Delhi District Court
Shiv Mandir Trust vs Gopi Chand Rathi Ors on 1 October, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
MCA No. 01/2017
CNR No. DLNE01-005520-2016
Shri Shiv Mandir Trust
Bhrampuri, Ghonda (Regd.)
Through its Manager
Sh. Kishor Saini
S/o Sh. Raja Ram Saini
R/o O-20, Street No.15-II,
Brahmpuri, Delhi. .....Appellant
Versus
1. Gopi Chand Rathi
2. Anil Rathi
S/o Gopi Chand Rathi
Both residents of H. No. F-30A,
Gali No.10, Bhrampuri, Delhi.
3. Nem Chand Goel (deceased)
Substituted by Sh. Sheel Chand
R/o H. No. 37, Block F,
Gali No. 10, Brahmpuri, Delhi.
4. Khoob Singh (now deceased)
5. Trilok Chand Sharma (now deceased)
6. Ramji Lal Shastri
7. Subhash Chand Sethi (now deceased)
Substituted by Sh. Mitthan Lal Singh
8. Rajender Prasad Atrish (now deceased)
MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 1 of 22
9. Prem Shankar Sharma
10. Shiv Raj Singh Rathi
11. Mitthan Lal Singhal
12. Samey Singh
13. Chandan Kumar
All care of Sh. Gopi Chand Rathi
R/o H. No. F-30-A,
Gali No.10, Brahmpuri, Delhi
14. Shri Shiv Mandir (Mauni Baba Mandir)
Nirman Evam Vikas Sewa Samiti,
Brahmpuri, Delhi.
Through It's President
Sh. Sheel Chand. ..... Respondents
Date of filing of the present appeal : 02.07.2010
Date of completion of Final Arguments : 30.09.2024
Date of judgment : 01.10.2024
Final Decision : Partly allowed
JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff, before the Learned Trial Court) against the impugned order dated 24.05.2010, titled as Shri Shiv Mandir Trust Brahmpuri, Ghonda (registered) vs. Gopi Chand Rathi & Ors in Civil Suit no. 481/2009. The application of appellant (plaintiff, before the Learned Trial Court) filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure for grant of temporary/ad-interim injunction was dismissed by the Court of the then Learned JSCC/ASCJ/G. Judge, North East District, Karkardooma Courts, Delhi. Therefore, the present appeal.
MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 2 of 22
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. Kishore Saini, Manager of Shri Shiv Mandir Trust as plaintiff and respondents that are Gopi Chand Rathi, Anil Rathi, Nem Chand Goel, Khoob Singh, Trilok Chand Sharma, Ramji Lal Shastri, Subhash Chand Sethi, Rajender Prasad Atrish, Prem Shankar Sharma, Shiv Raj Singh Rathi, Mithan Lal Singhal, Samey Singh, Chandan Kumar and Shri Shiv Mandir (Mauni Baba Mandir) shall be referred to as defendants.
3. To start with, it needs to be mentioned that the present appeal has been filed by the plaintiff/appellant qua the order of the Learned Trial Court with respect to the plaintiff's/appellant's application filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure. It is stated in that application the facts of the plaint be considered as part and parcel of the aforesaid application. Therefore, the contents of the plaint as mentioned by the plaintiff/appellant are that the plaintiff/appellant Shri Shiv Mandir Trust, Brahmpuri, Ghonda is a society registered under the Societies Registration Act, 1860 vide registration number 9127. One of the objects of said society is to manage the temple of Lord Shiva situated at Brahmpuri alongwith other connected temples. It is stated that the society also has a charitable object to open and run school, colleges, library and reading room et cetera. It is further stated that in order to carry out the aims and objects of the said society, a managing committee is constituted comprising of the President, Vice President, Manager, Deputy Manager and Treasurer alongwith other ordinary members. It is further stated that present suit is being filed by the plaintiff/appellant through it's Manager Sh. Kishor Saini, who is one of the elected members of the managing committee to carry out the objects of the said society. It is MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 3 of 22 further stated that Shri Kishor Saini had been duly authorized by the managing committee vide it's resolution, dated 14.09.2009, and 15.09.2009, to sign and verify the pleadings and to institute the present suit against the defendants/respondents. It is further stated that the managing committee of the plaintiff/appellant society had been undertaking various activities in furtherance of and for the prosecution of the various objects of the society, including religious, charitable and social functions.
It is further stated that plaintiff/appellant is maintaining a temple of Lord Shiva in Brahmpuri (Ghonda), Delhi, which is commonly known as temple "Mauni Baba" among the locals and there is big ground of vacant land owned by the said temple, which is adjacent to the said temple. This land was donated by the owner, thereof, in favour of the temple of Lord Shiva. The managing committee of the plaintiff/appellant society allows various social functions, including celebrations of marriages on the said ground against charges of fees. Apart, from this there are about five shops on one side of the said ground, which is also owned by the temple and managed by the plaintiff/appellant society which had been contributing some amount in the form of rent. It is further stated that the plaintiff/appellant through it's managing committee had been appointing the Pujari of the temple. It is further stated that as per the rules and bye- laws, only the managing committee or one of the members thereof, was authorized to collect the membership fees, fees for giving the ground for social and religions purposes and collected the rent from the shop. It is further stated that defendant/respondent number 1 is a retired police official and had never been elected to the managing committee of the plaintiff/appellant society.
It is further stated that the defendant/respondent number 1 was only an ordinary member of the plaintiff/appellant society till about January 2007, when his membership was cancelled. It is further stated that the MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 4 of 22 defendant/respondent number 1 in order to gain control over the society with the active connivance of certain other persons in or about the month of August 2004, alongwith his companions and henchmen tried to transgress upon the temple property by forcibly raising some construction work on the western gate of the temple. The executive members of the plaintiff/appellant society protested to the same, police was called and proceedings under section 107/150 of the Code of Criminal Procedure were initiated. It is further stated that during the period of October 2004 to mid 2009, defendant/respondent number 1 and his companions continued their attempts to grab the temple and its properties on one pretext or the other. It is further stated that previous executive committee of the plaintiff/appellant society had been elected for a period of three years as per the rules and by-laws of the plaintiff/appellant society and its terms was over in March 2007. Accordingly, in accordance with the rules and bye-laws a General Body Meeting was convened, on 01.04.2007, when the present executive committee was duly elected by the members of the plaintiff/appellant society. It is further stated that on or about 03.09.2009, while, the executive committee of the plaintiff society was on way to get the renovation/reconstruction work done, the defendant/respondent number 1 to 13, in connivance with each other and in conspiracy with some unknown associates/servants/henchmen, tried to disrupt the said work and even demolished a part of the shops and the toilet block as also the platform. A complaint was lodged by the plaintiff/appellant society, on 05.09.2009 through it's executive committee members with the local police.
It is further stated that defendant/respondent number 1 to 13 then under the garb of fictitious registered society with the name and style of defendant/respondent number 14 claimed himself to be the sole Trustee of the temple, after the former Trustee named Sh. Brij Bhushan had expired. MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 5 of 22 This was despite the fact that Sh. Dheer Singh, President of the executive committee has been already made, declared and admitted to be a Trustee of the temple. It is further stated that under the banner of defendant/respondent number 14 and claiming themselves to be the office bearers of defendant/respondent number 14, defendant/respondent number 1 to 13 also falsely claimed the construction of new temple by the said Samiti. It is further stated that the defendants/respondents forcibly and without any authority also had placed a writing on the wall of the temple depicting themselves to be authorized persons for booking the ground for marriage purposes despite the fact that none of the defendants/respondents had any right or interest in any manner whatsoever, in the temple and the properties of the temple. It is further stated that the claim of the defendants/respondents had always been false and baseless as the defendants/respondents had been booking the ground/vacant land of the temple against a sum of rupees 5,100/- to rupees 5,600/- whereas the plaintiff/appellant society had always limited the charges for the said ground irrespective of any private occasion to rupees 3,100/- only. It is therefore, requested that pass ad-interim ex-parte order in favour of the plaintiff/appellant and against the defendants/respondents thereby restraining the defendants/respondents through themselves as well as through their associates, assignees, servants, etc. from representing Shri Shiv Mandir Trust (Mauni Baba Temple, Brahmpuri, Ghonda, Delhi and also from collecting any fee/charges from any person on the pretext of enrolling any person as member of the said temple or on the pretext of booking the ground/vacant land of the temple or otherwise from interfering in the affairs of the plaintiff/appellant society or it's management of the temple.
4. Let us now discuss the contents of reply filed on behalf of MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 6 of 22 defendants/respondents to the application of plaintiff/appellant filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure, it is stated by defendants/respondents that the contents of their common written statement be read as part and parcel of reply. Defendants/respondents in their common written statement filed before the Learned Trial Court, stated that the suit is not maintainable as Sh. Kishore Saini is not the Manager. It is stated that minutes mentioning the election of executive committee held, on 01.04.2007, is a forged document, because only an existing managing committee can call for and hold election for new managing committee. It is further stated that as per rules and bye-laws only a Trustee can be a Pradhan. It is further stated that letter/decision, dated 30.09.1994, and as per outcome of fresh election of Managing Committee, dated 30.09.1994 and 01.11.1994 Sh. Dheer Singh was removed from the position of Trustee and a new managing committee with a new Pradhan was constituted. It is further stated that the defendants/respondents had done substantial work for the upliftment and people started appreciating the same by way of participation and monetary contribution. It is further stated that Late Raghubir Singh and thereafter Sh. Brij Bhushan Sharma had been in possession of the temple premises and other related matters. Thereafter, defendants/respondents are in the possession. It is further stated that the plaintiff/appellant being guided by Sh. Dheer Singh wanted to treat the temple as their fiefdom for generating private income from temple. The originator of the Society himself wrote that he had lost faith in Sh. Dheer Singh and hence, removed him. It is therefore requested that the abovesaid application of plaintiff/appellant filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure be dismissed.
