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ARULMIHU KACHAPAESWARAR DEVASTHANAM versus SRI KACHAPESWARASAMY NAGAR COLONY

High Court of Madras

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Arulmihu Kachapaeswarar Devasthanam v. Sri Kachapeswarasamy Nagar Colony - S.A.No.273 of 1993 [2002] RD-TN 887 (15 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 15/11/2002

CORAM

THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN

S.A.No.273 of 1993

and

C.M.P.No.13970 of 2002

Arulmihu Kachapaeswarar Devasthanam,

rep. by its Executive Officer,

Nellukkaran Street,

Kanchipuram. ... Appellant.

-Vs-

1. Sri Kachapeswarasamy Nagar Colony,

rep. by N.Sachithanandam,

Kachapeswarasamy Nagar,

K.A.Koil Street,

Pillayarpalayam,Kanchipuram.

2. Chellappan.

3. Assistant Commissioner,

H.R. & C.E. Department,

Kanchipuram. ... Respondents. Second appeal filed against the judgment and decree in A.S.No.58 of 1990 dated 31.3.1992 on the file of the Sub Judge, Kanchipuram filed against the judgment and decree dated 16.8.1990 in O.S.No.464 of 198 9 on the file of the District Munsif, Kanchipuram. For appellant :: Mr.G.Rajan.

For respondents :: Mr.S.D.N.Vimalanathan for R1 &R2 Mr.M.C.Swamy Spl.GP. for R3. :JUDGMENT



This appeal is directed against the judgment and decree dated 31.3.1992 in A.S.No.58 of 1990 on the file of the Subordinate Judge, Kanchipuram confirming the judgment and decree dated 16.8.1990 in O.S.no.4 64 of 1989 on the file of the District Munsif, Kanchipuram.

2. The first defendant in the suit is the appellant herein. The respondents 1 and 2 are the plaintiffs and the third respondent, the Assistant Commissioner, Hindu Religious and Charitable Endowment Department is the second defendant in the suit. According to the plaint, the plaintiffs have filed the suit in a representative capacity representing all the residents of Sri Kachapeswararsamy Nagar Colony and they are about 176 in number and the said Sri Kachapeswararsamy Nagar Colony is situate in T.S.Nos.1274/1 and 1274/2 in two parts. The area, according to the plaint, is about 8.86 acres which has been subdivided into 170 plots measuring 20' x 66' each and six plots measuring 20' x 66' each. The case of the plaintiffs as seen from the plaint is that the plots were notified and auctioned for lease by the Executive Officer, Sri Kachapeswararsamy Devasthanam, Kanchipuram on a monthly rent of Rs.20/- per site on lease basis. According to the plaintiffs, the lease was for a period of four years, but however, to avoid registration, the document was executed for a period of 11 months. It is stated that the terms of lease also indicate the auction price. It is stated that the plaintiffs have paid the rent, advance money and also donation of a sum of Rs.500/-. I t is stated that the amounts have been collected from all residents of the Nagar and separate lease deeds have been executed in favour of the the successful bidders and they have been in possession and enjoyment of their respective plots. It is the case of the plaintiffs that the plaintiffs are the lessees in respect of the suit property and as such, they have been in possession and enjoyment of the same. It is stated that the plaintiffs have requested the defendants to effect a complete survey of the property and to execute the registered lease deeds consequent to the confirmation of auction. It is stated that the plaintiffs have issued a notice dated 15.3.1989 under section 80 of the Code of Civil Procedure. It is stated that the defendants have attempted to interfere with the peaceful possession and enjoyment of the plaintiffs of their respective plots. It is stated that the attempt of the defendants to interfere with the possession of the plaintiffs was thwarted and hence, the suit for permanent injunction restraining the defendants from in any way interfering with the peaceful possession and enjoyment of the suit property until evicted by due process of law.

3. The second defendant, the Assistant Commissioner of H.R. & C. E., Kanchipuram has filed a detailed written statement which was adopted by the first defendant also. The defendants have denied the existence of 'Sri Katchabeswaraswamy Nagar'. It is their case that the plaintiffs do not reside there. It is also stated that the plaintiffs are not representatives of the residents of Katchabeswaraswamy Nagar. The defendants have denied the allegation that an area of 8.86 acres has been subdivided into 176 plots and the plots were notified and auctioned as false. It is stated that no plots were formed and they were not demarcated also. It is stated that the plaintiffs are not lessees of the suit property and they are not in possession and enjoyment of the suit property. It is the case of the defendants that one of the conditions in the auction notice (condition No.14) was that the lease was subject to the approval of Commissioner of Hindu Religious and Charitable Endowment (HR&CE) Administration Department, Chennai and no approval was obtained from the Commissioner. It is also stated that the auction of the temple land as house sites for residential purpose is prohibited as per the Commissioner's Circular Instructions in Rc.No.24321/85,V2, dated 15.3.1985 wherein the Commissioner has restrained the lease of vacant sites belonging to religious institutions. It is stated that the Deputy Commissioner has permitted lease of urban land, viz., the suit land for plotting out sites for construction of temporary dwellings, but no previous permission of the Commissioner was obtained as per the circular. It is also stated that the Commissioner, HR & CE. Department initiated suo motu proceedings under section 21 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as 'the Act) in S.M.R.P. No.58/89 against the grant of approval of lease by the Deputy Commissioner. It is stated that the commissioner has also stayed all further proceedings by a telegram dated 19.4.1989 and also confirmed it by a communication sent by post. It is stated that the stay was also made absolute and the Deputy Commissioner as well as the Executive Officer of Katchabeswarar temple were restrained from implementing the auction proceedings dated 11.12.1988 and the final order was passed by the Commissioner on 26.6.1989 setting aside the order of the Deputy Commissioner dated 25.11.1988 in which the lease of land was permitted. It is stated that in the same order, the Commissioner set aside the consequential order of the Deputy Commissioner dated 20.2.1989 approving the lease in public auction in favour of 176 persons as the Deputy Commissioner has violated the circular instructions of the Commissioner. It is also stated that the Executive Officer of the temple has been directed to return the money received from the plaintiffs. It is therefore submitted that the plaintiffs are not entitled to enter upon the land and there is no legal relationship of landlord and tenant between the plaintiffs and the first defendant. It is also stated that there was no notice under section 80 C.P.C. and the plaintiffs are not in possession of the suit property. The case of the defendants is that the plaintiffs are not lessees of the suit property.

4. The trial Court has framed as many as seven issues for consideration. The trial Court found that Ex.A-1 was sufficient to show that the land was divided into 176 plots. The trial Court considered Exs.A-2 and A-3 and held that there was a lease of the suit property for a period of 11 months and therefore, the plaintiffs were in possession of the suit property as lessees. The trial Court also found that the suit notice issued is a valid notice under section 80 C.P.C. The trial Court found from the auction notice that the approval of the Commissioner was required before granting the lease. It also found that the Commissioner, HR.& CE, by order dated 15.3.1985, has granted stay and there was a prohibition for plotting out the vacant lands belonging to religious institutions and the permission from the Commissioner was required even if the lease is for a period less than five years. The trial Court therefore held that in spite of knowledge of prohibition, the Executive Officer has divided the land belonging to the temple and entered into lease with the plaintiffs and received rental income. The trial Court held that it was only an irregularity of the Executive Officer. The trial Court also noticed that the Commissioner, by his order passed under section 21 of the Act, has cancelled the order of the Executive Officer as well as the Deputy Commissioner. The trial Court therefore held that though the Commissioner has cancelled the orders of the Executive Officer and the Deputy Commissioner, since 176 innocent people have been given assurance that the temple property would be let out and they have been also given lease, it is not open to the defendants to interfere with the possession of the plaintiffs except in accordance with law. The trial Court granted decree only against the first defendant and dismissed the suit as against the second defendant, viz., the Assistant Commissioner of H. R. & C.E., Kanchipuram.

5. The first defendant, viz., the Executive Officer, Sri Katchabeswaraswamy Devasthanam challenged the judgment and decree of the trial Court before the learned Subordinate Judge, Kanchipuram. Learned Subordinate Judge, while framing points for consideration in the appeal, also framed an additional point, viz., whether the order passed by the Commissioner under section 21 of the Act was within his authority and whether it was valid in the eye of law.

6. As far as the point, viz., whether the Executive Officer of the temple was correct in granting lease of the temple land for a period four years is concerned, learned Subordinate Judge found that in the auction notice one of the conditions for auction was that the lease of the property should be granted with the prior approval of the Commissioner. Learned Subordinate Judge found that the proposed lease was only for a period of four years and relying upon section 34 of the Act, he held that the provisions of section 34 of the Act would apply only in a case where the period of lease exceeds the period of five years and it was not necessary for the Executive Officer to obtain permission even from the Deputy Commissioner and therefore the lease granted by the Executive Officer of the te mple was valid. Learned Subordinate Judge also held that the order passed by the Commissioner under section 21 of the Act was not valid as no opportunity was granted to the plaintiffs before cancelling the auction. Learned Subordinate Judge held that the plots were subdivided and they were in possession of the plaintiffs as lessees. He also held that the notice issued by the plaintiffs would satisfy the requirements of section 80 C.P. C. Learned Subordinate Judge therefore dismissed the appeal. He also allowed the cross objections preferred by the plaintiffs and granted injunction as against the second defendant also. The judgment and decree of the learned Subordinate Judge is the subject matter of the second appeal.

7. The second appeal has been admitted on the following substantial questions of law:-

a. Whether the notice issued under section 80 of Code of Civil Procedure, in which a specific relief sought by the plaintiffs who in turn, filed a suit for different relief which is not even find a place in the said notice issued by him under section 80 of C.P.C. is valid in law? b. While the actual possession of the suit property is not handed over to the plaintiff and the plaintiff is not establishing the prima facie case, whether the courts below are correct in decreeing the suit as prayed for by the plaintiffs?

Apart from the questions of law framed, I am of the view, it is also necessary to frame an additional question, viz.,

c. Whether the lower appellate Court is correct in framing a point regarding validity of the order passed by the Commissioner, H.R.& C. E., dated 26.6.1989 (Ex.B-3) when the validity of the order was not questioned by the plaintiffs and there was no issue framed and decided by the trial Court in this regard?

8. Before going into the merits of the matter, it is necessary to mention here that even accepting the case of the plaintiffs that there was a lease, the lease was only for a total period of four years and the lease period has already expired. The defendants have not executed registered lease deeds with the first defendant. Even accepting the case of the plaintiffs that lease was granted only for a period of four years, it has already expired in the year 1993 itself. The submission of Mr.G.Rajan, learned counsel for the appellant is that the period of arrangement pleaded by the plaintiffs has come to an end, but however, it is necessary for this Court to give a finding on the status of the plaintiffs, even assuming that there are in occupation of the suit property. According to the learned counsel for the appellant, the plaintiffs are not lessees of the suit property, but they are mere trespassers and the proceedings to evict a tenant or a tenant holding over will be different from the eviction of a trespasser. Learned counsel for the plaintiffs, on the other hand, submitted that the decree has provided that the plaintiffs should not be evicted, except in accordance with law and the appellant is not aggrieved by the decree. I am unable to accept the submission. As rightly pointed out by Mr.G.Rajan, learned counsel for the appellant, the question whether the plaintiffs are in possession of the property and even assuming they are in possession, the question whether they are in occupation as tenants holding over or as trespassers have to be gone into, because the proceedings for eviction of a tenant will be different from the proceedings for eviction of a trespasser. Therefore the second question framed by this Court assumes importance though the period of arrangement as pleaded by the plaintiffs has come to an end.

9. The facts are not in much dispute. The auction notice dated 28.1 1.1988 (Ex.B-1) shows that the appellant brought the property for auction to grant lease for a period of four years and there are two important conditions found in the auction notice. The first condition is clause-13 which enables the Executive Officer to postpone the auction or permanently cancel the auction. Another important condition is that the auction would be subject to the approval of the Commissioner, H.R.& C.E. These conditions assume importance, because there was an earlier circular issued by the Commissioner dated 15.3.1985 (Ex. B-2) wherein the Commissioner has issued a direction prohibiting lease of vacant lands belonging to public temples, and the circular provides that it is necessary for the Executive Officer to obtain prior permission of the Commissioner before bringing the temple property for auction whether the period of lease is less than five years or more. The circular also directed the Deputy Commissioners to furnish the details of proceedings pending for auction in the form of proposal before 20.3.1985. A careful reading of the circular dated 15.3.1985 shows that there is a complete prohibition against the grant of lease of vacant lands or shops or buildings belonging to public temples and the prior permission of Commissioner is necessary before the grant of lease even if the period of lease is less than five years. The condition in clause-14 found in the auction notice dated 28.11.1988 is in conformity with the earlier circular dated 15.3.1985. As a matter of fact, the Executive Officer should not have ventured even for bringing the property for auction for lease without obtaining prior permission of the Commissioner, H.R. & C.E. The Commissioner has not granted the approval for auction of the suit property for lease in favour of the plaintiffs. The second respondent has categorically stated in the written statement that the Commissioner has not granted permission. The Executive Officer of the first defendant was examined as D.W.1 and D.W.1 has also stated that no approval of the Commissioner was obtained by him and the Commissioner has not granted the approval. D.W.1 was not cross examined on the statement made by him that he has not obtained the approval of the Commissioner, H.R. & C.E.

10. Mr.Vimalanathan, learned counsel for the plaintiffs, on the other hand, submitted that Ex.A-1 shows that the Deputy Commissioner has granted necessary permission by his letter dated 27.2.1989 and the Commissioner has delegated the power to the Deputy Commissioner under section 14(3) of the Act and acting as a delegate of the Commissioner, the Deputy Commissioner has granted necessary approval.

11. I am unable to accept the submission of the learned counsel for the plaintiffs for more than one reason. The submission that the Deputy Commissioner was acting as a delegate of the Commissioner under section 14(3) of the Act was not raised by the plaintiffs in the averments made in the plaint, even though the plaintiffs have produced Ex.A-1 as part of their evidence. Secondly, it is not clear how the trial Court has permitted the plaintiffs to mark the document, Ex.A-1 as it is a Xerox copy and the document was not addressed to the plaintiffs, and it was a pure internal correspondence as it was only a letter from the Deputy Commissioner to the Executive Officer of the temple. Thirdly, I am also unable to accept that there was a delegation of power, because the Commissioner, in his order in Ex.B3 cancelling the order passed by the Deputy Commissioner, has not stated that the Deputy Commissioner has acted on behalf of the Commissioner, and according to the Commissioner, the order is not in conformity with the instructions of the Commissioner. The commissioner was of the view that the order of the Deputy Commissioner was against the previous instructions of the Commissioner to the effect that prior permission of the Commissioner should be obtained before plotting out the vacant site of public temple even for a period less than five years. That is why, he not only set aside the order of the Deputy Commissioner dated 25.11.1988, but also set aside the order of the Deputy Commissioner dated 20.2.1989 (Ex.A-1) approving the lease in public auction in favour of 176 persons. The Commissioner also directed that no one should enter the land and directed the refund of the amount received from the bidders for lease. The order in Ex.B-3 clearly shows that the Commissioner has not delegated his power to the Deputy Commissioner. Further, section 14 (3) of the Act deals with the situation of delegation of powers conferred or duties imposed on the Commissioner by the Act or the rules made thereunder. The circular by the Commissioner prohibiting the grant of lease of the temple lands even for a period less than five years without prior permission of the Commissioner would be binding all the persons including the Executive Officer of the first defendant. It is a general instruction issued for the proper administration of the department and it is not open to the Executive Officer to ignore the circular. The circular does not specify that prior permission of the Commissioner can be obtained from his delegate and when the circular has stated that prior permission must be obtained from the Commissioner, it necessarily follows that the approval of the Commissioner is necessary. It is also relevant to mention here that the circular does not say that the powers of the Commissioner were delegated to the Deputy Commissioner. Therefore I hold that the act of the Executive Officer even to bring the property for auction for lease is in violation of the clear instructions by the Commissioner and the plaintiffs cannot claim protection under the orders of the Deputy Commissioner. I am of the view that it is not open to the Executive Officer to deal with the temple property as if it is his private property and he is the owner of the same. The Executive Officer has been given the power to administer the temple and protect the temple property and the conduct of the Executive Officer in bringing the property for auction without obtaining permission of the Commissioner is reprehensible. Equally, the Deputy Commissioner has no power at all to grant the approval to the illegal act done by the Executive Officer, and the illegal act done by the Executive Officer, coupled with the act of the Deputy Commissioner would not clothe the plaintiffs with any right as lessees. When the clause in the auction notice clearly provides that the lease is subject to the grant of approval by the Commissioner, the grant of lease by the Executive Officer without approval of the Commissioner in favour of 176 persons is quite illegal. The Executive Officer, in my view, has proceeded as if he is an extra legal authority and he has completely ignored and acted in violation of the instructions of the Commissioner in bringing the property for auction. It is not necessary go to into the question of motive of the Executive Officer in bringing the property for auction, but it is clear that the action of the Executive Officer is illegal and once it is illegal, the plaintiffs cannot claim any right in the property as lessees.

12. The trial Court as well as the first appellate Court proceeded on the basis that the plaintiffs were lessees of the property on the basis of Exs.A-2, A-3, A-7 and A-8. As far as Ex.A-2 is concerned, it is only a miscellaneous receipt dated 11.12.1988 and it does not refer to the year. The auction notice is dated 28.11.1988 and the order of the Deputy Commissioner granting approval is dated 20.2.1989. However, on the date of Ex.A-2, the Executive Officer had no authority at all even to receive money as the permission granted by the Deputy Commissioner was obtained subsequently on 20.2.1989. Therefore Ex.A-2 does not improve the case of the plaintiffs that there was lease.

13. As far as Ex.A-3 is concerned, it is dated 6.3.1989. No doubt, this agreement was subsequent to the approval granted by the Deputy Commissioner in Ex.A-2 dated 20.2.1989. This agreement also does not confer any right on the plaintiffs as lessees as the permission of the Commissioner was not obtained as stated in the auction notice in Ex.B-1. The agreement only refers to the order of the Deputy Commissioner. Therefore this agreement does not confer any right as lessees on the plaintiffs as the Executive Officer, in terms of the auction notice, has no power to enter into lease without permission of the Commissioner which was not granted.

14. As far as Exs.A-7 and A-8 are concerned, they are not relevant for the purpose of the case and they deal with a different property and only Xerox copies have been produced and the documents were marked subject to objection.

15. Learned Subordinate Judge refers to section 34 of the Act and held that the permission of the Commissioner would be required only where the lease is for a period of more than five years. Learned Subordinate Judge therefore held that since the lease is for a period of less than five years, the permission of the Commissioner is not necessary. I am unable to accept the view of the learned Subordinate Judge as it is not the case of the defendants that the permission of the Commissioner is required under section 34 of the Act as section 34 deals with the cases of lease of immovable property of the temple for a period exceeding five years, but the case of the defendants is that there was a circular issued by the Commissioner prohibiting grant of lease of vacant lands of the public temples and the circular was issued even in the year 1985 and the circular is binding on the Executive Officer and in contravention of the circular, it is not open to the Executive Officer to grant lease. I have already held that the condition No.14 in Ex.B-1 is in conformity with the circular dated 15.3.19 85 and since it is one of the essential conditions to be complied with which was not done, I hold that the plaintiffs cannot claim that they are in possession of the property as lessees. I hold that since there was no lease at all as the Executive Officer has no authority to grant lease without the approval of the Commissioner, the question whether such a lease is a void or a voidable lease does not arise.

16. As far as the possession of the property is concerned, though the finding regarding possession would be a finding of fact, I find that both the Courts have completely overlooked the material evidence and came to the conclusion that the plaintiffs were in possession of the property as lessees on the date of filing the suit, on the basis of Exs.A2 and A3. The plaintiffs, along with the suit also filed a petition for interim injunction and the trial Court appointed a Commissioner and the Commissioner inspected the property on 28.6.1989. The suit was filed on 5.6.1989. The Commissioner has given a report to the effect that no one was living in the suit property and all the huts were were open without any wall. it is also stated that at the time of inspection, some huts were being constructed by coolies. The Commissioner filed the report on 1.7.1989, and it is not brought to the attention of the Court that the plaintiffs have filed any objection to the report filed by the Commissioner. The Commissioner was also examined and he has stated that there were 38 huts and there were no surrounding walls and some of the huts were new and were open. The trial Court as well as the first appellate Court has completely overlooked the Commissioner's report, but took into account only the documents, Exs.A-2 and A-3. Both the Courts should have considered the evidence of the Commissioner that there are only 38 huts at the time of his inspection and no one was living in the huts and some huts were not complete before rendering their finding that the plaintiffs were in possession of the suit property. However, it is not necessary to upset the finding of the courts below as it is stated that 176 people are residing probably, on the basis of subsequent court orders. I hold that their possession cannot be termed to be lawful and they are only trespassers and they are liable to be evicted in accordance with law.

17. Learned counsel for the second defendant also raised a plea that the notice issued by the plaintiffs is not a valid notice under section 80 C.P.C. Both the Courts found that the notice is a valid notice under section 80 C.P.C. I have gone through Ex.A-4 which has been relied upon by both the Courts. Ex.A-4 is a notice issued calling upon the defendants to execute registered lease deeds to facilitate the plaintiffs to construct buildings. The notice also says that till 16.3.1989 no huts were constructed. The suit filed by the plaintiff is only for injunction. Though the notice issued was not a notice complaining the act on the part of the defendants to dispossess the plaintiffs, however, I am of the view, it is not necessary to consider the question as I have already held that the possession of the plaintiffs is not lawful from the date of inception. Learned counsel for the plaintiffs relied upon the decision of the Patna High Court in RAMCHARAN v. CUSTODIAN, EVACUEE PROPERTY (AIR 1964 Patna 275) and the decision of the Supreme Court in RAGHUNATHA DAS v. UNION OF INDIA ( AIR 1969 S.C.674) dealing with the requirements of issue of notice under section 80 C.P.C. However, in the view I am taking, it is not necessary to consider the decisions relied upon by the learned counsel for the plaintiffs.

18. As far as the additional question framed by me is concerned, I hold that the learned Subordinate Judge was not correct in going into the question of validity of Ex.B-3. The Commissioner passed the order cancelling the order of the Executive Officer as well as the Deputy Commissioner after giving notice. The defendants have brought to the knowledge of the plaintiffs about the order passed by the Commissioner under section 21 of the Act in the written statement filed by them, but in spite of the same, the plaintiffs have not raised any plea and also not taken any steps to amend the plaint challenging the order passed by the Commissioner in Ex.B-3. The trial Court has not framed any issue and also has not given any finding regarding the validity of the order passed by the Commissioner in Ex.B-3. In the appeal filed by the first defendant before the first appellate Court, the plaintiffs have filed cross objections against the refusal to grant decree against the second defendant. But, even in the cross objections the plaintiffs have not raised any plea questioning the validity of the order in Ex.B-3. In the circumstances, learned Subordinate Judge, as the first appellate Court, had no occasion to consider the question of validity of the order of the Commissioner in Ex.B-3 as the plaintiff has not challenged the order even after they were made aware of the order of cancellation passed by the Commissioner. Learned Subordinate Judge has committed an illegality in holding that a prior opportunity was not given to the plaintiffs by the Commissioner before passing the order, Ex.B-3 which is an order cancelling the order of the Deputy Commissioner in Ex.B-2. Learned Subordinate Judge has committed an error in the sense that since no issue was framed on the validity of Ex.B-3, no evidence was let in on the question whether Ex.B-3 was valid or not. It must also be remembered that the case of the defendants throughout was that the property has not been let out by the Executive Officer in favour of the plain tiffs and none occupied the temple property and when that is the position, the question whether it is necessary to grant an opportunity to the plaintiffs and further whether it is necessary for the Commissioner to give an opportunity to the plaintiffs before passing the order in Ex.B-3 cancelling the order passed by the Deputy Commissioner are all matters of evidence and without necessary evidence on record, learned Subordinate Judge has committed a serious irregularity in framing a new point and giving a finding on that point. Further, it must also be remembered that the plaintiffs have not taken any step to challenge the order in the same proceedings or by way of an independent proceedings even after they were made aware of the order passed by the Commissioner in Ex.B-3. Learned counsel for the plaintiffs relied upon the decision of the Supreme Court STATE OF PUNJAB v. BAKSHISH SINGH (1998) 8 SCC 222) wherein the Supreme Court considered the scope of Order 41, Rule 33 and section 107 of the Code of Civil Procedure. The Supreme Court held that Order 41, Rule 33 C.P.C. gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections. I hold that the above decision has no application to the facts of the case. No doubt, the first appellate Court has a very wide power and it can deal with the question of fact as well as the question of law, however, when there is no pleading, no issue and no evidence on a particular aspect, the first ap pellate Court, in my view, without any evidence on record and without calling for any finding on the issue framed, was not correct in deciding a point which was not raised as an issue for trial. In these circumstances, the finding given by the learned Subordinate Judge that the order passed by the Commissioner in Ex.B-3 is not valid is liable to be set aside and accordingly, it is set aside.

