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2021 DIGILAW 438 (KAR)

Havinal Saranabasappa v. A. Mahesh

2021-03-17

SACHIN SHANKAR MAGADUM

body2021
ORDER : Sachin Shankar Magadum, J. 1. The captioned civil revision petition is filed challenging the order dated 9.7.2013 passed in Misc. case No. 3/2013. 2. The respondents have filed the scheme suit under Section 92 seeking to appoint the first plaintiff as Trustee and to direct the defendant to furnish the accounts of the Trust for scrutiny. Having filed the suit under Section 92 of CPC, it appears an application was filed seeking leave of the Court to prosecute the scheme suit under Section 92 of CPC. This was strongly resisted by the petitioner contending that the respondents-plaintiffs having regard to the nature of the relief sought in the plaint cannot maintain the scheme suit under Section 92 of CPC. The Court below having heard the parties to the suit has allowed the petition filed under Section 92 of CPC permitting the respondents-plaintiffs to institute the suit under Section 92 of CPC. The said order is under challenge. 3. The learned counsel for the petitioner would vehemently argue before this Court and contend that the nature of relief sought in the plaint would clearly indicate that the respondents-plaintiffs are seeking remedy of infringement of an individual right and by filing the suit under Section 92 intends to vindicate a private right. To buttress his arguments, he would place reliance on the decision of the Apex Court rendered in Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another, AIR 1974 SC 2141 and the Division Bench decision of this Court in Sri. C.R. Shivananda and another vs. Sri. H.C. Gurusiddappa and others, 2012 (2) KCCR 1186 . By placing reliance on these two decisions, he would submit to this Court that the order passed by the Court below permitting the respondents-plaintiffs to institute the suit under Section 92 of CPC is palpably erroneous and the reasoning assigned by the learned Judge while allowing the Misc. applications runs contrary to the settled proposition of law rendered by the Hon'ble Apex Court cited supra. 4. Per contra, the learned counsel appearing for the respondents-plaintiffs would vehemently argue that the order under challenge does invite the ingredients of Section 92 of CPC and thereby the order under appeal would not warrant interference by this Court. applications runs contrary to the settled proposition of law rendered by the Hon'ble Apex Court cited supra. 4. Per contra, the learned counsel appearing for the respondents-plaintiffs would vehemently argue that the order under challenge does invite the ingredients of Section 92 of CPC and thereby the order under appeal would not warrant interference by this Court. He would further submit that the learned Judge has dealt in detail and by referring to the decisions which are squarely applicable to the present set of facts has allowed the miscellaneous application filed under Section 92 of CPC and has permitted the respondents-plaintiffs to prosecute the suit under Section 92 of CPC. 5. Heard the learned counsel for the petitioner and the respondents. 6. The respondents have filed the suit seeking for a direction to appoint the first plaintiff as the trustee and a further direction is sought against the defendant to furnish the accounts. For better understanding, the prayer made at Para 15 of the plaint is culled out as under : "15. PRAYER: Therefore, plaintiffs humbly pray that this Hon'ble Court may be pleased to: (i) appoint the first plaintiff as Trustee; (ii) to direct the defendant to furnish the accounts of the Trust for scrutiny; and (iii) to pass such other order/orders as this Hon'ble Court deems fit and proper in the circumstances of the case, which will meet the ends of justice." 7. By seeking the prayer at clause (i) of the prayer, the respondents-plaintiffs are clearly seeking personal remedy by invoking the provisions of Section 92 of CPC. The prayer sought in the plaint would squarely fall within the ambit of the proposition laid down by the Apex Court as well the Division Bench of this Court. On perusal of the prayer, I am of the view that the respondents-plaintiffs are suing the present suit to vindicate the personal rights and not the right of a public. In that view of the matter, the proposition laid down by the Apex Court in the decision cited supra is squarely application to the present case. The Hon'ble Apex Court at para 10 has held as follows : "A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. The Hon'ble Apex Court at para 10 has held as follows : "A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suit which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religions nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92." The above said observations made by the Apex Court is taken note of. The present suit is filed by the respondents-plaintiffs with an object to remedy the infringement of an individual right of the plaintiffs. Since plaintiffs are pursuing the present suit to vindicate a private right as held by the Apex Court and the Division Bench of this Court, plaintiffs cannot maintain the suit under Section 92 of CPC. 8. The present suit is clearly brought in by an individual seeking redressal of private rights, which is impermissible in a scheme suit. This material aspect has not been noticed by the learned Judge while examining the case of the respondents-plaintiffs. By taking note of the prayers sought in the plaint, I am of the view that the plaintiffs cannot seek a direction for appointment of the first plaintiff as the trustee since the said relief sought is an individual remedy and the same would not fall within the scope of Section 92 of CPC. By taking note of the prayers sought in the plaint, I am of the view that the plaintiffs cannot seek a direction for appointment of the first plaintiff as the trustee since the said relief sought is an individual remedy and the same would not fall within the scope of Section 92 of CPC. The impugned order passed by the Court below granting the relief to the respondents-plaintiffs to institute a suit under Section 92 of CPC is palpably erroneous and the same suffers from perversity and is liable to be set aside. 9. The application filed by the respondents-plaintiffs under Section 92 of CPC is rejected. However, the order passed by this Court would not come in the way of the respondents-plaintiffs in pursuing their individual remedy by instituting appropriate proceedings in accordance with law before the competent forum. 10. With these observations, the civil revision petition stands disposed of. All contentions are kept open.