$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : October 05, 2012
Judgment Pronounced on : October 08, 2012
+ REV.PET.583/2012 in RFA(OS) 81/2010
INDIAN YOUTH CENTRES TRUST & ORS ..... Appellants
Represented by: Mr.V.P. Chaudhary, Sr.Advocate
instructed by Mr. N. N. Chaudhary,
Adv. for appellants No.1 to 3.
versus
SHISHIR BAJAJ & ORS ..... Respondents
Represented by: Mr.Sudhir Chandra, Sr.Advocate
instructed by Mr.Uday Kumar and
Mr.Sanjiv Kumar Singh, Advocates.
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J.
1. The appeal was dismissed vide judgment and order dated September 04, 2012.
2. Seeking review, it is urged in paragraphs 4 and 5 of the application as under:-
"4. That the said learned Sr. Counsel for the appellants Nos.1 to 3 submitted before this Hon'ble Court that in view of the above averments and keeping in view the scope of Section 92 of the Code of Civil Procedure, 1908, the learned single Judge ought not to have granted leave under that Section and should have dismissed the suit as not maintainable. Another facet of that argument which the learned Sr. Counsel pressed was that the learned Single Judge should have first decided whether the leave under Section 92 for filing the suit be granted or not and after REV.PET.583/2012 Page 1 of 5 deciding that question, should have proceeded to handle the case further, if necessary. This Hon'ble Court has not dealt with these submissions in its order dated 04.09.2012.
5. That apart from arguing the issue which has been dealt by this Hon'ble Court regarding the manner in which the Trust has to be discharged, the kind attention of this Hon'ble Court, during the course of arguments, was also invited by the appellants to para 16 of the judgment of the learned Single Judge wherein the plea of estoppel was taken, to para 17 alleging the plaintiffs' conduct disentitling them to any relief and to para 20 referring to the practice of authorization for harmonious functioning of the Trust. It was argued that though the learned Single Judge had taken note of those submissions, yet no findings were returned by the learned Single Judge. This Hon'ble Court has also not dealt with those submission in its order dated 04.09.2012."
3. With respect to first ground on which review of the order dated September 04, 2012 is prayed for, suffice would it be to state that in the judgment and decree dated July 26, 2010 passed by the learned Single Judge, which was under challenge before the Division Bench, in para 22 it has been noted as under :-
"22. Summons had been issued in the suit on 05.02.2010; the first three defendants entered appearance o the next date, i.e. 16.03.2010. Subsequently, they filed their written statement. Defendant Nos. 4-6 appeared on 19.04.2010. They perhaps justifiably did not wish to enter the controversy and did not choose to file any written statement. Accordingly, the matter was heard on 29.04.2010 and subsequently on 12.05.2010. Counsel for the parties agreed that a formal trial in this case is unnecessary since the material documents are part of the record and the only question, which the Court has to decide, is as to the validity of the procedure adopted for appointments of new trustees and whether decisions taken by the board of Trustees on 19.09.2009 with participation of such new trustees is legal and binding upon the Trust."
4. In paragraphs 24 to 28 of the impugned decree, the learned Single REV.PET.583/2012 Page 2 of 5 Judge has discussed the issue whether leave ought to be granted to the respondents to institute the suit under Section 92 of the Code of Civil Procedure.
5. From a perusal of the plaint, it is evident that the plaintiffs instituted the suit by asserting that they were vindicating a personal right when they were questioning the induction of defendants No.4 to 6 as trustees of defendant No.1 Trust, but by way of abundant precaution, had filed IA 1407/2010 seeking leave to sue under Section 92 of the Code of Civil Procedure. While so seeking, the plaintiffs had averred that they had filed the application as a matter of abundant caution so that technical objection may not be raised by the defendants.
6. Noting Section 92 of the Code of Civil Procedure and the law declared by the Supreme Court in the decisions reported as (1991) 1 SCC 48 R.M.Narayaya Chettiar & Anr. v N.Lakshmanan Chettiar & Ors., (1969) (3) SCR 83 Sugra Bibi v Hazi Kummu Mia, (1974) 2 SCC 695 Swami Paramatmanand Saraswati & Anr.v Ramji Tripathi & Another and 2008 (4) SCC 115 Vidyodaya Trust v Mohan Prasad R., the learned Single Judge has held that notwithstanding plaintiffs' stating in para 2 of the plaint that they had instituted the proceedings to vindicate their personal rights, but keeping in view the fact that defendant No.1 was a public charitable trust and the lis involved the question of the obligation of the trustees to discharge the Trust, the lis squarely falls within the domain of this Court to decide the matter keeping in view the rights of the general public, which is the deemed beneficiary of the Trust.
7. Leave to sue was accordingly granted.
8. The question that after deciding whether leave under Section 92 of the Code of Civil Procedure should be granted or not and only thereafter matter should have proceeded further, needs to be considered with respect to REV.PET.583/2012 Page 3 of 5 what has been noted by the learned Single Judge in para 22 of the impugned decision.
9. In view of the concession given by learned counsel for the parties, as recorded by the learned Single Judge, that a formal trial was not warranted, it is apparent that review sought as per pleadings in para 4 of RP 583/2012 is misconceived.
10. We need to speak a little more.
11. The parties were not at variance on question of facts. The only issue was whether by passing the resolution dated October 23, 2007, the trustees had delegated the discharge of the Trust to the managing trustee; and if yes, whether that was legally permissible.
12. Under the circumstances, it made sense for counsel for the parties to make a concession as recorded by the learned Single Judge in para 22 of the impugned decision.
13. It is apparent that both parties were desirous of an early resolution of the dispute, and since no evidence was warranted to be led in the proceedings, conceded to the issue of leave to sue as also the merits being decided simultaneously.
14. That apart, it is settled law that if in a judicial proceedings a concession is recorded by a Court as having been given by the parties, it would be impermissible to urge in appeal that no such concession was given.
15. The remedy is to move an application before the Court concerned drawing its attention to said part of the decision where concession granted is recorded and thereafter seek appropriate relief.
16. As regards para 5 of RP 583/2012, suffice would it be to state that in view of what has been recorded by the learned Single Judge in para 22 of the impugned decision, the question of proving any past conduct and therefrom predicating a stand on the plea of estoppel against the plaintiffs does not REV.PET.583/2012 Page 4 of 5 arise.
17. That apart, the issue being purely legal, the question of any past conduct being looked into or estoppel flowing therefrom does not arise.
18. From the pleadings of the parties, the decision of the learned single Judge, as also our decision, review whereof is sought, it would be evident that the only issue before the Court was to interpret Clauses 13,14,15,17 and 18 of the Deed of Trust dated August 10, 1961 and apply the law relating to the discharge of Trust by the trustees. The specific issue was : Whether the trustees have to jointly discharge the Trust or could the trustees delegate their power to a co-trustee. Of course, this law had to be applied after interpreting the resolution dated October 23, 2007 i.e. Whether vide said resolution there was a delegation by the trustees to discharge the Trust or the resolution simply required a ministerial function to be performed by the managing trustee.
19. This issue has been squarely noted and decided by the learned Single Judge and also by us.
20. Under the circumstances, we hold that no case is made out for us to review our decision dated September 04, 2012 and accordingly we dismiss RP 583/2012, but without any order as to costs.
(PRADEEP NANDRAJOG) JUDGE (MANMOHAN SINGH) JUDGE OCTOBER 08, 2012 skb REV.PET.583/2012 Page 5 of 5