ORDER
Murlidher Rao, J.
1. The tenants are the revision petitioners. The respondent in all these cases is the landlord. It is a Trust called Sri Chandramouleshwara Swamy Temple Trust, Gandhinagar, Bangalore-9. On behalf of the Trust, the Secretary filed eviction petitions in H.R.C. 123, 125, 126, 127, 129, 130 and 132 of 1981. Eviction was sought
under Clauses (h) and (j) of Section 21(1) of the Karnataka Rent Control Act, 1961 (‘the Act’ for short). In some matters, eviction was also sought under Clause (p) of Section 21 (1) of the Act, The learned Judge on recording evidence has passed an order of eviction in respect of all the tenements. In these petitions, learned Advocates appearing for the tenants-petitioners submitted that eviction petitions filed by the Secretary were not maintainable. Elaborating their arguments, they drew my attention to a Scheme framed in O.S.No. 41 of 1957. It is not disputed that the management and administration of the temple is according to the scheme framed by the Second Additional District Judge, Bangalore in the above suit. Under the scheme provisions have been made for the purpose of management, administration and conduct of cases in Courts etc. The Committee of Management consists of nine members elected or nominated by the members of Swakulashale Community who are the worshippers of the temple. The Chairman, Vice-Chairman and Secretary are the office bearers of the said Committee. They are to be elected amongst the members of the Committee and if no election is held for any reason, they are to be appointed by the District Court. The term of the office of the Chairman, Vice-Chairman and Secretary is two years. Para 7 of the Scheme pertains to the Powers and Duties of the Trustees. Para 9 of the Scheme provides for duties and powers of the Managing Committee. Para 3 of the Scheme provides for the office of the Secretary, Duties and powers of the Secretary as mentioned in the said paragraph are as follows:
“The duties of the Secretary shall be apart from those that may be assigned by the Trustees, by a resolution, are the following:
(i) To control and supervise over the staff of the temple and to employ such persons for assistance as may be required, temporarily in case of need;
(ii) To discharge payments and obtain proper vouchers;
(iii) To call for the meetings of the trustees once in a month and to prepare agenda;
(iv) To supervise and help the treasurer in the preparation and maintenance of accounts;
(v) To be present personally and help conducting poojas on festival occasions.”
Para 12 of the scheme deals with the powers of the Committee of Management. The said paragraph reads thus:
“The Committee of management shall have no power to borrow money for any purpose except as above. It is open to the Committee of the trustees to manage the affairs of the trust with the income derived and shall make arrangement for proper funds by charities and donations. The Committee of management can sue and be sued in the name of Sri Chandra Mouleswara Swamy Temple Trust and they shall have the power to institute, prosecute any suit, to defend any cause of action, to file application before any Tribunal, public authority, local body, Government and appoint Counsels and the Chairman and the Secretary are authorised to sign the necessary papers on behalf of the said trust.”
The later part of paragraph 12 makes it manifest that this Committee of management can sue and be sued in the name of the Temple and the papers connected thereto in the litigation have to be signed by ‘the Chairman and the Secretary’ who are authorised to sign on behalf of the trust.
2. Under the provisions of the scheme, the Board of Trustees at its meeting held on 29th June, 1980, passed a resolution regarding the eviction proceedings to be initiated on behalf of the Trust. The resolution stated that since the tenanted premises belonging to the temple are in dilapidated condition, to protect the interest of the institution, it was necessary to take action to evict the tenants. In that regard a resolution was passed appointing Mr. Srinivasa Murthy as Advocate of the Trust. It was further stated that Sri Sarode Gangadharappa, the Secretary and Sri S.N. Gangadhar Rao, the Treasurer, were nominated to represent the trust and approach the lawyer to give necessary instructions to conduct proceedings for eviction vide Exhibit P-1(a). As per this resolution, the Secretary and the Treasurer were appointed as nominees to act on behalf of the Trust. As mentioned above, under the Scheme, it was the Chairman and the Secretary who should represent the trust in all litigations. This being the background, eviction petitions were filed against all the tenants of this Trust. The Trust was represented by the Secretary Sri Sarode Gangadharappa. Eviction petitions were signed and verified by Sri Sarode Gangadharappa. Vakalath filed in favour of Sri Srinivasa Murthy was signed by Sarode Gangadharappa describing himself as the Secretary of the Trust. The tenants contested the matter. After recording evidence, argument, were heard. In the course of arguments, the first point that was debated was whether eviction petition filed by Sarode Gangadharappa, the Secretary of the Trust was valid and proper.
3. In this context, it is seen from the Judgment, decision of Supreme Court in , decision of Gujarat High Court in and also a decision of the Division Bench of Delhi High Court in A.I.R. 1985 Delhi page 145 were cited. The learned Judge held that since there was a resolution appointing the Secretary to file petitions and the scheme empower the Secretary to file petitions, the contentions to the contrary were not acceptable. In coming to the conclusion, the learned Judge has held that though under the Scheme it was the Chairman and the Secretary who could represent the Trust, under the resolution, the Secretary could represent the Trust, This was a clear misreading of the resolution. Therefore, presentation of the papers, signing of the papers and entrustment of the matter to the Lawyer by the Secretary alone is not in conformity with the resolution. The learned Judge thereafter proceeded to deal with the merits of the matter and has passed an order of eviction.
