NARAYANASWAMY S/O VELAYUDHAN CHETTIAR, SECRETARY OF 24 MANAI THELUGU CHETTIYAR MARIYAMMAN KOVIL, VANIYAMKULAM, THERUVU IN OTTAPPALAM TALUK v. P. BALASUBRAMANIAN, D. VENKITACHALAM, P. VASU, V. RADHAKRISHNAN, P. SUNDARAN (DECEASED)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 SA.No. 712 of 1998(B) --------------------AS.51/1997 of SUB COURT, OTTAPPALAM OS.200/1995 of MUNSIFF COURT, OTTAPPALAM .................... ## APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------ NARAYANASWAMY, S/O.VELAYUDHAN CHETTIAR SECRETARY OF 24 MANAI THELUGU CHETTIYAR MARIAMMANKOVIL VAIAMKULAM, THERUVU IN VANIAMKULAM AMSOM OTTAPPALAM TALUK BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN ## RESPONDENTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------------------- 1. P.BALASUBRAMANIAN, S/O.PALANISWAMY CHETTIAR 2. D.VENKITACHALAM, S/O.DANDAPANI 3. P.VASU, S/O.PALANISWAMY CHETTIAR 4. V.RADHAKRISHNAN, S/O. VISWANATHA IYER 5. P SUNDARAN, S/O.PALANISWAMY CHETTIAR )( DIED (ALL THE RESPONDENTS ARE RESIDING AT VANIYAMKULAM AMSOM VANIYAMKULAM THERUVU IN OTTAPALAM TALUK) (IT IS RECORDED THAT R5 DIED AND THAT NONE OF HIS LEGAL HEIRS ARE TO BE IMPLEADED AS HIS LEGAL HEIRS ARE ALREADY IN THE PARTY ARAY, AS PER ORDER DT.16.8.2011 IN MEMO DT.29.7.2011 BEARING CF 4764/11 ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR MOHANKUMAR ASSOCIATES THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2011, THE COURT ON 25/10/2011 DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------SA No.712 of 1998-B ------------------------------------Dated this the 25[th] day of October 2011 ## Judgment The plaintiff in OS No.200/95, who was nonsuited by the lower appellate court, is the appellant. 2. The plaintiff claimed to be the Secretary of 24 Manai Thelugu Chettiar Mariyamman Kovil, Vaniyamkulam. According to him, in order to defeat the rights and interests of the plaintiff's association, the defendants have formed an association and they are acting against the interests of the plaintiff's association. Recently, the plaintiff put up a board in that temple. The very same act was done by the defendants in their temple. On the previous day of the filing of the suit, it is alleged, the defendants trespassed into the plaint schedule property and removed the board and flag hoisted by the plaintiff, for which the defendants have SA 712/98 2 no right. Apprehending more of such trespass, the suit was laid. 3. The suit was resisted by the defendants. They challenged the competency of the plaintiff to institute the suit. They disputed the status of the plaintiff as a member of the 24 Manai Thelugu Chettiar community. It was also pointed out that the allegation in the plaint that the defendants' association was formed later, is false and untrue and that the defendants' association has been in existence for a long time. It is pointed out that there was some rift between the two factions and the matter was taken to the police. There are several others contentions in the written statement, which are not very relevant for the present purpose. Suffice is to say that the contention was that the plaintiff is not entitled to any reliefs. SA 712/98 3 4. On the basis of the above pleadings, necessary issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B25 marked. Ext.C1 is the commissioner's report. 5. The trial court felt it unnecessary to go into the status of the plaintiff. Since it was admitted that the two factions had different properties, the trial court concluded that the defendants had no right to trespass into the plaint schedule property and accordingly, a decree was granted. 6. The disappointed defendants carried the matter in appeal as AS No.51/97 before the Sub Court, Ottappalam. The lower appellate court too concurred with the view of the trial court that the defendants had no right to trespass into the property, but found that the SA 712/98 4 plaintiff has not come with clean hands and he is not entitled to any discretionary remedy. Accordingly, the judgment of the trial court was reversed and the suit was dismissed. It is against the said judgment and decree that this second appeal is filed. 7. Notice is seen issued on the following questions of law raised in the second appeal : “ii. whether the court below erred in omitting to notice that existence of two groups of 24 Manai Thelugu Chettiar community spoken to by PW1 the plaintiff and DW1, the 3[rd] defendant ? iii. Whether the two different groups are not entitled to administer and manage the different temples ? 8. The learned counsel for the appellant pointed out that the lower appellate court was not justified in going into the question regarding the status of the plaintiff. That, according to the learned counsel, SA 712/98 5 was irrelevant. Attention was drawn to the fact that the defendants had admitted that they had no intention to trespass into the property owned and possessed by the plaintiff. It is not necessary that in such cases, there should be a declaratory prayer for the status of the person concerned. It is pointed out that there was no issue regarding the status of the plaintiff and therefore, there was no occasion to adduce evidence in that regard. Apart from the fact that it is totally irrelevant, the commissioner's report clearly shows that at the time of his first visit, the board and flag were in place, but during his second visit, they were seen removed. This was due to the highhanded action of the defendants and they had no right to do so. The learned counsel would also say that the lower appellate court has taken note of irrelevant circumstances and omitted significant aspects which have a bearing on the issues involved in SA 712/98 6 the case. Accordingly, it is pointed out that the judgment and decree of the lower appellate court are unsustainable in law. 9. Per contra, the learned counsel for the respondents pointed out that the status of the plaintiff was put in dispute and admittedly, there are two factions in the locality. It was pointed out that initially, the plaint showed a particular property which was later amended without any foundation or basis. The commissioner had