T.A. Balakrishna Odayar and Another vs Chakravarthy V. Jagannada Chariar and Others

In this Civil Revision Petition defendants 1 and 2 in O.S. No. 27 of 1920 on the file of the Sub-Court of Kumbakonam call for the interference

of this Court in revision with certain findings of the Lower Court on certain issues in that suit. The suit has not yet been disposed of. Interference

with findings in a suit not yet disposed of is not a matter which the High Court will view with favour, and it will require a very strong proof of want

of jurisdiction or irregular exercise of jurisdiction to warrant interference. In this case the petitioners have before us restricted their case to three

issues, on which the Lower Court has given findings, Issues I, IV and V.

The suit is one u/s 92 of the CPC for the removal of certain trustees of the Kumbakonam Sri Sarangapaniswami Temple, defendants 1 and 2

and for other reliefs. It is filed by two plaintiffs with the sanction of the Advocate-General. The first plaintiff is himself a trustee of the temple and the

second is a member of the public interested in the trust. Issue IV relates to the prayer in the plaint for divesting the Devasthanam Committee of its

superintendence over the temple. The plaintiffs have also added as defendants the members of the Committee. Before the Lower Court the

plaintiffs did not press that prayer. The petitioners, who are defendants 1 and 2, wish us to interfere now because they are afraid that the Lower

Court may not separate this relief from the others prayed for, and thus prejudice their defence. They seem to apprehend that the Lower Court will

not be able to distinguish the reliefs which the plaintiffs have given up and those which they retain, or to restrict the evidence at the trial to those

reliefs which are still being sought for by the plaintiffs. But we really cannot hold that such a vague apprehension is any reason for interference in

revision.

Issue V is an issue on misjoinder. That is with reference to the members of the Devasthanam Committee being added as defendants. How this

misjoinder, supposing that it is a misjoinder, damnifies the petitioner, it is difficult to see. The Committee members themselves do not complain.

Had any necessary defendants been excluded, those excluded defendants might have had some grievance, but the addition of extra defendants

cannot hurt the present petitioners in any way. The three cases'' cited by the petitioners have no application. P.S.A.R.A.R. Arunachellam Chettiar

Vs. Arunachellam Chettiar minor by guardian Visalakshi Achi, and Sitaramayya v. Ramappayya (1916) 5 LW 207 were cited. In the former case

the plaintiff''s suit was liable to dismissal, unless it complied with the order sought to be revised. In the latter the plaintiff was forced to add parties

against his will. But, in the present case, neither the plaintiffs nor the added defendants have any objection. Shunmugha Nadari v. Arunachalam

Chetty ILR (1921) M 194 was also cited. It is a case where defendants, ordered by the Lower Court to be struck out of the records, were added

by order of this Court in revision. We cannot hold that these rulings are authorities for the proposition that the alleged misjoinder in this case is an

illegal or irregular exercise of jurisdiction.

We are then left with Issue 1, which contains the only point worth attention, since it refers to the actual maintainability of the suit, and, so far as

this suit is concerned, it is a pure question of law. If a suit is not maintainable at all, it might in some cases be advisable for this Court in revision to

interfere and thus to prevent further waste of time and money, the ground of interference being that a Court has no jurisdiction to proceed with a

suit which is not maintainable in law. From that point of view, we shall consider this issue. The contention is that the first plaintiff, being himself a

trustee, is not entitled to be one of the "" two persons having an interest in the trust, "" as required by Section 92 of the Civil Procedure Code. Now,

clearly a trustee is a person interested in the trust, and prima facie, therefore, there is nothing in the section to prevent his being one of the plaintiffs

or even to prevent both the plaintiffs being trustees. Petitioners contend that a trustee cannot be one of the plaintiffs in a suit u/s 92 because the

essence of such a suit is relief claimed by the general public against the management and conduct of the body of trustees as a whole, and that

therefore the whole body of trustees must be defendants. There is nothing in the section to justify such a narrow restriction of its scope. A suit may

be instituted to remove only one trustee and to have another appointed in his place. Here the relief sought for is not against the whole body of

trustees but against two trustees only. Such a narrow interpretation of the section will lead to the result that a body of trustees cannot by suit u/s 92

get rid of an obstructive or dishonest trustee who is ruining the institution, unless they persuade two public-spirited men to undertake the trouble

and expense of filing a suit.

The petitioners further point out that in this suit they are making counter-charges against the first plaintiff in his capacity as a trustee and asking

for his removal, and urge that, if he remains as a plaintiff, the Court cannot investigate and record findings on these counter-charges or remove the

first plaintiff, if the Court finds that it is advisable to do so. But we see no such difficulty, since the section itself gives the Court a very wide

discretion as to what it may or may not do in such a suit.

We have been able to discover one direct authority on this point of law in Subramania Pillai v. Krishnaswami Somayajiar (1919) MWN 522

where a Bench of this Court held that a suit by two trustees"" to remove a third trustee was a suit u/s 92 of the Civil Procedure Code. We agree

with this view. The real plaintiff, by whomsoever it may be represented, is the trust, and the representation may be either by the interested public or

by a trustee thereof and, so long as the plaintiffs, whether trustees or not, are vindicating a public and not an individual right, the suit is, one

maintainable u/s 92. In our view, the present plaint shows that the nature of the present suit is the vindication of a public right and this is also

indicated by the fact that one of the plaintiffs is a member of the general public. We hold therefore that the suit is maintainable and there is no case

for interference in revision. The Civil Revision Petition is, therefore, dismissed with costs of respondents 1 and 2.

As to C. M. A. No. 273 of 1922 the same petitioners appeal against the order of the Lower Court appointing a Receiver to the temple trust

property pending disposal of the suit mentioned above. We need not go into detail in this matter. It is clear from the statement of both parties that

there are internecine quarrels between the trustees, each charging the other with mismanagement and suppression of accounts, and the issues in the

case will entail an investigation of the charges against each. In these circumstances it is undesirable that either party should be left in exclusive

control of the accounts or in exclusive authority over the temple servants. We are not prepared to interfere with the discretion of the Lower Court,

which considers it just and convenient to appoint a Receiver in such circumstances. We therefore dismiss this appeal with two sets of costs, one for

respondents 1 and 2 and one for respondents who are members of the Devasthanam Committee.