4. When these matters were taken up for hearing, learned Counsel appearing for the petitioners raised an objection regarding maintainability of eviction petitions. It was contended by them that the management and administration of the Trust is governed by the Scheme framed by the District Judge as per Ex.P.25. Under this scheme, the entire functions can only be carried out with reference to the Scheme and not otherwise. According to the learned Advocate for tenants, para 12 of the scheme specifically provides for the conduct of legal proceedings. The Trust has to be represented by the Chairman and the Secretary who are exclusively authorised to sign the papers on behalf of the Trust. Obviously the litigation on behalf of the Trust can only be conducted according to the provisions contained in the scheme and not otherwise. According to the resolution, dated 29-6-1980, the authority is given to the Secretary and the Treasurer. Action taken by the Secretary alone is neither in accordance with the scheme nor it is in accordance with the resolution. In this context, learned Advocates placed reliance on the Judgment of the Supreme Court in JANAKIRAMA IYER v. NILAKANTA IYER . In para 21 of the said Judgment, it was observed thus:
“The authors of the trust, while creating the trust have made elaborate provisions in respect of the several matters concerning the execution of the trust, and the whole scheme of the trust deed is consistent with the operative Clause 23 in that it seems to require all the trustees to act together even though the decisions which they seek to give effect to may have been majority decisions and not unanimous decisions. Therefore, in our opinion, the Courts below were right in holding that Clause 23 like the main provision of Section 48, requires that all the trustees should have joined in the execution of the sale deeds in question. That being so, Exs.B-94 and B-37 which are respectively executed in favour of defendant 14 and defendant 15 are invalid and can pass no title to the alienees on the ground that only two out of the three trustees have executed them (Vide: Manmohan Das v. Janaki Prasad, 72 Ind App 39 [AIR 1945 PC 23]:
(Underlining is mine)
5. Mr. Savanur, learned Counsel for the respondent submitted that in view of Section 48 of the Trusts Act, the principle would be that if all the trustees have passed resolution, it is open to any of the trustee or trustees to act on behalf of the Trust. He placed reliance on ABDUL KAYUM v. ALIBHAI . In my opinion the said ruling has no relevance to the facts of the case. That was a case where the question was whether the trustees can transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed or agreed to by the entire body of beneficiaries. According to the claim, the action taken by the Secretary was clearly illegal and therefore has no competence to represent the trust. So far as Section 48 is concerned, Sri Savanur has placed reliance on para 19 of Janakirama Iyer’s case. After extracting the relevant portion of observation of Lewin on Trusts, their Lordship observed thus:-
“As we have seen Section 48 contemplates that its provisions will not apply where the instrument of trust otherwise provides. In other words, if a trust deed under which more trustees than one are appointed expressly provides that the execution of the trust may be carried out not by all but by the one or more then of course the matter would be governed by the special provision of the trust deed.
(Underlining is mine)
6. Learned Counsel for the petitioners also placed reliance on a Judgment of the Supreme Court in HUKUM CHAND SHYAMLAL v. UNION OF INDIA . Reliance was placed on para 18 of the Judgment wherein their Lordship have observed –
“It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden.”
This observation of the Supreme Court makes it manifest that the Chairman and the Secretary should act in any action to be taken on behalf of the trust, it is obvious that action could be taken only in that manner and not in any other manner and not as it suits the convenience of one or more of the trustees in the trust.
7. Mr. Savanur relied on a decision of this Court in JAIN SWETAMBARA MURATHI PUJAKA SAMASTHA v. WAMAN DATTATREYA PUKALE1978(2) KLJ 425. In the said case, eviction petition was filed by one of the trustees on behalf of the Trust. Thereafter application was filed by other Trustees in I.A.III to get themselves impleaded. That application was rejected. Against that order revision petition was filed under Section 115 of the C.P.C, On reference by the learned Single Judge, the learned Judges of the Division Bench have allowed the said application
and directed the other trustees to be impleaded as Co-petitioners. This Court was of the view that the position of the trustees is like co-owners. If one Trustee has filed the petitions the other trustees, who are co-owners can be joined as parties. The situation in the instant case is different. In this case, it is not necessary for all of them to come on record. Moreover, in the above Judgment, there does not appear to be any specific provision for conducting litigation on behalf of the Trust as found in paragraph 12 of the Scheme. Therefore, the question that arises for consideration is where a specific provision is made in the scheme, is it open to the Secretary to act in contravention of the provisions of the scheme? As per the scheme, the eviction petition filed by the Secretary alone representing the Trust was clearly incompetent. The Court below did not get jurisdiction to proceed with the matter on behalf of the Trust when the presentation and intiation of proceedings was in contravention of the Scheme.
8. Mr. Savanur however contended that the resolution dated 9-3-1981 Ex.P.21-b authorises the Trust to undertake works of general public interest. That resolution has no relevance regarding the procedure to act on behalf of the Trust. So also the resolution dated 4-3-1984 Ex.P.21-C. While the resolution dated 29-6-1980 authorises the Secretary and Treasurer to act on behalf, the other two resolutions do not touch this aspect. But the resolution dated 29-6-1980 provides a procedure, which is inconsistent with paragraph 12 of the Scheme, which authorises only the Chairman and Secretary. The responsibility is joint. The Trust has to function as per the Scheme, it cannot pass a resolution in respect of matters for which the Scheme makes a specific provision. Thus examined the resolution dated 29-6-1980 is clearly ultravires of the Scheme. In the instant case as mentioned earlier the action of the Secretary is not only in contravention of the Scheme, it is not in conformity with the resolution. Therefore, there can be no hesitation to hold that the presentation was illegal. At this stage it is incapable of being amended. These petitions are entitled to succeed. The eviction petitions are liable to be dismissed as not maintainable. This will not preclude the Trust from initiating fresh eviction proceedings in accordance with the Scheme. The dismissal will not operate as a bar under Section 45 of the K.R.C. Act, All these petitions are allowed; the impugned orders are set aside. Eviction Petitions are dismissed. No costs.