JUDGMENT: This appeal suit is directed against the judgment and decree dated 23.12.1983 rendered in O.S. No.183 of 1982 by the Court of Subordinate Judge, Villupuram hereby decreeing the statutory suit filed by the second respondent under Sec.70 of the H.R. & C.E. Act thereby praying for declaration to the effect that the suit temple is a private temple further setting aside the order passed by the Commissioner H.R. & C.E., Madras in A.P. No.35 of 1981, dated 16.11.1981 and for costs. 2. Today when the above appeal suit is taken up for consideration in the presence of the learned Special Government Pleader appearing on behalf of the H.R. & C.E. Department/ appellant and the learned counsel appearing for the respondents as well and with no representation made on the part of the first respondent. The learned A.G.P. appearing for the appellant after giving the brief history of the case on facts as to how the statutory suit came to be filed before the trial Court would stick to the legal point stating that over and above the order passed by the Commissioner H.R. & C.E. law permits for a statutory suit to be filed before the Court of competent jurisdiction within 90 days and in the case on hand the order of the Appellate Authority, the Commissioner had been passed on 16.11.1981 and the copy application had been made on 15.12.1981; that the copy was delivered on 24.12.1981 and the suit was filed on 19.4.1982 needless to point out that the suit is barred by limitation. But without an application being filed to condone the delay under Sec.5 of the Limitation Act explaining the reasons thereby and with due opportunity for the other party to contest the same a specific order has to be passed on enquiry held in the I.A. for condoning the delay and if it is allowed, the suit could be entertained, lest, there is no question of the very suit being entertained. 3. 3. The learned counsel would further submit that a peculiar procedure has been followed in this case by the lower Court having bluntly entertained the suit and framing an issue to the limitation point has decided the same in favour of the petitioner, thereby condoning the delay thus validating the suit and then passing the judgment on merit in favour of the plaintiff, which is totally erroneous since the delay that has occurred in so far as the filing of the suit is concerned is covered by statutory provisions i.e., under Sec.5 of the Limitation Act and the same is not within the discretion of the Court whereas the Court is bound by the section and unless a separate order is passed on a specific I.A. filed with due opportunity for the otherside to contest the same and after enquiry disposing that application, the suit could not be numbered and therefore would exhort that at this score itself the suit becomes liable to be dismissed and without rejecting the very suit at the institution of the same, the lower Court has entertained the suit and has conducted the trial and decided the matter, which is totally erroneous and against the legal convictions and hence on this score itself the appeal has to be allowed setting aside the judgment and decree passed by the lower Court. 4. On the part of the learned counsel appearing for the second respondent, it would be submitted that the learned Judge has been pleased to consider the question of limitation by framing an issue on the legal point and to consider the same in para. 8 of the judgment and ultimately arrived at the conclusion to condone the delay that had occurred in the suit and therefore in view of the fact that he has got an excellent case on merit he would pray to the Court to validate the manner in which the delay had been condoned by the trial Court and to pass the judgment on merits. 5. The question of limitation in filing the suit is concerned it is covered by the Limitation Act which is meant for the purpose of covering such suits filed with delay particularly under Sec.5 of the said Act. 5. The question of limitation in filing the suit is concerned it is covered by the Limitation Act which is meant for the purpose of covering such suits filed with delay particularly under Sec.5 of the said Act. The plaintiff knowing fully well that there had been a delay caused over and above the permissible limits of law, he should have filed the suit along with the delay condonation petition under Sec.5 of the Limitation Act thereby not only giving the extent of delay but also assigning the reasons for the same and the Court on entertaining such application is expected to issue notice on the other side even if the delay is to the extent of one day and such opportunity for the other side to file its counter and to participate in the enquiry. It should have decided first on the point of delay by an order disposing the I.A. filed for the condonation of delay and in case the application comes to be allowed by the lower Court, thereby condoning the delay caused in filing the suit, then only the question of taking the suit on its file would have arisen and in case the petition is dismissed, automatically the suit could not be entertained since barred by the Law of Limitation. 6. Without following this well established and usual procedure which in the course of business of entertaining the suit is followed in all the Courts of civil jurisdiction and quasi judicial authorities, it is amazing to note that the lower Court has followed the peculiar procedure having entertained the suit even without an application being accompanied by the same under Sec.5 of the Limitation Act and framing an issue on the question of Limitation along with the other issues, thus ultimately deciding the same is totally wrong and erroneous and cannot be admitted at any stretch of imagination. 7. 7. In short, the suit as filed by the second respondent herein before the trial Court is without an I.A. for condoning the delay under Sec.5 of the Limitation Act and hence the same should not have been entertained but should have been rejected at the stage of filing itself and therefore all the other procedures followed and the very decision arrived at by the trial Court in the whole of the suit are nothing but erroneous and therefore the judgment and decree passed by the trial Court only becomes liable to be set aside. 8. In result, (i) the above appeal suit succeeds and the same is allowed; (ii) The judgment and decree dated 23.12.1984 rendered by the Court of Subordinate Judge, Villupuram in O.S. No.183 of 1982 are hereby set aside; (iii) the suit in O.S. No.183 of 1982 is dismissed, as barred by limitation; (iv) However, in the circumstances of the case there shall be no order as to costs. In further consideration of the request made on the part of the learned counsel for the second respondent, it is hereby observed that if a fresh suit on the same set of facts and circumstances as pleaded in the plaint is filed by the second respondent accompanied by an application under Sec.5 of the Limitation Act seeking to condone the delay that had occurred, the lower Court may consider the same in which event the time consumed from the date of filing of the suit till the judgment passed by this Court will not stand in the way of limitation.