Uttarakhand High Court
Kewal Krishan Lamba And Others vs Sunil Gupta And Others on 18 July, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 264/2017
(Under Order XLIII Rule 1(r) of the CPC)
Kewal Krishan Lamba & 8 Others
.... Appellants/Defendants
Versus
Mr. Sunil Gupta & Mr. Anil Kumar Gupta
.... Contesting Respondents/Plaintiffs
Shambhu Bara Trust & 15 Others
.... Proforma Respondents/Defendants
Mr. Siddhartha Singh, Advocate, for the appellants/defendants.
Mr. Neeraj Garg, Advocate, for the contesting respondents 1 &
2/plaintiffs.
None for the proforma respondents 3 to 18/defendants.
Judgement reserved on : 12.07.2017
Judgement delivered on : 18.07.2017
Hon'ble Servesh Kumar Gupta, J.
This appeal, along with the delay condonation application (CLMA 4869/2017) seeking condonation of 84 days' delay (as calculated by the Registry), has been preferred to assail the injunction order issued by the District Judge, Dehradun on 15.11.2016 in Miscellaneous Case No. 1245/2016, which was assigned prior to registering the suit instituted along with application under Section 92 read with Order I Rule 8 CPC by the contesting plaintiffs Mr. Sunil Gupta and his brother Mr. Anil Kumar Gupta. Such injunction directs the defendants/appellants herein to maintain the status quo at the spot and not to erect any construction as well and also restrained them from creating any third party interest in whole or any part of the property, which is the subject matter of the suit which by that time could be registered in the form of miscellaneous case, as indicated above.
2Delving even to the legal controversy between the parties would not be possible without looking to the facts which have their roots more than a century ago. The whole property, which was primarily a big land (which with the passage of time, has now become the prime location of Rishikesh city) was originally owned by Mandir Shri Bharat Ji Maharaj, Rishikesh/Haridwar. Perpetual lease deeds dated 10.4.1907 and 1.4.1911 were executed to Shri Radha Kishan and Shri Shambhu Nath, S/o Mool Chand Battu Mal, R/o Delhi for construction of dharamshala and temple so that the pilgrims may find there provisional dwelling during the course of holly journey without payment of any rent in such dharamshala. The other purposes of the religious and charitable nature were disclosed in such lease deeds elaborately and, accordingly, the dharamshala was constructed. During the course of time, it was known as Sbhambhu Bara Trust, Rishikesh. For a long time, it could serve the objects and purposes, as have been entailed in such lease deeds, inasmuch as the descendants of Shri Radha Kishan and Shri Shambhu Nath drafted a deed on 27.9.1966 declaring the whole property as a part of the public religious and charitable trust, which can be reflected from the first paragraph of such deed reproduced as under:
"AND WHERE AS SHRI Radha Kishan and Shambhoo Nath had taken 4448.5 sq. yards of land on perpetual lease near Bhajan Ashram at Rishi Kesh, District Dehra Dun (U.P.) for the purpose of constructing a Dharamshala on the same for religious and charitable purpose and had with that purpose in view constructed a Dharamshala on the same for religious and charitable purpose and had dedicated the land and the 3 Dharamshala which are shown in red in the plan annexed herewith for religious and charitable purposes and the same are being used for the said purposes since 1910-1911 and are being managed and looked after by the "Trustees" who represent all the branches of the family of Shri Radha Kishan and Shri Sbambhu Nath;"
In addition to, clause 4 of such deed is also relevant and the same is reproduced as under:
"4. That no part of the trust fund shall in any case be appropriated by the Trustees for their own use, and no part of the trust property including Dharamshala shall be used by them for their personal use or accommodation for long duration."
In addition to, the descendants of the original lessees further made a declaration of the trust executing the deed on 26.5.1986 and on third page thereof, they recited as under:
"AND WHEREAS the said late Shri Radha Kishan and late Shri Shambhunath in the year 1910-11 had constructed a Dharmshala on the said land for religious and charitable purposes for affording suitable residential accommodation to various pilgrims visiting Rishikesh for taking bath in Holy Ganges and for performing religious ceremonies and worships and thus dedicated the Dharmshala for the said religious and charitable purposes."4
After mentioning the names of all the eight trustees, namely, Shri Kailash Chand Kapoor, Shri Vishnu Kumar, Shri Rakesh Kumar Kapoor, Shri Prabhat Kumar Kapoor, Shri Raghunath Kapoor, Shri Ramesh Chand Kapoor, Shri Yogeshwar Nath Kapoor and Shri Shyam Kapoor, all residents of Delhi, they recited that all the aforesaid Trustees according to the wishes and desires of the founder Trustees are the protectors and representatives of the aforesaid trust and shall act for the benefit of the aforesaid trust for religious and charitable purposes. However, in paragraph 6 of such deed, they mentioned that the trust is a private, religious and charitable and is absolute and irrevocable.
Now in this backdrop, all the aforenamed persons along with some further other descendants in the line of descendence (who might had been added as new trustees), in all 7, moved an application bearing Miscellaneous Petition No. 1/2013 before the Court of District Judge, Dehradun, under Section 36, 37 and 38 of the Indian Trusts Act on 1.1.2013 impleading the State of Uttarakhand through the DGC (Civil), Dehradun and the General Public as the opposite parties seeking permission to sell the properties of the trust by pleading that the properties are owned by the private trust and they want to sell such properties along with 10 constructed shops thereon to the persons disclosed in such application. The then District Judge granted such permission by writing a very short order (probably without looking the original lease deed and subsequent trust deeds as indicated above) just within two months and one week on 8.3.2013 because none turned up on behalf of the public at large to object and the DGC (Civil) on behalf of the Government expressed 5 his opinion that the property, in question, was under the private ownership of the applicants, so, there was no need of any permission and the application had been moved without any cause.
When the talks of sale of such property flared up in the town, a Writ Petition (M/S) No. 1774/2013 was presented before the High Court, wherein a coordinate Bench of this Court stopped the operation of the order of the District Judge granting such permission while passing the order dated 29.7.2013. During the subsistence of such stay, an application was moved by the appellants herein for extension of the operation (since the permission was granted to sell the property within three months) of the order dated 8.3.2013 and the learned District Judge extended further three months' time by way of passing the order dated 10.7.2013 to sell the property. Thereafter a Writ Petition (M/S) No. 1892/2013 was again instituted by one Mr. Neeraj Kapoor and another, wherein the order of the District Judge granting such extension of time was stayed by a coordinate Bench of this Court on 12.8.2013. Even so, the proforma respondents/defendants, who sought the permission to sell the properties, executed as many as 16 sale deeds on 10.2.2016 in favour of 9 appellants herein vending all the properties of the trust because somehow they managed to get withdrawn both the writ petitions on dated 12.3.2014 and 21.3.2014 respectively.
It can be discerned that who were the persons who managed withdrawal of those writ petitions in order to vanish the effect of the said orders of the High Court dated 29.7.2013 and 12.8.2013.
It would be worthwhile to have a note that all the 8 persons (aforenamed), claiming themselves to be the 6 owners-in-possession of the property in dispute, executed a power of attorney dated 27.5.2013 in favour of Bharat Singh Panwar (one of the purchasers and appellant no. 2 herein), Kewal Krishan Lamba (one of the purchasers and appellant no. 1 herein) and Kamesh Kumar Kashyap (brother of one of the purchasers Shri Ram Kumar Kashyap, who is appellant no. 5 herein). Such power of attorney was witnessed by Praveen Dhyani (one of the purchasers and who is also the appellant no. 8 herein). These power of attorney holders were the persons who had applied in the Court of District Judge for extension of time to sell the properties.
Having purchased the properties in different parts at the rates much below even from the circle rates prescribed by government, all these defendants appellants started to demolish the dharamshala and its parts and also began to raise their own constructions. So, the news flared up in the small town of Rishikesh and it is in this backdrop that Mr. Sunil Gupta and Mr. Anil Kumar Gupta (both real brothers) sought the permission to institute the suit under Section 92 read with Order I Rule 8 CPC on 15.11.2016 along with an application under Section 92 CPC, viz., seeking permission to institute the suit and all these grounds, a summary whereof has been highlighted hereinabove, were disclosed in the averments of such plaint. An injunction application under Order 39 Rule 1 & 2 read with Section 94 CPC was moved and further a prayer was made to appoint the receiver on the whole property under Order 40 CPC.
Learned District Judge registered that application under Section 92 CPC along with the suit as the Miscellaneous Case No. 1245/2016 and issued the notices to all the opposite parties calling their objections, if any.
7After issuance of such notice, learned District Judge considered the contents of the affidavit moved in support of the injunction application as well as Section 92 application (depicting the detailed disquisitions in the form of averments of the suit, as indicated above) and was of the view that if the defendants are not restrained, then the purpose of instituting the suit as well as the application under Section 92 CPCP shall stand frustrated. So, the learned District Judge issued the ad interim injunction order directing the defendants to maintain the status quo and also not to create any third party interest over the property in question. Apprehending the challenge to such injunction order straightway in High Court under Order XLIII, a caveat was filed by plaintiffs, the notices whereof were sent to defendants but they did not choose that course of action at such point of time.
Defendants turned up in two sets in the Court below. Defendants no. 8 to 17 filed the objections against the injunction application on 1.12.2016 under Order 39 Rule 4 CPC, while the defendants no. 1 to 7 presented their objections on 14.12.2016. Although they presented their objections against the injunction application, but continued to raise the constructions. So, the plaintiffs became constrained to move an application under Order 39 Rule 2A of the CPC on 6.2.2017 praying to the Court that an action for the contempt of the Court be kindly taken against them after initiation of the enquiry. On this application, the notices were issued to all the defendants (appellants herein) on 8.2.2017 and thereafter on 10.3.2017 fixing the date 26.4.2017 in the matter.
So, it is apparent that instead of pressing their objections against the injunction application and filing their response to the application under Order 39 Rule 2A 8 CPC, the appellants/defendants instituted the present appeal this time under Order XLIII Rule 1(r) CPC on 9.5.2017 in order to save their skin from the contempt proceedings. Such appeal came up for hearing before this Court on 11.5.2017.
Learned Counsel for the appellants/defendants has vehemently argued that the learned District Judge did not have jurisdiction to grant interim relief prior to grant of permission under Section 92 CPC to sue, prior to registration of plaint as original suit, prior to fulfilling the requirements of publication of notice to sue under representative capacity under Order I Rule 8 CPC.
It has further been argued that the interim relief application refers to the different paragraphs of the proposed plaint, which has still not been registered. So, such averments could not have been relied upon by the learned District Judge while issuing the ad interim injunction, which is impugned before this Court because such averments of the plaint could not be a part of an application under Section 92 CPC and further the injunction application under Order 39 Rule 1 & 2 CPC.
To buttress his argument, learned Counsel for the appellants/defendants has relied upon a law laid down by a Single Judge Bench of Hon'ble Kerela High Court in the case of Govindan v. Koovalasseri Sree Mahadevar Kshetram Trust and Others, reported in AIR 2002 Kerala 47, wherein it was held as under:
"Even though leave to sue under Section 92 of the C.P.C. can be granted by the Court on the prima facie satisfaction regarding the allegations made against the respondents either without giving notice to the respondents or after giving notice to the 9 respondents and hearing them, there will be no properly instituted suit under law before formal leave is granted by the Court under S. 92 of the C.P.C. and no interlocutory order in the proceedings can be passed by the Court before granting permission to institute the suit under Section 92(1) of the C.P.C."
On the other hand, learned Counsel for the plaintiffs/contesting respondents has relied upon a precedent rendered by a Division Bench of Hon'ble Allahabad High Court in case of M/s Punjab National Bank v. M/s Salim Mian & Another, 2007 (25) LCD 825. In such case, an injunction was issued against the Punjab National Bank. The Bank filed the objections under Order 39 Rule 4 CPC for the purpose of discharge of such interim injunction passed ex parte and during the pendency of such application, an appeal was also filed by the bank against the same under Order XLIII Rule 1(r) of the C.P.C. Then it was held that the appeal cannot be sustained during the pendency of an application filed for discharge of an interim injunction. A similar contention was raised by the bank's Counsel before the High Court that since several adjournments were granted by the Court below, hence their objections are not likely to be heard at the earliest.
On this argument, the Division Bench of the Allahabad High Court observed that "We are afraid that such submission cannot be a ground of appeal. We can only express our desire that the application which is pending before the Court below will be heard as expeditiously as possible."
Here in the instant case, how the appellants were motivated to file this appeal under Order XLIII Rule 1(r) 10 CPC has elaborately been discussed. The appellants/defendants have come before this Court not because several adjournments were being granted by the Court of District Judge for hearing on their objections against the ad interim injunction, but they have approached this Court in order to evade the presentation of their objections against the application moved under Order 39 Rule 2A of the CPC and also in order to escape the contempt proceedings because the appellants/defendants have miserably failed to explain the laches on their part and unnecessary delay in preferring this appeal and also in pursuing their objections before the Court below.
In yet another case, the Allahabad High Court was confronted with a similar controversy where the permission to institute the suit under Section 92 CPC was pending and such permission was not yet granted, but the Court below in exercise of the powers under Section 151 of the Code, issued ad interim injunction. Such case was Sri Vir Digambar Jain Dharamshala and Sri Mahavir Jain Dharmarth Aushadhalai & Another v. Pramod Kumar Jain & Others, reported in 2008 (6) ADJ 654, wherein Allahabad High Court has held that the suit cannot be said to have been instituted for want of permission, so the Court could not have exercised the powers conferred by Order 39 CPC. There being no other provision in the Code to deal with such a situation, in such contingency the Court will not be powerless and a mere mute spectator to the trust property being wasted and damaged, and the inherent power can be invoked to pass suitable order to prevent the wastage and damage of the trust property.
Allahabad High Court relied upon its Full Bench decision rendered in the case of Mohad. Ali v. Ahmed Ali, AIR 1945 AII 261 (FB), wherein it was held that the 11 jurisdiction to protect property pending ascertainment of rights is inherent in any Court which once has cognizance in any form of a dispute involving the execution of a trust or the administration of assets and the Court has not merely the jurisdiction, but a duty to safeguard them.
Relying upon the said Full Bench judgment of the Allahabad High Court, the Madras High Court in the case of N. Anandam v. Ayyanna Gouvder, AIR 1994 Mad. 43, has also held that an order for appointment of receiver to protect and preserve the trust properties could be made by the Court even pending disposal of the application for leave under Section 92 of the C.P.C.
Allahabad High Court has further held that applying the same analogy, the Court in exercise of its inherent power can pass suitable injunction order as well to preserve and protect the public trust properties during the pendency of application for leave under Section 92 of the Code.
In paragraph 20 of its judgment (supra), the Allahabad High Court has further held as under:
"Even the absence of a express provision in the Code to meet such contingency also cannot constitute a valid ground to hold that Court has no power to pass such order, for two reasons; "firstly, power of Section 151 can be invoked when there is no express provision in the Code to meet the situation and secondly, provision cannot be presumed to be prohibited, as a general principle unless shown to be prohibited by law as observed by Mahmood J. in the case of Narsingh Das v. Mangal Dubey (83) 5 AII 12 163 (FB) and noted by the Full Bench in Mohd. Ali (supra) as under:
"The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibition cannot be presumed."
In addition to, the law has been laid down by the Allahabad High Court in case of Basant Lal & Another v. Lakshmi Chand, reported in AIR 2007 Allahabad 32, wherein scope of Section 141 read with Order 39 Rule 1 CPC was dealt with.
Undoubtedly, the suit presented along with an application under Section 92 and an application for injunction was registered as Miscellaneous Case No. 1245/2016. So, in such miscellaneous case, the injunction could have been issued under Section 141 read with Order 39 Rule 1 as well.
In Basant Lal case, the second appeal pending adjudication was dismissed being abated. A restoration application along with setting aside abatement application as well as substitution application was moved. All these applications were pending adjudication and objections of the respondents were called. Even then the Allahabad High Court held that it was upon the Court to pass the appropriate order for injunction or stay during the pendency of proceedings on aforementioned applications. Injunctions could have been issued even against the person/persons, who were being sought to be substituted as heirs and legal representatives of the plaintiff. They 13 could not be permitted to raise the plea that since they were not parties to the litigation, hence the injunction could not have been issued against them.
So, in view of the law as has been discussed above, I am of the firm view that the impugned order dated 15.11.2016 passed by the District Judge does not suffer with any infirmity and this appeal is not only bereft of any merit, but the delay condonation application seeking the condonation of delay of 84 days is also not allowable at all because such delay was not bona fide and the appellants herein, who are the defendants before the District Judge, have not approached the Court with clean hands inasmuch as they continued to raise the construction despite of injunction order passed by the Court below and, therefore, the plaintiffs became constrained to move an application under Order 39 Rule 2A against them and the appellants/defendants though presented their objections against the injunction application under Order 39 Rule 4 CPC, but they lagged behind in pressing such objections before the Court below and came up to invoke the powers of this Court under Order XLIII Rule 1(r) CPC to save their skin from initiation of contempt proceedings against them.
I am also of the firm view that while passing the injunction order dated 15.11.2016, there certainly had been contemplations towards the averments of the plaint, which was well within his powers to be aware about the facts and controversy because there was no other source for the District Judge to acquaint himself regarding the alleged fraud played upon the Court by way of claiming the property as if belonging to the absolute private trust without having concern about its nature of religious and public charitable, as claimed by plaintiffs.
14Learned Counsel for the appellants/defendants in paragraph 5 of his appeal has pleaded that the plaintiffs/contesting respondents have no locus in the matter nor they were the beneficiaries of the said trust and further they are the real brothers and they be regarded as one person whereas a suit under Section 92 CPC, two or more persons are required to be present before the trial court.
On this aspect, I am of the view that the plaintiffs have every locus to move an application under Section 92 CPC because all the pilgrims including the plaintiffs are the beneficiaries of this trust in one way or the other. Further, being the real brothers by itself does not make them a single person because as an individual, they have their different identity. So in that way, they cannot be regarded as one single person.
Consequently, I dismiss this appeal with costs. It is hereby further observed that while hearing the application under Section 92 CPC on merits, the District Judge will have in his mind that the permission to sell the properties was accorded by the then District Judge under Section 36, 37 and 38 of the Indian Trusts Act, 1882 and perhaps that District Judge could not notice the provisions as have been entailed in the Savings clause of Section 1 of the Indian Trusts Act, which postulates that nothing in this Act shall apply to public or private religious or charitable endowments, or to trusts. Although this Court leaves it to the judicial wisdom of the District Judge to determine his own view on the merits whether the properties belong to absolutely private trust or private charitable and religious trust or public charitable and religious trust and, in either events, whether the provision of the Indian Trusts Act, 15 1882 were applicable while passing the order dated 8.3.2013 in the Miscellaneous Petition No. 1/2013.
Taking the abundant caution, it is hereby observed that the District Judge will have keen vigil on the fate of this suit along with the application under Section 92 CPC. If he deems fit, then he will not hesitate to have recourse and invoke his powers under the provisions of Order I Rule 8-(4) and Rule 8-A of the CPC lest the fate of this application as well as the suit be not identical as that of Writ Petitions (M/S) No. 1774/2013 and 1892/2013, the reasons where behind will not be difficult to discern.
Pondering over the issue that the validity of the order of District Judge dated 8.3.2013 is the core question, so, I hereby direct that the proceedings of Miscellaneous Case No. 1245/2016 and even thereafter of the suit, if the learned District Judge finds it justifiable to grant the permission under Section 92 and subsequently proceed the suit, then in the fitness of things the propriety lies that the whole matter shall be heard by the District Judge himself and may not be transferred to the Court of any Additional District Judge until and unless the contingency warrants so.
(Servesh Kumar Gupta, J.) Prabodh