Calcutta High Court
Balaram Das vs Guru Charan Biswas on 17 January, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
IA No. GA/35/2022
IN
CS/308/1872
BALARAM DAS
VS.
GURU CHARAN BISWAS
IA No. GA/41/2023
IN
CS/308/1872
BALARAM DAS
VS.
GURU CHARAN BISWAS
For the petitioner : Mr. Sudip Ghosh, Advocate
Mr. Tapas Manna, Advocate
Mr. Sanatan Panja Advocate
For Dakshineswar Kali Temple : Mr. Amitesh Banerjee, Senior Advocate
& Debottar Estate Mr. Roibat Banerji, Advocate
Reserved on : 12th December, 2024
Delivered on : 17th January, 2025
ORDER
Bivas Pattanayak, J. :-
1. In GA 35 of 2022, the applicant made the following prayers:
"a) Leave may be granted to the applicant to file the present application with short cause title;
b) To set aside and/or cancelled the said purported Election Notification dated Nil issued by the Chairman-Cum-Special Officer for holding he Dhakhineswar Kali Temple Debottor Estate Board Election.
c) To set aside the purported Election Declaration Notice dated 28.04.2022 issued by the Chairman-Cum-Special Officer-Election-2022 forthwith.
d) To cancel/set aside and/or rescind the entire Election process of the said Trustee Board of Dhakineswar Kali Debottor Estate as well as the purported 2 publication notice/Declaration of uncontested Election result-2022 dated 28.04.2022 forthwith.
e) To appoint a Receiver for holding the charge of the said Temple till the newly elected Trustee Board is taken over the charge in accordance with law or till the disposal of this application.
f) To pass an interim order of stay of operation of the said purported Trustee Board Election-2022 result, published on 28.04.2022 by the Chairman-Cum-Special Officer forthwith.
g) An interim order in terms of the aforesaid prayers.
h) Such further or other order/orders may be passed, as your lordships ay deem fit and proper."
2. In GA 41 of 2023, the applicant made the following prayers:
"a) Leave may be granted to the applicant to file the present application with short cause title;
b) To condone the delay of 8 days from 27.06.2023 to 3.8.2023 after excluding the statutory period of 30 days in filing the aforesaid recalling application forthwith.
a) To recall the judgement and order dated 27.06.2023 passed by the Hon'ble Justice Shekhar B. Saraf of this Hon'ble High Court in G.A.NO. 30 of 2021 and other connected applications arising out of the said abated Suit No. 308 of 1872 on the sole grounds for suppression of materials facts and in violation of principle of natural justice forthwith.
a) To place the aforesaid applications being G.A.No. 30 of 2021 and all other connected applications before the appropriate Bench of this Hon'ble High Court having determination and restore to its file and original number forthwith.
b) Such further or other order/orders may be passed, as your lordships may deem fit and proper;"
3. During the course of hearing, Mr. Sudip Ghosh, learned advocate appearing for the applicants does not press for prayers made in the aforesaid applications as noted hereinabove. However, he submitted that the applicants intend to mould their prayer in respect of the query raised by the Court in GA 29 of 2021 on 22nd January, 2021 to the extent that firstly, who are the parties to the suit and whether they are alive or not and secondly, whether the suit itself is alive or not. The reliefs can always be moulded where the pleading in substance disclose of such fact, even though such prayers are not made 3 originally and the parties are aware of the case. In support of his contentions, he relied on the following decisions:
(i) P B Gajendragadkar, K.N. Wanchoo, M. Hidayatullah versus Ramaswami1
(ii) Pasupuleti Venkateswaru versus The Motor & General Traders2
(iii) Bachhaj Nahar versus Nilima Mandal & Anr.3 He further submitted that Sri Balaram Das, who instituted the suit, died in the year 1920. The administrative suit cannot continue for an indefinite period.
