Karnataka High Court
Smt. Rathnamma vs B.A. Srinivasa Gupta And Others on 28 October, 1998
Equivalent citations: 1999(1)KARLJ577, 1999 A I H C 1870, (1999) 2 CIVILCOURTC 268 (1999) 1 KANT LJ 577, (1999) 1 KANT LJ 577
JUDGMENT
1. These two appeals arise from the judgment and order dated 13th of October, 1998 passed by XIII Additional City Civil Judge, Bangalore on I.As. I and IV filed in O.S. No. 10169 of 1998, dismissing I.A. I filed by the plaintiff for temporary injunction and allowing LA. IV filed by the defendants for vacating the ex parte injunction.
2. The facts of the case in a nutshell are:
The present plaintiff-appellant had filed the suit for a decree of permanent injunction restraining the defendants, their henchmen or their agents and servants from demolishing the temple of lord Eshwara as well as restraining them from putting up construction and from digging foundation as well as from changing the nature of the property etc., till disposal of the suit.
The plaintiff has stated that the property in dispute namely, Late Muniswamappa Choultry or Maestry Mariyappa Choultry comprises in its fold a temple of Lord Eshwara alleged to be situated on the land measuring one and a half acres bearing old Sy. No. 109 and new Sy. No. 67 situated at 4th Cross, Subedar Chatram Road, R.K. Puram, Bangalore 560009, which came to be known as Muniswamappa Choultry and that was Public Religious Endowment Trust for the development and maintenance of temple of Lord Eshwara. The plaintiff claimed the right to manage on the basis of some Will alleged to have been executed by Smt. Laxmamma as well as the Will as per Annexure-L to the plaint. The plaintiff alleged that the defendant by virtue of some documents of sale alleged, to have been executed by Smt. Saraswathamma and Sri Narayanappa who had been the tenants started interfering with the property of Lord Eshwara Temple. Therefore, the plaintiff filed the suit and by IA sought temporary injunction restraining the defendants from interfering with the property. On the notice being served to the defendants, the defendants filed the written statement as well as application for vacation of interim order which has been granted by the Trial Court at the time when the suit was filed. The matter was heard by the Trial Court. It appears that certain affidavits had also been filed on behalf of the plaintiff to show the existence of the temple. Any way, the Trial Court dismissed the application for temporary injunction on the ground that the property being the public charitable or religious trust, suit was barred as the procedure prescribed under Section 92 of the CPC was not followed and as such the suit was not maintainable. No doubt it recorded a finding that the defendants had failed to prove the source of their title to the suit schedule property. The Trial Court further observed that personally the plaintiff will not suffer if the injunction is not granted meaning thereby that if the temple is theirs and if it demolished the plaintiff will not be personally affected.
Feeling aggrieved by the judgment and order of the Trial Court, the plaintiff has come up in appeal before this Court.
3. I have heard Sri S.P. Shankar, learned Counsel for the appellant in both the appeals. It was urged that the Court below erred in opining that the suit in question was barred by Section 92 of the Code of Civil Procedure and on that basis Sri Shankar contended that the court below illegally refused to grant temporary injunction. Learned Counsel further submitted that there is prima facie case for determination that the case involves material question of fact and law to be determined and in order to sec that the suit may not be rendered infructuous, the Court below ought to have granted temporary injunction as there is a threat to demolish the existing temple and change the nature of the property in dispute. Further, if the injunction is not granted the suit may be rendered infructuous which may result in multiplicity of legal proceedings and as such the balance of convenience are in favour of the plaintiff-appellant and further defendants would not be affected if injunction is granted and suit tried expeditiously.
4. On behalf of the respondent it is contended by the learned Counsel Sri Ram Mohan Reddy, that if the property in question as per plaint allegation, has been the public charitable trust then the Civil Procedure Code provides a specific mode to be followed under Section 92 and all other modes are closed. Therefore, when the suit in question has been filed without taking recourse to the provisions of Section 92 of the CPC, the suit was rightly held to be not maintainable. Learned Counsel for the respondent fairly contended at one stage that there was no temple of Lord Eshwara and that the property in question is a charitable trust and that the same does not belong to the plaintiff.
