Civil Revision No.2600 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Civil Revision No.2600 of 2008
Date of decision: 21.11.2008
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Jasbir Singh and another
…. Petitioners
Vs.
Guru Nanak Public School Trust and others
…. Respondents
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CORAM: HON’BLE MR.JUSTICE JASWANT SINGH
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Present: Mr.O.P. Goyal, Sr.Advocate with
Mr.Hari Pal Verma, Advocate and
Mr. Ashok Kumar, Advocate
for the petitioners.
Mr.Sumit Mahajan,Sr.Advocate with
Mr.Sham Lal Bhalla, Advocate,
Mr.K.S. Bhangu, Advocate and
Mr. Amandeep Singh, Advocate
for the caveator-respondent No.1.
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JASWANT SINGH.J
The present petition under Article 227 of the Constitution of
India has been filed by the petitioners, challenging the orders dated 29.2.2008
(Annexure P-19) and 6.12.2007 (Annexure P-15), passed by the learned Civil
Judge (Senior Division), Ludhiana vide which (i) applications filed by the
petitioners (Jasbir Singh and Surinder Singh sons of Jagat Singh) as well as
defendant No.3-Kulwant Kaur Virdi, under Order 7 Rule 11 of Civil
Procedure Code (in short “CPC”) for rejection of plaint has been dismissed;
(ii) application filed by Avtar Singh Hunjan under Order 22 Rule 10 of CPC
Civil Revision No.2600 of 2008 -2-
for substitution/to pursue the suit on behalf of the plaintiff-Trust has been
allowed; (iii) application filed by present respondents No. 2 and 3 (Prem
Singh and Ravinder Singh Sokhi) under Order 22 Rule 10 of CPC for
substitution as defendants has been allowed; (iv) alternative prayer made in
the application for rejection of plaint filed by the present petitioners (Jasbir
Singh and Surinder Singh sons of Jagat Singh) for substitution in place of
S.Jagat Singh and Giani Bhagat Singh as defendants has been allowed to the
extent of impleadment of present petitioners as defendants, without ordering
impleadment of Sh. Rajwinderjit Singh Gill as defendant in place of Kulwant
Kaur Virdi.
The brief facts of the case giving rise to the matter in
controversy are that present respondent No.1 – Plaintiff -Guru Nanak Public
School Trust, Sarabha Nagar, Ludhiana (hereinafter referred to as “the
Trust”) filed Civil Suit dated 21.2.2000 through Sh. Ranjit Singh Bhail in the
court of learned Civil Judge(Senior Division), Ludhiana for rendition of
accounts and permanent injunction restraining defendants No.1 and 2-S.Jagat
Singh and Giani Bhagat Singh from posing themselves as Secretary and
Member of Local Managing Committee of the School being run by the Trust
and further restraining defendant No.3- Mrs. Kulwant Kaur Virdi from
posing and working as Principal of Guru Nanak Public School”, Sarabha
Nagar, Ludhiana (hereinafter referred to as “School”) by alleging that Ranjit
Singh Bhail, Non Resident Indians (NRI) created a trust on 20.12.1969 for
higher and quality education to the Punjabies settled in country and abroad
on the basis of philosophy of guru and his teachings. In the Trust apart from
himself being the settler, Sh. Ranjit Singh Bhail nominated 11 other persons
as trustees. The Trust was registered on 25.2.1970 against Wasika No.462
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with Sub-Registrar, Ludhiana. It is further alleged that a sum of
Rs.1,35,628.50 ps,. was deposited on 8.9.1970 and thereafter a sum of
Rs.2,70,256.50 ps, alongwith further interest was deposited and a sale deed
dated 13.6.1973 for the land measuring 30.28.22 sq.yards situated at Kartar
Singh Sarabha Nagar, Ludhiana was executed in favour of the Trust by
Improvement Trust, Ludhiana. School is being run on that very land. It is
further alleged that Sh. Ranjit Singh Bhail had contributed lot of money from
his own pocket as he was fully devoted towards the aims and objectives of
the Trust. Later on due to death of some trustees, constitution of the Trust
was amended and re-registered on 7.6.1973 against Wasika No.2096 with
Sub-Registrar, Ludhiana but the basic body of the Trust remained the same.
Once again Trust was re-registered due to some changes on 25.10.1983
against Wasika No.8921 with Sub Registrar, Ludhiana. It is further alleged
in the Civil Suit that for effective running of the institution / School founded
by the Trust, a managing committee was formed in which Jagat Singh-
defendant No.1 was nominated one of the members. Sh. Ranjit Singh Bhail
was Secretary of the Trust. On 25.10.1983, managing committee was re-
constituted and Jagat Singh became Secretary of the managing committee for
a term of 5 years. It is further alleged that Jagat Singh – defendant No.1
alongwith Giani Bhagat Singh – defendant No.2 and in collusion with
Mrs.Kulwant Kaur Virdi – defendant No.3 took complete control of the
management of the school ignoring the other members of the committee.
Sh.Ranjit Singh Bhail, who was the Secretary of the Trust remained abroad
being a NRI and presumed that the affairs of the Trust are being run in a
proper way by the Managing Committee. But to deceive the Trust, Jagat
Singh – defendant No.1 in collusion with other defendants, got the committee
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registered with the Registrar of Societies, Punjab with a motive to defy/cheat
the Trust. Keeping in view the facts discussed above, it was resolved on
22.11.1999 that Sh.Ranjit Singh Bhail, General Secretary of the Trust should
take over the charge of the school and scrutinizes the accounts of the Trust.
It was also decided to appoint Mr.Rajinderjeet Singh Gill, Vice Principal as
acting Principal in place of defendant No.3. The resolution of the Trust was
sent to the Punjab and Sindh Bank also vide letter dated 3.12.1999 to replace
the signatories. It is alleged that defendant No.1 and 2 in defiance of
resolution of the Trust are proclaiming to be members of the managing
committee and showing the authority of the Trust, both being influential
persons and not allowing the secretary of the plaintiff-Trust, to take control
of the record and the premises of the school. Defendant No.3 was duly
informed vide letter dated 1.2.2000 regarding termination of her services, but
despite that she has not vacated the office of the Principal. It is further
alleged that defendants are admitting new students in the school and
collecting huge donation in cash and usurping the amount for their personal
use and have started collecting fee, donation, funds on behalf of the plaintiff-
Trust and in this way the academic structure of the school is going to have a
serious impact due to illegal activities of the defendants. In these
circumstances, civil suit was filed.
Thereafter an application dated 28.2.2000 (Annexure P-2) under
Order 7 Rule 11 of CPC for rejection of plaint was filed by the defendants.
Written statement to the Civil Suit was filed by the defendants claiming
themselves to be the ‘managing committee’. When the suit was pending,
unfortunately Sh. Ranjit Singh Bhail died on 5.10.2000. Giani Bhagat Singh
– defendant No.2 died on 11.8.2003. However, it is alleged by the present
Civil Revision No.2600 of 2008 -5-
petitioners that after the death of Giani Bhagat Singh-defendant No.2,
Sh.Jagat Singh-defendant No.1 was appointed as President and Sh.Jasbir
Singh son of Jagat Singh was appointed as Secretary in place of Jagat Singh
by the managing committee vide resolution dated 22.8.2003.
Thereafter, Jagat Singh-defendant No.1 also expired on
12.3.2004 and it is further alleged by the present petitioners that vide
resolution dated 15.3.2004 Jasbir Singh son of Jagat Singh was appointed as
President of the managing committee and Mrs. Kulwant Kaur Virdi
superannuated on 10.1.2002 and in her place vide resolution dated 15.3.2004
Sh.Rajenderjit Singh Gill was appointed as Principal of the school by the
managing committee.
Thereafter defendant No.3-Kulwant Kaur Virdi filed an
application dated 7.12.2004 (Annexure P-3) under Order 7 Rule 11 of CPC
for rejection of the plaint on the ground that plaintiff as well as defendant
No.1 and 2 in the original suit have died. Reply to the application dated
7.12.2004 (Annexure P-3) was filed by plaintiff on 14.2.2005 (Annexure P-
3/A) and it was specifically submitted that new defendants stand substituted
in place of Giani Bhagat Singh and Jagat Singh.
Thereafter an application dated 3rd of January, 2005 (Annexure
P-4) was filed by the present petitioners-Jasbir Singh and Surinder Singh for
dismissal of the suit/rejection of the plaint or in the alternative to substitute
their name in place of Jagat Singh and Giani Bhagat Singh as defendants
No.1 and 2 as under: –
(i) Surinder Singh Secretary
(ii) Jasbir Singh President
Civil Revision No.2600 of 2008 -6-
And in place of Kulwant Kaur Virdi, name of Rajinderjit Singh
Gill may be replaced as Principal, as she has already retired on 10.1.2002.
It appears that one Prem Singh and Harminder Singh claiming
themselves to be President and Secretary respectively also moved an
application dated 16.11.2004 (Annexure P-5) under order 22 Rule 10 CPC
for substitution of their name in place of Giani Bhagat Singh – defendant
No.2 and Jagat Singh – defendant No.1 respectively. The said application
was sought to be withdrawn by way of subsequent application dated
5.10.2005 (Annexure P-6).
Thereafter reply dated 22.2.2005/22.5.2005 (Annexure P-7) was
filed by plaintiff-respondent No.1 to the application dated 3.1.2005
(Annexure P-4) filed by petitioners and it was specifically submitted that in
the meeting of the Trust held on 8.7.2004 Sh. Avtar Singh Hunjan was
appointed as trustee and was authorized to represent the Trust in the pending
court cases and he appeared in this case also and filed power of attorney. It
was further submitted that list of members was filed in the court and as per
that list the names of Jasbir Singh and Surinder Singh, present petitioners
were not there. It was further submitted that ‘Guru Nanak Public School
Trust’ is the plaintiff and the Trust is being represented through Avtar Singh
Hunjan, trustee and there is no confusion. It was further submitted that so far
as defendants are concerned, there are now two sets of persons who are now
claiming substitution as office bearers of the alleged Society registered with
the Registrar of the Societies, Punjab. Similarly another reply dated nil was
filed by one Prem Singh and Surinder Singh Sokhi claiming themselves to be
President and Secretary of the managing committee and that is appended as
Annexure P-8 and they submitted that the suit was filed by Sh.Guru Nanak
Civil Revision No.2600 of 2008 -7-
Public School Trust through Sh.Ranjit Singh Bhail and although Sh.Bhail has
died but the Trust which is a party to the suit stood as never died and Avatar
Singh Hunjan who is a trustee is pursuing the case.
Thereafter another application dated nil under Order 22 Rule 10
of the CPC was filed by present respondent No.3 – Ravinder Singh Sokhi
(Annexure P-9) for substitution/impleading S.Prem Singh and S.Ravinder
Singh Sokhi as defendants No.1 and 2 as both of them have been elected as
President and Secretary respectively, in the meeting of the Society held on
19.10.2005. Reply to the above application dated nil was filed on 3.12.2005
(Annexure P-10) by the present petitioners – Jasbir Singh and Surinder Singh
and controverted the contents of the application. They have further
submitted that managing committee is being managed and controlled by
Sh.Jasbir Singh as President and Surinder Singh as Secretary alongwith other
office bearers and it was further submitted that neither Prem Singh nor
Ravinder Singh Sokhi or Harmohinder Singh are the members of the
committee and therefore, Prem Singh and Ravinder Singh Sokhi are not
entitled to be impleaded as defendants No.1 and 2.
Thereafter another application dated 10.5.2006 was filed
(Annexure P-11) under Order 22 Rule 10 read with Section 151 of CPC by
the plaintiff with a prayer that Avtar Singh Hunjan may be allowed to
continue with the suit and pursue the same on behalf of the plaintiff-Trust on
the ground that Sh.Ranjit Singh Bhail has since died and vide resolution
dated 8.7.2004 of the Trust he has been authorized to represent the court
cases on behalf of the Trust. Reply to the above said application was filed by
the present petitioners – Jasbir Singh and Surinder Singh on 16.5.2006
(Annexure P-12) and denied the averments made in the application and inter-
Civil Revision No.2600 of 2008 -8-
alia submitted in Preliminary Objection No.2 that Ranjit Singh Bhail had died
in the year 2000 and the present application is filed on 10.5.2006, therefore,
the same is hopelessly time barred and should be dismissed as every
application has to be brought within a period of three years. In para 3 of the
Preliminary Objections it was submitted that Avtar Singh Hunjan is neither
the trustee nor he has any right on behalf of the plaintiff to come on record,
neither any copy of the alleged resolution dated 8.7.2004 has been placed on
record.
Thereafter another application dated 30.5.2006 (Annexure P-13)
was filed by the petitioner(s) with a prayer to jointly decide all the pending
applications before the learned trial court. Reply to the above said
application dated 30.5.2006 was filed by the plaintiff – respondent No.1
(Annexure P-14) and it was specifically submitted in reply to para no.1 that
Avtar Singh Hunjan is the President and Surinder Singh Sokhi is the
Secretary and it was further submitted that two applications are pending and
it is yet to be decided by the learned trial court as to who is actual and factual
successor of Jagat Singh and Bhagat Singh – Secretary and President of the
local managing committee of the school.
Vide order dated 6.12.2007 (Annexure P-15) learned trial court
allowed the alternative prayer made by the present petitioners in their
application dated 3.1.2005 (Annexure P-4) to the extent that Jasbir Singh and
Surinder Singh were ordered to be substituted in place of defendant No.1 and
further allowed application dated nil (Annexure P-9) for
impleadment/substitution of Prem Singh and Ravinder Singh Sokhi in place
of defendants No.1 and 2. Operative part of the order is reproduced here as
under:
Civil Revision No.2600 of 2008 -9-
“Learned counsel for the plaintiff has moved an
application that he has no objection if name of Jasbir
Singh, Surinder Singh, both sons of Jagat Singh are
substituted in place of defendant No.1 and they are made
to contest the present suit. He has no objection if in place
of defendants No.1 and 2 Ravinder Singh Sokhi and Prem
Singh are allowed to contest the suit. In view of the no
objection of the counsel for the plaintiff, the names of
these persons are substituted on record. Let amended
plaint, impleading their names be filed for 11.12.2007
and consideration be also heard on the application.”
The net affect, after the passing of the order is that in place of
original three defendants namely Jagat Singh (who died on 12.3.2004),
Bhagat Singh (who died on 11.8.2003) and Kulwant Kaur Virdi (who
superannuated on 10.1.2002), now four persons namely Jasbir Singh,
Surinder Singh sons of Jagat Singh; and Prem Singh and Ravinder Singh
Sokhi were ordered to be substituted as defendants in the aforesaid suit.
Thereafter another application dated 19.1.2008 (Annexure P-16)
under section 151 of CPC for review of the order dated 6.12.2007 (Annexure
P-15) was filed by the present petitioners – Jasbir Singh and Surinder Singh.
The plaintiff filed their reply dated 9.2.2008 (Annexure P-16/A) to the above
mentioned application dated 19.1.2008 (Annexure P-16) and it was
specifically mentioned in reply to para 2 of the application that the counsel of
the plaintiff suffered a statement that he has no objection for impleading
Jasbir Singh and Surinder Singh both sons of Jagat Singh in place of
defendants No.1 and he has no objection if Ravinder Singh Sokhi and Prem
Civil Revision No.2600 of 2008 – 10 –Singh are allowed to contest the present suit. Names of the persons have
been substituted in the present suit and the amended plaint has already been
filed.
Thereafter vide impugned order dated 29.2.2008 (annexure P-
19) learned trial court has disposed of the application dated 7.12.2004
(annexure P-3) filed by Kulwant Kaur Virdi – original defendant No.3 and
application dated 3.1.2005 (Annexure P-4) filed by petitioners under Order 7
Rule 11 for rejection of plaint; application dated nil (Annexure P-9) filed by
respondents herein No.2 and 3 and application dated 10.5.2006 (Annexure P-
11) filed by Avtar Singh Hunjan under Order 22 Rule 10 for substitution; and
has held that Guru Nanak Public School Trust is a registered Trust and
juristic person in the eyes of law and suit filed by it cannot abate and
application under Order 22 Rule 10 of CPC to pursue the suit on behalf of the
plaintiff has been allowed and further the application of defendants for
dismissal of the suit ahs been dismissed. It has further been ordered that
there is no limitation for making an application for bringing on record LR
under Order 22 Rule 3 of the CPC as amended by Punjab and Haryana High
Court and application under Order 7 Rule 11 for rejection of the plaint filed
by the petitioners/defendants is also dismissed and operative part of the order
is reproduced below:
“Para 13: After going through the submissions
advanced by both the learned counsel for the parties, if
the documents on the record are seen there is a Trust
Deed dated 25.2.1970 produced by the plaintiff on the
record which is registered vide Wasika No.462 vahi No.4,
Zild No.13 Pana No.281 on 25.2.1970. Learned counsel
Civil Revision No.2600 of 2008 – 11 –for the plaintiff has further produced on record another
Trust Deed bearing Wasika No.462 Vahi No.4, Zild No.13
Pana No.281 wherein the rules and regulations are
observed by the trustees are recorded. This Trust Deed is
also registered Trust Deed. There is another copy of trust
deed of Guru Nanak Public School Trust which has also
been registered on 7.6.1973 wherein also rules and
regulations of the trust are there. Another copy of the
trust i.e. Guru Nanak Public School Trust have been put
by the plaintiff on the record which is dated 25.10.1983
regarding rules and regulations, Trust working of the
trustees on the record. Learned counsel for the plaintiff
has also put on record the sale deed in favour of the Guru
Nanak Public School which is registered on 7.6.1973. As
such the learned counsel for the plaintiff has argued that
since the Trust is registered Trust it is juristic person. A
simple suit for injunction on the death of the defendant or
the plaintiff the suit can not abate. The plaintiff has
further filed the suit for rendition of accounts and the
same can be maintained in view of the fact that Guru
Nanak Public School is registered Trust and juristic
person in the eyes of law. Learned counsel for the
defendant denies this fact. However the fact remains that
Guru Nanak Public School Trust is registered person and
juristic person in the yes of law. The suit filed by it
cannot abate. As such the application under Order 22
Civil Revision No.2600 of 2008 – 12 –Rule 10 of CPC read with Section 151 of CPC cannot be
dismissed and the same is also allowed. As such the
application of the answering defendants for dismissal of
the suit as Ranjit Singh Bhail has expired is also not
maintainable and the same is hereby dismissed. In view
of the fact that the present Trust is a registered Trust in
the eyes of law. In view of the authority Kali Ram vs.
