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CASE LAW ON INTERPRETATION OF STATUTES

CASE LAW ON INTERPRETATION OF STATUTES



HARMONISE IT WITH THE OBJECT

In Arnit Das v State of Bihar, AIR 2000 SC 2264 : It was held that the preamble is a key to unlock the legislative intent, if the words employed in an enactment may spell a doubt as to their meaning, it would be useful to so interpret the enactment as to harmonise it with the object which the legislature had in its view.


NON OBSTANTE CLAUSE

Non obstante clause will have overriding effect only on rules which were in existence at the time when such rule had been brought into force. — State of West Bengal and Others v Madan Mohan Ghosh and Others, AIR 2002 SC 2273.


INTENTION OF LEGISLATURE

In Bhatia International v Bulk Trading S.A. and Another, AIR 2002 SC 1432, it was held that the conventional way of interpreting a statute is to seek the intention of its makers and if statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the Legislature. In Kastwchand and Another v Harbilash and Others, (2000)7 SCC 611, the aspect of determination of legislative intent had been discussed.


PRECEDENTS

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. — Padmasundara Rao (dead) and Others v State of Tamil Nadu and Others, AIR 2002 SC 1334.


TITLE

In State of West Bengal and Others v Marian Mohan Ghosh and Others, AIR 2002 SC 2273, it was held that title of enactment will not determine its nature.


PURPOSIVE CONSTRUCTION

In Chinnamma George and Others v N.K. Raju and Another, AIR 2000 SC 1565 : (2000)4 SCC 130, United Bank of India, Calcutta v Abhijit Tea Company Private Limited and Others, (2000)7 SCC 357, the purposive construction had been explained.


DEFINITIONS IN OTHER STATUTES

lagatram Ahuja v Commissioner of Gift Tax, Hyderabad, (2000)8 SCC 249, it was held that words and expressions defined in one statute as judicially interpreted do not afford a guide to construction of such words and expressions in another statute unless both of them are pari materia legislations or it is specifically so provided in one statute to give the same meaning to the words as defined in other statute-Plain meaning to be given


GRAMMATICAL MEANING

In Gurudevdatta VKSSS Maryadit and Others v State of Maharashtra and Others, AIR 2001 SC 1980, it was held that the cardinal principle of interpretation of statute is that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary.



CASE LAW ON CIVIL PROCEDURE CODE

case law index on civil procedure code

CIVIL PROCEDURE CODE
compiled by
Sridhara babu.N



Jurisdiction;- SEC ;-9,10,20,21,24,etc.

● Civil court have jurisdiction to try suit unless barred by statute. ILR 1993 [1] KAR 1244
● Civil suit regarding acquisition proceedings is not maintainable & by implication cognizance sec 9 barrs it Hence no injunction can be granted.ILR 1997 [3] SC 2372
● Jurisdiction of court. AIR 1959 MAD 227.
● Objection to territorial jurisdiction-Consequential failure of justice. 1965 [1] MYLJ 669, 1970 [2] MYLJ 317,ILR 1995 [4] KAR 2965,
● H-court or D-court may transfer suit from a court which has no jurisdiction to try it.1971 [1] MYLJ 10, 1972 [1] MYLJ 200.
● Bar of civil court jurisdiction ;- 1975[1]MYLJ 182, 1974 [2] MYLJ 499, ILR 1978[2] MYS 1364
● Plea of inherent jurisdiction - executing court. 1986 ILR MYS 2631.
● Suit for demarcation of boundary of property is maintainable. AIR 1987 SC2137
● Conferring the jurisdiction on court by mutual consent not permissible. AIR 1992 SC 1514.
● Erroneous exercise of jurisdiction is different from lack of inherent jurisdiction. The former results in erroneous decree the later in a decree in nullity.AIR1993BOM 304.
● While transferring of suits justice according to law is done. AIR 1990 SC 113.
● No case can be transferred to another court unless first court is biased or some reasonable ground exists.1989 SCJ 180.
● A suit on a promissory note lies at the place where it is drawn ,signed, & dated AIR1952 PEP4
● MC -case-jurisdiction;- If the wife never lived at the Husband House the suit for RCR must be brought in the court of the place where the wife resides. Suit for Dower lies in a court within whose jurisdiction the marriage & Divorce took place. AIR 1991 SC1104. AIR 1993 KER 87, 1993 MARRIAGE L J 210.
● Suit includes appeal under sec 10 -AIR 1954 PUN 113.
● Lok Adalat jurisdiction:-Only when both the parties are amenable to compromise or settlement ILR 2001 [3] KAR 4338., ILR 2001[4] KAR 4704.
● Jurisdiction of civil court express Bar under section 68 of KLR ACT ILR 1996 [1] KAR 715.
● A suit for direction to any authority to act in accordance with law is not maintainable. ILR1998KAR2612.
● Inherent lack of JURISdn- lack of competence -lack of jurisdn-under High court's act-ILR2001(2) KAR2030.(FB)
Exclusion of jurisdiction, under municipal act ,does not bar civil court from examining if statutory provisions complied or not. ILR 1996 (3) KAR 2516.
● When alternative remedy is available under the provisions of wt & meas act – suit barred- ILR 2001(3)KAR3816.
● CIVIL CASE against KEB for disconnecting electricity without following procedure-ILR 1996 (4) KAR 2916.
● It would not be proper to grant P.I. AGAINST statutory authorities from performing its functions & Duties. ILR 1993 KAR 3398.
● Suit for Declaration of caste, wrongly written in educational records , when he actually belongs to other caste . ILR 1996 (4) KAR 3693.
● Recovery of debts of over 10 lakhs & over is barred by act civil court has no jurisdiction. ILR 1996 (4) KAR 3244.
The above act is struck as ultra vires- ILR 2001(2) KAR 1809.
● Maintainability of suit before small cause court challenged in CRP –ILR 1997 (2) KAR 1535.
● Civil Rights & Family Court:- House & open space given by her husband long back ago was interfered by son & son-in-law of her husband. Suit for injunction filed by her, -such suits fall squarely under cl (d) of the explanation to section 7 of the family courts act & they can be tried & disposed off by family courts – transferred. ILR2001(3)KAR4004.DB.
● Declaration- Regrant- when question of regrant is pending , civil courts cannot grant decree declaring title to watan lands-ILR 2002(1)KAR 724.
● JURISDICTION: When there is agreement- & property in other place:- ILR 2002 (1) KAR 717.
● Decree of Divorcee in foreign court- ILR 2002 (2) KAR 2835.DB.
● Jurisdiction & appeal :- ILR 1997 (2) KAR 1291.














RESJUDICATA;- SECTION;- 11;-

● Injunction suit not res-judicata for a later suit. ILR 1988[3] KAR 2102 DB.
● Subsequent suit canvassing other grounds. ILR 1978 [2] MYS 1555
● Suit dismissed for default under O9 R 2&3[failure to take steps & when neither party appears]-Separate suit lies. MYLJ dt 23-3-1972 SNRD it no 108.
● Constructive Resjudicata …… ILR 1997 KAR [3]1865. AIR 1970 SC 1525.ILR 1995 [4] KAR 3376. AIR 1995 RAJ 94,97,98.
● It is no answer to a plea of resjudicata that a argument which was not advanced in the previous suit .AIR 1977 SC 1680.
● A judgement obtained by fraud or collusion does not operate as RJ. AIR 1982 NOC 233 GAU. AIR 1993 KER 273.
● Principles of RJ does not apply to Income tax proceedings. AIR 1992 SC 377.
● Decision of SC that water disputes tribunal can give interim relief forms part of reference to SC opinion , decision operates as RJ & cannot be reopened .Cauvery water dispute case;- AIR 1992SC 522.
● If a decision of a court or a Tribunal is without jurisdiction such a deciscion or finding cannot operates as a resjudicata in subsequent proceedings. AIR 1998 SC 972.
● A Revenue court decision on a question of Title will not bar a suit in the ordinary civil courts , unless otherwise provided by law . A finding of a criminal court also does not bind the civil court. AIR 1978 KAR 213, AIR 1962 SC 147.
● A Previous deciscion does not operate as RJ on the same question when there has been a change of law subsequent to the deciscion. AIR 1981 NOC 211 [DELHI] .
● The deciscion not based on merits would not be RJ in subsequent suits;- AIR 1966SC 1332
● When the suit is withdrawn ,without reserving Right to file fresh suit, R J applies to fresh suit. ILR 1995 [2] KAR 2419 [DB].
● Judgement in rem falls outside the scope sec;11 of cpc. Judgement of court's exercising ,Probate,Matrimonial,Admirality, or Insolvency jurisdiction is a judgement in rem
● No question of resjudicata where fraud or collusion present ILR1996[1]KAR165[SC]
● Issue of Law overlooking statutory provision not conclusive & binding even between parties ,being per- incuriam & not Resjudicata ILR1995(4)KAR 2804.
● Abandonment of part of the claim in previous suit - plf in second suit claiming substantially same relief on the genises of cause of action arose earlier - held second suit barred -ILR 1996(2) KAR 1905.
● In earlier suit for INJ –observed that particular tank is private- such observation cannot amount to resjudicata in subsequent suit. ILR 2001 (3) KAR 3562.
● Declaration suit Decreed, then suit for Damages was filed by showing the cause of action as the date of finality of suit- no Resjudicata. ILR 1998 (1) KAR 1050.
● Orders passed on IA & subsequent or earlier orders operate as resjudicata in subsequent stage of the same proceedings ILR 2002 (2) KAR 2675.
● An observation or even a finding that the defendant has not proved his title in a suit schedule property does not operate as resjudicata. ILR 1998 (3) KAR 3005.




SECTION 34:-

● Even though plaint not specifying the grant of interest in a suit for recovery of money plaintiff entitled to statutory Interest of 6% p.a – normal costs unless special costs are awarded.- ILR 1997 (1) KAR 553.
● It is not obligatory to award contract rate of interest in all cases, discretion is vested with court to award lesser rate of interest taking into account the circumstances of the case :- ILR 1997 (2) KAR 1042.


SECTION 36:-

● Interim order not obeyed – respondent can move court for contempt or file execution – ILR 1998 (4) KAR 4236.


SECTION 52:-

● Executability of decree against legal heirs of deceased permissible against property left by deceased under sec 52, however gratuity being terminable benefit could not be attached even in thje hands of legal heirs. Section 52 does not contravene section 60. ILR 1997 (1) KAR 645.






SECTION 51:-

● Arrest warrant only by complying sec 51 – ILR 1998 (4) KAR 4167.


SECTION 54;-

● The duty of DC is to effect partition & deliver possession 1985[1] ILR KAR 462.
● Partition effected by collecter civil court have no jurisdiction to meddle 1965[2] MYLJ 768., 1981[2]MYLJ 465.,AIR 1964MYS 169.,
● Prevention of Fragmentation Act ILR 1993 KAR 3271.,
● AC order can be executed by Tahsildar -no re delegation of power.ILR 1992 KAR 2152.,
● ILR 1990 KAR 1265.,


SECTION 60:-

● PENSION –exempted from attachment. – ILR1997(2)KAR738.
● Tractor & trailer are not Agricultural or husbandry implements to exempt – ILR 1998 (1)KAR 386.
● Bank employee not government servant . ILR1995 [3] KAR 2214.
● Lathe used in engineering workshop is not a tools of artisan –HC disagrees with AIR 1972 RAJ 62.- ILR1998(4)KAR 4264.



SECTION;80., NOTICE-

● Even in a claim against public officer govt shall have to be joined as a party after service of notice ILR 1993[2] KAR 401 DB., ILR 1998 (1)KAR S.N.21.
● Notice to government is mandatory even in case for change of date of Birth.,AIR 1947 PC 198., AIR 1960 SC 1309.,AIR 1947 CAL 26&27.,AIR 1938 MAD 583&584.,
● For permenant injunction suit sec 80 need not be complied with.,AIR 1960 PAT 530.,
● 1982[1]KLC8., ILR 1998 KAR 2378., 1971 MYLJ[25-3-71] SNRD 18.,
● Suit against DC as a representative of Govt ,not necessary to make Kar sec ex Brd as party: ILR 1996(1) KAR 1175.
● Karnataka conduct of government litigation rules 1985 – Rule 5(2), Such summons to chief secretary shall have to be received by the Solicitor in the department of law & parliamentary affairs ILR 2001 (4) KAR 4406. DB.
● Served – mere dispatch is not sufficient- ILR 2002 (2) KAR2923.






SECTION 91 :-NUISANCE:-

● ILR 1996 (4) KAR 3356.


SECTION 92;-

● Sale of property of religious & charitable endownments by private negotiation should not be permitted by court unless justified by special reasons.AIR1990 SC 444.,
● ILR 1992 [4] KAR 3023., AIR 1991 SC 121.,
● Notice to dft prior to grant of permission not necessary AIR 1991 SC 221.,
● When it is trust property - Suit for injunction without invoking sec:92- not maintainable-ILR 1993 [2] KAR 1580.
● Suit in representative capacity no necessity to invoke order 1 rule 8. ILR 1996(1)KAR 549.









SECTION 96:-

● Correction of date of birth case, where no prejudice is caused to state, mechanical filing of appeal deprecated:ILR1995(4)KAR3576.
● Overlooking of oral evidence by first appellate court , JDGT liable to set aside for fresh hearing.ILR 1996 (3) KAR 2156.
● O8 R6A & SEC 55 Of Contract Act:- ILR 1997 (2) KAR 1042.





SECTION; 100;- SECOND APPEAL;-

● Substantial question of law -1st appellate court rejecting material evidence on filmsy grounds -High Court can interfere. ILR 1997[3] KAR 2373 [SC]. ILR 1995 [4] KAR 3275.ILR 1996 (3)KAR 2693.ILR1997(4)KAR2632.SC.
● Conclusion about limitation is a finding of fact & not opens for interference in SA. AIR 1998 MP 73.
● The findings of fact arrived by the court below are binding in second appeal. AIR 1998 SC 970. ILR1998 (2) KAR 1550. ILD 2003 (5) MP 316 FB. AIR1963 SC 302. AIR 1959 SC 57.
● Interpretation of contract Involves a substantial question of law-can be examined in second appeal-AIR 1993 DEL187.
● Perverse finding of fact or factual finding based on no evidence second appeal is maintainable-AIR 1993 CAL 144.,AIR1994 ORI 26., ILR 1999[1] KAR 1264., ILR2001[1]KAR 1385[SC].,
● In the absence of substantial question of law no SA;- ILR1996[4]KAR 3590., AIR1990 SC 2212.,
● When there is proper appreciation of evidence of facts no interference in second appeal. ILR 2001 [3] KAR 4295.
● When Law laid down by Higher courts is not considered by lower two courts-HC interferes ILR2001(2)KAR3322.
● INDUCTION of tenant by mortgage in possession is a question of fact ILR 1997 (1) KAR 468.
● Defence against female heir’s Right to partition of dwelling house as pleas not taken in courts below & also in view of plaintiff claiming Right before coming into force of 1956 act,this plea cannot be raised in second appeal.:-ILR 1997 (1) KAR 40.
● Validity of sale deed not substantial question of law:- ILR 1997(1)KAR668.-> Vendor has no title.
● If the evidence of party containing admissions is ignored, HC can iterfere- ILR 1997 (3)KAR 1993.
● Appreciation of evidence by HC IN SECOND APPEAL is un warranted to reverse the finding of fact recorded by the lower 1st appellate court. ILR 1997 (3) KAR 2183. SC.
● Fact about validity & genuineness of re conveyance deed cannot be interfered in second appeal. ILR 1997 (3) KAR 2181.
● Title by Adverse possession, finding of fact –if it is neither perverse nor illegal binding on HC. ILR1997(2)KAR1110.


SECTION 144:-

● Restitution principles-ILR 1996(1) KAR 872.
● Discretion of court- IL1993 KAR2197 Not Followed – ILR 2002 (2) KAR 1779.



SECTION - 148 & 151;-

● Application for extension of time to vacate premises court cannot grant unless both the parties agree;- ILR 1980[2] MYS 1491.
● Suits cannot be clubbed under section151 CPC .AIR1957 PAT 124. AIR 1960 AP 75.
● Partition suit -Interim maintenance-when claimed from out of the joint family income -1975 (2) KLJ 182.
● When there is no specific provision sec 151 can be invoked .1981(2) KLC150.
● SEC151, O9 R6 , O18 R4&7,:-A party to a suit can maintain an application even at the stage of judgment, for the purposes of either filing the material pleading or to adduce material evidence for just & proper decision of the case.ILR 2000 KAR 820, ILR 1993 KAR 161.
● SECTION:151 Not applicable to proceedings before Rent controller. ILR 1995 [4] KAR 3410
● Sec 151;- JDR cannot maintain an application under sec 151 for setting aside court auction sale ILR2001(1)KAR1552.
● When correct provision of law is not mentioned in IA ,cannot be dismissed. ILR 2001(1) KAR 1527.
● SEC148&149;-Non filing of court fee ,papers & documents-ILR1996(1)KAR 425.
● Court has not passed orders on LR application –even at the stage of arguments court has inherent powers to correct its mistake- ILR 1997 (2) KAR 979.




CAVEAT- SECTION- 148A

● Caveat not applicable to land reforms appellate court. ILR 1986 MYS 2890.
● Caveat can be filed without naming the respondent. ILR 1999 [3] KAR 2986.



SECTION 152;Amendment of Decree[AOD];

● Lower court decree merges with Appellate court AIR 1980 KER 76.
● No such AOD can be allowed when rights of third party get involved & are likely to be adversely affected 1981 ALLLJ NOC 122.
● Error can be corrected by high court under S 151&152CPC even though appeal from Decree may have been admitted in the supreme court before the date of correction. AIR 1962 SC 633. ILR 200[4] KAR 3459.
● 1967[2] MYLJ 317, AIR 1974 SC 1880,
● Persons not parties to the amendment of decree are not bound by thereby – amendment takes effect prospectively. ILR 1997 (2) KAR 1561.



