The revision petitioner/4th respondent/4th defendant has filed this civil revision petition as against the order dated 22.10.2008 in I.A.No.17871 of 2008 in O.S.No.7380 of 2008 passed by the learned VIII Assistant Judge, City Civil Court, Chennai in granting the relief of ad-interim injunction till 05.11.2008.
2.The trial Court, while passing orders in I.A.No.17871 of 2008 in O.S.No.7380 of 2008, has granted the relief of ad-interim injunction till 05.11.2008 and ordered notice to respondent by then, etc.
3.The learned counsel for the revision petitioner urges before this Court that the order of the trial Court in granting the relief of ad-interim injunction without assigning reasons are vitiated in law and that the trial Court should have been more cautious in interfering with the management of temple since the idol is a minor and its interest has to be safeguarded first and that the trial Court has erred in taking the suit to its file as the cause of action has arisen only in Sattur Taluk, Virudhunagar District and moreover, the trial Court has permitted the 4th respondent/petitioner/plaintiff to select a Court of his choice, which is against the principles of natural justice and that the order of the trial Court is without jurisdiction and in fact, a non-speaking order and further, the trial Court has exceeded its jurisdiction by entertaining the suit and granting an exparte interim order, which is against the orders passed in the writ petition by this Court of Madurai Bench and that the trial Court has not taken note of the fact that the 4th respondent/petitioner/ plaintiff has not approached the Court with clean hands and suppressed the orders passed in earlier proceedings and the trial Court has entertained the suit on presumptions and assumptions, detriment to the rights of the civil revision petitioner and therefore, prays for striking off the suit O.S.No.7380 of 2008 from the file of VIII Assistant Judge, City Civil Court, Chennai.
4.The learned counsel for the revision petitioner/4th respondent/4th defendant has brought to the notice of this Court that the Irukkangudi Mariamman Temple has 11 hereditary trustees and once in three years the election is conducted to elect a Managing Trustee and that the Trustees are at loggerheads and that in the order of the Writ Appeal Nos.338 and 339 of the 2005 filed by R.Ariram Poosari against the present revision petitioner-S.A.Rajendran Poosari and two others in para 2 to 8 it is observed as follows:
"2.R.Ariram Poosari filed Writ Petition No.4132/2005 before the learned Single Judge seeking to issue a writ of mandamus forbearing the Government of Tamil Nadu, Hindu Religious and Charitable Endowments Board, Chennai-25; the Joint Commissioner, Hindu Religious and Charitable Endowments Board, Sivagangai and the Executive Officer, Arulmighu Mariamman Temple, Irukkangudi, Satur Taluk from holding election to the post of Managing Trustee of presnt Board of Trustees of Arulmighu Mariamman Temple, Irukkangudi, Sattur Taluk, Virudhunagar District. One S.A.Rajendra Poosari has filed Writ Petition No.4837/2005 seeking to quash proceedings dated 6.5.2005 and 16.05.2005 of the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai in respect of an enquiry to decide his hereditary trustee statue as illegal. The very same S.A.Rajendra Poosari also filed W.P.No.5321/2005 praying for a writ of mandamus directing the Secretary to Government, HR and CE Department, Chennai to consider his representation along with 5 other hereditary trustees dated 14.05.2005 and appoint him as a fit person.
3.All the above writ petitions were heard by learned Single Judge and after finding that 11 persons including S.A.Rajendran Poosari, son of Arunachala Poosari are hereditary trustees of the said temple, directed the Commissioner, HR and CE Department or the person authorised by him to conduct the election and select one of the trustees as a Managing trustee. Further direction was issued to the Commissioner to complete the said exercise namely conduct of election within a period of three weeks from the date of order (29-7-2005). The learned Judge has also made it clear that the enquiry contemplated against any of the trustee shall go on and in case, if any one of the trustees is found guilty, it is open to the Commissioner of HR and CE., after election, to take action against the trustee/Managing trustee to remove him/them from the said post in accordance with law. Finally the learned Judge has permitted the parties to approach the Court if there is any difficulty in implementing the above directions. With the above observation and direction, all the writ petitions were disposed of. Against the above said common order, the present appeals have been filed by the said R.Ariram Poosari.
4.Heard Mr.S.Parthasarathy, learned Senior Counsel and Mr.G.R.Swmainathan, learned counsel for appellant; and Mr.Shanmughasundaram, learned senior counsel for S.A.Rajendran Poosari/1st respondent in W.A.No.338/2005 and 5th respondent in W.A.No.339/2005.
5.Mr.S.Parthasarathy, learned senior counsel and Mr.G.R.Swaminathan, learned counsel for the appellant, vehemently argued that inasmuch as some of the trustees, particularly S.A.Rajendran Poosari facing certain charges and enquiries are pending, the direction of the learned Single Judge to conduct election and select one of the trustees as Managing Trustee cannot be sustained. They also contended that the above direction is beyond the relief prayed in the writ petitions. On the other hand, Mr.Shanmughasundaram, learned senior counsel for the contesting party namely S.A.Rajendran Poosari, after taking us through the various orders, proceedings of the Civil Court as well as HR and CE Department, would submit that S.A.Rajendran Poosari succeeded his father-Arunachala Poosari as a hereditary trustee of the temple in question and in the light of abundant materials for the same, the learned Judge is perfectly right in issuing direction for election of Managing Trustee from among the trustees. We considered the rival contentions.
6.In order to strengthen his argument and disprove the allegations made against S.A.Rajendran Poosari, Mr.Shanmugasundaram, learned senior counsel, took pain in taking us through various documents filed in the form of typed-set. We verified all those documents such as "Sthala Varalaru", list of managing trustees as per Board order No.1000 of 1935, plaint in O.S.No.581/88 wherein Rajendran Poosari was impleaded as 10th defendant, para 17 of the said plaint which describes defendants 2 to 10 therein are the present trustees (S.A.Rajendran Poosari is the 10th defendant), decree in O.S.No.581/88; finding therein to the effect that Rajendran Poosari, son of Arunachala Poosari is the present trustee; dismissal of the said suit holding that defendants 2 to 10 are trustees of Mariamman temple; A.S.No.8/2005 on the file of District Judge, Virudhunagar at Srivilliputhur wherein Rajendran Poosari was shown as 7th respondent; dismissal of the said appeal confirming the decision of the trial Court holding that defendants 2 to 9 are the hereditary trustees of the temple; another suit in O.S.No.60/2005 on the file of Subordinate Judge, Sivakasi wherein S.A.Rajendran Poosari was shown 5th defendant; dismissal of injunction application restraining the respondents therein including S.A.Rajendran Poosari, to function as hereditary trustee, to take part in Board meeting and in election meeting of Chairman and Board etc. The verification of the above documents make it clear that the Civil Court and the HR and CE Department have declared or recognised S.A.Rajendran Poosari and his father Arunachala Poosari as hereditary trustee of the Mariamman temple in question. Inasmuch as enquiry is pending before certain authorities, we are reluctant to refer further details, however, the materials pointed out by Mr.Shanmugasundaram, learned senior counsel, would amply support the claim of S.A.Rajendran Poosari, and till the said conclusion/finding/order are varied, modified by higher forum, the same cannot be ignored by any one.
