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1993 DIGILAW 880 (MAD)

V. S. Muthukumar v. V. P. Kuppuraj

1993-12-20

S.M.ALI MOHAMED

body1993
Judgment :- 1. This revision petition is filed against the Order dated 18.7.1986 passed in O.S. No. 514 of 1981 on the file of III Additional Subordinate Judge, Coimbatore with regard to preliminary issue, viz., is the suit under S. 92 of Civil Procedure Code maintainable in view of provision in S. 5(e) of Tamilnadu Hindu Religious and Charitable Endowments Act, 1959? 2. The Respondents 1 to 5 herein instituted a suit under S. 92 of Civil Procedure Code to frame a scheme for the management of ‘B’ Schedule mutt, viz., Kumaraswami Gounder Madam before the Court of the Subordinate Judge, Coimbatore in O.S. No. 514 of 1981 after obtaining leave of the court. The petitioner herein challenged the grant of leave under S. 92 CPC by preferring a revision before this Court in C.R.P. No. 2265 of 1981 ( V.S. Muthukumar and others v. V.P. Kuppuraj and others ) which was dismissed with the following observations:— “All the points, which the learned counsel seek to urge as to the maintainability of the suit, can be agitated only during the trial of the suit. There are no grounds, therefore, to interfere in the order granting permission to institute the suit under S. 92 C.P.C.”. When the matter was taken up for trial, the learned Subordinate Judge, instead of trying all the issues framed, took up issue No. 3 suo motu and decided that the suit transaction will not come under S. 5(e) of the Tamilnadu Hindu Religious and Charitable Endowements Act, 1959 and that the suit instituted by the respondents under S. 92, C.P.C. was maintainable. Aggrieved by the said order, the petitioner herein has filed tins revision petition. 3. It is contended by the learned counsel for the petitioner that after amendment to O. 14, R. 2 of the Civil Procedure Code by Amending Act 104 of 1976, it is not open to the court to decide a mixed question of fact and law as a preliminary issue. It is contended that the facts and circumstances of the instant case involve both question of fact and law and evidence has to be adduced to prove that Kumarasami Gounder Madam comes within the definition of Hindu Religious institution and the learned trial Judge erred in taking up the trial issue, deciding the same and giving a finding on the same. He further referred to the order of this court in C.R.P. No. 2286 of 1981 dated 24.7.1981 (“ V.S. Muthukumar and others v. V.P. Kuppuraj and others ”) wherein this court observed as follows:— “All the points, which the learned counsel seek to urge as to the maintainability of the suit, can be agitated only during the trial of the suit. There are no grounds, therefore, to interfere in the order granting permission to institute the suit under S. 92, C.P.C.” In view of the above, it is contended by the learned counsel for the petitioner that the trial judge ought to have decided all the issues in the suit and ought not to have decided the third issue alone as a preliminary issue. On the other hand, the learned counsel for the respondents submits that is not the mixed question of fact and law but it is purely question of jurisdiction of the Court, which the trial court was justified to decide as a preliminary issue. 4. After carefully considering both the contentions of the petitioner and the respondents, I am of the view that there is force in the contention of the learned counsel for the petitioner. The question whether Kumarasami Gounder Medam comes within the definition of Hindu Religious Institution, has to decided by adducing evidence and therefore, it is mixed question of fact and law, as it is a mixed question of fact and law, after the amendment to O. 14, R. 2 of Civil Procedure Code by Amending Act 104 of 19 76, it is not open to the trial court to decide a mixed question of fact and law as a preliminary issue. In this connection, the learned counsel for the petitioner cited a ruling reported in “ Ramdayal Umaraomal v. Pannalal Jagannathji ” (A.I.R. 1979 Madhya Pradesh 153 at page 157), wherein the Court has observed as follows:— “Therefore after reviewing the entire case-law on the point, we are of opinion that under O. 14, R. 2, C.P. code, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any eivdence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue”. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue”. He also referred to Mullas Civil Procedure Code Volume II page 1206 where the learned authors have stated as follows:— “In Ramdayal Umaraomal v. Pannalal Jagannathji (1978 M.P. 16) a Division Bench of Madhya Pradesh High Court took the view that since the question of jurisdiction is one which goes to the root of the matter if it is not decided at the earliest opportunity, it may cause unnecessary expenses and harassment to the parties, that is the requirement of the law that “the question of jurisdiction must be decided first, as a preliminary issue and that even if some evidence is to be recorded before the question of jurisdiction can be disposed of that also can be disposed of. The matter, however, went before a Full Bench of the High Court which reversed the judgment of the Division Bench and held that an issue relating to jurisdiction of the Court can be tried as a Preliminary issue only if it can be disposed of without recording any evidence and that if such an issue is a mixed question of law and fact requiring recording of evidence it cannot be tried as a preliminary issue”. In view of the above, there is infirmity in the impugned order. In the instant case whether Kumarasami Gounder Madam is a religious institution coming within the purview of the Hindu Religious and Charitable Endowments Act, 1959 has to be decided only by adducing evidence and as such, it is a mixed question of fact and law that has to be decided in the main suit along with other issues. In view of the above, the impugned order is set aside, with the observation that the trial court shall decide all the issues framed in the suit itself without reference to say findings or observations made by the trial Court in its order dated 18.7.1986. The Civil Revision Petition is allowed. Upon the facts and circumstances of the case, there shall be no order as to costs.