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Paruchuru Sudarsana-charyulu Legal Representative of the Deceased Paruchuru Venkatacharyulu Vs. Kollimarla Suryanarayana and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in107Ind.Cas.130
AppellantParuchuru Sudarsana-charyulu Legal Representative of the Deceased Paruchuru Venkatacharyulu
RespondentKollimarla Suryanarayana and anr.
Cases ReferredAllabaksh Mira Mohadeen v. Sethi Chinna Fakruddin Sahib
Excerpt:
civil procedure code (act v of 1908), section 93 - sanction larder signed by sheristadar for collector, whether valid--omission to pray for relief sanctioned, effect of. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation..........especially when we find in the petition for sanction that item no. 1 alone is set out as the temple property.9. it is next argued that rs. 25 per month for the archaka is too high having regard to the income of the temple and also in view of the fact that the temple is to be repaired. the subordinate judge grants rs. 25 a month on the footing that the income is rs. 360 a year. if the income should be less in a particular year, the decree provides that there should be a proportionate reduction in the salary of the archaka. so this sum of rs. 25 does not represent the permanent salary of the archaka burdened on the temple income which would prejudice the interest of the temple. if any repairs are to be done to the temple, we think there is nothing to prevent the trustees from.....
Judgment:

1. This appeal arises out of a scheme which has been settled by the Subordinate Judge of Bapatla, with reference to the temple of Sree Venugopala swami, There are several items of property mentioned in the plaint. The finding of the Subordinate Judge is that the temple Owns only item No, 1 and that the income is about Rs. 360 per annum and that items Nos. 2 to 10 are the separate properties of the archakas. The archakas' contention was that even item No. 1 was a gift to them burdened with the expenses of the temple. The Subordinate Judge found that it was a gift to the god and not to the archakas burdened with any trust. He framed a scheme appointing trustees. Against this decree the appellant, one of the archakas, raises certain contentions. His main grounds are that the suit is bad as the plaint, as at present filed, does not conform to the sanction given by the Collector; secondly, that there is no necessity for a scheme being framed; and thirdly, that the amount given for expenses is too small. A memorandum of objections has been filed by the respondents objecting to the judgment in so far as it declared that items Nos. 2 to 10 do not belong to the temple and also objecting to Rs. 25 a month for the archakas' Service. So far as item No. 1 is concerned, it is clear from the inam statement and the register that the property was treated as the property of the god. There is no suggestion that it was a property given to the archakas burdened with any trust. We think that the Judge was right in holding that it was the property of the temple and not of the archakas.

2. The next contention is that the suit ought to have been dismissed as it did not conform to the sanction given. The sanction given is filed as Exs. B and B.1 and the petition for sanction is filed as Ex. IV. The petition states that the property item No. 1 which is 30 acres and 50 cents is in the possession of the archaka Paruchuru Sudarsanacharyulu, that the yearly income is Rs. 488, that Rs. 840 is paid to the Sircar every year towards cess; that the total balance of this amount is being saved by the archaka and he is using the same for purchasing sen lands, etc., on his private account and that he is not using the same for the temple purposes. The petition also refers to' some nominal dharamakarthas of the temple, and states that they do not take any interest in the temple affairs. It also refers to the ruined nature of the temple premises and the prayer is that permission should be granted to them to file a scheme suit against the dharmakarthas nominally appointed for the temple and the archaka. The order, Ex. B, is that permission under Section 93, Civil Procedure Code, is granted to two individuals mentioned therein to file a scheme suit in respect of the inam lands attached to the temple of Sri Vengopalaswami Varu. Ex. B.1, is the supplemental order which says, 'the petitioners are informed that all suit reliefs may be prayed for in their plaints and there is no necessity to include them in orders issued from this office.'

3. This was in answer to the petition asking the Collector to specify the reliefs which should be asked for in the plaint. It is argued that Ex. B.1 is not a proper order, because it purports to be signed only by the sheristadar and not by the Collector. It is suggested that it was the sheristadar who made the order and not the Collector. If the order was really passed by the sheristadar there can be little doubt that such an order is invalid. Somchand Bhikhabhai v. Chhagan Lal Khubchand 10 Ind. Cas. 803 : 35 B. 243 : 13 Bom. L.R. 207 will be a case in point. But Ex. B.1 purports to be an order passed by Mr. Rutherford. All that Ex. B1 shows is that it was signed by the sheristadar for Collector and above the signature of the sheristadar appear the words 'by order.' There is no evidence to show, that the sheristadar passed the order without reference to the Collector. Having regard to the fact that Ex. B.1 mentions the name of the Collector, Mr. Rutherford, as the person who passed the order it is impossible to hold that the sheristadar passed the order suo moto without reference to the Collector. Exhibit B.1 shows that it is signed by the sheristadar under the orders of the Collector. The Collector is not bound to sign every order that is issued to third persons and there is nothing wrong in the Collector delegating his power of signing the order to the sheristadar, and such an official act of the sheristadar is presumed to have been done properly until the contrary is proved. The order, as it stands, is perfectly valid.

