Delhi District Court
Baba Ramesh Nath vs Akhileshwar Pathak & Ors on 30 November, 2013
Baba Ramesh Nath Vs Akhileshwar Pathak & Ors
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No : 109/12
Unique ID : 02401C0714922008
In the matter of:
Baba Ramesh Nath
S/o Late Baba Shiv Nath
R/o H.No. 15, Jagdamba Colony,
Aali Village, Sarita Vihar,
New Delhi-110076 .............. Plaintiff
Vs
1. Akhileshwar Pathak
C/o H.No. 15, Jagdamba Colony,
Alli Village, Sarita Vihar,
New Delhi-110076 .................. Defendant
2) S.Chaman Singh
R/o H.No. M-44, Saket,
Near Sanatan Dharm Mandir,
New Delhi ...............Performa Defendants
Date of institution of the Suit : 13.05.2008
Date on which order was reserved : 30.11.2013
Date of decision : 30.11.2013
SUIT FOR PERMANENT AND MANDATORY INJUCNTION
JUDGMENT :-
1) Present suit was filed in the year 2008 seeking a decree of permanent injunction in favour of the plaintiff thereby restraining the defendant no.1 from doing any illegal and unlawful activities of Tantrik etc as well as putting the locks on the door of the room of the temple in his 1/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors absence comprised in the portion of temple situated at H.No. 15, Jagdamba Colony, Aali Village, Sarita Vihar, New Delhi-76 and a decree of mandatory injunction thereby directing defendant no.1 to remove the statue of Maa Kaali temporary installed by the defendant no.1 in the portion of temple situated at aforesaid address.
2) It is averred in the plaint that father of the plaintiff Baba Shiv Nath was a Saint and two plots of 50 square yards each with total area measuring 100 square yards after constructing one room and top of the temple as well as after installing Shiv Parvati Idols over there were donated by defendant no.2 S. Chaman Singh to him on 05.11.1991 and that thereafter the father of the plaintiff developed the remaining piece of land into a temple known as Jagdamba Yoeshwar Mahadev Mandir. It is submitted that plaintiff belongs to Jogi community and during the lifetime of his father had become a Baba and joined his father by performing the religious activities done by his father being his only son. It is further submitted that father of plaintiff before his death executed a Will in his own handwriting pertaining to the temple in reference, thereby showing his desire with regard to performance of activities of the temple after his death by three person including the plaintiff who become his pupil(Chela). It is further submitted that plaintiff being the pupil of Baba Shiv Nath performed all the last rites, ceremonies and that Samadhi of Baba Shiv Nath was constructed in the open space of the temple. It is further submitted that as the plaintiff had to perform so many activities of the temple as well as other social activities so plaintiff appointed defendant no. 1 as Pujari in his temple in the year 1999 for performing day to day Pooja activities, that the plaintiff on account of smooth functioning of the temple also applied for an electric connection for the temple which was sanctioned by B.S.E.S 2/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors Rajdhani Power Limited and a sum of Rs. 1900/- was deposited for electric connection on 13.01.2007 but the electric connection could not be installed due to some administrative problems, that on account of increase in value of the properties the intention of the defendant no.1 became malafide who started doing unreligious activities in the temple for earning money, that the plaintiff objected the defendant no.1 for temporarily installation of the statute of Goddess Maa Kali and not to put lock on the doors of the room in which statue of Maa Kali and other gods had been installed and that on 20.01.2008 a written complaint was lodged against the defendant no.1 and beside this even on 23.01.2008 due to unsocial and improper conduct of defendant no.1 the plaintiff was constrained to call PCR to check the illegal acts and deeds of the defendant no.1 but to no avail as the defendant no.1 was having connection with certain influential persons.
It is further averred that the for proper functioning of the temple the plaintiff had also engaged another pupil Raj Nath which is not acceptable to the defendant no.1 because of his involvement in unsocial, immoral and illegal activities, that the defendant no.1 in connivance with his associates started harassing Baba Raj Nath and a written complaint to that effect was also lodged on 21.02.2007 at PS Sarita Vihar, that on account of aforesaid illegal activities of defendant no.1 the plaintiff has clearly canceled his license on 20.04.2008 and asked him to leave the temple, to refrain from doing Tantrik activities in the temple and to remove the statute of Maa Kali but despite all requests made by the plaintiff, the defendant no.1 is still continuing with his illegal activities in the Mandir.
It is further averred that cause of action for filing the present suit arose in favour of the plaintiff and against the defendant no.1 when defendant no.1 got the electricity connection from BSES Rajdhani Power Ltd in his name, when the defendant no.1 installed temporarily statue of 3/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors Goddess Maa Kali which were against the principles of the founder of the temple Baba Shiv Nath and started doing Tantrik activities in the temple, on 20.01.2008 when the plaintiff made a written complaint to the resident welfare association for taking action against the defendant no.1, that the cause of action further arose on 23.01.2008 when the plaintiff called a PCR to put a check on the illegal activities of defendant no.1 in the temple and again on 21.02.2007 when Baba Raj Nath lodged a complaint against the defendant no.1 with SHO PS Sarita Vihar, Delhi and that the cause of action finally arose on 20.04.2008 when the plaintiff revoked the license of the defendant no.1 and asked him to remove his bag and baggage from the temple and not to lock the room of the temples.
3) It is averred in the written statement filed on behalf of defendant no.1 that the plaintiff has no locus standi to file the present suit as neither the plaintiff nor his father Baba Shiv Nath was the owner of the suit premises, that the present suit is bad for non-joinder and mis-joinder of necessary parties and thus the aforesaid case is not maintainable against the defendant no.1 and is liable to be dismissed, that the alleged cause of action arisen in the year 2007 & that the present case has been filed much after the delay of one year and thus the relief sought i.e injunction is not maintainable and is liable to be dismissed for want of latches which is not at all explained. It is further averred that the present suit is barred by Section 41(h) of the Specific Relief Act, that the plaintiff has not come to the Court with clean hands and thus the present suit is liable to be dismissed. It is denied that the two plots of 50 square yards each with total area measuring 100 square yards after constructing one room and top of the temple as well as after installing of Shiv Parvati idols over there were donated by defendant no.2 S.Chaman to Baba Shiv Nath on 05.11.1991 or 4/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors that thereafter the father of the plaintiff developed the remaining piece of land into a temple. It is submitted that the said Jagdamba Mandir was donated by Bhumidar of the said colony to the public of the said colony for purposes of performing worships. It is denied that the plaintiff during the life time of his father had ever belonged to Jogi Community and had become a Baba or joined his father in performing religious activities by his father being his only son. It is submitted that the plaintiff is antisocial element and a drunkard and he has no concern with the religious activities. It is further denied that the Baba Shiv Nath had executed a Will in his own hand writing pertaining to the temple in reference thereby showing his desire with regard to the performance of activities of the temple after his death by three persons including the plaintiff or that the during the lifetime of his father plaintiff had become his pupil or is competent to take over the activities of the temple after the death of his father. It is further submitted that the said Mandir was not the self acquired property of Baba Shiv Nath, so no question arises at all of executing any Will in favour of the plaintiff or any one and that the plaintiff has forged and fabricated the alleged Will of Baba Shiv Nath. It is further denied that the plaintiff being the Pupil of Baba Shiv Nath had performed all the last ceremonies or the Samadhi of Baba Shiv Nath was constructed in the open space of the temple. It is further denied that the plaintiff appointed defendant no.1 as Poojari in the year 1999 as he had to perform so many activities of the temple as well as other social activities and that defendant no.1 was permitted to live in the temple as a licensee. It is further submitted that after the death of Baba Shiv Nath in August 1997, the said Mandir remained locked and no worship was being performed and thus the public of the said locality appointed the answering defendant on 03.01.1998 as the priest of the said Mandir. It is further denied that the 5/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors plaintiff on account of smooth functioning of the temple had also applied for an electricity connection for the temple and a sum of Rs. 1900/- was deposited for electric connection on 13.01.2007. It is further denied that on account of malafide intentions and designs or for earning money through the wrongful means the defendant no.1 had installed temporarily the statue of goddess of Maa Kali in the end of December 2007 or was doing Tantrik activities in the temple or because of that the respect of the temple has been diminished or the same has been complained by the residence of the locality to the plaintiff or the plaintiff immediately after temporary installation of the statute of goddesses Maa Kali objected the defendant no.1 in this regard. It is further submitted that the doors of the room of the said Mandir was never locked and it is denied that on 20.01.2008 a written complaint was lodged against the defendant no.1 or besides this even on 23.01.2008 on account of the aforesaid unsocial and improper behavior and conduct of defendant no.1. It is further denied that for proper functioning of the temple the plaintiff had also engaged another Pupil Raj Nath for participating in the day to day activities of the temple and that on 21.02.2007 the said Baba Raj Nath had also lodged a written complaint against the defendant no.1 with PS Sarita Vihar, New Delhi. It is vehemently denied that on account of aforesaid illegal activities of the defendant no.1 the plaintiff has clearly cancelled the license of the defendant no.1 on 20.04.2008 or has told him to leave the temple of the plaintiff. It is further submitted that no cause of action has ever arisen in favour of defendant no.1.
It is averred in the written statement filed on behalf of defendant no.2, that the defendant no.2 is the real owner of the property in question having purchased the same for lawful sale consideration from previous owner which has also been admitted by the plaintiff. It is denied that the 6/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors father of plaintiff Baba Shiv Nath was a saint and two plots of 50 square yards each with total area measuring 100 square yards after constructing one room and top of the temple as well as after installing of Shiv Parvati idols over there was donated by the defendant no.2 to him on 0507.1991. It is further submitted that the defendant no.2 is the lawful owner of the said two plots and construction over there was also raised by him with his own funds, that the defendant no.2 never donated the said plots to the plaintiff or anybody else at any point of time, that no document of any kind whatsoever donating the plots were ever executed by the defendant no.2 in favour of the plaintiffs, that the defendant no.2 is contemplating to seek legal action by filing a suit for possession against the plaintiff or any other person in possession thereof. It is further denied that the father of the plaintiff developed the remaining piece of land into a temple known as Jagdamba Yogeshwar Mahadev Mandir.
4) In replication filed on behalf of the plaintiff, all the contrary contentions of the defendants were denied by the plaintiff and the contents of the plaint were re-affirmed.
5) On the basis of the pleadings of the parties following issues were framed on 15.09.2010 by the Ld. Predecessor Court.
1. Whether the plaintiff has no locus standi to file the present suit ? (OPD-1).
2. Whether the present suit is barred by Section 41(h) of the Specific Relief Act?(OPD-1).
3. Whether the present suit is bad for non-joinder and mis- joinder of necessary parties(OPD2).
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4. Whether the plaintiff is entitled for a decree of permanent injunction? OPP
5. Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
6. Relief.
6) Plaintiff led evidence in order to establish his case who examined himself as PW-1 by filing his evidentiary affidavit Ex. PW-1/A and relied upon the documents i.e site plan exhibited as Ex. PW-1/1, photocopy of election Identity Card exhibited as Ex. PW-1/2, Photocopy of Will of Baba exhibited as Ex. PW-1/3, Seven Photographs exhibited as Ex. PW- 1/4(colly) and photocopy of electricity bill exhibited as Ex. PW-1/5, the document Ex. PW-1/6 was de-exhibited as the same is not on record. The plaintiff also brought witnesses namely Baba Raj Nath(PW-2) and Smt. Sarbati Devi(PW-3) who were also examined, cross examined and discharged. Thereafter, the plaintiff evidence was closed. Defendant no.1 examined himself as DW-1 in his defence and relied upon the documents i.e photocopy of resolution exhibited as DW-1/1, photocopy of invoice regarding amplifier and mike exhibited as Ex. DW-1/2(objected to as to mode of proof), copy of letter written to M.L.A exhibited Ex. DW-1/3 marked as Mark A, demand note issued for electricity connection Ex.DW- 1/4 is de-exhibited as the same is not filed on record, electricity bill exhibited as Ex. DW-1/5, bill/ cash memo of the statue of Maa Kali etc exhibited as Ex. DW-1/6(A to D)(colly) and photographs exhibited as Ex. DW-1/7(colly). The defendant also brought witnesses namely Sh. Pratap Narain(DW-2), Sh. Subhash(DW-3) and Smt. Asha Srivastava(DW-4) who relied upon the documents which were already exhibited by the defendant no.1 in his evidence and were also examined, cross examined and 8/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors discharged. The defendant no.2 Sh. Chaman Lal also examined himself as DW-2 in his defence who was cross examined by plaintiff only and not by defendant no.1. The DE was closed on recording of statement of defendant no.1 and defendant no.2 after which matter was fixed for final arguments.
7) After carefully going through the material available on record and hearing the arguments advanced by counsels for the parties, the issue- wise findings of this court are as under:-
Issue No.1 Whether the plaintiff has no locus standi to file the present suit ? (OPD-1).
Onus to prove this issue was on the defendant no.1 who took the preliminary objection in the written statement that plaintiff has no locus standi to file the present suit as neither the plaintiff nor his father Baba Shivanath was the owner of the suit premises. Perusal of the record and the prayer clause of the suit reveals that the main contention of the plaintiff is that the defendant no.1 a Pujari is carrying out Tantrik activities in the suit premises which amounts to the misuse of the temple premises and keeps the room of the temple where the idol of goddess Kali has been installed by defendant no.1 locked during his absence which is causing inconvenience to the common people including the plaintiff. The locus to file a suit like the present one based on aforesaid contentions can not be restricted to the owner of the suit property where the temple is constructed as such an interpretation of the word locus is not applicable in the present facts. Anyone, whose religious sentiments and activities are being affected from the alleged conduct of defendant no.1 can seek the 9/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors reddressal of his grievances by filing a suit because everyone has got a right to approach the Court for enforcement of his right to protect the worshiping place from the alleged activities which even affect the basic socio-religious fabric of the society as well as individual civil rights. So it is immaterial that the person suing is not the owner of the suit premises as such rights exist and accrue not because of ownership or other legal status but because of the specific activities like worshiping being done at the suit premises. It is also pertinent that the defendant no.1 has neither specifically taken the plea nor proved the same that the plaintiff is not concerned with the temple activities in any manner implying that the plaintiff is otherwise also not ousted from the temple activities which gives a prima facie right to object to any wrong being committed in the premises. So, it can not be said that plaintiff has no locus standi to file the present suit. This issue is thus decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether the present suit is barred by Section 41(h) of the Specific Relief Act?(OPD-1).
Onus to prove this issue was on the defendant no.1 who took the preliminary objection in the written statement that the suit is barred by section 41(h) of the Specific Relief Act but did not explain as to how the suit is barred or as to what other equally efficacious remedy is available to the plaintiff apart from filing this suit. Plaintiff denied in the replication that the suit is barred u/s 41(h) of the Specific Relief Act and affirmed that plaintiff has no other equally efficacious remedy except the present suit.
Perusal of the record also shows that apart from filling the present suit for seeking rederessal of the alleged grievances by way of reliefs as 10/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors mentioned in the prayer clause, there does not exist any other equally efficacious remedy. So a bald preliminary objection not supported with any explanation or evidence is not sufficient to infer that there exists an equally efficacious remedy barring the present suit u/s 41(h) of Specific Relief Act. So, it can not be said that the suit is barred u/s 41(h) of Specific Relief Act. This issue is thus decided in favour of the plaintiff and against the defendant.
Issue No.3.
Whether the present suit is bad for non-joinder and mis-joinder of necessary parties(OPD2).
Onus to prove this issue was on defendant no.2 who took the preliminary objection in the written statement that suit is bad for non- joinder and mis-joinder of necessary parties but did not explain as to who else should have been made party to the suit or who has been wrongly impleaded as a party. Plaintiff denied in the replication that suit is bad for non-joinder or misjoinder of parties as all parties necessary to the suit have been arrayed as parties. Perusal of the cause of action and prayer clauses of the plaint reveals that specific allegations as well as specific reliefs have been levelled and claimed against the defendant no.1 while it is specifically mentioned in the plaint that no relief has been claimed against defendant no.2 who has been arrayed a proforma defendant. Furthermore the record does not reflect non-joinder or mis-joinder of any necessary or proper party. So, bald preliminary objection not supported with any explanation or evidence in view of the aforesaid discussion is not sufficient to infer that the suit is bad for mis-joinder or non-joinder of necessary party. So, this issue is decided in favour of plaintiff and against the defendant.11/17
Baba Ramesh Nath Vs Akhileshwar Pathak & Ors Issue No.4 & 5 Whether the plaintiff is entitled for a decree of permanent injunction? OPP Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
Both these issues being interconnected are decided together. At the outset, it is made clear that findings on these issues should not be taken to mean that this court is recognizing any right, title, or possessory title and interest of the plaintiff or defendant no.1 in the suit property in the capacity of owner or occupier thereof. Record clearly shows that defendant no.2 admittedly is the owner of the suit premises. The alleged donation or gift of the suit premises by defendant no.2 to father of plaintiff does not amount to any transfer recognized under the Law because admittedly no written documents was executed by the defendant no.2 in favour of plaintiff's father in respect of the alleged donation or gift of the suit property which is necessary requirement for a valid gift under the 'Transfer of Property Act'. So, the father of the plaintiff himself had no right, title or interest in the suit property except that of a licensee for the purposes of worshiping which indicates that the alleged Will of plaintiff's father based on which the plaintiff appears to be claiming himself as owner or to have inherited the priest-ship based upon which he inducted the defendant no.1 as licensee is of no value in the Eyes of Law. Moreover, the alleged Will Ex. PW-1/3 has not been proved as per Law. So, no reliance can be placed upon the same. Similarly, defendant no.1 can not be considered to have acquired any right just by getting electricity meter installed in his name and by averring that he has been appointed a priest by a local people who in their personal capacity do not have any 12/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors authority to appoint a priest without being members of any registered body incorporated for managing the affairs of the temple which admittedly does not exist. Moreover, the alleged resolution Ex. DW-1/1 by virtue of which the defendant no.1 is alleging that he was appointed as a Pujari by the local people has not been proved as per Law. So, it is clear that neither the plaintiff nor the defendant have got any right, title or interest in respect of ownership and permanent possession of the suit premises.
In view of the aforesaid discussion, both the aforesaid issues are being decided in the larger interest of justice on the basis of the admitted fact that defendant no.1 is conducting the Puja activity in the temple irrespective of the facts that he was inducted as a priest or licensee by the plaintiff or the local people.
Plaintiff affirmed his version that the defendant no.1 a Pujari is carrying out Tantrik activities in the suit premises which amounts to the misuse of the temple premises and keeps the room of the temple where the idol of goddess Kali has been installed by defendant no.1 locked during his absence which is causing inconvenience to the common people including the plaintiff as mentioned in the evidentiary affidavit and plaint by firmly denying the suggestion put to him to this effect on behalf of defendant no.1. PW-3 firmly affirmed during her cross examination conducted on behalf of defendant no.1 that she is visiting the temple daily to bring water from there and even today she had visited the temple for the said purpose indicating that the testimony of PW-3 is reliable and can be believed as she is having first hand knowledge of the matters in dispute happening in the suit premises. PW-3 voluntarily clarified that doors of the temple were locked even in the day time which goes unrebutted showing that the defendant no.1 keeps the doors locked even in the day time. PW-3 firmly testified that the she had made verbal complaint to the plaintiff 13/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors regarding Tantrik activities being done by defendant no.1 in the temple as well as about the closing of the doors in the day time which corroborates the plaintiff's version. This testimony has gone unreubutted amounting to the admission of the same on behalf of defendant no.1 as no suggestion negating it was put to PW-3 which further fortifies the plaintiff's version. PW-3 further testified during cross examination conducted on behalf of defendant no.2 that the defendant no.1 did not allow the devotes of the locality to visit the temple and he only opens it as per his own wish and will which has also gone unrebutted as no suggestion in its negation was put to PW-3 on behalf of defendant no.1 which amounts to its admission by defendant no.1 and thus substantiates the plaintiff's version in this regard. PW-2 also corroborated the plaintiff's version by firmly denying the contrary suggestions and voluntarily clarifying that statue of Radha Krishan, Hanuman Chalisa Stone and Shiv Ling were already in existence prior to the appointment of defendant no.1 for performing pooja activities, thereby falsifying the version of defendant no.1 that only the aforesaid statues have been installed by defendant no.1 and that the statue of goddess Kali was in existence prior to appointment of defendant no.1 which by way of mutual exclusion leads to the inference that the statue of goddess Kali was installed by defendant no.1. PW-2 further voluntarily clarified that the defendant no.1 closed the doors of the room of Kali Maa in the morning time which has gone unrebutted thereby corroborating plaintiff's version in this regard. Similarly, deposition of defendant no.2 to the effect that defendant no.1 by installing the statue of goddess Kali is performing Tantrik Pooja in the temple has gone unrebutted as defendant no.1 did not cross examine the defendant no.2 who further affirmed in his cross examination conducted on behalf of plaintiff that he alongwith other residents are facing problems because of the Tantrik activities conducted 14/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors by the defendant no.1 in the temple premises. The said unrebutted testimony of defendant no.2 further establishes that the idol of goddess Kali has been installed by defendant no.1 who is doing the Tantrik activities and causing inconvenience to the local people. Perusal of the record reveals that defendant no.1 failed to impeach the credit of plaintiff, his aforesaid witnesses and the defendant no.2 who have probablized that Tantrik activities are being conducted by the defendant no.1 after installing idol of goddess Kali and that the room in the temple where idol of goddess Kali has been installed by defendant no.1 is kept locked during his absence by defendant no.1 which is causing inconvenience to the common people including the plaintiff.
In order to rebut the plaintiff's version, the defendant no.1 led his evidence calling certain witnesses and filed cash memos Ex. DW-1/6 (A to D) (colly) including the cash memo dated 02.02.1997 showing that idol of Maa Kali was purchased on 02.02.1997 in order to prove that the said idol was installed prior to his appointment as Pujari in the year 1998. But the mere filing of the said vague cash memos wherein the relevant particulars of the purchaser are left blank are not sufficient to infer that the said cash memos are genuine and that the Kali Maa Idol was purchased by the cash memo vide dated 02.02.1997 until and unless the same are proved by their authors which the defendant no.1 did not prove. So, these cash memos are of no evidentiary value. Furthermore, the cash memo dated 02.02.1997 appears to have been manufactured subsequently and does not seem to be prepared 16 years ago as a cursory look by the naked eye on it indicates that the paper on which it is allegedly printed can not by any stretch of imagination be considered to be a sixteen year old paper.
Moreover, the phone numbers mentioned on the aforesaid cash memo are comprising of eight digits while it is of common knowledge that eight digit 15/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors phone numbers were introduced much after the year 1997 in our country which indicates that defendant no.1 has fabricated the cash memo in order to create false evidence implying that the Kali Maa idol was purchased and installed by him as alleged by the plaintiff. The aforesaid observations reflect gross malafides on the part of the defendant no.1 which can not be washed away by the testimonies of other defence witnesses who have been brought for the sake of corroborating the version of defendant no.1 and hence their testimonies are also of no use to support the malafide version of the defendant no.1. Moreover, the testimony of DW-2 can not be otherwise relied as he admitted that he has not filed his evidentiary affidavit, that same might have been filed by defendant no.1, that he does not know the contents of his examination in chief which was not prepared in his presence, that he also does not know the date, month and year when the examination in chief was prepared and that he is having friendly terms with the defendant for the last 15-20 years which shows that DW-2 has not deposed on the basis of his personal knowledge and is a tutored witness. Similarly, testimony of DW-3 is also unreliable as he admitted that he does not remember the facts as mentioned in his affidavit and the place where the affidavit was prepared and that he visited the Court about three times at the instance of defendant no.1 with whom he is having good relation for the past 15 years which indicates that DW-3 is not an independent and creditworthy witness.
The argument raised on behalf of defendant no.1 that there is an unexplained delay in filing the suit which debars the plaintiff from seeking any relief does not inspire the confidence of this Court because the cause of action comprises of a bundle of facts and not a single fact which in present case is continuing one since the installation of idol of Maa Kali and the continuing Tantrik activities allegedly done by the defendant no.1 as 16/17 Baba Ramesh Nath Vs Akhileshwar Pathak & Ors per the plaintiff's version which the plaintiff has probablized as discussed above.
From the aforesaid discussion it is clear that plaintiff has been successful in raising a preponderance of probability showing that defendant no.1 is carrying out Tantrik activities in the suit premises which amounts to the misuse of the temple premises and keeps the room of the temple where the idol of goddess Kali has been installed by defendant no.1 locked during his absence which is causing inconvenience to the common people including the plaintiff. So, both these issues are decided in favour of the plaintiff and against the defendant.
Issue No. 6Relief In view of the findings on the aforesaid issues, suit of the plaintiff is hereby decreed in favour of plaintiff and against the defendant thereby restraining the defendant no.1 from doing any Tantrik activities as well as putting the locks on the door of the room of the temple in his absence comprised in the portion of temple situated at H.No. 15, Jagdamba Colony, Aali Village, Sarita Vihar, New Delhi-76 and a decree of mandatory injunction thereby directing defendant no.1 to remove the statue of Maa Kali temporary installed by the defendant no.1 in the portion of temple situated at aforesaid address.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (VIPLAV DABAS)
today i.e on 30.11.2013 CJ-11/CENTRAL/DELHI
30.11.2013
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