JUDGMENT Ashok Bhushan, J.
1. An order of temporary injunction passed by civil Court restraining the writ petitioner from proclaiming and functioning as Jagatguru Shankaracharya Jyotish Peeth, Badrika Ashram is under challenge in this writ petition.
2. Jyotish Peeth (Jyotir Mutt), Badrika Ashram is one of the four Mutts or monasteries established several centuries ago by Shankaracharya who was one of the world's greatest philosopher and spiritual leader. Shankaracharya prepounded theory of absolute monism on the authority of the (Sic), he not only summed up the true philosophy of Vedas as embodied in Upnishads but provided a firm beacon for the subsequent ages: It was for the purposes of strengthening and maintaining the doctrine of non-dualistic philosophy, he established four Mutts or monasteries at the four extremities of India viz Jyotir Mutt at Badrinath in the north, Sharda Mutt in Gujurat in the west, Srigeri (Sic) south and Gobardhan Mutt at Puri in east, each one of them was placed in charge of one of its ascetic disciples. In later years the persons who became head of above Mutts also proclaimed themselves to be Shankaracharya, consequently the Mahants or Muttadhipatis of all four Mutts were also known as Shankaracharya. In the suit filed by respondent No. 3 out of which present writ petition arises, the dispute was with regard to Shankaracharya of Jyotir Mutt, Badrika Ashram.
3. By this writ petition, the petitioner has prayed for quashing the order dated 2nd February, 1999 allowing the Application 6C of the plaintiff for grant of temporary injunction and the order dated 27th Aprils 2000 passed in Miscellaneous Appeal No. 41 of 1999 dismissing the miscellaneous Appeal of the petitioner against the temporary injunction order. A further prayer has teen made for quashing the plaint and all proceedings in Original Suit No. 513 of 1989 pending in the of Additional District Judge (Junior Division) II, Allahabad.
4. I have heard Sri V.K.S. Chaudhary, Senior Advocate (Sic) by Sri V.D. Ojha, Advocate for the petitioner and Sri Shekhar, learned counsel, appearing for respondent No. 3
5. Counter and rejoinder affidavits have been exchanged (Sic) the parties and with consent of the parties, the writ (Sic) is being finally decided.
6. Facts of the case as emerge from the pleadings of the ties, briefly stated, are; Swami Brahma Nand Sarswati undisputed Shankaracharya of Jyotir Mutt, breath his last on 20th May, 1953, Swami Brahma Nand Sarswati had executed a Will dated 18th December, 1952 appointing Swami Shanta Nand Sarswati (Ramji Tripathi) as his successor in office. In the Will name of four persons were mentioned in seriatim who were to assume as Shankaracharya. At first place name of Swami Shanta Nand Sarswati (earlier name Ramji Tripathi) was mentioned, at second place Pandit Dwarika Prasad Tripathi, at third place Swami Vasudeva Nand Ji Sarswati and at fourth place name of Pandit Parmatma Nand Ji Sarswati was mentioned. After the death of Swami Brahma Nand Sarswati, an interim committee was constituted to install the successor: The interim committee of which respondent No. 3, Swami Swaroopa Nand Ji Saraswati, was chairman, in its meeting dated 8th June, 1953 decided that Swami Shanta Nand Sarswati be installed on 12th June, 1953 at kash. On 12th June, 1953 Swami Shanta Nand Sarswati was installed as Shankaracharya of Jyotir Mutt. The decision of installing Swami Shanta Nand Sarswati as Shankaracharya was opposed by certain persons who claimed that Swami Santa Nand Sarswati is not entitled to be installed. The will executed by Swami Brahma Nand Sarswati was denied and it was claimed that Swarm Krishna Bodha Ashram was installed as Shankaracharya of Jyotir Mutt on 25th June, 1953. Swami Shanta Nand Sarswati filed an application under Section 372 of Indian Succession Act claiming succession on the basis of Will dated 18th December, 1952 executed by Swami Brahma Nand Sarswati on which Case No. 44 of 1953 was registered in the Court Civil Judge, Allahabad. An objection was filed by respondent No. 3, Swami Swaroopanand Sarswati, in the aforesaid case objecting the grant of succession. In the objection it was claimed that will dated 18th December, 1952 is not a genuine and valid document. Respondent No. 3 also claimed that being the senior Chela and heir of Swami Sarswati he is entitled for the Gaddi of Jyotir Mutt. The Civil Judge, Allahabad vide its judgment dated 12th December, 1955 granted succession certificate to Swami Shanta Nand Sarswati, as (Sic). An appeal against the said order was also filed which was rejected. Respondent No. 3, Swami Swaroopanand Sarswati, along with three other persons, moved an application before the Advocate General, Uttar Pradesh for filing a suit under Section 92 of Code of Civil Procedure in respect of Jyotir Mutt, Badrika Ashram. A suit being Suit No. 3 of 1954 under Section 92 Code of Civil Procedure was filed in the Court of District Judge, Varanasi by Swami Permanand Sarswati and three Ors. v. RamJi Tripathi (Swami Shanta Nand Sarswati). However, in the said suit respondent No. 3 did not join as one of the plaintiff. The reliefs claimed in the suit was for removal of Swami Shanta Nand Sarswati from the office. A further relief was sought that Swami Krishna Bodha Ashram be declared as duly installed Shankaracharya of Jyotir Mutt. It was further prayed that in case the above relief No. 2 is not granted some other person fit be appointed as Pithadhishwar of Jyotis Peeth. Several other reliefs were claimed in the Suit. The Additional District Judge vide its judgment dated 20th October, 1962 dismissed the suit as not maintainable under Section 92 of Code of civil Procedure as framed. A first appeal being First Appeal No. 385 of 1962 was filed against the said judgment in this Court which was dismissed on 11th September, 1973. Against the judgment dated 11th September, 1973 of this Court a civil appeal being Civil Appeal No. 1589(N) of 1973 was filed in the apex Court The apex Court vide its judgment reported in AIR 1974 SC 2141; Swami Permanand Sarswati and Anr. v. Ramji Tripathi and Anr., dismissed the appeal. Original Suit No. 3 of 1963 was filed by Swami Krishna Bodha Ashram praying for possession over the Peeth properties against Jagat Guru Shankaracharya, Swami Shanta Nand Sarswati. The above suit was later transferred to the Court of District Judge, Allahabad and was dismissed. A suit being Suit No. 36 of 1965 was filed by Swami Shanta Nand Sarswati praying for permanent injunction against Swami Krishna Bodha Ashram and two others from interfering in the possession over the Jyotis Peeth properties In Suit No. 36 of 1965, Swami Shanta Nand Sarswati, the plaintiff, claimed that he has been validly installed as Jagat Guru Shankaracharya on 12th June, 1953 on the basis of (Sic) by Swami Brahma Nand Sarswati, undisputed Shankaracharya of Jyotis Peeth. Issues were framed in the suit as to whether late Swami Brahma Nand Sarswati excuted will dated 18th December, 1952 as alleged by plaintiff and as to whether he has right to nominate his successor. Further issues framed were, as to whether plaintiff was installed as Shankaracharya as claimed, as to whether plaintiff has qualification for holding the office of Shankaracharya and as to whether Defendant No. 1 Swami Krishna Bodha Ashram) was installed as Shankaracharya of Jyotir Mutt on 25th June, 1953 as alleged in the written statement. The said suit was contested and a large number of witnesses appeared in the suit which included the Shankaracharya, Swami Niranjandeo Trithji Maharaj, Goverdhan Peeth Puri and Sri Abhinav Sachidanand Tirth Ji, Jagatguru Shankaracharya of Dwarka Peeth Sarda. The suit was finally decreed by the judgment and order dated 15th January, 1970 and injunction was issued to the defendants restraining from proclaiming Defendant No. 1, Swami Krishna Bodha Asnram, as Shankaracharya and Peethadishwar of Jyotis Peeth. On issue regarding Will dated 18th December, 1952 finding was returned that Will was duly executed by Swami Brahma Nand Sarswati. It was further found that Swami Brahma Nand Sarswati was duly entitled to nominate his successor by will dated 18th December, 1952. It was also found that plaintiff, Swami Shanta Nand Sarswati, was installed on 12th June, 1953 at Varanasi as Shankaracharya. The claim of Swami Krishna Bodha Ashram of installation as Jagat Guru Shankaracharya on 25th June, 1953 did not find favour with the Court. An appeal was filed against the judgment dated 15th January, 1970 by Swami Krishna Bodha Ashram but the said appeal was dismissed. Proceedings under Section 145 of Criminal Procedure Code were also initiated with regard to properties of Jyotis Peeth in which an order was passed Divisional Magistrate 12th September, 1967 possession of Jagat Guru Shankaracharya, Swami Shanta Nand Sarswati. A suit under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act, 1951 was filed by petitioner against respondent No. 3 with regard to 52 Nalis land of Khata No. 350 of village Joshi Math. The Assistant Collector vide order Sated 26.12.1976 dismissed the suit against which petitioner filed an Appeal No. 6 of 1976-77 before Commissioner, Garhwal Division who vide judgment dated 21.9.1979 declared the petitioner as bhumidhar of plot in dispute. Swami Krishna Bodha Ashram who had claimed to be installed as Shankaracharya on 25th June, 1953 fell ill in September, 1973 and respondent No. 3 claims to have been appointed by him to perform the duties of Gaddi. Swami Krishna Bodha Ashram died on 10th September, 1973. Respondent No. 3 after the death of Swami Krishna Bodha Ashram