Reserved
Court No. - 9
Case :- CIVIL REVISION No. - 563 of 2001 Revisionist :- Sri Sarju Saran Rastogi And Others Opposite Party :- Shyam Saran And Others Counsel for Revisionist :- Dhruva Narayana,Anadi Krishna Narayana,Bala Krishna Narayana,Dhruva Narayana,Neeharika Sinha Narayana,S.K.Singh Yadav Counsel for Opposite Party :- S.K. Singh Yadav,G.P. Srivastava,R.R. Shivhare,S.K. Mishra,Sandeep Kumar,Vivek Rastogi
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Anadi Krishna Narayana for the revisionists, Shri S.K. Mishra for the respondents 2 and 3 and Shri Vivek Rastogi, the proposed respondent 1/1 in person.
The instant revision is directed against the order dated 12.09.2001, whereby permission has been granted to the respondents 1 to 3, under Section 18 of the Religious Endowments Act to file a suit under Section 14 of the said Act.
Counsel for the revisionist has submitted that three substitution applications are pending, namely those with regard to revisionist no. 1, respondent no. 1 and respondent no. 4 in this revision. All the applications are belated and are accompanied by applications under Section 5 of the Limitation Act, for condonation of delay.
Counsel appearing for the respondents have not filed any counter affidavit to these substitution applications.
Under the circumstances, the cause shown for the delay in filing the substitution application as regards the revisionist no. 1 and the respondent no. 1 is found to be sufficient. The delay in filing the application, is hereby condoned and abatement of the revision is set aside.
The substitution applications are allowed.
In so far as the respondent no. 4 is concerned, the application for substitution is also belated.
From the perusal of the order sheet of this revision, it transpires that registered notices were sent to the proposed heirs, which have been returned undelivered with the endorsement that the address mentioned in the notice is incomplete.
However, this Court finds that respondent no. 4 has been described as proforma respondent in the memo of revision. It is settled law that there is no abatement on the death of a proforma party.
Under the circumstances, the delay in filing the substitution application is condoned and the substitution application is allowed.
Office is directed to incorporate all the three substitutions before a copy of this order is issued to any of the parties.
On the merits of the revision, the contention of counsel for the revisionist is that prior to filing the application under Section 18 of the Religious Endowments Act, the plaintiffs had filed suit no. 424 of 1990, a suit for permanent injunction. In this suit the plaintiffs claimed to be bhumidhars of the land in suit. In this suit, an application for interim injunction was rejected as was the consequential appeal.
Thereafter, the instant application under Section 18 was filed seeking permission to file a suit under Section 14 of the Religious Endowments Act with regard to the same property claiming that it is trust property. The application therefore, was malafide and has wrongly been allowed by the Court below. The impugned order is therefore, vitiated and deserves to be set aside.
The second contention of counsel for the revisionist is that the opposite parties admit that the trust in question is a private trust. No suit under Section 14 of the Religious Endowments Act can be filed with regard to a private trust. The Court below has failed to advert this aspect of the matter while granting permission to file the suit. The order impugned is therefore, vitiated. No finding has been recorded as to whether the property regarding which permission to sue has been granted, is trust property. In any case, it is not trust property because the revisionists were recorded over the land in suit in proceedings under Section 34 of the U.P. Land Revenue Act. The prima facie satisfaction recorded in the impugned order for granting permission to file the suit is therefore, not justified by the material available on record.
In rebuttal, Shri S.K. Mishra has submitted that the Court while considering an application under Section 18 of the Religious Endowments Act is only required to record its prima facie satisfaction that there exist grounds for institution of a suit under Section 14 of the Act.
He further contends that Section 18 does not contemplate any notice or opportunity of hearing being provided to the defendants or the persons against whom the suit is to be instituted. He has also contended that there is nothing in the Act, which would lead to a conclusion that it draws a distinction between a public or a private trust.
Shri Vivek Rastogi, the respondent no. 1/1 in this revision who has appeared in person has adopted the arguments of Shri S.K. Mishra, counsel for the respondents 2 and 3.
I have considered the submissions made by counsel for the parties and perused the record.
In so far as the first submission that earlier in time, the respondent nos. 1 to 3 had filed a suit for injunction claiming to be the owners of the property in suit, the Court below while granting leave to institute the suit has observed that at least part of the property regarding which the suit is to be filed, is prima facie, property of the trust.
In my considered opinion, while considering an application for leave to institute a suit under Section 14, the Court is only required to see if grounds for institution of such a suit exist. It is not required to enter into a pre trial enquiry to determine as to whether the entire property subject matter of the proposed suit is trust property or not.
Moreover, this question can always be considered in the suit itself, which has been permitted to be instituted because the question necessarily is a question to be decided on the basis of the evidence adduced by the parties. Besides, even the Court below has observed that while dealing with an application under Section 18, there is no requirement of hearing the persons against whom leave to institute a suit is sought.
The contention that the revisionists have been mutated over some of the land in question, in proceedings under Section 34 of the U.P. Land Revenue Act, does not improve the case of the revisionists. The proceedings under Section 34 of the U.P. Land Revenue Act are summary proceedings and orders passed in such summary proceedings are always subject to orders to be passed in regular title proceedings as provided under the U.P. Land Revenue Act itself.
In view of the foregoing discussion, this Court finds that the impugned order does not suffer from any jurisdictional error that would warrant interference.
The revision is therefore, liable to be and is hereby dismissed.
It is however provided that since the suit permitted to be instituted and the earlier suit for injunction filed by the plaintiffs-respondents 1 to 3 in this revision, namely suit no. 424 of 1990 is stated to relate to the same land, it is provided that both the suits be connected and heard together.
Order Date :- 31.8.2018 Mayank Digitally signed by ANJANI KUMAR MISHRA Date: 2018.08.31 13:15:14 IST Reason: Document Owner Location: High Court of Judicature at Allahabad