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1997 DIGILAW 11 (RAJ)

Jagdish Chandra v. Prakash Mal

1997-01-03

P.C.JAIN

body1997
Honble JAIN, J. – This revision petition u/s. 115 CPC is directed against the order dated 15.1.1996 passed by the learned Addl. District Judge No. 2, Jodhpur whereby the learned Addl. District Judge has set aside the order dated 28.11.1995 passed by the learned Civil Judge (Junior Division) Osian. (2). In this case, the dispute between the parties is with regard to the right of `Sewa Pooja of the idol of `Sachhiyaya Mataji in the Sachhiyaya Mataji Temple at Osian. The above temple is being managed by the Sachhiyaya Mataji Trust, Osian under its written Constitution. There are various Poojaris and they exercise their right of `sewa-pooja by rotation, which comes after every 12 years. (3). The plaintiff-respondent filed a suit for declaration and injunction and alongwith that suit, also moved an interlocutory application u/O. 39 Rr. 1 & 2 CPC against defendant-petitioner Jagdish Chandra and defendant-non-petitioner No. 2 Ratanlal. The plaintiff-respondent sought the relief that he may be allowed to perform Sewa Pooja and to receive the offerings made at the temple. It may be stated here that when this dispute was raised before the trust, as per Cl. 8(3) of its Constitution, the Trust proceeded to adjudicate the above dispute and in the meantime, it was ordered that an account of the offerings received at the temple be maintained and be kept in the custody of the Trust so that after adjudication of the dispute, that amount may be handed over to the rightful claimant. Thereafter, the Trust proceeded to settle the dispute but however, before the above dispute could be resolved by the Trust, the plaintiff-non-petitioner No. 1 Prakash Chandra filed the above suit. (4). After hearing both the parties, the learned trial Court came to the conclusion that the direction given by the Trust was very just and reasonable and the interests of the real claimant were secured as the offerings and receipts were or- dered to be kept in the custody of the Trust. The learned trial Court also tried to ascertain the claim of the plaintiff regarding his right of Sewa pooja as per rotation but it found itself unable to a scertain the, therefore, the interlocutory application of the plaintiff-non-petitioner No.1 was dismissed, by the learned trial Court vide its order dated 28.11.1995. (5). Aggrieved against the order dated 28.11.1995, the plaintiff- non-petitioner No. 1 filed an appeal before the learned Addl. (5). Aggrieved against the order dated 28.11.1995, the plaintiff- non-petitioner No. 1 filed an appeal before the learned Addl. District Judge No. 2, Jodhpur, who vide his judgment dated 15.1.1996 allowed the appeal and set aside the impugned order dated 28.11.1995 and ordered that the right of Sewa-Pooja from Kartika Vadi 1 Samvat 2053 to Kartik Sudi 1 Samvat 2053 be given to the plaintiff-non-petitioner No. 1. Hence this revision petition. (6). I have heard Mr. R.K. Thanvi, the learned counsel for the petitioner. Nobody has appeared on behalf of the non-petitioners despite service. (7). It may be stated here that the administration of the above Temple is being governedby the written Constitution of the above registered Trust. A copy of the written Constitution of the Trust has been made available to the Court. Clause 8(3) of the written Constitution of the Trust authorities the Trust to settle such disputes. In this case, there is no dispute that the dispute is with regard to the right of sewa- pooja between the two Poojaris and, therefore, as per Cl.8(3) of the Written Constitution of the Trust, the dispute was referred to the Trust and the Trust proceeded to resolve the dispute and for resolving such a dispute, the record kept by the Trust was required to be examined but before the above decision could be rendered by the, plaintiff-non-petitioner No. 1 filed the suit and also moved an appli- cation u/O. 39, Rr.1 & 2 CPC. (8). It is well settled principle of law that before obtaining any interlocutory order, the plaintiff is required to prove prima facie case, balance of convenience and comparative hardship. In the instant case, after examining the material on record, the learned trial Court opined that the documents produced by the plaintiff did not clearly show any previous rotation regarding Sewa-Pooja of the plaintiff. Thus, it was a question of fact and the first appellate Court had no right to disturb the finding of fact recorded by the learned trial Court. Even if the order of the Trust is allowed to stand, it would not cause any irreparable injury to the plaintiff because the Trust has already ordered to maintain the account of the offerings and receipts of the Temple so that they may be handed over to the rightful claimant. (9). Even if the order of the Trust is allowed to stand, it would not cause any irreparable injury to the plaintiff because the Trust has already ordered to maintain the account of the offerings and receipts of the Temple so that they may be handed over to the rightful claimant. (9). In Smt. Vimla Devi vs. Jang Bahadur(1), this Court laid down that the appellate Court can only interfere when the order of the trial Court is arbitrary, or perverse or capricious or in disregard of sound legal principles or without considering all the relevant record. Where the Court of first appeal interferes with trial Courts order in disregard of the above factors, order of appellate Court is without jurisdiction and deserves to be set aside in revision u/s. 115 CPC. (10). In my opinion, the interference made by the first appellate Court was not warranted in the facts and circumstances of the present case. The impugned order passed by the learned trial Court was just and proper. The learned trial Court after examining the material on record came to the conclusion that the plaintiff has failed to prove his prima facies case regarding rotation of his right of Sewa-Pooja and he has also failed to prove when was his last rotation. The learned appellate Court has failed to give its reasons as to how it came to the conclusion regarding previous rotation of the plaintiff for determining his next rotation period. The Constitution of the Trust specifically provides that such disputes should be resolved by the Trust. It is also not disputed that the Trust proceeded to resolve this dispute but before it could resolve it, the plaintiff had filed the present suit. Even for safeguarding the interest of the plaintiff, the Trust had already passed an order to maintain an account regarding the offerings and receipts made at the Temple. Thus, the Trust passed a very reasonable interim order. If the plaintiff would have waited for sometime, the Trust could have resolved the dispute and this litigation could have been avoided. (11)In this view of the matter, I am firmly of the view that the impugned order dated 15.1.1996 passed by the learned Addl. District Judge No. 2, Jodhpur is not sustainable and the order dated 28.11.1995 passed by the learned Civil Judge (Junior Division), Osian deserves to be maintained. (11)In this view of the matter, I am firmly of the view that the impugned order dated 15.1.1996 passed by the learned Addl. District Judge No. 2, Jodhpur is not sustainable and the order dated 28.11.1995 passed by the learned Civil Judge (Junior Division), Osian deserves to be maintained. (12)In the result, I accept this revision petition and set aside the impugned order dated 15.1.1996 passed by the learned Addl. District Judge No.2, Jodhpur. The parties are left to bear their own costs.