S GOVINDA MENON Vs. K MADHAVAN NAIR

JUDGEMENT

(1.) The appeal and the petitions arise from the order of Raman Nayar, J. dated the 12th February, 1963, dismissing O. P. No. 2306/62. That was a petition by one Madhavan Nair, Manager of Pulpalli Devaswom, for quashing an order of the Commissioner, Hindu Religious and Charitable Endowments, placing him under suspension and appointing another in his place. The first respondent to the petition was the Commissioner, Hindu Religious and Charitable Endowments, Kerala. The appellant in the appeal who is also the petitioner in the two petitions was the Commissioner at the time of passing the order of suspension and he continued as such only till 19-10-1962. The main ground urged in the original petition was that the order of suspension was actuated by malafides. According to the petitioner in the original petition, the appellant was directing the disposal of valuable forest lands and timber belonging to the Devaswom to his nominees, in violation of law; the petitioner did not agree to some of his proposals and was thus "a stumbling block in his way" and this was the real reason for the order of suspension. Raman Nayar, J. held that the charge of malafides was not true inasmuch as the petitioner in the original petition never stood in the way of the Commissioner in the matter of disposal of the land and timber. The other ground, namely, that the order was passed without jurisdiction, was also found against and the original petition was dismissed. However in considering the charge of malafides, Raman Nayar, J. observed that there were grave irregularities in the matter of disposal of the land and timber belonging to the Devaswom and that it was improper for the Commissioner who was to exercise a general power of superintendence over the acts of the Trustees to have initiated certain proposals for the grant of land and timber and to have acted in the manner referred to in the order. The learned Judge observed:

(2.) When C.M.P.No.2264 of 1963 came before a Bench notice was ordered to the Advocate General who appeared and rendered great assistance to us in deciding the matter. Notice was ordered to the respondents in the petition, but except the Government Pleader who appeared for the Commissioner and the petitioner in the Original Petition, the others did not choose to appear.

(3.) The first question for consideration is whether leave to appeal should be granted. It is admitted that the appellant was not eo nomine a party to the original petition. The Commissioner is a corporation sole under S.80 of the Madras Hindu Religious and Charitable Endowments Act, 1951. As Commissioner, the appellant was a party to that petition until he ceased to hold that office on 19-10-1962, so that subsequently and at the hearing of the original petition he was not a party. The fact that the appellant filed certain affidavits even after 19-10-1962, perhaps in support of or in continuation of prior affidavits would not make him a party to the proceeding (See Mahi Chandra v. Secretary, Local Self - Government, AIR 1952 Assam 119). The Code of Civil Procedure does not provide who can prefer an appeal. A party to a proceeding has a right to prefer an appeal when such appeal is allowed by law. As to whether a person who is not a party can file an appeal under such circumstances, courts in India have been following the practice of the Chancery Court, which is summarised in Halsbury's Laws of England as follows:-