Kerala High Court
Paravoor Puttingal Devaswom vs Sathyaseelan on 1 October, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
FAO.No. 189 of 2012 ()
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IA NO.1994/2011 IN IA NO.907/2011 IN OS.129/1956 of I ADDL. DISTRICT COURT,KOLLAM
APPELLANT(S)/RESPONDENTS:
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1. PARAVOOR PUTTINGAL DEVASWOM,
PARAVOOR VILLAGE, KURUMANDAL CHERRY,
REPRESENTED BY ITS DEVASWOM SECRETARY.
2. PARAVOOR PUTTINGAL DEVASWOM,
PARAVOOR VILLAGE, KURUMANDAL CHERRY,
REPRESENTED BY ITS PRESIDENT.
3. PARAVOOR PUTTINGAL DEVASWOM,
PARAVOOR VILLAGE, KURUMANDAL CHERRY,
REPRESENTED BY ITS DEVASWOM THAKKOLKAR-1.
4. PARAVOOR PUTTINGAL DEVASWOM,
PARAVOOR VILLAGE, KURUMANDAL CHERRY,
REPRESENTED BY ITS DEVASWOM THAKKOLKAR-2.
BY ADV. SRI.R.S.KALKURA
RESPONDENT(S)/PETITIONER:
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SATHYASEELAN,
S/O.LEKSHMANAN, CHITHACHERRY VEEDU,
KURUMANDAL CHERRY, PARAVOOR VILLAGE, KOLLAM.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
BY ADV. SRI.K.RAVI (PARIYARATH)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
01-10-2012, ALONG WITH OP(C) NO.2776/2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
THOMAS P. JOSEPH, J.
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F.A.O.No.189 of 2012
&
O.P.(C) No.2776 of 2012
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Dated this the 1st day of October, 2012.
JUDGMENT
O.P.(C) No.2776 of 2012 is admitted. Respondents appear through counsel. In F.A.O.No.189 of 2012, respondent has entered appearance. Parties are referred to as appellants and respondent as in F.A.O.No.189 of 2012.
2. O.P.(C) No.2776 of 2012 and F.A.O.No.189 of 2012 arise from Ext.P4, order dated 13.04.2012 (in O.P.(C) No.2776 of 2012) on I.A.No.1994 of 2011 in I.A.No.907 of 2011 in O.S.No.129 of 1956 of the I Additional District Court, Kollam.
3. Respondent in F.A.O.No.189 of 2012 who is the petitioner in O.P. (C) No.2776 of 2012 filed I.A.No.907 of 2011 requesting to appoint him as priest of the temple as per scheme framed by the court claiming that he possesses the necessary qualification for such appointment. That application was resisted by the appellants in F.A.O.No.189 of 2012 (respondents in O.P.(C) No.2776 of 2012) on various grounds including that respondent is not competent to be appointed as such. That application was dismissed by the learned Additional District Judge by order dated 28.10.2011. Later, the respondent filed I.A.No.1994 of 2011 seeking review of the order dated 28.10.2011 on I.A.No.907 FAO No.189/2012 & OP(C) No.2776/2012 2 of 2011. Respondent claimed that there are errors apparent on the face of record and other justifiable reason requiring a review of the order dated 28.10.2011. He contended that the finding entered by the learned Additional District Judge as to his suitability for appointment as priest is erroneous. He further contended that the finding of learned Additional District Judge that the decision as to appointment is to be taken by the managing committee of the 1st appellant is also not correct having regard to the various provisions of the scheme approved by the court. A further contention is that the respondent was not given opportunity to adduce evidence on I.A.No.907 of 2011.
4. The application for review (I.A.No.1994 of 2011) was resisted by the appellants. They contended that there is no error apparent on the face of record so that, an application for review is admissible.
5. The learned Additional District Judge passed order dated 13.04.2011 (marked Ext.P4 in O.P.(C) No.2776 of 2012). Learned Additional District Judge upheld certain of the findings he had entered on I.A.No.907 of 2011 as to the suitability of respondent to be appointed as priest and as regards power of the managing committee to make the appointment. But, learned Additional District Judge was of the view that the order dated 28.10.2011 on I.A.No.907 of 2011 is liable to be reviewed for the reason that the respondent was not given opportunity to adduce evidence. In paragraph 9 of the impugned order, learned Additional District Judge pointed out that the court committed a mistake in not posting I.A.No.907 of 2011 for evidence. It is further observed that actually the parties had not intended to adduce oral evidence on I.A.No.907 FAO No.189/2012 & OP(C) No.2776/2012 3 of 2011. But, considering the allegation that I.A.No.907 of 2011 was not posted for evidence, the court was of the view that the order dated 28.10.2011 is to be reviewed on that ground and I.A.No.907 of 2011 posted for further evidence and hearing. Accordingly the order dated 28.10.2011 on I.A.No.907 of 2011 was reviewed and I.A.No.907 of 2011 was posted for further evidence and hearing.
