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Judgment
Dr. Vineet Kothari, J.—The present appellants-plaintiffs including appellant No. 6, namely, Dayanand S/o. Jagdish Brahmin, has filed the present misc. appeal aggrieved by the order dated 16.05.2013 passed in Civil Misc. Case No. 22/2013 by the learned District Judge, Churu rejecting the application filed by the present appellants-plaintiffs under Section 92 of the Code of Civil Procedure seeking leave of the Court to present the suit in representative capacity in respect of the trust property situated at Churu known as "Murti Gauri Shanker Ji" of which the respondent-defendant No. 1 Chimna Ram Mantri Charity Trust is the Trust and claims that the said temple was constructed by the said trust which is duly registered under the Rajasthan Public Trust Act, 1959.
The learned Trial Court, while rejecting the application of the appellants filed under Section 92 of the Code of Civil Procedure and refusing the leave to maintain the said representative suit, has held as under:--
The learned counsels Mr. B.S. Sandhu with Mr. Ripudaman Singh appearing for the appellants-plaintiffs submitted that the requisite elements for granting the leave under Section 92 of the Code of Civil Procedure have not been examined by the learned Trial Court and merely on the ground that the present representative suit filed by the plaintiffs includes the son of the previous judgment-debtor in the previous litigation, the application under Section 92 of the Code of Civil Procedure could not be rejected, as the applicant has asked for the relief as enumerated in Section 92 of the Code of Civil Procedure.
On the other hand, the learned counsels Mr. Sanjeev Johari with Mr. Preetesh Mandover appearing for the respondents-Trust and its Trustees has vehemently submitted that the present suit in the representative capacity, as filed by the plaintiffs, is a gross abuse of the process of the Court, as in the previous litigation, in multiple rounds, the judgment-debtor Jagdish, father of the appellant No. 6-Dayanand, has already lost in the suit for eviction/possession up to the High Court and Civil Suit No. 12/1993 "Chimna Ram Mantri through Trustee and Ors v. Jagdish Prasad, Parmeshwari Devi and Ors" having been decreed on 02.08.1993 and the Second Appeal No. 169/2000 having been dismissed by this Court on 02.03.2006 and even the objections filed by the appellant No. 6 Dayanand in Writ Petition No. 872/2012 having been dismissed by this Court on 01.02.2012 and again the objections filed in Execution Application No. 17/2005 having been dismissed on 03.02.2006; and in the chain of litigation, the defendants have lost and when the decree for dispossessing them from the suit property is at its final verge, the son of the defendant - Jagdish namely, Dayanand, the appellant No. 6, along with others have initially filed the application under Section 92 of the Code of Civil Procedure seeking leave of the Court to maintain the present suit against the trust and trustees or the State Government through its Devasthan Department purportedly for proper management of the Trust property, which has rightly been dismissed by the learned Trial Court by the impugned order dated 16.05.2013 finding locus of the appellants-applicants highly questionable and of doubtful integrity.
Having heard the learned counsels for the parties and upon perusal of the material available on the record, this Court is satisfied that the present application filed by the appellants under Section 92 of the Code of Civil Procedure was not at all fair but a sham effort of the plaintiffs, which undoubtedly and admittedly initiated by the appellant-plaintiff No. 6- Dayanand, who is the son of the judgment-debtor/objector Mr. Jagdish in the previous litigation and who has lost his legal battle up to this Court, the effort is nothing but an abuse of the process of the Court. The learned Court below has rightly dismissed the application under Section 92 of the Code of Civil Procedure. The process of law cannot be allowed to be abused by multiple litigations for the same cause giving them different and false faces and covers. In this application, that too, by invoking the pious provisions of Section 92 of the Code of Civil Procedure, 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 leave of the Court, may institute a suit, to obtain a decree mentioned vide clauses (a) to (h) in Section 92 of the CPC but the present application filed by the applicants-appellants is nothing but an effort of the same family to stall or somehow nullify the legal process of law to avoid their eviction and dispossession from the Trust property and, as noticed, the present litigation initiated or contested by the Trust in question is being contested form the year 1993; and more than 20 years have passed by in the said litigation but still the Trust in question has not been able to get the fruits of the decree passed in the year 1993 against the present applicants. The present so-called representative suit is sought to instituted by taking the shelter of Section 92 of the Code of Civil Procedure seeking first the leave of the Court to institute the suit and in the opinion of this Court, the application has rightly been rejected by the learned Trial Court by treating it to be an effort of the appellants to abuse the process of the Court.
This Court is also of the opinion that the present appeal filed by the appellants-plaintiffs is only a further effort of the plaintiffs to seek somehow the footage in the said litigation, which cannot be permitted and, therefore, the appeal is liable to be dismissed with costs because the appellants have abused the process of law by seeking the permission of the Trial Court to institute a suit against the Trust to avoid the eviction proceedings which had been taken against them 20 years ago.
The Hon''ble Supreme Court in the case of Vidyodaya Trust Vs. Mohan Prasad R. and Others, AIR 2008 SC 1633 : (2008) 2 CLT 44 : (2008) 2 CLT 315 : (2008) 3 CTC 868 : (2008) 3 JT 119 : (2008) 3 SCALE 273 : (2008) 4 SCC 115 : (2008) AIRSCW 1817 : (2008) 2 Supreme 264 also held that under the garb of Section 92 of the Code of Civil Procedure seeking leave of the Court to institute a suit against the public Trust, no suit for vindication of individual or personal interest of some persons can be allowed to be instituted. The relevant extract of the judgment of the Hon''ble Supreme Court in the aforesaid case of Vidyodaya Trust (supra) is quoted herein below for ready reference:--
"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 vindication of individual or personal rights of some persons an action under this provision does not lie. If in a given case notice has not been given and leave has been granted, it is open to the Court to deal with an application for revocation and pass necessary orders.
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.
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 possibility of a suit being laid against public trusts under Section 92 by person whose activities were not for protection of interest 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."
This Court also in the case of Kushal Chand and Ors. v. Ishwar Chand and Ors. [S.B. Civil Revision Petition No. 58/2012, decided on 03.09.2012], while dealing with a case of Kushalwadi Trust, Sojat City, allowed the revision petition filed on behalf of the Trust and set aside the impugned orders dated 02.04.2009 and 29.02.2012, by which orders, the learned Trial Court had allowed the respondents to institute a suit against the Trust. The relevant extract of the order dated 03.09.2012 is quoted herein below for ready reference:--
"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, AIR 2008 SC 1633 : (2008) 2 CLT 44 : (2008) 2 CLT 315 : (2008) 3 CTC 868 : (2008) 3 JT 119 : (2008) 3 SCALE 273 : (2008) 4 SCC 115 : (2008) AIRSCW 1817 : (2008) 2 Supreme 264 , the Hon''ble Supreme Court made the following adjudication : (already quoted).
In my opinion, in view of the above judgment, the permission granted by the trial Court under Section 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 dated 02.04.2009 and 29.02.2012 are hereby quashed and set aside."
Accordingly and in view of the above, the instant Misc. Appeal filed by the appellants-plaintiffs-Murti Shri Gauri Shanker Ji and Ors. including Dayanand S/o. Jagdish is dismissed with costs quantified at Rs. 10,000/- [Rupees Ten Thousand only] which will be paid to the defendant Trust within three months. A copy of this order be sent to the learned Trial Court and to both the parties concerned forthwith.