Right of holding lighted torch not a right of civil nature.

The respondent herein filed a suit in the Court of the District Munsiff of Tenali for a declaration that they have exclusive right to hold the lighted torch, Sannidhikola, inside the chariot during the Radhotsavam of Sri Agasthis-waraswami at Nandivelugu and for a permanent injunction restraining the defendants from interfering with their right. The basis of the suit was that, ever since the inauguration of the car festival, the ancestors of the plaintiffs and the plaintiffs have been exercising exclusive right of holding the lighted torch inside the chariot and that this right was being exercised till they were obstructed by the defendants in the year of 1945.

The suit was resisted by the defendants, who are the trustees of the temple mainly on two grounds. The exclusive right of the plaintiffs to hold the Sannidhikola was denied and it was also pleaded that the suit was not cognisable by a civil Court as the right claimed related only to a religious honour or dignity.

The trial Court, while holding that the plaintiffs have proved their exclusive right to hold the lighted torch, though for a few years before the institution of the suit they did not exercise this right, dismissed the suit on the ground that the right claimed by them was a mere religious honour and, as such, could not be enforced in a civil Court. On appeal, the Subordinate Judge, while confirming the judgment of the Court of the first instance with regard to the right of the plaintiff to hold the lighted torch, reversed it on the point whether the right claimed was not cognisable by a civil Court. In the opinion of the lower appellate Court, the right to hold the lighted torch can be deemed to be attached to a service or an office and that it was, in any event, a mode of worship, which could be enforced through a Court of law. In the result, he decreed the suit.

The defendants, who are dissatisfied with this judgment of the Subordinate Judge, have preferred this second appeal. In this appeal, the conclusion of the learned Subordinate Judge is challenged by Mr. Sankar Rao for the appellants as being erroneous. He urges that the view of the lower appellate Court that the right to hold the lighted torch inside the chariot is one that is attached to a service or an office is not correct and secondly that the lower appellate Court erred in holding that it was a mode of worship when the plaintiffs did not seek to enforce the right as a mode of worship.

The sole question for determination in the second appeal is whether the right claimed is one that could be agitated in a civil Court. To appreciate this question, it is necessary to refer to the terms of section 9, Civil Procedure Code. Section 9 of the Code of Civil Procedure lays down that

“the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.”

I have, therefore, to see whether the present suit is a suit of a civil nature within the meaning of section 9 of the Code of Civil Procedure. As I have already stated, the lower appellate Court rests its decision on two grounds (i) that it is a right attached to a service or office and (ii) that it is a mode of worship. First T will dispose of the second ground of decision as it does not present any difficulty. It must be observed that the plaintiffs did not claim the right as a mode of worship. They stated categorically that it was an office to which they have been entitled from time immemorial. This question was not raised in the pleadings nor was an issue raised about it. So, the lower appellate Court could not base its judgment on a ground, which was not raised in the pleadings. It is, therefore, unnecess