Rajiv Budhwar vs Lalit Kumar Budhwar

R.L. Anand, J.—This is a Civil Revision and has been directed against the order dated 5.8.1997, passed by the learned Civil Judge (Sr. Division), Ferozepur, who, dismissed the objections of the petitioner by holding that on 22.9.1983 a permission was granted to the plaintiff to file the suit u/s 92 of the Code of Civil Procedure.

Some facts can be noticed in the following manner. S/Shri Mool Chand Budhwar and Lalit Kumar filed a suit u/s 92 C.P.C. against Shri B.N. Budhwar and Mrs. Shakuntala Budhwar in respect of trust property Sarai Nagar Mal Budhwar situated near Adda Malwa Bus stand bearing Municipal No. ES/23/20, 21, 22 outside Delhi Gate, Ferozepur and the allegations of the plaintiffs were that the property referred to above is a trust property known by the name of Sarai Nagar Mal Budhwar and defendants have committed the breach of the trust and, therefore, they are liable to account for the income of the trust and also some arrangement should be made with regard to the properly.

Notice of the suit was given to the defendants. The suit was contested by inter alia pleading that plaintiffs have no locus standi to file the suit ;that Sarai Nagar Mal is not a public charitable trust but is a private charitable Trust and earlier the property was being managed by Shri R.D. Budhwar and after his death it was being managed by Shri R.N. Budhwar. The prop- erty was never managed by the public. It was also pleaded by the defendants that since the plaintiffs had no longer any interest in the management of the property, therefore, the permission should be granted to them to file a suit u/s 92 of the Code of Civil Procedure. The learned trial Court framed the following issues for the disposal of the suit :-

Whether Sarai Nagar Mal situated in Ferozepur City is a public charitable trust ?

Whether defendant No. 1 has committed breach of trust as stated in para No. 4 of the plaintiff ? OPP

Relief.

The parties were given the opportunities to lead evidence and on the conclusion of the proceedings, vide judgment dated 6.9.1985, the Court of Senior Sub Judge, Ferozepur, decreed the suit against the defendants and defendants were removed from the trustees of Sarai Nagar Mal and it was ordered that Shri Mool Chand Budhwar and other trustees shall manage the affairs of the Sarai Nagar Mal and the defendants were given two months time to hand over the possession of the Sarai/disputed property to the plaintiffs and the defendants were further directed to render the accounts failing which the possession could be taken in the execution proceedings. It was also ordered by the trial Court vide order dated 6.9.1985 that the plaintiffs can submit as application for the appointment of permanent trustees and the same would be done during the execution proceedings after inviting objections if any. It was further ordered that plaintiffs shall submit a draft scheme for the approval of the Court for the management of the Sarai property.

On the basis of the order dated 6.9.1985 the decree was formulated. The defendants filed the appeal before the Court of Additional District Judge, Ferozepur and during the appeal a compromise took place and the order of the appellate Court can be reproduced in the following manner :-

"When this case came up for hearing today, the 11th day of December, 1985, Sh. Mool Chand respondent and counsel for the parties made their statements to the effect that the parties have compromised. Sh. R.N. Budhwar will render true accounts regarding the property in dispute in the trial Court w.e.f 4.4.1972 before 30.4.86 and the trial Court shall ascertain that the accounts rendered are correct and in case it comes to the conclusion that the appellant has not rendered the true accounts and that the appellant has misappropriated any amount, the appeal shall stand dismissed and the decree of the trial Court be affirmed but in case the accounts are found correct, the suit of the plaintiff shall be deemed as dismissed.

In view of the statements of Sh. Mool Chand, respondent and counsel for the parties the appellant Sh. R.N. Budhwar will render the true accounts regarding the property in dispute in the trial Court w.e.f. 4.4.72 till 31.3.86 on or before 30.4.86 and the trial Court shall ascertain that the accounts rendered are correct and in that case, the suit filed by the respondents shall be deemed as dismissed, but in case the accounts rendered by the appellant are found to have misappropriated any amount, in that eventuality the decree awarded by the trial Court shall be affirmed and the appeal shall stand dismissed. The parties shall, however, be at liberty to present their case regarding the rendering of the accounts before the trial Court. The parties are left to bear their own costs throughout and the respondents shall not interfere in the working of the appellant regarding the management of the property in dispute till that time as the trial Court shall deem fit and or direct otherwise. The parties shall be found by their statements. The appeal is disposed of accordingly. File be consigned to the record room".

Thereafter, one more application was moved u/s 151 C.P.C. before the trial Court and in this application again notice was given to the opposite party and two following issues were framed for the disposal of the said application :-

Whether the accounts submitted by R.N. Budhwar are correct ? OPP

If issue No. 1 is proved, whether R.N. Budhwar has misappropriated the trust money and is guilty of breach of trust ? If so, its effect ? OPA

Relief.

In pursuance of these issues it was observed that the account which was rendered by Shri R.N. Budhwar are not correct.

Thereafter, the execution application was filed and the objections were raised by the present petitioner and the preliminary objections taken up by the petitioner-JD before the Executing Court was that since the.per-mission u/s 92 of the CPC was not granted to the plaintiff-DH, therefore, the entire decree passed by the trial Court as well as the first appellate and all proceedings are nullity, bad and on the basis of these types of orders no directions could be given to the J.D.

Notice of the objections were given to the respon-dent-DH who filed the reply and denied the allegations and stand taken up by the respondent was that vide interim order dated 22.9.1983 permission was granted to the plaintiff to file the suit u/s 92 of the CPC and moreover, the executing Court can not go behind the decree and that the present objector at this stage cannot take the objection that the permission was not granted to the plaintiff to file the suit u/s 92 of the Code of Civil Procedure.

Again the executing Court disposed of the controversy vide impugned order dated 5.8.1997 and the operative portion of the impugned order can be reproduced which is contained in paras 3,4 and 5 :-

"On a perusal of the file of C.S. No. 58-A of 5.8.83, titled as Moot Chand v. R.N. Budhwar, it is found that along with the filing of the suit on 4.3.83, application seeking the leave of the Court to file the suit u/s 92 C.P.C. was also filed on 5.3.83 and the chronology of the order sheet of the file goes to show that defendant No. I R.N. Budhwar appeared through counsel on 9.6.83 and the case was adjourned to 10.8.83 for the service of defendant No. 2. On 10.8.83, defendant No. 2 was proceeded against ex parte and the proceedings were adjourned to 24.8.83 for filing written statement. Written statement was ultimately filed on 6.9.83 and the case was adjourned to 20.9.83 for filing replication and the settlement of issues but on the request of the counsel for the plaintiff, the proceedings were also adjourned to 20.9.83 for filing the reply to the application seeking permission of the Court to file the suit and on 20.9.83 the reply was filed and the proceedings were adjourned to 22.9.83 for arguments on the application. Thereafter, the file contains he order sheet dated 7.10.83 vide which the issues were framed. It has already been reported by the Ahlmad of this Court on 29.3.97 that the file does not contain the order dated 22.9.83 and that in the register of the Civil Suits No. 1, there is an entry effected regarding the order dated 22.9.83. It is not alleged by the objector that on 22.9.83 no arguments on the application moved by the plaintiff u/s 92 CPC had been heard by the Court and that no order was pronounced. To the contrary, as has been taken up a plea against the record alleging that no application u/s 92 C.P.C. seeking leave to institute the suit had been filed. The file of the court suit contains the reply filed by the defendant No. 1 through his counsel on 20.9.83. Had the Court not granted the permission to institute the suit u/s 92 CPC there was no occasion and the opportunity for the Court to frame the issues on 7.10.1983. The file also contains the replication to have been filed by the plaintiff on 29.9.83 and it only goes to show that the replication had been filed after the passing of the order on 22.9.83 granting the permission to the plaintiff to institute the suit u/s 92 C.P.C. The entry effected in the register of Civil Suit by the Ahlmad is also a valuable record maintained by the Court. It was only because the Court had granted the permission to the plaintiff to institute the suit u/s 93 C.P.C. that the Ahlmad effected the entry in this regard in a register also incorporating the contents of the relief claimed in the suit as is usually effected and in the register of the civil suit the Ahlmad also changed the number of the suit from 58-1/5.3.83 to 58-1/A of 5.3.83 although the date in the case of 58-1/A should have been the date of the order i.e. 22.9.83.

As regards the contention raised by the learned counsel for the objector that in the judgment dated 6.9.85 passed in Civil Suit No. 58-A of 1983 by the Court of Shri O.P.Goel, there is no discussion made to the plea taken up by the defendant that there was no question for granting relief to the plaintiff for filing the suit, it may be noted that had the permission not been granted, the defendant would have claimed an issue with regard to the maintainability of the suit. Since the permission had already been granted vide order dated 22.9.83, the panics did not claim the issue on that point and, therefore, there was no occasion for the court to discuss the same in the judgment. Similarly, it can be said with regard to the judgment passed in appeal, I, therefore, find that an order had been passed by the Court on 2.9.83 granting the permission to the plaintiff of CS No. 58-1 of 5.3.83 u/s 92 C.P.C.

