Karnataka High Court
Sri G.V. Krishna vs Sri. Vysaraja Mutt (Sosale) on 7 April, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL 2020
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.7969/2014 (CPC)
C/W
M.F.A.NO.1798/2015 (CPC)
M.F.A.NO.7969/2014
BETWEEN :
1. SRI G.V.KRISHNA,
S/O LATE G.V.RAO,
AGED ABOUT 50 YEARS,
AT C-47, CENTURY CORBEL APARTMENTS,
60 FEET MAIN ROAD,
SAHAKARA NAGAR,
BANGALORE - 560 092.
2. SRI D R NARENDRA,
S/O LATE D A RAMACHANDRA RAO,
AGED ABOUT 54 YEARS,
NO.86, PUTTANNA ROAD,
BASAVANAGUDI,
BANGALORE - 560 004. ...APPELLANTS
(BY SRI C.V.SUDHINDRA, ADVOCATE)
AND :
1. SRI VYSARAJA MUTT (SOSALE)
NO.1, BENNE GOVINDAPPA STREET,
BASAVANAGUDI,
BANGALORE - 560004
REPRESENTED BY ITS ADMINISTRATOR,
SRI K JAIRAJ, IAS (RETD.)
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2. SRI VIDYA MANOHARA THIRTHA @ SHARATH,
S/O SRI UDDAVACHAR,
AGED ABOUT 29 YEARS,
NO.126, 3RD MAIN, 2ND CROSS,
KRISHNAMURTHY PURAM,
MYSORE -570 004.
3. SRI.J.SHUKACHAR
S/O LATE G.N.JAYATHIRTHACHAR,
@ VIDYA VACHASPATHI TEERTHA,
AGED ABOUT 59 YEARS,
NO.3249, 10TH CROSS,
RASTRAPATHI ROAD, NEW EXTENSION,
NANJANGUD,
MYSORE DISTRICT.
4. SRI.J.UDDAVACHAR
S/O LATE G.N.JAYATHIRTHACHAR,
@ VIDYA VACHASPATHI TEERTHA,
AGED ABOUT 61 YEARS,
NO.1226, 3RD MAIN,
2ND CROSS,
KRISHNAMURTHY PURAM,
MYSORE-570 004.
5. SMT.SRIMATHI
W/O SRI J.UDDAVACHAR,
AGED ABOUT 56 YEARS,
NO.1226, 3RD MAIN,
2ND CROSS, KRISHNAMURTHY PURAM,
MYSORE-570 004.
6. SRI.S.N.PRAKASH
S/O LATE NARAYANA DAS,
AGED ABOUT 55 YEARS,
NO.1161, 5TH MAIN ROAD,
A BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE-560 010.
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7. SRI.B.R.NATARAJ JOIS
S/O B.RAMANNA JOIS,
AGED ABOUT 51 YEARS,
NO.1029, 3RD CROSS,
9TH MAIN, VIVEKANANDA NAGAR,
CHAMARAJ MOHALLA,
MYSORE.
8. SRI.KUPPACHAR
S/O LATE RANGANATHA,
AGED ABOUT 60 YEARS,
NO.28, NAGOJIRAO STREET,
TRIPLICANE,
CHENNAI-600 005.
9. SRI.K.RAMALINGAM
S/O SRI R.KANDASWAMY,
AGED ABOUT 71 YEARS,
NO.34, KANAGAVEL COLONY,
RAJA MILL MAIN ROAD,
MADURAI-625 001
10. SRI P.PANDI
S/O LATE K.PARALU,
AGED 43 YEARS,
NO.6-A, RAJA MILL MAIN ROAD,
MANINAGARAM,
MADURAI-625 001
11. SRI.N.C.SHANMUGAM,
S/O N.C.SRINIVASALU CHETTY,
AGED ABOUT 63 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITTOOR DISTRICT,
ANDHRA PRADESH.
12. SMT.N.C.RAJESHWARAMMA
W/O LATE N.C.CHANDRA,
AGED ABOUT 51 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
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CHITTOOR DISTRICT,
ANDHRA PRADESH.
13. SRI.N.C.RAMESH
S/O SRI.SRINIVASALU CHETTY,
AGED ABOUT 55 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITOOR DISTRICT,
ANDHRA PRADESH.
14. SRI.N.C.HARI
S/O SRI SRINIVASALU CHETTY,
AGED ABOUT 50 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITOOR DISTRICT,
ANDHRA PRADESH.
15. SMT.N.C.SARALA
W/O SRI N.C.RAMESH,
AGED ABOUT 51 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITOOR DISTRICT,
ANDHRA PRADESH.
16. SRI.N.C.SHYAM KUMAR
S/O SRI N.C.CHANDRA,
AGED ABOUT 31 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITOOR DISTRICT,
ANDHRA PRADESH.
17. SRI.N.C.SANJEEV
S/O N.C.SHANMUGAM CHETTY,
AGED ABOUT 30 YEARS,
NO.123, T.P.AREA, TIRUPATHI,
CHITOOR DISTRICT,
ANDHRA PRADESH.
18. SRI.A.S.SATHISH KUMAR
S/O LATE A.K.SUBRAMANYAM,
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AGED ABOUT 40 YEARS,
NO.11-1-37, 2ND FLOOR,
A.G.K. BUILDINGS, GANDHI ROAD,
TIRUPATI TOWN,
TIRUPATI URBAN MANDAL,
CHITTOOR DISTRICT,
ANDHRA PRADESH.
19. SRI.G.K.V. RAJU,
S/O SRI.G.KRISHNAN,
AGED ABOUT 60 YEARS,
NO.55, AMMAM MANDAPAM ROAD,
SRIRANGAM,
THRICHIRAPALLI-620 006.
20. SRI.S.RAJA PERUMAL
S/O SRI.SUBBAIAH NAIDU,
AGED ABOUT 42 YEARS,
NO.6, MALLIGAIPOO AGRAHARAM,
SRIRANGAM,
THRICHIRAPALLI-620 006. ... RESPONDENTS
(BY SRI C S PRASANNA KUMAR, ADVOCATE FOR R1,
SRI JAYAKUMAR S PATIL, SR.COUNSEL FOR
SMT.N.SHARADA, ADVOCATE FOR R2 & R6
NOTICE TO R3 IS DISPENSED WITH V/O DT.7.9.2015,
SRI D G CHINNAPPA GOWDA, ADVOCATE FOR R7,
SRI D NAGARAJA REDDY, ADVOCATE FOR R18
R-4, R-5, R-11 TO R-17, R19 & R20 ARE SERVED
NOTICE TO R8 & 10 IS DISPENSED WITH V/O
DT.3.03.2016
R9 IS DELETED VIDE ORDER DATED 07.09.2015)
MFA NO.7969/2014 IS FILED UNDER SECTION 104(ffa)
OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER
DATED:6.9.2014 PASSED ON IA NO.2 IN O.S.NO.4479/2014
ON THE FILE OF THE PRINCIPAL CITY CIVIL & SESSIONS
JUDGE, BANGALORE, ALLOWING IA NO.2 FILED U/SEC 151
OF CPC.
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M.F.A.NO.1798/2015
BETWEEN
1. SRI DIVAKAR N S,
S/O LATE CKBC NARAYAN,
AGED ABOUT 49 YEARS,
RESIDING AT NO. 424,
2ND FLOOR, 13TH MAIN,
BSK 1ST STAGE,
BANGALORE-50.
2. SRI. GURURAJA H M,
S/O LATE H.S. MADHAVARAO,
AGED ABOUT 52 YEARS,
R/AT NO.24-3/1,
5TH MAIN ROAD,
TATA SILK FARM,
BASAVANAGUDI,
BANGALORE-04.
3. SRI. S.K. SATHYANARAYANA
S/O S.G. KALLAIAH,
AGED ABOUT 52 YEARS,
R/AT NO. 272,
ACHAR STREET,
CHICKPET,
TUMKUR-572101. ... APPELLANTS
(BY SMT SANDHYA, ADVOCATE)
AND
1. SRI VYSARAJA MUTT (SOSALE),
NO.1, BENNE GOVINDAPPA STREET,
BASAVANAGUDI,
BANGALORE-560 004.
REPRESENTED BY ITS ADMINISTRATOR
SRI. K. JAIRAJ, IAS (RETD)
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2. SRI. VIDYA MANOHARA THIRTHA @ SHARATH
S/O SRI UDDAVACHAR,
AGED ABOUT 30 YEARS,
NO.1226, 3RD MAIN, 2ND CROSS,
KRISHNAMURTHY PURAM,
MYSORE-570 004.
3. SRI. J. SHUKACHAR
S/O LATE G.N. JAYATHIRTHACHAR,
@ VIDYA VACHASPATHI TEERTHA,
AGED ABOUT 59 YEARS,
NO.3249, 10TH CROSS,
RASTRAPATHI ROAD,
NEW EXTENSION,
NANJANGUD,
MYSORE DISTRICT-571 301
4. SRI. J. UDDAVACHAR
S/O LATE G.N. JAYATHIRTHACHAR,
@ VIDYA VACHASPATHI TEERTHA
AGED ABOUT 61 YEARS,
NO.1226, 3RD MAIN, 2ND CROSS,
KRISHNAMURTHY PURAM,
MYSORE-570 004.
