GOUHARI SAMANTARAY Vs. SARADA CHARAN DAS

JUDGEMENT

(1.) This is an appeal by the defen-dant against the judgment of the District Judge of Cuttack, dated 18 June 1940, decreeing the plaintiffs suit and ordering a scheme for the management of the religious endowment. The plaintiffs, having obtained the sanction of the Advocate-General under Section 92, Civil P. C. instituted the suit on 3 October 1939, on various allegations against the defendant praying that accounts may be taken from him, a scheme for the management of the trust property may be settled placing the defendant under the control of a committee appointed by the Court, or, in the alternative, for the removal of the defendant owing to his being unfit for the purposes of managing the trust property. The plaintiffs asserted that the endowment in question was a public trust. The defendant, i.e., the appellant, denied the allegations of mismanagement and misconduct and pleaded that the suit should be dismissed as it was not maintainable, having regard to the fact that the Orissa Hindu Religious Endowments Act (IV of 1939) applied, and the District Judge had no jurisdiction to entertain the suit. He further denied that the endowment was a public trust, asserting that it was purely a private trust.

(2.) The Orissa Hindu Eeligious Endowments Act, 1939 (hereinafter referred to as the Act), was enforced on 4 November 1939, i. e., a little more than a month after the suit had been filed. It was urged on behalf of the appellant that the Act has a retrospective effect, and, having regard to its provisions, the District Judge had no jurisdiction to proceed further with the suit. The Act does not in express terms state that it is retrospective. Prima facie that should be enough; but it has to be examined as to whether its provisions indicate clearly, the intention of the Legislature to give it a retrospective effect. By Section 4, the Act expressly repealed certain enactments, as mentioned therein but not Secs.92 and 93, Civil P. C. It further provided by Clause (iii) to Section 5: Any remedy by way of application, suit or appeal which is provided by this Act shall be available in respect of proceedings under the said Acts pending at the time of the commencement of this Act as if the proceedings in respect of which the remedy is sought had been instituted under this Act.

(3.) It is to be noticed that throughout the Act there is no mention that a suit pending under Section 92, Civil P. C., should be treated as a proceeding instituted under the Act. If the Legislature had intended that the Act should apply to pending actions under Section 92, Civil P. C., it would have so provided, as it did in the case of pending proceedings under the various Acts repealed by Section 4. Our attention, however, was drawn to Sub-section (2) of Section 54 of the Act, which states as follows: Secs.92 and 93 and Rule 8 of Order 1 of Schedule 1, Civil P. C, 1908, shall have no application to any suit claiming any relief in respect of the administration or management of a religious endowment and no suit in respect of such administration or management shall be instituted, except as provided by this Act.