Allahabad High Court
Ashok Kumar Jain vs Management Committee Sri Mahaveer ... on 5 December, 2019
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- CIVIL REVISION No. - 171 of 2019 Revisionist :- Ashok Kumar Jain Opposite Party :- Management Committee Sri Mahaveer Bhagwan, Asthapit Sri Digambar Jain Panchayti Mandi And 19 Others Counsel for Revisionist :- Praveen Kumar,Onkar Nath Vishwakarma,Pradeep Kumar, Sr. Advocate Counsel for Opposite Party :- Satyendra Narayan Singh Hon'ble Jayant Banerji,J.
Heard Shri Pradeep Kumar, learned Senior Advocate assisted by Shri Onkar Nath Vishwakarma and Shri Om Prakash, learned counsel for the revisionist and Shri Satyendra Narayan Singh, learned counsel appearing for the respondent no. 1.
This revision has been filed against the order dated 29.8.2019 passed by the Additional District Judge, Court No. 1, Muzaffar Nagar in Original Suit No. 1 of 2016 (Management Committee Vs. Naveen Kumar Jain and others) whereby the application bearing Paper No. 86Ka filed by the revisionist for impleadment/amendment of revisionist in place of Ramesh Chand Jain as plaintiff in the original suit has been rejected.
The plaintiff-opposite party no. 1 instituted a suit praying for a mandatory injunction directing the respondents to hand over the properties of the temple, FDR, bank balance and the entire accounts. Further a declaration was sought that the defendant no. 1, 4 to 7, 9 and 10 and their family members are not entitled to the prayers and other activities of the temple. The description of the plaintiff in the plaint is as follows:
"????????? ????? ?????? ???? ?????? ?????, ??????? ???? ??????? ??? ??????? ??????, 17 (?????), ??-18 (??????) ??, ???? ???, ?? ?????, ?????????? ?????? ?????????? ???? ???? ???? ???, ??? 70(?????) ???? ????? ???? ???? ?????? ??? ?????? ???? ??? 182 (?? ?? ?????), ???????, ?? ?????, ?????????? |"
"Management Committee Idol Shri Mahaveer Bhagwan, established Shri Digamber Jain Panchayati Temple, 17(seventeen), D-18 (eighteen) D, Chaudi Gali, Nai Mandi, Muzaffarnagar through Secretary Shri Ramesh Chand Jain, age 70(seventy) years son of Late Sheetal Prasad Jain, resident House No. 182(one hundred eighty two), Patel Nagar, Nai Mandi,, Muzaffarnagar."
(English translation by Court) During pendency of the suit, an application under the provisions of Order 1 Rule 10(2), Rule 8A, Rule 1, 8 and Order 6 Rule 17 and Section 151 of Code of Civil Procedure was filed bearing Paper No. 86ka by one Shri Ashok Kumar Jain, who was, admittedly, not a party to the suit, claiming himself to be the undisputed president of the Management Committee of the Idol Sri Mahaveer Bhagwan situated at Sri Digamber Jain Panchayati Mandir, Chaudi Gali, Nai Mandi, Muzaffar Nagar. In this application it was stated that in view of the election of Ashok Jumar Jain Sarraf as President and Shri Naveen Kumar Jain as Secretary, in place of Ramesh Kumar Jain whose name appears as plaintiff in the plaint, the name of Shri Ashok Kumar Jain be substituted. Accordingly, some amendments were proposed in the plaint. The court below after considering the contentions advanced by the respective counsel for the parties as well as the record, observed that the application filed by Ashok Kumar Jain was on the basis that he was elected unopposed on 8.4.2018 and he has asked for being substituting/transposed in place of Naveen Kumar Jain as plaintiff. The court below observed that the plaintiff in his objections, has denied the convening of any meeting of the general body by the governing body, and the unopposed election of the governing body, and that Naveen Kumar Jain was elected as the secretary of the Management Committee. The court below observed that as per the record Naveen Kumar Jain exists as the defendant no. 1, therefore, the plaintiff and the defendant no. 1 have conflict of interest. The court therefore observed that in the suit under the circumstances the defendant no. 1 can only place his case or the case of the so called governing body. The court observed that under the circumstances no appropriate grounds exists in the application of Ashok Kumar Jain, to remove the name of the plaintiff and to add another person's name in his place. The court further observed that the suit was instituted after obtaining permission of the court under the provisions of Section 92 CPC and as such there was no requirement or basis for substituting the defendant no. 1 as the plaintiff in the suit. The application Paper No. 86Ka was accordingly, dismissed.
The contention of Shri Pradeep Kumar, learned Senior Counsel for the revisionist is that the court below has misdirected itself in presuming that the application filed by Ashok Kumar Jain was one of transposition. He stated that he was elected unopposed as the President of the Management Committee and therefore he had sought to be impleaded as a plaintiff after striking off the name of Ramesh Chand Jain. Shri Pradeep Kumar has referred to the judgement of the Supreme Court in the case of Devendra Kumar Sarewgee and others Vs. Purbanchal Estates (P) Ltd. and others reported in (2006) 9 SCC 199.
On the other hand, Shri S.N. Singh, learned counsel for the plaintiff-respondent no. 1 contends that the present revision has been filed by the revisionist only to delay the proceedings of the suit in the court below. It is his contention that the matter is very contentious and has repeatedly engaged the attention of this Court in proceedings arising out of that suit. Learned counsel has referred to an order passed by a Bench of this Court on 3.5.2017 in Matters Under Article 227 No. 2723 of 2017 (Ramesh Chandra Jain Vs. ADJ, Court No. 2, Muzaffar Nagar and 19 others) for expeditious disposal of the suit. It is contended that the revisionist Ashok Kumar Jain was not a party in the aforesaid suit and the application was filed by him in the court below only to obfuscate the matter and to delay the proceedings of the suit. It is stated that the applicant is not entitled to be substituted or impleaded in place of Ramesh Chand Jain.
As noticed above, the suit was filed by the Management Committee of the Idol of Sri Mahaveer Bhagwan situate at Sri Digamber Jain Panchayati Mandir, 17 D- 18 D, Chaudi Gali, Nai Mandi, Muzaffer Nagar through its secretary Shri Ramesh Chand Jain, Age 70 years s/o Late Sheetal Prasad Jain r/o House No. 182, Patel Nagar, Nai Mandi, Muzaffar Nagar. Naveen Kumar Jain was impleaded as the defendant no. 1 in the aforesaid suit along with 18 others. In the opening paragraph of the suit which was instituted under the provisions of Section 92 CPC, the averment is that Shri Ramesh Chand Jain is the secretary of the plaintiff-society and the suit is for injunction and declaration. In the application filed by Ashok Kumar Jain dated 5.3.2019 it has been stated that on 18.4.2018, the elections were held after three years in which Ashok Kumar Jain Sarraf was elected as president and Shri Naveen Kumar Jain was elected as secretary. It was stated that Naveen Kumar Jain was the former president of the Committee who is the secretary of the Committee and is the defendant no. 1. It was therefore stated that for pursuing the plaint, the name of the president Ashok Kumar Jain be substituted in place of the secretary. Certain amendments were accordingly sought in the body of the plaint. Objections dated 5.4.2019 were filed by the plaintiff to that application which is enclosed as Annexure No. 2 to the affidavit. In these objections it was stated that no general body meeting of Sri Digamber Jain Mandir, Nai Mandi Muzaffar Nagar was held on 8.4.2018 and neither was any governing body constituted and the documents furnished by Ashok Kumar, who is not a party to the suit, are fraudulent and fabricated. It is stated that after 6.1.2015 no elections to the governing body of Shri Digamber Jain Panchayati Mandir was held.
It needs need to be noticed that the application Paper No. 86Ka that has been filed by the revisionist refers to Naveen Kumar Jain, the defendant no. 1 in the suit as having been elected in the elections allegedly conducted on 8.4.2018. It is not disputed by the learned counsel for the parties that permission under Section 92 was granted by the court and thereafter the proceedings of the suit commenced. It is also not disputed that Shri Naveen Kumar Jain whose name finds in the application aforesaid Paper No. 86Ka is the defendant no. 1 in the suit which fact is evident from perusal of the plaint that has been enclosed with the supplementary affidavit filed by the revisionist. The plaintiff is the Management Committee of the suit of Sri Mahaveer Bhagwan situated at Sri Digamber Jain Panchayati Mandir through its secretary Shri Ramesh Chand Jain. Therefore, unless the secretary of the society assents to the amendment/impleadment application filed by the revisionist Paper No. 86Ka, it cannot be said that the revisionist is entitled to be substituted in place of secretary Shri Ramesh Chand Jain as plaintiff.
The judgement of the Supreme Court relied upon by the learned counsel for the revisionist was passed in execution proceedings in a suit for mesne profit in which the respondent no. 1 in the Civil Appeal before the Supreme Court sought impleadment in place of one Hira Lal Sarawgee who sold his undivided share of the property in dispute to the respondent no. 1. In that case the executing court declined to implead the respondent no. 1 as a party in place of Hira Lal Sarawgee, which order was challenged in revision before the High Court and the High Court has set aside the order passed by the executing court and the respondent no. 1 was ordered to be impleaded as a party-respondent in the execution proceedings. The Supreme Court had observed that in a case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing on a lis pendens transferee on record is not as of right but in the discretion of the court. The Supreme Court, accordingly, found no fault in view taken by the High Court in impleading the respondent no. 1. The appeal before the Supreme Court was, accordingly, dismissed.
The instant case has an entirely different factual narrative. The revisionist is not a transferee pendente lite who can claim impleadment. The revisionist is an complete outsider to the proceedings in the suit, he not even being a party therein. The suit being contentious and instituted under the provisions of Section 92 CPC, is a lis between the parties therein. The application of the revisionist for impleadment or substitution in place of Ramesh Chand Jain as secretary and as a plaintiff, under the facts and circumstances of the case, was rightly rejected by the court below.
In view of the aforesaid, this revision lacks merit and it is, accordingly, dismissed.
Order Date :- 5.12.2019 A. V. Singh