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C/M Vaishya Siksha Samiti & Another v. Asst. Registrar Firms Societies & Chits Moradabad & Others - SPECIAL APPEAL No. 1030 of 2006 [2006] RD-AH 16184 (18 September 2006)


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CJ's Court

Special Appeal No.1030 of 2006

Committee of Management, Vaishya Siksha Samiti Mohalla Tambakuwala Moradabad and another


Assistant Registrar, Firms, Societies & Chits, Uttar Pradesh, District Moradabad and others

Counsel for the appellants: 1.      Sri Shashi Nandan, Sr. Advocate

2.     Sri Umesh Vats, Advocate.

Counsel for the respondents: 1. Sri S.P. Gupta, Sr. Advocate

2. Sri Vivek Chaudhary, Advocate.

3.      Chief Standing Counsel


Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

The facts of this case show a certain complicated interplay of certain provisions of Civil Procedure Code or principles akin thereto, but for the purpose of allowing the parties to have their case decided on merits, it is our opinion that the order of the learned Single Judge impugned before us, which is dated the 7th of August, 2006, should be set aside, and the application for succession filed by the appellant on the 29th of July, 2005 should be allowed.

However, this order is to be qualified in certain ways, and that we proceed to do hereafter.

The writ petition, which was filed on 25.5.2005, was initially instituted by one Shiv Avatar Agarwal, the then purported Secretary of the Committee of Management in capacity as self and also as representing the said committee; he has since died on the 9th of January, 2006.

The case of the appellant- Krishna Kumar is that he was validly inducted as the new Secretary of the Committee on the 5th of July, 2005 and he thereupon made the application for succession or substitution, as the case might be, on 29.07.05.

However, before that date on the basis of an affidavit affirmed on the 21st of June, 2005, the deceased-Shiv Avatar Agarwal had applied on the 11th of July, 2005 for withdrawing the writ application against Ajeet Kumar.

In the grounds, he stated that it was not right for two parties of the Committee to fight.

This is where the controversy on merits comes in. The controversy is, was Krishna Kumar properly inducted as Secretary on the 5th of July, 2005? Or is it, as submitted by the respondents, that 52 out of the total strength of 80 of the General Body, on the 14th of June, 2005 passed resolutions, which have the effect of entrenching the position of Ajeet Kumar as Manager? This would happen because, according to the respondents, the body decided on the withdrawal of the writ petition.

The validity and factum of this General Body meeting of 14.6.2005 is not accepted by the appellants.

Simply put, the deceased-Shiv Avatar Agarwal, the then purported Secretary, was against the then purported Manager Ajeet Kumar, but that he thereafter lost interest in fighting Ajeet Kumar and also died.

On the other hand, Krishna Kumar, who affirmed the initial affidavit for Shiv Avatar Agarwal remained in the enemy camp, if we might say so, and remained interested in pursuing the writ petition, and is so even now, to see ultimately whether Ajeet Kumar's position is tenable or not.

Mr. Gupta appearing for the respondents made the submission that on the application of Shiv Avatar Agarwal, being moved on 11.7.2005, the withdrawal application already became effective then and there. This might be so, because Shiv Avatar Agarwal was in reality seeking to abandon his claim.

However, before the order recognizing such withdrawal could be passed, he died on 9.1.2006 and the application would abate, or suffer a similar fate to that, as might be spelt out in regard to writ petitions.

The Court would be beating about bush if it were to lose itself in matters of technicality where those are not really material. Should one merely allow Krishna Kumar to file a new writ petition and treat this withdrawal as complete? In that event such liberty of filing would have to be hedged in with numerous qualifications, spelling out all the rights, which were not pronounced upon at all. A listing of those rights is not necessary.

As such the substitution application of Krishna Kumar is allowed; he will be entitled to pursue the writ application for self, claiming himself to be the Secretary of the Committee although such claim will not in any manner mean that he is pronounced by us validly as such Secretary. It will be the subject of further decision of Court.

Since Krishna Kumar was not ever added as a party, none of his rights can be taken to be decided by the order passed in the Court below; similarly just because we permit the succession or substitution application of Krishna Kumar, the same is not to be taken as an acceptance of any of the rights or contentions of Krishna Kumar on the substance or the merits of the controversy.

The appeal is thus allowed. The impugned order is set aside. Out of abundant caution, we repeat that our order and observations, however worded, will not in any manner affect the merits of the case; i.e., whether Ajeet Kumar is the appropriately posted Manager of the Committee or not; whether Krishna Kumar is or was the appropriate Secretary of the Committee; and whether Ajeet Kumar now fills any single or the dual capacity of Manager and Secretary as submitted by Mr. Gupta. It is also made clear that we have not entered into the controversy as to whether the Committee of which Shiv Avatar Agarwal was once the purported alleged Secretary, or the Committee of which Krishna Kumar now claims to be the Secretary, at all exists now or not.

Mr. Gupta submitted that his clients are praying for expeditious disposal of the writ; obviously this prayer is to be made before the Hon'ble Single Judge who has seisin over the writ matter.      

Dt: 18.09.2006



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