A.M. Parameswaran Namboothiripad v Guruvayoor Devaswom Committee and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939** **RFA.NO. 319 OF 2016 (B) ------------------------** **AGAINST THE JUDGMENT IN O.S. NO.5/2014 OF III ADDITIONAL DISTRICT JUDGE, THRISSUR DATED 12-04-2016** **-----------------------** **APPELLANT(S)/PLAINTIFF: ----------------------** **A.M.PARAMESWARAN NAMBOOTHIRIPAD, AGED 46 YEARS, S/O. NARAYANAN NAMBOOTHIRIPAD, ANDALADI MANA, MARUDHUR P.O., PATTAMBI, PALAKKAD DISTRICT 679 306.** **BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.P.SANJAY SMT.A.PARVATHI MENON** ## **RESPONDENT(S)/DEFENDANTS:** **-------------------------** **1. GURUVAYOOR DEVASWOM COMMITTEE, REPRESENTED BY ITS CHAIRMAN GURUVAYUR DEVASWOM, GURUVAYUR, THRISSUR-680 101.** ## **2. ADMINISTRATOR,** **GURUVAYUR DEVASWOM, GURUVAYUR, THRISSUR 680 101.** **3. GURUVAYUR DEVASWOM,** **THANTHIRI, GURUVAYUR DEVASWOM OFFICE, GURUVAYUR-680 101.** **4. VASUDEVAN NAMBOOTHIRI, AGED 50 YEARS,** **S/O.KAKKAT MANAKKAL VASUDEVAN NAMBOOTHIRI, KODUMUDI DESOM, VALIYAKUNNU AMSOM, THIRUR TALUK, MALAPPURAM, NOW RESIDING AT PULAMANTHOLE AMSOM & DESOM, PERINTHALMANNA TALUK, PULAMANTHOLE P.O., MALAPPURAM DISTRICT-679 323** **2/-** **-2-** ## **RFA.NO. 319 OF 2016 (B)** **------------------------** ## **5. KRISHNAN NAMBOODIRI,** **S/O.LATE NEELAKANDAN NAMBOODIRI, POTTAKUZHI MANA, VAVANNUR DESOM, MAGALASSERY AMSOM, PATTAMBI TALUK, PALAKKAD DISTRICT, NOW RESIDING AT MALLISSERY PARAMBIL, GURUVAYUR VILLAGE, DESOM, CHAVAKKAD TALUK-680 101.** ## **6. SATHEESAN NAMBOODIRI,** **S/O. ITTIRAVI NAMBOODIRI, PAZHAYATHUMANKKAL, PUTHENMPALLI DESOM, IRINGAPRAM DESOM, GURUVAYUR VILLAGE, CHAVAKKAD TALUK-680 101.** **R1 & R2 BY ADVS. SRI.P.GOPAL R3 BY ADVS. SRI.K.RAMACHANDRAN SMT.M.R.MINI R4 TO R6 BY ADV. SRI.M.P.ASHOK KUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** **RFA.NO. 319 OF 2016 (B)** **------------------------** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **EXHIBIT P1 : TRUE PHOTOSTAT COPY OF THE SAID ADVERTISEMENT PERTAINING TO THE SELECTION TO THE POST OF MELSANTHI, APPEARED IN THE MATHRUBHOOMI DAILY DATED 04.08.2016.** **RESPONDENT(S) EXHIBITS : NIL** **NS** **/ TRUE COPY / P.A. TO JUDGE** ## **'C.R.'** ## **P.D. RAJAN, J.** ## **-----------------------R.F.A. No.319 of 2016 ---------------------------------Dated this the 18[th] day of September, 2017** ## **J U D G M E N T** This appeal is preferred against the judgment in O.S. No.5 of 2014 of the 3[rd] Additional District Judge, Thrissur by the plaintiff. The suit was filed by the plaintiff for a declaration and mandatory injunction against the defendants. 2. The plaintiff's case in the lower court is that the 2[nd] defendant invited application for appointment of Melsanthi in the Guruvayoor Devaswom temple for a period from 01.10.2012 to 31.03.2013 by notification dated 04.08.2012 in which the main qualification prescribed therein was that the candidates should be from Sukapuram or Perumanam villages with 'Agnihotram' and 'Bhattavrithi' for the post of Melsanthi. The appellant's father was the Melsanthi of Guruvayoor Sreekrishna Temple for three times who possess the qualifications as per the temple custom. The appellant is not having Agnihotram and Bhattavrithi, but he R.F.A. No.319 of 2016 2 contended that the above notification is in derogation to the custom practiced from time immemorial. Hence, he approached the lower court for the issuance of a mandatory injunction and a declaration that non-inclusion of person possessing Abhijatyam alone for the post of Melsanthi is arbitrary and illegal. 