Subramania Ayyar, J.@mdashThe learned vakil for the petitioner (second defendant) urged that the award of the arbitrators and the decree
thereon were illegal in so far as they related to (i) the dismissal of the petitioner from his office as a member of the committee and (ii) the award of
interest prior to the date of the plaint.
2. Whether, if the contention were sound, the petitioner''s remedy was not by appeal I refrain from determining, as I have come to the conclusion
that the contention is unsound. Now with reference to the first point mentioned, viz., the dismissal from office, it was argued that it was not
competent for the Judge to refer the point to the arbitrators, as it involved virtually a question of criminal punishment, which was for the Judge and
not the arbitrators to deal with. I however fail to see how the jurisdiction to remove a trustee exercised by the Civil Courts has any reference to
crimes or their punishment. In the first place it is a purely civil jurisdiction exercised by the Courts as ancillary to its principal duty to see that the
trusts are properly executed Letterstedel v. Broers L.R. 9 App. Cas 386. Nor is it true that removal from office is decreed always as punishment.
No doubt such relief is often granted when misconduct is proved. But, as pointed out by the Judicial Committee in the case above cited, a trustee
may be removed even when no misconduct is established if the Court is satisfied that the continuance of the trustee would prevent the due
execution of the trusts.
3. As to the second point, the argument was that, inasmuch as the plaintiffs bad not claimed interest prior to the date of the suit, neither the
arbitrators nor The Judge had authority to award such interest. It is quite true that in the plaint schedule interest prior to the date of the suit is not
specified as one of the items making up the amount claimed as damages sustained by the temple in consequence of the malversation committed by
the petitioner and the other trustees. But, the sum awarded, including the interest in dispute, does not exceed that claimed as damages. And, except
as fixing a limit beyond which recovery cannot be had, the averment of the amount of damages is not a material one (Sedgwick on Damages, Vol.
III, Section 1260, 8th edition). I am therefore of opinion that it was quite competent to the arbitrators and the District Judge to award to the temple
the interest in question as part of the compensation due to it with reference to the amounts found to have been misappropriated. The petition fails
and is dismissed with costs.
