R. M. SUNDARAM @ MEENAKSHISUNDARAM v. SRI KAYAROHANASAMY AND NEELAYADHAKSHIAMMAN TEMPLE (THROUGH ITS EXECUTIVE OFFICER)

ABCDEFGH477we are in agreement, the suit jewellery was dedicated for aspecific purpose and can only be used during the performanceof the religious ceremony during the Adipooram festival.[Para25][496-F-G]3. The claim of the appellant based on the principle ofres judicata and constructive res judicata/ Order II Rule 2 ofthe Code as the respondent/ Temple has earlier filed a suit forappointment of a receiver for taking inventory of the suitjewellery is also without merit. The respondent had filed a civilsuit in November 1981 (O.S. No. 99/1981) before theSubordinate Judge against the present appellant and hismother. It was stated that there is a separate room in theTemple called the Kudavarai which has an iron gate. Insidethe Kudavarai, there are two steel almirahs and an iron safe. The two steel almirahs contain many items of gold jewellerybelonging exclusively to the respondent/Temple and the ironsafe in the Kudavarai had 26 items of jewellery, namely thesuit jewellery, which were donated to the respondent/Templeabout 80 years back by the ancestors of ‘M’. It was furtherstated that the keys of the iron safe were with the family of‘M’ while the keys of the two almirahs were with the JointSub-Registrar, in the capacity as Double Lock Officer. Oneset of the keys of the outer door was with the Executive Officerand the other set was with the family of ‘M’. The Kudavaraicannot be accessed unless the two sets of keys were jointlyoperated to open the main door. It was stated that large itemsof jewellery were missing from the Temple premises for sometime and the then Executive Officer of the respondent/Templehad died under suspicious circumstances. Some jewellery wasfound to be missing from the Temple which was beinginvestigated by the police, and shortage of jewellery had alsobeen discovered in other temples. In these circumstances andon the instructions of the State Government, theCommissioner, under the 1959 Act, had directed all templesto verify the jewellery as per the original appraisement register. The family of ‘M’ had been requested and was served with thenotice in this regard, but had expressed their inability tocomply with the request for inspection. [Paras 26 & 27][497-A-F]R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE ABCDEFGH478SUPREME COURT REPORTS[2022] 11 S.C.R.4. In the written statement filed by the appellant, theyhad accepted use of the suit jewellery on the festive occasionsfor adorning the presiding deity but had pleaded that therewas no dedication or charity, absolute or conditional. It wassubmitted that the suit jewellery was used by the family of ‘M’.The suit jewellery was licensed to be kept in the Kudavaraiunder the control of the respondent /Temple to avoid loss onaccount of natural calamity or cyclone and tidal waves. Thesuit jewellery was kept for safe custody with the right to revokethe license. The appellant, therefore, contended that he wasentitled to remove the suit jewellery to a place of his choiceand even to stop the respondent/Temple from using the suitjewellery during Adipooram festival. As is evident, the priorsuit of 1981 arose from a very peculiar set of facts andcircumstances and the cause of action as per the plaint arecompletely unrelated to the suits being considered in thepresent appeals. In opinion of this Court, the High Court hasrightly rejected the plea of res judicata and constructive resjudicata / Order II Rule 2 of the Code. [Paras 28 & 29][497-G-498-A-C]5. General principle of res judicata under Section 11 ofthe Code contains rules of conclusiveness of judgment, butfor res judicata to apply, the matter directly and substantiallyin issue in the subsequent suit must be the same matter whichwas directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and thedecision should have attained finality. Where the former suitis dismissed by the trial court for want of jurisdiction, or fordefault of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on theground that the suit was badly framed, or on the ground of atechnical mistake, or for failure on the part of the plaintiff toproduce probate or letter of administration or successioncertificate when the same is required by law to entitle theplaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to payadditional court fee on a plaint which was undervalued, or forwant of cause of action, or on the ground that it is premature ABCDEFGH479and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in asubsequent suit. The reason is that the first suit is not decidedon merits. In the present case, the suit filed in 1981 forappointment of the receiver for preparing an inventory of thesuit jewellery was not decided on merits but was dismissed onthe ground that the respondent had prayed for mandatoryinjunction and had not made a prayer for declaration of title. Thus, the suit was dismissed for technical reasons, whichdecision is not an adjudication on merits of the dispute thatwould operate as res judicata on the merits of the matter. Further, to succeed and establish a prayer for res judicata, theparty taking the said prayer must place on record a copy of thepleadings and the judgments passed, including the appellatejudgment which has attained finality. In the present case, theappellant did not place on record a copy of the appellatejudgment and it is accepted that the second appeal filed by therespondent was dismissed, giving liberty to the respondent tofile a fresh suit with a prayer of declaration of title/endowmentin respect of the suit jewellery. The liberty granted was notchallenged by the appellant. The right to file a fresh suit to theTemple, therefore, should not be denied. The bar ofconstructive res judicata/ Order II Rule 2 of the Code is notattracted. The plea of constructive res judicata/Order II Rule2 of the Code also fails as the cause of action in the first suitfiled in 1981 was limited and predicated on account of the failureof the appellant to open the locks of the safe and the maindoor of the Kudavarai, the keys of which were available withthe appellant and required joint operation. Here again, the partyclaiming and raising the plea of constructive res judicata/OrderII Rule 2 of the Code must place on record in evidence thepleadings of the previous suit and establish the identity of thecause of actions, which cannot be established in the absenceof record of judgment and decree which is pleaded to operateas estoppel. [Paras 31-33][499-B-G; 500-A-C]6. There is some merit in the contention of the appellantthat the impugned judgment is contradictory as it has affirmedthe decree of the trial court, which was upheld by the firstR. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE ABCDEFGH480SUPREME COURT REPORTS[2022] 11 S.C.R.appellate court, accepting the plea of the respondent that thesuit for mandatory injunction filed by the appellant is notmaintainable in view of the bar under the provisions of the1959 Act. Section 63 of the 1959 Act states that the JointCommissioner or the Deputy Commissioner has the power toenquire into and decide the disputes and matters concerning“whether any property or money is a religious endowment” and“whether any property or money is a specific endowment”. Anydecision of the Joint or Deputy Commissioner in terms ofSection 63 of the 1959 Act can thereafter be challenged inappeal before the Commissioner under Section 69 of the 1959Act. Pursuant to Section 70 of the 1959 Act, a party aggrievedby an order passed by the Commissioner in respect of anymatter specified under Section 63 (including determination ofa religious or specific endowment) can be challenged beforethe court within 90 days of the receipt of the order. Further, aparty aggrieved by a decree of the court, under Section 70,can within 90 days from the date of decree, appeal to the HighCourt. In the light of the aforesaid, it can be urged that thesuit filed by the respondent would not be maintainable. Theappellant did not raise this plea, possibly because he had himselffiled a civil suit. In fact, this argument would also recoil on theappellant insofar as he has raised the plea of res judicata andconstructive res judicata/ Order II Rule 2 of the Code, for thesaid pleas would not be available in case the civil court hadlacked subject matter