5. Now, Learned Counsel for plaintiff/appellant has before this Court MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 7 of 22 raised specific grounds of appeal qua the impugned order dated 24.05.2010. In the appeal, plaintiff/appellant apart from reiterating the facts of plaint, contents of application it is stated that the Learned Trial Court had itself mentioned that the relief of declaration is a triable issue, but, with a self contradictory observation that there is nothing on record to show prima facie that the plaintiff/appellant is managing the affairs of the temple or are entitled to manage the same. It is stated that the existence of the plaintiff/appellant society is not denied by the defendants/respondents and the real dispute between the parties was whether the managing committee headed by Sh. Dheer Singh is the lawfully constituted managing committee and is managing the affairs of the plaintiff/appellant society? or it is the managing committee headed by defendant/respondent number 1 Sh. Gopi Chand Rathi, who is managing the affairs? It is further stated that the Learned Trial Court had failed to appreciate that plaintiff/appellant had established a prima facie case. It is further stated that the Learned Trial Court had also committed grave error in ignoring the averments of the plaintiff/appellant in paragraph number 5, 6 and 7 of the plaint that the plaintiff/appellant was maintaining a temple of Lord Shiva through a duly elected managing committee. Only the managing committee or it's authorized representative is entitled to collect membership fees and other fees for giving the ground for social and religious purpose.
It is further stated that Sh. Raghubir Singh had renounced and abandoned all his rights of Trustee in the plaintiff/appellant society and the appointment of Sh. Dheer Singh as Trustee was got authenticated through a compromise decree. It is further stated that in terms of compromise decree in Civil Appeal number 5/1992, it was not appreciated by Learned Trial Court that Sh. Raghubir Singh was not left with any right or interest in the plaintiff/appellant society in any manner whatsoever and as such, MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 8 of 22 was having no authority to remove Sh. Dheer Singh from the position of a Trustee in the plaintiff/appellant society. It is further stated that the Learned Trial Court had arrived at wrong finding by stating that the documents categorically show that the affairs of the temple are being maintained by the defendants/respondents and that they are in possession and are collecting the amounts. While, observing so, the Learned Trial Court had totally ignored and failed to take into consideration that the present managing committee was duly elected, on 01.04.2007, and was collecting membership fee et cetera from the members. It is further stated that the Learned Trial Court had failed to appreciate the fact that the real controversy between the parties was as to which of the managing committee is in charge of the affairs of the temple and it's associated properties. Instead, the Learned Trial Court had abruptly concluded that the defendants/respondents were in possession and they were also collecting amount for maintenance, by totally ignoring that the plaintiff/appellant also had placed on record various letters from persons requesting for permission from this managing committee for holding certain functions.
It is further stated that the Learned Trial Court had miserably failed to appreciate that the defendants/respondents did not produce on record any minutes of the General Body Meeting under which defendant/respondent number 1 to 13 were elected as office bearers of the so called managing committee of defendant/respondent number 14. It is further stated that as per document relied upon by plaintiff/appellant, Sh. Brij Bhushan, Leela Dhadr Tyagi, Richhpal Singh, Tikam Singh, Rati Ram Shastri, Kishan Swarup are members of the plaintiff/appellant society, Sh. Brij Bhushan being the Trustee member. All these persons were also shown as office bearers/members of the managing committee by the defendants/respondents on the face of it is wrong. It is further stated that MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 9 of 22 the defendant/respondent number 1 claimed himself to have been appointed as a Trustee by Sh. Brij Bhushan by use of a General Power of Attorney, which is not contemplated by the rules and bye-laws of the plaintiff/appellant society. In any case, the said Power of Attorney has come to an end with the demise of said Sh. Brij Bhushan. It is further stated that the Learned Trial Court had miserably failed to appreciate that the plaintiff/appellant had not only shown a prima facie case in it's favour, but, had also shown that the balance of convenience was in it's favour as it was only the plaintiff/appellant which having a duly elected managing committee headed by Sh. Dheer Singh as Pradhan and Sh. Kishore Saini as Manager. It is further stated that the Learned Trial Court had failed to ascertain and appreciate the real controversy between the parties and to arrive at a just conclusion.
