AO/421/2002 1/146 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 421 of 2002 with APPEAL FROM ORDER No.69 OF 2003 with CIVIL APPLICATION No.4429 OF 2004 in APPEAL FROM ORDER No.421 of 2002 with CIVIL APPLICATION No.4430 2004 in APPEAL FROM ORDER No.421 of 2002 with CIVIL APPLICATION No.611 OF 2003 in APPEAL FROM ORDER No.421 of 2002 with CIVIL APPLICATION No.2526 OF 2003 in APPEAL FROM ORDER No.421 of 2002 with CIVIL APPLICATION No.2527 OF 2003 in APPEAL FROM ORDER No.421 of 2002 with CIVIL APPLICATION No.9003 of 2005 in APPEAL FROM ORDER No.69 of 2003 with CIVIL APPLICATION No.8739 of 2005 in APPEAL FROM ORDER No.421 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= AO/421/2002 2/146 JUDGMENT 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AJENDRAPRASADJI NARENDRAPRASADJI PANDE AND ANOTHER Versus SWAMI KESHAVPRAKASHDASJI NARAYANPRAYDASJI AND OTHERS ========================================================= Appearance : APPEAL FROM ORDER No.421 of 2002 : FOR THE APPELLANTS MR S.B. VAKIL, SENIOR COUNSEL with MR.H.M. PARIKH, ADVOCATE with MR.Y.N. OZA, SENIOR ADVOCATE WITH MR.SHIVANG SHUKLA with MR.S.I. NANAVATI, SENIOR ADVOCATE with MR.A.S. VAKIL, ADVOCATE MR.HEMANG H. PARIKH, ADVOCATE MR.RASESH H. PARIKH, ADVOCATE MR.SHIVANG SHUKLA, ADVOCATE MR.P.J. VYAS, ADVOCATE MR.DIVYESH G. NIMAVAT, ADVOCATE FOR THE OPPONENTS MR.S.N. SHELAT, ADVOCATE COUNSEL AO/421/2002 3/146 JUDGMENT MR.P.M. RAVAL, SENIOR COUNSEL MR.PRASHANT DESAI, MR.MRUGEN PUROHIT APPEAL FROM ORDER No.69 of 2003 FOR THE APPELLANTS MR.P.M. THAKKAR, SENIOR COUNSEL MR.H.P. RAWAL FOR THE OPPONENTS MR.P.M. RAVAL, SENIOR COUNSEL with MR.MRUGEN PUROHIT for respondent no.3. MR.Y.N. OZA, SENIOR COUNSEL with MR.H.M.PARIKH with MR.H.H. PARIKH for respondents no.1 & 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 05/10/2005 COMMON ORAL JUDGMENT 1. This Appeal From Order is listed along with the above matters. 2. These matters were listed before this Court on 15.09.2005 and since then, the matters were heard AO/421/2002 4/146 JUDGMENT practically on day to day basis. The matters were last argued on 30.09.2005 by Mr.H.M. Parikh, who was replying to the arguments of the learned advocates appearing for the opponents. The learned advocate concluded his arguments with a request that in case of necessity he will submit rectification/s in 'the list of dates of various litigations' and 'the chart showing position of various litigations' submitted by the opponents. On 03.10.2005 learned advocate did not submit any rectification. On 04.10.2005 learned advocate submitted that as there are no material rectifications the list of dates of various litigations and chart showing position of various litigations along with extracts-Schedule 'A' to 'I' be taken as not controverted. 3. The present litigation has chequered history, which can be seen from the record of the case. The litigation was before the Hon'ble the Apex Court by way of, (i) Special Leave Petition ( C) No.15386 of 2004 which was registered as Civil Appeal No.3380 of 2005 filed against the order passed in Appeal From Order No.421 of 2002 by original defendant no.1. (ii) Special Leave Petition ( C) No.16128 of 2004 AO/421/2002 5/146 JUDGMENT which was registered as Civil Appeal No.3381 of 2005 filed against the order passed in Appeal From Order No.421 of 2002 by original defendant no.2 (iii) Special Leave Petition ( C) No.17836 of 2004 which was registered as Civil Appeal No.3382 of 2005 filed against the order passed in Appeal From Order No.421 of 2002. All these matters were disposed of by the Hon'ble the Apex Court by common judgment and order dated 13th May 2005. The Hon'ble the Apex Court without expressing any opinion on the merits and acceptability of various issues, remitted the matters to this Court for fresh consideration. The Hon'ble the Apex Court observed : “Since the controversy is continuing unabated it would be in the interest of the parties if the appeals and connected matters are disposed of by the end of September 2005. ... ... We make it clear that as noted above we have not expressed any opinion on the merits and we have interfered primarily on the ground that the impugned order of the High Court has been passed without taking note of the relevant aspects and, AO/421/2002 6/146 JUDGMENT therefore, deserves to be set aside for fresh consideration.” 4. The Hon'ble the Apex Court observed in para 8 as under : “It is to be noted that the legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above the basic controversy revolves round the question of the legality of the decision taken to remove Ajendraprasadji and the legality of the appointment of Rakeshprasadji.” The Hon'ble the Apex Court observed in para 10 as under: “Had both the appeals taken together the stand of the parties would have become clearer before the High Court. Additionally, the High Court does not appear to have dealt with the relevant aspects while affirming the order passed by the trial court.” 