Pramod Kumar vs Suchit Kumar & Others

Sharad Kumar Sharma, J

This matter was taken up yesterday. Learned counsel for the respondent was present and supported the impugned order under challenge in the present writ petition, i.e. order dated 25.11.2010. In continuity to the yesterday's argument the matter on the request of the counsel was directed to be posted at 2'O Clock on the basis of request of the counsels for the parties. The matter is taken up at 2:00 PM. But none appears for the respondents.

Instead of elaborating on the vitalities of the controversy, which are involved in the present writ petition, certain glaring facts, which are admitted by the parties to the proceedings, which are required to be consider and to be brought on record. The facts are that there was a proceeding instituted by invoking the provisions contained under Section 92 of the Code of Civil Procedure, which was registered as Suit No. 7 of 1974 'Tula Ram & Others vs. Smt. Sundari Devi & Others'. The said Suit when it was instituted at that point of time though is a cause of action, which now falls to be within the territorial domain of Udham Singh Nagar, but at that point of time since it was a combined district, it was filed before District Judge, Nainital, the Suit thus instituted under Section 92 of the Code of Civil Procedure, it was decided by the judgment dated 23.12.1981 by the Court of learned District Judge, Nainital, as it then was, the Court eeehas passed the judgment to the effect that as far as the constitution of the committee is concerned, that would be in terms and the modalities as laid down in the judgment dated 23.12.1981 itself, which is quoted hereunder:

"Sri Triloki Nath, defendant no. 2 is removed from the trusteeship oft the trust. A committee of Management comprising Sarvari Hira Lal plaintiff no. 3, Umesh Chandra plaintiff no. 1/1, Hans Raj plff. No. 2, Sushil Kumar plaintiff no. 4, Padam Kumar plaintiff no. 6/1, Pramod Kumar eldest son of Sri Triloki Nath, defendant no. 2 and Sri Hariom Agarwal husband of Smt. Sundari Devi, defdt. no. 1/1 is hereby constituted for the management of the trust and the trust property in question. In case any member of the managing committee resigns or dies then the remaining members oft the committee of management by a majority vote, can elect any suitable person in his place. The members of the committee of management by a majority vote shall elect from among themselves a Chairman, Secretary, and other office bearers if required. They shall also decide by a majority vote the functions and acts which may be performed by the Chairman, Secretary and other office bearers, if any. The meeting of the committee of management shall be held at least once in a quarter. Till a Chairman is elected by the management committee, Sri Hira Lal, plaintiff no. 3 shall discharge the functions of the Chairman and shall have all the powers to manage the trust and the trust property in question.

Accounts shall be got audited every year from a qualified auditor. The balance Sheet of the income & expenditure of the resident property shall be prepared some daily news paper circulated in Kashipur. An inventory of the property of the trust shall be prepared by the management committee.

The Committee of Management shall deposit the funds in a schedule Bank and the bank account shall be operated jointly by the Chairman and the Secretary.

All residuary powers regarding the management of the trust property in question shall vest in the aforesaid committee of management.

The plaintiffs shall recover their costs of this suit from the defendants."

Meaning thereby, as per the decree rendered by the District Judge, Nainital, the constitution of the committee of management and its configuration was itself provided to be constituted in accordance with the arrangements, which has been made in the judgment dated 23.12.1981.

This judgment of 23.12.1981 as rendered in Suit No. 9 of 1974 was put to challenge in First Appeal No. 28 of 1982 'Sri Triloki Nath (since deceased) & Others vs. Sri Umesh Chandra (since deceased) & Others' before the Allahabad High Court, which was ultimately under the Reorganization Act after being transferred to this Court was renumbered as First Appeal No. 777 of 2001 'Sh. Trilok Nath (since deceased) & Others vs. Umesh Chandra (since deceased) & Others'.

This Court while considering the appeal had dismissed the appeal and had affirmed the judgment of the learned Trial Court dated 23.12.1981, but however there was a slight modification made with regards to the manner in which the committee of management is to be constituted in pursuance to the directions issued by the judgment dated 23.12.1981 and how future changes of its members was to be carried and a slight modification was directed to be carried as per the norms provided in paragraph 20 of the judgment as rendered by the coordinate Bench of this Court on 05.06.2007, which is quoted hereunder:

"20. For the reasons as discussed above, both the appeals are liable to be dismissed. The same are dismissed. However, since during the pendency of these appeals, some of the members of Committee of Management constituted in the decree of the Trial Court, have died, it is directed that the legal heirs of each of the deceased members may nominate one new member. With this modification, the decree passed by the Trial Court is affirmed. Interim order, including appointment of the Official Receiver, if any, stands hereby vacated. No order as to costs."

` It is not in dispute that none of the parties to the present writ petition that as far as the judgment dated 23.12.1981 and the judgment dated 05.06.2007 is concerned, as rendered by the First Appellate Court it has attained finality and it has not been questioned by any party in any manner before the superior court.

Though the intervening period when the judgment dated 23.12.1981 was put to challenge in First Appeal No. 28 of 1982 'Sri Triloki Nath (since deceased) & Others vs. Sri Umesh Chandra (since deceased) & Others' before the Allahabad High Court, district Nainital was bifurcated in the year 1995 and district Udham Singh Nagar was carved out, out of the district Nainital.

Consequently, the jurisdiction of district Judgeship of district Nainital was ultimately vested with the district Judgeship of Udham Singh Nagar in relation to its territorial jurisdiction, falling under district Udham Singh Nagar, which was ultimately created after the bifurcation of district, Nainital. It seems that after the affirmation of the aforesaid judgments, the respondents had moved an application before the District Judge, Nainital in Civil Suit No. 9 of 1974 and by virtue of the said application, which was filed by the respondent on 06.12.2007, the applicant had sought an approval with regards to the constitution of the committee of management as giving therein with the induction of new members, i.e. as many as 13 members to constitute the committee, which was contrary to constitution provided by judgment and decree dated 23.12.1981 and judgment dated 05.06.2007.

By virtue of the application as preferred on 06.12.2007, in fact, the new configuration of the committee of management was sought to be inducted, thereby inducting those members in the committee of management, who were dehors to the procedure of making alterations in the committee of management as provided in the judgment and decree dated 23.12.1981 and also dehors to the provisions of the Appellate Court's judgment as rendered by this Court on 05.06.2007.

The arguments of the learned counsel for the petitioner is two folds:

(i) that no such miscellaneous application would be tenable after the proceedings before the Court below has culminated into the decision/decree rendered by way of a decree dated 23.12.1981 and its subsequent affirmation by the Appellate Court's judgment dated 05.06.2007. As no lis was pending as on 06.12.2007, when the application was filed.

(ii) There is no such provision provided under C.P.C., which is contemplated or attempted to be invoked for the purposes of filing of the application as preferred by the respondent on 06.12.2007.

(iii) Since there was no provision was observed under which the application has been filed before the Court below and too when the application is filed in a decided matter, this Court is of the view that the application would not be maintainable.

(iv) Otherwise also on account of the fact that since in the year 1995 the new district has been carved out and district Udham Singh Nagar has been created, which is now vested with the territorial jurisdiction of the subject matter of the Suit and cause of action falls in its jurisdiction, which was the subject of Suit No. 9 of 1974, no such application could have been entertained by the District Judgeship of Nainital and, hence, on account of these fact also the application itself was not tenable and deserved rejection.

The learned District Judge by the impugned order dated 25.11.2010 and had by exceeding the exercise of his jurisdiction, which has been now otherwise not vested with him under law as it was beyond his territorial competence, has proceeded to pass the impugned order on the application paper no. 3ga on 25.11.2010, whereby, he has proceeded to accord an approval to the committee as reflected to be constituted in the application dated 06.12.2007.

The contention of the petitioner is that reshuffling of the members of the committee of management since it suffers from the violation of judgment/decree dated 23.12.1981, apart from being without competence on account of lack of territorial jurisdiction to entertain such application after the carving of the District Udham Singh Nagar in 1995, which actually is now vested within the jurisdiction to deal with the matters pertaining to the territorial jurisdiction of Udham Singh Nagar.

Consequently, this Court is of the view that the impugned order dated 25.11.2010 suffers from inherent lack of jurisdiction and since it has not been invoked under any specific provision of law, which could not have been made available to the respondent after the decision of the Suit itself has attained finality way back in the year 1981 the impugned order cannot be sustained in the eyes of law and consequently, the same is quashed. The writ petition is allowed.

However, there would be no order as to cost.