Kerala High Court
C.R.Radhakrishna Pillai vs Bhargavi Amma on 25 May, 2012
Equivalent citations: 2012 AIR CC 2614 (KER), (2012) 116 ALLINDCAS 515 (KER), (2013) 1 CIVLJ 121, (2012) 3 CIVILCOURTC 44, (2013) 1 ICC 418, (2012) 2 KER LT 842, (2013) 1 CURCC 261
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
CRP.No. 192 of 2012 ()
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OS.273/2011 OF PRINCIPAL SUB COURT,KOLLAM
REVISION PETITIONER(S)/REV.PETITIONER/SECOND DEFENDANT:
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C.R.RADHAKRISHNA PILLAI, AGED 56 YEARS
S/O.RAGHAVAN PILLAI, AGED 56 YEARS
RESIDING ATVRINDAVAN, E.P.1/35, ELLUVILA
NEAR E.S.I.,KERALAPURAM, PERUMPUZHA P.O.
ELAMPALLOOR VILLAGE.
BY ADVS.SRI.LEO GEORGE
SRI.T.T.RAKESH
RESPONDENT(S)/PLAINTIFFS:
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1. BHARGAVI AMMA
D/O.KUNJUKUTTY AMMA, AGED 65 YEARS, VADAKKEKARA
ELAYAM, VI/356, VAKKANAD P.O.
KOTTARAKKARA TALUK,KOLLAM - 695 001.
2. SREEDEVI AMMA.D.
D/O.DEVAKI AMMA, AGED 58 YEARS, SARAS
CHEMMAKKAD,PANAYAM PANCHAYATH, V/41
KOLLAM - 691001.
SRI. SAJU S.A. (CAVEATOR)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 25-05-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
"C.R."
V. CHITAMBARESH, J
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C.R.P. NO. 192 OF 2012
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Dated this the 25th day of May, 2012
ORDER
Is a suit maintainable for modification of a scheme already settled by court for the administration of a private religious trust? This is the interesting question that arises for consideration in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908.
2. The first defendat by name 'Elampalloor Devaswom Trust' is conceded by the parties to the suit to be a private religious trust. Therefore the provisions of Section 92 of the Code of Civil Procedure do not ipso facto apply even though the principles can be extended. The scheme for administration of the trust had been settled in O.S. No. 280/1997-Sub Court, Kollam. There was a subsequent suit for modification of the said scheme in O.S. No. 408/1981 on the file of the same court. But the suit was dismissed and the decree is impugned in A.S. No. 100/2005-District court, 2 CRP No. 192/2012 Kollam which is stated to be pending. The present suit in O.S. No. 273/2011-Sub court, Kollam has been filed by persons who were not eo-nominee parties to the earlier two suits. The principal prayer is for modification of the scheme settled as early as on 24.11.1958 in O.S. No. 280/1957. The other prayers in this suit are for accounting by the trustees and for their removal for breach of trust.
3. The second defendant who is the convenor of the trust raised a preliminary objection as regards the maintainability of the suit. His contentions were two fold and they are as follows:
(i) The remedy, if any, of the plaintiffs in O.S. No. 273/2011 is to file appropriate applications in O.S. No. 280/1957 itself wherein modification of the scheme can very well be considered by court.
(ii) O.S. No. 273/2011 is barred by the principles of resjudicata in view of Explanation VI to Section 11 of the Code of Civil Procedure and the parties are governed by the decree in O.S. No. 280/1957.3 CRP No. 192/2012
4. The plaintiffs on the other hand contended that the scheme settled in O.S. No. 280/1957 does not enable any of the aggrieved parties to file applications. It is also contended that the plaintiffs are not parties to the earlier two suits for the doctrine of resjudicata to operate. The plaintiffs reiterate that the entire fabric of the scheme already settled has to be altered for which a new suit is necessary. The present suit has been filed on an altogether different cause of action which was not present when the earlier suits were filed. The plaintiffs in short maintained that the suit in O.S. No. 273/2011 for modification of the scheme settled in O.S. No. 280/1957 and for ancillary reliefs is maintainable.
5. The second defendant had filed I.A. No. 4969/2011 in O.S. No. 273/2011 under Order 14 Rule 2 of the Code of Civil Procedure. This was for the purpose of considering the maintainability of the suit on the grounds stated supra as a preliminary issue. The court below has held that the suit is maintainable which is challenged by the second defendant in this Civil Revision Petition. I have heard Mr. P.B. Suresh Kumar, 4 CRP No. 192/2012 Senior Advocate on behalf of the revision petitioner. I have also heard Mr. S. Krishnanunni, Senior Advocate who had lodged a caveat on behalf of the respondent in the Civil Revision Petition.
6. True it is that a modification of a scheme settled can be had by an application made under the relevant clauses of the scheme without the necessity of a fresh suit. The suit for settlement of a scheme is analogous to an administration suit and therefore applications can be filed if the modification is for the purpose of administration. The law in this regard has been laid down in Raje Anandrao Vs. Shamrao [AIR 1961 SC 1206]. Such remedy can be resorted to even if there is no express provision in the scheme as held in Elias Vs. Elias [1986 KLT 72]. But does it mean that a fresh suit for modification of a scheme cannot be filed under any circumstance whatsoever? The plaintiffs in O.S. No. 273/2011 have averred that the existing scheme is not fool proof to protect the interest of the members of the trust. It is also averred that there is no delegation of power and specification of duties of the trustees. The consequences for breach of trust are also not spelt out in the 5 CRP No. 192/2012 scheme and that its entire fabric needs to be altered therefore. I am in these circumstances of the firm view that a suit of the nature filed in O.S. No. 273/2011 is perfectly maintainable.
7. I am fortified in this view by the judgment in Shrinivas R. Acharya and others Vs. Purushottam Chaturbhuj and others [AIR 1953 Bombay 393]. It is held therein as follows:
"In case of a scheme framed by the court in a charity suit, question may arise or working out the rights declared by the judgment. Or the question may be of some ordinary modification in the scheme rendered necessary to enable the scheme to operate more beneficially. The effect of the liberty to apply in such a case would be to enable the court to deal with the matter in a summary manner. On the other hand vital and important questions may arise requiring substantial alterations in the scheme. This may also necessitate going into lengthy evidence. It cannot be laid down as a general rule that merely because there is available the procedure by way of any application, a substantive suit is necessarily barred. I fail to see how it can be said that asking for alteration of every nature in a scheme at some future date is to re-agitate a matter already disposed of in a previous suit". (emphasis supplied)
8. I should also bear in mind that a civil court can entertain any suit of civil nature except those cognizance of which is expressly or impliedly barred. This is the purport and 6 CRP No. 192/2012 import of Section 9 of the Code of Civil Procedure and the following decisions are apposite:
(i) Kamala Mills Ltd. Vs. State of Bombay [AIR 1965 SC 1942].
(ii) Dhulabhai Vs. State of Madhyapradesh [AIR 1969 SC 78].
(iii) Nagri Pracharini sabha Vs. V Additional District & Session Judge [1991 supp. (2) SCC 36].
(iv) Dhrub Green Field Ltd. Vs. Hukam singh [2002 (6) SCC 416]
(v) Ramkanya Bai Vs. Jagdish [2011 (7) SCC 452].
9. The suit in O.S. No. 273/2011 cannot also be said to be barred by resjudicata under Explanation VI to Section 11 of the Code of Civil Procedure. It may be true that all persons claiming any interest in the trust are bound by the decree and the scheme framed thereunder. But that does not certainly affect the right to file a suit for modification or for alteration of the scheme. A reading of the plaint reveals that the dispute relates to matters which have cropped up at a later stage in the working of the trust. It would not be the same 'res' nor can it 7 CRP No. 192/2012 necessarily be said that the issue has been adjudicated upon in the previous suit. The plaintiffs have pointedly alleged misdemeanor on the part of the present trustees who were not holding office earlier. Voluminous evidence may have to be let in to establish the serious omissions and commissions on their part. Added to this is the fact that the decree in O.S. 408/1981 has not become final and is pending in appeal as stated earlier.
10. The question whether the relief sought for by the plaintiffs could be granted in view of the decree in the earlier two suits is altogether a different aspect. The order of the court below holding that the suit is maintainable in law does not suffer from any infirmity. There is no error of jurisdiction in the order impugned warranting interference under Section 115 of the Code of Civil Procedure.
This Civil Revision Petition fails and is dismissed. No costs.
V. CHITAMBARESH JUDGE ncd