(1.)The appeal and the petitions arise from the order of Raman Nayar, J. dated the 12th February, 1963, dismissing O. P. No. 2306/62. That was a petition by one Madhavan Nair, Manager of Pulpalli Devaswom, for quashing an order of the Commissioner, Hindu Religious and Charitable Endowments, placing him under suspension and appointing another in his place. The first respondent to the petition was the Commissioner, Hindu Religious and Charitable Endowments, Kerala. The appellant in the appeal who is also the petitioner in the two petitions was the Commissioner at the time of passing the order of suspension and he continued as such only till 19-10-1962. The main ground urged in the original petition was that the order of suspension was actuated by malafides. According to the petitioner in the original petition, the appellant was directing the disposal of valuable forest lands and timber belonging to the Devaswom to his nominees, in violation of law; the petitioner did not agree to some of his proposals and was thus "a stumbling block in his way" and this was the real reason for the order of suspension. Raman Nayar, J. held that the charge of malafides was not true inasmuch as the petitioner in the original petition never stood in the way of the Commissioner in the matter of disposal of the land and timber. The other ground, namely, that the order was passed without jurisdiction, was also found against and the original petition was dismissed. However in considering the charge of malafides, Raman Nayar, J. observed that there were grave irregularities in the matter of disposal of the land and timber belonging to the Devaswom and that it was improper for the Commissioner who was to exercise a general power of superintendence over the acts of the Trustees to have initiated certain proposals for the grant of land and timber and to have acted in the manner referred to in the order. The learned Judge observed:
"I am, however, tempted to observe that reasons however compelling, and administrative decisions, however high the level at which they are taken cannot alter the law, or the fact that the 1st respondent Commissioner, who is by law charged with the duty of seeing that endowments coming within the scope of the Act are properly administered and that the trustees do their duties faithfully and properly, has been taking an undue interest in the disposal of very valuable properties belonging to the Devaswom in favour of particular persons leading, literally, to the charge of nepotism, and that he has been directing disposal otherwise than in accordance with the law."
(pp. 26-27, para 17)
Although it was stated in the order that the court was not directly concerned with the conduct of the first respondent in the original petition, it was also observed that the case
"has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which, I trust due notice will be taken by the competent authority in the interests of the public administration and preservation of our forest wealth no less than in the interests of this particular institution."
This is the order which has given rise to the appeal before us. C. M. P. No. 2264 of 1963 is a petition for leave to appeal from the order and C. M. P. No. 3852 of 1963 is for converting the appeal into a petition if the appeal is found to be not maintainable.
(2.)When C.M.P.No.2264 of 1963 came before a Bench notice was ordered to the Advocate General who appeared and rendered great assistance to us in deciding the matter. Notice was ordered to the respondents in the petition, but except the Government Pleader who appeared for the Commissioner and the petitioner in the Original Petition, the others did not choose to appear.
(3.)The first question for consideration is whether leave to appeal should be granted. It is admitted that the appellant was not eo nomine a party to the original petition. The Commissioner is a corporation sole under S.80 of the Madras Hindu Religious and Charitable Endowments Act, 1951. As Commissioner, the appellant was a party to that petition until he ceased to hold that office on 19-10-1962, so that subsequently and at the hearing of the original petition he was not a party. The fact that the appellant filed certain affidavits even after 19-10-1962, perhaps in support of or in continuation of prior affidavits would not make him a party to the proceeding (See Mahi Chandra v. Secretary, Local Self - Government, AIR 1952 Assam 119). The Code of Civil Procedure does not provide who can prefer an appeal. A party to a proceeding has a right to prefer an appeal when such appeal is allowed by law. As to whether a person who is not a party can file an appeal under such circumstances, courts in India have been following the practice of the Chancery Court, which is summarised in Halsbury's Laws of England as follows:-
"Any of the parties to an action or matter and any persons served with notice of the judgment or order may appeal (by leave, where leave is necessary). A person who is not a party and who has not been served with such notice, cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal." Vol. 30, p. 461.
The dictum of Lindley, L. J. in In re Securities Insurance Co. (1894 (2) Ch. 410) which has been followed by the High Courts in India is extracted below:
"Now what was the practice of the court of Chancery before 1862, and what has it been since I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal."
We may mention here some of the decisions in which this principle has been followed: Bombay Province v. W. I. Automobile Association (AIR 1949 Bom. 141), Heersingh v. Veerka (AIR 1958 Rajasthan 181) & Shiyaraya v. Siddamma (AIR 1963 Mys. 127). This court also adopted this view in Executive Officer v. Raghavan Pillai ( 1960 KLT 939 ). It has also been pointed out in these decisions that the question whether such leave should be granted or not is a matter which lies in the discretion of the court of appeal and that no hard and fast rule can be laid down in the matter, the decision in each case depending upon its own facts and circumstances. We may observe that one test in granting leave is whether he could properly have been made a party to the original proceeding. The following passage in Seton on Judgments may with advantage be extracted:
"Leave will not be given unless his interest is such that he might have been made a party." Vol. 1, p. 825.
This principle may be gathered from In re B., an Infant (1958 (1) QB 12). The Advocate General while contending that the appellant must be held to be a party to the original petition was prepared to grant that in the circumstances of the case the appellant could have been made eo nomine a party; we also entertain no doubt that he might have been so made a party. It may therefore be taken as settled law that a person who is not a party to the decree or order may with leave prefer an appeal from such decree or order.