GENERAL ;-

● Parties are entitled to copy of documents on which suit is relied upon though not marked ILR 1992 KAR 2700.
● It was Advocates essential obligation to prepare pleadings according to law & also of the court office to scrutinize them for avoiding serious difficulties.ILR 1997[1]KAR 553.
● Plf has to succeed on his own strength of the case & cannot relay on the weakness of the case of defendant AIR 1954 SC 526, AIR 1979 CAL 50.
● Land Revenue patta is not a Title Deed. 1966 [1] KLJ 772.
● Suit to evict tresspassers one of the co owners can file . 1963 MYLJ page31.
● Document in court lost- Reconstruction & admission in evidence-stamp act sec;-35 1963[2]MYLJ 141.
● Court can consider subsequent events if same has material bearing on relief. AIR 1992 SC 700.
● Recalling of order & Re hearing ; Aspect of finality to judgements & orders on merits to be borne in mind. 1995[2] ILR , KAR 970. ILR 2001[1] KAR 1465,[DB].
● Even though recitals of saledeed indicate that it is sale deed. Court should endevour to find out from the facts & circumstances of the case as to wether it is a sale deed. ILR 2001 [3] KAR 4295.
● Quasi Judicial authorities cannot usurp the rights of civil courts .AIR 1968 SC 620. AIR 1987 KANT 79.
● Quasi Judicial authorities cannot DECIDE civil rights; ILR 1998 (3) KAR 2232.
● Possessory rights:-allotment order &possession certificate- no title documents, Admissions in evidence of defendant that plf has been allotted that land-dfts has not setup title to suit schedule property -possessory rights recognized ILR 2001 (2)KAR2027.SC.
● Unregistered sale deed for rs 25/- in 1955, suit for decal-inj:-ILR2001(2)KAR 1917.
● WRIT- dismissed- non prosecution-for not producing correct address of RES, ILR 2001(2)KAR 2131.
● Claims tribunal a civil court- ILR2000 (4)KAR S.N.192.
● Declaratory suit not filed with in limitation period - creates valid title to the opposite party , amendment constituting altogether a new case cannot be done - ILR 2001 (2) KAR 3060.
● Allegation of fraud and misrepresentation in civil litigation: level of proof extremely high rated on par with criminal trial-
ILR 1995 (4) KAR 3389.
● Civil Court not to grant declaration that civil servant must have been promoted-ILR 1986 (1) KAR 37.
● Civil Courts cannot interfere in results of domestic enquiry ILR 1996 (2) KAR 1905.
● When there is a Duty cast on the party by Law, to follow certain procedure & where there is a breach, merely because corrective action is taken at subsequent time, initial breach cannot be totally ignored ILR 2001(3) KAR 3448 DB.
● CIVIL COURTS awarding DAMAGES to plaintiff on the ground that he has spent some amount for litigation not proper
ILR 2001 (3) KAR 3816.
● Filing of fraudulent cases to avoid court orders, the abuse of process of law by suchsuch methods deprecated ILR 2001 (3) KAR 3746 SC.
● Process of criminal court cannot be misused to settle purely civil Dispute :- ILR 1997 (3) KAR 2145.
● IRREGULAR AFFIDAVIT –ILR 1997 (3) KAR 1856.
● Voluminous & irrelevant materials produced by both the parties- Bad- ILR 1997 (1) KAR 111.
● Natural Justice principles in all matters affecting citizens Rights/civil consequences. ILR1997(1)KAR833,973,758.
● A Precedent of 15 years old required to be reconsidered on changing economic conditions & other factors. ILR 1996 (4) KAR 3032. TUMKUR CASE.
● Suit for damages for Defamation: Damages awarded:- ILR 2001 (3) KAR 4142.
● Evidence produced without pleadings cannot be considered. ILR 1998(1) KAR 672.
● Impleading judicial officers as respondents not good – ILR 1998 (1) KAR 530.SC.
● When eviction is obtained by court by filing wrong address of tenant in court- ILR 2002 (1) KAR 847.
● Minor Discrepancies in the case of the parties cannot be blown out of proportion. – ILR 1998 (2) KAR 1957.
● Parties knowing fully well the case of the other had led all evidence- non raising of points needs no interference.- ILR 1998 (2) KAR 1403.
● Suit for direction to any authority to act in accordance with law is not maintainable- ILR 1998 (3) KAR 2612.
● When grant of land is proved by production of saguvalli chit, in a suit for possession of encroached portion, it is wrong to go to the extent of land which was in possession of the Plf in unauthorized coltivation. ILR 1998 (3) KAR 2262.
● ELECTION PETITION- ORDERS Passed by Munsiff- WRIT – Maintainable- ILR 1998 (3) KAR 2276.
● Long pendency of suits in courts does not create any rights in favour of the defendants. –ILR 1998(4) KAR 3580.
● Partition suit – plea of limitation taken –defendant says that suit was filed when finally plf denied to give share- unless defendant proves ouster limitation contention cannot be accepted. ILR 1998 (4) KAR 3161.
● Civil Procedure Code - Suit for declaration - Mode of proof - Whether High Court erred in holding that registered certified copy of sale deed was admissible in evidence as document produced was more than 30 years old - When plaintiff submitted a certified copy of sale deed in evidence and when sale deed taken on record and marked as an exhibit at trial stage, appellant did not raise any objection - Held, it was not open to appellant to object to mode of proof before lower appellate Court... Dayamathi Bai v. K.M. Shaffi (SUPREME COURT OF INDIA) D.D : 4/8/2004
● JUDICIAL DISCIPLINE
Application for refund rejected by the Assessing Authority - Appeal filed by the appellant for refund allowed by the Collector of Central Excise - Despite several representations amount not refunded Held, as no further appeal was filed against the order of the appellate authority, the order has attained finality - It was obligatory on the part of the concerned authorities to comply with the order passed by the Collector in view of the doctrine of judicial discipline Triveni Chemicals Limited v. Union of India and Another (SUPREME COURT OF INDIA) (D.D : 15/12/2006)

● OFFICIALS SHOULD ACT ACCORDING TO BEST JUDGEMET

Senior bureaucrats must act according to their best judgment until he is acting under the direction of his 'official' superior.... Tarlochan Development Sharma v. State of Punjab (SUPREME COURT OF INDIA) D.D : 25/6/2001



RULES OF PRACTICE;-

● Rule 56 CRP- Appendix -C- Finger print & hand writing analysis.
● Rule 138 CRP-The sale of Immoveable property shall ordinarily take place at the spot, subject to the condition that final bid shall be offered before the p.o. at the court house.
● Rule 148 CRP - No sale shall be held on a holiday.
● Rule 99& 100 CRP- Costs & Special Costs.

ORDER 1 & RULES :-

● Not applicable to representative suits ILR1980 KAR 1032., ILR 1987[2] KAR 1242.,
● Does not applicable to the case of defective description of parties AIR 1961 SC 325.,
● Inapplicable to the execution proceedings ILR1995[2]KAR 1815.,
● R/W O22 R 2, LR's steps into the shoes of their predecessors.ILR1999 KAR 117[july]
● Necessary parties are those without whom no effective orders could be passed AIR 1969 PUNJ., AIR 1963 RAJ 198.
● Proper parties are those whose presence is necessary to completely & effectively adjudicate upon & settle all questions in suit .AIR1963MAD 480,AIR 1967RAJ 131&252 ,AIR 1953 CAL 15, AIR 1957MAD 699,AIR 1958 SC 886, AIR 1970 RAJ 167 ,AIR 1970 TRI 80,
● Proper parties are added to avoid needless Multiplicity of suit & to protect his interest. AIR 1956 HYD 192.
● Appellate court can remand to add necessary party AIR1940ALL399, AIR1949LAH248,
● Test to add parties;-[1] adjudication of real controversy [2] to settle all disputes [3] Parties have substantative and direct interest.[4] whether only to vindicate certain other grievances [5]considerable prejudice to other side AIR1968 MAD 287& 142, 1967[2]MYLJ365.,
● No suit against dead person ,no LR application or impleading application lie. AIR 1946 SIND 20 , R/W O 22 R4&9,
● KAR HC Amendment- O 1 R10[6]-Court may on application transfer the position of plf to dft & viceversa.
● One co owner filing an eviction suit against tenant & denying the rights of other co owners therein Suit not competent without impleading other co- owners AIR 1994 KER 164.
● Issue of non joinder of necessary parties cannot be raised for first time in appeal AIR 1994 AP 72.
● Non interested party need not be impleaded in the suit , even though such party was a necessary party AIR 1994 GAU 18.,
● Orders passed does not amount to case decided hence not revisable by High Court ILR2000KAR 50SN.,
● O1 r8:-Requires averments in plaint & affidavit to fully satisfy the requisites. ILR 1997[2]KAR 1383
● O1 r8:-Person who files a suit in representative capacity is required to obtain the permission of of the court under o1r8, -Granting of permission during the pendency of the suit does not change the nature of the suit.ILR 2000 KAR 1511.
● O1 R10:- In ordinate delay in seeking addition of party - although an addition is possible at any stage- inordinate delay dissuade the court from directing addition ILR 2001 [1] KAR 312.[DB].
● O1 R10;- To a suit for specific performance, the defendant sought permission to implead KSFC as the Plf was to discharge the outstanding debt to KSFC ,IA dismissed-ILR 2000 (4) KAR S.N.219.
● Condition precedent to strike out or implead party.ILR1996(1) KAR97.
● O 1 R 3 & 9:- Respondents Head office is not necessarily party to suit – entitled to be decreed against regional office-ILR 1997 (1) KAR 553.
● O1 R8 R/W O7 R4 :-Prior notice is not required before granting permission to sue in representative capacity where public interest is involved. – ILR 1998 (1) KAR 616.
● O1 R8 :- Notice to defendants before withdrawing suit-ILR2002 (2) KAR 2172.






ORDER 2 & RULES ;-

● Objections as to misjoinder ;Waiver of objection if it is not taken before issues are settled .
● Leave of the court should be prayed ,at the time of filing of the suit ,for any other relief that may arise or leftout.AIR 1965 SC 295, AIR 1971 CAL 221, AIR 1961SC 725, AIR 1993 BOM 67,
● O 2 r 2:- sub rule-3:-Scope & conditions for applicability and its applicability to continous or recurring causes of action:-ILR 1997 [4] KAR 3288 [SC].
● O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957.
● O2 R2:- Chits funds Act:- Leave of court:-ILR 2001(1) KAR 1524.
● RULES THAT BAR FRESH SUIT IN RESPECT OF SAME CAUSE OF ACTION;
O 2 R 2 ;- Omission to sue in respect of claim.
O 9 R 2 ;- Decree against plf by default bars fresh suit.
O 22 R 9 ;- Abatement of suit or its dismissal under it.
O 23 R 1 ;- Withdrawal of suit or abandonment of part of claim without leave of court bars fresh suit.
O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957.

ORDER 3 & RULES;-

● Counsel for defendant being permitted to retire dft not entitled to court notice.

● Court has power under O 1 R 10A, to request any pleader to address in any suit of the party who is not represented by any pleader.

● R/W Evidence act sec 118:-It is not necessary that party should examine first-it can be through pa holder -it is valid evidence of plaintiff ILR 2001 (2) KAR 2628. ILR 2001 (4) KAR 4743.But not when GPA is not produced – ILR 2002 (1) KAR 1449.

● Code of Civil Procedure, O. 2 r. 2 - Appellant, borrowed a sum of Rs.1, 10, 000/- from the plaintiff Bank for the purchase of a bus - Secured repayment of that loan by hypothecating the bus and further by equitably mortgaging two items of immovable properties - Suit for enforcement of the equitable mortgage - Why second suit would not be hit by Order 2 Rule 2, C.P.C.?; In view of the finding arrived at vide para 19 of the judgment (Annexure P-2), why defendant No.1 should not have been held to have been discharged from the liability? - Held, suit to enforce the equitable mortgage is hit by O. 2 r. 2 in view of the earlier suit for recovery of the mid term loan, especially in the context of O. 34 r. 14 of the Code - The two causes of action are different, though they might have been parts of the same transaction - There is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it - High Court was correct in granting the Bank a decree in the suit - Appeal dismissed.... S. Nazeer Ahmed v. State Bank of Mysore and Others (SUPREME COURT OF INDIA) D.D 12/1/2007


ORDER 5 & RULES :-

● Suit summons has to be served in person, unless an agent empowered to accept the serviceis there. Service on the office clerk of the defendant is not proper service. ILR 2001 (4) KAR 4406.DB.


ORDER 6 & RULES ,;-

● Pleadings to state material facts & not evidence AIR 1937 LAH 795, AIR1959SC, AIR 1968SC 1083.
● Parties cannot be allowed to approbate & reprobate in their pleadings-AIR1993PH172
● Pleadings are foundations of case -cannot up new and different case-AIR1987SC2179
● Easementary right -special right-should be pleaded clearly & precisely- AIR1993KER91, ILR 1996[3]KAR 2826.
● Pleadings to be construed liberally ILR1996[4]KAR 3595.
● If IA is allowed & if the plf fails to comply the suit has to be dismissed. AIR1975AP 8,AIR1940NAG261,
● Where no legal right accrued & no prejudice to other side amendment allowedILR 1995 [2] KAR 1808.-Easementary Right of way not after prescriptive right lost.
● Guiding principles of amendment-AIR1957SC 363, AIR 1958 J&K62,
● Suit on pronote -amendment to delete same to make it one under original cause of action held not permissible-1982[1]ILR ,MYS 730.,
● Suit for specific performance of contract for sale-plaintiff wants to amend plaint by introducing his averments to readiness & willingness to perform his part of contract .It does not amount to change in cause of action hence allowed,AIR1998SC 1230.,
● Once amendment of pleading is allowed party itself must incorporate the amendment it is not ministerial act of the court AIR1993 BOM 175.,
● Plf through amendment tries to gain relief he had lost through efflux of time amendment cannot be allowed-AIR1993 AP 47.,
● Amendment of W/S not displacing plf case allowed.AIR 1994HP 33.AIR 1993DEHL1,AIR 1993 MP 248, AIR 1993 GAU 50&42,.
● Introducing new case not allowed- ILR1996[3]KAR2462.
● Amended application, which wanted to introduce material particulars & not material facts, is allowed ILR 2001 [4] KAR 4317.
● O6 r17 : & O8 r9:-New & inconsistent pleas cannot be raised under o8r9,such pleas can be raised under o6 r17.ILR 2001 [4] KAR 4580.
● O6 r5:- Party is entitled to better particulars in a proceeding ,if they are necessary to take a particular defense at the time of filing w/s but the party cannot seek particulars which are all matters of evidence:-ILR 2001[3] KAR 4350.
● O6 r17:- Doctrine of finality which attracts itself itself to a different stages of legal proceeding - No Amendment allowed - Because litigation gets dilated & goes on interminably:-ILR 2000 KAR 571.
● O6 R17:- Easementary right of way ;amendment to add relief of declaration - Not in absence of necessary parties & not after prescriptive lost. ILR 1995[2] KAR 1413.
● Specific relief act sec34&limitation act;- no permission to amend plaint after suit for relief barred by limitation during pendency of proceedings in appeal. ILR1996[1]KAR1067[SC].
● Delay of five years, matter known from 16 years-amendment not allowed-ILR 2000 (4) KAR 4550.
● Courts should be liberal in allowing amendments-, which do not change the cause of action, facts, & pleadings may succeed. ILR 1997 (1) KAR 543.
● Amendemnt of plaint for including phut karab – allowed in revision by HC with costs- ILR1998(3)KAR2249.



ORDER 7 & RULES ;-

● Courts can grant relief’s not prayed for in the suit. ILR 1999 [1] KAR 222. AIR 1994 AP 164. AIR 1994 AP 72.
● O7 r11: plaint can be rejected even after framing of issues: ILR1998 [4] KAR 3033[SC].
● O7 r7: Relief to be in the context of plaint allegations & cause of action, not larger than claimed in the suit & not barred by time.ILR 1996[1] KAR 941.
● O7 r11: Non payment of deficit court fee even though time to make good the deficit was granted more than once -plaint rejected -discretion vested in court . ILR 2001[1]KAR 868 [DB].
● O7 r10A: Procedure involving return of plaint for lack of jurisdiction - notice to parties - appeal against return - ILR1996(2)1893.
● Absence of willingness to perform his part of contract in plaint. AIR 1994 SC 1200. AIR 1978 KANT 98.
● Amendment made to plaint before presenting it to senior court when it is returned under O7 R10A- NO objection can be maintained for that. ILR1996 (4) KAR 3628.
● O7 R14 (1): - Suing with a different document, rather than document which was relied upon by plaintiff. ILR 1996(4)
KAR 3226.
● Suit for ejectment is not properly framed- ILR 1997 (4) KAR 3288. SC.
● Petition to Declare marriage as void – ILR 1997 (2) KAR 964.
● Rejection of plaint on the grounds of Limitation. ILR 1997 (2) KAR 1127.
● Eviction cause is a reoccurring one – ILR 1997 (2) KAR 1119.





ORDER 8 & RULES:-

● O 8 r 9 : Non filing of a rejoinder does not amount to admission in W/S . ILR1999 [JULY] 2539.
● O 8 r 6 : Counter claim , cross suit, & set off, AIR 1964 SC 11.
● O 8 r 5 : Pleading of ignorance of plaint averments amounts to admission of the averments- unless contrary is proved by implication AIR 1994 RAJ 133.
● O 8 r 1 : Deliberate delay in filing of the w/s in a suit suit suit for recovery of huge amount by bank -Held court competent to strike off the defence AIR1994PH10.
● O 8 r : Right of addl w/s against amended plaint. AIR1961HP46, AIR1978GUJ94.
AIR1949MAD622, AIR1953MAD492&504, AIR1955AP8, 1973[1]MYLJSN2,.
● O 8 r 6A :-Written statement filed - Issues framed - It would not deprive the defendant of the right to file counter claim.ILR 1999 KAR 4610.
● O8 R6A:- Defendant can file a counter claim any time before the commencement of the recording of evidence.ILR 1999 [1] KAR 898 [DB]. ILR 2002 (1) KAR 265.
● Liability not specifically disputed claim liable to be treated uncontroverted ILR1996[1]KAR435.
● Written statement was not filed till 1999 when the suit was filed in 1996. Plaintiff filed an application under O8 R10 Supreme Court , by appeal , allowed the application ILR2001 KAR 12[SC]
● O8 R6A;- Counter claim can be filed by party where evidence is not completely closed by the parties & before the matter is reserved for the judgement.ILR2001KAR179. case of ILR1999 KAR 898[DB] is interpreted & five Supreme Court cases referred.
● If W/S is not filed , it is neither necessary nor proper appropriate to direct the plf to adduce evidence in support of the facts pleaded by him. The court has to pronounce judgment and decree the suit. When there is no inconsistency in the facts pleaded by him. Court has to pronounce judgment on relevant facts :- ILR2001(1) KAR546 DB. When the suit is not barred by limitation, when defendant does not appear-Shall Decree- ILR 1998 (3) KAR 2653.
● Counter claim:- In a suit for recovery of money ,defendant claimed thathe incurred a loss of Rs 12000/- per mensum due to the intentional delay in releasing the loan amount & hence the suit be dismissed. It is well settled law that in such a cases defendants have to make counter claim by paying court fee, without this trial court should not go into such issue-
besides under sec 55 of contract act it is clear that “ when the promisee cannot claim compensation for delayed performance of the contract when the promisee has accepted performance, unless he gives notice to the promisor of his intention to claim damages.- ILR 1997 (2) KAR 1042.DB.
● Admissions in written statement ignored by lower courts- ILR 1998 (1) KAR 916.
● W/S not filed – it does not deprive defendant to cross examine –ILR 2002 (1) KAR 260.
● W/S not filed – cross examined by defendant –it amounts to contest – he can file appeal- ILR 2002(1) KAR 615.