7.In the light of the factual details as demonstrated, taking of the fact that the learned Judge has permitted that the enquiry against any of the trustees, if any, be continued and depending on the result, the Commissioner, HR and CE, is free to take action against the erring trustee/Managing trustee and remove him/them from the said post, we hold that the claim of the appellant is not acceptable. At any rate, we are of the view that prima facie the apprehension of the appellant is liable to be rejected. We are also satisfied that sufficient safeguards have been provided in the order of the learned Judge-vide para 10 of the impugned order.
8.Under these circumstances, we do not find any erro or infirmity in the impugned order and there is no valid ground for interference consequently, both the appeals fail and are accordingly dismissed. No costs. Connected miscellaneous petitions are closed."
and the finding is that the civil revision petitioner is a hereditary trustee and the period of three years is over and one person or other is set up and proceedings are filed in Court of law and in the election proceedings dated 28.10.2005 pertaining to the Chairman-cum-Managing Trustee of Board of Trustees of Arulmighu Mariamman Temple, Irukkangudi issued by the Joint Commissioner (Additional charge) of Hindu Religious and Charitable Endowments Department, Sivagangai/Election Officer, it is notified that the revision petitioner herein (S.A.Rajendran Poosari, S/o.Arunachalam Poosari) has been elected as Head of the Hereditary Trustees and in the said proceedings, the name of the 4th respondent/petitioner/plainitff (S.Sethulingam Poosari) has been found and that the term has expired on 27.10.2008 and that one M.Rajendran Poosari S/o.Muthuram Poosari has filed W.P.(MD).No.8871 of 2008 calling for the records relating to the impugned order dated 30.09.2008 issued by the 7th respondent (Chairman-cum-Managing Trustee of Arulmighu Irukkankudi Mariamman Temple, Sattur Taluk, Virudhunagar District) and to quash the same and consequently direct the third respondent (the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai) to expedite the O.A.No.4 of 2000 by giving notice to all the hereditary poosaries including the petitioner to facilitate the preparation of fresh electoral roll of hereditary trustees for the proposed election of Chairman-cum-Managing Trustee of Board of Trustees of Arulmighu Irukkankudi Mariamman Temple, Sattur Taluk, Virudhunagar District 2008-2011.
5.Moreover, one P.S.R.Ramamoorthy Poosari S/o.P.Shinna Ramasamy Poosari has filed W.P.(MD).No.8872 of 2008 praying for the same relief as mentioned in W.P.(MD).No.8871 of 2008 and further that S.Ramar Poosari S/o.Sangaiah Poosari has filed W.P.No.24520 of 2008 before this Court calling for the records relating to the impugned order issued by the 4th respondent/revision petitioner (S.A.Rajendran Poosari) in his proceedings dated 30.09.2008 and quash the same and consequently direct the first respondent to take appropriate action against the hereditary trustees R.Soundhira Rajan Poosari and other hereditary trustees and subsequently direct to appoint a fit person to prepare a revised a list of hereditary trustees for the proposed election etc. and also that one S.R.Muthuraman Poosari, Ex-Managing Trustee & Hereditary Trustee of the Arulmighu Mariamman Thiru Kovil, Irrukangudi, Sattur Taluk, Virudhunagar District as petitioner filed R.P.No.48 of 2008 before the Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai citing the revision petitioner (S.A.Rajendran Poosari) and another as respondents praying to call for and examine the records of the Managing Trustee in the impugned notice dated 30.09.2008 in connection with the proposed special meeting of Board of Hereditary Trustees to be held on 13.10.2008 to elect Chairman cum Managing Trustee to the Board of Hereditary Trustees of Arulmighu Mariamman Temple, Irukkangudi, Sattur Taluk, Virudhunagar District and to pass such necessary orders to set aside the impugned notice issued by the respondent etc. and that five writ petitions have been filed and dismissed and that S.R.Ramamoorthy Poosari and revision petitioner S.A.Rajendran Poosari filed W.P.No.9157 of 2008 and W.P.No.9159 of 2008 before the Madurai Bench of the Madras High Court praying to call for the records pertaining to R.P.No.48 of 2008 on the file of second respondent, Commissioner, Hindu Religious and Charitable Endowments Department, Chennai and to quash the same and directing the respondents 1 to 4, 15 and 16 therein to cooperate with the petitioner in conducting peaceful elections scheduled on 23.10.2008, positively in a democratic way and wherein a common order has been passed on 20.10.2008 wherein it is inter alia observed as follows:
"18.In commensurate and concinnity with the earlier order passed by the Single Judge of this Court and as confirmed by the Division Bench of this Court dated 13.09.2008, I am of the considered opinion that a similar order could be passed, whereby the election could be ordered to be conducted subject to the outcome of the probe or investigation or proceedings, which are pending with the authority under Hindu Religious and Charitable Endowments Act as against the erring trustees are concerned. As such the election has to be conducted and the office bearer could assume office based on such election result and administer the temple affairs, subject to the outcome of such probe by the authorities concerned.
19.In the result, the W.P.No.9157 of 2008 is ordered setting aside the stay granted and extended by the Commissioner and it is directed hereby that the existing eleven trustees referred to supra should be allowed to participate in the election either as candidates or voters as the case may be and there need not be any embargo. The W.P.No.9159 of 2008, is ordered to the effect that the election shall be conducted on 23.10.2008 or on such other date within 27.10.2008 as may be decided by the trustees and the Chairman be elected. Both the writ petitions are ordered subject to the outcome of the probe or enquiry proceedings, which is pending before the Commissioner.
20.The learned counsel appearing for the petitioners in unison would submit that an Advocate/Commissioner may be appointed as observer as they are having some reservation relating to the Hindu Religious and Charitable Endowments official's or revenue official's participation as observer in the election.
