immadi Chetty Ravindra Vs. Sri Kamakshi Devi Sametha, - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - prasad placed strong reliance on the judgment in w. 84. mode of eviction on failure to removal of the encroachments as directed by the deputy commissioner: ganga rami reddy placed strong reliance on the decision of this court in h. 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. no doubt, this question definitely can be agitated in an application for temporary injunction, since while deciding an application for temporary injunction, the essential ingredients of prima facie case, balance of convenience and irreparable loss may have to be established and the well settled principles in this regard need not be repeated again in elaboration. it is not as though the appellate court cannot effectively go into this question of inherent lack of jurisdiction, want of jurisdiction or in-competency of a civil court to entertain a civil suit by virtue of the bar imposed by a statutory provision.orderp.s. narayana, j.1. c.r.p.m.p. no. 7748 of 2008 is filed to vacate the interim suspension granted by this court in c.r.p.m.p. no. 7431 of 2008, dated 16.12.2008. when this application to vacate interim suspension was coming up for hearing, the counsel on record sri k. ananda rao, sri p. ganga rami reddy and sri v.t.m. prasad made certain submissions and a further request was made that the civil revision petition itself may be disposed of finally. hence, the civil revision petition had been taken up for final hearing even at the stage of interlocutory and the same is being disposed of by this court.2. sri p. ganga rami reddy, learned counsel representing vacate petitioner, second respondent in the civil revision petition, raised a preliminary objection relating to the maintainability of the civil revision petition under article 227 of the constitution of india. the learned counsel, no doubt, would contend that the civil court has jurisdiction to entertain the suit and also had taken this court through the specific stand taken in the affidavit filed in support of the vacate application relating to the factum of possession.3. c.r.p.m.p. no. 7418 of 2008 was filed to dispense with the filing of certified copy of the order made in i.a. no. 923 of 2008 in o.s. no. 217 of 2008, dated 01.12.2008. c.r.p.m.p. no. 7419 of 2008 was filed praying for leave to file the present civil revision petition as against an order made in i.a. no. 923 of 2008 in o.s. no. 217 of 2008 on the file of the principal junior civil judge, kovur. the said applications were ordered on 11.12.2008 and on 16.12.2008 while admitting the civil revision petition, interim suspension was granted as prayed for in c.r.p.m.p. no. 7431 of 2008. the second respondent in the civil revision petition filed c.r.p.m.p. no. 7748 of 2008 praying for vacation of the said interim suspension.4. sri k. ananda rao, learned counsel representing the revision petitioner would maintain that in the suit o.s. no. 217 of 2008 the present revision petitioner, who is the really affected party, was not shown as a party and with the leave of this court, the present civil revision petition had been preferred. the learned counsel also would maintain that the civil court has no jurisdiction to entertain a suit of this nature. the counsel had drawn the attention of this court to section 151 of the a.p. charitable and hindu religious institutions and endowments act, 1987 (hereinafter in short referred to as 'the act' for the purpose of convenience). the learned counsel had taken this court through the elaborate grounds raised in the present civil revision petition filed under article 227 of the constitution of india and would maintain that though this order is an appealable order, the present revision petitioner, a non-party to the suit, can definitely maintain the civil revision petition as against an order of temporary injunction as an aggrieved party or affected party, under article 227 of the constitution of india, especially, in the light of the fact that civil court has no jurisdiction at all to entertain the suit. the learned counsel also had taken this court through the grounds made in the civil revision petition and also the stand taken in the affidavit filed in support of the application praying for suspension and further the averments made in the reply affidavit and also relied on certain proceedings. the counsel also relied on certain decisions.5. on the contrary, sri p. ganga rami reddy, representing second respondent in the civil revision petition had taken this court through the stand taken by the second respondent in the affidavit filed in support of the vacate application and would maintain that this is an order passed under order xxxix rules 1 and 2 of the code of civil procedure (hereinafter in short referred to as 'the code' for the purpose of convenience) and an appeal would lie to the appellate court. when that being so, even if the present revision petitioner may not be a party to such litigation, leave could have been obtained from the appellate court while challenging the said order by way of civil miscellaneous appeal and instead of doing so, filing civil revision petition under article 227 of the constitution of india is impermissible in law. the counsel also relied on certain decisions to substantiate his submissions. while further elaborating his submissions, the learned counsel also explained the factual controversy between the parties and also several other facts in detail.6. sri v.t.m. prasad, learned standing counsel representing first respondent- sri kamakshi devi sametha sri ramalingeswara swamivari