RSA No.1913 of 2009 ( 1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 15.7.2009 (i) RSA No. 1913 of 2009. Bhim Sain Wadhwa ......Appellant Versus Ashok and others .......Respondents (ii) RSA No.1914 of 2009. Bhim Sain Wadhwa .......Appellant Versus Rewari Educational Trust and others ......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Mahavir Sandhu, Advocate, for the appellant. Shri Jatinder Sharma, Advocate, for the caveator. HEMANT GUPTA, J. (Oral). This order shall dispose of RSA Nos. 1913 and 1914 of 2009. However, for facility of reference, facts are taken from RSA No. 1913 of 2009. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, holding that the present suit filed by the plaintiff is not maintainable in terms of RSA No.1913 of 2009 ( 2) Section 92 of the Code of Civil Procedure. One Thakar Dass,alleging himself to be the President of Rewari Branch of Parm Hans Swami Uma Bharti Mission, filed the present suit for declaration challenging sale deed dated 11.1.1991; 7.8.1991 and 15.12.1992 in respect of the land belonging to Swami Uma Bharti Public School Jhajjar Road, Rewari. Since the first Appellate Court has dismissed the suit for the reason that the same is not maintainable as the requirements of Section 92 of the Code of Civil Procedure are not complied with, the other facts are not necessary to be mentioned at this stage. The plaintiff claims to have been authorised to initiate legal proceedings vide resolution dated 24.3.1995. The learned trial Court, while discussing the locus-standi of the plaintiff recorded a finding that Shri K.D. Attri and Bhim Sain were not the members of the Executive Committee at the time of institution of the present suit in view of the order dated 15.9.1990. It was further held that at the time of filing of the present suit, both Thakar Dass, the original plaintiff and subsequently Bhim Sain, the successor of Thakar Dass, were not authorised by the Executive Committee of the Mission to file suit. The learned trial Court held that since the mission is being run at the whims and caprices of the founder, therefore, the plaintiff can very much challenge the act of the founder. The relevant finding recorded by the learned trial Court reads as under:- “Though in the year 1988-89 Shri Bhim Sain and Shri K.D. Attri had resigned from their post but they were again appointed as President and General Secretary on 27.7.1990 vide Resolution Ex. P5 passed by the Founder in exercise of her unlimited powers vested in her in RSA No.1913 of 2009 ( 3) pursuance of Memorandum of Associations of the Mission. So at the time of institution of the present suit by way of order dated 15.9.1990 Shri K.D. Attri and Bhim Sain were not the members of Executive Committee, though they had been running their parallel Executive Committee as is also clear from the proceedings of the meeting dated 6.4.1999 produced on record as Ex. D.2. In such circumstances, though at the time of filing of the present suit both Thakar Dass and subsequently Bhim Sain were not authorised by the Executive Committee of the Mission which was being run at whims and caprices of the Founder (Emphasis Supplied). Plaintiff can very much validly challenge such acts of Founder herself who was making the Mission hollow from within. In such circumstances Thakar Dass and Bhim Sain who were associated with the Mission since its inception and had interest in smooth function of the Mission and had started complaining of against the founder alongwith other members also, which had resulted into institution of a criminal proceedings under Section 420 of IPC though later on same was quashed for the time being by the order of the Hon'ble High Court produced on record as Ex. DX/3. had very locus standi to file the present suit. It has also been brought on record that a Special Leave Petition in the Hon'ble Apex Court has also been filed against he Order Ex.DZ/3, which is evident from PW.34 and 35. 42. In these circumstances wherein Founder and her associates themselves were misusing the property of the Mission of their own personal use, who would be entitled to sue or would come to the Court to redress the wrong done by the persons who themselves hold the power. Admittedly for non-joining of the Mission as a party to the suit, there is a technical flaw in the present RSA No.1913 of 2009 ( 4) case as Thakar Dass and subsequently Bhim Sain in their personal capacity cannot be held to be authorised by the Executive Committee of the Mission to institute a suit but in this backdrop when the persons who had to authorise for the purpose of institution of the suit on behalf of the Mission themselves are guilty then who would come to sue against them? (Emphasis Supplied) Admittedly, it would be such a person, who has interest in the smooth functioning of the Mission so as to protect its Aims and Objects.” A perusal of the aforesaid finding would show that Thakar Dass and Bhim Sain were not found authorised by the Executive Committee, to institute the suit. It has further been held that Thakar Dass and Bhim Sain are not authorised by the Executive Committee, even in their personal capacity to institute a suit, but still the trial Court returned a finding that the plaintiff has a locus standi to file the present suit. But in appeal, the learned first Appellate Court found that Bhim Sain has resigned from the membership of the mission on 1.10.1988 vide Exhibit D.1 and thereafter, the plaintiff had no concern with the Mission. The suit is filed on 22.5.1995. It was also found that it is not the case of the plaintiff that after 1.10.1988, he again became primary member of the Mission. The learned first Appellate Court also returned a finding that no permission was taken or granted by the trial Court as required under Section 92 CPC. It also held that it is not proved by the plaintiff that on the date of the filing of the suit, he was duly authorised by the Mission. After returning such finding, the learned first Appellate Court reversed the finding recorded by the learned trial Court on the issue of locus standi and dismissed the suit. Learned counsel for the appellant has vehemently argued that RSA No.1913 of 2009 ( 5) Thakar Dass was the President of the Society and, therefore, competent to file the suit to protect the property of the Trust. He relies upon Resolution dated 24.3.1995. Reliance is also placed upon Bishwanath and another v. Sri Thakur Radha Ballabhji and others, AIR 1967 SC 1044; Ram Pal Kanwal and others v. Swetamber Sthanic Jain Sabha, Faridkot (Regd.) and others, 1988(1) Recent Revenue Reports 102 (P&H) and Guru Nanak Education Trust (Regd.) and others v. Sh. Balbir Singh and others, 1995 PLJ 207. Having heard learned counsel for the appellant at some length, I do not find any merit in the present appeal. The suit has been initially filed by Thakar Dass in his individual capacity. He claimed himself to be the President of the Trust. Under Section 92 CPC, in a case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, a suit can be filed either by the Advocate General or two or more persons having an interest in the Trust and have obtaining the leave of the Court. In the present case, the suit has been filed by a single individual and that too, without obtaining leave of the Court. The plaintiff has alleged breach of the conditions of Trust by the founder of the Trust herself. Therefore, the provisions of Section 92 CPC are applicable with full force to the present suit. Such suit was required to be filed either by the Advocate General or by two or more persons, having an interest in the Trust. Since the suit has been filed by a sole plaintiff and that too without the leave of the Court, the present suit has rightly been found to be not RSA No.1913 of 2009 ( 6) maintainable. In Ram Pal Kanwal's case (supra), the suit was filed in the representative capacity under Order 1 Rule 8 CPC i.e., for the benefit of the General Public. Therefore, the ratio of the said judgment would not be applicable in the present case as a suit in representative capacity is by more than one person. The judgment in Bishwanath's case (supra), is again not helpful to the argument raised. It is a suit filed by an idol for declaration of its title. The Idol, as a juristic entity, filed the suit to claim ownership in itself. Therefore, it is not a suit claiming breach of Trust, falling within the ambit of Section 92 CPC. The judgment in Balbir Singh's case (supra), is again not helpful to the argument raised by the learned counsel for the appellant, for the reason that in the aforesaid case, there were more than one petitioner, who had filed the suit under Section 92 CPC. Consequently, I do not find any patent illegality or material irregularity in the finding recorded by the learned first Appellate Court or that the finding recorded gives rise to any substantial question of law in the present second appeals. Hence, the present appeal is dismissed. (Hemant Gupta) Judge 15-07-2009 ds