Karnataka High Court
Varasiddi Vinayaka Seva Trust (R) vs Gangamma W/O Thimmaraya Gowda on 29 October, 2009
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
IN "ms HIGH COURT OF KARNATAKA AT BANCEALOREZ
DATED THIS THE 29'"! DAY OF ocToI3ER{,2IéQs'I<
BEFORE
THE HONBLE MR. JUSTICE :V'BM;>SRE._ENIV7AASE
Miscellaneous First Appsal :62810f'2;0'O'9«'{C'i? C)~ I
BETWEEN:
Sri. Varasiddi V'inayaka.," _
Seva trust (R),
No.33? & 338, Iom Ms;m~,. if
AP" Block, Na rI'di11i-- Lay0u__.t,--.
Bangalore;
R613. By ité--~1°ri{éi.de1§*I:; 'a V'
Sri.
[By Sri:"S; Senior Counsel and
Smt. Msnzata Ku}.ka,r ni, Advs.)
AM);
j...__... ,1
» » Galagafhrna,
was ..
"about 45 years,
-- A '=»'W/oI."ThIimmaraya gowda,
R/at, N0297, 10"' Main Road,
Nandini Layout,
j Baiigalore ~ 560 096.
" B. Ambareesh
S/0. Boregowda,
Aged about 54 years,
R/at, No.38, 10"? Main Road,
%
APPELLANT
:3 I.
'3
491 Block, Nandini Layout.
Bangalore ~« 560 096.
B. T. Rudresh.
S/o. Thimmegowda,
Aged about 57 years,
R/at, No.153, 101" Main Road,
4"' Block. Nandini Layout,
Bangalore M 560 096
Ravi H. C. V 2
S/o. Late H. M. Chiktfianna, '-
Aged about 26 years, L' .
R/at. 13"; Main Road, {I;_¥-'5"B1oV<:k.
Nandini Layout.'~~..y 'A :4
Bangalore --w 560"096.'p j.
Shashid}:1ar_.
Ageei abot1t'"45 years.'
R/_at,"~~ 14th «17.\_/_Iair1_P.oVa(f, .4_m Block,
Nandinzi
VBanga].o14e'>~.. A5{w'_O'*O9'8. ' '
Deyarajn, _ 2
_ . Aged 'about .48t'yea}s.
R/at, £4?-"..M_ain. Road, 49* Block,
y ' Nandini Layout,
Bvazigfllorg W 560 096.
= S1'£c1.T::.at=. A
Father name not known to plaintiff.
'L .A"gied maj or,
R/"at, 111?} Main Road. 43311 Block,
Nandini Layout.
Bangalore - 560 096.
Shivanna @ LIC Shivanna,
QC,
Aged about 55 years.
R/at, 91" Main Road, 41-" Block.
Nandini Layout.
Bangalore -» 560 096.
9. Mahadevaiah @ Cycleshop Mahadeva, '
Father name not known to plaintiff, '
Aged Major. _.
R/at, 10* Main Road, 4") Bieeie
Naridini Layout, 7 A
Bangalore -560 096. «.
- .,,.»'"Ri$S4PONi,;)EN'iS
{By Sri. D. Srinivasa I R9]
This Ml?'A filed grower; "f§u'le I. (r) of CPC
against the Qrder_'--dat§ed passed on I.A.No.}. in
O.S.No. 4498/ on the filefof th'e'42"d Addl. City Civil
and Sessic$ns_.J1iid'ge.. ,Bafr1ga1oiie.u'Rejecting the IA filed U / O.
39 Rules__1 'arid pf CFC 'i"or .5131.
This__ on for orders, this day, the
Court, delivered .t]'--1e following:
llll dUDGMENT
aggrieved by the order of the trial
Cotirt. dated 13w8~O9 in rejecting I.A.No.l and 2 filed
it Order 39 Rules 1 and 2 of CPC. has preferred this
appeal.
2. For the sake of convenience, parties are referred to
as they are referred to in the suit before the trial Court.
3. Brief facts ofthe case are :
The plaintiff has brought the suit.
seeking the following reiiefs :
{a} An order of V '~-p'ermanentf
restraining the dVefefn'dan--.ts, their" Vaigents,
men, s'upportte:r's' or or persons
claiming through--V"from in any
rr1an.ner_ Vimaking .g'a1'ata;.j_"«creating nuisance,
500 meters of suit
interfering with temple
ftsuit dispossess the plaintiff
1frorI1v.:Vth'e."'suitfscheduie premises and from
'iilegallyf"snatching away of keys of the
» "'re:rip1e_.
{1:)__}' Issue a permanent injunction restraining the
" rdefendants, their agents, men, supporters or
any person or persons claiming through or
under them from in any way interfering with
the ingress and egress of the devotees and
fié
trustees of the plaintiff Trust to and from-«.the
premises of temple and from
intimidating, abusing, insulting
and trustees ofplaintiff Trust. '_ .
