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 4 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 5 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. 6
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 7 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?8
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 9 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 10 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 11 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.
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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?13
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 14 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 15 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 16 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. 17
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 18 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 19 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 20 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 21 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, 22 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 23 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:
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"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. 25
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.
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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 27 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:
28
"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 29 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 30 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. 31 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 32 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 33 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-34
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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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.
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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 46 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. 47
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 48 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; 49
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