Kushal Chand and Others vs Ishwar Chand and Others

Gopal Krishan Vyas, J.—Instant revision petition has been filed under Sec. 115, C.P.C. against the order dt. 02.04.2009 as well as order dt. 29.02.2012. According to facts of the case, the petitioner in this revision petition are trustees/managers of Kushalwadi Trust, Sojat City which was established on 29.04.1937 by one Raghunathmal Singhvi for the purpose of worshipping the Jain Shwetambar and Dada Guru of Jain community. Subsequently, in the year 1976, the Trust was got registered under the Rajasthan Public Trust Act, 1959 (in short, ''the Act of 1959'' hereinafter). The suit property is also situated in Sojat and there are various shops which were let out to different tenants out of which for some of the shops eviction proceedings were initiated and some of the cases have already been decided in favour of the Trust and some cases are pending in the Courts of law.

Learned counsel for the petitioners invited my attention towards the fact that there were 3 shops of the Trust let out to one Mishri Lal against whom the Trust initiated eviction proceedings. The trial Court allowed the cases and ordered eviction from the shops against which appeals filed by the tenant have also been dismissed.

In counter of eviction proceedings said Mishri Lal and his son Om Prakash filed various applications against the Trust as well as against the present trustees and manager. The present suit proceedings triggered by the respondents is also part of their counter with hand in gloves with Mishri Lal and others.

The present suit was filed in the year 2010 by respondents No. 1 and 2 along with and along with the suit an application under Sec. 92, C.P.C. was filed on the ground that the property of the Trust is being misused by the present trustees for their personal purpose and trustees are appointed from one family of trustee. It is also pointed out in the suit that properties of the Trust are not being managed properly and consequently the object of Trust is being failed, therefore, it is prayed by plaintiff-respondents that reappointment of the trustees may be ordered. Earlier also the plaintiff filed an application before the Assistant Devasthan Commissioner but no action was taken against the trustees.

The petitioners filed written-statement and denied all the allegations. It is specifically stated in the written-statement that the Trust comes under the purview of Devasthan Department and plaintiffs have already approached the authorities of Devasthan Department for proper management of the Trust, therefore, the present suit is not maintainable. It is also submitted in the written-statement that the Trust has been created only for persons who believe in Jain sect and exclusively Jain Shwetambar sect but the plaintiffs have not specifically pleaded their interest nor they are members or any beneficiary and ground has been raised with regard to mismanagement of the Trust. The plaintiffs filed rejoinder to the reply wherein objection raised by the petitioner-defendants was not specifically replied.

After completion of the pleadings, certain applications were moved by the respondents before the trial Court and, amongst others, one application under Order 1 Rule 8, C.P.C. for publication of fact with regard to institution of the suit against the Trust on the count that any person having interest in the Trust may be impleaded as party in the suit proceedings. Said application was allowed with cost of Rs. 2,000/- because the application was filed at belated stage.

The plaintiff-respondents filed the present suit under Sec. 92, C.P.C. for which mandatory requirement is to seek leave of the Court for institution of the suit, therefore, application dt. 10.06.2010 was filed by the respondents seeking permission to institute the suit against the petitioners.

The petitioners filed reply to the application but the trial Court allowed the said application vide order dt. 02.04.2012 and granted permission to institute/continue the suit proceedings on the count that the plaintiffs have stated in the plaint that Trust was established for Hindu/Jain community whereas the stand of petitioners is that the Trust was settled for certain classes of persons who believe in Jainism and that issue can be decided after recording evidence. The trial Court further observed that application of the plaintiffs filed under Order 1 Rule 8, C.P.C. has already been allowed vide order dt. 29.02.2012.

Learned counsel for the petitioner-defendants is challenging orders dt. 02.04.2012 and 29.02.2012 whereby permission has been granted by the trial Court under Sec. 92, C.P.C. to the respondent-plaintiffs to institute the suit against the Trust. Learned counsel for the petitioners vehemently argued that the respondent-plaintiffs are not even members of the Trust, therefore, while passing aforesaid orders the trial Court has completely ignored the above important aspects of the matter. The grievance of mismanagement of the Trust can be raised by the members of the Trust but, here, in this case, the respondent-plaintiffs are raising ground that they are beneficiaries of the Trust and for such relief a suit under Sec. 44 of the Act of 1959 is specifically barred. Coupled with specific bar to a suit and proceedings under Sec. 92/ 73, C.P.C., a civil suit is barred in respect of matters specifically provided for to be decided under the Act.

Learned counsel for the petitioners submits that the plaintiff-respondents have filed an application before the Assistant Devasthan Commissioner for the same relief and without pressing the same they have filed the present suit under Sec. 92 invoking civil Court''s jurisdiction which is specifically barred under Sec. 73 of the Act of 1959, therefore, the orders impugned deserves to be quashed.

Per contra, learned counsel appearing for the respondents submits that they are beneficiaries of the Trust and, therefore, the suit is maintainable and trial Court granted permission under Sec. 92 of the Act of 1959, therefore, no illegality is committed by the trial Court while passing the orders impugned.

After hearing learned counsel for the parties, I have perused both the orders impugned as well as prayer made in the suit.

Upon perusal it is revealed that respondent-plaintiffs are raising their private grievance against the Trust knowing it well that they are not members of the Trust. Therefore, if the suit is projected as if the suit was filed for vindicating public rights the emphasis was on certain purely private and personal disputes.

In the case of Vidyodaya Trust Vs. Mohan Prasad R. and Others, the Hon''ble Supreme Court made the following adjudication: 19. In Swamy Parmatmanand''s case (supra) it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But if after evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the Section, then suit purporting to be brought under Sec. 92 must be dismissed.

On a close reading of the plaint averments, it is clear that though the colour of legitimacy was sought to be given by projecting as if the suit was for vindicating public rights the emphasis was on certain purely private and personal disputes.

To put it differently, it is not every suit claiming reliefs specified in Section 92 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. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Sec. 92 by persons whose activities were not for protection of the interests of the public trusts. In that view of the matter the High Court was certainly wrong in holding that the grant of leave was legal and proper. The impugned order of the High Court is set aside. The appeal is allowed but without any order as to costs.

In my opinion, in view of the above judgment, the permission granted by the trial Court under Sec. 92, C.P.C. to institute the suit against the Trust is totally erroneous. The remedy available is before the Devasthan Department which is proper remedy. Therefore, this revision petition is allowed and both the orders impugned dt. 02.04.2009 and 29.02.2012 are hereby quashed and set aside.