REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7966-7967 OF 2009 (Arising out of SLP © Nos. 9165-9166/2009)

Kashi Math Samsthan & Anr.           ……….           Appellant(s)

Versus

Srimad Sudhindra Thirtha Swamy & Anr.         … Respondent(s)

J U D G M E N T

TARUN CHATTERJEE,J.

1. Leave granted.

2. These two appeals, by way of Special Leave Petitions, have  

been preferred against  a common order dated 25th of  March,  

2009, passed by the High Court of Judicature, Andhra Pradesh  

at Hyderabad in A.S. No. 90 and 91 of 2009, by which the High  

Court  had  rejected  the  interim  applications  filed  by  the  

appellants  seeking  status  quo  and  stay  of  execution  of  the  

decree  passed  by  the  Additional  District  Judge,  IV  Court  at  

Tirupathi in a suit for declaration and injunction.   

1

3. Shri Kashi Math Samsthan (in short “the Math”), which is  

the appellant No. 1 herein, was established somewhere between  

the 14th and 15th Century A.D. It is one of the three Dharma  

Peethas or spiritual thrones of the Gowda Saraswatha Brahmin  

Community (in short “GSB”).  The Respondent No. 1 namely,  

Shrimad Sudhindra  Tirtha  Swamy (hereinafter  referred to  as  

the “Respondent No 1”) became the Mathadhipathi of the Math  

in or around 1949 after the death of the then Mathadhipathi.  

4. On 26th of  April,  1989,  Respondent  No.  1,  who was the  

guru of one Shrimad Raghavendra Thirtha Swami (hereinafter  

referred to as the “appellant no.2”), had chosen him as his Patta  

Shishya and successor to the Math.  On 7th of July, 1989, the  

Respondent  No.  1,  conferred  Diksha,  thereby  initiating  the  

Appellant  No 2  to  Sanyasa.   On 4th of  November,  1994,  the  

respondent no 1 entrusted some religious, Dharmic and social  

activities as well as management of the Math and handed over  

all  the  deities,  along  with  paraphernalia,  insignia  etc  to  the  

Appellant no 2.  As per the prevalent tradition of the Math, the  

Mathadhipathi  is  supposed to perform Pooja to the presiding  

2

deities three times a day, which is referred to as the Trikala  

Pooja.  The  Mathadhipathi  as  the  head  of  the  Math  is  the  

custodian of  the  “Mudra”  (Insignia),  or  the  seal  of  the Math.  

The  respondent  No.  1  entrusted  his  authorities,  powers  and  

privileges as the 20th Pontiff and head of the Math in respect of  

some of the religious, dharmic and social activites of the Math,  

except those of Shri Vyashasram at Haridwar to and in favour  

of the appellant no 2 on and with effect from 12th of December,  

1994.

5. Due to some disturbances in the matter of continuing as a  

Mathadhipathi  of  the  said  Math  between  the  GSB  and  the  

respondent No. 1, he sought to prevent the appellant No. 2 from  

discharging his functions as the Mathadhipathi of the Math and  

on  the  other  hand,  the  appellant  No.2  had  alleged  that  the  

respondent  No.1  started  interfering  with  the  affairs  of  the  

Mathadhipathi  of  the  Math.   Finding  this  difficulty,  the  

appellant  No.  2  had  instituted  a  suit  to  declare  him as  the  

Mathadhipathi and 21st Pontiff of the Math and also prayed for  

an injunction, restraining the respondent No. 1 from exercising  

3

powers, duties and privileges as the Mathadhipathi of the Math.  

The said suit  was filed  in  the  III  Court  of  the  Addl.  District  

Judge at Tirupathi.  The Respondent No. 1 entered appearance  

and filed his written statement inter alia alleging that since he  

had continued to be the Mathadhipathi of the Math, appellant  

No.2 had no right to disturb the functioning of respondent No. 1  

and by a counter claim, he had prayed for return of the deities,  

paraphernalia,  insignia  and  other  articles,  which  were  in  

possession of the appellant no 2.      