Before proceeding further to dispose of the objections, the matter may be brought to the notice of the Hon''ble Punjab and Haryana High Court as required under para V Chapter 19-A of the High Court Rules and orders with regard to the loss of order sheet containing the order dated 22.9.83 and 29.9.83 so that the record may be reconstructed. The proceedings are adjourned to 16.9.97 for the consideration of the objections."

Not satisfied with the order dated 5.8.1997 the present revision has been filed.

I have heard Shri Raji''ve Bhalla, learned counsel appearing on behalf of the respondent and with their assistance have gone through the record of the case.

Vehemently it was argued on behalf of the learned counsel for the petitioner that since the permission u/s 92 C.P.C. was not granted to the respondent al the time of the filing of the suitor at the subsequent stage, therefore, the decree which has been passed by the Court of Senior Sub Judge or affirmed by the first appellate Court or the subsequent orders passed in the application u/s 151 C.P.C. are totally bad in the eye of law. The learned counsel for the petitioner also submitted that the case was remanded to the trial Court vide order dated 11.12.1985 and the trial Court has not given the finding on issue No. 2 and therefore, the order dated 19.7.1990 cannot be acted upon.

On the contrary, learned counsel for the respondent has reiterated his argument by adopting the reasons advanced by the executing Court.

I have considered the rival contentions of the learned counsel for the parties and in my opinion, this revision is without any merit and it must fail.

There is no dispute with the preposition of law that in a suit filed u/s 92 of the CPC a prior permission is required as envisaged in those very provisions but in the present case, it appears that the judgment-debtor wants to take the advantage of the''non-availability of the original order dated 22.9.1983 which, in my opinion, was definitely passed by the trial Court and then the trial Court thought it proper to proceed with the suit. This observation ofmine is clear from the judgment and decree of the trial Court itself. The reading of the same would show that only two issues were framed in that Court at the trial stage. Had the permission not been granted to the plaintiff to file the suit u/s 92 of the Code of Civil Procedure, the defendant would have agitated it before the trial Court to frame the specific issue in this regard by making an application under Order 14 Rule 5 C.P.C. No effort has been made by the petitioners who are the legal representatives of the defendant to the effect that no permission has been granted.

We all know that when the suits are instituted in the Court and Civil Register is supposed to be maintained by each and every law Court. This suit was entered in the Civil Register as Suit No. 58-1/5.3.1983. rhen its number was changed to suit No. 58-l/A/5.3.83. There is a note in the margin of this register which clearly indicates as follows :

"The application for permission to institute and pursue the suit against the defendant is allowed. The application be now registered as a suit, order on 22.9.83."

The learned counsel for the petitioner is highly critical with regard to the above entry and submits that this entry has been fabricated in the Civil Register at the behest of the plaintiff. He submitted that when the first appeal was filed in the first appellate Court, he took a specific objection in the grounds of appeal as objection No. 5-A by agitating that the plaintiff did not get the permission u/s 92 C.P.C. during the pendency of the suit and, therefore, this suit is liable to be dismissed on this short ground. It was further submitted by the counsel for the petitioner that there is a interpolation in the Civil Register, therefore, much importance cannot be given to it.

The argument of the learned counsel for the peti-tiojier may took alluring at the first instance but on deeper scrutiny, it is without any force. The Civil Register maintained by the law Courts is a register maintained under the directions of the High Court. This Register incorporates day to day proceedings and also all important interim orders including the final orders. These Civil Registers are checked out only by the Presiding ''Officer but also supposed to be checked at the time of the annual inspection by the Hon''ble Judge. At no point of time,no hue and cry was raised by the petitioner either before the Presiding Officer or before the Inspecting Judge that any wrong has been committed with this register. The presumption of correctness has to be attached with the register which prima facie indicates that order dated 22.9.1983 was passed and the plaintiff was given the permission to file the suit u/s 92 of the Code of Civil Procedure. If the appellant was very serious with regard to his objection that the suit was not properly instituted, there was no necessity on his part to enter into any compromise before the first appellate Court. Since he has entered into compromise, therefore, defendant-petitioner is estopped by his own act and conduct to raise any plea with regard to the passingof the order dated 22.9.1983. Since the permission was granted and the defendants are supposed to account for the income of the Trust, which they have not done, therefore, I do not see any wrong with the impugned order. Affirming the im- pugned order, I dismiss this revision with no order as to costs.

Before I part with this order, I give directions to the learned District & Sessions Judge Ferozepur to hold a fad finding inquiry under what circumstances the order dated 22.9.1983 is missing from the judicial record and he should take all necessary steps tor the reconstruction of the file.

The parties through their counsel are directed to appeal before the trial Court on 16.7.2001.

Revision dismissed.