judgement:
minal Appeal No. 146 of 1959.
Appeal by special leave from the judgment and order dated January 5, 1959, of the Punjab High Court in Criminal Appeal No. 238 of 1958.
J. N. Kaushal and Naunit Lal, for the appellant.
B. K. Khanna, R. H. Dhebar and D. Gupta, for respondent.
April 26.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special leave, is against the judgment of the Punjab High Court dismissing the appellant 's appeal and confirming his conviction under section 302 and section 307 read with section 149, Indian Penal Code.
The case for the prosecution was that the appellant and twelve other persons who were tried with him, had, on account of a dispute about the possession of a plot of land, assaulted Darshan, deceased, and his companions, when they were returning from their fields and that Darshan Singh and his companions also struck the appellant 's party in self defence.
In the incident, Darshan and Nand Lal received injuries on the one side while Daya Ram, Hamela and Kartar Singh the appellant, received injuries on the appellant 's side.
Darshan Singh died on account of the injuries received.
Daya Ram stated that when be, Kartar Singh, Hamela and a few other persons were going near about their field, Darshan, Nand Lal and others, who happened to be sitting on a well, challenged them and Nand Lal remarked that he would not let him (Daya Ram) escape.
At this fight ensued between both the parties in which injuries were inflicted on each, other.
Daya Ram said that he did not know who speared Darshan, deceased.
397 Kartar Singh stated that a member of Nand Lal 's party caused a spear blow in his abdomen and that he then ran away.
He states that he did not cause any injury to anybody.
Hamela stated that Darshan and others assaulted his party when they were going to plough the land in dispute and that they caused them, injuries in selfdefence.
The learned Sessions Judge, after noting the allegations of the parties and the admitted facts about the dispute with respect to the plot of land, said: "It is also not denied that the parties in this case instead of taking resort to law wanted to force the issue by the force of arms and for that purpose both the parties collected number of persons from Seel and other villages who were armed with deadly weapons such as spears, gandasis and sticks and in order to decide the issue had a pitched fight which was pre concerted.
The Public Prosecutor therefore maintained that under these circumstances the question of right of self defence to any party does not arise.
" The learned Sessions Judge also said: "This proposition of law has not been challenged by the defence.
As observed above, in this case, both the parties, in order to assert their rights, had a free fight which was pre concerted with the set purpose of forcing the issue mentioned above.
" He further said: "The only point therefore which requires determination in this case is whether all or only some of the accused did participate in this assault," and came to the conclusion that three accused, viz., Daya Ram, Hamela and Kartar Singh, who had admitted their presence in the incident and had received injuries, were proved to have taken part in that free fight, and that the participation of the other ten accused in the case was not established beyond doubt.
He, however, said: "Although I feel that Daya Ram, Hamela and Kartara accused were accompanied by at least 9 or 51 398 10 persons, but it is difficult to say who those 9 or 10 persons were." He therefore acquitted those ten persons giving them the benefit of doubt.
The three convicted persons preferred an appeal to the High Court.
Two questions were urged at the hearing.
One was that when there was no evidence that there were more than five persons in the fight on the side of the appellants, the learned Sessions Judge could not, in law, record a conviction under section 302 read with section 149, he having acquitted the other ten persons specifically named by the P. Ws., as being the companions of the appellants.
The other point was that the other party was the aggressor.
The High Court, on the first point, said.
: "The circumstances of this case leave no manner of doubt in our mind that there were a large number of persons on the side of the appellants and this number must have exceeded five, and was more or less near the number of persons who were actually accused in the case.
" On the second point, it said: "We have no manner of doubt in our mind that there is no question of right of private defence and it is a clear case of a free fight between both the parties.
It would not therefore be of any importance as to who gave the first lalkara and who started the fight.
" It further held that the appellant 's party formed an unlawful assembly and its common object was to cause injuries to the opposite side which could result in the ordinary course of nature in death and, consequently, the conviction of the three appellants, whose participation could not be doubted, under sections 302 and 307 read with section 149, Indian Penal Code, was well based and must be upheld.
Two points have been urged in this Court: (i) When ten out of the thirteen persons charged with the offence have been acquitted, the remaining three persons cannot constitute an unlawful assembly; (ii) in a case of free fight, each participant is liable for his own 399 individual act and as the appellant is not proved to have actually caused any injury to Darshan or Nand Lal, he could not be convicted of the offences under sections 302 and 307.
If the Courts below could legally find that the actual number of members in the appellant 's party were more than five, the appellant 's party will constitute an unlawful assembly even when only three persons have been convicted.
It is only when the number of the alleged assailants is definite and all of them are named, and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants ' party must have consisted of five or more persons.
The acquittal of the remaining named persons must mean that they were not in the incident.
The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognizing them.
This is clear from the observations in Dalip Singh vs State of Punjab (1) of this Court: "Now mistaken identity has never been suggest ed.
The accused are ail men of the same village and the eye witnesses know them by name.
The murder took place in daylight and within a few feet of the two eye witnesses.
" The same cannot be said in this case.
The witnesses are from village Seel.
A good number of the accused are from other villages.
Only Nand Lal and Chetan Singh, P. Ws. 22 and 23, named all the thirteen accused.
The other prosecution witnesses, viz., Prem Singh, P.W. 15, Puran, P. W. 16, Jethu, P. W. 17 and Norata, P. W. 18, did not name all the thirteen accused.
None of them named more than seven accused and all of them said that there were thirteen persons in the appellant 's party.
In this state of evidence, it is not possible to say that the Courts below could not have come to the conclusion that there were more than five persons in the appellant 's party.
(1) [1954].C.R. 145,150.
400 It follows therefore that the finding of the Courts below that the appellant 's party formed an unlawful assembly and that the appellant is constructively liable for the offences under section 302 and section 307, Indian Penal Code, in view of section 149, is correct.
The second contention that in a free fight each is liable for an individual act cannot be accepted in view of the decision of this Court in Gore Lal vs State of U. P. (1).
This Court said in that case "In any event, on the finding of the Court of first instance and of the High Court that both the parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is wholly immaterial," and confirmed the conviction under section 307 read with section 149, Indian Penal Code.
It may, however, be noted that it does not appear to have been urged in that case that each appellant could be convicted for the individual act committed by him.
When it is held that the appellant 's party was prepared for a fight and to have had no right of private defence, it must follow that their intention to fight and cause injuries to the other party amounted to their having a common object to commit an offence and therefore constituted them into an unlawful assembly.
The injuries they caused to the other party are caused in furtherance of their common object.
There is then no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly in circumstances which makes section 149, Indian Penal Code, applicable to them.
Even if the finding that there were more than five persons in the appellant 's party be wrong, we are of opinion that the facts found that the appellant and his companions who were convicted had gone from the village armed and determined to fight, amply justified the conclusion that they had the common intention to attack the other party and to cause such injuries which may result in death.
Darshan had two incised wounds and one punctured wound.
Nand Lal (1) Criminal Appeal No. 29 of 1950, decided on December 15, 1960.
401 had two incised wounds and one punctured wound and two abrasions.
The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not have formed a common intention with the others, when he went with them armed.
The conviction under section 302 and section 307 read with section 149 can be converted into one under section 302 and section 307 read with section 34, Indian Penal Code.
We therefore see no force in this appeal and accordingly dismiss it.
Appeal dismissed.

summary/full:
The appellant was tried along with two others under sections 302 and 307 read with section 149 of the Indian Penal Code.
The prosecution case against them was that they along with ten others had taken part in a free fight resulting in the death of one belonging to the other side.
The Sessions judge held that the accused were accompanied by nine or ten others but that it was not proved who they were.
He, therefore, gave them the benefit of the doubt and acquitted them.
The High Court on appeal affirmed that decision.
It was urged on behalf of the appellant in this Court that (1) the offence of unlawful assembly had not been made out and (2) that in a free fight each participant is liable for his own act and the conviction of the appellant, who had caused no injury to the deceased, was untenable under sections 302 and 307 of the Indian Penal Code.
Held, that the contentions must fail.
It is only when the number of the alleged assailants is definite and all of them are named and the number of persons proved to have taken part in the incident is less than five that it can be said that there was no unlawful assembly.
The acquittal of the remaining named persons must mean that they were not in the incident.
The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there can be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognising them.
Since this was not the position in the instant case, it could not be said that the courts below were wrong in holding that there was unlawful assembly.
Dalip Singh vs State of Punjab, ; , referred to.
It is not correct to say that in a premeditated free fight each is liable for his individual act.
Where the accused party prepare for a free fight and can, therefore, have no right of private defence, their intention to fight and cause injuries to the other party amounts to a common object so as to constitute unlawful assembly.
Gore Lal vs State of U. P., Cr. A. No. 129 of 1959 dated 15 12 1960, referred to.
