Uranma Devaswom Board v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** **RP.No. 448 of 2018 IN WPC. 40469/2017** **AGAINST THE ORDER/JUDGMENT IN WP(C) 40469/2017 of HIGH COURT OF KERALA DATED 15-12-2017** ## **REVIEW PETITIONER(S)/PETITIONER** **URANMA DEVASWOM BOARD, REGISTRATION NO.77/1957, PALLIKKAVU MADOM, VADUTHALA, KOCHI-682 023. REPRESENTED BY ITS GENERAL SECRTARY.** **BY ADV.SRI.N.ASHOK KUMAR** ## **RESPONDENT(S):/RESPONDENTS** **1. THE STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, KOTTAYAM 686 001.** ## **3. THE SUB INSPECTOR OF POLICE,** **CHANGANACHERRY POLICE STATION, CHANGANACHERRY P.O, KOTTAYAM 686 101.** ## **4. SADASIVAN,** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, ARCHANA HOUSE, PERUNNA EAST, CHANGANACHERRY, KOTTAYAM- 686 102.** **5. N.P.KRISHNA KUMAR, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, NIRANATHU VIVEKANANDALAYAM, PERUNNA, CHANGANACHERRY, KOTTAYAM - 686 102.** ## **6. SREEKUMAR @ JAYAN,** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, USHUS, PERUNNA, CHANGANACHERRY, KOTTAYAM-686 102.** ## **7. DHEERASINHAN,** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, SUPRIYA, PERUNNA, CHANGANACHERRY, KOTTAYAM-686 102.** ## **8. SACHIN,** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THENCHERIL ILLOM, PERUNNA, CHANGANACHERRY, KOTTAYAM-686 102** **R1-R3 BY P.P.THAJUDEEN, SR.GOVERNMENT PLEADER** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RP 448/2018** ## **APPENDIX** ## **REVIEW PETITIONER'S EXHIBITS** |**ANNEXURE-I :**<br>**COPY OF ORDER DATED 27.4.2018 IN SLP NO.9943/2018 OF THE**| |---| |**HON'BLE SUPREME COURT OF INDIA.**| |**ANNEXURE-2 :**<br>**COPY OF JUDGMENT IN OS NO.382/2014 DATED 12.8.2016 OF THE**| |**MUNSIFF'S COURT, CHANGANASSERY.**| |**ANNEXURE-3 :**<br>**COPY OF JUDGMENT IS OS 462/1998 DATED 2.4.2002 OF THE**| |**MUNSIFF'S COURT, CHANGANASSERY.**| |**ANNEUXRE-4 :**<br>**COPY OF JUDGMENT IN AS 136/2002 DATED 27.3.2006 OF THE**| |**ADDITIONAL DISTRICT COURT, KOTTAYAM.**| ## **//TRUE COPY//** **PS TO JUDGE.** jg-18/6 K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------R.P.No.448 of 2018 in WP(C) No.40469 of 2017 ------------------------------------------Dated this the 7[th] day of June, 2018 ## O R D E R Ashok Menon, J. The petitioner in WP(C)No.40469 of 2017 is before us seeking review of the judgment passed by this Court on 15.12.2017 dismissing the Writ Petition holding that the dispute between the petitioner and the party respondents needs to be decided by a Civil Court of competent jurisdiction. Aggrieved by the judgment of this Court, the petitioner filed Petition for Special Leave to Appeal No.9943/2008 before the Honourable Supreme Court, which was not admitted, but was dismissed as withdrawn with liberty to file Review Petition before this Court, if necessary. Accordingly, this Review Petition has been filed by the petitioner. 2. The petitioner states that the judgment of this Court is passed without considering the fact that the right of the petitioner is already found and established by a competent Civil Court in OS Nos.382/2014 and 462/1998. Copies of the judgments in the above mentioned suits and in AS No.136/2002 of the Additional District Court, Kottayam were RP 448/18 -2- misplaced at the time of filing of the Writ Petition and, even after due diligence, the petitioner could not produce the same at the time of hearing of the Writ Petition. Despite the fact being mentioned in paragraph 7 of the memorandum of Writ Petition, the petitioner could not produce the documents in support of their averments. It is stated that this Court ought to have appreciated the fact that the Civil Court has categorically found that the administration and management of Keezhkulangara Mahadeva Temple is vested with the petitioner as per judgments in OS No.462/1998 and AS No.136/2002 as well as in OS No.382/2014. That apart, it is submitted that the observations made in paragraph 4 of the judgment that the party respondents claim to be the “uralars”, whose predecessors in interest had allegedly handed over their proprietary right to the petitioner Devaswom Board; and the question whether the party respondents have any existing right over the temple and its affairs, or whether the petitioner is the exclusive authority to administer the temple is something to be decided by the civil court of competent jurisdiction, are wrong and are not based on any material produced. Respondents 4 to 8 do not RP 448/18 -3- have any right over the property and neither they nor their predecessors are/were uralars of the temple. This Court ought to have considered that five uralars of the family had surrendered the temple to the petitioner Board. In OS No.382/2014, respondents 4 and 5 are also impleaded. The petitioner has also taken exception to the finding that the petitioner is at liberty to get their rights established and protected through a Civil Court, as the right of the petitioner already stands established by the competent Civil Court, which is also mentioned in paragraph 7 of the Writ Petition. Hence, it is prayed that the Review Petition may be allowed as prayed for and the judgment of this Court dated 15.12.2017 be reviewed. 3. We have heard the learned counsel for the petitioner and the learned Senior Government Pleader. 4. The petitioner now contends that the dispute between the party respondents and the petitioner has been resolved in two suits by the Munsiff’s Court, Changanassery and confirmed in an appeal filed before the Additional District Court, Kottayam. It is admitted by the review petitioner that copies of those judgments were never produced for perusal by RP 448/18 -4- this Court, though in paragraph 7 of the Writ Petition it is stated that in OS No.382/2014 on the file of Munsiff’s Court, Changanassery filed by a Melsanthi of the temple against the petitioner and respondents 4 and 5 herein, it was held that the petitioner herein alone is having right to control and manage the temple. 