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IN THE HIGH COURT OF , DHARWAD BENCH DATED THIS THE 7 TH DAY OF SEPTEMBER, 2015

BEFORE :

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

W.P. Nos. 108683-198684/2015 (GM-POLICE)

BETWEEN:

1. VISHNU LAKSHMINARAYAN BHAT, A/A 58 YEARS, HEREDITARY ARCHAKA/ PRIEST OF SHRI VINAYAK DEV TEMPLE, IDAGUNJI, TALUK, U.K. DIST.

2. LAKSHMINARAYAN VISHNU BHAT, A/A 22 YEARS, HEREDITARY ARCHAKA/ PRIEST OF SHRI VINAYAK DEV TEMPLE, IDAGUNJI, HONNAVAR TALUK, U.K. DIST.

BOTH R/O IDAGUNJI, HONNAVAR TALUK, U.K. DIST. - PETITIONERS (BY SRI. A.P. HEGDE JANMANE, ADVOCATE)

AND:

1. SUPERINTENDENT OF POLICE, UTTARA DISTRICT, .

2. CIRCLE POLICE INSPECTOR, HONNAVAR, U.K. DIST.

3. SUB INSPECTOR OF POLICE, MANKI POLICE STATION, HONNAVAR, U.K. DIST. - RESPONDENTS (BY SMT. K. VIDYAVATI, A.G.A.) 2

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF , PRAYING TO QUASH THE IMPUGNED NOTICES ISSUED BY RESPONDENT NO.3 DATED 06.07.2015 VIDE ANNEXURES J & K AND ETC.

THESE WRIT PETITIONS HAVING RESERVED FOR PRONOUNCEMENT OF ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT PASSED THE FOLLOWING:

ORDER

1. The petitioners have approached this Court seeking the following reliefs.

I. Quashing the impugned notices issued by Respondent No.3 dated 06.07.2015 (Annexures J & K) in the interest of justice and equity; II. To direct the respondents to refrain from interfering with the hereditary archakship rights of petitioners as declared by District Court, Karwar and allow the petitioners to continue with the exercise of their right within the precincts of Shri Vinayak Dev temple of Idagunji, in the ends of justice; and III. Pass such other orders as this Hon’ble Court deems fit under the facts and circumstances of the case including the award of costs in the interest of justice and equity. - - - 3

2. This Court had directed the learned Additional

Government Advocate to take notices for the respondents. Subsequently, the respondents through the Additional Government Advocate have filed their statement of objections.

3. I have heard the detailed arguments addressed by the learned counsel for the petitioners and also the learned Additional Government Advocate. I have carefully perused the records produced for consideration of this Court.

4. The brief factual matrix as could be seen from the records are that, the petitioner no.1 is no other than the father of the petitioner no. 2 and they claim to be the hereditary archaks of Sri Vinayaka Temple, Idagunji of

Honnavara Taluk, District. Father of the petitioner no.1 by name Lakshminarayana son of

Vishnu Bhat has filed a suit along with his two brothers 4

in O.S. No. 52/1994 before the Civil Judge Court at

Karwar for declaration that they are the hereditary archaks of Sri Vinayaka Temple, Idagunji, that they were not appointed by anyone and their family are entitled for performing pooja, seva, utsava and all viniyogas and also to receive emoluments from the devotees and also for consequential injunction against the temple trustees and its erstwhile members.

Subsequently the said suit was renumbered as O.S.

No.10/2001. The said suit came to be decreed in favour of plaintiffs therein granting the reliefs as prayed for.

Being aggrieved by the said judgment and decree the defendants (not parties before this Court) have preferred an appeal before the District Judge, Karwar in R.A. No.

66/2006 and R.A. No. 72/2006. Those appeals were clubbed and common judgment was rendered vide judgment dated 04.01.2008 wherein the appeals were dismissed. Against the said judgment and decree again 5

the aggrieved defendants have preferred R.S.A. Nos.

131/2008 and 132/2008 before this Court and vide judgment dated 15.07.2008 they were also dismissed confirming the judgment and decree passed by the

District Court, Karwar. Being aggrieved by the said judgments in R.S.As the defendants preferred Civil

Appeals before the Hon’ble Supreme Court in Civil

Appeal Nos.5899 and 5900/2008. These factual aspects are not in dispute.

