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S.B.CIVIL FIRST APPEAL NO.1/2002
(Hajari Ram Joshi Vs. State of Rajasthan & ors.)
Date of Order :: 25th May 2009
HON’BLE MR.JUSTICE DINESH MAHESHWARI
Mr.A.K.Singh for the applicant
Mr.Sanwal Ram Choudhary for the respondent No.1
Mr.S.K.Maheshwari for Mr.Sunil Mehta for the respondent
No.3.
….
Learned counsel for the parties have been heard on the
application dated 27.11.2007 as moved in this case for
substitution of the applicant as appellant.
This appeal has been preferred against the order dated
04.12.2001 as passed by the Additional District Judge No.1,
Bikaner in Civil Misc. Case No.179A/1998 that was dealt with
by the learned Additional District Judge on an application
moved by the Assistant Commissioner Devasthan, Bikaner
under Section 38 of the Rajasthan Public Trusts Act, 1959
(hereinafter referred to as ‘the Act’/’the Act of 1959’) in relation
to a Public Trust registered in the name of ‘Shri Bhajan Giri
Sewa Samiti Trust, Gangashahar Road, Bikaner’ with Hajari
Ram (the appellant), Mohanlal, and Shanti Giri having been
appointed as the trustees.
There had been a complaint made by one Lalji Maharaj
Sewa Samiti, Bikaner in relation to the aforesaid trustees and
it was alleged that the trust property was not being properly
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managed and administered whereupon the Devasthan
Department carried out the necessary enquiry and directed the
said complainant to take up the proceedings per Section 38
(1) of the Act of 1959. However, for the said complainant
failing to take up the requisite proceedings, the Assistant
Commissioner Devasthan, Bikaner moved the application
under Section 38 (2) of the Act of 1959 seeking necessary
directions and orders of the Court per Section 40 of the Act.
The non-applicants No.1 Hajari Ram (the appellant) and the
non-applicant No.2 Mohanlal denied the allegations and raised
objections against competence of the application so moved by
the Assistant Commissioner.
The learned Additional District Judge No. 1, Bikaner,
after framing necessary issues and taking the evidence led by
the parties held the application competent and further held that
all the three trustees had been mismanaging the affairs of the
Trust, had also transferred the trust property, and permitted
the same being taken over in possession by other persons
unauthorisedly. Finding the allegations of irregularities and
misuse of the trust property proved and the trustees having
functioned against the interests of the Trust, the learned
Additional District Judge, by the impugned order dated
04.12.2001, ordered removal of the said three trustees and
appointed the Assistant Commissioner, Devasthan Bikaner as
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the receiver to manage the trust property and then to have the
new trustees appointed in accordance with the constitution of
the Trust; and also issued the ancillary directions for
maintaining of the accounts by the receiver.
The order so passed by the Court on 04.12.2001 being
an appealable one per sub-section (3) of Section 40 of the Act
of 1959, the non-applicant trustee Hajari Ram proceeded to
challenge the same by way of this appeal.
This appeal was initially filed as a civil miscellaneous
appeal but then, an application was moved on behalf of the
appellant for treating it as a regular first appeal under Section
96 of the Code of Civil Procedure (‘CPC’) read with Section 40
(3) of the Act of 1959. On 20.12.2001, this Court allowed the
said application while keeping the rights of the respondents
reserved for raising objections. It is made clear that in view of
the limited issue regarding substitution of the applicant in
place of the deceased appellant being addressed to in this
order, the question of competence of the present one as a
regular first appeal is kept open to be dealt with at the
appropriate stage.
In this appeal, show cause notices were issued and
thereafter, the appeal was admitted for consideration on
05.04.2007 and was ordered to be placed for hearing in due
course. The present application came to be moved on
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27.11.2007 by the applicant Dev Kishan with the submissions
that he is son of the appellant Hajari Ram who had expired on
08.06.2007. The applicant would assert that he had been
engaged in Sewa Puja with the appellant during his life time
and is continuing to do so after his demise. The applicant
would further assert that he has been appointed as life time
member of the trust in place of his father and has also been
appointed as Pujari by the Mahant and the Chairman of the
Trust on 02.08.2007. It has been prayed with reference to
Order XXII Rule 3 CPC that the applicant may be ‘treated’ as
appellant in this appeal. Learned counsel for the applicant has
referred to and relied upon the decision of the Hon’ble
Supreme Court in the case of Rikhu Dev, Chela Bawa Harjug
Dass Vs. Som Das (Deceased) through his Chela Shiama
Dass: AIR 1975 SC 2159 and that of this Court in the case of
Suraj Mal and others Vs. Khumani Lal and others: 2002 (4)
WLC (Raj.) 755.
During the course of submissions on this application,
the learned counsel for the applicant placed on record an
order dated 19.05.2008 as passed by the Assistant
Commissioner, Devasthan, Bikaner in Case No.1/2008
whereby the name of the applicant Dev Kishan was permitted
to be substituted as the trustee of the said Trust. Looking to
the contents and frame of the application as moved and the
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contents of the order dated 19.05.2008, the Assistant
Commissioner, Devasthan was required to clarify the present
status of the said Trust; and the learned counsel appearing for
the Devasthan Department, after taking instructions, has made
submissions that the applicant Dev Kishan has been
appointed as a trustee and he continues as such; and that the
Trust is in management of the trust property.
Though the application dated 27.11.2007 has been
moved with reference to the provisions of Order XXII Rule 3
CPC and looking to the subject matter of the appeal, it is
difficult to accede to the submission that the applicant could
be substituted as a legal representative of the deceased but
then, for the observations as made by the Hon’ble Supreme
Court in Rikhu Dev’s case (supra) and further looking to the
findings as recorded in the order dated 04.12.2001 coupled
with the fact that the applicant is said to have been appointed
and recognised as a trustee of the Trust, it does appear
appropriate, per the principles of Order XXII Rule 10 CPC, that
he be substituted as appellant in place of the deceased
appellant to continue with this appeal.
In the case of Rikhu Dev (supra), the Hon’ble Supreme
Court has pointed out the operation of the provisions of Order
XXII Rule 10 CPC thus:
“8. This rule is based on the principle that trial of a
suit cannot be brought to an end merely because
6the interest of a party in the subject matter of the
suit has devolved upon another during the
pendency of the suit but that suit may be
continued against the person acquiring the
interest with the leave of the Court. When a suit is
brought by or against a person in a representative
capacity and there is a devolution of the interest of
the representative, the rule that has to be applied
is Order 22, Rule 10 and not Rule 3 or 4, whether
the devolution takes place as a consequence of
death or for any other reason. Order 22, Rule 10,
is not confined to devolution of interest of a party
by death; it also applies if the head of the mutt or
manager of the temple resigns his office or is
removed from office. In such a case the successor
to the head of the mutt or to the manager of the
temple may be substituted as a party under this
rule. The word ‘interest’ which is mentioned in this
rule means interest in the property i.e., the subject
matter of the suit and the interest is the interest of
the person who was the party to the suit.
The Hon’ble Supreme Court further observed, inter alia,
that,-
”10…….In Thirumalai v. Arunachella, AIR 1926
Mad 540 the Court held that a succeeding
trustee of a trustee who filed a suit and thereafter
died during its pendency was not legal
representative of the predecessor in office. The
Court said that where some of the trustees die or
retire during the pendency of a suit and new
persons are elected to fill their place, it is a case
of devolution of interest during the pendency of a
suit and the elected persons can be added as
parties under Order 22 Rule 10 notwithstanding
that the period of limitation for impleading them
had expired.
11. In Roshan Lal v. Kapur Chand, AIR 1960
Punj 382 the Court took the view that newly
appointed trustees are not legal representatives
of the trustees who had filed the suit and
thereafter died during the pendency of the suit,
that they can be added as parties under Order
722, Rule 10 notwithstanding the fact that the
period of limitation for an application to implead
them under Order 22, Rule 3 had elapsed. The
Court said (at p. 384):
”Such an application is obviously not an
application under Order 22, Rule 3, Civil
Procedure Code.”
12. We also see no reason why the High Court
should not have granted leave to the appellant to
prosecute the appeal.”In view of the observations above and looking to the
subject matter of this appeal and the status of the applicant, it
appears appropriate to permit him to continue with this appeal
as appellant under Order XXII Rule 10 CPC.
The application dated 27.11.2007 is, accordingly,
allowed subject to the observations above; the applicant is
permitted to continue with this appeal; and, for that purpose,
is ordered to be substituted as appellant in place of the
deceased appellant.
Amended cause-title already filed is taken on record and
be placed appropriately.
Office to proceed.
(DINESH MAHESHWARI), J.
MK