Karnataka High Court
Shri.Vanavasi Shri Ram Mandir Trust vs Shri.Raghavendra Sondur on 2 September, 2020
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
W.P. NO. 110619/2019 &
W.P. NO. 112354/2019 (GM-CPC)
BETWEEN:
SHRI VANABASI SHRI RAM MANDIR TRUST,
MALAMADDI, DHARWAD, REPRESENTED BY
ITS MANAGING TRUSTEE SHRI R.P. KULKARNI,
AGE: 72 YEARS, OCC.: PENSIONER,
R/O MALAMADDI, DHARWAD.
- PETITIONER
(BY SRI SHRIKANT T. PATIL, ADVOCATE)
AND:
1. SHRI RAGHAVENDRA SONDUR,
AGE: ABOUT 55 YEARS,
OCC.: BUSINESS,
R/O. MALAMADDI, DHARWAD.
2. SHRI. KRISHNA R. DESHPANDE,
AGE: ABOUT 60 YEARS,
OCC.: BUSINESS,
R/O. MALAMADDI, DHARWAD.
- RESPONDENTS
(BY SRI R.H. ANGADI, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE COMMON ORDER ON I.A. NOS.3 & 4
DATED 27.04.2019 ON THE FILE OF THE LEARNED PRL. DISTRICT &
SESSIONS JUDGE, DHARWAD VIDE ANNEXURE-H & ETC.
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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
These writ petitions are directed against the impugned common orders dated 27.04.2019 passed in Misc. No. 21/2019 by the Principal District & Sessions Judge, Dharwad, whereby I.A. No. 3 and 4 filed by the respondents was allowed, resulting in dismissal of the aforesaid petition filed by the petitioner before the trial Court under Sections 3 and 7 of the Charitable & Religious Trusts Act, 1920 (for short 'the Act of 1920').
2. The brief facts giving rise to the present petitions are as follows:
The petitioner claims to be a religious and charitable trust within the meaning of the aforesaid Act of 1920 and that the aforesaid Act of 1920 is applicable to the petitioner Trust. In the first instance, the petitioner instituted the aforesaid petition under Sections 3 and 7 of the Act of 1920 for a declaration that the resolution dated 13.07.2018 3 passed by the petitioner-trust which was approved by its general body on 24.10.2018 appointing trustees to its managing committee as legal and valid and for other reliefs. The respondents having entered appearance in the said petition opposed the same by filing its statement of objections. In addition thereto, the respondents filed two applications, viz., I.A. No.3 u/s 151 of CPC and I.A. No. 4 u/O VII Rule 11 of CPC seeking rejection of the petition filed by the petitioners. In I.A. No. 3, it was the specific contention of the respondents that the petition filed before the trial Court was not maintainable for want of jurisdiction in view of Sec. 68 of the Karnataka Hindu Religious Institutions & Charitable Endowments Act, 1997 (for short 'Act of 1997') and a decision of this Court reported in 2015 Volume 3 KLJ 214. In I.A. No. 4, it was contended that the petition was not maintainable in view of absence of leave being obtained by the petitioners as required under Section 92 CPC. The petitioner contested both the applications. By the impugned common order, the trial Court allowed both 4 I.A. Nos.3 and 4 and consequently dismissed the main petition filed by the petitioner. Aggrieved by the impugned order dismissing its petition, the petitioner Trust is before this Court by way of the present writ petitions.
3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the material on record including the impugned order.
4. Learned counsel for the petitioner submits that the trial Court committed an error in dismissing the petition filed by the petitioner as not maintainable and without jurisdiction. In this context, learned counsel invited my attention to the two points for consideration formulated by the trial Court which are as under:
1. Whether the Respondents prove that in view of the law laid down by our own Hon'ble High Court in Lokesh and others Vs. Govt. of Karnataka and others reported in 2015 (3) Kar. L.J. 214, the present petition is not maintainable:?5
2. Do they further prove that for the reasons of non obtaining the leave of the Court as required under section 92 C.P.C. the present petition is liable to be rejected?
3. What order?
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5. It was contended that point no. 2 referred to above relates to maintainability of the petition qua the non obtaining of leave of the trial Court under Section 92 CPC. It was submitted that on 12.04.2019, petitioner had filed a memo specifically contending that it does not intend to avail the benefit of Sec. 92 CPC and that the same may be deleted. In the said memo, petitioner also stated that the petition had been filed only under Sections 3 and 7 of the Act of 1920 read with the Government Order bearing No. EKAROOP-CR-72/03-04 referred to in the said memo. Despite having expressly deleted invocation of Sec. 92 of CPC, the trial Court committed an error in examining the rival contentions of the parties in the light of the maintainability of the petition qua Sec. 92 of CPC which 6 was neither warranted nor permissible in law. It was therefore contended that the impugned order holding point No.2 against the petitioner was illegal and erroneous and that the same deserves to be set aside by this Court.