ORDER 9 & RULES:-

● Consequences of non appearance of parties 1983[1]KLJ236, ILR1986[1]KAR166.
● Tenant evicted meanwhile 1989[2]kar1078.
● Whether suit summons is served or not is a question of fact ILR1997[3]KAR2631.
● Exparte decree set aside,-sufficient cause-1986[1]ILRMYS166,ILR1999[1]KAR932.
● Limitation act Art163[new Art137]: AIR1994NOC148,AIR1958HP9,
● Suit is posted for evidence -Adjourned for want of time on adjourned date suit is dismissed for default,order is not under o17r3 petition lies.ILR1982[1]MYS 439.
● Application to setaside the exparte decree on the ground of nonservice of summons - Held the applicant must show the source of the knowledge about passing of the expartee decree .AIR 1994 PAT 103.
● Restoration application on the ground that non-appearance of counsel due to strike call not allowed on this ground. AIR1993P&H 134.
● Postman testifying services of summons by refusal, no illegality in passing exparte decree AIR 1994 RAJ 9.
● An exparte divorce decree was obtained against wife & the husband expired there after, aggrieved wife can file application for setting aside exparte decree even though husband might have expired prior to moving of such application under o9r13.In such proceedings legal heirs of deceased husband can be brought on record as respondents. AIR1997 SC35.
● O 9 R 4 : 30 days limitation ILR 1995[4] KAR 3122.
● O9 R8&9 :-Claim petition dismissed for default in 1984 were restored in 1993 after condoning delay on the grounds of illetaracy.ILR 2000 [3] KAR S.N.122.
● O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert & holding that process server has forged the signature of the defendants. ILR 2001(1) KAR 1391.(SC).
● Restoration application can be filed even in cases where second petition could be filed – ILR 1997 (2) KAR 911.
● Non appearance of contesting defendant at subsequent stages & failure to cross examine is a exparte Decree. ILR 1997 (3) KAR 1909.
● O9 R 13:- Name of ADV not shown in cause list is sufficient reason for setting aside exparte decree- ILR 2002 (2) KAR 1828 (SC).
● O9 R9 & O33 R1:- Petition dismissed under O33 R1 amounted to dismissal of plaint hence restoration petition maintainable ILR 1997 (2) KAR 911.




ORDER 11 & RULES:-

● PRODUCTION OF DOCUMENTS- stage of disclosure - ILR 1996 (2) KAR 1649 (DB).

ORDER12 RULES:-

● O12 R6:- Opportunity has to be given to explain admissions,inference as to admission can be drawn on the pleadings or in the application ,ILR 2001(2) KAR 1706.(SC).
● Trial court judgment under O 12 R 6 amounts to Decree – Revision did not lie – ILR 1996 (4) KAR 3091.

ORDER 14 & RULES:-

● Relationship-& jurisdictional fact -whether to be tried as prly issue-1981,2mylj395.
● Unless pleaded by party ,cannot be decided by courts as a preliminary issue AIR1993 ALL2.
● Non framing of an important issue held not fatal both parties were aware of the issue & led evidence -AIR 1994GAU64.
● Party permitting the case to be decided without raising a specific plea can be said to be waived the plea. AIR 1993 KAR 257. ILR 1992 KAR 2224.
● Issues involving mixed questions of law & fact cannot be tried as preliminary issues -question as to valuation involves mixed question of fact & law not pure issue of law. ILR 1995 [4] KAR 3420.
● No Revision lies as against the framing or non framing of issues ILR 2000 (4) KAR S.N.232.
● Framing of additional issues & remanded to trial court by first appellate court,-ILR 1996 (4) KAR 3206.
● Sale Deed held invalid without there being any issue- ILR 1998 (1) KAR 719.
● It is mandatory to decide all issues though the decision may depend on one issue alone. ILR 1998 (2) KAR 1412.






ORDER 15 & RULES:-

● Suit for injunction- alleging encroachment & putting up construction – defendant claim is that he is not encroaching & putting any construction. The defence put up by defendant does not amount to admission. Suit has to be dismissed for want of cause of action- ILR 2001 (4) KAR 4386. SC.


ORDER 16 & RULES:-

● One party in a suit citing other party as his witness,when 1965[2]MYLJ788, 1974[1]KLJ70, AIR 1938 PC.
● Warrant not to be issued unless evidence of witness is material 1977[1]MYLJ370. 1970[2]MYLJ348.
● Refusal to allow party to lead further evidence AIR 1958 J&K27.


ORDER 17& RULES:-

● In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment if any granted would certainly be for reasonable grounds, that aspect need not be examined once again if on the date of adjournment sought the party concerned has a reasonable grounds ,the mere fact that in past adjournments were taken is of no effect. If ADJ is sought on filmsy grounds the same would be rejected. ILR2001(1) KAR 1387SC.
● Seeking ADJ on valid grounds-Denial of opportunity to present case:-ILR 2000 (4)KAR 3483(DB).

ORDER 18 & RULES:-

● Hearing of the suit & examination of witness ,1974[1]KLJ249,ILR1988[3]KAR1840.
● Plaintiff 's failure to produce hand writing expert at the time of rebuttal evidence , cannot be allowed to produce at later stage AIR 1993P&H 106.
● Fresh factual evidence - Hearing - If fresh factual evidence is brought in & it is likely to influence the decision , a fresh hearing should be given ILR1999[3]KAR3380.
● Producing documents at late stage &recall of witness is permissible. ILR 1997 (3) KAR 1917.
● O18 R17 & O6 R17 :- PARTITION SUIT – TWO IA’S allowed – ILR 2002 (2) KAR 2280. (SC).


ORDER 19 & RULES:-

● Affidavit to prove substantative right -noILR 1993 KAR 1361.
● Affidavit are not included in definition of evidence Held plf cannot be allowed to fill up lacuna belated by here AIR 1988 SC 1381.
● Defective affidavits entails rejection:- ILR 1998 (1) KAR 730.DB.
● Affidavits in evidence before tribunals- permissible. – ILR 1997 (2) KAR 1007.


ORDER 20 & RULES:-

● Where a suit proceeds exparte or opposite party leads no evidence in rebuttal plaintiff will not be entitled to a decree unless he proves his case by legal evidence. AIR1993MP194
● O20 R18,:-Once final decree was drawn in a partition suit application for enquiry into profits derived by the plaintiff cannot be entertained as there is no such direction in the final decree ILR 2000 KAR 1026
● O20 R18:- After passing of preliminary decree & before passing of final decree ,death of some of the parties -Share of the parties enlarged, no bar for passing second preliminary decree: ILR 1996 (1) KAR 963.
















ORDER 21 & RULES:-

● O21 R97:-Resistance or obstruction to possession of immoveable property DHR may make an application against resistance AIR 1998 SC 1754.
● O21 R97:- A third party in possession of a property claiming independent right as a tenant not party to a decree for possession of immoveable property under execution could resist such decree by seeking adjudication of his objection under o21r97 AIR1998SC1827.
● O21 R97:- 1975[1]MYLJ374, 1970[1] MYLJ419,1971MYLJSNRD380,
● O21 R85:- Deposit of full purchase money with in 15 days-no power to extend time ILR1994[3]KAR1933
● O21 R90:- Limitation Act Art 63,127- Applic- -ation for setting aside of sale in execution proceedings-30-days. Mere irregularity in attachments does not vitiate the sale- AIR 1994 SC 1583. ILR 1996 (4) KAR 3193.
● O21 R90:-Conduct of auction sale at different place that publicized in auction notice resulting in fetching inadequate price ,sale held, vitiated.AIR 1993 P&H 207.
● O21 R90:-Auction sale held a nullity if the proclamation of sale was not widely publicized in terms of the provisions of sec 67[2] and the property auction fetched only 1/3rd of its value as a consequence thereof .AIR 1993 KAR 279, 1993[1] KLJ 519.
● O21 R58:-Investigation of claims ILR1995[2]KAR 1810,
● O21 R58:-Attachment of gratuity and pension not permissible ILR1997[1]KAR 645, ILR 1997[2]KAR738.
● O21 R54:- ILR1999[JULY]119.
● O21 R57:-Attachment before judgment - execution- Dismissal for default - effect - attachment comes to an end if the execution petition is dismissed in default -attachment in execution of the decree shall not supersede the provisions of O 38 R 11,-property attached before judgement not to be reattached in execution of decree 1969[2] MYLJ 465. AIR 1994 NOC 168 [MAD].
● O21 R58:-Claim petition can be filed before confirmation of the sale 1958MYLJ158 AIR 1958 MYS 140, ILR 1957 MYS 351.
● O21 R :- Execution of decree to be executed on principal debtor first AIR 1987 SC 1078.
● O21 R :- Orders not appealable -ILR 1991 [2]KAR 1213,ILR 1994[1]KAR 145,
● O21 R11:-Production of copy of decree is not obligatory if the execution is taken in the same court which passed the decree MYLJ 23-6-1966.
● O21 R :-Before staying execution court should require strong prima-facie case in favour of adjustment of decree. AIR 1993 MP 13[DB].
● O21 R :-New plea cannot be raised for the first time in execution proceedings. AIR1993 ORI 257.
● O21 R :-Execution of decree ought not to be refused unless decree itself is a nullity
● O21 R :-Death of decree holder during pendency of the execution proceedings- His legal representatives can continue the proceedings after obtaining the succession certificate.AIR 1993 KAR 321,ILR 2000 KAR 4411 [DB],ILR1992KAR2807,
● O21 R :- Auction sale set aside,AIR 1994 SC 1292,
● O21 R :-In auction sale this is obligatory on the court that only such portion of property as would satisfy decree is sold & not the entire property AIR1990SC119 1989[3] SCC 409,
● O21 R72:- Mere irregularity does not vitiate it , appellant to show that substantial injury has been caused to him as a result of o21 r72 having passed without notice AIR 1991 SC 770.
● O21 R :-Defective execution application , defect can be cured wiyh the permission of the court No cure sumotto by court AIR1994SC1286, AIR1994BOM 217.
● O21 R :- Whe the decretal amount is deposited by the judgement debtor in the court then the court has jurisdiction to decide the rateable distribution AIR1994AP53.
● O21 R :- Money decree passed against company and its managing director, the decree is not passed against managing director in his individual capacity -He cannot be sent to jail in enforcing of the decree. AIR 1993P&H 215.
● O21 R :-Immunity from attachment there under with regards to residential house -held not available to debtor -unless he establishes connection between the agricultural operations carried on by him & the house sought to be attached U/SEC 60 ,1963[2]MY LJ141.
● O21 R83[3]:-Sale in enforcement of mortgage ILR1995[4]2963, ILR1996[2]2466
● O21 R39[1] :-No arrest warrant can be issued before the decree holder pays into the court subsistence allowance determined by the court. ILR1997[4]KAR3238.
● Starting point for limitation is Date of Decree & not date on which decree is actually drawn & signed AIR 1999 SC 342.
● O21 R21&22:-Declaratory decree which only declares the rights of the DHR qua JDR & does not in terms direct JDR to do or to refrain from doing any particular act is not an executable decree DHR shall have to file a separate suit. ILR 1999 KAR 3896.
● O21 R90 & O43 R1[J].:-Against orders under o21 r90 Revision does not lie -only appeal lies. ILR 2002 (2) KAR 2374.
● O21 R58 &TP ACT sec39:-Person who is bound by law to maintain his wife cannot avoid the liability by transferring his property because the liability to maintain goes along with the property & the transferee becomes liable ILR 1999[2] KAR SN.112.
● O21 R101 & sec 47:- Sons of deceased tenant not residing with him on the date of death not tenants. ILR 1995 [3]KAR 2460
● O21 R35:- Once the DHR is put in possession of the property as provided under R35 the DHR cannot maintain second execution petition alleging dispossession by JDR subsequentely.ILR2001(1)KAR1684. ILR 2000(4)KAR 1684.
● O21 R90:-Auction sale -setting aside-fraud &material irregularity -certificate of sale-right to possession-Resjudicata applies to applications under section 151 CPC for setting aside court auction sale. ILR 2001 (1) KAR 1552.
● O21 R64 & 72(3):-Applicants claimed right & title to property as ancestral property, executing court without deciding the question, whether it is ancestral or not, directed to sale it by auction,- Sale declared null & void ,EX- court directed to restore back possession back to JDR- ILR 2001 (2) KAR 2499.
● O21 R41,58,:-& TP Act Sec 41:- executing court cannot sit upon judgment as to whether charge created in the decree is correct or not particularly when the decree has become final,(JDR wherein sold the property prior to the date of decree ILR 2000(4)KAR3613.
● JDR'S Contention that decree is not executable in view of provisions of IT Act that form 37-I to be filed by seller & buyer in the transaction of above 10 lakhs. ILR 2000 (4)K AR 3641.
● O21 R1-3;- Court cannot recognize any payment made outside court unless certified-ILR 1995(4)KAR3461,2959.
● MINOR irregularity in execution proceedings – no substantial injustice & not liable to set aside. ILR 1996(4) KAR 2906.
● OBJECTIONS as to sale of all properties when one property fetches decree amount :- can be raised by JDR. ILR 1996 (4) KAR 3193 & 3560.
● O21 R84 –ILR 1997 (3) KAR 1940.
● Heavy costs to be awrded when applications filed to delay proceedings – ILR 2001 (4) KAR 4784.
● SEC 146 & O21 R16:- Transferee of property in respect of which Decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907.
● O21 R16:- Transferee of property in respect of which decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907.
● Decree for possession- obstruction by person claiming title to the property by way of objection- executant court can consider all the questions raised by objector and can pass orders which is treated as decree.ILR2002(1)KAR1300SC.
● Auction sales in two courts – ILR 2002 (1) KAR 1273.
● Auction purchaser is proper party in execution proceedings after sale date- ILR 2002 (2) KAR 2689.
● Partition suit – sharers in possession – cannot defend their possession- on the basis of preliminary decree as there is no final decree passed & partition of the property has not taken place by metes & bounds ILR 2002(2) KAR 2749.SC.
● Purchaser of property prior to the date of decree, and who was not party to that suit –can object under section 151 of CPC. – ILR 2002 (2) KAR 2555.
● Withdrawing Execution Petition by reserving right to file fresh execution second time maintainable – ILR 2002 (2) KAR 2699.
● Execution petition after 22 years – ILR 2002 (2) KAR 2699.
● Owner of the property executed an agreement to sell to plaintiff – later sold to tenant in occupation of building – suit for specific performance against both decreed- In execution tenant objected to give actual possession- & claimed compensation for expenditure on repairs. Held – tenancy rights of JDR merged with ownership rights after he purchased. Apart from constructive possession, actual possession is delivered, directed to execute conveyance deed, amount spent is held as “without the consent of owner”. ILR 2002 (2) KAR 2989.
● INJ to restrain executing eviction order erroneous. ILR 1997 (2) KAR 800.
● Bank ( plaintiff ) can participate in auction bid of agricultural land , by permission of court, in view of exemption under section 81 of land reforms act. ILR 1998 (3) KAR 3028.
● Code of Civil Procedure, 1908 - O. 21 r. 97 - Specific Relief Act, 1963 - s. 19(b) - Whether a purchaser of a vacant land under registered sale deed and claiming to be in possession of the land can maintain an application under O.21 r. 97, complaining of his alleged dispossession in execution of the decree of specific performance of contract of sale obtained ex parte by the decree holder against the original owner of the suit property - Held, the provisions of O. 21 rr. 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits - Further held, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the Objectors under O. 21 r. 99, and decided the other issues on merits of their claims arising between the decree holder and the objectors.... Ashan Devi and Another v. Phulwasi Devi and Others (SUPREME COURT OF INDIA) D.D : 19/11/2003

● RESISTANCE TO EXECUTION OF DECREE

When a decree-holder complains of resistance to the execution of a decree for delivery of possession of immovable property, it is incumbent on the execution court to adjudicate upon it while determining only such question, which is relevant to the adjudication of the complaint and has arisen legally between the parties.... N.S.S. NARAYANA SARMA AND OTHERS V. MESSRS GOLDSTONE EXPORTS P. LIMITED AND OTHERS (SUPREME COURT OF INDIA) D.D : 23/11/2001

● COURT AUCTION AND SALE
Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Application of terms and conditions of sale of properties in terms of the provisions of 1992 Act - Grant of sanction to the sale by Special Court - What would be the interpretation of the terms and conditions of sale?; whether having regard to the interim orders passed by this Court, the learned Judge, Special Court could confirm the sale - Held, if there had been a stay in regard to acceptance of the bid, it could not have been sanctioned - It could be sanctioned subject to the final order of this Court - Moreover, when this Court issued direction in regard to confirmation of sale, the matter ought to have been considered afresh - Acceptance of the bid was subject to order of this Court which, by reason of the order of the Special Court or otherwise did not result in a concluded contract - Matter is remitted to Judge, Special Court for consideration of the matter afresh in the light of the observations made - Order accordingly.... Yogesh Mehta v. Custodian Appointed Under The Special Court and Others (SUPREME COURT OF INDIA) (D.D : 4/1/2007)















ORDER 22 & RULES :-

● O22 R9&10A:-Death marriage & insolvency of parties-Factors to be taken into account while condoning delay in bringing LR's on record . ILR1999[4]KAR2767SC
● No abatement of suit when one LR is already on record AIR 1971 SC 742.
● When claim is made against all debts suit will not survive after death of the one of the defendants.ILR 1988 KAR 549.
● LR's include heirs as well as persons who represents the estate even without title 1989[2] SCJ 474.
● O22 R2& O1 R10:-LR's steps into the shoes of their predecessor. They cannot take up any other defence arising out of their individual Rights.ILR1999[3]KAR75&SN117.
● O22 R 4 ;- LR'S have a right to file a W/S ILR 2001 [1] KAR SN5.
● O22 R3& 4;- Non substitution of LR'S of deceased surety will result in abatement of appeal only against the interest of surety ,without affecting the liability of the other parties actually present.ILR 2001 KAR (DB)312. ILR 2001KAR (DB)236 SC.
● O22 R4 & 5 :-Orders passed under does not operate as resjudicata & does not conclusively establish right title to the property or decide such a person as a heir of the deceseased for the purpose of continuing the suit. ILR 2001 (2) KAR 2292.
● All legal heirs to be brought on record-ILR 1995(4) KAR 3389.
● Dispute as to who is the LR- ILR1996(1) KAR 832.. ILR 1996 (3) KAR 2229.
● Existence of Proceedings not known is the reasons shown for delay to file LR application- delay condoned – ILR 2002 (1) KAR 1064.SC.



