The Executive Office... v. Tholappa Iyengar Ali..., Madras High Court, Judgment, Law, casemine.com

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Case Number

Appeal No. 462 of 1980

Attorney(S)

Mr. R. Sundaravaradan, for Appellant.
Mr. V. Krishnan, for Respondents.

Judges

Abdul Hadi, J.

Acts

S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the Act).
S. 5 of the M.P Public Trust Act, 1951.

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Smart Summary

Factual and Procedural Background

The appellant is the 6th defendant, the Executive Officer of Sri Kallalagar Devasthanam, Alagarkoil. The suit was instituted by the 1st respondent (referred to as the 2nd plaintiff in the trial) together with the deceased 1st plaintiff, seeking a declaration that they were entitled to keep undial in the Samayamandapam constructed by their ancestors for collections during the Chitrai Festival, to appropriate those collections to themselves, and for consequential permanent injunctions against the defendants.

The 1st plaintiff died while the suit was pending; his only heir was impleaded as the 7th defendant (7th respondent in the appeal) but did not assert any claim. The suit was instituted under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 ("the Act"). Before filing the suit the plaintiffs had sought the same relief from the Deputy Commissioner under Section 63(e) of the Act; the Deputy Commissioner negatived the relief and the Commissioner confirmed that decision. The plaintiffs then filed the present suit and succeeded in the trial court, which decreed the suit as prayed.

A procedural objection was raised in the trial court by the 8th defendant (the Commissioner, H.R. & C.E., Madras) in a written statement that the suit was not maintainable because no notice had been given under Section 80 of the Civil Procedure Code (C.P.C.). The trial court held that no relief was sought against the 8th defendant and therefore a notice under Section 80 C.P.C. was not necessary.

Legal Issues Presented

Whether a notice under Section 80, Civil Procedure Code, is a mandatory condition precedent to the maintainability of a statutory suit brought under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
Whether the 6th defendant (the Executive Officer) could maintain the present appeal given that other defendants (the trustees) did not prefer an appeal against the trial court decree.

Arguments of the Parties

Appellant's Arguments (6th defendant — Executive Officer)

The trial court erred in holding that no notice under Section 80 C.P.C. was required because it was factually incorrect: the injunction relief granted in the trial court was also against the 8th defendant (the Commissioner), so notice under Section 80 was necessary.
Reliance on the Division Bench decision reported as Executive Officer, Arulmigu Ranganathaswami Devasthanam v. H.H. Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan and others, 1989 1 L.W. 361, which held that notice under Section 80 C.P.C. is necessary even for statutory suits under Section 70 of the Act. If that decision is followed, the present suit is not maintainable and must be dismissed, making detailed argument on merits unnecessary.

Respondent's Arguments (1st respondent — 2nd plaintiff)