5. SMT. SRIMATHI
W/O SRI. J. UDDAVACHAR,
AGED ABOUT 56 YEARS,
NO.1226, 3RD MAIN, 2ND CROSS,
KRISHNAMURTHY PURAM,
MYSORE-570 004.
6. SRI. S. N. PRAKASH
S/O LATE NARAYANA DAS
AGED ABOUT 55 YEARS,
NO.1161, 5TH MAIN ROAD,
"A" BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE-560 010.
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7. SRI. B.R. NATARAJ JOIS
S/O B. RAMANNA JOIS,
AGED ABOUT 51 YEARS,
NO.1029, 3RD CROSS,
9TH MAIN, VIVEKANANDA NAGAR,
CHAMARAJ MOHALLA,
MYSORE - 570005.
8. SRI. KUPPACHAR
S/O LATE RANGANATHA,
AGED ABOUT 60 YEARS,
NO.28, NAGOJIRAO STREET,
TRIPLICANE,
CHENNAI-600 005.
9. SRI. K. RAMALINGAM
S/O SRI. R. KANDASWAMY,
55 YEARS,
NO.34, KANAGAVEL COLONY,
RAJA MILL MAIN ROAD,
MADURAI-625 001.
10. SRI. P. PANDI
S/O LATE K. PARALU,
55 YEARS,
NO.6-A, RAJA MILL MAIN ROAD,
MANINAGARAM,
MADURAI-625 001.
11. SRI. N.C. SHANMUGAM
S/O N.C. SRINIVASALU CHETTY,
AGED ABOUT 63 YEARS,
NO.123, T.P. AREA,
TIRUPATHI,
CHITTOOR DISTRICT,
ANDHRA PRADESH- 517 504.
12. SMT. N.C. RAJESHWARAMMA
W/O LATE N.C. CHANDRA,
60 YEARS
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NO. 123, T.P. AREA,
TIRUPATHI, CHITTOOR DISTRICT,
ANDHRA PRADESH- 571 504.
13. SRI. N.C. RAMESH
S/O SRI. SRINIVASALU CHETTY,
AGED ABOUT 55 YEARS,
NO.123, T.P. AREA,
TIRUPATHI,
CHITTOOR DISTRICT,
ANDHRA PRADESH - 517 504.
14. SRI. N.C. HARI
S/O SRI. SRINIVASALU CHETTY,
AGED ABOUT 50 YEARS,
NO.123, T.P. AREA,
TIRUPATHI,
CHITTOOR DISTRICT,
ANDHRA PRADESH -517 504.
15. SMT. N.C. SARALA
WIFE OF SRI. N.C. RAMESH,
AGED ABOUT 51 YEARS,
NO.123, T.P. AREA,
TIRUPATHI,
CHITTUR DISTRICT,
ANDHRA PRADESH -517 504.
16. SRI. N.C. SHYAM KUMAR
S/O SRI. N.C. CHANDRA,
AGED ABOUT 31 YEARS,
NO.123, T.P. AREA,
TIRUPATHI,
CHITTOOOR DISTRICT,
ANDHRA PRADESH -517 504.
17. SRI. N.C. SANJEEV
S/O N.C. SHANMUGAM CHETTY,
AGED ABOUT 30 YEARS,
NO.123, T.P. AREA,
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TIRUPATHI, CHITTUR DISTRICT,
ANDHRA PRADESH -517 504
18. SRI. A.S. SATHISH KUMAR
S/O LATE A.K. SUBRAMANYAM,
AGED ABOUT 40 YEARS,
NO.11-1-37, 2ND FLOOR,
A.G.K. BUILDINGS,
GANDHI ROAD,
TIRUPATI TOWN,
TIRUPATI URBAN MANDAL,
CHITTOOR DISTRICT,
ANDHRA PRADESH- 517 504.
19. SRI. G.K.V. RAJU
S/O SRI. G. KRISHNAN,
AGED ABOUT 60 YEARS,
NO.55, AMMAM MANDAPAM ROAD,
SRIRANGAM,
THRICHIRAPALLI-620 006.
20. SRI. S. RAJA PERUMAL
S/O SRI. SUBBAIAH NAIDU,
55 YEARS.
NO.6, MALLIGAIPOO AGRAHARAM,
SRIRANGAM,
THRICHIRAPALLI-620 006.
21. G.V. KRISHNA
S/O LATE G.V. RAO,
AGED ABOUT 50 YEARS,
AT C-47, CENTURY CORBEL APARTMENTS,
60 FEET MAIN ROAD,
SAHAKARA NAGAR,
BANGALORE-560 092.
