IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 6TH MAY 2010 / 16TH VAISAKHA 1932 FAO.No. 235 of 2009() --------------------- AGAINST THE ORDER DATED 10/09/2009 IN IA.2141/2009 IN OS.358/2009 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/RESPONDENT ----------------------------- VARGHESE PAUL,S/O.LATE P.GHEE VARGHESE MANOHAR HILL HOUSE, ERAYILKADAVU, KOTTAYAM. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S)/PETITIONERS: --------------- 1. BASELIUS MARTHOMA DIDYMUS-1 S/O LATE ITTY AVIRAH, CATHOLIC AND MALANKARA METROPOLITAN, MALANKARA ORTHADOX SYRIAN CHURCH, DEVALOKAM ARAMAN, MUTTAMBALAM VILLAGE REPRESENTED BY POWER OF ATTORNEY H.G.THOMAS MAR ATHANASIOUS METROPPOLITAN, BETHEL ARAMANA, CHENGANNUR DIOCESE CHENGANNUR. 2. FR.JOHN KONATTU,S/O.LATE FR.ABRAHAM KONATTU,PRIEST, TRUSTEE MALANKARA, ORTHADOX SYRIAN CHURCH, DEVALOKAM ARAMAN, MUTTAMBALAM VILLAGE. ADV. SRI.S.SREEKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/05/2010, ALONG WITH WPC NO. 2618 OF 2010 WPC NO. 2634 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ----------------------------------------------------------- FAO. No. 235 of 2009, & WP(C) Nos. 2618 & 2634 of 2010 ------------------------------------------------------------------ Dated this the 6th day of May, 2010 J U D G M E N T Pius C. Kuriakose, J. F.A.O.No.235/09 is directed against the order passed by the Principal Sub Court, Kottayam in I.A.2141/2009, an application for temporary injunction in O.S.No.358/2009. The appellant in the F.A.O. was the second defendant in the suit and the respondents in the F.A.O. are the plaintiffs/petitioners therein. W.P.(C) No.2618/ 2010 is directed against the order of the same Sub Court in I.A.No.2431/09 in the same suit. The prayer in the above interlocutory application was for a direction that certain documents seized by the Advocate Commissioner be returned to the petitioner and also for permitting the petitioner to break open the locker, almirah and safe, as the keys thereof are seized by the Commissioner. The writ petitioners are the petitioners in the interlocutory FAO. 235/09 etc. - 2 - application, who are defendants 1 and 2 in the suit and the respondents are the respondents in the interlocutory application, viz., the plaintiffs in the suit. W.P.(C) No.2634/2010 is directed against the order in I.A.No.2430/2009 in the same suit, which was an application for preliminary consideration of the question of maintainability of the suit, raised by the petitioners. The writ petitioners are the petitioners in the said application, viz., the defendants in the suit and the respondents are the plaintiffs in the suit. The learned Subordinate Judge disposed of all the three interlocutory applications by a common order and we feel that it will be convenient to dispose of the two Writ Petitions and the F.A.O. jointly. The parties will be referred to as they were before the trial court. 2. The suit, O.S.358/2009 was filed by the plaintiffs, seeking a decree directing preparation of a scheme for the FAO. 235/09 etc. - 3 - management and administration of the first defendant, a Trust incorporated in the year 1964, under the name Manohar Hills Charitable Trust. The material averments in the suit are that in the year 1975, the first plaintiff became the Trustee and the Chairman of the Trust and President of the governing body of the Hospital, viz., M.G.D.M. Hospital, Kangazha. It is averred that the second plaintiff is the priestly trustee of the Malankara Church, with whom the management and administration of the above hospital of the first defendant is vested. I.A.No.2141/09 was filed by the plaintiffs seeking an injunction, restraining the defendants from alienating the plaint schedule properties or creating any charge thereupon and from inducting strangers into the plaint schedule properties. Along with the plaint, the plaintiffs produced the Trust Deed, which was provisionally marked as Ext.A1. Ext.A1 Trust Deed is dated 6.7.2004. The aims and objects of the Trust, as incorporated in Ext.A1 FAO. 235/09 etc. - 4 - were to establish and run hospitals and other institutions rendering medical aid, grant donations and other kinds of financial and medical assistance to orphanages, poor houses and other institutions engaged in giving relief to poor and disabled persons. The averments in the plaint are to the effect that in furtherance of the objectives of the Trust, the first defendant Trust started a hospital, viz., Mar Gee Varghese Dionysius Memorial Hospital, Kangazha (M.G.D.M. Hospital, for short), in 1964. The plaint alleged that the second defendant in the suit was mismanaging the Trust and was taking steps to take loans by mortgaging the Trust properties and also by leasing out them on long term basis. It was on the above allegation that temporary injunction was sought for, as per I.A.No.2141/09. The second defendant/appellant in F.A.O.No.235/09 filed a counter affidavit on the reason that he was largely handicapped from filing a detailed counter affidavit, as the relevant FAO. 235/09 etc. - 5 - documents were seized by the Advocate Commissioner appointed by the court and are presently kept under lock and key. One of the contentions raised in the counter affidavit was that the suit as framed was not maintainable, in as much as, the first defendant Trust was not a private Trust, but was a public charitable Trust. It was further contended that the suit invoking Order I Rule 8 Civil Procedure Code was not maintainable and hence the question of maintainability of the suit was to be decided as a preliminary issue in the suit. As regards the allegation of alienation and encumbering, it was averred that being the Managing Trustee of the first defendant, it is not possible to alienate or encumber the property on his own volition. 