Karnataka High Court
Muhammad Azhar Ali vs Abdul Razzaq Bidri And Ors on 31 August, 2021
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF AUGUST 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CIVIL REVISION PETITION No.200007 OF 2018
BETWEEN:
Muhammad Azhar Ali,
S/o. Late Md. Sultan,
Aged about 45 years,
Occ: Business,
R/o. House No.E-41-1768,
Vidyanagar Colony,
Kalaburagi - 585 103.
.. Petitioner
( By Sri. Ameet Kumar Deshpande, Advocate )
AND:
1. Abdul Razzaq Bidri
S/o. Abdul Aziz Bidri
Age about: 48 years,
Occ: Business,
R/o. H.No.5, Vidya Nagar,
Kalaburagi.
2. Muhammad Abdul Saleem
S/o. Muhammad Abdul Kareem,
Age about: 48 years, Occ: Business,
R/o. MSK Mill, Jeelanabad,
Kalaburagi.
C.R.P.No.200007/2018
2
3. Muhammad Hameed
S/o. Muhammad Aziz,
Age about: 47 years,
Occ: Employee,
R/o. Op. Flora Public School,
New Raghavendra Colony,
Kalaburagi.
4. Abdul Asad Maniyar,
S/o. Abdul Rahman Maniyar,
Age about: 48 years, Occ: Business,
R/o. H. No.188,
Vidya Nagar Colony,
Kalaburagi.
5. Syed Altaf Ali S/o. Syed Mastan,
Age about: 46 years, Occ: Nil
R/o. H. No.192, Vidya Nagar Colony,
Kalaburagi.
6. Syed Asif Ali Siddique
S/o. Syed Yousuf Ali Siddiqui
Age about: 43 years, occ: Business,
R/o. Galib Colony,
Behind Qadeer Function Hall,
MSK Mill Area, Kalaburagi.
7. Syed Yaqub Ali S/o. Syed Riyaz Ali,
Age about: 43 years, Occ: Business,
R/o. H. No.T-4-1041/121/C
Madina Colony, Green Circle,
Kalaburagi.
8. Ahmed Hussain Soudagar,
S/o. Shaik Modeen Soudagar,
Age about: 53 years, Occ: Business,
R/o. Besides Flora Public School,
New Raghavendra Colony,
Kalaburagi.
C.R.P.No.200007/2018
3
9. Naseem Khanam W/o. Md. Khan,
Age about: 40 years, Occ: Household,
R/o. H. No.11-1041/43/1, Misbah Chowk,
Near Cold Storage, Madina Colony,
Kalaburagi.
.. Respondents
(By Sri. Syed Fayazuddin, for Sri. Liyaqat Fareed Ustad,
Advocate for R-1 to R-3; R-4 to R-6 and R-8 - served, but
Un-represented; Notice to R-7 - held sufficient vide order
Dated 16-01-2019; Notice to R-9 - held sufficient vide
Order dated 17-07-2018)
****
This Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, 1908, praying to allow the revision
petition, call for records and set aside the order dated 31-01-2018
passed on I.A.No.2 by the defendant No.4/revision petitioner
herein under Order 7 Rule 11(d) in O.S.No.238/2017 by the Court
of the III Additional Civil Judge at Kalaburagi, the certified copy of
which is at Annexure A and to pass any other appropriate orders,
in the interest of justice.
This Civil Revision Petition having been heard through
Physical hearing/Video Conferencing Hearing and reserved for
orders on 12-08-2021, coming on for pronouncement, this day,
the Court made the following:
ORDER
The present petitioner is defendant No.4 in the Original Suit No.238/2017, instituted by the present respondents No.1 to 3, as plaintiffs, for the relief of declaration and perpetual injunction in the Court of the learned III Additional Civil Judge, Kalaburagi, at C.R.P.No.200007/2018 4 Kalaburagi (hereinafter for brevity referred to as "the Trial Court"). The present respondents No.4 to 6 are the defendants No.1 to 3 and present respondents No.7 to 9 are the defendants No.5 to 7 in the said suit in the Trial Court.
