Madras High Court
Karthik Seshadri vs V.Shanmugham on 27 August, 2012
Author: V. Periya Karuppiah
Bench: V. Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27/08/2012 CORAM THE HON'BLE MR.JUSTICE V. PERIYA KARUPPIAH Applications No. 1163, 2032, 2038 to 2040 and 2188 to 2193 of 2011 in C.S.No. ..... of 2011 B.RAMACHANDRA ADITYAN VS. B.SIVANTHI ADITYAN FOR PETITIONER : KARTHIK SESHADRI FOR RESPONDENT : V.SHANMUGHAM ORDER :
V. PERIYA KARUPPIAH, J.
A.No.1163 of 2011:
This application is filed by the applicants/plaintiffs to grant leave to the applicants under Section 92 of the Code of Civil Procedure to sue the 3rd respondent trust and its trustees and others as per the annexed plaint.
2. A.No.2032 of 2011:
This application is filed by the applicants / respondents 1 to 3 seeking an order to reject / dismiss the application No.1163 of 2011 and the proposed plaint filed along with it by the respondents 1 and 2 herein and for costs.
3. A.No.2038 of 2011:
This application is filed by the applicant / 4th respondent seeking an order to dismiss the application No.1163 of 2011 and the proposed plaint filed along with it by the applicants in that application in limini and for costs.
4. A.No.2039 of 2011:
This application is filed by the applicant / 6th respondent seeking an order to dismiss the application No.1163 of 2011 and the proposed plaint filed along with it by the applicants in that application in limini and for costs.
5. A.No.2040 of 2011:
This application is filed by the applicant / 5th respondent seeking an order to dismiss the application No.1163 of 2011 and the proposed plaint filed along with it by the applicants in that application in limini and for costs.
6. A.No.2188 of 2011:
This application is filed by the applicant / 7th respondent seeking an order to strike the name of the applicant / 7th respondent in Application No.1163 of 2011 and in the proposed suit.
7. A.No.2189 of 2011:
This application is filed by the applicant / 8th respondent seeking an order to strike the name of the applicant / 8th respondent in Application No.1163 of 2011 and also in the proposed suit.
8. A.No.2190 of 2011:
This application is filed by the applicant / 9th respondent seeking an order to strike the name of the applicant / 9th respondent in Application No.1163 of 2011 and in the proposed suit.
9. A.No.2191 of 2011:
This application is filed by the applicant / 10th respondent seeking an order to strike the name of the applicant / 10th respondent in Application No.1163 of 2011 and in the proposed suit.
10. A.No.2192 of 2011:
This application is filed by the applicant / 11th respondent seeking an order to strike the name of the applicant / 11th respondent in Application No.1163 of 2011 and in the proposed suit.
11. A.No.2193 of 2011:
This application is filed by the applicant / 12th respondent seeking an order to strike the name of the applicant / 12th respondent in Application No.1163 of 2011 and in the proposed suit.
12. The applicants in A.No.1163 of 2011 are arrayed as respondents 1 and 2 in other applications. The respondents 1 to 3 in A.No.1163 of 2011 are the applicants in A.No.2032 of 2011. The respondents 4 to 6 in A.No.1163 of 2011 are the applicants in A.Nos.2038 to 2040 of 2011. The respondents 7, 9 to 11 in A.No.1163 of 2011 are the applicants in A.Nos.2188, 2190 to 2193 of 2011. 8th respondent in A.No.1163 of 2011 is the applicant in A.No.2189 of 2011. 12th respondent in A.No.1163 of 2011 is the applicant in A.No.2193 of 2011.
13. For convenience, the rank of parties in A.No.1163 of 2011 is maintained infra.
14. Heard Mr.Karthick Seshadri, learned counsel for the applicants and Dr.Abishek Manu Singvi, learned senior counsel appearing on behalf of Mr.V.Shanmugam, learned counsel for the respondents 1 to 3, Mr.R.Murari, learned counsel appearing for respondents 4 to 6, Mr.R.Thiyagarajan, learned senior counsel appearing for respondents 7 to 12 on behalf of Mr.V.G.Sureshkumar, learned counsel appearing for the respondents 7, 9 to 11 and Mr.P.R.Raman, learned counsel appearing for 8th respondent and Mr.V.Sanjeevi, learned counsel appearing for 12th respondent.
15. The learned counsel for the applicants would submit in his argument that the applicants have filed the present application seeking leave of this Court to institute a suit under the provisions of Section 92 of the Code of Civil Procedure. He would also submit that the third defendant is the trust and the funds of the trust are being continuously siphoned by the respondents 1 and 2 and therefore, the present plaint has been filed for checking all misdeeds and misuse of funds that has been caused by the respondents herein. He would also submit that the respondents have also filed applications for rejection of the leave application A.No.1163 of 2011. He would further submit that the third defendant trust is admittedly a public charitable trust, however, the property of the trust is being managed by the respondents as their private property. He would further submit that the applicants have stated in the plaint as to how the respondents have been mismanaging the funds of the 3rd defendant trust for their personal gains.
16. The learned counsel for the applicants would also submit that the trust has to establish and run a school or college for teaching journalism, new colleges for Arts and Science and to help those new schools and colleges by providing scholarship for students of journalism for Arts and Science, to establish and run the hostel for students, to establish and run the orphanages and to help the orphanages and also other educational purposes. He would also submit that the respondents did not deploy the funds of the 3rd defendant trust for the said purpose for which the trust has been established, but they have been using the trust funds for their personal enrichment and for meeting their commercial needs. He would also submit that the accounts of the trust have not been provided and there is no transparency in the functioning of the trust. He would also submit that the manner of appointment of trustees and the manner of the funds utilised have not been known to anybody, but is put in a cloud. He would further submit that the said breach continues and the persons interested in trust were not given any particulars regarding the management of the trust. He would also submit that the functioning of the trust has been kept secretly by the trustees and no Court or any Authority has peeped into the affairs of the trust.
17. The learned counsel for the applicants would also submit that the first defendant has failed in his attitude in getting approval of the appointment of the trust. The defendants have taken shelter behind the entities and are siphoning the funds of the trust to the said companies or concerns. He would also submit that the defendants 7 to 12 have shared the same office premises of the trust and the office premises of the trust was also being used by them. He would further submit that the principal revenue of those entities is completely dependant upon the trust, as those companies do not have any independent business model or income. He would further submit that the revenues of the trust were skimmed away by those companies and accounted them as their turn over. He would also submit that huge amounts have been received by the 6th defendant and first defendant as remuneration from respondents 7, 8 and 10 out of this skimmed revenues of 3rd defendant have purchased an extent of 15.17 acres of vacant land situate in Perungudi in Old Mahabalipuram Road and this valuable immovable properties are sold for a song to the defendants 1, 5 and 6 by the defendants 7, 8 and 10. He would also submit that the defendants 1, 5 and 6 have become owners of 6,88,300 sq.ft of newly constructed area together with 40% out of 15.17 acres of land, which is not less than Rs.300 Crores. He would also submit that the property worth of Rs.2.05 Crores was mortgaged with Vijaya Bank to obtain a loan of Rs.240 Crores by the defendants 1, 5 and 6 and the defendants 1, 5 and 6 as trustees are misusing their position, which is detrimental to the trust. He would also submit that the sources of the funds for the purchase of the immovable property was none other than the funds of the third defendant trust, since the defendants 7 to 12 do not have independent business model to sustain on their own.
18. The learned counsel for the applicants would further submit that the defendants 7 to 12 are none, but selling agents to debit the trust with huge rate of commission at 25% to 30% for distribution of newspaper 'daily thanthi' through which the defendants 1 and 6 are benefited for several Lakhs of rupees, which is nothing but the siphoning of funds of the trust. He would also submit that the funds have been thus siphoned to the defendants 7, 8 and 10 and consequently, the defendants 1, 5 and 6 who are very much aware of the said transaction had thus, committed breach of the trust by not applying those funds for the utilisation of the object of the trust. He would further submit that the funds of the trust have been absolutely mismanaged.
19. The learned counsel for the applicants would also submit that the appointment of trustees was also not in accordance with the rules of the trust. He would further submit in his argument that the appointment of trustees was not done in accordance with the guide lines made in C.S.Nos.352 and 353 of 1978. He would further submit that the first defendant has been making unjust enrichment by the diverted funds and the ultimate loser is the trust. He would also submit that the provisions of Section 88 of the Indian Trust Act should have been enforced and the wrongdoers should have been issued a direction to return back all the benefits from the trust.
20. The learned counsel for the applicants would further submit in his argument that the Advocate General of the State has also filed a suit against 3rd defendant trust for similar reliefs on the basis of mismanagement. Therefore, he would submit that when the Advocate General has filed the suit under Section 92 of the Code of Civil Procedure, there would be no impediment for this Court to grant leave for filing the suit.
21. The learned counsel for the applicants would further submit that the contentions of the respondents that the applicants seek leave to file the suit on personal vendetta and not with bonafide motives, cannot be sustained. He would emphasise in his argument that the funds of 3rd defendant trust were not properly managed by the trustees and as already submitted, there was a breach of trust and therefore, it has to be looked into the breach of fiduciary duties of the trust and unjust enrichment by the trustees defendants 1, 2, 5 and 6 to be probed and on that basis, suitable directions to be issued for safeguarding the trust. He would also submit that there would not be any personal vendetta in safeguarding the trust funds and it was also commented by the Hon'ble Division Bench of this Court in a judgment reported in 1996 (2) LW 364 (R.Kannan Adityan and four others ..vs.. B.S.Adityan and six others) in between the same parties that the institution of the suit by the plaintiffs would not amount to a personal vindication.
22. The learned counsel for the applicants would also submit that the the contention of the respondents that the suit has been sought to be filed against the trust by the same applicants again and again in order to harass the first defendant, cannot also be true. He would further submit that the cause of action in this suit was not agitated earlier and it is a fresh cause of action and therefore, any person interested in the trust can bring action and there is no question of any harassment of the first defendant or any 'res judicata'. He would cite a judgment of the Hon'ble Apex Court reported in 1996 (1) SCC 735 in order to explain the principle of 'res judicata'. He would further draw the attention of the Court to the judgments reported in 2009 (10) SCC 273 (Ramachandra Dagdu Sonavane (dead) by LRs. And others ..vs.. Vithu Hira Mahar (dead) by LRs. And others) and 2010 (10) SCC 141 (Alka Gupta ..vs.. Narender Kumar Gupta) for the principle that Court cannot make a roving enquiry into the allegations made while considering the preliminary issue with the support of documents. Relying upon the said judgments, the learned counsel for the applicants would submit that the present application is, at a stage prior to suit, for seeking permission to file a suit under Section 92 of the Code of Civil Procedure and therefore, the Court need not do elaborate enquiry, but to satisfy itself regarding the ambit of Section 92 of the Code of Civil Procedure.
23. The learned counsel for the applicants would also submit that the respondents are contending that there was no cause of action disclosed and therefore, there is no question of any permission be granted to launch a suit, which is not true. He would also submit that the siphoning of trust funds by the respondents and using them for their unjust enrichment is the cause of action for launching the suit and at this stage, it cannot be said that the defendants have not committed such pilferage of funds and seek for the dismissal of the application as no cause of action occurred.
24. The learned counsel for the applicants would also submit that the face value of the allegations made in the plaint as well as in the application should have been considered as gospel true to issue an order of grant of leave under Section 92 of the Code of Civil Procedure. He would rely upon the judgments of the Hon'ble Apex Court reported in 2003 (1) SCC 557 (Saleem Bhai and others ..vs.. State of Maharashtra and others), 2005 (7) SCC 510 (Popat and Kotecha Property ..vs.. State Bank of India Staff Association) and AIR 2006 SC 1828 (Mayar (H.K) Ltd., and others ..vs.. Owners & Parties, Vessel M.V. Fortune Express and others) and a judgment of this Court reported in 2004 (2) LW 800 (Sopan Sukhdeo Sable and others ..vs.. Assistant Charity Commissioner & others) in support of his argument.
