Chattisgarh High Court
Matuk Lal Soni (Died) Through Lrs vs Sriram Janki Bade Mandir Trust ... on 1 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.125 of 2008
Reserved for judgment on : 28/04/2022
Delivered on : 01/07/2022
1. Matuk Lal Soni (Died) Through Lrs As Per Honble Court Order Dated
14-06-2021.
1.1 - Suresh Kumar Soni S/o Late Matuk Lal Soni Aged About 53
Years R/o. Sarafa Line Takhatpur, Tahsil Takhatpur, Distt. Bilaspur
Chhattisgarh.
1.2 - Smt. Lata Soni D/o Late Matuk Lal Soni Aged About 50 Years
W/o Shri Virendra Soni, R/o. Sonarpara, Mungeli, Distt. Mungeli,
Chhattisgarh.
1.3 - Dinesh Soni S/o Late Matuk Lal Soni Aged About 48 Years R/o.
Near Police Thana, Takhatpur, Tahsil Takhatpur, Distt. Bilaspur
Chhattisgarh.
1.4 - Smt. Sarita Soni D/o Late Matuk Lal Soni Aged About 46 Years
W/o Shri Birval Soni, R/o Sonarpara, Lormi, Distt. Mungeli
Chhattisgarh.
1.5 - Naresh Soni S/o Late Matuk Lal Soni Aged About 43 Years R/o
Near Police Thana, Takhatpur, Tahsil- Takhatpur, Distt. Bilaspur
Chhattisgarh.
1.6 - Smt. Jyoti Soni D/o Late Matuk Lal Soni Aged About 40 Years
W/o Shri Narend Soni, R/o Pathariya, Damda, Distt. Mungeli
Chhattisgarh.
---- Appellants
Versus
• Sriram Janki Bade Mandir Trust Samiti Sarafa Line Takhatpur, Tahsil
Takhatpur, Distt. Bilaspur Chhattisgarh.
---- Respondent
For Appellants : Mr. C. K. Kesharwani, Advocate &
Mr. Anukul Biswas, Advocate
For Respondent : Mr. Malay Shrivastava, Advocate &
Ms. Isha Jaijodia, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. This is Defendants' Second Appeal filed under Section 100 of CPC
against the judgment and decree dated 06.11.2007, passed by 1 st
Additional District Judge, Bilaspur, in Civil Appeal No.08-A/2007,
affirming the judgment and decree dated 28.1.2006 passed by
Second Civil Judge, Class-I, Bilaspur in Civil Suit No. 160-A/2005, by
which, the plaintiff's suit has been decreed.
2. This second appeal was admitted on the following substantial question
of law on 16.04.2008: -
"Whether the plaintiff being an unregistered public trust was
competent to institute the suit in view of the prohibition
contained in Section 32 of the Madhya Pradesh Public
Trust Act?"
3. For sake of convenience, parties hereinafter will be referred as per
their status shown and ranking given in the plaint before the trial
Court.
4. The plaintiff Trust filed suit for eviction and arrears of rent against the
defendant stating inter alia that the defendant is tenant of the suit
accommodation situated at Shri Ram Jannki Trust Samiti, Bilaspur,
(Room No. 2) on monthly rent of ₹ 01/-, which was enhanced to ₹ 50/-
per month, thereafter a rent contract was executed between the Trust
and the tenant on 24.03.2000 and on the said contract rent was fixed
₹ 50/- per month but he has stopped paying rent from May, 2001,
therefore, the Trust has resolved to get the suit accommodation
vacated and consequently, notice dated 11-8-2001 was served upon
him, yet he has not vacated the suit accommodation and as such, the
plaintiff Trust is entitled for eviction and arrears of rent which the
defendant opposed stating that the plaintiff Trust is an unregistered
trust and its President is not entitled to file suit and the suit
accommodation is not required bona fidely.
5. The trial Court after appreciation of oral and documentary evidence on
record held that it has not been proved that the plaintiff is a registered
Trust, but Shyamji Dewangan, as a President of the plaintiff Trust has
right to file suit on behalf of the plaintiff Trust; relationship of landlord
and tenant between the plaintiff and the defendant is established; and
the suit accommodation is required bona fidely and thereby decreed
the suit. Against which, the defendant preferred first appeal before the
first appellate Court. The First Additional District Judge, Bilaspur has
affirmed the judgment and decree of the trial Court, against which
substantial question of law has been formulated which has been set-
out in the opening paragraph of this judgment.
