Karnataka High Court
Adarsha Sugama Sangeetha Academy vs Smt. Vrinda S Rao on 1 August, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.33264 OF 2016 (GM-CPC)
BETWEEN:
1. ADARSHA SUGAMA SANGEETHA ACADEMY
NO.22, 2ND FLOOR, SHOP STREET,
BASAVANAGUDI, BENGALURU-560 004
BY ITS DONOR TRUSTEE
SRI. KRISHNAMURTHY KIKKERI
2. SRI. KRISHNAMURTHY KIKKERI
S/O B.S. NARAYANA BHAT,
AGED ABOUT 47 YEARS,
R/AT 22/6, EAST ANJANEYA TEMPLE STREET,
BASAVANAGUDI, BENGALURU-560004.
...PETITIONERS
(BY SRI. RAJESH MAHALE, ADVOCATE FOR
SRI. D.S.JAYARAJ, ADVOCATE)
AND:
1. SMT. VRINDA S. RAO
W/O B.N. SRIHARI RAO,
AGED ABOUT 49 YEARS,
R/A NO.11, SREESHA,
5TH CROSS, SUPRAJANAGARA,
KONANAKUNTE,
BENGALURU-560 062.
2. SMT. PUSHPA M.K.
W/O SRI. VISHWESWARA
AGED ABOUT 48 YEARS
2
NO.13A, 1ST FLOOR, 5TH CROSS,
SUPRAJANAGARA,
KONANAKUNTE,
BENGALURU-560 062.
3. SMT. SANDHYA G.B.
W/O G.Y. BHAGAWAN,
AGED ABOUT 41 YEARS,
R/AT NO.13, 1ST MAIN ROAD,
GANDHIGRAMA, SRIRAMPURAM,
BENGALURU-560 021.
4. SRI. RAVINDRANATH
S/O K.R. DORESWAMY IYENGAR,
AGED ABOUT 53 YEARS,
R/A NO.2598, 11TH MAIN,
'E' BLOCK, 2ND STAGE,
RAJAJINAGAR,
BENGALURU-560 010.
5. YOGESH
C/O AMEEBA GROUP,
NO.22, 1ST FLOOR, SHOP STREET,
OPP. A.P.S COLLEGE GROUNDS,
BASAVANAGUDI,
BENGALURU-560004.
...RESPONDENTS
(BY SRI. A.V.SRINIVAS, ADVOCATE FOR RESPONDENT NO.1;
SRI. S.R.SREEPRASAD, ADVOCATE FOR RESPONDENT NO.2;
SRI. RAJATH H.V., ADVOCATE FOR RESPONDENT NO.5;
NOTICE IS SERVED ON RESPONDENT NOS.3 AND 4)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 06.02.2016 PASSED BY THE PRINCIPAL CITY
CIVIL JUDGE, BENGALURU, IN MISC. NO.548/2013 VIDE
ANNEXURE-E.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
3
ORDER
Respondent Nos.1 and 2 in Misc. No.548/2013 on
the file of the Principal City Civil and Sessions Judge,
Bengaluru, have filed this writ petition challenging the
Order dated 06.02.2016 passed under Section 92 of the
Code of Civil Procedure, 1908 (for short 'the CPC') granting
leave to the petitioners therein/respondent Nos.1 and 2
herein to file a suit against them.
2. The parties shall henceforth be referred to as
they were arrayed before the Trial Court.
3. A proceeding under Section 92(1) of the CPC
was initiated by the petitioners seeking leave of the Trial
Court to present a suit against the respondents in Misc.
No.548/2013. The petitioner No.1 claimed to be a Trustee
of the respondent No.1 while the petitioner No.2 claimed
to be a music aficionado and interested in the activities of
the Trust. The petitioners asserted that the respondent
No.1 was a public charitable Trust of which the petitioner
No.1 and respondent Nos.2 to 5 are the Trustees. The
petitioners alleged that the meetings of the Trust were not
conducted regularly and that not even a single Annual
General Body meeting of the Trust was held. They alleged
that one of the Trustees, Sri G.Y. Bhagwan died long back
and his place was not filled up. They also alleged that they
noticed irregularities and misappropriation of funds and
suggested to the respondent No.2 to induce democracy in
the functioning of the Trust. They alleged that the
respondent No.2 kept petitioner No.1 away from the
activities of the Trust. They further alleged that the
respondent No.2 was conducting the activities of the Trust
as if it was a proprietary concern and spending the funds
of the Trust at his will. The respondent No.2 was accused
of organizing music concerts in the name of the Trust in
foreign countries, proceeds of which were never accounted
for. With these and various other allegations, the
petitioners sought for permission to file a suit to frame a
scheme for management of the Trust. Along with the
petition under Section 92(1) of the CPC., the petitioners
also placed on record a proposed plaint.
4. Notice of the petition was issued to the
respondents and respondent No.2 who filed his objections
to the petition under Section 92(1) of the CPC., contended
largely (a) that the respondent No.1 was not a public
charitable Trust and therefore, the provisions of Section 92
of the CPC., were not applicable to the respondent No.1;
(b) that the petitioner No.2 was not interested in the
affairs of the Trust and therefore, the petition was not filed
by two or more persons having an interest in the Trust. He
denied the allegations of misapplication and
mismanagement of the funds of the Trust, but stated that
the Trustees worked hard to secure publicity, name and
earned goodwill amongst music lovers. He also claimed
that the petitioner No.1 has laid low for more than 16
years and has thereafter hurled allegations against the
respondents.
