M.V. Hayagreeva Rao vs Commissioner of Hindu Religious and Charitable Endowments Board, Hyderabad

Kumarayya, J.—The petitioner is the appellant. He seeks for a stay of operation of the scheme framed by the Commissioner, Hindu Religious and Charitable Endowments, Guntur, as modified by the Subordinate Judge, Bapatla. His application is resisted by the respondent on the ground that the provisions of S. 62 of the Hindu Religious and Charitable Endowments Act (XIX of 1951) disentitles him to such a relief. The petitioner as a matter of fact brought his suit under that very section and admittedly but for that section the order of the Commissioner could not be called in question in a Civil Court having regard to the express provisions of S. 96 of Act XIX of 1951. The said section not only confers a right of suit on the party but also defines the power of the Court entertaining the suit and provides a right of appeal too. The relevant portions of that section read thus:

Section 62(1): Any party aggrieved by and order passed by the Commissioner -

(i) under S. 61, sub-s. (1) or sub-s. (2) and relating to any of the matters specified in S. 57, S. 58 or S. 60; or

(ii) under S. 57, S. 58 or S. 60, read with sub-s. (1)(a)(2) or (4)(a) of S. 19 or with sub-s. (3) or (4) of S. 80; may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order, but it shall have no power to stay the Commissioner'' order pending the disposal of the suit; and the Court may modify or cancel such order but (sic) shall have no power to stay the Commissioner'' order pending the disposal of the suit.

(2): Any party aggrieved by a decree of the Court under sub-s. (1) may within ninety days from the date of the decree, appeal to the High Court.

Thus in view of this provision the trial Court may affirm, modify or cancel the order of the Commissioner. It is not free grant any other relief as the facts of the case would warrant. Besides it has no power stay the Commissioner''s order pending tria(sic). This section confers a right of appeal but does not in terms lay down the powers of the appellate Court. It does not expressly provide that the powers of the appellate Court as similarly fettered as those of the trial Court. On that account the counsel for the petition has argued that he can, notwithstanding S. (sic)(1), be granted interim relief prayed for. B(sic) on behalf of the other side it is argued the the limitations contained in S. 62(1) (ii) gove(sic) the provisions of S. 62(2) as well for on true construction this legal provision would convey such a manifest intent of the Legislature. Reliance in this regard is placed in the following passage in ''Maxwell on the Interpretation of Statutes''. Tenth Edn., at p. 160:

An author must be supposed to be consistent with himself, and therefore, if in (sic) place he has expressed his mind clearly, ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does hot in express terms modify or repeal.

It is thus argued that the appellate Court has no power to stay the Commissioner''s order even in its modified form. For the ascertainment of the general powers of the apellate Court it will be appropriate to refer to the provisions of S. 107, C. P. C. Sub-section (2) of S. 107 reads thus:

Subject as aforesaid the appellate Court shall have the same powers and shall perform as nearly as may the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

It follows that this Court as the Court of Appeal, subject to sub-s. (1) of S. 107, C. P. C., has the same powers in relation to the suit as the original Court could have exercised while the suit was pending before it and has the same duties as imposed on the original Court. As already stated under the special provisions of S. 62 the original Court has no power to stay the Commissioner''s order during the pendency of the suit. The appeal being the continuation of the suit and the powers and duties of the appellate Court being the same is those of the original Court it follows that that prohibition will continue till the disposal of the appeal. It is, however, argued that the Commissioner''s order being merged in the decree passed by the original Court it has no longer its separate existence and therefore the only order to be stayed is the trial Court''s decree which the appellate Court has power to (sic)tay under S. 151, C. P. C., on the analogy of O. 41, R. 5, C. P. C. It must be remembered that the original Court has not cancelled the order but has merely modified it and thai only (sic) some extent. Its identity has not been extinguished. The stay of such order, therefore, will in substance be the stay of the Commissioner''s order itself. The prohibition contained in S. 62 therefore stands in the way.

Apart from this legal difficulty even on (sic)erits the petitioner is not entitled to interim belief claimed. It is significant that the appeal was preferred 3 years ago. The petitioner did not apply for stay within reasonable time but has waited for full three years though as observed by their Lordships in Nawab Sidhee (sic)uzur Ally Khan v. Rajah Oojoodhyaram (sic)han, 10 Moo Ind App 322 at p. 328 (PC) (A), is the duty of the appellant to apply for (sic)ay of the proceedings promptly and without (sic)y delay. Evidently one of the essentials of O. 41, R. 5, C. P. C., is not thus complied with (sic)d consequently the discretion under O. 41, R. 5, C. P. C., ought not to be exercised in favour of the appellant. The same would be the position if the powers under S. 151, C.P.C., are invoked. Besides the appellant has failed to show any substantial loss that may be caused to him in case the decree of the Court below is acted upon. It is evident that the appellant will be still in charge of the management even according to the modified scheme. Thus no question of real prejudice would arise which may necessitate the exercise of inherent powers as requested by the petitioner.

Thus having regard to the object of S. 62(1) and (2) of the Hindu Religious and Charitable Endowments Act (Act XIX of 1951) and also consideration that should weigh with the Court while granting interim relief, I see no reason to allow this petition. It is, therefore, dismissed without costs.