ORDER 23 & RULES:-

● AIR 1985 KAR 166, ILR 1984[2] KAR 194, AIR 1968 SC 111, 1969[2]KLJ522, 1980[2]KLJ390, ILR 1997[3] KAR 1865.
● Advocate can enter into a compromise ILR 1993[1]KAR584[DB].
● Withdrawl of appeal 1974[2] KLJ 74.
● Rent control case ILR 1994 [3] KAR 2455.
● Validity of consent order depends wholly on legal validity of agreement on which it rests AIR 1992 SC 248.
● Compromise does not create a fresh lease - Registration of the compromise not required.AIR 1993 BOM 34.
● O23 R3 & O43 R1A:-Application for setting aside compromise decree maintainable ,and also appeal is maintainable ILR 2000[1] KAR 86. Mandatory procedure to set aside- ILR 2001 (2) KAR 2633(SC).
● O23 R1[4] [B] :-Land lord withdrew the eviction petition without reserving the liberty to file afresh petition subsequently the landlord filed yet another eviction petition on the same cause of action, H.C reling on 1984[2] KLJ 35 held that landlord without seeking the permission of court for second eviction petition is clearly barred under o21 r 1[4] [b]. ILR 2000 KAR 1651.
● O23 R1&3A:- Compromise can be recalled only if it pleaded that fraud is played in bringing about the compromise between the parties also held that suit to set aside compr- omise decree itself is not maintainable ILR1999[3]KAR3344,ILR1995[4]KAR3389.
● O23 R3:- When one party to the suit sets up a compromise in the suit & the other party does the same, the court has to enquire into the matter & has to record a finding whether there was a compromise or not. ILR 2001(1)KAR 1498.
ILR 2002(1) KAR 468.
● O23 R1(3):- PLF is having unqualified right to withdraw suit & if he seeks permission to file fresh suit, he is liable to pay costs, ILR 2000 (4) KAR 4295.
● COMPROMISE IN DIVORCE CASE :- ILR 2001 (3) KAR 3459.DB.


ORDER 26 & RULES :-

● Report of commissioner is a piece of evidence ILR 1995[2]KAR 1123.
● REPORT &VALUE OF IT:-ILR 1995 [4] KAR 3286&3428, ILR 1999 [2] KAR 2231, ILR1990KAR2451,
● Acceptance or rejection of commissioner report - courts discretion AIR1965CAL199,
● Suit for injunction -question of possession to be decided by court on the basis of evidence not to be delegated to commissioner ILR 1996[2]KAR 1813,1443,
● Appointment of commissioner where possession & measurement admitted ,No appointment to collect evidence,ILR 1995[2]KAR 1813.
● Commissioner not to be appointed before filing of written statement 1977[1] MYLJ SNRD 131, 1970MYLJSNRD377,
● Appointment of commissioner for blood test & genetic finger printing test ,protection under Art20[3] confined to criminal proceedings not civil proceedings. ILR 1995[2] KAR 2642.
● A party or a witness or a witness in a civil proceedings cannot be compelled to give sample of his blood or subject himself to medical examination against his will ILR 2000 KAR 408.
● Commissioner to examine Ailing witness:-ILR 2000(4) KAR 3623.
● Disputed signature on will- Handwritting expert- ILR 2001(2) KAR 2681.
● The acceptance of commissioner's report cannot amount to a decree.ILR 1996(2) KAR 1552.
● Value of court commissioner report in earlier suit –ILR 1997 (3) KAR 1993.


ORDER 33 & RULES ; SUITS BY INDIGNENT PERSONS :-
● Ornaments given at the time of marriage which is meant for wearing during married life are exempt under sec 60(1) (a) in determining capacity to pay court fee.ILR 1996 (2) KAR 1542.
● O33 R2&3:- Petition did not disclose cause of action ILR 2001 (3) KAR 3729.
● Commences from the date of filing application – ILR 1997 (2) KAR 911.
● Application in appeal. ILR 1997 (2) KAR 1291. DB.
● PERSON WHO HAS TAKEN A LOAN WANTS TO FILE A SUIT FOR DAMAGES in forma pauperis. His application is rejected for several reasons. ILR 2001 (4) KAR 4796.
● Is arrears of maintenance taken into account – ILR 1997 (2) KAR 1198.
● Application by a person owning more than three acres of land – ILR 1997 (2) KAR 1535.
● Does not apply to Mortgage Suits – ILR 1998 (2) KAR 1842.SC.


ORDER 34 & RULES:-

● O34 R :-Writ petitions seeking relief of payment of interest on delayed refund could not be maintained.ILR 1999 [1] KAR 1 SC.
● Interest to be awarded at agreed rate - Industry or Commercial ILR1993[2] KAR 1427.
● Interest on bank transaction 1977[2] MYLJ 46,
● Interest from date of suit till realization . Defendant to show his financial position for awarding lesser rate than the RBI rate ILR 1992 [JULY]KAR 2016.
● Increase in rate of interest as per RBI directive , by banks , Increase without notice to debtor violation of Natural Justice -Circulars themselves envisages intimation to debtors & obtaining their consent. ILR 1994 [2] KAR 1129 DB.
● Rate of interest in Bank cases ILR 1995 [3] KAR 2214.
● Section 21A of Banking Regulation Act 1949 does not override O34 R11 of CPC. -ILR 2001(1) KAR 553.
● Courts Discretion to award interest – ILR 1997 (2) KAR 1042.


ORDER 38 & RULES :-

● O38 R6[2]:- ILR 1996[4] KAR 3310.
● Arrest & attachment before judgement-ILR1985[4]KAR3989.
● O38 R5&8,:- Attachment of property before judgement refers only to the property of the defendant & no others property attached is valid one even if it is offered voluntarily ILR 2000 KAR 586.


ORDER 39 & RULES :-SECTION 94:-

● Section 151 CPC R/W O39 R1&2-Defendant can claim for T.I.Order ILR1989[1]KAR962,1975[1]KLJ96,ILR1986[2]KAR130.
● O39 R1&2 Open only to plaintiff ILR 1993[1]KAR161,
● Declaration -Injunction-Date of birth-ILR 1992[1] KAR KAR 554.
● No appeal against ex parte T.I.-ILR 1991[3]KAR 3271.ILR1994[2]KAR1653.ONLY O39 R4-ILR1996(1)KAR961.
● No injunction against un ascertained property ILR 1991[2] KAR 1696. ● ILR 1994[3] KAR 1715.
● Exparte T.I cannot be granted when caveat U/S148A lodged,ILR1997[1]KAR29.
● O39 R1&2, O40 R1,:-In a suit for injunction plaintiff sought T.I & the defendant appointment of receiver -Trial court dismissed the application for the appointment of receiver filed by the defendant, but allowed inj restraining defendants from running the business in the premesis.-High Court refused to appoint receiver ,SUPREME COURT also refused and dissmed appeal .ILR1997[4] KAR 2487 [SC].
● Siddaganga Mutt's Case:- ILR 1989 [2] KAR 1701.
● When trespasser can get T.I. ILR 1999[2] KAR 1451.Even against true owner-cannot be thrown out except under due process of Law,ILR2000,KAR 435. ILR 2002 (1) KAR 174. NO T.I AGAINST TRUE OWNER -BY TRESSPASER-ILR 1986 (1) KAR 1130.
● Right to conservancy ILR 1975 MYS 875, AIR 1975 MYS 99,1975[2]KLJ109.
● INJ against co owners cannot be granted or a co sharer in possession restraining him from using the property in a manner which will change the nature of the property . Great caution should be exercised in such a cases AIR 1962 MAD 260, AIR 1958 AP 431, AIR 1958 PUNJ 318, AIR 1914 CAL 362, AIR194 CAL 436.ILR1999[3]KAR3037. 1972(2) MYLJ 126->unless lawfull possession made out.
● T.I. Grant of circumstances,1962 MYLJ 127, AIR 1952 MYS 76.ILR1952MY354,
● T.I - Subsoil water right ILR 1954 MAD 793.
● O39 R3 :- Police help should be given to party in whose favor INJ order is granted, AIR 1982 AP 394 [OCT]. ILR 2001[1] KAR 462.
● Court cannot direct police to give protection AIR 1971SC742,1976[1]KLJsnrd40,
● O39 R2A:-ILR 1973 MY 391, 1974[2]MYLJ SN 140&78, 1981[1]MYLJ33,ILR 2002 (1) KAR 976.
● Lesse is entitled to be in possession till evicted in due process of law ILR 1985[2] MYS 3700.
● P.I &T.I.,:- Matters to be considered at the time of trial are different for consideration of point at the time of disposal of IA ILR 1986[1] MYS 171.ILR1996[1]KAR753.
● INJ against third party AIR 1949 PAT 496.
● Supreme Court will abstain from passing Interlocutory order U/S 94 if it has effect or tend to be susceptible of an inference of pre judging some important & delicate issue in main matter. AIR 1992 SC 63.
● T.I. restraining authorities from canceling contract cannot be granted. AIR1993ALL78,
● The punishment of civil imprisonment in case of violation or disobedience of the order of Inj of a court is to be awarded " In addition to" & not "in lieu of" or in the alternative of the punishment of attachment of his property. Detachment order passed there under is appealable. AIR 1998RAJ115,AIR 1994 BOM38.
● Belated application for cross examination of the deponent with the object to delay the determination of injunction matter - application rejected.AIR 1994GAU52.
● When a party makes an application for an immediate exparte TI & the court refusal to grant such INJ & instead issues notice to the opposite party , the order of refusal appealable under O43 R1[r]
● Patent infringement-ILR 1995[3]KAR2010.
● Demolition by municipality ILR 1995[3]K AR2615.
● INJ against public authorities -Directions for the courts to follow the directions laid down by Apex Court- ILR 1995[4] KAR 3579.
● QUASI-JUDICIAL authorities cannot usurp the rights of Civil courts, AIR 1968 SC 620. AIR 1987 KAR 79.
● O39 R3A:-Exparte TI to be disposed of within 30 days - If not appeal lies appellate court may taking suitable action against erring Judicial officer including recommendi- -ng to take steps for making adverse entry in his ACR's. Party obtaining exparte TI has to perform his duty under cl[a]&[b] of O39 R3. Disobedient beneficiary of order cannot be heard to complain against any dis obedience alleged against other party. ILR 2001 KAR 1.[SC]
● Suit for Dissolution of partnership,T.Iwas sought for restraining business activity&alie nation of properties.Only T.Inot to alienate the property was given. ILR2000 [4]kar 3624.
● Khartha sold it , other coparceners have no right to interfere with alienee . Alienee entitled to T.I. to protect his possession ILR1996[2]KAR 1883.
● Suppresion of fact of earlier dismissed application ILR1996[2]KAR1618.
● DIRECTION TO POLICE FOR ENFORCEMENT CAN BE GIVEN:- ILR 1996[2]KAR 1271.
● Principles under Specific Relief Act having controlling power when T.I. granted- hardship or injury- ILR1996[2] KAR 1485.
● NO T.I. IF SUIT ITSELF IS NOT MAINTAINABLE-ILR1992[4]KAR1772.
● Previous litigation & finding & new T.I.- 1977 [2] KLJ 489.
● O39R4:- When house building society allotted sites to plf only on the basis of approved plan of layout -No final notification in acquisition proceedings has taken place-society is not having any title. Plf getting T>I> on the basis of plan of layout- not proper-ILR2001(2)KAR3249.
● T.I may be granted even if P.I. is not sought in suit- ILR 1987(3)KAR 2863.● Undertaking given to court - 1974 (1) KLJ S.N.180.
● O 39 is not applicable to probate proceedings 1963(1) MYLJ 549.● Inherent powers -T.I can be issued -1962MYLJ 1037.
● Inj to restrain departmental enquiry- 1979 (1) KLJ 338.
● Attachment before Jdt & grant of T.I -different-1975(1)KLJ S.N.161.
● Primafacie case - Imminent danger -irreparable loss - Balance of convenience -1970 (2) MYLJ 82.
● Seizure of accounts and documents - courts cannot pass such orders -AIR 1961 SC 218.
● Discretionary relief of injunction should not be granted when equally effacious remedy is available.-AIR 1976 SC 2621.
● Possession- & Inj- 1974(2) KLJ 484.● POSSESSION GOES WITH TITLE- 1983(1) KLC 7.
● QUESTION OF TITLE NOT raised -peace full enjoinment for long period -Inj granted -1982(2) KLJ 301,1231.
● Mandatory INJ - cardinal principles -1983 (2) KLJ 377.
● Intending Transferee in possession files Inj suit -section 53A of TP Act -1981(2) KLJ 388.
● Neither plaintiff nor defendant establishing possession- one of them establishing title- presumption of possessionin his favour to be made 1983 (1) KLJ 69.
● INJ against PLf not to proceed with earlier suit - Requires great caution & care - such an order should not be made unless in absolutely necessary - AIR 1962 SC 527. AIR 1976 DEL 60.
● Delay in approaching court not a ground to refuse INJ - 1981(2) KLJ 92.
● Unsustainable T.I - failure in considering standing orders by trial court - Misapplication of law and order illegal. 1981(1) KLJ 350.
● Coclusion of courts should be based on material facts - news paper cutting, opinions expressed by judges reported in news paper- should not influence judicial process.-ILR 1985 (1) KAR 918.
● CONDUCT OF PARTY IS RELEVANT. - 1975(2) KLJ 428. - 1965 (1) MYLJ 370.
● INJ against members of SOCIETY WHICH IS UN REGISTERED cannot be issued- AIR 1981 CAL 393.
● Aggrieved by conditions imposed in granting T.I , only revision lays & not appeal before HC ILR 1996(3) KAR 2352.
● Plf aware of it - and guilty of acquisence -Bal of con not in Plf favour-T.I rejected.ILR 1996(4) KAR 2957.
● Primafacie case not established - ILR 1997 (1) KAR 304.
● Oral agreement - INJ restraining sale could not be granted- AIR 1995 MAD 172.
● No Interim order to stop executing a will – ILR 2001 (3) KAR 3466 DB.
● Grant of exparte order without issuing notice to caveator is illegal. ILR 1997 (1) KAR 29.
● Maintenance of status quo ought to be ordered- ILR 1997 (2) KAR 900.
● INJ vacated when it is given without finding as to possession. – ILR 1997 (2) KAR 999.
● INJ may be given only by making proper provision for its confirmation or modification or hearing the other side otherwise it is arbitrary – ILR 2001 (4) KAR 4634.
● INJ Restraining a person having life interest only under the terms of will from alienating the property – cannot be granted. ILR 1997 (4) KAR 3089.
● O39 R4 & SEC115:- Appellate court should not interfere lightly with the discretion excercised by trial court.- ILR 1998 (1) KAR 419.
● Mandatory Injunction – Encroachment in 3 guntas of land – when large portion of landis encroached mandatory INJ shall have to be issued as the plaintiff will be losing not only his right over site but also a right to put up the building of his choice. ILR 1998 (2) KAR 1976.
● Suit for Declaration & Mandatory INJ :- ILR 1998 (2) KAR 1206.

ORDER 40 & RULES :-

● O40 R3:- Return of plaint for presentation to another court after court appointing receiver - court having jurisdiction over receiver.1968[2] MYLJ 474.
● Receiver can be appointed after decree to safeguard the interest of parties - during pendency of further proceedings. 1963 MYLJ 145.
● AIR 1952 NAG 258, AIR 1954 PUN 122, AIR 1957 NAG 1, AIR 1955 MP 40, 1965[2]MYLJ 548.
● Sub Rule 2 of O40 R1 Clearly indicates that the court & its officer does not possess any right higher than the right a party to a suit possess AIR 1997 SC 173.
● Receiver taking vacant possession of the property can not induct tenant in the property without the permission of the court.AIR 1993 BOM 265.
● Receivership cannot be imposed on the parties by the court. AIR 1994 SC 478.


ORDER 41 & RULES :-SECTION 107:-

● Appeals from original decrees ILR 1992 [2] KAR 3772.
● Remand order can be passed only when the appeal is heard on merits. 1972 MYLJ dt 23-3-72 SNRD.
● Appeal court has no jurisdiction to set aside the decree, which has not been appealed against. 1972 MYLJ dt 23-3-72 SNRD 112.
● Sufficient evidence on record enabling the appellate court to come to the just & satisfactory conclusion, No ground exists for making order of remand AIR1968MY266, 1968[1]MYLJ288,ILR 1999[3]KAR[SC] 2897.
● O41 R5 :- Stay of INJ order, AIR 1937 ALL 528, ● Cross Objections- ILR 1995[4] KAR 2732.
● Remand and re opening - ILR 1995 [4] KAR 2072&3100. ● O41 R11:- ILR 1997[2]KAR1291.
● O41 R23:-Remand-powers of High court should not ordinarily be exercised merely be- -cause in its view reasoning of lower court in some aspects was wrong AIR1999SC1125
● O41 R3A Sec 5 of LMT ACT :- In case of time barred appeals - condonation of delay applications- Court can & has power to give an opportunity to the party concerned to remove the defect by filing an application for condonation of delay ILR1999KAR3762.
● No court can scuttle or foreclosure a statutory remedy of appeal or revision by directing a party to give an undertaking regarding compliance of its orders. ILR 1999 [1] KAR 623 [SC].
● o41 r27:- Question of production of evidence in appellate court does not arise at all, as the respondent had not filed the written statement. ILR 2000 [4] KAR 5033.
● O41 R30;- Appeal dismissed without giving reasons and considering all points -not proper.ILR2001KAR235(SC).
● O41 R33:- Rule is to award contractual rate of interest, reduction in INT only for good reasons. ILR2001KAR (DB)312.
● O41 R1:- Jurisdiction can be excercised in Review of Judgments only if there is error apparent on the face of record
ILR 2001(1) KAR 679, But not too late :- ILR 1997 (4) KAR 3268 (SC).
● Error or defects not affecting merits of case, decree not to be reversed, modified or case to be remanded-ILR1996 (1)KAR263.
● STAY;- 1977(2)MYLJ 53. 1981[2] MYLJ 353.
● Limitation for filing cross objection by respondents – ILR 1996 (3) KAR 2257.DB.
● Under the code there could be no appeal against a finding yet "on grounds of justice" an appeal may lie against a finding provided it would operate as resjudicata so as to preclude party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. ILR 1996(2) KAR 1445.
● If respondent intends to challenge part of the decree , based on certain findings, cross objections has to be filed but it is open to respondent to support decree by showing that a particular finding should not have been recorded can do so by not filing objections: ILR 1996 (2) KAR 1321.
● First appeal & second appeal-matters to be dealt with- ILR 2001 (3) KAR 3385 SC.
● At admission stage only appellant side has to be heard. ILR 1997 (2) KAR 1291. DB.
● O41 R27:- Suit for permanent INJ Decreed exparte. In first appeal, the defendant sought to produce two documents to show that possession was taken over from the plaintiff long back. Supreme Court allowed the application for additional Evidence ILR 1997 (4) KAR 3119.SC. ILR 1998 (1) KAR 331.SC. ILR 1998 (2) KAR 1206.
● Suit itself dismissed instead of appeal in appeallate court – ILR 1998 (1) KAR 916.
● Account books marked, relevant entries were not marked,- application at appeal stage to produce evidence- application not allowed.- ILR 2002 (1) KAR 1471.
● O41 R27:- Insurance company filed IA to produce policy in appeal- Rejected. ILR 1998 (3) KAR 2073.




ORDER 43 & RULES :-

● Appeal lies as against the order of dismissal of application for restoration of a dismissed suit & not revision. ILR 2000 [1] KAR SN4.
● Exparte injuction order can be challenged by filing appeal or by approaching the same court for vaction ILR2001 KAR 1[SC].
● Order either approving or directing alteration in the draft of the document or the transfer deed are appealable and the party aggrieved can file an appeal from that order. If no appeal is filed such order becomes final.ILR 1996 (2) KAR 1552.
● Suit dismissed for non payment of addl court fee- appeal maintainable –ILR 1996(4)KAR 3403.


ORDER 47 & RULES:-SECTION 115:-

● Review powers of HRC Court- No powers - ILR 1992 [2] KAR 1706,ILR 1987 [1] KAR 715, ILR 1993 [2] KAR 1120.
● AIR1966SC153,AIR1968SC439, AIR1963SC698, AIR1964SC1336,1341. AIR1965SC553&1585, AIR1968RAJ237, AIR1968DEL181/188,AIR1970PUN451,
● When subordinate court decides the matter before it ignoring the ruling of High Courts, which is binding on it it acts in excess of its jurisdiction ,High Court can interfere 1965[2] MYLJ 598. ● AIR 1953 SC23, 1964[2] MYLJ SC 36, AIR 1966 SC 153&439,
● Ground of total misreading of admitted material or record -Application should be supported with an affidavit AIR 1994 CAL 165.
● Passed by second appellate court - cannot be reviewed on the ground that discovery of new evidence on question of fact- AIR 1993 DEL85. ILR 1995[4]KAR 3420.
● SEC 115:- & O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert & holding that process server has forged the signature of the defendants.High court cannot interfere with the finding as it amounts to weighing the evidence which is impermissible under section 115. ILR 2001(1) KAR 1391.(SC).
● Existence of alternative remedy not bar in giving relief in review petition, ILR 1995 (4) KAR 3389.
● Erroneous decision on questions of law or fact affecting jurisdiction open to revision- ILR 1996(1)KAR 753.
● SEC 115;-Revision lies against 'case decided'- affidavit of one party sought to be produced in evidence its rejection is ' case decided' ILR 1996(1) KAR 1957&1808.
● Question of suppression of material fact is a mixed question of fact & law ,Revisional court is not the proper forum for agitating the point - AIR 1995 CAL 113.
● Where it is shown that orders are obtained by playing fraud , the court gets jurisdiction to go beyond the limits permissible under law to review a judgment – ILR 2001 (3) KAR 3532.
● When court exercise its discretion by application of its mind to the peculiar facts & nature of dispute- the same cannot be interfered in revision. ILR 2001 (3) KAR 3604.
● REVIEW can be if it is shown that new material is discovered or where there is an error apparent on the face of the record. ILR 1997 (3) KAR 1824.[HINDU SUCCESSION ACT]
● ILR 1997 (2) KAR 808.
● Claims tribunal is not civil court for section 115 –ILR 1998 (4) KAR 3733.












CASE LAW ON MUZRAI INSTITUTIONS & TRUSTS

MODE OF MANAGING A RELIGIOUS OR CHARITABLE INSTITUTION

In Baba Charan Dass Udhasi v Mahant Basant Das Babaji Chela Babn Laxmandas Udasi Sadhu, AIR 2000 SC 2610 , it was held that the mode of managing a religious or charitable institution should be ascertained from the document or instrument by which it had been established.


ABOLITION OF HEREDITARY RIGHTS

The abolition of hereditary trustees and hereditary rights of archakas and office holders, had been upheld by the Apex Court in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023 : (1996)2 SCC 498; And also in . Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765


RIGHTS AND DUTIES OF MAHANT

In Lakshamana Yatendrulu and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1414 : (1996)8 SCC 705, the status, rights and duties of Mahant or Mathadhipathi were discussed. See also Kakinada Annadana Samajam v Commissioner of Hindu Religious and Charitable Endowments, Hyderabad and Others, (1970)3 SCC 359; & Sudhindra Thirtha Swamiar and Others v The Commissioner for Hindu Religious and Charitable Endowments, Mysore and Another, AIR 1963 SC 966. In Shrimad Sudhindra Thirtha Swamy v Sri Kasi Math Samsthan, Tirumala, 2001(6) ALT 329, it was observed at 331: "Math in fact has been the most important institution relating to Hindu religious system. The word "matha" is defined as of an ascetic or student, a monastic school or college and "Matadhipathi" is defined as the head of such institution."



SCHEME

In T. Lakshmikumara Thathachariar v The Commissioner, Hindu Religious and Charitable Endowments and Others, AIR 1998 SC 3252 : (1998)6 SCC 643 : 1998(7) Supreme 135, the power of modification or cancellation of Scheme under Tamil Nadu Act was dealt with.



PRIVATE TEMPLE BY PASSAGE OF TIME MAY BECOME PUBLIC TEMPLE

In Teki Venkata Ratnam and Others v Deputy Commissioner, Endowment and Others, AIR 2001 SC 2436 : (2001)7 SCC 106, it was held that a private temple may become public temple in due course of time.


APPOINTMENT OF PUJARI

In Adhithyan v Travancore Devaswom Board, 2002 AIR SCW 4146, it was held that a person well versed, properly trained and qualified to perform pooja in the manner appropriate to worship a particular deity, can be appointed as pujari and need not be a Brahman by birth or pedigree.



ELEPHANT IN TEMPLE AND DISPUTE BETWEEN TWO SECTS


In R. Jhathadesika Thathachariar v K.V. Alagai Manavala, 1995 Supp. (4) SCC 563, where the dispute arose in temple of Sri Devarajaswami relating to painting of forehead of temple elephant with distinctive mark of Jhengalai Sect or Vadagalai Sect and the elephant died during the pendency of the matter the Apex Court permitted both the sects to provide one elephant painted with their respective distinctive marks to lead the procession, elephant of Jengalai Sect to be followed by elephant of Vadagalai Sect.



ARCHAKATVAM


IN HIS HOLINESS SRIMAD PERARULALA ETHIRAJA RAMANUJA JEEYAR SWAMI V STATE OF TAMIL NADU, AIR 1972 SC 1586, THE APEX COURT OBSERVED THAT THE APPOINTMENT OF ARCHAKA IS A SECULAR ACT. IN ANNAIAH TANTRI V AMMAKKA, ILR 41 MAD. 886, THE INCIDENTS OF ARCHAKATVAM SERVICE HAD BEEN DEALT WITH IN DETAIL. FOR ARCHAKAS AND THEIR RIGHTS, SEE NAR HARI SHASTRI AND OTHERS V SHRI BADRINATH TEMPLE COMMITTEE, AIR 1952 SC 245; JAGANNATH V SATYA NARAN, AIR 1973 RAJ. 13; GURUVAYUR DEVASWOM TRUSTEES, T.M. KRISHNAN NAMBUDIRIPAD AND ANOTHER V KUTTIKRISHNA MENON, AIR 1956 MAD. 3H8; RARNANATHA GURUKKUL V ARUNACHALAM CHT'TTIAR, ILR 1940 MAD. 825; VEERBASAVARADHYA AND OTHERS V DEVOTEES OF LINGADAGUDI MUTT AND OTHERS, AIR 1973 MYS. 280; SRI VEDAGIRI LAKSHMI NARASIMHA SWAMI TEMPLE V INDURU PAITABHIRAMI REDDI, AIR 1967 SC 781; SECRETARY OF STATE V MASK AND COMPANY, AIR 1940 PC 105; SESHADRI AIYANGAR V RANGA BHATTAR, (1912) ILR 35 MAD. 631; JAGANNATHA ACHARIAR V SEENU BHATTACHARIAR, ILR 42 MAD. 618; BADRINATH V PUNAM, AIR 1973 J&K 7; SESHANATH V PREM CLUB, AIR 1972 ALL. 324; VENKATADRI V SESHACHARYULU A. PUJARI, 1947(1) MLJ 287. A PUJARI NEED NOT BE BRAHMAN BY BIRTH OR PEDIGREE. — ADITHYAN V TRAVANCARE DEVASWOM BOARD, 2002 AIR SCW 4146.



HERIDITARY OFFICE HOLDER AND HERIDITARY TRUSTEE

See Angurbala Muttick v Debabrata Mullick, 1951 SCR 1125; Kalipada Chakraborti and Another v Smt. Palani Bala Devi and Others, AIR 1953 SC 125; M. Ranwppa v Sangappa and Others, AIR 1958 SC 937; Bapatla Venkata Subba Rao v Sikharam Ramakrishna Rao and Another, AIR 1958 AP 322; Ramanatham Chetty v Murugappa Chetty, 24 Mad. 283, Vfnkataraman v LA. Thangappa Gounder, AIR 1972 Mad. 119. Abolition of heriditary rights of archakas etc., and heriditary trustees under Andhra Pradesh Act 30 of 1987 had been dealt with in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023; A.S. Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 : (1996)9 SCC



HINDU AND HINDUISM

K. Eranna and Others v Commissioner for Hindu Religious and Charitable endowments. Bangalore and Others, AIR 1970 Mys. 191 : 1970(1) Mys. L.J. 170; lemmal Nadar (dead) by LRs v Ponnuswami, (1970)1 SCC 605; AIR 1963 SC 1638; Nagu Reddiar and Others v Banu Redder and Others, (1978)2 SCC 591; Ramalinga Chetty v Shiva Chidambaram, ILR 42 Mad. 440.



TEMPLE

The temple includes a Mandira, Samadhi, Brindavana, Gaddige, Shrine, Sub-Shrine, Utsava Mantapa, Tank or other necessary appurtenances, structures and land, However it does not include a temple which is an inseparable integral part of the composite institution consisting of institutions other than a temple. For temple see Commissioner of Income-tax, Calcutta v Smt. Kokila Devi and Others, (1970)2 SCC 10; Pt. Ram Chandra Shukla v Shree Mahadeoji Mahabirji and Hazrat All Kanpur and Others, (1969)3 SCC 700; Sarat Chandra Bhattacharjee v Rabindra Nath Ghosh and Others, AIR 1957 Cal. 11; Gurpur Guni Venkataraya Narasimha Prabhu and Others v B.C. Achia, Assistant Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Another, AIR 1977 SC 1192 : ARC Association v CIT, (1971)3 SCC 475; Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255. A private temple may become public temple by passage of time.— Teki Venkataratnam and Others v Deputy Commissioner, Endowments and Others, AIR 2001 SC 2436 : A place in order to be a temple must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. — Bala Shankar Maha Shankar Bhattjee and Others v Charity Commissioner, Gujarat State, AIR 1995 SC 167.





USAGE IN DEROGATION OF LAW


In N. Adithyan v The Travancore Deuaswom Board, 2002 AIR SCW 4146, it was held that any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament and no usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the Country.


VAISHNAVITES


In Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu v Prathivathi Bhayankaram Venkatacharlu and Others, AIR 1947 PC 53, it was held that in Vaishnavite temples of Tirumalai and Tirupathi, the Iyyengar is entitled to conduct the worship exclusively in Jengalai order. See Srinivasa Thattachariar v Srinivasa Aiyangar, (99)9 MLJ 355 and M. Appadomi Ayyangar and Others v P.B. Annangarachariar and Others, AIR 1939 Mad. 102.
Shaivites exclusive right to conduct worship and manage Kashi Viswanatha temple was repelled by Apex Court in Sri Adi Vishweshwara of Kashi Viswanatha temple. — Varnasi v Stale of Uttar Pradesh, (1997)4 SCC 606.


RELIGIOUS PRACTICE

A.S. Narayana Deekshithulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 :
Seshammal v State of Tamil Nadu, (1972)3 SCR 815; Tilkayat Shri Govindlalji Maharaj v State of Rajasthan and Others, AIR 1963 SC 1638 : Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255 : Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 : Sri Adi Visheshwara of Kashi Vishwanath Temple v State of Uttar Pradesh, (1997)4 SCC 606; Bhuninath v State of Jammu and Kashmir, (1997)2 SCC 745, Mannalal Khetan v Kedar Nath Khetan and Others AIR 1977 SC 536.



KARNATAKA ACT OF 1997

The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 came into force from 1-5-2003 and Section 78 thereof is the repeal and savings clause. The said section provides that Section 6 of Karnataka General Clauses Act, 1899 (Karnataka Act IE of 1899) shall be applicable in respect of the repeal of the said enactment and Sections 8 and 24 of the said Act shall be applicable as if the said enactments are repealed and re-enacted by this Act. .... Section 24 of the Karnataka General Clauses Act is very clear that where an order is issued under the enactments repealed and re-enacted, it shall continue in force if the same is not inconsistent with the provisions re-enacted. or superseded by any order issued under the provisions so re-enacted. .... Inconsistency or repugnancy is shown in the earlier order of the Commissioner dated 25-8-2001, appointing 12 persons for a period of 3 years as Trustees of Sri Someswara Swamy Temple, Utsoor, Bangalore. The right which has already accrued and the existing right cannot be taken away even though they have not worked. The earlier order cannot be set aside without affording any opportunity to parties to be affected. . . . The order dated 30-4-2002 has been passed on the basis of note of the Government and for no reason there should be reasons available on the record. No opportunity was given to the appellants before cancelling the order and the order dated 25-8-2001 was cancelled based on some alleged irregularities. — V, Ramakrishna and Another v State of Karnataka and Others, 2003(5) Kar. L.J. 417 (DB).



BOMBAY PUBLIC TRUSTS ACT


TRUSTEES

Definition of expression 'person having interest' in the section wide enough to include not merely the beneficiaries of the temple, math, wakf etc., but also the trustees. — Shree Gollaleswar Dev v Gangaiuwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).


POWER OF COURT TO EXERCISE JURISDICTION TO APPOINT TRUSTEES.

The Court can exercise the power when there is a shortfall or the minimum number is reduced to fill up such vacancy so as to bring up the number of the minimum. — Shesh Venkataraman jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044


PERSON ENTITLED TO ATTEND WORSHIP

A Hindu who resides 50 miles away from the temple and occasionally goes to the temple and offers worship is not a person having interest in the temple within Section 50 of the Bombay Public Trusts Act. Section 2(10) of the Act gives extended meaning to the word 'interest' and covers a field much wider than that covered by Section 92, CPC. Even under Section 2(10) of the Bombay Act, the expression "entitled to attend worship or service" indicates that the person must have a title to attend worship or service and connotes something more than a mere right of worship. Having regard to the object of the section as well as the scheme in the Act, a person interested must have a real interest in the temple in question and he must be in some manner connected with the temple. Pending appeal against a suit filed under Section 50 of the Bombay Public Trusts Act where the plaintiffs are held to have no interest in the temple within the meaning of that section, the proceedings cannot be validated by adding the Charity Commissioner as a co-plaintiff. M. Vasudeva Rao v Subraya Parameshwar Hebbar, ILR 1967 Mys. 453 : 1967(1) Mys. LJ. 225.



WORSHIP OF FAMILY IDOL AND FEEDING AS PART THEREOF — IF PUBLIC TRUST


A provision in a partition decree provided that the income from the property set apart for religious purposes should be utilised for taking the family God annually to the temple at Srisaila on the occasion of the annual Abhishekam ceremony in that temple and that after the family God was brought back to the family house, there should be a feeding of the Jangamas who belonged to a holy order. Held, that the main and dominant purpose of the provision was the ritual connected with the worship of the family idol and did not involve any public trust. The provision for feeding was ancillary to the main object of the trust and did not create any independent trust or charity. A religious or charitable endowment becomes a public trust only if it is for a public purpose. — Rudrappa Channamallappa Patil v Kadeppa Dareppa, AIR 1967 Mys. 239.


TEMPLE - TRUST - PRIVATE OR PUBLIC

The real test to be applied in deciding whether a temple is a public trust or not is as to whether members of the public or a section thereof are entitled to enter the temple and offer worship therein as a matter of right or whether they do so as a matter of express or implied leave or licence of the owners of the temple, The circumstance that offerings are received from the public who are interested in the temple is not decisive. Where the oral evidence was to the effect that this temple was located on a site belonging to a private person, that only certain five specified families were managing the temple and meeting the expenses thereof, that neither the public nor even the (Gowd. Saraswath) community (which forms a section of the public) could worship at the temple as of right and that only the members of the five specified families had the right to worship in the temple, Held, the temple was a private one. The circumstances that the temple committee constituted under the Religious Endowments Act, 1863 had been appointing trustees and moktesars of the temple, that the temple had been receiving a tasdik and that the devotees of the temple are now spread over 300 families which were branches of the original five families who established the temple, were not sufficient to rebut the evidence that the temple was a private one. — State of Mysore v Madhhv Vitobha, 1975(1) Kar. L.J. Jr. 29 Sh. N. 107.

The Civil Court is not competent to decide the questions whether or not a trust exists and such trust is a public trust or particular property is a property of public trust. As one of the issues involved in the suit is as to whether the chariot in question is the property of the public trust, the question can be decided only by the Deputy or Assistant Charity Commissioner. There is no provision contained in the Act, enabling Civil Court to refer such an issue to the Deputy or Assistant Charity Commissioner. Therefore, it is not competent to refer such question to the Commissioner under the Act. The proper course to adopt in such a case is to stay the suit to enable the plaintiff or defendants, as the case may be to make an appropriate application before the Deputy or Assistant Charity Commissioner to decide as to whether the property which is claimed to be the property of public trust in the suit is or is not, the public trust property and produce the decision of the Deputy or Assistant Charity Commissioner in the suit, thereafter proceed with the suit in accordance with law. — Katikadeui ofShirasangi and Others v S.S. Maharaj and Others, 1985(2) Kar. L.J. 327 : ILR 1985 Kar. 2647 : AIR 1986 Kant. 186.


POWER TO SUPERINTEND THE 'ADMINISTRATION'

The power to superintend the 'Administration' is wide enough to include within it the power to decide whether or not there should be a fee for the performance of sevas in a temple and if so, what should be the fee structure. The argument that the power to fix the fee for sevas vests only in the trustees and that the Charity Commissioner does not enjoy any superintendence or supervision over the exercise of any such power, does not get support from any provision of the Act nor is the same 'patible with the scheme, underlying the same. The Charity Commissioner while discharging his duties and functions under the Act, is entitled to maintain a vigil over the activities of the trustees and take remedial steps wherever the same are found necessary. Inasmuch as the Charity Commissioner in the instant case, modified his earlier order prescribing the seva rates on account of the widespread protest against the hike in the same, he cannot be said to have transgressed the limits of his jurisdiction so as to warrant interference from this Court. . . . From the order it is apparent that not only were representations received from various quarters against the increase in the rates for the performance of sevas, but even the Government had asked the Charity Commissioner to look into the question of reducing the same. The very basis for the issue of the impugned order thus was a general complaint against the new rates prescribed. It is therefore apparent that the reduction was induced by no consideration except that the rates prescribed were excessive. — Shri Saunsthan Mahabaleshwar Deu (by Managing Trustee), Gokarn, Uttara Kannada District v The Charity Commissioner, Belgaum Division, Belgaum and Another, ILR 1997 Kar. 1874.





APPOINTMENT OF SUCCESSOR TO HEAD OF MATH


When it is a matter of appointing a successor to the headship of a math, it is a matter of complexity involving religious practices and principles governing succession to a matadhipathi and the same cannot be acquired with the ordinary mode of succession to an office of trustee as contemplated under Section 19 of Bombay Public Trusts Act, 1950 and the same falls outside its purview. The Act does not provide for a proper procedure for determination of such disputes. Hence the authorities under the Act have no jurisdiction to decide the dispute as to succession of the headship of a math and the mode of succession thereof, ILR 1970 Kar. 1861 (FB), Where after the death of the Swamiji, there has been no successor properly and legally installed, there is no question of registering the name of the successor under Section 22 of the Act. — Shivamurthayya Guru Appaya Swamy v Madiwalappa, 1982(1) Kar. L.J. Sh. N. 41. Dispute as to succession to headship of math — Jurisdiction. The Bombay Public Trusts Act, 1950 was not intended to interfere with the religious matters of public trusts. Its primary purpose is only to ensure proper administration of trust properties. It is not a self-contained code covering all questions pertaining to public trusts. The succession to the office of mahant of a math is a religious matter and is regulated by the practices and customs of the particular math. The matter of such complexity involving religious practices and principles governing succession to a matadhipathi cannot be equated to an ordinary question of mode of succession to the office of a trustee as contemplated under Section 19 of the Act and it falls outside the scope of Section 19. Hence, the authorities under the Act have no jurisdiction to decide a dispute as to succession to the headship of a math and the mode thereof. — Shri Gurugurupadayya Charantayya Adavimath v Chikkayya, 1979(2) Kar. L.J. 53 (FB) : AIR 1979 Kant. 202.


CIVIL COURT JURISDICTION

Where in a suit for declaration of title if one of the defendants raised the contention that the properties were wakf properties, the Civil Court has no jurisdiction to decide that question. — Junnadsaheb Dadesaheb Patiat v Murufsaheb, 1964(1) Mys. L.J. 563.


MANAGEMENT OF TRUST

Management of trust — Changes in — Duty of managers to report changes to Charity Commissioner — Charity Commissioner receiving report of change to make necessary entries in his register after enquiry — Legality or correctness of entries in register can be questioned in appropriate Civil Court by person disputing same — Entries made in register and order passed by Charity Commissioner are valid and lawful and cannot be set aside by Court unless the order is proved to be wrong. Channamalikarjuna Shivacharya Guru Pawadayya Swami Hiremath, Nagathan Taluk, Bijapur District and Others u R.S. Patil and Others, 1996(1) Kar.L.J. 352 (DB).

Defendant 1 was manager of a school. The school was run by the Ideal Education Society which is a registered trust under the Act. Respondents 1 to 3 who were the teaching staff in the said school instituted a suit praying that D-l could not act as manager of the school as he had already been removed from that post on 2-2-1971. They had also prayed for consequential relief of injunction to restrain defendant 1 from acting as manager of the said school. The relief claimed by the plaintiffs being a limited relief as to the right of defendant 1 to continue as manager of the School, which is not a public trust registered under the Act, the Civil Court has power to determine the said question. That is not a question which is required to be decided by the authorities constituted under the Act. — R.D. Pai v Shamsundar Madhavrao, 1975(2) Kar. L.J. Jr. 49 Sh. N. 97.

Section 50 is not an exhaustive provision regulating all suits which may be brought for recovery of property belonging to a public trust and has no higher status than a mere enabling section authorising the Charity Commissioner or two or more persons having an interest in the trust to institute a suit for recovery of property belonging to a public trust. What has been recognised during a long period of time is that a suit for recovery of property belonging to an idol could be brought either by the idol represented by the manager or by the manager himself. There is nothing in Section 50 of the Bombay Public Trusts Act which causes a divestiture of that right, A person who is charged with the administration of a trust such as the manager of a temple is not a person having only 'an interest in the trust'. That expression refers to person who would be prejudiced in some way though not directly if the trust is not administered. A trustee in whom the property vests, although he is subject to obligations annexed to such ownership, is the owner of the property, although to such ownership is annexed an obligation. But that right which he has in the trust property is superior to a mere interest such as that of a worshipper, That would also be the position in the case of the manager of a temple who in a sense is also a trustee although the property belonging to the temple does not vest with him. The ‘person having an interest’ in a public trust is therefore one whose interest is inferior to that of a trustee or manager and it is by reason of the existence of that inferior and smaller interest that Section 50 of the Act like Section 92, CPC authorises the institution of a suit and regulates it in the manner specified in it. But that section does not govern the institution of a suit by a person possessing a larger and a higher interest which is not regulated by it. The expression 'in any case' in Section 50 does not mean that all suits, which may be instituted on behalf of a public trust, should be instituted only by the adoption of the procedure prescribed by Section 50. That section enumerates the suits to which it is applicable and insofar as it concerns itself with the institution of a suit for recovery of property belonging to a public trust, it operates only in respect of a suit 'where a direction is required to recover the possession of such property belonging to the trust'. The meaning of the expression 'direction' used in clause (ii) is no more than that the consent of the Charity Commissioner is necessary only in cases in which the suit is instituted by someone who has only an interest in the trust which falls short of an interest possessed by the idol or the manager or the trustees, as case may be. That is the only way in which it would be possible to give some meaning to the word 'direction' occurring in clause (ii). — Manager Ganapati Ram Naik v Kumtti Shri Venkatranuin Dev, 1964(1) Mys. L.J. 172.




TRUST PROPERTY — SALE OF

Trust property — sale of — Charity Commissioner's powers to impose conditions for — Powers include in itself power to fix minimum price based on market value — Open to Trustee or prospective purchaser to demonstrate that minimum price fixed is unreasonable or arbitrary — Commissioner's order fixing minimum price on basis of location of property and its market value and imposing condition that sale to be effected within six months from date of order — Proper and in interest of trust. It follows that in case the requisite sale deed was not registered within the period granted, the order would lapse for it can hardly be said that the sale consideration once fixed by the Charity Commissioner would hold good for all times to come. — Mahammad Hussain Dabahayatsab Mulla (since deceased) by L.Rs and Others v The. Charity Commissioner, Belgaum and Another, 1996(6) Kar. L.J. 579 A.



FALL SHORT OF THE MINIMUM NUMBER OF TRUSTEES

In the absence of a trust deed or a scheme or a decree of a Court for the administration of the trust, the parties have to establish the required minimum to administer the trust. When a trustee incurs a disqualification, falling within any of the clauses of Section 47(l)((a) to (h) of the Act, automatically there will be a vacancy and if, as a consequence, the existing number of trustees fall short of the minimum number of trustees, then under Section 47(3) of the Act, the Court has the power to fill up the vacancy so as to bring the number to the required minimum. — Shesh Venkataraman Jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044.

The minimum number of trustees spoken of in Section 47(2) of the Act is the minimum required by the instrument, scheme, or order or decree or usage or custom of the trust for the administration of the trust. Unless the existing number is less than the minimum required, the District Judge will have no jurisdiction to appoint a new trustee. — Subbaraya Namyana Bhat v Govinda Ganapathi and Another, 1983(2) Kar. L.J. 521.










OFFICE OF MATADHIPATHI

Scope and requirement — Necessity to frame scheme — Administration suit — Whether necessary to make Math a party and whether there could be scheme for Math for which there is no Matadhipathi — Whether Dichotomy of secular and spiritual functions permissible in office of Matadhipathi, Explained. — Ratnakar, B. Kailaje v Ramrao Narsingrao Divigi, ILR 1987 Kax. 1486 (DB).










SUITS RELATING TO TRUST AND TRUST PROPERTY

Two categories of litigation contemplated in statute — In first category suit is instituted by trustees themselves — Under second category comes suit against trustees or against third parties, instituted by persons who are not trustees but are only persons having interest in trust — Special procedure and requirements laid down in Sections 50 and 51 of Act -are applicable only to suits under second category. There are two distinct categories of litigation which could arise in relation to public trusts. The first of them constitutes cases of the present type where the trustees are required to institute legal action. The second category is in relation to cases that have been referred to in Section 92, Civil Procedure Code whereby the Charity Commissioner or persons interested in the trust who have obtained sanction from him, may institute proceedings against the trust or the trustees or for that matter, against third parties for purposes of safeguarding the interests of the trust. There is no parity between the proceedings instituted by a trustee and those instituted by non-trustees. A special provision has been provided for situations where non-trustees institute litigation and for good reason. Sanction is condition precedent for non-trustees if they were to institute such proceedings, and this would be an unreasonable hurdle and an impracticable situation because it would fetter the enforcement of normal legal action of the trustees if in every legal proceedings they are required to obtain prior sanction from the Charity Commissioner. Suit by trustee for recovering trust property — Civil Court of competent jurisdiction can entertain such suit — Prior permission of Charity Commissioner is not required to be taken by trustee for instituting such suit — No requirement that such suit must be filed only in District Court — These requirements prescribed in Act are for suit by persons who are not trustees but have only interest in trust. As far as the rights of the trustees to institute legal proceedings in any Court of competent jurisdiction is concerned, the Bombay Public Trusts Act does not place any restrictions, fetters or exclusions on them. The trustees are entitled to exercise their normal rights under the law without any such restriction because, those restrictions have been put down only in relation to proceedings instituted by non-trustees. Before the jurisdiction of a particular Civil Court is taken away, that it must be demonstrated that there is an exclusion clause. As far as the Bombay Public Trusts Act is concerned, there is no such bar either direct or implied. It is true that, if suits are to be instituted by a trustee, that he could go to whichever Court has jurisdiction to entertain the dispute, but if a non-trustee is to institute a suit or a Charity Commissioner is to institute a suit, that it would have to go to the District Court. This is a special provision and if a special procedure is prescribed in relation to such situations, it would not lead to any serious anamolies or conflicts because, the two categories of suits are very dissimilar insofar as persons of different status institute them. — Shankar Narayan Giri (Dead) Represented by Lalitakumar Ramanarayan Giri, Trustee of Sri Ramachandra dkv Temple, Haliyal v Kamalabai Venkitesh Deshpande. and Others, 1997(1) Kar. L.J. 518B.



In the case on hand admittedly the plaintiff/appellant wants an injunction retraining the second defendant-Secretary to be removed and for other reliefs consent of Charity Commissioner is necessary. — Workmen of Lokashikshana Trust, Bangalore v Lokashiktihana Trust and its Newspaper Publications, Bangalore, and Other, 2001(3) Kar. L.J. 367.


It is open for anyone interested in a trust to file a suit for a declaration whether or not any property belongs to a public trust after securing the required consent under Section 51 of the Act. Any determination to be made by the Charity Commissioner under Sections 18 to 20 in regard to the nature of the property is intended for the purpose of registration of the trust. If such a question were to be raised in an incidental way after the trust is registered, it is no part of the duty of the Charity Commissioner to enquire into it. The provisions (Sections 17 and 18) as co the bar of jurisdiction of suits are qualified by Section 50. Gurupagouda v Mallanagouda, 1974(1) Kar. L.J. Page. 21 Sh. N. 72.



Where plaintiff and defendant were two brothers performing pooja of a deity and enjoying the devasthan inam lands; and plaintiff filed the suit for an injunction to restrain defendant from obstructing his possession and enjoyment or alternatively for partition and possession of his half share. Held, the suit did not require consent of the Charily Commissioner under Section 51 of the Act. If the reliefs that are sought for in a particular suit between the individuals do not affect the rights of the public at large or of the trust as such, Section 50 will not apply to such a suit. A suit, which is filed admittedly against a co-trustee by an individual, would not attract the provisions of Sections 50 and 51 so as to require the sanction of the Charity Commissioner. Karyappa Pamsappa Pujari v Ramappa, 1963(1) Mys. L.J. 461.



Section 50 provides for institution of suits by the Charity Commissioner or by two or more persons interested in the trust and having obtained the consent in writing of the Charily Commissioner under Section 51 of the Act — Suit for recovery of possession of property against person holding adversely — Held, such suit is within the purview of the Act. — Shree Gollaleshiuar Dev v Gangawwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).







After the addition of the words "proceeds thereof" in Section 50(iii)(a) of the Bombay Public Trusts Act by Act 23 of 1955, no suit could be instituted in regard to the recovery of possession of the proceeds of lands comprised in a public trust without the permission of the Charity Commissioner. The suit which was instituted prior to the amendment was a validly instituted suit and the later amendment would not make the institution of the suit illegal. — Mahadev Yeskuxmt Devulkar v Sitabai, 1962 Mys. L.J. Supp. 285 : ILR 1963 Mys. 132.



The function of the Assistant Charity Commissioner under Section 51 of the Act is very similar to the function of the Advocate General under Section 90 of the CPC, 1908. It is essentially a discretionary power coupled with duty. If the facts recorded as findings are to be interfered with under Article 226 of the Constitution it would create undue hardship to all Tribunals and quasi-judicial authorities who have to determine those facts and arrive at the findings. Therefore, the self-imposed restriction by the High Courts under Article 226 and Article 227 of the Constitution not to act as further Courts of appeal and disturb the findings recorded by the inferior Tribunals. There may be cases where a discretion exercised may be unjust but it is not the High Court which exercises the discretion. If the Charity Commissioner exercised the discretion and gave reasons as to why he has exercised the discretion in a particular manner, the High Court will not interfere with such discretion exercised on further consideration of material placed before the inferior Tribunal or authority. — Gopal Jyotiba Sadare and Another v Ramakrishna Bhimarao Kolekar and Oihers, 1990(3) Kar. L.J. 578.


Under the Bombay Trusts Act, 1950 as in force in the Karnataka State, there is no provision conferring on the Charity Commissioner power to issue an injunction against trustees restraining them from alienating trust properties. — Diwakar R.R. v M.S. Patil, 1975(2) Kar. LJ. 147 : ILR 1975 Kar. 1560.


STAY OF PROCEEDINGS WHEN THERE IS CIVIL SUIT


Where petitioner claiming under a deed of appointment by the predecessor mahant of the math filed an application under Section 22 before the Assistant Charity Commissioner and then filed an appeal against the order to the Charity Commissioner and pending the appeal some disciples of the math filed a civil suit to declare the appointment deed void and the Charity Commissioner stayed the appeal pending disposal of the suit, held, the Charity Commissioner was under a statutory duty to dispose of the appeal, though the decision may be subject to the result of the suit. In staying the appeal the Charity Commissioner had failed to exercise the jurisdiction vested in him. There is no provision under which the appeal could have been stayed. — Gurusiddeshwara Swami Guruchannabasavaswamy Hiremanth v Charity Commissioner, 1974(2) Kar. L.J. Jr. 25 Sh. N. 75.



CHARITY COMMISSIONER

The Commissioner appointed under the Bombay Public Trusts Act is a Corporation sole for all purposes under the Act. Thus, when the charity Commissioner hears an appeal under Section 70 of the Act, he hears it as a Corporation sole. Hence, by reason of Section 109 of the States Reorganisation Act, the Charity Commissioner continued to function and operate in those.areas which have now become part of the new State of Mysore. For the purpose of Section 125 of the States Reorganisation Act, it is not necessary that the corresponding Tribunal or officer should actually be within the State of Mysore. What the section means is that the Tribunal or Officer must be a Tribunal or Officer of the State of Mysore. — Channaviraswami Gum Shivayogi Sivami v M.K, Appajappa, 1960 Mys. L.J. 258 : ILR 1959 Mys. 341.


INSTALLATION OF SWAMI - RIGHTS

A mutt was registered as a public trust by the Assistant Charity Commissioner and respondent 3 was recognised as manager thereof. When later the petitioner was installed as Swami by the disciples of the Mutt, the change was recorded on the application made under Section 22 of the Act. In a revision petition filed by respondent 1 under Section 70-A, the Charity Commissioner set aside the two earlier orders of the Assistant Charity Commissioner specifically challenged, as also the order made in respect of the petitioner under Section 22 of the Act. By virtue of the installation of the petitioner and the subsequent recording of the change, the petitioner would be a person directly concerned with the possession and management of the public trust. Any order, therefore, made affecting the two earlier orders would affect the status of, and possession of the public trust by, the petitioner. He was therefore a party affected within the proviso to Section 70 of the Act. As the petitioner was neither notified nor heard by the Charity Commissioner, The order passed by him was in violation of the statutory obligation imposed on him under Section 7U-A of the Act to give an opportunity to a party affected of being heard. Hence the order of Charity Commissioner cannot be upheld. — H.H. jagadgurn Mummadi Sri Neelakanth Pattadarya v Hampanna Laxmappa Dandi, 1974(1) Kar. L.J.Jr. 109 Sh. N. 264. SEE ALSO 1987(2) Kar. L.J. Sh. N. 155 : ILR 1985 Kar. 636. & 1973(2) Mys. L.J. Sh. N. 129.


REVISION BY CHARITY COMMISSIONER AND APPEAL TO DISTRICT JUDGE

When the Commissioner has exercised his power of revision under Section 70-A of the Act, more so finally, an application by any other person aggrieved-by the order of the Commissioner is maintainable before the District Judge under Section 72. In order to attract Section 72 of the Act by any person aggrieved all that is necessary is that there is a decision by the Commissioner on a revision petition presented before him under Section 7U-A of the Act. In receiving additional evidence under Section 72(1-A) (which is analogous to Order 41, Rule 27, CPC) the District Judge must find that any of the circumstances existed for reception of the additional evidence and that the additional evidence was necessary for pronouncing judgment. He should also give opportunity to the other side to place rebuttal evidence.There is no period of limitation prescribed for aggrieved persons to approach the revisional authority under Section 70-A of the Act. But the power of revision even in the absence of a period of limitation prescribed by the relevant statute, is to be exercised by the appropriate revising authority within a reasonable time and any unreasonable delay in the exercise of the power of revision will affect the validity of the order of the revising authority. As to what is a reasonable time depends upon the facts and circumstances of each case. — Shivappa Veerappa Masnr v jagadguru Mallikarjuna Murugarajendra Swamiji, 1978(1) Kar. L.J. 479.


On being moved by appellant and certain others under Section 18, Bombay Public Trusts Act, the Assistant Charity Commissioner, Belgaum, made an order declaring certain Dargas to be public trust under the Act and further declaring certain properties to be those belonging to the said public trust. Respondents applied to the Charity Commissioner under Section 70-A of the Act to set aside the findings of the Assistant Charity Commissioner. The Charity Commissioner set aside the order and the proceedings of the Assistant Charity Commissioner and remanded the same to him for fresh disposal after giving opportunity to the parties interested to state their objections, if any. An application to the District Judge under Section 72(1) against the order of the Charity Commissioner was not maintainable. Any or every finding falling within the scope of Sections 2U, 70 and 70-A cannot be called in question under Section 72(1). From the enumeration of particulars in Section 19, it is clear that these are only some of the many questions which may be the subject of a finding or order by an Assistant or Deputy Charity Commissioner under Section 20. Whereas a finding in respect of any one of those many questions is open to appeal under Section 70 or revision under Section 70-A, Section 72(1) obviously purports to limit the scope of an application to a Court. Further, the effect of the Commissioner's order is that the whole matter is reopened for a fresh decision. There is no decision in the sense of an adjudication or a statement of a final opinion by him to the effect that the properties are trust properties or that they are not such properties. — Sayyad Sultan v Abul Aziz Saheb, 1964(1) Mys. LJ. 565. ( OVERRULED BY ILR 1990 Kar. 3069 (FB).)


Dismissal for non-prosecution of appeal before District Judge whether permissible - Whether appeal against such an order maintainable. Held: A decision referred to in Section 72(4) means an adjudication QT..3-statement of a final opinion, especially so when sub-section itself makes it clear that it should be a decision of the Court under sub-section (2) which speaks of enquiry and recording of evidence, hearing of argument and pronouncing judgment. No appeal lies against an order dismissing an application for non-prosecution passed in an application under Section 72 of the Act. — Mallikarjunayya and Others v State of Karnataka, 1984(1) Kar. L.J. 89.



DECISION AS TO TITLE TO TRUST PROPERTY

Reading Sections 79 and 80 in conjunction with Section 19 of the Act, one of the powers specifically conferred under the Act upon the Deputy or Assistant Charity Commissioner is to find out whether any property is the property of the public trust in question and the jurisdiction of the Civil Court is ousted to that extent expressly under Section 80 of the Act. Adhishaiah Kadayya Kadadevaru v Dundayya Gum Shiddayya Hiremath, 1982(1) Kar. LJ. 402 : AIR 1983 Kant. 79 : ILR 1982 Kar. 555.


All that Sections 79 and 80 provide for are when a question arises as to the existence of a trust or its public nature or whether any property belongs to it such questions cannot be decided by the Civil Court but only by the authorities under the Act subject to application under Section 72(1) to be decided by the Civil Court and a further appeal to the High Court. That does not militate against the specific power conferred upon the authorities under Section 72 of the Act. Section 70 clearly enumerates the serious matters on which an appeal could be filed. Section 70-A enumerates the power that can be exercised by the Charity Commissioner in an appeal filed under Section 70 of the Act. It empowers him to call for and examine the records and proceedings of such a case for the purpose of satisfying himself as to the correctness of the finding recorded or order passed and may annul, reverse, modify such finding or order with the further power of holding an enquiry or taking additional evidence as may be necessary. And such an order is made subject-matter of an application under Section 72(1) of the Act. Shivalingappa Murigeppa Kadi v Shivayogttppa, ILR 1990 Kar. 3069 (FB).



MADRAS CHARITABLE AND ENDOWMENTS ACT 1926

MANJUNATHA TEMPLE AT DHARMASTHALA

The Manjunatha Temple at Dharmasthala is part and parcel of the composite institution known as Dharmasthala and is so inseparably connected with it that it is its integral part. It cannot therefore be held that the Manjunatha Temple is an endowment within the meaning of Section 9(11) of the Act, as it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith; or that it has any such premises of its own as could be said to form its own endowment. The effect of Section 2 of the Madras HRE Act, 1926 is to exclude not only private religious endowments but also Jain religious endowments. The Act is confined to Hindu religious endowments and will not be applicable where there is no such endowments at all. By virtue of Section 2, the Act applies only, to Hindu public religious endowments. Dedication to a deity necessarily implies cessation of individual ownership. A place of worship which is open to both Jains and Hindus in general or has a mixed character would be a temple within Section 9(12) of the Act. — Commissioner for HRCE v Ratnavarma Heggade, AIR 1977 SC 1846.


SUIT WAS FOR A DECLARATION THAT THE TEMPLE BELONGED EXCLUSIVELY TO

The suit was for a declaration that the temple belonged exclusively to Charodi Community of Mangalore and therefore the State and the Area Committee had no right to appoint trustees and enforce the provisions of Sections 31, 39, 41, 42, 44 and 76(5) of the Madras Act, 1951 and for possession of the 'A' Schedule properties in the possession of defendant 3 who had mismanaged the affairs of the temple. The suit was filed by the President of Charodi Abhyudaya Sangha of the Charodi Community. Held, (1) that the inscription on the stone slab in the garbha gudi of the temple etc the effect "Temple belonging to Charodi People" was the most important circumstance or piece of evidence in the case which clearly indicated that the temple belonged exclusively to the members of the Charodi Community. Merely because brahmins were employed for performing pooja and other religious ceremonies in the temple, it did not necessarily follow that the temple was not one exclusively belonging to the Charodi Community. As the temple was a denominational temple, defendants 1 and 2 were not entitled to enforce the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act inasmuch as all those provisions had been struck down by the High Court in Mukundaraya v State. 1959 Mys. L.J. 708. (2) Since the Charodi Abhyudaya Sangha was an association of the members of the Charodi Community and the suit was filed under Order 1, Rule 8, Civil Procedure Code by the President of the Sangha who was admittedly a member of the Charodi Community, the suit was maintainable. (3) A dispute of the type in the suit which was for restraining the defendants from enforcing the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act struck down by the High Court would not come within the ambit of Section 57 of the Act. The decree for possession passed by the lower Court against all the defendants was not proper. The decree for possession should be only against defendant 3 alleged to be in possession of the property. — State of Mysore v Charodi Abyudaya Sangha, 1972(1) Mys. L.J. 431.


GOVERNMENT HAS TO DECIDE TO APPLY ACT

The Madras Hindu Religious and Charitable Endowments Act, 1951 does not of its own force apply to Hindu Charitable Endowments. Its provisions have to be extended by following the procedure prescribed by Section 3. Where the institution in question is claimed not to be a Hindu public charitable endowment within the meaning of the Act, the Government should decide the dispute before proceeding to take action and they cannot take action on the assumption that they have jurisdiction, relegating the claimant to take such steps as he is advised to get rid of that decision. The existence of the fact that the institution in respect of which the Government propose to take action is a charitable endowment within the meaning of the Act is the very foundation of the Government's jurisdiction. All matters of disputes in any manner relating to the exercise of the Government's power under Section 3 have to be decided by the government itself. Maji Thimmanna Bhat v State of Mysore 1959 Mys.L.J. 109.


TEMPLE

Order passed by Deputy Commissioner declaring institution as — Direction to institution to submit accounts and pay contributions to Board — Suit for declaration that institution is not "temple" coming within purview of Act and that order of Deputy Commissioner is nullity — Held, order of Deputy Commissioner, though erroneous, is binding and conclusive until it is set aside in appeal or revision — Since no appeal or revision was preferred against order, same has attained finality and is enforceable — Suit, held, is not maintainable. H.M. Basamma (deceased) by LRs v The Commissioner of Hindu Religious and Charitable Endowments, Bangalore and Another, 2002(4; Kar. L.J. 535.


PUBLIC TEMPLE - TESTS TO DETERMINE

A denominational or sectional temple belonging to a particular community, which is not a private temple, is a temple within the definition in Section 6(17) of Madras Act. In examining whether a temple is dedicated for the benefit of all the members of the Hindu community, the important consideration is, who is the beneficiary of the dedication. It is the worshipper who is the beneficiary. If the members of the Hindu community in general have offered worship in the temple for a considerable period of time, without anybody's permission and without any prevention, it would be reasonable to infer that the temple was dedicated for the benefit of or the use of the Hindu community in general. That the members of one community have some special privileges or that only members of the community took part in certain rituals or functions may not be inconsistent with the right of the Hindu community in general having a right of worship in the temple. — B.C. Achia, Assistant Commissioner, HR and CE v Gurupur Gum Venkataraya Narasimha Prabhu, 1966(1) Mys. L.J. 519.


TEMPLE, PRIVATE OR PUBLIC

The temple was an ancient temple founded about 40 years ago. The temple was founded by 37 Goud Saraswat Brahmin families of Gurpur. The trustees managing the temple belonged always to the members of the said community, the landed properties owned by the temple had all been endowed by members of this community and there was no reliable evidence of endowment of any immovable property by any person outside the community. Held, the temple (known as Varadaraj Venkataramana Temple at Gurpur in Mangalore Taluk, S.K. Dist.) was not a public temple, but a temple belonging to the Goud Saraswal Brahmin Community of Gurpur. The circumstances disclosed in evidence in this case did not support the inference that Hindus generally used the temple as a place of worship as of right. — Gurpur Guni Venkataraya v Achia B.C.,ILR 1977 Kar. 685 (SC): AIR 1977 SC 1192.




A LAW WHICH TAKES AWAY THE RIGHT OF ADMINISTRATION FROM THE HANDS OF A RELIGIOUS DENOMINATION ALTOGETHER AND VESTS IT IN ANY OTHER AUTHORITY WOULD AMOUNT TO VIOLATION OF RIGHT GUARANTEED UNDER ARTICLE 26 OF THE CONSTITUTION.

Sections 398, 41, 42 and 44 of the Madras Hindu Religious and Charitable Endowments Act are ultra vires as being violative of Article 26 of the Constitution as the effect of these sections is to take away altogether the right of the denomination to manage their institutions. Sections 18, 45(3), 50, 71(4) and 103(e)(ii) are valid. Sub-section (3) of Section 45 in conferring power to appoint a trustee temporarily merely imposes a reasonable restriction and is therefore, valid. Section 103(e)(ii) is not ultra vires as it does not transfer the power of the denomination to the Area Committee. The effect of Section 18 is to impose a reasonable restriction upon the right of administration by the denomination and not to take away altogether the said right and is valid. Section 50 also imposes a reasonable restriction on the power of management by the denomination and is valid. Section 71(4) providing for appointment of auditors for scrutinising the accounts is not violative of Article 26. Section 76(5) empowering making of grants out of surplus funds to other institutions is invalid being ultra vires of the powers of the Legislature. The levy under Section 76 is a fee and the imposition should be commensurate with the services to be rendered and the expenses (hereof, so that there may not be any surplus. Further,-the surplus, if any, cannot be diverted for any purpose other than the purpose of defraying the expenses of such services however laudable the said purpose may be. It cannot be said that a percentage of income as the basis on which the right of contribution has been fixed under Rule 1 framed under Section 76(1) of the Act is unreasonable. — K. Mukundaraya Shenoy v State of Mysore, AIR 1960 Mys. 18 : ILR 1959 Mys. 815.





APPOINTMENT OF ADMINISTRATORS

The power conferred by Section 20 is the power of superintendence and control of the temple and does not include the power to appoint an administrator. — Veerabasappa v Commissioner. H.R.C.E., 1974(2) Kar. L.J. Jr. 71 Sh. N. 266. Appointment of Administrator to perform the functions and discharge the duties of the Board of Trustees of a Temple — Proper person, who is Manager/Executive Officer of a Temple who is required to function under the Board of Trustees — Held, not proper to be appointed as an Administrator. Power of Superintendence not confined to any particular subject or matter relating administration of Religious Endowments — Open to commissioner to pass such orders as are necessary to ensure that endowments are properly administered and their income is duly appropriated — In a given case where the situation demands that administration of Religious institution cannot be safely left in the hands of the Trustees whose term has expired, and at the same it is not possible to constitute a new Board of Trustees, it is open to Commissioner to appoint an Administrator — Explained — Case-law discussed. — B.L Tarali v Kenya Ravindranath Shetty and Others, ILR 1990 Kar. 1114 (DB).


APPOINTMENT OF TRUSTEES

Appointment of trustees to Mali Mahadeshwaraswamy Temple — Legality — On facts, appointments upheld. — B. Madappa and Another v Commissioner for Religious and Charitable Endowment and Others, 1987(3) Kar. L.J. 238.


In this case, admittedly there is no scheme governing the temple in the matter of its administration. Convention is to have elected Trustees including a Managing Trustee. If an election is not properly conducted, the right of the denomination to administer the institution through the elected Trustees will get frustrated. Therefore, the Commissioner has the power and duty to examine whether the Trustees are properly elected. He can issue appropriate order, direction or instruction to regulate the election. He may evolve a proper procedure to conduct the election. He may observe whether all eligible voters has a proper opportunity to participate in the election. Such a power flows from his power of superintendence and control over the administration of the endowment in question. — Sri Ananteshwara and Chandra Mouleshwara Temple v Deputy Commissioner for Hindu Religious and Charitable Endowments, Dakshina Kannada, Mangalore, 1990(1) Kar. L.J. Sh. N. 15 : AIR 1989 Kant 57.






MADRAS HIGH COURT DECLARING SEVERAL SECTIONS AS ULTRA VIRES

In W.P. No. 668 of 1951, the Madras High Court held certain sections of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951) to be ultra vires, and issued a mandamus directing the State Government from enforcing any of the said provisions of the Act against the petitioners. By amending Act 27 of 1954 some of the sections impugned by the Madras High Court were amended. The sections held ultra vires by the Madras High Court, inter alia were, Sections 20, 21, 30(2), 31, 63 to 69, 76 and 89. Petitioners challenged the said Amending Act 27 of 1954. Held, that substantial changes had not been effected by the Amendment in Sections 21, 30{2), 31, 63 to 69 and 89 of the Act and therefore the mandamus issued by the Madras High Court continued to be operative so far as those sections were concerned. But the amendment of Section 76 levying a fee for services rendered is valid and enforceable. It would not be correct to say that as a result of the decision of the Madras High Court in W.P. No. 668 of 1951 and in particular as a result of Section 20 being declared invalid the State is disabled from rendering any service and as there is no service to be rendered fees imposed by Section 76 of the Act cannot be charged. There are other sections of the Act which have not been touched by the Madras High Court in W.P. No. 668 of 1951 and in view of those sections, there are still services to be rendered by the State under the Act for which the fee in question can be levied. They are Sections 25,27, 45, 46, 51 and 72. — Devaraja Shenoy v State of Madras, 1960 Mys. L.J. 245: ILR 1959 Mys. 365.

NON HINDU AS A TRUSTEE OF HINDU TEMPLE

Founder is a person providing the original endowment, but the persons who subsequent to the foundation furnish some additional contributions do not thereby become founders. Under Section 22 of the Act there is a legal prohibition for a non-Hindu (Jain) to hold office of a trustee of a Hindu temple. Simply because a non-Hindu was acting as a trustee for a long period, he is not entitled to continue as a trustee. In order that a temple may be a composite one, it must be open to devotees of all religions, it is conceivable that there might be temples which are composite in nature; that depends upon the founder's universal outlook on life; he might, while founding the institution, keep it open to the devotees of all religions. But because some devotees of other religions go to a temple which is exclusively for Hindus, that temple would not become a composite one.
Parties should not be permitted to make out altogether a new case for the first time in the Appellate Court to the prejudice of the opposite party. —Jinnappa Hegde v Srinivasa Tantri, 1962 Mys. L.J. Supp. 109.


SANCTION TO ALIENATION

The sanction that is required under Section 29 of the Madras Hindu Religious and Charitable Endowments Act to an alienation can be obtained either prior to the transaction or subsequent to the same. — K. Govrrdhana Bhat v Venkatramana Temple, 1958 Mys. L.J. 488 : ILR 1958 Mys. 367.


LEASE OF PROPERTY

In the absence of sanction, a permanent lease of property belonging to a religious institution is void under Section 29 of the HR and CE Act. Since the lease is void the provisions of Section 53-A, T.P. Act will not apply. The plaintiff is not estopped from contending that the lease is void by reason of the recitals in the rent receipt, since there can be no estoppel against a statutory provision. Where the landlord accepts rent subsequent to the date of the void lease, the tenant becomes a monthly tenant. Relied on: AIR (1972)1 SCWR 969 and 1962 Mys. LJ. 861 C.P. Rodrigues v Sri Durga Parameswari Temple, 1973(2) Mys. LJ. Sh. N. 300.




BOARD OF TRUSTEES - CONSTITUTION OF

It can be constituted in respect of religious institution over which there is no "Area Committee" and number of persons appointed as trustees must not be less than three and more than five and power to constitute Board rests with Commissioner — Where Commissioner has not passed any order in this regard, order passed by Assistant Commissioner appointing nine persons as trustees held, without authority of law. The impugned order is passed by the 3rd respondent in exercise of purported Rule 17 of the rules of the Department. Learned Additional Government Advocate is unable to produce the rule referred to in the impugned order despite granting time. Therefore, it has to be presumed that the impugned order is without the authority of law. .... .Section 39(1) of the said Act stipulates that in respect of the religious institution over which there is no "Area Committee", the Commissioner shall constitute Board of Trustees consisting of not less than three and not more than five persons. In the instant case, the Commissioner has not passed any order. No material is placed before the Court to show that "Area Committee" was constituted in accordance with the provisions of the Act. It is not the case of the 3rd respondent that he has passed the impugned order exercising the power under Section 39 of the Act. The impugned order is without the authority of law. Sundara Gowda v Commissioner for Religious and Charitable Endowments in Karnataka, Bangalore and Others, 1999(6) Kar. L.J. Sh. N. 14.


TRUSTEES – ADMINISTRATION - ARRANGEMENTS

Any arrangement between the trustees for carrying on the administration of a temple is not a scheme and cannot have the effect of overriding statutory provision regulating the administration of religious institutions. A regulatory statutory provision does not become automatically ineffective, notwithstanding that the temple is a denominational one.
Section 40(2) and Rule 15 enable the Assistant Commissioner to convene a meeting of the trustees of a denominational temple to elect the Chairman. — K. Raghavendra Nayak v State of Mysore, 1974(1) Kar. L.J. 99 : ILR 1974 Kar. 131.


CHAIRMAN OF BOARD OF TRUSTEES CUSTODY OF TEMPLE PROPERTY

The relevant rules recognize only the Chairman of the Board of Trustees, when the Board comprises of more than one trustee, as the only person entitled to the custody of the property of the temple and therefore he alone has the right to apply for the custody of the temple property. It is not in all cases that the trustees as a body must join. To an application seeking merely to secure the custody of the temple property, only those persons who are either entitled to the custody or those who are resisting the same without challenging either the identity of the property or the right of the temple to the same that are necessary parties. A person elected as Chairman of the Board of Trustees of a (denominational) temple under Section 40(2) of the Act read with Rule 16 is the trustee for purposes of Section 87. — Raghavendra Nayak case 1976(2) Kar. LJ. 258 : AIR 1977 Kant- 53 : ILR 1977 Kar. 43.



SCHEME EMPOWERING THE COMMISSIONER

A clause in a scheme empowering the Commissioner to appoint one of the members as managing trustee is in conflict with the Act and is liable to be struck down. Where a clause in the scheme provided that one of the non-hereditary trustees shall be a Brahmin and in the event of the Board appointing more than one non-hereditary trustees, the second shall be a Bunt, held, the scheme did not require that appointments should be made exclusively from Brahmins and Bunts alternatively and the clause did not prohibit the appointment of members of other communities as non-hereditary trustees. — Vasudeva Bhat v Commissioner for HR & CE, 1981(2) Kar. LJ. Sh. N. 28.


BREACH OF TRUST OR MISMANAGEMENT

Where the income from the trust for performing samaradhana in a temple which was a listed institution, was less than Rs. 20,000, the Deputy Commissioner has power to inquire into an application under Section 45 relating to the trust. When the question before the Deputy Commissioner is whether there was a breach of trust or mismanagement, it should not allow the nature of the proceedings to be altered by adding supplemental parties and enquiring at their instance into the question whether the trust was a religious trust within Section 6(14). — Vasudeva Prabhu v Commissioner for Religious Endowments, 1973(2) Mys. LJ. Sh. N. 212.


ORDER OF APPOINTMENT TO OFFICE OF HEREDITARY TRUSTEE OF TEMPLE

Appeal against — Only rival claimant to office who has been dissatisfied with order has right and locus standi to take appeal before Commissioner — Person who is not rival claimant, is stranger, and such person has no right to question appointment — Appeal by such person is incompetent — Order of Appellate Authority disposing of such incompetent appeal is without jurisdiction and liable to be quashed. Every part of statute must be so interpreted as to give meaning to it — Interpretation which makes one section of statute nugatory or otiose must be avoided — Power conferred on Deputy Commissioner to settle dispute regarding rival claims to office of hereditary trustee of temple and to make appointment when vacancy occurs in that office must not be confused with his power to enquire into and decide whether trustee holds or held office as hereditary trustee.
Held: Under Section 47(1), when a permanent vacancy occurs in the office of a hereditary trustee, the next in line of succession to the last holder of office is entitled to succeed to the office. In case there is a dispute as to who should succeed to the office, the same has to be inquired and decided by the Deputy Commissioner under Section 47(3) of the Act. The person aggrieved by the order under Section 47 has a right of appeal to the Commissioner. .... The person who has a right of appeal is one who is dissatisfied with an order passed under Section 47(3) i.e., to say, "a rival claimant to the office of the hereditary trusteeship", which necessarily means that a non-rival claimant or a person who is not in the line of succession of the last holder of office i.e., a stranger has no right to question the appointment of a person to the post of a hereditary trusteeship. .... In the facts of the present case, the contesting respondent is not a rival claimant to the office of hereditary trusteeship nor claims to be a person in the line of succession of the last holder of office. In other words, he is a stranger to the claim for the post of hereditary trusteeship. He therefore, is not a person who can be said to be affected by the order of the Deputy Commissioner. His appeal therefore, to the Commissioner, was incompetent. In other words, the Commissioner had no jurisdiction to hear and decide an appeal filed by a person not affected by the order under Section 47(3). The Appellate Authority's order therefore, is liable to be quashed as being without jurisdiction. Whenever a 'trustee' makes a claim that he is a hereditary trustee or at some point of time earlier was holding a post of a hereditary trustee and if the same is disputed/ that has to be resolved by the Deputy Commissioner. Clause (b) of Section 57 therefore, presupposes that the disputant must already be appointed or holder of the office of trusteeship. In other words, if a person is not a trustee, and he makes a claim to the office of hereditary trusteeship, such a claim or dispute necessarily gets excluded from the operation of the said clause. The holding of office of trusteeship is a sine ana nan for the operation of Section 57(b). In a case where a person makes a claim to the office of the hereditary trusteeship claiming on the basis that he is in the line of succession to the last holder of office, and if such a claim is disputed, it is Section 47(3) which has application, not Section 57(b). The dispute under Section 47(3) cannot be confused with a dispute stated in Section 57(b). Each one operates in a different field and in different situations. It is a cardinal principle of interpretation of statutes that every part of a statute must be interpreted as to give meaning and as to avoid such interpretation
which makes one section or part of statute nugatory or otiose. — M. Sripathi Sampigethaya v P. Seetharam Bhat and Others, 2003(4) Kar. LJ. 98A.



MAHANT’S – MATADHIPATHI’S - POWERS

The power of the mahant over the income of the Math does not differ in quality from the power he has over the property of the Math. The property and the income belong to the Math, and must therefore be applied for the purposes of the math and consistently with the usage and custom of the endowment. Section 52(l)(f) of Madras Act which authorises the institution of a suit for removal of a Mahant where he is found to have wasted the funds or properties of the institution or has applied such funds or properties for purposes wholly unconnected with the institution does not amount to unreasonable restriction upon the fundamental right of the Mahant in the property under his management. Having regard to the large powers which the Mahant has over the application of the funds not only for maintenance of the dignity of his office, and expenses for the maintenance of the math, but also for such purposes, religious or charitable as are not inconsistent with the usage and custom of the endowment, application of the funds for personal enjoyment or luxury by the Mathadhipathi or for purposes wholly unconnected with the institution would alone be covered by the second part of Section 52(l)(f). By express enactment the expression 'pathakanikas' for the purpose of Section 55 as amended, means gift of property made to a Mahant as the head of the Math. Obligations imposed upon the Mahant to maintain regular accounts of the receipts of pathakanikas of the character defined in Section 55 and to utilise the same in accordance with customs and usages of the institution cannot be regarded as an unreasonable restriction upon the fundamental right of the Mahant. Section 55 as amended will not apply to pathakanikas which are proved to be gifts, personal to the Mahant. Section 76(1) providing for levy of contribution is valid. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out ot the amounts collected, there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax. It is true that ordinarily a fee is uniform and no account is taken of the varying abilities of different recipients. But absence of the uniformity is not a criterion on which alone it can be said that it is of the nature of a tax. A fee being a levy in consideration of rendering service of a particular type, correlation between the expenditure incurred by the Government and the levy must undoubtedly exist, bui a levy will not be regarded as a tax merely because of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some ol the contributories do not obtain the same degree of service as others may-Section 82 validating contributions which had been levied under Section 76(1) and (2) before it was amended by Act 27 of 1954 is valid. The State Legislature has power to levy a fee under the VII Schedule, List 111, Item 28 read with Item 47. The Legislature was therefore competent to levy a fee for rendering services in connection with the maintenance, supervision and control over the religious institutions and it was competent to levy the fee retrospectively. — Shri H.H. Sudhindra Thirtha Swamiar v Commissioner for Hindu Religious and Charitable Endowments, Mysore, AIR 1963 SC966









DEPUTY COMMISSIONER’S POWERS

Where the question whether a temple is a public or private temple is in dispute, the Deputy Commissioner should in (he first instance decide the dispute (which he is empowered by Section 57 of the Act to do), and it is only thereafter that the Commissioner would have power to demand contribution and audit fees under Section 76. — Sri Varadaraja Venkataramana Temple v Commissioner of Charitable Endowments, W.P. No. 178/1957, dated 21-3-1960. Suit for declaration of right to Archakship and emoluments — The Deputy Commissioner has, under Section 57(e) of the Act, jurisdiction to determine whether a person is entitled by custom or otherwise to the office of archak of a temple, and to the emoluments and perquisites attached to that office. Hence under Section 93 of the Act a suit for declaration of the right to Archakship would be barred. The Deputy Commissioner has jurisdiction to determine not only the right to perquisites and emoluments, but has also jurisdiction to determine the right to hold the office to which the emoluments or perquisites are attached. The power conferred on the Deputy Commissioner under Section 57 of the Act is a power to adjudicate on certain disputes relating to religious institutions and hence such power of adjudication cannot be regarded as interfering with the right to the denomination to manage the affairs of the institution. Hence Section 57 is not violative of the fundamental right guaranteed under Article 26 of the Constitution. Shamaraya v Beloor Sri Mariamma Temple (1973) 2 Mys. L.J. 131.


RIGHT TO ARCHAKSHIP OR RIGHT TO EMOLUMENTS

When a person asserts his right to archakship or right to emoluments and the opposite party disputes the claim, the authority has the power to decide whether he had right to office and if so what was the emoluments to which he was entitled to. Further, it may be seen that clause (e) of Section 57 provides that the Deputy Commissioner can also decide as to what the established usage of a religious institution is in regard to any other matter. Therefore, if the plea of the claimant in a given case is, having regard to the established usage, that the persons belonging to a particular group are entitled to perform pooja in the temple for a specific period, that would also fail within the scope of the words 'any other matter'. — Kaduveera Mada Thammadi v Madathimmadi, G.P., 1987(1) Kar. LJ. Sh. No. 98 : ILR1986 Kar. 1051 (DB).



ALLEGATION OF, AGAINST GOVERNMENT — MALA FIDE INTENTIONS CANNOT BE ATTRIBUTED TO GOVERNMENT IN THE ABSENCE OF ALLEGATIONS IMPLICATING ANY PARTICULAR PERSON/S IN THE GOVERNMENT

The High Court will not investigate the allegations of mala fide intentions whether made expressly or impliedly unless any specific person is named to be behind such mala fide action. The Government is in animate in certain aspects or in a certain sense. To whom the mala fide, action has to be traced must be made clear by those who have accused the Government of any mala fide action, Such person then may offer proper defence. In the absence of such allegations implicating any person in the Government, it will not be proper for this Court to attribute mala fide intentions to the Government in passing the impugned order. — Quraish Educational Society and Another v State o/Karnataka, 1987(1) Kar. LJ. 66,

MYSORE RELIGIOUS AND CHARITABLE INSTITU­TIONS ACT, 1927


MUZRAI LANDS RESUMPTION

A Muzrai Officer could exercise the power for summary resumption of muzrai lands under Section 10 of the Act only if the lands are inam lands granted by the Government to the institution either for its upkeep or for the maintenance of persons rendering service in connection therewith. The mere fact that the lands are extensive or that they are situated close to or around the institution cannot by itself support the inference that they must neces­sarily be inam lands granted by the Government. — Abdul Rehab Khan v State of Mysore, 1963(1) Mys. L.J. 184


LEASE OF PROPERTY

Section 9(2) prohibits the lease of a property belonging to Muzrai Institutions for a term beyond five years without the previous approval of the government or by such officer as may be empowered. Under Government Order dated 30-11-1944 the Muzrai Commissioner is given power to sanction leases of non-agricultural lands upto a period of 20 years when the lease amount exceeds Rs. 500 and this order is still in operation. The order would amount to previous approval envisaged by Section 9(2). — State of Karnataka v S.K. Rama Rao, 1977(1) Kar. LJ. 75 : ILR 1976 Kar, 1587.


PUBLIC OR PRIVATE TRUST

The scheme of the Act is that the Court on a reference under Section 13 of the Act would determine only whether any charitable or religious trust has been actually created in respect of any institution and in a suit instituted under Section 21 the Court would determine whether such a trust was dedicated for the benefit of the public. Section 13 does not cover an investigation regarding the nature of the trust. —Muzrai Officer (Assistant Commis­sioner) Kolar v Dakappa and Others, 1982(1) Kar. L.J. 392 (DB).




SUIT CLAIMING TO BE THE OWNER OF A TEMPLE

Learned Counsel for the petitioners submit­ted that the language of Section 13 of the Mysore Religious and Charitable Institu­tions Act, 1927 which inter alia provides for reference of a dispute whenever a dispute arises as to whether any charitable or religious trust has been actually created in respect of any institution, the muzrai officer, may, with the sanction of the Government, make a reference to the Court of the District Judge in whose jurisdic­tion the institution or the greater part of the property thereof is situated for adjudi­cation. It is therefore contended that, since the dispute was there, the Court of the District Judge alone was competent to decide and not the High Court. The argument is rejected on the sole ground that the suit instituted by the predecessor in title was not on the basis of Section 13 of the Act, but on the basis of the deed of settlement said to have been executed by one Sukandaramma who had been permitted by the Committee of management to be in possession of the temple and its properties. Therefore, it was not a matter arising under the provisions of the Mysore Religious and Charitable Institutions Act, 1927 simpliciter but a matter arising in regard to civil rights of the petitioners or their predecessors in title on the basis of the instru­ment said to have been executed by Sukandaramma who has not competent to do so. If ultimately in deciding the essential issue raised in the suit, that is, whether the plaintiff was the owner of the temple, the answer was that it was a public temple, it cannot be said to be a decision without jurisdiction, much less is it possible for any other Judge of this Court to sit in Judgment over the earlier decision of this Court and say that the decision is not binding on the petitioners, who are successors in interest when no appeal was preferred by the petitioners against that finding. — Chandra Prabha and Another v Vijaya and Others, 1992(4) Kar. L.J. 136.


TRESPASSER CLAIMING RIGHTS

Where a trespasser claims in his own right property which is alleged to belong to a trust, the Muzrai Officer has no power to make any order or take action under any of the sections. —1961 Mys. L.J. 708.


MISMANAGEMENT OF MUTT — ENQUIRY

Under the Act a Mutt is a muzrai institution. But Section 17 of the Act cannot be invoked to hold an inquiry against the management of the Mutt. Section 24 excludes the applicability of Section 17 which is in Chapter III to Mutts. Section 26 provides a separate machinery with regard to Mutts. Whether a par­ticular Mutt is private or public would depend upon the construction of the grant if there was one and if there was no grant by which it was founded, then on the custom and usage of the institution. That persons have contributed to the renovation of the institution is not relevant for determining the nature and character of the institution. — Niravanappa N.M. v KRATand Others, 1981(1} Kar. L.J. 477.





TAKING POSSESSION OF ENDOWED PROPERTY

Authority is muzrai officer and not Government — Shree Yogakshatriya Sadhu Shetty Sangh v Muzrai Officer, 1972 Mys. L.J. Sh N. 81.




APPOINTMENT OF ARCHAK — QUALIFICATION PRESCRIBED FOR

In circular issued in 1892 much before Act came into force — Circular is only executive instruction with no legal force behind it — Government is competent to frame rules prescribing qualification.
Tirath S. Thakur, }., Held.—The qualifications in question are said to have been prescribed in the form of an executive order which does not prima fade have any legal action behind it. The circular relied upon and contained in the Muzrai Manual is said to have been issued some where in 1892, i.e., much before the promulgation of the Karnataka Religious and Charitable Institutions Act, 1927. It is therefore, doubtful whether any such qualification prescribed could at all be called in aid for challenging the appointment of the second respondent particularly when the Act does not recognise the same nor is any such qualification prescribed or adopted under the rules that the Government is empowered to frame under Section 41 of the Act. — G.C. Pmbhuswamy v The Special Deputy Commissioner, Tumkur District, Tumkur and Others, 1997(1) Kar. LJ. 261-A.

POWER TO APPOINT AND DISMISS AN ARCHAK

The power to appoint and dismiss an archak is conferred on the Muzrai Officer. Muzrai Officer is the Deputy Commissioner or the Assistant Commissioner to whom power is delegated. Hence the Tahsildar has no power to dismiss an archak under the Act. — Shivalingaiah v Tahsildar, (1974)2 Kar. LJ. Jr. 64 Sh N. 236. SEE ALSO Chandrappa, P.B. v The Special Deputy Commissioner, Tumkur and Others, 1987(2) Kar. L.J. 144.

(TO BE UPDATED)

KARNATAKA LAND LAWS