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Gopinath Jiew and ors. Vs. the Comr. of Hindu Religious Endowments and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtOrissa
Decided On
Case NumberCivil Revn. No. 166 of 1948
Judge
Reported inAIR1951Ori339
ActsOrissa Hindu Religious Endowments (Amendment) Act, 1947 - Sections 3(1); Code of Civil Procedure (CPC) , 1908 - Sections 10
AppellantGopinath Jiew and ors.
RespondentThe Comr. of Hindu Religious Endowments and anr.
Appellant AdvocateM.M. Das, Adv.
Respondent AdvocateAdv. General and ;A.N. Das, Adv.
DispositionRevision allowed
Cases ReferredSenaji Kapurahand v. Pannaji Devichand
Excerpt:
.....hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - has been let loose upon the public as a licensed despotic autocrat, like autocrat of all the russians (title of the czar).'i cannot conceive for a moment that the legislature intended suoh irresistible harassment to the public..........of the amendment act. section 8 reads :3. (i) subject to the provisions of sub-section (2), all suits instituted under the provisions of sub-section (2) of schedule 4 of the said act & pending on the date of the commencement of this act shall be stayed for a period of two years from the said date.(ii) notwithstanding anything contained in sub-section (1) the provincial govt. may direct that any suit or class of suits stayed under sub-section (1) shall be proceeded with from the stage which had been reached when the suit was stayed.5. the plain grammatical meaning of the language in which the subs, (l) has been enacted leads to only one construction, to wit. that the class of suits specified for the purpose of the act includes those which had been instituted before the commencement of.....
Judgment:

Ray, C.J.

1. It arises out of an order of the Munsif of Cuttack refusing to grant a temporary injunction to the pltfs.-petnra. by way of restrain, the deft. 1 (C. P. 1), Hindu Religious Endowments Comr. from levying contribution from the pltf. under the provisions of the Orissa Hindu Religious Endowments Act.

2. The Commr. in exercise of the powers under the Act declared the endowment a public one, & accordingly, is going to levy the usual contribution which, in this case, amounts to Rs. 80 annually, the aggregate of the claim, at the time the petn, was filed, amounting to Rs. 240. The prayer for in. junction has been rejected on two grounds, namely, (i) that the suit having been stayed under Schedule , (Orissa Hindu Religious Endowments Amendment Act (Orissa Act (xxxi [31] of 1947), the Ct has no power to issue injunction; & (ii) that according to the balance of convenience, the petn. has no

3. We have to consider two very important questions of law

(i) Whether the suit is one within the purview of Schedule of the Act, &

(ii) Whether the statutory stay of the suit deprive the Ct. in which a suit of the specified nature is pending of this usual jurisdiction & power to protection to the parties by interlocutory preventive orders, such as , issue of injunction, appointment of receiver, & attachment of properties before the judgment &c.;

4. The present suit was instituted in the year 1948, that is, after the date of commencement of the Amendment Act. Section 8 reads :

3. (i) Subject to the provisions of Sub-section (2), all suits instituted under the provisions of Sub-section (2) of Schedule 4 of the said Act & pending on the date of the commencement of this Act shall be stayed for a period of two years from the said date.

(ii) Notwithstanding anything contained in Sub-section (1) the Provincial Govt. may direct that any suit or class of suits stayed under Sub-section (1) shall be proceeded with from the stage which had been reached when the suit was stayed.

5. The plain grammatical meaning of the language in which the subs, (l) has been enacted leads to only one construction, to wit. that the class of suits specified for the purpose of the Act includes those which had been instituted before the commencement of the Act & were pending at the time. It has been very strenuously contended by Mr. Advocate General who represents the Comr. that the section must be so interpreted as to give effect to the intention of the Legislature as gathered from the preamble & the scopes & object of the Act. The part of the preamble material for the purpose is:

'Whereas it is expedient to provide for the stay of certain classes of suits pending further legislation ....'

The preamble does not at all indicate that all suits Under Section 64(2), Hindu Religious Endowments Act, & intended to be the target if the legislation for the purpose of stay. The class of suits referred to in the preamble must be those specified in that behalf in Schedule . That the intention of the Legislature was to stay all such suits instituted either before or after the commencement of the Act does not appear from the preamble. It does not proceed to say what further the legislation was going to be nor how the trial of such suits was injurious or harmful to the due administration of the Act. Had there been any such indication that could have been prayed in aid to find out the intention of the Legislature as to what class of suits were intended to be stayed. So the preamble is quite unuseful in this respect. We have, therefore, to confine ourselves to the language in which Section 3 has been enacted. The material words are: 'all suits instituted.....& pending on the date of the commencement of this Act. In order to include suits to be instituted after the commencement of the Act in the class of suits specified in the section, one must read all suits to be instituted 'or' all suits whenever instituted'. I am unable to introduce these words into the section which would amount to creating a new section or usurping the functions of the Legislature. Besides, the words ''all suits instituted' are further controlled by the words 'and pending on the date of the commencement of this Act'. 'In order that a suit may come within the purview of the class, it must be one not only instituted but also pending on the date of the commencement of the Act. By any stretch of in against on & without replacing the present section by a new one, it is difficult to conceive that the section, as expressed, can, at all, be construed to include all future suits. Mr. Advocate General referred us to certain passages from Maxwell on Interpretation of Statutes in support of his contention that 'and' can be read as 'or'. That too will not improve the position. That would be reading the section as : 'all suits instituted 'or' (all suits) pending on the date of the commencement of this Act'. The meaning of the section remains as it is, even if 'and' is substituted by 'or' or is deemed' equivalent thereto. Unless you introduce certain language to the section which would mount to say 'all suits when so instituted under the provisions of Section 64 (a) including those pending on the* date of the commencement of this Act', you can. not give effect to the contention raised by the learned Advocate General. Besides, as rightly point. ed out by my learned brother, in course of argument, Sub-section (2) fortifies our view that the construction we have put upon Sub-section (l) is the only admissible one. Sub-section (a) is an enabling pro-vision empowering the Provincial Govt. to direct that any suit shall be proceeded with from the stage which had been reached when the suit was stayed. This could hardly be translated into action in its application to a suit not instituted on or before the commencement of the Act. Any suit which is instituted, if at all, after the commencement of the Act, should never reach any stage so as to be proceeded with from that stage. It is a still-born suit which never breathed nor moved & it is beyond conception that it should, even notionally, reach any stage. That 'stage' is not intended to refer to merely the 'stage' of filling is clear from the language of Sub-section (2) that is 'the stage which had been reached when the suit was stated'. Can it be predicated of a suit filed after the date of commencement of the Act that a stage had been reached before its filing? Could it be reasonably construed that the Legislature intended that the Govt. should exercise the power contemplated in the sub-section only in pre-amendment cases & not in the past, amendment ones? Sub-sections (l) & (2) of the section must be taken as co-extensive as to their respective fields of operation, &, in that contingency, sub-s (2), which is clear in its expression, must be prayed in aid of construction of Sub-section (l). I shall try to read Sub-section (l) as divisible into two mutually exclusive or disjointed parts divided by disjunctive 'or'. In doing so I shall omit the words 'sub. to the provisions of subs. (2)', as they are common to each of the parts. One part will read;

'All suits instituted under the provisions of Sub-section (2) of Schedule 4 of the said Act shall be stayed lor a period of two years from the said date.'

The other part will read 'all suits pending on the date of the commencement of this Act shall be stayed'. Looking at the two parts severally, the first part may cover-assuming 'instituted to mean either 'to be instituted 'or' whenever instituted'- post -amendment suits; but what about the second part? The latter contains no words of limitation so as to specify the class of suits but refers to 'all suits' irrespective of any characteristic features. Did the Legislature intend to paralyse the civil administration of justice till two years from the commencement of the Act (xxxi [81] of 1947)? That could be only in the land of absurdities. Another reading of the second part of the sub-section might be 'the section itself as a whole so as to define the suits as are instituted before but pending at the Commencement of the Act'. This amounts to not reading 'or' for 'and' by way of ocomplete replacement but reading both as 'or' a disjunctive conjunction & also as a conjunctive one. In grammar, when this is intended, the language used is 'and /or'-a formula allowing readers to take either or both of two expressions (e. g. contributions in money and/or garments).

6. Besides, there are certain other considerations which also compel us to the view. In Schedule 4 (a), the time limit for instituting a suit challenging the correctness of the Endowments Comr.'s order is one year. The Amendment Act does not raise it to two years or more. If the bar of limitation is to be avoided, the party must file a suit, this amending Act notwithstanding, within one year of the Comr's order, under challenge. He should file the suit, pay C. f. & then be prevented from proceeding further. This could never have been the intention of the Legislature. If it were so, they could have, in very simple language, expressed the section & could have kept operation of subs. (2) of Schedule 4 in abeyance pending further legislation. Unnecessary & unuseful harassment to the members of the public can never be imagined to have been within the contemplation of the Legislature. One construction would have led to consequential amendment of Schedule 4 or its abeyance for two years & the other would require neither this nor that. Under the circumstances, it is futile to argue that the intention of the Legislature was to harass the people & ;to compel them to file suits spending money over them but for no purpose. Besides, we are not concerned with nor it is our function to speculate on what the intention of the Legislature could more probably be. It is only when the language employ, ed admits of several constructions, we may accept one in preference to the other in order to give effect to the Legislature's intention when that appears dearly within the four corners of the piece of the legislation, under consideration. Here, neither the intention is clear nor the language admits of more than one construction, namely, the one which we have been forced to put on the section. In our view,, therefore the present suit is not one which shall be considered to have been stayed by the Amendment Act (xxxi [31] of 1947).

7. The next point, for consideration, is that conceding that the suit is within the class of suit which h've been stayed if the Ct. is deprived of his power of giving protection to an aggrieved party by such interlocutory orders as an injunction. This leads us to think that if the Legislature has not prevented the suits from being instituted they cannot be said to have deprived the Of. of the powers of protection by maintaining the status quo ante. What has been intended to be stayed must be the trial of the suit challenging the validity of the Comr's order. The matter is not without an authority. In the case of Senaji Kapurahand v. Pannaji Devichand, 46 Bom. 431 : (A. I. R. (9) 1922 Bom. 276), it has been held:

'It is competent of the Ct. to pass interlocutory orders, e. g., orders for ft receiver or an injunction or an attachment before judgment, where a suit has been stayed under Schedule 0 of the Procedure Code 1908'.

I find no distinction between the stay, as enacted! in Section 10, & the provision for stay in this Act. Both the stays are as against adjudication of the subject matter of dispute. If the Legislature intended that not only the trial of the suit should be stayed but also that in matter of all interim protections against continuance of injury, violence & ravages to one's property he should be made completely defenceless, they must express themselves dearly. To hold that it did so intend, it would be assigning to it attribute of reacting Czar's regime in this land. They could have kept in abeyance or suspense the operation of 3. 64 (2), though that should not have been enough, because as against civil wrong, a citizen has got a right to sue under his fundamental right & under Civil P. C. If they did do so it must be with a purpose, namely, at any rate they did not contemplate that they would make the aggrieved defenceless as against a containing wrong by paralysing the interim machinery of temporary protection. If I assume that the Legislature has paralysed & freezed the said machinery, I shall have to assume that the Hindu Religious Endowments Comr. has been let loose upon the public as a licensed despotic autocrat, like Autocrat of all the Russians (title of the Czar).' I cannot conceive for a moment that the Legislature intended suoh irresistible harassment to the public in relation to their fundamental rights. Under the circumstances we are unhesitatingly of opinion that, even in all suits, which come within the class specified in Schedule as interpreted by us in the earlier part of this judgment, the Cts. have got the power of passing interlocutory orders by way of protection to the aggrieved by way of maintaining the status quo till the disposal of the suit.

8. Coming to the merits of this appln. it is contended by the learned Advocate-General that the levy of contribution is not going to be a very serious affair nor to inflict any irreparable loss & injury to the pltfa. & further urges that .it being a stone temple situate beyond the homestead of the pltfs.-sebaits, presumably it is a public temple, or in other words, that, prima facie, the order of the Comr. is correct. Hi is difficult to pre-judge the issue nor is it possible to say that it is easy for the pltfs. to get back the contribution realised from them in case they succeed in the suit. Besides, as Mr. Das, the learned counsel for the petnrs. has put in, the payments of these contributions should naturally reduce correspondingly the funds available for the upkeep of the worship. Under the circumstances, I consider that the balance of convenience is in favour of the petnrs. I should, therefore, allow this petn & direct that deft. 1 be restrained from levying any contribution payable under the provisions of the Orissa Hindu Religious Endowments Act from the pltfs. including the deity & his properties.

9. The civil revn. is allowed with costs as against deft. 1. Hearing fee is assessed at three gold mohurs.

Panigrahi, J.

10. I agree, but I would like to add a few observations in view of the importance of the master involved. If the intention of the Legislature was to direct stay of suits to be instituted after the commencement of the Orissa Act No. 81 of 1947, nothing could have been simpler than to say that no suit shall be instituted to challenge the decision of the Endowments Comr. Under Section 64 (2) for a period of two years. It would not be legitimate to attribute vagueness to the Legislature when by adopting this simple language it could have brought in all suits instituted before or after the commencement of the Act within its scope. It says that :

'all suits instituted......& pending on the date of the commencement of this Act shall be stayed for period of two years from the said date.'

'All suits instituted' could only have reference to those that had already been instituted. The words 'and pending' have also to be read conjunctively with the previous clause beginning with all suits instituted'. The proper construction should there, fore, be that a suit should have been instituted & been also pending on the date of the commencement of the Act if the Act is to apply. Furthermore, the section says that 'a suit shall be stayed for two years from the said date. How can it be said that a Suit shall be stayed for a period of two years from the date of the Act unless it was pending on that date To give effect to the words 'for a period of two years from the said date', I am compelled to restrict the operation of Schedule (l) to suits which were capable of being stayed for two years from the commencement of the Act. This could only apply to a suit which had already been instituted & been pending on the date of the commencement of the Act. Reference to the language of Schedule (2) also leads to the same result. The Govt. is given the power to direct that a suit shall be proceeded with from the 'stage which had been reached' when the suit was stayed. The suit is stayed under that Act. Therefore, the stage' referred to in Sub-section (a) can only be the 'stage which had already been reached before the commencement of the Act. My third reason for arriving at this conclusion is that the section contemplates stay of 'suits'. Does it mean as was contended by the learned Advocate-General, that the trial of the suit alone is stayed That appear to be the meaning of the language used by the Legislature though it could easily have said that 'all proceedings except the trial of suits shall be proceeded with. Otherwise, we are driven to the position that a suit must be filed under Schedule 4(2) within one year of the order of the Comr. & must be stayed under the Act xxxi [31] of 1947 as soon as filed. The result would be preposterous because, the Ct. cannot check the plaint nor can even order for supply of deficit C.-f. nor can do any thing in the way of progress of the suit. If this were the intention of the Legislature, as strict construction, of the language would lead us to hold, we arrive. at the same conclusion namely, that the Act would not apply to a suit filed subsequent to the commencement of the Act.

11. I am also inclined to accept the contention) of the learned Advocate-General &, in agreement with my Lord, will hold that no proceeding other than adjudication of the rights involved in the suit was intended to be stayed & that the Ct. is at liberty to pass interim or interlocutory orders as may be necessary from time to time, in the interest of justice. In the present case, I do not see how the balance of convenience can be on the side of the Comr. It is urged for him that the money now paid can, at any time, be recovered from the. Comr. &, therefore, no injunction should issue... It is equally that the Comr. can go on with his administration of endowment even without payment of any sum by the petnrs. & administration! of religious endowments is not likely to suffer; because of the non-payment of the contribution, levied on the petnrs. I have, therefore, no hesitation in arriving at the same conclusion, namely, that this is a fife case in which the injunction: should issue restraining the Comr. from realising contribution from the petnrs. The petn. should be allowed with costs, as proposed by my Lord the learned Chief Justice.


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