The Idol of Sri Kannika Parameswari Amman and Others Vs. the Educational Trustees Co. Ltd., Madras and Others - Court Judgment

Excerpt:
property - possession - sections 1, 2, 10 20 and 29 of tamil nadu buildings (lease and rent control) act, 1960, section 106 of transfer of property act, 1882, sections 6 (20) and 107 of tamil nadu hindu religious and charitable endowments act, 1959, section 83 (1) of tamil nadu district municipalities act, article 26 of constitution of india and section 92 of code of civil procedure, 1908 - suit for recovery of possession with damages for use and occupation filed - trial court held that plaintiff was public trust and entitled for relief - appeal filed against judgment of single judge by which trial court's order reversed - temple was public religious and denominational institution - plaintiff was religious public trust - subsequent government order could not effect pending proceedings.....orderk. m. natarajan, j. 1. this letters patent appeal is directed by the appellant-plaintiffs against the judgment and decree passed by the learned single judge of this court in a. s. no. 632 of 1979 allowing the appeal and setting aside the decree of the sub-court, tiruchirapalli in o.s. no. 603 of 1975. for the sake of convenience, the appellants herein are referred to as the plaintiffs and the respondents herein are referred to as the defendants.the facts which are necessary for the disposal of this appeal can be briefly stated as follows:-- the plaintiffs alleged that the first plaintiff is a religious institution managed exclusively by arya visya community of tiruchirapalli. the suit property belongs to the first plaintiff-temple. the first defendant, educational trustee co. ltd.,.....

Judgment:
ORDER

K. M. Natarajan, J.

1. This letters patent appeal is directed by the appellant-plaintiffs against the judgment and decree passed by the learned single Judge of this Court in A. S. No. 632 of 1979 allowing the appeal and setting aside the decree of the sub-Court, Tiruchirapalli in O.S. No. 603 of 1975. For the sake of convenience, the appellants herein are referred to as the plaintiffs and the respondents herein are referred to as the defendants.

The facts which are necessary for the disposal of this appeal can be briefly stated as follows:-- The plaintiffs alleged that the first plaintiff is a religious institution managed exclusively by Arya Visya Community of Tiruchirapalli. The suit property belongs to the first plaintiff-temple. The first defendant, Educational Trustee Co. Ltd., is running its daily establishment, a daily newspaper publication called 'Dinathanthi'. The first defendant became a tenant in respect of the suit property on a monthly rent of Rs. 60/- and the second defendant is in possession of the suit property. However, both defendants 1 and 2 unauthorisedly sub-let the premises to the third defendant without the knowledge and consent of the plaintiffs. According to the plaintiffs, the defendants were not regular in the payment of rent, and the suit property is required for their personal occupation. Hence a notice of termination of tenancy was issued by the plaintiffs calling upon the defendants to vacate, but in vain. Thereupon they filed the petition H.R.C.O.P. No. 221 of 1971 in the Rent Controller's Court, Tiruchi for eviction on the ground of wilful default in payment of rent and subletting under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). The above petition was dismissed. During the pendency of the above proceedings, the Government of Tamil Nadu passed G.O. Ms. No. 1998 dated 12-8-1974 exempting religious and charitable institutions and trusts from the operation of the Act. In viewof the above Government order the plaintiffs cannot any longer pursue proceedings under the Act. Therefore, after issuing notice under S. 106 of the Transfer of Property Act and terminating the tenancy, the present suit for recovery of possession with damages for use and occupation at the rate of Rs. 2,500/-from 1-6-1975 as well as future damages was filed.

2. The first defendant filed a written statement wherein it is averred that the suit has not been instituted by proper persons. The character of the first plaintiff institution and the trust as a religious one is not admitted. The parties are governed by the lease deed dated 7-7-1954 which provides the right to lease the property. The defendants have been regularly paying the rent of Rs. 60/- as stipulated in the lease deed. It is further submitted that the suit is barred in view of the dismissal of H.R.C.O.P. No. 221 of 1971 as G.O. Ms. No. 1998 dated 12-8-1974 is not applicable to the pending proceedings. Further, the G.O. will not apply to the first plaintiff-Institution. The requirement for personal occupation is denied. Lastly it was submitted that there is no proper notice to quit under S. 106 of the Transfer of Property Act.

3-4. An Additional written statement was filed wherein it was contended that six months notice under S. 106 of the Transfer of Property Act is required, since the suit property had been taken on lease for the specific purpose of running a printing press which is a manufacturing process. In any event, G.O. Ms. No. 1998 was superseded by G.O.Ms. No. 2000 Home, dt. 16-8-1976. Under the later G.O. only buildings belonging to the public religious and charitable institutions are taken out of the purview of the Act. The suit property is not owned by the public trust. Therefore, G.O.Ms. No. 2000 will not apply.

5. In the subsequent written statement it was contended that the suit property belonged to a private trust and hence the suit is not maintainable and the remedy is to take proceedings under the Act.

6. On the above pleadings, the Sub-Judge framed six issues and on a consideration of the oral and documentary evidence, decreedthe suit and the defendants were directed to deliver possession of the suit property to the plaintiffs and also to pay a sum of Rs. 240/- as damages for use and occupation from 1-6-1975 till the suit is filed, with proportionate costs. In other respects, the suit was dismissed without costs. The quantum of future mesne profits was relegated to separate proceedings. Aggrieved by the same, defendants 1 to 3 preferred A.S. No. 632 of 1979 before this Court. As already stated, the said appeal was allowed. Aggrieved by the same, this letters patent appeal is preferred by the plaintiffs.

Learned counsel appearing for the appellants, Mr. M. Raghavan, mainly submitted that in the instant case, in view of the findings rendered by the trial Court as well as the appellate Court, it can be safely held that the plaintiff is a public trust and as such, both the Government orders, viz., G.O.Ms. No. 1998 and G.O.Ms. No. 2000 are applicable. Further, even if it is not so and even assuming for the arguments sake that the plaintiff is a private trust, since the suit was already filed under the earlier G.O. and that it is pending, the rights of the parties were crystallised on the date of institution of the suit and that the subsequent G.O.Ms. No. 2000 has no retrospective effect and even then suit is maintainable. According to the learned counsel, the G.Os. are only executive acts and they have no restrospective effect. On that ground also, the appellants will succeed. On behalf of the respondents, only remand was asked for before the appellate Court and in view of the various dates on which those proceedings were instituted and the Government orders came into force and in view of the finding with regard to the nature of the trust and the evidence available, the question can be decided on the materials before this court and no remand is necessary. The learned counsel further submitted that the learned single Judge having observed that though the idol is the juristic person, in so far as the management of the affairs of the properties dedicated in favour of the temple is vested in the trustees of the temple it could still claim the benefits of G.O.Ms. No. 2000 and to this extent Mr. Raghavan is right and having extracted the finding of the trial Judge that the plaintiff-temple is a denominational temple belonging to Arya Vaisya Community, erred in observing that this aspect whether it was a public trust or not has not been gone into at all and this question is left open to be decided in the subsequent suit to be filed by the present plaintiff on the basis of G.O.Ms. 2000, dated 16-8-1976. In view of the finding of the trial judge which was not set aside by the learned single Judge that it is a denominational temple, the learned single Judge ought to have decided point No. 2 in favour of the plaintiff as he held as far as the first point is concerned namely the effect of G.O. Ms. No. 2000 dated 16-8-1976 with regard to pending proceedings and ought not to have held that it is only academic. According to the learned counsel, the reasons given by the learned single Judge for arriving at a finding by concluding that by virtue of G.O. Ms. No. 2000 dated 16-8-1976 the civil Court has lost jurisdiction and that the earlier G.O.Ms. No. 1998 is superseded and as such the civil Court could not deal with the suit because of the new G.O. No. 2000 does not speak of the pending proceedings. On the other hand, the learned count for the respondents Mr. G. Subramaniam while sup-porting the reasonings of the learned single Judge made the submission that by allowing the R.C.O.P. No. 221 of 1971 to be dismissed on merits on 1-4-1975 after G.O.Ms. 1998 came into force and allowing the same to become final, the plaintiffs are barred under S. 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act from agitating the same by filing a separate suit. Consequently the learned counsel for the respondent submitted that the idol is a juristic person and the right put forward by the idol is characterised for filing of the suit by private right and as such the question of private or public trust does not arise and consequently the very institution of the suit itself is not valid. It was also contended that the learned single Judge was right in accepting their contention that the Court should have jurisdiction to try the suit not only at the time of filing of the suit but also at the time the decree was passed and hence the jurisdiction should continue till the decree was passed. In the instant case, though the suit was originally filed under earlier G.O.Ms.No. 1998 the said G.O.Ms. No. 2000, even though not retrospective, is not applicable to the suit as it is not a public trust and as such the suit is dismissed. Further, the change of law during the pendency of the proceedings by virtue of the second G.O.Ms. No. 2000 must be taken into consideration and if that is applied, the suit is liable to be dismissed.

