# Sri Girraj Sewak Samiti, Bara through Mantri & Anr v. Sri Girraj Sewak Samiti, Bara through Secretary & Ors

- **Citation:** (2015) 1 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-09
- **Case number:** Civil Misc. Writ Petition No. 45851 of 2014
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-girraj-sewak-samiti-bara-through-mantri-anr-v-sri-girraj-sewak-samiti-bara-43236
- **Pages:** 7

## Headnote

C.P.C. Order XXII Rule-10-Application
being summery in nature-exercise of
recording oral evidence and critical
analysis of documentary evidence-not
1 All]
Sri Girraj Sewak Samiti, Bara through Mantri & Anr. Vs. Sri Girraj Sewak Samiti, Bara through Secretary & Ors.
83
required-Trail Court rightly allowed the
application
to
brought
assignee
on
record-Revisional Court exceeded its
jurisdiction by interfering with order by
Trail Court-petition allowed.
Held: Para-17
Now coming to the scope of writ petition
under Art.226 of the Constitution of
India as directed against the order
passed by the revisional court, I am of
the
considered
opinion
that
the
revisional court ought not to have
interfered with the matter on the mere
ground that the trial court did not
undertake an exercise of recording oral
evidence or did not enter into a critical
analysis of the documentary evidence.
The proceedings in respect of application
under
Order
22
Rule
10
CPC
are
summary in nature and the trial court
while adjudicating upon the same has
clearly recorded that no other person
except respondent no.1 has raised any
dispute before the trial court and that
finding of the trial court has not been
found faulty on the strength of any
material whatsoever by the revisional
court, therefore, the revisional court
while passing the impugned order has
clearly
exceeded
the
jurisdiction
conferred under Section 115 of the Code
of Civil Procedure.
Case Law discussed:
AIR 1987 Bombay 276; 1976 (2) ALR 758;AIR
1979 SC 14(para 29 & 30); 2008 (2) SC 585
(para 14 & 15)=(2008) 4 SCC 530; JT 2012
(10) SC 503.

## Text

82
 INDIAN LAW REPORTS ALLAHABAD SERIES
and directions of the Board of Basic
Education. Under Section 10, the Zila
Panchayat is vested with the function inter
alia
to
prepare
schemes
for
the
development, expansion and improvement
of basic schools in the rural areas of the
district, to supervise the activities of
Gram Panchayats in the district with
regard to basic education and to perform
such other functions pertaining to basic
education as may be entrusted to it by the
State Government. This power cannot be
misused to cut at the very foundation of
basic
education
by
authorizing
the
construction of commercial shops on land
which was acquired for the purpose of a
school.
16. The manner in which permission
was sought of the State Government and,
for that matter, the manner in which the
State
Government
has
granted
its
permission shows that all the authorities
have acted in a callous manner, oblivious
of the impact which such a decision
would have on the need to preserve land
which was acquired for the purposes of
basic education and for primary schools.
The State Government has relied on a
Government Order which ex facie has no
application. We may note that the
petitioners have made certain allegations
against the ninth respondent who is the
Apar Mukhya Adhikari of the Zila
Panchayat. It has been alleged that the
Central
Bureau
of
Investigation
is
conducting an investigation. For the
purposes of these proceedings, we clarify
that it has not been necessary for the
Court to enter upon this area since on a
plain application of the legal standards to
which we have referred in the earlier part
of this judgment, the impugned decision
is patently contrary to law and would
have to be quashed and set aside.
17. We, accordingly, allow the
petition and set aside the permission
granted on 27 January 2014 by the
Special Secretary to the State Government
for the construction of shops on the land
of the school.
18. We direct in consequence the
District Magistrate, Bulandshahar to take
all necessary administrative steps to
ensure that following the setting aside the
permission of the State Government by
this Court, the land shall be restored to its
original position.
19. The petition is, accordingly,
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2014
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Civil Misc. Writ Petition No. 45851 of 2014
Sri Girraj Sewak Samiti, Bara through
Mantri & Anr.
...Petitioners
Versus
Sri Girraj Sewak Samiti, Bara through
Secretary & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vashistha Tiwari, Sri Shashi Nandan,
Sri Shivam Yadav
Counsel for the Respondents:
Sri H.N. Pandey, Sri Ashok Kumar
Dwivedi, Sri M.D. Singh 'Shekhar', Sri
Ashok Kumar Dwivedi, Sri P.N. Saxena,
Sri H.N. Pandey
C.P.C. Order XXII Rule-10-Application
being summery in nature-exercise of
recording oral evidence and critical
analysis of documentary evidence-not
1 All]
Sri Girraj Sewak Samiti, Bara through Mantri & Anr. Vs. Sri Girraj Sewak Samiti, Bara through Secretary & Ors.
