Muhammad Azhar Ali vs Abdul Razzaq Bidri And Ors
2021 Latest Caselaw 3259 Kant

                                                              R
            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 31ST DAY OF AUGUST 2021

                             BEFORE

 THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

     CIVIL REVISION PETITION No.200007 OF 2018

BETWEEN:

Muhammad Azhar Ali,
S/o. Late Md. Sultan,
Aged about 45 years,
Occ: Business,
R/o. House No.E-41-1768,
Vidyanagar Colony,
Kalaburagi - 585 103.
                                              .. Petitioner
( By Sri. Ameet Kumar Deshpande, Advocate )

AND:

1.     Abdul Razzaq Bidri
       S/o. Abdul Aziz Bidri
       Age about: 48 years,
       Occ: Business,
       R/o. H.No.5, Vidya Nagar,
       Kalaburagi.

2.     Muhammad Abdul Saleem
       S/o. Muhammad Abdul Kareem,
       Age about: 48 years, Occ: Business,
       R/o. MSK Mill, Jeelanabad,
       Kalaburagi.
                                            C.R.P.No.200007/2018
                                2




3.   Muhammad Hameed
     S/o. Muhammad Aziz,
     Age about: 47 years,
     Occ: Employee,
     R/o. Op. Flora Public School,
     New Raghavendra Colony,
     Kalaburagi.

4.   Abdul Asad Maniyar,
     S/o. Abdul Rahman Maniyar,
     Age about: 48 years, Occ: Business,
     R/o. H. No.188,
     Vidya Nagar Colony,
     Kalaburagi.

5.   Syed Altaf Ali S/o. Syed Mastan,
     Age about: 46 years, Occ: Nil
     R/o. H. No.192, Vidya Nagar Colony,
     Kalaburagi.

6.   Syed Asif Ali Siddique
     S/o. Syed Yousuf Ali Siddiqui
     Age about: 43 years, occ: Business,
     R/o. Galib Colony,
     Behind Qadeer Function Hall,
     MSK Mill Area, Kalaburagi.

7.   Syed Yaqub Ali S/o. Syed Riyaz Ali,
     Age about: 43 years, Occ: Business,
     R/o. H. No.T-4-1041/121/C
     Madina Colony, Green Circle,
     Kalaburagi.

8.   Ahmed Hussain Soudagar,
     S/o. Shaik Modeen Soudagar,
     Age about: 53 years, Occ: Business,
     R/o. Besides Flora Public School,
     New Raghavendra Colony,
     Kalaburagi.
                                                   C.R.P.No.200007/2018
                                  3




9.    Naseem Khanam W/o. Md. Khan,
      Age about: 40 years, Occ: Household,
      R/o. H. No.11-1041/43/1, Misbah Chowk,
      Near Cold Storage, Madina Colony,
      Kalaburagi.
                                           .. Respondents

(By Sri. Syed Fayazuddin, for Sri. Liyaqat Fareed Ustad,
Advocate for R-1 to R-3; R-4 to R-6 and R-8 - served, but
Un-represented; Notice to R-7 - held sufficient vide order
Dated 16-01-2019; Notice to R-9 - held sufficient vide
Order dated 17-07-2018)

                                ****

       This Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, 1908, praying to allow the revision
petition, call for records and set aside the order dated 31-01-2018
passed on I.A.No.2 by the defendant No.4/revision petitioner
herein under Order 7 Rule 11(d) in O.S.No.238/2017 by the Court
of the III Additional Civil Judge at Kalaburagi, the certified copy of
which is at Annexure A and to pass any other appropriate orders,
in the interest of justice.

      This Civil Revision Petition having been heard through
Physical hearing/Video Conferencing Hearing and reserved for
orders on 12-08-2021, coming on for pronouncement, this day,
the Court made the following:

                             ORDER

The present petitioner is defendant No.4 in the Original Suit

No.238/2017, instituted by the present respondents No.1 to 3, as

plaintiffs, for the relief of declaration and perpetual injunction in

the Court of the learned III Additional Civil Judge, Kalaburagi, at C.R.P.No.200007/2018

Kalaburagi (hereinafter for brevity referred to as "the Trial Court").

