Delhi District Court
Shiv Mandir Trust vs Sh. Gopi Chand Rathi on 21 August, 2010
MCA07/10
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER (NORTH EAST DISTRICT) : KARKARDOOMA COURTS:
DELHI.
MCA07 OF 2010
SHIV MANDIR TRUST
Brahampuri, Ghonda (Regd.)
Through its Manager, Sh.Kishore Saini
S/o Sh. Raja Ram Saini,
R/o O20, Street No.15II,
Brahampuri, Delhi53 ............ APPELLANT
VERSUS
1. SH. GOPI CHAND RATHI
2. SH. ANIL RATHI
S/o Gopi Chand Rathi
Both R/o H.No.F30A,
Gali No.10, Brahampuri, Delhi.
3. SH. NEM CHAND GOEL
R/o H.No.F41A, Gali No.10,
Gali No.10, Brahampuri, Delhi.
4. SH. KHOOB SINGH
5. SH. TRILOK CHAND SHARMA
6. SH. RAMJI LAL SHASTRI
7. SH. SUBHASH CHAND SETHI
8. SH. RAJENDER PRASAD ATRISH
9. SH. PREM SHANAR SHARMA
10.SH. SHIV RAJ SINGH RATHI
11.SH. MITTHAN LAL SINGHAL
12.SH. SAMAY SINGH
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MCA07/10
13.SH. CHANDAN KUMAR
All C/o Sh. Gopi Chand Rathi
R/o F30A, Gali No.10,
Brahampuri, Delhi.
14.SHRI SHIV MANDIR (MAUNI BABA MANDIR)
Nirman Evam Vikas Sewa Samiti
Through its President Sh. Nem Chand Goel ............ RESPONDENTS
Date of institution : 01.07.2010
Order reserved on : 12.08.2010
Date of Order : 21.08.2010
O R D E R :
1. Vide this order, I shall dispose of the present appeal filed by the appellant challenging the order dated 24.05.10 passed by Ld. Trial Court whereby the application of the appellant for grant of interim injunction U/o 39 Rule 1 & 2 CPC was dismissed.
PLEADINGS OF PARTIES IN TRIAL COURT :
2. The facts necessary for disposal of this appeal are that the appellant filed a suit for perpetual injunction and declaration with mandatory injunction and rendition of accounts against the respondents stating that appellant is a registered society for managing the affairs of Shiv Mandir at Brahampuri besides a Charitable object to open and run school, colleges, library and reading room etc. The society is being managed by a managing committee. The elections of the managing committee were held on 1.4.07 in which Sh.Kishore Saini was elected as Manager and he has been duly authorised to file the present suit. It was further : 2 of 20 :
MCA07/10 stated that appellant is maintaining a temple of Lord Shiva commonly known as Temple "Mauni Baba". The managing committee allows the people to use the land adjacent to the temple for social and religious functions on payment of charges and also collects donations from the public for its functions. Respondent no.1 is a retired police officer and had never been elected to the managing committee of the appellant society and was ordinary member of the appellant society till January 2007 when his membership was cancelled. However, respondent no.1 in order to gain control over the society and its properties started manipulating the things in the year 2004 with active connivance of some other persons. In August 2004, respondent no.4 and his associates tried to transgress the temple property by forcibly raising some construction work on the western gate which was objected to by the members of the society and a Kalandara U/s 107/150 Cr. P.C. was registered on 22.8.04. During October 2004 to mid 2009, respondent no.1 and his companions continued their attempts to grab the temple and its properties on various pretexts. It has also been stated that the previous executive committee had been elected for a period of 3 years and the present managing committee was elected on 1.4.07 and since then, it is in control of the affairs of the temple and its properties. On 3.9.09, when the executive committee of the appellant society was getting the renovation/reconstruction work done, respondents no.1 to 13 alongwith their associates tried to disrupt the work and even demolished part of the shop and toilet block and platform for which complaint was lodged on 5.9.09 and 14.9.09. respondent no.1 to 13 thereafter formed themselves into a registered society in the name and style of respondent no.14 and respondent no.1 claimed himself to be the sole trustee of the temple : 3 of 20 :
MCA07/10 after the former trustee Brij Bhushan expired and also proclaimed himself to be a patron of respondent no.14 society. Respondents tried to malign the image of members of the executive committee by false propaganda in the public and started collecting money from the public and issuing pamphlets. The respondents also started booking the ground/vacant land of the temple against receipt of money. It has further been stated that the temple and its properties always remained under the management of appellant society and respondent no.14 had neither been in existence nor incharge of the affairs and management of the temple and its properties prior to August/September 2009. On account of unwarranted interference and attempts made by the respondents, appellant society made several complaints to various authorities. From time to time, the appellants society also made earnest request to the respondents for restraining themselves from collecting any amount from the public at large and also from representing themselves to be the persons concerned with the temple and its properties but respondents did not pay any heed and kept on inducing the innocent people of the locality despite the fact that they had no right, title or interest in the said temple and its properties. The appellant society also sought directions to the respondents to render the accounts.
