JUDGEMENT
A.R.Lakshmanan, J. -
(1.)LEAVE granted.
(2.)THE above appeal is directed against the final judgment and order dated 09.03.2006 passed by the Gujarat High Court rejecting the Special Civil Application No. 1380 of 2006 discharging the Rule issued thereon and vacating interim relief and rejecting the Civil Application No. 2213 of 2006 for interim relief. By the said special civil application, the appellants challenged the order dated 24.01.2006 of the Second Additional Senior Judge, Nadiad rejecting their application Exh. 95 in Special Civil Suit No. 156 of 2002 for leave to amend their written statement on the ground that the appellants had not been able to show in context or the proviso to Order VI Rule 17 of CPC that before the commencement of the trial, the appellants should not have raised the matter in spite of due diligence.
Concise facts and events: The respondents filed Civil Suit No. 144 of 2002 in the Court of Civil Judge at Bhavnagar against the present appellants, inter alia, seeking a declaration that in view of the Resolution passed in the meeting held on 11.05.2002, Defendant No.1 (appellant No.1 herein) having ceased to be the Acharya of the Vadtal Gaadi, is not entitled, by himself or through defendant No.2 (Present appellant No.2) or supporters from enjoying any of the privileges or rights in respect of Vadtal Gaadi and at any of the principal temples or Hari temples including the temples falling under the Vadtal Gaadi at Vadtal, Gadhada and Junagadh as well as within any of the Trust property and to further declare that the appellants/defendants have no right to nominate their successors as Acharya of the Gaadi. In the above -referred Suit, the appellant submitted an application contending that the Court at Bhavnagar has no jurisdiction.
The said application was dismissed by the Civil Court. The appellants preferred civil revision application in the High Court challenging the jurisdiction of the Bhavnagar Court. To resolve the dispute between the parties, more particularly between the Board and Acharya, Hon'ble Mr. Justice S.D.Dave (retired) was appointed as Arbitrator/Conciliator, whose appointment was accepted by all the parties. The High Court of Gujarat disposed of the Appeal from Order No. 284 of 2002 and Civil Revision Application No. 650 of 2002 and vacated the stay of the order dated 02.07.2002 of the trial Court. Thereupon, the respondents herein withdrew the Civil Suit No. 144 of 2002 from Bhavnagar Court and the said suit was presented in the Court of Civil Judge, Ahmedabad (Rural), where it was numbered as Special Civil Suit No. 190 of 2002. The said suit was subsequently withdrawn and the plaint was again presented in the Court of Civil Judge at Nadiad which was numbered as Special Civil Suit No. 156 of 2002. The respondents/plaintiffs filed application for amendment of the plaint of Special Civil Application No. 156 of 2002 and also produced further documents vide list Ex. 25. The trial Court granted amendment of the plaint and further dismissed the application of the appellants objecting the jurisdiction of the Court.
(3.)THE appellants preferred appeal to the High Court challenging the above order. THE High Court admitted the appeal and finally dismissed the application for stay and directed the appeal to be placed for final hearing. On 31.01.2003, the new Acharya was appointed by the Committee constituted pursuant to the Resolution dated 15.05.2002. THE appellants preferred special leave petition No. 3351 of 2003 before this Court challenging the order of the High Court. This Court modified the order of the High Court and requested Chief Justice of the Gujarat High Court to ensure that hearing and disposal of the appeal takes place as expeditiously as possible as according to this Court an important question was required to be decided in the matter. THE High Court dismissed the appeal from Order No. 421 of 2002. SLP No. 1538 (Civil Appeal No. 3380) was preferred by the appellant No.1 before this Court against the above referred judgment of the High Court. THE said appeal was decided and the matter was remanded back to the High Court, inter alia, observed that:
"THE dispute centers around the question as to whether the removal of Ajendraprasad Narejdraprasad Pandey from the post of Acharya on the basis of a purported Resolution dated 11.5.2000 passed by a body calling itself as Satsang Mahasabha was valid. Intimately linked to this issue is the legality of the action taken to istall Rakeshprasadji Mahendraprasadji". it is to be noted that legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above, the basis revolves around the question of legality of the decision taken to remove Ajendraprasadji and legality of appointment of Rakeshprasadji". it is needless to note that while deciding the issue of injunction, the Courts have to consider three cumulative factors, viz. prima facie case, balance of convenience and irreparable loss. Definite findings are to be given on these aspects, on a prima facie basis."
The High Court dismissed the appeal from order No. 421 of 2002 holding that the injunction is running since long against the appellants and that points which have been raised can be raised before the trial Court. The appellants moved application for amendment on 24.11.2005 in the written submissions in Special Civil Suit No. 156 of 2002, application Ex.95 before the trial Court. This Court dismissed the special leave petition No. 26472 of 2005 summarily and directed the trial Court to proceed with the matter preferably on day -to -day basis. Civil Judge dismissed the amendment application of the appellants on the ground that the trial has commenced and the appellants were not due diligent in preferring the amendment application. The appellants preferred Special Civil Application No. 1380 of 2006 in the High Court against the order passed by the trial Court below in Special Civil Suit No. 156 of 2002. The High Court dismissed the Special Civil Application No. 1380 of 2006, inter alia, on the ground that the jurisdiction under Article 226 of the Constitution of India is limited. Against the said judgment, the appellants preferred this appeal by way of Special Leave Petition.We heard Mr. S.B.Vakil, learned senior counsel for the appellants and Mr. K. Parasaran, learned senior counsel for R1 and Mr. Ashok H. Desai, learned senior counsel for R2. Mr. S.B.Vakil, learned senior counsel took us through the pleadings, various earlier proceedings/orders passed by the trial Court, High Court and of this Court and made elaborate submissions with reference to the pleadings and rulings of this Court.