Calcutta High Court (Appellete Side)
Sri Tapendro Mullick vs Kumar Mrigendro Mallick on 13 March, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 2923 of 2018
With
CAN 7366 of 2018
Sri Tapendro Mullick
Vs.
Kumar Mrigendro Mallick, since deceased,
represented by his son Hirendro Mullick and others
For the petitioner : Mr. Kaushik Dey
For the opposite party no. 4 : Mr. Jayanta Mitra,
Mr. Suddhasatwa Banerjee,
Ms. Radhika Singh
For the opposite party
nos. 1 to 3 & 5 : Mr. Saktinath Mukherjee,
Mr. Reetabrata Mitra,
Mr. Dipendra Nath Chunder
Hearing concluded on : 07.03.2019
Judgment on : 13.03.2019
Sabyasachi Bhattacharyya, J.:‐
1.The matter has a chequered history. Shorn of unnecessary details, on February 21, 1887 a trust/settlement was created by one Raja Rajendra Mallick Bahadur by way of a Will, thereby dedicating several properties (including the present suit property) and creating a dubutter in the name of the deity Sree Sree Juggernath Jee, providing for performance of religious functions as well as charitable acts for the poor and less privileged from the funds of such trust.
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2. The trustees of the said trust granted a lease in 1960 in favour of one Md. Ismail for a period of 21 years expiring on April 30, 1981. In or around August, 1970, Md. Ismail assigned the residue part of the lease to the defendant no. 1/opposite party no.4 by a deed of assignment.
3. The defendant no. 1/opposite party no. 4 instituted against the trustees/shebaits of the said trust a suit, bearing Title Suit No. 176 of 1981, seeking specific performance of an oral agreement dated August 16, 1980 whereby the trustees had agreed to extend and/or renew the lease for a further period of 70 years. The said suit was decreed ex parte, inter alia directing the trustees to execute and register a renewal lease in favour of opposite party no. 4 within 90 days.
4. Subsequently the trustees issued letters to the proposed lessee cancelling the agreement for lease dated April 29, 1981 and filed an application under Section 28 (1) of the Specific Relief Act, 1963 seeking to rescind the agreement for renewal of lease dated November 25, 1960 and recall and/or set aside the ex parte decree dated July 25, 1985 on the ground that the opposite party no. 4 had breached the agreement. The said application was allowed on contest on July 31, 1996. The opposite party no. 4 preferred against such order a first miscellaneous appeal bearing F.M.A. No. 37 of 1997 and moved an application in connection therewith for stay, which was disposed of by a conditional order of depositing Rs. 1 crore. A special leave petition was preferred against the said order by the opposite party no. 4‐company and the Supreme Court, by its order dated March 10, 1997, reduced the amount and the same was paid by the opposite party no. 4.
5. The trustees also preferred against the order of this court a special leave petition which was dismissed with certain directions.
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6. The opposite party no. 4‐company accordingly levied execution and filed a draft deed. The trustees filed an application under Section 47 of the Code of Civil Procedure on the ground that the draft lease deed filed by the opposite party no. 4 was fraudulent inasmuch as several clauses, which were not there in the original lease deed, were inserted therein. The application was registered as Miscellaneous Case No. 2 of 2006. However, such prayer was turned down and the draft lease deed was registered on April 12, 2006.
7. Meanwhile, on October 8, 1994 the trustees obtained permission from this court for letting out the suit property to a third party. On an appeal against such order being preferred by the opposite party no. 4‐company, a division bench of this court stayed the permission on condition of Rs. 50 lakhs being deposited, which was deposited accordingly.
8. A copy of the registered lease deed dated April 12, 2006 was obtained by the trustees allegedly in June, 2006. On April 9, 2009 the trustees, namely Kumar Mrigendro Mallick (since deceased), Kumar Purnendro Mallick (since deceased) and Kumar Dipendro Mallick instituted a suit, Title Suit No. 1229 of 2009 (later renumbered as Title Suit No. 8687 of 2014), praying inter alia for a declaration that the plaintiffs have a right to prevent the defendant form making any construction or claiming any right in respect of the suit property at premises no. 225 B, Acharya Jagadish Chandra Bose Road, Kolkata, beyond what was permitted by the lease dated November 25, 1960, for rectification of the lease executed and registered on April 12, 2006 to bring it in accordance with the real intention of the parties to the lease dated November 25, 1960 and in accordance with the order of the Supreme Court, for permanent injunction restraining the defendant, their men, agents and all persons acting on their behalf from changing in any 4 way the nature and character of the suit property beyond what was permitted under the provisions of the lease dated November 25, 1960 and other consequential reliefs.
