Shaju J. v. Official Receiver, Vanchiyil Sree Saravana Temple, Eravipuram, Kollam and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940** **OP(C).No. 843 of 2018** **O.S.NO. 7/2002 OF 1ST ADDITIONAL DISTRICT COURT, KOLLAM ----------** ## **PETITIONER(S)** **SHAIJU J., VANCHIYIL VEEDU, ERAVIPURAM.P.O., KOLLAM - 691 011.** **BY ADVS.SRI.B.SURESH KUMAR SMT.ANUROOPA JAYADEVAN** ## **RESPONDENT(S):** *** 1. THE OFFICIAL RECEIVER, VANCHIYIL SREE SARAVANA TEMPLE, ERAVIPURAM.P.O., KOLLAM - 691 011. (DELETED)** - **R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 31.05.2018.** **2. L.SAIJU @ MURARI,** **S/O.LEKSHMANAN, AAKKAVILA, ERAVIPURAM.P.O., KOLLAM - 691 011.** **3. K.PUSHPARAJAN,** **S/O.KESAVAN, MANKUZHIYIL VEEDU, ERAVIPURAM.P.O., KOLLAM - 691 011.** **4. VANCHIYIL SREE SARAVANA TEMPLE,** **REPRESENTED BY ITS SECRETARY, ERAVIPURAM.P.O., KOLLAM - 691 011.** **5. L.SAIJU @ MURARI,** **S/O.LEKSHMANAN, PRESIDENT, VANCHIYIL SREE SARAVANA TEMPLE, ERAVIPURAM.P.O., KOLLAM, RESIDING AT AAKKAVILA, ERAVIPURAM, KOLLAM-691 011.** **6. K.PUSHPARAJAN,** **S/O.KESAVAN, FORMER SECRETARY, VANCHIYIL SREE SARAVANA TEMPLE, ERAVIPURAM.P.O., KOLLAM - 691 011, RESIDING AT MANKUZHIYIL VEEDU, ERAVIPURAM.P.O., KOLLAM - 691 011.** **..2/-** **..2..** **OP(C).No. 843 of 2018** **7. SANTHOSH KUMAR.V.G., SECRETARY, VANCHIYIL SREE SARAVANA TEMPLE, ERAVIPURAM.P.O., KOLLAM - 691 011.** **R2,R4 & R5 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE BY ADV. SRI.MILLU DANDAPANI** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON 22-06-2018 DELIVERED THE FOLLOWING:** **Msd.** **23.06.2018** **OP(C).No. 843 of 2018 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: A TRUE COPY OF THE JUDGMENT IN RFA.NO.6/2008 DATED 18/07/2011 PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXT.P2: A TRUE COPY OF THE JUDGMENT DATED 13/01/2012 IN CC.NO.22310/2011 PASSED BY THE HON'BLE SUPREME COURT OF INDIA. EXT.P3: A TRUE COPY OF THE ORDER DATED 02/12/2014 IN FAO.NO.158/2014 PASSED BY THIS HON'BLE COURT. EXT.P4: A TRUE COPY OF THE ORDER DATED 17/12/2014 IN I.A.NO.1835/2014 FAO.NO.158/2014 PASSED BY THIS HON'BLE COURT. EXT.P5: A TRUE COPY OF THE I.A.NO.1353/2015 IN O.S.NO.7/2002 DATED 25/06/2015 FILED BY THE PETITIONER. EXT.P6: A TRUE COPY OF THE I.A.NO.1581/2015 IN I.A.NO.1353/2015 IN O.S.NO.7/2002 DATED 07/08/2015 FILED BY THE PETITIONER. EXT.P7: A TRUE COPY OF THE I.A.NO.12/2017 IN O.S.NO.7/2002 DATED 03/01/2017 FILED BY VANCHIYIL SREE SARAVANA TEMPLE REPRESENTED BY ITS PRESIDENT AND ITS SECRETARY. EXT.P8: A TRUE COPY OF THE ORDERS IN I.A.NO.1353/2015, I.A.NO.1581/2015 AND I.A.NO.12/2017 IN O.S.NO.7/2002 DATED 06/03/2018 PASSED BY THE 1ST ADDITIONAL DISTRICT COURT, KOLLAM.** ## **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** **23.06.2018** **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = O. P. (C) No.843 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of June, 2018** ## **J U D G M E N T** Interlocutory applications filed in a suit under Section 92 of the Code of Civil Procedure, after the settling of scheme, were returned by the court, as 'lacking jurisdiction'. The said order is under challenge in this Original Petition. 2. Heard Sri.B.Suresh Kumar, learned counsel appearing for the petitioner and Sri.K.P.Dandapani, learned Senior Counsel appearing for the respondents. 3. O.S. No.7/2002 was a suit under Section 92 of the Code of Civil Procedure. On 29.09.2007, decree was passed settling the scheme. Challenging the said decree, there was an appeal before this Court as R.F.A. No.6/2008. This Court confirmed the decree passed by the trial court. The SLP filed against the judgment was dismissed by the Apex Court. O. P. (C) No.843 of 2018 :- 2 :- 4. Thereafter, alleging that out of the three temples situated in the temple compound, one of the temples namely, Yogeeswara Temple, was demolished, the petitioner along with another filed I.A. No.124/14 with the following prayers: (1) To prohibit further demolishing of structures in the temple compound. (2) To restore Yogeeswara Temple at the same place under court supervision. (3) For removal of the then members of the Administrative Committee. The