Karnataka High Court
Sri Vidya Vijaya Thirtharu vs Sri Vidya Shreesha Thirtharu on 19 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 6998 OF 2018 (GM-CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1280 OF 2024 (GM-CPC)
IN MFA NO.6998/2018:
BETWEEN:
SRI VIDYA VIJAYA THIRTHARU
UTHARADHIKARI,
VYASARAJA MUTT (SOSALE),
BENNEGOVINDAPPA ROAD,
GANDHIBAZAR, BANGALORE - 560 004.
...APPELLANT
[BY SRI VIGNESHWAR S. SHASTRI, SR. COUNSEL FOR
SMT.NEERAJA KARANTH, ADVOCATE (PH)]
AND:
1. SRI VIDYA SHREESHA THIRTHARU,
MATADHIPATHI, VYASARAJA MUTT (SOSALE),
BENNEGOVINDAPPA ROAD,
GANDHI BAZAR BANGALORE - 04.
2. SRI ITHAREYA,
S/O BRAHMANYA THIRTHA ACHAR,
AGED ABOUT 20 YEARS,
R/AT KRISHNARPANA BEHIND
VIDYA PEETA, 1ST MAIN ROAD,
NEAR SARDHANA GAS AGENCY,
MANJUNATHANAGAR, BANGALORE - 560 090.
...RESPONDENTS
[BY SRI VENKATESH S. ARABATTI, ADVOCATE, FOR C/R1 (PH);
NOTICE NOT YET ORDERED IN RESPECT OF R2]
2
THIS MISCELLANEOUS FIRST APPEAL NO.6998/2018 IS FILED
UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE
ORDER DATED 23.07.2018 PASSED IN O.S.NO.3130/2018 ON THE FILE
OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-42, REJECTING THE I.A. FILED UNDER ORDER 39 RULE 1 AND 2 R/W
SECTION 151 OF CPC.
IN MFA NO.1280/2024:
BETWEEN:
SRI VIDYA VIJAYA THIRTHARU
UTHARADHIKARI, VYASARAJA MUTT (SOSALE)
BENNEGOVINDAPPA ROAD,
GANDHIBAZAR, BANGALORE - 560 004.
...APPELLANT
[BY SRI M.N.SATHYA RAJ, ADVOCATE (PH)]
AND:
1.
SRI VIDYA SHREESHA THIRTHARU
MATADHIPATHI, VYASARAJA MUTT (SOSALE),
BENNEGOVINDAPPA ROAD,
GANDHI BAZAR BANGALORE - 04.
2.
SRI ITHAREYA,S/O BRAHMANYA THIRTHA ACHAR,
AGED ABOUT 20 YEARS,
R/AT KRISHNARPANA BEHIND
VIDYA PEETA, 1ST MAIN ROAD,
NEAR SARDHANA GAS AGENCY,
MANJUNATHANAGAR, BANGALORE - 560 090.
...RESPONDENTS
[BY SRI VENKATESH S. ARABATTI, ADVOCATE, FOR C/R1 (PH);
NOTICE NOT YET ORDERED IN RESPECT OF R2]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43
RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED
18.01.2024 PASSED ON I.A.NO.1/2023 IN O.S.NO. 3130/2018 ON THE
FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, CCH-42, REJECTING THE I.A. FILED UNDER ORDER 39 RULE
1 AND 2 R/W SECTION 151 OF CPC.
3
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.07.2024, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging common order dated 23.07.2018 passed by
XLI Additional City Civil Judge, Bengaluru (CCH-42) in
O.S.no.3130/2018 on two I.As, one filed by plaintiff under Order
XXXIX Rules 1 and 2 of CPC and another filed by defendant no.1
under Order XXXIX Rules 1 and 2 of CPC, MFA no.6998/2018 is
filed. While challenging order dated 18.01.2024 in same suit on
I.A.no.1/2023 filed by plaintiff under Order XXXIX Rules 1 and 2 of
CPC, MFA no.1280/2024 is filed.
2. Sri Vigneshwar S. Shastri, learned Senior Counsel
appearing for Smt.Neeraja Karanth, learned advocate for appellant-
plaintiff submitted, subject matter of appeals is concerned to Sri
Vyasaraja Mutt (Sosale) [hereinafter referred to as 'Mutt']. It was
submitted, O.S.no.3130/2018 was filed for declaring plaintiff as
Uttaradhikari of Mutt; for mandatory injunction restraining
defendant no.1 or his followers from appointing defendant no.2 or
any persons as Shishya, Sanyasi or Uttaradhikari; for permanent
injunction restraining defendant no.1 from interfering from
performing pooja of idols of Mutt by plaintiff in any branches of
Mutt including head office at Bangalore etc.
3. In said suit, plaintiff filed two applications under Order
XXXIX Rules 1 and 2 of CPC, first one to restrain defendant no.1
from interfering with performance of pooja in any branches of Mutt
and second one for restraining defendant no.1 from ordaining
defendant no.2 or any other person as Shishya, Sanyasi or
Uttaradhikari during pendency of suit.
4. It was submitted, even defendant no.1 filed separate
application under Order XXXIX Rules 1 and 2 of CPC to restrain
plaintiff or his Shishyas/devotees projecting plaintiff as
Uttaradhikari of Mutt and consequently, restrain him/her or any
person claiming on his behalf from collecting any donation or
valuables in any manner from any person by projecting himself as
Uttaradhikari during pendency of counter claim.
5. It was submitted, said three applications were taken up
together and disposed of by order dated 23.07.2018 rejecting all
three applications. It was further submitted, plaintiff had later filed
I.A.no.1/2023 restraining defendant no.1 from ordaining any
person/s as Shishya, Sanyasi or Uttaradhikari during pendency of
suit. It was submitted, trial Court on 18.01.2024 rejected said
application. Assailing order of rejection of applications filed by
plaintiff, above appeals were filed. It was however submitted,
plaintiff was not pressing appeal against rejection of I.A.no.I filed
for restraining defendant no.1 from preventing plaintiff to perform
poojas in any branches of Mutt.
6. It was submitted, in affidavits filed in support of
applications, it was stated, plaintiff was ordained as Sanyasi
Uttaradhikari of Mutt by Sri Vidya Manohara Thirtharu (VMT) on
07.07.2016 at Kurnool, Andhra Pradesh, according to Customs and
Sampradayas of Mutt. On that day, VMT performed Vedanta
Samrajya Pattabhisheka and Darbar in Mutt and thereafter plaintiff
performed Samsthana Pooja along with VMT for few days.
Subsequently, when certain persons claiming to be devotees had
filed suit and obtained order of temporary injunction restraining
plaintiff from performing pooja, he had obeyed said order.
7. It was further stated, there were several allegations
against VMT leading to filing of several civil and criminal cases
against him and forcing him to quit Peeta. It was further stated that
O.S.no.376/2016 was filed for declaration that withdrawal of Nirupa
given to defendant no.2 as null and void and for direction to
defendant no.1 to ordain defendant no.2 as Peetadhipati of Mutt.
Said suit ended in compromise, with VMT agreeing to quit Peeta
on terms contained in Memorandum of Understanding ('MoU'
for short) dated 30.06.2017, whereunder Sri Prahalladachar
through his followers would pay Rs.95 lakhs to VMT and in turn,
VMT would ordain Sri Prahalladachar as Peetadhipati, who would
thereafter announce plaintiff as Uttaradhikari of Mutt.
8. It was stated that on 02.07.2017, Sri Prahalladachar
became Peetadhipati of Mutt and in function arranged on that day
in front of Mutt in Thirumakudalu, defendant no.1 declared plaintiff
as Uttaradhikari of Mutt, in presence of dignitaries. Thereafter,
plaintiff and defendant no.1 returned to Bengaluru and performed
Samsthana Pooja on 4th and 5th of July, 2017, at Head Office of
Mutt at Gandhibazar, with defendant no.1 sitting behind plaintiff.
Subsequently, defendant no.1 began avoiding involving plaintiff in
activities of Mutt. And on Chaturmasya, when idols of deity were
not given to plaintiff, he went to Coimbatore to observe
Chaturmasya as Uttaradhikari of Mutt. Subsequently, defendant
no.1 began disowning declaration of plaintiff as Uttaradhikari of
Mutt and tried to prevent plaintiff from entering any branches of
Mutt. Since same was contrary to announcement of plaintiff as
Uttaradhikari on 02.07.2017, he apprehended that defendant no.1
intended to appoint some other person as Uttaradhikari, therefore,
application for temporary injunction was filed.
