# Thakur Bankatesh Ji Maharaj Birajman Radha Niwas Brindaban & Anr. Plaintiffs/ v. Sri Suresh Chandra Sharma Defendant/

- **Citation:** (2019) 3 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-05
- **Case number:** Second Appeal No. 564 of 2000
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakur-bankatesh-ji-maharaj-birajman-radha-niwas-brindaban-anr-plaintiffs-v-sri-44946
- **Pages:** 6

## Headnote

Law-Code
of
Civil
Procedure,1908 - Order VII Rule 14
C.P.C. - when the plaintiff sues upon a
document - he should produce the said
document when the plaint is presented.
Order VII Rule 14 C.P.C. - mandate that
a document upon which a plaintiff sues
i.e. basis of the suit, shall enter such
document/documents in a list and shall
produce it in Court when the plaint is
presented by him - Plaintiff also obliged
to deliver the document and a copy
thereof to be filed along with the plaint -
Document on which a suit is based,
being part of the cause of action, has
been
considered
by
way
of
strict
compliance. In the absence of such
document the cause of action would be
lost. (Para 10, 11)
Held: - Suit filed by the deity through his
Sarvarakar, Mahant Naryan Dutt, with the
second plaintiff claiming himself to be the
holder of a power of attorney from Mahant
Narayan Dutt. Power of attorney that was set
up as the foundation of the second plaintiff's
right to sue on behalf of the deity was not
filed - plaint read with the requirements of
Order VII Rule 14, does not disclose a cause
of action worth trial and rightly rejected under
Order VII Rule 11 C.P.C
Second Appeal dismissed (E-5)
List of cases cited: -

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES

6. In the present case, reading
the plaint as a whole and proceeding on
the basis that the averments made therein
are correct, which is what the Court is
required to do, it cannot be said that the
said pleadings ex facie discloses that the
suit is barred by limitation or is barred
under any other provision of law. The
claim of the plaintiffs with regard to the
knowledge of the essential facts giving
rise to the cause of action as pleaded will
have to be accepted as correct. At the
stage of consideration of the application
under Order VII rule 11 the stand of the
defendants in the written statement would
be altogether irrelevant."

20. It is settled proposition of law as
taken by this Court as well as Hon'ble
Apex Court that while considering Order
7 Rule 11 (d) C.P.C, only plaint
averments have to be seen and therefore,
the document filed by defendant at pre
trial stage is not at all relevant, even the
documents relied upon by the trial court is
not relevant material for the purpose of
deciding, the issue regarding rejection of
plaint under Order 7 Rule 11 (d) C.P.C.
The judgment cited by learned counsel for
the respondents in the case Central
Provident Fund Commissioner, New
Delhi (supra) is not attracted at all in the
present case, as the Hon'ble Apex Court in
the said case has held that the rejection of
plaint on institutional ground is different
from the dismissal of a suit at pre trial
stage on the ground of maintainability.
The paragraph no. 7 of the decision in
Central Provident Fund Commissioner,
New Delhi (supra) is relevant which reads
as under:-

"7.
Accordingly
to
the
appellants,
the
respondents
have
suppressed crucial facts in the plaint,
which if seen, the suit is only to be
dismissed at the threshold. Rejection of a
plaint on institutional grounds is different
from dismissal of a suit at per-trial stage
on the ground of maintainability. For
dismissal on a preliminary issue, the
Court is entitled and liable to look into the
entire
documents
including
those
furnished by the defendant."

21. A bare reading of the paragraph
no. 7 quoted above, makes it clear that for
dismissal of the suit on a preliminary
issue regarding maintainability of the suit,
the court is entitled and liable to look into
all documents including those furnished
by the defendants.

22. Here in the present case, the
question
involved
is
regarding
the
rejection of plaint under Order 7 Rule 11
(d) CPC and the ratio as law laid down in
the decision of P.V. Guru Reddy (supra),
applies with full force in the facts and
circumstances of this case.

