Devan Ramachandran, J.A suit stands dismissed by the trial court as being not maintainable, against which this appeal has been made before this court - A rather ubiquitous scenario which appear quotidian.

2. However the appellant alleges that the suit was so dismissed by the court below even though no issue as to maintainability had been framed and though the defendants in the suit had not requisitioned such issue to be framed. The appellant alleges that the suit was tried without such an issue being framed and, therefore, that the court below has erred in condemning the suit as being not maintainable.

3. The plaintiff in a suit filed for injunction and damages is the appellant in this appeal.

4. The appellant filed O.S.No.18 of 2007 on the files of the Sub Court, Pathanamthitta claiming that his machinery, which includes a copra drying unit, that was permitted to be installed in the premises of the holy Sannidhanam of the Sabarimala Temple by the Travancore Devaswom Board (for short the Board), was being attempted to be removed forcefully and that in such process he had sustained certain amount in loss and damage. Essentially on such allegations, the suit was instituted initially before the vacation court, viz. the District Court, Pathanamthitta, to be filed before the Munsiffs Court, Ranni. The suit was originally numbered as O.S.No.1 of 2004. To begin with, the prayer was for injunction simplicitor. The plaint was thereafter amended by the appellant to bring in a claim for an amount of Rs. 25,00,000/- as damages on the allegation that his copra drying unit and other infrastructure had been demolished and deracinated by the Board. The suit was thereafter transferred to the Sub Court, Pathanamthitta and numbered as O.S.No.18 of 2007.

5. The respondents in their written statement filed in the court below, took a contention that since no notice was issued by the appellant to them, under the mandate of section 55 of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as the), prior to the institution of the suit, the suit itself became incompetent and incapable of prosecution. Since the hypothesis of the respondents case rests on section 55 of the Act, it would be profitable to read the said section and therefore we extract the same as under:

"55. Suits.No suit shall be instituted against the Board or the executive officer of the Sree Padmanabhaswamy Temple until the expiration of two months after a notice in writing has been delivered or left at the office of the Board, or of the executive officer, as the case may be, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left."

6. As we have already indicated above, the suit originally was filed by the appellant praying for a decree of injunction simplicitor. It is alleged by the appellant that at the time when that suit was pending, attempts were made by the Board to remove the machinery and infrastructure, on the allegation that the sanction given to the appellant for such purpose had been withdrawn by them and that notices had been issued to him on 23.9.2003 and 26.9.2003 directing him to remove the machinery from the premises and to vacate himself. When the appellant did not do so, it appears that the respondents took action for removing the articles and in causing the plaintiff to be vacated from the Sannidhanam premises. On such events happening, the appellant transpires to have amended the plaint to bring in a claim for damages, alleging that he had sustained loss to the tune of Rs. 25 Lakhs on account of the alleged illegal action of the Board.

7. The respondents/defendants filed a written statement, as stated above, wherein, in support of the jurisdictional objection raised by them, stated that no notice under section 55 of thewas issued before the suit was instituted. They also asserted very specifically that even though the appellant was asked, by two notices dated 23.9.2003 and 26.9.2003, to remove himself and his machinery from the Sannidhanam premises, he had refused to do so, constraining them to take such action as was warranted, in order to obtain his eviction from the premises.

8. On these set of allegations between the parties the court below framed the following issues:

"1. Whether the plaintiff is entitled to claim an amount of Rs. 25,00,000/- as damages from the defendants.

2. Whether the defendants are restrained from forcefully evicting the plaintiff

3. Reliefs and costs

It is interesting to note that when issues were so framed as above, the question as to whether the suit was maintainable on account of the non issuance of a notice under section 55 of thewas not specifically raised. We say this at this point because this is very pertinent for the resolution of the dialectical contentions of the parties in this appeal. We will deal with it in detail slightly lower in this judgment.

9. On the issues having been framed thus, the court below took the suit to trial and the appellant got himself examined as PW1 and he examined four other witnesses as PWs.2 to 5. He also produced and marked Exts.A1 to A6 on his side to show that he had permission from the Board to install and to maintain his machinery at the Sannidhanam premises. Au contraire, the respondents marked Exts.B1 to B3 documents and caused the Assistant Executive Officer of the Board to be examined as DW1. The court below also marked Exts.C1 to C10 documents, which were the commission reports and expert reports obtained by it for assessment of the alleged damage claimed by the appellant. The court below, though made an appraisal and evaluation of the pleadings on record and evidence available, did not affirmatively conclude on any of the issues framed, but proceeded to dismiss the suit finding it to be not maintainable.

10. On the issue as to whether the appellant is entitled to claim an amount of Rs. 25,00,000/- as damages from the respondents, the court below, though having adverted to the case of the respondents that the appellant was at fault in continuing to remain in possession of the premises and in not removing the machinery in spite of termination of the contract and in spite of the fact that notices were issued to him, however did not conclude on this in the impugned judgment.

11. On the issue whether the respondents ought to be restrained from forcibly evicting the appellant, the court below again recorded the contention of the respondents that no such prayer can be granted in favour of the appellant since he was not continuing in possession in terms of the contract or in terms of the sanction that was granted to him earlier, but did not decide whether such compensation deserved to be awarded or otherwise.

