Calcutta High Court
Balaram Das vs Guru Charan Biswas on 17 January, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
IA No. GA/35/2022
IN
CS/308/1872
BALARAM DAS
VS.
GURU CHARAN BISWAS
IA No. GA/41/2023
IN
CS/308/1872
BALARAM DAS
VS.
GURU CHARAN BISWAS
For the petitioner : Mr. Sudip Ghosh, Advocate
Mr. Tapas Manna, Advocate
Mr. Sanatan Panja Advocate
For Dakshineswar Kali Temple : Mr. Amitesh Banerjee, Senior Advocate
& Debottar Estate Mr. Roibat Banerji, Advocate
Reserved on : 12th December, 2024
Delivered on : 17th January, 2025
ORDER
Bivas Pattanayak, J. :-
1. In GA 35 of 2022, the applicant made the following prayers:
"a) Leave may be granted to the applicant to file the present application with
short cause title;
b) To set aside and/or cancelled the said purported Election Notification
dated Nil issued by the Chairman-Cum-Special Officer for holding he
Dhakhineswar Kali Temple Debottor Estate Board Election.
c) To set aside the purported Election Declaration Notice dated 28.04.2022
issued by the Chairman-Cum-Special Officer-Election-2022 forthwith.
d) To cancel/set aside and/or rescind the entire Election process of the said
Trustee Board of Dhakineswar Kali Debottor Estate as well as the purported
publication notice/Declaration of uncontested Election result-2022 dated
28.04.2022 forthwith.
e) To appoint a Receiver for holding the charge of the said Temple till the
newly elected Trustee Board is taken over the charge in accordance with law
or till the disposal of this application.
f) To pass an interim order of stay of operation of the said purported
Trustee Board Election-2022 result, published on 28.04.2022 by the
Chairman-Cum-Special Officer forthwith.
g) An interim order in terms of the aforesaid prayers.
h) Such further or other order/orders may be passed, as your lordships ay
deem fit and proper."
2. In GA 41 of 2023, the applicant made the following prayers:
"a) Leave may be granted to the applicant to file the present application with
short cause title;
b) To condone the delay of 8 days from 27.06.2023 to 3.8.2023 after
excluding the statutory period of 30 days in filing the aforesaid recalling
application forthwith.
a) To recall the judgement and order dated 27.06.2023 passed by the
Hon'ble Justice Shekhar B. Saraf of this Hon'ble High Court in G.A.NO. 30 of
2021 and other connected applications arising out of the said abated Suit No.
308 of 1872 on the sole grounds for suppression of materials facts and in
violation of principle of natural justice forthwith.
a) To place the aforesaid applications being G.A.No. 30 of 2021 and all
other connected applications before the appropriate Bench of this Hon'ble
High Court having determination and restore to its file and original number
forthwith.
b) Such further or other order/orders may be passed, as your lordships may
deem fit and proper;"
3. During the course of hearing, Mr. Sudip Ghosh, learned advocate
appearing for the applicants does not press for prayers made in the aforesaid
applications as noted hereinabove. However, he submitted that the applicants
intend to mould their prayer in respect of the query raised by the Court in GA
29 of 2021 on 22nd January, 2021 to the extent that firstly, who are the parties
to the suit and whether they are alive or not and secondly, whether the suit
itself is alive or not. The reliefs can always be moulded where the pleading in
substance disclose of such fact, even though such prayers are not made
originally and the parties are aware of the case. In support of his contentions,
he relied on the following decisions:
(i) P B Gajendragadkar, K.N. Wanchoo, M. Hidayatullah versus
Ramaswami1
(ii) Pasupuleti Venkateswaru versus The Motor & General
Traders2
(iii) Bachhaj Nahar versus Nilima Mandal & Anr.3
He further submitted that Sri Balaram Das, who instituted the suit, died in the
year 1920. The administrative suit cannot continue for an indefinite period.
