The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7381 of 2022 (Through Hybrid mode) Mahanta Kousal Kishore Das …. Petitioner -versus- Sri Laxminarayan Temple, Ganjam and others …. Opposite Parties Advocates appeared in this case: For petitioner : Mr. S. S. Rao, Senior Advocate For opposite parties
Legal Reasoning
: Mr. A. K. Nath, Advocate Mr. G. N. Mishra, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------------- Date of hearing and judgment : 05.07.2023 ------------------------------------------------------------------------------------- 1. Mr. Rao, learned senior advocate appears on behalf of petitioner. He submits, impugned is order dated 28th December, 2021 Page 1 of 7 // 2 // passed by the Commissioner in allowing application made under order XXIII rule 1-A in Code of Civil Procedure, 1908, transposing opposite party nos.8 to 10, of whom opposite party no.9 subsequently died. 2. He submits, his client was declared hereditary trustee on basis of unregistered willnama dated 24th May, 1990, executed by Mahant, Guru Gobardhan Das. The appointment was made under section 30 in Odisha Hindu Religious Endowments Act, 1951. In the proceeding, there was therein opposite party no.4 (Abhimanyu Padhi), who did not contest but subsequently made application under order IX rule 13 for setting aside the order, made ex parte against him. Said Abhimanyu Padhi thereafter filed memo saying he does not want to prosecute the application for setting aside the order, dated 9th October, 2007. Herein opposite party nos.8 to 10 had got themselves impleaded in the application on 22nd March, 2014 upon direction that they would be entitled to participate in the proceeding from the stage it was on that
Decision
day. During pendency of the writ petition opposite party no.9 died and petitioner’s right to sue said opposite party survived against opposite party nos.8 and 10. WP(C) no.7381 of 2022 Page 2 of 7 // 3 // 3. Opposite party nos.8 to 10 did not have locus standi for being transposed in place of Abhimanyu Padhi, in the setting aside application. This is because Abhimanyu Padhi had a personal claim of entitlement to be appointed as hereditary trustee as against his client’s claim. His ground for not participating in the hearing was his illness. When said Abhimanyu Padhi abandoned his claim, there remained no contest to his client’s claim, declared by aforesaid order dated 9th October, 2007. In the circumstances, impugned order dated 28th December, 2021, allowing the transposition of present opposite party nos.8 and 10, purportedly on ground of securing interest of the religious institution, requires interference as made illegally and with material irregularity. 4. Mr. Nath, learned advocate appears on behalf of the Commissioner. Mr. Mishra, learned advocate appears on behalf of opposite party nos.8 and 10. 5. Mr. Mishra draws attention to enquiry report dated 17th December, 2011 made by the Additional Assistant Commissioner. He submits, upon death of Mahant, Guru Gobardhan Das there was inventory made. Inter alia, unregistered will dated 23rd May, 1990 WP(C) no.7381 of 2022 Page 3 of 7 // 4 // scribed on stamp paper was recovered. In the inventory, petitioner participated and put his signature. It is, thereafter that petitioner produced alleged willnama dated the next date, i.e., 24th May, 1990 scribed on plain paper, to claim thereby he had been nominated as Chela. It is on basis of a suspicious document that petitioner obtained appointment as hereditary trustee from the Commissioner, in the proceeding where the Chela nominated by the recovered will (Abhimanyu Padhi) had not participated because he was unwell. Subsequently, Abhimanyu Padhi, though filed the proceeding for setting aside the order made ex parte against him but for undisclosed reasons filed memo abandoning it. In the circumstances, in best interest of the institution, his clients were duly and correctly transposed in the application, for prosecuting the cause that contest in the section 30 proceeding was prevented, to have the order of appointment set aside and the claim re-adjudicated, on the issue regarding who could be hereditary trustee, if at all. 6. It appears from aforesaid that there is allegation of the willnama dated 24th May, 1990 being a suspicious document. In event, the document is found to be not genuine, there will not be a claimant WP(C) no.7381 of 2022 Page 4 of 7 // 5 // for being appointed as hereditary trustee because opposite party no.4 in the setting aside application has abandoned his claim. In the circumstances, sub-section (3) in section 30 would operate. For purpose of ascertaining the correct position there must be adjudication and in applying the law for administering the religious institution, it must be said as for purpose of protecting interest of it. 7. We have perused said report dated 17th December, 2011 and find that petitioner participated in the enquiry. There is no dispute that petitioner was present at the inventory, made on death of Mahant Guru Gobardhan Das. There was recovery of unregistered will dated 23rd May, 1990 scribed on stamp paper naming Abhimanyu Padhi as Chela. There was, however, no discovery of unregistered willnama dated 24th May, 1990 scribed on plain paper, on basis of which petitioner subsequently obtained appointment as hereditary trustee on no contest by Abhimanyu Padhi. 8. Abhimanyu Padhi made application under order IX rule 13. It is a proceeding within meaning of section 141 in Code of Civil Procedure, 1908. Rule 43 in Odisha Hindu Religious Endowments Rules, 1959 make applicable, inter alia, provisions of the Code of Civil WP(C) no.7381 of 2022 Page 5 of 7 // 6 // Procedure, 1908 to all proceedings before the Commissioner. The setting aside application was before the Commissioner. It being a proceeding within meaning of section 141, the Code mandates procedure provided in it with regard to suits to be followed as far as it can be made applicable. In the circumstances, rule 1-A in order XXIII squarely applies to the proceeding. 9. Order XXIII rule 1-A provides for when transposition of defendants as plaintiffs may be permitted. The provision includes abandonment by a plaintiff. It has already been noticed that present opposite party nos.8 and 10, including opposite party no.9, since deceased had got themselves impleaded as opposite parties in the setting aside application, on 22nd March, 2014. Hence, in view of applicant opposite party no.4 in the section 30 proceeding, said Abhimanyu Padhi, having abandoned his cause for setting aside the order passed ex parte against him, present opposite party nos.8 and 10 had applied to continue the cause of setting aside, in interest of the institution, for enquiry regarding appointment of hereditary trustee. That is possible under the procedure provided in the Code, as to be WP(C) no.7381 of 2022 applied to the proceeding before the Commissioner since, as aforesaid, Page 6 of 7 // 7 // the setting aside application stands covered by meaning of miscellaneous proceeding in section 141 of the Code. 10. Regarding petitioner’s contention of opposite party nos.8 and 10 not having locus standi to seek either setting aside of said order dated 10th October, 2007 nor, if successful, to seek adjudication under section 30, same is to be answered by the Commissioner, if such question arises in the proceedings. 11. In view of above discussion we do not find merit in the challenge. 12. The writ petition is dismissed. ( Arindam Sinha ) Judge ( S. K. Mishra ) Judge Page 7 of 7 Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: OHC Date: 05-Jul-2023 17:43:40 WP(C) no.7381 of 2022