Madras High Court
The Sathyanarayana Charitable Trust vs C.H.Mahesh Kumar Reddy on 16 August, 2012
Equivalent citations: AIR 2013 (NOC) 93 (MAD.)
Author: P.Jyothimani
Bench: P.Jyothimani, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.8.2012 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MR.JUSTICE P.DEVADASS O.S.A.No.201 of 2012 The Sathyanarayana Charitable Trust rep. by its Managing Trustee K.R.Purushotham No.1, Sathyanarayana Avenue Boat Club Road, Chennai 600 028. .. Appellant Vs. 1.C.H.Mahesh Kumar Reddy 2.C.Suresh Kumar Reddy 3.Ch.Umesh Kumar Reddy 4.Ch.Premalatha .. Respondents Prayer: Appeal against the order passed by the learned Single Judge dated 19.9.2011 made in Application No.3645 of 2011 in O.P.No.314 of 2004 For Appellant : Mr.K.Harishankar For Respondents : Mr.S.V.Jayaraman, Sr. Counsel for M/s.V.Ravi J U D G M E N T
P.JYOTHIMANI,J.
This appeal is filed by the petitioner in the Original Petition against the impugned order passed by the learned Single Judge in the application filed by third parties, who are the grandchildren of the author of the trust, in impleading them as parties to the Original Petition.
2. The appellant has filed the Original Petition under Section 7 of the Charitable and Religious Trusts Act, 1920 before this Court seeking sanction for sale of a house and ground at No.58 (Old No.50), Poes Garden, Chennai 600 086, and to direct deposit of the sale proceeds in approved government securities fetching income.
3.1. A thumbnail sketch of the facts essential for disposal of the instant appeal is as under: Ch.Sathyanarayana by a deed of declaration of trust dated 5.6.1968 has created a public charitable trust for the relief of the poor, advancement of education, medical relief and other objects of general public utility by handing over a sum of Rs.5,000/-. He appointed (i) Ch.Balamoney (his wife); (ii) K.R.Purushotham (his son-in-law); and (iii) Mr.Ch.Sathyanarayana (himself) being the author, as the first trustees. Admittedly, the said Ch.Balamoney and the author of the trust Ch.Sathyanarayana left this vale of tears and even during the life time of the author he had three daughters and two sons and he has chosen to make his son-in-law, K.R.Purushotham, only as the first trustee.
3.2.The objects of the trust are charitable in nature, to wit, to establish, maintain, run, develop, improve, extend, grant donations for and to aid and assist in the establishment, maintenance, running, development, improvement and extension of general and technical education, industrial, technical or other art, craft and science, schools and institutions or seats of learning and of all kinds of educational institutions of general, technical, professional or of any other description. Apart from the above, the objects include to establish, maintain, run, develop, improve, extend, grant donations for and to aid and assist in the establishment, maintenance, running, development, improvement and extension of libraries, reading rooms, recreation centres; to provide medical relief in its most comprehensive sense, including maintenance and running of hospitals, nursing homes, etc.; and to do all such acts in addition to and in furtherance of the said objects.
3.3. It is in pursuit of the said objects, the author of the trust has empowered the trustees to borrow from time to time money at such interest for such period with or without security of the movable or immovable properties; to acquire, purchase, hold, take on lease or hire any property, buildings, lands, securities, shares and any other movable or immovable properties and to sell, mortgage, pledge, let on lease or hire or otherwise dispose of the said properties, etc. Ergo, under the said provision, the author has empowered the trustees to sell any of the properties of the trust in furtherance of the object of the trust.
3.4. In Clause 8(b) of the trust deed, in addition the author has empowered the trustees to sell or convert the property of the trust, if in the opinion of the trustees, the value of the property is deteriorating. Clause 8(b) of the trust deed is as follows:
"8(b). If, in the opinion of the Trustees, any property belonging to the Trust is deteriorating in value or is not yielding any reasonable income of if in their opinion a sale or conversion of such property into property of another kind would be advantageous to the Trust, the Trustees may sell such property and invest the proceeds in the manner herein provided."
3.5. The author of the trust Ch.Sathyanarayana has also executed a Will dated 19.6.1968, in which he has appointed his son-in-law K.R.Purushotham as his Executor, permitting him to take charge of all his properties; pay all taxes; and empowering him to sell and realise the properties. By the said Will, the testator has bequeathed one of the properties, to wit the house and ground bearing No.3, Sathyanarayana Avenue, Madras, and all his insurance policies to his second son Ch.Satish alias Sathyanarayana. In the Will, he has also bequeathed all his jewellery weighing 60= sovereigns to his granddaughter Vijayalakshmi.