21.I am of the considered opinion that there need not be any apprehension on the part of the petitioners and the District Revenue Officer, Virudhunagar shall be the observer for the said election and to that effect the present Chairman shall invite him, well in advance, and he could see to it that the election process is going on smoothly. If necessary, the District Revenue Officer may arrange for police protection in that regard.
22.Untrammeled and uninfluenced by any of the observations made by this Court in disposing of these writ petitions, the Commissioner, Hindu Religious and Charitable Endowments Department, shall be at liberty to dispose of the pending matter before him in the form of affidavit filed by Muthuraman Poosari, dated 07.10.2008, as per law, purely on merits.
23.With the above directions, these writ petitions are disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed."
and that the revision petitioner herein has given a letter dated 22.10.2008 to the Personal Assistant (General) of District Revenue Officer, Virudhunagar District requesting the DRO to take part in the election as an observer (by enclosing a copy of the High Court's order in W.P.Nos.9157 and 9159 of 2008) and by proceedings dated 23.10.2008 relating to the Chairman of Trustee election it is resolved that S.R.Ramamoorthy Poosari has secured 8 votes and therefore, he has been elected as Chairman of Trustees of the temple and in the said proceedings the revision petitioner (S.A.Rajendran Poosari) and 7 others have signed. It is relevant to point out that Sethulingam Poosari and Ramar Poosari were not present on 23.10.2008 in the special meeting relating to the election of Chairman of Board of Hereditary Trustees.
6.Continuing further, the learned counsel for the revision petitioner submits that the 4th respondent/ plaintiff in the plaint in O.S.No.7380 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai has not whispered anything about his interest and that the false allegations have been made in the plaint and that a declaration is sought for to the effect that the 4th defendant is not a Hereditary Trustee of the Arulmighu Mariamman Temple Irrukkangudi, Sattur etc. and that there is a misjoinder of relief and in the plaint there has been a suppression of judicial proceedings and further that notice under Section 80 of Civil Procedure Code has not been issued to the defendants 1 to 3, being Public Officers of the Hindu Religious and Charitable Endowments Department and that the 4th respondent/petitioner/plaintiff never informed the revision petitioner to stop the election when he has obtained the order of ad-interim injunction on 22.10.2008 and that on 23.10.2008 the election has taken place and that District Revenue Officer has not taken part as an observer and the City Civil Court has no role to play and moreover, the injunction order has no relevance to the documents and it has become infructuous and that there is no dispute in regard to the hereditary trusteeship and that the 4th respondent/plaintiff is only a puppet player and that by resorting to the suit proceedings before the City Civil Court he has abused the process of Court and therefore, on account of (i)suppression of facts; and (ii)for projecting wrong facts, this Court can invoke its power under
Article 227 of the Constitution of India to strike off the plaint.
7.The learned counsel for the revision petitioner contends that the 4th respondent/petitioner/plaintiff filed O.S.No.102 of 1993 on the file of Sub Judge, Srivilliputhur praying for the relief of setting aside the order passed in R.C.No.89673/86, dated 17.7.1992 of the Tamilnadu Temple Administration Board through its Member/Secretary after perusing the records of the defendant Board and declare that the petitioner continues to be one of the Hereditary Trustees of Arulmighu Mariamman Temple, at Irukkankudi Village, Sattur Taluk, Kamarajar District and in 1983 he has accepted the Hereditary Trusteeship and further, the proceedings of the Deputy Commissioner of Hindu Religious and Charitable Endowments Department dated 01.09.1983 indicates that in the election that took place on 22.08.1983 the 4th respondent-S.Sethulingam Poosari who has been election as Chairman of the Board of Hereditary Trustees has been recorded and that he has to take charge from the Managing Trustee whose term has expired and to intimate the said fact to the Department by means of report. In the suit O.S.No.14 of 2000 on the file of Sub Court, Sivakasi (formerly O.S.No.102 of 1993 on the file of Sub Court, Srivilliputhur) a judgment has been passed dismissing the suit finally and it is further observed that by virtue of
Section 7(b)(2)(h), the Board has the power to constitute Board of Trustees respecting any religious institutions whose annual income is Rs.1 lakh and above etc. and so the plea that the temple administration has no jurisdiction to issue the impugned order cannot be interfered.
8.Earlier R.Ariram Poosari and S.Karuppasamy Poosari as plaintiffs have filed a suit O.S.No.60 of 2005 on the file of Sub Judge, Sivakasi praying for the relief of declaration that the revision petitioner (S.A.Rajendran Poosari)/5th defendant is not having any right or locus standi to function as a hereditary trustee of Arulmighu Mariamman Temple at Irukkangudi Village at Sattur Taluk, Virudhunagar District and for the relief of permanent injunction restraining the revision petitioner/5th defendant from taking part in the meetings of the Trust Board of the suit temple and taking part in the election of Chairman for the Trust Board of the suit temple and also directing the defendants 1 to 4 not to allow the 5th defendant to function as hereditary trustees in the management and administration of the suit temple. However, since the plaintiffs in O.S.No.60 of 2006 were called absent the suit was dismissed for default without costs on 08.08.2006 by the Sub Court, Sivakasi.
9.Added further, the learned counsel for the revision petitioner submits that in Contempt Petition (MD)No.370 of 2008, this Court has passed orders on 10.11.2008 inter alia stating that 'as both the respondents/contemnors have filed separate solemn affidavits stating the circumstances under which applications came to be filed before the authorities and the subsequent development to withdraw the petitions and undertaking given by them, in the given circumstances of the case, by recording the affidavits of each one of the contemnor, the contempt petition can be closed and it is closed as such, with the observation that this sort of filing petitions before the authorities should not recur in future, at the instance of respondents, by pleading ignorance, as ignorance of law is not an excuse.'
10.It is not out of place to make a significant mention that the Contempt Petition (MD).No.370 of 2008 has been taken out by the revision petitioner/4th defendant under
Section 11 of the Contempt of Courts Act, 1971 for punishing the respondents/contemnors, viz., Ramar Poosari and Ariram Poosari for committing contempt of the order dated 30.09.2005 made in Writ Appeal No.338 of 2005 etc. and in the order passed in Contempt Petition (MD).No.370 of 2008 dated 10.11.2008 it is observed as follows:
"2.In the above said writ appeal, the Court recognized S.A.Rajendran Poosari as one of the hereditary trustees, on the basis of the decree in a civil proceedings. It is the complaint of the petitioner in the present contempt petition that the respondents/contemnors have filed applications before the authorities under the Hindu Religious and Charitable Endowments Act to declare the said Rajendran Poosari is not a hereditary trustee. On that ground, the contempt petition is filed.