25. The learned counsel for the applicants would also submit that the respondents 7 to 12 have also filed separate applications for striking their name in the plaint stating that they are not necessary parties and no cause of action arose against them. He would also submit that the respondents also contended that they are not answerable to a suit filed under Section 92 of the Code of Civil Procedure and therefore, the entire cause of action being a joint one, the said collection of causes of action against the defendants cannot be sustained. He would also submit in his argument that such contentions of the defendants 7 to 12 cannot be sustained because the defendants 1 and 6 have predominant role in the affairs of the defendants 7 to 12 companies and they are the owners of the said concern and the 3rd defendant's funds have been siphoned by the defendants 1 and 2 to the benefit of the defendants 7 to 12 and therefore, the defendants 7 to 12 are not strangers, but are necessary parties to the cause of action mentioned in the plaint. He would also submit that the inclusion of the defendants 7 to 12 will not be a misjoinder of parties and the application filed by them for striking their name in the plaint cannot be sustained. He would rely upon a judgment of the Calcutta High Court reported in AIR 1935 Calcutta 805 (Abdul Majid and others ..vs.. Akhtar Nabi and another) for that principle. He would also submit that the defendants 7 to 12, who are the beneficiaries through the siphoning of funds from the third respondent trust could be considered as constructive trustees and those persons are equitably necessary parties to the suit. The judgment of the Hon'ble Apex Court reported in 1996 (4) SCC 622 was relied upon by the learned counsel for the applicants in support of his argument.
26. The learned counsel for the applicants would also submit that the objections raised by the defendants that in an earlier occasion, an application in A.No.3124 of 1982 in A.No.165 of 1981 for inspection of plaint documents for effecting cross examination was filed and the respondents 1 and 2 herein have filed an application in A.No.4738 of 1982 for rejection of A.No.165 of 1981 under Order 11 Rule 21 of the Code of Civil Procedure on the ground that there was no compliance of the order granting inspection and thus, the applications were precluded from seeking leave and the same applicants cannot file the present application, would not apply to the present case, since the present case has been filed on a separate and fresh cause of action. He would also submit that this Court had in an earlier occasion deprecate the conduct of the respondents for adopting dilatory tactics as referred in the judgment cited in 1996 (2) LW 364 (R. Kannan Adityan and four others ..vs.. B.S.Adityan and six others). He would therefore, request the Court to permit the applicants to institute a suit against the defendants 1 to 12 under Section 92 of the Code of Civil Procedure and there would not be any prejudice caused to the defendants if the suit is filed and proceeded. He would also submit that if any truth is found in the allegations made by the respondents/defendants, the grant of leave would not be a bar for rejecting the claim of the plaintiff at that time on the basis of evidence. Therefore, he would request the Court to grant leave to institute the suit against the defendants 1 to 12 and to order the application in A.No.1163 of 2011 and consequently, to dismiss the applications filed by the respondents 1 to 12 for the dismissal of the application in A.No.1163 of 2011.
27. The learned senior counsel Dr.Abishek Manu Singvi would submit his argument on behalf of the respondents 1 to 3 that the applicants have launched the present lis in 9th round of litigation and it is an abuse of process of Court. He would further submit that the litigation commenced in the year 1978 is successfully continued by the applicants and they are barred by 'issue estoppel' from continuing these proceedings. He would also submit that the object of Section 92 of the Code of Civil Procedure is to give additional protection cover and also prevention of harassment to the charities, but the applicants are tending to misuse the said provisions since the newspaper namely 'dina thanthi' as published by the respondents 1 to 3 is standing as No.1 paper in circulation and in order to clip the feathers of the newspaper the applicants are attempting to file these litigations.
28. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the activities of the trust are promptly conducted and the funds received by the trust are audited promptly by M/s.Frazer & Ross in accordance with the direction of the Hon'ble Apex Court and the audit reports are being submitted periodically without fail till today.
29. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the founder and father Mr.S.P.Adhithanar (jpU/rp/gh/Mjpj;jdhh;) had two sons namely, first applicant and first respondent. The second applicant is the son of the first applicant and his brother is one Kathirvelu. The second respondent is the son of the first respondent herein and since the respondents 1 and 2 are successfully conducting the trust, the applicants have developed jealous and in order to vindicate their personal objectives, they have filed the present proceedings as if the trust obligations were breached.
30. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that new cause of action has been created for the purpose of launching the present proceedings and it was actually a continuation of the earlier cause of action. He would further submit that the judgment of the Hon'ble Apex Court in a proceedings between the same parties would disclose that the proceedings launched by the first applicant with other persons was vexatious and groundless. He would further submit that adding of any new party is not a new cause of action and the earlier litigations have been repeated with inclusion of new parties and therefore, it cannot be said that new cause of action has arisen for taking action under Section 92 of the Code of Civil Procedure against the respondents. The said approach of the applicants is basically wrong and is not permissible under the provisions of Section 92 of the Code of Civil Procedure.
31. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the applicants have filed the present suit motivated to wreck vengeance on their private affairs. He would cite a judgment of the Hon'ble Apex Court reported in 2008 (4) SCC 115 (Vidyothaya Trust ..vs.. Mohan Prasad R and others) in support of his argument. He would also rely upon two more judgments of the Hon'ble Apex Court reported in 1991 (1) SCC 48 (R.M.Narayana Chettiar & another ..vs.. N.Lakshmanan Chettiar and another) and (1974) 2 SCC 695 (Swami Paramatmanand Saraswati and another ..vs.. Ramji Tripathi and another) in support of his argument.
32. While describing the earlier litigations, the learned senior counsel appearing on behalf of the respondents 1 to 3 would point out that the first applicant with his uncle filed an application in A.No.3147 of 1978 under Section 92 of the Code of Civil Procedure for leave to file a suit against the trust to remove the defendants 1 and 2 as trustees and to render accounts by making various allegations. However, the said application was withdrawn by the second applicant / his uncle without obtaining any permission from the Court under Order 23 Rule 1 of the Code of Civil Procedure. Thereafter, the first applicant awaited for his second son to attain majority and instructed his two sons to file an application in A.No.165 of 1981 under Section 92 of the Code of Civil Procedure seeking leave to file a suit against the said trust on the very same set of allegations. In the said application, the defendants entered appearance and sought permission to cross examine the applicants / two sons of the first applicant herein. The said application was dismissed, however, the Hon'ble Division Bench had permitted to cross examine the applicants therein, which was confirmed by the Hon'ble Supreme Court in the Special Leave Petition preferred by them.
33. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the defendants 1 and 2 filed an application in A.No.3124 of 1982 seeking a direction against the applicants therein, (the sons of the first applicant herein), to give inspection of the documents produced by them. He would further submit that the said application was dismissed by the learned single Judge and the Hon'ble Division Bench on appeal gave permission to give copies of those documents. The Special Leave Petition preferred by the applicants was dismissed with certain directions. He would also submit that the cross examination done against the applicants therein would reveal that they have produced spurious documents.
34. Apart from that, 4th round of litigation started when the defendants 1 and 2 filed an application in A.No.4738 of 1982 to dismiss the application in A.No.165 of 1981 for non-compliance of the order of the Court issued under Order 11 Rule 21 of the Code of Civil Procedure. He would further submit that the said application was allowed and thereby, the application in A.No.165 of 1981 was dismissed and against which, the applicants therein (two sons of the first applicant herein) filed O.S.A.Nos.105 and 106 of 1983 and those appeals were dismissed by the Hon'ble Division Bench of this Court and in the Special Leave Petitions preferred in S.L.P.Nos.3362 and 3363 of 1987, the Hon'ble Apex Court had permitted them to file counter in order to meet all the allegations made by the applicants therein and rejoinder was also permitted to be filed in that application. However, the Special Leave Petitions were fully heard and those petitions were dismissed by the Hon'ble Apex Court and thereby, leave application filed in A.No.165 of 1981 was dismissed.
35. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the 5th round of litigation started when the defendants 1 and 2 took steps to appoint three additional trustees. The first applicant herein filed an application under Section 92 of the Code of Civil Procedure in A.No.33 of 1994 seeking various reliefs including the relief of removal of the defendants 1 and 2 as trustees and a detailed counter was filed by the defendants 1 and 2 and thereafter, an application in A.No.1030 of 1994 was filed to implead new trustees as respondents and to amend the proposed plaint by including allegations against them. Those applications were objected by the defendants 1 and 2 by filing counter and the defendants 1 and 2 filed an application in A.No.2421 of 1994 for rejecting the said application in A.No.33 of 1994.
36. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that in the meanwhile, the two sons of the first applicant filed a suit in C.S.No.1509 of 1994 for declaration that all the orders passed by the Courts including the Hon'ble Supreme Court dismissing their application in A.No.165 of 1981 are null and void. He would further submit that the defendants 1 and 2 filed an application in A.No.6571 of 1994 to reject the plaint in C.S.No.1509 of 1994 and a common order was passed along with the application in A.No.2421 of 1994 filed by the defendants and the application in A.No.2421 of 1994 was allowed and the application in A.No.33 of 1994 was dismissed and consequently, A.No.215 of 1994 and 1901 of 1994 for impleadment by third parties and A.No.1030 of 1994 filed by the plaintiffs for amendment were also dismissed. Consequently, the application in A.No.6571 of 1994 to reject the plaint was allowed and the suit in C.S.No.1509 of 1994 was also dismissed.
37. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the orders were appealed by the then applicants in O.S.A.No.62 of 1996 against the dismissal of A.No.33 of 1994; O.S.A.No.63 of 1996 against the order in A.No.2421 of 1994; and O.S.A.No.64 of 1996 against the order dismissing the application in A.No.1030 of 1994 for amendment. The third parties, who sought impleadment, had also preferred O.S.A.Nos.128 and 129 of 1996 against the order of dismissal of the applications for their impleadment and yet another appeal in O.S.A.No.54 of 1996 was preferred against the dismissal of the suit in C.S.No.1509 of 1994. He would also submit that all those appeals were clubbed together and heard and the Hon'ble Division Bench held that under Section 92 of the Code of Civil Procedure, the proceedings were administrative in nature and Section 141 of the Code of Civil Procedure cannot be invoked. He would also submit that the judgments cited by the defendants 1 and 2 in respect of two Hon'ble Division Bench were not referred to. Against the said orders of the Hon'ble Division Bench of this Court, Special Leave Petitions were preferred and subsequently, they were converted to Civil Appeals in C.A.Nos.12915 to 12920 of 1996 and stay order was granted and auditors were appointed to scrutinize the accounts of the trust and the reports were directed to be submitted once in six months before the High Court. The said direction is being continued and they are filing statements till date. He would further submit that the Special Leave Petitions were disposed of by saying that the defendants are at liberty to file application for revocation of leave on the grounds mentioned by the Hon'ble Apex Court in 1994 Supreme Court judgment (Lakshmanan Chettiar Case).
38. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the sixth round of litigation would come into picture when the first applicant filed a suit in C.S.No.498 of 2004 along with three original plaintiffs after dropping the two Advocates sought for impleadment. He would also submit that the defendants 1 and 2 have filed an application in A.No.3640 of 2006 and 2065 of 2007 to reject the suit in C.S.No.498 of 2004 on the ground that the suit instituted by four plaintiffs is incompetent, since joint leave had been granted in favour of six persons, whereas four plaintiffs have filed the suit. However, the said application was dismissed and the Hon'ble Division Bench on appeal by the defendants 1 and 2 in O.S.A.Nos.191 and 194 of 2007 allowed both the appeals upholding the contentions of the defendants 1 and 2.
39. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the application filed to reject the plaint in C.S.No.1509 of 1994 on the ground that the plaintiff had not challenged the main order, was dismissed by the learned single Judge, but on appeal the Hon'ble Division Bench allowed the application and dismissed the suit. He would further submit that the Review Application filed by the second applicant was also dismissed by the Hon'ble Division Bench. The Special Leave Petitions preferred in SLP.Nos.17672 and 17673 of 2010 was withdrawn and the Hon'ble Apex Court was pleased to observe that it is open to those petitioners to pursue their remedy available in law.
40. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit in his argument that the first applicant filed a suit in C.S.No.498 of 2004 for appointing him as an additional trustee and the same was also dismissed and no appeal has been preferred. Now, the 9th round of litigation has been started by the applicants 1 & 2 by filing this present application in A.No.1163 of 2011 seeking leave to file the suit under Section 92 of the Code of Civil Procedure on the said circumstances and the reasons stated therein. He would also submit that the present application has been filed for the same reliefs on the same allegations, thus continuing their 33 years of litigation against the trust. He would also submit that the filing of the present application are nothing but the abuse of process of law containing same set of baseless and vexatious allegations, which is also barred under Order 2 Rule 2 and Order 23 Rule 1 of the Code of Civil Procedure.
41. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit in his argument that the members of the public have made no complaints anywhere regarding the management and administration of the trust, but the applicants who were having personal animosity against the defendants 1 to 3 had come forward with this application seeking permission under Section 92 of the Code of Civil Procedure in order to vindicate their private and personal rights, which is not sustainable. The learned senior counsel would cite a judgment of the Hon'ble Apex Court reported in (1974) 2 SCC 695 (Swami Paramatmanand Saraswati and another ..vs.. Ramji Tripathi and another) in support of his arguments.
42. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit in his argument that the charitable trust namely, Thanthi Trust will have its income depending upon the generation of the funds by the trustees by running the business efficiently and diligently. He would also submit that this efficient and diligent of the persons in the administration and management of the business which makes the business successful and it could be evidenced from the value of the business undertaking, which was at Rs.1.25 lakhs in the year 1954 and which was having two centres for its publication in which the business was housed in rental buildings only. He would further submit that the business developed now for a circulation of more than 15 lakhs copies per day competing with other dailies, namely, Dinakaran, Dinamalar and Dinamani and this newspaper is having No.1 readership in Tamil Nadu and it is published from 15 centres including one at Bangalore in Karnataka State, one at Pudhucherry and one at Mumbai in Maharashtra State. He would further submit that the trust is having its own building in 11 centres, which would show the development of the business by the present trustees. He would also submit that the trust had donated nearly 162 Crores of rupees for education in all these years and as such, they have also increased the estates by several times and at the same time, made very large donations for education. He would further submit in his argument that the development and the improvement of the business was caused only due to the sincere and devoted service and the efficient and prudent management of the trustees all these years.
43. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the first applicant was irritated by such development, who had also started a rival Tamil morning daily newspaper "Kathiravan" in 1994, but he had closed the same within few years unable to continue the publication.
44. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the present allegations made in the plaint as well as the affidavit filed in support of the petitions were already made in the proceedings conducted in the year 1978, 1981, 1993 and 2011. He would further insist in his argument that the reliance placed by the learned counsel for the applicants over the judgment of the Hon'ble Division Bench made in O.S.A.Nos.62 and 63 of 1996 that the first applicant has got direct interest and the second applicant being the grand son of the founder having interest in his favour cannot be sustained. He would also submit that the comments made by this Court in A.No.3640 of 2007 by his Lordship Honourable Mr.Justice.V.Ramasubramaniam that the respondents never allowed to get at the allegations made against them to be tried by any Court which could be substantiated in the evidence of a suit cannot also be sustained, since the said judgment of the learned single Judge was reversed by the judgment of the Hon'ble Division Bench of this Court.
45. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit in his argument that the allegation that the first respondent has got the respondents 7 to 12 companies incorporated and is having direct and indirect control over the same cannot also be sustained, since incorporation is different and the companies so incorporated are the individual legal entities. He would further submit in his argument that the further argument of the learned counsel for the applicants that the bar under Order 11 Rule 21(2) of the Code of Civil Procedure would not apply to the present allegations made by the second applicant, cannot also be sustained. He would further submit that the allegations made in the proposed plaint are based upon the same set of frivolous and baseless allegations, which had been continuously made in order to harass the trust and the trustees. He would further submit that it is an attempt of the applicants to get hold of the trust business and not at the interest of the trust or the public.
46. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the allegations made in para-72 of the proposed plaint that the respondents 1 and 2 have stolen the trust funds and lands have been purchased by the companies and the companies have sold it to the trustees could be easily falsified by the very same documents produced by the applicants in Doc.Nos.64, 67, 68 to 72. He would also submit that those properties were purchased by the companies themselves with their moneys several years back by paying the consideration through the bank pay orders. He would further argue that the averments made in the plaint are mutually contradictory and destructive and one such instant is their own document No.52 in pages 812 and 813 of applicants paper book, which would clearly mentioned the security as 15.17 acres of land together with saleable built up area falling to the share of the borrowers in the building erected or to be erected.
47. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the third defendant trust had to file audited statement of accounts certified by Chartered Accountants before the Income Tax Department while claiming exemption under Income Tax Act in order to show that the income has been applied to charitable objects like education and other purposes. He would also submit that on every year, the said audited statement of accounts was approved by the Income Tax Department to give exemption and therefore, the allegations made in the proposed plaint that the account was not promptly maintained by the defendants 1 to 3 cannot be true.
48. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit in his argument that the judgment of the Hon'ble Apex Court in the Special Leave Petitions preferred by the respondents 1 to 3 was only with the liberty to file an application for revocation of leave in the earlier proceedings and that was not the order against the respondents 1 to 3 and therefore, the findings of the Hon'ble Division Bench in O.S.A.Nos.62 and 63 of 1996 did not reach finality since the right to file the application to revoke the leave was granted on the basis of the findings.
49. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the second applicant cannot file the present application seeking permission to file the suit under Section 92 of the Code of Civil Procedure since he is barred under Order 11 Rule 21(2) of the Code of Civil Procedure from filing any fresh suit. He would further submit that the second applicant was also one of applicants in A.No.165 of 1981 filed before this Court seeking similar reliefs and the said application was seriously contested and in the said application, the request of the respondents 1 and 2 for perusing the documents produced in certified copies as well as original in Court, was ordered and when the respondents 1 to 3 had sought for such inspection, the applicants in A.No.165 of 1981 had wilfully disobeyed the orders passed by this Court by not permitting the respondents to peruse those documents and therefore, the respondents 1 to 3 filed an application in A.No.4738 of 1982 for dismissing the application in A.No.165 of 1981 for disobedience of the order passed by the Hon'ble Division Bench in O.S.A.No.160 of 1982. He would also submit that the said application was taken up by the learned single Judge his Lordship Honourable Mr. Justice. T.N.Singaravelu and His Lordship came to a conclusion of allowing the application in A.No.4738 of 1982 and thereby, the application in A.No.165 of 1981 was dismissed. In the said judgment, the judgment of the Hon'ble Apex Court reported in AIR 1978 SC 1436 (Babur Sewing Machine Company ..vs.. Tirlok Nath) has been referred to and it was further found that all the requirements made in the said judgment were complied with and therefore, the applicants therein, in which the second applicant herein was also a party, were barred from filing fresh action.
50. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further submit that the said order of the learned single Judge his Lordship Honourable Mr.Justice. T.N.Singaravelu was questioned before the Honourable Division Bench comprising Hon'ble Mr.Justice S.A.Kader and Hon'ble Mr.Justice. S.Ramalingam and they have also confirmed the order of the learned single Judge and the applicants in A.No.165 of 1981 preferred a Special Leave Petition before the Hon'ble Apex Court and the same was also dismissed. He would also submit that the second applicant herein, who was one of the applicants in that proceedings, was barred under Order 11 Rule 21 (2) Code of Civil Procedure for initiating or bringing a fresh suit on the same cause of action and therefore, the present proposed suit based upon the same cause of action that the second applicant was the grand son of the founder of the trust and is a daily reader of 'Dina Thanthi' paper and also interested in public and general welfare, is not maintainable. The second applicant has brought up an action against the same trust and the respondents. He would also bring it to the notice of this Court a judgment of the Hon'ble Apex Court reported in 2006 (6) SCC 207 (Om Prakash Srivastava ..vs.. Union of India and another) in support of his argument. He would also submit that when the second applicant is barred to bring an action on the same cause of action against the respondent trust, the first applicant alone cannot maintain the application under Section 92 of the Code of Civil Procedure and therefore, the application has to be dismissed summarily.
51. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the father of the applicants and yet another person had initiated an action under Section 92 of the Code of Civil Procedure from the year 1978 onwards and it is a never ending proceeding, which has been initiated on every occasion by the applicants or their father or other persons, who want to vindicate their personal animosity against the respondents 1 to 3. He would also submit that the present litigation even with the second applicant would be a frivolous litigation with the purpose of harassing the respondents and their families. He would further submit that the present litigation is an abuse of process of law and it would be a vexatious one.
52. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the facts in the proposed suit are identical with the earlier suits and the filing of the present proposed suit if permitted, would be amounting to an identical suit by the same persons with one or other. He would also cite judgments of the Hon'ble Apex Court reported in 1998 (3) SCC 573 (K.K.Modi ..vs.. K.N.Modi and others) ; 1998 (1) CTC 66 (Ranipet Municipality represented by its Comer and Special Officer ..vs.. M.Shamsheerkhan) and 2000 (III) CTC 74 (Seeni alias Sundarammal ..vs.. Ramasamy Poosari and two others) in support of his submissions.
53. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further insist in his argument that there was no new cause of action in this suit and the allegations made in this application as well as proposed plaint are identical to those contained in the earlier three applications preferred by the applicants under Section 92 of the Code of Civil Procedure. He would also rely upon the allegation chart prepared by him in order to show that the allegations made in the present applications are identical and similar and had also cited judgments of the Hon'ble Apex Court reported in 2006 (6) SCC 207 (Om Prakash Srivastava ..vs.. Union of India and another); and AIR 1970 SC 987 (Vallabh Das ..vs.. Dr.Madanlal and others) in support of that point of argument. He would also submit in his argument that the main purpose of Section 92 of the Code of Civil Procedure is to give protection to the public trust of charitable nature, but the applicants have indulged in filing legal proceedings with false and frivolous allegations which would result in unnecessary expenses and that expenditure could be used for charitable purpose.
54. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that there is no vindication of public rights, but an attempt to settle personal scores and private disputes only. He would also submit that the applicants are not even interested parties except they are the son and grandson of the founder of the trust. He would also bring it to the notice of this Court a judgment of the Hon'ble Apex Court reported in 2008 (4) SCC 115 (Vidyothaya Trust ..vs.. Mohan Prasad R and others), which would state that the object of Section 92 of the Code of Civil Procedure is to protect the public trusts.
55. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also bring it to the notice of this Court a judgment of the Hon'ble Apex Court reported in 1991 (1) SCC 48 (R.M.Narayana Chettiar & another ..vs.. N.Lakshmanan Chettiar and another) for the principle that when the plaint was found vague and no case was made out, then the suit and application ought to have been dismissed. He would cite a judgment of the Hon'ble Apex Court reported in (1974) 2 SCC 695 (Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another) for the principle that when the alleged breach of trust is not made out, the suit ought to have been dismissed. He would further submit in his argument that the trust must be prevented from harassment as per the judgment of this Court reported in 2004(1) CTC 321 (L.M.Menezes and Others ..vs.. Rd. Rev. Dr. Lawrence Pius and Others)
56. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that the power given to Court under Section 92 of the Code of Civil Procedure is a judicial one and therefore, the grant of leave should be adjudicated judicially. He would rely upon the judgment of the Hon'ble Apex Court reported in 2005 (8) SCC 618 (SBP & Co., ..vs.. Patel Engineering Ltd.,) in support of his argument. The view taken by this Court by his Lordship Honourable Mr.Justice.V.Ramasubramaniam, dated 26.06.2007 that the discretion to be exercised under Section 92 of the Code of Civil Procedure was an administrative act, cannot be sustained in view of the judgment of the Hon'ble Apex Court as aforesaid. Furthermore, he would submit in his argument that the said judgment of the Honourable Mr.Justice.V.Ramasubramanian was also reversed by the Hon'ble Division Bench of this Court. Therefore, he would submit that the judgment of his Lordship Honourable Mr.Justice. V.Ramasubramanian cannot be considered as a previous decision in between the same parties. He would refer to the judgments of the Hon'ble Apex Court reported in AIR 1970 SC 150 ; 2008 (14) SCC 151; and 2011 (2) SCC 258 (Automative Tyre Manufacturers Association ..vs.. Designated Authority and others) in support of his argument.
57. The learned senior counsel appearing on behalf of the respondents 1 to 3 would further insist in his argument that the allegations made in this proceedings were recited and repeated the same allegations of misconduct, misappropriation and siphoning of funds with no other fresh allegations or with any materials whatsoever. He would also submit that the allegations against the respondents 7 to 12, which are incorporated companies, as if the respondents 1 and 2 have got control over the said companies cannot be sustained. He would also submit that those companies are separate legal entities and the respondents 1 and 2 were having no interest except the shares and the position had in the said companies and they have no connection with the third respondent. He would also submit that the allegation made by the applicants that the trust fund was used for the purchase of the land at Perungudi in the name of individuals are without any materials. The said funds were moved only from the personal funds of the respondents 1, 2 and 5 to 10. He would also submit that the reliance placed by the applicants over the judgment of the Honourable Mr.Justice. V.Ramasubramanian cannot be sustained since the said judgment was reversed by the Hon'ble Division Bench of this Court in its judgment dated 08.01.2010 against which, a Special Leave Petition was filed and it was dismissed as withdrawn on 16.07.2010 and therefore, the judgment of the learned single Judge cannot be sustained. The Review Application filed by the second applicant was also dismissed on 25.01.2010. He would further submit that the earlier proceedings filed under Section 92 of the Code of Civil Procedure by the same applicants joining with other persons on the same allegations and cause of action should not have been entertained, since the same was already adjudicated by this Court. He would also submit that the provisions of Section 141 of the Code of Civil Procedure can also be applied to the proceedings under Section 92 of the Code of Civil Procedure and the earlier proceedings in between the same parties ought to have been considered in this proceedings. He would further submit that in the earlier proceedings, various courts have decided the disputes in between the same parties, which are identical to those as in the instant one, and therefore, the application filed under Section 92 of the Code of Civil Procedure can also be barred under Order 2 Rule 2 and Order 23 Rule 1 of the Code of Civil Procedure and the principles of res judicata would also apply. He would also request the Court to peruse the plaint in order to find that no fresh materials have been annexed to the plaint except the contents of the previous plaint.
58. The learned senior counsel appearing on behalf of the respondents 1 to 3 would also submit that it is an attempt by the applicants to renew the dispute filed in the earlier occasions and in order to put the trust in a constant harassment so as to vindicate their private disputes. He would further submit that the plaintiffs have put forth no prima facie case so as to grant leave to file the suit. He would further submit that the present litigation, namely, the proposed plaint and the application seeking the third parties also to be clubbed in a suit under Section 92 of the Code of Civil Procedure cannot be sustained and thus, the application filed under Section 92 of the Code of Civil Procedure may be dismissed and the proposed plaint presented may be rejected.
59. Mr.R.Murari, learned counsel appearing for the respondents 4 to 6 would submit in his argument that the respondents 4 to 6 are the trustees of third defendant trust. He would also submit that the causes of action stated against the respondents 4 to 6 are not true and it should not have been under Section 92 of the Code of Civil Procedure. He would also adopt the arguments of the learned senior counsel Dr.Abishek Manu Singvi, learned senior counsel appearing on behalf of respondents 1 to 3 and would request the Court that the proposed plaint filed against the respondents 4 to 6 may be dismissed and the applications filed by the respondents 4 to 6 for deleting their names in the plaint may be allowed.
60. The learned senior counsel Mr.R.Thiyagarajan appearing for respondents 7, 9 to 12 on behalf of Mr.V.G.Sureshkumar, learned counsel appearing for the respondents 7, 9 to 11 and Mr.V.Sanjeevi, learned counsel appearing for 12th respondent would submit in his argument that the respondents 7 to 12 have filed separate applications for deleting their names in the plaint and reliefs have been sought against R7 to R12 in the proposed plaint. He would also submit that the respondents 7 to 12 being the third parties to the trust, they are unnecessary parties in a suit under Section 92 of the Code of Civil Procedure. He would also submit that the properties owned by the defendants 7 to 9 were purchased by their own funds advanced by the said respondents 7 to 12 and the allegations made in the plaint are unwarranted. He would also submit that the proposed plaint filed against the defendants 7 to 12 is not sustainable. He would also submit in his argument that the reliefs sought for in the proposed plaint would not attract the reliefs enlisted in Section 92 of the Code of Civil Procedure. He would further submit that except the reliefs 'a' and 'b', the relief 'c' sought for in the plaint could not be asked against a third party in a suit contemplated under Section 92 of the Code of Civil Procedure. He would rely upon a judgment of the Privy Council reported in AIR 1928 Privy Council 16 (Abdur Rahim and others ..vs.. Syed Abu Mahomed Barkat Ali Shah and others) in support of his argument. Relying upon the said judgment, he would also submit in his argument that a third party cannot be brought under a suit even under Section 92(b) of the Code of Civil Procedure. He would further rely upon a judgment of Rangoon High Court reported in AIR 1932 Rangoon 132 (Johnson D.Po Min and another ..vs.. U Ogh and others) for the same principle. He would also place reliance on a judgment of the Calcutta High Court reported in AIR (31) 1944 Calcutta 163 (Gobinda Chandra Ghosh alias G.Ghosh and another ..vs.. Abdul Majid Ostagar and others) in support of his argument.
61. The learned senior counsel Mr.R.Thiyagarajan appearing on behalf of respondents 7 to 12 would also submit in his argument that the plaintiffs, who have filed a suit under Section 92 of the Code of Civil Procedure, have to restrict their relief with any one or more under Section 92 of the Code of Civil Procedure and they cannot add any more independent relief, which has not been mentioned in Section 92 and the deviation from Section 92 of the Code of Civil Procedure will vitiate the object of Section 92 of the Code of Civil Procedure. He would cite a judgment of the Hon'ble Apex Court reported in AIR 1952 SC 143 (Pragdasji Guru Bagwandasji ..vs.. Ishwarlalbhai Narsibhai and others) in support of his argument. He would also cite two more judgments of the Hon'ble Apex Court reported in AIR 1967 SC 1044 (Bishwanath and another ..vs.. Sri Thakur Radha Ballabhji and others) and AIR 1972 SC 246 (Harendra Nath Bhattacharya and others ..vs.. Kaliram Das (dead) by his legal representatives and others) for the same principle. He would also submit in his argument that the case of the applicants is a clear fall out of Section 92 of the Code of Civil Procedure and the permission sought for against all the defendants would also disentitle the applicants from proceeding against the respondents 1 to 3. He would refer a Hon'ble Full Bench Judgment of Allahabad High Court reported in AIR 1975 Allahabad 36 (Uma Shanker and others ..vs.. Salig Ram and others) in support of his argument. He would also refer to a passage from the said judgment at Page 43 that no decree can be passed in a suit against third party under Section 92 of the Code of Civil Procedure. He would insist in his argument that in a suit under Section 92 of the Code of Civil Procedure no stranger can be made as a party and if it is done so, the entire suit itself becomes defective and is not maintainable under Section 92 of the Code of Civil Procedure. Therefore, he would request the Court that the proposed plaint filed against the defendants 7 to 12 is not maintainable and the applications filed by the defendants 7 to 9 have to necessarily be ordered.
62. Mr.P.R.Raman, learned counsel appearing for 8th respondent would submit in his argument that the 8th respondent is also a third party and no suit can be laid against the 8th respondent under Section 92 of the Code of Civil Procedure along with the trust. He would also submit that the causes of action stated against this respondent are not true and it should not have been brought under Section 92 of the Code of Civil Procedure. He would also adopt the arguments of the learned senior counsel Mr.R.Thiyagarajan and would request the Court that the proposed plaint filed against the 8th respondent may be rejected and the application filed by the 8th respondent for deleting its name in the plaint may be allowed.
63. I have given anxious thoughts to the arguments advanced on either side.
64. The admitted factual matrix, which are necessary for the purpose of appreciating the contentions of either parties would be that the litigation pertains to the well known "Thanthi Trust" which publishes the popular Tamil Daily "Dinathanthi" (Daily Thanthi) simultaneously at present from 15 centres in Tamil Nadu. This public trust was founded by a deed of trust dated 01.03.1954 by the late S.B.Adityan, reverentially known as Si.Pa.Adhithanar, a former speaker of the Madras Legislative Assembly and a former Minister of the Government of Tamil Nadu. The second applicant is the grandson of the founder, being the son of his elder son B.R.Adityan, the first applicant herein. The first respondent herein, B.S.Adityan, is the younger son of the founder. The object of this trust is to establish 'DINATHANTHI' or 'DAILY THANTHI' as an organ of educated public opinion for the Tamil reading public, to disseminate news and to ventilate opinion upon all matters of public interest through the said newspaper and to maintain the said newspaper and its position in efficient condition devoting the surplus income of the said newspaper and its press after defraying all expenses in improving and enlarging the said newspaper and its services and placing the same on a footing of permanency. By a supplemental deed of trust dated 28.06.1961, the founder enlarged the objects of the trust and directed the utilisation of the surplus income of the trust for (1) establishing and running a school or college for the teaching of journalism;
(2) establishing and / or running or helping to run schools, colleges and other educational institutions for teaching arts and science;
(3) establishing scholarship for students of journalism, arts and science;
(4) for establishing and / or running or helping to run hostels for students;
(5) establishing and / or running or helping to run orphanages; and (6) other educational purposes.
By the original deed of trust dated 01.03.1954 the founder appointed himself, his elder brother S.T.Adityan and his elder son B.R.Adityan as trustees. On 19.05.1959, the founder's elder son the first applicant herein and father of the second applicant herein, B.R.Adityan resigned his trusteeship. Thereupon, the founder appointed his younger son, the first respondent herein and the Educational Trustee Company Private Limited, the second respondent herein as trustees of Thanthi Trust. On 08.11.1961, the founder himself resigned his trusteeship and his elder brother S.T.Adityan resigned on 27.12.1963. The respondents 1 and 2 continued to be the trustees of the Thanthi Trust.
