Sulochana v. B.K. Sri Panduranga Mandir
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2018
CORAM:
THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR CRP (PD) Nos. 4059, 4060 & 4061 of 2017 and C.M.P. Nos. 19014 to 19016 of 2017
1. Sulochana .. Petitioner in CRP (PD) No.4059 of 2017
2. N. Nagaraj .. Petitioner in CRP (PD) No.4060 of 2017
3. P. Saradha .. Petitioner in CRP (PD) No.4061of 2017 Vs B.K. Sri Panduranga Mandir Trust Rep. By Managing Trustee cum President Mr. H. Krishnamurthy Rao Malathkar .. Respondent in all CRPs PRAYER: These Civil Revision Petitions filed under Article 227 of the Constitution of India, to set aside the fair and decreetal orders passed by the learned XII Assistant Judge, City Civil Court in I.A. Nos. 5541 of 2017 in O.S.No. 357 of 2012, 5542 of 2017 in O.S.No. 353 of 2012 and 5543 of 2017 in O.S.No. 354 of 2012 dated 10.08.2017.
For Petitioners : Mr. M. Manivasagam in all the CRPs for M/s. M.Manivasagam Associates For Respondents : Mr. S. Francis Ashok in all the CRPs C O M M O N O R D E R These revision petitions are filed against the fair and decreetal orders passed by the learned XII Assistant Judge, City Civil Court in I.A. Nos. 5541 of 2017 in O.S.No. 357 of 2012, 5542 of 2017 in O.S.No. 353 of 2012 and 5543 of 2017 in O.S.No. 354 of 2012 dated 10.08.2017.
2. The learned counsel for the petitioners would submit that the respondent filed the suits in O.S. Nos. 357/2012, 353/2012 and 354/2012, for eviction against the petitioners herein, on the ground of demolition. In the aforesaid suits, the petitioners herein have filed the written statement. In the year 2017, the petitioners filed applications in I.A. Nos. 5541, 5542 and 5543 of 2017 under Order VII Rule 11(a) & (d) r/w. 151 of CPC seeking to reject and struck off the plaint and dismiss the suits.
3. According to the petitioners/ defendants, there is no cause of action for the suit. The suit schedule property as a whole does not belong to the respondent/ plaintiff. The respondent herein is the owner of only the vacant land and the superstructure does not belong to the respondent trust. Originally, the petitioners' parents were the tenant under the respondent's trust of the vacant land of the property and the superstructure were put up by them. After the demise of their parents, the petitioners are in continuous possession and enjoyment of the property. However, with an intention to evict the petitioners, in the year 1996, the respondent filed RCOP Nos.
2606/1996, 2604/1996 and 2605/1996 seeking for eviction of the petitioners herein, before the 4th Judge Small Causes Court at Chennai and the same were decided in favour of the petitioners herein. The petitioners are paying the rent regularly to the respondent Trust. Subsequently, the respondent trust refused to receive the rent, with an intention to make the petitioners defaulters in payment of rent to the respondent. Further, it is contended by the petitioners that the aforesaid suits filed by the respondent before the court below, without jurisdiction and the same is not maintainable.
only the Rent Control Authority and not before the Civil Courts. It is further contended by the petitioners that the respondent is a private trust and therefore the temple will not come under the purview of H.R & C.E Act. In the aforesaid ground, the petitioners have filed the Interlocutory Applications before the court below, to reject the plaints.
4. The respondent filed the counter affidavits in the applications, denying the statement that the suit is not maintainable before the civil court and stating that the respondent Trust is a Public Trust as per the amended plaint and hence the contention of the petitioners are unfounded and the same is liable to be rejected. In support of his submission, the learned counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in the case of Á.N. Kumar vs.
