SWAMI PREMANANDA Vs. SWAMI YOGANANDA

JUDGEMENT

(1.) These are connected appeals. The 1st defendant in O. S, No. 2of 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 This later Suit, O. S.3 of 1962, was withdrawn.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

(2.) The main point involved in these appeals is relating to the accounts and the liability of the first defendant. The Supreme Court directed the appointment of a Commissioner and had given specific directions relating to that matter. Counsel for the first defendant, Mr. C.K. Sivasankara Panicker, very vehemently attacked the approach and the basis of the decision of the lower court. 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). Counsel attacked the approach made in this regard as unjustified and unsustainable. Counsel for the first plaintiff, Mr. P. Sukumaran Nair, was not able to successfully substantiate the approach and basis adopted by the lower court in eschewing Ext. C5 totally, and also in setting aside Ext. C5 (first Commissioner's report), after obtaining the second report (Exts. C6 and C10). However, counsel submitted in the alternative, that in view of prior proceedings, the court below could place reliance on Exts. C6 and C10 (second Commissioner' reports) to the extent they do not militate against the findings contained or dealt with in Ext. C5. On this aspect, counsel stressed the terms of the order of the Trial Court dated 21-12-1974 as affirmed in C.R.P No. 41 of 1975.

(3.) For a proper and effective decision in this case, the accounts have to be properly examined on the basis of the report of a Commissioner appointed by court. It was keeping in mind the aforesaid order of the Supreme Court the Trial Court appointed a Commissioner, Shri A. E. Thrivikrama Kurup, Advocate, who filed the report on 15-1-1972. He was examined on -15-1-1972. The Commissioner, Shri A.E. Thrivikrama Kurup availed the assistance of an Assistant of a Chartered Accountant firm. The short question that falls for consideration is, having obtained the report of a Commissioner and having examined such Commissioner, was the Trial Court competent and justified in law in appointing another or a second Commissioner and in obtaining another report without setting aside the prior report, Ext.C5, for valid reasons stated The subsequent reports are Exts. C6 and C10. Is it a condition precedent, before appointing another or a second Commissioner, that the report of the first Commissioner should be set aside or annulled for reasons stated If the court was not competent or acted unauthorisedly in appointing the second Commissioner, the reports so obtained cannot be looked into. Moreover the further question that arises for consideration is, was the Trial Court justified after the filing of the reports of the second Commissioner, in setting aside the first Commissioner's report (Ext. C5) mechanically and without considering the objections on the merits