3. The court below, on considering the pleadings and the materials which were placed on record by the parties as well as the submissions addressed at the Bar, came to the conclusion that the first defendant Trust cannot be termed FAO. 235/09 etc. - 6 - as a public Trust. It is essentially on the basis of the above conclusion that the court below went on to allow the application for temporary injunction and therefore, in F.A.O.No.235/09, most of the grounds raised are challenging the finding that the first defendant Trust is not a public trust, but is only a private Trust. Inter alia, it is urged in the F.A.O. that the trial court lost sight of the fact that the Trust was formed in the year 1964 with the main objective of rendering assistance to the poor and the needy. In the light of the admission of the plaintiffs in the plaint that their interference in the Trust was only in the year 1975, the court below should not have held that the beneficiaries of the Trust were only those who have the patronage of the plaintiffs. 4. It is urged that it is admitted in the plaint that the objectives of the Trust were not intended to be given to any particular class, which could be segregated from the public FAO. 235/09 etc. - 7 - at large. Hence, there is no warrant for the finding that the Trust is a private one and not a public one. 5. It is highlighted that Ext.A1 Trust Deed does not speak of any particular class of beneficiaries and therefore, the court below should have inferred that the Trust was a public Trust and that the suit could be maintained only on the basis of leave granted under Section 92 of the Civil Procedure Code. 6. Coming to the merits of the order of injunction, it is urged that the court below should have permitted the defendants to peruse the records in the office of the Trust for the purpose of filing a detailed counter affidavit and enabled the filing of a detailed counter affidavit and that the essential conditions for grant of temporary injunctions, viz., prima facie case, irreparable injury and the balance of convenience were not properly considered or decided. 7. Lastly, it is urged that in view of the obvious FAO. 235/09 etc. - 8 - position that no Trust property could be alienated or encumbered by the Managing Trustee alone, the injunction sought for should not have been granted. 8. In W.P.(C) No.2618/2010, directed against the order in I.A.2431/09, it is urged that the court below failed to look into the contrasting disparity in the affidavit and the petition. It is urged that the Commissioner transgressed the limits of the commission warrant given to him . It is urged that the respondents in the interlocutory application purposely played fraud on the court by seeking relief in the petition, not founded on the averments in the affidavit in support thereof. It is urged that the observation of the court that the facts and circumstances as disclosed from the records and pleadings indicate maladministration prima facie, is mere surmise. Ext.P1 produced in this Writ Petition is a copy of the commission application, I.A.No.2142/2009. Ext.P2 is a copy of the report dated 29.7.2009 submitted by FAO. 235/09 etc. - 9 - the Commissioner and Ext.P3 is a copy of I.A.No.2431/2009, filed by the petitioners. Ext.P4 is the common order passed by the learned Sub Judge in the three interlocutory applications. 9. The document, Ext.P1 produced in W.P.(C) No.2634/2010 is a copy of I.A.No.2430/2009. Ext.P2 is a copy of the counter affidavit filed by the petitioners, to the injunction petition, raising the question of maintainability of the suit. Ext.P3 is a copy of the common order passed by the court. 10. The grounds urged mainly in the Writ Petition are that the finding of the court below on the question of maintainability of the suit is wrong and that the court below did not properly understand that Ext.P1 application was filed by the petitioners for setting at naught the possible argument to shelve the question of maintainability at a later stage of the suit. It is alleged that the court below thought FAO. 235/09 etc. - 10 - that the question of maintainability of the suit has a vital bearing on the disposal of the injunction application and the application for return of documents. Yet erroneously that the question of maintainability is considered in Ext.P1 application. It is urged that what the court below should have allowed Ext.P1 first and then proceeded to deal with the other two interlocutory applications. 