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1969 Supreme(Cal) 206
HIGH COURT OF CALCUTTA
Bijayesh Mukherji, Salil Kumar Datta
SREE KALIMATA THAKURANI OF KALIGHAT - Appellant
Versus
RAM CHANDRA CHATTERJEE - Respondent
F. M. A. 170 Of 1965
Decided On : AUGUST 20, 1969
ARUN PRAKASH CHATTERJI, Dwijendra Nath Lahiri, NALINI RANJAN BHATTACHARJI, NARAYAN CHANDRA DE, Samarendra Krishna Deb, Tarak Nath Roy
Headnote:
ELECTION - KALIGHAT TEMPLE COMMITTEE - VALIDITY - SHEBAITS - RIGHT TO REPRESENT DEITY - COURT FEES - APPEAL - MAINTAINABILITY - SCHEME - AMENDMENT - RES JUDICATA - TRUSTEE - REMOVAL - REPRESENTATION OF PEOPLE ACT, 1951, SEC. 81 - CODE OF CIVIL PROCEDURE, 1908, ORDER 32, RULES 3 AND 4, ORDER 41, RULE 11, SEC. 92, ORDER 82 - COURT FEES ACT, 1870, SEC. 2(2), ART. 17(VI) - CONSTITUTION OF INDIA, ART. 26.
Fact of the Case:
The appellant, a worshipper of Sree Sree Kalimata Thakurani, filed an appeal against an order passed by the District Judge of 24-Parganas, dismissing his application for setting aside the election of three persons as members of the Kalighat Temple Committee and for certain amendments to the scheme. The appellant contended that the order was not appealable, the application for setting aside the election had become infructuous, and he had no locus standi to represent the deity in the appeal. The respondents contended that the order was appealable, the subsequent elections did not render the appeal infructuous, and the appellant could represent the deity.
Finding of the Court:
The court held that the order was appealable as a decree under Section 2(2) of the Code of Civil Procedure, 1908, and the appeal was maintainable under Order 41, Rule 11 of the Code. The court further held that the subsequent elections did not render the appeal infructuous as the appellant was challenging the right of the elected persons to be shebaits, which was a matter in controversy in the suit. The court also held that the appellant had the right to represent the deity in the appeal as there was no specific provision in Order 32, Rules 3 and 4 of the Code of Civil Procedure, 1908, requiring the removal of a next friend already appointed before a new appointment could be made.
Issues: 1. Whether the order passed by the District Judge was appealable? 2. Whether the application for setting aside the election had become infructuous? 3. Whether the appellant had locus standi to represent the deity in the appeal?
Ratio Decidendi: 1. An order amending a scheme for administration of a religious or charitable trust is appealable as a decree under Section 2(2) of the Code of Civil Procedure, 1908. 2. Subsequent elections to a temple committee do not render an appeal challenging the right of elected persons to be shebaits infructuous. 3. A person interested in an endowment has the right to represent the deity in a legal proceeding in the absence of any specific provision requiring the removal of a next friend already appointed.
Final Decision: The court dismissed the appeal, holding that the order was appealable, the application for setting aside the election had not become infructuous, and the appellant had locus standi to represent the deity in the appeal.
( 1 ) THIS is an appeal by Ranada Kanta Das, a worshipper of Sree Sree Kalimata Thakurani, for self and as the next friend of the said deity, against an order passed by the District Judge of 24-Parganas on May 12, 1964.
( 2 ) THE appeal arises in connexion with Title Suit No. 85 of 1949 instituted on December 5, 1949, under Section 92 of the Code of Civil Procedure, for proper management of the seva puja of Sree Sree Kalimata Thakurani and her associated deities and for proper management of the Debatter properties. The District Judge, in whose Court the suit was instituted, settled a scheme regarding the aforesaid matters, and, on appeal, the High Court made some amendments to the scheme. An appeal, however, was taken to the Supreme Court by the deity Sree Sree Kalimata Thakurani, and the Supreme Court, while dismissing the appeal, by its judgment dated November 1, 1961, in Sree Sree Kalimata Thakurani v. Jibandhan Mukherjee, made some modifications in the scheme and gave specific directions to the High Court for incorporation of the said modifications in the scheme. The High Court again by its judgment dated February 19, 1962, finally framed the scheme in the light of the directions of the Supreme Court.
( 3 ) ON November 30, 1962, Ranada Kanta Das, the appellant No. 2 in this appeal, filed an application before the District Judge in the said suit for setting aside the election of three persons namely, Probhat Kumar Mukherjee, Chhenu Lal Ganguly and Amiya Kumar Halder as members of the Kalighat Temple Committee and also for certain amendments to the scheme. The said application was opposed by Probhat Kumar Mukherjee, Chhenu Lal Ganguly and others. On May 25, 1963, an application was filed on behalf of the deity represented by the Kalighat Temple Committee for granting leave to one Gobinda Das Banerjee alias Prokas Chandra Banerjee, the then Secretary of the Kalighat Temple Committee, to represent the deity after striking out the name of the next friend Maniklal Banerjee who so long represented the deity as her next friend. The said application was allowed by the District Judge by Order No. 215 dated June 5, 1963. Thereafter on February 10, 1964, an objection to the aforesaid application of the appellant was filed on behalf of the deity, by Prokash Chandra Banerjee, Secretary of the Kalighat Temple Committee, while other objections were also filed by some of the shebaits even before. On March 31, 1964, the appellant filed an application of "preliminary objection" for vacating the aforesaid Order No. 215 dated June 5, 1963, on a finding that the said Prokash Chandra Banerjee had no locus standi to represent the deity in the said proceedings. The said application was directed by Order No. 251 dated May 6, 1964, to be heard on May 20, 1964, while the main application of the appellant was taken up for hearing on that very date and was also heard on May 7, 1964. By Order No. 253 dated May 12, 1964, the said application filed by the appellant on November 30, 1962, was dismissed on contest with costs. The application of the appellant dated March 31, 1964, was taken up for hearing on July 15, 1964, and by Order No. 264 dated July 17, 1964, the said application was also dismissed on contest.
( 4 ) THE appellant preferred this appeal in this Court on July 25, 1964, and, along with the memorandum of appeal, an application was also filed on the same day, for appointment of the petitioner as guardian ad litem (next friend ?) of the deity and for permission to prosecute the said appeal. This appeal was filed as an appeal against an original order and was admitted by this Court under Order 41, Rule 11 of the Code of Civil Procedure. The appeal with the application has now come up before us for hearing.
( 5 ) MR. Samarendra Krishna Deb, the learned Counsel for some of the respondents, raised a preliminary objection as to the maintainability of the appeal on the following grounds: (a) No appeal lies against the order