3.6. In the Will, he has stated that the residue of the estate shall be given by the Executor to the Sathyanarayana Charitable Trust created by him under the trust deed, stated above, and thereafter, the properties shall be taken by the said trust for the purpose and object for which it was established. The said Will of the testator was probated before this Court in O.P.No.165 of 1972 on 21.7.1972.
3.7. The property bearing New No.58 (Old No.50), R.S.No.1567/43B, Poes Garden belonging to the testator remained as a residue, after fulfilling the desire of the testator Ch.Sathyanarayana by the Executor in accordance with the Will. After the demise of the said Ch.Sathyanarayana and his wife, who were the first trustees apart from the son-in-law K.R.Purushotham, the said K.R.Purushotham has also nominated two senior advocates as trustees as per the terms of the trust deed.
3.8. The trust having found that the said property, which is a residue of the estate of Ch.Sathyanarayana, is 80 years old and not fetching any rent due to security reasons, as the same is situated opposite to the residence of the Chief Minister and at present occupied by the security force of the Chief Minister, and that for more than ten years the trust is not getting any income and the property is lying waste by non use, decided in the resolution dated 19.6.2003 to authorise the Managing Trustee K.R.Purushotham to seek permission of the Court under Section 7 of the Charitable and Religious Trusts Act, 1920 to sell the property. The valuation was estimated at Rs.4,83,42,000/-. It is with that averment the trust has approached this Court by filing O.P.No.314 of 2004 seeking permission by way of summary proceedings.
3.9. In the said petition, a Single Judge of this Court, by order dated 1.7.2011, having found that there was no response to the paper publication already effected, directed another publication to be effected in the name of the trust in Indian Express (All India Edition) and Dina Malar (Tamil Nadu Edition), indicating that the offers are to be submitted in the sealed covers addressed to the Assistant Registrar-I, Original Side on or before 29.7.2011 and that the Registry will scrutinize the same in the open court on 1.8.2011, during which time the offerers can be present in the court and interested parties can also be allowed to participate on request.
3.10. It appears that pursuant to the said publication, two offers were received, of course for a lesser market value than suggested by the valuer and a direction was given to improve the offer and the matter was adjourned to a subsequent date.
3.11. In the meantime, the respondents have filed Application No.3645 of 2011 to implead themselves as necessary parties in the Original Petition. The said third party applicants who filed impleading petitions are the legal heirs and grandchildren of Late Ch.Sathyanarayana, the author of the trust.
3.12. The learned Single Judge under the impugned order has allowed the application filed by the said third parties on the ground that being the legal heirs, they are interested parties and that is being challenged in this appeal by the petitioner in the Original Petition, contending inter alia that the decision arrived by the learned Judge under the impugned order is not only under the wrong notion that the learned Single Judge in the order dated 1.7.2011 and 2.8.2011 has not permitted the appellant to sell the property, but also on many other grounds, to wit:
(i)the respondents herein have already filed a suit in O.S.No.3648 of 2002 on the file of the I Assistant Judge, City Civil Court, Chennai for the relief that K.R.Purushotham was not entitled to enjoy the property of the trust for his individual benefit and also for a direction to render accounts and to furnish the names of the present trustees and the said suit was dismissed on 5.1.2006 as not maintainable for not obtaining permission from the Advocate General under Section 92 of the Code of Civil Procedure and that judgment came to be confirmed in the first appeal in A.S.No.443 of 2006 by the learned VI Additional Judge, City Civil Court, Chennai as early as in the year 2007 itself and the said judgment has become final and, therefore, the application for impleadment is hit by the principles of res judicata; and
(ii)that said suit filed by the respondents as well as the subsequent appeal have been decided on merits making it clear that the respondents are not entitled to any relief and the learned Judge while passing the order under challenge has not considered all the above relevant facts.
4.1. Mr.K.Harishankar, learned counsel for the appellant would submit that the respondents are neither proper nor necessary parties and the learned Judge except stating that they are interested parties has not chosen to consider that they are neither proper nor necessary parties. He would add that neither in the trust deed executed by the author nor in the Will executed by the same author, the third parties have any interest.
