In the High Court of Karnataka Dharwad Bench

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 24TH DAY OF AUGUST, 2020

BEFORE

THE HON’BLE MR. JUSTICE E.S. INDIRESH

MFA No.100918/2020 (GM-CPC) c/w MFA NO.101088/2020

MFA NO.100918 OF 2020

Between :

1. Shree Samsthana Mahabaleshwara Deva Gokarna, Rep. by Shree Raghaveshwara Bharathi Swamiji Aged about 42 years, Peetadhipathi Shri Ramachadrapura Matha, Haniya Village, Hosanagara Taluka Shimoga District Administrative Office Shree Mahabaleshwara Temple Gokarna, Kumta Taluk, Uttara Kannada.

2. Shri Ramachandrapura Matha Rep by Shree Raghaveshwara Bharathi Swamiji, Aged 42 years Peetadhipathi Shri Ramachandrapura Matha Haniya Village, Hosanagara Taluka, Shimoga District, Administrative Office Shree Mahableshwara Temple Gokarna, Kumta Taluk.

The Appellant No.1 is represented by the 2

Special Power of Attorney Holder Sri. Ganapati K.Hegde, S/o Krishnaiah Hegde Aged 71 years, Administrator Shree Samsthana Mahabaleshwara Deva, Gokarna, Kumta Taluk, U.K. District.

3. Shri Krishna S/o Ganesh Bhat, Aged 65 years, Chief Executive Officer Shri Ramachandrapura Matha Administartive Office No.2-A J.C.Road, Girinagara First Phase, Bangalore, Rep. by GPA Holder Appellant No.2 i.e. Shri Ramachandrapura Matha. …Appellants

(by Shri K.G. Raghavan, Sr. Counsel for Shri Prashant F. Goudar, Advocate)

And :

1. U.F.M. Ananthraj S/o Dattatreya Adi Age 56 years, R/o Rathabeedi Gokarna-581 319.

2. U.F.M. Vishweshwar S/o Gopal Adi Age 61 years, R/o Rathabeedi Gokarna-581 319.

3. U.F.M. Laxminarayana S/o Venkatarama Adi Age 49 years, R/o Rathabeedi Gokarna-581 319.

4. U.F.M. Suresh S/o Mahabaleshwar Adi Age 54 years, R/o Samudra Road Gokarna-581 319.

5. U.F.M. Subramanya S/o Chandrashekar Adi Age 45 years, R/o Nagabedi Gokarna-581 319.

6. U.F.M. Ganesh S/o Vishweshvar Adi Age 44 years, R/o Nagabedi Gokarna-581 319.

7. U.F.M. Vinayaka S/o Shivram Adimule Age 68 years, R/o Rathabeedi Gokarna-581 319.

8. U.F.M. Dinesh S/o Rambavu Adimule Age 32 years, R/o Rathabeedi Gokarna-581 319.

9. U.F.M. Maneshwar, S/o Narayan Adimule Age 69 years, R/o Rathabeedi Gokarna-581 319.

10.U.F.M. Ganesh S/o Narayan Adimule Age 65 years, R/o Rathabeedi Gokarna -581319.

11.U.F.M. Anant, S/o Narayan Adimule, Age 63 years, R/o Nagabedi Gokarna-581 319.

12.U.F.M. Narayan, S/o Krishna Adimule, Age 50 years, R/o Rathabeedi Gokarna-581 319.

13.U.F.M. Vishnumurti, S/o Subhraya Adi, Age 42 years, R/o Rathabeedi Gokarna-581 319.

14.U.F.M. Dhamodar, S/o Shivram Adimule, Age 65 years, R/o Manibhadra Road Gokarna-581 319. 4

15.U.F.M. Chandrashekar, S/o Shivram Adimule Age 49 years, R/o Manibhadra Road Gokarna-581 319.

16.U.F.M. Radhakrishna, S/o Ganapati Adimule Age 42 years, R/o Manibhadra Road Gokarna-581 319.

17.U.F.M. Laxmish, S/o Mahabaleshwar Adimule Age 47 years, R/o Manibhadra Road Gokarna-581 319.

18.U.F.M. Venkatraman, S/o Keshav Adimule Age 42 years, R/o Manibhadra Road Gokarna-581 319.

19.U.F.M. Sheshambhat, S/o Subhraya Adimule Age 54 years, R/o Manibhadra Road Gokarna-581 319.

20.U.F.M. Anant, S/o Ramakrishna Adimule, Age 45 years, R/o Rathabeedi Gokarna-581 319.

21.U.F.M. Krishna Datta, S/o Subhraya Adimule, Age 57 years, R/o Rathabeedi Gokarna-581 319.

22.U.F.M. Anant, S/o Ganesh Adimule, Age 69 years, R/o Rathabeedi Gokarna-581 319.

23.U.F.M. Mahadev, S/o Ganesh Adimule, Age 67 years, R/o Rathabeedi Gokarna-581 319.

24.U.F.M. Venkatraman, S/o Ganesh Adimule, Age 65 years, R/o Rathabeedi 5

Gokarna-581 319.

25.U.F.M. Gajanan, S/o Krishna Hire, Age 69 years, R/o Kotatirta Katte Gokarna-581 319.

26.Shri Kshetra Upadvivant Mandal Represented by its Secretary At/Po:Gokarna, Taluk:Kumata Dist: Karwar-581319. …Respondents

(By Shri. S.S.Naganand, Senior Counsel for Shri. A.P.Hegde Janmane & Vijay M. Malali, Advocates for R1 to R25)

This MFA is filed under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure 1908, against the Order dated 19.02.2020 passed in Original Suit No.2/2016 on the file of the Principal District and Sessions Judge, Uttara Kannada, Karwar, allowing the I.A.No.1 filed under Order 39 Rule 1 and 2 of CPC.

MFA NO.101088 OF 2020

Between :

Shri Kshetra Upadhivanta Mandal (Registered) Gokarna, Kumta Taluk Rep. by its Secretary Balakrishna Ganapati Jambhe Vaidik Age 60 years, Occupation: Secretary Shri Kshetra Upadhivanta Mandal At/Po: Gokarna Taluk: Kumata Dist: Karwar-581 319 ….Appellant 6

(by Shri K.G. Raghavan, Senior for Shri Akshay A. Katti, Advocate)

And : 1. U.F.M. Ananthraj S/o Dattatreya Adi Age 56 years, R/o Rathabeedi Gokarna-581 319.

2. U.F.M. Vishweshwar S/o Gopal Adi Age 61 years, R/o Rathabeedi Gokarna-581 319.

3. U.F.M. Laxminarayana S/o Venkatarama Adi Age 49 years, R/o Rathabeedi Gokarna-581 319.

4. U.F.M. Suresh S/o Mahabaleshwar Adi Age 54 years, R/o Samudra Road Gokarna-581 319.

5. U.F.M. Subramanya S/o Chandrashekar Adi Age 45 years, R/o Nagabedi Gokarna-581 319.

6. U.F.M. Ganesh S/o Vishweshvar Adi Age 44 years, R/o Nagabedi Gokarna-581 319.

7. U.F.M. Vinayaka S/o Shivram Adimule Age 68 years, R/o Rathabeedi Gokarna-581 319.

8. U.F.M. Dinesh S/o Rambavu Adimule Age 32 years, R/o Rathabeedi Gokarna-581 319.

9. U.F.M. Maneshwar, S/o Narayan Adimule Age 69 years, R/o Rathabeedi 7

Gokarna-581 319.

10.U.F.M. Ganesh S/o Narayan Adimule Age 65 years, R/o Rathabeedi Gokarna -581319.

11.U.F.M. Anant, S/o Narayan Adimule, Age 63 years, R/o Nagabedi Gokarna-581 319.

12.U.F.M. Narayan, S/o Krishna Adimule, Age 50 years, R/o Rathabeedi Gokarna-581 319.

13.U.F.M. Vishnumurti, S/o Subhraya Adi, Age 42 years, R/o Rathabeedi Gokarna-581 319.

14.U.F.M. Dhamodar, S/o Shivram Adimule, Age 65 years, R/o Manibhadra Road Gokarna-581 319.

15.U.F.M. Chandrashekar, S/o Shivram Adimule Age 49 years, R/o Manibhadra Road Gokarna-581 319.

16.U.F.M. Radhakrishna, S/o Ganapati Adimule Age 42 years, R/o Manibhadra Road Gokarna-581 319.

17.U.F.M. Laxmish, S/o Mahabaleshwar Adimule Age 47 years, R/o Manibhadra Road Gokarna-581 319.

18.U.F.M. Venkatraman, S/o Keshav Adimule Age 42 years, R/o Manibhadra Road Gokarna-581 319.

19.U.F.M. Sheshambhat, S/o Subhraya Adimule 8

Age 54 years, R/o Manibhadra Road Gokarna-581 319.

20.U.F.M. Anant, S/o Ramakrishna Adimule, Age 45 years, R/o Rathabeedi Gokarna-581 319.

21.U.F.M. Krishna Datta, S/o Subhraya Adimule, Age 57 years, R/o Rathabeedi Gokarna-581 319.

22.U.F.M. Anant, S/o Ganesh Adimule Age 69 years, R/o Rathabeedi Gokarna-581 319.

23.U.F.M. Mahadev, S/o Ganesh Adimule Age 67 years, R/o Rathabeedi Gokarna-581 319.

24.U.F.M. Venkatraman, S/o Ganesh Adimule Age 65 years, R/o Rathabeedi Gokarna-581 319.

25.U.F.M. Gajanan, S/o Krishna Hire, Age 69 years, R/o Kotatirta Katte Gokarna-581 319.

26. Shree Samsthana Mahabaleshwara Deva Gokarna, Rep. by Shree Raghaveshwara Bharathi Swamiji Aged about 42 years, Peetadhipathi, Shri Ramachandrapura Matha, Haniya Village, Hosanagara Taluka, Shimoga District Administrative Office Shree Mahabaleshwara Temple, Gokarna, Kumta Taluk, Uttara Kannada.

27.Shri Ramachandrapura Matha Rep. by Shree Raghaveshwara Bharathi Swamiji, 9

Aged 42 years Peetadhipathi Shri Ramachandrapura Matha Haniya Village, Hosanagara Taluka, Shimoga District, Administrative Office Shree Mahableshwara Temple Gokarna, Kumta Taluk.

28.Shri Krishna S/o Ganesh Bhat, Aged 65 years, Chief Executive Officer Shri Ramachandrapura Matha Administrative Office No.2-A J.C.Road, Girinagara I Phase, Bangalore, …Respondents

(By Shri. S.S.Naganand, Senior Counsel for Shri A.P. Hegde, Janmane, Advocate for R1 to R25)

In these Appeals arguments being heard, judgment reserved, coming on for pronouncement through video conferencing, this day, the court delivered the following:

J U D G M E N T

It is said: "If a man seeks unity in deity, then he must necessarily learn to seek unity with the interests of the world also and has to work with it and should learn to live in peace & harmony. ”

These matters were taken up for final hearing by the consent of learned senior counsel on both sides on 09 th March

2020. The matter was heard in part and again it was called on

11 th March, 2020. On that date, learned Senior Counsel appearing for the appellants submitted that, he has some more submissions to make. He was accordingly permitted to do so, as there was no objection from the other side. Again, the matter was listed on 06 th August, 2020 and the learned Senior Counsel for both sides submitted that, date may be fixed in the matter and thereby, case was finally heard on 10 th August, 2020.