65. The following facts are also admitted:- In 1978, the founder appointed himself, his elder brother S.T.Adityan and his elder son B.R.Adityan as additional trustees again, which led to a spate of litigation. The first respondent herein filed O.S.Nos.352 and 353 of 1978 on the file of this Court after obtaining necessary permission under Section 92 of the Code of Civil Procedure challenging the appointment of the additional trustee by the founder. As a counter-blast, the first applicant herein, B.R.Adityan and the founder's elder brother S.T.Adityan filed Application No.3147 of 1978 for leave to sue under Section 92 of the Code of Civil Procedure for removing the first respondent from trusteeship. The application was resisted by the first respondent. Pending the proceedings, the three additional trustees viz., the founder, his elder brother S.T.Adityan, and his elder son and the first applicant herein, B.R.Adityan resigned their trusteeship and the Application No.3147 of 1978 for leave to sue was also withdrawn. Consequently, the first respondent withdraw his suits in C.S.Nos.352 and 353 of 1978 as they became infructuous on account of the resignation of the additional trustees. These proceedings accordingly came to an end. About two and a half years later, litigation cropped up again when the two sons of the first applicant including the second applicant herein filed an Application No.165 of 1981 under Section 92 of the Code of Civil Procedure for leave to sue. Along with the application, a copy of the proposed plaint was produced into court containing several allegations of malfeasance, misfeasance and nonfeasance against the first respondent. The same was resisted by the first respondent herein on the ground that the application for leave was actually filed at the instance of the first applicant herein and the applicants in the said application were not seeking to agitate any public right, but only vindicating their personal right against the first respondent.
66. In the said proceedings, the first respondent filed an application in A.No.879 of 1981 for summoning the applicants in A.No.165 of 1981 for cross examination and the said application was dismissed by the learned single Judge of this Court on 21.09.1981, against which O.S.A.No.152 of 1981 was filed and after the hearing of the appeal, the Honourable Division Bench allowed the said appeal on 15.03.1982 directing the applicants in that application be cross-examined. The applicants in A.No.165 of 1981, aggrieved by the judgment of the Honourable Division Bench, had preferred SLP.No.6040 of 1982 before the Honourable Apex Court and the said Special Leave Petition was dismissed with an observation that the cross examination of the applicants in that application shall be confined to the question of principles of sanction governing the grant of leave to file the suit. The first respondent thereafter filed an application in A.No.3124 of 1982 under Order 11 Rule 18 of the Code of Civil Procedure for inspection of plaint documents for doing effective cross examination of the applicants in A.No.165 of 1981 and the said application was dismissed by the learned single Judge on 02.09.1982 and against which, the first respondent preferred an appeal in OSA.No.160 of 1982 and the said appeal was allowed on 08.10.1982. Thereafter, the first respondent had also filed another application in A.No.4738 of 1982 to reject A.No.165 of 1981 under Order 11 Rule 21 of the Code of Civil Procedure on the ground that there was non-compliance of the order of the Honourable Division Bench in providing or to inspect the documents. The said application in A.No.4738 of 1982 was heard and on finding that the direction issued by the Honourable Division Bench was not complied with by the applicants in A.No.165 of 1981, the said request of the first respondent was allowed in A.No.4738 of 1982 and consequently, A.No.165 of 1981 was dismissed on 11.02.1983. The/they continued waging of legal battle before the Honourable Division Bench by preferring an appeal against the said orders in O.S.A.Nos.105 and 106 of 1983 were ended against the applicants therein and the said judgment and decree were questioned in Special Leave Petitions filed before the Honourable Apex Court and they were dismissed on 18.01.1993. With the said order passed by the Honourable Apex Court, the applicants in A.No.165 of 1981 were defeated in filing a plaint under Section 92 of the Code of Civil Procedure against the respondents 1 to 3.
67. However, the first applicant herein along with three other persons said to have been interested in the affairs of the 3rd respondent trust filed an application in A.No.33 of 1994 seeking leave to sue under Section 92 of the Code of Civil Procedure. An application for amendment plaint in A.No.1030 of 1994 was also filed by the first applicant to implead the new trustees inducted in the meanwhile and out of them, one P.Marudai Pillai and R.Somasundaram expired and the only trustee appointed then available is the 4th respondent in this application. The first respondent filed A.No.2421 of 1994 to reject A.No.33 of 1994 under Order 7 Rule 11 of the Code of Civil Procedure on various grounds. During the pendency of the said application, two practicing advocates filed A.No.215 of 1994 to implead themselves as parties in A.No.33 of 1994. However, one of the advocates withdrew from pursuing and the remaining advocate had to file a separate application in A.No.1901 of 1994 to implead himself as a party in A.No.33 of 1994.
68. The second applicant and his brother one Kathiresa Adityan filed a suit in C.S.No.1509 of 1994 seeking a declaration that the dismissal order of A.No.165 of 1981 was vitiated by fraud played by the first respondent and the respondents had filed an application in A.No.6571 of 1994 to reject the said plaint under Order 7 Rule 11 CPC. The said application in A.No.2421 of 1994 to reject the application in A.No.33 of 1994 was allowed by the learned single Judge and consequently, the application in A.No.215 of 1994 and 1901 of 1994 were dismissed and the suit filed in C.S.No.1509 of 1994 was rejected as the application in A.No.6571 of 1994 was also allowed. The second applicant herein filed OSA.No.54 of 1996 against the order of rejecting the suit in C.S.No.1509 of 1994 and the said OSA was sought to be withdrawn by the brother of the second applicant Nr.Kathiresa Adityan, which was not permitted by the Honourable Division Bench.
69. Apart from that, the first applicant and three others, who were aggrieved by the orders made in the applications in A.No.33 of 1994, A.No.215 of 1994 and A.No.1901 of 1994 had preferred appeals in OSA.Nos.62, 63 and 64 of 1996 before the Honourable Division Bench and those appeals were allowed and the dismissal of A.No.33 of 1994 was set aside. Consequently, other appeals in OSA.Nos.128 and 129 of 1996 filed against the dismissal of A.Nos.215 of 1994 and 1901 of 1994 were also allowed. The aggrieved first respondent and others filed Special Leave Petitions before the Honourable Apex Court and leave was granted and Civil Appeals were numbered in C.A.Nos.12915 to and 12920 of 1996. On hearing of those appeals, the Honourable Apex Court dismissed those appeals on 16.04.2004 and the Review Applications filed thereon were also dismissed and the permission sought for in A.No.33 of 1994 was allowed and the suit was registered in C.S.No.498 of 2004.
70. In the meanwhile, the brother of the second applicant Mr.R.Kathiresa Adityan one of the plaintiffs in C.S.No.1509 of 1994 filed an application in A.No.31 of 2007 for withdrawing himself from the suit. On that basis, the respondents 1 to 3 filed an application in A.No.5183 of 2006 to reject the plaint, since the second applicant had withdrawn from the proceedings and also on the ground that the order passed in A.No.4738 of 1982 was not challenged by the applicants therein. Similarly, the respondents 1 and 2 filed application in A.No.3640 of 2006 to reject the suit in C.S.No.498 of 2004 under Order 7 Rule 11 of the Code of Civil Procedure since all of them have not joined as plaintiffs despite they were given permission to institute the suit. The then trustee Mr.R.Somasundaram filed an application in A.No.30 of 2007 in C.S.No.1509 of 1994 to reject the plaint on the same grounds as urged in the application in A.No.3640 of 2006 by the respondents 1 to 3. On hearing of the application in A.No.31 of 2007, Mr.R.Kathiresa Adityan was permitted to withdraw the suit in C.S.No.1509 of 1994 on 09.01.2007, against which the second applicant herein filed an appeal in OSA.No.23 of 2007 and the second applicant was permitted to continue his suit unaffected by the withdrawal by the co-applicant. Immediately, the respondents 3 and 4 filed an application in A.No.2065 of 2007 to reject the plaint on the very same grounds and the same was dismissed by the learned single Judge clubbing the application in A.No.3640 of 2006, which was filed to reject the plaint in C.S.No.498 of 2004 on 27.06.2007. Similarly, the applications filed by the trustee - 4th defendant and the then trustee Somasundaram in A.No.30 of 2007 and another application in A.No.5183 of 2006 were also dismissed on that day. The aggrieved respondents filed appeals in OSA.Nos.196 and 197 of 2007 and also appeals in OSA.Nos.191 and 194 of 2007 and the appeals were allowed by the Honourable Division Bench on 08.01.2010. The Review Applications filed by the applicants herein were also dismissed and the Special Leave Petitions preferred by the first applicant and two others in SLP.Nos.17672 and 17673 of 2010 were dismissed as withdrawn and liberty was granted to the applicants therein to take steps in accordance with law.
71. The aforesaid series of litigation battled in between the parties would show that the filing of suit and application under Section 92 of the Code of Civil Procedure were constantly proceeded by the applicants herein as well as others along with yet another brother of the second applicant namely, Kathiresa Adityan. However, the net result in this series of litigation was lastly ended with SLP.Nos.17672 and 17673 of 2010 with the orders dated 16.07.2010. It was argued by the learned counsel for the applicants that the first applicant was a party in the said proceedings and the second applicant was not a party. However, they have joined together as interested persons in the trust so as to launch the present suit by stating that it is for the welfare of the trust and the public. It has also been argued that the Honourable Apex Court had given directions thereby liberty was granted to the applicants therein to take steps in accordance with law. Even though the second applicant was not a party to enjoy the liberty given by the Honourable Apex Court in the said order, whether it would also include him for giving the benefit of taking steps to launch the proceedings after obtaining the permission under Section 92 of the Code of Civil Procedure is a pertinent question.
72. No doubt, in the earlier proceedings as discussed above the object of the trust as contemplated in the trust created by the founder and others would go to show that it is a public trust. On various occasions, the applications under Section 92 of the Code of Civil Procedure were entertained and were closed not because that it was not a public trust, but for some other reasons. Therefore, the applicability of Section 92 of the Code of Civil Procedure seeking permission to launch any proceedings against the third respondent trust would be certainly under the provisions of Section 92 CPC. There is no second opinion that the suit against the third respondent can be filed without obtaining permission under Section 92 CPC.
73. Of course, it was brought to the notice of this Court regarding a suit filed by the Advocate General against the trust and it is said to be pending. It was also referred in the written arguments submitted by the learned counsel for the applicants. No further details have been given as to its number and other particulars regarding the parties to the said suit. Merely because the Advocate General has taken cognizance of the request of the application of the applicants therein and had filed the suit against the third respondent trust, the present application cannot be allowed, because the factual circumstances may be different from the facts and circumstances given in this plaint and application. Therefore, the mere filing of the suit by the Advocate General will not give any room for appreciating the contentions of the applicants in these applications.
74. The main argument addressed before this Court on behalf of the respondents 1 to 3 would be that the applicants have filed series of applications under Section 92 of the Code of Civil Procedure and they failed in their attempt. It was also placed before this Court that the first applicant was having a newspaper in the name of 'Malai Murasu' and he attempted to launch a morning daily in the name of 'Kathiravan' and he failed in his attempt to bring the said newspaper 'Kathiravan' as a popular daily. By the administration and the management of the third respondent with the active and intelligent management of the respondents 1 and 2, the circulation of daily had reached more than 15 lakhs copies per day competing with other dailies and is standing as No.1 newspaper in the State published from 15 centres and enraging upon the said fact and by growing personal animosity, the first applicant had all these days disturbed the trust in one way or other to vindicate his personal right and filed the present application also. The learned senior counsel had cited a judgment of the Honourable Apex Court in this regard when the vindication of private right has been seen and the public interest or public right is found absent in the averments made in the applications, the permission under Section 92 of the Code of Civil Procedure could not be granted despite other requisites are fulfilled.
75. The learned Senior counsel appearing for the respondents 1 to 3 would submit in his argument that the suit was filed under Section 92 of the Code of Civil Procedure as if the relief sought for by the plaintiffs was maintainable under Section 92 CPC. He would further submit that the suit itself is for vindication of private rights and the suit has not been filed by the plaintiffs for the reliefs as set out in Section 92 and on that aspect the suit itself is not maintainable. He would cite a judgment of the Hon'ble Apex Court reported in (1974) 2 SCC 695 (Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another) in support of his arguments.
76. The judgment of the Hon'ble Apex Court as cited by the learned Senior Counsel for the respondents reported in (1974) 2 SCC 695 (Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another) would categorically laid down as follows:-
"10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had 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 92 are made out; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N.Shanmukham Chetty v. V.M.Govinda Chetty, Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga, Sugra Bibi v. Hazi Kummu Mia and Mulla : Civil Procedure Code (13th edition) Vol.1, p.400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92."