Referring to Section 92 of the Civil Procedure Code, 1908 (hereinafter referred to as the 'Code'), he submitted that in the case of any express breach and there is a necessity for a direction of the Court for administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust with the leave of the Court may institute a suit in order to obtain a decree, for the purpose morefully described in Clause (a) to Clause (h) of Section 92(1) of the Code including removing any trustee, appointing a new board of trustee etc. Similarly, Section 3 of the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the 'Act of 1920') provides that any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the Court having jurisdiction and seek for necessary directions, morefully described in Clause (1) and Clause (2) of the said provisions. Therefore, there is no reason 1 AIR 1966 SC 735 2 AIR 1975 SC 1409 3 AIR 2009 SC 1103 4 that the instant administrative suit, in relation to which applications are being filed, should continue for an indefinite period of time. The provisions contained in the Code as well as in the Act of 1920 gives right to the Advocate General or the interested party, as the case may be, to apply to the Court for fresh directions, in the event of any breach. If the administrative suit is not alive, then the applications for constitution of new board of trustees by election cannot be at all maintainable. "Administration" means the management of the estate of a deceased person who has left no executor. The object of an administrative suit is to have the estate administered under a decree of the Court. In such a suit the whole administration and settlement of the estate are assumed by the Court. The suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others. Once the decree is passed in the suit in final form, such suit comes to an end. In support of his contention, he relied on the decision of Gujarat High Court passed in Bai Asmalbai W/O. Vora Mahamad Alli versus Esmailji Abdulaji and Ors.4 In light of his aforesaid submissions, he prayed for an appropriate order and record finding as to whether the suit, in the nature of administration of the estate of Debottor, is still alive or not.
4. On the contrary, Amitesh Banerjee, learned Senior Advocate appearing for Dakshineswar Kali Temple & Debottar Estate, at the very beginning, submitted that the aforesaid issue as to whether the administrative suit is alive or not has been set at rest by this Court by its order passed in GA 30 of 4 AIR 1964 Guj 174 5 2021 with GA 31 of 2022, GA 33 of 2022 on 30 th August, 2022. Similar contention was raised before the Co-ordinate Bench that the suit is dead since the original parties have died long ago and the Court observed that when it comes to administrative suit, the Court is at liberty to allow the trustees/sebaits to apply for the implementation of the scheme in connection with the administration of Dakhineswar Temple & Debottar Estate. Such findings and observation of the Co-ordinate Bench has never been challenged in appeal. Therefore, such findings and observations of the court have reached its finality. Thus, the argument that the administrative suit is not alive cannot be sustained. Moreover, Dakhsineswar Kali Temple & Debottar Estate is being run under a scheme which is monitored by Hon'ble High Court at Calcutta. The said Debottar Estate is a private trust and not a public trust. He also indicated that orders from time to time were being passed in the administrative suit by this Hon'ble Court for administration of the estate including formation of new board of trustees by way of election. The finding of the Court in its order dated 30th August, 2022 will act as a res judicata since the issue raised has already been decided by this Court and has reached finality. To buttress his contention, he relied on the decision of Hon'ble Supreme Court passed in Jamia Masjid versus K.V. Rudrappa5.
In light of his aforesaid submissions, he prayed for dismissal of both the applications.
5. In reply to the contentions raised on behalf of respondents, Mr. Ghosh, learned advocate for the applicants drew the attention of the Court to order 5 (2022) 9 SCC 225 6 dated 30th August, 2022 wherein the Court clarified that there are no observations passed by this Court on merits of the prayers made therein. Therefore, the observations cannot act as a res judicata so far as the present applications are concerned. The provision of law clearly lays down that repeated applications are to be made for administration and management of the estate separately and not in a dead administrative suit.
6. Upon considering the submissions made by learned advocates appearing for respective parties, at the outset, since the learned advocate for the applicants not pressed the prayers made in GA 35 of 2022 and GA 41 of 2023, the said prayers stand dismissed as withdrawn. However, this court would examine the only issue which has been urged during hearing of the instant applications as to whether the administrative suit being CS 308 of 1872 is alive or not.
7. It is a fact that in GA 29 of 2021 on 22 nd January, 2021, a Coordinate Bench of this Court raised a query as to who are the parties to the suit and whether they are alive or not. Basing on such query, the applicant herein has contended that the suit is not alive after such inordinate period. By an order dated 10th March, 2022 in GA 30 of 2021, a Coordinate Bench of this Court appointed Justice Jyotirmay Bhattacharya, Former Chief Justice, Calcutta High Court as Chairman-cum-Special Officer of the Dakhineswar Kali Temple & Debottar Estate, Kolkata wherein he was directed to hold election for constituting a new board of trustees of the said estate. Applications being GA 31 of 2022, GA 32 of 2022 and GA 33 of 2022 were filed seeking modification or recall of the order dated 10th March, 2022. In the said applications, it was 7 contended on behalf of the applicants that the order dated 10th March, 2022 for holding election was passed in a dead suit since the original parties are long dead. While dealing with the aforesaid contention, the Co-ordinate Bench in its order dated 30th August, 2022 observed as follows:
"5. This Court agrees that the parties to the original appeal might be dead unless they're over 150 years old and a world record for the oldest human alive is being broken. But the material facts of the judgments cited by the counsel starkly differ from the present one at hand. This isn't an ordinary suit but rather an administrative one under the control of this Court. When it comes to this administrative suit, the Court is at liberty to allow the Trustees/sebaits to apply for the implementation of the Scheme in connection with the administration of Dakhineswar Temple and Debottar Estate."
8. From the aforesaid observation, it is found that the Coordinate Bench has categorically opined that the suit is not an ordinary suit but an administrative one under the control of this Court and when it comes to administrative suit, the Court is at liberty to allow the Trustees/sebaits to apply for the implementation of the Scheme in connection with the administration of Dakhineswar Kali Temple & Debottar Estate. Admittedly, such observation of the Court has not been challenged in appeal and it has reached its finality. Mr. Ghosh, learned advocate for the applicants relying on the decision of Gujarat High Court passed in Bai Asmalbai W/O. Vora Mahamad Alli (supra) as well as referring to Section 92 of the Code and Section 3 of the Act of 1920 tried to impress upon the Court contending that since the administrative suit is not alive, there is requirement to file separate and distinct applications or suits under relevant provisions of law for administration of the estate and holding election for appointment of new board of trustees and such applications cannot be entertained in a dead suit. The aforesaid decision in Bai Asmalbai W/O. 8 Vora Mahamad Alli (supra) has taken into consideration several other decisions of various High Courts where the scope of administrative suit has been dealt with. The sum and substance which comes out from the aforesaid decision is that "administration" means management of deceased's estate. The Court is requested to assume its management to take upon itself the functions of an executor or administrator and administer the estate. The administration of a deceased's estate consists of collection and preservation of assets, payment of debts and legacies, acts in respect of adverse claims to assets, dealing with creditors or legatees and distribution finally among the heirs or next of kin. These are the functions of an administrator and the object of an administrative suit is to have the estate administered under a decree of Court, in other words, the Court itself assumes the function of an administrator and administrates the estate.
9. During the course of hearing, learned advocate representing Dakhineswar Kali Temple & Debottar Estate handed over previous orders of this court passed in different interlocutory applications. Upon going through the orders, it is found that the trust is being administered by Court. The suit was filed in the year 1872 for framing a scheme for implementation of deed of arpannama executed by Rani Rashmoni and the order was made for administration in 1912 and the scheme was substantially modified on 16th July, 1929. A further modified procedure had been adopted pursuant to direction of this Court in the year 1986. In the suit, a preliminary decree was passed. A scheme of administration had been framed for administration of the trust estate. The scheme from time to time had been modified by this Court. Therefore, 9 considering the nature of the suit and the orders passed by this Court from time to time for implementation of the scheme for administration of estate, it appears that the argument advanced on behalf of the applicants that the administrative suit is a dead suit, is not sustainable. Furthermore, the observation of the Co-ordinate Bench in GA 31 of 2022, GA 32 of 2022 and GA 33 of 2022 that the present suit is an administrative one under the control of this Court and the Court is at liberty to allow the Trustees/sebaits to apply for the implementation of the Scheme in connection with the administration of Dakhineswar Temple & Debottar Estate since being not appealed against act as a res judicata as the said issue has already been decided by this Court. The principles of res judicata apply not only to the final judgment but also between different stages of the same litigation. A court that has decided a matter at an earlier stage will not allow the parties to re-agitate that matter at a later stage. Thus the order of Co-ordinate Bench holding that the present suit is an administrative one under the control of this Court and the Court is at liberty to allow the Trustees/sebaits to apply for the implementation of the Scheme in connection with the administration of Dakhineswar Temple & Debottar Estate cannot be re-opened since no fresh facts emerge for consideration. Indisputably, if an interlocutory order decides a controversy between the parties, it would bind the parties and operate as res judicata at all subsequent stages. This Court finds substance in the submissions of Mr. Banerjee, learned Senior Advocate appearing for the respondents relying on Jamia Masjid (supra) in this regard.
10
10. In light of the aforesaid discussion, the applications being GA 35 of 2022 and GA 41 of 2023 stand dismissed.
11. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)