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2014 DIGILAW 3728 (MAD)

S. Solai v. N. A. Ayyakkanu

2014-10-09

V.M.VELUMANI

body2014
Judgment 1. This civil revision petition has been filed against the fair and decretal order, dated 02.01.2014 passed in I.A.No.560 of 2013 in O.S.No.133 of 2013 by the District Munsif cum Judicial Magistrate Court, Thirumayam. 2. The petitioner is defendant, whereas the respondent is plaintiff in O.S.No.133 of 2013 on the file of District Munsif cum Judicial Magistrate, Thirumayam. 3. The respondent filed O.S. No.133 of 2013 for permanent injunction restraining the petitioner and persons claiming through him from receiving first honour (mudal mariyathai) for Ilam Magar Division (Young magar division) of their community given by Thirukalambur Arulmigu Kathalivaneswarar Temple. The respondent also filed I.A.No.560 of 2013 for temporary injunction pending suit. 4. According to the respondent, Thirukalambur Arulmigu Kathalivaneswarar temple is a public temple and it belongs to ten sections of people residing in that Village. The family of the respondent is one among them. Originally, respondent's father Alagu Ambalam was receiving the first Honour. After his death, his first son Kannusamy (brother of respondent) was receiving the same. The said Kannusamy died without male issues and therefore, Singaram (father of petitioner) the second son of Alagu Ambalam was receiving the first honour. 5. In the year 2010, the second son of Singaram died. From the date of death of his second son, Singaram stopped coming to the temple. Hence, the respondent was receiving the first Honour from the year 2010. The said Singaram died on 22.09.2013. After his death, the respondent was receiving the first Honour. 6. At that stage, on 02.12.2013, the petitioner gave representation to the Executive Officer of the temple to give first Honour to him. The Executive Officer after enquiry by order in Na.Ka.No.754/2013 dated 09.12.2013 ordered that the respondent will be entitled to receive first Honour as he was receiving the same from the year 2010 and stated that only if the petitioner obtains suitable orders from competent court a final decision in this regard would be taken. 7. The petitioner was interfering with the right of respondent to receive first Honour. Hence, the respondent filed suit for permanent injunction and also I.A.No.560 of 2013 for temporary injunction pending suit. 8. 7. The petitioner was interfering with the right of respondent to receive first Honour. Hence, the respondent filed suit for permanent injunction and also I.A.No.560 of 2013 for temporary injunction pending suit. 8. The petitioner filed counter affidavit denying the averments of respondent and opposed the grant of injunction pending suit on the ground that, (a) the suit is barred by operation of Section 108 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959; (b) a peace committee meeting was held and both petitioner and respondent agreed for suspension of the order of the Executive Officer; and (c) the petitioner has already filed an appeal in O.A. No. 264 of 2013 before the Joint Commissioner, Tamil Nadu Hindu Religious and Charitable Endowment Department, Trichy. For the above reasons, petitioner prayed for dismissal of I.A.No.560 of 2013. 9. The learned Judge after considering all the materials on record granted interim injunction pending suit or till the order of Executive Officer is in force. 10. Aggrieved by the said order dated 02.01.2014 made in I.A.No.560 of 2013, the petitioner has filed the present Civil Revision Petition under Article 227 of the Constitution of India. 11. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 12. The learned counsel for the petitioner vehemently argued that the suit and Interlocutory Application are not applicable and are barred as per Section 108 of Tamil Nadu Hindu Religious and Charitable Endowment Act and Section 9 of CPC. The learned counsel contended that a Civil Court cannot decide the customary right of religious Honours. The learned counsel for the petitioner relied on the following Judgments: (i) 1961 STPL (LE) 1918 SC (SINHA RAMANUJA JEER VS. RANGA RAMANUJA JEER) (ii) 2004(4) CTC 650 MUTHAMILSELVAN AND OTHERS VS. A.MANICKAM AND OTHERS (iii) 2009(4) CTC 377 MUTHAMILSELVAN AND OTHERS VS. A.MANICKAM AND OTHERS (iv) 2011(6) CTC 689 The EXECUTIVE OFFICER OF SRI NACHIAR DEVASTHANAM V. PATTU AMMAL. 13. In paragraph 13 of 1961 STPL (LE) 1918 SC (cited supra), it is stated as follows: 13. It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly. For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simplicities will not lie in a civil court. It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly. For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simplicities will not lie in a civil court. (2) But a suit to establish one's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in a civil court. (3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties. 14. In paragraph 28 of 2004 (4) CTC 650 (cited supra), it is stated as follows: "So far as the jurisdiction question No.(1) raised above is concerned, on the part of the petitioners, the learned counsel appearing for them would cause production of humpty numbers of judgments particularly delivered by the Honourable Apex Court, such as reported in Sri Sinha Ramanuja Jeer alias Sri Vanamamalai Ramanuja Jeer Swamigal V. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others, AIR 1961 S.C. 1720 wherein it has been clearly spelt out that since the suit is regarding the religious Honours, the same is not maintainable before the Civil Court further observing that 'prima facie', Honours such as who is to stand in the ghoshti, in what place, who is to get the tulasi etc... cannot be considered to be part of the remuneration or perquisites attached to an office for they are only tokens of welcome of an honoured guest within the precincts of a temple'. 15. In paragraphs 19, 20 and 30 of 2009 (4) CTC 377 (cited supra), it is stated as follows: 19. Section 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 reads as follows: "Whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;" 20. Section 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 reads as follows: "Whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;" 20. From the close reading of the provision of Section 63(e) of the said Act, it is pellucid that if any dispute arises with regard to honour, deciding authority is the Joint Commissioner or Deputy Commissioner, as the case may be and Civil Court is not competent to settle such issue. ...................... 30. It has already been pointed out in many places that the present Suit has been instituted so as to declare that the plaintiffs are entitled to receive honour from the suit Temple by means of rotation. Therefore, it is quite clear that the present Suit has been instituted only with regard to declaration of the alleged honour. In fact, a rival dispute is in existence between the plaintiffs and defendants. Under the said circumstances, as stated earlier, the Joint Commissioner or the Deputy Commissioner of the Hindu Religious and Charitable Endowments Board is competent to look into the dispute that exists betwixt the parties and therefore, the present Suit is not legally maintainable. 16. In 2011 (6) CTC 689 (cited supra), this Court held as follows: "Plaintiff cannot establish customary right for enforcing such right through Civil Suit ? Plaintiff cannot maintain Suit in respect of religious honours and privileges, unless any violation of right in temple is alleged" 17. Per contra, the learned counsel for the respondent argued that the respondent has not filed the suit for establishing any customary religious rights or Honours. The respondent has filed the suit for permanent injunction restraining the petitioner from interfering with the respondent receiving the Honour. The respondent is receiving Honour from the year 2010. The petitioner due to political enmity is trying to prevent the respondent from receiving first Honour. 18. The learned counsel for the respondent relied on the judgment reported in AIR 1995 SUPREME COURT 2001 (P.M.A METROPOLITAN V. MORAN MAR MARTHOMA) wherein it is stated as follows: "27. To begin with the objection to the maintainability of the suit under Section 9, of the Civil Procedure Court was probably not raised in 1954 and 1959 and if raised was not pressed. To begin with the objection to the maintainability of the suit under Section 9, of the Civil Procedure Court was probably not raised in 1954 and 1959 and if raised was not pressed. But that by itself may not preclude defendant-appellant from raising it, even in this Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree passed without jurisdiction in non est in law, What then is the scope of the Section? Does it comprehend suits for declaration that the Syrian Churches are episcopal? Could the respondent-plaintiff claim declaration that Malankara Association had become autocephalous and no priest could refuse to recognize the authority of the Catholico? Could the plaintiff seek injunction, restraining the priests or Deacon from performing any other sacramental services and prohibits the defendants from interfering with the administration of the Malankara Church? How would the bar of jurisdiction operate if only part of relief is cognisable? To appreciate these aspects it is necessary to set out the Section itself and examine its scope and then advert to facts: "9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation-I or whether or not such office is attached to a particular place." One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognizable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai vs. Vijay Kumar& Ors., AIR 1974 SC 1126 . It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai vs. Vijay Kumar& Ors., AIR 1974 SC 1126 . The expansive nature of the Section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the Section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word ‘shall' and the expression, ‘all suits of a civil nature' unless ‘expressly of impliedly barred'. 28. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word ‘shall' makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of ‘expression, ‘all suits of civil nature'. The word ‘civil' according to dictionary means, ‘relating to the citizen as an individual; civil rights'. In Black's Legal Dictionary it is defined as, ‘relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings'." 19. The learned counsel for the respondent also contended that the Civil Revision Petition under Article 227 of Constitution of India is not maintainable. The petitioner has not made out any case for this Court exercising extraordinary jurisdiction under Article 227 of Constitution of India. 20. I have carefully considered the materials on record, Judgments relied on by the counsel for petitioner and respondent and their arguments. 21. From the three Judgments relied on by the learned counsel for the petitioner, namely, 2004(4) CTC 650 [MUTHAMILSELVAN AND OTHERS VS. A. MANICKAM AND OTHERS], 2009(4) CTC 377 [MUTHAMILSELVAN AND OTHERS VS. 20. I have carefully considered the materials on record, Judgments relied on by the counsel for petitioner and respondent and their arguments. 21. From the three Judgments relied on by the learned counsel for the petitioner, namely, 2004(4) CTC 650 [MUTHAMILSELVAN AND OTHERS VS. A. MANICKAM AND OTHERS], 2009(4) CTC 377 [MUTHAMILSELVAN AND OTHERS VS. A. MANICKAM AND OTHERS], 2011(6) CTC 689 [The EXECUTIVE OFFICER OF SRI NACHIAR DEVASTHANAM V. PATTU AMMAL], this Court had held that Civil Court has no jurisdiction to entertain a suit with regard to establishing a customary religious right. 22. At the same time, the judgment reported in 1961 STPL (LE) 1918 (SC) (SINHA RAMANUJA JEER VS. RANGA RAMANUJA JEER) relied on by the learned counsel for petitioner, the Apex Court in paragraph 13 has held that, 'But a suit to establish one's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in a Civil Court'. 23. In the Judgment reported in AIR 1995 SUPREME COURT 2001 (P.M.A METROPOLITAN V. MORAN MAR MARTHOMA), relied on by the learned counsel for the respondent, the Honourable Apex Court has elaborately considered the scope of Section 9 of CPC and held that all the suits of "civil nature" are maintainable in Civil Court. The Apex Court in view of Explanation-1 to Section 9 CPC held that a suit is of civil nature even if the right may entirely depend on the decision of questions as to religious rites or ceremonies. 24. Explanation (1) to Section 9 CPC reads as follows: "A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies" 25. The respondent has filed suit for permanent injunction restraining the petitioner from interfering with his right to receive the first Honour. The respondent has not filed suit to establish any of his religious right or right to receive first Honour. The respondent has filed suit for permanent injunction restraining the petitioner from interfering with his right to receive the first Honour. The respondent has not filed suit to establish any of his religious right or right to receive first Honour. In view of the nature of the relief sought for by the respondent, Section 108 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, is not applicable to the facts of case and the suit is not barred by operation of Section 108 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959. 26. The learned counsel for the petitioner has not made out any case for this Court to interfere with the impugned order of the learned Judge under Article 227 of Constitution of India. The jurisdiction of the Court under Article 227 can be exercised only sparingly and cautiously. The discretion under this Article has to be exercised judiciously. Considering the facts of the present case, this Court is of the view that there is no circumstances or reason to exercise discretion under Article 227 of the Constitution of India, as the relief sought for is not barred under Section 108 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 and under Section 9 of CPC. 27. The learned Judge after considering the materials on record and facts has granted interim injunction till the pendency of the suit or till the orders of the Executive Officer is in force. The learned Judge has not committed any error or material irregularity or illegality. There is no perversity in the order of the learned Judge. Further, the petitioner has already filed an appeal against the order of the Executive Officer to the Joint Commissioner, Hindu Religious and Charitable Endowment Department, Trichy. 28. For the above reasons, there is no infirmity in the order of the learned Judge, impugned in this civil revision petition, warranting interference by this Court. 29. In the result, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.