Madras High Court
R.Chinadurai vs The Commissioner on 20 December, 2021
Author: M.Sundar
Bench: M.Sundar
WP(MD) No.18060 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No.18060 of 2015
M.P.(MD).No.1 of 2015
R.Chinadurai ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious & Charitable Endowment,
Chennai.
2.The Joint Commissioner,
Hindu Religious & Charitable Endowment,
Madurai Division,
Madurai.
3.V.Rasu Pillai
4.M.Deivendran
5.V.Pitchaipillai
6.V.Muppilian
7.P.Ariyanayagam ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorari, call for the records pertaining to
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WP(MD) No.18060 of 2015
impugned proceedings of the second respondent in Notice in O.A.
18/2014/C1 dated 11.09.2015 and quash the same as illegal.
For Petitioner : Mr.V.R.Shanmuganathan
For Respondents : Mr.A.Baskaran
Additional Government Pleader
for RR1 & 2
Mr.S.Balaji
for Mr.S.Lakshmanan for RR3, 6 & 7
No-appearance for R4 and R5
ORDER
The captioned main writ petition was taken up and heard out.
2. The proceedings made in two previous listings on 12.11.2021 and 13.12.2021 are of relevance and the same read as follows:
' Proceedings dated 12.11.2021:-
Mr.M.Sridharan, learned counsel for writ petitioner requests for an adjournment and Mr.S.Lakshmanan, learned counsel for respondents 3, 6 and 7 (prviate respondents) and Mr.A.Baskaran, learned Additional Government Pleader for respondents 1 and 2 are before this Court.2/15
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2. Adjourned at the request of learned counsel for writ petitioner.
3.List after four weeks.
4. List on 13.12.2021.' 'Proceedings dated 13.12.2021:-
Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 12.11.2021.
2. Today, Mr.M.Sridharan, learned counsel for the lone writ petitioner, Mr.A.Baskaran, learned Additional Government Pleader for respondents 1 and 2 (official respondents) and Mr.S.Balaji, learned counsel representing Mr.S.Lakshmanan, learned counsel on record for respondents 3, 6 and 7 (private respondents) are before me. To be noted, respondents 4 and 5 (private respondents) have been duly served, names are shown in the cause list but there is no representation. I am informed by the Registry that no counsel has entered appearance on behalf of respondents 4 and 5.
3. Be that as it may, a perusal of case file placed before me brings to light that a hearing notice dated 11.09.2015 (fixing the hearing on 07.10.2015 at 3.00 p.m.,) issued by the 3/15 https://www.mhc.tn.gov.in/judis WP(MD) No.18060 of 2015 second respondent in O.A.No.18 of 2014 being an application under Section 63(e) of 'The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' (hereinafter 'TN HR&CE Act' for the sake of convenience and clarity) has been called in question.
4. It is further to be noted that the aforementioned 'O.A.No.18 of 2014' (hereinafter 'said OA' for the sake of convenience and clarity) has been filed by respondents 3 to 7 (petitioners 1 to 5) and the writ petitioner is respondent No.1 therein.
5. The primary ground on which the aforementioned '11.09.2015 notice bearing reference O.A. 18/2014/C1' (hereinafter 'impugned notice' for the sake of convenience and clarity) is assailed is said OA was earlier dismissed (apparently for default on 31.03.2015) but the impugned notice has been issued without notice to the writ petitioner about restoration. Counter affidavit filed by the State avers that a restoration application was filed and restoration was ordered on 09.09.2015. Learned counsel for writ petitioner submits that he has not been put on notice in the restoration application.4/15
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6. In the light of the aforementioned controversy, learned State Counsel to produce the records in the next listing. List one week hence.
7. List on 20.12.2021.'
3. This order has to be read in conjunction with and in continuation of aforementioned proceedings. In other words, the aforementioned two proceedings shall be read as an integral part and parcel of this order.
4. Pursuant to proceedings dated 13.12.2021, learned State Counsel produced the records today.
5. A perusal of the records reveals that an interlocutory application for restoring said O.A which was dismissed for default on 31.03.2015 has been filed. This restoration application has been filed on 29.04.2015. The affidavit and petition qua restoration application are as follows: 5/15
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6. The aforementioned earlier proceedings dated 12.11.2021 and 13.12.2021 capture the crux and gravamen of the lis and the trajectory the matter has taken thus far. To be noted, it is necessary to make it clear that short forms and short references made in the previous listing continue to be used in the instant order also.
7. The only complaint is of the writ petitioner is, he was not put on notice about the restoration application. In the case on hand, the files do not demonstrate that the writ petitioner was put on notice. Considering the nature of matter and considering that it is already more than half a decade old, I deem it appropriate to consider the restoration application in this writ petition itself as moulding the relief is not alien to writ jurisdiction.
8. A careful perusal of the restoration application makes it clear that the only reason stated in the application is counsel before the Tribunal i.e., the second respondent has noted the date wrongly and therefore, the matter was not represented on 31.03.2015. It is also averred that it is neither wilful nor wanton.
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9. Learned counsel for writ petitioner submits that the ground for restoration being an error on the part of the counsel, decision qua restoration application on merits by this Court is left to the wisdom of this Court.
10. I find no reason as to why the restoration application should not be allowed as it is after all a counsel error in noting down a date. To be noted, a copy of the restoration application and the petition have been furnished to the learned counsel for petitioner.
11. In the light of narrative thus far, the impugned hearing notice dated 11.09.2015 is set aside as the same has been issued without notice qua restoration petition/without restoration.
12. In exercise of my powers in writ jurisdiction, I deem it appropriate to allow the restoration application here and now i.e., by this order. The reason is the ground on which the restoration application has been filed is counsel's error and the second reason is it has been filed within 30 days from the date of dismissal for default on 31.03.2015 as restoration application has been filed on 29.04.2015. This means that O.A.No.18 of 2021, for which hearing notice which has been issued has been set aside by 12/15 https://www.mhc.tn.gov.in/judis WP(MD) No.18060 of 2015 this order, stands resuscitated by this order.
13. The second respondent shall now proceed with O.A.No.18 of 2014 on its file on merits and in accordance with law and conclude the same as expeditiously as his official business would permit and in any event, within six months from today i.e., on or before 20.06.2022.
14. With the above observations, the captioned Writ Petition is disposed of. There shall be no order as to costs. Consequently, captioned Miscellaneous Petition is also disposed of as closed.
20.12.2021 ssb Index : Yes/No Internet : Yes /No Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.13/15
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1.The Commissioner, Hindu Religious & Charitable Endowment, Chennai.
2.The Joint Commissioner, Hindu Religious & Charitable Endowment, Madurai Division, Madurai.14/15
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