11. Very extensive submissions were addressed before us by the learned counsel for the parties, viz., Sri.R.D.Shenoy, Senior Advocate for the appellant/writ petitioners and Sri.S.Sreekumar, Advocate, for the respondents. The submissions of the learned counsel were founded on the basis of the grounds raised in the memorandum of appeal as well as in the Writ Petitions. Our attention was drawn by the learned counsel to the various materials, which were placed on record by the parties before the court below and particularly to the plaint, Ext.A1 Trust FAO. 235/09 etc. - 11 - Deed and Ext.A4 constitution and functions of the Governing Board of the Hospital. The learned counsel relied on a large number of judicial precedents in support of the propositions advanced by them. Strong reliance was placed by Sri.R.D.Shenoy, on the judgment of the Supreme Court in R.M.Narayana Chettiar v. N.Lakshmanan Chettiar (AIR 1991 SC 221). The learned counsel argued on the strength of the above decision that the court which is considering the question whether the suit is one which falls within the ambit of Section 92 of the Civil Procedure Code is expected to look into the allegations in the plaint. The learned Senior counsel argued that this is a case where it has been expressly stated in the plaint that the recitals in Ext.A1 Trust Deed which is significantly produced along with the plaint itself, ought to be read as part of the plaint itself. Reference was made by the learned senior counsel to paragraph 2 of the plaint. The learned senior counsel also FAO. 235/09 etc. - 12 - referred to all the averments in the plaint and particularly in pagraph 5 of the plaint, wherein, it is stated that the M.G.D.M. Hospital was started as part of the charitable objectives of the Trust and with the object of rendering medical aid to the poor and the needy. Sri.Shenoy submitted that the finding of the court below that the Trust is a private Trust is totally fallacious. According to him, such a finding has been entered mainly on the basis of Ext.A4 constitution and functions of the Governing Board of the Hospital. A4 was brought into existence only in 1975. The Trust, on the contrary was born 11 years earlier and the suit is in respect of that Trust. The question whether that Trust is a public Trust or a private Trust, cannot be decided on the basis of an arrangement introduced 11 years after its birth. 12. Sri.R.D.Shenoy placed reliance also on the judgment of the Supreme Court in Vidyodaya Trust v. FAO. 235/09 etc. - 13 - Mohan Prasad [2008(2) KLT 68 (SC)] (A decision which interestingly was relied on by Adv.Sri.S.Sreekumar also). Sri.Shenoy submitted on the basis of the above decision that the question to be considered is whether the suit was instituted for vindicating public rights or purely private rights. The averments in the plaint will reveal that when the purpose of the suit is vindication of public rights, then it will have to be found that sub section 1 of Section 92 of the Civil Procedure Code will be attracted. The learned senior counsel submitted that what was important to be considered is not just the relief portion of the plaint, but the entire averments in the plaint for finding out whether it is a public right that is sought to be vindicated. Sri.R.D.Shenoy relied also on the judgment of the Supreme Court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141). The learned counsel submitted that in the first instance, it is only the allegations in the plaint that are to be FAO. 235/09 etc. - 14 - looked into for deciding whether the suit falls within the ambit of Section 92. Particular reliance was made by the learned senior counsel on paragraph 10 of the above judgment. 13. Sri.R.D.Shenoy relied also on the judgment of the Supreme Court in Deoki Nandan v. Murlidhar (AIR 1957 SC 133), for the purpose of expatiating his arguments on the question of distinction between a public Trust and a private Trust. He argued that the distinction between a private Trust and a public Trust is that in the former, the beneficiaries are specific individuals, whereas, in the latter, they are general public or a class thereof. In the former, the beneficiaries are persons who are ascertained or capable of being ascertained and in the latter, they constitute a body which is not capable of ascertainment. The learned senior counsel referred to Lewin on Trusts (18th Edition page 22, caption-Public and private trusts). Reliance was placed by FAO. 235/09 etc. - 15 - Sri.Shenoy also on the judgment of the Division Bench of this Court in Thomas v. State of Kerala (2008(1) KLT 363). Referring to the above judgment, the learned senior counsel submitted that the distinction between private and public Trust is that where beneficiaries of the Trust are not individuals or ascertained individuals or family members but are unascertained members of Christian faith as well as members belonging to public, it is public trust. 14. Sri.Shenoy relied also on the judgment of the Travancore-Cochin High Court in Mathevan v. Muthia (AIR 1952 Travancore-Cochin 323) and argued that the essential feature of a public trust is that the endowment must be for a public purpose of a charitable or religious nature and that the beneficial interest in the trust must be vested in the public in general or in a considerable section of the public. 15. Adv.Sri.S.Sreekumar, learned counsel for the respondents would put up a very spirited and sustained FAO. 235/09 etc. - 16 - defence of the impugned orders. As regards the orders which were challenged in the Writ Petitions, he submitted that the jurisdiction of this Court under Article 227 was a visitorial jurisdiction, which is not expected to be invoked for correcting each and every mistake. According to him, there is no justification for interfering with the orders challenged in the Writ Petitions. The order challenged in the F.A.O. also, according to him, did not suffer from any infirmity. Mr.Sreekumar would place reliance on a large number of decisions, including certain decisions, which were cited before us by Sri.R.D.Shenoy. Sri.Sreekumar relied on paragraph 10 of the judgment of the Supreme Court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141). The learned counsel submitted that 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 Section 92. It is not every suit FAO. 235/09 etc. - 17 - 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. 16. Sri.S.Sreekumar relied on the judgment of the Supreme Court in Vidyodaya Trust v. Mohan Prasad (supra) and submitted that when on a perusal of the pleadings it becomes clear that the persons are highlighting private grievances and not any public grievances, it has to be found that the suit does not fall within the ambit of Section 92 of the Civil Procedure Code. Sri.S.Sreekumar placed reliance on the judgment of the Travancore - Cochin High Court in Ananda Theertha v. Kumaraswami (AIR FAO. 235/09 etc. - 18 - 1592 Travancore-Cochin 134). It was the following ratio in the above decision that was relied on by him : “The fact that anybody was at liberty to go at any time to the Math (which was charitable or religious institution) to worship the Swami and take food there, plainly establishes that the trust was one for public purposes”. The following ratio of the above decision was also relied on by him: “A suit under S.92 is a representative suit and if properly conducted, the decision would bind all persons who have some interest in the matter in common with the plaintiffs on record even though they are not 'eo nomine' parties to the suit.” Mr.Sreekumar relied on the judgment of the Supreme Court in R.M.Narayana Chettiar v. Lakshmanan Chettiar (AIR 1991 SC 221). It was the following passage for the above decision, which is a quotation from another judgment of the Supreme Court in Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai (AIR 1952 SC 143), that was highlighted by him : FAO. 235/09 etc. - 19 - “ A suit under Section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions of the court are necessary. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of Section 92, Civil Procedure Code...” 17. Mr.Sreekumar relied on the judgment of the Supreme Court in Bala Shankar Maha Shanker Bhattjee v. Charity Commissioner, Gujarat State (1995 Suppl. (1) SCC 485). He relied on paragraphs 8, 9 and 10 of this judgment. In paragraph 8, Black's Law Dictionary, 6th Edition, the definition of “public trust” is reproduced as follows : “Public trust” means one constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description; public trusts and charitable trusts may be considered in general as synonymous expressions”. “Charitable trust” is defined as follows : FAO. 235/09 etc. - 20 - “Trusts designed for the benefit of a class or the public generally. They are essentially different from private trusts in that the beneficiaries are uncertain. In general, such must be created for charitable, educational, religious or scientific purposes.” The judgment extracts the definition of public and private trust in P.Ramanatha Aiyar's 'The Law Lexicon' as follows :- “In the case of a temple an idol publicly constituted and publicly accessible in which the appearance may be what one may describe as ambiguous, one would expect and ought to insist upon clear evidence of permission given or licence given and permission withheld because it is equally true that a private individual may construct, out of his private purse a private temple and idol retaining the control and management in his own hands and that of his family or some other selected individuals and yet so conduct himself as to provide conclusive evidence of dedication by implication and by conduct.” The judgment lays down that a useful test, for a Judge to apply to see whether the evidence satisfies the conditions of the private trust, is to ask himself whether any of the acts testified to by the witnesses could have been prevented or penalised by proceedings for trespass. In private trust the beneficial interest is vested absolutely in one or more FAO. 235/09 etc. - 21 - individuals who are, or within a given time, may be definitely ascertained. On the other hand public trust has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement of a private trust. 18. In the said decision, relying on the judgment of the Supreme Court in Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas [(AIR 1970 SC 2025), it is stated that for construing whether a temple is a public trust or private trust, the following tests can be taken : “(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right? (3) Are the temple expenses met from the contributions made by the public? (4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples? FAO. 235/09 etc. - 22 - (5) Have the management as well as the devotees been treating that temple as a public temple?” 19. Mr.Sreekumar relied on the judgment of the Supreme Court in Kuldip Chand v. Advocate General to Government of Himachal Pradesh [(2003) 5 SCC 46)]. It was submitted on the basis of the above decision that the following tests are sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the use of the temple by members of the public is as of right. (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large. (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive FAO. 235/09 etc. - 23 - properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation