IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.728 of 1997 Srimad Essor Sathithananda Swamigal Dharma Paripalana Sabha Rep. by its Secretary K.Satchidanandam ... Appellant Vs. 1.The Executive Officer A/m Kandasami Adimottai Amman Koil Kosapet, Madras-12 2.The Deputy Commissioner Hindu Religious & Charitable Endowmentss, Madras-34 3.The Commissioner, Hindu Religious & Charitable Endowmentss, Madras-34 ... Respondents This appeal suit filed under Section 96 r/w Order XLI Rule 1 of Civil Procedure Code and r/w Section 70(2) of Tamil Nadu Hindu Religious & Charitable Endowmentss Act, 1959 as against the Judgment and decree of the learned V Assistant Judge, City Civil Court, Madras in O.S.No.1970 of 1992 dated 15.11.1996. For Appellant : A.Venkatesan For Respondent : Mr.M.Murugesan, Spl. GP (H.R. & C.E.) J U D G M E N T The unsuccessful plaintiff is the appellant herein. Consequent to the appointment of the first respondent herein as the fit person to perform the functions of the Board of Trustees to the suit institution holding it to be a religious institution, the appellant/plaintiff sabha, represented by its secretary, filed an application before the second respondent/second defendant, namely the Deputy Commissioner (H.R. & C.E.), Madras in O.A.No.36/1979 under Section 63(a)(c)(d) of Tamil Nadu Hindu Religious and Charitable Endowmentss Act, 1959 praying for a declaration that the suit institution was a private society and not a religious institution coming under the purview of the Tamil Nadu Hindu Religious and Charitable Endowmentss Act, 1959 (Tamil Nadu Act XXII of 1959). The said original application, after hearing, was dismissed by the second respondent herein by an order dated 04.04.1986. As against the said order, the appellant Sabha preferred an appeal in Appeal Petition No.32/1987 before the third respondent herein/third defendant, namely the Commissioner, H.R. & C.E., Administration Department, Chennai and the same was also dismissed on 13.08.1991 confirming the order of the Deputy Commissioner (H.R. & C.E.). Thereafter the appellant has preferred a statutory suit under Section 70 of the Hindu Religious and Charitable Endowmentss Act, 1959 to set aside the above said order of the Deputy Commissioner (H.R. & C.E.), which was confirmed by the Commissioner (H.R. & C.E.) and for a declaration that the suit institution is not a religious institution coming under the purview of the Hindu Religious and Charitable Endowmentss Act, 1959. 2. According to the plaint averments, Srimad Sachidananda Swamigal, a great scholar, philosopher and yogi of the 19th century, after writing several books advocating Advaita philosophy, died in or about 1886 at Kosapet, Madras (North Chennai) and his body was buried at old door No.1, new No.123, Sachidanandam Street, Kosapet, Madras-12 by his disciples. A hall with tiled roofing and a compound wall surrounding the building were also constructed by the disciples of the above said scholar. Contending that the suit institution is nothing but a 'samathi' of the above said Sachidananda Swamigal; that the same was looked after by the appellant Sabha, a registered society registered and formed in the year 1985 under the Societies Registration Act; that the said institution was neither a math, nor a temple, nor a religious or specific Endowments to be brought under the purview of the Hindu Religious and Charitable Endowmentss Act, 1959, the appellant/plaintiff contended before the respondents 2 and 3 in the original application and the appeal petition respectively and also before the trial court in the statutory suit that the Assistant Commissioner (H.R. & C.E.) had erroneously appointed the first respondent/first defendant as fit person to perform the functions of the Board of Trustees in respect of the suit institution and that the said order was liable to be set aside and the plaintiff was entitled to a declaration that the suit institution was not an institution that came under the purview of the Act XXII of 1959. It was also contended therein that the power of the Assistant Commissioner (H.R. & C.E.) to appoint a fit person to a religious institution could not be exercised in respect of a Math. In support of the contention of the appellant that the suit institution is not a religious institution, it was also pleaded in the plaint that no idol was installed inside the premises; that people do not come and offer worship to any idol in the institution; that no regular poojas are performed in the suit institution; that on the anniversary of Srimad Sachidananda Swamigal, "thidhi" would be performed in the samathi of the said yogi and that no property had been endowed to the suit institution for the purpose of any specific service or charity in a Math or temple or for the purpose of any other religious charity. The appellant/plaintiff, as an alternative plea had submitted before the trial court in the plaint that even it could be assumed that the suit institution was a religious institution, the appointment of a fit person without issuing a notice under Section 71 of the Hindu Religious and Charitable Endowmentss Act, 1959 would make the order of the Assistant Commissioner (H.R. & C.E.) invalid and that for that reason alone the order of the Assistant Commissioner (H.R. & C.E.) appointing fit person should be set aside. 3. The suit was resisted by the first respondent herein/first defendant by filing a written statement denying the plaint allegations and contending that there was no cause of action for the suit and that the valuation for the purpose of court fee was incorrectly made. In other respects the first respondent/first defendant adopted the written statement of the third respondent/third defendant. 4. The third respondent herein/third defendant filed a written statement, which was also adopted by the 2nd respondent/2nd defendant, refuting the plaint allegations and contending as follows:- The institution was not founded by Sri Sachidananda Swamigal as claimed by the appellant herein/plaintiff. Originally, properties were purchased and endowed in favour of the Math even during the life time of Sri Arunachala Swamigal, the guru of Srimad Sachidananda Swamigal, as evidenced by the recitals of the Will dated 14.12.1888 left by Sri Sachidananda Swamigal. The said Arunachala Swamigal was the founder and head of the Math and he was succeeded by Sri Sachidananda Swamigal as the second guru of the Math. The institution was no doubt a Math. After the death of Sri Sachidananda Swamigal, plaintiff managed to change the nomenclature of the institution as "Sabha" on the strength of the Will dated 14.12.1888 left by Sri Sachidananda Swamigal. The records of the institution would show the donors' wishes were disregarded by entombing the mortal remains of Sri Sachidananda Swamigal in the property of the suit institution which he himself would not have meant in the Will. It is true that every one who has got real interest to know Advaita and advocating the same can become the disciple of the institution, but at the same time the disciples are Hindu public at large who offer worship in the suit institution as a matter of right without any resistance from any source. The suit institution is a math falling squarely under the description of religious institution found in Section 6(18) of the Hindu Religious and Charitable Endowments Act, 1959 and the plaintiff has conveniently changed the nomenclature of the math into a "sabha" in order to take the institution from the purview of the Act. The suit is also not maintainable, as statutory notice under Section 80 CPC was not given and no order dispensing with service of such notice had been obtained. In any event, the suit filed by the appellant/plaintiff is liable to be dismissed as there is no merit in it. 5. The court below framed the following issues: 1.Whether the plaintiff is entitled to the relief of declaration and permanent as prayed for in the plaint? 3.Whether the suit is affected by the failure to issue notice under Section 80 of CPC? 5.Whether proper court fee has not been paid? 7.To what other relief the plaintiff is entitled? 6. In the trial, two witnesses were examined on the side of the plaintiff as P.W.1 and P.W.2 and 15 documents were marked as Exs.A1 to A15. Only one witness was examined as D.W.1 and nine documents were marked as Exs.B1 to Ex.B9 on the side of the defendants. After both parties adduced evidence, both oral and documentary, the learned trial judge heard the arguments advanced on either side and considered the evidence brought before him in the light of such arguments. Upon such a consideration, the court below came to the conclusion that the plaintiff failed to prove that the suit institution was not a religious institution and decided the issues 1 and 2 against the plaintiff, issue No.3 in favour of the plaintiff and consequently issue No.4 against the plaintiff and dismissed the suit by its judgment and decree dated 15.11.1996. 7. Aggrieved by and challenging the decree passed by the trial court as erroneous and praying that the decree passed by the trial court should be set aside and the suit filed by the appellant/plaintiff should be decreed as prayed for, the appellant/plaintiff has filed the present appeal on various grounds set out in the memorandum of appeal. 8. The points that arise for consideration in the appeal are as follows:- 1. Whether the suit institution is not a religious institution defined under Section 6(18) of the Hindu Religious and Charitable Endowments Act, 1959? 2. Whether the appellant/plaintiff is entitled to a declaration that the suit institution is not a religious institution? 3. Whether the appellant/plaintiff is entitled to a permanent injunction restraining the defendants, its officials or anybody acting on their behalf from in any way interfering with functioning of the plaintiff society viz., Srimad Esoor Sachidananda Swamigal Dharma Paripalana Sabha at No.52, Kandasamy Koil Street, Kosapet, Madras-600 012? 4. What other relief/reliefs, the appellant/plaintiff is entitled to? 9. Mr.A.Venkatesan, learned counsel for the appellant/plaintiff, in his arguments in support of the case of the appellant raised the following contentions:- i) The court below committed an error in arriving at the conclusion that the suit institution is a math, whereas the appellant/plaintiff has produced documents which are more than sufficient to show that the institution is a registered society registered under the Societies Registration Act. ii) The court below failed to appreciate the contention of the appellant/plaintiff that there can be no samadhi inside a temple or temple inside a samadhi. When the plaintiff's case that there is only a tomb with a small tiled structure over the place wherein the mortal remains of Sri Sachidananda Swamigal have been interned; the same will be no less than a samadhi and hence it could not be termed either a temple or a religious institution. iii) Even assuming that the suit institution is a math and hence a religious institution, the H.R. & C.E. authorities do not have the power of appointing fit person as the application of Sections 45 to 58 of the Act to a math is specifically excluded by Section 44 of the Act. On that ground alone, the court below should have granted a decree in favour of the appellant/plaintiff. iv) The court below committed an error in arriving at a conclusion that the suit is bad for non- compliance with Section 80 of CPC, as pre-suit statutory notice was not given to the respondents. Since the suit has arisen out of an order passed by a quasi-judicial authority and is a statutory suit contemplated under Section 70 of the Hindu Religious and Charitable Endowmentss Act, 1959, no statutory notice contemplated under Section 80 of CPC need be given. v) The court below failed to properly appreciate the contentions raised on both sides and the evidence, both oral and documentary, adduced on both sides which led to the erroneous conclusion that the appellant/plaintiff was not entitled to any of the reliefs sought for in the plaint. 10. Per contra, the learned Special Government Pleader contended that the court below, on a proper appreciation of evidence and correct application of provisions of law and legal principles, decided the case against the appellant/plaintiff; that none of the findings of the trial court could be termed erroneous; that the well considered judgment and decree of the trial court do not deserve any interference by this appellate forum and that the appeal should be dismissed confirming the decree of the trial court. 11. Section 80 (1) of CPC says that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of a Secretary to the central government in case the suit is against the central government, to a Secretary to the government or the Collector of the district in case the suit is against the state government and to the public officer concerned. The said requirement is made mandatory and the only exception is found in sub clause (2) of Section 80, which enables the court to dispense with the service of notice when urgent or immediate relief is sought for. Even in such cases no interim order could be granted without giving a reasonable opportunity to the government or the public officer, as the case may be, to show why such interim order cannot be granted. The proviso to sub clause (2) says that the plaint shall be returned for presentation after complying with sub- section 1 of 80 C.P.C. if the court, on hearing the parties, is satisfied that no urgent or immediate relief need be granted. The said requirement of serving a notice two months prior to the institution of the suit, as per Section 80(1) of CPC had been earlier interpreted to be mandatory in respect of each and every case either the same was a statutory suit or not. The learned counsel for the appellant drew our attention to the judgment of a division bench of this court in Tholappa Iyengar, alias Alagar Iyengar v. The Executive Officer, Sri Kallalagar Devasthanam, Alagarkoil, Madurai Etc and 7 others reported in 1993-2-L.W.537, which was subsequently followed by a learned single judge of this court in A.S.Krishnan vs. N.S.Venkatarama