So far as the affidavits filed by the plaintiff while passing the impugned order that the defendants are threatening to demolish the temple and change the nature of the suit schedule property are concerned, there was some dispute regarding the affidavits being served and for the time being it is withdrawn. Learned Counsel for the petitioner Sri B.V. Ramamurthy, assisting Sri. S.P. Shankar was fair enough to admit at one stage that by mistake copies of the affidavits were not served on the other side but only the memo was shown.
5. At the end of the arguments, it has been stated by the learned Counsel for the parties that instead of going on merits, this Court may deal with Section 92 of the Code of Civil Procedure and thereafter if the Court feels, it may pass an order directing parties to maintain status quo as regards the property in question and direct the Court below to decide the suit expeditiously. I have applied my mind to the contentions raised by the Learned Counsel for the parties. It is a settled principle of law that before granting the temporary injunction the Court has to examine whether the person claiming temporary injunction has made out a prima facie case and whether the balance of convenience lies in his favour. The Court also has to look into if injunction is not granted whether the consequences are such that the suit may be rendered infructuous because of the circumstances that may take place as a result of or on account of non-granting injunction. Prima facie case is not to be confused with prima facie title. In a series of cases it has been well-settled that prima facie case means a case which cannot be thrown out on technicalities such as the suit barred by limitation or the like. If the suit cannot be thrown out on technical grounds as not maintainable and if the suit is such that the disputed question of fact and law are involved no doubt they are required to be determined and answered after recording the evidence then it may be said to be a prima facie case. In the present case, the Trial Court opined that because of failure to follow the mandate of law under Section 92 of the CPC, the suit is not maintainable and on that ground held that there has been no prima facie case. So what is required to be decided in this case is whether the present suit was maintainable or not in view of the provisions of Section 92 of the CPC. Section 92 of the CPC reads as under:
"92. Public Charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purpose 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 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) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) setting a scheme; or
(h) granting such further or other relief as the nature of the case may require".
Section 92 of the CPC has to be read along with Section 9 of the CPC, which reads as under:
"9. Courts to try all civil suits unless barred.--The Court shall (subject to the provisions herein contained) have jurisdiction to try all the suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred".
6. A perusal of Section 92 of the Civil Procedure Code reveals that it deals with the suits of specific nature and the condition for applicability of Section 92 is that admittedly there must be a public trust of charitable or religious nature and the other condition for application is that cause of action for the suit must arise from the breach of any express or constructive trust. Breach of trust can be committed only by the Trustee or the Board of Trustees dealing with the property and cannot cover the case of third parties, etc. In a suit under Section 92 only the specific reliefs as per clauses (a) to (h) of Section 92, reproduced above, can be claimed. Clauses (a) to (g) are very specific and clause (h) provides for grant of such further or other reliefs as the nature of the case may require.
It means the main relief should be as per clauses (a) to (g) and other reliefs may be analogous or ancillary to the main relief as the nature of the case may require as provided under clause (h). Clause (h) has been the subject-matter of consideration in the case of Abdur Rahim v Syed Abu Mahomed Barkat Ali Shah. At page 18 their Lordships have observed as under:
"It is urged broadly on behalf of the respondents that all suits founded upon any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought, must be brought in accordance with the provisions of Section 92 of the CPC.
The short answer to that argument is that the Legislature has not so enacted. If it had so intended, it would have said so in express words, whereas it said on the contrary, that only suits claiming any of the reliefs specified in sub-section (1) shall be instituted in conformity with the provisions of Section 92, sub-section (1).
The reliefs specified in sub-sections (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words "further or other relief in clause (h) can be held to cover them. It is argued that the words 'such further or other relief as the nature of the case may require' must be taken not in connection with the previous clauses (a) to (g), but in connection with the nature of the suit, viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words "further or other relief must on general principles of construction be taken to mean relief of the same nature as clauses (a) to (g)".
Further, their Lordships cannot agree that the legislature intended to include relief against third parties in clause (h) under the general words "further or other relief. Their Lordships came to the conclusion that, inasmuch as the suit out of which the said appeal arose did not claim any such relief as is specified in sub-section (1), Section 92 and that section was no bar to the maintainability of the suit without the sanction of the Advocate-General and of the Court of the subordinate Judge.
