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Ganapathy Raja Valia Raja of Edapally, Sivaroopam Vs. the Commr. for Hindu Religious and Charitable Endowments, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 486 and 568 and Civil Revn. Petn. Nos. 594 and 915 of 1952
Judge
Reported inAIR1955Mad378
ActsMadras Hindu Religious and Charitable Endowments Act, 1951 - Sections 6(6), 93 and 103; Code of Civil Procedure (CPC) , 1908 - Sections 24
AppellantGanapathy Raja Valia Raja of Edapally, Sivaroopam
RespondentThe Commr. for Hindu Religious and Charitable Endowments, Madras and ors.
Appellant AdvocateK. Kuttikrishna Menon, ;D.H. Nambudripad, ;M.S. Venkatarama Iyer and ;A. Durairaj, Advs.
Respondent AdvocateGovt. Pleader, ;K.P. Raman Menon, ;P.S. Menon and ;S. Ramachandra Iyer, Advs.
Cases ReferredKunhambu Nair v. Vadakka Veetil Ambu
Excerpt:
.....continuity of suits already initiated - court's jurisdiction not had been throw out with regard to pending proceedings - revision petition allowed. - - it is now well settled that a party has a vested right to have a suit tried in a forum in which it was commenced. well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. it is thusclear that a statute should not be so construed as to take sway an action which has been well commenced. it is equally well recognised that it is open to the legislature to defeat such vested right. but it is also beyond controversy that a very strong and distinctive language should be used to have that effect, that is, either there should be express enactment depriving a..........act and it was answered in the negative as there was no express provision for transfer of such suits pending in the high court to the small cause court.13. there remains for consideration two rulings of this court by single judges cited by either side in support of the respective contentions. in - 'v. r. krishnarnachariar v. rukmani animal', c. r. p. no. 1362 of 1952 (mad) (f), ramaswami j. took the view that the provisions of act. 19 of 1951 'relate only to procedure and practice and are retrospective.' there an application under section 79-a (3) of act ii of 1927 was filed on 16-6-1951 to set aside an order passed by the hindu religious endowments board prior to the enactment of act 19 of 1951. under section 57 of the new act, such an application has to be heard by the deputy.....
Judgment:

Chandra Reddy, J.

1. The question involved in all these cases is whe-ther the District Court or the Sub Court has jurisdiction to hear and dispose of suits or applications commenced under Madras Act II of 1927 and pending before it after the passing of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Act No. 19 of 1951} and they can therefore be disposed of in a common judgment.

2. C. M. A. No. 486 of 1952: This is an appeal against the order of the District Judge of South Malabar returning the plaint for presentation to the proper Court or Tribunal. The appellant filed O. S. No. 3 of 1949 in the District Court of South Malabar for setting aside an order modifying a scheme settled under Section 57 of Act II of 1927 (hereinafter referred to as the old Act) Subsection 7 of Section 57 of the old Act conferred the right of suit on the trustee or any person having interest to institute a suit to set aside or modify a scheme within six months of the date of publication,

Pending the suit, Act II of 1927, was repealed and re-enacted as the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 (hereinafter referred to as the new Act). After the new Act came into force the District Judge felt that his jurisdiction to try and dispose of suits or applications commenced under the old Act and pending before him at that time, had ceased and in that view directed the return of the plaint to the party for the purposes mentioned above. Hence this appeal.

3. The question that falls for determination is whether this view of the District Judge is correct, in other words, whether the new Act has taken away the right of the parties to continue the proceedings in the District Court. All suits, applications and other proceedings arising under the old Act were to be instituted in the District Court by virtue of the definition of 'court' in Section 9 (3) of that Act. Section 9(3) defined 'court' as 'the court of the District Judge, if the math or temple is situated in a district,' The new Act effected a change in this respect. Section 6, Clause (6) of the new Act says: -

' 'Court' means, (i) in relation to a math or temple situated in the Presidency Town, the Madras City Civil Court; (ii) in relation to a math or temple situated elsewhere, the Sub- ' ordinate Judge's Court having jurisdiction over the area in which the math or temple is situated, or if there is no such court, the District Court having such jurisdiction;'

It is seen that the forum is altered, the City Civil Court having been substituted for the High Court so far as the city of Madras is concerned and the. Sub Court for the District Court in the mofussil wherever a Sub Court exists. The other section which is material and which along with the definition section is regarded as having divested the District Court of its jurisdiction in this behalf is Section 103 of the new Act. Section 103 enacts:

'103. Notwithstanding the repeal of the Madras Hindu Religious and Endowments Act, 1926 (hereinafter in this section referred to as the said 'Act) (a) all rules made, notifications or certificates issued, orders- passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken, settled or done by the appropriate authority under the corresponding provisions of this Act and shall, subject to the provisions of Clause, (b) have effect accordingly (j) all suits, applications or proceedings taken by, or on behalf of, or against, the Board under the provisions of the said Act and pending at the commencement of this Act, may be continued by, or on behalf of, or against the Commissioner subject to the provisions of, and in so far as they are not inconsistent with this Act:

Explanation: All suits and applications instituted under the said Act the High Court in respect of religious institutions situated within the presidency-town and. pending on the date of the commencement of this Act, which would have been instituted in the Madras City Civil Court if this Act had been in force at the time when such suits or applications were instituted shall be continued in and disposed of by, the High Court.

(k) any remedy by way of application, suit, or appeal which is provided by this Act shall be available in respect of proceedings under the said Act pending at the commencement of this Act as if the proceedings in respect of which theremedy is sought had been instituted under this Act.'

4. It is contended on behalf of the respondent commissioner that a combined reading of these provisions with Section 6(6) of the new Act has divested the District Courts of their jurisdiction to dispose of suits or applications pending at the commencement of the new Act. The 'explanation' is specially called in aid in support of this submission. It is argued that the explanation enables the High Court to retain the pending suits and dispose of them and the absence of analogous provision so far as the District Court is concerned indicates that the District Courts cannot do so.

We do not think that the omission to enact aprovision similar to the explanation in regard tomoffussil courts will lead to that conclusion. Theexplanation is not an enabling provision wherebythe High Court is given the power to retain ortransfer the proceedings before it but is one whichmakes, obligatory on the part of this court to hearand dispose of the proceedings pending before iton the relevant date despite the constitution of theCity Civil Court as the Court for the initiation ofproceedings under the new Act. It is not for usto speculate as to why such a rule was made onlywith regard to this Court. In other words, thepower, of this Court to transfer proceedings pending before it is taken away. '

It was further submitted that suits, applications or proceedings pending on the date on which the new Act came into force could not be continued in the District Court in which they were instituted as such continuance was inconsistent with the provisions of Section 6(6) and the explanation to Clause (j) of Section 103 of the new Act. In our opinion the, explanation cannot lend any support, to this contention for the reasons already stated. The explanation, on the other hand, seems to be consistent with the view that the District Courts still retain the power of transference of suits, applications etc., conferred upon them under Section 24, Civil P. C.

5. It is further contended for the respondent that the effect of Clause (a) and (k) of Section 103 is to confer such remedies as are available under the new Act on the parties since all things done under the old Act are deemed to have been done under the new Act and therefore the parties have to resort only to the remedy provided under the new Act even in respect of pending proceedings. If this interpretation is to be accepted, Clause (j) can have no meaning at all.

According to the construction sought to be placed on Clauses. (a) and (k) by the learned Government Pleader all pending proceedings would lapse. If that is so, there can be no question of the continuance of the proceedings under Clause (j). In our opinion, this construction would be utterly inconsistent with the provisions of Clause (j) and renders Clause (j) nugatory. We do not think this intention can be attributed to the Legislature. It looks to us that Clauses. (a) and (k) apply only to the remedies to be availed of in future and cannot apply' to proceedings initiated already and pending at the commencement of the new Act.

6. A similar provision of law under the old Act fell to be interpreted in -- 'Chengayya v.Kotayya', AIR 1933 Mad 57 (A). Under Act 1 of 1925 an aggrieved party could apply to a court for setting aside or modifying a scheme settled for the management of a temple by the Hindu Religious Endowments Board. Pending that application, Act II of 1927 was passed under which schemes of administration settled by courts must be deemed to be schemes settled under the Act and could be modified or cancelled by a suit and not otherwise, instead of by application as provided in Section S3(4) of the earlier Act. Section 7 of Act II of 1927 enacted:

7(i); All action taken and all things done including the constitution of the Board of Commissioners for the Hindu Religious Endowments, the notifications issued and orders made under and in pursuance of the said Act shall be deemed to have been validly taken, done, issued or made.

(ii) All proceedings taken under the said Act may be continued under this Act in so far as they are not inconsistent with the provisions of this Act.

(iii) Any remedy by way of application, suit or appeal which is provided by this Act shall be available in respect of proceedings under the said Act pending at the time of the commencement of this Act as if the proceedings in respect of which the remedy is sought had been instituted under this Act.'

It is, seen that Sub-section (ii) and Sub-section (iii) correspond to Clauses. (j) and (k) of Section 103 of the new Act. In the above case applications were filed under Section 53(4) of Act I of 1925 to modify schemes settled in respect of three temples by the civil courts prior to the passing of Act II of 1927. After the later Act came into force those applications were opposed on the ground that the applications became incompetent by virtue of Section 57 (4) of the later Act.

It was argued that the continuance was incompetent because it was inconsistent with Section 57 (4) of that Act and for that purpose Section 7(2) of Act II of 1927 was invoked. This contention was repelled by Pandalai J. who held that there was nothing in Section 57(4) which was inconsistent with the continuing of applications presented already and what the section contemplated was that all proceedings for modification or cancellation must be taken by way of suit. The rule stated there equally governs the present case and we express our respectful accord with the reasoning of the learned Judge.

7. Next reliance was placed on Section 93 of the new Act which enacts:

'No suit or Other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any court of law, except under, and in conformity with, the provisions of this Act.'

According to the learned Government Pleader this section shows that the Legislature meant to give retrospective operation to the relevant provisions of the Act and it prohibits the continuance of suits etc. in the District Court. We do not think that any such consequence flows from the rule enactedin Section 93 of the new Act. On the other hand, it gives a clear indication that it is only prospective and not retrospective. If really the intention of the Legislature was to affect the pending suits it would have certainly added 'or continued' after 'shall be instituted'. This in a way, in our judgment, points to the conclusion that the actions already initiated would be continued unaffected by any provision of the new Act.

8. We are now left with the change in the definition of 'court'. The point for consideration is whether a mere alteration of the forum without anything more could defeat the right which a party had according to the pre-existing law. It is now well settled that a party has a vested right to have a suit tried in a forum in which it was commenced. Such a right is a substantive one and is not in the realm of procedural law, The following classical passage 'in -- The Colonial Sugar Refining Co.' Ltd. v. living', 1905 AC 369 (B), illustrates this principle:

'To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the. well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

What is laid down in that passage is that not only is a suitor entitled to have the right of appeal preserved to him by the state of law as it stood at the time of the initiation of the proceedings but that right appertained to the particular forum also unless that forum was abolished.

9. That there is no difference in principle between the case of an appeal and that of a suit appears from -- 'Venugopala Reddiar v. Krishna-swami Reddiar . There a suit was instituted in Triehinopoly court in the year 1932 for the recovery of properties specified in one of the schedules annexed to the plaint or for partition of the properties set out in some other schedules'. The suit covered the properties situated in Burma; under Section 17, Civil P. C., it was permissible to include such properties. Pending the suit Burma had ceased to be part of India.

The question then arose whether the Triehinopoly court had still jurisdiction to deal with Burma properties. When the matter went up in appeal finally to the Fed.... Court it was decided that the right of the party to continue the suit had not been taken away by the Constitution Act which separated Burma from India and that the Triehinopoly Court had jurisdiction to try the suit even as regards immovable properties situated in Burma. This principle has been extended to criminal cases also. See -- 'State v. P. K. Swami', : AIR1953Mad451 (D).

10. There is a long line of authorities which have laid down that a suitor has all the rights attaching to the institution of a suit in force at the time of the commencement of the suit preserved to him throughout its career. It is thusclear that a statute should not be so construed as to take Sway an action which has been well commenced. It is equally well recognised that it is open to the Legislature to defeat such vested right. But it is also beyond controversy that a very strong and distinctive language should be used to have that effect, that is, either there should be express enactment depriving a suitor of that right or it must be by necessary intendment. It is nobody's case that there is any specific provision in the Act which excludes the jurisdiction of the District Court to hear and dispose of pending proceedings.

11. The stand taken for the respondent is that the right to continue the proceedings is taken away by necessary implication in view of the provisions of Section 6(6) and Section 103 of the new Act. We have already observed that Section 103 has not got that effect. The only circumstance namely the change in the definition of 'court' is not so strong as to imply that the existing jurisdiction of the District; Courts has been ousted.

12. The judgment of Bhagwati J. in -- 'C. P. Bannerjee v. B. Section Irani : AIR1949Bom182 (E) has a bearing on the present enquiry. What happened there was, a suit was instituted for the recovery of a sum of Rs, 1000 on the original side of the Bombay High Court. Subsequently the Bombay Legislature enacted Bombay Act 44 of 1948 called the Presidency Small Cause Courts (Bombay Amendment) Act which deleted the election which was given to the plaintiff to institute in the High Court suits whereof the amount or value of the subject matter exceeded Rs. 1000.

The result of the enactment was that the original jurisdiction which had been vested in the Bombay High Court under Clause 12 of the Letters Patent to receive, try and determine suits whereof the amount or value of the subject matter exceeded Rs. 1000 at the election of the plaintiff was taken away from that court; The question arose whether this legislation affected suits so filed prior to the coming into force of that Act and it was answered in the negative as there was no express provision for transfer of such suits pending in the High Court to the Small Cause Court.

13. There remains for consideration two rulings of this Court by single Judges cited by either side in support of the respective contentions. In - 'V. R. Krishnarnachariar v. Rukmani Animal', C. R. P. No. 1362 of 1952 (Mad) (F), Ramaswami J. took the view that the provisions of Act. 19 of 1951 'relate only to procedure and practice and are retrospective.' There an application under Section 79-A (3) of Act II of 1927 was filed on 16-6-1951 to set aside an order passed by the Hindu Religious Endowments Board prior to the enactment of Act 19 of 1951. Under Section 57 of the new Act, such an application has to be heard by the Deputy Commissioner and an appeal is provided from the order of the Deputy Commissioner to the Commissioner under Section 61.

A further right of suit is given under Section 62(1) to the aggrieved party. After the new Act came into force, the District Judge transferred the petition to the Subordinate Judge subject to the question of Jurisdiction being decided. The Subordinate Judge sent back the petition to the Dis-trict Judge holding that he had no jurisdiction. The District Judge again transferred the petition to the Subordinate Judge and it was this Order that was sought to be revised in that civil revision petition.

The learned Judge expressed the opinion that the provisions of Section 103 were procedural and therefore retrospective. Hence remedies prescribed under the old Act became lost and could not be revived and the only course open to the District Judge was to have returned the petition for presentation to the proper court namely the Deputy Commissioner. We have already remarked that the right to have a suit or an application or a proceeding determined in the forum in which' it has been commenced is a substantive one and does not belong to the realm of procedure, and consequently the relevant provisions of Act 19 of 1951 do not have retrospective operation.

We have already pointed out that there is nothing in that section which gives a retrospective effect to it. The retrospective operation of the section will imperil a very valuable right acquired by a suitor under the law as it stood at the time of the commencement of the proceedings. We must therefore hold with respect to the learned Judge that the view taken by Ramaswami J. is opposed to the accepted canons of construction of statutes and to the long line of decisions. We are constrained to hold that the principle of law enunciated in C. R, P. No. 1362 of 1952 (Mad) (F) is not correct.

14. We now come to -- Kunhambu Nair v. Vadakka Veetil Ambu, : AIR1953Mad214 (G). The facts there are these: A petition was filed in tha District Court of South Kanara under Section 84(2), Hindu Religious Endowments Act II of 1927 to set aside an order of the Hindu Religious Endowments Board that a particular temple was a private temple. During the pendency of this petition, the new Act (Act 19 of 1951) was passed under which as already pointed out, a court was defined as Sub Court wherever it existed. Soon after the passing of this Act an order was made by the District Judge holding that the petition stood transferred to the appropriate court or authority and that it should be deemed to be pending before the court or authority by virtue of Section 103 (j) and (k) of the new Act.

In a petition to revise that order, Basheer Ahmed Sayeed J. held that in the absence of a specific provision similar to the one contained in . the explanation to Section 103 (j) pending proceedings in the District Court could hot be transferred or could not be deemed to have been transferred to the Sub Court, agreeing with the contention put forward on behalf of the petitioner. The learned Judge thought that the explanation required the proceedings pending before the High Court at the relevant date, to be continued in the City Civil Court and the absence of such a provision governing the pending proceedings in the moffusil courts indicated that the District Judge had to try and determine suits or applications pending before him.

We are afraid that the learned Judge was under a misapprehension as to the effect of the explanation. Far from directing the transference of theproceedings on the file of the High Court to the City Civil. Court, it required the High Court to hear and dispose of those matters. It is this concept that has coloured the view of the Judge throughout the judgment, He also seems to have proceeded on the assumption that specific provision should have been introduced by the Legislature for the transfer of pending proceedings from one court to another when the forum was altered.

Here again with great respect to the learned Judge we must say that it is not the correct position. The District Court has power to transfer all proceedings pending before it to the, Subordinate Court under Section 24, Civil P. C. It is now beyond controversy that a vested right of a party to have a suit tried in a particular court does not abrogate the power of the court to transfer it under Section 24, Civil P. C. It follows that the rule embodied in : AIR1953Mad214 (G), is not sound. It is to resolve the conflict between the cases referred to above that Ramaswami J. referred C. R. P. No. 915 of 1952 to a Bench.

15. What follows on this discussion is that 3suitor has a right to continue his suit in the courtof the District Judge subject to the power of thatcourt to transfer it to the Sub Court under Section 24,Civil P. C. We therefore hold that the learnedDistrict Judge erred in returning the plaint to bepresented to the proper court instead of transferring it to the Sub Court. In view of the fact thatthe suit has already been numbered, it is sufficient to observe that the Subordinate Judge willregard it as a transferred suit and dispose of itaccordingly.

16. C. M. A. No. 568 of 1952: This is against a 'similar order passed By the same District Court and will be governed by the order we have just pronounced.

17. C. R. P. Nos. 594 and 915 of 1952: C.R.P. No. 594 of 1952 is against the order of the Subordinate Judge returning a petition filed under Section 53-A (4) of the old Act for setting aside the order dated 7-12-1950 passed by the Hindu Religious Endowments Board removing the petitioner from the office of the trustee, the basis of the order being that on the coming into force of the new Act that court had ceased to have jurisdiction to entertain the petition. We have also remarked' that on a correct interpretation of the provisions of the statute the court's jurisdiction has not been ousted with regard to the pending proceedings. The result is this civil revision petition is allowed.

18. This order applies to G. R. P. No. 915 of 1952 in which as mentioned above reference was made by Ramaswami J. to a Bench and the order under revision is set aside. We must observe that in this case the learned District Judges, had gone to the length of dismissing the petition which in our opinion is unjustifiable.

19. The parties will bear their own costs throughout in all the cases.


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