Arulmighu Arunachaleswarar Devasthanam Thiruvannamalai & Ors., reported in 2011-2-LW-1, wherein this Court has held in paragraphs 47 to 49, as follows :- "47. In our considered view, in B.Shaji's case (2010 (3) CTC 851) , the learned single Judge has not correctly interpreted Chapter VII containing Sections 78, 79 and 80 and the
learned single Judge has not correctly laid down the law on the ejectment suits filed by the temples and the judgment in B.Shaji's case (2010(3) CTC
851) would adversely effect the pending ejectment suits filed by the temple and it would have the affect of paralysing the proper administration of the properties of the temple. In our considered view, the decision in B.Shaji's case (2010(3) CTC
851) has not been rendered on proper interpretation of Chapter VII and the view taken by the learned single Judge is not a correct view.
48. During the course of arguments, it was submitted that about 6500 eviction petitions are pending before the Joint Commissioner, H.R. & C.E.Act, out of which only few cases have been disposed. If the temples are to approach the Joint Commissioner in all the cases for filing eviction petitions, the very object of H.R. & C.E.Act would be defeated. Having regard to the number of eviction petitions, keeping in view the interest of temple and the temple properties, it would be in order if the Government appoints more Officers to deal with the eviction petitions.
49.
We summarise our conclusions as under:
So far as the suits filed by the temple for eviction of tenants/licensees/lessees/mortgagees for filing of the ejectment suit, the Civil Court's jurisdiction is not barred. The decision to approach Civil Court or invoke the provisions of H.R. & C.E. Act vests with the Temple.
In cases of encroachers, temple authorities can either resort to the provisions under Sections 78, 79, 79-A, 79-B or to approach the Civil Court. The decision to elect a particular procedure lies with the owner of the property, being the Temple. In view of the express bar under 2nd proviso to Section 79, in so far as the suits by the encroachers/lessees/ licensees/mortgagees, the bar under Section 108 will get attracted excepting in instances specifically stated in the 1st proviso to Section 79."
5. The dispute raised by the petitioners can be decided at the time of trial in the suits. Subsequent to the filing of the suits, the respondent has filed amended plaint in the said suits during the month of December 2011. The petitioners/ defendants have filed their written
statement on 21.07.2012. Thereafter, the Interlocutory Applications have been filed in the month of April 2017 to reject the plaint under Order VII Rule 11 (a) & (d) r/w 151 of CPC. The grounds raised in the instant applications are that the aforesaid suits filed by the respondent are not maintainable since the respondent has to approach only the Rent Control Authorities, under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Tamil Nadu Act 23 of 1973. The respondent is also a private trust and therefore the Civil Court has no jurisdiction to entertain the suits for the relief as prayed by the respondent. As per the aforesaid contention, the respondent has relied the amended paragraph 8 in the plaint, stating that the respondent Trust is a Public Trust.
Therefore, the contention of the petitioners that it is a private trust cannot be decided at this stage. Whether it is a public trust or a private trust can be decided only during the trial of the suit. Therefore, the contention of the petitioners that the suit is not maintainable, can be decided only at the stage of trial, after adducing oral and documentary evidences.
Control Authority has already decided the said proceedings in favour of the petitioners. Holding that, unless contrary proof is produced before the court below, the issue of private trust or public trust, cannot be decided at this stage. Therefore, there is no warrant to interfere with the order passed by the court below. The objection raised by the petitioner can be decided at the time of trial, independently, without being influenced by the orders passed in the Interlocutory Applications.
6. Therefore, the Civil Revision Petition fails and the same is dismissed. On instructions, the learned counsel for both the parties undertake to cooperate with the proceedings before the trial court. The XII Assistant City Civil Court, Chennai is directed to dispose of the suit, as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petition is closed. No order as to costs. 18.01.2018 Index : Yes/ No Speaking order/ Non speaking order
To The XII Assistant Judge, City Civil Court, Chennai.
D. KRISHNAKUMAR J., avr CRP (PD) Nos. 4059, 4060 & 4061 of 2017 and C.M.P. Nos. 19014 to 19016 of 2017 18.01.2018