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2019 DIGILAW 2210 (RAJ)

Sheth Anandji Kalyanji v. State of Rajasthan

2019-08-19

DINESH MEHTA

body2019
JUDGMENT : DINESH MEHTA, J. 1. Feeling aggrieved of the order dated 29.5.2019, passed by the learned Additional District Judge, Kherwada, Udaipur (hereinafter referred to as the trial Court), the petitioners have approached this Court invoking its supervisory jurisdiction under Article 227 of the Constitution of India, alleging that the Court below has erred in passing the impugned order and rejecting petitioners' prayer to issue notice only to the defendants nos. 1 to 6. 2. Narrated in nut shell, the facts appertain to the present writ petition are that a representative suit, as provided under Order I Rule 8 of the Code of Civil Procedure, 1908 came to be filed seeking declaration that 'Rishabhdev Jain Temple', also known as 'Keshariya Nathji Jain Temple' is a 'Shwetambar' Jain Temple. Apart from such declaration, other ancillary reliefs were also claimed by the petitioners who converged as plaintiffs while impleading respondents nos. 1 to 8 as defendants. 3. An application for leave of the Court as required under Order I Rule 8 of the Code of Civil Procedure was filed alongwith an application seeking service of notice by way of public advertisement. In pursuance of these applications, an order came to be passed by the trial Court on 22.5.2019, whereby leave to maintain the suit was granted. It was also ordered that one notice be published in a newspaper having nationwide circulation and another in Rajasthan Patrika/Dainik Bhaskar having its circulation in the State. 4. Consequent to the order dated 29.5.2019, a notice was prepared by the Court concerned, inter alia, inviting all the persons having interest in the subject matter, cause of action and reliefs sought in the suit. It is noteworthy that the proposed notice prepared for publication in terms of the order dated 29.5.2019, contained not only the names of all the plaintiffs and the defendants, but also the reliefs claimed and a short description of the dispute/issue involved. It is noteworthy that the proposed notice prepared for publication in terms of the order dated 29.5.2019, contained not only the names of all the plaintiffs and the defendants, but also the reliefs claimed and a short description of the dispute/issue involved. It will not be out of place to reproduce the relevant extract of the order dated 29.5.2019 and the contentious part of the notice, feeling aggrieved whereof, the petitioners have approached this Court: ^^oknhx.k vius [kpsZ ij vkns'k 01 fu;e 08 lhŒihŒlhŒ ds rgr okn dh fo"k;oLrq] okndkj.k ,oa vuqrks"k ds lEcU/k esa fgr j[kus okys lHkh fgr /kkjdksa dks uksfVl Ádk'ku dh rkjh[k ls ,d ekg esa viuk i{k U;k;ky; esa j[kus dk volj ds ckcr ,d uksfVl jk"Vªh; Lrj ds nSfud lekpkj i= esa rFkk ,d uksfVl jktLFkku jkT; Lrj mn;iqj ds _"kHknso {ks= ds fy;s Hkh Ádkf'kr gksus okys nSfud lekpkj i= ;Fkk jktLFkku if=dk@nSfud HkkLdj esa Ádkf'kr djok;sA mDr vkns'k dh ikyuk ds v/;k/khu ;g okn ntZ jftLVj bZOrnk;h nhokuh gksA** Extract of the notice under Order I Rule 8 CPC: ^^;g U;k;ky; tkŒnhŒ vkns'k 1 fu;e 8 lhŒihŒlhŒ ds rgr okn dh fo"k;oLrq okn dkj.k ,oa vuqrks"k ds laca/k esa fgr j[kus okys lHkh fgr/kkjdksa dks bl uksfVl ds Ádk'ku dh frfFk ls 1 ekg ds Hkhrj viuk i{k@mRrj bl U;k;ky; esa djus dk volj nsrh gSA bl okn dh lquokbZ dh vxyh frfFk 26-07-2019 gSA** 5. Learned counsel for the petitioners oppugning the highlighted part of the notice under Order I of the Code of Civil Procedure contended that the Court below has erred in preparing the notice in the manner it has been done and inviting all the persons, irrespective of the fact whether they are defendants or not. 6. Mr. LR Mehta, learned counsel for the petitioner narrating the chronological events submitted that Hon'ble the Supreme Court vide its judgment reported in (1974) SCC 500 (State of Rajasthan Vs. Sajjan Lal Punjawal) and in (2007) 10 SCC 528 (Deewan Singh Vs. Rajendra Prasad Ardevi) has already settled the core issue and held that the Temple in question is a Jain temple and not Hindu temple, as had been alleged by the Devsthan Department and the sects other than Jains. Inviting attention of the Court towards the order dated 26.7.2010, Mr. Rajendra Prasad Ardevi) has already settled the core issue and held that the Temple in question is a Jain temple and not Hindu temple, as had been alleged by the Devsthan Department and the sects other than Jains. Inviting attention of the Court towards the order dated 26.7.2010, Mr. Mehta pointed out that Hon'ble the Supreme Court had permitted the petitioners to file a civil suit for declaratory relief, and consequential reliefs as regards the controversy whether it is a Shwetambar temple or Digambar temple. 