Sree Panakkalam Subrahmanya Swami Temple v. Thalavil Kalambeth Valiyaveettil Vasantha, Managing Trustee Malur Padi Sanketham, and Chairman, Board of Trustees, Malur Padi Sanketham (OP(C) No. 389 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE EASWARAN S.** **MONDAY, THE 29**[TH] **DAY OF JULY 2024 / 7TH SRAVANA, 1946** ## **OP(C) NO. 389 OF 2016** **AGAINST THE ORDER IN IA NO.3183/2015 DATED 15.12.2015 IN OS NO.158 OF 1990 OF MUNSIF COURT, KUTHUPARAMBA** ## **PETITIONER/DEFENDANT NO.4:** **SREE PANAKKALAM SUBRAHMANYA SWAMI TEMPLE AGED 45 YEARS REPRESENTED BY THE CHAIRMAN OF THE TRUSTEE BOARD, SRI.PARAPHULLA JYOTHI, S/O.SREEDHARAN, P.O.MALUR, PIN 670 702, KANUR DISTRICT.** **BY ADV SRI.R.SURENDRAN** ## **RESPONDENTS/PLAINTIFF & DEFENDANT NOS.1 AND 2:** |**1**|**THALAVIL KALAMBETH VALIYAVEETTIL VASANTHA**| |---|---| ||**D/O.NARAYANI, PADINHARE HOUSE, NEAR VAYATHUR TEMPLE,**| ||**P.O.ULLIKKAL, IRITTY TALUK, KANNUR DISTRICT 670702.**| |**2**|**MANAGING TRUSTEE MALUR PADI SANKETHAM**| ||**MALUR, P.O.MALUR, PIN 670 702, KANNUR DISTRICT.**| |**3**|**CHAIRMAN**| ||**BORAD OF TRUSTEE, MALUR PADI SANKETHAM, MALUR, P.O.MALUR,**| ||**PIN 670 702, KANNUR DISTRICT.**| ||**BY ADVS.**| ||**SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL**| ||**SRI.NIAS MOOPAN**| ||**SRI.K.V.PAVITHRAN**| ||**SRI.P.SAJU**| ||**SRI.E.M.UNNIKRISHNAN MANJERI**| **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO. 389 OF 2016** **2** ## **J U D G M E N T** The 4[th] defendant in a suit for prohibitory injunction has come up with the present original petition under Article 227 of the Constitution of India. O.S.No.158 of 1990 was instituted by the 1[st] respondent herein, seeking an order of injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the plaint schedule property. Defendants 1 and 2 remained ex-parte in the suit. Hence, the suit was decreed in favour of the plaintiff. 2. However, the present petitioner being the Trustee Board of Sree Panakkalam Subrahmanya Swami Temple filed an application for setting aside the ex-parte decree and also for impleading themselves as the additional 4[th] defendant. 3. By Ext.P4 order dated 04.07.2015, the Munsiff Court, Kuthuparamba, set aside the ex-parte decree and allowed the application for impleading. Consequent upon the petitioner being impleaded as the additional 4[th] defendant, they had preferred a written statement. While so, the petitioner preferred an application under Order XXVI Rule 10 of the Code of Civil Procedure to set aside a report of the Advocate Commissioner filed in the suit. The main ground under which the application **OP(C) NO. 389 OF 2016** **3** was filed, was that the Commissioner had inspected the property before the petitioner was impleaded as the 4[th] defendant and therefore, it was highly necessary to remit the report of the Advocate Commissioner. 4. In addition to the prayer for remitting the report, a direction was also sought for the appointment of another Commissioner to report with a plan about the facts stated in the affidavit. The plaintiff objected to the said prayer but, however, conceded that if the report is to be remitted, the petitioner may be directed to bear the cost of a fresh Commissioner. 5. By Ext.P9 order dated 15.12.2015, the trial court rejected the application on the ground that the suit was for a simple injunction which could be decided based on possession and further that the 4[th] defendant/petitioner's property need not be identified or demarcated. Challenging the said order, the 4[th] defendant has approached this Court invoking the jurisdiction under Article 227 of the Constitution of India. 6. I have heard Sri.R.Surendran, learned counsel appearing for the petitioner. There is no appearance for the plaintiff and defendants 1 and 2. 