Karnataka High Court
B K Manjunath S/O Hanumanthappa vs Sree Sree Sree Sadguru on 15 June, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
MFA. No.102854/2014 (CPC)
BETWEEN:
1. B.K.MANJUNATH S/O HANUMANTHAPPA,
AGED ABOUT 29 YEARS,
R/O D.NO.C-148, 9TH CROSS, TALUR ROAD,
RENUKA NAGAR, VEERABHADRESHWARA NILAYA,
BELLARY.
2. B.V.SHANKAR S/O LATE B.V.ERANNA,
AGED ABOUT 28 YEARS, REAL ESTATE BUSINESS,
R/O WARD NO.11, KUVEMPU NAGAR,
SIRUGUPPA ROAD, BELLARY.
3. P.DEVENDRA RAO S/O LATE K.PARASHURAM RAO,
AGED 54 YEARS, PILIGRIM TOURIST,
R/O D.NO.107-A, IN 12TH WARD,
SANNA DURUGAMMA TEMPLE STREET, BELLARY.
.. APPELLANTS
(BY SRI.MALLIKARJUNASWAMY B.HIREMATH, ADV.)
AND:
1. SREE SREE SREE SADGURU
MAHADEVATHATHANAVARA PRASADA NILAYA
TRUST (R), C/O SREE SREE SREE SADGURU
MAHADEVATHATHANAVARA GNANA
RAMBHAPURIMAH, ALLIPURA VILLAGE,
BELLARY DISTRICT,
REP.BY ITS TRUSTEES, BELLARY.
2. SRI.S.SHANMUKHAPPA S/O LATE DAKSHINA MURTHY,
AGED ABOUT 75 YEARS, R/O AT D.NO.36/11,
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FLOWER STREET, BELLARY.
3. SRI.C.K.NAGANA GOUD S/O VIRUPANAGOUD,
AGED ABOUT 79 YEARS,
R/AT NEAR BENKI MAREMMA TEMPLE,
BANGALORE ROAD, BELLARY.
4. SRI.T.LINGANA GOUDA S/O MARI BASAVANA GOUD,
AGED ABOUT 80 YEARS,
R/AT NEAR TIPPU SULTAN HOSTEL, FORT, BELLARY.
5. SRI.Y.BASAPPA S/O SHARANAPPA,
AGED ABOUT 68 YEARS,
R/AT BEHIND VINAYAK ELECTRICALS,
JAIL ROAD, S.P.CIRCLE, BELLARY.
6. SRI.MAHADEVAPPA PATTANNA SETTY,
S/O LATE SIVALINGAPPA,
AGED ABOUT 60 YEARS,
R/AT VEERABHADRASHWARA LORRY TRANSPORT
OFFICE, COLLEGE ROAD, BAGALKOT.
7. SREE SREE SREE MAHADEVATHATHANAVARA
VIDYA SAMSTHE(R),
C/O SREE SREE SREE DADGURU MAHADEVATHATR
GNANA RAMBAPURI MATH, ALLIPURA VILLAGE,
BELLARY DISTRICT, REP.BY ITS TRUSTEE,
SRI.J.S.BASAVARAJ S/O SRI.VIRUPAKSHAPPA,
A/A 50 YEARS, ADVOCATE, R/AT BANGALORE ROAD,
BELLARY.
8. SRI.J.S.BASAVARAJ S/O SRI VIRUPAKSHAPPA,
AGED ABOT 50 YEARS, ADVOCATE,
R/AT BANGALORE ROAD, BELLARY.
9. SRI.S.CHANNA GOUD S/O SRI.VEERANA GOUDA,
AGED ABOUT 81 YEARS,
R/AT BEHIND MMTC OFFIE, S.N.PET, BELLARY.
10. SRI.C.H.M.BASAVARAJ S/O SHARABHAIAH,
AGED ABOUT 66 YEARS,
R/AT RENUKACHARYA NAGAR,
BEHIND BASAVESHWARA NAGAR, BELLARY.
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11. SRI.J.M.POMPAPATHY S/O KOTRAIAH,
AGED ABOUT 47 YEARS,
NEAR TAYAMMANA KATTE, METI DODDAPPA CHATRA,
BELLARY.
...RESPONDENTS
(SRI.PRAKASH ANDANIMATH, ADV. FOR R3, R6 TO R11,
R1, R2 AND R5 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 104 OF CPC
AGAINST THE ORDER DATED 27.09.2013 PASSED IN
MISC.6/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE
AT BELLARY, REJECTING AND CONSEQENTLY PLAINT IS
REJECTING THE I.A.NO.1 FILED U/SEC. 92(1) OF CPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners No.1 to 3 in Misc.No.6/2009 on the file of Principal District Court, Ballari have come up in this appeal impugning order dated 27.09.2013 on IA No.1 filed in the said proceedings under section 92 (1) of CPC wherein leave is sought for institution of a suit under section 92 of the CPC.
2. Brief facts leading to this appeal are as under. The appellants herein are the devotees of Sri Sri Sri Sadguru Mahadeva Tata of Allipura. The said Seer, while alive started main Moolmath at Allipur village in Ballari 4 Taluk and the same is referred to as Jnana Rambapuri Math popularly known as a Math established by Allipur Tata. The said Swami during his lifetime collected contributions and donations by general public. By utilizing that acquired properties at different places of Karnataka where he has established the branches of Moola Math. The Moola math and branches were under his control and supervision during his lifetime. All the contributions which was received by him was spent for betterment of the society by aforesaid Allipur Tata.
3. It is stated that the total extent of land acquired by him is measuring to an extent of 118.44 acres spread over in different districts of the State. He has also deposited the contributions and donations which are available after spending the same for improvement and betterment of the math in fixed deposit with an intention to utilize the same for betterment of society. The appellants herein have given particulars of the same in Annexure-A and B to Misc.No.6/2009. The record would 5 also indicate that Allipur Tata during his lifetime established Sanskrit Pata Shala, which is located in a huge hall constructed in Jnana Rambapuri Complex in Allipur.
4. When matter stood thus, on 30.12.1987 Saint Allipur Tata attained Mahasamadi at Sanganur, Nanjanagoodu Taluk in Mysore District. It is an undisputed fact that, he did not appoint any Uttaradhikari to the math built and established by him. After Mahasamidhi of Allipur Tata, the 9th defendant in the Court below and another person by name H.Naganagouda took possession of A and B schedule properties and 9th defendant with the help of defendants No.8, 10 and 11 is said to have created registered trust known as Sri Sri Sri Sadhguru Mahadeva Tatanavara Vidya Samste which institution is 7th respondent in this appeal and the same is established on 25.08.1998 with respondents No.8 to 11 as trustees of respondent No.7.
5. Similarly another trust was created by some other persons, they are Nalawad Basappa a freedom 6 fighter and respondents No.2 to 6 herein under the name and style of Sri Sri Sri Sadguru Mahadeva Tatanavara Prasada Nilaya Trust, which is 1st respondent in this proceedings and it was registered on 27.10.1988.
6. When the matter stood thus, a scheme suit was filed by the then trustees of 1st respondent against the then trustees of 7th respondent. Incidentally, 9th respondent herein was one of the trustees of 7th respondent at the relevant point of time. The scheme suit which was filed by the trustees of 1st respondent was initially numbered as Misc.Case.No.9/1990 on the file of District Court, Ballari on 19.04.1990. The said miscellaneous was allowed by order dated 22.12.1990 and leave was granted to register the same as original suit. Accordingly, the same was registered as O.S.No.No.1/1991 on the file of District Judge, Ballari on 14.01.1991.
7. In the said proceedings a compromise is arrived at between the trustees of 1st respondent and 7th respondent which was filed in to the Court below under 7 Order XXIII Rule 3 R/w Section 151 of CPC. Based on that, scheme was framed by the Court below by rendering its judgment dated 11.03.1991 in O.S.No.1/1991. The scheme which is formed, is in the form of decree passed in the said proceedings, which is sought to be challenged.
