The Assistant
Commissioner, Hindu Religious & Charitable Endowment Department & Ors.
R.F.A. No. 356 of
2012
Decided
On:11-Oct-2012
For Petitioner: K.
Ramachandran, P. Ramachandran & S. Jayasree
For Respondents: R.
Lakshmi Narayanan (SC)
J U D G M E N T
K. Harilal, J.
i) Whether there is
any inconsistency between
Sections 3 and 4 of the Kerala High Court Act
and
Sections 12 and 13 of the Kerala Civil Courts Act
in the determination of
Forum of appeals for decrees and orders from suits of Subordinate Judge's Court
and where the amount or value of the subject matter of the suit is below two
lakhs Rupees?
ii) Whether the
High Court has 1st appellate jurisdiction invariably against all decrees from
all Subordinate Courts relating to the matters dealt with
Madras Hindu
Religious and Charitable Endowments Act 1951
These are general
issues arise recurrently before this Court, and which we resolve through this
Judgment.
1. This appeal is
directed against decree and judgment passed in O.S.No.110/2007 on the files of
the Sub Court, Tirur. The appellant is the plaintiff in a suit for declaration
that the suit temple known as 'Kallarmangalam Vishnu temple' is a private
temple belonging to the plaintiff's Mana by name 'Kallarmangalam Mana' and also
for consequential injunction against the defendants. In the partition of
thavazhi, the suit temple was set apart in favour of plaintiffs Mana and ever
since plaintiff's Mana is the Ooralar of the suit temple. The suit temple is a
private temple and public has neither right nor any kind of possession over the
suit temple. But at the instigation of an enimical neighbour, Sub Divisional
Magistrate began to treat the suit temple as a public temple. This prompted the
plaintiff to file a petition before the Government; but without proper enquiry,
found that the suit temple is a public temple, against the true facts. In fact
it was mainly on the basis of a list of temples published by the 2nd respondent
including and treating 'Kallarmangalam temple' as a public temple. Actually
there were more than one temple for the plaintiff's Kallarmangalam Mana. But
the list published by the 2nd respondent Commissioner does not say which temple
of Kallarmangalam Mana is treated as public temple. Against the Government
order, the plaintiff's predecessor filed O.P.No.19236/1997 before this court.
On the death of the plaintiff's predecessor, the appellant herein was impleaded
as additional petitioner. By judgment dated 2/2/2007, this Court dismissed of
the O.P. holding that the petitioner has to file a civil suit for getting a
declaration that the suit temple is a private temple. Consequently, the present
suit was filed by the appellant before the Sub Court, Tirur under Order VII
Rule 1 and Section XXVI of the Code of Civil Procedure. But the court below
without understanding the legal principles involved and factual situation,
dismissed the suit. Aggrieved by the impugned decree and judgment, this appeal
is filed on various grounds.
2. The learned
counsel for respondents 1,2,4 and 5 herein raised a preliminary objection
contending that this appeal is not maintainable before the High Court and it
ought to have been filed before the District Court under Section 13(1) of the
Kerala Civil Courts Act 1957, since the appeal is filed against a decree which
passed in a suit where the value of the subject matter is below 2 lakhs rupees.
3. We heard Shri
K.Ramachandran, the learned counsel for the appellant and Shri Lakshmi
Narayanan, the learned counsel for the respondents. Broadly, the point that
arises for consideration is whether the appeal is maintainable before the High
Court? Firstly, the counsel for the respondents pointed out that the decree
appealed against was passed in a suit, where the value of the subject matter is
Rs.1,01,000/- only. After the enhancement of pecuniary jurisdiction of the
District Court upto 2 lakh by the amendment to Section 13 of the Kerala Civil
Courts Act with effect from 27/3/1996, no appeal against a decree where value
of the subject matter of the suit does not exceed 2 lakh rupees, will lie
before the High Court. Therefore, the appeal ought to have been filed before
the District Court under Section 13(1) of the Kerala Civil Courts Act. Per
contra, the learned counsel for the appellant pointed out that according to
Sections (3)13(b) of the Kerala High Court Act, 1958, an appeal from an
original decree or order in any suit or other proceedings, where the amount or
value of the subject matter of the suit or other proceedings does not exceed
one lakh rupees alone would lie before the Single Bench of this Court.
According to Section 4(2) of the High Court Act an appeal from a decree or
order of a civil court except those coming under Section 3 would lie before the
Bench of two judges of the High Court. Even though Section 13(1) of the Civil
Courts Act was amended enhancing the pecuniary jurisdiction of the District
Court upto Rs.2 lakhs, no corresponding amendment was made in the High Court
Act. In this appeal value of the subject matter of the suit from which this
appeal arose is Rs. 1,01,000. Therefore, this appeal would lie before the
Division Bench of this Court, on a conjoint reading of Sections 3 and 4 of the
High Court Act.
