Raghunandan Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
service rules of self supporting (funded) court of wards temples under control and superintendence of devasthan depart' ment of rajasthan, 1959 - rules. 9 and 24--petitioner attaining age of 65 yrs.--held, he is not entitled to perform or supervise pooja of temple and (ii) courts committed no illegality in placing reliance on rr. 9 and 24.;after attaining the age of superannuation, he has no authority to perform or to supervise 'pooja' in two disputed temples. indisputably, the plaintiff revisionist has attained the age of 65 years, therefore, under rule 24 of the said rules, he is not entitled either to perform or to supervise 'pooja' in these two temples.;this rule as well as rule 24 are applicable to these two temples and an argument contrary to it is not acceptable. i am fully satisfied that both the courts below have committed no illegality or irregularity in placing reliance on rule 9 and rule 24 of the rules of 1959.;(b) civil procedure code - section 115 and order 39 and 1 and 2--temporary injunction--both courts exercised discretion judicially--order is neither arbitrary nor perverse--held, it requires no interference in revisional jurisdiction.;both the courts below have refuted temporary injunction in exercise of its judicial discretion. the orders impugned refusing temporary injunction by both the courts below cannot be said to be perverse, arbitrary, capricious or against any sound principle of law, hence, these orders do not require interference in the revisional jurisdiction.;revision dismissed - - prakash tatla, learned counsel for the revisionist as well as learned counsel mr. i would like to examine the argument advanced by the learned counsel for the revisionist to the effect that the rules of 1959, which have been relied upon by both the courts below, have no statutory force, hence, the orders impugned passed by both the courts below are without jurisdiction. prakash tatia, learned counsel for the revisionist argued that the status of the plaintiff revisionist is that of a 'sevayat' and not of a 'pujari'.in my humble opinion, from the averments made in the plaint and the nature of duties alleged to be performed by the plaintiff revisionist fell within the definition of 'pujari' as contemplated under rule 9 of the rules of 1959. it is further evident from the provisions of rule 9 of the aforesaid rules that this rule as well as rule 24 are applicable to these two temples and an argument contrary to it is not acceptable. i am fully satisfied that both the courts below have committed no illegality or irregularity in placing reliance on rule 9 and rule 24 of the rules of 1959. 15. the learned counsel for the opposite party devasthan department has placed before me a notification issued by the state government in which both these temples are placed under the supervision of devasthan department in the category of self supporting (funded) temples of rajasthan state. 16. it is well to rember that the rulers of erstwhile indian states exercised sovereign powers legislative, executive and judicial. 20. in my humble opinion, discretion exercised by both the courts below refusing temporary injunction after analytical discussion of the material on record cannot be interferred by this court on mere jurisdictional error as contemplated under clauses (a) (b) and (c) of sub-section (1) of section 115, cpc unless it is further shown that if the order impugned is allowed to stand it would occasion either failure of justice or irreparable injury to the revisionist. i am fully satisfied that if the orders impugned are allowed to stand it would neither occasion a failure of justice nor it would cause any irreparable injury to the plaintiff revisionist.r.r. yadav, j.1. the present revisionist filed a suit for permanent injunction along with an application under order 39, rules 1 and 2, cpc on the ground inter alia that in district udaipur, there are two temples known as jagdish mandir and jawan swaroop behari mandir. both these temples were constructed by ex ruler of udaipur in vikram samvat 1709 and 1882 respectively. shri sunder ram was appointed as sevayat and pujari of jagdish temple, which was hereditary in character. shri sunder ram remained pujari of this temple till his life time and after his death his successors became pujari of this temple. similar facts are alleged in respect of jawan swaroop behari temple.2. notices were issued to the defendant opposite parties. they opposed the grant of temporary injunction to the revisionist under order39 rules 1 and 2, cpc.3. learned trial court rejected the civil misc. case no. 158/89 and 104 of 1989 vide his order dated 4.8.94 holding that the plaintiff revisionist has no prima facie case in his favour. learned trial court also recorded a finding that balance of convenience is not in favour of the plaintiff revisionist. it is also held that if the temporary injunction under order 39 rules 1 and 2 cpc is not granted to the plaintiff revisionist, no irreparable loss would be caused to him. after recording the aforesaid findings, learned trial court dismissed the application under order 39 rules 1 and 2 cpc on 4.8.94.4. aggrieved against the order passed by the learned trial court dated 4.8.94, the revisionist filed a civil misc. appeal no. 57/94 under order 43 rule (r), cpc before the learned district judge, udaipur who transferred the aforesaid appeal for disposal in accordance with law to the court of learned additional district judge, no. 1, udaipur.5. learned additional district judge, no. 1, udaipur vide his order dated 3.6.95 dismissed the appeal and upheld the order passed by the learned trial court on 4.8.94.6. now against the aforesaid orders passed by both the courts-below, the plaintiff revisionist has come up in revision under section 115, cpc.7. i have heard mr. prakash tatla, learned counsel for the revisionist as well as learned counsel mr. basti chand appearing on behalf of the respondent devasthan.8. learned counsel for the revisionist urged before me that from the judgment passed by both the courts--below, it is apparent that his application under order 39, rules 1 and 2 cpc has been rejected on the basis of the provisions contained under 'the service rules relating to the staff of self-supporting (funded) court of wards temples under the control and superintendence of devasthan department of rajasthan (hereinafter referred to as the rules of 1959').9. the main thrust of the argument of learned counsel for the revisionist before me is that the aforesaid rules of 1959 has no statutory force, therefore, both the courts below have no jurisdiction to reject the application under order 39 rules 1 and 2 cpc moved by the plaintiff revisionist.10. learned counsel mr. basti chand appearing on behalf of respondent-devasthan has refuted the aforesaid argument advanced on behalf of learned counsel for the revisionst. the learned counsel for the opposite party no. 2 urged before me; that both the courts below have recorded a concurrent finding of fact that no prima facie case is made out in favour of the plaintiff-revisionist to grant him temporary injunction. both the courts-below have further record concurrent finding of fact that balance of convenience is not in favour of the plaintiff revisionst. lastly, it is found by both the courts below that if temporary injunction under order 39, rules 1 and 2 cpc is refused to the plaintiff revisionist, he will not suffer any irreparable loss and injury, hence, according to him, the present revision is liable to be dismissed on this ground alone without further ceremony.11. i have given my thoughtful consideration to the rival contentions raised at the bar. i would like to examine the argument advanced by the learned counsel for the revisionist to the effect that the rules of 1959, which have been relied upon by both the courts below, have no statutory force, hence, the orders impugned passed by both the courts below are without jurisdiction.12. it is true that both the courts below have refused temporary injunction to the plaintiff revisionist on the ground, inter alia, that since he has attained the age of super annuation as contemplated under rule 24 of the rules of 1959, therefore, after attaining the age of super annuation, he has no authority to perform or to supervise 'pooja' in two disputed temples. indisputably, the plaintiff revisionist has attained the age of 65 years, therefore, under rule 24 of the said rules, he is not entitled either to perform or to supervise 'pooja' in these two temples.13. a close scrutiny of rule 24 of the said rules leads towards an irresistible conclusion that in no case, staff of temple shall be allowed to remain in service beyond 65 years. therefore, by no stretch of imagination, the age of the plaintiff revisionist can be further extended after attaining the age of 65 years.14. mr. prakash tatia, learned counsel for the revisionist argued that the status of the plaintiff revisionist is that of a 'sevayat' and not of a 'pujari'. in my humble opinion, from the averments made in the plaint and the nature of duties alleged to be performed by the plaintiff revisionist fell within the definition of 'pujari' as contemplated under rule 9 of the rules of 1959. it is further evident from the provisions of rule 9 of the aforesaid rules that this rule as well as rule 24 are applicable to these two temples and an argument contrary to it is not acceptable. i am fully satisfied that both the courts below have committed no illegality or irregularity in placing reliance on rule 9 and rule 24 of the rules of 1959.15. the learned counsel for the opposite party devasthan department has placed before me a notification issued by the state government in which both these temples are placed under the supervision of devasthan department in the category of self supporting (funded) temples of rajasthan state.16. it is well to rember that the rulers of erstwhile indian states exercised sovereign powers legislative, executive and judicial. it is admitted by the plaintiff revisionist that these two temples were constructed by ex ruler of udaipur in vikram samvat 1709 and 1882, hence the management of these two temples with its properties validly vested in the ex ruler of udaipur and thereafter enforcement of constitution of india on 26th january, 1950 in the successor state of rajasthan, hence notification issued by the state government placing these two temples under the supervision of devasthan department in the category of self-supporting (funded temples of rajasthan state is valid and an argument contrary to it is not acceptable.17. learned counsel for the revisionist next contended before me that these rules of 1959 are statutory rules, therefore, not enforceable. in my humble opinion, the aforesaid arguments is mis-placed in, as much as, it must be taken to be settled principles of law that even departmental instructions and office memorandum are enforceable unless these office memorandum or departmental instructions are shown against some statutory rules or enactment. nothing has been brought to my notice that these rules of 1959 which are made applicable by both the courts below are inconsistent to any statutory enactment or statutory rules, therefore, even if these rules are taken to be office memorandum or departmental instructions yet the services of the plaintiff revisionist can be regulated under rules 9 and 24 of the rules of 1959 for the purposes of passing an order superannuating his services of 'pujari' after attaining the age of 65 years.18. learned counsel for the revisionist argued in a feeble voice that even if rules 9 and 24 of the rules of 1959 are enforceable even then these rules stood repealed by virtue of section 81 of the rajasthan public trust act, 1959. the aforesaid argument of the learned counsel for the revisionist is wholly misconceived inasmuch as applicability and enforcement of section 81 of the aforesaid act depends on the certain contingencies enumerated in the said section unless these contingencies are fulfilled at the operation and enforcement of section 81 of the said act is in abeyance.19. in my considered opinion, the powers conferred under order 39 rules 1 and 2 cpc to the sub-ordinate courts are discretionary power. it is true that the courts below while granting or refusing temporary injunction are expected to exercise their discretion judiciously not otherwise. in the instant case, both the courts below have refused temporary injunction in exercise of its judicial discretion. the orders impugned refusing temporary injunction by both the courts below cannot be said to be per verse, arbitrary, capricious or against any sound principle of law, hence, these orders do not require interference in the revisional jurisdiction.20. in my humble opinion, discretion exercised by both the courts below refusing temporary injunction after analytical discussion of the material on record cannot be interferred by this court on mere jurisdictional error as contemplated under clauses (a) (b) and (c) of sub-section (1) of section 115, cpc unless it is further shown that if the order impugned is allowed to stand it would occasion either failure of justice or irreparable injury to the revisionist. i am fully satisfied that if the orders impugned are allowed to stand it would neither occasion a failure of justice nor it would cause any irreparable injury to the plaintiff revisionist.21. i have critically examined the orders passed by both the courts below refusing temporary injunction to the plaintiff revisionist which are eminently just and proper and do not require interference of this court under section 115, cpc.22. as a result of the aforesaid discussion, the instant revision petition lacks merit and it is hereby dismissed. in the peculiar facts and circumstances of the case, both the parties are directed to bear their own costs.