Thakur Bankatesh Ji Maharaj ... vs Suresh Chandra Sharma
2019 Latest Caselaw 2552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 3
 

 
Case :- SECOND APPEAL No. - 564 of 2000
 

 
Appellant :- Thakur Bankatesh Ji Maharaj Birajman Radha Niwas And Another
 
Respondent :- Suresh Chandra Sharma
 
Counsel for Appellant :- K.S.Tiwari
 
Counsel for Respondent :- D.K.Tripathi,Manish Goyal
 

 
Hon'ble J.J. Munir,J.

1. This appeal is directed against an appellate decree of Sri Bhagwati Prasad, the then Vth Additional District Judge, Mathura, dated 21.02.1999, passed in Civil Appeal No. 10 of 1999, dismissing the appeal and affirming an original decree of Sri M.P. Srivastava, the then IV Additional Civil Judge, (Senior Division), Mathura, dated 23.11.1998 allowing an application by the defendant under Order VII Rule 11 C.P.C. and rejecting the plaint in Original Suit No. 67 of 1998, being a suit for permanent prohibitory injunction, sought in terms to be detailed hereinafter.

2. Heard Sri K.S. Tiwari, learned counsel for the appellant and Sri Manish Goyal, learned counsel appearing on behalf of sole defendant-respondent.

3. The first plaintiff is Thakur Banketeshji Maharaj Virajman Radha Niwas Vrindawan, Tehsil and District Mathura, who is the ruling deity of the temple of Thakur Banketeshji Maharaj Virajman, Radha Niwas Vrindawan. The first plaintiff is shown to be represented through His Mohtamim Mutwalli, Mahant Narayan Dutt, disciple of the Late Acharya Keshri Dutt, through his general power of attorney holder, Gopal Gaur S/o Sri Nand Kishore Sharma. Thus, the first plaintiff who is none other than the ruling deity of the temple of Thakur Banketeshji Maharaj Virajman has been shown to be represented, through Mahant Narayan Dutt acting through the holder of a general power of attorney from him, that is Gopal Gaur.

4. The second plaintiff is again Gopal Gaur S/o Sri Nand Kishore Sharma. While suing as the second plaintiff, the assertions in the plaint show that the Appellant No. 2 has asserted a right in his favour to bring the suit on the strength of the power of attorney, executed in his favour by Mahant Narayan Dutt. This power of attorney is a registered document dated 01.09.1997, according to the plaintiff, by which Mahant Narayan Dutt has constituted the second plaintiff-appellant his attorney to look after the property of Thakur Banketeshji Maharaj Virajman, Radha Niwas Vrindawan (hereinafter referred to as 'Thakur ji') and further conferred upon him ecclesiastical duties relating to Thakur Ji, that involve Seva, Pooja, Bhog, Rag etc. It is asserted that back to mundane matters, Mahant Narayan Dutt has authorised the second appellant to prosecute and defend pending cases relating to the property of Thakur Ji, as also those that may arise in future.

5. It has been asserted further that the power of attorney dated 01.09.1997 has not been cancelled and is still in force. It is also an assertion that by the power under reference, Mahant Narayan Dutt has entrusted to the care and custody of the second appellant, various movables of Thakur Ji, which continue to be in his custody. It is also asserted that in keeping with the aforesaid obligations, the second appellant has been undertaking all along regular Seva, Pooja of Thakur Ji, without any interruption, and according to custom. He has further been taking good care of the property of Thakur Ji, maintaining it and realizing rents from tenants, in occupation of property that is debutter. It is asserted that the defendant-respondent no. 1 has no right in the suit property. But the said defendant-respondent has an evil eye on Thakur Ji's property that he wants to usurp and take illegal possession of.

6. It is also claimed in the plaint that defendant-respondent has proclaimed, that he would dispossess the second appellant from the suit property, and would not allow the said appellant to undertake his routine religious service. It is then averred that on 26.01.1998, the defendant-respondent made a determined effort to oust the second appellant from possession of the suit property by force but he was not successful at it. It has been in the last averred that in case the defendant-respondent succeeds in dispossessing the second appellant, he would suffer irreparable loss and injury. On foot of these facts, a permanent prohibitory injunction has been claimed by the second appellant, suing as plaintiff No. 2 and purporting to sue as Plaintiff No. 1, in the name of Thakur Ji represented through him, to the effect that the defendant-respondent be restrained from interfering with his management of the affairs and property of Thakur Ji.

7. The defendant-respondent filed an application dated 18.02.1998, under Order VII Rule 11 C.P.C., duly supported by affidavit with a case in brief to the effect that the power of attorney dated 01.09.1997, that is basis of the second appellant's right, claimed in the suit has been cancelled by Mahant Narayan Dutt through a registered document dated 13.10.1997, and, he has further sent information in regard to such cancellation to the second appellant, which the latter has received. It is also said in that application that the original power of attorney dated 01.09.1997 has been taken back by Mahant Narayan Dutt from the second appellant. It is, therefore, said in the motion to reject the plaint that on the date when the suit was instituted, Appellant No. 2 did not hold any power of attorney entitling him to represent either Thakur Ji, or otherwise, to sue for the protection of Thakur Ji's properties or any other right, the suit being instituted on 28.01.1998. It is thus said that the second appellant has no cause of action to institute a suit either in the name of Thakur Ji, or in his own name to protect and safeguard the interests of Thakur Ji. A reply to the motion under Order VII Rule 11 has been filed on behalf of the second appellant saying that the power of attorney in his favour has not been cancelled by Mahant Narayan Dutt or has he received any information in that behalf. It is further said that at the time of instituting the suit, the plaintiff-appellant No. 2 was the lawful attorney of Narayan Dutt, and continues to be so entitling him to sue. He, therefore, demanded that the motion under Order VII Rule 11 be rejected and the suit allowed to proceed.

8. Both courts below by the orders impugned in this appeal, that bear the force of a decree, have sustained the defendant-respondent's motion under Order VII Rule 11, and rejected the plaint. The Court's below found that the suit was filed by the deity through his Sarvarakar, Mahant Naryan Dutt, with the second plaintiff claiming himself to be the holder of a power of attorney from Mahant Narayan Dutt. It is not in issue that the power of attorney dated 01.09.1997 that was set up as the foundation of the second appellant's right to sue on behalf of the deity was not filed as basis of the suit. In fact, it was never filed at all, before both the court's below. The said power of attorney dated 01.09.1997, which appears to be a registered document was cancelled by the Mahant on 13.10.1997, also by a registered document that was filed by the defendant as paper no. 25 Ga. This document cancelling the power dated 01.09.1997, has not been disputed or denied by the second appellant. Apparently, when the suit was filed on 28th January, 1998 on behalf of Thakur Ji, represented through the second appellant, and in his own name also, on the basis of the power of attorney of 1st September, 1997, the second appellant did not have that power surviving, owing to its cancellation on 13.10.1997 by the Mahant through a supervening instrument, revoking the power.

9. Here, the Court must pause and and remark that a perusal of the plaint shows that Mahant Narayan Dutt through whom Thakur Ji has been represented, has been described as "Mohatimim Mutawalli". Mohatimim Mutawalli is the closest equivalent known to English Law as a trustee but the same is a legal concept native to Mohammedan Law relating to Wakhf. It has absolutely no place or relevance in the context of a Mahant, entitled to represent a deity under the Hindu Law. Though not of much consequence to the determination of the issue here, this manner of a most callous description of parties betrays, to say the least, culpable ignorance on the part of the draftsman who has drawn up pleadings in this case. This Court wishes to say no more about this issue.

10. Before the Appellate Court it appears that finding the situation uneasy, the plaintiff-appellant No. 2 took a plea that assuming without prejudice that he held no power of attorney on the day he instituted the suit, he had a right to sue in his individual capacity. This plea never found place in the plaint and was, therefore, rightly discarded by the Appellate Court on reasoning that the second appellant had alone claimed a right to sue on behalf of the Mahant, derived through a power of attorney to represent Thakur Ji. Most certainly, the length and breadth of the plaint does not disclose, by as much as a hint, a personal right to sue in the second appellant. Even if such a right were set up, on a plain reading of the plaint, there is absolutely no place for a personal right, and consequently no cause of action to sue on the basis of it. It must be noticed here that provisions of Order VII Rule 14 C.P.C. mandate that a document upon which a plaintiff sues, popularly referred as a basis of the suit, shall enter such document/documents in a list and shall produce it in Court when the plaint is presented by him. He is also obliged to deliver the document and a copy thereof to be filed along with the plaint. In this connection, the provisions of Order VII Rule 14 may be quoted with profit:

[14. Production of document on which plaintiff sues or relies. - (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]

11. In this regard the document on which a suit is based, being part of the cause of action, has been considered and answered in favour of strict compliance, in the absence of which the cause of action would be lost, in Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee1, where it has been held thus by their Lordships:-

"17. In the case on hand, the respondent-plaintiff to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second defendant has the necessary authority under the power of attorney. Order 7 Rule 14 mandates that the plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order 7 Rule 14(1). As rightly pointed out by the learned Senior Counsel for the appellant, if he is not in possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order 7 Rule 14(2) instead of explaining in whose custody the power of attorney is, the plaintiff has simply stated "nil". It clearly shows non-compliance with Order 7 Rule 14(2).

18. In the light of the controversy, we have gone through all the averments in the plaint. In Para 4 of the plaint, it is alleged that the second defendant as agreement-holder of the first defendant and also as the registered power-of-attorney holder of the first defendant executed the agreement of sale. In spite of our best efforts, we could not find any particulars showing as to the documents which are referred to as "agreement-holder". We are satisfied that neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The abovementioned two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. This position has been reiterated in U.S. Sasidharan v. K. Karunakaran [(1989) 4 SCC 482] and Manohar Joshi v. Nitin Bhaurao Patil [(1996) 1 SCC 169]."

12. In the present case, it is apparent on the face of the record that when the suit was filed on 28.01.1998, there existed no power of attorney in favour of plaintiff-appellant no. 2. There is also nothing on record to show that plaintiff No. 1 represented by the Mahant, had come forward to verify the plaint and its contents, or had instituted the suit. The Courts below have recorded a categorical finding that the power of attorney was not produced by plaintiff-appellant No. 2, either before the Trial Court or before the Appellate Court. The power of attorney has not been produced, even before this Court. The feeble attempt on pleading a personal right to sue before the lower Appellate Court has already been dealt with in the earlier part of this order and found to be utterly derided of substance. Under circumstances, the plaint here taken as a whole, in particular, read with the requirements of Order VII Rule 14, does not disclose a cause of action worth trial. In the considered opinion of this Court, the plaint has been rightly rejected under Order VII Rule 11 C.P.C.

13. In the result, this appeal is dismissed under Order XLI Rule 11 C.P.C.

Order Date :- 05.04.2019

BKM/-