1. The two revisions were heard together & this order will govern them. Both of them are directed against the orders of the Cts. below visiting the petnrs with some punishment for having disobeyed an order of injunction passed by the Ct under Order 39, Rule 2, C. P. C. & against the consequential order of directing the defts. to restore possession of the subject matter of dispute back to the pltf. which had been taken in violation of his order of prohibition in the order of temporary injunction.
2. It is fundamental that nobody shall be proceeded against in contempt except for wilful violation of a Ct's order - be it a prohibitory or stay or injunction order - as the case may be. The circumstances of this case have to be set out in order to examine the question whether the petnrs were guilty of wilful violation. The circumstances are: (i) The opposite party, who was a trustee of Khirachora Gopinath Jiu Temple at Remuna, & the endowment thereof, was dismissed by the Hindu Religious Endowment Comr on his finding that the endowment was a public one. He appointed the petnrs, as trustees, in exercise of his powers under the Hindu Religious Endowments Act. As provided in the Act, the aggrieved person, namely, the outgoing trustee, brought a civil suit, in which these civil revisions arise, for having it declared that the temple & endowment were private of which he was the hereditary trustee & that the Hindu Religious Endowments Comr's order declaring the same as public was wrong & was liable to be set aside, (ii) The Hindu Religious Endowments Comr was not impleaded as a party-deft to the suit at the beginning. While the suit was proceeding as between the newly appointed trustees & the outgoing trustee, the latter moved the Ct to restrain, by an order of injunction, the newly appointed trustees, namely, the defts, from interfering with his possession & management of the endowment & performance of sebapuja. The learned trial Ct issued a preliminary order of injunction calling upon the defts to show cause why the preliminary order should not be made absolute. Along with that, an interim order of injunction was passed. Service of notice accompanied the interim order of injunction. The defts put in an objection against the order being made absolute. This objection was never attended, to by the trial Ct nor was the order ever made absolute. On some date, fixed for hearing, the defts defaulted & the Ct passed an ex parte decree. The scope & effect of the ex parte decree was to set aside the Hindu Religious Endowments Comr's order declaring the temple & endowment to be public, & to grant perpetual injunction, against the trustees,, from interfering with the pltf's management of the endowment, & performance of sebapuja. Necessarily, with the passing of this ex parte decree, the interim order of injunction become exhausted. It was, however, replaced by the order of perpetual injunction incorporated as a part of the decree. The defts, however, are not charged with having violated the said perpetual injunction order, but they later filed an appln for setting aside the ex parte decree. Eventually, the decree was set aside, & the suit was restored to its file. It appears from the defts' appln to the Hindu Religious Endowments Comr, under amended Schedule 9 of the Act, that they were genuinely under the belief that they were not, at the moment, bound by any order of injunction. They made out this point in the following manner, namely, that the interim order of injunction came to an end either with their filing objection against that order which was never adjudicated upon, or, at any rate, on the disposal of the suit by the ex parte decree. At any rate, the latter position is an obvious one, & cannot be taken exception to. This ex parte decree having been set aside, the quesftion arises whether the interim order of injunction was revived. There is nothing in the order setting aside the ex parte decree nor is there any other order incorporated in the order-sheet to show that the Ct meant to revive the pending proceedings in the matter of Injunction as well. Without such an express order & without determining whether cancellation of ex parte decree automatically revives the pending proceedings of an injunction, it is clear that the defts 'could be held justified to be under a genuine belief that they were not under the restraint of any order of injunction. In such a state of things, if they took possession of the disputed property appertaining to the endowment, they cannot be said to have been guilty of wilful violation of an order of injunction of the Ct prohibiting them from either taking over possession or otherwise interfering with the pltf's possession.
3. I quite appreciate the view taken by the Cts below that the prerogative right of prohibiting a party from committing violation of its primary & prohibitive order should not be lightly interfered with, though that order may seem to be technically unsound. The spirit behind the order is fully appreciated by this Ct. Reversal of their order should not lend support to any theory that the Ct could not be rightly advised upon strict enforcement of its order of prohibition or restraint whenever such an order is called for in the exigencies of a particular case. Any other view shall lead to disturbance of peace & good order in the society. In the special circumstances, however, in this case as already stated, I would set aside the order punishing the petnrs for violation & contempt of Ct.
4. In the course of the argument, our attention was invited to sub-s (3) of Schedule 9 of the Act, & it was contended that even if there is wilful violation of an order of injunction, passed, in such circumstances, as prevail in this case, Sub-section (3) gives the party complete immunity from any sort of legal proceedings which would include a proceeding consequent upon violation of the Ct's order of injunction prohibiting them from doing anything which the statute entitled them to do under the authority of the Hindu Religious Endowments Comr. in their capacity as public servants within the meaning of sub-s (4), provided that is done in. good faith. This opens a question of some significance. An argument against this contention may take the shape that the legal proceeding is not for having taken possession but for breach of the Ct's order which supervened. What was meant by sub-s (3) referred to such, acts or offences that would ensue directly & solely from the act of taking possession. It would save the man from committing criminal trespass & from being liable to damages for having taken possession of the property & so on & so forth. In view of the importance of the question, it is difficult for me, as at present advised, to come to any definite decision. The solution swings between two extremes - on one side the paramountcy of the law incorporated in statute has to be maintained, & on the other side, the sovereignty of the Ct & its order have also to be respected. As it does not strictly arise in this case, in view of its having been successfully disposed of on the point, already considered, I should not express any opinion.
5. It would be proper to leave a word of caution for the guidance of the civil Ct. Such matters will ever & anon arise as the Hindu Religious Endowments Comr's order declaring a temple to be a public, dismissing an old trustees, and appointing a new one, in his place, or directing delivery or taking up of possession under Schedule 9 will often come for invasion in a civil Ct. The civil Ct, having jurisdiction over the matter, shall be deemed to have right to maintain 'status quo ante' in relation to the subject-matter of dispute & restrain continuing injuries to any one or the other of the parties in litigation. A case may arise in which the Hindu Religious Endowments Comr. impleaded as a deft, may be restrained, or, in other words, may be asked to stay his hands under Schedule 9 of the Act. It may also happen that he may either directly or through his agents refuse to obey. A question of conflict of jurisdiction should naturally arise. If the civil Cts are fully aware of their responsibilities, the occasion for such an eventuality could be avoided. The civil Ct, when asked to issue an order of injunction to restrain the hands of the deft, whosoever he may be, has always to consider the balance of convenience within which is included consideration of matters of public policy. Whenever the Civil Ct should find that some statutory authority is acting within the limits of the powers conferred upon him by law, as a matter of balance of convenience, he should generally consider it to be in favour of the said authority & his agents. Rare cases, however, may arise in which such authorities may be acting mala fide and in abuse of their powers. In such a case, I can pronounce, without hesitation, that the hands of the Civil Ct are long enough to restrain them, although wise regulation of powers, with reference to the public policy & the balance of convenience, would reduce the happening of such conflicting jurisdictions to a nullity.
6. I shall now address myself to the advisibility of acceding to Mr. Dasgupta's contention that the question of punishment apart, possession taken wrongfully should not be maintained. What he contends is this that in deference to the Ct's authority & dignity, even notional possession shall be delivered to him, which may later be placed in the hands of a receiver or be disposed of in any manner conformable to the interest of the endowment. But this contention, however, overlooks the question whether this taking of possession is unlawful. Section 59 stares the contention in the face. Besides, we have no reason to presume that the defts are either trespassers or are guilty of malfeasance or misfeasance within the knowledge of the Hindu Religious Endowments Comr. Their actions are within the supervising authority of the Hindu Religious Endowments Comr. We should, therefore, set aside the order of the Cts below directing that the possession shall be restored back to the pltf; but door must be left open to the pltf to apply to the Ct for appointment of a receiver or to take such other appropriate steps in case the defts are found to be interfering unduly with the property rights of the endowment & committing acts of waste in abuse of their powers. In this matter the Hindu Religious Endowments Comr shall be given an opportunity to be heard & his view should be given every deference in arriving at a certain arrangement.
7. In the result, the civil revisions are allowed. Each party should bear his own costs throughout.
8. I agree with my Lord, the Chief Justice that the two petns should be allowed.
9. In C. R. No. 52 of 1950 the only point for decision is whether the punishment of the petnrs for having violated an order of injunction issued by the lower Ct was justifiable. In my opinion sub-s (3) of Schedule 9, Orissa Hindu Religious Endowments Act as amended by Orissa Act, 1947 is a complete answer to such a charge. The petnrs merely obeyed the order of the Endowments Comr dispossessing the opposite party & putting the petnrs in possession of the temple & its properties in exercise of the extraordinary powers conferred on the Endowments Comr by the amending Act, 1947 (Orissa Act XXXI (31) of 1947). Mr. Dasgupta however contended that Orissa Act XXXI (31) of 1947 cannot affect an order of injunction issued prior to the coming into force of that Act as in the present case. But so far as I could see there is nothing in Orissa Act XXXI (31) of 1947 to indicate that from the date of the commencement of that Act the Comr has no power to put into possession a newly appointed trustee even though there might have been an order of injunction issued against him by a civil Ct prior to the commencement of that Act. The Legislature deliberately conferred drastic powers on the Comr by the amending Act of 1947 & empowered him to put a newly appointed trustee in possession by using even force if necessary. Prior to 1947 the power to put a new trustee in possession remained with the civil Ct under the old Schedule 9, Orissa Hindu Religious Endowments Act. When the Legislature in 1947 deliberately transferred that power from the civil Ct to the Endowments Comr himself with a view to secure effective compliance with his own order it is difficult to understand how any previous order of injunction that might have been issued against any party by a civil Ct could in any way affect the statutory powers conferred on the Endowments Comr by the amending Act or else how the protection conferred by sub-s (3) of Schedule 9 (as amended) of the O. H. R. E. Act to a person acting under the instructions of the Endowments Comr can be in any way whittled down. The main purpose for which the amending Act was made by the Legislature cannot be rendered infructuous by any such limited construction.
10. Doubtless if it could be held that the petnrs did not act in good faith they cannot claim the protection of sub-s (3) of Schedule 9, O. H. R. E. Act. The expression 'good faith has been defined in Schedule (17), Orissa General Clauses Act, 1937 as follows:
'a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not.'
This definition is an important departure from the definition of the same expression occurring in Schedule 2, Penal Code where
'Nothing is said to be done or believed in 'good faith' which is done or believed without due care & attention.'
Thus though for the purpose of the Penal Code where an act is done negligently even though it may be done honestly, a plea of good faith may not stand, for the purpose of the O. H. R. E. Act, however, so long as the impugned act is done honestly, even negligence on the part of the doer will nevertheless indicate good faith on his part. In the present case there is no finding by either of the two Cts to the effect that the action of the petnrs was not done in good faith. Consequently I would hold that proceedings for disobedience of an injunction order cannot be started against them in view of the statutory protection given to them by Sub-section (3) of Schedule 9, O. H. R. E. Act as amended.
11. In C. R. 51 of 1950 the question for decision is whether the order of the lower Ct restoring possession of the temple properties to the opposite party can be sustained. I must say that an order of that nature would frustrate the object for which Schedule 9 was amended toy Orissa Act XXXI (31) of 1947. That section as amended requires the ex-trustee to give up possession to the new trustee under the orders of the Endowments Comr & then seek his redress by institution of a suit in the usual way. Whether in such a suit the Ct will have power to appoint a Receiver & thereby dispossess the new trustee who has been actually Suit in possession of the temple properties by the Endowments Comr under Schedule 9 is a question on which it is unnecessary to express any opinion at present. It is sufficient to note that in the present case where there is no application for appointment of a Receiver or any finding that the new trustees (the petnrs) are mismanaging the temple properties, the order of the lower Ct directing them to give up possession to the previous trustee (the opposite party) was clearly wrong.