9. It was submitted, applications were opposed. Trial
Court framed following points for consideration:
1. Whether the plaintiff made out prima-facie case in
his favour with regard to both the applications?
2. Whether the balance of convenience lies in favour
of the plaintiff with regard to both the applications?
3. Whether the plaintiff will be put to irreparable loss
and injury if the temporary injunction is not
granted with regard to both the applications?
4. Whether the defendant no.1 made out prima-facie
case in his favour?
5. Whether the balance of convenience lies in favour
of the defendant no.1?
6. Whether the defendant no.1 will be put to
irreparable loss and injury if the temporary
injunction is not granted?
7. What order?
10. On consideration, trial Court answered point no.1 in
negative, points no.2 to 6 as not arising for consideration and point
no.7 by rejecting both applications filed by plaintiff as well as
application filed by defendant no.1. It was submitted, trial Court
rejected applications on ground that as per MoU dated 30.06.2017,
made part of compromise decree in O.S.no.376/2016, defendant
no.1 become Peetadhipati of Mutt and he had to induct plaintiff as
Uttaradhikari after completion of formalities. It observed, while
plaintiff claimed he was declared as Uttaradhikari by administering
certain rituals, defendant disputed such declaration and stated that
to become Uttaradhikari, plaintiff has to complete formalities, but
question whether plaintiff completed religious formalities would be
barred under Section 9 of CPC. On said conclusion, it held there was
no prima facie case and therefore, examination of other points did
not arise for consideration.
11. It was submitted, conclusion by trial Court was contrary
to specific clauses of compromise decree and MoU. It was
submitted, in Clause (5) of MoU, fact that plaintiff was ordained as
Sanyasi by outgoing Peetadhipati was noted. It was agreed that
Sri D. Prahalladachar was to be made Peetadhipati of Mutt, who
would thereafter, declare plaintiff to be Uttaradhikari of Mutt. It was
submitted, sub-clause (c) of Clause (5) of MoU, provided that on
completion of formalities for induction of Sri D. Prahalladachar as
Peetadhipati, announcement was to be made in same ceremony
that plaintiff would be inducted as Uttaradhikari, who would have
rights according to customs and usages of Mutt.
12. It was submitted, on 02.07.2017, Sri D. Prahalladachar
was inducted as Peetadhipati of Mutt and in function arranged at
Thirumakudalu, Sri D. Prahalladachar, who is defendant no.1
herein, declared plaintiff as Uttaradhikari of Mutt, that too in
presence of dignitaries and event being videographed. Thereafter,
plaintiff was performing pooja in Mutt. Apart from above, in plaint
as well as affidavit filed in support of applications, plaintiff had
specifically stated that after such declaration, plaintiff accompanied
defendant no.1 to Bengaluru, where he performed 'Samsthana
Pooja' at head office of Mutt, on 4th and 5th of July, 2017 with
defendant no.1 sitting behind plaintiff. It was submitted along with
plaint and list of documents, copies of two CDs containing video
recording were filed. It was submitted, at stage of consideration of
application for temporary injunctions, trial Court was required to go
by assertions and not expect every assertion to be established while
considering prima-facie case. Therefore, dispute about completion
of formalities was contrary to material on record.
13. It was further submitted, MoU and compromise decree
was binding on all parties to suit. And as defendant no.1 had been
inducted as Peetadhipati in terms of same, he was required to act
according to MoU, but plaintiff was not permitted to stay in Mutt
and perform pooja. It was submitted, plaintiff being ordained as
Sanyasi on 07.07.2016 was in fact senior Sanyasi than defendant
no.1, but agreed to abide by wishes of VMT and terms of
compromise decree. On other hand, defendant no.1 had failed to
adhere to said conditions by preventing plaintiff from exercising
rights of Uttaradhikari, therefore plaintiff was suffering irreparable
loss and hardship and balance of convenience lie in his favour.
14. It was submitted, even presumption that question about
completion of formalities for ordaining Uttaradhikari was barred by
Section 9 of CPC, was grossly contrary to law. It was submitted,
Hon'ble Supreme Court in case of Sri Sinna Ramanuja Jeer and
Ors. v. Sri Ranga Ramanuja Jeer and Another, reported in
1961 SCC OnLine SC 358, had clarified, though suit for
declaration of religious honors and privileges simplicities will not lie
before Civil Court, but suit to establish one's right to an office in a
temple and to honors and privileges attached to said office, its
remuneration or perquisites was maintainable.
15. Reliance was also placed on decision in case of
Gurupadayya Charantayya Advimath v. Chikkayya, reported in
AIR 1979 KANT 202, wherein, it was held suit for religious office
is of civil nature and general rule of law under Section 9 of CPC that
unless there is express or implied bar, Civil Courts are bound to
entertain claim. On above grounds, sought for setting aside
impugned order, allow application and grant order of temporary
injunction restraining defendant no.1 from appointing defendant
no.2 or any other person as Uttaradhikari of Mutt during pendency
of suit.
16. Sri MN Satya Raj, learned counsel appearing for plaintiff
in MFA.no.1280/2024 submitted, after entering into MoU, plaintiff
was announced as Uttaradhikari. He was performing poojas, which
was later prevented. It was submitted though defendant no.1 was
bound by MoU and Compromise decree, which had attained finality,
but, defendant no.1 had not acted as per terms. It was submitted
plaintiff had performed pooja as Uttaradhikari. Though, defendants
urged that plaintiff had not respected defendant no.1, said question
was not part of compromise decree. It was submitted since
defendant no.1 were not permitting plaintiff to perform rituals of
Mutt, suit and I.A.no.1/2023 was filed. Even said application was
opposed.
17. Trial Court framed following points for its consideration:
1. Whether the plaintiff made out prima-facie case in
his favour?
2. Whether the balance of convenience lies in favour
of the plaintiff?
3. Whether the plaintiff will be put to irreparable loss
and injury if the temporary injunction is not
granted?
4. What order?
18. On consideration, trial Court answered points no.1 to 3
in negative and point no.4 by dismissing application. It was
submitted, same was merely taking note of earlier order dated
23.07.2018 passed on I.A.no.I by stating, prayer sought in I.A.no.I
and I.A.no.1/2023 were same attracting principles of res judicata.
19. It was submitted, earlier applications were filed on
apprehension that defendant no.1 was likely to ordain defendant
no.2 as Uttaradhikari and to restrain defendant no.1 from
preventing plaintiff performing pooja as Uttaradhikari of Mutt.
However, as no further steps for ordainment were taken, only
application regarding performing of pooja in any branches of Mutt
was urged. But, under impugned order dated 23.07.2018, both
applications were considered and rejected. It was submitted, earlier
applications were rejected not on merits, but, on ground of bar
under Section 9 of CPC, which was wholly unsustainable and
pending consideration in appeal filed there against.
20. It was submitted, present application was filed in light
of developments that had taken place subsequent to order dated
23.07.2018. It was submitted, in affidavit filed in support of
application, it was stated, Vyasaraja Seva Samiti started circulating
WhatsApp messages about need for appointing new Uttaradhikari of
Mutt. Even Mutt circulated its letter dated 15.04.2023 by WhatsApp
for anointment of successor to Mutt and about constitution of
Advisory Committee. When plaintiff was already declared as
Uttaradhikari of Mutt by defendant no.1, above action of defendant
no.1 trying to install some third person as Uttaradhikari and
thereby defeat right of plaintiff was cause of action for filing
I.A.no.1/2023. Therefore, despite prayer to be similar, application
was on new cause of action, which would not attract principles of
res judicata.
21. It was submitted, though defendants urged contention
about suppression of fact by plaintiff, same would not hold much
water. It was submitted, High Court of Bombay in Indian Oil
Corporation v. Dattatray Eknath More and Others in RP (ST)
no.3185/2020 in WP no.802/2015 disposed of on 04.08.2023, had
held in order to invoke doctrine of fraud, there must be suppression
of facts or documents so important and so material that in absence
of same, no effective decision could be made and if made, would be
patently unjust. It was further observed, suppression of material
facts or documents which have potential to alter decision or change
perspective of decision if brought on record by disclosure could be
considered. It was submitted, such a case was neither pleaded nor
established.