4. The more substantial objection is that the plaint does not strictly conform to the order granting sanction, that the lands comprised in the plaint do not cover those in the petition, and that the nominal trustees mentioned in the petition have been omitted in the plaint. So far, as the properties added are concerned they are distinct properties and as regards those properties the Subordinate Judge has dismissed the suit holding that they are not properties which belong to the temple.

5. As regards the nominal trustees mentioned in the petition it does not appear who they are and the question is whether the omission of those trustees in the plaint, is fatal to the plaintiff's case. The contention of the appellant's Vakil is that any omission is sufficient to invalidate the suit filed in pursuance of the order and reliance is placed on Srinivasa v. Venkata 11 M. 148 : 4 Ind. Dec.103 and Allabaksh Mira Mohadeen v. Sethi Chinna Fakruddin Sahib 85 Ind. Cas. 1045 : 21 L.W. 71 : A.I.R. 1925 Mad 636. It seems to us that in dealing with cases where there is an omission as regards certain reliefs which are sanctioned the test is to be whether such omission is a material omission, one from which it can be said that it so alters the scope or character of the suit that if this matter was before the Collector when the sanction was given he would in all probability not have sanctioned the suit in the form in which it is ultimately brought For example there may be cases where some of the main reliefs for which sanction has been given were omitted, owing to collusion or fraud or other reasons and such an omission is not in the interest of the temple. In such cases, of course, there is ground for holding that a suit so framed which contains an omission so material that in all probability sanction would not have been given if a prayer had been made to the Collector or to the Advocate General to frame a scheme with only the prayers ultimately stated in the plaint, would vitiate the proceedings as not being in substantial compliance with the sanction given. But it seems to us that there is no principle or reason in holding that any omission which is immaterial and which would not affect the interests of the temple would be sufficient to vitiate the proceedings and the plaint filed in pursuance of the sanction. If Srinivasa v. Venkata 11 M. 148 : 4 Ind. Dec. 103 or Allabaksh Mira Mohadeen v. Sethi Chinna Fakruddin Sahib 85 Ind. Cas. 1045 : 21 L.W. 71 : A.I.R. 1925 Mad 636 decided anything more than what we stated above, we would respectfully express our dissent.

6. As regards the addition of claims the position is different. The addition of claim may be treated as a claim made without sanction and. as such it is liable to be dismissed. There is no reason why the mere addition of a claim should render the whole suit liable to be dismissed. It cannot be worse than a case of misjoinder where the parties will be confined to such portion of the claim as is not open to objection. In the present case there is no such omission as would render the whole proceedings invalid.

7. The third point is that the scheme is quite unnecessary. We think that such a scheme is necessary, especially when we look into the contentions of the archakas that the property is their own property burdened with a trust. In all these cases it is better to have a separate trustee who can supervise the work of the archakas and see that the temple affairs are properly conducted. There may be cases where the archakas have by a long custom acquired the position of trustees. But in the present case there is not such proof. Under these circumstances the appeal fails and is dismissed with costs.

8. As regards the memorandum of objections we do not think there is sufficient evidence to support the view that items Nos.2 to 10 have been acquired out of the surplus income of the temple land of item No. 1. We have to note, that the archakas have to be remunerated for their services and the income of the temple is not shown to be such as to leave a surplus out of which lands could be purchased. We think that the Subordinate Judge was right in holding that items Nos. 2 to 10 are not the properties which belong to the temple especially when we find in the petition for sanction that item No. 1 alone is set out as the temple property.

9. It is next argued that Rs. 25 per month for the archaka is too high having regard to the income of the temple and also in view of the fact that the temple is to be repaired. The Subordinate Judge grants Rs. 25 a month on the footing that the income is Rs. 360 a year. If the income should be less in a particular year, the decree provides that there should be a proportionate reduction in the salary of the archaka. So this sum of Rs. 25 does not represent the permanent salary of the archaka burdened on the temple income which would prejudice the interest of the temple. If any repairs are to be done to the temple, we think there is nothing to prevent the trustees from applying to the public for donations and repair the same. We do not see any reason to interfere with the discretion of the Subordinate Judge as regards Rs. 25 granted to the archaka as salary. The memorandum of objections fails and is dismissed with costs.


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