6. During  the  pendency  of  the  suit,  an  application  for  

injunction was filed by the appellant No.2 and the trial Court  

directed the parties  to maintain status quo in respect of  the  

functioning of the Mathadhipathi relating to the affairs of the  

Math as well as the articles till the disposal of the suit.  It is  

true that the interim order of status quo granted by the trial  

Court was operative during the pendency of the suit and was  

not challenged by the respondent No.1.   

4

7. After issues were framed and evidence was adduced, the  

suit  itself  was  disposed  of  on  transfer  to  the  IV  Additional  

District  Judge,  Tirupati,  who  dismissed  the  suit  of  the  

appellants and allowed the counter claim of the respondent No.  

1  by  granting  a  decree  for  permanent/mandatory  injunction  

thereby directing the appellant No.2 to hand over the articles in  

his possession to the respondent No. 1 within a period of one  

month from the date of delivery of the judgment in the suit.   

8. Feeling aggrieved by the judgment and decree of the trial  

Court,  the  appellants  have  filed  two appeals  before  the  High  

Court  of  Judicature  of  Andhra Pradesh at  Hyderabad,  which  

came to be registered as A.S. No. 90 and 91 of 2009.  In the  

said pending appeals, applications for injunction under Order  

39 Rules 1 and 2 read with Section 151 of the CPC seeking  

temporary  injunction,  restraining  the  respondents  from  

interfering in any manner with the functioning of the appellant  

No.  2  as  Mathadhipathi  of  the  Math,  was  prayed  for.   The  

appellants also filed a separate application under Order 41 Rule  

5 read with Section 151 of the CPC being ASMP no 286 of 2009  

5

on  the  same  day,  seeking  stay  of  the  judgment  and  decree  

passed by the trial court during the pendency of the aforesaid  

two  appeals.   By  a  common  impugned  Order  dated  25th of  

March, 2009, the High Court dismissed the applications of the  

appellants and directed that the execution of the decree granted  

by the trial court would be subject to the final outcome of the  

appeals filed before it.    

9. Feeling aggrieved by this order of the High Court rejecting  

the application for injunction and the application for stay filed  

by the appellants, these two Special Leave Petitions were filed,  

which on grant of leave, were heard by us in presence of the  

learned counsel appearing on behalf of the parties.  

10. We have  heard  the  learned  counsel  for  the  parties  and  

examined the impugned order of the High Court as well as the  

Judgment of the trial  Court,  which dismissed the suit of  the  

appellants in respect of which, appeals are now pending before  

the  High  Court  for  final  adjudication.   Before  us,  Mr.  R.  F.  

Nariman,  learned  senior  counsel  appearing  on  behalf  of  the  

6

appellants, submitted that since an interim order of status quo  

regarding the functioning of the Mathadhipathi of the Math was  

operative  during  the  pendency  of  the  suit  and triable  issues  

have to be gone into by the High Court in the first appeals, it  

was fit and proper for the High Court to direct the parties to  

maintain the interim order which was granted by the trial Court  

during the pendency of the suit.  This submission of the learned  

senior  counsel  for  the  appellants  was  hotly  contested  by  

Mr. K.K. Venugopal, learned senior counsel appearing for the  

respondents. According to Mr. Venugopal, since the appellants  

could not make out any prima facie case to get an interim order  

of injunction during the pendency of the appeals, question of  

continuance of the interim order, which was granted by the trial  

Court during the pendency of the suit, cannot arise at all.   

11. Having heard the  learned senior  counsel  for  the  parties  

and  after  going  through  the  impugned  order  and  also  the  

judgment  of  the  trial  Court  dismissing  the  suit  of  the  

appellants, we do not find any worthy reason to pass an interim  

order  in  the  manner  suggested  by  Mr.R.F.Nariman,  learned  

7

senior  counsel  appearing  on  behalf  of  the  appellants,  in  the  

exercise  of  our  discretionary  power  under  Article  136  of  the  

Constitution.   

