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Lal v B.S Shankar & Co Pte Ltd [2025] FJHC 630; HBC162.2025 (17 September 2025)

IN THE HIGH COURT OF FIJI
IN THE CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No. HBC 162 OF 2025

BETWEEN: RAM LAL, AMAR PRASAD and VIJAY NARAYAN
1^st PLAINTIFF

AND: AVINESH DUTT SHARMA
2^ND PLAINTIFF

BETWEEN: B.S SHANKAR & CO. PTE LTD
1^ST DEFENDANT

BETWEEN: RAM CHAND as Director of BS SHANKAR & CO. PTE
LTD
2^ND DEFENDANT

For the Plaintiffs : Ms. Prasad. M
For the Defendants : Mr Nand. S

Date of Hearing : 4 July 2025

Before : Waqainabete-Levaci, S.L.T.T, Puisne Judge

Date of Decision : 17 September 2025

R U L I N G
(Application for interim Injunction to continue)

INTRODUCTION

1.0 A temple located on the Navua River just beside the Navua Town is now the centre of dispute between the Santan Dharam Onkar Mandali (referred to as the religious body) Trustees and the land owners. The Plaintiffs are Trustees of the religious body located on Certificate of title Number 45601 on Lot 1 of DP No 1066 formerly known as Certificate of Title No 25631 on Lot 1 on DP 7658 of Navua (referred to as the ‘Mandir’),

2.0 The Mandir was initially built a long time ago, during the indentured system. The land on which the Mandir is located was initially sub-divided from a bigger piece of land, thereafter registered under the name of the 2^nd Defendant.

3.0 The Trustees of the religious body intends to repair and renovate the Mandir, for which the roof is suffering from leaks and requires proper fencing. The Trustees of the religious body, had then entered into a Memorandum of Understanding with the landowners over the usage of their property for religious purposes, more particularly the use of the Mandir.

4.0 In their Statement of Claim, the Plaintiffs, who are the Trustees of the religious body, allege that the Defendants have not complied with the Memorandum of Understanding and had stopped them from properly practicing their devotion and Hindu activities.

5.0 The Plaintiff had also filed an Ex-Parte Summons seeking for an interim injunction against the Defendants to allow them and their followers to enter and practice their religious beliefs freely.

6.0 After a hearing the an Ex-Parte Summons on 5 May 2025, Orders granted were as follows:

(1)Defendants to pen the Shree Sanatan Dharam Shiva Om Kaar Ramayan Mandali Premises gate;

(2)The Defendants, agents or servants are restrained from interfering or causing disturbances to the Plaintiffs in operation of the Shree Sanatan Dhayaram Shiv Om Kaar Ramayan Mandali and in practice of their weekly Tuesday Ramyan, celebration of hindu festivals and other cultural programs;

(3) That orders (1) and (2) continue unless court determines otherwise;

(4) No Order as to costs.

7.0 The Orders and the Summons was served Inter-Parte and the parties appeared before the Court to argue as to whether the injunctive orders should continue or otherwise. The Court thereafter heard the parties on their submissions relying upon their Affidavits.

AFFIDAVITS

8.0 The Defendants have filed their Affidavit in Opposition challenging the locus of the Plaintiffs to bring the action when the nominated and registered trustees were Daya Ram Tiwari, Binesh Prasad, Jagdish Prasad, Vickram Sharma and Jagendra Singh Trustees.

9.0 The Defendant deposed that despite a court order to allocate ownership of the Mandir to the 1st Defendant, the 1^st Defendant agreed to terms of settlement to execute the plan for the purposes of excision of the area in favour of the Plaintiffs, enabling them to practice their Hindu religious activities in the Mandir.

10.0 The deponent denied being a registered Trustee and denied that it was agreed that the 2^nd Plaintiff was to be the caretaker for the property.

11.0 The Defendant had agreed to the weekly Ramayan programs to be conducted in the Mandir. He also denied that the Memorandum of Understanding was lawful as it was not signed by the registered trustees.

12.0 Finally he admitted that it was the 2^nd Plaintiff that was creating problems in the Mandir and should not be allowed to carry out the Mandali from the property.

SUBMISSIONS

13.0 In their submissions, the Defendants argued that the Plaintiffs have failed to show their appointments under law in accordance with the Religious Bodies Registration Act 1881 and hence their actions are null and void. Therefore any statutory requirements not complied with cannot be bypassed by informal arrangements, more particularly minutes of a meeting nominating new Trustees.

14.0 Referring to the case of American Cynamid -v- Ethicon Ltd and the case of Hubbard -v- Vosper and Another, the Defendants argued that there is no serious question to be tried as the land was rightfully owned by the Defendants, a donation without proper registration was unenforceable.

15.0 That there is no irreparable harm suffered. That damages would be an adequate remedy and that parties have access to the temple at times agreeable by the Defendant, contrary to the allegations by the Plaintiffs.

16.0 Finally that on a balance of convenience that minimal harm would arise if injunction was removed as there are other temples in Navua where the plaintiffs can use to offer their devotions. Furthermore, the Plaintiffs have failed to show evidence that they were not allowed to worship at the Mandir on the property and failed to show losses as a result of not worshipping at the Mandir. Given that trial has not commenced, courts should not grant injunctions until the evidences is heard and determined.