5. In view of the aforesaid observations of the Hon'ble the Apex Court all these matters are heard together and decided by this common judgement and order. AO/421/2002 7/146 JUDGMENT 6. To start with Appeal From Order No.421 of 2002 is filed by the original defendants in Special Civil Suit No.156 of 2002 filed in the Court of learned 3rd Joint Civil Judge (Senior Division), Nadiad, being aggrieved by the judgement and order dated 01.10.2002 disposing of exh.5 application. The order is to operate till final disposal of the suit. 7. Along with Appeal From order No.421 of 2002, a Civil Application No.7250 of 2002 for stay was filed. The same is disposed of by this Court by judgement and order dated 30.01.2003. This Court did not stay the order passed below Exh.5 dated 01.10.2002. The resultant effect is, the appellant (original defendant no.1) is restrained from appointing and/or nominating any person as Acharya of Vadtal diocese of Swaminarayan sect and also not permitting applicant no.1 to perform duties of Acharya as contemplated under the scheme of Vibhag Lekh. The order of this Court in Civil Application No.7250 of 2002 dated 30.01.2003 was challenged before the Hon'ble the Apex Court by filing Special Leave Petition ( C) No.3351 of 2002, which was disposed of at the hearing itself by order dated 07.07.2003, the relevant part reads as under: AO/421/2002 8/146 JUDGMENT “The restriction imposed in the first part of the order need necessarily to be understood in the light of the other directions further made by granting liberty to perform darshan like any other common man and they only cannot perform darshan or puja in the capacity of Acharya. Hence, having darshan or offering worship like any other devotee-common man has not been, in our view, restrained by the order under challenge. The restriction on the holding meeting also would be in respect of such meeting in the temple campus. The appeal before the High Court appears to have already been heard by a learned Single Judge for a considerable time and due to intervening summer vacation and change in the sitting roster thereafter it stands now listed before another learned Single Judge. Having regard to the important nature of the issues, the learned Chief Justice, Gujarat High Court, is requested to ensure the hearing and disposal of the appeal as expeditiously as possible either by the same learned Judge, who heard the matter earlier or AO/421/2002 9/146 JUDGMENT by another learned Single Judge before whom it now stands listed. The special leave petition shall now stand disposed of on the above terms. However, it is made clear that our order should not be taken to have expressed any opinion on the merits of the claims of either parties in any manner either way.” 8. The Hon'ble the Apex Court clarified its order by saying that it has not thought it fit to probe into the matter any further in light of the fact that the matter (Appeal From Order) is being heard in the High Court. In the result the order passed by the learned 3rd Joint Civil Judge, Nadiad below Exh.5 in Special Civil Suit No.156 of 2002 dated 01.10.2002 continue to operate. 9. Appeal From Order No.421 of 2002 along with other matters is argued at length. The main thrust of the arguments of the learned senior counsels for the appellants is that Special Civil Suit No.156 of 2002 before Nadiad Court, by the plaintiffs, is not maintainable on more than one ground. The same are AO/421/2002 10/146 JUDGMENT considered in this judgement hereafter. The learned counsel arguing for the appellants in Appeal From Order No.69 of 2003 vehemently contended that Special Civil Suit No.17 of 2003 filed in the Court of the learned Civil Judge (Senior Division) at Anand and the order passed therein on an injunction application on 16.02.2003 is an illustration of abuse of process of law. The suit was filed on 16.02.2003, it was Sunday. The interim injunction order was obtained at 8.30 PM that too without observing the mandatory provisions of law in this regard. 10. Taking an overall broad view of the controversy between the parties, Special Civil Suit No.156 of 2002 is filed by one Swami Keshavprasadji and two Hari Bhakts praying for a declaration that in view of Resolution No.4 dated 11.05.2002 passed at 'Salangpur' (a place geographically situated within the limits of district Ahmedabad, having a temple of Lord Hanuman, belonging to Vadtal Gadi of Swaminarayan sect), defendant no.1 does not remain “Acharya” of Vadtal Gadi and therefore, he himself or through defendant no.2 or his supporters is not entitled to enjoy any rights of any nature on the basis of the office of 'Acharya' in any 'Shikharband AO/421/2002 11/146 JUDGMENT Mandir' or 'Hari Mandir' and the registered properties and the trust premises of the temples of Vadtal, Gadhada, Junagadh Pradesh under Vadtal and it be declared that defendant no.1 posses no authority to appoint defendant no.2 as his successor on the 'Vadtal Gadi'. It is in this suit that the order under challenge dated 01.10.2002 is passed by the learned 3rd Joint Civil Judge (SD), Nadiad. 11. As against this, Special Civil Suit No.17 of 2003 is filed by one Harjabhai Nanjibhai Bhimani and another against newly appointed 'Acharya' and others-defendants praying that: “A declaration and permanent injunction be granted that the defendant no.1 is not the Acharya of the Swaminarayan Sampraday of the Southern Diocese and therefore, has no authority or right to carry out act of any nature whatsoever.” 11. Aforesaid two rival litigations which are not the only litigations as there are numerous other litigations AO/421/2002 12/146 JUDGMENT filed in various courts by various parties, which are alleged to be the supporters of each other, are for the present 'main proceedings', and the orders passed in the aforesaid two suits, Appeals From Order are before this Court, which are being heard and decided by this Court. 12. To find out the real cause, giving rise to the present litigations, one will have to go to the history, which is very succinctly put by the learned District Judge, R. Knight, in his judgement and order dated 23rd June 1905 in Original Civil Suit No.22 of 1902, which is as under: “In the early part of the nineteenth century a Hindu religious reformer entered Gujarat. The message that he came to deliver embodied no new crood. It strove indeed to rid the ancient faith of its idolatrous accretions and restore it to its primitive monotheism, but the reform at which it chiefly aimed was a reform not of belief but of morals. Himself of a life of religious austerity. Sejanand Swami fiercely denounced the license and immorality prevalent among the priesthood, and in the scheme of doctrine which he eventually promulgated, while AO/421/2002 13/146 JUDGMENT recognising to the full the impossibility of salvation without faith like the Christian St. James he more especially emphasised the no less essential condition of righteousness. Faith without works is dead, was the key note of his mission. Attracted by the magnetism of his personality, the purity of his life, and the inherent force of his teaching, a numerous following, augmented by his steadfastness under prosecution, gather about him; and though his early efforts, like those of a far greater predecessor were chiefly directed to the reclamation of the lowlier classes, he presently numbered many wealthy persons among his adherents. With their assistance and with that of regular system of contributions that he imposed upon his followers, he built two great temples for the perpetuation of his teaching and the organisation of his sect. The one, situated in Ahmedabad City was dedicated to the God Narnarayan the other, at Wadtal in the Kaira district, to another incarnation of Krishna, Laxminarayan. Dividing the whole of India into AO/421/2002 14/146 JUDGMENT two dioceses, he subordinated each half to one of these temples; and then selecting two of his nephews to succeed him he caused them to draw lots and under this providential guidance placed each in the supreme control of either diocese, which was thenceforward to be administered in accordance with the written constitution which he had devised. This was in 1827. It was not his design that they should await his death before assuming their new responsibilities. Immediately after their selection he installed them upon their respective thrones, and made over to them full control over the affairs of the sect, divesting himself absolutely of all connection with worldly affairs, though as was natural, he continued to benefit the infant organisation by his influence and advice until his death two years later.” 13. As the dispute with which this Court is faced with is related to southern diocese-Vadtal Gadi, the details of successive 'Acharyas' of this Gadi are set out: AO/421/2002 15/146 JUDGMENT Sl . No . Name of Acharya Period Remarks 1 Raghuvirji 1826- 1863 Adopted by Shri Sahjanand Swamy being his nephew and installed as 'Acharya' of the southern diocese, Vadtal with the consent of the congregation. 2 Bhagvatprasad 1863- 1879 -- 3 Biharilal Prasad 1879- 1899 Adopted by Raghubir Prasad and nominated as 'Acharya'. 4 Laxmiprasad 1899- 1909 Adopted by Biharilal Prasad and installed as 'Acharya'. 5 Sripati Prasad 1909- 1931 Selected and appointed as Acharya. 6 Anand Prasad 1931- 1959 Adopted by Sripati Prasad as 'Acharya'. 7 Narendra Prasad 1959- 1984 Son of Anand Prasad, nominated as 'Acharya'. Deposed by Resolution dated 11.05.2002 passed by Sat Sang Mahasabha Sabha. 8 Ajendraprasadj i 1984 onwards Petitioner herein 14. While commenting upon this Chart of “Acharyas of Vadtal Gadi”, both the parties have made rival submissions. The appellants of Appeal From Order No.421 of 2002 submitted that as far as 'Acharya' is concerned he has a right/ authority/ power to nominate his successor. As against that, the appellants of Appeal From Order No.69 of 2003 submitted that for the appointment of an 'Acharya' the consent of the AO/421/2002 16/146 JUDGMENT congregation-referred to as Dharm Sabha or Satsang Mahasabha was a sine qua non. It was submitted that Shri Laxmi Prasadji was deposed (dethroned) by the congregation-Dharm Sabha and appointed/ installed Sripati Prasad as 'Acharya'. According to them it is only the congregation-Dharm Sabha-Satsang Mahasabha, has the power/ authority to depose an Acharya, when in the opinion of the congregation-Dharm Sabha, Sat Sang Mahasabha, the occupant-Acharya is not upto the expectations of the founder, Shri Sahajanand Swamy. These expectations are found in the scriptures like, (i) Desh Vibhag No Lekh, (ii) Shiksha Patri, (iii) Sat Sang Jivan, and (iv) Vachanamrit. 15. Learned counsels appearing for the respective parties stated that they are not addressing themselves either to the grounds or to the reasons for which Resolution dated 11.05.2002 was passed. They decided not to go in to the correctness of those grounds/ reasons. They restricted their submissions only on the point of maintainability of the suit (Special Civil Suit No.156 of 2002 before Nadiad Court). 16. Mr.Vakil, the learned senior counsel submitted that the present suit (Special Civil Suit No.156 of 2002) is AO/421/2002 17/146 JUDGMENT not maintainable on more than one grounds. He submitted that earlier these very plaintiffs had filed Special Civil Suit No.144 of 2002 in Bhavnagar Court on 28.05.2002. In that suit no injunction was granted at the initial stage, but after biparte hearing injunction was granted. In that suit, the defendants had filed an application to contend that Bhavnagar Court has no jurisdiction, but then that application was dismissed. Dismissal of the defendants' application was challenged in Civil Revision Application No.650 of 2002. Injunction order dated 01.07.2002 was challenged in Appeal From Order No.284 of 2002. Civil Application No.4612 of 2002 was also filed with Appeal From Order. This Court taking into consideration the nature of the controversy involved in the matter on 11.07.2002 passed the following order: “(i) The present appellants should be allowed to enter all the temples under 'Vadtal Desh' (southern diocese) in their individual capacity for performing Darshan and Puja including Arti (ii) Rest of the order shall not operate on an AO/421/2002 18/146 JUDGMENT assurance given by appellant no.1 who is present before the Court that he will not be organising Dhun or any other proceedings under the same and will not be holding any meeting/ congregation. He will also refrain from addressing such meeting within the premises of any temple of Vadtal Desh (southern diocese).” Civil Revision Application No.650 of 2002 and Appeal From Order No.284 of 2002 were heard together and were disposed of on 14.08.2002 by the following order: “Learned advocate Mr.Shah states that since jurisdiction of the court below to entertain the suit in the present nature is questioned, the plaintiffs shall withdraw the suit with a view to presenting the same before appropriate forum. In view of the statement made by Mr.Shah, neither the appeal nor revision application shall survive. The appeal and revision application are accordingly disposed of. The impugned orders made by the court below applications, Exh.5 & 19 stand vacated. On the plaintiffs making application to that effect the court below shall return the plaint to the AO/421/2002 19/146 JUDGMENT plaintiffs for presentation before appropriate forum. .. .. “ 17. The learned senior counsel submitted that the plaintiffs then presented the plaint before the learned Civil Judge (Senior Division), Ahmedabad (Rural) on 04.09.2002. On that very day they withdrew the same. The Purshis filed before the learned Judge is titled as “for returning the plaint”. The application reads as under: “We, the plaintiffs of the suit pray that in the above matter, through oversight the suit has been filed in this Hon'ble Court. However, in this matter the Hon'ble Court's jurisdiction is of Vadtal be pleased to make an order for returning this matter to us to present the plaint in the court having jurisdiction.” 18. The learned Judge passed the following order: “In the matter, according to the order of the Hon'ble Court and the facts of the dispute this Court does not find jurisdiction, returns the plaint for presentation to the proper court as demanded.” AO/421/2002 20/146 JUDGMENT Thereafter, the said plaint was presented before the learned 3rd Joint Civil Judge (Senior Division), Nadiad on 06.09.2002 which was registered as Special Civil Suit No.156 of 2002 and on the same day the Court granted an ad interim injunction. On service of the process and injunction order the defendants appeared before the Court and filed their written statement on 27.09.2002. The matter was heard and haring continued till 30.09.2002. On 30.09.2002, the plaintiffs produced documents which contained 300-400 pages, the plaintiffs also filed written submissions of 23 pages. The learned senior counsel submits that this happened not only in the later part of the day, but at the end of the day, when the arguments had concluded. On the next day, i.e. on 01.10.2002 around 12.30 PM the Court delivered a typed, 45 pages' judgement/ order disposing of exh.5 application finally, confirming the injunction order to last till the disposal of the suit. 19. Learned senior counsel submitted that the Court should take into consideration all these circumstances in totality with a pointed attention to the fact that at Bhavnagar when it was contended that the court has no AO/421/2002 21/146 JUDGMENT jurisdiction, it was opposed and thereafter before this Court it was conceded. This Court while disposing of the Civil Revision Application and Appeal From Order had observed that, “on the plaintiffs making application, the Court below shall return the plaint to the plaintiffs for presentation before the appropriate forum. ” The plaint was then filed before the learned Civil Judge (SD), Ahmedabad (Rural) on 04.09.2002. Thereafter, an application/ Purshis was filed misrepresenting that as per the High Court, 'jurisdiction' is at Vadtal. The learned Judge relying on the averments made in the said application ordered that, 'as per the High Court's order and in light of the dispute the Court having no jurisdiction a demand being made for return of the plaint the same is granted”. The learned senior counsel submitted that on this ground alone the suit be held not maintainable. 20. The learned senior counsel submitted that certain submissions were made at the time of earlier hearing of this Appeal From order, which were also placed before the Hon'ble the Apex Court by way of an affidavit in these very proceedings, therefore, he be permitted to submit the same. Other side objected to these submission saying that the same do not form part of the record. It was AO/421/2002 22/146 JUDGMENT argued that if the learned senior counsel wants to raise those submissions let an application seeking permission be filed. The learned advocate for the appellants filed Civil Application No.8739 of 2005 in Appeal From order No.421 of 2005 seeking permission to produce the 'affidavit in rejoinder' dated 18.10.2004, filed before the Hon'ble the Apex Court. Mr.Vakil, the learned senior counsel submitted that the present hearing is a 're-hearing' of exh.5 after the matter is remitted to this Court by the Hon'ble the Apex Court and therefore, the affidavit in rejoinder can be taken into consideration by this Court. In this Civil Application in light of the submission made in detail by both the sides which are taken into consideration an order is passed at the appropriate stage. 21. The learned senior counsel next submitted that as a condition precedent, plaintiffs must have a prima facie case in their favour to get an order. Explaining this, he submitted that the plaintiffs should have a relatively 'better case' than the defendants. Meaning thereby there should be more likelihood of success of the plaintiffs AO/421/2002 23/146 JUDGMENT than that of the defendants. He submitted that according to him this requirement is not fulfilled and therefore, the learned trial judge ought not to have granted an order of injunction. In support of his submissions he relied upon the following decision of the Hon'ble the Apex Court: (i) Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., reported in (1999) 7 SCC 1 (Paras 7, 16 & 24) (ii) S.M. Dyechem Ltd. Vs. Cadbury (India) Ltd., reported in (2000) 5 SCC 573 (Paras 19, 20 & 21) (iii) Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., reported in A.I.R. 2001 SC 1952 : (2001) 5 SCC 73 (iv) Gujarat Bottling Co. Ltd. & others Vs. Coca Cola Co. & others, reported in (1995) 5 SCC 545 (Para 43) (v) Gagandeep Pratishthan Pvt. Ltd. And others, Vs. Mechano and another, reported in (2002) 1 SCC 475. (vi) National Highways Authority of India Vs. Ganga Enterprises & another, reported in (2003) 7 SCC 410. (vii) Rajasthan Social Welfare Advisory Board and AO/421/2002 24/146 JUDGMENT another Vs. Ram Kishore Meena and others, reported in (2004) 10 SCC 84 (viii) Ashok Kumar