Madras High Court
Mr.A.Duruvasulu Naidu vs Bhajarang Educational & Social Trust on 5 December, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date of Reservation : 05.12.2014 DATED: 11.12.2014 CORAM THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM C.R.P.(NPD).No.2314 of 2011 and M.P.No.1 of 2014 1.Mr.A.Duruvasulu Naidu 2.A.Ramamoorthy Naidu ... Petitioners / Plaintiffs .. Vs .. Bhajarang Educational & Social Trust Rep.by its Managing Trustee Mr.M.G.Baskaran Having office at Ayathur Village, Tiruvallur Taluk, Tiruvallur District. ... Respondent / 1st Defendant Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India against decree and order passed in I.A.No.870 of 2009 in O.S.No.45 of 2009 dated 04.02.2011 on the file of the learned Principal District Judge, Tiruvallur to set aside the said order. For Petitioner : Mr.S.Parthasarathy, Senior counsel for M/s.N.Damodaran For Respondent : Mr.R.Muthukumarasamy, Senior counsel for for M/s.M.Rajasekar ORDER
This Civil Revision Petition is filed challenging the order passed by the Principal District Judge, Tiruvallur in I.A.No.870 of 2009 in O.S.No.45 of 2009.
2. The petitioners, as plaintiffs instituted a suit against the respondent and five others under Section 92 of C.P.C. praying for removal of the defendants 2 and 3 as trustees of Bhajrang Educational & Social Trust; directing the defendants 2 and 3 to render accounts with respect to the Trust and College run by the Trust from 01.04.2011 and declaring the powers of the Managing Trustee under the Trust Deed dated 02.08.2000 as illegal and invalid and settling a scheme for exercise of powers by the Trustees.
3. The petitioners filed I.A.No.144 of 2009 seeking leave of the court to file a suit under Section 92 of C.P.C and the trial court allowed the application on 02.04.2009. After receiving the summons in the suit, the 1st defendant, respondent herein filed I.A.No.870 of 2009 to revoke the leave granted to the plaintiffs to file the suit mainly contending that the plaintiffs are not seeking to vindicate any public right but only seek a declaration of their personal right. The application was resisted by the petitioners by filing a counter.
4. The learned Trial Judge allowed the application and cancelled the leave granted in I.A.No.144 of 2009. Questioning the order dated 04.02.2011 in I.A.No.870 of 2009 in O.S.No.45 of 2009, the present revision has been filed.
5. Mr.S.Parthasarathy, learned Senior Counsel appearing for the petitioner submitted that the plaintiffs have made allegations of misappropriation of funds in the plaint, that the plaintiffs are admittedly trustees of Bhajarang Educational & Social Trust and the defendants are not running the Trust in a democratic fashion and they have also not maintained the accounts of the Trust. It is further submitted that the plaintiffs by letter dated 18.01.2007 requested the defendant to convene the meeting of the Trust Board but there was no response from him. The learned Senior Counsel also submitted that, with the allegations made in the plaint, the plaintiffs can seek the remedy under Section 92 of CPC as they have got alternate remedy.
6. Per contra, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the respondent submitted that the Trust was formed in the year 2000 and the 2nd defendant, as the founder and Managing Trustee of the Trust has nominated the plaintiffs and one Mr.Balram Naidu, the 4th defendants as the Trustees of the Trust but they did not evince any interest in the functioning of the Trust. The learned Senior Counsel further submitted that in the year 2007, the 1st plaintiff issued a notice stating himself as the Secretary of the Trust as they were nominated in a meeting held on 12.03.2007. The plaintiffs contended that on 05.02.2007, they issued a notice to the respondent for convening a Trust Board meeting on 12.03.2007 and in the meeting, the 1st plaintiff and the 4th defendants have nominated themselves as Secretary and Treasure of the trust, respectively.
7. The learned Senior Counsel also submitted that the defendant did not receive notice dated 05.02.2007 and therefore the defendants 1 to 3 filed suit in O.S.No.63 of 2007 before the Sub Court, Tiruvallur seeking for declaration of the meeting purported to be held on 12.03.2007 as illegal and invalid. The defendants have also prayed for a consequential relief in the suit. The learned senior counsel further submitted that the defendants 1 to 3 filed interlocutory applications in the suit in I.A.No.151 to 153 of 2007 to restrain the 1st plaintiff and 4th defendant from acting as a Secretary and Treasurer; for injunction restraining the defendants 5 to 7 from acting as Trustees and for injunction restraining from holding any meeting of the Trust. In the suit, the petitioner herein filed I.A.No.174 of 2007 seeking for injunction restraining the defendants 2 and 3 from interfering with the rights of the first plaintiff and 4th defendant in the management of the Trust. However, the learned Sub Judge, allowed the applications filed by the defendants in I.A.Nos.151/07 to 153 of 2007 dismissing the applications filed by the petitioners in I.A.No.174 of 2007.
8. The learned Senior Counsel further submitted that the petitioners have sold their properties to the Trust by registered sale deeds dated 02.08.2000 but instigated their children to file a suit claiming partition in O.S.Nos.230 & 231 of 2007. The learned Senior counsel contended that long after the negotiations of litigations, the petitioners instituted this suit on 31.03.2009 only to vindicate their private and personal disputes. The learned Senior counsel relying upon a judgment of the Hon'ble Supreme Court in Vidyodaya Trust v. Mohan Prasad R and Others reported in 2008 (4) SCC 115 submitted that the present suit is not maintainable even though it is coached in the way to invoke Section 92 of CPC.
9. It is not in dispute that Bhajarang Educational & Social Trust was established by the 2nd defendant Mr.M.G.Baskaran and as per the Trust Deed dated 02.08.2000, he was nominated as Founder and Managing Trustee of the Trust. The plaintiffs have contended that after commencing of the College, the conduct and behaviour of the 2nd defendant has changed and with a view to defraud the other Trustees, he started to act against them and also against the interest of the Trust. It is the case of the plaintiffs that the Managing Trustee obstructed the other Trustees in participating from the administration of the Trust and he had received amounts by way of capitation fees from the students of the College but has not maintained accounts properly.
10. The plaintiffs have further contended that on 18.01.2007, they requested to convene a meeting of Board of Trust on 12.03.2007 and in the meeting, the defendants 5 to 7 have been appointed as additional trustees and the 1st plaintiff was nominated as Secretary and the 4th defendant has been nominated as Treasurer of the Trust. Though the plaintiffs have contended that they issued a notice on 18.01.2007 to convene meeting on 12.03.2007, the defendants denied receipt of notice. The defendants 1 to 3 have also filed a suit in O.S.No.63 of 2007 questioning the meeting held on 12.03.2007 and the nominations of the 1st plaintiff and the 4th defendant as Secretary and Treasurer of the Trust. The defendants have also challenged the appointment of new trustees who are added as defendants 4 to 6 in the suit.
11. Indisputably, the Sub Court, Tiruvellore allowed the applications filed by the defendants 1 to 3 herein on 20.07.1999 and the same was also confirmed in CMA Nos.27, 28 & of 29 of 2007. A cursory look of the prayer of the plaint would reveal that the plaintiffs and the defendants 4 to 7 wanted to hold their positions in the Trust and they are seeking for removal of the defendants 2 and 3 alone. The plaintiffs who have lost their case in O.S.No.63 of 2007 have filed the suit only to vindicate their personal right in the year 2009. It is useful to refer the judgment of the Hon'ble Supreme Court reported in 2008 (4) SCC 115 which reads as follows -
18. Prior to legislative change made by the Code of Civil Procedure (Amendment) Act (104 of 1976), the expression used was consent in writing of the Advocate General. Sub-section (3) has also been inserted by the Amendment Act. The objection of Section 92 CPC is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. Public trusts for charitable and religious purpose are run for the benefit of the public. No individual should take benefit from them. If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of public trusts. Thus, there is need for scrutiny.
19. In the suit against public trusts, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons an action under the provision does not lie. As noted in Swami Paramatmanand case a suit under Section 92 CPC is a suit of special nature, which presupposes the existence of a public trust of religious or charitable character. When the plaintiffs do not sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of any other persons or persons in whom they are interested, Section 92 has no application.
20. In Swami Paramatmanand case, it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But if after evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the Section then suit purporting to be brought under Section 92 must be dismissed.
12. In a Division Bench decision of this Court in Rajasekaran.V v. M.Rajendran reported in 2007 (2) CTC 769, it has been held as follows -
12. From those decisions, it can be said that the following principles are well settled :
(1) Such suit should be filed to ventilate the right of the public and not for protecting the personal right or the individual right of the plaintiff or to any other person (see Swami Parmatman and Saraswati and another v. Ramji Tripathi and anotehr AIR 1974 SC 2141) (2) Even though the question of grant of leave can be considered by the Court without issuing notice to the defendant, since the defendant can seek for revocation of leave, the Court at times consider the question of grant of leave after issuing notice to the defendant. (See R.M.Narayana Cheettiar v. N.Lakshmanan Chettiar, AIR 1991 SC 221; Tirupattur Nagarathu Vysiyargal Sangam v. Tirupattur Periyakulam Nadavanam Inam Land Tenants Association, Tirupattur Town, 1998 (1) MLJ 303 and B.S.Adityan and others v. B.Ramachandran Adityan and others, 2004 AIR SCW 3004).
(3) The question as to whether leave should be granted or not primarily depend upon the allegations made in the plaint/application seeking leave. (See AIR 1975 SCS 371).
(4) However, since the Court is required to find out the bona fide of the applicant, the averments made in the written statement/objection can be considered for the said limited purpose (See L.M.Menezes and othersv. Rt.Rev.Dr.Lawrence Pius and others, 2004 (1) CTC 321 : 2004 (1) MLJ 258).
13. In the above referred judgment, this Court has held that the averments made in the written statement or objection of the tenant can be considered for the limited purpose to find out bonafides of the plaintiffs for instituting the suit.
14. In the case on hand, the learned Principal Judge, Tiruvallur has considered in detail the documents/exhibits P1 to P10 and observed that the petitioners have instituted the suit to vindicate their personal rights and thus cancelled the leave granted in their favour. In my considered opinion, the petitioners have not made out a case warranting interference by this Court.
15. In the result, the civil revision petition is dismissed confirming the decree and order passed in I.A.No.870 of 2009 in O.S.No.45 of 2009 dated 04.02.2011. No costs. Consequently, connected Miscellaneous Petition is closed.
11.12.2014 Index : Yes/No rgr To The Principal District Judge, Tiruvallur.
K.KALYANASUNDARAM, J.
rgr Pre-delivery order in C.R.P.(NPD).No.2314 of 2011 11.12.2014