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2013 DIGILAW 1414 (ALL)

Morar Bhai Thakkar v. Subhash Chandra Sharma

2013-05-13

RAJES KUMAR

body2013
JUDGMENT Rajes Kumar,J.: - Heard Sri H.M.B. Sinha, learned counsel for the appellants and Sri D.V. Jaiswal, learned counsel appearing on behalf of the respondents. 2. By means of the present appeal, the appellants are challenging the order dated 3.12.2009 passed by the Additional District Judge, Kanpur Nagar by which he has rejected the application under Section 92 of C.P.C. seeking permission to file a suit against the alleged public trust. The said application has been rejected mainly on the ground that the appellants are the tenants in the premises of the trust and, therefore, they are not entitled to get permission to sue. 3. Learned counsel for the appellants submitted that it is true that in the application the appellants have admitted that appellant nos. 1 and 2 are tenants but the fact is that their father is a tenant of the premises of the trust and the suit of ejectment has been filed against the father of the appellants being suit no. 312 of 2004, which is stated in paragraphs- 6 & 9 of the counter affidavit filed by the respondents. 4. Sri D.V. Jaiswal, learned counsel for the respondents submitted that it is true that appellant nos. 1 and 2 are not the tenants of the premises. He submitted that appellant no. 1 is the son of Sri Dharam Singh Sheoji Thakka and brother of Sri Ramesh Thakkar. Sri Dharam Singh Sheoji Thakkar and Sri Ramesh Thakkar, both are the tenants of the deity and trust against whom the suit for recovery of rent and ejectment, being SCC Suit No. 2 of 2005, was filed by the deity in the court of Judge Small Causes Court, Kanpur Nagar and Suit No. 4 of 2004 and Suit No. 313 of 2004 have been filed against Sri Ramesh Thakkar and the same are also pending before the Judge Small Causes Court, Kanpur Nagar. This fact has been stated in paragraph-4 of the counter affidavit. He further submitted that appellant no. 1 is living as a family member in the premises of the deity. With regard to appellant no. 2, it is submitted that his father Sri Murari Lal Sharma was the tenant of the deity. He had three sons, namely, Sri Nand Kishore, Sri Nand Kumar and Sri Krishna. Murari Lal Sharma died. He further submitted that appellant no. 1 is living as a family member in the premises of the deity. With regard to appellant no. 2, it is submitted that his father Sri Murari Lal Sharma was the tenant of the deity. He had three sons, namely, Sri Nand Kishore, Sri Nand Kumar and Sri Krishna. Murari Lal Sharma died. Subsequently, his two sons, namely, Sri Nand Kishore and Sri Nand Kumar became tenants of two portions but did not pay the rent w.e.f. 22.7.1987. Thus, the ejectment suits, being suit nos. 303 of 2004 and 315 of 2004 were filed against them. This fact has been stated in paragraph-7 of the counter affidavit. 5. In view of the above, it is clear that both, appellant nos. 1 and 2, in fact, are not the tenants and their fathers and brothers are the tenants against whom the suit for recovery and ejectment have been filed. Therefore, the rejection of application under Section 92 of C.P.C. on the ground that the appellants are the tenants is not justified. 6. Learned counsel for the respondents submitted that for seeking the permission under Section 92 of C.P.C. the appellants have to establish that the trust is the public trust and they are interested persons inasmuch as there is a breach of trust, which they fail to prove. He submitted that mere fact that they are worshipers and had the right to worship in a Temple will not give the right to sue under Section 92 of C.P.C. 7. Reliance is placed on the decisions of the Madras High Court in the case of T.R. Ramchandra Iyer and another v. P.A. Parameswaran Munbu and others, reported in A.I.R. 1919 Madras 384, Mahant Rarnam Singh v. Gurdial Singh and another, reported in AIR 1967 Supreme Court 1415, Vaidyanatha Ayyar and another v. Swaminatha Ayyar and another, reported in 1924 Privy Council 221 (2) and Shiromani Gurdwara Prabandhak Committee v. Mahant Harnam Singh C. (Dead), M.N. Singh and others, reported in AIR 2003 Supreme Court 3349. 8. In my view, these aspects of the matter require consideration by the court below. 8. In my view, these aspects of the matter require consideration by the court below. The court below has rejected the application merely on the ground that the appellants are the tenants while the fact is that they are not the tenants but their fathers and brothers are the tenants and, therefore, very basis of rejection of the application does not exist. Let the trial court examine that whether the condition for granting the permission under Section 92 of C.P.C. exists. For granting the permission under Section 92 of C.P.C., the trial court has to examine that whether the trust is the public trust and the appellants are interested persons and there was a breach of trust. The burden lies upon the appellants to prove existence of the requirement for seeking the permission under Section 92 of C.P.C. 9. In view of the above, the appeal is allowed. The order dated 3.12.2009 passed by the Additional District Judge, Kanpur Nagar is set aside and the matter is remanded back to the court below to decide the Misc. Case No. 271/70/04 afresh in the light of the observations made above. The appellants may file certified copy of this order before the trial court within four weeks and the trial court is directed to decide the same within another period of six months in accordance to law.