{C} Award costs and V'-._gr:a'1it'; l"s-u't~r'r_i'
relief/reliefs as this'_Hon"'b_le Courtl"dee_n1s_l§ fit
to grant in the eire'Lnistance's._Ofitl31eease, in
the interest. justice "equity. l
4. The plaintiff along:l'withi_lthge 's'i1it' I.A.N0.l under
Order 39 151 CPC seeking
an OI'd€I::'_ tefJip_<:3lra_1'yl:'"injliinetion restraining the
defeiizdaiitsf men, supporters or any person
or perslcns iclairniiig or under them from in any
rnanrier making"galar.a, creating nuisance, etc. within the
"500 meters of suit premises and illegally
A'~interfering_with temple (suit premises) to dispossess the
plair_1tifi"froin the suit. schedule premises and from illegally
.l_%'sI1attthiVI'1g away of keys of the temple, and .f.A.N0.2 under
39 Rules 1 and 2 read with See. l5l CPC seeking
"an order of temporary igiiijuriction restraining the
6
defendants, their agents. men, supporters or any person
or persons claiming through or under them f1'orn"'---iii any
way interfering with the ingress and egress o{..tlfi'eVldeVoi:ees
and trustees of the plaintiff Trust C'
premises of temple and from ::threaten'i_I1g; --i_ntin1_i'datir?_g, if.
abusing, insulting of devotees andl'»--trust,ees:v"of plaintiff
Trust.
5. The trial Court.""p«ord.ere.dV" eineifgent notice to the
defendants.
6. response to the emergent notice
entered' Vgappearanloelftlilrotigh their Counsel, filed their
wri to-ngpstateinent andlza memo praying the trial Court to
perrnit""ithemg_ to the written statement as objections
Ef'fa..nd 2.
7 Court by impugned common order rejected
bot.h..l'.¢'~3l.Nos.l and 2. T he plaintiff challenging the said
C orders, preferred the above appeal.
$5'
8. When it was pointed out to the learned Counsel
appearing for the plaintiff W appellant that the appellant
cannot maintain a single appeal against the orders."p.assed
on l.A.Nos. 1 and 2. a memo was filed p1'ayi}"i'g' to
permit the appellant to confinemthe. appealllgagainsrt xthebf'.
order passed on l.A.No.I and perrnis--sion vVats'granLedagan_d
appeal was confined to the o1*der,pas.sodVo'h
9. T he case of the"".pl1aintif.-ifivslftiliel'plaintiff is a Trust
registered on 01--O2-91" 'unCler' tl'3;e'pV1fo§gis'1ons of the lndian
'FrustalAct, "and defendants 1 to 3 and
father of the trustees. The plaintiff is
thegfounderd trustee president. of the trust for life. He
priest for performing "pooja' in the temple. Suit
pr'oper'ty°"wasVv'not situated in a developed area. During
1988, i..he'p'laintiff by struggling hard, built, a small temple
cost. In 1990, he constructed a permanent
he-.trulot,ure, managing the affairs of the trust. He has paid
hdvlhetterment Charges to the Government. 1n the year 2005'
g.
he has Constructed a temple of Vinayaka, Lord and
Parvati with the heip of present trustees._.D_efenc!an'ts 2
and 3 were managing the books of aCcoL1nt;c,..;;n£f1"~the;f liajveg
not offered books for auditing1;.an(i:A'ft{3.i}'«e
the funds. They are not Vatte1icli'n$l'the
participating in the activitielsilof llhelllfather of
defendant No.4 has nominated
anyone for his post, the founder
trustee, of the trust, has
appointed. trustees on 25-12-02.
elefendants 4 to 9 and all of
them for the affairs of the tempie
anpcl;'t11reateni.nVgVlthe plaintiff, devotees, making gaiata,
abiisiingdjewrotees and trying to dispossess the plaintiff
administration and to snatch the keys.
Thue'refore,"".he is constrairiecl to institute this suit for
perrnalnent injunction with l.A.Nos. 1 and 2 seeking
Aterlnporary injunction as stated above.
10
amended and new trustees he ve been admitted and
amended trust deed has been registered on 6~7~.O9, The
plaintiff is no more a trustee and preside11t_.o_f4'_the4";trt1.st.
He is not Competent to file a suit on beh_a:lf...o:1'5.A_t'he trust.'
The new trustees admitted to the 1
parties to the suit. The jurisdictional"police ogigeneda
rowdy sheet against the plaiiiitilf activities.
With this they prayedA.__for suit.
11. Sri. S.P.§3heankar',"'*thev'learned Counsel for
Smt. i§13;i3liE~<a1'.ni--,_llvlrho-.af§pears for the plaintiff ~
appellant' the suit being one for bare
injunction;-«.V;jerrnission2.as contemplated under Sec. 92 of
at hallvv---required. The plaintiff being a founder
trtistee.Land.::President of the trust for life Cannot be
the trust, except for the reasons stated in
sub~C;'1ause (b) of Clause 30 of the trust deed. His
V"--l'_s1ib4f1*1ission is, laintiff havin not incurred an
. . Y
disqualification mentioned in the above ciause, is not
$5" '
I I
liable to be removed from the trust. The alleged removal of
the plaintiff from the trust is not in accordancegvv-i_th the
procedure contemplated either under the the
trust deed and there is no removal in the 'O:f'~lVav.?;'
submits, the trial Court failed to ;cor_1tside'r_t L
of the plaintiff in developing the and
alleged transfer of property of not the
property belonging and it is his
private property. for by the
plaintiff is it for the plaintiff to
Continuelto the trust and the temple,
and not only devotees who use to visit the
temple will tolirrepairable loss and thus, balance of
in favour of the plaintiff. Therefore. there
1_S'C?tI1lA c»o'm"rnitted by the trial Court in not considering
this as}'3eet"l of the matter and he prays for allowing the
aplpealand setting aside the impugned order and granting
order of temporary injunction as prayed in i.AtNo. 1.
12. Per Contra, Sri. T .N.Raghupati, for Sri. Sreenivasa
Murthy who appears for t.he defendants ~««~ respondents,
supporting the impugned order of the trial
the trial Court has considered each and every Vasdpect of. d'
the matter. It is only after finding
case made out by the halancggdii5$fi~.:,,eo'i't'venienCe
does not lie in his favzour to any
irrepairable loss, righriyfi 1 and 2. As
such, there§.is'tno. in the impugned
order, inv"itirig.Vi'iiterfe'r.enee.__ef Court. Therefore, he
praysfoi' disri1issa1po--f<V:th'e appeal and confirming the order
passed' bydthe'
13x._§' There' dispute between the parties that Sri.
'Varasidr«:ii.":\f1nayaka Seva Trust was registered on i--2--8E
of the Indian Trust Act. Sri. Mallaiah
was itsipfoudnder trustee and president of the trust for life.
Defenddants 1 to 3 and father of defendant No.4 are the
'trustees of the said trust. The temple and the deities
.
13
installed in the tempie are made by the joint efforts of all the trustees. The controversy between the parties is, whether Maliaiah continued to be the founder and president of the trust and is alone 1:___t"h_e administration and affairs of theyAtempEe'."'"?-he 2 and 3 who were maintaining the books'of'a1ecoi;ints'h_ave ' not offered books for auditing andjniisappiiopriated funds, they were not Irrievetings and participating in the and Mallaiah being the fourider to achieve the objects of six persons as trustees on 25.if2i--'02 by the p1aintiff:LSri. Mallaiah had; transferred"thefproperty standing in the name of the favour of wife and made an attempt to obtain ykiiiatxqt..iri._vt1i.Ae'-name of his wife and in View of objection ra'ised.«,_by~.t:he plaintiff, BBMP refused to effect the khata in Afbe narne of his wife and his name was rowdy sheeted by "'.the"jurisdictiona1 Pokice and hence, the defendants have t if '""rernoved him from the trust by invoking clause 30 of the %, temple or snatching away the keys of the temple from him. From this it is Ciear that Maiiaiah seeks of temporary injunction restraining defe'n'd:ir1ts- --fror'n_ dispossessing him from the suit"'property/tgernple Hand? restraining the defendants.
activities as founder trusteejiijand trust; but Maliaiah is not iindepei'ident1jyxiéfrglyedvyasiiarty to the suit.. Then the the suit of a trust trustee and presidentiis tlti-aim-flood against other trustees. If is granted, then other and 3 will be restrained from interfering .Vw<ith"the'V'affairs of the trust, which cannot be the defendants have produced materiai to .sho$_2i7 Mlailaiah was removed from the trust deed and new t:"ust'ees were admitted to the trust and amended "tru__stf'deed has been registered, without making those ti'-trustees as party to the suit, the suit by trust represented if if "by the alleged founder trustee and president of the trust is fii I6 maini.a1'r1_able. that too without Eeave of the Court as eontempiated under Sec. 92 of CPC are be considered at the time of trial.
16. Even if we accept the ease of.,ii.heup1ai.ntiff' not removed from the .»po__st o'f.v_'f'oui1c1e'r president of the trust and .e_ontir1ued toivfmanage the affairs of the trust president of the Trust as true,.sti11 of injunction against ustrurestraining them from i:uterfe1'i--n§gTvvi.th;'the trust. On this ground also. is ease in favour of the plaintiff and balance ofeoriv.e1i'ieiace does not he in his favour and be A'pu"t-~-to'irrepairabie loss. On the other hand, "-to 3 being the trustees and other new trushteesurisdier the amended trust deed who are not made as parties to the suit, will be put to irrepairable loss if an o.r_de'r of temporary inj1,1nCtion prayed by the piaintiff is . grant.ed.
&'