K MURUGAPPA MUDALIAR Vs. KUPPUSWAMI MUDALIAR

JUDGEMENT

(1.) This is an application to revise an order under Section 144, Criminal Procedure Code, made by the Stationary Sub-Magistrate, Conjeeveram in respect of the performance of Soorasamharam festival before the Mohambariamman Temple in Ayyampet, a suburb of Conjeeveram. The festival comes off on the 18 of this month and in view of the fact that the petitioners had been restrained by similar orders in the preceding years from performing the festival, they applied sufficiently early with a view to get orders from the Magistrate and if the orders went against them to obtain remedy by way of revision from this Court. The application was disposed of by the Magistrate on 9 October, 1947. He found on the basis of a report from the Circle Inspector of Police that if the petitioners are permitted to perform the festival first before the counter-petitioners, there may be breach of the peace. Consequently, the Magistrate passed orders under Section 144, Criminal Procedure Code, fixing two different periods of time on 18 November, 1947, when either party should perform the festival at that place. The counter- petitioners party was to perform it first between 5-30 p.m. and 7 p.m. on that day and during that time the petitioners party was restrained from interfering with the celebration of the festival by the counter-petitioners. Likewise the petitioners were permitted to hold the festival between 7-15 p.m and 9 p.m. and during that time the counter-petitioners were to be restrained by interfering with the performance of the ceremony by the petitioners.

(2.) It would appear that the petitioners are interested in Kandappan temple situated in Kadapparkoil Street where the deity Subramaniam is worshipped The idol seems to have been installed and worshipped in that temple from time immemorial. In Mohambariamman temple which is situate in Palli Street there was no Subramania idol. Hence Soorasamharam festival used to be performed by the petitioners bringing their idol from Kandappan temple near Mohambariamman temple and performing Soorasamharam there. In or about 1906 the counter- petitioners installed Sri Balasubramaniaswami in the Mohambariamman temple and consecrated it. Thereafter, they commenced to perform Soorasamharam festival themselves. Disputes started between the two parties as to who was entitled to prior performance of the festival. For some time, the performance of the festival by either party was stopped by the authorities with the result the petitioners filed O.S. No. 290 of 1930 in the District Munsiff's Court, Maduranthakam for a declaration of their right and for an injunction restraining the counter-petitioners from interfering with the exercise of those rights. That suit was decided by the District Munsiff on 4 February, 1931. The learned District Munsiff found that the petitioners were entitled to perform Soorasamharam festival for their idol on the public road near Mohambariamman temple although they were not entitled to do so within the counter-petitioners temple or in the vacant site in front thereof. As regards the right that was specifically claimed in that suit by the petitioners to have their Soorasamharam festival performed prior to that of the counter-petitioners, the learned District Munsiff made this observation: It appears to me, considering the fact that the plaint idol has been having the utsavam for a much longer time than that of the defendants idol and that the defendants idol came into existence only very recently, the preference ought to have been given to the plaintiffs idol to have the Surasamharam done first. But no such right can be declared and it is for the Magistracy and the police who will have to regulate the performance of the festival to pass suitable orders. Their right to regulate these is undisputed. Following upon these findings, the declaration was granted in these terms: That the plaintiffs are entitled to perform their Surasamharam festival for their idol in the public highway in front of Mohambariamman temple and that the defendants be restrained by a permanent injunction interfering with the plaintiffs performing the utsavam.

(3.) It has to be noted that though a declaration and injunction were asked for in respect of the prior or preferential right of the petitioners, no declaration whatever was made in that behalf in the operative part of the judgment or decree. It is on the other hand clear from the extracts from the judgment quoted above and from the effect of Section 11 of the Civil P. C. that that claim was definitely negatived by the trial Court. Against this judgment, the defendants appealed and the plaintiffs (petitioners herein) also filed a memorandum of cross- objections. The Subordinate Judge who heard the appeal allowed it in an erroneous view of the law. Dealing with the memorandum of cross-objections which related to the question of the plaintiffs right to first performance of the festival at that place, the learned Subordinate Judge dismissed the memorandum of objections also in the view that he had taken on the main question. But all that is material to observe is that the petitioners themselves understood the decree of the District Munsiff to amount to negativing their claim that they were entitled to first performance of the festival in preference to the counter-petitioners. It is in that view that the memorandum of cross-objections was filed. Against this judgment, there was an appeal brought to this Court by the petitioners. In the memorandum of second appeal, inter alia the following ground was taken: 17. The Court below having held that the plaintiffs were entitled to perform their festival in priority to the defendants ought to have granted the declaration and injunction on that footing. Lakshmana Rao, J., who heard the second appeal set aside the judgment and decree of the Subordinate Judge finding that: there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street and subject to lawful directions by the Magistrate.