22. It was submitted, Hon'ble Supreme Court in Pushpa
Devi Bhagat v. Rajinder Singh and Others, reported in 2006
(5) SCC 566, had held terms of compromise would be binding on
all parties to it and in case, any of parties seek to avoid obeying its
terms would be to approach Court that had recorded compromise.
Even decision in Ashish Seth v. Sumit Mittal & Others, reported
in 2022 (8) SCC 724, was relied for proposition that, a party to
compromise cannot accept only favorable part and eschew
remaining.
23. On other hand, Sri Venkatesh S. Arbatti, learned
counsel for defendant no.1 sought to oppose both appeals.
It was submitted, applications filed by plaintiff under Order XXXIX
Rules 1 and 2 of CPC, for relief which was discretionary in nature. It
was submitted, there were various proceedings initiated by or
against plaintiff, which suppressed. It was submitted, there were
three other suits concerning very same right agitated in present suit
namely O.S.no.6654/2017 pending before CCH-32, O.S.no.16/2018
pending before CCH-14 and O.S.no.231/2018 pending before Civil
Court at Mysore. It was further submitted, ex-parte order of
injunction obtained by plaintiff in above suits were later vacated
after detailed hearing. It was submitted, prayer in
O.S.no.5798/2017 filed by devotees of Mutt before City Civil Court,
Bengaluru, on 23.08.2017 for restraining defendant no.1 from
ordaining or appointing any person as Shishya, Sanyasi,
Uttaradhikari or Peetadhipati and to restrain defendant no.1 from
interfering with present plaintiff (arrayed as defendant no.2) from
performing pooja in any branches of Mutt. Likewise, prayer in
O.S.no.6654/2017 filed by devotees of Mutt with Mutt as defendant
no.1, present defendant no.1 as defendant no.2 and present
plaintiff as defendant no.3 seeking for declaration that defendant
no.3 was not Uttaradhikari and does not possess requisite
character, competence, qualities, virtues, knowledge befitting Mutt
to be appointed as Uttaradhikari; to restrain defendants no.1 and 2
from appointing defendant no.3 as Uttaradhikari and to restrain
defendant no.3 from holding himself as Uttaradhikari of Mutt etc.
24. Relief sought in O.S.no.16/2018 by religious
beneficiaries of Mutt with Mutt as defendant no.1, present
defendant no.1 as defendant no.2 and present plaintiff as defendant
no.3 seeking for declaration that confirmation of Matadhipati on
defendant no.2 as illegal and contrary to religious traditions of
Mutt; to direct defendant no.2 to demit position as Peetadhipati and
to handover same to defendant no.3 already coronated as
Peetadhipati; for declaration of defendant no.3 as Matadhipati; for
permanent injunction restraining defendant no.2 from interfering
with religious activities of defendant no.3 as Matadhipati, etc.
25. It was submitted, prayer sought in O.S.no.231/2018
filed by devotees before City Civil Judge (Jr.Dn.) Mysore, with Mutt
as defendant no.1, VMT as defendant no.2, present defendant no.1
as defendant no.3 and present plaintiff as defendant no.4 seeking
for declaration that judgment and decree dated 01.07.2017 passed
in O.S.no.376/2016 as null and void and to declare ordainment of
defendant no.3 as Peetadhipati, as illegal and unlawful etc. It was
submitted, Civil Court in O.S.no.16/2018 by order dated
05.02.2018 passed on I.As.no.1 and 3 filed under Order XXXIX
Rules 1 and 2 of CPC, had vacated ex-parte order of temporary
injunction granted earlier on ground of suppression. It was
submitted, present suit was filed on 24.04.2018, after vacation of
temporary injunction was not bonafide. It was submitted, as
plaintiff had totally suppressed above litigation, he would be
disentitled from any relief, as held by Hon'ble Supreme Court in KD
Sharma v. Steel Authority of India & others, reported in 2008
(12) SCC 481; G. Jayshree & Others v. Bhagwandas S. Patel
& Others, reported in 2009 (3) SCC 141 and Manohar Lal
(Dead) by LRs v. Ugrasen (D) by LRs., reported in 2010 (11)
SCC 557.
26. It was nextly contended, since relief sought by plaintiff
was based on terms of MoU and Compromise decree, present suit
suffered from non-joinder of parties namely,VMT and all plaintiffs in
O.S.no.376/2016. It was alternatively submitted, present plaintiff
was only a consenting signatory to MoU in O.S.no.376/2016. Since
he was not a party to suit, relief sought in present suit would be
barred by Section 15 (a), 19 (a) and Section 38 (2) of Specific
Relief Act, 1963 ('SR Act' for short), by relying upon ratio in
decision of this Court in T.M. Ratnadass v. Pastor Daniel
Christian, reported in 2013 SCC OnLine Kar 8535.
27. It was further contended, plaintiff was Shishya of VMT,
but, failed to show due deference to defendant no.1, who was
Peetadhipati, thereby rendering himself ineligible for appointment
as Uttaradhikari.
28. It was submitted, due to serious allegations of misuse
and mismanagement of funds and properties of Mutt, Government
of Karnataka by order dated 26.05.2012 appointed Sri K. Jairaj,
IAS, Officer as Administrator of Mutt for a period of two years and
constituting a Committee to guide Administrator in Management of
Affairs of Mutt. It was submitted, this Court dismissed
W.P.no.6137/2017 filed questioning said G.O. dated 26.05.2012.
Thus, properties and secular affairs of Mutt were with
Administrator, who was not made party to suit. In view of above,
defendant no.1 has no say insofar as permitting or not-permitting
plaintiff to enter Mutt. It was further submitted, VMT had invited
defendant no.1 through Nirupa on 24.12.2015 to become 41st
Peetadhipati of Mutt. On 28.12.2015, defendant no.1 accepted
Nirupa. However, VMT later tried to revoke Nirupa leading to filing
of O.S.no.376/2016 as a representative suit. In said suit, an interim
injunction was granted against VMT from handing over Peeta to any
person other than defendant no.1. On 27.04.2016, VMT gave
undertaking to Court that Peeta will not be handed over to any
person including defendant no.1. However, during operation of
undertaking VMT initiated plaintiff into Sanyasa and took him as his
Shishya. It was submitted, VMT never gave Nirupa to plaintiff to
make him Uttaradhikari at any point of time. It was submitted,
affidavit filed by present plaintiff for impleading him in
O.S.no.376/2016 to corroborate said development describing
himself as Shishya only. Even VMT had filed affidavit describing
plaintiff as his Shishya. Thus, claim of plaintiff as Uttaradhikari were
without any basis. Subsequently, on 01.07.2017, said suit ended in
compromise decree and defendant no.1 becoming 41st Peetadhipati
on 02.07.2017.
29. It was submitted, though status of plaintiff was no more
than as Sanyasi Shishya, MoU provided plaintiff to be declared as
Uttaradhikari by administering certain rituals. But, after defendant
no.1 became Peetadhipati, plaintiff indulged in Guru Ninda and does
not accept defendant no.1 as his Guru, which was first of many
conditions to consider his name. It was submitted, there were other
instances of plaintiff going against traditions of Mutt.
30. Referring to opinion of Director of Poornaprajna
Samshodhana Mandiram, it was submitted, as per customs
Peetadhipati could grant Sanyasadeekshe to several persons and
have multiple Shishyas. But, for appointing Uttaradhikari,
performance of "Vedanthasamrajya Pattabhisheka" and
"Uttaradhikara Sweekara" were necessary, same was not
established by plaintiff. It was also submitted, defendant no.1 had
stated, as and when need to appoint any person as Uttaradhikari of
Mutt would arise, suitability of plaintiff would be examined in best
interest of Mutt.
31. It was submitted, apprehensions of plaintiff about
impending action by defendant no.1 to appoint Uttaradhikari were
ill founded, as Civil Court in O.S.no.6654/2017 had granted interim
order on 27.01.2020 directing parties to maintain status-quo till
disposal of suit. While passing said order, trial Court had opined,
whether plaintiff herein establishes that he was suitable for
appointment as Uttaradhikari, was a matter for trial.