12. A perusal of the Judgment of the trial Court in respect of  

which appeals are now pending before the High Court, would  

clearly show that the appellant No.2 was entrusted with some of  

the religious, dharmic and social activities of Shri Kashi Math  

Samsthan  except  those  of  Vyasaram,  Haridwar  by  the  

respondent No.1.  It would also be evident from the aforesaid  

Judgment that the appellant no. 2 himself had requested the  

respondent  No.1  to  relieve  him from certain  duties.   It  also  

appears from the said Judgment that the whole trouble started,  

when the appellant no. 2 had opened a bank account in his  

individual status.  It was also the finding in the suit that the  

appellant no. 2 except filing Ex P1 to P3, had not filed any other  

documents at the time of filing of the suit in order to prove that  

he was appointed as Mathadhipati of the Math.  Furthermore,  

the aforesaid Judgment also would not show that the appellant  

No. 2 had ever whispered anything about his claim to the TT  

8

Devasthanams for temple honours.  Apart from that, the trial  

Court, in its Judgment, had carefully and in detail, considered  

the material documents as well as the oral evidence and then  

had come to the conclusion that the appellant No. 2 had failed  

to  make a prima facie  case  in his  favour for  the  purpose  of  

obtaining  injunction  in  his  favour.   That  being  the  position,  

appellant No. 2 was not entitled to any discretionary remedy of  

injunction.   

13. It  is  well  settled  that  in  order  to  obtain  an  order  of  

injunction, the party who seeks for grant of such injunction has  

to prove that he has made out a prima facie case to go for trial,  

the  balance  of  convenience  is  also  in  his  favour  and he will  

suffer irreparable loss and injury if injunction is not granted.  

But it is equally well settled that when a party fails to prove  

prima  facie  case  to  go  for  trial,  question  of  considering  the  

balance  of  convenience  or  irreparable  loss  and injury  to  the  

party concerned would not be material at all, that is to say, if  

that party fails to prove prima facie case to go for trial, it is not  

open to the Court to grant injunction in his favour even if, he  

9

has made out a case of  balance  of  convenience being in his  

favour  and  would  suffer  irreparable  loss  and  injury  if  no  

injunction order is granted.  Therefore, keeping this principle in  

mind, let us now see, whether the appellant has been able to  

prove prima facie case to get an order of injunction during the  

pendency of the two appeals in the High Court.     

In para 21 of the Judgment of the trial Court, it is found:

“…….the  words  ‘certain  and  ‘some’  quoted  above and ‘when we  are still  in a position to   carry on with the traditional duties’, prima facie  show  that  the  1st  respondent  has  not  surrendered all his rights, privilege and duties   and that the 2nd petitioner has not been made   as  full  fledged  Mathadhipathi.  As  per  the  custom  prevailing  since  continuous,  vatu   initiated  into  Sanyasa  and  named  as   successor, will become Mathadhipathi after the   Mathadhipathi passes away.”

From the aforesaid finding of the trial Court, it is clear that  

the  respondent  No.  1  had  not  abrogated  all  his  powers  as  

Mathadhipathi in favour of the appellant no.2 and he was only  

entrusted with certain powers.  In para 22 of the Judgment of  

the trial Court, it was observed as follows :-

“The following circumstances also go to support the  version  of  the  1st  respondent.  The  2nd  petitioner   

10

himself has addressed a letter dated 4/11/99 reads  as follows:

‘In view of the recent events, we have kindly  decided  not  to  involve  in  the  matters   concerning  the  authority  of  Shri  Samshtan   (Adhikartha  Vishayas)  as  well  as  Dharmic   activities  (Dharmic  Vishayas)  of  the  samaj.   Therefore with  pranamas,  again  and again   we pray and request to relive us as early as   possible.’

This prima facie shows that the 2nd petitioner has  been  still  recognizing  the  1st  Mathadhipathi,  and  therefore  requested  him  to  relieve  himself  from  “certain activities.”

A careful  reading  of  the  aforesaid  findings/observations  

made in para 22 of the judgment of the trial Court would show  

that the letter dated 4th of November, 1999 clearly enumerates  

the fact that the appellant No. 2 had wanted to be relieved from  

certain  activities  of  the  Math  and  he  had  in  fact  sought  

permission from the respondent no 1 in this regard. Therefore,  

in our view, it was rightly held by the trial Court in the final  

Judgment that the appellant No. 2 continued to consider the  

respondent No. 1 as the Mathadhipathi of the Math even after  

the alleged proclamation of 1994.  

The trial court again in para 24 had observed:

11

“If  all  the  circumstances  are  taken  into  consideration  the  irresistible  conclusion  that   can  be  drawn  at  this  stage  is  that,  the  1st  respondent  has  not  abdicated  all  his  powers   and privileges as Mathadhipathi and only some  powers and privileges have been conferred on  2nd petitioner. In view of the above discussion, I  hold that the 2nd petitioner is not entitled  for  the  injunction  orders  as  claimed  by  him.” (Emphasis supplied)

In view of the aforesaid findings of the trial Court to the  

extent that appellant no. 2 was not entitled to the injunction  

order as claimed by him, it is difficult to find any illegality or  

infirmity  with  the  findings  of  the  trial  court,  as  noted  

hereinabove, atleast prima facie in respect of which, the High  

Court had also agreed.  We are, therefore, of the view that the  

powers of the Mathadhipathi of the Math were not abdicated in  

favour of the appellant No.2.  It is well settled that such power  

of the Mathadhipathiship of the Math could devolve to any other  

person after the death of the existing Mathadhipathi or anyone  

else, who could succeed him as the Mathadhipathi of the Math  

according to the customs and traditions of the Math.  

12

14. Mr. Nariman, learned senior counsel appearing on behalf  

of the appellants, as noted herein earlier, submitted that since  

the order of status quo was continuing till the disposal of the  

suit,  that  position  should  be  allowed to  continue during  the  

pendency of the appeals in the High Court.  It is true that since  

the  appeals  pending  before  the  High  Court  are  also  to  be  

decided on facts, basically this position needs to be maintained  

by  the  High  Court.   But  in  view  of  the  peculiar  facts  and  

circumstances of the present case and in view of the nature of  

rights given to the appellant No.2, as prima facie noted herein  

earlier and in view of our discussions made hereinabove that  

the appellant No. 2 had failed to make out any prima facie case  

to go for trial, we do not think that such state of affairs should  

be allowed to continue till  the disposal of the appeals by the  

High Court.  At this stage, we may note that the Trial Court,  

while  disposing  of  the  application  for  injunction,  held  that  

although the appellant No. 2 was not entitled to an order of  

injunction as he had failed to prove that he had a prima facie  

case and balance of convenience in his favour but still granted  

13

status quo till the disposal of the suit.  The findings made in  

this regard may be reproduced below :

“In  the  result,  the  petitioners  have  failed  to   prove  that  they  have  prima  facie  case  and  balance  of  convenience,  therefore,  the  2  nd    petitioner  is  not  entitled  for  interim  order  as   prayed for i.e restraining the respondents from  in  any  way  interfering  with  the  exercise  of  powers, duties and privileges of 21  st   Pontiff  of    the  1  st   petitioner  Math.   However,  from  the  reasons  it  is  clear  that  the  2nd petitioner  has  been  entrusted  with  holy  deities  and  other  paraphernalia and insignia and it appears that   the  2nd petitioner  has been performing Trikala  Pooja  to  the  holy  deities.  Therefore,  the   respondents  are  hereby  restrained  from  interfering in  performing Trikala Poojas  to  the  Holy Deities by the 2nd Petitioner. It is further  directed that the 1st respondent shall not  delegate  his  powers,  particularly  the  authority to deal with bank accounts and  all  other  movable  and  immovable  properties of Shri Kashi Math Samsthan to  any  other  person  i.e.  the  1st Respondent  shall himself deal with the funds of Shri  Kashi Math Samshtan and other movable  and immovable properties and he shall not  authorize  any  other  person  to  deal  with  the  same  by  executing  General  Power  of  Attorney or any other documents pending  disposal of the suit….” (Emphasis supplied)

In view of our discussions made herein earlier and  having  

carefully considered the above findings of the courts below, as  

14

noted hereinabove,  made on the application for injunction,  it  

can be safely held that although the trial Court had directed the  

parties to maintain status quo in the matter of functioning of  

the Mathadhipathi of the Math till the disposal of the suit, but  

such order was passed on a finding that the appellant No. 2 had  

failed  to  prove  prima  facie  case  to  obtain  such  an  order  of  

status quo.  That apart, it is well settled that when parties went  

to  trial  and  adduced  evidence  in  support  of  their  respective  

cases,  it  would  be  open to  the  court  to  reach to  a  different  

conclusion at the time of disposal of the suit and grant relief  

accordingly.   As noted herein earlier, while deciding the suit,  

the  trial  court  held  relating  to  the  declaration  of  title  of  the  

Mathadhipathi that the Respondent no. 1 had never abrogated  

his powers as the Mathadhipathi of the Math in favour of the  

Appellant no 2 and, therefore, after assessing the evidence and  

the submissions  of  the  learned counsel  for  the  parties,  have  

granted a decree for  permanent and mandatory injunction and  

directed the appellant No. 2 to restore back the holy deities and  

other materials in his possession relating to the Math in favour  

of the respondent No.1. The trial court also after considering the  

15

entire evidence and materials on record in the final judgment  

held  that  the  balance  of  convenience  was  in  favour  of  the  

respondent no. 1 and that the appellant no 2 had failed to prove  

that  he succeeded as the  Mathadhipathi  w.e.f.1994 after  the  

proclamation by the then Mathadhipathi that is the respondent  

No.1  herein.  The  final  findings  of  the  trial  court,  of  course,  

would be taken into consideration by the High Court in the first  

appeals but we do not find at this stage to hold prima facie that  

such  findings  can  be  said  to  have  been  vitiated  and  the  

judgment of the trial court needs to be interfered with.   

15. That apart, the High Court in the impugned order, as well  

as the trial Court had pointed out that the proclamation, which  

the appellant No. 2 had cited in support of his case, is not clear  

to the effect that the respondent No. 1 had denounced all his  

powers  as  the  Mathadhipathi  of  the  Math  in  favour  of  the  

appellant No.2.  In fact, it was the submission of the respondent  

No. 1 that he had only abrogated some of his powers and not all  

and that he still  was continuing as the Mathadhipathi of the  

Math.  A careful perusal of the aforesaid findings of the trial  

16

Court as well as the High Court and also after considering the  

submission of the respondent No. 1 that the respondent No. 1  

had only abrogated some of his powers and not all and that he  

was still continuing as the Mathadhipathi of the Math, would  

prima facie show that the appellant No. 2 had failed to prove  

that he was made the Mathadhipathi of the Math by respondent  

No.  1  or  respondent  No.  1 had relinquished his  right  of  the  

Mathadhipathi of the Math.  

16. In view of the aforesaid finding, it is not necessary for us  

to go into the question on title of the Mathadhipathiship of the  

appellant No. 2 at this stage, which shall be decided in detail by  

the High Court while deciding the appeals on merits.  But we  

make it clear that the findings made by the trial Court in the  

final  Judgment  and  the  High  Court  on  the  application  for  

injunction in the pending appeals are to be treated as prima  

facie findings which shall not be taken to be final by the High  

Court at the time of disposal of the appeals.   

17

17. There  is  another  aspect  of  this  matter.   It  cannot  be  

disputed that as per the custom of Sri Samsthan, Mathadhipathi  

Seat cannot be relinquished and respondent No. 1 shall continue  

to work as the Mathadhipathi of the Math till  his demise and  

after his demise, the Shishya or the nominated successor of the  

respondent No.1 would assume the office of the Mathadhipathi.  

Further, it can not be said from the evidence on record that the  

appellant No. 2 on the basis of the proclamation dated 12th of  

December, 1994 was actually the Mathadhipathi as claimed by  

him atleast prima facie which could permit the appellant No.1 to  

obtain the order of injunction from the court. At the same time,  

we  should  be  reminded  that  the  appellant  No.  2  had  himself  

written  a  letter  dated  4th of  November,  1999  requesting  the  

respondent No. 2 to relieve from the activities of the Math.  It  

would also appear from the letter that the appellant No. 2 had  

addressed  the  respondent  No.  1  as  the  Mathadhipathi  of  the  

Math.  The finding arrived at by the trial Court as well as by the  

High Court to the effect that the seat of Mathadhipathi can be  

transferred to the successor of the existing Mathadhipathi only  

after  his  death  and  not  before,  which  is  apparent  from  the  

18

customs and traditions of the Math, it is difficult to accept at  

least  prima  facie  the  case  that  the  respondent  No.  1  had  

relinquished the seat of Mathadhipathi in favour of the appellant  

No. 2 and such seat could be assumed by the appellant No. 2  

before  the  death  of  the  existing  Mathadhipathi  i.e.  the  

respondent  No.  1 or  by any deed executed by the  respondent  

No.1 relinquishing as the Mathadhipathi of the Math.   

18. That being the position, we are in full agreement with the  

views expressed by the High Court as well as by the trial Court  

that the succession to the position of the Mathadhipathi can only  

be done after the death of the existing Mathadhipathi and not  

before it.  That apart, as noted herein earlier, a perusal of the  

proclamation  dated  12th of  December,  1994  would  not  

conclusively suggest that the respondent No. 1 had abdicated all  

his  powers  as  Mathadhipathi  of  the  Math  in  favour  of  the  

appellant No. 1.  In view of our discussions made hereinabove  

and  in  view  of  the  admitted  fact  that  all  the  Courts  below,  

starting from the trial Court, while granting status quo during  

the pendency of the suit i.e. dated 29th of September, 2000 and  

19

also the Judgment passed by the IV Additional District Judge,  

Tirupati,  in the suit,  which is now under challenge in appeals  

and also the impugned Judgment of the High Court, had noted  

that the appellant No.2 failed to make out a prima facie case in  

his favour and the balance of convenience was also against him.  

Accordingly, we do not find any reason to interfere with the order  

of  the  High  Court  in  the  exercise  of  our  discretionary  power  

under Article 136 of the Constitution.   

19. For the reasons aforesaid, the appeals are dismissed.  We,  

however, make it clear that whatever observations/findings that  

have  been  made  by  us  in  this  Judgment  or  the  

observations/findings which were made by the High Court while  

deciding the interlocutory applications in the pending appeals,  

would not mean to prejudice the case of the appellants in the  

pending appeals before the High Court.  The High Court should  

independently  decide  the  appeals  on  merits  without  being  

influenced by any observations/findings made in this Judgment  

or even in the Judgment of the High Court in the applications for  

injunction.     

20

20. Considering the facts and circumstances of  the case,  the  

High Court is requested to dispose of the pending appeals at the  

earliest preferably within six months from the date of supply of a  

copy of this order to it.  There will be no order as to costs.  

      …………………...J.        [Tarun Chatterjee]

New Delhi;       …………………….J. December 02, 2009.        [H.L.Dattu]  

21