Kerala High Court
Travancore Devaswom Board vs Haridasa Sarma on 24 February, 2022
OP(C).359/21 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
OP(C) NO. 359 OF 2021
AGAINST THE ORDER/JUDGMENT IN CMA 53/2019 OF PRINCIPAL SUB
COURT,ATTINGAL
OS 209/2018 OF MUNSIFF COURT,VARKALA
PETITIONER/S:
1 TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY,OFFICE OF TDB,
DEVASWOM BOARD JUNCTION,NANTHANCODU,
KOWADIAR,THIRUVANANTHAPURAM.
2 SUB GROUP OFFICER,
KAPPIL BHAGAVATHY TEMPLE,TDB KAPPIL SUB GROUP,
KAPPIL DESOM,EDAVA VILLAGE,VARKALA TALUK.
BY ADV G.SANTHOSH KUMAR (P).
RESPONDENT/S:
1 HARIDASA SARMA
S/O GOPALAKRISHNA POTTI,G.N.NILAYAM,
VENKULAM DESOM,EDAVA VILLAGE,VARKALA TALUK.
2 SUDHARMANI,
W/O REGHUNATHA SARMA,G.N.VIHAR,VENKULAM DESOM,
EDAVA VILLAGE,VARKALA TALUK. (DIED)
3 THE ADVISORY COMMITTEE,
KAPPIL BHAGAVATHY TEMPLE,REPRESENTED BY THE
SECRETARY,KAPPIL DESOM,EDAVA VILLAGE,VARKALA TALUK.
BY ADV K.S.AJAYAGHOSH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2021,
THE COURT ON 24.2.2022 DELIVERED THE FOLLOWING:
OP(C).359/21 2
V.G.ARUN, J.
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O.P(C).No. 359 of 2021
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Dated this the 24th day of February, 2022
JUDGMENT
Petitioners are the defendants in O.S.No.209 of 2018 on the files of the
Munsiff's Court, Varkala. The suit is filed by respondents 1 and 2 seeking
permanent prohibitory injunction restraining the petitioners from trespassing
upon plaint A and B schedule properties and from obstructing plaint C
schedule pathway. The averments in the plaint are to the following effect;
Plaint A schedule property belongs to the 1st plaintiff and B schedule, to
the 2nd plaintiff. Plaint C schedule pathway is the only way for ingress and
egress to plaint A and B schedule properties and is being used by the
plaintiffs and other persons in the locality from time immemorial. Plaint A and
B schedule along with other properties belonged to the mother of the plaintiffs
and there was only one access to the entire property. After acquiring title over
their properties, the plaintiffs put up separate gates. The defendants, who are
having no title, possession or right over plaint C schedule pathway, attempted
to obstruct the way during the year 2006, compelling the plaintiffs' elder
brother to approach the Sub Divisional Magistrate under Section 133 Cr.P.C.
The said complaint was allowed on 23.7.2009 directing the defendants not to
obstruct the pathway in future. On 9.4.2018, defendants 2 and 3 along with
their henchmen tried to obstruct the ingress and egress to the plaintiffs'
property through plaint C schedule pathway. Hence, the suit.
2. Along with the suit, the plaintiffs moved an application for injunction.
The defendants/petitioners herein filed an objection, challeing the
maintainability of the suit and contending that plaint C schedule is the
pathway used by the devotees visiting the Kappil Siva Temple and is part of
the property belonging to the Kappil Bhagavathi Temple.
3. The learned Munsiff, after detailed consideration, passed Exhibit P5
order restraining the defendants and their men from trespassing into plaint A
and B schedule properties or causing any obstruction to plaint C schedule
pathway, including the use and enjoyment of C schedule by the plaintiffs.
Thereafter, the plaintiffs filed an application seeking interim mandatory
injunction. It was alleged that, flouting Exhibit P5 order, defendants 2 to 4,
with the consent of the 1st respondent, had constructed a compound wall in
front of the gates of plaint A and B schedule properties and had also placed
an obstruction at the end of the B schedule, preventing access to plaint C
schedule pathway. After careful scrutiny of the report filed by the Advocate
Commissioner after inspecting the properties on the next day of Exhibit P5
injunction order, the learned Munsiff found substance in the allegation raised
by the plaintiffs. Accordingly, Exhibit P7 order was passed requiring the
defendants to remove the obstructions within 30 days and on their failing to
abide by the direction, permitting the plaintiffs to get the same removed
through due process of law by making an application to depute an Advocate
Commissioner to execute the work. Challenging Exhibit P7 order, the
petitioners filed C.M.A.No.25 of 2019 before the Sub Court, Attingal. Much
later, CMA.No.53 of 2019 was filed challenging Exhibit P5 order of injunction.
Finding C.M.A.No.53 of 2019 to have been filed with an inordinate delay and
as an afterthought, the appellate court dismissed the application for
condonation of delay and consequently, the appeal itself, by Exhibit P8 order
dated 2.6.2020. C.M.A.No.25 of 2019 was considered on merits and
dismissed on the same day under Exhibit P9 judgment.
4. As the defendants had failed to comply with the order directing
removal of obstruction, the plaintiffs had moved an application (I.A.No.990 of
2019) for getting the obstruction removed by depositing an Advocate
Commissioner. That application was allowed by Ext.R1(a) order dated
3.4.2019. As Ext.R1(a) order was not being implemented, despite dismissal of
CMA Nos.25 and 53 of 2019, respondents 1 and 2 moved O.P.(C)No.1938 of
2020 before this Court. By Ext.R1(b) judgment dated 14.01.2021, the trial
court was directed to give appropriate direction for ensuring compliance of
Ext.R1(a) order without delay. Accordingly, Ext.P11 proceedings dated
01.02.2021 were issued by the trial court directing the DySP, Attingal to
provide sufficient police protection to the Advocate Commissioner for
executing the order. This original petition is filed thereafter, seeking to set
aside Ext.P5 order in I.A.No.1362 of 2018, Ext.P7 order in I.A.No.1690 of
2018 in O.S.No.209 of 2018, Exhibit P8 order in I.A.No.1480 of 2019 in CMA
No.53 of 2019 and Exhibit P9 judgment in CMA No.25 of 2019. The further
prayer is to direct the Munsiff's Court, Varkala to consider the matter afresh in
the light of Exhibit P10 Commission report.
5. The prime contention urged by the learned Counsel for the
petitioners is that C schedule pathway is not a public way and is part of
temple property. According to the learned Counsel it is the pradakshina vazhi
of the temple and several sub-deities of the temple are consecrated in the
property. It is contended that the protection of assets of temples and religious
institutions is not a matter for consideration by the courts in its ordinary
jurisdiction. It is contended that the appellate court committed a grave
illegality in dismissing I.A.No.1480 of 2019 in CMA No.25 of 2019, seeking
condonation of delay in filing the appeal. Reliance is placed on Ext.P10 report
of the Advocate Commissioner to contend that the allegation regarding
violation of the injunction order is false.
6. Learned Counsel for the first respondent contended that, other than
repeatedly asserting that C schedule is part of temple property, no steps have
so far been taken by the petitioners to substantiate the averment. On the
other hand, the reports of the Advocate Commissioner and the Order of the
Sub Divisional Magistrate (Ext.R1(c)) would show the existence of C schedule
as a public pathway. It is contended that the petitioners are not entitled for
any relief, since they had refused to abide by the orders of the trial court till
Ext.P11 proceedings was passed in terms of the direction in Ext.R1(b)
judgment. It is submitted that absolutely no acceptable reason was stated for
filing CMA No.53 of 2019 with a delay of 302 days. Hence, the appellate court
was fully justified in dismissing I.A.No.1480 of 2019 and consequently, the
appeal itself.
7. The undisputed facts of the case reveals that the order of prohibitory
injunction was passed in I.A.No.1362 of 2018 on 07.11.2018. Thereafter,
finding prima facie substance in the allegation that the petitioners had flouted
the order, the trial court passed Ext.P7 order in I.A.No.1690 of 2018 on
13.02.2019. The petitioners challenged EXt.P7 order in CMA No.25 of 2019
within time. Much later, Ext.P5 order of temporary injunction was challenged
in C.M.A No.53 of 2019, that too, only after the respondents raised objection
in C.M.A No.25 of 2019 regarding maintainability of the appeal for reason of
the petitioners not having failed to challenge the original order (EXt.P5) in
I.A.No.1362 of 2019. The only reason stated by the petitioners for the delay in
302 days in filing the appeal was the transfer of the Sub Group Officer
handling the case. The appellate court refused to accept the explanation,
finding that the appellants had all throughout been keenly contesting the suit
before the trial court and had filed CMA No.25 of 2019 within time. I find no
reason to differ from the said finding.
8. The sequence of events clearly indicates that the petitioners had not
only refused to abide by the directions of the trial court, but had deliberately
procrastinated the matter till the issuance of Ext.P11 proceedings. It is also
pertinent to note that Ext.R1(a) order appointing Advocate Commissioner to
remove the obstructions is not challenged. Ext.P11 proceedings being
consequential to Ext.R1(a) order, the independent challenge against Ext.P11
cannot be sustained. Moreover, the orders/judgment in CMA No.53 and 25
of 2019 passed way back on 02.06.2020 is challenged after almost 8 months.
The casual manner in which the suit is being contested and the orders
challenged, dissuades this Court from exercising the supervisory jurisdiction
under Article 227 of the Constitution of India.
In the result, the original petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 359/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN
O.S.NO.209/2018 PENDING ON THE FILES OF
MUNSIFF'S COURT,VARKALA.
EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT ALONG
WITH THE SKETCH.
EXHIBIT P3 TRUE COPY OF THE OBJECTION PREFERRED BY
THE PETITIONER'S HEREIN AGAINST THE
COMMISSION REPORT
EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE PETITIONERS HEREIN IN
O.S.NO.209/2018 ON THE FILES OF MUNSIFF'S
COURT,VARKALA.
EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A.1362/2018
IN O.S.N0.209/2018 PASSED BY MUNSIFF'S
COURT,VARKALA.
EXHIBIT P6 TRUE COPY OF THE OBJECTION PREFERRED BY
THE PETITIONERS AGAINST I.A.NO.1690/2018
IN O.S.NO.209/2018 PASSED BY THE
MUNSIFF'S COURT,VARKALA.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13/02/2019
IN I.A.NO.1690/2018 IN O.S.NO.209/2018
PASSED BY THE MUNSIFF'S COURT,VARKALA.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 02/06/2020
IN I.A.NO.1480/2019 IN C.M.A.NO.53/2019
ON THE FILES OF SUB COURT,ATTINGAL.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 02/06/2020
IN C.M.A.NO.25/2019 ON THE FILES OF SUB
COURT,ATTINGAL.
EXHIBIT P10 TRUE COPY OF THE COMMISSION REPORT IN
I.A.2237/2019 AND I.A.NO.3620/2019 IN
O.S.NO.209/2018 SUBMITTED BEFORE THE
MUNSIFF'S COURT,VARKALA.
EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS DATED
01/02/2021 IN O.S.NO.209/2018 ON THE
FILES OF MUNSIFF'S COURT,VARKALA.
Exhibit P12 TRUE COPY OF THE ORDER DATED 12/9/2012 IN
DBP NO.136/2011 OF THIS HON'BLE COURT
RESPONDENT EXHIBITS
EXHIBIT R1(a) A TRUE COPY OF THE ORDER DATED 03/04/2019
OF THE HON'BLE MUNISIFF'S COURT,
VARKKALA.
EXHIBIT R1(b) A TRUE COPY OF THE JUDGMENT DATED
14/01/2021 IN OP(C).NO.1938/2020 OF HIGH
COURT OF KERALA.
EXHIBIT R1(c) A TRUE COPY OF THE ORDER DATED 23/07/2009
IN MC.NO.191/2006 OF THE SUB DIVISIONAL
MAGISTRATE, THIRUVANANTHAPURAM.
EXHIBIT R1(d) A TRUE COPY OF THE ORDER DATED 13/08/2012
IN CRL.MP. NO.2255/2012 IN
CRL.RP.NO.66/2011 OF THE SESSIONS COURT,
THIRUVANANTHAPURAM.
EXHIBIT R1(e) A TRUE COPY OF THE JUDGMENT DATED
04/03/2020 IN OP(C).NO.644/2020 OF HIGH
COURT OF KERALA.