7. Section 92 has been the subject-matter of consideration in the case of Bishwanath and Another v Thakur Radha Ballabhji and Others. Their Lordships of the Supreme Court have followed the dictum laid down in the case Abdur Rahim, supra and laid down in paragraph 7 at page 1046 as under:
"7. It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely (i) the trust is created for public purpose of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section, A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of Section 92 of the Code of Civil Procedure by the Privy Council in the case of Abdur Rahim, supra and by this Court in Pragdasji Guru Bhagwandasji v Ishwarlalbhai Narsibhai, on the ground that reliefs enumerated in Section 92 of the Code of Civil Procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of Section 92 of the Code of Civil Procedure -- Mukhda Mannudas Bairagi v Chagan Kisan Bhawasar.
8. In the case of Harendra Nath Bhattacharya and Others v Kaliram Das, their Lordships of the Supreme Court have laid down at paragraph 11 as under:
"The High Court was of the view that none of the reliefs claimed in the plaint brought it within the terms of Section 92. It is well-settled by the decisions of this Court that a suit under Section 92 is of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that direction from the Court are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section. Only then the suit has to be filed in conformity with the provisions of Section 92 of the Code of Civil Procedure. (See Pragdasji's case, supra). It is quite clear that none of reliefs claimed by the plaintiffs fell within the section. The declarations which were sought could not possibly attract the applicability of Section 92 of the Code of Civil Procedure. The High Court was therefore, right in holding that non-compliance, with that section did not affect the maintainability of the suit".
9. In the case of Syed Mohammad Salie Labbai (deceased) by L.Rs and Others v Mohd. Hanifa (deceased) by L.Rs and Others, vide paragraph 62, their Lordships of the Supreme Court have held as follows:
"That Section 92 of the Code applies only when there is any alleged breach of any express or constructive trust created for a public, charitable or religious purpose. It also applies where the direction of the Court is necessary for the administration of any such public".
These principles very clearly indicate that Section 92 applies to the cases where there is a case of admitted existence of public trust and there is a case of allegation to the effect that there is breach of trust and its terms either expressly or impliedly. Breach of the trust can be alleged to have been committed by the Board of Trustees or any of the trustees or there may be a case that there may be a trust but some direction of the Court was required to be given for administration of trust then relief of the kind mentioned in clauses (a) to (h) can be claimed. But where a suit does not fulfil the above requirements Section 92 cannot be applied.
10. So far as the present suit is concerned, the plaintiff has alleged that there is a public trust, and merely because there is a trust provision of Section 92 cannot be made applicable for the reasons that Section 92 is applicable to cases where there is allegation of breach of trust by the trustees or managing trustees or when there is any need to obtain certain direction from the Court for administration of such public trust. In the present case the plaintiff has got the right of management on the basis of certain Will. The case of the plaintiff is that the defendants-respondents are third persons who claim right to the property through certain persons namely Saraswathamma and Narayanappa who according to the plaintiff are the tenants of the land and the property belongs to the trust. Therefore they have sought temporary injunction against the defendant restraining them from putting up construction and from digging foundation and from changing the nature of the suit property till the disposal of the suit. However, there is no allegation that there is any breach of trust nor there is any allegation that they want to seek any direction. The relief claimed in the suit is one which does not come within the purview of clauses (a) to (h). Relief of permanent injunction has been claimed against third parties, who are not trustees. Therefore, mere allegation that the property is a public trust will not make Section 92 of the CPC applicable.
11. The Division Bench of this court in the case of Veerbasavaradhya v Devotees of Lingadagudi Mutt, has been pleased to observe in para 22 as under:-
"22. It was however next contended by Sri Sundara Swamy that the suit was not maintainable since the consent of the Advocate-General had not been obtained as required by Section 92 of the Code of Civil Procedure before it was instituted and that the plaintiffs had no right to institute the suit under Order 1, Rule 8 of the Code of Civil Procedure. The present suit is one for possession instituted by some of the devotees in a representative capacity for possession of the properties belonging to the trust. Section 92 is applicable only to those suits under which the reliefs claimed are those enumerated in Section 92. A suit for possession against a person who is not a trustee is not one enumerated in Section 92 vide the decision in Harendra Nath's case, supra. Hence, the consent of the Advocate-General was not necessary. It is no doubt true that the shebait or manager who is in charge of the administration of the properties belonging to a deity can institute a suit for recovery of possession of the same. That however, does not disentitle the devotees or worshippers who are interested in the deity in maintaining a suit on behalf of the entire body of devotees with the leave of the Court under Order 1, Rule 8 of the Code of Civil Procedure against an alienee of temple property alleging that the alienation is not binding on the deity. The principle that such thought is in the body of worshippers is recognised by Indian Courts. In Sri Veerabhadraswamy v Maya Kone, such a suit was held to be maintainable. In another decision of this Court in Poona Setty v B.N. Aradhya a suit filed in a representative capacity of persons interested in a religious or charitable trust for a similar relief was decreed by this Court. In the case of Mukhda Mannudas, supra, a suit against the transferees from the head of a mutt belonging to Vaishnava Bairagi community for declaration that property in their hands is trust property and for possession was held to be outside the scope of Section 92 of the Code of Civil Procedure and that the suit filed by the members of the Bairagi community who were interested in the mutt in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure was held to be maintainable. We, therefore, reject the contention that the present suit was not maintainable for the reasons mentioned above".
12. Reliance was also placed on behalf of the respondent on the decision of the learned Single Judge of this Court in the case of R. Krish-nappa Setty v Ramakrishnappa, wherein it was opined that suit for permanent injunction was not maintainable unless the provisions of Section 92 of the CPC had been followed. The facts reveal that:
The plaintiff has alleged that defendants 1 to 6 with a view to knock off the property and to make gain, created a so called trust deed dated 3-10-1981 calling themselves as self styled trustees. The said trust was created to alienate the property in favour of the seventh defendant by creating a lease deed.
Their Lordships have observed at paragraph 8 that the grievance of the appellant is with regard to the breach of the terms of the trust allegedly constituted by Venkatamma under her Will of 1902 and 1903 and on the plaint schedule property as being dealt with as if it is a private property and in violation of the objects of the trust, viz., the benefit to the community people.
The observations at paragraph 8 of the judgment reveal that the view which has been expressed by brother Hon'ble ABMJ of this Court has been in the context of the facts of that case. There the case pleaded was of breach of trust by the alleged trustee. In my opinion, the decision in the case referred to above by the learned Counsel for the respondent is of no help and assistance to the respondents.
13. Thus considered where the cause of action for the dispute is not of breach of trust by the trustees but cause of action is alleged to be some illegal act of the third party who is not a trustee, Section 92 would not apply. In the present case, the relief claimed is of temporary injunction against the defendants who are the third parties. The relief sought for is not covered by clauses (a) to (h) of Section 92 of the CPC, therefore Section 92 of the CPC would not apply to the present case. This is also not a case where any direction of the Court for administration is required and there has been no allegation of breach of trust nor breach of either express or implied terms of trust. That being the position, in my opinion, the Trial Court acted illegally and committed specific error of law in dismissing the plaintiff-appellant's application for temporary injunction as barred by Section 92 of the CPC.
14. No doubt the plaint averment and written statement disclose that the case involves question of fact and law which are required to be tried, investigated and decided and finding of fact need be recorded on merits. At this juncture, I must make it clear that there is no finding recorded by the Trial Court whether in favour or against the plaintiff. In the present case if injunction is not granted the temple of lord Eshwara is demolished and trees are cut, then public interest will suffer. Plaintiff may not suffer personally but definitely the deity and the trust will suffer. In the case of Kilhota Hollohon v Zachilhu, it has been laid down at para 51, page 455 that the purpose of interlocutory orders is to preserve in status quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.
15. Applying this basic principle, it appears to be a fit case to order temporary injunction. The parties to the litigation shall maintain status quo as it existed of the property in suit on the date of the suit and not to change its nature as well as not to cut the trees etc. Neither of the parties or their agents etc., will change the nature of the property. The parties desire that the Trial Court may dispose of the case expeditiously. In the interest of justice the Trial Court shall dispose of the matter at an earliest possible date as the pleadings are already completed, and not allow the suit to linger for generations to come. It is expected that the Counsel will co-operate and will not seek adjournment on frivolous grounds. The parties are directed to appear before the Court below on the date fixed by the Trial Court. They may inform the Trial Court that this Court has held the suit to be maintainable in the present form and it is not barred by Section 92 of the CPC.
Thus, both the appeals are allowed as above.
Let the copy of the operative portion of the order be made available to the Counsel for the parties within a week from the date of their application for certified copies.