Section 109 HR&CE Act excludes Limitation Act for temple property recovery suits entirely, including restoration post-dismissal.

PRAYER:- Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the judgment and decree passed in CMA.No.97 of 2015 on 04.03.2019 on the file of the Additional Judge-IV, City Civil Court, Chennai reversing the orders passed in I.A.No.13205 of 2013 in OS.No.4857 of 1997 on the file of the Assistant Judge-II, City Civil Court, Chennai by allowing the Civil Revision and confirming the Lower Court order and pass such other order.

For Petitioner(s): Mr.D.R.Sivakumar for Mr.S.D.Ramalingam For Respondent(s): R1 – Not ready in notice RR2 to 7 – Given Mr.S.Rameshkumar for R8

ORDER

Civil Revision has been filed challenging the judgment and decree passed in CMA.No.97 of 2015 on 04.03.2019 on the file of the Additional Judge-IV, City Civil Court, Chennai reversing the orders passed in I.A.No.13205 of 2013 in OS.No.4857 of 1997 on the file of the Assistant Judge- II, City Civil Court, Chennai.

2. Heard Mr.D.R.Sivakumar, learned counsel appearing on behalf of Mr.S.D.Ramalingam, learned counsel for the petitioner and Mr.S.Rameshkumar, learned counsel appearing on behalf of the eighth respondent.

3. The learned counsel for the Petitioner would submit that a suit filed by the Petitioner seeking a declaration that the sale deed executed by Respondents 1 to 7 herein, in favour of the 8th Respondent is null and void, and for other reliefs, was dismissed for default. The same was sought to be restored by taking necessary applications, which was also allowed by the Trial Court, but was set aside in appeal on the sole ground that the Petitioner had not filed an application to condone the delay in filing an application to set aside the order dismissing the suit for default.

4. He would submit that the Petitioner is a temple represented by its idol, and by application of Section 109 of the HR&CE Act, there is no limitation, as the Limitation Act has been excluded in cases where action have been initiated for recovery of property belonging to the temple. However, the appellate court, without appreciating Section 109 of the Act, had allowed the appeal by setting aside the order of restoring the suit on the ground that the application to condone delay had not been filed.

5. He would submit that the property originally belonged to the mother of the first Respondent, who had executed a will bequeathing the properties in favour of the temple, but life estate to the first Respondent and her children, who are Respondents 2 to 7was given with no right to alienate the properties, However Respondents 1 to 7 have alienated the property in favour of the 8th Respondent, which is void. Relying upon Section 109 , he would submit that recovery of the immovable property would also include all other proceedings arising out of such suit. Therefore, he prays this Court to set aside the order impugned and restore the suit.

6. Countering his arguments, the learned counsel appearing for the Respondent would submit that the suit was originally dismissed in the year 2007, and the application had been filed beyond the period of 30 days, which required an application to condone the delay. He would submit that the exemption, applies only to initiate proceedings. The interlocutory application to restore the suit had been filed only in the year 2013. For filing an application under Order 9, Rule 9, the law of limitation would have to be necessarily applied.

7. He would submit that further, the suit itself is without a cause of action, as the claim of the Petitioner is based upon a will which had hitherto not been probated. Without probate of the will, the Petitioner did