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Mohunt Ratan Narayan Giri Vs. Ashutosh Nundy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal383
AppellantMohunt Ratan Narayan Giri
RespondentAshutosh Nundy and ors.
Excerpt:
- .....the present application on a case that he has been legally installed and is now the mahant. the learned judge rejected this claim and further expressed the opinion that, even if the claim were established, the application ought not to be allowed. we have heard interesting arguments on the question whether the appellant is the valid mahant of the math but in the view which we take of the case we expressly refrain from expressing any opinion. almost as soon as the appeal was opened, it became apparent that there would be the greatest difficulty in allowing the application. the main prayers of the plaintiffs are that the defendant should be removed from office, that he should submit accounts, that a new mahant should be appointed and a scheme framed. the effect of allowing this.....
Judgment:

Henderson, J.

1. This is an appeal against an order of the learned District Judge of Howrah rejecting an application made by the appellant under the provisions of Order 22, Rule 10, Civil P.C., and a consequential order made on the following day. The suit has been brought by the plaintiffs under the provisions of Section 92, Civil P.C., in connexion with a well known math known as the Bhote Bagan Math in the District of Howrah. After the institution of the suit, the defendant abdicated and the appellant was installed on the Gadi with certain ceremonies. He filed the present application on a case that he has been legally installed and is now the mahant. The learned Judge rejected this claim and further expressed the opinion that, even if the claim were established, the application ought not to be allowed. We have heard interesting arguments on the question whether the appellant is the valid mahant of the math but in the view which we take of the case we expressly refrain from expressing any opinion. Almost as soon as the appeal was opened, it became apparent that there would be the greatest difficulty in allowing the application. The main prayers of the plaintiffs are that the defendant should be removed from office, that he should submit accounts, that a new mahant should be appointed and a scheme framed. The effect of allowing this application would be that the defendant would go out altogether and it would be impossible to try the suit as framed.

2. Two reasons were put forward for pressing the claim. It was said that the appellant is interested in securing the appointment. The mere fact that he has been installed as a result of the abdication of the defendant does not give him any higher claim to the appointment than he had before. The learned Judge is certainly entitled to appoint him and will probably do so if he is satisfied that he is the most suitable candidate. But it would be a disastrous thing to hold that the discretion of the learned Judge in the matter could in any way be affected by a voluntary abdication by the defendant pendente lite. The second reason put forward was an apprehension on behalf of the appellant that his claim will be seriously affected if it is not disposed of in the present suit. The question of his claim is entirely irrelevant to the present suit, and I am unable to understand how it could affect his claim. The appellant consented to a certain order upon which two rules were disposed of. It was agreed between him and the plaintiffs that the District Judge would make an inquiry as to his alleged title and that if the alleged title was made out the receiver would be discharged. I do not apprehend that this could in any way support a plea of res judicata. But if it could, the appellant should never have been given his consent. The learned Judge refused to add the appellant as a party on the ground that his object was to alter the scope of the suit. It is much easier to establish a case to be added as a party than a case under Order 22, Rule 10. When the former has failed it would be quite illogical to allow the latter. Finally, it was contended that the appellant is interested in the scheme that is to be settled. He may be so, and if he is, the learned Judge will no doubt pay attention to any submission he desires to make but such interest would in no way depend upon his alleged installation.

3. The consequential order is not subject to appeal at all. But inasmuch as it was entirely without jurisdiction, we propose to set it aside in revision. It appears that the learned Judge thought that he was giving effect to the consent order. I am certainly not prepared to say that his discretion would, in any way, be bound by a consent order in a case under Section 92, Civil P.C. But be that as it may, the learned Judge has gone far beyond the scope of the consent order. That order is to the effect that the receiver will remain in possession. The order of the learned Judge is to the effect that a person who is not a party to the suit and who may be either a tenant or a trespasser is to be forcibly ejected from certain rooms. The receiver is undoubtedly the receiver : but if he wishes to obtain vacant possession he must take proper legal steps against the appellant. The appeal is accordingly dismissed. The appellant will pay the costs of the plaintiffs and we assess the hearing fee at four gold mohurs. The defendant will pay his own costs. In the exercise of our powers of revision we set aside the order No. 236 made by the learned Judge on 22nd July, last.

Sen, J.

