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1 - 10 of 10 (0.37 seconds)Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
The Code of Civil Procedure, 1908
Chandraprasad Ramprasad vs Jinabharthi Narayanbharthi on 20 November, 1930
In the said case of Chandraprasad Ramprasad v. Jinabharthi, Clause 28 of the scheme contained provisions for making an application, for modifying or altering the scheme by any interested person. In those cases the respective scheme contained the clauses giving liberty to apply for modification of the scheme and such schemes were decreed in a properly instituted representative suit. The said suits were instituted in a representative character and there was no question of inserting a clause at such subsequent state in the scheme itself by giving liberty to apply for modification of the scheme. What was mainly decided was that on the basis of such a modification clause an application was competent and further a suit was not necessary to be instituted and if such an application was made under such a modification clause then the further consent of the Advocate-General or the Collector was not necessary. Regarding the point that any person interested in the trust has the right to be joined as a party and to apply, in my opinion, such prayer may be made only when the suit, in which the scheme was framed, was a representative suit. In my opinion, these two cases also do not support Mr. Jain's contention.
Sakharam Daji Ganpule vs Ganu Raghu Gurao on 26 August, 1920
23. The argument that such a clause giving liberty to amend the scheme would be deemed to be implied in every scheme, in my opinion, cannot hold good as otherwise there would not have been any necessity for the Supreme Court to deal with this question in such a specific way and instead the Supreme Court could have dealt with the matter generally by implying such a clause in every scheme. Mr. Jain has referred to me the case of Sakharam Daji Ganpule v. Ganu Raghu Gurao, reported in AIR 1921 Bom 297 to support his argument that such a reservation in the scheme can always be implied. The suit in that case was originally instituted in 1889 under Section 539 of the then the Code of Civil Procedure. In that case the power of the Court to modify the scheme proceeded on a concession made by the respective lawyers and that was how the following observation was made; "though no liberty to apply is reserved under the scheme, such a reservation can always be implied." At p. 300 where the said observation has been made the following passage appears:--
Raje Anandrao vs Shamrao And Others on 23 February, 1961
In the case of Raje Anandrao v. Shamrao, the Supreme Court held that such modification could be made by an application under the relevant clause of the scheme. In the case before the Supreme Court such a clause giving liberty, to apply for modification of the scheme already existed. It was not a ease where the question was whether such a clause could be inserted in the scheme at a later stage or not, as is the case before me. It is specifically made clear by their Lordships of the Supreme Court that the main question which arose before them was how far it was open to a Court to amend a scheme once framed under Section 92 of the Code of Civil Procedure, where a power to amend the scheme was reserved in the scheme itself. Accordingly, the question which has arisen before me has not been decided by the Supreme Court in that case. In deciding that case the Supreme Court has taken note of the fact that the Privy Council in several cases framed schemes by actually inserting such a clause giving liberty to any person interested to apply to the High Court for any modification of the scheme that might appear to be necessary or convenient without deciding whether such a clause could be legally inserted therein or not.
Prayaga Doss Jee Varu vs Tirumala Anandam Tillai on 8 February, 1907
Mr. Jain contends that the scheme which was settled by the Judicial Committee contained the aforesaid modification clauses which were originally not there in the previous scheme under which the temples were being managed. According to Mr. Jain the Court has always the power to insert such clauses to enable any member of the public to apply for modification of the scheme. It will appear from the facts of the said case that the suit was brought with the consent of the Advocate-General of Madras under the then Section 539 of the Code of 1882 and the relief sought was for settling the scheme for the management of the temples with such modification under the organisation of the managing authorities as might be necessary to obviate the evils referred to in the plaint and to place the administration of the temples on a satisfactory footing. It was not disputed in that case that a scheme was necessary. The question was what should be the details of the scheme. After considering the facts and circumstances of that case their Lordships of the Judicial Committee settled the said scheme. I do not see how this case can help Mr. Jain in this case.
M.I. Kadri vs Khubmiya Mahomedmiya on 20 November, 1930
8. Mr. Jain, on the other hand, contends that for the interest of the trust the Court can always entertain an application from an outsider or by any person who is not a trustee even though the scheme does not contain any such provision. It is contended following the case of M. L Kadri v. Khubmiya Mahomedmiya, reported in AIR 1931 Bom .388 that such a clause is implied.
Gangaram Govind Pashankar vs Sardar K.R. Vinchurkar on 26 August, 1946
In the case of Gangaram Govind Pashankar v. K. R. Vinchurkar, reported in AIR 1948 Bom 146 = ILR (1947) Bom 466 it is held that the High Court has inherent power to modify the scheme even though the scheme does not provide for such a clause if a proper case is made out. According to Mr. Jain the nature of the 1903 suit was such that it became a suit of a representative character. It is the substance and not the form of the suit that has to be looked into.
Manadananda Jha And Ors. vs Tarakananda Jha Panda And Ors. on 8 February, 1923
24. The next case which was cited to me by Mr. Jain is the case of Manadananda Jha v. Tarakananda Jha Panda, reported in ATR 1924 Cal 330. That was also a suit which was instituted under Section 539 of the Code of Civil Procedure of 1882 with the consent of the then Advocate-General for the removal of the high priest of the Baidyanath Temple and for the settlement of the scheme for the management of the institution. The suit was decreed, the high priest was ordered to be removed from his office and a scheme was drawn up for the management of the institution in future. Of the two appeals preferred from the said decree one was dismissed and the other was allowed. The decree of the District Judge was modified at his instance, but in the decretal order which was drawn up in this Court the precise variation was not specified. The Appeal Court proceeded to insert two clauses in the original decree in the same line as the Privy Council did in the case reported in (1907) 34 Ind App 78. The result was that liberty was given to any person who might be interested in the scheme to make an application to the proper Court. Accordingly, this case also cannot be of any help to Mr. Jain.
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