Karnataka High Court
Shree Mahantha Rajdeshikendra ... vs Sri Y M Shivakumar S/O Sri ... on 2 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:10949
WP No. 105619 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 105619 OF 2023 (GM-CPC)
BETWEEN:
SHREESHREESHREE 1008 JAGADGURU SIDDHALINGA
RAJADESHIKENDRA SHIVACHARYA
BHAGAVATPADAMAHASWAMIGALU
WRONGLY SHOWN AS "MAHANTA RAJADESHIKENDRA
SHIVACHARYA SWAMIGALU"
AGE: ABOUT 48 YEARS, OCC: PONTIFF OF UJJAINI MATH,
R/O. UJJAINI, TQ: KUDLIGI, DIST: BALLARI-583101.
...PETITIONER
(BY SRI. SHREEVATSA HEGDE, ADVOCATE)
AND:
1. SRI. Y.M. SHIVAKUMAR
S/O. SRI. CHANDRASEKHARAIAH,
AGE: 73 YEARS, OCC: NIL,
R/O. HIRALUKKADAM, BALLARI-583101.
2. SRI. S. HANUMANTHAPPA S/O. SIVANNA,
AGE: 45 YEARS, OCC: NIL,
R/O. HIRALUKKADAM, BALLARI-583101.
SAROJA
HANGARAKI 3. SRI. SRI. J. SOMASEKHAR
Location: HIGH S/O. SRI. J. TIPPESWAMY,
COURT OF
KARANTAKA
DHARWAD
AGE: 51 YEARS, OCC: NIL,
BENCH
R/O. ROPPA VILLAGE, POST. SIDDAPURA,
TQ: MOLAKALMURU, DIST: CHITRADURGA-577501.
4. SRI. B. MALLIKARJUNA S/O. BHEEMAYYA,
AGE: 55 YEARS, OCC: NIL,
R/O. ROPPA VILLAGE, POST. SIDDAPURA,
TQ: MOLAKALMURU, DIST: CHITRADURGA-577501.
5. SRI. SREE SREE 1008 JAGADGURU TILOCHANA
RAJADESHKENDRA SIVAACHAARYA SWAMYAGALU
AGE: 47 YEARS, OCC: SPIRITUAL LEADER,
R/O. MUKKAM BALLARI-583101.
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NC: 2024:KHC-D:10949
WP No. 105619 of 2023
6. SREEMADH UJJAINI SADDARMA
SIMHASANA SAMSTHANA MUTT, UJJAINI.
...RESPONDENTS
(BY SRI. SABEEL AHMED, ADV. FOR R1-R4;
SRI. C.R. HIREMATH, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED
21.08.2023 IN IA NO.XXIV ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BALLARI, VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
The matter is listed for vacating stay granted by this
Court and with the consent of both the learned counsels' the
matter is heard.
2. The petitioner in this petition prayed this Court to
quash the impugned order dated 21.08.2023, rejecting the
interim application No.XXIV filed before the Principal District
and Sessions Judge, Ballari, vide Annexure-A. The application is
filed under Order VII Rule 11 R/w Section 151 of Code of Civil
Procedure, 1908 (hereinafter referred to as the ''CPC') to reject
a Counter-Claim of defendant No.3 filed against defendants
No.1 and 2. That the present suit is filed against Srimad Ujjaini
Saddarma Simhasana Samsthana Matt/Peeta, Ujjaini village,
Kudligi Taluk and two others for settling a scheme for the
NC: 2024:KHC-D:10949
management of the defendant No.1 Trust, restraining the
defendant No.2 being appointed as Trustee or Peetadipathi of
defendant No.1 Matt and to appoint defendant No.3 as a new
Trustee with a direction to furnish accounts and enquiries into
the past transactions for a period of 10 years in respect of the
property of Peeta.
