Madras High Court
Sivarama Chettiar vs Arulmighu Sathyanatha Swamy ... on 10 March, 2022
C.R.P(PD)No.1836 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2022
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Civil Revision Petition (PD) No.1836 of 2016
Arulmighu Sathiyanatha Swami Temple,
Thirukalimedu Village,
Kanchipuram Taluk,
rep. by its Trustees,
1. Sivarama Chettiar
2. T.Kuppusamy Chettiar
3. C.Kumaravel Chettiar ... Petitioners
Vs.
1. Arulmighu Sathyanatha Swamy Temple,
rep. by its Executive Officer,
having office at Arulmighu Katchapeswarar Temple,
Kanchipuram.
2. K.S.Ramalingam Chettiar
3. S.Thanigaivelu … Respondents
This Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 08.09.2015 in
I.A.No.474 of 2014 in O.S.No.62 of 2011 on the file of the Additional
District Munsif Court, Kanchipuram.
Page No.1 of 13
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
For Petitioners : Mr.R.Mubarak Basha
For Respondent 1 : Dr.S.Suriya,
Additional Govt. Pleader
For Respondents 2 & 3 : No Appearance
ORDER
This Civil Revision Petition has been filed by the petitioners
challenging the fair and decreetal order passed by the learned Additional
District Munsif, Kanchipuram in I.A.No.474 of 2014 in O.S.No.62 of 2011
dated 08.09.2015.
2. The revision petitioners are the proposed third defendants. The suit
in O.S.No.62 of 2011 was filed by the first respondents/plaintiff, for a decree
of permanent injunction against the 2 & 3 respondents/1 & 2 defendants
restraining them and their men and agents from in any way putting up any
construction in the suit property. After the filing of the suit, third
respondent/second defendant as well as the second respondent/first defendant
have filed their written statements on 04.11.2011 and 16.12.2011
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
respectively, denying the averments made by the first respondent/plaintiff.
3. While the suit is pending, the revision petitioners/proposed third
defendants have filed an Interlocutory Application in I.A.No.474 of 2014
under Order I Rule 10 of CPC r/w. Section 151 of C.P.C., seeking to implead
the petitioners as third defendants in the suit.
4. The learned counsel for the revision petitioners/proposed third
defendants submitted that the second respondent/first defendant
Mr.K.S.Ramalinga Chettiyar was one among the three trustees, earlier elected
by the Velala Chettiar Community of the Chetti Street, Kanchipuram. He was
the last among them and he had resigned and the Velala Chettiar community
of Chetti Street, Little Kanchipuram elected the present revision petitioners 1
to 3 as Executive Trustees in the General Body meeting held on 04.09.2011
and the same was mentioned in the affidavit filed in support of I.A.No.474 of
2014.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
5. He further submitted that the second respondent/first defendant
remained ex-parte. Moreover, these revision petitioners are elected as
trustees by the General Body of the Velala Chettiar Community of Chetti
Street, Kanchipuram. Further, the learned counsel relied on a common order
dated 28.07.2009 passed by this Court in W.P.Nos.24203 of 2008 and 6282
of 2009. The Writ Petition No.24203 of 2008 has been filed, challenging the
appointment of a fit person in the place of the first defendant and the relevant
paragraph of the order is extracted hereunder:
7. As far as the appointment of the fit person is concerned, as per
the counter affidavit filed by the official respondents, in paragraph 8,
certain irregularities committed by the petitioner as a defacto trustee
have been mentioned and according to the learned counsel basing on
this alone the fit person was appointed. Apart from this, according to
the learned counsel, under Section 45(1) a fit person can be appointed.
However, the learned counsel for the respondents also admits that this
order appointing the fit person dated 27.12.2008 was passed without
providing an opportunity to the petitioner. When admittedly basing on
certain alleged irregularities said to have been committed by the
petitioner, a fit person has been appointed in the place of the petitioner,
certainly this order is not a simplicitor appointing a fit person, but it
causes stigma to the petitioner. When an order has been passed causing
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
stigma to an individual, certainly the said officer or this individual has a
right to be heard before passing of the said order. Apart from this, even
according to the learned counsel appearing for the respondent
department, on appointment of the fit person, the petitioner will lose his
trusteeship though he is a defacto trustee. Under such circumstances,
since the order which is under challenge is causing stigma to the
petitioner that cannot be passed without providing an opportunity to the
petitioner. Consequently, the order dated 23.09.2008
by which the fit person has been appointed is set aside. However, liberty
is given to the respondents to pass an order after providing an
opportunity to the petitioner. With this observation, the writ petition is
disposed of.
and the Writ Petition No.6285 of 2009 has been filed, challenging the
appointment of executive officer, in which it is observed that the revision
petitioner Mr.K.S.Ramalinga Chettiar, the first defendant in the suit is only a
defacto trustee and not a regular selected trustee and this defacto trustee can
hold the office till the regular selection is made the community members.
Apart from this, as per Section 45(3) of the HR&CE Act, even if the
appointment is made for an Executive Officer, the second respondent/first
defendant is not losing his post as a trustee. Since, under the said scheme,
the duties and powers to be discharged by the executive officer as well as the
Trustee can be defined only by the Commissioner. Further, the judgment of
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
this Court in W.P.Nos.15468 and 15469 of 2003 dated 23.07.2008 has held
that when the trustees have been holding the office, the appointment of the
Executive Officer has been upheld. For better appreciation, the relevant
portion is extracted hereunder:
10. As per the judgment of this Court in W.P.Nos.15468
and 15469 of 2003 dated 23.07.2004 also even when the trustees
have been holding the office, the appointment of
the Executive Officer has been upheld. As such in my opinion, the
impugned order by which the Executive Officer is appointed is
well within the rules. Consequently, the impugned order is
sustained and writ petition No.6282 of 2009 is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
In the result, the Writ Petition No.24203 of 2008, filed, challenging the
appointment of a fit person was allowed and the Writ Petition No.6282 of
2009, filed, challenging the appointment of an Executive Officer was
declined by going into the Scheme framed by this Court in A.S.No.319 of
1920 dated 08.02.1922.
6. Subsequently, the revision petitioners/proposed third defendants
filed the Writ Appeal No.1155 of 2021 against the order dated 28.07.2009
made in W.P.No.6282 of 2009.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
7. The learned Additional Government Pleader appearing for the first
respondent submitted that if this Civil Revision Petition is allowed, then, it
will cause delay in disposing the suit, which is of the year 2011.
8. Heard the learned counsel for the petitioners and the learned counsel
appearing for the first respondent.
9. It is an admitted fact that the suit was filed in the year 2011 and
thereafter, the Interlocutory Application in I.A.No.474 of 2014 in O.S.No.62
of 2011 was filed by the revision petitioners/proposed third respondent in the
year 2014. Further, the revision petitioners/proposed third defendants were
elected as Executive Trustees on 04.09.2011 and the learned Additional
District Munsif Judge, in the order dated 08.09.2015, held that the revision
petitioners/proposed third defendants are not proper and necessary party for
the adjudication of this case.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
10. The fact remains that, in the suit, the first defendant was
Mr.K.S.Ramalinga Chettiyar, who was the trustee of Arulmighu Sathiyanatha
Swami Temple and after his resignation, the revision petitioners/proposed
third defendants were elected as Executive Trustees by the Vellala Chettiyar
Community on 04.09.2011. So, the revision petitioners/proposed third
defendants wanted to get themselves impleaded in the place of
Mr.K.S.Ramalinga Chettiyar, who is no more and not the trustee at present.
Hence, this Court finds that the application filed by the revision petitioners to
implead them as third defendants in the suit is valid, proper and sustainable
in law and there will be no prejudice caused to the respondent/plaintiff, if, the
revision petitioners are impleaded as the third defendants in the suit.
11. The Hon'ble Apex Court in 2014(1) CTC 763 held that the
Executive Officer, who is the respondent in the revision petition cannot take
over the management and administration of the temple for an indefinite
period and as per the above judgment of the Hon'ble Apex Court, the trial
Court ought to have allowed the impleading application filed by the revision
petitioners/proposed third defendants.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
12. Further, the revision petitioners/proposed third defendants have
brought to the notice of the first respondent/plaintiff about their appointment
as trustess of the first respondent's temple, despite, no steps have been taken
to implead the revision petitioners as the third defendants in the suit.
13. Subsequently, the revision petitioners/proposed third defendants
have filed another suit in O.S.No.119 of 2012 for the following relief:
(i) declaring that the temple is a denominational institution of Velala
Chetti Community of Chetty Street, Kanchipuram.
(ii) declaring the appointment of the fourth defendant as Executive
Officer of the plaintiff's temple under Section 45(1) of Act 22/1959 by the
second defendant without jurisdiction. Hence order of the first defendant
passed in N.K.No.7792/2007/A2, dated 02.05.2011 is null and void.
14. If, the revision petitioners are not permitted to participate in the
above case, the valuable right of the revision petitioners community will be
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
deprived, if, any order is passed in the above suit in O.S.No.62 of 2011
against these revision petitioners it will have a bearing in O.S.No.119 of
2012.
15. In view of the above facts and circumstances of the case and the
foregoing reasons, the order passed by the learned Additional District
Munsif, Kanchipuram in I.A.No.474 of 2014 in O.S.No.62 of 2011 is liable
to be set aside. Accordingly, the same is set aside. In the result, the Civil
Revision Petition stands allowed. No costs. Consequently, connected
C.M.P.No.9643 of 2016 is closed.
16. Since, the suit is of the year 2011, the Additional District Munsif
Court, Kanchipuram is directed to dispose of the suit as expeditiously as
possible preferably within a period of 12 months from the date of receipt of a
copy of this order.
10.03.2022
Index : Yes/No
Speaking Order : Yes/No
vm
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
To:
The Additional District Munsif Court,
Kanchipuram.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
J.SATHYA NARAYANA PRASAD,J.
vm
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1836 of 2016
C.R.P(PD)No.1836 of 2016
10.03.2022
https://www.mhc.tn.gov.in/judis