4. Then the
question to be decided is
Whether an appeal against a decree from an original
suit where value of the subject matter is below Rs.2 lakhs, would lie before
the High Court, under Sections 3 (13) (b) and 4 of the High Court Act after the
amendment to Section 13 of the Civil Courts Act, enhancing pecuniary
jurisdiction of the District Court to Rs.2 lakh.?
To put it differently,
Whether
there is any inconsistency in the determination of pecuniary jurisdiction under
Sections 12 and 13(1) of the Civil Courts Act and Sections 3 (13(b) and (4) of
the High Court Act ?
Sections 12 & 13(1) of the Civil Courts Act as amended
on 23-7-1996 are extracted below:
"12. Appeal
from decrees and orders of District Court or Subordinate Judge's Court.-
Save
as provided in S.13 regular and special appeals shall, when such appeals are
allowed by law, lie from the decrees or orders of a District court or a
subordinate Judge's Court to the High Court."
"13. Appellate
jurisdiction of District Court and Subordinate Judge's Court,-
(1) appeals from
the decrees and order of a Munsiff's court and where the amount, or value of
the subject matter of the suit does not exceed (two lakhs rupees) from the
original decrees and orders of a Subordinate Judge's court shall, when such
appeals are allowed by law, lie to the District Court."
Section 3 (13)(b)
and 4 of the Kerala High Court Act reads as follows:
"3. Powers of
Single judge:-
The powers of the High Court in relation to the following
matters may be exercised by a single Judge.
(13) An appeal-
(b) from an
original decree or order in any suit or other proceeding, where the amount or
value of the subject matter of the suit or other proceeding does not exceed
(one lakh rupees)."
Section 4:
Power of a Bench of two Judges:-
The powers of the High Court in relation to the
following matters may be exercised by a Bench of two Judges, provided that if
both Judges agree that the decision involves a question of law they may order that
the matter or question of law be referred to a Full Bench:-
2. An appeal-
(a) from a decree
or 'order of a Civil Court, except those coming under Section 3;"
5. On an analysis
of High Court Act, it could be seen that the object of the High Court Act inter
alia is to make provisions regulating the business and the exercise of the
powers of the Single Bench, Division Bench of two Judges and the Full Bench of
the High Court; whereas the object of the Kerala Civil Courts Act 1957 is to
consolidate and amend the laws relating to establishment, constitution and
jurisdiction of Civil Courts in the State of Kerala, Subordinate to the High
Court of Kerala. Therefore, the determination of the forum for filing the civil
suit and appeals therefrom is governed by the Civil Courts Act and the power of
Single Judge and Division Bench in civil matters is determined and governed by
the Kerala High Court Act. In short Civil Courts Act determines the Forum of
Appeal from original decree: whereas the High Court Act regulates business and
exercise of powers of different benches within the High Court. If an appeal
lies in the High Court as per Section 12 of the Civil Courts Act, whether the
appeal should be heard by a single Bench or Division Bench is a matter to be
decided by Sections 3 and 4 of the High Court Act.
6. Sections 9 to 13
in Part III of the Civil Courts Act deals with "jurisdiction",
Section 12 of the Kerala Civil Courts Act deals with appeals to High Court from
decrees and orders of District Court and Subordinate Judge's courts. Section 12
of the Kerala Civil Courts Act is the Principal Section which determines and
regulates appeals to High Court, not any of the Sections of High Court Act.
According to Section 12, Save as provided in Section 13, regular and special
appeals from decrees or orders of a District Court or a Subordinate Judge's
Court shall lie to the High Court.
Section 13 deals with appellate jurisdiction
of District Court and Subordinate Judge's Court.
Before 27-3-1996, the
pecuniary jurisdiction of the District Court was upto Rs.25,000/- only. But by
the Civil Court Amendment Act, 1996, with effect from 27-3-1996 twenty five
thousand is enhanced to Rs.2 lakhs. The expression 'shall' is used in Sections
12 and 13 of the Civil Courts Act and that itself shows the mandate of the
legislature. As per Section 12, appeals to High Court from degrees and orders
of Subordinate Judge's Court are made subject to enhanced pecuniary limit under
Section 13(1). Therefore after 27/3/1996 all appeals from Subordinate Judge's Court
where the amount or value of subject matter does not exceed Rs.2 lakhs will lie
before the District Court alone, not before the High Court. The first question
which we have referred above is answered accordingly. In short, Sections
3(13)(b) and (4) of the Kerala High Court Act and Section 13 of the Kerala
Civil Court Act are neither concurrent nor repugnant. But these sections are
operating for different purposes in its area of operation and there is no
inconsistency at all.