Referring to Section 92 of the Civil Procedure Code, 1908 (hereinafter referred
to as the 'Code'), he submitted that in the case of any express breach and there
is a necessity for a direction of the Court for administration of any such trust,
the Advocate-General, or two or more persons having an interest in the trust
with the leave of the Court may institute a suit in order to obtain a decree, for
the purpose morefully described in Clause (a) to Clause (h) of Section 92(1) of
the Code including removing any trustee, appointing a new board of trustee
etc. Similarly, Section 3 of the Charitable and Religious Trusts Act, 1920
(hereinafter referred to as the 'Act of 1920') provides that any person having an
interest in any express or constructive trust created or existing for a public
purpose of a charitable or religious nature may apply by petition to the Court
having jurisdiction and seek for necessary directions, morefully described in
Clause (1) and Clause (2) of the said provisions. Therefore, there is no reason
1 AIR 1966 SC 735
2 AIR 1975 SC 1409
3 AIR 2009 SC 1103
that the instant administrative suit, in relation to which applications are being
filed, should continue for an indefinite period of time. The provisions contained
in the Code as well as in the Act of 1920 gives right to the Advocate General or
the interested party, as the case may be, to apply to the Court for fresh
directions, in the event of any breach. If the administrative suit is not alive,
then the applications for constitution of new board of trustees by election
cannot be at all maintainable. "Administration" means the management of the
estate of a deceased person who has left no executor. The object of an
administrative suit is to have the estate administered under a decree of the
Court. In such a suit the whole administration and settlement of the estate are
assumed by the Court. The suit in its essence is one for an account and for
application of the estate of the deceased for the satisfaction of the dues of all
the creditors and for the benefit of all others. Once the decree is passed in the
suit in final form, such suit comes to an end. In support of his contention, he
relied on the decision of Gujarat High Court passed in Bai Asmalbai W/O.
Vora Mahamad Alli versus Esmailji Abdulaji and Ors.4
In light of his aforesaid submissions, he prayed for an appropriate order and
record finding as to whether the suit, in the nature of administration of the
estate of Debottor, is still alive or not.
4. On the contrary, Amitesh Banerjee, learned Senior Advocate appearing
for Dakshineswar Kali Temple & Debottar Estate, at the very beginning,
submitted that the aforesaid issue as to whether the administrative suit is
alive or not has been set at rest by this Court by its order passed in GA 30 of
4 AIR 1964 Guj 174
2021 with GA 31 of 2022, GA 33 of 2022 on 30 th August, 2022. Similar
contention was raised before the Co-ordinate Bench that the suit is dead since
the original parties have died long ago and the Court observed that when it
comes to administrative suit, the Court is at liberty to allow the
trustees/sebaits to apply for the implementation of the scheme in connection
with the administration of Dakhineswar Temple & Debottar Estate. Such
findings and observation of the Co-ordinate Bench has never been challenged
in appeal. Therefore, such findings and observations of the court have reached
its finality. Thus, the argument that the administrative suit is not alive cannot
be sustained. Moreover, Dakhsineswar Kali Temple & Debottar Estate is being
run under a scheme which is monitored by Hon'ble High Court at Calcutta. The
said Debottar Estate is a private trust and not a public trust. He also indicated
that orders from time to time were being passed in the administrative suit by
this Hon'ble Court for administration of the estate including formation of new
board of trustees by way of election. The finding of the Court in its order dated
30th August, 2022 will act as a res judicata since the issue raised has already
been decided by this Court and has reached finality. To buttress his contention,
he relied on the decision of Hon'ble Supreme Court passed in Jamia Masjid
versus K.V. Rudrappa5.
In light of his aforesaid submissions, he prayed for dismissal of both the
applications.
5. In reply to the contentions raised on behalf of respondents, Mr. Ghosh,
learned advocate for the applicants drew the attention of the Court to order
5 (2022) 9 SCC 225
dated 30th August, 2022 wherein the Court clarified that there are no
observations passed by this Court on merits of the prayers made therein.
Therefore, the observations cannot act as a res judicata so far as the present
applications are concerned. The provision of law clearly lays down that
repeated applications are to be made for administration and management of
the estate separately and not in a dead administrative suit.
6. Upon considering the submissions made by learned advocates appearing
for respective parties, at the outset, since the learned advocate for the
applicants not pressed the prayers made in GA 35 of 2022 and GA 41 of 2023,
the said prayers stand dismissed as withdrawn. However, this court would
examine the only issue which has been urged during hearing of the instant
applications as to whether the administrative suit being CS 308 of 1872 is alive
or not.
7. It is a fact that in GA 29 of 2021 on 22 nd January, 2021, a Coordinate
Bench of this Court raised a query as to who are the parties to the suit and
whether they are alive or not. Basing on such query, the applicant herein has
contended that the suit is not alive after such inordinate period. By an order
dated 10th March, 2022 in GA 30 of 2021, a Coordinate Bench of this Court
appointed Justice Jyotirmay Bhattacharya, Former Chief Justice, Calcutta
High Court as Chairman-cum-Special Officer of the Dakhineswar Kali Temple
& Debottar Estate, Kolkata wherein he was directed to hold election for
constituting a new board of trustees of the said estate. Applications being GA
31 of 2022, GA 32 of 2022 and GA 33 of 2022 were filed seeking modification or
recall of the order dated 10th March, 2022. In the said applications, it was
contended on behalf of the applicants that the order dated 10th March, 2022 for
holding election was passed in a dead suit since the original parties are long
dead. While dealing with the aforesaid contention, the Co-ordinate Bench in its
order dated 30th August, 2022 observed as follows:
"5. This Court agrees that the parties to the original appeal might be dead
unless they're over 150 years old and a world record for the oldest human
alive is being broken. But the material facts of the judgments cited by the
counsel starkly differ from the present one at hand. This isn't an ordinary
suit but rather an administrative one under the control of this Court.
When it comes to this administrative suit, the Court is at liberty to allow
the Trustees/sebaits to apply for the implementation of the Scheme in
connection with the administration of Dakhineswar Temple and Debottar
Estate."
8. From the aforesaid observation, it is found that the Coordinate Bench has
categorically opined that the suit is not an ordinary suit but an administrative
one under the control of this Court and when it comes to administrative suit,
the Court is at liberty to allow the Trustees/sebaits to apply for the
implementation of the Scheme in connection with the administration of
Dakhineswar Kali Temple & Debottar Estate. Admittedly, such observation of
the Court has not been challenged in appeal and it has reached its finality. Mr.
Ghosh, learned advocate for the applicants relying on the decision of Gujarat
High Court passed in Bai Asmalbai W/O. Vora Mahamad Alli (supra) as well
as referring to Section 92 of the Code and Section 3 of the Act of 1920 tried to
impress upon the Court contending that since the administrative suit is not
alive, there is requirement to file separate and distinct applications or suits
under relevant provisions of law for administration of the estate and holding
election for appointment of new board of trustees and such applications cannot
be entertained in a dead suit. The aforesaid decision in Bai Asmalbai W/O.
Vora Mahamad Alli (supra) has taken into consideration several other
decisions of various High Courts where the scope of administrative suit has
been dealt with. The sum and substance which comes out from the aforesaid
decision is that "administration" means management of deceased's estate. The
Court is requested to assume its management to take upon itself the functions
of an executor or administrator and administer the estate. The administration
of a deceased's estate consists of collection and preservation of assets, payment
of debts and legacies, acts in respect of adverse claims to assets, dealing with
creditors or legatees and distribution finally among the heirs or next of kin.
These are the functions of an administrator and the object of an administrative
suit is to have the estate administered under a decree of Court, in other words,
the Court itself assumes the function of an administrator and administrates
the estate.
9. During the course of hearing, learned advocate representing Dakhineswar
Kali Temple & Debottar Estate handed over previous orders of this court passed
in different interlocutory applications. Upon going through the orders, it is
found that the trust is being administered by Court. The suit was filed in the
year 1872 for framing a scheme for implementation of deed of arpannama
executed by Rani Rashmoni and the order was made for administration in 1912
and the scheme was substantially modified on 16th July, 1929. A further
modified procedure had been adopted pursuant to direction of this Court in the
year 1986. In the suit, a preliminary decree was passed. A scheme of
administration had been framed for administration of the trust estate. The
scheme from time to time had been modified by this Court. Therefore,
considering the nature of the suit and the orders passed by this Court from
time to time for implementation of the scheme for administration of estate, it
appears that the argument advanced on behalf of the applicants that the
administrative suit is a dead suit, is not sustainable. Furthermore, the
observation of the Co-ordinate Bench in GA 31 of 2022, GA 32 of 2022 and GA
33 of 2022 that the present suit is an administrative one under the control of
this Court and the Court is at liberty to allow the Trustees/sebaits to apply for
the implementation of the Scheme in connection with the administration of
Dakhineswar Temple & Debottar Estate since being not appealed against act as
a res judicata as the said issue has already been decided by this Court. The
principles of res judicata apply not only to the final judgment but also between
different stages of the same litigation. A court that has decided a matter at an
earlier stage will not allow the parties to re-agitate that matter at a later stage.
Thus the order of Co-ordinate Bench holding that the present suit is an
administrative one under the control of this Court and the Court is at liberty to
allow the Trustees/sebaits to apply for the implementation of the Scheme in
connection with the administration of Dakhineswar Temple & Debottar Estate
cannot be re-opened since no fresh facts emerge for consideration. Indisputably,
if an interlocutory order decides a controversy between the parties, it would
bind the parties and operate as res judicata at all subsequent stages. This
Court finds substance in the submissions of Mr. Banerjee, learned Senior
Advocate appearing for the respondents relying on Jamia Masjid (supra) in
this regard.
10. In light of the aforesaid discussion, the applications being GA 35 of 2022
and GA 41 of 2023 stand dismissed.
11. Urgent photostat certified copy of this order, if applied for, be given to the
parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)
