Ad-interim ex parte injunction granted to plaintiff preventing interference with performance of duties and functions as Chara Charajangama Pattadhikari and Uttaradhikari to the office of Matadhipathi of Sri Siddaganga Mutt, being vacated after hearing both sides; in Appeal:
Held:
(i) Grant of ad-interim injunction has to course through the following slots: (i) prima facie case; (ii) balance of convenience; (iii) irreparable injury to - the plaintiff, and (iv) lastly, all injunctions- being absolutely discretionary in nature whether there was any overriding consideration that supported the refusal of the injunction by the Court-below.
(ii) The existence of a prima facie casein the matter of granting injunction is reallythe harbinger or the all clear sign to go aheadin investigating other aspects of the questiongoverning the grant or refusal of injunction.If there was no prima facie case at all or thecase put forward was so weak and tainted havingvery little prospect of being accepted by theCourt, further questions of balance of convenience and irreparable loss need not be consideredsince the plaintiff would fall at the veryfirst stile itself. But if there was a primafacie case then other considerations governingthe grant of injunction would come into playand will also have to be evaluated beforegranting or refusing the injunction. In otherwords the existence of a prima facie case oreven a very strong prima facie case does notpermit leap-forging by the plaintiff directlyto an injunction without crossing the otherhurdles in between....Even granting that theplaintiff has an invincible prima facie case,he will not be entitled ex de betide justiciae,to the grant of an injunction, unmindful ofother consequences. If the consequences ofgranting an injunction are detrimental in naturethen an injunction will not be granted eventhough the plaintiff might have an unbeatableprima facie case.
ON FACTS:
(i) The plaintiff had made out a primafacie case and has certainly not come forwardwith any ambiatory plaint requiring no seriousconsideration at all.
(ii) From the galore of documents and pleadings that have been produced in the case, there is clear indication and it is also not denied that the relations between the Senior Pontiff and the Junior Pontiff has been greatly strained and badly soured....there is in fact a galore of documents indicating the plaintiff had of late been exhibiting a panache for supplanting the Senior and holding himself out as the Mathadhyaksha....Even the slightest prospect of an anarchical situation prevailing in the Mutt following the arming of the plaintiff with an injunction by Court should be sufficient reason to preclude its grant. There is also a clear possibility of the people at large becoming the victims of the power-play between the plaintiff and defendants. In such circumstances, prudence commend refusal of the injunction as a prudent course and discretion is better exercised by refusing the injunction sought for....expending of judicial authority for granting an injunction to the plaintiff just to enable him to make sporadic visits to the Mutt premises from his place of residence elsewhere therefore appears to be only a meaningless charade which does not really serve any useful purpose. He does not suffer any inconvenience by not visiting the Mutt nor does he stand to gain anything by his occasional visits under heavy escort. Therefore, the exercise of discretion in favour of the plaintiff would be clearly phyrric unattended by any tangible rewards either to the plaintiff or to anyone else. On the contrary these visits if done under the cover of the injunction might bring in some untoward results sofar as the defendants are concerned and can well be avoided by declining to grant the injunction as the plaintiff himself benefits very little. Therefore, it is after analysing the case of the plaintiff vis-a-vis the legal requirements enjoined for consideration by a Court, it becomes clear that plaintiff satisfies none of them.
(iii) The relief of injunction being a remedy in equity must be bestowed only on those whose reputation and hands are both spotlessly clean. If not anything else, at least this circumstance should override all other considerations.
Shyamsundar, J.
1. This Miscellaneous First Appeal preferred under Order 43 Rule 1(r) of the Code of Civil Procedure arises out of and is directed against an order made by the Prl. Civil Judge and C.J.M., Tumkur on I.A.No. 1 in O.S. 87/88 refusing to affirm an ad interim injunction granted to the plaintiff therein ensuring prevention of interference with the performance of the duties and functions by the plaintiff as Charajangama Pattadhlkari and Uttaradhikari to the office of Mathadhipathi of a religious Mutt called Sri Siddaganga Mutt in the outskirts of Tumkur City in the neighbouring district of Tumkur.
2. Upon the institution of the suit, the learned Judge had granted an ex parte injunction as aforesaid but after notice to the defendants who appeared and opposed the affirmation of the Injunction besides insisting upon vacating the same, the learned Judge hearing both sides vacated the injunction and hence this appeal in which at the stage of admission itself, I have had the benefit of hearing not merely the appellant but also respondents who had successfully prevailed upon the Court below to vacate the injunction. The respondents appeared in this Court on their own, took notice of the appeal and joined issue with the appellant at the initial stage. With both sides providing all the pleadings and records that would be necessary for the disposal of the appeal, the appeal itself was heard on its merits so as to facilitate its final disposal which I propose to make by this order for which purpose I have treated this appeal as admitted as a step-in-aid for its final disposal.
3. Although this appeal is but a mere proceeding arising, from an interlocutory order nonetheless differs a little from the mill-of-the-run cases that are dealt with and disposed off routinely by this Court. The difference to by mind lies in the fact that the troika of parties associated in this appeal are three celebrate monks and their bone of contention is an Honour is causa being a position of honour i.e., the right to succeed to the title of the Mathadhyaksha of the Institution along with which marches the position of a contingent heir in waiting to step-in at the appropriate time for being inducted as the head of the institution. The appellant herein, was until deposed by the order of the second defendant dated 31-3-1988 the duly appointed heir apparent to the Headship of the Mutt and was a person waiting in the wings to step into the shoes of the Head as and when the latter stood removed from the scene in the usual course and due to natural reasons upon his demise. He was appointed as Uttaradhikari and Ohara Charajangama Pattadhikari by defendant No. 2 Dr.(Sri) Shiva-kumara Swamy, an octogenarian monk, belonging to the Lingayat community presently the Head of the Sri Siddaganga Mutt known far and wide not only for its spiritual fame but also as a centre of great learning and education. I was told that at present the institution was responsible for running and supporting 70 educational institutions under its auspices among which was a full-fledged Engineering College offering a course leading to a Degree in Engineering. It is not denied that all this was made possible by the dynamism and initiative of the octogenarian monk who, as admitted facts indicate, gave up the world to become an ascetic when he was still an young man of 20 years age and later became the Head of the institution when his own Guru passed away in the year 1941 at which time this institution although boasting of a lineage dating back to the 11th century was still a fledgling in the comity of religious institutions having then under its wing four educational institutions but after defendant Sri Shivakumara Swamigalu took over as the head of the Mutt, by constant application, devotion and assiduous labour the Swami had built-up single-handedly a great conglomerate of educational institutions which today almost matched numerically the Swami's advancing years.