5. As could be seen from the orders of the Apex

Court, though the Apex Court has not granted stay of the judgment passed in the Regular Second Appeals, but on 22.09.2008 after hearing the counsels, the Apex

Court has passed the order that:

“The petitioners have sought stay of the judgment of the High Court dated 15.07.2008 in which the order of the first appellate Court has stood merged. 6

We have heard the learned counsel for the petitioners and the learned counsel for the caveators-respondents. We are of the view that interest of justice would be served if purely as a temporary arrangement pending disposal of the appeal, the respondents are permitted to have the emoluments which is recognized and granted by the first appellate Court (affirmed by High Court) but only through the temple management and not directly. Any dakshina in the form of tastik, phalavali, padiakki and panchakajjaya, which the first appellate Court has recognised to be the emoluments of the respondents shall be received only through the temple management. The Archaks appointed by the trustees, if they are in service, shall work under the respondents and their emoluments will be paid by the temple.” - - - Again on 21.11.2008 the Apex Court has passed the following order.

“The interim order dated 22.09.2008 makes it clear that only the respondents have been permitted to perform pujas. They cannot therefore depute anyone 7

else to do discharge their functions. This Court also made it clear that Archaks appointed by the trustees shall be permitted to work under the respondents. This Court has directed that the respondents shall receive the emoluments only through the temple management. This clearly means that for whatever they receive from the management, the respondent should give acknowledgement receipt. Learned counsel for the respondents stated that respondents have discontinued collecting money directly from devotees and that they are no longer issuing receipts. The said statement is recorded. In view of the above, no modification of the interim order is called for. Accordingly, I.As. 3, 4 & 5 are disposed of.” - - -

On 07.10.2013 also the Apex Court has passed the following order.

“There is inter section dispute amongst trustees and also there is dispute between the parties on the aspect of the management of the temple. One party says that management is now vested in the Government (Endowment Commissioner), but the other party denies this. 8

In view of this, let notice be issued on the applications to the State of Karnataka through Endowment Commissioner as party respondent. Amended cause title shall be filed within one week. Notice shall be issued by the Registry to the newly impleaded respondent returnable on December 6, 2013. In the meanwhile, reiterating earlier orders, it is directed that respondent Nos.1 to 5 shall not receive money from the devotees and shall perform pujas in this regard as per schedule settled by the temple management and as directed in the earlier orders of this Court. If there is any breach, the aggrieved party may make representation to the Superintendent of Police, Uttar Kannada, Karwar, Karnataka. It is further observed that the Superintendent of Police, Uttar Kannada, Karwar, Karnataka shall inquire into the representation so received and take appropriate action to ensure that the orders of this Court are obeyed by all concerned.” (emphasis supplied) - - -

6. The facts stand thus, the order passed by the

Apex Court dated 07.10.2013 (underlined portion) 9

clearly disclose that respondent nos.1 to 5 shall not receive money from the devotees, shall perform pujas in this record as per the schedule settled by the temple management and as directed in the earlier orders of the

Court. If there is any breach, the aggrieved party may make representation to the Superintendent of Police,

Uttara Kannada and the Superintendent of Police shall enquire into the representation and take appropriate action to ensure that the orders of the Court are obeyed by all the concerned. It clearly disclose that by means of giving such direction to the Superintendent of Police the Hon’ble Apex Court itself has been visualizing the affairs of the temple.

7. In this background it appears the Police have issued a notice on 06.07.2015 (impugned notice under this petition) to the present petitioners stating that there is violation of order of the Apex Court. The petitioners being not respondents before the Apex Court were 10

participating in the puja kainkaryas which was witnessed through videograph. Therefore, though the petitioners were not archaks of the said temple, they have performed puja and thereby violated the orders of the Apex Court dated 07.10.2013. Therefore, the Police have requested them to give explanation in writing to the said notice. The petitioners, in fact, have given a reply to the said notice dated 08.07.2015 stating that they have received notice issued by the Police and they have also admitted pendency of the case before the Apex

Court but they say that father of the petitioner no. 1 who was respondent no.1 before the Apex Court, died and thereafter the petitioners were not brought on record as LRs before the Court. As such, the said appeal abated and came to an end against them.

Therefore, they have got right to perform hereditary puja, etc. After receiving of the said reply, it appears the Police have not taken any action against them. This 11

particular aspect is also clearly reiterated in the objection statement filed by the respondents herein.

8. It is worth to note several important aspects noted in the statement of objections filed by the respondents.

It is stated at paragaph no. 5 of the statement that the

Apex Court in Civil Appeal Nos. 5899 and 5900/2008 vide orders dated 07.10.2013 directed the

Superintendent of Police to enquire into the representations received by the parties complaining about breach of the order of the Apex Court.

9. It is further stated at paragraph no. 6 that the

Superintendent of Police through his authorities has only taken necessary action to see that the puja work at temple was carried out peacefully, without any disturbance as per the direction of the Apex Court. The trustees of the temple gave representations to the

Superintendent of Police making allegations that the 12

respondents before the Supreme Court have committed several breach of the order dated 07.10.2013 stating that the respondents have not performed puja and had engaged unauthorized assistants to do the work, etc. and the archaks were collecting money from the devotees in contravention of the direction issued by the

Apex Court. In pursuance of the said complaint the

Superintendent of Police held meeting on 29.11.2013 and the trustees and other archaks who were impleaded as respondents in the Supreme Court were also present.

The Superintendent of Police issued directions to both the parties to comply orders of the Supreme Court strictly.

10. It is further submitted that the pujas are carried out peacefully and in compliance with the direction of the Court. Another meeting was also held on

16.07.2014. Once again similar direction was issued to the parties. In this background, it is stated in the 13

objections that, on 11.05.2015 the first respondent received a notice from the Apex Court in a Contempt

Case nos. 175-176/2015 filed by Kashinath Ganesh

Hegde and others. The trustees made allegations that the respondent no.1 inspite of the direction by the Court allowed the respondent Archaks to violate the directions issued by the Apex Court, has not taken any action and the first respondent appeared before the Supreme Court on 01.07.2015 and filed detailed reply.

11. It is further submitted that in the Contempt

Petition Nos. 419-420/2015 filed both by Heriditary

Archak, i.e., those who have impleaded as respondents in the civil appeals. By virtue of the said contempt petitions to take appropriate action, a notice was issued by the Archaks on 23.06.2015 and 24.06.2015. In view of the said notices, the Superintendent of Police further held meetings on several dates, i.e., on 05.07.2015,

07.07.2015, 10.07.2015, 16.07.2015 and 01.08.2015 at 14

Manki Police Station and discussed in detail with regard to the happenings at the temple. In the said meetings some of the archaks were absent. After the meetings, the Police have not prevented the archaks from performing their legitimate duties but they have only taken action as per the direction of the Apex Court to ascertain what was going on in the temple. Therefore, they have not done anything against the interest of the parties to the Civil Appeal and Police have to intimate to the Apex Court with regard to the existing facts.

12. The above said objections submitted by the respondents clearly disclose that they are no way concerned with the merits of the case but only concerned with the directions issued by the Apex Court.

In this background, the contentions raised by the learned counsel before this Court as raised in the memorandum of petition has to be taken into considered. 15

13. It is contended in support of the petition that the father of the petitioner no. 1 (respondent no.2 before the

Apex Court) Sri Lakshminarayan son of Vishnu Bhat died on 18.02.2013 his legal representatives, i.e., petitioners, have not been brought on record.

Therefore, the appeal abated against respondent no. 2.

Hence, the interim orders of the Supreme Court are not binding on the petitioners. Therefore, the Police have no jurisdiction to issue notice to them insisting them to comply with the orders of the Apex Court.

14. Secondly it is urged before this Court in view of the abatement of the appeal the judgment rendered by the original Court in O.S. No. 10/2001 as confirmed in

R.A. Nos. 66/2006 and 72/2006 come to the aid of the petitioners. Therefore, the orders of the Apex Court is not binding upon them and the judgment of the first appellate Court and the second appellate Court is in their favour. Therefore, the Police cannot issue any 16

notice and interfere with their rights accrued under the above said judgments. It is contended that the respondents are preventing the petitioners from performing pujas, viniyogas in Sri Vinayaka Temple,

Idagunji as hereditary archaks by issuing such notices and also interfering with their rights. Hence, they were forced to file the above writ petition.

15. The learned counsel also contended that, under

Order XXII Rule 9 of CPC the abatement takes place immediately which amounts to statutory abatement.

Unless the said abatement is set aside the judgment of the trial Court and the first appellate Court comes to the aid of the petitioner. In this regard he relied upon a decision reported in AIR (SC)-1983-0-676 (MADAN NAIK

VS. HANSUBALA DEVI), wherein the Apex Court has observed that:

“There is no specific order for abatement is envisaged under Order 22. An Order refusing to 17

set aside abatement is specifically appelable as an order under Order 40, Rule (K) not fall within the definition of “Decree” in Section 2(2). Therefore, no second appeal under Section 100 would lie against that order. But, the dismissal of the second appeal as being incompetent will not have any impact on the disposal on merits of the appeal from the order under Order 43, Rule 1(K). Setting aside abatement and granting substitution decision would remain unimpaired unaffected by the dismissal of the second appeal on ground that was either incompetent or infructuous. Division Bench was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infractious.” - - -

16. The Apex Court has observed in the above said decision that the parties to the proceedings have not brought to the notice of the Court the death of the parties to the proceedings. Therefore, the statutory abatement comes into picture. 18

17. In view of the above said decision the learned counsel submitted that the petitioners being hereditary archaks succeeded to the rights of the second respondent before the Apex Court, against whom the appeals before the Supreme Court has already abated.

Therefore, their rights cannot be impaired by the respondent no.1. Hence, prayed for allowing of the petitions.

18. Let me first examine the above said contentions raised by the learned counsel, one by one.

19. The contention of the petitioners is that father of the first petitioner and grandfather of the second petitioner respectively died on 18.02.2013. Therefore, the appeal before the Supreme Court has abated. As such, the order passed by the original Court and also the first appellate Court and also the judgment passed in the regular second appeals are concluded so far as 19

the petitioners are concerned. As they are the legal heirs of the said Lakshminarayana and they are the hereditary archaks they should not be prevented by the

Police in any manner.

20. The records produced by the petitioners themselves establish that the orders passed by the Apex

Court noted above dated 22.09.2008 and 21.11.2008 were passed during the lifetime of the second respondent before the Apex Court, who is the father of the first petitioner. It appears, on 07.10.2013 the Apex

Court has passed the orders as noted above authorizing the Superintendent of Police to enquire into the representations and to take appropriate action to enquire with the orders of the Supreme Court is obeyed by all the concerned. As on that particular date the second respondent is dead but the Advocates who are appearing for the appellants and the respondents have not informed the Apex Court with regard to the death of 20

the second respondent. The counsel for the respondent no.2 continued to represent the second respondent and

Court specifically mentioned that, upon hearing the counsel the Court has passed such orders. In this background, what was the duty cast on the counsel for the respondent is to be looked into. Order XXII Rule

10A of CPC caste burden on the pleader appearing for the party to communicate death of a party, which reads as under:

“R. 10A. Duty of pleader to communicate to Court death of a party. – (1) Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice to such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.” - - -

21. The object of the above said rule is intended to avoid delay in making application under the rules to bring the legal representatives on record. This provision 21

was introduced by way amendment to Code of Civil

Procedure in the year 1977. Subsequently, to mitigate the hardship arising from the fact that the party may not come to know about the death of the other party during the pendency of any civil proceedings, by way of this amendment a mandatory duty has been cast upon the learned Counsel appearing for the party who is dead, to intimate the Court about the death of the party represented by him. For this purpose, this deeming fiction has been introduced by the amendment to the effect that the contract between the dead client and the

Lawyer subsist to the limited extent even after the death of a party. It is also to be borne in mind that, Rule 10A of the CPC has been introduced in order to avoid procedural justice scoring a march over substantial justice. In view of the above said provision, the petitioners who knew about the pendency of the case before the Apex Court and that their father/ grandfather 22

was being represented by a counsel should have immediately intimated their counsel and in turn the counsel should have intimated the Apex Court about the death of the second respondent. But, that has not been done in this particular case. Even for a moment accepting the arguments of the learned counsel that the abatement has taken place. The effect of abatement is enshrined under Order XXII Rule 9 of CPC, which reads as under:

“R.9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set 23

aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the “Indian limitation Act, 1877 (XV of 1877), shall apply to application under sub-rule 92). Explanation.- Nothing in this rule shall be construed as barring, in any later suit, a defence on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.) The above provision mutatis mutandis applicable to appeals as per Order XXII Rule 11 of C.P.C.

