Madras High Court
Arulmigu Thiruvatteeswarar ... vs P.Umapathy on 5 October, 2021
C.R.P.(NPD).No.374 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.374 of 2017
Arulmigu Thiruvatteeswarar Thirukkoil,
Rep. By its Executive Officer,
having office at the temple premises at Triplicane,
Chennai 600 005. .. Petitioner
Vs.
1.P.Umapathy
2.The Zonal Officer, Corporation of Chennai,
XII Zone, Alandur,
Chennai 600 016. .. Respondents
Prayer: Civil Revision Petition filed under Section 115 of C.P.C., to set
aside the fair and decreetal order dated 30.10.2015 made in I.A.No.851
of 2014 in O.S.No.632 of 2006 on the file of the Additional District
Munsif Court, Alandur.
For Petitioner : Mr.D.R.Sivakumar
for M/s.S.D.Ramalingam
For Respondents : Mr.P.Thiagarajan (For R1)
M/s.R.Gopinath (For R2)
1/10
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.374 of 2017
ORDER
(The matter is heard through 'video conferencing/hybrid mode')
This Civil Revision Petition is filed to set aside the fair and
decreetal order dated 30.10.2015 made in I.A.No.851 of 2014 in
O.S.No.632 of 2006 on the file of the Additional District Munsif,
Alandur.
2.The petitioner/plaintiff filed O.S.No.632 of 2006 on the file of
the Additional District Munsif Court, Alandur, for delivery of possession,
damages, permanent injunction and mandatory injunction, against the
respondents. The 1st respondent filed written statement and contested the
suit. The suit was dismissed for default on 19.03.2013. The petitioner
filed I.A.No.851 of 2014 to condone the delay of 303 days in filing the
petition to restore the suit. According to the petitioner, the present suit
was clubbed with O.S.No.630 of 2006 for joint trial. At that stage, the 2nd
defendant in O.S.No.630 of 2006 died. The petitioner took steps for
impleading the legal heirs of the deceased 2nd defendant in O.S.No.630 of
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C.R.P.(NPD).No.374 of 2017
2006. While so, the present suit was dismissed for non-appearance of the
petitioner. According to the petitioner, in view of pendency of interim
application for impleading the legal heirs of the 2nd defendant in
O.S.No.630 of 2006, the petitioner was under the impression that the
present suit will be taken up for trial after disposal of the said I.A., filed
for impleading the legal heirs of the 2nd defendant in O.S.No.630 of 2006.
The non-appearance of the petitioner and delay in filing the I.A. to
restore the suit is neither wilful nor wanton and prayed for allowing the
I.A.
3.Before the Trial Court, the 1st respondent remained exparte in
I.A.No.851 of 2014, filed to condone the delay in filing the petition to
restore the suit. The counsel for the 2nd respondent contended that only to
drag on the proceedings, the petitioner has come out with the present I.A.
and petition filed by the petitioner is not maintainable and prayed to
dismiss the said I.A.
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C.R.P.(NPD).No.374 of 2017
4.The learned Judge, considering the averments in the affidavit and
materials on record and judgment of the Hon'ble Apex Court, dismissed
the I.A., holding that the reason given by the petitioner is not sufficient.
5.Against the said order dated 30.10.2015 made in I.A.No.851 of
2014 in O.S.No.632 of 2006, the petitioner has come out with the present
Civil Revision Petition.
6.The learned counsel appearing for the petitioner submitted that
there is no limitation for filing suit for recovery of properties belonging
to the religious institution. As per the amended Section 109 of the Tamil
Nadu Hindu Religious and Charitable Endowments Act, 1959, the
limitation Act is not applicable to the application filed to set aside the
exparte order of dismissal. The idol of the temple is minor and it is for
the Court to protect the interest of religious institution. The learned
counsel, in support of his contention, relied on the following judgments:
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C.R.P.(NPD).No.374 of 2017
(i) 1996 1 LW 231 [Sri.Madhavaperumal Devasthanam,
Mylapore Vs. Dhanalakshmi and others]:
“4. It should not be forgotten that an idol is in the
position of a minor. It has been held in Bishwanath Vs. Radha
Ballabhji (AIR 1967 SC 1044) that an idol is in the position of a
minor and when the person representing it leaves it in lurch, a
person interest in the worship of the idol can certainly be clothed
with an ad hoc power of representation to protect its interest.
The principle would certainly apply in a case where the persons
in management of a temple have not been as diligent as is
necessary in conducting a litigation on behalf of the temple. The
court can taken notice of the fact that Executive Officers who are
put in charge of the temple are changed periodically and in
many a case, they do not get fully acquainted with the history or
affairs of the temple. If there is some slackness on the part of the
Executive Officer or even the trustees of the temple, it is the duty
of the Court to see that the idol does not suffer thereby. Courts
should be astute to protect the interests of an idol in any
litigation.”
(ii) (2004) 1 MLJ 27 [K.S.Selvaraj and others Vs. Sree
Komaleeswarar Devasthanam]:
“12.In the case of Sankaralingam Vs. V.RAhuraman,
(2002) 3 C.T.C. 13, the four principles governing the
condonation of delay under Section 5 of the Limitation Act and
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C.R.P.(NPD).No.374 of 2017
its aspects were formulated as below:
“(i) Whether petitioner has satisfactorily proved
sufficient cause for delay?
(ii) Whether petitioner is guilty of negligence or inaction
or want of bona fide?
(iii) Whether valuable right that has accrued to other
party is likely to be defeated by condonation of delay? and
(iv) Whether petitioner has arguable points on facts and
law?”
13.Considering the above four aspects, the delay has
been proved in-as-much as the machinery to protect the interests
of the idol was inactive and by having a pragmatic approach, as
the idol being compared with a minor, the Courts have an
inherent duty to protect its interest, especially when the persons
appointed for protecting the interests act against the same.”
7.The learned counsel appearing for both the respondents
separately contended that the reason given by the petitioner to condone
the delay of 303 days is not sufficient and valid. The intention of the
petitioner is not bonafide. Only to drag on the proceedings, the petitioner
filed the present I.A. and prayed for dismissal of the Civil Revision
Petition.
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C.R.P.(NPD).No.374 of 2017
8.Heard the learned counsel appearing for the petitioner, 1st
respondent as well as the 2nd respondent and perused the entire materials
on record.
9.It is the contention of the learned counsel appearing for the
petitioner that the present suit and O.S.No.630 of 2006 were ordered to
be tried together and posted for trial not in the list. The 2nd defendant in
O.S.No.630 of 2006 died and petitioner has taken steps to implead the
legal heirs of the 2nd defendant. While the said application was pending,
the present suit was taken up and dismissed for default. The learned
Judge has not considered this contention of the petitioner while deciding
the I.A. The petitioner being a religious institution, filed the said suit for
delivery of possession and damages of the property belonging to them.
10.It is well settled that application to condone the delay must be
considered liberally and parties should not be shut out at the threshold
itself. The party must be given an opportunity to putforth their case on
merits. The 1st respondent remained exparte before the learned Judge in
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C.R.P.(NPD).No.374 of 2017
the present I.A., to condone the delay in filing the petition to restore the
suit. He did not contest the said I.A. Considering the above materials, the
fact that the petitioner is religious institution and the judgments relied on
by the learned counsel appearing for the petitioner, this Court is of the
view that opportunity must be given to the petitioner to putforth their
case on merits. For the above reason, the order of the learned Judge dated
30.10.2015, made in I.A.No.851 of 2014 is set aside and the said
I.A.No.851 of 2014 is ordered. The learned Additional District Munsif,
Alandur is directed to number the I.A. filed for restoration of suit and
pass orders on merits and in accordance with law.
With the above direction, this Civil Revision Petition is allowed.
No costs.
05.10.2021
Index :: Yes/No
gsa
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.374 of 2017
To
1.The Additional District Munsif,
Alandur.
2.The Zonal Officer,
Corporation of Chennai,
XII Zone, Alandur,
Chennai 600 016.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.374 of 2017
V.M.VELUMANI, J.
gsa
C.R.P.(NPD)No.374 of 2017
05.10.2021
https://www.mhc.tn.gov.in/judis/
