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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 13TH DAY OF AUGUST 2014

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No. 26668 OF 2014 (GM-CPC)

BETWEEN:

1. Mr.Sadhashivayya, Son of Late Puttayya, Hindu, aged about 63 years, Retired Forest Guard, Residing at Mattadakere House, Beluvai Post, Taluk – 574 213.

2. Sri. Rudramuni Mahaswamy, Aged about 32 years, Residing at Matadakere House, Beluvai Post 574 213, Mangalore Taluk, Dakshina .

3. Mr. Satish Kumar, Son of Late Chandrashekareyya, Hindu, aged about 53 years, Residing at House No.20, Srinivasa Nilaya, 3rd Main, 1 st Cross, K.G.Halli, Jalahalli, 2

Bangalore – 560 064.

4. Mr. Shivanandayya, Son of Late Aduvappa Shetty @ Babayya, Hindu, Aged about 62 years, Chamani Road, Gurupur P.O., Mangalore Taluk 574 147.

5. Mr. Kumarayya, Son of Late Sidhaligayya, Hindu, aged about 68 years, Residing at Sorekela Jangamma Mutt, Shirva, Pillar Village, Pernal Post, Taluk and District – 574 148.

6. Mr. Shivaprasad @ Appu, Son of K. Kumarayya, Hindu, aged about 36 years, Residing at Sorkela Jangama Mutt, Shirva, Pillar Village, Pernal Post, and District 574 148.

7. Mr. Sangamesha, Son of Kumarayya, Hindu, aged about 32 years, Residing at Sorkela Jangama Mutt, Shirva, Pillar Village, Pernal Post, Udupi Taluk and District, Presently residing at C/o. Mr. Sadhashivayya, Chamani Road, Gurupur P.O., Mangalore Taluk 574 145. 3

8. Mr. Girish Kumar, Son of Late Vishwanathayya, Hindu, aged about 33 years, Residing at Pangala Jangamam Mutt, Pangala Post, Udupi Taluk and District – 574 148.

9. Mr. G. Ramesh Bhat, Son of G. Laxman Bhat, Hindu, aged about 45 years, Sudha Bekary, Main Road, Gurupur Post, Mangalore Taluk 574 114. …PETITIONERS

(By Shri. S.M. Chandrashekar, Senior Advocate for Shri. S.B. Mathapathi and Shri. Girish G.N., Advocates)

AND:

1. Mr. Vardhaman Durgaprasad Shetty, Son of Late K.P.Shetty, Hindu, aged about 44 years, Gadikararu Golidhadi Guthu, K.P.Shetty Road, Gurupur, Mangalore Taluk 574 145.

2. Mr. C.M.Udya Bhat, Son of Late Anantharam Bhat, Hindu, aged about 37 years, Residing at Manje Hithalu House, Gurupur, Mangalore Taluk 574 145.

3. Mr. K. Damodhar Shetty, Son of Late Babu Shetty, 4

Hindu, aged about 49 years, Residing at Kallakalembi House, Doninje Guthu, Mangalore Taluk 574 145. …RESPONDENTS

(By Shri. Jayakumar S Patil, Senior Advocate for Shri. P. Karunakar, Advocate ) **** This Writ Petition is filed under Articles 226 and 227 of the Constitution of praying to set aside the order dated 29.4.2014 in O.S.No.103/2012 passed by the III Additional Senior Civil Judge, Dakshina Kannada, Mangalore vide Annexure-A and etc;

This Writ Petition is coming on for Preliminary Hearing this day, the court made the following:

O R D E R

After having heard the learned Senior Advocate Shri

S.M. Chandrashekar appearing for the counsel for the petitioners and the learned Senior Advocate Shri Jayakumar S.

Patil appearing for the counsel for the respondents, it is seen that the respondents herein have filed a civil suit in

O.S.No.103/2012 before the Court of the III Additional Senior

Civil Judge, Mangalore, Dakshina Kannada, against the present petitioners seeking the relief of declaration that the plaintiffs 5

and other members of the Advisory Committee constituted by one Lingaikya Shri Ma.Ni.Pra. Shivaprakash Swamiyar of

Gurupur Jangama Mutt as per the terms of his last Will dated

10.11.2011, are to nominate the successor Swamiyar from amongst the Veerashaiva Community to Jangam Samsthan

Mutt, Gurupura and by way of consequent relief of permanent injunction restraining the defendants from appointing any person as successor to the aforesaid Peeta of Jangam Samsthan

Mutt, Gurupur. The suit was accompanied by an application for temporary injunction in similar terms, which was granted by the Trial Court and that was challenged in writ petition herein, against which a miscellaneous appeal was filed and the order was confirmed. The application for temporary injunction having been granted restraining the present petitioners from appointing any such person to the Peeta of Jangam Samsthan

Mutt and restraining them from interfering with the affairs of the Mutt, was challenged in appeal and the Appellate Court affirmed the order insofar as it restrained the defendants from 6

appointing any person as the Uttaradikari of the Mutt, however set-aside the order restraining the defendants from interfering with the management and administration of the Mutt, against which writ petition was filed by the respondents.

2. While the order passed by the Lower Appellate Court was confirmed, this Court had directed that the plaintiffs and defendants co-operate with each other in agreeing to the appointment of an Uttaradhikari and accordingly, an exercise was carried out whereby they sought to choose a person as

Uttaradhikari. Whereas the plaintiffs could muster the strength of about 280 persons in seeking to appoint a five year old child as the Uttaradhikari. The defendants on the other hand had mustered the strength of 1,111 people, all of whom had filed their affidavits supporting the appointment or nomination of the second defendant as the Uttaradhikari. Therefore, the present petition is filed seeking the enforcement of such selection.

3. There is strong opposition by the respondents, who are the plaintiffs, to such an appointment and it is stated that the 7

direction by this Court required the parties to arrive at a consensus and this is evident from the fact that the court has expressed that the plaintiffs and defendants shall co-operate with each other in identifying a person who could be appointed as Uttaradhikari. That not having come about, it cannot be said that there is a conciliation which can be enforced. The intention of this Court was apparently to bring about a conciliation.

Since there is a dissenting opinion, it cannot be said that there is unanimity in the appointment of any person. If this Court were to confirm a selection made by the defendants of a person as

Uttaradhikari, that would lead to further contest and the matter may not rest at that. In order to avoid such a fruitless and interminable litigation when this Court would not have the jurisdiction to decide matters which would rightly be decided either under Section 92 of the Code of Civil Procedure, 1908

(hereinafter referred to as ‘the CPC’, for brevity) by a Civil

Court or such other measures if are available under any other legislation. Therefore, the appropriate measure would be for 8

the petitioners to seek appropriate reliefs by invoking Section

92 of the CPC before the competent civil court.

4. However, the learned Senior Advocate Shri S.M.

Chandrashekar would be quick to point out that the tenor of the order of the court below which has been confirmed both by the

Lower Appellate Court as well as by this Court, would strictly speaking, prevent the petitioners from seeking any such remedy under Section 92 of the CPC.

5. However, in the opinion of this Court, there is no such bar and there could be no such bar of injunction to approach a court of law. Shri Jayakumar S. Patil would also agree with this legal proposition. Hence, it is held that there is no impediment for the petitioners to approach the Civil Court with a scheme suit which it is expected, would bring about a finality to the dispute. Insofar as the interim management of the Mutt is concerned, this could also be worked out in the proposed suit.

Therefore, the petitioners are left to their remedies. The present 9

petition is disposed of without prejudice to the case of the petitioners.

Sd/- JUDGE

KS