Delhi District Court
Surinder Kumar Gupta vs Sarv Darshan Sewa Ashram on 9 July, 2012
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE III, ROHINI COURTS: DELHI
Suit No. 120/10
Surinder Kumar Gupta ...Plaintiff
Vs.
Sarv Darshan Sewa Ashram ...Defendant
ORDER
1. By this common order I shall dispose off an application U/o 14 R 5 CPC dt. 8.3.2011 moved on behalf of plaintiff and U/o 14 R 5 CPC dt. 21.2.2011 moved on behalf of defendant no. 1,3 ,4 & 5. In the application U/o 14 R 5 CPC moved on behalf of defendants it is stated that present proceedings have been filed by the plaintiff U/s 92 of CPC as suit for declaration, permanent injunction, rendition of account and recovery of Rs. 3,99,295/ alongwith an application for obtaining permission from the court to institute the present suit. Even otherwise if a party files the suit U/s 92 of CPC it has to obtain leave of the court before the suit is taken up for Suit No. 120/10 Page 1 of 5 consideration therefore, this court has to first decide the application for obtaining the leave to institute the suit. In the facts and circumstances the following issues arises at this stage : "Whether the plaintiff can be granted leave of the court U/s 92 of CPC?"
2. It is further submitted that the court has to decide the said issue before granting any leave to plaintiff to institute the suit U/s 92 of CPC and therefore has been prayed to frame the issues on the application filed by the plaintiff to obtain leave to institute the present suit. In the application moved on behalf of plaintiff it is stated that suit of the plaintiff is for declaration, permanent injunction, rendition of account and recovery of damages of Rs. 3,99,295/ and issues were framed on vide order dt. 21.1.2011 . The most desired issue which has not been framed by the court as follows"
" Whether the plaintiff is entitled to a decree for a sum of Rs. 3,99,295 with pendente lite as well as future interest @ 12% pa?"
It has therefore been prayed to amend the issues and also Suit No. 120/10 Page 2 of 5 frame the issue as proposed in the application. No reply to the application moved on behalf of plaintiff has been filed by the defendant. The plaintiff has filed the reply to the application U/s 14 R 5 CPC filed on behalf of defendant wherein it is denied that suit has been filed U/s 92 of the CPC in the representative capacity and asserted that suit has been filed by the plaintiff in his personal capacity for vindicating his own interest and not in the representative capacity of trust. It is also stated that suit filed by the plaintiff is outside the purview of Section 92 of the CPC thus seeking leave of this court to file the suit is not required.
3. I have heard the arguments addressed by ld. Counsels for the parties and perused the record. At the outset it is revealed that suit has not been filed U/s 92 of CPC nor any application U/s 92 CPC has been moved on behalf of plaintiff for seeking leave to institute the suit. Thus the plea taken by defendant that application U/s 92 of CPC moved by the plaintiff has to be decided first is without any basis. Further, since the issue proposed by the defendants also pre supposes the filing of the application U/s 92 Suit No. 120/10 Page 3 of 5 of CPC by the plaintiff, and no such application has been filed on behalf of plaintiff, the question of framing the issue as proposed by the defendants does not arise. Even otherwise the plaintiff in his reply has also categorically stated that present suit has been filed by him in his personal capacity and another application U/s 92 of CPC has been filed by him for seeking leave to file the suit for declaration, mandatory and permanent injunction and rendition of accounts in the representative capacity alongwith two other trustee of the trust in other case which is pending adjudication in the court of Sh. M. K. Gupta, ld. ADJ, Rohini Courts. In view of the above discussion the application moved on behalf of the defendants is without any basis. Hence the same is dismissed.
4. So far as the application of plaintiff is concerned, since the suit of the plaintiff besides declaration, rendition of account, mandatory and permanent injunction is also for recovery of Rs. 3,99,295/ and prayer has also been made in para (G) of the prayer clause for recovery of the said amount alongwith interest pendente lite and future @ 12% pa, the issue as proposed by the Suit No. 120/10 Page 4 of 5 plaintiff in the application is the relevant issue. Accordingly the application moved by the plaintiff is allowed and additional issue is framed as under: "Whether the plaintiff is entitled for a decree for a sum of Rs. 3,99,295/ alongwith pendente lite and future interest @ 12% pa ?OPP Announced in open court (SUKHVINDER KAUR) dated 9.7.2012 ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI Suit No. 120/10 Page 5 of 5 Suit No. 120/10 09.07.2012 Present: None.
Vide separate common order application moved by the defendant U/o 14 R 5 CPC is dismissed and application of plaintiff U/o 14 R 5 CPC is allowed and the following additional issue is framed "Whether the plaintiff is entitled for a decree for a sum of Rs. 3,99,295/ alongwith pendente lite and future interest @ 12% pa ?OPP Put up for PE on 17.9.2012.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI.
Suit No. 120/10 Page 6 of 5