Delhi High Court
Dashmesh Hospital & Ors vs Harpal Singh & Ors on 30 January, 2018
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th January, 2018
+ C.R.P. 31/2015 and CM 4353/2015
DASHMESH HOSPITAL & ORS ..... Petitioners
Through: Mr. H.S. Phoolka, Sr. Advocate
with Mr. Daljinder Singh, Mr. Udit and Ms.
Shilpa Dewan, Advocates
versus
HARPAL SINGH & ORS ..... Respondents
Through: Mr. Harpreet Singh Popli, Mr.
Mukul Girdhar and Mr. Anuj Yadav,
Advocates for R-1 to 5
Mr. Gautam Narayan, ASC with Mr. R.A.
Iyer, Advocate for R-6
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petition at hand invokes the revisional jurisdiction of this
court under Section 115 of the Code of Civil Procedure, 1908 (CPC)
to bring a challenge to the order dated 22.01.2015 passed by the
Additional District Judge on the application under Section 92 of the
CPC presented by the first to fifth respondents herein seeking leave to
institute a civil suit (CS 81/2014) for necessary reliefs concerning the
second petitioner, a public charitable trust alleging mis-management
of its affairs, particularly such as concerning the functioning of a
hospital (first petitioner) run by it.
2. The aforesaid respondents (now plaintiffs of the suit) had
described themselves in the application under Section 92 of the CPC
as individuals residing in the vicinity of the hospital availing of its
facilities tendered free of cost by the public charity and being
concerned about the mis-management since it affects them as
beneficiaries. The petitioners had resisted the application for grant of
leave under Section 92 of the CPC by a reply, the prime objection
taken being to the locus standi of the applicants, submissions also
being made to the effect that there was no cause of action arising
against the backdrop of facts pleaded, Major Gian Singh, one of the
trustees appointed by the Deed of Public Charitable Trust dated
02.01.1998 whereby the trust was established being instead guilty of
certain misdemeanors including embezzlement of the funds of the
trust. The Additional District Judge rejected the opposition by the
petitioners and by the impugned order dated 22.01.2015 granted the
leave under Section 92 CPC.
3. The learned senior counsel arguing for the petitioners placed
reliance on decisions of the Supreme Court in Mahant Harnam Singh
Vs. Gurdial Singh and Anr., AIR 1967 SC 1415 and Vidyodaya Trust
Vs. Mohan Prasad R. and Ors., (2008) 4 SC 115 and of a learned
single judge of this court reported as Vinay Rai and Anr. Vs. Ram
Krishan and Sons Charitable Trust & Ors., 165 (2009) DLT 255. The
prime thrust of his argument was that the petitioners do not qualify as
the persons at those instance a suit concerning the public charity can
be allowed to be instituted, they not being able to show "having an
interest in the trust". It was argued that a case of dishonest intention
or lack of probity is sine qua non for such leave under Section 92 to be
granted. It was the argument of the petitioners that the respondents
have no genuine interest or intent to protect the public right of the
beneficiaries, they being only the mouth-piece of Major Gian Singh,
the petition having been instituted by them on the close heels of his
removal from the board of trustees on 09.09.2012. The submission of
the learned senior counsel was that the court must go beyond the
reliefs claimed and examine if the endeavour of the plaintiffs of the
suit is to vindicate the public rights or agitate purely private dispute
under the cover of legitimacy.
4. As observed in All India Women's Conference & Ors. Vs. Sarla
Shah & Ors., (2004) 13 SCC 402, the basic ingredients which must be
met to obtain relief under Section 92 CPC are : (i). the existence of a
public trust; (ii). allegations of breach of trust; and (iii). the necessity
to issue directions for administration of the trust. There is no doubt
that the dispute concerns a public trust. There is no denial of the fact
that the public trust runs the hospital offering free medical aid to the
people at large. The petitioners case that they are the beneficiaries
being local residents cannot be disbelieved without affording to them
an opportunity to prove the said contentions.
5. While it is true that in the application for leave to institute a
case with regard to the mismanagement of the public trust, the
averments set out were cryptic but the facts remains that the plaintiff
did allege before the Additional District Judge that the funds of the
trust were being embezelled or mis-managed. Though an impression
is gained that the plaintiffs may have been speaking on the strength of
the complaint made by Major Gian Singh and therefore, at his
instance, by the averments made in the reply submitted by the
petitioners themselves, the allegations of embezzlement of the funds
have been confirmed. This indeed is a cause for concern and makes
out a case for the court to step in.
6. One of the possible areas where the civil court dealing with the
case would have to traverse is the retrieval of the property of the trust
from the persons who may have taken unauthorized control thereof. It
may be that Major Gian Singh was removed from the board of
trustees by the petitioners against the backdrop of revelation that he
had started taking decisions on his own without the knowledge or
permission of the members of the trust; had purchased Swift Car in his
own name for his personal use from the funds of the hospital and
chemist shop; or diverted funds by opening bank Accounts, and had
indulged himself to take control of even two fixed deposit receipts of
more than Rs.1,00,00,000/- (one crore) each. It also may be that the
petitioners had lodged a criminal case against him for such dishonest
acts of commission and omission which concededly affected the
management of the hospital. But no efforts having been made to
retrieve the assets of the properties of the trust from his hands, it
cannot be said that the trust or its board of trustees have taken all the
corrective measures.
7. In the given facts and circumstances, it cannot be said that the
dispute brought before the court by the plaintiffs is intended to settle
personal scores. Being local residents and beneficiaries of the hospital
run by the trust, the plaintiffs have prima facie shown that they are
persons having an interest in the trust and, therefore, competent to
seek the leave under Section 92 of the CPC.
8. Given the facts concerning the mis-management of the funds of
the trust, as confirmed in reply by the petitioners themselves, there is
no reason why the impugned order should be interfered with.
9. The petition and the pending application are dismissed.
R.K.GAUBA, J.
JANUARY 30, 2018
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