Mangat Ram 2001 (2) Civil Court Cases 241 (P&H)
2001(2) Civil Court Cases 241 (P&H) cited by the
learned counsel for the plaintiff that there is no limitation
for making an application for impleading LRs after
amendment in Order XXII Rule 3 of Punjab and Haryana
High Court – The lis of the parties should not fail on the
technicalities and procedural wrangles. The objection of
the defendant that the application of the plaintiff for
bringing legal heir is also time barred is not
maintainable. Since the suit filed by Trust for rendition of
account. I am of the view that the application for
rejection of the plaint filed by the defendant cannot also
succeed and the same is hereby dismissed.”
Hence the present petition under Article 227 of the Constitution
of India has been filed by the petitioners challenging the orders dated
6.12.2007 (Annexure P15) and order dated 29.2.2008 (Annexure P19) passed
by the learned Civil Judge (Senior Division), Ludhiana.
I have heard counsel for the parties and perused the record
carefully.
Civil Revision No.2600 of 2008 – 13 –
Counsel for the respondent No.1-Trust-plaintiff at the very
outset states that he has no objection if Sh. Rajinderjit Singh Gill is
substituted/impleaded as the fifth defendant in place of Mrs. Kulwant Kaur
Virdhi.
In the present case two issues/points are involved for
adjudication: i) Whether keeping in view the provisions of order 7 Rule 11 of
CPC, the plaint (Annexure P-1) is liable to be rejected or not; ii) Whether
substitution / impleadment of the respondents No.2 & 3 as defendants and
Mr.Avtar Singh Hunjan, trustee to maintain the suit on behalf of plaintiff-
respondent No.1 is justified or not?
1. That so far as point No.1 is concerned, it is necessary to
reproduce the Order 7 Rule 11 [ relevant clauses (a) to (d)] of the CPC which
read as under:
“11. Rejection of plaint – The plaint shall be rejected in the
following cases: –
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under-valued, and the
plaintiff, on being required by the Court to so correct
the valuation within a time to be fixed by the court,
fails to do so;
(c) Where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the court, fails to do so;
Civil Revision No.2600 of 2008 – 14 –
(d) Where the suit appears from the statement in the plaint
to be barred by the law.”
So far as legal position regarding deciding an application for
rejection of the plaint under Order 7 Rule 11 is concerned, it is well settled
that only averments made in the plaint are to be looked into and the pleas
taken by the defendants in the written statement would be wholly irrelevant
and reference is made in this regard to Hon’ble Supreme Court decision
rendered in ” Popat and Kotecha Property versus State Bank of India Staff
Association” 2005(7) S.C.C. 510 and relevant paras 14 to 20 are as
under:
“14. In Saleem Bhai v. State of Maharashtra it was
held with reference to Order 7 Rule 11 of the Code
that the relevant facts which need to be looked into
for deciding an application thereunder are the
averments in the plaint. The trial court can exercise
the power at any stage of the suit – before
registering the plaint or after issuing summons to
the defendant at any time before the conclusion of
the trial. For the purposes of deciding an
application under clauses (a) and (d) of Order 7
Rule 11 of the Code, the averments in the plaint are
the germane; the please taken by the defendant in
the written statement would be wholly irrelevant at
that stage.15. In I.T.C. Ltd v. Debts Recovery Appellate Tribunal
it was held that the basis question to be decide while
dealing with an application filed under Order 7
Rule 11 of the Code is whether a real cause of
action has been set out in the plaint or something
purely illusory has been stated with a view to get
out of Order 7 Rule 11 of the Code.Civil Revision No.2600 of 2008 – 15 –
16 The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of
not disclosing a clear right to sue, it should exercise
the power under Order 7 Rule 11 of the Code taking
care to see that the ground mentioned therein is
fulfilled. If clever drafting has created the illusion
of a cause of action, it has to be nipped in the bud at
the first hearing by examining the party searchingly
under Order 10 of the Code. (See T. Arivandandam
v. T.V. Satyapal)17. It is trite law that not any particular plead has to be
considered, and the whole plaint has to be read. As
was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill only a part of the plaint
cannot be rejected and if no cause of action is
disclosed, the plaint as a whole must be rejected.18. In Raptakos Brett & Co. Ltd. v. Ganesh Property it
was observed that the averments in the plaint as a
whole have to be seen to find out whether clause (d)
of Rule 11 of Order 7 was applicable.19. There cannot be any compartmentalization, dissection, segregation an inversions of thelanguage of various paragraphs in the plaint. If
such a course is adopted it would run counter to the
cardinal cannon of interpretation according to
which a pleading has to be read as a whole to
ascertain its true import. It is not permissible to
cull out a sentence or a passage and to read it out of
the context in isolation. Although it is the substance
and not merely the form that has to be looked into,
the pleading has to be construed as it stands without
addition or subtraction of words or change of its
apparent grammatical sense. The intention of the
Civil Revision No.2600 of 2008 – 16 –party concerned is to be gathered primarily from
the tenor and terms of his pleadings taken as a
whole. At the same time it should be borne in mind