2. These appeals are directed against order dated

19.02.2020 passed on IA.I in O.S.No.2/2016 on the file of the

Principal District and Sessions Judge, Uttara Kannada, Karwar.

Appellants in these appeals are the defendants before the trial

Court. Since these two appeals are filed assailing the common

judgment dated 19.02.2020 passed in O.S.No.2/2016 and as identical issues are involved in both appeals, they are connected, heard together and disposed of by this Judgment. 11

3. For the sake of convenience, rank of the parties in these

appeals, are referred to with their status before the trial Court.

FACTS :

4. The relevant facts, for the purpose of adjudication of these appeals, are as under:

Plaintiffs herein and another set of plaintiffs who were

similarly placed, have filed suits in Original Suits No.20/2014

and 22/2014 on the file of the Senior Civil Judge, Kumta, against

the defendants therein seeking reliefs of damages and

permanent injunction. Since the learned Presiding Officer has

expressed his opinion of displeasure in hearing the matter,

petition was moved before the District Court, Karwar for

transferring the suits, however, the said request for transfer was

rejected by the District and Sessions Judge, Uttara Kannada,

Karwar. Being aggrieved by the same, the defendant No.1 has

filed WP No.59527 of 2015 and connected matters before this

Court and this Court, by its order dated 28 th March, 2016

allowed the Writ Petition and order passed by the Principal

District and Sessions Judge, Karwar was set aside and the 12

Original Suits No.20 of 2014 and 22 of 2014 pending consideration on the file of the Senior Civil Judge, Kumta were withdrawn and transferred to the Principal District and Sessions

Judge, Karwar for fresh consideration in accordance with law.

Plaintiffs have sought for following reliefs in the suit:

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5. Plaintiffs have sought for compensation of

Rs.5,70,000/- with interest at 12% per annum, inter alia sought for relief of permanent injunction restraining defendants from interfering with plaintiffs’ peaceful performance of pooja, tantrikatana and upadhi rites in the temple in question, and such other reliefs. Plaintiffs have filed IA.I before the Court below under Order XXXIX Rule 1 and 2 of CPC and sought for temporary injunction restraining defendants from interfering with pooja rights of plaintiffs. The contention of plaintiffs before the

Court below are that they are the hereditary archakas of defendant No.1-temple and having hereditary pooja rights and they are called “Upadhivantas”. The claims of plaintiffs are that 14

they are performing pooja in defendant No.1-temple and also other connected temples and they are having hereditary rights to collect dakshinas from devotees. Plaintiffs further state that defendant No.1-temple was being maintained by Moktesar

Mandali, and after 1950, as per the Bombay Public Trust Act,

1950, defendant No.1-temple was registered as per the aforesaid Act and it was managed by Moktesar Mandali. In the past, there were disputes with regard to upadhi rights among

Upadhivantas of defendant No.1-temple and Moktesar Mandali of defendant No.1, suits were filed before the Civil Court at Kumta;

District Court Karwar and in Bombay High Court, and it was decided and declared that the family members of plaintiffs are entitled for performing upadhi rites in defendant No.1-temple and as such, restrained Moktesar Mandali from interfering with the upadhi rights of plaintiffs ancestors, and therefore, the contention of plaintiffs was that there is already decided

judgment by the competent Courts with regard to the hereditary rights of the plaintiffs’ family and thereby, they are performing pooja in defendant No.1-temple and other connected temples. It is further averred in the affidavit accompanying application IA.I 15

that the State Government has issued notification dated

12.08.2008, handing over the administration of defendant No.1- temple to defendant No.2 which belongs to a particular community and during the said period, plaintiffs have strongly objected for handing over management of the temple to defendant No.2 and the matter was carried up to this Court and thereby defendants No.1 and 3 are taking revenge against plaintiffs and are filing false cases against plaintiffs.

6. It is further stated by plaintiffs that on 12.04.2014 defendants started obstructing plaintiffs during performing of pooja in defendant No.1-temple and other connected temples and accordingly, plaintiffs have filed the instant suit seeking permanent injunction against defendants and have also filed IA.I under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure seeking temporary injunction restraining defendants from interfering with their pooja rights.

7. Pursuant to summons issued by the Court below, defendants No.1 to 3 have appeared through their advocates and filed detailed written statement inter alia filed objections to 16

IA.I filed by plaintiffs seeking temporary injunction restraining defendants from interfering with their pooja rights. The defendant No.4 impleaded himself as a party defendant No.4 in the suit. Defendants contended that the said application is not maintainable, as plaintiffs are neither Upadhivantas nor performing pooja in the temple. Defendants further stated that they are in no way connected with the orders referred to by plaintiffs and plaintiffs have not been given any right under those judgments and decree of the Courts, as mentioned by plaintiffs. Defendants further submitted that if said decrees were executable decrees, then there was no necessity for plaintiffs to file the present suit. It is further contended that those decrees, mentioned hereinabove are not at all implementable. It is further contended by defendants in the objections to IA.I that, on 12.08.2008, the Government of

Karnataka has passed an order handing over management of temple to the defendant No.2 and the legality of order passed by the Government of Karnataka on 12.08.2008 requires to be decided in the pending Special Leave Petitions before the Hon’ble

Supreme Court of India. It is the further contention of 17

defendants that plaintiffs are in the habit of creating untoward incidents in the temple premises. Defendants further state that plaintiffs have not got themselves enrolled as Upadhivnthas in the Management Committee. It is the stand of defendants, that the temple was in deteriorative condition and defendants have initiated renovation to develop the said temple and thereby, plaintiffs herein obstructed defendants from developing the said temple. It is further stated in the objections by defendants that plaintiffs are not entitled for relief of temporary injunction as there is no prima facie case made out by plaintiffs for granting temporary injunction and the relief sought for by plaintiffs for permanent injunction itself is not maintainable, as plaintiffs are required to file separate suit for declaration and possession and in that view of the matter, defendants contended that the suit is not maintainable before the trial Court. In addition to the same, defendants stated that plaintiffs have no prima facie case and balance of convenience is not in favour of plaintiffs and no irreparable loss or no hardship would cause to plaintiffs if temporary injunction is refused. It is further stated that since the suit itself is not maintainable before the Court below, 18

plaintiffs are not entitled for temporary injunction as sought for in application IA.I. Accordingly, defendants have sought for dismissal of the application.

8. Learned Principal District and Sessions Judge, Karwar, having heard the learned counsel appearing for plaintiffs and the defendants and after considering the material on record, has formulated the following points for consideration:

(a) Whether the plaintiffs prove prima-facie case in their favour?

(b) Whether the plaintiffs further prove that the balance of convenience lies in their favour?

9. The trial Court, after considering the grounds urged by

the parties with regard to grant of or refusal of temporary

injunction, has passed the following order on 19.02.2020:

"The IA.I filed by the plaintiffs under Order XXXIX Rule 1 and 2 CPC is hereby allowed. 19

The defendants are hereby restrained from interfering in the plaintiffs’ peaceful performance of the pooja of Temple till final orders are passed in this case. "

GROUNDS OF APPEAL

10. Being aggrieved by the order dated 19.02.2020 passed on IA.I in the suit, defendants have preferred these appeals on the following grounds:

Defendants stated that the learned trial Judge failed to consider the fact that O.S.No.22/2014 was initially filed before the Senior Civil Judge Kumta, in the year 2014 and IA.I for grant of temporary injunction had been filed along with the suit way back in the year 2014 and the same was pending consideration before the trial Court till the disposal of the said application on

19.02.2020. Though the said application was pending consideration before the trial Court for more than five years, in the absence of hearing on the said application, as also, not showing any urgency in the matter, plaintiffs have shown diligence to prosecute the said application at the later stage after five years despite the fact that plaintiffs are not functioning as 20

Upadhivantas of temple and have not participated in various rituals of the temple in question. It is also stated that, admittedly, plaintiffs have not exercised their alleged right of

Upadhivantas from 12.08.2008, the date on which the

Administration and Management of the temple in question was taken over by the Government and handed over to the defendant No.2. In these circumstances, the trial Court ought to have considered the fact that plaintiffs are not performing upadhi rites from 12.08.2008 onwards and in that view of the matter, the impugned order passed by the trial Court on IA.I is liable to be set aside on the ground that the balance of convenience lies in favour of the defendants and this aspect of the matter was not considered by the trial Court while passing the impugned order.

11. Appellant-defendants further submitted that since

12.08.2008, they are in the Management of temple and pursuant to handing over of the temple in question to the defendant No.2, defendants, in order to maintain transparency in enrolling

Upadhivantas, has widely published calling for applications from competent persons for appointment of Upadhivantas and in 21

response to the same more than 500 applicants have submitted their applications along with requisite certificates showing their knowledge in Agamashastra and such other aspects relating to performing pooja, and an expert Committee was formed to examine the genuineness of claims made by such applicants and accordingly the said Committee has cleared applications of about

450 applicants and some of the claims were rejected for lack of evidence to establish their qualifications for performing upadhi rites. In spite of giving adequate opportunity to all the applicants including plaintiffs herein, however, for the reasons best known to the plaintiffs, plaintiffs had not chosen to apply for enrollment as Upadhivantas with the defendant No.2. In this regard, appellant-defendants submitted that, prima facie, it can be inferred from the conduct of the plaintiffs that, plaintiffs did not possess any right to claim as Upadhivantas in the temple in question, that too after more than six years from the date of institution of the suit, and accordingly, order on application IA.I, is wholly unwarranted inter alia the suit itself is not maintainable. 22

12. It is further stated by appellants that, an identical relief was sought for in O.S.No.1/2016, whereunder the order of granting temporary injunction to plaintiffs therein was challenged before this Court in MFA No.102105/2018 connected with MFA No.102110/2018, and this Court vide order dated

21.03.2019 disposed of the appeal with certain observation against defendants. Being aggrieved by the same, defendants herein have filed SLP No.13806/2019 before the Hon’ble

Supreme Court and the Hon’ble Supreme Court by its order dated 07.08.2019 granted an interim order of stay of further proceedings arising out of the judgment dated 21.03.2019 passed by this Court in MFA No.102105/2018 and connected

MFA No.102110/2018. The trial Court, without considering the said aspect of the matter has passed the impugned order, which requires to be set aside.