22. SRI. D.R. NARENDRA
S/O LATE D.A. RAMACHANDRA RAO,
AGED ABOUT 54 YEARS,
NO.86, PUTTANNA ROAD,
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BASAVANAGUDI,
BANGALORE-560004. ... RESPONDENTS
THIS MFA IS FILED UNDER SECTION 104(ffa) OF THE
CPC, AGAINST THE ORDER DATED:6.9.2014 PASSED IN
O.S.NO.4479/2014 ON THE FILE OF THE PRINCIPAL CITY
CIVIL & SESSIONS JUDGE, BANGALORE, ALLOWING IA NO.2
FILED U/SEC 151 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
The appeal in MFA No.7969/2014 is filed by the plaintiffs No.1 and 2 in O.S.No.4479/2014 and the appeal in MFA No.1798/2015 is filed by the persons who are not parties to the suit. Both the appeals are filed challenging the order dated 6.9.2014, passed by the Prl. City Civil and Sessions Judge (CCH No.1), Bengaluru, on I.A.No.2 filed under section 151 of CPC, in O.S.No.4479/2014 and prayed this Court to set aside the same and grant such other relief as deems fit under the circumstances of the case.
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2. The factual matrix of the case is that the plaintiffs have filed the scheme suit for setting a scheme in respect of Sri Vyasaraj Mutt (Sosale). Along with the suit, an application under section 92 of CPC was also filed seeking grant of leave to institute the suit for the reasons mentioned in the application and also mentioned in the suit. The said suit was filed on 20.12.2013 along with the applications seeking interim orders in the nature of injunction and appointment of receivers etc.,. The Court was pleased to order notice against the respondents in pursuance of the same. The notices issued against the respondents were served both through regular process and also through paper publication. Despite the appearance before the Court, even after more than six months, the respondents did not file objections, but sought for time on one or the other pretext and proceeded in the matter. Hence the trial Court after hearing the parties granted leave and also allowed the application for injunction and
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appointment of receiver. Thus the administrator and advisory council continued to function under the orders of Civil Court as well as the order of the Government based on the report. The suit in O.S.No.4479/2014 came to be registered in view of granting of leave.
3. Aggrieved by the leave granted, vide order dated 11.6.2014, defendant No.6 has filed Civil Revision Petition No.235/2014 on the ground that the order is untenable and no opportunity was given to the respondents to file objections. This Court after hearing, passed an elaborate order dismissing the same, on 1.7.2014. Respondent No.2 who is defendant No.2 in the trial Court has filed an application before the trial Court under section 151 of CPC, praying the trial Court to revoke the earlier order granting of leave dated 11.6.2014 after the disposal of the CRP No.235/2014. The same is allowed. Hence it is contended in this appeal that the
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trial Judge has committed an error in allowing the said application revoking the order of leave granted earlier dated 11.6.2014 and in view of the same, eventually led to dismissal of the suit and hence the appellants without having any other alternative, approached this Court by filing this miscellaneous first appeal.
4. The appellants in MFA No.1798/2015 also filed the miscellaneous first appeal challenging the very same order but they are not parties in the trial Court. MFA No.7969/2014 was already pending questioning the impugned order and hence, this Court directed to put up MFA No.1798/2015 along with this appeal.
5. The main contention of the respondent herein before the trial Court while filing an application under section 151 of CPC is that the Mutt is not a trust and Mathadhipati is not a trustee and his rights are similar to life tenant. Therefore the
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Mathadhipati is not at all a trustee in the strict sense. The plaintiffs have filed the suit for their individual gain and the same can be seen from their interest since 2005 as their intention is to grab prestigious Peetha of the Mutt. In view of the Religious and Charitable Endowments Act of Tamilnadu and Andhra Pradesh, a suit under section 92 of CPC is not maintainable. It is also their contention that an application to revoke the leave granted can be filed any time and also it is their contention that the plaintiffs have filed several suits on the same facts and grounds and prayers are also similar and there cannot be one more suit in the nature of scheme suit. The trial Judge has committed an error in allowing the said application.
