Karnataka High Court
Jagadguru Sri Abhinava vs Shri Jagadguru (Abhinava ) Shivanand ... on 23 April, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:6718
WP No. 107781 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 107781 OF 2023 (GM-CPC)
BETWEEN:
JAGADGURU SRI ABINAVA
SADASHIVANAD SWAMIGALU @
SADASHIVANAND BHARATHI SWAMIGALU
AGE: 36 YEARS, OCC: DHARMOPADESHA,
R/O: SHIVANAND MATH, KALASAPUR ROAD,
GADAG-582101.
...PETITIONER
(BY SRI G.R. GURUMATH, SENIOR ADV. FOR
SRI SHRINAND PACHCHAPURE, ADVOCATE )
AND:
SHRI JAGADGURU (ABHINAVA) SHIVANAND SWAMI,
AGE: 77 YEARS, OCC: DHARMOPADESHA,
R/O: SHIVANAND MATH, KALASAPUR ROAD,
GADAG-582101.
...RESPONDENT
(BY SRI JAYAKUMAR PATIL, SR. ADV. FOR
SRI SHIVARAJ C. BELLAKKI AND
CHANDRASHEKAR
SRI V.M. SHEELAVANT, ADVOCATES)
LAXMAN
KATTIMANI
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
COURT OF
KARNATAKA
DHARWAD BENCH
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 15/02/2023
PASSED BY THE COURT OF ADDL. SENIOR CIVIL JUDGE GADAG IN
M.A.NO.2/2023 CONFIRMING THE ORDER DATED 19/01/2023
PASSED BY THE COURT OF PRL. CIVIL JUDGE & JMFC, GADAG ON
I.A. NO.2 IN O.S. NO.4/2023 MARKED AT ANNEXURE-A & B
RESPECTIVELY AND ETC.
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NC: 2024:KHC-D:6718
WP No. 107781 of 2023
THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 04/03/2024, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Challenging order dated 15.02.2023 passed by Additional Senior Civil Judge, Gadag, in M.A.no.2/2023 confirming order dated 19.01.2023 passed by Prl.Civil Judge and JMFC, Gadag, in O.S.no.4/2023 on I.A.no.2 and seeking to allow I.A.no.2, this writ petition is filed.
2. Sri G.R.Gurumath, learned Senior Counsel appearing for Shrinand Pachchapure, learned advocate for petitioner submitted, petitioner was plaintiff in O.S.no.4/2023 on file of Principal Civil Judge and JMFC, Gadag filed seeking declaration that cancellation deed dated 24.11.2022 and resolution dated 11.11.2022 were null and void and not binding on plaintiff and for consequential relief of permanent injunction restraining defendant from obstructing plaintiff conducting affairs of Shri Jagadguru Shivanand Math, Gadag (hereinafter referred to as 'Math') and performing his duties as Mahant- Peethadhikari of Math etc. -3- NC: 2024:KHC-D:6718 WP No. 107781 of 2023
3. In said suit, plaintiff had filed I.A.no.2 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure ('CPC' for short) for temporary injunction restraining defendant from obstructing plaintiff in smooth functioning of Math. It was submitted, defendant was previous Mahant-Peethadhikari. On 20.07.2018, defendant performed necessary pooja and religious customs, in presence of Swamijis of other Maths and appointed plaintiff as Uttaradhikhari of Math. His name was changed from Kaivalanand Swami to Jagadguru Shri Abhinava Sadashivanand Swamigalu, under a deed registered before Sub-Registrar, Gadag. Thereafter, on 22.02.2020, defendant appointed plaintiff as Mahant Peethadhikari of Math in a public function as per religious customs and after Dharmopadesha, Vedavedanta Bhodana etc. Said function was arranged by distributing invitation cards and in presence of public, widely reported by press and media.
