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R.P. Ahammadkutty Haji Vs. Vattakandy Ahammadkutty Haji and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 986 of 1980-E
Judge
Reported inAIR1982Ker146
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96
AppellantR.P. Ahammadkutty Haji
RespondentVattakandy Ahammadkutty Haji and anr.
Appellant Advocate T.R. Govinda Wariyer,; Sebastian Davis,; H. Sivaraman
Respondent Advocate V.R. Venkitakrishnan, Adv.
DispositionPetition allowed
Cases Referred and Burgress v. Morton
Excerpt:
- - in that case, the person who contends that no appeal will lie, must clearly show that the right has, either expressly or by necessary implication, been given up,'it is also held in the same decision that the proper test to apply is whether the judgment in regard to which the question arises has been pronounced extra cursus curiae......the plaintiff and the defendants for the management of the mosque. the receiver was to convene a general body meeting of the members of the mahal giving them one week's notice. both the draft constitutions submitted by the contesting parties were to be read over at the public meeting of the members of the mahal and the general body is to choose either of the constitutions by secret ballot. thereafter a committee is to be constituted in accordance with the provisions of the constitution adopted by the general body to be in charge of the administration and management of the mosque. according to both the draft constitutions submitted by the parties the heads of families in the mahal are to constitute the general body of members under the constitution. but to decide which of the two.....
Judgment:
ORDER

P.C. Balakrishna Menon, J.

1. The dispute in regard to the right of management of a Mosque once settled' between the parties has escalated to this Court on the question of interpretation of the settlement itself. The Poonoor Madathumpoyli Mosque was being managed by a Committee consisting of 10 members. The Committee took a decision on 9-12-1975 to frame and adopt a constitution for the proper management of the Mosque. A constitution was accordingly adopted by the Committee and the same was registered under the Societies Registration Act as the rules and bye-laws for the management of the Mosque. As per a resolution of the Committee dated 23-1-1977 the existing Committee was dissolved and a new Committee of management was to be constituted as per the rules and bye-laws under the constitution adopted by the Committee. It is at this stage that the 3rd defendant filed a suit O. S. No. 45 of 1977 on the file of the Munsiff's Court, Perambra for an in-junction restraining the plaintiff and others from managing the mosque. Thereafter the plaintiff instituted s suit in the Munsiff's Court, Quilandy, which on transfer was numbered as O. S. No. 14 of 1978 of the Munsiff's Court, Perambra, for an Injunction against the defendants from interfering with the management of the mosque by the Committee of which the plaintiff is the president. The parties settled the dispute as per a compromise petition I. A. No. 192 of 1978 filed on 31-5-1978, As per the terms of the compromise the parties agreed as to the area of the mahal of the mosque. Both parties were to prepare a list of members of the mahal and entrust the same to a receiver to be appointed in the suit and if there is any dispute in regard to the list ofmembers of the mahal the same is to be reported by the receiver to the Court for decision. There were two draft constitutions submitted by the plaintiff and the defendants for the management of the mosque. The receiver was to convene a general body meeting of the members of the mahal giving them one week's notice. Both the draft constitutions submitted by the contesting parties were to be read over at the public meeting of the members of the mahal and the general body is to choose either of the constitutions by secret ballot. Thereafter a committee is to be constituted in accordance with the provisions of the constitution adopted by the general body to be in charge of the administration and management of the mosque. According to both the draft constitutions submitted by the parties the heads of families in the mahal are to constitute the general body of members under the constitution. But to decide which of the two constitutions is to be adopted, the decision should be of the majority of members of the mahal (original in Malayalam omitted- -- Ed.) to be ascertained by a process of election by secret ballot. The election is to be conducted by the receiver or some other person deputed for that purpose by the court. The court on 31-5-1978 itself passed an order recording the compromise and appointing a Commissioner to implement the terms set out therein. Both parties submitted lists of members of the mahal to the Commissioner for the purpose of convening a meeting of the general body to adopt either the one or the other of the draft constitutions submitted for approval by the general body. The list submitted by the plaintiff contained the names of all the major members of the mahal, but the defendants' list took in only the heads of families resident in the mahal. Since there was dispute between the parties as to the personnel of the general body entitled to vote at the meeting, the Commissioner as per his report dated 14-7-1978 sought directions of court as to whether the general body of the members of the mahal should consist of all major members or only the heads of families resident in the mahal, The court on the report of the Commissioner gave a direction to constitute a committee of 4 elders, two from each group, with the Commissioner as Chairman of the Committee to scrutinise the eligibility of each voter from the lists submitted by both the parties, and in case of disagreement between the partiesto make a specific reference to the court for decision on merits. The defendants filed I. A. No. 332 of 1978 for a review of this direction given by the court on the Commissioner's report. The review application was allowed and the learned munsiff passed a fresh order holding that the heads of families alone are recognised as members of the mahal and they alone will constitute the general body entitled to vote at the meeting to adopt one or the other of the two draft constitutions submitted by the parties to the suit. Dissatisfied by the direction of the learned munsiff, the plaintiff appealed to the Sub Court, Badagara. The learned Subordinate Judge dismissed the appeal as not maintainable holding that the subject matter of the appeal is extra cursus curiae. It is against this that the plaintiff has come up in revision.

2. The question is whether the court below is right in rejecting the appeal as relating to a matter extra cursus curiae. Both the parties have accepted the compromise recorded in the suit. There is no appeal against the order passed recording the compromise. The only dispute in the present proceedings is in regard to the interpretation of the terms of the compromise. In other words, the dispute is only with respect to the enforcement of the compromise decree passed in the suit. Such a matter cannot be construed as extra eursus curiae.

3. In the decision reported in Net! Venkata Somayajulu v. Adusumilli Ven-kanna (AIR 1934 Mad 397) after a discussion of the case law on the subject it is stated as follows:

'The result however of the case is that if the proceeding Is extra cursus curiae, the decision is in the nature of a consent order and generally the right of appeal is barred. If, on the other hand, it is not extra cursus curiae, unless there is a clear waiver of the right, the right of appeal will not be lost; in that case, the person who contends that no appeal will lie, must clearly show that the right has, either expressly or by necessary implication, been given up,'

It is also held in the same decision that the proper test to apply is whether the judgment in regard to which the question arises has been pronounced extra cursus curiae. If so, it is in the nature of an arbitrator's award and as a general rule no appeal from it will lie. The same principle is referred to in the decision of the Full Bench of the Andhra Pradesh HighCourt reported in Munnaluri Venkata-swarlu v. Vaddule Narasi Reddy (AIR 1961 Andh Pra 71). Both the decisions have quoted the following passage from the decision of the Judicial Committee of the Privy Council in Pisani v. Attorney General of Gibralter (1874) LR 5 PC 516.

'Departures from ordinary practice by consent are of every day occurrence; but unless there is an attempt to give the Court a jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure, that it puts it entirely out of its course, such departures have never been held to deprive either of the parties of the right of appeal.'

The decision of the Full Bench of the Andhra Pradesh High Court after considering the Privy Council decision referred to above and also other decisions including those in Kotamma v. Mangamma (AIR 1957 Andh Pra 700), K. Satyanara-yana v. G. Subbiah (1957 (1) Andh WR 11), Bambrana Guddappa Rai v. Ramanna Banta (AIR 1957 Mad 95) and Burgress v. Morton (1896 AC 136) (HL) has stated:

'The deviation from the cursus curias with the acquiescence of both parties may result in certain consequences. One such consequence, as Lord Halsbury had observed, is that the parties are precluded from subsequently treating the matter as though it had been arrived in the usual course.'

4. It is clear from the principles discussed above that the subject of dispute in these proceedings is not extra cursus curiae, The disputes between the parties were settled in terms of the compromise and the compromise decree itself envisages all further disputes to be decided by court cursus curiae. The court below was, therefore, wrong in holding that the appeal against the order of review by the munsiff was not maintainable.

5. The only other question for decision in this revision is as to whether it is the general body of the public of the mahal or the heads of families resident in the mahal who will be entitled to vote to adopt either the one or the other of the two draft constitutions submitted by the parties to the suit. It is pointed out by Sri V. R. Venkitakrishnan, learned counsel for the respondents that as per the terms of both the draft constitutions the general body of members under the constitution is only the heads of families resident in the mahal. That does not, however, mean that a constitution is to be adopted bythe general body of members envisaged by the constitution itself The express provision in the compromise decree is that either the one or the other of the draft constitutions is to be adopted by the general body of members of the public of the mahal after both the draft constitutions are read over at a meeting convened by the Commissioner after due notice to the public. There can, therefore, be no doubt that it is not the general body of members referred to in the draft constitutions to adopt the constitution itself. It is to be adopted by the general body of the public of the mahal as per the terms of the compromise, No other interpretation is possible on its terms. The trial court was, therefore, wrong in taking the view that it is only the heads of families resident in the mahal who alone can constitute the general body of the public to adopt the one or the other of the constitutions.

The result is : I set aside the orders of both the courts below and direct the trial court to issue appropriate directions to the Commissioner to convene a meeting of the general body of the public of the mahal of the mosque for the purpose of adopting the one or the other of the two draft constitutions submitted by the parties for the purpose of administration of the mosque. The C.R.P. is allowed. There will be no order as to costs.


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