devasthanam, ramatheertham, strongly relied on the decision in sri sanjeeva anjaneya swamy vari devasthanam, rajahmundry, represented by its archaka-cum-trustee, mattam venkata subrahmanayam v. thokkula dasaradharamayya and anr. writ appeal no. 1207/2008 dt. 25.11.2008 and would maintain that in the light of the said decision since the civil court has no jurisdiction at all, there is no point in driving the revision petitioner to invoke the appellate remedy.7. heard the counsel on record.8. the present revision petitioner preferred the civil revision petition under article 227 of the constitution of india as against an order made in i.a. no. 923 of 2008 in o.s. no. 217 of 2008, dated 01.12.2008, on the file of the principal junior civil judge, kovur, potti sriramulu nellore district.9. it is not in serious controversy that the present revision petitioner was not made a party and the second respondent herein, vedicherla venkatakrishna reddy, filed an application i.a. no. 923 of 2008 in o.s. no. 217 of 2008 on the file of the principal junior civil judge, kovur, under order xxxix rules 1 and 2 of the code praying for the relief of temporary injunction restraining the respondent from conducting public auction on 01.12.2008 and stay all further proceedings of action of leasehold rights of the plaint schedule property showing sri kamakshi devi sametha sri ramalingeswara swamivari devasthanam, ramatheertham, represented by its executive officer as defendant. the learned principal junior civil judge, kovur, by order dated 01.12.2008, allowed the said application granting temporary injunction till the disposal of the suit.10. aggrieved by the same, the revision petitioner, who is said to be the really affected party, filed the present civil revision petition under article 227 of the constitution of india after obtaining leave as already aforesaid. this court in c.r.p.m.p. no. 7431 of 2008 granted interim suspension as prayed for on 16.12.200811. sri v.t.m. prasad placed strong reliance on the judgment in w.a. no. 1207 of 2008, dated 25.11.2008 in sri sanjeeva anjaneya swamy vari devasthanam, rajahmundry, represented by its archaka-cum-trustee, mattam venkata subrahmanayam v. thokkula dasaradharamayya and anr. (supra) wherein the learned division bench at paras 9 to 15 observed as hereunder.at this juncture it is necessary to note the relevant portions under sections 84 and 151 of the act as under:84. mode of eviction on failure to removal of the encroachments as directed by the deputy commissioner:(1)....(2) nothing in sub-section (1) shall prevent any person aggrieved by the order of the deputy commissioner under sub-section (4) of section 83 from instituting a suit in a court to establish that the charitable or religious institution or endowment has no title to the land, building of space;provided that no civil court shall take cognizance of any suit instituted after six months from the date of receipt of the order under sub-section (4) of section 83;provided further that no such suit shall be instituted by a person who is let into the possession of the land, building or space, or who is a lessee, license or mortgagee, of the institution or endowment;(3)....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 institution in any court of law except under and in conformity with the provisions of this act.from the above provision, under sub-section (2) of section 84 it is clear that if any person is aggrieved by the order passed by the deputy commissioner under section 83(4), he can file a suit to establish that the charitable or religious institution has no title to the land in dispute. in other words, if any person is aggrieved by the order passed under section 83(4) alone, and that he is disputing the title of the charitable or religious institution, he can file a suit. further, as per the second proviso to sub-section (2) of section 84, it is further clear that no suit as envisaged under sub-section (2) of section 84 shall be instituted by a person, who is let into the possession of the land, building or space or who is a lessee, licensee or mortgagee of the institution or endowment.therefore, as per the second proviso to sub-section (2) of section 84 of the act, it is unambiguous that a person who is permitted to be in possession of the land of the religious institution or endowment by way of lease, license or mortgage, is barred from instituting a civil suit. further, section 151 of the act contemplates that no suit or other legal proceedings in respect of administration or management of an institution or endowment or any other matters of dispute for determination or deciding for which provision is made in the act shall be filed in any court of law, except under and in conformity with the provisions of the act.in the present case, the 1st respondent is admittedly not disputing the title of the appellant - temple and he was declared by the deputy commissioner as an encroacher under section 83 of the act and his claim is that by way of mutual understanding/oral lease, he was permitted to continue in possession over the land in question. when this is the case of the 1st respondent, in view of the second proviso to sub-section (2) of section 84 and as he is not disputing he title of the appellant - temple, he is barred from instituting a suit in a civil court.a perusal of the facts in w.a. no. 873/2007 dated 30.11.2007 would reveal that the appellants therein sought for a direction to the executive officer of shri venkateswara swamy devasthanam, dwaraka tirumala, west godavari district to extend the lease and to quash the notice dated 5.7.2007 issued for auction of the land in