Tholappa Iyengar, alias Alagar Iyengar vs The Executive Officer, Sri Kallagar Devasthanam, Alagarkoil, Madurai, etc. etc.... 8 The Commissioner, H.R. and C.E., Madras -34

Mishra J.

These appeals have been heard together by us on a common question whether a suit under S. 70 (1) and (2) of the Tamil Nadi Hindu Religious

and Charitable Endowments Act,1959 hereinafter referred to as ""the Endowments Act"", is maintainable against an order of the Commissioner,

who is made a party-defendant, without a notice under S. 80 of the Code of Civil Procedure, delivered to him or left at his office, stating the cause

of action, the name, description and place of residence of the plaintiff and the relief which he claims. We propose accordingly to deliver a common

judgment on the question of notice and deal separately with other issues in the appeals. The Endowments Act, amending and consolidating the laws

relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu, provides

under S. 9 thereof for the appointment of the Commissioner and such number of Deputy and Assistant Commissioners to carry out the purposes of

the Act, and appointment to the post of Commissioner by the Government of the State by transfer from among the members of the Madras State

Higher Judicial Service or of the Madras State Judicial Service or of any other service, or by promotion from Deputy Commissioners, or by direct

recruitment and for appointment to the post of Deputy Commissioner, by transfer from among the members of the Madras State Judicial Service

or of any other service, or by promotion from Assistant Commissioners, or by direct recruitment or by agreement or contract, S. 12(l) of the

Endowments Act has declared that the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants including

executive officers of religious institutions employed for the purposes of this Act shall be servants of the Government and their salaries, allowance,

pension and other remuneration shall be"" paid in the first instance out of the Consolidated Fund of the State, and the Commissioner shall, out of the

Tamil Nadu Hindu Religious and Charitable Endowments Administration Fund, repay to the Government sums paid by the Government to the

Commissioner, Deputy Commissioners and others. Chapter V of the Endowments Act deals with inquiries. Matters which can be inquired into by

the Deputy Commissioner are enumerated under S. 63 of the Endowments Act. The Deputy Commissioner is also empowered to settle schemes.

The Commissioner however, has been given the controlling power and the power to settle schemes and the appellate power against any order

passed by the Deputy Commissioner in exercise of any of the powers under Chapter V. His appellate and re-visional powers are stated in S. 69 of

the Endowments Act and it reads as follows:

(1) Any person aggrieved by any order passed by the Deputy Commissioner under any of the foregoing Sections of this chapter may, within sixty

days from the date of the publication of the order or of the receipt thereof by him, as the case may be, appeal to the Commissioner and the

Commissioner may pass such order thereon as he thinks fit.

(2) Any order passed by the Deputy Commissioner in respect of which no appeal has been preferred within the period specified in sub-section (1)

may be revised by the Commissioner suo-motu and the Commissioner may call for and examine the records of the proceedings to satisfy himself as

to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed by the Deputy Commissioner. Any

such order passed by the Commissioner in respect of an order passed by the Deputy Commissioner shall be deemed to have been passed by the

Commissioner on an appeal preferred to him under sub-section(l).

(3) Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section, or in which no

suit has been instituted in the Court within the time specified in sub- section (1) of S. 70 maybe modified or cancelled by the Commissioner if the

order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in Section 66.

The succeeding Section 70 with which we are concerned has provided for a suit in the Court against orders of the Commissioner under subsection

(1) or sub-section (2) of S. 69, and relating to any of the matters specified in S. 63, S. 64 or S. 67, that is to say, matters into which the Deputy

Commissioner can hold inquiry, matters as to settlement of a scheme of administration, and matters relating to the properties and funds of the

defunct religious institutions, or under Ss. 63,64 or 67 read with sub-Ss. (l)(a), (2) or (4)(a) of S. 22 or under S. 65, within ninety days from the

date of the receipt of such order by any person aggrieved, and sub-section (2) reads:

71(2) Any party aggrieved by a decree of the Court under sub-S. (1) may within ninety days from the date of the decree, appeal to the High

Court.

Before we embark upon further investigation of the true nature and scope of a suit under S. 70 (1) of the Endowments Act, we may at the

outset refer to a judgment of a Division Bench of this Court in Lakshmana Shah v. Commissioner, H.R. & C.E., Madras (84 L.W. 828). In that

case a certain person filed an application under S. 57 (b) of the Madras Hindu Religious and Charitable Endowments Act, 29 of 1951, which was

repealed by the Endowment''s Act with which we are concerned, before the Deputy Commissioner claiming to be the hereditary trustee of a

temple. The Deputy Commissioner decided that the office of trusteeship of the suit temple was not hereditary and that the applicant was not a

hereditary trustee. The applicant preferred an appeal to the Commissioner. The Commissioner dismissed the appeal observing that the Area

Committee will select trustees from the members of the Somavamsam Bhuja Kahatriya Kulam, a community or a denomination. Aggrieved by this

order, a suit, called in the judgment of the Court, a statutory suit, was filed in O.S. No. 411 of 1960 on the file of the City Civil Court, Madras, for

setting aside or canceling the order of the Commissioner and to recognize the claim to the hereditary trusteeship of the suit temple as well as for a

declaration that the members of the Somavamasam Bhuja Kahitriya Kulam or caste were a religious denomination and were entitled to exclusively

own and conduct the affairs of the temple through their representatives, etc. The Third Assistant Judge, City Civil Court, negatives the claim of the

plaintiffs that they were the hereditary trustees of the suit temple. He, however, found that the suit temple was a denominational one having been

established by a people called Somavamsam Bhuja Kahatriya Kulam, who hailed from Nepal and settled down in Chintadripet and Triplicane,

Madras and founded the suit temple solely for their benefit, but refused to grant a declaration to that effect as no notice was given under S. 80,

C.P.C. The appeal came to be heard by a Division Bench. The Division Bench observed:

We have already referred to the fact that the appellants filed an application before the Deputy Commissioner, Hindu Religious and Charitable

Endowments, only under S. 57 (b) of the Act, and not under S. 57 (a) of the Act as to whether the temple is a religious institution within the

meaning of S. 6 (15) of the Act. 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. Even assuming that such a statutory suit could be combined with a suit in which the applicability of

the Act to the suit temple is challenged, the requirements of the valid institution of the later suit should be complied with.,

A learned single Judge of this Court in the case of His Holiness Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesikan, 44th Jeer of Sri

Ahobhila Math v. Commissioner, H.R. & C.E., etc. (98 L.W. 303) (hereinafter referred to as ''Sri Ahobhila Math''s case), however, made a

detailed examination of this question with reference to the provisions in the instant Endowments Act and answered that a notice under S. 80,

C.P.C. is unnecessary for a suit under S. 70 of the Endowments Act, for setting aside the order of the Commissioner confirming that of the Deputy

Commissioner before whom the plaintiff initially had applied for a direction claiming that there was an established usage to bring Sri Vedantha

Desikar to Adhyayana Mandapam of Lord Ranganatha on the days of Yugathi, Deepavali, Kanu, etc. and on Thirunakshthiram day into the

sanctum sanctorum of Lord Ranganatha with Vadakalai mark and with all parapnernalia with Vadakalai Namam, Pathram, Vazhithirumanam, etc.

and (the plaintiff) had before the Deputy Commissioner prayed for a direction to the trustees to follow the established usage as pleaded by him. He

considered the preliminary objection that the suit is not maintainable, on which ground the trial court had dismissed the suit, by making a reference

to the case of Lakshmana Shah''s case (84 L.W.838) (supra) and the case of Santhanagopala Chettiar v. Seetharama Chettiar (87 L.W. 182),

another Division Bench judgment of this Court and a decision of a learned single judge of this Court in the case of Commissioner, H.R. & C.E. v.

E.V. Kacherichamy (94 L.W. 585), in these words:

The decision of the single judge of this Court in Santhanagopla Chettiar v. Seetharama Chettiar (1968-2 ML.) 41) came up on appeal before a

Bench of this Court and the decision of the Bench is reported in Santhanagopala Chettiar v. Seetharama Chettiar (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 coming 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. (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 hold 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 office of trustee was hereditary and it was confirmed by the Commissioner. On a suit filed for canceling of the

order of the Commissioner, it was held that 0''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 decision has been uniformly followed in a number of cases as seen from

Commissioner H.R. & C.E. v. E.V. Kacherichamy (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.

Before the learned judge in SriAhobhila Math''s case (98 L.W. 303) (supra), a counter view was supposedly put forward in the judgment of the

Supreme Court in Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, a judgment of this Court in

Province of Madras v. Vikrama Deo (56 L.W. 50) and a judgment of the Bombay High Court in Ebrahimbhai Vs. State of Maharashtra and

Others, . After considering these decisions, the learned judge, however, held:

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 or Chapter VI the enquiry shall be made and the appeal shall be heard 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. 63 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 be 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

The above judgment, however, came in appeal before a Division Bench of this Court in Executive Officer, Arulmigu Ranganathaswami

Devasthanam v. H.H. Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan & others (1989-1 L.W. 361) (hereinafter referred to also as

''Ahobhila Math''s'' case) and exactly opposite of the view expressed by the learned single judge was stated in these words:

The first question arising is whether the Commissioner, Hindu Religious and Charitable Endowments Department, is a public Officer. The learned

single judge after referring to certain authorities has held that the Commissioner, Hindu Religious and Charitable Endowments, is a Public Officer

and this finding is not questioned, and in fact, the counsel for both sides would submit that the Commissioner is a public officer and there is no

dispute about it. S. 12 of the Act clearly States that the Commissioner is a Government Servant. Therefore, we agree with the learned single judge

that the Commissioner is a Public Officer.(vide para 6).

Now, the suit is filed under S. 70 of the Hindu Religious and Charitable Endowments Act for cancellation or modification of the order passed by

the Commissioner in the appeal preferred to him under S. 69 of the Act. The question that arises is whether the suit against the Commissioner can

be said to be in respect of any act purporting to be done by the Commissioner. This question can be immediately answered in the affirmation on

the authority of the Supreme Court decision in Stale of Maharashtra and another v. Shri Chander Kant (AIR 1977 SC 146 - 90 L.W.88). In that

judgment the suit was filed against an order passed by the Registrar under S. 5 of the Public Trusts Act (Madhya Pradesh Public Trusts Act,

1951). In that Act the Registrar of the Public Trusts, on application by any person for registration of a trust as public trust, shall make an enquiry

under S. 5 of the Act and record his finding with reasons. Any person aggrieved by that finding can under S. 8 of the Act file a suit for cancellation

or modification of the order or the Registrar. The question arose whether in sued a suit notice under S. 80 to the Registrar was necessary. It was

held that the Registrar is a Public Officer, and his order is an act purporting to be done in discharge of his official duties and therefore notice under

S. 80, C.P.C. is necessary. The facts in that case are quite analogous to the facts in our case. In this case also the suit is to cancel or modify an

order passed by the Commissioner under S. 69 of the H.R. & C.E. Act. Therefore, there is no doubt that the order in question has been made by

the Commissioner in discharge of his official duties and therefore, it is an act purporting to be done in his official capacity and hence a notice under

S. 80, CP.C. is necessary for institution of the suit against him (vide para 7)

The Division Bench also rejected the argument that the legislature would not have intended notice under S. 80, C.P.C. while making a provision for

a statutory suit under S. 70 of the Act, saying as follows:-

One of the arguments advanced was that the order against which the suit is filed has been passed by the Commissioner himself and he knew that a

suit might be filed against him and no useful purpose would be served by giving him notice under S. 80, CP.C and therefore, in a case like this the

Legislature would not have intended notice under S. 80, CP.C. In view of the abovesaid Supreme Court decision we think that this question need

not be considered. However, there is another decision of the Supreme Court in Sawai Singhai Nirmal Chand Vs. Union of India, directly covering

this point. In that case the question was whether in a suit under 0.21, R. 63 of the CPC against the Government a notice under S. 80, CP.C was

necessary. It was argued that The suit is only a continuation of the attachment proceedings and therefore the Government already knew that a suit

ought be filed against it and therefore the purpose of giving a notice under S. 80, CP.C. viz., giving an opportunity to the Government to consider

whether the claims against it could be settled or not does not arise and therefore notice under S. 80, CP.C is unnecessary. This contention was

negatived by the Supreme Court stating that the contention is inconsistent with the plain, categorical and unambiguous words used in S. 80, C.P.C.

