Kerala High Court
P.V.Mohanan vs Payyanakkal Sree Bhagavathy Committee
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2017/14TH MAGHA, 1938
OP(C).No. 886 of 2014 (O)
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AGAINST THE ORDER IN OS 228/1995 of III ADDL.SUB COURT, KOZHIKODE
PETITIONERS:
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1. P.V.MOHANAN, AGED 52 YEARS,
S/O.CHOYIKUTTY, PADANNA VALAPPIL, PAYYANAKKAL,
P.O.KALLAI, KOZHIKODE-673 003
2. C.V. SUBRAMANIAN, AGED 58 YEARS,
S/O.GOPALAN, PAYYANAKKAL HOUSE, PANNIYANKARA P.O.KALLAI,
KOZHIKODE-673 003.
3. B.K. SIVADASAN, AGED 63 YEARS,
S/O.AANDI, BHAGAVATHIKANDI HOUSE, P.O.KALLAI,
KOZHIKODE-673 003
4. K. BAIJU, AGED 41 YEARS,
S/O.MOOTHORAKUTTY, KULATHUMMARATHU HOUSE, KALLAI PO
KOZHIKODE 673 003.
5. T. SHAJI, AGED 39 YEARS, S/O.BALAN
THYKANDI HOUSE, KALLAI PO, KOZHIKODE 676 503.
6. K. DEVAPRASAD, AGED 55 YEARS,
S/O.MOOTHORAKUTTY, KAAPPAYIL HOUSE, KALLAI PO,
KOZHIKODE 673 003.
7. P. RAMESHAN, AGED 43 YEARS,
S/O.SREEDHARAN, PAYYANAKKAL HOUSE, P.O. KALLAI
KOZHIKODE 673 003.
8. SPAKI CHANDRAN,AGED 38 YEARS,
S/O.CHANDRAN, KADAPPAYIL HOUSE, KALLAI PO,
KOZHIKODE 673 003.
BY ADVS.SRI.N.M.MADHU
SMT.C.S.RAJANI
RESPONDENTS:
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1. PAYYANAKKAL SREE BHAGAVATHY COMMITTEE
REPRESENTED BY SECRETARY, VALIYAPARAMBIL DASAN
S/O.VELAYUDHAN, PANNIYANKARA, KALLAI P.O.
KOZHIKODE 673 003.
2. PAYYANAKKAL SREE BHAGAVATHI COMMITTEE
REPRESENTED BY PRESIDENT, POONCHOLA APPUTTY,
S/O.APPU, KALLAI P.O, KOZHIKODE - 673 003.
3. T.REMESAN
S/O.SAMIKUTTY, THAZHATHAYIL, NADUVATTOM, BEYPORE
KOZHIKODE - 673 015.
4. B.K. AJALESH
S/O.DEVADASAN, BHAGAVATHIKANDI HOUSE, P.O.KALLAI
KOZHIKODE - 673 003.
5. VIVEKANANDAN, S/O.RARU
KADAPPAYIL HOUSE, KALLAI P.O, KOZHIKODE-673 003.
6. K. SAJEEVAN
S/O.BHASKARAN, KALATHUMMARATHU HOUSE, P.O.KALLAI
KOZHIKODE-673 003.
7. P.RAMAN, S/O.KANDAN
PADANNAVALAPPIL, P.O.KALLAI KOZHIKODE-673 003.
8. K. VINOD KUMAR,
S/O.BHASKARAN, KADAPPAYIL HOUSE, P.O.KALLAI,
KOZHIKODE-673 003.
R3 -R 8 BY ADV. SRI.T.C.SURESH MENON
R3 -R 8 BY ADV. SRI.P.S.APPU
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-02-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 886 of 2014 (O)
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APPENDIX
PETITIONERS' EXHIBITS
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EXT.P1 - TRUE COPY OF THE APPLICATION IN IA NO.2083/2012 IN IA
NO.1035/2006 IN OS NO.228/1995 ON THE FILES OF THE III ADDITIONAL SUB
COURT, KOZHIKODE.
