IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.859 OF 2018 BETWEEN 1. Sri. Venkateshwara Education Trust (R) No.98, Maruthi Industrial Area, 10th Main, 4th Phase, Peenya 2nd Stage, Bengaluru-560058.
2. Sri. Jagadeesh S., Trustee, Sri. Venkateshwara Education Trust (R) No.110, 1st ‘A’ Cross, 1st Block, Nagarbhavi, 2nd Stage, Bengaluru-560072.
3. Sri. G.Srinivasulu, Trustee Sri Venkateshwara Education Trust (R) R/at Huligere Village, Madhalur Post, Sira Taluk, Tumkur District 4. Smt. Sowmya P.N., Trustee Sri. Venkateshwara Education Trust (R) No.110, 1st ‘A’ Cross, 1st Block, Nagarbhavi, 2nd Stage, Bengaluru-560072. (By Sri. B.S.Nataraja, Advocate) AND 1. Sri. Venkateshwara Education Trust (R) Sy.No.67/2, Dasanapura Village, Bengaluru North Taluk, Bengaluru Rept. By Trustee/Secretary Smt. Anusuya Ramakrishna 2. Dr. Gonchigari Narayana S/o. Late Giriyappa, Aged about 69 years, 3. Smt. Jayanthi Narayana, W/o. Dr. Gonchigari Narayana, Aged about 61 years, 4. Smt. Priyadarshini Narayana D/o. Dr.Gonchigari Narayana, Aged about 35 years, The respondent No.2 to 4 Are R/at No.16/21, 3B Pearl Palace Apartment, Palace Cross Road, Chakravarthi Layout, Bengaluru-560020.
5. Smt. Anasuya Ramakrishna W/o. G.Ramakrishna, Aged about 56 years, 6. Miss. Shilpa Ramakrishna, D/o. G.Ramakrishna, …Appellants Aged about 33 years, Respondent No.5 & 6 Are R/at No.1344, 3rd Cross, MRHB Colony, Vijayanagar North, Bengaluru-560079.
…Respondents (By Sri. H.N.Shashidhara , Advocate for R2 to R6, R1 - Served) This RFA is filed under Order 41 Rule 1 read with Section 96 of the CPC., against the order dated 03.03.2018 passed on I.A.No.2 in O.S.No.5506/2017 on the file of the XVII Additional City Civil and Sessions Judge and Bengaluru allowing the I.A.No.2 filed under Order 7 Rule 11(d) Read with Section 151 of CPC.
This RFA coming on for admission this day, the court delivered the following:
JUDGMENT The plaintiffs in O.S.No.5506/2017 on the file of XVII Addl. City Civil Court, Bengaluru (trial court) are the appellants. They have challenged the order dated 03.03.2018 passed by the trail court rejecting the plaint upon an application made by the respondents under Order 7 Rule 11(a) of CPC.
2. The appellants brought a suit against the respondents for the following reliefs.
“(i) Pass a judgment and decree of declaration declaring that Sri Venkateshwara Education trust registered on 03.08.2002 / 1st plaintiff herein, as valid one and acted upon.
(ii) Pass a judgment and decree of declaration declaring that Sri Venkateshwara Education trust registered on 10.08.2005 / 1st defendant herein, as a trust which was never acted upon, and the same is non-est in the eye of law.
(iii) Issue a mandatory injunction, directing the defendants to handover the administration of the 1st plaintiff trust and its educational institutions, along with the records / documents / assets / bank account balance, which were received by the defendants on 31.10.2014 in the presence of the Deputy Registrar, City Civil Court, Bengaluru (iv) Direct the defendants to furnish the books of accounts/status of assets, from 31.10.2014 to till the day of handing over the charge back to the 1st plaintiff or its office bearers.
(v) Direct the defendants to hand over the educational institutions that are functioning in the address of the 1st defendant, subsequent to 31.10.2014, which stand in the name of the 1st plaintiff, with affiliations and sanctions that stand in the name of the 1st plaintiff trust (vi) Pass a judgment and decree of permanent injunction, restraining the defendants, their agents, workers, employees or anybody authorized by them from in any way interfering with the day to day affairs and administration of the 1st plaintiff trust dated 03.08.2002.
(vii) Pass such other orders, as the plaintiff is entitled to in the facts and circumstances of the case, including the costs of the proceedings”.
3. The respondents made an application under Order 7 Rule 11(d) of CPC to reject the plaint, as the suit against 1st defendant, in particular, was not maintainable since leave of the Court under Section 92 CPC had not been obtained.
4. The trial court entertained the application and rejected the plaint.
5. Assailing the impugned order the argument of learned senior counsel for appellant is that the trial court’s conclusion that leave under Section 92 of CPC is necessary, is opposed to law. It appears that the trial court has come to this conclusion merely for the reason that 1st respondent is a Charitable Trust. It has not been noticed that 1st appellant is a trust. No relief as can be sought for under Section 92 of CPC has been sought in the suit. The trial court appears to have not understood that real lis between the two trusts cannot be brought within the ambit of Section 92 of CPC. The trial court’s order is bad and unsustainable. In support of his argument he has relied upon a judgment of the Supreme Court in Smt. Rathnamma Vs. B.A. Srinivasa Gupta and others (1998 SCC Online Kar 662).
6. On the other hand, the learned counsel for respondent argues that the trial court has rightly come to conclusion to reject the plaint. The nature of the reliefs claimed in the suit very much falls within the scope of Section 92 of CPC. May be that 1st plaintiff is a trust, but the 1st defendant is also a charitable trust. Whenever a suit is filed against a trust, leave contemplated under Section 92 CPC is a must. The 1st defendant has also filed a suit against the plaintiffs, by obtaining leave. In the said suits, initially, the Civil Court rejected the application for leave. The same was challenged by the defendants by preferring an appeal to this court. Appeal was allowed, the Civil Court was directed to consider the application of the defendants again. This order was challenged by the appellants by preferring Special Leave Petition to the Supreme Court. This was later on withdrawn by them. Then the Principal City Civil Judge reconsidered the petition and accorded leave under Section 92 CPC. The same principle is also applicable to the suit filed by the appellants. Therefore the appellants cannot say that Section 92 CPC is not applicable. He argues that there is no infirmity in the impugned order. He seeks to support his argument from the following authorities.
i. Dhirendra Singh Vs. Dhanai (AIR 1983 Allahabad 216) ii. Charan Singh Vs. Darshan Singh (AIR 1975 SC 371) iii. Madappa Vs. Mahanthadevaru (AIR 1966 SC 878) 7. I have considered the arguments and perused the impugned order and also the plaint filed in O.S.No.5506/2017. A reading of the plaint shows that the 1st plaintiff trust (1st appellant) came into existence on 03.08.2002 for charitable purposes which include establishment of educational institutions. It started two institutions, viz., Sri. Venkateshwara Nursing School and Sri. Venkateshwara Nursing College. In the course of time, on account of certain differences among the trustees, the 1st appellant trust was revoked or dissolved by executing a deed on 10.08.2005.
8. Despite dissolution of the trust, the 2nd appellant continued to manage the educational institutions keeping in mind the interest of the students. Very soon the trustees realized their mistake and decided to continue the trust and therefore there came into existence another deed on 24.10.2007 revoking the deed of cancellation dated 10.08.2005. Thus the first appellant trust came into existence once again. Certain amendments were also brought to trust deed with the induction and retirement of some of the trustees. The allegation is that respondents 2 to 6, being the relatives of 2nd appellant started a trust on 10.08.2005 under a name identical with 1st appellant trust. It is stated that 2nd appellant consented for first respondent trust to come into existence and therefore it came into existence on the day when first appellant trust was dissolved. But 2nd appellant realized his mistake and decided not to entertain respondents 2 to 6 in the affairs of the first appellant trust. It is stated that first respondent started claiming management over educational institutions of the first appellant trust and there arose litigations; a suit came to be filed and the appellants were to face contempt of court proceedings and ultimately, the second appellant handed over charge of first appellant trust to Smt. Anasuya Ramakrishna i.e., 5th respondent. It is stated that in the light of all these happenings, the appellants had to file a suit for the above reliefs to protect their interest.
8. Therefore from the contents of the plaint, very clearly it can be seen that the appellants want to assert the existence of their trust and its legal right to take back the possession and management of educational institution from the first respondent trust. This is a fight between two trusts, which is akin to a suit between two persons in their individual character or capacity. The trial court has held that some of the reliefs claimed by the appellants fall within the purview of Section 92(c)(cc), (d),(e),(g),(h) of CPC. This observation does not stand to any reason; perhaps the trial court has come to this conclusion merely on the basis that the first respondent is a charitable trust. It has not examined the premise how the suit is framed. In this context, I find it useful to refer to judgment of this court in Rathnamma Vs. B.A. Srinivas Gupta, a case cited by appellants counsel. In para 13, it is held as below:
“13. Section 92 has been the subject-matter of consideration in the case of Bishwanath and Another v Thakur Radha Ballabhji and Others. Their Lordships of the Supreme Court have followed the dictum laid down in the case Abdur Rahim, supra and laid down in paragraph 7 at page 1046 as under:
"7. It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely (i) the trust is created for public purpose of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section, A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure.
10. One of the decisions cited by respondents’ counsel is rather helpful to the appellants. In the case of Charan Singh (AIR 1975 SC 371), it is held as below:
“8…………The plaintiffs in their plaint did not in terms ask for the one or the other. They, however, alleged acts of breach of trust, mismanagement, undue interference with the right of the public in the worship of Granth Sahib. They wanted a decree of the Court against the appellant to force him to carry out the objects of the trust and to perform his duties as a Trustee. Reading the plaint as a whole it is not a suit where the plaintiffs wanted a declaration of their right in the, religious institution in respect of the Granth Sahib. But it was a suit where they wanted enforcement of due performance of the duties of the trustee in relation to a particular object of the trust. It is well-settled that the maintainability of the suit under section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement”.
11. The other two decisions referred to by the respondents counsel are not necessary to be referred to here as they have no application to the factual circumstances put forward in this appeal. Therefore the conclusion is that the trial court has routinely applied Section 92 of CPC, without understanding the actual controversy between the parties.
The approach that a public trust is the defendant and hence Section 92 is applicable, is fallacious. For all these reasons appeal stands allowed. Impugned order is set aside. I.A.2 under Order 7 Rule 11(d) CPC is dismissed. Suit is restored. The parties are directed to appear before the trial court on 05.03.2019.
Sd/- JUDGE sd