DYAMANNA v. GADDAPPA — 1999 DIGILAW 657 (KAR)

R. GURURAJAN, J. ( 1 ) THIS revision petition is filed by the petitioners-defendants aggrieved by the orders of the Civil Judge, Senior Division, Yadgir in M. A. No. 6 of 1998, dated 22-8-1999 wherein the Appellate Judge has set aside the orders of the Civil Judge, Junior Division, Shorapur in O. S. No. 13 of 1991, dated 13-3-1998. The parties, for the sake of brevity, are referred to as per their ranking in the Trial Court. ( 2 ) THE facts in brief are as under. The respondent-Gaddappa (plaintiff) filed suit in O. S. No. 13 of 1991 on the file of the Munsiff, Shorapur seeking for an order of injunction against the defendant restraining them from causing interference and obstruction to the plaintiff for performing the pooja and conducting the annual jathra, management of Geddamma Temple situated at Jangina-gaddi village, Shorapur Taluk. Along with the plaint, he filed an interim application seeking for a temporary injunction. The case as pleaded is that the defendant 2 (petitioner 2) is the adoptive mother of the plaintiff. The plaintiff was taken in adoption by the defendant 2 and her husband, late Amarappa s/o. Bhimappa Poojari in terms of an adoption deed dated 6-3-1978 bearing Registration No. 15 of 1977-78. The second defendant-husband has given the rights of pooja of the temple and performance of annual jathra etc. , to the plaintiff (respondent 1 herein ). The defendants 1, 3 and 4 i. e. , petitioners 1, l (iv) and respondent 2 (defendant 4) are totally unconcerned with the family of Amarappa and also the deity. They have no right whatsoever in performance of pooja and conduct of the annual jathra. It is his case that they are unnecessarily interfering and therefore they have to be restrained from interfering with his right to perform pooja and conduct of annual jathra. An interim injunction was granted by the learned Judge ex parte on 22-1-1991. Defendants entered appearance and took several adjournments without filing any objections whatsoever. In those circumstances, the learned Trial Judge made an interim injunction order earlier in his order dated 31-10-1992, thereafter the proceedings were adjourned from time to time. During the pendency of the proceedings, the petitioners-defendants filed objections to LA. I seeking for vacation of the injunction granted by the Trial court. In those circumstances, the learned Trial Judge made an interim injunction order earlier in his order dated 31-10-1992, thereafter the proceedings were adjourned from time to time. During the pendency of the proceedings, the petitioners-defendants filed objections to LA. I seeking for vacation of the injunction granted by the Trial court. The Trial Court, heard the parties and after hearing, the injunction was vacated and an order was passed directing the plaintiff and defendants to perform pooja and conduct the annual jathra to Ged-damma deity, Janginagaddi Village every year "by routine" until the disposal of the case in the order dated 13-3-1998. ( 3 ) ANOTHER suit came to be filed by the present petitioners in O. S. No. 28 of 1997 seeking an injunction against the present respondent 1-plain-tiff in O. S. No. 13 of 1991. An order on LA. I was passed rejecting the la. for injunction. ( 4 ) M. A. No. 6 of 1998 was filed aggrieved by the order passed in O. S. No. 13 of 1991 by the present respondent-plaintiff. The Appellate Court allowed the appeal, set aside the order dated 13-3-1998 passed in O. S. No. 13 of 1991. Aggrieved by the allowing of the appeal thereby denying the right to perform pooja and conduct of annual jathra by the appellant in terms of the order of the Munsiff, this revision is filed. ( 5 ) IT is noted that there are civil proceedings between the parties in the matter. Annual jathra is being conducted and large sums of money is being provided by the devotees to the temple as could be seen from the material on record. The Trial Court has essentially relied on the earlier proceedings for grant of "routine pooja" to either of the parties, in particular, the written statement filed by the respondent in this case and defendant in the earlier case in O. S. No. 17 of 1986 and O. S. No. 4 of 1988. The Trial Court rejected the case of want of jurisdiction on account of its earlier order as contended by the plaintiff. The Trial Court as mentioned earlier on the facts of this case, has allowed performance of the pooja in terms of the material averments made by the plaintiff in the earlier proceedings and granted the relief of "routine pooja" by the parties. The Trial Court as mentioned earlier on the facts of this case, has allowed performance of the pooja in terms of the material averments made by the plaintiff in the earlier