Temple Achleshwar and Others vs Temple Shri Achleshwar Public Trust and Others

Tej Shankar, J.

This Letters Patent appeal has been preferred against the order dated 13.8.1987 passed by the learned Single Judge in civil misc. appeal No. 103 of 1987 in which the learned Judge upheld the order dated 1.8.87 passed by the District Judge Gwalior whereby the plaint of the Appellants was rejected under Order 7 Rule 11 CPC and ad interim direction granted under Order 39 Rule 1 and 2 CPC was vacated.

The facts necessary for the disposal of this appeal shortly narrated are that the Plaintiff-Appellants filed a suit purporting to be u/s 92 CPC for a number of reliefs. It is significant to mention here that the suit was filed by the Temple Shri Achleshwar through Pujari Ramdhar and one Vinod Kumar Gupta against Temple Shri Achleshwar Public Trust through executive trustee and others. It was claimed that Plaintiff No. 1 had been assisting his Mama Harnarayan in Seva and Puja of the temple Achleshwar Maharaj from the time he attained the age of discretion and after his death he had been acting as Pujari and had been doing Sewa Puja right from the morning. He had also been doing Aarti, Pujan etc., while Plaintiffs No. 2 and 3 were dedicated devotee. There had been dispute as to whether the temple Achleshwar is private property or public property but Defendant No. 1, in reality wife of Hargovind Mishra. claiming as the wife of late Harnarayan along with others in order to usurp the money of the temple moved an application before the Registrar claiming to be hereself as executive trustee and other persons mentioned in trust-deed as holders of various offices. The trust-deed has been annexed with the plaint Ultimately, the trust was registered as Achleshwar Mahadev Mandir Gwalior. situated at Sanatandharm Mandir Road, Lashkar. The bye-laws were presented on 30.10.76 on which Plaintiffs raised objections as they were neither in the interest of public nor of the temple. Actually the executive trustee should have been Plaintiff No. 1 Pujari Ramadhar but the Defendants practising fraud on the Registrar Public Trusts, got Defendant No. 1 nominated as executive trustee and got a direction that 40% of the Sewa Puja will be for her personal use throughout her life and thereafter it will belong to her legal representatives though she never went for darshan in the temple. Details of the objections claimed by the Plaintiffs against the bye-laws have been mentioned in para 4 of the plaint. Out of the remaining 60% of the income 10% was to be spent on religious purposes, 30% for charity, 15% for special expenses and 5% for development of the temple and for construction of shops etc. Inspite of the creation of the trust the trustees, specially the executive trustee, violated the provisions of the M.P. Public Trusts Act and the violations have been narrated in para 5 and 6. The Defendant had mismanaged the temple and were usurping the chadhotari amount. They were also neglecting the aims and objects of the Trust. Defendant No. 1, therefore, disentitled herself to be an executive trustee as her acts were against the interest of the Trust. Defendants were causing damages to the Trust, hence it has become necessary to remove the management immediately. On these allegations as many as 11 reliefs were claimed against Defendants.

The Defendants contested the claim and raised preliminary objection that the suit was not maintainable u/s 27(4) of the M.P. Public Trusts Act. The Plaintiffs ought to have taken action u/s 26 of the said Act. The Plaintiffs, in any case, ought to have taken steps u/s 26 and consequently the suit was not maintainable. The other allegations have also been denied by the Defendants. We need not detail those allegations as they are not relevant for the disposal of this appeal. We may, however mention that the Plaintiffs also moved an application under Order 39 Rule 1 and 2 CPC and an order was passed in favour of the Plaintiffs. That application was also opposed.

The learned trial Court heard the learned Counsel for the parties on the application under Order 39 Rule 1 and 2 CPC as well as on preliminary objections and after considering the entire material and the law on the subject came to the conclusion that the suit was barred u/s 27(4) of the M.P. Public Trusts Act and hence the plaint was rejected under Order 7 Rule 11 CPC It was also held by the same order dated 1.8.87 that the question of confirmation of ad-interim direction did not arise. The Plaintiffs preferred an appeal against the same order which came to be registered as Misc. First Appeal No. 103/87. The Appellants were heard by the learned Single Judge and it was held that it had no merits. Consequently it was dismissed on 13.8.1987. Hence this appeal.

The learned Counsel for the Respondents raised preliminary objection that an L.P.A. docs not lie against an order passed in Misc. Appeal. He also contended that actually the Plaintiffs ought to have filed a regular appeal u/s 96 CPC as the plaint was rejected under Order 7 Rule 11 CPC and that order amounted to a decree. On merits also he contended that there is no force in this appeal inasmuch as the suit was clcarlybarred by the provisions of Section 27(4) of the M.P. Public Trusts Act. The learned trial Court as well as the learned Single Judge rightly held so.

The learned Counsel for the Appellants vehemently argued that actually an appeal was filed against the order of rejection of the plaint which was heard and disposed of by the learned Single Judge inspite of the fact that it was registered as Misc. Appeal. If an appeal is decided by the learned Single Judge an appeal is maintainable under clause 10 of the Letters Patent (Nagpur). On merits the learned Counsel argued that the Plaintiffs filed a suit u/s 92 CPC for number of reliefs which included relief of permanent injunction as well. The relief sought in the plaint could not be granted by the Registrar and as such it is wholly incorrect to contend that the suit was barred by the provisions of Section 27 of the M.P. Public Trusts Act. He argued that no relief could be granted by the Registrar with respect to the office of the Pujari as well as for permanent injunction and as such the suit was maintainable in regualr civil Court. In the alternative he contended that in any case when the learned trial Court found that the suit was not maintainable in view of the provisions of Section 27(4) of the M.P. Public Trusts Act he ought to have returned the plaint for presentation to proper Court under Order 7 Rule 10-A Code of Civil Procedure

We have considered the contentions of the learned Counsel for the parties. Before dealing with the merits of the case, we propose to deal with the preliminary objection. First of all we must mention that the order passed by the learned trial Court was a composite order disposing of the application under Order 39 Rule 1 and 2 CPC as well as the preliminary objection relating to the maintainability of the suit. Learned trial Court rejected the plaint holding that the suit was not maintainable in view of Section 27(4) of M.P. Public Trusts Act. It further observed that the question of confirmation of ex parte direction did not arise in view of the fact mat the suit was barred. A perusal of the memorandum of appeal presented by the Plaintiffs before this Court shows that it was presented as civil misc. appeal No. 103/87. Thus, technically it can safely be said that it was a Misc. Appeal which was disposed of by the learned Single Judge. In view of the Full Bench decision reported in 1995 JLJ 141 (Mahesh Chandra Choubey v. M.M. Dubey and Ors. it was held that against order of High Court in miscellanous appeal under Order 43 Rule 1 no Letters Patent Appeal against such order is maintainable before Division Bench. Thus, the contention of the learned Counsel for the Respondents that the appeal is not maintainable cannot be said without force. However, we may also observe that the learned trial Court passed a composite order whereby it rejected the plaint itself under Order 7 Rule 11 CPC and that order amounted to a decree. Hence, the appeal filed by the Plaintiffs can safely be taken to be an appeal u/s 96 CPC though it was registered as Misc. Appeal. In this connection it is pertinent to mention that the Plaintiffs had actually paid the requisite Court fee for an appeal and as such inspite of the fact that it was rejected as a Misc. Appeal, it has to be taken that it was a regular civil appeal. Once it is found that a regular appeal was filed against the order rejecting the plaint, it cannot be said that the L.P.A. is not maintainable. Thus, we are of the opinion that in reality as it was a regular civil appeal dough registered as Misc. Appeal the L.P.A. is maintainable. We, therefore, proceed to decide it on merits.

There is no dispute between the parties that a Public Trust named Achleshwar Mahadev Mandir Gwalior, Sanatandharm Mandir Road, Lashkar was registered under the provisions of the M.P. Public Trusts Act. In this connection reference may be made to the averments made in para 3 of the plaint and para 1 of special pleas of the written statement. If we peruse the provisions of the M.P. Public Trusts Act we find that it is the self contained statute. Section 26 of the Act makes a provision for an application to Court or directions It is important to mention the provisions of this section here. They are as follows:

Application to Court for direction:

(1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that ~

(a) the original object of the public trust has failed

(b) the trust property is not being properly managed or administered, or

(c) the direction of the Court is necessary for the administration of the public trust;

he may, after giving, the working trustee an opportunity to be heard, direct such trustee to apply to Court for direction within the time specified by the Registrar.

(2) If the trustee so directed fails to make an application as required or if there is no trustee of the public or if for any other reason, the registrar considers it expedient to do so, he shall himself make an application to the Court.

Thus, as application has to be presented to the Registrar by any person interested in the public trust if he is satisfied with respect of the facts mentioned in Clause (1). This section is very comprehensive. Of course, no specific relief as such has been mentioned in the section but it provides three circumstances in which an application has to be made by the person interested in the public trust to the Registrar. Clauses (a), (b) and(c) of the sections are wide enough to embrace within its fold nearly all the reliefs which can be sought with respect to a public trust. Under Clause (a) provision has been made to move the Registrar in a case where the original object of the public trust has failed, meaning thereby that any person interested in the public trust has to move an application before the Registrar if the object of the public trust has failed. Secondly, under Clause (b) the Registrar has to be moved if the trust property is not properly managed or administered. This is too comprehensive and covers every thing relating to the management and administration of the public trust. Lastly, provision has been made in Clause (C) with respect to any direction which the interested person may desire to seek from the Court for the adminstration of the public trust. Thus, it is crystal clear that the provisions of Section 26 are self sufficient and they embrace within its fold all matters relating to the public trust. It has to be kept in mind that the provisions operate only when there is validly constituted public trust under the Act and there must be a satisfaction of the Registrar as provided under this section. If we peruse Section 27 of the M.P. Public Trusts Act we find that it makes provision for Court''s power to hear the application. Before referring to this section it is necessary to revert back to the provisions of Section 26 where a provision has been made to the effect that the Registrar on being satisfied may direct the trustee to apply to Court for direction within the time specified by the Registrar as is evident from the provisions quoted above. After the receipt of the application the powers of the Court have been enumerated in Section 27 of the Act. Sub-section (3) of this section makes a provision that an order passed by the Court under Sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court. Sub-section (4) is very important. Under this clause finality has been given to the order and a bar has been provided with respect to a suit relating to a public trust u/s 92 of the CPC on any matter with respect of which an application can be made u/s 26. We have already said above, that Section 26 is wide enough to embrace all matters relating to a public trust. Thus, in the teeth of these two provisions no suit can be filed with respect to a public trust u/s 92 CPC on a matter with respect to which an application can be made u/s 26.

The contention of the learned Counsel for the Appellants is that in the present suit the rights of Pujari are involved and consequential relief of injunction was sought which cannot be granted in proceedings u/s 26. After giving our anxious consideration we arc of the opinion that the contention of the learned Counsel for the Appellants has no legs to stand. Firstly, it may be mentioned that the suit had not been filed by the Pujafi for a declaration of his rights. Actually the suit had been filed by the Temple Achleshwar through Pujari Ramadhar and not by the Pujari in his capacity as a Pujari for a declaration of his rights. A close scrutiny of the reliefs sought by the Plaintiff in para 11 shows that all the reliefs are covered within the four corners of provisions of Section 26. It is a fact the u/s 26 of the M.P. Public Trusts Act no specific provision with respect to relief of injunction is made but in the application u/s 26 a prayer for a direction of the Court which is necessary for administration of the public trust can certainly be said to include a relief in the nature of an injunction. Thus, the contention of the learned Counsel based upon these two reliefs cannot be accepted. We are of definite opinion that the Plaintiffs ought to have moved u/s 26 of the said Act instead of approaching the civil Court in a regular suit u/s 92 CPC as the suit was clearly barred by the provisions of Section 27(4). The learned trial Court as well as the learned Single Judge was, therefore, perfectly justified in holding so.

The next point that needs consideration is as to what should have been done by the learned trial Court when once it was found by the learned trial Court that the suit was not maintainable in view of the provisions of Section 27(4) of the Act. The learned trial Court has rejected the plaint under Order 7 Rule 11 CPC The contention of the learned Counsel for the Appellants is that the plaint should have been returned under Order 7 Rule 10-A and in not doing so the learned trial Court committed an error which was also not remedied by the learned Single Judge. We have considered this aspect as well First of all we make a reference of the provisions of Order 7 Rule 11 CPC which provides for rejection of plaints. Clause (b) of Order 7 Rule 11 CPC shows that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. We have already shown above that the suit was itself barred by the provisions of Section 27(4) of the M.P. Public Trusts Act and as such it cannot be argued that the plaint could not be rejected. The order passed by the learned trial Court rejecting the plaint under this provision was, therefore, perfectly justified.

Before parting with we, however, deem it necessary to deal with the argument of the learned Counsel for the Appellants relating to provisions of Order 7 Rule 10-A. In this connection it has to be kept in mind that rule 10-A was inserted in the CPC by amendment Act of 1976 and it follows rule 10 which makes a provision with respect to what has to be done by the Court which is of the opinion that the plaint should be returned. Consequently, it has to be found first as to whether the plaint has to be returned under Order 7 Rule 10 or not. In case it is found that the plaint is to be returned then this rule has to be applied On the other hand, if it is found that the plaint cannot be returned under Rule 10, this rule has no application. For an order under Order 7 Rule 10 for the return of the plaint it is necessary that the Court must find that the plaint has to be returned for presenting in Court in which it ought to have been instituted. In other words, the rule applies only where the Court is of the opinion that the suit should have been filed in another Court instead of the Court where it has been actually filed. A person cannot claim the benefit under this provision with respect to a matter which has been taken to a Court the jurisdiction of which has been specifically barred with respect to a matter involved by a special legislation. In the case in hand, as said earlier, the dispute mentioned in the plaint and covered Section 92 CPC should have been brought before the Registrar u/s 26 of the Public Trusts Act and the suit was specifically barred by Section 27(4) of the M.P. Public Trusts Act. We may also add that the plaint cannot be presented before the Registrar as it stands. There are certain rules framed under the M.P. Public Trusts Act called the M.P. Public Trusts Rules, 1962. The person interested has to move in the manner provided therein. A plaint cannot be presented to the Registrar as it stands. Consequently, it could not be returned. We may also point out that it has been held in Chothu Ram Vs. Budhu Ram and Another, that the rule applies only when there is a Court which has jurisdiction to try the suit. If no Court except statutory Tribunal has jurisdiction in the matter, the Court can dismiss the suit as this Code has no application In another decision of the Allahabad High Court reported in Ram Bali and Others Vs. Jaipal and Others, it has been ruled that a person cannot claim benefit under Order 7 Rule 10 who deliberately files suit in a Court which has no jurisdiction to try the suit. We respectfully agree with the views of the Punjab and Allahabad High Court and conclude that the provisions of Order 7 Rule 10 and 10-A CPC are not applicable to the present case.

In the result, we find no merits in the appeal and it is accordingly dismissed with costs.