396 Even assuming that in the instant case the finding that there were more than five persons in the appeLlant 's party was wrong, the conviction of the appellant would be maintainable under section 302 and section 307 read with section 34 of the Indian Penal Code.


judgement:
minal Appeal No. 162 of 1959.
Appeal by special leave from the judgment and order dated January 13, 1959, of the Rajasthan High Court in D. B. Criminal Revision No. 47 of 1957.
267 N. C. Chatterjee, J. L. Datta and C. P. Lal, for the appellant.
Mukat Behari Lal Bhargava and Naunit Lal, for respondent No.2.
April 24.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
On June 13,1950, the Municipal Committee, Ajmer, respondent 2, issued a notice against the appellant, the Durgah Committee, Ajmer, under section 153 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) (hereafter called the Regulation) calling upon it to carry out certain repairs in the Jhalra Wall which was in a dilapidated condition.
The appellant did not comply with the said requisition and so respondent 2 served another notice on the appellant under section 220 of the Regulation inti mating to it that the required repairs would be carried out at the expense of respondent 2 and that the cost incurred by it would be recovered from the appellant.
This notice was served on July 3, 1950.
Even so the appellant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which amounted to Rs. 17,414.
Under section 222(4) of the Regulation this sum became recoverable from the appellant as a tax.
A notice of demand in that behalf was issued on the appellant on April 1, 1952, and in pursuance of the said notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for the recovery of the said amount under section 234 of the Regulation.
In the proceedings before the learned Magistrate the appellant raised certain pleas.
These pleas were rejected and an order was passed calling upon the appellant to pay the dues in question by August 30, 1956.
Against this order the appellant preferred a criminal revision application in the Court of the Sessions Judge, Ajmer.
The learned Sessions Judge considered the contentions raised by the appellant and held that the view taken by the Magistrate cannot be said to be incorrect and so there was no ground to interfere in revision.
Feeling aggrieved by the dismissal of its 268 revision application the appellant moved the High Court of Judicature for Rajasthan in its revisional jurisdiction.
Before the High Court, on behalf of respondent 1, the State of Rajasthan, as well as respondent 2, a preliminary objection was raised that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent 2 's application made under section 234 ",as not an inferior criminal court under section 439 of the Code of Criminal Procedure.
This preliminary objection was upheld by the High Court and the criminal revision application dismissed on that ground.
It is against this order that the appellant has come to this Court by special leave; and the short question which the appeal raises for our decision is whether the Magistrate who entertained the application made before him by respondent 2 under section 234 was an inferior criminal court under section 439 of the Code of Criminal Procedure.
Before dealing with this point it is relevant to refer to the scheme of the material provisions of the Regulation.
Section 153 confers power on the Municipality to order removal or repair of buildings which may be found in a dangerous state.
Under this section the Committee may by notice require the owner of the building, wall or structure to remove the same forthwith or cause such repairs as the Committee may consider necessary for the public safety.
This section also empowers the Committee to take at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger.
If the owner on whom a notice is served under section 153 complies with the requisition nothing more need be done.
If, however, the owner does not comply with the requisition served on him the Committee is empowered to cause the repairs to be made after six hours notice to the owner under section 220.
This section provides that whenever the terms of any notice issued under this Regulation have not been complied with the Committee may, after six hours ' notice, cause the act to be done by its officers.
As a corollary to this provision, and indeed as its consequence, section 222 empowers the Committee to recover the cost of the work done 269 under section 220.
Section 222(1) authorises the Committee to recover the cost of the work from the person in default.
Sub sections (2) and (3) of section 222 then deal with the question as to which person should be held to be in default, the owner or the occupier; with that question we are not concerned in the present appeal.
Sub section (4) of section 222 provides that where any money recoverable by the Committee under this section is payable by the owner of the property, it shall be charged thereon and shall be recoverable as if it were a tax levied by the Committee on the property.
By sub section (5) it is provided that the contract between the owner and the occupier is not affected by this section.
It is under section 222(4) that a demand notice was served on the appellant by respondent 2.
That takes us to section 234 which provides for the machinery of recovery of municipal claims.
This section provides, inter alia, that any tax claimable or recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be recovered on application to a Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate 's jurisdiction belonging to such person.
The proviso to this section prescribes that nothing in this section shall prevent the Committee at its discretion from suing for the amount payable in any competent Civil Court.
It would thus be seen that the object of making an application to the Magistrate is to obtain an order from the Magistrate direct ing the recovery of the tax claimable or recoverable by distress and sale of any movable property belonging to the defaulter.
It is under this section that tile Magistrate was moved by respondent 2.
That in brief is the scheme of the material provisions of the Regulation.
The main argument which Mt .
Chatterjee, for the appellant, has pressed before us is that in determining the nature of the proceedings under section 234 and the character of the Magistrate who entertains an application made under the said section, it is important to 35 270 bear in mind that a person in the position of the appellant has no other opportunity to challenge the validity of the notice as well as the validity of the claim made against him by the Committee.
The argument is that it would be open to the owner to contend that the notice issued under section 153 is invalid or frivolous.
It would also be open to him to contend that the amount sought to be recovered from him is excessive and that even if the repairs were carried out they could not have cost as much, and since the scheme of the Regulation shows that it provides no opportunity to the owner to raise those contentions except in proceedings under section 234 the nature of the proceedings and the character of the Magistrate who entertains them should be liberally construed.
The proceedings should be deemed to be judicial proceedings and the Magistrate should be held to be an inferior criminal court when he entertains the said proceedings.
If the assumption on which the argument proceeds that the Regulation provides no other opportunity to the owner to challenge the notice or to question the amount claimed from him were sound then there would be some force in the contention that section 234 should be liberally construed in favour of the appellant.
But is that assumption right? The answer to this question would depend upon the examination of three relevant provisions of the Regulation; they are sections 222(4), 93 and 226.
We have already seen that section 222(4) provides that any money recoverable by the Committee under section 222(1) shall be recovered as if it were a tax levied by the Committee on the property and shall be charged thereon.
Section 93 provides for appeals against taxation.
Section 93(1) lays down, inter alia, that an appeal against the assessment or levy of any tax under this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by the State Government in this behalf.
The remaining five subsections of section 93 prescribe the manner in which the appeal should be tried and disposed of.
If the amount recoverable by respondent 2 from the appellant is made recoverable as if it were 271 a tax levied by the Committee, then against the levy of such a tax an appeal would be competent under section 93(1).
Mr. Chatterjee argues that section 93(1) provides for an appeal against the levy of a tax, and he draws a distinction between the amount made recoverable as if it were a tax and the amount recoverable as a tax.
His contention is that the amount which is recoverable under section 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem.s.
93(1).
We are not impressed by this argument.
If by the fiction introduced by section 222(4) the amount in question is to be deemed as if it were a tax it is obvious that full effect must be given to this legal fiction; and in consequence just as a result of the said section the recovery procedure prescribed by section 234 becomes available to the Committee so would the right of making an appeal prescribed by section 93(1) be available to the appellant.
The consequence of the fiction inevitably is that the amount in question can be recovered as a tax and the right to challenge the levy of the tax accrues to the appellant.
This position is made perfectly clear by section 226.
This section provides, inter alia, that where any order of a kind referred to in section 222 is subject to appeal, and an appeal has been instituted against it, all proceedings to enforce such order shall be suspended pending the decision of the appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an offence.
It is obvious that this section postulates that an order passed under section 222 is appealable and it provides that if an appeal is made against such an order further proceedings would be stayed.
It is common ground that there is no other provision in the Regulation providing for an appeal against an order made under section 222(1); and so inevitably we go back to section 93 which provides for an appeal against the levy of a tax.
It would be idle to contend that though section 226 assumes that an appeal lies against an order made under section 222(1) the Legislature has for.
gotten to provide for such an appeal.
Therefore, in our opinion, there can be no doubt that reading 272 sections 222, 93 and 226 together the conclusion is inescapable that an appeal lies under section 93(1) against the demand made by the Committee on the owner of the property under section 222(1).
If that be so, the main, if not the sole argument, urged in support of the liberal construction of section 234 turns out to be fallacious.
ow, looking at section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings.
All questions which may legiti mately be raised against the validity of the notice served under section 153 or against the validity of the claim made by the Committee under section 222 can and ought to be raised in an appeal under section 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raised in proceedings under section 234.
That is why the nature of the enquiry contemplated by section 234 is very limited and it prima facie partakes of the character 'of a ministerial enquiry rather than judicial enquiry.
In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court.
The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter.
If at all, this would at best be a proceeding of a civil nature and not criminal.
That is why, we think, whatever may be the character of the proceedings, whether it is purely ministerial or judicial or quasi judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Proce dure.
He cannot therefore be regarded as an inferior criminal court.
That is the view taken by the High Court and we see no reason to differ from it.