From the rival contentions made on behalf of both the parties, the points that arise for consideration in the letters patent appeal are :

1. Whether the appellant-plaintiff is entitled to file the suit as a public trust ?

2. What is the effect of the G.O. Ms. No. 2000, Home, dated 16-8-1976 on pending suit filed by the appellant under the earlier G.O.Ms. No. 1998 dated 12-8-1974?

Point 1:-- Certain facts are necessary for deciding this point. The suit property consists of a vacant site 1 acre 17 cents out of 2 acres 73 cents in 1st ward S.No. 369 in Tiruchi Town and the building bearing door No. 11-A. Under Ex.A. 1 dated 2-12-1919 and Ex.A. 2 dated 4-10-1922 which are registration copies of the will and codicil executed by Radha-krishnan Chettiar, it is provided that the suit property should be enjoyed by Ahilandeswari Ammal, his daughter, till her lifetime and then her children should get the suit property absolutely and if she died issuless, the suit property be given to Sri Kannikaparameswari Amman Temple of Tiruchirapalli. In view of the evidence of P.W. 1 that Ahilandeswari Ammal died issueless, the plaintiff became the owner of the suit temple in pursuance of Exs.A. 1 and A. 2. That the appellant temple is the owner of the suit property is not disputed. Originally, the suit has been instituted by Tiruchi Arya Vaisya Nootta Ippandaram Nagarawaru Committee managing the affairs of Tiruchi Sri Kannikaparameswari Amman Koil represented by its President and Secretaries. Since objections were taken that the suit has not been instituted by right person, the cause title was amended by virtue of the order in LA. No. 243 of 1978 as the Idol of Sri Kannikaparameswari Amman managed by Tiruchi Arya Vaisya NoottaIppandaram Nagarawaru Committee managing the affairs of Tiruchi Sri Kannikaparameswari Amman Kil represented by its President and Secretaries. In the description of the plaintiff as the Idol of Sri Kannikaparameswari Amman, it is clearly stated that the said idol of Sri Kannikaparameswari Amman was managed by the Tiruchi Arya Vaisya Nootta Ippandaram Nagarawaru committee. Defendants 1 and 2 became the tenants by virtue (if the lease deed dated 7-7-1954 and they attorned the same to the plaintiff as landlord and owner of the property and the above fact is not disputed. The appellant-plaintiff filed the petition H. R. C. 0. P. No. 221 of 1971 on15-6-1971. While the same was pending, G.O.Ms. No. 1998 dated 12-8-1974 was issued by the Government of Tamil Nadu wherein all the buildings owned by Hindu, Christian and Muslim religious trust and charitable institution were exempted from all the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The said petition was dismissed on 1-4-1975. Subsequently another notification has been made by the Government of Tamil Nadu under G.O. Ms. No. 2000 dated16-8-1976 exempting all the buildings owned by the Hindu. Christian and Muslim public religidus and public charitable institutions. It is clear from the above two Government orders, that under the earlier G.O. all the buildings owned by Hindu, Christian and Muslim religious trust and charitable institutions were exempted from the purview of the said Act, while the later G.O. exempted only the buildings owned by Hindu, Christian and Muslim Public religious and public Charitable Institutions. In this connection, the dispute arose even before the trial Court as to whether the plaintiff is a public religious and charitable institution or a private religious and charitable institution and whether both the G.Os. will apply or the earlier G.O. alone will apply. The trial Judge on the basis of the oral and documentary evidence adduced held in para 12 of the judgment that the evidence of P.W. 1 and Exx.A. 1 and A. 2 will clearly prove that the plaintiff-temple is the denominational temple of the people belonging to the Arya Vaisya Community. In para 13, the trial Court held that since the plaintiff-temple is a denominational temple and as the property has been dedicated to the temple, the suit property must be considered as the property belonging to private religious institution. The learned trial Judge under issue 2 has specifically considered the question as to whether the plaintiff is a public or private religious and charitable institution. Even the leaded single Judge while considering this question as Point No. 2 in para 21 observed as follows:--

