Calcutta High Court
Kalishankar Radhey Shyam Trust And ... vs Jayshree Wadhawa on 17 September, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IN APPEAL FROM AN ORDER PASSED IN ITS ORDINARY ORIGINAL
CIVIL JURISDICTION
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Uday Kumar
A.P.O.T. No. 223 of 2025
C.S.O.S. No. 4 of 2025
IA NO: GA 1 of 2025
Kalishankar Radhey Shyam Trust and Others
Vs.
Jayshree Wadhawa
For the appellants : Mr. Anirban Ray, Sr. Adv.,
Mr. Debdut Mukherjee,
Mr. Nirmalya Dasgupta,
Ms. Naisanjana Ghosh ... Adv.
For the respondent : Mr. Suman Dutt, Sr. Adv.,
Mr. Rupak Ghosh,
Mr. Dwaipayan Mallik,
Ms. Nilanjana Adhya,
Ms. Tanvi Luhariwala,
Ms. Ruchika Dhenuka,
Mr. Kailash Denuka ... Advs.
Heard and Reserved on : 10.09.2025
Judgment on : 17.09.2025
Sabyasachi Bhattacharyya, J.:-
1. The present appeal has been preferred against an order dated August 1,
2025, whereby an ad interim injunction was granted restraining the
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defendants/appellants in an Originating Summons from transferring,
alienating, dealing, selling, encumbering or parting with any of the
assets including the amounts lying in the bank accounts and the fixed
deposits, which are the subject matter of the proceeding, till August 22,
2025.
2. The court is apprised that the said ad interim order was subsequently
extended, challenging which another appeal has been preferred, which
is now pending before the regular Bench, while the present appeal has
been assigned to us.
3. The learned Senior Advocate appearing for the appellants argues that
the injunction order was passed in connection with Originating
Summons (for convenience, hereinafter referred to as "OS") issued
under Chapter XIII of the Original Side Rules of this Court. By taking
the court through different provisions of Chapter XIII, it is argued that
the same does not contemplate a regular adjudication akin to a civil
suit but is a proceeding of summary nature.
4. Rule 1 of Chapter XIII provides that OS may be taken out for such relief
of the nature or kind following, relating to the determination (without
an administration of the estate of trust) of the questions or matters as
stipulated therein. Clauses (a) to (g) of the same envisage adjudications
in the nature of declaration.
5. Rule 18 of Chapter XIII provides that the Judge hearing an OS may,
where he thinks fit, adjourn the same into Court for hearing and
argument and where it appears to him that the matters in respect of
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which relief is sought cannot be disposed of in a summary manner,
may refuse to pass any order on the summons, may dismiss the same
and refer the parties to a suit in the ordinary course.
6. Thus, the learned Senior Advocate appearing for the appellants argues
that orders affecting the rights of parties, if any, can be passed in
connection with an OS only upon the summons being served and upon
hearing the defendant.
7. It is next contended that although Rule 17 provides that where parties
do not agree to the correctness to the facts set forth in the affidavit, the
Judge may order the summons to the supported by evidence and may
give directions as he may think just for the trial of any questions
arising thereout, such adjudication comes only at the stage of hearing
of the summons and is focused on the questions on which
determination can be sought under Rule 1 or Rule 2.
8. Hence, the learned Senior Advocate submits that there is no scope of
grant of any ad interim relief touching the rights of the parties prior to
hearing of the parties on summons being served.
9. The learned Senior Advocate further argues that the learned Single
Judge, while passing the impugned order, placed reliance on State
Bank of India v. Mohuragang & Gulam Tea Estate & Anr., reported at
1988 SCC OnLine Cal 124, by observing that in the said case, the
learned Single Judge had granted an interim order in the OS suit,
which was duly confirmed by the Division Bench. However, it is
submitted that such finding is perverse, inasmuch as the Division
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Bench, in the said case, did not confirm the order of the learned Single
Judge; on the contrary, the appeal against the same was allowed on the
ground of non-maintainability of the OS. By placing further reliance on
the said report, the learned Senior Advocate argues that the proposition
laid down therein is contrary to the submissions of the
plaintiff/respondent. It was held therein, inter alia, that questions of
fact ought not to be dealt with by way of an OS and that this mode of
procedure is better to decide matters which are not of an involved
nature and not questions which may require considerable discretion.