In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent Civil Court contemplated by the proviso.
Prima facie such proceedings can be no more than execution proceedings.
273 Mr. Chatterjee also attempted to argue that the proceedings under section 234 taken against the appellant by respondent 2 were incompetent because a demand, has not been made by respondent 2 on the appellant in the manner prescribed by rule as required by section 234.
It does appear that rules have not been framed under the Regulation and so no form has been prescribed for making a demand under section 222(1).
Therefore the argument is that unless the rules are framed and the form of notice is prescribed for making a demand under section 222(1) no demand can be said to have been made in the manner prescribed by rules and so an application cannot be made under section 234.
There are two obvious answers to this contention.
The first answer is that if the revisional application made by the appellant before the High Court was incompetent this question could not have been urged before the High Court because it was part of the merits of the case and so cannot be agitated before us either.
As soon as it is held that the Magistrate was not an inferior criminal court the revisional application filed by the appellant before the High Court must be deemed to be incompetent and rejected on that preliminary ground alone.
Besides, on the merits we see no substance in the argument.
If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean.
that the statutory power conferred on the Committee by section 222(1) to make a demand is unenforceable.
As a result of the notice served by respondent 2 against the appellant respondent 2 was entitled to make the necessary repairs at its cost and make a demand for reimbursement of the said cost.
That is the plain effect of the relevant provisions of the Regulation; and so, an amount which was claimable by virtue of section 222(1) does not cease to be claimable just because rules have not been framed prescribing the form for making the said demand.
In our opinion, therefore, the contention that the application made under section 234 was incompetent must be rejected.
It now remains to consider some decisions to which 274 our attention was drawn.
In Crown through Municipal Committee, Ajmer vs Amba Lal (1), the Judicial Commissioner Mr. Norman held that a Magistrate entertaining an application under section 234 of the Regulation is an inferior criminal court.
The only reason given in sup port of this view appears to be that the Magistrate before whom an application under the said section is made is appointed under the Code of Criminal Procedure, and so he is a criminal court although he is not dealing with crime.
That is why it was held that he had jurisdiction to decide whether the conditions under which the Municipality can resort to the Magistrate are fulfilled.
Having come to this conclusion the learned Judicial Commissioner held that a revision against the Magistrate 's order was competent.
In our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under section 234 and the status of the Magistrate who entertains them.
In Re Dinbai Jijibhai Khambatta (2) the Bombay High Court held that the order made, by a Magistrate under section 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) can be revised by the High Court under section 435 of the Code of Criminal Procedure.
This decision was based on the ground that the former part of section 161 was purely judicial and it was held that the latter part of the said section though not clearly judicial should be deemed to partake of the same character as the former part.
Thus the decision turned upon the nature of the provisions contained in section 161(2).
In V. B. D 'Monte vs Bandra Borough Municipality(1) a Full Bench of the Bombay High Court, while dealing with a corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely, section 110, has held that in exercising its revisional jurisdiction under section 110 the High Court is exercising a special jurisdiction conferred upon it by the said section and not the jurisdiction conferred under section 435 of the Code of Criminal Procedure.
According to this (1) Ajmer Merwara Law journal, Vol.
V, P. 92.
(2) Bom.
(3) I.L.R. 275 decision the matter coming before the High Court in such revision is of civil nature and so the revisional application would lie to the High Court on its civil side and not on its criminal side.
It is significant that the decision in the case of Emperor vs Devappa Ramappa (1) which took a contrary view was not followed.
In Re Dalsukhram Hurgovandas (2) the Bombay High Court had occasion to consider the nature of the proceedings contemplated by section 86 of the Bombay District Municipal Act III of 1901.
Under the said section a Magistrate is empowered to hear an appeal specified in the said section; and it was held that in hearing the said appeals the Magistrate is merely an appellate authority having jurisdiction to deal with questions of civil liability.
He is therefore not an inferior criminal court and as such his orders are not subject to the revisional jurisdiction of the High Court under section 435 of the Code of Criminal Procedure.
The Madhya Bharat High Court had occasion to consider a similar question under section 153 of the Gwalior Municipal Act (1993 Smt.) in Municipal Committee, Lashkar vs Shahabuddin (3).
Under the said section an application can be made by the Municipality for recovering the cost of the work from the person in default.
It was held that the order passed in the said proceedings cannot be revised by the High Court under section 435 because the order is an administrative order and that there was no doubt that the Magistrate was not an inferior criminal court.
In Mithan Musammat vs The Municipal Board of Agra & Anr., (4) the Allahabad High Court has held that a Magistrate passing an order under section 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of section 435 of the Code of Criminal Procedure.
To the same effect is the decision of the Allahabad High Court in Madho Ram vs Rex (1).
We have referred to these decisions only to illustrate that in dealing with similar provisions under the (1) (3) A.I.R. (39) 1952 M.B. 48.
(2) (4) I.L.R. (1956) 2 All.
(5) I.L.R. (1950) All.
276 municipal law different High Courts seem to have taken the view that Magistrates entertaining recovery proceedings under the appropriate statutory provisions are not inferior criminal courts under the Code of Criminal Procedure.
Though we have referred to these decisions we wish to make it clear that we should not be taken to have expressed any opinion about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them.
The result is the appeal fails and is dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On the failure of the appellant to carry out the requisition by the Municipality to execute certain repairs to its property the Municipality carried out the said repairs after giving due notice, the cost of which became recoverable from the appellant as tax under section 222(4) of the Ajmer Merwara Municipalities Regulation.
The Municipality applied under section 234 Of the Regulation to the Additional Tehsildar and Magistrate, II Class, Ajmer for the recovery of the amount of cost incurred by them, and the magistrate passed an order calling upon the appellant to pay the dues.
Against this order the appellant preferred a criminal revision application in the court of Sessions judge which was rejected as there was no ground to interfere in revision.
The appellant then moved the High Court in its revisional jurisdiction wherein the respondents raised preliminary objection that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent No. 2 Municipal Committee 's application under section 234 was not an inferior criminal court under section 439 of the Criminal Procedure 266 Code, the said objection was upheld and the criminal revision application dismissed on that ground.
The question was whether the Magistrate who entertained the application made before him by the Municipality under section 234 of the Regulation was an inferior criminal court under section 439 Of the Code of Criminal Procedure, and also whether an application under section 234 could be made unless the rules were framed and the forms of the notice for making a demand under section 222 were prescribed.
Held, that the Proceedings initiated before a Magistrate under section 234 of the Ajmer Merwara Municipalities Regulation were merely in the nature of recovery proceedings and no other questions could be raised in the said proceedings.
The nature of the enquiry contemplated by section 234 was very limited; it prima facie partook of the character of a ministerial enquiry rather than judicial enquiry and at the best could be treated as a proceeding of a civil nature but not a criminal proceeding and the Magistrate who entertained the application was not an inferior criminal court.
Whatever may be the character of the proceedings, whether it was purely ministerial or judicial or quasi judicial, the Magistrate who entertained the application and held the enquiry did so because he was designated in that behalf and so he must be treated as a persona designate and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure.
He could not therefore be regarded as an inferior criminal court.
Held, further, that if the rules were not prescribed as required by section 234 of the Regulation then all that could be said was that there was no form prescribed for issuing a demand notice, that did not mean that the statutory power conferred on the committee by section 222(1) to make a demand was unenforceable and an amount which was claimable by virtue of section 222(1) did not cease to be claimable just because rules had not been framed prescribing the form for making the said demand.
Crown through Municipal Committee, Ajmer vs Amba Lal, Ajmer Merwara Law journal, Vol.
V, 92, Re Dinbai Jijibhai Khambatta, Bom. 864, V. B. D 'Monte vs Bandra Borough Municipality, I.L.R. , Emperor vs Devappa Ramappa, , Re Dalsukhram Hurgovandas, and Municipal Committee, Lashkay vs Shahbuddin, A.I.R. 1952 M. B. 48, referred to.


judgement:
160 of 1952.
Contempt of Court proceedings against the Editor, Printer and Publisher of the "Times of India" (Daily), Bombay and Delhi, for publishing a leading article in their paper of October 30, 1952, entitled A Disturbing Decision ".
M. C. Setalvad, Attorney General for India (P. A. Mehta, with him) (amicus curiae).
N. C. Chatterjee (Nur ud Din Ahmad and A. E. Dutt, with him) for the contemners.
December 12.
The Order of the Court was delivered by MAHAJAN J.
In its issue of the 30th October, 1952, the " Times of India", a daily newspaper published in Bombay and New Delhi, a leading article was published under the heading " A disturbing decision ".
The burden of it was that in a singularly oblique and infelicitous manner the Supreme Court had by a majority decision tolled the knell of the much maligned dual system prevailing in the Calcutta and Bombay High Courts by holding that the 217 right to practise in any High Court conferred on advocates of the Supreme Court, made the rules in force in those High Courts requiring advocates appearing on the Original Side to be instructed by attorneys inapplicable to them.