23. As a result of the above
discussion, both the substantial questions
of law as formulated in this case are
answered in the affirmative and decided
accordingly.

24. I do not find any illegality or
infirmity in the order impugned passed by
the lower appellate court.

25. The present second appeal lacks
merit and is accordingly dismissed.

26. No order as to costs.
----------
(2019)11ILR A753

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2019
3 All. Thakur Bankatesh Ji Maharaj Birajman Radha Niwas Brindaban & Anr. Vs. Sri Suresh Chandra Sharma 753
BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 564 of 2000

Thakur Bankatesh Ji Maharaj Birajman
Radha Niwas Brindaban & Anr.
 ...Plaintiffs/Appellants
Versus
Sri Suresh Chandra Sharma
 ...Defendant/Respondent

Counsel for the Appellants:
Sri K.S. Tiwari, Sri Rahul Dwivedi

Counsel for the Respondent:
Sri D.K.Tripathi, Sri Manish Goyal, Sri
Archit Mehrotra
A.
Civil
Law-Code
of
Civil
Procedure,1908 - Order VII Rule 14
C.P.C. - when the plaintiff sues upon a
document - he should produce the said
document when the plaint is presented.
Order VII Rule 14 C.P.C. - mandate that
a document upon which a plaintiff sues
i.e. basis of the suit, shall enter such
document/documents in a list and shall
produce it in Court when the plaint is
presented by him - Plaintiff also obliged
to deliver the document and a copy
thereof to be filed along with the plaint -
Document on which a suit is based,
being part of the cause of action, has
been
considered
by
way
of
strict
compliance. In the absence of such
document the cause of action would be
lost. (Para 10, 11)
Held: - Suit filed by the deity through his
Sarvarakar, Mahant Naryan Dutt, with the
second plaintiff claiming himself to be the
holder of a power of attorney from Mahant
Narayan Dutt. Power of attorney that was set
up as the foundation of the second plaintiff's
right to sue on behalf of the deity was not
filed - plaint read with the requirements of
Order VII Rule 14, does not disclose a cause
of action worth trial and rightly rejected under
Order VII Rule 11 C.P.C
Second Appeal dismissed (E-5)
List of cases cited: -
1. Church of Christ Charitable Trust &
Educational Charitable Society represented by
its Chairman Vs Ponniamman Educational
Trust represented by its Chairperson/Managing
Trustee (2012) 8 SCC 706

(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal is directed against an
appellate decree of Sri Bhagwati Prasad,
the then Vth Additional District Judge,
Mathura, dated 21.02.1999, passed in
Civil Appeal No. 10 of 1999, dismissing
the appeal and affirming an original
decree of Sri M.P. Srivastava, the then IV
Additional Civil Judge, (Senior Division),
Mathura, dated 23.11.1998 allowing an
application by the defendant under Order
VII Rule 11 C.P.C. and rejecting the
plaint in Original Suit No. 67 of 1998,
being a suit for permanent prohibitory
injunction, sought in terms to be detailed
hereinafter.

2. Heard Sri K.S. Tiwari, learned
counsel for the appellant and Sri Manish
Goyal, learned counsel appearing on
behalf of sole defendant-respondent.

3. The first plaintiff is Thakur
Banketeshji Maharaj Virajman Radha
Niwas Vrindawan, Tehsil and District
Mathura, who is the ruling deity of the
temple of Thakur Banketeshji Maharaj
Virajman, Radha Niwas Vrindawan. The
first plaintiff is shown to be represented
through His Mohtamim Mutwalli, Mahant
Narayan Dutt, disciple of the Late
Acharya Keshri Dutt, through his general
power of attorney holder, Gopal Gaur S/o
Sri Nand Kishore Sharma. Thus, the first
plaintiff who is none other than the ruling
754 INDIAN LAW REPORTS ALLAHABAD SERIES
deity of the temple of Thakur Banketeshji
Maharaj Virajman has been shown to be
represented, through Mahant Narayan
Dutt acting through the holder of a
general power of attorney from him, that
is Gopal Gaur.