10. If certain amount of evidence is involved, the Division Bench held that
it would be inexpedient to deal with the same in an OS. Unless pure
questions of law were raised, the questions ought not to be raised,
agitated and dealt with under an OS, as per the cited judgment.
11. The learned Single Judge also relied on an order dated August 29, 2024
in CSOS/8/2024 [Shekhar Guha and Anr. vs. Shyamali Basu and Ors.],
passed by the same learned Single Judge granting injunction in
connection with an OS suit. However, it is argued that the said order
does not lay down any proposition of law.
12. The learned Senior Advocate for the plaintiff/respondent controverts
the submissions made by the appellants and argues that Rule 1 of
Chapter XIII clearly contemplates "reliefs" to be granted on the
determination of the questions as mentioned therein. By placing
particular stress on the terms "relief" and "matters", it is argued that
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the determination under Chapter XIII is not confined to mere
declarations.
13. It is argued that OS is one of the modes of service of summons and
does not determine the character of the suit itself. In essence, it is
argued, it is a suit which is initiated by OS. In support of such
proposition, the learned Senior Advocate for the plaintiff/respondent
relies on Rule 20 of Chapter XIII, which provides that a decree shall be
drawn up on any order being passed in an OS proceeding. Rule 20
further provides that the Judge may pronounce such judgment "as the
nature of the case shall require", thereby indicating the wide range of
reliefs which can be granted in such a proceeding. Rule 21 provides for
issuance of special directions touching the carriage or execution of
such a decree, which further indicates that, for all practical purposes,
the proceeding initiated by OS is a suit where a decree can be passed
which is enforceable in nature.
14. The learned Senior Advocate next argues that the court always has the
power to grant protection at the ad interim stage in aid of the final
reliefs in the proceeding. Since a composite reading of Rules 18 to 21
of Chapter XIII indicates that the court has the discretion, upon service
of OS, to grant reliefs as the case may require, the learned Single
Judge, in the present case, was justified in granting ad interim
protection in order to preserve the property in aid of the final relief.
15. It is argued that in the event ad interim injunction was not granted, the
proceeding would run the risk of being rendered infructuous.
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16. The learned Senior Advocate takes the court through the concerned
trust deeds which provide for devolution of trusteeship on the heirs of
the trustees. It is argued that one of the questions formulated before
the court is whether juristic entities (companies) can come within the
contemplation of trustees, the answer to which is a foregone
conclusion, since only biological entities can have "heirs".
17. The learned Senior Advocate highlights that there is wide scope of grant
of relief in OS suits, akin to a summary suit. As such, it is contended
that the learned Single Judge was justified in passing the impugned
order.
18. The primary issue which falls for consideration before this court is
whether the learned Single Judge acted within jurisdiction in issuing
ad interim order of injunction in connection with an OS suit.
19. Before entering into such question, the scope of the OS in the present
case is required to be looked at. Neither the OS nor the supporting
affidavit includes any prayer portion or seeks any relief directly
touching upon the corporeal rights of the parties in respect of any
property - movable or immovable.
20. The "reliefs" sought are the determination on the following questions
and/or matters:
A. Whether clauses 2 and 3 at pages 14 and 15 of the said Trustee Deed
gives the right to the Trustee to appoint non-living persons/entities as
Trustees in place and stead of living persons mentioned in the said Trust
Deed?
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B. Whether clause for male primogeniture as mentioned in clause 2 at
pages 14 and 15 of the said Trust Deed is valid and legal or can be given
credence to albeit being contrary to judicial precedence and principles of
Hindu Law?
C. Whether the appointment of two companies, namely, Wadhwa
Endowment Management Private Limited and Jerambhai Management
Services Private Limited as Turstees by Gordhandas Wadhwa and
Damodardas J. Wadhwa by Deeds are valid and operative and whether
these companies be allowed to act as Trustee in respect of the said
Trust?
