Calcutta High Court (Appellete Side)
Bhola Singh vs Karan Singh & Ors on 13 December, 2017
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
C.O. 3370 of 2017
Bhola Singh
Vs.
Karan Singh & Ors.
For the Petitioner : Mr. Sandip Dey
Mr. Suman Kumar Mukherjee
Ms. Nabanita Kapat
For the Proforma O.P. No. 8 : Mr. Barin Banerjee
Mr. Swapan Debnath
For the Proforma O.P. No. 6 : Mr. Malay Kr. Singh
Mr. Shyamal Mukherjee
For the O.P. Nos. 1 to 4 : Mr. Prabhjot Singh
CAV On : 04.12.2017
Judgment On : 13.12.2017
SHIVAKANT PRASAD, J.
Challenge in this application is against the order no. 252 dated 14th September, 2017 passed by Learned Judge, IV Bench, City Civil Court at Calcutta in Title Suit no. 115 of 1991, inter alia, on the grounds that the Learned Judge could not appreciate the fact that the plaintiff is a trustee and had filed the instant suit as a Trustee against another trustee alleging mismanagement and maladministration of the Trust and therefore, the suit was in the nature of Trustees inter se which could not be proceeded by the applicants who sought to be added as a plaintiffs claiming themselves to be the devotees.
Learned Judge could not appreciate that the scope and ambit of the instant suit being a suit between trustees inter se would be changed with the addition of the applicants as plaintiffs as the newly added plaintiffs are claiming to be the devotees and they cannot proceed with the suit inter se.
The plaintiff, being a Trustee of the Trust Estate of Tara Singh Sangat which includes Gurdwara situated at 7, Madan Mohan Barman Street, P.S. Jorasanko, Kolkata-700007 and other movable and immovable properties, filed a suit against the defendants/proforma opposite parties alleging mismanagement and maladministration of the Trust and the Trust properties being registered as T.S. 115 of 1991 in the Court of the learned Judge, VIth Bench, City Civil Court at Calcutta. The defendant no. 1 entered appearance and contested the suit by filing written statement denying all material allegations made in the plaint. During pendency of the suit, plaintiff appointed one Dara Singh, son of Late Sarjan Singh, as his constituted Attorney to look after the trust properties and to represent him before the authorities and the Courts and to represent him in the pending litigations by exertion of a Power of Attorney on 6th December, 2012. Accordingly, the said Dara Singh proceeded with the instant suit as the constituted attorney of the plaintiff. Later on, by a letter dated 29th November, 2016, the plaintiff/petitioner cancelled the said power of attorney and requested said Dara Singh not to act or do anything further on his behalf on the strength of power of attorney dated 06.02.2012. On 30th August, 2017, the plaintiff filed an application praying for dismissal of the suit for non-prosecution since the disputes and differences between the plaintiff/petitioner and the defendant no.1/ proforma opposite party stood amicably settled out of Court.
The opposite party nos. 1 to 5, claiming to be the devotees performing religious rites and customs in the aforesaid Gurdwara , filed an application under Order 1, Rule 10 of the Code of Civil Procedure for being added as plaintiff to proceed with the instant suit further in absence of the plaintiff/petitioner. The opposite party nos. 1 to 5 alleged that two trustees being the plaintiff and the defendant no. 1/proforma opposite party have connived between themselves and decided not to proceed with the suit which would be to the serious detriment of the Trust and the functioning of the Gurdwara.
It was contended that the applicants namely Karan Singh, Surjit Singh, Kunal Singh, son of late Sarjan Singh; Dina Singh, son of late S. Teja Singh; Nanak Singh, son of late Dilip Singh are members of AGARHARI SIKH SAMAJ residing in Kolkata for many years and they have learnt that due to the mismanagement of the properties of the Trust TARA SINGH SANGAT formed initially in the year 1959 by one Tara Singh, a AGARHARI SIKH which included Sikh Gurdwara (Temple), a place for holy worship of Sri Guru Granth Saheb Ji. The other properties amongst others of the said Trust are situated nearby and/or adjacent thereto. In the main Gurdwara where Sri Guru Granth Saheb Ji has been established, ritual according to Sikh tradition are required to be conducted by the trustees, devotees and Sikh worshippers with various articles of worship. In the pending suit against Gurujit Singh an order of injunction has been passed. An order for Advocate-commissioner has also been passed for making inventory of the movable and immovable properties of the Trust. The applicants apprehended that both the plaintiff and the defendant are trying to misappropriate movable and immovable properties of the Trust.
