Rajasthan High Court - Jaipur
Mohan Singh vs Civil Judge(Jd) And J M Ringus And Other on 2 January, 2014
Author: Alok Sharma
Bench: Alok Sharma
S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (1) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) Date of Order : 02.01.2014 HON'BLE MR. JUSTICE ALOK SHARMA Mr. S.M. Mehta, Sr. Advocate with Dr. R.K. Sharma, for the petitioner-defendant. Mr. G.K. Garg, Sr. Advocate with Ms. Anita Agarwal, for the respondents-plaintiffs. BY THE COURT
This revision petition under Section 115 CPC impugns the order dated 09.04.2013, passed by the Civil Judge (J.D.) & Judicial Magistrate, Ringus, District Sikar, in civil suit No.38/2012 whereby an application filed by the petitioner-defendant (hereinafter 'the defendant') under Order 7 Rule 11 CPC has been dismissed.
The facts of the case are that following the death of one Rajendra Singh, President of Shri Shyam Mandir Committee Trust, disputes arose with regard to the trusteeship of the aforesaid trust. That aspect of the matter is however covered by the judgment of this Court in SBCWP No.12765/2013 decided on 09.12.2013, titled Shambhu Singh & Ors. Vs. State of Rajasthan & Ors., whereunder this Court had remitted the contesting parties to their remedy under the Rajasthan Public Trusts Act, 1959 (hereinafter 'the Act of 1959').
In the meantime on or about 18.05.2012, a suit for permanent S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (2) injunction was laid by the respondents-plaintiffs, Shambhu Singh and Bhanwar Singh (hereinafter 'the plaintiffs'), against the defendant Mohan Singh in the court of Civil Judge (J.D.) and Judicial Magistrate, Ringus, District Sikar, impleading aside of the State of Rajasthan also the Assistant Commissioner, Devasthan-II, Jaipur and five banks where the accounts of the trust were maintained. In the said suit, it was averred that it related to a dispute between the trustees and consequently in terms of Section 27 of the Rajasthan Court-Fees and Suits Valuation Act, 1961, the court fee leviable was Rs.200/- and a further sum of Rs.30/- was being paid on account of relief for injunction. In the said suit, it was alleged that the defendant Mohan Singh was wasting immovable property and also wrongly misappropriating movable property of the trust in issue. In the facts alleged, it was prayed that the defendant Mohan Singh be restrained by way of a permanent injunction under the orders of the court from dealing in any manner whatsoever with the immovable and movable property of the trust. On service of notice of the suit on the defendant Mohan Singh, an application under Order 7 Rule 11 CPC was filed praying that the plaint be rejected in view of the civil suit being barred under Section 73 of the Act of 1959. Vide impugned order dated 09.04.2013, the said application has been dismissed by the trial court. Hence this revision petition.
Mr. S.M. Mehta, Sr. Advocate with Dr. R.K. Sharma, appearing for the defendant, has drawn the attention of this Court to Section 73 of the Act of 1959 which reads as under :
Section 73 Bar of jurisdiction : Save as expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (3) dealt with by any officer or authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive.
Attention of this Court has also been drawn to Section 38 of the Act of 1959 which reads as under :(1)
Section 38 - Application for directions: If the Assistant Commissioner, on the application of any person having interest in a public trust or otherwise, is satisfied after making such inquiry as he thinks necessary that -
(a)
(b)
(c) the original object of the public trust has failed;
the trust property is not being properly managed or administered; or the direction of the Court is necessary for the administration of the public trust.
he may, after giving the working trustee an opportunity of being heard, direct such working trustee or any other trustee or person having interest, in the trust to apply to the court for directions, within such time not exceeding thirty days as may be specified by the Assistant Commissioner.
(2) If the working trustee or any other trustee or person having interest in the trust so directed fails to make an application as required, or if there is no trustee of the public trust, or if, for any other reason, the Assistant Commissioner considers it expedient to do so, he shall himself make an application to the court.
Relying upon the two aforesaid provisions, Sr. Counsel has submitted that the suit as laid purporting to be one for permanent injunction in the interest of trust properties was not maintainable. He submits that in this view of the matter, under the provisions of Order 7 Rule 11(d) CPC, the plaint ought to have been returned. The submission of Sr. Counsel was that the learned trial court has taken a very narrow and unsustainable view of the matter in holding that the prayer in the suit did not relate to the subject matter in respect of which there was any remedy provided for under the Act of 1959. It was submitted that for one in para 11 of the plaint it was admitted that the suit related to the underlying dispute with S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (4) regard to trusteeship of Shri Shyam Mandir Committee Trust Khatu Shyamji and that even the false and simulated allegation of wasting of immovable property and siphoning off movable property of the trust by the defendant could have been agitated by way of an appropriate application to the jurisdictional assistant commissioner under Section 38(1)(b) of the Act of 1959.
Mr. G.K. Garg, Sr. Advocate with Ms. Anita Agarwal, appearing for the plaintiffs however submitted that the statutory disbarment under Section 73 of the Act of 1959 qua the jurisdiction of the civil courts in matters covered by the Act of 1959 does not take into its ambit a suit for permanent injunction. Reliance has been placed upon a judgment of this Court in the case of Sita Ram Das Vs. Shri Chaturbhuj Nathji Mandir [1988 (2) WLN 548]. He submits that there is no provision under the Act of 1959 which empowers the statutory authority therein to pass an order of injunction preventing the wasting of immovable property and the siphoning off movable property of the trust. He submits that consequently the civil suit as laid was maintainable, the application under Order 7 Rule 11 CPC misdirected and rightly dismissed by the trial court under the impugned order dated 09.04.2013.
I have heard the learned Sr. Counsels for the contesting parties and perused the impugned order as also the judgment of this Court in the case of Sita Ram Das (Supra).
Section 73 of the Act of 1959 prohibits the agitating of matters qua public trusts before civil courts in respect of which provision has been made for in the Act. This Section categorically provides that where the matters in issue in respect of a public trust can be addressed under the Act of 1959, the civil courts S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (5) would have no jurisdiction. The jurisdiction of the civil courts in matters of public trust is limited by Section 73 of the Act of 1959 to specific issues and further constrained by the satisfaction of statutorily prescribed formalities. In the context of the allegation in the suit laid by the plaintiffs, reference to Section 38(1)(b) of the Act of 1959 indicates that any person having interest in a public trust can make an application to the Assistant Commissioner with regard to the trust property not being properly managed or administered. On such an application being made, the Assistant Commissioner is to conduct an inquiry after giving the working trustee an opportunity of being heard and only in the event of coming to the conclusion that the trust property as alleged in the application was not properly managed or administered, permission to approach a civil court for appropriate relief can be granted by the Assistant Commissioner. The purpose of Section 38 of the Act of 1959 is thus evidently to eschew frivolous and vexatious proceedings qua the pubilc trust and its property before civil courts and to allow appropriate proceedings to be taken before the civil courts only subsequent to an inquiry by the Assistant Commissioner, Devsthan concluding that requisite protection was necessary to be sought from the civil court. I find little force in the argument of Mr. G.K. Garg, Sr. Counsel that clause (b) of Section 38(1) of the Act of 1959 does not take into its ambit issues of wasting of immovable property or siphoning off movable property of the public trust. In my considered opinion, an expansive construction of clause (b) of Section 38(1) of the Act of 1959 is warranted to take into its ambit issues of property of the trust, immovable or movable being utilised for the purpose other than for the objects of the trust as such issues evidently relate to the management and administration of trust property. A narrow view would S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (6) denude both Sections 38 and 73 of the Act of 1959 of their efficacy and be at odds with the object of the Act of 1959 to limit intervention of civil courts only to matters specifically provided for, the stage and the procedure prescribed before intervention by civil court in matters of public trust. The judgment in the case of Sita Ram Das (Supra) relied upon by Mr. Garg, Sr. Counsel has not taken into consideration the provision of Section 38 of the Act of 1959 and therefore for the purpose of the case before this Court is of little relevance. Consequently, in my considered opinion even on the say of the plaintiffs in their plaint, their aggrievement (cause of action) based on the alleged wasting of immovable property and siphoning off movable property of the trust was addressable by resort to a proper application under Section 38(1) of the Act of 1959. Consequently, the disbarment of the civil court's jurisdiction under Section 73 of the Act of 1959 becomes operative inasmuch as it provides that no civil court shall have jurisdiction to decide or deal with any question which is by or under this act to be decided or dealt with by any officer or authority under this Act. It is my firm view that the suit for permanent injunction as laid by the plaintiffs without resort to Section 38 of the Act of 1959 and without the permission granted by the Assistant Commissioner, Devsthan for the purpose, was barred under Section 73 of the Act of 1959. As such the application under Order 7 Rule 11 CPC filed by the defendant ought to have been allowed by the trial court. In dismissing the said application the learned trial court has palpably failed to exercise jurisdiction vested in it. I would thus allow this revision petition, quash and set aside the order dated 09.04.2013, passed by the trial court and direct that the plaint be returned to the plaintiffs.
S.B. CIVIL REVISION PETITION NO.66/2013 (Mohan Singh Vs. Civil Judge (JD) & Judicial Magistrate, Ringus, District Sikar & Ors.) (7) It is however made clear that the plaintiffs would be free to exercise their right under Section 38(1)(b) of the Act of 1959 and move an application thereunder within a period of ten days from the receipt of a certified copy of this order ventilating their grievances with regard to the alleged wasting of immovable property and siphoning off movable property of the trust by the defendant Mohan Singh and seek permission to approach a civil court for appropriate relief. It is made clear that on such an application being filed, the jurisdictional Assistant Commissioner, Devsthan shall conduct and complete an inquiry thereupon within a period of four weeks of the receipt of the application. The result of the inquiry will determine the rights of the plaintiffs to approach the civil court.
The petition is allowed with the aforesaid observations. Stay application needs no address in view of the petition being allowed.
(ALOK SHARMA), J MS/ All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.