Samithy has no title or right legally or morally to takeover the administration as per the alleged resolution passed by the alleged general body meeting of the Society kedenji Sri Mahavishny Kshethra Jeernodharana Samithy, Kedenji and the interfering and handling the property of aforesaid temple is illegal and amounts to misappropriation and as a consequence whereof restraining the office bearers of alleged Seva Samithy from administering the temple or otherwise causing obstructing to the devotees from worshipping in the temple.
c) To declare the 4th plaintiff has right to function in the premises of the Kedenji Sri Mahavishny Kshethra Temple as of right such as 108 Pradakshina in the month of 'Vishakham Ramayana Masam' in the month of Karkidakam, Srikrishna Janmashtami in the month of Chingam, Mandala Pooja in the month of December and for conducting Bhajana on 1st Sunday of every Malayala Masam".
The court below dismissed the suit for want of leave under Section 92 Code of Civil Procedure.
3. The 1st plaintiff is a Society registered under the Societies Registration Act, 1860. Renovation of the temple is ::3::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 one of the object as per the Memorandum of Association of the Society. It is alleged in the plaint that the 4th plaintiff is one of the Bhajana Sangam affiliated to the 1st plaintiff Society. The 1st plaintiff Society was registered on 24.1.1996 with registration No.37/1996. It is alleged in the plaint that defendants 2 to 8 and others who were members of the 1st plaintiff Society on 29.3.2009 passed resolution dissolving the 1st plaintiff Samithy without convening the General Boady of the aforesaid Samithy as provided under the Bye-law and the provisions of the Societies Registration Act and thereafter defendants 1 to 8 started handling and managing the temple administration illegally. It is averred in the plaint that resolution passed on 29.3.2009 by the alleged General Body convened has no validity and hence void ab initio. It is further averred that the 1st plaintiff Samithy has altogether 134 members and only a very few members among them attended the alleged General Body meeting. It is stated that the said General Body convened is not in compliance with Sections 12 & 13 of the Societies Registration Act, 1860, and therefore, the General body convened and decision taken by the ::4::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 General Body on 29.3.2009 is a nullity. It is also averred in the plaint that the 1st defendant Society, alleged to be registered under the Societies Registration Act, 1860, on 4.3.2009, has no right to take over the management of the temple since the 1st plaintiff is still functioning in law and fact and every resolutions alleged to be passed by the 1st defendant is a nullity. In paragraph 10 of the plaint it is averred that defendants 9 to 11 are the hereditary trustees of the temple.
5. Defendants 1 to 8 filed a joint written statement denying the averments in the plaint and prayed for dismissal of the suit. According to the defendants, the 1st plaintiff Society and 1st defendant Society are public trust, religious in nature, that in the case of breach of trust created for public purpose, suit has to be filed as per Section 92 Code of Civil Procedure after obtaining permission of the court. The defendants prayed for dismissal of the suit for want of sanction under Section 92 Code of Civil Procedure. In the written statement, defendants denied the material averments in the plaint. Defendants 9 to 11, who were stated to be the hereditary trustees, filed written statement ::5::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 supporting the claim of the plaintiffs. In the written statement filed by defendants 1 to 8, it is inter alia stated that the 1st defendant Society was formed on 4.3.2009 and the same was registered by the District Registrar of Kasaragod as per the Societies Registration Act.
6. The District Court, in the impugned order, considered the question of jurisdiction and maintainability of the suit as a preliminary issue in the context of Section 92 Code of Civil Procedure. The prayers in the plaint and the averments in the body of the plaint would reveal that the dispute is regarding the affairs of the 1st plaintiff Samithy. The 1st plaintiff and other plaintiffs are questioning the legality of the resolution passed in the alleged General Body meeting dated 29.3.2009 and prayed for a declaration that the resolution is unlawful and that the alleged General Body has no power or locus standi to pass a resolution dissolving the 1st plaintiff Society under Section 12 & 13 of Societies Registration Act, 1860. The 1st defendant Society was formed in 2009. The dispute essentially relates to the administration of the 1st plaintiff Society. The learned counsel for ::6::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 the appellants/plaintiffs contends that a Society registered under the Societies Registration Act would not fall within the purview of the trust and therefore, the question of seeking relief under Section 92 Code of Civil Procedure does not arise at all. It is pointed out that the dispute is essentially between the two entities who claims right to assist the trustees in the management of the temple. The learned counsel submits that the finding was entered into by the learned judge without understanding the scope and ambit of the suit. The learned counsel submits that the trial court proceeded to decide the issue as if the suit is for the administration of the trust. In fact there is no admission on the part of the plaintiffs that the 1st defendant Samithy was administering the temple and had completed the renovation of the temple. In paragraph 9 of the judgment the learned judge observed as follows:
"It is an admitted fact that Jeernodhara Samithy has raised funds by receiving contributions from public and devotees for the purpose of renovation of the temple. It is also admitted that Mahavishnu Kshethra Seva Samithy was administering the temple and they have completed renovation of temple by the amount ::7::
R.F.A.No.101 of 2011 and W.P.(C).No.8222 Of 2007 entrusted with them by devotees and public as contribution for that purpose".
