ri,..- .... `.. THE HIGH COURT OF SIKKIM : GANGTOK WRIT PETITION (a) NO. 5 0F ZOOS @` In the matter of an application under Articles 226 and 227 of the Constitution of India read with section 115 of the Code of Civil Procedure,1908. Tshurphu Labrang, through its General Secretary (Zhanag Zodpa) Dharma Chakra Centre, Rumtek, East Sikkin .... Petitioner VERSUS 1. Karmapa charitable Trust, A Public Religious and Charitable Trust, AIlegedly having its Head Office at the Dharma Chakra Centre, Runtek, East Sikkim. Shri T. S. Gyaltsen, S/o late Kazi Kesang, R/ o Trateng Villa, Gangtok -737101, East Sikkim. 3. Kunzig shanar Rinpoche, S/o late Thinley DOH.ee, R/o KIBI, 8-19/20, Qutab Instituional Area, New Delhi -110 016. 4. Shri Gyan Jyoti Kansakar, S/o late Shambhu Karpro, R/ o Kwapukhu, Thahity, Kathmandu, Nepal. 5. State of sikkim, through Chief Secretary, Tashiling S e cretariat, Gangtok -737101, East Sikkim. 6. The secretary, Eccle siastical Affairs, Government of Sikkim, Gangtok -737101, East Sikkim. 7. Goshir Gyaltsab Rinpoche, Tibetan Monk, R/o Dharma Chakra Centre, P.0. Rumtek Monastery, East Sikkim -737 135. 8. Shri J. T. Densapa, S/o late T. D. Densapa, R/o Burmiok House, Development Area, Gangtok -737101, East Sikfro. For the petitioner .... Respondents .... Ex-paste Respondents : Mr. Sudarshan K. Misra, Sr. Advocate, Mr. Naresh Sahai Mathur and Mr. Bhaskar Raj Pradhan, Advocates. For respondent Nos.1 to 4 : Mr. Asok De, Sr. Advocate, Mr. S. Roychaudhuri, Mr. A. K. Bhaittacharya and Mr. S. Hamal, Advocates. For respondent Nos.5 & 6 : Mr. S. P. Wangdi, Advocate General with Mr. Karma Thinlay, Asstt. Govt. Advocate. For respondent No.7 : Mr. D. K. Thakur, Mr. A. Prasad and Mr. N. Rai, Advocates assisted by Ms. Jyoti Kharka, Advocate. For respondent No.8 : None for respondent No.8. pr DATE OF JruDGMENT : 26TH AUGUST, 2003. JUDGMENT R. K. PATRA. C... Is the learned District Judge justified in law in rejecting the prayer of the petitioner for its impleadment as a defendant in the pending suit? This is the short question that arises for consideration in this composite application made under Articles 226 and 227 of the Constitution of India read with section 115 of the Code of Civil Procedure, 1908. 2. The respondents 1 to 4 have instituted Civil Suit No. 40 of 1998 on the file of the learned District Judge (East & North) Sikkim at Gangtok against the respondents 5 to 7. Their case in the plaint is as follows:- In the year 1959, His Holiness Ranjung Rigpae Dolje, the 16th Gyalwa Karmapa being accompanied by nearly 300 high lamas, monks and lay followers calne from Tibet and settled at Rumtek in East District of Sikkim. The then Chogyal of Sikkim Sir Tashi Namgyal offered him 74 acres of land in perpetuity for the construction of the monastic centre which is now known as the Dharma Chakra Centre. pr i. riprv While coming to Sikkim, the Karmapa brought with him precious and sacred relics, ritual items, icons, paintings etc. which have been preserved in the monastery at Rumtek. The most precious and invaluable religious symbol of the Karmapa is the Black Hat which was also preserved in the monastery till 1992. Since 1959, besides the monks of Tibetan origin, a number of individuals from Sikhim and outside have joined the Dharma Chakra Centre as students, disciples and devotees of Karmapa. On 6th November,1981, the 16th Karmapa expired. Before his death, he established a public religious and charitable Trust called Karmapa Charitable Trust for the purposes mentioned in the trust deed dated 23rd August,1961. Under the said deed, the 16th Karmapa was the sole trustee during his life-time. Following the death of the 16th Kannapa, in terms of the trust deed respondents 2 to 4 took charge of the properties and affairs of the Dharma Chakra Centre. As per the trust deed, they are under legal obligation to continue to hold charge of the entire properties of the tmst until the 17th Karmapa attains the age of 21 at which point of time he (17th Karmapa) shall become the sole trustee once again and the trustees discharging their obligation under the tnist deed shall automatically become Jitnchts o/Tict.o. The respondents 2 to 4 in their capacity as the duly appointed trustees of the Karmapa Charitable Trust are the sole, absolute and * t+`, exclusive legal authority of the trust thawing stepped into shoes of the deceased 16th Karmapa) which has vested in them on their assumption of the office of trustees. The corpus of the trust which vested in them, inter aziq includes the movable