Madras High Court
K.Vaidhyanathan vs Senthil Educationalal Trust on 15 September, 2022
C.R.P.No.2484 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.No.2484 of 2022
and
C.M.P.No.12830 of 2022
K.Vaidhyanathan ... Petitioner
vs
1.Senthil Educationalal Trust
Rep. By its Managing Trustee
Periyavadavadi, Vijayanagaram Post,
Vridhachalam
Cuddalore – 104.
2.E.Senthil Anand
3.Chandravadivu
4.N.Elavarasan
5.D.Thangaraju
6.P.Ganesan
7.V.Prasanna
8.S.Diviya
9.R.Kavitha
10.V.Prathib
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C.R.P.No.2484 of 2022
11.M.Vinodh Kumar
12.S.Kalaiarasan
13.K.Rahulraj
14.J.Mohankumar ... Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution
of India, praying to set aside the Fair and Decreetal Order dated 19.04.2021
passed in I.A.No.294 of 2020 in O.S.No.58 of 2020 on the file of the
Additional Subordinate Court, Virudhachalam.
For Petitioner : Mr.K.Venkatasubban
For R1 : Mr.S.Subramanian
ORDER
The Civil Revision Petition is filed by the petitioner, challenging the dismissal of the petition for rejection of plaint.
2. The 1st to 3rd respondents herein filed a suit in O.S.No.58 of 2020 for declaration that the defendants 2 to 12 therein are not the duly co-opted Trustees of the 1st respondent/Trust. They also sought for a further declaration that the 2nd respondent/2nd plaintiff is the duly co-opted life time managing Trustee of the 1st respondent/Trust. The 3rd defendant in the suit, the revision petitioner filed a petition for rejection of plaint on followings grounds:- 2/10
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(i) As per the admitted case of the plaintiffs, they ceased to be Members of the Trust and hence, they are not entitled to file suit describing themselves as a Trustees.
(ii) The suit which will come within the scope of Section 92 of Civil Procedure Code had been presented without obtaining mandatory leave of the Court.
(iii) The petitioner also raised a plea of limitation.
3. The Trial Court having not satisfied the contention raised by the petitioner, dismissed the petition for rejection of plaint.
4. The learned counsel for the revision petitioner submitted that the 1st to 3rd respondents/plaintiffs admitted in Para 5 of the plaint that they ceased to be Members of the Trust and hence, the presentation of the plaint by describing themselves as Trustee is not acceptable. He also submitted that the prayer in the suit is drafted in clever way, so as to bring it outside the scope of Section 92 of the Civil Procedure Code. The learned counsel for the petitioner by taking this Court to the provisions of Section 92 of the Civil 3/10 https://www.mhc.tn.gov.in/judis C.R.P.No.2484 of 2022 Procedure Code, submitted that in effect the plaintiffs in this suit, sought for removal of defendants 2 to 12 from the trusteeship and hence, the prayer will come within the scope of Section 92 of the Civil Procedure Code and consequently, the suit having been presented without obtaining mandatory leave of the Court is liable to be rejected. The learned counsel further submitted that the suit is barred by limitation.
5. With regard to the first contention of the learned counsel for the petitioner that the 1st to 3rd respondents/plaintiffs admitted in the plaint that they had ceased to be Trustees is concerned, the same cannot be accepted in the light of actual averment found in the plaint. In para 5 of the plaint, the plaintiffs only contended that from the newspaper report dated 11.01.2020, they came to know that a public notice was issued stating that plaintiffs 2 and 3 failed to attend three consecutive board meetings of the Trust and hence, they ceased to be a Member of the 1st respondent/Trust.
6. Therefore, the 1st to 3rd respondents/plaintiffs never admitted that 4/10 https://www.mhc.tn.gov.in/judis C.R.P.No.2484 of 2022 they ceased to be Members of the Trust in the plaint and hence, the 1 st contention raised by the learned counsel for the petitioner cannot be accepted.
