J SUBBIER Vs. MABBOY NAIDU

JUDGEMENT

(1.) This petition is instituted as a petition filed under both Sections 115 and 141 of the Civil Procedure Code. Section 141 corresponds to the first, paragraph of the old Section 647 and is as follows: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction.

(2.) Mr. T.R. Ramachandra Aiyar, who appeared for the petitioner, admitted during the course of the argument that this revision petition was not filed under both the Sections 115 and 141 of the Civil Procedure Code, but only under Section 115, corresponding to old Section 622, and that Section 141 ought to have appeared in the third ground of the memorandum of the Civil revision petition and not in the title of the petition. The memorandum contains another mistake. As corrected, or rather fully expanded, the third ground, according to the contention of Mr. T.R. Ramachandra Aiyar, would be as follows: The District Judge acted with material irregularity in not disposing of the original petition before him in accordance with the provisions of Section 141 of the Civil Procedure Code, and according to Rule 94 of the Civil Rules of Practice, framed by the High Court under paragraph 2 of Section 652 of the old Civil Procedure Code, corresponding to Section 122 of the new Civil Procedure Code.

(3.) I do not think it is necessary to consider Rule 94 of the Civil Rules of Practice as that rule, if it goes beyond Section 141, is ultra vires and so far as it is in conformity with it, it is unnecessary. While Section 141 contains the qualifying words "as far as it can be made applicable," these words are omitted in Rule 94 of the Civil Rules of Practice. But such omission cannot make the procedure in regard to suits applicable in their entirety to. all original petitions if by the very nature of such petitions portions of the procedure relating to suits cannot be made applicable to such petitions It was on this ground that in a foot-note case in Amdoo Miyan v. Muhammad Davud Khan Bahadur 24 M. 685 at p. 687 : 11 M.L.J. 326, Subramania Aiyar and Davies, JJ., held that in respect of an application under Section 18 of the Religious Endowments Act, the ordinary procedure in suits as to giving notice to the other side and to taking evidence before deciding the case had no application, notwithstanding the terms of Section 141 of the old Civil Procedure Code (corresponding to present Section 141). So in the foot-notecase in Venkateswara, In re 10 M. 98, a Full Bench of five Judges held that notwithstanding Section 647, no appeal lay against an order passed under Section 18 of the Religious Endowments Act. I, therefore, agree with my learned brother that the nature of the application under Section 10 of the Religious Endowments Act invoking the District Judge s power of appointment to the vacancy of a member of the Devastanam Committee makes that part of the procedure in the trial of suits which relates to the taking of evidence by the Court not obligatory on the District Judge, though there is nothing, of course, to prevent his taking such evidence. I am farther of opinion, for the same reasons as were given in the footnote case in Venkatswara, In re 10 M. 98, that not only are the provisions of the Civil Procedure Code as to an appeal inapplicable to an order passed under Section 10 of the Religious Endowments Act, but the provisions by way of revision are also inapplicable. In the Privy Council case in Minakshi Naidu v. Subramanya Sastri 11 M. 26 at pp. 34, 35 : 14 I.A. 160 : 5 Sar. P.C.J. 54 : 11 Ind. Jur. 393 their Lordships treat Sections 14 to 20 of the Act as standing on a somewhat different footing from Section 10, and while the proceedings of the Court under Sections 14 to 20 are treated as coming within the Ordinary Original Civil Jurisdiction of the District Court, an order of appointment under Section 10 is treated as outside the Ordinary Civil Jurisdiction. Hence the appointment order under Section 10 is much more informal than the decision given under any of the Sections 14 to 20. In the case in Somasundara Mudaliar v. Vythilinga Mudaliar 19 M. 285 : 6 M.L.J. 92, the question whether the High Court could interfere under Section 622 of the old Civil Procedure Code with an order under Section 5 of the Act XX of 1863 appointing a temporary manager, seems not to have been argued and was not considered in the judgment. As the petition in revis on was dismissed on the merits, that case cannot be treated as an authority for the proposition that the High Court had jurisdiction to interfere in revision under Section 622 with an order passed under Section 5.