Dismissed

Kedenji Sri Mahavishnu Kshetra Seva Samithi v. Jeernodhara Samithi of Sri Kedenji Sri Mahavishnu Kshethram Kedenji

Kerala HC2 Nov 2016OP(C)/2724/2016

Case brief

AI extract

What is this about?

Petitioners challenged an order permitting an election to be conducted under suspension of the judgment. The court held that since the lower court record indicated parties were heard, the remedy lies in review before the lower court, not via Article 227.

What did the court decide?

the petition disposed of leaving open the right to file a review application before the district court.

Kedenji Sri Mahavishnu Kshetra Seva Samithi Vs… — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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OP(C).No. 2724 of 2016 (O)

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PETITIONER(S):

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1. KEDENJI SRI MAHAVISHNU KSHETRA SEVA SAMITHI, REP. BY ITS PRESIDENT, SRI VASANTAHA PAI, AGED 59 YEARS, MERCHANT, BADIADKA, KASARAGOD TALUK, P.O.PERDALA, KASARAGOD TALUK.

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2. SATHISH SHETTY, AGED 49 YEARS, SECRETARY OF SRI MAHAVISHNU KSHETRA SEVA SAMITHI RESIDING AT DEYYANDRE HOUSE, BADIADKA VILLAGE, KASARAGOD TALUK, P.O.UKKINADKA, KASARAGOD. 3. UMESH RAI, AGED 37 YEARS, TREASURER OF SRI MAHAVISHNU KSHETRA SEVA SAMITHI S/O RAMANANTHA RAI, KASARAGOD DISTRICT CO-OPERATIVE BANK, BADIADKA EVENING BRANCH, P.O.PERDALA, KASARAGOD. 4. THIRUPATHIKUMAR BHAT, AGED 57 YEARS, VICE PRESIDENT OF SRI MAHAVISHNU KSHETRA SEVA SAMITHI PERUMUKHA HOUSE, NEERCHAL VILLAGE, KASARAGOD TALUK, P.O.PERDALA, KASARAGOD. 5. RAMA MASTER PILANKATTEE, AGED 70 YEARS, JOINT SECRETARY OF SRI MAHAVISHNU KSHETRA SEVA SAMITHI, BADIADKA HOUSE, NEERCHAL VILLAGE, KASARAGOD TALUK, P.O.PERDALA, KASARAGOD. 6. ANANDA B, AGED 60 YEARS, JOINT SECRETARY OF SRI MAHAVISHNU KSHETRA SEVA SAMITHI, BADIADKA HOUSE,NEERCHAL VILLAGE, KASARAGOD TALUK, P.O.PERDALA, KASARAGOD.

....2/-

..2..

OP(C).No. 2724 of 2016 (O) ---------------------------

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7. B.VASANTHA PAI, S/O ACHUTHA PAI, MERCHANT, RESIDING AT BADIADKA, KASARGOD TALUK, P.O.PERDALA, KASARAGOD. BY ADVS.SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.ELDHO ALIAS SMT.NEENU PAVITHRAN SRI.SANGEETH BINOY THEVARKATTIL

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RESPONDENT(S): --------------

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1. JEERNODHARA SAMITHI OF SRI KEDENJI SRI MAHAVISHNU KSHETHRAM, KEDENJI, REP. BY ITS SECRETARY SRI.T.RAMESH, AGED 59 YEARS, S/O LATE KARUNAKARAN NAMBIAR, RESIDING AT PAYYANNUR, CORRESPONDENT IN BADIADKA, BADIADKA VILLAGE, KASARAGOD TALUK, P.O.PERDALA, KASARAGOD- 671 551. 2. P.RAMA, S/O LATE APPU, AGD 66 YEARS, RESIDING AT IKKERI HOUSE, BADIADKA VILLAGE,KASARAGOD TALUK, P.O.PERDALA, KASARAGOD - 671 551. 3. RAMESH ALVA, S/O BABU ALVA, AGED 35 YEARS, RESIDING AT KADARAU HOUSE, BADIADKA VILLAGE,KASARAGOD TALUK, P.O.PERDALA, KASARAGOD - 671 551. 4. SRI VISHNUPRIYA BHAJANA SANGAHA, REP. BY THE 1ST PLAINTIFF T.RAMESHAN, S/O LATE KARUNAKARAN NAMBIAR, RESIDING AT PAYYANNOOR, CORRESPONDENT IN BADIADKA VILLAGE,KASARAGOD TALUK, P.O.PERDALA, KASARAGOD - 671 551. 5. N.SUBBA RAO, AGED 84 YEARS,S/O RAMAPPAYYA, RESIDING AT NELLIKUNJE HOUSE, BADIADKA VILLAGE,KASARAGOD TALUK, P.O.UKKINADKA, KASARAGOD. 6. BHASKARA RAO KEDENJI, AGED 67 YEARS, S/O GOPALAKRISHNAYYA, RETIRED TAHSILDAR, RESIDING AT SINDHURA HOUSE,HOUSANGADI, MANJESWAR VILLAGE, KASARAGOD TALUK, P.O.MANJESWAR, KASARAGOD.