5. Order XLVII Rule 1(c) of the Code of Civil Procedure, 1908; states that a petitioner may apply for a review of judgment to the Court which passed the decree or made the order on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him. The petitioner cannot approach this Court for reviewing the judgment on the basis of documents, which were never produced for perusal and examination by this Court. The judgment in the Writ Petition cannot be reviewed on the basis RP 448/18 -5- of a document which was never produced together with the Writ Petition. 6. On the grounds raised in review, it is to be noticed that there is no dispute that respondents 4 to 8 and their men had raised contentions questioning the authority of the petitioner to administer the temple. The petitioner argues that respondents 4 to 8 illegally claim that they are office bearers of the temple advisory committee and are trying to obstruct the Manager of the temple appointed by the petitioner Board. The observation by this Court that respondents 4 to 8 claim to be the “uralars”, whose predecessors in interest had allegedly handed over their proprietary right to the petitioner Devaswom Board, may have been an error, which could be corrected. But that has not effected the reasoning on which the Writ Petition stood dismissed declining discretion on the facts pleaded. The party respondents are, in fact, claiming to be members of the advisory committee and trying to question the authority of the petitioner in administering the temple. 7. OS No.382/2014, a copy of the judgment of which is now produced as Annexure-2, regarding which RP 448/18 -6- the petitioner has mentioned in paragraph 7 of the Writ Petition, is admittedly a suit filed by a 'Melsanthi' of the temple against the petitioner and respondents 4, 5 & one another person to get his rights of priesthood established. The judgment would only indicate that the defendants in that suit were restrained from preventing the plaintiff from performing the religious duties as 'Melshanthi' of Keezhkulangara Mahadeva Temple. In the decretal portion, there is no declaration made regarding the right of the parties. The plaintiff therein asserted his right to carry on the poojas in the temple and sought an injunction against the defendants from interfering in his discharge of duties as a Melsanthi. The 1[st] defendant, who is the petitioner herein, sailed along with the plaintiff. 8. Similarly, Annexure-3 is the judgment in OS No.462/1998 of the Munsiff’s Court, Changanacherry, wherein there is a declaration of the plaintiff’s (who is a lady named Shanthakumari) right of easement of way in the property described as schedule item No.5 and the respondents therein have been restrained from causing any obstruction to the use of the pathway by her. AS 136/2002 on the file of RP 448/18 -7- Additional District Court, Kottayam was filed challenging Annexure-3 judgment of the Munsiff’s Court and that appeal was dismissed as per Annexure-4 judgment finding existence of a pathway used by the plaintiff in that suit. There is no suit filed or decreed, establishing the inter se rights between the petitioner and the party respondents. The petitioner is said to be a registered society, but the statute under which it is registered is not forthcoming. The petitioner is not a statutory Board and as we have already observed, has to establish their right to administer a temple, if it is opposed by third parties. What is established in the suits projected by the petitioner is the rights of the respective plaintiffs to continue as Melsanthi (OS No.382/2014) and to use a pathway (OS No.462/1998). No declaration of the right of the petitioner to administer the temple can be ferreted out from the judgments and decrees therein passed. 9. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, [AIR 1980 SC 674] the Hon'ble Supreme Court has held that, if the view adopted by the Court in the original judgment is also a view that is possible, having regard to what the RP 448/18 -8- record states; it is difficult to hold that there is error apparent on the face of the record. In Thungabhadra Industries Ltd v. Government of Andra Pradesh, [AIR 1964 SC 1372], the Hon'ble Supreme Court has held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. In Parsion Devi v. Sumitri Devi, [1997 (8) SCC 715], the Apex Court reiterated that review is possible only if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power review under Order XLVII R.1 of the Code. It is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. In Lily Thomas v. Union of India, [AIR 2000 SC 1650], the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view, and reiterated that the review cannot be treated like an appeal in disguise. RP 448/18 -9- In such circumstances, applying the dictum laid down in a catena of decisions and also on the reasoning adopted with respect to the grounds of revision, we find that there is absolutely no reason for reviewing the judgment dated 15.12.2017 in WP(C) No.40469/2017 and the review petition is only to be dismissed and we do so. We however observe that the reference to the party respondents as “uralars” and their descendants is an error apparent on the face of the record. We delete that observation and notice that they style themselves as members of a temple advisory committee. No order as to costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE jg