jurisdiction. We would have normallyallowed the appeal preferred by the appellant in the presentcase and relegated the appellant and the Temple to takerecourse to the remedy available under Section 63 of the 1959Act. However, we do not think it will be appropriate and properto permit the appellant to do so in the present case as it wouldbe a futile and useless exercise. It is crystal clear that therewas a specific endowment of the suit jewellery way back in1894 and the challenge made by the appellant has no legs tostand on and is totally devoid of merit. It is difficult to reconcilethe testimony of the appellant, in the suit filed by him, that thesuit jewellery was kept in the Kudavarai of the respondent/Temple only for the purposes of safe-keeping, with the fact ABCDEFGH481that the suit jewellery was only used for the purposes ofadorning the idol/ deity during the Adipooram festival. Theappellant eventually backtracked from this position and hastestified, in the later suit filed by the respondent/Temple, tothe effect that he is unaware on “what basis, the 26 items ofsuit ornaments (suit jewellery) for what purpose are kept in thekudavarai…I don’t directly know for what reason the suit jewelswere kept in the room in the plaintiff temple”. In thesecircumstances, we do not want another round of litigation whichwould serve no purpose. This Court also has no hesitation inholding that the findings recorded above would operate as resjudicata even if the appellant is to initiate proceedings underthe 1959 Act. [Para 35][501-F-H; 502-A-G]7. This court noted the decree passed by the trial courtin the suit filed by the respondent whereby the relief ofinjunction was declined, albeit observing that the appellant mustopen the locks and make the suit jewellery available duringthe festival season. The cross appeal filed by the respondent/Temple against rejection of its prayer of injunction wasdismissed by the first appellate court agreeing with theobservations made by the trial court regarding the endowmentof the suit jewellery. The High Court, in the impugned order, has modified the aforesaid observations of the trial court andhas also directed the appellant to hand over the keys to theJoint Commissioner, Tanjore who would perform the necessaryresponsibility of handing over the jewels during the Adipooramfestival. We feel this decree or direction is beyond what wassought by the respondent/ Temple in the plaint. In fact, to befair to the High Court, the impugned judgment also recordsthat the decree for permanent injunction as prayed for isgranted to the respondent/Temple. Accordingly, this Courtclarify and pass a decree restraining the appellant frominterfering in any manner with the right of the Templeauthorities to take out the suit jewellery from the Kudavaraiwhenever the occasion demands. In other words, the appellantwould cooperate with the request(s) made by the ExecutiveOfficer and Trustees of the respondent/Temple to open theR. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE ABCDEFGH482SUPREME COURT REPORTS[2022] 11 S.C.R.Kudavarai doors and take out the suit jewellery from the iron-safe whenever required. [Paras 36 & 37][502-H; 503-A-B, F-G]Deoki Nandan v. Murlidhar and Others AIR 1957SC 133 : [1956] 0 SCR 756 – followed. The Commissioner for Hindu Religious andCharitable Endowments, Mysore v. Sri RatnavarmaHeggade (Deceased) by his L.Rs., (1977) 1 SCC 525: [1977] 1 SCR 889; Sheodan Singh v. DaryaoKunwar (SMT) AIR 1966 SC 1332 : [1966] 3 SCR300; Gurbux Singh v. Bhooralal AIR 1964 SC 1810: [1964] 7 SCR 831; Virgo Industries (Eng.) PrivateLimited v. Venturetech Solutions Private Limited(2013) 1 SCC 625 : [2012] 7 SCR 933 – relied on.M.R. Goda Rao Sahib v. State of Madras [1966] 1SCR 643; Sri Renganathaswamy represented by itsExecutive Officer, Joint Commissioner v. P.K.Thoppulan Chettiar, Ramanuja Koodam AnandhanaTrust, represented by its Managing Trustee and Others(2020) 17 SCC 96; M.J. Thulasiraman and Anotherv. Commissioner, Hindu Religious and CharitableEndowment Administration and Another (2019) 8 SCC689 : [2019] 11 SCR 1125; Bachhaj Nahar v.NilimaMandal and Another (2008) 17 SCC 491 : [2008]14 SCR 621 – referred to. Case Law Reference[1956] SCR 756followedPara 19[1977] 1 SCR 889relied onPara 20[1966] 1 SCR 643referred toPara 21(2020) 17 SCC 96referred toPara 23[2019] 11 SCR1125referred toPara 24[1966] 3 SCR 300relied onPara 30[1964] 7 SCR 831relied onPara 33 ABCDEFGH483[2012] 7 SCR 933relied onPara 34[2008] 14 SCR 621referred toPara 36CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3964-3965 of 2009.From the Judgment and Order dated 30.06.2008 of the HighCourt of Judicature at Madras in S.A. No.829 of 2000.S.Nagamuthu, Sr. Adv., G. Ananda Selvam, Mayil Samy K.Sanchit Maheshwari, V. N. Raghupathy, Advs. for the Appellant. Amit Anand Tiwari, AAG, Vinodh Kanna B., D. Kumanan, Sheikh Fakhruddin Kalia, Advs. for the Respondent. The Judgment of the Court was delivered bySANJIV KHANNA, J.The dispute in the present appeals arises from two separate suitsin relation to (i) the dedication of 26 items of jewellery1, some of whichare embedded with diamonds and precious stones, to the deity SriNeelayadhakshi Amman of the Sri Kayarohanasamy and NeelayadhakshiAmman Temple;2 and (ii) the exclusive possession of the ‘Kudavarai’(safe vaults) of the Temple which houses the suit jewellery.2. It is the case of the appellant, R.M. Sundaram, that the suitjewellery was inherited by him as his personal property being the adoptedson of Muthuthandapani Chettiar and his wife, M. Thangammal. On 6thNovember 1985, the appellant had instituted a civil suit (O.S. No. 156/1986) before the court of the District Munsiff of Nagapattinam seeking, inter alia, a mandatory injunction directing the Temple to comply withthe undertaking given in the letter dated 4th October 1962 and therebypermit the appellant to “maintain independent and exclusive possessionand enjoyment of the Kudavarai” of the Temple. It was pleaded thatduring the lifetime of his father, Muthuthandapani Chettiar, the suitjewellery known as ‘Abaranam’, that was owned and possessed byMuthuthandapani Chettiar, was licensed to be kept in the Kudavarai ofthe Temple. The proprietary right, title and interest in the suit jewellerycontinued to vest with Muthuthandapani Chettiar, who had retainedpossession and remained the exclusive owner of the suit jewellery1 For short, ‘suit jewellery’.2 Hereinafter referred to as the ‘respondent’ or ‘Temple’.R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE ABCDEFGH484SUPREME COURT REPORTS[2022] 11 S.C.R.throughout his lifetime. By way of gratitude, Muthuthandapani Chettiar, in terms of a letter of undertaking dated 4th October 1962, had given thekeys of two external locks of the Kudavarai to the Executive Officer ofthe Temple to temporarily store the Temple jewellery, which is differentfrom the suit jewellery, in the Kudavarai. This was a temporaryarrangement, as expressly stated in the undertaking, and the Templejewellery would be shifted back to the treasury room of the Templeafter it was renovated. The plaint also refers to a civil suit filed by therespondent/Temple in the year 1981 (O.S. No. 99/1981) before theSubordinate Judge of Nagapattinam, an aspect which we would advertto in some detail later on.3. The respondent/Temple contested the suit on several groundsincluding, inter alia, the appellant’s right to file such a suit, themaintainability of the suit filed, the appellant’s status as the adopted sonon Muthuthandapani Chettiar, the appellant’s lack of title over the suitjewellery, and the custody over the keys of the Kudavarai byMuthuthandapani Chettiar being merely an honorary responsibility. Onmerits, it was contended by the Temple that the suit jewellery, namelyAbaranams, and the Temple jewellery were acquired from time to timeover the past few centuries by way of donations or endowments madeby unknown donors. The suit jewellery as well as the other Templejewels have always been in the custody, use, enjoyment and possessionof the idol/deity, Sri Neelayadhakshi Amman, only through thefunctionaries of the Temple and no other person. The suit jewellery wasdonated by the ancestors of Muthuthandapani Chettiar absolutely to theidol/deity and constitutes a specific endowment attached to the Temple. The donations have been recorded as Sri Adipoora Amman(Neelayadhakshi Amman) Thiruvabaranam Endownment. The suitjewellery is adorned by Sri Neelayadhakshi Amman deity for ten days inthe month of Adi every year marking the festival of adolescence andpuberty in a celestial and mythological sense. On this occasion, manypeople, particularly women, celebrate the festival with great enthusiasmby distributing all sorts of ‘Mangala Samans’ to all women devotees andworshippers thronging the Temple. During this festival time, the ‘Utsava’deity of Sri Neelayadhakshi Amman (popularly known as Sri AdipooraAmman) and the deity idol (Sri Neelayadhakshi Amman) used to be/aredecked and decorated in all glory and grandeur with gold and silverjewellery studded with precious stones from ‘Kireedam to Thiruvadi’and then taken out in a Temple car and ratham in grand procession ABCDEFGH485around the four streets on all ten days of the festival. The Kudavarai islocated inside the Temple and is the innermost and integral portion of theTemple. It is guarded in terms of security and operated on a system of‘Multiple Lock and Keys and Joint Control, Operation and Maintenance’(MLKJCOM), to ensure safe custody of jewellery and valuable articles. Therefore, the suit jewellery was only used on the occasion of theAdipooram festival and could not be taken out of the Kudavarai frequentlyor at will. While admitting that two keys of the external door-way of theKudavarai as well as the keys of the iron safe, wherein the suit jewellerywas kept, were with the appellant, it is stated that the management ofthe respondent/Temple was in possession of several keys, including keysof the external door-way of the Kudavarai. Apart from the woodenjewellery boxes inside the iron safe, the Kudavarai also houses the twosteel almirahs wherein the Temple jewellery and other Thiruvabaranamsare kept. These articles and the suit jewellery do not belong to any personor private individual and were/are for the use of the deity.4. With reference to the letter of undertaking dated 4th October1962, it is stated that the undertaking is a dead letter as it creates noright or privilege in favour of the appellant and in any event, Muthuthandapani Chettiar and his wife, M. Thangammal, had neithersought to enforce this letter-undertaking nor sought return of the twokeys during their lifetime. The appellant had, nearly 23 years thereafter, raised a claim in respect of the suit jewellery.5. The suit filed by the appellant was dismissed by the trial court, vide judgment dated 26th November 1990, primarily on the ground thatthe suit was not maintainable and that the undertaking was not actedupon by the appellant’s adoptive father, Muthuthandapani Chettiar. Therespondent/Temple being a religious institution under the Tamil NaduHindu Religious and Charitable Endowments Act, 1959,3 the Governmentcan frame rules regarding the custody of jewels, other valuables anddocuments of religious institutions under Section 116(2)(xii) of the 1959Act, which would also apply to the suit jewellery in the Kudavarai. Theappellant, instead of applying to the Commissioner, had filed the civil suitwhich was not maintainable under Section 108 of the 1959 Act. Theclaim for possession of Kudavarai was also barred as it interfered withthe internal administration of the Temple.6. In relation to the undertaking dated 4th October 1962, the trialcourt observed that it was never acted upon by Muthuthandapani Chettiar3 Hereinafter referred to as the ‘1959 Act’.R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH486SUPREME COURT REPORTS[2022] 11 S.C.R.prior to his death in 1969 and that the relief sought by the appellant wasbarred by limitation as it was instituted beyond the period of three yearsas stipulated in Article 113 of the Limitation Act, 1963.7. The first appeal (A.S. No. 354/1992) preferred by the appellantagainst this judgment was also dismissed by the Subordinate Judge, Nagapattinam, vide judgment dated 30th August 1993, who reiteratedthat the suit was barred under the 1959 Act and the undertaking dated4th October 1962 was not acted upon during the lifetime ofMuthuthandapani Chettiar.8. The appellant had, thereupon, preferred a second appeal (S.A.No. 1522/1993) before the High Court which has been dismissed by theimpugned judgment dated 30th June 2008.9. The impugned common judgment, however, allowed the secondappeal (S.A. No. 829/2000) preferred by the respondent/Temple whichhad arisen from a separate independent suit (O.S. No. 87/1990,renumbered as O.S. No. 56/1996) instituted by the Temple on 11th June1990 before the Subordinate Judge of Nagapattinam seeking, inter alia,a declaration of existence of specific endowment in respect of the suitjewellery in favour of the deity, Sri Neelayadhakshi Amman, and for adecree of permanent injunction restraining the appellant from interferingwith the right of the deity to take out the suit jewellery from the Kudavarai.10. The trial court vide judgment dated 17th October 1996 decreedthe suit accepting the version of the respondent/Temple that the suitjewellery was donated by the ancestors of Muthuthandapani Chettiarsince 1894. Specific reliance was placed on the Temple Account Book(Exhibit A-1), which had recorded and given details of the suit jewellery. Further, witnesses produced by the respondent/Temple had deposed thatthe suit jewellery was adorned by the Amman idol and the suit jewellerywould be taken out by Muthuthandapani Chettiar from the Kudavaraifor this purpose. It was observed that the undertaking dated 4th October1962, which was marked as Exhibit B-1, was not acted upon byMuthuthandapani Chettiar, as was recorded in the decision of the trialcourt dated 26th November 1990 in the appellant’s suit. The trial courtheld that the reliance placed by the appellant upon the adoption deed(marked as Exhibit A-6), entered into after the death of MuthuthandapaniChettiar, was of no avail as the suit jewellery had been donated to theTemple and stored within the premises of the Temple since 1894. Thesuit jewellery was not made for the benefit of the family of ABCDEFGH487Muthuthandapani Chettiar. The suit jewellery was kept inside the vaultof the respondent/Temple as it was donated by the ancestors of SriMuthuthandapani Chettiar for decorating and use of the idol Amman. The trial court was also of the view that the appellant had not been ableto prove his adoption by Muthuthandapani Chettiar and his wife, M.Thangammal, an aspect which was not examined by the High Court inthe second appeal.11. The trial court, while granting a decree of declaration, refusedto issue a decree for permanent injunction since that the Temple hadstated that two keys of the main door of the Kudavarai and the iron safewere in the possession of Muthuthandapani Chettiar and the evidenceindicated the right of possession of Muthuthandapani Chettiar to theextent of taking out and keeping back the suit jewellery as a mark ofhonour. As such, the appellant had the right of possession to give andtake back the donated suit jewellery during the Adipooram festival days. The appellant, it was observed, would render full cooperation in openingthe Kudavarai and giving the suit jewellery on the festive occasion. Granting an injunction would result in depriving the members of the familyof Muthuthandapani Chettiar from the honour of opening the doors ofKudavarai with the keys in their possession and handing over the suitjewellery for adorning the idol/ deity.12. The appellant, however, succeeded in the first appeal (A.S.No. 6/1999) before the Additional Subordinate Judge of Nagapattinamwherein the appellant court, vide judgment dated 5th August 1999, heldthat the suit filed by the respondent/Temple for declaration was barredunder Order II Rule 2 of Code of Civil Procedure, 19084 as the respondenthad earlier filed a civil suit in 1981(O.S. No. 99/1981) with a prayer forappointment of a receiver to make an inventory of the suit jewellerywhich was dismissed by the trial court on 6th September 1982. The firstappellate court held that the Temple had omitted to seek a declaration asto the ownership of the suit jewellery and as such the Temple was barredfrom filing a suit for declaration of the suit jewellery as a specificendowment. At the same time, the first appellate court held that the suitwas not barred by limitation as the suit jewellery was in custody of therespondent Temple being kept in the Kudavarai situated inside