WRIT PETITION NO OF 2012 (GM-CPC)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 TH DAY OF DECEMBER 2012 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION NO OF 2012 (GM-CPC) BETWEEN: Sri Seebi Narasimhaswamy Temple, Seebi Kshetra, Sy.No.10, Chikka Seebi Village, Bellavi Hobli, Tumkur Taluk, Represented by its Hereditary Dharmakartha, Sri Karanika Nallappa, Aged about 81 years.... Petitioner (By Sri A.Madhusudhana Rao, Advocate) AND: 1. Sri C.Narasimha Murthy, Father name not known, Aged about 78 years, Retired Sanitary/Health Inspector, R/at Prabhavana Hally, Kasaba Hobli, Gubbi Taluk. 2. Sri Ranganathappa, S/o late Seebi Narasimhaiah, Aged about 60 years, Nagena Hally, Kallambella Hobli, Sira Taluk. 3. Sri Gundu Rao, S/o late Seebaiah,

2 2 Aged about 75 years, R/at Kuri Hally, C.N.Durga Hobli, Koratagere Taluk. 4. Sri S.R.Narasimha Murthy, S/o late Rangappa, Aged about 80 years, R/at Shambhona Hally, Kora Hobli, Tumkur Taluk.... Respondents (By Sri S.Nagaraja, Advocate for C/R1 and R2) This writ petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned order passed by the learned III Addl. Civil Judge dated on IA u/s 151 of CPC R/W 94E in OS No.579/10 vide Annexure H and etc. This writ petition, coming on for further dictation, this day, the Court made the following: ORDER The petitioner has raised the challenge to the order, dated (Annexure-H) passed by the Court of the III Addl. Civil Judge, Tumkur in O.S.No.579/2010. By the said order, the Trial Court has allowed the I.A. filed by the defendant Nos. 1 and 2 (the respondent Nos. 1 and 2 herein) seeking direction to the petitioner plaintiff to hand over the charge of performing the poojas as archaks in the schedule temple to them (defendant Nos. 1 and 2).

3 3 2. Sri A.Madhusudhan Rao, the learned counsel for the petitioner submits that the interim order is not ancillary to the main relief sought. He submits that as the defendants are not entitled to any main relief, interim relief ought not to have been given. He submits that the contracts of personal services are made unenforceable under Section 14 of the Specific Relief Act, The only relief grantable to the person who complains of the breach of the agreement is the payment of damage. In the instant case, the defendants have neither sought the enforcement of the agreement nor they have made the claim for the payment of damages. 3. Sri Madhusudan Rao relies on the decision of the Apex Court in the case of NANDGANJ SIHORI SUGAR CO. LTD., RAE BARELI AND ANOTHER vs. BADRI NATH DIXIT AND OTHERS reported in AIR 1991 SC 1525 for advancing the contention that unless the law specifically provides for granting the relief of reinstatement, etc., a contract of employment can not be enforced. He also relies on the Apex Court s judgment in the case of M/S.PEARLITE LINERS PVT. LTD. Vs. MANORAMA SIRSI reported in AIR 2004 SC 1373,

4 4 wherein it is held that the enforcement of contract of personal service is barred under law. 4. To advance the contention that the inherent power under Section 151 of CPC cannot be exercised to nullify the statutory provision, he relies on the Apex Court s judgment in the case of COTTON CORPORATION OF INDIA LIMITED vs. UNITED INDUSTRIAL BANK LIMITED AND OTHERS reported in AIR 1983 SC He also relies upon the Apex Court s judgment in the case of NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES vs. C.PARAMESHWARA reported in AIR 2005 SC 242, wherein it is held that the inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of CPC; but that jurisdiction cannot be exercised so as to nullify the provisions of the C.P.C. 5. He also sought to draw support from this Court s decision in the case of K.CHINNAPPA vs. C.SRINIVAS REDDY reported in 1996 (1) KLJ 114 to advance the contention that the relief is to be granted or refused only to the plaintiff; it is not to be granted to the defendant. In the

5 5 said case, the Trial Court s order directing the plaintiff to remove the existing fencing on his land to enable the defendant s right of way was held to be illegal, as the suit was filed for permanent injunction for restraining the defendants from committing the trespass on the plaintiff s land. 6. The learned counsel also brings to my notice the Apex Court s judgment in the case of VINOD SETH vs. DEVINDER BAJAJ AND ANOTHER reported in 2010 (8) SCC 1, wherein it is held that Section 151 of CPC is intended to apply where CPC does not cover any particular procedural aspect and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It cannot be invoked with reference to a matter which is covered by a specific provision in the CPC. It cannot be exercised in conflict with the general scheme and intent of CPC. It cannot be used either to create or recognise rights, or to create liabilities and obligations not contemplated by any law.