3.Notice was issued on 18.09.2008 and the parties appeared before this Court on several occasions and ultimately, realising their mistake, each one of the contemnors have filed a separate counter affidavit. The 2nd respondent/contemnor Ariram Poosari, in his affidavit, in paragraph No.5, has stated that since he came to know of the real colour of the first respondent and his ill-motive, he gave an application on 24.03.2008 seeking withdrawal of his original petition filed at the instance of the first respondent in Na.Ka.No.2854/2005/A1 before the Joint Commissioner, H.R. And C.E. Department, Sivagangai, dated 08.04.2005, stating that in view of the orders passed in the writ petitions and in respective writ appeal Nos.338 and 339 of 2005, the dispute raised by him and had become final and the status of Rajendran Poosari as hereditary trustee was confirmed in view of all the said orders mentioned therein and also requested that the application filed by him may be treated as withdrawn.
4.The 1st respondent/contemnor Ramar Poosari filed an affidavit and additional affidavit on 05.11.2008, wherein he has stated that with due respect, relying on the orders of this Hon'ble High Court in W.A.(MD).Nos.338 and 339 of 2005, he filed the application and now, he was advised that without filing any clarification petition and getting orders from this Hon'ble Court in the above writ appeal, filing any petition before the authorities would amount to contempt of Court and his previous petition before the Joint Commissioner of HR & CE Department, Sivagangai, was filed without knowing the consequences and without any intention to disobey the order of this Court. He has further stated that he undertakes not to press the proceedings before the Joint Commissioner in Na.Ka.No.1103/2008/A1, dated 21/04/2008."
11.The learned counsel for the revision petitioner in support of the contention that filing of a suit in a Court not having jurisdiction is an abuse of process of Court relies on the decision in Rev.Noble Gambeeran and others V. P.Ponnan 1999-1-L.W.300 at page 301 wherein this Court has inter alia held that 'the ad-interim injunction granted by the Court below is set aside and the injunction application is dismissed. "Since I hold that the suit is not filed bona fide and the plaintiff is not an honest litigant, the Court is not expected to grant any relief to him. The Court process should not be allowed to achieve an oblique purpose. The present suit which has been filed as representative suit cannot, therefore, be maintained and is struck off file. I also make it clear that the third defendant is entitled to discharge his official duties in whatever capacity, whether as Bishop or as President of the Executive Committee or various Organisations of the Diocese, and his duties shall not be prevented by any person, and no Subordinate Court can prevent the third defendant from discharging such duties.'
12.Another decision in Senni @ Sundarammal V. Ramasamy Poosari and others 2001-1-L.W.202 is cited on the side of revision petitioner wherein this Court has held as follows:
"Process of Court must be used bona fide and properly and must not be misused or abused. It is the duty of the Court to prevent improper use of its machinery. The Court has to see that it is not used as a means of oppression and the process of litigation is free from vexatiousness. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process would depend upon the relevant circumstances. But, it has to be judged from the angle of interest of justice and public policy."
13.Further, the learned counsel for the revision petitioner presses into service the decision in Ranipet Municipality rep. By its Commissioner and Special Officer V. M.Shamsheerkhan 1997-2-L.W. 761 wherein this Court has inter alia held that 'suit filed by the plaintiff and the order of injunction passed by the lower Court constituted an abuse of process of Court and in exercise of power under
Article 227 of the Constitution, the plaint struck off the file.'
14.Yet another decision in T.Palanisamy Gounder V. Sankara Ramanathan and 4 others 1999-3-L.W.897 at page 901 has been relied on the side of the revision petitioner wherein this Court has held that 'it is clear that the averments made in the plaint do not disclose the cause of action, besides the plea raised by them are not maintainable etc. and resultantly, the plaint in O.S.No.671 of 1998 pending on the file of Sub Court, Erode has been struck off by allowing the civil revision petition.
15.That apart, the learned counsel for the revision petitioner cites the decision in Nesammal and 3 others V. Edward and another 1998-3-L.W.505 at page 507 wherein it is observed as follows:
"4.That apart, on a reading of the plaint, it is clear that the petitioners want to re-agitate the entire matter once again. It is for that reason the lower Court held that the plaint is liable to be rejected. It is this conduct on the part of the litigant that is commonly known as abuse of process of Law. It is stated.
'(1)The initiation of a proceeding in a Court of Justice for the purpose of mounting a collateral attack on a final decision adverse to the intending plaintiff reached by a Court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the matter is, as a matter of public policy, an abuse of the process of the Court.
(2)The fact that collateral attack is by means of a civil action raising an identical issue decided against the plaintiff in a competent court or criminal jurisdiction is immaterial since if the issue was proved against the plaintiff beyond all reasonable doubt in the Criminal Court it will be wholly inconsistent if it is not decided against him on the balance of probability in the civil action. The plaintiff's civil action therefore is liable to be struck out as an abuse of the process of the Court."
16.Moreover, the revision petitioner seeks in aid to the decision in T.Arivandandam V. T.V.Satyapal and another (1977) 4 SCC 467 at page 468 wherein the Hon'ble Supreme Court has observed as follows:
"The trial Court must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI0 and must be triggered against them. (para 5) In the present case it is perfectly plain that the suit is a flagrant misuse of the mercies of the law in receiving plaints. The trial Court here will remind itself of Section 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. The suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned. (para 6)"
17.Further, on the side of revision petitioner the decision in Sri Suryanarayana Paper and Boards Private Limited and others V. V.Padmakumar and others 1995-2-L.W.266 is relied on to the effect that 'if an order of injunction is made without recording the reasons, the injunction would be in violation of the procedure under Order 39, Rule 3 of C.P.C. and the practice of granting such orders of injunction has been deprecated.'
18.At this stage, it is relevant to point out that the District Revenue Officer, Virudhunagar in his letter dated 22.10.2008 addressed to the civil revision petitioner has stated that he has received the letter dated 22.10.2008 of the Managing Trustee of the Irukkangudi Arulmighu Mariamman Temple only on the afternoon of 22.10.2008 and that the details regarding the rules to be followed in regard to the conduct of election, election officers name, manner and mode of conducting election etc. are to be informed to him and also for the peaceful conduct of the said election and suggesting an alternative date in consultation with the Board of Trustees and to meet him on 23.10.2008 at about 3 p.m. in the afternoon.
