Ashok Kumar Pandey S/O Late Sh. ... vs Kamal Kumar Pandey S/O Late Sh. ...
2023 Latest Caselaw 2936 Raj/2

[2023:RJ-JP:16225]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 91/2022

Ashok Kumar Pandey S/o Late Sh. Shiv Prasad Pandey, Aged
About 71 Years, R/o Shiv Bagiya, Nrasingh Road, Dhaulpur
Tehsil, District Dhaulpur (Rajasthan)
                                                       ----Petitioner/Defendant
                                     Versus
1.       Kamal Kumar Pandey S/o Late Sh. Shiv Prasad Pandey,
         Aged About 70 Years, R/o Shiv Bagiya, Nrasingh Road,
         Kothi Dhaulpur Tehsil, District Dhaulpur (Rajasthan)
                                                             Respondent-Plaintiff

2. State Of Rajasthan, Through District Collector, Dhaulpur (Rajasthan)

3. Devasthan Department, Rajasthan, Through Commissioner, Devasthan Department, Udaipur, Rajasthan.

4. Devasthan Department, Rajasthan, Through Assistant Commissioner, Devasthan Department, Dhaulpur, Rajasthan.

5. Devasthan Department, Rajasthan, Through Inspector, Devasthan Department, Dhaulpur, Rajasthan.

----Respondents-Defendants

For Petitioner(s) : Mr. Pradeep Kumar with Mr. Karan Audichia For Respondent(s) : Mr. Ugra Sen Yadav, AGC Mr. Dinesh Kumar Garg

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

02/08/2023

Although, the matter comes up on stay application; but, on

the request of learned counsels for the respective parties, it has

been heard finally at this stage.

[2023:RJ-JP:16225] (2 of 7) [CR-91/2022]

This revision petition has been filed against the order dated

21.03.2022 passed by the learned Additional Civil Judge No.1,

Dholpur (for brevity "the learned trial Court") in Civil Suit

No.107/2021 whereby, an application filed by the

petitioner/defendant No.5 (for brevity "the defendant No.5") under

Order 7 Rule 11(d) CPC, has been dismissed.

The relevant facts in brief are that the respondent

No.1/Plaintiff (hereinafter referred to as "the plaintiff") filed a suit

for permanent injunction against the defendant No.5 and the

respondents No.2 to 5 stating therein that he performs 'Seva Puja'

of the Mandir Mahadev Ji as per his Osra. It is averred that the

defendant No.5, in collision with the defendants No.2 to 4, has

obtained an order dated 11.02.2021 appointing him as Osredaar

Pujari. Alleging that the defendant No.5 has not such right, the

decree as aforesaid was prayed for. Therein, an application filed by

the defendant No.5 under Order 7 Rule 11 (d) CPC has been

dismissed by the learned trial Court vide order dated 21.03.2022,

impugned herein.

Assailing the order, learned counsel for the defendant No.5

submits that since, Section 73 of the Rajasthan Public Trusts Act,

1959 (for brevity "the Act of 1959") bars jurisdiction of the Civil

Court in respect of orders passed under the Act of 1959, the suit

is not maintainable. He further submits that his right of Osra has

already been recognised by the learned Civil Court which has

attained finality up to this Court and therefore, validity of the

order dated 11.02.2021 passed by the Devasthan Department

apportioning Osredaari in between him and the plaintiff could not

be subject-matter of challenge in the suit. He, therefore, prays

[2023:RJ-JP:16225] (3 of 7) [CR-91/2022]

that the civil revision petition be allowed, the order dated

21.03.2022 be quashed and set aside and the application filed by

him under Order 7 Rule 11 (d) CPC be allowed.

Per contra, learned counsels for the respondents, supporting

the findings recorded by the learned trial Court, submit that this

revision petition is devoid of merit and be dismissed accordingly.

Heard. Considered.

Section 73 of the Act of 1959 reads as under:-

"Sec. 73 - Bar of jurisdiction.- Save as expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive."

A perusal of the aforesaid provision reveals that jurisdiction

of the Civil Court is barred to decide or deal with any question

which is by or under this Act to be decided or dealt with any

officer/authority under the Act and in respect of which decision or

order of such officer/authority has been made final or conclusive.

When asked by this Court as to whether the order dated

11.02.2021, the subject-matter of challenge in the suit, with

regard to Osredaari or right to perform 'Seva Puja', is the

'question' which has been decided by the officer/authority under

the Act of 1959, learned counsel for the defendant No.5 placed

reliance upon Section 38 of the Act of 1959. Section 38 of the Act

of 1959 deals with authority of the Assistant Commissioner to

pass necessary order concerning to management of the public

[2023:RJ-JP:16225] (4 of 7) [CR-91/2022]

trust and not with inter-se right(s) of the parties to perform 'Seva

Puja'. Leaned counsel for the defendant No.5 could not satisfy this

court that right of 'Seva Puja'/Osredaari pertains to management

of the public trust; rather, he fairly conceded that it is a civil right.

In view thereof, this Court is of the considered view that the

provisions of Section 73 of the Act of 1959 have no applicability in

the present case.

Dealing with an identical situation, a Coordinate Bench of

this Court has, in case of Secretary, Ramdev Trust Committee

versus Mangu Das & Ors.: MANU/RH/0215/2008, held as

under:-

"8. Reference to the decision of this Court in Sharad Kumar's case (supra) for the purpose of the present suit as sought to be made by the defendant-petitioner appears to be entirely misconceived; and rather, the statement of law therein operates against the petitioner. After noticing the scheme of the Act of 1959 and the frame of the related civil suit where the plaintiffs-appellants claimed declaration and perpetual injunction in respect of three temples and claimed hereditary rights to participate in the management of the temple as trustees and also claimed the right to worship, this Court looked at the pith and substance of the suit and observed that the same was in challenge to the entry made in the register of the public trust which cannot be adjudicated upon by civil suit save in the manner and within the period prescribed under Section 22 of the Act of 1959.

          In    relation     to     the      argument             by   the
          plaintiff-appellant           that       the       suit      was


 [2023:RJ-JP:16225]                      (5 of 7)                             [CR-91/2022]

maintainable in the civil Court because a declaration of his right to worship has also been sought, this Court observed that such a relief was, of course, not within the ambit of the relevant provisions of the Act of 1959 but then, reading the plaint as a whole, this Court found that additional prayer for declaration of right to worship would not take the matter out of the pale of Section 73 of the Act of 1959 as the suit was filed basically seeking a declaration of right to participate in the management of the temples as a trustee; and such a matter was covered by the Act of 1959. Hence, looking to its frame and its substance, the said suit was found barred by law, i.e., Section 73 of the Act of 1959. This Court observed, found and held as under:

I have no manner of doubt that the suit has been instituted, in effect and substance, challenging the entry in the Register of the Public Trusts which cannot be adjudicated upon by civil suit save in the manner and within the period prescribed under Section 22 of the Act. It is relevant to mention here that Section 44 of the Act excludes the applicability of Sections 92 and 93 of the C.P.C. and, therefore, the suit could not be entertained as representative suit under Section 92 of the Code. As regards the submission of the counsel that the appellant had also sought a declaration of his right to worship, it is true that such a relief does not fall within the ambit of the aforementioned provisions but it is

[2023:RJ-JP:16225] (6 of 7) [CR-91/2022]

well settled that nature of the suit has to be determined on reading of the plaint as a whole and not on the basis of reliefs sought. So read, the fact that the appellant also prayed for declaration of right to worship does not take the matter out of the pale of Section 73 read with the corresponding provisions of the Act. The suit was filed basically seeking a declaration of right to participate in the management of the temple as a trustee- a matter covered by the Act.

In the above premises, I find no error in the decisions of the Courts below rejecting the plaint under Order-7, Rule- 11(d) of the Civil Procedure Code as barred by Section 73 of the Public Trusts Act.

9. Frame of the present suit makes it clear that the only claim of the plaintiffs-non- petitioners has been of their hereditary right of worship and the cognizance of the claim as made in the present suit by the civil Court cannot be said to be expressly or impliedly barred by any law. Profitable it shall be to notice the emphasised portion (supra) in the decision in Sharad Kumar's case wherein this Court has indicated that a relief in relation to declaration of right to worship does not fall within the ambit of the related provisions of the Act of 1959 so as to consider bar to the suit and so as to render the plaint liable for rejection. For the very observations as made by this Court in Sharad Kumar's case (supra), the application moved by the petitioner was fundamentally

[2023:RJ-JP:16225] (7 of 7) [CR-91/2022]

misconceived and was required to be rejected. Learned Trial Court has rightly done so."

Insofar as the contention of the learned counsel for the

defendant No.5 that the order dated 11.02.2021 has been passed

by the Commissioner, Devasthan Department in pursuance of an

order passed by the Civil Court, suffice it to say that the

application filed by him under Order 7 Rule 11 CPC is bereft of any

such averment. The order dated 21.03.2022 also does not reveal

any such submission made on his behalf while assailing

maintainability of the suit. In these circumstances, this contention

does not merit acceptance.

Since, from the averments made in the plaint, it does not

appear to be barred by any law, the learned trial Court did not err

in dismissing the application filed by the defendant No.5 under

Order 7 Rule 11 CPC.

Resultantly, this revision petition is dismissed being devoid of

merit. Pending application also stands dismissed.

(MAHENDAR KUMAR GOYAL),J

Manish/53

Powered by TCPDF (www.tcpdf.org)