JUDGMENT
1. These two civil revision petitions are directed against a common order dated 4-8-1995 whereby and whereunder four applications filed by the petitioner herein had been dismissed. By reason of the impugned, orders, an application filed by the petitioner for condonation of delay in filing the application for restoration and consequently the petition for restoration were dismissed.
2. The property in suit is a trust property. Two suits had been filed – one by the plaintiff being OS No.124 of 1987 against three defendants for declaration of his title and permanent injunction wherein the petitioner – Sri Subrahmanyeswara Swamy Temple is the first defendant. The said tempt filed OS No.288 of 1989 against the aforementioned sole plaintiff in OS No.124 of 1987 for declaration of title and recovery of possession.
3. Both the aforementioned suits were tried together and during the course of trial on 7-7-1995 the learned Counsel appearing on behalf of the petitioner herein represented that he had no instructions in his matter. The petitioner herein was also called absent. The said suit was fixed for ex parte hearing whereafter it was dismissed. The petitioner filed IA No.872 of 1995 and 837 of 1995 for setting aside the ex parte decree as also for restoring the suit to its original file. In course of hearing, it was brought to the notice of the Court that the hereditary trustee was dead. As no step was taken to bring the legal representation of hereditary trustee on record, the said applications filed by the petitioners herein were dismissed. The leaned trial Judge in the impugned order held that the delay has not been properly explained. It was further inter alia held that the daughter of the hereditary trustee of the temple should have filed the application and not the petitioner herein.
4. It is stated by the learned Counsel appearing on behalf of the petitioner, that having regard to the fact that the hereditary trustee died, his daughter was not the legal heir in respect of the property in question. It was also submitted that she also now become a hereditary trustee but the matter is pending in appeal before the State Government.
5. It appears that the learned trial Judge failed to take into consideration the
fact that the applications had not been filed by the Endowments Inspector but had been filed by the temple which was the plaintiff. Only an affidavit affirmed by the Inspector, Endowments Department in support of the said applications was filed.
It is one thing to say as to whether the Inspector, Endowments Department could have represented the temple or not but it is another thing to say that it had filed the application.
It is observed in the impugned judgment thus:
Before dwelling into the point one fact to be referred is the suit is filed by hereditary trustee and he is having a daughter. Why she has not made application is not explained by the petitioner. In the same manner, it is not made out by the petitioner that he was appointed as an Inspector for the petition Temple. No letter of authority or orders of appointment placed before the Court. In my opinion it is necessary to prove his locus standi in making these applications more in the light of the fact the daughter of hereditary trustee still is there as a legal heir. So he cannot agitate for the temple which filed the suit represented by hereditary trustee not by Endowments Department. This is basic lacuna in these applications.
6. It is stated that there exists a dispute with the daughter of the original official hereditary trustee regarding trusteeship and on that ground alone the application ought not to have been dismissed.
7. If there was an objection with respect to the authority of the Inspector of Endowments to file the said application, the same could have been returned to the petitioner so as to enable him to satisfy the Court that he had the authority to file the said application.
8. As the aforementioned aspects of the matter had not been taken into consideration by the learned trial Judge, this Court is of the opinion that the matter should be considered afresh. It is further observed that now the daughter of the original hereditary trustee has also become an official trustee although the said matter is pending in appeal, the question as to whether she should now be impleaded as party respondent should be considered afresh. The property is a public property and in that view of the matter, in public interest, in the opinion of this Court, the applications for restoration as also the application for setting aside the ex parte decree should be considered keeping in view the fact that for failure on the part of the hereditary trustee, a public trust should not suffer.
9. For the reasons aforementioned, the impugned order cannot be sustained which is set aside accordingly and the matter is remitted to the learned trial Judge for consideration of the matter afresh. The revision petitions are accordingly allowed. No costs.