VATHIAR RAMANUJA AIYANGAR Vs. PRAIYANACHARIAR

JUDGEMENT

(1.) There are two applications before me for disposal. C.M.P. No. 671 of 1911 is an application by the appellants in the second appeal pending in this Court for a temporary injunction to restrain the respondents from carrying the idol of Desikar in procession through any of the streets within the seven Prakarams of the Srirangam temple. C.M.P. No. 926 of 1912 is an application by the appellants to suspend the injunction granted by the Lower Courts restraining them from interfering with the Vadagalais carrying Desikar in procession through streets. The Vadagalais of Srirangam instituted a suit against the trustees of the temple and the Thengalais for a declaration of their right to carry the idol of Desikar, which they have apparently recently made, in procession through any of the 5, 6 and the 7th Prakarams of the Srirangam temple and for an injunction restraining the defendants from interfering with their right to do so. Their case was that the streets were public streets and that as members of the public they had the right they claimed. The defendants denied that the streets were public streets and contended that they belonged to the temple. They alleged also that even if the public had the right of passage through the streets such right was a restricted one and that it was also contrary to the local usage that the Vadagalais should carry the Desikar idol in procession through the streets. Both the lower Courts held that the Vadagalais had the right to carry the idol in procession. With respect to C.M. P No. 671 I have had considerable doubts whether this Court has jurisdiction to give the appellant an injunction of the sort they claim. The application would admittedly not come within the purview of Rule 1 order XXXIX. The appellants contention is that it would be allowable under the provisions of Rule 1 of order XXXIX and that apart from that rule this Court has inherent jurisdiction to give such an injunction for the protection of the right of a party in a matter in controversy before the court. It is pretty clear to my mind that the language of the rule would not allow an application of this kind. It cannot be said that there is any proceeding before this Court in which the appellants claim to restrain the respondents from doing a wrongful act and that till the matter is tried it is necessary to give an interim relief of the kind which the appellants seek as the result of their appeal. It does also look to me somewhat extraordinary that, when a party goes to court claiming an injunction against his opponent to restrain him from doing something wrongful, the opponent should have the right as a matter of interlocutory relief to restrain him from doing the very act which he claims to be entitled to do and which he asks the court to be allowed to be done without obstruction from his opponent. No case was cited in which an application of this kind has been allowed nor am I aware of any. I do not wish however to express a definite opinion on this point as, in the view I take of the merits of the application, it is not necessary to do so.

(2.) The trustees of the temple were defendants in the suit in the court of first instance. They have not appealed against the decision of the District Court. The appellants here are the representatives of the Thengalai community. Excepting the question of the jurisdiction of the court, the question for decision in both the petitions may be taken to be substantially the same, though I do not say it would be-precisely the same. In an application for a stay of execution the court has to be satisfied that the appellant is likely to sustain substantial injury by execution being allowed to take place before the disposal of the appeal. In an application for a temporary injunc-aion,. the court will ha/e bo be satisfied that the applicant has a prima facie case and further that the protection of his interests requires that an injunction should issue temporarily. It is not usual for the court to grant stay of execution if the appeal itself does not raise fairly arguable questions, so that after all, there is not very much difference between the questions to be decided in either petition. Now in this case the lower courts have both found that the public have a right of way for carrying processions as well as for passing to and fro. I do not wish to express any definite opinion on the question whether the finding may not be open to legal objection. I observe that the District Munsif found that prior to the introduction of the Municipal Act of 1871 the temple was exercising considerable rights of ownership over the streets within the seven prakarams. The Munsif also observes that even now the temple exercises the right of shutting the outer gate of the 7th prakaram. The temple is also receiving pala pattarai fees. Whether the fees are received for the use of any of the street? within the seven prakarams or only of particular streets or portions thereof does not clearly appear. These, no doubt, are questions which might have a bearing on the decision of the second appeal. It is also urged that when the municipality took charge of the streets, the inconvenience of municipal control over the streets was recognised and it was expressly stated that regard should be had for the feelings of the people connected with the temple in exercising control. What exactly the effect of the reservation in the Government order allowing the municipality to take control of the streets would be, it is unnecessary to decide at present. There does not then appear to have been any question as between the respective rights of the Thengalais and the Vadagalais or of the trustees and the Vadagalai community of the place. Nor is it necessary to express an opinion on the question whether the reservation in the G.O. would make the dedication of the streets for the public use a partial dedication. The lower courts observe that after the municipality assumed control of the streets they have been treated as public streets in all respects. It is of course open to the appellants to argue that any act done by the municipality contrary to the ownership of the temple would not affect their rights as against the Vadagalais. The finding of the courts however is that there is nothing restricting the right of way that Vadagalais have over the streets as compared with the right that any one else has. Mr. Ramachandra Aiyar has argued that if the temple itself is the owner of the street it would be open to his clients to prove that any grant of lands to the occupiers of houses and any rights of way must be taken to be subject to any reservations which must be implied by the nature of the grant. A difference would however have to be made between the temple having ownership of the street and the streets being part of the temple itself. This again is a question that it would not be proper to go into at this stage. On the whole I am not prepared to say that the appellants have not got a fair case to argue in the second appeal. But has it been shewn that any substantial loss would be caused 7 Admittedly no pecuniary loss would be caused. It is not alleged that the Srirangam temple itself would be desecrated by a Vadagalai idol being carried in procession. Practically it is admitted that the only injury that could be complained of is that the religious feelings of the Thengalai community would be outraged. It seems to me that where no pecuniary or tangible loss is shewn it would not be right to grant stay of execution merely on the ground of annoyance to the feelings of the appellants. An appellant very often is extremely annoyed that any decree against him should be executed before he has taken the opinion of the final court of appeal. He is particularly annoyed if his opponent is an enemy of his. If he belongs to a religious faction I take it that his annoyance would be still greater. I think it would be a sound rule to act upon that mere annoyance to feelings cannot be a ground to grant stay of execution. There is really nothing before me to shew that the idol of Desikar is an object of hatred according to the Thengalai cult or that Vedantha Desikar is regarded as an enemy of god according to the Thengalai persuasion. It is stated that in the Srirangam temple itself there is a shrine of Vedantha Desikar. I very much doubt whether the outrage would be to the religious feelings of the Thengalais and whether it would not be to their feelings against people whom they hate because they are Vadagalais. At any rate I am unable to hold that there is any injury that a court of law can take notice of which would be a sufficient ground for staying execution. It is no doubt true that the act of the Vadagalais would be an innovation as they have not had a Desikar idol to carry in procession until now. But I do not think that this would be a sufficient ground for staying the injunction. Moreover although I may stay the injunction the declaration of the plaintiff s right would stand uninterfered with by my order. On account of that declaration the Vadagalais would be entitled to exercise the rights which have been declared. The result then of my staying the injunction would be that the Vadagalais might still attempt to exercise their right to carry the Desikar idol in procession and the injunction being stayed the Thengalais would be at liberty to interfere with them. This is a condition of things which I think this Court ought not to be responsible for by any order that it passes.

(3.) In the circumstances the only course open to me is to dismiss both the petitions.