Karnataka High Court
Shri. Channabasappa S/O Basavanneppa ... vs Shri. Someshwar Devasthan Jeernodhar ... on 26 February, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1 CRP No.100042/2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 26 t h DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
CIVIL REVISION PETITION No.100042 of 2017
BETWEEN:
SHRI. CHANNABASAPPA
S/O BASAVANNEPPA YELIGAR,
AGE: 79 YEARS, OCC: BUSINESS,
R/O H.NO.34, 14TH CROSS
NAVODAYA NAGAR, DHARWAD.
... PETITIONER
(By Prof. A P MURARI ADV.)
AND:
1. SHRI. SOMESHWAR DEVASTHAN
JEERNODHAR SAMITI (TRUST)
R/BY ITS CHAIRMAN
SHRI BASAYYA SANGAYYA BALLARY
AGE: 49 YEARS, OCC: CHAIRMAN,
R/O LAKAMANAHALLI VILLAGE,
DHARWAD-580001.
2. THE STATE OF KARNATAKA
R/BY DEPUTY COMMISSSIONER,
DHARWAD-580001.
... RESPONDENTS
(By Sri.ANAND K.NAVALAGIMATH ADV. FOR R2;
R1-SERVED)
2 CRP No.100042/2017
THIS CRP FILED UNDER SEC.115 OF CPC, AGAINST THE
ORDER DATED: 12.03.2015 PASSED IN O.S. NO. 160/2010 BY
THE II ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS II COURT DHARWAD, BY REJECTING THE I.A. NO.
IV FILED BY THE DEFENDANTS.
This Petition coming on for Hearing in IA, this day the
Court made the following:-
ORDER
In this defendants' Civil Revision Petition, is challenged the judgment and order dated 12.03.2015 rendered by the learned II Additional Civil Judge and JMFC-II, Dharwad, in a pending suit in O.S. No.160 of 2010 whereby the defendant's application filed under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short 'CPC') seeking dismissal of the suit is rejected.
2. The first respondent's suit is in respect of a public Trust namely Sri.Someshwar Devesthan Jeernodhar Samithi (Trust). The relevant portion of relief column in the plaint is as below:
I) "Be it kindly declared that Shri Someshwar Devasthan Samiti (Trust) is the absolute owner 3 CRP No.100042/2017 of this agricultural land i.e., suit property. And this present Chairman Shri Basayya Sangayya Bellary is cultivating land of the trust property from the date of illegal sale, and the sale of the said suit schedule property is illegal;
..........................."
3. After notice, the private defendant i.e., the appellant herein entered appearance and filed his Written Statement inter alia contending that the suit as framed was not maintainable in view of the rigors of Section 92 of the Code of Civil Procedure, 1908 (for short 'CPC'). He had also filed an application in I.A. No.IV under Order VII Rule 11(d) of CPC seeking dismissal of the suit on the ground of maintainability. The said application is rejected by the impugned judgment and order.
4. The learned counsel for the Civil Revision Petitioner Prof.A.P.Murari, firstly contended that the suit as framed is not maintainable in view of the 4 CRP No.100042/2017 provisions of Sections 50 and 51 of the Bombay Public Trusts Act, 1950. The said Sections read as under:
"50. Suit by or against or relating to public trusts or trustees or others In any case,--
(i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-
trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,
(iii) Where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under subclauses (i) to (iii), or one or more such 5 CRP No.100042/2017 persons in case the suit is under subclause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following relief's:
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cy pres on the lines of section 56 if 6 CRP No.100042/2017 this relief is claimed along with any other relief mentioned in this section;
(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;
(j) the settlement of scheme, or variation or alteration in a scheme already settled,
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l) an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc;
(o) an order varying , altering, amending or superseding any instrument of trust;
(p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require which would be a condition 7 CRP No.100042/2017 precedent to or consequential to any of the aforesaid relief's or is necessary in the interest of the trust:
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof;
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled :
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under subsection (4) of section 1."
"51. Consent of Charity Commissioner for institution of suit.
(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may 8 CRP No.100042/2017 within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.
(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub- section (1) the persons applying for such consent may file an appeal to the Divisional Commissioner in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Divisional Commissioner in appeal under section 71, the decision of the Charity Commissioner under sub- section (1) shall be final and conclusive."
5. This Court on its own drew the attention of the learned counsel for the Civil Revision Petitioner to the decision of Principal Bench at Bengaluru in the case of Sri Sringeri Nelamau Samsthanam Vs. 9 CRP No.100042/2017 State of Karnataka and others, ILR 1998 KAR 1532, wherein the said Act has been struck down as unconstitutional and the operative portion of which reads :
"In the result, this petition succeeds and is hereby allowed, and the Bombay public Trust Act 1950, in its application to the State of Karnataka is struck down as unconstitutional. The respondents shall stand restrained from taking any steps or action against the petitioner trust on the strength of the provisions of the said Act."
6. The Judgment in Sri Sringeri Nelamau Samsthanam's case was taken in Writ Appeal Nos.489 and 429 of 1998. When this matter was pending for consideration by the Division Bench of the Court, the State Legislature enacted the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 which came into force w.e.f. 01.05.2003 and that the said Act has repealed the Bombay Public Trusts 10 CRP No.100042/2017 Act, 1950. The relevant portion of the repealing provision reads as under:
" 78. Repeal and Savings.-
(1) x x x (2) The following enactments namely:-
(a) The Bombay Public Trust Act, 1950 (Bombay Act No. XXIX of 1950);
xxx
(g) The Coorg Temples Fund
Management Act, 1956 (Coorg Act
VIII of 1956), are hereby repealed; "
7. When the attention of the learned counsel for the Revision Petitioner was drawn to the operative portion of the Judgment in Sri Sringeri Nelamau Samsthanam as to there being an injunction by the Court restraining enforcement of the provisions of BPT Act, he fairly conceded that the point of law urged by him is no longer res-integra and further that the same is liable to be rejected in view of the BPT Act, 1950 now no longer being on the statute book at all. The 11 CRP No.100042/2017 learned counsel, because of this development, gives up his contention so far as this issue is concerned.
8. The learned counsel for the Revision Petitioner next contended that going by the pith and substance of the plaint, the suit is by a public/religious charitable Trust inasmuch as the plaintiff's Trust was accordingly registered under the provisions of the Bombay Public Trusts Act as it then was. He also took the Court through the subject matter of the lis and the reliefs sought for by the plaintiff to show that the subject matter of the suit and the relief sought for therein in substance fall within the rigors of Section 92 of CPC and therefore, a regular civil suit could not have been filed bypassing the provisions of this Section whose subsection (1) reads as under:
" 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 12 CRP No.100042/2017 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 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 inquires;
(e) declaring what proportion of the trust property or of the interest 13 CRP No.100042/2017 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."
9. The learned counsel for the respondent- plaintiffs per contra contended that it has been settled legal position that as a normal rule of law, the Civil Courts have jurisdiction to try all suits of civil nature and that this jurisdiction of the Civil Courts under Section 9 of CPC 1908 can be liken to the plenary powers to try all suits which involve determination of any Civil right and further that the only requirement is: the dispute must be of a civil nature and its cognizance must not be prevented by any other instrument of law either expressly or by necessary implication. The counsel contends that the ouster of civil Courts jurisdiction cannot be readily inferred and 14 CRP No.100042/2017 therefore the arguments of the other side as to the ouster of the jurisdiction has to be considered very cautiously. The learned counsel in support of his submission relies upon AIR 1974 SC 1126 in the case of Ganga Bai Vs. Vijay Kumar which held as under:
"15. .......There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, however frivolous to claim that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit."
10. I have carefully considered the rival contentions of the learned counsel for either side. It is true that the jurisdiction of the Civil Courts under Section 9 of CPC, 1908 is all pervasive unless 15 CRP No.100042/2017 otherwise excluded. It is also true that the Courts will normally jealously repel the arguments on exclusion of the jurisdiction of the Civil Courts. But, here is a case relating to a public trust and in which the reliefs sought for by the plaintiffs' side are contemplated by the provisions of clauses (a) to (h) of sub-section (1) of Section 92 of CPC 1908, as interpreted by the Apex Court and this Court too. The suit of the nature now brought about by the plaintiffs falls within the four corners of Subsection (1) of Section 92 of CPC 1908. There is no much dispute about this factual position which can be ascertained from the plaint itself. Therefore, the contention of the respondents/plaintiffs cannot be favoured with acceptance.
11. Learned counsel for the revision petitioner next contended that the subject matter of the suit as is emerging from the pleadings i.e., the plaint alone has to be looked into to decide whether the suit of the description in Section 92 emerges from the pleadings 16 CRP No.100042/2017 and going by that proposition of law as laid down by the Apex Court in the case of Swami Paramanand Saraswati and Another Vs. Ramji Tripathi and Another, reported in AIR 1974 SC 2141, the suit itself is not maintainable and therefore, his application seeking dismissal of the suit under Order VII Rule 11(d) of CPC ought to have been allowed by the Court below.
12. The Revision Petitioner next contended that the civil suit in question has been filed in the Court of learned II Additional Civil Judge who lacks jurisdiction over the subject matter. He points out the text of sub-section (1) of Section 92 of CPC which employs the explanation "....in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government..." and submits that the Court in which the suit is filed by the respondent plaintiff does not 17 CRP No.100042/2017 answer the description of the Court mentioned in this Subsection.
13. The learned counsel for the respondent per contra contends that the Court of II Additional Civil Judge and JMFC-II, Dharwad, has jurisdiction over the subject matter. However, he could not elucidate his points by pointing out how he proximates the Court of Civil Judge to the Court of the description given by Section 92(1) of CPC. Therefore, the contention of the learned counsel for the revision petitioner is accepted and that of the learned counsel for the respondent is rejected.
14. For all the reasons stated above, I make the following order:
ORDER
(i) This Civil Revision Petition succeeds and the impugned judgment and order dated 12.03.2015 is set aside; and further, the plaintiff's application 18 CRP No.100042/2017 IA No.IV filed under Order VII Rule 11(d) of CPC seeking dismissal of the suit in OS No.160/2010 pending on the file of the II Addl.
Civil Judge and JMFC-II, Dharwad, is allowed and resultantly, the said suit is dismissed as being not maintainable;
(ii) Further, liberty is reserved to the plaintiff to institute appropriate proceedings before an appropriate forum in accordance with law;
(iii) Costs made easy.
Sd/-
JUDGE RK/-