3. The respondents contested the suit by filing their WS making preliminary submissions that on 6.1.1962, Late Sh. Munshi S/o Kallu R/o Village Ghonda donated the land to the existing temple of Lord Shiva. In 1978, Late Sh. Raghubir Singh constituted the society "Shri Shiv Mandir Trust", Brahampuri, Ghonda and its rules and byelaws were framed which made it compulsory to have two trustees. In 1990, Sh. Ram Charan Abhay appointed Sh. Brij Bhushan Sharma as : 4 of 20 :
MCA07/10 trustee in his place. On 30.9.1994, Sh. Dheer Singh was removed from the position of trustee and a letter was communicated to registrar societies. Thereafter, fresh elections of Managing Committee took place and outcome was communicated to the registrar society vide letter dated 1.11.1994. On 2.11.2004, Brij Bhushan Sharma appointed respondent no.1 to be trustee in his place vide GPA and the same was communicated to the Registrar societies. The respondents also mentioned the various developmental work which were taken by them. The respondents also raised preliminary objections that Sh. Kishore Saini has no locus standi to file the suit. Annex. P5 is a forged document and Sh. Dheer Singh was removed from the position of trustee as far back as 30.9.1994. The suit is also incompetent because no prior permission has been taken U/s 92 CPC and the suit for declaration simplicitor without that of possession is barred. On merits, the contents of the plaint were denied except for the matters which were admitted therein.
4. The appellant filed replication denying the contents of the WS contrary to the plaint and reiterated and reaffirmed the facts stated in the plaint. It was further stated that Sh. Ram Charan Abhay continued to be trustee till his death. It was also stated that after the death of Ram Charan, Sh. Raghbir Singh appointed Ch. Dheer Singh in his place on 1.6.1989. He was falsely removed by Raghubir Singh on 4.9.1991 due to certain differences which led to filing of civil suit bearing no.565/91. The said suit was dismissed and civil appeal was preferred and during the pendency of the appeal, the matter was compromised and Ch. Dheer Singh was admitted to be trustee for life and the appeal was disposed off. After the death of Ram Charan, his son Brij Bhushan was accepted as Pradhan of : 5 of 20 :
MCA07/10 the Managing committee and also impliedly as trustee. It has been stated that the letter dated 30.9.1994 is false and fabricated document and other contents of the WS were denied.
5. The injunction application of the appellant was dismissed by Ld. Trial Court vide its order dated 24.5.10 after hearing the parties and issues were framed. GROUNDS OF APPEAL :
6. Aggrieved by the said order, the appellant has challenged the order, interalia, on the grounds that Ld. Trial Court has made self contradictory observations that there is nothing on record to show prima facie that appellant is managing the affairs of the temple or are entitled to manage the same and has failed to appreciate the real dispute between the parties as to whether the managing committee headed by Dheer Singh is the lawfully constituted managing committee or the managing committee headed by respondent no.1. Ld. Trial Court has failed to appreciate that by observing the fact that appellant has raised triable issues with regard to the relief of declaration, it has established a prima facie case. Ld. Trial Court committed grave error in ignoring para 5 of the plaint that appellant was maintaining the temple through the duly authorised managing committee. Ld. Trial Court also did not consider any of the document and photographs filed by the appellant. Ld. Trial Court has arrived at a perverse finding that the documents categorically show that affairs of the temple are being managed by the respondents and respondents were in possession because they were collecting the amount. Ld. Trial Court ignored and failed to take into consideration that the present managing committee was duly elected on 01.04.2007 and was collecting membership fees etc. from the members. Ld. Trial : 6 of 20 :
MCA07/10 Court failed in its jurisdiction and committed grave error in not appreciating the fact that the real controversy between the parties was as to which of the managing committee was incharge of the affairs of the appellant and the temple. It further failed to appreciate that respondents did not produce any minutes of GBM under which respondents no.1 to 13 were elected as office bearers of the so called managing committee of respondent no.14. Ld. Trial Court failed to ignore the observations of Andhra Pradesh High Court in AIR 2010 (NOC) 150 in which appointment of power of attorney by trustee was held to be not justified. It also failed to appreciate the ratio in the case AIR 1963 SC 309 which held that a trustee cannot delegate his office or any official function except in specified cases and that the law does not permit delegation by a trustee of its function except in cases of necessity or with a consent of beneficiary or the authority of trust deed itself. Further as per Rule KA2, a trustee can appoint another person as a trustee while leaving his post of trusteeship. Ld. Trial Court failed to appreciate that appellant has shown a prima facie case in his favour but also shown that balance of convenience was in its favour. Ld. Trial Court ignored the observation of Karnataka High Court in AIR 2002 Karnataka 1 and those of Delhi High Court in 112 (2004) DLT 711. Ld. Trial Court also committed serious error in observing that no documents were tendered for admission/denial on 24.05.10 and further by framing the issues without hearing the parties nor even it attempted to examine either of the parties U/o 10 CPC.
A prayer has been made for setting aside the impugned order and grant of injunction in favour of the appellant.
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7. I have heard Ld. Counsels for the parties and have perused the record carefully.
Trial Court record was also summoned and I have also gone through the documents filed on behalf of the parties.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT :
8. Counsel for the appellant has argued that the appellant is managing the affairs of the temple and its properties through the management committee. It has been argued that in August 2004, the disputes between the parties began when the respondent no.1 and his associates tried to transgress the suit property and Kalandara U/s 107/150 Cr. P.C. was registered against both the parties. SEM vide its order dated 18.10.2004 directed both the parties not to do anything without prior permission. It has also been argued that as per the rules and bylaws of the trust, the trust was having two trustees namely Raghuvir Singh and Ram Charan Abhay. It has also been pointed out that as per rule KA2, a trustee while resigning from a post can appoint another person as a trustee and only a trustee can be a Pradhan of the manging committee and this fact has been admitted by both the parties. It has also been argued that vide notice dated 30.9.04, (Annex.D1), Raghuvir Singh removed Dheer Singh from the post of trustee and Ramesh Chand was appointed as a new trustee. It has been argued that the said removal was beyond the powers conferred on the trustee. 8.1 It has also been argued that vide GPA dated 12.10.04, Brij Bhushan Sharma appointed respondent no.1 Gopi Chand Rathi as trustee in his place and intimation to this effect was also given to the Sub Registrar vide letter dated
2.11.04 (Annnx. D3). Counsel for the appellant has contended that this act on the part of Brij Bhushan Sharma was illegal in view of the judgment of Hon'ble : 8 of 20 :
