Public Trust Shri Geeta Satsang Bhawan Vs Nand Lal & Ors.

IN Civil Appeal No. 3034 of 2008

1) Signature Not Verified This appeal is filed by the Plaintiff against the final

judgment and orders dated 19.09.2006 passed by the

High Court of Judicature for Rajasthan at Jodhpur in

S.B. Civil Second Appeal No. 295 of 2006 and S.B. Civil

Second Appeal No. 296 of 2006 whereby the High Court,

by separate judgments, dismissed the appeals filed by the

plaintiff against the judgment dated 30.11.2005 of the

Additional District Judge(Fast Track) No.2, Pali (Raj.) in

Civil Appeal Decree Nos.3 and 4 of 2005 whereby the

appeals of the respondents (defendants) were allowed and

the judgment and decree dated 27.10.2004 passed by the

Civil Judge (Senior Division), Pali in the Civil Suit No.

4/2004 and Civil Suit No. 5/2004 were set aside.

2) We herein set out the facts, in brief, to appreciate

the issues involved in this appeal.

3) The appellant is a public Trust of which Shri

Ramanand is the Chairman. The Trust was formed by

executing a Trust deed on 31.07.1980. The land

measuring 1 Bigha 5 Biswas situated at Pali was allotted

by the Government on 14.05.1982 in the name of Shri

Rama Nand and the patta was accordingly granted to

him. He then constructed shops on this land.

4) On 01.10.1985, the Shop No.7 was let out to Nand

Lal-respondent No.1 on rent on an oral agreement at a

monthly rent of Rs.500/- which was enhanced at

Rs.625/- per month on 01.10.1996 with the consent of

both parties.

5) On 01.10.1989, the Shop No.11 was let out to

Nand Lal, Jitendar Rai Mathur and M/s Mayur Auto

Repairs on rent on the basis of an oral agreement at a

monthly rent of Rs.600/-, which was enhanced to

Rs.750/- per month on 01.10.1996 with the consent of

the parties. After the enhancement of rent, the

respondents stopped paying the rent to the

appellant-Trust. However, respondent No.1 paid rent

only in respect of Shop No. 7 up to 30.06.1998.

6) On 17.10.1998, the appellant, therefore, sent a

notice under Section 106 of the Transfer of Property Act,

1882 to the respondents in respect of Shop No.11

through registered post and terminated the tenancy. By

virtue of notice, the respondents were informed that their

tenancy would terminate w.e.f. midnight of 30.11.1998.

Similarly, on 22.10.1998, the appellant sent a notice

under Section 106 of the T.P. Act to respondent No.1 in

respect of Shop No.7 through registered post and

terminated the tenancy w.e.f. midnight of 30.11.1998.

Respondent No.1 did not reply to this notice also.

7) Subsequently, on 23.10.1998, the respondents gave

a cheque to the appellant against the rent in respect of

Shop No.11 up to the month of November and damages

on account of use and occupation for the month of

December, 1998 and respondent No.1 gave a cheque in

respect of Shop No.7 against the rent up to the month of

November and damages on account of use and

occupation for the month of December, 1998. However,

the respondents did not hand over the possession of both

the shops.

8) On 20.01.1999, the appellant instituted a suit for

eviction and recovery of rent being Civil Suit No. 15/99

(re-numbered as 5/2004) against Nand Lal, Jitendar Rai

Mathur and M/s Mayur Auto Repairs in respect of Shop

No.11 and Civil Suit No.14/99 (re-numbered as 4/2004)

against Nand Lal in respect of Shop No.7 before the

Additional Civil Judge(Senior Division), Pali.

9) The Trial Court, after framing the issues in both the

suits, by separate judgments on 27.10.2004, answered

the issues in favour of the appellant and accordingly

decreed the appellant''s suit and ordered the respondents''

eviction from the suit premises within a period of two

months and pay the damages for use and occupation

w.e.f. 20.11.1998 till the date of handing over the

possession of the suit premises (i) at the rate of Rs.750/-

per month in Civil Suit No.5/2004 and (ii) at the rate of

Rs.625/- per month in Civil Suit No.4/2004.

10) Aggrieved by the said judgment, the respondents

filed separate first appeals being Civil Appeal Decree

No.3/2005 and Civil Appeal Decree No.4/2005 before the

Additional District Judge (Fast Track) No.2, Pali.

11) The Appellate Court framed additional issues in

place of issue Nos. 1 and 1(a) framed by the Trial Court,

which read as under:

"(1) Whether the plaintiff-trust is exempted from the Rent Act according to the Advertisement No.P-4(11)V.V. and 3/96 dated 04.07.98 published at Page No.51 in the Rajasthan government Gazette Edition dated 06.07.1998?

(2) Whether having terminated the tenancy by issuing notice under Section 106 of the Transfer of Property Act, plaintiff is entitled to get the possession?

(3) Whether the plaintiff is a registered Trust, if yes, then its effect?

(4) Whether all the Trustees are necessary parties to the suit?

(5) Whether the notice has been waived on account of accepting the rent after terminating the tenancy through notice?"

12) By separate judgments on dated 30.11.2005, the

Appellate Court decided issue Nos. 3 and 4, as extracted

above, against the appellant and accordingly allowed the

respondents'' appeals and set aside the judgments and

decree dated 27.10.2004 passed by the Trial Court in

Civil Suit Nos. 4/2004 and 5/2004. It was held that

since the plaintiff-Trust was not registered under the

Rajasthan Public Trust Act, 1959(hereinafter referred to

as "the Act"), the suit itself was not competent for want

of registration in the light of bar contained in Section 29

of the Act. The Appellate Court, therefore, did not go into

the merits of the case and dismissed the suit.

13) Aggrieved by the said judgments, the appellant

preferred S.B.Civil Second Appeal Nos.295/2006 and

296/2006 before the High Court.

14) The High Court, by the impugned judgments,

dismissed the appeals in limine.

15) Against both the judgments, this appeal by special

leave is filed by the plaintiff-Trust before this Court.

16) Heard Mr. M.R. Calla, learned senior counsel for the

appellant-Trust and Mr. Puneet Jain, learned counsel for

the respondents.

17) During the pendency of this appeal, the appellant

(plaintiff) filed I.A. No 5 of 2013 and sought permission to

file additional documents in support of their case. The

appellant along with IA filed one Registration Certificate

issued on 07.02.2013 by the office of the Assistant

Commissioner, Department of Endowments, Jodhpur,

Government of Rajasthan(Annexure A-3) certifying

therein that the appellant(plaintiff)-Trust is registered

under the Act w.e.f. 07.02.2013. A prayer was,

therefore, made to take this document on record being

relevant one for deciding the appeal. This I.A. was

allowed by this Court''s order dated 20.01.2014.

18) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are inclined

to allow the appeal in part and while setting aside the

impugned order and also of the first Appellate Court and

the Trial Court restore the civil suit to its file for deciding

the civil suit afresh on merits in accordance with law.

19) It is an admitted fact that the appellant/plaintiff -

Trust was not a registered public Trust under the Act on

the date of filing the civil suit. It is also an admitted fact

that the appellant-plaintiff, therefore, got the Trust

registered as required under the Act only on 07.02.2013

during the pendency of this appeal.

20) Section 29 of the Act, which applies to this case,

reads as under:

" Section 29 . Bar against suits by un-registered trust-(1) No suit to enforce a right on behalf of a public trust which is  required to be registered under this Act but has not been so registered shall be heard or decided in any Court.

(2) The provisions of Sub-section(1) shall apply to claim of set off or other proceeding to enforce a right on behalf of such public trust."

21) Section 29 creates a bar "for hearing and deciding a

suit" filed by the public Trust for enforcement of any of

their rights, if the said Trust is not registered under the

Act. The bar, therefore, applies for "hearing and deciding"

a suit and not in filing the suit. In other words, suit can

be filed by the unregistered Trust but such suit will

neither be heard nor decided by the Court unless and

until the Trust is registered under the Act. Section 29 is,

therefore, operates as stay of proceedings in the suit so

long as the Trust does not get itself registered under the

Act.

22) A fortorari, the moment the Trust is registered under

the Act, the Trial Court would assume the jurisdiction to

hear and decide the suit on merits. The bar created

under Section 29 of the Act for "hearing and deciding" the

suit is then lifted and ceases to apply to the proceedings

in the suit.

23) As mentioned supra, since the appellant (plaintiff) -

Trust was registered under the Act on 07.02.2013, they

acquired a right to prosecute the suit on merits against

the respondents. The bar created under Section 29 then

would no longer operate to the proceedings in the suit.

24) In our opinion, the Trial Court was, therefore,

wholly unjustified in proceeding to hear and decide the

suit on merits by passing a judgment/decree. It failed to

see the rigor of Section 29 which had taken away the

jurisdiction of the Trial Court in hearing and deciding the

suit.

25) Similarly, the first Appellate Court and the High

Court also erred in straightaway dismissing the

appellant''s suit. Having held and indeed rightly that the

Trust was unregistered, instead of deciding the appeal

and dismissing the suit should have stayed the

proceedings by granting some reasonable time to the

appellant/plaintiff-Trust to get their Trust registered

under the Act. If despite granting time, the Trust had

failed to obtain the Registration Certificate then in such

eventuality, the first Appellate Court could have

dismissed the suit.

26) Be that as it may, now that the appellant/plaintiff

has obtained the necessary registration certificate in

relation to their Trust under the Act, which is also taken

on record, their suit can now be heard and decided on

merits by the Trial Court. The bar operating under

Section 29 of the Act for hearing and deciding the suit

would no longer apply to the suit and the Civil Court

would now assume jurisdiction to try the suit on merits.

27) Learned counsel for the appellant (plaintiff),

however, submitted that the matter be remanded to the

first Appellate Court to decide the appeal filed by the

respondent on merits because the Trial Court has already

decided the suit on merits in their favour. The

submission is devoid of any merit for more than one

reason.

28) First, the decree passed by the Trial Court was on

the face of it without jurisdiction having been passed in

contravention of Section 29 of the Act; second, the Civil

Court had no power to hear and decide the suit by virtue

of the bar created under section 29 of the Act; and third,

admittedly the Trust was not registered on the date of

filing of the suit and remained un-registered till the

judgment was delivered by the Trial Court. It is for these

reasons, the decree passed by the Trial Court is without

jurisdiction and has to be set aside.

29) In view of foregoing discussion, the appeal is

allowed in part, impugned judgments as also the

judgment/decrees of the Trial Court are set aside. The

matter is remanded to the Trial Court for hearing and

deciding the suits on merits in accordance with law.

Parties are granted liberty to amend their pleadings and

also file additional documents including the certificate of

registration of the Trust to enable the Trial Court to

decide the suits as directed. The Trial Court shall decide

the suits within six months uninfluenced by any of our

observations on merits because we have not expressed

our opinion on any of the issues touching the merits of

the controversy. Parties to appear before the Trial Court

on 21.08.2017 to enable the Trial Court to proceed with

the trial.

30) The Registry is directed to send back the original

record of the case to the Trial Court forthwith, if it is

requisitioned, and also send one copy of this order to the

Trial Court for information and record.

In S.L.P.(c) Nos. 10949, 11138 and 14325 of 2008

Leave granted.

In view of the judgment passed in Civil Appeal No.

3034 of 2008, these appeals are allowed in part on the

same terms.