| SooperKanoon Citation | sooperkanoon.com/332946 |
| Subject | Civil;Trusts and Societies |
| Court | Mumbai High Court |
| Decided On | May-02-2000 |
| Case Number | Appeal From Order No. 840 of 1999 in Notice of Motion No. 3120 of 1998 in Short Cause Suit No. 3741 |
| Judge | Mr. R.J. Kochar, J. |
| Reported in | 2001(2)ALLMR379; (2001)1BOMLR482; 2001(1)MhLj572 |
| Acts | Bombay Public Trusts Act, 1950 - Sections 2(13), 50 and 51; Code of Civil Procedure (CPC), 1908 - Sections 9 and 92 - Order 1, Rule 8; Constitution of India - Articles 25 and 26 |
| Appellant | Naresh Amritlal Shah and ors. |
| Respondent | Kantilal Chunilal Shah and ors. |
| Appellant Advocate | Mr. Iqbal Chagla, ;Mr. Navin Parekh and ;Mr. A.R. Pande, Advs. |
| Respondent Advocate | Mr. S.G. Aney, ;Adv. i/b Mulla and ;Mulla & C.B.C. |
R. J. Kochar, J.
(1). A handful few amongst the whole Jain Community tend to create a meaningless controversy threatening to divide the Jains on an equally absurd point in respect of the manner in which their Guru or Sadhu is to be worshiped. Whether nine points of the body of Guru [Navangi] should be worshiped or he should be worshiped only on one point [Ekang]? Fortunately there is no dispute or controversy in respect of the manner in which the Idol or Murti of any Tirthankar is to be worshiped. Generally, a Murti of God is worshiped and not a living human being, howsoever great he or she might be. Such living great souls in the form of human body are always shown reverence or respect of Ibadat and the Jains call it to be a 'Guruvandana'. The Jain Gurus i.e. Sadhus or Monks, always have their sojourn in what is known as Upashraya where the Jains go to take their Darshan and offer Vandana and take their holy blessings in the form of what is known as Mangalik and Dharmalabh. The Jain Gurus have their own ranks or classification according to their learning and achievements in Tapasya or Penance as prescribed in the Jain Shastras. They are Acharya, Upadhyaya and Sadhu. They are three amongst five 'Panch Parmeshti', The first is the Tirthankar being the 'Arihant' and the second 'Siddha'. Both are not available as explained in the Jain literature. The latter three 'Panch Parmeshtis' are available to be worshiped. Though I have never heard any of them desiring or expecting to be worshiped physically, by and large they are shown respect by the Jain people (Shrawaks) by bowing down with both the folded hands and putting their forehead on the earth before their Gurus three times or as the case may be. In return, on receiving Vandana from the Shravak, the Gurus shower, their blessings on them after the Shravak performs what is know as 'Jain Puja' i.e. a holy book kept near the Guru-After renouncing the 'Sansar' - the worldly life and becoming ascetic, a Sadhu has to have self control (Sanyam) and tolerance. He cannot elevate and equate himself with the God or Tirthankars to be worshipped exactly like them. That would be a vanity of first degree which a Jain Sadhu must shed away, first of all. Such a sense of self-vanity to get worshipped like an idol is anathema to Jainism. The Jain Acharyas/Sadhus have never arrogated themselves to the level of the worshipping idols enshrined in the Jain Temples. Jainism knows humility of and sufferings by Lord Mahavira: it does not know any air of arrogance on the part of its Acharyas or Sadhus.
In the present case some of the Jains have started a controversy in respect the manner in which the Guru Poojan is to be performed. I have no doubt in my mind that such a controversy is not traceable in the ancient Jain Shastras or scriptures. As far as I know the ancient Jain Community did not have any such practice like the Navangi Guru Poojan or Ekangi Guru Poojan. It appears to be of very very resent origin i.e. the latter half of this century. Having no philosophical or scriptural or Shastriya base, it is possible that some learned Commentator amongst the Jain Gurus might have himself introduced such a concept of Navangi Gurupoojan and as a result thereof a very few amongst Jains have started following Navangi manner of Guru Poojan (for want of accurate and exact synonymous in English. I have preferred to use the original Jain terminology, as far as possible, to convey the correct and appropriate sense in the matter). There is no such reference or mention in the Commentary on the Jain philosophy by the greatest disciple of the last Tirthankar, Lord Mahavir, His Holiness Hari Bhadra Suriji Maharaj that any living Jain Acharyas downwards to Sadhus should be worshipped at nine points of their body i.e. Navangi Guru Poojan. And nothing was shown to me in that respect by Shri Aney, the learned Counsel for the Plaintiffs. Nor is there any reference to the Navang Guru Poojan or Be Tithi practices anywhere in the Great Jain Encyclopedia written by the Great Jain Acharya Devardhi Kshma Kshman, known as the Abhidhan Rajendra Kosh.
2. The plaintiffs in the original suit are the Jains by faith. They are also the members of the 'Matunga Jain Swetambar Murti Poojan Tapa Gaccha Sangh and Charities', a public trust registered under the Bombay Public Trusts Act, 1950. The defendants are the Trustees of the said Trust. The Trust is being administered and managed in accordance with the scheme formulated and settled by this High Court in Suit No. 2217 of 1948 by its Order dated 29.9.1948. I may mention here that along with the controversy in respect of the Guru Poojan there is another controversy trying to take root in the Jain Community is in respect of what is called as 'Tithi' on the basis of Jain Calendars.
3. In its General Body Meeting held on 1.7.1998, the Trust passed the following two Resolutions viz. :
(a) Shri Sangh again clarifies that here doing of Navangi Gurupoojan or caused to be done is prohibited.
(b) Shri Sangh again clarifies that here decrease/increase of Parvatithi, Samvatsari etc. is not considered and rituals are done accordingly.
[The aforesaid resolutions were recorded in Gujarati and they are reproduced by me as per the exact translation furnished]. Both the resolutions appear to have been passed and carried by a majority of 271 in favour and 45 votes against and 265 members in favour while 51 members against the resolution, respectively in both the aforesaid resolutions. The scenario emerges from the aforesaid pattern is that there are atleast 45 and 51 members, who appear to have voted for the Navangi Guru Poojan and Be Tithi Calendar. They appear to have been voted out by a large majority present. They have been aggrieved by the aforesaid two resolutions passed in the meeting and enforced by the Trust in practice. It appears that the following Sign Board was displayed by the Trust at the premises of the Upashraya :
'This Upashraya can be used only by the Jain Monks who are followers of or believers in the conduct prescribed by 'Shri Godiji Vijaydev Sura Sangh' and This Upashraya cannot be used for Navangi Guru Poojan'.
4. The present three plaintiffs filed the present Suit before the Bombay City Civil Court at Bombay to give challenge to the legality and validity of the aforesaid resolutions passed in the General -Body Meeting of the Trust held on 1.7.1998. Originally other prayers appear to have been made for relief but it appears that subsequently the Plaint was amended and excepting the following all other prayers were deleted :
(a) That this Hon'ble Court be pleased to decide that the Resolution passed by the Defendants in the Annual General Meeting dated 1st July. 1998 and if any such resolutions passed by the Board of Trustees in its earlier meeting are illegal, bad in law, null and void, ineffective and inoperative;
(b) Pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to :
(i) the Defendants be further restrained from obstructing, objecting interfering in performance of any religious rites of their personal preference by any Jain Shwetamber Murti Poojak Tapagachha Sangh followers in the Trust property in any manner whatsoever;
(ii) The Defendants be restrained from displaying, exhibiting, affixing any Board painted, printed or in writing, declaring illegal Resolutions passed in Annual General Meeting of 1st July. 1998, or any other Resolutions passed by the Board of Trustees in any of its earlier meeting of concerning Navangi Guru Poojak and religious rites of Ek Tithi School of Thoughts on the Trust property;
(iii) the Defendants be further restrained from obstructing any Jain Monks from coming over staying, giving religious discourse and performing any religious rites in the Trust property;
(c) Interim and ad-interim relief in terms of prayer (g) above be granted;
(d) Cost of this suit be provided for:
(e) Any such other and further relief be granted as the nature and circumstances of the case may require.
Prayer (a) is the main and substantial prayer while other prayers are in the nature of interim reliefs during the pendency of the Suit. From the inception of the aforesaid original Suit there have been a first round of the journey by both the parties upto the Supreme Court, for one or the other reasons, with which I am not presently concerned. I have therefore, skipped all such details which have no bearing on the issue which I am presently called upon to decide in the present Appeal from Order. Before the Trial Court the Defendants have filed their affidavits in reply and several other documents in support of their case and also to oppose any interim relief to be granted to the Plaintiffs which they have sought by filing a Notice of Motion. The Plaintiffs have also produced a number of documents in support of their case of Navangi Guru Poojan. On the basis of the pleadings and documentary evidence and after hearing both the sides the learned Trial Judge by his Order dated 27th July, 1999 granted interim relief to the Plaintiffs in terms of prayers (a)(i), (a)(ii) and (a)(iii). For ready reference the aforesaid reliefs prayed for and granted by the Trial Court are reproduced below :
(a) Pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to :
(i) the Defendants be further restrained from obstructing, objecting, interfering in performance of any religious rites of their personal preference by any Jain Shwetamber Murti Pujak Tapagachha Sangh followers in the Trust property in any manner whatsoever;
(ii) The Defendants be restrained from displaying, exhibiting, affixing any Board painted, printed or in writing, declaring illegal Resolutions passed in Annual General Meeting of 1st July, 1998, or any other resolutions passed by the Board of Trustees in any of its earlier meeting of concerning Navangi Guru Poojan and religious rites of Ek Tithi School of thoughts on the Trust property;
(iii) The Defendants be further restrained from obstructing any Jain Monks from coming over staying, giving religious discourse and performing any religious rites in the Trust property.
5. The original Defendants being aggrieved by the said Interim Order passed by the Trial Court, in favour of the Plaintiffs, in the Notice of Motion No. 3120 of 1998, have filed the present Appeal from the said Order. The Dispute being sensitive and touching the religion, affecting the whole Jain community as such, the appeal has been heard on a priority basis at the request of both the learned Counsel. I have heard both the learned Counsel at great length. Both have also cited a number of Judgments of the Supreme Court and the High Courts. Shri Aney, the learned Counsel for the original Plaintiffs has also cited before me a number of authorities in support of his case in respect of Navangi Guru Poojan. I may mention here itself that no authoritative texts from Jain Scriptures have been shown to me by either side. Neither Shri Chagla, the learned Counsel for the original Defendants-Appellants before me, was able to show any Jain Text or scripture preventing the Navangi form of Guru Poojan nor Aney, the learned Counsel for the original Plaintiffs, has shown me any authoritative Jain literature in support of his case that such a form of Guru Poojan was permissible amongst Jains from the time immemorial. Shri Aney however has fairly put forward his case that the Navangi Guru Poojan practice has its origin of atleast 60 years though he was not able to trace its origin in the ancient period of the Jain religion which is said to be the oldest of all the religions. It can be safely accepted that the Navangi Guru Poojan was first thought of by one learned Jain monk t.e. Acharya Ram Suriji. It can further be safely said in the absence of any thing contrary before me that the original Jain Agamas, Shastras do not have any reference or mention of Navangi Guru Poojan practice. No authentic and reliable material was placed before me to show the basis of such an innovative practice introduced by the said learned Acharya.
6. Shri Chagla, for the original Defendants-Appellants has precisely submitted as under :-
(1) the suit itself was not maintainable in the City Civil Court as the Plaintiffs had filed it in their so-called representative capacity without following the mandatory procedure prescribed under the Order I Rule 8 of the Civil Procedure Code, (2) such a suit is barred under sections 50 and 51 of the Bombay Public Trusts Act, 1950, (3) such a suit is also barred under section 9 of the Civil Procedure Code and (4) the impugned Resolutions passed by the Trust were well within the scheme framed by the High Court and it was within their powers to prescribe rules and regulations to manage and administer the affairs of the Trust. Following the doctrine of internal management the Trust was free to pass such resolutions and that the Court had no powers and jurisdiction to interfere with the internal management of the Trust.
As against the aforesaid contentions of Shri Chagla, Shri Aney defended the impugned Order of the Trial Court and submitted that this Court should not interfere with the well reasoned Order passed by the Trial Court at the interim stage. He gave great emphasis on Article 25 of the Constitution of India and also questioned the legality and validity of the resolutions passed by the Trust which according to Shri Aney are not only ultra vires the Constitution of India but also ultra vires the scheme governing the Trust. According to him, the impugned resolutions should be declared null and void ab initio as the Trust could not travel beyond the Article 25 of the Constitution of India and also the Scheme. In the background of the aforesaid salient features of the case and vehement submissions of both the learned Counsel on behalf their respective parties. I have to decide the present Appeal involving a sensitive though of course not explosive issue touching the religious practices of the Jain members of the Trust. I do not wish to enlarge the scope of the present dispute touching the sentiments of the Jain community, as such I have confined myself to the issue of virus of the impugned resolutions in the four corners of the scheme governing the Trust.
7. In the broad facts and circumstances narrated above and in the context thereof the following questions are required to be answered by me. With the assistance of the both the learned Counsel and also for myself independently, I have very carefully gone through the entire proceedings and also the several precedents cited before me.
(i) Whether the impugned Resolutions dated 1.7.1998 are ultra vires the scheme settled by this High Court for the administration and management of the Trust properties and the charities ?
(ii) Whether the impugned Resolutions are hit by the Article 25 of the Constitution of India ?
(iii) Whether the Trust has powers under the aforesaid scheme to prescribe or to proscribe any practice or mannerism to perform Guru Poojan in the Upashraya?
(iv) Whether the Trust can assume any such authority to permit or prohibit any religious practice in any form whether followed by a majority or a minority of section of the Jain people
(v) Whether power to administer and to manage the Trust and the charities includes any such power to restrict the use of the Trust property i.e. the Upashraya to the members of the Trust to follow or practise their faith in the Jain religion in any manner and to bar others who do not do so ?
The Trust and the Trustees are required to manage and administer the Trust and its charities in accordance with the scheme. The scheme has indicated its properties such as Devdravya or temple properties and the general properties dedicated for Sadharan and the spread of knowledge etc. and also properties given for specific special trust etc. Among the trust's immovable properties the trust owns a temple i.e. Derasar and Upashraya that is where the Jain Sadhu have their stay whenever they are in the Town. As far as the temple is concerned there is no dispute in respect of the manner in which the images or idols of the gods are to be worshipped. The whole controversy revolves around the manner in which the Jain Sadhus or Gurus who come to the Upashraya are to be worshipped and in respect of the Tithi to be observed. The trust has control and supervision over the administration of the charities in the manner prescribed in the scheme. The scheme also defines a member of the Sangh who should be a Swetambar Murti Poojak Jain Tapagachha ordinarily residing in the north of Matunga (G. I. P. Rly. Station) and on the South from Khodadad Circle of Dadar and upto Sion and on the West G. I. P. Railway siding and on the East from Wadala to Koliwada and of 18 years age. Such a person can become a member of the Sangh by making an application in the prescribed form and on paying an annual subscription of Re. 1 /- to the Trust. There is no dispute that the plaintiffs are valid members of the Trust being the Swetambar Murtipujak Jain Tapagachh. Clause 4 of the Scheme confers certain rights on the 'Swetamber Murti Pujak Jain'. They come to the Derasar for 'dev-darshan' and 'dev-pooja' and offering prayers and performing rites and ceremonies in accordance with the tenets, practices and usage followed by the Jains subject to such rules and regulations as the Trust may from time to time prescribe in that behalf. It is significant to note that Clause 4(a) has kept the temple or Derasar open for all Swetambar Murti Pujak Jains and has not restricted it to the members of the Trust only. There is no reference or mention of the use of Upashraya in clause 4(a) of the Scheme. There is no dispute that the Derasar is definitely from the Upashraya and clause 4(a) certainly refers to the use of the Derasar subject to such rules and regulations framed by the Trust from time to time. Such Rules and Regulations would certainly and obviously be for the purpose of smooth and convenient functioning of the Jain devotees who come to the temple for Darshan and worship of the Idols of the Tirthankars therein. Such Rules and Regulations cannot in any manner touch, affect or interfere with the Jain principles, tenets and practices. Such Rules and Regulations can be framed by the Trust in respect of putting some restrictions on time and hours for the temple to remain open for the devotees and also for the maintenance and security purposes. In the present proceedings we are concerned with the use of Upashraya building only. It would be relevant to refer to clause 41 of the Scheme which is reproduced below :
'41. The property known as Upashraya building shall be ordinarily utilised in the manner following :
The property shall be used for men and women according to the usage of Swetamber Murtipujak Jain Religion and/or lectures or discourses by Jain Sadhus as may be permitted by the Trustees and also for boys and girls and for meetings of the Sangh for pathsala, for lectures and discourses of Jain Sadhus as may be arranged by the Trustees from time to lime, library and for performing pushed and Samayak and other religious ceremonies by Jains. The property will also be used for such Jain Sadhus and other disciples who may be invited according to the resolution passed by a majority of the Trustees at their meetings. The said property will also be used in the manner aforesaid and in accordance with the rules and regulations made by the Trustees from time to time and also taking into consideration of the unusual circumstances which may not affect the religious principles.'
It would also be relevant to refer to clause No. 58 which confers powers on the thistles to prescribe 'reasonable rules and regulations'. Clause 58 reads as under :-
'58. The Trustees from time to time may prescribe such reasonable rules and regulations as they consider necessary or expedient for the Government and administration of the charities to be conducted under this scheme the management of the Trust properties and their conduct and business including the summoning of meeting and custody of securities and documents provided the same shall not be at variance or inconsistent with any of the provisions if these presents.'
8. I have carefully gone through the whole Scheme under which the Trust is functioning. It is crystal clear from the Scheme that the Trust is established for the management and administration of the charitable trust and the charities. The Trustees are empowered to manage and administer the Trust by framing such rules and regulations by passing resolutions in accordance with the Scheme in respect of the properties and for smooth and convenient functioning in the interest of the members and also the Swetamber Jains, who come to the temple for performing worship of the idols and also for the Darshan in the temple as also for taking Darshan of Sadhus, who come and stay in the Upashraya. As I have already stated hereinabove that the management and administration of the Trust properties and the charities only can become subject matter of such regulations and restrictions for the beneficial use of the properties. The Trust has to protect and secure the trust properties and the charities. The Trust has to maintain the properties and also to maintain proper accounts in the interest of the Trust. It is nowhere found in the Scheme that the Trust and the Trustees are enabled, much less empowered to frame any rules and regulations in the form of any resolutions or otherwise to prescribe or proscribe, permit or prohibit any form of religious practices, prayers, rites, ceremonies which are recognised and accepted as the religious principles, tenets, practices and usage followed by the Jains. The Trust has absolutely no power to alter or modify the manner or mode of the religious practices of any individual or any group amongst the Jains. Every Jain member of the Trust is entitled to use the property of the Trust for performing Pooja or worship either of the idol or the Guru in accordance with the Jain religion principles enshrined and accepted as universally established in the Jain Shastras or Scriptures. The Trust can make such rules and regulations by passing resolutions or otherwise only to the extent of managing and administering the Trust properties and charities within the frame work of the Jain Scriptures. The Trust cannot permit or allow any Jain member to perform Guru Pooja only in a particular manner and not in any other manner. Such Guru Darshan or Guru Vandana or Guru Pooja would wholly depend on the devotee and the Guru. There is nothing objectionable if a Jain member of the Trust performs Guru Pooja in accordance with his own Bhakti which, however, cannot be in the manner which is not accepted by the Jain religion or which is wholly against the Jain Shastra or tenets or practices. I do not find anything illegal or wrong or contrary to the Jain principles, if a devotee performs Guru Pooja in the manner of Navangi Pooja or Ekangi Pooja. If the Guru accepts such pooja, I do not find how the Trust can prevent or prohibit the Gurupooja in the manner the devotee does, which is acceptable to the Guru. It may be as is in our case that the Navangi Pooja of a Guru is being performed by a microscopic minority amongst the Jains, and it is not a universally accepted and established form of Guru Pooja and the Defendants have not pointed out any Jain Shastra or Scripture to show that such Navangi Gurupooja is not in accordance with the Jain religious tenets, practices and usage. It might be of a recent origin but such practice is prevalent and is in vogue may be for a small group amongst the Jains and if the Navangi Gurupooja is in accordance with the religious tenets, practices and usage followed by the Jains the Trust has no power to prevent or prohibit the same in the Upashraya. The impugned resolutions of the Trust are beyond its powers conferred by the Scheme. What is contemplated under clauses 4(a) and 41 of the Scheme is to have such rules and regulations in the form of resolutions or otherwise, only to regulate the hours or timings for use of the Upashray for Sadhus and that too for the convenience of the Jain Shravaks/Shravikas at large. For example, the trust can regulate and discipline the crowd by prescribing limited hours of visit, formation of proper queues, rest hours for the Sadhus and all such regulations will have to be framed in the best interest of the Jain devotees and for the convenience of the Gurus who should get some interval for 'gochari' and meals and rest and for performing their day-to-day functions and also for the purpose of meditation for higher achievements in accordance with the Jain Shastras. The Trustees also can frame such regulations, again in the best interest of the devotees, to make proper sitting or standing arrangement during the various religious functions, ceremonies or discourses in the Upashraya. All such clauses in the Scheme are to be read and understood to enable the Trust to serve the Jain community in consonance with Jain principles traditionally accepted. The organisation after all is the Trust and its Trustees are also the Trustees of the whole Jain Community to serve the community in accordance with the wishes of the majority. The Trust survives on the charities of the Jain community. According to me, neither clauses 4(a) and 41 nor any other clause enables or empowers the Trust to prevent or prohibit the Navangi Gurupooja in the Upashraya. They have also no right to allow only Ekangi Gurupooja in the Upashraya. According to me, the Trust cannot choose to invite only such Gurus who follow either Ekangi Guru Pooja way or Navangi Pooja way. The Trust has to treat all of them equal without any discrimination. It, however, can regulate the period and hours of visits so that proper discipline is maintained in the Upashraya. It can also in the present circumstances fix any one day of a week for the Navangi Gurupuja - devotees to avoid any inconvenience to others.
