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Report No. 54

Chapter ID

Suits in General

Introduction

1D.1. Part I of the Code deals with litigation in the simplest case, from the time the plaintiff decides to sue and has to select his forum, to the time, when, having obtained a decree, he proceeds to execute it. It assumes that the plaintiff is sane and adult, and neither an indigent person, nor a soldier etc. It also assumes that the defendant is, similarly, sane and adult, and is not an indigent person, a soldier etc. Further, it assumes that the suit is not compromised, and that, in the course of the litigation, neither party dies, becomes insolvent, or otherwise assigns his interest in the subject matter of the suit; and, most important of all, it assumes that the suit is not delayed by reason of interlocutory appeals.

1D.2. These assumptions explain the apparent simplicity of sections 9 to 35A, contained in this part of the Code. Moreover, most of the important stages of the trial are left to be dealt with by rules in the Orders contained in the First Schedule.

Section 2-Definition of "decree"

1D.3. Section 2(2) defines the expression "decree". In the Commission's earlier Report1 the question whether an order rejecting a memorandum of appeal on the ground of deficit in court-fees should be treated as a "decree", was considered. The Commission thought that it would not be convenient to insert a provision on the subject in the definition of "decree", as there is no specific provision in the body of the Code or in the rules, relating to rejection of a memorandum of appeal (except Order 41, rule 3(1) and (2) which deal with rejection on the ground of certain formal defects).

1. 27th Report, note on section 2(2).

Recommendation

1D.4. We appreciate the difficulty felt by the previous Commission, and have, after some discussion, come to the same conclusion.

Section 9

1D.5. With reference to section 9, the previous Commission1 had in the earlier Report, occasion to consider a question relating to religious offices. Reviewing the case law, on the subject, it stated the position as follows:-

"(i) Suits relating to religious offices to which fees are attached. Such suits raise no difficulty.

(ii) Suits relating to religious offices to which fees are not attached. These can be classified into:-

(a) offices which are attached to a sacred spot;

(b) offices which are not so attached.

(2) The Bombay High Court seems to have recognised a distinction between (a) and (b) above, and the majority of the decisions2 of the High Court allow a suit for an office under (a) above but not for an office under (b) above.

(3) The other High Courts do not seem to recognise this distinction".

1. 27th Report, note on section 9.

2. A number of cases were cited.

1D.6. Its principal conclusion was thus expressed:

"Since the distinction made between cases (a) and (b) is not recognised by the majority of the High Courts, it is unnecessary to amend the section".

1D.7. It appears to us, however, that opportunity should be taken of clarifying the position on the particular point about which the Bombay view differs with that of other High Courts.

1D.8. The general propositions stated below are not in doubt-

(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.

1D.9. The controversy is only in relation to an office not attached to a sacred spot and not carrying any fees. We may illustrate the controversy by referring to a Bombay case,1 where it was held that a suit to establish a claim to perform the Urs ceremonies and to manage the offerings can be entertained in a civil court, because though the offerings may be uncertain and voluntary, still, when they are made to a particular date, they are the property of the temple (or shrine) concerned, and can be the subject-matter of a civil suit. One of the reasons which the court gave in its judgment is relevant to the present point, and may be quoted-

1. Kasam Khan v. Kaji Isub, AIR 1926 Bom 161.

"Again, it is not in respect of what may be called an 'itinerary', right over a certain territory, such as formed the subjects of the suits in Madhusudan Parvat v. Shankaracharya and Sayad Nurudin v. Abas. The present suit is in regard to a religious office attached to a shrine, and if the distinction suggested by Mr. Mulla at page 22 of his commentary for reconciling the decisions of this High Court is justified, the suit is not barred".

1D.10. This distinction, however, does not appear to have found favour with the other High Courts.1 In our view, the distinction is unnecessary, and the law should be clarified so as to override the distinction made in some of the Bombay cases. Though the controversy relates to religious offices, the clarification has to apply to all offices, in order to avoid the argument that other offices are governed by any other rule.

1. See references in 27th Report.



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