RAMACHANDRAN POTTY Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) After twelve years of initiation of suit, it was dismissed by the trial court on a preliminary issue, regarding bar under Sec. 55 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (for short, 'the Act'), against which the plaintiffs came up.

(2.) Ext.P12 is the application submitted by the defendant for framing and hearing a preliminary issue regarding maintainability of the suit, to which, the plaintiff filed Ext.P13 objection. It appears that the trial court has committed a serious mistake. In fact, the bar under Sec. 55 of the Act is a partial restraint in instituting a suit within the period of advance notice in writing.

(3.) Before going into the abovesaid provision and its application, it is necessary to consider the legality and permissibility of a condition precedent to be complied with so as to initiate legal proceedings before a competent court. The normal principle is that there cannot be any restraint against institution of a litigation before a civil court. But the said principle is subject to atleast two exceptions; a debarring provision by which the jurisdiction of a civil court is ousted and vested with some other court or authority by providing equal and efficacious remedy under any special enactment and a partial restraint imposing a condition to be complied with before institution of the suit. A partial restraint imposing a condition to be complied with before institution of a suit is normally intended to avoid unwarranted litigation and to provide an opportunity to the proposed defendant to address the grievance of the proposed plaintiff and is resting on a different pedestal apart from the complete restraint/bar with equal and efficacious remedy. In short, for a complete bar, equal and efficacious remedy should be provided. Likewise, even in the case of partial bar, there should be provision to address the grievance of proposed petitioner by way of any urgent or immediate relief. Normally, partial restraint is to give an opportunity to the proposed defendant/respondent to redress the grievance without institution of a particular suit. Instances can be noticed under Sec. 80 C.P.C., Sec. 55 of the Act etc. But, in Sec. 80 C.P.C., the legislature has provided provision for meeting any urgent and immediate relief required, for which he has to obtain the leave of court, so as to overcome the partial restraint incorporated as a condition precedent for institution of a suit. The broad principle behind it is that no one can be left out without legal remedy. Postponement or adjournment of a legal remedy under any statute is not permissible if it offends the valuable right of a litigation, unless it provides an alternative measure to redress any grievance by way of immediate or urgent relief. In other words, the provision should strike a balance by providing an alternative remedy to meet urgent and immediate relief without which there cannot be any partial restraint under the guise of any condition precedent to be complied with for the institution of the suit. The abovesaid principle in its letter and spirit is followed in the construction of Sec. 80 C.P.C. with its subsec. (2). But no such treatment was given under Sec. 55 of the Act to address the remedy, if any, legally entitled to by way of any urgent or immediate relief. Sec. 55 of the Act by its construction does not address the vital requirement for providing remedy by way of immediate or urgent relief, hence bad in law and it may offend even the very principle of equality enshrined under the Constitution. This might be the reason why the legislature has in its wisdom incorporated sub-sec. (2) to Sec. 80 C.P.C.. But no such treatment was given to Sec. 55 of the Act, hence bad in law. Hence, it is within the permissible limit of the court to do justice to the parties by exercising the inherent power under Sec. 151 C.P.C. and can grant leave to institute a suit overriding the effect of Sec. 55 of the Act, if it found necessary for protecting the interest of a litigant by way of any immediate or urgent relief.