4. The second plaintiff is again
Gopal Gaur S/o Sri Nand Kishore
Sharma. While suing as the second
plaintiff, the assertions in the plaint show
that the Appellant No. 2 has asserted a
right in his favour to bring the suit on the
strength of the power of attorney,
executed in his favour by Mahant
Narayan Dutt. This power of attorney is a
registered document dated 01.09.1997,
according to the plaintiff, by which
Mahant Narayan Dutt has constituted the
second plaintiff-appellant his attorney to
look after the property of Thakur
Banketeshji Maharaj Virajman, Radha
Niwas Vrindawan (hereinafter referred to
as 'Thakur ji') and further conferred upon
him ecclesiastical duties relating to
Thakur Ji, that involve Seva, Pooja, Bhog,
Rag etc. It is asserted that back to
mundane matters, Mahant Narayan Dutt
has authorised the second appellant to
prosecute and defend pending cases
relating to the property of Thakur Ji, as
also those that may arise in future.

5. It has been asserted further that
the power of attorney dated 01.09.1997
has not been cancelled and is still in
force. It is also an assertion that by the
power under reference, Mahant Narayan
Dutt has entrusted to the care and custody
of the second appellant, various movables
of Thakur Ji, which continue to be in his
custody. It is also asserted that in keeping
with the aforesaid obligations, the second
appellant has been undertaking all along
regular Seva, Pooja of Thakur Ji, without
any
interruption,
and
according
to
custom. He has further been taking good
care of the property of Thakur Ji,
maintaining it and realizing rents from
tenants, in occupation of property that is
debutter. It is asserted that the defendantrespondent no. 1 has no right in the suit
property.
But
the
said
defendantrespondent has an evil eye on Thakur Ji's
property that he wants to usurp and take
illegal possession of.

6. It is also claimed in the plaint that
defendant-respondent
has
proclaimed,
that he would dispossess the second
appellant from the suit property, and
would not allow the said appellant to
undertake his routine religious service. It
is then averred that on 26.01.1998, the
defendant-respondent made a determined
effort to oust the second appellant from
possession of the suit property by force
but he was not successful at it. It has been
in the last averred that in case the
defendant-respondent
succeeds
in
dispossessing the second appellant, he
would suffer irreparable loss and injury.
On foot of these facts, a permanent
prohibitory injunction has been claimed
by the second appellant, suing as plaintiff
No. 2 and purporting to sue as Plaintiff
No. 1, in the name of Thakur Ji
represented through him, to the effect that
the defendant-respondent be restrained
from interfering with his management of
the affairs and property of Thakur Ji.

7. The defendant-respondent filed an
application
dated
18.02.1998,
under
Order VII Rule 11 C.P.C., duly supported
by affidavit with a case in brief to the
effect that the power of attorney dated
01.09.1997, that is basis of the second
appellant's right, claimed in the suit has
been cancelled by Mahant Narayan Dutt
3 All. Thakur Bankatesh Ji Maharaj Birajman Radha Niwas Brindaban & Anr. Vs. Sri Suresh Chandra Sharma 755
through a registered document dated
13.10.1997, and, he has further sent
information in regard to such cancellation
to the second appellant, which the latter
has received. It is also said in that
application that the original power of
attorney dated 01.09.1997 has been taken
back by Mahant Narayan Dutt from the
second appellant. It is, therefore, said in
the motion to reject the plaint that on the
date when the suit was instituted,
Appellant No. 2 did not hold any power
of attorney entitling him to represent
either Thakur Ji, or otherwise, to sue for
the protection of Thakur Ji's properties or
any other right, the suit being instituted
on 28.01.1998. It is thus said that the
second appellant has no cause of action to
institute a suit either in the name of
Thakur Ji, or in his own name to protect
and safeguard the interests of Thakur Ji. A
reply to the motion under Order VII Rule
11 has been filed on behalf of the second
appellant saying that the power of
attorney in his favour has not been
cancelled by Mahant Narayan Dutt or has
he received any information in that
behalf. It is further said that at the time of
instituting the suit, the plaintiff-appellant
No. 2 was the lawful attorney of Narayan
Dutt, and continues to be so entitling him
to sue. He, therefore, demanded that the
motion under Order VII Rule 11 be
rejected and the suit allowed to proceed.