32. Reliance was placed on order dated 08.08.2019 passed
by this Court in W.P.no.39961/2018 connected with
W.P.no.36879/2018 filed challenging order dated 18.08.2018
passed in O.S.no.231/2018 on I.A.no.II. It was submitted this
Court had made several observations against maintainability of suit
taking note of various representative suits filed against Mutt,
including present suit. It was held, trial Court was required to
examine maintainability of suit while considering application for
temporary injunction, especially, where relief sought at interim
stage amounts to grant in final relief at pretrial stage. It was
submitted, said order was confirmed by Hon'ble Supreme Court
while dismissing SLP (C) no.27494-27950/2019 on 20.10.2020. In
view of above, order of trial Court rejecting application on
observations that suit filed was not maintainable would be justified
and sought for dismissal of appeals.
33. In reply, learned Senior Counsel for plaintiff submitted,
conclusion arrived by trial Court while dismissing suit on ground of
maintainability of suit was without assigning proper reasons. It was
submitted that State Government took management of Mutt on
26.05.2012 by appointing Sri K. Jairaj, IAS Officer, as
Administrator, who resigned after some time. Thereafter, no officer
was appointed. Further, Peetadhipati of Mutt is party. Therefore, as
contention about non-joinder of necessary parties, lacked merit.
34. It was submitted, rejection on applications by trial Court
was on erroneous ground that suit was not maintainable as per
Explanation-I to Section 9 of CPC, as it was filed before induction of
plaintiff as Uttaradhikari, which was contrary to pleading and
material produced, which indicate plaintiff was declared as
Uttaradhikari in presence of dignitaries and performance of customs
for same and plaintiff performing poojas at Mutt thereafter as
Uttaradhikari. On said ground sought for allowing Appeal.
35. Heard learned counsel, perused impugned orders and
material on record.
36. From above, common point that arises for consideration
in both appeals would be:
"Whether impugned orders passed by trial Court on
I.A.no.II and I.A.no.1/2023 are perverse or
untenable, calling for interference?"
37. It is seen that prayer sought in I.A.no.II and
I.A.no.1/2023 filed by plaintiff are similar in nature. While, I.A.no.II
was dismissed by order dated 23.07.2018 on ground that prayer
sought in suit was barred under Section 9 of CP; whereas,
I.A.no.1/2023 is dismissed as barred by principles of res judicata.
Thus, applications are not considered on merits.
38. Further, in case, plaintiff succeeds on I.A.no.II,
I.A.no.1/2023 would be rendered infructuous. But, as held by
Hon'ble Supreme Court in Erach Boman Khavar v. Tukaram
Sridhar Bhat and Ors., reported in 2013 (15) SCC 655, that
principles of res judicata would not apply internally, where
subsequent application is on different/fresh cause of action. Thus,
even if I.A.no.II is rejected, I.A.no.1/2023 would require separate
consideration, though in limited scope. It is further seen, defendant
no.1 has not challenged rejection of his application. Therefore, MFA
no.6998/2018 is confined to order on I.A.no.II and MFA
no.1280/2024 confined to order on I.A.no.1/2023.
39. Insofar as grant of order of temporary injunction when
there are serious questions about maintainability of suit, Hon'ble
Supreme Court in it' recent decision in Asma Lateef v. Shabbir
Ahmad, reported in (2024) 4 SCC 696, held when maintainability
of suit is urged, there should be prima facie consideration of said
issue, before granting interim relief.
40. Insofar as maintainability of suit, plaintiff relied on Sri
Sinna Ramanuja Jeer and Gurupadayya's cases (supra) to
contend as suit was for declaration of right to an office, it would be
maintainable. In Sri Sinna Ramanuja Jeer's case (supra), dealing
with suit for declaration of entitlement to certain honors in a
temple, Hon'ble Supreme Court held suit for declaration of right to
religious honours and privileges simpliciter would not be
maintainable, but, suit to establish right to an office in a temple
would be maintainable. In Gurupadayya's case (supra), though
this Court was dealing with issue about amenability of dispute
regarding succession as Matadhipati to provisions of Bombay Public
Trust Act, 1950, its finding about maintainability was with reference
to provisions of Section 9 of CPC.
41. Further, after four Judges Bench decision in Sri Sinna
Ramanuja Jeer's case (supra), Constitution Bench of Hon'ble
Supreme Court laid down following principles for scope of Section 9
of CPC in Dhulabai v. State of MP reported in AIR 1969 SC 78:
".... The result of this inquiry into the diverse views expressed in
this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special
tribunals the civil courts' jurisdiction must be held to be excluded
if there is adequate remedy to do what the civil courts would
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not
been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court,
an examination of the scheme of the particular Act to find the
adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil
court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all questions about the said right and liability shall be determined
by the tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said
statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before tribunals constituted under that Act.
Even the High Court cannot go into that question on a revision or
reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is
open. A writ of certiorari may include a direction for refund if the
claim is clearly within the time prescribed by the Limitation Act
but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of
tax collected in excess of constitutional limits or illegally collected
a suit lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil
suit does not lie if the orders of the authorities are declared to be
final or there is an express prohibition in the particular Act. In
either case the scheme of the particular Act must be examined
because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not
readily to be inferred unless the conditions above set
down apply."
42. Thereafter, Hon'ble Supreme Court in Ugamsingh and
Mishrimal v. Kesrimal, reported in (1970) 3 SCC 831, held,
plaintiff's claim that they were entitled to worship without
interference, idol of Adeshwarji in temple named after him at Paroli
according to tenets observed by Digambari sect of Jain religion,
would mean that controversy between parties was not one which
was confined merely to rites and rituals, but one which affected
right of worship and therefore, suit was maintainable.
43. Issue was perhaps most comprehensively dealt with in
Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma,
reported in 1995 Supp (4) SCC 286 to hold:
"27. To begin with the objection to the maintainability of the suit
under Section 9 of the Civil Procedure Code was probably not
raised in 1954 and 1959 and if raised was not pressed. But that
by itself may not preclude defendant-appellant from raising it,
even in this Court as the bar or lack of jurisdiction can be
entertained, at any stage, since an order or decree passed
without jurisdiction is non est in law. What then is the scope of
the section? Does it comprehend suits for declaration that the
Syrian Churches are episcopal? Could the respondent-plaintiff
claim declaration that Malankara Association had become
autocephalous and no priest could refuse to recognise the
authority of the Catholico? Could the plaintiff seek injunction,
restraining the priests or deacon from performing any other
sacramental services and prohibit the defendants from interfering
with the administration of the Malankara Church? How would the
bar of jurisdiction operate if only part of relief is cognizable? To
appreciate these aspects it is necessary to set out the section
itself and examine its scope and then advert to facts:
"9. Courts to try all civil suits unless barred.-- The Courts shall
(subject to the provisions herein contained) have jurisdiction to
try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Explanation I.-- A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding that
such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II.-- For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a
particular place."
28. One of the basic principles of law is that every right has a
remedy. Ubi jus ibi remediem is the well-know maxim. Every civil
suit is cognizable unless it is barred, "there is an inherent right in
every person to bring a suit of a civil nature and unless the suit is
barred by statute one may, at one's peril, bring a suit of one's
choice. It is no answer to a suit, howsoever frivolous the claim,
that the law confers no such right to sue" Ganga Bai v. Vijay
Kumar [(1974) 2 SCC 393: AIR 1974 SC 1126]. The expansive
nature of the section is demonstrated by use of phraseology both
positive and negative. The earlier part opens the door widely and
latter debars entry to only those which are expressly or impliedly
barred. The two explanations, one existing from inception and
latter added in 1976 bring out clearly the legislative intention of
extending operation of the section to such religious matters
where right to property or office is involved irrespective of
whether any fee is attached to the office or not. The language
used is simple but explicit and clear. It is structured on the basic
principle of a civilised jurisprudence that absence of machinery
for enforcement of right renders it nugatory. The heading which
is normally key to the section brings out unequivocally that all
civil suits are cognizable unless barred. What is meant by it is
explained further by widening the ambit of the section by use of
the word 'shall' and the expression "all suits of a civil nature"
unless "expressly or impliedly barred".
29. Each word and expression casts an obligation on the
court to exercise jurisdiction for enforcement of right. The word
'shall' makes it mandatory. No court can refuse to entertain a suit
if it is of description mentioned in the section. That is amplified
by use of expression "all suits of civil nature". The word 'civil'
according to dictionary means "relating to the citizen as an
individual; civil rights". In Black's Law Dictionary it is defined as
"relating to private rights and remedies sought by civil actions as
contrasted with criminal proceedings". In law it is understood as
an antonym of criminal. Historically the two broad classifications
were civil and criminal. Revenue, tax and company etc. were
added to it later. But they too pertain to the larger family of
'civil'. There is thus no doubt about the width of the word 'civil'.