19. Learned counsel for the plaintiffs submitted that since the plaintiffs were not served with a copy of the order passed by the Commissioner in Ex.B-3 and hence, they had no opportunity to challenge the order. I hold that to that extent learned counsel for the plaintiffs is correct, but when the defendants have brought to the attention of the plaintiffs about the order of the Commissioner cancelling the order of the Deputy Commissioner as well as the Executive Officer in the written statement and the copy was also marked, it is not open to them to ignore the order of the Commissioner. The plaintiffs should have sought for an amendment of the plaint challenging the order passed by the Commissioner or they could have approached this Court under Article 226 of the Constitution of India challenging the order of the Commissioner with a miscellaneous petition to dispense with the production of the order. The plaintiffs have done neither. I am therefore of the view that even after the plaintiffs had knowledge of the order of the Commissioner, they have not challenged the same. As far as the decision of the Supreme Court in TITAGHUR PAPER MILLS CO. LTD. v. STATE OF ORISSA (AIR 1983 S.C. 603) is concerned, the Supreme Court was dealing with the question whether it is open to a dealer to challenge the order of assessment in a writ petition when the State Sales Tax Act provides an efficacious remedy by filing a second appeal under the Act, and in this context, the Supreme Court held that the order of assessment cannot be challenged by a petition under section 22 6 of the Constitution of India. Therefore the decision does not really help the case of the plaintiffs.

20. Mr.Vimalanathan, learned counsel for the plaintiffs submitted that the plaintiffs have invested huge money and they have given sufficient money to the temple by way of donation and also made certain other payments to the previous tenants. In my view, all these matters are irrelevant. I have already held that the Executive Officer had no power at all to grant lease of the temple property without the prior permission and approval of the Commissioner of H.R. & C.E. and the Deputy Commissioner had also exceeded his authority in according his approval. Therefore I hold that the possession of the plaintiffs can only be regarded as if they are trespassers and it is open to the defendants to evict them in accordance with law.

21. The second appeal is allowed setting aside the findings of both the Courts. I hold that the plaintiffs are not tenants and the order passed by the Commissioner in Ex.B-3 is valid. I hold that the plaintiffs are trespassers and they are liable to be evicted in accordance with law. No costs.

C.M.P.No.13970 of 2002:-

22. This is a belated petition filed by the plaintiffs to direct the appellant to produce the file containing the recommendations of the Executive Officer and the Assistant Commissioner, H.R.& C.E. and the legal opinion of the counsel for the appellant. I have already held that the Executive Officer had no authority to bring the property in public auction in violation of the circular of the year 1985 issued by the Commissioner. Further, the Commissioner passed Ex.B-3 order cancelling the order passed by the Deputy Commissioner. The plaintiffs have not taken any steps to challenge the order of the Commissioner and no issues were framed on this aspect. In the circumstances, I hold that it is not necessary to direct the appellant to produce the file as prayed for by the plaintiffs. The petition is therefore dismissed.

Index: Yes

Website: Yes

na.

15-11-2002

To

1. The Subordinate Judge, Kanchipuram.

2. The District Munsif, Kanchipuram.

3. The Record Keeper, V.R.Section, High Court, Madras. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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