EXT.P2 - TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS ONE AND
TWO TO EXT.P1
EXT.P3 - TRUE COPY OF THE ORDER DATED 11-11-2013 IN IA NO.2083/2012
IN IA NO.1035/2006 IN OS NO.228/1995 ON THE FILES OF THE III
ADDITIONAL SUB COURT KOZHIKODE.
RESPONDENTS' EXHIBITS: NIL
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/TRUE COPY/
P.S TO JUDGE
cl
K.RAMAKRISHNAN, J.
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O.P.(C)No.886 of 2014
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Dated this the 3rd day of February, 2017
JUDGMENT
This is petition has been filed by the petitioner challenging Ext.P3 order passed by the court below dismissing the application to implead the petitioners under Article 227 of the Constitution of India.
2. It is alleged in the petition that O.S.No.228/1995 on the file of the 3rd Additional Sub Court, Kozhikode was filed by the plaintiffs in that suit for framing a scheme for management of the Payyanakkal Sree Bhagavathi Temple in respect of selection of hereditary and non-hereditary trustees. A scheme was framed by the court below in that suit and it was by making a provision for restricting the trustee board with number of 14, of which 7 hereditary trustees and 7 non-hereditary trustees and as regards the selection on non-hereditary trustees, it was mentioned that, it has to be nominated by the committee. Earlier the suit was dismissed. This was challenged by filing A.S.203/1999 by this court and this court by judgment dated 06.01.2004 remanded the matter with a direction to frame the scheme for the administration of the temple. Later by judgment dated 30.11.2005, the Sub Court, framed the scheme vesting the administration of the temple in the trustee board consists of 21 members, of which 7 will be hereditary trustees and 14 non-hereditary trustees, who will have to be O.P.(C)No.886 of 2014 2 selected and nominated by the committee now managing the temple. The plaintiff in the original suit filed RFA 123/2006 challenging the same. This court approved the scheme with following modification.
"The number of non-hereditary trustees is reduced from 14 to 7. They shall be nominated by the defendant committee. The thanthri shall preside over the meeting and in case of tie he shall have a casting vote."
3. A review petition was filed as RP 900/2007 against the judgment and that was dismissed by this court. Though an appeal was preferred before the Hon'ble Supreme Court, the same was also dismissed by judgment dated 29.09.2009. Thereafter an Advocate commissioner was appointed for the purpose of executing the same and directed the Advocate Commissioner to convene a meeting of all the nominated persons and thanthri of the temple for the purpose of formation of the trustee board in accordance with the terms of the scheme as modified by this court. Some other directions have also been issued to the commissioner by the court below. It is at that time that the petitioners herein filed the present petition as IA 2083/2012 to get themselves impleaded in the petition IA 1035/2006 in O.S.No.228/1995 and that petition was dismissed by the court below by the impugned Ext.P3 order. That is being challenged by the petitioner by filing this petition.
4. Heard Sri.N.M.Madhu, counsel appearing for the O.P.(C)No.886 of 2014 3 petitioners and Sri.P.S.Appu, counsel appearing for respondents 3 to 8 and others remained absent though notice was served on them.
5. The counsel for the petitioner submitted that the nomination of non-hereditary trustees to the board was done in an arbitrary manner and no committee meeting was convened for that purpose. The persons now nominated by respondents 1 and 2 are not proper persons to be appointed and that was done by the committee members. The selection was not done in a democratic manner. So they want to come record and assist the court in selecting the trustee board in a proper manner.
6. Counsel appearing for respondents 3 to 8 also supported the contentions of the petitioner. The counsel for the petitioner also submitted that the court below had dismissed the application on the ground that that there is another case pending challenging the nomination of the non-hereditary trustees and if they are agrieved, they can very well get themselves impleaded in that suit namely O.S.681/2009. But according to the counsel for the petitioners, the suit has already been dismissed. So they cannot go there and they can only approach the same court in which the further proceedings in connection with framing of the scheme is pending.
