A.S.Krishnan v. N.S.Venkatarama Pillai (deceased)2.The Commissioner, H.R.& C.E., Madras-34.3.Kannammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.03.2007CORAMTHE HONOURABLE MR. JUSTICE P.JYOTHIMANIAppeal Suit No. 958 of 1993A.S.Krishnan . Appellant(Plaintiff)Versus1.N.S.Venkatarama Pillai (deceased)2.The Commissioner, H.R.& C.E., Madras-34.3.Kannammal, W/o.Late N.S.Venkatarama Pillai4.Chennammal )5.Selvarangan )6.Gomathi )Daughters of Sons of 7.Gokulavanan )Late N.S.Venkatarama Pillai8.Vijaya )9.Sengamalam )10.Shanthi )11.Indhira ). . Respondents(Defendants) (RR3 to RR11 are brought on record as LRs of the deceased first respondent as per the order of this Court in C.M.P.No.227 to 229 of 2007 dated 24.03.2007) Prayer: This appeal suit is preferred against the decree andjudgment of the Court of the subordinate Judge, Dharmapuri madein O.S.No.223 of 1989 dated 15.07.1991.For Appellant :Mr.T.L.Ramamohan Senior Counsel forMr.M.K.JayaramanFor Respondents :Mr.W.C.Thiruvengadam for R1, and R3 to R11 Mr.M.R.Murugesan for R2 Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThe unsuccessful plaintiff in the trial Court is theappellant in this first appeal. The plaintiff filed a statutorysuit under Section 70(2) of Hindu Religious and CharitableEndowment Act (hereinafter referred as the Act) challenging theorder of the second defendant, the Commissioner of H.R. & C.E.dated 5.5.88 passed in A.P.No.27/87 and also for a permanentinjunction from interfering with the management of the suittemple and its properties.2.It is seen that as per the provisions of the the Act, thesecond defendant has contested that the plaintiff was not thehereditary trustee in respect of the suit temple situated in themidst of the ThenPennar River in T.Ammapet, Harur Taluk,Dharmapuri District. 3.The Deputy Commissioner of H.R. & C.E. Department hasoriginally passed an order on 13.12.86 declaring the firstdefendant in the suit as the hereditary trustee. Thereafter, theplaintiff filed an appeal before the second defendant inA.P.No.27/87 and the second defendant, the Commissioner, by hisorder dated 5.5.88 has confirmed the earlier order of the DeputyCommissioner of H.R. & C.E thereby holding that the firstdefendant is the hereditary trustee of the said temple. It is asagainst the said order, the plaintiff has filed the abovestatutory suit challenging the order of the second defendantdated 5.5.88 as per Section 70 of the Act.4.The said suit was defended by the first defendant on meritsand also on other defence that the suit is barred by limitation,apart from the further contention that the suit filed withoutissuing notice under Section 80 CPC is not maintainable. Thetrial Court has framed four issues namely;i)Whether the suit is barred bylimitation,ii) Whether the Court fee has been paidproperly,iii)Whether the plaintiff is entitled forcancellation of the order of the second respondentdated 5.5.88 passed in A.P.No.27/87 andiv)Whether the plaintiff is entitled forpermanent injunction.5.The plaintiff has examined 9 witnesses including himselfand marked various documents Ex.A1 to Ex.A29. The first https://hcservices.ecourts.gov.in/hcservices/ defendant also examined himself and marked various documentsEx.B1 to Ex.B9. However, the second defendant remained exparte.6. On consideration of the oral and documentary evidence, thetrial Court has found that the suit is not barred by limitationand the trial Court has come to the finding in respect of theCourt fee in favour of the plaintiff. As far as the fourth issueregarding the prayer of injunction, the trial Court having foundthat the H.R. & C.E. Officials are in possession of the templeand the plaintiff is not in possession, hold that the plaintiffis not entitled for injunction. In respect of the third issuewhile dealing with the validity or otherwise of the order of thesecond defendant dated 5.5.88 passed in A.P.No.27/87, the trialCourt has held that the first defendant is not the hereditarytrustee and in that view of the matter held that the order of thesecond defendant dated 5.5.88 declaring that the first defendantas hereditary trustee of the temple is not valid in law decidingthe issue in favour of the plaintiff. After giving decisions onthese various issues on merit, based on the subsequent additionalissues framed about the maintainability of the suit in theabsence of a notice under Section 80 CPC, the trial court relyingupon the judgment cited on behalf of the first defendantreported in 1989 TNLJ 1(ARULMIGHU RANGANATHASWAMY DEVASTHANAMSRIRANGAM Vs. HIS HOLINESS SRIVAN SATAGOP SRI VEDANTHA DESIKARYATHINDRA MAHADESIKAN H.T. VEDANTHA DESIKAR SANNADHI & OTHERS)has held that in the absence of the notice under Section 80 CPCbefore filing the suit against the H.R. & C.E department, thesuit is not maintainable and in view of the same, the suit wasdismissed. It is against the said judgment, dismissing the suit,the plaintiff has filed the first appeal. It is true that in sofar as it relates to the finding of the trial Court regarding theabove said third issue i.e. about the validity of the order ofthe second defendant, the Commissioner dated 5.5.1988 held thatthe order of the Commissioner is not valid and therefore, thefirst defendant is not a hereditary trustee, as against which thefirst defendant has not filed any cross objection. 