2. After the appearance of the defendant No.4 (present petitioner) in the Trial Court, before filing his written statement, if any, he filed an interlocutory application - I.A.No.II under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as "the CPC"), seeking rejection of the plaint as barred by law. After hearing both side, the Trial Court, by its order dated 31-01-2018, dismissed the said interlocutory application- I.A.No.II. Aggrieved by the same, the applicant in the said Interlocutory Application - I.A.No.II (defendant No.4) has filed the present revision petition.
3. The respondents No.1 to 3 are being represented by their learned counsel, respondents No.4 to 6 and 8, though have been served, but still remained un-represented. The service of notice against respondents No.7 and 9 was held sufficient. C.R.P.No.200007/2018 5
4. Learned counsel for the revision petitioner is physically appearing in the Court and learned counsel for the respondents No.1 to 3 is appearing through video conference. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of revision petition and the impugned order passed by the Trial Court.
5. After hearing the learned counsels from both side and after going through the material placed before this Court, the only point that arise for my consideration is this revision petition is:
Whether the impugned order suffers from any illegality, irregularity or impropriety, warranting interference at the hands of this Court?
6. The undisputed fact remains that, the present respondents No.1 to 3 as plaintiffs, have filed an Original Suit in O.S.No.238/2017, in the Trial Court, against the defendants therein, including the present petitioner (defendant No.4), for declaration and perpetual injunction. In a nutshell, the contention of the plaintiffs in their plaint is that, the "AL-NIDA-E- ISLAM EDUCATIONAL AND CHARITABLE TRUST" (hereinafter C.R.P.No.200007/2018 6 referred to as "the Trust") is a recognised Minority Public Trust. The plaintiffs No.1 to 3 are the Trustees for life, and defendants No.1 to 4 are also the Author of the Principal Trust. However, defendants No.5 to 7 were co-opted as new member trustees to the Trust under an alleged registered Supplementary Deed of Trust on 10-04-2003. The defendants, without the notice and knowledge of the plaintiffs, by passing resolutions dated 15-01-2015 and 15-02-2015, removed the plaintiffs from their respective posts in the Trust, which post of Chairman/President, Principal Trustee and the Treasurer, the plaintiffs 1 to 3 were respectively holding. The defendants also approached the concerned Banks to incorporate their names in the bank account. With these plaint averments, the plaintiffs have sought for the following prayer in their plaint:
"a. It be declared that, the resolution dated 15-01-2015 and 15-02-2015 are illegal, not binding on the plaintiff.
b. It be declared that supplementary deed of trust document No.526/2014-15 dated 05-03-2015 is illegal, non est and not binding on the plaintiffs.
c. The defendants may kindly be restrain from in the affairs of the Trust in the absence of the plaintiffs.C.R.P.No.200007/2018 7
d. Under the facts and circumstances of the case for which the plaintiffs are entitle may kindly granted.
e. Cost of the suit may awarded."
7. The present petitioner who is the defendant No.4 in the Original Suit before the Trial Court, after his appearance, did not file his written statement, but filed an Interlocutory Application- I.A.No.II, under Order VII, Rule 11 (d) of the CPC, seeking rejection of the plaint as barred by the provisions of Section 34 of the Indian Trusts Act, 1882 (hereinafter for brevity referred to as "the Trusts Act") and also Section 92 of the CPC.
In the said application, the applicant/defendant No.4/petitioner herein contended that, the contention of the plaintiffs is in respect of the management of a Trust and Trust property and in such a case, Section 34 of the Trusts Act is attracted. Therefore, the suit filed under Order VII, Rule 1 read with Section 26 of the CPC is not maintainable. It is also contended that, as stated by the plaintiffs, the acts of the defendants are against the provisions of Section 92 of the CPC, as such, for the alleged violation of Section 92 of the CPC, a suit C.R.P.No.200007/2018 8 would lie to the Principal Court of the Original jurisdiction. As such also, the suit before the Trial Court was barred by law.
