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2015 DIGILAW 864 (CAL)

Banwarilal Jalan v. Prameswari Devi

2015-10-08

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT Jyotirmay Bhattacharya,J. This First Miscellaneous Appeal is directed against an order being No.36 dated 20th December, 2014 passed by the learned Additional District Judge, 10th Court at Alipore in Title Suit No.3 of 2010, at the instance of the plaintiffs/appellants. By the impugned order, leave which was granted under Section 92 of the Civil Procedure Code in favour of the plaintiffs, was revoked. The legality and/or validity of the said order is under challenge in this appeal. Let us now consider the merit of the instant appeal in the facts of the present case. Revocation of the leave which was granted under Section 92 of Civil Procedure Code in favour of the plaintiffs was sought for, on three-fold grounds which are as follows:- i) The trust has not been made a party defendant. ii) The plaintiff No.2 is patently not “a person interested” as contemplated in Section 92 of the Civil Procedure Code to institute a suit under the said section either as a trustee or as a person enjoying the benefit of the said charitable trust or in any other way. iii) The purport and nature of the allegations made in the plaint makes it quite obvious that the plaintiff No.1, as an alleged trustee seeks the enforcement of his alleged rights and obligations under the trust and not for vindication of any public right or general right of the public. The suit is fundamentally concerned with and centres round personal family feuds without any pretence of public good in mind. The learned Trial Judge revoked the leave granted under Section 92 of the Civil Procedure Code on two grounds. The learned Trial Judge held that in a proceeding for seeking leave to institute a suit under Section 92 of the Civil Procedure Code, trust is a necessary party to the proceeding and for nonjoinder of the trust as a party to the said proceeding, the said proceeding is liable to be dismissed. The learned Trial Judge further held that the plaintiff No.2 being neither a trustee nor a person having interest in the trust nor a person claiming any benefit under the trust, cannot be held to be a person interested within the meaning of the expression “person having an interest in the trust” , used in Section 92 of the CPC. The learned Trial Judge further held that the plaintiff No.2 being neither a trustee nor a person having interest in the trust nor a person claiming any benefit under the trust, cannot be held to be a person interested within the meaning of the expression “person having an interest in the trust” , used in Section 92 of the CPC. Thus, the learned Trial Judge held that if the plaintiff No.2 is not a person interested in the trust then the pre-condition for grant of leave to sue under Section 92 of the Civil Procedure Code, is not satisfied as only one trustee, namely, the plaintiff No.1 alone cannot seek such leave under Section 92 of the Civil Procedure Code. The learned Trial Judge, however, did not consider the other ground of revocation i.e, seeking such leave to sue is the outcome of family feuds, which was made out by the defendant No.1 in his said application. Before we proceed to consider the merit of the instant appeal, we like to mention here that the defendant No.1, who applied for rejection of the plaint and prayed for revocation of the leave granted by the learned Trial Judge, has filed an application before this Court praying for his transposition to the category of the plaintiff. Mr. Sen, learned Advocate appearing for the defendant/respondent No.1 submits that his client does not want to press the application under Order 7 Rule 11 of the Code of Civil Procedure. In effect he prayed for recall of the order of rejection of the plaint and for allowing his client to be transposed to the category of the plaintiff. Let us first for all consider the merit of this application before proceeding to consider the merit of this appeal. Application for revocation of the leave granted by the learned Additional District Judge, was filed by Mr. Sen’s client before the learned District Judge. On his application the leave which was granted under Section 92 of the Code of Civil Procedure, was revoked. Thus, the application which was filed by him was allowed. Once his application was allowed, he, in our considered view, cannot apply for withdrawal of the said application. An application can be withdrawn before its disposal. The prayer for withdrawal of the application cannot be allowed after its disposal. Thus, the application which was filed by him was allowed. Once his application was allowed, he, in our considered view, cannot apply for withdrawal of the said application. An application can be withdrawn before its disposal. The prayer for withdrawal of the application cannot be allowed after its disposal. As such at this stage we cannot permit the defendant/respondent No.1 to withdraw the said application. Let us now consider the prayer of the defendant/respondent No.1 for his transposition to the category of the plaintiff. On perusal of the leave application/plaint, we have seen that several allegations were made against the defendant No.1. Reliefs have also been claimed against him in the plaint. Since allegations are made against the said defendant in the plaint and reliefs have also been claimed against him, we cannot allow the said defendant to be transposed to the category of the plaintiff in the set of facts narrated in the said plaint constituting cause of action for filing