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2009 DIGILAW 504 (KAR)

S. G. Sharadamma v. B. R. Srikantappa

2009-07-13

N.ANANDA

body2009
Judgment :- The matter is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal. 2. The trial count has granted leave under Section 92 CPC in the suit instituted by respondents for the following reliefs: "i) for a declaration that the suit properties are Trust Properties as per the Registered Will dated 14.03.1901. ii) that the Defendants 1 to 3 be removed from Trusteeship and that the Plaintiffs be appointed as new Trustees in respect of the said Trust and that the suit properties shall vest in the plaintiffs' as Trustees, iii) directing the defendants 1 to 3 to deliver possession of the Trust properties to the plaintiffs who are entitled for possession of the same. iv) directing accounts to be furnished by the defendants 1 to 3 directing them regarding the receipts and expenditure of the income in respect of the Trust Properties and for an enquiry to be made concerning the same, v) authorizing the new Trustees - Plaintiffs to lease the Trust properties, vi) directing the tenants of the 2nd item of the suit schedule property to deposit in court the rents payable by them in respect of the 2nd item of the suit schedule property till the disposal of the suit and continue to deposit the same afterwards, vii) to settle a scheme for a proper administration of the Trust properties. viii) to grant such other or further reliefs which the Honourable Court deems fit to grant to the plaintiffs in the circumstances of the case." 3. The notice of the application was served on defendants and the application was contested. The main object raised by defendants is that reliefs sought for in the suit do not fall within the purview of Section 92 CPC. The learned trial judge referring to various decisions, has held that reliefs for would fall within the purview of Section 92 CPC and accepted the application. Therefore, defendants are before this court. 4. The learned counsel for plaintiffs has raised a preliminary objection regarding maintainability of this petition under Section 115 CPC. The learned counsel for plaintiffs referring to judgment of this court reported in 2000 (3) Kar.L.J. 361 (in the case of Sri Ranganathan Swamy Prasanna Kaveri Trust (Registered) (Through Trustees), Bangalore & Ors. Vs. Therefore, defendants are before this court. 4. The learned counsel for plaintiffs has raised a preliminary objection regarding maintainability of this petition under Section 115 CPC. The learned counsel for plaintiffs referring to judgment of this court reported in 2000 (3) Kar.L.J. 361 (in the case of Sri Ranganathan Swamy Prasanna Kaveri Trust (Registered) (Through Trustees), Bangalore & Ors. Vs. K.V.Ramesh Kumar & Ors.) would submit that leave granted under Section 92 CPC does not amount to a case decided; it decides no rights of the parties inter se. Therefore, it is not a revisable under Section 115 CPC. 5. The learned counsel for defendants would submit, at the first instance defendants had filed W.P.No.13040/2008 by invoking Article 227 of the Constitution of India and this court permitted the petitioners to convert the writ petition to a civil revision petition. Therefore, the objection relating to maintainability of the civil revision petition is not sustainable. 6. The decision reported in 2000(3) Kar.L.J. 361 was rendered before amendment of Section 115 CPC by amendment of Section 115 CPC by amendment Act No.46/1999 with effect from 1.7.2002. The explanation under Section 115 after its amendment by Act No.46/1999 reads thus: "Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or order proceeding." 7. Therefore, preliminary objection of learned counsel for plaintiffs cannot be sustained. 8. The learned counsel for defendants relying on judgments reported in AIR 1952 SC 143 , AIR 1974 SC 2141 and 1980(2) Kar.L.J.469 would submit, the suit for a declaration that properties are trust properties, does not fall within the purview of Section 92 CPC. The suit under Section 92 CPC pre supposes existence of public trust of religious or charitable nature. The said suit can proceed only on the allegations that there was breach of trust and that direction of court is necessary for administration of trust. A suit filed under Section 92 CPC is of special nature. In considering the application for grant of leave, the court has to consider (i) whether there is a public trust, (ii) whether there are allegations of breach of trust and directions of the court are necessary for administration of such trust. The reliefs claimed in the suit should be one or more envisaged under 92(1) clauses (a) to (h). 9. In considering the application for grant of leave, the court has to consider (i) whether there is a public trust, (ii) whether there are allegations of breach of trust and directions of the court are necessary for administration of such trust. The reliefs claimed in the suit should be one or more envisaged under 92(1) clauses (a) to (h). 9. The learned counsel for plaintiffs relying on judgments reported in AIR 1935 Calcutta 805, AIR 1989 Allahabad 194 and also of this court reported in 1980(2) Kar.L.J. 469 would submit, while considering application under Section 92 CPC, court need not consider merits of the case, if the application acknowledges any of the relies enumerated under Section 92 CPC that would be sufficient to grant leave; the relief of declaration that suit property is a trust property could be included as an incidental relief. 10. In para 2 of this order I have narrated the reliefs prayed for in the suit. In order to decide whether the reliefs sought for in the plaint would fall under Section 92 CPC, it is necessary to state that first relief sought for in the suit is for a declaration that suit schedule properties are trust properties. At this juncture it is necessary to state, there are only two schedule properties. The rest of reliefs are dependent on relief No.1. In the plaint it is not stated that there exists a public charitable trust. The names of trustees and date of constitution of the trust are not forthcoming. The name of trust is also not found so also class of beneficiary either in the past or in the present. 11. In a decision reported in AIR 1952 SC 143 (in the case of Pragdasji Guru Bhagwandasji Vs. Ishwarlalbhai Narshibhai and Ors.) it is held, the relief praying for a declaration that properties in suit are trust properties and does not come under the provisions of under Section 92 CPC, it is held, in a suit framed under Section 92 CPC the only reliefs which the plaintiff can claim and the court can grant are those enumerated in different clauses of the Section 92 CPC. It is further held, the suit under Section 92 CPC is a suit of special nature which pre-supposes the existence of a public trust of a religious or charitable character. 12. It is further held, the suit under Section 92 CPC is a suit of special nature which pre-supposes the existence of a public trust of a religious or charitable character. 12. In a decision reported in AIR 1974 2141, it is held, "A suit under Sec.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 for one or more of the reliefs that are mentioned in the section. If the allegation of breach of trust is not substantiated or if the plaintiff has 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. 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 of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92." 13. This court in a decision reported in 1980 (2) Kar.L.J. 469 (in the case of The Church of South India Trust Association Vs. Rev.D.I.Anand & Ors,) has held, "24. Re.Point No.III. What is the scope of inquiry in an application made under S.92 of the Code? In considering an application under S.92 of the Code and granting leave if it so decides, the Court only lifts an initial impediment or a bar on the persons that claim to have an interest in a public trust to institute a suit in a Court without finally deciding any of the controversies in the suit to be filed by such persons. Any expression of opinion by the Court on an application is only for the purpose of that application and does not bind the parties or the Court itself which has to finally decide the suit. 25. A suit filed under S.92 of the Code is a suit of a special nature (vide Swami Paramatmanand Saraswati vs. Ramji Tripathi (10). Any expression of opinion by the Court on an application is only for the purpose of that application and does not bind the parties or the Court itself which has to finally decide the suit. 25. A suit filed under S.92 of the Code is a suit of a special nature (vide Swami Paramatmanand Saraswati vs. Ramji Tripathi (10). In considering an application for grant of leave, the court has to consider (i) whether there is a public trust; (ii) whether there are allegations alleging breach of trust or the directions of the Court are necessary for the administration of such a trust; (iii) that the suit to be filed must not only be in the interest of the plaintiffs individually but in the interest of the public or in the interest of the trust itself; and (iv) that the relief to be claimed in the suit should be for one of the reliefs mentioned in S.92 of the Code. While considering an application, the Court has to see only the allegations made in the application and the proposed plaint, without holding an inquiry into the truth or otherwise of those allegations. Even the opponents are only entitled to show that all or any of the factors necessary to give leave do not exist or any other threshold bar like a previous suit filed by two or more persons on the very same allegations for the very same reliefs had been dismissed by that or another court. What pleas can be urged as threshold bar cannot be exhaustively enumerated but has to be decided on the facts and circumstances of each case. An inquiry under S.92 is very limited. An examination of the order made by the learned District Judge discloses that he has not really applied his mind and has not found that leave was necessary to be granted and in that view also it is clear that he has acted with material irregularity affecting his jurisdiction." 14. In a decision reported in AIR 1989 Allahabad 194 (in the case of Ambrish Kumar Singh Vs. Raja Abhushan Bram Bramshsh & Ors,), the High Court of Allahabad has held, "10. Section 92 CPC was amended by the Code of Civil Procedure (Amendment) Act, 1976. In a decision reported in AIR 1989 Allahabad 194 (in the case of Ambrish Kumar Singh Vs. Raja Abhushan Bram Bramshsh & Ors,), the High Court of Allahabad has held, "10. Section 92 CPC was amended by the Code of Civil Procedure (Amendment) Act, 1976. Before this amendment suit could be filed either by the Advocate-General or two or more persons having interest in the trust and having obtained consent in writing of the Advocate-General. After the amendment the words "the consent in writing of the Advocate-General" were substituted by the words "leave of the court". While granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merit after the parties have led evidence in the suit. 11. So far as S.92, C.P.C. is concerned it does not contemplate of giving any notice to the proposed defendants before granting leave. However, it has been held by the decision of this court reported 1987 All LJ 369, Mahanth Gurumukh Das V. Bhupal Singh, that the proceedings under S.92 CPC are judicial proceedings and the order of the District Judge is judicial order. The Court should pass the order after hearing the defendants. It is not necessary to pass a detailed order. It is sufficient if the order indicates that it is the result of the due application of mind of the Judge. May be that he has not written very elaborate order which in my opinion it was actually not needed. There is application of mind. Moreover, I see no jurisdictional error or illegal exercise of jurisdiction." 15. In the aforestated decision it is held that the court need not pass a detailed order. Nevertheless it has to pass an order indicating that suit falls within the purview of Section 92 CPC. 16. In a decision reported in AIR 1935 Calcutta 805 (in the case of Abdul Majid & Ors. Vs. Akhtar Nabi & ANR.) it is held, if a dispute arises as to whether property is a public trust property or a private trust property that may be decided under Section 92 CPC. 17. 16. In a decision reported in AIR 1935 Calcutta 805 (in the case of Abdul Majid & Ors. Vs. Akhtar Nabi & ANR.) it is held, if a dispute arises as to whether property is a public trust property or a private trust property that may be decided under Section 92 CPC. 17. In the case on hand, plaintiffs have sought for a declaration that suit schedule properties are trust properties as per the registered will dated 14.3.1901. In the plaint the trust is not made a party. The existence of the trust cannot be discerned from the averments of plaint. In the circumstances, it is not possible to hold that averments of plaint and reliefs sought for in the suit would fall within the purview of Section 92 CPC. The learned judge without referring to averments of plaint and reliefs prayed for and without noticing the fact that the trust and trustees are not made parties, has granted leave under Section 92 CPC. The learned trial judge has exceeded the jurisdiction vested with the trial court. The learned trial judge has acted with material irregularity. 18. Therefore, I pass the following: The civil revision petition is accepted. The impugned order is set aside holding that suit instituted in O.S.No.2/2008 is not maintainable as it does not fall within the purview of Section 92 CPC.