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2025 DIGILAW 1582 (KER)

Iruvaikonam Bhagavathi Temple v. State of Kerala

2025-06-04

M.A.ABDUL HAKHIM

body2025
JUDGMENT : M.A. ABDUL HAKHIM, J. 1. Appellants are the Petitioners in O.P. (Trust) No.5/2022 seeking leave to institute a suit on behalf of the 1 st Applicant temple under S.92 of the Code of Civil Procedure , 1908. 2. The said Original Petition was originally allowed as per the order dated 06.12.2023, granting leave to the Applicants. At the time of passing the said order dated 06.12.2023, I.A No.2/2023 to implead supplemental respondents 7 and 8 was pending. Since the Original Petition was disposed of without considering I.A No.2/2023, this Court set aside the order dated 06.12.2023 as per judgment dt. 10.09.2024 in OP(C) No.463/2024 and remanded the matter back to Trial Court to consider the matter afresh after allowing I.A No.2/2023. Thereafter, the additional respondents 7 and 8 were impleaded in the Original Petition and the matter was re-heard and the impugned order was passed dismissing the Application for leave, holding that there is absolutely no pleading to find any of the grounds specified under S.92 CPC. In the Original Order dated 06.12.2023 Exts.A1 to A16 documents were marked from the side of the Applicants and Exts.B1 and B2 documents from the side of the respondents. In the impugned Order, none of the documents are shown in the Appendix. Since the documents which are shown in the Appendix of the Original Order form part of the records and the relevant documents among them are produced by the parties, I consider those documents as per the making of the same in the original order. 3. The short facts necessary for the disposal of this appeal as revealed from the pleadings are: The 1 st Applicant temple is situated in 29.27 Ares of land in Sy.5/8A in Thirupuram Village. Pursuant to the General Body decision on 08/08/1982, Ext.A11 Trust Deed was registered on 14/10/1982 by the Applicants 3 to 5 and others creating a Trust for the management of the Temple. The name of the Trust is ‘Eruvai Bhagavathi Kshethrayogam Trust’. The Trust Deed would show that Applicant No.3 was the Secretary, Applicant No.4 was the Assistant Secretary and Applicant No.5 was the member of the Committee managing the temple as on the date of the Deed. It shows that the Committee was elected every year. The name of the Trust is ‘Eruvai Bhagavathi Kshethrayogam Trust’. The Trust Deed would show that Applicant No.3 was the Secretary, Applicant No.4 was the Assistant Secretary and Applicant No.5 was the member of the Committee managing the temple as on the date of the Deed. It shows that the Committee was elected every year. The respondents 4 and 5 and certain others filed O.S No. 114/1983 seeking a declaration of title and possession over the property of the Temple. Initially, the suit was dismissed and in appeal, the suit was remanded back to the Trial Court. Thereafter, the suit was decreed, declaring the title and possession and passing a consequential injunction. In S.A.No.631/2001, the judgment and decree of the Trial Court was reversed and the suit was dismissed by this Court. Even though the respondents 4 and 5 filed Special Leave Petition before the Hon’ble Supreme Court, the same was dismissed. In Ext.A1 judgment dated 12/11/2019 in S.A No. 631/2001, this Court found that the temple acquired the character of a public temple and is managed by a section of people representing the deity represented through its Committee and President. When there occurred a law and order problem, the 2 nd respondent/District Collector initiated proceedings under 144 Cr.PC. After the disposal of the Second Appeal, the Applicants along with several persons filed Ext.A3 Petition before the 2 nd respondent to get key of the temple from the respondents 4 and 5. When the 2 nd respondent refused to take any action on the said petition, the 2 nd Applicant filed W.P.(C) No. 3648/2020 to consider the Application and the relief in the said writ petition was declined as per Ext.A4 judgment directing to the State Government to exercise its executive powers in case of law and order situation relating to the temple affairs. Though a Review Petition was filed as R.P.No.253/2021, it was dismissed as per Ext.A5 Order. The 2 nd Applicant filed W.A No. 1116/2021 before the Division Bench of this Court and the said Writ Appeal was dismissed by Ext.A6 judgment. The 2 nd Applicant filed SLP(C) No.19886/2021 before the Hon’ble Supreme Court and it was dismissed as per Ext.A7 judgment dated 10/12/2021, granting liberty to seek such other remedy as may be available to him in accordance with law. Thereafter the present Original Petition is filed seeking leave under S.92 CPC to institute a suit. The 2 nd Applicant filed SLP(C) No.19886/2021 before the Hon’ble Supreme Court and it was dismissed as per Ext.A7 judgment dated 10/12/2021, granting liberty to seek such other remedy as may be available to him in accordance with law. Thereafter the present Original Petition is filed seeking leave under S.92 CPC to institute a suit. The proposed plaint was also filed along with Application. 4. The claim of the Applicants in the Application is that the first plaintiff is a public religious trust. The Applicants 2 to 5 are having real and substantial interest in the management of the affairs of the 1 st Applicant/Temple, who are the elected representatives of the General Body of the 1 st Applicant. The claim of the respondents 4 and 5 and others on the temple property is dismissed as per Ext.A1 judgment in Second Appeal. The respondents 4 and 5 have not returned the key to the Applicants, who are the elected representatives of the public trust for proper management of the temple affairs. Though Ext.A11 Trust Deed was registered, the same did not come into effect on account of the subsequent suit and interim order therein. There is no Trust Deed for the proper management of the temple by the elected representatives and a scheme is necessary for the administration of the temple. The respondents 1 to 3 have been interfering with the administration to protect the respondents 4 and 5 even delaying the temple festival and administration. Necessary orders against them are essential for the proper management of the temple affairs, including the festival, by the elected representatives of the public trust. The temple has been demolished and the deity has been in the Balalaya for the last twelve years, and construction is also immediately needed for the abode of the deity. 5. When the Original Petition was filed there were only five respondents. The respondents 1 to 3 are State, the District Collector and the Sub-Divisional Magistrate. The respondents Nos.4 and 5 are the plaintiffs Nos.2 and 5 in O.S.No.114/1983. 6. In the Original Petition, the 6 th respondent who got impleaded himself filed a Counter Affidavit claiming that he is the Secretary of Eruvai Bhagawati Kshethra Yogam Trust. He contended, inter alia, that after registration of Ext.A11 Trust Deed, the temple has been administered in accordance with the rules and regulations provided in the Trust Deed. 6. In the Original Petition, the 6 th respondent who got impleaded himself filed a Counter Affidavit claiming that he is the Secretary of Eruvai Bhagawati Kshethra Yogam Trust. He contended, inter alia, that after registration of Ext.A11 Trust Deed, the temple has been administered in accordance with the rules and regulations provided in the Trust Deed. This Court in the Second Appeal judgment upheld the Trust Deed by which the temple was being administered. The temple is managed by the Managing Committee of ‘Eruvai Bhagawati Kshethra Yogam Trust’ constituted under the Trust Deed. Committee has purchased properties in the name of the deity. The annual festival of the temple is prohibited by the Executive Magistrate and the Police from 2007 apprehending breach of peace and law and order. The temple is demolished by the plaintiffs in O.S No.114/1983 and the deity is kept in Balalayam. Poojas are being performed in the Balalayam. Unless the matters are settled, annual festival cannot be conducted. 7. The 7 th and 8 th respondents are the President and Secretary of Eruvai Bhagawati Kshethra Yogam Trust who were impleaded after setting aside the original order by this Court in O.P(c) No.463/2024. They also filed Counter Affidavit with substantially same contentions as those raised by the 6 th respondent. 8. The Trial Court dismissed the Application by the impugned Order holding that the Trust and Trustees are necessary parties to the suit; that the 1 st Applicant is not properly represented; that none of the factors enumerated in Section 92 is pleaded in the case; and that the applicants are vindicating their personal rights to manage the temple. 9. I heard the learned counsel for the Applicants Sri.V.S.Babu Gireesan, the learned Senior Government Pleader Smt.Rekha.C.Nair for respondents 1 to 3, the learned Counsel for the respondents 4 and 5 Sri.V.G.Arun and the learned Counsel for the respondents 6 to 8 Sri.P.U Shailajan. 10. The learned counsel for the appellants argued that in the original order dated 06/12/2023, the Trial Court allowed the leave finding specific grounds in support of the same. While setting aside the said Order, this Court has not interfered with the said findings. The said Order was set aside on the sole reason that it was passed without allowing the pending Application for impleadment of the respondents 7 and 8. While setting aside the said Order, this Court has not interfered with the said findings. The said Order was set aside on the sole reason that it was passed without allowing the pending Application for impleadment of the respondents 7 and 8. The Trial Court ought to have followed the findings in the original order while passing the impugned order. There is prima facie case that there is no proper administration for the temple. Ext.A11 Trust Deed has not come into force. Though the temple is demolished and the deity has been placed in Balalaya for the last 12 years, the temple could not be reconstructed, and the deity could not be brought back for want of proper administration. It is also contended that no poojas and festivals are being conducted and the public at large are being suffered due to the acts of the respondents 4 and 5. Learned Counsel concluded by submitting that the conditions for granting leave under S. 92 CPC are satisfied by the Applicants and praying to grant leave setting aside the impugned order. Learned counsel relied on the decision of this Court in John T.J. and another Vs. Church of South India, Chennai and another, 2015 (4) KHC 685 in support of his arguments. 11. Learned Senior Government Pleader submitted that the respondents 1 to 3 have no interest in the dispute between the Applicants and the respondents 4 to 8, other than maintenance of law and order in temple affairs. 12. Learned Counsel for the party respondents contended that the findings in the original order have gone when it is set aside by this Court. The Trial Court re-heard the matter, considering the contentions of the party respondents and arrived at the right conclusion. The temple is not represented by anybody in the Application. Relying on the decision of the Hon’ble Supreme Court in Vidyodaya Trust Vs. Mohan Prasad R. 2008 (4) SCC 115 learned counsel contented that it is clear from the averments that the suit is filed by the Applicants for vindicating their private rights, as they claim as the Managing Committee members of the temple. The Trust and the Trustees who have been managing the temple are not made parties to the suit. As such, the suit as framed is not maintainable. The Trial Court is perfectly justified in refusing to grant leave under S. 92 CPC to the Applicants. The Trust and the Trustees who have been managing the temple are not made parties to the suit. As such, the suit as framed is not maintainable. The Trial Court is perfectly justified in refusing to grant leave under S. 92 CPC to the Applicants. 13. I have considered the rival contentions. 14. The contention of the Counsel for the appellants that the findings in the original order of the Trial Court still subsists as it was not interfered by this Court in O.P(C) No.463/2024 is unsustainable for the reason that once an order is set aside by this Court all findings therein also go and the Trial Court is free to decide the matter afresh. Merely because this Court has not expressed its opinion on the findings while setting aside the order, it could not be said that this Court has upheld the findings. The fact is that this Court has not at all considered the legality of the findings in the original order. The Order was set aside on the technical ground of violation of the principles of natural justice. 15. The main purpose of S.92 (1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. By granting leave, the Court does not enter any finding on the rights of the parties. Only prima facie case alone is considered. The following points are to be satisfied by the Court before granting an Application for leave by the Court under S.92 CPC. 1. Firstly, satisfaction regarding the existence of a Trust created for public purposes of a charitable or religious nature. 2. Secondly, prima facie satisfaction of existence of real, substantive, and existing right of the Applicants in the Trust. 3. Thirdly, the satisfaction that there is no lack of bonafides on the part of the Applicants and it is not intended to vindicate individual rights of the parties. 4. Fourthly, prima facie satisfaction of existence of either breach of trust or of necessity of direction of the Court for the administration of the Trust. 5. Lastly, the reliefs prayed for in the suit shall be for the matters covered under Clause (a) to (h) in S.92 (1) CPC. 16. 4. Fourthly, prima facie satisfaction of existence of either breach of trust or of necessity of direction of the Court for the administration of the Trust. 5. Lastly, the reliefs prayed for in the suit shall be for the matters covered under Clause (a) to (h) in S.92 (1) CPC. 16. The Applicants filed the Application under S.92 CPC claiming that the 1 st Applicant temple is a public religious trust and that there is no proper administration for the temple. At the same time, it is claimed that the Applicants 2 to 5 are the elected representatives of the General Body. The Application is silent as to how they became elected representatives. The details of the Managing Committee of the Temple are not given. In the cause title, 2 nd Applicant is shown as the Secretary, the 3 rd Applicant is shown as the President, the 4 th Applicant is shown as the Assistant Secretary and the 5 th Applicant is shown as Member of Executive Committee. But no averments are made in the Application to that effect. They contend that the Trust as per Ext.A11 Trust Deed has not come into force. Then how the Committee for management of the temple was formed is not disclosed. Their claim originated from Ext.A3 Application before the District Collector with prayer to direct the respondents therein who were the parties to the S.A.No.631/2001, to hand over the key of the temple to the public as per the decision in the Second Appeal. The prayer would indicate that there was no Managing Committee for the temple. It is practically impossible to hand over key to the public without specifying the Committee or person who represents the public. The said prayer would indicate that the Applicants are not in possession of the temple property. Pertinently, though the temple is shown as the 1 st Applicant, it is not represented by anybody. Temple cannot come forward to file the suit by its own. Temple should be represented by a natural and living person. Of course, this Court held in the Second Appeal judgment that the temple acquired the character of public temple. But that alone is not sufficient to hold that there is a Managing Committee for the administration of the temple and that the applicants 2 to 5 are the office bearers of the said Committee. Of course, this Court held in the Second Appeal judgment that the temple acquired the character of public temple. But that alone is not sufficient to hold that there is a Managing Committee for the administration of the temple and that the applicants 2 to 5 are the office bearers of the said Committee. The specific pleading in the Application is that the Applicants 2 to 5 are having real and substantial interest in the management affairs of the public temple in which Applicants 2 to 5 who are the elected representatives of the General Body of the 1 st Applicant. When there is no evidence to show that the Applicants 2 to 5 are the elected representatives of the General Body of the 1 st Applicant, their claim as having real and substantial interest in the management affairs of the public temple on the basis of such status fails. The learned counsel for the appellants pointed out that large number of persons from general public are signatories in Ext.A3 Application before the District Collector along with the 2 nd applicant. True, Ext.A3 shows that large number of people are interested in the affairs of the temple. But the claim of the Applicants for leave has to be considered in the light of the averments in the Application. The Applicants 2 to 5 have no case that they are the devotees of the temple and hence they have real and substantial interest in the management affairs of the public temple. It is true that the Applicants 3 to 5 are parties and signatories to Ext.A11 Trust Deed, but they do not claim interest on the basis of the Trust Deed. On the other hand, their specific contention is that the Trust has not come into effect. Hence there could not be any prima facie finding that the applicants are having real, substantive and existing right in the temple and hence the Application would fail on this ground. 17. In the decision of the Hon’ble Supreme Court in Vidyodaya Trust Vs. On the other hand, their specific contention is that the Trust has not come into effect. Hence there could not be any prima facie finding that the applicants are having real, substantive and existing right in the temple and hence the Application would fail on this ground. 17. In the decision of the Hon’ble Supreme Court in Vidyodaya Trust Vs. Mohan Prasad R. 2008 (4) SCC 115 cited by the counsel for the respondents 6 to 8, it is held that to find out whether the suit is for vindicating public rights, there is necessity to go beyond the relief and focus on the purpose for which the suit was filed and that it is the object and purpose of the suit and not the relief which is material. The Hon’ble Supreme Court cautioned that the Court has to be careful to eliminate the possibility of a suit being laid against the Trusts under S.92 CPC by persons whose activities are not for protection of the interests of public trust. At the same time, it is held that there is no hard and fast rule to find out whether the real purpose of the suit was vindicating public rights or private rights. Going by the pleadings and reliefs sought for by the Applicants in the suit, it could not be said that the Applicants have instituted the proceeding vindicating their personal rights to manage the temple. They have not made any prayer to confer management of the temple on them. Hence, the finding of the Trial Court in the impugned Order that the applicants are vindicating their personal rights to manage the temple is not correct and the same is set aside. Admittedly, the temple was demolished 12 years back and the deity is shifted to Balalaya and even after disposal of the Second Appeal in the year 2019, no steps are taken to construct the temple and to shift the deity back to the temple. It shows that there is no proper management for the temple. The interest of the deity is not protected. It is admitted by both sides that the temple property has been remaining neglected on account of the disputes between the rival groups. It shows that there is no proper management for the temple. The interest of the deity is not protected. It is admitted by both sides that the temple property has been remaining neglected on account of the disputes between the rival groups. Even though, the respondents 6 to 8 claim that there is a Committee to manage the temple constituted as per Ext.A11 Trust Deed, the respondents 6 to 8 could not produce any evidence in support of the same, for prima facie satisfaction. The Application for Leave and the Plaint is dated 01/01/2022. Nothing is produced and marked before the Trial Court to prove that the Committee was existing as on the date of Application. The respondents 6 to 8 could not prove the existence of office bearers to manage the temple. They have not stated when the last election was conducted before the date of Application for leave. Along with their Counter Affidavit in this Court, the respondents 7 and 8 produced Annexure R7(k) Notice for General Body dated 18/12/2022 proposing to hold General Body on 08/01/2023 and the Ext.R7(j) Minutes of the General Body dated 08/01/2023. These documents were not seen produced before the Trial Court and hence this Court cannot consider these documents. Even if these documents are taken into consideration, it would not help the party respondents to prove that the Managing Committee was existing as on the date of filing of Application for leave, as these documents are dated subsequent to the filing of Application for leave. The non production of such records relating to the years previous to the Application for leave would prima facie prove that no Managing Committee was existing as on the date of filing of Application for leave. The respondents 6 to 8 could not explain the steps taken by them to construct the temple and place the idol. No evidence was produced in this regard before the Trial Court. The fate of an Application for leave under S. 92 CPC depends on the pleadings from the side of the applicants and the materials produced, but there is nothing wrong in considering the averments in the pleadings of the respondents by this Court to arrive at a prima facie finding. I am of the prima facie view that there is necessity of direction of the Court for the administration. I am of the prima facie view that there is necessity of direction of the Court for the administration. But that alone would not enable this Court to allow the Application for leave if the Application is not properly framed to satisfy other conditions enumerated in Section 92 CPC. 18. I have one more reason to hold that the Application is not properly framed. As per the averments in the Application for leave, the temple is shown as the public religious trust. The Application is filed with respect to the temple as a Trust. Of course, in Ext.A1 Second Appeal judgment, this Court has found the temple is a public temple. But the Trust by name ‘Eruvai Bhagavathy Kshethra Yogam Trust’ was created as per the decision of the General Body on 8/08/1982. There is a Byelaw for the said Trust passed in the General Body. Ext.A11 Trust Deed is admittedly registered. The Applicants 3 to 5 are parties to the Trust Deed. Ext.A11 Trust Deed provides democratic arrangement to elect the Committee for management of the temple in substitution of the existing arrangement. There are several findings in Ext.A1 Second Appeal judgment with respect to the existence of a Committee for management prior to Ext.A11 Trust Deed. The status and authority of Kshethra Yogam and the elected Committee headed by its President in the year 1964 is found to be admitted by the co-owners claiming title. It is held that there are so many documents showing subsequent acquisition of immovable properties in the name of deity by the Kshethra Yogam and the elected Committee thereof headed by its President. It is held that in all these documents, the status and authority of Kshethra Yogam and the elected Committee headed by its President to represent the deity was well recognized and admitted from the year 1964. It is held that in all these documents, the status and authority of Kshethra Yogam and the elected Committee headed by its President to represent the deity was well recognized and admitted from the year 1964. This Court specifically held that at least from the year 1967 onward, the Kshethra Yogam through its elected Committee was managing the entire affairs of the temple in exclusion of the person who claims co-ownership right and also acquired several immovable properties in name of deity, finding that Ext.B20, B21, B22 are the minutes commencing from the year 1967 to 1982 of the Kshethra Yogam dealing with the affairs of the temple; that the conduct of annual election of office bearers and formation of the committee is also well evident from Ext.B20, B21 and B22; that there are corresponding entries regarding the annual general body of a section of people and election of committee and office bearers; that the accounts maintained for the said period, Ext.B23 was also produced from the custody of proper persons right from the year 1965 onward and are of ancient in character and that the three special rituals - ‘erakki pooja’, ‘thattu pooja’ and ‘dik bhali’ and its observance was also found a place in the minutes and accounts for the respective period. This Court concluded by holding that the evidence tendered by the defendants as Exts.B2 to B9 and Exts.B20 to B 23 would amply show that the temple in question was managed by a section of people representing the deity and thereby acquired the character of a public temple under the authority of the public, a section of people, represented through its committee and President. The Applicants did not plead the system of managing the temple before and after the creation of Ext.A11 Trust Deed. The application is vague with respect to those details. 19. On going through Ext.A11, it is seen that when the General Body felt that the existing arrangement for management of the temple is insufficient, a decision was taken on 08/08/1982 to create a Trust by name ‘Eruvai Bhagavathy Kshethra Yogam Trust’ for the management of temple. It appears that the implementation of Ext.A11 Trust Deed was delayed on account of the institution of O.S.No.114/1983 claiming title and possession of the temple property and pendency of the litigation till 2019. It appears that the implementation of Ext.A11 Trust Deed was delayed on account of the institution of O.S.No.114/1983 claiming title and possession of the temple property and pendency of the litigation till 2019. When a Trust is created to manage the temple and if there is mismanagement in the Trust, suit is to be instituted with respect to the said Trust. A scheme cannot be framed for the management of the temple ignoring Ext.A11 Trust Deed created as per General body decision for forming a Trust for the management of the temple. In an Application for leave is filed with respect to the said Trust, the Trust and the Trustees are necessary parties. Of course, if the arrangements made in the Trust Deed are not sufficient for the management of the temple, in such case also there is necessity of direction of the Court for the administration of temple. But in the case on hand the Applicants do not have such a case. The mismanagement of the Trust created as per Ext.A11 is a matter to be considered in an Application for leave under S. 92 CPC with respect to the affairs of the said Trust. In the present Application for leave with respect to the temple, the necessity of court direction for the administration of the Trust created as per Ext.A11 cannot be considered. The Applicants 2 to 5 are given liberty to file proper Application for leave with respect to the Trust created as per Ext.A11. 20. Accordingly, this Appeal is dismissed without costs, but reserving the liberty reserved in favour of the Applicants in the preceding paragraph.