3. In the lower court, respondents 1 to 4 resisted the suit by filing written statements and contended that the notification was issued on the basis of resolution passed by the Guruvayoor Devaswom on 04.03.1998 and the suit is not maintainable on the ground of non-joinder of necessary parties. The Thandhri who is final word in religious matters of the temple including the decision as to who should conduct rituals as a Melsanthi and on the basis of that, the Devaswom fixed the qualification of Agnihotram and Bhattavrithi as the basic qualification for the post of Melsanthi. The appointment of the plaintiff's father as a Melsanthi was a mistake happened in the past, which was rectified by the Devaswom. The Devaswom is a statutory body and the resolution of the committee has not been challenged after R.F.A. No.319 of 2016 3 1998, therefore it is in force and the suit is not maintainable on the above ground, consequently the lower court dismissed the suit. 4. When the matter came up for hearing, the learned counsel appearing for the appellant and respondents submitted that even without framing any issues, the suit was dismissed by the lower court. When case is not decided on the issues settled by the court or on any preliminary issue, it is unable to decide this appeal by the reason of this defect. 5. The case has not been decided by the lower court on the basis of any issues, however, the appellant thinks that he is holding the prescribed qualifications notified by the 2[nd] defendant. In such a situation, it is better for the lower court to scrutinize whether the act of the 2[nd] defendant is illegal or arbitrary. Therefore, the court has to settle issues in a case, which must relate to the main questions in the suit. Numerous circumstances are set out by the appellant, more or less for establishing his right for applying for the post of Melsanthi. Framing of issues has a very important bearing in the trial and R.F.A. No.319 of 2016 4 decision of a case. By framing issues each party fully knows the exact question to be tried in the suit, which guides the parties to lead evidence in that case. Therefore, settlement of issues bears an important role in the trial and decision of the case. The averments in the plaint and written statements constitute the pleadings in a case and that is the first stage of the suit, the differences between the parties are highlighted before the court through the pleadings. It is the primary responsibility of the court to examine at the first hearing of the parties and ascertain the proposition of law and fact, the parties are at difference and thereafter the court has a duty to frame and record the issues on the questions raised by the plaintiffs and defendants. The court is competent to raise issues and preliminary issues including the maintainability of the suit at that time. 6. In this context, I may refer the decision of the three Judge bench of the Apex court in **J.K. Iron and Steel Co. Ltd., Kanpur** v. **The Iron and Steel Mazdoor Union, Kanpur (AIR 1956 Supreme Court** R.F.A. No.319 of 2016 5 **231)** . That was a case in which the apex court considered whether the tribunals are bound by the technicalities of civil court and explained the power of tribunals and courts. In paragraph 24 of the above decision, it is held as follows: Now the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ. It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper. Therefore, the pleadings have to be ascertained and issue has to be settled to find out the real dispute between the parties in order to narrow the area of conflict. 7. The High Court of Karnataka had the occasion to consider a similar issue in **R. Gopalakrishna** v. **Karnataka State Financial Corporation** (Laws (KAR) 2008 143) in which the trial court without going into the merits of the case dismissed the suit on the short question of maintainability of the suit. In that case, the Karnataka High Court held that: 9. AFTER hearing both the learned Counsel and on going through the impugned judgment and decree, at the R.F.A. No.319 of 2016 6 outset it is to be noted that the procedure adopted by the trial Court is totally illegal and contrary to the provisions of the Code of Civil Procedure, 1908. 10. It is to be noted that after framing of the issues the trial Court is required to record the evidence and thereafter proceed to give its judgment. In the present case, there is no dispute that even before recording of the evidence of both sides the trial Court while considering the Interlocutory application filed by the plaintiff for temporary injunction, straight away proceeded with the final arguments and held the suit as not maintainable and dismissed the suit. 11. THE law requires that after framing of issues as per Order XVI to xix of CPC, the Court is required to record the evidence and then proceed for hearing of the suit and pronounce the judgment as per Order XX of CPC. The trial Court in our view was in error in pronouncing the judgment without recording the evidence. 