Delhi High Court
Moolchand Kharaiti Ram Trust & Ors vs Rajani Kothari & Ors. on 29 August, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th August, 2017.
+ C.R.P. 59/2005
MOOLCHAND KHARAITI RAM TRUST & ORS ....Petitioners
Through: Mr. Shanti Bhushan, Sr. Adv. with
Mr. Gaurav Bahl, Adv.
Versus
RAJANI KOTHARI & ORS. ..... Respondents
Through: Mr. N.D. Pancholi & Mr. Amit
Srivastav, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) impugns the order (dated 5th November, 2004 in Suit
No.414/2003 of the Court of the Civil Judge, Delhi) allowing the application
of the respondents/plaintiffs under Section 92 of CPC and granting leave to
the respondents/plaintiffs to institute the suit under Section 92 of CPC.
2. The petition was entertained and notice thereof ordered to be issued.
3. During the pendency of this petition, the suit from which this petition
arises, was dismissed in default of appearance of the respondents/plaintiffs
and this petition was kept pending awaiting the restoration of the said suit.
The suit was restored but this petition continued to languish. Though there is
no interim order in this petition staying further proceedings in the suit but the
counsels inform that the suit has also not proceeded further.
4. The senior counsel for the petitioners/defendants and the counsel for
the respondents/plaintiffs have been heard.
C.R.P. 59/2005 Page 1 of 15
5. The seven respondents/plaintiffs instituted the suit, from which this
Revision Petition arises, in the Court of the Senior Civil Judge, Delhi
pleading (i) that they have an interest in Shri Moolchand Kharaiti Ram
Hospital & Ayurvedic Research Institute i.e. the petitioner/defendant No.1,
which is a Trust created for public purposes of charitable nature; (ii) that
while the respondents/plaintiffs No.1&2 are social workers and actively
engaged in promoting the cause and welfare of poor sections of society, the
respondents/plaintiffs No.3 to 6 are employees and office bearers of
Moolchand Khairati Ram Hospital and the respondent/plaintiff No.7 is the
Union of the employees of the said hospital; (iii) that the petitioner/defendant
No.1, a public charitable Trust, had been granted recognition under Section
80G of the Income Tax Act, 1961 and was granted land by the Government
of India through Ministry of Rehabilitation at a nominal price for
construction of a charitable hospital for the benefit of general public; (iv)
that Government of India, Municipal Corporation of Delhi and various other
institutions give the hospital set up by the petitioner/defendant No.1, grants,
donations and other reliefs from time to time; (v) that the said hospital was
providing free indoor and outdoor services to patients and though initially set
up to develop ayurvedic system of medicine, in the year 1967 introduced
Allopathy and gradually started running on commercial lines in violation of
the charitable purpose of the Trust; (vi) that the management of the
petitioner/defendant No.1 Trust had been following unfair, anti-people and
anti-labour policies and had placed under suspension about 26-27 employees
and later on terminated them.
6. For the present purposes, there is no need to elaborate herein further,
other facts pleaded in the plaint. Suffice it is to state that the reliefs of (a)
C.R.P. 59/2005 Page 2 of 15
removing the petitioners/defendants No.2 to 6 from the petitioner/defendant
No.1 Trust; (b) appointment of new trustees in place of the trustees so
removed; (c) vesting of all the properties and assets of the
petitioner/defendant No.1 Trust in the newly appointed trustees; (d) directing
the petitioners/defendants No.2 to 6 to deliver possession of the Trust
property to the new trustees to be so appointed; and, (e) of settling the
scheme of management of the petitioner/defendant No.1 Trust, were claimed
in the suit.
7. The suit was accompanied with an application under Section 92 of
CPC for leave of the Court to institute the suit, inasmuch as Section 92 of
CPC entitles either the Advocate General or two or more persons having an
interest in the Trust and having obtained the leave of the Court, to institute
the suit thereunder.
8. The learned Senior Civil Judge before whom the suit was presented
marked it to a Civil Judge.
