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2019 DIGILAW 2456 (ALL)

Ramji Pandey v. Arya Ayurvedic Trust Banaras

2019-10-31

ANJANI KUMAR MISHRA

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ORDER : Anjani Kumar Mishra, J. 1. Heard Shri S.C. Verma, learned Senior Advocate for the revisionists. 2. The instant revision is directed against the order dated 08.04.2019, whereby an application under Order 7 Rule 11 CPC filed by the revisionist has been rejected by the trial Court. 3. The suit wherefrom this revision arises is one for permanent injunction filed by the opposite parties. 4. In the application under Order 7 Rule 11 CPC, it was averred that the plaint was liable to be rejected as it disclosed no cause of action. The plaintiff was not recorded over the property regarding which injunction has been sought. A part of the property in question had been transferred in favour of the defendant no. 8, who was also mutated in pursuance thereof. No relief could be granted to the plaintiff on account of pendency of a Writ Petition No. 2671 of 1980 pending before the High Court, which arose from a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. The suit has been filed by the plaintiff no. 1, a Trust, through its Secretary, but it has not been stated in the plaint as to how the Secretary had a right to file the suit. The plaintiff no. 2 has no concern with the disputed property. 5. The application was contested by the plaintiffs alleging among others that the legal status of the plaintiff, Arya Ayurvedic Trust had already been determined in the earlier litigation between the parties. 6. The trial Court observing that since only the plaint allegations were to be considered while dealing with an application under Order 7 Rule 11 C.P.C. and finding that there was no averment therein, whereby the plaint could be rejected under Order 7 Rule 11 CPC rejected the application. 7. It also observed that the original Trust document empowered the trustees to alter any of the conditions of the trust or to make rules and regulations consistent with the objects of the trust and that there was material to show that Ravi Agarwal had been appointed as Secretary of the Trust. 8. Before this Court, the contention of counsel for the revisionist is that trust is not a legal entity, neither it is a juristic person. The Secretary who had filed the suit has been removed hence there is nobody to prosecute the suit. 8. Before this Court, the contention of counsel for the revisionist is that trust is not a legal entity, neither it is a juristic person. The Secretary who had filed the suit has been removed hence there is nobody to prosecute the suit. The plaint was therefore, liable to have been rejected under Order 7 Rule 11 CPC and in failing to do so the Court below has committed manifest illegality. 9. He has also placed reliance upon a reply received under the Right to Information Act to submit that the trust in question is not registered under the Societies Registration Act. He has also relied upon Duli Chand Vs. M/s. Mahabir Pershad Trilok Chand Charitable Trust, Delhi, AIR 1984 Delhi 145, wherein, it has been held that a suit by a co-trustee on the basis of a resolution passed by other co-trustees authorising filing of a suit would not be maintainable because the position of trustees is exactly the same of any other set of co-owners who must necessarily join together to file a suit. 10. It has also been held that a trust is not like a Corporation which has a legal existence of its own and, therefore, can appoint any agent. It is the trustees of a Trust who are legal entities. 11. The ratio of the judgment cited is that all co-trustees must join in filing a suit unless the instrument of Trust provides otherwise. In the same judgment in paragraph 19, it has been observed as follows:- "(19) It may now be mentioned that to provide for a contingency like the present, it is often stated in the trust-deed or some other document by which a trust is created that a managing trustee or other trustees may institute proceedings on behalf of the Trust. When there are more than one trustee, it often happens that to facilitate the functioning of the Trust the same is registered as a society under the Societies Registration Act, 1860. It so happened, that the present Trust has also been registered under the Societies Registration Act, 1860, and an order to this effect has registered the Trust as a society vide Registration No. 10000 of 1979 dated 25th January, 1979." 12. Reliance has also been placed upon Atmaram Ranchhodbhai Vs. It so happened, that the present Trust has also been registered under the Societies Registration Act, 1860, and an order to this effect has registered the Trust as a society vide Registration No. 10000 of 1979 dated 25th January, 1979." 12. Reliance has also been placed upon Atmaram Ranchhodbhai Vs. Gulamhusein Gulam Mohiyaddin and another, AIR 1973 Gujarat 113, wherein also it has been held that all co-trustees must join in filing a suit and one single co-trustee if he is a Managing Trustee, unanimously chosen by all the co-trustees cannot maintain a suit, unless the instrument of Trust so mandates. 13. Thus, the contention of counsel for the revisionist is that the trust is not a Registered Society and therefore, the Secretary alone could not have filed the suit. In any case, the Secretary has been removed and therefore, the plaint should have been rejected as there is no one to prosecute it. 14. Upon a consideration of the submissions made at the Bar and upon a perusal of the record, this Court finds that Annexure 2 to the affidavit filed in support of the revision, is a copy of the Trust Deed dated 03.05.1941. Appended at its bottom on page 68 of the e-file (internal page 16 of Annexure 2), is a certificate of renewal of Raja Baldev Das Birla Ayurvedic Hospital, the plaintiff no. 2. This certificate of renewal of the Society of this name aforesaid is by the Assistant Registrar. 15. The trust deed Annexure 1 whereby Arya Ayurvedic Trust, Banaras has been created speaks of establishment of Raja Baldev Das Birla Ayurvedic Hospital by the Trust. There is also an averment in the plaint that the Secretary of Raja Baldev Das Birla Ayurvedic Hospital and the Arya Ayurvedic Trust, Banaras is the same, namely Ravi Agarwal. 16. The judgments cited by counsel for the revisionist do not hold that a Secretary of a Trust, which has been registered as a registered society under the provisions of the Societies Registration Act, cannot maintain a suit. 17. The contention of counsel for the revisionist that the trust in question is not a Registered Society is not conclusively established. 16. The judgments cited by counsel for the revisionist do not hold that a Secretary of a Trust, which has been registered as a registered society under the provisions of the Societies Registration Act, cannot maintain a suit. 17. The contention of counsel for the revisionist that the trust in question is not a Registered Society is not conclusively established. The reply received by the revisionist under the Right to Information Act, copy whereof has been filed as Annexure 3 to the supplementary affidavit issued by the Assistant Registrar, Varanasi, only states that it does not appear that any Society by the name of Arya Ayurvedic Trust, Varanasi has been registered. This reply received under the Right to Information Act, in my considered opinion, is not categorical. In any case, this reply is of no consequence because it is a document filed by the defendant-revisionist. It document cannot be looked into while dealing with an application under Order 7 Rule 11 CPC, which has to be determined exclusively upon consideration of the plaint averments. 18. The submission that Ravi Agarwal, the Secretary of the plaintiffs has ceased to be so is again a question to be determined on the basis of evidence that may be led by the parties. The submission, in any case, is the defence of the revisionist which is not liable to be considered while dealing with an application under Order 7 Rule 11 CPC. 19. In any case, it is not the case of the revisionist that Ravi Agarwal was not the Secretary of the plaintiffs 1 and 2 on the date, the suit was instituted. In case, Ravi Agarwal is no longer, the Secretary the question at best would be one of abatement of the suit but would not entitle the Court to reject the plaint under Order 7 Rule 11 CPC. 20. In view of the foregoing, I do not find any illegality or jurisdictional error in the impugned order. The impugned order, therefore, cannot be interfered with. 21. The revision is accordingly dismissed.