GURUSWAMY Vs. GAJADANDAIAH AND ORS.

JUDGEMENT

(1.) Defendant No. 2 in Original Suit No. 30 of 2006 on the file of Civil Judge (Junior Division), Lingsugur, has filed this petition challenging the order passed by the learned Judge on IA.I filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.

(2.) The respondent No. 1 who is the plaintiff, filed the said suit OS No. 30 of 2006 for declaration and injunction. The application came to be partly allowed by the trial court on 14th March 2014 observing that both the defendant and plaintiff are restrained from sitting in the chariot in the jaatra mohotsava for the present year. The learned judge further directed the Temple Committee headed by the Assistant Commissioner to conduct the jaatra mohotsava by installing the idol of Lord Amareshwar in the chariot.

(3.) The petitioner -defendant No. 2 has taken a ground that the said order is an error in the eye of law and also on fact. The suit filed by the respondent No. 1 -plaintiff is for declaration and injunction declaring that he has got right to be declared as peetadhikari of the said math. It is also the case of the defendant No. 2 that he is the peetadhikari. In the backdrop of the said disputed claim between the parties, the Court below committed an error is his submission. According to the petitioner, the learned judge has failed to decide as to who is the peetadhiari for Devarabhupur Math. He submits that the learned Judge, at paragraph 10 of the order, has observed that "defendant No. 2 claim to be peetadhikari, and therefore, there is a dispute as to who is the peetadhikari and no decision can be arrived at this stage". Similarly, in paragraph No. 11, in the last four lines, it is further observed "hence, it cannot be concluded that the plaintiff is the peetadhikari and conducting the jaatra mahotsava, similarly it cannot also be said that defendant No. 2 is the peetadhikari of the math". When such is the opinion expressed by the learned judge, he should have dismissed the application IA.I filed by the respondent No. 1 -plaintiff for temporary injunction; instead he has prevented both the plaintiff and the defendant, and however, directed the Assistant Commissioner to conduct the jaatra by keeping the idol of Lord Amareshwar in the chariot. When the rights of the parties are not established, then granting injunction on the basis of the same is an error in law is his submission. In support of his submission, the learned counsel referred the judgment reported in the case of J.C. Dias v/s. J.T. Alphanso reported in : AIR 1934 Sindh 1980 wherein at paragraph 5 of the judgment it is held thus: