Kashi Math Samsthan & Anr vs Srimad Sudhindra Thirtha Swamy & Anr

Kashi Math Samsthan & Anr. .......... Appellant(s)

Versus

Srimad Sudhindra Thirtha Swamy & Anr. ... Respondent(s)

JUDGMENT

TARUN CHATTERJEE,J.

1. Leave granted.

2. These two appeals, by way of Special Leave Petitions, have

been preferred against a common order dated 25th of March,

2009, passed by the High Court of Judicature, Andhra Pradesh

at Hyderabad in A.S. No. 90 and 91 of 2009, by which the High

Court had rejected the interim applications filed by the

appellants seeking status quo and stay of execution of the

decree passed by the Additional District Judge, IV Court at

Tirupathi in a suit for declaration and injunction.

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3. Shri Kashi Math Samsthan (in short "the Math"), which is

the appellant No. 1 herein, was established somewhere between

the 14th and 15th Century A.D. It is one of the three Dharma

Peethas or spiritual thrones of the Gowda Saraswatha Brahmin

Community (in short "GSB"). The Respondent No. 1 namely,

Shrimad Sudhindra Tirtha Swamy (hereinafter referred to as

the "Respondent No 1") became the Mathadhipathi of the Math

in or around 1949 after the death of the then Mathadhipathi.

4. On 26th of April, 1989, Respondent No. 1, who was the

guru of one Shrimad Raghavendra Thirtha Swami (hereinafter

referred to as the "appellant no.2"), had chosen him as his Patta

Shishya and successor to the Math. On 7th of July, 1989, the

Respondent No. 1, conferred Diksha, thereby initiating the

Appellant No 2 to Sanyasa. On 4th of November, 1994, the

respondent no 1 entrusted some religious, Dharmic and social

activities as well as management of the Math and handed over

all the deities, along with paraphernalia, insignia etc to the

Appellant no 2. As per the prevalent tradition of the Math, the

Mathadhipathi is supposed to perform Pooja to the presiding

2 deities three times a day, which is referred to as the Trikala

Pooja. The Mathadhipathi as the head of the Math is the

custodian of the "Mudra" (Insignia), or the seal of the Math.

The respondent No. 1 entrusted his authorities, powers and

privileges as the 20th Pontiff and head of the Math in respect of

some of the religious, dharmic and social activites of the Math,

except those of Shri Vyashasram at Haridwar to and in favour

of the appellant no 2 on and with effect from 12th of December,

1994.

5. Due to some disturbances in the matter of continuing as a

Mathadhipathi of the said Math between the GSB and the

respondent No. 1, he sought to prevent the appellant No. 2 from

discharging his functions as the Mathadhipathi of the Math and

on the other hand, the appellant No.2 had alleged that the

respondent No.1 started interfering with the affairs of the

Mathadhipathi of the Math. Finding this difficulty, the

appellant No. 2 had instituted a suit to declare him as the

Mathadhipathi and 21st Pontiff of the Math and also prayed for

an injunction, restraining the respondent No. 1 from exercising

3 powers, duties and privileges as the Mathadhipathi of the Math.

The said suit was filed in the III Court of the Addl. District

Judge at Tirupathi. The Respondent No. 1 entered appearance

and filed his written statement inter alia alleging that since he

had continued to be the Mathadhipathi of the Math, appellant

No.2 had no right to disturb the functioning of respondent No. 1

and by a counter claim, he had prayed for return of the deities,

paraphernalia, insignia and other articles, which were in

possession of the appellant no 2.

6. During the pendency of the suit, an application for

injunction was filed by the appellant No.2 and the trial Court

directed the parties to maintain status quo in respect of the

functioning of the Mathadhipathi relating to the affairs of the

Math as well as the articles till the disposal of the suit. It is

true that the interim order of status quo granted by the trial

Court was operative during the pendency of the suit and was

not challenged by the respondent No.1.

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7. After issues were framed and evidence was adduced, the

suit itself was disposed of on transfer to the IV Additional

District Judge, Tirupati, who dismissed the suit of the

appellants and allowed the counter claim of the respondent No.

