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1996 DIGILAW 60 (GAU)

Budha Dharmankur Sabha v. Sunil Baruah

1996-04-03

D.N.CHOWDHURY

body1996
The subject matter of the suit centring round this revision petition is claimed to belong to the Buddhist community who are followers of Great Buddha. Buddhism is undoubtedly a great World religion and philosophical system which in its train generated a great civilisation with its unique art, architecture, culture, sculpture and vast literature in Pali, Sanskrit, Chinese, Tibetan, Japanese and many other languages. 2. The disputation in which we are concerned here is purely of mundane nature having all the prosaic, if not, the banel, characteristics of a litigative battle - and far away from the basic tenets of Buddhism. Instead of traditional Buddhist affirmation - "I take refuse in the Buddha, (Dharma), I take refuse in the law (Dharma), I take refuse in the Community (Sangha)," Instead, the parties though it prudent to take recourse to the litigation which will be discussed now. 3. This revision petition has arisen out of an order dated 7.2.92 passed by the learned Assistant to the Deputy Commissioner whereby the learned Court below vacated the ad interim injunction granted earlier on 13.3.91. The said order was affirmed by the learned appellate Court, namely Additional Deputy Commissioner, East Khasi Hills, Shillong. 4. On 18.4.90 the learned District Judge/Additional Deputy Commissioner, Shillong in Misc Civil Appeal No.8 (T) of 1989 considered an appeal against an order of temporary injunction dated 11.7.89 passed by the Munsiff, Assistant to the Deputy'Commissioner at Shillong in Misc No.67 (H) of 1989 arising out of the Title SuitNo.21 (H) of 1989. By its order dated 18.4.90 the learned District Judge ordered that, (a) the suit filed in the Court of Munsiff shall be deemed to have been transferred to the Assistant to the Deputy Commissioner; (b) an injunction is granted by the appellate Court against the appellants in the same manner as granted by the lower Court fresh election is held under the direct supervision of the lower Court. In revision the High Court in Civil Revision No. 14 (SH) of 1990 passed a consent order on 3-1.5.90 in presence of Shri Sunil Baruah, petitioner and Shri Jinratan Mahatherah, opposite party that the Shillong Buddhist Association will hold fresh election under the auspices of the Court of Assistant to Deputy Commissioner Shillong and the holding of the election will be conducted by the Vice President of the Association within a period of 3 weeks. By an order dated 16.8.90 the said order of the High Court was further clarified and directed that the election of the interim Executive Committee of the Shillong Buddhist Association consisting of the President, Vice President, General Secretary, Assistant Secretary, Treasurers and 9 Executive Members shall be held without any reference to the Constitution of Bengal Buddhist Association. There is further order in Civil Revision No.37 (SH) of 1990 - Civil Revision No.295 of 1990 passed by this Court on 1.11.90 with which we are not concerned. Clarificatory order dated 16.8.90 was further sought for clarification in Review Application No.8 of 1990, Review Application (T) No.3 of 1990 in Civil Revision No.3 (SH) of 1990, but the said application was rejected by this Court on 9.11.00. It further transpired that on 11.11.90 the election of the interim Executive Committee of Shillong Buddhist Association held in Buddha Vidya Niketan High School premises and the same was conducted by the Munsiff-cum Assistant to the Deputy Commissioner, Shillong. For holding the said election the learned Assistant to the Deputy Commissioner requisitioned police force and {.once force was in fact provided to the learned Assistant to the Deputy Commissioner. All these facts Were communicated by the Munsiff/Assistant to the Deputy Commissioner, Shillong vide his letter No.KSS/H/T/90/232, dated 21st November, 1990. From the said report it appears that as per order of the Court Jinratan Mahatherah although was required to handover charge to the new interim Executive Committee after the election on 11.11.90, the charge was not handed over and the person concerned was not available at Shillong. He intimated the High Court that outgoing General Secretary Sri Jinratan Mahatherah has left Shillong with bag and baggage and he further informed that Sri Jinaratan Mahatherah has locked the entire office and the portion of the temple where Idol of Lord Buddha is placed taking away the keys with him. The following statement of the Munsiff/Assistant to the Deputy Commissioner is pertinent to mention here: "On this matter, I feel that it is out of my jurisdiction to give order to break open the lock in the temple in the absence of any order from the higher Court. The following statement of the Munsiff/Assistant to the Deputy Commissioner is pertinent to mention here: "On this matter, I feel that it is out of my jurisdiction to give order to break open the lock in the temple in the absence of any order from the higher Court. I am referring this matter to the Hon'ble High Court to take into consideration." It appears from the record that the order dated 9.11.90 passed by this High Court in Review Application No.330 of 1990 was impugned before the Hon'ble Supreme Court by Shri Jinaratan Mahatherah and others and an interim order was passed by the Hon'ble Supreme Court on 20.12.90. By that order the Supreme Court passed an interim direction that the body stated to have been elected pursuant to the order of the District Judge dated 18.4.90 in Misc. Civil Appeal No.8 (T) of 1989 as affirmed by the order of the High Court dated 16.8.90 in Civil Revision No. 14 (SH) of 1990 shall not enter upon possession of the properties and affairs of the Shillong Branch of the Buddhist Association (Buddha Dharmarikur Sabha). The said order was directed to be operative for a period of 12 weeks from 20.12.1990. The Court also directed that in the meanwhile the petitioner shall be at liberty to institute such proceedings at law to protect and enforce its proprietary and administrative rights in respect of the Shillong Branch of Buddha Dharmankur Sabha. By its order dated 7.2.91 the Supreme Court disposed of the petition for Special Leave to Appeal with the following order-in presence of the parties : "We are now told-that the petitioner has since instituted an appropriate suit in a civil Court at Shillong. We extend the stay granted on 20.12.90 by further period of 4 weeks from today. It is open to the petitioner to seek such interlocutory reliefs in the Court in which the new suit is instituted. If any such order is made that order shall prevail over the order now under appeal provided that all the necessary parties are represented in that suit as it is appropriate that the parties should work out their rights in the new suit which we are told is comprehensive enough and capable of taking in the entire controversy. With these observations the Special Leave Petition is disposed of." 5. With these observations the Special Leave Petition is disposed of." 5. The Title Suit 6 (T) of 1991 was instituted in the name Sri Buddha Dharmankur Sabha also known as the Bengal Buddhist Association through its General Secretary, plaintiff No.2 impleading 24 defendants. In the aforesaid suit, plaintiff inter alia, averred that in the year 1923 the plaintiff Sabha was given a plot of land measuring 1 bigha in area situated at Shillong, on the hill side, beyond the Forest Subordinates huts on the path leading to the Municipal Trencing Ground in the District of the then Khasi and Jaintia Hills, Assam, by way of free gift by the Governor of Assam (Acting in the premises for and on behalf of the Secretary of State in Council) under an order dated 16.5.1923 | issued by the Deputy Commissioner, Khasi and Jaintia Hills District on behalf of the Governor. A true copy of the said order is annexed hereto as Annexure 2. In pursuance to the aforesaid order dated 16.5.1923, the Deputy Commissioner, Khasi and Jaintia Hills executed conveyance deed in favour of the President of the plaintiff Sabha on 17.5.1923. That in pursuant of its objectives the plaintiff Sabha thereafter over a period of time built a temple, schools, library, students hostels, guest house, charitable dispensary, prayer hall and the likes over the said plot of land gifted to it. The present valuation of the said properties would be more than 40 lakhs. All these properties were managed by the Shillong Branch of the plaintiff Sabha. 6. The plaintiff accordingly claimed for a decree for declaration that the plaintiff No. 1 is an absolute owner of the suit properties and is in possession of the said properties and the plaintiff No.2 is already managing the affairs of the Branch is also entitled the following reliefs : (a) for a declaration that the plaintiff No.1 is the absolute owner of the suit properties is in possession of the said properties and the plaintiff No.2 who is already managing the affairs of the Branch is also entitled to continue the same right without any hindrance/obstruction from the defendants and anybody claiming under them. (b) For a permanent injunction restraining the defendants and each one of them from meddling with the affairs and management of the Shillong Branch of Buddha Dharmankur Sabha also known as Shillong Buddhist Association. (b) For a permanent injunction restraining the defendants and each one of them from meddling with the affairs and management of the Shillong Branch of Buddha Dharmankur Sabha also known as Shillong Buddhist Association. (c) For a perpetual injunction restraining the defendants, its servants or agents from acting in any manner contrary to the Rules and Regulations of the Constitution of the Buddha Dharmankur Sabha and prejudicial to the interest of the Sabha. (d) For a perpetual injunction restraining the defendants, its servants or agent from entering upon the possession of the properties and from interfering with the affairs of the Shillong Branch of the Buddha Dharmankur Sabha in any manner whatsoever. The petitioner also prayed for an ad-interim injunction and accordingly submitted a separate application. The learned trial Court on perusal of the plaint and injunction petition passed an exparte ad-interim injunction on 13.3.91 in Misc Case No.10 (T) of 1991 in TS No.6 (T) of 1991. The defendants entered appearance and submitted show-cause and upon hearing the parties vacated the order of injunction by its order dated 7.4.92 in Misp CaseNo.10 (T) of 1991/TS 6 (T) of 1991. The learned triaf Court while vacating the order of injunction took the following matters into consideration : The order of the District Judge dated 18.4.90 (trial Court wrongly recorded as 18.4.89) and (a) The order of the District Judge/Additional District Judge, Shillong by which it was ordered for election of an ad-hoc interim body and the said order of District Judge was affirmed by the High Court. (b) The learned trial Court also took into consideration the order dated 21.6.90,16.8.90 and 1.11.90 where the High Court passed an order for holding an interim Executive Committee of the Shillong Buddhist Association including a direction of the High Court that after the Executive Committee is elected, it shall be entrusted with the management of Shillong Buddhist Association. (c) The order dated 4.12.90 passed by the trial Court directing the concerned authorities of the Meghalaya Co-operative Apex Bank to allow the defendants/ new office bearers of Buddhist Association to operate the Saving Bank account of the Shillong Buddhist Association. The Court also perused the order of the Supreme Court dated 20.12.90 and 7.3.91. (c) The order dated 4.12.90 passed by the trial Court directing the concerned authorities of the Meghalaya Co-operative Apex Bank to allow the defendants/ new office bearers of Buddhist Association to operate the Saving Bank account of the Shillong Buddhist Association. The Court also perused the order of the Supreme Court dated 20.12.90 and 7.3.91. The trial Court mainly influenced by fact that the opposite party-defendants are newly elected office bearers and members of the Executive Committee of Shillong Buddhist Association and who were duly elected on 11.11.90 as per High Court order dated 31.5.90, 21.6.90, 16.8.90 and 1.11.90. The Court observed that after the election of new office bearers and members of the Executive Committee of the Shillong Budhist Association are supposed to take over charges from the old Committee but due to aforesaid circumstances, they could not take over the charges. The petitioner preferred an appeal against that order before the learned Additional Deputy Commissioner, East Khasi Hills and the learned Additional Deputy Commissioner dismissed the appeal by its order dated 16.4.94 in Misc Appeal No.4 (T) of 1992. The learned appellate Court while considering appeal took into consideration as to whether appellants or the respondents are the office bearers of Buddhist Temple Association of Shillong, who are possession of the temple. The Court found that as per order of the High Court in Civil Revision No. 14 (SH) of 1990, the Assistant to the Deputy Commissioner himself conducted the election and respondents are found to be office bearers of the Association and accordingly, the respondents-defendants are the elected body and since the election of respondents is not challenged, Misc Appeal was not proper. The second consideration taken by the learned trial Court is that the suit was dismissed on 29.6.93 and therefore, held that the appellants are not in possession of the Association because appellants have lost their claim over the property in considering the balance of convenience. The Court observed that the claim of the appellants should be rejected as the old Bengal Acts are no longer applicable in Meghalaya. Besides, Meghalaya is now having its own Registrar of Societies and on considering the comparative loss or injury the Court felt that the majority are with the respondents-defendants and accordingly the upheld the order dated 7.4.92. Hence, this application. 7. Mr. Besides, Meghalaya is now having its own Registrar of Societies and on considering the comparative loss or injury the Court felt that the majority are with the respondents-defendants and accordingly the upheld the order dated 7.4.92. Hence, this application. 7. Mr. S. Chakraborty, learned counsel appearing on behalf of the petitioner submitted that the learned trial Court acted illegally and without jurisdiction in vacating the order of injunction on 7.4.92 which cause grave failure of justice. The Court while vacating the order of injunction took into consideration irrelevant consideration overlooking the relevant considerations. Mr. Chakraborty particularly draws my attention to the fact that all along the petitioner plaintiff were in possession of the suit property. Plaintiffs were in possession of the suit property on the date of institution of the suit, on the date when ad interim injunction was passed and also on the date when ad interim injunction was vacated on 7.4.92. Mr. Chakraborty submits that even when the appeal was dismissed on 16.4.94, by the learned Additional Deputy Commissioner, the petitioner-plaintiff were in possession of the suit property and only on the dismisal of the appeal as per Deputy Commissioner's order the lock of the temple was opened on 22.4.1994 at 3.30 PM, that fact is also admitted by the defendants-respondents in their reply to show cause to the Rule by Annexure ZI and by High Court order dated 27.4.94 order of status-quo was granted as regards the possession and management of the suit property. Mr. Chakraborty submits that when essential ingredients for granting an ad interim injunction was evident the learned trial Court fell into serious error by vacating the injunction order on erroneous consideration. Mr. Chakraborty submits that the Supreme Court by its order dated 20.12.90 virtually kept the order of the High Court in abeyance. Supreme Court also directed that the Body stated to have been elected pursuant to the order of the District Judge dated 18.4.90 as affirmed by the High Court on 16.5.90 in Civil Revision No. 14 (SH) of 1990 shall not enter upon possession of the properties and affairs of the Shillong Branch of the Buddhist Association. The Supreme Court considering the case of the petitioner-plaintiff directed that the plaintiffs shall be at liberty to institute a legal proceeding to protect and enforce its proprietory and administrative rights in respect of the Shillong Branch of Buddha Dharmankur Sabha. The Supreme Court considering the case of the petitioner-plaintiff directed that the plaintiffs shall be at liberty to institute a legal proceeding to protect and enforce its proprietory and administrative rights in respect of the Shillong Branch of Buddha Dharmankur Sabha. The said order was further extended and clarified by the order of the Supreme Court on 7.3.91. The order of the Supreme Court, submits Mr. Chakraborty is binding 01. all subordinate Courts and the learned trial Court took into consideration of the order of the High Court and preferred to rely on the order of the High Court and District Judge overlooking the directions and order of the highest Court of the land. Mr. Chakraborty submits that all the basic ingredients, viz, prima facie case, balance of convenience were in favour of the plaintiff and refusal to grant injunctions would amount to irreparable loss to the plaintiff-petitioner. The Supreme Court considering all aspect of the matter preserved and protected the interest of the petitioner and the said protection was arbitrarily taken away by the Courts below which caused the grave failure of justice. Mr. Chakraborty submitted that the order of the appellate Court is no order at all inasmuch as it has failed to take into consideration the case of the petitioner-appellants and dismissed the appeal on extraneous consideration which caused grave miscarriage of justice. Mr. BN Dutta, learned counsel appearing for the respondents strenuously submits that this Court is exercising revisional jurisdiction and the revisional jurisdiction is limited and as such question of interference against the concurrent finding of fact is not warranted. Mr. Dutta particularly submits that the question of .granting or refusing injunction is a discretionary power and since the discretion is properly exercised question of interfere by this Court in exercising revisional power does not arise. The question as to whether there is an existence of prima facie case, balance of convenience, irreparable loss is a finding of fact and those finding of fact cannot be interfered in revisional jurisdiction. Mr .Dutta also submits that on merit also the learned Courts below acted within its jurisdiction and on that count also revision petition is liable to be dismissed. Mr .Dutta particularly referred to a decision reported in AIR 1995 SC 1357 and submits that the High Court in exercise of revisional jurisdiction cannot reopen finding of fact recorded by the Courts below. 8. Mr .Dutta particularly referred to a decision reported in AIR 1995 SC 1357 and submits that the High Court in exercise of revisional jurisdiction cannot reopen finding of fact recorded by the Courts below. 8. An interlocutory order of injunction is to be made when the legal right asserted by the plaintiff and the violation as alleged are debated, disputed and hazy till the same is adjudicated at the trial on evidence. The Court at this stage work and operate on some well settled principles of administration of justice by providing interim palliative which is a dicretionery remedy, a stop gap arrangement. This is purely a protem device which is aimed to preserve and protect the suit property or otherwise for maintaining the status quo on prima facie material. "The Court also in restraining a defendant from exercising what he considered his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration. Whether the defendant is yet to commence his enterprise or whether he has already been doing so in which the latter case consideration is somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted" Wander Ltd. vs. Antox India (P) Ltd, (1990) Suppl SCC 727. Granting of injunction is a judicial process by which the parties are required to do or refrain from doing. The conditions for granting injunctons are : (a) That there is a serious disputed question to be tried; (b) The interference of the Court is called for to protect the party from the" passage of injury would be caused. Non interference by the Court will cause serious material injury; and (c) A comparative hardship or mischief or inconvenience is more likely to occur in withholding the injunction. It is no doubt an equitable remedy and the Court is required to exercise proper judicial discretion. This High Court by a Division Bench judgment in Shri Bindeshwar Narayan Singh vs. The Managing Committee, Shri Sundermal Hindi High School, (1981) GLR 231 pointedly called down the consideration which are extracted below: "The circumstances under which temporary injunction may be granted have by now been more or less crystallised. This High Court by a Division Bench judgment in Shri Bindeshwar Narayan Singh vs. The Managing Committee, Shri Sundermal Hindi High School, (1981) GLR 231 pointedly called down the consideration which are extracted below: "The circumstances under which temporary injunction may be granted have by now been more or less crystallised. Where in any suit it is proved by affidavit or otherwise that any property in dispute is in danger of being wasted, damaged, or alienated By any party to the suit, or to restrain the defendant from committing injury of any kind relating to the same property or right, the Court may grant a temporary injunction at its discretion as such terms as to the duration of the injunction and subject to condition as the Court thinks fit. Where the defendant has committed or is threatening what the plaintiff alleges to be a trespass or a wrong, the plaintiff may ask the Court to direct the subject matter of the dispute to be maintained in status quo till the issue between the parties has been determined. Where the sole object of a suit is protection by means of an injunction, to withhold the temporary injunction may practically decide the cause in favour of the defendant, without giving the plaintiff an opportunity to establish the truth of the case made by his plaint. It is true that the Court will not so interfere if it thinks that there is no real question between the parties, but assuming that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. Where a perpetual injection is sued for and the plaintiff applies for a temporary injunction, the Court should grant the temporary injunction if the effect of not granting such an injunction will be to deprive the plaintiff for ever of the right claimed by him in the suit. The Court should be satisfied that the matter is emergent and its immediate assistance is required before it will issue a temporary injunction, for there is a possibility of irreparable injury being caused to the party. If an injunction is prayed for either before or at or after the hearing of any case or matter, to prevent any threatened or apprehended waste or trespass, such an injunction may be granted if the Court shall think fit and proper. If an injunction is prayed for either before or at or after the hearing of any case or matter, to prevent any threatened or apprehended waste or trespass, such an injunction may be granted if the Court shall think fit and proper. It may not by itself be a sufficient reason for the issue of a temporary injunction that the suit would be infructuous if it did not issue, but there may be causes where refusal to grant temporary injunction pending disposal of the suit would make the success at the close of the suit but a barren and worthless victory." Considering the case in hand it appears that the learned trial Court committed grave error in vacating the injunction on considerations which were totally irrelevant in deciding the injunction matter. The learned trial Court vacated the injunction order on the considerations that an order was passed by the learned District Judge on 18.4.90 for election of an ad hoc interim body to manage the affairs of the Association during the pendency of a suit and the said order for election was affirmed by the High Court. The learned trial Court also took into considerations the orders of the High Court dated 21.6.90,16.8.90 and 1.11.90 for holding the interim Committee and emphasised that the newly elected office bearers and members of the Executive Committee of the Shillong Buddhist Association are duly elected on 11.11.90 as per High Court order dated 31.5.90, 21.6.90, 16.8.90 and 1.11.90. The learned trial Court overlooked that despite that the body stated to have been elected pursuant to the order of the District Judge dated 18.4.90 as affirmed by High Court on 16.8.90, the Supreme Court gave an interim direction to that body not to interfere upon the possession of the properties and the affairs of the Shillong Branch of the Buddhist Association. The said order was subsequently confirmed on considering all aspect of the matter. The Supreme Court observed that it is open to the petitioner to seek such interlocutory relief in the Court in which the new suit is instituted. If any such order is made that order shall prevail over the order now on appeal (emphasis supplied). After the Supreme Court direction as referred to above, the trial Court could not have reverted back on the decision of the High Court. If any such order is made that order shall prevail over the order now on appeal (emphasis supplied). After the Supreme Court direction as referred to above, the trial Court could not have reverted back on the decision of the High Court. On the facts and circumstances the order passed by the learned Assistant to the Deputy Commissioner dated 7.4.92 is illegal and hereby set aside. Order of the learned appellate Court dated 4.5.92 is unsustainable both on facts and in law. The question before the Court in considering the injunction was actually who was in possession of the temple and admittedly, from the facts and record as referred to above the petitioner appellants were in possession of the suit land and since the petitioner-appellants was in possession the petitioners-defendants were entitled to possess the suit property till disposal of the suit. Whether the petitioner-appellants were the office bearers of the Association was an irrelevant consideration. Other two considerations taken by the learned appellate Court also equally irrelevant considerations which affected the ultimate decision of the learned appellate Court. On the facts of the case. I, therefore, set aside the order dated 16.4.94 passed by the learned Additional Deputy Commissioner, East Khasi Hills District. 9. Since the orders as referred to above are set aside the next question is as to whether after two orders as referred to above are set aside, whether the plaintiffs-petitioners are entitled to possess the property. I cannot however overlook the factual situation as was prevailing on the date of hearing of the matter in this Court. On that day and also on today it is apparent that the temple in question is under the control of respondents-defendants w.e.f. 20.4.90 and status quo order was passed only on 27.4.94 by the High Court and by virtue of status quo order the temple is under the control of the respondents and Dharmansala etc. is under the control of the petitioner. It is pointed out by the parties that the school in question was taken over by the Government. Therefore, in spite of setting aside of the orders of the Courts below, the status quo as on today shall only continue. From the facts as narrated above, all is not well so far the administration and management of the properties concerned. The Buddhist believe in eight fold viz. Therefore, in spite of setting aside of the orders of the Courts below, the status quo as on today shall only continue. From the facts as narrated above, all is not well so far the administration and management of the properties concerned. The Buddhist believe in eight fold viz. the Right modes of seeing things, Right thinking, Right speech, Right action, Right mode of living, Right effort in every mode of being, Right mindfulness and Right meditation. In the interest of all concerned, I pass the following orders : (a) The case will go back to the trial Court and the trial Court shall dispose of the suit as expeditiously as possible. (b) Status quo as on today shall continue; For greater interest to all and particularly for greater interest of the institution I also pass the following orders : 1. The Chief Secretary to the Government of Meghalaya will constitute a Committee who shall lookafter the affairs of the property in place of the plaintiff and defendants during the pendency of the suit; 2. After constitution of the Committee it shall start functioning over the management and administration of the property and the order of status quo will come to an end immediately on assumption of the charge of the said Committee. 3. The Chief Secretary shall monitor the affairs of the Committee and explore measure for an early solution of the biazzare situation so that the property which ' was donated by the Government is properly administered and utilised and the institution for which it was created live upto its reputation according to Buddhist tenets and ideals. The Chief Secretary of MeghalayS, shall be at liberty to regulate the affairs as he considers to be good in the interest of the institution. The parties are directed to extend full co-operation to the directions of the Chief Secretary as well as the directions of the Committee to be constituted by the Chief Secretary. Send a certified copy of this order to the Chief Secretary, Meghalaya. With this, the revision petition is disposed of. No costs.