8. Both courts below by the orders
impugned in this appeal, that bear the
force of a decree, have sustained the
defendant-respondent's
motion
under
Order VII Rule 11, and rejected the plaint.
The Court's below found that the suit was
filed by the deity through his Sarvarakar,
Mahant Naryan Dutt, with the second
plaintiff claiming himself to be the holder
of a power of attorney from Mahant
Narayan Dutt. It is not in issue that the
power of attorney dated 01.09.1997 that
was set up as the foundation of the second
appellant's right to sue on behalf of the
deity was not filed as basis of the suit. In
fact, it was never filed at all, before both
the court's below. The said power of
attorney dated 01.09.1997, which appears
to be a registered document was cancelled
by the Mahant on 13.10.1997, also by a
registered document that was filed by the
defendant as paper no. 25 Ga. This document
cancelling the power dated 01.09.1997, has
not been disputed or denied by the second
appellant. Apparently, when the suit was
filed on 28th January, 1998 on behalf of
Thakur Ji, represented through the second
appellant, and in his own name also, on the
basis of the power of attorney of 1st
September, 1997, the second appellant did
not have that power surviving, owing to its
cancellation on 13.10.1997 by the Mahant
through a supervening instrument, revoking
the power.

9. Here, the Court must pause and
and remark that a perusal of the plaint
shows that Mahant Narayan Dutt through
whom Thakur Ji has been represented, has
been
described
as
"Mohatimim
Mutawalli". Mohatimim Mutawalli is the
closest equivalent known to English Law
as a trustee but the same is a legal concept
native to Mohammedan Law relating to
Wakhf. It has absolutely no place or
relevance in the context of a Mahant,
entitled to represent a deity under the
Hindu Law. Though not of much
consequence to the determination of the
issue here, this manner of a most callous
description of parties betrays, to say the
least, culpable ignorance on the part of
the draftsman who has drawn up
pleadings in this case. This Court wishes
to say no more about this issue.
756 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Before the Appellate Court it
appears that finding the situation uneasy,
the plaintiff-appellant No. 2 took a plea
that assuming without prejudice that he
held no power of attorney on the day he
instituted the suit, he had a right to sue in
his individual capacity. This plea never
found place in the plaint and was,
therefore,
rightly
discarded
by
the
Appellate Court on reasoning that the
second appellant had alone claimed a
right to sue on behalf of the Mahant,
derived through a power of attorney to
represent Thakur Ji. Most certainly, the
length and breadth of the plaint does not
disclose, by as much as a hint, a personal
right to sue in the second appellant. Even
if such a right were set up, on a plain
reading of the plaint, there is absolutely
no place for a personal right, and
consequently no cause of action to sue on
the basis of it. It must be noticed here that
provisions of Order VII Rule 14 C.P.C.
mandate that a document upon which a
plaintiff sues, popularly referred as a basis
of
the
suit,
shall
enter
such
document/documents in a list and shall
produce it in Court when the plaint is
presented by him. He is also obliged to
deliver the document and a copy thereof
to be filed along with the plaint. In this
connection, the provisions of Order VII
Rule 14 may be quoted with profit:

[14. Production of document on
which plaintiff sues or relies. - (1) Where
a plaintiff sues upon a document or relies
upon document in his possession or
power in support of his claim, he shall
enter such documents in a list, and shall
produce it in Court when the plaint is
presented by him and shall, at the same
time deliver the document and a copy
thereof, to be filed with the plaint.

(2) Where any such document is
not in the possession or power of the
plaintiff, he shall, wherever possible, state
in whose possession or power it is.

