LAWS(ALL)-2000-8-25

PRABHU DAYAL TIWARI Vs. LAKHAN SINGH

Decided On August 11, 2000
PRABHU DAYAL TIWARI Appellant
V/S
LAKHAN SINGH Respondents

JUDGEMENT

(1.) IN this case counter and rejoinder affidavits were filed by the parties. As desired by the learned counsel for the parties, case was heard and is being decided finally at this stage.

(2.) THE instant revision arises out of the proceedings under S. 92, C. P. C. and is directed against the judgment and order passed by the District Judge, Jhansi, dated 4-12-1992, granting permission to the contesting respondents to institute a suit under S. 92. C. P. C. with respect to the temple, known as, Sri Kalyan Rai Ji Virajman Mandir, Madhopura, village Bhasneh, Pargana Garautha, district Jhansi, for short 'property in dispute'. THE opposite parties filed an application under S. 92, C. P. C. praying for granting permission to file the suit for constitution of a trust committee and to frame a scheme of administration for managing the trust property. It was claimed that the said property was a public trust, which was being mismanaged, therefore, it was necessary to frame a scheme of administration for proper administration of the trust property. On receipt of the notices from the Court of the District Judge, applicants filed their objection pleading that the trust in question was not a public trust, that it was an ancestral and personal temple established by Bhagwan Das appointed Mahant Ram Das Chela as Manager/sarvarkar of the properties of the temple. He also executed a registered will dated 6-9-1983 in favour of Chela Prabhu Dayal. It was contended that the application filed under S. 92, C. P. C. , therefore, was liable to be dismissed.

(3.) LEARNED counsel for the applicants vehemently urged that permission to institute a suit under S. 92, C. P. C. was a condition precedent. The respondents have acted illegally in filing the suit and simultaneously applying for permission under S. 92, C. P. C. The Court below is also stated to have acted illegally and in excess of its jurisdiction for entertaining the said application and allowing the same. It was also urged that the order passed by the Court below is a non-speaking order inasmuch as the Court below failed to take into consideration and examine critically the documentary evidence filed by the applicants and acted illegally and arbitrarily in allowing the same. The impugned order was, thus, liable to be quashed. On the other hand, learned counsel appearing for the contesting respondents submitted that the order impugned in the present revision was an administrative order, which was not revisable under S. 115, C. P. C. The revision as framed and filed, was therefore, liable to be dismissed. It was submitted that the Court below has rightly granted permission to institute the suit under the facts and circumstances of the present case. The revision filed by the applicants was, therefore, liable to be dismissed. It was also urged that the order under challenged was appealable under Order 43 Rule 1 read with S. 104, C. P. C. LEARNED counsel for the parties in support of their contentions also referred and relied upon decisions of this Court as well as the Supreme Court, which I will deal with hereafter at appropriate place.