Therefore we hold that the first defendant-Commissioner shall be given notice under S. 80, C.P.C (vide para 7a).

Since a Division Bench of the Court found that a notice under S. 80, C.P.C, was necessary for the institution of the suit against the

Commissioner, the Courts which had the earlier Division Bench judgments in their mind found a dilemma. But nonetheless, a large number of suits

failed on the technicality that the Commissioner or the Deputy Commissioner was sued without serving a notice under S. 80, C.P.C The matter,

however, went in appeal before the Supreme Court in H.H. Srivan Satagopa Sri Vedanta Desika Yathindra Mahadeshikan, etc. v. The Executive

Officer, etc. (1991-2 L.W. 599) (hereinafter referred to as ''Sri Ahobhila Math''s case) and while setting aside the above judgment and remitting

the case to the trial court directing it to proceed with the suit on the merits without reference to the bar under S. 80, C.P.C, the Supreme Court

observed: -

The appellant''s contention that having regard to the nature of the suit and the capacity and the context in which public officers had been impleaded,

S. 80, C.P.C was not attracted, is eminently arguable. But, we think we should decline to examine that contention in this case. Having regard to the

particular facts and circumstances of this case ends of justice would be met by directing the trial court to proceed with the suit on the merits without

reference to the bar under S. 80. C.P.C (vide para 5)

Accordingly, this appeal is allowed. Judgment of the Division Bench set aside; the operative part of the order of the learned single judge restored

(without a pronouncement on the merits) ana the trial court directed to proceed and dispose of the suit on the basis of the findings to be recorded

on the other issues (vide para. 5.).

Thus the judgment of the Division Bench of this Court in Sri Ahobhila Math''s case (1989-1 L.W. 361) (supra) has been rendered non est and

the operative portion of the judgment of the learned single judge in ""Sri Ahobhila Math''s case (98 L.W. 303) has been restored. The effect,

however, of such opposite views in the judgments of the court can be seen in two judgments delivered by one and the same learned judge of this

Court, one in October, 1990, in Executive Officer, Sri Kallalagar Devasthanam etc. v. Tholappa Iyengar alias Alagar Iyengar & others (1992-2

L.W. 336) and the other in April, 1992 in the case of Munuswami Chetty v. Commissioner, H.R. & C.E. (Admn.), Madras (1992-1 L.W. 510.)

In the former case, viz., Sri Kallalagar Devasthanam''s case (1992-2 L.W.336) when it was brought to the notice of the learned judge that in an

earlier Division Bench in the case of Lakshmana Shah (84 L.W.828) (supra), there has been a Statement to the effect 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 Endowments Act

and the latter judgment of the Division Bench in Sri Ahobhila Math''s case (1989- 1-L.W.361) had made no consideration of the earlier judgment,

the learned judge said:

Though it may be said that this later Division Bench which decided the above said 1989-1 L.W. 361, did not expressly refer to the earlier Division

Bench judgment in the abovesaid (1971) II MLJ.495 = 84 L.W. 828, it should be noted that the decision in the abovesaid 1989-1 L.W. 361 is

only in appeal against the above referred to single judge decision reported in (1985) 1 M.L.J. 82 = 98 L.W. 303, which had referred to the above

referred to (1971) 2 M.L.J. 495 = 84 L. W. 828 (D.B.). So, though the decision reported in the above said 1989-1 L.w. 361 does not expressly

refer to the earlier Division Bench decision reported in the above referred to (1971) II M.L.J. 495 = 84 L.W. 828, it could be safely concluded

that the earlier Division Bench decision also was taken note of by the later Division Bench. (The decision in the above said 1989-1 L.W. 361

reversed the decision in the above said (1985) 1 M.L.J. 82 = 98 L.W. 303).

The learned judge gave yet another reason why he followed the later judgment and said that, where there is a conflict between two decisions

rendered by co-equal Benches, the Court should follow that judgment which appears to it to State the law more elaborately and accurately and

then said:

Applying the same reasoning even when there is conflict between the views of two Division Benches of this High Court, I think I should follow only

the above said 1989-1 L.W. 361 (not simply because the said decision is later in point of time).(vide para 13).

In the latter judgment in Munuswami Chetty''s case (1992-1 L.W. 510) (supra), the learned Judge has said:

Learned counsel for the first respondent Commissioner also argued that without notice under S. 80, Code of Civil Procedure, the present suit filed

is not maintainable and for this he relied on Executive Officer, Arulmigu Ranganathaswami Dcvasthanam v. H.H. Srivan Salagopa Sri Vedantha

Desika Yathlndra Mahadesigan & others (1989-1 L. W. 361 (DB) and also State of Maharashtra and Another Vs. Shri Chander Kant, . But the

judgment reported in 1989-1 L.W. 361 has been set aside by the Supreme Court in H.H. Srivan Satagopa Sri Vedantha Desika Yathlndra

Mahadesigan & others (1991-2 L.W. 599) wherein the Supreme Court has allowed the matter to be gone into on merits, despite the fact that the

abovesaid S. 80, CPC notice was not there. That apart, the learned counsel for the appellants relied on several earlier decisions of this Court like

Kandar v. Commissioner H.R. & C.E. (ILR (1980) 2 Mad 213), Commissioner H.R, & C.E. v. Kacherichamy (1981 II M.L.J 375) ""Lakshmana

Shah v. Commissioner H.R. & C.E. (84 L.W. 828) wherein it was held differently from the decision reported in Executive Officer, Arulmigu

Ranganathaswaml Devasthanam v. H.H. Srivan Satagopa Sri Vedantha Desika Yathlndra Mahadesigan & others (1989-1 L.W. 361) holding that

for the statutory suit under S.70 of the Act, notice under S. 80, CPC is not required. So far as State of Maharashtra v. S.K. Chander Kant \(AIR

1977 SC 148) is concerned that arises under M.P. Public Trusts Act, 1951 and there appears to be some differences between the relevant

provisions in the said Act and Hindu Religious and Charitable Endowments Act, 1959, and so I am unable to follow the said decision. All these

apart, the learned counsel for the appellant also pointed out that there could be waiver of notice required under S. 80, CPC and in that connection

has relied on Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), and Commissioner H.R. & C.E v. P. Kanniappa

Naicker(l989-2 L.W. 238 (DB). This claim of waiver is submitted on the ground that in the written Statement of the first

respondent/Commissioner, the abovesaid notice question was not at all raised. In view of the abovesaid decision, I hold that the suit is

maintainable.

Before we come to the judgment of the Supreme Court in the case of State of Maharashtra v. Chander Kant (AIR 1977 SC 148 = 90

L.W.88 (SC)) which appears to have substantially influenced the Division Bench in Sri Ahobhila Maths''s case (1989-1 L.W. 361) (DB) (supra),

we may refer to some authorities which appear to give us the idea how the Court should view the need of a notice under S. 80, CPC. In The

Collector of Bombay Vs. Kamalavahooji Maharaj, , a question arose whether notice under S. 80 was necessary in a suit under a State Act, i.e.,

Bombay City Land Revenue Act. A Division Bench of the Bombay Court said:

I think that, reading the Bombay City Land Revenue Act 2 of 1879. with the Civil Procedure Code, S. 80, does not apply to this particular suit.

The Bombay City Land Revenue Act provides in S. 8 that it shall be the duty of the Collector subject to the order of Government to fix and levy

the assessment for land revenue. Then S. 14 provides that the Collector''s decision upon any question arising out of the provisions of Ss.8 to 13

shall, unless superseded by the Revenue judge, be binding upon all persons whom it may concern and shall be acted upon accordingly, but the

Collector''s decision shall be stayed, on any such person giving security to the satisfaction of the Collector that he will within thirty days from the

date when such decision was made known to him institute a suit before the Revenue judge for the purpose of contesting the legality of the

Collector''s decision. Now at the date of that Act there was no provision similar to S. 80, Civil P.C.

The first section passed in the terms of S. 80, is contained in the Civil Procedure Code, 1877 and it seems to me very improbable that the

legislature when they passed the CPC of 1877 intended to provide that an undertaking given under S. 14, Bombay City Land Revenue Act to

bring a suit within thirty days should in every case be broken by requiring the plaintiff not to bring his suit until after the expiration of two months. It

is a well established principle resting on decided cases and recognized in S. 4, Civil P.C, itself that where there is a conflict between a special Act

and a general Act the provision of the Special Act prevails. When one comes to look at S. 17, Bombay City Land Revenue Act, it provides that

the Revenue judge shall decide all suits brought before him against the Collector or any person on his establishment on account of land revenue or

of acts done in their official capacities by the Collector or any of his assistants or other subordinates; so that section seems to draw a distinction

between suits brought on account of land revenue and suits brought on account of acts done in their official capacity by the Collector or any of his

assistants, or other subordinates and the words of S. 80, C.P.C, refer to the latter class of suits and not to the former. It seems to me that reading

the two Acts together the effect is that where you have a suit such as this which is brought pursuant to an undertaking given under S. 14 within

thirty days from the Collector''s decision, then that is not a suit which falls within S. 80; it is a suit on account of land revenue brought under the

special provisions of the special Act and, in my opinion, the general provisions of S. 80, do not apply to such a suit. That being so, I think we must

hear the appeal on the merits.

This is an authority that there could be two classes of suits, one brought on account of a statutory act and against orders under such statutory acts

by the officers and another for acts which they perform in their official capacity as a servant of the government. In the former, no notice under S.

80, C.PC is required for a suit in the Court; in the latter, unless a notice is given the suit is not maintainable. The view expressed by the learned

single judge in Sri Ahobhila Maths'' case (98 L.W. 303) (supra) which had been overruled by the Division Bench in Sri Ahobhila Maths''s

case(1989-l L.W. 361) thus has a useful companion and a strong precedent at that, in the expression of law that a suit on account of land revenue

brought under the special provision of the special Act, will not attract the general provision of S. 80, C.P.C.

It will be serving only academic interest if we go much behind in time and trace how in the earlier judgments of the Courts, the requirements of

S. 80, C.P.C notice have been appreciated. The case before the Privy Council in AIR 1921 6 (Privy Council) is one such judgment which has

been cited almost in every subsequent case for indicating that where there is a special procedure for a certain action in court that special procedure

has to be followed and not the general procedure that is contemplated under various provisions of the Code of Civil Procedure. This power of the

civil court is noticed in S. 4 of the CPC itself but if we venture to pick up a few cases on the subject, we will prefer a Bench decision of this Court

in the case of Govinda v. Uttukottai Co-op. Society ( AIR 1940 Mad.831 = 52L.W.131). This judgment is useful at least for the purpose of

understanding the meaning of the word ''public officer'' under S. 80, CP.C This Section of the Code has certain distinctive qualifying expressions

such as (1) against a public officer, and (2) in respect of any act purporting to be done by such Pubic officer in his official capacity. A public officer

is defined under S. 2(17) of the Code, and reading S. 80, C.P.C with S. 2(17) (h), the Division Bench in the above case (AIR 1940 Mad. 831)

has considered whether a liquidator appointed by the Registrar of Co- operative Societies in exercise of the powers conferred by the Act is a

public officer and the duty which he performs in that capacity is the official duty. The contention has been noted in that judgment in these words:

On all the points except one, the findings of the court below were in favour of the plaintiff. But the suits were dismissed, though without costs, on

the sole ground that no notice had been given as required by S. 80, C.P.C

It has been pointed out that even assuming that the defendant in the suit is the liquidator and not the society, it cannot be regarded as a public

officer within the meaning of the Civil Procedure Code. The Court noticed on facts that the liquidator appointed by the Registrar was himself a

Deputy Registrar of Co-operative Societies, and in that capacity was a Public Officer but observed:

But that does not mean that when he is actually acting in the capacity as a liquidator of a co-operative society he is an Officer in the pay of the

Crown or in the service of the Crown.