8. In the proceedings in Misc.No.6/2009 the appellants herein tried to challenge the said decree, so far as it pertains to alleged mismanagement of trust by 9th respondent Channanagouda. Admittedly he was one of the trustees who represented 7th respondent in O.S.No.1/1991 and party to the compromise petition filed on 11.03.1991.
9. Admittedly the parties to the said compromise are the trustees of 1st respondent namely Nalawade Basappa and S.Shanmugappa on behalf of 1st respondent and J.S.Basavaraj and S.Channanagouda 9th respondent herein on behalf of 7th respondent trust. The Court below after accepting the compromise petition filed by them passed decree in terms of compromise on 11.03.2011, which remained unchallenged, until a suit in 8 O.S.No.156/2002 was filed by some of the devotees of the math seeking certain declaration on the premise that the decree passed in O.S.No.1/1991 is fraudulent. Hence, the same should be declared as void and committee should be appointed for management of the trust. The said suit came to be allowed in part by judgment and decree dated 26.02.2007 wherein the compromise decree obtained in O.S.No.1/1991 dated 11.03.1991 on the file of District Court Ballari was declared as void. The defendants in the said suit were restrained from withdrawal of any amount from B schedule deposit referred to in the said suit and defendants were directed to call for general meeting of the devotees of said math, disciples of Sri Sri Sri Sadhguru Mahadeva Tata and all the concerned Mathadhikari's within one year from the date of decree by giving vide publicity of date, time and place of meeting and the agenda of the meeting was to take suitable decision regarding the future management of the math and administration of the math properties.
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10. The judgement dated 11.03.2010 in O.S.No.156/2002 on the file of Civil Judge Senior Division, Bellary, was subject matter of two appeal in RFA Nos.1010 and 1468 of 2007. The appeal in RFA.No.1010/2007 is by plaintiffs in O.S.No.156/2002 impugning the judgment dated 11.03.2010 so far as it pertains to rejecting their prayer for constitution of committee of well known persons for management of math and its properties. The appeal in RFA No.1468/2007 is by defendants No.1 to 3 and 5 to 10, against plaintiffs No.1 to 5 and others against the judgment and decree dated 26.02.2007, in O.S.No.156/2002.
11. The second of the appeals, i.e., RFA No.1468/2007 was incomplete when it was taken up for final disposal before Division Bench of this Court, in as much as all the grounds were not urged and liberty was also sought for urging some more grounds at the time of argument which was not ripe for that stage. However these two appeals are taken up for final disposal at the 10 stage of admission itself. Since all the parties were served, they were disposed of by common judgment dated 10.12.2008. Wherein the finding of the Court below in O.S.No.156/2002 was set aside, observing that it was rendered without proper appreciation and also for not assigning any reasons. The Division Bench in the judgment at paragraph No.4 observed as under:
"In that view of the matter the judgment of the trail Court in declaring the decree in O.S.No.1/1991 as void is bad in law. In the said judgment there is also further observation that "however the plaintiffs in O.S.No.156/2002 are given liberty to approach the District Court and make proper application to seek needed reliefs".
In the very same judgment the Division Bench directed both the parties to the litigation to maintain status quo for a period of three months. In the meanwhile plaintiffs in the said suit were given liberty to approach the District Court, Bellary to work out proper remedies in accordance with law. With such observation the appeals were disposed of.
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12. It is after disposal of these two appeals by common judgment dated 10.02.2008, the proceedings in Misc.No.6/2009 is initiated on 16.03.2009 under section 92 of CPC. The prayer in Misc.No.6/2009 is seeking leave to the plaintiffs to file the suit; to prosecute the same for removal of the trustee i.e., respondent No.9 in the said miscellaneous from the trusteeship of respondent No.7 in the said miscellaneous; direction to other respondents 1 to 11 for proper functioning and implementation of the aims and objects of the trust; for other direction for proper administration of trust; its properties; its revenue; by appointing an administrator with direction to administer and manage the trust; by appointing a committee for its management.
