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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J.
Chairman, Board of Trustees, Maniyoor Subramaniaswamy Temple – Petitioner
Versus
Malabar Devaswom Board – Respondent
W.P. (C) No. 18684 of 2016
Decided On : 18-03-2022
Madras Hindu Religious and Charitable Endowment Act, 1951 - Section 31, 57, 58, 59, 60, 61(2), 38, 95 - Hindu Religious and Charitable Endowment Act, 1951 - Section 57(e), 62 - Limitation Act, 1963 - Section 29 - Madras Hindu Religious and Charitable Endowment Rules - Rule 4 - Writ petition - Procedure and powers at inquiries under Chapters V and VI - Petitioner is Chairman, Board of Trustees of Maniyoor Sree Subramanya Swami Temple, a temple under control of first respondent Board and listed under religions institutions in terms of Section 38 of Madras Hindu Religious and Charitable Endowment Act, 1951 as amended.
Finding of the Court:
It was held that effect of said section is only to render applicable provisions of Limitation Act for computation of period of limitation - Computation of period of limitation is contained in Sections 12 to 24 in Part III of Limitation Act, 1963 - By no stretch can Section 5 be treated as a provision dealing with computation of period of limitation - It is only after a computation of period of limitation, it could be found whether an application or appeal has been filed after expiry of prescribed period in which case alone question of extension of period under Section 5 of Limitation Act will arise - In aforesaid circumstances, it has to be held that Deputy Commissioner while passing Ext.P5 order did not have power to condone delay and to that extent finding of Commissioner to Ext.P6 has to be upheld - Learned counsel for petitioner seeks permission to challenge Ext.P6 order by way of a suit under Section 62 of Madras Hindu Religious and Charitable Endowment Act, 1951 - Liberty is granted.
Result: Writ Petition is dismissed.
JUDGMENT :
1. The petitioner is the Chairman, Board of Trustees of Maniyoor Sree Subramanya Swami Temple, a temple under the control of the first respondent Board and listed under the religions institutions in terms of Section 38 of the Madras Hindu Religious and Charitable Endowment Act, 1951 (for short ‘the Act’) as amended. One Padmavathy Varisyar, the mother of respondents 5 and 6 filed OA 19 of 2000 before the third respondent under Section 57(e) of the Hindu Religious and Charitable Endowment Act, 1951 for short HR&CE Act), claiming that her family was doing kazhakam in the temple as the right of kazhakam was vested with the family of her husband, K.M. Kunhirama Variyar of Vadakke Veedu. It is further stated that K.M. Kunhirama Variyar did not get wages for the Kazhakam work done and that his arrears of salary and the right of kazhakam on the death of K.M. Kunhirama Variyar devolved upon her and on that basis she was doing the Kazhakam work from September 1986 to December 1994, for which also she was not paid the salary. It is further alleged that due to her ill health, her son, the 5th respondent performed Kazhakam and thus he sought for a declaration that the right of kazhakam in Maniyoor Sree Subramanya Swami Temple had to be vested with Vadakke Veedu family and that the arrears due to her husband from 10.09.1986 to 05.09.1990 and also the salary due to her from 6.9.1990 to 31.12.1994 had to be paid to her with interest.
2. In the proceedings as referred above, the petitioner herein did not enter appearance and was set ex-parte. The third respondent answered all the issues in favour of the applicant and the original application was allowed by order dated 17.11.2001, marked as Ext.P1 in the writ petition. Padmavathy Varisyar died on 18.12.2005 and the 6th respondent herein filed a W.P. (C) No. 8448 of 2006 before this Court seeking a direction to implement Ext.P1 order and it was only on receipt of notice from this Court that the petitioner came to know about the passing of ExtP1 order. The petitioner then filed an application, I.A. No. 5/2007 before the third respondent to set aside the ex-parte order, Ext.P1, along with an application to condone the delay in filing the said application to set aside the ex-parte order. These applications were dismissed for default on 10.11.2010. Thereafter, an application for restoration was filed and the said application was allowed restoring I.A. No. 5/2007 in O.A. No. 19/2000.
3. Challenging the said order, respondents 5 and 6 herein filed an application before the 2nd respondent as A.S. No. 10 of 2012, which was allowed setting aside the order of the third respondent in I.A. No. 5 of 2007 and directed the respondent to reconsider I.A. No. 5 of 2007 in accordance with law. After reconsideration as above, the third respondent by order dated 15.05.2013 allowed I.A. No. 5 of 2007 by setting aside the ex-parte order, Ext.P1. The order dated 15.05.2013, Ext.P2 was challenged by respondents 5 and 6 before the second respondent by filing an appeal petition, AP No. 7 of 2013. The said appeal petition was dismissed as respondents 5 and 6 herein, the appellant therein did not appear, and thus the appeal was dismissed for default by order dated 6.5.2014, Ext.P3.
4. Thereafter, respondents 5 and 6 filed an application to set aside the order of dismissed for default and restore the same on the file along with an application to condone the delay in filing the said application. These applications were marked as Exts.P4 and P5. The second respondent considered the appeal and allowed the same by order dated 3.12.2014, whereby, the order passed by the third respondent, Ext.P2 was set aside restoring Ext.P1. The said order dated 03.12.2014 is marked as Ext.P6 in the writ petition and the petitioner impugns the same.
5. A counter affidavit has been filed by the 6th respondent on behalf of the 5th respondent as well. It is stated that thereafter, Kunhirama Variar was the hereditary kazhakam of the Sree Mani
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