JUDGMENT S.R. Singh, J.
1. Subject-matter of impugnment in the instant petition is the appellate order dated 25.11.97 by which the learned District Judge, Ghazipur set aside the order dated 29.9.1997 passed by the Civil Judge (Sr. Division) Ghazipur, thereby interdicting the defendant herein impleaded as respondent No. 3 by means of a temporary injunction from interfering with the functioning of the second petitioner--Sri Swami Baikrishna Yati Maharaj as Mahant of the Math known as Sri Hathiya Ram Math, district Ghazipur and further from damaging the Math-property in any manner whatsoever.
2. The suit from which stems the instant petition was instituted by the petitioners for the relief of a permanent injunction refraining the defendants from interfering with the functioning of the plaintiff-petitioner No. 2 as Mahant of Sri Hathiya Ram Math, Ghazipur and its sub-altern Maths described at the foot of the plaint and from damaging movable and immovable properties of the Math in any manner whatsoever. Facts leading upto the filing of the suit, have been delineated in the impugned order and I think it unnecessary to swell this judgment by recapitulating all those facts all over again. However, a brief resume of the relevant facts necessary to unfold the legal controversy in the instant petition is that Pavahari Swami Bal Krishna Yati was appointed as Mahant of the Math by the quantum Mahant Pavahari Swami Vishwanath Yati in 1954 and the defendant Bhawani Nandan Yati assumed the mantle of Mahant on 23.2.96 and on 21.3.96, a 'Ntyuktt Patra. Wasiyatnama' was authenticated by execution and registration in that regard. The defendant-respondent No. 3 is said to have been unseated as Mahant of the Math on 1.5.1997 owing to his alleged blasphemous utterances profaning his own Guru--the petitioner No. 2 ; his proclivities into sinful activities subversive of the recognised and time-tested traditions of the Math ; leading an impious life by consorting with anti-social elements and his deviating from Sanyas Dharm as delineated in the plaint. Thereafter, the petitioner No. 2 was consecrated Mahant of the Math second time on 10.5.97. The suit was instituted inter alia on the allegations that the defendant though removed from the office of Mahant, had been intruding himself into the functioning of the plaintiff-petitioner No. 2 as Mahant of the Math. An application for temporary injunction attended with an affidavit, was also filed, it was resisted by the defendant-respondent No. 3 Inter alia on the ground that his alleged removal suffered from the blemish of illegality and was void. The trial court, upon appraisal of the materials on record, opted in favour of grant of temporary injunction on the reasonings, inter alia, that the plaintiffs succeeded in making out a prima facie case for grant of temporary injunction ; that refusal to grant temporary injunction could visit upon the plaintiffs with irreparable injuries ; and that the balance of convenience leaned in favour of the plaintiffs. On appeal under Order XL1II, Rule 1. C.P.C., the District Judge upturned the order passed by the trial court and it is in this perspective that the plaintiffs have landed up in this Court by means of the present petition, challenging the legality of the order passed by the District Judge.
3. The nub of the submissions made by Sri Gajendra Pratap appearing for the petitioners is that the trial court had granted the temporary injunction prayed for on pro per-self-direction to the relevant factors and the appellate court, it seems, exercised the appellate power sans any deference to the fundamental principle governing exercise of appellate power in an appeal directed against an interlocutory order, granting injunction which is both temporary and discretionary. The removal of defendant from the office of Mahant, urged the learned counsel, accorded well with clause (4) of the document dated 21.3.96 described as 'Niyukti Pattra', a copy of which has been annexed as Annexure-7 to the writ petition and the defendant having accepted the said document and having reaped the advantage thereof, could not be permitted to wriggle out of it and repudiate the terms and conditions of appointment as visualised in the said document, in that, proceeds the submission, the appointment of defendant as Mahant became a fait-accompli only on execution of the said document. The trial court's order, it was urged, being predicated upon cogent reasons, ought not to have been interfered with in appeal by the District Judge, without proper-self-direction to the reasons assigned in the order passed by the trial court. Sri R. N. Singh, learned senior advocate appearing for the respondents repudiated the submissions made by Sri Gajendra Pratap vehemently marshalling his submissions with reasons that the appellate order is a lucid and well-reasoned order and calls for no interference by this Court under Article 226/227 of the Constitution ; that the suit would fail even if the plaint case be accepted in its entirety in that removal of Mahant can be accomplished on valid and good grounds only through Court and not by unilateral act of the erstwhile Mahant and that too only if there is any usage or customs in vogue in the institution and not otherwise and since, proceeded the submissions, no custom had been pleaded in the plaint, the removal of defendant from the office of Mahant was wholly illegal and void, it was contended by Sri R. N. Singh that the petitioner, Swami Bal Krishna Yati, having relinquished the office of Mahant and the defendant having been ascended as Mahant, without any qualms or reservations, had no right to dislodge the latter from the office of Mahant by his unilateral act of rescinding the appointment, it was also canvassed that no right for revocation of appointment was reserved by the Mahant-Swami Balkrishna Yati at the time of initial appointment and ascension of the defendant to the office of Mahant on 23.2.96 and even if revocation be assumed to be permissible in terms of the document dated 21.3.96, the petitioner No, 2 could not appoint himself as Mahant of the Math.
4. For proper appraisal of the contentions raised at the bar, it is necessary to ascertain the true nature of an order granting temporary injunction and the scope and ambit of appellate power in an appeal under Order XLIII, Rule 1, C.P.C, arising out of an order granting temporary injunction. As observed by the Supreme Court in Wander Ltd. v. Antox India (P.) Ltd., 1990 (Suppl) SCC 727 ; "Usually, the prayer for grant of interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged infringement are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well-established principles of an administration of this form of interlocutory remedy which is both temporary and discretionary." The Supreme Court in that case has adumbrated the following principles governing exercise of appellate power.
"In such appeals, the appellate court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken different view may not justify interference with the trial court's exercise of discretion."
5. In Nagar Panchayat Luxur v. District and Sessions Judge, Hardwar. 1995 RD 387, I have the privilege or plumbing the plenitude of power of the appellate court in an appeal arising out of an order under Order XXXIX, Rule 1. C.P.C, it was held in that case as under :
"Indubitably, the power of appellate court is co-extensive with that of the trial court but it is equally well-settled that in an appeal directed against discretionary order, the appellate court is supposed to address itself to the reasons assigned by the trial court if it seeks to upset the judgment/order of the trial court. A discretionary order passed by the trial court on proper-self-direction to the factors relevant to exercise of power under Order XXXIX, Rule 1, C.P.C, cannot be interfered with an appeal under Order XL1II, Rule 1, C.P.C, except on categorical finding that the order appealed against was either-passed without proper self direction or it was otherwise illegal or perverse, in JT 1993(6)SC 1189,it has been held by the Supreme Court that whenever an appeal is heard it is the duty of the appellate court to examine the finding of the trial court and if the finding of the trial Court are not correct to deal with it."
In Shah Babu Lal Khirnji v. Jaya Ben, AIR 1981 SC 1786 Para 119 at p. 1817, the Supreme Court while examining the question as to when an interim order would have the traits and trapping of finality in order to be a 'judgment', held as under:
"Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience, or to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes, must be presumed to be correct unless it is ex-facie legally erroneous or causes grave and substantial injustice."
6. What flows from the decisions referred to above, is that the judicial review by appellate court of a discretionary and interlocutory order passed by Court of first instance is circumscribed to limited grounds, in an appeal arising out of an order granting or refusing temporary injunction, the appellate Court is not to review the exercise of discretion de novo and the order passed by the court of first instance is not to be interfered with unless it is found that the court of first instance had been oblivious of fundamental principles of law governing grant or refusal of temporary injunction or where it is found to have disregarded some principle of law, as by acting in bad faith or arbitrarily or under the influence of irrelevant consideration or by ignoring relevant consideration. The judgment should ex-facie show that the principles aforestated were properly applied to the facts of a given case. The appellate order in the instant case is demur able in that it does not seem to defer to the aforestated principles governing exercise of appellate power in an appeal arising out of interlocutory and discretionary order. A perusal of the appellate judgment would be eloquent of the fact that first ten-page-length of the order embodies pleadings of the parties and next 10 pages have been devoted in reproduction of the submissions advanced across the bar. The last two paragraphs of the impugned order which contain the findings and conclusions reached by the appellate court, are quoted below :
^^mHk; i{kksa ds rdks dks euu o ifj'khyu djus ls ;g rF; izdV gksrk gs fd gfFk;kjke eB dk [email protected];FkhZ la[;k&1 dks mlds xq: iokgkjh fo'oukFk ;fr us 2-12-1954 dks uxj ds izfrfZ"Br ukxfjdksa rFkk fo}r lekt o v[kkM+ksa ds egkRekvksa o e.Mys'ojksa rFkk la;klhx.k vkfn ds le{k eB dh jhfr ,oa ijEijkuqlkj pknj egUFkh nh vkSj egUFk fu;qDr fd;k vkSj bl laca/k esa izys[k 6-12-1954 fu"ikfnr dj iathr djk;k x;k] blesa dgha Hkh mkj izns'k ljdkj f'k"; e.My la;klh lekt ds ekU;
egkRekvksa }kjk fu;qDr egUFk dks fu"dkflr dj o mlds LFkku ij nwljs dks fu;qDr djus dh dksbZ ijEijk vfHkfyf[kr ugha dh x;h gS A okn izR;FkhZ la[;k&1 iz'uxr eB dk laLFkkid egUFk Lohdkjr% ugha gS A ,slh voLFkk esa fcuk fdlh ekU; o LFkkfir ijEijk ds dkxt la[;k 11x ds izlrj 4 dk mYys[k fd;s tkus dk dksbZ vkSfpR;
ugha] fQj lkoZtfud eB dk dksbZ fu;qDr egUFk 'kknh dj ysrk gS ;k 'kjkc dk lsou djus yxrk gS ;k os';k xeu djus yxrk gS rks mls U;k;ky; }kjk gh gVk;k tk ldrk gS A tc rd dh ,slh ijEijk u gks A fdUrq [email protected];FkhZ la[;k&2 us ,slh dksbZ ekU; ,oa LFkkfir ijEijk ugh n'kkZ;h gS ftlls fd fu;qDr egUFk dks m-iz- ljdkj f'k"; laU;klh lekt ds ekU; egkRekvksa ds }kjk ;k iwoZ egUFk }kjk gVk;k tk lds A iqukp [email protected] vc v/khuLFk U;k;ky; esa okn lafLFkr fd;k x;k rc pkrqekZl gsrq lkseukFk xqtjkt izkUr esa orZeku Fkk A eB dh lEifk ds lapkyu eaa egUFk vxj dksbZ dk;Zokgh djrk gS ftls vU; egkRekx.k ;fn eku Hkh ys fd ilUn ugha djrs rks ml vk/kkj ij mldk fU"dklu ugha gsk ldrk A blls ;g Li"V gS fd [email protected];FkhZ la[;k&1 us [email protected] us eB dh ijEijk ds vuqlkj fnukad 23-2-96 dks egUFk ds in ij xn~nh ulhu fd;k x;k Fkk vkSj tks ckn esa 21-3-96 dks izys[k fu"ikfnr fd;k Fkk og rks dsoy ek= mldh ifjiqf"V ek= Fkh A fo}ku v/khuLFk U;k;ky; us bl laca/kksa es tks fu"d"kZ fudkyk gS og lgh ugha gS A vr% eSa [email protected];hFkhZ la[;k&1 ds i{k esa dksbZ izFke n`"V;k ekeyk cuuk ugh eku ldrk A fo}ku odhu izR;FkhZx.k us ;g rdZ fn;k fd eB o mldh laifk;ksa ij oknh la[;k &2 dk izHkkoh fu;a=.k gS vkSj bl laca/k esa i=koyh ij lk{; miyC/k gS A vxj dksbZ O;f tcjnLrh fcuk fof/kd izf;k dks viuk;s fdlh fu;qf O;f dks gVkdj Lo;a egUFk cu tkrk gS rks bl vk/kkj ij mldk izHkkoh fu;a=.k ekuk tkuk lgh ugha gS A egUFk rks laLFkk dk ,d eqf[k;k gksrk gS og Lo;a eB dks izR;sd laifRr ij dkfct ugha gksrk tks fo|ky;
dh fu;ekoyh izLrqr dh x;h gS mlds vuqlkj fu;q egUFk gh mu fo|ky;ksa dh izcU/kdkdfj.kh dk insu v/;{k gksrk gS A ,slh voLFkk esa vihykFkhZ gh tks fd eB ds ijEijkuqlkj fu;q egUFk gS mu izcU/k lfefr;ksa dk insu v/;{k gksxk A dksbZ lqfo/kk dk lUrqyu oknh @izR;FkhZ ds i{k esa ugha ekuk tk ldrk vkSj u mudks dksbZ viw.kZuh; {kfr gksus dh laHkkouk jgrh gS A fo}ku v/khuLFk U;k;ky; us tks fu"d"kZ fudkyk gS og lgh ugha gS A vr% ;g vihy Lohdkj fd;s tkus ;ksX;
gS A**
7. A perusal of the findings aforestated and conclusions arrived at by the appellate court makes it abundantly clear that the appellate court seems to have reviewed the exercise of Judicial discretion in the matter of grant of temporary injunction de novo without corning to grips with the findings and conclusions arrived at by the trial court on questions germane to grant of temporary injunctions.
8. The appellate order being an order of reversal, the appellate court ought to have discussed and met the reasons given by the trial court in granting temporary injunction and appellate order having been passed sans regard being had to the principles governing exercise of appellate power in re an appeal arising out of interlocutory and discretionary order, falls short of acceptability and it would be apposite to allow the writ petition on this count alone unless the Court declines to interfere with the impugned order on any other ground.
9. The thrust of the submission made by Sri R. N. Singh, in the above perspective, was that in the absence of a specifically pleaded usage/custom, the petitioner No. 2 had no right to expel the third respondent from the office of Mahant and the document rescinding the appointment of the third respondent to the office of Mahant being illegal and void, the plaintiff-petitioner, urged the counsel, could not be said to have made out a prima facie case for grant of temporary injunction and the appellate court, proceeded the submission, was justified in setting aside the order passed by the trial court inasmuch as the suit was liable to fail, submitted Sri R. N. Singh, even if the plaint case be accepted in its entirety. I am afraid, the submission made by the learned counsel does not commend itself for acceptance. The principle that a Mahant can be removed for "good cause" is fairly well-settled. Article 7.9.7 of the Hindu Law on Religious and Charitable Trust by B. K. Mukherjee (4th Edition) states the law as under:
"Not merely bodily disease and mental infirmity but acts of misappropriation and waste which are injurious to the interests of the institution or the leading of an immoral life or doing of an act which is contrary to the tenets of the religious sector is against the usages of the institution, would be grounds for removal...."
In Mahalinga Thambiram v. Arulnandi Thambiran, AIR 1974 SC 199, it was held as under:
"We have already said that the power of nomination must be exercised not corruptly or for ulterior reason but bona fide and in the interest of the Math and the Hindu community, it then stands to reason to hold that power to revoke the nomination must also be exercised bona fide and in the interest of the institution and the community, in other words, the power to revoke can be exercised not arbitrarily but only for good cause."
It thus crystallizes that removal of the Mahant of a Math for 'good cause' is permissible in law. However, the question of considerable nicety that this Court is called upon to determine is whether the petitioner Swami Balkrishna Yati, having laid down the office and consecrated the third respondent, Mahant of the Math could, for 'good cause', remove the latter from the office of Mahant. The appellate court has held, he could not. The reasoning given by the learned District Judge is that in the absence of any usage/custom to the contrary, the ex-Mahant could not have removed the incumbent even for 'good cause' inasmuch as, held the learned District Judge, in such eventuality removal could be ordered only through a Court of law in legal proceeding.
10. The reasoning is fallacious and the conclusions reached at is unsustainable, it is no doubt true that removal of a Mahant can "ordinarily" be directed by Court in appropriate legal proceeding but that is not the only way left to an institution to get rid of its head for 'good cause'. Article 7.98 of the Hindu Law on Religious and Charitable Trust by B. K. Mukherjee, which lays down the law as under is illustrative and not exhaustive of the modes of removal of a Mahant:
"Removal of a Mahant can ordinarily be directed by Court in an appropriate legal proceeding. But usages do exist where the right of appointment belongs to a particular religious brotherhood and the same brotherhood can exercise the right of dismissal also if the superior is found to be guilty of misconduct."
Just as a religious brotherhood having right of appointment according to usage prevailing in a particular Math can exercise the right of removal if the Mahant is found to be guilty of misconduct, a Mahant who has the right to appoint his successor during his life-time can exercise the right of dismissal for 'good cause' if such right has been reserved by the appointer at the time of appointment. The deed dated 21.3.96 may be just a memorandum of what happened on 23.2.96 when the third respondent is said to have been consecrated Mahant of the Math, as submitted by Sri R. N. Singh, it cannot be ignored as irrelevant for conditions and terms of appointment stipulated therein can be said to be in contemplation of the parties from the very inception.
11. The individual who exercised the right of appointment in the instant case, could in an appropriate case of misconduct, exercise the right of removal also. I am of the considered view that in case the incumbent is acquitting himself in a manner which runs counter to the tenements of a religious sector militates against the traditions of the institution, he can be removed and the power to do so may either vest in the appointer or it may vest in the entire body of religious brotherhood. The question as to whether removal could be effected under clause (4) of the deed dated 21.3.96 is, however, highly debatable and contentious and can more appropriately be vetted at the trial stage and not at this stage. The learned District Judge, in my opinion, was not justified in holding the view that the third respondent was not removable from the office of Mahant except through a decree of Court.
12. In the conspectus of the above discussion, the matter has to be remitted to the appellate court and, therefore. I do not feel called to dwell upon other questions raised at the bar and forbear from expressing any opinion on merits of the issues which are to be decided either at the trial of the suit after evidence or by the appellate court in the light of the observations embodied in this judgment.
13. In the result, the petition succeeds and is allowed. The impugned order dated 25.11.97 is quashed. The teamed District Judge, shall re-admit the Civil Misc. Appeal No. 22 of 1997 to its number and dispose it of afresh in accordance with law keeping in view the observations made in the judgment.