Mahesh Tulswan vs Rajendra Kumar Banka

Kalyan Jyoti Sengupta, J.—The above application has been taken out by the 1st, 2nd and 3rd Defendants for rejection and/or taking the plaint off the file and/or dismissal of the suit as being not maintainable or barred by law for not disclosing any cause of action. Alternatively and/or in any event the name of the Plaintiff No. 1 be deleted and/or expunged and/or struck off from the records and the suit at the instance of the Plaintiff No. 1 be dismissed and/or be rejected. Leave, if any, to file the suit u/s 92 of the CPC be revoked and/or cancelled and the suit also be dismissed on that ground and/or the plaint be taken off the file or be rejected. This application is opposed by the Defendants by filing affidavit. However, it is well settled that a demurer action is always examined reading the plaint and plaint alone, and No. affidavit for this purpose is required.

Mr. Das learned Senior Counsel while supporting this application submits that on reading the plaint as a whole together with the prayer portion it will appear the suit is not really intended to get relief as required u/s 92 of the CPC (hereinafter Code) as the suit is filed basically for vindication of individual right with little element of public grievance. It is settled that unless the suit is filed to obtain relief for the redressal of the public grievance, in other words if it is not representative character the same cannot be viewed u/s 92 of the Code. The suit u/s 92 of the Code is legally accepted as a representative character so leave of the Court under Order 1 Rule 8 is also required to be obtained. If the suit is not within the purview of Section 92 leave obtained there under, is unnecessary. Hence leave granted under the provision of the said section of this Code shall be revoked, the suit should not be allowed to be proceeded with as it would be a case as if there is No. disclosure of cause of action as such. In support of his contention he has relied on the following decisions:

Vidyodaya Trust Vs. Mohan Prasad R. and Others, , Sugra Bibi Vs. Hazi Kummu Mia, , Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, , Chairman Madappa Vs. M.N. Mahanthadevaru and Others, Indu Bhusan Sen and Another Vs. Kiron Chandra Sen and Others, , Rup Diamonds and Others Vs. Union of India and Others,

Mr. Jishnu Saha learned Advocate appearing for the Plaintiff while opposing this application submits that the leave granted u/s 92 should not be revoked as there is No. ground made out in the application for such relief nor any ground could be found for rejecting the plaint. He contends that granting relief u/s 92 is an administrative nature and tacit permission satisfies the requirement of filing of the suit under above provision. In this context he seeks reliance on a judgment of Punjab and Haryana High Court reported in AIR 1982 P & H 137.

He submits that No. notice is required to be given before granting any leave and non-service of notice cannot be ground for rejecting the plaint. He has relied on a Supreme Court decision reported in Vinayaka Dev Idagunji and Others Vs. Shivaram and Others, in this regard.

He has drawn my attention to the relevant portion of the plaint namely the paragraphs 7 and 8 in support of his contention that the suit is clearly within the purview of Section 92 of the CPC it will also appear from statement made in paragraphs 25, 26 and 27 that the allegations of mismanagement and misappropriation of the religious charitable trust''s property are made out. He submits that the plaint has to be read as a whole in order to understand the scope there of.

I have carefully considered the contention of the learned Counsel for the parties. I think Mr. Saha is right in his submission that while considering this application the plaint alone has to be read. On careful reading of the pliant it appears to me the cause of actions are two folds; one of them is that despite becoming a principal trustee, in view of being male member in terms of the deed of trust the Defendants and each of them are denying his status. This grievance can be deduced from paragraphs 18, 19 of the plaint. Another is that Defendant Nos. 1 and 2 have not only refused to acknowledge the first Plaintiff as the principal trustee, but in contravention of the provisions of said trust deed the Defendant No. 1 proceeded to declare himself as principal trustee and Defendant No. 2 also purported to declare himself trustee. It is the contention of the Plaintiff that as per the provisions of 1928 trust deed only eldest male member of the family is entitled to become the principal trustee of the said fund and/or trust as such the question of Defendant No. 1 becoming the principal trustee of the said trust or fund could and did not and does not and cannot arise. Consequently the question of either the Defendant No. 1 or the Defendant Nos. 1 and 2 appointing the Defendant No. 3 as the trustee of the said fund and /or trust could and did not and does not and cannot arise.

The purported appointment of the Defendant No. 3 as trustee by the Defendant Nos. 1 and 2 is also void and is of No. effect. Thus it is clear from the aforesaid controversy the Defendant No. 3 has not been accepted as a trustee and his appointment is questioned by the Plaintiff No. 1 who is seeking to establish himself as principal trustee.

On careful perusal and reading of the said contention, it clearly discloses cause of action for vindicating individual right namely to establish himself to be the principal trustee on one hand and on the other hand he refuses to accept the Defendant No. 3 as being legally appointed trustee. The other portion of the plaint features allegations of misappropriation of the trust fund mal-administration and mismanagement and improper maintenance of the assets and property of the trust. It is also alleged that the other Plaintiffs namely 2 and 3 are not the trustees rather member of the public who are beneficiary of the said trust estate. As such they are interested to file the suit.

