Karnataka High Court
Shri Achyuta Ashram R/B Its General ... vs K Ramakrishna S/O Bhaskar Roa on 23 July, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23RD DAY OF JULY, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
RFA NO.3017/2009(MV)
BETWEEN
1. "SHRI ACHYUTA ASHRAM"
A SOCIETY REGISTERED UNDER THE
KARNATAKA SOCIETIES REGISTRATION ACT,
1960 HAVING ITS ASHRAM AND OFFICE AT
VIRUPAPURA GADDI, POST SANAPUR, NEAR
ANEGUNDI, TALUK : GANGAVATHI, DIST :
KOPPAL - 583 231.
REPRESENTED BY ITS GENERAL SECRETARY
SRI B.H.NADAGOUDA THORUGH GPA HOLDER
SRI K PRABHAKAR RAO,
AGE : 50 YEARS, OCC : NIL,
R/O.H.NO.5-6-77 SHETTY BOWDI CHOWK,
SOMWARPET, RAICHUR - 584 101.
2. SWAMY SETHARAM PARDHANGURU,
SHREE ACHYUTA ASHRAMA, AGE : 52 YEARS,
OCC : PRIEST, R/O.H.NO.9-3-28,
NEAR SAIBABA TEMPLE,
POST : URAVAKONDA, DIST : ANANTPUR,
(ANDHRA PRADESH) - 515 001.
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3. NARAYANASWAMY S/O VENKATESHWARALU
PRESIDENT SHREE ACHYUTASHRAMA
AGE : 62 YEARS, OCC : NIL,
R/O.PLOT NO.102, PURNIMA RESIDENCY,
7TH LANE, BHARATH PETH,
ANARAVATI ROAD, GUNTUR
(ANDHRA PRADESH) - 522 001.
4. B.B.TIRUKA REDDY REPLACED BY
C RAGHAVACHAR APPOINTED AS
VICE PRESIDNET, SHREE ACHYUTASHRAMA,
AGE : 59 YEARS, OCC : NIL,
R/O.H.NO.3-1-86/3,
DHANAPOOR NAVODYA COLONY,
ROAD NO.4, L.B.NAGAR, HYDERABAD,
(ANDHRA PRADESH) - 500 768.
5. B.H.NADAGOUDA REPLACED BY
P LAXMINARAYANRAO APPOINTED AS
GENERAL SECRETARY, SHREE
ACHYUTASHRAMA, OCC : 58 YEARS,
OCC : SERVICE, R/O.QTRS.NO.5,
MARUTINAGAR, T.B.DAM, HOSPET - 583 101.
6. C KRISHNAJI RAO REPLACED BY
K NAGENDRAPRASAD APPOINTED AS
JOINT SECRETARY, SHREE ACHYUTASHRAMA
AGE : 62 YEARS, OCC : SERVICE,
R/O.H.NO.22/224, KURUBA STREET,
OLD OWN, ANANTAPUR, A.P - 515 001.
7. C.DHARMOJI RAO REPLACED BY
K.TIMMAPPA APPOINTED AS A TREASURER
SHREE ACHYUTASHRAMA, AGE : 65 YEARS,
OCC : AGRI., LAND LORD, R/O.KUMBAR VEDHI,
AT : KUDITHINI, TQ & DIST : BELLARY - 583 101.
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8. U.ANJANEYALU REPLACED BY
R B SATYANARAYAN APPOINTED AS A
MEMBER OF SHREE ACHYUTASHRAMA,
AGE : 54 YEARS, OCC : NIL,
R/O.H.NO.6-8-279, RAVINDRANAGAR COLONY,
NALGONDA, A.P - 508 001
(NOTE : THE NAMES SHOWN AS APPELLANTS
ARE THE NEWALY ELECTED MEMBERS OF
ASHRAM, HENCE THERE NAMES ARE SHOWN AS
THE APPELLANTS)
...APPELLANTS
(By Sri.SHRIKANT.T.PATIL, ADV.)
