Allowed

Vamana Prabhu @ N.P.Prabhu v. Sree Krishnaswamy Devaswom

Kerala HC13 Jul 2011CRP/621/2010

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court of Kerala set aside the trial court's finding on the maintainability of an eviction suit. The Court held that determining whether the landlord is a private temple or a religious endowment involves factual questions requiring evidence, making it incorrect to decide it under a preliminary issue rule without a trial.

What did the court decide?

The impugned order of the Additional Munsiff, Kochi finding the suit maintainable on a preliminary basis is set aside, and the issue of maintainability is relegated to be decided after evidence during

Vamana Prabhu @ N.P.Prabhu Vs Sree Krishnaswamy Devaswom — Landlord and Tenant | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 CRP.No. 621 of 2010() --------------------OS.251/2009 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER/DEFENDANT: ----------------------------------------VAMANA PRABHU @ N.P.PRABHU, AGED ABOUT 75, S/O.PADMANABHA PRABHU, RESIDING AT CC.NO.5/817, GOPALAKRISHNA AVENUE ROAD, KOCHI - 682 002. BY ADVS. SRI.G.KRISHNAKUMAR, SRI.M.P.RETHNAM, SRI.P.H.SHAJI (THRIKKAKARA), SRI.TITTO THOMAS.

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RESPONDENT(S): PLAINTIFF: ---------------------------------------------SREE KRISHNASWAMY DEVASWOM, HAVING OFFICE AT C.C.NO.5/977, GOPALAKRISHNA AVENUE ROAD, KOCHI - 682 002, REPRESENTED HEREIN BY ITS TRUSTEE SRI.PANDURANG K.PARANJPE, S/O.LATE K.V.PARANJPE, AGED 54 YEARS, RESIDING AT C.C.NO. 5/972, G.K.AVENUE ROAD, KOCHI - 682 002. BY ADVS. SRI.V.V.ASOKAN, SRI.R.JAIKRISHNA.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Kss

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THOMAS P JOSEPH, J.

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C.R.P.No.621 of 2010

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Dated this 13^th day of July, 2011

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ORDER

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In a suit for eviction of petitioner/tenant,

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respondent/plaintiff/landlord claimed that it is a Hindu Religious Endowment entitled to get exemption from Act 2 of 1965 as per notification dated 19.11.1993. In answer to that, petitioner/tenant contended that respondent is a private temple which belonged to Babu Pandith Govinda Pandith. An issue regarding maintainability of the suit was raised. Petitioner produced Ext.B1, copy of the plaint filed by the respondent in another case to show that the temple in question is a family temple. Learned Additional Munsiff, Kochi found that (O.S.No.251 of 2009) there is nothing in Ext.B1 to show that respondent is a family temple. Instead, Ext.B1 revealed that temple belonged to the Maharashtra Brahmin Community and hence it cannot be said that it is a family temple. Learned Additional Munsiff observed that as per notification dated 19.11.1993 exemption is granted to religious and charitable endowment from the purview of Act 2 of 1965 and hence the suit is maintainable. That order is under challenge at the instance of petitioner/tenant.

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C.R.P.No.621 of 2010

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-: 2 :-

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Learned counsel submits that the question whether respondent is a private temple or, is a Hindu Religious Endowment can be decided only after recording evidence since it involves question of fact also and hence learned Munsiff was not right in deciding the question as a preliminary issue under Rule 2 of Order XIV of the Code of Civil Procedure (for short, "the Code”). It is therefore prayed that the impugned finding may be set aside and the question may be relegated to the trial stage for decision. Learned counsel for respondent contended that there is no reason to interfere with the finding.

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Under Rule 2 of Order XIV of the Code, the Court is required to pronounce judgment on all issues notwithstanding that case may be disposed of on a preliminary issue but, that is subject to sub rule (ii) of the said Rule which states that where the suit could be disposed of on an issue of law only relating to the jurisdiction of the Court or, a bar to the suit created by any law for the time being in force, it is open to the court to dispose of the suit on such preliminary issue. In the present case it would appear that maintainability of the suit would depend on the question whether respondent is a private temple or is a Hindu Religious Endowment. That in my view involves question of fact

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C.R.P.No.621 of 2010

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-: 3 :-

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as well. In that view of the matter the proper course was to decide the issue regarding maintainability of the suit in the course of trial after recording evidence.

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Resultantly this civil revision is allowed. The impugned finding of learned Additional Munsiff, Kochi in O.S.No.251 of 2009 is set aside and the issue regarding maintainability is relegated to be decided while the suit is being disposed of. If the pre-trial steps are over, learned Munsiff may expedite trial and disposal of the suit.

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(THOMAS P JOSEPH, JUDGE)

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Sbna/-

Vamana Prabhu @ N.P.Prabhu v. Sree Krishnaswamy Devaswom

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Vamana Prabhu @ N.P.Prabhu v. Sree Krishnaswamy Devaswom

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