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2009 DIGILAW 190 (UTT)

BUDH NATH v. BACHCHI RAM @ VIDYASAGAR

2009-04-23

PRAFULLA C.PANT

body2009
JUDGMENT This appeal, preferred under Section 96 read with Order XLI Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.), is directed against the order dated 30.03.2000, whereby the trial court (District Judge, Pauri Garhwal) has quashed the permission granted by his predecessor under Section 92 of C.P.C. to institute the suit, and rejected the plaint under Order VII Rule 11 of C.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case giving rise to this appeal are that the plaintiffs/appellants – Budh Nath and Satimpal, instituted suit No. 13 of 1994, under Section 92 of C.P.C. before District Judge, Pauri, seeking following reliefs :- (a) That a scheme be got prepared for maintenance, management and ‘pooja’ in the temple and Dharamshala in suit. (b) That the defendant be directed to give accounts of income from the temple property. (c) The defendant be restrained from interfering in the work of Pujari and Manager of the temple and property. 4. District Judge, Pauri, vide his order dated 02.05.1994, granted the permission under Section 92 of the Code and passed following order :- “5-C is an application by the plaintiff for permitting them to file this suit under Section 92(1) of the C.P.C. with the allegations that the temple of Hanuman ji is situated in Khasra No. 41, Khet No. 230 in Kasba-Srinagar and Khet No. 237 is also the property of said temple, where the statue of God Garur is situated. The entire property adjoining the temple including the Dharmshala is the property of the temple but the O.P. is intended to sell the property of the temple and is usually treated his personal property. He is also making altercations in the property. The applicants being Hindus and being in trust in the property maintenance of the temple property and temple and their Pooja-path, according to Hindu religion. They want to file the suit. Affidavit by Sri Budhnath has also been filed in support of these allegations. Besides this extract of Khatauni, copy of the report of Supervisor Kanoongo dated 13.08.1978, report of P.S. Srinagar, report of Patwari dated 15.01.1978, copy of the order of the Sub Divisional Magistrate, have also been filed and thereby the plaintiff has made out a prima facie case under Sec. 92(1). Besides this extract of Khatauni, copy of the report of Supervisor Kanoongo dated 13.08.1978, report of P.S. Srinagar, report of Patwari dated 15.01.1978, copy of the order of the Sub Divisional Magistrate, have also been filed and thereby the plaintiff has made out a prima facie case under Sec. 92(1). Accordingly, the permission is granted to the plaintiff to file the suit. District Judge.” 5. It appears that the defendant, after he put in his appearance in the case, contested the suit by filing the written statement before the trial court. However, during the pendency of suit, it appears that the defendant challenged the proceedings of the suit by filing writ petition No. 13229 of 1999, Bachchi Ram Vs. State of U.P. and othes, before Allahabad High Court, which was disposed of by said court on 31.03.1999, with following order :- “Heard the learned counsel for the parties. The petitioner has an alternative remedy of filing an application under Order VII Rule 11 (d) C.P.C. in Suit No. 13 of 1994. If the petitioner files such an application the same will be decided first before proceeding with the suit. The petition is disposed of accordingly. Sd/- M. Katju Sd/- Bhawar Singh” Thereafter, the defendant filed an application 84-C before the District Judge, Pauri Garhwal, seeking rejection of the plaint under OrderVII Rule 11(d) of Code of Civil Procedure, 1908, which was allowed by the trial court vide its impugned judgment and order dated 30.03.2000, whereby the order granting permission under Section 92 C.P.C., passed by his predecessor was quashed by District Judge, Pauri Garhwal, and also rejected the plaint under Order VII Rule 11(d) of the Code. Hence this appeal. 