- (1.) THE above mentioned appeal and the writ petition have arisen out of same suit, wherein two orders dated 12-04-2007, passed by Additional District Judge/iiird Fast Track Court, Haridwar, in Civil Appeal No. 09 of 2003 and Civil Revision No. 39 of 2003 are challenged. By the impugned order dated 12-04- 2007, challenged in the appeal, the First Appellate Court as set aside the decree passed by the trial court and remanded the suit to the trial court to try afresh. THE same court vide separate order dated 12-04- 2007, passed in the civil revision (challenged through the writ pe tition) has allowed the revision setting aside the order dated 27-02-2003, whereby trial court had rejected the impleadment application, moved by the respondent/revisionist-International So ciety for Krishna Consciousness (ISKCON) and Sanjay Vyas.
(2.) HEARD learned counsel for the par ties and perused the record. Brief facts of the case are that appellant/petitioner No. 1 through its Mahant Shankar Bharti, instituted suit No. 70 of 1985, seeking relief of injunc tion restraining defendant No. 1 not to interfere in the management of Puja-Archana of plaintiff No. 1 Lord Radha Krishna Ji Maharaj Virajman Mandir Radhakrishna Baikunth Dham Ashram, Bhopatwala, Haridwar, through plaintiff No. 2 Swami Nigamanand. Defendants No. 3 to 17 namely Tarun Kumar Ganguly, Pandit Sundar lal (since de ceased), Ranchore Das (since de ceased), Ram lal Verma, Chunni lal Anand (since deceased), Ram Anand, Ram lal Chadhha (since deceased), Lala Anand Prakash (since deceased) and Lala Radheysham, Lala Balak Ram, Lala Krishna Chand, Lala Amrish Kumar, Bipin Kumar, Lala lal Chand, Lala Prem Chand, being trustees of plaintiff No. 1, were impleaded as proforma defendants. It is pleaded in the plaint that one Nihal Devi, who was a religious lady was owner of the land in suit, who executed a gift deed dated 08. 12. 1930 in favour of one Swami Niranjan Dev Saraswati, who accepted the same and took possession of the land and got constructed a temple and established in it idol of Lord Radha Krishna. Said Swami Niranjan Dev vide registered Will dated 12. 02. 1943, do nated the entire property to plaintiff No. 1. Niranjan Dev died on 30. 10. 1985. After his death, plaintiff No. 1 through plaintiff No. 2, is managing the affairs of the temple. Defendant No. 1 who was only one of the trustees had no right to execute any deed of the property in suit in favour of International Society for Krishna Consciousness (ISKCON) or any other person. He issued a letter dated 26. 07. 1985 in favour of ISKCON, the defendant No. 2 in the month of August 1985, and made an attempt to interfere in the worship and manage ment of plaintiff No. 1 through plaintiff No. 2, hence suit was instituted seeking relief against defendants No. 1 and 2. During the pendency of aforesaid suit, defendant No. 1 Acharya Gopal Krishna Goswami, filed an application paper No. 157 C along with affidavit paper No. 158 C, before the trial court giving his consent for decreeing the suit. Said settlement was duly signed on be half of the plaintiff and defendant No. 1. Before said application could be dis posed of, ISKCON and Sanjay Vyas Das, moved an application before the trial court for their impleadment under Order I Rule 10 of Code of Civil Proce dure (herein after referred as C. P. C), which was rejected by the trial court on 27. 02. 2003. Thereafter, the trial court exercising power under the Order XII Rule 6 of C. P. C. , decreed the suit against the defendant No. 1 vide its or der dated 03. 03. 2003, which amounts to a consent decree, as against him. As far as, the second defendant (defendant No. 2) is concerned against whom also injunction was sought, it is mentioned in judgment and decree dated 03. 03. 2003, that the suit was dismissed against him, as withdrawn by the plaintiff. No relief was sought by the plaintiff against any other defendants.
(3.) PETITIONERS/appellants/plaintiffs case is; that said decree dated 03. 03. 2003, was not appellable on be half of defendant No. 1 in view of the provisions contained in sub-section (3) of the Section 96 of C. P. C. as such, ap peal filed against said decree was not maintainable before the first appellate court, who has allowed the appeal. It is further pleaded on behalf of the petition ers/appellants/plaintiffs, before this Court that the revision filed by ISKCON and Sanjay Vyas Das, challenging the re jection of their impleadment application before the revisional court was also er roneously allowed by the lower appel late/revisional court. In this connection, it is pleaded in the writ petition that af ter death of Mahant Shankar Bharti (through whom plaintiff instituted suit), the revisional/appellate court not only allowed Sanjay Vyas Das (respondent No. 4 to writ petition) to be impleaded as legal representative to represent plain tiff, but also allowed Swami Nigamanand (petitioner/defendant No. 2) to be substituted in place of Shankar Bharti. As such, it is alleged by the petitioners/appellants before this Court that vide order dated 08. 01. 2007, lower appellate/revisional court, has taken an illegal approach, as two persons with conflicting interests were directed to be made legal representative of same de ceased person. As to the setting aside of the decree passed by the trial court, it is alleged by the present appellant in the grounds of the appeal, filed under Order XLIII Rule 1 (U) of C. P. C. that first appeal was not maintainable before the lower appellate court, as the decree passed by the trial court was a consent decree. It is further pleaded that no re lief had been sought against the proforma defendants, as such, setting aside of the decree by the lower appel late court and remanding the case for fresh trial is also illegal. As such the order passed in the civil revision No. 39 of 2003, allowing the impleadment ap plication of ISKCON and Sanjay Vyas Das, in the suit, and the order passed in civil appeal No. 09 of 2003, by the lower appellate court (IIIrd Fast Track Court, Haridwar), are challenged as il legal and liable to be set aside/quashed. Perusal of the impugned order dated 12. 04. 2007, passed in civil appeal No. 39 of 2003, challenged through the writ petition shows that by said order the revisional/appellate court has allowed the revision, setting aside order dated 27. 02. 2003, whereby impleadment ap plication of the revisionist ISKCON and Sanjay Vyas Das, were rejected by the trial court.;