'In this case in so far as Ex.A. 1 has effectually granted the entire income in favour of Sri Kannikaparameswari Amman Temple, barring a negligible expenditure on feeding undoubtedly it would be a case of public charity. But unfortunately for the plaintiff this question was not approached in the manner in which it ought to have been approached. Therefore, in this case the position is though the idol is the juristic person, in so far as the management of the affairs of the properties dedicated in favour of the temple is invested in the trustees of the temple, it could still claim the benefits of G.O.Ms. No. 2000. To this extent, Mr. M. Raghavan is right'.

However, the learned Judge after quoting the finding of the trial Court that the plaintiff-temple is a denominational temple of the people belonging to Arya Vaisya Community and as such it is a private trust to which G.O. No. 1998 would apply observed that the aspect whether it was a public trust or not has not!been gone into at all. As rightly argued by the learned counsel for the appellant, the above observation is not factually correct. On going through the pleadings in the suit it is seen that the rival contention between the parities is whether the suit property is owned by a public trust or a private trust. The trial judge has also raised a question under issue No.2 and gave a finding that it is a denominational institution. Having observed that it is a denominational institution, the learned trial Judge observed that it is a private trust. In this connection, the learned counsel for the appellant submitted that the trial Court erred in coming to the conclusion that the denominational institution is a private trust. He also drew the attention of this Court to a passage in the text book of B. K. Mukherjeaon the Hindu Law of Religious and Charitable Trusts (fourth edition) at page 474 where it was observed:--

'As Mitter, J. observed in Nabi Shirazi v. Province of Bengal : AIR1942Cal343 the essential distinction between a public and a private trust is that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be vested in an uncertain and fluctuating body of persons'-either the public at large or some considerable portion of it answering a particular description. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust'.

The learned single Judge extracted the decision reported in Hindu Religious Endowments Board v. Veeraraghavacharlu, AIR 1937 Mad 750. Therein, Varadachariar, J. referring to the decision in Bhupathi Nath Shrititirtha v. Ramlal Makra in, (1910) ILR 37 Cal 128 observed:

'When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or specified individuals, then the endowment can only be regarded as public, intended tobenefit the general body of worshippers.'

In V. K. Varadachari's Law of Hindu Religious and Charitable Endowments (Second edition), at page 17, while dealing with the distinction between a public and a private trust, it was observed:

'The essential distinction between a public and a private endowment is that in the former, the beneficial interest is vested in an uncertain and fluctuating body of persons either the public at large, or some considerable portion of it answering a particular description; in a private endowment, the beneficiaries are de-finite and ascertained individuals or who within a definite time can be ascertained definitely. The essence of a public endowment consists in its being dedicated to the public.'

The learned author also referred to a second distinction as follows:--

'A public trust is of a permanent character and when once the trust is established it will not be open to the founders or trustees to put an end to it or divert the income of the trust properties either to their own use or to any purpose other than that for which the endowment was created.'

It was further observed that in the case of a private trust, the beneficiaries may condone mal administration by trustees. But it cannot be done in the case of a public trust: Lastly, it was observed that charitable trusts in India are public trusts only. But a religious trust may be public or private. In Deoki Nandan v. mUrlidhar, : [1956]1SCR756 , their Lordships have observed the distinction between private and public trust as follows (at p. 136 of AIR).:--

'The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as thebeneficiaries thereunder are specific persons or the general public or sections thereof.'

The learned counsel for the appellant drew the attention of this Court to the decision reported in Sreekannikaparameswari Deva-sthanam v. Salem Municipal Council, (1981) 2 MLJ 199 wherein while considering the question whether Sreekannikaparameswari Devasthanam is entitled to claim exemption . under S. 83(1)(a) of the Tamil Nadu District. Municipalities Act from payment of tax, on the ground that it is a public temple and a place set apart for public worship, and relying on the decision of Division Bench of this Court reported in Sri C. S. Ambigai Temple v. Commissioner, H. R. & C. E., : AIR1966Mad99 , held:

'The Arya Vysya community people of Ammapet in the instant case do form a part of the Hindu community at large. They constitute a considerable section of the Hindu Public. Merely because the place set apart for worship is being used by a particular section of the public it will not cease to be a place set apart for public worship within the meaning of S. 83(1)(a) of the Tamil Nadu Act V of 1920'

In Sri C. S. Ambigai Temple v. Commissioner, H. R. & C. E., Mad : AIR1966Mad99 , which was a case arising under the Madras Hindu Religious and Charitable Endowments Act, a Division Bench was considering the tests with regard to public and private temples and it has recognised the proposition that even a temple dedicated for the purpose of a particular section of the Hindu community could also be a public temple if the community constitutes a considerable section of the Hindu Public and the members of which worship in the temple as of a right. Clause (20) of S. 6 of the Tamil Nadu Hindu Religious and Charitable Endowments Act defines 'temple' as follows:--

'Temple' means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used 'as of right by, the Hindu community or any section thereof, as a place of public religious worship'.

In the instant case, as already stated, under Exs.A. 1 and A. 2, the suit property was dedicated to Sri Kannikaparameswari Amman Temple at Tiruchirapalli and the temple has become the owner of the property and as per Ex.A. 1, the entire income has been granted in favour of the said temple barring a negligible expenditure on feeding, and as rightly observed by the learned single judge it is a case of public charity. In this connection, the learned counsel for the appellant also drew the attention of this Court to ground No. 9 taken by the respondent, who is the appellant before the learned single Judge, wherein it is stated :

'The lower Court having rightly held that the temple is a denominational temple and the suit property belongs to private religious institution and therefore cannot claim exemption under G.O. 2000 dated 16-8-1976 seriously erred in holding that in view of the provisions of G.O.Ms, No. 1998 dated 12-8-1974 the plaintiff has got the right to file the suit.'

It is clear from the above ground that the respondent did not dispute the finding that the appellant-temple is a denominational one; but. only contended that even though it is a denominational temple, in view of the finding that G.O.Ms. No. 2000 is not applicable as it is a private religious institution, the trial Court ought not to have held that the suit is maintainable. In this connection, we wish to point out that in view of the specific pleadings raised in the suit and the finding rendered by the trial Judge, the learned Judge is not correct in observing that the question, whether it is a private trust or public trust, has not been gone into at all, which is essential having regard to the scope of G.O. Ms. No. 2000 dated 16-7-1976 and leaving open the same to be decided in a subsequent suit. The learned counsel for the appellant filed C. M. P. No. 14890 of 1989 praying to permit the appellant to file copy of the judgment dated 14-11-1986 in A.S. No. 47 of 1986 on the file of the V. Additional District Judge, Tiruchirapalli, and certificate No. C. No. 2039/76/ 88-89 Tamil Nadu-V, dated 1-1-1989 and issued by the Commissioner of Income-taxTamil Nadu-V, as additional evidence on their side. As regards the first document, which has been filed along with the petition, it is seen that the appellant herein filed the suit for a declaration that the plaintiff-temple, namely, Arulmighu Kannika Parameswari, is a denominational one belonging to the community of Tiruchi Arya Vaisya Ippandram Nagara Varu and for permanent injunction restraining the defendant, namely, the Commissioner, H.R, & C. E. (Administration) Department and the Assistant Commissioner, from interfering with the management of the temple by the said committee, by alleging that the suit temple is a denominational one and the said community is the absolute owner of the said temple and the suit property and none else has got any right over the management and their rights are protected under Art. 26 of the Constitution of India and under S. 107 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, in O,S. No. 272of 1980. The said suit was decreed on 29-10-1984. On appeal by the Commissioner, H.R. & C.E., (Administration) Department and the Assistant Commissioner, the learned District Judge dismissed the same on 14-11-1986, upholding the decree and judgment rendered by the trial Court. On perusing the affidavit and the counter-affidavit and on hearing the arguments of the learned counsel appearing on either side, we are of the view that for arriving at just decision that it is a denominational institution and a public trust, the said document can be admitted as additional evidence. Accordingly, thejudgment and decree in A.S. No. 47 of 1986 are marked as Exs.A. 8 and A. 9. The said decision also supports the case of the appellant that it is a public religious and denominational institution. For all these reasons, we have no hesitation in holding that the appellant is a religious public trust.

The next contention is that by virtue of the amendment of the description of the plaintiff as the idol of Sri Kannikaparameswari Amman Koil, it is a juristic person entitled to enforce the private trust and that it cannot claim the benefit as a public trust. This question has been elaborately considered by the learned single Judge who came to theconclusion that in this case the position is though the idol is the juristic person, in so far as the management of the affairs of the properties dedicated in favour of the temple is vested in the trustees of the temple, it could still claim the benefits of G. O. Ms. No. 2000. The finding of the learned single Judge is supported by the decision of the Supreme Court in Deoki Nandan v. Murlidhar, : [1956]1SCR756 , and the passage in B. K. Mukherjea on the Hindu Law of Religious and Charitable Endowments and also the passage from H. S. Gour's Hindu Code, fifth edition, at page 246. We are in entire agreement with the view expressed by the learned single Judge in this regard. In view of the fact that even in the cause title it is shown that the affairs of the management of the properties dedicated in the idol is vested in the trustees of the temple, certainly they can claim the benefit of G.O. Ms. No. 2000 as a public religious trust. The decision relied on by the learned counsel for the respondent in Bishwanath v. Radhaballabhji, : [1967]2SCR618 , is not at all helpful to him and it does not support his contention. That was a case where the Manager of a temple alienated the idol's property. A worshipper of the idol filed a suit as the next friend of the idol, challenging the alienation. The reliefs sought were a declaration that the property belonged to the idol and recovery of possession. The suit was decreed by the trial Court and it was upheld by the High Court. It was urged before the Supreme Court that S. 92 of the Civil P.C. was a bar to the suit and that no one but the shebait was entitled to file the suit and represent the deity. It was only in those circumstances, it was held that the suit was filed by the idol for possession of its property from the person who was in illegal possession thereof and therefore it was a suit by the idol to enforce its private right and the suit being one for a declaration of the plaintiffs' title and a declaration of the plaintiffs' title and for possession thereof, it was not a suit for one of the reliefs mentioned in S. 92. It was held that the suit filed by a worshipper on behalf of the idol is certainly maintainable. Such a question does not arise in this case. That the idol is a juristic person is not disputed. But the question which arises for consideration iswhether the endowment made to the temple is a public or private and whether they are entitled to claim the benefits of the G.O. For the reasons already stated and in view of the clear finding of the learned Judge which is supported by case-laws, the said objection before this Court is not tenable. Hence, we answer the first point in favour of the appellant and hold that the plaintiff is entitled to file the suit as public trust.

Point 2:-- In view of the finding on point No. 1, that the suit is maintainable under both the G.Os., the next question whether G.O.Ms. No. 2000 dated 16-8-1976 ousts the jurisdiction of the civil Court and the suit filed by virtue of G.O.Ms. No. 1998 could not continue as the earlier G.O. No. 1998 was superseded and was no longer in the statute book, would not assume much importance. However, in view of the argument advanced on behalf of both the parties, we wish to deal with the same in brief. G.O. Ms. No. 1998 dated 12-8-1974 reads as follows :--

'In exercise of the powers conferred by S. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act lg of 1960, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim Religious trusts and charitable institutions from all the provisions of the said Act.'

G.O.Ms. No. 2000 dated 16-8-1976 reads as follows: --

'In exercise of the powers conferred by S. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of I960) and in supersession of the Home Dept., Notification No. II(2) 3811/74 dated the 12th August, 1974, published at page 444 of Part II, Section 2 of the Tamil Nadu Government Gazette, dated the 21st August, 1974, the Government of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim Religious Public trusts and public charitable trusts from all the provisions of the said Act.'

Section 20 of the Tamil Nadu Buildings (Lease and Rent Control) Act as follows:--

'Notwithstanding anything contained inthis Act, the Government may, subject to such conditions as they deem fit, by notification exempt any building or class of buildings from all or any of the provisions of this Act.'

It is not disputed by the learned counsel for the respondent before this Court as well as the learned single Judge that G.O. Ms. No. 2000 dated 16-8-1976 has no retrospective operations. Further, in the two decisions relied on by the learned single Judge, Shantha Ammal v. Arasadi Karpaga Vinayagar Temple, : (1984)1MLJ36 and Aruniugha Meijhana Sivachariar v. Sub-ramanian : (1984)1MLJ106 , it has been held that G.O.Ms. No. 2000 Home dated 16-8-1976 has no retrospective operation and that the proceedings could not be abruptly stopped by indirectly invoking the retrospective operation of the Government Order, which really had no such operation. But, on the other hand, it is an executive order and it is only prospective in operation and not retrospective. The above decisions reiterated the earlier view taken by a Division Bench of this Court in S. P. Temple v. Manickam Chettiar : (1977)1MLJ425 . It is seen from both the decisions that they relied on the earlier decision in Ethirajammal v. Hassan Khanoo (alias) N. M. Hassan, : AIR1977Mad327 , where it is held that it is not open to the revision-petitioners to urge that even though the subsequent G.O. No. 2000 of 1976 has no retrospective operation, the tenant is entitled to plead non-maintainability of the suit on the basis of the exemption at least from the date of subsequent Government order. It is also seen from the above judgments when once a suit is validly instituted, the suit cannot be abruptly stopped by virtue of the said Government order. The learned single Judge has also observed that the effect of supersession is as though the earlier G.O.Ms. No. 1998 is no longer on the statute book and therefore the civil court must continue to have jurisdiction to deal with that suit, which no doubt might have been filed at a time when it could take cognizance of such a suit. Further the learned Judge observed that the fact that it must continue to have jurisdic-tion is in a way evident from the wording of S. 10 of the Act. The learned single Judge relied on the decision of the Supreme Court in Lakshmi Narayan Guin v. Niranjan Modak, : [1985]2SCR202 . That was a case under the West Bengal Premises Tenancy Act, 1956, which is analogous to S. 10 of the Tamil Nadu Act 18 of 1960. While interpreting S. 13(1) of the West Bengal Premises Tenancy Act, which is to the effect that notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except in one or more of the grounds, their Lordships observed that the change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties. Yet another decision relied on by the learned single Judge is S. B. K. Oil Mills v. SubhashChandraYograj, : [1962]2SCR159 where reliance was placed on S. 12(1) which has provided that no suit shall be instituted by the landlord to recover possession, and in the circumstances, it was held that the language of the sub-section applies equally to suits pending when the Act came into force and those to be filed subsequently. It is only with reference to a particular provision, it was held so. In Nand Kishore Marwah v. Samundri Devi, : [1988]1SCR158 . Their Lordships of the Supreme Court while considering the exemption from the Rent Act to new buildings under the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. have observed that it is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit. In view of the decision of the Supreme Court in Om Prakash Gupta v. Dig Vijendrapal Gupta, : [1982]3SCR491 , they dissented from the view expressed in Vineet Kumar v. Mangal Sain Wadhera, : [1984]2SCR333 since Om Prakash case was rendered by three Judges and it was not brought to the notice of the learned two Judges who rendered the decision in Vineet Kumar case. In Atma Ram v. Ishwar Singh, : (1994)IIILLJ972SC it was observed (at p. 2034 of AIR):--

'In our opinion, bearing in mind the well-settled principles that the rights of the parties crystallise on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta, : [1982]3SCR491 (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystallise the adjudication must be in accordance with law.'

In para 8, their Lordships observed:

'It is well settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim 'actus curiae neminem gravabit' an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the '10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.'

Thus, it is clear from the ratio laid down in the above decisions that change of law which has no retrospective effect during the pendency of the proceedings could not affect the pending proceedings, Further Bench decision of this Court reported in S, P. Temple v. Manicka Chettiar : (1977)1MLJ425 where the Division Bench disagreed with the view of the learned single Judge (Mohan, J., as he then was) who referred the case to the Bench disagreeing with the view taken by Gokulakrishnan, J. (as he then was), held that the order passed by the Rent Controller in a pending proceedings subsequent to the issueof Notification G.O.Ms. No. 1898, Home dated 12th August, 1974, could by no means be a nullity, but within jurisdiction. As already stated, it was held that the power of the Government conferred under S. 29 is purely an executive power and it is only prospective and not retrospective in nature. A Division Bench of this Court in S. N. Kuba v. P. P. I. Vaithyanathan, 1988 TLNJ 1, the view taken in Nand Kishore Marwah v. Samundri Devi, : [1988]1SCR158 that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit was followed and reiterated. In view of the decisions of the Supreme Court in Atma Ram case, : (1994)IIILLJ972SC , Nand Kishore Marwah case, : [1988]1SCR158 , S. P. Temple case : (1977)1MLJ425 and S. N. Kuba case, 1988 TLNJ 1 the subsequent G.O.Ms. No. 2000 passed by the Government of Tamil Nadu under S. 29 could not in any way affect the pending proceedings instituted under the earlier G.O.

It was also contended by the learned counsel appearing for the respondent that in view of S. 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act, since the earlier R.C.O.P. filed by the appellant for eviction on the grounds of wilful default and subletting was dismissed on merits, the subsequent suit is barred under S. 19 of the said Act. On a careful reading of S. 19 of the Act, we find that only the subsequent application for eviction under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 on any of the grounds referred to in the earlier petition, which have been substantially in issue in the earlier proceedings and finally decided in the said proceedings is barred. But that would not in any way affect the filing of civil suit in view of the exemption granted with regard to the provisions of the said Act, after issue of notice to quit for recovery of possession on the basis of the tenancy, under the Transfer of Property Act. Hence, we do not find any merit in the said contention. The decision relied on by the learned counsel for the respondent, which was referred to in the judgment of the learned single Judge, viz., Lakshminarayana Quin v.Niranjad Madak, : [1985]2SCR202 is not at all helpful to the case of the respondent, as in that case the entire Act (West Bengal Premises Tenancy Act) has been extended to a particular area giving protection to tenant against eviction. Their Lordships of the Supreme Court considering the object of the Act and the Legislative command in effect depriving the Court of its unqualified jurisdiction as by virtue of the said Act the jurisdiction of the civil court was divested, held that the Court is bound to take into account the change of law and the benefits of the tenant. But that is not the case here. For all these reasons, we are of the view that the subsequent G.O.Ms. No. 2000 could not in any way affect the pending proceedings instituted already under G.O.Ms. No. 1998 and this point also is answered in favour of the appellant. In view of the findings on these two points, referred above, the appeal is to be allowed.

In the result, the Letters Patent Appeal is allowed and the judgment and decree passed in A.S. 632 of 1979 are set aside and instead the decree and judgment passed in O.S. 603 of 1975 for possession and mesne profits are restored. However, in the circumstances of the case, there will be no order as to costs in this appeal.

7. Appeal allowed.