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RISHI KUMAR JAIN & OTHERS versus SURESH CHANDRA SAHA & OTHERS

High Court of Judicature at Allahabad

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Rishi Kumar Jain & Others v. Suresh Chandra Saha & Others - CIVIL REVISION DEFECTIVE No. 164 of 2005 [2005] RD-AH 230 (23 January 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 54

CIVIL REVISION No. 164 (D) of 2005

Rishi Kumar Jain and others Vs. Suresh Chandra and others.

Hon. Mrs. Poonam Srivastava, J.

Heard learned counsel for the revisionists.

This is a revision under Section 115 C.P.C. whereby the order allowing an application under Section 92 C.P.C. granting leave without notice to the opposite parties and inviting objections has been recalled by the District Judge, Etah.

The submission on behalf of the revisionists is that a suit under Section 92 C.P.C. was instituted along with an application which was numbered as 5-C. The order was recalled in exercise of powers under Section 151 C.P.C. and objection has been invited in respect of the said application from the defendants. The submission is that Section 92 C.P.C. does not contemplates an objection by the defendants.

I have heard the counsel for the revisionists at length. In application under Section 92 C.P.C. three conditions must be fulfilled. The suit must relate to a public charitable or religious trust and secondly the foundation of the suit is on an allegation of breach of trust and a direction of the court is required for administration and lastly the relief claimed are those which are detailed in the said provisions. Such a suit is of specific nature and, therefore, the very foundation of the suit would fall if it does not stand the real test regarding applicability of the provisions of Section 92 C.P.C. The order passed on 7.9.2005 has been recalled by means of the impugned order, which is annexed along with an affidavit filed in support of the stay application. I have perused the order dated 7.9.2005. Nothing has been said by the Incharge District Judge, Etah regarding applicability of the three conditions before the application under Section 92 C.P.C. was allowed granting permission to file the suit under Section 92 C.P.C. In the circumstances, in the event, the District Judge, Etah recalled the said order in exercise of powers under Section 151 C.P.C., no illegality has been committed which calls for an interference in exercise of revisional powers. Besides the order inviting the objections on the application 5C-2 fixing a subsequent date, will not amount to a case decided and, therefore I am of the considered view that the revisional powers can not be invoked. The impugned order is only an interlocutory order and the revision itself is not maintainable.

In the circumstances, the revision lacks merit and is accordingly dismissed.

Dt/-23.1.2006.

Rmk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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