There exists an earlier Division Bench decision, Lakshmana Shah v. Commissioner, H.R. & C.E., 1971 II M.L.J. 495 = 84 L.W. 828, which held that notice under Section 80 C.P.C. was not necessary for a statutory suit under Section 70 of the Act; on that basis the matter should be referred to a Full Bench to resolve the conflict.
The appeal brought by the 6th defendant was asserted to be not maintainable because defendants 1 to 5 (the trustees) did not appeal; the submission was that the Executive Officer merely assists the trustees in administration and the trustees alone administer the temple. (The court did not accept this contention on locus and held the appellant could maintain the appeal because he was a party and relief had been granted against him.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Executive Officer, Arulmigu Ranganathaswami Devasthanam v. H.H. Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan and others, 1989 1 L.W. 361 (D.B.)	Held that notice under Section 80 C.P.C. is necessary even for statutory suits under Section 70 of the Tamil Nadu H.R. & C.E. Act.	The court followed this later Division Bench decision as binding in the present case, adopting its conclusion that absence of a Section 80 notice renders the suit not maintainable.
Lakshmana Shah v. Commissioner, H.R. & C.E., 1971 II M.L.J. 495 = 84 L.W. 828 (D.B.)	Held that no notice under Section 80 C.P.C. is required in respect of a statutory suit under Section 70 of the Act (subject to qualification when combined with other reliefs challenging applicability of the Act).	The court acknowledged this earlier Division Bench decision as conflicting with the 1989 decision but concluded it should not be followed in the present matter because the later Division Bench had relied on Supreme Court authorities and provided fuller reasoning.
State of Maharashtra v. Chander Kant, A.I.R. 1977 S.C. 148	Established that an official such as a Registrar is a "public officer" and that an order by such an officer is an act "purporting to be done" in official capacity, thereby attracting Section 80 notice requirement.	The 1989 Division Bench treated this Supreme Court decision as analogous; the present court relied on the 1989 Division Bench's use of this authority when deciding that Section 80 notice was required.
Sawai Singhai v. Union of India, A.I.R. 1966 S.C. 1068	Held that the plain words of Section 80 C.P.C. require notice even where the Government or its officers already knew that a suit might be filed; the requirement cannot be negated by such circumstances.	The 1989 Division Bench relied on this Supreme Court decision; the present court accepted that reliance as reinforcing the conclusion that Section 80 notice is mandatory in the circumstances of a suit against the Commissioner.
Commissioner H.R. & C.E. v. Kacherichamy (single Judge decisions following 1971)	Followed the view that Section 80 C.P.C. notice was not necessary for a bare statutory suit under Section 70.	Noted by the court as examples of single Judge decisions following the earlier 1971 Division Bench position; these were not followed in preference to the later Division Bench decision of 1989.
His Holiness S.S.S.V.D.Y. Mahadesikan v. Commissioner, H.R. & C.E. (single Judge, later reversed by 1989 D.B.)	Followed the earlier view that Section 80 notice was not required; subsequently reversed by the 1989 Division Bench.	Cited as an example of a single Judge decision that was reversed by the later Division Bench 1989 decision which the present court followed.
S.N. Chinna Kandar v. Commissioner, H.R. & C.E., I.L.R. 1980 II Madras 213	Another single Judge decision following the 1971 Division Bench view that Section 80 notice was not required for a pure statutory suit.	Noted as part of the body of precedent aligned with the earlier Division Bench decision; the court placed these decisions in the context of conflicting views and preferred the 1989 D.B. view.
(1981) I M.L.J. 375 = 94 L.W. 555	Explained that where a statutory suit under Section 70 is combined with a suit challenging applicability of the Act, the latter suit requires compliance with Section 80 notice; a mere statutory suit does not.	Referred to by the court in explaining the limited scope of the 1971 Division Bench passage and the distinction between a bare statutory suit and a combined suit.
Govindanaik v. West Paten Press Co. (Karnataka decision discussed)	Set out a majority view (3:2) that where two Supreme Court decisions on the same question cannot be reconciled, the later decision should be followed by lower courts; minority suggested following the decision better in law.	The appellant relied on the majority rule to urge following the later decision; the court considered this material but ultimately emphasized the reasoning of the later Division Bench which relied on Supreme Court decisions.
Amar Singh Yadav v. Shanti Devi, A.I.R. 1987 Patna 191 (Full Bench)	Held that where there is a direct conflict between two decisions of the Supreme Court rendered by co-equal Benches, a High Court should follow the judgment which states the law more elaborately and accurately.	Relied upon by the court as support for following the later Division Bench decision which it found to state the law more elaborately and accurately in the light of Supreme Court authority.
Neyveli Lignite Corporation Ltd. v. Spl. Tahsildar No. III, Land Acquisition (referenced)	Raised the proposition that where there is conflict between two decisions, the one stating the law more elaborately and accurately should be followed.	Cited to reinforce the court's reasoning in preferring the later Division Bench decision with fuller reasoning.
V.R.G. & G.O.M.C. Co. v. State of Andhra Pradesh; Tribhovandas v. Ratilal; Sundardas Kanyalal Bhathija v. Collector Thane (authorities cited)	Authorities about the principle that a coordinate Bench of the same High Court should not take a view contrary to an earlier Bench.	Considered by the court but found to be of limited application where the later Division Bench had relied on Supreme Court authorities and thus was followed.
A.I.R. 1972 S.C. 51; A.I.R. 1990 S.C. 261; A.I.R. 1968 S.C. 372 (Supreme Court authorities referenced on Full Bench procedure)	Refer to principles governing when a single Judge should refer matters to a Full Bench upon noticing conflicting decisions.	Discussed in the context of whether this matter should be referred to a Full Bench; the court concluded a Full Bench reference was not necessary because the later Division Bench had given a view based on Supreme Court decisions.
Sembayee v. Genga Naidu, 1989 T.L.N.J. 118 (F.B.)	Full Bench reference noted where an earlier Division Bench view was in conflict with a view approved by the Supreme Court.	Considered by the court when discussing Full Bench practice; distinguished from the present case where a later Division Bench had already laid down a view in light of Supreme Court authorities.
Unreported: Judgment dated 22-10-1987 of Venkataswami J. in W.P. No. 9138 of 1986	Noted by parties as suggesting reference to a Full Bench in light of a later Supreme Court decision which cast doubt on an earlier Division Bench view.	Mentioned by the court as part of the authorities considered on the question of whether to refer the matter to a Full Bench; the court did not refer the matter.

Court's Reasoning and Analysis

The court proceeded in a stepwise manner:

Correction of factual error: The court accepted the appellant's contention that the trial court was factually incorrect in holding that no relief was sought against the 8th defendant — the injunction relief was, in fact, also directed against the Commissioner (8th defendant). That factual error meant the Section 80 issue had to be treated seriously on appeal.
Identification of conflicting authorities: The court noted a direct conflict between two Division Bench decisions of the Madras High Court — the earlier Lakshmana Shah (1971 II M.L.J. 495 = 84 L.W. 828) holding that Section 80 notice is not required for a bare statutory suit under Section 70, and the later Executive Officer ... (1989 1 L.W. 361) which held the opposite, finding Section 80 notice mandatory for suits under Section 70.
Examination of surrounding single-Judge decisions: The court recorded that several single-Judge decisions had followed the 1971 Division Bench view (examples: Commissioner H.R. & C.E. v. Kacherichamy; His Holiness S.S.S.V.D.Y. Mahadesikan v. Commissioner; S.N. Chinna Kandar v. Commissioner).
Analysis of the reasoning in the later Division Bench (1989) decision: The court observed that the 1989 Division Bench had considered two Supreme Court authorities — State of Maharashtra v. Chander Kant (A.I.R. 1977 S.C. 148) and Sawai Singhai v. Union of India (A.I.R. 1966 S.C. 1068) — and had found them analogous and directly applicable. Those Supreme Court decisions supported treating the Commissioner as a "public officer" and the impugned order as an act "purporting to be done" by a public officer, thereby attracting the Section 80 notice requirement.
Consideration of which bench's view to follow: The court considered jurisprudence on what to do when co-ordinate or conflicting bench decisions exist. It discussed authorities (including Govindanaik and the Patna Full Bench in Amar Singh Yadav) concerning whether to follow an earlier or later decision and whether to prefer the decision that states the law more elaborately and accurately. The court concluded that the later Division Bench decision (1989) had relied on Supreme Court authorities and presented a fuller exposition; accordingly, the court felt bound to follow it rather than the earlier Division Bench view.
Disposition on Full Bench reference: The court considered whether to refer the conflict to a Full Bench. It reviewed examples where single Judges suggested such reference upon noticing a later Supreme Court view contrary to an earlier Division Bench view. However, because a later Division Bench (1989) had already laid down a view after relying on Supreme Court decisions, the court concluded that a Full Bench reference was not appropriate in the present case.
Conclusion on maintainability and locus: Applying the 1989 Division Bench reasoning, and recognizing the absence of a Section 80 notice in the present case, the court concluded the suit was not maintainable. The court also dealt with the appellant's locus to prefer the appeal and held that the 6th defendant could maintain the appeal because he was a party and the decree had been passed against him.

Holding and Implications

Holding:

APPEAL ALLOWED. The judgment and decree of the trial court are set aside and the suit is dismissed for want of a notice under Section 80, C.P.C.

Direct consequences: The plaintiffs' decree obtained in the trial court is vacated and the suit is dismissed. There will be no order as to costs.

Broader implications: The court expressly followed the later Division Bench decision reported at 1989 1 L.W. 361 (which had relied on Supreme Court authorities) and held that a Section 80 notice is mandatory for the maintainability of a suit under Section 70 of the Tamil Nadu H.R. & C.E. Act in circumstances where relief is sought against the Commissioner. The opinion does not purport to create a new precedent beyond following and applying the 1989 Division Bench decision; no separate Full Bench ruling was made.

Case identifier/internal note from the opinion: RR/KA/VCS

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The Executive Officer, Sri Kallalagar Devasthanam, Alagarkoil, Having His Office At Alagarkoil, Madurai. v. Tholappa Iyengar Alias Alagar Iyengar And 7 Others

The 6th defendant-Executive Officer of Sri Kallalagar Devasthanam, Alagarkoil is the appellant. The suit by the 1st respondent-2nd plaintiff and the deceased 1st plaintiff is for declaration that the plaintiffs are entitled to keep undial in the Samayamandapam constructed by the plaintiffs' ancestors for collections during Chitrai Festival and appropriate the said collections to themselves and for consequential permanent injunction against the defendants.

2. The 1st plaintiff died pending suit. His only heir was impleaded as the 7th defendant in the suit, who is the 7th respondent in this appeal. The said 7th respondent is not making any claim. The 2nd plaintiff alone pursued the suit claim.

3. The suit is admittedly under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ‘the Act’). Earlier, the plaintiffs sought the same relief before the Deputy Commissioner under S. 63(e) of the Act. But the said relief was negatived by the Deputy Commissioner. Subsequently, the Commissioner also confirmed the decision of the Deputy Commissioner. Hence the present suit was filed. The plaintiffs succeeded before the trial Court and the suit was decreed as prayed for.

3-A Inter alia in the suit, there was also the issue, whether the suit is bad for want of notice under S. 80 C.P.C?” The 8th defendant, who is the Commissioner, H.R & C.E, Madras, in his written statement opposed the suit, also alleging that the suit without issuing notice under S. 80.C.P.C, was not maintainable. But the trial court held that no relief as such, was asked for against the 8th defendant (8th respondent herein) and that, therefore, no such notice was necessary.

4. Now, in the present appeal, the learned counsel for the 6th defendant-appellant argues that the Court below has erred in deciding this issue and that if I concurred with him on the said issue he need not argue the appeal on its merits. He points out that the injunction relief is also against the 8th defendant and that the trial court factually erred in stating that no relief was asked for against the 8th defendant. This contention of his, is correct and the trial court is factually in error since the injunction relief is undoubtedly against the 8th defendant also.

5. The learned counsel for the appellant further submits that in view of the latest decision of a Division Bench of this Court reported in Executive Officer, Arulmigu Ranganathaswami Devasthanam v. H.H Srivan Satagopa Sri Vedantha Desika Yathindra Mahadesigan and others 1989 1 L.W 361 (which has held that notice under S. 80 C.P.C is necessary even for the statutory suit under S. 70 of the Act), the present suit itself is not maintainable and has to be accordingly dismissed.

6. But, the learned counsel for the 1st respondent-2nd plaintiff submits that contrary to the above referred to 1989-1-L.W. 361, another Division Bench of this Court earlier held in Lakshmana Shah v. Commissioner, H.R& C.E 1971 II M.L.J 495=84 L.W 828 that such a notice under S. 801 C.P.C was not necessary for the statutory suit under S. 70 of the Act and that, therefore, this question has to be referred to a Full Bench. He also submits that this appeal itself was not maintainable by the 6th defendant-Executive Officer when defendants 1 to 5, who are respondents 2 to 6 herein and who are the trustees of the temple in question, did not choose to prefer an appeal against the decree of the trial court. In other words, according to him, the 6th defendant-Executive officer has only to assist the said trustees in the administration of the temple and that the temple administration vests only with the said trustees and not with the said Executive Officer and so when the trustees have not chosen to prefer the appeal, the Executive officer cannot be considered as a person who could prefer this appeal But, without going into the question of the actual role played by the Executive Officer vis-a-vis the trustees in the Administration of the trust, I have no difficulty in holding that since he was a party to the suit and since the relief was granted against him also he can certainly maintain this appeal.

7. Nextly, coming to the above said question of notice under S. 80, C.P.C no doubt I find that the decision in 1989-1-L.W. 361 referred to above conflicts with the above said decision in 1971 II M.L.J 495. There are also other decisions of single Judges of this Court following the above said 1971 H.M.L.J 495. They are (1) Commissioner H.R& C.E v. Kacherichamy, (2) His Holiness S.S.S.V.D.Y Mahadesikan v. Commissioner, H.R&C.E (it was this decision which was reversed in 1989-1 L.W 361 D.B referred to above) and (3) S.N Chinna Kandar v. Commissioner, H.R& C.E I.L.R 1980 II Madras 213, Madras.

8. In (1971) II M.L.J 495 = 84 L.W 828 referred to above no doubt there was not much discussion on this point. It was simply stated thus; No notice under S. 80, C.P.C is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions of the Act. Even assuming that such a statutory suit could be combined with a suit in which the applicability of the Act to the suit temple is challenged, the requirements of the valid institution of the later suit should be complied with.” In the above said (1981) I M.L.J 375 = 94 L.W 555 also I find that the above said passage in (1971) II M.L.J 495 = 84 L.W 828 was referred to and the decision in (1971) II M.L.J 495 = 84 L.W 828 was explained as follows:—

“Thus, it would be seen that it was a mete statutory suit for setting aside the order of the Commissioner, but reliefs which are beyond the scope of a suit under S. 70 of the Act were also sought, and, therefore, the learned Judge held that even if a statutory suit could be combined with a suit in which the applicability of the Act to the suit temple is challenged, the requirements of a valid institution of the latter suit should be complied with. In other words, a notice under S. 80, Civil Procedure Code, in respect of the latter suit is mandatory.”

So, if the suit was a mere statutory suit, no such notice was necessary according to the above referred to (1971) II M.L.J 495 = 84 L.W 828 (D.B and 1981 II M.L.J 375 = 94 L.W 555.

9. However, the learned counsel for the 1st respondent-2nd plaintiff points out that the above said latest decision 1989-1-L.W. 361 (D.B) liscusses; the question fully and elaborately and, relying, on two Supreme Court decisions in State of Maharashtra v. Chander Kant AIR 1977 S.C 148 = 90 L.W 88 S.C S.N and Sawai Singhai v. Union of India AIR 1966 S.C 1068, has held that such notice was necessary for the maintainability of the suit under S. 70 of the Act. According to S. 80, C.P.C no suit shall be instituted against the Government or against a “public officer” in respect of any act purporting to be done.” by such public officer in his official capacity, until the expiration of two months next after notice in writinghas been given to the government or the public officer as the case may be. So, the question is whether the Commissioner is a “public officer” and whether the suit against the Commissioner under S. 70 of the Act can be said to be in respect of any “act purporting to be done” by the Commissioner. The Division Bench in 1989-1-L.W. 361, after holding that the Commissioner was a public officer has also held, relying on A.I.R 1977 S.C 148, referred to above that the suit against the Commissioner is in respect of “any act purporting to be done” by the Commissioner. In A.I.R 1977 S.C 148, the suit was filed against the order under S. 5 of the M.P Public Trust Act, 1951. Under that Act, the Registrar of the Public Trusts, on application by any person for registration of the public trust, shall make an enquiry as contemplated in S. 5 of the Act and record his findings with reasons and any person aggrieved by any finding of the Registrar may, within six months from the date of the publication of the notice institute a suit in a civil court to have such finding set aside or modified. The question arose whether in such a suit notice under S. 80 C.P.C to the Registrar was necessary. It was held by the Supreme Court that the Registrar was a public officer and his order was an act purporting to be done in discharge of his official duties and that, therefore, notice under S. 80 C.P.C was necessary. The Division Bench in the above said 1989-1-L.W. 361 held that the facts in the abovesaid A.I.R 1977 S.C 148 were “quite analogous” to the facts in the case before it and so the Division Bench held that notice under S. 80 C.P.C was necessary for the maintainability of the suit under S. 70 of the Act also.

10. One of the arguments advanced before the said Division Bench was that the order against which the suit was filed, had been passed by the Commissioner himself, that he knew that a suit could be filed against him, that no useful purpose would be served by giving him notice under S. 80, C.P.C and that therefore, in a case like this the Legislature would not have intended notice under S. 80. C.P.C Dealing with this arguments, the said Division Bench after observing that in view of the above said decision in AIR 1977 S.C 148 the said question need not be considered, it also pointed out that another decision of the Supreme Court reported in Sawai Singhai Nirtnal Chand v. The Union of India directly covered the said question. In that case, the question was whether in a suit under O. 21, R. 63, C.P.C against the Government, a notice under S. 80 C.P.C was necessary. In that context it was argued that the suit was only a continuation of the attachment proceedings, that therefore the Government already knew that a suit might be filed against it and the purpose of giving a notice under S. 80 C.P.C (viz., giving an opportunity to the Government to consider whether the claims against it could be settled or not) did not arise, and that therefore notice under S. 80 C.P.C was unnecessary. This contention was negatived by the Supreme Court stating that the contention was inconsistent with the plain categorical and unambiguous words used in S. 80 C.P.C Therefore, based on these two Supreme Court decisions, the Division Bench in the above said 1989-1-L.W. 361 came to the conclusion it reached.

11. Though it may be said that this later Division Bench which decided the above said 1989-1-L.W. 361, did not expressly refer to the earlier Division Bench judgment in the above said (1971) II M.L.J 495 = 84 L.W 828, it should be noted that the decision in the above said 1989-1- L.W 361 is only in appeal against the above referred to single Judge decision reported in (1985) I M.L.J 82 = 98 L.W 303, which had referred to the above referred to (1971) 2 M.L.J 495 = 84 L.W 828 (D.B) So, though the decision reported in the above said 1989-1-L.W. 361 does not expressly refer to the earlier Division Bench decision reported in the above referred to (1971) II M.L.J 495 = 84 L.W 820, it could be safely concluded that the earlier Division Bench decision also was taken note of by the later Division Bench. (The decision in the above said 1989-1-L.W. 361 reversed the decision in the above said (1985) I M.L.J 82 = 98 L.W 303).

12. I may also point out that in one other earlier decision of mine (Judgment dated 5-9-1990 in A.S No. 230 of 1981) I have held, following the above said Division Bench judgment reported in 1989-1-L.W. 361, that notice under S. 80 C.P.C was absolutely mandatory and condition precedent to the maintainability of the suit under S. 70 of the Act. No doubt, in deciding the said appeal, the above said earlier Bench Judgment reported in the above said (1971) II M.L.J 495 = 84 L.W 828 or similar decisions were not brought to my notice.

13. But, in the present appeal, those earlier decisions have been brought to my notice. So only, the question now is which of the two views I should follow and whether I should refer the matter to a Full Bench. The learned Counsel for the appellant drew my attention to Govindanaik v. West Paten Press Co., wherein it was held by a majority of 3:2 that if two decisions of the Supreme Court on a question of law cannot be reconciled and if both Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other courts. Therefore, the learned counsel for the appellant contends that I should follow the later Division Bench Judgment, viz. the above said 1989:1-L.W. 361 (D.B) In the said Karnataka decision the minority view expressed by two of the total five judges, is that in the above situation of conflicting decisions of two Benches of the Supreme Court of equal number of judges, the High Court “ought to follow that which is better in point of law” and not that which is earlier in point of time. I also find that, while, for the above said minority view, reasons have been given, for the majority view no reason has been given. This is also noticed in the decision reported in Amar Singh Yadav v. Shanti Devi (vide paragraph 18 thereof) which concur with the said minority view in the above referred to AIR 1980 Karnataka 92 (F.B). Further Neyveli Lignite Corporation Ltd. v. Spl. Tliasildar No. III, Land Acquisition was also brought to my notice, where it was argued that where there was a conflict between two decisions of Supreme Court, the decision which stated the law more elaborately and accurately should be followed. In support of this proposition, the above referred to judgment of a Full Bench of the Patna High Court reported in Amar Singh Yadav v. Shanti Devi was also relied on before the learned Judge, who heard the above said 1988-2-L.W. 79. The Full Bench in the above said A.I.R 1987 Patna 191 does hold that where there is a direct conflict between two decisions of the Supreme Court rendered by co-equal Benches, the High Court must follow that judgment which appears to it to state the law more elaborately and accurately. Applying the same reasoning even when there is conflict between the views of two Division Benches of this High Court, I think I should follow only the above said 1989-1-L.W. 361 (not simply because the said decision is later in point of time).

14. No doubt the decisions cited by the learned Counsel for the 1st respondents-2nd plaintiff, viz., V.R.G & G.O.M.C Co. v. State of Andhra Pradesh. Tribhovandas v. Ratilal and Sundardas Kanyalal Bhathija v. Collector Thane may not strictly apply to the present situation, where the question is which of the two conflicting views of two differing; Division Benches of this Court it should follow. In the above said A.I.R 1972 Supreme Court 51 and A.I.R 1990 S.C 261 it has been no doubt held that one co-ordinate Bench of the same High Court cannot take a view contrary to the decision given earlier by another Bench of that Court. Further, in the above said A.I.R 1968 Supreme Court 372 and also A.I.R 1990 S.C 261 it was no doubt observed that if a single Judge finds two conflicting decisions of the same court, he may pass an order for the papers to be placed before the learned Chief Justice with a request to form a Full Bench to resolve the conflict. But, in the present case, the later Division Bench which decided the above said 1989-1-L.W. 361 relied on two Supreme Court decisions and came to the conclusion it reached. Therefore, I have necessarily to follow the same.

15. The learned counsel for the 1st respondent-2nd plaintiff also drew my attention to the unreported decision dated 22-10-1987 of Venkataswami J. in W.P No. 9138 of 1986.where the learned Judge held that in the light of a Supreme Court decision it was doubtful whether an earlier view of the Division Bench of this Court was correct and so he suggested reference to a Full Bench. In the other decision of a Full Bench of this Court, viz., Sembayee v. Genga Naidu 1989 T.L.N.J 118 F.B cited by the learned counsel for the 1st respondent-2nd plaintiff, it was no doubt mentioned that the matter in question therein was referred to the said Full Bench since the learned single Judge who heard the matter earlier noticed that the view of the Bombay High Court which was approved by the Supreme Court was contrary to an earlier Division Bench judgment of this Court. But, it should be noticed that in the above referred to two decisions the learned single Judge in each of them, suggested reference to a Full Bench only because he noticed a later Supreme Court view contrary to an earlier Division Bench view of this Court. But here on the question before me, I find that a later Division Bench of this Court (which decided 1989-1-L.W. 361) thought it fit to lay down a different view (different from that of the earlier Division Bench though not specifically referring to it) in the light of two Supreme Court decisions). While so, I feel I cannot and should not sit in Judgment with its reasoning or the view it had taken and the question of my suggesting reference to a Full Bench does not therefore arise. Therefore, I think, I should only follow the decision of the later Division Bench, viz., 1989-1-L.W. 361. Therefore, I hold that notice under S. 80 C.P.C having not been given, the suit itself is not maintainable.

16. In the result, the appeal is allowed, the judgment and decree of the Trial court are set aside and the suit is dismissed. But in the circumstances of the case, there will be no order as to costs.

RR/KA/VCS

The Executive Office... v. Tholappa Iyengar Ali...