17.0 In the Plaintiffs submissions, the 2^nd Defendant is listed as a Trustee of the minutes of the meeting on 17^th April 2023 which was annexed to the Affidavits of the Plaintiff. The same 2^nd Defendant had executed a Memorandum of Understanding, annexed in the Affidavit which reflected that he was Trustees of the Mandali. There is also annexed, a letter confirming in writing his appointment as Trustee of the Mandali and Director of the 1^st Defendant.

18.0 In response the Defendants made reference to the Annexures in the Plaintiffs affidavit in which the Court Ordered that that the plans be registered and that the Defendant execute a partial transfer and to re-convey the area consisting of the temple and Bhawan in favour of the Plaintiff.

19.0 The alleged governing body, Bhakti Marag Navua was registered under the Charitable Trust Act. Under section 31 of the Charitable Trust Act, a Charitable Trust is prohibited from governing a religious body which has been registered under the Religious Bodies Registration Act.

20.0 Plaintiff thereafter argued that the Memorandum of Understanding was not defective. Moreover that the 1^st Plaintiff was the priest and president of Bhakti Marag Navua. Although he denies, Plaintiff submits that from the Affidavits, the 2^nd Defendant was a Trustee, nominated by devotees, of the religious body.

LAW AND ANALYSIS

21.0 Order 29 rules (1), (2), (3) ,(4) and (5) of the High Court Rules empowers the Court to grant injunctive reliefs as follows:

• (1) An application for the grant of an injunction may be made by any party before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s writ, originating summons, counterclaim or third party notice, as the case may be.
  
• (2) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.
  
• (3) For the purpose of enabling any order under paragraph (1) to be carried out the Court may by order authorize any person to enter upon any land or building in the possession of any party to the cause or matter.
  
• (4) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into the Court or otherwise secured.
  
• (5) An order made under this rule may be made on such terms, if any as the Court thinks just.
  

22.0 In Sharma -v- Sharma [2024] FJCA 33; ABU 0015.2024 (28 November2024) Premalatika JA, Qetaki JA and Clark JA stated:

“[25] An injunction is an equitable remedy granted at the discretion of the court. The power which the court possesses to grant an injunction should be cautiously exercised only on clear and satisfactory grounds. An application for an injunction is according to some an appeal to an extraordinary power of the court and the applicant is bound to make out a case showing clearly a necessity of its exercise: Hubbard & Another v Vosper & Another [1972] 2QB 84 and American Cyanamid Co v Ethicon Ltd (supra) where Lord Diplock laid down certain guidelines for the courts to consider in deciding whether to grant or refuse an interim injunction which are still regarded as leading source of the law on interim injunctions . They are:

(1) Whether there is a serious question to be tried at the hearing of the substantive matter;

(2) Whether the party seeking an injunction will suffer irreparable harm if the injunction is denied, that is whether he could be adequately compensated by an award of damages as a result of the defendant continuing to do what was sought to be enjoined; and

(3) In whose favour the balance of convenience lies if the injunction is granted or refused.

These principles have been adopted and applied in our courts: Pacific Timber Development Limited v Consolidated Agriculture Fiji Ltd, (supra) and Digicel (Fiji) Ltd v Fiji Rugby Union, (supra) are examples and there are numerous other cases.”

23.0 In Chinna -v- Wati [2024] FJCA 139; ABU 077.2022 (26 July 2024) where the Court of Appeal ruled that a grant of injunction and refusal to dissolve the injunction when there was no cause of action on foot, the Applicant had failed to make material disclosure to court that their Statement of Claim had been struck out earlier (per SC decision in Wakaya Limited v Chambers (2012) FSC9) hence there was no serious question to be tried, there was no undertaking by the Applicant for damages, there was no need to consider balancing on convenience as the procedural aspects were no longer on foot and that there was no formal application for consolidation requiring him to erroneously grant consolidation.

24.0 The Court must consider the principles in light of the Respondents Affidavits.

Serious Question to be Tried

25.0 The Defendants argue there is no serious questions to be tried, having raised questions on the validity of their locus as unregistered Trustees to pursue the claim and the validity of the Memorandum of Understanding duly executed by unregistered Trustees.

26.0 The Plaintiffs have argued otherwise, submitting that all the Trustees were duly nominated and appointed in accordance with the Constitution of the religious body, one of which was the Defendant. The appointment of the new Trustees was noted and minuted.

27.0 When the application was made before the Court, it was not disclosed that the Plaintiffs had not registered their new Trustees in accordance with the Religious Bodies Registration Act 1881.

28.0 Section 4 of the Trustees Act allows for the appointment of new trustees to replace the current trustees in accordance with the instrument creating the Trust. The instrument creating the Trust for religious bodies is the Religious Bodies Registration Act 1881 which appoints trustees in section 4, enables the Trustees to be sue and be sued in section 3, and empowers the Trustees to hold lands in sections 6,7,8 and 9 of the Religious Bodies Registration Act 1881.

29.0 Section 4 of the Religious Bodies Registration Act 1881 requires that any removal and alteration of trustees names requires new memorials to be signed and registered in accordance with section 3 of the Religious Bodies Registration Act 1881 and until the new memorial is signed and registered at the Registrar of Titles, all registered trustees remain as existing trustees.

30.0 The Affidavit in Opposition of Ram Chand appends the Registered Trustees of the said religious body consisting of Daya Ram Tiwari as the President, Binesh Prasad as secretary, Jagdish Prasad as the Treasurer, Vickram Sarma as Trustee and Jagendra Singh as Patron who were registered in the Registrar of Titles in 1988.

31.0 The Plaintiffs do admit that they are not registered as trustees in accordance with the Religious Bodies Registration Act 1881. There is a constitution that was registered together with the memorial in 1988. The constitution stipulated the powers and responsibilities of the Trustees. The Constitution also provided procedures for the nomination of Trustees to replace and remove the newly registered Trustees.

32.0 The Plaintiffs argue that it was based on the procedures in the Constitution, that they had replaced the Trustees. The Trustees themselves had sort to resign due to ill health or other reasons. One or two of the Trustees have passed away. The Constitution enabled the appointment of the new trustees and acceptance of the resignation of the old trustees, who were still alive then. Hence it would not be effective, for operative purposes, to rely on the existing registered trustees, who are ridden with ill health or have passed away, to continue to operate, control and run religious bodies.

33.0 The Plaintiff seeks reliefs for the manner in which the Defendants have stopped them from entering the mandir during certain times to serve and worship. The Defendants argue otherwise.

34.0 Hence their issues regarding their arguments cannot be determined now but must proceed to trial.

35.0 The Plaintiffs have also relied upon the Memorandum of Understanding claiming that the Defendants breached it by failing to comply with the conditions enabling the Marag to control and manage religious activities in the Mandir.

36.0 The Defendants argue that the Plaintiffs have no locus as Trustees to enter into the Memorandum of Understanding and that in accordance with the Charitable Trusts Act, the Marag cannot control and operate a religious body.

37.0 The Court has previewed the provisions of section 31 of the Charitable Trusts Act.

38.0 The Charitable Trusts Act does not prohibit a charitable body from operating and controlling religious activities. Section 31 enables the Charitable Trust Act to operate independently from the Religious Bodies Registration Act.

39.0 However the Charitable Trusts Act allows for the creation of Charitable Trusts organizations like the Marag, which the Defendant is now contesting against. This argument by the Defendants cannot stand.

40.0 The Court therefore finds there are serious questions to be tried.

Damages is adequate

41.0 The Defendants argue that the relief for damages are adequate as alternative remedies if the Court awards reliefs and grants their cause of action. The Defendants argue the Plaintiffs have not provided sufficient grounds to justify that damages is insufficient.

42.0 The Plaintiffs on the other hand reiterate that a continuation of injunction will allow them to usurp their rights of worship at the Defendants property. Currently there are a number of Hindu belief based festivals and workshop programmes that they are required to adhere to.

43.0 The Plaintiff has claimed for damages although no specific amounts are sort. They also have sort for transfer of the property in which the mandir is located to them.

44.0 When considering the submissions, Court is mindful that there must be some undertaking also offered. From the affidavits, there is nothing to show that there were undertakings in the event that the injunctions had caused injurious effects to the other party. The Court notes that the organization operating the religious activities at the mandir is a charitable organization. Furthermore that the religious body is a place of solace and prayer of devotees, most being older members. The Court finds therefore that an undertaking not being rendered, should not be the only factor to hold against their application.

45.0 To dissolve the injunctive relief in the interim, will mean that devotees and members will be estopped from attending to their religious activities, contrary to their good moral intentions. No amount of monies, as reliefs can substitute and adequately provide alternative remedy for these moral values.

46.0 Furthermore, the Plaintiffs are seeking reliefs to obtain ownership of the lands. These are matters to be determined at trial in consideration of statutes pertaining to Land Transfer and Property law. Whether or not the reliefs can be granted is to be considered.

47.0 The Court therefore finds that damages is not an adequate remedy.

Balance of convenience

48.0 The Plaintiffs submit that the balance tips in their favour that it would be appropriate to continue the interim injunction.

49.0 The Defendant has indicated that whether or not injunction is imposed, the Plaintiffs are granted access to the mandir, however at times amenable to them.

50.0 Considering the cause of action and claim, the issue of locus which clearly places the Trustee in a vulnerable position as so far as their claim is concern, the Court finds that for the balance of convenience, it would be appropriate to grant the interim injunction continue.

Costs

51.0 Both parties have submitted their written submissions and made oral submissions into court as well as complied with filing of Court documents.

52.0 Court will Order that costs of $500 summarily assessed be awarded to the Plaintiffs.

Orders

53.0 The Court Orders as follows:

• (i) The interim injunction Orders granted on 8 May 2025 continue;
  
• (ii) Costs awarded to Applicants/Plaintiffs for $500.
  

.................................................................................

Hon. Justice Madam Senileba L.T.T. Waqainabete-Levaci

Puisne Judge of the High Court of Fiji