9. The petitioners/defendants, on service of summons/notice of the suit
and the application aforesaid, filed their objections to the application under
Section 92 of CPC seeking leave of the Court. One of such objections was,
that the suit had not been brought before the competent court.
10. The learned Civil Judge, vide impugned order dated 5th November,
2004, granted leave to the respondents/plaintiffs to institute the suit under
Section 92 of CPC reasoning (I) that the suit had been instituted by more
than two persons alleging breach of trust and also showing prima facie case;
(II) that after going through the judgments cited by the counsel for the
respondents/plaintiffs and the counsel for the petitioners/defendants, the
respondents/plaintiffs were found to be having interest in the Trust and
C.R.P. 59/2005 Page 3 of 15
having locus standi to file the suit; (III) that the respondents/plaintiffs had
filed a copy of the report of the High Level Committee constituted by Govt.
of NCT of Delhi for Hospitals in Delhi to conduct an enquiry and a perusal
of the report of the said Committee prima facie corroborated the allegations
of the respondents/plaintiffs; (IV) that though the said report had been stayed
by the Supreme Court but therefrom, a prima facie case in favour of the
respondents/plaintiffs for grant of leave was found; (V) that though it was
also the contention of the petitioners/defendants that the Civil Judge was not
the principal Civil Court and not having jurisdiction to entertain and try the
suit and that only the Court of the District Judge is empowered to take
cognizance of the suit under Section 92 of CPC and had relied on Gangagir
Chela Vs. Rasal Singh AIR 1965 Punjab 472 but the respondents/plaintiffs
relied on Kt. N. Rm. Thenappa Chettiar Vs. N.S. Kr. Karuppan Chettiar
AIR 1968 SC 915 wherein the Supreme Court held that suit for breach of
trust or mismanagement on the part of trustees can be brought before a Civil
Judge; (VI) that similarly, in Prithipal Singh Vs. Magh Singh AIR 1982
Punjab 137, it was held that the suit under Section 92 of CPC can be
instituted both in the principal Civil Court of original jurisdiction as also in
any other Court empowered in that behalf by the State Government within
the local limits of whose jurisdiction the whole or any of the part of the Trust
is situated; (VII) that Section 92 of CPC does not envisage that such other
Courts are to be empowered by a gazette notification; (VIII) empowering by
a gradation and distribution which is prepared and published by the State
Government is sufficient compliance; (IX) that when such a list empowers
all Sub-ordinate Judges / Civil Judges to try such suits under Section 92 of
CPC, then in view of Section 15 of CPC, such suits should be instituted only
C.R.P. 59/2005 Page 4 of 15
in the Court of Sub-ordinate Judges / Civil Judges; (X) that per Section 15 of
CPC, every suit can be instituted in the Court of lowest grade competent to
try it; (XI) that the respondents/plaintiffs had valued the suit for the purposes
of court fees and jurisdiction at Rs.130/-; (XII) that Section 24 of the Punjab
Courts Act, 1918 also lays down that the District Court shall be the principal
Civil Court of original jurisdiction and as per the Delhi High Court Rules,
the Court of the Civil Judge was having original jurisdiction to try the suit
valued at Rs.130/-; (XIII) that the petitioner / defendant no.1Trust is also
situated within the jurisdiction of the Civil Judge, Delhi; (XIV) that thus the
Court of the Civil Judge has jurisdiction to entertain the present suit.
11. The senior counsel for the petitioners/defendants has contended that
his challenge to the order aforesaid is under three heads. Firstly, on the
ground that the Court of the Civil Judge is not the principal Civil Court of
original jurisdiction insofar as the city of Delhi is concerned. Secondly, that
the petitioner/defendant No.1 Trust is not created for public purpose of a
charitable or religious nature. Lastly, that the respondents/plaintiffs have no
interest in the petitioner/defendant No.1 Trust.