9. Subsequently Kumar Mrigendra and Kumar Purnendro, two of the trustees and plaintiffs in Title Suit No. 8687 of 2014, expired. An application was filed thereafter by Dipendro, the surviving trustee and plaintiff no.3/opposite party no. 3 and Rupendro, the other surviving trustee and proforma defendant no. 2/proforma opposite party no. 5, as well as by Hirendro, the son of one of the deceased trustees (Mrigendro) and by Suvendro, one of the sons of the other deceased trustee (Purnendro). The application contained a composite two‐fold prayer : to substitute the names of the two deceased plaintiffs with their heirs, namely Hirendro, Suvendro and Tapendro (the present petitioner) and to withdraw Title Suit No. 1229 of 2009 (later renumbered as Title Suit No. 8687 of 2014) without liberty to sue afresh on the same cause of action.
10. The composite application was put up for hearing on November 27, 2017 and the trial court observed that the same could not be entertained, giving an opportunity to the applicants therein to segregate those two petitions with specific prayers and adjourning the hearing.
11. The applicants, however, filed on September 7, 2017 only one application, for withdrawal of the suit without liberty to sue afresh.
12. The trial court, vide order dated December 14, 2017, rejected the composite application as misconceived and infructuous, without going into its merits. December 22, 2017 was fixed as the date for hearing of the subsequent application for withdrawal.
13. Meanwhile the present petitioner Tapendro had filed a written objection against the withdrawal application as well as two applications. The first such application was under Order I Rule 10 of the Code of Civil Procedure, for adding Tapendro as a plaintiff 5 in the suit in the capacity of the son of the deceased plaintiff no. 2 Purnendro. The second was under Section 151 of the Code for stay of further proceedings of the suit till disposal of the application under Order I Rule 10 of the Code.
14. Vide order dated December 22, 2017, the trial judge allowed the petitioner's application under Order I Rule 10 of the Code of Civil Procedure was allowed, thereby impleading the petitioner in the category of plaintiff, to act as co‐trustee of the plaintiff trust, subject to the condition that the petitioner could not be either plaintiff or defendant but could act as a plaintiff in the capacity of a co‐trustee but not otherwise and he was bound by the terms and conditions of the trust deed; beyond the conditions of the trust deed, none of the co‐trustees had any locus standi in the suit to act independently and whatever they did would all depend on the terms and conditions of the trust deed but not otherwise.
15. The application under Section 151 of the Code, for stay of the suit till disposal of the application under Order I Rule 10, was dismissed as infructuous.
16. However, despite the written objection of the petitioner, the application for withdrawal of the suit was allowed, thereby dismissing the suit as withdrawn without any liberty to "file afresh".
17. The petitioner, being thus aggrieved by the said order dated December 22, 2017, has filed the present revisional application challenging the portion of the impugned order whereby the suit was dismissed as withdrawn without liberty to sue afresh.
18. In connection with the present revision, an application bearing C.A.N. 7366 of 2018 has also been filed by the opposite party nos. 1 to 3 with a prayer to treat the application dated September 7, 2017 filed in the trial court in Title Suit No. 8687 of 2014, for withdrawal of the same without liberty to sue afresh, as an application by the majority 6 trustees through their co‐trustee, Kumar Suvendro Mallick as a plaintiff. All the said opposite parties have used individual affidavits in support of C.A.N. 7366 of 2018. The petitioner has used an affidavit‐in‐opposition to the said application, to which affidavits‐in‐reply have been filed.
19. Learned counsel for the petitioner argues that the suit could not be withdrawn at the instance of two of the plaintiffs in the absence of, and in the teeth of the specific opposition of, the other plaintiff. Since the petitioner was added as a plaintiff by the impugned order itself, there was no scope of ignoring the specific opposition of the petitioner to permit the suit to be withdrawn without liberty to sue afresh on the same cause of action.
20. The petitioner argues that it would be beyond the scope of Order XXIII Rule 1 of the Code to permit some of the plaintiffs to withdraw a suit without the consent of all.
21. Learned counsel for the petitioner further argues that the second application for withdrawal of the suit, under Section 151 of the Code of Civil Procedure, was filed by the present opposite party no. 2 Suvendro, who was, and still is, not a party to the suit. Although Suvendro was sought to be substituted as one of the sons of Purnendro, a plaintiff in the suit, in the first composite application for substitution and withdrawal of suit, upon the trial court granting leave to file separate applications for substitution and withdrawal of suit, only an application for withdrawal was filed, but no further substitution.
22. As such, it is argued, Suvendro was not even a party to the suit and had no locus standi to file the second application for withdrawal of suit. Although the other surviving trustees have taken out an application in support of the said application, the same has been filed post facto, for the first time in this court. No such application or affidavit was 7 even filed in the court below. Thus, it is argued, the application was not maintainable in the eye of law.
23. On the other hand, it is argued on behalf of the opposite party nos. 1 to 3 that the trust deed contained a specific provision that in case of any difference of opinion amongst the shebaits or trustees, the question was to be decided according to the majority votes. Learned senior counsel appearing for the opposite party nos. 1 to 3 submits that such provision in the trust deed was also in consonance with Section 48 of the Trust Act, 1882 which stipulates that when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.
24. In the present case, all the surviving trustees as well as the original trustees, including the father of Tapendro, agreed to the transactions giving rise to the settlement between the plaintiffs and the defendant no. 1. Hence, as per the provisions of the trust deed‐in‐ question as well as Section 48 of the Act of 1882, the decision of the majority of the trustees would prevail over that of Tapendro.
25. Moreover, Tapendro became a shebait/trustee in terms of the trust deed upon the demise of his father Purnendro, as the son of the said deceased, and was added as a plaintiff on his own prayer accordingly.
26. As such, it is argued that Tapendro could not stand in the way of the suit being questioned at the instance of all the other surviving trustees, pursuant to negotiations between the said trustees and the defendants/opposite party no. 4.
27. This apart, it is argued that there is no discretion of the court in refusing a prayer for withdrawal of a suit without liberty to sue afresh. Since the majority of the trustees, barring Tapendro, agreed to such withdrawal, Tapendro, acting singly, had no locus standi to prevent the same.
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28. In this context, learned senior counsel appearing for the opposite party nos. 1 to 3 cites a judgment reported at AIR 1994 SC 2466 [Bihar Public Service Commission and another vs. Dr. Shiv Jatan Thakur and others], in support of the proposition that no single member of a body of members could challenge the joint decision of the said body or institution. Such a dissenting member would have to be regarded to be a party to the function required to be performed or the duty required to be discharged by the body or institution.
29. Learned senior counsel appearing for the opposite party no. 4 supports the arguments of the opposite party nos. 1 to 3 and contends that a trustee could act on behalf of others, if there is a clause in the trust deed authorising the execution of the trust to be carried out by one or more or by majority of the trustees. Although as a rule, trustees must execute the duties of their office jointly, the general principle, it was held, was subject to the following exceptions:
(1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co‐trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co‐trustee is in the regular course of the business; (6) where the co‐trustee merely gives effect to a decision taken by the trustees jointly.
30. Learned senior counsel cites for the said proposition a judgment reported at (2005) 1 SCC 172 [J.P. Srivastava & Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd. and others].
31. In such view of the matter, it is argued on behalf of both the sets of opposite parties that Tapendro had no right to resist the withdrawal of the suit without the liberty to sue afresh.
32. The moot questions, which fall for adjudication in the present case, are as follows: 9
(i) Whether the provisions of Order XXIII Rule 1 (5) of the Code of Civil Procedure prevail over the specific clause in a trust deed empowering some of the trustees to act on behalf of others according to the majority decision and/or over Section 48 of the Trust Act, 1882;
(ii) Whether, in view of the previous substitution application having been rejected, the present opposite party nos. 1 to 3 could maintain a second application for withdrawal of the suit, particularly by having the same affirmed by a non‐party to the suit;
(iii) Whether Tapendro, by virtue of being added as a son of the deceased plaintiff no. 2, Purnendro, in the suit as well as having become a trustee in the same capacity, could resile from the stand taken by Purnendro, who was a party to the transactions which preceded the withdrawal of the suit.
33. Taking up the first question, Order XXIII Rule 1 is as follows:
"Code of Civil Procedure, 1908: ‐ Order XXIII Rule 1:
1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub‐rule (1) shall be accompanied by an affidavit of the next fried and also, if the minor or such other person is represented by a 10 pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied, ‐
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject‐matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject‐ matter of such suit or such part of the claim.
(4) Where the plaintiff -
(a) abandons any suit or part of claim under sub‐rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub‐rule (3),
he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject‐matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub‐rule (1), or to withdraw, under sub‐rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
34. Sub‐Rule (5) of Rule 1 of Order XXIII of the Code contemplates a situation where one of several plaintiffs tries to abandon a suit without the consent of the other plaintiffs. However, the converse need not be necessarily true, that is, if an overwhelming majority of the plaintiffs decide to abandon a suit, only one dissenting plaintiff might not get the advantage of Sub‐Rule (5), which is evident from the language of the provision itself.
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35. This apart, the said provision falls within the domain of procedural law and is the handmaid of justice. It cannot be set in stone and has to be read in proper context and perspective, taking into account the actual interest of the dissenting plaintiff in the suit property as against the others, in the context of the scope of the suit.
36. For example, if one of the plaintiffs transfers her/his entire share of the suit property to the other plaintiffs but still remains arrayed as a plaintiff, Sub‐Rule (5) of Rule 1 of Order XXIII cannot be a fetter to the transferee‐plaintiffs to abandon the suit without liberty to sue afresh, even in the absence of the transferor‐plaintiff.
37. In the present case, the trust deed categorically provides that in case of any difference of opinion amongst the shebaits/trustees, the majority opinion would prevail. Section 48 of the Trusts Act, on the other hand, provides that co‐trustees cannot act singly, except where the instrument of trust otherwise provides.
38. In the instant case, not only did all the surviving plaintiffs agree to withdraw the suit without liberty to sue afresh, the other trustees, who were not substituted, also joined in such prayer and have reiterated the same in this court as well, by filing C.A.N. 7366 of 2018.
39. This apart, the scope of the suit revolves around a dispute between the trust and a third party, that is, the defendant no. 1/ opposite party no. 4 and is not an inter se dispute between the trustees or pertaining to the welfare of the trust itself or mismanagement thereof.
40. In such a scenario, the provisions of the trust deed must prevail, attributing primacy to the majority opinion of the trustees as opposed to a lone dissenter, even if the latter was added as a plaintiff.
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41. Another special feature of the instant case marks a departure from the usual scope of operation of Order XXIII Rule (1) (5) of the Code - the trial court, in the earlier part of the impugned order itself, allowed the present petitioner to be added subject to certain conditions. It was observed inter alia that the petitioner could act as a plaintiff in the capacity of a co‐trustee but not otherwise and he is bound by the terms and conditions of the trust deed. None of the co‐trustees had any locus standi in the suit to act independently beyond the terms and conditions of the trust deed. This was on the premise that the suit had been filed by the trust, represented by the trustees and not in the individual capacity of the trustees.
42. Such a condition was perfectly in consonance with the spirit of the trust and well as the Trusts Act, 1882. As such, the operation of Order XXIII Rule (1) (5) of the Code, in the present case, is circumscribed and regulated by the clause of the trust deed, which bound the petitioner to the majority trustees' view and by the scope of the suit, which did not pertain to any dispute inter se the trustees or for the welfare of the trust or for framing any scheme for the trust or seeking any permission to transact on behalf of the trust.
43. For the aforesaid reasons, the first question which fell for consideration is answered in the negative. The provisions of Order XXIII Rule (1) (5) of the Code of Civil Procedure, being procedural in nature, are subject to the scope of the suit and to the extent of rights of the dissenting plaintiff vis‐à‐vis the majority of plaintiffs and trustees who want to withdraw the suit without liberty to sue afresh.
44. As far as the second question is concerned, although the previous substitution application was dismissed on a technical ground only, no further substitution application was taken out but only a withdrawal application was filed. Since the 13 plaintiff was the trust, and not the trustees in their individual capacity, and since the trust was sufficiently represented by the surviving shebaits who joined in withdrawing the suit, along with the other trustees apart from the petitioner, the second application for withdrawal was maintainable at the instance of the opposite party nos. 1 to 3. Although Suvendro was not substituted and was not a party to the suit, he affirmed the affidavit in support of the withdrawal application in the capacity of a trustee, as a representative of and on behalf of the trust, as expressly authorized by the surviving plaintiffs and other trustees.
45. Hence the second question is answered in the affirmative.
46. As far as the third question is concerned, it is seen from the records that although Tapendro was added as a plaintiff as an heir of his father Purnendro, he was not impleaded in his individual capacity but as a trustee/shebait of the trust, which was the plaintiff. As such, strictly speaking, Tapendro was not substituted as the heir of Purnendro under Order XXII Rule 4 but as a shebait/trustee under Order XXII Rule 10 of the Code. Hence Tapendro had not stepped into the shoes of Purnendro but had his own say as a trustee.
47. However, Tapendro himself was added with a rider that he should act in consonance with the terms and conditions of the trust deed, which categorically provided that the majority decision of the trustees was binding on an individual trustee. Thus Tapendro was precluded by the terms of the trust deed from resisting any majority decision of the other trustees.
48. As such, Tapendro did not have the locus standi to resist the majority share‐holders' decision to withdraw the suit. This is in consonance of the ratio laid down in J.P. Srivastava & Sons (supra) and Bihar Public Service Commission and Anr. (supra) , although 14 the factual context in the second judgment was different from the case and hand, since there the question pertained to the rights of a member to question correctness of functions or duties performed by the Bihar Public Service Commission.
49. Hence the third question has to be decided in the negative.
50. In such view of the matter, the trial judge was justified in adding the petitioner on the conditions stipulated in the trust deed and in permitting the suit to be withdrawn without liberty to sue afresh.
51. Thus, no interference with the impugned order is called for.
52. Accordingly C.O. No. 2923 of 2018 is dismissed, thereby affirming the order impugned therein. Consequentially C.A.N. 7366 of 2018 is disposed of.
53. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )