The Commissioner, Hindu Religious and Charitable Endowments, Madras vs V. Krishnaswami and Another

Natarajan, J.—The Commissioner, Hindu Religious and Charitable Endowments. Madras, the first defendant in O.S. 10 of 1965 on the file

of the Court of the Subordinate Judge of Dindigul, is the appellant. The controversy in the suit instituted by the plaintiff related to the office of

hereditary trustee of Sri Kaliamman temple situate in Andipatti village in Periakulam taluk.

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 second defendant in the suit as a non-hereditary trustee and, this fact came to be known to the

plaintiff only when the second 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 second defendant. The

Deputy Commissioner however disregarded the plea of the plaintiff and issued a certificate in favour of the second defendant on 21-10-1963. This

led to the plaintiff filing an application O. A. 59 of I960 before the Deputy Commissioner for assailing the appointment of the second 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. 10 of 1965 and craved for a declaration that he was the hereditary trustee of Sri

Kaliamman temple and for having the order of the Commissioner dated 28-10-1964 in A.S. 6 of 1964 set aside.

The first 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 first 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 first defendant therefore contended that the Area Committee was

well within its rights in having appointed the second defendant as a non-hereditary trustee and that the plaintiff was not entitled to question the

appointment of the second defendant. Yet another defence that was taken by the first 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 first defendant

that the plaintiff was estopped from traversing covered ground once again and that the suit instituted by him was barred by res judicata.

In a separate written statement the second defendant also opposed the claim of the (plaintiff to be entitled to act as the hereditary trustee of the

temple. The second 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 Perjathanakarars 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 fore-fathers had been in exclusive management of the temple as

hereditary trustees was not a genuine claim. The second 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.

On the pleadings of the parties, the learned Subordinate Judge set the following issues for trial:

Whether the plaintiff is the hereditary trustee of the suit temple?

Whether the order of the Board dated 31-7-1939, is final and binding on the Commissioner ?

Whether the suit is barred by res judicata by reason of dismissal of the plaintiff''s petition before the Deputy Commissioner, Tanjore ?

Whether the order appointing the second defendant is not legal and valid ?

Whether the plaintiff is entitled to the declaration prayed for ?

To what relief, if any, is the plaintiff entitled?

After due consideration of the evidence adduced by both sides the learned Subordinate Judge held that the earlier order of the Board. Ex. 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 plaintiffs claim that he was a hereditary trustee of

the temple and therefore found this issue in favour oi 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 conclusion on issues''1 and 3 the learned

Subordinate Judge held on issues 4 and 5 that the order appointing the second 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 first defendant has come forward with this appeal.

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 Ms right as hereditary trustee.

[After considering the evidence his Lordship proceeded]

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 lifetime and he after their lifetime 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 first 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.

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 first defendant''s case in this behalf is the two documents. Exs. B-6

and B-7. Ex. 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 Ex.

B-7, Ex. B-7 reads as follows:-

This case having come on for .final hearing on 1-8-1957 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. Sekkarai, Dv 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 fresh action in respect of the same relief. In order to contend that the principle of

res judicata enunciated in Section 11, Civil P.C. 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 Bhuvanarayanaswamivari

Temple v. Bhavanarayanacharyulu 1971 1 MLJ 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.

To meet this argument of Thiru Kumaraswami, Thiru R. Sundaralingam the learned counsel for the plaintiff would contend that the order passed

under Ex. B-7, is not one passed on merits and consequently one of the fundamental and prerequisite features for the application of the doctrine of

res judicata is not satisfied and therefore the 1st defendant is not entitled to flourish Ex. B-7 against the plaintiff and contend that the plaintiff''s suit

is barred by res judicata.

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 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 Ex. 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 P.C., 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.

As a matter of fact, the Supreme Court itself has held in the case referred to above Bhavanaravanaswamivari Temple v.

Bhavanarayanacharyulu 1971 1 MLJ 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.

We may also refer to another decision of the Supreme Court in Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others, .

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 S. Cenniappa Mudaliar, Madurai Vs. The Commissioner of Income Tax, Madras, 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 an 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 Ex. B-7 would operate as res iudieata to the suit

instituted by the plaintiff.

Thiru Kumaraswami would however contend that even if Ex. 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 P.C. His contention is that inasmuch as the plaintiff

failed to aropear 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 P.C., is precluded from bringing a fresh action in respect of the same matter and that as

long as the order passed under Ex. 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 -- Ex. B-6, by his order Ex. 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 Ex. 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 subseauent to the order under Ex. B-7. This is manifested by the demand notice Ex. A-10 dated

17-5-1958, and the reminder notice Exhibit A-11 dated 6-8-1959. Over and above all these things it is seen that when the plaintiff came forward

with his application O.A. 59 of 1960 before the Deputy Commissioner the Board did not take the stand-that by reason of the former order under

Ex. 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 Ex. 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 first 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 P.C., is not an inexhorable 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

first defendant had failed to treat Ex. 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 it 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.

A Bench of this Court in Moturi Seghavva v. Venkatadri APParao, 1917 31 MLJ 219 : AIR 1917 Mad 950 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 P.C., 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 if 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 Ex. B-7 will not operate as res

judicata to the suit instituted by the plaintiff, it would nevertheless preclude the plaintiff, under Order IX, Rule 9, Civil P.C., 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 merits. Consequently the appeal will stand dismissed. There will ''be no

order as to costs.