13. It is also stated that the suit for injunction itself is not maintainable before the trial Court without seeking declaratory reliefs and defendants therein have denied the rights claimed by plaintiffs with regard to Upadhivantas, and therefore, 23

plaintiffs have not made out a prima facie case for interference by defendants and this aspect of the matter was ignored by the trial Court. It is further stated that the trial Court, without considering the ingredients of granting of or refusal of temporary injunction as settled by the Hon’ble Supreme Court and this

Court in various judgments, has passed the impugned order, which requires to be interfered with by this Court. It is also the case of defendants before this Court that the learned trial Judge has not properly discussed the arguments advanced by defendants on IA.I and therefore the impugned order is glaringly arbitrary for want of application of mind. It is stated by defendants that, though defendants have placed all materials before the trial Court, viz. various orders passed by the Hon’ble

Supreme Court referred to above and orders passed by this

Court in connection with the appointment of Upadhivantas and also the rights of plaintiffs who were identically placed, however, the Trial Court has kept out from the discussion at the time of allowing IA.I filed by plaintiffs and same has caused miscarriage of justice to defendants. It is also stated by defendants

(appellants herein) that the learned trial Judge ought to have 24

noticed the order passed by the Division Bench of this Court in

Writ Appeal No.5131/2008, whereunder this Court has held that all persons having the right of performing upadhi rites and/or all those who are hereditary Upadhivantas may make an application to the temple administration run by the defendant No.2 and provide proof of their rights as Upadhivantas and the said aspect of the matter was not considered by the learned trial Judge. The learned trial Judge failed to consider the settled principle of law that the interim order to be passed by the Court should be in the aid of the final relief in the suit and without considering the same, impugned order passed by the trial Court is erroneous, capricious and arbitrary in nature, which cannot stand in the eye of law. It is also stated that the trial Court, without application of mind, has exercised its discretionary jurisdiction irrationally and therefore, the impugned order does not stand to any legal and logical conclusion and accordingly, appellants sought for setting aside the impugned order dated 19 th February, 2020 passed by the trial Court on IA.I in O.S.No.2/2016. 25

14. Plaintiff-respondents herein have entered appearance by way of caveat petition in these appeals.

15. I have heard Shri K.G. Raghavan, learned Senior

Counsel appearing on behalf of Shri Prashant F. Goudar, counsel for appellant-defendants and Shri S.S. Naganand, learned Senior

Counsel appearing on behalf of Shri A.P. Hegde Janmane and

Shri Vijay M. Malali, for respondent-plaintiffs.

SUBMISSIONS OF APPELLANTS

16. Shri K.G. Raghavan, learned Senior Counsel submits that the plaintiffs ought to have filed a suit for declaration to establish their pooja rights and without seeking declaratory reliefs as per Section 41 of the Specific Relief Act, have filed the suit for bare injunction which is not maintainable before the trial

Court and consequently, considering of IA.I filed by plaintiffs does not arise and the said aspect of the matter was not considered by the trial Court. He further submitted that, pursuant to the notification dated 12.08.2008, passed by the

Government of Karnataka, the temple in question is under the custody of the defendant No.2, and defendant No.2, having 26

taken custody of the temple, had made major improvements in the temple and thereby the number of devotees visiting the temple has been gradually increased and the interest of devotees is considered to be paramount by defendants. The renovation of temple is also done by the defendant No.2 and accordingly, learned Senior Counsel submitted that the trial

Court has failed to consider the fact that the temple in question is secular one, open for all, and consequently, public interest is involved in protecting the funds being wasted or misappropriated by persons including plaintiff-respondents herein. The paramount consideration of the Government for handing over the temple in question to the defendant No.2 is in the larger public interest and to stop misappropriation of funds of the temple by a few authoritative miscreants and in this regard, learned Senior Counsel has invited my attention to the object and purpose of the order dated 12.08.2008 passed by the

Government of Karnataka.

17. Learned Senior Counsel, while making submission with regard to the order dated 12.08.2008 passed by the 27

Government of Karnataka, has invited the attention of the Court to the last two lines of the said order, whereunder it is stated that the Government has directed the Deputy Commissioner,

Uttara Kannada, to hand over the ‘entire’ administration of the temple in question to defendant No.2 and he further submitted that pursuant to handing over of the temple in question by

Deputy Commissioner, Uttara Kannada, the entire administration of the temple is in the custody of defendant No.2 and therefore, the claim made by plaintiffs that they are continued to be the

Upadhivantas/Archakas in the temple even after issuance of the above order by the State Government, is not correct and the said aspect of the matter was ignored by the learned trial Judge.

18. Learned Senior Counsel for appellants, invited attention of the Court to the averments made in the plaint, particularly, with regard to paragraphs No.3 and 5 of the plaint and submitted that plaintiffs are claiming their right through their ancestors by contending that they were the hereditary

Upadhivantas and in this regard there is a rival claim between the two families, viz. “ Hiré” and “ Adi” and plaintiffs No.1 to 24 28

belong to Adi family and there were disputes between these two families before the Civil Court, Kumta in O.S.Nos.69/1947,

93/1947 and 294/1951 and appeal No.824 of 1949 whereunder the aforesaid civil matters were concluded by the Competent

Court with a direction to both the families to perform upadhi rites alternatively and that both the families are entitled for the benefits arising out of upadhi rites are incorrect. In this aspect of the matter, learned Senior Counsel submitted that the issue involved in the present suit is not an issue in the aforesaid civil suits and basically, the issues involved in the aforesaid suits, as referred to by the plaintiffs, are between the two families claiming rights over performing the upadhi rites inter se and neither defendants herein nor any independent person or the authority are the defendants in those litigations except the two families mentioned above and this aspect of the matter was further highlighted by learned Senior Counsel by submitting that the finding recorded by the Civil Courts in the aforesaid matters are not binding on the defendants. Learned Senior Counsel submitted that since the temple in question has been taken over 29

by the Government by virtue of the notification in the year 2008, the claims made by plaintiffs are without any basis.

19. Sri K. G. Raghavan, Learned Senior Counsel for appellants further submitted that, pursuant to handing over of the temple in question to defendant No.2, many developmental works have been carried out and a large number of devotees are visiting the temple and are having darshan of deity and the reason for transfer of administration of the temple to defendant

No.2 is to ensure peaceful atmosphere in the temple and to control mismanagement of funds in the temple and in furtherance of the same, defendant No.2 has invited applications from competent persons having requisite qualifications for appointment of Upadhivantas by notifications dated 01.10.2008 and 20.10.2008. He submitted that, the perusal of said notifications indicates that in order to ensure transparency in appointment of Upadhivantas for conducting pooja and other rituals of the temple, defendant No.4 was entrusted to conduct the selection of Upadhivantas. He further submitted that, more than 500 applications were received by defendant No.4 and after 30

duly verifying the same, defendant No.4 has conducted the process of appointment, and accordingly, appointed nearly 450 persons as Upadhivantas, who were having knowledge of Agama and Shastras. He further submitted that none of the plaintiffs in the present suit and plaintiffs in the earlier suit in

O.S.No.01/2016 have participated in the selection process for appointment as Upadhivantas, and therefore, plaintiffs cannot claim any legal right, and in view of the same, the learned

Senior Counsel submitted that the relief sought for by plaintiffs in the suit itself is not maintainable. Nextly, learned Senior

Counsel submitted that without seeking declaratory relief from the competent Court, plaintiffs have no right to claim injunctive relief, as the very legal right of plaintiffs was questioned by defendants in their written statement and in view of the same, he submitted that, the trial Court ought to have considered the scope and ambit of Section 34 and 41 of the Specific Relief Act and therefore, the impugned order requires to be set aside by this Court. He further submitted that plaintiffs have not produced any cogent material before the trial Court to make a legitimate claim that they were performing upadhi rites from the 31

date of taking over of the temple by the defendant No.2 (from

12.08.2008 till 12.04.2014) and the perusal of the Government

Order dated 12.08.2008, would clearly establish the fact that the

Government has impliedly excluded those persons who were conducting upadhi rites prior to 2008 and if at all plaintiffs had any right over the temple in question with regard to performing upadhi rites, the said aspect would have reflected in the

Government Order dated 12.08.2008. He further submitted that though the learned trial Judge, in the impugned orders at paragraphs 33 to 74 has referred to the various orders passed by this Court and the Hon’ble Supreme Court, but has not considered the said orders passed by this Court or by the

Hon’ble Supreme Court. In that view of the matter, learned

Senior Counsel submitted that, the impugned order is liable to be set aside on the ground of non-application of mind by the learned trial Judge.

20. Learned Senior Counsel appearing for appellants further invited my attention to the orders dated 08.07.2019 and

07.08.2019 passed by the Hon’ble Supreme Court in SLP 32

No.13806/2019 (referred as Sl.No.46 to 48 in Page No.23 of the impugned order) and submitted that the aforesaid orders have been passed by the Hon’ble Supreme Court, staying the operation of the judgment and order dated 21.03.2019 and further proceedings passed by this Court in MFA

No.102105/2008. He further made submission on the decision made in MFAs whereunder, the order passed by the trial Court dated 30.05.2008 in O.S.No.1/2016 on the file of the Principal

District and Sessions Judge, Uttara Kannada, Karwar allowing

IA.I filed by plaintiffs therein under Order XXXIX Rule 1 and 2

CPC who were similarly placed like that of plaintiffs in the present suit, is stayed by the Hon’ble Supreme Court and Special

Leave Petitions are pending consideration before the Hon’ble

Supreme Court even today also. In that view of the matter, learned Senior Counsel appearing for appellants submitted that the impugned order suffers from perversity and non-application of mind by the learned trial Judge and therefore, the finding recorded by the trial Court allowing IA.I is devoid of merits and is liable to be set aside. 33

21. While referring to the impugned order of the Trial

Court, Sri K.G. Raghavan, learned Senior Cousel submitted that the Trial Court ignored the pleadings of the plaintiffs, particularly paragraphs 3, 5 and 8 of the plaint. He submitted that the functioning of Archaka and Upadhivanta are synonymous and in this regard, by referring to paragraph 3 of the plaint he would submit that the dispute between the “ Adi” and “Hiré” family is

only with regard to their inter se dispute and the same has

nothing to do with the rights of the defendants. He further

submitted that the plaint has been cleverly drafted to bring the

two terminologies of Archaka and Upadhivanta to establish their

rights in respect of the temple in question. Referring to

paragraph 5 of the plaint, the learned Senior Counsel submitted

that plaintiffs themselves have admitted that they had not

performed pooja since 12 th April, 2014 as per paragraphs 5 and

8 of the plaint, inter alia, the suit was filed on 12th July, 2014 and plaintiffs had not placed any material before the trial Court to explain the delay in agitating their rights in respect of temple in question. He further submitted that the learned trial Judge has failed to consider the averments made in paragraphs 3, 5 34

and 8 of the plaint while passing the impugned order and the learned trial Judge ought to have rejected the application IA.I.

On adverting to reliefs claimed in the plaint, the main contention of the appellants is that, the suit is merely seeking damages against the defendants and in that view of the matter, without claiming declaratory relief in the plaint, the suit itself is not maintainable before the trial Court.

22. Further, learned Senior Counsel, elaborately made submissions with regard to the disputed question of fact alleged in the plaint and also referred the judgment dated 15 th

December, 2008 passed by the Division Bench of this Court in

Writ Appeal No.5131 of 2008. He submitted that though an opportunity was given to plaintiffs to make application seeking appointment of Upadhivantas in the temple in question, inter alia, the Division Bench of this Court in Writ Appeal No.5131 of

2008 had directed the fifth respondent therein (appellant herein) to consider the request made by appellants therein who were similarly placed to that of plaintiffs, however, for the reasons best known to plaintiffs, none of the plaintiffs have made any 35

application for appointment of Upadhivanta pursuant to notifications dated 01.10.2008 and 20.10.2008.

23. Learned Senior Counsel referred to the finding recorded by the trial Court at paragraph 79 of the judgment, whereunder, the trial Court has observed as follows:

“The materials available on record prima-facie shows that the plaintiffs have made out prima-facie case. The balance of convenience lies more in favour of the plaintiffs than the defendants. If an order of temporary injunction is not granted, it is the plaintiffs who will be put to greater loss and inconvenience, as it is the spiritual rights which the plaintiffs family are entitled to perform it and performing the same for more than decades. So, it is not the monetary loss or inconvenience that has to be taken into consideration, but loss to the entire family as they will be deprived of an opportunity serving themselves to the holiness of God. ” (emphasis by me)

In this regard, he submitted that the basis for allowing IA.I filed

by plaintiffs under Order XXXIX Rule 1 and 2 of Code of Civil

Procedure by the trial Court is by recognising the spiritual rights

of plaintiffs, which is alien to the rights of the deities and 36

worshippers. In this regard, learned Senior Counsel places reliance on the judgment passed by the Hon’ble Supreme Court in the case of SHESHAMMAL AND OTHERS ETC. ETC. v. STATE

OF TAMIL NADU reported in (1972)2 SCC 11 and invited the attention of the Court to paragraphs 11, 12 and 21 of the

judgment and thereby, submitted that the Archak has never been regarded as a spiritual head of any institution and Archak be a accomplished person, should be well-versed in the Agama and rituals necessary to be performed in a temple, but he does not have a status of a spiritual head.

24. Further, learned Senior Counsel for appellants drew the attention of the Court with regard to law declared by the

Hon’ble Supreme Court in the case of N. ADITHAYAN v.

TRAVANCORE DEVASWOM BOARD AND OTHERS reported in

(2002) 8 SCC 106, particularly referring to paragraph 17 of the

judgment, submitted that, in the instant case, defendant No.2 had issued notifications dated 01.10.2008 and 20.10.2008, inviting applications from competent persons who are eligible or qualified to perform as Upadhivantas and steps were also taken 37

by defendant No.2 to ensure that devotees’ interest shall be paramount and protected while performing the upadhi rites/pooja and to exclude incompetent persons who does not have knowledge of Agamashastra and performing upadhi rites.

Learned Senior counsel submitted that as per Agamashastra, persons who are performing daily rituals and upadhi rites are required to maintain sanctity of the idol and in order to maintain the same, Upadhivantas should be qualified and are to be properly trained only for that purpose and such trained

Upadhivantas alone shall perform pooja and other rituals in the temple in question and since plaintiffs herein have not made any application to the aforementioned notifications issued by the defendant No.2 and as such, plaintiffs have no legal right to maintain the suit itself.

25. In order to substantiate the continuance of pooja in the temple in question, the learned Senior Counsel requested the attention of the Court to the judgment passed by the Hon’ble

Supreme Court in the case of KISHORE KUMAR KHAITAN AND

ANOTHER v. PRAVEEN KUMAR SINGH reported in (2006)3 SCC 38

312 and submitted that in order to prove prima facie case by the plaintiffs in the instant case, plaintiffs ought to have established their case that as on the date of filing of the suit, they were functioning as Archak/Upadhivanta in the temple in question, and as per paragraphs 3, 5 and 8 of the plaint read with

Government Order dated 12.08.2018, plaintiffs are not performing pooja or upadhi rites in the temple.

26. It is also stated by the learned Senior Counsel that the impugned order suffers from infirmity as there are no reasons forthcoming in the impugned judgment. The trial court merely cited the documents referred by the defendants, however, none of the documents produced by the defendants were examined in detail by the trial Court before passing the impugned order. It is also submitted that the impugned order is contrary to law declared by this Court in the case of

KRISHNAPPA v. SRI RAMAKRISHNA AND OTHERS in Writ Petition

No.37178 of 2017 disposed of on 31 st January, 2018.

27. In order to substantiate his arguments with regard to the notifications issued by the defendant No.2 for appointment of 39

Upadhivantas, learned Senior counsel for the appellant- defendants submitted that the selection of Archakas should be made in accordance with Agamashastra, subject to their due identification as well as their conformity with situation that mandates the principles. In this regard, he relied upon the law declared by the Hon’ble Supreme Court in the case of ADI SAIVA

SIVACHARIYARGAL NALA SANGAM AND OTHERS VS

GOVERNMENT OF TAMIL NADU AND ANOTHER reported in 2016

(2) SCC 725 and invited attention to paragraph 48 of the

judgment and submitted that the impugned order is patently illegal and contrary to the law declared by the Hon’ble Supreme

Court referred to above, and as such, the impugned order is devoid of merits, as the learned trial Judge has failed to consider the material aspect of the case in the light of judgments passed by the Hon’ble Supreme Court referred to above and therefore, learned Senior Counsel for appellants sought for setting aside the impugned order and for dismissal of IA.I filed by the plaintiffs under Order XXXIX Rule 1 and 2 of CPC in

O.S.No.2/2016. 40

SUBMISSIONS OF THE RESPONDENTS:

28. Per contra, Sri S.S. Naganand, learned Senior

Counsel appearing for respondent-plaintiffs submitted that the functions of Upadhivantas and Archakas are different. The notification dated 12.08.2008 passed by the Government is illegal and contrary to Article 25 and 26 of the Constitution of

India and the Hindu Religious and Charitable Endowments Act,

1997 whereunder Section 23 of the Act, provides for notification of the temples under the Act and insofar as the said Act is not applicable to the hereditary functionaries and Mutts and in view of the same, the Government Order dated 12.08.2008 was set aside by the Division Bench of this Court and later the matter was carried to the Hon’ble Supreme Court. He further submitted that the rights of plaintiffs are already crystallised in

O.S.No.93/1951 by the Civil Judge, Kumta, whereunder the said suit was decreed and injunction was granted in favour of the predecessors of plaintiffs. Sri Naganand, further submitted that the rights of plaintiffs were further declared in O.S.No.9/1945 filed by plaintiffs therein for declaration, injunction and damages 41

on the file of the Civil Judge, Kumta, and the said suit was partly decreed on 18.07.1956 in respect of relief of declaration and injunction except as to the relief of damages. Learned Senior

Counsel further submitted that the decree dated 24.11.1952 passed in appeal No.824/1949 by the Hon’ble High Court of

Judicature at Mumbai is directly binding on the defendants. He further submitted that the original defendant challenged the order passed in appeal No.109/1946 by the District Judge,

Karwar awarding damages and decree passed in O.S.No.9/1945 by the Civil Judge, Kumta before this Court, and this Court set aside the decree passed by the lower appellate Court and restored the decree passed by the trial Court modifying that plaintiffs therein are entitled for damages for the obstruction caused to Upadhivantas acting on behalf of plaintiffs as Archakas and also in collecting perquisites incidental to Archakas. Sri S.

S. Naganand, learned Senior Counsel for respondents urged that, the judgment and decree passed by the Civil Judge Kumta in O.S.No.294/1947 for relief of declaration and injunction and decreeing the suit partly in favour of plaintiffs and as such, the competent Civil Court has already declared that the predecessors 42

of plaintiffs themselves have right to collect dakshina in sanctum-sanctorum ( Garbhagudi ) or through hastakas duly appointed during their turn and to restrain other defendants from obstructing in their turn of performance of upadhi rites and as such, the Civil Court has granted injunction in favour of the trustees of the temple to vacate intruders from Garbhagudi of the temple. Learned Senior Counsel appearing for respondents submitted that there is a clear distinction between the rights of

Uphadivantas and that of Archakas in the temple in question.

Elaborating the functions of Upadhivantas and of Archakas, learned Senior Counsel submitted that Upadhivantas have right of assisting the pilgrims in performing various pooja, kainkarya and daana in the precincts as well as outside the temple, however, only the hereditary archakas have the right of performing pooja and tantrikatana by themselves or by deputing their subordinates in the sanctum-sanctorum ( garbhagudi ) of the temple and it is the exclusive right of Archakas or Priests and

Upadhivantas have no right to perform pooja or tantrikatana.

He further submitted that litigations relating to certain proceedings that were taken by the Government to withdraw the 43

Notification was on the ground that the temple was not a public temple but belong to an institution known as Ramachandrapura

Mutt was incorrect and the dispute with regard to the same had been concluded by the Division Bench of this Court in the case of

SAMSTHANA MAHABALESHWARA DEVARU v. SECRTARY reported in ILR 2018 KAR 4505 wherein the Division Bench has held that the temple in question not belong to defendant No.1-

Ramachandrapura Mutt. However, he submitted that the said decision is pending consideration before the Hon’ble Supreme

Court and leave is not granted by the Apex Court. He further submitted that withdrawing of the Notification by the

Government with regard to handing over of the management of temple to the defendant No.1 is illegal. Shri S.S.Naganand, further contended that the defendant No.1 is treating the temple as if it is their personal property and not a public property. He further submitted that Original Suit No.69 of 1947 disposed of on

01 st September, 1949; OS No.93 of 1951 disposed of on 23 rd

September, 1956; and OS No.9 of 1945 disposed of on 18 th July,

1956 by the Civil Judge, Kumta, whereunder in these

proceedings the temple in question was arraigned as defendant 44

No.17. He further contended that the proceedings in appeal

No.824 of 1949 before Bombay High Court arising from Civil

Judge, Kumta which was disposed of on 24 th November, 1952,

OS No.294 of 1947 which was before Civil Judge Kumta in OS

No.50 of 1961 and OS No.152 of 1965, in these matters the Civil

Court has declared the right of hereditary Archakas of the ancestors of plaintiffs herein and in that view of the matter, learned Senior Counsel submitted that defendant-appellants herein have no semblance of right over the temple in question.