8. The plaintiffs filed their statement of objections to the said I.A.No.II, stating that none of the contentions of the plaint attract either Section 34 of the Trusts Act nor they are hit by Section 92 of the CPC, though stated that the plaintiffs' suit falls under Section 34 of the Specific Relief Act.
9. After hearing both side, the Trial Court passed the impugned order, rejecting the interlocutory application-I.A.No.II filed by the defendant No. 4(petitioner herein).
10. Learned counsel for the revision petitioner in his argument reiterated the contentions taken up by the petitioner in the Memorandum of the revision petition. He submitted that, admittedly, the Trust is a Public Trust. According to the plaintiffs, they were removed from the Trust and the plaintiffs themselves have stated that, the acts of the defendants attract the provisions of Section 92 of the CPC and therefore, the plaint deserves to be rejected.
C.R.P.No.200007/20189
He submitted that, in view of the Explanation [1] to Section 9 of the CPC, the right to an office is a suit of civil nature, as such, the suit ought to have been filed in the Court of the Principal Civil Court of Original jurisdiction, which is the District Court, as such, the suit filed by the plaintiffs in the Trial Court is barred by law.
11. Learned counsel for the respondents No.1 to 3 in his argument submitted that, the present suit is neither hit by the provisions of Section 34 of the Trusts Act nor by the provisions of Section 92 of the CPC.
12. Section 34 of the Trusts Act reads as follows :
"34. Right to apply to Court for opinion in management of trust property. - Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.C.R.P.No.200007/2018 10
The costs of every application under this Section shall be in the discretion of the Court to which it is made."
A reading of the above Section would go to show that, it is only a Trustee, who, without instituting a suit, can apply by a petition to the Principal Civil Court of Original jurisdiction, for its opinion, advice or direction on any present questions respecting the management or administration of the trust property.
In the instant case, according to the plaintiffs, they are, no doubt, the Trustees, however, by virtue of the impugned resolutions, they have already been removed from the trusteeship of the said Trust.
Secondly, a Trustee approaching the competent Court under Section 34 of the Trusts Act appears to be not for any adjudication of a dispute between himself and the other Trustees, but, it is for an opinion, advice or direction on any present questions respecting the management or administration of the Trust property. Thus, the words "opinion, advice or direction" in Section 34 of the Trusts Act gives the meaning that, it is nothing more than a guidance by a Court for the welfare of the management or C.R.P.No.200007/2018 11 administration of the Trust property. If the dispute is not related to the management or administration of the Trust property, but if the dispute is of challenging some act or acts of some of the Trustees as against the interest of the other Trustees, individually, which does not affect the administration or management of the Trust, then, Section 34 of the Trusts Act would not come into operation. It is also for the reason that, the jurisdiction conferred on the Court under Section 34 of the Trusts Act is a limited jurisdiction. Under the said Section, the Court has not been conferred with the overall jurisdiction in matters arising under a Trust Deed. The Trusts Act has prescribed what the Court can do and inferentially what it cannot do. The jurisdiction of the Court is circumscribed by the provisions of Section 34 of the Trusts Act.
13. In the instant case, the plaintiffs' grievance is not that there is any mis-management of the Trust by the defendants affecting the very object of the Trust or that the plaintiffs are seeking for any opinion, advice or direction on some questions respecting the management or administration of the Trust property by a Court. On the other hand, as already observed C.R.P.No.200007/2018 12 above, the plaintiffs have sought for a specific relief of declaration, to declare that the resolutions dated 15-01-2015 and 15-02-2015 are illegal and not binding on them and also for a further declaration that the Supplementary Deed of Trust document dated 05-03-2015 is illegal, non-est and not binding on the plaintiffs. The said relief sought for cannot be considered as a petition by a Trustee, seeking for 'any opinion, advice or direction' on any present questions respecting the management or administration of the Trust property. Therefore, the main contention of the learned counsel for the petitioner/applicant (defendant No.4) that the suit is with respect to the management of the Trust property, as such, the suit filed under Order VII, Rule 1 read with Section 26 of the CPC, is not maintainable and the same is barred by the provisions of Section 34 of the Trust Act, is not acceptable.
14. The other contention of the petitioner/applicant/ defendant No.4 is that, since the plaintiffs themselves say that there is violation of the provisions of Section 92 of the CPC in the plaint, the suit would lie to the Principal Court of the Original jurisdiction, but not before the Trial Court.
C.R.P.No.200007/201813 Section 92 of the CPC reads as below:
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 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 inquiries;
(e) declaring what proportion of the trust property or of the interest 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.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in C.R.P.No.200007/2018 14 force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:-
(a) where the original purposes of the trust, in whole or in part, -
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or C.R.P.No.200007/2018 15
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.] No doubt, the plaintiffs in their plant itself, in paragraph 7, have stated that, the act of the defendants is illegal, un-
authorised, and against the provisions of the Trusts Act and also against the mandate of Section 92 of the CPC. However, that single sentence cannot be isolated from the pleadings of the plaintiffs and given a separate meaning. When the averments of the plaint are read in its entirety, as already observed above, the plaintiffs' main grouse is about ousting them from the trusteeship of the Trust, which is a Public Trust and inducting the defendants No.5 to 7 as the Trustees by making a Supplementary Deed of Trust dated 10-04-2003. Merely because the plaintiffs were removed from their Trusteeship, by itself, would C.R.P.No.200007/2018 16 not attract the provisions of Section 92 of the CPC, since, admittedly, the present suit is not a representative suit instituted by the learned Advocate General or two or more persons having an interest in the Trust. The plaintiffs have not sought for any direction for the administration of the Trust, on the other hand, the suit is filed by the plaintiffs to vindicate their personal rights, i.e. to claim back their alleged positions as Trustees of the Charitable Trust and for cancellation of two resolutions and the Supplementary Deed of Trust.
15. In a similar circumstance, in the case of Rabiammal Ahamed Maideen Educational Trust, A public charitable Trust represented by its Secretary and Correspondent, S.M. Miskeem & others Vs. K.A. Ahamed Maideen Represented by his Power Agent N.M.A. Noor Maideen & others reported in 2012-4-L.W.141, the High Court of Judicature at Madras was pleased to observe that, where the allegation of breach of trust, direction for administration of Trust is absent, the suit is maintainable and obtaining leave under Section 92 of the CPC is not necessary. It was further observed in the same judgment that, in the absence of seeking any direction for the administration of the Trust and the suit is C.R.P.No.200007/2018 17 filed for the relief of declaration that the Supplementary and amended Deed of Trust are illegal, null and void and also challenging the removal of some of the plaintiffs, then the suit is to be considered as the one filed to vindicate one's personal rights, as such, the suit does not fall within the purview of Section 92 of the CPC.
16. As observed above, in the instant case, since there is no direction sought for the administration of the Trust, on the other hand, the suit is filed by the alleged erstwhile Trustees seeking the relief of declaration that, the resolutions dated 15-01-2015 and 15-02-2015 are illegal and not binding upon them and also have sought for the relief of declaration that the Supplementary Deed of Trust document dated 05-03-2015 is illegal, non-est and further sought for the relief of permanent injunction against the defendants. Thus, it cannot be held that, merely because the plaintiffs at one place in the plaint have stated that there is violation of mandate under Section 92 of the CPC, the suit is hit by Section 92 of the CPC, as such, it has to be instituted in the Principal Court of the Original jurisdiction under the said Section. Thus, the C.R.P.No.200007/2018 18 other point of argument of the learned counsel for the petitioner/applicant, is also not acceptable.
17. It is considering the nature and scope of the suit and the relief sought for in the plaint, the Trial Court has rightly rejected the interlocutory application - I.A.No.II filed by the defendant No.4 (present petitioner) under Order VII, Rule 11(d) of the CPC. I find no illegality, irregularity or impropriety in the impugned order, warranting interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER [i] The Civil Revision Petition stands dismissed as devoid of any merit.
Registry to transmit a copy of this order to the concerned Trial Court, for its information, immediately.
Sd/-
JUDGE BMV*