6. It is settled principle of law that a plaint can be rejected under Order VII Rule 11(d) of C.P.C. only on the basis of the pleadings in the plaint and not on the ground that the plaintiff has not made out a case by not filling evidence in it. The impugned order passed by the trial court shows that said court has considered the grounds mentioned in application 84-C that the plaintiff has failed to file any document in support of his case. The observation of the District Judge while allowing application 84-C and rejecting the plaint is relevant to be mentioned here :- “...... The impugned order passed by the trial court shows that said court has considered the grounds mentioned in application 84-C that the plaintiff has failed to file any document in support of his case. The observation of the District Judge while allowing application 84-C and rejecting the plaint is relevant to be mentioned here :- “...... It is also important to note here that there are also revenue record, paper No. 9-Ga/2, 10-Ga/1, 11-Ga, 12-Ga, 13-Ga and 14-Ga. Revenue record goes to show that Budhnath, plaintiff No. 1 and above Ramcharan Das have been shown as co-sharer of the disputed property Khasra No. 230 and 237 above. Therefore, part of the above property was transferred by way of executing the sale deed by the plaintiff Budhnath to Sri Ansuya Prasad. This document also does not support the version of the plaintiff that the disputed property is the Trust property or any Trust was created by Pancham Das and Ram Charan Das. It is also admitted on behalf of the plaintiffs above in the plaint that no any written Trust was created by Pancham Das or by any other person. In absence of written creation of any Trust, prima facie, it is not liable to be deemed that the above disputed property of temple comes within the purview of Trust property..........” The above para in the impugned order itself shows that instead of going by the pleadings in the plaint, the District Judge, has discussed the evidence of the case, filed before it. In the opinion of this Court, the District Judge has erred in law in discussing the shortcomings in the evidence while rejecting the plaint under Order VII Rule 11 of C.P.C. 7. Learned counsel for the respondent drew attention of this Court to principle of law laid down in Vidyodaya Trust Vs. Mohan Prasad R and others (2008) 4 Supreme Court Cases 115, and argued that since the permission was granted to sue under Section 92 of C.P.C. in April 1994, without issuing notice to the defendant, as such, defendant has every right to show that permission granted was liable to be revoked. Mohan Prasad R and others (2008) 4 Supreme Court Cases 115, and argued that since the permission was granted to sue under Section 92 of C.P.C. in April 1994, without issuing notice to the defendant, as such, defendant has every right to show that permission granted was liable to be revoked. After going through said case law and the provisions contained in Section 92 of C.P.C., it is sufficient to mention here that the object of Section 92 of C.P.C. is to protect the interest of public over the properties owned by an express or constructive trust of charitable or religious in nature. It is not required that the trust must be an express trust. The plaintiff has come up with a case that the temple and Dharamshala, situated in Village Bhalgaon Lagga Kothad, Patti-Katalsyun, District Pauri Garhwal, were established long time back by Nath Community. It has been pleaded that how the same were maintained and looked after for facilitating the pilgrims going on foot to Badrinath. Though it has been admitted in one of the paras that at one point of time, name of plaintiff No. 1 was recorded in the revenue record but in the next para i.e. para No. 9, it is stated that the property since 04-09-1998, was recorded in the name of State of U.P. Merely for the reason that at one place, the plaintiff had admitted that said property was recorded in his name, does not disentitle him to seek remedy under Section 92 of C.P.C. for the reliefs claimed protection of rights of public in the property in suit. 8. For the reasons as discussed above, this Court is of the view that learned District Judge, Pauri Garhwal, has erred in law in quashing the permission granted by his predecessor and rejecting the plaint under Order VII Rule 11 of C.P.C. Therefore, this appeal deserves to be allowed. The appeal is allowed. The impugned order dated 30-03-2000, passed by District Judge, Pauri Garhwal on application 84-C (in suit No. 13 of 1994) is set aside. Suit stands restored. The application 84-C, moved by defendant before the trial court is rejected. The trial court is directed to proceed with the suit and decide it as expeditiously as possible, without being influenced by the observations of this Court in this order. Registry is directed to send back the lower court record.