application was allowed by the District Court and Official Receiver was appointed for management and administration of the temple. The order on I.A. No.124/14 was challenged before this Court in FAO 158/14. On 02.12.2014, a judgment was delivered in the appeal, on consent between the parties. The directions therein related to conduct of election, for the construction of the “Yogeeswara Temple” after conducting “Ashtamangalya Prasnam” and also regarding accounting of money. “Ashtamangalya O. P. (C) No.843 of 2018 :- 3 :- Prasnam” was to be conducted within a period of one month from the date of judgment. As per order dated 17.12.2014, the period was extended by one month from 02.01.2015. 5. It appears that, “Ashtamangalya Deva Prasnam” suggested the name of the temple be changed to “Sree Saravana Bhava Temple, Eravipuram”. Thereafter, notification for conduct of election was published. The petitioner filed I.A. No.1353/2015 seeking the following reliefs: (1) To declare the result of “Ashtamangalya Deva Prasnam” as null and void. (2) To declare that the members of the earlier Administrative Committee who were removed as per the order on I.A. No.124/14 are incompetent to submit the nominations for a reasonable period. (3) To remove the Official Receiver from the post of Receiver of the Temple and to appoint a Senior O. P. (C) No.843 of 2018 :- 4 :- Advocate as the Receiver. 6. In the meanwhile, in terms of the judgment in FAO 158/14, elections were conducted to the Managing Committee. The Official Receiver gave charge to the new committee. The petitioner filed I.A. No.1581/15 seeking the following reliefs: - (1) Injunction from demolishing any structures in the temple compound. - (2) Injunction from shifting the site of the temple. - (3) Injunction from changing the name of the temple from “Vanchiyil Sree Saravana Kshetram, Eravipuram”, to “Sree Saravana Bhava Kshethram” on the strength of Ashtamangala Deva Prasnam. 7. Pending the same, the elected President and Secretary filed I.A. No.12/17 seeking permission to change the name of the temple to “Eravipuram Sree Saravana Bhava Temple” based on the General Body decision and also seeking permission to construct temple in accordance with the plan and estimate approved by the General Body. As per the impugned O. P. (C) No.843 of 2018 :- 5 :- order, the court below held the interlocutory applications to be not maintainable. 8. The question that arises for determination is whether applications are maintainable in a suit under Section 92 of the Code of Civil Procedure after a scheme is settled. 9. A suit under Section 92 is considered analogous to an Administration Suit. The scheme that is formulated may itself provide that directions could be sought for from the court for the purpose of effectively carrying out the scheme. In Raje Anandrao v. Shamrao and Others [AIR 1961 SC 1206] , the Apex Court upheld the provision in a scheme enabling modification of the scheme by an application in the same proceeding without having to resort to a separate suit. In Radhakrishna Pillai v. Bhargavi Amma [2012 (2) KLT 842] , question arose as to whether a fresh suit is necessary for modification of the scheme. It was held that a fresh suit is necessary only if substantial alterations in the scheme are proposed. The said judgment was affirmed by the Apex Court in O. P. (C) No.843 of 2018 :- 6 :- S.L.P.(Civil) No.24355/2012. The Calcutta High Court in Abdul Khair and anr. v. Nazir Hossain and Ors. [AIR 1960 Cal. 631] held that by way of an application, a settled scheme cannot be scrapped in its entirety by substituting a new one. This Court in Elias v. Elias (1986 KLT 72) held that a scheme could be modified under Section 151 of CPC to prevent abuse of process of court or for the ends of justice, even in the absence of an enabling provision in the scheme. In Gangaram Govind v. K.R.Vinchurkar [AIR 1948 Bom. 146], it was held that the court has inherent power under Section 151 CPC to alter a scheme even in the absence of a clause giving “liberty to apply”, to meet the ends of justice. In Ray Sudhan v. Sajeendran [2017 (1) KLT 371] , a Division Bench of this