Karnataka High Court Sri. Raghavendra Swamy Mutt. vs Sri. Uttaradi Mutt, on 17 January, 2013 Author: Subhash B.Adi IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 17 T H DAY OF JANUARY, 2013 BEFORE THE HONBLE MR.JUSTICE SUBHASH B. ADI MFA NO.21690/2012 (CPC) BETWEEN: Sri Raghavendra Swamy Mutt By its Peetadhipathi Sri Suyathindra Theertharu Sri Raghavendra Swamy Mutt Mantralaya, Kurnool District, Andrapradesh. (By its P.A. Holder Raja S. Rajagopalachar) ...Appellant. (By Sri K.Suman, Advocate, for Sri S.S.Bawakhan, Advocate.) AND: Sri Uttaradi Mutt By its Peethadhipathi Sri Satyatma Teertha Swamiji Represented by General Power of Attorney Holder Sri Ayodhya Ramachar Advocate, Near Raghavendra Swamy Mutt, Gangavathi District, Koppal. ...Respondent. (By Sri Jayavittal Rao Kolar, Sr. Counsel, for Veena Hegde, Advocate for C/R.) 2 This Miscellaneous First Appeal is filed under Order 43 Rule 1(r) of CPC, 1908, against the judgment and award dated 22.11.2011, passed in R.A.No.14/2011, on the file of the Senior Civil Judge, at Gangavathi, disposing the I.A. filed against the judgment dated 29.3.2012, on the file of the Presiding Officer, Fast Track Court-II, Koppal, dismissing the appeal filed U/O. 43 Rule 1 of CPC, etc.,. This appeal coming on for hearing on interlocutory application, this day, the court delivered the following judgment. JUDGMENT This appeal is by the defendant before the trial Court and respondent before the lower Appellate Court, against the order dated 22.11.2011, in R.A.No.14/2011, on I.A.No.1, on the file of Senior Civil Judge, Gangavati. 2. The respondent Mutt was plaintiff in O.S.No.121/1992, renumbered as O.S.No.193/1992 now numbered as O.S.No.74/2010. The suit is one for permanent injunction restraining the defendant, its agent, devotees, servants and representatives, etc., from interfering upon the schedule land Nava Brundavan Gaddi or interfering with the plaintiffs possession and enjoyment thereof, in any way and to interfere with when the performance of annual Aradhana of H.H.Padmanabhateertharu, H.H.Ravindrateertharu, H.V.Vikasateertharu, every year by the plaintiff Mutt and for such other orders. 3. The said suit was tried and by the judgment and decree dated 18.6.2011 came to be dismissed. As against the same the plaintiff is in appeal in R.A.No.14/2011. In the said R.A. the plaintiff filed I.A. under Order 39 Rule 1 and 2 of CPC inter-alia seeking for exparte temporary injunction restraining the defendant, his supporters and agents from interfering and entering upon the suit schedule property Nava Brundavan Gaddi and interfering with the lawful possession and enjoyment of the suit schedule property till the final disposal of the appeal. 4. The lower appellate Court upon hearing the plaintiff and the defendant who is appellant in this appeal, disposed of the I.A.No.1 as under: The Plaintiff Mutt shall perform the Aradhana of Nava Brindavana on the first day and on the second day upto 3.00 p.m. and thereafter the defendant mutt shall perform the Aradhana for the remaining part of second day and the third day. This order would remain in force till disposal of the appeal on merits. 5. Learned counsel for the appellant/defendant submitted that the trial Court has dismissed the suit for permanent injunction, as against the said decree, appeal is pending. However the appellate Court influenced by the grant of interim order by the Apex Court in Civil Appeal No.881/1995 dated 18.7.2001 has continued the interim arrangement even in appeal despite the suit is dismissed. 6. On the other hand, the learned Senior Counsel Sri Jayavittalrao Kolar, for the plaintiff submitted that, the appellate Court taking into consideration the averment in the application, findings of the trial Court and also the material on record, has passed a detailed order granting interim order which benefits both the plaintiff Mutt and the defendant Mutt. This arrangement has been continued since long. 7. The apprehension of the learned counsel for the defendant is that, the application for temporary injunction or the interim arrangements are being decided only on the basis that there has been an interim arrangement made by the Apex Court and same is being continued, without deciding the respective rights of the parties. The Apex court has confined the interim arrangement till the disposal of the suit by the trial court. Hence the said interim arrangement cannot be continued without adjudicating the application for temporary injunction on merit. He relied on the observation made by the Apex Court wherein, the Apex Court has specifically observed that, the interim arrangement, as directed by the appellate Court, be allowed to continue till the disposal of the suit with following modifications: (1) The plaintiff -respondent - Uttar ad imath shall perf orm ar adhana of the Sain t on the f irst d ay and up to 3 p.m. on the second d ay and f or the rest of the second d ay and f ollowing d ay i.e. third day, the def end ant-appellan t shall perf orm ar adhana. This arr angement is withou t prejudice to the rights and conten tions of the par ties in the suit. (2) The said arr angemen t shall continue till the disposal of the suit and shall cease to have its eff ect as and when the decree in the suit is passed. 