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CASE NO.: Appeal (civil)  1634 of 2006

PETITIONER: P.R. Murlidharan & Ors

RESPONDENT: Swami Dharmananda Theertha Padar & Ors

DATE OF JUDGMENT: 10/03/2006

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T (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

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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\005"

          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

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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.