ORDER
D.P. Mohapatra, J.
1. The order dated 29-7-93 of the Additional Subordinate Judge, Cuttack in Title Suit No. 62 of 1977 is assailed by the defendants 1, 2 and 4 to 8 in this application filed under Sections 115 and 151 of the Code of Civil Procedure. In the said order the learned Subordinate Judge overruled the objections raised by the petitioners and held the suit to be maintainable in civil court. Shortly put, the objection raised by the petitioners was that the suit is barred under Section 73(1) of the Orissa Hindu Religious Endowments Act, 1951 (“O.H.R.E. Act”, for short).
2. The relevant facts of the case necessary for determination of the point raised may be stated thus:–
Opposite parties 1 to 6 as representatives of the Kaupinahari such of the religious suit known as Alekha Mahima Dharma, otherwise also as Satya Mahima Dharma, filed the suit against the petitioners and opposite parties 9 to 20 seeking the following substantive reliefs:
“(a) be it declared that the plaintiffs and the members and followers of their sect are entitled to perform rites and worship at the Mahima Gadi and its appurtenance and at other Ashram arid Tungis in able possession or institutions of the Mahima Cult and to be in sole possession and exclusive management of the properties, assets, movables and im-movbles of the said Mahima Gosain, whenever situate:
(b) or alternatively, be it declared that the plaintiffs and members and/or followers of their sect and the defendants and the members and/or followers of their sect are entitled to be in joint management of all the properties, assets, movable and immovable of Mahima Gosain and the Ashrams and Tungis cult and all institutions of the cult, wherever situate;
(c) the defendants and the members of their cult and their agents, servants are followers be permanently restrained by an order of mandatory injunction from interfering in any manner what so ever with the rights of the plaintiffs and their sect and their followers in performance of their religious rituals and worship at the Mahima Gadi and all Ashrama and/or Tungis and/or other , institutions of the Mahima Cult wherever situate and from interfering in any manner whatsoever with the rights of the plaintiffs and members of their sect and their followers from solely and exclusively being in possession of all the material assets, movables and immovables of Mahima Goasain wherever situate; and from hindering the plaintiffs or thier numbers and / or followers from entering into the precincts of Mahima Gadi and its appurtenances and all Ashrams and/or Tungis and/or such other institution of the cult wherever situate for the use, occupation and performance of rights of worship therein;
(d) a decree for accounts be passed to be rendered by defendants and members and/or followers of their sect of all the assets, movable and immovable of Mahima Goasain and/or of the Mahima cult in their control and management wherever situate and the receipt and expenditure thereof and/or savings held by them and to hand over possession thereof to the plaintiffs;
(e) in exercise of the powers under Section 92 of the Code of Civil Procedure, to remove the defendants and/or members or followers of their sect from the de facto illegal management of Mahima Gadi and other institutions of the cult, constituting constructively a trust and they be directed to deliver possession of the trust property and to render accounts, and to direct enquiries and settle a scheme for the management of the trust, and pass such and further orders in that behalf for the preservation and continuance of the trust as the nature of the case may require.”
The petitioners were impleaded in the suit as representative of Sanyasis and/or Sevaks or Fakadias of the ‘Balkaladhari sect of the same religious cult as that of the plaintiffs. In the plaint the plaintiffs alleged, inter alia, that the two sects, ‘kaupinadhari’ ‘Balkaladhari’, were initiated by Mahima Goasain when he ordained 91 of his disciples initiated as Sanyasis with attire of Kaupinas of bark or Balkala of Kumbhi tree and 60 of his disciples initiated as Sanyasis with attires of Kaupinas of orange coloured cotton cloth; that after the demise of Mahima Gosain in the year 1876 A.D. the Samadhi of the Gosain was made at Joranda in the then feudatory State of Dhen-kanal which came to be known as Mahima Gadi and became the principal centre of the religious cult; that in accordance with the directions of the Gosain, the Kaupinadharis remained in charge of management of the said centre, but in or about the year 1916 some Kaupinadharis inducted some ‘Balkaladharis* and permitted them to be robed in Balkala-Koupina, transgressing the directive of Mahima Gosain and they came to be known as ‘new Balakis’ that since Kaupinadhari Paramananda baba established the present Mahima Gadi by erecting the Gadi Mandir near the Chainahat Tungi set in village Joranda and the Tungi is presently known as ‘Sunya Mandir’, that since the ‘new’ Balkaladharis’ had taken to staying at Mahima Gadi and were reluctant to move on foot, it was the ‘Kaupinadharis’ and their disciples who had turned to tour the country in preaching the cult and were mainly responsible for establishing Ashrams in far away places in the country. Since some disputes arose between the two sects, the Dhenkanal High Court had settled a scheme for joint management of the Mahima Gadi, but the new Balkalis having taken over management and control of the Gadi did not agree to allow any representatives of Kaupinadhari sect to be represented in the Board of Management of the Mahima Gadi and instituted fruitless civil litigations to . drive away the ‘kaupinadhari’ sect from the Gadi. The plaintiffs further alleged that the defendants of the said new Baikali sect prevented the followers of the Kaupindhari sect and the members of the plaintiff No. 1 to enter inside the principal Ashram of the Kaupinadharis established by the said sect as well as Gadi Mandir, Sunya Mandir and Dhuni. Mandir at the Mahima Gadi; that after the said two Balkalis and their followers came to control the management of the Mahima Gadi as they were debarred from holding cash or collecting funds, they had to initiate Kaupindharis from amongst their disciples or Fakadias, transgressing other limitations of the cult and received gifts and funds from all Bhaktas and followers of the religious cult irrespective of sectarian differences; that there had been huge money through them without accounts or stocks thereof being ever taken by the management; that the situation has worsened ever since with the aging of Baba ‘Biswanath Das, President of defendant No. 1’s cult collosal misuse and misappropriation of funds for personal ends. A list of articles is described in the schedule to the plaint. The plaintiffs asserted in paragraph 11 that in accordance with the tenets of the religious cult known as Alekh Mahima Dharma or otherwise as Satya Mahiina Dharma they are entitled to manage the institutions of the cult and the defendants are not entitled to manage such institutions or in the alternative all such institutions are to be managed jointly with representatives of the two sects and further the defendants arc under duty to render accounts of income, expenditure of funds of the cult held at the Mahima Gadi and at the various Ashrams in their management. In paragraph 13 of the plaint it is stated that the defendants representing the sect of Balak-dharis have no right to obstruct the plaintiffs from entering and using the old Ashram set up by Kaupinadhari Sidha Baba Parama-nanda at Mahima Gadi which is now being occupied by the defendants or their subsidiary Ashrams at other places in the State and the defendants are under legal obligations to allow the plaintiffs’ entry into the said premises and to reside and/or use and/or perform rites therein and the defendants need he restrained with a perpetual mandatory injunction from obstructing or interfering in the plaintiffs’exercising such rights and/or privileges, paragraphs 14, 15 and 16 which are particularly relevant for the purpose of the present case are quoted hereunder :
“14. That the institutions of the said Mahima cult constitute a trust expressly and/ or constructively treated for purposes of a charitable nature. The defendants and the followers of their sect have been illegally abusing the trust and misusing the funds thereof by indulging in constructive works and setting to the detriment of purposes of the trust by various acts of mal-feasance and misfeasance, by excluding the plaintiffs and their sect and their followers forcibly and illegality from entry into the places of worship and from management of the institutions and misappropriating and/or misapplying huge amounts of the said trust for their personal case. The defendants have manifestly squandered more than the lakhs of rupees in futile civil and criminal litigations against the plaintiffs to the grave detriment of the object of the trust.
15. That in view of the long drawn out dispute between the parties and ruinous litigations, it is necessary and just and proper that the defendants who are in de facto possession tie removed and they be directed to render accounts and enquiries be made and/or a scheme be settled for the proper management of the trust and such other and further reliefs be granted as the circumstances may justify, to ensure in public interest proper preservation of this eminent centre of culture and religious cult of the country.
16. That the cause of action of the suit arose at Mahima Gadi on 2-2-1977, the day of lest Magha Mela when the plaintiffs and the members and/or followers of their sect were illegally prevented by the defendants above named from entering into the said Ashram of Baba Pararnananda and perform rites at Gadi Mandir. Surya Mandir. Jhuni Mandir and Gosthi sedha and on 21 -2-1977 when the members and followers of the sect of plaintiff No. I were refused entry into the Ashram at Khandegiri and on 14-2-1977 when the members of plaintiff No. I were refused entry into the Ashram of the cull at Darji Sahi, Mahamcdia Bazar in Cuttack town within the jurisdiction of this Court and the defendants above named refused to render accounts of funds and articles and assets of the cult held by them.”
3. Three sets of written statements have been filed in the suit, by the petitioners who are defendants 1, 2 and 4 to 9, by defendant No. 10 and by the intervencr-defendants 11 to 20, who were subsequently impleaded in the suit on their application. The defendants-pctitioners in their written statement denied the allegations in the plaint; they denied that the plaintiffs represent the Sanyasis of Kaupinadhari sect of Alekha Mahima Dharma, as such they are not entitled to represent the Sanyasis of the said sects. According to the defendants, for propagation of the Mahima Dharma the founder had established an order of Sanyasis, consisting of three classes, viz, ‘Para Sanyasis’ otherwise known as ‘Balkaldharis’, ‘Apara Sanyasis’ otherwise known as ‘Kaupindharis’ and ‘Bairagis’ or ‘Fakadias’ a person who first enters into the order of Sanyasis is placed in the category of Bairagis’ or ‘Fakadias’ and after certain period of apprenticeship he is promoted to the rank of ‘Apara Sanyasis’ and when” he became versed in all the books of Mahima Dharma and its rituals and discipline he is promoted to the rank of Para Sanyasis; that all these three classes of Sanyasis have no separate existence or identity from one another and none of them can, according to the tenets of the Dharma, form a separate Samaj. The defendants asserted that since the establishment of Mahima Gadi, the Balkal-dhari Sanyasis remained in exclusive charge and management of the Mahima Gadi, attached temples and premises and articles belonging to Mahima Gadi and the Kaupindharis duly initiated have all along acted as assistants of the Balkaldharis without any right, that Balkaladharis and the society constituted by them were in management of Mahima Gadi and are not answerable to anybody excepting themselves and are not liable to render accounts; that the defendants are not answerable or accountable to the plaintiffs who are strangers to the Mahima Dharma. The defendants further stated there is no previous judgment of any Court of law holding that the plaintiffs had right of worship and had right to perform religious rites in the inner sanctum of Gadi Mandir, Sunya Mandir, Dhuni Mandir and other shrines; there is also no previous judgment declaring that the plaintiff’s had right of decree into the premises which is the subject matter of dispute. The defendants challenged maintainability of the suit in view of the provisions of the O.H.R.E. Act and submitted that Section 92 of the Civil Procedure Code is not applicable to the case.
4. The trial Court considering the pleadings of the parties framed 13 issues of which issue No.6 is — “Is the suit maintainable in view of the provisions contained in Section 73 of the Hindu Religious Endowments Act?” On the application filed by the defendants-petitioners praying that the above issue relating to maintainability of the suit may be decided as a preliminary issue before going into merits of the case, the learned Subordinate Judge considered the issue and held the suit to be maintainable in the order dated 2-7-83 which is under challenge in this case.
5. The thrust of the submissions of Shri K. N. Jena, learned counsellor the petitioners, was that in view of the specific bar in Section 73 of the O.H.R.E. Act read with Sections 41 and 42 of the said Act, the suit filed in the civil court is barred and the trial Court erred in holding the suit to be maintainable.
The contention of Shri M. N. Das, learned counsel for the opposite parties, on the other hand, was that the suit as laid does not come within the purview of Sections 41 and 42 or any of the provisions of the O.H.R.E. Act and, therefore, the bar under Section 73 does not extend to the case and as such the trial Court was right in holding the suit to be maintainable.
6. Section 73 of the O.H.R.E. Act reads as follows:–
“Section 73. Bar of suits in respect of administration of religious institutions– (1) No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding which provision made in this Act shall be instituted in any Court of law, except under and in conformity with the provisions of this Act.
(2) Nothing contained in this section shall affect the right of the trustee appointed under the Act of a religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary.”
Section 41(1) enumerates the disputes for determination of which power is vested in the Asst. Commissioner. Section 42 provides, inter alia, that whenever there is reason to believe that in the interest of the proper administration of a religious institution a scheme may be settled for it, or when not less than five persons having interest make an application in writing stating that in the interests of the proper administration of a religious institution a scheme should he settled for it, the Assistant Commissioner or the Deputy Commissioner, as the case may be shall proceed to frame a scheme in the manner provided in the section.
On perusal of the impugned order, it appears that the learned Additional Subordinate Judge considering Sections 41 and 42 held that the two sections do not make any provision for declaration of right to worship, to take part in the performance of religious ceremonies and rights on the religious institution or to take any action in malfeasance, misfeasance or nonfeasance of the persons in management which is the prayer in the present suit. Referring to Section 92, C.P.C. he held that the civil court is the only Court for determination of such matters of dispute. Placing reliance on the decision of the Supreme Court in the case of Sri Vedgiri Lakshmi Narasinha Swami Temple v. Induru Palla-bhirami Reddi, reported in AIR 1987 SC 231 he came to the conclusion that the suit as laid is maintainable in civil court.
7, I have carefully perused the pleadings of the parties and the order under challenge. Section 73 of the O.H.R.E. Act bars a suit in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding which provision is made in this Act. Therefore, the question is whether in the present case the suit is one relating to administration of religious institution or any other matter for determination of which provision is made to the Act. As noted earlier, the contention of the petitioners is that the suit comes within the purview of Sections 41 and 42 of the O.H.R.E. Act, Section 41 vests power in the Act. Commissioner to decide the disputes whether the institution is a public religious institution; whether an institution is a temple or a math; whether a trustee holds or held office as a hereditary trustee; whether any property or money is of a religious endowment or specific endowment; whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution and what the established usage of a religious institution is in regard to any other matter; whether any institution or endowment is wholly or partly of a religious or secular character, and whether any property or money has been given wholly or partly for religious or secular use etc. Section 42 merely provides for framing scheme for proper administration of religious institution. The plaintiffs in the present case have not only made allegations of management of the properties of the Mahima Gadi but they have also alleged that they have been forcebly prevented from entering the inner sanctum of the Gadi and Ashrams. They have prayed for permanently injuncting the defendants from disturbing their right of worship and participation in the religious rites and have sought for accounts of the income of the properties of the Gadi and Ashrams from the defendants I, 2 and 4 to 9. Such a suit cannot be said to be covered by any of the provisions in Sections 41 and 42 of the O.H.R.E. Act. In the facts and circumstances of the case the prayer for perpetual injunction cannot be said to be wholly superfluous or unnecessary. My attention has not been drawn to any other provision in the O.H.R.E, Act which may cover the dispute raised in the present case.
The Supreme Court in AIR 1967 SC 781 (supra) considering the provisions of Sections 73(1) and 93 of the Madras Hindu Religious and Charitable Endowments Act (19 of 1961) and Section 92, C.P.C. ruled;
“……. ,It follows that Section 93 will apply only to matters for which provision had been made in the Act. It does not bar suits under the general law which do not fall within the scope of any sections of the Act.”
Regarding renditions of accounts by trustee the Court considering the provisions in Chapter VII of the Madras Hindu Religious and Charitable Endowments Act, particularly Section 74 held;
“……. .under Sub-section (7) of Section 74, an order of sub-charge under that section against a trustee shall not bar a suit against him except in matters finally dealt with in . such order. This shows by necessary implication that a suit can be filed for accounts against a trustee in other respect. ……..”
The apex Court, set aside the judgment of the High Court and held that the suit was maintainable in Civil Court.
The Madras High Court in the case of Nag Saheb Dr. Bilmat Belige v. Anwade Anantes-war Temple, reported in AIR 1952 Mad 767 considered the point in a suit of similar nature as in the case at hand and construing the provisions of Sections 73, 79, 79-A and 84 of the Madras Hindu Religious Endowments Act held that Sections 79 and 79-A were not intended to provide a forum for the determination of the constitutional rights of a community over the temple but were intended to apply to matters like the usage regarding the rituals, honours, perquisites, emoluments and as on and therefore there was no bar laid down by Section 79-A either so far as relief for declaration was concerned.
This Court in the case of Narayan Prusty v. Jagabandhu Misra, reported in ILR (1968) Cut 68 held that a suit for permanent injunction is not barred under the provisions of the O.H.R.E. Act.
8. Testing the present case, in the light of the principles laid down in the decisions of the Apex Court, this Court and other High Courts, it is my considered view that the suit cannot be said to be barred under Section 73 of the O.H.R.E. Act. Therefore, the learned subordinate Judge was right in holding the suit to be maintainable. Thus, there being no merit in the revision petition the same is dismissed, but in the circumstances without any order for cost.