4.2. It is also his submission that when once the trustees are conferred with the power to sell the property of the trust, the trustees themselves are entitled to sell the property, but to make the sale as more proper, bona fide and transparent, the trustees have resolved to approach the High Court by filing the Original Petition and in fact, the High Court on the Original Side by exercising all due process, including effecting publication, has taken steps to sell the property after having been satisfied about the procedure followed and, therefore, the impleaded parties cannot find fault with such steps.
4.3. It is his submission that, in fact, the Original Petition has been filed by the trust after being satisfied that the property remains waste and by sale it would fetch better income to the trust and the sale has become a necessary event and, therefore, no fault can be found with the sale sought to be effected by the trust by approaching this Court on the Original Side.
4.4. He would rely upon the decision in Pawan Kumar Gupta v. Rochiram Nagdeo, 1999-2-LW 669 and submit that the res judicata will not apply only in cases where the earlier suit was dismissed on the ground of maintainability. It is his submission that in the present case the dismissal of the earlier suit is not on the ground that the Court had not jurisdiction, but the dismissal was due to the procedural lapse of not obtaining permission from the Advocate General and, therefore, in such circumstances, the finding given by the civil Courts in the suit as well as the appeal filed by the respondents on merits cannot be said to be extraneous, since there is no inherent lack of jurisdiction on the civil Courts which have already passed judgments against the impleaded parties.
4.5. He would also refer to the provisions of the Charitable and Religious Trusts Act, 1920 which not only enable the trustees to sell the properties, but also empower them, on their subjective satisfaction, to sell any of the properties of the trust, if the value of the property is deteriorating.
5.1. Per contra, to support the impugned order, Mr.S.V.Jayaraman, learned Senior Counsel for the respondents would submit that at this stage there is no necessity for any one to go into the merits of the matter as to whether the sale is being properly done or not. According to him, the impugned order is a simple order of impleading the third parties who cannot be said to have any interest over the properties, for the reason that admittedly they are the grandchildren of the author of the trust.
5.2. He would submit that when once the requirement under Section 92 of the Code of Civil Procedure has not been followed by the respondents in the suit filed by them, since the said requirement is mandatory in nature, the judgment given by the trial Court as well as the first Appellate Court cannot be said to be complete and it is to be taken that the judgment is totally without jurisdiction and, therefore, any finding on merit cannot operate as res judicata against the third parties. To substantiate his contention, he would rely upon the decisions in Anbiah and others v. Rev.J.George Robinson and others, AIR 1992 Madras 265 and Sulegai Dodda Narayana Sa v. A.Hanumanthappa and others, AIR 1953 Mysore 25.
5.3. It is his further submission that the appellant is not at all affected by the order and after impleading the respondents the Original Petition can be proceeded with and orders can be passed on merits and Section 92 of the Code of Civil Procedure is not a bar and according to him, the present stage is a premature and one has to look into the larger interest of the trust.
6. We have heard the learned counsel for the appellant as well as the learned Senior Counsel appearing for the respondents and have referred to the various provisions of the trust deed, apart from the Will and other documents, besides perusing the the impugned order of the learned Judge.
7. First off, the finding of the learned Judge in the impugned order as if the earlier orders dated 1.7.2011 and 2.8.2011 passed by the learned Singe Judge has not permitted the appellant to sell the property is incorrect. In fact, in the earlier order dated 1.7.2011, which has been extracted by the learned Judge, which reads as follows:
"There were no offers in response to the paper publication already effected. Therefore, the petitioner shall effect one more paper publication clearly indicating the cause title, name of the O.P. and the name of the Trust, in one edition of Indian Express (All India Edition) and one edition of Dina Malar, Tamil Nadu Edition, on or before 15.07.2011. The paper publication shall indicate that the offers are to be submitted in sealed covers addressed to the Assistant Registrar I, Original Side, on or before 5 p.m. on 29.7.2011 in the Office of the Assistant Registrar I, Original Side, High Court, Chennai and that the offers will be scrutinised in open Court on 01.08.2011, when the offerers may be present in Court. The advertisement shall also indicate that inspection will be arranged on specified dates, if the interested parties inform the counsel for the petitioner in advance.
2. As and when the interested parties request for making an inspection, the counsel for the petitioner shall make a request to the Commissioner of Police, Greater Chennai to enable the interested parties to have an inspection of the property without any problem. The Commissioner of Police, upon receipt of any request from the counsel for the petitioner, on specified dates, facilitate the inspection of the property for the intending purchasers.", there is no direction denying permission to sell the property. What the learned Judge has stated was that a wide publication is to be effected so that all interested parties can partake.