7. Sri.R.Surendran, learned counsel for the petitioner, contended that the order passed by the trial court is completely **OP(C) NO. 389 OF 2016** **4** unsustainable. The suit is not for a simple injunction as observed by the trial court. With specific reference to the averments in paragraph 6 of the original petition, the learned counsel pointed out that the trial court had framed an issue on the title of the plaintiff. It was further pointed out that the possession of the plaintiff is based on a purchase certificate, which was set aside by the Appellate Authority and remanded back to the Land Tribunal. Thereafter, the further proceedings with respect to the grant of the purchase certificate are not known. 8. I have considered the submissions made across the Bar. 9. The power of the Court to issue Commission for local inspection is governed by the provisions of Order XXVI Rule 10 of the CPC. No doubt in the present case, the Court had appointed an Advocate Commissioner to ascertain the possession of the plaintiff, who had sought a decree for injunction restraining the defendants from trespassing on her property. 10. However, it is also indisputable that the issue framed by the Court also touches upon the plaintiff's title or possession over the property and the correct identity of the plaint schedule property. The fact that the original defendants remained ex-parte which led to Ext.P2 judgment being rendered in favour of the **OP(C) NO. 389 OF 2016** **5** plaintiff, can no longer be taken as a prime consideration. A reading of Ext.P4 order shows that the trial court, considering the fact that the deity is a perpetual minor and its interest has to be protected, set aside the said ex-parte judgment and decree on condition that the petitioner herein pays an amount of Rs.12,000/- as cost. On payment of the aforesaid amount as cost, admittedly, the judgment and decree stood set aside. 11. Consequently, the 4[th] defendant had every right to file an application under Order XXVI Rule 10 of the CPC, seeking an appointment of an Advocate Commissioner to identify the facts as stated in paragraph 2 of Ext.P7 petition. 12. It will be expedient to extract the points of reference as claimed in Ext.P7. “2. Apart from the above and in the light of the contentions of the D4, in order to disprove the case of the plaintiff and to prove the contentions of the D4 the following things are also required to be noted and reported by the commissioner. i) The lie, situation and nature of the entire temple property extending to 1 Acre 29 cent and its boundary marks, ii) The situation of the temple, its premises, compound and other structures, iii) The fact of slopping of entire temple property downwards towards south and east. iv) The fact that the entire temple property including the suit property is a single homogeneous **OP(C) NO. 389 OF 2016** **6** holding. The fact of having common improvements of the same nature and type like cashew, teak, jackwood, chamatha etc. in the entire property, v) The flattening of the middle section of the entire property by removing soil for erecting the temple, vi) Situation of the remaining north western section in the original condition compared to the southeastern section, vii) Nature of the property remaining undeveloped and uncultivated on the north and west of the courtyard of the temple, viii) Formation of mud revetment by removal of soil for temple construction, its nature, further chopping away of the same for widening the courtyard etc. ix) The fact of removal of soil and flattening of the extreme south eastern section of the temple for constructing plain open ground for conducting Navami Pooja Festival x) The flattening of the extreme north-eastern section of the entire temple property for constructing building of the office of the temple committee, xi) Formation of mud revetment in the said process separating the remaining western section lying in the original condition, xii) Situation of the temple office building, its structures, extent, well etc. on the north-eastern section, xiii) Absence of any boundary marks for the suit property as alleged and xiv) The fact that the suit property is not specifically demarcated or separated from the admitted property of the temple.” 13. A reading of the points to be ascertained by the Advocate Commissioner, would definitely show that the same is in **OP(C) NO. 389 OF 2016** **7** tune with issues 1 and 3 framed by the trial court in the present suit. When these facts were presented before the trial court, the trial court completely erred in relying on the judgment of this Court in **Righesh Babu v. Gopalan Nambiar** [ **2014 (4) KLT 654].** Though the principles stated in the aforesaid judgment cannot be disputed, the same would however, will not apply to the facts of the present case. 14. It is now settled law that even without setting aside the earlier report of the Advocate Commissioner, it is open for the Court to appoint another Advocate Commissioner to submit a report on additional points. This principle of law was reiterated by the Division Bench of this Court in **Laly Joseph v. Francis [2023 (2) KLT 516]** . The Trial Court ought to have granted the prayer as sought for by the petitioner herein. It is pertinent to note that the petitioner is representing the cause on behalf of a deity which is a perpetual minor. 15. Based on the principles as laid down in the aforementioned judgments, this Court is of the considered view that Ext.P9 order cannot be sustained. The 4[th] defendant/petitioner herein was entitled to have their application for Advocate Commissioner maintained. Therefore, the Trial Court should have necessarily allowed the said application and the facts **OP(C) NO. 389 OF 2016** **8** stated therein to be ascertained for the purpose of a fair disposal of the suit instead of taking a hyper technical view. It is further to be noted that even the plaintiff had not raised any serious objection to the application filed by the petitioner. Hence the order impugned calls for interference in exercise of the powers conferred by this Court under Article 227 of the Constitution of India. 16. In view of the above, Ext.P9 order is set aside. Ext.P7 application bearing I.A No.3183 of 2015 would be allowed. The Munsiff Court, Kuthuparamba, is directed to appoint an Advocate Commissioner to verify the facts required to be ascertained under Ext.P7, within a period of one week from the date of production of a copy of the Judgment. The Trial Court shall endeavour to complete the proceedings in the suit, as expeditiously as is possible, considering the fact that the suit is of the year 1990. Original Petition ordered accordingly. No order as to costs. SD/- **EASWARAN S. JUDGE** rp **OP(C) NO. 389 OF 2016** **9** ## **APPENDIX OF OP(C) 389/2016** **PETITIONER EXHIBITS** **EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT KUTHUPARAMBA EXT.P2 TRUE COPY OF THE JUDGMENT DATED 10.3.2010 IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA EXT.P3 TRUE COPY OF THE DECREE DATED 10.3.2010 IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF' COURT , KUTHUPARAMBA EXT.P4 TRUE COPY OF THE COMMON ORDER DATED 4.7.2015 IN IA NO.2430 OF 2012 IN OS NO.158 OF 1990 , IA NO.2431 OF 2012 IN OS NO.158 OF 1990- AND IA NO.2432 OF 2012 IN OS NO.158 OF 1990 IN ON THE FILE OF THE MUNSIFF'S COURT, KUTHUPARAMBA EXT.P5 TRUE COPY OF THE REPORT AND SKETCH PLAN DATED 6.1.2010 SUBMITTED BY THE ADVOCATE COMMISSIONER EXT.P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 25.9.2015 FILED BY THEPETITONER HEREIN AS SUPPLEMENTAL 4TH DEFENDANT IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA EXT.P7 TRUE COPY OF THE PETITON WITH AFFIDAVIT FILED AS IA NO.3183 OF 2015 IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA EXT.P8 TRUE COPY OF THE COUNTER FILED BY THE PLAINTIFF AGAINST THE IA NO.3183 OF 2015 IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA EXT.P9 TRUE OCPY OF THE ORDER DATE 15.12.2015 IN IA NO.3183 OF 2015 IN OS NO.158 OF 1990 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA EXT.P10 TRUE COPY OF THE SCREENSHOT OBTAINED FROM THE WEBSITE HTTP;//ENCOURTS.GOV.IN IN RESPECT OF OS NO.158 OF 1990 ON THE FILE OF THE MUNSIFF'S COURT, KUTHUPARAMBA.**