4. Thereafter, when plaintiff was managing affairs of Math, he learnt about misuse of property and funds of Math by defendant and questioned same. Since then, defendant began to misbehave with plaintiff, which was brought notice of Swamijis of other Maths and disciples, when he realized that -4- NC: 2024:KHC-D:6718 WP No. 107781 of 2023 without any power or authority, defendant had passed illegal resolution on 11.11.2022 removing plaintiff from Uttaradhikari of Math and registering a document dated 28.11.2022 titled Cancellation Deed of Uttaradhikari of Shri Math dated 25.07.2018. It was submitted, plaintiff was occupying a room inside Math and when plaintiff was preparing for organizing Car Festival as part of his duties as Mahant - Peethadhikari, defendant attempted to dispossess plaintiff from his room in Math. Plaintiff's attempts to seek assistance from Deputy Commissioner etc. went in vain and therefore, sought for temporary injunction.
5. It was submitted that since date of appointment, plaintiff was performing functions as Mahant - Peethadhikari without any interference. It was submitted, without any notice or opportunity, there could be no valid removal. And unilateral cancellation of anointment was impermissible. Without considering these factual and legal aspects, trial Court refused to grant temporary injunction.
6. It was submitted, trial Court had come to prima- facie conclusion that photographs and Newspaper reports etc. -5- NC: 2024:KHC-D:6718 WP No. 107781 of 2023 produced by plaintiff prima facie indicated that he was appointed as Peethadhikari of Math by defendant in function held on 22.02.2020 and at that stage it cannot accept denial of anointment by defendant. After reaching such conclusion, by erroneous reference to decision in Mahalinga Thambiran Swamigal v. Arulnandi Thambiran Swamigal, reported in (1974) 1 SCC 150, trial Court held trial was necessary about reason for removal.
7. According to it difference of opinion arose when plaintiff questioned defendant about financial transaction in relation to Ayurvedic Medical College, Gadag, and defendant began making allegations about dereliction of duties, misbehavior etc. leading to passing of resolution dated 11.11.2022. It held, whether exercise of power by defendant was for good cause would require full-fledged trial.
8. It was submitted, trial Court once again misled itself by referring to decision in S.C.Gangadharaiah Vs REMCO (BHEL), House Building Cooperative Society, Bengaluru and Others reported in 2018 (4) KCCR 3269, that for grant of temporary injunction, plaintiff was required not -6- NC: 2024:KHC-D:6718 WP No. 107781 of 2023 only to establish prima-facie case, but also existence of serious issue for trial. It held defendant claimed to have executed cancellation deed, plaintiff ought to have sought declaration of his status and without such prayer, suit was maintainable. It observed, though cancellation of plaintiff's status as Peethadhikari of Math was under cloud and there was serious issue for trial, due to question of maintainability of suit, there was failure to establish prima facie case.
9. It was submitted, based on such untenable reasoning, trial Court answered point no.1 regarding prima facie case in negative and consequently answered other points also likewise and denied temporary injunction.
10. In appeal, first appellate Court after noting rival contention and findings of trial Court, in fact it observed whether plaintiff had misbehaved with devotees and was not performing his duty would be a matter for trial and if temporary injunction as sought for were granted, it would permit plaintiff to obstruct defendant and on said reasoning held that plaintiff failed to establish prima facie case and proceeded to confirm order passed by trial Court.
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11. Learned Senior Counsel submitted that both Courts had concurrently observed that there was no dispute about plaintiff being appointed as Uttaradhikari by defendant on 25.07.2018. They observed defendant did not dispute about holding of function on 22.02.2020 and cancelation of appointment on 25.11.2022 as claimed by defendant was unilateral. It was submitted, only reason assigned by trial Court for denying temporary injunction was issue regarding maintainability of suit, since plaintiff had not sought for declaration of his status, reason assigned by first appellate Court was grant of temporary injunction would amount to granting final relief, neither of which were tenable and suffered from palpable error.
