GANAPATHINARAYAN SABHAHIT Vs. SHIVARAM NARAYAN BHAT

JUDGEMENT

(1.) This is defendants' civil revision from the judgment and order dated January 17, 1995 in Miscellaneous Appeal No. 2 of 1995 delivered by Sri M.S. Rajendra Prasad, District Judge, Karwar dismissing the defendants' appeal and confirming the judgment and order dated 22nd December, 1994 delivered by Sri S. Mariyappa Civil Judge, Karwar allowing the plaintiffs' application filed under Order 39, Rules 1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure in Shivaram and Others v Ganapathi and Others , restraining the defendant, their men, agents and servants from interfering with the plaintiffs' enjoyment of their rights and benefits as archakas of Sri Vinayak Dev Temple, Idagunji in Honnavar taluk and directing them not to interfere with the plaintiffs' right to offer pooja, viniyogas, performance of ganahoma, vratas and other rituals as per tradition and customs of the temple as well as restrain them from employing the services of any other person/priest to perform the above functions or duties till the disposal of the suit.

(2.) The facts of the case in brief are - that the plaintiffs-present opposite party/respondent filed the suit for decree of declaration declaring the plaintiffs i.e., the present respondents to be the hereditary archakas of Sri Vinayak Dev Temple in Idagunji. The plaintiffs further claimed the relief that the said right of hereditary archakas is in the nature of property carrying emoluments as they are in consonance with the legal character to officiate as upadivant priests. Plaintiffs further claim that the legal character of the priest, referred to in relief 'A' as based on upadhi rights, is in the nature of property in favour of the plaintiff-respondents and defendants have no right to terminate the said archaka upadis of plaintiff or their customary right of priesthood. The plaintiffs have claimed a declaration or a declaratory decree to the effect that the order of termination issued by the defendants on 21-9-1994 is illegal, void and contrary to the principles of natural justice. The plaintiff claimed the decree for injunction restraining the defendants from interfering with the rights of the plaintiff in performing their duties as archaka and for incidental reliefs. As per the plaint allegations, the plaintiffs claim themselves to be the priests-archakas of the temple in question viz., Sri Mahaganapathi Vinayak Temple of Idagunji. The plaintiffs allege that since the installation of the deity, the plaintiffs have been acting as archakas of the deity institution and also the purohit of devotees seeking divine grace and blessings by conduction of seva, vratas, homa and other rituals. The plaintiffs' case is that the plaintiffs and their ancestors have been officiating and acting as the manager and priest of the temple and that after the advent of the Bombay Endowment Act the trustees were got appointed and among the trustees one used to be the member of the family of the plaintiff. The plaintiff alleged that till the end of last century from the original consecration the plaintiffs family has been acting in dual capacities i.e., as archaka-purohits on the spiritual side and custodian managers on the temporal side and officiated as shebaits. The plaintiffs allege that the branches of plaintiff 1 on one side and plaintiffs 2 and 3 on the other have made arrangement of sharing their duties called poojapali and in accordance with that arrangement plaintiff 1's branch gets six months while plaintiffs 2 and 3 enjoy the poojapali for another six months. They have stated that the right to officiate as archakas under upadi with emoluments attached to it corresponds and commensurates with the vritti of purohit acting as a link between devotee and deity soliciting its grace and blessings. The plaintiffs further alleged that ancestors of plaintiff were not appointed by an authority and when the first consecration took place there were no trustees. According to the plaintiffs' case, trustees or every manager of the properties of the trust undertakes to keep sanctity and decorum of the temple which comes within the ambit of management of the properties. The plaintiffs further alleged that the manager of the endowment cannot arrogate to himself the power of removing a hereditary archaka having proprietory nature of right. The archaka could only be removed after filing a suit and after obtaining a decree from the Court. The plaintiffs/respondent-opposite parties asserted that plaintiffs have been holding the office of archakas and poojariship in their own right and not at the pleasures of the defendant. The plaintiffs further allege that the defendants had no power to dismiss or remove or terminate the plaintiffs from the office of archakas. The plaintiffs further allege that the expression administration of management endowment does not carry within the scope the power to dismiss the archakas. Alternatively the plaintiffs have asserted that if the defendants have any power to dismiss or terminate the archakaship that could never be done without