4. I have already mentioned that this appeal is by the plaintiff who is pitted against R1, a institution called Shri. Siddaganga Mutt which incidentally was the first defendant in the suit and R2 is the Senior Swami - head of the first respondent institution who incidentally is the second defendant in the suit. R3 who is currently the third defendant in the Court-below is a person appointed by R-2 to fill in the office which, according to the defendants, became vacant following the removal of the plaintiff from the position of Charajangama Pattadhlkari of the first-defendant institution. It is desirable to refer to the parties as plaintiff and defendants in the course of the order and it would also be convenient to refer to the appellant as 'Junior Pontiff' and to the second respondent as 'Senior Pontiff during the course of this order.
5. As pointed out earlier the uniqueness of this appeal consists not merely in the fact that it associates with it three celebrate monks who are concerned not with any office of profit but an office although temporal in nature otherwise carried with it no ostensible perquisites with which an office is generally associated unless it be for the Honours that are said to march with it. In fact a very strong argument is built by Sri Sundara-swamy appearing for the Senior Pontiff in this Court, contending that both in the suit and in the interlocutory application the plaintiff asks for an order for sustaining or to continue to glorify himself by associating the Honours that went with the position of a religious potentate and therefore the Court should not at all countenance this application, the granting of which served no useful purpose.
6. Be that as it may, It is somewhat odd that for a person who has renounced the world and abdicated its temporal pleasure the plaintiff should still grieve at the loss of his position as successor to the Mathadhyaksha after he became a persona non-designata following the adhesha issued by the second defendant.
7. Counsel for the appellant Sri Parthasarathy during the course of a very forceful argument sought to make out that the plaintiff was not just fighting for resuscitating lost Honours nor was he pining away recalling to his mind the accolades he commanded when he was the acknowledged Guru, but Counsel submits that the plaintiff is also interested in his dry-stick rights as one appointed to an office from which he now finds himself ousted arbitrarily by another who was in a superior hierarchy no doubt but totally blinded by prejudice and bias towards his client so that the decision to remove the plaintiff, reached and made by such a person was clearly void, otiose and invalid. Counsel says such an order is clearly non est and has necessarily to be ignored, an aspect which he commends very strongly for consideration. This argument Is refuted and very keenly too by learned Counsel Sri Sundaraswamy in tandem with Sri Nandeeshwar, Sri Veerabhadrappa and Mr. Shivappa appearing for the respondents, pointing out that not merely had the plaintiff lost the opportunity of becoming the supremo of the defendant-1 Institution In due course but he had also belittled the dignity and Image of the position to which he had been elevated by the Senior Pontiff in the fond hope that he would be a worthy successor to him. Counsel submits that over the years the period stretching to more than a decade, the Senior Pontiff was grieved to find the junior not making use of the opportunity afforded to him for becoming a highly adorned spiritual leader but Instead found him turning into a mercenary demagogue than a religious head and when he continued to act like a vandal bent on destroying the lofty and noble values for which the institution stood for and when all advice and attempts at correcting the junior had not merely failed but had resulted only In reverberating attempts by the junior at wresting the Senior's position even going to the extent of plotting against the Senior's life, the latter had then to act and remove the junior after issuing two show cause notices calling upon him to state why action to remove him should not be taken. It is then pointed out that only one of those two notices elicited a reply more marked for its impudence than offering any logical explanation but the other having remained quiescent without any reply, the Senior had therefore to act and eject the junior from office. Basing themselves on these divergent stands both sides argued their respective cases which probably to them was of some importance or may be of seminal importance but to my mind the arguments advanced were far beyond the scope of this appeal although they may be very relevant and pertinent to be raised and contested before the trial Court where the suit is still pending.
8. Although by way of a preface I have brought out the salient features of the controversy on hand, to put it however in the proper perspective it would be necessary to make further advertence to the factual back-drop to the present controversy. As mentioned earlier this indeed is a hapless litigation between three monks who had admittedly renounced the world so as to be free to pursue eternal rewards within the sublime claim of the world beyond. By hind-sight it appears to me the endeavour of the plaintiff in trying to joust with the second defendant who admittedly picked him up and put him into a position of honour from which he was later removed by the second defendant himself and has in turn resulted in the filing of the suit giving rise to this appeal is indeed most unfortunate. It appears and both sides agree that according to the tradition of the Mutt the head of the Mutt chooses and appoints at some point of time during his life time, one who will succeed him in the years to come after being carefully groomed and made proficient in Dharmic studies, rituals and methodology of performing worship to the presiding deity of the Mutt etc. Such was also the case in regard to defendant-2 who became the heir apparent of the then Senior Swami, in the year 1930 before succeeding him in the year 1941. It is not in dispute that defendant-2 was single handedly managing the institution which at the present head count runs and manages 70 educational institutions with a student strength of 4000 on its campus all of whom it Is said were fed free of cost by the Mutt throughout the year. Probably feeling the need to share the responsibility and to make room eventually for some one to succeed him, it was defendant No. 2 who sighted the plaintiff, an old alumnus of the Engineering College run by the Mutt, which he entered after completing his secondary education in other institutions of the very Mutt. The plaintiff soon after acquiring the Engineering Degree joined the ranks of the teachers in his old Alma Mater, before he was chosen by defendant No. 2 to succeed him. This transition of the plaintiff from a householder to a safforn robed monk took place in the year 1975 and I was told at a mammoth function organised at a cost of several lakhs of rupees the plaintiff was installed as Charajangama Pattadhikari and Uttaradhikari of the ruling Mathadhipathi, none other than the second defendant. It is mentioned that amongst the several thousands of people who attended the anointing ceremony there were many dignitaries of the State including the then Chief Minister and Governor etc. and that after the ceremony the plaintiff was taken in a procession on a palanquin along with the Senior so that the people at large could pay obeisance and offerings to him. On that occasion the record shows that the plaintiff had expressed his deep sense of gratitude to the Senior Pontiff on bestowing the cardinal distinction of becoming his successor and had said in the course of speech while replying probably to the felicitations showered on him as follows:
It is this man who had said that he was a child in the hands of the Guru to be led at his will, has now thrown the gauntlet at the Guru in a Court of taw. Be that as it may, It is common ground that in the next two years he was In close communion with the Senior Pontiff and was Initiated by him Into the ways and means of performing worship etc., and was subsequently also entrusted with small responsibilities like overseeing the massive feeding programme that went on in the Mutt day-in and day-out catering to the needs of the students and the devotees who flocked to the Mutt daily. I was told that nobody who came to the Mutt was turned away without being fed at the Mutt's expense and this Mutt, therefore, was famed for this kind of Dasoha (Kyakarya). The Senior had also desired the plaintiff to go to Senaras for acquiring proficiency in Sanskrit studies but the plaintiff never responded to these suggestions and instead elected to continue in the Mutt saying that he was content at getting all the training from the Senior. Nonetheless, tutors were appointed for coaching the plaintiff in Sanskrit, scriptures etc. and it transpired later that the plaintiff being not Interested in this kind of serious pursuits the teachers appointed for that purpose had perforce to leave. It also came to the notice of the Senior that the plaintiff was not taking seriously the responsibilities entrusted to him and was found to illiterate students who complained about non-availability of food etc. He had occasion to write to the plaintiff several letters and suffice it to refer to four such letters written on 1-9-1981, 26-9-81, 12-1-82 and 8-5-86.
