- (1.) TATIA, J. S. B. Civil First Appeal No. 239/2002 preferred against the judgment and decree of the trial Court - District Judge, Rajsamand passed in Civil Original Suit No. 46/2001 (3/99) (42/96) dated 24th Oct. , 2002 dismissing the suit of the plaintiff -Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli and three others after holding that the suit is abuse of process of law.
(2.) S. B. Civil First Appeal No. 232/2005 has been preferred to challenge the judgment and decree dated 19th May, 2005 passed by the Court of District Judge, Rajsamand in Civil Execution Case No. 6/2001 whereby the appellant's application filed under Order 21 Rule 97 read with Section 151 CPC was dismissed. Since the matter is related to the same property and issue involved are common question of facts and law, therefore, these both appeals are heard together and are decided by this common judgment. The litigation has chequered history. One property was sold by one Krishan Kumar as his personal property to respondent nos. 1 to 6 (in both the appeals) on 18th Dec. , 1978. It appears that some of the properties were already let out to State Government and, therefore, the purchasers respondent No. 1 to 6 after purchasing the property filed the suit for eviction of their tenants - respondent No. 7 to 10 (in S. B. Civil First Appeal No. 232/2005) on the ground of personal bonafide necessity etc, which is Civil Original Suit No. 29/81. The above suit was dismissed by the Court of Addl. District Judge, Rajsamand vide judgment and decree dated 15th Sept. , 1990. The respondent nos. 1 to 6 aggrieved against the judgment and decree of the trial Court dated 15th Sept. , 1990 preferred a regular first appeal before this Court, which was registered as S. B. Civil First Appeal No. 166/1990. In the first appeal, a written compromise was submitted by both the parties in terms of the order passed by the State Government dated 27th March, 1995. In view of the compromise between the parties, the eviction decree was passed by this Court on 24th May, 1995 against the tenants-respondents and in favour of the plaintiffs-respondents No. 1 to 6. It appears from the compromise dated 27th March, 1995 that the plaintiffs4 respondents nos. 1 to 6 agreed to donate one new school building to the respondent-State. It appears that despite of decree for eviction, the judgment-debtor including the State did not hand over vacant possession of the suit premises to the plaintiffs- respondents No. 1 to 6, therefore, in the year 2001 plaintiffs submitted execution petition, before the Executing Court, which was registered as Execution Case No. 6/2001. During this execution, the plaintiffs gave alternate premises to the State for running school and for that purpose, they also executed a gift deed on 10th May, 2005. On 4. 8. 2005, the suit premises was vacated. It will be worthwhile to mention here that in the year 1996, one Ishwar Chand Sharma filed one PIL [db Civil Writ Petition (PIL) No. 1323/2006] before this Court. In DB Civil Writ Petition No. 1323/1996 projected as PIL, Ishwar Chand Sharma stated that prior to his retirement he was working as Vice Principal in the Government School. The petitioner Ishwar Chand Sharma in the said writ petition prayed for restrained order against the judgment- debtor of Civil Original Suit No. 29/81 against shifting the Government School in question from its rented premises to its new building, which was given in pursuance of compromise decree referred above. The above writ petition was dismissed by the Division Bench of this Curt vide judgment dated 1st Dec. , 1999 after holding that the petitioner has clearly abused the process of this Court and has tried to stall the vacation of the old building of the school for ulterior motives. The Division Bench also took note of the compromise decree passed by this Court in S. B. Civil First Appeal No. 166/1990 and held that in view of the compromise decree, in execution, the building has to be vacated. Ishwar Chand's above projected public interest litigation writ petition No. 1323/1996 was dismissed with the cost of Rs. 10. 000/- by the Division Bench of this Court vide judgment dated 1st Dec. , 1999. SLP was preferred against the judgment of this Court dated 1st Dec. , 1999, which was dismissed by the Hon'ble Apex Court on 27th March, 2000. Same Ishwar Chand Sharma and three others in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli filed present suit No. 46/2001 (3/99) 4296 on 9. 8. 1996 in the trial Court for declaration that property in dispute for which sale deed was executed as back as on 18th Dec. , 1978 may be declared to be ownership property of plaintiff No. 1-temple and sale deed dated 18th Dec. , 1978 may be declared illegal, null and void and by sale deed dated 18th Dec. , 1978 no right, title accrued in favour of respondent No. 1 to 6-defendants nos. 1 to 6. This Court while dismissing the writ petition of Ishwar Chand Sharma (DB Civil Writ Petition No. 1323/1996) also took note of pendency of above suit while dismissing the writ petition of the petitioner Ishwar Chand Sharma.
(3.) IN Civil Original Suit No. 46/2001, the defendants- respondents- decree holder as well as defendants No. 1 to 6 submitted application under Section 151 CPC for dismissal of the suit filed by the plaintiff with the allegation that the suit is liable to be dismissed as it amounts to abuse of process of Court. The respondent nos. 1 to 6 narrated all the facts referred above about passing of the decree in favour of respondent nos. 1 to 6 by the High Court in regular first appeal and donating the school building by the respondent No. 1 to 6 to the State for running the school and Ishwar Chand's effort to put obstruction in the way of shifting of school to the new building by filing frivolous public interest litigation and dismissal of that public interest litigation and dismissal of special leave petition by the Hon'ble Apex Court. The trial Court by impugned order dated 2. 8. 2002 dismissed the suit of the plaintiff holding that the suit is abuse of process of Court and liable to be dismissed forthwith. Against the said order of dismissal of plaintiff's appellant's suit No. 46/2001 (3/99) (42/96) vide judgment and decree dated 2. 8. 2002 S. B. Civil First Appeal No. 239/2002 has been preferred by the plaintiff. In the matter where sale-deed was executed on 18th Dec. , 1978 an eviction decree was passed in favour of the purchasers by this Court in S. B. Civil First Appeal No. 166/1990 on 16th Nov. , 1990 and during the pendency of Civil Original Suit No. 46/2001 (3/99) (42/96) filed in the year 1996 a public interest litigation was filed for the virtually same relief and which was dismissed by this Court with cost of Rs. 10,000/- in the year 1999 and SLP was dismissed by the Hon'ble Supreme Court in the year 2000 and when plaintiff's-appellant's suit was dismissed as frivolous litigation by the trial Court on 2. 8. 2002 then an application under Order 21 Rule 97 CPC in the execution case No. 6/2001 was filed on 10th May, 2005 by the persons Inder Mal, Shanker Lal and Navneet. Though the application under Order 21 Rule 97 CPC is in individual names but application for interim relief under Order 21 Rule 97 CPC read with Order 39 Rule 1 and 2 CPC is in the name of Temple has been filed by the same objectors. The said application was dismissed by the executing Court by order dated 12th May, 2005. This dismissal of the application has not been challenged and, therefore, dismissal of application filed under Order 21 Rule 97 CPC become final. Then another application just after four days, under Order 21 Rule 97 CPC has been filed again in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli but through Vinod Sanadhaya. This application was dismissed by the executing Court on 19th May, 2005, therefore, to challenge the order dated 19th May, 2005 S. B. Civil First Appeal No. 232/2005 has been preferred in the name of temple Thakur Ji Shri Mathuradassji through Vinod Sanadhya. S. B. Civil First Appeal No. 239/2005 was admitted on 28th Nov. , 2002 by this Court and after two years, on 11th April, 2005 appellant submitted an application under Order 41 Rule 27 CPC in S. B. Civil First Appeal No. 239/2002 alleging that respondents nos. 8 to 11 are the tenants in the property in dispute and dispute is whether the property in dispute was the personal property of respondent No. 7 Shri Krishan Kumar or it is the property of the temple Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli - plaintiff- appellant No. 1. According to the appellants, appellant No. 4 inquired from the office of the respondent No. 11 - the District Education Officer, Primary, Rajsamand as to how and in what circumstances, the tenant attoren to respondents nos. 1 to 6 who purchased the property from respondent No. 7 Shri Krishan Kumar. The appellant No. 4 for the first time came to know that Education Department was informed by the temple that property in dispute has been sold to 6 persons by it so the rent may be given to those purchasers and the purchasers also informed the department that they have purchased the property from Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli. In view of the above it is clear that the property was of the temple and it is clear case of fraud with the tenants and because of that fraud they attorn under impression that sale has been affected by the temple in favour of the purchasers. According to the appellants Photostat copies of the notices given by the said Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli and appellants had no knowledge of these documents and therefore, the appellants could not produce those documents during trial or at the time of filing of the appeal. Therefore, the same may be permitted to produce under Order 41 Rule 27cpc. This Court by order dated 13. 2. 2006 observed that the said application will be decided at the time of final hearing of the appeal. ;