Shri Shri 108 Shri Baba Durbal Nath ... vs Mor Dhwaj Chauhan & Ors.
2016 Latest Caselaw 6618 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 317/2016

%                                                            24th October, 2016

SHRI SHRI 108 SHRI BABA DURBAL NATH MAHARAJ MANDIT
SAMITI (REGISTERED)                                    ..... Appellant
                    Through: Mr. S.N. Kalra, Advocate.
                          versus

MOR DHWAJ CHAUHAN & ORS.                                       ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.39499/2016(Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No.39501/2016 (condonation of delay in filing of 1 day) & CM No. 39500/2016 (condonation of delay in re-filing of 141 days)

For the reasons stated in the application delay in filing and re-filing the

appeal is condoned.

CMs stand disposed of.

RSA No.317/2015, CM No. 39497/2016 (stay) & CM No. 39498/2016 (for permission to examine the election officer)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the unsuccessful plaintiff challenging

the concurrent Judgments of the courts below; of the Trial Court dated

3.12.2012 and the First Appellate Court dated 3.8.2015; by which the suit for

injunction filed by the appellant/plaintiff/society to restrain the

respondents/defendants against the peaceful working of the

appellant/plaintiff/society was dismissed. In effect, the

appellant/plaintiff/society by the suit was seeking declaration as illegal the

elections to the appellant/plaintiff/society on 4.4.2004. At the outset itself I

may state that though the appellant/plaintiff is a society, really the suit is not

filed by the society because the suit is filed through Sh. Gulzari Lal Kichchi

who was said to be the President of the society and who was unsuccessful in the

elections conducted on 4.4.2004. Another extremely important aspect to be

noted is that the term of the elected office bearers is for 3 years and therefore

today in 2016 I fail to understand as to how this suit at all for questioning the

elections of April, 2004 should continue because even assuming Sh. Gulzari Lal

Kichchi claiming himself as President of the society would succeed, the only

benefit would have been to continue as office bearers of the society till 2007

and we are already in the year 2016.

2. The facts of the case are that the subject suit was filed allegedly on

behalf of the appellant/plaintiff/society through its alleged President Sh. Gulzari

Lal Kichchi seeking the following relief:-

"It is, therefore, prayed that this Hon'ble Court may be pleased to permanently restrain the defendants their associates, assignees and agents from interfering/obstructing into the peaceful working of the Society and its office bearers and also from removing the signboard of the office bearers of the elected office bearers or doing any other damages to the Mandir and the property of the Society and also from disturbing the religious programmes, meetings of the Mandir and the Society by way of passing a decree of permanent injunction against the Defendants and their associates, assigness and agents and in favour of the Plaintiff.

Any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances may also be granted to the Plaintiff."

3. The cause of action as stated in the suit was with respect to election

and voting which were to take place on 4.4.2004 as per election programme and

which is stated in para 5 of the plaint as under:-

"5. That as per the election programme announced by the above said three Election Officers, the nomination were to be filed from 25.3.2004 to 27.3.2004 from 9.00 A.M to 8.00 P.M and date for withdrawal of nomination was fixed on 28.3.2004 upto 8.00 P.M. and voting was to take place on 4.4.2004 from 8.00 A.M. to 5.00 P.M. The venue of holding the election was at 552, Amrit Kaur Puri Tank Road Karol Bagh N. Delhi."

4. According to the appellant/plaintiff Sh. Gulzari Lal Kichchi there

were only three candidates for the three posts of President, General Secretary

and Treasurer being Sh. Gulzari Lal Kichchi, Sh. Satender Prava and Sh.

Mahender Kumar Pahwa respectively and since there were only three

candidates for the three posts there was no necessity for voting and the election

officers therefore declared the results of the election on 29.3.2004 declaring

three office bearers as elected and the oath ceremony of the elected office

bearers took place on 30.3.2004. A written intimation of the election result was

given to the Registrar on 5.4.2004. Suit was thus prayed to be decreed.

5. Respondents/defendants contested the suit and filed the written

statement. A separate written statement was filed by defendant no.6 whereas

the other defendants have filed joint written statement. The defence of the

defendants in the written statement was that the time for filing of the

nomination papers was from 25.3.2004 to 27.3.2004 with 28.3.2004 being the

last date of withdrawal of nomination and voting to be held on 4.4.2004 in the

premises of the Mandir. The voter list was to be prepared till 21.3.2004 and up

till this date 146 members were inducted and a sum of Rs.7,000/- was collected

towards subscription in relation to the election officers. After 21.3.2004 the

date of closing of admission of members, on 22.3.2004 one election officer Sh.

