ORDER
C.V. Ramulu, J.
1. This civil revision petition under Article 227 of the Constitution of India is directed against an Order dated 15-7-2004 made in I.A. No. 829 of 2004 in O.S.No. 188 of 2004 on the file of the learned Principal Junior Civil Judge, Punganur, Chittoor District.
2. Petitioners are defendants and the respondent is the plaintiff in O.S. No. 188 of 2004, which was laid seeking permanent injunction restraining the defendants and their men from interfering with the functioning of the plaintiff as Archaka of Sri Venugopala Swamy Temple, Kudurucheemanapalli. Along with the suit, the respondent-plaintiff also filed LA. No. 829 of 2004 under Order XXXIX Rules 1 and 2 of the Civil Procedure Code seeking temporary injunction pending disposal of the suit. By an order dated 15-7-2004, the trial Court while depensing with urgent notice granted temporary injunction. Challenging the same, the present civil revision petition is filed.
3. At the outset, it may be mentioned that though without filing any vacate petition before the trial Court, straight away this civil revision petition is filed by the defendants mainly on the ground that the very suit itself is not maintainable in respect of the disputes relating to management of an endowment in view of Section 151 read with Section 87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act') and as such, the lower Court is denuded of its jurisdiction and the suit itself is riot maintainable; therefore, the interim injunction order passed by the Court below is liable to be set aside.
4. Sri C.V. Nagarjuna Reddy, learned Counsel for the petitioners strenuously contended that the very suit is not maintainable before the civil Court in view of Section 151 read with Section 87 of the Act. He contended that not only the suit, but also the other legal proceedings in respect of administration or management of an institution or endowment or any other matter of dispute related to that (where there is a provision made in the Act) are barred from being raised before the civil Court. For the disputes for which a provision is available under the Act for decision of the authority, the civil suit or other legal proceedings are barred. Section 87(1) of the Act takes care of all the disputes relating to administration and management of an institution or endowment or any other matter of dispute to be determined by the authority under the Act. Therefore, the very suit laid before the civil Court is not maintainable and this Court under Article 227 of the Constitution of India can prevent gross injustice or failure of justice when the Court or Tribunal has assumed jurisdiction, which it does not have. In this regard, he relied upon the judgment reported in Surya Dev Rai v. Ram Chancier Rai 2003 (5) ALD 36 (SC) : 2003 (5) ALT 19 (SC), and drawn attention of the Court to Paragraph-23, which reads as under :
23. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. (1986) Supp. SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to Tribunals as well. Though the power is akin to that of an ordinary Court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
Learned Counsel for the petitioners also submitted that even otherwise, the devotees of the Temple complained about the negligent behaviour of the respondent-plaintiff to the petitioners herein stating that they are being deprived of their entry into the temple to offer their prayers even on festival days; therefore, the family members of petitioners 2 to 4 summoned the respondent and asked the reasons for dereliction of his duties in the suit temple. Thereafter, the respondent voluntarily surrendered the keys of the temple to the brother of the petitioners in the presence of the devotees stating that due to his old age and his frequent visits to Bangalore city to supervise the temples, where his sons are working as Archakas, it is not convenient for him to continue as Archaka in the suit temple, which is in a small village and his income from it, is very meager when it is compared with the income derived from the temples in Bangalore city and he has no grievance for making alternative arrangements. Accordingly, a new Archaka, by name, Seshadri was appointed for the suit temple and he has been performing duties with effect from 1-4-2004 to the utmost satisfaction of the devotees. Therefore, even granting of injunction does not arise. Further, no notice as required under Order XXXIX Rules 1 and 2 of CPC was issued to the petitioners and there was absolutely, no urgency in dispensing with the service of notice and granting interim injunction as sought for.