following the principles of natural justice and without issuing show-cause notice and framing of charges and without conducting the enquiry by an impartial agency. The plaintiff has maintained that the emoluments of upadi vritti consisted of tastik which fetch Rs. 737- (39-6-0 and 33-10-0) per year to two families. The plaintiff used to get half share in phalavali and whole of the padiakki received by the endowment. Plaintiffs claim that they are entitled to get one anna in a rupee worth of panchakajjaya pooja performed at the request of devotees. Giving of dakshina depended upon the volition of the devotees.'The plaintiffs case is that prior to 1950 the priests themselves used to collect dakshina for panchakajjaya naivedya in addition to half coconut and the coconuts offered thereafter, trustees undertook to supply panchakajjaya and to collect the value from the devotees and the share in offering one anna was per one rupees were shown separately in the accounts of the priests and given to them. The plaintiffs' case is that the defen- dants acquiesced with the plaintiffs right which has been in the nature of property. Plaintiffs asserted that archakaship is not a job or vocation but a hereditary religious office which archakas has to discharge ungrudgingly. They stated that the religious office of archakas and the act of officiating over that office has been a vritti with the emoluments attached to it, and its nature is of that heritable and partible property which carried the status of legal character. The plaintiffs case has been that the emoluments received by the archakas is not the income of the temple, instead they are part of their return for officiating as priest. The plaintiffs allege that when archakas objected to the niyamavali of the trustees, so the trustees developed the hos- tility against the archakas and thereafter the issue became a matter of prestige. The plaintiffs mentioned in their plaint that in August 1975 the trustees decided to implement their own unilateral niyamavali and as per the same they alleged to have fixed certain cess for pooja and viniyogas includes all dakshinas payable to archakas which was against the custom and concept of archakaship. The plaintiffs case is that the emoluments received by the archakas represented not only the property returns but they represented the emoluments of purohit vritti as well and officiating priest is entitled to receive the emoluments. The plaintiff further alleges that plaintiffs 1 and 2 and the an- cestors of plaintiff 3 filed a suit in the Court of Munsiff, Hon- navar as Original Suit No. 17 of 1976 for a decree of permanent injunction against trustees and for accounts of emoluments and other articles received from devotees directly and also for recovery of amount collected by them in that regard. The plain- tiffs also prayed for a direction to the effect that the trustees should not distribute the emoluments to others who were uncon- nected with archakaupadi. The aforesaid Original Suit No. 17 of 1976 was dismissed for default on 26th May, 1988 and according to the plaintiff the application filed for restoration under Order 9, Rule 9, C.P.C. and simultaneously the plaintiff also filed an appeal against the order of dismissal. According to the plaintiffs case the suit was restored by the Appellate Court and the suit having been restored in an appeal by the Appellate Court, the miscellaneous application for restoration was closed. The trus- tees according to the plaintiff, preferred the appeal before this Court i.e., the High Court as Miscellaneous First Appeal No. 11 of 1989 against the judgment of the first Appellate Court and the High Court allowed the said appeal with a direction that plain- tiffs were at liberty to pursue their application which they had filed earlier under Order 9, Rule 9. The plaintiffs case is that earlier application was closed which was numbered as 5 of 1988. So to reopen that earlier application, the plaintiffs filed another application which was numbered as Miscellaneous Case No. 6 of 1989. The plaintiffs further alleged that Miscellaneous Applica- tion No. 5 of 1988 came to be dismissed on the ground that there was no justification for plaintiffs to remain absent when the case i.e., Suit No. 17 of 1989 was fixed for hearing. According to the plaintiffs they challenged the order of the Munsiff rejecting Order 9, Rule 9 application. The plaintiffs case is that after the dismissal of application for restoration, the trustees did develop an intention to eliminate the plaintiff from archakaship itself and to bring in their own henchmen. The plaintiffs case is that the plaintiffs have been served with a notice on 21-9-1994 allegedly terminating the services of the plaintiffs from archakaship. It is alleged that the plaintiff and their people were harassing the administrative staff etc., and that they were not performing their duties as required. Many other allegations were also made therein like that. Plaintiffs case is that on 28-9-1994 a defamatory publication was published in Samyuktha Karnataka Daily by defendant 1 suggesting