12. It was submitted, plaintiff had filed I.A.no.IV for amendment of plaint on 29.03.2023 seeking relief of declaration about his status as Mahant Peethadhikari of Math. Said application was allowed on 25.01.2024 and as per law, amendment would relate back to date of suit. Therefore, main reason assigned by trial Court for refusing temporary injunction would not subsist, as it had already observed about existence of prima facie/triable case in favour of plaintiff. -8-
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13. Insofar as first appellate Court, it was submitted, bare perusal of newspaper clippings at Annexure-J would substantiate prima facie that there was appointment of plaintiff as Peethadhikari as per religious customs by defendant in presence of Swamijis of other Maths, devotees etc., and deed of cancelation at Annexure-M would indicate that it was executed unilaterally and without assigning any reasons. It was submitted, even resolution produced by defendant as Annexure-R1 did not indicate any serious allegation against plaintiff, except demand to be put in complete charge of affairs of Math and vague allegation of misuse of funds of Math. It was therefore contended, there were no serious allegations or material against plaintiff to justify any action as claimed by defendant and alleged cancellation or withdrawal of status would be illegal, by relying upon ratio in Mahalinga Thambiran Swamigal's case (supra). On above grounds, sought for allowing writ petition.
14. On other hand, Sri Jayakumar S. Patil, learned Senior Counsel appearing for Sri Shivaraj C. Bellakki, advocate for defendant, opposed writ petition. At outset, it was submitted, there was no dispute about defendant appointing -9- NC: 2024:KHC-D:6718 WP No. 107781 of 2023 plaintiff as Uttaradhikari on 25.07.2018 under registered deed. Though holding of event on 22.02.2020 was not denied, its nature and purpose was neither for appointing plaintiff as Peethadhikari nor such appointment was made by defendant. It was submitted, none of material produced by plaintiff before trial Court including newspaper reports (Annexure-J) stated about plaintiff's appointment as Peethadhikari. It was consistently maintained by defendant that said function was to commemorate and announce to general public and devotees that plaintiff was appointed as Uttaradhikari. Therefore plaintiff's claim was disputed and as held by both Courts required trial. Further, mere presence of defendant in function on 22.02.2020 would not establish plaintiff's claim.
15. It was submitted, though reasons for removal were not made part of deed of cancellation dated 28.11.2022, it did not ipso facto mean that there were no reasons existing. It was submitted, several reasons were enumerated in resolution passed on 11.11.2022, including misuse of funds of Math, instigating college students in Math against defendant, misbehaving with devotees and insisting for appointment as Peethadhikari and transfer of powers from defendant etc.
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16. Under such circumstances, trial Court and first appellate Court justifiably arrived at conclusion that matter required trial and it was not fit case to grant temporary injunction. Relying on decision of this Court in Sri Gowrishankara Swamigalu v. Sri Siddhaganga Mutt reported in ILR 1989 KAR 1701, it was submitted for granting temporary injunction not only prima facie case, balance of convenience and irreparable loss or injury to plaintiff, but also whether there were any overriding considerations for refusing injunction, also required to be considered.
17. Insofar as prima facie case, consideration was whether cancellation of anointment of plaintiff as junior pontiff was for good cause or justification. It was submitted Court had weighed possibility of chaos in Math if temporary injunction were granted especially when there was rival claim to power over affairs of Math. Hence, refusal with view to avoid conflict or chaos in Math would be justified.
18. Learned Senior Counsel relied upon decision in Lakshminarasimhiah and Others v. Yalakki Gowda reported in ILR 1965 Mys 40; Mohd. Mehtab Khan and
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 others v. Khushnuma Ibrahim Khan and others reported in (2013) 9 SCC 221; Uttar Pradeh Co-operative Federation Ltd. v. Sunder Brothers of Delhi reported in AIR 1967 SC 249; Wander Ltd. And another v. Antox India P.Ltd. reported in 1990 (Supp) SCC 727, to highlight scope for interference by High Court against discretionary orders passed on applications filed under Order XXXIX Rule 1 and 2 of C.P.C. It was submitted, in present case, both Courts had concurrently held plaintiff was not entitled for temporary injunction. Hence, there was no scope for interference.
19. Heard learned counsel and perused writ petition record.
20. From above, it is seen plaintiff is challenging concurrent orders refusing temporary injunction. In Anathula Sudhakar v. P. Buchi Reddy reported in 2008 (4) SCC 594, it was held that order of temporary injunction can be granted only after recording of satisfaction by trial Court about existence of prima facie case, balance of convenience and irreparable loss and injury to plaintiff, if injunction is refused.
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21. While scope for interference with discretionary orders passed is clarified by Hon'ble Supreme Court in Mohd. Mehtab Khan (supra) as impermissible unless exercise of discretion by trial Court was palpably erroneous or untenable and even if view taken by trial Court was one of possible views, there could be no interference. Same view is expressed in other decisions relied upon by respondent.
22. As stated above, as per plaintiff, reasons assigned by trial Court and first appellate Court were untenable and contrary to law calling for interference, defendant contend scope for interference with concurrent orders denying temporary injunction did not call for interference.
23. Indeed, trial Court had arrived at conclusion that material on record establish prima facie/triable case but without prayer for declaration of status, there would be issue about maintainability of suit.
24. Its observation that for grant of temporary injunction not only prima facie but serious case for trial was required, would be in consonance with S.C.Gangadharaiah's case (supra) as well as that of Hon'ble Supreme Court in
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd., reported in (2006) 1 SCC 540, wherein it is held:
"36. The respondent, therefore, has raised triable issues. What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co. v. Ethicon Ltd. [(1975) 1 All ER 504 : 1975 AC 396 : (1975) 2 WLR 316 (HL)] holding: (All ER p. 510c-d) "Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as 'a probability', 'a prima facie case', or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried."
..."
25. Insofar as other reason, admittedly, I.A.no.IV for amendment of plaint seeking relief of declaration was allowed on 29.03.2023. Therefore, as per ratio in Siddalingamma v. Mamtha Shenoy, reported in (2001) 8 SCC 561, normally amendment relates back to date of plaint, therefore reason assigned by trial Court to deny temporary injunction would not subsist. Hence, cloud on maintainability of suit stood cleared.
26. But, denial of temporary injunction by first appellate Court is on different reason. It held grant of temporary
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 injunction would amount to granting final relief. It is settled law, normally it would not be permissible to grant main relief as interim relief.
27. It would be useful to refer to decision of this Court in MFA no.6699/2022 disposed of on 16.01.2023, wherein it is held there would be no prohibition in seeking temporary injunction for maintaining status quo regarding status, but where removal was on vague allegations without material particulars about date, time and place or nature, specific description of alleged act and mode and manner in which it was done, else it would be illegal, by referring to decision in Bheemasenacharya Srinivasacharya Gudi v. Gadag Veeranarayana Dev, reported in 2001 SCC OnLine Kar 321 and M/s Mother Therasa Education Society ® V/s Muniyappa and others reported in (2017) 5 KCCR 994. Above principle finds justification from ratio in State of Orissa v. Madan Gopal Rungta, reported 1951 SCC 1024.
28. Hence, reason for refusing temporary injunction by trial Court as well as first appellate Court would be untenable.
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29. On perusal, it is seen that there is assertion in plaint about appointment of plaintiff as Uttaradhikari on 25.07.2018 which is admitted, holding of function on 22.02.2020 and attendance of defendant in said function in tandem with newspaper reports that function organized was for appointing plaintiff as 'Pattadhikari', would prima facie establish plaintiff's case. On other hand, defendant denies plaintiff's appointment as Peethadhikari and claims cancellation of appointment as Uttaradhikari was for good reasons enumerated in resolution passed on 11.11.2022 at Annexure-R1. But perusal of same would indicate that allegations are without material particulars and thereby falling foul of ratio in Bheemasenacharya's case (supra). And weighing total denial as against material produced by plaintiff would not be justified.
