Kunjuraman Pillai and Gopinathan Pillai v. Thalavoor Thrikkanamarkode Devaswom and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 F.A.O.NO. 16 OF 2011** **AGAINST THE ORDER DATED 30.10.2010 IN O.P.NO.245 OF 2010 ON THE FILE OF THE III ADDITIONAL DISTRICT COURT, KOLLAM APPELLANTS/PETITIONERS:** - **1 KUNJURAMAN PILLAI, AGED 72 YEARS, S/O KESAVA PILLAI, CHANDAVILA VEEDU,THALAVOOR,KURA MURI, KURA.P.O, PATHANAPURAM-691557.** - **2 GOPINATHAN PILLAI, S/O.KUNJAN PILLAI AGED 48 YEARS, SURESH BHAVAN, NJARAKKAD MURI, THALAVOOR.P.O, PATHANAPURAM-691514.** **BY ADVS. SRI.P.GOPAKUMARAN NAIR SRI.N.K.SUBRAMANIAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THALAVOOR THRIKKANNAMARKODE DEVASWOM THALAVOOR.P.O, THALAVOOR VILLAGE, PATHANAPURAM691514, REPRESENTED BY ITS PRESIDENT.** - **2 THALAVOOR DEVI VILASOM VOCATIONAL HIGHER SECONDARY SCHOOL EXECUTIVE COMMITTEE, CORPORATE MANAGEMENT,(THALAVOOR THRIKKANAMARKODE, DEVASWOM EXECUTIVE COMMITTEE),THALAVOOR, PATHANAPURAM-691514, REPRESENTED BY ITS MANAGER.** 2 F.A.O.No.16 of 2011 - **3 C.MANOJ KUMAR, S/O.CHANDRASEKHARA PILLAI AGED 35 YEARS, PUTHIYA VEEDU, VADAKKODE, KURA.P.O,, THALAVOOR VILLAGE, PATHANAPURAM691557.** - **4 T.RAJESH, S/O.THANKAPPAN PILLAI, AGED 40 YEARS, THAPASYA, KURA.P.O, THALAVOOR VILLAGE, PATHANAPURAM-691557.** - **5 B.SANTHOSH KUMAR, S/O.BALAKRISHNA PILLAI, AGED 40 YEARS,VILA VEEDU,PANDITHITTA,, AMBALANIRAPPU.P.O,PATHANAPURAM TALUK.** - **6 SAJI KUMAR, S/O.SUKUMARA PILLAI, AGED 40 YEARS, MURUKA SADANAM, KURA.P.O, THALAVOOR, VILLAGE, PATHANAPURAM-691557.** - **7 UNNIKRISHNAN PILLAI, S/O.RAMAN PILLAI AGED 72 YEARS, PARASSERIL VEEDU, NEDUTHERI MURI, THALAVOOR VILLAGE, PATHANAPURAM-691514.** - **8 SREERAMA VILASOM NSS KARAGOGAM NO.473, VADAKODE, KURA.P.O, THALAVOOR VILLAGE, PATHANAPURAM-691557, REPRESENTED BY ITS PRESIDENT.** - **9 VASUDEVA VILASOM NSS KARAYOGM NO.481 KURA.P.O,KURA-691557,REPRESENTED BY ITS PRESIDENT.** - **10 SREE NARAYANA VILASOM NSS KARAYOGAM NO.481,KURA.P.O,KURA-691557,REPRESENTED BY ITS, PRESIDENT.** - **11 DEVI VILASOM NAIR KARAYOGAM, NJARAKKAD NO.8/90,THALAVOOR,PATHANAPURAM691514,REPRESENTED, BY ITS PRESIDENT.** - **12 BHAGAVATHI VILASOM NSS KARAYOGAM NO.178 NJARAKKAD,THALAVOOR.P.O, PATHANAPURAM-691514, REP., BY ITS PRESIDENT.** 3 F.A.O.No.16 of 2011 - **13 SREE SANKARAVILASOM NSS KARAYOGAM PANDITHITTA NO.171,AMBALANIRAPPU.P.O,THALAVOOR,, PATHANAPURAM-691514,REPRESENTED BY ITS PRESIDENT.** - **14 MANNAM MEMORIAL KARAYOGAMPANDITHITTA AMBALANIRAPPU.P.O,THALAVOOR,PATHANAPURAM691514,, REPRESENTED BY ITS PRESIDENT.** - **15 SREEKRISHNA VILASOM NSS KARAYOGAM NADUTHERI NO.179,THALAVOOR.P.O,PATHANAPURAM-, 691514,REPRESENTELD BY ITS PRESIDENT.** - **16 BHASKARA VILASOM NSS KARAYOGAM MANJAKALA NO.172,MANJAKALA,PATHANAPURAM691514,, REPRESENTED BY ITS PRESIDENT.** - **BY ADVS.** - **SRI.G.S.REGHUNATH SRI.K.RAVI PARIYARATH SRI.G.SREEKUMAR CHELUR** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 F.A.O.No.16 of 2011 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioners in O.P.No.245 of 2010 on the files of the III Additional District Court, Kollam are the appellants. They challenge the order dated 30.10.2010 by which the III Additional District Court dismissed the said original petition. This appeal is filed under Section 104 read with Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. 2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondents. 3. O.P.No.245 of 2010 was filed under Section 92 of the Code seeking leave to institute a suit. The reliefs claimed in the proposed suit are,- (i) settling/modifying the scheme of the 1[st] respondent-Trust; (ii) remove respondent Nos.3 to 6 from the trusteeship; (iii) appoint new trustees; and (iv) enquiry into accounts of the trust from 01.01.1983. The appellants claimed that they are members of NSS Karayogams, representatives of which also are members of the Trust. They, thus, have claimed to be the beneficiaries of 5 F.A.O.No.16 of 2011 the Trust. Their contention is that there is no provision in the existing scheme, which was formulated by the District Court, Kollam in O.S.No.1 of 1976, for a beneficiary of a trust to redress his grievance. Therefore, they sought to file a fresh suit. 4. In O.P.No.245 of 2010, respondent Nos.1 to 5 and 7 jointly filed objection. Respondent Nos.8, 9, 11, 12, 14 and 15 jointly filed objection. Respondent Nos.6 and 10 also filed objection. Their common contention, apart from denying the allegations raised individually against them, is that the remedy of the appellants is to approach the District Court by filing appropriate interlocutory application in O.S.No.1 of 1976. They thus contended that no leave to institute a fresh suit for the reliefs they sought cannot be granted. 5. The III Additional District Court took the view that in the light of clauses 25 and 34 in the existing scheme, the appellants can work out their remedy in O.S.No.1 of 1976 by filing appropriate petitions and therefore leave to file a fresh suit is not liable to be granted. 6 F.A.O.No.16 of 2011 6. The learned counsel appearing for the appellants would submit that such a perpetual foreclosure of instituting a fresh suit is illegal, especially when there is no provision in the present scheme enabling beneficiaries of the trust to intervene in O.S.No.1 of 1976. 7. The learned counsel appearing for the 1[st] respondent supported the view taken by the court below in the impugned order. In their view, there are inbuilt provisions in the existing scheme and therefore a fresh suit will be an abuse of the process of the court. 8. In **Jamia Masjid v. Sri.K.V.Rudrappa (D) by LRs. and others [(2022) 9 SCC 225]** , a three-Judge Bench of the Apex Court held that a suit under Section 92 of the Code is of a representative character and all persons interested in the trust would be bound by the judgment in the suit, and persons interested would be barred by the principles of _res judicata_ from instituting a subsequent suit on the same or substantially the same issue. 7 F.A.O.No.16 of 2011 9. The District Court, Kollam as per the impugned order held that Ext.P1 scheme which was framed in O.S.No.1 of 1976 contained the provisions sufficient to redress the grievance of the appellants and therefore leave to institute a fresh suit is not liable to be granted. It was observed that instituting a new suit for the purpose mentioned by the appellants would result in multiplicity of proceedings and the same is not legally permissible. 10. Respondent Nos.3 to 6 were the office bearers of the trust. The appellants sought leave to institute a new suit on the ground that respondent Nos.3 to 6, misusing their powers, had been committing every sort of mismanagement and maladministration of the 1[st] respondent-Trust. The learned counsel appearing for the appellants would submit that Ext.A1 scheme does not contain a provision enabling beneficiaries of the Trust to approach the Court in O.S.No.1 of 1976. There is no provision also in Ext.A1 enabling persons, who were not _eo nominee_ parties to intervene in O.S.No.1 of 1976 for the purpose of amendment of Ext.A1 8 F.A.O.No.16 of 2011 scheme, removing any trustee or for taking action in regard to any mismanagement or maladministration by the trustees. Therefore, the findings of the District Court are said to be incorrect. 11. As pointed out above, the Apex Court in **Jamia Masjid** (supra) held that a suit under Section 92 of the Code is a suit in representative capacity. If so, any person interested in the Trust can approach the court for the protection of the interests of the Trust. The representative nature of a suit under Section 92 of the Court enables any beneficiary of the Trust to approach the court seeking reliefs allowed under various provisions of the said Section. 12. The appellants claimed to be the members of Karayogams, representatives of which among other Karayogams constitute the Board of Trustees. Therefore, the appellants are persons interested in the Trust. Clause 25 in Ext.A1 scheme confers power upon the Trustees, to amend the bye laws or sub rules. Even if any amendment is brought about by the Board of Trustees the same has to be placed 9 F.A.O.No.16 of 2011 before the District court in O.S.No.1 of 1976 and get approved. The said provision implies that Ext.A1 scheme is subject to amendment and, therefore, any person interested in the Trust has a right to approach the District Court for the purpose of bringing about amendment in the bye law. 13. Clause 34 in Ext.A1 scheme describes the procedure for approaching the court in case of any maladministration of the Trust. Although the said clause restricts the right to approach the court to the member organisations alone, the representative nature of O.S.No.1 of 1976 enables all beneficiaries to exercise the said right. Therefore, the contention about inhibition against the appellants approaching the District Court, Kollam for filing interlocutory applications in O.S.No.1 of 1976 in fact does not exist. The appellants have every right to approach the court if there is any misappropriation of Trust fund or there is requirement of removal of trustees. 14. We are of the view that The District Court considered the matter in its proper perspective and took the 10 F.A.O.No.16 of 2011 correct view that no leave under Section 92 of the Code is liable to be granted to the appellants for the purposes mentioned in the original petition. Therefore the appeal fails and it is accordingly dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr