IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).NO. 19426 OF 2008(K) -------------------------- OS.272/2007 OF MUNSIFF COURT, THALIPARAMBA .................... PETITIONER(S): ---------------------- ARANGAM SREE MAHADEVA TEMPLE, ALAKKODE, REP. BY ITS EXECUTIVE OFFICER. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------------- K.KUTTAN PILLA, KUTTUNGAL VEEDU, MUKKADA, P.O.KARTHIKAPURAM, VIA.ALAKKODE, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON 13/11/2008 DELIVERED THE FOLLOWING: W.P(C) NO.19426 OF 2008 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.272 OF 2007 BEFORE THE MUNSIFF'S COURT, TALIPARAMBA DATED JULY 2007. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.272 OF 2007 BEFORE THE MUNSIFF'S COURT, TALIPARAMBA DATED 8.1.2008. EXHIBIT P3 TRUE COPY OF THE ORDER IN O.S. NO.272 OF 2007 ON THE FILE OF THE MUNSIFF'S COURT, TALIPARAMBA, DATED 6.6.2008. RESPONDENTS' EXHIBITS: NIL ------------------------------------- THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P(C) No. 19426 of 2008 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 13th day of November, 2008 J U D G M E N T ---------------------- The finding on an issue regarding jurisdiction of the regular civil court is under challenge in this proceeding initiated under Article 227 of the Constitution. Question raised for consideration is whether the power of the regular civil courts to try a suit for recovery of possession of immovable property belonging to a temple to which the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short, “the Act”) applies is barred expressly or impliedly by the provisions of the said Act. Though respondent-defendant was served with notice, he remained absent. I heard learned counsel for petitioner. 2. Petitioner-plaintiff, Arangam Sree Mahadeva Temple, Alakkode represented by its Executive Officer, filed O.S. No.272 of 2007 in the court of learned Munsiff, Taliparamba. According to the petitioner, 32.27 acres of land in R.S. No.23/1 of Taliparamba Taluk described in the plaint A schedule (of which plaint B schedule is stated to be a portion) belonged to it. Respondent trespassed into the plaint B schedule and W.P(C) No.19426 of 2008 -: 2 :- constructed a temporary shed. Hence, petitioner sought recovery of possession of the plaint B schedule property on the strength of its title and mandatory injunction to direct the respondent to remove the structure put up by him in that property. Respondent contended inter alia, that the suit is not maintainable in the court of the learned Munsiff as the petitioner is governed by the provisions the said Act. An issue regarding jurisdiction of the court was raised and as per order dated 6.6.2008, learned Munsiff held that he has no jurisdiction to try the suit. Learned counsel for petitioner contended that the finding is illegal in that, a suit of the nature as in this case is not governed by the provisions of the said Act. 3. Exhibit P1 is the plaint. Petitioner is described as a public devaswom under the control of H.R. & C.E. Board. Learned Munsiff observed that the suit ought to be filed in the 'court' as defined in Section 6(6) of the Act. Contention of the petitioner that Section 93 of the said Act did not apply to suits of this nature did not find favour with the learned Munsiff. 4. Section 6(6) of the Act defines “court” thus: “6(6).“Courts” means (i) in relation to math or temple situated in the Presidency town, the Madras W.P(C) No.19426 of 2008 -: 3 :- City Civil Court; (ii) in relation to a math or temple situated elsewhere, the Subordinate Judge's Court having jurisdiction over the area in which the math or temple is situated, or if there is no such Court, the District Court having such jurisdiction; (iii) in relation to a specific endowment attached to a math or temple, the Court which would have jurisdiction as aforesaid in relation to the math or temple. (iv) in relation to a specific endowment attached to two or more maths or temples, any court which would have jurisdiction as aforesaid in relation to either or any of such maths or temples”. 5. Section 93 of the Act reads thus: “93. Bar of suits in respect of Administration or Management of Religious institution etc.- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is W.P(C) No.19426 of 2008 -: 4 :- made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act” (emphasis supplied). 6. In this case, the suit is not in respect of administration or management of the temple. The suit is for recovery of possession of plaint B schedule property on the strength of title and for mandatory injunction. Relief is sought against the respondent who, according to the petitioner, is a trespasser in the property. Therefore, Section 93 can apply only if the suit is in respect of “any other matter or dispute for determining or deciding which provision is made in this Act”. To fall within the mischief of that provision, the Act must have provided for determining or deciding the dispute of the nature referred to in the plaint. 7. Sections 52 to 55 (Chapter IV) of the Act deals with Maths. Section 52 deals with suits for removal of trustee of a math or a specific endowment attached thereto. Sub-clause (1) of Section 52 would show that suits referred to in Section 52 concerned removal of the trustee of a math or a specific endowment attached to a math on any of the grounds stated therein. W.P(C) No.19426 of 2008 -: 5 :- 8. Section 62 of the Act relates to suits and appeals and states thus: 62. Suits and appeals.- (1) Any party aggrieved by an order passed by the Commissioner. (i) under section 61, sub-section (1) or sub-section (2), and relating to any of the matters specified in section 57, section 58 or section 60; or (ii) under section 57, section 58 or section 60 read with sub-section (1) (a), (2) or 4 (a) of section 19 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order; and the Court may modify or cancel such order, but it shall have no power to stay the Commissioner's order pending the disposal of the suit. (2) Any party aggrieved by a decree of the Court under sub-section (1), may within ninety days from the date of the decree, appeal to the High Court. W.P(C) No.19426 of 2008 -: 6 :- (3) (a) Any scheme for the administration of a religious institution settled or modified by the court in a suit under sub- section (1) or on an appeal under sub-section (2) or any scheme deemed under Section 103, clause (d), to have been settled or modified by the Court may, at any time, be modified or cancelled by the Court on an application made to it by the Commissioner, the trustee or any person having interest. (b) Any party aggrieved by an order of the Court under clause (a) may, within ninety days from the date of the order, appeal to the High Court.” 9. It is clear that the suits referred to in the said provisions are in respect of orders passed by the Commissioner. These provisions do not relate to a suit for recovery of possession of property belonging to the temple on the strength of title or for mandatory injunction. A suit of the nature as in this case is therefore outside the purview of suits or other legal proceedings barred under Section 93 of the Act. 10. Section 9 of the Code of Civil Procedure (for short, “the W.P(C) No.19426 of 2008 -: 7 :- Code”) enables the civil court to take cognizance and try all suits of a civil nature. 'Suit of civil nature' is one the object of which is the enforcement of a civil right or obligation. The words “civil nature” is wider than the words “civil proceeding”. Hence suits involving one's right which is of even civil nature comes within the mischief of Section 9 of the Code unless its cognizance by the regular civil courts is barred expressly or impliedly. 11. Then, when can it be said that jurisdiction of the civil court is barred expressly or impliedly? Exclusion of jurisdiction of civil court cannot be readily inferred. If a right not pre-existing in common law is created by a statute and that statute itself provides a machinery for the enforcement of that right, then, since the right and remedy have been created by that statute, it could be said that even in the absence of a provision excluding jurisdiction, the jurisdiction of the civil court is ousted. On the other hand, where a right pre-existing in the common law is provided in the statute also, then, there must be express provision in the statute to exclude the jurisdiction of the civil court. In this case, the right to recover possession of the property belonging to the temple on the strength of title from a trespasser is not something created by the Act. It is a right that exists in common law. The Act does not provide any machinery to secure the reliefs W.P(C) No.19426 of 2008 -: 8 :- prayed for in the present suit. There is also nothing in Section 93 or any other provision in the Act which excludes the jurisdiction of the civil court to entertain a suit for recovery of possession or mandatory injunction as prayed for in this case. It is only with respect of the suits provided in the Act that a “court” is specifically designated in Section 6 (6) of the Act. As such it is idle to contend that the jurisdiction of the regular civil court in this matter is barred expressly or impliedly by the provisions of the Act. The finding entered by the court below that it has no jurisdiction to try the suit is illegal and liable to be set aside. Writ Petition therefore, is allowed. The order under challenge is set aside holding that the Munsiff's Court, Taliparamba has the jurisdiction to try the suit. Learned Munsiff is directed to dispose of the suit as provided under law. THOMAS P.JOSEPH, JUDGE. vsv