OP(C).No.1711/2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 9TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **OP(C).No.1711 of 2019** **AGAINST THE ORDER IN IA NO.1637/2019 IN OS 252/2019 of PRINCIPAL MUNSIFF COURT , KOCHI** ## **PETITIONER/2ND DEFENDANT OS NO.252/2019:** **COCHIN THIRUMALA DEVASWOM, GOSRIPURAM KOCHI-682 002, REPRESENTED BY ITS PRESIDENT, SRI. B. JAGANATHA SHENOY, S/O. G. BALAKRISHNA SHENOY, 8/1587A, SHANKARAM, VAMAN MASTER LANE, KOVAPPADAM, KOCHI-682 002** **BY ADVS. SRI.R.LAKSHMI NARAYAN SRI.M.ASHOK KINI** ## **RESPONDENTS/PLAINTIFFS IN OS NO.252/2019:** - **1 ATHMANANDA RAO,** **S/O. MADHAVA RAO, AGED 52 YEARS, RESIDING AT 12/312, ARAKKAPARAMBU ROAD, KOCHI-682 002.** - **2 R. KARTHIK BHAT,** **S/O. K. RENJITH KUMAR BHAT, AGED 31 YEARS, RESIDING AT 4/826/1, KAUSTHUBHAM, J.A. BUTT STREET, KOCHI-682 002** ## **OTHER PRESENT:** **SRI.R.D.SHENOY (SR.) FOR PETITIONER,ADV.K.R.VINOD AND ADV.RISHIKESH SHENOY.M FOR R** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2019, THE COURT ON 9/7/2019 PASSED THE FOLLOWING:** O.P.(C) No.1711/2019 2 ## **JUDGMENT** ` The second defendant in OS No.252/2019 of the Munsiff Court, Ernakulam, aggrieved by the order dated 26/2/2019 in IA No.1637/2019 has preferred this original petition. 2. The case of the plaintiffs before the court below was that they are the disciples of Shree Kashi Math Samsthan and also devotees of Lord Sri.Venkatachalapathi. The second defendant is the Cochin Thirumala Devasom, which is an ancient temple belonging to the Gowda Saraswath Brahmin Community of Cochin and is the mother of all institutions of the above community. The plaint schedule temple and its premise are shown as the plaint schedule property. 3. According to the plaintiffs, Mathadhipathi of Shree Kashi Math Samsthan is the supreme religious head of the Mahajana Yogam and exercises all powers, rights and privileges, as per the Devaswom Chatta Patram. During his life time, as per the traditional customs of of Kashi Math, third defendant was taken was taken as a shishya/successor of Shree Kashi Math Samsthan. After the death of Mathadhipathi of Kashi Math, it is alleged that the rival claim is set up by the first defendant claiming himself to be the Mathadhipathi. The third defendant herein had filed OS No.34/2000 before the Ivth Addiitional District Court, Thirupathi claiming spiritual and temporal supremacy and claiming himself to be the 21[st] Mathathipathi. By judgment of the O.P.(C) No.1711/2019 3 Additional District Court, the suit was dismissed and the counter claim filed by the then Madathipathi stands decreed. The decree was transferred for execution to the First Additional District Court, Ernakulam. 4. While so, after the demise of the senior Madathipathi in 2016, the first defendant claimed to succeed to the execution petition claiming that he is the Mathathipathi. The execution court by its order dated 12/4/2019 has sent back the decree to the IVth Additional District Court, Thirupathi for adjudicating the authority of the claimants and the matter is pending. 5. According to the plaintiffs, during the pendency of the above adjudication, neither the first defendant nor the third defendant can claim to be Madathipathi of Kashi Math Samsthan. The first defendant posing himself to be the Matathipathi proposed to conduct poojas and rituals in the plaint schedule property on 25/6/2016. Hence, the suit was filed and the interlocutory application for injunction prohibiting the first defendant from posing himself as Mathadhipathi was sought. Interim injunction was granted restraining the first defendant from coming to the plaint schedule property, conducting any rites , rituals or receiving any honours or holding processions holding out as the Matadipathi of Kashi Math Samathanam. 6. Aggrieved by the above order, the second defendant has preferred this petition. O.P.(C) No.1711/2019 4 7. Heard the learned senior counsel for the petitioner and the counsel for the respondent. 8. Grievance of the petitioner herein is that the visit of the first respondent was announced much earlier and in spite of knowing about it, petitioners have approached this court on the eve of his visit, with mala fide motives. Injunction order was not served on the petitioner and it was available from the website. Hence, the petitioner had to rush to this court to seek reliefs. It was also contended that the first defendant was the Matathipathi of Kashi Math Samathanam and had been appointed so by the previous Matathipathi. It was approved by the Additional District Court, Thirupathi and eternal facts were suppressed from the court below and if the entire facts had been placed before the court below, court would not have passed an ex parte order. It was also contended that the petitioners are only two devotees, have no special interest and have come up at the instance of other persons. 9. Learned Senior Counsel, to substantiate his contentions, relied on Ext.P1, which was a Vinathi Pathram issued by the petitioner on 13/12/2018 inviting the first defendant to visit the temple. It was accepted by Ext.P2 and itinerary was given by which the first defendant was to visit Kochi from 25/6/2019 to 2/7/2019. This was widely published in advance evidenced by Ext.P4. The main grievance of the petitioner is that the court below ought to have taken note of the fact that only on 24[t,h] petitioner moved the court below and sought injunction. O.P.(C) No.1711/2019 5 10. Regading the entitlement of the first defendant to succeed to the throne of Madathipathi, learned senior counsel relied on Ext.P5 proclamation dated 8/9/2015 stated to have been issued by the then Pontiff. Ext.P8 is the judgment of the court in Bangalore by which the first defendant representing Kashi Math Samathanam had filed a suit against the third defendant. Injunction was granted against him. According to the learned senior counsel, this has become final and an interim injunction is in force. Ext.P7 is the judgment of this Court by which this court directed the CBI to attempt to trace out the third defendant who was the judgment debtor and stated to be missing. Relying on these documents, it was contended by the learned senior counsel that these facts evidenced that the first defendant was the successor in office and no injunction could have been sought by the petitioners who are only the devotees. 11. According to the learned counsel for the respondents, the District Court, Ernakulam, which was executing the order at the instance of the then Kashi Madathipathi, after his demise had forwarded the decree to Tirupathi court for recording the successor and bringing him on record. Hence, according to the learned counsel, issue as to who is entitled to succeed 20[th] Matathipathi is still at large. It was also contended by the learned counsel, relying on the decision reported in _**A.Venkatasubbah Naidu v .S.Chellappa and Others(2000 KHC 1703)**_ , **Sudheerkumar v. Praveena (2018 (4) KHC 460)** and O.P.(C) No.1711/2019 6 ## _**Rev.C.Chrispus v. Rev.M.Robinson and Others (2016 KHC 894)**_ that this court in exercise of jurisdiction under Article 227 of the Constitution of India shall not interfere in the order passed under Order 39 Rule 1 especially when other reliefs are available. 12. Having considered the entire facts, it seems that the petitioner herein should be given reasonable opportunity to file the counter affidavit before final order on injunction application is passed by the court below. Having considered this, I feel that the issue raised by both sides can be effectively considered by the court below only on the basis of the affidavit, counter affidavits and the materials to be placed before it. It is also pertinent to note that since the visit of the first defendant was during the period from 25.6.2019 to 2//7/2019 and that time has expired, no purpose will be served by interfering with the impugned order. However, an interim order granted by this court is continuing. I feel that the interim arrangement can continue till the trial court passes appropriate orders. 13. Having considered the entire facts, I am inclined to direct the trial court to consider afresh the entire issue untrammeled by any observations made by this court, after giving a reasonable opportunity to both sides to place their documents and pleadings. 14. The court below shall pass appropriate orders at the earliest, at any rate within a period one month from the the date of appearance to be fixed hereafter or from the date of completion of service whichever O.P.(C) No.1711/2019 7 is later. Both sides shall appear before the court below on 18/7/2019. Interim order passed by this court will continue until further orders passed by the court below. The original petition is disposed of as above. **Sd/-** dpk **SUNIL THOMAS JUDGE** O.P.(C) No.1711/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE REQUEST LETTER DATED 13.12.2018** - **EXHIBIT P2 THE PHOTOCOPY OF THE RAYASA PATHRAM. EXHIBIT P3 THE PHOTOCOPY OF THE CAMP LIST DATED** - **THE PHOTOCOPY OF THE CAMP LIST DATED 6.4.2019.** **EXHIBIT P4 THE PHOTOCOPY OF THE NOTICE AND INVITATION DATED NIL.** **EXHIBIT P5 THE PHOTOCOPY OF THE PROCLAMATION DATED 8.9.2015.** - **EXHIBIT P6** **THE PHOTOCOPY OF THE ORDER DATED 24.06.2019 IN IA NO. 1637/2019 IN OS NO. 252/2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOCHI.** **EXHIBIT P7** **THE PHOTOCOPY OF THE JUDGMENT DATED 12.8.2015 IN TRP(C) 496/2014) AND IA NO. 17447/2013 IN OPC NO. 256/2013 ON THE FILE OF HON'BLE HIGH COURT OF KERALA.** **EXHIBIT P8 THE PHOTOCOPY OF THE ORDER DATED 17.7.2017 OF THE PRINCIPAL CITY CIVIL AND SESSIONS COURT, BANGALURU.** **EXHIBIT P9 THE PHOTOCOPY OF THE PLAINT BEARING OS NO. 252/2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOCHI.** - **EXHIBIT P10** **THE PHOTOCOPY OF THE IN IA NO. 1637/2019 IN OS NO. 252/2019 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOCHI.**