IN THE HI6H COURT QF JUDICATURE AT^ILASPUR CIVIL REVISION N0. _^ OF 2010 PETITIONERS (Defendants) \\^..-' ^.^>v""y ......^%^ ^y...-^' 'l^^' ^..- ^••" •%'s,^ '* 'a: :^y .t.Mtiey • 1. Seth Kirodimal Dharmada Trust, Raigarh, a public trust duly registered under the C.6. Public Trust Act, 1951 having its registered office at Sadar Bazar, Raigarh acting through it's Chairman Shri Ramesh Kumar Moda, son of Late Purshottam Das Moda, aged about 62 years, resident of Sadar Bazar Raigarh (C6) 2. Ramesh Kumar Moda, son of Late Purshottam t)as Moda, aged about 62 years, Chairman of Seth Kirodimal Dharmada Trust, Raigarh (CG). 3. Smt. Umadevi, wife of Shri Ramesh Kumar Moda, aged about 55 years, Occupation- Housewife. 4. Rajesh Kumar Moda, son of Shri Ramesh Kumar Moda, aged about 40 years, Occupation-Business. No. 3 to 5 are residents of Sadar Bazar Raigarh (C&) 5. Manish Kumar' Singhaniya, son of Shri Mahendra Kumar- Singhaniya, aged about 35 RESPONbENT (Plaintiff) Vs years, Occupation-Business, resident of 268/10 6.T. Road, South Narayani Complex, Liluwa, Howrah (West Bengal), through Attorney Shri Vinod Kumar Sharma, son of Late Dhanraj Sharma, aged about 45, Occupation-Service, office of Seth Kir-odimal Dharmada Trust, Raigarh. 1. Kalicharan Keshaan. son of Late Madanlal Keshaan, aged about 85 years, Occupation- Social Welfare & Trustee, Seth Kirodimal Charity Trust, ^OU^A^ Kirodimal Bagicha, Hansi Chowk, (Hariyana) Bhiwani REVISION PETITION UN&ER SECTION 115 OF THE CO&E OF CIVIL PROCE&URE. 1908 \L \ HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0. 87 OF 2010 Seth Kirodimal Dharmada Trust & others •Vs. Kalicharan Keshaan ^ Post for pronouncement ofjudgment on f-> /02/2011 Sd/- N.K. Agarwal Judge sy .""°~l. ^s-«EaCT!». ^ w^^ss \ HIGHCOURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0. 87 OF 2010 PETITIONERS Defendants RESPONDENT Plaintiff Seth Kirodimal Dharmada Trust & others VERSUS Kalicharan Keshaan REVISION PETITION UNDER SECTION 115 OETHECODEOF CIVIL PROCEDURE (Sinele Bench: Hon'ble Mr. N.K. Agarwal, J^) Present : Shri BP Sharma, Advocate for the applicants. Shri Sanjay K Agrawal with Shri Ankit Singhal, Advocates for respondent. ORDER (Passed on /^ /02/2011) 1. Legality and propriety ofthe order dated 03.08.2010, passed by the District Judge, Raigarh, in Civil Suit No. 29-A/2010, whereby the petitioner's application filed under Order 7 Rule 11 of CPC, read with Section 151 ofCPC has been rejected, is under assail in this revision. 2. The facts giving rise to this revision are: the plaintiff/respondent instituted a suit before the District Judge, Raigarh, for declaratidn that resolution dated 21.02.10, passed by the applieants/defendants to remove the non applicant/plaintiff from trusteeship of applicant Trust is illegal, arbitrary and bad in law and the same is without jurisdiction as the resolution dated 21.08.01, whereby the applicant No. 3 & 4 were appointed as a tmstee, and the resolution dated 05.11.07, whereby the applicant No. 5 was appointed as a tmstee are illegal, arbitrary and bad m law and without jurisdiction. Consequential reliefofinjunction was also claimed. ^?-^^. %,"t»^y ^ • ..^^!::;ld' The suit as per para 33 of the plaint, was valued (or jelief of declaration at Rs. 1000/- and for relief of permanent injunction at Rs. 1000/- and accordingly court fees is paid. The applicants preferred an application under Order 7 Rule 11 of CPC raising preliminary objection regarding maintainability of the suit on the ground that suit is barred under Section 27(4) of the MP/CG Public Tmst Act, 1951 (for short 'the Act, 1951'). The maintainability ofthe suit was also assailed for want oftrial court's pecuniary jurisdiction. The trial court dismissed the said application Uolding that suit is not barred under Section 27(4) ofthe Act, 1951, and question ofproper valuation of the suit can be decided by framing preliminary issue in this regard. Shri BP Sharma, leamed counsel appearing for the applicants, by referring Sections 26 & 27 of the Act, 1951, would submit that under Section 27(4) ofthe Act, 1951, no suit relating to a public tmst under Section 92 ofthe Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any court on any matter in respect of which an application can be made under Section 26. In the present case, the cmx of fhe matter is that the plaintifl7respondent has been removed from trusteeship and new tmstees have been appointed and challenge is to the appointanent of the trustees and removing of plaintiff7respondent fi-om the post of Tmstee. In this view of the matter, specific jurisdiction has been conferred to the Registrar, Public Tmst and fhe suit is apparently barred by Section \ ^ Os-^^:^,. ^-. 27(4) ofthe Act, 1951. In support of his contention, reliance has been placed upon the Division Benchjudgment ofMP High Court in case of Temple Achaleshwar v. Achaleshwar Public Tmst. 7. On the other hand, Shri Sanjay K Agrawal, leamed counsel appearing for the respondent would submit that non applicanVrespondent has filed the Civil Suit for declaration that the resolutions passed by the applicants/defendants is illegal, bad in law and against the Bye Laws ofnon applicant. It is well settled law that suit for declaration of resolutions passed by the tmstee of public trust in its meetings as illegal and void, are outside the scope of Section 92 of CPC. A litigant having a grievance of a civil nature has a right to institute acivil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. By placing reliance upon the judgment of Supreme Court in case of Swami Parmatmanand Saraswati v. Ramji Tripathi, he would further submit that when the right to the office of a fa-ustee is asserted or denied and the relief asked for on that basis, the suit falls outside Section 92 of CPC. There is no reason to think that whenever a suit is brought by two or more persons under Section 92 of CPC, the suit is to vindicate the right of the public. So far valuation is concemed, he would submit that the same is yet to be decided by the court below and for that issues have already been framed and the challenge is premature. '1999(1)JLJ-74 21974 (2) SCC 695 't^ ^^^' ^r.* 8. I have heard the counsel appearing for the parties anijl pemsed-fhe order impugned. 9. The core question involved in the instant revision for decision making is whether the suit as framed is maintainable in the Civil Coiirt in view of specific bar created by' Section 27(4) of the Act, 1951. 10. Section 92 ofCPC is reproduced below: "92. Public charities. (1) In the case of any alleged breach of any express or constmctive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the admmistration of any such trust, the Advocate-General, or two or more persons having an interest in the trost and having obtained the '[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 behalfby the State G.ovemment within the local limits of whose jurisdiction the whole or any part of the subject-matter ofthe trust is situate to obtain a decree,- (a) removing any trustee; (b) appointing a new tmstee; (c) vesting any property in a trustee; (cc) directing a to-ustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any tmst property in his possession to the person entitled to the possession ofsuch propert}']; (d) directmg accounts and inquires; (e) declaring what proponion of the tmst property or of the interest therein shall be allocated to any particular object ofthe tTUSt; (f) authorizing the whole or any part of the trust propeny to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature ofthe case may reqmre. (2) Save as provided by fhe 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 claimmg any ofthe 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 ofthat sub-section. . [(3) The Court may alter the original purposes ofan 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 ofthe tmst, 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 fhe trust; (b) where the original purposes of the trust provide a use for a part only ofthe property available by virtue ofthe trust; or (c) where the property available by virtue of the tmst and other propeny applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other piirpose, regard being had to the spirit of the tmst 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 piirposes, 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 commumty, 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 tmst, regard being had to the spirit ofthe tmst.]]" 11. , Under Section 26 ofthe Act, ifthe Registrar, on the application ofany person interested in the public tmst or otherwise is satisfied that - (a) the original object ofthe public tmst has failed; (b) the tmst property is not being properly managed or administered; or (c) the direction of the court is necessary for the administration ofthe public trust; he may after giving the working tmstee an opportunity to be heard direct such trustee to apply to court for directions within the time specified by the •<•>. /'i''.^" '•. '^ ei 6: .„-:-. I'l i%s^^ l :?.? t» ti ^^r.^' .,<sf Registrar, and ifthe tmstee so directed fails to make ^rTapplication as required, or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the court. 12. Under Section 27 (1) ofthe Act, 1951, oh receipt of such application, the court shall make or cause to be made such inquiry into the case as it deems fit and pass such orders thereon as it may consider appropriate. Under Section 27 (2) of the Act, 1951,the court shall among other powers, have power to make an order for (a) removing any tmstee (b) appointing a new ta-ustee (c) deGlaring what portion of the trust property or ofthe mterest therein shall be allocated to any particular object of the tmst (d) providing a scheme of management of the tmst property (e) directing how the funds of a public tmst whose original object has failed, shall be spent, having due regard to the original intention ofthe author ofthe tmst or the object for which fhe trost was created, and (f) issuing any directions as the nature ofthe case may require. As per Section 27(3) of the Act, any 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. Undisputedly, as per Section 27(4) ofthe Act, 1951, no suit relating to a public tmst under Section 92 ofthe Code ofCivil Procedure, 1908 (V of 1908), shall be entertained by any court on any matter in respect ofwhich an application can be made under Section 26. 13. In case of Temple Achaleshwar (Supra), the suit was filed by Temple Shri Achaleshwar through its Pujari and another against the temple .!-:. \ s'.- {'I v 3 %^s',/ v Shri Achaleshwar Public Trust through executive tmstee and others inter-alia on the allegations that the defendants had mismanaged the temple and were usurping the chadhotari amount. They were also neglecting the aims and object of the Trust. The defendants were causing damages to the Trust, hence it had become necessary to remove the management immediately. On these allegations 11 reliefs were claimed against the defendant. 14. The Division Bench, in the above case, havmg found; the suit was filed under Section 92 of CPC; the suit had been filed by the Temple Achaleshwar through Pujari and not by the Pujari in his personal capacity for a declaration of his rights, the reliefs sought in the plaint shows that the reliefare covered within the four comers ofprovisions of Section 26 of the Act, 1951, held that the suit is barred under Section 27 (4) ofthe Act, 1951. 15. According to ratio laid down by the Division Bench in the above referred case, "no suit can be filed with respect to a public tmst under Section 92 of CPC on a matter with respect to which an application can be made under Section 26 ofthe Act, 1951, and Section 26 ofthe Act is wide enough to embrace all matters relating to a public tmst . 16. The Supreme Court in case of Swami Parmatmanand Saraswati (Supra) has held in para 10 & 11 ofits judgment as under : "10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the coiirt is necessary for the administration of the tmst and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach oftmst is not substantiated or that the •ps'" '•^ ^^^-".K^' •z. ^•t^. w plaintiff had not made out a case for any direetiof^fey-ttle court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients ofa suit under Section 92 are made out,ifit is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights ofaay other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N. Shanmukham Chetty v. V.M. Govinda Chettyl, Tirumalai Devasthanams v. Udiqvar Krishnayya Shanbhaga^, Sugra Bibi v. jHazi Kummu Afi'ff3 and Mulla: Civil Procedure Code (13th edn.) Vol. 1, p. 400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why tmstees of public tmst of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office ofa trustee is asserted or denied and reliefasked for on that basis, the suit falls outside Section 92. 11. We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Tmst bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a fhird person or to assert the right of the public must be decided after taking into account the dominant purpose ofthe suit in the light ofthe allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose ofthe suit was to vindicate the individual right ofKrishnabodhashram to be the Shaflkaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the Tmst, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate-General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right ofthe public. As we said, it is the object or the purpose ofthe suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons." \ \ 17. On careful reading of provisions contained in Section 92 of CPC, Sections 26 & 27 of the Act, 1951, and the law laid down by the Supreme Court and Division Bench of MP High Court in the above referred cases, following proposition oflaw would emerge : "In order to attract bar ofSection 27 (4) ofthe Act, 1951, the tmst must be public tmst; suit must be filed under Section 92 of CPC on matter in respect of which an application can be made under Section 26 of the Act, 1951, and is filed as a representative of public for vindication ofpublic rights." 18. Now, coming to the facts ofthe present case, it is crystal clear that the relief claimed is to declare the resolution null and void by which the plaintiff was removed from tmsteeship and applicant No. 3 to 5 have been iaducted as its tmstee. Thus, the suit was not broyght by the plaintiffas representative ofpublic for vmdication ofpublic rights and the same is filed seeking declaration ofhis individual/personal rights. 19. By applying the proposition oflaw as referred hereinabove in the facts and circumstances of the present case, it cannot be said that suit is barred under Section 27 (4) ofthe Act, 1951, and the trial court has rightly held suit as maintamable on this count. 20. However, on the face ofplaint averments regarding valuation ofthe suit, the suit is triable by Civil Judge, Class II in terms of Section '6(a) 6f the MP Civil Court Act, 1958. Although, the court of District Judge is empowered to decide any suit or original proceeding without any restriction as regards its value. It simply means that the coiirt of ^ .^"^^'^ 10 District Judge is competent even to entertain and de' suit or proceeding, which a Civil Judge is competent to hear and decide but it will not do so simply because the law is that a suit or proceeding should be instituted in a court oflowest competentjurisdiction. 21. In view of above, the revision is allowed in part. The District Judge, Raigarh, is directed to pass appropriate order to transfer the case in the court of Civil Judge, Class II, having jurisdiction to hear and decide the matter in accordance with distribution memo. However, in the facts and circumstances ofthe case, there shall be no order as to costs. Sahu Sdi- N.K. Agarwal Judge