.....3/-

..3..

OP(C).No. 2724 of 2016 (O)

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7. N.RAJASEKHARA RAO, AGED ABOUT 45 YEARS, S/O N.VISHNU RAO,NELLIKUNJE HOUSE, BADIADKA VILLAGE, KASARAGOD TALUK, P.O.UKKINADKA, KASARAGOD- 671 552.

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8. RAMAKRISHNA P, ADVOCATE COMMISSIONER, KASARAGOD.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2724 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBITP1	TRUE COPY OF THE JUDGMENT DATED 16-08-2016 IN OS 1 OF 2009 ON THE FILE OF THE DISTRICT JUDGE, KASARAGOD
EXHIBITP2	TRUE COPY OF THE DECREE DATED 16-08-2016 IN OS 1 OF 2009 ON THE FILE FO THE DISTRICT JUDGE, KASARAGOD
EXHIBITP3	TRUE COPY OF THE ORDER DATED 20-10-2016 PASSED IN I.A 2482/16 IN RFA 633/2016 ON THE FILE OF HON'BLE HIGH COURT OF KERALA
EXHIBITP4	TRUE COPY OF THE MEMO DATED 25-10-2016 ALONG WITH THE LIST OF MEMBERS SUBMITTED BY THE COMMISSIONER APPOINTED BY THE DISTRICT COURT,KASARAGOD IN OA 1 OF 2009
EXHIBITP5	TRUE COPY OF THE NOTICE DATED 25-10-2016 PUBLSIHED BY THE 8TH RESPONDENT COMMISSIONER IN CARVEL KANNADA EVENING PAPER PUBLISHED ON 27-10- 2016
EXHIBITP6	TRUE COPY OF MEMO DATED 24-10-2016 SUBMITTED BY THE 8TH RESPONDENT COMMISSIONER BEFORE THE DISTRICT COURT, KASARAGOD IN OA 1 OF 2009 SEEKING COPY OF EXHIBIT A12 FOR PREPARATION OF THE VOTERS LIST
EXHIBIT P7	TRUE COPY OF THE NOTICE OF GENERAL BODY MEETING ISSUED BY THE COMMISSIONER DATED 25-10-2016
EXHIBIT P8	TRUE COPY OF THE MEMO DATED 25-10- 2016 FOR DIRECTIONS AND ORDER ALONG WITH LIST OF MEMBERS BEFORE THE DISTRICT COURT, KASARAGOD IN OA 1 OF 2009
EXHBIT P9	TRUE COPY OF THE ORDER DATED 25-10-2016 PASSED BY THE DISTRICT COURT, KASARAGOD IN OA 1 OF 2009 ON THE FILE FO THE DISTRICT JUDGE, KASARAGOD

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY

P.S. TO JUDGE

K. Ramakrishnan, J.

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============================== O.P.(C)No.2724 of 2016

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============================== Dated this, the 02^nd day of November, 2016.

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J U D G M E N T

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This petition has been filed by the petitioners, challenging Ext.P9 order passed by the court below, under Article 227 of the Constitution of India.

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It is alleged in the petition that the respondents herein filed O.S.No.1/2009, seeking certain reliefs of declaration and injunction in respect of the administration of Jeernodhara Samithi of Sri Mahavishnu Kshethram, Kedenji. After trial, the suit was decreed evidenced by Ext.P1 judgment and followed by Ext.P2 decree. The petitioners filed appeal against the same before this Court as RFA.No.633/2016 and obtained Ext.P3 stay order. The Commissioner appointed to conduct election as per Ext.P1, has submitted Ext.P4 list of members, before the court and also published Ext.P5 notice fixing the date of election to be conducted for the Samithi. He filed Ext.P6 memo along with Ext.P7 notice of General Body and

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O.P.(C)No.2724 of 2016 : 2 :

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Ext.P8 memo before the court seeking certain directions from the court for conducting General Body and election as scheduled as per the notice. Court below by Ext.P9 order, granted permission to the Commissioner to conduct the election, which is under challenge.

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Heard Shri.R.S.Kalkura, counsel appearing for the petitioners.

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The counsel appearing for the petitioners submitted that the draft voters list has been prepared by the Commissioner without consulting with the parties. Further, Ext.P9 order was passed on the same date, on which the petition was filed and according to the counsel, no hearing was conducted and the court below simply passed the order without hearing any of the affected parties.