29. Learned Senior Counsel appearing for respondents further submitted that the dispute in Miscellaneous First Appeal

No.102105 of 2018 connected with MFA No.102110 of 2018 relates to the dispute of Upadhivantas and had nothing to do with that of Archakas. The parties in Original Suit No.1 of 2016 and Original Suit No.2 of 2016 are different, and therefore, it is contended that the interim orders passed by the Hon’ble

Supreme Court referred to above, is not applicable to the facts of case on hand. 45

30. Shri S.S. Naganand, learned Senior Counsel appearing for the respondents submitted that functioning of

Upadhivanta is only to support or assisting the devotees by making necessary arrangements for pooja rituals, however, the functioning of an Archaka is to sit inside the temple and to perform pooja. Hence, learned Senior Counsel submitted that the functioning of an Upadhivanta with that of an Archaka is different and not one and the same. In this regard, learned

Senior Counsel referred to paragraphs 2 and 3 of the plaint and submitted that the ancestors of plaintiffs had established their rights in the civil suits with regard to hereditary rights in respect of the temple in question and the same was continued by plaintiffs. Learned Senior Counsel also pointed out that deity is taken as party in OS No.69 of 1947 and therefore, though suits were between two families, viz. “ Hire ” and “ Adi ”, however, the temple was arraigned as party in the aforesaid suit, and therefore, defendants have no semblance of right to claim in respect of hereditary rights of plaintiffs in this suit. Learned

Senior Counsel also submitted that the temple in question is the plaintiff in OS No.294 of 1947 and therefore, the finding 46

recorded by the trial Court that plaintiffs have made out a ‘prima facie’ case for granting relief of temporary injunction, is just and proper and plaintiffs have also established their right over the temple in question in accordance with the decrees passed by the trial Court in the earlier suits.

31. Learned Senior Counsel Shri S.S. Naganand, further submitted that the Government Order dated 12 th August, 2008 is issued at the behest of the appellant No.1 (defendant No.1) who has played an active role in ousting plaintiffs from the temple in question. In order to substantiate his submissions, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of JOINT ACTION COMMITTEE OF AIR LINE PILOTS’

ASSOCIATION OF INDIA v. DG OF CIVIL AVIATION reported in

(2011)5 SCC 435 and submitted that if any decision had been taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, such decision or order would be patently illegal.

32. Sri S.S. Naganand, learned Senior Counsel further submitted that since the temple in question was a party before 47

the Civil Courts referred to above, the defendants No.1 and 4 in the present suit cannot approbate or reprobate with regard to their rights in respect of Archaka/Upadhivanta. In this regard, the learned Senior Counsel referred to the law declared by the

Hon’ble Supreme Court in the case of SUZUKI PARASRAMPURIA

SUITINGS PRIVATE LIMITED v. OFFICIAL LIQUIDATOR OF

MAHENDRA PETROCHEMICALS LIMITED (IN LIQUIDATION) AND

OTHERS reported in (2018)10 SCC 707 and submitted that the litigant cannot take different stands at different times and also taking any contradictory stand in the proceedings should be deprecated. Taking inconsistent shifting stands cannot be permitted by the courts, as the same amounts to approbation or reprobation on the similar facts, and the same is contrary to the settled principle of law.

33. After adverting to the merits of the case, learned

Senior Counsel for respondents submitted that the learned Trial

Judge has carefully examined the facts and the rights of

Archakship with regard to the temple in question and had come to the conclusion that the Archakas have right by virtue of 48

hereditary nature and those rights cannot be interdicted by any party. It is further submitted that if Archakas are prevented from serving the deity by doing pooja, these precious moments can never be given back to them and that is, precisely, an irreparable loss caused to plaintiff-respondents herein and as such, it is submitted that the well-settled jurisdiction of the

Appellate Court under Order XLIII Rule 1 of the Code of Civil

Procedure ought to be used sparingly and unless the Appellate

Court comes to conclusion that the order of the trial Court is perverse or it completely shocks the conscious of the Court, it is not a case for interference in these appeals. In this regard, learned Senior Counsel places reliance on the Judgment of this

Court in the case of IIM EMPLOYEES ASSOCIATION v. INDIAN

INSTITUTE OF MANAGEMENT reported in 1990(2) KLJ 226.

CONSIDERATION OF SUBMISSIONS

34. Elaborate arguments were advanced by both the learned Senior Counsel appearing for the parties in support of their respective contentions on the merits of the case. It is neither necessary nor desirable to enter into the merits of the 49

case, as expressing any opinion would prejudice either of the parties at the final hearing of the suit.

35. Upon hearing both the learned Senior counsel appearing for the parties and on perusal of the impugned order passed by the Court below, the points that arise for consideration in these appeals, are:

1. Whether the findings recorded by the trial court on IA.I call for interference by this Court?

2. Whether the order of granting temporary injunction in favour of the plaintiffs by the Court below suffers from any illegality or perversity so as to call for interference in this appeal?

3. Whether the trial Court was justified in allowing IA.I filed by the plaintiff-respondents herein?

36. After giving my anxious consideration to contentions advanced by learned Senior Counsel appearing for the parties, the legal position enunciated by this Court and the Hon’ble 50

Supreme Court in the following dictums are necessary and relevant to be mentioned. The Hon’ble Supreme Court in the case of RAMEGOWDA (DEAD) BY LRs v. M. VARADAPPA NAIDU reported in 2004(1) SCC 769, and in the case of MEGHMALA

AND OTHERS v. G. NARASIMHAREDDY AND OTHERS reported in

2010 (8) SCC 383 has held that the person who is in settled position, even in case if he is a trespasser, his right has to be protected against forcible eviction and can be evicted only after following the procedure prescribed by law. The said decision was reiterated by the Hon’ble Supreme Court recently in the case of STATE OF JHARKHAND v. SURENDRA KUMAR SRIVATSA

& OTHERS reported in 2019(4) SCC 214.

37. Further, the law declared by the Hon’ble Supreme

Court in the case of WANDER LTD. AND ANOTHER v. ANTOX

INDIA P. LTD., reported in 1990 Supp(1) SCC 727 is relevant and the Hon’ble Supreme Court held as under:

“(1) Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain 51

uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injucntion, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies". The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.

The Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion 52

has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.

(2) An infringement action is available where there is violation of specific property-right acquired under and recognised by the statute. In a passing-of action, however, the plaintiff's right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which lends to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. 53

The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trade to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damage to the business or goodwill of the other trader .”

38. In examining a contention of this sort relating to

Order XXXIX Rule 1 and 2 of Code of Civil Procedure, the Hon’ble

Supreme Court in the case of GUJARAT BOTTLING CO. LTD. AND

OTHERS v. COCACOLA CO. AND OTHERS reported in (1995)5

SCC 545, wherein the scope of granting or refusing of temporary injunction is dealt with, the Hon’ble Apex Court has observed as under:

“The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right 54

assailed by the plaintiff and its alleged violation are both contested and uncertain and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.

Under order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the 55

party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad-interim or temporary injunction order already granted in the pending suit or proceedings.

Under Section 42 of the Specific Relief Act also the Court is not bound to grant an injunction in every case and injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. ”

39. The Hon’ble Supreme Court in the case of STATE OF

PUNJAB v. STATE OF HARYANA AND OTHERS reported in (2011)

12 SCC 726, at paragraph 28 has held as under:

“28. Hence, in view of the larger damage,

which was caused in Haryana in the year 2010, and 56

which is likely to be caused in Haryana, if the bandh is not properly repaired as undertaken, the balance of convenience is in favour of the defendant State of Haryana. It is rightly pointed out by the State of Haryana that if the relief, as prayed for, is granted to the State of Haryana, which will suffer greater loss and irreparable injury. It cannot as well be denied that the State of Haryana has the right to carry out the necessary work in its territory and also the duty to its citizens.

In the said case, the dispute between the two States for apportionment of water and construction of bandh (dam) was

considered and the Hon’ble Apex Court discussed the law on

balance of convenience.

40. After considering the aforesaid principles enunciated by the Hon’ble Supreme Court on Order XXXIX Rule 1 and 2 of

Code of Civil Procedure and upon application of the said principles to the case on hand, inter alia, pleadings and documents on record, the distinguishing feature in the instant case is with regard to absence of proof in pleading by plaintiffs regarding their continuance of performing pooja from

12.08.2008, the date on which the Government has passed notification handing over the administration of temple in 57

question to the defendant No.2. The notification dated

12.08.2008 is as hereunder:

“PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ £ÀqÀªÀ½UÀ¼ÀÄ

«µÀAiÀÄ: GvÀÛgÀ PÀ£ÀßqÀ f¯ÉèAiÀÄ PÀÄªÀÄmÁ vÁ®ÆèPÀÄ UÉÆÃPÀtð ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÆgÀvÀÄ¥Àr¹ ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀzÀ ¦ÃoÁ¢ü¥ÀwUÀ½UÉ ªÀ»¹PÉÆqÀÄªÀ §UÉÎ.

G¯ÉèÃR: 1. ¸ÀPÁðgÀzÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉå: PÀAE 77 ªÀÄÄ¸ÉÃ« 2003 ¢£ÁAPÀ: 30.4.2003. 2. zsÁ«ÄðPÀ zÀwÛ DAiÀÄÄPÀÛgÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå: KPÀgÀÆ¥À ±Á¸À£À/ ¹Dgï 45/07-08 ¢£ÁAPÀ: 14.5.2008 ºÁUÀÆ 21.06.2008 ----- ¥Àæ¸ÁÛªÀ£É ªÉÄÃ¯É NzÀ¯ÁzÀ PÀæªÀÄ ¸ÀASÉå (1) gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ°è gÁdåzÀ°è 34.245 zÉÃªÀ¸ÁÜ£ÀUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À£ÁßV ¸ÀPÁðgÀ ¥ÀæPÀn¹gÀÄvÀÛzÉ.

GvÀÛgÀ PÀ£ÀßqÀ f¯Éè PÀÄªÀÄmÁ vÁ®ÆèPÀÄ, UÉÆÃPÀtð ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£À ªÀÄvÀÄÛ CzÀgÀ ¥ÀjªÁgÀ zÉÃªÀgÀÄUÀ¼À zÉÃªÁ®AiÀÄzÀ DqÀ½vÀªÀ£ÀÄß ¥ÀgÀA¥ÀgÁUÀvÀªÁV £ÀqÉzÀÄ §AzÀ ¥ÀzÀÞwAiÀÄAvÉ ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀzÀ ¦ÃoÁ¢ü¥ÀwUÀ¼À ªÀiÁUÀðzÀ±Àð£À DzÉÃ±ÀUÀ½UÉ C£ÀÄUÀÄtªÁV PÁ¯Á£ÀÄPÁ®PÉÌ £ÀqÉ¸À®Ä ºÁUÀÆ ²æÃ PÉëÃvÀæzÀ ¸ÀªÀðvÉÆÃªÀÄÄRzÀ C©üªÀÈ¢ÝUÁV ¸ÀzÀj zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀPÉÌ ªÀ»¹PÉÆqÀ®Ä ²æÃ PÉëÃvÀæ UÉÆÃPÀtð G¥Á¢üªÀAvÀ ªÀÄAqÀ¼ÀzÀ CzsÀåPÀëgÀÄ ¢£ÁAPÀ:1.2.2008gÀ ªÀÄ£À«AiÀÄ°è PÉÆÃjgÀÄvÁÛgÉ ªÀÄvÀÄÛ ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀzÀ DqÀ½vÁ¢üPÁjUÀ¼ÀÄ ¸ÀºÀ ¢£ÁAPÀ: 12.4.2008 ºÁUÀÆ 8.5.2008gÀ°è ªÀÄ£À«UÀ¼À£ÀÄß ¸À°è¹, ¸ÀzÀj zÉÃªÀ¸ÁÜ£ÀzÀ DqÀ½vÀ ¤ªÀðºÀuÉAiÀÄ£ÀÄß ²æÃªÀÄoÀPÉÌ ¸ÀA¥ÀÆtðªÁV ªÀ»¹PÉÆlÄÖ vÀ£ÀÆä®PÀ ²æÃ PÉëÃvÀæ UÉÆÃPÀtðzÀ ¸ÀªÀðvÉÆÃªÀÄÄR C©üªÀÈ¢ÞUÉ ²æÃ ªÀÄoÀªÀÅ ±Àæ«Ä¸À®Ä C£ÀÄªÀÅ ªÀiÁrPÉÆqÀ®Ä PÉÆÃjgÀÄvÁÛgÉ.

zsÁ«ÄðPÀ zÀwÛ DAiÀÄÄPÀÛgÀÄ F §UÉÎ PÀÄªÀÄmÁ vÀºÀ¹Ã¯ÁÝgï, PÀÄªÀÄmÁ G¥À«¨sÁUÁ¢üPÁjUÀ¼ÀÄ ºÁUÀÆ GvÀÛgÀ PÀ£ÀßqÀ f¯Áè¢üPÁjUÀ½AzÀ ªÀgÀ¢UÀ¼À£ÀÄß ¥ÀqÉzÀÄ ¸ÀPÁðgÀPÉÌ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ.

F zÉÃªÀ¸ÁÜ£ÀªÀÅ GvÀÛgÀ PÀ£ÀßqÀ f¯ÉèAiÀÄ°èzÀÄÝ, F »AzÉ F ¥ÀæzÉÃ±ÀzÀ°è£À zÉÃªÀ¸ÁÜ£ÀUÀ¼À DqÀ½vÀªÀ£ÀÄß ¨ÁA¨É ¸ÁªÀðd¤PÀ fªÉÄäUÀ¼À PÁAiÉÄÝ 1950 gÀ£ÀéAiÀÄ ¤ªÀð»¸À¯ÁUÀÄwÛzÀÄÝ, F PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ J¯Áè zÉÃªÀ¸ÁÜ£ÀUÀ½UÉ £ÉÆÃAzÀtÂ ªÀiÁr¸ÀÄªÀÅzÀÄ PÀqÁØAiÀÄªÁzÀÝjAzÀ CzÀgÀAvÉ ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß ¸ÀºÀ £ÉÆÃAzÀuÉ ªÀiÁrgÀÄªÀÅzÀÄ PÀAqÀÄ§gÀÄvÀÛzÉ. ¢£ÁAPÀ:1.5.2003 jAzÀ eÁjUÉ §AzÀ PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼ À PÁAiÉÄÝ 1997 ¸ÉPÀë£ï 23 (E) gÀ£ÀéAiÀÄ F »AzÉ £ÉÆÃAzÀtÂAiÀiÁVzÀÝ J¯Áè ¸ÀA¸ÉÜUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À°è ¥ÀæPÀn¸À¨ÉÃPÉA¢zÀÝjAzÀ ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß ¸ÀºÀ C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖAiÀÄ°è ¸ÉÃj¸À¯ÁVgÀÄvÀÛzÉ.

DzÀgÉ PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 1(4)(i)gÀ ¥ÀæPÁgÀ MAzÀÄ ªÀÄoÀPÉÌ CxÀªÁ MAzÀÄ zÉÃªÀ¸ÁÜ£ÀPÉÌ ¸ÉÃjzÀ F PÁAiÉÄÝAiÀÄÄ C£Àé¬Ä¸ÀvÀPÀÌzÀ®è JA¢gÀÄvÀÛzÉ. UÉÆÃPÀtð ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£ÀªÀÅ »AzÉ ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀzÀ ªÁå¦ÛUÉ M¼À¥ÀlÖ ¸ÀA¸ÉÜ JA§ ªÀÄ£À«AiÀÄ »£Éß¯ÉAiÀÄ°è zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ PÉÊ ©qÀ§ºÀÄzÉ JA§ §UÉÎ gÁdåzÀ CqÉÆéPÉÃmï d£ÀgÀ¯ï gÀªÀgÀ C©ü¥ÁæAiÀÄ ¥ÀqÉAiÀÄ¯ÁV, F zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÆgÀvÀÄ¥Àr¸À§ºÀÄzÉAzÀÄ C©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ ªÀÄvÀÄÛ PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄÄ ¸ÀºÀ CqÉÆéPÉÃmï d£ÀgÀ¯ï gÀªÀgÀ C©ü¥ÁæAiÀÄPÉÌ ¸ÀºÀªÀÄvÀ ªÀåPÀÛ¥Àr¹gÀÄvÀÛzÉ.

gÁdå CqÉÆéPÉÃmï d£ÀgÀ¯ï gÀªÀgÀ C©ü¥ÁæAiÀÄ ºÁUÀÆ PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀÄªÀ£ÀÄß ¸ÀPÁðgÀzÀ ºÀAvÀzÀ°è ¥Àj²Ã°¹, F PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹zÉ.

PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼À C¢ü¤AiÀÄªÀÄ 1997gÀ ¸ÉPÀë£ï 1(4)(i)gÀ ¥ÀæPÁgÀ “MAzÀÄ ªÀÄoÀPÉÌ CxÀªÁ CzÀPÉÌ ¸ÉÃjzÀ MAzÀÄ zÉÃªÀ¸ÁÜ£ÀPÉÌ F PÁAiÉÄÝAiÀÄ C£Àé¬Ä¸ÀvÀPÀÌzÀÝ®è” JA¢gÀÄªÀÅzÀjAzÀ ¸ÀPÁðgÀzÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉå: PÀAE 77 ªÀÄÄ¸ÉÃ« 2003 59

¢£ÁAPÀ 30.04.2003 gÀ°è£À GvÀÛgÀ PÀ£ÀßqÀ vÁ®ÆèQ£À C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖAiÀÄ ¥ÀÄl ¸ÀASÉå 734 PÀæªÀÄ ¸ÀASÉå 92 gÀ°è£À GvÀÛgÀ PÀ£ÀßqÀ f¯Éè PÀÄªÀÄmÁ vÁ®ÆèPÀÄ, UÉÆÃPÀtð ²æÃ ªÀÄºÁ§¯ÉÃ±ÀégÀ zÉÃªÀ¸ÁÜ£À ªÀÄvÀÄÛ CzÀgÀ ¥ÀjªÁgÀ zÉÃªÀgÀÄUÀ¼À zÉÃªÀ¸ÁÜUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÆgÀvÀÄ¥Àr¹ DzÉÃ²¹zÉ.

¸ÀzÀj zÉÃªÀ¸ÁÜ£ÀzÀ ¸ÀA¥ÀÆtð DqÀ½vÀªÀ£ÀÄß ²ªÀªÉÆUÀÎ f¯Éè ºÉÆ¸À£ÀUÀgÀ ²æÃ gÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀPÉÌ ºÀ¸ÁÛAvÀj¸À®Ä GvÀÛgÀ PÀ£ÀßqÀ f¯Áè¢üPÁjUÀ½UÉ ¸ÀÆa¸À¯ÁVzÉ.

PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀÄ¸ÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è

(J¯ï. J¸ï. ²æÃPÀAoÀ¨Á§Ä) ¦ÃoÁ¢üPÁj PÀAzÁAiÀÄ E¯ÁSÉ (ªÀÄÄdgÁ¬Ä)

UÉ, ¸ÀAPÀ®£ÀPÁgÀgÀÄ, PÀ£ÁðlPÀ gÁdå ¥ÀvÀæ gÀªÀjUÉ ¥ÀæPÀn¸À®Ä ºÁUÀÆ 150 ¥ÀæwUÀ¼À£ÀÄß MzÀV¸À®Ä PÉÆÃjzÉ.

¥Àæw: 1. ªÀiÁ£Àå ªÀÄÄRåªÀÄAwæUÀ¼À ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðUÀ¼ÀÄ/ PÁAiÀÄðzÀ²ðUÀ¼ÀÄ/ªÀiÁ£Àå ªÀÄÄRåªÀÄAwæUÀ¼À D¥ÀÛ PÁAiÀÄðzÀ²ðUÀ¼ÀÄ 2. ªÀiÁ£Àå ªÀÄÄdgÁ¬Ä ¸ÀaªÀgÀ D¥ÀÛ PÁAiÀÄðzÀ²ðUÀ¼ÀÄ, «PÁ¸À¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ, 3. DAiÀÄÄPÀÛgÀÄ zsÁ«ÄðPÀ zÀwÛ E¯ÁSÉ, ¨ÉAUÀ¼ÀÆgÀÄ, 4. ¤AiÀÄAvÀæPÀgÀÄ, gÁdå ¥ÀvÀæ E¯ÁSÉ, ¨ÉAUÀ¼ÀÆgÀÄ, 5. f¯Áè¢üPÁj, GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, PÁgÀªÁgÀ, 6. ¸ÀºÁAiÀÄPÀ DAiÀÄÄPÀÛgÀÄ, zsÁ«ÄðPÀ zÀwÛ E¯ÁSÉ, GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, PÁgÀªÁgÀ, 7. G¥À«¨sÁUÁ¢üPÁj, PÀÄªÀÄmÁ vÁ®ÆèPÀÄ, GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, 8. vÀºÀ¹Ã¯ÁÝgï, PÀÄªÀÄmÁ vÁ®ÆèPÀÄ, GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, gÀPÁë PÀqÀvÀ/ ºÉZÀÄÑªÀj ¥ÀæwUÀ¼ÀÄ .”

(emphasis supplied)

41. The perusal of the aforesaid order of handing over of temple would clearly establish the fact that the control and management of the temple was entrusted to defendant No.2 in its “entirety ” and in that view of the matter, the plea raised by plaintiffs that they were continued to perform pooja and upadhi rites subsequent to notification dated 12.08.2008 is not correct and beyond the factual aspect of the case. It is needless to note that, while deciding the issue of injunction, the trial Court ought to have considered the cumulative factors i.e. prima facie, balance of convenience and irreparable loss or hardship. The

Court below ought to have considered the definite findings given on these factors on a legally established principle and in the light of the discussion made above. The impugned order of the trial

Court which confirms to the subject matter of the appeal does not meet the requirements as enunciated by the Hon’ble

Supreme Court in the cases referred to above.

42. I have carefully examined the findings recorded by the trial Court. After considering the law laid down by the 61

Hon’ble Supreme Court with regard to scope and ambit of Order

XXXIX Rule 1 and 2 of CPC and in the light of the facts of the case, in my opinion, the discretion exercised by the trial Court in allowing IA.I is arbitrary, irrational and without considering the series of orders passed by the Hon’ble Supreme Court in Special

Leave Petition No.13806/2019 and therefore, the impugned order passed by the trial Court warrants interference by this

Court on the ground of non-application of mind. Admittedly, defendants had taken a contention in the written statement that plaintiffs are not Upadhivantas, which requires to be proved in the suit. The two notifications issued by defendants inviting applications from competent persons for appointment of

Upadhivantas, was the subject matter before the Division Bench in Writ Appeal No.5131 of 2008 wherein none of the plaintiffs herein or the plaintiffs in O.S.No.1/2016 have participated in the selection process despite this court providing opportunity to the parties. Those two notifications were issued by the defendant

No.2, in the interest of the devotees, as well as the temple in question, and this aspect of the matter was not considered by the trial Court. The trial Court ignored the fact that defendants 62

are managing the affairs of the temple in question since and as such, the plaintiffs having not established ‘prima facie’ and

‘balance of convenience’ before the Court below as well, these two ingredients seeking Temporary Injunction does not lie in favour of plaintiffs, and therefore, it is not a fit case to grant relief of temporary injunction by the trial Court by exercising equitable jurisdiction under the factual circumstances of the case on hand. The trial Court, while granting temporary injunction, ought to have taken note of the fact that it is the paramount consideration of the interest of the devotees as well as the object of Notification dated 12.08.2008 issued by the

Government. In the present proceedings, the main relief sought for by plaintiffs is with regard to claiming compensation/damage and in that view of the matter, claiming the right of

Upadhivanta/Archak in the temple cannot be granted at this stage without affording an opportunity to the parties to prove their respective cases by leading a firm and cogent evidence. It is very strange as to how the trial Court has ignored various orders passed by the Hon’ble Supreme Court, whereunder the

Hon’ble Supreme Court in an identical case filed by another set 63

of plaintiffs in OS No.1 of 2016 and thereafter MFA No.102106 of

2018, in SLP No.13806/2019, has stayed the order of granting of temporary injunction. All these materials were placed before the trial Court by defendants. Though the trial Court has referred to the documents placed by the rival parties before it for consideration on IA.I seeking relief of temporary injunction, however, has not discussed and considered any of the orders passed by the Hon’ble Supreme Court while granting the order of temporary injunction in favour of plaintiffs. Suffice it to say, till date, none of the orders of the Hon’ble Supreme Court are against defendants not only with regard to handing over of the temple to the defendant No.2 by the Government but also the relief sought for by the similarly placed applicant-plaintiffs in

O.S.No.1/2016. It is also essential to take note of the fact that the order passed by the Division Bench of this Court in Writ

Petition No.30609/2008 and connected matters dated 10.8.2018 and the order passed by the learned Single Judge in MFA

No.102105/2018 C/w MFA No.102110/2018 dated 21.03.2019 are stayed by the Hon’ble Supreme Court, and in that view of the matter, the trial Court ought to have applied its mind before 64

rejecting the contention of the defendant-appellants herein. In this regard, the contention of the learned Senior counsel appearing for the appellants requires to be accepted and the arguments advanced by the learned Senior Counsel for the respondents is to be ignored.

43. The jurisdiction conferred under Article 227 of the

Constitution of India, upon this Court is not an appellate one but it is a combination to supervisory and equitable jurisdiction and to do justice and to prevent miscarriage of justice. So also, the power of this Court, while exercising power under XLI Rule 1

CPC, interfere with the discretionary order passed by the trial

Court under Order XXXIX Rule 1 & 2 CPC. It is also noteworthy to follow the law enunciated by this Court, while examining the scope of an appeal filed under order XLIII Rule 1 of the Code of

Civil Procedure in the case of LALITHAKSHI ANNADANAGOUDA v.

SADASHIVAPPA BASAPPA AND ANOTHER reported in 1983(2)

KLJ 298 and in the case of IIM EMPLOYEES ASSOCIATION

(supra). I am conscious of the proposition of law that the

Appellate Court can interfere with an order of the trial Court, 65

only when it finds that the order passed is opposed to the well- settled principles in exercise of judicial discretion. Consequently, the factum of other two ingredients, viz. balance of convenience and irreparable loss and injury, have been found to be in favour of the defendant-appellants, inasmuch as plea which has been now put up by the plaintiffs for granting interim order of injunction to restrain defendants from interference would definitely cause irreparable loss and injury to the defendants and as such it is to be held that the balance of convenience lies in favour of defendants rather than favouring plaintiffs by looking into the factual aspects of the averments made in application

IA.I.

44. It is pertinent to mention here that, the Court should abstain from making an interlocutory order, which has the effect or tends to be susceptible of an inference of prejudicing some of the important and delicate issues that require to be decided in the main matter.

45. It is also relevant that while granting temporary injunction the Court must be satisfied that there exists not only 66

‘prima facie’ and ‘balance of convenience’, but also irreparable loss or hardship to be caused from the injury before legal right can be established and greater inconvenience is also likely to be caused by withholding it than by granting it. The existence of prima facie case alone is not the sole criteria for issuance of temporary injunction. The trial Court must examine the facts of each case to decide whether an injunction would be granted or not. The object of interim injunction is to keep things in status- quo. Existence of right is condition precedent to grant or refuse temporary injunction. Perusal of paragraphs 3 and 5 of the plaint with relief of compensation sought for in the suit itself is sufficient to disentitle the plaintiffs for granting of relief of temporary injunction under the facts and circumstances of the case. Admittedly, the Government Order dated 12.08.2018 passed by the State Government taking over the affairs of the temple in entirety, cannot be disputed at this stage by the parties to the proceedings since the matter is subjudice before the Hon’ble Superme Court. The defendants have questioned the hereditary rights of the plaintiffs to perform pooja. The suit is only for bare injunction and compensation, not for declaratory 67

reliefs. The earlier orders passed by this Court mentioned above are stayed and pending consideration before the Apex Court as stated supra. The main prayer in the suit claiming compensation/damages by plaintiffs presupposes that, they are not performing pooja/upadhi rites, even as on the date of filing of the suit. The legal right, which is a condition precedent for granting temporary injunction in favour of plaintiffs being not established in the plaint or in the affidavit accompanying application IA.I establish the fact that plaintiffs are not entitled for reliefs claimed in IA.I, and therefore, the impugned order is liable to be rejected.

46. It must be the endeavour of the Trial Court, while granting or refusing temporary injunction in favour of the plaintiffs, to look into the order of the Hon’ble Apex Court and also it is its bounden duty and obligation to critically examine the pleadings and documents of the parties in the light of interim orders of stay passed by the Hon’ble Apex Court, and thereafter, pass an order of temporary injunction while taking into account the pragmatic realities including the interest of the devotees of 68

the temple as well as interim orders passed by the Hon’ble

Supreme Court referred to above. Indeed, it is the Courts prime concern to do substantial justice. I am of the considered opinion that the finding recorded by the trial Court in favour of the plaintiffs is not on proper appreciation of material on record and as such impugned order would call for interference by this Court in exercise of supervisory jurisdiction also. It is needless to state that the trial Court ought to have carefully considered the material produced by both the parties adverting to merits on considering the application IA.I. While considering the application for temporary injunction, the trial court is required to consider not only the pleadings of the plaintiffs and their documents, but also pleadings of defendants and their documents, if any, filed by them. Though the defendants have produced the relevant orders passed by the Hon’ble Supreme

Court in identical matters, the Trial Court should have considered the same cautiously and on thorough examination of such orders of the Hon’ble Supreme Court, and should have passed orders on

IA.I. I am so conscious to express my displeasure as the trial

Court ought not to have passed the impugned order which would 69

be in conflict with the orders of the Hon’ble Apex Court in the instant case, and therefore, the interference is called for in these appeals. In that view of the matter, the consideration of Points

1 and 2 stated above, is favoured towards the defendants and thereby, findings recorded by the trial Court on IA.I calls for interference in these appeals.

47. This Court in the case of REEBOK INDIA COMPANY

VS. GOMZI ACTIVE reported in ILR 2006 (KAR) 3961 at paragraphs 15 and 19 held as follows;

“15. A party would be entitled to relief under Order 39 Rules 1 and 2 provided it satisfies the Court that it has a prima facie case; that balance of convenience is in his favour and that irreparable loss and injury would be caused to him if interim relief is not granted. The aforesaid three phrases, as emphasised time and again, are 'not rhetoric phrases but elastic words to meet a wide range of situation in given set of facts and circumstances'. The burden is always on the plaintiff/applicant to satisfy the Court that a prima facie case exists in his favour. The court must further satisfy itself that non-interference by the Court would result in irreparable injury to a party seeking relief. Irreparable injury means that the injury must be a material one, one that the Court cannot adequately compensate by 70

way of damages. The Court is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury which is likely to be caused to one party if injunction is refused and compare it with mischief or injury that is likely to be caused to the other party if the injunction is granted. Grant of temporary injunction entails serious consequences on the party against whom it is issued. Therefore, it cannot be lightly ordered unless the requisite conditions and circumstances are established by the person who seeks protection.

16. xxx xxx xxx

17. xxx xxx xxx

18. xxx xxx xxx

19. The judgments relied on by the counsel appearing for the respondent are not applicable to the facts of the case, as stated herein above. The conclusion reached by the court below is totally baseless and perverse. If wrong principles are applied by the trial court under Order 39 Rule 1 CPC while granting temporary injunction, the appellate court can certainty interfere in interlocutory proceedings. Here, the trial court has not applied the established principles regarding the passing off action while finding out the prima facie case .” 71

48. It is settled principle of law that discretion of the

Court, while granting order of temporary injunction in favour of the plaintiffs, must meet following requirements:

(i) Existence of prima facie as pleaded necessitating protection of rights of issue of temporary injunction.

(ii) When the need for protection of plaintiffs rights is compared with or weighed against the need for protection of defendants rights or material infringement of defendants rights, the balance of convenience in favour of the plaintiffs or defendants.

(iii) Clear possibility of irreparable injury being caused to the plaintiffs if the temporary injunction is not granted. In addition the temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approaches the Court with clean hands.

49. In this regard, the fact remains that the application in IA.I seeking temporary injunction was filed before the trial

Court in the year 2014, and thereafter, the same was heard and 72

disposed of on 19.02.2020. In that view of the matter, the two vital factors to be considered while granting temporary injunction is balance of convenience and irreparable injury. There is no controversy that the plaintiffs are not performing pooja as on the date of filing of the suit as per averments made in paragraphs 3 and 5 of the plaint, so also, by looking into the main relief of damages sought for in the suit as well as Government Order dated 12.08.2008 handing over the entire administration of the temple to the custody of defendant No.2. Though the plaintiffs have averred in the plaint that they are performing pooja in the temple as on the date of filing of suit, however, if at all they are performing the pooja as contended by them, then the plaintiffs ought not to have sought for damages of sum of Rs.5,70,000/- with interest @ 12% per annum in the suit. It is stated that, claiming damages is one of the reliefs in the suit which would indicate the fact that plaintiffs are out of temple for a considerable period and if at all any relief of temporary injunction has to be granted the interim relief should be in aid to the main relief and on this ground alone, the impugned order requires to be set aside. In addition to this, since the plaintiffs 73

have impliedly not filed the applications for appointment of

Upadhivantas in the temple pursuant to the notification issued by the defendant No.2 as well as direction issued by the Division

Bench of this Court in Writ Appeal No.5131 of 2008, the same would clearly establish the fact that the plaintiffs are not in continuance performance of pooja or upadhi rites as urged in the plaint. In that view of the matter, the plaintiffs have not made out a prima facie case and as such, the impugned order is erroneous and contrary to the law established by the Hon’ble

Supreme Court in the case of GUJARAT BOTTLING CO. LTD (supra) .