the Temple. The two keys of the Kudavarai were also with the respondent/Templeand, therefore, it was clear that the locks of the Kudavarai could be4 For short, the ‘Code’R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH488SUPREME COURT REPORTS[2022] 11 S.C.R.jointly operated by the appellant and the respondent/Temple, and the suitjewellery boxes could not be opened without joint operation. The firstappellate court examined the question of ownership and affirmativelyaccepted the case of the respondent that the suit jewellery was donatedby the ancestors of Muthuthandapani Chettiar and is an endowmentvested in the respondent/Temple. The suit jewellery was also recordedin the register, Exhibit A-1, maintained by the respondent/Temple evenin the year 1963.13. The cross-appeal (A.S. No. 40/1997) preferred by therespondent/ Temple against rejection of the prayer for grant of injunctionwas also dismissed by the first appellate court.14. Aggrieved, the respondent/Temple had preferred a secondappeal before the High Court, which was allowed by the impugnedjudgment, which as noticed above, had also decided the second appealpreferred by the appellant dismissing his suit for mandatory injunction.15. It is clear from the aforesaid discussion that, as far asendowment of the suit jewellery is concerned, there are concurrentfindings of fact by the three courts in favour of the respondent/Templeand against the appellant. As per the said findings, the suit jewellery, 26in number, had been gifted by the ancestors of Muthuthandapani Chettiarfor the specific purpose of adorning the deity, Sri Neelayadhakshi Amman, during the Adipooram festival. No doubt, the keys of the Kudavaraiwere in the custody of Muthuthandapani Chettiar and thereafter, hiswidow, M. Thangammal. However, this was more out of deference andhonour, as the ancestors of Muthuthandapani Chettiar had donated thejewellery, and not on account of personal ownership of MuthuthandapaniChettiar or his ancestors. The administration of the Temple was originallyvested with Nagai District Devasthanam Committee. Pursuant to OrderNo. G.O. 135 dated 16th January 1942, a revised scheme of HinduReligious and Charitable Endowment was implemented and therespondent/Temple came under direct administration of the HinduReligious and Charitable Endowments under the Madras Hindu ReligiousEndowments Act, 1926 enforced with effect from 19th January 1927.Subsequently, on enforcement of the 1959 Act, the management wastaken over by the Executive Officer and Trustees appointed under the1959 Act. It is to be noted that two important festivals are celebrated atthe Temple, namely Adipooram and Panchakrosam. Adipooram is a uniquefestival spread over ten days celebrating the coming of age of the goddess. ABCDEFGH489On the tenth day, after sacred bath, the idol of goddess Sri NeelayadhakshiAmman is taken in procession in a Temple car. During the Adipooramfestival, the goddess Sri Neelayadhakshi Amman is adorned with thesuit jewellery. The High Court rereferred to the evidence on record, including testimony of the witnesses, who, it is obvious, could not havedeposed as to the donation of the ‘suit jewellery’ which had taken placein or before 1894, but what was seen and noticed by the witnessesduring their lifetime. PW-3, Abadhthothranam Chettiar5, the son of anerstwhile trustee of the Temple, had testified that the ancestors ofMuthuthandapani Chettiar gave the suit jewellery to the Temple whichwas used during the ten days of the Adipooram festival to adorn the idol/deity, Sri Neelayadhakshi Amman, and could not be used by members ofthe family of Muthuthandapani Chettiar. The jewellery was never takenout of the Temple and Muthuthandapani Chettiar had the honour of takingand giving out the suit jewellery at the Adipooram festival. Members ofthe family of Muthuthandapani Chettiar had never claimed rights overthe suit jewellery. PW-4, Sundarajan6, another erstwhile trustee of theTemple during the period 1972-1977, had similarly deposed that thejewellery was only adorned by the idol/ deity, Sri Neelayadhakshi Amman, and neither Muthuthandapani Chettiar nor the members of his familyclaimed any right over the suit jewellery. There was no custom to takethe suit jewellery by the family of Muthuthandapani Chettiar outside theTemple. PW-5, Kalimuthu7, who had been closely associated withMuthuthandapani Chettiar, had affirmatively stated that the suit jewellerywas gifted by ancestors of Muthuthandapani Chettiar to be adorned bythe idol/ deity during the Adipooram festival. On this festive occasion, Muthuthandapani Chettiar would be happy to open the Kudavarai andtake out the suit jewellery for being adorned by the deity. In doing so, Muthuthandapani Chettiar would follow the practice of his ancestorsand had never claimed any right over the suit jewellery.16. It is interesting to note that the appellant does not dispute thatthe Kudavarai is located in the Temple. In his testimony in Suit No. 156/86, the appellant Sundaram as PW-1 had deposed that MuthuthandapaniChettiar had plenty of ornaments which belonged to the family, and theclaim made is that Kudavarai in the Temple, was allotted to them tokeep the ornaments for safety. The stand is ex-facie implausible and5 ‘Abathaoranam Chettiar’ in the record of evidence6 ‘Soundarajan’ in the record of evidence7 ‘Marimuthu’ in the record of evidenceR. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH490SUPREME COURT REPORTS[2022] 11 S.C.R.unbelievable, given the fact that the Temple is a public temple. Kudavaraiis not a public vault where people keep their personal jewellery, and thesuit jewellery kept in it since 1894 was always and only used for adorningthe Temple deity for ten days at the Adipooram festival.17. Referring to the documents on record, specific reference hasbeen made by the High Court to Exhibit A-1, the register containingdetails and particulars of the suit jewellery, wherein the suit jewellery(26 in number) were shown as ‘Adipooram Ambal Thiru Abaranam’. Inthe remarks column it was noted that the jewellery “are in the custodyof Mr. S.M.T.M. Muthuthandapani Chettiar of Nagapattinam”. Otherjewellery items were shown in different headings of ‘Temple Series’.The impugned judgment observes that the 26 items of suit jewellerybeing identified as ‘Adipooram Ambal Thiru Abaranam’, is a strong pieceof evidence which supports the respondent’s case. Exhibit A-1 was aregister maintained in regular course of administration of Templecontaining details and particulars of jewels of the Temple. Even in 1963,the suit jewellery had been shown as ‘Adipooram Ambal ThiruAbaranam’. Muthuthandapani Chettiar died on 21st August 1969 andhad never claimed any right on the suit jewellery during his lifetime. Reference was also made to Exhibit A-3 which indicated that therespondent/ Temple was under the administration of DevasthanamCommittee of Nagapattinam District. Thereafter, in terms of the revisedscheme dated 16th January 1942, the Temple had come under the Stateadministration, which had continued under the 1959 Act with appointmentof Executive Officer and Trustees. The High Court referred to Section29(d) of the 1959 Act in relation to preparation of register of everyreligious institution for “jewels, gold, silver, precious stones, vesselsand utensils and other movables belonging to the institution, withtheir weights and estimated value” and placed reliance on illustration(e) to Section 114 of the Indian Evidence Act, 1872 concerning thepresumption that an official act has been regularly performed, to holdthat the Exhibit A-1 is unimpeachable evidence showing that the suitjewellery are ‘Adipooram Ambal Thiru Abaranam’. The High Courtalso made reference to Exhibit B-1, the family settlement dated 26thOctober 1969, which was entered into, after the death of MuthuthandapaniChettiar, by the wife of Muthuthandapani Chettiar, M. Thangammal, and his brother’s widow, which referred to the large number of familyproperties dedicated for endowment to various temples by the family ofMuthuthandapani Chettiar. Exhibit B-1 records that Muthuthandapani ABCDEFGH491Chettiar and his ancestors were liberal in creating endowments anddedicating family properties to temples and performance of otherdharmams. Exhibit B-1 referred to the ‘Adipooram Ambal ThiruAbaranam’ and the fact that after the death of Muthuthandapani Chettiar, his