SHANIMAHATMA SWAMY v. C. GANGAIAH — 1994 DIGILAW 123 (KAR)

R. RAMAKRISHNA, J. ( 1 ) THE above appeals are directed against the order dated 25-2-1993 on ia No. 38 in os No. 45 of 1988 passed by the learned additional civil judge, Bangalore rural district, Bangalore. ( 2 ) IA No. 38 was filed by the first defendant in the suit under order 39, rules 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of temporary injunction restraining the appellants from conducting any festivals or functions in the temple and receiving any donations offerings by way of cash or kind from the devotees and public. The appellants in mfa No. 1255 of 1993 are (i) the deity Sri Shanimahatma Swamy and (ii) the second appellant, the hereditary dharmadhikari and archak (hereinafter referred to as 'the plaintiffs' ). The appellants in mfa No. 313 of 1994 are defendants 28 to 30 in the suit who are the brothers of the second appellant in mfa No. 1255 of 1993. Mfa No. 1255 of 1993 was filed on 14-7-1993. Mfa No. 313 of 1994, against the very same Order, was filed on 18-8-1993. Since the prayer in both the appeals are identical and also common interest is involved to the appellants in both the appeals, it is quite appropriate to pass a common order. ( 3 ) BEFORE adverting to the grievance of the appellants, it is necessary to advert to the few facts which are of some help to decide both the appeals in the best manner possible. ( 4 ) THE deity Sri Shanimahatma Swamy situated at kanasavadi village, doddaballapur taluk was established by late gangahanumaiah, the father of the appellants, on the divine direction and he endowed the temple in the year 1966 with certain properties by way of gift in favour of the deity. Under the said gift deed the suit properties in s. No. 22 of kanasavadi village was absolutely endowed to the first appellant-deity. The first appellant being the deity and the donee being the idol, the said gift deed was expressed to be executed in favour of the first respondent described as a person who was functioning as the secretary. Under the said gift deed the suit properties in s. No. 22 of kanasavadi village was absolutely endowed to the first appellant-deity. The first appellant being the deity and the donee being the idol, the said gift deed was expressed to be executed in favour of the first respondent described as a person who was functioning as the secretary. Though the endowment commissioner declared this temple as a private temple and not coming under the Provisions of the Mysore religious and charitable institutions Act, 1927, they started some rift between the first respondent and the sons of gangahanumaiah and therefore, the deity and its archak filed suit os No. 45 of 1988 for a declaration that the temple and the properties annexed to the temple are the family temple of late gangahanumaiah and they shall continue to be shebait as the exclusive vahivatdars, dharmakarthas, dharmadkikaris and trustees and for a permanent injunction restraining respondents 1 to 16 or anybody claiming under them from interfering with the management of this temple an d also for a mandatory injunction to give a direction to the first respondent from making over the jewellery and other assets belonging to the temple. ( 5 ) THE contentions raised by respondents 1 to 16 in the saidsuit was that they are lawfully entitled to function and manage the affairs of the temple as trustees for the betterment of the temple. ( 6 ) AFTER the suit was instituted the plaintiff filed ia No. I for an order of temporary injunction against the defendants 1 to 16 restraining them from interference; ia No. Ii under the same Provisions of law seeking an order of mandatory temporary injunction against the first respondent only and ia No. Iii under the same Provisions of law seeking an order of interim injunction restraining the first respondent from collecting, receiving, handling any cash etc. ( 7 ) THE trial court refused to grant the interim orders on the above applications and therefore, the plaintiffs have filed mfa nos. 441, 477 and 473 of 1990. During the pendency of the appeals, the second plaintiff and the first respondent filed a memo, signed by them, admitting the terms of the memo and its execution. ( 7 ) THE trial court refused to grant the interim orders on the above applications and therefore, the plaintiffs have filed mfa nos. 441, 477 and 473 of 1990. During the pendency of the appeals, the second plaintiff and the first respondent filed a memo, signed by them, admitting the terms of the memo and its execution. On the strength of the said memo, this court passed an order on 21-10-1991 allowing the appeals in terms of the memo in respect of the prayers made in ia nos. I to iii filed by the plaintiffs in the trial court. The endowment commissioner was directed to take possession of the institution and its properties positively on 15-11-1991. There was further direction to manage the institution and its properties in terms of the memo under the instructions of the trial court. A direction was also given to the trial court to dispose of the suit as early as possible and in any event before 31-7-1992. ( 8 ) CONSEQUENT to this arrangement the assistant commissioner was appointed to administer the institution and its properties. When there was substantial progress in the original suit, the second plaintiff and defendants 28 to 30 who claim right of archakship of the temple described themselves as dharmadhikaris have issued pamphlets to celebrate jathra and annasantharpana and therefore, they requested the devotees to donate both in cash and kind. ( 9 ) THE first respondent has filed ia No. 38 to restrain the plaintiffs and defendants 28 to 30 from conducting jathra and annasantharpana on the ground that as per the terms of the joint memo a direction was given to the commissioner for endowment to take over the temple and its properties and therefore, he has handed over the temple and its properties to the assistant commissioner for endowments who is maintaining the affairs of the temple regularly as required by the order of this court. He has further contended that the appellants claiming right of archakships and describing themselves as dharmadhikaris of the temple have issued the said notice since the administration of the temple is handed over to the commissioner for endowments, the appellants cannot claim themselves as dharmadhikaris either individually or collectively. He has further contended that the appellants claiming right of archakships and describing themselves as dharmadhikaris of the temple have issued the said notice since the administration of the temple is handed over to the commissioner for endowments, the appellants cannot claim themselves as dharmadhikaris either individually or collectively. It is further alleged that the donations now sought to give for jathra will be misappropriated by them and no part of the collections will be accounted and paid over to the assistant commissioner. The another ground is that the festivals and rituals of the temple being the affairs of the temple came to be conducted by the assistant commissioner, who is incharge of the temple. If any devotee or archak wants particular rituals to be conducted, he has to get the same done by the assistant commissioner making requisite payment. Ia No. 38 was insisted by the appellants on the sole ground to conduct jathra, because the temple is founded and established by their father and this institution belongs to the family they are conducting festivals in continuation of what they were doing all these years and the conducting of the festival is being their traditional and customary rights the court cannot interfere with the same. ( 10 ) THE trial court has rejected the contention of the appellants solely on the ground that the terms of memo filed by the parties does not give any right for the appellants to conduct any jathra and annasantharpana and since the appellants are proceeding to conduct the jathra in their individual capacity, they are not entitled to do so. ( 11 ) MR. M. r. janardhan, the learned senior Advocate representing the appellants in mfa No. 313 of 1994, has questioned the competency of the trial court to grant an order of injunction in favour of the first respondent when the cause of action is quite different and consequently, the temporary injunctions generally will be granted as a step-in-aid for final disposal and therefore, the trial court has committed an error in allowing ia No. 38. The further submission of the learned Advocate is that if the appellants are flouted the order passed in mfa No. 313 of 1994, a separate course is open, though it cannot be said that the order was flouted. The further submission of the learned Advocate is that if the appellants are flouted the order passed in mfa No. 313 of 1994, a separate course is open, though it cannot be said that the order was flouted. ( 12 ) THE contention raised by Sri Rangavittalachar, the learned Advocate for the appellants in mfa No. 1255 of 1993 is that the appellants who are the sons of late gangahanumaiah, the founder of the temple, have every right to perform the jathra and annasantharpana as this function being a family function which they are conducting from several years, the joint memo is not an impediment for them to conduct jathra and therefore, the order of the trial court is legally unsustainable. ( 13 ) HOWEVER, Sri K. R. D. Karanth, the learned Advocate forthe first respondent contended that the appellants are wilfully disobeying the order passed by virtue of joint memo and therefore, the trial court having considered this fact has proceeded to grant an injunction and the same cannot call for interference. The further contention of the learned Advocate is that since the first respondent invoked Section 151, CPC along with order 39, rules 1 and 2, the order does not call for any interference. ( 14 ) THERE is no two opinion to hold that ia No. 38 was filed altogether with a different cause of action and in that view of the matter the order of the trial court is not sustainable. The underlying principle is that it is only in cases where the defendants claim the relief arises out of the plaintiffs cause of action or incidental to it that he can ask for a temporary injunction against the plaintiff. See: suganda bai v sulu bai; abbobucker v kunshamoo; and zandaram v prahladrao. ( 15 ) BUT the question now remains to be answered is whetherthe trial court has altogether unjustified in passing the impugned order in the background of the joint memo filed and accepted between the parties by invoking its inherent power under Section 151, cpc? ( 16 ) IT is curious to note that the appellants in mfa No. 313 of 1994 have altogether took up a different plea of stating that the joint memo was filed and accepted between the plaintiffs and the first respondent, and since they are not the parties to the said joint memo, the same is not binding. ( 16 ) IT is curious to note that the appellants in mfa No. 313 of 1994 have altogether took up a different plea of stating that the joint memo was filed and accepted between the plaintiffs and the first respondent, and since they are not the parties to the said joint memo, the same is not binding. Admittedly, the appellants therein have filed their appeal on 18-8-1993 and there was a delay of 112 days to file this appeal. However, this court considering the application for condonation of delay has took a lenient view in condoning the delay as whatever order that is applicable to the plaintiffs will hold good to the defendants 28 to 30 also. In this background, we have to resort to the question whether the joint memo is binding all the parties in the suit or the said joint memo is only between the plaintiffs and the first respondent. While appreciating this fact, one should not fail to take note of that the main contest in the suit and the relative appeals is between the plaintiffs and the first respondent. Though the defendants 28 to 30 said to have some interest in the suit their interest is being protected by the second plaintiff. When the parties were agitating before this court in mfa nos. 441, 477 and 473 of 1990 and they being settled by the intervention of the learned advocates and the main parties concerned, it is not open for the defendants 28 to 30 to show their ignorance with regard to the order passed on the basis of the joint memo to contend that the same is not binding on them as they are not the signatories. Their silence from the date of the order till they have filed the appeal demonstrate their acquiescence and they are estopped from contending at this hour the binding nature of the said joint memo. Therefore, this contention of the defendants 28 to 30 is rejected at its threshold. ( 17 ) NOW coming to the question of hereditary right of the plaintiffs and defendants 28 to 30 to conduct jathra, the same cannot be disputed. But under the joint memo the parties have agreed to bind themselves to the terms agreed between them until disposal of the case. ( 17 ) NOW coming to the question of hereditary right of the plaintiffs and defendants 28 to 30 to conduct jathra, the same cannot be disputed. But under the joint memo the parties have agreed to bind themselves to the terms agreed between them until disposal of the case. The joint memo is a substitution of the order dated 5-3-1990 by common understanding arrived at between the parties. The terms at (a), (b) and (c) at Annexure c1 are relevant to note and they are as follows:" (A) during the pendency of the suit, the institution be managed by the commissioner for endowments who shall appoint an assistant commissioner of endowment to look after the day-to-day management of the institution. The said management shall automatically terminate after 45 clear days from the date of disposal of the suit. In the event of the suits os 45 of 1988 and os 409 of 1988 being dismissed the management shall revert to respondents 1 to 16 and the second plaintiff who are members of the executive committee (the status of which is disputed by the 2nd plaintiff ). (b) the management by the assistant commissioner as executive officer for the endowment shall be subject to the overall supervision by the endowment commissioner, Bangalore. (c) the management shall not disturb or take the archakship of the 2nd plaintiff who shall be otherwise under the control of assistant commissioner for endowments. The 2nd plaintiff may after previous intimation depute any of the other sons of late gangahanumaiah as archak for the poojas in the temple. Any action against the archak shall be subject to the approval of the lower court. The lower court shall make appropriate order within 2 weeks of the report of the executive officer-assistant commissioner for endowment. "clauses (d) to (h) are in respect of administering the cash and other valuables. By this Order, except retaining the archakship of the second plaintiff under the control of the assistant commissioner for endowments, all the parties are prevented to interfere in any manner to the administration of this temple pending disposal of the original suit. This is obviously a fact that has influenced the trial court to restrain the plaintiffs and defendants 28 to 30 to conduct jathra and annasantharpana as it involves altogether a different approach which was not the subject-matter of a joint memo. This is obviously a fact that has influenced the trial court to restrain the plaintiffs and defendants 28 to 30 to conduct jathra and annasantharpana as it involves altogether a different approach which was not the subject-matter of a joint memo. The plaintiffs and defendants 28 to 30 are not precluded to seek permission from the trial court as a specific direction was made in the order that if there is any difficulty, the trial court is to be approached for necessary orders. ( 18 ) NOW, coming to the competency of the trial court to pass are straint order against the appellants, it is already noted that under order 39, rules 1 and 2, CPC the first respondent had no competency to seek for an order of injunction and the trial court had no jurisdiction to grant the same. The materials that are necessary to get over this controversy lies in the answer of exercising the inherent power. ( 19 ) IN manohar lal v seth hiralal, the majority view of the learned judges, j. c. shah, j. , dissenting, held thus:"it is well-settled that the Provisions of the code are not exhaustive, for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' in Section 94 is only this that when the rules in order 39, Civil Procedure Code, prescribe the circumstances in which the temporary injunction can be issued, ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the Provisions of Section 94 were not there in the code, the court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the Provisions of Section 94 of the code have their effect and hot in taking away the right of the court to exercise its inherent power. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the Provisions of Section 94 of the code have their effect and hot in taking away the right of the court to exercise its inherent power. Section 151 itself says that nothing in the code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the Provisions of the code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do Justice between the parties before it. Further, when the code itself recognises the existence of the inherent power of the court, there is no question of implying any powers outside the limits of the code. " ( 20 ) M. R. singh v chief commissioner, manipur, is a casewhere a compulsory retirement in public interest issued under a decision which was not subsisting at that time, its validity of retirement and held:"it is also the view of this court that if power can be traced to a valid power the fact that the power is purported to have been exercised under non-existing power does not invalidate the exercise of the power. " ( 21 ) THE joint memo invested the power of the assistant commissioner whose duty is in the nature of receiver to exercise all the powers that were vested with the plaintiffs and the committee headed by the first respondent. Therefore, conducting of jathra which indirectly gives right to the plaintiffs and defendants 28 to 30 are extinguished in view of the joint memo which virtually interfered with the power of receiver. ( 22 ) IN everest coal co. V state of bihar, a question similar to the one now raised was considered by the Supreme Court and the Supreme Court held thus:"when a court puts a receiver in possession of property, the property comes under court custody, the receiver being merely an officer or agent of the court. Any obstruction or interference with the court's possession sounds in contempt of that court. Any obstruction or interference with the court's possession sounds in contempt of that court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the court, the proceeding may continue to a conclusion on the merits. In the ordinary course, no court is so prestige-conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its receiver unless the action is totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor. Grant of leave is the Rule, refusal the exception. After all, the court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the receiver represents neither party, being an officer of the court. " ( 23 ) IN thaniappa v t. Soorappa, the learned single judge of this court considered the legal consequences arising when a receiver is appointed by the court and its incidence. In the said decision, it is held thus:"a receiver appointed by the court is an officer of the court and he acts on behalf of the court. The possession of a receiver of the properties in respect of which he is appointed as receiver is the possession of the court. Whether a party to the proceeding or a third person is appointed as a receiver, it makes no difference. The appointment of a receiver acts as an injunction against the parties to the suit and they will not be entitled to interfere with the possess of the receiver of the properties affected by such appointment. Though the rights of persons who are not parties to the proceeding are not affected by the order appointing a receiver but when once a receiver is put in possess of the properties in respect of which he is appointed as receiver, the third parties who may even possess rights paramount to that of a receiver or rather to that of the party obtaining a receiver cannot exercise those rights without the leave of the court. The receiver is nothing but a lib of the court. As such interference with the possession of the receiver is interference with the possession of the court. The receiver is nothing but a lib of the court. As such interference with the possession of the receiver is interference with the possession of the court. " ( 24 ) IN view of the facts and circumstances discussed above, though the order of the trial court is not properly worded, but taking into consideration the context of the order in the background of joint memo and also appreciating the inherent power of the court to pass orders to prevent the abuse of process of law, the order made on ia No. 38 does not call for any interference. ( 25 ) WHEN the appeals are in progress, on 1-3-1994 the defendants 2, 3, 4 and 12 in os No. 45 of 1988 have filed an application under order i, Rule 10 read with Section 151 of the Code of Civil Procedure to implead them as respondent on the ground that any order passed in the appeals will seriously affect the right of the committee of the management to which they are the members. Since the first respondent, as a secretary of the committee of the management, is duly representing the case, this application which is filed belatedly does not require any consideration and the same is dismissed. ( 26 ) IN the result, the following order is passed:the appeals fail and they are dismissed. The parties are ordered to bear their own costs. --- *** --- .