Heard Shri Shashi Nandan, learned Senior Counsel assisted by Shri Vashistha Tiwari and Shri Shivam Yadav, learned counsel for the petitioners; Shri M.D. Singh Sekhar, learned Senior Counsel assisted by Shri Ashok Kumar Dwivedi for respondent no.1 and Shri P.N. Saxena, learned Senior Counsel assisted by Shri H.N. Pandey, learned counsel for respondent no.2. None appears for respondent nos.3 to 7.
As the issue involved in the present writ petition is a matter of contest between the petitioners and respondent no.1, therefore, non-appearance of other respondents although one of them respondent no.2 is represented is not legally significant, as such notices to other respondents are hereby dispensed with.
This writ petition involves an important question of law as to the extent of enquiry in a matter involving the scope of Order 22 Rule 10 CPC and for this purpose arguments were heard at length so as to thrash out the issue and incidental issues, which relate to the management of a religious charitable society registered under the Societies Registration Act, 1860.
The factual matrix of the case in short is that a suit for permanent injunction was filed by the society known as Sri Girraj Sewak Samiti, Bara Bazar Goverdhan, Tehsil and District Mathura through its Mantri/ Pradhan Mantri Govind Prasad Purohit in the year 1999 against the respondent nos.2 to 7. During the pendency of civil suit, the original representative of the society viz. Govind Prasad Purohit died on 28.11.2006 and thereafter an application under Order 22 Rule 10 CPC was filed by one Shri Jitendra Prasad Purohit, which was allowed by the trial court on 31.5.2007 on the premise that Shri Jitendra Prasad Purohit on the basis of resolution dated 29.12.2006 was elected as Mantri/ Pradhan Mantri of Sri Girraj Sewak Samiti, Bara Bazar Goverdhan, Tehsil, District Mathura. The suit continued to be pursued on behalf of the Samiti by Jitendra Prasad Purohit until the month of November, 2009, when another application under Order 22 Rule 10 CPC came to be filed by one Rama Kant Kaushik, who claimed to have been elected as Mantri/ Pradhan Mantri of the society on the basis of resolution dated 4.10.2009 replacing the outgoing Secretary Jitendra Prasad Purohit. The copy of the application is placed on record as Annexure No.4 to the writ petition.
The plain averments made in the application are to the effect that the petitioner's predecessor Shri Jitendra Prasad Purohit, who on being elected on 29.12.2006 as Mantri/ Pradhan Mantri came to represent the suit proceedings on the basis of an order passed by the trial court on 31st May, 2007. It was further stated in the application that the petitioner was elected as Mantri/ Pradhan Mantri on 4.10.2009 in the resolution passed by the Executive Body of the Samiti, as such, the petitioner had a legal right to represent on behalf of the society in the ongoing suit proceedings.
The application filed by the petitioner (Rama Kant Kaushik) was opposed by the respondent no.1-Shri Jitendra Purohit, the outgoing Mantri/ Pradhan Mantri. The copy of objections filed by respondent no.1 is also placed on record as Annexure No.6 to the writ petition. From the perusal of the objections it is gathered that two main objections were raised by respondent no.1. Firstly the convening of meeting on 4.10.2009 was disputed on the ground that the said meeting was not at all held on the said date and secondly the petitioner (Rama Kant Kaushik) was alleged to have been ousted from the Executive Body of the Samiti on 15.2.2009 and thereafter new elections were said to have taken place on 25th February, 2009, wherein the members of the Executive Body were elected, who subsequently constituted the Management Committee on 31st March, 2009. Both the person on the basis of being elected as Secretary claimed devolution of interest upon them exclusive of each other.
The trial court went into the contentions of rival parties and has recorded detailed findings not only on the passing of resolution dated 4.10.2009 but has also recorded findings as to the correctness of defence putforth by respondent no.1 regarding the ouster of petitioner (Rama Kant Kaushik) from the membership of the Executive Body of the Samiti. The trial court in its judgment found that the petitioner on the basis of resolution dated 4.10.2009 had a legal right to represent the Samiti, therefore, the application filed by the petitioner was allowed by means of order dated 4.3.2010. The opposite party no.1 on feeling aggrieved against the order passed by the trial court filed Civil Revision No.40 of 2010 assailing the findings and the judgment passed by the trial court as mentioned above. The judgment passed by the trial court was assailed under Section 115 of the Code of Civil Procedure and the revision on being allowed by means of the impugned order has given rise to the present writ petition. Section 115 CPC is reproduced below:-
"115. Revision.- (1) The High Court may call for the record of any case which has been decide by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:--
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.
(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation .- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a Suit or other proceeding."
In view of Section 115 of the Code of Civil Procedure, learned counsel for the petitioner while assailing the impugned judgment passed by the revisional court argued that the judgment passed by the trial court was fully in consonance with law and ought not to have been interfered with by the revisional court. The revisional court judgment is attacked primarily on the ground that the court below has not appreciated the findings recorded by the trial court and none of the findings recorded by the trial court on being found faulty have been set aside and that being the position, the revisional court was clearly in error to have remanded the matter back to the trial court for fresh enquiry on the issue within the scope of Order 22 Rule 10 CPC, which by its very nature is a summary proceeding. Order 22 Rule 10 CPC for ready reference is reproduced hereunder:-
"10. Procedure in case of assignment before final order in suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a Suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
In the light of provisions of Order 22 Rule 10 CPC, learned counsel for the petitioner has laid emphasis on the trial court judgment to show that the trial court while allowing the application has duly considered the material placed on record i.e. agenda, list of members, who participated to elect Rama Kant Kaushik as Mantri/ Pradhan Mantri of the Samiti and the resolution dated 4.10.2009 on this premise according to the learned counsel stands in consonance with law. Learned counsel further submits that the convening of meeting on 4.10.2009 was sought to be disbelieved merely on the ground that the petitioner (Rama Kant Kaushik) was ousted from the membership of executive body of the Samiti but there was no evidence placed on record to the effect that he was ousted from the membership of the executive body. The trial court has also recorded that no other member of the society has come forward to file any affidavit or evidence on the basis of which the convening of meeting on 4.10.2009 may be disbelieved. The trial court in absence of any dispute to the documents placed on record allowed the application.
Whether the trial court for allowing the application under Order 22 Rule 10 CPC was duty bound to record evidence on the issue of devolution in interest or it was enough for the Court to follow a summary procedure while deciding the application is the question that calls for an answer in these proceedings?
In support of his contentions, learned counsel for the petitioners has cited the decision of Bombay High Court in Jawahar Lal v. Smt. Saraswatibai Babulal Joshi & Ors., AIR 1987 Bombay 276 as well as the decision passed by this Court in Ram Kumar & Anr. v. Union of India, 1976 (2) ALR 758. While inviting attention of the Court to Paragraph 5 and 6 of Bombay High Court judgment, learned counsel for the petitioner states that Order 22 Rule 10 CPC is different from the category of cases, which fall under Order 22 Rule 1 to 9 CPC. Paragraph 12 of the judgment reported in AIR 1987 Bombay 276 is reproduced below:-
"12. Having regard to the provisions of O.22, R.10, Civil P.C. and the authorities to which I have referred, it is apparent that no detailed enquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution and the question about the existence and validity of the assignment or devolution can be considered at the trial of the suit on merits. this being the legal position the order passed by the learned trial Judge was correct and no interference with the discretion exercised by him is called for."
The same position of law is reiterated in the judgment passed by this Court reported in 1976 (2) ALR 758.
On the other hand learned counsel for respondent no.1 argued that the manner in which the trial court formed its opinion was faulty as the original record was not placed before the trial court and the proceedings were also conducted in a hasty manner.
The revisional court while deciding the revision according to learned counsel appearing for respondent no.1 has proceeded on the premise that the learned trial court had not only committed material irregularity as to the enquiry, which was necessary for deciding the application but had exceeded in its jurisdiction by rerecording the findings on the basis of documents of which the original copies were not placed on record.
In support of his contention learned counsel for respondent no.1 has referred to the judgments in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 (para 29 & 30); Thiruvengada Pilla v. Navaneethammal & Anr., JT 2008 (2) SC 585 (para 14 & 15)=(2008) 4 SCC 530 and Ajay Kumar Parmar v. State of Rajasthan, JT 2012 (10) SC 503.
On the strength of aforesaid judgments it is canvassed by learned counsel that the signatures of documentary evidence placed on record could not be compared without seeking expert opinion and Section 73 of the Evidence Act did not enable the trial court to record a finding on the basis of mere comparison of the signatures on the documents, originals whereof were not produced before the court below. This, according to learned counsel for respondent no.1, is a material irregularity, which the trial court has committed while allowing the application. Learned counsel for respondent no.1 has also argued that despite there being an application filed by the respondent no.1 to call for oral evidence, the trial court proceeded in a hasty manner and decided the application on the same date, when the application for transfer was rejected by the learned District Judge. Rendering a detailed judgment on the same very day according to learned counsel shows that the trial court had predetermined the issue, which clearly amounts to a material irregularity in the process of adjudication.
Now coming to the scope of writ petition under Art.226 of the Constitution of India as directed against the order passed by the revisional court, I am of the considered opinion that the revisional court ought not to have interfered with the matter on the mere ground that the trial court did not undertake an exercise of recording oral evidence or did not enter into a critical analysis of the documentary evidence. The proceedings in respect of application under Order 22 Rule 10 CPC are summary in nature and the trial court while adjudicating upon the same has clearly recorded that no other person except respondent no.1 has raised any dispute before the trial court and that finding of the trial court has not been found faulty on the strength of any material whatsoever by the revisional court, therefore, the revisional court while passing the impugned order has clearly exceeded the jurisdiction conferred under Section 115 of the Code of Civil Procedure.
The other grounds raised by learned counsel for respondent no.1 before the revisional court to the effect that the trial court proceeded in a hasty manner and did not dispose of the application for allowing evidences to be led is also devoid of merit inasmuch as no such evidence was actually led before the trial court or is required to be examined after recording of oral evidence etc. This Court is of the opinion that the trial court order allowing the application of Rama Kant Kaushik not being a conclusive judgment as to the rights of parties would not preclude respondent no.1 to participate in suit proceedings, once such a right is declared or based on the requirements under Section 25 of the Societies Registration Act, 1860 is laid as per the procedure prescribed under law. The trial court while adjudicating upon the issue of rival succession/devolution in interest, being bound to frame an inclusive issue is at liberty to transpose any of the contesting parties to be the plaintiff, but such a right of succession/devolution in interest, needless to say, is bound to be declared in accordance with the provisions of Societies Registration Act, 1860 and the byelaws of the society, which regulate the term of management and conduct of other affairs of the society and to which a registered society owes its existence as a juristic person.
The writ petition filed by the petitioner against the revisional court order dated 14.08.2014 is hereby allowed and the impugned order is set aside.
No order as to costs.
Order Date :-09.12.2014 SP/ (Attau Rahman Masoodi,J.)