IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.88 of 2004 and CMP Nos.13719 to 13721 of 2004 1.Harakh Chand Golecha 98, Choolai High Road Chennai 600 112. 2.T.Shanthilal Golecha .. Appellants vs 1.Sri Chandraprabha Jain Swetamber Temple Rep. By its Potedar R.Prakash Chand Golecha 38, Venkatachala Mudali Street Choolai, Chennai 600 112. 2.R.Prakash Chand Golecha .. Respondents Original side appeal preferred under Order 36 Rule 11 of O.S. Rules read with Clause 15 of Letters Patent against the order of this Court in Application No.3578 of 2003. For Appellants : Mr.S.Satish Parasaran For Respondents : Mr.T.Viswanatha Rao JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to an order of dismissal made by the learned Single Judge in Application No.3578 of 2003 filed under Sec.92 of the Code of Civil Procedure for leave to file the suit. 2.The Court heard the learned Counsel on either side. The averments in the plaint, the affidavit in support of the application and the counter affidavit are looked into. The order under challenge is also perused. 3.The appellants as plaintiffs made the said application under Sec.92 of C.P.C. seeking leave to file the suit for the reliefs found therein, alleging that the suit is filed for approval of the scheme of https://hcservices.ecourts.gov.in/hcservices/ trust for the proper and efficient administration of the affairs and properties of the first defendant temple which is in the sole control and custody of the second defendant. The plaintiffs are Jains by birth and persuasion, and they are regular devotees and worshippers of the first defendant temple. The first plaintiff was nominated as one of the members of the High Level committee in the meeting dated 27.4.2003, to finalise the draft trust deed for the administration of the first defendant temple. 4.It is further alleged by the plaintiffs that Shree Chandraprabhu Jain Swetamber Temple situated in 38, Venkatachala Mudali Street, Choolai, Madras, was constructed and consecrated by the family members of Seth Shri Kaluram Ratanlal Maloo (natives of Phalodi, Rajasthan) in the year 1896. The same was managed for a period of 36 years. Thereafter, it was handed over to the devotees of the temple who were residing at Choolai, Veperi and Purasawalkam areas, in the year 1933. They were called as members of Shree Choolai Bazaar Jain Sangh. They were managing the temple administered by the Trustees. Thereafter, the management of the temple and properties were carried on by the decision taken by the devotees. Then, it was shifted to a single Trustee called 'Potedar' on whom the general body of the temple placed utmost faith. The temple management was continued without any written constitution of trust or registration of the Devotee Association. In a general body meeting dated 7.4.1985, there was a unanimous resolution to have the written constitution. Accordingly, the adhoc committee prepared the trust deed based on the resolutions, and the general body in the meeting on 2.10.1989, unanimously elected the board of trustees and office bearers of the trust as required in the constituted trust deed which consists of 17 trustees and also the Potedar. The trust deed was unanimously approved. The second defendant who is the younger son of the erstwhile Potedar, took personal responsibility to transfer the accounts and other documents for the functioning of the trust. The board of trustees could not function since there was no proper handing over of proceedings. The second defendant unilaterally convened a general body meeting on 3.1.1993 overlooking and ignoring the elected board of trustees. Despite protest made by several members, the second defendant contested for the post of Potedar and declared as elected unanimously. He was acting all along against the wishes of the senior general body members. Thus, the written constitution of the trust was not implemented, and the duly elected trust board and its office bearers could not assume office. 5.It is the further case of the plaintiffs that the second defendant with the assistance of the supportive group was managing the affairs of the temple in his own way and to his advantage. But, the members did not have any power or authority to question the same. The several members in the general body meeting on 27.4.2003, pressurised the Presiding Potedar, the second defendant herein, to constitute a High Level Committee for review and adoption of the written constitution of the trust. It unanimously approved the previous trust deed with minor alterations and additions thereto on 6.7.2003, which is marked as document No.2. In the subsequent general body meeting held on 20.7.2003, the second defendant and his supporters incited disharmony and disturbance. He was taking his own decisions as unanimous with https://hcservices.ecourts.gov.in/hcservices/ regard to all subjects. In such circumstances, a compulsion arose to the devotees including the plaintiffs herein, to form an action group called Shree Chandraprabha Jain Shwetambar Mandir Subhechu Sangh which issued a legal notice dated 8.8.2003, to the second defendant for transfer of power to the Trust Board and also to comply with the statutory requirements relating to the filing of the income tax returns. The said notice has brought forth no result, and under the circumstances, they brought forth this action for the above reliefs. 