5. The Trial Court after hearing the parties, relied
upon the judgment of the Hon'ble Apex Court in R.M.
Narayana Chettiar and another v. N. Lakshmanan
Chettiar and another [1991 (1) SCC 48] and cursorily
passed an order dated 06.02.2016 allowing the petition
filed under Section 92(1) of the CPC.
6. Feeling aggrieved by the said Order, the
present writ petition is filed.
7. The learned counsel for the respondent Nos.1
and 2 / petitioners herein submitted that the respondent
No.1 was not a public charitable Trust and the petitioner
No.2 was not a person interested in the affairs of the Trust
and therefore, the Trial Court without considering the case
of the petitioners on the anvil of the above, allowed the
petition by relying upon a judgment of the Hon'ble Apex
Court in the case cited above. He submitted that a perusal
of the Trust deed does not disclose any charitable activities
of the respondent No.1 and that therefore, the respondent
No.1 does not qualify to be a public charitable Trust and
hence, the Trial Court cannot be clothed with the
jurisdiction to entertain a petition to present a plaint to
frame a scheme for administration of the Trust.
8. Per contra, the learned counsel for the
petitioners/respondent Nos.1 and 2 herein submitted that
respondent No.1 was registered as a charitable Trust and
that it had obtained registration under Section 12A of the
Income Tax Act, 1961. He also pointed out that in the
Income Tax returns filed by the respondent No.1, it had
declared itself as a charitable Trust. He further contended
that the aims and objects of the Trust inter alia provided
that the Trust could carry out the following activities:
"xxx
(d) To start, run and set up institutions and
schools to teach music, both vocal and
instrumental, dance and literature for the benefit
of the people at large and particularly, the people
of Scheduled Castes/Scheduled Tribes and
physically handicapped and other backward
classes.
xxx
(g) To help promotion of physically
handicapped and financially backward students by
way of freeships, scholarships etc.,
xxx
(m) To start funds for the purpose of granting
freeships and scholarships and fellowships to the
students who evince keen interest in the field of
music;
xxx
(p) To conduct deposits and discourses,
seminars, meeting classes, to propagate and
disseminate knowledge, information and
understanding in any area of study and research,
with which the Trust is concerned and to promote
any of the objectives of the Trust;"
Therefore, he contended that the respondent No.1 was
indeed a public charitable Trust and the Trial Court was
justified in entertaining the petition under Section 92(1) of
the CPC. He also submitted that the petitioner No.2 was a
lover and practitioner of music and therefore, she was
interested in the affairs of the Trust.
9. I have considered the submissions made by
the learned counsel for the petitioners and the learned
counsel for respondent Nos.1 and 2. I have perused the
material placed on record. I have also perused the Trust
deed by which the respondent No.1 was constituted.
10. Section 92 of the CPC is a special provision
which provides for securing interest of the general public
who are interested in a public charitable or religious Trust
or an Institution. In order to maintain a suit under Section
92 of the CPC., persons applying should show the
existence of a public charitable or a religious Trust or a
purpose. There should be a clear breach of the terms of
the Trust. Such a petition could be filed by two persons
interested in the affairs of the Trust. Therefore, for the
Court to exercise jurisdiction, there must be a factual
finding from the material placed on record whether the
Trust was a public charitable or a religious Trust and also
whether the persons approaching the Court have any
interest in the Trust. Once the threshold is fulfilled, the
only question would be whether there is a breach of the
Trust and if yes, the Court would determine the modalities
of a scheme for the better and effective administration of
the Trust under its supervision.
11. In the case on hand, a perusal of the
impugned Order does not show that the Trial Court had
applied its mind to the question whether the Trust was
charitable or religious and whether the petitioners were
really interested in the affairs of the Trust. However, the
Court has proceeded on the assumption that the Trust is a
public charitable Trust and that the petitioners are
interested in the affairs of the Trust. Even in the judgment
relied upon by the Trial Court in R.M. Narayana
Chettiar's case (referred supra), the issue was not
whether the persons were interested in the affairs of the
Trust or whether the Trust was charitable or religious in
nature but the issue was whether before granting leave to
institute a suit under Section 92 of the CPC., the Court is
required to provide an opportunity of being heard to the
proposed defendants.
12. In that view of the matter, the impugned Order
suffers from the vice of non-application of mind and
therefore, deserves to be set aside. Having regard to the
fact that the petition is filed in the year 2013, it is
appropriate to direct the Trial Court to expedite the
consideration of the petition in accordance with law.
Hence, the following :
ORDER
(i). The Writ Petition is allowed.
(ii). The Order dated 06.02.2016 passed by the
Principal City Civil and Sessions Judge,
Bengaluru, in Miscellaneous No.548/2013 is set
aside.
(iii). The parties are directed to appear before the
Trial Court on 06.08.2022 and the Trial Court
is requested to dispose off the aforesaid
petition filed under Section 92 of the CPC., at
the earliest and not later than 30.09.2022.
(iv). All contentions of the parties are left open.
Sd/-
JUDGE
sma
