Writ Petition No. 47447 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:13512 WP No. 47447 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 47447 OF 2017 (GM-CPC) BETWEEN: SRI. A. DINESH KUMAR AGED ABOUT 49 YEARS S/O SRI JEEVANDAR KUMAR ANADKA HOUSE, PUTHIGE VILLAGE, POST MITHABAIL - 574 226 MANGALORE TALUK, D.K. (BY SRI. CHANDRANATH ARIGA K.,ADVOCATE) …PETITIONER Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA AND: 1. SRI B. KEERTHIVARMA SHETTY AGED ABOUT 52 YEARS S/O LATE B. NAGAKUMAR SHETTY, 6-98A,"YASHODHA", BETKERI, PRANTHYA VILLAGE, MOODABIDRI, MANGALORE TALUK-574 227. 2. SRI. SUDESH KUMAR PATNA SHETTY S/O JEEVANDAR KUMAR AGED ABOUT 48 YEARS PATNASHETTY HOUSE, JAIN PETE MOODABIDRI, MANGALORE TALUK.
Legal Reasoning
the further observation regarding judgment of this Court in the case of SRI. S. DHARMASAMRAJYA, (supra) not being applicable, learned counsel for the petitioner submits that Division Bench dealt only with regard to the validity/legality or otherwise of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and the Religious Endowments Act, 1863 or its applicability were not the subject matter. Thus, he submits that on all these three counts the Trial Court erred in holding that it had jurisdiction to entertain the suit without reference to the aforesaid position of law. 5. In response, learned counsel for the respondent/plaintiff submits that the Trial Court in the impugned order has taken note of the provisions of Section 9 of CPC which empowers the Court to try all suits of civil nature. He further submits that there is no express bar under the Religious Endowments Act, 1863 from the Trial Court entertaining the suit of this nature. Thus, he submits there is no infirmity in the order. 6. Heard. Perused the records. - 7 - NC: 2025:KHC:13512 WP No. 47447 of 2017 7. There is no dispute with regard to the fact that the issue involved in the matter is covered under the provisions of the Religious Endowments Act, 1863. Section 2 of the Religious Endowments Act defining jurisdictions of the Courts to try the lis arising out of said Act, reads as under; "2. Interpretation-clause.— In this Act,— “Civil Court” and “Court”.—The words “Civil Court” and “Court” shall [save as provided in section 10] mean the principal Court of original civil jurisdiction in the district in which [or any other Court empowered in that behalf by the State Government] within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate, relating to which, or to the endowment whereof, any suit shall be instituted or application made under the provisions of this Act." 8. Clearly the term “Civil Court” and “Court” referred to under the aforesaid Section refers to “Principal Court of Original Civil jurisdiction in the Districts". 9. Section 14 of the Karnataka Civil Courts Act, 1964 defines the jurisdiction of the District Court, which reads as under; "14. Jurisdiction of District Court.- (1) The District Court shall be deemed to be the Principal Civil Court of original jurisdiction within the local limits of its jurisdiction. - 8 - NC: 2025:KHC:13512 WP No. 47447 of 2017 (2) Subject to the provisions of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), the jurisdiction of a District Court shall extend to all original suits and proceedings of a civil nature." 10. Reading of the aforesaid two sections makes it clear District Court shall be deemed to be the Principal Civil Court of Original jurisdiction and since a specific reference is made under the Religious Endowments Act, 1863 to the Principal Court of original jurisdiction, it has to be construed to mean that only the District Court which has jurisdiction to entertain the disputes arising and requiring consideration under the Act, 1863. 11. As regards the reference made by the Trial Court to judgment of the Division Bench of this Court in the case of SHRI SAHASRA LINGESHWARA TEMPLE (supra) and the judgment of the Co-ordinate Bench of this Court in SRI. S. DHARMASAMRAJYA's case (supra), as rightly pointed out by the learned counsel for the petitioner the judgment in the case of SHRI SAHASRA LINGESHWARA TEMPLE dealt with the validity and legality of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and not with - 9 - NC: 2025:KHC:13512 WP No. 47447 of 2017 regard to the effect of repeal of the Religious Endowments Act, 1863. 12. The Co-ordinate Bench of this Court in the case of SRI.S.DHARMASAMRAJYA (supra) at paragraphs 6, 7, 8 and 9 has held as under; in the present case did not arise
Arguments
