Allahabad High Court
Mrs. B. Martyr vs Thakur Madan Mohanji Maharaj Trust And 3 ... on 17 October, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:165099 Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 13137 of 2024 Petitioner :- Mrs. B. Martyr Respondent :- Thakur Madan Mohanji Maharaj Trust And 3 Others Counsel for Petitioner :- Mohd. Kalim,Priyansh,Sr. Advocate Hon'ble Ajit Kumar,J.
1. Heard Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Priyansh, learned counsel for the petitioner and perused the records.
2. By means of this petition filed under Article 227 of the Constitution, petitioner, who is a tenant of the premises in question belonging to the 1st respondent has questioned the judgment and order passed by the Judge, Small Cases dated 5th February, 2018 in Small Cause Suit No.- 24 of 1997 decreeing the suit and the order dated 18th May, 2024 passed by the Additional District Judge, Court No.- 21, Agra rejecting the revision being SCC Revision No.- 09 of 2018.
3. The main plank of argument advanced by learned Senior Advocate for assailing the order impugned before this Court that in view of the order of remand passed by this Court dated 30th April, 2014 in Writ - A No.- 63451 of 2006, the Court was mandated to decide the issue; as to whether the person claiming to be landlord was a public charitable trust so as to seek exemption from application of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.- 13 of 1972) vide Section 2(1) (bb), however, the trial court while deciding the issue and holding that plaintiff is a charitable trust and so entitled to seek exemption taking benefit of Section 2(1) (bb) of the U.P. Act No.- 13 of 1972 has failed to make any reference to Section 3(r) and 3(s) of the U.P. Act No.- 13 of 1972.
4. Yet another argument advanced by learned Senior Advocate is to the effect that while holding the trust to be a charitable trust the judgment that has been relied upon passed in some earlier suit instituted under Section 92 of the Code of Civil Procedure and in some earlier rent proceedings were not inter-party and, therefore, should not been been taken to be having a binding effect in the present case instituted for eviction of the tenant.
5. One more argument has been advanced that the Court while holding the trust to be a charitable trust at one place has also referred it to be religious trust but there is no such supportive reasoning assigned as such to hold it to be a religious trust within the meaning of Section 3(s) of the U.P. Act No.- 13 of 1972.
6. It is further submitted by learned Senior Advocate that the court sitting in revision has also manifestly erred in affirming the judgment and the order passed by the trial court.
7. Learned Senior Advocate has placed reliance upon two authorities of this Court as well as of Supreme Court Radhey Shyam Kushwaha v. Appar District Judge, Court No.- 9, Varanasi and others, 2012(3) A.R.C. 823 : Law Finder Doc Id # 396425, Suresh Chandra and another v. Sanatan Dharm Satsang Bhawan Adhyatmic Vidyalaya, 2012(3) A.C.R. 251 : Law Finder Doc Id # 408770.
8. Having heard learned Senior Advocate appearing for the petitioner and having perused the record and the judgments impugned in this petition, the only question that arises for consideration of the Court is as to, whether the judgments impugned are not sustainable for a mere non reference to the relevant provision of U.P. Act No.- 13 of 1972 while returning findings to the effect that plaintiff was a charitable trust and secondly also as to whether the findings returned in respect of the plaintiff to be a charitable trust, perverse.
9. In order to appreciate the findings, the Court finds it necessary to refer to the definition clause as provided for under Section 3(r) & 3(s) of the U.P. Act No.- 13 of 1972. The relevant provisions are reproduced hereunder:
"3(r) 'charitable institution' means any establishment, undertaking organization or association formed for a charitable purpose and includes a specific endowment;
Explanation. - For the purposes of this clause, the words 'charitable purpose' includes relief of poverty, education, medical relief and advancement of any other object of utility or welfare to the general public or any section thereof, not being an object of an exclusive religious nature;
3(s) 'religious institution' means a temple, math, mosque, church, gurudwara or any other place of public worship."
10. From a bare reading of the aforesaid provisions it is clear that any establishment or undertaking or origination or for that matter an association which is formed for a charitable purposes and includes specific endowment, would be a charitable trust. For this purpose the explanation added is that any charity includes relief qua poverty, education, medical relief etc. The religious institution are like places of worship or Math like temple, mosque, church, gurudwara. If the institution or organization or association, therefore, portrays a character as prescribed under Section 3(r) and 3 (s) as quoted above, then a building belonging to such organization or association or institution would stand exempted from the operation of the Act No.- 13 of 1972 in view of the provisions contained under Section 2(1) (bb) which is reproduced hereunder:
"2 (1) (bb). Any building belonging to or vested in a public charitable or public religious institution."
