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Rajeev & Sayujya 2018 ICO 870 Page 1 of 3

2018 ICO 870

2018 (3) KLJ 491

22-06-2018
High Court of Kerala

O.P.(C) No. 843 of 2018

Justice Sathish Ninan

Shaiju J ( Represented by, B Suresh Kumar (Adv.) & Anuroopa Jayadevan (Adv.) )

Vs.

Official Receiver Vanchiyil Sree Saravana Temple Kollam & Ors ( Represented by, K P Dandapani (Sr.
Adv.) & Millu Dandapani (Adv.) )

Equivalent Citations : 2018 (3) KHC 493 :: 2018 (3) KLT 161 :: 2018 (3) KLJ 491 :: ILR 2019 (1) Ker. 861

Referred Citations : 1985 ICO 1068,1961 ICO 227,2012 ICO 575,2016 ICO 1671,1960 ICO 1323,1946 ICO
29

Headnotes :-

A. Code of Civil Procedure, 1908 – Sections 92 and 151 – Modification of scheme – Whether
applications are maintainable in a suit under Section 92 of the Code of Civil Procedure after a scheme
is settled? – Held: A scheme could be amended or modified for the purpose of administration on an
application in terms of the relevant clause under the scheme, or even under the inherent powers of the
Court in the absence of an express enabling provision, unless a substantial alteration or effacing of the
basic structure of the scheme is sought for. ( Para 9 )

B. Code of Civil Procedure, 1908 – Sections 92 and 151 – Modification of scheme – Maintainability of
interlocutory applications – The Interlocutory applications which cannot be said to be seeking to
modify or alter the scheme, but are only for directions for administration in terms of the scheme, are
maintainable. ( Para 11 )

JUDGMENT
Sathish Ninan, J.
1. Interlocutory applications filed in a suit under Section 92 of the Code of Civil Procedure, after the settling
of scheme, were returned by the court, as 'lacking jurisdiction'. The said order is under challenge in this
Original Petition.
2. Heard Sri.B.Suresh Kumar, learned counsel appearing for the petitioner and Sri.K.P.Dandapani, learned
Senior Counsel appearing for the respondents.
3. O.S. No.7/2002 was a suit under Section 92 of the Code of Civil Procedure. On 29.09.2007, decree was
passed settling the scheme. Challenging the said decree, there was an appeal before this Court as R.F.A.
No.6/2008. This Court confirmed the decree passed by the trial court. The SLP filed against the judgment
was dismissed by the Apex Court. C. R.

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4. Thereafter, alleging that out of the three temples situated in the temple compound, one of the temples
namely, Yogeeswara Temple, was demolished, the petitioner along with another filed I.A. No.124/14 with
the following prayers:
(1) To prohibit further demolishing of structures in the temple compound.
(2) To restore Yogeeswara Temple at the same place under court supervision.
(3) For removal of the then members of the Administrative Committee.
The application was allowed by the District Court and Official Receiver was appointed for management and
administration of the temple. The order on I.A. No.124/14 was challenged before this Court in FAO 158/14.
On 02.12.2014, a judgment was delivered in the appeal, on consent between the parties. The directions
therein related to conduct of election, for the construction of the “Yogeeswara Temple” after conducting
“Ashtamangalya Prasnam” and also regarding accounting of money. “Ashtamangalya Prasnam” was to be
conducted within a period of one month from the date of judgment. As per order dated 17.12.2014, the
period was extended by one month from 02.01.2015.
5. It appears that, “Ashtamangalya Deva Prasnam” suggested the name of the temple be changed to “Sree
Saravana Bhava Temple, Eravipuram”. Thereafter, notification for conduct of election was published. The
petitioner filed I.A. No.1353/2015 seeking the following reliefs:
(1) To declare the result of “Ashtamangalya Deva Prasnam” as null and void.
(2) To declare that the members of the earlier Administrative Committee who were removed
as per the order on I.A. No.124/14 are incompetent to submit the nominations for a reasonable
period.
(3) To remove the Official Receiver from the post of Receiver of the Temple and to appoint a
Senior Advocate as the Receiver.
6. In the meanwhile, in terms of the judgment in FAO 158/14, elections were conducted to the Managing
Committee. The Official Receiver gave charge to the new committee. The petitioner filed I.A. No.1581/15
seeking the following reliefs:
(1) Injunction from demolishing any structures in the temple compound.
(2) Injunction from shifting the site of the temple.
(3) Injunction from changing the name of the temple from “Vanchiyil Sree Saravana
Kshetram, Eravipuram”, to “Sree Saravana Bhava Kshethram” on the strength of
Ashtamangala Deva Prasnam.
7. Pending the same, the elected President and Secretary filed I.A. No.12/17 seeking permission to change
the name of the temple to “Eravipuram Sree Saravana Bhava Temple” based on the General Body decision
and also seeking permission to construct temple in accordance with the plan and estimate approved by the
General Body. As per the impugned order, the court below held the interlocutory applications to be not
maintainable.
8. The question that arises for determination is whether applications are maintainable in a suit under Section
92 of the Code of Civil Procedure after a scheme is settled.
9. A suit under Section 92 is considered analogous to an Administration Suit. The scheme that is formulated
may itself provide that directions could be sought for from the court for the purpose of effectively carrying
out the scheme. In Raje Anandrao v. Shamrao and Others, AIR 1961 SC 1206 :: 1961 ICO 227, the Apex
Court upheld the provision in a scheme enabling modification of the scheme by an application in the same
proceeding without having to resort to a separate suit. In Radhakrishna Pillai v. Bhargavi Amma, 2012 (2)
KLT 842 :: 2012 (2) KLJ 874 :: 2012 ICO 575, question arose as to whether a fresh suit is necessary for
modification of the scheme. It was held that a fresh suit is necessary only if substantial alterations in the
scheme are proposed. The said judgment was affirmed by the Apex Court in S.L.P.(Civil) No.24355/2012.