6 6 7. Sri Madhusudhana Rao submits that the Trial Court s order suffers from factual errors too. He submits that the first defendant does not even meet the eligibility criteria prescribed for the archakship. Section 10 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 ( 1997 Act for short), the minimum qualification is a pass in the Certificate Course (Pravara) in the Agama in the tradition of the temple. The first defendant is a retired government employee; he has no prescribed qualifications; he has never acquired any experience as a poojary or archak, at the most he was only a paricharak, who assists the archak in the performance of the poojas. 8. The learned counsel submits that the Trial Court has proceeded to pass the order in question with an erroneous understanding that the order, dated refusing to grant the temporary injunction to the petitioner/plaintiff has attained the finality. As a matter of fact, the petitioner has already filed M.A.No.1/2011 against the said order. He further submits that the said appeal is pending consideration before the Court of the learned Civil Judge (Sr.Dn.), Tumkur.

7 7 Sri Rao submits that though the order is passed only in favour of the respondent No.1, the other respondents are trying to take undue advantage of the order. 9. Sri S.Nagaraja, the learned counsel for the respondent Nos.1 and 2 submits that the defendants are the hereditary archaks. He submits that nowhere in the plaint, any foundation is laid in the pleadings for denying the competence of the defendants to perform the poojas; that the defendants did not have the qualifications is not taken in the plaint. He submits that the respondents pleadings in the written statement that they are the hereditary archaks is not denied by the petitioner by filing any rejoinder. 10. Sri Nagaraja submits that the dispute amongst the respondents as to who amongst them should perform the pooja is resolved by the agreeing to perform the poojas on rotation basis. The agreement is signed by all of them in the presence of the petitioner. 11. Sri Nagaraja submits that no relief whatsoever is sought on the basis of the agreement amongst the defendants. As the defendants have not breached the

8 8 agreement, the question of their seeking the damages would not arise at all. He further submits that as the defendants are not the employees of the plaintiff and as there is no privity of contract between the plaintiff and the defendants, the question of the defendants seeking the damages would not arise at all. The question of seeking the relief under the Specific Relief Act also has not arisen. 12. The learned counsel submits that the defendants are the hereditary archaks and that there is no dispute between the Dharmakarta and the archaks. 13. The learned counsel submits that the plaintiff is guilty of the suppression of material facts. Though the agreement amongst the defendants is signed in the presence of the plaintiff, the plaintiff has not whispered anything about that in the plaint. He also submits that subsequent to the filing of O.S.No.579/2010, the petitioner has also filed O.S.No.10/2011 seeking the relief of declaration and injunction against the Government. As the Government did not take part in the suit, the petitioner has obtained an exparte judgment and decree. He submits that the Government

9 9 has filed the appeal. He submits that the filing of O.S.No.579/2010 is not disclosed in O.S.No.10/2011 by the petitioners. 14. He submits that whether Sri Seebi Narasimhaswamy Temple is a notified institution or not itself is the subject-matter of enquiry. Whether or not it is notified institution and whether or not it can be brought within the ambit of the 1997 Act, the qualifications prescribed under Section 10 of the 1997 Act have no application for the facts of this case for two reasons: (a) The defendants are the hereditary archaks. (b) when the person has the experience of working as archak in the tradition of temple for three years, the insistence for a pass in the Certificate Course (Pravara) in Agama need not be insisted for. He read out Section 9(1) and 10 of the 1997 Act, the provisions of which are extracted hereinbelow: 9. Appointment of Archakas [and temple servants]. (1) The Committee of Management of a notified institution may with the approval of the Commissioner appoint one or more Archakas [and temple servants] to each temple belonging to the institution:

10 10 Provided that in case of hereditary post, if there is no dispute among the members of the family, the next in line of succession shall be appointed; with the prior approval of the commissioner: Provided further that in case where no legal heir of the hereditary post are available the Committee of Management may appoint any person as provided under sub-section (1).] 10. Qualifications for Archakas.-(1) No person shall be appointed to be a Archaka unless he has passed atleast a certificate course [(pravara)] in the Agama in the tradition of the temple, from any recognized Samskruta Patashala or any other institution as the State Government may by notification in the Official Gazette specify, or has performed as archaka in the tradition of the temple for at least three years. (2) Archaka other than hereditary Archaks who are in service on the date of the commencement of the Karnataka Hindu Religious Institution and Charitable Endowments (Amendment) Act, 2011 may be continued as Archaka who shall acquire the prescribed qualification within the period of five years unless he has crossed forty-five years of age. (3) An Agamika or Tanthri wherever appointed to perform poojas in a temple on special occasions shall continue to perform such functions as the Committee of

11 11 Management may specify and shall be governed by such conditions of service as may be prescribed; Provided that no person shall after the commencement of this Act be appointed to perform as an Agamika or Tanthri unless he has passed the Pravina course in the Agama, from any Samskruta Patashala or other institutions imparting education in the tradition. 15. He submits that, that the defendants are the hereditary archaks is not in dispute at all. The Tahsildar in his report, dated submitted to the Deputy Commissioner has vividly stated that the performance of pooja has traditionally been by the three branches of the family and that the defendants belong to the second branch. 16. The learned counsel strenuously brings to my notice the circumstances leading to the filing of I.A.No.1/2012 seeking the direction to the plaintiff to hand over the charge to the defendant Nos. 1 and 2 to perform the poojas as archaks of the suit schedule temple. He submits that the petitioner s I.A. filed invoking Order 39 Rule 1 and 2 of CPC was disposed of with the leave to the fourth respondent to

12 12 perform the responsibility with respect to the suit schedule properties as agreed upon till The other defendants were directed not to interfere with the performance of the poojas by the fourth defendant. The I.A. for direction had to be filed on the expiry of the period for the performance of the poojas assigned to the fourth respondent. 17. The learned counsel submits that even under Order 39 Rule 1(a) of CPC, it is open to the defendants to seek the relief of temporary injunction. Only in the cases falling under Order 39 Rule 1(b) and (c) of CPC, the defendant is precluded from seeking the relief of temporary injunction. 18. He also submits that the defendant Nos. 1 and 2 have invoked not only Section 151 of CPC but also Section 94(e) of CPC. Section 94(e) confers the power on the Court to make such interlocutory orders as are necessary to prevent the ends of justice from being defeated. 19. The learned counsel has also relied on this Court s decision in the case of VEERABHADRAPPA vs. MAYAPPA reported in ILR 1993 Kar.161 for advancing the submission

13 13 that the Court has the inherent power under Section 151 of CPC to grant injunction in cases not covered by Order 39 of CPC. 20. He has also relied on the Apex Court s judgment in the case of INDIA HOUSEHOLD AND HEALTHCARE LTD. Vs. LG HOUSEHOLD AND HEALTHCARE LTD. reported in (2007) 5 SCC 510, wherein it is held that the Courts have the jurisdiction to pass the order of injunction not only under Order 39 Rule 2 of the CPC but also under Section 151 thereof. 21. In the course of rejoinder, Sri A.Madhusudhan Rao, the learned counsel for the petitioner submits that the judgment and decree in O.S.No.10/2011 is not an exparte decree, as the defendant Government in the said suit was represented by the Government Advocate. He submits that the Government was afforded with umpteen number of opportunities to file its written statement. Just because the Government has defaulted in filing the written statement, the judgment and decree cannot be termed as exparte. The Tahsildar s report, dated was in a different context

14 14 and that therefore no reliance can be placed thereon. He submits that no foundation is laid for claiming that the defendants are the hereditary archaks. Just because the defendants make one such averment and just because the plaintiff does not file the rejoinder, it does not amount to the implied admission of the defendants claims. In this regard, he relies on the Division Bench s judgment of this Court in the case of B.R.RANGASWAMY v. D.SYED YOUNOUS AND OTHERS reported in ILR 1999 KAR 2539, wherein it is held that the non-filing of the rejoinder by the plaintiff to the claim made by the defendant in the written statement does not amount to admission. The learned counsel submits that he has no quarrel with the proposition that the temporary injunction can be granted in exercise of the inherent power conferred by Section 151 of the CPC but only in cases where the defendants have made the counter-claim and where the temporary injunction sought is ancillary to the main relief. 22. For advancing the contention that the archak is an office-holder or a servant of the Temple, he relies on the Apex Court s judgment in the case of A.S.NARAYANA

15 15 DEEKSHITULU v. STATE OF ANDHRA PRADESH AND OTHERS reported in AIR 1996 SC The relevant paragraphs of the said judgment are extracted hereinbelow: 120. There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest (archaka) is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (archaka). The hereditary right as such is not integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad conduct, its abolition by sovereign legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession to the office of an

16 16 archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is an holder of the office of priest (archaka) in the temple. So are the other officeholders employees of the temple. In Seshammal s case, (AIR 1972 Supreme Court 1586), this Court had upheld the legislative competent to take away the hereditary right as such The real question, therefore, is: whether appointment of an archaka is governed by the usage and whether hereditary succession is a religious usage? If it is religious usage, it would fall squarely under Article 25(1)(b) of the Constitution. That question was posed in Seshamal s case wherein this Court considered and held that though archaka is an accomplished person, well-versed in the Agamas and rituals necessary to be performed in a temple, he does not have the status of a head of the temple. He owes his appointment to Dharmakarta or Shebait. He is a servant of the temple. In K.Seshadri Aiyangar v. Ranga Bhattar (1912) ILR 35 Mad. 631, the Madras High Court had held that status of hereditary archaka of a temple is that of a servant, subject to the disciplinary power of the trustee who would enquire into his conduct as servant and would be entitled to take disciplinary action against him for misconduct. As a servant, archaka is subject to the discipline and control of the trustee. The ratio therein was applied and upheld by

17 17 this Court and it was held that under Section 56 of the Madras Act archaka is the holder of an office attached to a religious institution and he receives emoluments and perks according to the procedure therein. This Court had further held that the act of his appointment is essentially a secular act. He owes his appointment to a secular authority. Any lay founder of a temple may appoint an archaka. The Shebait or Manager of temple exercises essentially a secular function in choosing and appointing the archaka. Continuance of an archaka by succession to the office from generation to generation does not make any difference to the principle of appointment. No such hereditary archaka can claim any right to the office. Though after appointment the archaka performs worship, it is no ground to hold that the appointment is either religious practice or a matter of religion. It would thus be clear that though archaka is normally a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee or an appropriate authority prescribed in the regulations or rules or the Act. He owes his existence to an order of appointment be it in writing or otherwise. He is subject to the discipline at par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agamas Sastras, it is no ground to hold that his appointment is either a religious practice or

18 18 a matter of religion. It is not an essential part of religion or matter of religions or religious practice. Therefore abolition of the hereditary right to appointment under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution. 23. The submissions of the learned counsel have received my thoughtful consideration. 24. The fued over who should perform the pooja only indicates that the management/trustees/dharmadhikarees/ archaks/paricharaks are fighting for their own interest. The devotees come to the temple not because of their liking for any archak or dharmadhikari; they come to the temple to offer their prayers to the deity, the managers/trustees/ dharmadhikarees/poojaris behave as if they are the human limbs through which the deity acts. The mundane pursuits have resulted in the settings where there are rituals minus or without the spiritual content. 25. Be it as it may, the sustainability of the impugned order is required to be examined. The order is passed on the application of the defendant Nos.1 and 2 invoking Section

19 read with Section 94(e) of the CPC. Section 94(e) of CPC states that in order to prevent the ends of justice from being defeated, the Court may make such interlocutory orders as may appear to it to be just and convenient. To achieve the ends of justice, the Court is not powerless to make the interim directions and issue appropriate precepts. The Apex Court in the case of India Household and Healthcare Ltd. (supra), while examining the case under Arbitration and Conciliation Act, 1996 has observed that the courts have the jurisdiction to pass the order of injunction not only under Order 39 Rule 2 of CPC but also under Section 151 thereof. 26. This Court in the case of Veerabhadrappa (supra) has expressed the considered view that the Courts have the inherent power under Section 151 of CPC to grant injunction in favour of any party and at the instance of any party, irrespective of the status, that is, whether he is plaintiff or defendant. 27. Order 39 of CPC should not be considered as placing any limit on the scope of the inherent powers under Section 151 of the CPC, as held by the Full Bench of Madras

20 20 High Court in the case of CENTURY FLOUR MILLS LTD. v. S.SUPPIAH AND OTHERS reported in AIR 1975 MADRAS In the instant case, the Trial Court has allowed the I.A. filed by the defendant Nos.1 and 2 for a direction to the petitioner plaintiff to hand over the charge to them to perform pooja as archaks to the suit Temple. The need to file such an application itself was necessitated on account of the expiry of the period for the performance of the poojas by the fourth defendant. The fourth defendant was permitted to perform the poojas by virtue of the Trial Court s order, dated (Annexure-C) based on the plaintiff s I.A. filed under Order 39 Rule 1 and 2 of CPC. The order presently impugned is virtually in the nature of the continuation of the first order. The first order, dated is no doubt challenged by the plaintiff in M.A.No.1/2012 before the Court of the Civil Judge (Sr.Dn.), Tumkur. The said Appellate Court is not persuaded to stay the operation of the first order. The plaintiff has not approached the higher forum ventilating his grievance over the not granting of stay by the Appellate Court.

21 Whether the defendants have the requisite qualifications, experience, etc. are to be decided on holding the trial. The plaintiff has not laid the foundation in the pleadings for his case that the defendants do not have the competence to perform the poojas. The pleading of the defendants that they are the hereditary archaks has remained uncontroverted as of now. 30. The agreement, dated for the performance of poojas at suit Temple by the three branches of family is signed by the petitioner-plaintiff. He may not be a party to that agreement, but he has signed it as a witness. In fact, the preamble portion of the said agreement states that the agreement is signed in his presence ( ÀªÀÄPÀëªÀÄ). The signing of the agreement is not denied by the petitioner-plaintiff by filing any rejoinder. Not only that, even in the memorandum of this writ petition, the petitioner-plaintiff has not taken the stand that he has not signed the agreement. 31. The petitioner-plaintiff s reliance on the Division Bench s judgment in the case of B.R.Rangaswamy (supra) would not come to the rescue of the petitioner in any way.

22 22 The said judgment was rendered in the appeal wherein the judgment and decree of the Trial Court was challenged. It has held that mere non-filing of the rejoinder would not mean that the plaintiff is deemed to have admitted the prior agreement pleaded by the defendants. It was held that the Trial Court ought to have first considered as to whether the defendants have proved the agreement. In the instant case, such a stage has not yet come. The defendants are required to establish the existence of the agreement, dated The defendants, while not disputing that the plaintiff is the Dharmadikari, have denied the master employee relationship. Therefore, the contentions urged on behalf of the plaintiff that the defendants have to file the suit for damages, etc. are sans merit. 33. As held by the Apex Court, at the stage of granting the temporary injunction, a mini trial is not required to be held. In taking this view, I am fortified by its judgment in the case of ANAND PRASAD AGARWALLA v. TARKESHWAR PRASAD AND OTHERS reported in AIR 2001 SC 2367.

23 The agreement, dated is a question of fact and a prima facie view taken by the Court below in relation thereto need not be interfered with. 35. The Trial Court has given its anxious consideration to the balance of convenience. It has passed the order in question keeping in view the interests of the devotees of the suit Temple. I do not see any good reason for making any interim arrangement deviating from the agreement, dated in the pre-trial period. 36. It is also profitable to refer to the Apex Court s judgment in the case of SKYLINE EDUCATION INSTITUTE (INDIA) PRIVATE LIMITED v. S.L.VASWANI AND ANOTHER reported in (2010) 2 SCC 142, wherein it is held that once the court of first instance exercises its discretion to grant or refuse to grant the relief of temporary injunction and the said exercise of discretion is based upon the objective consideration of the material placed before the court and is supported by cogent reasons, the Appellate Court will be loathe to interfere simply because on a de nova consideration of the matter, it is possible for the Appellate Court to form a

24 24 different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. 37. No good grounds are made out for interfering with the Trial Court s order. This petition is dismissed. 38. However, the Trial Court is directed to dispose of the main matter (O.S.No.579/2010) independently of and without being influenced by the reasons given hereinabove. The reasons given and the observations made hereinabove are only for the purpose of disposing of this writ petition. Further, the Trial Court is also directed to expedite the trial. No order as to costs. Sd/- JUDGE Cm/MD