J. Subbier vs M. Abboy Naidu

Sadasiva Aiyar, J.—This petition is instituted as a petition filed under both Sections 115 and 141 of the Civil Procedure Code. Section 141

corresponds to the first, paragraph of the old Section 647 and is as follows:

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil

Jurisdiction.

Mr. T.R. Ramachandra Aiyar, who appeared for the petitioner, admitted during the course of the argument that this revision petition was not

filed under both the Sections 115 and 141 of the Civil Procedure Code, but only u/s 115, corresponding to old Section 622, and that Section 141

ought to have appeared in the third ground of the memorandum of the Civil revision petition and not in the title of the petition. The memorandum

contains another mistake. As corrected, or rather fully expanded, the third ground, according to the contention of Mr. T.R. Ramachandra Aiyar,

would be as follows:

The District Judge acted with material irregularity in not disposing of the original petition before him in accordance with the provisions of Section

141 of the Civil Procedure Code, and according to Rule 94 of the Civil Rules of Practice, framed by the High Court under paragraph 2 of Section

652 of the old Civil Procedure Code, corresponding to Section 122 of the new Civil Procedure Code.

I do not think it is necessary to consider Rule 94 of the Civil Rules of Practice as that rule, if it goes beyond Section 141, is ultra vires and so far

as it is in conformity with it, it is unnecessary. While Section 141 contains the qualifying words ""as far as it can be made applicable,"" these words

are omitted in Rule 94 of the Civil Rules of Practice. But such omission cannot make the procedure in regard to suits applicable in their entirety to.

all original petitions if by the very nature of such petitions portions of the procedure relating to suits cannot be made applicable to such petitions It

was on this ground that in a foot-note case in Amdoo Miyan v. Muhammad Davud Khan Bahadur 11 M.L.J. 326, Subramania Aiyar and Davies,

JJ., held that in respect of an application u/s 18 of the Religious Endowments Act, the ordinary procedure in suits as to giving notice to the other

side and to taking evidence before deciding the case had no application, notwithstanding the terms of Section 141 of the old CPC (corresponding

to present Section 141). So in the foot-notecase in Venkateswara, In re 10 M.K 98, a Full Bench of five Judges held that notwithstanding Section

647, no appeal lay against an order passed u/s 18 of the Religious Endowments Act. I, therefore, agree with my learned brother that the nature of

the application u/s 10 of the Religious Endowments Act invoking the District Judge''s power of appointment to the vacancy of a member of the

Devastanam Committee makes that part of the procedure in the trial of suits which relates to the taking of evidence by the Court not obligatory on

the District Judge, though there is nothing, of course, to prevent his taking such evidence. I am farther of opinion, for the same reasons as were

given in the footnote case in Venkatswara, In re 10 M.K 98, that not only are the provisions of the CPC as to an appeal inapplicable to an order

passed u/s 10 of the Religious Endowments Act, but the provisions by way of revision are also inapplicable. In the Privy Council case in Minakshi

Naidu v. Subramanya Sastri 11 M.K 26: 14 I.A. 160 their Lordships treat Sections 14 to 20 of the Act as standing on a somewhat different

footing from Section 10, and while the proceedings of the Court under Sections 14 to 20 are treated as coming within the Ordinary Original Civil

Jurisdiction of the District Court, an order of appointment u/s 10 is treated as outside the Ordinary Civil Jurisdiction. Hence the appointment order

u/s 10 is much more informal than the decision given under any of the Sections 14 to 20. In the case in Somasundara Mudaliar v. Vythilinga

Mudaliar 6 M.L.J. 92, the question whether the High Court could interfere u/s 622 of the old CPC with an order u/s 5 of the Act XX of 1863

appointing a temporary manager, seems not to have been argued and was not considered in the judgment. As the petition in revis on was dismissed

on the merits, that case cannot be treated as an authority for the proposition that the High Court had jurisdiction to interfere in revision u/s 622 with

an order passed u/s 5.

As regards the case Gopala Ayyar v. Arunachallam Chetty 26 M.S 85, the preliminary objection seems to have been taken in that case that no

revision lay, but that was overruled. It was the decision of a single Judge, and though entitled to the greatest respect, it is not binding on us,

especially as even on the merits, interference in revision was refused in that case also.

Coming to the case in Vasudeva Aiyar v. Devasthanam Committee of Negapatam 21 Ind. Cas. 451, apart from the fact that that decision is

now under appeal to the Privy Council, the order revised in that case u/s 115, corresponding to old Section 622, was not an order of appointment

by the District Judge u/s 10 of the Act XX of 1863, but was an order passed by him accepting the result of an election held invalidly by the temple

committee, such acceptance being treated as entitling the elected person to be a committee member. Mr. T.R. Ramachandra Aiyar however,

argued that if the High Court has no jurisdiction to interfere with an appointment u/s 10, grave injustice might result as the District Judge might

appoint a European or Christian gentleman as the member of a committee of a Hindu Devasthanam. He even went so far as to say that a popular

religious rebellion might be the result of such an appointment and that hence a power of revision is necessary in the High Court. I do not intend to

deny the right of the learned Vakil to put his case as strongly as possible, but, one might venture to doubt whether, when there was not the slightest

inclination on the part of the ordinary Hindu public to raise any objection to the control of the secular affairs and even festivals of Hindu

Devasthanams by European gentlemen, who were member of Revenue Boards and Collectors, till Christian Missionary agitaion brought about

their withdrawal from such management (the Hindu public on the other hand being satisfied and even grated with such official control), the

appointment of one of several members of a temple committee by the District Judge (who has the best means of knowing the local opinions and

feeling) of a European (official or even non-official), known for his tolerance and sympathy, could lead to such dire results as predicted by Mr.

Ramachandra Aiyar, notwithstanding the existence of a very few persons here and there in all countries (whether religious persons or irreligious

persons) who entertain an unreasoning hatred (as opposed to the common mild dislike) of everything and everybody foreign. But unless a District

Judge was phenomenally ignorant of law or perverse, the question as to what is to be done if a Christian, actively hostile to the Hindu religion, is

appointed, cannot arise, as Section 8 of the Act XX of 1863 clearly provides that ""the members of the said committee shall be appointed from

among persons professing the religion for the purpose of which the mosque, temple, etc., was founded or is maintained,"" and though that section

relates to the first appointment of committee members by the Local Government after the passing of the Act, the clear intention of the Act seems to

be that when vacancies are filled up u/s 10, the qualification for membership prescribed in Section 8 will continue to apply. If against the clear

intention of the Act as signified by Section 8, the District Judge appoints a bigoted Christian gentleman to fill a vacancy, their Lordships suggest in

Minakshi Naidu v. Submmanya Sastri 14 I.A. 160 that it may be that the person improperly appointed ""could be removed by proceedings

equivalent to proceedings by quo wirranto in England."" (It may be that an injunction suit might also lie). But I might put another case which is far m

ire likely to occur, namely, the District Judge might appoint a very bigoted Vaishnavite as a committee member for a Saivite Temple or a very

bigoted Tengalai sectarian for a Vadagalai Devasthanam. We know that sectarians of the same religion sometimes hate each other more than they

hate an alien religionist. I was this danger that this High Court wanted to prevent by their attempt at interference in the case in Minakshi Nuidu v.

Subramanya Sastri 14 I.A. 160. Turner, C.J., and Muthuswami Aiyar, J., say (see page 29) that the order appointing Minakshi Naidu as a

committee member of the Madura Minakshi Sundareswarar Devasthanam (a Saivite institution) ought to be set aside ""because he"" (Minakshi

Naidu) ""has pronounced himself actively in favour of the cult of Vishnu."" But their Lordships of the Privy Council did not accept Mr. Doyne''s

contention that a person, ""very improper and unfit by reason of his religious qualifications or moral conduct, might be appointed by the District

Judge and that there must be a right either by appeal against the Judge''s order or by suit or in some other way to remove the person so

appointed."" In that case, no doubt, the question directly in point was whether there was a right of appeal against the order of appointment. But the

reasons given by their Lordships to veto the right of appeal also apply in full force to the right of interference by way of revision. If I understand the

report of the arguments in that case rightly, Mr. Doyne, who appeared against Minakshi Naidu before the Privy Council, seems ,to have referred

to the powers of the High Court u/s 622 (the revision section in the old Code) during the course of his arguments as justifying the High Court''s

interference with the District Judge''s order of appointment (see page 31 of the report) and their Lordships do not refer to that section; they say

generally that ""there was an inherent in competency in the High Court to deal with the question brought before it.

I would, therefore, dismiss the petition with costs.

Napier, J.

This is a petition under Sections 115 and 141, Civil Procedure Code, to revise the proceedings of the District Judge of Madura making an

appointment to fill a vacancy in a temple Committee, the ground for revision being an alleged material irregularity in the procedure of the Judge in

that he did not proceed with the case in accordance with Rule 94 of the Civil Rules of Practice and also did not take evidence. It is common

ground that it is not the, practice to apply Rule 94 and that this; procedure followed by the District Judge is the usual one and has never been

challenged before. In reply, it is urged by Mr. S. Srinivasa Aiyanagar that the High Court has no jurisdiction to interfere and that Rule 94 does not

apply to such proceedings as these. As to the right to revise, there are some reported cases of the exercise of this power, Somasundara Mudaliar

v. Vythilinga Mudalir 6 M.L.J. 92, Amdoo Miyan v. Muhammad Davud Khan Bahadur 11 M.L.J. 326, Gopala Ayyar v. Arunachallam Chetty 26

M.K 85, Vasudeva Aiyar v. Devasthanam Committee of Nigapatam 21 Ind. Cas. 451, but Mr. S. Srinivasa Aiyangar seeks to distinguish them on

two sets of grounds, namely, (1) that proceedings under Sections 5 and 10 of the Act stand on a different footing to those under Sections 14, 16

and 18 and (2) that where the Court has interfered under the above sections,""it has been on a preliminary legal question giving rise to the exercise

of the jurisdiction. For reasons that will appear later I feel the force of the first distinction, but I am unable to accept the latter and think that if we

are to uphold his contention that no revision lies, we must hold that Somasundara Mudaliar v. Vythilinga Mudaliar 19 MS 285, Gopala Ayyar v.

Arunachallam Chetty 26 M.K 85 and Vasudeva Aiyar v. Devasthanam Committee of Negapatam 21 Ind. Cas. 451 are wrongly decided. Mr. S.

Srinivasa Aiyangar is quite prepared to, argue that they are wrong, relying on the decision of the Privy Council in Minahshi Naidu v. Subramanya

Sastri 11 M.K 26 : 14 I.A. 160. I have to observe that in each of the three cases Minakshi Naidu v. Subramanya Sastri 11 M.S 26 was relied on

and in one case this point was not taken and in the other two it was overruled by the Court. I desire to express no decided opinion on the point

myself as I think the petition fails on the second point, but I have the gravest doubts whether these proceedings are a case"" within the meaning

Section 115. In my view Rule 94 is inapplicable in proceedings u/s 10 of the Act. These rules are made under the Civil Procedure Code, under a

number of special Acts, and under all o her powers of the High Court. The Religious Endowments Act is not one of the Special Acts, for it

contains no provision for the making of rules. It is sought, however, to find the power in Section 141 of the present Code, but to invoke the aid of

that section, we have to ascertain first whether the procedure in the Code can be made applicable. This most depend on the nature of the

proceeding and the materials on which the order o decision is to be based. I did not think that Rule 94, read with the definitions in Rules 4(8) and

(9), carry us any further. It is urged that under the old rules, there were no such definitions as appear in Rule 4, although both sets of rules were

made under the same Code, which contains Section 647 in the same terms as Section 141 of this Code and though the rule-making power existed

u/s 652, and that, therefore, the necessity for an original petition could not have been insisted on prior to 1905 but this argument is hardly

permissible, as the High Court may have intended to extend the scope of the rules in 1805. I think that what we have to decide is as stated above

and that we must look at the Act in light of the decision of the Privy Council to decide whether Section 141 makes the Code or any rules made

under the Code applicable to these proceedings. Now Minakshi Naidu v. Subramanya Sastri 14 I.A. 160 clearly decides one thing, namely, that

there is no ""Civil suit'' in proceedings u/s 10 and that the order is not a decree within the meaning of the Code of 1879, which first introduced the

language now adopted, with slight modification. The Privy Council, dealing with the exercise of the Dowers u/s 10, calls it the right of appointing a

member of the committee"" This phrase seems to me indicative of its nature. It is not a right to apply nor a duty of the Court to appoint, and it is not

a matter of Ordinary Civil ""Jurisdiction."" These phrases used by the Privy Council seem to me to be inapt for judicial proceedings. Again, the Privy

Council clearly identify the Court with the Judge, saying so in so many words. Then how is the right to be exercised? It is ""discretionary"": that may

not carry the matter very far; but it is to be exercised by ""a person who has the best means of knowing the movements of local opinion and feeling,

If the Privy Council meant that the selection is to be made on these considerations, the petition must obviously fail for there can obviously be little

use of sworn evidence when the Judge has to apply what he could not use in ordinary proceedings, his own knowledge by hearsay, repute or other

wise of local opinion and feeling. I venture very respectfully to say that this test is to be gathered from the terms of the section. The appointment is

to be filled up primarily by election; failing that, by selection either by the Committee or by the Judge. Election and selection by the Committee are

surely intended to procure the person most desirable according to the local opinion and feeling. Again, Section 8 lays down that the committee

members are to be appointed ""as far as can be ascertained in accordance with the general wishes of those interested."" It seems to me that these

words are but reproduced in another form in the language of the Privy Council. No evidence is taken by the Committee in selecting. Why should

evidence be taken by the Judge? No procedure is laid down for the Committee and none for the judge and yet the Legislature was careful to

provide the procedure when dealing with arbitration u/s 17 and sanction to sue u/s 13 (Vide also Section 14, power to direct special

performance). For the above reasons 1 am clear that no part of the procedure in a suit is applicable and that, therefore, Section 141 of the CPC

and the Rules of Practice do not affect these proceedings. We are assed to interfere under the Charter Act and obviously when the Judge has, as

in this case, carefully considered the rival claims such an application could not be contemplated by the petitioner. I would dismiss this petition with

costs.