Pandrang Row, J.@mdashThis appeal is from the decree of the Additional District Judge of Coimbatore in O.S. No. 2 of 1937 dismissing a suit
instituted u/s 63 of the Madras Hindu Religious Endowments Act for setting aside a scheme settled by the Board, on the preliminary ground that
the plaintiffs who were the trustees of the religious endowment in question, namely, Sri Kannikaparameswari Amman temple at Peria Nagaman in
Pollachi Taluk were estopped from questioning the scheme. This defence of estoppel was raised by the Board (first defendant) though the right of
recourse to a Civil Court from the order of the Board settling a scheme was intended to be negatived in this manner. It is difficult to understand
how the Board which dealt with this matter of settling a scheme in a judicial capacity after hearing the parties and taking evidence can be said to
have been prejudiced so as to attract the doctrine of estoppel. Assuming however that the Board is under no disability, so to say, of putting
forward a plea 6f this kind in respect of a matter decided by it judicially or at least quasi-judicially the question remains whether the Court below
was right in deciding this plea in favour of the Board. Reliance is mainly placed on a certain statement made by one of the plaintiffs Bala
Venkatarama Chettiar before the Inspector of Religious Endowments on the 24th November, 1935, in the village itself in the course of an inquiry
which he was holding into the petition presented by certain persons against the trustees of the temple. At the end of a long statement recorded from
this plaintiff by the Inspector, an addition is made to the following effect:
I have no objection to a dittam being settled by the Board for the management of the aforesaid temple. Nor do I have any objection to the
appointment of a responsible man from our caste as interim trustee or to any other order being passed until the dittam is framed.
2. The word ''dittam'' which is found in the above statement has been taken to be equivalent to the word ''scheme'' in the lower, Court''s judgment,
but without any sufficient justification, it would appear, for the ordinary meaning of the word ''dittam'' is certainly not the same as that of the word
''scheme''. A scheme for the management of a temple is one thing, whereas a dittam for the conduct of affairs in a temple is different. Unfortunately
in this note the word ''dittam'' is applied to the management of the temple, but this does not mean that the word was used in the sense of a scheme.
''Dittam'' is a word which is found used in the Hindu Religious Endowments Act itself {vide Section 55) where ''dittam'' is described as the scale of
expenditure in the temple, and that is the sense in which it is, so far as we are aware, used with reference to temples and indeed that must be the
sense in which it must have been used by a man like the person who made this statement, namely, a trustee of the temple. In other words, when a
trustee of a temple speaks of dittam, he could only mean the scale of expenditure which is fixed for the conduct of necessary services, etc., in the
temple and certainly could not have meant a scheme for management. of the temple affairs involving the appointment or election of trustees and so
on. It is therefore clear to us that this statement cannot be regarded as being a consent given to the framing of a regular scheme for the
administration of the temple or the religious endowment. The other evidence relied upon in support of this alleged consent is quite inconclusive.
Certain notes made by two Commissioners during the inquiry have been pointed out to us as showing that the parties agreed to a scheme being
settled. But if the words are to be construed strictly, as the plaintiffs were not present before the Commissioners in person, they could not have
agreed, and if, as is now alleged, it was the Vakil, who appeared for the plaintiffs, who gave the consent, the note should have been to this effect.
If, as a matter of fact, the Vakil who appeared for the plaintiffs before the Board had consented to the framing of a scheme, it would have been
quite possible to prove this fact either by examining the Vakil or at least the Vakil who appeared on the opposite side, if it was thought that it
would not be consonant with the dignity of the Commissioners for one of them to give evidence in the case. The best evidence on this point has not
been put before us and we are unable to regard the statements made in the notes as being sufficient to show in a matter of tHis importance that the
plaintiffs had unreservedly given their consent to the ''framing of a scheme just as the Board pleased. The evidence of D.W. 1 on this point is really
irrelevant being substantially nothing more than hearsay evidence. We are therefore not satisfied that in this case there was any real consent given to
the Board''s framing a scheme as it pleased.
3. Even otherwise, any consent given to the framing of a scheme would not cover a scheme which it would be beyond the jurisdiction of the Board
to frame. The temple in question was decided by the Board itself to be an excepted temple, and in view of Section 84 of the Act that decision is
final as no one objected to that decision. So far as the powers of the Board to frame schemes in regard to excepted temples are concerned, they
are to be found in Section 63 of the Act, and as it now stands, it provides, no doubt, for the fixing of the number of non-hereditary trustees, for the
appointment of new trustees, in addition to the existing trustees or for associating persons with the trustees, but not for appointing new trustees in
the place of existing trustees and in effect for the removal of the existing trustees and replacing them by others. Whether this has been done in this
case or not does not seem to be established as clearly as it might have been, and we do not therefore propose to decide this point, because for
other reasons we have decided that the case should go back to the Court below for disposal on the merits, and it will be left to the Court below to
decide this point, namely, whether any portion of the scheme settled by the Board is beyond the jurisdiction of the Board.
4. A further attack on the judgment of the Court below is based on the contention that even if consent had been given to the framing of the scheme
and the scheme were not beyond the jurisdiction of the Board, nevertheless the consent must be deemed to have been given by the trustees in their
personal capacity and could not be said to operate as an estoppel against the institution of which they were the trustees or even against the trustees
themselves when suing or being sued in the capacity of trustees. For this proposition several authorities have been quoted. It is enough to refer to
the decision in Sena Yasim Sahib and Another Vs. Kadur Ekambara Aiyar, and the cases therein quoted. The degision is clearly in point and we
intend to say no more than that we agree with the decision therein. It would thus follow that the finding of the Court below that the plaintiffs are
estopped from maintaining the suit is not correct.
5. The revision petition raises the question whether the order of the Court below dismissing the application of certain other persons claiming to be
brought on record as additional plaintiffs under Order 1, Rule 10, Civil Procedure Code, is wrong. These persons, who are petitioners in the
revision petition, desired to come in as supplemental plaintiffs in the suit in order to avoid any possible prejudice to the institution by reason of the
previous conduct of the old trustees (plaintiffs in the suit). The lower Court instead of passing an order on this petition before disposing of the suit
on the preliminary ground of estoppel, chose to adopt the extraordinary course of waiting till the suit itself was dismissed on the preliminary ground
of estoppel and then dismissing the petition made under Order 1, Rule 10, Civil Procedure Code, on the ground that as the scheme framed by the
Board had become final by reason of the dismissal of the suit filed by the plaintiffs, the application under Order 1, Rule 10, was not maintainable.
This ex post facto method, so to say, of disposing of applications of the kind must be condemned unreservedly. It is a denial of justice to refrain
from passing orders on petitions like this till the suit is itself dismissed on some ground or other and then to say that as the suit had been dismissed
there was nothing pending in the Court to which the petitioners could be made parties. Obviously having regard to the nature of the ground on
which the suit was dismissed, namely, the ground of estoppel which was available only against the plaintiffs in the suit, this was an eminently fit case
for the favourable consideration of the Court in the interests of the institution. We have no doubt that the lower Court erred, and erred grievously in
dealing with this application in the manner it did. We have no doubt that the application ought to ""have been allowed without further question,
especially having regard to the lower Court''s own view that the suit would have to be dismissed on the ground that the plaintiffs were in effect
estopped from bringing it. We therefore allow the petition, set as the order of the Court below and direct that the petitioners in the revision petition
be made additional plaintiffs in the suit. The parties will, however, bear their own costs, in this revision petition.
6. In view of our opinion that there is no estoppel standing in the way of the plaintiffs the decree of the Court below dismissing the suit is set aside
and the lower Court is directed to restore the suit to its original number on the file and dispose of it according to law. The appellant''s cost of this
appeal must be paid by respondents twp to four; the first respondent''s (Board''s) costs will in accordance with law come out of the endowment.
As regards costs in the suit already incurred in the Court below and to be incurred in future, they will abide the result and should be provided in the
revised decree of the lower Court. The Court-fee paid on the memorandum of appeal will be refunded to the appellant.