wife, M. Thangammal, “had the keys of the Kudavarai and shewill hand over the jewellery during the festival sessions or wheneverrequired.”18. We are in agreement with the said findings recorded by theHigh Court. The findings are supported by the legal position on the effectof endowment, which is well settled and we would like to refer to only afew decisions.19. In Deoki Nandan v. Murlidhar and Others,8 a bench offive Judges of this Court has held that:“the true beneficiaries of religious endowments are not the idolsbut the worshippers, and that the purpose of the endowment isthe maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presentsno difficulty. The cardinal point to be decided is whether it wasthe intention of the founder that specified individuals are to havethe right of worship at the shrine, or the general public or anyspecified portion thereof. In accordance with this theory, it hasbeen held that when property is dedicated for the worship of afamily idol, it is a private and not a public endowment, as thepersons who are entitled to worship at the shrine of the deity canonly be the members of the family, and that is an ascertainedgroup of individuals. But where the beneficiaries are not membersof a family or a specified individual, then the endowment can onlybe regarded as public, intended to benefit the general body ofworshippers.xx xx xxEndowment can validly be created in favour of an idol or templewithout the performance of any particular ceremonies, providedthe settlor has clearly and unambiguously expressed his intentionin that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence ofsuch proof would not be conclusive against it.”8 AIR 1957 SC 133R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH492SUPREME COURT REPORTS[2022] 11 S.C.R.20. Following the above ratio in The Commissioner for HinduReligious and Charitable Endowments, Mysorev. Sri RatnavarmaHeggade (Deceased)by his L. Rs.,9 this Court has observed that:“Neither a document nor express words are essential for adedication for a religious or public purpose in our country. Suchdedications may be implied from user permitted for public andreligious purposes for sufficient length of time. The conduct ofthose whose property is presumed to be dedicated for a religiousor public purpose and other circumstances are taken into accountin arriving at the inference of such a dedication. Although religiousceremonies of Sankalpa and Samarpanam are relevant for provinga dedication, yet, they are not indispensable”Thus, extinction of private character of a property can be inferredfrom the circumstances and facts on record, including sufficientlength of time, which shows user permitted for religious or publicpurposes.21. Earlier, in M.R. Goda Rao Sahibv. State of Madras,10 thisCourt has observed that in an absolute dedication, the property is givenout and out to an idol or religious or charitable institution and the donordivests himself of all beneficial interests in the property comprised in theendowment. Where the dedication is partial, a charge is created on theproperty or there is a trust to receive and apply a portion of the incomefor the religious or charitable purposes. In the latter case, the propertydescends and is alienable and partible in the ordinary way, but the onlyreference is that it passes with a charge upon it. The Court had relied onthe provisions of the Madras Hindu Religious and Charitable EndowmentsAct,1951 and in particular to Section 3211 thereof, to observe that:9 (1977) 1 SCC 52510 (1966) 1 SCR 64311 Section 38(1) of the 1959 Act reads- “Section 38 - Enforcement of service or charityin certain cases -(1) Where a specific endowment attached to a math or temple consistsmerely of a charge on property and there is failure in the due performance of the serviceor charity, the trustee of the math or temple concerned may require the person inpossession of the property on which the endowment is a charge, to pay the expensesincurred or likely to be incurred in causing the service or charity to be performedotherwise. In default of such person making payment as required, the Commissioner inthe case of a specific endowment attached to a math, and the Joint Commissioner or theDeputy Commissioner, as the case may be, in the case of a specific endowment attachedto a temple, may, on the application of the trustee and after giving the person in possession,a reasonable opportunity of stating his objections in regard thereto, by order determinethe amount payable to the trustee.” ABCDEFGH493“There is no dispute that in order that there may be an endowmentwithin the meaning of the Act, the settlor must divest himself ofthe property endowed. To create an endowment he must give itand if he has given it, he of course has not retained it; he has thendivested himself of it. ….By the instrument the settlors certainlydivested themselves of the right to receive a certain part of theincome derived from the properties in question. They deprivedthemselves of the right to deal with the properties free of chargeas absolute owners which they previously were. The instrumentwas a binding instrument. This indeed is not in dispute. The rightscreated by it were, therefore, enforceable in law. The charitiescould compel the payment to them of the amount provided inSchedule B, and, if necessary for that purpose, enforce the charge. This, of course, could not be if the proprietors had retained theright to the amount or remained full owners of the property asbefore the creation of the charge….By providing that their liabilityto pay the amount would be a charge on the properties, the settlorsemphasised that they were divesting themselves of the right tothe income and the right to deal with the property as if it wasunencumbered. By creating the charge they provided a securityfor the due performance by them of the liability which theyundertook. Further Section 32 of the Act provides that where aspecific endowment to a temple consists merely of a charge onproperty, the trustees of the temple might require the person inpossession of the properties charged to pay the expenses in respectof which the charge was created. This section undoubtedly showsthat the Act contemplates a charge as an endowment.”Interpreting the said section, this Court held that specificendowment attached to a math or a temple may consist merely of acharge on the property. Therefore, in order to constitute specificendowment it is not necessary that there must be transfer of title ordivestment of the title to the property.22. For the sake of completeness, we must record that under the1926 Act, the expression ‘religious endowment’ or ‘endowment’ wasdefined vide sub-section (11) to Section 9 to mean “all property belonging to, or given or endowed for thesupport of, maths or temples or for the performance of anyservice or charity connected therewith and includes theR. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH494SUPREME COURT REPORTS[2022] 11 S.C.R.premises of maths or temples but does not include gifts ofproperty made as personal gifts or offerings to the head of amath or to the archaka or other employee of a temple”.The 1959 Act, on the other hand, defines ‘religious endowment’or ‘endowment’ in sub-section (17) to Section 6 as under:“”Religious endowment” or “endowment” means all propertybelonging to or given or endowed for the support of mathsor temples, or given or endowed for the performance of anyservice or charity of a public nature connected therewith orof any other religious charity; and includes the institutionconcerned and also the premises thereof, but does not includegifts of property made as personal gifts to the archaka, serviceholder or other employee of a religious institutionExplanation.— (1) Any inam granted to an archaka, serviceholder or other employee of a religious institution for theperformance of any service or charity in or connected witha religious institution shall not be deemed to be a personalgift to the archaka, service holder or employee but shallbe deemed to be a religious endowment. Explanation.— (2) All property which belonged to, or wasgiven or endowed for the support of a religious institution, or which was given or endowed for the performance ofany service or charity of a public nature connectedtherewith or of any other religious charity shall be deemedto be a “religious endowment” or endowment” within themeaning of this definition, notwithstanding that, before orafter the date of the commencement of this Act, the religiousinstitution has ceased to exist or ceased to be used as aplace of religious worship or instruction or the service orcharity has ceased to be performed:Provided that this Explanation shall not be deemed toapply in respect of any property which vested in anyperson before the 30th September 1951, by theoperation of the law of limitation;”Sub-section (19) to Section 6 defines ‘specific endowment’ readsas under: ABCDEFGH495“”specific endowment” means any property or money endowedfor the performance of any specific service or charity in amath or temple or for the performance of any other religiouscharity, but does not include an inam of the nature describedin Explanation (1) to clause (17);Explanation. — (1) Two or more endowments of the naturespecified in this clause, the administration of which isvested in a common trustee, or which are managed undera common scheme settled or deemed to have been settledunder this Act, shall be construed as a single specificendowment for the purposes of this Act ;Explanation.— (2) Where a specific endowment attachedto a math or temple is situated partly within the State andpartly outside the State, control shall be exercised inaccordance with the provisions of this Act over the part ofthe specific endowment situated within the State;”In the context of the present case and the facts recorded above, it is clear that the suit jewellery was a ‘specific endowment’ for theperformance of the specific service of adorning the deity, SriNeelayadhakshi Amman, to be taken out in the Temple car and rathamin a grand procession during the Adipooram festival. Further, as explainedbelow, it was a charity in favour of the Temple and was for performanceof a religious charity. The involvement of the family of the appellant waslimited and restricted to retaining the keys of the Kudavarai and the ironsafe which were to be opened at the time of the festival of Adipooramand the suit jewellery was to be taken out for the specific purpose ofadorning the deity, Sri Neelayadhakshi Amman.23. Lastly, we would refer to a recent judgment of this Court inIdol of Sri Renganathaswamy represented by its Executive Officer, Joint Commissioner v.P.K. Thoppulan Chettiar, Ramanuja KoodamAnandhana Trust, represented by its Managing Trustee and Others12which draws a distinction between a ‘religious charity’ as defined insub-section (16) to Section 6 from a charity associated with a finitegroup of identifiable persons, which is a charity of a private character. Itwas observed that:“for a charity to constitute a “religious charity”, there is norequirement for the public charity to be connected with a particular12 (2020) 17 SCC 96R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH496SUPREME COURT REPORTS[2022] 11 S.C.R.temple or a math. In terms of the statutory definition, for a charityto constitute a “religious charity” under the 1959 Act, two conditionsmust be met. First, it must be a “public charity” and second, itmust be “associated with” a Hindu festival or observance of areligious character. If these two conditions are satisfied, a charityis a “religious charity (emphasis added)xx xx xxWhere the beneficiaries of a trust or charity are limited to a finitegroup of identifiable individuals, the trust or charity is of a privatecharacter. However, where the beneficiaries are either the publicat large or an amorphous and fluctuating body of persons incapableof being specifically identifiable, the trust or charity is of a publiccharacter.”24. This decision has referred to an earlier decision in M.J.Thulasiraman and Another v.Commissioner, Hindu Religious andCharitable Endowment Administration and Another,13 which hadexamined and elucidated on the words ‘endow’ and ‘endowment’ tostate that they relate to idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. The purpose shouldbe with respect to religion or charity. In our opinion, the said tests aresatisfied in the present case and the specific endowment of the suitjewellery as religious charity is established beyond doubt.25. Therefore, in view of the judgments quoted above and theaforesaid statutory provisions, it must be held that the case of the appellantthat there was no endowment or specific endowment must fail and hasno legs to stand on. The dedication of the suit jewellery does not requirean express dedication or document, and can be inferred from thecircumstances, especially the uninterrupted and long possession of thesuit jewellery by the respondent/Temple. The private character of thejewels had extinguished long back and the appellant has no basis toclaim that the suit jewellery was inherited by him from his adoptive parents. The endowment is clearly public in nature and for the purposes ofperforming religious ceremonies. As confirmed by three courts, withwhich we are in agreement, the suit jewellery was dedicated for a specificpurpose and can only be used during the performance of the religiousceremony during the Adipooram festival.13 (2019) 8 SCC 689 ABCDEFGH49726. The claim of the appellant based on the principle of res judicataand constructive res judicata/ Order II Rule 2 of the Code14 as therespondent/ Temple has earlier filed a suit for appointment of a receiverfor taking inventory of the suit jewellery is also without merit.27. The respondent had filed a civil suit in November 1981 (O.S.No. 99/1981) before the Subordinate Judge, Nagapattinam against thepresent appellant, R. M. Sundaram, and his mother, M. Thangammal. Itwas stated that there is a separate room in the Temple called theKudavarai which has an iron gate. Inside the Kudavarai, there are twosteel almirahs and an iron safe. The two steel almirahs contain manyitems of gold jewellery belonging exclusively to the respondent/Templeand the iron safe in the Kudavarai had 26 items of jewellery, namely thesuit jewellery, which were donated to the respondent/Temple about 80years back by the ancestors of Muthuthandapani Chettiar. It was furtherstated that the keys of the iron safe were with the family ofMuthuthandapani Chettiar while the keys of the two almirahs were withthe Joint Sub-Registrar, Nagapattinam, in the capacity as Double LockOfficer. One set of the keys of the outer door was with the ExecutiveOfficer and the other set was with the family of Muthuthandapani Chettiar. The Kudavarai cannot be accessed unless the two sets of keys werejointly operated to open the main door. It was stated that large items ofjewellery were missing from the Temple premises for some time and thethen Executive Officer of the respondent/Temple had died undersuspicious circumstances. Some jewellery was found to be missing fromthe Temple which was being investigated by the police, and shortage ofjewellery had also been discovered in other temples. In thesecircumstances and on the instructions of the State Government, theCommissioner, under the 1959 Act, had directed all temples to verify thejewellery as per the original appraisement register. The family ofMuthuthandapani Chettiar had been requested and was served with thenotice in this regard, but had expressed their inability to comply with therequest for inspection.28. In the written statement filed by the appellant, they hadaccepted use of the suit jewellery on the festive occasions for adorningthe presiding deity but had pleaded that there was no dedication or charity,14 “Order II - Suit to include the whole claim.—…(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, orintentionally relinquishes, any portion of his claim, he shall not afterwards sue inrespect of the portion so omitted or relinquished.”R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH498SUPREME COURT REPORTS[2022] 11 S.C.R.absolute or conditional. It was submitted that the suit jewellery was usedby the family of Muthuthandapani Chettiar. The suit jewellery waslicensed to be kept in the Kudavarai under the control of the respondent/Temple to avoid loss on account of natural calamity or cyclone and tidalwaves. The suit jewellery was kept for safe custody with the right torevoke the license. The appellant, therefore, contended that he wasentitled to remove the suit jewellery to a place of his choice and even tostop the respondent/Temple from using the suit jewellery duringAdipooram festival.29. As is evident, the prior suit of 1981 arose from a very peculiarset of facts and circumstances and the cause of action as per the plaintare completely unrelated to the suits being considered in the presentappeals. In our opinion, the High Court has rightly rejected the plea ofres judicata and constructive res judicata / Order II Rule 2 of theCode.30. This Court in Sheodan Singh v. Daryao Kunwar (SMT)15has laid down that the following conditions must be satisfied to constitutea plea of res judicata:“(i) The matter directly and substantially in issue in the subsequentsuit or issue must be the same matter which was directly andsubstantially in issue in the former suit;(ii) The former suit must have been a suit between the sameparties or between parties under whom they or any of them claim;(iii) The parties must have litigated under the same title in theformer suit;(iv) The court which decided the former suit must be a courtcompetent to try the subsequent suit or the suit in which suchissue is subsequently raised; and(v) The matter directly and substantially in issue in the subsequentsuit must have been heard and finally decided by the court in thefirst suit. Further Explanation 1 shows that it is not the date onwhich the suit is filed that matters but the date on which the suit isdecided, so that even if a suit was filed later, it will be a formersuit if it has been decided earlier. In order therefore that thedecision in the earlier two appeals dismissed by the High Court15 AIR 1966 SC 1332 ABCDEFGH499operates as res judicata it will have to be seen whether all the fiveconditions mentioned above have been satisfied.”31. General principle of res judicata under Section 11 of the Codecontains rules of conclusiveness of judgment, but for res judicata toapply, the matter directly and substantially in issue in the subsequent suitmust be the same matter which was directly and substantially in issue inthe former suit. Further, the suit should have been decided on merits andthe decision should have attained finality. Where the former suit isdismissed by the trial court for want of jurisdiction, or for default of theplaintiff’s appearance, or on the ground of non-joinder or mis-joinder ofparties or multifariousness, or on the ground that the suit was badlyframed, or on the ground of a technical mistake, or for failure on the partof the plaintiff to produce probate or letter of administration or successioncertificate when the same is required by law to entitle the plaintiff to adecree, or for failure to furnish security for costs, or on the ground ofimproper valuation, or for failure to pay additional court fee on a plaintwhich was undervalued, or for want of cause of action, or on the groundthat it is premature and the dismissal is confirmed in appeal (if any), thedecision, not being on the merits, would not be res judicata in asubsequent suit.16 The reason is that the first suit is not decided on merits.32. In the present case, the suit filed in 1981 for appointment ofthe receiver for preparing an inventory of the suit jewellery was notdecided on merits but was dismissed on the ground that the respondenthad prayed for mandatory injunction and had not made a prayer fordeclaration of title. Thus, the suit was dismissed for technical reasons, which decision is not an adjudication on merits of the dispute that wouldoperate as res judicata on the merits of the matter. Further, to succeedand establish a prayer for res judicata, the party taking the said prayermust place on record a copy of the pleadings and the judgments passed, including the appellate judgment which has attained finality. In the presentcase, the appellant did not place on record a copy of the appellate judgmentand it is accepted that the second appeal filed by the respondent wasdismissed, giving liberty to the respondent to file a fresh suit with a prayerof declaration of title/endowment in respect of the suit jewellery. Theliberty granted was not challenged by the appellant. The right to file afresh suit to the Temple, therefore, should not be denied. The bar ofconstructive res judicata/ Order II Rule 2 of the Code is not attracted.16 Sheodan Singh v. Daryao Kunwar (SMT) AIR 1966 SC 1332R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH500SUPREME COURT REPORTS[2022] 11 S.C.R.33. The plea of constructive res judicata/Order II Rule 2 of theCode also fails as the cause of action in the first suit filed in 1981 waslimited and predicated on account of the failure of the appellant to openthe locks of the safe and the main door of the Kudavarai, the keys ofwhich were available with the appellant and required joint operation. Here again, the party claiming and raising the plea of constructive resjudicata/Order II Rule 2 of the Code must place on record in evidencethe pleadings of the previous suit and establish the identity of the causeof actions, which cannot be established in the absence of record ofjudgment and decree which is pleaded to operate as estoppel. In thisregard, we would like to refer to judgment of this Court in GurbuxSingh v. Bhooralal17 wherein it has been observed:“In order that a plea of a Bar under Order 2 Rule 2(3) of the CivilProcedure Code should succeed the defendant who raises theplea must make out; (i) that the second suit was in respect of thesame cause of action as that on which the previous suit was based;(2) that in respect of that cause of action the plaintiff was entitledto more than one relief; (3) that being thus entitled to more thanone relief the plaintiff, without leave obtained from the Court omittedto sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would haveto establish primarily and to start with, the precise cause of actionupon which the previous suit was filed, for unless there is identitybetween the cause of action on which the earlier suit was filedand that on which the claim in the latter suit is based there wouldbe no scope for the application of the bar. No doubt, a relief whichis sought in a plaint could ordinarily be traceable to a particularcause of action but this might, by no means, be the universal rule.As the plea is a technical bar it has to be established satisfactorilyand cannot be presumed merely on basis of inferential reasoning.It is for this reason that we consider that a plea of a bar underOrder 2 Rule 2 of the Civil Procedure Code can be establishedonly if the defendant files in evidence the pleadings in the previoussuit and thereby proves to the Court the identity of the cause ofaction in the two suits. Just as in the case of a plea of res judicata which cannot beestablished in the absence on the record of the judgment and decree17 AIR 1964 SC 1810 ABCDEFGH501which is pleaded as estoppel, we consider that a plea under Order2 Rule 2 of the Civil Procedure Code cannot be made out excepton proof of the plaint in the previous suit the filing of which is saidto create the bar. As the plea is basically founded on the identityof the cause of action in the two suits the defence which raisesthe bar has necessarily to establish the cause of action in theprevious suit. The cause of action would be the facts which theplaintiff had then alleged to support the right to the relief that heclaimed.”34. Reiterating the above principle, this Court in Virgo Industries(Eng.) Private Limited v. Venturetech Solutions Private Limited18observed that:“The object behind the enactment of Order 2 Rules 2(2) and (3)CPC is not far to seek. The Rule engrafts a laudable principlethat discourages/prohibits vexing the defendant again and againby multiple suits except in a situation where one of the severalreliefs, though available to a plaintiff, may not have been claimedfor a good reason. A later suit for such relief is contemplated onlywith the leave of the court which leave, naturally, will be grantedupon due satisfaction and for good and sufficient reasons.xx xx xxThe cardinal requirement for application of the provisions containedin Order 2 Rules 2(2) and (3), therefore, is that the cause of actionin the later suit must be the same as in the first suit.”35. There is some merit in the contention of the appellant that theimpugned judgment is contradictory as it has affirmed the decree of thetrial court, which was upheld by the first appellate court, accepting theplea of the respondent that the suit for mandatory injunction filed by theappellant is not maintainable