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2013 DIGILAW 523 (UTT)

KRISHNA KUMAR SHARMA v. RAJENDRA SETHI

2013-08-13

PRAFULLA C.PANT

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. This revision, preferred under section 115 of Code of Civil Procedure, 1908, is directed against the order dated 25.07.2011 passed by District Judge, Hardwar, in Misc. Case No. 17 of 2003 whereby said court has allowed the application under section 92 of the Code. 2. Heard learned counsel for the parties, and perused the papers on record. 3. Brief facts of the case are that present revisionist Krishna Kumar Sharma is caretaker/manager of DHARMSHALA Ahata Jindaal, situated in Hardwar. In the earlier round of litigation he filed Suit No. 262 of 2001 (old no. 211 of 1997) for perpetual injunction against the present respondent Nos. 10 Tirth Ram Sahani, respondent No.11 Adarsh Kumar Bhasin and four others restraining them from interfering in the peaceful possession of the plaintiff, and his right to manage the property in suit. A counter claim was filed by the defendants (of said case) in said suit restraining the present revisionist from interfering in the management and running the property in suit, which is a DHARMSHALA of charitable in nature. In said suit vide judgment and decree dated 29.05.2004, the counter claim was dismissed, and perpetual injunction was granted in favour of the revisionist directing the defendants of said case not to interfere in his possession, and management of the property. It appears that defendants of said case filed First Appeal No. 50 of 2004 before this court in which cross objections were filed by the revisionist, as he was not found owner, by the trial court, of the property in suit. The First Appeal as well as the cross objections were dismissed by this court vide its judgment and decree dated 22.08.2007. 4. In the second (present) round of litigation respondent Nos.1 to 8, who were not parties to the earlier suit moved an application under section 92 of Code of Civil Procedure, 1908, seeking permission to file the suit in which relief is sought that a scheme of administration be prepared in respect of DHARMSHALA in suit, treating respondent Nos. 10 and 11 as trustees of the trust property. 5. 10 and 11 as trustees of the trust property. 5. Earlier the application under section 92 of C.P.C, was allowed by District Judge, Hardwar, vide his order dated 25.04.2006, which was set aside by this court vide its order dated 11.04.2007, passed in Civil Revision No.39 of 2006 and the District Judge was directed to decide the application under section 92 of the Code, afresh. Thereafter, vide impugned order dated 25.07.2011, the District Judge, Hardwar, has again allowed the application under section 92 of the Code, vide impugned order in compliance of this court’s directions issued in Civil Revision No. 39 of 2006 and Writ Petition No. 161 of 2008 (M/S). The said impugned order is challenged in the present revision. 6. The main grounds on which the impugned order dated 25.07.2011 allowing permission under section 92 of the Code, is challenged, are two fold i.e. (i) The matter already decided in the earlier round of litigation in Suit No. 262 of 2001 cannot be reopened and (ii) The relief sought in the present suit filed under section 92 of the Code are not covered under clause (a) to (h) of sub section (1) of section 92. 7. As far as the findings recorded in the earlier round of litigation are concerned, no doubt the parties to said suit and the persons claiming title through the parties of said suit, are bound by the findings recorded in that round of litigation in respect of property in suit. But same cannot be said in respect of those persons who were neither parties to said suit, nor claiming their rights through said parties. None of the respondent Nos. 1 to 8 who are the plaintiffs in the second round of litigation, were parties in the earlier round of litigation, nor they are claiming rights through the parties of said suit. As such, this court is of the view that on the above ground application under section 92 of the Code could not have been refused by the trial court. It is a different matter that the revisionist, who is defendant in the present round of litigation if raises the above plea in his written statement, the trial court may frame an issue in the matter and consequences of rejection of counter claim of present respondent Nos. It is a different matter that the revisionist, who is defendant in the present round of litigation if raises the above plea in his written statement, the trial court may frame an issue in the matter and consequences of rejection of counter claim of present respondent Nos. 10 and 11 (who were defendants in the earlier round of litigation) can be examined by said court. With this note this court would like to stop on the above matter here. 8. Now, I come to the next objection/ground raised by the revisionist that the suit for which, permission was sought by the respondent Nos. 1 to 8 is not covered under clause (a) to (h) of sub section (1) of section 92. After considering rival submissions this court is of the view that though there is no relief seeking to appoint or remove the trustee made in the present suit, but vesting of any property in a trustee as mentioned in clause (c) settling the scheme as mentioned in clause (g) and granting such further and other reliefs as the nature of the case may require as mentioned in clause (h) in sub section (1) of section 92, does encompass the reliefs of preparing scheme of administration of DHARMSHALA in question and the relief sought in respect of management thereof. 9. It is pertinent to mention here that in the earlier round of litigation in Suit No. 262 of 2001 though the revisionist (plaintiff of said case) was found manager of DHARMSHALA, but he was not found owner of said property. It is also relevant to mention here that the present respondent Nos. 10 and 11 in this revision, who were defendant No.3 and 4 in said suit also failed to be trustees of DHARMSHALA, as claimed by them. 10. In the case of T. Varghese George vs. Kora K. George and others (2012) 1 SCC page 369 referred on behalf of the revisionist, the main issue was whether trust was a public trust running only for a charitable purpose or a simply a minority educational trust. As such, issue involved in said case cannot be said to be similar issue involved in the present case. On behalf of the revisionist reliance was also placed in the case of Bishwanath and others vs. Sri Thakur Radha Ballabhji and others AIR 1967 SC page 1044. As such, issue involved in said case cannot be said to be similar issue involved in the present case. On behalf of the revisionist reliance was also placed in the case of Bishwanath and others vs. Sri Thakur Radha Ballabhji and others AIR 1967 SC page 1044. The general principle laid down in said case is that to invoke section 92 of Code of Civil Procedure, 1908. Three conditions must be satisfied, namely (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust and a direction of Courts is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated in section 92. In the present case prima facie it cannot be said that the three conditions are not fulfilled. Having gone through the impugned order passed by the trial court, this court is of the view that the trial court has not looked to the above essential requirements for granting the permission to sue under section 92 of the Code. No doubt the declaration that a property belongs to a trust is held to be outside the scope of section 92. But there is no such declaration sought in the relief claimed in the plaint by the plaintiff (respondent Nos. 1 to 8) in the present case. 11. Also, case of Uma Shanker vs. Salig Ram 1974, INDLAW (Allahabad) page 266, was referred on behalf of the revisionist and it is argued that a suit filed under section 92 of the Code of Civil Procedure, 1908, cannot bind the strangers. I have gone through said case law. In the present case in substance what has been prayed in the suit is the preparation of scheme of administration in respect of the trust property, and not the declaration of endowed property to bind any stranger. The revisionist being manager of DHARMSHALA cannot claim now to be stranger after seeking injunction by filing earlier suit No. 262 of 2001. 12. Therefore, without expressing any opinion as to final merits of the suit, pending before the trial court, and without prejudice to the rights of the parties before the trial court, this Court is not inclined to interfere with the impugned order dated 25.07.2011 passed by the District Judge, Hardwar, in Misc. 12. Therefore, without expressing any opinion as to final merits of the suit, pending before the trial court, and without prejudice to the rights of the parties before the trial court, this Court is not inclined to interfere with the impugned order dated 25.07.2011 passed by the District Judge, Hardwar, in Misc. Case No. 17 of 2003, granting permission under section 92 of C.P.C to the respondent Nos. 1 to 8, to file the suit. 13. Accordingly, the revision is dismissed summarily with the observations as above. (Stay Application No. 13945 of 2011 also stands dismissed).