Sanjay Goswami v. Bara Mandir Trust Committee

1. The ahovernentioneci two revision petitions have been filed b' the petitioner under Section 115 CPC against orders dated 79th August, 201.3, one in a suit for possession, mesne profits and perpetual injunction aid the other in a suit for permanent and mandatory injunction. By way of bdth the orders, the petitioner's applications for impleadment under Order 1 Rule 1 0(2) CPC in both the matters have been dismissed. CRP Iv. 207.2013 & CRP No. 2092013 Page I of 6 2013:DHC:7676

2. The relevant facts for the purpose of adjudication of the present petitions are same and for the sake of brevity, the same are taken from One of the petitions i.e. CRP No.207/2013. The brief facts are as under: i. The respondents filed an Original Suit No. 133/20 10 for possession, mesne profits and perpetual injunction with respect to immovable property being in No. 577, Bara Mandir, 1<atra Neel, Chandin:i Chowk, Delhi-O[6] on the grounds that, the respondent No. 2, Shri. Krishnan Gopal Goswarni wa the reigning Sarvesarva Gaddi Nashin Mahant of the Trust. ii. Thereafter the written statement was filed on 1s[1] August, 1993, the deceased defendant Shri Shyarn Kishore traversed the plaintiff's claims and propounded that he himself was the only Mukhtyar-e-Aarn duly appointed by the then real Mahant, late Goswarni Jugal Kishor Ji via a registered deed of General Power of Attorney dated 18tFi March, 1956. iii. During the pendency of O.S No.133/2010, the petitioner moved an application under Order 1 Rule 10 of the CPC On 12th August, 2011 for impleadment as defendant in the' matter mainly on the reason that the plaintiff did not file the case against the petitioner to mislead the Court in order to obtain favourable order as the plaintiff has filed the suit aginst the attorneys of the petitioner.

3. In nutshell the case of the petitioner providing for the allegedproperty chain is as follows: the Ladliji Ka Bada Mandir had been founded 00 years back by Goswarni Bansidhar J@ Bansi Ali Ji Maharaj who wa the first CRP No.207/20]3 & CRP No. 2092013 1Dcige 2 of 6 Sarvesarva Gaddi Nashin Mahant, and after his death the father-son succession to MahantshiP would follow. Thereafter Goswami Radha Prasad ii who according to the registered Will of Goswarni Ladli Prasad Ji became the Sarvesarva Gaddi 'Nashin Mahant. He then constituted a trust named Bara Mandir Trust Committee by a registered Trust Deed dated 22 July 1925 and appointed 6 trustees with his eldest son Goswami Jugal Kisbore as the helm of day-to-day affairs of the said Trust, who later on became a,: Mahant vide gift deed date 7th January, 1931. Goswarni Jugal Kishore, invested the then living Shri Shyam Kishore Ji, respondent No.6 with a General Power of Attorney b y registered deed dated 18th March, 1956 t look after the affairs of the property and passed away on 1st January, 1987 after having executed a will on 27th October, 1986 in favor of revisionist who then by vi1ue of that became the Sarvesarva Gaddi Nashin Mahnt. Thereafter Goswami Jugal Kishore' s grandson, the petitioner, Sañjay GoswalTfli executed a General Power of Attorney dated 9' July, 1987.

4. After the death of Sh. Shyam Kishore Ji on 25 t[1] February, 1999, his solegal representative took over his duties, however resigned the jb on 29th March, 2010 on account of being restrained by the order passed n the 1 2t[1] December, 2009 by the Delhi High Coup in CM(M) No.602/2007, linkable to OS No.13 3i'20 10 from interfering with the ac.ts/cele'rat10nS relating to the disputed property, by respondent No. 2 Krislmai Gopal Goswarni. in the meanwhile, the petitioner appointed Sh. Rajiv Shrma and Sb. Lalit Mohan Kalia as co-pujarees by deed dated 30th March, 2010 and sent them letters dated 2 1 January, 2010 to bring into effect their appointment. CRP No.2072O]3 & CRP No.209/2O]3 /I

5. The case of the respondents before the learned Trial Court oil the other hand was that the applicant/petitioner is neither a necessary or a proper party in the present suit. The application under Order 1 Rule 10 CPC has been filed by the petitioner in collusion and connivance with the defendants in the suit as the petitioner had knowledge about the pendeicy of the present suit and other litigation going on between the parties. Applicant filed a suit for declaration with consequential relief of permanent injurction against the respondent No.2 Sh. Krishan Gopal and others with the prayer that a decree of declaration may be passed declaring the Mandir i.e. the suit property and independent property having no concern or connection with the trust got registered by the respondent No.2 and others. The said suit was dismissed in default vide order dated 8th March, 2000 by the cou rt. The malafide of the applicant is clear from the fact that the applicant/petitioner had submitted that defendants therein were in possession of the suit property with the permission of the applicant/petitioner, however it is surprisi1g that the defendants have not informed the applicant about the pendency p the present suit and other litigation. Sb. Chand Kishore filed an appeal before the learned ADJ, against judgment and decree dated 23hi March, 2004 and 31st March, 2005 wherein Sh. P.D. Gupta made a statement before tle court on 2uid January, 2008 that the defendants therein would expedite the proceedings in the present suit and would not seek unnecessary adjournment and shall not recover the rent from their tenant. On the said date of hearing Sh. Chand Kishore paternal uncle of the applicant/petitioner was alsopresent in the court and admitted the statement of his counsel but now by moving the present application the applicant is trying to step in the shoes of the defendants therein. The applicant/petitioner is grand son of Late Sh. Jugal CRP No.207/2013 & CRP No.209/2013 Kishore and is permanent resident of Jaipur having no right, title.or interest in the suit property.

6. The learned Trial Court while dismissing the said application vide the impugned order, reasoned as under: "The present suit is not a suit for declaration where the applicant herein would have been a necessary party. It is well settled that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. It is equally well established that two tests are to be satisfied for determining the question who is a necessary party. Tests are: (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. in the instant case, the plaintiff trust is seeking to be the owner and licensor of the suit property and so is the applicant herein. But in a suit for possession, mesne profit and perpetual injunction the title of the applicant or declaration as to the title of the applicant as to the suit property is not to be made. Further, the issue of mahantship of Sh. Krishan Gopal Goswarni is also not in issue as it is the trust which has filed this suit. There is nothing on record to show that the applicant was not aware of the filing of the present case. Further as claimed by the applicant if the defendants were agents of the applicant then obviously he was well aware of the various suits filed by the plaintiff trust against the defendants/agents of the applicant, thus, this application is barred by delay and laches. The suit filed by the applicant against the plaintiff trust and Sh. Krishan Goptal Goswami was dismissed long time back however same will not effect the status of the applicant as a defendant but in the facts of the present case, the applicant is neither a necessary nor a proper party."

7. Having considered the pleadings, documents and impugned orders, I am of the view that the impugned orders are well reasoned and I ath not inclined to interfere with the same in view of admitted facts in the matter. CRP No.207/2013 & CR? No.209/2013 ///

8. Both the main petitions and pending applications are dismissed.

JUDGE NOVEMBER 28, 2013 CRPI'Jo2O72O]3 & CR? No.209/2013 Page 6 of[6]