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Muthuswami Gurukkal Vs. Ayyasami thevan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1958)1MLJ256
AppellantMuthuswami Gurukkal
RespondentAyyasami thevan and ors.
Excerpt:
- .....position than that of strangers and trespassers so far as these properties are concerned. the learned judge further held that even on grounds, of prima facie case, irreparable injury or balance of convenience there was no justification for the grant of an interim injunction. whether the requirements of order 39, rule 1(b) or those of order 39, rule 2, were satisfied was a question, as we pointed out earlier, which the learned subordinate judge himself did not discuss or decide.9. we have to decide first to what extent the jurisdiction vested in a civil court regulated by the provisions of rules 1 and 2 of order 39 was curtailed or taken away by the relevant portion of section 62(1) which runs:but it (the civil court) shall have no power to stay the commissioner's order pending the.....
Judgment:

P. Rajagopalan, C.J.

1. These appeals by' the plaintiffs arise out of interlocutory proceedings under Order 39, Civil Procedure G6de, in two suits O.S. No. 264 of 1956 and O.S. No. 267 of 1956 instituted under Section 62 of Madras Act XIX of 1951.

2. The Area Committee appointed defendants 1 to 5 as the trustees of the suit temples. That was how they were arrayed in both the suits. In O.S. No. 267 of 1956 the plaintiff and defendants 6 to 12 claimed that they were the hereditary trustees of the temples. In the other suite O.S. No. . 264 of 1956, the 3rd plaintiff, Narasimha Ayyangar, claimed he was,the hereditary trustee along with two others. Those claims were negatives by. the Deputy. Commissioner of Hindu Religious and Charitable Endowments in proceedings under Section 57(b) of Act XIX. Of 1951, and that decision was upheld by the Commissioner. The plaintiffs filed the suits for which statutory provision was made in Section 62 of the Act. The main reliefs asked for in O.S. No. 267 of 1956 were (1) to declare the plaintiff and defendants 6 to 12 as hereditary trustees of the temple and (2) to set aside the order of the Commissioner refusing to recognize the plaintiff and defendants 6 to 12 as hereditary trustees. The reliefs asked for in the other suit O.S. No. 264 1956 were in similar terms.

3. It should be noted that the, plaintiff and defendants 6 to, 12 in the suit referred to above claimed that they were also the hereditary archakas of the temples in question. There was no occasion to investigate that claim in proceedings under Section 57(b) of Act XIX of 1951 and referred to above. We shall proceed on the assumption that they were in fact archakas rendering service in the suit temples. A similar assumption will be made in the case of the 3rd plaintiff in O.S. No. 264 of 1956, Narasimha Ayyangar. , It was common ground before us that1 the main, if not the only source of income of the temples, was the comparatively small extent of lands, about 6.83 acres wet lands, in L.P.A. No. 155 of 1957 and about a similar extent in L.P.A. No. 162 of 1957. Whether; the temples owned only the melvaram or both the kudivaram and melvaram in the lands was not a question that arose for determination either in the proceedings under Section 57(b) or in the suits that were instituted. Here again we shall proceed on the assumption that the lands belonged to the temples.

4. After instituting the suits, each of the petitioners-appellants applied for an interim injunction to restrain defendants 1 to 5, the trustees appointed by the: Area Committee, from interfering with the possession of the petitioner and his co-trustees pending disposal of the suit.

5. The applications were dismissed by the learned Subordinate Judge arid Ramaswami, J., dismissed the appeals G.M.A. Nos. 152 and 155 of 1957 which the petitioners preferred. The appeals before us were presented under clause 15 of the Letters Patent against the decision of Ramaswami, J..

6. Two other features of the case have to be set out. Learned Counsel for the appellants represented that the real relief that the plaintiffs wanted at this stage was that the plaintiff and defendants 6 to 12 in O.S. No. 267 of 1956 and the plaintiffs in the other suit should be left in possession and management of the lands till the disposal of the suits. It is from the produce of these lands that they who have been rendering archakam service in the temples as well, have to maintain themselves. There is no provision for a separate remuneration for the archakas, or for meeting the expenses of the puja. The other feature is that defendants 1 to 5 applied,for the issue of a certificate under Section 87 of Act XIX of 1951 to recover possession of these lands from the plaintiffs. That was granted with reference to the temples involved in L.P.A. No. 162 of 1957. The other application has yet to be disposed of

7. Though the learned Subordinate Judge recorded that the question for determination was whether there were sufficient grounds to issue the injunction asked for, he refused that relief only on the ground, that the civil Court had no jurisdiction to grant it in a suit filed under Section 62 of Act XIX of 1951. He was of the view that an earlier decision of Ramaswami, J., reported in Nallamotku Chimpireyya, In re1, was authority for that position. The learned Subordinate Judge recorded:

What is sought to be done by this petition is to stay the enforcement of the order of the Commissioner appointing respondents as trustees. That cannot be done, as civil Court has-no right to stay the Commissioner's order pending disposal of the suit.: My finding on this point, therefore, is that the petitioners are not entitled to get temporary injunction.

8. Ramaswami, J., was also apparently of the same view on the issue of jurisdiction. He stated:

Therefore, when the civil Court cannot stay the order of the Commissioner pending of the suit it means that Courts cannot, for instance, injunct the lawfully appointed trustees from taking possession of the properties from persons who claim to be hereditary trustees and have not been found to be such and who till they are declared by the Court to be such would be in no better position than that of strangers and trespassers so far as these properties are concerned.

The learned Judge further held that even on grounds, of prima facie case, irreparable injury or balance of convenience there was no justification for the grant of an interim injunction. Whether the requirements of Order 39, Rule 1(b) or those of Order 39, Rule 2, were satisfied was a question, as we pointed out earlier, which the learned Subordinate Judge himself did not discuss or decide.

9. We have to decide first to what extent the jurisdiction vested in a civil Court regulated by the provisions of Rules 1 and 2 of Order 39 was curtailed or taken away by the relevant portion of Section 62(1) which runs:

but it (the Civil Court) shall have no power to stay the Commissioner's order pending the disposal of the suit.

Even at this stage we must record that Mr. Kumaramangalam refrained, and in our opinion very properly so, from contending that the civil Court had no jurisdiction at all to grant any interim relief in such circumstances as arise in this case, that is, in suits instituted under Section 62 of the Act. If the relief is permissible under Order 39, Rules 1 and 2 and if the interim relief asked for does not come within the mischief of Section 62(1), then the right and jurisdiction of the civil Court to grant such interim relief is not affected by Section 62(1). Learned Counsel, however, urged that the appellants had not established any grounds in their applications for the grant of the discretionary reliefs.

10. In Nallamothu Chimpireyya, In re : AIR1953Mad219 , one Verayya was appointed the trustee. He obtained the requisite certificate under Section 87 of Act XIX of 1951 and in due course obtained an order from the Joint Magistrate for the delivery of the lands that belonged to the temples, which were in the possession of the petitioners in that case, the ex-trustees. The petitioners filed a suit under Section 62, and in that suit they obtained an interim injunction to restrain Veerayya from taking possession of the lands. They subsequently applied to this Court to exercise its revisional powers under the Criminal Procedure Code and set aside the order of the Joint Magistrate who had ordered the delivery of possession of the lands to the trustee Veerayya. That relief was refused by Ramaswami, J. In the course of those criminal revision proceedings the learned Judge could not and did not go into the question, whether the interim injunction granted by the civil Court should be vacated or treated as non est. in law. Apparently the learned Judge did not consider what the effect would be of leaving both the orders, intact, that of the criminal Court directing delivery of possession of the lands to Veerayya, and that of the civil Court prohibiting Veerayya from taking possession of those lands. We are not concerned now with the correctness or otherwise of the final decision of Ramaswami, J., in that case. What he observed at page 442 was:

In fact Section 62 of the new Act clearly lays down that an aggrieved party can file a suit; but the civil Court while vested with the jurisdiction to modify or cancel such order shall have no power to stay the Commissioner's order pending the disposal of the suit.

No exception can be taken to that passage. It was merely a re-statement of the law as embodied in the statutory provisions of Section 62(1). We are, however, still left with the question, what was it that Section 62(1) forbade the civil Court to do.

11. If the ordinary jurisdiction of the civil court is to be ousted, it must be by the express words or by necessary intendment of the statutory provision on which reliance is placed. The ban imposed by Section 62(1) can be applied only to the extent warranted by the language of that statutory provision. The rest of the jurisdiction of the civil Court, that for instance regulated by Rules 1 and 2 of Orders 39 will remain intact. It is neither desirable nor even possible to devise a formula of universal application to define the precise scope of the bar imposed by Section 62(1) of Act XIX of 1951. We can concern ourselves in these appeals only with the question whether the reliefs asked for by the plaintiffs-appellants fell within the mischief of the statutory ban imposed by Section 62(1).

12. The relief asked for before the Deputy Commissioner was a declaratory one, that the plaintiff and defendants 6 to 12 in one case and the 3rd plaintiff and his fellow archakas in the other were, the hereditary trustees of the temples in question. That relief was refused. The suits were to establish that right and to set aside the order of the Deputy Commissioner as confirmed by the Commissioner. There was nothing in the operation of that order as such to be stayed pending disposal of the suits. Nor was the stay of the operation of those orders as such asked for by the plaintiffs in express terms. What the appellants now seek is that their possession of the temple lands should not be interfered with by the trustees, defendants 1 to 5 till the disposal of the suits. The grant of such a relief will not amount to stay of the operation of the Commissioner's order till the disposal of the suits, within the meaning of Section 62(1). There was no direction of the Deputy Commissioner in his order which related to the lands or of any of the other properties of the temples. There could not have been such a direction in proceedings under Section 57(b) of the Act. The order of the Deputy Commissioner would be left intact even if the restricted interim relief now asked for by the appellants is granted. Ramaswami, J., it should be remembered observed, in his judgments which have been appealed against:

Therefore when the civil Court cannot stay the order of the Commissioner pending the disposal of the suit it means that Courts cannot, for instance, injunct the lawfully appointed trustees from taking possession of the properties from persons who claim to be hereditary trustees.

With all respect to the learned Judge, we are unable to accept that as a correct statement of the scope of Section 62(1) of Act XIX of 1951. The Civil Court has jurisdiction in the circumstances of this case to grant the interim relief asked for by the plaintiffs. Whether in the exercise of its discretion, the Court should grant that relief is, however, a wholly different problem.

13. As we pointed out earlier, the learned Subordinate Judge did not have any occasion to go into the question, whether in the exercise of the jurisdiction that he had he should grant the interim relief asked for, that is, he had no occasion to decide and he did not decide whether the requirements of Order 39, Rule 1 or Rule 2 had been satisfied by the petitioners. At one stage we thought, if the parties could come to an agreement before us, we could dispose of these interlocutory proceedings by a final order. That, however, has not been possible. The material on record is not sufficient either for us to come to a decision one way or the other on the question whether in the circumstances disclosed in the affidavits of the petitioners-plaintiffs they made out any case at all for the grant of any interim relief. No doubt the interim relief originally asked for was couched in very wide terms. But as we pointed out earlier, at this stage before us the relief was confined to the question, whether the appellants who claimed to be the hereditary trustees and who are certainly the archakas of the temples, should be dispossessed of the lands. Mr. Kumara-mangalam, learned Counsel for the respondents, represented to us that the lands themselves would appear to have been leased out and that tenants were in possession. Even that does not appear from the records before us. In these circumstances we think the only appropriate course is to set aside the orders of the learned Subordinate Judge and the orders of Ramaswami, J., who confirmed those orders and to remand the proceedings for disposal afresh by the learned Subordinate Judge. We pointed out that the material on record was not sufficient for us to come to any conclusion. This is a case where we think the parties should be given a further opportunity by the learned Subordinate Judge to supplement their affidavits and, if necessary, to place the available material on record for the learned Judge to decide whether in the circumstances so established the petitioners should he granted any interim relief. Nothing we have said in this judgment should be construed as in any way curtailing the exercise of the discretion of the learned Subordinate Judge. We have dealt with only the question of jurisdiction. If the requirements of Order 39, Rules 1 and 2 are satisfied, in the circumstances of this case, Section 62(1) does not operate as a bar for the grant of the relief permissible under those statutory, provisions. We have already pointed out that it was in very wide terms that the petitioners-appellants asked for interim relief. The learned Judge in disposing of the applications afresh in the light of this judgment will keep in mind that the question . for determination before him will be confined to the lands.

14. The appeals are allowed. Costs in the proceedings in all the Courts will be, costs in the cause and will be provided for in the revised order to be passed by the learned Subordinate Judge.


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