3. SWASTHI SRI. CHARUKEERTHI BHATTARAKA PANDITHACHARYA SWAMIJI JAINA MUTT, MOODABIDRI-574 227 MANGALURU TALUK. - 2 - NC: 2025:KHC:13512 WP No. 47447 of 2017 4. SMT. MALATHI S/O LATE B. CHANDRAJA SHETTY AGED ABOUT 87 YEARS, BETKERI HOUSE, BETKERI ROAD, MOODABIDRI-574 227 MANAGALURU TALUK. 5. SRI. B. RAGHUCHANDRA SHETTY S/O LATE T. KUMARAYYA SHETTY AGED ABOUT 80 YEARS NEAR THOUSAND PILLAR JAIN BASADI POST: MOODABIDIR - 574 227 MANGALURU TALUK . 6. SRI. NAGAVARMA S/O LATE B. GUMMANNA BALLAL AGED ABOUT 80 YEARS BETKERI HOUSE, BETKERI ROAD MOODABIDRI - 574 227 MANGALURU TALUK. 7. SRI. SUDARSHAN SHETTY S/O LATE GUNAPALA BALLAL AGED ABOUT 75 YEARS SUDHAMANI RESIDENCY APARTMENT NO.7,B-2, KALIAN NAGAR, BENGALURU - 560 043. 8. SRI. RATHNAVARMA SHETTY S/O LATE DHARMAPAL BALLAL, AGED ABOUT 78 YEARS, 794, 17TH MAIN, BANK OFFICERS LAYOUT, NARAYANA NAGAR, FIRST BLOCK, D.K SANDRA, J.P NAGAR, 9TH PHASE, BENGALURU - 560 062. 9. SRI. VIMAL KUMAR SHETTY S/O LATE KUMARAYYA SHETTY, AGED ABOUT 78 YEARS, - 3 - NC: 2025:KHC:13512 WP No. 47447 of 2017 OPP.MAHAVEER BHAVAN, JAIN PETE, POST MOODABIDRI MANGALURU TALUK - 575 008. 10. SRI. SHAMBHAVA KUMAR W/O LATE GUMMANNA BALLAL AGED ABOUT 70 YEARS "PUSHPANJALI" MAHAVEER COLLEGE ROAD, POST MOODABIDRI - 574 227 MANGALURU TALUK. 11. SRI. B. PRITHVIRAJ SHETTY S/O LATE B. NAGA KUMAR SHETTY, AGED ABOUT 56 YEARS, BETKERI HOUSE, BETKERI ROAD, MOODABIDRI - 574 227 MANGALURU TALUK. 12. SRI. SUVEERA S/O LATE B. JEEVANDHARA KUMAR SHETTY, "PADMAMBA", 903, 3RD MAIN, 8TH CROSS, NEAR MRF SHOWROOM NEAR KANTHARAJ URS ROAD, SARASWATHIPURAM MYSURU - 570 009. (BY SRI. SACHIN V.R., ADVOCATE FOR C/R1; R2 TO R5, R8 TO 12-SERVED R7-SERVICE HELD SUFFICIENT V/O DATED 22.06.2021 R5 & R6 - NOTICE DISPENSED WITH) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.09.2017 PASSED BY THE CIVIL JUDGE & JMFC., MOODABIDRI ON PRELIMINARY ISSUE IN O.S.NO.61/2009 VIDE ANNEXURE - A. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - NC: 2025:KHC:13512 WP No. 47447 of 2017 CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner who is defendant No.3 in O.S.No.61/2009 is before this Court aggrieved by the order dated 22.09.2017 passed in the said suit declining to accept the objections raised by the petitioner herein with regard to jurisdiction of the Civil Judge & JMFC, Moodbidri to entertain the suit. 2. The above suit pertains the issue relating to management of 16 Basadies referred to in the suit. Written statements were filed and issues were framed. Since the petitioner herein/defendant No.3 had raised issue with regard to the very maintainability of the suit, issue No.11 was taken as a preliminary issue. The Trial Court referring to repealing of the Religious Endowments Act 20 of 1863 and also observing same not being in force in view of provisions of Section 78 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act as amended in the year 2011, has held that petitioner herein/ defendant No.3 failed to prove the Court not having jurisdiction and suit having barred under the provisions - 5 - NC: 2025:KHC:13512 WP No. 47447 of 2017 of the Religious Endowment Act, 1863 and further clarified that said Court indeed had jurisdiction to entertain and try the suit. 3. Learned counsel for the petitioner taking this Court through the records submits that even as per provisions of Section 2 of the Religious Endowment Act, 1863 the term “Civil Court” and term “Court” referred to thereunder mean the Principal Court of original civil jurisdiction in the District and that the Trial Court being the Court of Civil Judge and JMFC is not competent to try the suit. He refers to the judgment of the Coordinate Bench of this Court in the case of SRI. S. DHARMASAMRAJYA, SINCE DEAD BY HIS LR S.D. SAMPATH SAMRAJYA VS. SRI. B. KEERTHIVARMA SHETTY AND OTHERS reported in ILR 2008 Kar. 1377 and submits that the Coordinate Bench of this Court has held that the Section 8 of the Religious Endowment Act, 1863 is applicable so far as the Jain Religious Endowments are concerned. 4. As regards the observation made in the impugned order with reference to the judgment of the Division Bench of this Court in the case of SHRI SAHASRA LINGESHWAWRA TEMPLE, UPPINAGADY, PUTTUR TALUK, D.K. AND - 6 - NC: 2025:KHC:13512 WP No. 47447 of 2017 OTHERS VS. STATE OF KARNATAKA AND ANOTHER and
Decision