and immovable properties as mentioned in Scheduled "A" and "8" of the plaint (hereinafter referred to as the suit property). The respondents 2 to 4 as the duly appointed trustees also moved the learned District Judge in Civil Misc. Case No. 30 of 1985 for grant of succession certificate in their favour. The learned District Judge after issuing notice to the parties concerned as well as to the general public by order dated loth March, 1986 allowed the prayer for grant of succession certificate in their favour. While the matter stood thus the state government of Sikkim through its officers respondents 5 and 6 under the pretext of maintaining law and order within the premises of the Dharma Chakra Centre deployed massive police force on 2nd August, 1993 with a view to interfere with the rights, duties and obligations of the respondents 2 to 4. The illegal and arbitrary action made on 2nd August, 1993 was the result of collusion and covert acts of the respondents 5 to 7. On that day, i.e., 2nd August, 1993, respondent 7 with the connivance of respondents 5 and 7 invited large number of lay people from Gangtok and other places into the courtyard of the monastery and terTorised and harassed the legitimate { in monks/beneficiaries of the Dharma Chakra Centre. The unruly mob resorted to violence on account of which a number of monks/beneficiaries were injured and extensive damage to the monastery was also caused. Although police officials were present within the monastery, no action was taken against the culprits who indulged in violence. The then Home Secretary ordered confiscation of the main key of the principal shrine hall of the monastery which was promptly carded out by the police and officers present there. After illegal confiscation of the key, the police and supporters of respondent 7 launched illegal eviction of monks/beneficiaries from their respective homes, quarters located within the premises of the Dhamia Chakra Centre. Taking advantage of indiscriminate arrest and detention of the innocent monks/beneficiaries, the officers of State Government seized an opportunity to open the principal shrine hall of the monastery. Ever since the fateful day of 2nd August, 1993, the entire premises of the Dharma Chakra Centre including the main monastery, personal residence of the Karmapa are under illegal/unlawful possession of respondent 7 held through respondents 5 and 6. As a result of this, it has become impossible for the respondents 2 to 4 to enter into the premises and discharge their lawful duties as trustees and their obligations towards the beneficiaries of the trust. On the basis of the above averments, the respondents 1 to 4 have sought for an order of eviction of all the encroachers inducted by respondent 7 from the suit property, rooms, quarters, houses of the Dharma Chakra Centre and restoration of the same including the main key of the principal shrine hall to them (respondents 1 to 4) and for a decree that the respondents I to 4 are alone entitled to possess and administer the suit property. 3. Before examining the main question involved in this application, we may rirst consider a preliminary point as to whether this Court in exercise of its revisional power under section 115 C.P.C. can interfere with the impugned order by which the learned trial Judge rejected the petitioner's prayer for impleadment as a defendant in the suit. Section 115(1) C.P.C. as now stands after the coming into force of Amendment Act 46 of 1999 reads as follows:- "115. Revision (1) The High court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or f ;.` v` (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:- PROVIDED that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings." From the aforesaid, it may be seen that the effect of proviso is that the order impugned in revision must not only suffer from some jurisdictional error but also it has to fulfil the condition laid down in the proviso i.e. in case the impugned order is set aside it must result in final disposal of the suit or other proceedings. It is not the case of the petitioner that if the impugned order had been made in its favour it would have resulted in final disposal of the suit or any other proceedings. In view of this, we have no hesitation to hold that the petitioner's application purported to be under section 115 C.P.C. is hit by the proviso of sub- section (1) and, therefore, the same is liable to dismissed. 4. +to The learned trial Judge after considering the submissions of both parties rejected the petitioner's prayer by holding as follows :- "9 ...................... However, Court cannot allow such petition if the lntervenor falls to show that its interest is involved in the Suit. The case at hand has been filed by the majority of the Trustees of the Karmapa Charitable Trust and the suit is basically for eviction, possession and maintenance of the properties mentioned in schedule to the plaint. 10. As per the contention of the Intervener itself that Tshurphu Labrang connotes multifaceted sister Committees with series of members in each of the committees. If this proposition is to be accepted then all those members of sister committees would also become necessary parties in the present suit. And in case the Intervenor is allowed to participate in the suit there will be further applications from other sister committees. As already observed that the instant suit has been filed by the plaintiffs where in majority of the Trustees are parties who will sufficiently represent the case of the Intervener as the Intervener (if exists) comes within the umbrella of Karmapa Charitable Trust.» 5. Shri Misra learned Senior counsel contended that the petitioner is a necessary party in the suit. By referring to paragraphs 2, 8, 9 and 10 of the plaint as well as to the trust deed dated 23rd August,1961, he ridiculed the claim of the plaintiffs that following the death of 16th Karmapa the suit property vested with them. According to Shri Misra, the corpus of the tmst was only a sum of Rs.2,51,473.64 out of which its (petitioner's) contribution is Rs.1,03,505.68 and vesting, if any, was in respect of the aforesaid amount. He also contended that there is conflict of interest between the petitioner and the plaintiffs t.riasmt/ch as the case of former i..:, `~ ®.. pr 10 is that it being the corporation of the line of incarnations of a Lama whose properties became its property and it has been manactng and administering the suit property and other assets of the Karmapa Charitable Trust. In this connection, he has also referred to some averments made by respondent 7 (defendant 3) in his whtten statement that it toetitioner) is the true and real owner of the suit property which has been in its possession. Learned counsel for the petitioner by referring to the 54th Report of the Law Commission also submitted that in case this Court does not invoke revisional jurisdiction under section 115 CPC, it can interfere with the impugned order in exercise of its power under Article 227 of the Constitution. Learned Advocate General appearing for respondents 5 and 6 (defendants 1 and 2) submitted that the petitioner's presence in the suit is necessary in view of averments made in paragraphs 16 and 17 (page 11) and concluding paragrapb of 8 (page 70) of the written statement filed by the respondent 7 (defendant 3) wherein it has been stated, inter azfa, that the power and control of the suit property vests with the petitioner and it has been in its possession. Shri De, 1eamed Senior counsel for respondents 1 to 4 (plaintiffs) contended that the impugned order being a judicial order passed by subordinate Court cannot be 11 interfered with in exercise of writ ].urisdiction under Article 226 but the validity of the said order can be tested within the parameters of Article 227 of the Constitution of India but the impugned order does not suffer from any such infirmity to be upset by this Court under Article 227. His submission is that the petitioner is a busy body and wants to project and get declared one Ugen Trinley Dolje as the 17th Karmapa. If the prayer of the petitioner is allowed, it would enlarge the scope of the suit incrsmt/ch as an extraneous issue as to who is the 17th Karmapa would come for decision in the suit which has been filed for a limited purpose of eviction of the encroachers and recovery of possession of the suit property and the right to possess and administer of Dhamia Chakra Centre till the 17th Karmapa is reincarnated or attains the age of 21 years. In this connection, Shri De brought to our notice the order dated 17th October, 2001 and order dated 7th August, 2002 passed by the learned trial Judge and contended that those orders have become final which have direct bearing on the present issue which is being considered in this application. He disputed the submission of learned counsel for the petitioner that the corpus of the trust is only a sum of Rs.2,51,473.64. Mr. De by referring to clause 4 of the tmst deed which stipulates the trustee can receive donations and settlements from other donors, submitted that the corpus of the trust is pr 12 not confined to the aforesaid amount of Rs.2,51,473.64 but also donations and settlements received and receivable by the trustee. 6. Let us first examine the cases cited on behalf of the petitioner. :ivLh /I/ Anon vs. Raphael Tuck & Sons Ltd., (1956) ALL E.R. 273 (290). The facts of the case reveal that in an action the plaintiff claimed damages against the defendants and injunction to restrain them from disclosing to other persons or making use of the information disclosed by the plaintiff. The allegation of the plaintiff was that he was the inventor of an adhesive dispenser in the fomi of a pen, known as "Fastik pen" and he approached the defendants to market the said pen and in course of negotiation disclosed the "know-how" of the pen. The negotiation, however, failed although there was an implied contract that the defendants would treat the information regarding "know-how» of the pen as confidential. In breach of that contract the defendants manufactured an adhesive dispenser called "Stixit pen" which contained three distinctive features of the "Fastik pen". On the basis of the aforesaid allegations the plaintiff claim damages. The defendants before submitting defence applied under R.S.C. Order 16 Rule 11 (a portion of which is in pari materia with Order 1 Rule 10(2) CPC) to join one 13 Dachinger on the ground that he was the inventor of the "Stixit pen", who was their employee and aLssisting them in marketing the pen. The Court allowed the prayer of intervention by applying the test : "May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?" The Court further observed: - " ................. Likewise, a defendant who seeks to join `another defendant does not inevitably have to show that the new defendant will be directly affected by an order in the action as it is constituted. He may succeed if he can show that he cannot effectually set up a defence which he desires to set up unless the new defendant is joined with it, or unless the order made binds the new defendant. It is not that the construction of the rule differs according to circumstances. The construction of the rule is, and must be, the same in all circumstances; but the test that is appropriate to detemine whether a party is necessary or not may vary according to the circumstances. " F`rom the facts mentioned above, it may be seen that since Dachinger claimed to be the inventor of the "Stixit pen" he was a necessary party and without him, no effective decree could have been passed in the action commenced by the plaintiff. pr /ZZ/ Razia Begun vs. Sahebzadi Anwar Begum, AIR 1958 SC 886. It was a case in which the plaintiff ffled the suit against the second son of Nizam of HyderaLbad (Prince) 14 alleging that she was the lawfully married wife of the Piince and in that capacity was entitled to payment of monthly allowance of Rs.2,000/-which had been denied. The Prince filed written statement admitting the entire claim of the plaintiff. An application under Order 1 Rule 10(2) CPC was fiiled by Sahebzadi Anwar Begun claining to be the lawful and legally wedded wife of the ELnce. She fuither alleged that the suit was a collusive one between the plaintiff and the Prince. The prayer for impleadment was allowed by the trial Court which came to be confirmed by the Supreme Court. The facts of that case are distinguishable z.masmz/ch it was a suit for declaration of the status and the result of declaratory decree would have definitely affected Sahebzadi Anwar Begum. Therefore, in the circumstances, the presence of Sahebzadi Anwar Begum was held to be necessary for effectual and complete adjudication of the controversy. /!!t/ Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524. In the above case, the appellant Ramesh was in possession of the service station erected on the land held by Hindustan Petroleum Corporation Limited as lessee. The service station consisted of a petrol pump in the ground floor and a stmcture with an open terrace for parking of vehicles. The T+VLV I,.. in 15 Bombay Municipal Corporation issued notice to the appellant Ramesh for demolition of two chattels on the terrace on the ground that they were unauthorised constructions. The appellant Ramesh filed the suit challenging the validity of the notice and for injunction restraining the Bombay Municipal Corporation from demolishing the two chattels. The Hindustan Petroleum Corporation applied for being impleaded as defendant in the suit on the plea that it had materials to