9. According to me, therefore, if the Navangi Gurupoojan practice not being in contravention or in breach of Jainism and it appears to be inconsonance generally with the tenets of the Jain religion, though not age old, or of ancient origin it cannot be prohibited by the Trust. It would be for the Jain Acharyas to pronounce their decision to accept or to reject such a practice of Navangi Guru Poojan. The Trust however, cannot impeach upon and cannot restrict, control, curtail or curb the rights of the Jain members to offer respect or reverence to their Guru in the manner which is not alien to the Jain religion. Not only as the Jains as a community having the faith in the Jainism but also being the Jain members of the Trust no such restrictions can be placed on the manner in which Gurupoojan is to be done. The trustees having passed the impugned resolutions putting total ban on the Navangi Poojan have virtually dismembered all such members who believe in Navangi Guru Poojan. The Trust by the impugned resolutions narrowed and shrunk the definition of a member of the trust to the extent of the Jains who perform Ekangi Gurupooja in the Pathshala. The Trust has permitted the membership of the trust only to such Jains who believe in Ekangi Gurupooja and who follow Ek Tithi calendar. This is an indirect method of restricting the Trust membership which cannot be permitted and which is not contemplated by the Scheme. The trust has no business to discriminate and divide its membership on such irrational basis.
10. There are ways and ways of worshiping the Gods and Gurus or Sadhus. Ordinarily the Jains who do not perform either Navangi or Ekangi Guru Pooja they show their respect and reverence to the Guru by folding their two hands and bowing their head before the Guru and also by touching the earth near the feet of the Guru three times. Some devotees actually prostrate in front of the Guru and pray for blessings. This is known amongst the Jains as 'Khamasana', three times reciting religious sutra appropriate for the occasion. Out of their devotion to the Guru they do what is called Dnyanpooja and put on the holy scriptures kept near the Guru what is called as Vaskshep and also put some money as donation. In response to this the Guru recites what is known as Mangalik and also gives blessings by way of putting Sandal Wood Powder (Vaskshep) on the head of the devotee. The male Gurus give Darshan and blessings to female devotees from a distance and similarly the female Sadhvis give Darshan and blessings to male devotees from a distance. This is the universally accepted practice of Gurupuja by the Jains. We cannot draw any such line amongst the Jains dividing them between two groups of those who follow Navangi Guru Poojan and those who observe Ekangi Guru Poojan and those who observe Be Tithi calendar and those who follow Ek Tithi calender. Not only the Jains cannot be divided on the basis of the practices and manners of following their religion the Trust also cannot divide its members on the basis of the aforesaid practice or manner followed by them. According to me, therefore the impugned resolutions are ultra vires the scheme governing the Trust. The said resolutions, are totally contrary to the Article 25 of the Constitution of India. The Trust has absolutely no right and power to restrict, curb and curtail manner and practice followed by the members within the four corners of the Jain religion. According to me, the impugned resolutions are also ultra vires the aforesaid two Articles of the Constitution of India. In view of the discussion above I hold and declare that the impugned Resolutions are not only illegal but are null and void and are ultra vires the scheme governing the Trust and being in contravention of the Article 25 of the Constitution of India. I also clarify that this is not a prima facie view of mine but is based on my considered opinion judicially arrived on the basis of the material on record and the Jain scriptures and Jain philosophy. Nothing more was necessary for me to come to the conclusion.
11. The learned Trial Judge has also considered the facts and the law placed before him and according to me, he has rightly come to findings and conclusions and has rightly granted the Notice of Motion in terms of prayer clauses a(i), a(ii) and a(iii). I do not find any illegality or perversity in the impugned Judgment and Order of the learned Judge. There is absolutely no infirmity or illegality in the impugned Judgment. I also agree with the learned Judge that the balance of convenience would be in favour of the Plaintiffs and there would not be any prejudice caused to those who do not follow the Navangi Gurupooja practice as they will not be and they cannot be compelled to perform Navangi Guru Poojan as the Navangi Gurupooja Group cannot be compelled to follow Ekangi Gurupooja. Both the groups can continue to follow their own manners and the Trust cannot intervene to side by one of the groups. The Trust cannot favour one and disfavour the other. The Trust cannot convert itself into a Trust of only Ekangi Gurupooja followers. It is therefore clear that the injunction or the interim orders granted by the Trial Court are legal and just in the given circumstances and needs no interference by this Court.
12. Having dealt with the main matter at great length, after hearing both the learned Counsel at great length, I now set down to deal with the preliminary points raised by the Defendants in respect of the maintainability of the suit on the following three issues. 1 am also required to deal with the precedents cited by both the learned Counsel.
(a) The plaintiffs have not followed Order 1 Rule 8 of the C. P. C. and therefore the suit deserves to be dismissed at the threshold. It is true that the plaintiffs have averred in the Plaint that they were filing the suit in their representative capacity to challenge the impugned resolutions passed by the Trust. It is also true that the plaintiffs have not followed the aforesaid Order I Rule 8 of the C. P. C. According to me, the plaintiffs are entitled to challenge the legality and validity of the impugned resolutions passed by the Trust as the members of the Trust, in their individual capacity also. The plaintiffs have challenged the impugned resolutions as their right to follow the Jain principles, Jain faith and Jain tenets in the manner which they think it proper within the four corners of the religion and also in accordance with the established and accepted practice. It is nobody's case that Navangi Guru Pooja is prohibited by the Jain Shastra or is a practice which is non Jain in nature, As the members of the Trust they have challenged the vires of the impugned resolutions and the suit need not be exactly in the representative capacity that they have so mentioned. According to me, their right to file the suit can also be found under Section 92 of the C. P. C. The suit therefore cannot be held to be not maintainable, to be dismissed at the threshold only on the ground that Order I Rule 8 of the C. P. C. is not followed. Any member could have filed such a suit in his individual capacity to challenge legality and validity of the impugned resolutions not only in the context of the scheme and Section 92 of the C. P. C. but also under the Constitution of India.
(b) The second preliminary ground urged by Shri Chagla for the Defendants was - 'the maintainability of the suit under Section 9 of the C. P. C. According to him, the dispute of the plaintiffs is not of civil nature but it is relating to the religious rites or ceremonies. I do not agree with the said contention of the learned Counsel. The Plaintiffs being the members of the Trust have every right to challenge the resolutions and decisions of the Trust if they are in breach of the governing scheme and therefore they have every right to come to a Civil Court and to complain that their civil right under the scheme was violated. Merely because the Trust is a religious denomination, the members cannot be said to have ceased to have their civil right qua the trust within the frame work of the scheme. The Plaintiffs have rightly filed the present suit complaining of violation of their civil right under the scheme. The plaintiffs' right is of civil nature undoubtedly, and therefore, the suit has been rightly entertained under Section 9 of the C. P. C.
(c) The third preliminary objection of the defendants was - 'the bar of sections 50 and 51 of the Bombay Public Trusts Act, 1950'. Briefly it was contended by Shri Chagla that the complain made by the plaintiffs is of religious nature relating to the Jain religion and, therefore, the suit cannot be entertained in violation of sections 50 and 51 of the Bombay Public Trusts Act. This issue has already been concluded upto the Supreme Court in the very same proceedings. I therefore do not find any substance in this preliminary point also.
13. Further 1 must also mention that the preliminary issues regarding maintainability of the suit in the context of sections 50 and 51 of the Bombay Public Trusts Act read with section 9A of the Civil Procedure Code were raised before me though the same were already earlier decided by the learned Judge of the City Civil Court by a reasoned and exhaustive Order dated 25.9.1998. The learned Judge had negatived the aforesaid preliminary contentions raised by the defendants. The learned Judge had followed the Judgments of the Division Benches of this High Court in the following two cases :-
1. Amirchand v. Vasant,.
2. Hasmukh & Ors. v. Indian Cancer Society,
The learned Judge has rightly followed the following ratio of the unreported Judgment :
'The decision proceeds on the principles that the common right available to general litigant to file a suit to establish the right is not taken away by the provisions of sections 50 and 51 of the Bombay Public Trusts Act but those sections merely are in addition to the remedy available to a litigant to file suit against the Public Trust.'
In my opinion the learned Judge has rightly held that sections 50 and 51 of the Bombay Public Trusts Act are enabling provisions and not disabling in nature. It further appears from the record that the defendants have earlier raised a point that the aforesaid preliminary issues should be decided first in view of the mandate of section 9A of the C. P. C. It further appears that the Trial Court had passed an order on 16.9.1998 holding that the determination of the issue of jurisdiction would be decided along with the hearing of the suit. Even that order was carried before this Court by way of a Writ Petition which was disposed of by an Order dated 23.9.1998 by the learned Single Judge of this Court [A. V. Savant, J.I. It appears from the order that both the parties agreed before the Court for hearing of the notice of motion. It further appears that all the contentions including the preliminary issues were kept open. The Order passed by the Trial Court on 25.9.1998 was also carried to this High Court by way of Writ Petition, (Writ Petition No. 5238 of 1998). The learned Single Judge of this Court (Smt. K. K. Baam. J.) by her Order dated 19.4.1999 was pleased to uphold the order passed by the Trial Court and she was pleased to dismiss the Writ Petition holding that the suit did not relate to the Trust property but to the rights of the Respondents (plaintiffs) to worship which they were exercising over a period of time. The learned Judge further held that for the purpose of exercising the rights of worship there was no question of obtaining the permission of the Charity Commissioner under section 51 of the Bombay Public Trusts Act. The learned Judge however directed the Respondents (Plaintiffs) to join the Charity Commissioner as a party defendant. This Order was carried further in the Supreme Court by filing SLP which came to be dismissed summarily on 12.5.1999.
14. From the aforesaid developments on the issue of the preliminary points regarding the Jurisdiction of the Court and the maintainability of the suit must come to an end. The very same points were once again agitated by Shri Chagla for the defendants. In view of the aforesaid law clearly laid down by this Court, I cannot take any other different view as I am in respectful agreement with the view taken by the learned Single Judge (Smt. K. K. Baam, J.]. I do not find any infirmity or illegality in the order passed by the Trial Judge (R. B. Malik) on the preliminary issues. It appears that unfortunately the defendants have made it a prestige point out of their ego and are therefore litigating on each and every small point at every stage upto the Supreme Court, though technically they are entitled to do so.
15. Shri Aney the learned counsel for the plaintiffs has relied on the following 11 Judgments :
1. : [1954]1SCR1005 2. AIR 1954 Cal. 93. AIR 1972 SC 15684. : 1977CriLJ551 5. : (1990)2CALLT212(HC) 6. : [1952]1SCR849 7. : AIR1973All281 8. : [1996]2SCR739 9. : AIR1987Mad187 10. 1998 (1) Mh. L. J. 13411. : AIR1995SC2001 .
I may mention here that before I set down to deliver the present Judgment I had carefully read all the aforesaid Judgments and also the Judgments cited by Shri Chagla, the learned Counsel for the defendants (appellants). I have respectfully followed the underlying principles and ratios of the Judgments cited before me.
16. In support of his contention that the plaintiffs right to perform Navangi Guru Pooja form their right to freely profess, practice and propagate their religion and that they were well within the parameters of Articles 25 of the Constitution of India. The ratio of the Judgment is summarised in the head note (g) of the Judgment of the Supreme Court in the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, I reproduce the same as under :
'(g) Constitution of India, Art. 25 - Religion, meaning of - [Words and phrases - 'Religion').
Religion is a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conductive to their spiritual well being, but it will not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress.'
According to me, the aforesaid Judgment of the Supreme Court fully supports the case of the Plaintiffs to perform Navangi Guru Pooja and to observe Be Tithi, both, from part of the Jain religion and it is the form or manner of practice of their faith in the religion. As already held by me the Trust has no right to put restrictions on such a practice followed by the Plaintiffs and all other Jams having their faith in the manner of performing Guru Pooja.
17. In the case of Masud Alam and Ors. v. Commissioner of Police & Anr., the following observations of the Division Bench of our High Court in the case of State of Bombay v. Narasu. Appa Mali, are quoted :-
Thus say the Chief Justice Chagla :
'Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health, then religious practices must give way before the good of the people of the State as a whole.'
In our case the religious practice of Navangi Guru Pooja does not in any way run counter to the public order, morality or health and it does not in any way cause any breach or harm to the Trust and those who follow Ekangi Guru Pooja in the Jain Community at large.
18. Shri Aney has relied on the following paragraph No. 12 of the Judgment in the case of His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swamtar etc. v. State of Tamil Nadu.-
'12. This Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, has summarised the position in law as follows (pages 531 and 532).
'The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commr. Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamtar; Jagannath Ramanuj Das v. State of Orissa : [1958]1SCR895 ; Durgah Committee, Ajmer v. Syed Hussain Alf. and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.'
The ratio of the judgment which applies in our case is that 'Worshipers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.' Where performing Navangi Guru Pooja and following Be Tithi Calender is a part of the religious practice followed by some of the Jain people, and therefore, such practice or manner of performing Guru Pooja is wholly protected by the Article 25 of the Constitution and if that is so the Trust cannot assail or prohibit such form of Navangi Guru Pooja.
19. The fourth Judgment cited by the learned Counsel for the Plaintiffs is reported in : 1977CriLJ551 , which according to me has no application to the facts of the present case as in our case there is no question of propagation of any religion or conversion from one religion to another religion. Similarly the Judgment cited by the learned Counsel reported in : (1990)2CALLT212(HC) has no application to our case. The last judgment cited by Shri Aney on the point of religious practices is reported at in the case of War Hari Shastri and others v. Shri Badrinath Temple Committee,. Shri Aney sought support from the following observations of the Supreme Court in paragraphs 20 and 21 :-
'.......that the temple is a public place of worship of the Hindus, the right of entrance into the Temple for purposes of darshan or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved.'
Shri Chagla on the other hand sought support from the observations in paragraph 21 :-
'This right of entry into a public Temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public Temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the Temple, e.g. the inner sanctuary or as it is said the 'Holy of Holies' where the deity is actually located.'
There is absolutely no quarrel or dispute about both the aforesaid observations and I have followed them in my Judgment. As far as the Navangi Guru Pooja in Upashraya of the Trust is concerned the first observation would apply while the power of the Trust to regulate the access and entry in the Upashraya to the extend of timings and hours and visits the Trust can always prescribe such reasonable hours of visits for the smooth functioning of the Upashraya and in consultation with Sadhus or Gurus for whose Darshan the devotees visit. This right however does not mean and include the right or power of the Trustees to prohibit those Gurus or devotees who believe in Navangi Guru Pooja and who follow Be Tithi Calender. To do so would be to interfere with the right of such Jain people in violation of Article 25 of the Constitution of India as also such resolutions would not be within the four corners of the Scheme governing the Trust. The other Judgment which is cited by Shri Aney is relating to the Order I Rule 8 of the C. P. C. reported in : AIR1973All281 , the following observations are relevant :
'It is well settled that omission to comply with the provisions of Order I, Rule 8 is not a mere irregularity but goes to the root of the matter and if compliance of those provisions has not been made the decree would not be deemed to have been passed in a representative capacity.'
20. The next judgment on the point of Order I Rule 8 of the C. P. C. at in the case of Singhai Lal Chand Jain (dead) v. Rashtriya Swayam Sewak Sangh, Panna & Ors... The following paragraph is required to be reproduced to appreciate the law on the point :
'8. Procedure is the hand maid to the substantive Justice. The suit was laid against the Sangh represented by the Manager, Mr. Gorelal Soni, the President. Shiv Behari Srivastava, a practising Advocate also a member who is no other than a Head Master of a School, three of them had jointly filed the written statement with the defence available to them. The Trial Court had proceeded on that basis. After framing the appropriate issues, the Trial Court had accepted the plea of the defendants and dismissed the suit. On appeal when the correctness thereof was canvassed the respondents defended the action. The High Court on consideration of the evidence did not accept the plea of the Sangh and accordingly, granted a decree. The matter did not rest there, they came in Appeal by way of special leave which was argued by one of the most eminent members of the Bar on behalf of the Sangh. The leave was refused by this Court. Thus it can be concluded that the Sangh was properly represented by the President, the Manager who was at the relevant time in office on behalf of the Sangh and also member of the Sangh who was no other than a Head Master and a practising Advocate as President. The High Court, after hearing counsel on either side, considered the case and decreed the suit. With dismissal of the special leave petition by this Court, the decree became final. Therefore, it cannot be said to be a collusive suit nor a shadow of negligence is traceable so as to treat the decree a nullity. It is true that no permission of the Court was taken to be sued in a representative capacity by or on behalf of the Sangh. But clause (b) of Order I, Rule 8 indicates that it may sue or be sued, or may defend such suit on behalf of or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.'
In my opinion the plaintiffs have protected the interest of similarly situated Jain people following the practice of Navangi Guru Pooja. There is neither negligence nor collusion between the parties. I have decided the question of legality, validity and virus of the impugned resolutions finally in this appeal as to decide the issue nothing more is required and no oral evidence is necessary. Both sides have addressed me on the issue at length with equal ability. The position according to me, is absolutely clear beyond any manner of doubt on the issue of legality, validity and virus of the impugned resolutions, which according to me, are beyond the scope of the Trust Scheme and beyond the protection given under Article 25 of the Constitution of India.
21. Another Judgment on the aforesaid point relied on and cited by Shri Aney, is the case of The Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and others v. Nattamal K. S. Ellappa Mudaliar and Ors.,. Curiously enough both the learned counsel have relied on the aforesaid Judgment and it supports both of them in part. According to me, the learned Judge has correctly laid down the law and I am in respectful agreement with the same. Paragraph 9 of the said Judgment is required to be reproduced below :
'9. Order 1, Rule 8, of the Code of Civil Procedure enables one or more persons to sue on behalf of numerous persons having the same interest with the permission of the Court, if an individual seeks to advance the claim of a group of persons, he is enable to do so, by virtue of the provisions of O. I., R. 8 of the P. C. but the procedure prescribed therein should be strictly followed. The benefit of the rule is available only to persons who fulfil the requirements thereof. It is well known that there is a clear legislative concern in the entire Code indicating the Court should make judicial orders only after hearing the persons likely to be affected by any decision in any cause. If a person is permitted to sue as a representative of another, or a group of persons, it is a matter of far-reaching effect as it is likely to affect the interests of those who may not participate at the hearing of the suit. Such persons are obviously entitled to put forth their objections to the filing of the suit and to the capacity of the representative who seeks either to be the plaintiff or defendant and even to the merits of the cause. All that will be possible only if the party sought to be represented is given an opportunity to raise objection, if any. It is only in accordance with the said statutory principle, the procedure in O. I, Rule 8 of the P. C. has been prescribed. The object of the rule is to avoid unnecessary tedium and expense of litigation and to give a binding force to the decision which may be ultimately passed in the suit. A person cannot seek to advance the claims of a group of persons or community without adopting the procedure under O. 1, Rule 8 of the C.P.C., if the relief is prayed for only on the basis of the rights of the community as such. It is no doubt true that O. I. R. 8 of the C.P.C. presupposes that each one of the numerous persons by himself has a right of suit. If a person himself has no such right to sue, he cannot be permitted to sue on behalf of the others who have a right. But, the distinction has to be maintained between cases where the individual puts forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the suit. If it is the former, the individual is not 'debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right. If it is the latter, the procedure under O. I. R. 8 of the C. P. C. has to be followed and without doing so, no relief could be granted to the individual concerned.'
In our case though the plaintiffs have made an averment in their plaint that they were filing the suit in their representative capacity it is clear that the plaintiffs have also asserted their own right which also happens to be the right of similarly placed other Jain individuals like the plaintiffs in the Jain Community. The plaintiffs have challenged the legality, validity and virus of the impugned resolutions which have adversely and prejudicially affected their right as members of the Trust and also under Article 25 of the Constitution of India. The definition between two clauses of case made by the learned Judge is significant to be borne in mind. The last in the compilation of the Judgments is given by the learned Single Judge of this High Court [R. G. Vaidyanatha, J.] in the case of National Sports Club of India & Ors. v. Nandlal Dwarkadas Chhabria &. Ors.. A very well reasoned and exhaustive Judgment of the learned Judge answers the point raised on behalf of the defendants. Paragraphs 9 and 10 of the said Judgment are required to be reproduced below :
'9. The learned counsel for the Appellant Club referred to many allegations in the plaint and pointed out that the Plaintiffs are espousing the cause of all the Life Members and therefore, they should have filed a suit in a representative capacity under Order 1, Rule 8 of the Civil Procedure Code, otherwise the suit is not maintainable.
In fact, the plaint had been filed in a representative capacity, but subsequently that prayer is given up and now the plaintiffs have claimed relief only for themselves. It may be the relief of declaration if granted may apply to other life members. But we are not concerned about it. The question is whether one single individual can file a suit to protect his right though he may be espousing a public cause. For example, if a public passage is affected, the person who has a right to pass through that passage may individually file a suit for declaration or injunction, regarding his right to use that passage. He is not bound to file a suit in a representative capacity to protect the interest of entire community.
Order 1, Rule 8 of the Civil Procedure Code nowhere says that one individual cannot file a suit in respect of a right which may happen to be a public right or a right affecting many persons.
Order 1, Rule 8 of the Civil Procedure Code simply says that one person may sue or defend on behalf of all in same interest, as rightly pointed by the learned Trial Court, this is only an enabling right given to one individual that if he wants he can file a suit in a representative capacity with the leave of the Court. It does not say that no suit shall be maintainable in respect of a right of affecting many persons, if a suit is filed by one individual.
10. The learned Counsel for the Appellants/Club invited my attention to two authorities on the point.
In Diwakar Shrivastava v. State of Madhya Pradesh, it was a case of Writ Petition filed by some persons regarding admission to medical college and challenging admission of some candidates belonging to S. C. and S. T. by relaxing certain conditions. Those candidates belonging to S. C. and S. T. categories were not impleaded in Writ Petition. The Supreme Court observed that without those persons being impleaded, no relief can be granted since the parties to be adversely affected by the judgment of the Court were not before the Court.
Then observation is made in para 1 of the judgment that when a general question arises involving larger number of persons, the Court may, in appropriate cases permit few of them to be sued in a representative capacity. In that particular case the Supreme Court observed that no relief can be granted when the parties to be affected are not before the Court. This decision has no bearing on the point under consideration, whether the suit in an individual capacity is maintainable or not, when the question involved may affect others. In fact, this is not a case whether the decision given in this suit will adversely affect other life members. The Circulars were issued in 1986 and now we are in 1997 and all other life members have not taken any action so far. Therefore, there is no question of any decision in this suit being adversely affecting other life members. The plaintiffs are not questioning any privilege granted to other members, so that the affected party should be made a party. The Plaintiffs' case is that the first Defendant club has no power to levy subscription fee on a life members.
In Lallan Prasad Chunnilal Yadav v. S. Ramamurthi, it is observed that for a representative suit the Court's permission under Order 1, Rule 8 is mandatory. The learned Counsel for the Club has relied on this observation. What the Supreme Court observed is that for an earlier decision to operate as res judicata in a subsequent suit, then in the previous suit permission should have been taken under Order 1, Rule 8 of the Civil Procedure Code which is mandatory to make that judgment being binding on all others. In fact that was a case where the previous suit had been filed by some persons regarding certain reliefs. In a subsequent suit, the same issue came up for consideration. The question was whether the decision in the previous suit is res judicata in the subsequent suit. The Supreme Court pointed out that in the earlier suit, no permission had been taken under Order 1, Rule 8 of the Civil Procedure Code, and therefore it was not a representative suit in the eye of law and hence, the earlier decision does not operate as res judicata in the subsequent suit- Instead of supporting arguments canvassed by Mr. Bulchandanl, it supports my view that filing a representative suit under Order 1, Rule 8 of the Civil Procedure Code is not compulsory and person can file suit individually. The Supreme Court did not say that the previous suit was not maintainable, but is only observed that the judgment in that suit will not be binding on the subsequent suit, since the earlier suit was not under Order 1, Rule 8 of the Civil Procedure Code.
For example, after the disposal of this suit, some other life members may file another suit against the Club, then the question will be whether the decision in this suit will be res judicata in the subsequent suit. Then, the above judgment of the Apex Court comes to the rescue and it can be said that the finding in this suit will not be res judicata in the subsequent suit, since the present suit is not filed as a representative suit under Order 1, Rule 8 of the Civil Procedure Code.
Hence, in my view there is no merit in the arguments that the present suit is not maintainable, unless it is filed as a representative suit under Order 1. Rule 8 of the Civil Procedure Code. Point No. 1 is answered accordingly.'
I am in respectful agreement with the aforesaid Judgment of the learned Judge. The ratio of the Judgment is in fact binding on me. In our case the plaintiffs have filed the suit to challenge the legality, validity and virus of the impugned resolutions for themselves and that may also affect others having some interest. It therefore cannot be said that the plaintiffs have no right to file such a suit without complying with the provisions of Order 1, Rule 8 of the Civil Procedure Code. As rightly held by the learned Judge that filing a representative suit under Order I, Rule 8 is not compulsory and person can file suit individually.
22. On the point of section 9 of the Civil Procedure Code regarding the nature of the cause of action Shri Aney has relied on in the case of Most Rev. P. M. A. M. Metropolitan and others v. Moron Mar Marthoma and Anr., The following observations in paragraphs 27, 30 and 31 on this point are significant :
'27........ One of the basic principles of law is that every right has a remedy. Ubi jus ibi remedium is the well known maxim. Every civil suit is cognisable unless it is barred, there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue Smt. Ganga Bai v. Vijay Kumar,. The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the officer or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word 'shall' and the expression, all suits of a civil nature unless expressly or impliedly barred.
30........ A suit for declaration of such a right would be maintainable under section 9. Not only because it is claim to an office but also because there is no other forum where such dispute can be resolved. If a dispute arises whether a particular religious shrine has ceased to be so due to its anti religion activities then the followers of that religion or belief and faith cannot be denied the right to approach the Court. Explanation I is not restrictive of the right Or matters pertaining to religion. It only removes the doubt to enable the Courts to entertain suits where dispute about religious office is involved- The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Episcopal. But the Court may refrain from adjudicating upon purely religious matters as it may be handicapped to enter into the hazardous, hemisphere of religion. Maintainability of the suit should not be confused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation I could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the expression is contested used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to to be a suit cognisable under section 9, The argument is not available on facts but that shall be adverted later. Suffice it to mention that in Ugamsingh : [1971]2SCR836 (supra) the plaintiffs' claim was that they were entitled to worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to tenets observed by the Digambaries Sect of the Jain religion. It was held that from the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship. If the Digambaries have a right to worship at the temple, the attempt of the Swetambaries to put Chakshus or to place Dhwajad and or Kalesh in accordance with their tenets and to claim that the idol is a Swetamber idol was to preclude the Digambaries from exercising their right to worship at the temple, with respect to which a civil suit is maintainable under section 9, of the Civil Procedure Code. The scope of the section was thus expanded to include even right to worship.
31. Religion is the belief which binds spiritual nature of men to supernatural being. It includes worship, belief, faith, devotion etc. and extends to rituals. Religious rights is the right of a person believing in a particular faith to practise it, preach it and profess it. It is civil in nature. The dispute about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence.'
23. As I have already held that the plaintiffs' right under Article 25 of the Constitution of India, as Citizen of this Country and also the members of the Trust they have a civil right to undo the wrong done by the Trust by passing the impugned resolutions adversely and prejudicially affecting the civil rights of the plaintiffs and therefore, the Suit is maintainable and there is no bar to section 9 of the C. P. C.
24. As against the aforesaid Judgments cited by Shri Aney for the Plaintiffs Shri Chagla has also handed over a compilation of 12 Judgments. The first of them is at Indian Law Reports 1976 page 1905. According to Shri Chagla this Judgment lays down a ratio : 'It is not province or duty of the Court to pronounce on the truth of religious tenents, not to regulate religious rites or ceremonies. The protection of the law in religious matters is confined so far as the remedies in the Civil Court are concerned to the protection of religious property or religious office or religious worship. The Court will not decide questions of religious rights or ceremonies nor will it pronounce on any religious doctrine unless it is necessary to do so in order to determine rights to property. 'I am afraid there is no religious rights in respect of any religious tenets or rites are under challenged or are questioned and are to be decided. This judgment therefore is of no help to Shri Chagla.
25. The next judgment relied on by Shri Chagla is in the case of Sri Sinha Ramanuja Jeer alias Sri Vanamamalai Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors., There is absolutely no quarrel with the principles which are evolved in the said Judgment. In the present case the civil rights of the members of the trust are the subject matter of the Suit. The Suit before the Supreme Court was for declaration of religious honours or privileges in temples. This case also does not help Shri Chagla's case any further.
26. The next Judgment on which Shri Chagla has placed his reliance is in the case of The Assistant Commissioner. Hindu Religious and Charitable Endowment, Salem and Ors. v. Nattamal K. S. Ellappa Mudaliar and Ors. According to Shri Chagla the Court cannot interfere with the internal management and affairs of the Trust and that the resolutions passed by majority in the meeting will have to be followed by minority. There is absolutely no quarrel with the proposition of law. In the present case the plaintiffs have called upon the Civil Court to decide legality, validity and virus of the impugned resolutions passed by the Trust. The resolutions are beyond the powers of the Trust. Even if it is passed by an absolute majority it cannot be said that no one has right to challenge its legality, validity and virus. If the Trust had no right, power and jurisdiction to travel beyond the scheme such a resolution can always be challenged in the court of law. The Trust is entitled to pass any resolution by majority within the four corners of the scheme and the minority will have to follow such a resolution.
27. The next judgment on which Shri Chagla has placed reliance is the case of Cotton Corporation of India Limited v. United Industrial Bank Limited & Ors.,. The grievance made by Shri Chagla in the present case is that the Trial Court had granted an interim relief which cannot be granted finally. I do not agree with the said submission of Shri Chagla, as in our case the Plaintiffs have challenged the legality, validity and virus of the impugned resolutions passed by the Trust and they have sought declaration that such resolutions are null and void. In such a Suit it is open to a party to pray for interim orders to the effect of restricting the defendants from enforcing or implementing such a resolution during the pendency of the suit. From the interim prayers in the Notice of Motion it is crystal clear that all the prayers can very well be granted at the interim stage if the plaintiffs succeed in establishing a very strong prima facie case in their favour and if the Court comes to a conclusion prima facie that the Impugned resolutions were beyond the powers of the Trust the Civil Court was well within its jurisdiction to grant appropriate Interim orders and I do not see any wrong committed by the Trial Court. If the final result of the suit would be to permanently injecting the Defendants from enforcing and implementing the impugned resolutions I fail to understand why the Trial Court cannot temporarily grant such an injunction. I see no substance in the submission of Shri Chagla on that point also.
28. The next judgment relied on by Shri Chagla is in the case of Sarwar Husain and Ors. v. Additional Civil Judge, (J. S. C. S.) Moradabad & Ors.,. The facts in the present case are totally different from our case. In our case the Plaintiffs are not at all trying to interfere with the rights of the Defendants and others who want to perform Ekangi Guru Pooja.
29. The next Judgment cited by Shri Chagla in the case of Vadivel Mudaliar and Anr. v. Pachianna Gounder,. There is no quarrel with the principle laid down by the Judge that order of interim injunction can be granted on prima facie case made out by the Plaintiffs and that the Trial Court should atleast prima facie discuss the documents and affidavits filed and it should not merely refer the documents and the affidavits. In the facts of our case Trial Court has taken all pains to refer to the pleadings and the whole case of both the parties. There is no such infirmity left by the learned Judge in his Order.
30. The next Judgment relied on by Shri Chagla is the case of Kanbi Manji Abji and Ors. u. Kanbi Vaghji Mavji and Ors., The facts of the aforesaid case before the Supreme Court were totally different from the facts in our case. In that case the Suit was filed claiming right to have idols and portraits in dormitory, to read books and in pith and substance seeking alteration in scheme of 'Trust', with object to establish superiority of their 'Sect'. If such was the nature of the suit obviously it was barred under section 50 of the B. P. T. Act. The Supreme Court in paragraph 6 of its Judgment has held as under :-
'6. We have examined the contents of the plaint and also the reliefs claimed therein. By claiming a right to have the idols and portraits in the Dharamshala hall and also the right to read the books propounded by the followers of Abji Bapa, the respondents-plaintiffs in pith and substance are asking for alterations in the scheme of the Trust already settled. In any case, the right of trustees to decide the place where devotees would recite the scriptures and also the place where the idols and portraits are to be installed has been questioned in the suit. The respondents-plaintiffs are indirectly trying to interfere with the management of the temple. The main purpose of the suit filed by the followers of Abji Bapa is to establish the superiority of their sect and impose their way of thinking and worship in the management of the temple and as a consequence in the administration of the Trust. In this view of the matter, there is no escape from the finding that the suit falls within the purview of section 50 of the Act, and as such the Trial Court rightly dismissed the same.'
It is thus clear that in our case the Plaintiffs have tried to establish their right to perform Navangi Guru Pooja. They have merely sought a declaration that they as the members of the Trust as Jains have an equal right to follow their own manner of performing Guru Pooja. They have nowhere whispered that Ekangi Pooja was not permissible or by in any manner or that they have nowhere tried to establish superiority of their claim over the Ekangi Guru Pooja. On the contrary they have accepted that the majority amongst the Jain perform Ekangi Guru Pooja. The said judgment is also of no help to Shri Chagla.
31. Shri Chagla has also cited a Judgment in the case of State of Gujarat v. Shantilal Mangaldas and Ors., in support of his submission that if any manner is prescribed under the statute to be followed to do a certain act in that case such manner should be followed. There is absolutely no quarrel with the said proposition of law which is very well established and there was absolutely no dispute about the same. I however fail to understand how this case gives help to Shri Chagla.
32. To be fair to both the learned Counsel and to satisfy my own conscience above all, I have taken pains to refer to all the aforesaid judgments. According to me, I have followed all of them in my Judgment and I have adhered to the principles laid down therein and their ratios in the context of the facts and circumstances of the case before me.
33. Apart from the case law discussed by me hereinabove I have myself considered the issue from different angles not posed by either Counsel. But even logically the concept of Navangi Guru Pooja does not stand the test of the religion. The ultimate goal or achievement of the Jain Dharm is Mukti or Moksha. Briefly stated it is the last aim of the Penance undertaken by the Jain Acharyas or Sadhus to liberate the Soul from the body forever so that the Soul never returns in body in any form and achieves Mukti from the wheel or circle of life and death. The Soul gets freedom from the bondage of Karma and never, never appears in any form on this earth or in this Sansar or the worldly life. If the liberation from the body is the ultimate aim of the Dharma. I fail to understand why any Acharya or Sadhu should insist in his life time that his body should be worshipped at nine points or even one point. To show respect or reverence by bowing down before a Jain Sadhu or Acharya is altogether different from worshipping him like an idol of a Tirthankar who had acquired Kewaldnyan and reached the ultimate stage of Moksha. There is no equation between the two. While in the process of getting the Soul detached from the body forever one cannot remain attached with the body and insist to offer his body for worship. If the Jain Acharyas and Sadhus/Sadhvis are restrained from wearing any good and colourful clothes or any ornaments on the body as a part of their renunciation of the temporal affairs, how body of such an Acharya or Sadhu/ Sadhvi can be allowed to be worshiped in that sense It would be an absolute anathema to the Jain philosophy or Dharma-tirtha propounded by the Tirthankaras. There appears to be a great dichotomy and riddle which the great and learned Jain Acharyas and Upadhyayas have to resolve in their Dharma Sabha or Dharma Sansad to be specially convened for this purpose. The Trust and the Trustees as Shrawaks or Sharwikas cannot by themselves decide such issues. The Trust should take lead in this direction to avoid further fragmentation of Jain-mind.
34. The net final result is the dismissal of the present Appeal.
35. In view of the main final Order dismissing the Appeal the Civil Application No. 6143 of 1991 for Stay of the impugned Order dated 27th July. 1999 in Notice of Motion No. 3120 of 1998 in Suit No. 3741 of 1988 also stands dismissed. In these circumstances there will be no order as to costs.
36. Certified copy of this Judgment and Order is expedited.
37. All concerned to act on ordinary copy of this Order duly authenticated by the Sheristedar of this Court.
38. At the request of Shri Pande, the learned Counsel for the Appellants the order is stayed for 12 weeks.
39. Shri Pande also prays for a direction to expedite the hearing of the main Suit. The Trial Court is directed to hear and dispose of the Suit finally by December, 2000.