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It is an admitted fact that the respondents herein filed O.S.No.1/2009 for declaration and injunction in respect of the administration of Jeernodhara Samithi of Sri Mahavishnu Kshethram, Kedenji and after trial, the court below decreed the suit, evidenced by Ext.P1

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O.P.(C)No.2724 of 2016

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: 3 :

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judgment followed by Ext.P2 decree, in which, the court below had granted the following reliefs:

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“ 57. In accordance with the above conclusions, the suit is decreed as follows:

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First defendant society has no right over the administration of Kedenji Sri Mahavishnu Temple.

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First defendant and its office bearers defendants 2 to 8 are restrained by an injunction from interfering with the affairs of Kedenji Sri Mahavishnu Temple, from handling its assets and from causing obstructions to the devotees from offering their worship therein.

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A general body meeting of first plaintiff Samithi shall be convened within three months from today to elect the office bearers to its governing body under the supervision of this court.

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Advocate P.Ramakrishna is appointed the Commissioner to convene the General Body of first plaintiff Samithi for the above purpose.

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Defendants 1 to 8 are directed to hand over the records and registers relating to first plaintiff Samithi in their possession to the advocate commissioner.

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Advocate Commissioner shall prepare the list of members of the General Body after scrutinising the said records and registers and

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O.P.(C)No.2724 of 2016 : 4 :

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in accordance with the provisions of Societies Registration Act and the rules and regulations of first plaintiff Samithi.

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Advocate commissioner shall oversee the election of the office-bearers of the first plaintiff Samithi.

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The list of the office bearers of first plaintiff Samithi so elected shall be forwarded to this court for approval.

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After approval by the court, the advocate commissioner shall oversee the assumption of office by the office-bearers of the first plaintiff Samithi and report the fact to this court.

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The list of office bearers of first plaintiff Samithi who have assumed office as above shall be forwarded to the District Registrar Kasaragod for his approval with intimation to this court.

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The Advocate Commissioner may, if it is found necessary, seek appropriate directions from this court from time to time.

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The initial remuneration of the Advocate Commissioner is fixed as Rs.25000/- to be deposited by the first plaintiff in this court within one month from today.

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In the circumstances there is no order as to costs.”

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O.P.(C)No.2724 of 2016 : 5 :

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It is true that the petitioners herein filed RFA.No.633/2016 before this Court against Ext.P1 judgment and filed I.A.No.2482/2016, to stay the proceedings. But, this Court, by Ext.P3 order only granted a conditional stay, which reads as follows:

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“There shall be an interim order that the results of the election to be held as directed by the lower court shall be published only after obtaining permission from this court.”

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So, this order will go to show that there is no restriction in conducting the election, but, the result of the election can be published only after getting permission from the court before which the appeal is pending. It is on that basis that the Commissioner had submitted Ext.P4 draft voters list, Ext.P5 notice of election proposed to be conducted, Ext.P6 memo and Ext.P7 notice of General Body Meeting and Ext.P8 memo seeking permission of the court to conduct election on that basis. It is seen from Ext.P9 order passed by the court below that the petition was filed on 25.10.2016 and

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O.P.(C)No.2724 of 2016

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: 6 :

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the order was also passed on the same date. But, the grievance of the petitioners was that none of the parties to the suit have been heard before passing such an order and they have got grievance regarding the voters list prepared and even the notice regarding General Body to be conducted on 31.10.2016 has not been communicated to them. Only a notice has been published in the notice board alone. If the grievance of the petitioners is that they were not heard and Ext.P9 order was passed without hearing them, then, the remedy of the petitioners is to file an application to review that order before the same court and not to approach this Court under Article 227 of the Constitution of India, as it is seen from the order that the counsel for the plaintiffs and defendants were heard and only thereafter the order has been passed. What transpired before that court can be known only to that court. So, under such circumstances, the remedy of the petitioners is to file an application to review that order and not to approach this Court under Article 227 of the Constitution of India. So, this Court feels that the petition

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O.P.(C)No.2724 of 2016 : 7 :

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can be disposed of leaving open the right of the petitioners to file an application before District Court, Kasaragod, to review Ext.P9 order and if such an application is filed, the court below is directed to consider

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and pass appropriate orders in that application after hearing all the counsels appearing in the matter and interested in the matter.

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With the above direction and observation, the petition is disposed of. Registry is directed to communicate this judgment to the court below at the earliest.

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Sd/-

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K.Ramakrishnan, Judge.

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Bb/03/11/2016

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[True copy]

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P.A to Judge

Kedenji Sri Mahavishnu Kshetra Seva Samithi v. Jeernodhara Samithi of Sri Kedenji Sri Mahavishnu Kshethram Kedenji

Case brief

What is this about?

What did the court decide?

Kedenji Sri Mahavishnu Kshetra Seva Samithi v. Jeernodhara Samithi of Sri Kedenji Sri Mahavishnu Kshethram Kedenji

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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