Kerala High Court · 2009

WPC.31508/082its premises, and also questioning the permission given to thatcommittee to organise such a function by the 1st and 2nddefendants, the petitioners in the writ petition. Thecontroversy involved in the suit related to the conducting ofPoonthanam Sahityolsavam by the 3rd defendant, thecommittee, in the plaint property as recognised by the 1st and2nd defendants, Guruvayur Devaswom and its Chairman.3. After the presentation of the suit, conflicting anddivergent stand was taken by the 1st and 2nd defendants to thesuit claim. With the suit, the plaintiff has filed an applicationfor interim injunction to restrain the 1st and 2nd defendantsfrom transferring the right to conduct and organiseSahityolsavam in the plaint property to the 3rd defendant orany other person, otherwise than organising of such functionsdirectly by the Guruvayur Devaswom. Ext.P1 is the copy ofthe application. The 1st respondent filed objections to thatapplication, in which, among other contentions, themaintainability of the suit and the application was alsoquestioned contending that it is barred by the GuruvayurDewaswom Act and Rules. Ext.P2 is the copy of that objection. WPC.31508/083While Ext.P1 application for injunction was pendingconsideration, the 1st defendant, Guruvayur Dewaswom filed astatement of undertaking before the court that theSahityolsavam and all functions connected with PoonthanamIllom will be exclusively conducted by the Dewaswom directly.Recording that statement of undertaking, the 1st defendantrequested for closing the further proceedings in theinterlocutory application. In the statement of undertaking, itwas further stated that the Guruvayur Dewaswom ManagingCommittee, after deliberation, took the decision to conduct thefestivals in Poonthanam Illom directly to secure communalharmony and also to respect the sentiments of thePoonthanam devotees. Ext.P3 is the copy of that statement ofundertaking. Evidently, in view of the undertaking given,further proceedings in Ext.P1 interlocutory application forinjunction were not pursued. Subsequently, the counselappearing for the 1st and 2nd defendants filed a statementbefore the court requesting for disposing the suit on the basisof the statement furnished to the interlocutory application forinjunction stating that the defendants had no furtherstatement to the suit claim. However, later the defendants WPC.31508/084filed a written statement with a petition to receive thatstatement, resisting the suit claim raising various contentionsincluding the challenge against the maintainability of the suit.While the acceptance of the written statement, which was filedbeyond the time fixed, was pending enquiry, the defendants 1and 2 filed a joint statement stating that the contentions takenin the written statement were against the instructions givenby the Guruvayur Dewaswom, and as such, they were notwilling to own the contradictory contentions of the writtenstatement which were against the statement earlier made tothe I.A. for injunction. Ext.P5 is that joint statement bydefendants 1 and 2. In Ext.P5 statement, these defendantsstating that they are withdrawing the contentions of thewritten statement, requested for decreeing the suit. Again,defendants 1 and 2 along with an affidavit sworn to by the 2nddefendant, Chairman of the Guruvayoor DewaswomCommittee filed another application reiterating thecontentions in their written statement challenging themaintainability of the suit and resisting the suit claim onvarious grounds, requested the court to formulate apreliminary issue as to the maintainability of the suit before WPC.31508/085proceeding with the trial of the case. Ext.P6 is the copy ofthat application. The learned Munsiff, after hearing both sidesdismissed that application vide Ext.P7 order. Propriety andcorrectness of Ext.P7 order is challenged in the writ petitioninvoking the supervisory jurisdiction vested with this Courtunder Article 227 of the Constitution of India. 4. I heard the counsel on both sides. The learnedcounsel for the petitioners inviting my attention to theGuruvayur Dewaswom Act, 1978 contended that by virtue ofSection 29 of that Act, no suit or proceedings will lie againstthe Dewaswom and there is an ouster of the jurisdiction of thecivil Court in entertaining a suit as involved in the presentcase. So much so, whatever be the stand of the defendantswith respect to the interlocutory application for injunction bythe plaintiff and also with regard to the written statement filedresisting the suit claim, but not pursued later as the petitionfiled to receive such written statement was later not pressedupon, according to the learned counsel, the defendants canseek for framing of the preliminary issue as regards thejurisdiction of the court to entertain the suit. Settling of WPC.31508/086issues need not be on the basis of the contentions taken in thewritten statement, but, on other materials also under Order 14Rule 3, 4 and 5 of the Code of Civil Procedure, submits thecounsel, placing reliance on S.Kalimuthu v. M.Kanji (1993(2) KLJ 909). Reference was also made to the decisionrendered by this Court in Krishnan v. GuruvayurDewaswom Managing Committee (1979 KLT 350 (F.B.))and Narayanan Namboodiri and others v. State ofKerala and others (1985 KLT 629 (F.B.)), both dealingwith the Guruvayur Dewaswom Act, the former with referenceto Guruvayur Dewaswom Act, 1971, and the latter withreference to Guruyaur Dewaswom Act, 1978, to buttress theproposition that there is a judicial recognition by this Court asto the ouster of the jurisdiction of the civil court in respect ofany matter covered under Section 29 of the GuruvayurDewaswom Act, 1978. The counsel for the 3rd respondentsupported the stand canvassed by the learned counsel for thepetitioners as above. On the otherhand, the learned counselappearing for the 1st respondent contended that the standtaken by the 1st and 2nd defendants challenging themaintainability of the suit claim after not pressing the petition WPC.31508/087filed to receive the written statement in which a similarcontention was taken and also after requesting the court todecree the suit in terms of the plaint by filing a statement, isunworthy of any merit and deserves outright rejection. It isfurther contended by the counsel that there is no explicitouster of the civil court's jurisdiction as was canvassed by thelearned counsel for the petitioners under Section 29 of theGuruvayur Dewaswom Act, 1978. The learned counsel furthersubmitted that Ext.P7 order passed by the court below in thegiven facts of the case does not warrant any interference bythis Court.5. The citadel of the challenge pressed into service toassail Ext.P7 order contending that the suit is barred by theprovisions of the Guruvayur Dewaswom Act and Rules is basedon the statement made by the 1st respondent in Ext.P2 inanswer to Ext.P1 interlocutory application, wherein, amongother contentions, in paragraph 2, it has been stated that “theI.A. as well as the suit itself are against the provisionscontained in the Guruvayur Dewaswom Act and Rules”. Nofinal orders have been passed on Ext.P1 application, and so WPC.31508/088much so, Ext.P2 counter statement has still relevance and thestatement made thereunder questioning the jurisdiction of thecourt to entertain the suit constitute material as contemplatedunder Order 14 Rules 3, 4 and 5 of the CPC, is the argumentof the learned counsel that Ext.P6 application by thedefendants for framing a preliminary issue on the question ofjurisdiction has merit, and it is entertainable. I am afraid,whatever be the challenges raised in Ext.P2 statementquestioning the jurisdiction of the suit, it cannot have anysignificance or relevance when the defendants have not onlyfiled an undertaking that the Poonthanam Sahityolsavam willbe conducted directly by the Dewaswom with their request tothe court to close the proceedings in that I.A. Obviously, onExt.P3 undertaking given by the 1st respondent GuruvayurDewaswom, no further orders on Ext.P1 I.A. moved by theplaintiff was warranted, and, whatever objections taken underExt.P2 by the Dewaswom against that I.A. no longer survivedfor consideration. Of course, Ext.P2 objection to Ext.P1 I.A.formed part of the records, but, does it constitute a materialfrom which an issue can be framed as under Order 14 Rule 3of the CPC, is the question emerging for consideration. That WPC.31508/089question cannot be considered ignoring what transpiredduring the course of the suit from time to time. Objections toExt.P1 application by way of Ext.P2 counter were not only notpressed, but, practically withdrawn under Ext.P3 statement.After presenting a written statement raising contentionsdisputing the suit claim seeking its acceptance with a petitioncondoning the delay in filing that statement, the defendants 1and 2 filed a joint statement dated 18.2.2008 stating that thecontentions taken in the written statement were against theinstructions given by the Guruvayur Dewaswom, and thedefendants are not willing to own such contentions whichwere contradictory to the stand taken to Ext.P1 application.Obviously, Ext.P3 statement withdrawing the objection inExt.P2 counter was referred in the above joint statement whenthese defendants stated that the contentions taken in thewritten statement were contradictory to the stand taken bythem to Ext.P1 application. Ext.P5 is the copy of the jointstatement so filed by the defendants, in which, it is seen,these defendants not only sought for withdrawal of thecontentions of the written statement, but, wanted the court todecree the suit taking note of the withdrawal of their WPC.31508/0810contentions. Ext.P5 would further disclose that with the sealof the Guruvayur Dewaswom Managing Committee, the1st defendant had subscribed his signature followed by theChairman of the Dewaswom subscribing his signature as the2nd defendant in the suit. Petition filed to receive the writtenstatement on the basis of Ext.P5 statement, it is not disputed,was dismissed by the court, with