Proceeding further the Court observed as follows:

In the present case the liquidator is not appointed by the Government but by the Registrar of Co-operative Societies. Even otherwise, we find it

difficult to accept the general proposition that because the liquidator is given quasi-judicial powers, the duties which he performs must necessarily

be regarded as being public duties. Nor are we prepared to accept the proposition that every person who is appointed by the Government to

perform public duties is a public officer. It that view were accepted, it would follow that even a member or chairman of a local body appointed by

Government would be a public officer. The word ''''service"" must necessarily mean something more than being merely subject to the orders of

Government or to control by Government. We are unable to accept the view that a liquidator who is appointed by the Registrar of Cooperative

Societies to liquidate a private Cooperative Society is an officer in the service of the Government and this is the only ground on which it has been

sought on behalf of the respondent to support the finding of the Court below''.

The three judgments, of the Bombay Court in The Collector of Bombay Vs. Kamalavahooji Maharaj, of the Privy Council in AIR 1921 6

(Privy Council) ) and of Govinda v. Uttukkottai Co-operative Society (AIR 1940 Mad.831 = 52 L.W.131 (supra) give us a clear idea that a

mechanical test as to who the appointing authority is, or who holds the pay, should not be adopted for the purposes of deciding whether the person

against whom a suit is filed is a public officer for the purposes of S. 80, C.P.C; he will not become a judge merely because he is exercising quasi-

judicial powers; his duty may be public otherwise, but not for the purposes of S. 80, C.P.C. so as to give him the distinction of a public officer for

a notice under S. 80, C.P.C. A special statute and a special procedure for any action in Court shall be saved and escape the general procedural

law as in S. 80, C.P.C.

Before the Division Bench of Allahabad Court in Sultan Ahmad Vs. Gauhar Begam, a question had arisen whether a suit for compulsory

registration would attract S. 80, C.P.C. The view of the Court is expressed in these words:

The cause of action in the present suit was no doubt the action of a public officer in refusing to register the document, but that public officer was the

District Registrar and the suit was not brought against him and therefore, no notice under S. 80, was necessary. Indirectly no doubt, the act of the

appellant-defendant in executing the sale deed in favour of the

plaintiff gave rise to the proceedings in the Registration Department, but it is not the execution by defendant which is the cause of action under S.

77, Registration Act, but the refusal to register by the District Registrar. I may also point out that S. 777 Registration Act, prescribes a period of

30 days for the filing of a suit from such refusal and under S. 4 suos.(l). Civil P.C, ""nothing in the Code in the absence of any special provision to

the contrary shall affect any special law."" The Registration Act is a special law and I do not consider that S. 80, C.P.C., will apply in view of the

provision of 30 days limitation under S. 77, Registration Act, as that period, 30 days, is less than the two months provided by S.80, C.P.C. 1

would therefore dismiss the appeal with costs.

We have a substantial resemblance to the suit under S. 70 of the Endowments Act and S. 77 of the Registration Act as mentioned in the above

Allahabad Court judgment. A suit under S. 70 of the Endowments Act is not against the Commissioner but against the order of the Commissioner.

The special law under S. 70 of the Endowments ''Act has a controlling effect on the proceeding in the court also, for, otherwise a Court can have

the power to issue interim orders to stay the operation of the order of the Commissioner, or any other authority or otherwise to suspend the order

pending that but the statute says clearly that the Court snail have no power to stay the order of the Commissioner pending disposal of the suit.

There is yet another approach that Courts have taken in deciding whether S. 80, notice is necessary, the poser being whether the suit is in

continuation of a statutory proceeding or is an independent act to sue a certain government of government official for his official act. Indication that

a suit brought under a particular scheme of law is in continuation of such a proceeding and not an independent act is found in quite a few judgments

such as in the case of Hussain All Mirza v. State of Andhra Pradesh (AIR 1963 AP 164) and in the case of Venkataraju v. Suryanarayana (AIR

1943 Mad.248 = 55 L.W.820). The Privy Council judgment on the subject is available in Phul Kumari v. Ghanshyam Misra (ILR 35 Cal. 202).

The Bench decision of the Andhra Pradesh Court in Hussain All Mirza''s case (AIR 1963 AP 164) (supra) has staled on this as follows:-

In S.A. Rajamier Vs. M.R.M.A. Subramaniam Chettiar and Others, . the question arose whether a suit should fait for the reason that notice under

S. 4'''' (1) of the Madras Court of Wards Act was not given by the plaintiff therein before institulkma suit under O. 21, R. 63\ Civil Procedure

Code. Atp.483 (of (LR Mad): (at p. 1207 of AIR), Phil lips, J. after referring to S.49 (I) of (he Court of Wards Act, held that a suit under Order

21, Rule 63 CPC to set aside the order of the Court dismissing the claim petition must be deemed to be a continuation of those claim proceedings

and that, therefore, no fresh notice required by S. 49 (1) of the Court of Wards Act is necessary. The learned judge referred to the observations of

the Privy Council in Phulkumarl v. Ghanshyam Misra, ILR 35 Cal. 202. This decision was referred to and the same principle was applied by

another Division Bench of the Madras High Court in Chittoori Venkataraju and Others Vs. Chekka Suryanarayana Receiver to the estate of the

late Rao Bahadur Pydah Venkatachalapathi Garu, . The question there was whether a claim suit filed under Order 21, Rule 63 was in the nature of

an appeal against the order passed in the claim petition. In considering that question, the learned judges also referred to the decision of the Privy

Council in ILR. 35 Cal. 202 (PC) and held that a suit brought under Order 21 Rule 63 cannot be dissociated from the claim petition which gives

rise to it and is in fact an action in the nature of an appeal from the"" ""order passed on the claim petition.

These two decisions were referred to by Somayya, J., in Mahomed Yusuf v. Province of Madras, AIR 1943 Mad.341. The question that arose

for decision in that case was whether notice under S.80, CPC was necessary before instituting a suit under Order 21, Rule 63,Civil Procedure

Code to set aside an order passed on a claim petition. The decision in I.L R 52 Mad.465: (AIR 1928 Mad. 1201). was referred to by the learned

Judge, who pointed out that 5.49 (1) of the Court of Wards Act is quite similar to S. 80, C.P.C and held, that on a parity of reasoning, a notice

under S. 80, C.P.C. need not be given before a suit under Order 21, Rule 63 could be filed

Specifically, however, speaking on the rule that should be applied in a suit under S. 6 of the Hyderabad Government Demands Act, 1308 F.

the Andhra Pradesh Court observed as follows:

But as we have pointed out, the proceedings under the Government Demands Act are very similar to the proceedings in a Civil Court under Order

21 Rule 63 Civil Procedure Code. No distinction on principle could be made between the present case and the case in ILR 52 Mad. 465: (AIR

1928 Mad. 1201) 1942-2 M.L.J. 791: (AIR 1943 Mad. 248) and AIR 1943 Mad. 341. The principles laid down in ILR52 Mad. 465: S.A.

Rajamier Vs. M.R.M.A. Subramaniam Chettiar and Others, and the other case referred above is applicable on a parity of reasoning, having regard

to the fact that the proceedings instituted by the Taluqdar and the enquiry made by him and the order passed by him under S. 5 are really in the

nature of proceedings in Civil Court. This principle was first laid down in the decision in I.L.R 52 Mad. 465; ( AIR 1928 Mad. 1201) and it does

not appear to have been challenged in any subsequent case. Therefore, we would follow it. Though prima facte on the language of S. 80, CPC it

appears that the section applies to all suits without any exception, still in view of the principle laid down in the decisions referred to above, we hold

that notice under S. 80, CPC is not necessary in the present case, as the suit in the present case is only a continuation of the proceedings initiated

by the Taluqdar and is in the nature of an appeal against the memorandum issued by the Taluqdar or the order made by him.

A contra view, however, has been discussed in the judgment in these words:

But Mr. Sarma appearing for the learned Government Pleader very strongly relied upon the language of S. 80 CPC and submitted that it applies to

all suits filed in a civil Court whether as prescribed by any other Act or under the general law under S. 9 Civil Procedure Code. He urged that the

view taken by the High Court of Madras in the cases above referred to is wrong and that they require reconsideration, in the alternative, he

contended that even assuming that the principle laid down in those decisions is correct, they do not apply to present case because in the present

case, the proceedings initiated by the Taluqdar are not by a Civil Court but by a revenue officer and that, therefore, the suit which is filed in the civil

court cannot be held to be a continuation of the proceeding initiated by the Revenue Department of the Government.

In support of this argument, he relied upon the decision of Varadachariar, J. in Duraislngham v. Muthayya Chettiar, AIR 1930 Mad. 583. There

the question arose under S. 49 of the Madras Court of Wards Act. That suit was filed under the Survey and Boundaries Act and it was filed

without giving notice prescribed by S. 49 of Madras court of Wards Act. The learned Judge no doubt distinguished the decision in ILR 52 Mad.

465: (AIR 1928 Mad. 1201). He held that a suit filed under S. 14 of the Survey and Boundaries Act stands on a different footing from acclaim

suit, at least for one reason, viz., whereas in a claim suit the prior proceedings will ordinarily be in a civil Court, the survey proceeding cannot

reasonably be regarded as proceedings in a civil Court. Similar is the view taken by Happell, J. in Madras province v. Maharaja of Jaipur, AIR

1943 Mad. 284. In that case also suits were filed under S. 14 of the Madras Survey & Boundaries Act without giving notice as required by S. 80,

Civil Procedure Code. The teamed judge held that the suits were not maintainable for want of notice under S. 80, Civil Procedure Code. He

referred to the decision of Varadachariar, J. in AIR 1936 Mad. 583 as well as the decision in ILR 52 Mad. 465; . (AIR 1928 Mad. 1201).

e Calcutta High Court in Commissioner of Wakfs Vs. Shahebzada Mohammed Zahangir Shah and Others, ) has also stated the law not in any

way different from what has been noticed above by us in the judgments of the Bombay Court, and Andhra Pradesh Court. Although obiter in

certain respects, in a suit for declaration that remarks in cadastral survey were wrong and that the order of Commissioner of Wakfs enrolling the

property as wakf was illegal, the Court considered whether the suit fell within S. 80, C.P.C. or not. The Calcutta Court in the judgment has stated

as follows:

We are not sure if the Commissioner of Wakfs is not in the service of the Government. Ss.16 to 22, Bengal Wakf Act, 1934, deal with his

appointment, salary and legal position. His duty and functions are prescribed by the provisions made in Chap. 3 of the Act. We do not see why he

cannot be said to be in the service of the Government. According to the definitions given in the General Causes Act ''Government'' or ''the

Government'' includes the ''local Government'' (now, Provincial Government) as well as the Central Government. Again, we are not sure why he

cannot be said to be performing a public duty within the meaning of the above definition. The expression ''public duty refers to duty concerning the

affairs or service of the public. The word ''public'' in our opinion may include any class of the public ""or any community. At least in one statute (viz.,

the Penal Code, vide S. 12) the word is expressly used in this sense. Public wakfs are public, religious or charitable endowments, and one who

functions in relation to such public endowments in general may be said to perform a public duty. The question, however, does not fall to be

decided in the present case, as in our opinion, the present suit is not of the type contemplated by S. 80, Civil P.C.

The suit is for a declaration that certain entries in the Cadastral Survey record are wrong. The act in respect of which this relief is claimed can in no

way be said to be the act of the Commissioner of Wakfs. So far as this relief is concerned, certainly, no notice under S. 80, Civil P.C, need be

given to the Commissioner of Wakfs. The Commissioner maybe entitled to a notice of such a suit under S. 70, Bengal Wakf Act, 1934, and may

himself intervene in the suit under S. 71 of the Act or may be made a party defendant by the plaintiff quite unnecessarily. In none of these cases a

notice under S. 80, Civil P.C is needed. By the addition of the Commissioner of Wakfs as a party defendant the suit itself does not change its

character in this respect so as to bring in the question of notice under S. 80, Civil PC.

The Commissioner contends that the addition of the prayer 2 (a) converted the suit into one in respect of an act purporting to be done by him in his

official capacity. One short answer to this contention is that this relief has not been granted, and so far as this relief is concerned the matter is no

longer before us. Further, even in a suit for this relief the Commissioner is neither a necessary nor a proper party, though S. 80, Bengal Wakf Act

may make it incumbent upon the Court in such a suit to give notice of this suit to the Commissioner leaving it to him to see if he should come in

under S. 71 of the Act. Obviously no question of notice under S. 80, Civil P.C, would arise in such a case. S. 46A, Bengal Wakf Act, 1934, was

inserted by S. 3, Bengal. Wakf (Amendment) Act, 1935 (Bengal Act 4 of 1936). The Section stands thus:

Any question whether a particular property if wakf property or not.... shall be decided by the Commissioner whose decision, unless revoked or

modified by a competent Court, shall be final"".

This Act also amended sub. cl (a) of cl. (1) of S. 27 by inserting the words ''and determining'' after the word ''investigating in it. After this

amendment cl. 1 (a) of S. 27 stands thus:

the functions of the Commissioner shall include investigating and determining the nature and extent of wakf and wakf property. ''It will be pertinent

to notice the provisions of S. 92 of the Act in this connection. The Section says:

No suit shall be brought in any civil or revenue Court to set aside or modify any order made under this Act...."" It would thus appear that ""a

decision"" of the Commissioner and ''an order made under the Act'' stand on different footings. When any wakf is enrolled by the Commissioner this

enrollment may imply two things, namely, (1) a decision that the property is wakf and (2) an order of enrollment. No suit lies for setting aside the

order. But the decision is always subject to revocation or modification by a competent Court. So far as this decision is concerned, the

Commissioner discharges a quasi judicial function and in a suit for revoking or modifying this decision he is not at all a necessary party. It should

not be a suit against this Commissioner at all in his capacity as the officer giving the decision. But even in such a suit the Commissioner may be

entitled to a notice under S. 70 of the Act and may intervene under S. 71 of the Act. When he comes in as intervener the suit does not become a

suit against him in respect of any act purporting to be done by him in his official capacity. As has been pointed out above, prayer No. 2 (a) in the

present case was ""for a declaration that the decision of the Commissioner of Wakfs, Bengal, that the property in suit is wakf, is illegal, wrong and

ultra vires.''""'' Even for this relief the Commissioner as the deciding officer was not a necessary party. Rather, it would be improper to add him as a

party defendant in his capacity of the officer giving the decision. But, at the same time, he as Commissioner of Wakfs was entitled to a notice of the

suit under S. 70 of the Act and was entitled to intervene under S. 71 of the Act. In this case the procedure adopted in adding him as a parry

defendant was irregular. But as the Commissioner contested the claim on its merits we do not see why we should not treat him as an intervener

under S. 71 of the Act. The irregularity in the procedure adopted has not in the least affected the merits of the case or the jurisdiction of the Court.

19 It has always been a judicial consensus and so affirmed by the Supreme Court in more than one judgment that the object of S. 80 C.P.C. is

manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he

may consider the position and decide for itself/himself whether the claim of the plaintiff could be accepted or resisted. Before however, we go to

such judgments of the Supreme Court, we may see how the neighboring Andhra Pradesh Court has viewed the requirement of notice under its

special statute, similar to ours, in the case of Chunduru Chenchuramaiah Sett Vs. Deputy Commissioner, Hindu Religious and Charitable

Endowments, Andhra Pradesh Kurnool, . Although delivered by a learned single judge, no judgment to the contrary has been brought to our

notice, on a provision similar to one under S. 70 of the Endowments Act. The Andhra Pradesh Court has said:

I find sufficient force in the contention of the learned counsel for the appellant. S. 80, C.P.C. in my opinion also, does not apply to a suit under S.

62 of the Hindu Religious and Charitable Endowments Act. Orders passed by the Deputy Commissioner under S. 68 of the Act and by the

Commissioner under S.61 of the Act are judicial orders and the right of suit is provided under S. 62 to set aside the judicial orders passed by the

Commissioner. The Commissioner is not sued in his capacity as a public officer but only as a statutory body. I cannot therefore understand how in

such a case a notice under S. 80, C.P.C. is necessary. The cases relied upon by the lower court are cases which do not apply to the facts of the

case.

The learned Judge has referred to the precedents in the case of Narayana v. Commissioner, H.R. & C.E. (I.L.R. 1962 A.P. 865) for the said

view.

20 The judgment of the Supreme Court in the case of The State of Madras Vs. C.P. Agencies and Another, has said about the object of S. 80,

C.P.C. as above, and said further that ''Section 80 is express, explicit and mandatory and admits of no implications or exceptions. It peremptorily

requires that no suit shall be filed against the Government or a public officer in respect of anything done in his official capacity until after the expiry

of two months from the service of a notice in the manner therein prescribed stating the cause of action, the name, description and place of

residence of the plaintiff and the relief''s claimed have been sufficiently stated in the notice.'' In this judgment it is also observed that the terms of the

notice should not be scrutinized in a pedantic manner or in a manner completely divorced from common sense.

decision in State of Andhra Pradesh Vs. Gundugola Venkata Suryanarayana Garu, has also reiterated the same view.

State of Punjab Vs. Geeta Iron and Brass Works Ltd., also this aspect of the law is curtly stated that a notice under Sec. 80 C.P.C. is

intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted.

e is no need, however, to multiply the number of decisions on this aspect of the law except to quote how'' the Supreme Court has intended the

Courts in India to permit the use of S. 80, C.P.C. In Raghunath Das Vs. Union of India (UOI) and Another, the Supreme Court has reiterated the

legislative intention behind the Section that public money and time should not be wasted on unnecessary litigation and the Government and the

public officer should be given a reasonable opportunity to examine the claim made against them lest they should be drawn in avoidable litigations

and added:

The purpose of law is advancement of justice. The provisions in S. 80, are not intended to be used as booby traps against ignorant and illiterate

persons.

In this judgment the Supreme Court has reiterated its earlier observations in the case of Dhian Singh Sobha Singh v. Union of India [A.I.R. 1958

S.Q 274] that while the terms of S. 80, C.P.C. must be strictly complied with that does not mean that the terms of the Section should be construed

in a pedantic manner or in a manner completely divorced from common sense.

algamated Electricity Co. v. Ajmer Municipality [A.I.R. 1969 S.C. 227] the Supreme Court has once again made observations which indicate

that in any suit against a public officer before S. 80, C.P.C. is invoked, it must be shown that it is a suit in respect of an ''act'' purporting to be done

by him in his official capacity. In this judgment the Supreme Court has said as follows:

So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by S. 80, Civil Procedure

Code. But when we came to suits against public Officers, S.80, CPC applies only to suits in respect of any ''act'' purporting to be done by a public

officer and that in his official capacity. Hence before. S. 80 can be relied on in any suit against a public officer; it must be shown that it is a suit in

respect of an ''act'' purporting to be done by him in his official capacity. In view of the provisions of the General Causes Act, the expression ''act''

also includes illegal omissions. Therefore, if the suit does not relate to any ''act'' or ''illegal omission'' purporting to be done by a public officer in his

official capacity, Sec. 80 will not have any application.

The Court was dealing with Sec. 233 of the Ajmer Merwara Municipalities Regulation, which was a provision similar to Sec. 80, C.P.C. Code. In

this Judgment, the Supreme Court also said:

It is true that in Bbageband Dagdnsa Gujarathi v. Secretary or State, 54 Ind. App. 338 [A.I.R. 1927 P.C 176], the Privy Council laid down that

S. 80 should be strictly complied with and is applicable to all forms of action and all kinds of relief''s claimed against the Government. But here in

this case we are not concerned with a claim against the Government. Therefore that decision has no application to the facts of the present case.

The case which is relevant for our present purpose is Revati Mohan Das v. Jatindra Mohan Ghosh 61 Ind. App. 171 [A.I.R. 1934 P.C. 96.

Therein a manager of an estate appointed under S.95 of the Bengal Teancy Act, 1885 executed a mortgage in favour of the predecessor of the

plaintiff therein after obtaining the sanction of the local court. The successor of that manager failed to discharge the mortgage debt. Consequently

the plaintiff brought a suit against him for obtaining a mortgage decree. That suit was resisted on the ground that the plaintiff had failed to give the

notice prescribed by Sec. 80, CPC before instituting the suit. That plea succeeded in the High Court. The Judicial Committee of the Privy Council

reversed the decree of the High Court holding that the failure on the part of the respondent to discharge the mortgage cannot be considered as an

''act'' within the meaning of Sec. 80, Civil Procedure Code. In the course of the judgment Sir George Lowndes speaking for the Board observed

thus:

On the alternative contention their Lordships are unable to hold that non-payment by respondent 1 is an ''act purporting to be done by the manager

''in his official capacity. Under the general conditions, in 5.3, General Causes Act, 1897 an ''act might include an illegal omission in the present

case. It is also difficult to see how mere omission to pay either interest of principal could be an act purporting to be done by the manager in his

official capacity.''

Quoting further from the judgment of Sir George Lowneds:

The mortgage imposed no personal liability upon the manager, but merely provided that if payment was not made the mortgagee would be entitled

to realise his dues by sale through the Court and this was all that the appellant sought by his suit

The appellant made no claim against respondent 1 personally. He was there only as representing the estate of which the sale was sought. In their

Lordship''s opinion, such a suit is not within the ambit of Sec. 80 and no notice of suit was required

The Supreme Court observed:

It is possible to read this passage as merely setting out the facts of that particular case and the equitable considerations arising therefrom and not as

the ratio of the decision. Even if we consider that passage as one of the reasons given in support of the decision, the strength of the earlier ratio is

not weakened. The interpretation placed by us on that decision is the same that placed by the Calcutta High Court in Devendra Natn Roy v.

Official Receiver. [AIR. 1938 Cal. 1911. Mr. Sbarma reads to us several decisions of the various High Courts wherein it has been laid down that

a suit brought in respect of breach of contract by a public official is an ''act'' within the meaning of S.80, Civil Procedure Code. Similarly, illegal

omissions have been held to be ''acts'' under that section. In some of the decisions it was held that the second part of Sec 80, CPC applies only to

actions on torts committed by public officials, in the discharge of their public functions. There is conflict of judicial opinion on that point. For our

present purpose it is not necessary to resolve that conflict. Suffice it to say that in the present case, the plaint does not complain of any ''act'' or

even an illegal omission on the part of the defendant. Hence we agree with Mr. Purshottam Tricumdas that no notice under Sec. 233 of the Ajmer

Merwara Municipalities Regulation was necessary before instituting the suit, in that view, it is not necessary to consider whether the notice relied on

by the plaintiff meets the requirements of the law.