Its width has been stretched further by using the word 'nature'
along with it. That is even those suits are cognizable which are
not only civil but are even of civil nature. In Article 133 of the
Constitution an appeal lies to this Court against any judgment,
decree or order in a "civil proceeding". This expression came up
for construction in S.A.L. Narayan Row v. Ishwarlal
Bhagwandas [AIR 1965 SC 1818 : (1966) 1 SCR 190] . The
Constitution Bench held "a proceedings for relief against
infringement of civil right of a person is a civil proceedings".
In Arbind Kumar Singh v. Nand Kishore Prasad [AIR 1968 SC
1227 : (1968) 3 SCR 322] it was held "to extend to all
proceedings which directly affect civil rights". The dictionary
meaning of the word 'proceedings' is "the institution of a legal
action, any step taken in a legal action". In Black's Law
Dictionary it is explained as:
"In a general sense, the form and manner of conducting
juridical business before a court or judicial officer. Regular
and orderly progress in form of law, including all possible
steps in an action from its commencement to the execution of
judgment. Term also refers to administrative proceedings
before agencies, tribunals, bureaus or the like."
The word 'nature' has been defined as "the fundamental qualities
of a person or thing; identity or essential character; sort; kind;
character". It is thus wider in content. The word 'civil nature' is
wider than the word "civil proceeding". The section would,
therefore, be available in every case where the dispute has the
characteristic of affecting one's rights which are not only civil but
of civil nature.
30. Are religious rights, for instance right to worship in a
religious place, entry in a temple, administration of religious
shrines for instance a temple, mosque or a church are rights of
civil nature? Is the suit filed by the respondent bad as the
declaration, injunction and prohibition sought are in respect of
matters which are not civil in nature? The answer is given by
Explanation I. The Civil Procedure Code was enacted during
British period. The legislature enacting the law was aware that
there were no ecclesiastical courts either in ancient or medieval
India as in England.
"The term 'ecclesiastical law' may be used both in a general
and in a technical sense. In its general sense it means the law
relating to any matter concerning the Church of England
administered and enforced in any court; in its technical sense
it means the law administered by ecclesiastical courts and
persons". [Halsbury's Laws of England, Vol. 14, para 301]
"The ecclesiastical law of England is as much the law of the
land as any other part of the law". [Halsbury's Laws of
England, Vol. 14, para 304]
There was no such law in our country. The ecclesiastical courts
are peculiar to England. Parliament was aware of it. That is why it
added Explanation I to Section 9 of the Civil Procedure Code. It
obviates any ambiguity by making it clear that where even right
to an office is contested then it would be a suit of a civil nature
even though that right may entirely depend on the decision of a
question as to religious rites or ceremonies. Explanation II
widens it further to even those offices to which no fees are
attached. Therefore, it was visualised from the inception that a
suit in which the right to property or religious office was involved
it would be a suit of civil nature. Reason for this is both historical
and legal. In England ecclesiastical law was accepted as a part of
the common law binding on all. But, "the introduction of English
law into a colony does not carry with it English ecclesiastical law".
(Halsbury's Laws of England, Vol. 14, para 315). In ancient or
medieval India the courts were established by kings which heard
all disputes. No religious institution was so strong and powerful
as church in England. The Indian outlook was always secular.
Therefore, no parallel can be drawn between the administration
of the churches by ecclesiastical courts in England. Religion in
India has always been ritualistic. The Muslim rulers were by and
large tolerant and understanding. They made India their home.
They invaded, ruled and became Indian. But Britishers made it a
colony. However they did not interfere with religion. Disputes
pertaining to religious office including performance of rituals were
always decided by the courts established by law. As far back as
1885 Justice Mehmood in Queen Empress v. Ramzan [ILR (1885)
7 All 461 : 5 AWN 117] repelled the argument that the courts
were precluded from considering Muslim ecclesiastical law and
observed at p. 468 as under:
"I am unable to accept this view, because, if it is conceded
that the decision of this case depends (as I shall presently
endeavour to show it does depend) upon the interpretation of
the Muhammadan Ecclesiastical Law, it is to my mind the
duty of this Court, and of all courts subordinate to it, to take
judicial notice of such law."
There are numerous authorities where dispute about entry in the
temple, right to worship, performing certain rituals have been
taken cognizance of and decided by civil courts. In Narasimma
Chariar v. Kristna Tata Chariar [(1870-71) 6 Mad HCR 449] it
was claimed by the plaintiff that they had the exclusive rights to
Adhyapaka Mirass of reciting certain texts or chants in a temple.
In that suit it was held:
"The claim is for a specific pecuniary benefit to which plaintiffs
declare themselves entitled on condition of reciting certain
hymns.
There can exist no doubt that the right to such benefits is a
question which the courts are bound to entertain, and cannot
cease to be such a question, because claimed on account of
some service connected with religion.
If, to determine the right to such pecuniary benefit, it
becomes necessary to determine incidentally the right to
perform certain religious services, we know of no principle
which would exonerate the court from considering and
deciding the point."
It was approved by the Privy Council in Krishnama v.
Krishnasami [ILR (1879) 2 Mad 62 : 6 IA 120] and the passage
extracted above was approved by observing that it was "perfectly
correct". This was a decision when Explanation II was not there.
The dispute had two rounds of litigation. In the second round
after remand the High Court observed:
"It is certainly not the duty of the civil court to pronounce on
the truth of religious tenets nor to regulate religious
ceremony; but, in protecting persons in the enjoyment of a
certain status or property, it may incidentally become the
duty of the civil court to determine what are the accepted
tenets of the followers of a creed and what is the usage they
have accepted as established for the regulation of their rights
inter se."
31. The Law Commission in its 27th Report in Civil Procedure
Code, December 1964 at p. 91 while considering the addition of
Explanation II to Section 9 observed as under:
"It may be added, that the decision of the Privy Council to the
effect that suit for pecuniary benefits is a civil suit, even if it
becomes necessary to determine a right to perform religious
services, does not imply that other suits relating to religious
offices cannot be entertained."
32. In Srinivasalu Naidu v. Kavalmari Munnuswami
Naidu [AIR 1967 Mad 451 : (1967) 1 MLJ 371] it was observed:
"The explanation certainly does not confine the limits of the
nature of suits contemplated by the main section. What the
Explanation states is only that though religious rites and
ceremonies may form the basis of a right that is claimed,
such right being a right to property or to office, a suit to
establish such right would be a suit of a civil nature. The
section takes within its broad sweep all questions where one
person claims any privilege in himself as against others.
There is no doubt that such a question would be one of a civil
nature."
33. On the plain phraseology of the section, therefore, it is
clear that a suit filed after coming into force of the Constitution
for vindication of rights related to worship, status, office or
property is maintainable in civil court and it would be duty of the
court to decide even purely religious questions if they have a
material bearing on the right alleged in the plaint regarding
worship, status or office or property. In Nafar Chandra
Chatterjee v. Kailash Chandra Mondal [AIR 1921 Cal 328 : 25
CWN 201] it was held:
"Where there were no Ecclesiastical Courts, there was nothing
to prevent civil courts from holding that Pujari has been
removed from his office on valid grounds."
Sir Ashutosh Mookerjee quoted thus:
"There is manifestly nothing wrong in principle that the holder
of a spiritual office should be subject to discipline and should
be liable to deprivation for what may be called misconduct
from an ecclesiastical point of view or for flagrant and
continued neglect of duty.... It is plain that although, so far as
Hindus are concerned, there is now no State Church and no
Ecclesiastical Court, there is nothing to prevent civil courts
from determining questions such as those raised in the
present litigation and from holding that the Pujari has been
removed from his office on valid grounds."
34. In U. Wisaya v. U. Zaw Ta [AIR 1914 LB 178 (1) : 27 IC
112] where a question arose as to which was the forum where an
action for violation of religious rights could be brought, it was
held:
"There are, therefore no ecclesiastical authorities in Lower
Burma. Section 9, Civil Procedure Code enacts that the courts
shall, subject to the provisions herein contained, have
jurisdiction to try all suits of a civil nature excepting suits of
which the cognizance is either expressly or impliedly barred.
This is a suit of a civil nature. It is a claim of certain lands and
manuscripts.
