RAMA KANT DWIVEDI Vs. DISTRICT MAGISTRATE FARUKHABAD

JUDGEMENT

(1.) This writ petition is directed against the judgment end order dated 23-9-1993 of II Additional District Judge by which the appeal preferred by defendant No. 3 was allowed and the order dated 26-8-1993 passed by II Additional Munsif Farukhabad granting injunction in favour of the plaintiff was set aside.

(2.) I have heard Serve Sri R K. Jain, Senior Advocate and Prakash Krishna on behalf of the contesting respondent and considerable length bud have also examined the record, in short the case of the plaintiff was that there is a Society known as in Shiksha Parish ad Farrukhabad which is running several institutions named as Saraswati Shishu Mandir and the plaintiff was the manager of the Committee of Management of one of such institutions, namely, Saraswati Shishu Mandir, Mahesh Nagar, Muhmdabad. Defendant Nos. 1 and 2 passed orders on 29-7-1993 and 3-8-1993 by which he was directed to hand-over certain papers to defendant No 3. According to the plaintiff, the defendant No. 3 has no concern with the aforesaid institution, and therefore the orders passed by the authorities were wholly illegal A suit was accordingly filed for injunction restraining the defendants from interfering with the plaintiff's right to manage the Institution on the basis of the orders dated 29-7-1993 and 3-8-1993. Along with the plaint an application for interim injunction was also moved whereby the plaintiff prayed that the defendants be restrained from interfering with the plaintiff's right to manage the institution during the pendency of the suit. The injunction application was contested by the defendant No 3 on the ground inter alia that the plaintiff had no concern with Saraswati Shishu Mandir, Mahesh Nagar, Muradabad nor was he manager thereof. It was also pleaded that the society named at Jan Shiksha Parishad Farrukhabad had no concern with the Institution in dispute nor the said institution was ever run by the plaintiff-Society. It was further pleaded that the defendant No. 3 had given his own land and with bis permission the institution Saraswati Shishu Mandir was established on the land belonging to him and the plaintiff wanted to take forcible possession of the same.

(3.) The learned Munsif by order dated 26-8-1993 granted injunction in favour of the plaintiff which has been set aside in appeal by the learned Addl. District Judge. In my opinion, the order passed by the learned Munsif is wholly illegal learned Munsif has not recorded any finding on the question as to whether the Society known as Jan Shiksha Parishad was running the institution known as Saraswati Shishu Mandir Mohradabad, Distt Farrukhabad The learned Munsif has also not considered the defendant's case that the institution was an independent body which had nothing to do with Jan Shiksfia Parishad and that the building bad been constructed on the land belonging to defendant No. 3. The only reason given by the learned Munsif is that since by the impugned orders of defendant Nos. 1 and 2 the plaintiff was directed to hand-over the papers to defendant No. 3, therefore, he was in possession and the prima fade case was in his favour. In my opinion the approach of the learned Munsif was wholly illegal in view of the objection filed by defendant No 3 it was incumbent upon the learned Munsif to go into these questions. Learned Addl. District Judge has reversed the finding of the learned Munsif and has also relied upon the register of the school regarding payment of salary to the teachers which did not prima facie establish that Rama Kant Dwivedi (plaintiff) bad been recognized as Manager by the Basic Shiksha Adhikari do not find any illegality in the order passed by toe learned Addl. District Judge, Farrukhabad. The findings recorded by him are finding of fact which cannot be interfered with in a writ petition.