83
required-Trail Court rightly allowed the
application
to
brought
assignee
on
record-Revisional Court exceeded its
jurisdiction by interfering with order by
Trail Court-petition allowed.
Held: Para-17
Now coming to the scope of writ petition
under Art.226 of the Constitution of
India as directed against the order
passed by the revisional court, I am of
the
considered
opinion
that
the
revisional court ought not to have
interfered with the matter on the mere
ground that the trial court did not
undertake an exercise of recording oral
evidence or did not enter into a critical
analysis of the documentary evidence.
The proceedings in respect of application
under
Order
22
Rule
10
CPC
are
summary in nature and the trial court
while adjudicating upon the same has
clearly recorded that no other person
except respondent no.1 has raised any
dispute before the trial court and that
finding of the trial court has not been
found faulty on the strength of any
material whatsoever by the revisional
court, therefore, the revisional court
while passing the impugned order has
clearly
exceeded
the
jurisdiction
conferred under Section 115 of the Code
of Civil Procedure.
Case Law discussed:
AIR 1987 Bombay 276; 1976 (2) ALR 758;AIR
1979 SC 14(para 29 & 30); 2008 (2) SC 585
(para 14 & 15)=(2008) 4 SCC 530; JT 2012
(10) SC 503.
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)
1. Heard Shri Shashi Nandan,
learned Senior Counsel assisted by Shri
Vashistha Tiwari and Shri Shivam Yadav,
learned counsel for the petitioners; Shri
M.D. Singh Sekhar, learned Senior
Counsel assisted by Shri Ashok Kumar
Dwivedi for respondent no.1 and Shri
P.N. Saxena, learned Senior Counsel
assisted by Shri H.N. Pandey, learned
counsel
for
respondent
no.2.
None
appears for respondent nos.3 to 7.
2. As the issue involved in the
present writ petition is a matter of contest
between the petitioners and respondent
no.1, therefore, non-appearance of other
respondents
although
one
of
them
respondent no.2 is represented is not
legally significant, as such notices to
other respondents are hereby dispensed
with.
3. This writ petition involves an
important question of law as to the extent
of enquiry in a matter involving the scope
of Order 22 Rule 10 CPC and for this
purpose arguments were heard at length
so as to thrash out the issue and incidental
issues, which relate to the management of
a religious charitable society registered
under the Societies Registration Act,
1860.
4. The factual matrix of the case in
short is that a suit for permanent
injunction was filed by the society known
as Sri Girraj Sewak Samiti, Bara Bazar
Goverdhan, Tehsil and District Mathura
through its Mantri/ Pradhan Mantri
Govind Prasad Purohit in the year 1999
against the respondent nos.2 to 7. During
the pendency of civil suit, the original
representative of the society viz. Govind
Prasad Purohit died on 28.11.2006 and
thereafter an application under Order 22
Rule 10 CPC was filed by one Shri
Jitendra Prasad Purohit, which was
allowed by the trial court on 31.5.2007 on
the premise that Shri Jitendra Prasad
Purohit on the basis of resolution dated
29.12.2006
was
elected
as
Mantri/
Pradhan Mantri of Sri Girraj Sewak
Samiti, Bara Bazar Goverdhan, Tehsil,
84
 INDIAN LAW REPORTS ALLAHABAD SERIES
District Mathura. The suit continued to be
pursued on behalf of the Samiti by
Jitendra Prasad Purohit until the month of
November,
2009,
when
another
application under Order 22 Rule 10 CPC
came to be filed by one Rama Kant
Kaushik, who claimed to have been
elected as Mantri/ Pradhan Mantri of the
society on the basis of resolution dated
4.10.2009
replacing
the
outgoing
Secretary Jitendra Prasad Purohit. The
copy of the application is placed on
record as Annexure No.4 to the writ
petition.
5. The plain averments made in the
application are to the effect that the
petitioner's predecessor Shri Jitendra
Prasad Purohit, who on being elected on
29.12.2006 as Mantri/ Pradhan Mantri
came to represent the suit proceedings on
the basis of an order passed by the trial
court on 31st May, 2007. It was further
stated in the application that the petitioner
was elected as Mantri/ Pradhan Mantri on
4.10.2009 in the resolution passed by the
Executive Body of the Samiti, as such, the
petitioner had a legal right to represent on
behalf of the society in the ongoing suit
proceedings.