6. The main grounds urged in this appeal by the appellants/plaintiffs are that the trial Judge has committed an error in allowing the application which is wholly erroneous, contrary to law. The trial Court
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fell into three basic and fundamental errors, firstly, in its understanding of the very nature of its jurisdiction as inter-parties and adversarial, oblivious of the fact that it was the Court's own duty to protect a religious endowment, secondly, that in its presumptive approach that the 'Mutt' of the nature is concerned, in the case was not a trust within the meaning of section 92 of CPC and thirdly, as to the finality of the issue of grant of leave to sue having regard to the order of this Court in CRP No.235/2014 upholding the grant of leave to sue on a judicial assessment of the merits. Hence, the very impugned order is erroneous and the trial Court comes to an erroneous conclusion and it requires interference of this Court and the leave granted on 11.6.2014 requires to be set aside. The trial Judge has committed an error in not noticing the fact that State of Karnataka after examining the acts of breach of trust on the part of the 2 n d respondent, has appointed an administrator and also the same was
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done holding an enquiry as directed by this Court in W.P.No.7264/1991. The trial Judge also committed an error in coming to the conclusion that the plaintiffs have approached the Court with a private interest and failed to take note of the fact that they have no claims to the office and they were only vindicating a public right to have moral, ethical, Peethadhipati who could provide inspiring spiritual leadership. The finding of the trial Judge that the appellants were having private interest is based on surmises and conjunctures without any basis. The trial Court has committed an error that the appellants have not spelt out as to how they are interested in the management of the affairs of the 'Mutt'. The trial Court erred in not noticing that the 1st respondent 'Mutt' is a public religious and charitable endowment and the 2 n d respondent is a trustee of the said endowment and committed an error that the appellants have not stated as to how section 92 of CPC is attracted. The respondents have
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not urged the said grounds before the trial Court to revoke the leave granted earlier and erroneously committed an error that the appellants ought to have approached this Court in other suits and failed to take note of the fact that a scheme for the management of the affairs of the 1 s t respondent 'Mutt' could only be done in a suit filed under section 92 of CPC and could not be done in the suits filed other than under section 92 of CPC. Hence the order impugned is liable to be set aside.
7. The counsel in support of his contention relied upon the order passed by this Court earlier in CRP No.235/2014 and contend that once the granting of leave has been upheld by this Court in CRP No.235/2014, and when the same has been attained its finality, the trial Judge ought not to have entertained the application filed under section 151 of CPC to revoke the order. The counsel also relied upon the judgment of the Apex Court in the matter of
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G.Ramegowd a, Major, Etc., vs. Special Land Acquisition Off icer, Bangalore reported in 1988 SCR (3) 198,, and brought to the notice of this Court that in this judgment the Apex Court held that, the fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependant orders'. If the order excusing the delay is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory.
8. Referring to the said judgment the counsel would contend that no need to challenge the order dated 9.10.2014, disposing of O.S.No.4479/2014, consequent to the order revoking the grant of leave to institute the suit, as can be seen from the order itself
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a doctrine of 'dependant orders' take care of such situation. In fact, the order granting leave gave birth to the suit, if leave is revoked, the very suit goes. The counsel also would contend that the suit in O.S.No.2898/2015 being a suit under section 9 of CPC for declaration cannot be compared to suit filed under section 92 of CPC and none of the contentions of the respondents merit consideration in the absence of filing of objection and the written statement and order of revoking leave is also hit by doctrine of merger. In support of his contention, the counsel relies upon the judgment in the matter of M/s. Gojer Brothers (P) Ltd., vs. Shri Ratan Lal Singh reported in AIR 1974 SC 1380, as it remains the order of the Hon'ble High Court.
9. The counsel also relied upon the judgment of Madras High Court Kota Kanakayya and Anr. Vs. Kamepalli Lakshmayya and Ors., reported in AIR 1951 Madr as 218 and referring to this judgment
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would contend that the Madras High Court observed that, it has always been held in this Court that an appeal against a preliminary order if allowed makes an appeal against a final order on the same grounds unnecessary though another appeal may have to be filed if it has reference to what happened after the preliminary order was passed. Referring to this judgment, the counsel would contend there was no need to challenge the other order which passed subsequently.
10. On the other hand, the counsel appearing for the respondent No.1 would vehemently contend that the suit is filed under section 92 of CPC and the trial Judge after considering the material on record granted leave on 11.6.2014 and the question before this Court is, once the said order has been questioned in CRP No.235/2014 and the same was dismissed and it has reached its finality and hence the trial Court ought not to have entertained the
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application. The other aspect has to be examined before this Court is whether there was any justifiable ground for revoking the leave already granted and the same can be entertained by the Court only in two circumstances. When leave under section 92 is granted without notice to the respondents and in a situation where both the parties have not been heard and an order has been passed and in the case on hand there was no such situation and hence the impugned order of revoking the leave is erroneous. In support of the contention the counsel relied upon the judgment reported in AIR 1974 SC 1380, and brought to the notice of this Court paragraph No.10 of the judgment and would contend that the juristic doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject matter. In other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the superior Court. Referring to this
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judgment, the counsel would contend that, once this Court has upheld the order of the trial Judge granting leave to proceed in the case, the trial Judge ought not to have entertained the said application.
11. The counsel appearing for the respondents No.2 and 6 in their arguments have vehemently contended that the trial Judge after considering the grounds urged in the application considered the matter in length and passed the impugned order and rightly revoked the leave granted in favour of the appellants herein in coming to the conclusion that there was no any public interest and only in private interest they have approached the Court and further observed that the petition is one for vindicating the individual right, 'Mutt' is not a trust and Mathadhipathi is not a trustee and prayer for removal of respondent No.2, which is a religious office does not fall under section 92 of CPC and further would contend that the impugned order is not
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maintainable under the provisions of Order 43 of CPC.
12. The counsel in support of his arguments relied upon the judgment in the matter of Sri Gurupad ayya Char an tayya Ad avimath vs. Chikkayya reported in 1979 (2) Kar.L.J. 53 and referred to paragraph No.13 of the judgment and referring to this judgment, the counsel would contend that, there cannot be a Mathadhipati without a Math. The Mathadhipati is a spiritual head or a spiritual superior. The primary object of a Math is to maintain a competent line of religious teachers by propagating religious doctrines of order or sect. Referring to this judgment, the counsel would contend that, the general rule of law as provided under section 9 of CPC is unless there is an express or implied bar, entertainment of the suit of civil nature, the ordinary civil Courts are bound to entertain the claim and authorities under the Act have no jurisdiction to
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decide the dispute as to succession to the headship of the Math.
13. The counsel also relied upon the judgment in the matter of Ratilal Panachand Gandhi and others vs. S tate of Bombay and others reported in AIR 1954 SC 388, and brought to the notice of this Court paragraph No.17 and referring to the same, the counsel would contend that, if the author of the trust chooses to appoint the Charity Commissioner, a trustee, no objection can possibly be taken to such action; but if the Court is authorized to make such appointment, the provisions of section 37 in the general form as it stands appear to open to serious objection. If we take for example the case of a religious institution like a Math at the head of which stands the Mathadhipati or a spiritual superior. The Mathadhipati is a trustee according to the provisions of the Act and if the Court is competent to appoint the Charity Commissioner as a superior of a Math,
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the result would be disastrous and it would amount to a flagrant violation of the constitutional guarantee which religious institution have under the constitution in regard to the management of its religious affairs and hence the Court cannot invoke its jurisdiction. The counsel also relied upon the judgment in the matter of Govindan vs. Koovalasseri Sree Mahadevar Kshethr am Trust and others [AIR 2002 Ker ala 47].
14. The counsel also relied upon the judgment in the matter of Vidyod aya Trust vs. Mohan Pr asad R. and others reported in (2008) 4 SCC 115 and brought to the notice of this Court paragraph No.15 and 16 regarding invoking of section 92 of CPC.
15. The counsel also relied upon the judgment in the matter of The Commissioner, Hindu Religious Endowmen ts, Madr as vs. Sri Lakshmindr a Thirth a S wamiar of Sri Shirur Mutt reported in AIR 1954 SC 282, and brought to the notice of this Court
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paragraph No.10 of the judgment with regard to the Math does not come within the description of a religious denomination as provided for under Article 26 of the constitution.
16. The counsel also relied upon the judgment S wami Par matmanand S ar aswati and another vs. Ramji Tr ipathi and another, reported in AIR 1974 SC 2141, and brought to the notice of this Court paragraph No.10, 11 and 12 and referring to the same, would contend that the very institution of a suit under section 92 of CPC, if it is clear that the plaintiffs are not suing to vindicate the right of public but are seeking a declaration of their individual and personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be out side the scope of section 92 of CPC. The counsel also relied upon the order passed in W.P.No.5039/2013 and referring to the said order, the counsel would
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contend that, the Court has to take note of section 92 of CPC, and consider the very scope and object of section 92 of CPC. The counsel referring to all these material and principles laid down in the judgments referred supra, would contend that the trial Judge has not committed any error in passing such an order.
17. Having heard the arguments of appellants' counsel and also the counsel representing for the respective respondents, the point that arises for consideration of this Court is, whether the trial Judge has committed an error in allowing I.A.No.2 revoking the granting of leave granted earlier and it requires interference of this Court.
18. Admittedly the application is filed under section 92 read with Order 7 Rule 1 of CPC and in pursuance of the said application, notice has been ordered and the respondents have represented through their counsel. It is also noticed by this Court
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in CRP No.235/2014 that, more than for a period of six months in spite of they have represented through their counsel, did not file any written statement or objections to the petition. Having considered the material on record and also the grounds urged in the petition, considered the application filed by the petitioner and passed the order.