in view of the bar under the provisions ofthe 1959 Act. Section 63 of the 1959 Act states that the JointCommissioner or the Deputy Commissioner has the power to enquireinto and decide the disputes and matters concerning “whether anyproperty or money is a religious endowment”and “whether anyproperty or money is a specific endowment”. Any decision of theJoint or Deputy Commissioner in terms of Section 63 of the 1959 Actcan thereafter be challenged in appeal before the Commissioner under18 (2013) 1 SCC 625R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH502SUPREME COURT REPORTS[2022] 11 S.C.R.Section 69 of the 1959 Act. Pursuant to Section 70 of the 1959 Act, aparty aggrieved by an order passed by the Commissioner in respect ofany matter specified under Section 63 (including determination of areligious or specific endowment) can be challenged before the courtwithin 90 days of the receipt of the order. Further, a party aggrieved bya decree of the court, under Section 70, can within 90 days from thedate of decree, appeal to the High Court. In the light of the aforesaid, itcan be urged that the suit filed by the respondent would not bemaintainable. The appellant did not raise this plea, possibly because hehad himself filed a civil suit. In fact, this argument would also recoil onthe appellant insofar as he has raised the plea of res judicata andconstructive res judicata/ Order II Rule 2 of the Code, for the saidpleas would not be available in case the civil court had lacked subjectmatter jurisdiction. We would have normally allowed the appeal preferredby the appellant in the present case and relegated the appellant and theTemple to take recourse to the remedy available under Section 63 of the1959 Act. However, we do not think it will be appropriate and proper topermit the appellant to do so in the present case as it would be a futileand useless exercise. It is crystal clear that there was a specificendowment of the suit jewellery way back in 1894 and the challengemade by the appellant has no legs to stand on and is totally devoid ofmerit. It is difficult to reconcile the testimony of the appellant, in the suitfiled by him, that the suit jewellery was kept in the Kudavarai of therespondent/Temple only for the purposes of safe-keeping, with the factthat the suit jewellery was only used for the purposes of adorning theidol/ deity during the Adipooram festival. The appellant eventuallybacktracked from this position and has testified, in the later suit filed bythe respondent/Temple, to the effect that he is unaware on “what basis, the 26 items of suit ornaments (suit jewellery) for what purpose arekept in the kudavarai…I don’t directly know for what reason thesuit jewels were kept in the room in the plaintiff temple”. In thesecircumstances, we do not want another round of litigation which wouldserve no purpose. We also have no hesitation in holding that the findingsrecorded above would operate as res judicata even if the appellant is toinitiate proceedings under the 1959 Act.36. We have noted the decree passed by the trial court in the suitfiled by the respondent whereby the relief of injunction was declined, albeit observing that the appellant must open the locks and make thesuit jewellery available during the festival season. The cross appeal filed ABCDEFGH503by the respondent/Temple against rejection of its prayer of injunctionwas dismissed by the first appellate court agreeing with the observationsmade by the trial court regarding the endowment of the suit jewellery. The High Court, in the impugned order, has modified the aforesaidobservations of the trial court and has also directed the appellant to handover the keys to the Joint Commissioner, Tanjore who would performthe necessary responsibility of handing over the jewels during theAdipooram festival. We feel this decree or direction is beyond what wassought by the respondent/ Temple in the plaint. This court in BachhajNahar v. Nilima Mandal and Another19 has clearly stipulated the limitsof a court to grant reliefs beyond the prayer and pleadings of the partiesand observed that:“It is fundamental that in a civil suit, relief to be granted can beonly with reference to the prayers made in the pleadings. Thatapart, in civil suits, grant of relief is circumscribed by various factorslike court fee, limitation, parties to the suits, as also grounds barringrelief, like res judicata, estoppel, acquiescence, non-joinder ofcauses of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whateverbe the relief that is prayed, the court can on examination of factsgrant any relief as it thinks fit. In a suit for recovery of rupees onelakh, the court cannot grant a decree for rupees ten lakhs. In asuit for recovery possession of property ‘A’, court cannot grantpossession of property ‘B’. In a suit praying for permanentinjunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily dependson the pleadings, prayer, court fee paid, evidence let in, etc.”37. In fact, to be fair to the High Court, the impugned judgmentalso records that the decree for permanent injunction as prayed for isgranted to the respondent/Temple. Accordingly, we clarify and pass adecree restraining the appellant from interfering in any manner with theright of the Temple authorities to take out the suit jewellery from theKudavarai whenever the occasion demands. In other words, the appellantwould cooperate with the request(s) made by the Executive Officer andTrustees of the respondent/Temple to open the Kudavarai doors andtake out the suit jewellery from the iron-safe whenever required.38. Accordingly, the final order and directions issued by the trialcourt in its decision dated 17th October 1996 in the respondent’s suit19 (2008) 17 SCC 491R. M. SUNDARAM v. SRI KAYAROHANASAMY ANDNEELAYADHAKSHI AMMAN TEMPLE [SANJIV KHANNA, J.] ABCDEFGH504SUPREME COURT REPORTS[2022] 11 S.C.R.(Original Suit No.56/96) and the first appellate court rejecting the Temple’sprayer for injunction is set aside, and a decree of injunction is passed inthe aforesaid terms. The respondent/Temple would be entitled to file anapplication for execution of the decree of injunction in case of non-compliance and violation of the decree. Further, and in case the appellantfails to honour the commitment made and followed, that is, to open thedoors of the Kudavarai and the safe to take out the suit jewellerywhenever required by the Temple, it will be open to the respondent totake steps and initiate proceedings under the 1959 Act or by way of acivil suit as permitted in law, in which event the authorities/court wouldconsider passing an order directing the appellant to hand over the keysof the door of the Kudavarai and the iron safe; As any failure to abide bythe convention and ‘the charge’, which forms the basis of this order, would be a fresh or recurring cause of action, and the plea of limitationor Order II Rule 2 of the Code would not apply.39. It is to be noted in the impugned judgment that one of theitems in the suit jewellery (item no. 14) is missing, and a review of theevidence on record reflects that it is with the appellant. The appellantmust surrender and give physical possession of the said item to therespondent/ Temple within 30 days from the date of pronouncement ofthis judgment. In case, the appellant does not give possession of the saiditem, it would be open for the respondent/ Temple to initiate civil as wellas criminal proceedings in accordance with law. In case any suchproceeding is initiated, the same would be examined on merits, thoughthe findings recorded herein would be binding. The appellant would havethe right to raise all defences as are available with him under law.40. Accordingly, we dismiss the appeals and uphold the judgmentof the High Court affirming the decree of declaration passed by trialcourt in Suit No. 56/96, which was also upheld by the first appellatecourt, and thereby confirm existence of specific endowment known asAdipooram Thiruvabaranam comprising of the 26 items of jewellerymentioned in the plaint, as endowed in favour of Sri NeelayadhakshiAmman, the presiding deity of the Temple. The decree of injunction aspassed by the High Court, it is clarified, is in the terms of the prayermade in the suit (OS No.56/96) and also is in terms of this judgment. There would be no order as to costs. Ankit GyanAppeals dismissed.(Assisted by : Rahul Rathi, LCRA)