D. Whether an order to restrain the companies, namely, Wadhwa
Endowment Management Private Limited and Jerambhai Management
Services Private Limited from acting as Trustees of the said Trust till the
disposal of the present Originating Summons suit, can be passed?
E. Whether an order to appoint a suitable person as Receiver over the
assets and properties of the Trust, who would oversee the entire
functioning of the said Trust being "Kalishankar Radhey Shyam Trust"
by the Board of Directors of the said companies till the disposal of the
instant Originating Summons suit, can be passed?
F. Whether an order to restrain the said companies from transferring
and/or alienating and/or dealing with and/or selling and/or
encumbering and/or parting with any of its assets, jewelleries and/or
money kept in savings bank account and fixed deposits till the disposal
of the instant Originating Summons suit, can be passed?
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G. Whether an order to direct the said companies, namely, Wadhwa
Endowment Management Private Limited and Jerambhai Management
Services Private Limited to disclose on affidavit the current assets of the
said Trust before this Hon'ble Court, can be passed?
21. The plaintiff/respondent contends that the reliefs primarily come within
the ambit of Clause (g) of Rule 1 of Chapter XIII.
22. In order to examine the scope of exercise of jurisdiction in an OS
proceeding, the scheme of the Original Side Rules of this Court is to be
looked into.
23. Chapter VIII deals with writ, summons and process in respect of a
regular civil suit, which provisions are embedded in the midst of other
provisions in the Rules in respect of regular suits. Rules 5 and 6 of
Chapter XII pertain to summary suits. Rule 6 has since been deleted
by Notification No. 74 published in the Calcutta Gazette, Part-I, dated
July 28, 1977. The amended Rule 5 stipulates that the provisions of
the Code of Civil Procedure and the procedure laid down therein
relating to summary suits under Order XXXVII will apply. Chapter XII
itself deals with commercial suits, summary suits and suits by indigent
persons.
24. Chapter XIIIA, on the other hand, deals with summary procedure in
suits to recover debts or liquidated demands or for immovable property.
Rule 1 of Chapter XIIIA specifies the nature of suits in which such
summary procedure is applicable.
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25. Thus, where the Original Side Rules intend to do so, it specifically
provides for summary procedure in respect of regular civil suits.
26. Chapter XIII, however, does not deal with suits of a regular nature but
is captioned "Originating Summons". Although traditionally numbered
as suits, the nature of proceedings in case of an OS is markedly
different from a regular civil suit. The adjudication in OS proceedings
is centred around Rules 1 and 2, which specify the nature of such
adjudication. Whereas Rule 2 provides that a person may apply for and
obtain an order for the administration of the estate of the deceased,
administration of the trust or for discharge of executor, administrator
or surety and refund of security deposit, if any, Rule 1 is couched in a
different language. It is not an "order", unlike Rule 2, which is
envisaged in Rule 1, but the "determination of questions or matters" as
stipulated in Clauses (a) to (g) therein. Rule 1 is quoted for convenience
hereinbelow:
"1. Who may take out originating summons and in respect of
what matters.-The executors or administrators of a deceased person,
or any of them, and the trustees under any instrument or any of them,
and any person claiming to be interested in the relief sought as creditor,
legatee, heir, or legal representative, or as beneficiary under the trusts
of any instrument, or as claiming by transfer, or otherwise, under any
such creditor or other person as aforesaid or the surety of an executor or
administrator may take out, as of course, an originating summons,
returnable before the Judge sitting in Chambers, for such relief of the
nature or kind following, as may by the summons be specified, and the
circumstances of the case may require (that is to say), the determination
without an administration of the estate of trust of any of the following
questions or matters :--
(a) any question affecting the rights or interest of the person claiming to
be creditor, legatee, heir, or legal representative, or beneficiary;
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(b) the ascertainment of any class of creditors, legatees, legal
representatives or others;
(c) the furnishing of any particular accounts by the executors,
administrators, or trustees, and the vouching (where necessary) of
such accounts;
(d) the payment into Court of any moneys in the hands of the executors,
administrators or trustees;
(e) directing the executors, administrators or trustees to file any
account and vouch the same or to do, or abstain from doing, any
particular act in their character as such executors, administrators or
trustees;
(f) the approval of any sale, purchase, compromise or other
transaction;
(g) the determination of any question arising in the administration of
the estate or trust."
27. Rules 1 and 2, in fact, supplement each other, inasmuch as Rule 2
covers the administration of the estate of trusts and a deceased person
whereas administration of the estate of trust is specifically excluded
from determination under Rule 1.
28. The term "such relief" in Rule 1 is qualified by the expression "of the
nature or kind following", where after such relief has been confined to
the determination of the questions or matters as stipulated in Clauses
(a) to (g). The very nature of the language in which the said Clauses are
couched indicate that the determination of the questions or matters are
in the nature of declarations. Although Clause (c) envisages furnishing
of particular accounts, Clause (d) payment of moneys and Clauses (e)
and (f) directions on the executors from doing any particular act in their
capacity as executors, administrators or trustees and the approval of
any sale, purchase, etc., respectively, the said Clauses are
circumscribed by the overarching prelude in Rule 1, confining such
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exercise to the "determination", without administration of the estate of
the trust, of the questions or matters following thereafter.
29. Seen in such perspective, it cannot be said that OS suits under
Chapter XIII can be equated with a regular civil suit. Even if in certain
categories of suits summary proceeding is permitted, nonetheless, the
suit retains the character of a regular civil suit, as exemplified by
Chapter XII of the Original Side Rules of this Court.
30. The above view is strengthened by Rule 23 of Chapter XIII, which
specifically excludes the operation of Order II Rule 2 of the Code of Civil
Procedure. Such exclusion would not be incorporated in Chapter XIII if
all reliefs, as can be claimed in a regular civil suit, could be claimed in
an OS proceeding.
31. Rule 2 of Order II of the Code precludes the plaintiff from suing
subsequently in respect of claims which have been omitted in a suit.
Thus, unless the nature of the reliefs to be granted under Rule 1 of
Chapter XIII was in the nature of a mere declaration without other
reliefs, there would be no necessity of excluding Order II Rule 2. If all
types of reliefs as in a regular suit could be claimed in an OS, the
rigours of Order II Rule 2 of the Code would definitely apply, because
the plaintiff would then have the option of omitting particular reliefs,
although arising out of the same cause of action. Only because the
range of reliefs available in an OS are truncated and restricted to
declaratory reliefs, given the shape of a decree by dint of Rules 20 and
21 of Chapter XIII, and a plaintiff runs the risk of being relegated to a
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regular suit if complicated questions of fact requiring elaborate
evidence are involved, there is the necessity of excluding the operation
of Order II Rule 2 of the Code to protect the plaintiff from being barred
by such provision if it is relegated to a regular suit, where the plaintiff
can claim other reliefs along with declaratory reliefs.
32. The very scheme of things in the Original Side Rules is designed in
such a manner that in cases where an Originating Summons is issued,
and upon hearing, questions as contemplated therein are determined
and a declaratory decree is passed, the parties, in case of further
disputes, would be relegated to a regular suit, where other claims could
be made.
33. In the alternative, if the Judge is of the opinion that the reliefs sought
cannot be disposed of in a summary manner, in terms of Rule 18 of
Chapter XIII, he may refuse to pass any order on the summons, may
dismiss the same and refer the parties to a suit in the ordinary course.
The expression "refer the parties to a suit in the ordinary course", by
necessary implication, means that an OS proceeding is not one.
34. Under Rule 20 of Chapter XIII, the Judge may pronounce such
judgment, "as the nature of the case shall require", and no further. The
"nature of the case" is determined by Rules 1 and 2, which are the
guiding lights of Chapter XIII in its entirety.
