IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION No.372 OF 2019 BETWEEN:
1. KRISHNAYYA SHETTY, S/O LATE M.KORAGAYYA SHETTY, AGED ABOUT 73 YEARS, SHISHIRA, BEHIND DREAM LAND ARCADE, POST: SALIGRAMA, BRAMHAVAR TALUK, UDUPI DISTRICT-576225.
2 . SUDARSHAN HEGDE, S/O LATE B.PANDURANGA HEGDE, AGED ABOUT 58 YEARS, "SWARNA" H.NO.1/57, POST AND TALUK BRAMHAVARA, UDUPI DISTRICT-576213.
3. RATHNAKARA SHETTY, S/O SHEENAPPA SHETTY, AGED ABOUT 62 YEARS, "SADHVINI", AIRODY VILLAGE, POST SASTHANA, BRAMHAVAR TALUK, UDUPI DISTRICT-576226.
… PETITIONERS (BY SRI.PUSHPAHASA R, ADVOCATE) AND THE LIONS CLUB OF BRAHMAVARA-BARKUR, REPRESENTED BY ITS PRESIDENT, AND MEMBERS OF THE BOARD OF DIRECTORS NAMELY;
1. LION G. BALAKRISHNA SHETTY, AGED 62 YEARS, PRESIDENT S/O LATE NARAYANA SHETTY, NISARGA, GUDEBETTU, VARAMBALLY VILLAGE, POST AND TALUK, BRAHMAVARA, UDUPI DISTRICT-576213.
2. LION SHUBHAKARA SHETTY, 3RD VICE PRESIDENT, 62 YEARS, S/O LATE MAHABALA SHETTY, SHREYAS APARTMENT, KUNJAL ROAD, POST AND TALUK BRAHMAVARA, UDUPI DISTRICT – 576213.
3. LION A. SADASHIVA HEGDE, AGED ABOUT 69 YEARS, S/O NARAYANA HEGDE, MEENAKSHI ADARSH NAGAR, HARADY ROAD, BRAHMAVARA TALUK, UDUPI DISTRICT – 576213.
4. LION ROBERT FURTADO, AGED 57 YEARS, S/O ANTONY FURTADO, FURTADO POND PRODUCTS, ARIODY POST, SASTHAN, BRAHMAVARA TALUK, UDUPI DISTRICT – 576226.
5. LION RAJEEVA ALVA, AGED 73 YEARS, S/O SHEENAPPA ALVA, KIRTHI TILES, MADI, POST, CHERKADY, UDUPI DISTRICT – 576215.
6 . LIONS CLUB OF BRAMHAVARA- BARKUR, TRUST FOR SERVICES AND CHARITIES,(REGD) REPRESENTED BY ITS TRUSTEES.
7 . LION N.BHUJANGA HEGDE, AGE 71 YEARS, S/O THEJAPPA HEGDE, NOOJI HOUSE, HESKATTOR KUNDAPUR TALUK, UDUPI DISTRICT – 576210.
8. LION BALAKRISHNA HEGDE, AGE 66 YEARS, S/O MAHABALA HEGDE, A.M.SONS TILE FACTORY, KOKKARNE POST, UDUPI DISTRICT – 576234.
9 . LION PRABHAKAR KUNDER, AGE 57 YEARS, S/O H.C.KUNDER, "PAYONIDHI" PADUKERE, KOTATHATTU VILLAGE, POST KOTA, BRAMHAVARA TALUK, UDUPI DISTRICT – 576221.
10 . LION K.ANANDA SHETTY, AGE 61 YEARS, S/O RAMANNA SHETTY, "SRI RAMA" YELAHAKLU, VADDARSE VILLAGE, POST BANNADY, BRAHMAVARA TALUK, UDUPI DISTRICT-576225.
11 . LION JOSEPH BANZE, AGE 57 YEARS, S/O LATE PAUL BANZE, "L.A.JOSHIYANA"
OPPOSITE: SAINT ANTONY CHURCH, POST : SASTHAN BRAHMAVARA TALUK, UDUPI DISTRICT – 576226.
12 . LION K. JAYARAMA SHETTY, AGE 67 YEARS, S/O THEJAPPA SHETTY, "LALITHA NILAYA" PANDURANG NAGAR, POST AND TALUK BRAHMAVARA, UDUPI DISTRICT - 576213.
13. LION VENKATARAMANA SHETTY, AGE 59 YEARS, S/O THIMMAPPA SHETTY, "ANASOOYA" VARAMBALLY VILLAGE, POST : SALIKERI, BRAHMAVARA TALUK, UDUPI DISTRICT – 576213.
14. SUDHAKARA HEGDE, AGE 50 YEARS, S/O SHEKHAR HEGDE, GUDDY FARMER, KEREBETTU VILLAGE, SHIVAPURA POST, KARKALA TALUK, UDUPI DISTRICT-576112.
15. DR. KRISHNAPRASAD SHETTY, AGE 69 YEARS, S/O PADMANABHA SHETTY, PATEL HOUSE, BALKUDRU VILLAGE, POST: HANGARAKATTE, BRAHMAVARA TALUK, UDUPI DISTRICT.
