MADHAVAPERUMAL DEVASTHANAM MYLAPORE MADRAS Vs. TMT DHANLAKSHMI

JUDGEMENT

(1.) THE appellant in the Second Appeal is the first defendant in the suit, which is a temple represented by its Executive Officer. When the appeal was part-heard, the appellant filed C.M.P. No. 8049 of 1996 for receiving the documents filed therewith as additional evidence in the appeal. It is a petition under O. 41, R. 27 of the Code of Civil Procedure. Under that Rule, the Court may allow additional evidence, if (i) the court, from whose decree the appeal is preferred, has refused to admit evidence, which ought to have been admitted, or (ii) the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or (iii) the appellate court requires any evidence to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. THE present case cannot fall under (i). In the affidavit filed by the present Executive Officer in support of the petition, it is averred that after assuming charge of the temple, he searched the old records and on going through the same, he found that necessary records were kept in a bundle. Finding that certain certificates issues by the Collector of Madras on 26.8.1822 were available, he applied to the Joint Director, Central Survey Department, Madras-5 for furnishing an Extract from Madras Town Survey Register, since the survey was conducted in 1895-1896. A certified copy of the said extract was issued on 23.4.1996 from which it is seen that the suit property T.S. No. 3814 is shown as belonging to the appellant-temple. It is stated in the affidavit that the said documents could not be filed earlier in spite of due diligence and the Extract from Madras Town Survey Register was furnished only recently and non-production of the same earlier is neither wilful nor wanton. It is also stated that the documents are necessary for proper appreciation of the point arising for consideration in the appeal.

(2.) THUS, an attempt is made in the affidavit to bring the case under (ii) and (iii). In the counter affidavit filed by respondents 1 to 4 it is stated that the documents cannot be filed at the Second Appellate stage, as nothing prevented the temple authorities from filing documents at the earliest point of time. It is also pointed out that the suit is of the year 1982. It is also averred that the documents are not relevant and admissible. After discussing the relevancy of the document, it is alleged that a notice was issued to the Devasthanam during the pendency of the suit to produce documents, viz., patta and blue-print sketch showing the location of R.S. No. 3814 and a notice on 12.4.1986 to the counsel for the temple to produce the register in which in page 48 it was stated that the Devasthanam was entitled for Melwaram. It is also pointed out that the Second Appeal has been in the list for more than two years and there is no justification for admitting additional evidence at this late stage.

(3.) IT should not be forgotten that an idol is in the position of a minor. IT has been held in Bishwanath v. Radha Ballabhji (AIR 1967 S.C. 1044) that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interests. The principle would certainly apply in a case where the persons in management of a temple have not been as diligent as is necessary in conducting a litigation on behalf of the temple. The court can take notice of the fact that Executive Officers who are put in charge of the temple are changed periodically and in many a case, they do not get fully acquainted with the history or affairs of the temple. If there is some slackness on the part of the Executive Officer or even the trustees of the temple, it is the duty of the Court to see that the idol does not suffer thereby. Courts should be astute to protect the interests of an idol in any litigation.