Calcutta High Court
Smt. Mridula Sodhani & Ors vs Raj Kumar Daga & Ors on 7 January, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA NO. 3857 OF 2009
GA NO. 3307 OF 2008
CS No. 441 of 2002
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
SMT. MRIDULA SODHANI & ORS.
Versus
RAJ KUMAR DAGA & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 7th January, 2010.
Appearance:
Mr. Shakya Sen, Adv.
Mr. Sinha, Adv.
The Court : GA No. 3857 of 2002 is the plaintiffs' principal interlocutory application in the suit relating to a public charitable trust instituted with leave under Section 92 of the Civil Procedure Code.
GA No. 3387 of 2008 is the application by the defendants no. 5, 6 and 7 for revocation of leave obtained under Section 92 of the Code. GA No. 3252 of 2008 is an application by the plaintiff for amendment of the plaint with a prayer for deletion of the name of the defendant no.4 who has died some time in the year 2006.
The objects of the trust reveal that it was created for public charitable purpose. There is no dispute regarding the same. The plaintiffs claim to be the descendents of the settlor and say that the affairs of the trust have been mismanaged by the trustees. The plaintiffs have particularised the alleged acts of misconduct over nearly 20 pages of the plaint. The principal grievance appears to be in the trustees allegedly 2 inducting persons at the immovable properties of the trust against receipt of the illegal gratification.
The defendants no. 5, 6 and 7 say that the plaintiffs have no locus to maintain this action. They suggest that the plaintiffs do not have any interest in the trust within the meaning of the expression "having an interest in the trust" found in the opening limb of Section 92 of the Code. The applying defendants rely on a judgment reported at ILR 20 Cal 816 to suggest that the interest that is relevant for the purpose of obtaining leave under Section 92 of the Code would be an immediate interest and not a remote or a contingent interest. The applying defendants claim that notwithstanding the contents of the plaint the real grievance of the plaintiffs is not on account of alleged mismanagement of the trust but in the plaintiffs not being taken on board as trustees. The applying defendants refer to several paragraphs of the plaint including paragraphs 18 and 19 and the repeated assertion in the plaint that the plaintiffs are entitled and willing to be trustees but have not been accommodated by the defendants.
The applying defendants have also relied on a judgment reported at (2008)4 SCC 115 and have placed paragraphs 18 and 19 thereof. These defendants rely on the principle of law expressed in the decision that the plaint has to be assessed and it is to be gauged therefrom as to whether the suit has been instituted to harass the trustees. The Supreme Court has warned against trustees of public trusts for charitable and religious purpose being subjected to multiplicity of legal proceedings and the funds of such trusts being wasted on ruinous litigation.
The trust is undoubtedly for charitable purpose and the beneficiaries thereunder are the less fortunate followers of a particular religion. According to the applying defendants, the interest that is 3 required to be demonstrated for leave under Section 92 of the Code to be obtained has to be one where the plaintiff can demonstrate a right, say as a beneficiary of the trust. If such argument were to be accepted it would imply that only persons who are eligible to obtain charity would be entitled to complain. Since persons who are eligible to obtain charity may not have the means or the wherewithal to complain or would be unable to ascertain the functioning of the trust or would otherwise be more concerned with their next loaf of bread or a roof over their heads, they cannot be expected to be overly interested in the weighty matters of a trust created by a wealthy individual. The meaning of the word 'interest' would appear to be very constricted if the applying defendants' version therefor is applied.
The plaintiffs here claim to be the descendents of the settlor. The plaintiffs as such would have an interest in ensuring that the purposes and objects of the trust created by one of their ancestors were met and followed. The defendants have also given an impression that the affairs of the trust as complained of require to be investigated into. In claiming as such, the plaintiffs project themselves as public spirited individuals irrespective of whether they are descendents of the settlor. For the present purpose and before the suit ripens for trial there is sufficient interest which is apparent from the plaint warranting the suit to progress to trial. It will, however, be open to the applying defendants to urge the same grounds at the trial.
GA No.3307 of 2008 is disposed of as above without any order as to costs.
On the plaintiffs' main interlocutory application there is an order in terms of prayer (a) which has been subsisting. A Special Officer was appointed but it does not appear that there is any immediate need to continue the Special Officer. The Special Officer will stand discharged. 4
The allegation made against the defendants is that the assets and properties of the trust are mismanaged. The defendant nos.5, 6 and 7 have suggested that the plaintiffs have colluded with the defendant nos.1 to 3 to induct a tenant at a property and have otherwise taken steps contrary to the objects of the trust. The parties refer to a suit being CS No.819 of 2003 filed before the City Civil Court wherein a Receiver was appointed for the purpose of overseeing the trust properties.
The plaintiffs submit that the City Civil Court suit has been dismissed for default on December 21, 2009. It is insinuated by the plaintiffs that the City Civil Court was a sham fight between the trustees with a view to cause prejudice to the assets and properties of the trust.
The defendant nos.1, 2 and 3 appear to be supporting the plaintiffs. It is submitted on behalf of the defendant nos.1, 2 and 3 that since a Receiver had been appointed to oversee the trust properties, notwithstanding the dismissal of the City Civil Court suit, a Receiver should be appointed herein with a direction to take charge of all assets and properties of the trust.
Since the order on the plaintiffs interlocutory application has been subsisting from October 8, 2002 it is continued. There will be an injunction restraining the parties from dealing with or disposing of or encumbering or alienating any of the immovable properties of the trust except in the usual course of the activities of the trust. The trustees will, however, have liberty to otherwise deal with the properties subject to previous leave in such regard being obtained from Court upon notice to the plaintiffs.
GA No.3857 of 2002 is disposed of without any order as to costs. In GA No.2852 of 2008 the plaintiffs have sought amendment of the plaint by seeking to add a further relief and to embellish the particulars 5 that had already been furnished in the plaint. Such application is opposed by the defendant nos.5, 6 and 7 who say that there is no basis to the same.
Since no written statement has yet been filed, the amendments prayed for by the plaintiffs are allowed. It is also recorded that the fourth defendant has died and his name is deleted. There will also be an order in terms of prayer (c). The amendment should be carried out within a period of four weeks from the date of issuance of an authenticated copy of this order. Copies of the amended plaint should be served on the surviving defendants within a week from the date of the amendment being carried out. The defendants may file their written statements within a period of four weeks from the date of receipt of the amended copy of the plaint.
GA No.3252 of 2008 is allowed as above. There will be no order as to costs.
This order will, however, not preclude the trustees from taking appropriate steps for bona fide protection of the assets and properties of the trust. The trustees will also be at liberty to negotiate with the existing tenants for substantial increase in the properties let out since the increased income would accrue to the benefit of the trust.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) kc.
A.R(C.R)