AND
1. K.RAMAKRISHNA S/O BHASKAR ROA
AGE : 48 YEARS, OCC : AGRICULTURE,
2. K.BHASKAR RAO S/O KRISHTAYYA,
AGE : 52 YEARS, OCC : AGRICULTURE,
3. NARALA CHANNAREDDY
S/O PICHI RANGAREDDY,
AGE : 45 YEARS, OCC : AGRICULTURE,
4. SURA SHANKAREDDY S/O RAMA REDDY
AGE : 39 YEARS, OCC : AGRICULTURE,
5. KAWAL RAM RAO S/O VENKATA RAMUDU,
AGE : 36 YEARS, OCC : AGRICULTURE,
6. SATYAM SETTY VENKATANARASAMMA
W/O AMMI RAJU,
AGE : 42 YEARS, OCC : AGRICULTURE,
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7. KARI RAMAKOTAYYA S/O K.VISHWANATHAM,
AGE : 46 YEARS, OCC : AGRICULTURE,
8. CHIRAMJEEVI S/O RAMKOTAYYA
AGE : 32 YEARS, OCC : AGRICULTURE,
9. K.P.S.NAGESHWARA RAO (BHIMADU)
S/O RAMAKOTAYYA,
AGE : 39 YEARS, OCC : AGRICULTURE,
10. D.SHANKAR RAO S/O VEERAIAH,
AGE : 51 YEARS, OCC : AGRICULTURE,
11. K.RAMADEV W/O K RAMKOTAIAH
AGE : 60 YEARS, OCC : AGRICULTURE,
12. D PRASAD RAO S/O SHANKAR RAO,
AGE : 42 YEARS, OCC : AGRICULTURE,
13. NIRMALA SESHAWATARAM W/O SUBBA RAO
AGE : 36 YEARS, OCC : HOUSEHOLD,
14. KURSA VENKAT SUBBA RAO
S/O VENKATA RAM RAO
AGE : 56 YEARS, OCC : HOUSEHOLD,
15. K.SUBHASHSHCHANDRA BOSE
S/O RAMA RAO, AGE : 48 YEARS,
OCC : AGRICULTURE,
16. K VENKAT SUDHAKAR S/O RAMA RAO
AGE : 45 YEARS, OCC : AGRICULTURE,
17. KURSA NAGALAXMI W/O KURSA
VENKATRAMRAO,
AGE : 39 YEARS, OCC : HOUSEHOLD,
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18. NIRMALA NAGVENI W/O N SESHAVATARAM
AGE : 40 YEARS, OCC : HOUSEHOLD,
19. K M KARAMCHAND GANDHI S/O RAMA RAO
AGE : 54 YEARS, OCC : AGRICULTURE,
20. NIRMALA LALITHAMBA W/O SUBBA ROA
AGE : 38 YEARS, OCC : HOUSEHOLD,
21. NIRMALA VENKATAVATARAM D/O SUBBA RAO
AGE : 37 YEARS, OCC : HOUSEHOLD,
22. KURSA VENKAT RAM RAO S/O NOT KNOWN,
AGE : 51 YEARS, OCC : AGRICULTURE,
23. SARASWAMI W/O M.S.S.SHARAMA
AGE : 42 YEARS, OCC : AGRICULTURE,
24. S.GOVINDA S/O T TIMMAPPA,
AGE : 51 YEARS, OCC : AGRICULTURE,
25. R.V.PADMAVATHI W/O R.V.SHANKAR RAJ,
AGE : 38 YEARS, OCC : HOUSEHOLD,
26. KUMARI B.N.HEMAMALINI D/O NEGESHAM,
AGE : 27 YEARS, OCC : HOUSEHOLD,
27. N VENKATARAMANA S/O SUBBA RAO,
AGE : 40 YEARS, OCC : AGRICULTURE,
28. N.RAJGOPAL NAIDU S/O SUBBA RAO,
AGE : 40 YEARS, OCC : AGRICULTURE,
29. SHARMILA UPAJINIYA PARWATANU RANASA
D/O NARWAN NARANA,
AGE : 40 YEARS, OCC : HOUSEHOLD,
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30. BALADEVRAJ RKHUR S/O KALIRAM RHAKUR
AGE : 46 YEARS, OCC : AGRICULTURE,
(THE RESPONDENTS NO.1 TO 30 ARE R/A
VRUPAPURA GADDI, PO : SANAPUR,
TQ : GANGAVATHI, DIST : KOPPAL - 583 231)
... RESPONDENTS
(By Sri./Smt : S A H RAZVI & A B PATIL, ADVS FOR R4,
R5, R8, R13 TO R19, R23, R25 TO R27 :
Sri.SHARANABASAVA, ADV. FOR R12:
R9, R21, R24, R29, R30 - ARE SERVED :
R1, R2 R3, R6, R7, R11, R17, R20 & R22 - SERVICE
HELD SUFFICIENT :
R10 & R28 - NOTICE DISPENSED WITH)
****
THIS REGULAR FIRST APPEAL FILED U/S 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
: 25.09.2008 PASSED IN O.S.No.1/2003 ON THE FILE
OF THE DIST.JUDGE, KOPPAL.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Though this matter is listed for admission, I have heard the learned counsel on both the sides and having regard to the nature of the controversy involved in this appeal, it is heard and disposed of by this judgment. -7-
2. This appeal is preferred by a registered Society called "Sri. Achyuta Ashram" registered under the Karnataka Societies Registration Act, 1960 and certain other persons who claim to be the members of the registered society who have assailed the order dated 25/9/2008, passed in O.S.No.1/2003, by the District Judge at Koppal, by which the earlier order granting leave under Section 92 of Code of Civil Procedure (CPC) on 15/3/2003 has been revoked and the plaint has been rejected.
3. The relevant facts of the case are that the first plaintiff society has filed the suit in OS No.1/2003 seeking the relief of declaration of the title and recovery of possession of the suit schedule property. The registered society however filed an application under Section 92 of the CPC, seeking permission to prosecute the suit as a trust. The said permission was granted by the order dated 15/3/2003, which is an ex-parte order. -8- Thereafter, the defendants in the suit appeared and filed an application IA No.IV, seeking vacation of the order dated 15/3/2003. The trial court heard IA No.I as well as IA No.IV and rejected IA No.I and allowed IA No.IV. Therefore, the order granting the leave under section 92 of the CPC on 15/3/2003 was revoked and the plaint has been rejected. It is against the said order the appeal has been filed.
4. I have heard the learned counsel for the appellants and the learned counsel for the respondents 4,5,8,12,13 to 19, 25 to 27. The other respondents were served through paper publication and service has been held sufficient. With regard to R10 and R28, notice has been dispensed with.
5. It is contended on behalf of the appellants that the suit has been filed on behalf of the registered society and its members. However, in the plaint it was stated that the society is functioning as a public trust -9- and it is in that view of the matter, that an application was filed under Section 92 of the CPC. The said application was also filed having regard to the observations made by this Court in RFA No.536/1998 dated 7/12/2000 which order has been affirmed by the Supreme Court. It is under those circumstances, that an application under Section 92 of CPC was filed and the trial court had initially allowed the said application, but, subsequently on the appearance of the defendants, the leave granted under Section 92 of CPC has been revoked and the plaint has been rejected as well.
6. Being aggrieved by the rejection of the plaint this appeal has been preferred. During the course of the arguments, the learned counsel for the appellants has filed a memo enclosing a copy of the certificate of registration of the first appellant as a registered society. He therefore, contended that the Society, which is registered, as a charitable society is entitled to
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prosecute the suit and therefore, the trial court was not right in rejecting the plaint, even if the order dated 15/3/2003 passed on IA No.I, filed under Section 92 of CPC was revoked. He therefore, submitted that the impugned order be modified and the appellants be permitted to prosecute the suit.
7. Per contra, learned counsel for the respondents has supported the order of the trial court and further contended that these very appellants on an earlier occasion had filed O.S. No.101/1995, on the file of the Civil Judge (Sr.Dn), Koppal. The plaint filed in the said suit also came to be rejected against which the appellants herein have filed RFA 536/1998. This court affirmed the order passed in OS No.101/1995 dated 18/7/1998, in RFA 536/1998 which order has also attained finality as the SLP filed by the said appellants was dismissed on 7/12/2000. Thereafter, the appellants herein have once again filed the present suit
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OS No.1/2003, seeking the very same reliefs and the trial court was justified in revoking the grant of leave under Section 92 of the CPC and rejecting the plaint, which order would not call for interference in this appeal.
8. Having heard the learned counsel on both the sides and on perusal of the material on record as also the copy of the certificate of registration dated 13/10/1982 produced by the learned counsel for the appellants, the only point that arises for my consideration is as to whether the trial court was right in rejecting the plaint.
9. From the material on record, it is noted that the suit is filed by "Shree Achyut Aashrama" which is a Society registered under the Karnataka Societies Registration Act, 1960 and by other members of the society. Therefore, the suit is not filed by the members
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of a trust, either public or private. The juristic entity of plaintiff No.1 is a Society registered for charitable purpose. Infact even in the earlier suit, it was the very same Society, which had filed a suit seeking the very same reliefs. However, in both the earlier suit as well as in the present suit, on the basis of the pleading that the Society is functioning as a public trust, an application under Section 92 of the CPC was filed. On the earlier occasion, as well as in the present suit the said application has been rejected. Pursuant to the rejection of the plaint in the earlier OS No.101/1995, when the matter was carried in appeal to this Court, in RFA No.536/1998, this Court while affirming the rejection of the plaint opined as follows:-
5. In this case, there is no dispute that, the properties originally belonged to the Yogi, who was the founder of the 'Ashram'. The plaintiffs are not claiming title to the properties by way of inheritance or as appointed successors to Yogi. They their title only as 'devotees of the Yogi'. Such a claim is not recognised in law. We, therefore, do not find any
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error in the order of the trial Court, rejecting the plaint, calling for interference; However, we observe that if the properties in question really belonged to the Trust, as claimed, the plaintiffs, and the other devotees, can approach the jurisdictional district court under Section 92 of C.P.C for appropriate relief, if they are so advised.
6. With the aforesaid observations, we dismiss the appeal.
Predicating itself on the said observation, the first plaintiff has once again sought leave under Section 92 of the CPC, by over looking the fact that the first plaintiff is a registered Society under the provisions of the Karnataka Societies Registration Act, 1960, and therefore, cannot at all function as another juristic entity namely as public or private trust. This aspect of the matter has not been considered by the trial court. Merely because an application has been filed under Section 92 of the CPC, at the first instance the trial court granted the leave and subsequently even while
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examining as to whether the leave granted was correct or not there has been no application of mind to the question as to whether the said application was necessary in the first place. The suit has been instituted by a registered Society, in that case, provision of 92 of the CPC, is not at all applicable. Therefore, filing an application under Section 92 of CPC itself is misconceived. The grant of leave therefore was also not correct. The trial court was justified in revoking the leave granted u/s 92 of the CPC. However, the impugned order is challenged with regard to rejection of the plaint. If an application under Section 92 of the CPC was not at all necessary to be filed, then the suit filed by the registered Society- plaintiff No.1 along with other plaintiffs as members of the Society could have been filed de hors Section 92 of the CPC. Therefore, the trial court was not right in rejecting the plaint. Further, the trial court is also not right in looking into the objects of the Society and thereby concluding that
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the first plaintiff-society is not the owner of the Society. That is the matter for trial between the parties, therefore, for the aforesaid reasons the revocation of the leave granted on 18/3/2003 u/s 92 of the CPC is just and proper. Orders on IA I and IA IV would not call for any interference. However, the rejection of the plaint is incorrect. That portion of the order is set aside. The plaint is restored to the file. The trial court is directed to dispose of the suit in accordance with law. The appeal is allowed in the part. Parties to bear their own costs.
Sd/-
JUDGE Vmb