IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9180 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GOSWAMI KALYANRAIJI GOVINDRAIJI Versus GOSWAMI VALLABHRAIJI GOVINDRAIJI -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9180 of 2002 MR SB VAKIL SR. ADVOCATE WITH MR AS VAKIL for Petitioners MR MIHIR THAKORE SR. ADVOCATE WITH MR DEVANG T SHAH for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA Date of decision: 21/10/2002 C.A.V. JUDGEMENT 1. In this petition which is filed under Article 227 of the Constitution, petitioners/original defendants seek to challenge judgment and order dated August 7, 2002 rendered by learned 2nd Extra Assistant Judge, Surat in Misc. Civil Appeal No.120 of 2001 by which appeal filed by the respondent/original plaintiff against the petitioners came to be allowed and thereby order dated November 9, 2001 recorded below Ex.5 in Regular Civil Suit No.9 of 2001 disallowing the respondent's application has been set aside and ad-interim injunction as prayed for by the respondent in prayer clause para 11 (1) and (2) of Ex.5 has been granted till final disposal of the suit whereas cross-objections filed by petitioner Nos.1 and 3 at Ex.10 and petitioner No.2 at Ex.11 have been rejected. 2. Petitioner Nos.1, 2 and 3 herein are the original defendant Nos.1, 2 and 3 whereas respondent herein is the original plaintiff in the lower courts and, therefore, for the sake of convenience and brevity, in this petition also, they are referred to as 'the plaintiff' and 'the defendants'. 3. Since the question involved in this petition is relating to succession of the "Pithadhipati" of Surat Pith where the Nidhi Swaroop of Balkrishanji had been consecrated by First Pithadhipati of Nathdwara Shri Gosai Shri Vithaldasji of Vallabh Sampraday (Pushti Marg) which is of considerable importance for the followers and disciples of the said Sampraday, this matter is taken up for hearing and decided finally at the admission stage with the consent of the learned advocates appearing for the parties. 4. Before highlighting the nature of controversy posed for determination in this petition, it would be advantageous to refer the short history of Vallabh Sampraday and its founder late Shrimad Vallabhacharyaji Mahaprabhuji and as to under what circumstances seven other Piths besides the main Pith at Nathdwara originally in Uttar Pradesh, Rajasthan and Gujarat came into existence and also facts of the plaintiff's case as to under what circumstances he is constrained to file the suit. 4.1. The religious sect known as "Vallabh Sampraday" (Pushti Marg) was founded by late Shrimad Vallabhacharyaji Mahaprabhuji, a Telangana Brahmin, having its main or Pradhan Pith at Nathdwara where an idol of Lord Shrinathji was installed in 16th century. The family pedigree of Shrimad Vallabhacharyaji Mahaprabhu (1535-1587) has been narrated in the suit. Shrimad Vallabhacharyaji Mahaprabhuji had two sons, namely, Shri Gopinathji and Shri Gosaiji Vithalnathji. Shrimad Vallabhacharyaji Mahaprabhuji had bestowed after his heavenly abode, the idol of Shrinathji and of his consort Navnitpriyaji to Shri Vithalnathji who became Pithadhipati of the Pradhanpith at Nathdwara. Shri Vithalnathji had seven sons, namely, Shri Girdharji, Shri Govindraiji, Shri Balkrishanji, Shri Gokulnathji, Shri Raghunathji, Shri Yadunathji and Shri Ghanshyamji. Shri Vithalnathji consecrated seven idols, which were given to his seven sons and they are installed at different piths as follows: --------------------------------------------------------- Location of Aadi Pithadhipatis Name of the the pith, and sons of Gosaiji Nidhi Deity House of Vithalnathji Gadi ------------------------------------------------------ Kota Girdharji Mathuradhishji Nathdwara Govindraiji Vithalnathji Kankroli Balkrishnaraiji Dwarkadhishji Gokul Gokulnathji Gokulnathji Kamvan Raghunathji Gokulchandramaji Surat Yadunathji Balkrishnalalji Kamvan Ghanshyamji Madanmohanji -------------------------------------------------------- 4.2. In this petition we are concerned with the 6th Pith of Surat where Nidhi Swaroop of Lord Balkrishnalalji was bestowed on the Adi first Pithadhipati Shri Yadunathji. It is the say of the plaintiff that the idol of Balkrishnalalji and rights regarding the seva of the said 6th pith at Surat lastly belonged to Shri Goswami Vrajratanlalji Maganlalji Maharaj ('Dadaji' for short) who was grandfather of the plaintiff. It is averred by the plaintiff that Dadaji had executed a will in respect of 6th Pith of Yadunathji and rights of worship were given, jointly in equal shares, to his three grandsons namely, Shri Balkrishnalalji Maharaj, who is the eldest son of Govindraiji, son of Vrajratanlalji, Kalyanraiji who is defendant No.1 and Goswami Vallabhraiji plaintiff himself being the second and third sons respectively of Govindraiji. It is the case of the plaintiff that after demise of Dadaji on 12.10.1995, the worship of Balkrishna Prabhuji was being performed and carried out by his above mentioned three grandsons and in the same way, rights regarding 6th Pith were also jointly enjoyed by them. The plaintiff's elder brother, Shri Balkrishna Maharaj died on 26.10.2000 and thereafter the dispute arose between the parties. 