that no pedantic approach should be adopted to
defeat justice on hair-splitting technicalities.20. Keeping in view the aforesaid principles the reliefs
sought for in the suit as quoted supra have to be
considered. The real object of Order 7 Rule 11 of
the Code is a tool in the hands of the courts by
resorting to which and by searching examination of
the party in case the court is prima facie of the view
that the suit is an abuse of the process of the court
in the sense that it is a bogus and irresponsible
litigation, the jurisdiction under Order 7 Rule 11 of
the Code can be exercised.”The plea of the petitioners that suit for permanent injunction and
rendition of account was filed on 21.2.2000 by respondents No.1 -Trust
through Sh. Ranjit Singh Bhail, one of the trustee and as per Trust, in the
plaint there are 12 trustees and there is no reference given in the plaint as to
how many trustees are alive or dead, further plea that the resolution has not
been passed by the majority and wrong translation of clause 4 of the Trust
Deed is appended are not tenable for the purpose of deciding an application
under Order 7 Rule 11 of the CPC. These are debatable issues and disputed
question of facts which can only be decided by the learned Trial Court after
leading evidence by both parties and hearing their arguments but the plaint
cannot be rejected at the threshold on this count as only contents of plaint are
to be seen, further plea raised is that an application dated 28.2.2000
(Annexure P-2) filed by Late Sh.Jagat Singh and Late Sh. Bhagat Singh
(original defendants) is pending and neither any reply has been filed nor the
Civil Revision No.2600 of 2008 – 17 –application has been decided by learned Trial Court. This plea is also not
tenable and is liable to be rejected due to the reason that similar applications
dated 7.12.2004 (Annexure P-3) filed by defendant No.3-Mrs.Kulwant Kaur
Virdhi and dated 3.1.2005 (Annexure P-4) filed by present petitioners have
been dismissed by learned Trial Court vide impugned order dated 29.2.2008
(Annexure P-19) and third application i.e. Annexure P-2 will not make any
difference as, it is already concluded above that for deciding the application
under Order 7 Rule 11, it is the contents/averments of the plaint which are to
be seen and no pleas of the defendants can be taken into consideration.
Meaning thereby, had there been more than 3 applications under Order 7
Rule 11 of the CPC that would not make any difference for rejection of the
plaint by the learned Trial Court, because the contents of the plaint will
remain the same and those will not be varied/changed on the
increasing/successive number of applications filed by the defendants.
Moreover, the, application dated 28.2.2000 (Annexure P-2) was filed by
original defendants No.1 & 2, who are already dead and present petitioners
are not claiming themselves to be impleaded their LRs under Order 22 Rule 4
of the CPC, rather they are claiming their substitution under Order 22 Rule
10 of the CPC, therefore, on that count also they are not entitled to press the
application (Annexure P-2). Even otherwise, their own application under
Order 7 Rule 11 of the CPC already stands rejected and merely that a similar
application Annexure P-2 is pending is not a ground to interfere with
impugned order Annexure P-19.
Further plea raised is that Trust is not a legal entity and learned
Trial Court has wrongly held that Trust is a legal entity and reference in this
regard has been made to “Mandir Jamuna Dass Jawaharlal S. Sanatam
Civil Revision No.2600 of 2008 – 18 –Dharam Mahabir Dal Trust Vs. Shankar Dass” 2003(1) RCR (Rent) 582,
“Shri Duli Chand vs. M/s Mahabir Pershad Trilok Chand Charitable Trust
through its Secretary, Sh. Tara Chand Jain” 1984(1) RCR (Rent) 422,
“Atmaram Ranchhodhai vs. Gulamhusein Mohiyaddin and another” AIR
1973 Gujarat 113 (FB), “Baijnath Ram and others vs. Mt.Tunkowati
Kuer and others” AIR 1962 Patna 285 (FB). The plea of the petitioners is
not legally sustainable for deciding an application under Order 7 Rule 11 of
the CPC. The question whether the present Trust is a legal entity or not is a
mixed question of facts and law and is a debatable issue and same is to be
decided after considering the rival contention as well as evidence of both the
parties and at this stage the plaint cannot be rejected by recording a finding
that present Trust is not a legal entity.
Further plea raised by the petitioners is that plaint was liable to
be rejected due to the reason that there was non compliance of Section 92 of
CPC. This contention is not acceptable in view of law laid down in “Ram
Pal Kanwal and others vs. Sweatamber Sthanic Jain Sabha, Faridkot
(Regd.) and others” 1987(2) PLR 621, relevant para No.22 read as under:
“22. Coming to his second contention, Mr.Anand
Swaroop, learned counsel for the appellants has
vehemently asserted that even if the suit property was
proved to be endowed property, the suit for possession as
property was proved to be endowed property, the suit for
possession as titled by the plaintiff-respondent in the
present from was not maintainable and at the most it
could have resorted to proceedings under Section 92 of
the Code of Civil Procedure. There is no difficulty in
Civil Revision No.2600 of 2008 – 19 –repelling this contention of the learned counsel. It has
been settled by now that such a suit is always
maintainable on behalf of the idol, endowment or trust
etc. without resorting to proceedings under Section 92 of
the Code of Civil Procedure. As a result of the
authorities reported as Desu v. Jawala, Rangasami
Naidu v. Krishnaswami Aiyar, Ettiyat Ahmed Kutty vs.
Vayalihath Ayithraman Kutty, Shadi Ram vs. Ram
Kishen and others and Bishwanath v. Sri Thakur Kadha
Ballahji, to maintain a suit of this type, the rights of
worshippers and followers of a particular religion have
been upheld as under in Shadi Ram’s case (supra):-
“The worshippers who are the beneficiaries
entitled to participate in the benefits of the
institution, are entitled to maintain a suit for
preserving the trust property or restoring the
property to the trust either by instituting a suit for
declaration or for an injunction or even for
possession: but whether the worshippers are
entitled to claim all or any of the reliefs which a
trustee is entitled to do in a properly framed suit
and where he is made a party, it is open to the
Court to mould the relief as the circumstances of
each case. It is desirable and necessary to make
the trustee a party to mould the relief as the
circumstances may require. If the suit is one
Civil Revision No.2600 of 2008 – 20 –brought for possession by the worshippers, the
court can, after declaring the property to be trust
property and setting aside the alienation, direct
delivery of possession to the trustee
Consequently, the second contention of the learned
counsel is also repelled being without any merit.”
(emphasis supplied)
In view of this judgment, suit is always maintainable without
resorting to proceeding under Section 92 of CPC. The main purpose of
Section 92 is to give protection to public trust from being subjected to
harassment by the suit filed against it. Section 92 CPC is not applicable when
suit is instituted by the Trust against a third party. The condition precedent to
invoke the provisions of Section 92 of the CPC is that there should be a
breach of Trust and direction is sought from the civil court for its
administration; but in the present case there is no allegation of breach of the
trust. The dispute is related to the school appertaining to the Trust and a relief
is claimed by the plaintiff-Trust for rendition of accounts of the school and
prayer clause of the suit is reproduced here as under:-
” It is therefore prayed that a decree for permanent
injunction restraining defendant No.1 and 2 from posing
as secretary and member of Local managing committee of
Guru Nanak Public School Trust, respectively and
restraining defendant No.3 from posing and working as
Principal of Guru Nanak Public School Sarabha Nagar
Ludhiana being run by the plaintiff Trust and further
Civil Revision No.2600 of 2008 – 21 –restraining the defendants from accepting any donation,
fee and or any amount from any person on behalf of the
plaintiff trust and its managing committee or the schools
run by the plaintiff trust by the name of Guru Nanak
Public Schools and further restraining the defendants
from operating or dealing in any manner ay bank
accounts opened under the name of Guru Nanak Public
School Trust managing committee, schools or by any
other name in which amounts collected on behalf of the
plaintiff trust or its further managing bodies or schools
and further restraining the defendants from interfering in
the management of the school functioning under the trust
and a decree for mandatory injunction directing the
defendants to handover the records of the schools being
run under the plaintiff trust and the records relating to
the Trust and its managing committee and a decree for
rendition of accounts directing the defendants to render
the accounts in regularization to the funds collected and
spent on behalf of the trust and the school functioning
under the trust, may kindly be passed in favour of the
plaintiff and against the defendants with costs”
(emphasis supplied)
The Hon’ble Supreme Court in the case of “Mahant Pragdasji
Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai and others”
reported as AIR 1952 SC, 143 in para No.10 laid down as under:-
Civil Revision No.2600 of 2008 – 22 –“10. A suit under Section 92 of the Civil Procedure
Code is a suit of a special nature which presupposes the
existence of a public trust of a religious or charitable
character. Such suit can proceed only on the allegation
that there is a breach of such trust or that directions from
the court are necessary for the administration thereof,
and it must pray for one or other of the reliefs that are
specifically mentioned in the section. It is only when
these conditions are fulfilled that the suit has got to be
brought in conformity with the provision of Section 92 of
the Civil Procedure Code. As was observed by the Privy
Counsel in Abdur Rahim v. Barkat Ali a suit for a
declaration that certain property appertains to a religious
trust may lie under the general law but is outside the
scope of Section 92 Civil Procedure Code. In the case
before us, the prayers made in the plaint are undoubtedly
appropriate to the terms of Section 92 and the suit
proceeded on the footing that the defendant, who was
alleged to be the trustee in respect of a public trust, was
guilty of breach of trust. The defendant denied the
existence of the trust and denied further that he was guilty
of misconduct or breach of trust. The denial could not
certainly oust the jurisdiction of the court, but when the
courts found concurrently, on the evidence adduced by
the parties, that the allegations of breach of trust were
not made out, and as it was not the case of the plaintiffs,
Civil Revision No.2600 of 2008 – 23 –that any direction of the court was necessary for proper
administration of the trust, the very foundation of a suit
under Section 92 of the Civil Procedure Code became
wanting and the plaintiffs had absolutely no cause of
action for the suit they instituted. In these circumstances,
the finding of the High Court about the existence of a
public trust was wholly inconsequential and as it was
unconnected with the ground upon which the case was
actually disposed of, it could not be made a part of the
decree or the final order in the shape of a declaratory
relief in favour of the plaintiffs. It has been argued by the
learned counsel for the respondents that even if the
plaintiffs failed to prove the other allegations made in the
plaint, they did succeed in proving that the plaintiffs
failed to prove the other allegations made in the plaint,
they did succeed in proving that the properties were
public an charitable trust properties – a fact which the
defendant denied. In these circumstances, there was
nothing wrong for the court to give the plaintiffs a lesser
relief than what they actually claimed. The reply to this
is, that in a suit framed under Section 92 of the Civil
Procedure Code the only reliefs which the plaintiff can
claim and the court can grant are those enumerated
specifically in the different clauses of the section. A relief
praying for a declaration that the properties in suit trust
properties does not come under any of these clauses.
Civil Revision No.2600 of 2008 – 24 –When the defendant denies the existence of a trust, a
declaration that the trust clauses. When the defendant
denies the existence of a trust, a declaration that the trust
does not exist might be made as ancillary to the main
relief claimed under the Section if the plaintiff is held
entitled to it; but when the case of the plaintiff fails for
want of a cause of action, there is no warrant for giving
him a declaratory relief under the provision of Section 92
of the Civil Procedure Code. The finding as to the
existence of a public trust in such circumstances would be
no more than an abiter dictum and cannot constitute the
final decision in the suit. The result is that in our opinion
the decision of the High Court should stand, but the
decree ad the concluding portion of the judgment passed
by the trial court and affirmed by the High Court on
appeal shall direct a dismissal of the plaintiff’s suit
merely without its being made subject to any declaration
as to the character of the properties. To this extent the
appeal is allowed and the final decree modified. The
order for costs made by the courts below will stand. Each
party will bear his own costs in this appeal.”
And Hon’ble Supreme Court in subsequent judgment reported as
“Harendra Nath Bhattachrya and others vs. Kaliram Das (dead) by
his heirs and LRs. and others” AIR 1972 (1)SCC 115 in relevant
para 13 laid down as under:
Civil Revision No.2600 of 2008 – 25 –
“13. The High Court analyzed the plaint which is
primarily to be looked at for deciding the question of
applicability of Section 92. The High Court was of the
view that the reliefs claimed in the plaint were stated
mainly in Para 12, which is analysed, would involve the
following.: –
(1) A declaration that the suit land was
Dharmottar land gifted to Bhanukuchi Sat
Sangi Satra for a religious purpose and that
the defendants had no personal interest
therein except as trustees for the
management of the Satra;
(2) A declaration that the defendants were
bound to maintain the Satra with the income
of the suit lands by observing the Doul
festival and the usual Nam-Kirtan;
(3) For a declaration that the plaintiffs as
Bhakatas of the Satra were entitled to
possess their own Basti and Paddy lands and
that they have a right of access to the use of
the Satra for various religious purposes.
(4) A claim for possession of the lands confined
to the above relief.
It was added in the plaint that a scheme case would be
instituted later on if considered necessary. The High
Court was of the view that none of the reliefs claimed in
Civil Revision No.2600 of 2008 – 26 –the plaint brought it within the terms of Section 92. It is
well settled by the decisions of this Court that a suit under
Section 92 is of a special nature which presupposes the
existence of a public trust of a religious or charitable
character. Such suit can proceed only on the allegation
that there is a breach of such trust or that directions from
the Court are necessary for the administration of the
trust. In the suit, however, there must be a prayer for one
or other of the reliefs that are specifically mentioned in
the section. Only then the suit has to be filed in
conformity with the provisions of Section 92 of the Code
of Civil Procedure. (See Mahant Pragdasji Guru
Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai and
others) It is quite clear that none of the reliefs claimed by
the plaintiffs fell within the section. The declarations
which were sought could not possibly attract the
applicability of Section 92 of the Civil Procedure Code.
The High Court was, therefore, right in holding that non-
compliance with that section did not affect the
maintainability of the suit.”
Thus, in view of the settled proposition of law, quoted above,
the present suit filed by respondent No.1-plaintiff is maintainable as there is
no allegation of breach of Trust. Moreover, the present suit is pending since
2000 and in view of the provisions contained in Order 1 Rule 9 of the CPC,
no suit shall be defeated by reason of misjoinder or nonjoinder of parties,
Civil Revision No.2600 of 2008 – 27 –except necessary party. In this case Trust was/is the necessary party and is
already there, as a plaintiff.
Therefore, the plaint filed by the Trust through trustee, Sh.
Ranjit Singh Bhail is not to be rejected under the provisions of Order 7 Rule
11 on the ground that trustee Sh. Ranjit Singh Bhail had died or original
defendants had died.
2. That so far as substitution/impleadment of petitioners as defendents is
concerned that was their own “alternative prayer” in the application dated
3.1.2005 (Annexure P-4) and the same was not objected by the plaintiff and
consequently they were allowed to be arrayed as defendants. So far as
substitution/impleadment of respondents No.2 & 3 are concerned that was
also not objected by the plaintiff and they were also substituted as defendants
and therefore, petitioners cannot and should not have any objection for their
impleadment, because the plaintiff is dominus litus of the case and if they
(plaintiff) has not raised any objection to the impleadment / substitution of
respondents No.2 & 3 as defendants, then certainly the petitioners (as co-
defendants) cannot raise any objection. In the case in hand there are two sets
of defendants who are claiming their substitution/impleadment and plaintiff
is not sure which is the real defendant out of these two sets. In such a
situation the plaintiff has done the right thing by not objecting to the
substitution of both the parties as defendants. Moreover Order 1 Rule 7 of
CPC is applicable in such a situation and that can be pressed into service as
Order 1 Rule 7, provides – “Where the plaintiff is in doubt as to the person
from whom he is entitled to obtain redress, he may join two or more
defendants in order that the question as to which of the defendants is liable,
and to what extent, may be determined as between all parties.” So far as
Civil Revision No.2600 of 2008 – 28 –
impleadment of one Rajinderjit Singh Gill is concerned; for his impleadment,
petitioners themselves made an alternative prayer in their application dated
3.1.2005 (Annexure P-4) and the same is not being opposed now in this court
by the present respondents No. 1. 2 & 3. Consequently he is also ordered to
be impleaded as a defendant.
The plea raised by the petitioners that application under Order
22 Rule 10 of the CPC filed by Mr.Avtar Singh Hunjan is not maintainable as
there was no proper resolution and there is no authorization either in his
favour or in favour of Mr. Ranjit Singh Bhail and further that application
under Order 22 Rule 3 was required to be filed by Mr. Avtar Singh and not
under Order 22 Rule 10 of CPC is not tenable. The resolution passed by Trust
in favour of Mr. Ranjit Singh Bhail, is already on record as mentioned in para
1 of the plaint (Annexure P-1). It is specifically pleaded that the Trust vide its
resolution has empowered Sh. Ranjit Singh Bhail its Secretary, to institute
the suit and at this stage, as already discussed the contents of the plaint are to
be seen and not the plea of the defendants. Therefore, keeping in view the
averments made in para 1 of the plaint it has to be presumed that there was a
valid resolution in favour of Mr. Ranjit Singh Bhail and once that is so, then
after the death of Mr. Ranjit Singh Bhail, Mr. Avtar Singh has been duly
authorized to pursue the case by the Trust by passing a resolution dated
8.7.2004 and thus there is no illegality in substitution of the name of Avtar
Singh in place of Ranjit Singh Bhail. Moreover, in this case the Trust is the
plaintiff and not Mr. Ranjit Singh Bhail. The Trust being a legal
entity/juristic present will never die with the death of Mr. Ranjit Singh Bhail,
rather it will continue as it is. Trustees may go on changing but Trust will be
there until and unless, it is dissolved according to law/trust deed.
Civil Revision No.2600 of 2008 – 29 –
The plea of the petitioners that applications have been made
under provisions of Order 22 Rule 10 of CPC and not under Order 22 Rule 3
of CPC is not legally sustainable. The provisions of Order 22 Rule 3 of CPC
are attracted in case of death of sole plaintiff or one of several plaintiffs. Rule
3 lays down that in case of death of sole plaintiff or one of several plaintiffs
an application is to be made and Legal Representative of the
deceased/plaintiff is to be made a party. The word “Legal Representative” is
defined under Section 2(11) of CPC which is reproduced herein under:-
” Legal representative means a person who in law
represents the estate of a deceased person, and includes
any person who intermeddles with the estate of the
deceased and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or sued.”
A perusal of Section 2(11) above reveals that Legal
Representative is a person who in law represents the estate of a deceased
person and includes any person who intermeddle with the estate of the
deceased or where a party sues or is sued in representative capacity and the
person on whom the estate devolves on the death of the party so sues or sued.
In the case in hand, Avtar Singh Hunjan is not a person who represents the
estate of Mr. Ranjit Singh Bhail or intermeddle with his property/estate and
furthermore, the present suit is not in a representative capacity. As for filing a
suit in representative capacity provisions of Order 1 Rule 8 of the CPC are to
be invoked, but that is not the situation here. Rather in the present case, Trust
is the plaintiff and Trust is not a deceased person, therefore, it can be safely
concluded that Mr. Avtar Singh is not the Legal Representative of Mr. Ranjit
Civil Revision No.2600 of 2008 – 30 –
Singh Bhail, therefore, provisions of Order 22 Rule 10 will apply and not
Rule 3. Order 22 Rule 3 will be applicable in case of death of plaintiff but in
the present case plaintiff is the Trust and which is very much there and Trust
has not died, rather it is the devolution of interest of trust in favour of Avtar
Singh Hunjan, after the death of Ranjit Singh Bhail, being a duly authorized
trustee. Reliance has been made in “Thirumalai Pillai and others vs.
Arunachella Padayachi and others” AIR 1926, Mad. 540, the Head Note-
(b) is reproduced as under:-
“(b) Civil P.C.., 0.22, R.10–Trustees dying or retiring
during pendency of a suit–Persons elected to fill their
places can be added as party apart from limitation.
Where some of the trustees die or retire during the
pendency of the suit and new persons are elected to fill
their place. It is a case of devolution of interest during
the pendency of a suit and the elected persons can be
added as parties under Order 22 Rule 10,
notwithstanding the question of limitation AIR 1922
Mad.402 and AIR 1924 Mad.615.”
And this was quoted with approval by a Division Bench of this
Hon’ble Court in “Roshan Lal Kunai Mal and others vs. Kanpur Chand
and others” A.I.R. 1960 Punjab & Haryana Page 382 Head Note (a) is as
under”
” (a) Civil P.C. (1980), Order 22 Rule 3, 10 –
Representative suit by trustees – Death of some of the
trustees during pendency of suit – Newly appointed
trustees are not representatives of deceased trustees
within Order 22 Rule 3 – New trustees can be added as
Civil Revision No.2600 of 2008 – 31 –parties under Order 22 Rule 10 notwithstanding question
of limitation: AIR 1923 Mad. 540, Rel, on : AIR 1952 Pat
323 and AIR 1933 Cal 329 and AIR 1951 Simla 257,
Ref.”
Further a plea is raised by the petitioners that application moved
by Mr. Avtar Singh Hunjan under Order 22 Rule 10 of CPC is beyond period
of limitation as Mr.Ranjit Singh Bhail died in 2000, resolution is alleged to
have been passed on 8.7.2004 and application under Order 22 Rule 10 CPC
was filed by Avtar Singh only on 10.5.2006 (P-11). This plea is also not
tenable in view of judgment reported as “Faquir Singh and others of
Sangrur vs. Smt. Saraswati Devi and others” 1993 HRR Page 40, in that
case cause of action arose in the year 1987 and application under Order 22
Rule 10 was made in the year 1991 and after considering numerous
judgment, learned Single Bench of this Hon’ble court held that delay is not
fatal for an application under Order 22 Rule 10 of the CPC. and the same
view is expressed in AIR 1960 Pb. & Hr. Page 382 (supra) and AIR 1926
Madras Page 540 (Supra).
Therefore, substitution/impleadment of the respondents No.2
and 3 as defendants and Mr.Avtar Singh Hunjan-Trustee to maintain the suit
on behalf of plaintiff is justified.
Counsel for the petitioner has confined his challenge only to the
impugned order dated 29.2.2008 (Annexure P-19) and has given up his
challenge to the impugned order dated 6.12.2007 (Annexure P-15).
In view of the above discussion, this Court is not inclined to
interfere with the impugned order dated 29.2.2008 (Annexure P19), in
Civil Revision No.2600 of 2008 – 32 –
exercise of jurisdiction under Article 227 of the Constitution of India as the
same does not suffer from any illegality or perversity. Consequently, the
petition is dismissed. However, keeping in view the fact that the interest of
public Trust is involved, the learned trial Court is, therefore, directed to
decide the pending suit expeditiously.
(JASWANT SINGH)
21.11.2008 JUDGE
vivek