12. The senior counsel for the petitioners/defendants has been requested to
confine his submissions initially on the first of the aforesaid three challenges,
inasmuch as if the petitioners/defendants are to succeed thereon, then the
findings of the learned Civil Judge in the impugned order with respect to the
other two aspects would be of a Court having no jurisdiction and of no avail
and the need to go into the merits thereof or to set aside the same would not
arise. The counsel for the respondents/plaintiffs has also agreed thereto.
13. Section 92 of CPC entitles the Advocate General or two or more
persons having an interest in the Trust and having obtained leave of the
C.R.P. 59/2005 Page 5 of 15
Court, to institute the suit thereunder "in the principal Court of original
jurisdiction or in any other Court empowered in that behalf by the State
Government".
14. The question thus for adjudication is, whether the Court of the Senior
Civil Judge in which the respondents/plaintiffs instituted the suit is the
"principal Civil Court of original jurisdiction or any other Court empowered
in that behalf by the State Government".
15. I have invited attention of the counsels to my judgment in Rahisuddin
Vs. Gambit Leasing & Finance Pvt. Ltd. 2011 (176) DLT 696, though in the
context of Section 2(1)(e) of the Arbitration & Conciliation Act, 1996.
Section 2(1)(e) also defines "Court" as meaning the "principal Civil Court of
original jurisdiction in a district". On an interpretation of the provisions of
the CPC and the Punjab Courts Act, 1918 and referring to a host of
judgments, it was held that the Court of the Civil Judge is not the „principal
Civil Court of original jurisdiction in a district‟. Though the said Section
2(1)(e) also expressly provides that the word „Court‟ does not include any
Civil Court of a grade inferior to such principal Civil Court and which words
are absent in Section 92 of the CPC but the same would still not affect the
finding in the said judgment, of the Court of the Civil Judge being not the
principal Civil Court of original jurisdiction in a district.
16. I have invited the attention of the counsels to Section 134 of the Trade
Marks Act, 1999 and Section 62 of the Copyright Act, 1957 which provide
for the suits thereunder to be instituted in a Court "not inferior to a District
Court" and "in the District Court" respectively and to S. Dharmalinga
Nayakar Vs. D. Balasubramania Ayyar AIR 1937 Mad 94, Everest Pictures
Circuit, Salem Vs. S. Karuppannan 1981 SCC OnLine Mad 232, K.I.
C.R.P. 59/2005 Page 6 of 15
George Vs. C. Cheriyan AIR 1986 Ker 12, Citicorp Vs. Todi Investors
2006 SCC Online Del 1238, Sanjay Kumar @ Mallu Vs. Manoj Kumar
Sahu 2008 SCC Online All 50 (DB), Ganga Prasad Rawat Vs. M/s
Shivhare Pharmacy, Fatehpur 2012 SCC OnLine All 115, Reckitt
Benckiser Healthcare India Ltd. Vs. Emami Ltd. 2015 SCC OnLine Cal
121 and Guiness World Records Ltd. Vs. Sababbi Mangal (2010) 230 DLT
377 holding that the words „District Court‟ means the Court of the District
Judge and not the Court of the Senior Civil Judge or the Civil Judge, though
also generally counted in the District Court.
17. I may in this regard also mention that the District Court, insofar as the
city of Delhi is concerned, on the Civil Side, comprises of the following
tiers:
(A) District Judge;
(B) Additional District Judge;
(C) Senior Civil Judge; and,
(D) Civil Judge
with the maximum pecuniary jurisdiction of the Senior Civil Judge /
Civil Judge being upto Rs.3 lakhs and of the District Judge/Additional
District Judge being upto Rs.2 crores. Thus, the institution of the suits,
valuation whereof for purposes of jurisdiction is upto Rs.3 lakhs is before the
Court of Senior Civil Judge, who either keeps the suit with himself or
assigns it to the Court of any Civil Judge and of the suits, valuation whereof
is more than Rs.3 lakhs but upto Rs.2 crores is before the District Judge, who
either keeps the suit with himself or assigns it to any Additional District
Judge.