7. Highlighting the observations made by the Supreme Court in the aforesaid order dated 26.7.2010, it was contended that in the present suit, which has been filed by the petitioners, the interested and necessary parties are only plaintiffs and defendants representing Shwetamber and Digambar sects respectively of the Jain community and if the order as passed by the trial Court on 29.5.2019 is allowed to sustain and the notice as prepared are permitted to be published, it will open a Pandoras box and give rise to a fresh chain of the litigation. Everyone, will then, intermeddle and intervene in the suit proceedings despite having no right or interest, was the concern shown by Mr. Mehta. He argued that the petitioners have impleaded Digambar Jain Sangh; its President; Treasurer; General Secretary etc., being the representatives of Digambar faith besides State and Devasthan Department and the notice should therefore, go to them only, so that they alone are permitted to participate in the proceedings. 8. Learned counsel further contended that the petitioners are 'dominus litis' of their case and no other person can be impleaded or even invited to join as a party, if the plaintiffs do not wish to proceed against such person(s). A number of judgments were cited by the learned counsel for the petitioners to drive home the point that petitioners - plaintiffs are the best judge to decide as to whom they wish to implead as defendant(s). 9. Learned senior counsel alongwith Mr. Ashok Jain argued that the notice as prepared and issued for publication is not in accordance with law. He argued that the impugned notice will enlarge the scope of the suit and expand its contours to an unmanageable expanse, and the whole purpose of the suit would be frustrated. 10. 9. Learned senior counsel alongwith Mr. Ashok Jain argued that the notice as prepared and issued for publication is not in accordance with law. He argued that the impugned notice will enlarge the scope of the suit and expand its contours to an unmanageable expanse, and the whole purpose of the suit would be frustrated. 10. I have heard learned counsel for the petitioners at length and perused the impugned order; the contentious notice and the available material. 11. There cannot be any quarrel qua the proposition, that the plaintiff is 'dominus litis' of his case. But such principle is not of universal applicability and it cannot be applied with the same rigidity, when it comes to a representative suit, governed by the provisions of Order I Rule 8 of the Code. In such suit, since the interest of large number of persons and concern of a variety of sects of the society are involved, hence, not only the persons, who are effected by the relief(s) claimed, but also the persons having concern with the suit or knowledge about the issues/questions involved in the suit can take part in the proceedings. However, he/she has to apply before the Court to hear his/her view point and concern, albeit after showing likely impact of the relief claimed or effect of the order likely to be passed in such suit, so as to enable the Court to ascertain as to whether such person(s) should be impleaded as plaintiff or defendant or heard as an expert or treated/summoned as witness. 12. Indisputably, the Hon'ble Supreme Court has settled the issue that the temple in question is not a Hindu temple and it is a Jain temple by its authoritative pronouncements. It is also undeniable fact that by the order dated 26.7.2010, Hon'ble the Supreme Court has permitted the parties to file a suit for declaration and consequential reliefs, as to whether Rishabhdev Temple or Keshariya Nathji temple is a Shwetamber Jain temple or Digamber Jain temple. 13. It is also undeniable fact that by the order dated 26.7.2010, Hon'ble the Supreme Court has permitted the parties to file a suit for declaration and consequential reliefs, as to whether Rishabhdev Temple or Keshariya Nathji temple is a Shwetamber Jain temple or Digamber Jain temple. 13. But then, it is one thing to say that the question to be determined by the Civil Court in furtherance of the suit so filed by the plaintiffs is, as to whether the temple in question is a Shwetamber temple or a Digambar temple and another thing to contend that persons other than the parties impleaded from Shwetamber or Digambar sect are not interested and, hence, cannot be called for participation. 14. It is true that the core question has been finally adjudicated and determined by the Hon'ble Supreme Court, that it is a Jain temple. But whether it is a Shwetamber temple or a Digamber Temple is yet to be determined by the trial Court. For the purpose of determination of such issue, particularly when the suit in question has been filed in representative capacity under Order I Rule 8 of the Code, the trial Court cannot confine or restrain any person out of the arena of the parties from appearing before the Court and put forward its stand in order to arrive the Court to determine the question posed before it. 15. This Court is of the opinion that even a stranger or a person out of the Shwetamber or Digambar sects can also come and prove that Rishabhdev temple is a Shwetamber Temple or a Digambar Temple, as the case may be. The caste, creed or religious faith, whether the applicant is a Shwetamber or Digambar becomes irrelevant. The moot question in such event is as to whether the person(s) can assist the Court in arriving at the conclusion or he can throw some light on the issues before the Court. 16. Neither the plaintiffs can claim themselves to be the repository of all knowledge and information about the fact that the temple in question is a Shwetambar temple nor can they confine the number or ambit of persons who can have interest, concern or wisdom to assert fact that the temple in question is not a Shwetamber temple. 16. Neither the plaintiffs can claim themselves to be the repository of all knowledge and information about the fact that the temple in question is a Shwetambar temple nor can they confine the number or ambit of persons who can have interest, concern or wisdom to assert fact that the temple in question is not a Shwetamber temple. The Court can permit every single person who in its opinion is capable of clearing the haze over the issues, as to whether the temple in question is a Shwetamber or a Digambar Jain temple. 17. In considered opinion of this Court, the defendants nos. 4 to 8 arrayed as the defendants cannot be said to be the authorized persons or a body of individuals representing the entire Digambar sect to canvass and convince that the subject temple is a Jain Digambar temple. 18. The notice prepared or issued by the trial Court has not conclusively decided as to who shall be the parties to the suit. As a matter of fact, it is only an intimation, if not invitation, to all and sundry, who feel connected or concerned with the issues, so that they can move appropriate application and seek their impleadment. 19. It is only on receipt of intimation by way of the notice, that any person for whose benefit the suit has been filed or any person who wants to defend the suit can apply to the Court to be impleaded as a party to the suit. It will not be out of place to reproduce the provisions contained in sub-rule (2) and (3) of Rule 8 of Order I of the Code of Civil Procedure: "(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or an other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit." 20. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit." 20. Upon a bare reading of the above statutory provisions, this Court is of the considered opinion that the question as to whether a particular person is a necessary or requisite party or whether he should be given audience, will arise only after issuance or publication of the public advertisement or notice in the newspaper. It is only after the publication of the notice, when a person can file an application seeking impleadment with requisite material, clearly stating as to how he can assist the Court or how he is effected by the issues involved and reliefs claimed in the suit. 21. The notice as prepared by the trial Court is absolutely in accordance with law and in sync with the statutory provisions that are contained in Order I Rule 8 of the Code. The trial Court has rightly invited all the persons having interest in the subject matter, cause of action and reliefs claimed in relation to the suit. 22. The petitioners' proposition rather suggestion that the trial Court ought to have issued the notice in the following form, is perse untenable and against the spirit of the statutory provision. It will not be out of place to reproduce relevant parts of the notices, which the petitioners wanted the Court to issue; vis-à-vis the notice impugned in the present petition for writ: Proposed by the Petitioners Impugned Notice Proposed by the Petitioners Impugned Notice ;g U;k;ky; tkŒnhŒ vkns'k 1 fu;e 8 lhŒihŒlhŒ ds rgr okn dh fo"k;oLrq] okn dkj.k ,oa vuqrks"k ds laca/k esa fgr j[kus okys tSu 'osrkEcj ,oa fnxEcj leqnk; ds lHkh fgr/kkjdksa dks bl uksfVl ds Ádk'ku dh frfFk ls ,d ekg ds Hkhrj viuk i{k@mRrj bl U;k;ky; esa djus dk volj nsrh gSA bl okn dh lquokbZ dh vxyh frfFk-------------gSA ;g U;k;ky; tkŒnhŒ vkns'k 1 fu;e 8 lhŒihŒlhŒ ds rgr okn dh fo"k;oLrq okn dkj.k ,oa vuqrks"k ds laca/k esa fgr j[kus okys lHkh fgr/kkjdksa dks bl uksfVl ds Ádk'ku dh frfFk ls 1 ekg ds Hkhrj viuk i{k@mRrj bl U;k;ky; esa djus dk volj nsrh gSA bl okn dh lquokbZ dh vxyh frfFk 26-07-2019 gSA 23. If the notice prepared by the Court is compared in juxtaposition with the notice proposed by the petitioners, this Court has no doubt that the proposed notice sought to be issue by the petitioners would confine the participation to the plaintiffs and defendants only, which will definitely defeat the very purpose of the provisions contained in Order I Rule 8 of the Code, whereas the impugned notice will ensure audience to all relevant and necessary parties. 24. As an up shot of the foregoing discussion, this Court unhesitantly holds that there is no infirmity or illegality, much less error of jurisdiction in the impugned order dated 29.5.2019 and the notice (Annex. 2) prepared by the trial Court for publication in the newspapers. 25. The writ petition is, thus, dismissed. 26. As a consequence of dismissal of the writ petition, the stay application also stands dismissed.