5. Per contra, Sri J. Ugra Narasimha, learned Counsel for the respondent, at the outset, contended that the civil revision petition itself is not maintainable under Article 227 of the Constitution of India against the impugned order. The petitioners neither filed any vacate stay petition nor an appeal as required under Order XLIII Rule 1(r) of CPC. It is incorrect to say that a suit is barred under Section 151 of the Act. The provision under Section 151 of the Act does not have any non-obstante clause and it simply contemplates bar of suits of certain nature, mainly, in respect of administration or management of an endowment or institution, or any other matters of dispute where there is a provision under the Act. May be, under Section 87 of the Act, there is a provision as to resolving the disputes in respect of management and administration of endowment or other matters relating thereto. That itself does not mean that a suit of this nature is not maintainable before the civil Court. In the suit, the question that falls for adjudication of the civil Court is the hereditary nature of the Archakatvam held by the respondent-plaintiff and injuncting the petitioners from interfering in performance of his duties as hereditary Archaka of the temple. May be, the duties attached are religious in its nature, but it is the office held by the respondent-plaintiff and there is no other forum available to the respondent to restrain the petitioners from interfering into his Archakatvam. It is altogether different if the officials of the endowments department, who are specifically authorized under the Act has prevented the respondent from doing Archakatvam. Petitioners, having no authority under the law, cannot prevent the respondent from doing his duties as per law. Apart from this, the respondent is also being thrown out of his private property. Therefore, in the very nature of the litigation, even if there is some power in the authorities as contemplated under Section 87 of the Act, the suit is maintainable and the bar of jurisdiction as contained under Section 151 of the Act does not come in the way of the respondent in maintaining the suit before the competent civil Court. In this regard, the learned Counsel drawn attention of the Court to Section 9 of CPC, which reads as under :
9. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II.-For the purposes of this section, it is immaterial whether or not any lees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
Learned Counsel for the respondent also submitted that the position as was available before 1976 is further made clear after the amendment that even a suit of this nature is maintainable in view of Explanation I of Section 9 of CPC. May be, certain Courts are precluded from entertaining certain suits, but if the principal question in the suit is of civil nature, i.e., right to property or to an office and adjudication incidentally involves the determination relating to religious rights and ceremonies, it does not cease to be a suit of civil nature and the jurisdiction of the civil Court is not barred. The civil Court has jurisdiction to adjudicate upon those questions also or decide principal question, which is of civil nature. Explanation I to Section 9 of CPC has been added by Act 104 of 1976. Before this Explanation, there was a divergence of judicial opinion as to whether a suit relating to religious office to which no fee or emoluments are attached can be a suit of civil nature. But the legal position as of now is clarified by Explanation I which specifically provides that the suit relating to religious office is maintainable, whether or not it carries any fees or whether or not it is attached to a particular place. In support of his contentions, the learned Counsel drawn attention of the Court to the decision of the Apex Court in Firm I.S. Chetty and Sons v. State of Andhra Pradesh : [1963]50ITR93(SC) , wherein it was observed as under :
6. Mr. Ranganadham Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant's suit was incompetent because he argues that the High Court has misjudged the effect of the provisions of Section 18-A. In dealing with the question whether Civil Court's jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil Courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil Courts to deal with a case brought before it in respect of some of the matters covered by the said statute.
He further drawn attention of this Court to the decision of the Supreme Court reported in P.M.A Metropolitan v. Moran Mar Marthoma : AIR1995SC2001 , wherein it has been held thus :
27. To begin with the objection to the maintainability of the suit under Section 9, of the Civil Procedure Code was probably not raised in 1954 and 1959 and if raised was not pressed. But that by itself may not preclude defendant-appellant from raising it, even in this Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree passed without jurisdiction is non est in law. What then is the scope of the Section? Does it comprehend suits for declaration that the Syrian Churches are episcopal? Could the respondent-plaintiff claim declaration that Malankara Association had become autocephalous and no priest could refuse to recognize the authority of the Catholico? Could the plaintiff seek injunction, restraining the priests or Deacon from performing any other sacramental services and prohibits the defendants from interfering with the administration of the Malankara Chruch? How would the bar of jurisdiction operate if only part of relief is cognisable?.
One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognizable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai v. Vijay Kumar : [1974]3SCR882 . The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word 'shall' and the expression, all suits of a civil nature unless expressly or impliedly barred.
The learned Counsel for the respondent has also drawn attention of the Court to the judgment of the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani : [2003]3SCR1149 , wherein it has been held as under :
19. We find, as would be dealt with hereinafter, the first two pleas devoid of any merit, but partial merit in the last plea. As to the first submission, we find that the Civil Court does not suffer from any inherent lack of jurisdiction. Where there is a special Tribunal conferred with jurisdiction or exclusive jurisdiction to try particular class of cases even then the civil Court can entertain a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of civil Court is not to be readily inferred. (See Dhulabhai etc. v. State of Madhya Pradesh and Anr. : [1968]3SCR662 . An objection as to the exclusion of civil Court's jurisdiction for availability of alternative forum should be taken before the trial Court and at the earliest failing which the higher Court may refuse to entertain the plea in the absence of proof of prejudice.