6.The respondents filed a detailed counter inter alia alleging that the said temple is only a private trust and no public trust has been declared; that it belonged to a sect; that even assuming that it is a public trust, the necessary ingredients for invoking the jurisdiction of the Court have not been alleged in the affidavit in support of the application; that there was no express or constructive trust created for public purpose in respect of the temple, and hence, the application itself was not maintainable. It is further alleged that the temple is also maintained in a democratic manner by Choolai Bazaar Jain Sangh; that it is neither made a party, nor allegations are made against the Sangh or the trustees; that the said Choolai Bazaar Jain Sangh is actually in possession of the temple; but, it has also been not added as a party; that since it is a private temple of Choolai Bazaar Jain Sangh, the provisions of Sec.92 of CPC will not be attracted, and hence, the application was to be dismissed. 7.On enquiry, the learned Single Judge has refused to grant leave and dismissed the application. Hence, this appeal. 8.Advancing arguments on behalf of the appellants/plaintiffs, the learned Counsel would submit that the learned Single Judge after analysing the materials available, has come to the conclusion that there was a constructive trust of a religious nature beneficiary being the public; that the question that was posed for consideration further was whether leave should be granted; that the learned Single Judge has pointed out that there are no averments made in the plaint that Choolai Bazaar Jain Sangh was acting in such a manner detrimental to the interest of the beneficiaries of the trust, or there was any breach of such trust or direction from the Court; and that the learned Single Judge pointing to document No.2 filed along with the plaint, has stated that till July 2003, nothing was said against the said Sangh warranting an inference by the Court under Sec.92 of C.P.C., and the affidavit in support of the application under Sec.92 was signed on 20.8.2003, and even in the proposed plaint, there was no criticism against the said Sangh, and in the absence of any complaint or criticism against the Sangh, Sec.92 of C.P.C. could not be invoked for granting leave. 9.The learned Counsel would further add that these documents were filed in order to indicate that the properties though appear to be managed by the said Sangh, the second defendant with the assistance of his supportive group has taken the entire management; that even the resolution that has been passed, was one passed at his instance; that it was not a free will of the members of Choolai Bazaar Jain Sangh; that the second defendant as a Potedar and one of the trustees also, is acting against the interest of the temple and its properties; that all https://hcservices.ecourts.gov.in/hcservices/ his prejudicial activities are averred specifically in the plaint; that what was all required was an efficient and proper management and administration of the temple; that having found that it is a constructive trust of religious nature beneficiary being the public, in view of the specific allegations made that a proper and efficient administration is required, the learned Single Judge ought to have held that the necessary ingredients of Sec.92 of C.P.C. are actually satisfied for granting the leave; and that under the circumstances, the order of the learned Single Judge has got to be set aside. 10.Contrary to the above, the learned Counsel appearing for the respondents would submit that the order refusing to grant leave, has got to be sustained for the reason that in order to obtain leave under Sec.92 of C.P.C., the applicant should not only prove that there was a public trust, but also must bring forth necessary averments criticising or complaining of the activities of the trust which could be termed as a breach of trust or direction from the Court; that a complete perusal of the plaint does not indicate anywhere that there was any breach of trust or direction from the Court; that even in the plaint, it has been specifically admitted that properties are vested with the Sangh; that if to be so, the Sangh should have been made as a party; that to decide whether leave to be granted or not, it should have been added as a party, but not done so; that the learned Single Judge has also pointed out in the order that the said Sangh should have been made as a party, and in the absence of the same, such a leave could not be asked for; that pointing to the document filed by the plaintiffs, the learned Single Judge has pointed out that till the time of the filing of the affidavit in support of the application, the administration was perfectly all right, and if to be so, there was no reason to grant leave, and hence, dismissed the application, and under the circumstances, the said order has got to be sustained. 11.The Court paid its anxious consideration on the submissions made. 12.It was an application filed by the appellants under Sec.92 of C.P.C. seeking for leave to file the suit for the reliefs which are (a) to settle and approve the draft declaration of Trust filed as plaint document No.2 with such modifications and amendments as may be deemed appropriate; (b) to direct holding of elections for filling up the posts of Trustees; and (c) to direct the second defendant to deliver possession of the management and properties held by him in Trust on behalf of the first defendant temple to the Board of Trustees duly constituted under the deed of declaration of Trust. 13.From the very reading of the plaint, it would be quite clear that the plaintiffs concentrate on getting the said reliefs in respect of the management and administration of the temple and its properties which, according to them, is a public one. Further, they have specifically averred that though the properties are actually vested with Choolai Bazaar Jain Sangh, the second defendant with the assistance of his supportive group, has taken undue advantage of the situation and mismanaging them, and hence, there arose a necessity for filing a suit https://hcservices.ecourts.gov.in/hcservices/ for proper and efficient administration and management of the temple and its properties. The application was countered by the respondents on three grounds. Firstly, it was a private temple. Secondly, there is no averment as to the breach of trust, and thirdly, Choolai Bazaar Jain Sangh is not added as a party. The learned Single Judge after considering the materials available, has held that from the usage of the temple and its properties over these years, it can be concluded that there is constructive trust of religious nature beneficiary being the public and rightly too. This Court is unable to see any reason to disturb this part of the finding. 14.The next question that would arise for consideration is whether in the absence of any pleading in respect of breach of trust or direction from the Court, a leave as asked for by the applicants could be granted. It would be more apt and appropriate to reproduce the decision of the Apex Court reported in AIR 1974 SUPREME COURT 2141 (SWAMI PARMATMANAND SARASWATI AND ANOTHER V. RAMJI TRIPATHI AND ANOTHER) as follows: "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 Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. If the allegation of breach of trust is not substantiated or if the plaintiff has not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail. If it 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 of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92...... 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. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92." 15.From the very reading of the above decision, it would be quite clear that leave can be sought for under Sec.92 of C.P.C. for filing a suit either on the allegation that there was breach of trust or that a direction of the Court was necessary for the administration of the trust. In the instant case, a reading of the plaint would make it clear that for the proper and efficient administration of the suit temple and its properties, it became necessary to file the suit, and hence, it would satisfy the requirement under Sec.92 of C.P.C. The learned Single Judge has concentrated that there was no breach of trust or direction https://hcservices.ecourts.gov.in/hcservices/ from the Court. But, the contention that for efficient and proper administration of the temple, it became necessary under the stated circumstances, to file the suit was not taken into consideration. Added further, the learned Single Judge relied on a document of the year 2003 filed by the plaintiff along with the plaint and has also recorded that the administration was proper. But, specific allegations are found in the plaint that such a resolution came to be made at the instance of the second defendant. Under the circumstances, such a finding could not be recorded before taking into consideration the evidence to be adduced. 16.This Court is able to see force in the contention put forth by the learned Counsel for the respondents. Concededly, the properties as on today are in the hands of Choolai Bazaar Jain Sangh, which was not added as a party. This Court is of the considered opinion that Choolai Bazaar Jain Sangh is a necessary party, and they must be given an opportunity of being heard as to the averments made in the affidavit in support of the application. Only then, the Court can take a decision in the matter. Under the circumstances, the order of the learned Single Judge is set aside, and the matter is remitted back to the learned Single Judge for giving an opportunity to the appellants to add Choolai Bazaar Jain Sangh as a party and also an opportunity to the added party to file counter and for taking a decision as one required under law. Accordingly, this original side appeal is allowed. No costs. Consequently, connected CMPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ The Sub Assistant Registrar, Original Side, High Court, Madras - 104. 1 cc To Mr.Satish Parasaran, Advocate, SR.35558. 1 cc To Mr.T.Viswanatha Rao, Advocate, SR.36025. OSA No.88 of 2004 SS(CO) RVL 17.07.2008 https://hcservices.ecourts.gov.in/hcservices/