C.R.P. 59/2005 Page 7 of 15
18. The senior counsel for the petitioners/defendants to canvass that the
„principal Civil Court of original jurisdiction‟ is the Court of the District
Judge, has drawn attention to Sections 18, 20, 21, 24 & 30 of the Punjab
Courts Act, 1918 which are as under:
"18. Classes of Courts.- Besides the Courts of Small Causes
established under the Provincial Small Cause Courts Act, 1887,
and the Courts established under any other enactment for the
time being in force, there shall be the following classes of Civil
Courts, namely :-
(1) The Court of District Judge;
(2) The Court of Additional District Judge;
(3) The Court of Civil Judge (Senior Division); and
(4) The Court of Civil Judge (Junior Division)
19. .....
20. District Judges.- The State Government shall after
consultation with the High Court, appoint as many persons as it
thinks necessary to be District Judges, and the High Court shall
post one such person to each district as District Judge of that
District;
Provided that the same person may, if the High Court
thinks fit, be appointed to be District Judge of two or more
districts.
21. Additional District Judges.- (1) The State Government
may after consultation with the High Court, also appoint as
many persons as it thinks necessary to be Additional District
Judges, and the High Court may post an Additional District
Judge to exercise jurisdiction in one or more courts of the
District Judges.
(2) Additional District Judges shall have jurisdiction to deal
with and dispose of such cases only as the High Court, by
general or special order, may direct them to deal with and
dispose of or as the District Judge of the District may make
over to them for being dealt with and disposed of:
C.R.P. 59/2005 Page 8 of 15
Provided that the cases pending with the Additional
District Judges immediately before the 28th day of June, 1963,
shall be deemed to be cases so directed to be dealt with or
disposed of by the High Court or so made over to them by the
District Judge of the District as the case may be.
(3) While dealing with and disposing of the cases referred to
in sub-section (2), an Additional District Judge shall be deemed
to be the Court of the District Judge.
21.A. .....
22. .....
23. .....
24. District Court to be principal Civil Court of original
jurisdiction.- The Court of the District Judge shall be deemed
to be the District Court or principal Civil Court of original
jurisdiction in the District.
25. ......
26. ......
27. ......
28. ......
29. .......
30. Exercise by [Civil Judge (Senior Division) and Civil
Judge (Junior Division)] of Jurisdiction of District Court in
certain proceedings.- (1) The [High Court] may by general or
special order authorise any [Civil Judge (Senior Division) and
Civil Judge (Junior Division)] to take cognizance of, or any
District Judge to transfer to a [Civil Judge (Senior Division)
and Civil Judge (Junior Division)] under his control, any of the
proceedings next thereinafter mentioned or any class of those
proceedings specified in such order.
(2) The proceedings referred to in sub-section (1) are the
following, namely :-
(a) Proceedings under the India Succession Act, 1865
(X of 1865), and the Probate and Administration Act,
C.R.P. 59/2005 Page 9 of 15
1881 (V of 1881), which cannot be disposed of by the
District Judge.
(b) [-]
(3) The District Judge may withdraw any such proceedings
taken cognizance of by or transferred to a [Civil Judge (Senior
Division) and Civil Judge (Junior Division)] and may either
himself dispose of them or transfer them to a Court under his
control competent to dispose of them.
(4) Proceedings taken cognizance of by or transferred to a
[Civil Judge (Senior Division) and Civil Judge (Junior
Division)] as the case may be under this section shall be
disposed of by him, subject to the rules applicable to like
proceedings when disposed of by the District Judge."
19. Though the counsel for respondents / plaintiffs has not so contended
but for completeness I may mention that this Court in Shafiq Ahmed Vs.
Shah Jehan Begam 1981 Rajdhani Law Reporter 364 held that the Punjab
Courts Act continues to apply to Delhi.
