In a suit brought under S. 64(2) of the Orissa Hindu Religious Endowment Act, 1939, the public is not a necessary party and it is not incumbent upon the plaintiff to make the public as party-defendants to the suit or to take recourse to the procedure prescribed under O. 1, R. 8, C. P. C.

Judgement

RAMASWAMI, J. : This appeal is brought by a certificate on behalf of the plaintiff against the judgment and decree of the Orissa High Court, dated November 22, 1961.

2. In the suit which is the subject-matter of this appeal the plaintiff alleged that his ancestor - Dayanidhi Mahapatra - constructed a temple out of his own funds and established a family deity and made endowments for the maintenance of Seba-Puja of the deity. After the death of Dayanidhi the plaintiff became the Manager and Shebait of the family deity. The case of the plaintiff was that the temple and the endowments were never dedicated to the public nor had the public any kind of right in the temple or the endowed properties, but that respondent No. 1, acting under the provisions of S. 49 of the Orissa Hindu Religious Endowment Act (hereinafter referred to as the Act ) realised a sum of Rs. 386 as the annual contribution from the plaintiff. Consequently Sri Baman Mahapatra filed an application under S. 64 (1) of the Act for a declaration that the temple in question was a private one and did not fall within the purview of the Act. On November 1, 1953, respondent No. 1 rejected the contention of the plaintiff and declared the temple as a "public excepted temple" within the meaning of S. 6 (5) of the Act and appointed members of the plaintiff s family as the hereditary trustees. Thereafter Sri Baman Mahapatra filed a suit in the Court of Subordinate Judge, Puri, under S. 64 (2) of the Act for a declaration that the order passed by respondent No. 1 was illegal and should be set aside. Respondent No. 1 filed a Written Statement in that suit and after hearing the evidence on behalf of both the parties the Subordinate Judge held that the temple was a private temple belonging to the family of the plaintiff and defendants No. 2 and 3 and not a public excepted temple as erroneously held by respondent No. 1 in his order, dated November 1, 1953. Aggrieved by this judgment respondent No. 1 filed an appeal before the Orissa High Court which allowed the appeal on the preliminary ground that the suit was not maintainable as the plaintiff had not impleaded the public in accordance with the requirements of O. 1, R. 8 of the C. P. C. The High Court took the view that the omission to implead the public in a suit under S. 64 (2) of the Act was fatal and the suit as framed was, therefore, not maintainable and should be dismissed. In taking this view the High Court followed its previous decision in Padma Charan v. Commr., Hindu Religious Endowments. Orissa ILR (1961) Cut 183.

3. The question of law involved in this appeal is whether the High Court is right in its view that in a suit brought under S. 64 (2) of the Act the public should be impleaded as necessary parties under O. 1, R. 8 of the C. P. C.

4. Section 6 (13) of the Act defines a "temple" as "a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any Section thereof, as a place of religious worship". Section 6 (5) defines an "excepted temple" to mean and include "a temple the right of succession to the office of trustee or the offices of all the trustees (where there are more trustees than one) whereof has been hereditary, or the succession to the trusteeship whereof has been specially provided for by the founder".

5. Section 64 of the Act states:

"64. (1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the commissioner.

(2) Any person affected by a decision under sub-s. (1) may, within one year, institute a suit in the Court to modify or set aside such decision; but subject to the result of such suit, the order of the commissioner shall be final."

6. The right of instituting a suit conferred by S. 64 (2) on any person affected by the decision of the commissioner is a statutory right an