25-A. In the case of Ghanshyam Dass v. Dominion of India [A.I.R. 1984 S.C. 1004 = 97 L.W.101 (SC)(SN)],the question involved was

whether a notice issued before the amendment in Sec. 80 C.P.C. enured to the benefit of the plaintiff who instituted a suit against the Government,

after the demise of his father who had issued the notice. The Supreme Court has observed:

Section 80 of the Code is but a part of the Procedure Code, passed to provide the regulations and the machinery, by means of which the Courts

may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone, and must be interpreted in a

manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh v. Election Tribunal, Kota [(1955) 2 S.C.R. 1

= A.I.R.1955 S.C 425] Vivian Bose, J. in his illuminating language dealing with the CPC said:

It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing

designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore

be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to

frustrate it.

Our laws of procedure are based on the principle that ''as far as possible, no proceeding in a Court of law should be allowed to be defeated on

mere technicalities''. Here, all the requirements of Sec. 80 of the Code were fulfilled. Before the suit was brought the Dominion of India received a

notice of claim from Scth Lachmandass. The whole object of serving a notice under Sec. 80 is to give the government sufficient warning of the case

which is going to be instituted against it was that the government, if it so wished, settle the claim without litigation or afford restitution without

recourse to a court of law. That requirement of Sec. 80 was clearly fulfilled in the facts and circumstances of the present case.

It is a matter of common experience that in a large majority of cases the government or the public officer concerned makes no use of the

opportunity afforded by the section. In most cases the notice given under Sec. 80 remains unanswered till the expiration of two months provided

by the section. It is also clear that in a large number of cases, as here, the government or the public officer utilised the section merely to raise

technical defenses contending either that no notice had been given or that the notice actually given did not comply with the requirements of the

section. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiff, the

legal heirs of Seth Lachmandass, on the ground that no fresh notice had been given by them. This was obviously a technical plea calculated to

defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plaintiffs have been deprived

of their legitimate dues for the last 35 years.

25-B. Division Bench of the Calcutta High Court in Anil Pahar v. Subhas Mahato (AIR 1985 Cal. 169) faced a contention that a suit challenging a

panchayat election was not maintainable unless a notice under S. 80, C.P.C. was served. The Court said on this as follows:

It is not disputed that the Civil P.C. is applicable to suit coming within its purview and it would not be applicable to suits or proceedings under

special statutes unless the said statute adopts the Code and makes it applicable thereto and to the extent it is so adopted. Here in the present case

S. 264 of the said Act confers right on specified persons to dispute the declared results of an election and prescribes forum and the procedure for

the adjudication of such a dispute

It would appear here from the provisions of the statute and the rules, that the legislature having itself prescribed the procedure for filing and/or

institution of election petition had adopted the Code only for the purpose of trial of such cases. R. 75 as above has not adopted the whole Code. It

had adopted such of the provisions thereof as are applicable at the stage of trial of suits but subject again to other provisions of the Act and the

Rules. The Act and the Rules had prescribed their own procedure as to how such an election petition is to be filed and instituted and has also

provided that once such a petition has been filed fulfilling the requirements prescribed there for, the Tribunal shall forthwith proceed with the

enquiry, i.e., with the trial of such a case Hence, in our view, the legislature had not adopted S.80, of the Code and had not made it application to

election petitions under S. 204 of the Act.

The Calcutta Court kepi in its mind that S. 80, of the CPC prescribes a rule of procedure pre-trial and not a trial procedure (See State of

Seriakella v. Union of India AIR 1951 SC 253).

re are judgments of different Courts, on facts of each case and the laws which were sought to be enforced, taking either the view that the suit is

not maintainable without a notice or that a notice is not necessary. But the judgment of the Supreme Court in the case of State of Maharashtra v.

Chander Kant (AIR 1977 SC 148 = 90. L.W.88 (SC)) which we have already noticed, has influenced the Division Bench delivering judgment in

Ahobhila Math''s case (1989-1 L.W. 361) (supra), which reversed the judgment of the Bombay High Court in Chander Kant v. State of

Maharashtra (AIR 1970 Bom. 301), is one which has taken notice of some of the provisions of the Madhya Pradesh Public Trusts Act and then

pronounced that the suit without notice to the public officer concerned was not maintainable. Such provisions of the Act are referred to in the

judgment of the Supreme Court in these words:

The following provisions of the Act are important to be noticed. The Collector shall be the Registrar of Public Trusts in respect of every public

trust, the principal office or the principal place of business of which is situate in his district. Within three months from the date on which S. 4 comes

into force in any area or from the date on which a public trust is created, the working trustee of every public trust shall apply to the Registrar having

jurisdiction for the registration of the public trust. On receipt of an application the Registrar shall make an inquiry as contemplated in S. 5 of the

Act. The Registrar then shall record his finding with reasons. The Registrar shall cause entries to be made in the register. Any person aggrieved by

any finding of the Registrar may within six months from the date of the publication of the notice institute a suit in a civil court to have such finding set

aside or modified. In every such suit, the civil court shall give notice to the State Government through the Registrar, and the State Government, if it

so desires, shall be made a party to the suit. All monies belonging to a public trust shall be kept in a scheduled bank. No sale, mortgage, exchange

or gift of any immovable property and no lease for a period exceeding seven years in the case of agricultural land or for a period exceeding three

years in the case of non -agricultural land or a building belonging to a public trust, shall valid without the previous sanction of the Registrar. The

Budget of every public trust where the gross annual income of which exceeds one thousand rupees shall be submitted to the Registrar. The

Registrar shall have powers to enter on and inspector cause to be entered on and inspected, any property belonging to a public trust, or to call for

any return, Statement, account or report as contemplated in S. 22 of the Act. If the Registrar finds any defect in the administration of the public

trust the registrar may require the working trust as to submit an explanation. The Registrar has power as contemplated in S. 26 of the Act to direct

the trustee to apply to court for directions in certain cases. If the trustee fails to do so, the Registrar shall himself make an application. The State

Government may make rules for the purpose mentioned in the Act.

Those were the provisions under which the Registrar passed some order and the respondent filed a suit against the State claiming that the order in

the revenue case declaring Gajanan Maharaj Sansthan of mangrul-Dastagir to be a public trust be set aside. The Supreme Court has said in this

judgment:

These provisions indicate that the Registrar is a public Officer. The words ""act purporting to be done in official capacity have been construed to

apply to nonfeasance as well as to misfeasance. The word ""act"" extends to illegal omissions.

No distinction can be made between acts done illegally and in bad froth and acts done bona fide in official capacity.... S.80, of the CPC therefore

is attracted when any suit is filed against a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity.

The language of S.80, of the CPC is that a notice is to be given against not only the Government but also against the Public Officer in respect of

any act purporting to be done in his official capacity. The Registrar is a Publte Officer, The order-is-Tract purporting to be done in his official

capacity.

In the present case, the suit is to set aside the order made by a Public Officer in respect of an act done in the discharge of his official duties.

Therefore, notice under S.80, of the CPC was required.

26 The Division Bench in Shohola Math''s case (1989-1 L.W. 361) (supra) has to take notice of the fact that the Collector of the District, the

Registrar and the State Government were reared to discharge certain statutory duties under le MP. Public Trusts Act, the Registrar, according to

the Supreme Court, was a Public Officer and in that case also, it was the order by a Public Officer which was under challenge. One of the

provisions of the said Act also said that any persons aggrieved by any findings of the Registrar and within six months from the date of the

publication of the notice, institute a suit in a civil Court for such findings set aside or modified. Impressed by the similarity in the provisions of the

M.P. Public Trusts Act and the provisions leading to S. 70 of this State''s Endowments Act, the Division Bench of this Court in Ahobhila Math''s

case (1989-1 L.W. 361) said:.

The facts in that case arc quite analogous to the facts in our case. In this case* also the suit is to cancel or modify an order passed by the

Commissioner under S. 69 of the H.R. & CE~ Act. Therefore, there is no doubt that the order in question has been made by the Commissioner in

discharge of his official detested therefore, it is an act purporting to be done in his official capacity and hence a notice under S.80, CP.C is

necessary for institution of the suit against him.

The Supreme Court has, we have already noticed, not accepted this reasoning and set aside this judgment by making a summary order saying:

The appellant''s contention that having regard to the nature of the suit and the capacity and the context in which public officers had been imp

leaded, S.80, CP.C was not attracted, is eminently arguable.

ill be merely reiteration of what is stated in Art. 141 of the Constitution of India that any Statement of law in a judgment of the Supreme Court

is ending as the law other land, and reiteration of another well settled principle that judgment is a precedent only for what it specifically decides and

it is the ratio decided which is the law and not any observations otherwise.

trations, analogies, etc. are sometimes a good guidance but on occasions they do cause distractions and deflections. The case of the State of

Maharashtra v. Chander Kant (AIR 1977 = 90 L.W.88 (SC) SC 148) (supra), objecting to the suit to set aside the order of the Registrar

declaring a certain trust as a public trust that the suit was not maintainable without a notice under S.80, CP.C. to the Registrar, who had passed the

order in his official capacity is not, and cannot be, on the same footing as the objection in a suit under S. 70 of the Endowments Act, for, the State

or the Commissioner of the Religious Endowments does not have any lis with the plaintiff. The capacity in which the Commissioner makes orders

under S.69 of the Endowments Act, may at a glance appear to be comparable with the power of the Registrar under the M.P. Public Trusts Act,

but the determinations by him are on such subjects only as are enumerated for adjudication by the Deputy Commissioner and the Commissioner

respectively. The words used by the Supreme Court in its judgment in Ahobhila Math''s case (1991-2 L.W. 599) (supra), ""having regard to the

nature of the suit and the capacity and the context in which public officers had been impleaded"" assumes significance because, as we have already

noticed, not all acts of public officers are acts done in their official capacity and not all acts done by public officers in their official capacity attract

for action in a court a pre-trial notice under S.80, CP.C. S.80, CP.C has used the words ''public officer. S. 2 (17) of the Code had defined

''public officer'' to include every judge; every member of an All-India Service; every Commissioner or gazette officer in the military, naval or air

forces of the Union while serving under the Government,....etc., as well as every officer of a Court of Justice whose duty it is, as such officer, to

investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or

to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially

authorised by a Court of Justice to perform any of such duties. Since suits are brought in the Courts of law and before judges it is obvious that they

are not to be sued except for acts done by them in their administrative capacity for which perhaps a notice under S.80, CP.C. may be required.

for instance, a suit for setting aside an ex parte decree. Why the judge who decided the earlier suit is not imp leaded as a party? and why no

notice is given to him before instituting such a suit? because, he acts in the judicial capacity and his capacity as such takes him out of any lis with the

plaintiff who seeks setting aside the decree. The Deputy Commissioner or the Commissioner, who are empowered under the Endowments Act to

hold enquiry or to settle claims in accordance with the provisions in Chapter V and other parts of the Act, are evidently Officers, who are assigned

a work of judicial nature and since they are assigned a work of judicial nature the Act has contemplated appointment of only such persons as

Commissioner, the first among them being by transfer from among the members of the Madras State Higher Judicial Service or of the Madras

Stale Judicial Service or of any other service followed by promotion from Deputy Commissioners or by direct recruitment. If rule of elude generic

is to apply, and in our opinion, it must, any other service must mean a service in which a person acquired, if not more, not less judicial acumen than

a member of the Madras State Higher Judicial Service or of the Madras State Judicial Service.,

Chapter V of the Endowments Act has envisaged determination of disputes 00000and matters by a process of inquiry or order by either the

Deputy Commissioner or the Commissioner, and the Commissioner under S. 69 of the Endowments Act has been given the appellate power to

modify or cancel the orders passed by the Deputy Commissioner. S. 70 of the Endowments Act, as we have already seen, has envisaged

institution of a suit in the court against such order passed by the Commissioner and given to the court the power to modify or cancel such order

The Court, however, has not been given the power to stay the order of the Commissioner pending disposal of the suit. This special jurisdiction or

power conferred upon the court under S. 70 of the Endowments Act is not subject to S. 9 of the Code of Civil Procedure, 1908 for, the

Endowments Act has specifically barred suits in a Court of law or appeals under S. 96 of the Code of Civil Procedure, 1908. Sub-section (2) of

S. 70, however, has provided for appeal within 90 days from the date of decree to the High Court by any person aggrieved by the decree of the

court in the suit under Sub-S. (1) of S. 70 of the Endowments Act. The provisions in S. 111 of the Endowments Act have provided that no order,

decision, proceeding or action taken, etc. under the Endowments Act by the Commissioner or a Deputy Commissioner or an Assistant

Commissioner shall be liable to be questioned in any Court of law. Procedure to be followed in inquiries is indicated in S. 110 of the Endowments

Act, which says:

(1) Where a Commissioner or a Deputy Commissioner makes an inquiry or hears an appeal under Chapter V or Chapter VI, the inquiry shall be

made and the appeal shall be heard, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908

(Central Act V of 1908) to the trial of suits or the hearing of appeals, as the case may be.