Court held that modification of the scheme for the purpose of administration could be made on an application made in terms of the relevant clause of the scheme. Therefore, a scheme could be amended or modified for the purpose of administration on an application in terms of the relevant clause under the scheme, O. P. (C) No.843 of 2018 :- 7 :- or even under the inherent powers of the court in the absence of an express enabling provision, unless a substantial alteration or effacing of the basic structure of the scheme is sought for. 10. In the case at hand, admittedly there is no provision in the scheme enabling to move an application seeking modification of the scheme. Noticeably, there is no prayer for amendment or modification of the scheme as such. All that has been sought for are orders in relation to the administration of the temple in terms of the scheme. The court below relying on the decision of the Apex Court in Raje Anandrao v. Shamrao and Ors. [supra] and Ray Sudhan v. Sajeendran [supra] held that in the absence of a specific provision in the scheme permitting amendment or alteration, the applications are not maintainable. In Raje Anandrao v. Shamrao and Ors. [supra] the question considered was, when there is a provision in the scheme enabling to apply to the Court for modification, is a fresh suit necessary. Certain observations made by the Apex Court are of O. P. (C) No.843 of 2018 :- 8 :- relevance: “ We shall confine ourselves only to the question whether in a case where there is provision in the scheme for its modification by an application to the court, it is open to the Court to make modifications therein without the necessity of a suit under Section 92 ”. Ray Sudhan v. Sajeendran [supra] was a case where a modification of the scheme was sought for under the powers conferred on a clause provided under the scheme to the said effect. As noticed supra, the present case does not involve any modification or alteration of the scheme. 11. As is revealed from the facts stated above, subsequent to the settling of the scheme, I.A. No.124/14 was filed, based on which the administrative committee was removed and the Official Receiver took charge. In FAO 158/14 which arose from I.A. 124/14, a consent order was passed regarding the construction of Yogeeswara Temple which was demolished by the then administrative committee subsequent to the settling of the scheme. Evidently there has been an attempt to change the O. P. (C) No.843 of 2018 :- 9 :- name of the temple which has been settled by the scheme. It is noticeable that in RFA 6/2008, the dispute was centered around the name of the temple and this Court affirmed the finding of the District Court that the name of the temple shall be “Vanchiyil Sree Saravana Temple” . The SLP filed against the said judgment was dismissed by the Apex Court. The prayers in the present applications cannot be said to be seeking to modify or alter the scheme, but are only for directions for administration in terms of the scheme. I am of the opinion that the court below was not right in dismissing the applications. The court below ought to have taken note of the fact that it is pursuant to the settling of the scheme that orders were passed on I.A. 124/14 by the District Court and a consent judgment by this Court in FAO 158/14. The provisions therein relate to the administration of the temple including election and construction of the temple. I hold that the applications are maintainable. Though the petitioners in I.A. No.12/17 have not challenged the order of O. P. (C) No.843 of 2018 **==> picture [40 x 10] intentionally omitted <==** dismissal, since the applications were dismissed by a common order on the ground of lack of jurisdiction to entertain them, I set aside the order and direct the court below to consider the applications afresh on its merits, if pursued by the respective parties. Considering the nature of reliefs sought for in the applications, I direct the court below to hear and pass orders on the applications as expeditiously as possible. The original petition is allowed as above. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge