Issue of maintainability of suit to be heard along with suit.

First defendant in O.S.No.346 of 1996 on the file of the Additional District Munsif, Cuddalore, is the revision petitioner.

2. Plaintiffs filed a suit for the following reliefs:

“(1) declaring that plaintiff are entitled to the rights and honours details in Schedule ‘B’ to the plaint,

(2) restraining the defendants, there men, agents or any person claiming under them, by an order of permanent injunction from in any manner interfering with the plaintiffs rights and honours detailed in schedule ‘B’ to the plaint or in the alternative, for mandatory injunction directing their implementation,

(3) directingthe 1st defendant to plaintiffs Rs.10,000 towards damages with interest at 12 per cent per annum from the date of suit till realisation,

(4) directingthe defendant to pay plaintiffs the cost of this suit, and

(5) grantingsuch other reliefs as are deemed fit.”

3. According to the plaintiffs, their family is the oldest one living in Thiruvehindrapuram and has certain unique rights and honours as described in detail in ‘B’ Schedule to the plaint and these rights are attached to them for at least 500 years. According to them, the rights and honours are being enjoyed by them by virtue of their office and title of ‘Sripadam’ conferred on them by the temple authorities many centuries back. According to them, plaintiffs is the only one described as ‘Sripadam’ in the entire area. In view of the office enjoyed by their family, Devasthanam has granted many lands to the family. According to them, the religious rights and ceremonies in the temple are done only in consultation with the plaintiffs.

4. In ‘B’ schedule to the plaint, plaintiffs have described the various honours, which they are entitled to. The grievance of the plaintiffs is that they are now prevented from exercising those rights and for various reasons stated in the plaint, plaintiffs entitled to make use of those rights.

5. In the written statement filed by the petitioner, he denied the right of the plaintiff and also contended the suit itself is not maintainable. According to him, the suit is barred under provisions of H.R. & C.E. Act and the rights claimed is not of civil nature. It is further contended that since the plaintiffs are claiming only honourary rights attached to the religion, the same could not be enforced in a civil court as if it is a civil right. He has also taken other factual contentions, which are not relevant for the purpose of this case and hence not extracted.

6. The reason for filing this revision is, petitioner filed I.A.No.2125 of 1999 before the lower court, requesting that the maintainability of the suit will have to be heard as a preliminary issue. According to the defendant, suit is barred under Sec.9 of the Code of Civil Procedure and the plaintiffs are not having a civil right to enforce the rights claimed in the plaint. He wanted the plaint to be rejected under O.7, Rule 11 of the Code of Civil Procedure.

7. The same was seriously opposed by the plaintiffs and by the impugned order, the lower court held that the maintainability of the suit also, will be decided along with the suit and dismissed the application. The same is challenged in this revision under Sec.115 of the Code of Civil Procedure.

8. Heard both sides.

9. Accordingto the learned counsel for the petitioner, on mere reading of the plaint will show, the suit as framed is not maintainable and the same is liable to be rejected at the threshold. Counsel submitted that merely issues have been suggested or the evidence are began, the jurisdiction of the court is not taken away to decide a preliminary issue. It is argued that if by deciding preliminary issue, if the suit itself could be disposed of an precious time of the court should not be wasted in taking evidence, which becomes irrelevant.

10. As against the said contention, learned counsel for the respondents submitted that the lower court has only postponed the decision and there is no urgency in hearing the maintai