The present respondents No.4 to 6 are the defendants No.1 to 3

and present respondents No.7 to 9 are the defendants No.5 to 7 in

the said suit in the Trial Court.

2. After the appearance of the defendant No.4 (present

petitioner) in the Trial Court, before filing his written statement, if

any, he filed an interlocutory application - I.A.No.II under Order

VII, Rule 11(d) of the Code of Civil Procedure, 1908, (hereinafter

for brevity referred to as "the CPC"), seeking rejection of the plaint

as barred by law. After hearing both side, the Trial Court, by its

order dated 31-01-2018, dismissed the said interlocutory

application- I.A.No.II. Aggrieved by the same, the applicant in

the said Interlocutory Application - I.A.No.II (defendant No.4) has

filed the present revision petition.

3. The respondents No.1 to 3 are being represented by their

learned counsel, respondents No.4 to 6 and 8, though have been

served, but still remained un-represented. The service of notice

against respondents No.7 and 9 was held sufficient.

C.R.P.No.200007/2018

4. Learned counsel for the revision petitioner is physically

appearing in the Court and learned counsel for the respondents

No.1 to 3 is appearing through video conference. Heard the

arguments from both side. Perused the materials placed before

this Court, including the memorandum of revision petition and the

impugned order passed by the Trial Court.

5. After hearing the learned counsels from both side and

after going through the material placed before this Court, the only

point that arise for my consideration is this revision petition is:

Whether the impugned order suffers from any illegality, irregularity or impropriety, warranting interference at the hands of this Court?

6. The undisputed fact remains that, the present

respondents No.1 to 3 as plaintiffs, have filed an Original Suit in

O.S.No.238/2017, in the Trial Court, against the defendants

therein, including the present petitioner (defendant No.4), for

declaration and perpetual injunction. In a nutshell, the

contention of the plaintiffs in their plaint is that, the "AL-NIDA-E-

ISLAM EDUCATIONAL AND CHARITABLE TRUST" (hereinafter C.R.P.No.200007/2018

referred to as "the Trust") is a recognised Minority

Public Trust. The plaintiffs No.1 to 3 are the Trustees for life, and

defendants No.1 to 4 are also the Author of the Principal Trust.

However, defendants No.5 to 7 were co-opted as new member

trustees to the Trust under an alleged registered Supplementary

Deed of Trust on 10-04-2003. The defendants, without the notice

and knowledge of the plaintiffs, by passing resolutions dated

15-01-2015 and 15-02-2015, removed the plaintiffs from their

respective posts in the Trust, which post of Chairman/President,

Principal Trustee and the Treasurer, the plaintiffs 1 to 3 were

respectively holding. The defendants also approached the

concerned Banks to incorporate their names in the bank account.

With these plaint averments, the plaintiffs have sought for the

following prayer in their plaint:

"a. It be declared that, the resolution dated 15-01-2015 and 15-02-2015 are illegal, not binding on the plaintiff.

b. It be declared that supplementary deed of trust document No.526/2014-15 dated 05-03-2015 is illegal, non est and not binding on the plaintiffs.

c. The defendants may kindly be restrain from in the affairs of the Trust in the absence of the plaintiffs.

C.R.P.No.200007/2018

d. Under the facts and circumstances of the case for which the plaintiffs are entitle may kindly granted.

e. Cost of the suit may awarded."

7. The present petitioner who is the defendant No.4 in the

Original Suit before the Trial Court, after his appearance, did not

file his written statement, but filed an Interlocutory Application-

I.A.No.II, under Order VII, Rule 11 (d) of the CPC, seeking

rejection of the plaint as barred by the provisions of Section 34 of

the Indian Trusts Act, 1882 (hereinafter for brevity referred to as

"the Trusts Act") and also Section 92 of the CPC.

In the said application, the applicant/defendant

No.4/petitioner herein contended that, the contention of the

plaintiffs is in respect of the management of a Trust and Trust

property and in such a case, Section 34 of the Trusts Act is

attracted. Therefore, the suit filed under Order VII, Rule 1 read

with Section 26 of the CPC is not maintainable. It is also

contended that, as stated by the plaintiffs, the acts of the

defendants are against the provisions of Section 92 of the CPC, as

such, for the alleged violation of Section 92 of the CPC, a suit C.R.P.No.200007/2018

would lie to the Principal Court of the Original jurisdiction. As

such also, the suit before the Trial Court was barred by law.