50. After carefully considering the facts and circumstances of the case, I am aware about my limitation to interfere with the impugned order and cautioned with the well settled principle of law that, neither the trial court nor the appellate court shall conduct a mini trial at the time of consideration of injunction application. Equally, it is true that the appellate Court cannot substitute its own discretion with the discretion exercised by the trial Court if it is legal and proper.

However, upon following the law declared by the Hon’ble 74

Supreme Court in the case of AJAY MOHAN AND OTHERS v. H.N.

RAI AND OTHERS reported in AIR 2008 SC 804, I am of the opinion that, the plaintiffs fail to establish that balance of convenience lay in their favour and they would suffer irreparable injury or hardships. In the facts and circumstances of the case, it shall be concluded, that, at present, the balance of convenience weighs in favour of the defendants in view of the discussions made above. It is needless to say that, if the impugned order is affirmed, the plaintiffs shall not be prejudiced in any manner whatsoever in nature and on the other hand, pursuant to the notification issued by the Government dated 12.08.2008, the custody of the entire temple in question and managing the affairs of the temple was handed over to the defendant No.2 and as such, it would affect the day to day management of the temple in question. In addition to this, the court must weigh all the factors and situations while considering the application under

Order XXXIX Rule 1 and 2 of CPC preferably, in the instant case, the consequence of issuance of temporary injunction would affect major portion of the society (devotees in this case). If the impugned order is allowed to be continued, irreparable loss 75

would be caused to defendants. The High Court of Calcutta in the case of SK. KHURSED AND OTHERS v. SK. MANTAJUDDIN

AND OTHER S reported in 2016(2) (CAL) 421, at paragraph 7 of the judgment held as follows;

“7. I have gone through the said decisions. From the time immemorial it is settled by our Courts that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto viz. existence of a prima facie case, balance of convenience, irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. It is to be judged also that grant or refusal of injunction has serious consequence depending upon the nature thereof. The existence of the prima facie right is not to be confused with the prima facie title which can be ascertained on the basis of evidence at the time of trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself can never be the sole ground to get an injunction order. Therefore, the onerous duty of the Court is to satisfy itself that non-interference by the Court would result in irreparable injury to the party seeking relief must establish that there is no other remedy available to the party except one grant to injunction. It is also a 76

settled law that irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, which cannot be adequately compensated by way of damages. This apart, the Court is to weigh the balance of convenience and inconvenience. Therefore, the Court while granting or refusing to grant injunction should exercise the judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status qua, an injunction would be issued .”

51. In the light of the discussions made above, it is also relevant to follow the law declared by the Hon’ble Supreme

Court in the case of DAPLAT KUMAR AND ANOTHER v. PRAHLAD

SINGH AND OTHERS reported in AIR 1993 SC 276, wherein, at paragraph 6 of the judgment, it is observed thus:

“The phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity 77

in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. ”

52. While considering the conduct of the parties insofar as granting or refusing the application for temporary injunction, it is relevant to follow the law declared by the Hon’ble Supreme

Court in the case of MANDALI RANGANNA AND OTHERS v. T.

RAMACHANDRA AND OTHERS reported in (2008)11 SCC 1. It reads thus:

“While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto viz. existence of a prima facie case, balance of convenience of irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quit for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very value one. Grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the 78

said purpose, application of mind on the part of the courts is imperative. ”

53. The cardinal principle for grant of temporary injunction was considered recently by the Hon’ble Supreme

Court in the case of AMBALAL SARABHAI ENTERPRISE LIMITED. v. KS INFRASPACE LLP LIMITED AND ANOTHER and connected cases reported in AIR 2020 SC 307, and at paragraph 23 of the

judgment, it is observed as follows:

“23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545, observing as follows:

“47….Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest….” 79

54. On elaborate consideration of the law enunciated by the Hon’ble Supreme Court as discussed above and on application of the same to the facts of the case on hand, it is to be noted that this Court shall apply concept of balance of convenience in favour of the defendants under the circumstances of the case and the trial Court while allowing the application on

IA.I, ignored the principle of balance, of convenience and the prejudice to be affected to the parties and in this regard, order impugned in this appeal requires to be set aside. It is relevant to mention here that, consequence of order depending upon the nature of the suit, the court must make all endeavours to protect the interest of the parties by evaluating the interest of the public at large and in the instant case, essentially, the interest of the devotees is paramount.

55. It is necessary to mention here that, the Hon’ble

Division Bench of this Court in Writ Appeal No.5131/2008, has directed all persons having requisite qualification for performing upadhi rites and/or all those who are hereditary Upadhivantas to 80

make application to the temple administration run by the defendant No.2 and to provide proof of their right of

Upadhivantas and the said aspect of the matter was not considered in detail by the trial Court while granting an order of temporary injunction, which warrants interference in the present case. After appreciating the material on record, it is difficult to come to conclusion that the plaintiff-respondents have a strong prima facie case to have an order of injunction and that the balance of convenience is in their favour. The trial Court has ignored the fact that the order passed by this Court referred to in MFA No.102105 of 2008 and connected matters was stayed by the Hon’ble Supreme Court. Ignoring such orders passed by the

Hon’ble Supreme Court, amounts to non-consideration of the relevant material by the trial Court and accordingly, issuance of order of temporary injunction in favour of plaintiffs is bad in law.

56. The suit was filed in the year 2014 along with application IA.I seeking temporary injunction and defendants filed written statement and objections to IA.I on 09.10.2014, and the impugned order was passed on 19 th February, 2020, 81

after a lapse of nearly five years. Though the case was transferred from Civil Judge, Kumta to Principal District and

Sessions Judge, Karwar by virtue of order dated 19.01.2016 passed in Writ Petition No.59527/2015 by this Court; however, the trial court ought to have made all endeavours to dispose of the pending application (IA.I) at the earliest. In a word of caution to the trial Courts, I am of the considered view to express that the trial Courts which are seized of the civil suit, shall decide the application for injunction as early as possible, preferably within a reasonable period at the discretion of the

Court. If the Courts do not expedite in considering the temporary injunction applications, the intention of the legislature as well as the scope of order XXXIX Rule 1 and 2 CPC would be rendered redundant. Equally, the one who has filed such application, must show eagerness in disposing of the application instead of keeping the same for consideration of the Court at a belated stage.

57. I have carefully gone through the law declared by the Constitution Bench of the Hon’ble Supreme Court in the case 82

of SHESHAMMAL (supra) whereunder the Hon’ble Supreme Court observed that the appointment of Archaka is a secular and the fact that in some temples hereditary principle was followed in making appointment, would not make successive appointment nothing but secular. The public interest is involved in managing the affairs of the temple would be of greater importance than the appointment of a particular caste.

58. This Court had an occasion to examine the power of the court below with regard to granting or refusing temporary injunction in the case of LAKSHMINARASIMHIAH AND OTHERS v.

YALAKKI GOWDA reported in ILR 1965 MYS 40. I have carefully examined the principles laid down by this Court in the aforesaid case. After considering the rival submissions made by the learned Senior Counsel appearing for the parties, I am aware about the limitations and interference of the appellate Court insofar as the discretionary powers exercised by the trial Courts like order of granting or refusing of temporary injunction by the trial Court. The court of appeal has to consider whether the trial

Court has properly exercised its discretion within the parameters 83

of law inter alia the appellate Judge should not encroach the upon the rights of the parties in the case as if he were the trial

Judge. The granting or refusing of injunction is a matter resting in the sound discretion within the trial Court and consequently, no injunction will be granted whenever it would operate oppressively, or inequitably or contrary to the real justice of the case. Having regard to the discussion made above, I am of the considered view that the impugned order do not conform to the principles laid down by the Hon’ble Supreme Court and this

Court, with regard to exercising its discretionary powers while examining the application under Order XXXIX Rule 1 and 2 of the

Code of Civil Procedure and therefore, the impugned order is liable to be set aside.

59. The law declared by the Hon’ble Supreme Court in the case of KISHORE KUMAR KHAITAN AND ANOTHER (supra) is aptly applicable to the case on hand, as the trial Court ought to have given a finding to the fact whether the plaintiffs have proved that they were continued to perform pooja/upadhi rites in the temple in question as on the date of the suit and in view of 84

the same, the plaintiffs have not made out a prima facie case, and as such the finding recorded by the trial Court in this regard is contrary to the law declared by the Hon’ble Supreme Court.

60. I have perused the law declared by this Court in the case of KRISHNAPPA (supra) passed in Writ Petition No.37178 of

2017 whereunder this Court, while considering the order of the trial Court passed in respect of application for temporary injunction, has observed that the court below, while considering such application for temporary injunction, shall examine the documents produced by the parties before arriving at any conclusion as such, and in that view of the matter, the impugned order in these appeals suffers from infirmity as the trial Court merely cited the documents produced by the parties, however, failed to appreciate and examine those documents vis-à-vis, failed to consider the interim orders passed by the Hon’ble

Supreme Court in the special leave petitions referred to above.

In that view of the matter, ignoring relevant material by the trial

Court amounts to non-application of mind and considering irrelevant aspects for passing the impugned order could not be 85

construed as ‘prima facie’, as stated by the trial Court. Suffice it to say that, learned Senior Counsel for the appellants rightly argued that, as per the averments made in paragraphs 3, 5 and

8 of the plaint, as on the date of filing of the suit, admittedly, plaintiffs were not performing upadhi rituals/pooja since 12 th

April, 2014 and therefore, the law declared by the Hon’ble

Supreme Court in the case of KISHORE KUMAR KHAITAN AND

ANOTHER (supra), is aptly applicable to the facts of these cases.

61. In view of the discussion made above, the impugned order passed by the trial Court on IA.I suffers from infirmity and amounts to irrational exercise of discretionary powers by the trial Court. If wrong principles are applied by the trial Court under Order XXXIX Rule 1 and 2 of CPC while granting temporary injunction, like the case on hand, the appellate court can certainly interfere in such interlocutory proceedings, and hence the impugned order is liable to be set aside. In that view of the matter, Point No.3 is held against the plaintiff-respondents and answered in the favour of defendant-appellants. Hence, the following: 86

ORDER

(i) Appeals are allowed;

(ii) The order dated 19.02.2020 under challenge is

set aside and consequently IA.I in Original Suit

No.2 of 2016 on the file of Principal District and

Sessions Judge, Uttara Kannada, Karwar is

rejected.

(iii) It is made clear that the observation made

hereinabove are only for the purpose of the

disposal of the application IA.I seeking

temporary injunction and shall not affect the

disposal of the matter on merits by the trial

Court.

(iv) The trial Court shall dispose of the case as early

as possible.

Sd/- JUDGE

Msr/lnn