Madras High Court
D.Jothi vs Sri Vengeeswarar Alagar Perumal
C.R.P. (PD) Nos.102 and 103 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.06.2022
Delivered on : 07.07.2022
CORAM :
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.R.P. (PD) Nos.102 & 103 of 2020
and
C.M.P.No.646 of 2020
1.D.Jothi
2.J.Rajendaran ... Revision Petitioners
in both petitions
Vs.
1.Sri Vengeeswarar Alagar Perumal
and Nagathamman Koil Devasthanam
Represented by its Hereditary Trustee
P. Chamundeeswari
Having office at
Saidapet Road, Vadapalani,
Chennai – 600 026.
Kamallammal (died) ... Respondents
in both petitions
Prayer : Civil Revision Petitions in C.R.P. (PD) Nos.102 and 103 of 2020
filed under Article 227 of the Constitution of India, against the fair and
decretal orders, dated 04.11.2019, in I.A.Nos.3 and 2 of 2019 respectively
Page 1 of
https://www.mhc.tn.gov.in/judis 19
C.R.P. (PD) Nos.102 and 103 of 2020
in O.S.No.2094 of 2004 on the file of the III Assistant City Civil Court,
Chennai.
For Petitioners : Mr.P.B.Ramanujam
in both petitions
For Respondent : Mr.PL.Narayanan
in both petitions
COMMON ORDER
These Civil Revision Petitions have been filed against the common order, dated 04.11.2019, in I.A.Nos.2 and 3 of 2019 in O.S.No.2094 of 2004 on the file of the III Assistant City Civil Court, Chennai, dismissing the applications to reject the plaint and to strike off the plaint in O.S.No.2094 of 2004.
2.For the sake of convenience, the parties shall hereinafter be referred to by their rank before the trial Court.
3.The suit was originally filed by Sri Vengeeswarar Alagar Perumal and Nagathamman Koil Devasthanam, represented by its Hereditary Trustee G.Prem Anand, in the year 2004, as against one Kamalammal (1 st Page 2 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 defendant) and the 2nd defendant (daughter of the 1st defendant) for recovery of possession of the suit property after removing the superstructure and for recovery of a sum of Rs.4,850/- towards arrears of rent and for costs.
4.The 3rd defendant, who is the subsequent purchaser from the 1st defendant and his husband C.H.John, impleaded himself as party to the suit and filed his written statement and took a stand that the lease rights granted by the Government to Sri Vengeeswarar Temple alias Vyagrapureeswarar Temple expired in the year 1976 itself and therefore, the said Alagar Perumal Temple is not the owner of the suit property and therefore, the Temple cannot file a suit against the defendants for eviction or for recovery of arrears; moreover, the suit property is a 'Riotwari' land, which stands in the name of Kamalammal and when the said Kamalammal and her husband have sold the land and superstructure to the 3rd defendant vide registered sale deeds and when the 3rd defendant has not at all recognized the plaintiff as owner, the suit is not maintainable. The 2nd defendant has also taken a similar stand to that of the 3rd defendant.
Page 3 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020
5.While that being the case, the 2nd and 3rd defendants took out applications in I.A.Nos.2 and 3 of 2019 to reject the plaint and to strike off the plaint in the suit.
6.The case of the 2nd and 3rd defendants in the impugned applications is as follows :
➢ The permission given to Venkeeshwarar Temple alias Vyagrapureeswarar Temple for leasing out the suit property expired in the year 1976 and therefore, the plaintiff/Temple has no power to lease out the suit property, nor has power to evict the defendants or collect rents from the tenants.
➢ The Temple is now represented by one P.Chamundeeswari, who is none other than the wife of G.Prem Anand who filed the suit, is not vested with any powers to maintain the suit as her husband G.Prem Anand was thrown out of his position by the HR & CE Department for various irregularities committed by him. ➢ The said P.Chamundeeswari, without obtaining any sanction from the Department, has stepped into the shoes of her husband and has taken Page 4 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 charge of the Temple administration by herself, which is illegal, and has got herself impleaded in the suit, which by itself is not maintainable.
➢ The HR & CE Department is yet to appoint an Executive Officer to take charge of the Temple.
➢ The said P.Chamundeeswari has no locus standi to bring out the suit and therefore, the suit, if taken for trial, will be an abuse of process of Court, since the suit does not have a cause of action at all. ➢ Therefore, the plaint is liable to be rejected and struck off.
7.The said P.Chamundeeswari filed her counter affidavit and took a stand as follows :
➢ The removal of G.Prem Anand, original Hereditary Trustee, has been challenged before the High Court of Madras and the same is pending. ➢ After his removal, she has taken charge of the Temple and she has intimated the same to the authorities of the HR & CE Department. ➢ She has filed an application to substitute herself in the place of her husband in E.P.No.280 of 2010 and the same was also allowed. ➢ As per Section 54 of the HR & CE Act, when an Hereditary Trustee Page 5 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 renounces the office, the next in the line of succession, is automatically entitled to assume charge, even without obtaining permission from the Department.
➢ The communication sent by the HR & CE Department, dated 30.05.2017, and the order passed by this Court in W.P.No.35242 of 2015 are sufficient to disprove the case of the defendants 2 and 3, and therefore, the applications are liable to be dismissed.
8.The trial Court, taking into consideration the rival submissions, by the impugned common order, dated 04.11.2019, dismissed the applications with exemplary costs.
9.Challenging the order of dismissal, the defendants 2 and 3 have filed the present revision petitions before this Court.
10.The learned counsel appearing for the petitioners/defendants 2 and 3, made the following submissions before this Court :
➢ The said P.Chamundeeswari, who is now contesting the suit filed by the erstwhile Hereditary Trustee G.Prem Anand, has no locus standi Page 6 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 to maintain the suit, inasmuch as she has not been recognized by the HR & CE Department as a Hereditary Trustee.
➢ Even the erstwhile Hereditary Trustee G.Prem Anand was thrown out of his position for misappropriation committed by him. ➢ On account of the irregularities found out during inspection, the Commissioner of HR & CE Department, after conducting a detailed enquiry and after giving sufficient opportunities to the said P.Chamundeeswari, has appointed an Executive Officer to take charge of the administration of the Temple, by his proceedings dated 06.09.2019, wherein, it has been stated that the said P.Chamundeeswari can only act along with the Executive Officer.
Therefore, the said P.Chamundeeswari cannot file or maintain any suit for the Temple.
➢ Moreover, the challenge made to the said proceedings of the Commissioner of HR & CE Department in W.P.No.28960 of 2019, was also dismissed by this Court.
➢ In any event, the HR & CE Department or the Executive Officer alone has the right to evict the tenants, whereas, the said P.Chamundeeswari has no locus standi to question the tenants. Page 7 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 Therefore, the suit itself is not maintainable and therefore, the plaint is liable to rejected and struck off.
11.Per contra, the learned counsel appearing for the respondent/plaintiff made the following submissions before this Court :
➢ There was no impediment from the side of the defendants at the time of institution of the suit.
➢ As per Section 54 of the HR & CE Act, any person next in the line of succession is automatically entitled to assume charge of Hereditary Trustee, even without obtaining permission from the Department. ➢ When the cause of action remains as it is, where the defendants 1 and 2 have committed default of payment of rent, the plaint cannot be merely rejected or struck off.
➢ This Court, in Prem Anand v. The Commissioner, Hindu Religious and Charitable Endowments Madras and another [W.P.No.3291 of 1989 reported in 1990 (1) LW Page 144], has held that there is no necessity, whatsoever, for the next Hereditary Trustee to make an application for being appointed under the Act, because a fit person was already in charge of the administration of the Temple. Therefore, Page 8 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 the assumption of charge by the successor of Prem Anand, viz., P.Chamundeeswari, is lawful and there is no material to strike off the plaint.
➢ Even the Commissioner, in his proceedings dated 06.09.2019, has stated that the Executive Officer shall act along with the Hereditary Trustee in managing the affairs of the Temple.
➢ The writ appeal in W.A.No.362 of 2020 filed against the writ petition in W.P.No.28960 of 2019 challenging the proceedings of the Commissioner, was allowed by a Division Bench of this Court and therefore, the learned counsel for the defendants cannot rely upon the order of this Court made in W.P.No.28960 of 2019. ➢ The impugned applications have been filed after a lapse of 15 years from the date of institution of the suit, only to drag on the proceedings, therefore, the trial Court has rightly dismissed the applications with exemplary costs.
12.Replying to the submissions made by the learned counsel for the plaintiff, the learned counsel for the defendants 2 and 3 submitted that the writ appeal was allowed only on the ground of availability of alternative Page 9 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 remedy under Section 114 of the HR & CE Act and not on merits, however, it is not known as to whether the alternative remedy was worked out or not, whereas, the learned Single Judge has dealt with the issue in detail in W.P.No.28960 of 2019 on merits and rendered a finding that the order of the Commissioner appointing an Executive Officer, does not warrant interference. The learned counsel further contended that the 3rd defendant impleaded himself only in the year 2009 and therefore, there is no question of prolongation on his part, whereas, in fact, it was the plaintiff who did not issue the receipts and prolonged the matter.
13.In response to the contentions of the learned counsel for the defendants 2 and 3, the learned counsel for the plaintiff contended that there is no order of the HR & CE Department or of the Court, whatsoever, removing the said P.Chamundeeswari from the position of Hereditary Trustee, even after coming to know that she is managing the affairs of the Temple, nor is she thrown away from the post for her alleged illegal assumption of charge. Very particularly, the Executive Officer has also been appointed only to act along with the Hereditary Trustee, which itself recognizes her position in the management and administration of the Page 10 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 Temple.
14.Replying to the said contentions, the learned counsel for the defendants 2 and 3 submitted that there is no specific order to show that the said P.Chamundeeswari has right to file a suit. The learned counsel further submitted that the defendants need not prove their genuineness to a third party, who is not authorized to question them. Moreover, the provisions of Section 54 cannot be applied to a person who is suspended or thrown away from his position.
15.Heard the learned counsel on either side and perused the entire materials available on record.
16.The suit is for eviction of tenants and recovery of arrears of rent from them. On a perusal of the impugned order, it is seen that, pending trial, the Hereditary Trustee of the Temple G.Prem Anand, who filed the suit, was removed from the post on account of certain irregularities committed by him. Thereafter, his wife P.Chamundeeswari got herself impleaded in the suit in the year 2018. After such impleadment, the suit Page 11 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 came up for trial and P.W.1 was examined on 29.07.2019 and exhibits were marked on their side. As the defendants were not ready to cross- examine P.W.1, the evidence of P.W.1 was closed on 27.08.2019. At that juncture, the defendants have filed the impugned applications to reject and strike off the plaint on the ground that the said P.Chamundeeswari has no locus standi to sue against them.
17.It is further stated in the impugned order that the defendants 2 and 3 have produced two documents obtained under RTI Act, both dated 09.05.2019, wherein, it is stated that the said Prem Anand was removed from the post of Hereditary Trustee and the Temple has sent letters to the Department for appointment of Executive Officer; no order was passed by the HR & CE Department recognizing P.Chamundeeswari as Hereditary Trustee of the Temple. However, the said P.Chamundeeswari was impleaded as Hereditary Trustee in the suit in the place of Prem Anand, by order dated 30.01.2018, but, from 30.01.2018 till the filing of the impugned applications on 28.08.2019, the defendants have not agitated against her impleadment. When the evidence of P.W.1 is now on record, the defendants 2 and 3, without attempting to cross-examine her to disprove Page 12 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 her case, have come up with these applications, which is an abuse of process of law.
18.In the order, dated 20.12.2019, made in W.P.No.28960 of 2019, challenging the appointment of Executive Officer, a learned Single Judge of this Court has held that the said P.Chamundeeswari had simply walked into the office of the Hereditary Trustee, but her entitlement should be declared by the competent authorities. The learned Single Judge has further held that, though the judgment in the case of Prem Anand (supra) holds that the next person in line of succession is entitled to succeed to the office, by which principle, the said Prem Anand assumed office, the said judgment is distinguishable on facts, for the reason that it is not known as to whether the said P.Chamundeeswari has children and if she had children, then an enquiry ought to have been conducted for choosing the fit person to hold the office of the Hereditary Trustee after Prem Anand. Therefore, it was held that the continuance of the said P.Chamundeeswari in office is to be prevented and prohibited and thus, found that the proceedings of the Commissioner appointing an Executive Officer to manage the affairs of the Temple, warrants no interference.
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19.However, it is brought to the notice of this Court that the aforesaid order of the learned Single Judge was taken on appeal in W.A.No.362 of 2020 and in the said Writ Appeal, the Hon'ble Division Bench of this Court, vide judgment dated 29.06.2021, has set aside the order of the learned Single Judge. It can be seen that, though the writ appeal has been allowed on the ground of availability of an alternative remedy to the writ petitioner, it is specifically stated in the judgment that the order of the learned Single Judge along with the findings rendered, stands set aside. It is not known as to whether the alternative remedy was invoked or whether any challenge has been made to the judgment in the Writ Appeal. Therefore, as of now, the findings of the learned Single Judge, including the ones as against the said P.Chamundeeswari, cannot be relied upon.
20.Moreover, on a perusal of the proceedings of the Commissioner, dated 06.09.2019, it can be noticed that, even after discussing in detail about the misappropriation and irregularities committed by the erstwhile Hereditary Trustee G.Prem Anand and his wife P.Chamundeeswari, the Commissioner has not proceeded to remove the said P.Chamundeeswari Page 14 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 from the position, whereas, has stated that the Executive Officer so appointed shall act along with the Hereditary Trustee in managing the affairs of the Temple.
21.Anyhow, the suit has been filed by the Temple in the year 2004 as against the tenants for eviction and for arrears of rent. The 3rd defendant entered into the picture in the year 2009 and the defendants 2 and 3 took a main defence that the Temple is not the landlord of the suit property, however, they have not repudiated the locus of the erstwhile Hereditary Trustee G.Prem Anand to file the suit. Admittedly, the said G.Prem Anand was removed from the post of Hereditary Trustee in the year 2015. Thereafter, his wife P.Chamundeeswari, claiming herself to be the successor of G.Prem Anand, stepped into his shoes and took charge of the Temple administration. Moreover, she filed petition to implead herself in the suit in the place of G.Prem Anand in the year 2018 and the petition, after contest, was allowed on 30.01.2018. The defendants 2 and 3 have not chosen to take the order on appeal or revision. It is only thereafter the Commissioner issued an order, dated 06.09.2019, appointing an Executive Officer to administer the Temple, that too, to act along with the Hereditary Trustee. Page 15 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 Immediately, the defendants 2 and 3 have taken out the impugned applications to reject the plaint and to strike off the plaint. Whatever be the case, the suit has been filed by the Temple and not by its Hereditary Trustee in his individual capacity. It is clear that, pending the suit, there has been a change of Administrator of the Temple owing to certain irregularities. In any event, the cause of action has not ceased to exist nor is there any change in the character of the suit. To reject a plaint under Order VII Rule 11(a) of the Code of Civil Procedure, the plaint should not disclose a cause of action. Whereas, in the instant case on hand, the cause of action, which is the alleged default committed by the defendants in payment of rent, still continues and when the suit has been filed by the Temple represented by its Hereditary Trustee, much before the appointment of Executive Officer, mere change in the internal Administrator of the Temple for one reason or other, does not in any way affect the character or cause of action of the suit rendering it to be rejected. Even in the event of the suit being decreed, it is very well open to the defendants to deposit the arrears of rent before the Court and the same can be ordered to be withdrawn by the authority competent at the time of disposal of the suit, since it is not known as to whether the order of the Commissioner has become final. On the other Page 16 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020 hand, if the defence is to repudiate the very ownership of the Temple itself, it is very well open to the defendants to prove their case by adducing oral and documentary evidence, especially when the trial has commenced in the suit and P.W.1 has been examined. Whereas, without adopting such a proper remedy, the defendants 2 and 3 have filed these vexatious applications on frivolous grounds, thereby not allowing the suit to reach its logical end, which attitude cannot be entertained. Insofar as the application to strike off the plaint under Order VI Rule 16 of Code of Civil Procedure is concerned, as the post of Hereditary Trustee has not been abolished till date and the said P.Chamundeeswari is still not thrown out of office, there cannot be any abuse of process of Court and it is the Temple who has sued the defendants for the alleged default committed by them, therefore, the defendants are liable to defend the suit. The defendants have not made out any ground under Order VI Rule 16 of CPC to strike off the plaint. Therefore, this Court does not find any illegality, infirmity or perversity in the impugned order of the trial Court, dismissing the impugned applications. Page 17 of https://www.mhc.tn.gov.in/judis 19 C.R.P. (PD) Nos.102 and 103 of 2020
22.In fine, these Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petition is closed.
23.Since the suit is of the year 2004 and trial has also commenced, the trial Court is directed to dispose the suit within a period of six months from the date of receipt of a copy of this order.
07.07.2022
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
The III Assistant Judge,
City Civil Court,
Chennai.
S. KANNAMMAL, J.
Page 18 of
https://www.mhc.tn.gov.in/judis 19
C.R.P. (PD) Nos.102 and 103 of 2020
mkn
Common Order in
C.R.P. (PD) Nos.102 & 103 of 2020
07.07.2022
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