Cav Judgement

1. Present petition, under Article 226 of the Constitution of India has been preferred by the petitioners original plaintiffs in Special Civil Suit No. 156 of 2002 (for short Special Suit ) assailing the order dated 08/03/2013, passed by the learned 3rd Additional Senior Civil Judge, Nadiad, below exh. 1. The said order reads as under:

I have read the plaint and papers in support thereof. Perused the record and proceedings. In view of duties laid down under provisions of O. 7 R. 11 and under the power of the said section and also under provisions of Sec. 151 of the C.P.C. at this stage I direct the plaintiffs to show cause why their plaint should not be rejected under the provisions of O. 7 R. 11(a) for non discloser of cause of action. In view of facts in controversy it is desirous before proceed further that the plaintiff first satisfy the said pivotal point.

Fixed for hearing on the said point on 16/03/2013.

2. The prayers sought for in the present petition are as follow:

8(A) This Hon ble Court may be pleased to issue a writ of certiorari or any other writ in the nature of certiorari or any other appropriate writ, order or direction to call for the record and proceedings of Special Civil Suit No. 156/2002 pending before the learned 3rd Addition Principal Senior Civil Judge, Nadiad;

(B) This Hon ble Court may be pleased to issue a writ of certiorari or any other writ in the nature of certiorari or any other appropriate writ, order quashing and set aside the impugned order dated 08th March, 2013 passed by the learned 3rd Senior Civil Judge, Nadiad below Exhibit 1 in Special Civil Suit No. 156 of 2002;

(C) This Hon ble Court may be pleased to issue a writ of prohibition or any other writ in the nature of prohibition or any other appropriate writ, order restraining the learned trial Court from passing any order under the provisions of Order 7 Rule 11 of the Civil Procedure Code in Special Civil Suit No. 156/2002 pending before him;

(D) Pending admission, hearing and final disposal of the present petition, this Hon ble Court may be pleased to stay the order dated 08th March, 2013 passed by the learned 3rd Senior Civil Judge, Nadiad below Exhibit 1 in Special Civil Suit No. 156 of 2002;

(E) Be pleased to pass such other and further orders as may be deemed fit proper in the facts of the case.

3. Heard Mr. S. N. Shelat, learned senior advocate, assisted by learned advocate Mr. M. K. Purohit for the petitioners and Mr. N. D. Nanavati, learned senior advocate, assisted by learned advocate Mr. S. P. Majmudar for the respondents.

4. The main question involved in the present petition, as raised by the learned senior advocate for the petitioners is that, once the application filed by the defendants vide exh. 19 dated 27/09/2002 under O. 7 R. 11 of the Civil Procedure Code, 1908 (for short the Code ) has been decided against the present respondents original defendants by the Court and has attained its finality and thereafter, the order passed below exh. 5 dated 01/10/2002 has been practically travelled twice up to the Hon ble the Apex Court and thus the said order has also attained the finality, can learned 3rd Additional Senior Civil Judge, Nadiad, at the belated stage, suo moto pass the aforesaid impugned order dated 08/03/2013 below exh. 1 and issue the Show-cause Notice calling upon the petitioners original plaintiffs of the said Special Civil Suit and fixing the matter for hearing on the point, why their plaint should not be rejected under O. 7 R. 11(a) of the Code for non-disclosure of cause of action, more particularly when the depositions of 35 witnesses of the plaintiffs have been completed up to 04/03/2013.

5. The matter has a chequered history. On 11/05/2002, the Satsang Mahasabha of Swaminarayan Sampraday passed Resolution No. 4 by which, the respondent No. 1 herein was deposed (removed) as Acharya of Vadtal Gadi. Present petitioners, who are the original plaintiffs have filed Special Civil Suit No. 156 of 2002 on 06/09/2002 before the Civil Court at Nadiad for declaration and permanent injunction declaring that respondent No. 1 herein does not remain Acharya of Vadtal Gadi and further the respondents original defendants herein have no right, title, interest or authority over the trust properties of temple of Vadtal, Gadhada, Junagadh Pradesh under the Vadtal, which is pending before the concerned Civil Court at Nadiad, to which the respondents filed the joint Written Statement on 26/09/2002, without there being plea of non-disclosure of cause of action. In the said Special Suit an application exh. 5 for interim injunction was also filed by the petitioners original plaintiffs. The respondents original defendants also filed an application exh. 19 dated 27/09/2002 under O. 7 R. 11 of the Code for rejection of the plaint. Both the said applications viz. applications exh. 5 filed by the plaintiffs and exh. 19 filed by the defendants were decided by the learned trial Judge by common order dated 01/10/2002 by which, the learned trial Judge was pleased to allow application exh. 5. Learned trial Judge was further pleased to reject the application exh. 19 filed by the defendants therein.

5.1 Being aggrieved and dissatisfied with the aforesaid order dated 01/10/2002, the defendants the respondents herein preferred Appeal from Order No. 421 of 2002 along with Civil Application No. 7250 of 2002 before this Court. It is the case of the petitioners that the order passed by the learned trial Court below exh. 5 dated 01/10/2002 was subject matter of Appeal from Order No. 421 of 2002 but the order below exh. 19 was not assailed by the respondents original defendants. This Court, vide order dated 30/01/2003 admitted the said Appeal from Order No. 421 of 2002, however, the Civil Application No. 7250 of 2002 for stay was rejected.

5.2 The said order of rejection of Civil Application No. 7250 of 2002 for stay was challenged in the Hon ble the Apex Court by the respondents original defendants by way of Special Leave Petition No. 3351 of 2003 dated 07/07/2003. The Hon ble the Apex Court did not interfere with the said order dated 30/01/2003 in view of the pendency of the Appeal from Order No. 421 of 2002 before this Court. Appeal from Order No. 421 of 2002 was heard and eventually by judgment and order dated 06/05/2004, the same came to be rejected. The said judgment and order dated 06/05/2004 carried to the Hon ble the Apex Court. The Hon ble the Apex Court was, by order dated 13/05/2005, pleased to remand the matter back to this Court for deciding the same afresh with the observations that, since the controversy is continuing unabated, it would be in the interest of the parties if the appeals and connected matters are disposed of by the end of September 2005 . The Hon ble the Apex Court was also pleased to expedite the trial of the special suit. Appeal from Order No. 421 of 2002 along with other connected matters was heard afresh and this Court, by judgment and order dated 05/10/2005, was pleased to reject Appeal from Order No. 421 of 2002. The matter does not rest here. Again, the aforesaid order dated 05/10/2005, was carried by the present respondents to the Hon ble the Apex Court by way of two Special Leave Petitions and the Hon ble the Apex Court, vide order dated 06/01/2006 dismissed the said Special Leave Petitions requesting the trial Court to dispose of the suit as expeditiously as is conveniently possible, preferably with day-to-day hearing. The respondent No. 1 herein, against the aforesaid order dated 06/01/2006, filed the Review Petition before the Hon ble the Apex Court, which was also came to be dismissed by order dated 04/04/2006.

5.3 Learned trial Court has framed the Issues dated 28/09/2005, vide exh. 58 in Special Civil Suit No. 156 of 2002 and accordingly, trial has been commenced. The plaintiffs have examined about 35 witnesses in between 28/10/2005 and 27/02/2013. The cross-examination of plaintiffs witness No. 35 Dharmapriyadasji vide exh. 786 was concluded on 27/02/2013 and re-examination of the said plaintiffs witness No. 35 was concluded on 04/03/2013. The name of next witness of the plaintiffs was to be given on 08/03/2013. On 08/03/2013, vide exh. 936, the petitioners original plaintiffs had submitted application before the trial Court for adjournment on the ground that plaintiffs were busy in the examination at Gurukul and they could not contact their advocate to give name of next witness. The said application at exh. 936 was disposed of by the learned trial Court on the ground that after the hearing of the order dated 08/03/2013, passed below exh. 1 concluded, further proceedings regarding evidence can be considered.

5.4 It is pertinent to note that the said order dated 08/03/2013 passed below exh. 1 in Special Civil Suit No. 156 of 2002 has been reproduced in Para 1 of this order and the same is challenged by the petitioners original plaintiffs by preferring this petition.

5.5 So far as the history of Special Civil Suit No. 156 of 2002 referred above in this Para 5, mainly related to facts of the said case is concerned, learned senior advocate Mr. Nirupam Nanavati for the respondents original defendants has fairly submitted that the same is not under dispute.

6. Drawing the attention of this Court on the history / facts narrated in Para 5 hereinabove, learned senior advocate Mr. S. N. Shelat has mainly submitted that the impugned order dated 08/03/2013 passed below exh. 1 in Special Civil Suit No. 156 of 2002 is not justified in law on the ground of res judicata, more particularly, when the application at exh. 19 dated 27/09/2002 under O. 7 R. 11 of the Code filed by the respondents original defendants has been decided against them and the respondents original defendants have not challenged the same and accordingly the said order below exh. 19 has attained its finality. The order passed below exh. 5 has also travelled twice up to the Hon ble the Apex Court as narrated in Para 5 hereinabove. Thereafter, the respondents original defendants have filed Amendment Application exh. 95 for Leave to Amend their Written Statement, which was also rejected by the learned trial Court and the said order has also travelled up to the Hon ble the Apex Court and the judgment of the Hon ble the Apex Court is reported in (2006) 12 SCC page 1.

As per the submissions of the learned senior advocate Mr. Shelat, while deciding this petition the true test to be considered is that if the respondents original defendants would have filed the application under O. 7 R. 11(a) of the Code on the line of impugned order dated 08/03/2013 suo moto passed by the learned trial Court below exh. 1 then, whether the said application would be maintainable in the eye of law or it be thrown out under the principles of res judicata more particularly in the chequered history narrated in Para 5 hereinabove and also when the petitioners original plaintiffs have commenced with evidence and examined 35 witnesses then the plaintiffs should not interfere in between without any justifiable reasons. Lastly, learned senior advocate for the petitioners has submitted that he has failed to understand to the fact for whose benefit the suo moto order dated 08/03/2013 has been passed by the learned Court below, exh. 1 at belated stage.

6.1 Learned senior advocate for the petitioners has put reliance on Para 11 of the judgment in U. P. State Road Transport Corporation Vs. State of U. P. and Another, reported in AIR 2005 SC 446 [LQ/SC/2004/1346] and submitted that it has been held by the Hon ble three Judges Bench of the Hon ble the Apex Court that the principle of res judicata also applies to two stages in the same litigation. The said para 11 reads as under:

11. The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. (See Satyadhan v. Smt. Deorajin Devi AIR 1960 SC 941 [LQ/SC/1960/128] ).

6.2 The second decision on which the petitioners have put reliance is delivered by the Hon ble Constitutional Bench of the Hon ble the Apex Court in The Direct Recruitment Class II Engineering Officers Association and Others Vs. State of Maharashtra, reported in AIR 1990 SC 1607 [LQ/SC/1990/294] . Head Note - A and Para 35 of the same, read as under:

(A) Constitution of India, Art.32, Art.226 Writ Petition - Res Judicata - Writ petition under Art. 226 dismissed by High Court after hearing on merits - Subsequent petition under Art. 32 by same parties and for same reliefs - Barred by principles of res judicata.

Where the High Court dismisses a writ petition under Art. 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Art. 32 on the same facts and for the same relief filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Art. 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Art. 32. (Para

35) 6.3 The third decision on which the petitioners have put reliance is in, M. Nagabhusana Vs. State of Karnataka and Others, reported in AIR 2011 SC 1113 [LQ/SC/2011/188] . Head Note - A and Para 14 & 15 read as under:

(A) Civil P. C. (5 of 1908), S.11 - Doctrine of res judicata - Is not technical doctrine but a fundamental principle which sustains rule of law in ensuring finality in litigation - Its principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

The principles of res judicata are of universal application as it is based on two age old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. (Para 14, 15)

7. On the other hand, learned senior advocate Mr. Nirupam Nanavati for the respondents original defendants has submitted that whatever grounds has been raised by the learned senior advocate for the petitioners are premature because for all the said grounds the petitioner original plaintiffs are called upon by the learned Court concerned vide order below exh. 1 dated 08/03/2013, which is under challenge and the petitioners can very well raise, advance the same before the learned trial Court and ultimately if any final order be passed thereon after hearing and on merits, it is but natural that party aggrieved can challenge the same before the higher forum, but to stay the proceedings or to restrain the learned trial Court at the threshold is not, what can be generally done in exercise of discretionary jurisdiction of Article 226 of the Constitution of India. The competent Court i.e. 3rd Additional Senior Civil Judge, Nadiad during the discharge of his judicial power and discretion has passed the order below exh. 1 dated 08/03/2013 in Special Civil Suit No. 156 of 2002, which is pending on his file, then it cannot be said that the said order is bad for want of total lack of jurisdiction and this Court cannot restrain him by Writ of Prohibition directing him not to perform his judicial duty. Hence, this petition is misconceived because the petitioners original plaintiffs want to nip the said impugned order in the bud. It has also been submitted by learned senior advocate Mr. Nanavati that issue of non-disclosure of cause of action under O. 7 R. 11(a) of the Code was never raised or decided by any Court and so the principle of res judicata will not be applied at all. Lastly, learned senior advocate for the respondents has submitted that this petition has been filed by the petitioners under Article 226 of the Constitution of India, which is not maintainable because the learned Senior Civil Judge has not been joined as party. When the petition seeking Writ of Prohibition or Writ in nature of Prohibition or Prerogative Writ is filed, then, learned Senior Civil Judge is required to be impleaded as party.

7.1 Learned senior advocate has put reliance on Para 9 of the decision in Saleembhai and Others Vs. State of Maharashtra and Others, reported in (2003) 1 SCC 557 [LQ/SC/2002/1340] and submitted that as held by the Hon ble the Apex Court, the power under O. 7, R. 11 can be exercised by the Court at any stage of the suit before the conclusion of the trial. Para 9 reproduced as under:

9. A perusal of Order 7, Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order 7, Rule 11, CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7, CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11, CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects.

7.2 The second decision on which the respondents have put reliance is in Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, reported in (2004) 3 SCC 137 [LQ/SC/2004/107] . Head Note E reads as under:

E. Civil Procedure Code, 1908 Or. 7 R. 11 Nature and Scope Stage at which objections under, may be raised held, the trial Court can exercise the power at any stage of the suit Basis on which questions under, to be determined Held, for the purposes of deciding an application under Or. 7 Rr. 11(a) and (d) the averments in the plaint are germane Pleas taken in the WS would be wholly irrelevant at that stage Instead, a duty is cast on court to perform its obligations in rejecting the plaint hit by any of the infirmities under cls. (a) to (d), even without intervention of the defendant.

7.3 The third decision on which the respondents have put reliance is in Kamala and Others Vs. K. T. Eshwara Sa and Others, reported in (2008) 12 SCC 661 [LQ/SC/2008/1019] . Para 21 to 24 are reproduced hereunder:

21. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or sub traction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.

22. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.

23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

8. I have considered the above referred rival submissions made by the learned senior advocates for the parties. It is not under dispute that the respondents original defendants have filed an application dated 27/09/2002, at exh. 19 under O. 7 R. 11 of the Code for rejection of the plaint mainly on the ground that under Section 80 of the Bombay Public Trusts Act, 1950 (for short the Trusts Act ), which is the complete Code, Civil Court has no jurisdiction to decide or to deal with any question which is by or under the said Act and as per the averments made in the plaint, the main issue is related to administration of the property of registered Trust and as the permission of the learned Charity Commissioner under Section 51 of the said Act has not been obtained, prior to institution of Special Civil Suit No. 156 of 2002, so under Clause

(d) of R. 11 of O. 7 of the Code, the plaint is required to be rejected. It is also note under dispute that common order below exh. 5 and exh. 19 has been passed on 01/10/2002 and exh. 5 was allowed, whereas, exh. 19 was rejected by the learned trial Court. It is also not under dispute that respondents herein have challenged order below exh. 5 by preferring Appeal from Order No. 421 of 2002. Thus, order below exh. 19, rejecting the said application under O. 7 R. 11 has been accepted by the defendants and it is binding to the parties.

8.1 As referred in Para 5 hereinabove, vide order dated 06/05/2004, Appeal from Order No. 421 of 2002 was rejected by this Court. The said order was carried to the Hon ble the Apex Court and vide order dated 13/05/2005, the Hon ble the Apex Court was pleased to remand the said matter to this Court, for deciding the same afresh. Appeal from Order No. 421 of 2002 along with other connected matters was heard afresh and by judgment and order dated 05/10/2005, the said Appeal from Order was rejected. The relevant order at Para 107 of the said Appeal from Order reproduced hereunder:

107. This Court after taking int consideration all the relevant facts of the case and all rival submissions made by both the parties has found that the appellants of Appeal From Order No.421 of 2002 have no case. From the religious precepts Satsang Mahasabha is not the body unknown to the Sampradaya. Earlier, such body was referred to as Dharm Sabha and it had an important role to play. The factum of non functioning of Shri Ajendraprasadji since his deposition (removal) on 11.05.2002 cannot be ignored. The position which has continued all along must be allowed to be continued till he (Shri Ajendraprasadji) gets his deposition set aside from a competent court. From the scheme framed by this Court it is abundantly clear that Acharya has hardly any temporal duty to be discharged. He is a religious head and has to discharge only religious duties. The relief/s sought for in Special Civil Suit No.156 of 2002 are not barred by sec.80 of the Bombay Public Trusts Act.

Shri Ajendraprasadji himself has taken recourse to civil remedy by filing a suit (Special Civil Suit No.45 of 2002). Allowing Shri Ajendraprasadji to function as Acharya is to cause more difficulties, in absence of the adjudication on the question of legality of his deposition. Therefore, the said Appeal From Order fails and is dismissed. The appellants of Appeal From Order No.69 of 2003 have made out a case and hence the same is allowed and the order passed by the learned Judge below exh.5 in Special Civil Suit No.17 of 2003 is quashed and set aside.

(emphasis supplied)

8.2 Referring the underlined portion of the above-referred order dated 05/10/2005 passed in Appeal from Order No. 421 of 2002 it is clear that while dismissing the said Appeal from Order this Court has observed that the relief/s sought for in Special Civil Suit No. 156 of 2002 are not barred by Section 80 of the Trusts Act. It is pertinent to note that the above-referred order dated 05/10/2005 was carried by the present respondents / original defendants to the higher forum and vide order dated 06/01/2006, the Hon ble the Apex Court has dismissed the said Special Leave Petitions filed by the respondents herein. Thus, by order below exh. 19 passed by the learned trial Court on the application filed under Clause (d) of R. 11 of O. 7 of the Code by the respondents has been dismissed, which was related to Section 80 of the Trusts Act, seeking the prayer to reject the plaint of Special Civil Suit No. 156 of 2002 as there is a specific bar for Civil Suit under said Section 80 of the Trusts Act, which has not been challenged and thus, the said order has attained finality. Moreover, the finding of this Court vide its order dated 05/10/2005 (Para 107) referred above that the reliefs sought for in Special Civil Suit No. 156 of 2002 are not barred by the provisions of the Trusts Act, which also has attained finality by the order passed by the Hon ble the Apex Court as the Hon ble the Apex Court has dismissed the Special Leave Petitions challenging the said order dated 05/10/2005 passed by this Court as referred above. Thus, it is clear that so far as issue related to rejection of plaint under O. 7 R. 11(d) of the Code has been thus decided by the learned trial Court and it has attained finality between the parties. Now, the main question to be decided is, under the above-referred circumstances, whether the respondents original defendants or the Court itself suo moto can raise the issue of rejection of plaint at the belated stage under the provisions of O. 7 R. 11(a) of the Code, as has been raised by the learned trial Court vide its impugned order dated 08/03/2013 passed below exh. 1, more particularly, on the facts narrated in Para 5 hereinabove, which facts are not under dispute.

9. It has been argued by the learned senior advocate Mr. Nanavati for the respondents defendants that the issue of rejection of plaint for non-disclosure of cause of action under O. 7 R. 11(a) of the Code was never raised nor touched by any Court, nor decided the same by any Court. To locate the correct facts on record on the above issue / submissions, it is required to go through the relevant paragraphs of the order dated 05/10/2005, passed by this Court in Appeal from Order No. 421 of 2002 filed by the respondents herein, which reads as under. To get more clarity, it is relevant to note that learned senior advocate Mr. S. B. Vakil has argued the said Appeal from Order No. 421 of 2002 on behalf of the appellants thereof and respondents original defendants herein, while the learned senior advocate Mr. S. N. Shelat has argued the said Appeal from Order on behalf of the petitioners original plaintiffs herein. Para 15 of the said order dated 05/10/2005 reads as under:

15. Learned counsels appearing for the respective parties stated that they are not addressing themselves either to the grounds or to the reasons for which Resolution dated 11.05.2002 was passed. They decided not to go in to the correctness of those grounds/ reasons. They restricted their submissions only on the point of maintainability of the suit (Special Civil Suit No.156 of 2002 before Nadiad Court).

Thus, it appears that the learned senior advocates appearing on behalf of the respective parties had restricted their submissions only on the point of maintainability of suit i.e. Special Civil Suit No. 156 of 2002 pending before Nadiad Court.

9.1 In Para 16 to 46 various submissions on various points have been made by learned senior advocate Mr. S. B. Vakil on maintainability of Special Civil Suit No. 156 of 2002, pending before Nadiad Court, which can be summarized as under:

(i) The Special Civil Suit No. 156 of 2002 (Nadiad) is not maintainable in view of Clause 47 of the Scheme framed by the High Court.

ii) The said suit barred under Section 80 of the Bombay Public Trusts Act and thereby, Civil Court has no jurisdiction to entertain the suit.

iii) As a suit filed at Ahmedabad after the order of this Court in Appeal from Order No. 284 of 2002, Civil Revision Application No. 650 of 2002 dated 14/08/2002 was withdrawn without specific permission to file a fresh suit and so, the present suit i.e. Special Civil Suit No. 156 of 2002 is barred under O. XXIII R. I of the Code.

iv) In Special Civil Suit No. 156 of 2002 (Nadiad), the plaintiffs have pleaded an illusory cause of action and therefore, the plaint is liable to be rejected under Clause (a) of R. 11 of O. VII of the Code. Relevant portion of Para 29 of the order dated 05/10/2005 of Appeal from Order No. 421 of 2002 reads as under:

...The learned senior counsel submitted that under Order VII, Rule 11 of the Code of Civil Procedure, the plaint is liable to be rejected in the cases mentioned therein. The learned sr. counsel submitted that clause (a) of Rule 11 of Order VII, provides that, the plaint shall be rejected where it does not disclose a cause of action, and clause (d) provides that a plaint shall be rejected where the suit appears from the statement in the plait to be barred by any law. In this regard the learned counsel relied upon a decision of the Honble the Apex Court in the matter of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and others, in (1998) 2 SCC 70 [LQ/SC/1997/1730] . The learned senior counsel submitted that the Court is entitled to reject the plaint under Order VII, Rule 11 of the Code at any stage of the suit, that is even after the issues are framed or even at the stage when matter is posted for evidence. The learned senior counsel submitted that in the present case, the plaintiffs have pleaded an illusory cause of action, and therefore, the plaint is liable to be rejected under clause (a), of Rule 11 of Order VII.

9.2 The submissions of learned senior advocate Mr. S. N. Shelat on the point of O. 7 R. 11 of the Code, made by him on behalf of the present petitioners original plaintiffs incorporated in Para 47 and 48, pages 281 to 283, which read as under:

47. Learned senior counsel Mr.Shelat submitted that in this Appeal From Order the appellants have not challenged the order passed below Exh.19-an application filed by the original defendants-appellants herein, praying to reject the plaint under Order VII, Rule 11 and therefore, the appellants cannot be allowed to press for the rejection of the plaint. He submitted that though Exh.19 is rejected in terms by the order under challenge, the appellants have not challenged the same. The appellants have chosen to restrict their Appeal From Order against grant of interim order only. The learned senior counsel invited the attention of the Court to paras 1 & 3 of the memo of Appeal. Mr.Shelat submitted that the order rejecting Exh.19 is an interlocutory order and it cannot now be challenged. In support of contention he placed reliance on a decision of the Honble the Apex Court in the matter of Satyadhan Ghosal and others Vs. Smt.Deorajin Debi and another, reported in A.I.R. 1960 SC 941 [LQ/SC/1960/128] . Mr.Shelat relied upon the observations made by the Honble the Apex Court in para 8 of the judgement, which reads as under:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court of a higher court having at an earlier stage decide a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again

48. Mr.Shelat, learned counsel next relied upon a decision of the Honble the Apex Court in the matter of Arjun Singh Vs. Mohindra Kumar and others, reported in A.I.R. 1964 SC 993 [LQ/SC/1963/294] . Mr.Shelat submitted that the Honble the Apex Court has held that principle of res judicata applies even at different stages of the same proceeding. He invited attention of the court to the observations made by the Honble the Apex Court in para 10 of the said judgement, which reads as under.

10. .. .. that the scope of the principle of res judicata is not confined to what is contained in S.11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. .. ..

9.3 The findings of this Court in Para 51 of the said order dated 05/10/2005, passed in Appeal from Order No. 421 of 2002 read as under:

51. Having considered the rival submissions on the point, this Court is of the opinion that Appeal From Order is filed/ restricted only against the order granting interim relief and not the order rejecting application, Exh.19, it is not open to the appellants to pray for rejection of the plaint at this stage. However, it is clarified that it will be open to the original defendants to contend that there being no prima facie case, no injunction should have been granted by the trial court.

(emphasis supplied) 9.4 From the above discussion and from the finding, it can easily be said that Appeal from Order No. 421 of 2002 which was preferred by the respondents only against order granting interim relief and not the order rejecting application exh. 19 . It had also been decided by this Court that it is not open to the appellants therein respondents original defendants herein to pray for rejection of plaint at this stage.

9.5 From the above findings of this Court, it can easily be said that so far as submissions of the rejection of plaint made by the learned senior advocate Mr. S. B. Vakil referred above on the ground that in Special Civil Suit No. 156 of 2002, the plaintiffs have pleaded an illusory cause of action and therefore, the plaint of said Special Civil Suit No. 156 of 2002 is liable to be rejected under Clause (a) of R. 11 of O. 7 of the Code, was not open for the appellants therein respondents original defendants herein to pray for rejection of plaint at that stage meaning thereby, at subsequent stage if the respondents original defendants want to raise that issue in said Special Civil Suit, the trial Court may entertain the same in accordance with law. In common legal parlance, one can interpret that at subsequent stage indirectly the liberty was granted to the respondents original defendants herein by this Court to pray for rejection of plaint under Clause (a) of R. 11 of O. 7 of the Code, if the respondents original defendants so desire. Assuming for the sake of arguments that the said liberty was granted by this Court to the respondents original defendants herein then also, it is important to note that the said liberty was given on 05/10/2005 to the respondents original defendants only and it is an admitted fact that after 05/10/2005, up to 07/03/2013, the said liberty has not been exercised by the respondents original defendants herein and during the said period, so many litigations between the parties of this proceeding had travelled up to the Hon ble the Apex Court on various issues and while remanding the matter vide order dated 13/05/2005, passed by the Hon ble the Apex Court in Appeal from Order (Civil) No. 3380 of 2005, the main dispute and challenge between the parties has been carved out and identified by the Hon ble the Apex Court as under:

It is to be noted that the legality of the appointment of Rakeshprasadji as Acharya was questioned. So, as noted above the basic controversy revolves round the question of the legality of the decision taken to remove Ajendraprasadji and the legality of the appointment of Rakeshprasadji.

9.6 It is also important to note that the order dated 05/10/2005, passed by this Court in Appeal from Order No. 421 of 2002 rejecting the said appeal, the respondents original defendants herein have carried the said order to the Hon ble the Apex Court and while dismissing the said Special Leave Petitions on 06/01/2006, the Hon ble the Apex Court has requested the trial Court to dispose of the Special Civil Suit as expeditiously as is conveniently possible preferably with day-to-day hearing. It is also pertinent to note that the trial Court had framed the issues dated 28/09/2005 vide exh. 58 in the said Special Civil Suit No. 156 of 2002 and thereafter, up to 04/03/2013, the depositions of 35 witnesses of the petitioners original plaintiffs have been recorded. On 08/03/2013, the petitioners original plaintiffs have submitted application exh. 936 for adjourning the said Special Civil Suit and the learned trial Court has disposed of the same on the ground that after hearing of the order dated 08/03/2013, passed below exh. 1 be concluded, further proceedings regarding evidence can be considered. It is pertinent to note that the said order dated 08/03/2013 passed below exh. 1 in Special Civil Suit No. 156 of 2002 has been reproduced in Para 1 of this order and the same is challenged by the petitioners original plaintiffs by preferring this petition.

10. From the above discussion, it can easily be said that the issue of rejection of plaint on the ground of non-disclosure of cause of action under O. 7 R. 11(a) of the Code was raised by the respondents original defendants herein in Appeal from Order No. 421 of 2002, which was objected by the petitioners original plaintiffs as referred above on the ground of principles of res judicata. It is the fact that this Court has not decided the said issue at that point of time meaning thereby, liberty was given to the respondents original defendants, who have not exercised / utilized the said liberty up to 07/03/2013 and who are willingly taking active part in recording of evidence and as such, 35 witnesses of the plaintiffs have been cross-examined by the respondents original defendants. Thus, under the circumstances, it can be said that respondents original defendants have waived their said liberty given by this Court, as referred above. Under the above-referred circumstances, now the crucial question to be decided is on 08/03/2013, instead of suo moto action taken by the Court by passing the impugned order under O. 7 R. 11(a) of the Code below exh. 1, referred in Para 1 of this order, assuming that if the respondents original defendants herein have submitted such application under O. 7 R. 11(a) of the Code on the ground that liberty has been given by this Court, whether the said action should have been maintainable under the eye of law or whether the said action of the respondents original defendants be thrown out at the threshold under the principles of res judicata and on the ground that one cannot exercise the liberty at the belated stage, approximately after 08 years counting the period from order dated 05/10/2005, passed in Appeal from Order No. 421 of 2002 or after 13 years from the date of institution of the said Special Civil Suit. Under the above discussed circumstances, can it be said that the impugned order dated 08/03/2013 is not justified in law on the ground of principle of res judicata. The answer of the same will receive, in the almost identical issue, crop up before the learned Single Judge (Coram: Honourable Mr. Justice M. R. Shah) of this Court, while deciding the Civil Revision Application No. 299 of 2011, which was decided vide order dated 14/03/2012. Para 8, 9 and 10 of the said order reproduced hereunder and in my view, the said observation, is also applicable to the case on hand:

8. Shri Mihir Joshi, learned Senior advocate appearing on behalf of the applicants has vehemently submitted that as held by the Honble Supreme Court in the case of Saleem Bhai (Supra) and Sopan Sable (Supra) the powers under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of the suit but before the judgment is pronounced. However, considering the aforesaid two decisions, it appears that there is no absolute proposition of law laid down by the Honble Supreme Court in the said decisions that even the application under Order 7 Rule 11 of the Code of Civil Procedure is required to be entertained even if submitted belatedly i.e. after a period of 5 to 10 years of filing of the suit. It is to be noted that as such the dispute before the Honble Supreme Court in the case of Saleem Bhai (Supra) was that before filing the written statement, the original defendant submitted the application to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure and during pendency of the said application, the original plaintiffs submitted the application under Order 8 Rule 10 of the Code of Civil Procedure to pronounce the judgment in the suit as the original defendants did not file the written statement and the learned trial Court dismissed both the applications and the learned trial Court deferred the hearing of the application submitted under Order 7 Rule 11 of the Code of Civil Procedure and dismissed the application submitted by the original plaintiff to pronounce the judgment and directed the original defendants to file the written statement and to that the Honble Supreme Court has held that the learned trial Court ought to have considered the application under Order 7 Rule 11 of the Code of Civil Procedure as while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, the averments in the plaint only are required to be considered and not the pleas taken in the written statement. As such there was no controversy before the Honble Supreme Court in the said decision that whether the application under Order 7 Rule 11 of the Code of Civil Procedure can be preferred belatedly. Similarly, even the decision of the Honble Supreme Court in the case of Sopan Sable (Supra) also will not be applicable to the facts of the present case. On the contrary, in the subsequent decision, the Honble Supreme Court in the case of Ram Prakash Gupta (Supra) considering the aforesaid two decisions of the Honble Supreme Court in the case of Saleem Bhai (Supra) and in the case of Sopan Sable (Supra) has specifically disapproved the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure at a belated stage after filing of the written statement, framing of the issues and cross examination.

9. Even considering the statement and the object of Order 7 Rule 11 of the Code of Civil Procedure, it appears that the plaint can be rejected at the threshold on the grounds set out under Order 7 Rule 11 of the Code of Civil Procedure so as to see that the original defendants may not have to face the gamut of the litigation unnecessarily, even if the suit is to be found to be not maintainable and/or the suit is dismissed under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, such powers are to be exercised at the earliest and not after a period of 10 years of filing of the suit.

10. Considering the decision of the Honble Supreme Court in the case of Alka Gupta (Supra) the plaint is not required to be rejected on the ground that the suit is barred by res judicata. In the said decision, the Honble Supreme Court has specifically held that unless the defendants pleads the bar under Order 2 Rule 2 of the Code of Civil Procedure and issue is framed focusing the parties on that bar to the suit, obviously the Court cannot examine or reject the suit on that ground. It is further held that the pleading in the earlier suit should be exhibited and/or marked by consent or atleast admitted by both parties and the original plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. It is further observed and held by the Honble Supreme Court in the said decision that while considering whether a second suit by a party is barred by Order 2 Rule 2 of the Code, all that is required to be seen is whether the reliefs claimed in both the suits arose from the same cause of action and the Court is not expected to go into the merits of the claim and decide the validity of the second claim. In paragraph 27 the Honble Supreme Court has further held as under;

27. The Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a Court of law. The entire object of the Code is to ensure that an adjudication is conducted by a Court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the Court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.

(emphasis supplied) 10.1 As observed by the learned Single Judge in Para 9, reproduced hereinabove, it is clear that main object of O. 7 R. 11 of the Code is to take the action of rejection at the threshold, so as to see that the original defendants may not have to face the gamut of litigation unnecessarily. Learned senior advocate for the petitioners has submitted that, in normal circumstances, Court can pass the suo moto order under O. 7 R. 11 r/w. Section 151 of the Code, while discharging his judicial duty and none has objection for the same, if the said power be exercised at the right stage. But, in the case on hand, the learned trial Judge has not exercised his power, discretion in the judicial way and so the impugned order cannot stand for a minute.

11. Judicial discretion has not been defined in any statute but it has been often said that judicial discretion means a discretion which is formed by tradition and has been disciplined by long usage in the system. When a statute given a judge a discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet. While discharging the judicial duty, a judicial balance and judicial mind is required i.e. a mind to determine what is fair and just in respect of matters under consideration.

11.1 As discussed hereinabove, the respondents original defendants herein have waived their right / liberty granted by this Court to pray for rejection of plaint under O. 7 R. 11(a) of the Code at the subsequent stage. After completion of recording of evidence of 35 plaintiffs witnesses, on 08/03/2013, the Court concerned has suo moto passed the impugned order below exh. 1, as referred above. If the respondents original defendants have preferred the application on the line of the order dated 08/03/2013, passed by the learned trial Court by his own, it would have hit under the principles of res judicata. Under the circumstances, such judicial adventurism cannot be permitted and this Court should strongly deprecate the tendency of the trial Court in not applying the settled principles and passing such impugned order, which certainly has the effect of granting wrongful and unwarranted relief to one of the parties.

11.2 This Court is quite aware with the fact that during the discharge of his judicial power and discretion, the competent judicial Court has passed the impugned order in a matter which is pending on his file and though at the first sight it appears that the said order is not bad for want of total lack of jurisdiction, but I am of the view that though at the first sight the impugned order dated 08/03/2013 appears very innocuous, but if the said action of the trial Court be allowed, it definitely gives wrong signal to the society, more particularly, when the dispute is directly related to Swaminarayan Sampraday of Vadtal Gadi, which also related to Gadhada, Junagadh Pradesh covered under the Vadtal Gadi. Under the above-referred circumstances, I am of the view that, so far as impugned order dated 08/03/2013 passed below exh. 1 in Special Civil Suit No. 156 of 2002 is concerned, the trial Court concerned is required to be restrained, in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. It has been argued by the learned senior advocate for the respondents that as learned Senior Civil Judge, who has passed the impugned order has not been impleaded as party in this petition, the same is not maintainable under Article 226 of the Constitution of India. On this point, the Division Bench of this High Court, in Principal, S. V. Doshi Girls High School Vs. Lilaben Somabhai Gadasa, reported in 2012 (2) GLH 428 has put reliance on the observations made by the Full Bench in Savitri Devi Vs. District Judge, Gorakhpur and Others, reported in AIR 1999 SC 976 [LQ/SC/1999/185] . It is observed that, It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or Special Leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice . In my view, the above observation is applicable to the case on hand.

11.3 It has also been argued by the learned senior advocate for the respondents that the Court should not issue a Writ of Prohibition as the petitioners herein, by impugned order dated 08/03/2013, have been called for hearing and they are yet to be heard by the learned trial Court and hence, this petition is premature. It is well settled that a Writ of Prohibition lies to prevent the trial Court for exceeding its jurisdiction. As referred above, the right / liberty granted by this Court to pray for rejection of plaint under O. 7 R. 11(a) of the Code at the subsequent stage has not been exercised by the respondents for more than 08 years or 13 years as referred above and by taking active part in the said proceeding, the respondents have practically waived their said right / liberty. Now, after recording of depositions of 35 witnesses of the petitioners / original plaintiffs, who have also been cross-examined by the respondents original defendants, the learned trial Court wants to put his leg suo moto in the shoes of respondents original defendants indirectly, which in my view, the learned trial Court cannot and under the circumstances, the action of passing suo moto order dated 08/03/2013 below exh. 1 in Special Civil Suit No. 156 of 2002 calling upon the petitioners to show cause as to why the plaint be not rejected under the provisions of O. 7 R. 11(a) and Section 151 of the Code, is nothing but, in my view, the learned trial Court has exceeded its jurisdiction at the belated stage, after approximately, 08 years or 13 years, as referred above and thus, the said belated action of passing the impugned order dated 08/03/2013 below exh. 1 in Special Civil Suit No. 156 of 2002 of the trial Court concerned, is not tenable under the principles of res judicata.

12. Under the above-referred circumstances, this Special Civil Application No. 2984 of 2013 deserves to be allowed and accordingly, it is allowed. Learned 3rd Additional Senior Civil Judge, Nadiad is hereby restrained from passing any further order below exh. 1 under the provisions of O. 7 R. 11(a) or under Section 151 of the Code of Civil Procedure, 1908. The impugned order dated 08/03/2013, passed by him, below exh. 1 in Special Civil Suit No. 156 of 2002, under O. 7 R. 11(a) and Section 151 of the Code is hereby set aside. Learned trial Court is further directed to comply with the order dated 06/01/2006, passed by the Hon ble the Apex Court, as far as possible.

12.1 In view of the order passed in the main Special Civil Application, no orders on Civil Applications are required to be passed and hence, the same are accordingly disposed of.