16 . DR MOHAN REDDY AGE 59 YEARS, S/O S.SANJEEVA REDDY, "SRI DURGA" OPPOSITE: KOTA PETROL BUNK, CHITRATADY VILLAGE, POST: SALIGRAMA, BRAHMAVARA TALUK, UDUPI DISTRICT.
17. A. KARUNAKARA SHETTY, AGE 60 YEARS, S/O BHJUNGA SHETTY, "NANDANA" NH66, GUNDMI VILLAGE POST: SASTHANA, BRAHMAVARA, UDUPI DISTRICT.
18. Y. DAYANANDA SHETTY, AGE 70 YEARS, S/O BHUJANGA SHETTY, "INDIRA" HARADY VILLAGE, POST: SALIKERI, BRAHMAVAR TALUK – 576213.
19. KUSHALA SHETTY, AGE 58 YEARS, S/O HERIYANNA SHETTY, "HONNA PADMA" BIRTHI, VARAMBALLY VILLAGE, POST: SALIKERE, BRAHMAVARA TALUK, UDUPI DISTRICT.
20. B. SEETHARAMA SHETTY, AGE 78 YEARS, S/O LATE VEERANNA SHETTY, RETIRED PRINCIPAL, HARADY VILLAGE, POST: BARKUR, BRAHMAVAR TALUK, UDUPI DISTRICT-576210.
21. SYNDICATE BANK, BRANCH SALIGRAMA, REPRESENTED BY IT’S MANAGER.
22. VIJAYA BANK, BRANCH BRAHMAVARA, REPRESENTED BY IT’S MANAGER.
23. KARNATAKA BANK LTD., SALIGRAMA BRANCH, REPRESENTED BY IT’S MANAGER.
24. LIONS CLUB BRAHMAVARA, BARKUR CHARITABLE TRUST, REPRESENTED BY IT’S TRUSTEES, DEFENDANTS 2 TO 11 WITH THEIR DESIGNATIONS AS INDICATED ABOVE AGAINST THEIR NAMES.
…. RESPONDENTS (BY SRI.VIGNESHWAR S SHASTRI, ADVOCATE FOR R.1 TO R.5; NOTICE TO R.6 TO R.24 IS DISPENSED WITH V/O/D 28.08.2019) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 18.06.2019 PASSED IN MISCELLANEOUS CASE NO.4/2019 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, ALLOWING THE PETITION FILED UNDER SECTION 92(1) R/W SECTION 151 OF CPC AND ETC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This Revision Petition filed under Section 115 of Civil Procedure Code is directed against the order dated 18.06.2019 passed in Miscellaneous Case No.4/2019 on the file of the Principal District Judge, Udupi by which the Miscellaneous Petition filed under Section 92(1) read with Section 151 of Civil Procedure Code was allowed and petitioners were given permission to prosecute the suit.
2. The petitioners are the 12th, 13th and 14th respondents before the trial Court and respondent Nos.1 to 5 are the petitioners before the trial Court. The parties to this proceeding would be referred to as they stand before the trial Court. It is stated that the petitioners filed Miscellaneous Case No.4/2019 under Section 92(1) read with Section 151 of Civil Procedure Code seeking leave of the Court to prosecute the suit in respect of the administration of the defendant No.1 – Trust alleging the mismanagement and mis-utilization of funds of the Trust. The petitioners in the petition alleged various misdeeds and misappropriation of funds by the Trustees of the respondent No.1 – Trust and also alleged that the Trustees are trying to destroy the very nature and fabric of the Trust. It is also alleged that the Trustees are mismanaging the Trust for their own personal gains and for undesirable activities of the other Trustees. The alleged act of the Respondents has brought threat to the smooth administration of the trust.
3. On issuance of notice the respondents appeared before the Court and filed their objections to the Miscellaneous Petition contending that the Miscellaneous Petition is not maintainable and the petition is filed with malafide intention and ill-motive. The learned District Judge under impugned order granted leave to prosecute the suit against the respondents.
4. Heard learned counsel for petitioners and learned counsel for respondents and perused the materials on record.
5. Learned counsel for the petitioners herein would submit that the procedure followed by the Court below is wholly improper and irregular. It is his submission that initially, the suit was filed before the Senior Civil Judge, Kundapura. The suit not being maintainable before the Senior Civil Judge, Kundapara, the same was re-presented before the Principal District Judge, Udupi District, wherein it was numbered as O.S No.1/2018 by the Registry on its filing. The suit summons was issued. The respondents on appearance objected. Thereafter, the District Court treated the I.A No.2 as Miscellaneous Petition which was numbered as Miscellaneous Petition No.4/2019. The learned counsel for the petitioners would submit that the Court cannot presume that there is mis-management and there must be prima-facie material on record to demonstrate that there is mis-management and mis-utilization of the funds. Mere an allegation of mis-management, the Court cannot grant permission to prosecute the suit, it requires the conditions laid down under Section 92 of CPC to be satisfied. Learned counsel for petitioners submits that the respondents have no locus standi to seek leave of the court to prosecute the suit under Section 92 of CPC and the resolution passed requiring some of the persons as Trustees is illegal. It is also his contention that maladministration, development of trust property for personal benefits or misappropriation have to be established, in the absence of which leave cannot be granted under section 92 of CPC. He submits that the intention of the petitioners is to take control over the Trust and the Hospitals run by it and nothing else. Learned counsel further submits that the trial Court in the absence of holding any enquiry and recording the evidence has passed the impugned order granting permission to prosecute the suit. Thus, prays for allowing the petition.
