Krishnan Namboodirippad v. Sukumaran Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** ## **OP(C) NO. 3358 OF 2019** ## **AGAINST THE JUDGMENT IN OS 57/2018 OF SUB COURT, OTTAPPALAM** ## **PETITIONER:** KRISHNAN NAMBOODIRIPPAD, AGED 93 YEARS S/O KANHIYOORMANAKKAL LATE NEELAKANDAN NAMBOODHIRIPPAD, RESIDING AT KURIYACGIRA UNITY NAGAR, THRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER AJITH K.K., 49 YEARS, S/O K.M. NAMBOODIRIPPAD, ANIMA, SHORNUR P.O., PALAKKAD DISTRICT. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER ## **RESPONDENTS:** 1 SUKUMARAN NAIR, AGED 80 YEARS RTD., JCO, INDIAN ARMY, S/O LATE K.K. NAIR, KIZHAKKEDATH VEETTIL, VAROD AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 102. 2 STATE OF KERALA, REPRESENTED BY SECRETARY REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695 001. 3 MALABAR DEVASWOM BOARD, REPRESENTED BY COMMISSIONER, MALABAR DEVASWOM BOARD OFFICE, ERANJIPPALAM, KOZHIKODE DISTRICT, PIN - 673 006. 4 DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD OFFICE, ERANJIPPALAM, KOZHIKODE DISTRICT, PIN - 673 006. 5 K. VENUGOPAL, AGED 59 YEARS EXECUTIVE OFFICER, OOTTUKULANGARA KSHETHRAM, PERUVEMBA, PALAKKAD DISTRICT, PIN - 678 531. 6 SREE CHATHANKANDARKAVU BHARANASAMITHI, REPRESENTED BY SECRETARY, CHUNANGAD, VAROD P.O., O.P(C). No.3358/2019 2 OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679 102. BY ADVS. SRI.H.PRAVEEN (KOTTARAKARA) SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD SRI.K.MOHANAKANNAN SRI.R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(C). No.3358/2019 3 ## **V.G.ARUN, J.** ## **===========================** ## **O.P(C).No.3358 of 2019** ## **===========================** Dated this the 30th day of November, 2021 ## JUDGMENT The challenge in this original petition is against Ext.P5 order, by which the trial court allowed an application for impleadment filed by the first respondent. The petitioner is the plaintiff in O.S.No.57 of 2018 on the files of the Sub Court, Ottapalam. The suit is filed seeking a declaration that Sree Chathankandarkavu temple is not a public temple or a temple falling under the jurisdiction of the HR and CE (Malabar Devaswom Board) Act and the orders to that effect issued by the defendants are void and not binding on the plaintiff’s right and for a consequential injunction, restraining the defendants from obstructing the peaceful possession of the scheduled properties and conduct of affairs of the temple by the plaintiff. The fifth defendant in the suit is the Sree Chathankandarkavu Kshethra Bharana Samithi (hereinafter ‘the Samithi’), represented by its Secretary. The first respondent sought impleadment in the suit, claiming to be the President of the Samithi. It is alleged in the application for impleadment that the fifth respondent is not competent to represent the Samithi and is hand-in-glow with the petitioner. The petitioner filed objection to O.P(C). No.3358/2019 4 the application objected the prayer for impleadment, contending that the first respondent is neither a necessary party or a proper party. It was submitted that the Samithi is not a registered organisation and was impleaded as the fifth defendant only for the reason that it had filed a writ petition before the High Court pertaining to the administration of the temple. It was also stated that the first respondent along with the Secretary of the Samithi had filed an appeal challenging the order of the Deputy Commissioner, wherein his specific contention is that the temple is a private property belonging to Kanhiyur Mana and as per registered partition deed, the temple is set apart to the share of the petitioner. It was hence alleged that the attempt of the first respondent is to retract from the admissions in the appeal. By Ext.P5 order, the trial court allowed the application for impleadment. Hence the original petition. ## 2. Heard. 