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2000 DIGILAW 684 (MAD)

R. Mathi v. M. Thangavelu & Others

2000-07-17

K.P.SIVASUBRAMANIAM

body2000
Judgment : 1. This revision is directed against the order of the learned Subordinate Judge, Erode, in I.A.No.997 of 1999 in O.S.No.575 of 1997. The petitioner herein is the 5th respondent/fifth defendant in the suit. 2. The impugned order in I.A.No.997 of 1999 came to be passed on the petition filed by the plaintiff for deleting defendants 4 to 7 from the array of parties. The learned Subordinate Judge ordered the petition as prayed for. Hence, the revision petition. 3. Toappreciate the scope of the dispute between the parties, it is necessary to deal with the allegations continued in the plaint in O.S.No.575 of 1997. The plaintiff had filed the suit for setting aside the order of the Commissioner, H.R. & C.E. (Admn.) Department, dated 112. 1986, for declaring that the plaintiff was the hereditary trustee of the suit temple for restraining the first defendant from interfering with the possession, administration and management of the affairs of the suit temple by a permanent injunction and to grant further reliefs. According to the plaintiff, the suit temple was founded by the members of the Vellala Gounder Community of Veerappanchatram, who formed a religious denomination for themselves. The plaintiff and before him his ancestors were managing the affairs of the temple as the hereditary trustees of the said temple and no one outside the family of the plaintiff had at any time interfered with the plaintiffs and his ancestors’ administration of the temple. Therefore, the right of the plaintiff was hereditary. However, an executive officer of Sri Peria Mariamman Temple, Erode, was appointed by the Assistant Commissioner, H.R. & C.E. (Admn.) Department, Erode, as the fit person of the temple on 12. 1989 and the fit person never took charge of the management from the plaintiff and he never interfered with the plaintiffs possession and management of the temple. The order of appointment of Fit person was not given effect to. The plaintiff subsequently, came to know that the Assistant Commissioner, the third defendant by his order dated 9. 1981 appointed the fifth defendant along with one V.K.Shanmugam as non-hereditary trustee of the temple. While the said Shanmugam resigned from the office of the trusteeship it would appear that defendants 5 to 7 were appointed as non-hereditary trustees by the third respondent on 22. 1985. 1981 appointed the fifth defendant along with one V.K.Shanmugam as non-hereditary trustee of the temple. While the said Shanmugam resigned from the office of the trusteeship it would appear that defendants 5 to 7 were appointed as non-hereditary trustees by the third respondent on 22. 1985. Therefore, according to the plaintiff, the appointment of defendants 5 and 7 as non-hereditary trustees of the temple was not valid and not binding on the plaintiff. On his coming to know of the appointment of defendants 5 and 7 he filed a petition in O.A.No.62 of 1988 before the Deputy Commissioner, H.R. & C.E., (Admn.) Department, Coimbatore, against defendants 5 and 7 under Sec.63(b) of the H.R. & C.E. Act 22 of 1959, to declare him as a hereditary trustee. The Deputy Commissioner allowed the O.A. declaring the plaintiff as the hereditary trustee of the temple. The plaintiff continued to act as hereditary trustee. The Commissioner initiated suo motu proceedings in S.M.R.No.7 of 1990 after a lapse of two years. The said action of the first defendant was mala fide apparently on the compulsion of defendants 5 to 7. As enquiry was conducted by the Commissioner and the plaintiff had set forth his case. Defendants 5 to 7 also filed certain documents in the suo motu enquiry. After the enquiry, the Deputy Commissioner by his order dated 17. 1994, disposed of the application filed by the plaintiff, according to the plaintiff, on erroneous and unsustainable grounds. As against the said order, the plaintiff filed an appeal before the Commissioner which was also dismissed by order dated 112. 1996. It is as against the said order, the present appeal has been filed. 4. During the pendency of the appeal, even on an earlier occasion the plaintiff filed a memo stating that defendant 4 to 7 are no longer holding the office of the temple and as no relief was asked for they be exonerated from the suit. The learned Subordinate Judge recorded the memo and deleted defendants 4 to 7. As against the said order, C.R.P.No.3856 of 1998 was filed by the revision petitioner herein. P.Shanmugam, J. by his order dated 26. 1999 held that by merely filing a memo, the petitioners right cannot be defeated as he was a party to the suit, he was entitled to continue to participate in the trial unless he was legally removed from the arrary of parties. P.Shanmugam, J. by his order dated 26. 1999 held that by merely filing a memo, the petitioners right cannot be defeated as he was a party to the suit, he was entitled to continue to participate in the trial unless he was legally removed from the arrary of parties. With the result, the order of the learned Subordinate Judge recording the memo was set aside without prejudice to the right of the respondent therein to file an application for deletion or amendment of the plaint. 5. Thepresent application in I.A.No.997 of 1999 came to be filed in the said background under O.1, Rule 10(2), C.P.C., supported by an affidavit in which the plaintiff has stated that since the suit was filed only against the statutory order passed by the first defendant, if defendants 4 to 7 were not deleted, he will be put to irreparable loss. 6. A counter was filed by the fifth defendant, the revision petitioner herein, contending that having failed in O.A.No.7 of 1993, the petitioner has moved the Commissioner under Sec.69 of the Act and his contention was rightly rejected. It may be noted that in all the earlier proceedings respondents 5 to 7 were parties and in the present suit, the only contention was that the earlier order passed by the Joint Commissioner and the Commissioner were not justified. The petitioner had taken charge from respondents 5 to 7 only on the strength of the order passed in O.A.No.62 of 1986. Therefore, respondents 5 to 7 are necessary parties. The suit had been taken for trial and the petitioner was to be cross-examined by the side of respondents 5 to 7. It was also pertinent to note that the petitioner did not take steps earlier to delete respondents 5 to 7 in O.A.No.7 of 1993. 7. The learned Subordinate Judge by a very short order allowed the petition after holding that as per the order of the High Court in C.R.P.No.3856 of 1998, the petitioner has filed a petition to delete defendants 4 to 7 and that no prejudice will be caused to respondents 4 to 7. Hence, the present revision petition. 8. Learned counsel for the petitioner submits that the very basis of the filing of the suit by the plaintiff was in the context of appointing defendants 5 and 7 as non-hereditary trustees. Hence, the present revision petition. 8. Learned counsel for the petitioner submits that the very basis of the filing of the suit by the plaintiff was in the context of appointing defendants 5 and 7 as non-hereditary trustees. Though the present proceedings relate to the declaration of his right as a hereditary trustee, the entire proceedings being an off-shoot of appointing defendants 5 and 7 as non-hereditary trustees, they are very much vitally necessary for the proceedings. Learned counsel would also state that even otherwise as provided under Sec.15 of the Act any worshipper was very much a person having locus standi. Reliance is placed on the judgment in The Commissioner, H.R. & C.E., Madras v. K.Rukmaniammal The Commissioner, H.R. & C.E., Madras v. K.Rukmaniammal The Commissioner, H.R. & C.E., Madras v. K.Rukmaniammal, 1993 T.L.N.J. 120 in support of his contention that as a worshipper he is entitled to be included in the array of parties at least as a proper party if not a necessary party. 9. Mr.P.Rathnadurai, learned counsel for respondents however submits that the period of appointment of the revision petitioner as a hereditary trustees was admittedly over and therefore, there was no cause of action for the revision petitioner to continue as a trustee and thus he has no locus standi to resist the prayer as made in the suit. He would also point out that even during the pendency of the proceedings before the Deputy Commissioner, defendants 5 and 7 have not been taking active part. He would further submit that as a plaintiff he was the master of the suit and therefore, he was entitled to pray for the deletion of the parties who are not necessary for the disposal of the suit. He also placed reliance on the judgment of Punjab and Haryana High Court in Banarsi Das v. Panna Lal, A.I.R. 1969 P. & H. 57 and that of Calcutta High Court in N.C.Garai v. Matri Bhandar N.C.Garai v. Matri Bhandar N.C.Garai v. Matri Bhandar, A.I.R. 1974 Cal. 358. 10. Both the aforementioned judgments arose out of a petition filed by the third parties to be added as parties in the suit and the courts held that a person may not be added as a defendant merely because he would be the incidentally affected by the judgment. 11. 358. 10. Both the aforementioned judgments arose out of a petition filed by the third parties to be added as parties in the suit and the courts held that a person may not be added as a defendant merely because he would be the incidentally affected by the judgment. 11. Reference is also made to a judgment of a Division Bench of this Court in T.P.Attimuthu v. A.K.Parvathammal, 87 L.W. 562. Reference is made to the observation that non-joinder of the rival claimants for hereditary trusteeship was not fatal to the suit. 12. I have considered the submissions of both sides. It is not even necessary to go into the issue as to whether defendants 4 to 7 are entitled to continue as defendants either as necessary parties or in the capacity of being worshippers of the temple as proper parties. One has to look into the averments made in the plaint and a perusal of the summary of the plaint even as mentioned above, would show that several allegations have been made to the effect that the impugned order of the Commissioner has been made only at the instance of defendants 5 to 7. Those allegations are very much on the record and naturally the trial court is bound to consider the said allegations in deciding the merits of the suit. It is also not disputed that in the enquiry before the Deputy Commissioner, defendants 5 to 7 have also appeared and have filed certain documents on the basis of which only the impugned order of the Commissioner came to be passed. 13. It is also seen that the suit has reached the stage of trial and examination of witnesses is going on. Therefore, I fail to understand as to why the plaintiff thought of deleting not only defendants 5 to 7, but also the Executive Officer of the temple being the fourth defendant which has also been accepted by the learned Subordinate Judge without any justification. 14. The order of the learned Subordinate Judge does not deal with the issue properly. The only sentence which can be treated as a positive expression of any reason is that no prejudice will be caused to respondents 4 to 7. The said reason is untenable and no other reason is attributed for accepting the petition filed by the plaintiff. 14. The order of the learned Subordinate Judge does not deal with the issue properly. The only sentence which can be treated as a positive expression of any reason is that no prejudice will be caused to respondents 4 to 7. The said reason is untenable and no other reason is attributed for accepting the petition filed by the plaintiff. The fact that the respondent herein was given liberty to file a petition cannot mean that such a petition should be automatically allowed without considering the merits of the reasons in support of the petition. 15. It is true that the plaintiff has the liberty to add any person as a party to the suit or to delete. In the present suit, having added defendants as parties with certain allegations against them, it is not open to the plaintiff to seek deletion of them only on the ground that defendants 5 and 7 have ceased to be trustees of the temple. The Executive Officer as well as the persons interested in the affairs of the temple should continue as parties to the suit, in the general interest of the temple and in order to gather all facts necessary for a decision. 16. In the result, I am unable to sustain the order of the learned Subordinate Judge and the revision is allowed. No costs.