claims to be installed Shankaracharya of Jyotis Peeth on 7th December, 1973 at Delhi. A suit being Suit No. 1-A of 1974 was filed by Swami Swaroopanand Sarswati, respondent No. 3, in the Court of District Judge, Seoni (M.P.) impleading Ramji Tripathi (Swami Shanta Nand Sarswati) as Defendant No. 1. In Suit No. 1-A of 1974, respondent No. 3 claimed declaration that plaintiff be declared as duly installed Shankarachar of Jyotis Peeth. A further relief was sought for a direction to Defendant No. 1 to deliver possession of the properties mentioned in the plaint to the plaintiff. Suit No. 1-A of 1974 was transferred by the Madhya Pradesh High Court to the Court of District Judge, Allahabad. Against the order passed by learned single Judge of Madhya Pradesh High Court, a Letters Patent appeal was filed by respondent No. 3 which was dismissed by Division Bench of Madhya Pradesh High Court which judgment is reported in AIR 1979 Madhya Pradesh 50; Jagatguru Shri Shankarcharya v. Ramji Tripathi. Suit No. 1-A of 1974 is pending and no orders in favour of respondent No. 3 either interim or final, has yet been passed by the civil Court. Swami Shanta Nand Sarswati relinquished the office on 28th February, 1980 and nominated Swami Vishnudevanand Sarswati as Shankaracharya of Jyotis Peeth. Swami Vishnudevanand Sarswati was installed as Shankaracharya on 28th February, 1980 and continued to hold the office till November, 1989 when he died. It has not been thought on the record by any of the parties that installation of Swami Vishnudevanand Sarswati as Shankaracharya was challenged in any Court till his death. Swami Vishnudevanand Sarswati before his death had executed registered Will dated 17th April, 1989 nominating Swami Vasudevanand Sarswati, the writ petitioner as Shankaracharya of Jyotis Peeth. For installation of Swami Vasudevanand Sarswati, the writ petitioner as Shankaracharya 15th November, 1989 was fixed. Respondent No. 3 after coming to know about the date of installation of writ petitioner as Shankaracharya of Jyotis Peeth through newspaper publication, filed a suit being Suit No. 513 of 1989 on (Sic) November, 1989 praying that defendant be restrained by means of permanent injunction from being installed as Jagat Guru Shankaracharya of Jyotir Mutt Badrika Ashram Himalaya and proclaim himself as Jagat Guru Shankaracharya of Jyotir Mutt and to hold Dand Casatra Chhanwar and Singhasan of the office of Shankaracharya of Jyotis Peeth. An application 6-C for grant of temporary injunction was also moved by the plaintiff, respondent No. 3, praying for temporary injunction. The writ petitioner, Swami Vishnudevanand Sarswati, was installed as Shankaracharya of Jyotir Mutt on 15th November, 1989 in accordance with the Will of Swami Vishnudevanand Sarswati. A written statement was filed on behalf of the defendant, writ petitioner, in the suit. In the written statement, it was pleaded that plaintiff is not the Shankarachana of Jyotis Peeth. It was claimed that defendant has been installed as Shankaracharya on 15th November, 1989 and since then is continuing and discharging the duties of Shankaracharya of Jyotis Peeth, Plea that suit is barred by principle of res judicata and by provisions of Section 92 of Code of Civil Procedure was also raised. It was further pleaded that plaint is liable to be rejected under order VII Rule 11 of Code of Civil Procedure. Reference of judgment and decree in suit No. 36 of 1965 was also mad. It was pleaded that Swami Krishna Bodha Ashram was never appointed as Shankaracharya of Jyotis Peeth and his name was not recognised in Suit No. 36 of 1965. The defendant-petitioner also moved an application for deciding issues pertaining to res judicata and Section 92 of Code of Civil Procedure and some other issues as preliminary issue, his application for deciding the preliminary issues first as well as application under Order VII Rule 11 of Code of Civil Procedure praying for rejection of the plaint were rejected by the trial Court vide order dated 27th August, 1998. Another application praying that suit be dismissed on preliminary issue was rejected by the trial Court on 3rd September, 1998. Against the order of trial Court dated 27th August, 1998, the defendant-petitioner filed civil Revision No. 1046 of 1998 in the Court of District Judge, Allahabad which revision was also dismissed by the District Judge vide its judgment dated 18th September, 1998. The revisional Court, however, observed that revisionist should plead before the trial Court after settlement of issues that issue of jurisdiction be decided as preliminary issue. The issues were framed by the trial Court. The trial Court did not accept the plea of defendant-petitioner for deciding the preliminary issues first and the trial Court proceeded to hear the parties on the Application 6-C for grant of temporary injunction. The trial Court vide its order dated 22nd February, 1999 allowed the application 6-C filed by the plaintiff and issued temporary injunction restraining the defendant, Swami Vasudevanand Sarswati, from proclaiming and functioning as Jagat Guru Shankaracharya, Jyotis Peeth, Badrika (Sic), Himalaya. An appeal being Miscellaneous Appeal No. 41 of 1999 was filed by the defendant. In the said miscellaneous appeal the appellant prayed that operation of the judgment of the trial Court dated 22nd February, 1999 be stayed and it was also prayed that proceedings of suit be also stayed during the pendency of appeal. The appellate Court did not stay the operation of the order of the Court granting temporary injunction and heard the appeal itself and vide its order dated 27th April, 2000 dismissed the appeal. Aggrieved against the order dated 22nd February, 1999 passed by the trial Court granting temporary injunction as well as against the order dated 27th April, 2000, this writ petition has been filed. This Court while entertaining the writ petition en 22nd May, 2000 passed an order directing the parties to maintain status-quo as of that date. The writ petitioner who was defendant in the suit hereinafter will be referred as defendant and respondent No. 3 who was plaintiff in the suit will be referred as plaintiff.
7. Sri V.K.S. Chaudhary, learned senior Advocate appearing for the petitioner raised following submissions in support of the writ petition:-
(i) The plaintiff by his application for temporary injunction prayed for restraining the installation, proclamation and functioning of defendant as Shankaracharya. The defendant admittedly having been installed as Shankaracharya on 15th November, 1989 and was continuing as such for about ten years, there was no (Sic) for allowing the temporary injunction application after ten years of installation and functioning of the defendant as Shankaracharya; The application had become infructuous and ought to have been dismissed the trial Court.
(ii) The defendant having been installed as Shankaracharya on 15th November, 1989 and having been functioning since then, the trial Court exceeded its jurisdiction in proceeding to examine the question of qualification of defendant for the office of Shankaracharya on the basis of affidavit while hearing an application for temporary injunction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure. The jurisdiction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction cannot be invoked for deciding the contentious questions regarding qualification of defendant for holding the office, moreso when defendant had been admittedly installed on 15th November, 1989 and was functioning for the last ten years. The order passed by trial Court acting temporary injunction beyond the scope of Order XXXIX Rules 1 and 2 of Code of Civil Procedure.
(iii) There was no prima facie case in favour of the plaintiff or balance of convenience entitling the plaintiff for grant of temporary injunction. Plaintiff was neither Shankaracharya of the Jyotis Peeth nor was so recognised by any Court.
(iv) The defendant has been continuing in possession of the properties of Mutt. The plantiff being out of possession and having already filed a suit for declaration as Shankaracharya and possession of the Mutt properties being Suit No. 1-A of 1974 which suit is still pending the present suit filed by the plaintiff for permanent injunction was not maintainable. The plaintiff who was out of possession of the properties of the Mutt was not entitled to file suit for injunction.
(v) The suit filed by plaintiff was not properly valued and the Court in which suit was filed had no jurisdiction to entertain the suit. The plaintiff himself has valued the properties of the Mutt in Suit No. I A of 1974 for more than Rs. 7,41,000/-, it was not open to him to file present suit for injunction without valuing the properties of the Mutt, the suit as also barred by principle of res judicata and by Section 92 of the Code of Civil Procedure as well as by Section 38 and 41 of Specific Relief Act and inspite of defendant having insisted for deciding the above issues as preliminary issues, the trial Court without deciding the preliminary issues proceeded to illegally pass order on the application 6-C of temporary injunction.
(vi) The plaint of Suit No. 513 of 1989 is liable to be quashed his Court being abuse of process of Court. The plaintiff having not succeeded in his claim to the office of Shankaracharya in several earlier litigations, the present suit is clear abuse of process of Court.
8. The learned counsel for the defendant-petitioner has relied on various decisions of the apex Court, this Court and other High Courts which shall be referred to while considering the submissions in detail.
