The five plaintiffs filed a suit in C.S.No.1014 of 2008 under Section 92 of CPC for framing a scheme for management and administration of the first respondent Temple, which according to them is a public trust and also to appoint a Board of Trustee for the first defendant temple.
2.This Court, by an order, dated 23.09.2008 held that the applicants/plaintiffs were members of the Jain community and have contributed their mite to the development of the temple. They have also shown that they are interested in the welfare of the temple. The permission to file a suit under Section 92 of CPC was granted.
3.It was stated that notice was sent to the first respondent and other representatives. When they came back unclaimed the service was held to be sufficient. As there was no representation on their side and the service of one Heerachand Nimani was awaited and the second respondent was already served with notice and also the first respondent having served with notice but chose not to represent, the leave to sue was granted.
4.The suit was admitted on 31.10.2008. Pending the suit, an applicants filed O.A.No.575 of 2009 for an interim injunction restraining the respondents from taking up the agenda relating to the passing and adoption of accounts of the first respondent trust in the meeting scheduled to be held on 14.06.2009. However, this Court by an order dated 11.06.2009 rejected the said plea.
5.O.A.No.1153 of 2008 is filed seeking to appoint a Receiver to manage and administer the first respondent Trust, pending disposal of the suit.
6.O.A.No.1154 of 2008 is for an order of an interim injunction, restraining the respondents from functioning as Working Committee members of the first respondent Trust, pending disposal of the suit.
7.A.No.4970 of 2008 is filed seeking to appoint a Chartered Accountant and to direct him to scrutinise the books of accounts, vouchers, bills and other documents of the first respondent Trust from the year 1995 and to submit a detailed report before the court.
8.A.No.5265 of 2008 is to revoke the leave granted by this court in A.No.3320 of 2008, dated 23.9.2008.
9.It was stated that the first defendant temple is a public trust dedicated for worship by the Jain community living in the areas of Choolai, Vepery and Purasaiwalkam. Therefore, the said trust was to be streamlined and the management brought to books to ensure a neat and efficient administration of the first defendant temple. The income of the temple had increased by several folds by way of cash and jewels over a period of time. Unless proper accounting and maintenance of books is ensured, the persons in the management would continue to mismanage the finances of the temple and its properties. In the present case, the erstwhile Potedar Prakash Chand Golecha had failed to submit the books of accounts for verification by the members of the Sangh. He produced the accounts for the period 1998-2001 before the Mediators and there were several discrepancies, which were not explained by him. Subsequent to 2001 upto this date of filing of the suit, no meeting of general body had passed any account. They are also depositing the temple funds to the supporters of the present committee.
10.In opposition to the applications filed by the plaintiffs, the first respondent temple represented by its committee member Rajendra Kumar Kochar has filed a counter affidavit. It was sated that a similar proceedings was launched by one Harak Chand Gulecha and T.Shantilal Gulecha against the first respondent temple on similar allegations and A.No.3578 of 2003 was filed by them, seeking leave of this court for initiating a suit under Section 92 CPC. The said application was resisted by the first respondent temple. This Court, by an order, dated 2.12.2003, refused to grant leave to institute the suit. Thereafter, an appeal was filed in OSA No.88 of 2004 by the said individuals.
11.The Division Bench, by its order, dated 8.7.2008, came to the conclusion that since Sri Choolai Bazaar Jain Sangh, which is the owner of the suit property, was not specifically impleaded as party respondent to the proceedings, the suit under Section 92 CPC cannot be sustained. The matter was remanded to this court with a direction to grant an opportunity to the appellants to implead the real owner of the property. After granting an opportunity to the added party, a decision has to be taken either to grant leave or not. The said order became final and it was not questioned by any aggrieved parties.
12.Therefore, once again the present applicants have filed a similar suit with similar allegations. They omitted to implead the real owner of the property, i.e. Sri Choolai Bazaar Jain Sangh. The cause title shows that the temple is represented by its Managing Body of Choolai Bazaar Jain Sangh, is contrary to the spirit of the order of the Division Bench. It was also stated that there cannot be several suits under Section 92 for the very same cause of action. If the earlier suit is filed in a representative capacity, then no fresh suit can be filed. It was further stated that by convention of the temple Choolai Bazaar Jain Sangh it elects the Potedar or Potedars as well as an Executive Committee in its Annual General Body Meeting held once in three years. The elected office bearers shall continue for three years. The temple transferred its properties on 27.09.1956 and five members were appointed to register a Trust and the process was yet to be completed.
13.It was further stated that once again, the general body had passed a resolution to draft a new Trust Deed. On 2.10.1989, a trust deed was prepared and handed over to the then Potedar Sri Ranulalji Gulecha for its adoption in the next general body meeting. But, in the subsequent meeting held on 8.3.199, an unanimous decision was taken to follow the Potedar Padathi and thus, the old system continues. At the general body meeting held on 3.1.1993, since the then Potedar Sri Ranulalji Gulecha expired, his son Sri Prakashchandji Gulecha was unanimously elected as the acting Potedar. In the subsequent meeting, his selection was confirmed. All the proceedings were duly recorded in the minutes book. At the general body meeting held on 27.4.2003, a five member committee was formed, in which a new trust deed was directed to be prepared. In the general body meeting held on 20.7.2003, the accounts for the year 2000-2001 was passed unanimously and an adhoc committee was formed to present a new trust deed. The general body meeting of the Sangh attended by 93 members rejected the draft trust deed.
14.It was further stated that several false complaints were made to the police authorities. There were differences of opinion amongst the members of the committee. It was also stated that the earlier application filed under Section 92 CPC was to be withdrawn unconditionally. The accounts were audited by a reputed auditor and presented to the Income Tax department upto 31.3.2006. Even for the subsequent years, it was duly audited. There was no breach of trust and the funds of the public trust. There was no scope for the appointment of a Receiver or an appointment of a new Chartered Accountant. The respondents have filed a caveat. Since they were not duly notified, the leave granted for instituting the suit should be revoked. For this purpose, an application in A.No.5265 of 2008 was also filed with similar allegations.
15.In opposition to the allegations, the applicants/plaintiffs had filed a reply affidavit, stating that necessary parties were sought to be served duly and yet they did not appear. The second defendant, who was managing the temple for a decade, handed over the management of the temple to the working committee consisting of 9 members. The accounts were not maintained properly. The temple has got no PAN number. There was no trust deed. The application to revoke the leave cannot be ordered as it has not been filed by a proper party.
16.Similarly, in opposition to the injunction application, a detailed counter affidavit has been filed.
17.The counter affidavit filed by Rajendra Kumar Kochar was also adopted by the other defendants 1(b) to 1(i) by a joint memo.
18.As held by the Supreme Court in Biswanath Vs. Sri Thakur Radha Ballabhji reported in AIR 1967 SC 1044 to invoke Section 92 three conditions have to be satisfied, namely (i) the trust is created for public purposes of a charitable or religious nature, (ii) there was a breach of trust or a direction of court is necessary and (iii) the relief claim is one or other of the reliefs enumerated therein. In the present case, all the three conditions are satisfied.
19.The Supreme Court has held in Charan Singh Vs. Dharshan Singh reported in 1975 (1) SCC 298 that to decide the maintainability of the suit under Section 92 CPC, it depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. No doubt, in the present case, leave was granted without hearing the temple. Now, the temple and its representatives have come on record. Though most of the objections was that the earlier proceedings were pending before this court in A.No.3578 of 2003. After its initial rejection by this Court, it was once again remanded by the Division Bench for fresh consideration. The rejection was made only on the ground that the owner of the temple was not made as a party.
20.Mr.T.Viswanatha Rao, learned counsel appearing for defendants brought to the notice of this court the judgment of the Supreme Court in R.Venugopala Naidu and others Vs. Venkatarayulu Naidu Charities and others reported in AIR 1990 SC 444 = 1989 Supp (2) SCC 356 and stated that the suit under Section 92 CPC is a representative suit and it binds not only the party named in the the suit title, but also those who are interested in the trust. It is for that reason Explanation VI to Section 11 of CPC constructively barred by res judicata the entire body or interested persons for reagitating the matters directly and substantially in issue in an earlier suit under Section 92 CPC. Therefore, once a suit under Section 92 is filed, only that suit in which leave granted must be proceeded with.
21.In the present case, the leave to sue application was never prosecuted by the persons who came and filed that application and the subsequent OSA. Therefore, a pending application or non prosecuted application cannot be put against the present plaintiffs. The grounds raised that the earlier order of the Division Bench remanding the matter will cover the present suit cannot be accepted. Explanation VI will come into operation only when leave was granted by the court in the earlier application. Otherwise, there is no scope to press into service Section 11 CPC for non suiting the present applicants/plaintiffs. Hence the application to revoke the leave granted, at the instance of the respondents/defendants cannot be entertained.
22.The learned counsel for the defendants also relied upon the judgment of the Supreme Court in Vidyodaya Trust Vs. R.Mohan Prasad and others reported in 2008 (3) CTC 868 = 2008 (4) SCC 115 and contended that normally notice should be given before deciding the question whether leave is to be granted or not. If in a case where notice has not been given and leave is granted, it is open to the court to deal with the application for revoking the leave. But, in the present case, the first defendant temple has been given notice and some of them had received but not appeared.
23.In this context, it is necessary to refer to the decision of the Supreme Court in R.M.Narayana Chettiar Vs. N.Lakshmanan Chettiar reported in 1991 (1) SCC 48. In para 17 of the said judgment, it was held that the desirability of a notice being given to the defendants cannot be regarded as a statutory requirement to be complied with before leave under Section 92 CPC can be granted as that would lead to unnecessary delay and in a given case, cause considerable loss to the public Trust. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
24.Therefore, the question of notice did not arise. Considering the objections made by the respondents, this court is of the opinion that the leave already granted need not be revoked. It is a case where the suit must be allowed to be proceeded with. Hence, A.No.5265 of 2008 to revoke the leave stands dismissed. No costs.
25.With reference to the other applications filed by the applicants/plaintiffs for various reliefs, such as interim injunction, appointment of Receiver and Chartered Accountant, they cannot be entertained at this juncture and they must succeed in framing a scheme for the temple. Hence applications in OA Nos.1153 and 1154 of 2008 and A.No.4970 of 2008 will stand dismissed. No costs.
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