visited the property earlier and it was after his visit that the plaint was amended by altering the boundaries and incorporating the survey number. The learned counsel drew attention of this court to the evidence of PW1 and pointed out that he has absolutely no idea about the parent association and that would make it clear that he had nothing to do with the 24 Manai Thelugu Chettiar community. The learned SA 712/98 7 counsel also pointed out that the trial court was not justified in placing reliance on Exts.A1 to A3 as they were only photo copies. According to the learned counsel, injunction being a discretionary remedy, it was essential for the plaintiff to have come to the court with clean hands. The lower appellate court has pointed out the infirmities in the case of the plaintiff which disentitles him from getting the reliefs sought for in the plaint. Therefore, no grounds are made out warranting interference with the judgment and decree of the lower appellate court and no substantial questions of law arise for consideration in the second appeal. 10. Admittedly, there are two factions in the locality where the plaintiff and defendants reside. The complaint of the plaintiff is that they have a temple of their own and the defendants have no right to come to that temple. Of course, the defendants also concede SA 712/98 8 that they do not intend to go to that place at all. It is therefore, contended that once it is shown that the plaintiff is in possession of the property over which the defendants have no manner of right, reliefs ought to have been granted to the plaintiff. 11. It is extremely doubtful whether the suit as laid is maintainable at all. The plaintiff has styled himself as the Secretary of the 24 Manai Thelugu Chettiar Mariyamman Kovil without any supporting authority to show his competency to do so. Of course, there were no such issue before the trial court nor was there any discussion about this aspect before the lower appellate court. But, when this court perused the plaint, it was found that he was not representing any society or organisation or body, but he was representing a kovil. His competency to do so has not been averred in the plaint at all. As rightly noticed by the lower appellate 9 SA 712/98 court, the pleadings and evidence cannot be treated lightly. It is here that one aspect looms large. A commission was taken out on the date of institution of the suit itself. The commissioner has described the property which he visited and has given a report of what he had seen in the property. It is significant to notice that it is long after his visit that the plaint has been amended, changing the entire complexion of the property, i.e., the boundaries are changed and survey number is incorporated. This shows that the plaintiff had no idea about the property at all and there were no justifiable reasons for seeking amendment of the plaint. Interestingly enough, it is not seen in conformity with the commissioner's report. As things now stand, from the plaint description, the plaint schedule property is different from the one shown in the commissioner's report. Therefore, not much reliance can be placed on SA 712/98 10 the commissioner's report. 12. The lower appellate court was right in refusing to accept Exts.A1 to A3 being photocopies of the documents. The reasons given by the lower appellate court seem to be well founded in law and does not call for interference by this court, even though the originals of those documents have been produced before this court. No justifiable reasons are also stated before this court as to why the originals of the documents were not produced before the courts below. Therefore, they were rightly discarded by the lower appellate court. 13. It is true that in the decision in **Nandakumar v. Federal Bank Ltd** (2009(4) KLT SN 96 Case No.91), it is observed as follows : “The Act widened the sphere of the civil courts but the Preamble shows that it is not SA 712/98 11 exhaustive of all kinds of specific reliefs. Courts in India are to administer common law and equity jurisdiction. Hence S.38 of the Act cannot be said to be exhaustive as to the power of the courts to grant injunction. Even in cases where S.38 of the Act does not as such apply, if a person has suffered a legal wrong due to the act of the defendant or there is a violation of an equitable right, he can ask for the relief of injunction.” 14. There can be no doubt regarding the principle laid down in the above quoted decision, but it cannot be said that in a suit for injunction, the conduct of the plaintiff and the pleadings are totally irrelevant. It is here that the lower appellate court has noticed that the plaintiff projected the defendants' association as if it was formed long after the formation of the plaintiff's SA 712/98 12 association. The lower appellate court, on a consideration of the evidence, found it otherwise. The lower appellate court has adverted in detail to the evidence of PW1 and found that he has no idea about the association at all. It was these facts which prompted the lower appellate court to hold that there was no justification in the complaint filed by the plaintiff and that it has not been proved that he belongs to the community which he professes. These facts were taken note of by the lower appellate court to come to the conclusion that the allegation in the plaint cannot be taken to be true and the claim of the plaintiff cannot be accepted as such. Or in other words, it was found that he has not come to the court with true facts. That being the position, the prayer for injunction being discretionary, was rightly declined by the lower appellate court. It could not be said that the lower SA 712/98 13 appellate court has erred in law in any manner in doing so. Further, the findings entered into by the lower appellate court are based on evidence on record. It is not shown that the findings are either perverse or unwarranted by the evidence on record. No substantial questions of law arise for consideration in the second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. **P.Bhavadasan, Judge** sta SA 712/98 14