the result, there is no writtenstatement from those defendants to the suit. RepudiatingExt.P3 statement filed by the 1st defendant and joint statementfiled by both these defendants as Exts.P4 and P5, referred toearlier, withdrawing whatever contentions these defendantshad to the suit claim and after making a request to the courtto decree the suit, these defendants filed Ext.P6 applicationsupporting by an affidavit by the 2nd defendant, Chairman ofthe Guruvayur Dewaswom Managing Committee reiteratingthe contentions canvassed in their written statementchallenging the maintainability of the suit and requested thecourt to consider its jurisdiction to entertain the suit.Evidently, so far as this statutory authority, GuruvayurDewaswom, 1st defendant and its Chairman, the 2nd defendantare concerned, consistency is not a virtue, as for them WPC.31508/0811undertaking given and representations made before a court oflaw have little value, liable to be ignored and always open toalteration. Taking divergent and conflicting stand on an issuemay be a virtue for this statutory authority, Dewaswom andits Chairman, but, it cannot be countenanced nor approved bya court of law. The audacity of the 2nd defendant to file anaffidavit in respect of Ext.P6 application after he had filed ajoint statement with the 1st defendant withdrawing whatevercontentions to the suit requesting the court to pass a decree interms of the suit is only to be deprecated. There is no meritin the argument of the learned counsel for the petitioner thatthe objection raised in Ext.P2 statement raising a challenge asto the jurisdiction of the court that the suit is barred under theGuruvayur Dewaswom Act is a material from which apreliminary issue can be raised as regards the jurisdiction ofthe court to entertain the suit. What are the materials fromwhich an issue can be raised is covered by Order 14 Rule 3 ofthe CPC. The materials relied by the counsel no longersurvived for consideration after Ext.P2 objection were notpressed upon. Further, the defendants themselves requestedfor decreeing the suit in terms of the plaint not pressing the WPC.31508/0812petition filed with their written statement resulting indiscarding the written statement presented as well. Referencemade to the decision in S.Kalimuthu v. M.Kanji (1993 (2)KLJ 909) by the learned counsel for the petitioner has nosignificance or value on the question posed for considerationin the petition. There is also no merit in the argument thatunder Section 29 of the Guruvayur Dewaswom Act, 1978,there is a complete ouster of the jurisdiction of the civil courtto entertain any suit or proceedings in relation to GuruvayurDewaswom. That section only provides for protection ofaction taken in good faith by the Government, Dewaswom andauthorities referred to, but, any act which is not taken in goodfaith and tainted in mala fide and violation of the Act andrules, needless to point out, can be questioned by way of a suitbefore a civil court. That is all the more clear where noalternative efficacious forum is provided by the statute tochallenge a mala fide act in violation of the statute, if socommitted by the Government or the Commissioner or thecommittee of any member of the Dewaswom Committee. Inthe decision, Krishnan v. Guruvayur DewaswomManaging Committee (1979 KLT 350 (F.B.)), the WPC.31508/0813provision under the Guruyaur Dewaswom Act, 1971, barringthe jurisdiction of the civil court was struck down asunconstitutional, but, in the later decision NarayananNamboodiri and others v. State of Kerala and others(1985 KLT 629 (F.B.)), so far as the new Act, GuruvayurDewaswom Act, 1978, it was held not so, the argumentcanvassed by the learned counsel for the petitioners tobuttress the proposition that Section 29 of the GuruvayurDewaswom Act bars jurisdiction of the civil court, I find hasno basis at all. In the later decision Narayanan Namboodiriand others v. State of Kerala and others (1985 KLT 629(F.B.)), it is noticed that Section 32 interdicting anychallenge, any notification, order or decision made by theGovernment or the Commissioner otherwise than providedunder the Act was struck down as unconstitutional. That itselfis indicative that jurisdiction of the court to impeach anymala fide action of the Government or the Commissioner issafeguarded and not ousted either explicitly or implicitly byany of the provisions of the Act. The issue emerging forconsideration in the present case is whether defendants 1 and2, the Dewaswom and its Chairman, after having withdrawn WPC.31508/0814whatever contentions to the suit and having made a request tothe court to decree the suit not once, but, more than thrice,can turn around and ask the court to proceed with anadjudication on the question of jurisdiction to entertain thesuit. The learned Munsiff was perfectly justified in holdingthat Ext.P6 application moved by the defendants is notentertainable, and it was rightly and correctly dismissed byExt.P7 order. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGEprp