## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937**
## **FAO.No. 1 of 2016**
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**IA.NO.2620/2016 IN OS.30/2015 OF DISTRICT COURT, THRISSUR**
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## **APPELLANT(S)/PETITIONER/PLAINTIFF:**
**--------------------------------------------------------**
**K.T.MURALEEDHARAN, AGED 55 YEARS, S/O.P.KESAVAN NAMBEESAN, AMBADI VEETTIL, GURUVAYUR VILLAGE, CHAVAKKAD TALUK, GURUVAYUR 680101.**
**BY ADVS.SRI.SAJI VARGHESE KAKKATTUMATTATHIL SRI.ANTONY AUSHAN HIJU**
**SMT.M.R.ELSIE SRI.B.SATHEEZ CHANDRAN SMT.M.G.SUSSILA**
## **RESPONDENT(S)/RESPONDENT/DEFENDANTS:**
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**1. GURUVAYUR DEVASWOM, REPRESENTED BY ADMINISTRATOR, GURUVAYOOR DEVASWOM OFFICE, GURUVAYOOR PO, GURUVAYUR VILLAGE, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680101.**
**2. GURUVAYUR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, GURUVAYOOR DEVASWOM OFFICE, GURUVAYOOR PO, GURUVAYUR VILLAGE, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680101.**
## **BY ADV. SRI. P.GOPAL**
**THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09-02-2016 ALONG WITH FAO. 4/2016 AND CONNECTED CASES, THE COURT ON 26-02-2016, DELIVERED THE FOLLOWING:**
**PJ**
## **P.B.SURESH KUMAR, J.**
## **-----------------------------------------------**
## **F.A.O. Nos.1, 4, 8, 9, 10, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47 of 2016**
## **-----------------------------------------------**
## **Dated 26[th] February, 2016.**
## **J U D G M E N T**
These appeals are preferred challenging the common order passed in a batch of applications for temporary injunction filed invoking order XXXIX Rule 1 of the Code of Civil Procedure.
2. The facts relevant for decision of these appeals are the following:
The interlocutory applications for temporary injunction referred to above were filed by the plaintiffs in a batch of suits instituted against Guruvayoor Devaswom (hereinafter referred to as 'the Devaswom' for short). The plaintiffs are occupying the shop rooms in a building owned by the Devaswom. According to them, they are occupying the shop rooms of the Devaswom as tenants and that the Devaswom has served on them notices stating that they are
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licencees and that the licences granted to them have been terminated for the purpose of reconstructing the building under their occupation. It is also the case of the plaintiffs that in so far as they are tenants under the Devaswom, they are entitled to continue the occupation of the building until the tenancy arrangements in their favour are terminated. It is the further case of the plaintiffs that the Devaswom is attempting to evict them from the shop rooms concerned. The relief sought by the plaintiffs in all the suits, in the circumstances, was a decree of prohibitory injunction restraining the Devaswom from evicting the plaintiffs from the shop rooms concerned by force. The suits have been instituted before the District Court on the ground that the suits of this nature against the Devaswom would lie only before the District Court, in the light of the provision contained in Section 28(5) of the Guruvayoor Devaswom Act ('the Act' for short). Along with the suits, applications seeking orders of temporary injunction in tune with the relief claimed in the suit were also filed.
3. The Devaswom filed objections to the
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applications for temporary injunction contending mainly that the suits are premature. According to the Devaswom, under Section 28 of the Act, the Devaswom is entitled to take and be in possession of its immovable properties and for the said purpose, it is entitled to move the District Collector for assistance. It was their case that the Devaswom had already moved the District Collector for assistance, as provided for under Section 28(2) of the Act and that the plaintiffs will be evicted only after obtaining orders from the District Collector. According to the Devaswom, in the matter of rendering assistance to the Devaswom, the District Collector will hold a summary enquiry and in that event, the plaintiffs will also be heard by the District Collector. It was their contention that in the circumstances, the plaintiffs have no cause of action to institute suits against the Devaswom seeking the aforesaid relief.
4. The trial court considered the contentions raised by the parties concerned and held that the suits are premature and hence not maintainable. Consequently, the interlocutory
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applications for temporary injunction preferred by the plaintiffs were dismissed. The plaintiffs are aggrieved by the said decision of the trial court and hence these appeals.
