0 ^' r- ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR: C.G. W.P.NO.^^^ OF 2005 WRIT PETITION UNDER ARTICLE 227, OF CONSTITUTION OF INDIA Petitioners: Defendants .,v$^> ^i^y r^y' .. ^^"" ^^y i^y &*•' Respondents: Plaintiffs 1) Krishna Kumar Dubey,S/o Late Shri Loknath Dubey,aged 53 years, » 2) KaiUsh Chandra Dubey S/o Late Shri Ratanlal Dubey,aged 43 years, 3) Mahesh Dubey, S/o Late Shri Balbhadra Dubey, aged 55 years, fit) Shivkumar Dubey S/o Late Shri Babulal Dubey, aged 47 years, s) Narayan Prasad Dubey S/o Late Shri Gorelal Dubey, aged 36 years, it) Manoj Kumar Dubey S/o Late Shri Kanshi Prasad Dubey, aged 30 years, ~l) Smt.Vimla Dubey Wd/o Late Shri Kanshi Prasad Dubey,aged 50 years, All Brahmans by caste R/o Mohalla Mahamayapara Ratanpur,Tah.Kota, District Bilaspur (C.G.) Vs Smt. Laxmi Bai aged 70 years,Wd./o Late Shri Babuji Dubey Caste Hindu Brahman , Manager & Pujari Buddheshwar Mahadeo (Buhdha Mahadeo) Mandir Ratanpur, R/o Mohalla Mahamai Para Ratanpur, Tahsil Kota, District Bilaspur (C.G.) Through - Exclusive Power of Attomey Holder Govind Prasad Tiwari, aged 45 years S/o Shri Rewa Prasad Tiwari, R7o Mohalla Mahamayapara Ratanpur, Tahsil Kota, District Bilaspur (C.G.) ^'..' }""' /'"^^- ^Ff^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 2939 of 2005 Krishna Kuiaar Dubey -Versus- Smt. Laxmi Bai ^^,i Post for ordpr on Novciabcr; 3005. s"Bt.^'l'»" lge •:i;i^ [i@^^l P8 ?BIP HIGH COURT OP CHHATTISGARH AT BILASPUR Writ Petition No. 2939 of 2005 Krishna Kumar Dubey -Versus- Smt. Laxmi Bai Mr. Sanjay S. Agarwal, Advocate for the petitioners. Mr. Anand Kuinar Tiwari, Advocate for the Respondent. -~^^ ORDER ( 143fc<:w*B'< 2005) BYJustice Satish K. Agiuhotd. 1. The present petition under Article 227 of the Constitution of India is filed by fhe defendaD.ts/petitioners impugning the order dated 29.6.2005 passed by the Third Additional Distnct Judge, Bilaspur in Misc. Civil Appeal No. 27/2005. 2. The undisputed facts ia nutsheU are that the plaintiff/respondent filed a civil suit for permanent uijunction agamst defendants/petitioners &OTS. iiiterferuig wititi perfonaance of Pooja - Archiia of Budheshwer Mahadeo (Budha Mahadeo) teinple, situated at Ratanpur, Tahsil- Kota, District- Bilaspur. 3, The plaintiff/respondent furfher ffled an application under Order 39 Rule 1 and 2 read with Section 151 ofthe Code ofCivil Procedure for graut of teraporaiy injunction against the defendaats/petitioners. The Third Civil-rtJudge Class-II, Bilaspur after having considered the subinissions inade by the parties and docuinents filed by both the pardes came to fhe conclusion fhat fhe document dated 16.3.1946 executed by Shri Babuji Dubey, husband offhe plaiatifF/respondent, \ agreeinent for Paach FaisMa dated 22.2.1991 and Paach Faishla BT' g^S;:-!y:-i-«fgi8^BgS?SB®'Si?51t?! "!" dated 13.3.1991, and the certi&cate issued by fhe Nagar Panchayat, Ratenpur pnma-facie estabUshed fhat Shri Babuji Dubey, husbaad of the plaintiff/respondent had been performing worship (pooja-archana) ak?ng wifh defendants/petitioners in the disputed temple i.e. temple of Budheshtper Mahadeo (Budha Mahadeo). The tiniing of worship was decided as per Panch Faishla dated 13.3.1991. The Third CivU Judge Class-II, BUaspur according^? held that the plamtiff/rcspondent and fhe defendants/petitioners were joinfly eatitled to perfonn pooja - aychna on the said teiaple. Thus, fhe appUcation ofthe plaintifiF/respondent under Order 39 Rules l and 2 of fhe C.P.C. for grant of teinporary injunction that the plauitifF/respondent alone was entitled to perform pooja-archna in fhe teiaple was rejected by thc order dated 11.5.2005. Beiug aggrieved fhc plaintiff/respondent