Sri Ram Ballabh Sharma and Others vs Mandir Shree Radhakrishna Ji Majaraj

B. K. Rathi, J.—This is a revision under Section 115 CPC against the order dated 3012001 passed by the VIHth Additional District Judge, Moradabad in Misc. Case No. 155 of 1988.

The facts giving rise to the revision are as follows:

Suit No. 441 of 1982 was filed by respondent No. 1 through Mutwalli Narendra Kumar alias Narendra Kumar Trivedi alias Shiv Om against 28 persons. The relief sought in the suit is for declaration regarding his right of the Mutwalli of the trust property. The relief of injunction was also sought. Some of the defendants filed written statements denying that Sri Narendra Kumar Trivedi is the Mutwalli. During the pendency of the suit a Misc. Case No. 155 of 1988 under Section 276 of the Indian Succession Act was also filed by Sri Narendra Ivjmar Trivedi in the Court of the District Judge, Moradabad. It was alleged that Sri Narendra Kumar Trivedi was adopted by late Pt. Hari Kishan, and he requested for issue probate in his favour for the properties mentioned in the petition on the basis of the Will dated 261972 of Pt Hari Kishan. Both these probate application and the suit were for the same properties, therefore, both the suits were consolidated and Misc. Case No. 155 of 1988 was made, the leading case. Against the order of consolidation of the suits. Writ Petition No. 6147 of 1991 was filed before this Court, which was decided on 3171998. The order of the consolidation of the suits was upheld, but the order was modified only to the extent that Suit No.441 of 1982 shall remain the leading case. After the decision of the writ petition the matter was taken up by the Additional District Judge, Moradabad on 29101999. He ordered that several dates have been fixed for evidence of the defendants, but they are not producing any evidence, therefore, the opportunity of the defendants, the present revisionists, to produce the evidence was closed and the case was fixed for arguments on 5111999. The aforesaid order is Annexure7 to the petition. After this order, the revisionists, who were defendants in the suit, moved an application for permission to produce evidence on 25112000 alleging that the dates were not informed by the Counsel and, therefore, the evidence could not be produced. It was further pleaded that the defendants will suffer irreparable loss if they are not permitted to produce the evidence. The said application has been rejected by the learned VIIIth Additional District Judge, Moradabad by the impugned order dated 3012001, Against that order, the present revision has been filed.

I have heard Sri Rajesh Tandon, Senior Advocate for the revisionists and Sri H.N. Sharrna, learned Counsel for the respondents and have perused the record.

On behalf of the petitioners, it has been argued that the petitioners will suffer irreparable loss if they are not permitted to produce the evidence. It is further contended that refusal to provide opportunity to produce evidence will cause prejudice to them and will result in gross injustice and an opportunity be given to them to produce evidence.'' As against this, the learned Counsel for the respondents have taken me through the orders dated 25102000 and the impugned order dated 3012000 and the order of the Hon''ble Mr. Justice Alok Chakraborty in Writ Petition No. 6147 of 1991. It is contended that the revisionists had knowledge regarding the order, dated 31 71998 passed in writ petition. That the order of the learned Additional District Judge, Moradabad show that the Counsel for the revisionists was informed of the dates. That the information to the Counsel was sufficient and there was no necessity of sending separate information to the parties.

It has been further argued that more than sufficient time has already been granted to the revisionists to produce the evidence. That the cases are very old. That, therefore, the revision is without merit and there is no ground to interfere in the order of the trial Court.

6.1 have considered the arguments of the learned Counsel and have also gone through the record and various orders. The suit as well as Misc. Case are very old. The suit was filed in the year 1982 and the Misc. Case in the year 1988. It has also been argued that Counsel for the revisionists were given information regarding the date which was sufficient and no notice was required to be sent to the revisionists.

However, it has been argued by learned Counsel for revisionists that the suit is still pending and has not yet been decided. Therefore, no prejudice will be caused to the opposite parties, if opportunity to produce evidence is provided to the revisionists. Unless the opportunity of evidence is provided to the revisionists justice cannot be done to them. Interest of justice require that the revisionists be provided opportunity to produce evidence. The rejection of the request to provide opportunity will entail in gross injustice, which should be avoided on technical grounds.

Therefore, the request of the revisionists appear to be proper to me. The other reason forcing me to take this view is that the dispute is regarding the trust property belonging to the temple. It is neither a personal property of any of the revisionists nor of the opposite parties. Sri Narendra Kumar Trivedi has claimed himself to be Mutwalli of the temple and not the owner. The revisionists claim the right of the management of the same. If proper evidence is not adduced and case is not decided on merits, the trust property is likely to be misappropriated. No doubt it do appear that there are latches on the part of the revisionists in producing the evidence. However, the reason for the same is apparent and is that personal interest of none of the parties is involved in the matter and this litigation is secondary for them. It appears that the revisionists nave not taken this litigation seriously as their personal property is not as stake. In such a case where property is of the temple the interest of justice require that opportunity to produce evidence should be allowed.

In the light of the above discussion, I think it proper to allow the revision.

The revision is accordingly allowed and the impugned orders of the learned VIIIth Additional District Judge, Moradabad dated 29102000 and 3012001 are quashed. The learned Additional District Judge, before whom the case is pending will provide proper opportunity to defendantsrevisionists to produce the evidence and then shall proceed with the case in accordance with law. The parties are directed to bear their own costs.

Revision allowed.