In the aforesaid judgment, it has been laid down that a suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under Section 92 CPC.
77. Furthermore, the contentions raised by the respondents 1 to 3 for refusing permission was that the second applicant had joined with his brother Kathiresa Adityan in filing an application under Section 92 of the Code of Civil Procedure on the same allegations in A.No.165 of 1981 and the said application was ultimately dismissed for the non-compliance of the directions issued in an application filed under Order 11 Rule 21 CPC. The respondents 1 to 3 were also on the point that the non-compliance of the order passed by the Court for discovery under Order 11 Rule 21 (1) of the Code of Civil Procedure will prohibit the said applicants in that application from bringing a fresh suit on the same cause of action. For the said point, a judgment of the Hon'ble Apex Court reported in 2006 (6) SCC 207 (Om Prakash Srivastava ..vs.. Union of India and another) was cited by the learned counsel for the respondents 1 to 3. The relevant passage in para 12 runs as follows:-
" 12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action".
78. According to the said dictum laid down by the Honourable Apex Court, the cause of action means necessary condition, fact or requirement for maintaining the suit. The second applicant herein was stated to have got interest in the third respondent trust on the fact that he was a grand son of the founder and a reader of 'Daily thanthi' and as a person having interest in the trust. It has been contended that same reasons have been stated for maintaining earlier application as well as the suit in this proceedings. Could the causes of action based upon the earlier proceedings in A.No.165 of 1981 be the same as made in this proceedings by the second applicant because both A.No.165 of 1981 as well as this application in A.No.1163 of 2011 were filed by him as a grand son of the founder of the trust, as a reader of the said newspaper 'Daily thanthi' and he was much interested in the welfare of the trust. These causes of action are not complete so far as this case is concerned, but there are other causes of action which are subsequent to the said application in A.No.165 of 1981. Whether the said basic causes of action could be said as the same causes of action as mentioned in A.No.165 of 1981 is an important question. No doubt, the basic cause of action is that the second applicant was the grand son of the founder and reader of the 'Daily' thanthi and also interested in the welfare of the public. The bar as contemplated under Order 11 Rule 21 (2) of the Code of Civil Procedure is very clear in its meaning, which runs as follows:-
"Order 11 Rule 21. Non-compliance with order for discovery :-
(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action."
79. According to the said provisions of sub-rule 2, if any suit filed by a person was dismissed under sub-rule 1 of Rule 21, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. Therefore, the provision does not only prevent the cause of action under which the application was dismissed in A.No.165 of 1981, but also a fresh suit including the application for seeking permission to file the suit if the causes of action are same. As per the interpretation given by the Honourable Apex Court in the aforesaid judgment, I could see that the cause of action as contemplated by the second applicant in application in A.No.165 of 1981 as well as in this application are on the same footing. In such circumstances, how the second applicant could be permitted to maintain this application is a question. This could be adjudicated finally after discussing other points.
80. It was argued by the learned senior counsel appearing for the respondents 1 to 3 that the sanction to be granted under Section 92 of the Code of Civil Procedure is a judicial function and it should have been adjudicated judiciously. It has also been contended that the judgments of this court reported in 1996 (2) LW 364 (R.Kannan Adityan and four others ..vs.. B.S.Adityan and six others), which culminated on an earlier dispute in between the same parties, the Honourable Division Bench has come to a conclusion that the sanction to be accorded under Section 92 of the Code of Civil Procedure is administrative in character and not judicial, were not approved in the Civil Appeals in C.A.Nos.12915 to 12920 of 1996 by the Hon'ble Apex Court, but those appeals were dismissed.
81. The judgments of the Honourable Apex Court reported in 2005 (8) SCC 618 (SBP & Co., ..vs.. Patel Engineering Ltd.,) would lay down the principle that the proceedings under Section 92 of the Code of Civil Procedure is a judicial proceedings and the relevant passage would be as follows:-
"8. Normally, any tribunal or authority conferred with a power to act under a statute, has the jurisdiction to satisfy itself that the conditions for the exercise of that power existed and that the case calls for the exercise of that power. Such an adjudication relating to its own jurisdiction which could be called a decision on jurisdictional facts, is not generally final, unless it is made so by the Act constituting the tribunal. Here, sub-Section (7) of Section 11 has given a finality to the decisions taken by the Chief Justice or any person or institution designated by him in respect of matters falling under sub-Sections (4), (5) and (6) of Section 11. Once a statute creates an authority, confers on it power to adjudicate and makes its decision final on matters to be decided by it, normally, that decision cannot be said to be a purely administrative decision. It is really a decision on its own jurisdiction for the exercise of the power conferred by the statute or to perform the duties imposed by the statute. Unless, the authority satisfies itself that the conditions for exercise of its power exist, it could not accede to a request made to it for the exercise of the conferred power. While exercising the power or performing the duty under Section 11(6) of the Act, the Chief Justice has to consider whether the conditions laid down by the section for the exercise of that power or the performance of that duty, exist. Therefore, unaided by authorities and going by general principals, it appears to us that while functioning under Section 11(6) of the Act, a Chief Justice or the person or institution designated by him, is bound to decide whether he has jurisdiction, whether there is an arbitration agreement, whether the applicant before him, is a party, whether the conditions for exercise of the power have been fulfilled and if an arbitrator is to be appointed, who is the fit person, in terms of the provision. Section 11(7) makes his decision on the matters entrusted to him, final."
82. The aforesaid judgment has been dealt with the Arbitration and Conciliation Act, which is akin to the provisions of Section 92 of the Code of Civil Procedure. The Division Bench of this Court had reversed the single Judge's judgment in A.No.3640 of 2006 and A.No.2065 of 2007. In the judgment of the Honourable Division Bench made in OSA.Nos.191, 194, 196 and 197 of 2007 dated 08.01.2010, in which it was held that the proceedings under Section 92 of the Code of Civil Procedure is a judicial proceedings. When the judgment of this Court stated supra is found to have concluded that the proceedings under Section 92 of the Code of Civil Procedure is judicious in nature in support of the judgment of the Honourable Apex Court, I am also concurring with the view taken by the Honourable Division Bench made in OSA.Nos.191, 194, 196 and 197 of 2007.
83. Further, it was brought to the notice of this Court a judgment of the Honourable Apex Court reported in 2011 (2) SCC 258 (Automative Tyre Manufacturers Association ..vs.. Designated Authority and others) for the same position of law. The relevant passage would be as follows:-
"65. More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi-judicial decision. Nevertheless, the aim of both a quasi-judicial function as well as an administrative function is to arrive at a just decision. In A.K. Kraipak & Ors. Vs. Union of India & Ors. (1969) 2 SCC 262, this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to:
(i) the nature of the power conferred;
(ii) the person or persons on whom it is conferred;
(iii) the framework of the law conferring that power;
(iv) the consequences ensuing from the exercise of that power and
(v) the manner in which that power is expected to be exercised."
In the light of the aforesaid guidelines and discussions held, I could see that the proceedings under Section 92 of the Code of Civil Procedure can be adjudicated prior to the filing of the suit in the facts and circumstances of each case.
84. The learned counsel for the respondents 1 to 3 would categorically harp upon the arguments that the proceedings launched by the applicants is nothing but the extension of the earlier proceedings had in between the parties already for 8 (eight) rounds and the present proceedings with complicated averments in the plaint with regard to the defendants 4 to 12 in the cause of action paragraph as well as seeking relief against them would be for the purpose of harassing the respondents 1 to 3 in one way or other by abusing the process of law. The allegations made in respect of cause of action for the applicants to file the suit are one and the same and the misfeasance, malfeasance or nonfeasance of the trust obligations have been originally alleged in the earlier plaints by either these applicants jointly with the other brother or with the third parties for seeking rendition of accounts and for removal of trustees, consequently for framing of scheme. The earlier proceedings based on the similar allegations like misconduct, misappropriation and siphoning of funds, which were rejected by the courts would bar the applicants as res judicata.
85. However, the learned counsel for the applicants would submit in his argument that the proceedings cannot be considered as judicial proceedings and all these averments and defence have to be looked into only after the filing of the suit and the only point to be seen is under Section 92 of the Code of Civil Procedure whether it would a public trust or any breach of trust has been committed and the nature of relief sought for by the plaintiffs. The plea of res judicata or maintainability of the suit need not be gone into at this stage of granting permission or sanction to file the suit under Section 92 of the Code of Civil Procedure.
86. Reliance was placed on various judgments of the Honouorable Apex Court that the allegations made in the written statement should not be considered for rejecting the plaint and the courts have to look into the over all averments on the face of the plaint to consider the maintainability of the plaint under Order 7 Rule 11 CPC. The judgment of the Honourable Apex Court reported in 2003 (1) SCC 557 (Saleem Bhai and others ..vs.. State of Maharashtra and others) was cited for the purpose, which would run as follows:-
"9. A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any state of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order VII C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. ....."
87. Yet another judgment of the Honourable Apex Court reported in 2004 (2) LW 800 (Sopan Sukhdeo Sable and others ..vs.. Assistant Charity Commissioner & others) was also cited in support of his case.
"11. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities."
88. Yet another judgment reported in 2005 (7) SCC 510 (Popat and Kotecha Property ..vs.. State Bank of India Staff Association) has also been relied upon for the same principle.
"25. .... The statement in the plaint without addition or substraction must show that it is barred by any law to attract application of Order 7 Rule 11."
89. Furthermore, a judgment of the Honourable Apex Court reported in AIR 2006 SC 1828 (Mayar (H.K) Ltd., and others ..vs.. Owners & Parties, Vessel M.V. Fortune Express and others) was also relied upon for the said principle, which would run as follows:-
"11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."
90. Relying upon the dicta laid down by the Honourable Apex Court, it was strenuously argued by the learned counsel for the applicants that this Court cannot go into the question of rejecting the plaint on the basis of the allegations made therein at this stage and it may only after the numbering of the suit as well as not on the objections raised by the respondents in their counter affidavits. Therefore, the learned counsel for the applicants would request that the arguments advanced by the learned counsel for the respondents 1 to 3 that the applicants have abused the process of law cannot be decided at this stage.
91. Nextly, it was further argued by the learned counsel for the applicants that the principle of res judicata cannot be applied at this stage, when there was no earlier adjudication regarding the dispute had in between the parties and the mere pendancy of the applications under Section 92 of the Code of Civil Procedure which were adjudicated by the courts would not form res judicata, since there was no final adjudication regarding the rights of parties in those earlier pronouncements. The learned counsel for the applicants had cited a judgment of the Honourable Apex Court reported in 2009 (10) SCC 273 (Ramachandra Dagdu Sonavane (dead) by LRs. And others ..vs.. Vithu Hira Mahar (dead) by LRs. And others), which would run as follows:-
"43. The Principle of res- judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res- judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided."
92. Yet another judgment of the Honourable Apex Court reported in 2010 (10) SCC 141 (Alka Gupta ..vs.. Narender Kumar Gupta) was also relied upon for the same point. The relevant passage would run as follows:-
"34. The High Court recorded factual findings on inferences from the plaintiff's (appellant) conduct and branded her as an unscrupulous person who abuses the process of court and as a person who utters falsehoods and manipulates documents without there being a trial and without there being an opportunity to the plaintiff to explain her conduct. To say the least, such a procedure is opposed to all principles of natural justice embodied in the Code of Civil Procedure. At all events, the alleged weakness of the case of the plaintiff or unscrupulousness of plaintiff are not grounds for dismissal without trial."
93. Quoting the aforesaid judgments, the learned counsel for the applicants would submit that the doctrine of res judicata can be applied only upon the plea raised in the written statement as well as based upon the evidence and it cannot be decided at this stage without applying the evidence, which is much required for identifying the similarly of the findings already reached in the earlier proceedings. Considering the submissions made by the learned counsel for the applicants and the respondents 1 to 3, I could see that the applicants who are basing their claim on some other pleas are always entitled to bring a suit for certain reliefs as stated in the plaint. Whether it is brought for the second time when the issues are to be decided are one and same could be found only at the time of adducing evidence.
94. However, the judgments of the Honourable Apex Court reported in 1999 (5) SCC 590 (Hope Plantations Ltd., ..vs.. Taluk Land Board, Peermade and another) and 2005 (1) SCC 787 (Bhanu Kumar Jain ..vs.. Archana Kumar and another) would lay a dictum that when no resjudicata is applicable prior to the trial of any suit if it has been already decided in between the same parties regarding the grant of permission of filing suit under Section 92 CPC, there would an issue estoppel or cause of action estoppel.
95. The principle laid down in the judgment of the Hon'ble Apex Court reported in 1999 (5) SCC 590 (Hope Plantations Ltd., ..vs.. Taluk Land Board, Peermade and another) would be as follows:-
"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
96. It has been reiterated in yet another judgment of the Hon'ble Apex Court reported in 2005 (1) SCC 787 (Bhanu Kumar Jain ..vs.. Archana Kumar and another) which are as follows:-
"29. There is a distinction between "issue estoppel" and res judicata". (See Thoday v. Thoday)
30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz., estoppel by accord.
31. In a case of this nature, however, the doctrine of "issue estoppel" as also "cause of action estoppel" may arise. In Thoday, Lord Diplock held : (All ER p.352 B-D) " .... 'cause of action estoppel', is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If cause of action was determined to exist i.e., judgment was given on it, it is said to be merged in the judgment .... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam"
32. The said dicta was followed in Barber v. Staffordshire County Council. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. (See C.(A Minor) v. Hackney London Borough Council)."
97. On a careful understanding of the dictum laid down by the Hon'ble Apex Court, I could see that there is no second thought that the res judicata would be attracted only if the lis has attained finality in between the parties on the same issue, but the cause of action estoppel will arise where in two different proceedings identical issues are raised in which event the later proceedings between the same parties shall be dealt with similarly as done in the previous proceedings.
98. It has been discussed and found earlier that the second applicant was barred under Order 11 Rule 21(2) of the Code of Civil Procedure for bringing a fresh suit on the same cause of action. No doubt, the causes of action are bundle of facts, which could consist more than the earlier causes of action for the reliefs sought for in the present plaint. When the second applicant was already barred under Order 11 Rule 21 (2) of the Code of Civil Procedure from bringing any further action on the same cause of action and the said decision reached against the said applicant would certainly act as an issue estoppel also in this case.
99. As regards the objections raised by the respondents 7 to 12, it has been objected that the very averment of the suit filed under Section 92 of the Code of Civil Procedure was misconceived and the suit cannot be maintained under Section 92 of the Code of Civil Procedure since no relief can be asked for against the respondents 7 to 12, who are third parties. The respondents 7 to 12 are the companies incorporated under the Companies Act and they are strangers to the third defendant trust and therefore, it is claimed that they cannot be arrayed as parties in the suit in a suit filed under Section 92 of the Code of Civil Procedure seeking certain reliefs in relation to third defendant trust.
100. The third contention was that there was no material available on record to establish even a prima facie case in the suit in respect of the moneys of third defendant were utilised for purchasing the estates by the respondents 7 to 12. However the learned counsel for the applicants was replying that the respondents 7 to 12 would not be considered as strangers because they would be the recipients of the funds of the trust or the tracing the funds of the trust would reach the respondents 7 to 12 by some other means and therefore, those persons even though strangers would be considered as constructive trustees and therefore, the respondents 7 to 12 may not be considered as strangers to the suit. The learned counsel for the applicants had cited a judgment of the Calcutta High Court reported in AIR 1935 Calcutta 805 (Abdul Majid and others ..vs.. Akhtar Nabi and another) for the said principle. The relevant passage would run as follows:-
"14. The learned author cites cases in support of this proposition. Therefore looking to the averment of the appellants in the pleadings defendant 2 is a constructive trustee of the wakf property. The suit cannot be said on the allegations made in the plaint not to be one falling within the provisions of Section 92, Civil P.C. The suit is maintainable without payment of ad valorem Court-fee for the declaration. In these circumstances the proper order to make is to set aside the orders of the District Judge dated 21st March 1932, as well as 21st April 1932, which last order is really the final order and to direct that the case be sent to the District Judge in order that he may try the suit in accordance with law. We do not and indeed we cannot express any opinion as to truth or otherwise of the allegations made in the plaint on which it is claimed that defendant 2 is a constructive trustee. That is a matter of evidence. All that we can say, is that the allegations if proved are quite sufficient in law to bring the suit under the provisions of Section 92, Civil P.C."
101. The principle of constructive trusteeship were sought to be explained with the help of the Supreme Court of Judicature of Royal Courts on Justice, London in (2000) EWCA Civ 502 WC2 (1. Bank of Credit and Commerce International (Overseas) Ltd., 2. International Credit and Investment Company (Overseas) Ltd., ..vs. Chief Labode Onadimaki Akindele) and (1990) EWCA Civ 2 Royal Courts of Justice (Agip (Africa) Ltd., ..vs.. Barry Kingsley Jackson Edward Norman Bowers (both practising as Jackson & Co., a firm) Ian Duncan Griffin). Yet another judgment of the House of Lords reported in 2000 (3) All England Reporter 97 (Foskett ..vs.. McKeown) for explaining the knowledge as well as the tracing of funds passed towards constructive trustees. Relying upon the aforesaid principles, it was strenuously argued that the respondents 7 to 12 should not be deemed as third parties.
102. It was further argued by the learned counsel for the applicants that all these points cannot be gone into in Section 92 of the Code of Civil Procedure proceedings seeking for sanction and the allegations made in the transfer of funds have to be decided only in a trial.
103. However, it was seriously disputed by the learned senior Counsel Mr.R.Thiyagarajan by quoting a judgment of the Full Bench of this Court reported in AIR 1917 Madras 112 (Kalyana Venkataramana Aiyangar and another ..vs.. Kasturi Ranga Aiyangar) for the principle that the alienees from the trustee or the trespassers of the trust properties could not be included in a suit under Section 92 of the Code of Civil Procedure and sought for relief against them. The relevant portion would be as follows:-
"6. It has been ruled in a long series of decisions by all the Courts that neither the old Section 539 nor the new Section 92 includes within its purview suits in which relief is sought against persons other than trustees, whether they are alienees from the trustees or trespassers. This special provision of the Code does not apply to suits the object of which is to establish that the property in the hands of strangers belongs to the trust and to recover the same. Its scope is confined to cases in which a proper administration of the trust is sought to be secured. ......
With that exception the consensus of opinion in all the High Courts has hitherto been that suits in which relief is asked for against strangers to the trust whether they are alienees from the trustees or trespassers are outside the purview of Section 539 of the Code of Civil Procedure and I am not prepared to hold that this view is not warranted by the language of the statute. ......."
104. A judgment of the Privy Council reported in AIR 1928 Privy Council 16 (Abdur Rahim and others ..vs.. Syed Abu Mahomed Barkat Ali Shah and others) was also cited for the same principle of law. The relevant passage would be as follows:-
"21. ........ The resulting uncertainty could only be removed by legislative enactment, and Sub-section (2) of Section 92 was enacted to put an end to this difference of opinion. It accepted and enacted the view which had been taken by the Bombay High Court, as opposed to the view taken by the other High Courts generally, viz., that a suit which prayed for any of the relief mentioned in Section 92 could only be instituted in accordance with the provisions of that section. The words used in Sub-section (2) are appropriate and sufficient if that was the purpose, but they are insufficient and inadequate if it was intended to make a complete change such as is suggested on behalf of the respondents.
22. Their Lordships see no reason to consider that Section 92 was intended to enlarge the scope of Section 539 by the addition of any relief or remedy against third parties, i. e., strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539, but the general current of decisions was to the effect that even if such third parties could properly be made parties under Section 539, no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the Legislature intended to include relief against third parties in Clause (h) under the general words "further or other relief."
105. In support of his argument, another Full Bench Judgment of this Court reported in AIR 1935 Madras 825 (Janaki Bai Ammal ..vs.. Sri Tiruchitrambala Vinayakar of Melmandai) has been cited, in which the following principles have been laid down:-
"8. And their Lordships laid it down that the effect of the amendment introduced into the section by Sub-section (2) was that a suit, founded upon a breach of such public trust, which prayed for any of the reliefs mentioned in Sub-section (1) could only be instituted in conformity with its provisions.
9. The question, therefore, whether a suit falls within Section 92, depends, not upon the character in which the plaintiff sues,, but upon the nature of the reliefs sought. This view is supported by the opinion of Sundaram Chetty, J., in Krishna Aiyangar v. Ahvarappa Aiyangar (1932) 63 M.L.J. 703 (4)."
106. The judgment of Rangoon High Court reported in AIR 1932 Rangoon 132 (Johnson D.Po Min and another ..vs.. U Ogh and others) was also cited for the same principle and the relevant passage would run as follows:-
" In my opinion, however, the plaintiffs in a suit framed under Section 92 are not entitled to claim against strangers to the trust either a declaration of title or possession or any other relief; and a suit under Section 92 in which a claim for relief against strangers to the trust is added to a claim for relief which the court is competent to decree in such a suit entails a clear misjoinder both of parties and causes of action and unless the plaint is amended the suit cannot be sustained. As I apprehend the scope and effect of Section 92 it was enacted to provide means for obtaining the directions of the court in connexion with matters relating to the administration of the trust and for exposing the malpractices of defaulting of fraudulent trustees and issues relating to the rights of third parties are outside the scope of a suit brought under this Section of the Code. ......
I go further and hold, not only that no relief can be granted against strangers to the trust in a suit under Section 92, but also that such persons are not necessary or proper parties to a suit framed under that Section. ....."
107. Similar view has been laid down by the Nagpur High Court reported in AIR (34) 1947 Nagpur 233 (Kisan Bhagwan Marathe and others ..vs.. Shree Maroti Saunsthan, Mohori and others), which has clearly laid down the following principle:-
"4. As regards S.92 Civil Procedure Code that section is limited to suits which claim one or other of the reliefs set out in the section. It does not apply to suits against third parties and strangers and certainly not to a suit in which an idol sues for possession of its property or property which claims. ..."
108. A judgment of Bombay High Court reported in AIR 1953 Bombay 153 (Ranchhoddas Kalidas and others ..vs.. Goswami Shree Mahalaxmi Vahuji and others) was also relied upon by the respondents 7 to 12 for the principle that no reliefs can be claimed against the strangers in a suit under Section 92 CPC. The relevant passage would run as follows:-
"8. ...... There can be no doubt that, in substance, this is a suit for possession of the trust properties and the claim for possession is made against the alienees. Such a suit is obviously outside the purview of Section 92. However, Mr. Purshottam is right when he contends that the bar created by Section 92 would apply to a suit if some of the reliefs claimed in the suit attract the provisions of Section 92 even though the other reliefs claimed in the suit may be wholly outside Section 92. It is, therefore, necessary to consider whether the claim for possession made by the plaintiffs falls within Section 92(1)(c)."
109. Furthermore, a judgment of Calcutta High Court reported in AIR (31) 1944 Calcutta 163 (Gobinda Chandra Ghosh alias G.Ghosh and another ..vs.. Abdul Majid Ostagar and others) was also relied upon for the same principle. A judgment of the Honourable Apex Court reported in AIR 1952 SC 143 (Pragdasji Guru Bagwandasji ..vs.. Ishwarlalbhai Narsibhai and others) was quoted for the same principle, which would run as follows:-
"10. A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of section 92, Civil Procedure Code. As was observed by the Privy Council in Abdur Rahim v. Barkat Ali, a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of section 92, Civil Procedure Code. ......"
110. Yet another judgment of the Honourable Apex Court reported in AIR 1967 SC 1044 (Bishwanath and another ..vs.. Sri Thakur Radha Ballabhji and others) was also brought to the notice of this Court, which would run as follows:-
"7. It is settled law that to invoke s. 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature;, (ii) there was a breach of trust or a direction of court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in s. 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of s. 92 of the Code of Civil Procedure by the Privy Council in Abdul Rahim v. Barkat Ali(1) and by this Court in Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai(2) on the ground that a relief for declaration is not one of the reliefs enumerated in s. 92 of the Code of Civil Procedure. So too, for, the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of s. 92 of the Code of Civil Procedure. ......."
111. The Full Bench of Allahabad High Court in its judgment reported in AIR 1975 Allahabad 36 (Uma Shanker and others ..vs.. Salig Ram and others) has also followed the said principle cited in the aforesaid judgment . The relevant passage would be as follows:-
"3A. The second aspect of the first question is also covered by high authority. We have already extracted the relevant portion from the judgment of the privy Council in AIR 1928 PC 16 (supra) wherein it has been held that relief against strangers i.e. persons who are not trustees cannot be granted in a suit under Section 92. In AIR 1967 SC 1044 (supra). it has been held that a suit for a declaration that certain property belongs to a trust and for possession thereof from the alienees does not fall under Section 92. C. P, C., as such suits are really suits to enforce a private right and not a representative suit of the type contemplated by Section 92, C. P. C. It is nacessary to extract the relevant portion of the judgment of the Supreme Court on this aspect on page 1046 of the report:--
"It is settled law that to invoke Section 92 of the Code of Civil Procedure, three conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of three conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure. ........"
[Emphasis supplied]
112. When we consider the suit filed against the respondents 7 to 12 we have to go through the reliefs in the proposed plaint as against the proposed defendants in the said suit. Accordingly, the reliefs sought for in the plaint are as follows:-
"a. For framing a scheme for the administration of the third defendant Trust making provision for the number of trustees, the method of accounting, action to be taken for misconduct of trustees and such other matters as may be necessary for the proper administration of the trust, and doing so to consider whether or not the first defendant should continue as trustee of the third defendant trust or not.
b. Call upon the first defendant to render true and proper account of his administration of the trust from the date of his assumption of charge as trustee and direct him to make good such amounts as may be found unauthorisedly spent or taken away by him and make good the trust the loss occasioned by the first defendant or any other defendant.
c. direct a thorough investigation into the affairs of the third defendant trust and to trace the funds siphoned off from the third defendant trust into the hands of any third party including without limitation the defendant Nos.4 to 12 and to take necessary steps to recovery them from them;
d. directing such further or other enquiries as may be necessary to render justice into the conduct of the first and second defendants as trustees of the third defendant;
e. the plaintiffs are entitled to a declaration that the first to third defendants have no right whatsoever to appoint any additional trustees and a consequent permanent injunction restraining any person claiming to have been appointed by the first to third defendants as an additional trustee from claiming or acting as such in any manner as trustees of the third defendant trust;
f. directing the defendants to pay the costs of the suit."
113. In the said reliefs, in relief 'c' there was a requisition for directing a thorough investigation into the affairs of the third defendant trust to trace siphoning off funds from the third defendant trust in the hands of any third party including without limitation, the defendants 4 to 12 and to take necessary steps to recover them from them. The said relief is certainly sought against the defendants 7 to 12 along with the defendants 4 to 6. According to the plaint allegations, the defendants 4 to 6 are stated to be new trustees of the trust. The allegations and other causes of action alleged in the proposed plaint would disclose that the funds of the third defendant trust has been siphoned off not only to the proposed defendants 7 to 12, but also to the defendants 4 to 6.
114. According to the submission of the learned senior counsel appearing for the respondents 7 to 12, the respondents 7 to 12 are all corporate bodies and they are governed by Company Law and the presence of the defendants 1 and 6 as shareholders and in turn the directors of those companies would not make those corporate bodies to be part and parcel of the trust. The learned counsel for the applicants did not deny the fact that they are corporate bodies, but it was alleged that they were actively colluding with the defendants 1 and 6. It is a settled law that the corporate bodies would be a distinct legal entities. Admittedly, the third defendant trust is an independent one and the respondents 7 to 12 are the corporate bodies which are deemed to be independent as per law. According to the submission of the learned senior counsel appearing for the respondents 7 to 12 every purchase of property by the respondents 7 to 12 were done by issuing pay orders or drafts from the company account and no consideration was passed from the third defendant trust. The tenor of the judgments commencing from 1929 Privy Council to the latest judgments of the Honourable Supreme Court for a suit to be filed against the third parties either for declaration or for possession in respect of properties or any relief against strangers, a general suit could be filed and there cannot be any suit filed under Section 92 of the Code of Civil Procedure clubbing with the reliefs given under Section 92 of the Code of Civil Procedure.
115. The argument advanced by the learned counsel for the applicants that the alienee or any person receiving the funds of the trust should have been considered as constructive trustee as per the judgment of the Calcutta High Court reported in AIR 1935 Calcutta 805 (Abdul Majid and others ..vs.. Akhtar Nabi and another) has been watered down even by a judgment of the Calcutta High Court reported in AIR (31) 1944 Calcutta 163 (Gobinda Chandra Ghosh alias G.Ghosh and another ..vs.. Abdul Majid Ostagar and others) and various judgments of other High Courts as well as Full Bench of this Court and Honourable Supreme Court that a stranger cannot be proceeded under Section 92 of the Code of Civil Procedure. The alleged constructive trusteeship cannot be established by mere allegations made in the plaint. Therefore, the respondents 7 to 12 are out and out strangers and the proposed plaint filed against them even though with the causes of action woven with the third respondent trust and other respondents cannot be sustained under Section 92 CPC, in view of the dictum laid down in the judgment of the Hon'ble Apex Court reported in AIR 1967 SC 1044 as followed in AIR 1975 All 36 referred above.
116. The reliefs which could be sought under Section 92 of the Code of Civil Procedure have been enumerated as follows:-
" 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 Aectee,-
(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 inquires;
(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 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 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 cypres in one or more 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;
(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
(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."
117. Even as per the judgment of the Privy Council reported in AIR 1928 Privy Council 16 (Abdur Rahim and others ..vs.. Syed Abu Mahomed Barkat Ali Shah and others) sub-section 'h' of Section 92 of the Code of Civil Procedure cannot be included in other reliefs, but it could be a relief ancillary to the reliefs already enumerated from 'a' to 'g'. Therefore, it cannot be said that the relief against strangers would be ancillary to either the framing of scheme or for rendition of accounts. In these circumstances, the proposed plaint against respondents 7 to 12 cannot be maintained. Consequently, the applications filed by the respondents 7 to 12 for deletion of their name can be ordered.
118. However, when we go through the plaint and the causes of action, the alleged breach of trust said to have been committed by the defendants 1 to 3 was siphoning of the funds of the trust transferring into the account of the respondents 7 to 12 and after obtaining the properties in the name of the respondents 7 to 12, those properties will be transferred in the name of the defendants 1 to 6. When the causes of action as contemplated in the proposed plaint have also connected the respondents 7 to 12 with the respondents 1 to 3 and 6 / defendants 1 to 3 and 6, naturally the deletion of the respondents 7 to 12 would not leave the other reliefs claimed against other defendants sustainable. In case of deletion of the respondents 7 to 12 in the plaint, naturally, the claim against the defendants 1 to 3 would also fail. The other causes of action regarding the appointment of new trustees contrary to the trust obligations in respect of the respondents 4 to 6, the proposed plaint cannot be isolated and be ordered to go with the framing of scheme, rendition of accounts as permissible under Section 92 of the Code of Civil Procedure. It is also not permissible as per the dictum of the Hon'ble Apex Court laid down in AIR 1967 SC 1044 as discussed supra. The complications made in the proposed plaint mixing all the causes of action for stating breach of trust on the part of the defendants 1 to 3 would itself make the plaint inseparable against the defendants 1 to 6 and such misuse of causes of action would deny the sanction for the entire plaint. Therefore, the leave for the proposed plaint as stated with the causes of action and the reliefs stated therein cannot be granted under Section 92 of the Code of Civil Procedure.
119. In the earlier disuccsions, I find that the respondents 7 to 12 are third parties and the relief sought against them in relief 'c' is outside the scope of Section 92 of the Code of Civil Procedure as envisaged therein. It cannot be even considered as an ancillary relief to the main reliefs. It is quiet sure, as per the dictum laid down by the Hon'ble Apex Court reported in AIR 1967 SC 1044 (Bishwanath and another ..vs.. Sri Thakur Radha Ballabhji and others), that when the relief claimed in one or other of the reliefs enumerated therein, would not be in accordance with Section 92 of the Code of Civil Procedure and if the said condition was not satisfied, the suit falls outside the scope of Section 92 of the Code of Civil Procedure. Since the claim against the respondents 7 to 12 and the causes of action referred against them are interwoven with the other defendants and they are not separable, the proposed plaint clubbing the respondents 7 to 12 as defendants 7 to 12 in the plaint is clearly outside the scope of Section 92 of the Code of Civil Procedure.
120. Furthermore, the second applicant was found barred already in the earlier proceedings in A.No.165 of 1981 under Order 11 Rule 21(2) of the Code of Civil Procedure from bringing any fresh suit against the trust on the same causes of action. As rightly pointed out by the learned senior counsel appearing for the respondents 1 to 3 that the causes of action alleged in the proposed plaint contains bundle of facts and mixed with other facts, the causes of action relevant to second applicant was static i.e., he was the grand son of the founder of the trust and was a regular reader of daily thanthi and was interested in public. In the said circumstances, the second applicant is barred to bring a fresh suit on the same causes of action accrued for him against the third defendant trust. When the said bar has been approved by the Honourable Apex Court, the second applicant cannot launch the proceedings under Section 92 of the Code of Civil Procedure against the third defendant trust as an interested person on the basis of the said same cause of action. In such circumstances, even otherwise, the permission for proposed plaint is grantable on the basis of the averments made in the plaint, the second applicant cannot pursue the said application, since he was barred under Order 11 Rule 21 (2) of the Code of Civil Procedure. When the second applicant is barred, the first applicant as a sole applicant cannot maintain the application seeking permission under Section 92 of the Code of Civil Procedure to file a suit as found in the proposed plaint. When there are no two interested persons available to maintain the said application for seeking permission under Section 92 of the Code of Civil Procedure, the application filed by the applicants in A.No.1163 of 2011 is not sustainable in law and is liable to be dismissed and accordingly, dismissed. Consequently, the plaint is rejected.
121. For the foregoing discussions held above, the application in A.No.1163 of 2011 is dismissed and the proposed plaint is, therefore, rejected. In view of the order of dismissal of A.No.1163 of 2011, the applications in A.Nos.2032, 2038 to 2040 of 2011 filed by the respondents 1 to 3, 4, 6 and 5 to reject the plaint is ordered as prayed for. The applications in A.Nos.2188 to 2193 of 2011 to strike the names of the respondents 7 to 12 in Application No.1163 of 2011 and from the proposed plaint are also ordered. No costs.
Mra 27.08.2012 Index : yes / no Internet : yes / no Note : Issue order copy on 04.09.2012 V.PERIYA KARUPPIAH, J. Mra Pre-delivery Common Order in Applications No. 1163, 2032, 2038 to 2040 and 2188 to 2193 of 2011 in C.S.No. ..... of 2011 27.08.2012