Pillai (deceased) and others reported in 2007(2) TLNJ 122 (Civil). Based on the observations made by the division bench of this court in Tholappa Iyengar's case, the learned counsel for the appellant submitted that no purpose will be served by issuing a statutory notice to the authorities whose orders passed as quasi-judicial authorities are impugned in the statutory suit and the service of notice will be a mere ritual as the said authority shall have no option to rescind or review or recall its order. The observations made in the said judgment of the division bench are extracted hereunder: " On the basis of the judicial consensus thus we are in a position to say that a notice under S.80, of the Code of Civil Procedure, 1908 is unnecessary if, having regard to the nature of the suit and the capacity and the context in which public officers have been impleaded, it is found that no purpose can be served by notice to such officers. The fact that the officer concerned has acted judicially or quasi-judicially may be one such fact which will lead to the conclusion that the purpose of the suit is not to sue the officer for any such act done by him in his official capacity, which shall attract S.80, of the Code of Civil Procedure, 1908. The fact that a special procedure is created and a special jurisdiction is conferred for a certain type of adjudication upon a public officer and in that official capacity he is required to decide a dispute or a matter and a suit is provided as a remedy under the Special Act for the cancellation or modification of the order of such public officer shall also be a fact showing that such act done by such public officer in his official capacity will not attract S.80, of the Code of Civil Procedure, 1908. As the Supreme Court has said, the provisions in S.80, of the Code of Civil Procedure, 1908 are not intended to be used as booby-traps against the ignorant illiterate persons, but are intended to advance justice by affording on the one hand a person intending to sue the Government or a public officer in his official capacity opportunity to demand from the Government or such public officer redressal of his grievance within two months next after notice, and on the other hand to provide to the government or the officer concerned opportunity to consider whether the Government or the officer should contest the claim and/or to grant the relief as asked for and thus avoid unnecessary litigation. The scheme of the suit under S.70 of the Endowmentss Act, in particular, leaves no option with the Commissioner to rescind, review or recall his order. On this is the position, it is unimaginable that a notice is necessary to afford tot he Commissioner opportunity to consider the redressal of the grievances of the person who sought relief by way of a suit under S.70(1) of the Endowmentss Act." 12. Referring to the observations of the Division Bench, the learned single judge in A.S.Krishnan vs. N.S.Venkatarama Pillai (deceased) and others has observed that the legal position has been well settled. In view of the same, this court also comes to the conclusion that the legal position in this regard is well settled that in a statutory suit under Section 70 against the orders of the Commissioner (H.R. & C.E.), a quasi-judicial authority, the service of notice under Section 80(1) C.P.C. shall be a mere ritual and no purpose will be served and that hence in such cases, there is no necessity to serve notice under Section 80(1) of the Civil Procedure Code before filing of the suit. The finding of the court below regarding the necessity to give notice under Section 80(1) C.P.C. is erroneous, perhaps because the view of the division bench came subsequent to the judgment of the court below and the view that held the field before the division bench judgment was to the contra. Therefore, this court comes to the conclusion that the finding of the court below that the suit is bad for non-compliance with the requirement under Section 80(1) of the CPC is not the correct view and the same deserves to be reversed. Consequently, this court holds that the suit cannot be dismissed on the ground that there was non-compliance with the requirement of statutory notice under Section 80(1) of Civil Procedure Code. 13. Relying on the judgment of the learned single judge in A.S.Krishnan's case, a meek attempt was made initially to contend that the court below having decided the question of maintainability on the ground of absence of notice under Section 80(1) CPC, should not have decided the case on merit and that the suit might be remanded to the trial court after setting aside the finding of the court below on the question of the maintainability of the suit on the ground of absence of notice under Section 80 of CPC. But, subsequently the learned counsel for the appellant conceded that though an issue could have been decided as a preliminary issue, it was not mandatory on the part of the trial court to decide the same as a preliminary issue when the parties did not insist upon such a procedure and that when the parties proceeded with trial adducing evidence on the merits of the case, it was improper for the trial court and in fact the trial court could be found fault with, if some of the issues alone were decided and the other issues were left untouched. 14. It is not the case of the appellant that the court below did not have the jurisdiction and after coming to the conclusion that it did not have the jurisdiction, it went on to decide the case on merit. Only in such circumstances, there is possibility of holding that the court should not have proceeded to decide the case on merit after coming to the conclusion that it did not have the jurisdiction to try the suit. Even in such cases, when full trial has been conducted and evidence has been adduced on all the issues, the appellate court cannot simply remand the case to the trial court after coming to the conclusion that the finding of the trial court in the issue regarding jurisdiction in the negative is not correct. When the trial court has passed a decree based on the findings on all the issues dismissing the suit based on its finding on one of the issues alone and the appellate court reverses the said finding, it shall not be desirable and it shall be even improper to toss the case again to the trial court to consider the case on merit once again on the other issues, as it has already been done by the trial court. Therefore, this court proposes consideration of the other issues regarding the merit of the case. 15. It is the case of the appellant/plaintiff that the appellant/plaintiff is a sabha registered as a society under the Societies Registration Act; that it cannot be construed to be a religious institution coming under the purview of the Tamil Nadu Hindu Religious and Charitable Endowmentss Act, 1959 and that therefore, the appellant/plaintiff is entitled to a declaration that the appellant/plaintiff institution is a "sabha" and not a "religious institution". It is the contention of the respondents/defendants that the suit institution was originally founded by one Srimad Arunachala Swamigal as a math to propagate "advaita principles" and after his demise, his principal disciple Srimad Sachidananda Swamigal became the madathipathi and that subsequently the same was registered as a "sabha" under the Societies Registration Act. 16. The Will, admittedly executed by Srimad Sachidananda Swamigal in the year 1888 refers to the establishment of the math by Srimad Arunachala Swamigal and the Will itself contains a direction that no mortal remains of anybody should be interned in the math. The plaintiff traces the history of the institution only to Srimad Sachidananda Swamigal, who lived in the 19th century. As rightly pointed out by the learned counsel for the respondents/defendants, there are contradictions in the stand taken by the plaintiff in the plaint viz-a-viz the evidence tendered on behalf of the plaintiff as to when the plaintiff sabha was formed. In paragraph 4 of the plaint, the year of formation of the sabha has been given as 1985. The relevant portion in the plaint is extracted here under for better appreciation:- "The plaintiff states that the Sabha was formed in the year 1985 itself and it was registered under the Societies Registration Act and the rules of the said Sabha prescribed the constitution of the Sabha and of the management of the Samadhi and the property left behind by the Yogi and accordingly the Sabha was carrying on its affairs from 1985 onwards till this date." This particular averment in the plaint is proved to be erroneous by the oral evidence of P.W.1 and Ex.A1-By-laws of the plaintiff sabha, namely Srimad Sachidananda Swamigal Dharma Paripalana Sabha. Though P.W.1 who claims to be the present secretary of the plaintiff sabha, admits that yogi Sachidananda Swamigal was the disciple of guru Srimad Arunachala Swamigal, he has carefully avoided any reference to Srimad Arunachala Swamigal and his association with the suit institution. However, during cross-examination, P.W.1 has admitted in clear terms that he was aware of Arunachala Swamigal who lived in 19th century and that Sachidananda Swamigal was his disciple. P.W.1 has also admitted in his evidence during cross-examination that in the stone inscription relating to the suit institution, a reference was made to one Sengalvaraya Pillai son of Velayudham pillai as the donor of the land for the math.