20. Thus, as per the senior counsel for the petitioners/defendants, in terms
of Section 24 of the Punjab Courts Act, the Court of the District Judge is
deemed to be the District Court or the principal Civil Court of original
jurisdiction insofar as the city of Delhi is concerned. Now, of course with
the division of Delhi into several Districts, for each of District, the Court of
the District Judge is the principal Civil Court of original jurisdiction in that
District.
21. However, since in Delhi, vide Section 5 of the Delhi High Court Act,
1966, the High Court of Delhi also exercises ordinary original civil
jurisdiction, in suits, value of which exceeds Rs.2 crores, for such suits, the
principal Civil Court of original jurisdiction is the High Court of Delhi.
C.R.P. 59/2005 Page 10 of 15
22. The senior counsel for the petitioners / defendants has next referred to
Kt. N. Rm. Thenappa Chettiar supra on which the learned Civil Judge in the
impugned order has based his decision and has contended that though the
suit under Section 92 of the CPC subject matter thereof was instituted in the
Court of the Subordinate Judge in Tiruchirappalli district but there is no
discussion in the said judgment on this aspect and the same cannot thus be a
precedent for holding that the Court of the Subordinate / Civil Judge is the
Principal Civil Court of Original Jurisdiction within the meaning of Section
92 of the CPC.
23. The senior counsel for the petitioners / defendants has then referred to
Prithipal Singh supra of the High Court of Punjab and Haryana also relied
upon by the learned Civil Judge in the impugned order and has contended
that the finding therein of the Sub-ordinate Judges having jurisdiction to
entertain suits under Section 92 of the CPC is based on the gradation and
distribution list of officers of the Judicial Department of Punjab issued by the
Punjab government and para 7 of which list specifically dealt with the power
to hear suits under Section 92 of the CPC and it was mentioned therein that
the powers are exercised ex officio by all Sub-ordinate Judges in the State of
Punjab. It is further pointed out that the contention therein that the gradation
list cannot take the place of a specific gazetted notification by the
government was negated reasoning that the gradation list and its contents
were prepared and approved by the government and it was a government
publication and was sufficient proof of the act of empowering by the
government of all Sub-ordinate Judges to receive the plaints and try the suits
under Section 92 of the CPC. The senior counsel for petitioners / defendants
has argued that the finding in this judgment of the Sub-ordinate / Civil
C.R.P. 59/2005 Page 11 of 15
Judges in Punjab being authorised to hear suits under Section 92 CPC is on
the basis of empowerment vide gradation and distribution list of officers of
Judicial Department of Punjab and not on the basis of the Court of Sub-
ordinate / Civil Judge being the principal Civil Court of original jurisdiction.
24. The counsel for the respondents / plaintiffs in this context contends
that the list of officers of the Judicial Department aforesaid issued by the
Punjab government would apply to Delhi as well. Reliance in this regard is
placed on Radhey Sham Sawhney Vs. Bawa Joginder Singh Bhalla 1969
(V) DLT 82 (DB) concerned with the entitlement of the Sub-ordinate Judges
in Delhi to entertain, try and dispose of suits under Order XXXVII of the
CPC and holding that the amendment made in Rule 1 of Order XXXVII of
the CPC by the Punjab High Court under Section 122 of the CPC did not, by
creation of a separate Delhi High Court, cease to operate in the Courts of the
Delhi District Judges and Sub-ordinate Judges in the Union Territory of
Delhi and that the amendment made by the Punjab High Court of Rule 1 of
Order XXXVII of the CPC cannot be held automatically nullified merely
because a separate High Court has been set up for the Union Territory of Delhi.
25. However, closer examination of the said judgment shows that Rule 1
of Order XXXVII of the CPC as amended by the Punjab High Court before
the setting up of a separate High Court for the Union Territory of Delhi itself
empowered the Sub-ordinate Judges of Delhi province to exercise powers
under Order XXXVII of the CPC. However, with respect to empowerment
under Section 92 of the CPC of a Court other than the principal Civil Court of original
jurisdiction to entertain and try a suit under Section 92 of the CPC, such
empowerment has to be by the State Government concerned and the
empowerment by the Government of the State of Punjab in the Judicial List
C.R.P. 59/2005 Page 12 of 15
mentioned in Prithipal Singh supra was not and would not be empowerment
of the Sub-ordinate Judges in Delhi. It is not as if the Judicial List supra was
applicable to the Sub-ordinate Judges in the province of Delhi also.
