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2015 DIGILAW 413 (HP)

Naag Devta Sewa Samiti, Dobri Salwala v. Sant Ram

2015-04-28

SURESHWAR THAKUR

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JUDGMENT : SURESHWAR THAKUR, J. 1. The plaintiff had instituted a suit against the defendants claiming therein the relief of permanent injunction for restraining the defendants/respondents from interfering in the management of Naag Devta Mandir, situated in Dobri Salwala, Tehsil Paonta Sahib, District Sirmaur (H.P.). The suit was contested by the defendants. On the contentious pleadings of parties learned trial Court had framed the issues for rendition of findings thereon: 1. Whether the plaintiff is a registered body and registered under Societies registration Act No. 21 of 1860 vide certificate No. 668-SDM/P-2001 dated 5.10.2001, as alleged? ….OPP 2. Whether the management of Nag Devta Temple Dobri Salwala is being looked after by the plaintiff through its president Sh. Devinder Singh Bhandari and other members of its managing committee, as alleged? …..OPP 3. Whether Sh. Varinder Singh Choudhary General Secretary has been authorized to file the present suit vide Resolution No. 18 dated 15.11.2002 by the Governing/General body of the plaintiff, as alleged? ….OPP 4. Whether the defendants are interfering in the management of the Nag Devta Temple without any right title and interest, as alleged in the plaintiff para No. 5 to 8? If so its effect? …..OPP 5. Whether the defendants are trying to take the possession of the movable and immovable property of the Nag Devta Temple illegally and forcibly, as alleged? ….OPP 6. Whether the plaintiff is entitled to the grant of decree of permanent prohibitory injunction against the defendants, as prayed for? ….OPP 7. Whether the defendant Nos. 1 to 3, 5 and other twelve families are the priests/pujaries of the Nag Devta Temple from generation to generation, as alleged? ..OPD 1 to 3 & 5 8. Whether the defendants Nos. 1 to 3 and 5 are entitled to manage the temple with a right over the offerings of the temple made by the devotees, from time to time and right to perform prayer as priests, as alleged? …..OPD 9. Whether the ancestors of the defendants came from Ajmer, State of Rajasthan as priests with the Maharani of Sirmaur, as alleged, if so its effect? ….OPD 10. Whether the plaintiff has got no cause of action to file the present suit, as alleged? ….OPD 11. Relief. 2. On appreciation of the evidence, adduced by the parties at contest before the learned trial Court, the learned trial Court dismissed the suit of plaintiff/applicant/appellant. 3. ….OPD 10. Whether the plaintiff has got no cause of action to file the present suit, as alleged? ….OPD 11. Relief. 2. On appreciation of the evidence, adduced by the parties at contest before the learned trial Court, the learned trial Court dismissed the suit of plaintiff/applicant/appellant. 3. The plaintiff/appellant/applicant standing aggrieved by the decree of the learned trial Court whereby its suit was dismissed preferred an appeal before learned District Judge, District Sirmaur at Nahan. The appeal was instituted on the ground that the findings recorded by the learned trial Court on all issues are misconceived and required to be interfered with. During the pendency of the appeal, the plaintiff/applicant/ appellant had instituted an application, under Order 41 Rule 27 read with Section 151 CPC and Section 65 of the Indian Evidence Act, for permission to adduce before the learned first Appellate Court certain pieces of evidence, which had remained un-adduced before the learned trial Court, besides permission therein was also sought to lead evidence by way of secondary mode qua documents, recited in application, as true copies thereof stood stolen. The learned first Appellate Court, on considering the submissions addressed before it by the learned counsel on either side, was constrained to dismiss the application. The grounds, which prevailed upon the learned first Appellate Court to dismiss the application, instituted by the applicant/plaintiff/ appellant, were of there being gross indiligence on the part of appellant/plaintiff/applicant constituted by its act of its belatedly instituting the aforesaid application for the reliefs claimed therein, before it. Now the applicant/plaintiff/appellant is aggrieved by the order rendered by the first Appellate Court, whereby its application aforesaid, for the reasons comprised in the orders rendered by learned District Judge Sirmaur, stood dismissed. 4. Heard the counsel of either side. The documents, which are proposed to be adduced by way of additional evidence before the learned first Appellate Court and that too by way of secondary mode, are contended by the learned counsel for the applicant to be just and essential for enabling the learned first Appellate Court to render findings on the apposite issues occurring at Sr. No. 1 to 3 of the hereinabove extracted issues. The extracted issues stood struck by the learned first Appellate Court on the contentious pleadings of parties. No. 1 to 3 of the hereinabove extracted issues. The extracted issues stood struck by the learned first Appellate Court on the contentious pleadings of parties. The issues aforesaid devolve upon the factum of maintainability of suit as instituted by the plaintiff as also devolve upon the factum whether the management of Nag Devta Temple Dobri Salwala is being looked after by the plaintiff through its president Sh. Devinder Singh Bhandari and other members of its managing committee. Even if the prayer of the learned counsel for the applicant for adducing additional evidence by way of secondary mode, accompanied by relevant documents, before the learned first Appellate Court for constraining apposite findings on the aforesaid issues stands allowed, yet it would not cause any harm to the opposite party/defendants, especially when the issues aforesaid hence are not core issues rather are merely issues impinging upon the maintainability of the suit. 5. The reasoning adopted by the learned First Appellate Court for rejecting the application preferred by the applicant/plaintiff/appellant is constituted in the fact of it despite having knowledge and possession of documents proposed to be adduced by way of additional evidence and that too by secondary mode it indiligently having taken to belatedly institute it before it. The said reason as propounded by the learned First Appellate Court stands whittled down by the fact that when adjudication on the apposite issues No. 1 to 3 in proof whereof the aforesaid items of additional evidence by secondary mode are proposed to be adduced would be facilitated by their adduction by secondary mode. Consequently, when their adduction is just and essential for rendering a firm and conclusive findings on issues No. 1 to 3, as such, even if there is purported gross indiligence or a procrastinated delay on the part of the applicant/plaintiff to institute an application earlier before the learned trial Court for theirs being adduced by secondary mode, the factum of theirs being just and essential for deciding or rendering findings on issues No. 1 to 3 benumbs and overwhelms the effect, if any, of the reasoning afforded by the learned First Appellate Court for not permitting theirs being adduced into evidence by secondary mode. In sequel, given the essentiality of their adduction for rendition of a decision by the First Appellate Court on issues No. 1 to 3 permission for their adduction as additional evidence by way of secondary mode is accorded. The findings of the learned First Appellate Court in rejecting the application preferred by the applicant/plaintiff before it on the ground of gross indiligence constituted by its procrastinated delay in instituting it earlier are legally infirm. Consequently, the impugned order is quashed and set-aside. 6. To curtail the length of litigation, it is ordered that on adduction before it by the plaintiff/applicant of the items of additional evidence, the learned First Appellate Court hence on their adduction before it shall appreciate/evaluate them and record findings on apposite issues No. 1 to 3 alongwith other issues, on which the parties at lis are at contest. 7. With the aforesaid observations, the petition stands allowed. The impugned order rendered on 8.8.2014 is set aside. The learned first Appellate Court is directed to complete the entire exercise relating to adduction of evidence and rendition of findings on issues No.1 to 3 and other issues within a period of six months.