The article concluded with the following passage: " The fact of the matter appears to be that in the higher legal latitudes at New Delhi and elsewhere the dual system is regarded as obsolete and anomalous.
There is a tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the judges had under consideration a proposal for abolishing the dual system.
Abolish it by 'all means if the system has outgrown its usefulness and is found incongruous in the new setting of a democratic Constitution.
But to achieve a dubious or even a laudable purpose by straining the law is hardly edifying.
Politics and policies have no place in the pure region of the law; and courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment which is the glory of law and the guarantee of justice." No objection could have been taken to the article had it merely preached to the courts of law the sermon of divine detachment.
But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court.
The article in question was thus a gross contempt of court.
It is obvious that if an impression is created in the minds of the public that the judges in the highest court in the land 'act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater , mischief than that can possibly be imagined.
It was for this reason that the rule was issued against the respondents.
218 We are happy to find that the Editor, Printer and the Publisher of the paper in their respective affidavits filed in these proceedings have frankly stated that they now realize that in the offending article they had exceeded the limits of legitimate criticism in that words or expressions which can be construed as casting reflection upon the court and constituting Contempt had crept into it.
They have expressed sincere regret and have tendered unreserved and unqualified apology for this first lapse of theirs.
We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over sensitive to public criticism; but *hen there is danger of grave mischief being done in the matter of administration of justice,.
the animadversion cannot be ignored and viewed with placid equanimity.
In this 'matter we are of the same opinion as was expressed by their Lordships of the Privy Council in Andre Paul vs Attorney General of Trinidad (1), Where they observed as follows: "The path of criticism is A public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune.
Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
" In view of the unconditional apology tendered by the respondents and the undertaking given by them to give wide publicity to their regret, we have decided to drop further proceedings and we accept the apology and discharge the rule without any order as to costs.
Rule discharged.
Agent for the contemners: Rajinder Narain.
(1) A.I.R. 1936 P.C. 141.

summary/full:
It is not the practice of the Supreme Court to issue a rule for contempt of Court except in very grave and serious cases and it is never over sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of justice, the animadversion will not be ignored and viewed with placid equanimity.
A leading article in the " Times of India " on the judgment of the Supreme Court in Aswini Kumar Ghose vs Arabinda Bose and Another ([1953] S.C.R. 1) contained the following statements: "the fact of the matter is that in the higher legal latitudes in Delhi the dual system was regarded as obsolete and anomalous. .
There is a, tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the Judges had under consideration a proposal for abolishing the dual system. .
To achieve a dubious or even a laudable purpose by straining the law is hardly 216 edifying.
Politics and policies have no place in the pure region of the law and Courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment. . " In proceedings for contempt of Court: Held, that if the articles had merely preached to Courts of law a sermon of divine detachment no objection could be taken, but in attributing improper motives to the judges, the article not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of the Court and it was therefore a gross contempt of court.
If an impression is created in the minds of the public that the judges of the highest court in the land act on extraneous considerations in deciding cases the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.
[In view of the unconditional apology tendered by the Editor, Printer and Publisher and the undertaking given by them to give wide publicity to their regret, the proceedings were dropped.] Andrew Paul vs Attorney General of Trinidad (A.I.R. referred to.


judgement:
Appeals Nos. 244 and 245 of 1958.
Appeal by special leave from the judgment and decree dated February 19, 1953, of the Madras High Court in Second Appeals Nos.
2120 and 2121 of 1947.
A. V. Viswanatha Sastri and M. section K. Iyengar, for the appellants.
K. N. Rajagopala Sastri and M. section K. Sastri, for respondent No. 1A. section V. Venugopalachari and R. Gopalakrishnan, for respondent No. 8A in Appeal No. 244 and respondent No. 7A in Appeal No. 245.
April 27.
The Judgment of the Court was delivered by SUBBA RAO, J.
These two appeals are directed against the judgment of the High Court of Madras dated February 19, 1953, setting aside that of the District Judge, Tirunelveli, and restoring that of the Subordinate Judge, Tuticorin, in O. section Nos. 45 and 46 511 of 1945 on his file, and they raise the question of maintainability of a suit in regard to honors and perquisites in the temple of Athinathalwar in Alwar Tirunagari.
At Alwar Tirunagari in Tirunelveli District there is a famous temple called Athinathalwar temple.
The presiding deity in the temple is Lord Vishnu.
Its origin is lost in antiquity.
In 'the 10th and 11th centuries Vaishnavite saints, called Alwars and Acharyas, who were ardent devotees of Lord Vishnu, worshiped at the temple and sang in praise of the Lord.
As time passed by, 20 smaller temples were erected to commemorate the lives of Alwar8 and Acharya8.
Within the compound of the main shrine, there are three minor shrines of Nachiar, Nammalwar, and Garuda; the rest of the smaller shrines are outside the premises of the main temple.
Each of the said temples has its own manager, archakas and separate endowments; but, presumably because of the fact that the Alwar8 and Acharyas, whose idols are installed in the smaller temples, were originally devotees of Sri Athinathalwar, an interesting and novel practice of mutual and regular exchange of visits between the idols in the smaller shrines and the idol of Athinathalwar has grown over the years.
During certain specified occasions in the year, the idols in the minor temples are brought to the main temple for worship; so too, on specific occasions the idol of Athinathalwar is also taken to the minor shrines; such visits being reminiscent of the days when the Alwars and Acharya8 worshiped in the temple of Athinathalwar.
Sri Ramanujacharya was one of the greatest of the devotees of Lord Vishnu and is well known throughout this vast country as the progenitor of an important school of Indian philosophy.
He died in the year 1127 A. D.
In the 13th century a shrine was built in his honour and his idol was installed therein.
Sri Ramanujacharya is also known as Udayavar or Emberumanar and the shrine built in his dedication is known as Emberumanar temple.
The manager and archaka of the said temple is known as Emberumanar 512 Jeer.
Emberumanar temple also is outside the precincts of the temple of Athinathalwar.
There are also mutual visits between the idol of Emberumanar and the idol of Athinathalwar to each other 's temple.
The present Emberumanar Jeer is the plaintiff in the suits out of which the appeals have arisen.
There is a mutt called the Vanamamalai Mutt in the said District and the head of the mutt is known as Vanamamalai Jeer.
He is a sanyasi held in reverence by Vaishnavites of South India.
He is the first defendant.
The heads of the Ahobilam Mutt and the Tirukkurungudi Mutt are the second and third defendants respectively.
The fourth defendant is the Executive Officer of the temple of Sri Athinathalwar and he was appointed by the Hindu Religious Endowments Board, Madras.
The records disclose that, at any rate from the middle of the last century, there have been disputes between the various Jeers and others as regards the order of priority in which certain honours have to be distributed among the said Jeers when they attend the temple of Sri Athinathalwar for worship.
In the ghoshties (group of worshipers in front of the deity) both on ordinary and special days the said Jeers are shown honours befitting their rank.
The honours consist of distribution of theertham, thulasi, satari and viniyogam, and a few more similar items.
Each of the said Jeers is allotted a particular place in the ghoshti and a certain order of precedence is observed inter se between them.
This order of precedence in the matter of receiving honours has become an unending source of bickering between the religious heads; with the result, the Madras Hindu Religious Endow ments Board, constituted under Act 1 of 1923, with jurisdiction to administer the endowments in the Madras State, had to interfere and settle the disputes inter se between the various Jeers.
On May 12, 1927, the said Board fixed the order of precedence for honours between the various Jeers to be observed both on ordinary and special days.
By the said order the Board recognized the Emberumanar Jeer 's right 513 to the honours and perquisites in precedence over the other Jeers on all the days other than Vaikasi festival days, except the 7th day, and as regards the other days of the festival, namely, 1st to 6th and 8th to 10th days, the Board directed that the other Jeers should be shown on the respective days both the ordinary and special honours in precedence over the rest of the Jeers, including the Emberumanar Jeer.
Not satisfied with the said order, the Emberumanar Jeer filed O. section No. 320 of 1933 in the Court of the District Munsif, Tirunelveli, which was later transferred to the Court of the Subordinate Judge, Tuticorin, as O. section No. 45 of 1945, against the other Jeers and the Hindu Religious Endowments Board, for the declara tion of his right to the first theertham and other per quisites in precedence over all the others in the ghoshties of Sri Athinathalwar temple on the ground that he was entitled to them as the office holder of the, temple of Emberumanar.
Subsequent to the filing of the suit, the Board, by its order dated May 15, 1935, altered the order of precedence giving the Vanamamalai Jeer precedence over the Emberumanar Jeer; and this led to the Emberumanar Jeer filing another suit O. section No. 201 of 1941 in the Court of the District Munsif, Srivaikuntam, for a declaration of his right to the first theertham, etc., in precedence over all the others.