6. The appellants and the respondent are equally aggrieved by the said order.
7. The learned counsel for the appellants submits that learned Additional District Judge having upheld the contention that there is no error apparent on the face of record so far as some atleast, of the findings entered in the order dated 28.10.2011 on I.A.No.907 of 2011, those findings were sufficient to sustain the order dated 28.10.2011 and hence, even if it is assumed that I.A.No.907 of 2011 was not posted for evidence, that alone would not suffice a review of the order dated 28.10.2011. Learned counsel submits that if the order dated 28.10.2011 could be sustained on any one of the grounds mentioned therein, a review of the order is not required or permitted even if all the other grounds stated in the order are found to have error apparent on the face of the record. According to the learned counsel, learned Additional District Judge having upheld the finding in the order dated 28.10.2011 on I.A.No.907 of 2011 that the respondent is not suitable for appointment as priest and that it is within the power of the managing committee of the temple to make such appointment, FAO No.189/2012 & OP(C) No.2776/2012 4 the order dated 28.10.2011 was not to be reviewed even if it is assumed that no opportunity was given to the respondent to adduce evidence on I.A.No.907 of 2011.
8. The learned counsel for the respondent (petitioner in O.P.(C) No.2776 of 2012) contends that I.A.No.907 of 2011 was not posted for evidence and without adducing evidence, none of the findings learned Additional District Judge has entered in the order dated 28.10.2011 could have been arrived. It is argued that though the appellants had relied on a copy of the FIR to show that a criminal case was registered against the respondent, the court below failed to note that the said criminal case ended in a refer report. It is also the contention of learned counsel that it is without referring to the various provisions of the scheme that learned Additional District Judge took the view that the managing committee of the temple is empowered to appoint the priest. These findings suffer from a grave error on the face of record. Hence it was not proper for learned Additional District Judge while allowing I.A.No.1994 of 2011 to uphold some of the findings he has entered in the order dated 28.10.2011 on I.A.No.907 of 2011 and allowing the review only to the extent of permitting petitioner to adduce evidence.
9. I am inclined to think that as contended by learned counsel on either side, the impugned order cannot be sustained. For, the law relating to review informs me that if the order sought to be reviewed could be sustained on FAO No.189/2012 & OP(C) No.2776/2012 5 any one of the grounds on which it is based, a review is not permissible even if all other grounds on which the order is based suffer from an error apparent on the face of record.
10. In this case, learned Additional District Judge observed that some of the findings he has entered in the order dated 28.10.2011 do not suffer from any error apparent on the face of record. At the same time, learned Additional District Judge has thought it fit to allow the parties adduce evidence in support of the contentions in I.A.No.1194 of 2011. That stand of learned Additional District Judge is in conflict with the finding entered as to the sustainability of some of the grounds based on which order dated 28.10.2011 is passed.
11. Having heard the learned counsel on both sides the appropriate course is to allow the appeal and the Original Petition, set aside the order on I.A.No.1994 of 2011 and remit that application for fresh decision.
12. I make it clear that I have not expressed any opinion as to the sustainability of the order dated 28.10.2011 on any ground whatsoever. I have only referred to the law relating to the request for review. I also make it clear that it is for the learned Additional District Judge to dispose of I.A.No.1994 of 2011 as per law and as circumstances warranted.
Resultantly, FAO No.189/2012 & OP(C) No.2776/2012 6 F.A.O.No.189 of 2012 and O.P.(C) No.2776 of 2012 are allowed as under:
i. The order dated 13.04.2012 on I.A.No.1994 of 2011 (in I.A.No.907 of 2011) in O.S.No.129 of 1956 of the court of learned I Additional District Judge, Kollam is set aside.
ii. I.A.No.1994 of 2011 is remitted to the said court for fresh decision as per law and as circumstances warranted.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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