9. Sri M.J. Singh Shekhar, learned counsel appearing for the plaintiff has emphatically refuted all the submissions of counsel for the petitioner. Relying on Full Bench judgment of this Court reported in AIR 1991 All. 114, Ganga Saran v. Civil Judge, is contended that this writ petition challenging the granting temporary injunction and dismissing the appeal is not maintainable. He submitted that the trial was fully justified in granting temporary injunction after having recorded a finding in favour of the plaintiff that there is a prima fade case and balance of convenience in favour of the Even though the defendant during the pendency of the suit was installed on 15th February, 1989 and the relief of restraining the it from being installed had become infructuous, the trial has rightly issued temporary injunction restraining the it from functioning since the defendant was not qualified for being installed as Shankaracharya and his installation on the office was void. Two prayers vide made in the application for temporary injunction, firstly to restrain, the installation of defendant and secondly to stop him from proclaiming and functioning. Even after installation the second part of the prayer survived. The defendant did not fulfil the qualification to hold the office as laid down by books of command, namely, "Muttamanaya" and "Mahanusashan". The defendant was Sanyasi since even after Sanyas he has worked as teacher and received salary. The defendant is suffering from leprosy and defendant had disqualified himself from holding the office having undertaken a foreign trip. The plaintiff was installed on 7th December, 1973 by learned persons of Kashi Vidwat Parishad and Bharat Dharm Mandal in which, Shankaracharyas of three other Peeths also participated and there are several letters, documents, publication in the newspapers and magazines to show that plaintiff was accepted as Shank him by several learned persons, authorities' of the Government and Shankaracharyas of three other Mutts. It has been Submitted that plaintiff joined Shankaracharyas of other three Mutts in issuing statements pertaining to religion and other matters. Referring to various Sloks from Muttamanay and Mahanusashanam, It has been contended that it has been laid down by Adi Guru Shankaracharya that even if a person disqualified has assumed the Peeth, the learned men should dethrone him. Referring the judgment in Suit No. 3 of 1954 (under Section 92 of Code of Civil Procedure), it has been submitted that trial Court although dismissed the suit as not maintainable under Section 92 of Code of Civil Procedure but, had recorded a finding that Swami Shanta Nand Sarswati was not qualified to hold the office of Shankaracharya. The learned counsel for the plaintiff referred to findings of judgment dated 20nd October, 1962 in Suit No. 3 of 1954 on Issue No. 3 and contended that findings have persuasive value. It was further submitted by learned counsel that final judgment in Original Suit No. 36 of 1965 by which permanent injunction was issued against Swami Krishna Bodha Ashram in suit filed by Swami Shanta Nand Sarswati has no relevance and is not res judicata even on the issues decided therein. The submission of Sri M.D. Singh Shekhar, learned counsel for the plaintiff, is that there were three defendants in the said suit, namely, Swami Brahm Nand Sarswati (defendant No. 1), Shri Karapatriji alias Swami Hariharnand Ji Sarswati (defendant No. 2) and one other person as defendant No. 3. It was contended that said decree dated 15th January, 1970 was against defendants No. 2 and 3 only since it were defendants No. 2 and 3 who alone were restrained from proclaiming defendant No. 1 as Shankaracharya of Jyotis Peeth. He contended that said decree was not against Swami Krishna Bodha Ashram; Replying the submissions of counsel for the petitioner for quashing the plaint, Sri M.D. Singh Shekhar contended that application under Order VII Rule 11 of Code of Civil Procedure filed by the defendant had already been rejected by the trial Court vide its order dated 27th August, 1998 against which revision has been filed by the defendant which has also been rejected by the District Judge on 18.9.1998, hence it is not open to the defendant to claim that plaint be rejected even the Second application was filed alter the order dated 27th August, (Sic) for the same relied which too was rejected by the trial Court vide its order dated (Sic) September, 1998. In the aforesaid applications prayer was also made by the defendant for deciding certain issues as preliminary issue which was not accepted by the trial Court. Referring to the provisions of Order XIV Rule 2 of Code of Civil Procedure as amended in 1976, the counsel contended that it is not now obligatory for the trial court to decided the preliminary issue first and no error has been committed by the trial Court in proceeding to decide Application 6-C without deciding any preliminary issue. The counsel has further submitted that in view of above, there is no case of the defendant-writ petitioner for rejecting the plaint. The counsel for the respondent-plaintiff further contended that the trial Court has recorded findings of fact regarding prima facie case and balance of convenience which has also been affirmed by the appellate Court, this Court in writ jurisdiction will not reappreciate the findings of fact nor any interference is called for by this Court under Article 226 of the Constitution with the impugned order.
10. The learned counsel for the respondent-plaintiff also placed reliance on various judgments of this Court, apex court and other High Courts, which shall be referred to while considering the submissions in detail.
11. I have heard the counsel for the parties at length and perused the record.
12. Before considering the submissions raised by counsel for the defendant-petitioner, it is necessary to consider the submission of counsel for the plaintiff-respondent regarding maintainability of the writ petition. The counsel for the plaintiff-respondent relying on full Bench judgment in Ganga Saran's case (supra), contended that writ petition challenging interlocutory order granting interim injunction which has been confirmed by the appellate Court in miscellaneous appeal cannot be entertained. The Full Bench judgment of this Court in Ganga Saran's case (supra) has recently been considered by the apex Court in (2003)6 S.C.C. 675; Surya Dev Rai v. Ram Chandra Raj and Ors. The apex Court in the aforesaid judgment held that Full Bench judgment does not lay down any such proposition that writ petition challenging an interlocutory order refusing to grant injunction as confirmed by the appellate Court is not maintainable. Overruling the objection regarding maintainability of the writ petition, following was laid down in paragraphs 35, 36 and 37 of the said judgment :-
"35 We have carefully perused the Full Bench decision of the Allahabad High Court in Ganga Saran case relied on by the learned counsel for the respondent and referred to in the impugned order of the High Court. We do not think that the decision of the Full Bench has been correctly read. Rather, vide para 11, the full Bench has itself held that where the order of the civil court suffers from patent error of law and further causes manifest injustice to the party aggrieved, then that can be subjected to a writ of certiorari. The Full Bench added that every interlocutory order passed in a civil suit is not subject to review under Article 226 of the Constitution but if it is found from the order impugned that fundamental principle of law has been violated and further, such an order causes substantial injustice to the party aggrieved, the jurisdiction of the High Court to issue a writ of certiorari is not precluded. However, the following sentence occurs in the judgment of the Full Bench:
(AIR p. 119) "Where an aggrieved party approaches the High Court under Article 226 of the Constitution against an order passed in civil suit refusing to issue in junction to a private individual and such a writ petition under Article 226 of the Constitution would not be maintainable."
36. It seems that the High Court in its decision impugned herein formed an impression from the above quoted passage that a prayer for issuance of injunction having been refused by the trial Court as well as the appellate court, both being subordinate to the High Court amounts to issuance of a mandamus against a private party, which is not permissible in law.
37. The abovequoted sentence from Ganga Saran case cannot be read torn out of the context. All that the Full Bench has said is that while exercising cetiorari jurisdiction over a decision of the court below refusing to issue an order of injunction, the High Court would not, while issuing a writ of certiorari, also issue a mandamus against a private party. Article 227 of the Constitution has not been referred to by the Full Bench. Earlier in this judgment we have already pointed out the distinction between Article 226 and Article 227 of the Constitution and we need not reiterate the same. In this context, we may quote the Constitution Bench decision in T.C. Basappa v. T.Nagappa and Province of Bombay v. Khushaldas S.Advani as also a three Judge Bench decision in Dwarka Nath v. ITO which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the Act, order or proceedings of the subordinate court, it can issue even if the lis is between two private parties."
13. In above view of the matter, the submission of counsel for the plaintiff-respondent that writ petition is not maintainable cannot be accepted.
14. The first two submissions raised by counsel for the petitioner center round the scope of a temporary injunction under Order 39 Rules 1 and 2 of Code of Civil Procedure and as to whether the trial Court acted beyond the scope of Order XXXIX Rules 1 and 2 in granting temporary injunction. The first two submissions, being interrelated, are being considered together.
15. Before considering the submissions, it is relevant to note the final relief which was claimed by the plaintiff in the suit. In suit plaintiff claimed for following reliefs:-
"(A) That the defendant may be restrained by means of permanent injunction decree from being installed as Jagatguru Shankaracharya of Jyotirmath Badrika Ashram Himalaya and proclaim himself as Jagatguru Shankaracharya of Jyotirmath Badrika Ashram and to hold dand, chatra, chhanwar and singhasan of the office of Shankaracharya of Jyotishpeeth.
Valued at Rs. 1,000/-.
(B) Costs of the suit be awarded in favour of the plaintiff against the defendant.
(A) Any other relief which deem fit and proper may be awarded in favour of the plaintiff against the defendant."
16. The cause of action for filling the suit as disclosed in Paragraph 45 of the suit was :-
"45. That the cause of action arose on 7.11.89 and 8.11.89 when the defendant, his associates got a news item published in the news paper for being installed the dafdt on 15.11.1989 as Shankaracharya of Jyotirmath Badrika Ashram without any right and the defendant threatened to do so and threatening to proclaim himself as Jagat Guru Shankaracharya of Jyotirmath Badrika Ashram and to hold and, Chatta, Chanwar and singhasan of Shankarachraya within the jurisdiction of this court and this court is competent to to try the suit."
