B. Mohan Kishan Seth v. Ram Prasad, Claimants — 1948 DIGILAW 108 (ALL)

JUDGMENT 1. This is an appeal against a decision of the learned Civil Judge, first grade, Unnao, allowing an objection claim preferred under S. 11, Encumbered Estates Act. 2. The material facts are as follows: On 7th March 1914, a mortgage was created by Kallu Mul and Madho Prasad in favour of one Baba Lachman Das for a consideration of Rs. 20,000. After the death of the mortgagee, there was a partition in big family and this mortgage debt was allotted to the share of one of the sons of Lachman Das--Fateh Narain Das. Fateh Narain. Das put the deed in suit and on 15th October 1929, obtained a decree for sale. The amount due to him was held to be Rs. 93,117. Fateh Narain Das died in 1931. He bad executed a will in respect of his property before his death. The present appellants are the executors under the will. In. 1936, some of the legal representatives of the mortgagors made an application under S. 4, Encumbered Estates Act, which in due course was forwarded to the Special Judge first grade, Unnao, for disposal. The property now in dispute--a house (or as the opposite party alleged a public temple) was not shown by the applicants landlords as property which was liable to attachment and sale for satisfaction of their debts. In 1937 a claim was filed by the executors of the will of Fateh Narain Das on the basis of the mortgage decree to which reference has been made. They referred to the property in question as a house which belonged to the judgment-debtors (applicant landlords) and was liable to attachment and sale for satisfaction of their debts. This item of property was accordingly published in the gazette dated 24th August 1938. On 7th December 1936, five persons, Sukh Ram, Adhin, Ram Lal, Ratti Ram and Manohar Lal preferred a claim under S. 11, Encumbered Estates Act, in respect of this property. They prayed "that the said property be declared a public waqf and it be declared that it is not the property of defendants 4 and 5". This objection claim was dismissed. An appeal against this decision was preferred to this Court but was unsuccessful. The decision of this Court was pronounced on 6th January 1943, On 10th March 1943, there was filed another objection claim by respondents 1 to 7 in respect of the same property. This objection claim was dismissed. An appeal against this decision was preferred to this Court but was unsuccessful. The decision of this Court was pronounced on 6th January 1943, On 10th March 1943, there was filed another objection claim by respondents 1 to 7 in respect of the same property. They averred that the property in question was a public temple and that they were the duly appointed trustees of the same. It was stated on their behalf that they had no knowledge of the proceedings pending in Court of the Special Judge, first grade, Unnao, and that as soon as they came to know that the property in suit was claimed to be an item available for satisfaction of the debts of the applicant landlord, they had preferred their claim. 3. The executors of the will of Fateh Narain Das contested this claim. They raised three pleas: 1. That the objection claim was unduly delayed without any sufficient cause and should not be entertained; 2. that the house called "public temple" was not a temple at all, far less a public temple. It was according to them a residential house in which there was placed an idol for worship by the owner of the building; and 3. that the claim was barred as res judicata. 4. The learned Special Judge held on an examination of the evidence adduced before him that Narain Das, secretary of the managing committee of the temple, came to know of the proceedings pending in the Court of the Special Judge, first grade, Unnao, in respect of this property only a fortnight before the objection claim which gave rise to this appeal was filed. After having come to know of the existence of the proceedings, Narain Das consulted other members of the committee and then it was decided that an objection claim should be preferred. In these circumstances he condoned the delay in filing the objection. He further held that the building in question was a public temple, and that the decision in a previous case which was relied on for the plea of res judicata on behalf of the appellants, did not bar the present claim. The objection claim was accordingly allowed with costs. Dissatisfied with this decision the executors of the will of Fateh Narain Das have preferred the present appeal. 5. The objection claim was accordingly allowed with costs. Dissatisfied with this decision the executors of the will of Fateh Narain Das have preferred the present appeal. 5. The contentions which were raised before the trial Court have been repeated before us. The learned Special Judge framed the following issues : 1. (a) Whether the house in question is a temple? (b) If so, is it a public temple? 2. Is the present claim barred by the principle of res judicata? 3. Is the delay in the filing of the claim justifiable ? 4. To what relief, if any, are the claimants entitled? 6. We will take up issue No. 1 first, [Their Lordships reviewed the evidence]. Agreeing with the trial Court we hold that the building in question is a public temple. 7. It appears that on 7th December 1938, five persons, Sukh Ram, Adhin, Ram Lal, Rati Ram and Manohar Lal preferred an objection claim with regard to this building in the Court of the Special Judge, Unnao. The relevant portion of this application reads as follows: Application under S. 11, Encumbered Estates Act: 1. That the applicants are the residents of Naka Hindola city Lucknow and do pujapat (worship) at the thakurdwara situate at Mohalla Naka Hindola city Lucknow bounded as below. 2. That the opposite parties 1 and 2 have shown in their application that the said property is the property of opposite-parties 4 and 5 and it has also been published in the gazette. 3. That Kallu Mul father of opposite party No. 5 and uncle of opposite party 2, having constructed this thakurdware about 50 years ago, got Thakurji installed therein and opened it for public use (paper torn). 4. That the said property is a public thakurdwara and the general public has been doing puja (worship) in it for the last SO years. 5. That the aforesaid thakurdwara is not the property of opposite parties 4 and 5 nor is it fit to be sold. Hence filing this application it is prayed that the said property be declared a public waqf and it be declared that it is not the property of defendants 4 and 5. This claim was dismissed. An appeal preferred against this decision to this Court was unsuccessful. It is contended on these facts that the previous judgment operated as res judicata and barred the trial of the issues now raised. This claim was dismissed. An appeal preferred against this decision to this Court was unsuccessful. It is contended on these facts that the previous judgment operated as res judicata and barred the trial of the issues now raised. We are unable to accept this contention. To begin with the previous claim was not a claim which was either in form or in substance brought in a representative capacity. We are not oblivious of the fact that the relief claimed by the objectors in that claim was "that the said property be declared a public waqf and it be declared that it is not the property of defendants 4 and 5." This does not however lead to the conclusion that the claim was brought in a representative capacity on behalf of the Hindu public. It appears that the five persons who brought the claim did so in their individual capacity. This is clear from their statements in para. 1 of the claim that "the applicants are the residents of Naka Hindols, city Lucknow, and do pujapat (worship) at the thakurdwara situate at mohalla Naka Hindola, city Lucknow, bounded as below." Paragraph 2 of the petition mentions the facts which furnished the petitioners with a cause of action viz., the assertion by opposite parties 1 and 2 that the property in question belonged to opposite parties 4 and S. Nor is there anything in the succeeding paragraphs which would suggest that it was suit brought in a representative capacity. That a suit is or is not brought in a representative capacity does not depend upon the relief claimed but must be gathered from the whole frame of the suit and the averments made in the petition. There must be something to indicate that the plaintiffs or the petitioners desired to represent a class of persons and instituted a suit in a representative as distinct from their individual capacity. If the relief claimed is such that in case it is granted, persons other than the petitioners or plaintiffs may benefit thereby, this would be no criterion to judge whether the suit is brought in a representative capacity or not. As already shown, there was nothing in the objection petition by Sukh Ram and others (Ex. A 1) to suggest that they were suing in a representative capacity. 8. As already shown, there was nothing in the objection petition by Sukh Ram and others (Ex. A 1) to suggest that they were suing in a representative capacity. 8. Reliance was placed by the learned counsel for the appellants in support of his contention on Expl. VI to S. 11, Civil P.C. It is essential for the application of that provision of law that the suit must be a bona fide suit. Reference to the circumstances of the objection claim preferred by Sukh Ram and others would show that they were in any case guilty of gross negligence in the prosecution of the claim, and it cannot accordingly be said that they were litigating bona fide. After the objections under S. 11, Encumbered Estates Act, were filed, issues were framed on 24th January 1938. 15th March 1939 was fixed for final disposal of the objections. On the date of hearing an application was presented on behalf of the objectors for an adjournment of the case on the ground that there was a talk of compromise. It was averred that the opposite party had agreed to file a joint application for adjournment in order to get the compromise effected and consequently the objectors were not ready with the evidence on that date. This was denied by the counsel for the opposite party who also opposed the prayer for adjournment. No affidavit in support of the application for adjournment was filed (see Ex. A 6). In these circumstances the Special Judge refused to adjourn the case and dismissed the application for want of evidence. An appeal was preferred against this decision which was disposed of by a Bench of this Court. The learned Judges observed that the Judge in the trial Court was justified in not granting the adjournment to the objectors. They further remarked: It was their duty to have summoned their witnesses for 15th March 1939 in support of their objections. There is no evidence on record to support the allegation of the objectors that the opposite parties had Agreed to present a joint application for adjournment of the case. It was discretionary with the learned Judge whether to adjourn or not to adjourn the hearing of the objections. It appears to us that the learned Judge was of opinion that the objectors were not diligent in prosecuting the objections and there were no reasonable grounds for adjournment. It was discretionary with the learned Judge whether to adjourn or not to adjourn the hearing of the objections. It appears to us that the learned Judge was of opinion that the objectors were not diligent in prosecuting the objections and there were no reasonable grounds for adjournment. We are on these facts unable to hold that Sukh Ram and others were conducting that litigation bona fide. 9. The provisions of O. 1, R. 8, Civil P.C., were not complied with. It was contended by the learned counsel for the appellants that failure to comply with the provisions of O. 1, R. 8 could not necessarily be a bar to the application of S. 11, Expl. VI. When his attention was drawn to the decision of their Lordships of the Privy Council in AIR 1933 183 (Privy Council) , to which reference is made in the judgment of the trial Court, he referred to the following cases : AIR 1937 1 (Privy Council); AIR 1937 70 (Lahore) Maharaja Kesho Prasad Singh Vs. Sheopargash Ojha and Others, AIR 1922 All 301 Shankar Lal Purshottam Gor v. Dakor Temple Committee, 94 I.C 47 at. p. 51 : (A.I.R. 1928 Bom. 179) and Lal Mohan Dhupi and Another Vs. Ram Lakhmi Dassya and Others, AIR 1932 Cal 271 and tried to persuade us to hold that Expln. VI of S. 11, Civil P.C., was not controlled by the provisions of O. 1, R. 8 of the Code. We are unable to accept this contention. The view of the Judicial Committee is clearly expressed in the following observations of Lord Blanesburgh in AIR 1933 183 (Privy Council) where he quotes with approval a passage from the decision of the Calcutta High Court in Baiju Lal Parbatia v. Bulak Lal Pathuk, 24 cal. 385 at p. 390: In their Lordships' view the position under S. 30 (this corresponded to the present O. 1 R. 8, Civil P.C.,) is correctly and clearly stated by Ameer Ali J. in Baiju Lal Parbatia v. Bulak Lal Pathuk, 24 Cal. 385 at p. 390) where he says : The effect of S. 30 is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect on the persons be chooses to represent. 385 at p. 390) where he says : The effect of S. 30 is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect on the persons be chooses to represent. If the course prescribed by S. 30 is not followed in the first case, the judgment does not bind those whose names are not on the record. The quotation from 24 Cal. 385 (390) ends with the word "represent". The subsequent portion of the passage within inverted commas is a quotation from 23 Mad. 28 (32) The contention of the learned counsel for the appellants on this part of the case must, therefore, be rejected. 10. Before bringing this discussion to a close, we may mention that according to the evidence on record a committee for the management of the temple has been in existence for the last so years. It would appear, generally speaking, that these were the persons entitled to have a say in the matter and should have been made parties to the previous litigation. They were not impleaded and obviously had no notice of the proceedings initiated by Sukhram and others. We are of opinion that the learned Judge in the Court below came to a correct conclusion on the question of res judicata. 11. The only point which remains for consideration is whether the objection claim having been preferred so long after the publication of notice in the gazette, it should or should not have been entertained. Narain Das is the secretary of the managing committee of the temple. He pledged his oath that he had no notice of proceedings that were before the special Judge, Unnao, relating to this property till a fortnight before the objection claim was filed in the Court in Unnao. The members of the managing committee belonged to Lucknow. The temple to which the litigation relates is in Lucknow. It is, therefore, no matter for surprise that the members of the committee were not aware of those proceedings. The evidence of Narain Das which stands unrebutted was accepted by the learned Judge in the Court below who saw the witnesses and we have no reason to differ from him. The temple to which the litigation relates is in Lucknow. It is, therefore, no matter for surprise that the members of the committee were not aware of those proceedings. The evidence of Narain Das which stands unrebutted was accepted by the learned Judge in the Court below who saw the witnesses and we have no reason to differ from him. Our attention was invited by the appellants' learned counsel to a number of circumstances which according to him suggest that there was a reasonable probability that some one or other of the members of the managing committee would come to know of the existence of the proceedings. He pointed out that a notice was published in the Gazette, that there was a proclamation made by beat of drum in Naka Hindola that the property in question was claimed as liable to sale for satisfaction of the debts of the applicant landlords. He pointed out further that according to the evidence four members of the managing committee, Sunder Lal, Hansraj, Narain Das and Bhairon Prasad, attended the temple every day. He asked us to hold on these facts that the members of the committee had notice of the proceedings. The circumstances to which the learned counsel has referred cannot outweigh the definite evidence of Narain Das. We are of opinion that the learned Judge came to a correct conclusion and was justified in condoning the delay in preferring the objection claim. 12. The result, therefore, is that none of the points raised by the learned counsel for the appellants can be upheld. The appeal fails and is dismissed. The appellants shall pay the respondents their costs.