Allahabad High Court
Agrasen Kanya Vidyalaya ... vs Thakur Hanuman Ji Maharaj ... on 9 November, 2017
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 7188 of 2017
Petitioner :- Agrasen Kanya Vidyalaya Management Committee
Respondent :- Thakur Hanuman Ji Maharaj Virajman Mandir
Counsel for Petitioner :- Kshitij Shailendra
Counsel for Respondent :- Amit Saxena
Hon'ble Vivek Kumar Birla,J.
Heard Sri Kshitij Shailendra, learned counsel for the petitioner and Sri P.N. Saxena, learned Senior Advocate, assisted by Sri Amit Saxena, learned counsel appearing for the respondent - landlord.
Present writ petition under Article 227 of the Constitution of India has been filed for setting aside the judgment and order dated 5.10.2017 passed by learned Additional District Judge, Court No. 4, Hathras in SCC Revision NO. 17 of 2015 (Thakur Hanuman Ji Maharaj Virajman Mandir Vs. Agrasen Kanya Vidyalaya Management Committee) filed as Annexure-13 to the writ petition.
Facts in brief of the case are that the suit filed by the respondent - trust was dismissed by the trial court against which a revision was filed which has been allowed and the matter has been remanded back to the trial court with certain observations for the purpose of recording findings on certain issues. While remanding back the matter observations have been made for guidance of the trial court.
Matter was argued at length from both sides.
The crux of the dispute appears to be that as per the petitioner Prem Ballabh Das is not the manager of the Trust and therefore, he cannot maintain the suit. The status as tenant of the petitioner-Institution is not in dispute.
Submission of learned counsel for the petitioner is that earlier also while passing the order dated 26.11.2015 certain observations in favour of Sri Prem Ballabh Das were made by the revisional court which was challenged before this Court by filing Matters under Article 227 No. 7576 of 2015, Agrasen Kanya Vidyalaya Management Committee Vs. Incharge, District Judfge, Hathras and another. The aforesaid writ petition was disposed of with certain observations vide order dated 23.12.2015, relevant paragraphs whereof are quoted as under:
"In rebuttal, Sri Saxena, learned Senior Counsel would submit that this Court may clarify that the observations made in the judgment and decree dated 18 November 2015 would not tantamount to a declaration that the plaintiff is either the Manager, or is not managing the affairs of the trust, further, the observations of the trial court would have no bearing on the pending suits.
The revisional court hearing a revision under Section 25 of the Provincial Small Cause Courts Act against a decree of dismissal of the suit would have no competence to hold or declare either directly or indirectly one of the claimants as Manager of the trust which, admittedly is subject matter of pending suits, further, in summary proceedings the question of locus, competence of the second respondent to manage the affairs of the trust as Manager could only have been gone into incidentally, but authoritative finding could not have been returned while clarifying the observations made in the judgment of the trial court, the revisional court has practically held the second respondent the Manager of the trust and stayed the judgement and decree to the extent it would have an effect on the management of the affairs of the trust by the second respondent as Manager, which was in contradiction to the order passed in the writ petition, wherein, the second respondent was held not to the Manager of the trust. The question was to be adjudicated in the pending suits.
In this view of the matter, the operative part of the impugned order dated 26 November 2015 is set aside, it is clarified that the observation made in the judgment and decree dated 18 November 2015 regarding the second respondent (Ramballabh Das) not being the Manager shall have no bearing on the pending suits seeking declaration of managerial rights of the trust, accordingly, the impugned order would stand substituted.
With the aforesaid observation, the petition is finally disposed of.
No cost."
In the totality of the circumstances and after hearing learned counsel for the parties I am not inclined to interfere in the remand order, however, it is provided that since the observation of the trial court that bonafide need is to be looked into, which was patently incorrect, therefore, I do not find any legal infirmity in remanding the matter back.
However, it is made clear that though the observations have been made by the revisional court for the purpose of guidance of the trial court but the parties shall be at liberty to advance their arguments or lead evidence on all issues that have been directed to be decided by the revisional court and the trial court may apply its mind, keeping in mind the observations of this Court as quoted above also as the suit is by the trust and the institution is the tenant.
With the aforesaid observations/directions, this writ petition is finally disposed of. No order as to costs.
Order Date :- 9.11.2017
p.s.