(2)

The provisions of the Indian Evidence Act, 1872 (Central Act I of 1872) and the Indian Oaths Act, 1873 (Central Act X of 1873), shall apply to

such inquiries and appeals.

(3)

The Commissioner or a Deputy Commissioner holding such an inquiry or hearing such an appeal shall be deemed to be a person acting judicially

within the meaning of the Judicial Officers Protection Act, 1850 (Central Act XVIII of 1850).

However, the procedure in the suit in the court under S. 70 (1) of the Endowments Act or the appeal under S. 70 (2) of the Endowments Act in

the High Court has not been indicated in the Endowments Act except that the power of the court to stay the order of the Commissioner pending

disposal of the suit has been specifically denied. This only means that the Endowments Act has recognised suit proceedings in the court as the

procedure for the purposes of the suit under S. 70 (1) of the Endowments Act and the procedure that the High Courts adopt in appeals arising out

of any suit in a court subordinate to it. The special procedure as to the power of the courts curtailed to the extent that it cannot stay the order of the

Commissioner is saved under S. 4 of the Code of Civil Procedure, 1908. Thus, in this scheme of the law a suit for the limited purpose of modifying

or canceling the order of the Commissioner and the appeal before the High Court against the decree of the court in a suit of this nature is a

continuation and culmination of the proceeding to inquire into and to decide the disputes and matters that are specifically mentioned in Chapter V

of the Endowments Act. The Deputy Commissioner and the Commissioner, while exercising the original and the appellate powers, have to follow

the procedures applicable under the Code of Civil Procedure, 1908 to the trials of suits or the hearings of the appeals, as the case may be, take

evidence in accordance with the provisions of the Indian Evidence Act, 1872 and while holding such inquiry or hearing such appeal they are

deemed to be acting judicially within the meaning of the Judicial Officers Protection Act, 1850. The court in course of the trial of the suit under S.

70 (1) of the Endowments Act is, of course, the court and is accordingly required to follow the procedure applicable under the Code of Civil

Procedure, 1908 to a trial in a suit and the High Court hearing the appeal is the High Court with its powers preserved under Art. 225 of the

Constitution of India and the Code of Civil Procedure, 1908.

31 On the basis of the judicial consensus thus we are in a position to say that a notice under S.80, of the Code of Civil Procedure, 1908 is

unnecessary if, having regard to the nature of the suit and the capacity and the context in which public officers have been impleaded, it is found that

no purpose can be served by notice to such officers, the fact that the officer concerned has acted judicially or quasi-judicially may be one such fact

which will lead to the conclusion that the purpose of the suit is not to sue the officer for any such act done by him in his official capacity, which shall

attract S. 80, of the Code of Civil Procedure, 1908. The fact that a special procedure is created and a special jurisdiction is conferred for a certain

type of adjudication upon a public officer and in that official capacity he is required to decide a dispute or a matter and a suit is provided as a

remedy under the special Act for the cancellation or modification of the order of such public officer shall also be a fact showing that such act done

by such public officer in his official capacity will not attract S. 80, of the Code of Civil Procedure, 1908. As the Supreme Court has said, the

provisions in S. 80, of the Code of Civil Procedure, 1908 are not intended to be used as booby traps against the ignorant illiterate persons, but are

intended to advance justice by affording on the one hand a person intending to sue the Government or a public officer in respect of any act

purporting to be done by such public officer in his official capacity opportunity to demand from the Government or such public officer redressed of

his grievance within two months next after notice, and on the other hand to provide to the Government or the officer concerned opportunity to

consider whether the Government or the officer should contest the claim and/or to grant the relief as asked for and thus avoid unnecessary

litigation. The scheme of the suit under S. 70 of the Endowments Act, in particular, leaves no option with the Commissioner to rescind, review or

recall his order. Once this is the position, it is unimaginable that a notice is necessary to afford to the Commissioner opportunity to consider the

redressed of the grievances of the person who sought relief by way of a suit under S. 70 (1) of the Endowments Act. In the case of a public

officer, in particular, if there is no claim made against him in person, it is obvious that he is not sued as such for any relief against him. In fact, one

may be inclined to think that the officer is not a necessary party and he need not be sued and he has not been sued in his personal capacity at all in

such a case, since however, the Endowments Act has on the one hand vested these officers with the power to adjudicate in certain disputes and

matters, it has also made them administratively responsible for the affairs of the religious Endowments, it is only proper that they are impleaded as a

party. As held in the case of Amalgamated Electricity Company v. Ajmer Municipality (AIR 1969 SC 227) stated supra, such act of the Deputy

Commissioner or the Commissioner, as the case may be, should not be termed as an act purported to be done by such public officers for the

purposes of S. 80, notice.

32 Viewed in this background, the judgments of this Court in the case of Lakshmana Shah v. Commissioner, H.R. & C.E. (84 L.W. 828) and the

case of Santhanagopala Chettiar v. Seetharama Chettiar (87 L.W. 182) give the correct position that in a suit under S. 70 (1) of the Endowments

Act, no notice under S. 80, of the Code of Civil Procedure, 1908 is necessary to either the Commissioner or the Deputy Commissioners, who are

not sued in their individual capacity but are sued as authorities who exercised their statutory powers and adjudicated the dispute either as the

original authority empowered to decide a dispute or as the appellate authority. The Division Bench''s judgment in ''Ahobhila Math''s''case (1989-I-

L.W. 361), which has been set aside by the Supreme Court in ''Sri Ahobhila Math''s'' case (1991-2-L.W. 599), had not proceeded on the correct

principles in this behalf, as we have already seen, as the Bench followed, as the authority that a notice is necessary, the judgment of the Supreme

Court in the case of State of Maharashtra v. S.K Chander Kant (AIR 1977 S.C.148 = 90 L.W.88 (S.C.), which only decided in a particular case

whether notice under S. 80 of the Code of Civil Procedure, 1908 was necessary in a suit under a particular and a special Act. It did not see even

the reasons that were seen by the learned single judge in ''Ahobhila Math''s''case (98 L.W.303) that since the authority concerned had exercised

his quasi-judicial power and that suit was to enforce a statutory remedy under S. 70 of the Endowments Act, no notice under S. 80 of the Code of

Civil Procedure, 1908 was necessary. We are in complete agreement with the view expressed by Sethuraman, J. in the case of S.N. Chinna

Kandar and others v. The Commissioner, H.R. & C.E. and others (ILR 1982 Mad. 213) that the nature of the jurisdiction under S. 70 of the

Endowments Act is such that it cannot be equated to a suit against a public officer with reference to which notice under S. 80 of the Code of Civil

Procedure, 1908 is contemplated and the view expressed by Hadi, J. in the case of Munuswami Chetty and 9 others v. Commissioner, H.R. &

C.E, (Admn.) and 7 others (19921 L.W. 510) that no notice under S. 80 of the Code of Civil Procedure, 1908 is necessary in a suit of this kind.

33.nce we have come to the conclusion that a suit under S. 70(1) of the Endowments Act is maintainable without serving a notice under S. 80 of

the Code of Civil Procedure, 1908 upon the Commissioner or the Deputy Commissioners, who are impleaded as party defendants, the judgment

in A.S. No. 462 of 1980 has to, be set aside and L.P.A. No.168 of 1991 allowed. We do not, however, propose to restore the judgment and

decree of the trial court, for, the learned single judge, who has disposed of the appeal has delivered no judgment on merits and has accordingly not

examined the dispute on merits. As a result, therefore, on our findings in this behalf, the only appropriate direction will be to remit the case to the

appellate court for hearing on merits and disposal in accordance with law. The other two appeals, however, appeared to have derived no

advantage of our finding that the suits from which they have arisen were/are maintainable without service of notice under S. 80, of the Code of Civil

Procedure, 1908.

L.P.A. No. 29 of 1991, the trial Court has decreed the suit holding that the suit institution is not a temple within the purview of the

Endowments Act. A learned single judge of this Court has in appeal, however, found that the plaintiff-appellant in this appeal has not been able to

establish by any clinching evidence that the temple is a private one. The Supreme Court in T.V. Mahalinga Iyer v. State of Madras (AIR 1980 SC

2036) has said:

It is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being up to the party who

claims that it is a private temple, to establish that fact affirmatively. Of course, this initial presumption must be rebutted by clinching testimony and

the crucial question is as to whether the public worship in the temple as of right. Ordinarily, there may not be direct evidence regarding the exercise

of such right and inference has to be drawn from a wealth of circumstances.

It is also stated in this judgment by the Supreme Court:

The dedication to the public need not be by a deed and may be spelt out of the circumstances present. The right of the public to worship again is a

matter of inference.

The Supreme Court has noted as a circumstance against the private character of the temple that the temple itself was situated on Government

property, that processions with the deity were taken out and that offerings were made and that the structure especially of Gopuram and Mandapan

also indicated the public nature of the temple. In the instant case the site in which the temple stands is inam land of 1.78 acres granted under Exhibit

A-15 dated 17-6-1863. The learned single Judge has noted,

a look at this would show that the grant was not in favour of the Pagoda of Subramaniaswami and it was given for the purpose of the support of

the Pagoda (temple). It is also mentioned therein that the Manager (of the inam property) was there only for the time being.

There has been an attempt before us, however, to challenge this finding recorded on the contents of Ex. A-15.

35 One of the witnesses examined in support of the public nature of the endowment, D.W. 1, who is the Inspector of the Board, has stated that

the land where the temple is situate is a poramboke land. This statement has not been challenged on behalf of the plaintiff/appellant. The case of the

plaintiff, however, has been that the temple was built by his ancestor by name Ramaswami Iyer. There is, however, no legal admissible testimony to

support this assertion. There is no document in support of this Statement. There are, however, some material on which reliance has been placed by

the trial Court for a finding to the effect that the temple is a private temple, i.e., Exhibit A-4, an account-book of the year 1924 showing that pooja

expenses had been met by the plaintiff''s family members. Exhibits A-9 and A-10 which are lease deeds executed by third parties show that the

members of the plaintiffs family were described as trustees of the temple; Ex. A-8 which is an assignment order given by the Board of Revenue

wherein a member of the plaintiffs family has been described as trustee of the plaintiff-temple and some other documents such as Exhibit A-5, a

kist receipt and Ex. A-6, a receipt showing supply of levy paddy. Learned single Judge has, however, not referred to these documents which

according to learned counsel for the plaintiff is an omission that has caused serious prejudice to the plaintiffs case. He has also drawn our attention

to Exhibits A-1, A-2 and A-3, orders of the Deputy Commissioner, H.R. & C.E. Board, in an application for appointment of non-hereditary

trustee for the suit institution. We have looked every bit of evidence that has been shown to us by learned counsel for the appellant. We have,

however, not been persuaded to take these documents as evidence showing even prima facie that the plaintiffs family''s possession of the suit

institution has been that of the owner. Merely because family members of the plaintiff had been/have been in possession of the temple and its

properties it cannot be inferred that they were not holding it as a de facto trustee but it was their private temple. We are in complete agreement

with the view of the learned single Judge that the presumption as to the public character of the temple has not been rebutted by any reliable

evidence adduced on behalf of the plaintiff appellant.