7.The learned senior counsel appearing for the appellantwould contend placing reliance on the judgment of the DivisionBench of this Court in THOLAPPA IYENGAR, ALIAS ALAGAR IYENGAR V.THE EXECUTIVE OFFICER, SRI KALLALAGAR DEVASTHANAM, ALAGARKOIL,MADURAI ETC AND 7 OTHERS reported in 1993-2-L.W.537, tosubstantiate his contention that by the judicial consensus ithas been settled that in respect of the statutory suit filedunder Section 70 of the Act notice under Section 80 CPC is notnecessary. 8.As pointed out by the learned senior counsel, the DivisionBench in the said judgment has held that the judicial consensus https://hcservices.ecourts.gov.in/hcservices/ on the issue stating that a notice under Section 80 CPC is notrequired in respect of statutory suits. The decisions of theDivision Bench in the the above said suit is as follows;"On the basis of the judicial consensusthus we are in a position to say that a noticeunder S.80, of the Code of Civil Procedure,1908 is unnecessary if, having regard to thenature of the suit and the capacity and thecontext in which public officers have beenimpleaded, it is found that no purpose can beserved by notice to such officers. The factthat the officer concerned has actedjudicially or quasi-judicially may be one suchfact which will lead to the conclusion thatthe purpose of the suit is not to sue theofficer for any such act done by him in hisofficial capacity, which shall attract S.80,of the Code of Civil Procedure,1908. The factthat a special procedure is created and aspecial jurisdiction is conferred for acertain type of adjudication upon a publicofficer and in that official capacity he isrequired to decide a dispute or a matter and asuit is provided as a remedy under the SpecialAct for the cancellation or modification ofthe order of such public officer shall also bea fact showing that such act done by suchpublic officer in his official capacity willnot attract S.80, of the Code of CivilProcedure, 1908. As the Supreme Court hassaid, the provisions in S.80, of the Code ofCivil Procedure, 1908 are not intended to beused as booby-traps against the ignorantilliterate persons, but are intended toadvance justice by affording on the one hand aperson intending to sue the Government or apublic officer in his official capacityopportunity to demand from the Government orsuch public officer redressal of his grievancewithin two months next after notice, and onthe other hand to provide to the government orthe officer concerned opportunity to considerwhether the Government or the officer shouldcontest the claim and/or to grant the reliefas asked for and thus avoid unnecessarylitigation. The scheme of the suit under S.70of the Endowments Act, in particular, leavesno option with the Commissioner to rescind, https://hcservices.ecourts.gov.in/hcservices/ review or recall his order. Once this is theposition, it is unimaginable that a notice isnecessary to afford to the Commissioneropportunity to consider the redressal of thegrievances of the person who sought relief byway of a suit under S.70(1) of the endowmentsAct."9.In view of the above said settled legal position, I have nohesitation to conclude that the decision arrived at by thelearned trial Judge in holding that the suit is not maintainablefor want of notice under Section 80 CPC is unsustainable. In viewof the same, the decision in that regard is set aside. There isone other issue as pointed out by the learned counsel appearingfor the respondents 1 to 10 that in spite of the fact that thetrial Court has dismissed the suit, it has gone into the meritsof the case to hold that the impugned order which was challengedin the suit is invalid. On the other hand, the learned counselappearing for the respondents would submit that in all fairness,the trial Court should have decided the maintainability of thesuit as a primary issue. Therefore, the order of the trial Courtin deciding merit of the case holding that the impugned order ofthe second respondent is invalid which is in favour of theplaintiff but at the same time dismissing the suit for want ofnotice under Section 80 CPC cannot be sustained especially in thecircumstances that as per the settled legal position, Section 80CPC notice is not required. On considering the contentions raisedby the learned senior counsel appearing for the appellant as wellas the learned counsel appearing for the respondents, since Ihave already come to the conclusion that the decision of thetrial Court in dismissing the suit for want of notice underSection 80 CPC is not valid and therefore it is set aside, I amof the considered view that since on the maintainability issue ofthe suit, now it is held that the suit is maintainable, thematter has to be remanded back to the trial Court for a freshtrial on the merit of the case by giving opportunities to boththe parties for which course of action there cannot be anyobjection. In view of the above said facts, the judgment anddecree of the trial Court passed in O.s.No.223/89 dated 15.7.1991is set aside and the matter is remanded back to the trial Courtfor fresh trial to decide about the validity or otherwise of the https://hcservices.ecourts.gov.in/hcservices/ impugned order of the second respondent dated 5.5.88 by givingopportunity to the parties and the trial Court is directed tocomplete the trial within a period of 6 months from the date ofreceipt of a copy of this order. The fist appeal stands allowed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar jikrTo1.The Subordinate Judge,Dharmapuri.2.The Record Keeper,VR Section, High Court, Madras.+1cc to Mr.K.Jayaraman,Advocate SR 18760+1cc to Mr.W.C.Thiruvengadam, Advocate Sr 18469+1cc to Govt. Pleader Sr 18597VC (CO)km/18.4.Appeal Suit No.958 of 1993