35. As per Rule 21, the Judge may give any special directions touching the
carriage or execution of a decree which is drawn up under Rule 20 on
the basis of an order passed. Merely because a "decree" and
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"execution" thereof is contemplated, however, does not mean that
reliefs other than declaration can be granted in an OS. It may be kept
in mind that even declaratory decrees can be executed, the modes of
which are amply provided in Order XXI of the Code of Civil Procedure.
36. Rule 17 of Chapter XIII empowers the Judge issuing an OS, where the
parties do not agree to the correctness of the facts set forth in the
affidavit, to order the summons to be supported by such evidence as he
thinks necessary and give such directions as he may think just for the
trial of any question arising thereout. The Judge may also make
amendment in the affidavit and summons as he deems to be necessary
to make them accord with the existing state of facts, so as properly to
raise the questions-in-issue between the parties.
37. However, the power to pass directions and direct evidence, and to
amend the affidavit and summons, operates within the limited
conspectus of Chapter XIII, as governed by the questions to be
determined under Rule 1 and orders to be passed under Rule 2.
Hence, such powers under Rule 17 have to be construed in the light of
the scope of adjudication in Chapter XIII itself and per se, does not
expand the scope of such adjudication. The "evidence" and "directions"
contemplated in Rule 17 have, thus, to operate within the framework of
adjudication under Chapter XIII.
38. There are two options left to the Judge issuing OS, both of which arise
only upon service of summons and at the stage of hearing.
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39. Under Rule 18, where it appears to the Judge that the matters in
respect of which relief is sought cannot be disposed of in a summary
manner, he may refuse to pass any order and may dismiss the
summons and refer the parties to a suit in the ordinary course.
40. On the other hand, under Rule 20, where the Judge is of the opinion
that the matter is fit to be dealt with on an OS, he may pronounce such
judgment "as the nature of the case shall require", in which event any
order made by him shall be drawn up as a decree of the court.
41. Hence, the exercise of discretion by the Judge regarding whether the
matter is fit to be dealt with on an OS and to pronounce judgment is
circumscribed by the "nature of the case". Therefore, the scope of such
exercise relates back to the foundational powers as conferred under
Rule 1 or Rule 2 of Chapter XIII, whichever is applicable.
42. In the present case, admittedly, Rule 1 of Chapter XIII has been
resorted to and, as such, the scope of consideration is confined to
orders in the nature of declaratory decree on the said questions.
43. It is well-settled that interim reliefs of a nature greater than the final
relief or beyond the scope of the final relief cannot be granted in any
suit/proceeding or adjudicatory process. Hence, in the instant case, by
issuance of an ad interim order of injunction, the learned Single Judge
has traversed beyond his jurisdiction and touched the corporeal rights
in respect of tangible immovable and movable properties which, stricto
sensu, fall outside the ambit of determination of questions and matters
within the contemplation of Rules 1 of Chapter XIII of the Original Side
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Rules. The scope of Rule 1, it is reiterated, is confined to the
determination of the questions or matters stipulated in Clauses (a) to
(g) "without an administration of the estate of trust". Hence, such
power is limited to the determination of the questions and not to grant
of reliefs touching the estate of the trust.
44. In State Bank of India (supra)1, contrary to the observations of the
learned Single Judge in the present impugned order, the ad interim
injunction granted by the learned Single Judge there was set aside by
the Division Bench. However, such setting aside was on the ground
that there were inconsistencies between the OS and the affidavit in
support thereof, without expressing any opinion as regards the grant of
interlocutory relief.
45. A scrutiny of excerpts from the said report would be fruitful in the
present context. In paragraph no. 3 of the judgment, the Division
Bench observed that Chapter XIII of the Original Side Rules of this
Court provide a special procedure by way of Originating Summons
which had its origin in English Rules of Supreme Court. This, it was
held, is undoubtedly a suit in the Original Side, but cannot be equated
with it, since under the Rules, questions are framed for the purpose of
being answered by this Court and the Court in its turn considers as to
whether the questions are within the ambit of the Rules of the Original
1. State Bank of India v. Mohuragang & Gulam Tea Estate & Anr., reported at 1988 SCC OnLine Cal 124
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Side and can be conveniently dealt with by way of an Originating
Summons.