The learned counsel for the appellant submits that the observations of the court below that it is admitted that 1st defendant Mahavishnu Kshethra Seva Samithy was administering the temple and they have completed the renovation of the temple by the amount entrusted with them by devotees and public as contributions for that purpose and the next sentence that "so, it can be seen that there was a trust created by consensus of people of the locality and the Trust was named as Kedenji Sri Mahavishnu Kshethra Jeernodhara Samithy" are factually incorrect. It is pointed out that the plaintiffs have not admitted at any point of time that 1st defendant Seva Samithy was administering the temple and they have completed the renovation of the temple. In paragraph 4 of the plaint it is averred that the 1st plaintiff Society had undertaken the renovation work of the temple and that the said Samithy since 2005 was not functioning properly due to the unlawful interference by the defendants and which was objected by the plaintiff orally and in writing. The learned judge found that the ::8::
R.F.A.No.101 of 2011 and W.P.(C).No.8222 Of 2007 1st plaintiff is a trust mainly on the observations quoted above. The dispute essentially does not relate to the administration of the temple, but, the dispute is relating to the administration of the 1st plaintiff Society. The question as to whether leave has to be obtained under Section 92 Code of Civil Procedure will have to be decided by the court on the basis of the pleadings and materials available. Plaintiffs' suit is for a declaration that the 1st plaintiff Samithy is still functioning and that the 1st defendant Samithy has no right to administer the temple. The Court observed that the effect of the said prayer, if granted, administration of the temple has to be transferred to a Society which has to be dissolved by the trustee. The court assumes that the 1st plaintiff Society has been dissolved by the trustees. In fact the reliefs are sought against the rival Society formed subsequent to the alleged General Body Meeting on 29.3.2009. The findings are entered on the basis of the observations that there is no dispute regarding the fact that the 1st defendant Samithy has been administering the temple and that the same was constituted and registered for the purpose of renovation of ::9::
R.F.A.No.101 of 2011 and W.P.(C).No.8222 Of 2007 the temple. The court below also concluded that as per the resolution dated 29.3.2009, the functioning of the 1st plaintiff has come to an end. This observation is also directly against the pleadings in the plaint. Prima facie, the question as to whether leave under Section 92 Code of Civil Procedure is required will have to be decided on the basis of the pleadings. The court also observed that since the renovation of the temple was completed the purpose for which the 1st plaintiff Samithy was constituted was over. In fact, this observation was made without noticing the objects of the 1st plaintiff Samithy. The Bye-law shows that renovation of the temple is only one of the object of the 1st plaintiff Society. The court also proceeded on the basis that the 1st defendant Samithy is the trustee of the temple and that if a decree as prayed for is granted, it would tantamount to removal of the trustee and substitution thereof. On the basis of the said observation, the court below held that leave of the court is essential for the purpose of instituting a suit.
7. I have already stated the prayers in the suit, scope of the suit and the matters in dispute. The court below proceeded ::10::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 on the basis as if the dispute is regarding the administration of the affairs of the temple. Since the conclusions are reached on the basis of an erroneous reading of the facts, this Court is of the view that the matter requires reconsideration. The court below shall reconsider the issues afresh and pass appropriate orders.
8. The petitioner in W.P.(C).No.8222/2007 is a member of the Kedenji Sri Mahavishnu Kshethra Jeernodhara Samithy.
He was the former Secretary of the Samithy which is a Society registered under the Societies Registration Act. The main prayer in the writ petition is for a direction directing the 1st respondent to convene the General Body Meeting of the members of the Kedenji Sri Mahavishnu Kshethra Jeernodhara Samithy elected prior to 14.10.2005 and to conduct election and for a direction to the 1st respondent to convene the General Body of the members elected prior to 14.10.2005 and to conduct election under the supervision of the 2nd respondent.
9. The relief is mainly sought is against the President of the 1st respondent, who is the appellant in the connected appeal. In the suit filed by the Kedenji Sri Mahavishnu Kshethra ::11::
R.F.A.No.101 of 2011
and W.P.(C).No.8222 Of 2007 Jeernodhara Samithy as plaintiff challenging the resolution passed by some of the members of the Samithy dissolving the Society, the very same issue as to whether the Kedenji Sri Mahavishnu Kshethra Jeernodhara Samithy is functioning or not is the subject matter in the writ petition. Since the matter is now pending before the civil court, the petitioner can seek appropriate reliefs before the civil court.
In the result, the appeal is allowed. The judgment dated 30.10.2010 dismissing the suit for want of sanction under Section 92 Code of Civil Procedure is set aside. The case is remanded to the court below for fresh disposal, after affording an opportunity of being heard to the parties on both sides. The parties shall appear before the court below on 14.3.2012. The writ petition is disposed of without prejudice to the right of the petitioner to move the civil court for appropriate reliefs.
HARUN-UL-RASHID, Judge.
bkn/-