Madhya Pradesh High Court
Munna Lal Sharma vs Babu Lal Sharma on 30 April, 2019
1
HI GH CO URT O F M ADHYA PR ADES H:J ABA LPU R
MA No.2280/2019
(Munna Lal Sharma & others Vs. Babu Lal Sharma)
Dated: 30.04.2019
Shri Sanjay Agrawal, learned counsel with Shri
Parag S. Chaturvedi, Advocate for the appellants.
Shri Navneet Dubey, learned counsel for the
caveator.
Heard on admission.
This appeal has been filed by the appellants/
defendants under Order 43 Rule 1(s) of CPC against
the order dated 11.4.2019 passed by the First
Additional District Judge, Panna in MJC No.33/2018
whereby on a reference made by the Registrar, Public
Trust, learned Judge of the lower Court has directed
to appoint a committee/receiver in respect of the
trust property.
A preliminary objection regarding
maintainability of the present appeal has also been
raised by the respondent to which learned counsel
for the appellants has submitted that they are not filing reply to the same, and has argued the matter on admission.
Learned counsel for the appellants has submitted that the appellant No.6 is a trust registered under the MP Public Trust Act, 1951, whereas the appellants No.1 to 5 are trustees.
Admittedly, respondent Babu Lal Sharma also happens to be one of the trustees of the respondent No.6/public trust, who had filed an application under 2 Section 26 of the MP Public Trust Act, 1951 (for short "Act, 1951") along with another trustee Raj Kumar Dubey before the Registrar, Public Trust Panna. In the aforesaid application filed under Section 26 of the Act, 1951 final order was passed on 25.4.2018 and other trustee Raj Kumar Dubey was directed to file appropriate application under Section 27 of the Act, 1951, which refers to Court's power to hear application.
Although, the aforesaid application under Section 27 of the Act, 1951 is still pending before the ADJ, wherein an application was filed by the respondent for appointment of an interim committee or receiver for better management of the trust. The said application was filed on 14.3.2019 and a detailed reply to the said application was also filed by the appellants herein and the learned Judge of the lower Court has passed the order on 11.4.2019 thereby a committee has been constituted for management of the trust, which includes Additional Collector, Panna, Sub Divisional Officer (Revenue), Panna and Tahsildar Panna. Being aggrieved of the said order dated 11.4.2019, the present appeal under Order 43 Rule 1(s) of CPC has been filed by the appellants.
Although learned counsel for the appellants has vehemently argued before this Court that the impugned order has been passed by the learned Judge of the lower Court without application of mind, but this Court does not find force with the said 3 arguments. At this juncture, it would be relevant to refer Section 27 of the Act, 1951, which reads as under:-
"27. Court's power to hear application.
- (1) On receipt of such application the Court shall make or cause to be made such inquiry into the case as it deems fit and pass such orders thereon as it may consider appropriate.
(2) While exercising the power under sub-
section (1) the Court shall, among other powers, have power to make an order for:-
(a) removing any trustee;
(b) appointing a new trustee;
(c) declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(d) providing a scheme of management of the trust property;
(e) directing how the funds of a public trust whose original object has failed, shall be spent, having due regard to the original intention of the author of the trust or the object for which the trust was created;
(f) issuing any directions as the nature of the case may require.
(3) Any order passed by the Court under sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court.
(4) No suit relating to a public trust under 4 Section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any Court on any matter in respect of which an application can be made under Section 26."
(emphasis supplied) A perusal of the aforesaid section reveals that according to sub-section (3) of Section 27 of the Act, 1951, which provides that any order passed by the Court under sub Section (2) shall be deemed to be a decree of such Court and an appeal shall lie there from to the High Court thus, if the impugned order, whereby a committee has been appointed for the management of the Trust is tested on the anvil of Section 27 of the Act, 1951, then the only conclusion which can be drawn is that against it only a first appeal would lie to the High Court under Section 96 of CPC as the appointment of a committee for the management of a Trust would squarely be covered under the purview of Section 27(1) of the Trust Act.
Although learned counsel for the appellants has submitted that for all the practical purposes the impugned order has been passed under Order 40 Rule 1 of CPC, hence only an appeal under Order 43 Rule 1(s) of CPC would be maintainable against the aforesaid order, but in the considered opinion of this Court the aforesaid provisions of CPC cannot override of Section 27 of the Act, 1951, which is a special provision and has an overriding effect.
Learned counsel for the appellants has also relied upon the order dated 10.1.2012 rendered by 5 the Coordinate Bench of this Court in the case of Shivnarayan Mahant Vs. Registrar, Public Trust passed in Misc. Appeal no.3927/2010 and has submitted that the aforesaid appeal was also filed under Order 43 Rule 1(s) of CPC against the order passed by the First Additional District Judge, Khandwa by exercising its power Section 27 of the Trust Act and had appointed a receiver on the property of the trust and in that case also an appeal under Order 43 Rule 1(s) of CPC was filed and entertained by this Court. Hence it is submitted that the present appeal is also maintainable.
A perusal of the aforesaid order reveals that indeed it has been passed while exercising the jurisdiction conferred under Order 43 Rule 1(s) of CPC, however this aspect of the matter that whether miscellaneous appeal would be maintainable or first appeal has not been even raised by any of the parties and the matter has been argued on merits without adverting sub-section (3) of Section 27 of the Act, 1951. In view of the same, in the considered opinion of this Court the aforesaid order of the Coordinate Bench of this Court in the case of Shivnarayan Mahant (supra) is of no help to the appellants and is clearly distinguishable on facts itself.
As a result this Court has no option left but to dismiss the appeal as having been not maintainable and accordingly the same is hereby dismissed. A liberty is reserved to the appellants to file an 6 appropriate appeal as provided under sub-section (3) of Section 27 of the Act, 1951.
The certified copy of the impugned order be returned to the learned counsel for the appellants and be replaced with a photocopy of the same on record.
(Subodh Abhyankar) Judge Digitally signed by MANZOOR AHMED Date: 2019.05.07 14:18:35 +05'30' Ansari