1 by granting a decree for permanent/mandatory injunction

thereby directing the appellant No.2 to hand over the articles in

his possession to the respondent No. 1 within a period of one

month from the date of delivery of the judgment in the suit.

8. Feeling aggrieved by the judgment and decree of the trial

Court, the appellants have filed two appeals before the High

Court of Judicature of Andhra Pradesh at Hyderabad, which

came to be registered as A.S. No. 90 and 91 of 2009. In the

said pending appeals, applications for injunction under Order

39 Rules 1 and 2 read with Section 151 of the CPC seeking

temporary injunction, restraining the respondents from

interfering in any manner with the functioning of the appellant

No. 2 as Mathadhipathi of the Math, was prayed for. The

appellants also filed a separate application under Order 41 Rule

5 read with Section 151 of the CPC being ASMP no 286 of 2009

5 on the same day, seeking stay of the judgment and decree

passed by the trial court during the pendency of the aforesaid

two appeals. By a common impugned Order dated 25th of

March, 2009, the High Court dismissed the applications of the

appellants and directed that the execution of the decree granted

by the trial court would be subject to the final outcome of the

appeals filed before it.

9. Feeling aggrieved by this order of the High Court rejecting

the application for injunction and the application for stay filed

by the appellants, these two Special Leave Petitions were filed,

which on grant of leave, were heard by us in presence of the

learned counsel appearing on behalf of the parties.

10. We have heard the learned counsel for the parties and

examined the impugned order of the High Court as well as the

Judgment of the trial Court, which dismissed the suit of the

appellants in respect of which, appeals are now pending before

the High Court for final adjudication. Before us, Mr. R. F.

Nariman, learned senior counsel appearing on behalf of the

6 appellants, submitted that since an interim order of status quo

regarding the functioning of the Mathadhipathi of the Math was

operative during the pendency of the suit and triable issues

have to be gone into by the High Court in the first appeals, it

was fit and proper for the High Court to direct the parties to

maintain the interim order which was granted by the trial Court

during the pendency of the suit. This submission of the learned

senior counsel for the appellants was hotly contested by

Mr. K.K. Venugopal, learned senior counsel appearing for the

respondents. According to Mr. Venugopal, since the appellants

could not make out any prima facie case to get an interim order

of injunction during the pendency of the appeals, question of

continuance of the interim order, which was granted by the trial

Court during the pendency of the suit, cannot arise at all.

11. Having heard the learned senior counsel for the parties

and after going through the impugned order and also the

judgment of the trial Court dismissing the suit of the

appellants, we do not find any worthy reason to pass an interim

order in the manner suggested by Mr.R.F.Nariman, learned

7 senior counsel appearing on behalf of the appellants, in the

exercise of our discretionary power under Article 136 of the

Constitution.

12. A perusal of the Judgment of the trial Court in respect of

which appeals are now pending before the High Court, would

clearly show that the appellant No.2 was entrusted with some of

the religious, dharmic and social activities of Shri Kashi Math

Samsthan except those of Vyasaram, Haridwar by the

respondent No.1. It would also be evident from the aforesaid

Judgment that the appellant no. 2 himself had requested the

respondent No.1 to relieve him from certain duties. It also

appears from the said Judgment that the whole trouble started,

when the appellant no. 2 had opened a bank account in his

individual status. It was also the finding in the suit that the

appellant no. 2 except filing Ex P1 to P3, had not filed any other

documents at the time of filing of the suit in order to prove that

he was appointed as Mathadhipati of the Math. Furthermore,

the aforesaid Judgment also would not show that the appellant

No. 2 had ever whispered anything about his claim to the TT

8 Devasthanams for temple honours. Apart from that, the trial

Court, in its Judgment, had carefully and in detail, considered

the material documents as well as the oral evidence and then

had come to the conclusion that the appellant No. 2 had failed

to make a prima facie case in his favour for the purpose of

obtaining injunction in his favour. That being the position,

appellant No. 2 was not entitled to any discretionary remedy of

injunction.