4.3. It is the case of the plaintiff that defendant No.1, Goswami Kalyanraiji Govindraiji - second grandson of Dadaji, is trying to establish rights of defendant No.2 Goswami Gopeshraiji Balkrishnalalji who is the eldest son of late Shri Balkrishnalalji and defendant No.3 Goswami Mukundraiji Balkrishnalalji, a second son of late Shri Balkrishnalalji. According to the plaintiff, by virtue of the will and Codicil made by late Dadaji the plaintiff has 1/3rd share in 6th Nidhi Swaroop of Lord Balkrishnalalji and in the performing seva and to act as a joint Pithadhipati of 6th Pith at Surat. It is the say of the plaintiff that after death of Shri Balkrishnalalji, defendants are trying to encroach upon his rights in performing Seva and to act as a joint Pithadhipati. It is also the say of the plaintiff that the defendants are trying to act independently performing the Tilak Mahotsav and doing other activities by trying to encroach upon the rights of the plaintiff of his 1/3rd share of the Pithadhipati and therefore he is constrained to file Regular Civil Suit No. 9 of 2001 for declaration and injunction against the defendants. 4.4. In the suit the plaintiff has prayed for the following reliefs: (i) that it be declared that the defendants do not have any independent/sole right to perform any Tilak ceremony or other activity as the sole Shashthapithadhipati of the Shashthapith at Mota Mandir situated at Chauta Bazar, Surat wherein is placed the Shashthagruhanidhi Shri Balkrishna Prabhuji, i.e., Yadunathji's sixth Gadi, of which the plaintiff and the defendants are jointly the Shashthapithadhipatis; (ii) that it be declared that the defendants have no independent/sole right to deal with, administer or dispose of or squander away, any movable or immovable properties, ornaments, clothes or any other properties associated with the idol of Shri Balkrishna Prabhuji; (iii) to permanently restrain the defendants from holding or causing to be held through worshipers, followers or any other person or institution "Tilak Mahotsav" as the sole Shashta Pithadhishwar or from doing any act which would establish the same or from performing or causing to perform seva of the sixth Nidhi of Shri Balkrishna Prabhuji, i.e., the Swaroop (idol) of the sixth Gadi of Yadunathji and of Padukaji Hastakshar, etc., seated with them and from changing or displacing the second Swaroop of Balkrishnaji belonging to the plaintiff's father Shri Govindraiji Vrajratanlalji Maharaj known as Chhota Thakurji, Hastakshar of Mahaprabhuji and Gosaiji belonging to the plaintiff's father and other seven swaroops and (iv) to permanently restrain the defendants by themselves, their servants, agents or followers from effecting any changes or squandering away the above referred properties and the idol of Shri Balkrishnalalji and the ornaments and clothes of idol; (v) that the defendants be directed to pay compensatory costs; (vi) the Honourable Court be pleased to grant such other reliefs as may be considered proper and in the interest of justice". 4.5. The plaintiff filed application Ex.5 alongwith the suit and prayed for interim injunction in terms of paras (iii) and (iv) of the suit. 4.6. The defendants on filing their appearance contested the suit as well as application Ex.5 by filing their written statements and counter affidavits at Ex.55 and Ex.86 wherein inter alia it is stated that Vallabh Sampraday was started by Shri Mahaprabhu Shri Vallabhacharyaji about 500 years ago and as per tenets of Vallabh Sampraday, the right regarding the idols is inherited by the eldest son of eldest branch and the eldest son of the eldest branch is known as the Pithadhishwar of the house of the Vallabh Sampraday and this type of tenets is being followed right from the beginning and at no point of time the said tenets has been broken. Jurisdiction of the Civil Court is also challenged by contending that this being a question of Hindu tenets, Civil Court has no jurisdiction to decide the issue raised in the case. It is also contended that Late Shri Dadaji had already given up rights of Balkrishnalalji Prabhuji in his life time in favour of his elder son, namely, Govindraiji and this fact is very well known to the plaintiff, even though, in his pleadings, he has suppressed the said material fact before the Court. It is also contended by the defendants that even looking to the pleadings of the plaintiff and on demise of Shri Govindraiji, the said rights were bestowed on his eldest son Balkrishnalalji and on demise of Balkrishnalalji, those rights were bestowed on his eldest son Gopeshraiji, defendant No.2 to the knowledge of the plaintiff and therefore the plaintiff's suit is not maintainable. It is also pleaded that the plaintiff has never challenged the rights of Govindraiji and Balkrishnalalji during the life time of Dadaji and hence the present suit has been filed by the plaintiff after a very long period is not maintainable as the suit is hit by delay, laches, waiver, estoppel and acquiescence. Lastly it is contended that the plaintiff has not followed the order 39 Rule 3 of the Code of Civil Procedure ('the Code' for short) and therefore his application for ad-interim injunction may be rejected with costs and thereby the ad-interim injunction granted at the time of presentation of the suit and application may be vacated. 4.7. After hearing the learned advocates appearing for the parties, considering the averments made in the pleadings and the documents annexed therewith and on the facts and circumstances of the case, the learned Civil Judge (J.D.)., Surat came to the conclusion that the plaintiff has established prima facie case and that the defendants have not been able to establish any custom pleaded by them to the affect that only the eldest son is entitled to be the Shashthapithadhishwar. It is also held that the Will and Codicil are binding to the defendants. It is also held by the learned trial Judge that the plaintiff is entitled to interim injunction as prayed for but only because of the reason that the plaintiff had not complied with the provisions of Order 39 Rule 3 of the Code he is not entitled to interim injunction and accordingly rejected the plaintiff's application for injunction vide order dated 9.11.2001. However, the learned trial Judge has extended the ex-parte ad-interim injunction granted earlier by him to enable the plaintiff to prefer Appeal from Order before the District Court. 4.8. Aggrieved by the order passed by the learned trial Judge, the plaintiff knocked the door of the District Court by filing Civil Misc. Appeal No.120 of 2001 which was placed for admission hearing before the learned 2nd Extra Assistant Judge, Surat, who, while admitting the appeal, has directed the parties to maintain status quo during the pendency of the appeal as on the date of the suit and initial order passed below application Ex.5 in lower court. 4.9. The learned appellate Judge after hearing the learned advocates appearing for the parties and considering the averments made in the pleadings, documents annexed therewith and the order passed by the learned trial Judge which was impugned before him, came to the conclusion that Civil Court has jurisdiction to try and decide the issue raised in the suit between the parties. It is also held by him that there is no custom in Vallabh Sampraday that the idol is inherited by the eldest son of the eldest branch and he is known as the Pithadhishwar of the house of the Vallabh Sampraday. It is also held by him that the Will and Codicil made by Dadaji are amply proved and by virtue of the said will late Shri Balkrishnalalji, father of defendant Nos.2 and 3, Kalyanraiji, defendant No.1 and Vallabhraiji - the plaintiff became jointly the Pithadhipati of the 6th pith at Surat and the plaintiff has established prima facie case successfully and, therefore, entitled to injunction as prayed for. Resultantly vide order dated August 7, 2002 he allowed the appeal filed by the plaintiff and thereby the order dated November 9, 2001 recorded below application Ex.5 in Regular Civil Suit No. 9 of 2001 by which the plaintiff's application for injunction has been negatived has been quashed and set aside and ad-interim injunction as prayed for by the plaintiff in terms of para 11 (1) and (2) of application Ex.5 is granted till final disposal of the suit whereas cross-objections filed by defendant Nos.1 and 3 at Ex. 10 and by defendant No.2 at Ex.11 have been rejected which has given rise to the present petition at the instance of the defendants. 5. After hearing Mr. S.B. Vakil, learned senior counsel appearing for the defendants at great length and Mr. Mihir Thakore, learned senior counsel appearing for the plaintiff also at great length and on careful and close scrutiny of the impugned judgment and order, I do not find any infirmity with the same and in view of the settled principles of law enunciated by the Supreme Court in catena of decisions with regard to the limited jurisdictional sweep of the High Court in a petition filed under Article 227 of the Constitution (see Ouseph Mathai v. M. Abdul Khadir, (2002) 2 SCC 319) I would have normally rejected the petition recording a short order but since Mr. Vakil has advanced the arguments at length and elaborately argued all the points and therefore obviously Mr. Mihir Thakore has also replied to the same in great detail and also as the matter relates to the rights of Pithadhipati of Balkrishna Prabhu at 6th Pith at Surat, which is a holy place for followers and disciples of Vallabh Sampraday (Pushti Marg) and as adjudication relating to the succession to Pithadhipati of Sixth Pith at Surat has a far reaching effect at other piths also, I deem it expedient to consider all the contentions advanced before me and answer the same elaborately while rejecting the petition. 6. This is a petition filed under Article 227 of the Constitution. The defendants, therefore, highlighted the pleadings submitted at the trial court, findings recorded by both the courts below, grounds assailing the findings recorded by the appellate court and the history and the origin of Vallabh Sampraday at Shrinathji Temple at Nathdwara in the memo of the petition, on oath, including the scope of the jurisdiction of this Court to interfere with the impugned order. Similarly the plaintiff has also by filing reply affidavit at length denied the averments made in the memo of the petition and asserted how the judgment of the learned 2nd Extra Assistant Judge does not warrant any interference and the scope of judicial review under Article 227 of the Constitution, stated on oath. 7. The petition and the reply affidavits are exhaustively drafted. Therefore, I do not deem it expedient to reproduce the averments made in the petition and reply affidavit in this judgment. However, same shall be referred to in this judgment as and when required. 8. Mr. S.B. Vakil, learned Senior counsel appearing for the defendants has argued the matter at length and exhaustively. The submissions advanced by him can be catalogued as under: (I) Prior to coming into force in July 2002 the amendment to Section 115 of the Code, the remedy of a person aggrieved by an appellate order of interim relief was a revision application under section 115 of the Code. However, after the amendment of Section 115 of the Code, no revision application would be competent against such an order. Therefore, the petition filed under Article 227 of the Constitution against the impugned appellate judgment and order of the District Court is not barred on the ground of availability of alternative remedy. In support of the aforesaid contention, Mr. Vakil has relied upon the following decisions: (i) Achutananda Baidya v. Prafullya Kumar Gayen and others, (1997) 5 SCC 76. (ii) Baby v. Travancore Devaswom Board, AIR 1999 SC 519. (iii) Raghunathe Jew at Bhapur v. State of Orissa and others, (1999) 1 SCC 488. (iv) Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd., and others, (1999) 4 SCC 710. (v) Vadivelu v. Sundaram and others, (2000) 8 SCC 355. (II) Right which the plaintiff seeks to establish in the suit is a joint right of religious status or character of Pithadhipati (not amounting to an office) and is not a dispute of civil nature as contemplated by section 9 of the Code and therefore since the dispute is outside the purview of Section 9 of the Code, Civil Court has no jurisdiction to decide the same. Notwithstanding this position, the Civil Court has entertained the suit and decided the application Ex.5 which is, per se, erroneous, illegal and void ab initio and therefore this Court must interfere with the impugned judgment and order. The said question of jurisdiction is required to be decided first before going to decide the merits of the application for interim injunction and since the suit is not competent and without jurisdiction, the plaintiff has no prima facie case in the suit. In support of the aforesaid contention, the learned senior counsel relied upon the following decisions: (i) State of Gujarat v. Mangal Traders, Jamnagar, 1987 (1) GLH 493. (ii) Sri Sinha Ramanuja Jeer alias Sri Vanamamalai Ramanuja Jeer Swamigal v. Sri Range Ramanuja Jeer alias Emberumanar Jeer and others, AIR 1961 SC 1720. (iii) Vathiar Venkatachariar v. P. Ponappa Ayyengar and others, AIR 1919 Madras 1026. (iv) Advocate-General of Bombay v. Yusuf Ali Ebrahim and others, AIR 1921 Bombay 338. (v) Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and others, AIR 1922 Privy Council 123. (vi) Chitti Babu Mudaliar v. A. Venkatasubbu Mudaliar and another, AIR 1933 Madras 264. III. Succession to the status or character of a Pithadhipati to the 6th Pith at Surat. The succession to the Gadi of the Tilkayat heirs, from the very beginning, being governed by the rule of primogeniture. This succession received recognition from the rulers of Mewar from time to time where the Pradhan Pith is situated. Rule of primogeniture succession to the Gadi is different from and not the same as the rule of primogeniture governing succession to impartible estate. All instances governing succession by rule of primogeniture to an impartible estate have no application to succession under a rule of primogeniture to a religious status and therefore defendant No.2 i.e., eldest son of Balkrishnalalji who was the eldest son of Govindraiji is the Pithadhipati of 6th Pith at Surat and therefore the plaintiff has no right whatsoever to become Pithadhipati of said pith and therefore Vrajratnalalji has no right to make will, Codicil as well as deed of partition of the 6th pith at Surat. In support of the aforesaid contention, the learned senior counsel has relied upon the following decision: (i) Tilkayat Shri Govindlalji Maharaj, etc., v. State of Rajasthan and others, AIR 1963 SC 1638. (IV) Besides this, the learned senior counsel has also submitted a written submission contending the same thing. On the aforesaid premises, the learned senior counsel contended that the judgment and order impugned is ex-facie erroneous and deserves to be quashed and set aside by refusing to grant injunction as prayed for by the plaintiff and therefore the petition deserves to be admitted and allowed. 9. Mr. Mihir Thakore, learned senior counsel appearing for the plaintiff has argued the matter at length and his submissions are elaborate indeed. The submissions advanced by him can be catalogued as under: (I) Petition under Article 227 of the Constitution cannot be entertained in view of the concurrent finding of facts recorded by both the lower courts and in view of the amendment of Section 115 of the Code there is no need to interfere with the discretion exercised by the lower courts. In support of the aforesaid judgment, the learned senior counsel has placed reliance on the following decision: (i) Mohd. Yunus v. Mohd. Mustaquim and others, (1983) 4 SCC 566. (II) It is contended that prior to the amendment of the Code, a person aggrieved by any order in such Misc. Civil Appeal filed under Order 43 Rule 1 (r) of the Code was required to prefer a Civil Revision Application under Section 115 of the Code. In view of the amendment to the Code with effect from July 1, 2002, the scope of Section 115 has been substantially narrowed and now a revision would lie only when the judgment/order, if it had been made in favour of the party applying for the revision would have finally disposed of the suit. Since an order in Misc. Civil Appeal would not dispose of the suit finally, no revision is now maintainable. The mere fact that the power of the court to entertain petition under Article 227 of the Constitution is not circumscribed by any limitations does not imply that the High Court should entertain petitions under Article 227 of the Constitution in respect of orders which were originally revisable, preferably when the legislature has though it fit to narrow down the scope of Section 115 of the Code and has disallowed a revision against such orders, otherwise the very intention of the legislature would be frustrated. The High Court should refrain itself from interfering with orders passed in such Misc. Appeal under Article 227 of the Constitution of India, for by entertaining such petitions the Court is doing something indirectly which is prohibited by the legislature by amending Section 115 of the Code. In support of the aforesaid contention, the learned Senior counsel relied upon the following unreported decision of this Court (Coram: Jayant Patel, J.): (i) Patel Prahladbhai Joitaram v. Patel Visabhai Revabhai, in Special Civil Application No. 7741 of 2002, decided on 19.8.2002. (III) The Nidhi Swaroop of Balkrishnaprabhuji (idol) is considered as property in the Vallabh Sampraday. In the circumstances, it is also accepted practice that one to whom the idol is bestowed, gets the Gadi and accordingly when the Nidhi Swaroop has been bestowed by will on the three grandsons they would jointly become the three Pithadhishwars and the contention of the defendants that Pithadhipati and Pithadhishwar is merely a character or status is not tenable and therefore the contention advanced by the defendants that the suit is not maintainable in view of the bar contained under section 9 of the Code is misconceived. (IV) Besides this it is also asserted by the learned senior counsel that the post of Pithadhipati is a religious office and associated with it are the emoluments attached to it and is therefore also a property as laid down by the Supreme Court in various decisions. The office of the Pithadhipati, if and only if idol is considered independent entity in Vallabh Sampraday, would be akin to that of a Shebait and such an office is also property in law as laid down by the Supreme Court. Therefore, the claim of the plaintiff in the