Mr. Veerendr Singh Siradhana, J. - The matter comes up on an interim application No.6088/2016, instituted under Order 22, Rule 3 (2) read with Section 151 CPC, with a prayer for dismissal the above captioned appeal as having abated.
2. Another application i.e. Interim Application No. 20064/2016, has been instituted under Order 22, Rule 3 CPC, with a prayer to take on record the legal representatives of appellant-Uttamchand Paliwal, who died on 23.05.2016.
3. Having regard to the nature of the controversy raised herein, both the applications are being adjudicated upon by this common order.
4. Learned Senior Counsel, Mr. S. Kasliwal, retreating the stand in the application under Order 22, Rule 3 (2) read with Section 151 CPC, with a prayer for dismissal of the instant appeal for having abated, asserted that Late Shri Narain Lal alone was accorded permission by the Assistant Commissioner, Devasthan, Jaipur, to institute the instant proceedings under Section 38 of the Rajasthan Public Trust Act, 1959 (for short "the Act of 1959").
5. It is further contended that Late Shri Narain Lal, Shri Moolchand, Shri Kesari Chand and Shri Mangilal, were jointly granted permission by the then Advocate General of Rajasthan on 10.09.1955 to institute the suit proceedings against the respondent No. 1. However, before the suit proceedings could be instituted, said Mangilal died and remaining three alive individuals aforesaid instituted the suit proceedings (suit No.2/1956), under Section 92 CPC on 6th March 1956. Pending the suit proceedings, Shri Kesari Chand also died.
6. An objection by the respondent as to the maintainability of the suit proceedings, in view of death of the persons aforesaid, was declined by the trial Court. However, the objection was sustained by this Court as well as by the Apex Court of the land, as would be evident from the opinion in the case of Narain Lal & Ors. v. Sunder Lal (Dead) & Ors. reported in AIR 1967 SC 1540. Be that as it may, the Supreme Court while upholding the objections observed that "the judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from Advocate General or Collector."
7. In the meantime, the Act of 1959 came into force and in view of Section 44, the provisions of Section 92 and 93 ceased to apply to public trust. Mr. Narain Lal applied for permission before the Assistant Commissioner, Devasthan, under Section 38 of the Act of 1959. Vide order dated 23.12.1970, the Assistant Commissioner, Devasthan, directed Mr. Narain Lal to apply to the Competent Court. Permission was granted to Mr. Narain Lal on 23.12.1970 to file the present petition under Section 38 of the Act of 1959. On death of Shri Narain Lal, on 06.12.1986, an application for substitution of his legal representatives though was opposed but the same was granted. Accordingly, Bhagwan Das Jain Palliwal, Uttamchand Palliwal and one daughter Smt. Tara Devi Jain, were substituted and the order dated 17.03.1987 granting permission to bring on record the legal representatives of Late Shri Narain Lal, was challenged before this Court in S.B. Civil Revision Petition No.324/1987 decided on 10th August 1987, upholding the order.
8. According to the learned counsel for the non-appellant, Section 38 of the Act of 1959, does not give right to any individual to initiate proceedings. One is required to approach the Assistant Commissioner, Devasthan, to seek permission to approach the Court. Further, such a permission cannot be granted unless he has interest in public charitable trust.
9. Referring to the phrase "Person having interest" as defined under Section 2(9) of the Act of 1959, learned counsel would submit that the meaning of the expression is different and contrary to "Legal representatives" as defined under Section 2(11) CPC. Moreover, the order dated 17th March, 1987, confirmed in the Revision Petition aforesaid, was made under the provisions of Order 1, Rule 10 CPC, whereas the instant application seeking impleadment of the legal representatives to the proceedings is under Order 22, Rule 3 , and therefore, view of the Coordinate Bench as well the adjudication in the revision petition by this Court is of no help to sustain the application of the applicants under Order 22, Rule 3 CPC.
10. In the backdrop of the provisions of Section 3 and 4 of the Places of Worship (Special Provisions) Act, 1991 (for short ''the Act of 1991''), learned counsel asserted that Late Shri Narain Lal and his legal representatives so also the present applicants belong to Swetambhar Sect of the Jain religion whereas the management of the non-appellant is in the hands of Digambar Samiti of Jain religion, and therefore, the interest of the applicants are contrary and adverse. Hence, their application deserves to be dismissed. Furthermore, after commencement of the Act of 1991, the application cannot be entertained in the face of text of Section 3 and 4. In support of his submissions, reliance has been placed on the opinion of the Supreme Court in the case of Papann and Anr. v. State of Karnataka and Ors.: 1996 (1) SCC 291, Bishambhar Nath and Anr. v. Raghunath Prasad Sharma and Anr.: AIR 1971 Allahabad 207, Gheesu Dass v. Narsingh Kansara & Ors.: 1999 (3) WLC (Raj.) 586, Abdul Karim Khan and Ors. v. Municipal Committee, Raipur: AIR 1965 SC 1744, Mehta Charity Trust Pali & Ors. v. Gulam Rasool & Ors.: RLR 1986 695, Chitivalasa Jute Mills v. Jaypee Rewa Cement: 2004 (3) SCC 85, Smt. Multivahuji v. Smt. Kalindivahuji & Ors.: AIR 1994 Gujarat 42 and Narain Lal & Ors. v. Sundar Lal (dead) & Ors.: AIR 1967 SC 1540.
11. Per contra; Mr. S.C. Goyal, learned counsel appearing for the applicants, reiterating the stand in the application under Order 22, Rule 3 , would submit that the objection raised resisting the application while seeking dismissal of the appeal for having abated, is absolutely without any factual foundation for the reason that identical objections were raised, considered and adjudicated upon in the very same proceedings, as would be evident from the order dated 17th March, 1987, which was confirmed in Revision Petition No. 324/1987, decided on 10th August, 1987. Learned counsel would further submit that a Coordinate Bench of this Court taking note of identical contentions, did consider the opinion of the Supreme Court in the case of Narain Lal and Ors. (supra) and declined the objections confirming the order dated 17th March, 1987, wherein an application instituted under Order 22 read with Order 1, Rule 10 CPC, was allowed.
12. According to the learned counsel, in the proceedings where impleadment is sought by legal representatives under Order 22, Rule 3 CPC, the parties step in the sue of original litigants whereas under Order 1, Rule 10 CPC, the scope and power the Court is much wider. Therefore, the objection to the application is without any factual foundation. Learned counsel relied upon the adjudication made by a Coordinate Bench of this Court in the revision petition decided on 10th August, 1987 and as also placed reliance on the opinion in the case of Charan Singh v. Darshan Singh: 1975 SC 371, wherein the Supreme Court observed that the suit proceedings filed in a representative capacity would not abate on death of one of the plaintiffs.
13. Heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
14. Indisputably, two suit proceedings instituted before the trial Court were consolidated vide order 10th August, 1987. It is also not in dispute that Late Shri Narain Lal was accorded permission to institute the suit proceedings by the Assistant Commissioner, Devasthan. The fact that on the death of Shri Narain Lal, his legal representatives were taken on record on an application instituted under Order 22 and Order 1, Rule 10 CPC, declining similar objections, is also reflected from the order dated 17th March, 1987. The revision petition instituted assailing the order dated 17th March, 1987, was declined by this Court vide order dated 10th August, 1987. At this juncture, it will be relevant to consider the text of the order dated 10th August, 1987, wherein it was observed in no uncertain terms that Section 92 CPC and Section 38 as well as 40 of the Act of 1959, are not pari-materia. This Court specifically held that the rights of the parties is any person having interest in public trust after obtaining permission of the Assistant Commissioner, Devasthan, can file the petition under Section 40 of the Act of 1959, for grant of relief as detailed out under Clause 2 of Section 40 of the Act of 1959. This Court while dealing with the very same objections in the backdrop of the adjudication by the Supreme Court in the case of the Narain Lal & Ors. (Supra), observed that the opinion has no application to the singular facts and circumstances of the case at hand for institution of a suit and continuation of the suit or petition are altogether different matters. Hence, once a permission has been obtained and a petition or a suit has been instituted, it falls within the perview of continuation of suit proceedings. Neither Section 92 CPC nor Section 38 of the Act of 1959, contemplate that the continuation of the suit or petition, the leave of the Court or the leave of Assistant Commissioner, is necessary.
15. This Court further held that in case of death of one of the petitioners or sole petitioner, the petition moved under Section 40 of the Act of 1959, does not abate. Any party having faith and interest in the religion may pray to the Court for his/their impleadment as party to the proceedings to continue the proceedings.
16. In the case of Bishambhar Nath and Anr. (Supra), an application under Order 22, Rule 4 was declined in the appeal arising out of suit under Section 92 CPC in the backdrop of the fact that legal representative would mean a person who in law represents the estate of a deceased person. In the instant case at hand, the petition has been instituted not for any personal interest but for the common cause and in larger interest of the management of the trust and that too under Section 38 of the Act of 1959.
17. In the case of Gheesu Dass (Supra), the Court dealt with the issue in the backdrop of the factual matrix wherein "person having interest" was considered having interest adverse to the trust and claiming such property to be his own. Thus, the factual matrix of the case at hand is entirely different and distinguishable for the case referred to and relied upon.
18. In the case of Abdul Karim Khan and Ors. (Supra), it was again a matter wherein the person staked claim adverse to the interests of the public trust.
19. In the case of Mehta Charity Trust Pali & Ors. (Supra), the adjudication was made in the backdrop of the factual matrix wherein the claim was raised as to the property of the trust as their own. In the case of Chitivalasa Jute Mills (Supra), the issue that was dealt with by the Supreme Court was as to consolidation of two suits. In the case of Smt. Mutlivahuji (Supra), it was observed that where it appears that there is sufficient unity or similarity in the matters in issue in the suits or that the determination of the suits rests mainly on common question, it is convenient to have them tried as analogous cases. The opinion of the Supreme Court in the case of Narain Lal and others (Supra), has no application to the case at hand for what has been observed by the Co-ordinate Bench of this Court while adjudicating upon the matter in the revision petition vide order dated 10th August 1987; in the factual matrix of the case at hand.
20. For the reasons and discussions aforesaid, the application instituted on behalf of the applicants (IA No.20064/2016) for impleadment to bring on record the legal representatives of Late Shri Uttamchand Palliwal, merits acceptance and is allowed.
21. Amended cause title enclosed with the application shall be taken on record and arranged at the appropriate place of the record of the case file.
22. Misc. application (IA No.6088/2016), under Order 22, Rule 3 (2), seeking dismissal of the appeal for having abated; is rejected.
23. Misc. Application (IA No.14301/2016), seeking dismissal of the captioned appeal shall be heard and adjudicated upon along with the appeal.
