IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.272 of 2009 1. BIHAR HINDU RELIGIOUS TRUST BOARD, PATNA THROUGH ITS PRESIDENT, NOW ITS ADMINISTRATOR- CUM-O.S.D. (BECAUSE OF SUPERSESSION), VIDYAPATI MARG, PATNA-800 001. 2. KISHORE KUNAL, ADMINISTRATOR-CUM-O.S.D., BIHAR STATE BOARD OF RELIGIOUS TRUST, VIDYAPATI MARG, PATNA-800 001. -APPELLANTS Versus 1. SRI VIDESH KUMAR CHAUDHARY, S/O LATE ISHWAR PRASAD, ALLEGED SHEVAIT AND MANAGER OF SRI RAM LAKSHMAN JANAKJI AND MAHADEOJEE TEMPLE (TRUST), BARA BAZAR, MADHUBANI TOWN, P.S. MADHUBANI, DISTRICT-MADHUBANI. 2. SRI RAM LAXMAN JANKI THAKURBARI (TRUST) THROUGH ITS (ALLEGED) SHEVAIT, SRI VIDESH KUMAR CHAUDHARY S/O LATE ISHWAR PRASAD, BARA BAZAR, MADHUBANI TOWN, P.S. AND DISTRICT- MADHUBANI. -RESPONDENTS (1ST SET) 3. THE CIRCLE OFFICER, RAHIKA CIRCLE, P.S. RAHIKA, DISTRICT-MADHUBANI. -RESPONDENT (2ND SET) 4. SRI SHASHI BHUSHAN SINGH (SUPERINTENDENT), NOW SRI TULSIDAS GOSHWAMI, SUPERINTENDENT, BIHAR HINDU RELIGIOUS TRUST BOARD, VIDYAPATI MARG, PATNA-1. -RESPONDENT 3RD SET. For the Appellants : M/s Indu Shekhar Pd. Sinha & Shashi Nath Jha For the Respondents: Mr. Yogendra Prasad 4 12.07.2010 Heard learned counsels appearing for the parties 2 and with their consent this appeal is being disposed of at the admission stage itself. Undisputedly, there is a private trust which has been subject matter of this appeal. The appeal has been filed against the order passed by the lower appellate court refusing the prayer made on behalf of the defendant-appellant under Order 40 Rule 1 Civil Procedure Code read with Sections 94 and 151 seeking appointment of Receiver with respect to Trust before the passing of the order of the Management of the Trust. The main contention of the learned counsel for the appellants is that the plaintiff- respondents no.1 and 2 here are not fit person to manage the Trust properties even if it is a private Trust, since they are facing trial for abducting one Dhurub Narayan Prasad and also respondent no.1, Videsh Kumar Chaudhary, who was once convicted for offences under Section 426 and 323 of the Indian Penal Code. In support of the contentions, learned counsel for the appellants placed reliance on a decision of the Supreme Court in the case of Thenappa Chettair V. Karuppan Chettiar, A.I.R. 1968 S.C. 915; wherein in paragraph 6 of the judgment the Apex Court has held “ the 3 parties in the case have proceeded on the footing that the trust is a private trust, but the authorities established that even in the case of private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the object of the trust. If there is a breach of trust or mis-management on the part of the trustee the suit can be brought in a civil court b any person interested for the removal of the trustee and for the proper administration of the endowment. Reliance have further been placed on the decision of the Apex Court in the case of Ram Chand V. Janki Ballabhji, A.I.R. 1970 SC 532 = 1969(2) S.C.C. 313; wherein in paragraph 9 of the judgment it has been held that this is undoubtedly a private Trust but the Civil Court has jurisdiction to frame a scheme of the management of a temple which is not a public Trust but before arriving at the above decision in paragraph 8 the Apex Court has arrived at the finding that “Ram Chand has committed several acts of mis- management and mis-appropriation of the temple and its properties”. From the above two decisions of the Apex Court 4 there remains no doubt that even in a case of private Trust Civil Court has jurisdiction to do the needful with respect to the management of the Trust but, at the same time, it must arrive at the conclusion that there was some sort of mis- management or mis-appropriation of the Trust properties. But, in the instant case, prima-facie, it is missing. On behalf of the appellants reliance has been placed on a decision of this Court in the case of Dharam Nath Ojha V. Raghunath Ojha, 2001 (2) PLJR 268; wherein it has been held “having considered the rival submissions, I am of the view that this application not to be allowed. Law is well settled that if a lis has been admitted for adjudication, then it becomes the duty of the Court to preserve the subject matter of the litigation by an appropriate order so that the same is available at the time of final adjudication and the decree does not become the barren one. Which finds also referred in subsequent decision of this Court in a case of Ram Shreshth Singh V. Chulhai Singh, 2010(1) PLJR 691. In both the cases before this Court, matter was completely different and in latter case the appeal appears to 5 have been dismissed as it was a case under Indian Succession Act and appellant was inviting a Court to invoke jurisdiction under Order 39 Rule 1 of the Code of Civil Procedure whereas the earlier case was related with the consolidation proceeding. Here in this appeal, this is undisputed that it was a private Trust and earlier there was also a dispute at the instance of the Bihar Hindu Religious Trust Board, Patna but it was decided against the Trust. By placing reliance upon decision of Privy Council in the case of Satish Chandra Giri V. Dharnidhar Singha Roy and Others, A.I.R. 1940 Privy Council 24; it has been submitted that being a convict and facing trial of criminal charges the two respondents are not competent to hold charge of trust but again the decision, referred to above, wherein it has been held that “where secular and religious functions of Mahant are intermingled and interdependent and have always been held and performed throughout the long history of the endowment by the same individual, the Court in a fit case will have the power to remove the individual from the performance of both the functions, and if it be found by 6 the Court that the functionary, in the exercise of his duties, has put himself in a position in which the Court thinks that the obligations of his office in connection with the endowment can no longer be faithfully discharged without danger to the endowment, that is a sufficient ground for his removal, if need be, from both his offices.” But, in order to support the contention regarding incompetence of contesting respondents only two things have been produced. One is earlier conviction of respondent no.1 and another continuity of the trial in the criminal case So far respondent no.1 being a convict and not competent to manage the Trust property is concerned, it appears from Annexure-4, i.e. copy of decision of the year 1984 in a case of the year 1978 wherein he was convicted for the offences under Sections 426 and 323 of the Indian Penal Code but at the same time he was released giving benefit as provided under Section 360 of the Code of Criminal Procedure. So this old decision does not affect the role of respondent no.1 if he has otherwise a competent person to manage the Trust properties. So far allegation of abduction is concerned, by 7 way of Annexures-3 and 5, copy of charge sheet and one petition said to have been filed by the informant Munni Devi wife of Dhurv Narayan Prasad, alleging that her husband was Shevait of temple and respondents here had got him abducted in the garb of his treatment. No doubt, there are some allegation of serious nature against the contesting respondents but unless the charges are proved and their guilt is established they cannot be held incompetent to proceed with the Trust properties and managing the affairs. It was also contended that appellant no.2 has established his capacity to manage religious properties. No doubt, there is no challenge against his competency but at the same time, unless and until anything is specifically alleged as proved regarding misappropriation of the Trust properties at the hands of respondent no.3 they cannot be, prima facie, deprive of their rights. I find no error in the order of the lower appellate Court refusing the prayer to appoint Receiver. Accordingly, finding no merit, this appeal is hereby dismissed. At the same time lower appellate court is directed, without being prejudiced of this order, to dispose of the appeal on its own 8 merit, preferably within three months of communication of this order. (Akhilesh Chandra, J.) AAhmad