This suit was later transferred to the Court of the Subordinate Judge, Tuticorin as O. section No. 46 of 1945, to be tried along with O. section No. 45 of 1945.
To the suits the Emberumanar Jeer, the Vanamamalai Jeer, the Ahobilam Jeer and the Tirukkurungudi Jeer, and the Executive Officer of the Hindu Religious Endowments Board were made parties.
These suits have had a chequered career.
But we shall briefly refer only to those stages of the long drawn litigation which have some bearing on the questions raised in the present appeals.
O. section No. 320 of 1933 was finally numbered as O. section No. 66 of 1936 and was disposed of on March 25, 1941, by the District Munsif, Tirunelveli.
The learned District Munsif dismissed the suit on the ground that it was not maintainable as the plaintiff had no legal right in respect 514 of which he could seek relief in a civil court.
On appeal, the learned Subordinate Judge, Tirunelveli, came to the conclusion that, as the plaintiff had come to court to establish his right of precedence to receive the theertham, etc., as forming part of the emoluments of his office of aradanaikar in the suit temple, the suit could not be dismissed on the preliminary ground that it was barked under section 9 of the Code of Civil Procedure; on that basis, he set aside the decree of the District Munsif and remanded the case for trial on other issues arising in the case.
Both the parties preferred appeals to the High Court of Madras and they were numbered as C. M. As.
Nos. 1 and 155 of 1943; on January 31,1945, Chandrasekara Aiyar, J., dismissed both the appeals.
The learned Judge propounded alternative theories, and he expressed himself thus: "Of course, before he (plaintiff) can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The learned Judge agreed with the Subordinate Judge that the suit could not be dismissed in limine without deciding the said question of fact.
On remand, the learned Subordinate Judge, Tuticorin, to whom the said suit and the connected suit, being renumbered O. section Nos. 45 and 46 of 1945, were remanded came to the conclusion that the Emberumanar temple was a sub shrine attached to the main temple of Sri Athina thalwar, and that the plaintiff, who was the aradanaikar of the sub shrine, would be virtually an office holder in the main temple.
He further hold that the privilege of first theertham was attached to the said office as part of its remuneration and, therefore, the suit was one of civil nature falling under section 9 of the Code of Civil Procedure; in that view, having held on the merits that the plaintiff had established his right of precedence, he decreed both the suits.
As many as six appeals were preferred against the decrees in the two suits by the aggrieved parties to the District Court; and the learned District Judge in a common judgment disposed of them on January 23, 1947.
515 The learned District Judge, on a review of the evidence in the case, held that the institutions were not interdependent or intimately connected in such a way that an office holder of the Emberumanar temple was necessarily an office holder of the Athiiiathalwar temple.
On that finding, he held that the plaintiff was not an office holder of the Athinathalwar temple and, therefore, he was not entitled to file a suit with regard to his rights of precedence in being given the theertham, etc.
In the result he allowed the appeals and dismissed both the suits with costs throughout.
Against the said judgment, the plaintiff preferred second appeals to the High Court of Judicature at Madras, being Second Appeals Nos. 2120 and 2121 of 1947.
They were heard by Krishnaswami Nayudu, J., who on a reconsideration of the evidence disagreed with the finding arrived at by the learned District Judge and accepted the finding given by the learned Subordinate Judge.
Not only the learned Judge accepted the finding of the learned Subordinate Judge that the plaintiff as the aradanaikar or the archaka of the sub shrine was virtually an office holder in the main temple, he also went further and held that, as one of the theerthakars, the plaintiff could be considered to be the holder of the office of arulipad in the main temple.
In the result the learned Judge set aside the decree of the District Judge and restored the decrees of the learned Subordinate Judge.
As leave to appeal to a division bench was not given by the learned Judge, the first defendant, i.e., the Vanamamalai Jeer, in the suits, by special leave, has preferred these appeals against the judgment of the High Court.
Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, raised before us the following points: (1) A suit for a declaration that the plaintiff is entitled to honours in a temple would not lie unless he establishes that he holds an office in the said temple and that the said honours form part of the perquisites attached to the said office, and that, as in the present case the plaintiff claimed that he was an aradanaikar and trustee of only the Emberumanar temple and as such entitled to honours in Athinathalwar temple, 516 the suits should have been dismissed in limine on the ground that the plaints did not disclose any claim of civil nature falling under section 9 of the Code of Civil Procedure.
(2) The Courts were not justified in allowing the plaintiff to make out a now case not disclosed in the plaints, namely that the Emberumanar temple was a subordinate shrine of the Athi nathalwar temple and, therefore, the plaintiff was the office holder of the latter temple; assuming that there was justification for the courts in allowing the plaintiff to develop a new case at a very late stage of the proceedings, there was a clear finding of the District Court based on the evidence adduced in the case that the Emberumanar temple was not a sub shrine of the Athinathalwar temple, and the High Court had no jurisdiction to set aside that finding in second appeals.
Mr. Rajagopala Sastri, learned counsel for the respondents, contended that the plaintiff 's alternative case was not really a new one, but all the relevant facts in support of that case were disclosed in the plaints, and that the finding of the District Judge was not a finding of fact but was either a legal inference from proved facts or a mixed question of fact and law.
He argued that the contention of learned counsel for the appellant ignores the religious background and ideas of the class of persons with which we are now concerned, and that, if the matter is approached from a correct perspective, as the High Court did, it would be realized that there was such an association between the two temples as it could be said that one is subordinate to the other leading to the only irresistible inference that the plaintiff, the office holder of the sub shrine, could claim honours in the main temple of which the sub shrine is only a part in the larger sense.
At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in civil courts in respect of honours in temples.
Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain.
It can entertain every suit of a civil nature excepting suits of which its cognizance is 517 either expressly or impliedly barred.
As a corollary to this, it follows that a court cannot entertain a suit which is not of a civil nature.
Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties.
But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies.
It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies.
It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject matter of a civil suit.
Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a tem ple cannot be placed on a higher footing than the religious rights or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies.
Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple.
One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self importance or claim their right to preferential treatment.
But a century of case law in that part of the country has recognized certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in criminal and civil courts.
This Court, therefore, does not propose to reconsider the 66 518 question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position.
The earliest decision is that in Striman Sadagopa vs Kristna Tatachariyar (1).
There, the plaintiff was the gurukkal of Sri Ahobilam Mutt and he sued the trustees of Sri Devarajaswami temple at Conjeevaram for damages for injuries done to him by withholding from him certain honours and emoluments and also sought to have his right to such honours and emoluments established for the future.
Two Schedules were attached to that plaint and they showed inter alia that what was claimed as honours were such as garlands, cocoanuts, prasadams and other paraphernalia attending the ceremonial recitation when the gurukkal visited the temple.
Scotland, C.J., formulated the legal position thus: ". . . these clearly show that every one of the matters in respect of which the suit is brought is purely a matter of religious and sacred observance in connection with the worship and ceremonials at the pagoda, and is claimed by the plaintiff as a matter of devotional respect and display due to his priestly rank or as a votive offering made to him whilst passing in procession through the temples, and when brought to the presence of the principal idol.
" Then the learned Chief Justice proceeded to state: "He (the plaintiff) is not officially connected in any way with the management or control of the pagoda, or its property or funds; and the alleged dues of his office have no doubt been owing to the great reverence at one time entertained for his sacredotal rank in the Hindu religion, and the importance from a religious point of view of his mere presence at the pagoda." He concluded thus: "Such honours and emoluments cannot in any respect be considered as remuneration for duties or ministrations performed by the plaintiff in the secular affairs or religious services of the pagoda." (1) ,3o6.
519 This decision, which has stood the test of time, clearly lays down that a suit to enforce the rights of persons holding offices connected with the management and regulation of temples and for honours and emoluments connected therewith would lie in a civil court; but a suit by a plaintiff, who does not hold an office in the temple, claiming honours customarily shown to him as a matter of devotional respect and display due to his rank is not of a civil nature.
The principle laid down in this case and restated in subsequent cases has been applied by a division bench of the Madras High Court to a claim for first theertham, etc., in Sri Rungachariar vs Rungasami Buttachar (1).
That decision was given in an appeal arising out of a suit for a declaration that the plaintiffs had a hereditary miras right to the offices of Sthalathar, Kutumba First Theertham, Muntrapushpam, Vedaparayanam and Adyapakam from times immemorial in the temple of Sri Parimala Ranga nathaswami at Tiruvilandur, and, by virtue of such right, were entitled to a fourth share of the honours and emoluments due to their offices as detailed in schedule A of the plaint.
The learned Judges, on the evidence, came to the following conclusion: ". . the plaintiffs as hereditary Sthalathars are bound to perform, besides the duties of superintendence attached to their office of Sthalathar, the ceremonial duties of vedaparayanam, etc., and are entitled to receive remuneration for the performance of those duties.
Included in this remuneration is the privilege of first theertham ' from which the plaintiffs are called 'theerthakars".
Then the learned Judges proceeded to observe: "Taking the findings to be, as we do, that the privilege of the first theertham is attached to the hereditary office of the plaintiffs as a part of the remuneration of the office, the Court must, to protect the plaintiffs in the enjoyment of the office, declare what is the honour to which they are entitled.
" This decision recognizes that a suit for a declaration of a plaintiff 's right to an office and for the honours, (1) Mad.291, 208.520 such as first theertham, etc., as part of the remuneration will lie in a civil court.
Athan Sadagopachariar Swamigal vs Elayavalli Sri nivasachariar (1) is a decision relating to honours in Athinathalwar temple itself.
The plaintiff in that case was a trustee of a temple called Pillalokacharyar 's temple.
The principal object of the suit was to prevent the first defendant from claiming to be one of the Adhyapaka Mirasidars in the temple of Nammalwar and Adinathar in Alwar Tirunagari.
It was contended that the first defendant was one of the seven Adhyapaka Mirasidars in the temple and his rank in the ghoshti was just above the plaintiffs.
Sadasiva Aiyar, J., posed the question raised and gave his answer thereto thus: "The legal question I wish to say something about is whether a suit for the honours mentioned in the second item of the 2nd Schedule to the plaint is maintainable in a Civil Court.
It is clear that if those honours are not attached to any office in the temple, no such suit could lie.
The first branch of the question, therefore, is a question of fact, viz., whether these honours are attached to the Adhyapaka Miras office in the temple."
After considering the evidence and other relevant decisions, the learned Judge came to the following conclusion: "I see no difficulty whatever in holding on the evidence in this case that the plaintiffs and the 1st defendant and the 5 other Adhyapaka Mirasidars get their rank in the Goshti and their rank in the distributions of prasadams not because those honours are part of the Adhyapaka Miras office to which they are entitled but because of their being Acharya Purushas or of their families having been very respectable religious families for long or because the mere respect due to their offices has been considered as making them fit in a social, and religious point of view to obtain such honours.
" That would be enough to dispose of that appeal, but the learned Judge proceeded to make certain observations even on the assumption that the said honours (1) , 299, 300, 301. 521 had been attached to emoluments so far as the 7 Adhyapaka Mirasidars were concerned.
The observations of the learned Judge, though obiter, deserve to be quoted not only because of his vast experience in matters of Hindu religion but also because of his well known reformative zeal to remove the cobwebs that shroded the Hindu religion by superstitious ignorance and perverted imposition.
The learned Judge says: ". . the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments, in other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and dancing girls before a high official or any other person and gives him prasadams, etc., he does it in order to show 'honours ' to that person and when he does it without prejudice to the conduct of the rituals and ceremonies in the temple, he always says that the God of the temple Himself condescends to treat the official or other persons as God 's guest and shows him these 'honours '.
Such persons to whom respect is shown cannot in my opinion claim such 'honours ' as a legal right, but as a favour shown by the temple Deity.
Such honours in the strict eye of the Shastras cannot be called honours at all but as doles condescendingly given by the temple Deity as a 'favour '.
One of the honours, as is well known, shown to a, Hindu in a Vaishnava temple is to place the impression of the feet of the Deity upon the head or shoulders of the devotee.
Another is the distribution of the 'leavings ' of the food offered to the Deity to the distinguished devotee.
The sandal paste of the feet of the Deity and the leaving of his food and the garland worn by the God are given as marks of pure grace and not as rights and hoilours claimable by the devotee. .
This clearly shows that while we ought to humbly accept the Deity 's leavings given through the trustee or an archaka, a claim for 'honour ' to be shown in the presence of God is a sinful claim and is illegal and unshastraic.
I would therefore respectfully confine the decision in Sri Bungachariar vs Bungaswami Buttachar(1) to cases in which the receiving of the first theertham by an office holder has become indissoluble part of the ritual to b e performed by the recipient as an office holder and the extension of the principle should be carefully guarded against.
These are weighty observations and if they were appropriate in the year 1913 they should be much more so in the year 1961."
We respectfully accept these observations as laying down the correct proposition, namely, that a party claiming an honour like first theertham, etc., has to prove not only that he is an office holder of the temple and that he has been receiving the first theertham in the Ghoshti but also that the receipt of the first theertham, has become an integral part of the ritual to be performed by him as an officeholder; for, the receipt of the first theertham would be consistent with its being shown as a grace from the Lord and also as its being a part of the remuneration to the office.
Another division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponappa Ayyengar (2) had to consider the question of a claim to a religious honour which consisted of receiving theerthams and prasadams in the temple in certain order of precedence.
This case also relates to Athinathalwar temple and to the question of precedence among the theerthakars.
The first question raised was whether there was such an office as theertham office in the temple.
Krishnan, J., delivering the leading judgment, in rejecting that there was such an office observed: "It may be mentioned that among the Theer thakars there are some 5 or 7 in number, who are called Adhyapakamdars, whose special duty it is to recite these Prabandams and they are remunerated by Inam lands given to them.
They are what may be called the official reciters in this temple."
Adverting to the question raised, the learned Judge proceeded to observe: "It is clear that, to constitute an office one, if not (1) Mad, 291, 298.
(2) 961, 962.the essential, thing is the existence of a duty or duties attached to the office which the office holder is under a legal obligation to perform and the nonperformance of which may be visited by penalties ,such as a suspension, dismissal, etc."
Applying the test in the case of Theerthakars and other Adhyapakamdars, the learned Judge said: "The only difference between the outsiders and the Theerthakars, as shown by the evidence, is that the Theerthakars have special places allotted to them in the temple to stand and recite and they are given the honour of Theertham and Prasadam, before the outsiders get them; and they have what is called an 'Arulapad ', that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '.
This does not seem to show that they are anything more than a recognized and privileged class of worshipers who are shown special consideration by having places allotted to them in the temple and by being given the honours before the ordinary worshipers in an order of precedence fixed by the usage of the temple."
On a consideration of the evidence in that case, the learned Judge stated: "On the evidence as set out it must be held that the plaintiffs have not made out the existence of any obligatory duty on the part of the Theerthakars or Of any office called the Theertham office."
This judgment, therefore, establishes that there is no office called the theertham office in the temple, as there is no obligatory duty on the part of the said theerthakars in the temple.
As the claim to the said honour was not established to have been attached as emoluments to the religious office the suit was dismissed.
Sri Emberumanar Jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras (1) is a decision of a single Judge of the Madras High Court in a writ petition filed by Emberumanar Jeer questioning the order of the Religious Endowments Board which is the subject matter of (1) , 591. 524 the present appeals.
That writ petition was dismissed on the ground that the Board 's order related to administrative matter and, therefore, a writ of certiorari would not lie to quash the same; but in the course, of the judgment, Pandurang Row, J., made certain relevant observations and they are: "What was determined by the Board was the order of distribution of theertham and honours connected with theertham.
This matter cannot in my opinion be regarded as a determination of any rights of subjects.
The rights of subjects referred to in the rule are rights which can be legally enforced and not mere honours or precedence claimed or recognized as a matter of courtesy or usage.
It is not seriously disputed that the right to obtain the theertham or honours in a particular order of precedence is not a civil right which can be enforced or declared in a Civil Court."
After citing the observations in Sriman Sadagopa vs Kristna Tatachariyar (1), the learned Judge observed: "Indeed the rule that Civil Courts cannot take cognizance of claims to mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met with failure." The observations of the learned Judge are rather wide, for, as the earlier decisions show, though a suit for privileges or honours per se may not lie in a Civil Court, if they are annexed to an office, they can be agitated therein.
This judgment was taken in appeal to a division bench of the High Court, consisting of Leach, C. J., and Somayya, J., who confirmed the same.
They observed: "It is acknowledged that a question relating to the distribution of theertham or other temple honours cannot be made the subject matter of a suit as it is not a question which affects a legal right." The remarks we made in regard to the observations of Pandurang Row, J., would equally apply to these observations.
They do not represent the entire law on the subject, but only a part of it.
(1) 525 It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly.
For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil court.
(2) But a suit to establish one 's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites, is maintainable in a civil court.
(3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non observance of which he may be visited with penalties.
(4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order.
(5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part of its per quisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.
Having regard to the said principles, lot us now look at the contentions raised in this case.
The first submission of learned counsel for the appellant is that, in view of the said principles, the suit should have been dismissed in limine on the basis of the allegations in the plaint.
In paragraph 4 of the plaint in O. section No. 45 of 1945, the claim of the plaintiff to the office is stated thus: "The plaintiff is the present Emberumanar Jeer and as such the aradhanaikar and trustee of the said 67 526 Emberuraanar temple having been appointed and nominated by his predecessor Sri Sadagopa Ramanuja Jeer who died in 1930.
" In paragraph 7 of the plaint, his claim to the honours is stated thus: "In his capacity as holder of the office of aradhanaikar and trustee of the Emberumanar temple and as emoluments attached to the said office, the Emberumanar Jeer is by immemorial usage and custom entitled to receive, in the ghoshties that are formed before all the sannidhies in the Adhinathalwar temple on all occasions of each day on all the days of the year without exception, the first theertham and other honours described in Schedule 1 below and the perquisites described in Schedule 11 below." In paragraph 9 it is further stated: "In his capacity as holder of the office of Aradhanalkar and trustee of Emberumanar temple and as emoluments attached to the said office the Emberumanar Jeer is entitled to receive on the 7th day of Vaikasi festival in the Athinathalwar temple, in addition to and along with the honours and perquisites described in Schedules 1 and 11, certain other honours such as the tying of the silk gear, etc., more particularly described in Schedule III hereto.
These are known as special honours while the honours described in Schedules I and II are known as ordinary honours."
It is clear from the said allegations that the claim of the plaintiff to the ordinary and special honours in the Athinathalwar temple is based upon his capacity as office holder as Aradhanaikar and trustee of Emberu manar temple.
There is no allegation that he is an officeholder in Athinathalwar temple.
In the written statements filed by the defendants the claim of the plaintiff to the said honours is denied.
In O.S. No. 46 of 1945 also the claim of the plaintiff to the honours is based upon the same allegations that are made in the plaint in O. section No. 45 of 1945.
In the written statement filed by the defendants the said claim is denied.
Indeed, the original issues reflected 527 only the allegations found in the pleadings.
If the courts had directed their minds to the pleadings, as they should have done, instead of traveling beyond them in search of some plausible basis to sustain the plaintiff 's claim the suits would have been dismissed for the simple reason that on the allegations in the plaint the plaintiff was not an office holder in the temple of Athinathalwar and, therefore, he ' could not claim the honours shown to him in the said temple as perquisites attached to his office; but unfortunately this was not done, and we think that it is too late to dismiss the suit on that ground when all the parties adduced voluminous evidence on the alternative ground and took the decision of the courts.
We shall, therefore, pro ceed to consider the case on the alternative basis on which the claim has been put forward on behalf of the plaintiff in the courts below.
To appreciate the said basis, it is necessary to re capitulate the relevant facts.
Originally, the District Munsif dismissed the suit O. section No. 320 of 1933 (0. section No. 45 of 1945 on the file of the Court of the Subordinate Judge, Tuticorin) on the ground that the plaintiff has no legal right in respect of which he could seek relief in a civil court.
But on appeal the learned Subordinate Judge set aside the decree and remanded the suit for trial.
In paragraph 18 of his judgment, the learned Subordinate Judge stated: "In view of the above authorities I am of opinion that when the present plaintiff has come to Court with a specific case set out in paragraphs 7 and 9 of his plaint that his right of precedence to receive theertham, thulasi, satari, prasadam and other per quisites forms part of the emoluments of his office of aradanaikar in the suit temple, the suit cannot be dismissed on the preliminary ground that it is barred under Section 9, Civil Procedure Code.
There is an obvious mistake in this statement, for in the paragraphs mentioned therein it is not alleged that the plaintiff has an office in the Athinathalwar temple."
Presumably this mistake lead the learned Judge to come to the conclusion which he did.
On appeal, in the High Court it was pointed out to the court that 528 temple.
But Chandrasekara Aiyar, J., for the first time, allowed the plaintiff to make out a new case.
The learned Judge stated the said case in the following words: "One view to take up in this case is what was adopted by the District Munsif, namely, that as the plaintiff admittedly holds no office in the Athinathalwar temple he cannot claim these honours.
The other view which found favour with the Subordinate Judge is that owing to the alleged associations of the two temples, their interlinking and their interdependence, the Aradanaikar and trustee of the Emberumanar temple might claim to be regarded as an office holder in the Athinathalwar temple."
The learned Judge did not decide the point, but he observed: "But the idea of two temples or Mutts, of equal rank and co ordinate and independent authority or where one is the primary institution and the other its subsidiary or adjunct being linked together for certain purposes of worship and observance of rituals cannot be said to be entirely foreign to Hindu notions."
He concluded thus: "Of course, before he can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The question whether the origin of this new case is found in the judgment of the Subordinate Judge or that of Chandrasekara Aiyar, J., need not detain us.
This is a new case not disclosed in the plaint; but after remand both the parties directed their attention to this question and adduced all the relevant evidence pertaining thereto.
On remand, the learned Subordinate Judge in an elaborate judgment considered the said aspect of the case.
He considered the evidence under three heads, namely, (i) historical, (ii) administrative, and (iii) financial.
On the first head after considering the origin of the two temples, the learned Judge came to the 529 conclusion that the idea that the Emberumanar temple was historically connected with Athinathalwar temple could not be "poopoohed".
Under the administrative head, he found that till 1926 Emberumanar temple was merely a sub shrine attached to the bigger Athinathalwar temple, and the trustees of the latter temple were exercising administrative control over it as such.
Coming then to the financial side, he found that there was sufficient evidence to justify the inference that the two were intimately connected even financially.
Passing on to the question of ceremonial and religious association between these two temples, the learned Judge found that there was similarity in the mode of routine and day to day worship in the two temples; but there was no interlinking or interdependence between them in that matter.
Then the learned Subordinate Judge pointed out that notwithstanding that there was no interlinking and interdependence in that matter, they were so intimately associated with each other in other religious rites and ceremonies as to lead to the inference that the Emberumanar temple was after all only a sub shrine attached to the main temple of Athinathalwar.
Then he pointed out that the question in the said form was not before Chandrasekara Aiyar, J., but thought that it was open to him to go into the said question.
After going into the evidence, he finally came to the conclusion that apart from historical and secular association, there had been also ceremonial and religious association between the two temples and, therefore, the Emberumanar temple was nothing but a sub shrine attached to the main temple of Athinathalwar.
On that finding he further held that the plaintiff who was admittedly the aradhanaikar of the said temple was virtually an office holder in the main temple.
In the appeals filed by the various parties against the decrees of the learned Subordinate Judge, the learned District Judge of Tirunelveli reviewed the evidence once again under the said three heads and came to a contrary conclusion.
On the administrative side he found that the Emberumanar temple was not subordinate to the 530 temple of Athinathalwar, in the sense that the authorities of the latter temple could give orders to the authorities of the Emberumanar temple, that is, the former was not subordinate to the latter temple administratively.
On the financial side, he was equally emphatic that the two institutions were not interdependent.
On the religious or ritual aspect, the learned District Judge held that, as both the institutions were constructed in the same place, there must have been some connection between the two and in that sense in a general way the Emberumanar temple might be described as a sub shrine.
On the said facts, the learned Judge posed the following question for his consideration: "What is the inference to be derived? On the evidence, he answered the question thus: "I hold on the evidence that these institutions are not interdependent or intimately connected in such a way that an office holder of Emberumanar temple is necessarily an office holder of the Athi nathalwar temple.
I hold therefore that the plaintiff is not an office holder of the Athinathalwar temple and therefore he is not entitled to file a suit with regard to his rights of precedence in being given theertham."
This finding is certainly a finding of fact based upon the entire evidence in the case.
In the second appeal, the learned Judge of the High Court, on a review of the evidence, disagreed with the learned District Judge and accepted the finding of the learned Subordinate Judge, and held, for similar reasons, that the plaintiff was virtually an office holder in the main temple; he further held that the plaintiff could also be considered to be the holder of the office of arulipad and, in that capacity also he was entitled to the first theertham and other honours.
The first question is one of fact.
The learned District Judge, though he differed from the Subordinate Judge, held, on a consideration of the entire evidence that the plaintiff was not an office holder in the Athinathalwar temple.
It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of 531 fact however gross the error may seem to be.
The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge.
The second ground of decision of the High Court is based upon a case that was raised for the first time before it.
Nowhere in the plaints or before the two subordinate courts the plaintiff attempted to sustain his claim on his being the holder of the office of arulipad.
The High Court, therefore, was not justified in allowing the plaintiff to set out any such claim for the first time in the second appeal.
That apart, it does not appear that there is an office called arulipad.
A division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponnappa Ayyengar (1) had an occasion to define the word "arulipad".
There, a claim was made to the office of Theerthakar.
On the evidence it was held that the plaintiffs had not made out the existence of any obligatory duty on the part of Theerthakar in the temple.
In that context Krishnan, J., observed thus: ". . . the Theerthakars have special places allotted to them in the temple, to stand and recite and they are given the honour of Thertham and Prasadam, before the outsiders get them; and they have what is called an "Arulipad", that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '."
It is, therefore, clear that there is no office designated as " arulipad", but that word only describes the duty of the archaka to call their names to ascertain whether the theerthakars are present in the ghoshti.
There is no evidence in this case that the plaintiff, as a theerthakar, has any obligatory duty in the Athinathalwar temple to perform and, therefore, it is not possible to treat him as an office holder in that capacity in the said temple.
This leads us to the argument of the counsel for the respondent that, though it cannot be said that the Emberumanar temple is a part or a subordinate of the Athinathalwar temple in the sense that all the (1) 532 office holders of the former are the office holders of the latter, there is sufficient ritual connection between the two which in the consciousness of the religious public is treated as sufficiently intimate to make the one subordinate to the other.
This intimate religious connection, the argument proceeds, flows from the historical, administrative and financial ties, however loose they may be, that have existed for over a century between the said two temples.
This argument may have some validity in a theological discussion or an ecclesiastical court, but cannot obviously be accepted in a civil court.
Krishnaswami Nayudu, J., sum marizes the facts in his judgment which, in his view, support the conclusion that the Emberumanar Jeer was virtually an office holder in the Athinathalwar temple.
As the correctness of the said facts is not questioned before us, it will be convenient to extract them in the words of the learned Judge: "In all Vaishnavite temples, the Alwars and the Acharyas take a prominent place in the religious ceremonies and observances of the temple.
An attempt was made to show that there has been an interlinking and interdependence of the ritual and ceremonies between these two temples, but, as rightly found by the learned Subordinate Judge, in the matter of routine and day to day worship and rituals such interlinking and interdependence have not been satisfactorily made out.
The rituals or the manner of performing divine service are uniform in every Vaishnavite temple.
But, as found by the learned Subordinate Judge, though a ritual in the main temple is not dependent upon the ritual in the sub shrine, the Emberumanar deity being an Acharya is intimately associated with the deity in the main temple in all the important festivals, the most important of which are the Margali and Vaikasi festivals and other religious ceremonies.
There are several Mandagapadis for the Athinatha Alwar in the Emberumanar temple.
There is Sethu Thirumanjam for the Athinatha Alwar and Embe rumanar deities on three occasions, two of them in the Emberumanar temple and one in the main 533 temple.
Then there is what is called Alwar Sayanam which has to take place on the 10th day of the Margali festival and which is performed in the main temple.
There are several other similar religious observances, where the two deities meet and certain rituals and religious ceremonies are gone through.
The daily ritual in a Vaishnavite temple is a routine matter and on occasions, for instance, in the months of Margali and Vaikasi and on other festival days, there is necessity for the Alwars and the Acharyas to meet the main deity and ceremonies suitable to the occasions are performed.
It is not possible to imagine a temple where God Vishnu is installed without the presence of the Alwars and Acharyas.
Alwars and Acharyas are devotees of God Vishnu who have received divine recognition in their lives and the festivals in relation to them depict incidents of such manifestation of divine grace to his devotees.
It may also be mentioned that the installation of each Emberumanar Jeer,, who it may be stated is a Sanyasi, is in the Athinatha Alwar temple under its Dwajasthamba, the flag staff, and the declaration of the status of the succeeding Jeer is made only ill the presence of the deity of the main temple.
" We may also add to the said facts that at one time the share of tasdik allowance to the Emberumanar temple was paid through the trustee of Athinathalwar temple and there was also an occasion when a trustee of the Emberumanar temple was dismissed by the trustee of the Athinathalwar temple.
On the other hand, both the temples are under different managements, they have their separate officeholders, distinct rituals, different budgets, and separate endowments; and in the year 1926 on an application filed by the Emberumanar Jeer, the Religious Endowments Board declared the temple as an excepted temple indicating thereby that the Emberumanar temple was a separate legal entity and that the said Jeer was its hereditary trustee.
only question, therefore, is whether the said facts enable a court to 68 534 hold that one temple is subordinate or part of the other temple, so that the office holders of one temple would become the office holders of the other.
The facts clearly establish that in fact and in law the two institutions are different legal entities.
In the past, the trustees of Athinathalwar temple might have disbursed tasdik allowances contributed by the Government to the various temples, including the Emberumanar temple, but it is well known that for convenience of administration the services of the trustees of a larger temple were very often utilized by the Government in that regard; it might have been that sometimes the amounts payable to the smaller temples were allowed to lapse, but there is nothing on the record to show that it was not out of negligence of the trustees of the minor shrines in not making any pressing demands on the trustees of Athinathalwar temple; it might also have been that the trustee of the bigger temple, in his supervisory capacity, dismissed once in a way the trustee of a smaller shrine in the locality, but that could be explained by the paramount position of the trustee of the bigger temple in the locality compared to that of the minor temples.
These and such acts may show that the trustee of the Athinathalwar temple had exercised similar supervisory control in the past over the minor temples; but that in itself does not make the trustee of the temple of Emberumanar an office holder in the bigger temple.
It is well known that in the past the temples were under the supervision of the Revenue Board and later on under various temple committees.
It cannot be suggested that on that account.
the trustees of the minor temples were officers in the Revenue Board or the temple committees, as the case may be.
We cannot also appreciate how the mutual visits of the idols to the other 's temple and the honours shown to the idols on such visits could have any bearing on the question to be decided, though they reflect the intimate relationship that exists between the Lord and his ardent devotee Ramanuja in the public consciousness.
But such cordial relationship existing between two independent temples cannot in the eye of law make the 535 one a part of the other.
Two independent institutions legally cannot, except in the manner known to law, be amalgamated into one institution by developing merely sentimental attachment between them.
This argument was rightly rejected by the learned District Judge, and the High Court went wrong in accepting it.
Before we close we must make it clear that by this judgment we have not in any way intended to express our view in the matter of honours that are customarily shown to one or other of the parties in these appeals in the temple of Athinathalwar.
In the result we hold, agreeing with the District Judge, that the suits were not maintainable in the civil court.
The appeals are, therefore, allowed with costs throughout.
Appeals allowed.

summary/full:
The respondent as the aradanaikar and trustee of the Emberumanar temple, dedicated to Sri Ramanujacharya, which was one of the group of temples built around the main temple of Athinathalwar in the Tirunelveli District, brought the two suits, out of which present appeals arose, for declaration of his right to the first theertham and other honours and perquisites in precedence over all other worshippers in the temple of Athinathalwar and his case was that he was entitled to them by virtue of his office in the Emberumanar temple.
The matters came up to the High Court.
There was a remand order and the Subordinate Judge who tried the suits thereafter held that the Emberumanar temple was a sub shrine attached to the main temple and as such the plaintiff was virtually an office holder in the main temple and the precedence claimed by him was attached to that office as part of the remuneration and decreed the suits.
On appeal the District judge, on a review of the entire evidence, set aside the findings arrived at by the trial court and dismissed the suits as not maintainable.
The appeals to the High Court were heard by a single judge who, on a reconsideration of the evidence, reversed the findings of the District judge and affirmed those of the Subordinate judge and decreed the suits.
It was, further, held by the High Court that, as one of the theerthakars, the appellant could be considered to be the holder of the office of arulipad in the main temple.
Held, that although it was not permissible under section 9 of the Code of Civil Procedure for a civil Court to entertain a suit for a declaration of religious honours and privileges simpliciter, it could entertain a suit to establish one 's right to an office in a temple and to the honours and privileges attached to such office as its remuneration or perquisites.
But the essential condition for the existence of an office was that its holder must be under a legal obligation to discharge the duties attached to it and be liable to penalty on failure to do so.
So judged, there could neither be an independent office of theerthakar, for he had no obligatory duties to perform, nor that of an arulipad, since that word only connoted that the names of theerthakays were called out by the archaka in a particular order.
65 510 The question whether first theertham or any other honours shown to a person were merely as a mark of respect on the occasion of his visit to the temple, or were part of the remunera tion attached to his office, must in every case be decided on evidence and in the latter case such honours must be shown to have formed an integral part of the ritual to be performed by the recipient as the holder of the office.
Athan Sadagopachariar Swamigal vs Elayavalli Srinivasa chariar, , approved.
Striman Sadagopa vs Krishna Tatachariyar, (1863) 1 M.H.C.R. 301, Sri Rungachariar vs Rungasami Buttachar, (1909) I.L.R. and Vathiar Venkatachariar vs P. Ponappa Ayyangar, , referred to.
Sri Emberumanar jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras, (1936) 71 M.L.J. 588, considered.
Held, further, that it was well settled that the High Court bad no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error might seem to be.
In the instant case, the High Court was clearly in error in reversing the finding of the District judge, which was one of fact, that the Emberumanar temple was neither subordinate to, nore part of the Athinathalwar temple and no office holder of the former could, therefore, become an office holder of the latter.