Back
Judges : K.K.NARENDRAN,PARIPOORNAN
SWAMI PREMANANDA BHARATHI - Appellant
Versus
SWAMI YOGANANDA BHARATHI - Respondent
Case No : A.S. No. 32,119 of 1978
Decided On : 12/12/1984
Advocates Appeared :
C.K.S. Paniker; For Appellant P. Sukumaran Nair; K.N. Nair; For Respondent
Commissioner - Accounts and Liability - Order XXVI R.11 and 12, C. P. C. - The court appointed a Commissioner for examining the accounts and liability of the first defendant. The court below acted illegally and totally in excess of or without jurisdiction in appointing a second commissioner and in placing reliance on the subsequent reports (Exts. C6 and C10) without setting aside the first commissioner's report (Ext.C5). The appointment of the second commissioner without setting aside the report and proceedings of the first commissioner is wholly illegal and without jurisdiction. The decision of the trial court shows the entire reasoning and conclusion is based on Exts.C6 and C10. The Judgment of the trial court cannot stand. In view of our conclusion that Ext.C5 will hold good, till it is set aside, for reasons stated, Exts. C6 and C10 should be eschewed from consideration. The trial court will consider Ext. C5 report and the evidence of the commissioner recorded on 15-1-1972. If the court finds for valid and sufficient grounds, that Ext.C5 report is not acceptable or otherwise infirm, then and then alone, it will appoint another commissioner and proceed further in accordance with law. In case, the court finds that Ext. C5 report is proper and acceptable, it will proceed to decide the suit in the light of that report and evidence recorded in the case.
Fact of the Case:
The suit was filed for removal of the first defendant from the management of the Asramam, to frame a scheme for the administration of the Trust, and for an order of injunction. The plaintiffs are Sanyasis attached to the Asramam of which the first defendant is the Mahant in office. The case has a chequered career with voluminous facts involved. The matter was taken up in appeal after being decreed by the trial Court. The decision rendered in appeal by the High Court held that the first defendant is a legally constituted Mahant and competent to act. Suits were filed for accounting and removal of the first defendant. Pending the suits, a Receiver was appointed in O.S. No. 2 of 1962. The Supreme Court directed the appointment of a Commissioner for taking up accounts from the first defendant from the date he assumed charge of the office of Mahant.
Finding of the Court:
The court below acted illegally and totally in excess of or without jurisdiction in appointing a second commissioner and in placing reliance on the subsequent reports (Exts. C6 and C10) without setting aside the first commissioner's report (Ext.C5). The Judgment of the trial court cannot stand. The matter is remitted back to the court below for fresh consideration in accordance with law and in the light of the observations contained herein.
Issues: The main point involved in these appeals is relating to the accounts and the liability of the first defendant. The court below discarded Ext. C5 report (Ist Commissioner's report) altogether and placed reliance on the second Commissioner's reports (Exts. C6 and C10).
Ratio Decidendi: The appointment of the second commissioner without setting aside the report and proceedings of the first commissioner is wholly illegal and without jurisdiction. The decision of the trial court shows the entire reasoning and conclusion is based on Exts.C6 and C10. The Judgment of the trial court cannot stand. In view of our conclusion that Ext.C5 will hold good, till it is set aside, for reasons stated, Exts. C6 and C10 should be eschewed from consideration.
Final Decision: The appeals are allowed. The matter is remitted back to the court below for fresh consideration in accordance with law and in the light of the observations contained herein. The matter will be posted in the court below for appearance of parties on 7-1-1985.
1. These are connected appeals. The 1st defendant in O. S, No. 2 of 1962, District Court, Quilon, is the appellant in A. S. No. 32 of 1978. The 1st plaintiff in O. S. No. 2 of 1962, District Court, Quilon, is the appellant in A.S. No. 119 of 1978. Originally there were two suits, O. S. Nos. 2 and 3 of 1962. The 1st defendant in O. S. No. 2 of 1962, was the plaintiff in O. S. No. 3 of 1962. This later Suit, O. S.3 of 1962, was withdrawn. We are now concerned only with O. S. No. 2 of 1962, The case has a chequered career. The facts involved are voluminous. In the light of our decision on a fundamental and crucial point, we are stating only the bare minimum facts to understand the background of the case. The suit was filed for removal of the first defendant from the management of the Asramam, to frame a scheme for the administration of the Trust, and for an order of injunction. The plaintiffs are Sanyasis attached to the Asramam of which the first defendant is the Mahant in office. Originally this suit was decreed by the trial Court. The matter was taken up in appeal. The decision rendered in appeal by the High Court is reported in Swamy Premananda Bharathy v. Swamy Yogananda Bharathy (1965 KLT 824). The High Court held that the first defendant is a legally constituted Mahant and competent to act. The Math was founded and managed by one Sadananda Swami in 1900. He entered Samadhi on 22-1-1924. He was succeeded by his chief disciple Mahaprasad Swami. He entered Samadhi on 7-6-954. Thereafter, the first defendant is the Mahant in office. Suits were filed for accounting and removal of the first defendant. Pending the suits, a Receiver was appointed in O.S. No. 2 of 1962. It was for accounting for the period from 7-6-1954 to 28-10-1963 on which date the Receiver was appointed. From the decision of the High Court rendered in 1965 KLT 824 appeals were filed before the Supreme Court as C. A. 722 of 1966 and C. A. No. 613 of 1967. The said appeals were first disposed of on 13th September. 1968. The Supreme Court directed the Receiver to submit a report on certain aspects. They are detailed at pages 4 and 5 of the Paper Book. Clause.6,10 and 11 of the judgment of the Supreme Court are important, which read as follows:
"6. The present assets together with the annual income from the properties and a statement of the approximate expenditure required to be incurred for the purpose of the Math;
10. A List of the books of accounts maintained in the Math and the explanation of the first defendant where the account books were not maintained by him, or if they were maintained, the reasons why the books of account are not forth-coming;
11. Annual statements of income and expenditure from the properties of the Math since the first defendant started management of the properties of the Math in the life time of Mahaprasad Swami as his manager and later on on the death of Mahaprasad Swami as Mahant;"
As ordered by the District Court on 30-11-1968, the Auditor filed the report dated 16-1-1969. This report was relied on by the Receiver to file the report in the Supreme Court, as ordered. The important aspects are contained at pages 81 and 86 of the Paper Book. The matters relating to the Vaidyasala and Ayurvedic Pharmacy were also dealt with. Page 88 of the Paper Book contains the relevant books maintained. It is seen that on 7-11-1963 when the Receiver took charge the first defendant was bound to entrust a cash balance of Rs. 1.019.95. He handed over Rs. 1,019.35. The Supreme Court gave subsequent directions by order dated 29-7-1969 (Page 90 of the Paper Book). Finally on 16-9-1970 the appeals were disposed of. It was held that:
"It is futile to dwell on the various defects and infirmities in the accounts as also on the administration and management of the Matt which has been pointed out by the District Court."
The Supreme Court took the view that it is not neceassary or expedient to direct the removal of the first defendant as Mahant. The District
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
