Ramji Lal and ors. Vs. Pitam Chand - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the trial court came to the conclusion that the plaintiffs had failed to establish the charges against the defendant and dismissed the suit with costs. the trial court has pointed out, and in my opinion with perfect justification, that, it was open to the defendant to defeat the plaintiffs' claim by all means in his power and the fact that he chose a particular means would not entitle the plaintiffs to bring a fresh suit against him. i have no hesitation in holding that the plaintiffs have failed to discharge the onus that rested on them. the defendant has filed a long written statement in which he prays that as he has recently attained majority and has been doing his best to manage his property, he should be allowed the opportunity of managing the temple without interference from others.bhandari, j.1. the short point for decision in this case is whether the defendant who is a pujari of a temple, has been guilty of breach, of trust and misappropriation of trust money or of mismanagement of trust property. on 27th june 1937, ramji lal and durga das, who are residents of the mohalla in which the temple known as mandir kanhaya lal bhola nath or shivala dina nath is situated, brought a suit against pitam chand pujari for a declaration that the temple in dispute together with the land attached thereto is a public wakf and for a perpetual injunction restraining the defendant from asserting his private ownership and from applying the income of the temple to his private use. the trial court held (a) that the temple and the land attached thereto are public wakf properties; (b) that the said temple and land have been in the exclusive management of the defendant and his ancestors for about a century; and (c) that the defendant is a hereditary pujari of the said temple and property and could not be regarded as owner thereof. on these findings the trial court granted a decree to the plaintiffs and this decree was confirmed by the high court on 27th september 1940.2. on 16th march 1943, ramji lal and three other residents of the sadar bazar, delhi, brought a suit against the defendant in which it was alleged that the defendant had mismanaged the property, had hindered public worship in the temple and had committed breach of trust and had misappropriated property to the extent of rs. 800 per mensem. it was accordingly prayed: (a) that the defendant be removed from the post of pujari; (b) that a committee of management be appointed; (c) that the scheme of management be framed; and (d) that the defendant be ordered to render account of the income. the trial court came to the conclusion that the plaintiffs had failed to establish the charges against the defendant and dismissed the suit with costs. the plaintiffs are dissatisfied with the order and have come to this court in first appeal.3. the principal ground for the defendant's removal from the post of pujari was that in the first suit brought against him by the worshippers of the mohalla he had pleaded that this temple and the land attached thereto were his private jagir and that the income derived therefrom was his private income. this assertion of a private claim and the denial of the existence of a public trust, was alleged, were sufficient in themselves to justify the removal of the defendant. the trial court has pointed out, and in my opinion with perfect justification, that, it was open to the defendant to defeat the plaintiffs' claim by all means in his power and the fact that he chose a particular means would not entitle the plaintiffs to bring a fresh suit against him.4. the plaintiffs have examined a large number of witnesses in order to establish the charges of mismanagement, misappropriation and even breach of trust. (after reviewing the evidence, his lordship continued.) the flimsy evidence that has been produced in this case is not, in my opinion, sufficient to establish a charge of mismanagement much less of misappropriation or criminal breach of trust. i have no hesitation in holding that the plaintiffs have failed to discharge the onus that rested on them.5. the defendant, on the other hand, has completely rebutted the allegations made against him. the witnesses who have appeared for him, most of whom are respectable inhabitants of the ilaqa, have categorically denied the assertion that the people play cards or wrestle inside the premises of the temple. the defendant has filed a long written statement in which he prays that as he has recently attained majority and has been doing his best to manage his property, he should be allowed the opportunity of managing the temple without interference from others.6. after going carefully through the records of the case and hearing the arguments which have been addressed to us, i have no doubt in my mind that there is no substance in the pleas put forward by the plaintiffs. in any case the suit appears to me to be premature, for the defendant has only recently attained majority and has not had a fair opportunity managing the temple.7. for these reasons i would confirm the order of the court below and dismiss the appeal with costs. the plaintiffs are not entitled to call upon the defendant to render accounts. it is open to them, if they so desire, to make an application to the district judge under the appropriate provisions of the endowments act.achhru ram, j.i agree.