(Maharaja) Bahadur Singh and others vs Seth Hukum Chand and others

Dawson-Miller, C.J.—The suit out of which this appeal arises was instituted in 1920 by the plaintiffs representing the Digambari sect of Jains against the defendants who are representatives of the Sitambaris claiming a declaration of the plaintiffs'' rights in connection with their worship at the tonks and temples on Parasnath Hill and a permanent injunction restraining the defendants from committing certain acts alleged to be an infringement of the plaintiffs'' rights.

After filing the plaint the plaintiffs applied for and obtained a rule calling upon the defendants to show cause why a temporary injunction restraining them from committing certain of the acts complained of in the plaint should not be granted pending the hearing of the suit. An interim injunction pending the hearing of the rule having been granted, the defendants appeared before the learned Additional Subordinate Judge of Hazaribagh to show cause and, after hearing the parties, the rule was made absolute pending the hearing of the suit which has not yet taken place. From that decision the defendants have preferred this appeal.

We are told that the suit is practically ready for hearing and has only been held up as the record was sent here from the Subordinate Court for the purposes of this appeal and that we ought not in the circumstances to interfere with the temporary injunction which was granted in May last year, and that no useful purpose would be served by vacating the order already made and deciding, without full material, questions which will be the subject of determination in the suit. I am not satisfied that this reason in itself is sufficient for dismissing the appeal although on the score of convenience it may have some weight. It is necessary, therefore, to consider the grounds upon which the learned Judge below has based his decision.

I need not repeat here what has been said in the judgment under appeal as to the differences which divide the two sects of the Jain community and the protracted litigation which for some years now has been tending to widen the breach between them. It is sufficient to bear in mind that the ritual attending the worship of the two sects has marked differences which in recent years have formed the subject of heated disputes and much litigation. The fact that they both have rights of worship in the same shrines on Parasnath hill is no doubt a source of continual friction as each Sect regards the mode of worship of the other as unorthodox. Sometime before the present suit was instituted the Sitambaris, who are represented by the defendants in the present suit, sued the present plaintiffs and others representing the Digambaris for a declaration that the Digambaris were not entitled to worship in the shrines and temples on Parasnath Hill except with their permission and in the manner prescribed by them. That suit was decided on appeal in this Court in April last year after the present suit had been instituted and by that decision it was declared that both sects had equal rights of worship in the majority of the tonks on Parasnath Hill. Up to that time however, there can be no doubt that the Sitambaris had been claiming exclusive rights over the hill and the tonks and temples thereon and the right to control the mode of worship of the other sect. The proprietary rights in the hill itself are now vested in the Sitambaris by a recent purchase and they have for many years in fact exercised acts of management and superintendence over the existing shrines and temples repairing or rebuilding the same when necessary. The Charans which are representations in stone or marble of the footprints of the Trithankars who have attained Nirvan on the hill in past and present cycles are enshrined in the tonks and are devoutly worshipped and regarded as objects of peculiar sanctity by both sects. The ritual attending the worship, however, is marked by broad differences as already mentioned. Both sect3 also regard the hill itself as an object of veneration and are very tenacious of the rights which they claim to have acquired therein and resent the intrusion of those of a different faith or the performance of any act on the hill itself which may offend their religious scruples. The Digambaris, it is said, regard eating and drinking on the hill or the performance of any of the usual functions of nature as a desecration of that holy place.

The acts complained of in respect of which the injunction has been granted are divided into 4 heads:-

(1) The construction of houses for residential purposes on the top of the hill tending to the desecration of the sanctity of the hill.

(2) The collection of building materials on the top of the hill for the purposes of constructing a gate or closed archway tending to prevent free access by the Digambaris to the summit of the hill and the tonks thereon.

(3) Interference with the worship of Digambari pilgrims in their own prescribed way in company with their Pujaris and guards.

(4) The removal of existing Charans and the substitution of new Charans offensive to the religious sentiments of the plaintiffs'' community.

It was contended on behalf of the appellants in the first instance that as they reside in the presidencies of Calcutta and Bombay, outside the jurisdiction of this province, the Court has no jurisdiction to grant an injunction against them. This argument is based upon the assumption that the Court would be unable to enforce its order against persons not subject to its jurisdiction. No doubt the Courts of this country would not grant an injunction against persons residing outside its jurisdiction and not subject to the jurisdiction of the Court in cases where they would have no means of enforcing the order. In the present case, however, the acts complained of are acts taking place within the jurisdiction, and the appellants, although they reside outside the jurisdiction, have appeared in the suit and submitted personally to the jurisdiction of the Court. Nor was this done under protest or merely as a means of questioning the jurisdiction of the Court. No point is taken in the written statement that the Court has no jurisdiction over the defendants. In fact it would appear that both parties are anxious to obtain a judicial decision from the Courts of this province upon the matters in issue between them. Had they merely appeared for the purpose of questioning jurisdiction, other considerations would arise. The late Professor Dicey, an authority of undoubted weight on this subject, in his Conflict of Laws (second edition, at p. 44 states the rule thus:-

The sovereign of a country, acting through the Courts thereof, has a right to exercise jurisdiction over any person who voluntarily submits to his jurisdiction, or, in other words, the Courts of a country are Courts of competent jurisdiction over any person who voluntarily submits to their jurisdiction.

And again at p. 48 he says:

The Courts of common law and of equity have further always exercised jurisdiction over a defendant who appeared to, or a plaintiff who brought, an action or suit. This again is in strict conformity with the principle or test of submission.

Indeed in such a case the Courts in England would restrain a foreigner who had appeared and submitted to the jurisdiction from committing certain acts outside the jurisdiction. The late Lord Halsbury in Vol. 17, p. 263 of the Laws of England expresses the rule thus:-

A foreigner who has appeared to an action in an English Court gives jurisdiction to the English Court to restrain him from proceeding to litigate the same subject matter in the Courts of his own country.

In the case of Kumar Ganga Singh v. Prithichund Lal 1922 P. 34: 1 Pat. 356: 4 P.L.T. 10 this Court has followed the principle of the rules above stated and held that a Court has jurisdiction on the application of the plaintiff in a suit in which the defendants have entered appearance to issue a temporary injunction restraining the defendant from executing in another Court a decree obtained against the plaintiff. The point which was not raised by the defendants in their written statement nor taken in argument before the lower Court was put forward here for the first time. The defendants are before the Court, having submitted to the jurisdiction, and the acts complained of are acts committed or to be committed within the jurisdiction, and I have no doubt whatever that the Court has jurisdiction to make the order.

With regard to the merits of the case one must be satisfied in the first instance before granting a temporary injunction, as pointed out by the learned Subordinate Judge, that the plaintiff has a fair question to raise as to the existence of the right alleged. I may add that the Court must also be satisfied that the defendants have infringed or are threatening an infringement of those rights. I have considered each of the four grounds in respect of which the plaintiffs claim the injunction and, in my opinion, the first ground stands upon an entirely different footing from the other three. The defendants are the proprietors of Parasnath Hill and are, therefore, entitled to erect buildings thereon as and where they please so long as they do not interfere with the rights of other parties. It has been declared by the decision of this Court that the plaintiffs as well as the defendants have rights of worship in the majority of the shrines on that bill and any act calculated to interfere with or restrict in any way the plaintiffs'' right of worship would give rise to a cause of action. The mere fact, however, that the contemplated act of the proprietor would shock the religious sentiments of the plaintiffs is not in itself a matter which would give rise to a cause of action. No person is entitled, to whatever religion he may belong, to enforce his religious views upon another or to restrain that other from committing any lawful act or making any lawful use of his property merely because it would not fit in with the tenets of big particular religion, and it is not suggested in the present case that the building of residential houses upon the hill would interfere in any way with the unrestricted right of worship in the tonks and temples by the plaintiffs. Nor can the act of building itself be regarded as a nuisance which might give rise to a cause of action. There are already on the hill buildings of various sorts. There are rest houses for the pilgrims, and a Dak Bungalow and servants'' quarters near the principal temple on the hill and the defendants contend that the buildings it is proposed to put up are necessary for the purposes connected with the religious institutions over which they have the management. The plaintiffs, however, rely upon the judgment of the Calcutta High Court in what is known as "The piggery case" in which an injunction was granted at the instance of representative members of the Jain community against Mr. Boddam, the lessee of the Raja of Palganj, then the proprietor of the hill, restraining him from slaughtering pigs and carrying on the manufacture of lard on a certain part of the hill. The decision in that case, however, was based upon an ekrarnama of 1872 granted to certain persons representing the whole Jain community giving them certain rights over the hill and the lease by the Raja of Palganj to Mr. Boddam was found to be a contravention of certain restrictive covenants in favour of the Jains contained in the ekrarnama. It is true that since that date the restrictive covenants in the ekramama have been declared inoperative by the Privy Council but the decision relied upon gains no more binding force by that fact. It could not, in my opinion, be supported upon any other ground.

The case of Behari Lal v. Ghisa Lal (1902) 24 All. 499: (1902) A.W.N. 169 appears to me to have been properly decided and is an authority directly in point. The plaintiffs in that case were the owners of a house adjacent to the site of a temple. Within the temple enclosure was a pipal tree which had grown there for many years. Some of the branches of the tree extended over the plaintiff''s premises and over his house. He thereupon proceeded to cut down the offending branches which he had a perfect right to do as the owner of the property. The defendants, the proprietors, of the temple endeavoured forcibly to prevent him from doing so. The plaintiff then sued for an injunction against the defendants to restrain them from obstructing his right to out the branches which spread over his house. It was contended that the pipal tree was an object of veneration to pious Hindus and that the cutting of the branches was regarded by them as an act of sacrilege and highly offensive to their religious sentiments. It was held that the plaintiff was entitled to the injunction prayed for and that the fact that his action might cause annoyance to and offend the religious sentiments of a large number of Hindus was no sufficient ground for cutting down the well recognised common law rights of an owner of property. The proposition put forward by the defendants in that case was stated by the learned Judge to be unsupported by authority and inconsistent with common sense. "With every desire to avoid offending the religious scruples of any sect of the community, I am unable to hold that such a consideration should be allowed unduly to restrict the recognised rights of ownership in property. The plaintiff''s have no proprietary rights in the hill. The extent of their interest therein is the right to worship at the shrines with free access to the hill for that purpose. It is a right in aliena solo and as long as it is not interfered with the owner can do what he likes with his own. The fact that the plaintiffs'' veneration for the hill leads them to regard the erection of buildings thereon at an act of sacrilege cannot in itself confer the right to restrain the owner from exercising the ordinary acts of ownership. Every one is entitled to his own religious beliefs but he cannot force them upon another so as to restrain that other from dealing with his property in a manner incompatible with those beliefs. It has been pointed out that the plaintiffs claim the right by custom to worship every part of the hill. It may be so. But it is not clear how such a right, if it can be established, is interfered with. The particular objects of worship at present are in the tonks and temples and access to those is not barred by the proposed buildings. It is argued, however, that at some distant period in the future, footprints of the saints may be discovered on the very spot where it is now proposed to erect buildings. I think a claim based upon this somewhat insecure foundation may be left to be considered by the Courts if and when the event foreshadowed becomes an accomplished fact. In any case it should not be allowed to interfere with the present rights of the proprietors. In my opinion, the plaintiffs have failed to make out a case for a temporary injunction upon the first of the grounds alleged and the injunction under that head should be discharged.

The case presented under the other three grounds stands upon a different footing. The learned Judge has found that the erecting of a gateway or closed arch upon the pligrim road on the summit of the hill would have the effect of obstructing the free access of the Digambaris to certain of the tonks wherein their rights of worship have been declared. No satisfactory explanation has been given by the defendants why such an obstruction is needful and what its real object is and in the present tension of feeling between the two sects the temptation to use it for obstructing free access to the shrines would, I think, be almost irresistible. I see no reason to interfere with the learned Junge''s decision upon this part of the case.

With regard to the third ground, the injunction was granted without much opposition, the plaintiffs'' right to worship in their own way having been declared by the Court in the other suit before this application was presented. The defendants, however, had up to that time been strenuously contending that the plaintiffs'' rights of worship were permissive and could be performed only in a manner conformable to the ritual of the Sitambari sect. Under this head also, I think, that the learned Judge''s decision should be confirmed.

As to the fourth ground on which the rule was based, I think, the plaintiffs'' apprehensions are well-founded. The defendants in their written statement whilst asserting the right to replace the charans which had been broken or destroyed and denying the right of the Digambaris to any part in their re-establishment did not allege that they intended to replace them in the same form as before. On the contrary they alleged that they had every right to construct and establish any kind of charans permissible by the Jain Sitambari religion. Their attitude, it is true, has been somewhat modified since the plaintiffs'' rights were declared in this Court and they now say that they have no intention of replacing the old charans by those of a different form. However this may be, I agree with the learned Subordinate Judge in thinking that the injunction based upon this part of the case should continue until the hearing of the suit.

In my opinion, the injunction in so far as it restrains the defendants from constructing houses for residential purposes on the top of Parasnath Hill should be discharged. In other respects, I think that the appeal should be dismissed. The order of the learned Subordinate Judge will be varied accordingly. As the appellants have succeeded upon one substantial matter in the appeal but have failed in the others, I think, that the justice of the case would be met by ordering that each party bears his own costs of this appeal.

Ross, J.

I agree.