Delhi High Court

Shri Sanatan Dharam Sabha New ... vs Sh.Chander Bhan (Since Deceased) ... on 10 January, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 10.01.2011

+                        RSA No.2/2011


SHRI SANATAN DHARAM SABHA NEW DELHI
                                     ...........Appellant
                 Through: Mr.Sanjay Aggarwal, Advocate.

                   Versus

SH.CHANDER BHAN (SINCE DECEASED) THROUGH LRS.
                                    ..........Respondent
                  Through: Nemo.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

CM No.275/2011

Exemption is allowed subject to just exceptions.

RSA No.2/2011

1. This second appeal has impugned the judgment and decree

dated 16.9.2010 which had endorsed the findings of the Civil

Judge dated 27.4.2006 whereby the suit of the plaintiff seeking

possession and perpetual injunction qua the suit property had

been dismissed.

2. Present suit had been filed on 15.3.1983 . The plaintiff was

a society i.e. Sanatan Dharam Shabha, New Delhi, Laxmi Narain

Templa (Birla Mandir). Suit had been filed through its secretary

M.L.Anand. Averment in the plaint was that M.L.Anand was duly

authorized vide resolution dated 14.11.1982 to file the present

suit. On 07.1.2006, a preliminary issue had been framed by the

trial court it reads as follows:

"Whether the suit of the plaintiff has been duly instituted and by a duly authorized person? OPP

3. An application under Order 6 Rule 17 of the Code of Civil

Procedure (hereinafter referred to as „the CPC‟) had been

preferred by the plaintiff on 15.1.2004 seeking a amendment in

the plaint to the effect that in fact no resolution dated 14.11.1982

authorizing M.L.Anand to file the present suit was on record; the

amendment sought was that the resolution is dated 20.10.1982.

In the amendment application, it has been averred that this fact

that there was no such resolution dated 14.11.1982 had come to

light only recently; application seeking amendment has thus been

filed. Trial judge had recorded that the suit had been filed in the

year 1983; issues were framed on 03.9.2001. Plaintiff had taken

numerous opportunities for the purpose of leading plaintiff

evidence as also for filing the present application i.e. the

application under Order 6 Rule 17 of the Code. The application

was thereafter filed only on 15.01.2004 i.e. after a lapse of almost

21 years for which there was no explanation. Application for

amendment had been dismissed. The court had recorded that

since there was no resolution authorizing M.L.Anand to file the

present suit, his suit was not maintainable; it was dismissed.

4. This finding of the trial court was affirmed by the first

appellate court. The finding in the impugned judgment is

recorded as under:

"9. In the memorandum of appeal the terminology society/trust has been used for the appellant reflecting that it is not sure about its constitution. Despite a specific objection having been taken by the respondent in written statement dated 27.5.83 appellant chose not to file the registration certificate. It needs to be appreciated that there are separate authorities for registration of a trust under Act No.2 of 1882 and a society under Act No.21 of 1860. In order to remove the ambiguity, the appellant was required to submit a certificate of registration. As appearing in the letter heard on which the resolution dated 16.07.07 in favour of Sh.Vinod Kr Mishara, signatory of appeal, has been engrossed I would take the appellant to be a registered society.

10. As has been put by the appellant that only minor correction in the date of resolution in favour of Sh.Madan Lal Anand was to be affected by way of amendment, let us examine whether there is anything more than what meets the eye.

11. The amendment application was filed by appellant when the suit was already pending in the trial court for more than 20 years. By then the plaintiff had availed not less than 10 opportunity for leading evidence over about 2½ years. Absolutely no reasons for the delay in detecting so called "typographical error" have been disclosed. There is nothing to discern the action taken by it against the defaulting official. Having filed a copy or resolution with plaint on 15.05.83 in compliance of Order 7 Rule 14 CPC, Plaintiff was conscious of the fact that original thereof has to be retained in its custody for being produced in court during evidence, in case of need. Apparently the elementary exercise of matching the original with copy to be produced in the court was not performed. The Plaintiff neglected to carryout this exercise even when a specific objection about the quality of resolution dated 14.11.82 was taken by the defendant in his written statement.

12. While perusing the copy of resolution dated 14.11.82 filed

with the plaint, it transpires that it is a typed copy attested by Sh. Madan Lal And as Secretary of plaintiff himself. It must have been prepared from the original and no particulars has been putforth as to had prepared the copy and how only the date mentioned at the top got wrong.

13. It has been represented that the resolution had in fact been passed on 20.10.82 in the meeting of Plaintiff in favour of Sh.Anand. A comparison of the two resolutions however, reveals the folly. The resolution dated 20.10.82 pertains to Shri Sanatan Dharma Sabha Lakshmi Narain Temple Trust and has been attested by its Secretary. The name of Plaintiff on the other hand is Shri Sanatan Dharma Sabha, New Delhi. Apparently the projected resolution does not belong to the plaintiff. While the resolution dated 14.11.82 was passed by the working committee of plaintiff, the one dated 20.10.82 was passed in the general meeting of temple trust. The contents of resolution on being minutely perused have also been found to be materially different. It would therefore be exaggerated to contend that resolution of 14.11.82 and 20.10.82 are same except qua their dates. There is nothing to perceive that temple trust and the Plaintiff are identical bodies. Reliance of appellant on the ratio of United Bank of India Vs. Naresh Kumar, 1996 (6) Scale 764 does not help it out in the facts of the case in view of the above reasons.

14. In para 16 of the plaint the date of accrual of cause of action had been specified to be 13.11.82 and 15.11.82 and that the same was continued. Through the amendment these dates are not sought to be altered. The mentioned of resolution dated 20.10.82 for initiating legal action against the defendant for a cause of action which had accrued more than three weeks thereafter was unmatched. It would have rendered the plaint diabolical. Had the Plaintiff really aggrieved with the conduct of defendant prior to the date of passing of resolution in favour of its Secretary, it would have revealed the actual date of accrual of cause of action instead of leaving it to be a make believe story.

15. Since the amendment amounted to withdrawal of admission which remained on record for more than 20 years and would have render the plaint incongruous and diabolical to the prejudice of defendant, it could not have been allowed. The consequent observations of ld.trial court on preliminary issue were only corollary.