6. The application filed by the
petitioner (Rama Kant Kaushik) was
opposed by the respondent no.1-Shri
Jitendra Purohit, the outgoing Mantri/
Pradhan Mantri. The copy of objections
filed by respondent no.1 is also placed on
record as Annexure No.6 to the writ
petition.
From
the
perusal
of
the
objections it is gathered that two main
objections were raised by respondent
no.1. Firstly the convening of meeting on
4.10.2009 was disputed on the ground that
the said meeting was not at all held on the
said date and secondly the petitioner
(Rama Kant Kaushik) was alleged to have
been ousted from the Executive Body of
the Samiti on 15.2.2009 and thereafter
new elections were said to have taken
place on 25th February, 2009, wherein the
members of the Executive Body were
elected, who subsequently constituted the
Management Committee on 31st March,
2009. Both the person on the basis of
being elected as Secretary
claimed
devolution
of
interest
upon
them
exclusive of each other.
7. The trial court went into the
contentions of rival parties and has
recorded detailed findings not only on the
passing of resolution dated 4.10.2009 but
has also recorded findings as to the
correctness
of
defence
putforth
by
respondent no.1 regarding the ouster of
petitioner (Rama Kant Kaushik) from the
membership of the Executive Body of the
Samiti. The trial court in its judgment
found that the petitioner on the basis of
resolution dated 4.10.2009 had a legal
right to represent the Samiti, therefore, the
application filed by the petitioner was
allowed by means of order dated
4.3.2010. The opposite party no.1 on
feeling aggrieved against the order passed
by the trial court filed Civil Revision
No.40 of 2010 assailing the findings and
the judgment passed by the trial court as
mentioned above. The judgment passed
by the trial court was assailed under
Section 115 of the Code of Civil
Procedure and the revision on being
allowed by means of the impugned order
has given rise to the present writ petition.
Section 115 CPC is reproduced below:-
"115. Revision.- (1) The High Court
may call for the record of any case which
has been decide by any court subordinate
to such High Court and in which no
1 All]
Sri Girraj Sewak Samiti, Bara through Mantri & Anr. Vs. Sri Girraj Sewak Samiti, Bara through Secretary & Ors.
85
appeal
lies
thereto,
and
if
such
subordinate court appears--
(a) to have exercised a jurisdiction
not vested in it by law, or
(b) to have failed to exercise a
jurisdiction so vested, or
(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity, the High Court may make
such order in the case as it thinks fit:--
Provided that the High Court shall
not, under this section, vary or reverse
any order made, or any order deciding an
issue, in the course of a suit or other
proceeding, except where the order, if it
had been made in favour of the party
applying for revision, would have finally
disposed of the suit or other proceedings.
(2) The High Court shall not, under
this section vary or reverse any decree or
order against which an appeal lies either
to the High Court or to any court
subordinate thereto.
(3) A revision shall not operate as a
stay of suitor other proceeding before the
Court except where such suit or other
proceeding is stayed by the High Court.
Explanation .- In this section, the
expression "any case which has been
decided" includes any order made, or any
order deciding an issue, in the course of a
Suit or other proceeding."
8. In view of Section 115 of the
Code of Civil Procedure, learned counsel
for the petitioner while assailing the
impugned
judgment
passed
by
the
revisional court argued that the judgment
passed by the trial court was fully in
consonance with law and ought not to
have
been
interfered
with
by
the
revisional court. The revisional court
judgment is attacked primarily on the
ground that the court below has not
appreciated the findings recorded by the
trial court and none of the findings
recorded by the trial court on being found
faulty have been set aside and that being
the position, the revisional court was
clearly in error to have remanded the
matter back to the trial court for fresh
enquiry on the issue within the scope of
Order 22 Rule 10 CPC, which by its very
nature is a summary proceeding. Order 22
Rule 10 CPC for ready reference is
reproduced hereunder:-
"10. Procedure in case of assignment
before final order in suit.- (1) In other
cases of an assignment, creation or
devolution of any interest during the
pendency of a Suit, the suit may, by leave
of the court, be continued by or against
the person to or upon whom such interest
has come or devolved.
(2) The attachment of a decree
pending an appeal there from shall be
deemed to be an interest entitling the
person who procured such attachment to
the benefit of sub-rule (1)."