6. Per contra, learned counsel for respondents herein would submit that the trial Court has rightly permitted to prosecute the suit taking note of the allegations contained in the Miscellaneous Petition as well as in the suit. Mere granting of permission would not mean that the Petitioners are entitled for the relief sought for by them in the suit. It is his submission that since there is mis-management and mis-utilization of funds, it had become necessary for the petitioners to seek leave of the court to prosecute the suit. It is his further submission that some of the Trustees are acting against the interest of the Trust with a view to gain personal benefits. Thus, he justifies the impugned order.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration is;
Whether the trial Court is justified in allowing the petition filed under Section 92 of Civil Procedure Code?
The answer to the above point would be in the Affirmative for the following reasons.
8. Section 92 of Civil Procedure Code, which reads as follows;
“92. Public Charities.
(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or 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 the2[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree,-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.”
9. A reading of the above provision would make it abundantly clear that two or more persons interested in a public trust could make an application seeking leave of the Court to institute a suit to obtain a decree in respect of the reliefs enumerated therein. In the case on hand, there is no dispute with regard to the nature of Trust, which is a public Trust. In a petition under Section 92 of Civil Procedure Code, seeking permission to prosecute the suit shall be in respect of a Trust created for public purpose of a charitable or religious nature or administration of any such Trust. Such a petition shall be made by two or more persons having interest in the Trust for the reliefs that could be claimed under Section 92 of Civil Procedure Code. Moreover, while considering an application under Section 92 of CPC, the Court shall be satisfied from the petition averments that there are materials on record to grant leave to institute the suit and also to prosecute the same. While considering the application under Section 92 of CPC, it is not necessary for the court to hold trial or enquiry as to find out genuineness of the allegations or to establish the maladministration or misappropriation of assets at this stage. From the averments of the petition as well as from the objections, the Court has to prima facie find out the necessity for granting leave to prosecute the suit. In the instant case, the petitioners claimed that they are the Trustees of the Lions Club Brahmavara Barkur Charitable Trust, but on the other hand the respondents claim themselves to be the Trustees of the Lions Club Brahmavara Barkur Charitable Trust for services and charities. The relief sought in the suit is to declare that the respondent No.1 is validly represented by the Trustees i.e., defendant Nos.2 to 11 and for a direction to the defendant Nos.12 to 21 to render proper and correct accounts of the Trust to the plaintiff-club during their administration. I find that there is no need to repeat the petition averments/allegations or the averments of the objection statement. The learned District Judge on perusal of the material on record and on hearing the parties, was of the view that it is a case for granting of leave to prosecute the suit which is proper and correct.
10. The learned counsel for petitioners relied upon the various decisions of the Hon’ble Apex Court in the case of Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another reported in AIR 1974 SUPREME COURT 2141 at para No.14, which reads as follows;
“It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263; Sohan Singh v. Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna v. Lachhmi Narain, AIR 1948 Oudh 203). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, than a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Section 92.”
11. A reading of the above decision would indicate that at the time of considering the application filed under Section 92 of CPC, only the averments in the plaint ought to be looked into at the first instance and after trial, based on evidence on record, if it is found that the breach of Trust as alleged has not been made out, then the suit is liable to be dismissed. Hence, I am of the view that mere grating of permission under Section 92 of CPC to prosecute the suit would not mean that the petitioners-plaintiffs are entitled for the relief sought for by them in the plaint. It is for them to prove the allegations in a proper manner by producing cogent evidence.
12. Learned counsel for petitioners contended that the procedure followed by the District Judge is improper and irregular. From the submission and material made available on record, I am of the view that the learned District Judge made it in order the procedure followed by its registry. As submitted by the learned counsel for petitioners, initially the petition under Section 92 of CPC was filed before the Senior Civil Judge, Kundapura, which was subsequently re- presented before the Principal District Judge, Udupi and the registry immediately on presentation of petition appears to have assigned suit number as O.S.No.1/2018. On appearance of the respondents, it was pointed out that unless the permission to prosecute the suit is granted, the suit cannot be numbered. The District Judge treated I.A.No.2 as Miscellaneous Petition. The respondents filed their objections to the Miscellaneous Petition. The learned District Judge after considering the objection filed by the respondents, the petitioners herein, proceeded to grant leave to the petitioners to institute the suit. Subsequently, the said suit is numbered as O.S.No.3/2019. The petitioners have not stated how it had prejudiced their case. When no prejudice is pointed out and when the impugned order is passed after hearing the respondents, I find no error in the procedure followed by the learned District Judge. Thus, I find no material or jurisdictional error to interfere with the impugned order.
Accordingly, the Civil Revision Petition is dismissed.
Sd/- JUDGE NBM