IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.6861/2019 (CPC) BETWEEN:
SUBHASHCHANDRA M MODI S/O LATE MAHANTAPPA MODI AGED ABOUT 62 YEARS SOLE TRUSTEE OF PADMABHUSHAN DR.M.C.MODI PUBLIC TRUST R/AT PADMABHUSHAN DR.M.C.MODI HOSPITAL MAHALAXMIPURA BENGALURU – 560 086 … APPELLANT (BY SRI.RAJESWARA P.N., ADV.) AND:
1. KISHORE P.MANAY S/O B.R.P.MANAY AGED ABOUT 51 YEARS R/AT NO.1378, 6TH MAIN 2ND STAGE, WEST OF CHORD ROAD ABOVE SRS DIGITAL MAHALAXMIPURAM BENGALURU – 560 086 2. T.S.NANDINI W/O ASHOK J.R., AGED ABOUT 44 YEARS R/AT NO.38, 1ST MAIN 3RD CROSS, JAI MARUTINAGAR NANDINI LAYOUT BENGALURU – 560 096 3. JAYALAKSHMI W/O NAGARAJ AGED ABOUT 48 YEARS R/AT NO.1884, 21ST MAIN 20TH CROSS, BEHIND MARUTHI MANDIR VIJAYANAGAR BENGALURU – 560 040 4. MUNIRAJU B. S/O BEERAIAH AGED ABOUT 42 YEARS NO.26, 17TH CROSS B.K.NAGAR, YESHWANTHPUR BENGALURU – 560 022 … RESPONDENTS (BY SRI.R.B.SADASIVAPPA, ADV.) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 16.08.2019 PASSED ON I.A.NO.1 IN OS.NO.777/2018 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU [CCH-NO.2], DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether the order of the trial court dated 16.08.2019 in O.S.No.777/2018 passed on I.A.No.I under Order XXXIX Rule 1 and 2 CPC, rejecting the said application is sustainable under law?” is the question involved in this case.
2. One Dr.M.C.Modi, who was honoured with “Padmasree” and “Padmabhushana” awards for his yeoman services in Ophthalmologic field, had promoted a Trust called “Padmasree Dr.M.C.Modi Public Trust” (hereinafter referred to as the ‘Trust’) under the registered Trust Deed dated 20.09.1965 with an object of serving the humanity and for prevention and eradication of human blindness, eye diseases and for that purpose, maintaining eye hospitals, mobile eye surgery camps, etc.
3. Dr.M.C.Modi later effected several rectification deeds to the original Trust Deed dated 20.09.1965. The last such rectification deed was dated 14.09.2001 wherein the Trust was renamed as “Padmabhushana Dr.M.C.Modi Public Trust”.
4. Dr.M.C.Modi passed away on 11.11.2005.
He was survived by his son Dr.Amarnath and daughter- in-law Dr.Suvarna. During the life time of Dr.M.C.Modi, he had nominated Dr.Amarnath and Dr.Suvarna as the Trustees of the aforesaid Trust. Dr.Suvarna passed away on 26.08.2012 and Dr.Amarnath passed away on 28.01.2014. They were not survived by any Class-I heirs.
5. In the meantime, some persons claiming to be the persons interested filed Misc.P.No.196/2014 before the Principal City Civil and Sessions Judge, Bangalore, under Section 92 CPC seeking framing of the scheme for the administration of “Padmabhushana Dr.M.C.Modi Public Trust”.
6. On 31.5.2014, the Tahsildar, Bangalore North Taluk, exercising powers under Sections 145 and 146 of Cr.P.C., appointed the Special Tahsildar as Receiver for the administration of the Trust as there were rival claims over the Trust.
7. The appellant claims that he is the nephew of Dr.M.C.Modi. He claims that by invoking the powers under Clause-10 of the Trust Deed dated 20.09.1965, the Deputy Commissioner vide order dated 24.06.2016 has appointed him as the sole Trustee. That order of appointment was challenged before this court in W.P.Nos.39158-39161/2016 (GM-RES).
8. On Deputy Commissioner appointing the appellant as the sole Trustee, on 18.07.2016 the Tahsildar, Bangalore North Taluk withdrew the order dated 31.05.2014 appointing the Receiver for the Trust.
9. On 16.12.2016, the Tahsildar, Bangalore North Taluk appointed the District Health Officer as Technical Receiver and Special Tahsildar as Administrative Receiver for management of the aforesaid Trust. The appellant challenged that order before this Court in Criminal Petition No.275/2017.
10. This Court vide order dated 23.8.2018 allowed the said petition and quashed the said order of the Tahsildar, Bangalore North Taluk on the ground that the Tahsildar has failed to follow the requirements of Sections 145 and 146 of Cr.P.C. and remanded the matter to the Tahsildar for fresh consideration till the Taluka Executive Officer decides that matter. Further this Court appointed the Special Tahsildar, Bengaluru North Taluk, as the Receiver for 30 days.
11. That order was challenged before the Hon’ble Supreme Court in S.L.P.No.7178/2018. That Special Leave Petition was disposed of giving liberty to the petitioner to make appropriate application before this Court in Criminal Petition No.275/2017. When that application was made before this Court, this court disposed of said application holding that the period of one month expired, therefore, application has become infructuous.
12. In the meantime, the Taluka Executive Officer on reconsideration issued another order dated 22.9.2018 appointing Special Tahsildar as Receiver. Even that order was challenged before this court in Criminal Petition No.9477/2018 and that petition was allowed on 21.12.2018 quashing the order of the Tahsildar and again remanding the matter to the Tahsildar for re-consideration. On remand the Tahsildar issued notice to the parties for re-consideration. Those notices were challenged before this court in W.P.No.4420/2019 (GM-RES) and this court stayed further proceedings in No.MAG(4)MIS/CR/104/2015-16.