In the later years it turned out the plaintiff was going about holding himself out as the President of the Mutt and was accepting all Honours due to that office and this practice appears to have continued despite the Senior's protestations. Things appear to have come to a head when in the presence of Senior Swamiji, the Junior allowed his followers to perform 'Lakshabilvarchane' to which Honour only the Head of the Mutt is said to be entitled to. All this appears to have brought about a serious rift between the two. Both of them began to suspect each other of making attempts at overthrowing one other and the Senior Pontiff even suspected foul play aimed against his life. Possibly these embittered feelings were fuelled by their own coterie of followers. The plaintiff also appears to have written a letter asking the local Superintendent of Police to give protection to him and to some of the persons referred to in the letter as members of his immediate entourage. In this state of affairs some of the well-wishers of the Mutt under the then Swamiji of Sutur Mutt of Mysore met to resolve the rift between them and in consequence a document was executed by the plaintiff stating that hence forward he would act and abide by the wishes of the Senior Swamiji. That document is dated 13-5-1986. But a day earlier the Senior Pontiff went to Bangalore and executed a Trust Deed regarding the properties of the Mutt constituting himself as sole trustee making it clear that the aforesaid step had to be taken because of the prejudicial activities of the junior pontiff. The plaintiff in a belated reaction issued a press note dated 14-3-1988 in which he decried the action of the Senior and vowed to take back all the properties of the Mutt if they were wrongly alienated. His statement in that behalf is as follows;
In another incident a catche of fire crackers caught fire in the Mutt both Mutt property being damaged and probably injuring some people creating an atmosphere of fear in the Mutt all of which led the Senior Pontiff to issue the two show cause notices one in the year 1987 and another in the year 1988 asking the junior to show cause why he should not be removed. The plaintiff sent a reply only to the first show cause notice but chose not to reply the second one. In his reply he denied all the allegations made against him and stated that they were all false and trumped up by people who were ill-disposed towards him and hinted that the Senior was lending his ears unjustly to those who were interested in vilifying and denigrating him. But when the second show cause notice remained unanswered the Swamiji went ahead formally deposed the plaintiff and installing in his place the third defendant as his successor and Charajangama Pattadhikari. In the second notice the plaintiff had been given three months time to choose a place of his own at Bangalore where he would elect to reside and that he would be paid a monthly pension of Rs. 3,000/- if he resided there peacefully and without any further demurrer against the authority of the Senior Pontiff. The plaintiff who never accepted these terms filed the suit in the Court-below at the end of the three month truce period and obtained an ad-Interim injunction against defendants 2 and 3 from allegedly interfering with his own position as the appointed successor and Charajangama Pattadhikari. That injunction which was later vacated by the Court has since given rise to this appeal.
9. The parameters under which the grant or refusal of an injunction admits of resolution being well known, only under those parameters even the instant case has to be decided and disposed off, although it may be that this appeal and the suit in the Court-below has aroused and generated a lot of Interest amongst the general public particularly amongst the Lingayat community to whom the first defendant Institution was a largely venerated sanctum of religion. But the fact that a large number of the laity following a particular faith are likely to be interested or may be perturbed or disturbed by the outcome either in the suit or in this appeal is not a factor that concerns the Court and nor should that circumstance persuade the Court to enlarge the scope of its inquiry if it was otherwise limited under law.
10. In these matters of injunctions it is trite that the grant or refusal thereof is discretionary but the discretion itself has to be exercised discreetly, with care and caution and not arbitrarily or capriciously. This Court in LIFE INSURANCE CORPORATION v. BANGALORE L.I.C. EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD : ILR1988KAR2817 . has laid down what factors should weigh with the Court either in making or refusing an order for injunction. Adverting to the care to be exercised the Court said:
'In a case where predicting of a possible result for the plaintiff being somewhat hazardous, it would be very necessary to tread with great caution the ground for granting temporary injunction.'
Apropos the norms to be adopted, the Court again said:
'But at the same time, in exercising its discretion the Court must totally circumspect and exercise extreme caution mindful of the fact either grant or refusal of the remedy will cause some harm or inconvenience to one side or the other.....Despite the guidelines and well laid out principles covering exercise of this jurisdiction, Courts, regrettably, have been administering the same like the proverbial Chancellor's foot of yore.'
It is, therefore, only proper to proceed in this case also to evaluate the right of the plaintiff for an injunction in the light of the well-marked parameters such as prima facie case, balance of convenience, irreparable loss and injury. Added to this is the circumstance that I am not the Court of the first instance but I am a Court of Appeal whose jurisdiction is circumscribed and limited to ascertaining whether the trial Court in making the impugned order had committed any error in the application of the requisite principles to the facts of the case.
11. The inquiry by me should not go beyond the foregoing and certainly does not extend to substituting my views to that of the learned Civil Judge. This again is trite law and a host of decisions of this Court make the aforesaid position very clear. I may refer in passing to the decision of His Lordship the Hon'ble Mr. Justice Govinda Bhat (as His Lordship then was) in LAKSHMI-NARASIMHIAH v. YALAKKI GOWDA. Adverting to the scope of an appeal from the order of the trial Judge granting or refusing to grant an interim injunction, His Lordship said:
'What the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The Appellate Judge is not to approach the case as if he were the trial Judge. The granting or refusing of injunction is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case.'
12. The decision in Lakshminarasimhaiah's case1965(1) Mys.L.J370 has been followed by Venkataswamy, J. (as His Lordship then was) in RANGAMMA v. KRISHNAPPA 1968(1) Mys.L.J. 552, His Lordship held:
'Granting or refusing of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the Appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order.'
Both these decisions have been referred to and followed with approval by Santosh J (now of revered memory) in LAXMIMANOJANA v. SUJNANDRA 1970(2) Mys.L.J. 82. His Lordship in setting out the guidelines directing the exercise of power by the Appellate Court in these matters and in setting out the circumstances under which the Court of appeal could interfere in an appeal from an interlocutory order, made the following enunciation which bears reproduction:
'If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion; but if it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would be open to the Appellate Court to interfere with the trial Court's exercise of discretion.'
13. The foregoing principles were reiterated in a more emphatic manner by Hon'ble Justice Kalaghate (now of revered memory) in SAKHARAM NANASAHEB PATEL v. VITHAL SIDDAPPA CHALAWADI 1968 Vol.17 Law Reports (Mysore) 512, wherein he laid down as:
'The Appellate Court has no power to set aside the discretionary order of the trial Court on the ground that the trial Court in its view has not correctly appreciated the materials placed before it.
Held that the contention that the Appellate Court had full power to consider the appeal on merits in view of the provision of Section 104 read with Section 107 of the Code of Civil Procedure could not be accepted as correct in appeals arising out of interlocutory orders which are discretionary in nature.'
Mr. Sundaraswamy also placed reliance on two decisions of Supreme Court reported in : [1960]3SCR713 Printers Ltd. v. Joseph, and AIR 1967 SC 2497 U.P. Co-op. Federation Ltd. v. Sunder Bros wherein their Lordships had enumerated the very principles adumbrated in the decisions of this Court referred to supra.
14. I might at this juncture recall that a good bit of the argument of Mr. Parthasarathy for the appellant was devoted in persuading me to hold that even in Ecclesiastical matters principles of natural justice applied and in this case where the Senior who had made allegations and accusations against the junior, not merely proceeded to hold an inquiry but also dismissed the junior eventually, thereby contravening the principles of natural justice. The submission is that the Senior had constituted himself a Judge to inquire into the very charges he had levelled against the junior and therefore the action of the Senior Pontiff came within the doctrine of 'Nemo judex in re sua' i.e., no one should be a Judge in his own cause and hence thoroughly indefensible.
15. But Mr. Sundaraswamy appearing for the Senior pontiff submits that these principles of natural justice and allied concepts did not apply directly to ecclesiastical matters and that our religion had at all times recognised the power of the Mahant or the religious head to remove a sishya from his office and that the said power could not be exercised by any one other than the Mahant. The ultimate submission of Sri Sundara-swamy was that the Senior Pontiff had to act because of the prevalent exigency which required the intervention of the Senior to protect the interest of the Mutt. In other words, it was said that in the existing circumstances action taken by the Senior against the junior was accordingly inevitable there being no other option at all and therefore on the principle of the doctrine of necessity the passing of the impugned order was justified. Mr. Sundaraswamy reminiscing from the legendary scripture of Mahabharatha cited the following sloka in support of the impugned action:
This stanza contains the advice of Vidura to Drutarashtra to cast away Duryodhana as the planetary signs under which he was born had indicated that he would be the sole cause for the destruction of the entire Kaurava dynasty. Vidura emphasising the great peril which awaited Kauvravas advised Drutarashtra to do away with Duryodhana so that the dynasty could be saved. His meaningful advice that it was better to sacrifice the individual in the interest of the rest of the family went unheeded and the result was the total perishing of the Kauvrava dynasty. Mr. Sundaraswamy cited this sloka from the ancient scripture to show that the Senior Pontiff's action in casting away the junior pontiff was taken to save the institution from the profligacy of the junior. But Mr. Parthasarathy for the junior pontiff urges a more modern outlook in these matters far removed from the embers of ancient relics and relies on a passage in Tagore Law Lectures, a treatise on which Mr. Sundaraswamy had earlier relied on in support of the contention that Mahant and Mahant alone can remove the Sishya inducted by him and nobody else had the power, to contend that not enough of invigorating research had been done in these matters justifying the conferring on the Mahant such large powers. I may also add that a galore of authorities had been relied upon by both Counsel in support of and against the propositions urged by either side.
16. Although very fetching the argument has been on this point, I must refrain however from adverting even slightly to the claims made on either side in this behalf since it is likely to prejudice the trial of the suit pending in the Court below. Prudence dictates and precedent enjoins that I must accept the course of steering a neutral path. For these reasons I cannot and do not propose to oversee the correctness or otherwise of the action taken to remove the plaintiff from whatever office he had held following his induction in the year 1975 and must decline to say whether the action by the Senior Pontiff was void, ab initio or merely invalid or to say in this context whether the inquiry leading to the removal of the plaintiff not being by an independent person was bad in law. I shall not also advert to the question whether an inquiry in the circumstances could have been held by somebody else at all but shall leave it to be investigated by the Court below if these questions are again mooted and joined in by both sides at the trial.
17. I must, however, at this juncture advert to an alternative stand of the plaintiff touching his removal since that requires a little consideration only regards a factual aspect. It is now urged before me that the Senior Pontiff had no power at all to remove the plaintiff because his position was that of a co-adjudicator under the Canon Law or that he was an associate in holiness with the Senior. In other words it is claimed that both the plaintiff and second defendant were persons of equal authority so that the latter could not have removed the plaintiff at all in the purported exercise of his authority. This argument was repeatedly highlighted before me and it was pointed out that the learned Judge in the Court-below had in the course of his order observed that Counsel for the plaintiff had conceded very fairly that the Senior Pontiff had the power to remove the junior pontiff and hence the investigation in the case should only be limited to ascertain whether such removal was for a good cause as enjoined by the decision of the Supreme Court in Thambeeran's case : [1974]2SCR74 . Mr. Parthasarathy who appeared for the plaintiff in this Court and in the Court-below, having argued the application for the grant of injunction in the Court below tells me that he had not made any concession regards the existence of power or authority in the Senior to remove the junior as noted by the Judge. Counsel says that learned Judge had mistakenly assumed that such a concession had been made before him While it was not made at all. If that is so I would assume with Counsel that he had not made any such concession and the Court-below was in some error in assuming the contrary. But, it seems to me, it matters very little, since that question being very much at large, the plaintiff would undoubtedly be at liberty to urge that he was removed not only without a good cause but that the Senior Pontiff had no power or authority to depose him from office at all. I make it clear that after the matter goes back to the Court-below if the question as to the authority of the Senior Pontiff to remove the junior pontiff is raised for active consideration, the Court-below will consider the same unbridled by whatever had been stated by it while disposing off the I.A. under reference.
18. Now that I believe I have fixed the contours of this appeal and the limits within which it must bedecided, I shall now consider the same in the light of the point arising herein as follows:
'Whether the Court-below was justified in the facts and circumstances of the case in refusing to affirm the ad-interim injunction granted to the plaintiff?
19. As pointed out earlier grant of ad-interim injunction has to course through the following slots:
(i) prima-facie case,
(ii) balance of convenience,
(iii) irreparable injury to the plaintiff, and
(iv) lastly all injunctions being absolutely discretionary in nature whether there was any overriding consideration that supported the refusal of the injunction by the Court-below.
It is not disputed before me that the learned Judge considered the facts obtaining from the records in accordance with the foregoing parameters. Briefly I may recall his findings: To start with the learned Judge agreed with the plaintiff that he had made out a prima facie case by commending a serious question for consideration by the Court about the propriety or legality of the order passed by the Senior Pontiff deposing him from office and held that the question commended was one which was neither casual in nature nor was it a postulate tainted by levity.
20. The learned Judge dwelling next on the question of existence or otherwise of a prima facie case has, however, limited it to the question as to whether the appointment of the plaintiff as a junior pontiff had been revoked by the Senior without any good cause. It is agreed that the plaintiff could have been unseated only if there was a good cause or justification for his removal. But the learned Judge seemed to think that Counsel for the plaintiff had accepted the position regards the availability of power in the second defendant to remove the plaintiff. But I have already noted that in this Court Mr. Parthasarathy for the appellant maintained that he had not made any such concession before the learned Judge.
21. Be that as it may the learned Judge next proceeded to consider the question of balance of convenience and in ruling that such balance of convenience lay more in refusing the injunction rather than granting it, he foresaw the onset of chaos in the Mutt if the plaintiff were to be given an injunction and on the basis thereof the right to exercise the concomitant privileges of the office from which he had been ousted. According to him an order in his favour would cause great problems in the administration of the Mutt, concerned as it was in running a large number of educational institutions apart from catering to the needs both Spiritual and temporal of its followers. He pointed out that proximity of the two Heads to one another as at present would be ruinous to the institution and would bring about disastrous consequences. He observed in his order at para 21 as follows:
'This may lead to disastrous consequences since both plaintiff and defendant No. 2 may try to act in their own way and deal with the property and manage the affairs of the Mutt in their own way. This situation would definitely cause much injury or harm to the Institution, whose interest, I consider as paramount and if such an order is granted, it would have adverse effect on the administration of the Institutions connected with the first defendant's Mutt.'
22. Turning next to the question of irreparable loss and injury that the plaintiff would suffer by refusal of the injunction, the learned Judge in the penultimate part of the Judgment says:
'Now in the instant case, it is admitted in the affidavit filed in support of I.A.I that the second defendant has been managing the affairs of the Mutt and the innumerable institutions run by the Mutt. It was also admitted by the learned Counsel for the plaintiff that defendant No. 2 is also there as Matadhyaksha and the right of defendant No. 2 to nominate his successor and further his right to remove his successor was also not disputed by the learned Counsel for the plaintiff. In fact, Tambiran's case referred to above is clear on this point that the Matadhyaksha has got right to remove his successor for any good cause and in the interest of the Mutt. Now that being so, it must now be considered as to what would be the effect, if an order of injunction is granted as prayed for in I.A. No. l. The prayer in I.A.No. l as already mentioned is to restrain the defendants from interfering with the exercise and performance of the duties of the plaintiff and his functions as Matadhyaksha and Charajangama Pattadhikari. If this order of injunction is granted definitely the plaintiff would get all the rights exercise his power and performing his duties and functions as Matadhyaksha, in which event, there will be a parallel administration, both by the plaintiff and defendant No. 2, since admittedly defendant No. 2 is already there managing and administering the Mutt's affairs as Matadhyaksha. Therefore, the granting of order of injunction as prayed for in I.A.No. l would definitely be putting the institution in such a situation that both plaintiff and second defendant would be virtually acting as Matadhyakashas in their own way, which would be definitely not in the interest of the Mutt, which has a long history. This may lead to disastrous consequences, since both plaintiff and defendant No. 2 may try to act in their own way. This situation would definitely cause much injury or harm to the institution whose interest I consider as paramount and if such an order is granted it would have adverse effects on the administration of the institutions connected with the first defendant's Mutt. In this view of the matter, I am of the opinion that the injury that would be caused to the first defendant Mutt would be more than the injury that would be caused to the plaintiff.'
23. The question now is whether the learned Judge had gone wrong anywhere either in addressing himself to the legal position regards the grant or otherwise of an injunction or whether the views expressed by him as above were so unreasonable, unjustifiable or sufficiently capricious to call for interference at the hands of this Court.
24. I am to recall that Sri Parthasarathy for the appellant expended a lot of fire power on the finding of the learned trial Judge vis-a-vis the prima facie case he found to be clearly existent. Counsel submits that having regard to the tried and established position of law the order made by the defendant being in total transgression of the principles of natural justice was void and void ab initio and the Court was, therefore, duty bound to revive the office held by the plaintiff by the issue of a temporary injunction so that he would not suffer or experience any aberration in the enjoyment of that office. Mr. Parthasarathy read to me passages from Halsbury's Laws of England, Woodroff on Injunction, Wade on Administrative Law besides relying repeatedly before me on the decision of the Supreme Court in Thambiran's case emphasising the principle laid down therein that the junior had also recognised powers in tune with that of the Senior with whom the junior shared a holy relationship in the enjoyment of spiritual power. Mr. Sundaraswamy, the Senior Counsel, appearing for defendants 1 and 2, herein sought to contend that in these 'matters of religion natural justice had no role to play at all and that nobody can be expected to or be in a better position to judge the pupil than the teacher himself. Without more this being clearly a case of necessity compelling the Senior Pontiff to act in expelling the junior for good reasons and in the interest of the Institution which he heads, the action so taken was not merely justified but was well-Warranted. He relied on a passage from Jakson on 'Natural Justice' with particular reference to professional expertise being necessary to take a particular decision and necessity spelling out the exception to the rule nemo index in re sua. The said principle therefore had to yield to necessity. Similiar passages in Wade's 'Administrative Law', Smith's 'Judicial Review of Administrative Action' and others were relied on. Mr. Parthasarathy in turn joined in with a chain of authorities to reinforce his argument that the Senior Pontiff being literally blinded with prejudice and hatred towards the Junior was totally incapacitated in acting in the matter and much less in taking a decision to the detriment of the plaintiff. The learned Judge in the Court below was invited to record a finding on this aspect of the matter but had wisely declined to do so. I must recount again that we are still at the threshold of the trial which is yet to commence and, therefore, in this Court I should take care not to say anything that is likely to prejudice one side or the other.
25. I need hardly add the existence of a prima facie case in these matters of granting injunction is really the harbinger or the all clear sign to go ahead in investigating other aspects of the question governing the grant or refusal of injunction. If there was no prima facie case at all or the case put forward was so weak and tainted having very little prospect of being accepted by the Court, further questions of balance of convenience and irreparable loss need not be considered since the plaintiff would fall at the very first stile itself. But if there was a prima facie case then other considerations governing the grant of injunction 'would come into play and will also have to be evaluated before granting or refusing the injunction.
26. In other words the existence of a prima facie case or even a very strong prima facie case does not permit leap-forging by the plaintiff directly to an injunction without crossing the other hurdles in between, In England before the advent of the decision in AMERICAN CYNAMID CO. v. ETHICON LTD ILR (Kar) 1976(1) 426. referred to and followed by this Court in L.I.C. v. Bangalore L.I.C.E.H.C.S. LTD. the existence of a prima facie case strong enough to ensure fool-proof success ultimately of the lis was treated as the criterion for the grant of any ad interim injunction. But that view underwent a sea change following the decision in Cynamid Company v. Ethicon Limited wherein the House of Lords said, in order to ascertain whether a prima facie case did exist or not, it was not necessary to hold a mini trial at the threshold but it would be sufficient if an endeavour was made by the Court to identify that the suit 'Claim was neither vexatious or too casual for consideration. It is in that context this Court in L.I.C. v. Bangalore L.I.C.E.H.C.S. Ltd. made the following statement at para 24:
'The preventive remedy of injunction is thus granted as an instant antidote to stop or prevent the invasion of the plaintiff's rights in regard to which a complaint is made. The Court having regard to the expediency involved should not embark upon a nit-picking operation at that stage by holding a mini trial to lay thread-bare the case of the plaintiff to find out if a prima facie case is made out or not. It would be sufficient if the Court is assured that questions raised by the plaintiff are not vexatious or too casual, but are such as to merit serious consideration at a subsequent stage.'
There is overwhelming authority- for the proposition that mere existence of a prima facie case or a very strong prima facie case does not ipso facto justify the grant of an injunction (See in this connection J. KRISHNAMOORTHY v. BANGALORE TURF CLUB ILR (Kar) 1975, 1957, and NATIONAL ADVERTISES v. M.S.R.T.C 1963(2) Mys.L.J. 356. Therefore even granting that the plaintiff has an invincible prima facie case, he will not be entitled exde bitiae justiciae, to the grant of an injunction unmindful of other consequences. If the consequences of granting an injunction are detrimental in nature then an injunction will not be granted even though the plaintiff might have an unbeatable prima facie case. It is precisely for this reason and just as the learned Judge in the Court below did, I must also desist from pronouncing finally on the question of niceties raised and argued by both sides touching the tainted character or otherwise of the impugned order made by the Senior Pontiff in removing the junior from office. A Court, it is said, like a human being must cross a bridge only when it comes across the same and not leap blindly even before it is reached and, it being not necessary to decide all these questions at this stage, I must desist from recording a finding on all these questions as that would be forestalling the issues arising in the suit.
27. Hence, it is with some reluctance I refuse to be drawn into recording my views on all these matters despite the able assistance rendered by Counsel on either side. In sum I must say that on the first of the parameters for deciding an injunction namely the existence of a prima facie case, the learned Judge in the Court below having held that such a case did exist and that finding being entirely in favour of the appellant needs little for concurrence and even so I have no hesitation in concurring with the learned Judge in holding that the plaintiff had made out a prima facie case and has certainly not come forward with any ambiatory plaint requiring no serious consideration at all.
28. The next point urged for consideration is the finding of the learned Judge apropos the balance of convenience as aspect oh which he has non-suited the plaintiff. The question is whether he was right in doing so. What in the context is balance of convenience and how is it to be judged are aspects dealt with in the LIC case referred to supra. Adverting to the same this Court said:
' 'Balance of convenience' in thus not something akin to a tradesman's scales to be manipulated adroitly but it is the resultant anticipation by the Court in an objective manner of the concomitant hardships experienced by the one vis-a-vis advantages secured by the other party subject to there being clear chances of mitigating in some manner the hardship endured pen-dente lite by one or the other side and the prospect of being adequately compensated should pre-eminently be the primordial factor guiding exercise of discretion one way or the other.'
Therefore, the question now is whether in the final analysis taking into consideration the grievance of the plaintiff, the rights of the defendants and particularly of the first defendant institution regard being had to the fact that Its administration requires a well monitored system free from hassles between those responsible for running it, would it be convenient to injunct the defendants against the plaintiff thus providing him immunity from the alleged meddlesome conduct of defendant No. 2?
29. Mr. Parthasarathy throughout the course of his argument maintained that the plaintiff was not interested in asserting any right to participate in the administration of the Mutt or its kindred institutions but he would be content If he is only allowed the use of the residential part of the Mutt for his residence as before. It is common ground and as a matter of fact the temporary injunction granted by the Court below to the plaintiff continues even now and that injunction is merely made use of by the plaintiff who stays elsewhere for visiting a room in the Mutt premises now and then, at intermittent Intervals staying there for some time before returning to his abode outside the Mutt- was told even during these periodic visits the plaintiff had to be accompanied by a posse of policemen to ensure his personal safety.
30. The learned Judge, as can be seen from the excerpt of his order which I have culled out herein before, felt that the grant or continuance of the Injunction would result In parallel administration with both the plaintiff and defendant No. 2 vying with each other to turn the wheel of administration leading to a result which would be disastrous to the Mutt and the educational institutions it was running. Mr. Parthasarathy takes serious exception to this finding and submits that even during the earlier days when his client had no differences with the Senior his client having followed the instructions of the Senior and had attended only to such work as had been entrusted to him. Counsel says that even now he would do the same thing and be content with a role more suited to a docile pet than to the Head of the Institution responsible for catering to the needs of the followers of the Mutt.
31. I am afraid it is some what difficult to assimilate into the character of the plaintiff a supine attitude like the one envisaged by his Counsel. From the galore of documents and pleadings that have been produced in the case, there is clear indication and it is also not denied that the relations between the Senior Pontiff and the junior pontiff has been greatly strained and badly soured. In the two show cause notices issued by the Senior to the junior he has alluded to the plot engineered by the junior not merely to overthrow him but also to do away with him. There are some letters written by the Senior to the junior long before the present Impasse between them came to surface, expressing displeasure at the attitude, behaviour and conduct of the plaintiff In not devoting his attention to the affairs of the Mutt with particular reference to his callous neglect in bestowing care, and attention on the students that are said to reside In the Mutt whose number, I am given to understand, touched nearly 4000 and all of them had to be fed by the Mutt which, indeed was a stupendous task. It may be noted that the Senior Swamy had in the past found some reason to take umbrage at the junior's conduct and to pull him up.Subsequently there were serious differences with each man blaming the other for the deteriorating situation.
32. It has transpired that people from all walks of life in the State and in the town of Tumkur where the Mutt is located, not to mention the Ministers, Government Officers, police officials, having intervened and negotiated with the two Swamijis had finally resulted in a settlement in the month of May, 1986, as could be seen from a docket of assurance given by the junior agreeing to bury the hatchet, and to begin anew with the onset of a new dawn. But then a day or two later the Senior went to Bangalore, executed a Trust Deed under which he constituted a Trust headed by himself and others who were in his confidence and in the course of the Trust Deed adverted to the unpredictable behaviour of the junior and to his distressing conduct of late had led him to believe that an occasion had arisen to take steps to ensure the safety of the vast properties of the Mutt so that they do not fall in later years into the outstretched hands of greedy Inter-meddlers. The moment, the plaintiff came to know of the execution of this Trust Deed he issued a press statement warning people from meddling with the properties of the Mutt covered by the Trust Deed and swearing to take action to rescue properties of the Mutt covered by the Trust, the ushering in of which was strongly deprecated. Thereafter he appears to have taken to making a foray of trips outside the Mutt claiming himself to be the head of the Mutt without making any reference to the Senior Pontiff who was still on the scene then and is very much on the scene even now.
33. Added to all this there was an incident at which a catche of explosives stored in the Mutt had been set fire to, causing extensive damage to the properties of the Mutt and injuries to the inmates as well. The hand of the junior was suspected in that behalf. He also seems to have incurred the wrath of the Senior by gathering around him a coterie of people who appear to have little or no respect for the Senior Pontiff. One amongst them was a person called Maridevaru, a journalist of Tumkur whom the plaintiff had commended to the Superintendent of Police as a close associate requiring police protection, he had written, printed and published pamphlets denigrating the Senior swami whom he referred to as 'Dr. Shavakumar Swami'. That Maridevaru was one among the others whom the plaintiff had occasion to commend to the police for protection as a member of his immediate entourage, against the marauders from the camp of the Senior.
34. I have briefly examined at random some places of material having evidentiary value bearing on the question of balance of convenience and have adverted to some of them although there is infact a galore of documents indicating the plaintiff had of late been exhibiting a panache for supplanting the Senior and holding himself out as the Mathadhyaksha. As a matter of fact in the cause title to the plaint he describes himself as Mathadhyaksha, although his Counsel does not dispute that he was anointed and appointed only as Charajangama Pattadhikari. Counsel submits that it is on the basis of the decision of the Supreme Court in Thambiran's case referred to supra that relationship between the Senior and the junior being akin to that of co-adjustors or joint associates the reference to the plaintiff as Mathadhyaksha is sought to be justified. Regards the events that are said to have taken place within the Mutt disturbing its serene atmosphere, Counsel says that his client had been unjustly blamed and maligned although he had no hand in it and nor was he responsible tor any of the incidents. Likewise in regard to deifying of the plaintiff in and outside the Mutt as the Head, Counsel again says that the junior was not responsible but his followers were. He maintains that even now he would only be content with being restored to his position inside the Mutt as before and to the Senior Pontiff who was still on the scene then and is very much on the scene even now.
35. Again I must remind myself herein I am to examine whether the finding of the Judge in the Court below was not justified in the view he took on the question of balance of convenience on the basis of facts and material on record. It is for that purpose I have adverted to the material available on record so that I could review his conclusions In their background.
36. It is not necessary to reiterate that on any of these questions or any other question arising herein there may be the possibility of this Court taking a different view from the one which the learned Judge below had taken but it will be wrong to substitute my views to that of the learned Judge, unless it can be said that on facts there was only one view to take and the learned Judge in the Court below had omitted to take the same, but it is a different proposition altogether where two views are possible. Bearing in mind the aforesaid principle, if the finding of the learned Judge is reviewed it becomes clear that it does merit affirmance and does not warrant expressing any demurrer. I am satisfied that armed with the injunction the plaintiff, is not likely to sit quiet with his arms akimbo. The statement the plaintiff had issued after the Senior Pontiff executed the Trust Deed clearly spells out the view point of the junior and the ambitions he nurtured even when the Senior Pontiff was still there and hence in the usual course he would not have any voice in the administration of the properties of the Mutt or in its affairs. Notwithstanding the same he had still voiced a strong dissent, almost clenched his fist swearing to take action to recover the properties of the Mutt from any one who had dared to take them on transfer. As pointed out by Mr. Sundaraswamy the imperious manner in which he commanded the Superintendent of Police to take care of his satraps clearly denotes his pen chance for exercising authority all of which certainly does not forebode a comfortable sojourn for the Institution if the plaintiff is armed with an injunction and sent round the Mutt premises. I should think that even the slightest prospect of an Anarchical situation prevailing In the Mutt following the arming of the plaintiff with an injunction by Court should be sufficient reason to preclude its grant. There is also a clear possibility of the people at large becoming the victims of the power-play between the plaintiff and defendants, in such circumstances, prudence, if not trite principles of law laid down by eminent writers like Woodroff, Nelson, Spry etc., to whose works my attention was repeatedly drawn to, commend refusal of the injunction as a prudent course and discretion is better exercised by refusing the injunction sought for. In more or less similar circumstances in a dispute between two religious heads, the trial Court having refused to grant an order of injunction to prevent the first defendant from entering into the sanctum sanctorum and offering worship, this Court refused to interfere with the said order. That was the decision of Santosh, J. to which I have referred to earlier in the case of Laxmimanojana v. Sujnandra. I must in the circumstances of the case follow with respect the said decision and decline to interfere with the finding by the Judge in the Court below refusing to continue the interim injunction.
37. The last of the circumstance is the question of resultant injury to the plaintiff if injunction was refused. What does he suffer and what does he lose is the question. Even if he suffers something can he not be compensated is the other question. Adverting to the latter Sri Parthasarathy submitted that his client being a celebrate monk neither looks forward to nor can he look forward to any requital monetarily. But the fact remains that although he may not want it, it is possible to compensate him by way of damages which may be just a token or a substantial sum depending on his volition. But that he may not avail the chance of compensating himself if he succeeds in getting a decree is not reason to hold that he had suffered presently an irreparable or uncompensatable injury. In fact the submission of Mr. Parthasarathy that his client does not require any monetary compensation is taken to its logical end it only means that he has nothing to lose if he is denied the injunction unless it be the user of a room In the Mutt premises which even now he is said to use intermittently on some days in a week. But then if he has to exercise that right by walking into the premises surrounded by a Conti gent of the local police, one may well ask why at all he should indulge in an exercise he cannot perform as a free agent like any other human being. If his visit to the Mutt premises has to be organised in this manner and all that he does is to go and stay there now and then for a little while and that perhaps is because he has the key to the room still in his possession as stated before the Court below, it seems to me that expending of judicial authority for granting an injunction to the plaintiff just to enable him to make sporadic visits to the Mutt premises from his place of residence elsewhere therefore appears to be only a meaningless charade and does not really serve any useful purpose. He does not suffer any inconvenience by not visiting the Mutt and nor does he stand to gain anything by his occasional visits under heavy escort. Therefore, the exercise of discretion in favour of the plaintiff would be clearly pyrrhic unattended by any tangible rewards either to the plaintiff or to any one else.
38. On the contrary these visits if done under the cover of the Injunction might bring in some untoward results so far as the defendants are concerned and can well be avoided by declining to grant the injunction as the plaintiff himself benefits very little. Therefore, it is after analysing the case of the plaintiff vis-a-vis the legal requirements enjoined for consideration by a Court, It becomes clear that plaintiff satisfies none of them and that being also the view of the learned Judge, I must unhesitatingly concur with him. Before parting with this topic, I must advert to a submission made by Sri Parthasarathy, learned Counsel for the appellant, criticising the Judgment of the Court below on the ground that it had failed to make an order on terms, in that, even while declining to grant injunction it should have put the other side on terms, a step Counsel submits that would have been in tune with the decision of this Court in L.I.C. v. Bangalore LIC E.H.C.S. Ltd. referred to earlier. It is true in that Judgment I did say that granting of injunction should always be made on terms so that in the ultimate disposition it turns out that granting of the Injunction was unwarranted, a person who suffered the Injunction should not be, driven to further litigation, to reimburse himself regards loss or damage sustained In consequence of that injunction. But then in the instant case the Court has refused the injunction and what the plaintiff suffers by non-grant is an aspect which generates a lot of scepticism and doubt, therefore in such circumstances if the Court below had merely refused the injunction and not taken the precaution of soft peddling that order further by imposing some terms on the defendants to make allowance for the Conti gent success of the plaintiff in the suit, I do not think that any criticism could be justly levelled against the Court of having committed a default under law. In that view of the matter, it becomes clear that the last-ditch attack on the learned Judge's order by the plaintiff has very little to commend itself and clearly deserves to be discarded.
39. There is yet another reason why I should decline the injunction as the learned Judge in the Court below did. In the records there is reference to a charge-sheet filed by the Tumkur police against the plaintiff, no doubt after the institution of the suit, alleging the commission of an unnatural offence punishable under Section 377 IPC. It is a charge-sheet filed by the police of the Karnataka State and is clearly not a myth. Presently I am given to understand that plaintiff has been enlarged by the Court on bail. But the up-shot of the whole thing is that today he is facing a charge of extreme infamy wholly incongruent and inconsistent with his image as a religious head expected to minister to the spiritual needs of his flock. It would indeed be a curious spectacle if on the crest of an injunction granted by the Court the plaintiff first rides to a conclave of his laity to receive their obeisance and the very next moment is in the dock before the Criminal Court answering the charge of having committed- an offence involving moral turpitude most unbecoming of a religious pontiff. Mr. Parthasarathy says his client had been framed falsely in a vile attempt to scandalise and to denigrate him in the eyes of the public at large. But whether it, is that or otherwise the truth will come out only after trial and until then while nobody can say he is guilty it can still be said that he is accused of a blasphemous criminal offence and is facing a trial In that behalf. I need hardly add that the relief of injunction being a remedy in equity must be bestowed only on those whose reputation and hands are both spotlessly clean. If not anything else, at least this circumstance should over-ride all other considerations and must lead to the affirmation of the order of the Court below in refusing to continue the ex parte injunction granted by it.
40. Therefore, it is and for the reasons mentioned above, I affirm the order of the Court below and make an order dismissing this appeal. Costs herein will be costs in the cause and will abide by the final result in the suit.