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2016 DIGILAW 1852 (HP)

Bhagat Ram Dass v. Jagat Ram

2016-09-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition under Section 115 of the Code of Civil Procedure against the order dated 20.6.2016 passed by the District Judge, Bilaspur is maintained by the petitioner whereby the District Judge, Bilaspur dismissed the application preferred under Section 151 CPC for re-calling the order dated 5.9.2014, passed in CMA No. 413/6 of 2014 in Civil Suit No.1/2014, titled Jagat Ram & others versus Bhagat Ram Dass and Others, with a prayer to set aside the order dated 20.6.2016, passed in CMP No. 353/6 of 2016 in Civil Suit No.1 of 2014, titled Jagat Ram versus Bhagat Ram etc. 2. Briefly stating the facts giving rise to the present revision petition are that respondents No.1 and 2 filed an application under Section 92 CPC, praying therein for grant of permission to institute a suit against the present petitioners seeking his removal as a Manager from the Temple of Sri Ram Chandra Ji and Laxmi Narayan Ji at Dhabeta/ Swarghat, Tehsil Sri Naina Devi Ji, District Bilaspur, H.P. It was pleaded vide application seeking leave of the Court to institute the suit under Section 92 CPC that the suit property is the property of the Trust and the same is not being properly managed by the petitioner/defendant No.1, as it ought to have been managed. The application i.e. CMA No. 413/6 of 2014 in Civil Suit No. 1/2014, titled Jagat Ram & another versus Bhagat Ram Dass and others, was allowed by the Court below vide order dated 5.9.2014, without issuance of notice to the present petitioner for providing opportunity of being heard. It has further been alleged that suit under Section 92 CPC was instituted and written statement was filed by defendant No.1 and also by defendants No. 2(1) to 2(16) and by defendant No.2 separately. It has further been alleged that as a consequence of issuance of the notice to the general public, defendants No. 2(1) to 2(59) have registered their representation and such representation has been duly acknowledged by the learned trial Court and it has resulted in arraying them as defendants No. 1(2) to 2 (59), which has caused the amendment in memo. of parties of the suit in question. It has further been averred that when the pleadings of the parties were complete, and the petitioner/defendant No.1 had taken a specific plea of maintainability of the suit. of parties of the suit in question. It has further been averred that when the pleadings of the parties were complete, and the petitioner/defendant No.1 had taken a specific plea of maintainability of the suit. An application under Section 151 CPC (CMP No.353/6 of 2016) was preferred for recalling the order dated 5.9.2014, which was passed on an application bearing No.413/6 of 2014 in Civil Suit No.1 of 2014, vide which permission under Section 92 CPC had been granted to the respondents/plaintiffs at the back of the applicant/present petitioner to institute a suit against the petitioner for his removal from maintaining and worshipping temple of Sri Ram Chandra Ji and Laxmi Narayan Ji at Dhabeta/Swarghat, Tehsil Sri Naina Devi Ji, District Bilaspur, H.P. By filing of reply, the said application was opposed by respondents No.1 and 2 and defendants No. 2(17) to 2(59) and after hearing the parties, the learned District Judge vide order dated 20.6.2016 dismissed the same. 3. I have heard the learned counsel for the parties and have gone through the record of the petition. 4. Learned counsel appearing for the petitioner has vehemently argued that the Court below was required to allow the application and the order of the learned District Judge dated 5.2.2014 was required to be recalled. On the other hand, learned counsel appearing for the respondents has argued that the Court below has rightly dismissed the application and has also framed the preliminary objections with respect to the maintainability of the suit and still they have an opportunity of being heard and to lead evidence. 5. In the order dated 20.6.2016, passed by the learned District Judge, Bilaspur, it has held in para-7 of the order, as under :- “The aforesaid case pleaded by both the parties shows that there is a material controversy between the parties as to whether the suit property is a trust property or not, plaintiffs Jagat Ram and Raj Pal have locus standi to file the suit under Section 92 C.P.C., whether the suit property is being managed by the present applicant Mahant Bhagat Ram Dass being “Wahe Tanmam” of the temple and property. The present applicant Bhagat Ram Dass has pleaded that the suit property is not a property of Trust, whereas, the contention of the present plaintiff is that the suit property is of Trust. The present applicant Bhagat Ram Dass has pleaded that the suit property is not a property of Trust, whereas, the contention of the present plaintiff is that the suit property is of Trust. The said controversy can only be decided on the basis of evidence. To avoid unnecessary delay, preliminary issues can be framed to decide the material controversy between the parties as the main case is fixed for issues after the filing of the written statement. In view of the same, at this stage, I find no ground to re-call the order dated 05.09.2014. Accordingly the application is dismissed.” 6. Further, the Court below has framed the following preliminary issues on 22.6.2016 and the parties are yet to lead evidence :- 1. Whether the suit of the plaintiff is not maintainable in view of Section 92 of C.P.C.? OPD. 2. Relief. 7. In view of the fact that the Court below has framed the preliminary issues and has held that the main issue will be decided after framing the preliminary issues and when the preliminary issues have been framed, this Court finds that the parties are required to be directed to lead their evidence on the preliminary issues before the learned Court below and the learned Court below shall thereafter proceed as per law. 8. Accordingly, this petition is disposed of holding that the preliminary issues, as framed by the learned Court below on 22.6.2016, will be decided by it firstly. Therefore, learned Court below is directed that after affording an opportunity to the parties to lead evidence on the preliminary issues and proceed thereafter as per law. 9. Parties are directed to appear before the lower Court on 30.9.2016. The entire record of this petition along with a copy of the judgment be sent to the learned lower Court for compliance. All pending applications if any, shall also stands disposed of.