Notice under Section 80 C.P.C. is mandatory for the maintainability of the suit under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

The 6th defendant-Executive Officer of Sri Kallalagar Devasthanam, Alagarkoil is the appellant. The suit by the 1st respondent-2nd plaintiff and the deceased 1st plaintiff is for declaration that the plaintiffs are entitled to keep undial in the Samayamandapam constructed by the plaintiffs ancestors for collections during Chitrai Festival and appropriate the said collections to themselves and for consequential permanent injunction against the defendants.

2. The 1st plaintiff died pending suit. His only heir was impleaded as the 7th defendant in the suit, who is the 7th respondent in this appeal. The said 7th respondent is not making any claim. The 2nd plaintiff alone pursued the suit claim.

3. The suit is admittedly under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ‘the Act’). Earlier, the plaintiffs sought the same relief before the Deputy Commissioner under S. 63(e) of the Act. But the said relief was negatived by the Deputy Commissioner. Subsequently, the Commissioner also confirmed the decision of the Deputy Commissioner. Hence the present suit was filed. The plaintiffs succeeded before the trial Court and the suit was decreed a s prayed for.

3 A Inter alia in the suit, there was also the issue, whether the suit is bad for want of notice under S. 80 C.P.C.?” The 8th defendant, who is the Commissioner, H.R. & C.E., Madras, in his written statement opposed the suit, also alleging that the suit without issuing notice under S. 80/C.P.C., was not maintainable. But the trial court held that no relief as such, was asked for against the 8th defendant (8th respondent herein) and that, therefore, no such notice was necessary.

4. Now, in the present appeal, the learned counsel for the 6th defendant-appellant argues that the Court below has erred in deciding this issue and that if I concurred with him on the said issue he need not argue the appeal on its merits. He points out that the injunction relief is also against the 8th defendant and that the trial court factually erred in stating that no relief was asked for against the 8th defendant. This contention of his, is correct and the trial court is factually in error since the injunction relief is undoubtedly against the 8th defendant also.

5. The learned counsel for the appellant further submits that in view of the latest decision of a Division Bench of this Court reported in Executive Officer, Arulmigu Ranganathaswami Devasthanam v. H.H. Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan and others 1 (which has held that notice under S. 80 C.P.C. is necessary even for the statutory suit under S. 70 of the Act), the present suit itself is not maintainable and has to be accordingly dismissed.

6. But, the learned counsel for the 1st respondent-2nd plaintiff submits that contrary to the above referred to 1989-1-L.W. 361, another Division Bench of this Court earlier held in Lakshmana Shah v. Commissioner, H.R.& C.E. 2 that such a notice under S. 801 C.P.C. was not necessary for the statutory suit under S. 70 of the Act and that, therefore, this question has to be referred to a Full Bench. He also submits that this appeal itself was not maintainable by the 6th defendant-Executive Officer when defendants 1 to 5, who are respondents 2 to 6 herein and who are the trustees of the temple in question, did not choose to prefer an appeal against the decree of the trial court. In other words, according to him, the 6th defendant-Executive officer has only to assist the said trustees in the administration of the temple and that the temple administration vests only with the said trustees and not with the said Executive Officer and so when the trustees have not chosen to prefer the appeal, the Executive officer cannot be considered as a person who could prefer this appeal But, without going into the question of the actual role played by the Executive Officer vis-a-vis the trustees in the Administration of the trust, I have no