8. The plaintiffs filed their statement of objections to the

said I.A.No.II, stating that none of the contentions of the plaint

attract either Section 34 of the Trusts Act nor they are hit by

Section 92 of the CPC, though stated that the plaintiffs' suit falls

under Section 34 of the Specific Relief Act.

9. After hearing both side, the Trial Court passed the

impugned order, rejecting the interlocutory application-I.A.No.II

filed by the defendant No. 4(petitioner herein).

10. Learned counsel for the revision petitioner in his

argument reiterated the contentions taken up by the petitioner in

the Memorandum of the revision petition. He submitted that,

admittedly, the Trust is a Public Trust. According to the

plaintiffs, they were removed from the Trust and the plaintiffs

themselves have stated that, the acts of the defendants attract

the provisions of Section 92 of the CPC and therefore, the plaint

deserves to be rejected.

C.R.P.No.200007/2018

He submitted that, in view of the Explanation [1] to Section

9 of the CPC, the right to an office is a suit of civil nature, as such,

the suit ought to have been filed in the Court of the Principal Civil

Court of Original jurisdiction, which is the District Court, as such,

the suit filed by the plaintiffs in the Trial Court is barred by law.

11. Learned counsel for the respondents No.1 to 3 in his

argument submitted that, the present suit is neither hit by the

provisions of Section 34 of the Trusts Act nor by the provisions of

Section 92 of the CPC.

12. Section 34 of the Trusts Act reads as follows :

"34. Right to apply to Court for opinion in management of trust property. - Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.

A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.

The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.

C.R.P.No.200007/2018

The costs of every application under this Section shall be in the discretion of the Court to which it is made."

A reading of the above Section would go to show that, it is

only a Trustee, who, without instituting a suit, can apply by a

petition to the Principal Civil Court of Original jurisdiction, for its

opinion, advice or direction on any present questions respecting

the management or administration of the trust property.

In the instant case, according to the plaintiffs, they are, no

doubt, the Trustees, however, by virtue of the impugned

resolutions, they have already been removed from the trusteeship

of the said Trust.

Secondly, a Trustee approaching the competent Court under

Section 34 of the Trusts Act appears to be not for any adjudication

of a dispute between himself and the other Trustees, but, it is for

an opinion, advice or direction on any present questions respecting

the management or administration of the Trust property. Thus,

the words "opinion, advice or direction" in Section 34 of the

Trusts Act gives the meaning that, it is nothing more than a

guidance by a Court for the welfare of the management or C.R.P.No.200007/2018

administration of the Trust property. If the dispute is not related

to the management or administration of the Trust property, but if

the dispute is of challenging some act or acts of some of the

Trustees as against the interest of the other Trustees, individually,

which does not affect the administration or management of the

Trust, then, Section 34 of the Trusts Act would not come into

operation. It is also for the reason that, the jurisdiction conferred

on the Court under Section 34 of the Trusts Act is a limited

jurisdiction. Under the said Section, the Court has not been

conferred with the overall jurisdiction in matters arising under a

Trust Deed. The Trusts Act has prescribed what the Court can do

and inferentially what it cannot do. The jurisdiction of the Court is

circumscribed by the provisions of Section 34 of the Trusts Act.

13. In the instant case, the plaintiffs' grievance is not that

there is any mis-management of the Trust by the defendants

affecting the very object of the Trust or that the plaintiffs are

seeking for any opinion, advice or direction on some questions

respecting the management or administration of the Trust

property by a Court. On the other hand, as already observed C.R.P.No.200007/2018

above, the plaintiffs have sought for a specific relief of declaration,

to declare that the resolutions dated 15-01-2015 and 15-02-2015

are illegal and not binding on them and also for a further

declaration that the Supplementary Deed of Trust document dated

05-03-2015 is illegal, non-est and not binding on the plaintiffs.

The said relief sought for cannot be considered as a petition by a

Trustee, seeking for 'any opinion, advice or direction' on any

present questions respecting the management or administration of

the Trust property. Therefore, the main contention of the learned

counsel for the petitioner/applicant (defendant No.4) that the suit

is with respect to the management of the Trust property, as such,

the suit filed under Order VII, Rule 1 read with Section 26 of the

CPC, is not maintainable and the same is barred by the provisions

of Section 34 of the Trust Act, is not acceptable.

14. The other contention of the petitioner/applicant/

defendant No.4 is that, since the plaintiffs themselves say that

there is violation of the provisions of Section 92 of the CPC in the

plaint, the suit would lie to the Principal Court of the Original

jurisdiction, but not before the Trial Court.

C.R.P.No.200007/2018

Section 92 of the CPC reads as below:

92. Public charities. -(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate- General, or two or more persons having an interest in the trust and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in C.R.P.No.200007/2018

force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:-

(a) where the original purposes of the trust, in whole or in part, -

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or C.R.P.No.200007/2018

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

No doubt, the plaintiffs in their plant itself, in paragraph 7,

have stated that, the act of the defendants is illegal, un-

authorised, and against the provisions of the Trusts Act and also

against the mandate of Section 92 of the CPC. However, that

single sentence cannot be isolated from the pleadings of the

plaintiffs and given a separate meaning. When the averments of

the plaint are read in its entirety, as already observed above, the

plaintiffs' main grouse is about ousting them from the trusteeship

of the Trust, which is a Public Trust and inducting the

defendants No.5 to 7 as the Trustees by making a

Supplementary Deed of Trust dated 10-04-2003. Merely because

the plaintiffs were removed from their Trusteeship, by itself, would C.R.P.No.200007/2018

not attract the provisions of Section 92 of the CPC, since,

admittedly, the present suit is not a representative suit instituted

by the learned Advocate General or two or more persons having

an interest in the Trust. The plaintiffs have not sought for any

direction for the administration of the Trust, on the other hand,

the suit is filed by the plaintiffs to vindicate their personal rights,

i.e. to claim back their alleged positions as Trustees of the

Charitable Trust and for cancellation of two resolutions and the

Supplementary Deed of Trust.

15. In a similar circumstance, in the case of Rabiammal

Ahamed Maideen Educational Trust, A public charitable Trust

represented by its Secretary and Correspondent, S.M. Miskeem &

others Vs. K.A. Ahamed Maideen Represented by his Power Agent

N.M.A. Noor Maideen & others reported in 2012-4-L.W.141, the

High Court of Judicature at Madras was pleased to observe that,

where the allegation of breach of trust, direction for administration

of Trust is absent, the suit is maintainable and obtaining leave

under Section 92 of the CPC is not necessary. It was further

observed in the same judgment that, in the absence of seeking

any direction for the administration of the Trust and the suit is C.R.P.No.200007/2018

filed for the relief of declaration that the Supplementary and

amended Deed of Trust are illegal, null and void and also

challenging the removal of some of the plaintiffs, then the suit is

to be considered as the one filed to vindicate one's personal rights,

as such, the suit does not fall within the purview of Section 92 of

the CPC.

16. As observed above, in the instant case, since there is no

direction sought for the administration of the Trust, on the other

hand, the suit is filed by the alleged erstwhile Trustees seeking the

relief of declaration that, the resolutions dated 15-01-2015 and

15-02-2015 are illegal and not binding upon them and also have

sought for the relief of declaration that the Supplementary Deed of

Trust document dated 05-03-2015 is illegal, non-est and further

sought for the relief of permanent injunction against the

defendants. Thus, it cannot be held that, merely because the

plaintiffs at one place in the plaint have stated that there is

violation of mandate under Section 92 of the CPC, the suit is hit by

Section 92 of the CPC, as such, it has to be instituted in the Principal

Court of the Original jurisdiction under the said Section. Thus, the C.R.P.No.200007/2018

other point of argument of the learned counsel for the

petitioner/applicant, is also not acceptable.

17. It is considering the nature and scope of the suit and

the relief sought for in the plaint, the Trial Court has rightly

rejected the interlocutory application - I.A.No.II filed by the

defendant No.4 (present petitioner) under Order VII, Rule 11(d) of

the CPC. I find no illegality, irregularity or impropriety in the

impugned order, warranting interference at the hands of this

Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The Civil Revision Petition stands dismissed as

devoid of any merit.

Registry to transmit a copy of this order to the concerned

Trial Court, for its information, immediately.

Sd/-

JUDGE

BMV*