4. The circumstances giving rise to this appeal briefly are as follows : On 31st August 1935, a suit was filed by certain members of the Hindu public under the provisions of Section 92, Civil P.C., with respect to a math known as the Bhote Bagan Math. The plaintiffs prayed for the removal of Triloke Chandra Giri from his office as mahant of the said math on the ground that he was not a fit and proper person to act as such and for the appointment of a new mahant. There was also a prayer that Triloke Chandra Giri should furnish accounts of his dealings with the property of the math. The plaintiffs further asked for the settling of a scheme of management, for a receiver and for other ancillary reliefs. On 7th November 1935, Triloke Chandra Giri abdicated and installed the appellant Ratan Narayan Giri as the mahant of the math. Thereupon, Ratan Narayan applied to the District Judge to be added as a party to the suit relying apparently on the provisions of Order 1, Rule 10. The District Judge refused that application. Against that order Ratan Narayan appealed to this Court. In dismissing, the appeal on the ground that it was not maintainable, the learned Judges remarked that Ratan may, if he were so advised, apply under Order 22, Rule 10, Civil P.C., to be substituted as a party if such application were maintainable in law. Ratan then made an application under Order 22, Rule 10 to be substituted in the place of Triloke on the footing that the interest of Triloke had devolved upon him as he had been installed as mahant by Triloke who had abdicated. The learned Judge dismissed this application on two grounds. First, he held that there was no valid installation of Ratan as mahant. Secondly, he held that in a suit under Section 92, Civil P.C., there should not be a substitution in circumstances like these. Against this decision Ratan has appealed to this Court.

5. I entirely agree with my learned brother in holding that there should be no substitution. I do not wish to express any opinion whatsoever on the question whether or not Ratan has been validly installed as mahant. My opinion, that there should be no substitution, is based on other grounds. The provisions of Order 22, Rule 10 make it quite clear that the Court is not bound in every case of devolution of interest to take action under the Rule. In a suit of this description under Section 92, Civil P.C., where reliefs are olaimed against the original mahant personally and where the Court is asked to appoint a new mahant it would not in my opinion, be a proper exercise of our discretion if we substituted as a party another mahant who has been appointed pendente lite. It seems to me that the abdication of Triloke and the appointment of Ratan are mere devices adopted by Triloke to evade any decree that might be passed against him, and to hamper the Court in the appointment of a mahant if it decided to appoint one. Further, it must be remembered, that in this case the subject-matter of the suit consists of various elements; it includes the removal of a mahant, the appointment of a new one, the framing of a scheme and the rendering of accounts. The devolution of the mahantship does not constitute such a devolution of an interest in the subject-matter of the suit as would justify action under Order 22, Rule 10. I hold therefore that the appellant's prayer for substitution under Order 22, Rule 10 must fail. There remains for consideration the other order of the learned Judge regarding the receiver matter. A receiver was appointed in this suit and he took possession of certain of the properties of the math. At that time Ratan was in occupation of certain rooms. He applied before the District Judge for a stay order against the receiver. That application was refused. Against that refusal Ratan moved this Court and there was an order passed by this Court by consent. The order was in these terms:

The learned District Judge will make an enquiry as to the alleged title of the applicant Ratan Narayan Giri to the office of the mahant. Pending the result of this enquiry the receiver will continue as interim receiver and his possession as at present, will not be disturbed. If the question of title is decided in favour of the applicant Batan Narayan Giri, the receiver will be discharged. If the applicant fails to prove his title then the receiver will remain in possession. The learned Judge is directed to hold the enquiry as early as possible.

6. The learned Judge has held that inquiry and has come to the conclusion that Ratan has no title. Upon that finding he passed an order on 22nd July 1939, directing Ratan to vacate the rooms of which he was in occupation. As I have said before, I do not wish to express any opinion regarding the title of Ratan. The learned Judge however appears to me to have gone entirely wrong in directing Ratan in these proceedings to vacate the rooms of which he is in occupation. This order of the learned Judge is not an appealable order but we propose to interfere with the order in the exercise of our revisional power as it is an order made without jurisdiction. The terms of the consent order do not provide for any direction upon Ratan in these proceedings to vacate the rooms. All that the parties agreed to was that if Ratan failed to prove his title the receiver was to remain in possession. Ratan never agreed to vacate possession. The Court acted without jurisdiction when it ordered in these proceedings that Ratan should vacate the rooms of which he is in possession. I therefore agree with my learned brother that this order should be set aside.


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