3. The defendants No.1 and 2 have filed a written
statement stating about the procedure and selection of
Peetadhipathi after performing rituals as per the parampara of
Peeta due recognition was given to new incumbent by the
Jagadguru's of other pancha peetas. The defendant No.3 in the
written statement sought for a Counter-Claim, under Order VIII
Rule 6(A) of the CPC for declaration and to declare him as
religious Head of Sthira Peetadhyaksha of Ujjaini Saddarma
Peeta at Ujjaini, Kudligi Taluk. He also prayed to declare him as
legally nominated Head of Ujjaini, Saddaramma Peeta, Kudligi
Taluk and hence, their prayer as sought to reject the Counter-
Claim and also contends that the written statement filed by
defendant No.2 are against the appointment of defendant No.3
as a religious Head of Matt.
4. It is also contended that the Hon'ble Apex Court in its
judgment in the case of Damodhar Narayan Sawale (D)
through Lrs Vs Shri Tejrao Bjirao Mhasket and others
reported in 2023 SAR (Civil) 615, 2023 SAR Online (SC) 527,
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held that the Counter-Claim against the interse cannot be made
and based on the said judgment, prayed the Trial Court to
reject the Counter-Claim. The objection filed on behalf of the
plaintiff Nos.1 and 2 are that the application is not maintainable
in law. The case is also posted for cross-examination of DW.1,
the defendant No.3 by the defendants No.1 and 2 in order to
avoid cross-examination the present application is filed making
false allegations in the affidavit. The Citation is not applicable
to the case on hand. The defendant No.3 has also filed the
statement of objections contending that the said application is
not maintainable either in law or facts. In order to avoid the
cross-examination, the present application is filed.
5. The Trial Court having considered the pleadings of the
parties and also considered the grounds urged in the
application as well as the statement of objections and the note
of given judgment, taken note of the principles laid down in
paragraph No.13, however, in paragraph No.14 also made an
observation that Counter-Claim against plaintiff is to be
accepted and it is not maintainable against the co-defendant in
view of the discussions made in the rulings. However, in
paragraph No.15, comes to a conclusion that the evidence of
both the parties has not yet completed and prayer made
rejection of Counter-Claim made by the defendant No.3 cannot
be decided prior to hearing of arguments on merits.
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6. The Trial Court also taken note of Order VIII Rule 6(A)
of the CPC and extracted the same and comes to the conclusion
that, at this stage, it is relevant to point out that the written
statement filed by defendant No.1 is in respect of denial of the
entire case of the plaintiff and contended that he is a spiritual
head, who is suppose to propagate the views of religion or a
particular line of thinking of the institution. The Counter-Claim
made by the defendant No.3 to declare as Religious Head of
Ujjaini Peeta. The reliefs as sought for by the plaintiffs and
defendants No.1, 2 and 3 certainly required evidence of all the
parties on merits. Hence, comes to a conclusion that unless
evidence has been recorded and the principles lay down in the
judgment will not come to the aid of the defendant No.1 to
allow the application and reject the counter-Claim and dismiss
the application. Being aggrieved by the order of the Trial Court,
the present petition is filed.
7. The counsel would vehemently contends that a very
approach of the Trial Court is erroneous and the Trial Court
ought to have been conscious and sensitive to the fact that, in
a petition filed under Section 92 of the CPC, a Counter-Claim
against the co-defendant not only is untenable but, it would
also embarrass the trial. The counsel also vehemently contends
that when the Counter-Claim is based on another claim of
disputing, the registered Will dated 13.4.2011, executed by the
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predecessor of the petitioner, the same would not be within the
scope and ambit of Section 92 of the CPC and hence, spread
this Court to quash the order of the Trial Court.
8. Per contra, the counsel appearing to the respondents
would vehemently contend that when the dispute between the
plaintiff as well as the defendants No.1 and 2 and similar claim
is also made by defendant No.3 as against defendants No.1 and
2, the issues involved between the parties are one and the
same. The Counter-Claim made by defendant No.3 is also
corollary to the prayer made by the plaintiff in the suit and the
same will not come in the way of the case of the defendants
No.1 and 2.
9. The counsel also vehemently contends that though
the principle laid down by the Hon'ble Apex Court in the case of
Damodhar Narayan Sawale referred supra, is applicable to
the facts of the case and taking into note of the claim made by
the plaintiff as against defendants No.1 ad 2 and also the claim
made by defendant No.3 as against the defendants No.1 and 2,
the Trial court has rightly distinguished the judgment of the
Hon'ble Apex Court in the case of Damodhar Narayan
Sawale and passed an order and it doesn't require any
interference.
