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ASOK KUMAR, MANGUZHI HOUSE v. THE COHIN DEVASWOM BOARD, THRISSUR - RFA No. 398 of 2006  RD-KL 340 (5 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMRFA No. 398 of 2006()
1. ASOK KUMAR, MANGUZHI HOUSE,
1. THE COHIN DEVASWOM BOARD, THRISSUR,
2. KOOTTALA KSHETHRA KSHEMA SAMITHY,
3. KOOTTALA KSHETHRA KSHEMA SAMITHY,
4. KOOTTALA KSHETHRA KSHEMA SAMITHY,
5. KOOTTALA KSHETHRA KSHEMA SAMITHY
6. KERALA KSHETHRA SAMRAKSHANA SAMITHY,
7. HINDU AIKYAVEDI, ALUVA TALUK, ANGAMALY,
8. SIVARAMAN NAIR,
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.M.P.RAMNATH
The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice A.K.BASHEER
O R D E R
KURIAN JOSEPH & A.K.BASHEER,JJ.R.F.A.No.398 of 2006
Dated this the 5th day of January, 2007
Basheer, J.Appellant is the plaintiff in O.S.No.179/2006 on the file of the Principal Subordinate Judge's Court, North Paravur. The suit was filed for declaration of title, fixation of boundary and for consequential injunction. The court below considered the question of maintainability of the suit as a preliminary issue and by order dated August 8, 2006 it has been held that the suit was not maintainable on the ground that it is barred under Section 124 of the Travancore Cochin Hindu Religious Institutions Act, 1950.
2. Learned counsel for the parties have addressed the court elaborately. In view of the order that we propose to pass we do not deem it necessary to deal with the other grounds. Learned counsel for the appellant submits that the appellant is prepared to institute a fresh suit before the appropriate civil court since he had already issued notice under Section 124 of the Act. He prays for some breathing time to RFA NO.398/2006 enable him to prefer the suit. He further submits that the appellant may be permitted to withdraw the appeal and the suit with liberty to file a fresh one.
3. Learned counsel for the respondents takes strong exception to the grant of any liberty to the appellant to institute a fresh suit. It is contended by him that the past conduct of the appellant would disentitle him to the liberty to file a fresh suit. When this appeal was admitted this court had granted an order of interim injunction restraining the respondents, their agents or men from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule properties in the suit or "making any constructions therein (outside the temple compound of the temple)" till the disposal of the appeal. Learned counsel for the appellant submits that the interim order of injunction may be kept in force for one week till the appellant is able to file a fresh suit and obtain appropriate interim orders from the civil court.
4. Our attention has been invited to a sketch which purportedly pertains to the temple property including the property claimed by the RFA NO.398/2006 appellant. Though the sketch is not drawn to scale, it shall form part of the records. It is marked as Ext.X1. Learned counsel for the respondents submits that the respondents do not propose to make any construction on the east, north and south of the existing temple where Brahmaraksha Thara, Manputtu, Kalkettu etc. are situated. The above submission is recorded. We have referred to the above sketch only to consider the request made by the appellant that the interim injunction granted by this court may remain in force for a period of one week from today. We make it clear that it shall not be relied on by the parties in any of the proceedings; either pending or future. In the peculiar facts and circumstances of the case we are satisfied that the prayer can be granted.
5. However, it is clarified that the order of injunction is limited to construction activity only on the east, north and south of the temple structure. It is further made clear that it will be open to the respondents to go ahead with the constructions on the western side including that of the new Balabhadra temple, Nagathara, etc. We hasten to add that it will be open to the civil court to pass appropriate RFA NO.398/2006 interim orders on any interlocutory application that may be moved by the appellant or the respondents in the fresh suit strictly on its merit and in accordance with law.
6. The prayer for permission to withdraw the appeal and suit is granted with liberty as mentioned above. This appeal and O.S.No.179/2006 on the file of the Principal Subordinate Judge's Court, North Paravur are dismissed are withdrawn. The interim order in I.A.No.3360/2006 dated 22-8-2006, subject to the above clarification, will continue for another one week.
(KURIAN JOSEPH, JUDGE)
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