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Judgment
Venugopal, J.—Plaintiff is the appellant. Defendants 1 to 6, 8 to 10, 12 to 17, 19, 22, and 24 to 26 are the respondents. 21st respondent has been impleaded in the appeal. According to the plaintiff, there is an established usage to bring Sri Vedantha Desikar to Adhyayana Mandapam of Lord Ranganatha on the days of Yugathi, Deepavali, Kanu, etc, and on Thirunakshathiram day into the sanctum sanctorum of Lord Ranganatha with Vadakalai mark and with all peraphernalia like Vadakalai Namam, pathram Vazhithirumanam, etc. In order that the established usage is followed in the temple, the plaintiff made an application to the trustees of Sri Ranganathaswami Devasthanam to take Sri Vedantha Desikar idol to worship Lord Ranganatha on the occasions mentioned above with the Vadakalai mark on his fore-head. The trustees imposed a condition that the idol should bear only the Thenkalai mark on his fore-head. Thereafter, the plaintiff filed an application before the Deputy Commissioner, H.R. and C.E. department, to permit and follow the established usage while taking the idol of Sri Vedantha Desikar with all Vadakalai paraphernalia for Mangalasasanam on the Thirunakshathiram day into the sanctum sanctorum of Lord Ranganathar. The Deputy Commissioner passed an order that the established usage was to take Sri Vedantha Desikar to the sanctum sanctorum of Lord Ranganathar only with the Thenkalai mark. The appeal to the Commissioner, H.R. and C.E. department, having proved futile, the plaintiff filed the suit under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 Act 22 of 1959 (hereinafter referred to as the Act) for cancelling the order of the Commissioner.
On a preliminary objection that the suit is not maintainable without a notice under S. 80, C.P.C., the trial court held that the suit is to set aside the order made by a public Officer, namely, the Commissioner, H.R. and C.E. department, in respect of an act done in discharge of his official duty and such a suit without the issue of notice under S. 80, C.P.C., is not maintainable and on this finding, the suit was dismissed with costs of defendants 1 and 2. Against this decree and judgment of the trial Court, the plaintiff has preferred the present appeal.
Learned counsel for the second defendant contended that a notice under S. 80, C.P.C., is necessary before a suit can be filed against the second defendant. Learned counsel for the plaintiff pointed rut that the second defendant has been impleaded as representing Sri Ranganathaswami Devasthanam and not in his individual capacity. Now as the Executive Officer has been impleaded as representing the devastanam, no notice is necessary.
Relying on a Bench decision of this Court in Lakshmana Shah v. Commissioner, H.R. and C.E. 1971-2-M.L.J. 465=84 L.W. 828 and Santhanagopala Chettiar v. Seetharama Chettiar 1974-1-M.L.J. 215=87 L.W. 857 and also a decision of a single Judge in Commissioner H.R. and C.E v. E.V. Kacherichamy 1981-2-M.L.J. 375=94 L.W. 585 the learned counsel for the appellant contended that no notice under S. 80, C.P.C., is necessary for a statutory suit filed under S. 70 of the Act. On the other hand, the learned counsel for the contesting respondents, relying on a decision of the Supreme Court in Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, and a decision of this Court in Province of Madras v. Vikrama Deo 1943-1-M.L.J. 5(sic)�56 L.W. 50-1943 M.W.N. 56 as well as a decision of the Bombay High Court Ebrahimbhai Vs. State of Maharashtra and Others, contended that the Commissioner, while functioning under the Act, functions only as a Public Officer or Government servant and that therefore, S. 80, C.P.C. is attracted when a suit is filed against a Public Officer in respect of any act purported to be done by such Public Officer in his official capacity, and the order passed is also an act purported to be done by the Public Officer in his official capacity and the suit without S. 80, C.P.C. notice, is not maintainable. The learned counsel also relied on a decision of a single Judge of this Court in Santhanagopala Chettiar v. Seetharama-Chettiar 1968-2-M.L.J. 41 and contended that the Commissioner while functioning under the Act functions only as a Public Officer and the provisions contained in S. 80, C.P.C. will apply to him.
The decision of the single Judge of this Court in Santhanagopala Chettiar v. Seetharama Chettiar 1968-2-M.L.J. 41 came up on appeal before a bench of this Court and the decision of a bench is reported in Santhanagopala Chettiar v. Seetharama Chettiar 1974-1-M.L.J. 215�87 L.W. 182. The question that arose therein was whether the temple is a denominational temple and the Court held that such a question is not coining under S. 63 of the Act, and so, the jurisdiction of the civil court is not ousted. Construing that the suit is one for a declaration that the temple is a denominational one, it was pointed out that the jurisdiction of the civil Court to decide that issue is not ousted. The implication of this judgment is that if it is a matter falling under S. 53 of the Act, against which a statutory suit is provided under S. 70 of the Act, no notice under S. 80, C.P.C., is necessary before the filing of the suit. This aspect has come up for consideration before another Division Bench of this Court in another case and it is in Lakshmana Shah V. Commissioner H.R.C.E. 1971-2-M.L.J. 495�84 L.W. 828. In that case, there was an application under S. 57(b) of the Madras Act 16 of 1951, before the Deputy Commissioner to bold that the office of the Trustee of the suit temple was not hereditary and the appellants are not hereditary trustees The Deputy Commissioner held that the office of trustee was hereditary and it was confirmed by the Commissioner. On a suit filed for cancelling of the order of the Commissioner, it was held that no notice under S. 80, C.P.C. is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions of the Act. This Bench decisions has been uniformly followed in a number of cases as seen from Commissioner H.R. and C.E. v. E.V. Kacherichamy 1981-2-M.L.J. 375�94 L.W. 585 and it has been held that for filing a statutory suit, no notice under S. 80, C.P.C is necessary.
The decision relied on by the learned counsel for the respondent in Province of Madras v. Vikrama Deo 1943 M.W.N. 56-56 L.W. 50 was a suit under S. 14 of the Survey and Boundaries Act and the suit was filed only against the Government. The scope and scheme of the Survey and Boundaries Act are certainly not in pari materia with the scope and scheme of Tamil Nadu Act 22 of 1959. The decision relied on by him in Ebrahimbhai Vs. State of Maharashtra and Others, was again a suit against the Government filed under Rule 13 (2), Schedule II of the Madhya Pradesh Land Revenue Code and being a suit against the Government, it was held therein that S. 80, C.P.C., notice is necessary. In the absence of the State Act, viz., Madhya Pradesh Land Revenue Code, it is difficult to state whether the scope and scheme under that Act is analogous to the Madras Act 15 of 1949. Learned counsel for the respondent is unable to point out any decision arising under Tamil Nadu Act 15 of 1949, holding that even in respect of a statutory suit under S. 70 of the Act, notice under S. 80, C.P.C., is necessary for the maintainability of the suit.
S. 110 of Act 22 of 1959 provides that where a Commissioner or a Deputy Commissioner is making an enquiry or hearing an appeal under Chapter V of Chapter VI the enquiry shall be made and the appeal shall be beard in accordance with the procedure applicable under the CPC to the trial of suits or the hearing of the appeals. The provisions of the Indian Evidence Act and the Indian Oaths Act are also applicable to such enquiries or appeals. The order passed by the Deputy Commissioner under S. 631 is a quasi judicial order passed by him in exercise of his quasi Judicial functions the appellate order passed by the Commissioner is also a quasi judicial order passed by him in exercise of his quasi judicial functions. In respect of enforcing the statutory remedy under S. 70 of the Act, the Deputy Commissioner or the Commissioner have passed quasi judicial orders in exercise of their quasi judicial functions and in that view, they cannot be termed to he public officers purporting to act in their official capacity within the meaning of S. 80, C.P.C. It therefore follows that for enforcing the statutory rights conferred under S. 70 of the Act, notice under S. 80, C.P.C., is unnecessary. Even without that notice, the suit is maintainable. In the result the appeal is allowed, the finding of the trial court on the preliminary issue is set aside and the suit is remitted back to the trial court for trial on the other issues on merits. The parties are directed to bear their own costs in this appeal.