[(3) A document which ought to
be produced in Court by the plaintiff
when the plaint is presented, or to be
entered in the list to be added or annexed
to the plaint but is not produced or
entered accordingly, shall not, without the
the leave of the Court, be received in
evidence on his behalf at the hearing of
the suit.]

(4) Nothing in this rule shall
apply to document produced for the cross
examination of the plaintiff's witnesses,
or, handed over to a witness merely to
refresh his memory.]

11. In this regard the document on
which a suit is based, being part of the
cause of action, has been considered and
answered in favour of strict compliance,
in the absence of which the cause of
action would be lost, in Church of Christ
Charitable
Trust
and
Educational
Charitable Society represented by its
Chairman vs. Ponniamman Educational
Trust
represented
by
its
Chairperson/Managing Trustee, where it
has been held thus by their Lordships:-

"17. In the case on hand, the
respondent-plaintiff to get a decree for
specific performance has to prove that
there is a subsisting agreement in his
favour and the second defendant has the
necessary authority under the power of
attorney. Order 7 Rule 14 mandates that
the plaintiff has to produce the documents
on which the cause of action is based,
therefore, he has to produce the power of
attorney when the plaint is presented by
him and if he is not in possession of the
same, he has to state as to in whose
3 All. State of U.P. Vs. Sri Pooran Chand
757
possession it is. In the case on hand, only the
agreement between the plaintiff and the second
defendant has been filed along with the plaint
under Order 7 Rule 14(1). As rightly pointed out
by the learned Senior Counsel for the appellant,
if he is not in possession of the power of
attorney, it being a registered document, he
should have filed a registration copy of the
same. There is no such explanation even for not
filing the registration copy of the power of
attorney. Under Order 7 Rule 14(2) instead of
explaining in whose custody the power of
attorney is, the plaintiff has simply stated "nil". It
clearly shows non-compliance with Order 7
Rule 14(2).

18.
In
the
light
of
the
controversy, we have gone through all the
averments in the plaint. In Para 4 of the
plaint, it is alleged that the second
defendant as agreement-holder of the first
defendant and also as the registered
power-of-attorney holder of the first
defendant executed the agreement of sale.
In spite of our best efforts, we could not
find any particulars showing as to the
documents which are referred to as
"agreement-holder". We are satisfied that
neither the documents were filed along
with the plaint nor the terms thereof have
been
set
out
in
the
plaint.
The
abovementioned two documents were to
be treated as part of the plaint as being
the part of the cause of action. It is settled
law that where a document is sued upon
and its terms are not set out in the plaint
but referred to in the plaint, the said
document gets incorporated by reference
in the plaint. This position has been
reiterated in U.S. Sasidharan v. K.
Karunakaran [(1989) 4 SCC 482] and
Manohar Joshi v. Nitin Bhaurao Patil
[(1996) 1 SCC 169]."

12. In the present case, it is apparent
on the face of the record that when the
suit was filed on 28.01.1998, there existed
no power of attorney in favour of
plaintiff-appellant no. 2. There is also
nothing on record to show that plaintiff
No. 1 represented by the Mahant, had
come forward to verify the plaint and its
contents, or had instituted the suit. The
Courts below have recorded a categorical
finding that the power of attorney was not
produced by plaintiff-appellant No. 2,
either before the Trial Court or before the
Appellate Court. The power of attorney
has not been produced, even before this
Court. The feeble attempt on pleading a
personal right to sue before the lower
Appellate Court has already been dealt
with in the earlier part of this order and
found to be utterly derided of substance.
Under circumstances, the plaint here
taken as a whole, in particular, read with
the requirements of Order VII Rule 14,
does not disclose a cause of action worth
trial. In the considered opinion of this
Court, the plaint has been rightly rejected
under Order VII Rule 11 C.P.C.

13. In the result, this appeal is
dismissed under Order XLI Rule 11
C.P.C.
----------
(2019)11ILR A757

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 594 of 1991

State of U.P. ...Defendant/Appellant
Versus
Sri Pooran Chand
 ...Plaintiff/Respondent

Counsel for the Appellant: