P.R. Murlidharan & Ors Vs. Swami Dharmananda
Theertha Padar & Ors
[2006] Insc 126 (10 March 2006)
S.B. Sinha
(Arising
out of SLP (C) No. 22268 of 2004) S.B. SINHA, J.
Leave granted.
Application
for impleadment is allowed.
The
respondent herein claimed himself to be a Sansyasi in
the tradition of "Sree Chattambi
Swamy Thiruvadikal"
and Madathipathi and Sthiradhyakshan
of Parama Bhattara Gurukula Seva Sangham,
popularly known as "Vadayampadi Asharamam". The respondent filed a suit in the Court
of Munsiff, Kolencherry
being O.S. No. 71 of 2000 for a declaration that he was entitled to continue in
the said capacity and he was not allowed to discharge his duties attached to
the said office in terms of the purported order dated 20.1.1996 of Kailasanatha Theertha Padar. The said suit was dismissed for default. An
application for restoration of the said suit was filed which was also
dismissed. It is not in dispute that the appellants herein had raised a
contention that the general body of the Seva Sangham had met on 7.1.2001 and resolved to amend the deed
of trust so as to abolish the post of Sthiradhayakshan
and to vest his powers and duties in the President of the Seva
Sangham. Kailasanatha
allegedly served as Sthiradhayakshan since 1996
onwards. It was stated that while he was on pilgrimage, the first respondent
claimed himself to have taken over the office of Madathipathi
and Sthiradhyakshan of the Ashram, although he had
allegedly no qualification therefor. It is not in
dispute that in relation to the affairs of the trust a suit being O.S. No. 30
of 2002 is pending in the Court of Munsif, Kolencherry.
The
said suit has been filed by one G. Parameswaran Nair,
founder member of the Ashram questioning the aforementioned purported
resolution dated 7.1.2001. An interlocutory application has been filed by Brahmasree Kailasa Nadananda Teertha Padar for getting himself impleaded
as a party. The said applicant in his impleadment
application alleges that as per the bye- laws, he had admittedly been serving
in the said capacity since 1995 and, thus, in law continues to be the Madathipathi and Sthiradhyakshan.
Indisputably,
the said applicant as also the first respondent herein are
parties in the suit being O.S. No. 30 of 2002.
Thought
the suit filed by the first respondent was dismissed, he filed a writ petition
before the Kerala High Court at Ernakulam
praying for police protection which was marked as WP (C) No.16047/04. A
Division Bench of the said High Court went into the question as to whether the
first respondent was entitled to hold the office of Madathipathi
and Sthiradhyakshan for the purpose of issuing an
appropriate direction as regard grant of police protection. The High Court
opined that 'the State and the police officials have got a legal obligations to
give protection to the life and properties of the appellant upon arriving at a
finding of fact that he was entitled to hold the said office. The High Court
proceeded to determine the said purported question in the light of Article 21
of the Constitution of India and opined:
"Respondent
5 and 6 have not given adequate and effective police
protection in spite of repeated requests which only paved the way of the
contesting respondents and others to take law into their hands and act contrary
to the terms of the trust deed. Such being the conduct of the respondents,
their assertion that Ext. P3 is fabricated by the petitioner cannot be
believed. Going by the facts and circumstances of the case, and on going
through the materials placed before us, we are inclined to accept the averment
made by the petitioner that he is Sthiradhyakshan and
Madathipathy of the Ashramam."
It was directed:
"We
have therefore no hesitation to allow this writ petition giving direction to
respondent 5 and 6 to give adequate and effective police protection to
safeguard the interest of the petitioner being the Sthiradhyakshan
and Madathipathy of the Vadayampadi
Ashramam.
Petitioner
be given effective police protection so as to discharge the function as Sthiradhyakshan and Madathipathy
as per Ext. P1 trust deed for his peaceful residence in the Ashramam"
Aggrieved thereby the Appellant is before us.
Mr.
T.L.V. Iyer, learned senior counsel appearing on behalf of the
petitioner and Mr. P Krishnamurthy, learned senior counsel appearing on behalf
of the applicant in the impleadment application
submitted that the High Court exceeded its jurisdiction in doing so.
Mr. K.
Radhakrishnan, learned senior counsel appearing on
behalf of the respondent no.1, on the other hand, took us through various
documents referred to by the High Court in its impugned judgment for the
purpose of showing that having regard to the resolution dated 20.1.1996, the
respondent no.1 was entitled to function in the capacity of Madathipathi
and Sthiradhyakshan. Our attention was also drawn to
the fact that the first respondent was ordained therefor
and, thus, he could not be removed from the post of Sthiradhyakshan
and Madathipathy as per the terms of the trust.
The
question is a contentious one. Construction of the said trust and the rights
and obligations thereunder were in question. The
first respondent filed a suit in that behalf. The said suit was dismissed. In
terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would not
be maintainable at his instance. We have noticed herein before that another
suit being O.S. No. 30 of 2002 is pending in the court of the Munsif. The High Court, despite noticing the said fact,
sought to usurp the jurisdiction of the civil court. It, as noticed
hereinbefore, determined the contentious issues which were required to be
proved in terms of the provisions of the Indian Evidence Act.
It is
one thing to say that in a given case a person may be held to be entitled to
police protection, having regard to the threat perception, but it is another
thing to say that he is entitled thereto for holding an office and discharging
certain functions when his right to do so is open to question. A person could
not approach the High Court for the purpose of determining such disputed
questions of fact which was beyond the scope and purport of the jurisdiction of
the High Court while exercising writ jurisdiction as it also involved
determination of disputed questions of fact. The respondent no.1 who sought to
claim a status was required to establish the same in a court of law in an
appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure
stares on his face. He, therefore, could not have filed a writ petition
for getting the self same issues determined in his favour
which he could not do even by filing a suit. Indeed the jurisdiction of the
writ court is wide while granting relief to a citizen of India so as to protect
his life and liberty as adumbrated under Article 21 of the Constitution of
India, but while doing so it could not collaterally go into that question,
determination whereof would undoubtedly be beyond its domain. What was
necessary for determination of the question arising in the writ petition was
not the interpretation of the document alone, but it required adduction of oral
evidence as well. Such evidence was necessary for the purpose of explaining the
true nature of the deed of trust, as also the practice followed by this trust.
In any event, the impleading applicant herein, as
noticed hereinbefore, has raised a contention that he alone was ordained to
hold the said office as per the bye- laws of the trust. The qualification of
the first respondent to hold the office was also in question. In this view of
the matter, we are of the opinion that such disputed questions could not have
been gone into by the High Court in a writ proceeding.
Furthermore,
the jurisdiction of the civil court is wide and plenary. In a case of this
nature, a writ proceeding cannot be a substitute for a civil suit.
For
the foregoing reasons, the impugned judgment cannot be sustained which is set
aside accordingly. However, in the event, the first respondent feels that he as
a person should receive protection to his life he may make an appropriate
representation to the Superintendent of Police who after causing an inquiry
made in this behalf may pass an appropriate order as is permissible in law. The
appeal is allowed with the aforementioned observations.
In
view of the facts and circumstances of the case there shall be no order as to
costs.
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