21. In the present case there is nothing to show that the defendant is also a member of the Society or claiming under a member. The plaintiff does not have any dispute with another member of the Society or the Society itself. The question of jurisdiction is to be determined primarily on the averments made in the plaint. The plaint as framed by the plaintiff is for declaration of title as owner (and in the alternative, his possessory title) and seeking restoration of possession, as also issuance of mandatory and preventive injunctions against a recent encroachment. Neither is it a dispute between the parties referred to in clauses (a) to (e) of Sub-section (1) of Section 75, nor does the nature of the dispute fall in clauses (a) to (c) of Sub-section (2) of Section 75, so as to be one excluded from the domain of a civil Court. At no stage of the proceedings has the defendant-appellant taken any objection to the jurisdiction of the civil Court to try the suit. We are not satisfied - even prima facie to hold that the Civil Court suffered from any jurisdictional incompetence to hear and try the suit. Several revision petitions were preferred in the High Court against the orders passed at several stages of the proceedings of the trial Court. An objection to the jurisdiction of the trial Court was not taken before the High Court in any of the civil revisions. It will be too late in the day to permit such an objection being taken and urgent at the hearing before this Court. The plea as to want of jurisdiction in the trial Court is devoid of any merit and is, therefore rejected.
Apart from the above, it is also contended that there is no machinery provided or any provision is made under the Act to decide the dispute of this nature, since the continuation of Archakatvam and restraining the people from interfering into his office of Archaka cannot be decided by any of the authorities under the Act. Archakatvam is an Office and tinkering with the rights of an Archaka is nothing but infringement of his civil rights. Therefore, a suit before the competent civil Court is maintainable. In the present suit, the question of religious rights and ceremonies are not in dispute. The dispute is as to preventing the person holding the religious office from performing his duties. As such, the civil Court is not denuded of its jurisdiction under Section 9 of CPC read with Explanation I thereof. In this regard, the learned Counsel relied upon Sinha Ramanuja v. Ranga Ramanuja : [1962]2SCR509 , in which it was held as under :
9. ...As a corollary to this, it follows that a Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. It implies further that questions as to religious rites or ceremonies cannot independently of such a right from the subject-matter of civil suit. Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a temple cannot be placed on a higher footing than the religious rites or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies. Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple....
It is also contended by the learned Counsel for the respondent that where mixed questions of law and fact, some of which can be decided by the civil Court, are involved, whether there is a bar in any Act as to entertainment of a suit, the competent civil Court can entertain a civil suit and adjudicate the same as per law.
6. Be that as it may, learned Counsel for the petitioners contended that the nature of the suit and the averments made therein decide as to ousting of jurisdiction of civil Court in view of Section 151 read with Section 87 of the Act, which read as under:
151. Bar of jurisdiction :-No suit or other legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding for which provision is made in this Act shall be instituted in any Court of Law except under and in conformity with the provisions of this Act.
87. Power of Deputy Commissioner to decide certain disputes and matters :-(1) The Deputy Commissioner having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question,-
(a) whether an institution or endowment is a charitable institution or endowment;
(b) whether an institution or endowment is a religious institution or endowment;
(c) whether any property is an endowment, if so, whether it is a charitable endowment or a religious endowment.
(d) whether any property is a specific endowment.
(e) whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;
(f) whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or
(g) where any property or money has been given for the support of an institution or endowment....
(2) to (6)....
Learned Counsel for the respondent-plaintiff stated that, in the facts and circumstances of the case, it cannot be said that a suit of this nature is barred under Section 151 of the Act. He brought to the notice of this Court, the impugned order of the Court below, which reads as under :
Heard the Counsel for the petitioner. Verified the petition and affidavit and also the documents available on record, i.e., 1) Decision in Form No. II of Inams Dy. Tahsildar dated : 27-9-1958, (2) Receipt issued by Assistant Commissioner, dated 22-1-1982; (3) Receipt dated 18-2-1982 issued by Assistant Commissioner of Endowments, for payment of contribution, 4) Pamphlet, 5) Demand notice date 30-3-1991 issued by Joint Commissioner of Endowments, Hyderabad. Found the prima facie case, balance of convenience in favour of the petitioner and also irreparable loss. The respondents causing troubles and creating problems to the petitioner and also seriously trying to attack the petitioner without attending poojas and Archakatvam of the suit schedule temple, which is very inconvenient and irreparable loss and injury to the petitioner with mala fide intention the respondents high handedly behaving and creating problems to the petitioner.
In the result, the urgent notice is dispensed with and temporary injunction is granted restraining the respondents, their men and agents from interfering with the peaceful performance of Archakatvam in the suit/ petition schedule temple by the petitioner, till 10-8-2004. Comply order 39 Rule 3 of CPC. Issue urgent notice to respondents by 10-8-2004.
and submitted that considering the documents placed before it, the trial Court rightly granted the interim injunction and the civil revision petition is liable to be dismissed.
7. Thus, the question that arises for consideration in this revision is as to whether this Court can go into the maintainability of the suit, at this stage, in exercise of its powers under Article 227 of the Constitution of India without examining the averments of the plaint, written statement etc.?
8. It is altogether different, when such question of jurisdiction was raised before the trial Court and the trial Court decided as to that aspect. Probably, under those circumstances, this Court in exercise of the revisional powers under Article 227 of the Constitution is justified in going into the aspect of jurisdiction - whether in the teeth of express bar under Section 151 of the Act read with Section 9 of CPC as amended in 1976, a suit of this nature can be entertained or not. I am of the opinion that this Court is handicapped to go into this aspect, since this revision is filed, as stated above, under Article 227 of the Constitution directly against an ad interim injunction granted by the trial Court. No written statement is filed by the petitioner-defendants in the above suit. Whether the civil Court has got jurisdiction or not, it all depends upon the pleadings on either side and also the object of the Act and unless and until this is examined, no correct decision can be reached.
9. A reading of the plaint, a copy of which is made available on record, would show that it is the case of the plaintiff (respondent herein) that the defendants (petitioners herein) have nothing to do with the plaint schedule Temple, except they have a right to offer prayers to the Lord and he is also bound to co-operate with the wishes of the devotees to perform his part of Archakatvam. Neither the defendants nor villagers have anything to say with the management of the affairs of the Temple, but they can only complain to the endowment authorities, if there are any lapses. But, neither the defendants nor any third person, however big he may be, has any locus standi to interfere with either the management of the temple lands or the affairs of the temple, except through proper channel i.e., the Assistant Commissioner of Endowments or the Officials of the said Department. It is only the Endowments Department, which is competent to remove/ appoint the Archaka of any Temple, only after necessary enquiry preceded by notice of such action to the concerned Archaka. As far as he is concerned, there is absolutely, no displeasure from the Endowments Department, since he has been performing his duties to the satisfaction of the Department and the devotees of the Temple.
10. In view of these assertions made in the plaint and the averments made in the affidavit filed in support of C.M.P. No. 12951 of 2004 filed in this revision, I am of the view that even the question of bar of jurisdiction of the civil Court has to be decided primarily by the trial Court and not in a revision under Article 227 of the Constitution of India, where the pleading are not compete nor the impugned order was passed by the trial Court after hearing both the parties as to the maintainability of the suit. Hence, the decisions relied upon by the learned Counsel on either side need not be gone into.
11. In the facts and circumstances of the case, this Court is of the opinion that the matter needs to be remanded to the trial Court for deciding the issue of jurisdiction of civil Court in entertaining the suit as a preliminary issue. The petitioner-defendants are at liberty to file their written statement within one month from the date of receipt of a copy of this order and within one month thereafter, the trial Court shall decide the issue of maintainability of the suit as a preliminary issue. However, this will not preclude the petitioner-defendants from filing a petition seeking vacation of the ad interim injunction order granted under Order XXXIX Rules 1 and 2 of CPC in LA. No. 829 of 2004 on 15-7-2004. The I.A. seeking vacation of ad interim injunction, if any, filed and the preliminary issue as to maintainability of the suit shall be taken up and disposed of together. Till such time, the impugned order passed by the trial Court shall continue and the interim order passed by this Court on 6-8-2004 in CMP No. 12951 of 2004 shall stand vacated. It is made clear that the Court below shall decide the matter uninfluenced by the observations, if any, made in this order.
12. Accordingly, the civil revision petition is disposed of. No order as to costs.