MCA07/10 Supreme Court in AIR 1963 SC 309 wherein it was held that trustees cannot transfer their duties, functions and powers to some other body of men. A person who is appointed as trustee is not bound to accept the trust; but having once entered upon the trust, he cannot renounce the duties / liabilities except with the permission of the court or with the consent of the beneficiaries of the trust. Reliance has also been placed on AIR 2010 NOC 150 (AP) wherein it was held that as a rule, delegation by trustee of its functions is not permitted by law - appointment of power of attorney to represent trust did not amount to abdication of powers and duties of trustee and it is for convenience - since the trustee resided and trust property was situated at Vishakhapattnam and trust had not passed any resolution to represent on behalf of trust, appointment of attorney would not be justified. It was argued that by the execution of the GPA by Brij Bhushan Sharma was illegal and it did not transfer the trusteeship. Even from the language of GPA it is clear that respondent no.1 was not appointed as a trustee. It was also argued that the removal of Dheer Singh from the trusteeship also without any powers conferred by the trust deed. The respondents concealed the material fact that there was a litigation between the appellant and Dheer Singh on one hand and Raghuvir Singh on the other hand. In appeal bearing RCA No.5/92, there was a compromise between the parties wherein Raghuvir Singh relinquished his trusteeship on 1.6.1989 and on his recommendation, Dheer Singh was nominated a trustee for the life. Raghuvir Singh also gave a statement to this effect in the court. It has been contended that the notice Annex. D1 was thus without any lawful authority. It has also been argued that the membership list for the year 1994 (Annex.PX6) shows Dheer Singh as one of the trustees alongwith : 9 of 20 :
MCA07/10 Sh. Brij Bhushan Sharma and this fact has been ignored by the Ld. Trial Court. 8.2 It has also been argued that Ld. Trial Court has wrongly come to the conclusion that respondents are managing the affairs of the temple or that they are in possession of the same. It has been argued that the appellant had also filed the receipt books, Annex. P7 that they were collecting the donations on behalf of the trust since November 2007 besides other documents which show that the management committee of the appellant was in possession and control of the affairs of the trust but the same has been ignored by Ld. Trial Court. The police complaints made by the appellant has not been taken into consideration. The respondents on the other hand have not filed any minutes of meeting or documents to show how and when they formed the society respondent no.14. It has also been argued that respondent no.1 cannot be a Pradhan as he is not a trustee whereas the appellant committee was duly elected and the copy of the general body meeting in which the elections were held has been filed by the appellant as Annex. P5 alongwith the plaint. The respondents have not placed on record the constitution or the rules and bylaws of respondent no.14 on record. 8.3 It has also been argued by Counsel for the appellant that the objection raised by the respondents that suit of the appellant is not maintainable in view of Section 92 of CPC is also without any basis. Counsel for the appellant has relied upon the judgments of AIR 1967 SC 1044; AIR 1986 Allahabad 75; AIR 1972 Rajasthan 263 and AIR 1952 SC 143 in support of his arguments. It was argued that to invoke Section 92 of CPC, four conditions are necessary :
1) The trust must be for public purpose of a charitable and religious nature;
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2) The plaint must allege a breach of such trust or seek court's direction for administration of trust;
3) The suit must be not only in the interest of the appellant individually but in the interest of public or the trust itself;
4) The relief sought must be one of the reliefs mentioned in Section 92 CPC.
Counsel for the appellant has argued that Section 92 CPC is not applicable in the present case as no relief enumerated in that section has been claimed by the appellant in the present suit. Counsel for the appellant has also relied upon AIR 2002 Allahabad 198 and AIR 2002 Karnataka Page 1 in support of his arguments that the appellant is entitled for the relief of injunction. SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS :
9. Counsel for the respondents on the other hand has vehemently argued that the appellant is not entitled to any relief whatsoever as the suit itself is not maintainable U/s 38 of the Specific Relief Act. The court has to take into consideration the maintainability of the suit while deciding the application for interim injunction and if the suit itself is not maintainable, the injunction cannot be granted. It has been argued that while deciding the existence of a prima facie case, a court must consider the maintainability of the suit or action for the purpose of its primafacie satisfaction. Reliance has been placed by the Counsel for the respondents on (1993) 3 SCC 161 and 1993 (2) Latest Judicial Reports 713 on this aspect. It has also been argued that the appellant has admitted in the affidavit that it is not in possession of the suit property and respondents are in possession of the suit property. It has been argued that the suit for injunction : 11 of 20 :
MCA07/10 without seeking the relief of possession is not maintainable, the appellant has failed to show that it is in possession of the suit property. Reliance has been placed by the Counsel for the respondents IX (2006) SLT 502 and 2008 (1) RCR (Civil) 915 (SC) wherein it was held that in a suit for permanent injunction based on protection of possessory title in which the appellant alleges that he is in possession, the appellant has to establish that he is in possession in order to be entitled to a decree of permanent injunction. It was also held that the general proposition is well settled that a appellant not in possession is not entitled to the relief without claiming recovery of possession. Before injunction can be granted, it has to be shown that the appellant is in possession. It has been argued that the appellant is seeking the relief of possession in the garb of declaration and injunction and no relief of possession has been claimed and hence, the suit is liable to be dismissed.
9.1 It has further been argued that the suit of the appellant is not maintainable in view of Section 92 CPC and no leave of the court has been obtained and hence, the suit is not duly instituted. It has also been argued that perusal of para 1, 2 and 3 of the plaint would show that the appellant has alleged breach in trust deed as respondent no.1 has been illegally appointed and the relief of mandatory injunction claimed by the appellant to direct the respondents to render the true account of all the amount collected by them is covered U/s 92(1)(d) CPC. It has been argued that the appellant is disputing the functioning of the respondents within the trust and hence, the provisions of Section 92 CPC are applicable. Reliance has been placed by the Counsel for the respondents on 162 (2009) DLT : 12 of 20 :
MCA07/10 520 and it has been argued that this judgment has discussed all the judgments relied upon by the Counsel for the appellant and it has been argued that at worst, the position of respondent no.1 is that of trustee de son tort and not that of a trespasser and it has been argued that for removal of such a trustee, a suit comes within the ambit of Section 92 CPC. Reliance has also been placed by the Counsel for the respondents on AIR 1976 SC 1599 ; AIR 2002 Kerela 47 and AIR 1983 Kerela 5 wherein it was held that before granting formal permission by the court U/s 92 CPC, there is no properly instituted suit before the court and no interlocutory order in the proceeding can be passed by the court before granting permission to institute the suit U/s 92(1) of the CPC.
9.2 It has also been argued by Counsel for the respondents that the suit of the appellant is barred by limitation and acquiescence. It has been argued that Dheer Singh was removed by Raghuvir Singh on 30.9.1994 but the removal was not challenged even though, the documents were filed before Registrar of Societies. It was also argued that on 1.11.1994, election list was submitted to the Registrar of Societies and name of Dheer Singh was absent from the said list but the said list was also not challenged by Dheer Singh. Further in Para 7 of the WS, respondents have mentioned the works of development done by them and these paras have not been denied by the appellants. It has been argued that the suit is barred U/s 41(g) of the Specific Relief Act as the appellant has acquiesced to the acts of the respondents and the suit is barred U/s 3 r/w Article 58 of the Limitation Act as a first cause of action for filing the suit arose in 1994 whereas the suit has been filed in December 2009. Reliance has been placed on 2007 (3) : 13 of 20 :
MCA07/10 CCC 248 (SC) and 2008 (2) CCC 650 (SC) and it has been argued that the suit filed beyond the limitation is liable to be dismissed even though no such defence has been taken by the respondent and it is the duty of the court to dismiss the suit or an appeal or application if it is made after the prescribed period. 9.3 Counsel for the respondents has further argued that Order 43 CPC does not provide any provision for grant of stay like Order 41 CPC wherein Rule 5 specifically provides for interim injunction. It has been argued that this court has no power to grant interim injunction in exercise of its inherent powers and reliance has been placed on AIR 1983 SC 1272 wherein it was observed that although the court can in appropriate cases grant temporary injunction in exercise of its inherent powers in cases not covered U/o 39 CPC but while exercising this inherent power, the court should not overlook the statutory provisions which clearly indicate that injunction to restraint initiation of proceedings cannot be granted. Section 41 (b) is one such provision and it must be remembered that inherent power of court cannot be invoked to nullify or stultify a statutory provision. It has further been argued that the appellant did not challenge the Shilanyas Ceremony which took place on 21.2.10 and is now making a belated attempt to trip the respondent on finishing lines. It has vehemently argued that respondents have spent huge amount of public money in raising the construction and the public money would go waste if respondents are restrained from continuing the construction of the suit property. Reliance has been placed on 155 (2008) DLT 56 wherein it was held that delay would be relevant in adjudging a change in the subject matter in an action brought about by a situation in which the : 14 of 20 :
MCA07/10 appellant sat on defence, watching the respondent in which its trade by investment of money and labour and involving third party right at the same time. It was further held that delay in approaching the court, so far as grant of equitable relief is concerned, is always fatal. The belated attempt by the appellant is opposed to the cardinal principle of vigilentibus non dormientibur enquitor and cannot be countenanced by a Court bound to take into consideration legal as well as equitable considerations.
9.4 Counsel for the respondents has also argued that the Appellate Court hearing the appeal against the exercise of discretion by the trial court of first instance will not interfere and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Reliance has been placed by Ld Counsel for the respondents on the judgment of Hon'ble Supreme Court in 1990 (Supp.) SCC 727 and I (2010) SLT 52 wherein these principles have been reiterated.
9.5 Counsel for the respondents has also argued that the conduct of the appellant also disentitles it from the grant of any equitable and discretionary relief. The appellant has not challenged his removal from the trusteeship by Sh. Raghugvir Singh till date. It has also been argued that even after the grant of exparte injunction by this court, appellant did not file affidavit of service and appellant are creating nuisance and are blackmailing the respondents. It was contended that besides the legal requirements of establishing prima facie case, balance of : 15 of 20 :
MCA07/10 convenience and irreparable loss, the grant of temporary injunction being an equitable relief, the discretion has to be exercised only when the conduct of the appellant is free from blame and he approached the court with clean hands. Reliance has been place don the judgments of Hon'ble Supreme Court in IV (2006) SLT 153 and of Hon'ble Punjab & Haryana High Court in 2008 (1) CCC
781. It has also been argued that respondent no.1 has also made complaints to the police against the conduct of the appellant on 3.8.10.
10.I have given my thoughtful consideration to the arguments advanced at bar and have carefully gone through the case law relied upon by the counsels for the parties besides their pleadings and documents.
11. At the outset, it may be mentioned that the principles/guidelines regarding the scope of interference by the Appellate Court in the exercise of discretion by the court of first instance have been laid down by Hon'ble Supreme Court in 1990 (supp.) SCC 727 and it was held :
"An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach the conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion.
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MCA07/10 If discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion".
12.These principles were reiterated again recently in Volume I (2010) SLT 52. Hence, the scope of interference by this court in the exercise of discretion by the trial court is only limited to the extent where discretion has been exercised arbitrarily, capriciously or perversely. This court cannot substitute its own discretion in place of the discretion exercised by the trial court.
13.A careful perusal of the entire record would show that the respondents have been participating in the activities of the temple since long and they have also raised certain constructions as far back as in the year 2004. Although, there were complaints and counter complaints by the parties to the police authorities but no civil suit was ever filed by the then managing committee of the appellant for restraining the respondents from raising any construction in the property of temple trust or challenging the authority of the respondents to participate in the affairs of the trust. Even as per the averments of the appellant, the present managing committee was elected on 1.4.07 but the suit was filed only in December 2009. Thus, it cannot be said that the respondents have been interfering in the management of the affairs of the temple after the election of the new committee only. Rather it appears that respondent no.1 and his associates have been participating/interfering in the affairs of the trust for last many years. In these facts, the contention of the Counsel for the appellant that the managing committee of the appellant is solely looking after the affairs of the trust stands : 17 of 20 :
MCA07/10 disputed by the acts and conducts of the respondents who appear to be running a parallel body. Non filing of the suit by the earlier managing committees of the appellant trust, show that in fact, the appellant trust has acquiesced to the continuing breach by the respondents.
14. Counsel for the appellant challenged the legality of the trusteeship of Gopi Chand Rathi (respondent no.1) on the grounds that he was never appointed as a trustee by Sh. Brij Bhushan Sharma but he was merely a GPA holder on his behalf. It was also argued that since respondent no.1 was not a trustee, he could never be a Pradhan and reliance was placed on the judgments of AIR 1963 SC 709 and AIR 2010 NOC 150 (AP). Even if, the contentions of the Counsel for the appellant are taken to be correct, it is not a case of the appellant that respondent no.1 was a trespasser. In this context, the judgment of Delhi High Court in 162 (2009) DLT 520 is relevant to the facts of the present case. In the said case, Hon'ble High Court discussed the judgments relied upon by the Counsel for the appellant i.e. AIR 1972 Rajasthan 263 and AIR 1986 Allahabad 75 and held that where a person has taken upon himself the management of the trust property purporting to be a trustee without any appointment, such a person is a trustee de son tort and a suit for removal of such a trustee with invalid appointment or even with no appointment comes within the ambit of Section 92 CPC. Even otherwise the question whether respondent no.1 is a trustee or not, is a disputed question of fact which cannot be decided without going through the trial. The dispute with regard to the fact as to which of the party is in possession of the trust property is again in dispute and cannot be decided without going through trial.
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15.Not only this, the appellant has also submitted in its pleadings that the respondents are collecting funds from the public and are booking the ground and vacant plot of the temple trust property since long and the respondents are liable to render true accounts for the same. The appellant has also prayed for a relief of mandatory injunction for directing the respondents to render true accounts of all the amount collected by them as membership fees and charges of booking the ground.
16. Counsel for the respondents has argued that this relief claimed by the appellant is covered U/s 92 (1)(d) CPC and no leave of the court has been obtained by the appellant and the suit of the appellant cannot be said to have been properly instituted and the appellant is not entitled to any interim relief whatsoever.
Counsel for the appellant has denied the applicability of Section 92 to the present suit and has relied upon the judgments of AIR 1967 SC 1044; AIR 1986 Allahabad 75; AIR 1972 Rajasthan 263 and AIR 1952 SC 143. Perusal of these judgments would show that in AIR 1952 SC 143, it was held that in order to invoke section 92 CPC, besides other conditions, it is necessary that the relief claimed is one or the other of the reliefs enumerated therein.
17. In my considered opinion, the relief claimed by the appellant for 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 is squarely covered by Section 92 (1)(d) CPC. Admittedly no leave of the court has been sought by the appellant before instituting the suit. Hence, the suit filed by the appellant appears to be barred U/s 92 CPC.
18. It has also been argued by the Counsel for the respondents that the appellant is : 19 of 20 :
MCA07/10 not entitled to any discretionary relief as the suit itself is not maintainable and reliance has been placed on (1993) 3 SCC 161 and 1993 (2) Latest Judicial Report 713 wherein it was held that while deciding the existence of prima facie this case, a court must consider the maintainability of a suit or action for the purpose of its primafacie satisfaction. In view of my findings that the suit appears to be barred U/s 92 CPC, the appellant was not entitled to any interim relief.
19.Taking into account all the relevant aspects of the case and the arguments raised by the counsels at bar, I am of the considered opinion that the discretion exercised by the Ld. Trial Court cannot be termed as arbitrary, capricious or perverse to the facts of the case. Hence, in view of the law laid down by Hon'ble Supreme Court, I am of the considered opinion that this court cannot substitute its own discretion in place of the discretion exercised by the Ld. Trial Court which is reasonably possible in the facts of the case.
20.Hence, in view of the aforesaid discussions, I do not find any reasons to interfere in the orders passed by Ld. Trial Court. The appeal filed by the appellant is accordingly dismissed. Trial Court Record be sent back alongwith the copy of this order.
The appeal file be consigned to record room.
Announced in the open Court
Dated : 21st August, 2010 (ANIL KUMAR SISODIA)
SCJCUMRC (NE)
KARKARDOOMA COURTS
DELHI.
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21.08.2010 :
Present : None.
Vide separate order announced in open court today, the appeal filed by the appellant is dismissed. Interim order stands vacated. No orders as to costs.
Trial court file be sent back alongwith the copy of this order forthwith. Parties are directed to appear before Ld. Trial Court on 30.08.2010.
Appeal file be consigned to record room.
SCJCUMRC (NE) KKD. COURTS/Delhi/21.08.2010.
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