10. Having heard the learned counsel for the petitioner
and learned counsel appearing for the respondents, taking into
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note of the principles laid down in the judgment of the Hon'ble
Apex Court in the case of Damodhar Narayan Sawale,
referred the judgment and particularly in the head note, it is
very clear that when interse dispute between co-defendants on
the validity of the Sale Deed could not be considered and also
held that the defendants could
not be permitted to raise Counter-Claim against co-defendant,
it can be raised only against the claim of the plaintiff.
11. Having considered the principle laid down in the
judgment of the Hon'ble Apex Court in the case of Damodhar
Narayan Sawale, as well as the claim of the parties, the Court
has to take note of the very claim made by defendant No.3 as
against defendants No.1 and 2. It is also important to note that
the Court has to take note of the relief claimed by the plaintiff
as against defendants No.1 and 2. Admittedly, the suit is filed
under Section 92 of the CPC, against Ujjaini Peeta and two
others for settling a scheme for the management of defendant
No.1 trust, restraining the defendant No.2 being appointed as
Trustee or Peetadhipathi of defendant No.1 Matt and to appoint
defendant No.3 as a new Trustee with a direction to furnish
accounts and enquiries into the past transaction for a period of
ten years in respect of the property of Peeta. Admittedly, the
defendants have also resisted the suit by filing a written
statement. In the written statement took the specific
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contention and the defendant No.3 in the written statement
sought for Counter-Claim under Order VIII Rule 6(A) of the
CPC, for declaration and to declare him as Religious Head of
Sthira Peetadhyaksha of Ujjaini Sddarma Peeta at Ujjain,
Kudligi Taluk. The defendant made the claim of declaring him
as legally nominated Head of Ujjaini Saddarma Peeta of Ujjaini,
Kudligi Taluk and having taken note of the relief sought by the
plaintiff as well as the relief sought by the defendant No.3, both
are corollary each other and no doubt defendants No.1 and 2
who have filed the present application. Resisting the very suit
and when the similar relief is sought by the defendant No.3 also
praying the Court to declare him as the Head of the Sthira
Peetadhyaksha of Ujjaini Sddarma Peeta at Ujjain, Kudligi Taluk
and relief of plaintiff is also same.
12. When such being the case, the parties have already
led their evidence and the same has been observed by the Trial
Court that when the evidence has been commenced instead of
cross-examining the witnesses and having taken note of the
relief sought by the plaintiff as well as the claim made by the
defendant and the claim is also corollary to each other. Hence,
I do not find any error committed by the Trial Court in
dismissing the application and coming to the conclusion that
the claim made by the plaintiff contended that is a spiritual
head who is supposed to propagate the views of religion or
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particular line of thinking of the institution and the said written
statement filed by the defendant No.1 in respect of denial of
entire case of the plaintiff and when such claim is made by the
defendant No.1, defendant No.3 also claims that he has to be
declared as the said Peetadhipathi. The Trial Court also rightly
comes to the conclusion that the evidence of parties i.e.,
plaintiff, defendants No.1 and 2 as well as defendant No.3
certainly require to decide the issues involved between the
themselves and hence, in paragraph No.17, the Trial Court
comes to the conclusion that the defendant No.3 has already
examined in chief and partly cross-examined by defendant
No.1. When he was subjected to cross-examination, at that
juncture, an application is filed and hence comes to the
conclusion that the said application is not maintainable.
13. Hence, taking into note of the issues involved between
the parties and also the question involved between the parties,
I am of the opinion that the Trial Court has not committed any
error in dismissing the application and the matter has to be
considered on merits after leading the evidence with regard to
the very claim made by the defendant No.3 as against the
defendants No.1 and 2. The interse dispute has to be
considered on merits and hence, no grounds are made out to
quash the order as sought for.
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14. In view of the discussion made above, I pass the
following:
ORDER
i. Writ Petition stands dismissed.
ii. In view of dismissal of the petition,
pending interlocutory applications do not
survive for consideration and are
disposed of accordingly.
Sd/-
(H.P.SANDESH)
JUDGE
PMP
CT-MCK