11. Now, therefore, it is clear that if the plaintiff had a character of charitable trust then such premises tenanted to the petitioner would stand exempted from operation of Act No.- 13 of 1972. In order to appreciate as to whether upon the testing anvil Section 3(r) and 3(s) of the U.P. Act No.- 13 of 1972, the findings returned by the Judge, Small Causes are sustainable.
12. From the perusal of the judgment, specially of its finding part, it clearly transpires that plaintiff before the Court not only filed affidavit making averments but in his statement deposed that the property in question belonged to charitable trust. For this purpose they have also filed a judgment of court of law in Suit No.- 286 of 1994 in which interim injunction was granted. This suit was filed under Section 92 of the Code of Civil Procedure. Section 92 of C.P.C. without any doubt, permits entertainment of the suit by the Principal Judge of Civil Court in respect of charitable trust alone. The provision of Section 92 of C.P.C. is reproduced hereunder:
"92. Public charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypres in one or more of the following circumstances, namely:--
(a) where the original purposes of the trust, in whole or in part:-
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down:--
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust."
13. So, now it is to be seen whether the findings returned on the score of the judgment being cited of court of law in a rent suit Case No. 35 of 1973 filed under Act No.- 18 of 1973 would be having a binding effect.
14. One of the arguments that was advanced by learned Senior Advocate was that these judgments would not be having a binding effect in view of the fact that these judgment were not inter-party to the case in the present case. For this purpose it is relevant to mention here Section 43 of the Indian Evidence Act, 1872. Section 43 of the Indian Evidence Act, 1872 is reproduced here:
"43. Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant.- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.
(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him. B is convicted.
A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B. C, B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue."
15. After going though the aforesaid provisions, I find it to necessary to reproduce Sections 40, 41 and 42 of the Indian Evidence Act, 1872 also for consideration at the same time. The provisions are reproduced hereunder:
"40. Previous judgments relevant to bar a second suit or trial.-The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction.- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof -
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment 1[order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. - Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state."
16. Upon a bare reading of aforesaid provisions, it is clear that those orders other than those mentioned under Section 40, 41 and 42 are irrelevant unless the existence of such judgment and decree is a fact in issue.
17. Relevancy of a fact qua judgment as has been referred to under Section 42 makes a judgment binding only when they are in public nature relating to the inquiry but shall not be conclusive of what it states. Section 41 of Indian Evidence Act prescribes for relevancy of certain judgments in probates cases, matrimonial and admiralty or insolvency jurisdiction when a declaration of a legal character absolutely becomes binding where title of such persons is relevant.
18. Thus upon coin-joint reading of the above three provisions Sections 41, 42 and 43 it becomes absolutely clear that judgment if decides an issue, it becomes relevant for the purpose of determining same issue in another case qua status of litigant and in such eventuality judgment would be having a binding effect as to the title of a person, if declared absolutely.
19. In the present case I find that the plaintiff whose character was of a public charitable trust in question had been party to a suit instituted under Section 92 of C.P.C. which itself established that it was a charitable trust. The other proceedings that were drawn in respect of the tenancy issue, there also it was for this legal character that judgment was passed. In Case No.- 35 of 1973 in fact issue determined was, whether the present plaintiff who was plaintiff in that case also, was a charitable trust and it was held that it was a charitable trust. This fact is relevant in issue here also and so the earlier judgment becomes relevant here also.
20. The question now arises as to whether the defendant has been able to rebut these valid presumptions based upon the orders passed by the competent court of law. In his testimony that was recorded by the Court, if the petitioner has not been able to demonstrate by any of his statements that he substantially any evidence before the Court which could not be disputed or could be said to sufficient enough for that matter to dispute the character of the institution of the plaintiff, he can question that earlier judgment disclosing character of a body/ party was not relevant.
21. In such circumstances therefore, I do not find any fault with the findings and merely because they do not refer to Section 3 (r) & (s) specifically, as such findings are not liable to render bad. What Section 3 (r) and 3 (s) provided and described are only the character of an institution, association or organization. If in a returned findings by a competent court of law it has come to be established that particular establishment, organization or institution was a trust that itself was sufficient to take it out of the purview of Act No.- 13 of 1972.
22. I therefore do not find findings returned by courts below in question to be perverse in any manner. Since I am not able to convince by the submissions made by learned Senior Advocate on the score the findings returned that character of the plaintiff is a public charitable trust, I hold likewise that judgment of affirmation passed by the court sitting in revision is not bad.
23. Petition lacks merit and is, accordingly, dismissed.
Order Date :- 17.10.2024 Atmesh