13. In the said miscellaneous proceedings before the Court below, after framing points for consideration, enquiry was conducted for consideration, which is "Whether the petitioners have made out justifiable grounds for seeking permission to institute a suit under section 92 12 of CPC?" was held in negative, consequently the miscellaneous proceedings is dismissed with cost of Rs.5,000/-. The petitioners No.1 to 3 in the said miscellaneous being aggrieved by the same have come up in this appeal. In this appeal, the notice to all the respondents is served except respondent No.4- Sri.T.Lingana Goud s/o Mari Basavana Goud. However, it is only respondent No.3 and 6 to 11 are before this Court opposing this appeal.
14. In this proceedings LCR in O.S.No.1/1991 by O.S.No.156/2002 and RFA Nos. 1010/2007 and 1468/2007 were secured and the entire material available on record is looked into. On going through the same, it is seen that, in fact the institution of suit under section 92 of CPC and filing of civil miscellaneous No.9/1990 appears to be in order. It is also in order that after enquiry the said civil miscellaneous is allowed and suit being registered in O.S.No.1/1991 is also in order. In said suit, the plaintiffs and defendants are admittedly two rival groups who had 13 registered themselves independently as trust i.e., one trust is first respondent herein and another trust is seventh respondent herein. Both were trying to take absolute control of the math, which was saddled by Allipur Tata. Anyway in the said suit there appears to be a compromise arrived at between the plaintiff and defendant which has resulted in compromise petition being filed by them on 11.03.1991.
15. The said compromise is accepted by the Court below as if it is a compromise entered into between two parties. The Court below i.e., Court of District Judge, Bellary was required to follow the procedure as contemplated under order 23 rule (3B) (2) (A) of CPC, which reads as under.
"3B. No agreement or compromise to be entered in a representative suit without leave of Court.-
(1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.14
(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.
Explanation- In this rule, "representative suit" means,-
(a) a suit under section 91 or section 92,
(b) A suit under rule 8 of order 1,
(c) A suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,
(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.
16. On going through the same it is clearly seen that there is an error committed on the part of the District Court, Bellary in accepting the compromise petition.
Accordingly, the suit in O.S.No.1/1991 was under Section 92 of Civil Procedure Code and as such it was in the nature of representative suit. Hence, while accepting compromise in a suit under Section 92 CPC, the Court below should have complied with provisions of Order 23 Rule 3B(1) and (2) to prevent further suits by other persons interested in 15 subject matter of the suit as held in the matter of Siddlingeshwar and Others Vs Virupaxgouda and Others, reported in ILR 2003 KAR 2559, wherein para 15(ii) of said judgment reads as under:
15.(i) .....................
"(ii) If a suit is a representative suit (as enumerated in the explanation to Rule 3B), no compromise or agreement can be entered without the leave of the Court, expressly recorded in the proceedings, after issue of notice to the persons interested, as provided in the said Rule. Any party to a representative suit, either suing or being sued in a representative character, should therefore seek leave of the Court to enter into such compromise/agreement. The court should give notice of such compromise/agreement to such persons as may appear to it to be interested in the suit before granting such leave. After such notice, and after satisfying itself that the proposed Compromise/Settlement is not disadvantageous to the persons interested, the Court may grant leave, by expressly recording it. Failure to comply with the mandatory provisions of Rule 3B will render the agreement or compromise void."
17. Therefore, the compromise accepted in O.S.No.1/1991 and framing the scheme in terms of compromise petition is contrary to Provisions of Order 23 Rule 3B (1) and (2), inasmuch as in not notifying the same to the devotees of the math who are interested in the outcome of the suit. While entrusting the management of the math to persons referred in the compromise which is 16 either in favour of plaintiff or defendant or to a trust to be constituted including all the four persons, in the said suit, precaution should have taken by the learned District Judge in terms of Order 23 Rule 3B (1) and (2). Whatever the decision that is taken by the Court below in O.S.No.1/1991 is behind the back of the devotees of the math, who had interest in the activities of math and as well as its assets which were built by the Allipur Tata from the donations received from the devotees of math for the betterment of the society and for welfare of the devotees of the math who believed in the tatvas propagated by him.
18. Therefore, the error committed by the District Court in not following the provision of law would result in acceptance of the compromise by order dated 11.03.1991 and also formulating a scheme pursuing thereof, is bad in law, which was not discussed by the Court below while deciding O.S.No.156/2002 which has resulted in the Division Bench of this Court holding that the said judgment is bad in law for not considering the aforesaid point. 17
19. Therefore, the judgment rendered by Division Bench of this Court in RFA Nos.1010 and 1468 of 2007 would conclusively establish that the procedure in which the trust is created is erroneous. However the trust has continued to this day. When the out come of the enquiry conducted in miscellaneous No.6/2009 is seen that there is serious allegation against members of respondent no.1 trust and respondent no.7 trust in exercise of power with reference to management of the properties of Allipur math as if the said property belong to them exclusively in derogation of the scheme which is framed by the Court below.
20. In fact in the scheme which is framed by the District Court in the year 1991 though procedurally incorrect, the contents therein give sufficient opportunity to the devotees of the math and other interested persons to approach the same Court either to seek intervention of the court regarding improper management of the trust, its properties including the funds, which warrant a change in 18 the manner it is required to be managed, as could be seen in paragraph No.11 of the compromise petition. In this back ground when the prayer in miscellaneous No.6 of 2009 is looked into, this Court feel that the finding of the Court below is erroneous.
21. Therefore, in the fact situation, this Court feel, a grave error is committed by the Court of Principal District Judge, Ballari while deciding Misc.No.6/2009 in dismissing the same as if the petitioners in the said proceedings are seeking framing of scheme afresh. In fact, when the entire material available on record is seen, what they are seeking is modification of the scheme, removing respondent No.9, who is said to be indulging in the activities contrary to the interest of Math and further prayer is for appointment of administrator. In the fact situation, this Court feel, it is just and proper to appoint an administrator to protect the interest of Math and public at large who are its devotees and also ensure that properties of the Math, which is available for the benefit of the devotees should be 19 protected and the best course that is available is to appoint Principal District Judge, Ballari as administrator of the said Math, who shall take charge of respondent No.1- Math and respondent No.7-institution and all other institutions which are under the control of said two trusts and also all movable and immovable assets of Math under his care and supervision within 30 days from this day.
22. To manage day-to-day affairs of the math and all other institutions connected thereto, he shall be empowered to constitute a committee of nine members by taking members in the existing two trusts, who shall ceased to be trustees and shall be appointed as members of Managing Committee constituted by the Administrator, Principal District Judge, Bellari. They shall be appointed as members of the managing committee by the administrator Principal District, Judge Ballari only for a period of three years from this day. Since the present strength is said to be eight members, the administrator is empowered to take one more person of his choice to complete the strength of 20 committee of nine members and once in three years or calling applications from general public who are devotees of the Math, he may select the managing committee, which shall be in force for a period of three years.
23. Accordingly, this appeal is disposed of with a direction to registry to draw decree in terms of this order in appointing Principal District Judge, Ballari as administrator and existing eight trustees of respondent Nos.1 and 7 as members of the first managing committee, which shall come into force from this day. The nine members selected by the administrator for the first three years only, for subsequent years by fresh selection for the post of members of Managing Committee shall be conducted by the Principal District Judge of Ballari by calling for applications from among the devotees of math, once in three years.
With such observation, this appeal is disposed of. 21 Registry is directed to communicate this order to the learned Principal District Judge, Ballari forthwith for further action to be taken pursuant to this judgment.
Sd/-
JUDGE EM/RHR/MBS/-