Vinod Kumar Upadhyay vs Hari Eye Hospital Trust Hathras ...
2017 Latest Caselaw 7932 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- FIRST APPEAL No. - 383 of 2010
 

 
Appellant :- Vinod Kumar Upadhyay
 
Respondent :- Hari Eye Hospital Trust Hathras And Others
 
Counsel for Appellant :- Panakj Kumar Shukla
 
Counsel for Respondent :- Arvind Kumar Tiwari,Pradeep Kumar Singh
 

 
Hon'ble Arun Tandon,J.

Hon'ble Rajiv Joshi,J.

Heard Shri Punit Kumar Gupta, learned counsel for the appellant, Shri Madhu Shankar Agarwal, respondent no.2 appearing in person and Shri Arvind Kumar Tiwari, Advocate on behalf of respondent no. 5.

Vinod Kumar Upadhyay, who claims to be the Secretary of the Hari Eye Hospital Trust, Hathras (herein after referred to as the 'Trust'), has filed this appeal on behalf of the Trust against the order dated 02.11.2017 passed by the District Judge, Hathras in Misc. Civil Case No. NIL/2017 and Execution No. NIL of 2017 arising out of the order and decree dated 31.05.2010 passed in Original Case No. 1 of 2006 (Hari Eye Hospital Trust, Hathras and others v. Om sharma and another).

The plaintiff-respondents instituted Original Suit No. 1 of 2006 under Section 92 of C.P.C., in respect of the Trust. The aforesaid suit has been decreed vide judgment and decree dated 31.05.2010. The appellant-defendant has challenged the said judgment and decree by means of this appeal. A Division Bench of this Court passed following interim order on 10.06.2010 :--

?Admit.

Issue notice for which steps to be taken.

Let counter affidavit be filed within six weeks to which rejoinder affidavit, if any, be filed within four weeks.

List in the 1st week of September, 2010.

Until further orders of the Court, effect and operation of the impugned judgment and decree dated 31.05.2010, passed by the district judge, Hathras in Original Suit No. 1 of 2006, Hari Eye Hospital Trust, Hathras and others v. Om Sharma and another shall remain stayed and the recognized office bearers of the duly constituted Society shall manage the affairs of the Trust during pendency of the First Appeal.?

This first appeal was dismissed for want of prosecution on 05.01.2017. The appellant moved an application for restoration. The first appeal was restored on 18.05.2017. The first appeal was again dismissed for want of prosecution on 03.07.2017. Again on an application being moved by the appellant, tit was again restored vide order dated 05.09.2017 with following observations :--

?Civil Misc. Restoration Application No. 255907 of 2017.?

This application has been filed for recalling the order dated 3 July 2017 by which the appeal has been dismissed in default.

We have heard learned counsel for the applicant-appellant and the learned counsel appearing for the respondents.

In view of the averments made in the affidavit filed in support of the application, the application is allowed, the order dated 3 July, 2017 is recalled and the appeal is restored to its original number.?

It appears that once the first appeal was dismissed in default, the plaintiff-respondents instituted the execution case and certain orders/directions were issued by the Lower Court therein.

Before the Executing Court two applications were filed, one by the plaintiff-appellant being application dated 17.01.2017 registered as paper no. 3-C for compliance of the directions contained in the judgement/decree dated 31.05.2010 and for directions in that regard being issued to the District Magistrate.

On behalf of the defendant to the suit, the appellant before us, the other application was filed on 21.09.2017 being paper no. 17-C informing the Executing Court that the appeal has been restored under order dated 03.01.2017 as a result whereof the interim order granted stood restored automatically. It was, therefore, prayed that all such orders which were made in between in the by the executing court must be kept in abeyance and the District Magistrate be relieved of the charge of the Trust. Another application for the same purpose, paper no. 26-C was also filed by the appellant. These applications came to be decided under order dated 01.11.2017 by the District Judge, Hathras. Both the applications made by the defendant-appellant being paper no. 17-C and 26-C were rejected. The execution case was directed to proceed and for the purpose 24.1.2017 was fixed as the next date.

Against the said order dated 01.11.2017 the defendant-appellant filed a writ petition under Article 227 of the Constitution of India being Writ Petition No. 7897 of 2017 (Vinod Kumar Upadhyaya vs. Hari Eye Hospital Trust & 4 Others). The writ petition has been dismissed vide judgment and order dated 04.12.2017 with liberty to the defendant-appellant to make an appropriate application in the pending first appeal no. 383 of 2010 (present appeal) for such protection as may be necessary.

We may record that till date no such application has been made on behalf of the defendant-appellant in the present appeal. However his interim stay application has been listed before us for final disposal.

The interim stay application is opposed by respondent no. 2 who appears in person.

In order to decide the interim stay application, we would have normally entered into the following issues :

(a) prima facie case in favour of the person seeking the interim order, if any.

(b) balance of convenience in favour of the applicant.

( c) irreparable loss and injury, if any, because of non-grant of interim order to the applicant.

It has been insisted upon us that we may not enter into any of the aforesaid aspect of the matter as it may adversely reflect upon the merit of this appeal and it would be appropriate that the appeal itself may be heard and finally decided so that the rights of the parties may crystallise.

However what is writ large on record is that the District Magistrate, Hathras is in possession of the properties of the Trust and is managing the same as a Receiver at least since June, 2017. The factual situation to that extent cannot be in issue inasmuch as in his application being paper no. 17-C, the appellant before us had himself asked the Executing Court for the Receiver being relieved of the charge.

There is nothing on record to establish as to whether on the date the present appeal was filed the Receiver had not taken over the charge and even otherwise having regard to the manner in which the present proceedings have been contested by the appellant namely that the appeal has been dismissed twice for want of prosecution and further since there are serious issue in respect of rights claimed in respect of a charitable hospital, we are of the opinion in the facts on record that it would be in the interest of justice to direct as under :--

The District Magistrate shall continue as a receiver of the trust. He shall maintain separate accounts of income and expenditure in respect of the trust and shall produce the same before the Court as and when required. Neither the plaintiff nor the defendant shall place any interference in the running of the hospital by the District Magistrate in his capacity as the Receiver.

We are also of the opinion that the appeal itself may be decided at the earliest.

Let the appeal be listed for final hearing on 16.01.2018, by which date the parties may file their paper-book. Office is directed to summon the original records of the Court below positively within fifteen days.

For the purpose the Registrar General must issue an appropriate letter to the District Judge concerned.

We clarify that the hearing of the appeal may take place on day to day basis without granting any unnecessary adjournment to either of the parties.

Interim stay application is disposed of finally.

Order Date :- 13.12.2017

VR