Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 684 (RAJ)

Prem Chand v. Ram Prasad

2016-05-13

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. The present appeal has been filed by the appellant against the order dated 26.04.2016 passed by the Additional District Judge, Parbatsar in Misc. Case No. 59/2015 whereby, the application filed by the respondent plaintiff under Order 39, Rule 1 & 2 CPC has been partly allowed. 2. Respondent No.2 has filed caveat in this matter and has raised preliminary objections to the maintainability of the appeal filed on behalf of appellant and it is argued that firstly, the stay application has been filed under provisions of Order 41, Rule 5 CPC whereas, the Order 41, Rule 5 CPC is applicable only in cases where the decree was passed by the learned trial court whereas, present appeal has been filed feeling aggrieved against the order passed on application under Order 39, Rule 1 & 2 CPC. Secondly, it is argued that respondent no.3 Akhil Bhartiya Dayma (Dadich) Brahmin Mahasabha (hereinafter referred to as ‘Mahasabha’) is registered under the Societies Registration Act and as per constitution, the Mahasabha can only be represented by General Secretary and all legal proceedings can be initiated on behalf of General Secretary and present appeal has not been filed by General secretary of Mahasabha, therefore, the same is not maintainable. It is further argued that the election committee has been constituted and election programme has also been announced and in pursuance of election programme, voter list has also been published and while relying upon the judgment of Hon’ble Supreme Court in the case of Shaji K. Joseph v. V. Viswanath & ors., (Civil Appeal No. 1629/2016), it is submitted that once the election process starts, it would not be proper for the Courts to interfere with the election process. 3. Per contra, counsel for the appellant submits that the appellant is holding the post of Treasurer of the Mahasabha and remained party to the litigation, therefore, he is very much entitled to file the present appeal. 4. I have heard learned counsel for the parties and perused the order impugned. 5. The respondent no.3 Mahasabha is a registered society under the Societies Registration Act and as per registered constitution, the Mahasabha can only be represented through General Secretary and as per the constitution, the General Secretary is authorised to initiated all legal proceedings whereas, the present appeal has not been filed by the General Secretary of the Mahasabha. 6. 5. The respondent no.3 Mahasabha is a registered society under the Societies Registration Act and as per registered constitution, the Mahasabha can only be represented through General Secretary and as per the constitution, the General Secretary is authorised to initiated all legal proceedings whereas, the present appeal has not been filed by the General Secretary of the Mahasabha. 6. The trial court in para no.29 of the impugned order has observed to the following effect:- ^^Lohd`r :i ls foi{khx.k dk dk;Zdky fnukad 04-11-2015 dks lekIr gks x;k gS ,oa fnukad 04-11-2015 ds i'pkr~ foi{khx.k dks vf[ky Hkkjrh; nkfgek nk/khp czkg~e.k egklHkk ds v/;{k] egkea=h o dks"kk/;{k dh gSfl;r ls dksbZ Hkh vkns'k ,oa funsZ'k ikfjr djus dk izFke n`"V;k vf/kdkj vfLro esa ugha jgrk gSA lafo/kku dh /kkjk 13&[k esa Li"V :i ls ;g rF; micaf/kr fd;k x;k gS fd v/;{k dk dk;Zdky ikap o"kZ dk gksxk] ftls dk;Zdkfj.kh }kjk ,d o"kZ rd c<+k;k tk ldsxkA mijksDr micaf/kr fd;s x;s izko/kkuksa ds vuq:i foi{khx.k ds dk;Zdky esa ikap o"kZ dh vof/k ds mijkUr ,d o"kZ dh vkSj vfHko`f) dh x;h gS ,oa ,d o"kZ dh vof/k ds mijkUr foi{khx.k ds dk;Zdky esa fdlh Hkh izdkj dh dksbZ vfHko`f) ugha dh tk ldrh gSA bl izdkj i=koyh ij miyC/k vfHkys[k ls foi{khx.k ds tokc rFkk vf[ky Hkkjrh; nkfgek nk/khp czkg~e.k egklHkk ds fo/kku esa micaf/kr fd;s x;s izko/kkuksa ds vuq:i izkFkhZx.k ds }kjk bl vkosnu esa tks rF; vfHkdfFkr fd;s x;s gS] muls izkFkhZx.k }kjk bl vLFkkbZ fu"ks/kkKk ds vkosnu esa rFkk bl vLFkkbZ fu"ks/kkKk ls lacaf/kr okni= esa ,d xaHkhj lkjHkwr ,oa lkjoku~ iz'u U;k;ky; ds le{k fopkj.k gsrq izLrqr fd;k x;k gS rFkk izkFkhZx.k ds }kjk ,d xaHkhj] lkjHkwr iz'u U;k;ky; ds le{k fopkj.k gsrq izLrqr fd;s tkus ds rF;ksa ds ifjizs{; esa izkFkhZx.k ds i{k esa foi{khx.k ds fo:) vius mDr dk;Zdky dh lekfIr ds i'pkr~ dksbZ Hkh izHkkoh vkns'k ikfjr ugha fd;s tkus dh lhek rd izFke n`"V;k dsl izekf.kr gksrk gS vkSj blh vuq:i izkFkhZx.k ds i{k esa izFke n`"V;k dsl dk fcUnw vfHkfu/kkZfjr fd;k tkrk gSA** 7. Further, the election notification issued being Annex. R/2/2 annexed by the respondent no. 2. along with reply to the stay application has not been challenged in any proceedings and it is settled law to the effect that once the process of election starts, no court should interfere with the election process. Further, the election notification issued being Annex. R/2/2 annexed by the respondent no. 2. along with reply to the stay application has not been challenged in any proceedings and it is settled law to the effect that once the process of election starts, no court should interfere with the election process. On this ground also, no interference is called for in the impugned order dated 26.04.2016, hence, this appeal is hereby dismissed.