THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.21327 of 2011 Dated 03rd August, 2011 Between: Sri Pydimamba Ammavari Temple …Petitioner And Hon’ble Court of VI Additional Senior Civil Judge, Visakhapatnam and others …Respondents Counsel for the petitioner: Sri V.T.M.Prasad Counsel for respondent No.1: Smt.Kalpana Ekbote Counsel for respondent Nos.2 to 5: Sri Srinivasa Murthy Counsel for respondent No.6: Sri N.Ranga Reddy The Court made the following: ORDER: This writ petition is filed for a prohibition against respondent No.1 from proceeding with and adjudicating O.S.No.189 of 2011 filed by respondent Nos.2 and 3. The facts, which are not in dispute, are that respondent Nos.2 and 3 have constructed a building consisting of ground + four floors over land admeasuring Ac.0.16 cents in Survey No.4/5 of Butchirajupalem, Greater Visakhapatnam Municipal Corporation, Visakhapatnam. While it is the case of the petitioner that the land over which such building was constructed belongs to it being a registered endowment property, respondent Nos.2 and 3 asserted their right and title over the same. The said respondents filed O.S.No.189 of 2011 in the Court of the learned VI Additional Senior Civil Judge, Visakhapatnam, respondent No.1 herein, seeking permanent injunction restraining the petitioner and the persons claiming through it from interfering with the peaceful possession and enjoyment of the said property. Respondent No.1 has initially granted an order of status quo on 22.02.2011 in I.A.No.156 of 2011 in the said suit. Subsequently, the said suit is stated to have been decreed after setting the petitioner ex parte. Thereafter, the petitioner is stated to have filed an application for setting aside the ex parte decree and the said application appears to be pending. At that stage, the petitioner filed the present writ petition for prohibition. The private respondents filed counter affidavit, wherein the above facts are placed on record. Sri V.T.M.Prasad, learned Standing Counsel for the petitioner, submitted that the property register maintained under Section 43 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short ‘the Act’) has included the above- mentioned property as belonging to the petitioner and that therefore, a legal presumption requires to be drawn that the property belongs to the endowment under Section 46(3) of the Act. The learned Standing Counsel further submitted that under Section 151 of the Act, there is a bar of jurisdiction on any Court of law to entertain a suit or other legal proceedings in respect of administration or management of an institution or endowment or any other matters of dispute for determination or decision, except under and in accordance with the provisions of the Act. On the basis of the above, the learned Standing Counsel submitted that respondent No.1 cannot be permitted to proceed with the suit and that the private respondents can only approach the Endowments Tribunal constituted under Section 162 of the Act for deciding the disputes pertaining to the property in question. Sri Srinivasa Murthy, learned counsel for respondent Nos.2 to 5, and Smt.Kalpana Ekbote, learned counsel representing respondent No.1, submitted that the suit was already disposed of by respondent No.1 by passing an ex parte decree and that what is pending before respondent No.1 is only an application filed by the petitioner for setting aside such ex parte decree. They have further submitted that since there is a serious dispute as to the title over the property and in the absence of any declaration that the property in question belongs to the petitioner, the bar of jurisdiction contained under Section 151 of the Act does not apply to the instant case and hence, no writ of prohibition can be issued. I have carefully considered the respective submissions of the learned counsel for the parties. As regards the first objection of the learned counsel for the respondents, I find merit therein. As on today, the suit filed by respondent Nos.2 and 3 is not pending before respondent No.1. It is only the application of the petitioner for setting aside the ex parte decree that is pending before respondent No.1. Therefore, a writ of prohibition cannot be issued in respect of a non-existent suit. Indeed, by filing the application for restoration, the petitioner has invoked the indulgence of respondent No.1 to restore the suit for being disposed of on merits. Having filed such an application, it is not permissible for the petitioner to turn round and file the present writ petition for a prohibition. Such a conduct constitutes approbation and reprobation. With respect to the contention of the learned counsel for the petitioner that respondent No.1 is barred from entertaining the suit under Section 151 of the Act, I do not find any merit therein, because the bar contained in the said provision relates to administration or management of an institution or endowment or any other matters of dispute for determination or decision. This is not a case pertaining to management or administration of an institution or endowment. The expression “any other matters of dispute” presupposes that the dispute pertains to the properties or any other matter pertaining to religious or charitable institutions or endowments. Admittedly, so far no determination or decision has been made to the effect that the property in question, which is the subject mater of the civil suit, belongs to the endowments department. Even though the petitioner seeks to place reliance on the register maintained under Section 43 of the Act and the presumption postulated under Section 46(3) of the Act, it is for the competent forum to consider the same and decide as to whether the property belongs to the petitioner or not in the event of restoration of the suit. In such event, the petitioner can file an appropriate application before respondent No.1 seeking adjudication of this issue as a preliminary issue. Subject to the above observations, the writ petition is dismissed. As a sequel to dismissal of the writ petition, W.P.M.P.Nos.25959 and 25960 of 2011 shall stand disposed of as infructuous. C.V.NAGARJUNA REDDY, J 03rd August, 2011 VGB