IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 300 of 1996()
1. M.VITTAL BHAT
... Petitioner
Vs
1. B.M.SUBRAYA HEGDE
... Respondent
For Petitioner :SRI.P.K.MUHAMMED,O.D.SIVADAS
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :12/08/2010
O R D E R
M.N.KRISHNAN, J.
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A.S.No.300 OF 1996
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Dated this the 12th day of August, 2010.
JUDGMENT
This is an appeal preferred by the defendants in O.S.No.70
of 1991 of the Subordinate Judge’s Court, Kasaragod. The suit is
one for damages. The plaintiff is the elected trustee of
Sreemad Anantheshwar Temple, Manjeshwar. The temple was
managed by counsel of trustees elected as per the scheme
framed which had attained finality by judgment of the High
Court. As per the scheme, the elected trustees have the right to
continue in office for a period of 5 years. It is managed by the 1st
defendant. As the President of the counsel of trustees he
colluded with others and passed a resolution and removed the
plaintiff from the office of the trusteeship. Thereafter, the
plaintiff was not permitted to participate in the management of
the temple. Therefore, the plaintiff moved a suit in O.S.No129 of
1990 before the Principlal Munsiff, Kasaragod and the court
allowed the prayer. But, in spite of the same, the defendants did
not permit and so the plaintiff moved a suit in O.S.No.203 of
1990 before the Munsiff’s Court Kasaragod and the said court
passed order of interim injunction restraining the defendants
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from electing a new trustee in the place of the plaintiff. This was
confirmed by the High Court. But the defendants did not heed
to the request the plaintiff and therefore, he has suffered
damages and so the suit.
2. On the other hand defendants would contend that there
were large number of complaints about the plaintiff and
therefore he was removed from the trusteeship and therefore he
is not entitled to any compensation as damages. The trial court
on consideration of the materials, granted a decree in favour of
the plaintiff for Rs.30,000/- with 12% interest. It is against that
decision the defendants have come up in appeal.
3. Heard the learned counsel for appellants as well as the
respondents.
4. It is the case of the plaintiff that he is an elected trustee
as per the scheme governing the matter. While he was
functioning due to the attitude of the 1st defendant he along with
others passed a resolution and removed the plaintiff from the
trusteeship. The plaintiff filed a suit O.S.No. 129 of 1990 against
the said resolution which was decreed in his favour. In spite of
the decree plaintiff was not permitted to participate and
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therefore, he moved O.S.No.203 of 1990 and obtained an order of
injunction restraining any other person from being newly
inducted into the trusteeship. An injunction was granted. It was
confirmed in appeal by the Subordinate Judge’s Court as well as
the High Court. The copy of the order of the High Court in Ext.A3,
i.e., in C.R.P.No. 2261 of 1990. This Court by its judgment
dated 22.11.1990 confirmed the order of the Sub Judge. This
Court also in paragraph 3 observed that “as Ext.A1 scheme
governs the Temple and as it is specifically provided in Clause 3
that the trustees elected shall hold office for a period of 5 years
and as there is no provision for removal of the trustees by the
representative body who elected them, the principle laid down in
Narayanan Nair V. Joint Registrar, (1982 KLT 602) cannot
have any application. The court also found that by referring to
Ext.A1 scheme it can not be held that there is a power vested
with the representative body, impliedly, even to remove the
trustees. By virtue of the judgment earlier passed annulling the
resolution and again by passing an order with injunction the
courts below have made it clear that by interpreting the scheme
the elected trustee is entitled to conduct for a period of 5 years.
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Admittedly, after 25.2.1990 the plaintiff has been prevented from
participating in the management of the temple which he is
legitimately entitled to do under the scheme. Therefore, the
conduct of the defendants has caused him loss in the sense that
he had been deprived of the power which he has under the
scheme. Therefore, he is entitled to claim damages. As it is a
well settled principle in tort there can be damage without injury
and an injury without damage. So the plaintiff who is held in
esteem by virtue of the position of a trustee is deprived of
holding that post by the deliberate conduct of the defendants.
Therefore, the action for damages is sustainable in law as well
as on facts.
5. The next point is regarding limitation. The prevention
took place from 25.2.1990. The suit is filed on 22.3.1991. The
learned counsel for the appellants would submit before me, part
7 of the Limitation Act and Articles therein would govern the
period of limitation. I am afraid that the said argument cannot
be accepted. I have gone through the various Articles in part 7
and it does not relate to any action of this nature. So the action
will come as one for which no specific time bar is provided under
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the statute. Therefore the residuary Article 113 of the Limitation
Act will apply and, therefore, the plaintiff will be entitled to file
the suit within 3 years. Further, as observed by the court below
he had been knocking at the doors of justice and in spite of the
direction of the court the defendants refused to give him the right
which he is entitled to and, therefore, Section 14 of the Limitation
Act also comes to his rescue so it has to be held that the suit is
not barred by limitation.
6. Now, lastly on the quantum. It is very difficult to fix
quantum precisely in this type of cases. It is true that a person
who is elected as a trustee was not permitted to perform as a
trustee and really it is the mental injury that is to be looked into.
Taking into consideration the facts and circumstances and also
the fact that his 5 years term already expired I feel as a gesture
for the loss sustained by him a sum of Rs.20,000/- with 6%
interest from the date of decree can be granted in his favour.
Therefore, the appeal is partly allowed by modifying the decree
amount from Rs.30,000/- to 20,000/- and reducing the interest
from 12% to 6%.
In the result, a revised decree is passed whereby the
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plaintiff is granted a decree for realisation of Rs.20,000/- with 6%
interest from the date of suit till realisation with proportionate
costs from defendants 1 to 22. As far as, the appeal is concerned,
the parties are directed to bare their respective costs.
M.N.KRISHNAN, JUDGE
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