It is further stated that the Learned Trial Court had committed error in observing that no documents were tendered for admission/denial on that date that is 24.05.2010, which was fixed for pronouncing orders on the application of plaintiff/appellant and further by framing the issues without hearing the parties. It is therefore requested that the order, dated 24.05.2010 passed by the Learned Trial Court on the application of the plaintiff/appellant moved under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure be set aside and thereby restrain the defendants/respondents themselves and/or through their associate, servants, assignees from representing Shri Shiv Mandir Trust Mauni Baba Temple, Brahmpuri, Ghonda (registered), from collecting any fee/charges from any person or any ground whatsoever including booking of the vacant land and also from interfering in the affairs of the plaintiff/appellant society or it's management of the affairs of the temple and associated properties through the present managing committee. Reliance is placed upon Fazza Foundation Trust Vishkhapatnam vs. Smt. MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 10 of 22 Shaheda H. Mehdi, Shekh Abdul Kayum & Ors. vs. Mulla Ali Bhai & Ors., AIR 1963 S.C. 309, Bhimasenacharya Srinivasacharya Gudi vs. Gadag Veera Naraina Dev reported in AIR 2002 Karnataka 1 and Sudhakar Verma v. Rakesh Kumar Arora reported in 113 (2004) Delhi Law Times 711. All these judgments have been perused very carefully vis-a-vis facts of the present appeal and as such they do not seem to be applicable at this stage.
6. Learned Trial Court, after hearing the submissions of plaintiff/appellant as well as defendants/respondents on the application filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure vide its order, dated 24.05.2010, opined that the defendants/respondents are managing/maintaining/taking care of the affairs of the temple and thus as such no prima facie case is being made out in the favour of the plaintiff/appellant. Therefore, interim injunction application filed by the plaintiff/appellant was dismissed. Apart from that, the issues were also framed. It is to be noted that plaintiff/appellant has also objected to the immediate framing of issues without hearing the parties.
7. It is to be noted that vide order, dated 21.08.2010, Learned Predecessor Court had dismissed the appeal against the impugned order, dated 24.05.2010. Thereafter, Hon'ble Delhi High Court vide order, dated 21.05.2012, remanded back the matter to the first appellate Court that is the present Court to decide the application under Order XXXIX Rule 1 & 2 read with section 151 of the Civil Procedure Code again on merits with the finding that the present suit is not a suit under section 92 of the Code. The order of the Hon'ble Delhi High Court is reproduced herein for the sake of brevity:-
1. Two orders have been impugned order before this Court. The first MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 11 of 22 order is dated 21.8.2010 and the second is the order dated 16.8.2011. Vide order dated 21.8.2010 the first appellate court had dismissed the appeal against the order dated 24.5.2010 vide which the application filed by the plaintiff seeking relief under Order 39 Rule 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the Code) had been declined. The impugned order had noted that this petition is primarily a petition under Section 92 of the Code and necessary permission not having been obtained the present suit in these circumstances is not maintainable. Impugned order had accordingly declined the relief sought for by the plaintiff under Order 39 Rule 1 & 2 of the Code. Second order dated 16.8.2011 had rejected the prayer made by the defendant under Order 7 Rule 11 of the Code whereby the defendant had prayed that since this suit is a representative suit and the mandatory provisions of Section 92 of the Code not having been complied with, the plaint is liable to be rejected, had been declined.
2. Record shows that the present suit has been filed by the sole plaintiff namely Shiv Mandir Trust through its manager Kishore Saini. Averments made in the plaint are contained in 28 paragraphs. This is a suit for perpetual injunction, declaration, mandatory injunction as also for rendition of accounts. Contention in the plaint is that the plaintiff is a registered society; object of the society is to manage the temple of Lord Shiv situated at Brahmpuri along with other connected temples, the society also has a charitable object to open and run schools, libraries; to carry out its aims and objects a managing committee has been constituted, present suit has been filed through its manager. Further contention is that the plaintiff through its managing committee has been appointing the Pujari of the temple and currently it has appointed Pandit Chauth Mal Sharma as Pujari since January 2005. The affairs of the temple of Lord Shiva also known as the temple of "Mauni Baba" has a duly elected managing committee and one of the members thereof has been authorized to do all acts for and on behalf of the plaintiff society: no one else on behalf of the managing committee has been authorized to collect money on behalf of the managing committee. Accounts are maintained by the treasurer. Defendant no.1 is a retired police official: in January 2007 his membership was cancelled, however, to gain control over the society he started manipulating things with the active connivance of certain other persons i.e. his supporters and henchmen. He tried to transgress upon the property of the temple; kalandra proceedings were also initiated. Further contention being that between October, 2004 to middle 2009 defendant no.1 and his companions continued to make attempts to grab the properties of the plaintiff society. Defendants no.2 to 13 have formed themselves into a registered society with the same and style of defendant 14 and claim themselves to be the office bearers whereas they are actually henchmen of defendant no. 1. Payers in the plaint have been detailed as follows:
"(a) Pass a decree for permanent injunction restraining the defendants by themselves or through their associates, servants. assignees or anybody whosoever may be claiming through or under anyone of the defendants from representing the Shree Shiv Mondir Trust Mauni Baba"
Temple Bhrampuri, Ghaunda, Delhi in any manner whatsoever,
(b) Pass a decree restraining the defendants by themselves or through their associates, servants, assignees or anybody whosoever may be claiming through or under anyone of the defendants from interfering in the affairs of the plaintiff society and its management of the aforenoted temple and the properties owned by the said temple.
(c) Pass a decree restraining the defendants by themselves or through their associates, servants, assignees or anybody whosoever may be claiming through or under anyone of the defendants from collecting any amount in the form of membership fee or as charges for booking ground/vacant land belonging to the temple.
(d) Pass a decree of declaration against the defendants that the defendants are not authorised or otherwise entitled to collect any amount towards the fee of member or as charges for booking ground/scant land belonging to the temple and that the defendants have no right to manage the affairs of the temple to manage the affairs of the temple and its properties, nor they are entitled or authorized to interfere in the activities of the plaintiff society in relation to the Mauni Baba Temple and its properties.
(e) Pass a decree of declaration that the defendants are liable to render true accounts of all the amount realized by the defendants or anyone of them or by anybody else claiming through or under any of the defendants.
(f) Pass a decree of mandatory injunction directing the defendants to render the true account of all the amount collected by them as membership fee or charges of booking the ground/vacant land as stated above and thereafter to pass a decree in favour of the plaintiff and against the defendants.
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(g) Grant such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(h) To award the costs of the suit."
3. In the course of these proceedings, the present application under Order 7 Rule 11 of the Code has been filed. Contention was that the present suit in terms of its averments clearly shows that this is a suit led in a representative capacity i.e. a suit under Section 92 of the Code d the necessary mandate i.e. the permission and leave of the court not having been obtained to institute the suit which is mandatory the plaint is liable to be rejected.
4. Needless to state that the petition was contested.
5. On behalf of the appellant reliance has been placed upon a judgment reported in 162(2009) DLT 520 Hamid Ahmed Vs. Asad Mured as also another judgment reported in AIR 1971 Mysore 298 4. V. Ibrahim & Anr. V's. Mandepanda Cariappa to support a submission that where the dominant purpose of the suit is regarding the functioning of a charitable body which has actually deviated from its object of charity because of a conspiracy by some defendants, being a mis- management of the trust the suit is covered under Section 92 of the Code and leave of the court not having been sought and not having been granted the plaint is liable to be rejected under Order 7 Rule 11 of the Code.
6. To counter this argument, learned counsel for the respondent has. per contra, placed reliance upon the judgments reported in AIR 1974 SC 2141 Swami Parmatmanand Sarswarti Vs. Ramji Tripathi as also another judgment of the Apex Court reported in AIR 1952 SC 143 Pragdasji Guru Bhagwandasji Vs. Ishwarlalbhai Narsibhai.
7. A suit under Section 92 of the Code is a suit of special nature for the protection of public rights in public trust and charities. Such a suit in Fundamentally on behalf of the entire body of persons who are interested in the trust which is for the vindication of public rights. The beneficiaries of the trust which may consist of public at large may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and such plaintiffs being representatives of the public at large which is interested in the trust, such interested persons would be parties to the suit. It is a representative suit. There is also no dispute to the proposition that Section 92 mandates that where any direction is sought from the court for the administration of a trust the leave of the court is required, however, if from the allegations in the plaint it is clear that the parties to the suit wish to vindicate their individual right; there is no reason to hold that the suit has been brought under Section 92 of the Code. The object and the purpose of the suit and not the reliefs are decisive. All these are relevant factors; if allegations of breach of trust have not been substantiated or the plaintiff has not made a case for direction of the court for proper administration of a trust the foundation of the suit under Section 92 of the Code would fail if the after other ingredients are made out. This has been held in the judgment of Parmatmanand Sarswati (sорга).
8. It is in this background that the averments and prayer made in the plaint have been perused. Perusal of the same show that the individual right of the plaintiff society have been bruised and affected by mis-trust qua the society which is a duly registered society under the Indian Societies Act. The dominant purpose of the suit appears to be to address the personal and individual rights of the society coupled with a declaration of the effect that the defendant and its newly formed society would not interfere in the affairs of the plaintiff society and its management; merely because a prayer has been made for rendition of accounts which is one of the purposes mandated under Section 92 of the Code for which a suit in a representative capacity can be filed, would not necessarily entail it to be a suit under Section 92 of the Code as has been vehemently urged by the learned counsel for the petitioner.
9 There is also no dispute to the proposition that to deal with an application under Order 7 Rule 11 of the Code it is only the averments made in the plaint which have to be adverted to and not the defence sought to be set up by the defendant.
10 Even presuming that the suit property relates to a public charitable and religious trust wherein rendition of accounts has also been claimed as one of the various reliefs (noted supra) yet it is clearly not a suit which has been filed in a representative capacity, it is a suit which has been filed by the individual society to address its personal grievance, the grievances being that defendant no.14 who is acting at the behest of defendant no. 1 is unwarrantedly interfering with the affairs of the plaintiff society. The plaintiff society has also sought a declaration that the defendants are not authorized to collect any fee or any money on behalf of the plaintiff society; this is not a relief which is encompassed under Section 92 of the Code. This suit clearly falls outside the scope of Section 92 of the Code. In MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 13 of 22 this background the prayer made under Order 7 Rule 11 of the Code seeking rejection of the plaint was rightly declined. infirmity. Impugned order dated 16.8.2011 thus suffers from no infirmity.
11 The other impugned order dated 21.8.2010 was passed by the first appellate court on the premise that since the suit is a suit under Section 92 of the Code and the suit itself being not maintainable relief under Order 39 Rule 1 and 2 of the Code was declined. It had proceeded on the premise that the present suit is a suit under Section 92 of the Code which by itself not being maintainable the relief declined by the trial court under Order 39 Rule 1 and 2 of the Code does not call for any interference. This Court is of the view that the present suit is not a stat under Section 92 of the Code; the first appellate court thus rejecting the appeal only for this reason has committed an illegality; impugned order dated 21.8.2010 is accordingly set aside. Matter is now remanded back to the first appellate court to decide the application under Order 39 Rule 1 & 2 of the Code on merits on the finding returned in mind that the present suit is not a suit under Section 92 of the Code.
12 Parties are directed to appear before the first appellate court on 28.5.2012 at 10.00 AM.
13 With these directions, both the petitions are disposed of.
INDERMEET KAUR, J MAY 21, 2012
8. Now, I have again heard the arguments in detail from both sides and perused the complete file including the impugned order.
Written submissions have been filed on behalf of plaintiff/appellant in which once again the contents of plaint filed by the plaintiff/appellant have been reiterated. Apart from this, it is stated that the defendants/respondents with the view to get a cover to their mis-deeds, subsequently form a society with the name of Shiv Mandir Trust and the said society had no concern with the plaintiff/appellant number 1 or it's properties. It is further stated that the defendants/respondents demolished part of the platform, they started falsely representing themselves as managing committee member of plaintiff/appellant number 1 and started claiming fees for the booking of grounds. It is further stated that the defendant/respondent number 1 claimed that Sh. Dhir Singh, who was appointed as Trustee removed by Sh. Raghubir Singh. He further claimed that in the elections held, on 01.11.1994, he was appointed as Trustee to work in place of Sh. Brij Bhushan on the basis of a General Power of Attorney. It is further stated that the defendant/respondent number 1 concealed that Sh. Dhir Singh who was alleged removed from his post as MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 14 of 22 Trustee Pradhan by Sh. Raghubir Singh had challenged his removal by filing a suit which was dismissed by the Learned Trial Court. However, in appeal number 5/1992, a compromise took place and Sh. Dhir Singh was admitted as Trustee. Other Trustee Sh. Ram Charan had never appointed his son Sh. Brij Bhushan and the compromise made between Sh. Raghubir Singh and Sh. Dhir Singh had not been challenged and was accepted. It is further stated that the plaintiff/appellant society and the defendant/respondent number 14 society are separate and distinct. It is an admitted fact that the property was donated by Sh. Munshi To Sh. Raghubir Singh who had constituted the plaintiff/appellant society in1978 when none of the defendants/respondents were in existence. It is further stated that the removal of Sh. Dhir Singh was set-aside by a lawful compromise which was accepted by the Court of law. It is further stated that on the basis of illegal amount collected and the receipts created by the defendants/respondents, the Learned Trial Court wrongly assumed that the defendants/respondents are in possession of the properties of the plaintiff/appellant number 1 and thus the other facts are matter of trial.
Defendants/respondents have also filed their written submissions in the tabular way, datewise, stating that, the plaintiff/appellant has filed the present suit against the defendants/respondents, on 22.12.2009, requesting various reliefs including the relief of permanent injunction, thereby, restraining the defendants/respondents from representing the Shiv Mandir Trust Mauni Baba Temple, Brahmpuri. Plaintiff/appellant has also filed an application under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure seeking the relief of ad-interim injunction. It is further stated that the plaintiff/appellant in it's plaint had admitted that in the August 2004, defendants/respondents had raised the structure of the temple. Though, it is averred by the plaintiff/appellant that they are in the control of the affairs of the temple, but, at the same time, they are unable to MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 15 of 22 file any relevant document in that regard. Instead, it is admitted by the plaintiff/appellant that defendants/respondents had kept on booking the ground at higher rates. It is also stated that in the written statement filed by the defendants/respondents, they had categorically denied the each and every allegations averred by the plaintiff/appellant. It is stated that the defendants/respondents had filed all the relevant documents to establish that they are collecting the membership fees and fees for letting the ground for function and with that amount, they are managing the affairs of the temple. It is further stated that the Learned Trial Court has very well rejected the application of the plaintiff/appellant with the well reasoned order. It is also stated that the Appellate Court should not interfere with the exercise of discretion of the Court of the first instance and substitute it's own discretion except where the discretion has been shown to have exercise arbitrarily. Reliance is placed upon Wander Limited & Anr. v Antox India P. Limited, 1991 (11) PTC 1. Same has been perused carefully.
9. Analysis and Findings:- Firstly, it can be said that Order XXXIX Rule 1 and 2 of the Code of Civil Procedure provides that when defendant threatens the plaintiff to dispossess or otherwise cause injury to the plaintiff in relation to any property in dispute, the Court may grant temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any property in dispute. Thus, injunction is basically a preventive relief and is generally granted taking note of equity. Measures should be taken by the Court to ensure the even handed justice be administered/rendered to both the parties. In any case, while, granting or refusing the injunction the Court should properly consider the pleadings and the documents as well as to MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 16 of 22 take pragmatic view and must attack on the inherent interest of continuing the frivolous litigations by unscrupulous litigants. Further, it is to be noted that in issuing temporary injunction the tests to be applied are (i) whether the plaintiff has a prima facie case, (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer an irreparable injury if his/her prayer for temporary injunction is disallowed. This Court is thus required to see prima facie case, balance of convenience as well as irreparable loss. Also, passing of interim order in favour of plaintiff/party is only for the limited purpose of securing interest of the plaintiff/party. Due care and caution has to be bestowed by the Court while granting or refusing an injunction as it may affect the final disposal of the suit. Measure should be taken by the Court to ensure even-handed justice to both the parties. Thus, the granting of an ad-interim injunction is purely with the discretion of the Court, but the discretion has to be exercised in accordance with the sound judicial principles.
The principles which govern the exercise of discretion are that the party claiming the interim injunction should establish that it has a prima facie case, that if an injunction is not granted that party is likely to suffer a great mischief and that interference of the Court is necessary to protect the party from irreparable injury. It is a settled principle of law that injunction or interim orders are issued not on grace or on default of any person. Interim orders are granted on the basis of the case made out prima facie in the pleadings and that in the interest of justice such interim order is necessary in order to prevent abuse of process of law or to prevent wastage or to maintain the situation as on date or from recurrence of certain incident which were existing as on the date of presenting such application out of which the proceeding is arising. The Court is called upon to see whether the party who has approached the Court has a plausible case and whether there is a possibility of such case succeeding at the trial. Plaintiff MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 17 of 22 should also establish that the balance of convenience in the event of withholding the temporary injunction, will in all events, exceed that of the defendant in case he is restrained. If these tests are satisfied then it is the duty of the Court to see whether the damages that the plaintiff is likely to suffer for the action of the defendants complained of can be compensated in money and if so whether there is a standard for ascertaining such compensation. If such compensation can be ascertained, then the interlocutory order of injunction should normally be refused. However, if the Court is of the view that such compensation cannot be ascertained then it is the duty of the Court to see the balance of convenience and inconvenience of the parties.
Thus, plaintiff must also show a clear necessity for affording the protection to his alleged right which would otherwise be seriously injured/impaired. Again, a prima facie case implies the probability of the plaintiff obtaining a relief on the materials placed before the Court. It is a well settled principle of law that in order to make out a prima facie case, necessary for granting an interlocutory injunction, the plaintiff need not establish his title. Reliance is placed upon Adani Exports Ltd. v Hindustan Organic Chemicals Ltd, (2000) 3 GLR 2759. Further, with regard to prima facie case is concerned, in Best Sellers Retail Pvt. Ltd. vs. Aditya Birla Nuvo Ltd. (2012) 6 SCC 792, the Hon'ble Supreme Court held that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by plaintiff was not irreparable. Again, in Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719, the Apex Court held that while granting or refusing to grant interim injunction, the Court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other sides if the injunction is granted. Thus, it is not the case MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 18 of 22 that one of the conditions for grant of temporary injunction i.e. prima facie case will suffice, but the other two ingredients namely, balance of convenience and irreparable loss also need to be satisfied. With the first condition as sine qua non, the party must satisfy at least two conditions conjunctively.
10. The injunction is called temporary, for it endures only until the suit is disposed of or until the further orders of the Court. It is in the nature of preventive relief granted to a litigant quia timet, that is because plaintiff fears future possible injury. In the interlocutory proceedings, the Court can express only it's tentative view. Passing of interim order in favour of plaintiff is only for the limited purpose of securing the interest of the plaintiff and it will not be implied as being any finding on the merits of the matter nor shall it be construed that the order is passed because the Court has taken any view with regard to the merits. The present order thus has to be made in the light of these observations. Reliance is placed upon Hari Das Singh v. Commr, Agra Division, AIR 2000 All 279 and Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719. In view of the foregoing discussion it needs to be stressed that it is the plaintiff/appellant who is requesting the granting of relief in the application filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure has to prima facie establish that it is entitled for such relief without going into the merits of the case in detail. At this stage, plaintiff/appellant basically has to establish that the triable strong prima facie case lies in it's favour alongwith the balance of convenience to prevent ir-remediable injury. With respect to documents annexed, pleadings made and relief sought here it needs to be mentioned that in it's application under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure plaintiff has requested that the defendants/respondents and/or through their associate, servants, MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 19 of 22 assignees be restrained from representing Shri Shiv Mandir Trust Mauni Baba Temple, Brahmpuri, Ghonda (registered) from collecting any fees/charges from any person or any ground whatsoever including booking of the vacant land and also from interfering in the affairs of the plaintiff/appellant society or it's management of the affairs of the temple and associated properties through the present managing committee.
It is clear after going through the pleadings that is plaint, application filed by the plaintiff/appellant, reply filed on behalf of the defendants/respondents as well as their written statement that both the parties claiming themselves to be the legal entities who are managing the affairs of the temple. It is not understandable that one hand plaintiff/appellant in it's plaint has itself stated that commonly the temple is known as Mauni Baba Temple, but, at the same time, dismissing the claim of the defendants/respondents, who are also claiming their rights under the aforesaid name. There are number of claims as well as equal number of counter claims. Between, all these claims/counter claims unbounden duty of plaintiff/appellant is to establish the presence of prima facie case which is utmost. But, the facts alleged by the plaintiff/appellant are not comprehensible enough to entitle it to have the prima facie case in it's favour what to speak of the other ingredients that is balance of convenience and ir-remediable injury. After perusing the entire set of documents relied upon by the the plaintiff/appellant and in light of the detailed discussion with respect to the aspect of relief to be granted under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, no reason/locus standi as such can be culled out on the part of appellant/plaintiff which is required for establishing prima facie case in it's favour. Therefore, in light of these facts and also in view of detailed foregoing discussion, the Court has no hesitation to hold that appellant/plaintiff is unable to show any prima facie case exist in it's favour. Regarding the balance of convenience MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 20 of 22 and irreparable loss, both these factors seems to be leaning rather in the favour of the respondent/defendant instead of appellant/plaintiff. Reliance is also placed upon Balbir Singh Wasu v. Prabandhak Committee Gurudwara Sahab Patsahi, AIR 2001 P&H 49. Accordingly, the appeal filed by the plaintiff/appellant qua it's application filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure is hereby dismissed. The order with respect to application filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure passed by the Learned Trial Court suffers from no infirmity or illegality for which the same should be set aside.
Though, with respect to other ground of the appeal mentioned in paragraph 'Q' of the appeal that before the framing of issues, parties were not heard, it is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. But, at the same time, it must be kept in mind that "Justice must not only be done, but also seen to be done." This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex. v. Sussex Justices, (1924) 1KB 256. This maxim has been quoted/followed on various occasions by the Hon'ble Superior Courts as well like in Narmadabai vs. State of Gujarat, AIR 2011 SCC 1804 and Kihoto Hollohan vs. Zachillhu & Ors. 1992 SCC SUPL. (2) 651. Therefore, the two equally important aspect that is speedy judgment and imparting of justice in substantive manner need to be balanced. Accordingly, let one opportunity be granted to both the parties to make any submissions/remaining submissions with respect to the framing of the issues/additional issues.
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11. Present case is accordingly remanded back to the Learned Trial Court to re-hear the parties to make any submissions/remaining submissions with respect to the framing of the issues/additional issues. Learned Trial Court may hear the arguments on this aspect only that is qua the framing of issues/additional issues without any boundation regarding the arrival of the decision which must be purely as per law. At the same, time, it needs to be clarified that the order of Learned Trial Court, dated 24.05.2010 with respect to the application of plaintiff/appellant filed under Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure is upheld and the appeal of the plaintiff/appellant to that extent is dismissed.
12. TCR be sent back with the copy of this judgment.
13. Appeal file be consigned to Record Room after necessary compliance.
Digitally signed byMANU MANU VEDWAN VEDWAN Date: 2024.10.01 16:48:36 +0530 (Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 01st October, 2024 MCA No. 01/2017 Shri Shiv Mandir Trust Vs. Gopi Chand Rathi & Ors. Page No. 22 of 22