6. Learned counsel appearing for the LRs of the original defendant /
appellants herein submits that since the plaintiff Public - Trust was an
unregistered trust, therefore, there was bar for hearing and deciding
the suit on merits in view of the bar created under Section 32 of the
Chhattisgarh Public Trusts Act, 1951 (henceforth, 'the Act of 1951')
and relied upon the judgment of the Supreme Court in the matter of
Public Trust Shri Geeta Satsang Bhawan v. Nand Lal and others 1
and, therefore, the appeal deserves to be allowed and judgments and
decrees for the trial Court, as affirmed by the first Appellant Court
deserves to be set-aside.
7. Learned counsel appearing for the plaintiff / respondent herein
submits that the defendant did not raise any specific plea of bar under
Section 32 of the Act of 1951, rather he waived such an objection by
participating in the hearing of the suit and therefore squeezed the said
objection and that would amount to waiver of the objection of Section
32, if any, and virtually, the plaintiff is a registered trust registered way
back on 20-6-1956. He would further submit that the plaintiff has filed
the certificate of registration of the Trust which could not be filed
earlier.
8. I have heard learned counsel for the parties and considered their rival
submissions made herein-above and also went through the record
with utmost circumspection.
9. The appellant during pendency of the appeal has filed a application for
permission to raise additional ground contending that the judgment
and decree passed by learned trial Court and affirmed by appellate
Court is perverse as appellant has constructed the house and shop
over the Abadi land just near the Trust land as such plaintiff has no
right to claim over the suit property. The appellant has also filed an
application under Order 41 Rule 27 of CPC for taking additional
evidence by way of documents i.e. map of Taktapur Tahasil, Khashra
Panchshalla, receipt of municipal corporation, Taktapur. The appellant
has also filed an application under Order 6 Rule 17 CPC for
amendment in the written statement filed before learned trial Court.
The learned counsel for respondent has not filed any reply to the said
application but orally objected it and would submit that application is
not relevant for deciding the list between the parties but it amounts to
1 (2018) 12 SCC 222
raise new ground which has not been taken before the learned trial
Court or before learned appellate Court, therefore, he can not raise
such ground and would pray for dismissal of the said applications filed
by the appellants.
10. The application for permission to raise another ground, it is quite vivid
that such grounds were earlier taken by the appellants before the
Court below nor any foundation for raising such grounds was raised
by the Court below but extremely new ground has been raised which
is not permissible in view of bar contained in the Civil Procedure Code
while deciding the second appeal by this Court, therefore, the
application for permission to seek new ground is rejected.
11. Also heard on application under Order 41 Rule 27 of CPC for taking
additional evidence on record. The learned counsel for the appellants
is unable to point out its relevancy for deciding the lis between the
parties and also unable to explain the belated submission of the
documents, therefore, this application is rejected.
12. Also heard on application for amendment in the written Statement.
From bare perusal of the application it is quite clear that appellant by
way of present applications intend to make a new case therefore, the
learned trial Court and by way of proposed amendment it changes the
nature of the case which cannot be considered. At this juncture,
accordingly the said application is also rejected.
13. In order to resolve the instant dispute, it would be appropriate to notice
Section 32 of the Act of 1951 which states as under: -
"32. Bar to hear or decide suits.-- (1) No suit to enforce a
right on behalf of a public trust which has not been
registered under this Act shall be heard or decided in any
court.
(2) The provisions of sub-section (1) shall apply to
claim or set off or other proceeding to enforce a right on
behalf of such public trust."
14. A careful perusal of the aforesaid provision would show that it creates
a bar against the public trust which is required to be registered under
the Act. The bar is with regard to hearing and deciding of any suit,
claim or set off or any other proceeding to enforce a right on behalf of
such a public trust. The intention of creating such a bar appears to be
that such trusts are discouraged in working without registration under
the Act.
15. The Madhya Pradesh High Court in the matter of Kesa alias
Keshuram and others v. Kalu Devaji and others2 while highlighting
the object behind enacting Section 32 of the Act of 1951 held that it
does not bar any suit being filed against the unregistered public trust
and observed as under:-
"2. Section 32 of the Madhya Pradesh Public Trusts Act
provides that no suit to enforce a right on behalf of a public
Trust which has not been registered under the Act shall be
heard or decided by any Court. This section does not
prohibit any suit being filed against the public Trust. If this
is so, it must be held that if any decree is passed against
the public Trust, it will have a right to challenge the same in
appeal and that would not be treated as any attempt to
enforce a right on behalf of the public Trust. There is,
therefore, no question of the appeal being stayed till the
public Trust is registered under the Madhya Pradesh Public
Trusts Act. If the right to appeal is denied to the public
Trust, which is made the defendant, it would create a very
anomalous situation. All sorts of unwarranted decrees
would be obtained against the public Trust and it would be
denied the right to challenge the validity of the decrees only
for the reason that the Trust was not registered. Apart from
this I do not find any justification for vacating the stay order
already named by the lower appellate Court. If the hearing
of the appeal was to be stayed, it was also necessary that
the execution of the decree should be stayed. ..."
16. In the matter of Jawaharlal Chunnilal v. Ramkrishna Malik @
Jafarmal3 the High Court of Madhya Pradesh has clearly held that the
bar provided by Section 32 of the M.P. Public Trusts Act, 1951 is
against the hearing or deciding of suits or appeals and not against
their institution. Therefore, where an objection to the tenability of a
suit filed on behalf of the trust on the ground of its non-registration as
a public trust is successfully raised, the procedure to be adopted
should be to stay the decision on merits to enable the party to obtain
its registration.
17. The Supreme Court also in Public Trust Shri Geeta Satsang
Bhawan (supra) while dealing with identical provision contained in
Section 29 of the Rajasthan Public Trusts Act, 1959 and considering
the scope and ambit of Section 29 of the said Act, held that bar is only
for hearing and deciding the suit on merits and once the trust is
registered, bar stands lifted and ceases to apply to the proceedings in
the suit and the bar is only with regard to hearing and deciding the suit
2 1973 JLJ 918
3 1962 MPLJ 461
on merits. It has been observed by their Lordships as under: -
"21. A fortiori, the moment the trust is registered under the
Act, the trial court would assume the jurisdiction to hear
and decide the suit on merits. The bar created under
Section 29 of the Act for "hearing and deciding" the suit is
then lifted and ceases to apply to the proceedings in the
suit.
22. As mentioned supra, since the appellant (plaintiff)
Trust was registered under the Act on 7-2-2013, they
acquired a right to prosecute the suit on merits against the
respondents. The bar created under Section 29 then would
no longer operate to the proceedings in the suit. In our
opinion, the trial court was, therefore, wholly unjustified in
proceeding to hear and decide the suit on merits by
passing a judgment/decree. It failed to see the rigour of
Section 29 which had taken away the jurisdiction of the trial
court in hearing and deciding the suit.
26. First, the decree passed by the trial court was on the
face of it without jurisdiction having been passed in
contravention of Section 29 of the Act; second, the Civil
Court had no power to hear and decide the suit by virtue of
the bar created under Section 29 of the Act; and third,
admittedly the Trust was not registered on the date of filing
of the suit and remained unregistered till the judgment was
delivered by the trial court. It is for these reasons, the
decree passed by the trial court is without jurisdiction and
has to be set aside."
18. Reverting to the facts of the present case in light of the provision
contained in Section 32 of the Act of 1951 as interpreted by the
Madhya Pradesh High Court and the Supreme Court in the aforesaid
cases (supra), it is quite apparent that firstly, the original defendant did
not in specific terms raised any objection in the written statement that
the suit is barred by Section 32 of the Act of 1951 and therefore
hearing of suit cannot proceed and the court should stay its hand in
light of the provision contained in Section 32 of the Act, rather it would
be apparent from the face of the record that the defendant without any
objection allowed the proceeding to continue and participated in the
trial of the suit and invited judgment by taking a calculated chance and
ultimately, though the trial Court has held that the Trust is not
registered, yet held that the suit was filed by competent person i.e. its
President and decreed the suit. Not only this, when first appeal was
preferred by the defendant before the first appellate Court, he also did
not raise any specific objection in this behalf that the suit was not
maintainable in light of Section 32 of the Act of 1951 and challenged
the appeal on merits, and when the appeal was dismissed, for the first
time, plea based on Section 32 of the Act of 1951 has been taken.
19. The fact remains that such a plea of hearing and decision of suit is
barred was not taken at the first available opportunity before the trial
Court and secondly, the defendant has participated in that suit before
the trial Court without demur and objection and thereby waived such
an objection and when the suit was decreed and it was affirmed in first
appeal, in second appeal the said point has been taken which cannot
be entertained at the second appellate stage, particularly in view of
the fact that no such plea was taken before the two Courts below and
further in view of the fact that the said Trust is already a registered
Trust registered as back as in the year 1956. It is a public document
and copy of the registration of public trust has been brought to record
and as such, no exception can be taken to the judgment & decree of
the trial Court duly upheld by the first appellate Court. The substantial
question of law is answered accordingly in favour of the plaintiff.
20. In view of the foregoing discussion, the second appeal, being devoid
of substance, is liable to be and his hereby dismissed leaving the
parties to bear their own cost(s).
21. A decree be drawn-up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Amita