3. Learned counsel for the petitioner contended that the Samithi is already in the party array and the inter se dispute, if any, between the office bearers of the Samithi cannot be sorted out in the petitioner's suit. It is contended that even the Samithi is not a necessary or a proper party and the petitioner is intending to take steps for getting the Samithi deleted from the party array. Referring to the pleadings and the reliefs sought in the plaint, it is contended that no allegation is levelled or any relief sought against the Samithi. It is submitted that the challenge is with respect to the O.P(C). No.3358/2019 5 orders passed by defendants 1 to 3, viz, the State, the Malabar Devaswom Board and its Deputy Commissioner. 4. Learned counsel for the first respondent contended that 17 documents were produced to substantiate the contention that he is the person authorised to represent the Samiti and the trial court had allowed the application for impleadment on being convinced about the petitioner's authority. Reference is made to the judgment of this Court in OPC No.3127 of 2019, whereby this Court had dismissed the original petition filed by the petitioner challenging the dismissal of his application for appointing an advocate commissioner filed in O.S.No.57 of 2018. It is pointed out while dismissing the original petition, this Court had granted the liberty to the petitioner to move a fresh application for appointing an Advocate Commissioner. It is contended that by the judgment in O.P.C 3127 of 2019, this Court had impliedly acknowledged the petitioner’s right to be a party to the suit. 5. In reply, learned Counsel for the petitioner submitted that the judgment in OPC No.3127 of 2019 was rendered without considering the pendency of the instant original petition and hence, the judgment therein does not have any binding effect. 6. The learned counsel appearing for the Executive Officer submitted that the person arrayed as the Secretary of the Samithi is the plaintiff’s stooge and the impugned order having been passed after considering all aspects, warrants no interference. O.P(C). No.3358/2019 6 Learned Standing Counsel for the Devaswom Board also supported the impugned order. 7. I find merit in the submission that the dispute among the office bearers of the Samithi cannot be made the subject matter of the suit. Going by the averments in the plaint and the reliefs sought therein, the petitioner is not a necessary party or even a proper party to the suit. As has been often held, a necessary party is a person who ought to have been joined as a party and in whose absence, no effective decree could be passed by the court. A proper party is a party who, though not a necessary party, is a person, whose presence would enable the court to completely or effectively and adequately adjudicate upon all matters in dispute. In **Rajeevan P.C and another v. Deputy Commissioner and** **others [2020 (3) KLT 470],** this court has held that, what makes the person a necessary party, is not merely that he has relevant evidence to adduce on some of the issues in the list, as that would only make him a necessary witness, but it is that, without his presence, complete and final adjudication is not possible. In finding the first petitioner to be a necessary party, the trial court seems to have been carried away by the documents produced by the first respondent. The pertinent fact that the Samithi is already in the party array and no evidence was produced in support of the contention that the Secretary is not competent to represent the Samithi was omitted to be noted. Being so, the impugned order is liable to be interfered with. O.P(C). No.3358/2019 7 In the result, the original petition is allowed by setting aside Ext.P5 order. Sd/- **V.G.ARUN JUDGE** lgk O.P(C). No.3358/2019 8 ## **APPENDIX OF OP(C) 3358/2019** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO. 57/2018 ON THE COURT OF SUBORDINATE JUDGE, OTTAPALAM DATED 27-08-2018. EXHIBIT P2 TRUE COPY OF I.A.687/2019 FILED IN O.S. 57/2018 ON THE COURT OF SUBORDINATE JUDGE, OTTAPALAM DATED 06-08-2018. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY PETITIONER IN I.A. 687 OF 2019 IN O.S. NO. 57/2018 ON THE COURT OF SUBORDINATE JUDGE, OTTAPALAM DATED 19-08-2019. EXHIBIT P4 TRUE COPY OF A.A. 2/2017 FILED BY THE 1ST RESPONDENT AND PADMAKUMAR DATED 12-04-2017 BEFORE THE COMMISSIONER, MALABAR DEVASWAM BOARD, KOZHIKODE. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. 687 OF 2019 FILED IN O.S. NO. 57/2018 ON THE COURT OF SUBORDINATE JUDGE, OTTAPALAM DATED 10-102019.