5. Heard the learned counsel for the plaintiffs as also the learned Standing Counsel for the Devaswom.
6. The main contention advanced by the learned counsel for the plaintiffs was that the finding of the trial court that the suits were premature and liable to be dismissed on that ground is unsustainable.
7. It is beyond dispute that in the light of the provision contained in Section 15 of the Code of Civil Procedure, every suit shall be instituted in the court of the lower grade competent to try it. The fact that the present suits are suits which could be tried by the Munsiff Court exercising jurisdiction over the area in which the building under the occupation of the plaintiffs is situated is not in dispute. But, according to the plaintiffs, the suits were instituted before the District Court, in the light of the provisions contained in Section 28 of the Act. Section 28 of the Act reads thus:
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“28. Committee to be in possession of Devaswom properties--
(1) The Committee shall be entitled to take and be in possession of all movable and immovable properties including jewelleries, records, documents and other assets belonging to the Devaswom.
(2) If in obtaining such possession, the Committee or any person authorised in this behalf by the Committee, or the Administrator is resisted or obstructed by anyone, the Committee or the Administrator, as the case may be, may make a requisition in the prescribed form to the Collector of the district in which any such property is situate to deliver possession thereof to the Committee or the Administrator, as the case may be.
(3) Where a requisition is made to the Collector under subsection (2), the Collector shall hold a summary inquiry into the facts of the case and, if satisfied that the resistance or obstruction was without any just cause, shall comply with the said requisition; and in exercising the powers under this section, the Collector may use such force as may be necessary.
(4) Every person authorised by the Committee or acting under its instructions in pursuance of this section or the Administrator shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (Central Act 45 of 1860).
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(5) Nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order made thereunder for establishing his title to the property.”
Sub-section (1) of Section 28 provides that the Committee of the Devaswom shall be entitled to take and be in possession of all movable and immovable properties of the Devaswom. Subsection (2) of Section 28 provides that if in obtaining such possession, the Committee is resisted or obstructed by any person, the Committee may make a requisition in the prescribed form to the District Collector to deliver possession thereof to the Committee. Sub-section (3) of Section 28 provides that where a requisition is made to the District Collector under sub-section (2) of Section 28, the Collector shall hold a summary enquiry into the facts and if satisfied, that the resistance or obstruction was without any just cause, shall comply with the requisition made by the Committee. Subsection (5) of Section 28 clarifies that nothing in Section 28 shall bar the institution of a suit by any person aggrieved by an
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order made thereunder for establishing his title to the property. A combined reading of the provisions contained in Section 28 of the Act would indicate beyond doubt that what the legislature intended by incorporating a provision as sub-section (5) is only to clarify that the order if any, passed by the District Collector invoking his power under sub-section (3) of Section 28 will not preclude the person aggrieved by that order from challenging the same in a suit.
8. Coming to the facts of the present case, it is categorically pleaded by the Devaswom in the objections filed to the applications for temporary injunction filed by the plaintiffs that it had invoked the power of the District Collector under Section 28(2) of the Act for taking possession of the premises held by the plaintiffs and the requisition made by the Devaswom in that connection is pending consideration before the District Collector. In other words, neither the plaintiffs nor the Devaswom have a case that any order under Section 28 of the Act has been obtained by the Devaswom. A suit contemplated under sub-section (5) of Section 28 is a suit by a
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person aggrieved by an order passed under Section 28 of the Act. In so far as no order has been passed under Section 28 of the Act in respect of the premises held by the plaintiffs, I have no doubt in my mind that the suits instituted invoking Section 28(5) of the Act are premature. Further, in **Padmini v. Guruvayoor Devaswom and another** (2016(1) KHC 29), it was clarified by this Court that even a suit contemplated under sub-section (5) of Section 28 shall lie only before the regular court, viz., the Munsiff Court. As such, even if the suits are not premature, the same are not maintainable before the District Court. In so far as the suits in which the applications for temporary injunction are filed are found to be not maintainable, the impugned decision is in order.
In the above circumstances, the appeals are devoid of merits and the same are accordingly, dismissed. However, it is made clear that this judgment will not preclude the plaintiffs from instituting suits before appropriate forum for appropriate relief, if they apprehend that the Devaswom would attempt to evict them from the premises by force without invoking the
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provisions contained in Section 28 of the Act. All the interlocutory applications in these appeals are closed.
Sd/-
**P.B.SURESH KUMAR, JUDGE.**
tgs
(true copy)