7. It is an admitted fact that the suit was earlier filed by the plaintiffs for framing a scheme for proper administration of the O.P.(C)No.886 of 2014 4 Payyanakkal Sree Bhagavathy Temple. It is also not in dispute that, though the suit was earlier dismissed, this court allowed the appeal and remanded the case with direction to frame a scheme and accordingly a scheme was framed by the Sub Court earlier, which was again challenged by filing RFA 123/2006 before this court and this court approved the scheme but only modified certain clauses regarding the number of non-hereditary trustees. This court reduced the number of non-hereditary trustees to 7 from 14. It was further mentioned that they shall be nominated by the defendant committee and it is also mentioned that the thantri shall preside over the meeting and in case of tie, thantri will have a casting vote. Though a review petition was filed, that was dismissed and the judgment was challenged before the apex court and the apex court dismissed the same. It is not seen from the order as to what is the purpose for which IA 1035/2006 in O.S.228/1995 was filed for appointment of an advocate commissioner. If it is for the purpose of supervising the meeting of the committee of the temple for selection of non-hereditary trustees, then what is the procedure adopted is also not clear from the order or also from the allegations in the petition for impleading filed by the present petitioners.
8. It is true that the petitioners were not satisfied with the manner in which the nomination of non-hereditary trustees were O.P.(C)No.886 of 2014 5 made to the trustee board of the temple on the basis of the scheme. They filed the application to get themselves impleaded in the proceedings, but that petition was dismissed by the court below on the ground that another suit has already been pending as OS681/2009 and if the petitioners have got any grievance, they can get themselves impleaded in that suit. But the counsel for the petitioner had produced the judgment of the Sub Court in OS 681/2009 which was filed by two of the members alleging that they are the members of the committee managing the temple challenging the selection of new hereditary trustees. That suit was dismissed as per judgment dated 07.03.2013 and this fact was not noted by the court below.
9. However the petitioners were not parties to the suit earlier. They did not come on record at the time when the original suit was filed, though it ought to have been filed under Order 1 Rule 8 of Code of Civil Procedure read with Section 92 of the Code of Civil Procedure. Once the scheme has already been framed, the petitioners cannot come on record at the later stage, even if they are proper parties to the proceedings or necessary parties to the proceedings. Only those representatives who were already on record or persons inheriting their right alone can later come on record to proceed with the proceedings. It is not clear from the O.P.(C)No.886 of 2014 6 order as to whether the nomination of the non- hereditary trustees were done under the supervision of the court and whether that nomination has become final or not and accepted by the court. If there is any objection pending before the court regarding the selection of non hereditary trustees or any of the parties have raised any objection regarding the same and that was not considered by that court so far, it is for that court to consider and pass appropriate orders in such objections.
10. If the nomination has already become final, then that cannot be reopened at this stage as well. Though the Court below had dismissed the application filed by the petitioners on the ground that their remedy is to get themselves impleaded in another suit, which was pending challenging the nomination, and that the suit has been already disposed of, which has not been considered by the Court below, this Court feels that the order can be sustained on another ground also. Since they were not parties to the proceedings earlier after the scheme is framed and implementation of the scheme has already been partly implemented by the Court, then they cannot come on record at a later stage as of right and the Court below was perfectly justified in dismissing the application stating that they are not entitled to come on record at a belated stage for the reasons stated by this O.P.(C)No.886 of 2014 7 Court as well.
11. However, if any objection regarding the nomination is pending with that Court and if no orders have been passed and the nomination of non-hereditary trustees has not become final, then the Court below is at liberty to consider those aspects as well after hearing both parties and pass appropriate orders and then dispose of the matter pending before that Court in accordance with law. If nomination has not become final, then the Court below also consider that aspect and pass appropriate orders after hearing both the parties appearing in the matter. If the process of selection of nomination has been completed and no objection is pending consideration, the same need not be reopened. Interim order of stay granted is vacated.
With the above directions and observations, this petition is dismissed. Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
ss & cl