19. This Court in paragraph No.8 of the order has observed that, of course though stage was not set for hearing, but, objections was sought to be filed. When objections were not filed, based on the available material on record, the trial Court passed an order and it cannot be said that no opportunity was given. This Court while referring the order sheet also noticed that notices were issued to respondents on 27.1.2014 and subsequently when the matter was posted on 7.6.2014, the respondents did not appear, the case was adjourned to 11.6.2014 and noted that objections are not filed and impugned order came to
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be passed. The same was challenged and while dismissing the CRP, observed that the matter is still open to be contested and decision yet to be taken during the course of dealing with the suit, leave granted by Civil Court can be revoked depending upon the facts and circumstances of the case. It is further observed that an opportunity to file objections was given to the petitioner but he did not do so. The impugned order came to be passed, which demonstrate that sufficient opportunity was given and therefore did not entertain the revision petition.
20. It has to be noted that the order of granting leave was challenged before this Court in CRP and the same was dismissed, vide order dated 1.7.2014. It is also important to note that the respondent who made an application before the trial Court filing an application under section 151 of CPC was aware of the order and he represented through counsel and he did not choose to challenge the order
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dated 11.6.2014 and immediately after the disposal of CRP No.235/2014, which was filed by the 6 t h defendant in the original suit, he files an application before the trial Court seeking the relief of revoking of the earlier order. He also did not choose to file objections and written statement before the Court objecting seeking relief of granting leave of the Court in favour of the petitioner. The order passed by the trial Court has attained its finality as contended by the appellants herein and also the 1 s t respondent. No doubt, an application can be filed before the Court for invoking of the same. But the same has to be considered based on the material and whether justifiable grounds are urged to revoke the leave also to be considered by the trail Judge.
21. In the case on hand, it has to be noted that before granting the leave, the trial Court has issued notices against the respondents and they did not choose to file any objections or written statement and
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also they have been heard and order has been passed and when such being the case, the trial Judge ought not to have entertained the application for revoking the order. It is also important to note that the impugned order was questioned in CRP No.235/2014 and since the same has been attained finality, there is a force in the contention of the appellants' counsel and also the 1st respondent's counsel that the doctrine of merger which has been explained in M/s.Gojer Brothers (P) Ltd., vs. Ratan Lal Singh [AIR 1974 SC 1380], categorically held that once the doctrine of merger applies, the trial Court ought not to have taken cognizance of the said application. If the leave has been granted without giving an opportunity and notice, then there would have been force in the contention of the respondents herein and this Court also categorically held in CRP No.235/2014 that an opportunity was given and the said opportunity was not utilized by the respondents.
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22. On a perusal of the impugned order, which has been questioned before this Court, no doubt in the detailed order the trial Judge passed an order revoking the leave granted earlier, in paragraph No.172 the trial Judge has observed that the nature of relief sought in O.S.No.4479/2014 which inter alia include some of the reliefs sought by the plaintiffs in O.S.No.2898/2005 and it is not the relief sought by the plaintiff in O.S.No.2898/2005 which is pending before the CCH No.19 and the said observation is erroneous for the reason that the said suit is not filed by the plaintiffs.
23. It is also important to note that the nature of the relief sought in O.S.No.2898/2005 is different from the nature of the relief sought in the present suit and it may include some of the reliefs but while invoking section 92 of CPC, the Court has to take note of the grounds urged in the suit and also the relief sought is only with regard to the framing of
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scheme in order to protect the interest of the institution and misuse of the institution by the person who is in the helm of affairs is the object to frame a suit and when such is the scope under section 92 of CPC, the trial Judge ought not to have come to such a conclusion.
24. It is also important to note that the trial Judge has formed an opinion that the plaintiffs have filed the suit with the private interest not in the interest of general public and while considering the leave of the Court, the Court has to take note of the material available on record, particularly the contents of the affidavit filed in support of the application and an erroneous observation has been made in paragraph No.178 that, the plaintiffs have concealed the fact that they are the active participants in the disputes involved in O.S.No.2898/2005 which indicates that the plaintiffs have some private interest.
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25. It has to be noted that the plaintiffs have not sought for the relief to appoint them as pontiff and only relief sought in the petition to frame a scheme to protect the interest of the Math, which has been mis-utilized by the 2 n d respondent herein. When such is the relief, the question of private interest does not arise and the very conclusion of the trial Judge in entertaining the application in coming to the conclusion that the plaintiffs having some private interest cannot be adjudicated before the trial. The very approach of the trial Court is erroneous. The trial Judge also committed an error that the property is not a trust property and defendant No.1 Math and hence the suit cannot be filed and the relief sought cannot be granted in the said suit is also erroneous finding. Unless the said issue has been decided by the trial Court, the Court cannot come to such a conclusion in a preliminary stage.
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26. On a perusal of the application which is filed before the trial Court, the only contention raised is that section 92 of CPC is not attracted and the same requires an enquiry and the object of section 92 of CPC is to protect the interest of the general public in respect of the public trust and whether it is a public trust or private trust has to be ascertained during the trial. The same has not been done. Only based on the contention raised in the application, the trial Judge has formed such an opinion.
27. It is pertinent to note that, in paragraph No.185 of the order of the trial Court, it is observed that the plaintiff should have approached the Court in O.S.No.2898/2005 and sought for permission to come on record as one of the defendants or as co- plaintiffs and contest the matter, which is not done so. It has to be noted that the trial Judge in one breath comes to the conclusion that the plaintiffs are
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the parties in the said suit and are active participants in the disputes involved as observed in paragraph No.177 and 178 and the very finding of the trial Court in paragraph No.185 is contrary to the observation made in paragraph No.177 and 178 and here it is mentioned that they have sought for permission to come on record as one of the defendants or as co-plaintiffs and hence it is clear that the trial Judge did not apply his mind while passing the impugned order and not sure whether they are parties or not and also did not apply its mind and comes to erroneous conclusion that they can seek permission to come on record.
28. The trial Judge also while formulating point in paragraph No.187 has observed that how the plaintiffs are interested in the management or affairs of the Math is not explicitly made out by the plaintiffs in very clear succinct terms either in the body of the plaint or in the body of the petition under
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section 92 of CPC, except stating that they are the devotees of defendant No.1 Math and they are followers of the Math since their childhood and it has to be noted that on perusal of the petition, several allegations are made particularly against the 2 n d defendant and while invoking section 92 of CPC, the interest of general public is paramount consideration to entertain the suit for framing of scheme. When such a relief has been sought and allegations are made particularly against the defendant No.2 that he is misusing the same, the very finding of the trial Court in paragraph No.187 that the plaintiffs have not spelt out the reasons for approaching the Court is erroneous and the same is contrary to the pleadings made in the petition.
29. The Trial Judge has also committed an error in not noticing the fact that the State of Karnataka after examining the acts of breach of trust on the part of the 2nd respondent, has appointed an
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administrator and also the same was done holding an enquiry as directed by this Court in W.P.No.2764/1991 and failed to take note of the fact that, an Administrator was appointed to look after the affairs and not discussed the same in the order but comes to a conclusion that, the plaintiffs have approached the Court with a private interest and the same is against the enquiry report. The contention of the appellant that the said fact also has not been considered by the trial Court is evident on perusal of the records and there is a force in the contention of the appellants' counsel that the same has not been considered by the trial Court.
30. Having considered the reasoning of the trial Court and also considering the fact that already the trial Judge by giving an opportunity to the respondents, which has not been utilized by the respondents even in spite of the notice was served on them, for more than a period of six months did not
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choose to file any objections and written statement and thereafter the same was considered and the order was also questioned by defendant No.6 before this Court by filing CRP and the same was dismissed and the same also attained its finality. Defendant No.2 who files an application I.A.No.2 did not challenge the earlier order in spite of he had the knowledge of the earlier order of granting leave. Only after the disposal of CRP, he makes such an application and the same was entertained erroneously by the trial Judge and the observations made above clearly points out that the trial Judge has failed to take note of the very scope and ambit of section 92 of CPC and proceeded in an erroneous direction. The very observation made in the order is contrary to the records and even the findings are contrary to his own findings and erroneously revoked the order of granting leave to the plaintiff. The same has to be considered on merits and whether it is a fit case to invoke section 92 of CPC and grant the relief
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as sought in the suit or framing a scheme in order to protect the interest of the general public, particularly who are being the devotees of the said Math has to be considered on merits. Hence this Court is of the opinion that the trial Court has committed an error in revoking the leave granted earlier and the same is contrary to the material on record and also the pleadings available on record and the trial Court has committed fundamental error as contended by the appellants and hence the same has to be set aside. There is no need to challenge the other order of dismissal of suit since the very revocation of the leave which eventually led to dismissal of the suit and the principles laid down in the judgment referred supra are aptly applicable that the said order is dependant order and doctrine of merger applies.
31. In view of the discussions made above, this Court proceed to pass the following:
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ORDER MFA No.7969/2014 is allowed. The impugned order dated 6.9.2014 is hereby set aside. The trial Judge is directed to proceed with the matter in accordance with law within the ambit of section 92 of CPC for framing of scheme on merits.
The appeal filed by the appellants in MFA No.1798/2015 is dismissed as it has become infructuous in view of the order passed in MFA No.7969/2014, as they are not parties to the suit and their locus-standi is also not determined in the present miscellaneous first appeal.
In view of dismissal of appeal in MFA.1798/2015 for reasons stated supra, question of considering applications in IA.2 and 3 of 2015 for grant of leave as well as condonation of delay does not arise. Accordingly, they stand disposed of.
Sd/-
JUDGE nd/-