"6. Insofar as the question as to whether the petition under Section 10 of the Act is maintainable, the perusal of the extracted portion of the judgment rendered by the Division Bench of the Madras High Court reported in AIR 1952 Madras 655 no doubt would refer to the repeal of the Hindu Religious Endowments Act I(1) of 1925. As rightly pointed out by the learned Counsel for the petitioner, the Hon'ble Division Bench of the Madras High Court was considering the repeal relating to the Hindu Religious Endowments and the question as for consideration therein. In that view of the matter, the Hon'ble Division Bench had come to the conclusion that the Madras Act (II) of 1927 had repealed the applicability of the Act insofar as the Hindu Religious Endowments are concerned with reference to Section 6 of the said Act. If this observation of the Division Bench of the Madras High Court is kept in view and if the provisions of the said two acts are considered, more particularly, keeping in view Section 8 of Madras Act 11(2) 1927, Section 10 of the Act would provide for filing application, for filing up the vacancy which would occur among the members of the committee before District Judge as contemplated under the provisions of the Act, since the same would remain in force insofar as the Jain Religious Endowments are concerned. Therefore, similar procedure would have to be followed. It is also demonstrated by the fact that Misc. Case No. 38/72 was disposed of on 19-1- 1976 (Annexure-A to the petition) wherein such power-was exercised when the vacancies had - 10 - NC: 2025:KHC:13512 WP No. 47447 of 2017 arisen in the committee and the same been filled up. 7. At this juncture, it is also required to notice that there is no other similar provision available in any one of the other enactments for filling up the vacancy of the committee and the said provision in Section 10 is the only provision on which the applicants would have to fallback upon to seek for filling of the vacancy that arises in the committee. This aspect of the matter also assumes importance of since while maintainability of the applications, if there is no other provision and if the repeal is also clear that this has been saved, the authority which exercised such power earlier will have to continue to exercise such power. considering question the 8. To sum up, a perusal of Section 6 of the Act II of 1927 would indicate the repeal of the Madras Hindu Religious Endowments Act 1863. In this regard, the reference made by the Hon'ble Division Bench is with regard to the Hindu Religious Endowments alone. In this background, if Section 8 of the Act is perused as extracted during the course of this order, it is clear that the Religious Endowments Act 1863 has been repealed only insofar so it applies to Hindu Religious Endowments and therefore, the repeal is specific to that extent. Therefore, the applicability of the Act to the Jain Religious Endowments has not been repealed. As already noticed since there is no other provision which is pari materia, the provision in Section 10 of the Act is the only provision available. Hence, in the case of appointment or filing up of vacancies to the committee, the District Judge would have the jurisdiction, since the filling up of vacancy is sought to the Mangalore Region Jaina Matha Sthapana Committee. 9. That being so, the 1 Addl. District Judge, Dakshina Kannada was not justified in dismissing the petitions in Misc. Case Nos. 88/00, 21/02, 43/04 as not maintainable by its order dated: 18- 12-2004. Hence, to the said extent, the order is set aside. In a normal circumstance, it would have - 11 - NC: 2025:KHC:13512 WP No. 47447 of 2017 been appropriate to remand the matter, but in the instant case, the applicants have neither questioned the order nor have they appeared before this Court. Since the legal position is now clarified, it would be open to the applicants or any other applicants to file fresh petitions. With the above observations and directions, the petition stands disposed of with no order as to costs:" 13. In the light of the aforesaid provisions of law and the orders passed by the Division Bench and the Co-ordinate Bench of this Court, this Court finds considerable force in submission made by the learned counsel for the petitioner that the Trial Court erred in not considering the aforesaid aspects of the matter while passing the impugned order to hold that it has got jurisdiction to entertain the suit. 14. Accordingly, the following; ORDER (a) Petition is allowed. (b) Impugned order dated 22.09.2017 in O.S.No.61/2009 on the file of the Civil Judge and Judicial Magistrate First Class, Moodbidri, is set aside. - 12 - NC: 2025:KHC:13512 WP No. 47447 of 2017 (c) The matter is relegated to the Trial Court to re-consider the matter in the light of the aforesaid provisions of law and pass appropriate order after affording opportunities of the parties. Sd/- (M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 7