HIGH COURT OF CHATTISGARH AT BILASPUR
CIVIL REVISION NO 87 OF 2010
Seth Kirodimal Dharmada Trust & others …Petitioners
VERSUS
Kalicharan Keshaan …Respondents
Shri BP Sharma, Advocate for the applicants.
Shri Sanjay K Agrawal with Shri Ankit Singhal, Advocates for respondent.
CORAM: Honble Mr N K Agarwal J
Dated: 15/02/2011
Judgement
REVISION PETITION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE
ORDER
(Passed on 15/02/2011)
1. Legality and propriety of the order dated 03.08.2010, passed by the District Judge, Raigarh, in Civil Suit No. 29- A/2010, whereby the petitioner’s application filed under Order 7 Rule 11 of CPC, read with Section 151 of CPC has been rejected, is under assail in this revision.
2. The facts giving rise to this revision are: the plaintiff/respondent instituted a suit before the District Judge, Raigarh, for declaration that resolution dated 21.02.10, passed by the applicants/defendants to remove the non applicant/plaintiff from trusteeship of applicant Trust is illegal, arbitrary and bad in law and the same is without jurisdiction as the resolution dated 21.08.01, whereby the applicant No. 3 & 4 were appointed as a trustee, and the resolution dated 05.11.07, whereby the applicant No. 5 was appointed as a trustee are illegal, arbitrary and bad in law and without jurisdiction. Consequential relief of injunction was also claimed.
3. The suit as per para 33 of the plaint, was valued for relief of declaration at Rs. 1000/- and for relief of permanent injunction at Rs. 1000/- and accordingly court fees is paid.
4. The applicants preferred an application under Order 7 Rule 11 of CPC raising preliminary objection regarding maintainability of the suit on the ground that suit is barred under Section 27(4) of the MP/CG Public Trust Act, 1951 (for short `the Act, 1951′). The maintainability of the suit was also assailed for want of trial court’s pecuniary jurisdiction.
5. The trial court dismissed the said application holding that suit is not barred under Section 27(4) of the Act, 1951, and question of proper valuation of the suit can be decided by framing preliminary issue in this regard.
6. Shri BP Sharma, learned counsel appearing for the applicants, by referring Sections 26 & 27 of the Act, 1951, would submit that under Section 27(4) of the Act, 1951, no suit relating to a public trust under Section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any court on any matter in respect of which an application can be made under Section 26. In the present case, the crux of the matter is that the plaintiff/respondent has been removed from trusteeship and new trustees have been appointed and challenge is to the appointment of the trustees and removing of plaintiff/respondent from the post of Trustee. In this view of the matter, specific jurisdiction has been conferred to the Registrar, Public Trust and the suit is apparently barred by Section 27(4) of the Act, 1951. In support of his contention, reliance has been placed upon the Division Bench judgment of MP High Court in case of Temple Achaleshwar v. Achaleshwar Public Trust1.
7. On the other hand, Shri Sanjay K Agrawal, learned counsel appearing for the respondent would submit that non applicant/respondent has filed the Civil Suit for declaration that the resolutions passed by the applicants/defendants is illegal, bad in law and against the Bye Laws of non applicant. It is well settled law that suit for declaration of resolutions passed by the trustee of public trust in its meetings as illegal and void, are outside the scope of Section 92 of CPC. A litigant having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. By placing reliance upon the judgment of Supreme Court in case of Swami Parmatmanand Saraswati v. Ramji Tripathi2, he would further submit that when the right to the office of a trustee is asserted or denied and the relief asked for on that basis, the suit falls outside Section 92 of CPC. There is no reason to think that whenever a suit is brought by two or more persons under Section 92 of CPC, the suit is to vindicate the right of the public. So far valuation is concerned, he would submit that the same is yet to be decided by the court below and for that issues have already been framed and the challenge is premature.
8. I have heard the counsel appearing for the parties and perused the order impugned.
9. The core question involved in the instant revision for decision making is whether the suit as framed is maintainable in the Civil Court in view of specific bar created by Section 27(4) of the Act, 1951.
10. Section 92 of CPC is reproduced below :
“92. Public charities.
(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 2[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree,-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) 4[or by any corresponding law in force in 5[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.
[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]]”
11. Under Section 26 of the Act, if the Registrar, on the application of any person interested in the public trust or otherwise is satisfied that – (a) the original object of the public trust has failed; (b) the trust property is not being properly managed or administered; or (c) the direction of the court is necessary for the administration of the public trust; he may after giving the working trustee an opportunity to be heard direct such trustee to apply to court for directions within the time specified by the Registrar, and if the trustee so directed fails to make an application as required, or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the court.
12. Under Section 27 (1) of the Act, 1951, on receipt of such application, the court shall make or cause to be made such inquiry into the case as it deems fit and pass such orders thereon as it may consider appropriate. Under Section 27 (2) of the Act, 1951, the court shall among other powers, have power to make an order for (a) removing any trustee (b) appointing a new trustee (c) declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust (d) providing a scheme of management of the trust property (e) directing how the funds of a public trust whose original object has failed, shall be spent, having due regard to the original intention of the author of the trust or the object for which the trust was created, and (f) issuing any directions as the nature of the case may require. As per Section 27(3) of the Act, any order passed by the court under sub section (2) shall be deemed to be a decree of such court and an appeal shall lie therefrom to the High Court. Undisputedly, as per Section 27(4) of the Act, 1951, no suit relating to a public trust under Section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any court on any matter in respect of which an application can be made under Section 26.
13. In case of Temple Achaleshwar (Supra), the suit was filed by Temple Shri Achaleshwar through its Pujari and another against the temple Shri Achaleshwar Public Trust through executive trustee and others inter-alia on the allegations that the defendants had mismanaged the temple and were usurping the chadhotari amount. They were also neglecting the aims and object of the Trust. The defendants were causing damages to the Trust, hence it had become necessary to remove the management immediately. On these allegations 11 reliefs were claimed against the defendant.
14. The Division Bench, in the above case, having found; the suit was filed under Section 92 of CPC; the suit had been filed by the Temple Achaleshwar through Pujari and not by the Pujari in his personal capacity for a declaration of his rights, the reliefs sought in the plaint shows that the relief are covered within the four corners of provisions of Section 26 of the Act, 1951, held that the suit is barred under Section 27 (4) of the Act, 1951.
15. According to ratio laid down by the Division Bench in the above referred case, “no suit can be filed with respect to a public trust under Section 92 of CPC on a matter with respect to which an application can be made under Section 26 of the Act, 1951, and Section 26 of the Act is wide enough to embrace all matters relating to a public trust”.
16. The Supreme Court in case of Swami Parmatmanand Saraswati (Supra) has held in para 10 & 11 of its judgment as under :
“10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N. Shanmukham Chetty v. V.M. Govinda Chetty1, Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga2, Sugra Bibi v. Hazi Kummu Mia3 and Mulla: Civil Procedure Code (13th edn.) Vol. 1, p. 400). 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 suits 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 religious 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.
11. We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Trust bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the Trust, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate-General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.”
17. On careful reading of provisions contained in Section 92 of CPC, Sections 26 & 27 of the Act, 1951, and the law laid down by the Supreme Court and Division Bench of MP High Court in the above referred cases, following proposition of law would emerge :
“In order to attract bar of Section 27 (4) of the Act, 1951, the trust must be public trust; suit must be filed under Section 92 of CPC on matter in respect of which an application can be made under Section 26 of the Act, 1951, and is filed as a representative of public for vindication of public rights.”
18. Now, coming to the facts of the present case, it is crystal clear that the relief claimed is to declare the resolution null and void by which the plaintiff was removed from trusteeship and applicant No. 3 to 5 have been inducted as its trustee. Thus, the suit was not brought by the plaintiff as representative of public for vindication of public rights and the same is filed seeking declaration of his individual/personal rights.
19. By applying the proposition of law as referred hereinabove in the facts and circumstances of the present case, it cannot be said that suit is barred under Section 27 (4) of the Act, 1951, and the trial court has rightly held suit as maintainable on this count.
20. However, on the face of plaint averments regarding valuation of the suit, the suit is triable by Civil Judge, Class II in terms of Section 6(a) of the MP Civil Court Act, 1958. Although, the court of District Judge is empowered to decide any suit or original proceeding without any restriction as regards its value. It simply means that the court of District Judge is competent even to entertain and decide any suit or proceeding, which a Civil Judge is competent to hear and decide but it will not do so simply because the law is that a suit or proceeding should be instituted in a court of lowest competent jurisdiction.
21. In view of above, the revision is allowed in part.
The District Judge, Raigarh, is directed to pass appropriate order to transfer the case in the court of Civil Judge, Class II, having jurisdiction to hear and decide the matter in accordance with distribution memo. However, in the facts and circumstances of the case, there shall be no order as to costs.
Judge Sahu As per Article 246 (2) of the Constitution of India, notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III of the Constitution in the Seventh Schedule. Entry 10 in list III of 7th Schedule relates to Trust and Trustees, therefore, so far as the Trust is concerned, the Parliament as well as legislature of any State both are competent to legislate any matters of Trust and Trustees.
22. Under Article 254 (2) of the Constitution, where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
23. After coming into the force of Act, 1951, Section 92 of CPC shall not apply to any religious Trust/Public Trust in the State of MP/CG in view of specific bar contained in Section 27(4) of the Act, 1951, as the Public Trust Act, being special Act, shall prevail over the provisions contained in Section 92 of CPC.
24. Further, in the above case, argument was advanced by the opposite party that as the rights of Pujari are involved in the suit and consequential relief injunction was sought which cannot be granted in proceedings under Section 26 of the Act, 1951, the Division Bench of MP High Court, rejecting the above contention, having found the suit had not been filed by the Pujari for a declaration of his rights, rather the suit had been filed by the Temple Achaleshwar through Pujari and not by the Pujari in his capacity for a declaration of his rights and the reliefs sought in the plaint shows that the relief are covered within the four corners of provisions of Section 26 of the Act, 1951.
