Maintainability of the suit filed for setting aside order of Commissioner.

Plaintiff is the appellant. Defendants 1 to 6, 8 to 10, 12 to 17, 19, 22 and 24 to 26 are the respondents. 21st respondent has been impleaded in the appeal.

2. According to the plaintiff there is an established usage to bring Sri Vedantha Desikar to Adhyayana Mandapam of Lord Ranganatha on the days of Yugathi, Deepavali, Kanu, etc and on Tirunakshathram day into the sanctum sanctorum of Lord Ranganatha with Vadakalai mark and with all paraphernalia like Vadakalai Namam, Pathram, Vazhithirunamam, etc. In order that the established usage is followed in the temple, the plaintiff made an application to the trustees of Sri Ranganatha Swami Devas-thanam to take Sri Vedantha Desikar idol to worship Lord Ranganatha on the occasions mentioned above with the Vadakalai mark on his fore-head. The trustees imposed a condition that the idol should bear only the Thenkalai mark on His fore-head. Thereafter, the plaintiff filed an application before the Deputy Commissioner, H.R. & C.E., Department, to permit and follow the established usage while taking the idol of Sri Vedantha Desigar with all Vadakalai paraphernalia for Mangalasasanam on the Thirunakshatram day into the sanctum sanctorum of Lord Ranganathar. The Deputy Commissioner passed an order that the established usage was to take Sri Vedantha Desikar to the sanctum sanctorum of Lord Ranganathar only with the Thenkalai mark. The appeal to the Commissioner, H.R. & C.E. Department, having proved futile, the plaintiff filed the suit under section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, Act 22 of 1959 (hereinafter referred to as the Act) for cancelling the order of the Commissioner.

3. On a preliminary objection that the suit is not maintainable without a notice under section 80, Civil Procedure Code, the trial court held that the suit is to set aside the order made by a public officer, namely, the Commissioner, H.R. & C.E., Department, in respect of an act done in discharge of his official duty and such a suit without the issue of notice under section 80, Civil procedure Code, is not maintainable and on this finding, the suit was dismissed with costs of defendants 1 and 2. Against this-decree and judgment of the trial Court, the plaintiff has preferred the present appeal.

4. Learned counsel for the 2nd defendant contended that a notice under section 80, Civil Procedure Code, is necessary before a suit can be filed against the 2nd defendant. Learned. counsel for the plaintiff pointed out that the 2nd defendant has been impleaded as representing Sri Kanganatha-swamy Devasthanam and not in his individual capacity. Now that the Executive Officer has been impleaded as representing the Devasthanam, no notice is necessary.

5. Relying on the Bench decision of this Court in Lakshmana Shah v. Commissioner, H.R. & G.E., (1971) 2 M.L.J. 495: 84 L.W. 828: A.I.R. 1972Mad. 319 and Santhana-gopala Chettiar v. Seetharama Chettiar, (1974) 1 M.L.J. 215 and also a decision of a decision of a Single Judge in Commissioner, H.R. & C.E. v. E.V. Kacheri-chamy (1981) 2 M.L.J. 375) the learned counsel for the appellant contended that no notice under section 80, Civil procedure Code, is necessary for a statutory suit filed under section 70 of the Act. On the other hand, learned counsel for the contesting respondents, relying on a decision of the Supreme Court in S.D.G. Pandarasannidhi v. State of Madras, (1965) 2 M.L.J. (S.C.) 167: (1965) 2 An. W.R.(S.C) 167: (1965) 2 S.C.J. 711: (1965) 3 S.C.R. 17: A.I.R. 1965 S.C. 1578 and a decision of this Court in Province of Madras v. Vikrama Deo, (1943) M.W.N. 56: (1943) 1 M.L.J. 53: 56 L.W. 50: A.I.R. 1943 Mad 284 as well as a decision of the Bombay High Court in Ebrahimbhai v. State, A.I.R. 1975 Bom. 13 contended that the Commissioner, while functioning under the Act, functions only as a Public Officer or Government and that therefore, section 80, Civil Procedure Code, is attracted when a suit is filed against a Public officer in respect