DADU DAYAL MAHASABHA Vs. SUKHDEV ARYA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of Rajasthan High court dismissing a civil revision application filed by the appellant in the following circumstances.

(2.) The appellant, a registered Society, filed the suit out of which this appeal arises in the court of the District Judge, Jaipur City in respect of an immovable property through its the then secretary which was numbered as Suit No. 11 of 1973. The counsel engaged by the appellant were Sri Satya Narain Sharma and Sri Shyam Bihari Agarwal. The suit was later transferred to the court of Additional District Judge No. 1, Jaipur City where it was renumbered as Suit No. 116 of 1974. After the institution of the suit, an election of the office bearers of the Society was held on 1/06/1973 and according to the appellants case one Sri Laxmandas Swami was elected as the secretary. On 4/09/1974 a prayer for withdrawing the suit was made by one Hari Narain Swami through another lawyer claiming to have been elected as the secretary of the Society. In support of his claim of having been elected as the secretary of the Society Hari Narain Swami produced certain documents on the basis of which the trial court allowed the suit to be withdrawn. According to the case of the appellant, Hari Narain Swami was not elected as the secretary and had no locus standi to withdraw the suit. Since no notice was given of his application for withdrawal of the suit either to the then secretary Laxman Das Swami or to the learned advocates Sri Satya Narain Sharma or Sri Shyam Bihari Agarwal, through whom the suit had been instituted, none of them had any knowledge of the order passed by the court. Later, in the next election, another secretary named Jeeva Nand Swami was elected, and when he learnt about the fate of the suit, an application was filed for recalling the order of withdrawal and restoring the suit to its file. The prayer was contested and the trial court rejected the application. The appellant Society challenged the order before the High court by a petition under S. 115 of the Code of Civil Procedure which was also dismissed by the impugned judgment.

(3.) The trial court after holding that the appellants application filed under S. 151 of the Code of Civil Procedure, was not maintainable, proceeded further to consider the question as to who was the duly elected secretary of the Society, entitled to prosecute or withdraw the suit and accepted the case of Hari Narain Swami. The High court has agreed with the trial court that the application under S. 151 of the Code of Civil Procedure was not maintainable. While agreeing with the argument of the appellant that the trial court had committed several serious errors in deciding the question as to who was the elected secretary of the Society on the relevant date in favour of the respondent the High court observed that the mistake could not be corrected in the present situation.