Ram Saran v. District Judge — 1993 DIGILAW 269 (ALL)

JUDGMENT : M.L. BHAT, J. 1. In a civil suit field by the Petitioners against the Respondent No. 3 for declaration to the effect that the Respondent No. 3 had no right to manage the affairs of the temple property and for permanent injunction restraining the Respondent No. 3 from interfering in the management of the temple property, en ad-interim in junction teems to have been granted in favour of the Petitioners under Order 39 Rule 1 Code of Civil Procedure. On appeal filed by the Respondent No. 3 the said order was vacated and the appeal of the Respondent No. 3 was allowed. This writ petition seeks to quash the appellate order passed by the Respondent No. 1 on 24.10.1989. 2. It is necessary to give a brief resume of facts which emerge from tie record. 3. The Petitioner No. 2 is a temple. Some landed property is said to have been gifted to the Petitioner No. 2 by one Mathura Prasad and his wife on 13.9.1938. One Janki Bai, who was herself the manager of the temple property, is said to have appointed Petitioner No. 1 as the manager of the temple, However, this appointment was cancelled on 12.6.1978 when she appointed Respondent No. 3 as the Manager of the temple, A civil suit is said to have been filed by the said Smt. Janki Bai and the Respondent No. 3 against the Petitioner No. 1 on 5.8.1978 That suit was compromised and a compromise decree on the basis of agreement of the parties was passed on 9.7.1979. The Respondent No. 3 was appointed manager to the extent of 38.40 acres of land of the temple. The Petitioner No. 1 was to remain in possession of 18.58 acres of land of the temple for ten years thereafter it was to be managed by the Respondent No. 3 on behalf of deity. The suit was filed by the Petitioners in respect of 38.40 acres of land which was the subject matter of the compromise decree. It is stated that on 12.6.1981 the said Smt. Janki Bai had executed two deeds. By one deed she removed the Respondent No. 3 as the manager and by another deed she appointed one Kishori Saran as Manager of the deity to manage the said property. It is stated that on 12.6.1981 the said Smt. Janki Bai had executed two deeds. By one deed she removed the Respondent No. 3 as the manager and by another deed she appointed one Kishori Saran as Manager of the deity to manage the said property. However, said Kishori Saran is not a party to the suit and he does not appear to have managed the property at any time. Smt. Janki Bai thereafter is said to have filed another suit but the said cult had abated with the death of Smt. Janki Bai in 1983. The said suit Smt Janki Bai had attempted to seek an injunction against the Respondent No. 3 but the same was refused by Civil Court and she is said to have filed writ petition in this Court, which was also dismissed in limine 4. The Petitioner No. 1 claiming himself to be the manager of the Petitioner No. 2 filed the present suit on 24.4.1989 in which the Munsif had granted temporary injunction on 31.5.1989, which was vacated in appeal on 24.10.1989. 5. In between some criminal proceedings were taken in respect of the property in question u/s 145 Code of Criminal Procedure and the land was attached and handed over to the Superdar. The said proceedings were quashed by the Sessions Judge in revision and the land was released from attachment. This order of Sessions Judge, had become final. 6. In the counter affidavit filed by the Respondent No. 3 it is stated that the Petitioner No. 1 had no right to file the suit AS he had nothing to do with the deity or with the property in question The Respondent No 3 has denied the contents of the writ petition and has given the history of litigation, which was brought from time to time before different courts in respect of the property of the deity. 7. The Petitioner has filed rejoinder affidavit also wherein the Petitioner claims that he besides being the manager of the deity or Sanrakshak of the deity. He has relied on the deed of agreement, which was originally executed in his favour by Smt. Janki Bai. It was urged on behalf of the Petitioner No. 1 that he being a Shebait of the temple also has a right to manage the property of the temple. He has relied on the deed of agreement, which was originally executed in his favour by Smt. Janki Bai. It was urged on behalf of the Petitioner No. 1 that he being a Shebait of the temple also has a right to manage the property of the temple. This fact is neither urged in the suit filed by the Petitioner No. 1 on behalf of himself and on behalf of Petitioner No. 2 nor is this plea mentioned in the writ petition. Therefore, it is not possible for this Court to accept this contention at this stage. This aspect of the case was neither considered by the Munsif nor by the District Judge in appeal. Therefore, this is a new fact, which cannot be permitted to be raised in the writ petition for the first time. 8. The learned Counsel for the Petitioner has raised two contentions before me. In this first place he submitted that the Respondent No. 1 has refused to look into the registered deed dated 12.6.1981 while considering the prima-facie case of the Petitioners. It is stated that he was obliged to consider the effect of the deed dated 12.6.1981. Since he has not done so therefore his finding is vitiated. In the second place it was urged by the learned Counsel for the Petitioner that the Petitioner was appointed as Sanrakshak, which according to him, would mean Shebait. If he was removed as Manager his status as Sanrakshak is to remain undisturbed and as Sanrakshak he has acquired personal interest for the upkeep of the deity's interest. The appellate court in its judgment has not expressed any opinion on the deed of 12.6.1981. In my opinion the Respondent No. 1 was right in not expressing any opinion on the deed of 12.6.1981. The deed of 12.6.1981 by which Smt. Janki Bai is said to have removed the Respondent No. 3 and appointed one Kishori Saran as Manager is subsequent to the compromise decree dated 9.7.1979. That deed has to be judged in the light of the compromise decree. The compromise is also an agreement but superadded to the said agreement is command of the court which recorded the compromise. Therefore, the Court has to see the effect of the document dated 12.6.1981 in the light of the compromise decree. The compromise decree and the document dated 12.6.1981 are inconsistent with each other. The compromise is also an agreement but superadded to the said agreement is command of the court which recorded the compromise. Therefore, the Court has to see the effect of the document dated 12.6.1981 in the light of the compromise decree. The compromise decree and the document dated 12.6.1981 are inconsistent with each other. This aspect of the case is to be seen by the trial court when the trial would start. The trial has not started as yet. So it was not proper for the appellate court to express any opinion on the deed of 12.6.1981. 9. The second contention raised by the Petitioner No. 1 about his being Sanrakshak could not be considered by the appellate court because that plea was neither in the pleadings of the parties nor was it the case of the Petitioner before the Respondent No. 1. This plea could not be considered by the Respondent No. 1 for it was non-est before him. I also would not consider this plea at this stage because this is an extraneous plea, which is not covered by the pleadings of the parties before the Civil Court. 10. For making out a case for ad interim injunction it was the duty of the Petitioner No. 1 to show his authority and right to manage the property Admittedly he has not shown any document or right on which he could convince the appellate court about his right to manage the property at the stage of issuance of interim injunction. He has relied on the deed of 12.6.1981. That deed, if read as a whole and without commenting on its validity or otherwise, makes it clear that the Respondent No. 3 was removed and one Kishori Saran was appointed as manager. How would the Petitioner No 1 take advantage of that deed for himself is not spelled out by him in any paras of the plaint or in the writ petition. Therefore, the Petitioner No. 1 has failed to show prima-facie case in his favour, which could be taken into consideration by the Respondent No. 1 for issuing ad interim in junction. The burden of showing prima-facie case was not on the Respondent No. 3. It was on the Petitioner No. 1. 11. Therefore, the Petitioner No. 1 has failed to show prima-facie case in his favour, which could be taken into consideration by the Respondent No. 1 for issuing ad interim in junction. The burden of showing prima-facie case was not on the Respondent No. 3. It was on the Petitioner No. 1. 11. I am unable to agree with the learned Counsel for the Petitioner that the trial court has not considered the existence of prima-facie case by taking into consideration the deed dated 12.6.1981. If any comment was made on that deed, then the Petitioner No 1 probably would be non-suited and he would not be able to get any relief. Therefore, it was better that the trial court did not comment on the validity of the said deed. The non-consideration of the deed was very much in the interest of the Petitioner No. 1 rather than in the interest of the Respondent No. 3. 12. After examining the record and considering the submissions made by the learned Counsel for the parties, I am of the opinion that there is no error apparent on the face of the order of the Respondent No. 1. The ad interim injunction could not be granted to the Petitioner No. 1 on the basis of the facts, which were pleaded by him in his plaint. The trial court had committed an error by Issuing ad interim injunction in appeal, the District Judge was right in setting that error right. The trial court does not seem to have considered whether or not the Petitioner No. 1 had any prima-facie case, which would warrant issuance of ad interim injunction. The judgment of the Respondent No. 1. appellate court, is sound and it has decided the matter of grant of ad interim injunction correctly. Therefore, interference with the said judgment is not warranted. 13. A number of Misc. applications are made in this case by the Respondent No. 3 for preserving the crops of the land and allowing him to harvest the crops on 15.3.1990 this Court had directed in Misc. Application that the District Judge, Jhansi shall permit such of the parties to harvest the crop who shall deposit the highest bid for crop as its price which shall remain deposited before the District Judge and its disbursement will be subject to the result of the writ petition. Application that the District Judge, Jhansi shall permit such of the parties to harvest the crop who shall deposit the highest bid for crop as its price which shall remain deposited before the District Judge and its disbursement will be subject to the result of the writ petition. None of the parties shall harvest the crop unless the District Judge has accepted the bid of the highest bidder who will be permuted to harvest the crop and ensure that the amount as price of the crop is deposited in his court. This order is said to have been compiled with the learned Counsel for the Petitioner No. 1 has submitted that the Petitioner No. 1 is not paid the actual expenses which he has incurred on the cultivation of the land. This matter to be seen by the trial court, because the trial of the suit' cannot be now postponed. Therefore the trial court shall make necessary arrangement for disbursement of the amount. The disbursement was subject to the result of the writ petition. Accordingly the Respondent No. 3 is entitled to get the amount after necessary expenses are deducted therefrom. 14. In respect of the crops of subsequent years i.e. after 15.3.1990 the trial court will ensure that the cost of the crops is realised from the party, who has harvested it. So the trial court will pass necessary orders in respect of the crops of 1991-92 taking into consideration the order dated 15.3.1990 as the guideline in this regard The crop of 1993 shall also be harvested and dealt with in accordance with the order dated 15.3.1990 passed in Misc. Application in this writ petition 15. The trial court shall make necessary arrangement for harvesting and sale of crops, taking into consideration that the Petitioner No. 1 is not entitled to any interim relief of injunction. It shall ensure that the crops of the land in dispute are protected and preserved for the benefit of the Petitioner No. 2 and permit the Respondent No. 3 to manage the property till the disposal of the suit. 16. It shall ensure that the crops of the land in dispute are protected and preserved for the benefit of the Petitioner No. 2 and permit the Respondent No. 3 to manage the property till the disposal of the suit. 16. The trial court may obtain such security from the Respondent No. 3 for allowing him to cultivate and harvest crops as may be warranted in the facts end circumstances of the case having regard to the amount, which is obtained from the land from 13.5.1990 to 1993 The said security shall not be in the form of cash or Bank guarantee but in any other form. 17. It was necessary to pass some orders with regard to the property and its crops because Misc. applications are pending in this Court and if they are left un-disposed the parties are likely to prolong the trial of the case by moving applications before the trial court and thereafter filing appeals before the District Judge and if the District Judge decides the matter one way or the other, the parties are likely to rush to this Court under Article 226 of the Constitution of India Therefore, to allow the trial court to decide the suit smoothly after framing the issues and after allowing the parties to adduce evidence, it is necessary that the proceedings in the suit are not unnecessarily delayed by allowing the parties to file Misc. applications It is better that the parties are put on a straight tract in stead of allowing them to roam in the by-lanes, The order of preservation of property in this writ petition is passed to secure the ends of Justice because this Court under Article 226 of the Constitution is a court to do Ex-debito justltiae. 18 For the reasons mentioned above and with the directions given hereunder to the trial court about the preservation of the suit property and crops, this writ petition fails and is hereby dismissed. However, there will be no order as to cost.