19.However, the Deputy Commissioner/Jewel Verification Officer of Hindu Religious and Charitable Endowments Department, Sivagangai and the Assistant Commissioner of Hindu Religious and Charitable Endowments Department, Virudhunagar in their letter dated 23.10.2008 addressed to the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai have stated that the District Revenue Officer has not been met and the special meeting of hereditary trustees were held on the already decided dated 23.10.2008 at 10.00 a.m. without the election observer and that the Chairman has been elected, which has been recorded in the Board of Trustees resolution book etc. The District Revenue Officer, Virudhunagar in his notice dated 01.11.2008 with a copy being marked to 4th respondent/ petitioner/plaintiff has among other things stated that he has been informed that because of the festival season and since one day 24.10.2008 is available and the Hon'ble High Court has ordered on 23.10.2008 in regard to the conduct of election, the members have unanimously decided to conduct the election on 23.10.2008 and in the said election that has taken place on 23.10.2008 at 10.00 a.m., in which 8 trustees have participated and voted and that Thiru.S.Ramamoorthy has obtained 8 votes and he has been elected as Chairman of the Board of Trustees etc.
20.The learned counsel for the revision petitioner submits that the 4th respondent has filed another suit in O.S.No.8178 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai on 19.11.2008 for a declaration that the election held on 23.10.2008 is null and void and for other reliefs and that in I.A.No.19924 of 2008 an injunction has been granted restraining the newly elected Chairman, Board of Trustees, functioning as the Chairman on 21.11.2008 and this subsequent event shows that the 4th respondent is deliberately abusing the process of Court by resorting to filing vexatious suits before a Court without jurisdiction.
21.Per contra, the learned counsel for the 4th respondent/petitioner/plaintiff submits that the revision petitioner/4th defendant has conducted the election by violating the orders of Hon'ble High Court passed in W.P.(MD).Nos.9157 and 9159 of 2008 dated 20.10.2008 wherein the present Chairman of the Board of Trustees has been directed to invite the District Revenue Officer, Virudhunagar (who will be the observer) well in advance and that he could see that the election process is going on smoothly and if necessary the District Revenue Officer may arrange for police protection in that regard etc. and as a matter of fact, the election has been conducted without the presence of the District Revenue Officer, Virudhunagar and moreover, the revision petitioner has a remedy of right of appeal as against the interim orders passed in I.A.No.17871 of 2008 by the trial Court and the revision petitioner cannot invoke the jurisdiction of this Court under
Article 227 of the Constitution as a matter of routine.
22.According to the learned counsel for the 4th respondent/plaintiff, the term 'Hereditary Trustee' means only the eldest son of the family and that his father is Arunachalam Poosari who is not the eldest son and therefore, Arunachalam Poosari cannot become the hereditary trustee and that the revision petitioner says he is the hereditary trustee and that must be proved and the fact that whether the revision petitioner is a hereditary trustee or not no one has decided the said issue on evidence and that the observation in the order of Contempt Petition (MD).No.370 of 2008 dated 10.11.2008 to the effect that 'in Writ Appeal No.338 of 2005 the revision petitioner has been recognised as one of the hereditary trustees on the basis of decree in civil proceedings cannot be used against the 4th respondent/ plaintiff and that the revision petitioner has to prove his status as hereditary trustee independently and that the 4th respondent is not a party to any of the proceedings and there is no record to show that Arunachalam Poosari has been the hereditary trustee and some evidence in this regard is necessary and that the revision petitioner has not met the District Revenue Officer, Virudhunagar and without waiting for the District Revenue Officer, Virudhunagar and Hindu Religious and Charitable Endowments Department officials the election has been held on 23.10.2008 and that the revision petition is not maintainable and only if the Arunachalam Poosari is the hereditary trustee, then only the revision petitioner will be the hereditary trustee and that the revision petitioner can use all materials in his favour before the trial Court and the matters/issues to be resolved require evidence and that the plaint filed by the 4th respondent is not an abuse of process of law and if the plaint averments are taken into account for the purpose of cause of action then the 4th respondent/plaintiff has a cause of action in O.S.No.7380 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai and that the plea suit is bad for non-joinder of necessary parties viz., other trustees cannot be a ground for striking off the plaint and therefore, prays for dismissal of the revision petition.
23.The learned counsel for the 4th respondent/plaintiff cites the decision in Sadhana Lodh V. National Insurance Company Limited AIR 2003 Supreme Court 1561 wherein the Hon'ble Supreme Court has held that 'Whether a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under
Art.227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under S.115 of the C.P.C. Where remedy for filing a revision before the High Court under S. 115 of Civil Procedure Code has been expressly barred by a State Government, only in such case a petition under
Art.227 of the Constitution would lie and not under Art.226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under S.115, CPC, in such a situation a writ petition under
Art.227 would lie and not under Art.226 of the Constitution. Thus where the State legislature has barred a remedy of filing a revision petition before the High Court under S.115, C.P.C., no petition under Art.226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under
Art. 226 of the Constitution.'
24.He also relies on the decision in A.Venkatasubbiah Naidu V. S.Chellappan and others AIR 2000 Supreme Court 3032 at page 3036 wherein the Hon'ble Supreme Court has observed as follows:
"21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.
22. Now what remains is the question whether the High Court should have entertained the petition under
Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.
25.Yet another decision in Ganapathy Subramanian V. S.Ramalingam and others (2007) 7 MLJ 13 of this Court is relied on the 4th respondent's side wherein this Court among other things has held that 'the power of General Superintendence under
Article 227 of the Constitution of India has to be exercised most sparingly only in appropriate cases and that the petitioner filing petition under
Article 227 to strike off suit on the ground that it was filed in abuse the process of Court is not maintainable and there is no impediment for the petitioner dated to put forth his argument before the trial Court and the tendency of litigants approaching High Court without resorting to Court of first instance is deprecated.'
26.In support of the contention that the Court cannot go beyond facts mentioned in plaint the learned counsel for the 4th respondent relies on the decision in Exphar SA and another V. Eupharma Laboratories Limited and another 2004 AIR SCW 1087 wherein the Hon'ble Supreme Court has held that 'the Court cannot go beyond the facts stated in plaint and the Court examining and rejecting the suit for want of jurisdiction is not proper.' He also further seeks in aid of the decision in A.Krishnaswami Raja V. Krishna Raja and another 1968 1 MLJ 119 wherein this Court has observed as follows:
"The jurisdiction of the Deputy Commissioner under Section 57(b) is confined to a decision whether a trustee holds or held office as a hereditary trustee. In other words, the Deputy Commissioner can only decide as to the status of the office of the trusteeship, namely, whether it is hereditary. He is not competent to go into the further question as to which of the competing claimants is a hereditary trustee or whether both are joint hereditary trustees. That is a matter not covered by section 57 of the Act and has to be decided only by a separate suit."
27.Moreover, he also presses into service another decision in Aviyur Mariamman Temple by Hereditary Trustee Parasuraman V. T.N.Sundaramoorthi Pillai and another 1981 1 MLJ at page 392 wherein this Court has held as follows:
"Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act enables a Deputy Commissioner to enquire into and decide as to "whether a trustee holds or held office as a hereditary trustee". It is by now well-settled that the jurisdiction of the Deputy Commissioner under Section 57(b) of the Hindu Religious and Charitable Endowments Act of 1951 corresponding to section 63(c) of Tamil Nadu Act XXII of 1959, is confined to a decision whether a trustee holds or held office as a hereditary trustee i.e., that decision should be in relation to the status of the office of the trusteeship, namely whether it is hereditary or not and that it is not competent for the Deputy Commissioner to go into the further question as to who among the competing claimants is a hereditary trustee as the matter is not covered by the above provision. This is clear from the decisions in Krishnaswami Raja V. Krishna Raja, (1968) 1 M.L.J. 11 and Rengayya Gounder V. Kannappa Naicker (1971) 1 M.L.J. 358. In view of the above decisions, he question as to who as between the rival claimants is the hereditary trustee cannot be decided by the Deputy Commissioner under Section 63 (b) of Tamil Nadu Act XXII of 1959, as, if such a decision is rendered by him, the same cannot bind the Civil Court which has to decide independently on the evidence adduced by the parties."
28.Moreover, he also cites the decision in Surya Dev Rai V. Ram Chander Rai and others (2003) 6 Supreme Court Cases 675 at page 678 wherein the Hon'ble Supreme Court has held that 'the writ of certiorari is issued for creating gross errors of jurisdiction while supervisory jurisdiction under
Art.227 is exercised for keeping subordinate courts within bounds of their jurisdiction and further held, neither is available for correcting mere errors of fact of law and available only when (i) error is manifest and apparent on face of record, and (ii)grave injustice or gross failure of justice has been occasioned thereby and also, neither is available when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved and the power under either article to be used sparingly, that is, where judicial conscience of High Court dictates it etc.
29.In the order dated 04.05.1935 of the Board of Commissioner's for HR and CE, Madras the clause 5 of the scheme enjoins that the trustees may nominate any one of them to be the Managing Trustees for each fasli year and if the trustees fail to elect one within a month of the occurrence of the vacancy, such vacancy shall be filled up by nomination by the Board.
30.The learned counsel for the 4th respondent/ petitioner/plaintiff refers to the orders dated 29.07.2005 passed in W.P.(MD).Nos.4132, 4837 and 5321 of 2005 filed by R.Ariram Poosari and the present revision petitioner (S.A.Rajendran Poosari) wherein it is inter alia observed as follows:
"7.Though the writ petitions are filed seeking several relief, the parties agreed to elect one of the trustees as a Managing trustee and prayed this Court to direct the Commissioner, HR & CE Department or any one authorised by him to conduct election.
8.In view of the above, I direct the commissioner of HR & CE Department or the person authorised by him to conduct the election and select one of the trustees as a Managing trustees. It is also stated by the counsel on either side that the above said 11 persons will appear before the Commissioner on 05.08.2005 at 10.00 a.m., and if the said date is suitable to the Commissioner to conduct election, he may do so, in case, the said date is not suitable, it is open to the Commissioner to adjourn the election to some other date.
9.On the date, if any, fixed by the Commissioner of HR & CE, the trustees are directed to appear without fail. In the event of absent of any trustees, it is open to the Commissioner to conduct election among the trustees present. The Commissioner of HR & CE is directed to complete the said exercise within a period of three weeks from today.
10.It is also made clear that the enquiry contemplated against any of the trustees shall go on. In case, if any one of the trustees is found guilty, it is open to the Commissioner of HR & CE, after election, to take action against the trustee/Managing trustee to remove them from the said post as the case may be in accordance with law.
11.Any difficulty in implementing this order, the parties can approach this Court."
31.Added further, the learned counsel for the 4th respondent contends that in the Writ Appeal Nos.338 and 339 of 2005 by order dated 30.09.2005 it is held as follows:
"... taking of the fact that the learned Judge has permitted that the enquiry against any of the trustees, if any, be continued and depending on the result, the Commissioner, HR and CE, is free to take action against the erring trustee/Managing trustee and remove him/them from the said post, we hold that the claim of the appellant is not acceptable. At any rate, we are of the view that prima facie the apprehension of the appellant is liable to be rejected. We are also satisfied that sufficient safeguards have been provided in the order of the learned Judge-vide para 10 of the impugned order.
8.Under these circumstances, we do not find any erro or infirmity in the impugned order and there is no valid ground for interference consequently, both the appeals fail and are accordingly dismissed. No costs. Connected miscellaneous petitions are closed."
and in the said proceedings, the civi revision petitioner has been shown as respondents 1 and 5 respectively and that he has not preferred any appeal and that he has been satisfied that the enquiry can go on and if only the Arunachalam Poosari is the hereditary trustee, then the revision petitioner will be the hereditary trustee and that O.S.No.60 of 2006 on the file of Sub Court, Sivakasi has been initiated by Ariram Poosari and another wherein the civil revision petitioner herein succeeds and that the hereditary trusteeship can be decided under Section 63(b) of the Hindu Religious and Charitable Endowments Act and
Article 227 of the Constitution of India cannot be exercised in the cloak of an appeal in disguise.
32.Countering the submissions of the learned counsel for the 4th respondent/plaintiff, the learned counsel for the revision petitioner submits that the 4th respondent/ plaintiff has abused the process of the Court by filing the present suit O.S.No.7380 of 2008 and that the 4th respondent/plaintiff cannot come to City Civil Court, Chennai and that the City Civil Court, Chennai has no jurisdiction in the matter and admittedly, the Commissioner, HR & CE Department is not a party to I.A.No.17871 of 2008 and in 1983 the 4th respondent/plaintiff has accepted the revision petitioner as trustee and that somebody filed O.S.No.581 of 1988 on the file of District Munsif Court, Sattur and that the revision petitioner is one of the defendants therein and that neither plaintiff nor the civil revision petitioner is a trustee and that the present suit filed by the 4th respondent/petitioner/plaintiff lacks bona fides and therefore, this Court can invoke
Article 227 of the Constitution of India to strike off the plaint.
33.Moreover, on the side of revision petitioner, it is submitted that the revision petitioner is not the trustee of the temple at present. The learned counsel for the 4th respondent/plaintiff refers to Section 7 of the HR & CE Act and also to Section 9 of the HR & CE Act relating to the constituent advisory committee and the Government to appoint Commissioner etc. He also referred to the definition
Section 6(7) of the Act which specifies the jurisdiction of the particular Court.
34.That apart, this Court points out that the need to assign reasons before passing exparte orders of injunctions has been emphasised by the Hon'ble Supreme Court in the decision in Shivkumar Chadha V. MCD (1993) 3 SCC 161 and the same is as follows:
"... The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such exparte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then, the introduction of the proviso by the parliament shall be a futile exercise and that part of R.3 will be a surplus usage for all practical purposes. Proviso to R.3 of Order 39 of the Code of Civil Procedure, attracts the plea, that if a constitute requires a thing to be done in a particular manner it should be done in that manner or not at all."
35.This Court recalls the decision in Wajid Ali Mirza and another V. M.A.Qaher and others AIR 1989 NOC 113 (ANDH. PRA) wherein it is held as under:
"Civil P.C. (5 of 1908), O.43, R.1 (r), O.39, R.1 - Appeal against ex parte interim injunction - Ex parte order of injunction passed by court after due compliance of O.39, R.3 - Held, proper course was to direct aggrieved party to approach same court for vacating ex parte order, when its continuance would not result in abuse of process of Court."
36.In Airport Authority of India V. M/s.Paradise Hotel and Restaurant AIR 2002 Gauhati at page 146, it is held that 'an exparte ad-interim temporary injunction is appealable and not amenable to revisional jurisdiction of High Court.' Moreover, in the aforesaid decision at para 12, it is observed as follows:
"12.While answering the above question, it needs to be borne is mind that notwithstanding the decision in Subhas Mohan Dev's case (supra), relied upon by Mr.K.N.Choudhury, Full Bench of this Court in (1984)1 GLR 133 : (AIR 1984 Gauhati 86) (Akmal Ali v. State of Assam) has laid down the law on the subject in the following words:-
"If an order of ad interim injunction is passed under Order 39, R.1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as O. 43, R.1 (r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer on appeal ............................ In our opinion, therefore, the Court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under O.1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against such orders. In our opinion, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim, are appealable, if rendered under O.39, Rr.1 and 2. On perusal of Order 43, R.1(r) we notice that it speaks that an appeal shall lie from an "order" under R.1, R.2-A, R.4 and R.10 of Order 39. Therefore, any order under Rr.1, 2, 2-A and 4 is appealable.......................................................................................... However, there is a line of decisions in which it has been held that an ex parte or ad interim order of injunction under O.39, Rr.1,2,2-A is not appealable as it is temporary or ex parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under O.39, R.4 of the Code. An ex-parte non-speaking temporary or ad-interim order of injunction is revisable but it is not appealable, although the characteristics of the impugned order are absolutely the same both in O. 39, R.4 as well as in O. 43, R.1(r), seems to be irreconciliable. If it is an order of injunction, it is appealable as well. Similarly, if it is an order of injunction it is revisable under O.39, R.4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view. In our opinion, all ex parte ad interim injunction are appealable under O.43, R.1(r) as well as revisable under O.39, R.4 of the Code ................................................... Any controversy as to whether reasons need be recorded while making an ex parte order of an interim injunction has been removed by the introduction of R.3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay, etc. may pass an order of ex parte ad interim injuctions under Rr.1 and 2 of O.39. It does not stand to scrutiny that an ad interim order devoid of reasons, rendered in violation of the well known principles that a judicial order must contain reasons, and in violation of the mandatory provision of R.3 can escape the jurisdiction of the appellate Court, but the same order can be revisedb y the very same Court. Judicial order must be reasoned order. After the amendment, it must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of O.39, Rr.1 and 2 make the order. Further, R.3 enjoins "reasons to be recorded." Under these circumstances when the trial Court is required by law state reasons, but does not furnish them in its order, it violates the provisions of 'the Code.' By its own inaction or intentional violation of the mandatory provisions of the Rules a Court cannot take away the right of appeal of a person aggrieved by that order. As such, an ex parte order of injunction, whether speaking or non-speaking, is appealable." (Emphasis is added)
37.In the decision Bengal Club Limited V. V.Chowdhury AIR 2003 Calcutta at page 96 it is inter alia observed that 'a person aggrieved by an order of exparte injunction by way of filing an appeal can urge before the appellate Court that the plaintiff before the trial Court has suppressed the facts.'
38.A right of appeal is always a creature of statute and the right of appeal as per under Order 43 Rule 1 of Civil Procedure Code is an appeal both on facts and law. It cannot be gainsaid that the requirement of assigning reasons for the grant of exparte ad-interim injunction is a mandatory one.
39.In Dover Park Builders Private Limited V. Madhuri Jalan and others AIR 2003 Calcutta at page 55 it is held that 'variation, discharge and vacating of interlocutory order can only be made by the Court, which has granted such order. Where the order of injunction was granted by the appeal Court on refusal to grant by trial Court, therefore, ordinarily going by wording of Order 39 Rule 4 of Civil Procedure Code the petitioner would have to approach the Division Bench of High Court for the appeal, but for the leave reserve in the order itself the defendants approach the trial Judge that is now being dealt with by the High Court under
Article 226 and High Court under
Article 226 if varies or modifies the order of injunction granted by the appeal Court it would not be deemed to be variation of order of appeal Court by it in an exercise of its jurisdiction of the trial Court and so it will not be committing judicial indiscipline. It is futile to contend that the defendant cannot make such an application as the appeal Court do not grant such permission because permission or no permission when the law enjoined the right to the litigating parties to approach the Court straight away if it causes undue hardship.
40.Besides the above, where an exparte interlocutory order is unjust then, appeal is maintainable inspite of recourse available to a litigant under Order 39 Rule 4 of Civil Procedure Code. As a matter of fact, the two options are available to a defendant against an order of exparte injunction (i)an application under Order 39 Rule 4 of Civil Procedure Code for varying or vacating the order; (ii) an appeal under Order 43 Rule 1(r); the two options are concurrent. Indeed, an order passed under Order 39 Rule 1 and 2 of Civil Procedure Code is an appealable order under Section 104 read with Order 43 Rule 1(r) of Civil Procedure Code. It is pertinent to point out that in Celin V. Thomas Johnson AIR 2006 Ker. 297 it is held that 'the remedy available against an order vacating injunction is to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code and not writ petition.' However, this Court mentions that the requirement of assigning reasons for the grant of ad-interim injunction are not an empty ritualistic formality.
41.On going through the order passed by the trial Court in I.A.No.17871 of 2008 dated 22.10.2008, this Court opines that the said order is bereft of qualitative and quantitative details as to the grant of ad-interim injunction and it is not a reasoned speaking order as per well settled principles of law.
42.It is significant to point out that a duty is cast on a Court of Law to perform its obligations in rejecting the plaint hit by any of the infirmities under clause (a) to (d) of Order 7 Rule 11 of Civil Procedure Code even without the intervention of the defendant in the considered opinion of this Court.
43.Added further, this Court points out that the inclusion of cause of action is a requirement as per Order 7 Rule 1 of Civil Procedure Code and not of Order 7 Rule 11 of Civil Procedure Code. Generally, the Court has to presume that every allegation in plaint is true. However, when the plaint raises arguable points the same may not be rejected in law. Furthermore, if averments made in the plaint are documents relied upon discloses a cause of action, then plaint should not be rejected merely on the ground that the averments are not sufficient to prove the facts stated therein. No wonder, the Court can examine the parties to clear pleadings.
44.In the plaint filed by the 4th respondent/plaintiff in O.S.No.7380 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai it is inter alia averred that 'the election for the Chairman of Board of Trustees has to be conducted in consultation with all the trustees with regard to their convenience for the date of election and hence, the election notification issued by the 4th defendant (revision petitioner) who is not at all a hereditary trustee is without jurisdiction, illegal and null and void and that the revision petitioner/4th defendant against whom the proceedings initiated by the second defendant is pending, have no legal sanction and authority to issue the notification for the election and moreover, it is also mentioned the cause of action for the suit has arisen at Chennai where the office of the first defendant is situated at Chennai, who has the overall control and who is duty bound to remove the trustees acting adverse interest of temples and who is duty bound to restrain the persons like the 4th defendant who are not at all hereditary trustees from interfering with the administration of the temple under the Act etc.
45.It transpires that the 4th respondent/plaintiff has filed another suit O.S.No.8178 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai praying for the relief of declaring that the election conducted by the 5th defendant/revision petitioner (S.A.Rajendran Poosari) on 23.10.2008 is illegal, null and void and for the relief of permanent injunction restraining the defendants 1 and 2 from approving the election conducted on 23.10.2008, electing the 6th defendant as the Chairman of the Board of Trustee of Arulmighu Mariamman Temple, Irukkangudi, Sattur and for the relief of permanent injunction restraining the 6th defendant from functioning as the chairman of the board of trustees of Arulmighu Mariamman Temple, Irukkangudi, Sattur and for a mandatory injunction, directing the defendants 1 and 2 to appoint an election officer to conduct the election for the post of chairman of board of trustees of Arulmighu Mariamman Temple, Irukkangudi, Sattur for the period 2008-2011, by issuing fresh notification in accordance with law and for a mandatory injunction, directing the defendants 1 and 2 to nominate any one of the hereditary trustee as the chairman of board of trustee till conducting the fresh election in accordance with law. In the said suit O.S.NO.8178 of 2008, the 4th respondent/plaintiff has filed I.A.No.19924 of 2008. The trial Court by its order date 21.11.2008 has granted the relief of ad-interim injunction till 05.12.2008. As against the order of interim injunction in I.A.No.19924 of 2008 in O.S.No.8178 of 2008 on the file of VIII Assistant Judge, City Civil Court, Chennai, the 6th defendant therein has filed a Civil Revision Petition (PD).No.4051 of 2008 before this Court and in M.P.Nos.1 and 2 of 2008 this Court on 04.12.2008 has passed an order of interim suspension of the orders passed in I.A.No.19924 of 2008 dated 21.11.2008 and also deferred the proceedings of the trial Court in the said suit. M.P.Nos.5 and 6 of 2008 in M.P.Nos.1 and 2 of 2008 in C.R.P.(PD).No.4051 of 2008 have been filed by the petitioner/6th respondent/6th defendant (4th respondent in C.R.P.(PD).No.3634 of 2008) praying to revoke the orders passed in M.P.Nos.5 and 6 of 2008 in CRP.(PD).No.4051 of 2008 dated 04.12.2008 and in regard to the non-receipt of caveat notice, the orders have been reserved by this Court.
46.It is not out place to point out that any appropriate cases a Court of Law can take note of subsequent events/developments into consideration, in order to complete justice between the parties and the Court will be justified in acting upon such facts as are admitted by respective parties which have a material bearing on the outcome of the case. As a matter of fact, the Court has power to take into account of subsequent events and mould the relief accordingly subject to the conditions hereunder being satisfied: (i)that the relief as claimed originally has, by reason of subsequent events, become in appropriate or cannot be granted; (ii)that taking note of such subsequent events are changed circumstances would shorten litigation and enable complete justice being render to parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
47.On a careful consideration of respective contentions and in view of the averments and counter averments made by the respective parties taking a rival stand which are a mixed question of fact and law to be proved by means of oral and documentary evidence, besides raising arguable points in the considered opinion of this Court and inasmuch as the election to the post of Chairman of Board of Trustees of Arulmighu Mariamman Temple, Irukkangudi, Sattur has reportedly taken place on 23.10.2008, this Court, on the basis of equity, fairplay and on the principles of natural justice and even as per law, without going into the merits of the matter, directs the trial Court viz., VIII Assistant Judge, City Civil Court, Chennai to dispose of the main suit O.S.No.7380 of 2008 as well as the I.A.No.17871 of 2008 within a period of four months from the date of receipt of copy of this order in accordance with the well settled principles of law (after being satisfied with the requirement of filing of written statement and the counter in IA by the concerned parties and also framing triable issues) and to report compliance to this Court and because of the fact that
Article 227 of the Constitution of India has to be sparingly resorted to by this Court, this Court opines that the revision petitioner cannot invoke the supervisory, discretionary jurisdiction of this Court under
Article 227 of the Constitution of India based on the overall assessment of the facts and cumulative circumstances of the case. Liberty is given to the revision petitioner to raise all factual and legal contentions before the trial Court including the plea of maintainability of suit on the point of jurisdiction in the manner known to law.
Accordingly, the Civil Revision Petition is disposed of in above terms. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
sgl To The VIII Assistant Judge, City Civil Court, Chennai