Sree Kalleli Oorali Appopankavu Seva Samithy v. V.S. Vasu and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 OP(C).No. 187 of 2011(O) -----------------------CMA.32/2010 of DISTRICT COURT, PATHANAMTHITTA OS.551/2008 of M.C.,PATHANAMTHITTA (IA 2758/2008) .................... PETITIONER ------------------SREE KALLELI OORALI APPOOPPAN KAVU SEVA SAMITHY, A SOCIETY REG.UNDER THE TRAVANCORE LITERARY, CHARITABLE & SCIENTIFIC SOCIETIES ACT, 1955 HAVING ITS REG.CERTIFICATE NO.P-159/03 AT ARUVAPPULAM GRAMA PANCHAYATH, DOOR NO.6/610 IN KALLELI, KONNI, REP. BY ITS SECRETARY BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT(S): - --------------- 1. V.S.VASU, CHARUVILAYIL HOUSE, ARUVAPPULAM MURI & VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. 2. SANTHAKUMAR, S/O.V.S.VASU, CHARUVILAYIL HOUSE, ARUVAPPULAM MURI & VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. 3. SALIM KUMAR, S/O.V.S.VASU, CHARUVILAYIL HOUSE, ARUVAPPULAM MURI & VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. 4. SANTHOSH, S/O.SANTHAN, PARACHARUVIL HOUSE, ARUVAPPULAM MURI & VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. 5. RAJANKUTTY, S/O.CHANDRAN, MULLASSERIL HOUSE, MANGARAM MURI, KONNI VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. 6. NANU, S/O.CHANDRAN, MUTHUPEZHUMKAL HOUSE, ARUVAPPULAM MURI & VILLAGE, KOZHENCHERRI TALUK. PIN - 689 641. ADV. SRI.G.UNNIKRISHNAN FOR R1-5 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **`K.T.SANKARAN, J`** `.` ``` ------------------------------ O.P(C).No.187 OF 2011 ------------------------------ Dated this the 25[th] day of January, 2011 ``` ## **`JUDGMENT`** ``` The plaintiff in O.S.No.551 of 2008 on the file of the Court of the Munsiff of Pathanamthitta challenges the judgment in CMA No.32 of 2010 on the file of the Court of the District Judge, Pathanamthitta, by which the temporary injunction granted by the trial court was vacated. ``` ``` 2. The plaintiff is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It is stated that the plaintiff Society consists of the members belonging to Akhila Kerala Kuravar Mahasabha (herein after referred to as KMS). The disputes relate to Kalleli ``` ``` O.P(C).No.187 OF 2011 2 ``` ``` Oorali Appopankavu (herein after referred to as the Kavu). According to the plaintiff, the administration and management of the Kavu vests in the plaintiff. The plaintiff also contended that the defendants are strangers in so far as the administration of the Kavu is concerned. The plaintiff also contended that the defendants are not members of KMS. ``` ``` 3. It is not in dispute that the Kavu is in existence since time immemorial. It is stated that erstwhile Maharaja of Pandalam allowed the Kuravar community to construct a temple, in recognition of the services rendered by them for the construction of Achankovil temple. According to the plaintiff, KMS has several Karayogams and the Kavu is being administered by the local Karayogam. The plaintiff Society was registered in 2003. It was contended by the plaintiff that the poojari of the Kavu was appointed by the plaintiff. The defendants made ``` ``` O.P(C).No.187 OF 2011 3 ``` ``` continuous attempt to grab the administration of the Kavu and they made attempts to disrupt the administration and management of the Kavu. In these circumstances, the suit was filed for permanent prohibitory injunction restraining the defendants and their henchmen from trespassing upon the plaint schedule Kavu, from committing any acts of waste in the Kavu, from desecrating or defiling the Kavu, from interfering with the affairs of the Kavu and its administration by the plaintiff or from causing any obstruction to the devotees and worshipers who attend the temple. ``` ``` 4. The defendants contended that the ``` ``` administration of the Kavu was being made by several committees and many of them could not live upto the expectation of the worshipping public. The plaintiff committee also could not properly administer and manage the affairs of the Kavu. The Worshippers raised their protest. ``` ``` O.P(C).No.187 OF 2011 4 ``` ``` A meeting of the general body consisting of the local worshipping public was convened. It was decided to allow the worshipping public to administer and manage the affairs of the temple. Accordingly, the Kalleli Oorali Appopankavu Samrakshna Samithi (herein after referred to as the Samithi) took over the management of the temple. The Samithi was formed in 2007. But it was registered only in 2009. The defendants contended in 1998, 2003 and 2005 other committees were in administration and management of the affairs of the Kavu. According to the defendants, the Poojari was appointed by the defendants. ``` ``` 5. The trial court granted an ad interim order of injunction. After