SHIV MANDIR TRUST Vs. GOPI CHAND RATHI

JUDGEMENT

(1.) TWO orders have been impugned order before this Court. The first order is dated 21.8.2010 and the second is the order dated 16.8.2011. Vide order dated 21.8.2010 the first appellate court had dismissed the appeal against the order dated 24.5.2010 vide which the application filed by the plaintiff seeking relief under Order 39 Rule 1 &

(2.) OF the Code of Civil Procedure (hereinafter referred to as the Code) had been declined. The impugned order had noted that this petition is primarily a petition under Section 92 of the Code and necessary permission not having been obtained the present suit in these circumstances is not maintainable. Impugned order had accordingly declined the relief sought for by the plaintiff under Order 39 Rule 1 & 2 of the Code. Second order dated 16.8.2011 had rejected the prayer made by the defendant under Order 7 Rule 11 of the Code whereby the defendant had prayed that since this suit is a representative suit and the mandatory provisions of Section 92 of the Code not having been complied with, the plaint is liable to be rejected, had been declined. 2. Record shows that the present suit has been filed by the sole plaintiff namely Shiv Mandir Trust through its manager Kishore Saini. Averments made in the plaint are contained in 28 paragraphs. This is a suit for perpetual injunction, declaration, mandatory injunction as also for rendition of accounts. Contention in the plaint is that the plaintiff is a registered society; object of the society is to manage the temple of Lord Shiv situated at Brahmpuri along with other connected temples; the society also has a charitable object to open and run schools, libraries; to carry out its aims and objects a managing committee has been constituted; present suit has been filed through its manager. Futher contention is that the plaintiff through its managing committee has been appointing the Pujari of the temple and currently it has appointed Pandit Chauth Mal Sharma as Pujari since January 2005. The affairs of the temple of Lord Shiva also known as the temple of "Mauni Baba" ; has a duly elected managing committee and one of the members thereof has been authorized to do all acts for and on behalf of the plaintiff society; no one else on behalf of the managing committee has been authorized to collect money on behalf of the managing committee. Accounts are maintained by the treasurer. Defendant no.1 is a retired police official; in January 2007 his membership was cancelled, however, to gain control over the society he started manipulating things with the active connivance of certain other persons i.e. his supporters and henchmen. He tried to transgress upon the property of the temple; kalandra proceedings were also initiated. Further contention being that between October, 2004 to middle 2009 defendant no.1 and his companions continued to make attempts to grab the properties of the plaintiff society. Defendants no.2 to 13 have formed themselves into a registered society with the name and style of defendant no.14 and claim themselves to be the office bearers whereas they are actually henchmen of defendant no.1. Prayers in the plaint have been detailed as follows:

(3.) ON behalf of the appellant reliance has been placed upon a judgment reported in 162(2009) DLT 520 Hamid Ahmed Vs. Asad Mueed as also another judgment reported in AIR 1971 Mysore 298 A.V.Ibrahim & Anr. Vs. Mandepanda Cariappa to support a submission that where the dominant purpose of the suit is regarding the functioning of a charitable body which has actually deviated from its object of charity because of a conspiracy by some defendants, being a mis- management of the trust the suit is covered under Section 92 of the Code and leave of the court not having been sought and not having been granted the plaint is liable to be rejected under Order 7 Rule 11 of the Code.