22. The first part of this provision says that where a suit abates or dismissed under this Order, it only bars a fresh suit by parties on the same cause of action. That means to say that, the parties are prevented by filing any fresh suit against each other. The second part of the said provision clearly discloses who are all the persons entitled to bring it to the notice of the Court and bring the legal representatives on record. It clearly 24

says that the plaintiff or the appellant as the case may be, has to bring the legal representatives of the deceased defendant or respondent on record or it also empowers a person claiming to be the legal representative of the deceased plaintiff or appellant or assignee or the receiver can also file an application under the said provision for setting aside the abatement or dismissal of the case for further proceedings.

23. On a combined meaningful reading of Order XXII

Rule 10A and Order XXII Rule 9, it clearly goes to show that the legal representatives of a deceased party to the proceedings has to inform their counsel to intimate the same to the Court about the death of one of the parties to the proceedings. Inspite of bringing it to the knowledge of the Court and the opposite party, if the legal representatives of the deceased person have not been brought on record, then the person who claims that a right to sue survives to him and he is entitled to 25

continue in the proceedings, can also make an application to proceed with the case. In this particular case though the petitioners have knowledge about their father / grandfather defending the appeal before the

Supreme Court but they have not brought to the notice of the Court through their counsel the death of the second respondent therein. Therefore, they cannot claim, in my opinion, any equity that the order passed by the Apex Court does not bind them at all.

24. Another important aspect to be taken note of in this case is that, it is the relief sought against the Police

Officers. The Court has to analyze how these Police

Officials are liable to the petitioners. It goes without saying that the Apex Court has specifically directed vide orders dated 07.10.2013 directing the Superintendent of

Police to enquire into any representations if there is any violation of the orders passed by it on several occasions.

Therefore, in order to implement the orders of the Apex 26

Court the Police have taken action and issued notices to the petitioners and secured the objections given by them. But, thereafter it appears that, they have not passed any orders, directing the petitioners in any manner preventing their work. There is no material to exactly show that the Police have taken any coercive steps against the petitioners. Moreover, the Police are not the competent authorities to decide the issue whether the petitioners are the hereditary archaks and they are the legal representatives of the deceased second respondent before the Apex Court. It is the judicial Courts which have to pass appropriate orders with regard to the heirship of a person who died during the pendency of any civil proceedings. Therefore, merely because the petitioners claim that they are the legal representatives or heirs of the second defendant, the Police cannot take cognizance of the same and take any action in that regard without the order of the Court. 27

Therefore, in that line also the petitioners have no cause of action so far as the respondents are concerned.

Moreover the Police are executing their works in accordance with the directions of the Apex Court. They have to inform from time to time to the Apex Court what exactly the steps taken by them in order to ensure that the orders of the Apex Court are obeyed by all the concerned.

25. In view of the above said facts and circumstances of the case, I am of the opinion the petitioners have no right to file this petition against the Police. If at all they have got any grievance they have got an alternative remedy to approach the Apex Court by bringing the factum of death of second respondent to the knowledge of the Apex Court and seek for modification of any order passed by the Apex Court. 28

26. In this regard, the respondents in their statement of objections have stated that they never prevented any hereditary archaks from discharging their duties as per the direction of the Apex Court. It is also stated that several persons have filed contempt petitions against the Police in Contempt Case Nos. 419-420/2015, in which the Police have to file detailed reply. Therefore, when such proceedings are pending before the Apex

Court, if really the Police have prevented the petitioners from discharging their duties as hereditary archaks, they have to bring it to the notice of the Apex Court in order to secure any remedy legally available to them.

27. Therefore, in my opinion, when alternative and efficacious remedy is available to the petitioners they cannot move this Court by way of a writ petition particularly when the respondents who are public servants discharging their duties in accordance with the direction of the Apex Court. If there is any violation of 29

the orders of the Apex Court by the respondents that is to be brought to the notice of the Apex Court by the petitioners herein.

28. It is to be borne in mind that the powers of the

High Court under Article 226 of the Constitution are discretionary. Though there is no limit upon the discretion but it must be exercised sparingly along with recognized lines and not arbitrarily and subject to certain self imposed limitations. When the parties can resort to the jurisdiction of the Civil Court as an alternative remedy for relief, which may be obtained by them, then the Writ Court normally should restrain from exercising its power under Article 226 of the

Constitution though it has unfettered jurisdiction.

29. Under the above said facts and circumstances of the case, I am of the opinion the petitions are devoid of 30

merits and the same are liable to be dismissed.

Accordingly, it is dismissed.

Sd/- JUDGE bvv