Skip to content


Kesrimal Vs. Ugam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 179/78 and 345/81
Judge
Reported in1983WLN(UC)201
AppellantKesrimal;ugam Singh and ors.
RespondentUgam Singh and ors.;kesrimal
DispositionPetition dismissed
Cases ReferredY. Lakshmaiah v. Esco Easstern Inc.
Excerpt:
.....be against the tenets of the digamber smpradaya. in the circumstances it cannot be said that the civil judge has committed any error in holding that offering of 'kesar' to the idol does not amount to disobedience of the decree.;(b) civil procedure code - order 21 rule 32--execution of decree--placing of small brass idol near main idol--decree holders right to worship main idol not interfered and their religious feelings not injured--held, it does not call for interference in revision.;the placing of the said idol did not in any way interfere with the right of the plaintiff decree holders to worship the main idol and it cannot be held that the presence of the said idol injures the religious feelings of the plaintiff decree holders. .;in my opinion it does not call for interference in..........filed a representative suit on behalf of the members of the digamber sampradaya in the court of civil judge, bhilwara against ugma singh, nathulal, mishrilal and kistoor chand (non-petitioners nos. 1-4 in s.b. civil revision petition no. 179/1979) here in after referred to as the defendant judgment debtors belonging to the swetamber sampradaya. in the said suit the plaintiff decree holders prayed for a declaration that they have been carrying on and and are entitled to carry on the darshan, prakshal and poojan etc. according to the tenets observed by the digamber jain sect without interference from any body and also prayed that the defendants be restrained by means of a permanent injunction from erecting the 'dhwaja dand' and putting up the 'kalash' and enclosing the idols by putting.....
Judgment:

S.C. Agrawal, J.

1. Both these revision petitions are directed against the order dated 19.1.1978 passed by the Civil Judge, Bhilwara in original execution case No. 82/73.

2. The facts, briefly stated, are as under. In village Paroli in District Bhilwara there is a temple known as the temple of Shree Adeshwarji and the idol of Shree Adeshwarji the first Jain Tirthankar, is in the said temple. A dispute arose between the members belonging to the Digamber sect of the Jain religion and the members belonging to the Swetamber sect of the said religion with regard to the right to worship in the said temple. On 1st June, 1954, Shri Kesrimal (petitioner in S.B.Civil revision petition No. 179/1978) and Kistoor Chand, Dharam Chand, Bhuralal, Maganlal, Gundalal Gu!ab Chand and Pyar Chand, non-petitioners Nos.5-12 in S.B.Civil Revision petition No. 179/78 here in after referred to as the 'plaintiff decree holders,' belonging to the Digamber Jain sect, filed a representative suit on behalf of the members of the Digamber Sampradaya in the court of Civil Judge, Bhilwara against Ugma Singh, Nathulal, Mishrilal and Kistoor Chand (non-petitioners Nos. 1-4 in S.B. Civil Revision Petition No. 179/1979) here in after referred to as the defendant judgment debtors belonging to the Swetamber Sampradaya. In the said suit the plaintiff decree holders prayed for a declaration that they have been carrying on and and are entitled to carry on the Darshan, Prakshal and Poojan etc. according to the tenets observed by the Digamber Jain sect without interference from any body and also prayed that the defendants be restrained by means of a permanent injunction from erecting the 'Dhwaja Dand' and putting up the 'Kalash' and enclosing the idols by putting doors and locks or any other manner and interfering with or altering the nature, shape and appearance of the idols installed in the temple and in any other manner directly or indirectly doing any act or thing which may have the effect of wounding the religious feelings and sentiments of the followers of the Digamber Jain sect and interfere with the free and unfettered exercise of plaintiffs' rights for affording Darshan, Prakshal and Poojan and other rites according to Digamber Jain tenets of religion. The said suit was decreed by the Civil Judge, Bhilwara by his judgment and decree dated 5th June, 1957. The Civil Judge passed a decree in the following terms:

fMdzh bLrdjkfj;k cgd eqnb;ku cgSfl;r uqekbZUnku nhxLcj tSu lEiznk; cf[kYkkQ eqn~njkykge cgSfl;r vly uqekbUnxku 'osrkEcj tSu lEiznk; bl vej fd lfnj gS fd gLrdkj bl vej dk fd;k tkrk gS Afd eqn~nb;ku ;kfu nhxEcj lEiznk; tkos Jh vkns'ojukFk th ds efUnj o fdpkjkSyh dh iwtk Ik{kikr o izn'kZu viuh viuh lEiznk; ds mlwy ds eqrkfcd djrs jgs gS vkSj vkbUnk djus ds etkt gSA gqDe bErsukbZnckeh cjf[kykQ eqn~nk;yge cgSfl;r eln o uqekbUnxku 'osrkEcj tSu lEiznk; bl vej dk lkfnj gksos eqn~nk;ykge Jh vkns'kojukFk th dh ewfrZ ds us= HkqtcUn o eqdqV oxSjk yxk dj ewfrZ dh ekStqnk 'kDy o lwjr es dksbZ rCnhyh u djs vkSj efUnj eqruktk ij /otknUM o dy'k u yxkos vkSj efUnj ds fdokM+h ij rkyk u yxkus vkSj nhxEcj lEiznk; ds yksxks dks n'kZu iwtk iz{kky nhxEcj /keZ ds vuqlkj djus ls u jksds [kpkZ eqn~n;bku cftEek eqn~nk;yge vk;n gh lhy ckn rdehy crjrh o nkf[ky nQrj gks A rkjh[k % 5&6&57

3. On appeal, the District Judge, Bhilwara dismissed the suit on the ground that no question of any right to property or office was involved. This Courts on second appeal, set aside the aforesaid judgment and decree passed by the District Judge Bhilwara and held that the allegations in the plaint related to an assertion of a right to worship and an interference with that right and that a dispute of civil nature arose which is clearly cognizable by a Civil Court. The High Court, therefore, remanded the case to the District Judge, Bhilwara, for determining the appeal on merits. After remand the District Judge, Bhilwara, affirmed the judgment and decree of the Civil Judge but that part of the decree whereby the defendants were restrained from putting the temple under lock and key was not affirmed. The decree was also modified in the sense that the parties were required to come to an agreement, within a period of two months of the decree, according to which one hour daily was to be exclusively reserved for the worship of the idol by the plaintiff decree holders and it was directed that it shall be the duty of the defendants to see that there was no interference of any kind in the right of worship by the plaintiffs during that hour and that the door of the temple is arranged to be kept open atleast during that hour. The District Judge also directed that if the parties do not come to any agreement within the period of two months referred to above, then that hour shall be from 8.30 A.M. to 9.30 A.M. daily. On second appeal, this Court directed that the plaintiffs should be allowed to worship between the hours of 6 to 9every morning and that the temple should not be locked during these hours. The High Court also clarified that if the Swetambaries wanted to worship the deity during this period without disturbing the Digamberies, they would be allowed to do so and likewise in any hour it would be open to the Digamberies to go and worship the idol. As regards the fixing of the doors, this Court directed that it was not an unreasonable step but the doors shall be kept open between the hours 6 to 9 every morning enabling the Digamberies to exercise their right to worship. An appeal was also filed before the Supreme Court against the aforesaid judgment and decree of this Court and the Supreme Court affirmed the decree of this Court in its judgment dated 26th November 1970 in Ugamsingh v. Kesrimal, reported in : [1971]2SCR836 ,

4. On 17th October, 1973 the plaintiff decree holders filed the execution petition Under Order 21 Rule 32 CPC for execution of the decree. In the said execution petition the plaintiff decree holders submitted that the defendant judgment debtors wete not permitting the plaintiff decree holders and the members of the Digamber Jain Sampradaya to perform Poojan, Prakshal and Darshan of the idol and were not obeying the decree and were not keeping the doors of the temple open and further that they were offering 'Kasar' (saffron) to the idol in disregard of the decree and there by they are causing injury to the religious feelings of the persons belonging to Digamber Jain sect. In the said execution petition it was further submitted that the defendant judgment debtors have placed a small brass Swetambari idol 3' size near the main idol in the temple and this was causing injury to the religious feelings of the decree holders and persons belonging to the Digamber Jain sect and that as a result of the placing of the small idol the decree holders were prevented from performing the pooja of the main idol. The decree holders also submitted that the judgment debtors have placed 'Kalash, and 'Dhwaja Dand' on the temple. The decree holders, therefore, prayed that the decree be executed by attachment and sale of the property of the judgment debtors any also by removal of the small brass idol of Swetambari sect and the 'Kalash' and the 'Dhwaja Dand'. The judgment debtors filed a reply to the execution petition wherein they denied that the temple was not being kept open and was locked. The judgment debtors also submitted that in the decree there is no prohibition against offering of 'kesar' to the idol and that 'kesar' was being offered to the idol earlier also. As regards the small Swetambari idol it was submitted on behalf of the judgment debtors that the said idol was there prior to the filing of the suit and that it was not placed during the pendency of the suit or after the passing of the decree. With regard to the placing of the 'Dhwaja Dand' and 'kalash' it was stated that after the suit was dismissed by the District Judge, Bhilwara and during the pendency of the second appeal before this Court, this Court had passed an order dated 7th April, 1958 restraining the judgment debtors from placing the 'Kalash' and 'Dhwaja Dand' but the said order dated 7th April, 1958 was modified by this Court on 7th August, 1958 and the injunction whereby the judgment debtors were restrained from putting 'Kalash' and 'Dhawajadand' pending the disposal of the appeal was discharged and that after the passing of the said order dated 7th August, 1958 the debtors had placed the 'Kalash' and the 'Dhwajadand'. The judgment jedgments debtors further submitted that since no decree for mandatory injunction for removal oft he 'Kalash' and 'Dhwaja Dand' has been passed, no direction for removal of 'Kalash' and 'Dhwaja Dand' could be given.

5. The Civil Judge, Bhilwara by his order dated 19th January, 1978 directed that a warrant be issued for the removal of 'Dhwaja Dand' and 'Kalash' . The Civil Judge, however, rejected the execution application in so far as it related to restraining the defendant judgment debtors from offering 'Kesar' to the idol or for the removal of the small brass idol placed near the main idol. Being aggrieved by the aforesaid order passed by the Civil Judge both the parties were filed revision petitions before this Court. S.B. Civil revision No. 179/78 has been filed by Shri Kesrimal, one of the plaintiff decree holders, and Civil revision No. 345/81 has been filed by Shri Ugamsingh, Nathulal and Mishrilal, the defendant judgment debtors.

6. I have heard Shri P.C. Mathur, the learned Counsel for the plaintiff decree holders and Shri D.S. Shishodia, the learned Counsel for the defendant judgment debtors.

7. In S.B. Civil revision petition No. 179/1978 filed by the plaintiff decree holders, Shri P.C. Mathur has confined his submissions to two points viz. , (1) the offering of 'Kesar' to the idol and (2) placing of small brass Swetambari idol near the main idol. With regard to the offering of 'kesar' to the idol the submission of Shri Mathar was that the main idol that is installed in the temple has been found to be Digambari idol and that the plaintiff decree holders and the members of the Digambari Sampradaya have been held entitled to worship the idol according to their tenets. Shri Mathur has submitted that offering of 'Kesar' to the idol is not permissible under the tenets of Digambari Sampradaya and the defendant judgment debtors by offering 'Kesar' to the idol are there by disobeying the decree. Shri D.S. Shishodia, the learned Counsel for the defendant judgment debtors, on the other hand has submitted that the question as to whether it was permissible to offer 'Kesar' to the idol was cot agitated by the plaintiff decee holders in the suit and there is no direction in the decree prohibiting offering of 'Kesar' and, therefore, the defendant judgment debtors have not, in any way, disobeyed the decree. In this connection Shri Shishodia has also placed reliance on the statement of Shri Kesrimal, as PW 8 in the trial court where in he has stated that the persons belonging to the Swetambari sect worship the idol in accordance with the tenets of their sect and that the persons belonging to Digambri sect also offer 'Kesar'.

8. I have perused the pleadings of the original suit and I find that in the suit the question as to whether offering Kesar' to the idol was against the tenets of the Digamber Jain sect was not agitated by the plaintiff decree holders and the decree passed by the trial court, as affirmed by the higher courts does not contain any express direction prohibiting the offering of 'Kesar' to the idol. Shri P.C. Mathur does not dispute this position. He seeks to infer such a direction by reading the decree in the light of the judgment of the Supreme Court in Ugam Singh v. Kesrimal (supra). In Ugam Singh v. Kesrimal (supra) the Supreme Court held that having regard to the concurrent findings of the courts below that the idol was 'Nrakar' (naked) and that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digambaries. In the said case the Supreme Court have also held that while the Digambaries will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetambaries would worship a Digambari idol without these and hence the right to worship a Digambari idol by both the sects is possible and indeed has been so held by all the Courts. In view of the aforesaid judgment of the Supreme Court, the question which arises for consideration whether offering of 'Kesar' to the idol results in the denominational change in the decree. On the basis of the record of the present case it is not possible to hold that the offering of 'Kesar' to the idol results in the denominational change in the decree. Kesrimal, one of the plaintiff decree holders, has himself admitted in histatement as PW 8 in the trial court, that he and the Digambaries were offers ing 'Kesar' to the idol. The aforesaid statement of Kesrimal also finds support from (Ex. 1), the decision of the 'Panchas' wherein it is stated that Digambaries have a right to perform Pooja by offering 'Kesar tiki' to the idol. This shows that the Digambaries have also been offering 'Kesar' to the idol and the offering of 'Kesar' to the idol cannot be said to be against the tenets of the Digamber Sampradaya. In the circumstances it cannot be said that the Civil Judge has committed any error in holding that offering of 'Kesar' to the idol does not amount to disobedience of the decree.

9. With regard to the placing of the small brass Swetambari idol near the main idol the Civil Judge has observed that it was difficult to determine whether the said idol had been placed during the pendency of the suit or after passing the decree. The Civil Judge has, however held that the placing of the said idol did not in any way interfere with the right of the plaintiff decree holders to worship the main idol and it cannot be held that the presence of the said idol injuries the religious feelings of the plaintiff decree holders. Shri Mathur has been unable to show any infirmity in the aforesaid order passed by the Civil Judge and in my opinion it does not call for interference in revision. Thus in so far as SB Civil revision No. 1 '9/78 is concerned, I find no ground for interference in revision with the order passed by the Civil Judge, Bhilwara.

10. I may now come to SB Civil Revision No. 345/81 filed by the 1 defendant judgment debtors. Shri D.S. Shishodia, the learned Counsel for the defendant judgment debtors, has submitted that the Civil Judge has erred in passing an order for removal of the 'Dhwajadand' and 'Kalash'. In this regard the submission of Shri Shishodia was that the aforesaid 'Dhwajadand' and 'Kalash' were placed by the defendant judgment debtors after the order dated 7th August, 1958 had been passed by this Court and that by order dated 7th August 1958 the interim order dated 7th April, 1958 was modified in so far as it related to the placing of 'Kalash' and 'Dhwaja Dand' on temple. Shri Shishodia has submitted that after the passing of the said order dated 7th August, 1958 by this Court there was no prohibition against the installation of the 'Dhwajadand' and the 'Kalash' on the temple and, therefore, the action of the defendant judgment deblors in installing the 'Kalash' and 'Dhwajadand' cannot be said to be in disobedierce of the decree. According to Shri Shishodia, the plaintiff decree holders ought to have amended their suit so as to seek a mandatory injunction for removal of the 'Dhwajadand' and 'Kalash' and since this was not done and only a decree for prohibitory injunction has been passed in their favour, the order passed by the Civil Judge directing the removal of the 'Kalash' and 'Dhwajadand' is without jurisdiction. In this regard Shri Shishodia has referred to the provisions of Order 21 Rule 32 CPC and has submitted that with regard to a decree for prohibitory injuction the only mode of execution is that laid down in Sub-rule (1) i.e. by attachment of property of the judgment debtor or by his detention in prison and that provision of Sub-rule (5) of Order 21 Rule 32, which empowers the executing court to direct the performance of a particular act, is applicable only in cases where mandatory injunction has been passed and the judgment debtor disobeyed the mandatory injunction. In support of the aforesaid submission Shri Shishodia has placed reliance on the decision of the Andhra Pradesh High Court in Y. Lakshmaiah v. Esco Easstern Inc.'MR 1974 AP 32. Shri P.C. Mathur, the learned Counsel for the plaintiff decree holders, on the other hand has submitted that the 'Dhwajadand' and the 'Kalash' were admittedly installed on the temple, after the passing of the decree dated 5th June 1957 by Civil Judge, Bhilwara, whereby the defendant judgment debtors were prohibited from placing the 'Dhwajadand' and the 'Kalash' on the temple and since the 'Dhawajadand' and the 'Kalash' were placed after the passing of the decree the executing court was competent to direct the removal of the 'Dhawjadand' and the 'Kalash'. In my opinion it is not necessary to examine the question as to whether the executing court was competent to direct the removal of the 'Dhwajadand' and the 'Kalasr' while executing the decree for prohibitory injuction because the 'Dhwajadand' and 'Kalash' were placed by the defendant judgment debtors on their own risk with the full knowledge that they were prohibited from doing so under the decree of the Civil Judge, Bhilwara and that the said decree may be restored and in the facts and circumstances of the present case, the direction given by the executing court appears to be patently a just direction and it cannot be said to have resulted in failure of justice so as to justify interference by this Court in revision. In my view, therefore, therefore, this is not a fit case for interference with the aforesaid direction given by the executing court.

11. In the result, both the revision petitions are dismissed. But taking into consideration the facts and circumstances of the case the parties are left to bear their own costs in both the revision petitions.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //