Case: Sinnamani  Vs. G. Vettivel

out that while invoking Section 49 of the Act the Court should not stick on to hyper technicalities in respect of forms and procedures, it is the duty of the principal civil court even to act suo motu whenever it is brought to the notice of the court that there is a misconduct or any other mal practice committed by the Trustees. Learned counsel also submitted that in the event of the Court coming to the conclusion that by some improper advice given, the appellants have misdirected themselves in filing the Trust O.P., the same can always be converted into a civil suit. 7. Shri Vijay Hansaria, learned senior counsel appearing for the respondents, on the other hand, supported the findings recorded by the courts below. Learned senior counsel also placed reliance on the judgment of this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (1999) 7 SCC 39 and submitted that the Trust O.P. cannot be converted as a civil suit. 8. We have perused the Trust O.P. filed by the appellants in the lower court which is not in the nature of a plaint. The expression Original Petition as such is not defined either in the Trust Act or in the Code of Civil Procedure. However, Rule 3(9) of the Code of Civil Procedure defines Original Petition as follows: 3(9). Original petition means a petition whereby any proceeding other than a suit or appeal or a proceedings in execution of a decree or order, is instituted in a court. 9. Section 2(14) C.P.C. defines the term Order which reads as under: 2(14). Order means the formal expression of any decision of a civil court which is not a decree; 10. A comprehensive reading of the above-mentioned provisions will make it clear that the Trust O.P. filed by the appellants before the Principal District Judge cannot either be construed a suit or equated to be a suit. The final order passed in the Trust O.P. cannot also be construed as a decree as defined in Section 2(2) C.P.C. It can only be an order as defined in Section 2(14) C.P.C. The term suit, as such is not defined in the Code of Civil Procedure. However, Section 26, C.P.C. gives an indication as to the manner in which suit has to be instituted. Section 26 reads as under: 26. Institution of suits: 1) Every suit shall be instituted by the presentation of a plaint or in such other matter as may be prescribed. 2) In every plaint, facts shall be proved by affidavit. 11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows: Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code. 12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit. 13. In the above facts situation, we

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. A suit can be instituted by presentation of a plaint and Order IV and VII C.P.C. deals with the presentation of the plaint and the contents of the plaint. Chapter I of the Civil Rules of Practice deals with the form of a plaint. When the statutory provision clearly says as to how the suit has to be instituted, it can be instituted only in that manner alone, and no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with the rights and liabilities of the beneficiaries, which would indicate that the beneficiaries of trust have been given various rights and those rights are enforceable under the law. Section 59 of the Act confers a right upon the beneficiaries to sue for execution of the trust which would indicate that the beneficiaries may institute a suit for execution of the trust. Therefore, the above-mentioned provisions would show that in order to execute the trust, the right is only to file a suit and not any original petition. Under the Trust Act also for certain other purposes original petitions can be filed. Section 72 of the Trust Act provides for a trustee to apply to a principal civil court of original jurisdiction by way of petition to get himself discharged from his office. Similarly, Section 73 of the Act empowers the principal civil court of original jurisdiction to appoint new trustees. Few of the provisions of the Act permit for filing of original petitions. The above facts would clearly indicate that the Trust Act provides for filing of a suit then suit alone can be filed and when it provides for original petition then original petition alone can be filed and there is no question of conversion of original petition to that of a civil suit or vice-versa, especially in the absence of a statutory provision under the Trust Act. A similar question came up for consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (supra) wherein, while interpreting Section 20 C.P.C. the Court held as follows:Further, before applying the provisions of Order VI Rule 17, there must be institution of the suit. Any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act. In any case, the amendment would introduce a totally new cause of action and change the nature of the suit. It would also introduce a totally different case which is inconsistent with the prayer made in the application for referring the dispute to the arbitrator. Prima facie, such amendment would cause serious prejudice to the contention of the appellant that the claim of the respondent to recover the alleged amount was barred by the period of limitation as it was pointed out that cause of action for recovery of the said amount arose in the year 1975 and the amendment application was filed on 30.3.1986. Lastly, it is to be stated that in such cases, there is no question of invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. as it would nullify the procedure prescribed under the Code12. Certain legislations specifically provide for conversion of original petition into a suit. Section 295 of the Indian Succession Act is such a provision. The Trust Act, however, contains no such enabling provision to convert the original petition into a suit