CM(M) No.1282/2010 & CRP No.145/2011

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CM(M) No.1282/2010 & CM No.18272/2010

SHIV MANDIR TRUST

..... Petitioner

Through:

Mr.Alok Kumar, Adv.

versus

GOPI CHAND RATHI & ORS ..... Respondents

Through:

Mr.Chandan Kumar, Adv.

AND

C.R.P. 145/2011

GOPI CHAND RATHI & ORS ..... Petitioner

Through:

Mr.Chandan Kumar, Adv.

versus

SHIV MANDIR TRUST

..... Respondent

Through:

Mr.Alok Kumar, Adv.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1

Two orders have been impugned order before this Court. The

first order is dated 21.8.2010 and the second is the order dated

16.8.2011. Vide order dated 21.8.2010 the first appellate court had

dismissed the appeal against the order dated 24.5.2010 vide which the

application filed by the plaintiff seeking relief under Order 39 Rule 1 &

2012:DHC:3516

CM(M) No.1282/2010 & CRP No.145/2011

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2 of the Code of Civil Procedure (hereinafter referred to as the Code)

had been declined. The impugned order had noted that this petition is

primarily a petition under Section 92 of the Code and necessary

permission not having been obtained the present suit in these

circumstances is not maintainable. Impugned order had accordingly

declined the relief sought for by the plaintiff under Order 39 Rule 1 & 2

of the Code. Second order dated 16.8.2011 had rejected the prayer

made by the defendant under Order 7 Rule 11 of the Code whereby the

defendant had prayed that since this suit is a representative suit and the

mandatory provisions of Section 92 of the Code not having been

complied with, the plaint is liable to be rejected, had been declined.

2

Record shows that the present suit has been filed by the sole

plaintiff namely Shiv Mandir Trust through its manager Kishore Saini.

Averments made in the plaint are contained in 28 paragraphs. This is a

suit for perpetual injunction, declaration, mandatory injunction as also

for rendition of accounts. Contention in the plaint is that the plaintiff is

a registered society; object of the society is to manage the temple of

Lord Shiv situated at Brahmpuri along with other connected temples; the

society also has a charitable object to open and run schools, libraries; to

2012:DHC:3516

CM(M) No.1282/2010 & CRP No.145/2011

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carry out its aims and objects a managing committee has been

constituted; present suit has been filed through its manager. Futher

contention is that the plaintiff through its managing committee has been

appointing the Pujari of the temple and currently it has appointed Pandit

Chauth Mal Sharma as Pujari since January 2005. The affairs of the

temple of Lord Shiva also known as the temple of “Mauni Baba” ; has a

duly elected managing committee and one of the members thereof has

been authorized to do all acts for and on behalf of the plaintiff society;

no one else on behalf of the managing committee has been authorized to

collect money on behalf of the managing committee. Accounts are

maintained by the treasurer. Defendant no.1 is a retired police official;

in January 2007 his membership was cancelled, however, to gain control

over the society he started manipulating things with the active

connivance of certain other persons i.e. his supporters and henchmen.

He tried to transgress upon the property of the temple; kalandra

proceedings were also initiated. Further contention being that between

October, 2004 to middle 2009 defendant no.1 and his companions

continued to make attempts to grab the properties of the plaintiff society.

Defendants no.2 to 13 have formed themselves into a registered society