36 In L.P.A. No. 206 of 1992, however, there is a parallel story of a dispute between the plaintiffs on the one hand and Meenakshi

Sundareswarar Temple, the second defendant-respondent on the other hand, the plaintiffs maintaining that the temple in question is their Private

temple and the Meenakshi Sundareswarar Temple represented by its Executive Officer claiming that it is a subsidiary or a part of the Meenakshi

Sundareswarar Temple complex. Madurai Veerasamy temple as it is called is claimed by the plaintiff/appellants on the assertion that the building

was constructed by the ancestors of the plaintiffs from out of their funds and the family deity of the plaintiffs, viz., Madurai Veerasamy and

Pathinettampadi Karuppasamy have been installed in the said building by the ancestors of the plaintiff for their own personal benefit and worship.

They have said that their ancestors have been openly, continuously and uninterruptedly in possession and enjoyment of the suit property for over

the statutory period and they have also acquired title by prescription. According to them the title of the ancestors of the plaintiff to the suit property

has been judicially recognised and accepted in a number of earlier proceedings, to mention, a suit in O.S. No. 278 of 1866 on the file of the

District Munsif s Court, Madurai town was filed against the Government by some of the ancestors of the plaintiff in which they asked for injunction

to restrain the government from interfering with the possession and enjoyment of the suit property. According to the plaintiffs the said suit was

decreed in favour of the ancestors of the plaintiffs recognizing and confirming the title of the ancestors of the plaintiffs. This was followed by another

suit in O.S. No. 511 of 1882 which again was decreed in their favour. To cut short, however, any detailed narration of the facts of this case, if we

may take notice of the case of the plaintiffs and the defendants stated in the judgment of the learned single Judge, we find, however, that the

plaintiffs (plaintiffs 6 to 8 are heirs of the original second plaintiff) have mainly relied upon the following facts:

Plaintiffs'' ancestors filed O.S. No. 278 of 1866 on the file of the District Munsif s Court, Madurai Town, against the government for declaration of

their ownership of the temple and for injunction restraining the government from interfering with their right of possession and enjoyment as owners

and poojaries. The suit was decreed. The second defendant Meenakshi Sundareswarar koil allegedly attempted to interfere with their possession.

Plaintiffs ancestors filed O.S. No. 511 of 1884 in the same court against the trustees and the authorities of the second defendant Meenakshi

Sundareswarar Temple. This suit was also decreed. The suit temple was subjected to partition dated 273.1897 between the members of the

plaintiffs'' family and a portion of the property was leased out to tenants. Thus according to the plaintiffs the suit temple is not a religious institution

as defined under Act 22 of 1959. The members of the public have no right to worship in the temple. The building does not bear any of the

characteristics of a public temple. The plaintiffs and their family members alone are doing pooja service in the temple hereditarily. According to the

defendants the suit temple is constructed in a poramboke land bounded on three sides by the ''nandavanam and the second defendant-Meenakshi

Sundareswarar temple. People worship in the temple as a matter of right. The judgments rendered in O.S. No. 278 of 1866 and O.S. No. 511 of

1884 will not affect the right of the public. The alleged partition dated 27.5.1897 will also not bind the public. The written Statement of second

defendant-Meenakshi Sundareswarar koil is on the same lines as that of defendants 1 and 3, i.e., the Commissioner, H.R. & C.E., Madras and the

Assistant Commissioner, H.R. & C.E., Madurai.

37 The trial Court has, however, found that the suit temple is not a religious institution as defined under Act 22 of 1959. A learned single Judge of

this court in appeal, however, has said, that the suit temple is a religious institution as defined in S. 6 (20) of the Act and it is not a private temple as

held by the trial judge. Before coming to the above conclusion the learned single Judge has taken a detailed notice of the evidence on the record

and has recorded that the temple is situate in poramboke land. He has rejected the plaintiffs'' case that though poramboke it is natham poramboke.

It is not known as to who built the suit temple and its origin is also not known. It is adjoining the famous Meenakshi Amman temple and it is natural

to infer that founders intended to put a temple for public worship and not for private worship. The appellate Court has also found that the evidence

adduced on behalf of the plaintiffs is not enough to hold that the temple and the properties owned by it belong to the appellants.

38 Mr. Mani, learned senior counsel for the appellants has, however, drawn our attention to the judgment of the District Munsif in O.S. No. 278

of 1866, Exhibit A-1 and the decree, Exhibit A-2. In a cryptic judgment without naming who deposed on behalf of the plaintiffs and who deposed

on behalf of the defendants, the learned District Munsif has noted:

The issue to be decided in this suit No. 278/1866 is whether the suit lands belonged to the plaintiffs - Temple or the Government. Secondly it was

mentioned that the suit lands had been in the possession of the plaintiffs for a long time, that they have been putting up Pandal and shed, that the

aforesaid land belonged to the plaintiffs - Temple, that further south of the aforesaid suit land even if Special Pooja were to be performed on the

eastern side which is a Government land, that therefore in order to put up pandals on the eastern, southern sides of the aforesaid lands it was

customary for the Government to obtain the Priests''. Tickets and the construction of verandah put up on the eastern side of the aforesaid land was

a very ancient of the plaintiffs. Further the same had been corroborated by the 2nd witness on behalf of the 2nd defendant. The tickets issued in

this regard had been filed on behalf of the 2nd defendant in order to prove, that the aforesaid suit land belonged to the Government. From the

proceedings it is clearly seen, that persons who obtained such tickets would customarily apply. The defendants had not proved, that the plaintiffs or

their ancestors showed the boundaries of the suit land and obtained tickets by submitting applications. Since, it had been mentioned as East

Chithrai Street in the aforesaid ticket numbers, it has become difficult to find out, that the same was obtained for a particular land as seen from the

evidence adduced on behalf of the plaintiffs and in these circumstances it was opined, that the 1st number ticket might have been got for putting up

a rental Belt Metal shop at the panda put up in Front of the verandah. It had been made known, that an account is ready showing the description

of the vacant site situate at Madurai and that the same belonged to the Government. But, the opposite side had not produced the evidence to

show, that there was dispute in the boundary pertaining to the suit site as per the aforesaid accounts. The witnesses herein had proved, that the

verandah is well within the limits without any extension. Even though the witness on behalf of the 2nd witness had stated, that the documents had

been prepared only for the sake of this case and the evidence adduced in this regard is believable. Since, there is no documentary evidence to

prove, that the suit land belonged to the Government the case is decided in favour of the plaintiffs.

This document does not show in what capacity the ancestors of the plaintiffs claimed enjoyment of the suit land. There is a specific mention of the

claim of the plaintiffs in the suit, ""the suit lands belong to the plaintiffs-temple"". The ownership of the lands is thus conceded to the temple and not

claimed by the plaintiffs. This also does not make clear who the plaintiffs were.

39 Learned counsel has also drawn our attention to the plaint (Exhibit A-3 is a copy of the plaint) in O.S. No. 511 of 1884 which was a suit with

two plaintiffs described as Priest/Priestess of the Padhinettampadi Karuppannasamy Temple and situate at Kizhatthirai Street, Madurai and

Veerasamy Pillaiyar Temple, Madurai. It is said in the plaint in paras 1 and 2 as follows:

The particulars contained in the plan annexed herewith which are situate within the jurisdiction of this Hon''ble Court, wherein the ''A"" marked

sanctum sanctorum of Padhinettampadi Karuppannasamy, the ''B'' marked Canopy, ''C marked Hall, ''D'''' marked vacant kitchen, ''E'' marked

Pillaiyar temple, ''F marked vacant site, ''G'' marked Chappaniswamy Hall, ''H'' marked hall for smaller deities, T marked sanctum sanctorum of

Madurai Veerasamy temple ''J'' marked yard and the -K'' marked vacant site all belonged to the plaintiffs ancestrally.

Right from the days of Rajas of Karnataka till this date the plaintiffs and their ancestor constructed the aforesaid temple and the same has been in

their possession and enjoyment by offering poojas to the aforesaid Gods and also by attending to the repairs, if any and had been maintaining the

same

The plaintiffs'' description, however, is relevant. They are described as ''both priest/priestess of the Padhinettempadi Karuppannasamy Temple''.

The description of the temple with sanctum sanctorum is also in no way enough to show that plaintiffs claimed exclusive, ownership and not right of

a priest/priestess who in a given circumstance may mean a Shebait/poojari. It is significant that possession and enjoyment is claimed but not title or

ownership as the declaration sought in this suit is vaguely worded as,

it may be declared that the aforesaid lands absolutely belonged to the plaintiffs and to be enjoyed by them as their wish, that further the defendant

may be restrained from encroaching and disturbing the peaceful possession and enjoyment of the plaintiffs and therefore the relief of perpetual

injunction maybe granted and the defendants maybe directed to pay the costs of Rs. 20/- towards the unlawful demolition

Defendants, who represented Meenakshi Sundareswarar Devasthanam might have contested on some grounds claiming rights in Meenakshi

Sundareswarar Devasthanam to manage the affairs of the suit temple or ownership in the land upon which a certain wall had been constructed in a

dispute as to who was the owner of the wall. The judgment in this case is not produced. The decree only shows ""Date of Judgment: 11 A.85. For

whom: In favour of the plaintiffs restraining the defendants by entering into the suit property in order to disturb the peaceful possession and

enjoyment of the suit property by the plaintiffs and also directing the defendants to pay Rs. 20/- to the plaintiffs for having demolished the wall

unlawfully and also directing to pay the costs to the plaintiff''

40 Exhibit A-7 which has been described as deed of loan executed on the 17th day of March, 1888 by Muthayee alias Meenakshi, (wife of

Chockalingam Pillai) who is said to be one of the ancestors of the plaintiffs, only shows that in order to construct a pucca building for the temple

(Madurai Veerasamy temple situated within the Madurai Town municipal limits) the wife of the temple priest took a loan of Rs. 500/- from one

Chackorabani Chettiar. This document hardly throws any light on the character of the suit temple.

41 The judgment in O.S.No. 577 of 1888 shows that Muthayee alias Meenakshi Achi had a dispute with Municipal Council Madurai Town on the

construction of 43 feet length 6 feet width verandah situated in Kula Chitrai Street running north to south. It is said in the judgment that the

verandah is the front portion of the Madura Veerana Karuppanaswami Kovil belonging to plaintiff. Except this description there is nothing to show

that any importance need be attached to the suit on the question whether the temple was a public temple or a private one.

42 The appellate judgment of the Subordinate Judge in the said suit, Exhibit A-10, however has started saying:

In this suit, the plaintiff, a female alleging herself to be the poojari and owner of certain temple, sues to have her title to a verandah 43 feet long and

6 feet wide in front of the temple, established, to cancel the resolution of the Municipality, dated 16th June 1888, by which it was proposed to

request the Governor in Council to acquire the verandah under the Land Acquisition Act, and to restrain defendants by injunction from molesting

plaintiffs enjoyment of the verandah.

The issue that the appellate judgment determined was whether there was any necessity for acquiring this property. The appellate Court held that

the suit was premature and unsustainable. Exhibit A-12 a notice by the Collector asking her to furnish the details pertaining to the purchase of

certain lands by the government and Exhibit A-14 dated 27.5.1897, a deed of partition amongst three persons, namely, Soornathammal alias

Periachel lamma, Chinnasellammal and Abirami Ammal, has something to say about the rights of these persons in the temple in these words:

WHEREAS our maternal grand father viz. Chock kalingam Pillai who is the father of our mother Karuppayee had been in enjoyment of the

undermentioned privileges viz., the Miraz rights of smearing the sandal paste on the doors of Madurai Veeraswami Temple and also the

Pathinetampadi Karuppanaswami Temple and Sri Kal Alagar Temple situate at the eastern side of Madurai Sri Meenakshi Sundareswarar Temple

and also the parivattam Pharaphernati and also the Miraz rights on the Tholayakottai 5th day festival of Sri Meenakshi Sundareswarar

Devasthanam Avani Moola Festival and also the rights of offering Pooja at Madurai Theradi Karuppannaswaami Temple ana also the

undermentioned properties and since the abovesaid person died without any male issue, his wife Muthayee Meenakshi Aya having enjoyed the

same and after that all the three of us having been enjoying the same in common and further in respect of the Miraz rights Pertaining to the smearing

of the sandal paste on the door of ri Kallazhagar Temple in Pathinattampadi Swami Temple, during the period of the ""ADI FULL MOON"" and

further the Revenue derived therefrom during the period from the previous Full Moon day till the next New Moon Day i.e. 30 days by offering

pooja at the Pathinettampadi Karuppannaswami Temple ana the same having been enjoyed by Periachellamma alias Somathammal amongst

ourselves hereditarily without anybody''s connection and further in respect of the Avanimoola Festival of Meenakshi Sundareswarar Devasthanam

pertaining to Tholayakottai ""LEELAS"" and also the Miraz rights of the aforesaid temples and the offering of the pooja at Madurai Theradi

Karuppannaswami Temple shall be enjoyed in Turns by ourselves and further in respect of the aforesaid offering pooja at the aforesaid

Pathinettampatti Karuppannaswami Temple and Madurai Veeraswami Temple during the period for 30 days in the month of Chithtrai beginning

from the New Moon day prior to the Full Moon and ending with the following New Moon day, all the three of us shall offer the aforesaid pooja in

common hereditarily and shall enjoy the Revenue derived therefrom in common, and in respect of the offering of pooja for all the 30 days in

common by all the three of us at the Madurai Pathinettampadi Karupannaswami Temple which had been in the enjoyment of periachellammal alias

Somathammal and during the Chithirai festival excluding the aforesaid 30 days in respect of the balance of eleven months for offering pooja at

Madurai Veeraswami Temple and also the pooja during the morning of 305 days at Karuppannaswami Temple shall be done every year in turn

hereditarily and the revenue derived by offering pooja of the aforesaid two temples shad be enjoyed hereditarily, that further the jewels etc. shall be

in custody of each of us by turns.

The contentions aforementioned completely destroy the plaintiffs'' case. Learned counsel for the appellants plaintiffs, however, has said that the

English translation furnished by the plaintiffs in the paper book has not been correct. The Tamil expressions conveyed differently and suggested full

ownership rights in the temple by the plaintiffs'' ancestors. We, for the said reason, asked for an official translation. The official translation reads as

follows:

Document No. 1393:

The deed of partition executed on the 27th day of May, of the year 1897, corresponding to the 15th day of the Tamil month of Vaikasi and of the

Tamil Year Hevilambi, amongst the three of us namely 1. Somathammal, who is known as Peria Chellammal, trustee and the temple pooja right

holder, Vellala Caste, W/o Subramania Pillai alias Ganapathia Pillai and 1st daughter of A. Kulandaivelu Pillai, residing at the eastern row of the

East Chithrai Street, of Madurai Town and (2) Chinna Chellammal 2nd daughter of the aforesaid A. Kulan daivelu Pillai of the aforesaid place and

aforesaid street W/O Subbiya Pillai, aforesaid caste and aforesaid living and (3) Abhirami ammal, third daughter of A. Kulandai Velu Pillai of the

aforesaid town and aforesaid street and W/O Shanmugam Pillai, aforesaid caste and aforesaid living is as follows:

Whereas our maternal grand father viz. Chockalingam Pillai, father of our mother Karuppayee, was in enjoyment of the following namely. The

Madurai Veerasami temple, situate at the east of the Meenakshi Sundareswarar Temple, Madurai and the Pathinettam Padi Karuppannaswamy

Temple, and the Miras rights of applying sandal paste on the ""sandal wood door"" and receive the ""Parivattam"" honours of the Pathinettampadi

Lord situated in the Kalazhagar Temple, and the Miras rights of the ''Tholajyakottai"" ""Leelai"" viz., the 5th day festival of the ""Avani Moola Festival

at the Meenakshi Sundareswarar Temple and the Miras rights of offering ""PazhuKappu"" to the aforesaid temple, and the Pooja rights of the

Theradi Karuppunnaswamy Temple, Madurai and also the properties undermentioned that since he had no male issue, after his life time the

property being in the enjoyment of Muthayee alias Meenakshiayee, the wife of the aforesaid, and that after her, all the three of us having been

enjoying in common the aforesaid Miras rights and that further with regards to the applying of sandal on the Sandal wood door of the

Pathinettampadi Swami Temple of the Sri Kalazhagar Temple on the full moon day of Adi and the entire revenue obtained from the aforesaid

festival collected both here and there and that further by performing pooja for a period of 30(thirty) days at the Pathinettampadi Karuppanna

Swamy temple, Madurai from the New moon day prior to the aforesaid Full moon of Adi till the next new moon day, the income obtained on

those 30 days, shall be enjoyed solely by Peria Chellamma alias Sornathammal, amongst us from generation to generation and without other''s

connection and that further in respect of the ""Avani Moola"" festival at the Devasthanam of the Meenakshi Sundareswar Temple, pertaining to the

Tholayakottai Leela"" and the mires rights of offering ""Puzhukappu"" to the aforesaid temple, and the right of offering of the Pooja at the Theradi

Karuppanna Swami temple, Madurai, that these rights shall be enjoyed in turns by us and that further in respect of offering of pooja at the

aforesaid Pathinettam Padi Karuppanna Swami Temple and Madurai Veerasamy Temple for a period of 30 days from the New moon day prior to

the full moon day of the ""Chitra"" Month, till the next new moon day all the three of us shall perform the pooja in common, from generation to

generation and shall enjoy the income derived therefrom in common and that further in respect of the right of offering Pooja at the Pathinettampadi

Karuppanasamy Temple, Madurai, which has been left in the enjoyment of Peria Chellamma alias Sornathammal, for a period of 30 days which is

being commonly enjoyed by us during the ""Chitra festival, that further for the rest of the days, viz., excluding the aforesaid 30 days, the right of

offering Pooja for the period of all months at the Madurai Veerasami Temple and the right of offering Pooja for the period of 305 days, at the

Karuppannasamy Temple shall be enjoyed by us in turns hereditarily and the Pooja shall be performed in the aforesaid two temples, and that the

revenue procured out of the same shall be enjoyed hereditarily, and that further the jewels belonging to the deities of the aforesaid 2 temples shall

be under the custody of the person who takes the turn to offer the Pooja and he would hand over the charge of custody, to the person who takes

the turn to offer the Pooja and he would hand over the charge of custody, to the person who gets the next turn.

There is no substantial improvement, however, in the case of the appellants-plaintiffs by the official translation of the Tamil document and it seems

there is no escape from the conclusion that the only right that the plaintiffs'' family allegedly claimed to enjoy in the suit temple has been the miras

rights, the right of offering pooja and the right of appointment of the offerings and nothing more. We, however, need not go any further in the quest

of such evidence that the plaintiff found and adduced to support their case that the plaint temple belonged to them as Appavoo Pillai who has been

the second petitioner before the Deputy Commissioner, has not chosen to depose in the proceeding for the fear of contradictions from what he has

clearly deposed in the proceeding before the Deputy Commissioner. It is said that Appavoo died pending suit. His deposition before the Deputy

Commissioner thus, to the extent that S. 32 of the Evidence Act permits, is admissible in the suit. He deposed before the Deputy Commissioner

that he aid not know in whose name the suit temple had been registered, and did not know as to how it came to belong to his ancestors. In that

deposition he said:

They did not buy the same from anyone. Since my ancestors were enjoying, it had come to be enjoyed by us.

He said further:

The house-taxes were paid in my capacity as trustee... The public could offer worship at the aforesaid temple only with our permission and we

have never refused such permission. Further such a thing had never happened Public also used to carry the sandal pot from this temple and each

individual should pay 10 annus for the same. While the devotes come for such pooja, we used to collect Ices from them and I would take away

that Revenue. The tax had not been levied on our original names. It was levied only us manager or trustee and only in that capacity we collect the

rents, Exhibits A-41 to A-47 do not pertain to the temple. Both the temples are situate in T.S. No. 1. The site mentioned in Ex. A-49, 50, 51 and

52 do not pertain to the suit site of the temple but are lying in front of the suit temple. The aforesaid site and also the site found in Ex. A-53 are not

that of the temple but adjoining it.

Can it be said on such evidence that the presumption that the temple is a public temple is rebutted? The answer is ''no''. The Court of appeal below

has rightly given the said answer.

43 Since we have found already that none of the suits should fail for want of notice under S. 80, Civil Procedure Code, but has found on merits in

agreement with the views of the learned Judges who have decided in appeals against the appellants in L.P.A. Nos. 29 of 1991 and 206 of 1992,

we are inclined to affirm the judgments and the decrees under the said appeals.

44 We have, however, seen in course of the examination of the materials on the record that the appellants herein have been in possession of the

temples evidently not in the capacity of the owners thereof but in some capacity either as a priest (poojari), Shebait (a sort of a trustee) or in some

capacity (manager) and maintaining the temples for which purpose when occasions arose they acted as the custodians and guardians of the deities.

In such cases, in particular, where the origin of a temple is lost in antiquity and it is not possible to ascertain how a certain person came to occupy

the position of the manager or a trustee of a religious institution/endowment, the Courts in India nave extended a de facto recognition to such

persons'' capacity as a sort of a trustee. They (the Courts in India) have taken the view that the right of a Shebait or Poojari is also a right textually

recognized and so recognized by the Courts and they too, to the extent of the limitations of their trust as a Shebait or a Poojari can have, in given

circumstances, a right of inheritance or a hereditary right as it is usually called. A de facto shebait has been called many a times as one who is in

possession of the endowed property and exercise all the functions of a shebait though the legal title is lacking. (See Panchkori v.Amode 41 CWN

1349). A decision of this Court in Subramania Gurukkal v. Abhinav Poomapnya A. Srinivasa Rao Sahib (AIR 1940 Mad. 617) has recognized

the presence of a de facto trustee in possession and management of a temple to bring a suit for the recovery of the temple lands. A de facto trustee

may not seek a declaration of his right to manage indefinitely the properties but can always seek recognition for the exclusive possession of the

office of the manager of the temple in the sense, that he is not a fugitive who has just hijacked the property of the temple but as manager he has

maintained it.

45 The three external enemies as sastras declare, lust, anger and greed, make people forget that all that belonging to God and charities should not

be claimed as absolute right. Servient rights, that is to say, service to God has, however, been recognized by Sastras and when not satisfied with

such servient rights these appellants, out of greed, claimed absolute ownership. They committed, no doubt, a sin not only in the eyes of God but

also in the eyes of law. Textual Hindu Law has on many occasions commended ''prayaschith and if the appellants are found to have realized that

they as servants of God and trustees of the properties belonging to God and served as trustees only, there will be no serious wrong if such right in

them is recognized, particularly, in view of the authority as aforequoted. Keeping this in view, we are inclined to observe before making any order

that, in the event of the appointment of a trustee, a committee or settlement of a scheme, for the management of the properties of the respective

institutions/temples, the respondents shall consider the desirability of giving to them the benefit of their past services and accept their de facto

presence as trustees if they are not otherwise found disqualified. For the reasons aforementioned, L.P.A. No. 168 of 1991 is allowed and the case

is remitted to the Court of appeal below for hearing and disposal in accordance with law. L.P.A. Nos. 29 of 1991 and 206 of 1992 are dismissed

with the observations as above. On the facts and circumstances of the cases, however, there shall be no order as to costs.