In the context of the aforesaid summarized portion of the plaint the following relief''s are claimed:

(a) Declaration that the Plaintiff No. 1 is the principal trustee of the Rai Soorajmull Jhunjhunwala Bahadur''s Charitable Fund/Trust;

(b) Declaration that the Defendant Nos. 1 and 2 have with their resignation ceased to be trustees of the said Fund/Trust;

(c) Alternatively, a decree directing the removal of the Defendant Nos. 1 and 2 as the trustees of the said Fund/Trust;

(d) Declaration that the purported appointment of the Defendant No. 1 as principal trustee and of the Defendant No. 3 as trustee of the said Fund/ Trust is void and of No. effect whatsoever;

(e) Decree directing the Defendant Nos. 1 and 2 to furnish detailed and full particulars and accounts of all their dealings and transactions with the funds, assets and properties of the said Fund/Trust since the death of Jagdish Prasad Tulshan on 20th January, 2000 and a decree directing enquiry into the same;

(f) Decree directing the Defendant Nos. 1 and 2 to pay to the said Fund/ Trust all monies that may be found to be due and payable by them upon accounts being stated and upon enquiry being made into the same;

(g) Declaration that the Defendant No. 4 can have and has No. right whatsoever to trusteeship of the said Fund/Trust and could not have and has not become either a trustee or the principal trustee of the said Fund/ Trust;

(h) Receiver;

(i) Injunction;

(j) Attachment;

(k) Costs;

(I) Further and other relief''s.

In view of above analysis I am unable to accept the contention of Mr. Saha that this suit is brought u/s 92 of Code in its entirety. Principal relief''s viz. prayers (a), (b) and (d) of the plaint are clearly intended to establish individual right and to resist individual rival claim in relation to the cause of action summarized as above. In a considerably old decision of this Court in case of Indu Bhusan Sen and Another Vs. Kiron Chandra Sen and Others, as rightly argued by Mr. Das at page 377 legal proposition is explained amongst other as follows:

Section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general, public in order to secure the proper administration of a public trust: 45, Mad 113, 33 Cal 789. It seems to me basing on these authorities it can be concluded that a suit brought by trustees on their own behalf and in the discharge of their own functions as trustees, not being a representative suit, is outside the scope of Section 92.

The Supreme Court in case of Vidyodaya Trust Vs. Mohan Prasad R. and Others, , in paragraph 18 observed following its earlier decision reported in Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, :

In the suit against public trusts, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons an action under the provision does not lie. As noted in Swami Parmatmanand''s case (supra) a suit u/s 92, CPC is a suit of special nature, while pre-supposes the existence of a public trust of religious or charitable character. When the Plaintiffs do not sue to vindicate the right of the public but seek 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, Section 92 has No. application.

Another decision of the Supreme Court reported in Workmen of The Bharat Petroleum Corporation Ltd. (Refining Division) Bombay Vs. Bharat Petroleum Corporation Ltd. and Another, , it has been ruled that "a suit u/s 9 of the Code is a suit of special nature for the protection of public rights in the public trust and charities. The suit is fundamentally on behalf of the entire body or persons who are interested in the Trust. It is for the vindication of public rights. A suit whether u/s 9 of the CPC or under Order 1 Rule 8 of the CPC is represented by large number of persons but for common interest".

It is appropriate to note the decision rendered by the Supreme Court in Parmatmanand Saraswati''s case reported in AIR 1974 SC 214, which was later followed by the same Court as stated above explained that Section 92 is not intended for vindication of private right.

In view of the aforesaid pronouncement of the highest judicial authorities and other judicial pronouncement it is difficult to accept the contention of Mr. Saha that the relief''s claimed and the cause of action disclosed in the pliant are substantially within the purview of Section 92 of the Code of Civil Procedure. As rightly urged by Mr. Das on plain reading of the plaint it cannot be held to be an action wholly or substantially u/s 92, logically, therefore, the plaint does not disclose cause of action for maintaining suit u/s 92 of Code of Civil Procedure.

It shall not be understood that entire plaint does not contain allegation as required u/s 92 of the Code, but No. relief under the said section is asked with reasonable degree of seriousness against any of the Defendants qua trustees, It is true the relief for furnishing accounts which comes within the purview of Section 92 Sub-section (2) of Clause (d) of the CPC has been asked for against first and second Defendants. But the suit is brought in such a manner and the cause of action has been pleaded in such complex mixing that it is difficult to segregate the allegation contained in the plaint for separate trial for the other relief''s which do not come within the purview of Section 92.

On consideration of the facts and circumstances of this case in totality I am of the view that the present suit which is filed for obtaining relief u/s 92 of the CPC cannot be maintained. Leave obtained from this Hon''ble Court is an inappropriate action. Hence leave granted by this Court is revoked.

I am of the view that the suit is also bad for misjoinder of causes of action which cannot be splitted for a proper trial by reason of the fact that the same are adversely inconsistent and contradictory. As it is already held that if the suit is not essentially within the purview of Section 92 of the CPC there is No. disclosure of cause of action. Hence the suit is barred under Order 7 Rule 11 of the Code of Civil Procedure.

In view of the aforesaid discussion the application succeeds and the plaint is rejected on the ground of non-disclosure of cause of action as well as the misjoinder of cause of action as a whole. However there will be No. order as to costs. Accordingly related interlocutory application stand dismissed. Interim order stands vacated. However this order will not prevent and prejudice the Plaintiffs or any of them from bringing appropriate action with same cause of action.