SRI HATHIYA RAM MATH Vs. DISTRICT JUDGE GAHZIPUR

JUDGEMENT

(1.) SUBJECT -matter of impugnment in the instant petition is the appellate order dated 25.11.97 by which the learned District Judge, Ghazipur set aside the order dated 29.9.1997 passed by the Civil Judge (Sr. Division) Ghazipur, thereby interdicting the defendant herein impleaded as respondent No. 3 by means of a temporary injunction from interfering with the functioning of the second petitioner - -Sri Swami Baikrishna Yati Maharaj as Mahant of the Math known as Sri Hathiya Ram Math, district Ghazipur and further from damaging the Math -property in any manner whatsoever.

(2.) THE suit from which stems the instant petition was instituted by the petitioners for the relief of a permanent injunction refraining the defendants from interfering with the functioning of the plaintiff -petitioner No. 2 as Mahant of Sri Hathiya Ram Math, Ghazipur and its sub -altern Maths described at the foot of the plaint and from damaging movable and immovable properties of the Math in any manner whatsoever. Facts leading upto the filing of the suit, have been delineated in the impugned order and I think it unnecessary to swell this judgment by recapitulating all those facts all over again. However, a brief resume of the relevant facts necessary to unfold the legal controversy in the instant petition is that Pavahari Swami Bal Krishna Yati was appointed as Mahant of the Math by the quantum Mahant Pavahari Swami Vishwanath Yati in 1954 and the defendant Bhawani Nandan Yati assumed the mantle of Mahant on 23.2.96 and on 21.3.96, a 'Ntyuktt Patra. Wasiyatnama' was authenticated by execution and registration in that regard. The defendant -respondent No. 3 is said to have been unseated as Mahant of the Math on 1.5.1997 owing to his alleged blasphemous utterances profaning his own Guru - -the petitioner No. 2 ; his proclivities into sinful activities subversive of the recognised and time -tested traditions of the Math ; leading an impious life by consorting with anti -social elements and his deviating from Sanyas Dharm as delineated in the plaint. Thereafter, the petitioner No. 2 was consecrated Mahant of the Math second time on 10.5.97. The suit was instituted inter alia on the allegations that the defendant though removed from the office of Mahant, had been intruding himself into the functioning of the plaintiff -petitioner No. 2 as Mahant of the Math. An application for temporary injunction attended with an affidavit, was also filed, it was resisted by the defendant -respondent No. 3 Inter alia on the ground that his alleged removal suffered from the blemish of illegality and was void. The trial court, upon appraisal of the materials on record, opted in favour of grant of temporary injunction on the reasonings, inter alia, that the plaintiffs succeeded in making out a prima facie case for grant of temporary injunction ; that refusal to grant temporary injunction could visit upon the plaintiffs with irreparable injuries ; and that the balance of convenience leaned in favour of the plaintiffs. On appeal under Order XL1II, Rule 1. C.P.C., the District Judge upturned the order passed by the trial court and it is in this perspective that the plaintiffs have landed up in this Court by means of the present petition, challenging the legality of the order passed by the District Judge.

(3.) FOR proper appraisal of the contentions raised at the bar, it is necessary to ascertain the true nature of an order granting temporary injunction and the scope and ambit of appellate power in an appeal under Order XLIII, Rule 1, C.P.C, arising out of an order granting temporary injunction. As observed by the Supreme Court in Wander Ltd. v. Antox India (P.) Ltd.,, 1990 (Su) SCC 727 ; "Usually, the prayer for grant of interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged infringement are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well -established principles of an administration of this form of interlocutory remedy which is both temporary and discretionary." The Supreme Court in that case has adumbrated the following principles governing exercise of appellate power.