KUMARASWAMI ASARI Vs. POOJARI LAKSHMANA GOUNDAN

JUDGEMENT

(1.) These applications arise out of an appeal preferred against the final decree of the Subordinate Judge of Salem in O.S. No. 4 of 1916. The suit was by three worshippers who had obtained the necessary sanction of the Collector under Section 92, Civil Procedure Code, for a scheme and other reliefs relating to the Sri Kandaswami, also known as Subramania Swami temple. One of the defences of the defendants who were the pujaries of the temple was that the temple was not a public temple, but a private one. The Subordinate Judge upheld the contention and dismissed the suit. On appeal there was difference of opinion between two learned judges and the matter went up to a Full Bench of this Court and was decided in Letters Patent Appeal No. 10 of 1917 that the temple was a public temple and the suit was remanded for the purpose of framing a scheme and determining the properties of the temple. Against this judgment of the High Court an appeal was preferred to their Lordships of the Privy Council and their Lordships of the Privy Council affirmed the decision of the High Court with the result that the suit went back to the Subordinate Judge. The Subordinate Judge, on the 30th November, 1925, passed a decree. A scheme was framed but as regards the valuable properties which are alleged to belong to the temple of the value of nearly two lakhs yielding an income of Rs. 6,000 a year he held they were private properties of the 1 defendant. This judgment was pronounced on the 30 November 1925, and against that judgment an appeal was preferred by two of the worshippers on 22 April, 1926 to the High Court. The appeal which was presented within time was returned for re-presentation on the 23 July 1926, because some formal defects had to be corrected. Between the 30 November, 1925 and the 23 July, 1926, there were proceedings which were going on against the 1 defendant who was appointed as Interim Receiver. The affidavits show that so far as the 1 defendant is concerned, his conduct was adversely commented upon by the High Court in certain proceedings before the High Court and so far as we can see from the remarks of the learned judges of the High Court the 1 defendant's conduct was not honest in several matters. The proceedings about his Receivership which were pending before the Subordinate Judge came on the 30 July, 1926, and although till then we find hot contests between the persons who presented the appeal to the High Court and the Receiver who was the 1 defendant in the suit, all on a sudden the petition against the Receiver was not pressed, so that allegations which would have been usually enquired into against this receiver, the 1 defendant, were suddenly abandoned. We find "that the appeal, which was returned for re-presentation on the 23 July, 1926, about 7 days before this petition, was not pressed and was not re-presented subsequently and it is easy from these facts to assume that the non-re-presentation had an intimate connection with the withdrawal of the allegations against the Receiver on the 30th July, 1926. As we said before, this action was a representative action and the suit being filed on by the three plaintiffs on behalf of themselves and of the general body of worshippers, the appeal was also an appeal which was presented for the benefit of the temple and the general body of worshippers. Had the appeal been prosecuted, it would have bound the whole general body. When some of the worshippers found that their allegations against the Receiver were suddenly withdrawn on the 30 July, 1926, they suspected that there was something wrong and they admittedly came to Madras to see what became of the appeal that was presented and was returned for re-presentation on the 23 July, 1926, and they found that the appeal was not re-presented. They then went to the Sub-Court and applied for a copy of the judgment and decree on the 4 August, 1926, and got the copies on the 9 August. On the 11 August they presented an appeal with an affidavit stating the facts which led to the present course being adopted. They allege that the non-re-presentation was due to an improper motive and they say that they are informed that Rs. 10,000 was paid to the three appellants in the case and the matter was withdrawn and allowed to drop. They allege that it will be a great loss to the temple if the appeal is not properly disposed of. When the matter came on before us one preliminary objection taken was that the petitioners before us were not worshippers of the temple and, as this would go to the root of the application, we directed the Subordinate Judge to take evidence and return a finding as to whether they were worshippers or not. The Subordinate Judge has gone into the evidence adduced before him and submitted a finding that the present petitioners are worshippers and an objection has been filed, but we see No. reason to hold that the Subordinate Judge was wrong in holding that these; petitioners were worshippers of the temple. There is thus clearly a locus standi to apply.

(2.) The next question is whether, under the circumstances of this case, this application should be granted. We are inclined to hold on the facts of this appeal that, this appeal having been presented in time by two worshippers for themselves and other worshippers and having been returned for re-presentation, there is no question of excusing the delay under Section 5 of the Limitation Act. Under the rules of the High Court, if the re-presentation is not made within the time allowed, the court can, on proper grounds shown, excuse that delay, and receive the appeal. The suit being, a representative suit, we think that two or more worshippers who would be constructive parties to the appeal have a right to require the appeal which was properly presented to be re-presented and received by the court and adjudicated on its merits. They are in the position of being parties and, if one of the parties receives the appeal memo. back from the court and does not present it, it is difficult to see how the other persons, parties to the suit, can be prejudiced by the action of one person. The fact that the present petitioners are not on record by name would not make any difference as they are constructive parties bound by any decision that may be passed in the appeal just as if they were parties named in cause-title of the appeal and it seems to us that they are entitled to see that proper adjudication is made in the appeal. In the present case we are not satisfied that the non-re- presentation was bona fide and we come to the conclusion that there has been some indirect motive for the appeal not having been represented. We think that the court has in cases under Section 92, ample power to see that the interests of the institution are protected. Even incases of compromise it has now been decided by their Lordships of the Privy Council that persons not actually on record have a right to apply to prevent the parties on record from compromising to the detriment of the institution. We would only refer to the case in Sankaralinga Nadan V/s. Rajeswara Dorai (1908) LR 35 IA 176 : ILR 31 M 236 : 18 MLJ 387 (PC). In the present case till the High Court passed orders upon the appeal petition presented in time we think that the appeal should be treated as pending for the purposes of any application the worshippers may make and in this view there is no question of limitation under the Limitation Act and we can treat the present application as an application in a pending appeal. As the original papers have been taken away and not brought back, the present petitioners had under the rules to present a copy of the judgment and decree and the grounds of objection and they, in order to prevent any further difficulty or troubles as to limitation, have again paid the stamp upon the appeal which they presented, but this would not make the present appeal a fresh appeal by third parties requiring excuse under Section 5 of the Limitation Act. Even assuming that this appeal should be treated as a fresh appeal presented on the date when the present petition was presented, we think that ample material exists under Section 5 of the Limitation Act to excuse delay. We have already set out the facts and we think that the appellants who presented the appeal on the 22 April, 1926, and took it back for re-presentation on the 23 July, 1926, have fraudulently and with an improper motive not re-presented the appeal. We can find nothing bona fide in the whole transaction If the appellants were honest, they could easily have come before us in this matter and brought in the original papers and explained to us why it was that it was not re-presented. The 1st respondent filed an affidavit saying that he consulted some vakil friends and that they advised there was not much chance of altering the scheme. The vakil who now appears is not the vakil who appeared then and we are not prepared to accept the vague statement that some vakil friends advised him, especially as we think, the appeal is by no means a hopeless one. The statement that the object for which the suit was brought was established is not correct, because valuable properties which were claimed for the temple by the plaintiffs were the subject matter of the appeal. The affidavit is vague and we do not think that the first plaintiff's affidavit can be acted upon. We think the present petitioners have acted with due deligence and bona fides.

(3.) Under these circumstances we are of opinion that whether the case be looked at from the point of view of re-presentation or fresh presentation of an appeal, there are grounds which entitle us to excuse the delay either in re-presentation or in presentation of the appeal and admit the appeal now filed by the petitioners. This will enable the whole matter to be gone into when the appeal is disposed of and prevent valuable properties being lost to the temple. A perusal of the Subordinate Judge's judgment shows that the appeal cannot be said to be a hopeless one and the worshippers are entitled to the benefit of the adjudication by the High Court. The respondents will pay the costs of these applications both here and at the enquiry. We fix Rs. 100 as vakil's fee.