It is further contended on behalf of the applicants that on earlier occasion there were disputes amongst the then Trustees due to the mismanagement of the properties of the Trust Estate and between the worshipers of Tara Singh Sangat and suit no. 257 of 1927 was filed in the Hon'ble High Court of Judicature in Bengal and provisions of Section 92 of Code of Civil Procedure was invoked and involvement of the then Advocate General of Bengal was done for appointment of new trustee and framing of a Scheme which is reflected from the deed dated 21.7.1982. In their application for addition of parties the opposite parties applicants have alleged that the plaintiff and the defendant no. 1 who were appointed trustees by the deed of appointment dated 21st July, 1982 are of close relations and the plaintiff filed the suit to protect the general public of Agrahari Sikh worshippers as there was mismanagement noticed and the plaintiff was being assisted by one close relation namely Dara Singh who was appointed by the plaintiff as constituted Attorney. Applicants/opposite parties have come to learn that the plaintiff and the defendant no. 1 for their self interest have connived within themselves and decided not to proceed with the case to the serious detriment of the cause of the Agrahari Sikh Samaj for the benefit of whom the Trust was formed.
The learned Trial Court by order no. 252 dated 14.9.2017 rejected the prayer of the plaintiff for dismissal of the suit or non-prosecution, striking out his name from the plaint, and further allowed the applicants/opposite parties to be added as plaintiffs.
This is the said order under challenge before this Court under the scheme of Article 227 of the Constitution of India, inter alia, on the grounds that learned Judge has failed to appreciate the fact that the plaintiff is a trustee who filed the instant suit as a Trustee against another trustee alleging mismanagement and maladministration of the Trust and therefore, the suit was in the nature of Trustees inter se which could not be proceeded by the applicants sought to be added as a plaintiffs claiming themselves to be the devotees. Accordingly, the petitioner has prayed for setting aside the order impugned as by in law and in fact as the order impugned suffers from serious illegality and gross material irregularity as apparent from the tenor of the order impugned itself.
The contention of the plaintiff is that defendant no. 1 being relatives of the plaintiff be trusted the defendant no. 1 who used to collect report from tenants and also look after affairs of the trust estate. But since early part of January, 1990 the defendant no. 1 is not keeping good terms with the plaintiff nor showing any account to the plaintiff as to the income nor obeying the instruction made by the plaintiff to the defendant no. 1. The defendant no. 1 on the contrary, is acting arbitrarily against the object of the trust as set out by the founder and has been misappropriating the incomes derived from the properties of the said Trust Estate, not doing proper maintenance of the properties of the said trust estate, not doing proper repairs and management, not paying corporation and other charges and the plaintiff has got information that defendant no. 1 is trying to induct tenant in respect of the properties belonging to the said trust Estate without the permission of the plaintiff in respect of a portion of a room at 7, Madan Mohan Barman Street, Calcutta described in the Schedule 'A' to the plaint on taking lump sump salami inspite of the strong objection of the plaintiff. Even the defendant no. 1 had not displayed the accounts in the year 1990 to the plaintiff and the documents as to the affairs of the trust estate. As such, the plaintiff filed the suit for decree of declaration that all acts done by the defendant no. 1 on behalf of Tara Singh Sangat without consent of the plaintiff are illegal and not binding upon the said trust and also for a decree of declaration that the plaintiff is entitled to accounts and inspection of all documents, Books of accounts etc. of the said trust Tara Singh Sangat from the date of appointment of defendant no. 1 and further prayed for permanent injunction restraining the defendant no. 1 from doing any acts in respect of the trust estate "Tara Singh Sangat" without written consent of the plaintiff and from letting out or part with possession of the 'A' Schedule property to any person and also from running any business thereon in his own name or in the name of his men and agent in the said 'A' Schedule property without the written consent of the plaintiff, etc. Admittedly, the suit property belongs to estate of Tara Singh Sangat being a trustee estate. Admittedly, the plaintiff Bhola Singh and defendant no. Surjit Singh other trustees of the said trust properties.
Having regard to the fact that the applicants/opposite parties had made serious allegation against the plaintiff and the defendant no. 1 regarding the mismanagement of the trust, the learned Trial Court rejected the application of the plaintiff for dismissal of the suit for non-prosecution and allowed the applications to be added as plaintiffs in the case is not to decide dispute at the trial of the suit and if the petitioners fail to prove their case the suit would be dismissed.
I fail to understand, why the learned Trial Court deleted the name of original plaintiff if he was of the opinion that a serious allegation against the plaintiff and the defendants regarding mismanagement of the trust has been made out. At the best, the plaintiff could have been transposed to the club of defendants in view of the fact that the plaintiff and the defendant no. 1 are the trustees. So they are the necessary parties to a suit wherein the devotee, alleged misappropriation of the properties or the mismanagement of the trust.
It would be apt to reproduce the provision of Section 92 of Sub- section 1 of the Code of Civil Procedure relating to public charities which reads thus--
"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 whole or any part of the subject matter of the trust is situate to obtain a decree--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require."
Plaintiff does not appear to have obtained the direction of the Court and leave of the Court to institute a suit on behalf of the Trustee Estate of Tara Singh Sangat rather he filed suit as a trustee against another trustee alleging mismanagement or misappropriation of fund. The plaintiff subsequently filed application to dismiss the suit for non-prosecute as the matter between the two trustees settled outside the Court. It is submitted that the parties to the suit are related to each other. Therefore, even addition of the applicants/opposite parties as the plaintiffs to proceed with self same suit filed by the petitioner Bhola Singh is not meaningful in the context of the averment made in the plaint. The applicants/opposite parties if they claim to be independent devotees, they could file a suit in representative character with the leave of the Court. In the given facts of the case, the Court has to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 of Code of Civil Procedure by persons whose activities are not for protection of the interests of the public trusts but for gaining of their own interest out of the trust properties. The plaint as it was filed by one trustee against another trustee appears to be purely a private personal dispute between them. From the facts of the case itself, as pointed out by learned Advocates of the parties, that they being interrelated to each other, the applicants/opposite parties cannot be said to have genuine interest or intention to protect the public right of the beneficiaries but are only using the forum provided by Section 92 to air private and personal grievances.
It has been held in case of Swami Parmatmandnd Saraswati & Ors. Vs. Ramji Tripathi & Anr. reported in 1974 AIR 2141 : 1974 SCC(2) 695 which reads thus--
"that a suit under Section 92, C.P.C., is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. When two or more persons interested in the trust bring a suit purporting to be under the section, the question whether the suit is to vindicate the personal or individual right of a third person to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. The suit can proceed only on the allegations 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 reliefs that are mentioned in the section. If the allegation of breach of trust is not substantiated or the plaintiff had not made out a case for any direction by the court for the proper administration of the trust, the very foundation of the suit would fail; 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 declaration of their individual or personal rights or the individual or personal rights of any other person or persons whom they are interested then the suit would be outside the scope of S. 92. When the right to the office of the trustees is assented or denied and relief asked for on that basis, the suit falls outside Section 92. There is no reason to think that whenever a suit is brought by two or more person under Section 92, the suit is to vindicate the right of the public. In deciding whether the suit falls within the section the Court must go beyond the reliefs and have regarded to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought."
Thus, bearing in mind the principle laid down by the Hon'ble Apex Court and further in consideration of the averment made in the plaint and the suit filed inter se between the trustees of the Trust Estate and there being no cause of action for reason, the matter settled between the two trustees outside the Court and the plaintiff seeking dismissal of the suit for non-prosecution without the leave of the Court, this Court finds that the parties appear to have vindicated in the private interest being related to each other.
Even adding the applicants/opposite parties to continue the said suit cannot be viewed from the context of the averments made in the plaint to vindicate the interest of the independent devotees having interest in the religious trust. If that being so, then they can file suit in representative character with the leave of the Court on notification to all the devotees.
Therefore, this revisional application is allowed by setting aside the order impugned dated 14th September, 2017 and direct the learned Trial Court to reconsider the application for non-prosecution filed by the plaintiff in the light of the observation made in this order. However, there shall be no order as to costs.
Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)