Raghavendra Swamy Mutt and Others vs Uttaradi Mutt and Others

R.S. Chauhan, J.—The petitioners are aggrieved by the order dated 10/12/2015 passed by the Additional Civil Judge and J.M.F.C. Gangavathi, whereby the learned Civil Judge has allowed the application filed by the respondents under Section 151 of CPC and has directed the Dy. S.P. of Gangavathi to give police protection to the respondents-decree holders for the peaceful possession and enjoyment of the suit schedule property, and for preventing the judgment-debtors from trespassing into the suit property violating the decree in RA No. 123/2014 passed by the Principal Senior Civil Court, Dharwad.

The bone of contentions between the petitioners-judgment-debtors and the respondents decree-holders happened to be Aradhanas of Sri Sri Padmanabha Teertharu, Sri. Kavindra Teertharu and Sri. Wageesh Teertharu, in general, and, at present, the Aradhana of Sri. Sri. Padmanabha Teertharu, in particular for which was schedule to be hold on 9th, 10th and 11th day of December 2015. Both the petitioners as well as the respondents decree-holders have been embroiled in different litigation over the suit property situated at Nava Vrindavana Gaddi in the Island called Anegundi.

The respondents had filed a civil suit, namely OS No. 121/1992 before the Civil Judge, Gangavathi, for permanent injunction against the petitioners. However, after completing the trial, the suit was dismissed. Therefore, the respondents filed an appeal before the learned Civil Judge (Sr.Dn.) in RA No. 123/2014. The learned Civil Judge (Sr.Dn) passed the following decree:--

"The suit of the plaintiff is decreed in part. Subject to the right, if any, of the Defendant Mutt to perform Aradhanas and Poojas of the Vrindavanas in the suit property, the defendant is restrained by way of perpetual injunction from interfering with the plaintiff Mutt''s possession and enjoyment of the suit property. It is hereby clarified that the above said raider shall not be construed as declaring the right of the defendant Mutt to perform Aradhanas and Poojas"

Subsequently, the respondents have also field the execution proceedings in E.P. No. 122/2015. During the proceedings before the Execution Court, as the date for the Aradhanas of the above mentioned holy persons was drawing near, the respondents filed an application seeking police protection for the Aaradhana scheduled on 9th, 10th and 11th December 2015. By the impugned order, the learned Additional Civil Judge has allowed the said application in the above mentioned terms. Hence, this petition before this Court.

Mr. F.V. Patil, the learned counsel for the petitioners, has pleaded that the impugned order has been passed without giving an opportunity of hearing to the petitioners. Although the notice was issued by learned Civil Judge, but it could not be served on any other judgment-debtor, except judgment-debtor No. 3. Despite the fact that the learned Civil Judge has noticed the fact that the service of notice on judgment-debtor Nos. 1, 2, 4 and 5 is pending, still the impugned order has been passed by him. Thus, the right to opportunity of hearing has been violated by the learned Civil Judge. Secondly, although the respondents had prayed for police protection only for 9th, 10th and 11th December 2015, the learned Civil Judge has prevented the entry of the petitioners into the suit property for indefinite period. Thus, the learned Civil Judge has traveled beyond the relief prayed for by the respondents.

On the other hand Mr. Harsh Desai, the learned counsel for the respondents, submits that considering the urgency of the matter that there was paucity of time before the Aradhanas and poojas were to begin, an order had to be passed by the learned Civil Judge. Thus, the learned Civil Judge was justified in passing the order despite the absence of the judgment-debtor Nos. 1, 2, 4 and 5. According to the counsel, the dates of 9th to 11th December 2015 were crucial as the Aradhanas for certain holy persons have to be performed by the Matt on these particular period/dates. The said Aaradhana would be attended by the large number of the public. Hence, it was imperative that the peace, discipline and decorum of the holy shrine should be maintained.

Secondly, if the petitioners are of the opinion that they should be heard and the impugned order needs to be modified, they have the legal remedy of applying for modification of the order, instead of rushing to this Court and of shall challenging the legality of the order.

Heard the learned counsel for the parties and perused the impugned order.

A bare perusal of the said impugned order clearly reveals that the learned Civil Judge has noticed the fact that the Special Bailiff had served the notice only on judgment-debtor No. 3 and the other notices were returned with the endorsement that the ''parties out of station''.

The learned Civil Judge has further noticed the fact that the judgment-debtor No. 3 had prayed for time for filing his objection. Therefore, the case was directed to be listed on 9/12/2015. However, on 9/12/2015 while the judgment-debtor No. 3 was present, his counsel was absent. Considering the fact that the Aradhans were scheduled to commence on 9th of December 2015 itself, considering the urgency of the matter, the learned Civil Judge was certainly justified in hearing the case even if in the absence of judgment-debtor No. 1- petitioner No. 1 before this Court.

Therefore, if the impugned order has been passed, it has been passed under the extra-ordinary circumstances of the case that the Aradahanas were about to commence on 9th and were going to continue till the 11th December 2015. These Aradhanas would naturally attract a large number of people to the holy shrine. Therefore, it was imperative for the learned Civil Judge to pass the order then and there.

The only two issues which are before this Court are whether an opportunity of hearing should be given to the judgment-debtors post-decisionaly, and whether the impugned order passed by the learned Civil Judge needs any modification or not?

Although the impugned order has been passed without hearing the petitioners, since the order does effect the interest of the petitioners, obviously under the principles of natural justice, an opportunity should be given to them by the learned Civil Judge.

The issue whether the order needs to be modified should not be commented upon by this Court, at this juncture. For any observation made by this Court may adversely effect the decision of the learned Civil Judge. Therefore, this Court defer refrains from passing any opinion on the said issue.

Instead, this Court directs both the parties to appear before the learned Civil Judge on 17/12/2015. The petitioners are granted the liberty to move an application for modification of the order dated 10/12/2015. The learned Civil Judge is directed to consider the said application after giving a thorough opportunity of hearing to both the parties and to decide whether the order dated 10/12/2015 needs to be modified or not? The said decision will be taken strictly in accordance with law. With these directions, this petition is disposed of.

However, it is hereby clarified that till the leaned Civil Judge passes his order on the application for modification of the order dated 10/12/2015, the order dated 10/12/2015 shall continue.