the said application under Section 92 of the Civil Procedure Code. Accordingly his prayer for transposition to the category of the plaintiff is rejected. Let us now consider the merit of the instant appeal in the facts of the present case. We have already mentioned above that the leave which was granted under Section 92 of the Civil Procedure Code was revoked by the learned Additional District Judge primarily on two grounds, namely, (i) trust being the necessary party having not been impleaded in the proceeding, the application is not maintainable and (ii) two interested persons have not come forward seeking leave under Section 92 of the Civil Procedure Code. Let us deal with the point of maintainability of this proceeding due to nonjoinder of necessary party. Mr. S. Sarkar, learned Senior Counsel appearing for the respondent No.2, has drawn our attention to the pleadings made out in the said application and the reliefs claimed therein. He pointed out that one of such reliefs claimed in the suit relates to framing of scheme relating to the trust. He submitted that when framing of scheme relating to trust is prayed for, trust being a necessary party must be added as a party in the proceeding. He pointed out that one of such reliefs claimed in the suit relates to framing of scheme relating to the trust. He submitted that when framing of scheme relating to trust is prayed for, trust being a necessary party must be added as a party in the proceeding. He, by relying upon the following two decisions of the Hon’ble Madras High Court submitted that the trust being necessary party having not been impleaded to the proceeding, suit was liable to be dismissed:- i) AIR 1988 Madras 1 S Guhan & Ors. V. Rukmini Devi Arundale & Ors. ii) AIR 2003 Madras 241 L. M. Menezes & Ors. V. Most Rev. Arul Das Jamas & Ors. Mr. Chatterjee, learned Advocate appearing for the plaintiff, refuted such submission of Mr. Sarkar by submitting that trust is not a necessary party in such proceeding. He submits that trust is not a juristic person, which is incapable of representing itself before the Court of law. According to him, trust is nothing but an obligation reposed on the trustees for carrying out their duties as per the terms of the trust deed for fulfilling the object for which the trust was formed. He submitted that when all the trustees of the said trust are parties to the proceeding, absence of the trust cannot vitiate the proceeding. He also made an alternative argument before this Court by submitting that even if it is ultimately found that the trust is a necessary party, then by following the principle of avoidance of multiplicity of proceeding, the trust can be impleaded as a party in the present proceeding, in exercise of the Court’s suo motu power under Order 1 Rule 10(2) of the Civil Procedure Code. To support his submission that the trust is not a necessary party, Mr. Chatterjee has relied upon a decision of the Madras High Court reported in 171 LR (Madras) page 143. He has also relied upon a decision of the Hon’ble Supreme Court in the case of Savitri Devi V. District Judge, Gorakhpur & Ors. reported in 1999(2) SC page 577 wherein it was held by the Hon’ble Supreme Court that avoidance of multiplicity of proceeding is the other object of addition of party under Order 1 Rule 10(2) of the Civil Procedure Code. reported in 1999(2) SC page 577 wherein it was held by the Hon’ble Supreme Court that avoidance of multiplicity of proceeding is the other object of addition of party under Order 1 Rule 10(2) of the Civil Procedure Code. After considering the rival contention of the parties and after considering the decisions cited at the bar, we have come to a conclusion that the trust being not a juristic person need not be added as a party in such proceeding particularly when all the trustees are before the Court. If the trust is added, a question will arise as to who will represent the said trust. Plaintiff No.1 is admittedly a trustee. Both the defendant Nos.1 and 2 are trustees. They are fighting with each other. If the trust is added then another front of dispute will be introduced between the parties as to who will represent the trust. To avoid such a situation it will be better if the trust is not impleaded as a party in such a proceeding. Since all the trustees are parties to the proceeding, whatever scheme will ultimately be framed by the Court, will be the guiding rules for the trustees for administration of the trust. All the trustees will be bound by the scheme which will be framed by the Court. Even their successors will also be bound by the scheme to be framed by the Court. As such even in the absence of the trust, the suit can be proceeded with. We thus, hold that for non-joinder of the trust, the leave which was granted under Section 92 of the Civil Procedure Code, ought not to have been revoked. Let us now consider the other ground on which leave granted under Section 92 of the Civil Procedure Code was revoked. Learned Court below held that the plaintiff No.2 is not a person interested. As such the condition for maintaining an application under Section 92 of the Civil Procedure Code is not fulfilled. Let us now consider the legality of such finding of the learned Trial Judge. Admittedly, the plaintiff No.1 is a trustee. It is also an admitted fact that the plaintiff No.2 is not a trustee. The plaintiffs however, claim that the plaintiff No.2 as a person interested in the trust has joined with the plaintiff No.1 for seeking the leave under Section 92 of the Civil Procedure Code. Admittedly, the plaintiff No.1 is a trustee. It is also an admitted fact that the plaintiff No.2 is not a trustee. The plaintiffs however, claim that the plaintiff No.2 as a person interested in the trust has joined with the plaintiff No.1 for seeking the leave under Section 92 of the Civil Procedure Code. Section 92 of the Civil Procedure Code, provides that such leave to sue may be sought for by the learned Advocate General or by two or more persons having an interest in the trust. Reading the objects for which the trust was created, no one can express any doubt about the nature of the trust which is undoubtedly a public trust. The plaintiff No.1 and the defendant Nos. 2 & 3 are trustees of such public trust. Plaintiff No.1 alone cannot seek leave under Section 92 of Civil Procedure Code. Plaintiff No.2 claiming himself to be the representative of the public at large, joined with the Plaintiff No.1 as a person interested in the trust. Now a question has cropped up as to whether anyone, who is not a beneficiary under the trust and who is nor even remotely connected with trust can be regarded “as a person interested in the trust”. On reading the leave application and/or the plaint as a whole, we find that the plaintiff No.2 has neither claimed himself to be a beneficiary under the trust nor he has claimed that he has any subsisting interest even in the management and/or administration of the trust. As such apparently it appears that the plaintiff No.2 cannot be regarded as a person interested. Mr. Chatterjee, learned Counsel, however, relied upon the decision of the Hon’ble Supreme Court in the case of Venugopal Naidu Vs. Venkatrayulu Naidu Charities reported in AIR 1990 SC 444 to support his submission that a proceeding of this nature pertakes the character of a representative suit and as such anybody being the representative of the remotest public at large which has beneficial interest in the trust, can maintain an application under Section 92 of the Civil Procedure Code by describing himself as a party interested in the trust. We have already indicated above that the trust was created for charitable and religious purpose. It is a public trust. Suit which is contemplated under Section 92 of the Civil Procedure Code is in the nature of the representative suit. We have already indicated above that the trust was created for charitable and religious purpose. It is a public trust. Suit which is contemplated under Section 92 of the Civil Procedure Code is in the nature of the representative suit. As such any person who has taken upon himself the responsibility of representing all the beneficiaries under the trust can be regarded as a person interested in the trust. But now a question arises as to whether any person who is not a part of the beneficiaries under the trust, can he represent himself as the representative of the beneficiary or the group of beneficiaries. The answer is “No”. To become a representative, he/she must be one of such affected persons who is deprived of enjoying the beneficial interest under trust. Once he proves that he is a beneficiary under the trust and he is deprived of the beneficial interest due to mismanagement of the trust, he for himself as well as for the other affected beneficiaries can maintain a leave petition under representative nature of litigation under Order 1 Rule 8 of the Civil Procedure Code. We, thus, hold that when the plaintiff No.2 is not a beneficiary under the trust, he cannot take the responsibility of representing the affected public at large. Thus we hold that the plaintiff No.1 being a trustee alone cannot maintain the application under Section 92 of the Civil Procedure Code. Mr. Sarkar, learned Senior Counsel also tried to impress upon us by reading the pleadings of the suit and the reliefs claimed therein that the said proceeding is noting but an outcome of the family feuds. We have considered the plaint and/or the leave application as a whole but we are unable to find out any relief claimed in the said suit which was personal to the plaintiffs. The entire plaint allegations are against the defendant for improper administration and/or mismanagement of the trust. Relief for recovery of possession of portion of the trust property from some of the trustees have also been claimed in the said suit but neither the plaintiff No.1 nor the plaintiff No.2 prayed for recovery of such trust property to their benefit. They have prayed for direction upon the defendants for delivery of possession of the trust property to the trustees. They have prayed for direction upon the defendants for delivery of possession of the trust property to the trustees. Had any personal relief being sought for, then in view of the decision of the Hon’ble Supreme Court in the case of Vidyodaya Trust V. Mohan Prasad & Ors. Reported in 2008 (4) SC 116, leave under Section 92 of the Civil Procedure Code could have been refused. Since the plaintiffs are not seeking any declaration of their individual or personal right or the individual or personal rights of any other person or persons in whom they are interested, Leave under Section 92 of the Civil Procedure Code cannot be refused. Be that as it may, we hold that since two persons having interest in the trust have not come forward seeking leave to sue under Section 92 of the Civil Procedure Code, leave which was granted under Section 92 of the Civil Procedure Code, in our view was rightly revoked by the learned Additional District Judge. We, thus, approve the impugned order for the reason as aforesaid. The appeal is, thus, dismissed. All pending applications are disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.