30. From above, indisputable conclusion that could be arrived at this stage would be that plaintiff established prima- facie and triable case. In Lanco Kondapalli Power (P) Ltd.'s case (supra), Hon'ble Supreme Court made useful reference to decision in American Cyanamid Co. v. Ethicon Ltd. reported in (1975) 1 All ER 504 as follows:
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 "Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial"
31. At same time, in Sri Gowrishankara Swamigalu's case (supra), this Court expressed its concern in no less unequivocal words as follows:
"From the galore of documents and pleadings that have been produced in the case, there is clear indication and it is also not denied that the relations between the Senior Pontiff and the Junior Pontiff has been greatly strained and badly soured.....there is in fact a galore of documents indicating the plaintiff had of late been exhibiting a panache for supplanting the Senior and holding himself out as the Mathadhyaksha....Even the slightest prospect of an anarchical situation prevailing in the Mutt following the arming of the plaintiff with an injunction by Court should be sufficient reason to preclude its grant. There is also a clear possibility of the people at large becoming the victims of the power-play between the plaintiff and defendants. In such circumstances, prudence commend refusal of the injunction as a prudent course and discretion is better exercised by refusing the injunction sought for....expending of judicial authority for granting an injunction to the plaintiff just to enable him to make sporadic visits to the Mutt premises from his place of residence elsewhere therefore appears to be only a meaningless charade which does not really serve any useful purpose. He does not suffer any inconvenience by not visiting the Mutt nor does he stand to gain anything by his occasional visits under heavy escort. Therefore, the
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 exercise of discretion in favour of the plaintiff would be clearly phyrric unattended by any tangible rewards either to the plaintiff or to anyone else. On the contrary these visits if done under the cover of the injunction might bring in some untoward results so far as the defendants are concerned and can well be avoided by declining to grant the injunction as the plaintiff himself benefits very little. Therefore, it is after analysing the case of the plaintiff vis- a-vis the legal requirements enjoined for consideration by a Court, it becomes clear that plaintiff satisfies none of them."
32. As noted above, reasons stated for denying order of temporary injunction involved considerations of conduct of plaintiff after grant of order of ex-parte ad-interim injunction and fact that plaintiff was not residing inside Math premises. In instant case, it is not seriously disputed that plaintiff was occupying portion of premises in Math and participated, if not supervised/overlooked certain affairs of Math. And there is no pleading or contention urged about any conduct of plaintiff for taking law into own hands and disturb authority of defendant or affairs of Math being carried out.
Under above circumstances, Writ Petition is allowed in part, impugned order dated 15.02.2023 passed by Additional Senior Civil Judge, Gadag, in M.A.no.2/2023 and order dated 19.01.2023 passed by Principal Civil Judge and JMFC, Gadag in O.S.no.4/2023 on I.A.no.2 are quashed.
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NC: 2024:KHC-D:6718 WP No. 107781 of 2023 I.A.no.2 filed by petitioner-plaintiff under Order XXXIX Rule 1 and 2 of CPC stands allowed in part only to extent of permitting plaintiff to continue as 'Uttaradhikari' of Math and claim of plaintiff about his anointment as Mahant- Peethadhikari of Math as well as its denial and claim of defendant of having cancelled appointment of plaintiff as 'Uttaradhikari' subject to final outcome of suit.
It is clarified that relief on I.A.no.2 is limited to claim of status as 'Uttaradhikari' nominally, occupy room in Math as earlier and participate in religious activities/affairs of Math as a devotee only and refrain from doing any act whatsoever that would disturb management of affairs of Math peacefully etc. Both parties shall maintain status quo as above until disposal of suit.
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JUDGE CLK List No.: 1 Sl No.: 56