the appearance of the defendants, the trial court heard the parties and passed final order dated 8[th] April, 2010 granting temporary injunction. Before the trial court, Exts.A1 to A30 and B1 to B32 were marked. ``` ``` O.P(C).No.187 OF 2011 5 ``` ``` Genuineness of most of the documents produced by either side is under challenge. The trial court held that the genuineness of the documents can be considered only at the time of trial and that too after taking evidence. However, only on the ground that the original documents produced by the plaintiff show that the plaintiff has an arguable case, the trial court granted temporary injunction. There was no discussion on the merits of the contentions raised by the respective parties, in the order passed by the trial court. ``` ``` 6. The lower appellate court, in CMA No.32 of 2010, considered the pleadings and the documents produced by both parties in great detail and held that the plaintiff has not made out a prima facie case to enable them to get temporary injunction. The appellate court also held that the balance of convenience is not in favour of granting temporary injunction. The ``` ``` O.P(C).No.187 OF 2011 6 ``` ``` appellate court also concurred with the trial court that the genuineness or otherwise of the documents is to be considered at the time of trial and after considering the evidence on record. The appellate court also held that most of the documents produced by either side came into existence after the dispute arose and many of them came into existence after filing the suit. However, the appellate court, on a perusal of the documents came to the conclusion that at least from 2007 onwards, the defendants were in administration and management of the affairs of the temple. The appellate court based its conclusion mainly on Ext.A17, the document produced by the plaintiff itself. Based on Ext.A17, the appellate court held that there were lot of allegations against the committee under the plaintiff in the matter of administration of the affairs of the Kavu by them and for some time the committee was defunct. The appellate court also took note of ``` ``` O.P(C).No.187 OF 2011 7 ``` ``` the contention raised by the defendants that during various periods various other committees were in management of the affairs of the Kavu. Disputes which arose between the parties were also taken note of by the court below. The court below held that at least in 2007-2008, the state of affairs was that the defendants were in management of the affairs of the temple. Applying the theory of carrying forward the state of affairs, as held inAmbika Prasad ``` ``` Thakur & Ors. v. Ram Ikbal Rai(dead) by L.Rs. & ``` ``` Ors.(AIR 1966 SC 605), the state of affairs which was in existence should be deemed to be in existence unless it is shown that a different state of affairs came into existence in the meanwhile. The court below held that the trial court did not properly consider the pleadings and documentary evidence and did not also ``` ``` consider the parameters which should be considered by the court in the matter of ``` ``` O.P(C).No.187 OF 2011 8 ``` ``` granting or refusing injunction. Thus, the appellate court held that the plaintiff is not entitled to get temporary injunction. ``` `7. In the Original petition under Article` ``` 227 of the Constitution of India, it may not be proper for the High Court to interfere with the findings of fact arrived at by the Subordinate Court unless it is shown that there was an error of law or manifest injustice or jurisdictional error. In the case on hand, there is no such situation. ``` ``` 8. The learned counsel for the petitioner submitted that the appellate court has arrived at many findings and observations, which may affect the plaintiff at the time of trial. It is true that the appellate court has, on a consideration of various documents, arrived at certain conclusions which normally should be arrived at, at the time of trial and after ``` ``` O.P(C).No.187 OF 2011 9 ``` ``` considering the evidence. The appellate court was clearly aware of it and the documentary evidence was considered only to ascertain whether there was prima facie case for granting injunction in favour of the plaintiff. However, it is made clear that the findings and observations made by the court below in the judgment impugned were arrived at only for the purpose of considering and disposing of the request for granting temporary injunction and those findings and observations in no way should be relied upon by the trial court or by the appellate court while disposing of the suit or the Appeal, if any, on the merits. ``` ``` with the above observations, the Original Petition is dismissed. ``` ``` K.T.SANKARAN, JUDGE. ``` ``` cms ```