Vasudevan Nair v. Gopalakrishnan Nair and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** ## **OP(C).No. 2069 of 2016 (O)** **--------------------------I.A. NO.590/2016 IN O.S. NO.246/2012 OF SUB COURT, MAVELIKKARA.** **.......** ## **PETITIONER/PLAINTIFF:** **-------------------------------------** **VASUDEVAN NAIR, S/O NARAYAN NAIR, SUMA BHAVANAM VEDU, KADUVINAL MURI, VALLIKUNNAM VILLAGE, JOINT SECRETARY OF KADUVINAL PAROYARATHUKULANGARA, SREE BHADRA BHAGAVATHI KSHETHRA BHARANA SAMATHI, VALLIKUNNAM.** **BY ADVS.SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL.** ## **RESPONDENT/DEFENDANTS:** **--------------------------------------------** **1. GOPALAKRISHNAN NAIR, S/O NARAYANAN NAIR, KISHNA BHAVAN VEDU (KOPPARA), KADUVINAL MURI, VALLIKUNNAM, ALAPPUZHA-690 501.** **2. ANIL KUMAR,** - **S/O NARAYANAN NAIR, KISHNA BHAVAN VEDU (KOPPARA), KADUVINAL MURI, VALLIKUNNAM, ALAPPUZHA-690 501.** **3. AJITH KUMAR, S/O NARAYANAN NAIR, KISHNA BHAVAN VEDU (KOPPARA), KADUVINAL MURI, VALLIKUNNAM, ALAPPUZHA-690 501.** **4. ASOKA KUMAR, S/O NARAYANAN NAIR, KISHNA BHAVAN VEDU (KOPPARA), KADUVINAL MURI, VALLIKUNNAM, ALAPPUZHA-690 501.** **5. KRISHNA KUMAR, S/O NARAYANAN NAIR, KISHNA BHAVAN VEDU (KOPPARA), KADUVINAL MURI, VALLIKUNNAM, ALAPPUZHA-690 501.** - **BY ADVS. DR.V.N.SANKARJEE, ADVS. SRI.S.SIDHARDHAN, SMT.R.UDAYA JYOTHI, SMT.M.SUSEELA.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. **OP(C).No. 2069 of 2016 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: A COPY OF THE PLAINT IN OS:NO.246/2012.** **EXHIBIT P2: A COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS ONE THREE AND FIVE.** - **EXHIBIT P3: A COPY OF THE WRITTEN STATEMENT FILED BY THE SECOND RESPONDENT.** **EXHIBIT P4: A COPY OF THE AMENDMENT APPLICATION.** **EXHIBIT P5: COPY OF THE OBJECTION PREFERRED BY THE FIRST RESPONDENT. EXHIBIT P6: COPY OF THE OBJECTION PREFERRED BY THE 2ND RESPONDENT. EXHIBIT P7: COPY OF THE OBJECTION PREFERRED BY THE 4TH RESPONDENT.** **EXHIBIT P8: COPY OF THE ORDER IN IA:NO.590/2016 IN OS NUMBER 246/2012.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE ORDER DATED 20/09/2012 IN I.A. NO.1040/2012 IN O.S. NO.246/2012 ON THE FILE OF THE SUB COURT, MAVELIKKARA. EXT.R1B COPY OF THE MEMORANDUM OF ASSOCIATION DATED 16/05/2011 OF THE PARIYARATHUKULANGARA AUDITORIUM BHARANA SAMITHI HAVING REGISTERED NO.62/2011.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- ## **O.P.(C) No.2069 of 2016** ------------------------------------------------- _Dated this the 30[th ] day of September, 2016_ ## **JUDGMENT** This petition is filed by the petitioner challenging Ext.P8 order in I.A.590/2016 in O.S.246/12 on the sub Court, Mavelikkare under Article 227 of the Constitution of India. 2. Ext.P1 suit was filed by the plaintiff for declaration of the right of the plaintiff committee to keep possession and management of Pariyarathukulangara Bhadra Bhagavathy temple shown as plaint A- schedule and for consequential reliefs in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure (hereinafter called ‘the Code’). In the plaint they have alleged that the temple originally belong to Koppara an ancient Nair Family of which defendants 1 to 5 are members and since the management of the temple could not be conducted by the family members, that has been entrusted to the committee and the committee is being managing the affairs of the temple since long time and it has become a public temple by virtue of the dedication made by the family members. The defendants 1 to 5 filed written statement denying the allegations including the l _ocus standi_ of the plaintiff to file the suit. According to them it belongs to the family and it is not a public temple and there was no dedication of the temple to the public as alleged by the plaintiff and the family _**O.P.