proceedings and granted the relief of "routine pooja" by the parties. The Appellate Court has set aside the order essentially relying on the adoption deed and also the conduct of the petitioner herein. For the purpose of revision, it is necessary to refer the adoption deed in favour of the plaintiff, the written statement in O. S. No. 86 and O. S. No. 88 filed by the plaintiff, the resolution passed by the Jathra Committee in 1988 in addition to other material for disposal of this case. At the outset I must mention that it is rather unfortunate that the in-fighting amongst the pujaris to the suit has resulted in non-performance of the pooja regularly and also resulting in inconvenience and confusion in the mind of devotees. Be that as it may, let me consider as to whether the petitioner has made out a case for interference at my hands in this petition. ( 6 ) SRI Mahava Reddy, learned Counsel for the petitioners essentially contended that the Appellate Court is not justified in interfering with the discretionary order of the Trial Court. He further argued that the trial Court, after appreciating the material on record, has passed an equitable order in favour of concerned and said equitable discretionary order has been interfered with by the Appellate Court without holding that the order of the Trial Court is capricious or perverse as understood in law. He further argued that the Appellate Court has exceeded the jurisdiction in vacating the discretionary order of the Trial Court. It is his argument that without appreciating the material on record, the Appellate court, in a mechanical manner, has interfered resulting in injustice to his clients. He relied on the judgment of this Court in Iranagouda basanagouda Biradar and Another v Basanagouda Veeranagouda Bira-dar, to counter the argument of want of jurisdiction by the Trial Judge on account of the early order of injunction. In conclusion, he wanted me to reverse the order of the Appellate Court. He relied on the judgment of this Court in Iranagouda basanagouda Biradar and Another v Basanagouda Veeranagouda Bira-dar, to counter the argument of want of jurisdiction by the Trial Judge on account of the early order of injunction. In conclusion, he wanted me to reverse the order of the Appellate Court. ( 7 ) PER contra, Sri Veeresh B. Patil, learned Counsel for the respondents strenuously argued and contended that the Trial Court essentially failed to appreciate the material on record including the written statement filed in the earlier case. He relied on only a portion of it and any document has to be read as a whole and not in a piecemeal as held by the Trial Court. In support of this, he relied on Sk. Khadimul Hague and Others v Marai Dubey and Another and ILR 1995 Kar. 213 (sic ). He contended that the earlier order having become absolute, the Court has no further jurisdiction to vacate the absolute order without there being any changed circumstances. For this proposition, he relied on Laxmi devi v Dula Ram and Vokkaligara Sangha, Vishweswara Puram, Bangalore and Another v S. Pradeep. Lastly he submitted that at any rate there cannot be a third person who can perform the pooja and conduct the annual jathra in the absence of any material available on record. He concluded by saying that the Appellate Court, after appreciating the material on record, has rightly found fault with the order of the Trial judge. He wanted me to confirm the said order. ( 8 ) THIS matter was heard for several days. On account of the non-performance of the pooja, I passed an order on 5-11-1999 directing the parties, particularly the first petitioner and the plaintiff to perform the pooja by rotation i. e. , one week by the plaintiff and another week by defendant 1. The same was also conducted and was allowed to be continued till I pass my final order. I am glad to know that the same is being carried out without any disturbance whatsoever. ( 9 ) THE grant of injunction is well-settled. A plaintiff approaching the court has to make out a prima facie case in the matter of grant of injunction. The balance of convenience, irreparable injury are also to be considered at the time of grant of an injunction. ( 9 ) THE grant of injunction is well-settled. A plaintiff approaching the court has to make out a prima facie case in the matter of grant of injunction. The balance of convenience, irreparable injury are also to be considered at the time of grant of an injunction. The admitted facts in the case are that the plaintiff has a right to perform pooja which has not been denied even by the contesting defendants in O. S. No. 13 of 1991. The only question that requires adjudication is as to whether the plaintiff, in exclusion of other defendants, has an exclusive right to perform the pooja alone. The plaintiff contended that except himself, none has the right to perform the pooja. He traces his right by virtue of the adoption deed dated 6-3-1978. He also relies on other documents to contend that the defendants are to be excluded in the matter of performance of pooja. On the other hand, the defendants' case is that there are three branches who perform the pooja by rotation. For the said purpose, in the absence of any other material available, parties have relied on their respective contentions in the earlier proceedings. It is a fact that the defendant had earlier filed a suit in O. S. Nos. 86 and 88 in the very matter of performance of pooja of the very deity. In the said suits, the present plaintiff (defendant in that suit) has pleaded that the poojas are performed by turn and by rotation. The learned Judge, in the light of this essential material of earlier admission, has vacated the injunction thereby providing for "routine pooja" of contesting parties. The said order, in my opinion, is based on material on record. The written statement relied on by the learned Judge is of the year 1988 and the said reliance cannot be said to be in any way opposed to any law in the matter. In fact, in the absence of any other document available on record, the learned Judge had no option but to rely on the circumstances and contentions urged by the parties for considering the contention of the parties. After considering the learned Judge has rejected the exclusive pooja by the plaintiff and on the other hand, accepted the contention of "routine pooja". It cannot be said that the said order suffer from any infirmity whatsoever. After considering the learned Judge has rejected the exclusive pooja by the plaintiff and on the other hand, accepted the contention of "routine pooja". It cannot be said that the said order suffer from any infirmity whatsoever. On the other hand, after noticing all material and after considering the well-accepted principles of grant of injunction, the learned Judge has not only protected the interest of the plaintiff, but at the same time protected the interest of defendant as well relying on the very admission of the plaintiff and the resolution of the Jathra Committee. The said order cannot be said to be perverse or capricious as understood in law. The Appellate Court, in my opinion, has committed an error in interfering with the discretionary order of the Trial Judge. The appellate Court has essentially relied on an adoption deed in favour of the plaintiff. The Appellate Court failed to see that the original Ama-rappa s/o. Bhimappa had only three daughters that is Gaddemma, kallawwa and Dyamawwa. They are relatives as could be seen from the description in O. S. No. 28 of 1997. In the light of the averments in the present suit and averments in the earlier suits, the Appellate Court cannot set at naught a discretionary order by relying on the adoption deed itself. The adoption in favour of Gaddeppa can only protect the right of Amarappa and Amarappa, in the light of the material available on record, cannot be said to have any exclusive right for the purpose of injunction to perform the pooja. Therefore, the Appellate Court, in my opinion, has committed an error in disturbing the order of Trial Court relying on the adoption deed. The Appellate Court has committed an error in commenting the conduct of the petitioner in his order. It is seen that there are suits and counter-suits filed by the parties. Mere filing of suits by either parties does not by itself extinguish their right available to them in law in the matter of performance of pooja. That cannot be a ground to reject the order of the Trial Judge. The Trial Court has relied on, as mentioned earlier, admission in the written statement and also the resolution of the Jathra Committee. The Jathra Committee has noticed that the three branches are related by blood and they have a right to perform the pooja. That cannot be a ground to reject the order of the Trial Judge. The Trial Court has relied on, as mentioned earlier, admission in the written statement and also the resolution of the Jathra Committee. The Jathra Committee has noticed that the three branches are related by blood and they have a right to perform the pooja. An independent resolution of the Jathra Committee has some bearing on the facts of this case in the absence of any other material in the matter. Therefore, it cannot be said that the Trial Court was swayed away by the resolution as commented by the Appellate judge. The Trial Court, considering the nature of the case, the admissions in the earlier proceedings, the resolution etc. , has passed an equitable order ordering "routine pooja". The said order, as I mentioned earlier, cannot be said to be a capricious order warranting an interference by the Appellate Court. The Appellate Court, it is well-settled, cannot lightly brush aside the order of the Trial Court. In the case on hand, in my opinion, a well-considered order has been set aside by the learned Appellate Judge without proper appreciation of the entire material on record. The Trial Court cannot said to have committed any error apparent on the face of the record requiring interference in the matter. The Appellate Court proceeded to set aside the order of the Trial Court without proper appreciation. The admission in the earlier suit is a matter that goes against the respondent herein. The Appellate Judge's finding that such admissions are to be thrashed only in the trial, cannot be accepted. When there is an admission of parties, there is nothing wrong on the part of a Court to base a conclusion in an interlocutory matter. Therefore the order of the Appellate Court certainly requires an interference at my hands. Mr. Madhava Reddy is right in his submission that the Appellate Court, in the absence of any capricious exercise of power by the Trial Court, has interfered with an equitable order in the matter. ( 10 ) SRI Veeresh B. Patil, learned Counsel for the respondents however maintained that an absolute order cannot be interfered with by the court in the absence of any changed circumstances. The order sheet reveals that an ex parte order of injunction was granted on 22-1-1991 which was made absolute for want of objections on 30-10-1992. ( 10 ) SRI Veeresh B. Patil, learned Counsel for the respondents however maintained that an absolute order cannot be interfered with by the court in the absence of any changed circumstances. The order sheet reveals that an ex parte order of injunction was granted on 22-1-1991 which was made absolute for want of objections on 30-10-1992. It is thereafter the defendants have filed objections and argued the matter and an order was passed by the learned Judge. This very ground was raised before the Trial Court and the Trial Court, after relying on several decisions, has come to a right conclusion that the Court cannot be said to have no jurisdiction. This argument of Sri Patil, has to be rejected in the light of the judgment of this Court in Iranagouda basanagouda Biradar's case, supra. This Court has ruled that whenever an injunction order is passed, an application is to be made by the aggrieved party to vacate or modify the order of temporary injunction granted by the Trial Court. Since a remedy is available in terms of order 39, Rule 4 of the CPC, no appeal could be filed against an absolute order. In identical circumstances, when injunction was confirmed for not filing objections, this Court in the aforesaid judgment, has ruled that the remedy available to an aggrieved party is to approach the jurisdiction of the Court and file an application for setting aside the order under Order 39, Rule 4 of the CPC. That is exactly what has been done by the petitioners in this case. Therefore, this argument of absolute order coming in the way of petitioner cannot be accepted. The said argument is rejected. ( 11 ) SRI Patil, learned Counsel for respondents essentially and vehemently argued that the earlier statement assuming without admitting, is binding on the plaintiff. The said document has to be read as a whole. There cannot be any two opinions on this aspect. In fact, Mr. Patil took me through the pleadings between the parties. In the written statement filed in O. S. No. 17 of 1986 plaintiff in this case and the defendant in that case has mentioned in several places namely in para 4 "as per his turn" para 3 "as per routine this year" in para 4 again "as per routine". In para 9 this is what the plaintiff has stated. In the written statement filed in O. S. No. 17 of 1986 plaintiff in this case and the defendant in that case has mentioned in several places namely in para 4 "as per his turn" para 3 "as per routine this year" in para 4 again "as per routine". In para 9 this is what the plaintiff has stated. "when there are three pahlies in performance of pooja and rendering service to the deity Gademma and to perform yearly jathra of the said deity. The turn of the branch of Amarappa s/o. Bhimappa has been running now". Again in the written statement filed in O. S. No. 4 of 1988, in addition to contending the exclusive right, in paras 12 and 13 they have chosen the word "as per routine". In addition to this, the Jathra Committee has also passed a resolution in this regard. There also we find the word "pahle". The same has been accepted by the Trial Court for the purpose of considering the interim application. Mr. Patil, except saying that the document has to be read as a whole, has nothing more to say with regard to these admissions. Even reading the document as a whole, I find that there are admissions with regard to the term "pooja" (pahle pooja ). As mentioned earlier, there are three poojaris as mentioned in O. S. No. 28 of 1997. In fact, the learned Judge has drawn a tree to show how pooja of a third person has come into existence. Taking into consideration the totality of the circumstances, the contest of Mr. Patil that the contentions cannot be taken into proof, is untenable. A party who makes an admission has to suffer the consequence. It may be possible for him to give an explanation at the time of trial with regard to his admission subject to proof. Prima facie, when an interim application is considered, the Court is justified in relying on the admission for the purpose of an interim order. Therefore, the argument of Mr. Patil is not acceptable to me. The Appellate Court also does not say that the said admission is not binding on the plaintiff. On the other hand, the Appellate Court only says that the same has to be thrashed out at the time of trial. In the circumstances, this argument of Mr. Patil does not appeal to me. This argument is rejected. The Appellate Court also does not say that the said admission is not binding on the plaintiff. On the other hand, the Appellate Court only says that the same has to be thrashed out at the time of trial. In the circumstances, this argument of Mr. Patil does not appeal to me. This argument is rejected. ( 12 ) THE third argument of Mr. Patil is that assuming without admitting that the pahle is with regard to the plaintiff and Dyamanna. His contention is that Kallawwa does not get any right whatsoever. In this connection, one cannot, in fact refer to earlier admission of three pahles, the resolution, the family relationship etc. If all these materials are taken into consideration, it cannot be said that there are only two pahles as contended by Mr. Patil. Therefore, this argument does not appeal to me. The Trial Court, after careful consideration, has rightly come to a right conclusion in my opinion in ordering "turn pooja" and the said pooja has also been done in terms of the order of the Court for a couple of years. After my passing of the order also, the "turn pooja" was fairly successful and there are no complaints whatsoever. It is well-settled that while granting an equitable order, the Court also has to consider as to the greater hardship, suffered by the parties. A cardinal principle of greater suffering in the event of grant of injunction or refusal of injunction is also a test which requires consideration. If the learned Judge has not granted the "turn pooja" in favour of the present petitioner, the present petitioner would have suffered a greater hardship on account of denial of the pooja of the deity. In these circumstances, in my view, no case is made out by the plaintiff before the Appellate Court, for interference. The object of interlocutory injunction is to protect on account of violation of a right of a party. Mitigating circumstances are taken into consideration in an interlocutory application before the uncertainty of rights of either parties are decided. In this case, the Trial Court, in view of uncertainty of "exclusive pooja" has ordered "turn pooja" to avoid any injustice to both the parties. Such an order should not be interfered with by the Appellate Court without there being any compelling circumstances on the facts of each case. The suit is of 1991. In this case, the Trial Court, in view of uncertainty of "exclusive pooja" has ordered "turn pooja" to avoid any injustice to both the parties. Such an order should not be interfered with by the Appellate Court without there being any compelling circumstances on the facts of each case. The suit is of 1991. The suit relates to performance of pooja and performance of jathra which attracts large number of devotees. The poojas to the deity cannot be stopped on account of inter se rivalry between the poojaris. In these circumstances, to meet the ends of justice, I direct the learned Trial Judge to dispose of the entire suit on or before 1-4-2000. In between this period, the jathra is likely to be performed. No prejudice would be caused if the jathra is conducted in terms of the order of the Trial Court by "turn". This "turn pooja" has to come to an end on passing of the final order in the suit. ( 13 ) IN conclusion, I pass the following order. (1) The C. R. P. is allowed. (2) The order of the Appellate Court is set aside. (3) The order of the Trial Court is restored. (4) The pooja and the jathra has to be done as per the "turn" as understood by the parties. No costs. --- *** --- .