MAHESH CHANDRA SWAMI Vs. BHAGWATI SWAMI

JUDGEMENT

(1.) THE present writ petition has been filed by the petitioner -defendant, challenging the order dt. 26.10.2013 passed by the Additional Civil Judge (Sr. Division) & Additional Chief Metropolitan Magistrate No. 6, Jaipur Metropolitan (hereinafter referred to as "the trial Court") in Civil Suit No. 13/2003 (102/1997), whereby the trial Court has allowed the application filed by the respondents -applicants for substituting them as the legal representatives of the original -plaintiff under Order XXII Rule 3. In the instant case, it appears that the original -plaintiff Shri Dinesh Chandra Swami had filed the suit seeking permanent and mandatory injunction against the original -defendant Shri Mahesh Chandra Swami in the year 1997, alleging inter alia that there were residential houses and shops in the campus of the temple named Madho Bihari Ji located at Station Road, established by Maji Sahiba Tanwarji from her personal income, and after her death her son late Maharaja Sawai Mansingh had gifted the entire property to their ancestor Shri Totaram Ji. It was further alleged that after the death of Shri Totaram Ji on 31.12.1949, the property was inherited by his sons, and that Shri Prakash Chandra Swami being the eldest son had become the 'karta' of the said HUF. After the death of the said Prakash Chandra Swami, his brother Shri Harish Chandra Swami, was the sole survivor of the 'karta khandan' of the HUF, however Shri Harish Chandra Swami was not permitted by the original -defendant Shri Mahesh Chandra Swami to take over the accounts of the income of temple. It was further alleged that for the better management of the properties of the HUF, a committee was constituted on 13.12.1997, by the Members of the joint family which decided to take action against the original -defendant Shri Mahesh Chandra and the said committee authorized the original -plaintiff to take legal action against the defendant. The original -plaintiff Shri Dinesh Chandra Swami, therefore, had filed the suit. It appears that during the pendency of the suit, the sole plaintiff Shri Dinesh Chandra Swami expired on 09.09.2009, and therefore the respondents being the legal heirs of the original -plaintiff filed the application under Order XXII Rule 3 read with Order VI Rule 17 of C.P.C. for substituting them in place of the original -plaintiff. The said application was resisted by the petitioner -defendant contending inter alia that the suit was not filed by the original -plaintiff in his personal capacity but was filed in the representative capacity, and therefore, no right to sue survived in favour of the respondents -applicants. The trial Court allowed the said application of the respondents -applicants vide the impugned order, against which the present petition has been filed.

(2.) TAKING the Court to the averments made in the plaint, learned Senior Counsel Mr. R.P. Singh for the petitioner submitted that the original -plaintiff was authorized by the so -called management committee to file the suit, and therefore, the said suit should have been treated as the one filed under Order I Rule 8 of CPC. Learned senior counsel relying upon the decision of the Punjab & Haryana High Court in case of Gurmail Singh vs. Rakesh Kumar, : 2013 (1) CCC 358(P & H), and in case of Mathevan Pillai Vanniaperumal Pillai versus Muthia Pillai Sivasubramonia Pillai and others, AIR 1952 Travancore -Cochin 323, submitted that the averments and allegations made in the plaint should be read to decide, whether the suit was filed by the plaintiff in his personal capacity or in the representative capacity. He also submitted that during the course of proceedings, the temple trust was also treated as the public trust in view of the decision of the High Court, and therefore, also the respondents -applicants did not have any right to proceed further with the suit. Having regard to the submissions made by the learned counsel for the petitioner, and to the impugned order passed by the trial Court, as also the averments made in the plaint, it appears that the original -plaintiff Dinesh Chandra Swami had not sought any permission from the trial Court to file the suit in representative capacity under Order I Rule 8, nor the Court had granted any such permission. Though, it has been stated in para 8 of the plaint that the committee constituted by the Members of the joint family had decided in the meeting of 13.12.1997 to authorize the plaintiff to file the legal proceedings against the defendant, from the said averment alone, it could not be said that the suit was filed in the representative capacity under Order I Rule 8 of CPC. It is needless to say that the suit could be treated as the one filed under Order I Rule 8, only if the concerned plaintiff had sought necessary permission and the Court had granted such permission after following the procedure under Order I Rule 8. Admittedly, no such procedure has been followed nor any such permission has been granted by the Court permitting the plaintiff to file the suit in representative capacity. The Court therefore does not find any illegality or infirmity in the impugned order passed by the trial Court. The decisions relied upon by the learned counsel for the petitioner has no relevance to the facts of the present case. In that view of the matter, the petition being devoid of merits, is dismissed.