12. After recording the divergent assertions and allegations of the parties, the court below thereafter proceeded to consider the question as to whether the non issuance of a notice under section 55 of thewould be fatal to the case of the plaintiff.

13. We must notice here that though not raised specifically as an issue for trial, this question was considered quite in detail by the court below and it went on to hold that since section 55 is a mandatory provision, no suit could have been instituted against the Board without a notice under it being issued by the appellant and thus thought it fit to dismiss the suit rationalising that the suit was incompetent and without legs to stand on in the absence of a prior notice under section 55 of the. It is in challenge against the judgment and decree of the court below that this appeal has been filed.

14. We have heard Sri G. Shrikumar, learned senior counsel, assisted by Sri S. Jayakrishnan, counsel appearing for the appellant and Sri Krishna Menon, learned Standing Counsel for the respondents.

15. From the judgment of the trial court we notice that it had considered the reports of the Advocate Commissioner deputed by it, viz. Exts.C6 and C7 wherein the learned Commissioner had noticed that detriment had been caused to the copra drier unit and the infrastructure established by the appellant. The learned Commissioner is also seen to have found that the motor and the drier unit had been substantially damaged in the action of the Board while removing the same and that consequential loss had been occasioned to the appellant by the respondents.

16. The stand of the Board before the court below, as was also the evidence led by them, was that the damage calculated by the expert engineer is not correct and that the valuer did not cause the valuation with reference to the figures applicable to the period when the alleged damage had occurred. The Board also had a case that the appellant had installed the drier without permission and that he was in occupation of the plant and infrastructure for the last 20 years without proper sanction. According to the respondents, Ext.B3 is a document which shows that the period of contract between them and the appellant was only for one year and that no document has been produced by the plaintiff to show that he had obtained any further permission from the Board to continue in occupation. The respondents vehemently contended that they had issued a proper notice to the appellant to remove the drier machine and shed from the Sannidhanam premises, as per Ext.A3 and that action was taken by them subsequently to remove the drier machine and attendant infrastructure.

17. As we have indicated above, after the court below recorded the contentions of the respondents that the appellant was at fault and that he was guilty of not having removed himself from the premises in spite of acceptance of notices to do so, it declined all the prayers made by the appellant including the prayer for compensation, not on the basis of any finding on these issues, which it did not do, but holding that the suit was not maintainable. It is on that basis alone and no other that the court below went on to dismiss the suit holding that none of the prayers can be granted in a suit which is incompetent and without forensic sustenance. The court below in entering into such conclusion was obviously swayed by the terms of section 55 of the.

18. While examining the validity of the view of the court below, what is pertinent is that issues were framed by it after pointedly noticing the pleadings of the parties. The issues, as we have already extracted above, did not contain an issue whether the suit was maintainable on account of lack of notice under section 55 of thethat ought to have been issued by the appellant. The respondents were aware that issues had been so framed and they participated in the trial knowing fully well that an issue as to whether the suit is maintainable or not had not been raised by the court below. They had a right under Order 14, Rule 5 of the Civil Procedure Code to require amendment of the issues or to apply to frame additional issues by the court below, on such terms as could have been found fit, if they had a case that section 55 of thewould operate fatally against the appellant. This was not done. The respondents had voluntarily participated in the trial knowing fully well that the issues framed did not contain the issue regarding maintainability of the suit. The court below, in spite of this, considered the question of maintainability solely in reaction to the submissions of the counsel for the respondents that a notice under section 55 of thehad not been issued by the appellant, when the matter was finally heard after trial.

19. The course adopted by the court below, in our certain opinion falls foul of Order 14, Rule 2 of the Civil Procedure Code. The said Rule obligates the court to try issues relating to jurisdiction or relating to a bar to the suit as a preliminary one and only thereafter to deal with other issues of facts. The rule referred reads as under:

"2. Court to pronounce judgment on all issues.



(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case of any par thereof may be disposed of on an issue of law only, it may try that issue first if that issue relating to



(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force."

20. It is, therefore, indisputable that where issues of law and facts are framed in a suit, those relating to law, if it relates to jurisdiction and bar to suit, be tried first. In this case, strangely, no issue was framed with regard to law and the court below proceeded to try the issues of facts but to dismiss the suit on a question relating to jurisdiction, though no such issue had been framed at all.

21. Further, the evidence on record marked during trial would show indubitably that the intent of the parties was to obtain adjudication of the disputes between them on merits, without impelling a preliminary defence that the suit was not maintainable. This view is inevitable because evidence was led by the parties, both oral and documentary, in defence of their claims and contentions but not on the question as to whether the suit is maintainable.

22. We are, therefore, of the opinion that the court below, in having considered the question whether the suit is maintainable, after the trial was over and evidence completed; but when the judgment was delivered, has acted in excess of jurisdiction and without legal sanction. We say this more because, had the appellant been alerted that an issue has been raised as to whether the suit is maintainable, he could have then answered this properly or could have even withdrawn the suit to initiate a fresh one after issuing a proper notice. On the contrary, even without framing or raising such an issue, the court below went on to hold that the suit is not maintainable even though the respondents did not assail the non-framing of an issue in this regard and were fully aware that no such issue was framed requiring trial.

23. This is glaring because, had the respondents any intention of contesting the suit as not being maintainable, they ought to have used the right available to them under Order 14, Rule 5 of the Civil Procedure Code and their refusal or failure would only indicate that they had given up their right. Section 55 of theindisputably provides a right that has been statutorily given to the Board, which saves it from unnecessary litigation. However, in the case at hand, even though they had raised such a contention in their pleadings, they had not disputed or contested the issues that were framed by the court, wherein the question of maintainability was not one included. They went to trial knowing fully well that the question regarding maintainability was not an issue. We have, therefore, to necessarily infer that they had no objection against the maintainability and that they had acquiesced the court below in going on with the trial and resolving the issues on its merits without recourse to the defence that the suit is not maintainable.

24. Sri V. Krishna Menon, learned counsel appearing on behalf of the Board, however asserts that section 55 of theis a mandatory provision and that without the plaintiff complying with its terms, the suit cannot be found to be maintainable. He says that this is an issue relating to jurisdiction and that no amount of acquiescence can confer jurisdiction in a suit which is otherwise incompetent. We are afraid that this submission of Sri. Krishna Menon does not obtain our approval because it is settled by several judgments including the decision of a Division Bench of this court in Ambattukavu Bhagavathy Kshethra Samithy v. Travancore Devaswom Board and others (2016 (5) KHC 321 [LQ/KerHC/2016/1348] ), that the purpose of issuing statutory notices are normally for the purpose of cautioning the public authority about the possibility of instituting a suit and to resolve it, if possible, without recourse to a litigation. The Division Bench, in the judgment cited, has held that this is intended to enable the public authority to take remedial measures, if necessary, to avoid litigation in public interest and that it is further intended to caution the public body, which is otherwise engaged in multifarious activities, to apply its mind on the cause of action and to take necessary action considering the possibility of inconvenience that may be caused to it if an ex parte interim order is passed.

25. In the case at hand, it is obvious that not only had the defendants not raised any objection regarding the maintainability of the suit when the trial began, but they had participated in the trial fully and had led evidence against the merits of the claims made by the appellant. If that be so, the fact that no notice was issued under section 55 of theprior to the institution of the suit would be of no avail. We say this because the respondents were aware of the cause of action pleaded by the appellant and they were aware as to the claims made and the precise nature of the litigation that was pursued by the plaintiff in the suit. In the absence of any contest to the issues that were raised, which did not contain an issue regarding maintainability of the suit, we are of the firm opinion that the defendants could not have been heard to say that the suit is not maintainable and that the prayers cannot be granted on such ground alone.

26. In such view of the matter and for the observations that we have made above, we are certain that the court below has misdirected itself in finding that the suit itself is not maintainable merely because a notice under section 55 of thewas not issued. The court below itself had not framed any issue on maintainability of the suit and did not, therefore, require to consider maintainability or otherwise of the suit from the touchstone of section 55 of the Act, because any such consideration should have been preceded by the framing of an issue, which would have alerted the party to lead evidence on such issues also.

27. For the reasons above and on a conspectus of what we have stated above, we have no other option but to set side the decree and judgment passed by the court below in O.S. No.18 of 2007 and to remand the case. We direct the court below to re-hear the matter without conducting a fresh trial, on the basis of the evidence and materials already before it on the issues raised in the trial but without adverting to the question as to whether the suit is maintainable or otherwise. We hold that the suit is maintainable on account of the fact that the defendants have raised no objection to the issues framed, which, as stated above, does not include one relating to the maintainability of the suit. The court below will, therefore, in terms of this judgment, re-hear the matter and enter into a fresh decision unhindered by anything that has been stated by it earlier, since we have already set aside the judgment to pave way for a fresh consideration of the matter in terms of this judgment.

28. There is also an equally compelling additional reason why we will have no other option but to remand the matter to the court below. This is because Order 14, Rule 2 (1) CPC mandates that notwithstanding that a case may be disposed of on a preliminary issue, the Court will have to pronounce judgment on all issues. A provision that is very similar to his Rule is available in the Civil Rules of Practice, namely Rule 110, which also prescribed that except where a suit is disposed of under Order 14, Rule 2 of the CPC, the Court will be obligated to record the findings on all issues framed, even though the decision on some of them would be sufficient to dispose of the suit.

29. In the present case, as we have already recorded above, the irony is that the suit has been dismissed without the court entering into findings on any of the issues raised and framed, but on the basis of the conclusions arrived at on a question which was never framed or raised as an issue. We cannot approve this and we have to, therefore, remand the matter so as to enable the court to enter into findings and pronounce judgment on all the issues that were framed by it.

30. In order to enable the court below to have an expeditious final consideration of the suit, we direct the parties to appear before the court below through counsel on 17.7.2017.

31. Since we have disposed of this appeal by remanding the the suit to the court below for fresh consideration, we direct the Registry to return the court fee paid by the plaintiff on the memorandum of appeal to him on his application.