8. Further, in the presence of a specific clause in the trust deed, to wit Clause 5(b), which is as follows:
"5(b) To acquire, purchase, hold, take on lease or hire any property, buildings, lands, securities, shares and any other movable or immovable properties and to sell, mortgage, pledge, let on lease or hire or otherwise dispose of the abovesaid properties and other properties belonging to the Trust.", one cannot come to a conclusion that there is any prohibition on the part of the trustees to sell the property. In fact, Clause 8(b) of the trust deed, extracted above, gives specific power to the trustees to sell the property, if in their opinion the value of the property belonging to the trust is deteriorating. It was in those circumstances the trust has filed the Original Petition specifically stating that inasmuch as the property is situated opposite to the residence of the Chief Minister and it does not fetch any income and is occupied by the security force of the Chief Minister and for nearly ten years the property is lying waste, for better utilization of the trust, it is necessary to sell the property and with that desire, in fact, the board of trustees have passed a resolution on 19.6.2003. The necessary averment in this regard in the Original Petition is as follows:
"4. After the death of C.H.Sathyanarayana and his wife Balamony, Two Trustees were co-opted and both are Senior Advocates of this Hon'ble Court. Two other Trustees are from the family of the said K.R.Purushotham, (one of the first Trustees appointed by the Trust). The trust could not effectively function for want of income and settlement of the dues of late C.H.Sathyanarayana. Only recently, the first Trustee Mr.K.R.Purushotham got donations to carry out the objects of the Trust. The residue of the estate of C.H.Sathyanarayana includes a house and ground at No.58, (Old No.50), Poes Garden, Chennai 86 and more fully described in the schedule to the petition. This property is eighty years old and not fetching any rent as it has become a vulnerable property in terms of security, as the Chief Minister of Madras is occupying the opposite property. At present the said property is not in occupation of any persons, but the security force of the Chief Minister is occupying the entire area of the premises and hence the property cannot be rented out and it is also in a very dilapidated condition. For more than 10 years, the property is not getting any income and has become a waste by reason of non use.
5. In these circumstances, the Board of Trustees decided to sell this property and the income fetched on such sale should be deposited in approved Government Securities and the interest shall be utilised for the purpose of the Trust. The following resolution was passed by the Board of Trustees on 19.6.2003:
'In the meeting held on 10.9.1998, it was recorded that the building door No.50, Poes Garden is in a dilapidated condition and there are no funds available in the trust spend over Rs.10 Lakhs required for renovation. It was therefore resolved that the Managing Trustee is permitted to negotiate the sale of the property for a reasonable price.
The Managing Trustee reports to the Board that efforts to negotiate a sale visited with certain problems: They are:
i)The property is in a security area;
ii)Intending offerers require permission from Court for the sale of the property;
iii)No concrete offers were received setting out the price by the intending offerers.
The petitioner submits that on 19.6.2003 the following resolution was passed.
'It is therefore hereby resolved to authorise the Managing Trustee Sri K.R.Purushotham to seek permission of the Court under section 7 of the Charitable and Religious Trust Act of 1920.' The petitioner has obtained valuation report of this property and the value as estimated by the valuer is Rs.4,83,42,000/-. The petitioner seeks sanction of this Hon'ble Court to sell this property under Public Sale after due advertisement and at the best price."
9. Ergo, it is in accordance with the above said Clause 8(b) of the trust deed, the trustees have approached the Court and it is not in dispute that proper steps have been taken on the Original Side for effecting publication widely. Hence, no one can find fault with either the powers of the Board of Trustees to sell the properties or its power to sell the property in the event of subjective satisfaction of the deteriorating value of the property and, in fact, such reasons have been specifically stated in the Original Petition filed by the trust. Therefore, the contention of the learned Senior Counsel for the respondents as if without assigning any reason the property was sought to be sold in this Court does not hold water.
10. The next question is as to whether the respondents are barred by the principles of res judicata. As against the trust if a suit is to be filed under Section 92 of the Code of Civil Procedure, obtaining permission from the Advocate General is a condition precedent. In this regard, it is relevant to extract Section 92 of the Code of Civil Procedure, which is as follows:
"Section 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 bee 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 inquires;
(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 (20 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 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 cy pres in one or more 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;
(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."
However, without obtaining such permission the respondents have filed O.S.No.3648 of 2002 on the file of the I Assistant Judge, City Civil Court, Chennai for the relief stated above and the trial Court has dismissed the suit, which was subsequently confirmed in A.S.No.443 of 2006 as early as in the year 2007 and the same has become final. It is stated that now the respondents have filed necessary application under Section 92 of the Code of Civil Procedure seeking permission to file a suit and the same is pending.
11. The crucial issue to be decided is as to whether the finding rendered by the civil courts on the merits of the case should operate as a res judicata or not. Section 11 of the Code of Civil Procedure dealing with res judicata states as follows:
"Section 11. Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
12. The Civil Court in the first appeal while stating that the mandatory requirement of Section 92 of the Code of Civil Procedure has not been followed by filing the suit through the Advocate General or after obtaining leave of the Court, has further proceeded to say that as per Ex.A2 the trust deed filed before the civil Court, especially Clauses 15 and 16, the relatives of the author of the trust cannot be automatically appointed as trustees and, therefore, on merit it was held that the respondents herein have no right. The relevant portion of the order of the first Appellate Court in this regard is as follows:
"16. As far as the next question concerned, as per the trust deed which was marked as Ex.A-2. In Ex.A-2 Clause 15 and 16 clearly emphasised that what manner the trustee should be appointed and that condition not prohibited to appoint anybody as trustee hence the appointment of any person as trustee is not prohibited by the trust deed. As per the arguments of the learned appellant's counsel, relations should be appointed as trustee is not found in the trust deed. Hence that ground also the appellant arguments is not acceptable. Hence the trial court decided the issues in favour of the defendants and against the plaintiff does not require any interference. The point is answered accordingly."
13. The contention of Mr.S.V.Jayaraman, learned Senior Counsel appearing for the respondents is that when once the requirement of Section 92 of the Code of Civil Procedure has not been followed, any other finding given by the civil court even on merit has no legal value. In this regard, he placed reliance on a decision of a Single Judge of this Court in Anbiah and others v. Rev. J.George Robinson and others, AIR 1992 Madras 265. That was a case where there was a dispute in respect of the administration of a Church in Andarkulam, Kanyakumari District and its properties. The first plaintiff was a Pastor of the church and other plaintiffs were the elected deacons forming the Church Committee, with the first plaintiff as its Chairman, and the church and its properties were under the supervision of the Kanyakumari Diocese of the Church of South India (C.S.I.). After 456 churches were merged with the C.S.I. in the year 1947, all the properties of the churches, including the subject matter of the property therein, were transferred to C.S.I. There was an attempt by the first defendant along with defendants 8 and 9 to break-away from C.S.I. Claiming themselves as L.M.Christians, they filed 24 suits against C.S.I. demanding all 456 churches and properties for themselves. All the suits were dismissed. One such suit was O.S.No.1 of 1960 filed by the first defendant therein along with four others in the Sub Court, Nagercoil in representative capacity in respect of various properties and item No.9 was the disputed church property and that suit was also dismissed, holding finally that the same is in possession of the C.S.I. and not under the administration and possession of L.M.S. Society claimed by the defendants. When the defendants have again obstructed the C.S.I. Christians from worshipping, it was held in O.S.No.1 of 1960 that only C.S.I. is entitled to administer the church. It was with these pleadings the plaintiffs have filed a suit for declaration that they are entitled to the management of the church. The defendants in the suit have raised a specific issue that the decision rendered by the Court in O.S.No.1 of 1960 regarding the possession is without jurisdiction and incompetent and does not operate as res judicata. In the said suit, rejecting the contention of the plaintiffs that London Mission Churches and London Mission Christians have become the churches and members of the C.S.I., the case of the defendants that they have been validly elected office bearers was accepted. It has also rejected the plea of res judicata made by the plaintiff and the declaration suit was dismissed. However, the first Appellate Court has disagreed with the above said finding and held that the defendants claim is barred by res judicata in view of the finding in O.S.No.1 of 1960. It was in those circumstances, this Court has held that under Section 92 of the Code of Civil Procedure when leave of Court ought to have been obtained, any finding given by the Court in a case filed without obtaining leave will be deemed to be a court without jurisdiction. Therefore, allowing the second appeal, the learned Single Judge has held that the trial Court was correct. The learned Judge, in the said judgment, has also referred to a Supreme Court decision in Syed Mohd. Salie Labbai (Dead by L.Rs.) v. Mohd. Hanif (Dead by L.Rs.), AIR 1976 SC 1569, wherein for application of res judicata the following conditions have been prescribed:
"before a plea of res judicata can be given effect to, the following conditions must be proved:--
(i) that the litigating parties are the same;
(ii) that the subject-matter of the suit is identical;
(iii) that the matter was finally decided between the parties; and
(iv) that the earlier suit was decided by a Court of competent jurisdiction."
In the said judgment, the Supreme Court has held that the bar will apply only in cases where the earlier suit was decided by a Court of competent jurisdiction. In the present case, it is not even the case of the respondents that the earlier suit filed by them was in a court of incompetent jurisdiction. It is only the non filing through the Advocate General or non obtaining of leave that makes the court of competent jurisdiction not to entertain the suit. Therefore, a Court not entertaining the suit for not following the procedure under Section 92 of the Code of Civil Procedure cannot be held to be a Court of incompetent jurisdiction.
14. In fact, it is now admitted before us that the respondents themselves have followed the procedure under Section 92 of the Code of Civil Procedure for filing a suit. While so, we are unable to accept the contention of the learned Senior Counsel for the respondents that both the trial Court as well as the first Appellate Court lack inherent jurisdiction to decide the suit and appeal respectively. What was lacking was the technical procedure of non obtaining of permission required under Section 92 of the Code of Civil Procedure.
15. As correctly submitted by Mr.K.Harishankar, learned counsel for the appellant, the Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, 1999-2-LW 669, while referring to Section 11 of the Code of Civil Procedure, has held that it is a sound proposition of law that dismissal of a prior suit merely on maintainability does not operate as res judicata, but if the dismissal was on account of extinguishment of cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein will certainly operate as res judicata. The Supreme Court in categoric terms has held as follows:
"Thus the sound legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit."
This judgment of the Supreme Court makes it very clear that if the suit was dismissed only on the ground of maintainability, such finding does not operate as res judicata for filing a fresh suit, but in addition to that if a vital decision has been made, certainly the finding is binding, unless the plaintiff files any further appeal to set aside such finding. In the case on hand, the first Appellate Court in paragraph (16) of the judgment has gone into the merits of the case by referring to the trust deed and found specifically that there is no provision for the legal heirs of the author of the trust to be appointed as trustees and, therefore, in respect of the sale of the property, in our considered view, the respondents cannot be held to be either proper or necessary party.
16. It is trite that a proper party is a person who is necessary for the court to facilitate deciding the issue, while a necessary party is a person in whose absence any decision on the vital issue is impossible. Applying the same, we have no hesitation to hold that the respondents are neither proper nor necessary parties.
17. Moreover, Clauses 15 and 16 of the trust deed, which are as follows:
"15. The first Trustees shall hold office for their lives. Other Trustees, who may be appointed shall hold office for a period of three years from their respective dates of appointment unless by the terms of their appointment some other period if fixed.
16. The Trustees may at any time and from time to time appoint any person or persons as Trustee or Trustees to fill any vacancy in the Office of the Trustees or as additions to the existing Trustees provided the total number of Trustees shall not exceed the maximum of nine mentioned above."
do not enable the grandchildren of the author of the trust to be made as trustees automatically in case of vacancies and it is the ultimate decision of the trustees.
18. While so, it is not known as to what right the respondents have in respect of the properties of the trust, especially when the trust has followed the procedure contemplated under the supervision of the Court on the Original Side. Unfortunately, in the impugned order, the learned Judge has not chosen to advert to any of the requirements for a party to be impleaded, to wit whether he is a proper or necessary party. On the other hand, the learned Judge has chosen to state that because the respondents are related to the author of the trust, they are interested in the property. In our considered view, such stand cannot be accepted.
19. Further, the presence of the respondents is in no way helpful for the Court to decide the issue in the light of the specific averments made in the trust deed. It cannot be simply stated that on merits the Court can always decide at a later point of time and impleading need not be opposed. It is true that impleadment of parties need not be necessarily opposed at all times, but the impleadment must be on sound legal position and not for the purpose of making a party to be present in the Court, wherein he is neither a proper or necessary party.
For the foregoing reasons, the appeal is allowed and the impugned order passed by the learned Singe Judge stands set aside. No costs.
(P.J.M.J) (P.D.S.J.) 16.8.2012 Index : Yes Internet : Yes sasi P.JYOTHIMANI,J.
AND P.DEVADASS,J.
(sasi) O.S.A.No.201 of 2012 16.8.2012