7. We are in
agreement with the decision reported in
Andrew Vs. Jos, 2003 (2) KLT 1074
and
Ambili Vs. Federal Bank, 2006 (4) KLT 65
wherein this Court held that the
determination of Forum of Appeal on the basis of pecuniary jurisdiction is a
matter absolutely within the domain of the Kerala Civil Courts Act and if
valuation does not exceed two lakh rupees, necessarily the appellant has to
approach the District court.
8. The learned
counsel for the appellant cited decision reported in
Mary Vs. Pappu, 2001 (1)
KLT 12
and contended that in that decision there is a finding that amendment of
Civil Courts Act enhancing jurisdiction of District Court cannot by itself
affect jurisdiction conferred by Sections 3 and 4 of the High Court Act.
Therein, a review petition was filed after the dismissal of appeal and a
contention was raised that by virtue of amendment of the Civil Courts Act,
there is an implied repeal of Kerala High Court Act leading to the position
that all the appeals against original decree have now to be heard by a Single
Judge and they cannot be heard by a Division Bench.
Repelling the above
contention, the Division Bench of this Court rightly held that a litigant has
no right to say how many Judges should hear his case and amendment of Kerala
Civil Courts Act enhancing jurisdiction of District Court cannot by itself
affect jurisdiction conferred by Sections 3 and 4 of the High Court Act. Thus
this decision which was taken on different facts in a different perspective
will not help the appellant herein. But this decision fortifies the view, which
we have taken now that Kerala Civil Courts Act and Kerala High Court Act
operate in different fields.
9. Coming to the
instant case, jurisdictional valuation of the Original Suit is 1,01,000/- only.
Therefore, this appeal would lie before the District Court only. We accept the
first point argued by the counsel for the respondents.
10. The next
question to be considered is
Whether First Appeal would lie before this Court
under Section 62 of the Madras Hindu Religious and Charitable Endowment Act,
1951 (in short H.R & C.E.Act).
Answer to this question depends upon the
pleadings and the reliefs sought for in the original suit from which the decree
appealed against was passed.
We have examined the pleadings and reliefs sought
for in the plaint.
11. The contention
raised by the counsel for respondent was that an appeal filed under Section
62(2) against decree from an original suit filed under Section 62(1) of the
H.R. & C.E. Act alone will lie before this Court. In the instant case the
original suit was filed under Section XXVI and Order VII Rule 1 of the C.P.C.
and this appeal is filed under Section 93 and Order XLI Rules 1 & 2 of the
Code of Civil Procedure and not under Section 62 of the H.R.& C.E. Act. No
order passed under Chapter V of the H.R & C.E Act was challenged in the
suit. The right to file an appeal directly to High Court is granted to an
aggrieved person who challenges the decree from an original suit filed under
Section 62(1). Per contra, the learned counsel for the appellant submitted that
the original suit was filed under the direction of this Hon'ble court in the
judgment passed in O.P.19236/1997 of this Court. Actual challenge was against
the order passed by the Government rejecting the claim of the petitioner that
the suit temple is a private temple. Therefore, an appeal can be filed directly
before this court, invoking Section 62(2) of the H.R.& C.E.Act.
12. Here,
The suit
is one for a declaration that the suit temple is a private temple and not a
public temple.
So, the question to be considered is
Whether an appeal from an
original suit for declaration that the suit temple is a private temple and not
a public temple allegedly coming under Madras Hindu Religious and Charitable
Endowment Act, 1951 would lie before the High Court under Section 62 (2) of the
above said Act?
This question is to be dealt with reference to the pleadings
and reliefs sought for in the original suit and the scope and extent of
Sections 57, 58, 60, 61 and 62 in Chapter V of the HR & CE Act, 1951.
Broadly,
Chapter V deals with 'Enquiries'.
Section 57 deals with enquiries and decisions
thereon, on disputes with respect to matters specifically enumerated under
Section (a) to (g) of the above Section.
Section 58 deals with power of the
Deputy Commissioner to frame scheme. Section 59 deals with appropriation of
funds.
Section 60 deals with determination and application of properties and
funds of defunct religious institutions.
Section 61 says that any person
aggrieved by any order passed by the Deputy Commissioner under any of Sections
from 57 to 60 may appeal to the Commissioner.
Section 62 deals with suits and
appeals therefrom to High Court.
Section 62 is extracted below:
62. Suits and
appeals.- (1) Any party aggrieved by an order passed by the Commissioner-
(i) under Section
61, sub-section (1) or sub- section (2), and relating to any of the matters
specified in Section 57, Section 58 or Section 60; or
(ii) under Section
57, Section 58 or Section 60 read with sub-section (l)(a),(2),or (4)(a) of
Section 19 may, within ninety days from the date of the receipt of such order
by him, institute a suit in the court against such order; and the Court may
modify or cancel such order, but it shall have no power to stay the
Commissioner's order pending the disposal of the suit.
(2) Any party aggrieved
by a decree of the Court under sub-section (1) may, within ninety days from the
date of the decree, appeal to the High Court.
13.
Going by
Section 62(1), it could be seen that the right to file a suit is provided under
the Act to any party aggrieved by the order passed by the Commissioner under
Section 61 (1) relating to any of the matters specified in clauses (i) and (ii)
of Sub-Section 1 of Section 61 only. Similarly, it could be seen that the right
to file an appeal to High Court is directly provided under Section 62(2) to any
party who is aggrieved by a decree from an original suit, challenging any of
the order passed by the Commissioner under section 61 relating to any of the
matters specified under Clause (i) and (ii) of Sub section (1) of Section 62 of
the HR & CE Act. This is a special privilege granted to any party who is
aggrieved by decree from a suit challenging certain specified orders as stated
above passed under Chapter V by the Commissioner. So such decrees passed under
Sub section (1) of Section 62 get an exemption from provisions governing
determination of jurisdiction under the Civil Courts Act; whereas a person
aggrieved by the decree from a civil suit relating any matter, other than
specified matter under Clauses (i) and (ii) of Sub section (1) of Section 62
will not get such privilege of the right of appeal directly to the High Court.
At this juncture, it is pertinent to note that Section 93 of the HR & CE
Act bars civil suits in respect of matters for which a provision has been made
in the Act; except in conformity with the Sections of the Act. Section 93 does
not bar suits under general law which do not fall within the orbit of any of
the specified under Section 62(1) of the Act.
14. Therefore, in
the instant case, the question to be considered is
Whether the decree appealed
against was passed in an original suit instituted in respect of the matters
specifically provided under Section 62(1) of the Act.
Here, the suit was one
for a declaration that the suit temple is a private temple and not a public
temple. It is pertinent to note that the original suit was filed under Section
26, Order VII Rule I only. Similarly this appeal is filed under Section 93 and
Order XLI Rule 1 of the Code of Civil procedure. No order under Chapter V
passed by the Commissioner which was challenged or sought to be set aside in
the original suit. The order referred to in pleadings are an order passed by
the Assistant Commissioner under Section 41 and another order passed by the
Government confirming the finding that it is a public temple. Such orders do
not come under the purview of clauses (i) and (ii) of Section 62(1). Thus
decree appealed against was not from a suit instituted under Section 62 (1) of
the H.R & C.E Act. Consequently, no appeal can be filed directly to High
Court under Section 62(2) of the said Act. In short, no appeal will lie before
the High Court against a decree from original suit except decrees from original
suits filed under Section 62(1), with respect to matters dealt with clauses (i)
(ii) of Section 62(1). The Forum of Appeal of all other appeals will be
determined according to Kerala Civil Courts Act in the usual way.
15.
Going by
Chapter V of H.R & C.E.Act, neither the Deputy Commissioner nor the
Commissioner has the power to decide the question whether a temple is private
temple or public temple. We are confirming the view of this Court in
wherein this Court held that in view of Section 57 of the H.R.&C.E.
Act Deputy Commissioner has no power to decide the question whether a temple is
private or public? If that be so, certainly suit for a declaration that a suit
temple is a public temple also will go beyond the scope of Section 62(1) of the
Act and the appellant will not get the privilege of the right of direct appeal
to the High Court and the question is answered accordingly. We find that this
appeal is not an appeal under Section 62(2) of the HR & CE Act. Thus we are
inclined to accept second contention of the respondent also.
16.
The decree
appealed against was from a suit filed under General law invoking Order VII
Rule 1 and Section 26 C.P.C., which do not fall within the scope of Section
62(2) of the HR & C.E.Act. The appeal from such a suit must be amenable to
the jurisdiction to be determined under Kerala Civil Courts Act. The appeal is
not maintainable before this Court due to the lack of jurisdiction. The point
raised in this appeal is answered accordingly.
17.
The decree
appealed against was passed in an original suit, having jurisdictional
valuation of Rs. 1,01,000/- only. Necessarily the appeal ought to have been
filed before the concerned District Court, having appellate jurisdiction over
the court which passed the impugned decree.
18. The learned
counsel for the appellant contended that the original suit was filed according
to the direction of the High Court in the judgment passed in O.P.No.19236/1997
and cause of action of the suit arose when the High Court passed the Judgment.
We have gone through the judgment. That writ petition was filed seeking very
same reliefs as prayed for in the original suit. This Court dismissed that writ
petition and observed that it is for the petitioner to establish their claim of
private temple by adducing evidence before the civil court. We are of the
opinion that this observation does not mean or confer any special privilege to
file appeal before the court bypassing the jurisdiction provided under Civil
Courts Act. So we reject the above contention.
In the result the
Registry is directed to return the appeal. A copy of the decree produced in
this case shall also be returned after substituting photostat copy thereof. The
appellant shall file the appeal in the concerned District Court within 10 days
from today.