6. Secondly, it was contended that in view of the express usage of the words "may" and not "shall" in Sec. 92 of CPC, it was clear that the said provisions were only directory and not mandatory and merely because the said provisions were invoked along with Sec. 3 and 7 of the Act of 1920, the said circumstance cannot be made the basis to come to the conclusion that the petition filed under Sections 3 and 7 was not maintainable on the ground that leave of the Court was not obtained by the petitioner. It is therefore contended that the said finding on point No.2 by the trial Court deserves to be set aside on this ground also.
7. Thirdly it was contended that a perusal of Sec. 78 of Act of 1997 clearly indicates that the said Act of 1997 is not applicable to the petitioner-Trust which is neither a notified 7 or declared institution nor a temple so as to attract the provisions of the said Act. In this context, it was submitted that the trial Court has committed a serious error of law and fact in placing reliance upon Sec. 68 of the said Act of 1997 in order to come to the conclusion that the trial Court (Civil Court) did not have jurisdiction to adjudicate upon the matter and consequently, the trial Court answered point No.1 against the petitioner and proceeded to dismiss the petition by allowing IAs. 3 and 4. It is therefore contended that the impugned order passed by the trial Court deserves to be set aside.
8. Per contra, learned counsel for the respondents would support the impugned order and seeks dismissal of the petitions. In support of his submissions, learned counsel places reliance upon the following decisions.
1. Civil Appeal No. 1912 of 2020 (Arising out of Special Leave Petition (Civil) No. 21306 of 2019) - Ashok Kumar Gupta & Anr. V. M/s Sitalaxmi Sahuwala Medical Trust and others;
2. 1966 AIR 878 SCR (2) 151 - Chairman Madappa V. M.N. Mahanthadevaru and others;
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3. AIR 1975 SC 371 - Charan Singh and another V. Darshan Singh and Others;
4. ILR 2009 KAR 3760 - Smt. S.G. Sharadamma and another Vs. Sri B.R. Srikantappa and Others;
5. 2015 (3) Kar. L.J. 214 - Lokesh and Others V. Government of Karnataka and others;
6. Civil Revision Petition No. 100042 of 2017 26.02.2018
- Shri. Channabasappa V. Shri Someshwar Devasthan Jeernodhar Samiti (Trust);
---
9. After having heard the learned counsel for the parties, I am of the considered opinion that as rightly contended by the learned counsel for the petitioner, the trial Court committed an error in failing to consider and appreciate that on 12.04.2019, petitioner had filed a memo specifically contending that it does not intend to avail the benefit of Sec. 92 CPC and that the same may be deleted. In the said memo, petitioner also stated that the petition had been filed only under Sections 3 and 7 of the Act of 1920 read with the Government Order bearing No. EKAROOP-CR-72/03-04 referred to in the said memo. Despite having expressly deleted invocation of Sec. 92 of CPC, the trial Court committed an error in examining the rival contentions of the parties in the light of the maintainability of the petition 9 qua Sec. 92 of CPC which was neither warranted nor permissible in law. It is therefore clear that the impugned order holding point No.2 against the petitioner was illegal and erroneous and that the same deserves to be set aside.
10. A perusal of the impugned order passed by the trial Court will also indicate that in view of the express usage of the words "may" and not "shall" in Sec. 92 of CPC, it was clear that the said provisions were only directory and not mandatory and merely because the said provisions were invoked along with Sec. 3 and 7 of the Act of 1920, the said circumstance cannot be made the basis to come to the conclusion that the petition filed under Sections 3 and 7 was not maintainable on the ground that leave of the Court was not obtained by the petitioner. It is therefore clear that the said finding on point No.2 by the trial Court deserves to be set aside on this ground also.
A perusal of Sec. 78 of Act of 1997 clearly indicates that the said Act of 1997 is not applicable to the petitioner-Trust 10 which is neither a notified or declared institution nor a temple so as to attract the provisions of the said Act. As such, the trial Court committed a serious error of law and jurisdiction in placing reliance upon Sec. 68 of the said Act of 1997 in order to come to the conclusion that the trial Court (Civil Court) did not have jurisdiction to adjudicate upon the matter and consequently, the finding of the trial Court in relation to point No.1 deserves to be set aside on this ground also.
11. Insofar as the decisions relied upon by the learned counsel for the respondents, the same are not applicable to the facts of the instant case qua the provisions of the Act of 1920, the Act of 1997 or Sec. 92 of CPC and consequently, the said decisions cannot be relied upon by the respondents.
12. The aforesaid facts and circumstances clearly indicate that the trial Court committed an error of law and jurisdiction occasioning failure of justice in passing the 11 impugned order which warrants interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India.
In the result, I pass the following order.
ORDER
i) Writ Petitions are allowed;
ii) Impugned order is set aside;
iii) Matter is remitted back to the trial Court for
fresh disposal in accordance with law after giving sufficient opportunity to both sides;
iv) All rival contentions between the parties are hereby kept open except the contention with regard to maintainability of the petition u/s 3 and 7 of the Act which stands concluded by this order;
v) Both sides undertake to appear before the trial Court on 28.09.2020 without further notice from the Court;
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vi) The trial Court shall endeavour to dispose of the matter as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.
vii) Registry to transmit the original records to the trial Court forthwith.
SD JUDGE bvv