17. Along with the plaint an application (6-C) for temporary injunction was also moved by the plaintiff praying for following relief :-
"For the reasons disclosed in the accompanying affidavit it is most respectfully prayed that the Hon'ble Court may be pleased to restrain the defendant from being installed as Jagat Guru Shankarcharya of Jyotis Peeth Badrikashram Himalaya and proclaiming him as Jagat Guru Shankaracharya of that Peeth and to hold and process the Ganda Chhatra Chanwar and singhasan and functioning as such otherwise the plaintiff shall suffer an irreparable loss and injury and religious feeling of the General public shall be affected great deal."
18. No ad-interim injunction was granted in the suit. The defendant was installed as Jagatguru Shankaracharya, Jyotis Peeth on 15th November, 1989 as notified and defendant claims to have been functioning as Jagatguru Shankaracharya since 15th November, 1989. The temporary injunction was granted by the trial Court on 22nd February, 1999 i.e. after about ten years of (Sic) of suit. The scope of temporary injunction under Order (Sic) Rules 1 and 2 of Code of Civil Procedure has been considered by apex Court in several cases. The apex Court in AIR 1995 S.C. 2372; Gujarat Bottling Considation Officer Ltd. and Ors. v. Coca Cola Company and Ors., laid down paragraph 46 which is extracted below:
"46. 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 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 grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain 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 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 to the defendant to be protected against injury resulting from his having been prevented from exercising his own illegal for which he could not be adequately compensated. The Court must weigh one need against another and determine the balance of convenience lies. (See: Wander Ltd. v. Antox India P. Ltd. 1990 (supp) SCC 727 at Pp. 731-32). In order to protect the defendant while granting an interlocutory injunction in his favour the Covert 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."
19. The plaintiff had filed suit seeking injunction to restrain the Installation of defendant as Jagatguru Shankaracharya which was scheduled to take place on 15th November, 1989. A prayer for temporary injunction was also made for restraining the installation. The interim injunction as contemplated under Order XXXIX Rule 2 of Code of Civil Procedure is a relief restraining the defendant from committing injury of any relating to some property or right. The relief claimed in the by plaintiff did not include any of the property of the Mutt permanent injunction sought in the suit was for restraining defendant from being installed as Jagatguru Shan and proclaiming himself as Jagatguru Shankaracharya (Sic) installation of defendant as Jagatguru Shankaracharya of Jyotir Peeth proclamation naturally follows. The trial Court judgment has accepted the fact of installation of the defendant (Sic) as Shankaracharya on 15th November, 1989 but it proceeded to examine the validity and entitlement of the installation and proceeding further to hold that the defendant is not installed Shankaracharya and such installation is and inoperative. The plaintiff-claimed himself to be Shankaracharya installed on 7th December, 1973 after death Swami Krishna Bodha Ashram. In paragraph 42 of the plaintiff the plaintiff alleged that defendant does not possess the requisite qualification as provided in Muttamanay and Muahanusashanam and further pleaded that plaintiff having already installed as Jagatguru Shankaracharya, there cannot be two Shankaracharyas and the defendant is not entitled to be It is relevant to note that in paragraph 42 of the plaint even did not-specifically plead as what are the classification which are lacking in the defendant from holding Gaddi of Jagatguru Shankaracharya. In various affidavits filed in the trial Court in Application 6-C, the plaintiff although specifically mentioned about various qualifications which according to the plaintiff is not being fulfilled by the defendant true the question as to whether defendant lack qualification and to the effect that defendant is liable to be removed different Ineligible of the Gaddi on the basis of non fulfilling of qualifications were questions which were required to be the suit after evidence of the parties. At the stage of an application for temporary injunction, in facts of case, the trial Court misdirected itself in proceeding he the issues to the effect that defendant is qualified or to hold Gaddi of Jagatguru Shankaracharya, moreso when ten years have elapsed from installation of defendant as Shankaracharya. Proceedings under order XXXIX 1 and 2 of Code of Civil Procedure cannot be converted proceedings of mini trial of the suit. The defendant-petitioner has denied in the affidavits the allegation of the plaintiff regarding lack of qualification by defendant to hold that office. The trial Court proceeded to consider various filed in air in application under Section 6-C and proceeded for detail to consider various submissions regarding qualification, defendant for holding the office of Jagatguru Shankarachaya considering the application for temporary injunction trial Court was not required to proceed to consider case of the plaintiff as contained in various affidavits filed in proceedings under Order XXXIX Rules 1 and 2 of Code of Civil Procedure and records its finding regarding various aspects of the qualification. The judgment of the trial Court runs into 89 closely typed pages which elaborately considers various issues laised in the suit regarding eligibility of the defendant to hold office of Jagatguru Shankaracharya. The issues which have been examined and on which findings have been recorded by the trial Court in proceedings under Order XXXIX Rules 1 and 2 of Code of Civil Procedure were questions which were required to be considered and decided after evidence of the parties in the suit itself. The Apex Court in 2001(5) S.C.C. 568; Anand Prasad Agarwal v. Tarkeshwar Prasad and Ors., while considering the scope of application for temporary injunction under Order 39 Rules 1 and 2 held in paragraph 6:
"It may not he appropriate for any Court to hold a mini trial at the stage of trant of temporary injunction................."
20. The preventive relief which was claimed in the application for temporary injunction by the plaintiff for restraining the defendant from being installed as Jagatguru Shankaracharya could not have been granted by the trial Court after about 10 years of installation of defendant as Shankaracharya. The trial Court miscondected itself in proceeding to pronounce on various contention issues regarding qualification of defendant to hold the office of Shankaracharya. As observed above, the said questions were required to be decided after framing of the issues and after parties had an opportunity to lead evidence. On behalf of the defendant it was contended before the trial Court that issue as to whether defendant is qualified to hold Gaddi of Shankaracharya or not cannot for gone info at the stage of temporary injunction. The trial Court rejected the submission by giving a very inappropriate example, which was not attracted that all. The trial Court observed that if it is to be seen as to whether any person has passed High School certificate or no, and certificate is produced, which is not disputed than the conclusion could be drawn without oral evidence. The trial Court observed that since with regard to qualification admitted literature has been relied and documents/evidence have been filed, have decision regarding qualification can be validly given. It is relevant Jo note that in the plaint the plaintiff has not specifically mentioned any particular disqualification and only a general statement was made that defendant did not fulfil the qualification is provided in Muttamanay and Mahanusashanam. The learned counsel for the plaintiff elaborating his submissions has specifically referred to Sloks 10 and 11 Mahanusashanam. The above two sloks of Mahanusashanam lays down :-
(1) A person having full control over his senses, knowing Ved, Vedant, Yogas and well versed in all Shastras be only given Gaddi. Meaning thereby that persons occupying this Mutt should have above virtues.
(2) Person possessing the above virtues may be entitled to my Peth and if a person who is not possessed of above virtues occupies the Peeth, the learned men should dethrone him. Meaning thereby that persons without virtues even if became Muttadhish be deposed from the Gaddi.
21. The above qualification lays down general qualification regarding various things determination of which require evidence, of the parties and it was not within the scope of Order XXXIX Rules 1 and 2 of Code of Civil Procedure to embark upon consideration of question as to whether the defendant is possessed of above qualifications or not. In view of the above I am of the view that trial Court committed error of law apparent on record in granting temporary injunction and the order of the trial Court granting temporary injunction cannot be sustained.
22. Before the appellate Court the defendant pressed the submission that trial Court committed error in granting temporary injunction after about ten years of installation of defendant as Jagatguru Shankaracharya and the trial Court was not required to proceed to examine the issues regarding qualification of defendant to hold the Gaddi of Shankaracharya. The appellate Court also affirmed the view of the trial Court that defendant did not possess the qualification. The appellate Court also committed error in affirming the finding without adverting to the question is together after lapse of ten years of installation of defendant as Jagatguru Shankaracharya, the application for temporary injunction could have been allowed. In view of foregoing discussions both the submissions (first and second submissions) raised by counsel for the petitioner have substance.
23. The third submission of the counsel for the petitioner is that there was no prima facie case and balance of convenience in favour of the plaintiff for grant of temporary injunction and that findings recorded by courts below holding otherwise are perverse. It is true that this Court under Article 226 of the Constitution is not to reassess the material on record and examine the findings of fact recorded by trial Court while deciding the application for temporary injunction, but the trial Court while considering the prima facie case has come to the conclusions and recorded certain findings which were clearly contrary to final judgments pertaining to issues raised before the trial Court, hence it is necessary to have a closure look of the matter.
24. Both the parties admit that Swami Brahma Nand Sarswati was Shankaracharya of Jyotir Mutt till 20th May, 1953 when he died. According to defendant Swami Brahma Nand Sarswati executed a Will nominating four persons in order of seriatim in which Swami Shanta Nand Sarswati was at No. 1 to succeed the Gaddi of Jagatguru Shankaracharya. Swami Shanta Nand Sarswati, according to defendant, was installed on 12th June, 1953 as Jagatguru Shankaracharya whereas plaintiff's case is that Will of Swami Brahma Nand Sarswati was not a valid Will and installation of Swami Shanta Nand Sarswati on 12th June, 1953 was not valid and Swami Krishna Bodha Ashram was installed as Shnnkaracharya on 25th June, 1953. According to the defendant after Swami Shanta Nand Sarswati, Swami Vishiiudevanand Sarswati who was in serial No. 4 in the Will of Swami Brahma Nand Sarswati was installed in February, 1980 and thereafter the defendant was installed on 15th November. 1989. The plaintiff on the other side, claims that Swami Krishna Bodha Ashram fell ill in September, 1973 and he appointed the plaintiff to look after the Gaddi and also recommended the plaintiff to be the Shankaracharya. The plaintiffs case further is that Kashi Vidwat Parishad and Bharat Dharm Mandal approved the plaintiff as Jagatguru Shankaracharyu and plaintiff was installed on 7th December, 1973. The plaintiffs installation as Jagatguru Shankaracharya is aimed after death of Swami Santa Bodha Ashram whereas defendant claims his installation after Swami Shanta Nand Sarswati and Swami Vishnudevanand Saiswau. A suit being Suit No. 36 of 1965 was filed by Swami Shanta Nand Sarswati against Swami Krishna Bodha Ashram and two Ors. seeking permanent injunction: In the aforesaid suit the issues were framed regarding installation of Swami Shanta Nand Sarswati on 12th June, 1953 and installation of Swami Krishna Bodha Ashram on 25th June, 1953. The issue regarding Will dated 18th December, 952 executed by Swami Brahma Nand Sarswati was also framed.
25. Following issues were framed in Suit No. 36 of 1965:-
1. Whether late Swami Brahmanand Sarswati had nominated and constituted the plaintiff as the Shankaracharya of the Jyotir Mutta at Badrinath ?
2(a). Whether laty Swami Brahmanand Sarswati executed a Will dated 18.12.52 as alleged by the plaintiff in his favour ? If so had he a right (Sic) nominate his successor as alleged ?
(b). In case the will dated 18.12.52 is proved to have been executed was it obtained by the plaintiff under the conditions as alleged in paras 31 to 33 of the written statement ?
3. Whether the plaintiff was installed as Shankaracharya of Jyotir Mutt as alleged by him or he is only a trustee de son -tort as pleaded by the defendants ?
4. Whether the plaintiff possesses the requisite qualifications for holding the office of Shankaracharya a. laid down in 'Muttananay' and Mahanusashanam ?
5. Whether defendant No. 1 was installed as Shankaracharya of the Jyotir Mutt on 25.6.53 as alleged by him in his written statement and if so has he perfected his right as Shankaracharya by adverse possession as pleaded in para 41 of the written statement ?
26. Oral evidence was lead in Suit No. 36 of 1965 and after contest all the issues were decided on merits.
27. Issue Nos. 1 and 2 were decided in favour of Swami Shanta Nand Sarswati, the plaintiff of that case. It was held in judgment dated 15th January, 1970 on Issue No. 1, "thus there is no escape from the conclusion that reigning Shankaracharya a superior of the Peetha has not a right to nominate his disciple as a successor. The Court also while deciding Issue No. 2 held that Will dated 18th February, 1952 was duly executed by Swami Brahma Nand Sarswati and plaintiff Swami Shanta Nand Sarswati was nominated as Shankaracharya of Jyotis Peeth. Following is the ultimate finding on Issue No. 2 in the said judgment:-
"In the result, I hold that the plaintiff has proved the fact that the testator was in a sound and disposing state of mind, the testator signed the will lying in deposit with the District Registrar, Allahabad, a copy of which is paper No. 71 C.Ex. 152. I further hold that the will was executed by the free will of Swami Brahma Nand Sarswati. It is further my findings that the particulars of undue influence etc. as alleged in para 31 to 33 of the written statement have not been made out. Accordingly in the light of the will dated 18.12.52, it has to be held that late Shri Swami Brahma Nand Sarswati had nominated and constituted the plaintiff as Shankaracharya of Jyotish Peetha as alleged by the plaintiff. Thus Both the issues Nos. 1 and 2 (A and B) are decided in favour of the plaintiff, and against the defendant."
28. Issue No. 3 framed in the suit was also decided in favour of Swami Shanta Nand Sarswati by holding, "it has been proved to the hilt that according to the directions in the Will and the traditions plaintiff, Swami Shanta Nand Sarswati, was installers Shankaracharya 12th June, 1953 at Barhma Nivas, Varanasi". The issue was decided in favour of the plaintiff. Issue No. 4 was to the effect that whether plaintiff possessed the requisite qualification for holding the office of Shank acharya as laid down in Muttainanay and Mahanusashanam. The said issue was also decided by the court in favour of the plaintiff by holding :-
"In view of the above discussion my finding is that in view of that nomination as successor in the will of Swami Brahmanandji the late Jagatguru Shankaracharya the plaintiff does possess the qualification for holding the office of Shankaracharya as laid down in Muttamanay and Mahanushashan. More over as peculiar Judge I have no right to interfere with the conscience of the testator who nominated what he believed to be proper for administration of Mutt in future, nor can the Court sit in Judgment nomination."
29. Issue No. 5 was as to whether Swami Krishna Bodha Ashram (defendant No. 1) was installed as Shankaracharya of Jyotir Mutt on 25th June, 1953 as alleged in written statement. Issue was considered and decided against the defendant. After considering the issue elaborately the Court held that defendant No. 1 (Swami Krishna Bodha Ashram) could not have been appointed as Shankaracharya in preferred as to disciple. After recording findings on all the five issues in favour of Swami Shanta Nand Sarswati, the suit was decreed by following orders: -
"The suit is decreed as prayed. The defendants are restrained from proclaiming the defendant No. 1 as Shankaracharya 'and Peeth of the Jyotis Peetha and letting the defendant No. 1 from taking the Chhatra, Chamar, Dand and Singhasan as Shankaracharya of the Jyotis Peeth and to take out any procession as such during the Magh Mela in Allahabad. Cost easy."
30. The above judgment is a final judgment between Swami Shanta Nand Sarswati and Swami Krishna Bodha Ashram with regard to respective claim of to be Shankaracharya of Jyotir Mutt, the suit filed by Swami Shanta Nand Sarswati has been decreed. The counsel for the respondent-plaintiff conteaded that said decree dated 15lts January, 1970 was not against defendant No. 1, Swami Krishna Bodha Ashram, and the decree was only against defendants No. 2 and 3 of the said suit. The submission of counsel for the respondent-plaintiff cannot be accepted. The decree passed in the suit is very clear and explicit. The defendants were restrained from proclaiming defendant No. 1 as Shankaracharya and Peethadhishwar of Jyotis Peeth which clearly meant that all the defendants including defendant No. 1 were restrained. The Court had framed clear issues regarding claim of plaintiff, Swami Shanta Nand Sarswati, and Swami Krishna Bodha Ashram and having returned findings regarding functioning and installation of Swami Shatya Nand Sarswati on 12th June, 1953, the claim of Swami Shanta Nand 0Sarswati was clearly accepted and the claim o Swami Krishna Bodha Ashram of Installation as Shankaracharya on 25th June, 1953 was not accepted.
31. The learned counsel for the respondent-plaintiff thereafter submitted that plaintiff, Swami Swaroopanand Sarswati is not claiming through Swami Krishna, Bodha Ashram since his installation on 7th December, 1973 took place after approval of Kashi Vidwat Parishad and Bharat Dharm Mandal He submitted that by a trust deed dated 1lth May, 1941 all the land and site of Jyotis Peeth was given in trust to Swami Brahma Nand Sarswati by Bharat Dharm Mahamandal and Gtharat Dharm Mahamandal is entitled to nominate and appoint Shankaracharya of Jyotir Mutt and plaintiff having been approved by Bharat Mahamandal, he cannot be said to be claiming through Swami Krishna Bodha Ashram and judgment and decree in Suit No. 36 of 1965 is neither res judicata nor is relevant. In this writ petition at this stage it is not necessary to express any final opinion as to whether the judgment in Suit No. 36 of 1965 is res judicata or not but there cannot be any denial that the said judgment is a final judgment regarding claim of Shankaracharya of Jyotis Peeth between Swami Shanta Nand Sarswati, the plaintiff of that case and Swami Krishna Bodha Ashram, defendant No. 1. Swami Shanta Nand Sarswati was accepted as Shankaracbarya by the final judgment and installation of Swami Krishna Bodha Ashram dated 25th June, 1953 was not accepted. Swami Shanta Nand Sarswati after being installed on 12th June, 1953 continued to occupy the office till 27th February, 1980 when he relinquished the office in favour of Swami Vishnudevanand Sarswati, the third name which was mentioned in the Will of Swami Brahma Nand Sarswati dated 18th December, 1952. The Swami Krishna Bodha Ashram having not been accepted in the final judgment as Shankaracharya, there was no occasion of office falling vacant on the death of Swami Krishna Bodha Ashram in September, 1973 or installation of plaintiff on 7IU December, 1973. The contention of plaintiff that he is not claiming from Swami Krishna Bodha Ashram, hence the judgment in Suit No. 36 of 1965 is neither binding nor relevant cannot he accepted. In the plaint suit No. 513 of 1989 filed by the plaintiff, the plaintiff claimed Swami Krishna Bodha Ashram as Shankaracharya and after his death he claims himself to be installed. It is relevant to note paragraphs 27, 28 and 29 of the said plaint :-
"27. That Swami Krishna Bodha Ashram was duly installed Shankarachurya of Jyotishmath on or about 25.6.1953, join continued in that office till his death which took place on 10.9.1976.
28. That late Jagatguru Shnnkaracharya Swami Krishna Bodha Ashram fall ill (Sic) September 1973. He appointed the plaintiff to perform the duties of the Gaddi and to manage the affairs of the Peetha during the period of his illness. On 10.9.1973 Swami Krishna Bodha Ashram breathed his last at Delhi. The late Shankaracharya proposed the name of the plaintiff for the Gaddi as now Shankaracharya Jyotish Peetha before his death.
29. That once again the question of appointment arose and the remaining three Shankaracharya of the different Peethas, the Pandits, learned man, Sanyasis and various religious and followers of the Peetha, selected and appointed the plaintiff as Shankaracharya of Jyotish Peetha as he possessed all the qualifications prescribed in Mathamnaya and Mahanushashan."
32. Although in the plaint plaintiff also apart from his appointment by Swami Krishna Bodha Ashram and he having been proposed as Shankaracharya lays his claim on appointment by three Shankarncharyas, Pandits, learned Men and Sanyasis but his pleadings stems from claim Swami Krishna Bodha Ashram as Shankaracharya, final decision against Swami Krishna Bodha Ashram in Suit No. 36 of 1965 cannot be got over by plaintiff on above submission. Following conclusions and findings have been recorded by the trial Court in the impugned judgment for holding prima facie case of the plaintiff.
(i) The Will executed by Swami Brahma Nand Sarswati dated 18th December, 1952 on the oasis of documents on record does not appear to be prima facie correct and many doubts arise in hence installation of Swami Shanta Nand Sarswati as Shankaracharya on Jyotir Mutt prima fade is not proved and all the actions done by Swami Shanta Nand Sarswati as Shankaracharya are meaningless, waste, inoperative and void.
(ii) The installation of Swami Vishnudevanand Sarswati cannot be prima facie accepted as valid and work done by him as Jyotis Peethadhishwar are prima facie meaningless, waste, void and inoperative,
(iii) In view of the fact that installation or Swami Shanta Nand Sarswati and thereafter of Swami Vishnudeva Nand Sarswati prima facie being not valid and work done by them being prima facie inoperative, the function of defendant and installation of defendant-petitioner cannot be accepted prima facie correct.
33. In recording the above findings, the trial Court has gone against the final judgment delivered by the Court in Regular Suit No. 36 of 1965. The finding of the trial Court in the impugned judgment that Will dated 18th December, 1952 executed by Swami Brahma Nand Sarswati in favour of Swami Shanta Nand Sarswati was not valid and installation of Swami Shanta Nand Sarswati was also not prima facie valid were contrary to final judgment of Suit No. 36 of 1965. The judgment in Suit No. 36 of 1965 was between Swami Shanta Nand Sarswati and Swami Krishna Bodha Ashram in which both were claiming Gaddi of Shankaracharya. In deciding temporary injunction application the trial Court committed error apparent on face of record in ignoring the final judgment of Suit No. 36 of 1965. After recording finding that installation of Swami Shanta Nand Sarswati and thereafter Swan Vishnudevanand Sarswati was not valid, the trial Court held that installation of defendant-petitioner is not prima facie valid. It is relevant to note that Vishnudevanand Sarswati was installed in February, 4980 and there was no challenge to his installation or functioning by any one in any Court. The suit out of which present writ petition arises was filed on 9th November, 1989 when defendant was scheduled to be installed on 15th November, 1989 as Shankaracharya.
34. The trial Court while considering the prima facie case of the plaintiff having ignored the final judgment in Suit No. 36 of 1965 regarding validity and competence of Will dated 18th December, 1952 and installation of Swami Shanta Nand Sarswati as Shankaracharya on 12th June, 1953 has committed apparent error of law and conclusion of the trial Court finding prima facie case of the plaintiff cannot be sustained. In view of the decision in Suit No. 36 of 1965 that Swami Krishna Bod ha Ashram was not validly installed as Shankaracharya on 25th June, 1953 there was no prima facie cast in favour of the plaintiff of installation on 7th December, 1973 after the death of Swami Krishna Bodha Ashram in September, 1973. After installation of Swami Shanta Nand Sarswati on 12th June, 1973, he continued to occupy the Gaddi and relinquished it only on 27th February, 1980 and thereafter Swami Vishnudevanand Sarswati was installed. To get over the decree in judgment of Suit No. 36 of 1965, it was contended by plaintiff before the appellate Court that in Suit No.3 of 1954 (under Section 92 of Code of Civil Procedure) finding was recorded by the trial Court that Swami Shanta Nand Sarswati was not qualified, hence the judgment in Suit No. 36 of 1965 is not res judicata and the said judgment is not a correct judgment. The counsel for the plaintiff-respondent No. 3 has also placed much emphasis on the findings on Issue No. 3 in Suit No. 3 of 1954 and contended that said findings have persuasive value and obiter. The suit under Section 92 of Code of Civil Procedure was dismissed up to the apex Court as noted above. Against the judgment of trial Court in Suit No. 3 of 1954 dated 20th October, 1962 first appeal was filed in this Court being First Appeal No. 385 of 1962 (Sri Swami Permanand Sarswati and Ors. v. Ramji Tripathi). This Court itself in the judgment while dismissing the first appeal observed:-
"..............We have no doubt in our mind that this suit as framed under Section 92 of C.P. Code was not maintainable. Our finding on this question is conclusive of the suit and as said above, we need not express any opinion or record findings on the other issues arising in the suit. But we must make it clear that the given by the trial court on all other issues after nothing but merely in the nature of obiter and ineffective in law as the suit being not maintainable under Section 92 of the C.P. Code, the Court had no jurisdiction to determine the other controversies arising on the pleadings of the parties........................"
35. In view of the above observations of this Court the findings recorded in Suit No. 3 of 1954 by the trial Court regarding qualifications of Swami Shanta Nand Sarswati loses its for Furthermore, in Suit No. 36 of 1965 the issue regarding qualification was elaborately considered in which the Court also considered the judgment in suit under Section 92 of Code of Civil Procedure and held the plaintiff, Swami Shanta Nand Sarswati, possesses qualifications for holding the office of Shankaracharya. The judgment of Calcutta High Court reported in AIR 1999 Calcutta 29 Full Bench; Ratanlal Nahata and Ors. v. Nandita Bose and Ors. relied by counsel for the plaintiff-respondent that obiter have persuasive value does not help the plaintiff in any manner. The Calcutta High Court in the aforesaid judgment was considering the obiter of Privy Council and observed that obiter may have persuasive value. In view of the observation of this Court in first appeal against the judgment dated 20th October, 1962 as noted above, the observations and findings in Suit under Section 92 of Code of Civil Procedure loses its significance. Another decision relied by counsel for the plaintiff-respondent is AIR 1941 Calcutta 193; Gadadhar Chowdhury and Ors. v. Sarat Chandra Chakravarty and Ors. The Division Bench of Calcutta High Court in the aforesaid judgment laid down that though the Recitals and findings in a judgment not inter parties are not admissible in evidence, such a judgment and decree are admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed. I do not see how the above judgment helps the plaintiff in any manner. The above proposition laid down by Calcutta High Court supports the contention of the defendant that judgment of Suit No. 36 of 1965 which was not inter parties judgment is admissible to prove the fact that decree was made in a suit between certain parties and for finding out for what subject matter the suit had been decreed.
36. The other decisions relied by counsel for the plaintiff-respondent also need to be considered, Murh reliance has been placed by counsel for the plaintiff-respondent on AIR 1916 Privy Council 1916; Ram Prakash Das v. Anand Das and Ors. The Privy Council in the above judgment laid down that where in any mutt the retiring mahant has the right to select K successor in office, the nomination must fall upon one who is competent to hold his important sacred office. For instance, the person chosen may be disqualified by reason of bodily deformity, of bodily disease such as leprosy, of diseases of the mind, or by reason of his leading a life which is immoral or is inconsistent with the religious vows of the brotherhood, in all such cases the nomination would be void. There is no applicability of the aforesaid proposition in the present case. The stage for deciding the qualification of the defendant had not arisen since determination as to whether defendant was qualified to hold office could have been made only at the time of deciding the issues after taking evidence of the parties. While deciding an application of temporary injunction under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, the civil Court was not required to embark upon the enquiry regarding qualifications whereas the allegation that defendant is not qualified was refuted and denied by the defendant in the written statement as well as in the affidavits. Reliance has been placed by counsel for the plaintiff-respondent upon M/s Gujarat Bottlings Case (supra) which judgment has already bet, noted in this judgment. The principles laid down for grant of an interlocutory injunction in the above judgment has already been extracted above. The apex Court also held in the said judgment that under Order XXXIX of Code of Civil Procedure, the jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and the Court will, apart from other consideration, also look to the conduct of the party. There can be no dispute with regard to the proposition laid down by the apex Court in the above case. The question as to whether the grant of ;oral injunction in favour of plaintiff respondent is within the four corners of Order XXXIX Rules 1 and 2 of Code of Civil Procedure has already been considered in earlier part of this judgment. The next judgment of apex Court relied by counsel for the plaintiff-respondent is JT 1996(3) SC 21; Swetambar Sthanakwasi Jain Samiti and Anr. v. the Alleged Committee of Management Sri R.J.L College, Agra and Ors. In the aforesaid judgment the apex Court held that High Court will not permit the extraordinary jurisdiction to be converted into a civil court under the ordinary law, when a suit is pending between the parties, the interim and miscellaneous orders passed by the trial Court cannot be challenged by way of writ petition under Article 226 of the Constitution. From that- facts of the aforesaid case it is dear that an order of interim injunction dated 4th April, 1994 was passed by Additional Civil Judge, Agra. An application was filed for impleadment before the Additional Civil Judge, which was rejected. The order granting interim injunction as well as the order rejecting the application for impleadment was challenged in this Court by means of writ petition under Article 226 of the Constitution. The writ petition was allowed by; this Court against which an approval as filed before the apex Court. The apex Court in view of the facts of that case laid down in paragraphs 7 and 8 as under:-
"7. it is not disputed that the remedy of appeal before the District Judge was available to the respondents against the order of the Additional Civil Judge by which the learned Judge granted interim injunction against the respondents. The order dated April 5, 1994 rejecting the applications of respondent No. 2 impleadment could also be challenged by way of revision. The High Court also noticed this aspect in the following words:
"Of course, he could have availed the jurisdiction of the District Judge, who has an authority to hear appeal as well as revision. But some how or the other he has been advised to approach this Court"
8. We are of the view that the High Court not "only fell into patent error but also exceeded" its jurisdiction under Article 226 of the Constitution of India. Though the jurisdiction of the High Court under Article 226 of the Constitution is not confined an issuing the prerogative writs, there is a consensus of opinion, that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial Court -against which the remedy of appeal or revision is available cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or re visional court and interfere with the interim/ miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum."
37. From the observation of the apex Court as quoted above, it is clear that the apex Court took the view that since remedy of appeal before the District Judge was available against an order of Civil Judge granting interim injunction and the order rejecting the application for implement, the High Court fell into patent either in entertaining the writ petition. The apex Court also held in the aforesaid case that when a suit is pending between two parties, the interim and miscellaneous orders against which remedy of appeal or revision is available, the same cannot be challenged by way of writ petition under Article 226 f the Constitution. In the present case against the order of trial Court a miscellaneous appeal under Order XLI1I Rule 1 of Code of Civil Procedure was filed by the defendant-petitioner which has been dismissed by the appellate Court and this writ petition has been preferred after availing the statutory remedy of miscellaneous appeal under Order XLIII Rule 1 of Code of Civil Procedure. The ratio laid down by the apex Court in the above judgment is not attracted in the present case. Further reliace has been placed by counsel for the plaintiff-respondent upon Division Bench judgment of this Court in 1996 ACJ 573; Manoj Kumar Singhal and Anr. v. Bank of India and Ors. and the judgment of apex Court in 1996 ACJ 174; Lumbini Nagar Co operative Housing Society Ltd. and Ors. v. Union of India and Ors. In above cases, it has been laid down that temporary injunction granted in discretion of the trial Court on sound judicial principles need no interference. There cannot be any dispute to the proposition laid down in the above cases. The question, however, is as to whether the trial Court granted interim injunction in favour of the plaintiff in exercise of sound judicial principles. As observed above, the trial Court having exceeded its jurisdiction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, the grant of injunction was not justified. The counsel for the respondent-plaintiff has submitted that Court under Article 226 of the Constitution will not interfere with findings of fact like court of appeal. Reliance has been placed on AIR 1975 SC 1297; Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr. and AIR 1984 SC 38; Mohd. Yunus v. Mohd. Mustaqim and Ors. The apex Court in the aforesaid decisions have laid down that the power of superintendence of High Court under Article 227 is to be exercised most sparingly and only in appropriate cases and the said jurisdiction cannot' Smoked to correct an error of fact which only a superior court can do in exercise of its statutory power as" a court of appeal. It has further been laid down that High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal.
38. The ambit and scope of Articles 220 and 227 of the Constitution has been considered by the apex Court in several decisions. The apex Court in AIR 1954 S.C. 215; Waryam Singh and Anr. v. Amarnath and Anr., held that power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. The scope for issuing a writ of 'certiorari' was extensively considered by the Constitution Bench of apex Court in AIR 1955 SC 233; Hari Vishnu Kamath v. Ahmad Ishaque and Ors. The grounds for issuing writ of certioran have been succinctly laid down by the apex Court in paragraphs 21, 22 and 23 of the above judgment which are extracted below:
"(21). Then the question is as to whether there are proper grounds for the issue of 'certiorari' in the present case. There was considerable argument before us as to the character and scope of the writ of 'certiorari' and the conditions under which it be issued. The question has given considered by this Court in Parry So Co. v. Commercial Employees' Association, Madras', AIR 1952 SC 179 (L), -'Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 (M); - 'Ebrahim Aboobakar v. Custodian General of Evacuee Property New Delhi', AIR 1952 SC 319 (N) & quite recently in AIR 1954 SC'440 (C). On these authorities, the following propositions may be taken as established: (1) 'Certiorari' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) 'Certiorari' will also be issues when the Court or Tribunal nets illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles or natural justice. (3) The Court issuing a writ of Certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court untill not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal first that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in 'certiorari'. "His propositions are well settled and are not in dispute.
(22) (4) The further question on which there has been some controversy is whether a writ can be issued, when the decision of the interior Court or Tribunal is erroneous in law The question came up for consideration in Northumberland Compensation Appeal Tribunal, Ex parte Shaw', 1951-1 KB 711 (O), and it was held that when a Tribunal made a "special order" and the reason given in that order in support of the decision were bad in law, 'certiorari' could be granted. It was pointed out bi Lord Goddard, C. J. that that had always beet understood to be the true scope of the power (1878) 4 AC 30 (D), and - 'Rex v. Nat Bell upon Letter dated', 1929-2 AC 128 (P), were quoted it support of this view. In 1878-4 AC 30 (D), Lori Cairns C. observed as follows:
"If there was upon the face of the order of On court of quarter session anything which showed that that order was erroneous, thx Court of Queen's Bench might be asked ft have the order brought into it, and to look a the order, and view it upon the face of it, and the court found error upon the face of it, to put an end to its existence by quashing it".
In 1922-2 AC 128 (P), Lord Sumner said:
"That supervisions goes to two points; one the area of the inferior jurisdiction and the qualifications and conditions of its exercise' of other is the observant e of the law in the course of its exercise".
The decision in 1951-1 KB 711 (O), was taken appeal and was affirmed by the Court of Appeal in 'Rex v. Northumberland Compensate) Appeal Tribunal; Ex parte Shaw', 1952-1 KB 33 (O). In laying down that an error of law was ground for granting 'certiorari' the learned Judge emphasised that it must lie apparent on the fact of the record. Denning, L.J. who stated the power in record and General terms observed:
"It will have been seen that throughout all the cases there is one governing rule: 'certiorari' only available to quash a decision for error of law if the error appears on the face of the record'"
The position was thus summed up by Morris, L.J.:
"It is plain that certiorari' will not be issued as the cloak of an appeal in disguise. It does not lie in order to bring an order decision for rehearing of the issue raised in the proceedings It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown."
In AIR 1952 SC 192 (M), it was observed by this Court that under Article 226 the writ should be issued, "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of f, or violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record'."
In 'AIR 1954 SC 440 (C)' the law was thus stated:
An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the proceedings', when it is based on clear ignorance or disregard of the provisions of ' In other words, it is patent error which can of corrected by certiorari' but not a mere wrong decision "
(23). It may therefore the taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest -on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts o£ a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either sir were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Borough Municipality AIR 1953 Bom 133 (R), that no error could be said to be apparent on the face of the record if it was not self-evident, & if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of live record cannot be defined precisely or exhaustively, there being an element of indefinite ness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
39. In (1998)8 S.C.C. 310; Baby v. Travancore Devaswom Board and Ors. following was laid down by the apex Court in paragraph-6:
"6. But that, in our opinion, is not the end of the mailer. The High Court had still powers under Article 227 of the Constitution of India to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the powers of revision under Section 103 of the Act. In that view of the matter, the High Court rightly set aside the orders of the tribunals. We, do not, therefore, interfere under Article 136 of the Constitution of India. The appeals fail and are dismissed."
40. A Constitution Bench of the apex Court in (2001)1 Supreme Court Cases 4; State of Maharashtra v. Milind and Ors. laid down following in paragraph 33:-
"33.......................... The power of the High Court under judicial review against an order of inferior Tribunal being supervisory and not appellate, the High Court would be justified interfering with the conclusion of the Tribunal, only which it records a finding that the inferior Tribunal's conclusion is base ' upon exclusion of some admissible evidence of consideration of some inadmissible evidence or the interior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record."
41. A recent judgment of the apex Court has again after referring to earlier cases of the apex Court considered the scope of Articles 226 and 227 of the Constitution in (2003)6 Supreme Court Cases 675;
Suryadev Rat v. Ram Chander Rai and Ors. In the above case order passed on Civil Judge refusing an application for temporary injunction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure and the appellate order confirming the said order were challenged. The apex Court held that the High Court had jurisdiction both under Articles 226 and 227 of the Constitution to interfere with the order passed on temporary injunction application in pending suit. The conclusions of the apex Court were summarised in paragraphs 38 & 39 of the said judgment which is extracted below:-
"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of rejection and slate the same as hereunder (1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been each tried by CPC Amendment Act 46 of 1999 are neitherless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (Hi) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and there by occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate court within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not [permitted by law and failure of justice or grave injustice has 1 occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied; (i) the error is manifest and apparent on the face of the proceedings such as when it is based on dear ignorance or utter disregard of to provisions of law, and (iii) a grave injustice or gross failure of justice lias occasioned thereby.
(6) A patent error is an error which is self-evidence i.e which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court this chosen to take on view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory Jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the Us.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost -similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to a writ of 'certiorari', the High Court may annual or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof In exercise of pennsory jurisdiction the High Court may not only five suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in suppression or substitution of the order of the subordinate court as the court should have made in the farts and circumstances of the case.
39. Though me have tried to lay down 1 broad principles and working rules, the fact remains that the parameters for exercise of Jurisdiction under Articles 226 or 227 of the Constitution cannot rejected down in a strait jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may, earn immunity from correction. The facts circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error f jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where "a stitch in time would save nine". Al the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge."
42. After laying down brought principles the apex Court in paragraph 39 of the above judgment had observed that parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be died down in a strait-jacket formula or rigid rules.
43. From the law laid down by the apex Court in the above mentioned cases, it is clear that writ can be issued for correcting errors of jurisdiction when a subordinate Court is found to have acted in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction or has passed an order excluding some admissible evidence or that the finding is such which no reasonable man can arrive at on the materials on record.
44. Applying the principles laid down by the apex Court in the above judgment, it is clear that trial Court lost sight of SCODC of granting a temporary injunctions under Older XXXIX Rules 1 and 2 of Code of Civil Procedure. As observed above, the trial Court ignored the final judgment in Suit No. 36 of 1965 which was relevant with regard to dispute regarding the office of Shankaracharya between Swami Shanta Nand Sarswati and Swami Krishna Bodha Ashram. Sufficient grounds have been made out for exercising writ jurisdiction of this Court under Article 226 of the Constitution. The error committed by the trial Court was error of the apparent on record which can be corrected by this Court in the present writ petition. This Court has not proceeded to examine the materials of record to record any finding by itself. The preposition laid down by this Court in Babhutmal Raichand Oswal's case (supra) is not attracted in the present case.
45. It is also relevant to note that plaintiff himself immediately after his alleged installation on 7th December, 1973 filed a suit being Suit No. 1-A of 1974 in the Court of District Judge, Seoni (M.P.) which has subsequently been transferred to District Court, Allahabad. In Suit No. 1-A of 1974 the plaintiff has prayed for following reliefs :
"(a). That it be declared that the plaintiff is duly qualified and installed successor to the Gaddi of Jagat Guru Shankaracharya of Jyotish Peeth at Badrikashram and the plaintiff is the owner and trustee of the properties as detailed on Schedule A at the foot of the plaint.
(b). That it be declared that the alleged Will dated 18.12.52 said to have been executed by Sh. Jagat Guru Shankaracharya Sh. Brahmanand Sarswati in favour of defendant No. 1 or in favour of defdts 1 to 4 was not duly executed and in any case it was obtained fraudulently and under undue influence and defendant No. 1 or any other defdt. did not possess such qualifications which are necessary for the nomination as successor to the Jagat Guru Shankaracharya of Jyotishpeeth at Badrikashram as prescribed in the books of command written by Adi Jagat Guru Shankaracharya. "
(c). That the defendant No. 1 or who ever defendants is found in possession be ejected from the properties detailed in Schedule A at the writ of the plaint and actual possession thereof be given to the plaintiff as the Jagat Guru Shankaracharya and as such the trustee of Jvotishpeetha, along with all the contents.
(d). That defendant No. 1 be restrained by means of perpetual injunction from proclaiming himself as Jagat Guru Shankaracharya of Jyotish peeth, or acting as such
(e). That a decree of mesne profits be passed in favour of the plaintiff against the defendants at the rate of Rs. 20,000/- (Twenty thousand) per year from the date of the suit till the possession is restored to the plaintiff."
46. The plaintiff having already filed a suit for declaration in the year 1974 praying himself to he declared as duly qualified and installed successor of Japatguru Shankaracharya Jyotis Peeth and having challenged the Will dated 18th December, 1952 and succession of defendants and for possession of the Mutt properties; and he having failed to obtain any order in the said suit there cannot be any prima facie case in the year 1999 for grant of temporary injunction in Suit No. 513 of 1989 that too after ten years of installation of Swami Vasudevanand Sarswati. In view of the foregoing discussions, it is fully established "that plaintiff had no prima facie case or balance of convenience Peeth grant of temporary injunction and courts below have committed error in allowing the Application 6-C.
47. The fourth and fifth submissions raised by counsel for the petitioner are that suit filed by plaintiff was not maintainable, the Court had no jurisdiction to entertain the suit, the suit is barred by res judicata and Section 92 of Code of Civil Procedure. The application filed the defendant for deciding the said issue; preliminary issue has already been rejected by the trial Court on 27th August, 1998 against which revision has also been dismissed by the District Judge, it is not necessary to express any opinion on the aforesaid submissions. It will be open for the petitioner to press the said issues in the trial Court and also to submit before the trial Court that the said issues be decided a preliminary issue as has already been observed by the District Judge while deciding Revision No. 1046 of 1998 filed by the petitioner in judgment dated 18th September, 1998.
48. In above view of the mailer, it is not necessary to consider the various submissions and derisions relied by counsel for the parties on the aforesaid submissions.
49. The last submission raised by counsel for the petitioner is that plaint of Suit No. 513 of 1989 be rejected. The submission of counsel for the petitioner is that Suit No. 513 of 1989 is nothing but an abuse of process of the Court and this Court in exercise of its jurisdiction under Article 226 of the Constitution should reject the plaint. The counsel for the petitioner placed reliance on various decisions in support of the above submission, namely, AIR 1977 S.C. 2421;
T. Arivandandam v. Satyapal and Anr., AIR 2000 Alld. 58; Geeta Pump (Private) Limited v. District Judge Saharanpur and Ors., 2002 ALJ 247 (DB); Monika Ohri and Ors. V. Amit Misra and Anr., (1988)1 AWC 537 (DB); Gulab Chandra v. the Munsif West, Allahabad and Ors., 1986 AWC 925; Prem Shanker Tripathi v. the First Additional District Judge, Allahabad and Ors., 1987 AWC 235; Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and Ors. and 2002 ALJ 2271; Dr. Chandra Mohan Singhal and Ors. v. State of U.P. in Revenue Department. The aforesaid decisions do support the contention of the petitioner that this Court can in exercise of jurisdiction under Article 226/227 of the Constitution may reject a plaint, however, the said power can be exercised in appropriate case after considering the facts of case. In Suit No. 513 of 1989 the petitioner has already filed an application under Order VII Rule 11 of Code of Civil Procedure for rejection of the plaint. The said application has already been rejected by the trial Court on 27th August, 1998 against which revision has also been rejected and the issue has not been further carried by the petitioner. May as it be from the facts of this case it cannot be say that filing of Suit No. 513 of 1989 is abuse of process of the Court by the plaintiff. The cause of action of filing the suit as disclosed in the plaint arose to the plaintiff on 7th November, 1989 and 8th November, 1989 and defendant also has claimed his installation as Shankaracharya on 15th November, 1989, apart from other submissions in Suit No. 513 of 1989, the plaintiff has challenged the competency of defendant to assume the office of Shankaracharya which issue was never considered or decided in any earlier suit. Furthermore, it is open for the petitioner to pray for decision of issues a preliminary issue which relate to jurisdiction or maintainability of the suit. The decisions relied by counsel for the petitioner were based on their own facts and do not help the petitioner in the present case. In above view of the matter I am not inclined to accept the submission of the petitioner that plaint of Suit No. 513 of 1989 is abuse of process of the Court. The relief for quashing the plaint is refused.
50. The suit has been filed by the petitioner in the year 1989, more than 14 years have elapsed and suit has not yet proceeded on merits. As observed above, the office of Shankaracharya of Jyotis Peeth is an office of great significance and it is in the interest of justice that the dispute pertaining to the said office be decided as early as possible. The counsel for the parties have stated that issues have already been framed in the suit. In view of the facts of the present case, ends of justice will be served in directing the Court concerned where Suit No. 513 of 1989 is pending to proceed with the suit itself expeditiously, preferably, within a period of one year from the date of production of a certified copy of this order before the court concerned. The Court will not allow any unnecessary adjournment to the parties and endeavour will be made to decide the suit as early as possible.
51. In view of the foregoing discussions, the order dated 22nd February, 1999 passed by Additional District Judge (Junior Division) II, Allahabad allowing the temporary injunction application (6-C) and the order dated 27th April, 2000 passed by Miscellaneous Appeal No. 4 1 of 1999 are quashed.
52. The writ petition is partly allowed to the extern as indicated above.
53. Parties will bear their own costs.