The civil courts, in our opinion, clearly have jurisdiction to
decide the suit and should do so."
35. In Sinna Ramanuja Jeer v. Ranga Ramanuja Jeer [(1962)
2 SCR 509 : AIR 1961 SC 1720] this Court observed:
"Prima facie suits raising questions of religious rites and
ceremonies only are not maintainable in a civil court, for they
do not deal with legal rights of parties. But the explanation to
the section accepting the said undoubted position says that a
suit in which the right to property or to an office is contested
is a suit of civil nature notwithstanding that such right may
depend entirely on the decision of a question as to religious
rites or ceremonies. It implies two things namely, (i) a suit for
an office is a suit of a civil nature; and (ii) it does not cease to
be one even if the said right depends entirely upon a decision
of a question as to the religious rites or ceremonies."
36. In Ugamsingh v. Kesrimal [(1970) 3 SCC 831 : (1971) 2
SCR 836] it was held that right to worship is a civil right which
can be subject-matter of a civil suit. The Court observed:
"It is clear therefore that a right to worship is a civil right,
interference with which raises a dispute of a civil nature...."
That the right to conduct worship is also a civil right has been
recognised by the courts in T.A. Aiyangar Swamigal v. L.S.
Aiyangar [31 MLJ 758 : AIR 1917 Mad 903]. In Debendra Narain
Sarkar v. Satya Charan Mukerji [AIR 1927 Cal 783 : 54 Cal 614]
it was held that a suit by a person claiming to be entitled to a
religious office against an usurper, for a declaration of his right to
the office is a suit of a civil nature. Similarly in S. Ramanuja
Jeer [(1962) 2 SCR 509 : AIR 1961 SC 1720] this Court observed
as under:
"From the aforesaid passage it is clear that so long as the
holder of a purely religious office is under a legal obligation to
discharge duties attached to the said office for the non-
observance of which he may be visited with penalties, a civil
court could grant a declaration as to who would be or could
be the holder of such office."
37. It was vehemently urged that declaration of the character
of a church, viz., whether it was autocephalous was solely
dependent upon the canonical laws and it necessarily involved an
adjudication of what was the applicable canon, what was its
interpretation and what are the religious beliefs, practices,
customs and usage in the church which pertained to the
ecclesiastical jurisdiction and the civil courts could not embark on
such an enquiry. This is the farthest or the highest stand that
could be taken by the appellant. The answer is twofold, one
Section 9 of the Civil Procedure Code and other Article 25 of the
Constitution. The latter guarantees constitutionally freedom of
conscience and the right freely to profess, practise and propagate
religion to every person. Its reach has been explained in various
decisions. In His Holiness Srimad Perarulala Ethiraja Ramanuja
Jeeyar Swami v. State of T.N. [Seshammal v. State of T.N.,
(1972) 2 SCC 11 sub nom His Holiness Srimad Perarulala Ethiraja
Ramanuja Jeeyar Swami v. State of T.N., AIR 1972 SC 1586] it
was held that this article guarantees freedom to practise rituals
and ceremonies which are integral parts of a religion. In Rev.
Stainislaus v. State of M.P. [(1977) 1 SCC 677 : 1977 SCC (Cri)
147 : AIR 1977 SC 908] it was held that right to practise and
propagate not only matters of faith or belief but all those rituals
and practices which are regarded as integral parts of a religion by
the followers of a doctrine. In S.P. Mittal v. Union of
India [(1983) 1 SCC 51 : AIR 1983 SC 1] it was held that
freedom or right involving the conscience must naturally receive
a wide interpretation. The suit filed was thus maintainable. The
injunction and prohibition sought from interfering in
administration of Church are certainly matters which pertain to
the religious office. Even the declaration that the Church is
episcopal is covered in the expansive expression of religion as
explained in Mittal case [(1983) 1 SCC 51 : AIR 1983 SC 1] . The
word 'episcopal' means "of or pertaining to bishops, having a
government vested in bishop". A suit for declaration of such a
right would be maintainable under Section 9. Not only because it
is claim to an office but also because there is no other forum
where such dispute can be resolved. If a dispute arises whether a
particular religious shrine has ceased to be so due to its anti-
religion activities then the followers of that religion or belief and
faith cannot be denied the right to approach the court.
Explanation I is not restrictive of the right or matters pertaining
to religion. It only removes the doubt to enable the courts to
entertain suits where dispute about religious office is involved.
The right to religion having become fundamental right, it would
include the right to seek declaration that the Church was
episcopal. But the court may refrain from adjudicating upon
purely religious matters as it may be handicapped to enter into
the hazardous hemisphere of religion. Maintainability of the suit
should not be confused with exercise of jurisdiction. Nor is there
any merit in the submission that Explanation I could not save
suits where the right to property or to an office was not
contested or where the said right depended on decisions of
questions as to religious faith, belief, doctrine or creed. The
emphasis on the expression "is contested" used in Explanation I
is not of any consequence. It widens the ambit of the Explanation
and includes in its fold any right which is contested to be a right
of civil nature even though such right may depend on decisions of
questions relating to religious rights or ceremonies. But from that
it cannot be inferred that where the right to office or property is
not contested it would cease to be a suit cognizable under
Section 9. The argument is not available on facts but that shall
be adverted to later. Suffice it to mention that
in Ugamsingh [(1970) 3 SCC 831 : (1971) 2 SCR 836] the
plaintiff's claim was that they were entitled to worship without
interference of the idol of Adeshwarji in the temple named after
him at Paroli according to tenets observed by the Digambari sect
of the Jain religion. It was held that from the pleadings and the
controversy between the parties it was clear that the issue was
not one which was confined merely to rites and rituals but one
which effected the rights of worship. If the Digambaris have a
right to worship at the temple, the attempt of the Swetamberis to
put Chakshus or to place Dhwajadand or Kalash in accordance
with their tenets and to claim that the idol is a Swetamberi idol
was to preclude the Digambaris from exercising their right to
worship at the temple, with respect to which a civil suit is
maintainable under Section 9 of the Civil Procedure Code. The
scope of the section was thus expanded to include even right to
worship.
38. "Religion is the belief which binds spiritual nature of
men to supernatural being." It includes worship, belief,
faith, devotion etc. and extends to rituals. Religious right
is the right of a person believing in a particular faith to
practise it, preach it and profess it. It is civil in nature. The
dispute about the religious office is a civil dispute as it
involves disputes relating to rights which may be religious
in nature but are civil in consequence. Civil wrong is
explained by Salmond as a private wrong. He has extracted
Blackstone who has described private wrongs as "infringement or
privation of the private or civil rights belonging to individuals,
considered as individuals, and are thereupon frequently termed
civil injuries". Any infringement with a right as a member of any
religious order is violative of civil wrong. This is the letter and
spirit of Explanation I to Section 9. In American Jurisprudence,
Vol. 66, para 45, the law is explained thus:
"The (the) civil courts have steadily asserted their want of
jurisdiction to hear and determine any controversy relating
thereto. On the other hand, the civil courts have without
hesitation exercised their jurisdiction to protect the
temporalities of such bodies, for whenever rights of property
are invaded, the law must interpose equally in those
instances where the dispute is as to church property and in
those where it is not."
39. In Long v. Bishop of Cape Town [(1863) 1 Moo PCC NS
411 : 11 WR 900] where the Bishop held an ecclesiastical court
for proceeding against the appellant who was authorised to
perform ecclesiastical duties in a parish was held as coram non
judice as he had no authority to hold an ecclesiastical court. The
court held that where no church was established by law it was in
the same situation as any religious body, therefore, if any
tribunal was constituted by such body which was not court then
its decision would be binding only if it was exercised within the
scope of the authority. In Dame Henriette Brown v. Les Cure Et
Marguilliers De L'Oeuvre Et Fabrique De Notre Dame De
Motreal [(1874-75) LR 6 PC 157], the Privy Council while
following the decision in Long [(1863) 1 Moo PCC NS 411 : 11
WR 900] held that where a church was merely a private and
voluntary religious society resting only upon a consensual basis
courts of justice were still bound when due complaint was made
that a member of the society was injured in any manner of a
mixed spiritual and temporal character to inquire into the laws
and rules of the tribunal or authority which inflicted the alleged
injury and ascertain whether the act complained of was law and
discipline of the church and whether the sentence was justifiably
pronounced by a competent authority. The decision
in Long [(1863) 1 Moo PCC NS 411 : 11 WR 900] has been
followed in this country in Anandrav Bhikajiphadke v. Shankar
Daji Charya [ILR (1883) 7 Bom 323] where certain persons
brought a suit that their right of worship in the sanctuary of a
temple was being infringed, it was held that the right of exclusive
worship of an idol at particular place set up by a caste was civil
right.