(C) No.2069 of 2016**_ 2 members are managing the affairs of the temple and the committee has no right to manage the temple at all. They prayed for dismissal of the suit. Subsequently the petitioner filed Ext.P4 application as I.A.590/2016 for amendment of the plaint to add the following things. “(1) Aj|Lp¾]¤ KÐLU kLqL Wu]´V Af]R£ fOa¡\ÿpLp] ""kŸ]W KÐLU jÒ¡ vñO SƒNfU j]s×V fjfV vñOvLp]ŸLeV BiLq°t] sOU rvj|P r]¨L¡cOWt]sOU SqXRÕaO¾]p]ŸOçfV. A°RjpOç KÐLU jÒ¡ vñOvOU Af]¤ j]s×V SƒNf¾]sOU kºOWLsU oOfSs WaOv]jL¤ NkShwR¾ RRzÎv¡ RkLfOv]¤ BqLij ja¾]vqOÐfLeV. AfV RRzÎvqORa KqO AvWLwRoÐ j]sp]¤ kºOWLsU oOfSs ja¾]vqOÐfLeV. B j]sp]sOç AvWLw vu]pOç RkLfO BqLijoPsvOU, RkLfO AvWLwRoÐ j]sp]sOU, RkLfOvLp dedication oPsvOU, kq]pLq¾OWOt°q è}nNhLnYvf] SƒNfU KqO RkLfO BqLijL òsoLp] f}¡Ð]ŸOçfLeV"" IÐOU (2) Aj|Lp¾]¤ 6&LU kLqLp]¤ "4&LU vq]p]¤" RWLÕLrWOaOUm¾]R£ vWpLp] qOÐfOU IÐfV oLã] ""RWLÕLr WOaOUm¾]R£ j]pNÍe¾]sLp]qOÐfOU"" IÐOU (3) a] kLqLp]¤ fRÐ 14&LU oR¾ vq]p]¤ WOaOUm vW SƒNfU IÐfV oLã] kWqU ""WOaOUm¾]R£ Ai}jf]p]sLp]qOÐ SƒNfU"" IÐOU f]qO¾] S\¡¨eU.” 3. First respondent filed Exts.P1, P2, P5, P6, and & P7 counters. The court below by Ext.P8 order dismissed the application stating that the admission made by the parties regarding the right of the temple cannot be withdrawn by virtue of the amendment. Dissatisfied with the same, the present petition has been filed. 4. Heard Sri.R.Sunil Kumar, counsel appearing for the petitioner and Dr.Sri.V.N. Sankarji, counsel appearing for the respondents 1 to 5. 5. The counsel for the petitioners submitted that there is no 3 ## _**O.P.(C) No.2069 of 2016**_ withdrawal of the admission. But by virtue of the amendment, they wanted only to state that it belongs to them and it was in their possession and control and they have also stated that there was a dedication and they wanted to add certain things as seen in the revenue records and nothing more. It will not change the character of the suit or withdrawal of any admission. Even if there is any inconsistent pleas taken, that will not be a ground for rejection of the amendment application and court can consider those aspects and opportunity must be given to explain the different stand taken by the parties at the time of trial. He had relied on the decision reported in _**Akshaya restaurant v. Anjanappa and another**_ (AIR 1995 SC 1498) in support of his case. 6. On the other hand, the counsel for the respondent submitted that the petitioner is not entitled to amend the plaint inconsistent with the earlier stand taken, thereby, denying the admission of ownership of the temple with the family. He had relied on the decision reported in _**M/s.Estralla Rubber v. Dass Estate (Pvt.) Ltd.,**_ (AIR 2001 SC 3295) 7. It is an admitted fact that the suit was filed by the plaintiff who is the petitioner herein in a representative capacity for a declaration that the plaint A-schedule temple is a public temple and _**O.P.(C) No.2069 of 2016**_ 4 the plaintiff committee alone is entitled to manage the affairs of the temple and for consequential reliefs. In paragraph 6 of the plaint, they have reiterated as to how the committee has come in possession of the management of the temple where they have stated that the temple originally belongs to Koppara Family of an ancient Nair Tharavad of which the defendants 1 to 5 are members. They have also stated that, since the temple has become dilapidated and the family members were not able to manage the affairs of the temple, a committee has been formed and it has been entrusted to the committee, thereafter the committee is looking after the affairs of the temple and there was a dedication of the temple to the public and the temple is being used as a public temple and the Hindus of that locality are worshiping in the temple. The right claimed by the plaintiff has been denied by the respondents herein. Now by virtue of the amendment instead of the word “belongs to (vWpLp]qOÐO)” want to add “under the control (Ai}j¾]sOºLp]qOÐfV.)” and also want to add certain portions as mentioned about the temple as described in the revenue records in the plaint. In order to claim a dedication of the property, the persons claiming dedication has to admit the title of the person who had made dedication of the property. Even as per the _**O.P.(C) No.2069 of 2016**_ 5 allegations in the plaint, the case of the plaintiff was that, it was originally a family temple, later it was entrusted to the committee for management and thereafter as per the dedication made by the family members, the people in the locality were treating that as a public temple and is being enjoyed as a public temple and the family of respondents 1 to 5 cannot have any absolute control over the management of the temple. So under such circumstances, it cannot be said that there was any contradiction or withdrawal of the admission regarding the right of the family, but according to them, the right has been entrusted to the plaintiff by dedication made. So under such circumstances, merely because certain nomenclature of the right of the family has been mentioned by way of amendment, it cannot be said that they are denying the original title of the family, thereby withdrawing the admission made. 8. In the decision reported in _**Akshaya restaurant v. Anjanappa and another**_ (AIR 1995 SC 1498), the Apex court has held that, even if any inconsistent plea has been taken by virtue of the amendment, that cannot be a ground for rejecting the application for amendment, but an opportunity has to be given to the plaintiff to explain the circumstances under which the earlier plea was taken by them. Even in the decision reported in _**M/s.Estralla Rubber v. Dass**_ _**O.P.(C) No.2069 of 2016**_ 6 _**Estate Pvt., Ltd.,**_ (AIR 2001 SC 3295), relied on by the court for the respondent, the position is not different. But that was a case where the defendant had earlier admitted the right of the plaintiff claimed in the plaint, thereafter by virtue of the amendment he wanted to withdraw the admission. So under such circumstances, the Supreme Court has held that such an amendment cannot be allowed, if that causes prejudice to the other party to the proceedings. 9. But in this case in order to get a reliefs claimed in the plaint, plaintiff cannot deny the paramount title of the family of the respondents 1 to 5, but they can only claim that there was a dedication and thereby the family has relinguished the right in respect of the management of the temple and the temple committee had acquired the right. So under such circumstances, the amendment made cannot be said to be an inconsistent plea or withdrawal of the admission regarding the right of the family as observed by the court below and that cannot be a ground for rejection of the application. Even if the amendment is allowed the defendants will be getting an opportunity to file additional written statement and they can file additional written statement controverting the allegations incorporated by virtue of amendment and all things can be considered by the court at the time of trial. Since the reasons given by the court below for _**O.P.(C) No.2069 of 2016**_ 7 rejectng the application for amendment is not sustainable in law. The order passed by the court below dismissing the application has to be set aside and the petition for amendment has to be allowed. So the original petition is allowed and Ext.P8 order in I.A.590/2016 in O.S.246/2012 of Sub Court Mavelikkara dismissing the application for amendment is set aside and the petition is allowed. Petitioner is permitted to carryout the amendment. Respondents 1 to 5 who are defendants 1 to 5 in the court below are permitted to file additional written statement on the basis of the amended plaint and thereafter the court below can proceed with the trial of the case. Considering the fact that the case is of the year 2012, the court below is directed to expedite disposal of the suit as expeditiously as possible at any rate before the courts closes for summer vacation. With the above direction and observation, the petition is allowed and disposed of. Registry is directed to communicate this judgment to the court below at the earliest. _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss