S. Natarajan, J.
1. The Commissioner, Hindu Religious and Charitable Endowments, Madras, the 1st defendant in O.S. No. 10 of 1965 on the file of the Court of the Subordinate Judge, Dindigul, is the appellant. The controversy in the suit instituted by the plaintiff related to the office of hereditary trustee of Sri Kali-amman temple situate in Andipatti village in Periakulam Taluk.
2. The case of the plaintiff was that the Sri Kaliamman Temple, which was an ancient institution was always being managed by a hereditary trustee and that it was the family of the plaintiff which was managing the temple and its affairs as hereditary trustee for a long number of years. According to the plaintiff his great-grandfather was originally managing the temple as hereditary trustee and after him the plaintiff's grandfather Perumal Naicker was in management and after his grandfather's time the plaintiff's father Velappa Naicker was managing the affairs of the temple as hereditary trustee for about 40 years. It was the further case of the plaintiff that after his father's death he took over the management of the temple as hereditary trustee and has been in uninterrupted management of the same for very many years. In the year 1939 the temple was declared to be an excepted temple by the Hindu Religious and Charitable Endowments Board and while deciding the character of the temple the Board had also determined the nature of the office of the trustee and had accepted the holding of the office of trustee by the plaintiff as one done in the exercise of his vested right as hereditary trustee. According to the plaintiff when this was the settled state of affairs the Area Committee of Madurai, without any notice or intimation to him, appointed the 2nd defendant in the suit as a non-hereditary trustee and this fact came to be known to the plaintiff only when the 2nd defendant took steps through the Area Committee to obtain possession of the temple and the temple properties from the plaintiff. At once the plaintiff sought the intervention of the Deputy Commissioner, Hindu Religious and Charitable Endowments Board, Madurai and prayed that no certificate for possession of the temple and its properties should be granted in favour of the 2nd defendant. The Deputy Commissioner however disregarded the plea of the plaintiff and issued a certificate in favour of the 2nd defendant on 21st October, 1963. This led to the plaintiff filing an application O.A. No. 59 of 1960 before the Deputy Commissioner for assailing the appointment of the 2nd defendant as a non-hereditary trustee by the Area Committee when the plaintiff was admittedly in possession of the temple and its properties in the capacity of hereditary trustee and when such rights had already been recognised as early as 1939. On the Deputy Commissioner refusing to intercede in the matter and dismissing the application of the plaintiff he preferred an appeal to the Commissioner but the appeal also did not meet with success. It was thereafter the plaintiff came forward with the suit O.S. No. 10 of 1965 and prayed for a declaration that he was the hereditary trustee of Sri Kaliamman temple and for having the order of the Commissioner ,dated 28th October, 1964 in A.S. No. 6 of 1964 set aside.
3. The 1st defendant resisted the suit of the plaintiff and contended that he did not accept the contention of the plaintiff that the plaintiff's fore-fathers and the plaintiff had been in management of the temple for a long number of years in their capacity as hereditary trustees. It was averred by the 1st defendant that the records went to establish that in addition to the plaintiff's father Velappa Naicker two other persons by name Muthalagu Pillai and Arunachalam Chettiar had also functioned as trustees in respect of the temple and as such the claim of the plaintiff that his father had been solely in management of the temple as hereditary trustee was not tenable. The 1st defendant therefore contended that the Area Committee was well within the rights in having appointed and 2 defendant as a non-hereditary trustee and that the plaintiff was not entitled to question the appointment of the 2nd defendant. Yet another defence that was taken by the 1st defendant was that on a former occasion the plaintiff had attempted to get a declaration from the Deputy Commissioner, Tanjore, of the hereditary nature of his office of trusteeship and had failed therein and as such the order passed by the Deputy Commissioner in those proceedings had become final. It was therefore urged by the 1st defendant that the plaintiff was estopped from traversing covered ground once again and that the suit instituted by him was barred by res judicata.
4. In a separate written statement the 2nd defendant also opposed the claim of the plaintiff to be entitled to act as the hereditary trustee of the temple. The 2nd defendant averred that the management of the temple had always been vested in the representatives of the three communities of Pillaimars, Chettiars and Naickers, that the periathanakaras of each of the communities had always been managing the affairs of the temple jointly with each other and that therefore the claim of the plaintiff that he and his forefathers had been in exclusive management of the temple as hereditary trustees was not a genuine claim. The 2nd defendant also contended that the prior action of the Board in having recognised the temple as an excepted one had nothing to do with the question as to whether the office of trustee attached to the temple was a hereditary or non-hereditary one and that therefore the plaintiff was not entitled to sustain his claim for the hereditary trusteeship of the temple on the earlier decision of the Board accepting the temple to be an excepted institution.
5. On the pleadings of the parties, the learned Subordinate Judge set the following issues for trial:
1. Whether the plaintiff is the hereditary trustee of the suit temple?
2. Whether the order of the Board, dated 31st July, 1939 is final and binding on the Commissioner?
3. Whether the suit is barred by res judicata by reason of dismissal of the plaintiff's petition before the Deputy Commissioner, Tanjore?
4. Whether the order appointing 2nd defendant is not legal and valid?
5. Whether the plaintiff is entitled to the declaration prayed for?
6. To what relief, if any, is the plaintiff entitled?
6. After a consideration of the evidence adduced by both sides the learned Subordinate Judge held that the earlier order of the Board -- Exhibit A-4 holding the temple to be an excepted temple did not estop the Commissioner from going into the question as to whether the office of trusteeship of the temple was hereditary or non-hereditary and accordingly found issue No. 2 against the plaintiff. As regards issue No. 1 the learned Subordinate Judge found that there was a large volume of acceptable evidence in support of the plaintiff's claim/ that he was a hereditary trustee of the temple and therefore found this issue in favour of the plaintiff. With reference to issue No. 3 the learned Subordinate Judge held that the prior proceedings; instituted by the plaintiff before the Deputy Commissioner, Tanjore which resulted in an order of dismissal against the plaintiff did not operate as res judicata so as to disentitle the plaintiff from instituting his present action. In view of his conclusions on issues Nos. 1 and 3 the learned Subordinate Judge held on issues Nos. 4 and 5 that the order appointing the 2nd defendant as non-hereditary trustee was not legal and that therefore the plaintiff was entitled to a declaration in his favour as prayed for. He therefore gave a decree in favour of the plaintiff and it is as against that judgment and decree the 1st defendant has come forward with this appeal.
7. The two material questions that arise for consideration in this appeal are--whether the plaintiff has established that he and his forefathers had been managing the affairs of the temple as hereditary trustees; and whether the prior proceedings before the Deputy Commissioner, Tanjore, disentitle the plaintiff in any manner from instituting the suit for a declaration of his right as hereditary trustee. As far as the first point is concerned, the plaintiff has placed reliance upon not only his evidence but also on the evidence of the two other witnesses --P.Ws. 2 and 3 to prove that he and before Slim his father, grandfather and great grandfather were continuously managing the affairs of the temple and that they exercised such rights by virtue of their being the hereditary trustees of the temple. As P. W. 1 the plaintiff has stated that his father Velappa Naicker was functioning as the trustee of the temple for about 40 years and that after the death of his father he was managing the affairs of the temple all along and that his management had not been questioned by anyone. He has also deposed that before his father, his grandfather Perumal Naicker and before him his great-grandfather Beri Naicker had functioned as trustee of the temple. P.W. 2, a resident of the Andipatty village, aged about 80 years, has fully supported the case of the plaintiff and has stated that Beri Naicker the great-grandfather of the plaintiff was the trustee of the temple for about 5 years and that after his life-time his son Perumal Naicker functioned as trustee for a period of 20 years and after him the plaintiff's father Velappa Naicker was managing the affairs of the temple as trustee for about 40 years. He has further stated that Arunachalam Pillai and Karuppanan Chettiar who were associated with Perumal Naicker in the management of the temple did not participate in the management in the capacity of hereditary trustees but only lent their assistance to the managing trustee at his request. The third witness examined of the side of the plaintiff, viz., P.W. 3 has also supported the plaintiff in full measure. He claims to have been a lessee in one of the shops belonging to Sri Kaliamman temple and he has stated that he was personally aware of the plaintiff's grand-father managing the affairs of the temple as trustee during his lifetime and that after him his son Velappa Naicker and after Velappa Naicker the plaintiff were successively looking after the affairs of the temple. P.Ws. 2 and 3 have both stated that the office of trusteeship was automatically assumed by the members of the plaintiff's family after the death of the last office-holder and that they were not elected to the office or appointed to that office by anyone. Nothing has been elicited in the cross-examination of P.Ws. 2 and 3 which would show that they are not trustworthy or credible witnesses or that they are giving interested evidence in favour of the plaintiff to oblige him. As against the evidence of P.Ws. 1 to 3 the defendants have placed reliance upon the evidence of their sole witness --D.W. 1 Sivagaminatha Nadar. D.W. 1 has attempted to say that the temple was not managed by Velappa Naicker alone but only in association with two others, Karuppanan Chettiar and Arunachalam Pillai and that the jewels and cash belonging to the temple were kept in the shop of one Periakaruppan Nadar, where D.W. 1 claims to have worked as an Accountant. He has however been forced to admit in cross-examination that Perumal Naicker, Velappa Naicker and the plaintiff have been holding the office of the trustee of the temple in succession and that their holding of such office was not questioned by anyone. If really the plaintiff and his ancestors were not holding the office as hereditary trustees it is inconceivable that they would have assumed that office in succession without there being an election to that office from among the residents of the village where the temple is situated.
8. The documentary evidence adduced by the plaintiff also establishes his case that he and his forefathers were managing the temple and its affairs as hereditary trustees without let or hindrance for a long number of years. Exhibit A-2 is a register maintained under Section 38 of Act II of 1927 wherein the names of the past and present trustees have to be shown and details have also to be furnished as regards the custom if any in regard to the succession of the office of trustee, the jewels belonging to the institution, the particulars of all endowments made in favour of a Mutt or temple and also the scheme of administration, if any, framed in respect of that institution. Such a register is subject to scrutiny by the Board. The entries contained therein have been scrutinised and verified by a special Inspector of the Board and have been countersigned by the Assistant Commissioner, Hindu Religious and Charitable Endowments. Though the names of three persons have been entered in the register as persons exercising the office of trustee in respect of the temple, namely, Velappa Naicker, Arunachalam Pillai and Karuppanan Chettiar, it is seen at page 3 of the register that the temple has been declared as an excepted temple. There is also an entry in regard to succession to the office of trustee and that entry makes it clear that the office has been classified as a hereditary office. Yet another document which clinchingly proves the case of the plaintiff is Exhibit A-3 which is an audited report regarding the accounts of that temple. The said report has been prepared by one Dhakshi-namoorthy, an audit clerk and has been countersigned by the District Inspector of Hindu Religious and Charitable Endowment Department (Accounts) Madurai. The very first sentence in the report runs thus:
The office of hereditary trustee was held by Sri P. Velappa Naicker during the fasli under report.
9. Exhibit A-5 series are receipts showing the payment towards the contribution and audit fees and they are made in the name of plaintiff's father Velappa Naicker. Exhibit A-6 is a memo, by the Assistant Commissioner addressed to Velappa Naicker as managing trustee of the temple. So also Exhibits A-7, A-8 and A-9, which are all communications from the Assistant Commissioner addressed to Velappa Naicker as the trustee in charge of the affairs of Sri Kaliamman temple. It is thus seen that there is a preponderance of evidence, both oral and documentary in support of the case of the plaintiff that his forefathers during their life-time have been in charge of the affairs of the temple as hereditary trustees. It is in view of such overwhelming evidence in support of the plaintiff's case that Thiru Kumaraswami, the learned Assistant Government Pleader appearing for the appellant, did not, and in our opinion, rightly, rest the case of the 1st defendant on any criticism regarding the merits of the contention of the plaintiff that he is entitled to hold office as hereditary trustee of the temple, but instead chose to assail the judgment of the learned Subordinate Judge on the technical ground that the plaintiff, by reason of the adverse decision against him in the prior proceedings instituted by him before the Deputy Commissioner, Tanjore,. was disentitled from instituting a fresh suit for a declaration of his right to be the hereditary trustee of the temple. This takes us to the second point which, as we have already stated, arises for consideration in the appeal.
10. To appreciate the argument of Thiru Kumaraswami, it is necessary to make reference to the prior proceedings which were instituted by the plaintiff before the Deputy Commissioner, Tanjore. The sheet-anchor of the 1st defendant's case in this behalf is the two documents --Exhibits B-6 and B-7. Exhibit B-6 is the application made by the plaintiff to the Deputy Commissioner, Tanjore, praying for an order in his favour declaring him the hereditary trustee of the Sri Kaliamman temple. It is not known under what circumstances the plaintiff made this application. He has however stated therein that his forefathers, generation after generation, were the hereditary trustees of the temple, that he himself from the time of his father's death in 1953 had been in possession and management of all the properties of the temple and that as per the directions of the Assistant Commissioner, Madurai, he was making that application to the Deputy Commissioner for a declaration that he was entitled to hold office as hereditary trustee of the temple. The plaintiff has specifically stated therein that there was no respondent to be impleaded in the application. Though the plaintiff had made such an application he does not appear to have pursued it as is made clear by the order of the Deputy Commissioner in Exhibit B-7. Exhibit B-7 reads-as follows:
This case having come on for final hearing on 1st August, 1957, in the presence of Sri R. Pechimuthu Pillai, one of the objectors and the applicant having been absent and having stood over for consideration to this day, the Deputy Commissioner after considering all the materials placed before him passes the following order.
The application be and is hereby dismissed.
A. Sakkarai, Deputy Commissioner. Placing reliance upon this order the contention of Thiru Kumaraswami is that inasmuch as this pronouncement by the Deputy Commissioner had become final, the plaintiff is barred by res judicata from instituting a fresh action in respect of the same relief. In order to contend that the principle, of res judicata enunciated in Section 11, Civil Procedure Code, is not confined to suits alone, but has a wider application and will be attracted to all matters which come up before a Tribunal for decision, Thiru Kumaraswami places reliance on the decision of the Supreme Court in Bhavanarayanaswamivari Temple v. Bhavanarayanacharyulu (1971) 1 M.L.J. 49. It has been stated therein that the doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well.
11. To meet this argument of Thiru Kumaraswami, Thiru R. Sundaralingam, the learned Counsel for the plaintiff would contend that the order passed under Exhibit B-7 is not one passed on merits and consequently one of the fundamental and pre-requisite features for the application of the doctrine of res judicata is not satisfied and therefore the 1st defendant is not entitled to flourish Exhibit B-7 against the plaintiff and contend that the plaintiff's suit is barred by res judicata.
12. On a consideration of the matter, we find that there is considerable force in the stand taken by Thiru Sundaralingam. It is needless for us to say that if the doctrine of res judicata is to be held attracted to an action so as to disentitle the party instituting the action from claiming any relief thereunder, the former decision on the basis of which the doctrine of res judicata is invoked must be one where the matter directly and substantially in issue in the latter action had been directly and substantially in issue in the former action as well, that the action must have been between the same parties or between parties under whom they or any of them claim, that they should have litigated under the same title, that the litigation should have been in a Court competent to try such subsequent suit and that the former decision had been rendered after the issue had been heard and finally decided by such Court. We do not find anything in Exhibit B-7 to warrant the conclusion that the Deputy Commissioner who passed that order heard the matter in full and rendered his decision on merits. Though a reference is made to an objection filed by one of the objectors to the petition the order itself does not disclose that the Deputy Commissioner applied his mind to the objections raised by the objector and after due consideration of the said objections he passed the order against the plaintiff on merits and dismissed his application. Unless all the essential features which are made mention of in Section 11, Civil Procedure Code, are found to exist in the earlier order, which is sought to be pressed into service to invoke the doctrine of res judicata, the contender cannot be heard to say that the former decision must prevail over the later action as well.
13. As a matter of fact, the Supreme Court itself has held in the case referred to above Bhavanarayanaswamivari Temple v. Bhavanarqyanacharyulu (1971) 1 M.L.J. 49, that the question as to how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations, one of which will be whether that decision determines substantial rights of parties and the other is whether the parties were given adequate opportunities to establish the rights pleaded by them.
14. We may also refer to another decision of the Supreme Court in Skivashankar v. Baikunlh : 3SCR908 , wherein it has been held that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. In Chenniappa Mudaliar v. Commissioner of Income-tax, Madras : AIR1965Mad62 , a Full Bench of this Court has held, while dealing with a matter which arose under the Income-tax Act, that the dismissal of a case for default can in no sense amount to as adjudication on its merits, quite unlike a case of ex parte decision, where there is an adjudication on the merits and that the former cannot operate as res judicata while the latter would. We are therefore unable to accept the contention of Thiru Kumaraswami that the order in Exhibit B-7 would operate as res judicata to the suit instituted by the plaintiff.
15. Thiru Kumaraswami, would however contend that even if Exhibit B-7 does not operate as res judicata it would nevertheless debar the plaintiff from instituting the present action by reason of the provisions contained in Order 9, Rule 9, Civil Procedure Code. His contention is that inasmuch as the plaintiff failed to appear before the Deputy Commissioner on the hearing day while the objector to the petition was present, the plaintiff, in view of the salutary principle of law laid down in Order 9, Rule 9, Civil Procedure Code, is precluded from bringing a fresh action in respect of the same matter and that as long as the order passed under Exhibit B-7 did not stand set aside the plaintiff will have no right to file a fresh action in respect of the same relief. Even with regard to this contention we are unable to agree with Thiru Kumaraswami. Though the Deputy Commissioner had dismissed the application of the plaintiff Exhibit B-6 by his order Exhibit B-7 the said order does not seem to have been acted upon at all. No steps had been taken by the Deputy Commissioner to wrest the management of the temple from the plaintiff and entrust it in the hands of persons appointed by the Board. Even the objector who would not consent to the plaintiff getting an order in his favour declaring him to be the hereditary trustee of the temple does not appear to have taken any action to enforce the order passed in Exhibit B-7. From the records filed as exhibits in the case it is seen that the plaintiff has continued to function as the trustee of the temple and managed its affairs all along. As a matter of fact, the Board itself has called for contribution from the plaintiff in respect of the suit temple even subsequent to the order under Exhibit B-7. This is manifested by the demand notice Exhibit A-10 dated 17th May, 1958 and the reminder notice Exhibit A-11 dated 6th August, 1959. Over and above all these things it is seen that when the plaintiff came forward with his application O.A. No. 59/60 before the Deputy Commissioner the Board did not take the stand that by reason of the former order under Exhibit B-7 rejecting the claim of the plaintiff to function as the hereditary trustee of the temple he was not entitled to seek a fresh declaration from the Deputy Commissioner. Even so, the Commissioner also in the appeal preferred before him did not consider the question as to whether the former decision against the plaintiff disentitled him from seeking for a similar relief in his favour. This defence, viz., that Exhibit B-7 stood in the way of the plaintiff seeking a fresh declaration in his favour was raised for the first time only when the 1st defendant filed his written statement in the suit filed by the plaintiff. Even as in the case of res judicata a defence in respect of an action under Order 9, Rule 9, Civil Procedure Code, is not an inexorable or inflexible defence in the sense that such a defence can be invoked as an answer to a claim made by a party in an action at any stage of the proceedings and that the invoking of such a defence cannot be trammelled by any other rule of law. Of necessity the application of such doctrines of defence must have relevancy to the conduct of parties and cannot be worked out in vacuum. Inasmuch as the Deputy Commissioner and the 1st defendant had failed to treat Exhibit B-7 as a bar to the subsequent action instituted by the plaintiff, it must be held that they had waived such a defence and if they had so waived, it will not be open to them to raise that objection at a later stage, i.e., when the plaintiff came forward with the suit.
16. A Bench of this Court in Moturi Seshayya v. Sri Rajah Venkatadri Appa Row : (1916)31MLJ219 , has held that the plea of res judicata is one which does not affect the jurisdiction of the Court and it is only a plea in bar of a trial of a suit or an issue as the case may be, which a party is at liberty to waive. Even so in respect of a plea under Order 9, Rule 9, Civil Procedure Code, it is one which a party can choose to waive and defend a later action on the strength of his case and on the merits of the controversy. Having invited the Court to render a decision on merits it will be most inequitable of the party is allowed to fall back upon a technical plea and oppose an action of the other party when such a plea was wholly available to him even at the very inception of the action and which plea he failed to put forward and instead chose to hazard a decision of the case on merits. -'We are therefore clearly of the opinion that the further contention of Thiru Kumaraswami, that even if Exhibit B-7 will not operate as res judicata to the suit instituted by the plaintiff, it would nevertheless preclude the plaintiff, under Order 9, Rule 9, Civil Procedure Code, from coming forward with the action cannot be sustained. The resultant position will therefore be that the plaintiff succeeds on both the points which arise for consideration in appeal. In the result, we find that the appeal. is devoid of merit. Consequently the appeal will stand dismissed. There will be no order as to costs.