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The Calcutta High Court in Abdul Khair and anr. v. Nazir Hossain and Ors., AIR 1960 Cal. 631 :: 1960 ICO
1323 held that by way of an application, a settled scheme cannot be scrapped in its entirety by substituting a
new one. This Court in Elias v. Elias, 1986 KLT 72 :: 1985 ICO 1068 held that a scheme could be modified
under Section 151 of CPC to prevent abuse of process of court or for the ends of justice, even in the absence
of an enabling provision in the scheme. In Gangaram Govind v. K.R.Vinchurkar, AIR 1948 Bom. 146 ::
1946 ICO 29, it was held that the court has inherent power under Section 151 CPC to alter a scheme even in
the absence of a clause giving “liberty to apply”, to meet the ends of justice. In Ray Sudhan v. Sajeendran,
2017 (1) KLT 371 :: 2016 ICO 1671, a Division Bench of this Court held that modification of the scheme
for the purpose of administration could be made on an application made in terms of the relevant clause of
the scheme. Therefore, a scheme could be amended or modified for the purpose of administration on an
application in terms of the relevant clause under the scheme, or even under the inherent powers of the court
in the absence of an express enabling provision, unless a substantial alteration or effacing of the basic
structure of the scheme is sought for.
10. In the case at hand, admittedly there is no provision in the scheme enabling to move an application
seeking modification of the scheme. Noticeably, there is no prayer for amendment or modification of the
scheme as such. All that has been sought for are orders in relation to the administration of the temple in
terms of the scheme. The court below relying on the decision of the Apex Court in Raje Anandrao v.
Shamrao and Ors. [supra] and Ray Sudhan v. Sajeendran [supra] held that in the absence of a specific
provision in the scheme permitting amendment or alteration, the applications are not maintainable. In Raje
Anandrao v. Shamrao and Ors. [supra] the question considered was, when there is a provision in the scheme
enabling to apply to the Court for modification, is a fresh suit necessary. Certain observations made by the
Apex Court are of relevance: “We shall confine ourselves only to the question whether in a case where there
is provision in the scheme for its modification by an application to the court, it is open to the Court to make
modifications therein without the necessity of a suit under Section 92”. Ray Sudhan v. Sajeendran [supra]
was a case where a modification of the scheme was sought for under the powers conferred on a clause
provided under the scheme to the said effect. As noticed supra, the present case does not involve any
modification or alteration of the scheme.
11. As is revealed from the facts stated above, subsequent to the settling of the scheme, I.A. No.124/14 was
filed, based on which the administrative committee was removed and the Official Receiver took charge. In
FAO 158/14 which arose from I.A. 124/14, a consent order was passed regarding the construction of
Yogeeswara Temple which was demolished by the then administrative committee subsequent to the settling
of the scheme. Evidently there has been an attempt to change the name of the temple which has been settled
by the scheme. It is noticeable that in RFA 6/2008, the dispute was centered around the name of the temple
and this Court affirmed the finding of the District Court that the name of the temple shall be “Vanchiyil Sree
Saravana Temple”. The SLP filed against the said judgment was dismissed by the Apex Court. The prayers
in the present applications cannot be said to be seeking to modify or alter the scheme, but are only for
directions for administration in terms of the scheme. I am of the opinion that the court below was not right in
dismissing the applications. The court below ought to have taken note of the fact that it is pursuant to the
settling of the scheme that orders were passed on I.A. 124/14 by the District Court and a consent judgment
by this Court in FAO 158/14. The provisions therein relate to the administration of the temple including
election and construction of the temple. I hold that the applications are maintainable. Though the petitioners
in I.A. No.12/17 have not challenged the order of dismissal, since the applications were dismissed by a
common order on the ground of lack of jurisdiction to entertain them, I set aside the order and direct the
court below to consider the applications afresh on its merits, if pursued by the respective parties.
Considering the nature of reliefs sought for in the applications, I direct the court below to hear and pass
orders on the applications as expeditiously as possible.
The original petition is allowed as above.
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