46. In paragraph no. 31 of the report, while discussing an English decision
authored by Astbury, J. in Leicester Corporation's case, the Division
Bench noted that in the event of there being a question of fact, the
matter ought not to be dealt with by way of an Originating Summons.
47. In paragraph no. 32, while considering another Chancery decision, it
was noted that it would be very wrong to decide the questions regarding
priority of mortgages in those informal proceedings. This mode of
procedure (Originating Summons), it was held, is better to decide
matters which are not of an involved nature, and not questions which
may require considerable discretion, for which purpose Originating
Summons were observed to be utterly inappropriate.
48. The Division Bench, in paragraph no. 35 of the report, further observed
that questions (b), (c) and (d) as raised by the plaintiff therein, on a
close scrutiny, involved certain amount of evidence which, in view of
the court, would be inexpedient to deal with in an OS.
49. In paragraph no. 36, it was further observed that OS is available to
proceedings which are not of an involved nature and on which there
would hardly be any scope for any oral evidence. While it was held to
be true that the court has power to have even oral evidence, in the view
of the Division Bench, the same ought not to extended to any suit
under Chapter XIII, otherwise the Code of Civil Procedure would have to
be given a complete go-bye. Needless to say, the Code of Civil
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Procedure, it was held, prescribes certain forms of decree which are not
available to an OS. It was highlighted that the questions raised therein
were not pure questions of law but of fact which ought not to be raised,
agitated and dealt with under an OS. The Division Bench expressed
the opinion that OS under Chapter XIII was not the proper mode in
such cases and such disputes cannot be adjudicated only upon
interpretation by way of a construction of the deed-in-question but
were obviously matters of fact. Quoting Daniel's Chancery Practice (8th
Edition, Vol. I), the Division Bench observed that the object of the order
is to enable the court to decide questions of construction where the
decision will settle the litigation between parties - not questions which
if decided one only will do so.
50. Thus, from a comprehensive reading of the judgment cited before the
learned Single Judge, it is palpably clear that the scope of an OS suit,
unlike a regular civil suit, is not only of a summary nature but confined
to pure questions of law. For such purpose, to determine the questions
involved, the court has the power to direct further evidence by affidavit
and to pass such directions with regard to trial or mould the affidavit
and summons in accord with the existing state of facts, but for the
limited purpose of raising the question/issue between the parties
within the contemplation of Rule 1. Rule 17 does not expand the scope
of adjudication beyond Rules 1 and 2, which are the determinants in
that regard.
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51. The learned Single Judge also referred to an order dated August 29,
2024, passed by the same learned Single Judge. However, the said
judgment was not relied on as such in the impugned order, nor was
any proposition of law laid down therein.
52. It may also be noted that no relief in the nature of injunction or, for
that matter, any relief touching the estate of the trust or any property,
movable or immovable, has been sought by way of reliefs in the
Originating Summons or the supporting affidavit in the present case.
Also, no interim application was filed in connection with the proceeding
before the learned Single Judge, nor was any final or ad interim relief in
the nature as granted by the impugned order sought by the
plaintiff/respondent at all.
53. In fine, we are of the considered opinion that the learned Single Judge
erred in law in exercising jurisdiction not vested in him by passing an
order of injunction touching the administration of the estate of the
trust as well as the corporeal rights in property, movable and
immovable, which is beyond the scope of Originating Summons under
Chapter XIII of the Original Side Rules of this Court, particularly in the
context of Rule 1 thereof, which has been invoked by the
plaintiff/respondent.
54. Accordingly, A.P.O.T. No. 223 of 2025 is allowed on contest, thereby
setting aside the impugned judgment dated August 1, 2025 passed in
C.S.O.S. No. 4 of 2025.
55. Consequently, GA 1 of 2025 stands dismissed as well.
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56. There will be no orders as costs.
57. Urgent certified copies, if applied for, be supplied to the parties upon
compliance of due formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)