12. EVEN after the question of maintainability was raised by the defendant and issue was framed in this regard at the best the trial Court should have heard only on the question of maintainability and then depending upon its pronouncement whether the suit is maintainable or not proceeded further under Order XIV Rule 2 of CPC. Not following this well settled and mandatory procedure, in our view renders the entire judgment as illegal and liable to be set aside. 8. A similar view was taken by the TravancoreCochin High Court in **Kesavan Janardhanan Plappalli and others** v. **Narayanan Janardhanan Plappalli and** R.F.A. No.319 of 2016 7 ## **other AIR 1953 Travancore- Cochin 118** and it was ## held that; The issues must relate to the main questions in the suit and must be calculated to direct the attention of the parties to those questions. They must be sufficiently specific and should be confined to material facts. Subsidiary matters of fact on which the parties might be at variance ought not to be made the subject matter of an issue as that would be embarrassing. It is no doubt the duty of the Court to frame issues. Should, however, proper issues be not framed, it is up to the parties to move the Court to get proper issues framed. If parties omit to attend to this matter, their default may lead to consequences over which they may not feel comfortable. The parties, however, will not be absolutely concluded by what happens in the trial Court as in appropriate cases, the higher Court in appeal or even in second appeal can and will amend the existing, or add new, issue or issues and remit the same for consideration and finding by the lower Court or remand the entire case for fresh disposal as the facts and circumstances may require. See-'Oolagappa Chetty v. D. Arbuthnot', 1 Ind App. 268 (PC);-'Balagangadhar Tilak v. Sreenivas Pandit', 39 Bom 441 (PC) at pp. 467-468, and - 'The West End Watch Co. v. Berna Watch Co.', 35 Bom 425. The Court below found that the judgments, Exhibits P and XXV, were vitiated by fraud that Ext, XXVIII was also so vitiated and set aside the judgments and the Udampadi. On the question of limitation raised by the defendants, which depended upon the date of birth of the plaintiff, the learned Judge did not record any finding but nevertheless found that the claim R.F.A. No.319 of 2016 8 was not barred by limitation. 9. Applying the principles deductable from the above facts, the primary responsibility of the Additional District Judge is to consider the pleadings of both parties and frame proper issues in the suit. When there is mixed question of facts or question of law, both parties have the right to answer those issues in the right manner. Without considering the legal proposition and the pleadings, the above suit was dismissed by the learned Judge. If no issues are framed and the suit is dismissed without raising any issues regarding the maintainability, the dismissal of the suit is unsustainable in law. 10. In the result, the judgment of the 3[rd] Additional District Judge, Thrissur is hereby set aside. As I have noted that the trial court recorded the finding without framing any issues and recording the evidence, it would be just and proper to remand the case to the trial court for fresh consideration and disposal as per law. As the matter is having public importance, I direct the trial court to conclude the entire procedure viz. framing of issues, recording of evidence, hearing the arguments and R.F.A. No.319 of 2016 9 pronouncing judgment within six months from the date of receipt of a copy of this judgment. Both parties are directed to appear before the lower court on 27.10.2017. It is made clear that all the contentions raised by both parties on merit are left open. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS P.A. To Judge