13. It is well settled that in order to obtain an order of

injunction, the party who seeks for grant of such injunction has

to prove that he has made out a prima facie case to go for trial,

the balance of convenience is also in his favour and he will

suffer irreparable loss and injury if injunction is not granted.

But it is equally well settled that when a party fails to prove

prima facie case to go for trial, question of considering the

balance of convenience or irreparable loss and injury to the

party concerned would not be material at all, that is to say, if

that party fails to prove prima facie case to go for trial, it is not

open to the Court to grant injunction in his favour even if, he

9 has made out a case of balance of convenience being in his

favour and would suffer irreparable loss and injury if no

injunction order is granted. Therefore, keeping this principle in

mind, let us now see, whether the appellant has been able to

prove prima facie case to get an order of injunction during the

pendency of the two appeals in the High Court.

In para 21 of the Judgment of the trial Court, it is found:

".......the words `certain and `some' quoted above and `when we are still in a position to carry on with the traditional duties', prima facie show that the 1st respondent has not surrendered all his rights, privilege and duties and that the 2nd petitioner has not been made as full fledged Mathadhipathi. As per the custom prevailing since continuous, vatu initiated into Sanyasa and named as successor, will become Mathadhipathi after the Mathadhipathi passes away."

From the aforesaid finding of the trial Court, it is clear that

the respondent No. 1 had not abrogated all his powers as

Mathadhipathi in favour of the appellant no.2 and he was only

entrusted with certain powers. In para 22 of the Judgment of

the trial Court, it was observed as follows :-

"The following circumstances also go to support the version of the 1st respondent. The 2nd petitioner

10 himself has addressed a letter dated 4/11/99 reads as follows:

`In view of the recent events, we have kindly decided not to involve in the matters concerning the authority of Shri Samshtan (Adhikartha Vishayas) as well as Dharmic activities (Dharmic Vishayas) of the samaj. Therefore with pranamas, again and again we pray and request to relive us as early as possible.'

This prima facie shows that the 2nd petitioner has been still recognizing the 1st Mathadhipathi, and therefore requested him to relieve himself from "certain activities."

A careful reading of the aforesaid findings/observations

made in para 22 of the judgment of the trial Court would show

that the letter dated 4th of November, 1999 clearly enumerates

the fact that the appellant No. 2 had wanted to be relieved from

certain activities of the Math and he had in fact sought

permission from the respondent no 1 in this regard. Therefore,

in our view, it was rightly held by the trial Court in the final

Judgment that the appellant No. 2 continued to consider the

respondent No. 1 as the Mathadhipathi of the Math even after

the alleged proclamation of 1994.

The trial court again in para 24 had observed:

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"If all the circumstances are taken into consideration the irresistible conclusion that can be drawn at this stage is that, the 1st respondent has not abdicated all his powers and privileges as Mathadhipathi and only some powers and privileges have been conferred on 2nd petitioner. In view of the above discussion, I hold that the 2nd petitioner is not entitled for the injunction orders as claimed by him." (Emphasis supplied)

In view of the aforesaid findings of the trial Court to the

extent that appellant no. 2 was not entitled to the injunction

order as claimed by him, it is difficult to find any illegality or

infirmity with the findings of the trial court, as noted

hereinabove, atleast prima facie in respect of which, the High

Court had also agreed. We are, therefore, of the view that the

powers of the Mathadhipathi of the Math were not abdicated in

favour of the appellant No.2. It is well settled that such power

of the Mathadhipathiship of the Math could devolve to any other

person after the death of the existing Mathadhipathi or anyone

else, who could succeed him as the Mathadhipathi of the Math

according to the customs and traditions of the Math.

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14. Mr. Nariman, learned senior counsel appearing on behalf

of the appellants, as noted herein earlier, submitted that since

the order of status quo was continuing till the disposal of the

suit, that position should be allowed to continue during the

pendency of the appeals in the High Court. It is true that since

the appeals pending before the High Court are also to be

decided on facts, basically this position needs to be maintained

by the High Court. But in view of the peculiar facts and

circumstances of the present case and in view of the nature of

rights given to the appellant No.2, as prima facie noted herein

earlier and in view of our discussions made hereinabove that

the appellant No. 2 had failed to make out any prima facie case

to go for trial, we do not think that such state of affairs should

be allowed to continue till the disposal of the appeals by the

High Court. At this stage, we may note that the Trial Court,

while disposing of the application for injunction, held that

although the appellant No. 2 was not entitled to an order of

injunction as he had failed to prove that he had a prima facie

case and balance of convenience in his favour but still granted

13 status quo till the disposal of the suit. The findings made in

this regard may be reproduced below :

"In the result, the petitioners have failed to prove that they have prima facie case and balance of convenience, therefore, the 2nd petitioner is not entitled for interim order as prayed for i.e restraining the respondents from in any way interfering with the exercise of powers, duties and privileges of 21st Pontiff of the 1st petitioner Math. However, from the reasons it is clear that the 2nd petitioner has been entrusted with holy deities and other paraphernalia and insignia and it appears that the 2nd petitioner has been performing Trikala Pooja to the holy deities. Therefore, the respondents are hereby restrained from interfering in performing Trikala Poojas to the Holy Deities by the 2nd Petitioner. It is further directed that the 1st respondent shall not delegate his powers, particularly the authority to deal with bank accounts and all other movable and immovable properties of Shri Kashi Math Samsthan to any other person i.e. the 1st Respondent shall himself deal with the funds of Shri Kashi Math Samshtan and other movable and immovable properties and he shall not authorize any other person to deal with the same by executing General Power of Attorney or any other documents pending disposal of the suit...." (Emphasis supplied)

In view of our discussions made herein earlier and having

carefully considered the above findings of the courts below, as

14 noted hereinabove, made on the application for injunction, it

can be safely held that although the trial Court had directed the

parties to maintain status quo in the matter of functioning of

the Mathadhipathi of the Math till the disposal of the suit, but

such order was passed on a finding that the appellant No. 2 had

failed to prove prima facie case to obtain such an order of

status quo. That apart, it is well settled that when parties went

to trial and adduced evidence in support of their respective

cases, it would be open to the court to reach to a different

conclusion at the time of disposal of the suit and grant relief

accordingly. As noted herein earlier, while deciding the suit,

the trial court held relating to the declaration of title of the

Mathadhipathi that the Respondent no. 1 had never abrogated

his powers as the Mathadhipathi of the Math in favour of the

Appellant no 2 and, therefore, after assessing the evidence and

the submissions of the learned counsel for the parties, have

granted a decree for permanent and mandatory injunction and

directed the appellant No. 2 to restore back the holy deities and

other materials in his possession relating to the Math in favour

of the respondent No.1. The trial court also after considering the

15 entire evidence and materials on record in the final judgment

held that the balance of convenience was in favour of the

respondent no. 1 and that the appellant no 2 had failed to prove

that he succeeded as the Mathadhipathi w.e.f.1994 after the

proclamation by the then Mathadhipathi that is the respondent

No.1 herein. The final findings of the trial court, of course,

would be taken into consideration by the High Court in the first

appeals but we do not find at this stage to hold prima facie that

such findings can be said to have been vitiated and the

judgment of the trial court needs to be interfered with.

15. That apart, the High Court in the impugned order, as well

as the trial Court had pointed out that the proclamation, which

the appellant No. 2 had cited in support of his case, is not clear

to the effect that the respondent No. 1 had denounced all his

powers as the Mathadhipathi of the Math in favour of the

appellant No.2. In fact, it was the submission of the respondent

No. 1 that he had only abrogated some of his powers and not all

and that he still was continuing as the Mathadhipathi of the

Math. A careful perusal of the aforesaid findings of the trial

16 Court as well as the High Court and also after considering the

submission of the respondent No. 1 that the respondent No. 1

had only abrogated some of his powers and not all and that he

was still continuing as the Mathadhipathi of the Math, would

prima facie show that the appellant No. 2 had failed to prove

that he was made the Mathadhipathi of the Math by respondent

No. 1 or respondent No. 1 had relinquished his right of the

Mathadhipathi of the Math.

16. In view of the aforesaid finding, it is not necessary for us

to go into the question on title of the Mathadhipathiship of the

appellant No. 2 at this stage, which shall be decided in detail by

the High Court while deciding the appeals on merits. But we

make it clear that the findings made by the trial Court in the

final Judgment and the High Court on the application for

injunction in the pending appeals are to be treated as prima

facie findings which shall not be taken to be final by the High

Court at the time of disposal of the appeals.

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17. There is another aspect of this matter. It cannot be

disputed that as per the custom of Sri Samsthan, Mathadhipathi

Seat cannot be relinquished and respondent No. 1 shall continue

to work as the Mathadhipathi of the Math till his demise and

after his demise, the Shishya or the nominated successor of the

respondent No.1 would assume the office of the Mathadhipathi.

Further, it can not be said from the evidence on record that the

appellant No. 2 on the basis of the proclamation dated 12th of

December, 1994 was actually the Mathadhipathi as claimed by

him atleast prima facie which could permit the appellant No.1 to

obtain the order of injunction from the court. At the same time,

we should be reminded that the appellant No. 2 had himself

written a letter dated 4th of November, 1999 requesting the

respondent No. 2 to relieve from the activities of the Math. It

would also appear from the letter that the appellant No. 2 had

addressed the respondent No. 1 as the Mathadhipathi of the

Math. The finding arrived at by the trial Court as well as by the

High Court to the effect that the seat of Mathadhipathi can be

transferred to the successor of the existing Mathadhipathi only

after his death and not before, which is apparent from the

18 customs and traditions of the Math, it is difficult to accept at

least prima facie the case that the respondent No. 1 had

relinquished the seat of Mathadhipathi in favour of the appellant

No. 2 and such seat could be assumed by the appellant No. 2

before the death of the existing Mathadhipathi i.e. the

respondent No. 1 or by any deed executed by the respondent

No.1 relinquishing as the Mathadhipathi of the Math.

18. That being the position, we are in full agreement with the

views expressed by the High Court as well as by the trial Court

that the succession to the position of the Mathadhipathi can only

be done after the death of the existing Mathadhipathi and not

before it. That apart, as noted herein earlier, a perusal of the

proclamation dated 12th of December, 1994 would not

conclusively suggest that the respondent No. 1 had abdicated all

his powers as Mathadhipathi of the Math in favour of the

appellant No. 1. In view of our discussions made hereinabove

and in view of the admitted fact that all the Courts below,

starting from the trial Court, while granting status quo during

the pendency of the suit i.e. dated 29th of September, 2000 and

19 also the Judgment passed by the IV Additional District Judge,

Tirupati, in the suit, which is now under challenge in appeals

and also the impugned Judgment of the High Court, had noted

that the appellant No.2 failed to make out a prima facie case in

his favour and the balance of convenience was also against him.

Accordingly, we do not find any reason to interfere with the order

of the High Court in the exercise of our discretionary power

under Article 136 of the Constitution.

19. For the reasons aforesaid, the appeals are dismissed. We,

however, make it clear that whatever observations/findings that

have been made by us in this Judgment or the

observations/findings which were made by the High Court while

deciding the interlocutory applications in the pending appeals,

would not mean to prejudice the case of the appellants in the

pending appeals before the High Court. The High Court should

independently decide the appeals on merits without being

influenced by any observations/findings made in this Judgment

or even in the Judgment of the High Court in the applications for

injunction.

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20. Considering the facts and circumstances of the case, the

High Court is requested to dispose of the pending appeals at the

earliest preferably within six months from the date of supply of a

copy of this order to it. There will be no order as to costs.

........................J. [Tarun Chatterjee]

New Delhi; .........................J. December 02, 2009. [H.L.Dattu]

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