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2000 DIGILAW 196 (PNJ)

Sanjay Kumar Jain v. Usha Goel And Ors.

2000-02-17

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This is a revision petition against the order dated 9.9.1998 passed by the trial Court dismissing the application of the defendants for the dismissal of the suit for lack of jurisdiction. 2. The facts which are relevant for the decision of the present revision petition are that the plaintiffs Smt. Usha Goel etc. filed a suit for declaration and permanent injunction against Sanjay Kumar Jain and others defendants, alleging herein that one Nemi Chand Jain had executed a registered Trust deed dated 11.11.1954 for creation of a Trust known as Rai Bahadur Makhan Lal Trust. It was alleged that since defendant No. 1 had started interfering in the affairs of the Trust, Smt. Usha Goel plaintiff No. 1 who was the only surviving legal heir of Nemi Chand Jain executed a registered deed dated 6.1.1995, whereby plaintiff No. 1 appointed three other trustees including plaintiffs No. 2 and defendant No. 3 in order to manage the said Trust and since then the said trustees were managing the affairs of the said Trust. It was alleged that in the meanwhile defendant No. 1 filed a false complaint against the plaintiffs and defendant No. 3 under various Sections of the I.P.C. with the Rewari Police and at the asking of police, plaintiffs No. 1 and 2 and defendant No. 3 appeared before the D.S.P. who asked them to get the regisered deed dated 6.12.1995 cancelled and it was under the said threat that plaintiffs No. 1 and 2 and defendant No. 3 were left with no other option but to comply with the wishes of the D.S.P. and thereupon they executed the cancellation deed dated 26.11.1996 in the presence of the police at Rewari. It was alleged that the said cancellation deed dated 26.11.1996 was illegal and be declared as null and void as it was against the provisions of the Indian Trusts Act (Sections 70 and 71). It was further alleged that defendant No. 3 was threatening to disrupt he normal functioning of the Trust. It was accordingly prayed that a decree for declaration be passed to the effect that alleged cancellation deed dated 26.11.1996 was illegal, null and void and not binding on the plaintiffs and they were still trustees of the Trust. It was further alleged that defendant No. 3 was threatening to disrupt he normal functioning of the Trust. It was accordingly prayed that a decree for declaration be passed to the effect that alleged cancellation deed dated 26.11.1996 was illegal, null and void and not binding on the plaintiffs and they were still trustees of the Trust. By way of consequential relief, it was prayed that defendant No. 1 be restrained from interfering in any manner whatsoever in the normal functioning of the activities of the Trust and the Dharmsala run by the Trustees. The said suit was filed by the plaintiffs in the civil Courts at Rewari. 3. Subsequently, defendant No. 1, namely Sanjay Jain filed an application dated 16.4.1998 for the dismissal of the suit for want/lack of jurisdiction, alleging therein that the issues involved in the present suit were required to be dealt with under the provisions of Section 92, C.P.C. as the Trust in question was a public charitable Trust and as such the jurisdiction was only with the District Judge and not to the Civil Court to decide the said dispute. It was accordingly prayed that the suit of the plaintiffs be dismissed. The plaintiffs filed a reply to the said application, alleging therein that the present case was not covered under the provision of Section 92 C.P.C. as the present case does not come within the purview of Section 92, C.P.C. It was alleged that defendant No. 1 was not trustee of the Trust and had no right to manage the Trust. It was accordingly prayed that the application be dismissed. 4. The learned trial Court after hearing both sides and perusing the record dismissed the application of defendant No. 1 vide order dated 9.9.1998, holding that there was no need to obtain sanction under Section 92, C.P.C. before filing the present suit. Aggrieved against the said order of the learned trial Court, defendant No. 1 Sanjay Jain has filed the present revision petition. 5. Notice of motion was issued. Counsel for the parties have been heard. 6. Aggrieved against the said order of the learned trial Court, defendant No. 1 Sanjay Jain has filed the present revision petition. 5. Notice of motion was issued. Counsel for the parties have been heard. 6. Learned counsel appearing for the petitioner submitted before me that after going through the averments made in the plaint including the prayer clause, it would be clear that the present case was clearly covered by the provisions of Section 92, C.P.C. Reliance was placed on Sugra Bibi v. Hazi Kummu Mia, A.I.R. 1969 S.C. 884, Charan Singh and Anr. v. Darshan Singh and Ors., A.I.R. 1975 S.C. 371, Narain Lal v. Sunderlal Tholia, A.I.R. 1967 S.C. 1540 and Janakirama Iyer and Ors. v. P.M. Nilakanta Iyer and Ors., A.I.R. 1962 S.C. 533. 7. However, I find no force in these submissions of the learned counsel for the petitioner. In the present case, the plaintiffs are only seeking declaration for getting the cancellation deed dated 26.11.1996 declared as illegal and void on various grounds including the plea that the same was obtained from them under threat from the police and that it was contrary to the provisions of Section 70 and 71 of the Indian Trusts Act and that the plaintiffs continued to be the Trustees by virtue of the earlier Trust Deed. It was only as a consequential relief that it was prayed that defendant No. 1 be restrained from interfering in any manner whatsoever in the normal functioning of the activities of the Trust and also the Dharmsala run by the Trustees. In Swami Parmatmanand Sarswati and Anr. v. Ramji Tripathi and Anr., A.I.R. 1974 S.C. 2141, it was held as under:- "A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray or one or more of the reliefs that are mentioned in the section. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray or one or more of the reliefs that are mentioned in the section. It is therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail and even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights or any other person or persons in whom they are interest, then the suit would be outside the scope of Section 92...............A suit whose primary object or purpose is to remedy the infringement of an individual right of to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 of the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trees is asserted or denied and relief asked for on that basis, the suit falls out side Section 92." 8. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trees is asserted or denied and relief asked for on that basis, the suit falls out side Section 92." 8. It was further held in the said authority that where two or more persons interested in a trust bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. It was further held that if on the allegation in the plaint it is clear that the purpose of the suit was to vindicate an individual right, there was no reason to hold that the suit was brought to uphold the rights of the beneficiaries of the trust merely because the suit was filed by two or more members of the public after obtaining sanction of the Advocate General and claiming one or more reliefs specified in the Section. It was further held that there was no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public because it is the object or purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third person. 9. In view of the law laid down by Honble Supreme Court, in the above mentioned authority, I am of the opinion that on the facts and circumstances of the present, it would be clear that the plaintiffs were not suing to vindicate the right of the public but were seeking a declaration of their individual or personal rights. In the present case there is nothing to indicate that there was a breach of the trust or that direction of the Court was necessary for the administration of the trust. In the present case there is nothing to indicate that there was a breach of the trust or that direction of the Court was necessary for the administration of the trust. On the other hand, in the present case, the plaintiffs were seeking a declaration with regard to the cancellation deed dated 26.11.1996 that the same was illegal and void and there is nothing to indicate that any direction of the Court was necessary for the administration of the trust. Furthermore, the question as to whether the suit is to vindicate a personal or individual right of a third person has to be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. In the present case as referred to above, the dominant purposes of the suit in the light of the allegations made in the plaint is to get the cancellation deed dated 26.11.1996 declared as illegal and void. 10. Similarly in Harendra Nath Battacharya and Ors. v. Kaliram Das (dead) by his legal representatives and Ors., A.I.R. 1972 S.C. 246, it was held by their Lordships of the Supreme Court that a suit under Section 92 C.P.C., can proceed only on the allegations that there is a breach of public trust or that directions from the Court are necessary for the administration of the trust and in the suit there must be a prayer for one or other of the reliefs that are specifically mentioned in the Section and only then the suit has to be filed in conformity with the provisions of Section 92, C.P.C. 11. In view of the law laid down in the above mentioned authorities, it could not be said that the present suit will fall under the provisions of Section 92, C.P.C. 12. Various authorities relied upon by learned counsel for the petitioner in my opinion, would have no application to the facts of the present case. In Charan Singhs case (supra) it was held by Their Lordships of the Supreme Court that maintainability of a suit under Section 92, C.P.C. depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. In Charan Singhs case (supra) it was held by Their Lordships of the Supreme Court that maintainability of a suit under Section 92, C.P.C. depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. It was further held that where the plaintiffs allege acts of breach of trust, mis-management, undue interference with the rights of the public for the worship of Granth Sahib and wanted a decree of the Court against the defendant to force him to carry out the object of the trust and to perform his duties as a trustees, the suit was a suit for a decree under Section 92. It was further held in the said authority that on reading of the plaint as a whole, it was not a suit where the plaintiffs wanted a declaration of their rights for the religious institution in respect of Granth Sahib but it was a suit where they wanted enforcement of due performance of the duties of trustees in relation to a particular object of the trust. In my opinion, the law laid down in this authority would have no application to the facts of the present case. In Sugra Bibis case (supra) it was held that the provisions of Section 92, C.P.C. would not be attracted unless the suit is of representative character instituted in the interest of public and not merely for vindication of individual or personal rights of the plaintiffs. The law laid down in this authority would be of no help to the petitioner since in the present suit the plaintiffs were merely vindicating their individual and personal rights and this suit was not instituted by them in the interest of the public. In Narain Lals case (supra), it was held that an authority to sue given by the Advocate General under Section 92 to several persons is a joint authority and must be acted upon by all jointly and suit by some of them only cannot be in conformity with the provisions of Section 92, C.P.C. The law. laid down in this authority would have no application to the facts of the present case as the plaintiffs have filed the present suit in their individual rights. laid down in this authority would have no application to the facts of the present case as the plaintiffs have filed the present suit in their individual rights. In Janakirama Iyers case (supra) it was held by their Lordships of the Supreme Court that in construing the plaint, the Court must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form. In the present case, after going through the allegations made in the plaint, it would be clear that the present case was not covered under the provisions of Section 92 C.P.C. On the other hand, in the present case, the plaintiffs have filed a suit seeking declaration of their individual or personal rights and as such the suit would not be covered under Section 92, C.P.C. 13. In view of the law laid down by their Lordships of the Supreme Court in the authorities referred to above and taking into consideration the facts and circumstances of the present, it could not be said that the trial Court had committed any illegality or irregularity in exercise of its jurisdiction while dismissing the application of defendant No. 1 for the dismissal of the suit for want of jurisdiction, which may require interference by this Court in exercise of its revisional powers. 14. For the reasons recorded above, finding no merit in this revision petition the same is hereby dismissed with no order as to costs. 15. The parties through their counsel are directed to appear before the learned trial Court on 31.3.2000 for further proceedings in accordance with law.