filed a Miscellaneous CivU Appeal being M.C.A. No. 27/95 in the Coiirt of Third Additional Distnct Judge Bilaspur zuider Order 43 Rule 1 of the Code of Civil Procedure. The Additional District Judge wifhout considering fhe documents dated 16.3.1946 executed by Shri Babuji Dubey, husbaad of the plauitifiF/respondent, agreement for Panch FaisUa, Paach Faishla aad other docuinents (supra) relied on by the Court below aad without discussing fhe niaterial on record, recorded a contraiy finding and set aside fhe order dated 11,5.2005 passed by the Third CivU Judge Class-II. The Additional Distorict Judge held that fhe plaintiff/respondent had proved her case pniaa-facie and farther keeping ar view thc balance of convenience in her favour and irreparable loss wtuch nught be caused to the plaintifF, attowed fhe Misc. Civil Appeal No. 27/95, filed by the plauitiff/respondent by impugned order dated 29.6.2005. As a result, the appUcation under •77 3°3>- ^^ J "^^s^ 7. Order 39 Ruk 1 and 2 of the Code of Civfl Procedure for temporaiy iajunction ffled by the plaintiffwas aUowed. Mr. Sanjay S. Agarwal, learaed counsel appeariug for the defendants/petitioners submittcd fhat the First AppeUate Coiu-t, while passiag the impugned orier, had not considered aad discussed the relevant documents nainely ttie document dated 16.3.1946 executed by Shri Babuji Dubey, husbaad of the • plamtiff/respondent, agreement for Panch Faishla dated 22.2.1991, Panch Paishla dated 13.3.1991, and the certi&cate issued by the Nagar Paachayat, ^ Rataripur, which were considered by fhe Third CivU Judge Class-II. The trial Court came to the conclusion that fhe plauitifiyrespondent had not made out a priina facie case that she alone was entifled to perfonn pooja-arehna in fhe teiuple and to look after inanageinent of the teinple. It was further contended that the first appeUate Court had set aside the fiading rccorded aad fhe order dated 11.5.2005 passed by fhe trial court without lookiag into the relevant material, balance of convenience and UTeparable loss caused to the defendants/ petitionera. Leamed counsel for fhe petitioners relied on decisions of the Supreiue Coiirt ia Sree Jain Swetambar Terapaafhi Vid(S) V. Phndan Singh aud others, [AIR 1999 S.C. 2322] and DevalDead) fhrough Lrs Vs. Sajjau Kumar fDead) by Lrs. [ (2003) 7 SCC 481]. Per contea, Shri Auand Kumar Tiwari, leamed counsel appearing for the plauitLff/respondent subiaitted that tfae 6rst appeUate Court, though whfle recprdmg its fiading had not referred to the above stated vaiibus docuinents, howevcr, the firat appeUate Court had considered aB the documents as stated above while coniing to the conclusioa that the plaintiff/respondent alone was entifted to perform pooja in fhe teinple aad to look after vaanageiD.eTit of the teinple. The appellate Y -i 1 1!s,; i;-iteS ^•^;-:^-::..^^ Court had righfly set-aside the finding recorded by fhe trial Court aad aUowed the appeal. 8. Learaed counsel further contended that the scope of this Court in exercise of its power ofjudicial supemsion under Article 227 of the Constitution of India is limited. The High Court shQiild not go into the factual appreciation of evidence and if two plausible views are possible, the High Court should restrsdn. itselfto give its decision ia favour ofone view. In support ofhis contention, leamed counsel reUed on the decision ofthe Madhya Pradesh Hiah Court in State of M.P. and another Vs. Uttam Chaad and others [2000 (2) JLJ 143], decisions of the Supreme Court in Chandavarlcar Sita Ratna Rao Vs. Ashalata S. Guram, [A.I.R. 1987 S.C. 117], Mrs. Raaa Drego Vs. Lalchand Soni etc. (A.I.R. 1998 S.C. 1990], Surva Dev Rai Vs. RamChander Rai & others, [A.I.R. 2003 S.C. 3044]. 9. I have heard leanned counsel for fhe parties aud perused fhe material records. It is weU nigh setfled, in view of fhe various decisions cited above, that fhe H^h Court whfle exercising its supervisoiy jurisdiction under Article 227 of the Constitution of India has lunited jurisdiction that ualess there is aay grave nuscamage ofjustice or flagrant violation of law or the Court has mis-directed its order on law and fact, fhe High Court should restrain itself fi-om interfering with such finding made by the courts below. In Waryaa Singh and another Vs. Amamath and another [A.I.R. 1954 S.C. 215] the Supreme Court held that the power of superintendence conferred by Article 227 of the Coastitution of-^lndia. be exercised most sparingfy and only ia appropriate cases ia order to keep the subordinates courts wifhiti fhe bounds oftheir aufhority and not for correcting mere errors. ; 10. In case of Sree Jain Swetambar Terapaufhi Vid (S) (supra), cited by 1 leamed coiinsel fbr fhe petitfoner in para-12 has Iicld as iinder:- r' TS •cssss'siS^s»/ "It may be pointed out that it is one thing to conclude that the trial Court has not recorded its pjrima facie satisfaction on merits but granted the temporaiy injunction and it is anottier thing to hold that trial Court has gone wrong ia recording fhe priina facie satisfaction and setting aside that fiudic^ on the basis of the material on record because it has not considercd the relevaat inaterial or because it has erroneousfy reached the finding or conclusions on fhe facts estabUshed. In the first situation, the appellate Court wffl be justifcd in upsetting the order under appeal even without going iuto tfae merits of the case but ia the second eventuality, it caanot set aside fhe impugned order wifhoiit discussiag the inaterial on record and recoiduig a contrary finding. The H^h Court proceeded to set aside the order of the trial Coumt on fhe first ground ignoring the aforeiaentioned fiiidings offhe trial Court, fhe order under appeal is, fherefore, unsustauiable." 11. In Surya Dev Rai's case (supra), cited by- learaed couasel for the respondeats, the Supreiue Court reiterated the legal position oflaw as settled eariier by fhe Supreine Court in catena of decisious fhat fhe High Court in supervisory jurisdiction would not convert iiseW into a court of appeal aad indu^e in the re-appreciation of evidence or evaluation of errors or correct errors in draroing infereace or correct i inere techiiical or fonnal errors. 12. In the present case, the appeUate Court has neither considered nor discussed aU the documents which were produced while coming to fhe conclusion thayhe plainttff/respondent alone was entitled to perform \ pooja-archiia in fhe temple aad to look afiter the maaageinent of the \ temple. The trial Court had considercd in detaU and came to the \ prima facie satisfaction, keeping ia view, fhe balance of convenience \ and irrcparable loss likely to be caused to either ofthe partfes that the SsstVSffWW 13. plaintiff/respondent as weU as the defendants/petitioneis are jointly responsible for performance of pooja-arehna as it has been decided long back iu Paach Faishla dated 13.3.1991. Hence, the view takea by fhe appeUate Court is not based on fhe appreciation of evidence aad conteaiy to niaterials on record. Accordingly, the unpugned order dated 29.6.2005 passed by the Third Additional District Judge, Bitaspur in Misc. CivU Appeal No. 27/2005 is set aside and the order dated 11.5,2005 passed by the Third Civil Judge Class-II in Civil Suit No. 74-A/2005 is restorcd. The petitk)n is allowed. No order as to costs. n.iikur Sd/- Satish K. Agnihotri Judge