RSA No. 3949 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3949 of 2007 Decided on : 22-01-2009 Dera Baba Sheetal Puri and others ....Appellants VERSUS Vishwa Nath Puri ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Rajinder Goyal, Advocate for the appellants. MAHESH GROVER, J This appeal is directed against the judgment of the learned Trial Court dated 11.4.2005 and the First Appellate Court dated 5.9.2007. The plaintiffs-appellants filed a suit under Section 92 of the Code of Civil Procedure alleging that the respondent herein has no right or authority to manage the affairs of the Dera which are being mis-managed as no accounts were maintained and the premises are being used for illegal and unauthorised activities like drug trafficking etc. According to the appellant Dera Baba Sheetal Puri i.e. Plaintiff appellant no.1 controls and manages the agricultural and urban immovable property in Patti Afghan, Patti Kaisth, Patti Chaudhary, Bhaini Majra, Khurana & Kaithal town and the annual income from these properties is in lakhs. It was pleaded that the respondents have taken undue advantage of bad health of Mahant Sukhdev Puri in collusion with attesting witnesses and scribed and got registered a power of attorney in his favour and tried to withdraw Rs.16 lakhs which RSA No. 3949 of 2007 2 were deposited in the name of Dera on account of acquisition of land belonging to Dera which attempt was foiled by appellant-plaintiff no.3 by filing an application for injunction. Broadly, the allegations of mis- management were further magnified in the plaint. The respondent who appeared pursuant to the notice issued to them denied the allegations against them and pleaded that the suit under Section 92 CPC was not maintainable. It was pleaded that earlier Mahant Sukhdev Puri was managing the affairs of the Dera has lost his sight and got paralytic attack and he was unable to discharge his functions as a Mahant and accordingly he resigned from the Mahantship. Mahant Sukhdev Puri, worshipers of Samadh, Sadhu Samaj and the public of Kaithal appointed defendant-respondent as a Mahant on 13.9.98 and since then he has been carrying on the duties of Mahant to the satisfaction of all. The allegations of mis-management were denied. It was pleaded that the power of attorney executed on 24th May, 1998 was got cancelled by some influencial persons including appellant no.1 herein on 27.7.1998 but on the next date i.e. 28.7.1998 Mahant Sukhdev Puri again appointed respondent as his attorney. The parties went to trial on the following issues:- 1. Whether the plaintiff no.1 was being managed by Mahant Sukhdevpuri, who is now unable to control and manage the same and therefore, the plaintiff no.2 is entitled to succeed the Mahantship of plaintiff no.1. (Dera)? OPP. 2. Whether the defendant by making false claims to the Mahantship of plaintiff no.1 Dera is trying to grab the property of the Dera forcibly and illegally? OPP. 3. Whether the committee of the respectables may be appointed RSA No. 3949 of 2007 3 for managing the affairs of plaintiff no.1, thereby divesting the defendant of all the powers with direction to render the accounts, if so to what effect? OPP. 4. Whether the civil court has no jurisdiction to try the present suit? OPP. 5. Whether the suit is bad for want of notice? OPD. 6. Whether the suit is not maintainable? OPD. 7. Whether the defendant is de-jure and de-facto Mahant of plaintiff no.1 Dera and therefore, he is entitled to control and manage the affairs of plaintiff no.1 Dera? OPD. 8. Whether the defendant is entitled to special costs? OPD. 9. Relief. The Trial Court came to the conclusion that suit under Section 92 was maintainable but dismissed the suit. In appeal, the First Appellate Court came to the conclusion that suit under Section 92 was not maintainable and also affirmed the findings regarding their being no evidence qua allegations of mis-management. In Regular Second Appeal, learned counsel for the appellants contended that suit under Section 92 is maintainable and there was over- whelming evidence to show that Dera has been mis-managed. It is thus pleaded that findings of the First Appellate Court are erroneous and liable to be set aside. Section 92 CPC is extracted as under:- “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 RSA No. 3949 of 2007 4 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 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 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 inquiries; (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 RSA No. 3949 of 2007 5 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 the 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 of 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 RSA No. 3949 of 2007 6 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. ” In so far as the allegations of mis-management are concerned, there is no evidence led by the appellant to this effect. It was his categoric case that accounts were not maintained and the premises of Dera have been used for illegal and un-authorised activities like drug trafficking etc. A perusla of the impugned judgments shows that no such evidence has been adduced by the appellant rather it is contended before this Court that once the allegations are made, the respondent has to prove to the contrary. I am afraid such a proposition of law cannot be accepted. The plaintiff who comes to the Court has to rely and stand on his own legs. It is not expected that respondent would adduce evidence to satisfy the case of the plaintiff. In this view of the matter, there is no infirmity in the findings recorded by the First Appellate Court. Even if the argument of the learned counsel for the appellant is accepted that the suit under Section 92 CPC is maintainable yet considering the fact that there was no evidence regarding the allegations made in the suit, the suit necessarily had to fail presuming that the suit was considered to be an ordinary suit in the absence of any RSA No. 3949 of 2007 7 findings in support of the allegations. Dismissed. January 22 , 2009 (Mahesh Grover) rekha Judge