Full Judgment Text
2025:BHC-AUG:20586
1 cra 146.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 146 OF 2025
Shri Balaji Mandir Sansthan
and others .. Applicants
Versus
Sanjay Laxman Pathak and others .. Respondents
Shri Bharat R. Waramaa, Advocate for the Applicants.
Shri Aditya R. Deshmukh, Advocate h/f Shri Ravindra M.
Deshmukh, Advocate for the Respondent No. 1.
Shri D. B. Bhange, A.G.P. for the Respondent No. 3.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR ORDER ON : 30.07.2025
ORDER PRONOUNCED ON : 04.08.2025
FINAL ORDER :
. Heard the contesting parties finally at the admission stage
with their consent. As the matter pertains to order passed under
Order VII Rule 11 of the Code of Civil Procedure (for the sake of
brevity and convenience hereinafter referred as to the “C.P.C.”),
applicants and the respondent No. 1 are the contesting parties,
who are original defendant No. 1 and plaintiff respectively in Spl.
C. S. No. 16 of 2024.
2. Applicants are aggrieved by rejection of their application
Exhibit 95 vide order dated 15.04.2025 passed by the learned
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Trial Court refusing to reject the plaint.
3. Respondent No. 1 has filed Spl. C. S. No. 16 of 2024 for the
relief of declaration and injunction. It is contended that
applicant is a trust having old temple of Balaji at Parola.
Remaining applicants are office bearers of the trust. It is
contended that plaintiff since his forefathers is working as
Archak in the Balaji temple. It is their hereditary right which is
being exercised continuously since the year 1900. He is being
discontinued by the trustees from 25.08.2024 and he is being
replaced by the applicant No. 16. This action is sought to be
challenged in the suit on the ground that no proper procedure
has been followed and it is in defiance of easementary right.
4. Applicants contested the suit by filing written statement
challenging all the contentions of the respondent No. 1/plaintiff.
In paragraph Nos. 17 and 18 of the written statement hereditary
right of Archakship is challenged relying on Constitution Bench
decision of the Supreme Court and the provisions of the
Maharashtra Public Trust Act (for the sake of brevity and
convenience hereinafter referred as to the “Act”). They further
filed application Exhibit 95 U/O VII Rule 11 of the C. P. C. to
reject the plaint predominantly on the following grounds :
(i) Bar under the Constitution,
(ii) Bar under the provisions of the Contract Act and the
Specific Relief Act,
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(iii) Bar under the provisions of the Maharashtra Public
Trust Act.
5. The respondent No. 1/plaintiff filed say to the application.
Applicants also tendered on record written submissions and
thereafter a pursis. By order dated 15.04.2025 Exhibit 95 is
rejected. Hence they have approached this Court.
6. Mr. B. R. Waramaa, learned counsel for the applicants
submits that the respondent No. 1 is asserting his right as
Archak being easementary right, which is against the
Constitution of India and it’s basic structure. The claim of
easementary right is against the Easement Act. The relief
sought in the plaint is founded on misconceived notion of right to
perform puja, which is not absolute and which is against public
policy. It is submitted that right claimed by the respondent No. 1
is against the provisions of the Contract Act and the Specific
Relief Act.
7. It is vehemently submitted by Mr. Waramaa, learned
counsel for the applicants that learned Trial Judge did not bother
to consider the Constitution Bench judgments of the Supreme
Court in the matter of Sheshammal Vs. State of Tamil Nadu reported in
(1972) 2 SCC 11 , the judgment of the Karnataka High Court in the
Sri Ramchandra and others Vs. Sri Shivram and others
matter of reported in
2008 (5) KCCR 664 and the judgment of the learned Single Judge of
the Madras High Court dated 05.02.2025 in Writ Petition No.
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3838 of 2025 in the matter of A. Rajendran Vs. The Joint
Commissioner, Hindu Religious and Charitable
Endowment Department, Coimbatore District . Those were
specifically referred in the written submissions, but still
overlooked by the learned Trial Court, which amounts to judicial
indiscipline.
8. It is submitted that the Trial Court is bound by the ratio
laid down in the above judgments and he was obliged to deal
with them. It is submitted that the Trial Court referred to three
judgments of the Supreme Court and this Court in the matter of
Sahebgouda (Dead) by L.Rs. and others Vs. Ogeppa and others reported in
2003(3) All MR 1193 (S.C.) , Vinayaka Dev Idagunji and others Vs. Shivram and
others reported in (2005) SAR (Civil) 673 and Shri Datta Deosthan Trust
Vs. Shri Milind Govind Kshirsagar and others reported in 2011(5) All MR
165 in the impugned order, which are not relevant and which
were not cited by either of the parties. No opportunity was given
to the applicants to deal with those judgments. It is submitted
that by very cryptic order application Exhibit 95 is rejected.
Matter needs to be remitted back to the Trial Court for a fresh
decision.
9. It is submitted that the plaint is liable to be rejected for
want of cause of action in view of the exposition by the Supreme
Court in the matter of Sheshammal Vs. State of Tamil Nadu (supra) and
judgment dated 13.11.2006 delivered by the learned Single
Judge of this Court in the matter of Balkrishna Pandharinath
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Badve and others Vs. The State of Maharashtra and
others in Second Appeal No. 46 of 1985 with other connected
second appeals. The suit is barred by law and it is against
Sections 50 and 51 of the Act.
10. Per contra, learned counsel Mr. Aditya Deshmukh for the
respondent No. 1 – plaintiff supports impugned order. He would
submit that application Exhibit 95 does not spell out any
particular provision of the Constitution of India or the Act
debarring the jurisdiction of the Civil Court. It is submitted that
in application Exhibit 95 no ground of want of cause of action is
raised. It is submitted that Sec. 14 of the Specific Relief Act and
Sec. 23 of the Contract Act are not applicable. As claim is
founded on an individual right, no previous sanction is
contemplated. A reliance is placed on the judgment of the
Supreme Court in the matter of Vinayaka Dev Idagunji and others Vs.
Shivram and others (supra). It is further submitted that the
judgments sought to be referred by the applicants cannot be
made applicable for an inquiry U/O VII Rule 11 of the C. P. C.
11. Learned counsel Mr. Bharat Waramaa for the applicants
has taken me through written submissions and the judgment of
the Constitution Bench of the Supreme Court in the matter of
Sheshammal Vs. State of Tamil Nadu (supra), judgment of the learned
Single Judge of the Madras High Court in the matter of A.
Rajendran Vs. The Joint Commissioner, Hindu Religious
and Charitable Endowment Department, Coimbatore
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District (supra), the judgment of the learned Single Judge of
this Court in the matter of Balkrishna Pandharinath Badve
and others Vs. The State of Maharashtra and others
(supra). He has extensively argued referring to various
paragraphs of those judgments to buttress submission that it’s
judicial indiscipline not to refer to principles laid down in the
judgments.
12. None of those judgments are helpful to the applicants
because those are not rendered while deciding application U/O
VII Rule 11 of the C. P. C. In none of the judgments, it is laid
down that if any right of archakship is asserted or it is sought to
be exercised in a suit U/Sec. 9 of the C. P. C., plaint is liable to be
rejected. None of these judgments refer to any specific provisions
of the Constitution of India or any other law excluding the
jurisdiction of the Civil Court U/Sec. 9 of the C. P. C. for granting
relief of declaration for asserting hereditary right of archakship.
These judgments can be pressed into service during the course of
trial, but not for the inquiry U/O VII Rule 11 of the C. P. C.
13. The submissions canvassed by the applicants are mainly
based upon the pleas raised in the written statement. Even
Constitution Bench judgment of the Supreme Court in the
matter of Sheshammal Vs. State of Tamil Nadu (supra) is referred in the
written statement. These pleas and the submissions made, are
out of the purview of Order VII Rule 11 of the C. P. C. The plaint
and documents produced with it can be gone into at that stage.
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14. A reference of judgment of the Supreme Court in the
matter of Sahebgouda (Dead) by L.Rs. and others Vs. Ogeppa and others
(supra) is made in the impugned order. In that case issue was
pertaining to the jurisdiction of the Civil Court to entertain a
suit for the relief of declaration. The plaintiffs in that case were
claiming to be ancestral vahivatdar/pujaries. It is apposite to
quote paragraph Nos. 8 and 9 of the judgment.
“8. The question whether the suit filed by the appellants is barred
by the provisions of Section 80 of the Act has to be examined in the
light of the provisions referred to above. Section 9 of Code of Civil
Procedure clearly lays down that the Civil Court shall have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred. It is well
settled that the Civil Court has jurisdiction to try all suits of civil
nature and the exclusion of jurisdiction of the Civil Court is not to be
rightly inferred. Such exclusion must be either explicitly expressed or
clearly implied. In Musamia Imam Haider Bax Razvi Vs. Rabri
Govindbhai Ratnabhai & Ors. AIR 1969 SC 439 (para 7) this Court
observed that it is necessary to bear in mind the important principle of
construction which is that if a statute purports to exclude the ordinary
jurisdiction of a civil court it must do so either by express terms or by
the use of such terms as would necessarily lead to the inference of
such exclusion. This principle was reiterated in Dewaji v. Ganpatlal
AIR 1969 SC 560.
9. It is also well settled that a provision of law ousting the
jurisdiction of a Civil Court must be strictly construed and onus lies
on the party seeking to oust the jurisdiction to establish his right to do
so. In VLNS Temple Vs. I. Pattabhirami Reddi AIR 1967 SC 781
Subba Rao,J. speaking for the Court held as under in para 13 of the
reports:
"Under Section 9 of the Code of Civil Procedure, the courts shall
have jurisdiction to try all suits of a civil nature excepting suits of
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which their cognizance is either expressly or impliedly barred. It is a
well settled principle that a party seeking to oust jurisdiction of an
ordinary civil court shall establish the right to do so. Section 93 of the
Act does not impose a total bar on the maintainability of a suit in a
civil court. It states that a suit of the nature mentioned therein can be
instituted only in conformity with the provisions of the Act; that is to
say, a suit or other legal proceeding in respect of matters not covered
by the section can be instituted in the ordinary way. It therefore
imposes certain statutory restrictions on suits or other legal
proceedings relating to matters mentioned therein."
It is concluded by the Apex Court that right sought to be
exercised by the plaintiff were not within the ambit of Sec. 79
read with Sec.19 of the Act. The judgment is rightly referred by
the Trial Court in the wake of sub clause (d) of Rule 11 of Order
VII of the C. P. C. The jurisdiction of Civil Court is considered
under similar set of circumstances.
15. Further reference to the judgment of the learned Single
Judge of this Court in the matter of Shri Datta Deosthan Trust Vs. Shri
Milind Govind Kshirsagar and others
(supra) is also appropriate to the
fact and situation because that was also in respect of inquiry U/O
VII Rule 11 of the C. P. C. In that case plaintiff was claiming
relief of injunction to assert his right of performance of puja and
other religious activities of family idols. The plaint was sought to
be rejected by the defendants. Their application was rejected. It
was held that the Trial Court in that case did not traverse
beyond the jurisdiction.
16. The judgment of the Supreme Court in the matter of
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Vinayaka Dev Idagunji and others Vs. Shivram and others (supra) is rightly
referred by the Trial Court. In that case plaintiffs claiming to be
hereditary archak in temple from time immemorable were
seeking declaration to establish those rights. A preliminary
issue as to the jurisdiction of the Civil Court is considered by the
Supreme Court. The Trial Court reproduced para No. 14, but
both para Nos. 13 and 14 of the judgment referred above are
relevant, which are as follows :
“13. What is to be seen is the relief the plaintiffs are seeking from
the court. First of all, they are seeking a declaration about their
hereditary right as archaks of the temple. This right is claimed in
their personal capacity as a family of archaks who have been
performing the functions of archaks since the day the temple was
established and the deity was consecrated. It is different matter
whether ultimately the plaintiffs’ contention is accepted by the court
or not. Surely, the plaintiffs are entitled to have their claim
examined by the court. If they fail to establish their claim, they will
be out of the court. However, if they succeed in establishing the
claim they will be entitled to the declaration sought. They cannot be
non suited at the threshold unless the suit is expressly barred by any
statute. We have seen the provision of Section 50 of the Bombay
Public Trusts Act relied upon by the appellants-defendants. The said
section does not cover a suit of the present type. Analogy has been
drawn of Section 92 of the Code of Civil Procedure while
considering Section 50 of Bombay Public Trusts Act. Both
provisions are in the nature of representative suits which pertain to
public trusts and protection of public interest in the trusts. In the
present case, there is no public interest involved. The only interest
is that of the plaintiffs and their families. The right of archakship is
claimed on the basis of inheritance. It is a hereditary personal right
which they want to establish. The right is purely of a private nature.
We are of the view that Section 50 of the Bombay Public Trusts Act
is not attracted at all in the facts of the present case.
14. We have seen the object of the Bombay Public Trusts Act.
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Appropriately the Act seeks to regulate and make better provision
for administration of public religious and charitable trusts. Such
trusts cater to things of public interest, i.e .things which concern
large sections of public. Unless such trusts are properly
administered public interest will suffer. Therefore, matters affecting
administration of such trusts are covered under Section 50 of the
Bombay Public Trusts Act. This situation is somewhat similar to
suits under Section 92 of the Code of Civil Procedure. These suits
are suits in representative capacity and pertain to matters of public
interest. In contrast the suit which has given rise to the present
appeal is a suit to establish an individual right. The plaintiffs claim
that they are hereditary archaks of the temple since time
immemorial and are entitled to exercise this right which cannot be
taken away from them. No public interest is involved. Public is not
concerned whether A acts as an archak or B acts. Such a suit,
therefore, cannot be covered by Section 50 of the Act. Law is settled
on this aspect as per various judgments of this Court.”
It is rightly pointed out by the learned counsel Mr.
Deshmukh for the respondent No. 1 that bar U/Sec. 51 of the Act
is not attracted.
17. Impugned order cannot be castigated just because
judgment of the Hon’ble Supreme Court in the matter of
Sheshammal Vs. State of Tamil Nadu (supra), judgment of the
Karnataka High Court in the matter of Sri Ramchandra and others Vs.
Sri Shivram and others
(supra) and judgment of the learned Single
Judge of the Madras High Court in the matter of A. Rajendran
Vs. The Joint Commissioner, Hindu Religious and
Charitable Endowment Department, Coimbatore District
(supra) are not referred. The judgment of the Hon’ble Apex
Court is of binding precedent under Article 141 of the
Constitution of India, but that does not mean that the Trial
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Court is precluded from examining as to whether the judgment is
applicable or not considering facts, the stage of the proceeding
and the issue involved in the case.
18. The judgment of the Supreme Court in the matter of
Sheshammal Vs. State of Tamil Nadu (supra) is in context of Tamil
Nadu Religions and Charitable Endowments Act. The judgment
of the learned Single Judge of the Madras High Court in the
matter of A. Rajendran Vs. The Joint Commissioner, Hindu
Religious and Charitable Endowment Department,
Coimbatore District (supra) is in respect of framing of a
scheme for administration of the trust. The judgment of the
learned Single Judge of this Court in the matter of Balkrishna
Pandharinath Badve and others Vs. The State of
Maharashtra and others (supra) is in respect of the
Pandhapur Temples Act, 1973. The principles laid down therein
in all above judgments are no doubt binding on the Trial Court
provided that those are applicable and pertaining to the powers
of the Civil Court U/O VII Rule 11 of the C. P. C.
19. The observations in para No. 5 of the impugned order show
that after considering the judgments cited, the learned Judge
preferred not to rely upon the same. For deciding interlocutory
application, if multiple judgments are cited which are extraneous
for the issue germane at that stage of the proceeding, the
Presiding Officer cannot be blamed for judicial indiscipline. I do
not find that the Trial Court is guilty of any intentional overt act
12 cra 146.25
or indiscipline.
20. Mr. Waramaa, learned counsel for the applicants also
relied on the judgment of the Supreme Court in the matter of
Himalaya Vintrade Private Limited Vs. Md. Zahid and another reported in
(2022) 13 SCC 649 . In the cited case, the Supreme Court allowed
application U/O VII Rule 11 of the C. P. C. The plaintiff in that
case was caretaker/servant and claimed to have acquired interest
on the basis of longstanding permission. His plea of adverse
possession is recorded to be without material particulars. The
facts of the case at hand are distinguishable. This judgment is
not helpful to the applicants.
21. I have gone through the application Exhibit 95, which does
not spell out that plaint is liable to be rejected for want of cause
of action. Plain reading of the plaint shall make it clear that the
cause of action has been spelt out specifically in paragraph Nos.
8, 9 and 10. Further submissions attacking the cause of action,
can be dealt with during the course of trial. Application Exhibit
95 does not disclose any provision excluding the jurisdiction of
the Civil Court expressly or impliedly. Whatever the objections
are raised in it, are the disputed questions of facts, which would
require objective scrutiny during the course of trial. Learned
counsel Mr. Aditya Deshmukh has rightly made submissions in
this regard.
22. Trial Court is justified in holding that the provisions of Sec.
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14 of the Specific Relief Act and Sec. 23 of the Contract Act are
not applicable and no provision excluding the jurisdiction of the
Civil Court from the Constitution of India is disclosed.
23. In the present matter, pleading in the plaint refers to
easementary right. The plaint needs to be read in its entirety. It
would be matter of scrutiny after leading evidence as to whether
a right of plaintiff can be said to be easementary. The tenor
shows that what is being asserted is a hereditary right. I am
unable to accept submission that plaint is liable to be rejected for
such pleadings.
24. I find that there is no merit in the revision. The civil
revision application is rejected.
[ SHAILESH P. BRAHME J. ]
bsb/Aug. 25