13. The order of the Deputy Commissioner dated 24.6.2016 appointing the appellant as sole Trustee was challenged before this court by the petitioners in Misc.Petition No.196/2014 in W.P.Nos.39158-39161/2016 (GM-RES). This Court vide order dated 16.6.2017 disposed of the said writ petitions holding that the Deputy Commissioner has not passed the order in discharge of his public duty, but purportedly by virtue of Clause-10 of the Trust Deed, therefore said action does not lie within the compass of Articles 226 and 227 of the Constitution of India.
14. It was further held in the said order that since the proceedings under Section 92 CPC are pending before the competent civil court, the order of the Deputy Commissioner could still be assailed in those proceedings. It was held that the appointment of Administrator as interim arrangement pending the proceedings under Section 92 CPC and other arrangements are exclusively within the domain of the Court in the proceedings under Section 92 CPC.
Therefore, the petitioners therein could avail that remedy.
15. The Bangalore Development Authority had leased the property bearing CA site No.1, measuring East-West (280+360)/2, North-South (310+275)/2 situated at Dr.M.C.Modi Road, West of Chord Road II Stage, Mahalakshmipura, Bangalore-560 086, for 99 years for establishing the hospital for the Trust. Some of the portions of the property were let out to the tenants. The tenants of those tenements filed O.S.No.834/2014 before the Principal City Civil and Sessions Judge, Bangalore, under Section 73 of the Indian Trust Act seeking appointment of trustees for the management of the Trust. That matter is still pending.
16. The appellant sought impleadment of himself as co-respondent in Misc.P.No.196/2014. In Misc.P.No.196/2014 some interim applications were filed. On 21.6.2017 on such applications, some interim orders including the order directing the parties to maintain status quo were passed by the Principal City Civil and Sessions Judge, Bangalore. That order was challenged before this court in W.P.No.52113/2017 (GM-CPC). The interim stay of the order of status quo and of further proceedings in Misc.P.No.196/2014 was sought. This court vide order dated 14.12.2017 granted the interim stay as prayed for.
17. Such being the position, the appellant filed O.S.No.777/2018 against the respondents herein claiming that they were only the employees in the Hospital run by the Trust and he terminated their services on 09.01.2018. He further contended that despite the termination of their services, they are obstructing him in the management of the Trust and therefore, he sought decree for permanent injunction. He filed I.A.No.1 in the said suit for temporary injunction.
18. The trial court on hearing the parties by the impugned order rejected the said application on the ground that he has failed to satisfy the prima facie case of his right.
19. An order of temporary injunction under Order XXXIX Rule 1 and 2 CPC is a discretionary order. Unless it is shown that the discretion is exercised arbitrarily or in a perverse manner in rejecting the application of the appellant, there is no scope for interference in the said order in this appeal.
20. It is not in dispute that Dr.M.C.Modi Charitable Eye Hospital, Rajajinagar, Bangalore, in respect of which the appellant sought injunction was established by Padmabhushana Dr.M.C.Modi Public Trust, which is a public Trust. The appellant/plaintiff based his claim for temporary injunction on the ground that he is the sole trustee of the said trust by virtue of the order of the Deputy Commissioner, Davanagere, on 24.06.2016.
21. Admittedly, this court in W.P.Nos.39158- 39161/2016 (GM-RES) though dismissed those petitions held that the petitioners therein could agitate the validity of the said order of the Deputy Commissioner in Misc.P.No.196/2014 filed by them before the Principal City Civil and Sessions Judge, Bangalore, under Section 92 CPC. The said matter is still pending for adjudication.
22. In view of the order of this Court in the aforesaid writ petitions, an amendment application filed to question the order of the Deputy Commissioner is still pending. The appellant is required to satisfy the court that prima facie his order of appointment is valid. The order of appointment was based on Clause-10 of the Trust Deed dated 20.9.1965. The said clause authorizes the Deputy Commissioner, Davanagere to appoint the trustee, only in case the author of the trust dies without nominating a trustee during his life time. It is the admitted fact that the author of the trust did not die without nominating his successors.
23. Further the said order of the Deputy Commissioner does not indicate that the fact of pendency of Misc.P.196/2014 was brought to the notice of the Deputy Commissioner. The last rectified trust deed was registered at Bengaluru and trust property situated at Bengaluru. The order discloses that one person by name H.S.Oswal goes and files an application before the Deputy Commissioner Davanagere to appoint the appellant as sole trustee and the Deputy Commissioner appoints him as the sole trustee without reference to any pending proceedings or revised trust deeds. Prima facie the order of appointment invoking Clause-10 of the original trust deed itself was not in accordance with the said clause-10 and moreover that was to be tested in Misc.P.No.196/2014.
24. The trial court considering various proceedings including the order of appointment dated 24.6.2016 relied upon by the appellant, the proceedings in Misc.P.No.196/2014, observations of this court in W.P.Nos.39158-39161/2016 (GM-RES) and O.S.No.
834/2014 held that the appellant has failed to make out prima facie case of his right. The trial court further held that all those issues have to be decided in Misc.P.No.196/2014 and O.S.No.834/2014.
25. When the validity of the order of appointment of the appellant itself is in question and having regard to the observations made above, this court does not find any arbitrariness or perversity in the finding of the trial court that the plaintiff has not made out prima facie case of his right. When the prima facie case of right itself was not made out, the question of considering injury to such right or the balance of convenience does not arise.
26. Under the circumstances, the impugned order does not call for any interference. Therefore, the appeal is dismissed with costs. The courts below shall decide the claim of the appellant uninfluenced by any of the observations made in this order.
In view of the disposal of the appeal, I.A.No.1/2019 stood disposed of.
Sd/- JUDGE KNM/-