Calcutta High Court (Appellete Side)
Pankoj Krishna Debnath vs Shri Shri Shiv Thakur & Shri Shri Mahavir ... on 23 July, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Jyotirmay Bhattacharya C.O. No. 1512 of 2009 PANKOJ KRISHNA DEBNATH VERSUS SHRI SHRI SHIV THAKUR & SHRI SHRI MAHAVIR JEW & ORS.
With C.O. No. 572 of 2009 CHANCHAL SUR & ORS.
VERSUS SHRI SHRI SHIV THAKUR & SHRI SHRI MAHAVIR JEW & ORS.
For the Petitioner : Mr. Sadananda Ganguly
Mr. Tapabrata Chakraborty
Mr. Monojit Bhattacharya
For the O. P. No. 1 : Mr. S.P Raychowdhury
Mr. Probal Kumer Mukherjee
Mr. Sukanta Chakraborty
Judgment On : 23rd July, 2010.
Since a common question of law is involved in both these revisional applications, both the aforesaid revisional applications were heard analogously. As a matter of fact, in a suit for declaration and injunction filed by the opposite party No.1 herein against the opposite Party Nos. 2 2 to 4, two sets of applications for addition of parties were filed by two sets of applicants. Both the aforesaid applications for addition of parties, were rejected by the learned Trial Judge by a common order being No. 36 dated 15th September, 2008. Both the applicants challenged the propriety of the said order by filing their respective applications under Article 227 of the Constitution of India.
Heard Mr. Ganguly, learned Advocate, appearing for the appellants/petitioners and Mr. Ray Chowdhury, learned Senior Counsel, appearing for the opposite party. Considered the materials on record including the order impugned.
Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the fact of the instant case. The instant suit was filed by the deities represented by its next friend and priest namely, Hardwar Tewari against the opposite party Nos. 2, 3 and 4 herein inter alia praying to a declaration that the deed of gift dated 23rd April, 2004 executed by Sankar Krishan Kutti the defendant No.1 herein and the subsequent deed of declaration dated 21st December, 2004 are illegal, void and not enforceable in law and same are not binding upon the plaintiff. A decree for permanent injunction was also prayed for restraining the defendants from acting upon the said deed of gift dated 23rd April, 2004 and from taking any step and/or steps pursuant to the deed of gift in any manner whatsoever. Various other incidental reliefs were also claimed in the said suit.
In such a suit one application for addition of party under order 1 rule 10 of the Civil Procedure Code was filed by the petitioner of civil revisional application No. 1512 of 2009. Another application for addition of party was filed by the other petitioners of C.O. No. 572 of 2009, in the said suit. Though both the applicants filed their applications under order 1 rule 10 of the Civil Procedure Code but in fact, they prayed for removal of Sri Hardwar Tewari who represented 3 the deities as a next friend and priest in the said suit and for substitution of the applicants in his place so that the applicants can represent the deities as its next friend. Both the applicants claimed that they are Hindu dedicated worshiper and devotees of the solemn deities. The foundation of both of aforesaid applications rests on a common footing. Both the applicants contended that Hardwar Tewari was never appointed as a priest of the said deities. As such he cannot be permitted to proceed with the suit by describing himself as the priest and next friend of the deities. By referring to paragraph 17 of the plaint it was further contended by them that since the said Hardwar Tewari set up his title in the suit property by recording his name as owner thereof in the record of rights, the property of the deities is not in the safe hand of the said Hardwar Tewari. It was thus contended that since the said Hardwar Tewari sets up a title in himself against the deity by adverse possession, he cannot be permitted to continue with the suit by describing himself as priest and next friend of the deities. Accordingly, they prayed for removal of the said Hardwar Tewari and for their substitution in his place so that they can continue with the suit as next friend of the deities.
Relying upon a decision of the Hon'ble Supreme Court in the case of Bishwanath and anr. vs. Sri Thakur Radha Ballabhji and ors. and ors., reported in AIR 1967 SCC 1044, Mr. Ganguly submitted that when a priest representing the deity is found to have been acting adversely to the interest of the idol, even a worshiper can file a suit representing the deities for the reason being that the idol is in the position of a minor and when the person representing it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect the interest of the idol. By referring to another decision of this Hon'ble Court in the case of Amrrendra Nath Dhar & anr. vs. Happy Homes & Hotels Pvt. Ltd. reported in (2009) 1 CLJ (Cal) 383, Mr. Ganguly contended that even his client can be added as a co-plaintiff in the suit for representing the deities jointly with the self styled priest who has filed the suit by representing the 4 deities as its next friend. Mr. Ganguly thus submitted that for proper protection of the interest of the deities his client should be added as co-plaintiff in the suit even if the substitution of his client in the place of the priest by removing him from the position of the next friend of the deities, is not possible.
Mr. Ray Chowdhury, learned Senior Counsel, appearing for the plaintiff/opposite party No.1 submits that though the application for addition of party was filed by the applicants under order 1 rule 10 of the Civil Procedure Code but in fact, the said application was filed under the provision of order 32 rule 9 read with order 32 rule 4 of the Code of Civil Procedure. By reading the entire averments made in the plaint, Mr. Ray Chowdhury pointed out that, in fact, the said suit was filed by the deities to protect the deities' property by way of declaration that the right, title and interest of deities in the said property remains unaffected by the disputed deed of gift and the declaration made by the defendant No.1. Mr. Ray Chowdhury further pointed out that said Hardwar Tewari who is the priest of the deities represents the deities as its next friend in the said suit. Mr. Ray Chowdhury further pointed out from the plaint that, in fact, the property of the deities is being looked after and/or protected since 1902 by family members of Hardwar Tiwari generation after generation starting from his forefather and neither the plaintiff nor his predecessor in interest ever set up any title in them adversely against the title of the deities. Mr. Ray Chowdhury contended that the applicants misinterpreted the averment made by the plaintiff in paragraph No.17 of the plaint which runs as follows:5
"That the plaintiff states that his forefather and thereafter the plaintiff as next friend and priest of the deities looked after the temples as well as adjoining land surrounding the temples for several decades and as such has acquired a right of adverse possession. Such right of adverse possession has been adjudicated by diverse courts in favour of the plaintiff."
By referring to the said averment in the plaint Mr. Ray Chowdhury contended that acquisition of title by the deities by adverse possession was made out therein. The next friend never claimed any title by way of adverse possession against the deities, in the said plaint. By referring to paragraph 16 of the said plaint Mr. Ray Chowdhury also pointed out that the name of his predecessor was recorded as guardian of the idol in the mutation certificate: Such recording shows that the idol is the owner of the said property and the idol was represented by the plaintiff's predecessor who acted as the guardian of the idol.
Mr. Ray Chowdhury further contended that since the applicants have failed to produce any material before the Court to show that the interest of the next friend of a minor is adverse to that of the minor or the next friend is so connected with the defendant that his interest is adverse to that of the minor as to make it unlikely that the minor's interest will not be properly protected by him or that the next friend does not do his duties, the next friend can neither be removed under order 32 rule 9 of the Civil Procedure Code nor the applicants can be appointed in the place of Hardwar Tewari.
Mr. Ray Chowdhury, further submitted that the said priest not only filed the instant suit but also filed several other suits for protecting the interest of the deity. As such he cannot be restrained from acting as next friend of the deities. Mr. Ray Chowdhury further submitted that, in fact, the 6 applicants are set up by the defendant so that the defendant can get a walkover in the said suit by projecting the mock fight between the defendant and his friends who belong to the camp of the defendant.
After hearing the respective submissions of the counsel, this court is of the view that though the petitioner filed their applications for addition of party under order 1 rule 10 of the Code of Civil Procedure but, in fact, the relief which was claimed in the said application shows that it was essentially an application under order 32 rule 9 read with order 32 rule 4 of the Code of Civil Procedure. Though it is correctly pointed out by Mr. Ganguly that even a worshiper can maintain a suit to protect the deities' property as its next friend but when a question of removal of a person who has filed the suit as the next friend of the deities is raised, the court is required to consider as to whether anyone of the conditions as contemplated under order 32 rule 9 of the Code of Civil Procedure is satisfied in the instant case or not? Looking at the plaint averment, this Court finds that the said suit was filed by the deities who are represented by its next friend for protecting the deities' title in the suit property. Several other suits were filed earlier by the said priest by representing the deities as their next friend to protect the deities' property. In fact, the deities' properties are being protected and/or looked after by the said priest's family member generation after generation right from 1902. No material could be produced by the applicants to show that any of the conditions for removal of the next friend as contemplated under order 32 rule 9 of the Civil Procedure Code is attracted in the instant case. In fact, the applicants misinterpreted the pleadings of the plaintiff in the plaint. The next friend never claimed any adverse interest against the deities in the plaint. The next friend allthroughout maintained his stand that the plaintiff viz. the Deities are the owners of the suit property and their ownership was recognised by different courts in 7 various earlier litigations which were filed by the said priest and/or his predecessor in interest representing the Deities as their next friend.
Even the learned Trial Judge found that the said priest is prosecuting the said suit diligently. Thus when the next friend is prosecuting the said suit on behalf of the deities to protect their interest diligently, this court does not find any necessity for his removal.
Mr. Ganguly further submits that even without removing him the court can add his client as co-plaintiff by moulding the reliefs of his clients. No doubt it is true the court has its power to give appropriate relief to a party by moulding the reliefs in suitable circumstances but this is not a case where such relief is required to be granted to the applicant as this court finds that the applicants have failed to prove that the deities' property is not protected by the Hardwar Tewari who is the priest of the deities.
That apart, when the allegation and counter allegations are made by and between the Hardwar Tewari and the applicants and there is lack of unity between them, this court feels that the fair trial of the suit will be frustrated and/or obstructed, if the applicants are added as co-plaintiffs in the suit against the wishes of the present next friend.
Under such circumstances this court does not find any justification to interfere with the impugned order.
Both the revisional applications thus stand rejected.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
8(Jyotirmay Bhattacharya, J.)