JUDGMENT: This appeal suit is directed against the judgment and decree dated 23.12.1983 rendered in O.S. No.183 of 1982 by the Court of Subordinate Judge, Villupuram hereby decreeing the statutory suit filed by the second respondent under Sec.70 of the H.R. & C.E. Act thereby praying for declaration to the effect that the suit temple is a private temple further setting aside the order passed by the Commissioner H.R. & C.E., Madras in A.P. No.35 of 1981, dated 16.11.1981 and for costs.

2. Today when the above appeal suit is taken up for consideration in the presence of the learned Special Government Pleader appearing on behalf of the H.R. & C.E. Department/ appellant and the learned counsel appearing for the respondents as well and with no representation made on the part of the first respondent. The learned A.G.P. appearing for the appellant after giving the brief history of the case on facts as to how the statutory suit came to be filed before the trial Court would stick to the legal point stating that over and above the order passed by the Commissioner H.R. & C.E. law permits for a statutory suit to be filed before the Court of competent jurisdiction within 90 days and in the case on hand the order of the Appellate Authority, the Commissioner had been passed on 16.11.1981 and the copy application had been made on 15.12.1981; that the copy was delivered on 24.12.1981 and the suit was filed on 19.4.1982 needless to point out that the suit is barred by limitation. But without an application being filed to condone the delay under Sec.5 of the Limitation Act explaining the reasons thereby and with due opportunity for the other party to contest the same a specific order has to be passed on enquiry held in the I.A. for condoning the delay and if it is allowed, the suit could be entertained, lest, there is no question of the very suit being entertained.

3. The learned counsel would further submit that a peculiar procedure has been followed in this case by the lower Court having bluntly entertained the suit and framing an issue to the limitation point has decided the same in favour of the petitioner, thereby condoning the delay thus validating the suit and then passing the judgment on merit in favour of the plaintiff, which is totally erroneous since the delay that has occurred in so far as the filing of the suit is concerned is covered by statutory provisions i.e., under Sec.5 of the Limitation Act and the same is not within the discretion of the Court whereas the Court is bound by the section and unless a separate order is passed on a specific I.A. filed with due opportunity for the otherside to contest the same and after enquiry disposing that application, the suit could not be numbered and therefore would exhort that at this score itself the suit becomes liable to be dismissed and without rejecting the very suit at the institution of the same, the lower Court has entertained the suit and has conducted the trial and decided the matter, which is totally erroneous and against the legal convictions and hence on this score itself the appeal has to be allowed setting aside the judgment and decree passed by the lower Court.

4. On the part of the learned counsel appearing for the second respondent, it would be submitted that the learned Judge has been pleased to consider the question of limitation by framing an issue on the legal point and to consider the same in para. 8 of the judgment and ultimately arrived at the conclusion to condone the delay that had occurred in the suit and therefore in view of the fact that he has got an excellent case on merit he would pray to the Court to validate the manner in which the delay had been condoned by the trial Court and to pass the judgment on merits.

5. The question of limitation in filing the suit is concerned it is covered by the Limitation Act which is meant for the purpose of covering such suits filed with delay particularly under Sec.5 of the said Act. The plaintiff knowing fully well that there

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