Govind Ram Goswami And Another vs Maya Devi
2022 Latest Caselaw 10363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6372 of 2022
 

 
Petitioner :- Govind Ram Goswami And Another
 
Respondent :- Maya Devi
 
Counsel for Petitioner :- Ashutosh Sharma,Abhilasha Singh,Rahul Yadav
 
Counsel for Respondent :- Ashish Srivastava,Lalit Kumar Shukla
 

 
Hon'ble Piyush Agrawal,J.

Supplementary affidavits, filed today, are taken on record.

Heard Sri Ashutosh Sharma, learned counsel for the petitioners and Sri Shashi Nandan, larned Senior Counsel assisted by Sri Lalit Kumar Shukla, learned counsel for the respondents.

The instant petition has been filed for setting aside the order dated 04.08.2022 passed by the District Judge, Mathura in Misc. Civil Appeal No. 53 of 2022 (Smt. Maya Devi Vs. Govindram Goswami & others), by which the dispute has been referred to the mediation.

On 16.08.2022, following order was passed by this Court:-

"Learned counsel for the petitioners submits that there is a Temple popularly known as 'Thakur Shri Ladli Ji Maharaj Mandir' situated in Barsana Town, Tehsil Gowardhan/Chhata, District Mathura. The said temple is run by 3 Shebait Thoks namely, Baba Thok, Laxman Thok and Akshayram Thok. According to bye-laws the petitioners were given charge of shebait from 27.4.2022 to 20.10.2022 for conducting pooja, archana and other services to deity.

The sole respondent filed Original Suit No. 128 of 2022 along with temporary injunction application under order XXXIX Rule 1 & 2, CPC. On the said application an ex parte interim injunction was granted on 6.5.2022. On 10.5.2022 an application was moved seeking police assistance for ensuring the order dated 6.5.2022. Thereafter the petitioners were forcibly removed with the aid of police administration on 11.5.2022.

The petitioners filed objection to the temporary injunction application and by order dated 28.7.2022 the trial court rejected the temporary injunction application of the respondent. Against the said order the respondent preferred Appeal No. 53 of 2022 before the District Judge, Mathura in which on 4.8.2022 an interim order has been passed fixing 23.8.2022 the next date of hearing.

Learned counsel for the petitioner submits that the impugned order dated 4.8.2022 has been passed in gross violation of the procedure prescribed in the U.P. Civil Procedure Alternative Dispute Resolution Rules, 2009. He further submits that before referring the matter to the Mediation Centre neither the consent of the petitioners was taken nor any notice was given. In support of his submission he has relied upon the judgments of the Karnataka High Court in Smt. Seethamma vs. Sri Lakshmegowda (Writ Petition No. 42018 of 2011 decided on 20.4.2012 and in Chanchal Ghosh vs. Tripura Truck Owners Syndicate (2015) AIR (Tripura) 1.

Rebutting the submission of the learned counsel for the petitioners, learned senior counsel for the respondents submitted that injunction application has wrongly been rejected by the trial court without considering the judgment of the Apex Court dated 17.11.2020 passed in Special Leave Petition (Civil) No. 18169 of 2020. He further submits that in another Suit No. 900 of 2019 the Civil Judge (J.D.) Mathura by order dated 21.2.2022 appointed a receiver for conducting pooja, archana and other services to deity, therefore, appointment of the petitioner is totally in violation of the said order and any order appointing the petitioner for conducting pooja, archana and other services to deity is without authority of law. He placed reliance of the order dated 21.2.2022 passed in Suit No. 900 of 2019 whereby the petitioner no.2 has been shown as additional receiver.

In the aforesaid circumstances learned counsel for the parties may bring on record the order dated 21.2.2022 passed by the Civil Judge (J.D.) Mathura in Case No. 900 of 2019 by way of a supplementary affidavit by tomorrow. "

Pursuant to the order dated 16.08.2022, the parties have filed supplementary affidavits bringing on record the order dated 21.02.2022 passed in Original Suit No. 900/2019; whereby, Receiver/Additional Receiver were appointed.

Learned counsel for the petitioners submits that vide order dated 21.02.2022 passed in Original Suit No. 370/2009, which was renumbered as Original Suit No. 900/2019, the Civil Judge (JD), Mathura appointed Receiver/Additional Receiver issuing certain directions, which were only confined to the financial aspect and safeguard of the financial matter of the temple and there was no prohibition or restriction so far as appointment of Shebait Thoks for performing pooja and archana in the temple. He further submits that the Original Suit No. 128/2022 was filed with a specific prayer that the plaintiff - respondent may be permitted to perform pooja/archana in the temple in question, but the injunction application filed along with the suit was rejected, against which Misc. Civil Appeal No. 53/2022 was preferred by the respondent.

On 04.08.2022, an interim order was passed referring the matter to the mediation without the consent of the defendant - petitioner or giving any notice for the same. Learned counsel for the petitioner once again reiterates that the procedure as prescribed under section 89 of the CPC was not followed. Further, the procedure as prescribed in U.P. Civil Procedure Alternative Dispute Resolution Rules, 2009 was also not followed. Therefore, he prays for setting aside the impugned order.

Confronted with the said submission, learned Senior Counsel submits that the injunction order was recalled in gross violation of the order dated 17.11.2020 passed by the Supreme Court in Special Leave Petition (Civil) No. 18169 of 2020. He further submits that the right of the plaintiff has been taken away without following due procedure. Therefore, suit has been instituted, along with the interim injunction application, which has wrongly been rejected, against which Misc. Civil Appeal was preferred and by the impugned order, the matter was rightly referred to the mediation protecting the interest of the parties. He prays for dismissal of the petition.

The court has perused the record.

The impugned order dated 04.08.2022 has been passed without adhering to the procedure as prescribed under 89 of CPC. Further, the record shows that the procedure prescribed under the U.P. Civil Procedure Alternative Dispute Resolution Rules, 2009 has also not been adhered to. The matter was referred to the mediation without the consent of the defendant - petitioners and therefore, the impugned order cannot be sustained on this ground alone. Further, the impugned order has been passed in great haste manner and ex parte status quo order was passed even without calling for objection or record of the case. So far as condition mentioned in the interim order is concerned, the same has no implication as the plaintiff have taken the charge of temple for performing the pooja/archana without there being any legal order in his favour.

In view of the above, the impugned order dated 04.08.2022 passed by the District Judge, Mathura in Misc. Civil Appeal No. 53 of 2022 is set aside.

The petition is allowed.

It is made clear that as on date, there is no interim order operating in favour of either of the parties.

Before parting, it is informed that 23.08.2022 is the date fixed in the appeal. It is expected of the court below to consider and decide the appeal on the said date in accordance with law.

Order Date :- 17.8.2022

Amit Mishra