that plaintiff were misappropriating the amounts sent to them by devotees for the purpose of seva and according to plaintiff this allegation was a new one and has been absent in the notice of termination. The plaintiffs allege the termination of the plaintiffs has been made with mala fide intention of the defendants, to deprive the plaintiffs of their right by hook or by crook. The plaintiffs further alleged that at no point of time plaintiffs ever indulged in any type of illegal and undesirable activities that has been ascribed to them. They claim that they were never deficient in their performance of the duties and all the acts and omission and commission are cooked up ones. Plaintiffs further alleged that at no point of time they were appraised of the so-called deficiencies nor were they called to answer the said allegations which have been levelled against them in the notice. The plaintiffs case is that the termination order had been made unilaterally and it has brought about almost a catastrophe in the lives of the archaka families and their services could not be done away with or terminated with such allegations without giving them due reasonable and proper opportunity. The plaintiffs claim that as the act of the defendants had cast clouds on the lives of the plaintiff and as the act of termination or doing away of the plaintiffs from the archakashipupadi of the temple has been in violation of principles of natural justice and has got tendency to deprive them of their life honour in society and of their hereditary right of office and property in that sense so they were filing the suit. The plaintiffs asserted that they were continuing to perform their respective poojas and viniyogas as per their respective turns in spite of termination order passed and issued by defendants and that plaintiffs apprehend that defendants may take recourse to other coercive methods of interfering with or of preventing the plaintiffs from exercising their right above. So the plaintiffs have been compelled to take recourse to file suit of nature of suit for declaration of their rights and for injunction as cause of action had arisen and the plaintiffs filed the suit for the reliefs mentioned above.

(3.) Along with the plaint allegations, the plaintiff-respondents filed an application under Order 39, Rules 1 and 2, C.P.C. read with Sections 94 and 151 of the Code of Civil Procedure along with an affidavit thereto. To that application dated 5-10-1994, defendant 1 filed objection statement. The affidavit to their application shows that the plaintiffs have verified the contents of paras 1 and 2 of the plaint as annexure thereto to be true to his knowledge, information and belief. In the affidavit it has been stated that the plaintiffs had been performing the rights and duties attached to the office of archakaupadi in Vinayak Dev Temple and the trustees by their notice dated 21-9-1994 terminated the plaintiffs archakaship unauthorisedly, illegally and against principles of natural justice. It is further been asserted in the affidavit that if termination is allowed to have its effect, it will destroy the plaintiffs right of archakaship. The plaintiffs will be rendered helpless and will be deprived of their right to perform the pooja and viniyogas in the temple as well as will be deprived of their source of livelihood on one hand and on the other it will result in total chaos and harassment to the devotees. The plaintiffs recited that they hope to succeed in the suit and the trustees are trying to implement their termination order by bringing priests from outside and making them to do parallel things in the worship of deity and if they are allowed to continue in their acts of omission and commission in this regard preventing the plaintiffs from performing their obligations as priests, it would be causing irreparable loss and damage so the application under Order 39, Rule 1, C.P.C. On the contrary, in the objection statement the defendant 1 has taken the plea to the effect that plaintiffs have not come with clean hands and have suppressed material facts relating to the management of temple trust, services, rendered, public complaints, breach of peace and also other litigations disposed of and also pending in the Criminal Court and in Civil Courts and as such they are not entitled to any discretionary relief of the nature of temporary injunction of the like. The defendant had taken a plea in their objection statement dated 7-10-1994 that no prima facie case has been made out nor the balance of convenience lies in plaintiffs favour on the date of the institution of the suit and if temporary injunction order is granted, the order may create law and order situation problem and at this stage may affect the entire public trust and interest of public at large. The granting of interim relief as claimed in the present case, the defendant alleged will have the effect of granting the final and full relief as claimed in the suit, and the interest of public trust will be jeopardized. The defendants further alleged in their affidavit that trustee's personal interest is not involved but the very fact involved is the interest of public temple trust Sri Vinayak Dev the affairs of which are fully managed by for all purposes by the trust committee and so temple trust committee will be responsible for that and for acts of omission and commission of archakas and other people will hold the trust and trustees to be responsible and not the archakas other servants of public trust. That as such granting of any order as claimed as interim order which is in the nature of final order has tendency to cause adversely to temple and temple trust as well to devotees. In paragraph 5 the defendant alleged that it is nowhere noted that archakas have right in a temple or temple property. The plaintiffs are not entitled to injunction in respect of matters in the temple. That the trust in question is registered in Public Trust Register as Vinayak Dev in Idagunji and all properties of the temple vest in the trust and all its affairs are governed by Bombay Public Trust Act. The defendant pleaded in their objection that if the plaintiff wanted to agitate their right, the remedy of the plaintiff was to agitate the matter either before the Charity Commissioner, Belgaum or in District Court, Karwar but so far as the Trial Court has been concerned, it has been alleged it has no jurisdiction to entertain the suit and so it was mentioned in the application that the prayer for temporary injunction was not entertainable for want of jurisdiction. It was further alleged that there were many complaints which were received by the temple trust from the public against the plaintiffs' right from 1975 and when too many complaints were received in writing, temple trust started appointing priests to do pooja and viniyogas in the temple. That having felt aggrieved the plaintiff filed a suit claiming hereditary right and right to pooja viniyogas as archaka and claimed emoluments and accounts thereof in the Court of Munsiff, Honnavar, numbered as Original Suit No. 17 of 1976 which was dismissed by the Munsiff. In their suit no interim relief was sought. It was also stated that after dismissal of the suit a Regular Appeal No. 44 of 1988 was filed and the matter had gone up to the High Court and ultimately the matter was agitated by Miscellaneous Appeal No. 5 of 1988. It was rejected finally on 17-9-1994. According to the defendant, plaintiff also filed Original Suit No. 344 of 1989 against other employees who were appointed to perform some part of pooja and viniyogas and sought temporary injunction against them. That also came to be finally rejected on 13-7-1990 from which the plaintiffs filed Miscellaneous Appeal No. 30 of 1990 which is pending. The defendants asserted that the temple committee had no other alternative or option but to take an extreme step for terminating the services of archakas i.e., the plaintiff and trust committee finally took the decision in the best interest of the temple or the public trust by its resolution dated 20-9-1994 and in pursuance thereof the services of the plaintiffs were legally and lawfully terminated with effect from 21-9-1994. The defendants allege, trustees felt no confidence in the plaintiffs for the valid reasons and ultimately terminated the service as mentioned above and it was the order of termination simpliciter, and there was no question of issuing any show-cause notice as the plaintiffs did not improve themselves for years together in spite being cautioned and defendants did not have any option except terminating the plaintiffs service by simple notice of termination and they were terminated accordingly. The power to terminate did vest in the trustees. The plaintiffs have asserted that Umesh Gajanan Bhat well qualified archaka had been appointed by the trustees and he has been discharging duties of archaka from September 24, 1994. This fact was duly published and entire community devotees expressed satisfaction. As devotees the plaintiffs are allowed to worship Lord Vinayak as any section of public is allowed to worship Sri Vinayak Dev. The arrangements made by the plaintiff and family of the plaintiff are in no way binding on the temple trust. The defendants asserted that plaintiffs were not working as archakas of the temple trust since after termination of service and the question of considering the grant of relief of temporary injunction does not arise. The defendants further submitted that if any temporary injunction order is granted to retain the plaintiffs, that may cause difficulties for the plaintiffs to manage the day to day affairs of the trust. That the plaintiffs and their family members were taking the law in their own hands and that they are always disturbing the peace and sanctity of the temple. That if the application for interim order is rejected, no prejudice will be caused to the plaintiffs. On the contrary, the temple trust will be affected if the application is allowed and thereby entire public will be put to inconvenience. With these allegations defendants (revision applicants) asserted that the application for temporary injunction deserves to be dismissed.