Moreover, though the High Court of Punjab till the setting up of High Court
of Delhi had jurisdiction over province / Union Territory of Delhi but the
government of the State of Punjab did not have jurisdiction over Delhi, to be
able to empower any other Court in Delhi to entertain and try suits under
Section 92 of the CPC. No merit is thus found in the contention aforesaid of
the counsel for the respondents / plaintiffs.
26. The counsel for the respondents / plaintiffs has also referred to Section
7 of the Delhi High Court Act, 1966 which is as under:
"7. Practice and Procedure in the High Court of Delhi - Subject to
the provisions of this Act, the law in force immediately before the
appointed day with respect to practice and procedure in the High Court of
Punjab shall with necessary modifications, apply in relation to the High
Court of Delhi and accordingly the High Court of Delhi shall have all such
powers to make rules and orders with respect to practice and procedure as
are immediately before the appointed day exercisable by the High Court of
Punjab and shall also have powers to make rules and orders with respect to
practice and procedure for the exercise of its ordinary original civil
jurisdiction:
Provided that any rules or orders which are in force immediately
before the appointed day with respect to practice and procedure in the
High Court of Punjab shall, until varied or revoked by rules or orders made
by the High Court of Delhi, apply with the necessary modifications in
relation to practice and procedure in the High Court of Delhi as if made by
that High Court."
and has contended that by virtue thereof, the Judicial List aforesaid of the
Punjab Government would govern Delhi as well.
27. I am afraid, not. The application vide the aforesaid provision is only
of Rules of practice and procedure applicable to the High Court on its
C.R.P. 59/2005 Page 13 of 15
Judicial Side and would not apply to the acts required to be done by the State
Government.
28. The counsel for the respondents / plaintiffs then referred to Sri
Jeyaram Educational Trust Vs. A.G. Syed Mohideen AIR 2010 SC 671 but
in which case also there was a notification issued by the Governor of Madras
in exercise of powers under Section 92(1) of the CPC, investing all courts of
Sub-ordinate Judges in the State of Madras with jurisdiction under CPC in
respect of suits relating to trusts created for public purposes of a charitable
and religious nature. There is no such notification in the present case.
29. The counsel for the respondents / plaintiffs has next referred to M. Ar.
Rm. M. Annamalai Chettiar Vs. Al. A.C.T. Solaiyappa Chettiar AIR 1935
Madras 983 but which, for the reasons aforesaid, would again have no
application as far as the city of Delhi is concerned.
30. The petition thus succeeds and it has thus to be necessarily held that
the Court of Civil Judge, Delhi is not a principal Civil Court of original
jurisdiction and has not been empowered by the State Government for the
purpose of Section 92 of the CPC and was incapable of entertaining the suit
under Section 92 and resultantly, incapable of granting leave to the
respondents / plaintiffs to institute the suit under Section 92 of the CPC.
31. The need to go into the other contentions urged by the senior counsel
for the petitioners / defendants is thus not felt.
32. The counsel for the respondents / plaintiffs states that liberty be
granted to the respondents / plaintiffs to institute a fresh suit.
33. Once it is held that the impugned order is not by a Court having
jurisdiction to pass the same, the respondents / plaintiffs, in law, would be
C.R.P. 59/2005 Page 14 of 15
entitled to approach the appropriate forum and there is no need for grant of
any liberty.
34. Axiomatically, the impugned order dated 5th November, 2004 is set
aside and the suit No.414/2013 filed by the respondents / plaintiffs
dismissed.
However, no costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 29, 2017 „bs‟/gsr..
(Corrected & released on 3rd October, 2017) C.R.P. 59/2005 Page 15 of 15