9. In the light of provisions of Order
22 Rule 10 CPC, learned counsel for the
petitioner has laid emphasis on the trial
court judgment to show that the trial court
while allowing the application has duly
considered the material placed on record
i.e. agenda, list of members, who
participated to elect Rama Kant Kaushik
as Mantri/ Pradhan Mantri of the Samiti
and the resolution dated 4.10.2009 on this
premise according to the learned counsel
stands in consonance with law. Learned
counsel
further
submits
that
the
convening of meeting on 4.10.2009 was
sought to be disbelieved merely on the
ground that the petitioner (Rama Kant
Kaushik)
was
ousted
from
the
membership of executive body of the
Samiti but there was no evidence placed
86
 INDIAN LAW REPORTS ALLAHABAD SERIES
on record to the effect that he was ousted
from the membership of the executive
body. The trial court has also recorded
that no other member of the society has
come forward to file any affidavit or
evidence on the basis of which the
convening of meeting on 4.10.2009 may
be disbelieved. The trial court in absence
of any dispute to the documents placed on
record allowed the application.
10. Whether the trial court for
allowing the application under Order 22
Rule 10 CPC was duty bound to record
evidence on the issue of devolution in
interest or it was enough for the Court to
follow a summary procedure while
deciding the application is the question
that calls for an answer in these
proceedings?
11. In support of his contentions,
learned counsel for the petitioners has
cited the decision of Bombay High Court
in Jawahar Lal v. Smt. Saraswatibai
Babulal Joshi & Ors., AIR 1987 Bombay
276 as well as the decision passed by this
Court in Ram Kumar & Anr. v. Union of
India, 1976 (2) ALR 758. While inviting
attention of the Court to Paragraph 5 and
6 of Bombay High Court judgment,
learned counsel for the petitioner states
that Order 22 Rule 10 CPC is different
from the category of cases, which fall
under Order 22 Rule 1 to 9 CPC.
Paragraph 12 of the judgment reported in
AIR 1987 Bombay 276 is reproduced
below:-
"12. Having regard to the provisions
of O.22, R.10, Civil P.C. and the
authorities to which I have referred, it is
apparent that no detailed enquiry at the
stage of granting leave is contemplated.
The Court has only to be prima facie
satisfied for exercising its discretion in
granting leave for continuing the suit by
or against the person on whom the interest
has devolved by assignment or devolution
and the question about the existence and
validity of the assignment or devolution
can be considered at the trial of the suit on
merits. this being the legal position the
order passed by the learned trial Judge
was correct and no interference with the
discretion exercised by him is called for."
12. The same position of law is
reiterated in the judgment passed by this
Court reported in 1976 (2) ALR 758.
13. On the other hand learned
counsel for respondent no.1 argued that
the manner in which the trial court formed
its opinion was faulty as the original
record was not placed before the trial
court and the proceedings were also
conducted in a hasty manner.
14. The revisional court while
deciding the revision according to learned
counsel appearing for respondent no.1 has
proceeded on the premise that the learned
trial court had not only committed
material irregularity as to the enquiry,
which was necessary for deciding the
application but had exceeded in its
jurisdiction by rerecording the findings on
the basis of documents of which the
original copies were not placed on record.
15. In support of his contention
learned counsel for respondent no.1 has
referred to the judgments in State (Delhi
Administration) v. Pali Ram, AIR 1979
SC 14 (para 29 & 30); Thiruvengada Pilla
v. Navaneethammal & Anr., JT 2008 (2)
SC 585 (para 14 & 15)=(2008) 4 SCC 530
and Ajay Kumar Parmar v. State of
Rajasthan, JT 2012 (10) SC 503.
1 All]
Sri Girraj Sewak Samiti, Bara through Mantri & Anr. Vs. Sri Girraj Sewak Samiti, Bara through Secretary & Ors.
87
16. On the strength of aforesaid
judgments it is canvassed by learned
counsel
that
the
signatures
of
documentary evidence placed on record
could not be compared without seeking
expert opinion and Section 73 of the
Evidence Act did not enable the trial court
to record a finding on the basis of mere
comparison of the signatures on the
documents, originals whereof were not
produced before the court below. This,
according
to
learned
counsel
for
respondent no.1, is a material irregularity,
which the trial court has committed while
allowing the application. Learned counsel
for respondent no.1 has also argued that
despite there being an application filed by
the respondent no.1 to call for oral
evidence, the trial court proceeded in a
hasty manner and decided the application
on the same date, when the application for
transfer was rejected by the learned
District Judge. Rendering a detailed
judgment on the same very day according
to learned counsel shows that the trial
court had predetermined the issue, which
clearly amounts to a material irregularity
in the process of adjudication.
17. Now coming to the scope of writ
petition under Art.226 of the Constitution
of India as directed against the order
passed by the revisional court, I am of the
considered opinion that the revisional
court ought not to have interfered with the
matter on the mere ground that the trial
court did not undertake an exercise of
recording oral evidence or did not enter
into a critical analysis of the documentary
evidence. The proceedings in respect of
application under Order 22 Rule 10 CPC
are summary in nature and the trial court
while adjudicating upon the same has
clearly recorded that no other person
except respondent no.1 has raised any
dispute before the trial court and that
finding of the trial court has not been found
faulty on the strength of any material
whatsoever
by
the
revisional
court,
therefore, the revisional court while passing
the impugned order has clearly exceeded
the jurisdiction conferred under Section 115
of the Code of Civil Procedure.
18. The other grounds raised by
learned counsel for respondent no.1
before the revisional court to the effect
that the trial court proceeded in a hasty
manner and did not dispose of the
application for allowing evidences to be
led is also devoid of merit inasmuch as no
such evidence was actually led before the
trial court or is required to be examined
after recording of oral evidence etc.
19. This Court is of the opinion that the
trial court order allowing the application of
Rama Kant Kaushik not being a conclusive
judgment as to the rights of parties would not
preclude respondent no.1 to participate in
suit proceedings, once such a right is
declared or based on the requirements under
Section 25 of the Societies Registration Act,
1860 is laid as per the procedure prescribed
under law. The trial court while adjudicating
upon the issue of rival succession/devolution
in interest, being bound to frame an inclusive
issue is at liberty to transpose any of the
contesting parties to be the plaintiff, but such
a right of succession/devolution in interest,
needless to say, is bound to be declared in
accordance with the provisions of Societies
Registration Act, 1860 and the byelaws of
the society, which regulate the term of
management and conduct of other affairs of
the society and to which a registered society
owes its existence as a juristic person.
20. The writ petition filed by the
petitioner against the revisional court
88
 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 14.08.2014 is hereby allowed
and the impugned order is set aside.
21. No order as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2014
BEFORE
THE HON'BLE SATYENDRA SINGH
CHAUHAN, J.
Criminal Misc. Application No. 50248 of 2014
(u/s 482 Cr.P.C.)
Mohit Kumar Kankar & Anr. ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Sri Vikas Sharma, Sri Sanjay Singh
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.
-Section-482-Chargesheet
challenged-on
ground-without
following
procedure contained u/s Section 244(1)-
without opportunity of cross-examination to
the
accused
applicant-order
impugned
framing
charges-held-not
sustainablevarious reasons discussed.
Held: Para-12 & 19
12. The Apex Court further proceeded to
hold that the evidence under Chapter
XIX (B) has to be recorded in the
presence of the accused and if a right of
cross-examination was not given to him,
then he would be no more than an idle
spectator in the entire process. The
object of the whole process is to ensure
that not only does the accused have the
opportunity
to
hear
the
evidence
adduced against him, but also to defend
himself
by
cross-examining
the
witnesses with a view to showing that
the witness is either unreliable or that a
statement made by him does not have
any evidentiary value or that it does not
incriminate him.
19.
On a consideration of the above case
laws and the principles laid down therein,
the order impugned does not appear to be
correct order and the trial court has
proceeded to commit illegality in framing
the charge without recording evidence
under Section 244 (1) Cr.P.C. The order
framing
charge,
therefore,
cannot
be
sustained in law.
Case Law discussed:
(2013) 9 SCC 209; (2009) 14 SCC 115; (2010)
11 SCC 520
(Delivered by Hon'ble Satyendra Singh
Chauhan, J.)
1.
Through
this
petition,
the
petitioners have challenged the order of
framing of charge dated 11.11.2014 passed
by the Addl. Chief Judicial Magistrate,
Court No.4, Aligarh in Case No.579 of
2012 (Yatindra Kumar Vs. Mohit Kumar
Kankar and another) under Section 246 of
the Code of Criminal Procedure (for short
"Cr.P.C.") in a warrant case instituted other
than police report.
2. The fact in short giving rise to the
present dispute are that an application under
Section 156 (3) Cr.P.C. was moved by
opposite party no.2 on 30.11.2012, which
was treated as complaint by the trial court
vide order dated 19.12.2012. In the said
complaint, opposite party no.2 alleged that
he and petitioner no.1 were the friends and
one and a half years ago, petitioner no.1
borrowed Rupees one lakh from him and
again after six months, he (petitioner no.1)
borrowed Rupees one lakh from him
(opposite party no.2), but when petitioner
no.1 failed to return the money in cash, he
gave a cheque of Rupees two lakh dated
8.11.2012 but the cheque was dishonoured as