Mohan Lal asked another election officer Sh. Duli Chand Shankla to admit

certain members which Sh. Duli Chand Shankla refused but in spite of the

same, the election officer Sh. Madan Lal started admitting certain persons as

members of the appellant/plaintiff/society. When this fact came to the

knowledge of the governing body, an emergency meeting of the General Body

was called on 23.3.2004 wherein the acts of the election officer was condemned

and the election officers were dismissed from the position of election officers

and in their place Sh. Tara Chand Parewa, Sh. Vinod Nagar and Sh. Bal Krishan

Chauhan were appointed as election officers. The Minutes of the General Body

dated 23.3.2004 were signed by all the present members including Sh. Panchu

Ram Kichchi, the then President. Election process thereafter continued and

nomination papers were filed for 21 posts. For each of the posts only one

nomination paper was filed except in the case of Treasurer for which two

nominations were filed and elections were held on 4.4.2004 as per schedule and

nominees were declared elected as per their respective posts. After completion

of the elections accounts were demanded from Sh. Panchu Ram, the erstwhile

President, but he colluded with the dismissed election officers to grab the funds

of the society and Sh. Panchu Ram Kichchi started representing his son Sh.

Gulzari Lal Kichchi (the appellant/plaintiff) as the President of the plaintiff-

society. This suit filed by the plaintiff was therefore prayed to be dismissed.

6. After completion of pleadings on 7.4.2005, the following issues

were framed:-

"1. Whether the plaintiff is entitled for relief of permanent injunction?OPP

2. Whether the present suit has not been filed by a duly authorised person? OPD

3. Whether the suit is bad for mis-joinder of the necessary party?OPD

4. Relief."

7. Sh. Gulzari Lal Kichchi appeared as PW1. He relied upon the

voter list as Ex.PW1/1 and Ex.PW1/2 the intimation given to the Registrar of

Societies on 5.4.2004 as regards the elections. In his cross-examination, he had

admitted that till 21.3.2004 only 146 members were accepted by the society and

which was the last date for enrollment of members. Sh. Gulzari Lal Kichchi

(PW1) also admitted that a meeting of the General Body was called on

23.4.2004 and the earlier elections officers namely Sh. Babu Lal, Sh. Banwari

Lal and Sh. Mohan Lal were removed from the posts of elections officers,

however, he showed ignorance as to who were appointed as election officers in

the place of the earlier election officers. These aspects are noted by the first

appellate court in paras 17 to 19 of the impugned judgment, and which paras

read as under:-

"17. Plaintiff has examined Shri Gulzari Lal Kichchi as PW1. He stated and reiterated on oath the contents of his plaint in his evidence by way of affidavit Ex.P-1. He has relied upon certain documents Ex.PW1/1 is the voter list. Ex.PW1/2 is the copy of intimation regarding elections given to the Registrar of Societies on 05.04.2004. Ex.PW1/D1 and D2 are the original receipt books brought by him during his cross-examination.

18. In his cross examination, he admitted that after 14.03.2004 when it was decided to hold the elections of the plaintiff society, the general members of the Society were nominated and subscriptions were collected and receipts were also issued. He also admitted that the receipts were signed by his father, Shri Panchu Ram Kichchi and Shri Dulli Chand. He produced the receipt books and admitted that uptill 21.03.2004, only 146 members were accepted by the Society. He also admitted that on 23.04.2004, a meeting was called by the plaintiff society and Shri Babu Lal, Banwari Lal and Mohan Lal were removed from the post of election officers. He showed ignorance when asked as to who were appointed as election officers in their place but denied the suggestion that the persons so appointed were Tara Chand, Vinod Nagar and Bal Krishan.

19. Interestingly, he could not tell the date of elections in which he and Mahender and Satender were elected as office bearers of the Society. He also admitted that the election was to be held on 04.04.2004 but denied the suggestion that it was so conducted. (underlining added)

8. On behalf of the defendants evidence was led. Defendant no.1

examined himself as DW1 and proved various documents. Defendant no.11

examined himself as DW2. DW3 Sh. Vinod Nagar was one of the election

officers who conducted the election on 4.4.2004 alongwith Sh. Tara Chand and

Sh. Bal Krishan. These aspects are noted by the first appellate court in paras 21

to 24 of the impugned judgment and these paras read as under:-

"21. Defendant no.1 has examined himself as DW1 and stated and reiterated on oath the contents of the written statement. He has relied upon certain documents. Ex.DW1/1 is copy of Registration Certificate of the Society Ex.DW1/2 is copy of Rules and Regulations of the Society. Ex.DW1/3 is the copy of Minutes of Meeting dated 23.03.2004. Ex.DW1/4 is the Agenda of the Meeting dated 23.03.2004. ExDW1/5 is the Minutes of Meeting dated 23.03.2004. Ex.DW1/6 is copy of election proceedings dated 04.04.2004. Ex.DW1/7 is a copy of list of office bearers of Managing committee of the plaintiff society right from 1997 to 2004 with the office of the plaintiff society from 1997 to 2004 Ex.DW1/8 is original GPA.

22. Defendant no.11 has examined himself as DW2. He has also deposed in consonance of deposition of DW1 and relied upon the same documents.

23. DW3 is Shri Vinod Nagar who deposed that he was one of the election officers who held the election of the society on 04.04.2004 along with Shri Tara Chand and Shri Bal Krishan. They were appointed as election officers in the meeting held on 23.03.2004, minutes of which all Ex.PW1/3. Elections were announced for 21 office bearers of the plaintiff society and nominations were filed for all the 21 posts. He had informed the SHO vide letter dated 27.03.2004 (Ex.DW3/1) about the conduct of the elections. The elections of the plaintiff society were held on 04.04.2004 in the general body meeting, the proceedings of which are already Ex.DW1/6. He identified his signatures as well as those of other elections officers on Ex.DW1/6. He also deposed that he had declared the result of the elections in the list mentioned as Ex.DW1/6 as there were only single nominations filed.

24. Nothing material was brought in the cross-examination of defendant witnesses to shake their veracity or their deposition. Interestingly, a suggestion has been given to DW3 which he had admitted that in the election held on 04.04.2004, he was the election officer." (underlining added)

9. In my opinion, the first appellate court has rightly held that Sh.

Gulzari Lal Kichchi who claimed himself to be the President of the

appellant/plaintiff/society has miserably failed to prove his case because the

basic premise was that Sh. Gulzari Lal Kichchi was elected as the President of

the appellant/plaintiff/society on 29.3.2004 but except a self-serving affidavit of

Sh. Gulzari Lal Kichchi exhibited as Ex.P1 and an intimation sent to the

Registrar of the Societies on 30.3.2004 Ex.PW1/2 no other evidence was led.

No independent witness was examined on behalf of Sh. Gulzari Lal Kichchi to

prove that he was elected to the post of the President on 29.3.2004 and in fact he

admitted that new election officers namely Sh. Tara Chand, Sh. Vinod Nagar

and Sh. Bal Krishan were appointed on 23.4.2004 after removing the earlier

election officers. The first appellate court also rightly notes that Sh. Gulzari Lal

is unsuccessful and hopelessly seeking to linger on the present case and

therefore the first appeal was liable to be dismissed. These aspects are noted in

paras 31 to 34 of the impugned judgment and which paras read as under:-

"31. I have also carefully perused the impugned judgment and decree dated 03.12.2012. It has been rightly held by the Ld. Trial Court that the fact that Shri Gulzari Lal was elected as President of the plaintiff society on 29.03.2004 as alleged by him is the basic premise on which the entire case of the plaintiff rests. Thus, in order to get the relief of injunction as prayed, plaintiff wad duty bound to prove the said fact.

32. As regards evidence of the plaintiff qua the said fact, he has miserably failed to lead any evidence on the same. The only evidence of the plaintiff is his own self serving affidavit Ex.P-1. As per his case, Shri Gulzari Lal was elected as President of plaintiff society on 29.03.2004 and was declared as such by the election officers, namely, Mohan Lal, Babu Lal and Banwari Lal. In support of this fact, plaintiff has relied upon an intimation sent to the Registrar of Societies on 30.03.2004 (Ex.PW1/2). However, interestingly, in his own cross examination, PW1 has admitted that the said three election officers namely, Mohan Lal, Babu Lal and Banwari Lal were removed from the post of election officer in a meeting held on 23.04.2004. Thus, the documents of the plaintiff are not supporting his deposition.

33. In addition to this, the plaintiff has not examined any independent witness either to prove his election to the post of President on 29.03.2004 or to prove the alleged incident of 16.05.2004 which had allegedly occurred in presence of several persons.

34. I am also in agreement with the submissions made by ld. counsel for defendants that the issue which the plaintiff has prayed to be framed is not supportive of his own case and is thus another hopeless attempt to linger on the present case further. In view of the admissions of the PW1 as discussed above, I am of the opinion that no purpose shall be served by framing any additional issue as even if the plaintiff succeeds in proving the said issue in his favour, the said evidence shall be contradictory to the evidence already on record."

(underlining added)

10. Learned counsel for the appellant/plaintiff/society very vehemently

argued that appellant/plaintiff/society had filed an application before the first

appellate court for framing an additional issue and also for leading additional

evidence as to whether Sh. Gulzari Lal Kichchi was elected as President of the

society on 4.4.2004, but the first appellate court has, it is argued, cryptically

dismissed the said prayer as per paragraph 34 of the judgment of the first

appellate court, and therefore this Regular Second Appeal is prayed for being

allowed and the matter is prayed for being remanded to the trial court to lead

evidence on the new issue. It is noted that the relevant paragraph of the

judgment of the first appellate court in this regard are paragraphs 27 and 34, and

since paragraph 34 is already reproduced above, paragraph 27 containing the

case of the appellant is reproduced as under:-

"27. After filing of the appeal, the plaintiff filed an application under Order 41 Rule 25 read with Section 151 CPC for framing of additional issue. It is alleged in the application that in paragraph no.15 of the impugned judgment, Ld. Trial Court had held that the entire case of the plaintiff rests on the contention that Shri Gulzari Lal was elected as the President of the plaintiff society on 29.03.2014 but the plaintiff was failed to prove the same. It is stated that the entire case of the plaintiff calls for the examination of the election officers whose names had been mentioned in Ex.PW1/2, copy of which was already deposited with the office of Registrar of Companies. Earlier the plaintiff could not assess the urgency and necessity for the examination of the said witness but now considering the fact that the said witnesses/election officers are important,

material and necessary for the proof of the plaintiff's case, he has filed the present application seeking framing of an issue and a direction to the parties to lead evidence on the said issue. The issue as required to be framed is as under:-

"Whether there was an election of plaintiff society held on 04.04.2004 wherein Shri Gulzari Lal was elected as President and its result was submitted with the Registrar of Societies?"

11. I completely agree with the findings and conclusions of both the

courts below and of the first appellate court in dismissing the claim for

remanding the matter for framing of an additional issue because the issue sought

to be got framed was destructive to the pleaded case of Sh. Gulzari Lal Kichchi,

because, Sh. Gulzari Lal Kichchi claimed that he was elected on 29.3.2004 and

that no elections were held on 4.4.2004 on account of there only being one

nominee, and therefore the new issue sought to be framed by Sh. Gulzari Lal

Kichchi was clearly destructive of the case of the appellant/plaintiff/society. In

view of the detailed analysis and conclusions of the first appellate court counsel

for the appellant is unjustified in arguing that his prayer for framing an

additional issue and leading additional evidence has been dealt with only in

cryptic manner. The judgment of the first appellate court has to be read as a

whole and the various aspects are discussed by the first appellate court in as

many as 17 paragraphs from paragraphs 17 to 34 of the impugned judgment and

therefore it cannot be said that the ultimate conclusion given in paragraph 34

has to be read in isolation and not with reference to the other paragraphs of the

impugned judgment of the first appellate court.

12. The most important aspect in the present second appeal, and which

is stated in the first para of this judgment, is that the present litigation is

unnecessarily continuing thereby causing unnecessary harassment to the

respondents, as also gross wastage of judicial time, because, the benefit of the

elections of the year 2004 for an elected body of three years would have a cause

of action only till 2007 and today in 2016 the suit has in fact become completely

infructuous. Therefore, in my opinion, this Regular Second Appeal besides

being without merit, is completely frivolous.

13. In view of the above, this Regular Second Appeal is dismissed as it

raises no substantial questions of law. In the facts of the case, the second appeal

is dismissed with costs of Rs.30,000/- to be deposited within a period of four

weeks with the Friendicoes, No.271 & 273, Defence Colony, Flyover Market,

Jangpura Side, New Delhi-110024.

14. Matter be listed before the Registrar (General) for ensuring

compliance of the order with respect to deposit of costs on 19.12.2016.

OCTOBER 24, 2016                                       VALMIKI J. MEHTA, J
ib