question for grant of lease. their case is hat they have been cultivating the land for the last many years and thus have acquired a right for granting the lease under the act read with the andhra pradesh charitable and hindu religious institutions and endowments lease of agricultural lands rules, 2003, to the exclusion of others. the contention of the temple therein is that they are not the lessees and that mere depositing of maktas will not entitle them to claim leasehold rights. considering these facts and circumstances and also considering the submission of the counsel for the appellants that the appellants may be granted some time till harvesting the existing crop, the division bench, while granting time to the appellants, passed certain directions and the direction no. 4, which is relevant, is extracted as under:1 ....2....3....4. no civil court in the state of andhra pradesh shall entertain any suit for permanent or temporary injunction, which may be filed by the appellants for the purpose of being allowed to retain possession of the land.' in view of the above legal position, we are of the view that the observation of the learned single judge that the 1st respondent has an alternative remedy under section 84(2) of the act and further giving him liberty to file a suit and till such time granting stay of eviction, cannot be sustained.12. sri p. ganga rami reddy placed strong reliance on the decision of this court in h.r. shenoy and ors. v. m. murali krishna and ors. 1990 (1) alt 336 wherein the learned judge held that an order granting interim injunction or temporary injunction are always subject to the final orders in the injunction petition. interim injunction order or temporary injunction order pending final orders on the injunction petition filed under order 39, rule 1 read with section 151 of the code is only appealable under order 43, rule 1(r) of the code but not revisable under section 115 of the code, or under article 227 of the constitution of india.13. further reliance was placed on the decision in chinnareddivari ramachandra reddy and ors. v. archakam sreenivasa bhattar : 2006(1)ald539 wherein the learned judge of this court at paras 7, 8, 9, 10 and 11 observed as hereunder. 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. 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.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.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.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 i. a. 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. accordingly, the civil revision petition is disposed of. no order as to costs.'14. in the light of the different provisions of the act and the scheme of the act, whether bar imposed on jurisdiction of the civil courts under section 151 of the act aforesaid can be made applicable or not, may have to be gone into at the appropriate stage. no doubt, this question definitely can be agitated in an application for temporary injunction, since while deciding an application for temporary injunction, the essential ingredients of prima facie case, balance of convenience and irreparable loss may have to be established and the well settled principles in this regard need not be repeated again in elaboration.15. while deciding the question of prima facie case, the aspects of question of want of jurisdiction, inherent lack of jurisdiction and in-competency of the civil court to entertain a particular suit, can be gone into. reliance also was placed on the under noted decisions.(1) firm i.s. chetty and sons v. state of andhra pradesh : [1963]50itr93(sc) ;(2) p.m.a. metropolitan v. moran mar marthoma : air1995sc2001 ;(3) ramesh chand ardawatiya v. anil panjawani : [2003]3scr1149 ;(4) sinha ramanuja v. ranga ramanuja : [1962]2scr509 ;16. when a specific remedy by way of civil miscellaneous appeal under order xliii rule 1(r) of the code is provided for to an aggrieved party, may be with the leave of the court as in the present case, since the present revision petitioner is a non-party to the suit, such party cannot be permitted to challenge such order by filing civil revision petition under article 227 of the constitution of india. it is not as though the appellate court cannot effectively go into this question of inherent lack of jurisdiction, want of jurisdiction or in-competency of a civil court to entertain a civil suit by virtue of the bar imposed by a statutory provision. these aspects also can be gone into by the appellate court while deciding whether it would be just and proper to grant a temporary injunction under order xxxix rules 1 and 2 of the code in the said set of facts.17. hence, the revision petitioner is not justified in straight away approaching this court under article 227 of constitution of india when the remedy by way of civil miscellaneous appeal is available to him. however, in the peculiar facts and circumstances, since this court granted interim suspension as prayed for and further in the light of the fact that the revision petitioner is a non-party to the suit and the application for temporary injunction, the interim suspension granted by this court be operative for a period of two weeks and further liberty is given to the revision petitioner to invoke appropriate remedy by way of a civil miscellaneous appeal in accordance with law to enable him to obtain appropriate orders from the appellate court in this regard, the aforesaid limited interim suspension is being hereby granted by this court.18. the civil revision petition is accordingly disposed of. no costs.19. let the papers be returned to the learned counsel representing the revision petitioner.

Judgment:
ORDER

P.S. Narayana, J.

1. C.R.P.M.P. No. 7748 of 2008 is filed to vacate the interim suspension granted by this Court in C.R.P.M.P. No. 7431 of 2008, dated 16.12.2008. When this application to vacate interim suspension was coming up for hearing, the counsel on record Sri K. Ananda Rao, Sri P. Ganga Rami Reddy and Sri V.T.M. Prasad made certain submissions and a further request was made that the civil revision petition itself may be disposed of finally. Hence, the civil revision petition had been taken up for final hearing even at the stage of interlocutory and the same is being disposed of by this Court.

2. Sri P. Ganga Rami Reddy, learned Counsel representing vacate petitioner, second respondent in the civil revision petition, raised a preliminary objection relating to the maintainability of the civil revision petition under Article 227 of the Constitution of India. The learned Counsel, no doubt, would contend that the civil court has jurisdiction to entertain the suit and also had taken this Court through the specific stand taken in the affidavit filed in support of the vacate application relating to the factum of possession.

3. C.R.P.M.P. No. 7418 of 2008 was filed to dispense with the filing of certified copy of the order made in I.A. No. 923 of 2008 in O.S. No. 217 of 2008, dated 01.12.2008. C.R.P.M.P. No. 7419 of 2008 was filed praying for leave to file the present civil revision petition as against an order made in I.A. No. 923 of 2008 in O.S. No. 217 of 2008 on the file of the Principal Junior Civil Judge, Kovur. The said applications were ordered on 11.12.2008 and on 16.12.2008 while admitting the civil revision petition, interim suspension was granted as prayed for in C.R.P.M.P. No. 7431 of 2008. The second respondent in the civil revision petition filed C.R.P.M.P. No. 7748 of 2008 praying for vacation of the said interim suspension.

4. Sri K. Ananda Rao, learned Counsel representing the revision petitioner would maintain that in the suit O.S. No. 217 of 2008 the present revision petitioner, who is the really affected party, was not shown as a party and with the leave of this Court, the present civil revision petition had been preferred. The learned Counsel also would maintain that the civil court has no jurisdiction to entertain a suit of this nature. The counsel had drawn the attention of this Court to Section 151 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter in short referred to as 'the Act' for the purpose of convenience). The learned Counsel had taken this Court through the elaborate grounds raised in the present civil revision petition filed under Article 227 of the Constitution of India and would maintain that though this Order is an appealable order, the present revision petitioner, a non-party to the suit, can definitely maintain the civil revision petition as against an order of temporary injunction as an aggrieved party or affected party, under Article 227 of the Constitution of India, especially, in the light of the fact that Civil Court has no jurisdiction at all to entertain the suit. The learned Counsel also had taken this Court through the grounds made in the civil revision petition and also the stand taken in the affidavit filed in support of the application praying for suspension and further the averments made in the reply affidavit and also relied on certain proceedings. The counsel also relied on certain decisions.

5. On the contrary, Sri P. Ganga Rami Reddy, representing second respondent in the civil revision petition had taken this Court through the stand taken by the second respondent in the affidavit filed in support of the vacate application and would maintain that this is an order passed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) and an appeal would lie to the appellate court. When that being so, even if the present revision petitioner may not be a party to such litigation, leave could have been obtained from the appellate court while challenging the said order by way of civil miscellaneous appeal and instead of doing so, filing civil revision petition under Article 227 of the Constitution of India is impermissible in law. The counsel also relied on certain decisions to substantiate his submissions. While further elaborating his submissions, the learned Counsel also explained the factual controversy between the parties and also several other facts in detail.

6. Sri V.T.M. Prasad, learned Standing Counsel representing first respondent- Sri Kamakshi Devi Sametha Sri Ramalingeswara Swamivari Devasthanam, Ramatheertham, strongly relied on the decision in Sri Sanjeeva Anjaneya Swamy Vari Devasthanam, Rajahmundry, represented by its Archaka-cum-Trustee, Mattam Venkata Subrahmanayam v. Thokkula Dasaradharamayya and Anr. Writ Appeal No. 1207/2008 dt. 25.11.2008 and would maintain that in the light of the said decision since the civil court has no jurisdiction at all, there is no point in driving the revision petitioner to invoke the appellate remedy.

7. Heard the counsel on record.

8. The present revision petitioner preferred the civil revision petition under Article 227 of the Constitution of India as against an order made in I.A. No. 923 of 2008 in O.S. No. 217 of 2008, dated 01.12.2008, on the file of the Principal Junior Civil Judge, Kovur, Potti Sriramulu Nellore District.

9. It is not in serious controversy that the present revision petitioner was not made a party and the second respondent herein, Vedicherla Venkatakrishna Reddy, filed an application I.A. No. 923 of 2008 in O.S. No. 217 of 2008 on the file of the Principal Junior Civil Judge, Kovur, under Order XXXIX Rules 1 and 2 of the Code praying for the relief of temporary injunction restraining the respondent from conducting public auction on 01.12.2008 and stay all further proceedings of action of leasehold rights of the plaint schedule property showing Sri Kamakshi Devi Sametha Sri Ramalingeswara Swamivari Devasthanam, Ramatheertham, represented by its Executive Officer as defendant. The learned Principal Junior Civil Judge, Kovur, by order dated 01.12.2008, allowed the said application granting temporary injunction till the disposal of the suit.

10. Aggrieved by the same, the revision petitioner, who is said to be the really affected party, filed the present civil revision petition under Article 227 of the Constitution of India after obtaining leave as already aforesaid. This Court in C.R.P.M.P. No. 7431 of 2008 granted interim suspension as prayed for on 16.12.2008

11. Sri V.T.M. Prasad placed strong reliance on the judgment in W.A. No. 1207 of 2008, dated 25.11.2008 in Sri Sanjeeva Anjaneya Swamy Vari Devasthanam, Rajahmundry, represented by its Archaka-cum-Trustee, Mattam Venkata Subrahmanayam v. Thokkula Dasaradharamayya and Anr. (supra) wherein the learned Division Bench at paras 9 to 15 observed as hereunder.

At this juncture it is necessary to note the relevant portions under Sections 84 and 151 of the Act as under:

84. Mode of eviction on failure to removal of the encroachments as directed by the Deputy Commissioner:

(1)....

(2) Nothing in Sub-section (1) shall prevent any person aggrieved by the order of the Deputy Commissioner under Sub-section (4) of Section 83 from instituting a suit in a Court to establish that the charitable or religious institution or endowment has no title to the land, building of space;

Provided that no Civil Court shall take cognizance of any suit instituted after six months from the date of receipt of the order under Sub-section (4) of Section 83;

Provided further that no such suit shall be instituted by a person who is let into the possession of the land, building or space, or who is a lessee, license or mortgagee, of the institution or endowment;

(3)....

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 institution in any Court of Law except under and in conformity with the provisions of this Act.

From the above provision, under Sub-section (2) of Section 84 it is clear that if any person is aggrieved by the order passed by the Deputy Commissioner under Section 83(4), he can file a suit to establish that the charitable or religious institution has no title to the land in dispute. In other words, if any person is aggrieved by the order passed under Section 83(4) alone, and that he is disputing the title of the charitable or religious institution, he can file a suit. Further, as per the second proviso to Sub-section (2) of Section 84, it is further clear that no suit as envisaged under Sub-section (2) of Section 84 shall be instituted by a person, who is let into the possession of the land, building or space or who is a lessee, licensee or mortgagee of the institution or endowment.

Therefore, as per the second proviso to Sub-section (2) of Section 84 of the Act, it is unambiguous that a person who is permitted to be in possession of the land of the religious institution or endowment by way of lease, license or mortgage, is barred from instituting a civil suit. Further, Section 151 of the Act contemplates that no suit or other legal proceedings in respect of administration or management of an institution or endowment or any other matters of dispute for determination or deciding for which provision is made in the Act shall be filed in any court of law, except under and in conformity with the provisions of the Act.

In the present case, the 1st respondent is admittedly not disputing the title of the appellant - Temple and he was declared by the Deputy Commissioner as an encroacher under Section 83 of the Act and his claim is that by way of mutual understanding/oral lease, he was permitted to continue in possession over the land in question. When this is the case of the 1st respondent, in view of the second proviso to Sub-section (2) of Section 84 and as he is not disputing he title of the appellant - Temple, he is barred from instituting a suit in a civil court.

A perusal of the facts in W.A. No. 873/2007 dated 30.11.2007 would reveal that the appellants therein sought for a direction to the Executive Officer of Shri Venkateswara Swamy Devasthanam, Dwaraka Tirumala, West Godavari District to extend the lease and to quash the notice dated 5.7.2007 issued for auction of the land in question for grant of lease. Their case is hat they have been cultivating the land for the last many years and thus have acquired a right for granting the lease under the Act read with the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Lease of Agricultural Lands Rules, 2003, to the exclusion of others. The contention of the Temple therein is that they are not the lessees and that mere depositing of Maktas will not entitle them to claim leasehold rights. Considering these facts and circumstances and also considering the submission of the counsel for the appellants that the appellants may be granted some time till harvesting the existing crop, the Division Bench, while granting time to the appellants, passed certain directions and the direction No. 4, which is relevant, is extracted as under:

1 ....

2....

3....

4. No Civil Court in the State of Andhra Pradesh shall entertain any suit for permanent or temporary injunction, which may be filed by the appellants for the purpose of being allowed to retain possession of the land.' In view of the above legal position, we are of the view that the observation of the learned single Judge that the 1st respondent has an alternative remedy under Section 84(2) of the Act and further giving him liberty to file a suit and till such time granting stay of eviction, cannot be sustained.

12. Sri P. Ganga Rami Reddy placed strong reliance on the decision of this Court in H.R. Shenoy and Ors. v. M. Murali Krishna and Ors. 1990 (1) ALT 336 wherein the learned Judge held that an order granting interim injunction or temporary injunction are always subject to the final orders in the injunction petition. Interim injunction order or temporary injunction order pending final orders on the injunction petition filed under Order 39, Rule 1 read with Section 151 of the Code is only appealable under Order 43, Rule 1(r) of the Code but not revisable under Section 115 of the Code, or under Article 227 of the Constitution of India.

13. Further reliance was placed on the decision in Chinnareddivari Ramachandra Reddy and Ors. v. Archakam Sreenivasa Bhattar : 2006(1)ALD539 wherein the learned Judge of this Court at paras 7, 8, 9, 10 and 11 observed as hereunder. 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. 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.

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.

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.

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 I. A. 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. Accordingly, the civil revision petition is disposed of. No order as to costs.'

14. In the light of the different provisions of the Act and the scheme of the Act, whether bar imposed on jurisdiction of the Civil Courts under Section 151 of the Act aforesaid can be made applicable or not, may have to be gone into at the appropriate stage. No doubt, this question definitely can be agitated in an application for temporary injunction, since while deciding an application for temporary injunction, the essential ingredients of prima facie case, balance of convenience and irreparable loss may have to be established and the well settled principles in this regard need not be repeated again in elaboration.

15. While deciding the question of prima facie case, the aspects of question of want of jurisdiction, inherent lack of jurisdiction and in-competency of the Civil Court to entertain a particular suit, can be gone into. Reliance also was placed on the under noted decisions.

(1) Firm I.S. Chetty and Sons v. State of Andhra Pradesh : [1963]50ITR93(SC) ;

(2) P.M.A. Metropolitan v. Moran Mar Marthoma : AIR1995SC2001 ;

(3) Ramesh Chand Ardawatiya v. Anil Panjawani : [2003]3SCR1149 ;

(4) Sinha Ramanuja v. Ranga Ramanuja : [1962]2SCR509 ;

16. When a specific remedy by way of civil miscellaneous appeal under Order XLIII Rule 1(r) of the Code is provided for to an aggrieved party, may be with the leave of the Court as in the present case, since the present revision petitioner is a non-party to the suit, such party cannot be permitted to challenge such order by filing civil revision petition under Article 227 of the Constitution of India. It is not as though the appellate court cannot effectively go into this question of inherent lack of jurisdiction, want of jurisdiction or in-competency of a Civil Court to entertain a civil suit by virtue of the bar imposed by a statutory provision. These aspects also can be gone into by the appellate court while deciding whether it would be just and proper to grant a temporary injunction under Order XXXIX Rules 1 and 2 of the Code in the said set of facts.

17. Hence, the revision petitioner is not justified in straight away approaching this Court under Article 227 of Constitution of India when the remedy by way of civil miscellaneous appeal is available to him. However, in the peculiar facts and circumstances, since this Court granted interim suspension as prayed for and further in the light of the fact that the revision petitioner is a non-party to the suit and the application for temporary injunction, the interim suspension granted by this Court be operative for a period of two weeks and further liberty is given to the revision petitioner to invoke appropriate remedy by way of a civil miscellaneous appeal in accordance with law to enable him to obtain appropriate orders from the appellate court in this regard, the aforesaid limited interim suspension is being hereby granted by this Court.

18. The civil revision petition is accordingly disposed of. No costs.

19. Let the papers be returned to the learned Counsel representing the revision petitioner.