8. As such, once the suit is decided, an application for interim order, if any, filed thereafter requires to be considered independent of the orders or observations if any made in the previous proceedings. As such, the interim order passed by the lower appellate Court based on the order of the Apex Court requires to be interfered. 9. On the other hand, Shri Jayavittalrao Kolar, Senior Counsel for the plaintiff submitted that when a statusquo, as on the date of grant of temporary injunction modified by this Court in earlier appeal and by Supreme Court, the same has been continued, such arrangement is being followed for several years. However, he submits that the interim arrangement may be confined till the disposal of the appeal i.e., R.A.No.14/2011 only. 10. Having regard to the same, both the counsels submit, if the interim order passed by the lower appellate Court is restricted till the disposal of the appeal, and any interim order thereafter could be passed in any appeal or proceedings should be based on merit and not because that the interim arrangement has been continued earlier. Such interlocutory application should be decided independently not being guided by any of the observations made in the previous proceedings including the Apex Court. 11. Shri Jayavittalrao Kolar, the learned Senior counsel has filed a memo inter-alia stating that in pursuance of the interim order granted by the appellate Court, the appellant has accepted the said order and has performed Aradhana and also stated that respondent respectfully agree that it would not rely upon or claim as a precedent the interim order under challenge in any further proceedings arising out of the disposal of R.A.No.14/2011. As far as the statement that the appellant has accepted is seriously disputed by the learned counsel for the appellant. 12. Appellant submitted that after the suit was dismissed since interim order has been passed, the appellant did perform pooja /Aradhana, but not by accepting the interim order and same should not be treated as acceptance. 13. Both the counsel also submits that any interim order is required to be passed after disposal of R.A.No.14/2011, it would be decided independent of all earlier interim orders. Such application will be decided on the merits of the application, without claiming the benefit of any interim arrangement or interim order earlier passed as a precedent for the purpose of deciding the application. 14. Considering these submissions, considering the gravity of the matter, I find the submissions could be accepted and the order of the appellate Court be clarified as under: (i) The interim arrangements made by the lower appellate Court in its order dated 22.11.2011 in R.A.No.14/2011 will remain in force till the disposal of the said Regular Appeal. (ii) After the disposal of the Regular Appeal by the lower appellate Court neither the plaintiff nor the defendant shall claim the interim orders either passed by the trial Court or appellate Court or by this Court or by the Supreme Court in earlier proceedings as a precedent or as a binding on the subsequent application and such application for interim order would be decided independently on the basis of its own merit. (iii) All observations made during the course of disposal of I.A.No.1 in R.A.No.14/2011 dated 22.11.2011, any observations made in any of the earlier proceedings, the lower appellate Court shall not be guided or influenced by any of the observations made by it, in R.A.No.14/2011 on I.A.No.1, dated 22.11.2011, or any observations made in the earlier proceedings between the parties before the lower appellate Court or in this Court or before the Apex Court. (iv) The lower appellate Court shall decide the appeal on its merit independent of any other observations. (v) The applications if any pending in the lower appellate Court between the parties should be decided independently on their merits along with the main appeal. 15. Having regard to the gravity and seriousness of the matter, the lower appellate Court is directed to dispose of the main appeal along with applications if any pending, as early as possible not later than six months from the date of receipt of a copy of this order. Both the counsels submit that both the parties will co-operate for disposal of the appeal as expeditiously as possible but in the outer limit of six months. 16. Accordingly the appeal stands disposed of. SD/- JUDGE Mrk/-
Posted on: Tue, 28 Oct 2014 16:52:17 +0000
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