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2019 Supreme(Mad) 1419
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
The State of Tamil Nadu Rep. by the Secretary to Government, Chennai & Others - Petitioners
Versus
K. Shanmugavel Mudaliyar & Others - Respondents
Civil Revision Petition No. 1123 of 2014 & M.P. No. 1 of 2014 & Crl. O.P. No. 8674 of 2014
Decided On : 19-02-2019
For the Appearing Parties :M. Sricharan Rangarajan, Spl.G.P.(CS), T. Sai Krishnan, Advocate, P. Kritika Kamal, GA.
Headnote:
Civil Procedure Code,1908 – Sections 115, 115(1) and 151 - Order IX and XIX - Rules 1,2,3 and 13- Criminal Procedure Code,1973 - Section 482 - Limitation Act - Section 5 - HR & CE Act - Provide police protection to functioning as Managing Hereditary Trustee – Quash of Criminal - Defendants have not filed their written statement within time prescribed under statute - Therefore trial Court has thought it fit to set them exparte and passed exparte decree as prayed in suit - Meanwhile plaintiff also been agitating his right before Joint Commissioner HR & CE Department challenging his removal from trusteeship - After delay of days HR & CE Department has woke up from slumber and taken up an application in to set aside exparte decree passed along with application under Section 5 of Limitation Act to condone delay of days in filing their application under Order IX Rule 13 of C.P.C - Plaintiff had thought it fit that averments found in affidavit accompanying petition to condone delay is to be tested by examining deponent - Therefore he has filed a counter in application to condone delay and also an application under Order XIX Rule 1 of C.P.C to permit him to cross examine deponent then Joint Commissioner HR & CE Department - Trial Court took up application filed by and numbered it as - After hearing parties trial Court has allowed application and adjourned case for cross examination of Joint Commissioner HR & CE Department - Whether main suit or interlocutory application cannot be discriminated or classified - Whether exparte decree passed by trial Court can be allowed to sustain due to lapse of defendants not filing their written statement in time Whether lapses pointed put together can deprive idol of Temple and its Allied Temples deny of its right to protect its property on merits and allow exparte decree passed against it uncontested and loose valuable property worth several crores of rupees? - Held, In Court view it is right time to inform all government bodies their agencies and instrumentalities that unless they have reasonable and acceptable explanation for delay and there was bona fide effort there is no need to accept usual explanation that file was kept pending for several months/years due to considerable degree of procedural red tape in process - Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment - Condonation of delay is an exception and should not be used as an anticipated benefit for government departments - Law shelters everyone under same light and should not be swirled for benefit of a few - Core issue involved in this revision petition is that whether exparte decree passed by trial Court can be allowed to sustain due to lapse of defendants not filing their written statement in time for not filing application to set aside exparte decree in time not subjecting deponent for cross examination to prove content of affidavit and not filing any appeal against dismissal of their Section 5 application passed when present revision petition was pending - Whether lapses pointed put together can deprive idol of Temple and its Allied Temples deny of its right to protect its property on merits and allow exparte decree passed against it uncontested and loose valuable property worth several crores of rupees? This Court though fully convinced with some of legal submissions made by counsel appearing for respondent that on every score HR & CE Department has failed to protect interest of temple having seized of matter this Court cannot turn a nelson eye to issue before it and allow administration and properties of temple to be taken over by a third party based on exparte decree - Therefore prima facie though revision petition under Section 115 of C.P.C may not sustain as paren patriae this Court exercising superintendent power vested under Article 227 of Constitution of India it is bound to interfere in this list - Whenever a fact or statement in affidavit sought to be proved deponent has to prove same in manner known to law - For not filing application to set aside exparte decree in time - Criminal Original Petition Disposed of
ORDER :
(Prayer in C.R.P.No.1123 of 2014: Civil Revision Petition has been filed under Section 115 of C.P.C., praying to set aside the judgment and decree dated 10.07.2012 made in I.A.No.363 of 2011 in O.S.No.118 of 2009 on the file of Additional District Munsif, Alandur.
Prayer in Crl.O.P.No.8674 of 2017: Criminal Original Petition has been filed under Section 482 of Cr.P.C., praying to pass an order directing the third respondent to provide police protection to the functioning as Managing Hereditary Trustee to the petitioner temples and his life and limb for the enforcement of appropriate civil Court decree made in O.S.No.118 of 2009 District Munsif Court at Alandur in respect of decree and judgment on 05.11.2009 & 24.4.2014 in Pozhichallur Village, Alandur Taluk, Kancheepuram District, Chennai 600 074 by considering petitioner's complaint dated 05.02.2017.)
1. It is a classic case, where pedantic interpretation of law leading to undue delay without decision on merit.
2. K.Shanmugavel Mudaliyar, who was appointed as hereditary trustee by Hindu Religious and Charitable Endowment Department (in short “HR & CE”) of Arulmighu Agastheeswarar Temple and its Allied temples, was later found unfit by the HR & CE Department. So, he was removed from the said post. Aggrieved by the same, he has preferred a statutory appeal before the Joint Commissioner, HR & CE Department. However, he lost his appeal.
3. Meanwhile, he has thought fit that the temple, which was managed and administrated by the petitioner's forefathers, does not come within the purview of HR & CE Act. He has laid a suit in O.S.No.118 of 2009 against HR & CE Department arraying the Secretary to the Government, HR & CE Department as the first defendant, the Commissioner, HR & CE Department as the second defendant and the Joint Commissioner, HR & CE Department as the third defendant. In the said suit, he has prayed for declaration that the plaintiff's temple situated in the residential place Grama Natham S.No.210/2 as private land and not coming under the purview of the HR & CE Act and for permanent injunction restraining the third defendant and their subordinates from conducting any enquiry initiate by the third defendant against the plaintiff, till the character of institution is decided in the suit.
4. The defendants have not filed their written statement within the time prescribed under the statute. Therefore, the trial Court has thought it fit to set them exparte and passed exparte decree as prayed in the suit. Meanwhile, the plaintiff K.Shanmugavel Mudaliyar also been agitating his right before the Joint Commissioner, HR & CE Department challenging his removal from the trusteeship. After the delay of 237 days, the HR & CE Department has woke up from the slumber and taken up an application I.A.No.1069 of 2010 in O.S.No.118 of 2009 to set aside the exparte decree passed on 05.11.2009 along with the application under Section 5 of the Limitation Act to condone the delay of 237 days in filing their application under Order IX, Rule 13 of C.P.C.
5. The plaintiff K.Shanmughavel Mudaliyar had thought it fit that the averments found in the affidavit accompanying the petition to condone the delay is to be tested by examining the deponent. Therefore, he has filed a counter in the application to condone delay and also an application under Order XIX, Rule 1 of C.P.C., to permit him to cross examine the deponent P.Vasunathan, the then Joint Commissioner, HR & CE Department.
6. The trial Court took up the application filed by K.Shanmugavel Mudaliyar and numbered it as I.A.No.363 of 2011. After hearing the parties, the trial Court has allowed the application on 10.07.2012 and adjourned the case for cross examination of P.Vasunathan, S/o Pinna Thevar, Joint Commissioner, HR & CE Department to 23.07.2012.
7. It appears that HR & CE Department has filed a memo on 27.08.2012 stating that P.Vasunathan, Joint Commissioner has been placed under suspension and so, he cannot mount the witness box and su
