1986 Supreme(MP) 641

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, J.
Shri Ramjanki Mandir – Appellant
Versus
Murti Shri Ramjanki Laxman – Respondent
M. A. No. 21 of 1986 (G)
Decided On : 21-02-1986

Headnote:(1) Civil Procedure Code, 1908 – O.39 R. 3 – A, and 4 – exparte ad interim injunction order – confirmation should be after proper opportunity of hearing to both parties.

       (2) Civil Procedure Code, 1908 – O. 14, R. 2 – maintainability of suit challenged – question should be tried as preliminary issue.

       (3) Public Trust Act, 1951 (M. P.) – S. 8 – jurisdiction of civil Court challenged under – no direction to fill up vacancy in body of trustees should be issued before deciding jurisdictional question.

        Short Note

       1. The impugned order in this case is dated 1 – 2 – 1936. Before that on 9 – 1 – 1986, an order of ad interim injunction was passed without notice to the petitioner/defendant. By the impugned order the ad interim order was made absolute till the contingency mentioned, in the order itself appointment of trustee by the Registrar of Public Trusts took place, to fill up the place which fell vacant by the demise of late Mahant Keshavdas.

       Held: Two fold contention is pressed for my consideration by Shri J. P. Sharma, counsel for the petitioner, which are weighty, reasonable and indeed have' no answer. Firstly, Shri Shrama contends that the impugned order pre – empts defendant's right to prove his case and establish that the ad interim order of injunction had to be vacated and not confirmed. Shri. Jain, counsel for respondents, fairly concedes that there was no inquiry and proper hearing on the objection filed by the defendant. His submission is that this appeal is premature because that inquiry has not been held and no order indeed has been finally rendered in the matter. The ad interim injunction had been confirmed not finally, but till happening of the contingency mentioned earlier.

       2. The second contention of Shri Sharma has still little opposition from Shri Jain who rather contends himself that the direction in the order for filling up the vacancy in the body of the trustees was without jurisdiction. Counsel is, right, because it was the plaintiff's case that there was no public trust in respect of the property and that there survived in him right of being a Chela of the last holder of the property, Mahant Keshavadas whose legatee he was, in favour of whom a will was made as far as in the year 1984. Shri Jain, therefore, submits that he will have no objection if the question of maintainability of the suit which is decided as a preliminary issue, as Shri Sharma contends that the suit is not maintainable in view of section 8 of the M. P. Public Trusts Act. Shri Jain also concedes that no decision has been rendered on the question and until that is done the direction for filling of the vacancy was extra jurisdictional because, the said direction tantamounted to negativing the plaintiff's plea that the property in question was not trust property. After hearing counsel for both sides I am satisfied that the impugned order must go and it goes, here and now, instantly. Both parties indeed are rightly aggrieved by the impugned order for the various reasons earlier alluded. I am accordingly making two fold directions to meet the both contentions pressed for my consideration. They are as follows : – .

       (i) There shall be a proper bearing on the question as to whether the ad interim injunction granted on 9 – 1 – 1986 should be confirmed because that is the statutory mandate and in this case this mandate must be enforced vigorously as the ad interim injunction was granted without notice to the defendants. Counsel agree that they shall appear in the Court below on 24th February 1986 for hearing of the injunction matter. A fresh order shall be rendered by the Court below after bearing parties to decide whether ad interim injunction granted on 9 – 1 – 1986 should be confirmed.

       (ii) The direction in the impugned order to the Registrar of Public Trusts is quashed because such a direction is Dot contemplated until the issue of maintainability is decided. Shri Sharma, appearing for defendants/petitioners undertakes to file written statement by 5th March 1986. After that the Court below shall fix a date for hearing the parties on the preliminary issue on the question of maintainability of the suit and hear and decide the issue in accordance with law Appeal disposed of.