show that the construction made by the plaintiff was unauthorised. The prayer for impleadment was allowed by the trial Judge which was challenged by the appellant Ramesh in the High Court by way of writ petition but without any success. Thereafter, he filed the appeal before the Supreme Court which set aside the orders passed by the trial Judge and the High Court and rejected the prayer for impleadment. While doing so, the Supreme Court observed as follows:- "18. The courts below have assumed that the subject matter of the litigation is the structure erected by the respondent or in other words the service station which has been allowed to be operated upon by the plaintiff under the terms of the dealership agreement. The notice does not relate to that structure but is in relation to the two chattels stated to have been erected by the present appellant unauthorisedly. According to the appellant these chattels/structures are movables on wheels and plates where servicing and/or repairs are done and used for storing implements of the mechanics. Respondent 2 has no interest in these chattels and the demolition of pr 16 the same in pursuance to the notice is not a matter which affects the legal rights of the respondent. The courts below. therefore. £alled to note that respondent 2 has no direct interest in the__subject matter of the litigation and the addition of the respondent would result in causing serious prejudice to the anoellant and the substitution or the addition of a new cause of action would onlv widen the issue which is rec]uired to be ad_iudicated and settled. The 1.oiriing of the Dartv would embarrass the Plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the bower under the rule in such cases." [emphasis supplied] From the above, it would appear that this case is of no assistance to the petitioner rather it goes against it. /{tl/ Jugal Krishna Mullick vs. Phut Kumari Dassi, AIR 1918 Calcutta 909. It was a case where one Phul Kumari Dassi as the administratrix to the estate of her late husband filed the suit to set aside the sale of part of the estate for arrears of revenue. One Jugal Krishna claiming to be an adopted son of the deceased husband of Phut Kumari applied to the trial Court to be made a co-plaintiff in the suit. The application was rejected by the trial Judge. It appears there was another suit pending between Phut Kumari and Jugal Krishna wherein Phul Kumari admitted that Jugal Krishna was adopted by her but pleaded she had no authority from her husband to adopt. The question arose whether in the above circumstances the prayer of j.. pr 17 Jugal Krishna to be added as a co-plaintiff in the suit filed by Phut Kumari was justified. The Calcutta High Court held that in view of the admission of Phul Kumari that Jugal Krishna was adopted by her as a son he was entitled to be made aL party. The above was a case where there was admission by the plaintiff that Jugal Krishna was her adopted son and had thus interest in the relief claimed by her in the suit. He was, therefore, held to be a proper party in the suit. /tl/ Bacha sham sunder Kuer vs. Balgobind singh, AIR 1930 Patna 323. It was a case in which in a rent suit filed by the landlord against a tenant, a third party applied to be added as a defendant on the allegation that the disputed holding had been transferred to him with the consent of landlord and, therefore, he was the real tenant. The Patna High Court held that the presence of intervening party would enable the trial Court to effectually and completely decide and settle all questions involved in the suit. The facts of that case are distinguishable !.rrasmu/ch as the intervening party came forward alleging that he was the real tenant and not the defendant. In view of such allegation, his presence was, therefore, necessary in the suit. /W/ Chava Lakshmidevamma vs. Chava Nagayya, AIR 1949 Mad 369. A suit was filed for declaration of the 18 •f\, `-+*r plaintiff's title and permanent injunction restraining defendants from interfering with her possession. Defendantsinthewhttenstatementdeniedthattheplaintiff was entitled to succeed to her husband's property. According to them one S., one of their sons was adopted by the plaintiffs deceased husband and the said S. was in possession of the suit property. The Madras Hich Court held that a decision as to who had title to the property was necessarytobedecidedand,therefore,S.wasaproperparty whose presence was necessary for determination of the real dispute. The suit being for declaration of title and