Rajasthan High Court - Jaipur
Kailash Chand Lata & Ors vs Kunal Dalmia & Ors on 31 March, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
[1] S.B. Civil Revision Petition No.148/2008
Kunal Dalmia & Ors. Vs Kailash Chand Lata & Ors.
[2] S.B. Civil Misc. Appeal No.625/2008
Kailash Chand Lata & Ors. Vs Kunal Dalamia & Ors.
DATE OF JUDGMENT : 31/03/2011
HON'BLE MR.JUSTICE S.S.KOTHARI
Mr. M.M. Ranjan, Sr.Adv. with Mr.O.P. Mishra, for petitioner-respondents
Mr. Sunil Kumar Singodiya, for respondent-appellants
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As both the above matters arise out of same suit they are being decided by this common order. For the sake of convenience and for avoiding confusion, the parties are being described by their status in the suit.
The plaintiff (3 in number) filed suit on the ground that they are residents of Chidawa where a Dharamshala known as Bagar-wali was situated. The suit was filed by the plaintiffs in representative capacity under Section 92 CPC. It was alleged that the defendants are members of the Dalmia family which is well-known throughout the country and has its industrial units and commercial establishments in all big cities. Their ancestors were religious minded and used to set apart a portion of their income for spending in religious and philanthropic purposes. They constructed temples, dharamshalas and educational institutions and dedicated them for public use. In this context, the aforesaid Dharamshala was constructed about 80/90 years ago in Chidawa and dedicated for common use as a charitable institution. The travelling public, sadhus used to stay there and marriage parties were also allowed to make use of the place. The Dharamshala was being managed by the defendants and their ancestors who used to manage and renovate the same. But for the last few years, the defendants, due to dishonest intention, are trying to sell, mortgage and otherwise encumber the same. They are not performing their pious duties and have started mismanaging it. When the defendants wanted to dismantle the Dharamshala, public representatives protested but the defendants assured them that they are demolishing it for construction of a modernized, updated Dharamshala in its place. In view of this assurance, the defendants were allowed to proceed ahead with the demolition. They removed building material, gates, windows, girders, furniture, utensils, and wood of trees worth Rs.30 lakhs from the spot. They are trying to frustrate the purpose for which the Trust was created and misappropriate its properties by committing breach of trust. The plaintiffs prayed that the defendants may be restrained from indulging in the aforesaid activities. They may be removed from the post of trustees and new trustees may be appointed in their place for managing the affairs of the Trust. The defendants submitted a written statement denying the averments of the plaintiffs and contended that there is no dharamshala and the haveli of the defendants is known as Bagerwali Haveli. The Haveli is their private property and it was never dedicated to the public and no trust was created for managing the same. The suit has been filed without obtaining permission from the Advocate-General and is barred by provisions of Sections 44 & 73 of the Rajasthan Public Trusts Act, 1959 (hereinafter called the Act). It was prayed that the suit may be dismissed.
During the pendency of the suit, an application under Order 7 Rule 11 CPC was filed by the defendants, that the suit is barred and not maintainable. The said application was rejected by Order dated 22.10.208 against which the aforesaid revision has been filed. The plaintiffs submitted an application under Order 39 Rule 1 CPC for obtaining temporary injunction against the defendants which has been rejected vide Order dated 11.10.2007. The aforesaid Civil Miscellaneous Appeal has been filed against this Order.
The learned Counsel for the defendants has submitted that as per provisions of Section 44 of the Act, Section 92 CPC is not applicable. He has also submitted that the matters relating to public trusts are to be considered and examined in accordance with various provisions of Section 73 of the Act and Commissioner, Devasthan is a necessary party. He has submitted that the learned court below has committed illegality in rejecting his application and continuing the suit. The learned counsel for the plaintiffs has submitted that Section 73 of the Act is not applicable and the suit is triable by the learned court below. He has contended that the learned court below has illegally rejected his application for temporary injunction as a result of which the purpose of filing the suit will be frustrated by the time it is decided.
I have given thoughtful consideration to the aforesaid submissions of the parties.
Section 44(1) of the Act provides that the provisions of Sections 92 & 93 of CPC shall not apply to Public Trusts. The plaintiffs have filed the suit alleging that the Dharamshala was dedicated to the public and a public trust was formed to manage its activities. However, the defendants have denied the existence of any public trust and averted that Bagarwali haveli is their private property. Thus, there is a serious dispute between the parties about the very existence of a public trust. On the pleadings of the parties, issues have been framed in the suit and they can be decided only after recording the evidence of the parties. In the circumstances, the conclusion of the court below that issue no.4 can be decided after recording the evidence of the parties seems to be correct as from bare perusal of Order 7 Rule 11 (d) CPC it is clear that the suit must appear from the statement in the plaint to be barred by any law. In other words, it must appear on the face of it that the suit is barred but where Court has any doubt, or a bonafide dispute is raised, surely the above provision cannot be applied. The Court could not, in the absence of material, decide the question regarding bar to suit requiring consideration of facts, circumstances of case and nature of dispute. Hence, the decision of the court below on the application of the defendants under Order 7 Rule 11 CPC does not require any interference.
The Court below has rejected the application of the plaintiffs for grant of temporary injunction on the grounds that in the absence of full particulars and details of the dispute and material in support of it, prima facie case of the plaintiffs is not proved. It is further observed that as the said Dharamshala is admittedly not in existence, there is no question of balance of convenience and irreparable injury in favour of the plaintiffs. From the details of the pleadings of the parties, mentioned in the impugned order, it appears that the plaintiffs have not come out with a clear case and non-existence of the said Dharamshala disentitles them from seeking any equitable preventive relief in the suit. They may seek such reliefs in the suit which can be available to them in the present circumstances of the case. It deserves to be mentioned that the structure of the alleged Dharamshala was dismantled much before the filing of the suit. In the facts and circumstances of the case, the impugned order dated 11.10.2007 also does not require any interference by this Court at this stage.
From the aforesaid discussions, both the above Civil Revision and Civil Miscellaneous Appeal being devoid of merit deserve to be dismissed and accordingly, they are dismissed with no orders as to costs. As the Civil Miscellaneous Appeal is being dismissed, the interim order dated 25.02.2008 granted by this Court stands vacated.
[S.S.KOTHARI], J.
FRBOHRA148CR2008.doc