40. The law being such it may be seen whether the suit filed
by the respondent is covered within the four corners of Section 9.
Whether the relief sought by the respondent was regarding the
status or office of the Metropolitan? In Original Suit No. 4 of 1979
it is claimed that various persons said to be ordained as
metropolitans have no right to act as such and priest ordained in
turn by them would equally have no right to act as such, all these
being usurpers. Further the office of metropolitan in the
Malankara Church has, with it, attached legal obligations for the
non-performance of which sanctions or penalties are provided is
clear both from the canonical law as well as the Constitution.
Apart from this four suits, namely, Original Suits Nos. 2, 5, 6 and
8 of 1979 concern themselves solely with the interference in the
administration of Church properties being scheduled specifically
in the respective plaints. Similarly the claim founded on
allegations against wrong persons exercising the functions by
those who have been wrongly designated as metropolitans and
are interfering with the right to worship in churches appears to
be squarely covered in Section 9. The prayers in Original Suit No.
4 of 1979 were 'A' to 'H'. Even if the prayer 'A' which seeks a
declaration that Malankara Church is episcopal in character
ignored the suit for reliefs 'E', 'F', 'G' and 'H' which read as under
cannot be held to be touching only religious rites and therefore,
are not cognizable by civil court:
"E. To declare that any priest who refuses to recognize the
authority of the Catholicos and Malankara Metropolitan, the
2nd plaintiff and other Metropolitans under him is not entitled
to minister in any of the churches or its institutions in
Malankara.
F. To prohibit Defendants 1 to 3 by an order or permanent
injunction from ordaining priests or deacons or performing
any other sacraments, services etc. for the Malankara Church
or its institutions.
G. To prohibit Defendant 4 onwards from performing any
religious services as sacraments whatsoever in or about any
of the churches of Malankara and for the Malankara Church or
its constituent churches or institutions.
H. To prohibit the defendants from interfering in any manner
with the administration of the Malankara Church."
The appellant placed reliance on various averments in different
IAs, written arguments and affidavits to demonstrate that the
nature of relief sought was beyond the pale of Section 9. In fact
this dispute was not seriously raised before the courts below. The
dispute is going on since long and this is as stated the third
round in this Court. But it appears that in earlier litigations in the
Royal Court of Final Appeal and the Supreme Court no such
objection was taken that the suit was not maintainable. The
submission that the locus standi of the respondent was suspect
as they having been excommunicated by the Synod of the
Orthodox Church with Patriarch as its head, did not have any
substance as in Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay [1962 Supp (2) SCR 496 : AIR 1962 SC 853] a
Constitution Bench of this Court held that the exercise of the
power of excommunication by the religious head on religious
ground form part of the management of its affairs in matters of
religion and since Articles 25 and 26 of the Constitution protect
not merely religious doctrine and beliefs but also acts done in
pursuance of religion and themselves carrying the rituals and
observations, ceremonies and right of worship which are integral
part of religion it is difficult to agree that there was no forum for
vindication of such right.
43. In reading Section 9 widely and construing it expansively
the jurisdiction to entertain a suit for declaration whether the
church was episcopal or congregational and whether the
appellants could have been ordained by the Patriarch when it was
contrary to the earlier decision given by this Court that the
ordination was required to be approved by Synod, the Court is
not being asked to adjudicate on faith but whether the exercise
of right in respect of faith was valid. The Grace no doubt comes
from Patriarch and on that there is no dispute but whether the
Grace came in accordance with the Canon or the Constitution is
certainly a matter which would fall within Section 9 CPC. Status
and office are no doubt different but what was challenged is not
the status or faith in Patriarch but the exercise of right by
Patriarch which interfered with the Office of Catholico held
validly. Apart from it, as stated earlier, after coming into force of
the Constitution, Article 25 guarantees a fundamental right to
every citizen of his conscience, faith and belief, irrespective of
caste, creed and sex, the infringement of which is enforceable in
a court of law and such court can be none else except the civil
courts. It would be travesty of justice to say that the
fundamental right guaranteed by the Constitution is
incapable of enforcement as there is no court which can
take cognizance of it. There is yet another aspect of the
matter that Section 9 debars only those suits which are
expressly or impliedly barred. No such statutory bar could
be pointed out. Therefore, the objection that the suit
under Section 9 CPC was not maintainable cannot be
accepted."
44. To come to prima facie conclusion about maintainability
of suit, it would be necessary to refer to plaint averments in
entirety. Admittedly, suit is for declaring plaintiff as Uttaradhikari of
Mutt; for mandatory injunction restraining defendant no.1 or his
followers from appointing defendant no.2 or any persons as
Shishya, Sanyasi or Uttaradhikari and for permanent injunction
restraining defendant no.1 from interfering from performing pooja
of idols of Mutt by plaintiff in any branches of Mutt etc. Thus, suit is
for declaration of plaintiff's right to office of Uttaradhikari of Mutt,
which by applying ratio in Most Rev. P.M.A. Metropolitan's case
(supra) would not attract bar under Section 9 of CPC and that suit
would be maintainable.
In MFA 6998/2018:
45. Before, proceeding on merits of application, a salutary
reference to considerations and necessary findings required to be
given while deciding application for temporary injunction would be
appropriate. Hon'ble Supreme Court in Gujarat Bottling Co. Ltd.
v. Coca Cola Co., reported in 1995 (5) SCC 545, held:
"43. The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring the exercise
of discretion of the court. While exercising the discretion the
court applies the following tests -- (i) whether the plaintiff has a
prima facie case; (ii) whether the balance of convenience is in
favour of the plaintiff; and (iii) whether the plaintiff would suffer
an irreparable injury if his prayer for interlocutory injunction is
disallowed. The decision whether or not to grant an
interlocutory injunction has to be taken at a time when the
existence of the legal right assailed by the plaintiff and its
alleged violation are both contested and uncertain and
remain uncertain till they are established at the trial on
evidence. Relief by way of interlocutory injunction is
granted to mitigate the risk of injustice to the plaintiff
during the period before that uncertainty could be
resolved. The object of the interlocutory injunction is to
protect the plaintiff against injury by violation of his right
for which he could not be adequately compensated in
damages recoverable in the action if the uncertainty were
resolved in his favour at the trial. The need for such
protection has, however, to be weighed against the
corresponding need of the defendant to be protected
against injury resulting from his having been prevented
from exercising his own legal rights for which he could not
be adequately compensated. The court must weigh one
need against another and determine where the "balance of
convenience" lies. ....."
46. Insofar as prima facie case, it is stated in plaint that
O.S.no.376/2016 was earlier filed by devotees of Mutt for settling
dispute regarding Peetadhipati of Mutt and which had ended in
compromise decree on 02.07.2017, with execution of 'MoU'
whereunder, VMT agreed to give up Peeta in favour of defendant
no.1 by ordaining him as Peetadhipati and on his becoming
Peetadhipati, plaintiff was to be announced as Uttaradhikari of Mutt.
It is stated, defendant no.1 was anointed as Peetadhipati on
03.07.2017 and in same function, plaintiff was announced as
Uttaradhikari, in presence of dignitaries. Thereafter on 4th and 5th
July, 2017, performed Samsthana Pooja at head office of Mutt,
thereby completing formalities for declaring plaintiff as
Uttaradhikari. It is pleaded, subsequently defendant no.1 began
preventing plaintiff from performing poojas as Uttaradhikari of Mutt,
etc., leading to filing of suit. On other hand, defendant no.1 not
only doubted suitability of plaintiff for anointment, but also disputed
completion of necessary formalities for ordainment of Uttaradhikari.
47. Interim prayer sought is to restrain defendant no.1
from anointing defendant no.2 or any other person as Uttaradhikari
of Mutt on ground that plaintiff has already been anointed as
Uttaradhikari. But, such anointment is seriously disputed.
48. To establish claim, plaintiff relies on assertions in plaint,
affidavits filed in support of applications; records in
O.S.no.376/2016 and two CDs containing video recording of
function anointing defendant no.1 as Peetadhipathi. It is seen,
during pendency of I.A.no.II, and before filing of I.A.no.1/2023,
trial commenced. Plaintiff was examined as PW.1 and certified copy
of decree in O.S.no.376/2016, joint memo, affidavits of Sri
Ranganatha Rao (plaintiff no.1 therein), VMT and defendant no.1,
'MoU' were marked as Exs.P1 to P6. Likewise, CDs, photographs
and Certificate under Section 65B of Indian Evidence Act were
marked as Exs.P7 to P13. Thereafter, matter was pending at stage
of cross-examination, when I.A.no.II was pressed.
49. In view of relief sought in applications, plaintiff requires
not only to prima facie establish that he was anointed as
Uttaradhikari, but also that same would be an embargo on powers
of defendant no.1 to appoint any other person as Uttaradhikari. But
as noted, there is no material to substantiate embargo, while there
is serious dispute about anointment of plaintiff as Uttaradhikari, as
defendant no.1 has consistently maintained that plaintiff was taken
as Shishya Sanyasi by VMT and recognized as such.
50. As pointed out by learned counsel for defendant no.1, in
his affidavit filed in support of I.A. for impleading by present
plaintiff, in O.S.no.376/2016, he described himself as Shishya
Sanyasi of VMT. But, said affidavit was prior to 02.07.2017 i.e. date
on which plaintiff claims to have been declared as Uttaradhikari by
defendant no.1. Therefore, his description in suits and applications
filed subsequent to 02.07.2017 would be relevant.
51. In O.S.no.5798/2017 filed on 23.08.2017 by devotees
of Mutt, there is assertion about present plaintiff being ordained
Shishya Sanyasi by VMT. There is no reference to declaration about
plaintiff being ordained Uttaradhikari in function held on
02.07.2017. Infact, claim of devotees (plaintiffs therein) that
ordainment of defendant no.1 by VMT on 02.07.2017 was in same
manner as in case of defendant no.1, and therefore, plaintiff would
be deemed anointed as Uttaradhikari, would contradict plaintiffs
claim.
52. Though, in O.S.no.6654/2017 filed during September,
2017, prayer sought by devotees was for declaring present plaintiff
ineligible to be anointed as Uttaradhikari, an interim order was
passed on 27.01.2020 directing to maintain status-quo regarding
status of parties qua Mutt till disposal of suit. It was observed
suitability of present plaintiff as Uttaradhikari would required to be
decided in O.S.no.3130/2018.
53. In O.S.no.16/2018 filed by devotees on 01.01.2018, it
was stated that present defendant no.1 had declared on
02.07.2017 that he would declare present plaintiff as Uttaradhikari
and declared so in 'Meeting that was held..'. It was however
asserted that necessary formalities were performed for anointing
present plaintiff as Uttaradhikari and he was recognized and acted
as Uttaradhikari.
54. In O.S.no.231/2018 filed later by devotees also, there
is reference to anointment of plaintiff as Shishya on 07.07.2016.
While questioning 'MoU', devotees states that anointment of
plaintiff as Shishya on 07.07.2016 would invalidate subsequent
anointment of defendant no.1 as Peetadhipati on 02.07.2017.
However, there is no reference to declaration of present plaintiff as
Uttaradhikari on 02.07.2017.
55. It is seen that all above suits are by devotees or
beneficiaries of Mutt, who claim to be interested in well being of
Mutt. As noted above, there is no specific assertion about
declaration of plaintiff as Uttaradhikari as claimed herein. In case,
plaintiff were declared as Uttaradhikari in a public function attended
by dignitaries on 02.07.2017, it would be highly unlikely that same
would have missed their attention. On other hand, declaration
sought about such anointment by inference would cast it in doubt
requiring trial.
56. Further, fact that suit has already progressed upto
stage of trial would render point for consideration about prima facie
case unnecessary, if not futile.
57. Insofar as balance of convenience and irreparable loss
and injury, it is seen, interim order granted in O.S.no.6654/2017
directing parties to maintain status-quo of status of parties qua
Mutt till it is decided in present suit. Same would sufficiently protect
interest of parties till disposal of suit. It is also seen, in
O.S.no.231/2018, devotees have stated that present plaintiff
ceased to act as Uttaradhikari in view of order of temporary
injunction granted in O.S.no.376/2016. Present suit is subsequent
to same. Therefore, it cannot be stated that plaintiff would suffer
irreparable loss and injury, if order of temporary injunction is
refused. And, balance of convenience does not lie in favour of
plaintiff.
58. Further, fact that I.A.no.II was filed along with suit, but,
pressed only when suit had proceeded to stage of trial, would be
one more factor to support conclusion. Even, fact that ad-interim
order of temporary injunction granted in O.S.no.16/2018 was later
vacated on ground of suppression of fact, would also support same.
In MFA 1280/2024:
59. Perusal of averments in affidavit filed in support of
I.A.no.1/2023 would reveal that during pendency of MFA
no.6998/2018, defendant no.1 had circulated messages by
WhatsApp about process for appointment of Uttaradhikari, which if
permitted would frustrate suit. Particulars about cause of action for
application would indicate that application was on different and
fresh cause of action than I.A.no.II.
60. As stated above, application was opposed, wherein
defendant no.1 denied allegation about circulation of messages. It
was specifically stated that there was no basis for apprehension of
plaintiffs as interim order of status quo dated 27.01.2020 granted
in O.S.no.6654/2017 was in operation. In view of above, findings in
MFA no.6998/2018 insofar as order passed by trial Court on
I.A.no.II (supra) would apply to present application also.
61. Since, I.A.no.1/2023 was filed seemingly on
subsequent/new cause of action, which was noted even by learned
trial Judge, in view of ratio laid down in Erach Boman Khavar's
case (supra), rejection of I.A.no.1/2023 applying principles of res
judicata would not be justified. However, same would not yield any
relief to applicant/plaintiff.
62. Therefore, common point for consideration in both
appeals is answered in negative.
63. Before concluding, it is seen that subject matter of
present suit namely, right of plaintiff to office of Uttaradhikari of
Mutt is directly or incidentally subject matter of several suits
namely:
i) O.S.no.5798/2017 pending before III Addl. City Civil
and Sessions Judge, (CCH-25), Bengaluru;
ii) O.S.no.6654/2017 pending before XX Addl. City Civil
and Sessions Judge (CCH-32), Bengaluru;
iii) O.S.no.16/2018 pending before XXXI Addl. City Civil
and Sessions Judge (CCH-14), Bengaluru;
iv) O.S.no.231/2018 pending before V Addl. Civil Judge
and JMFC, Mysore.
64. Therefore, there would be real likelihood of
contradicting or conflicting findings. Clubbing of all suits against
Mutt, involving right/claim of present plaintiff - Sri Vidya Vijaya
Theertharu to office of Uttaradhikari of Mutt would not only avoid
conflicting findings, but also amplify convenience to parties to lead
common evidence, especially since authors of all other suits are
devotees. For above reasons, it could also be appropriate if not
necessary to issue direction not to proceed with any new or other
suit/s involving same subject matter till it is finally decided in above
suits. Same would be in tune with spirit behind Section 24 of CPC
as explained in Kulwinder Kaur v. Kandi Friends Education
Trust reported in (2008) 3 SCC 659. Hence, following,
ORDER
(i) Both appeals are dismissed;
(ii) A direction is issued withdrawing following
cases from respective Courts, and transferring them to
XLI Additional City Civil and Sessions Judge (CCH-42),
Bengaluru, to be clubbed and tried along with
O.S.no.3130/2018 pending before it.
a. O.S.no.5798/2017 pending before III Addl.
City Civil and Sessions Judge, (CCH-25), Bengaluru;
b. O.S.no.6654/2017 pending before XX Addl.
City Civil and Sessions Judge (CCH-32), Bengaluru;
c. O.S.no.16/2018 pending before XXXI Addl.
City Civil and Sessions Judge (CCH-14), Bengaluru;
d. O.S.no.231/2018 pending before V Addl. Civil
Judge and JMFC, Mysore;
(iii) Any new/other suit involving same subject
matter shall not be proceeded with until disposal of
above matters.
(iv) All parties are directed to co-operate for early
conclusion.
(v) Likewise, learned trial judge is directed to
expedite disposal in accordance with law.
Sd/-
(RAVI V. HOSMANI)
JUDGE
AV/GRD