7. As far as the second contention of the learned counsel for the petitioner is concerned, the learned counsel appearing for the 1st respondent relied on the decision of the Hon'ble Apex Court in Ghat Talab Kaulan Wala vs. Gopal Dass reported in (2020) 13 SCC 50, wherein the Hon'ble Apex Court had categorically held that if suit is presented by the Trust, the same will not come within the scope of Section 92 of the Civil Procedure Code. The relevant observations of the Hon'ble Apex Court is as follows:-
“12. ... Section 92 of the Code contemplates a suit against a Trust either for removing any Trustee; appointing new Trustee; or vesting any property in a Trustee, etc. but the present suit itself is by a Trust agaisnt a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would not be applicable in a suit by a trust. Section 92 of the Code confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. ...” 5/10 https://www.mhc.tn.gov.in/judis C.R.P.No.2484 of 2022 In view of the law laid down by the Hon'ble Apex Court that when the suit is filed by the Trust, Section 92 of the Civil Procedure Code is not applicable, the second contention raised by the petitioner cannot be accepted.
8. The perusal of the order passed by the Court below would suggest that the contention of the revision petitioner with regard to the leave under Section 92 of the Civil Procedure Code was rejected mainly on the ground that if the suit is not filed for litigating public right by alleging breach of Trust or by seeking directions regarding administration of the Trust, leave under Section 92 of the Civil Procedure Code, is not at all necessary.
9. The perusal of the averment found in the plaint make it clear that the 1st to 3rd respondents only seek a relief against the individuals. They are not seeking any relief alleging breach of Trust or seeking directions for administration of the Trust. Therefore, the contention that suit was cleverly drafted so as to take it outside the scope of Section 92 of the Civil Procedure Code cannot be accepted.
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10. It may be useful to refer to the decision of this Court in Rabiammal Ahamed Maideen Educational Trust vs. K.A.Ahamed Maideen reported in [2012-14-L.W.141], the relevant paragraph is as follows:-
“32.It is also made clear in the judgment reported in AIR 1974 SCC 2141 [Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another], wherein their Lordships have categorically held that if the allegation of breach of Trust is not substantiated or that the plaintiff has not made out a case for any direction by the court for proper administration of the Trust, the very foundation of a suit under the section would fail, even if all the other ingredients of a suit under section 92 are made out. The prayers in the suit are for declaration that the first appellant is a Public Charitable Educational Trust, for declaration that the supplementary and amended deed of Trust, dated 26.05.2005 is illegal and null and void, for declaration that the meeting held on 04.01.2006 removing the plaintiffs 2 to 4 from the office of the Secretary/Treasurer/Trustee and removing the plaintiffs 2 to 4 from the members of the Board of Trust and appointing the 7th respondent/defendant as member/Secretary as illegal and null and void and for consequential injunction. Therefore, by no stretch of imagination, it can be contended that the appellants 2 to 4 have filed the suit to vindicate the public rights and they only filed the 7/10 https://www.mhc.tn.gov.in/judis C.R.P.No.2484 of 2022 suit to vindicate their personal rights, namely to establish their position as Trustees of the first appellant Trust and for the cancellation of the appointment of the 7th respondent from the post of Secretary/Treasurer in the meeting, dated 04.01.2006.
Therefore, having regard to the judgment referred to above and the prayers sought for and in the absence of any allegation regarding the breach of Trust and no direction was sought for the administration of the Trust, the trial court has rightly held that the suit will not come within the scope of section 92 CPC and therefore, there is no need to obtain the leave and without properly appreciating the various judgments of the Hon'ble Supreme Court, the lower appellate court committed a serious error in holding that the suit falls under the ambit of section 92(1) of CPC.” The above decision is directly applicable to the facts of the present case and hence, in the light of averments found in the plaint and relief sought for in the suit, it is clear that the suit is filed by Trust only against individuals. No breach of trust or direction for administration of Trust is sought for. Hence, I hold that leave under Section 92 of the Civil Procedure Code is not at all necessary.
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11. The question of limitation raised by the learned counsel for the petitioner is a mixed question of law and fact and the same cannot be considered while considering the petition filed under Order 7 Rule 11 of the Civil Procedure Code. The revision petitioner is given liberty to canvass the points, he raised with regard to the limitation and maintainability of the suit before the Trial Court at the time of final disposal of the suit in O.S.No.58 of 2020.
12. In view of the above discussions, I do not find any illegality or irregularity in the order passed by the Court below and hence, the Civil Revision Petition is dismissed as devoid of any merit. No costs. Consequently, the connected civil miscellaneous petition is closed.
15.09.2022
Index : Yes / No
Speaking Order : Yes / No
dm
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C.R.P.No.2484 of 2022
S.SOUNTHAR , J.
dm
To
The Additional Subordinate Court,
Virudhachalam.
C.R.P.No.2484 of 2022
15.09.2022
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