IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14335 of 2010(O)
1. REV.SR.FEBA, AGED 57 YEARS,
... Petitioner
Vs
1. SR.EMILIA, AGED 54 YEARS,
... Respondent
For Petitioner :SRI.ASOK M.CHERIAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/05/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.14335 of 2010
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Dated this the 6th day of May, 2010.
JUDGMENT
This Writ Petition is in challenge of judgment of learned Additional District
Judge-III, Kollam in C.M.A.No.34 of 2010 setting aside the order passed by the
learned Munsiff-Magistrate, Sasthamcotta on I.A.No.1305 of 2009 in O.S.No.333
of 2009. That was a suit for permanent injunction filed by the petitioner before
me claiming to be the Secretary of the trust referred to in the plaint. According to
the petitioner, the suit property was taken on lease for a period of 30 years by
the trust from Mar Baselius Marthoma Didimos, the supreme head of the
Malankara Sabha. In that property, an English medium school is being run.
Petitioner is claimed to be in possession and enjoyment of the suit property in
her capacity as the Secretary of the trust. In the meantime, respondent, another
nun (Mother Superior of the Basalel Convent, Sooranadu to which petitioner also
belonged) is attempting to take forceable possession of the property.
Respondent admitted that petitioner was the Secretary of the trust till she was
removed from that post on 12.11.2009 and in that post, respondent was elected.
She contended that the power of attorney executed in favour of petitioner by
Mar Baselius Marthoma Didimos was cancelled and subsequent to 12.11.2009,
petitioner has no right, interest or possession over the suit property. Learned
Munsiff-Magistrate so far as the documents produced by the respondent
(revocation of power of attorney and letter dated 5.12.2009 issued by the
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Managing Trustee to the petitioner to handover the property to the newly elected
Secretary, respondent) are concerned observed that those documents are
obtained subsequent to the suit and hence cannot be looked into. Learned
Munsiff-Magistrate observed that the lease deed in the name of petitioner (at a
time when she was admittedly the Secretary of the trust) and receipt for
payment of revenue revealed a prima facie case in favour of the petitioner and
granted injunction. Appellate court found that the crucial question was whether
petitioner was removed from the post of Secretary in the election held on
12.11.2009 but the learned Munsiff-Magistrate has not adverted to that aspect
nor entered any finding and hence the order under challenge cannot be
sustained. Accordingly the impugned order was set aside and I.A.No.1305 of
2009 was remitted to the trial court for fresh consideration. That judgment is
under challenge in this petition at the instance of petitioner/plaintiff. Learned
counsel for petitioner contends that the trial court had, with all the documents
produced by the petitioner including the result of election came to the conclusion
that petitioner has prima facie case and found in her favour. But on going
through the order under challenge I find that no finding has entered as to the
validity of the election of the respondent on 12.11.2009 or, the effect of the
documents produced by the respondent in the trial court. Instead, those
documents were brushed aside for the mere reason that they were obtained
subsequent to the institution of the suit. But learned Munsiff-Magistrate failed to
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note that even the election set up by the respondent was held on on 12.11.2009
and the letter produced by the respondent in the trial court was dated 5.12.2009.
It is in the above circumstances that appellate court found that the real issue
regarding the case was not considered by the learned Munsiff-Magistrate and
required reconsideration. The appellate court also observed that since
respondent has already filed written statement (and if pre-trial steps are over)
the trial of the case could be expedited. I do not find anything illegal in the
appellate court holding so. There is no case for the petitioner that she has any
independent right, interest or possession over the suit property apart from being
the Secretary of the trust which had taken the property on lease. Therefore the
issue whether the petitioner continued to be the Secretary of the Trust after
12.11.2009 is certainly relevant for consideration even in deciding I.A.No.1305
of 2009. As such the appellate court is justified in setting aside the impugned
order and remitting I.A.No.1305 of 2009 for fresh consideration. I find no
reason to interfere with the order under challenge in this petition.
2. Learned counsel for petitioner requested that an interim order of
injunction may be passed in this proceeding until disposal of I.A.No.1305 of
2009. But I am of the view that without deciding as to who is in actual
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possession of the property it is not proper for me to grant interim order as
prayed for. It is open to the petitioner to move the vacation court (in case there
is any urgency) and seek appropriate interim relief as sought for.
With the above observation this Writ Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks