BANKEY BIHARI LAL Vs. SHIV MANDIR

JUDGEMENT

(1.) Impugned order is the order dated 25.09.2003 vide which the order passed on the application filed by the plaintiffs under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the 'Code') and under Order XL of the Code had been reversed. Vide order dated 17.05.2003, the prayer made by the plaintiffs seeking appointment of a receiver had been allowed; further prayer for grant of interim relief had also been afforded to them; the trial Court was of the view that a prima-facie case is made out by the plaintiffs for grant of ad-interim injunction in their favour; pursuant thereto, the management i.e. defendants No. 2 & 4 were restrained from managing the affairs of the society i.e. of defendant No. 1 and a retired Additional District Judge Mr. S.M. Aggarwal had been appointed as receiver to look after the affairs of the defendant No. 1 as also to conduct elections for the said purpose. This order was subject matter of an appeal which was disposed of vide the impugned order dated 25.09.2003. The impugned order had upset these findings holding that neither a prima-facie case is made out in favour of the plaintiffs for grant of injunction and nor is any ground made out for appointment of a receiver.

(2.) At the outset, it has been urged by learned counsel for the respondents that this Court is sitting in its power of superintendence under Article 227 of the Constitution of India and unless and until there is a manifest error or an illegality committed by the first appellate court, interference under powers of superintendence is not called for. It is in this background that the arguments of the respective counsels have to be appreciated.

(3.) Written submissions have been filed by the plaintiff. Contention is that the trial Court had correctly appreciated the averments made in the plaint which were to the effect that the affairs of defendant No. 1 society were regularly being managed by defendants No. 2 to 4 where financial irregularities were being committed and the said defendants are liable to render accounts of the society; contention being that the strength of the members of the society had earlier increased immensely from 160 to 500 but now it had been brought down to 51 all of whom are family members of the defendant No. 1 society which is being run at the whims and fancies of its management. Contention being that the impugned order upsetting this finding of the trial court suffers from an infirmity.