Karnataka High Court

Lions Club Of Suntikoppa vs Mr C A Uthaiah on 14 June, 2022

Bench: B.M.Shyam Prasad

                               -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 14TH DAY OF JUNE, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.8903/2019 (CPC)

BETWEEN:
1.     LIONS CLUB OF SUNTIKOPPA
       B M ROAD, SUNTIKOPPA
       SOMAWARPET TALUK
       KODAGU DISTRICT
       REP BY ITS PRESIDENT:
       MR GLEN NISHAN MENEZES
       AGED ABOUT 39 YEARS
       S/O GODFREY MENEZES

2.     LIONS BHARATIYA EDUCATIONAL
       SERVICE AND CHARITABLE TRUST
       KODAGARAHALLI, SUNTIKOPPA HOBLI,
       SOMAWARPET TALUK - 571243
       REP BY ITS TRUSTEE
       GODFREY MENEZES
       AGED ABOUT 73 YEARS
       S/O LATE A L MENZES
                                          ... APPELLANTS
(BY SRI. B S NAGARAJ, ADVOCATE)

AND:

1.     MR C A UTHAIAH
       AGED ABOUT 85 YEARS
       S/O LATE ACHAMMA
       R/AT ROMA EXTENSION
       SUNTIKOPPA, SOMAWARPET TALUK
       KODAGU DISTRICT - 571237

2.     MR M N HARISH
       AGED ABOUT 69 YEARS
                                  -2-



     S/OLATE M P NARAYANA
     R/AT HARI ESTATE HARDOOR
     VILLAGE AND POST
     VIA SUNTIKOPPA SOMWARPET TALUK
     KODAGU DISTRICT - 571237

3.   MR M A PONNAPPA
     AGED ABOUT 98 YEARS
     S/O LATE MANDETTIRA APPAIAH
     R/AT LALILTHADRI ESTATE
     MADAPUR, SOMWARPET TALUK
     KODAGU DISTRICT - 571237
     [Deleted vide order dated 11.03.2022]

4.   MR P K MUTHANNA
     AGED ABOUT 86 YEARS
     S/O LATE KARIYAPPA
     R/AT PREETH ESTATE, ATHUR
     NULLORE VILLAGE
     VIA SUNTIKOPPA, SOMWARPET TALUK
     KODAGU DISTRICT - 571237

5.   MR P M CARIAPPA
     AGED ABOUT 61 YEARS
     S/O L ATE P K MUTHANNA
     R/AT PREETH ESTATE, ATHUR
     NULLORE VILLAGE
     VIA SUNTIKOPPA, SOMWARPET TALUK
     KODAGU DISTRICT - 571237

6.   MR A ABDUL RASHEED
     AGED ABOUT 85 YEARS
     S/O LATE ABDUL CHECOUR
     R/AT WOOLIGULY ESTATE
     SUNTIKOPPA
     SOMWARPET TALUK
     KODAGU DISTRICT - 571237
     [Deleted vide order dated 25.10.2021]

7.   MR AJITH APPACHOO
     AGED ABOUT 65 YEARS
     S/O K A APPACHOO
                                 -3-



     R/AT GOPAL ESTATE
     HARDUR VILLAGE, SUNTIKOPPA
     SOMWARPET TALUK
     KODAGU DISTRICT - 571237

8.   SRI SANJAY S J
     AGED ABOUT 56 YEARS
     S/O S B JAYARAJ
     R/AT PANIA ESTATE
     ULUGULY VILLAGE,
     SUNTIKOPPA HOBLI, SOMWARPET TALUK
     KODAGU DISTRICT - 571237

9.   SRI ANIL PONNAPPA
     AGED ABOUT 51 YEARS
     S/O M A PONNAPPA
     R/AT MADAPURA VILLAGE
     SUNTIKOPPA HOBLI, SOMWARPET TALUK
     KODAGU DISTRICT - 571237
                                           ... RESPONDENTS
(BY SRI. M.ARUN PONAPPA, ADVOCATE FOR R1, R2, R5
    AND R7 TO R9;
    R3 AND R6-DELETED;
    R4-SERVED)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 104(1)(a) OF THE CODE OF CIVIL PROCEDURE PRAYING
TO SET ASIDE THE ORDER DATED 30.10.2019 PASSED BY THE
HON'BLE   COURT   OF   PRL.,   DISTRICT   JUDGE,   KODAGU   AT
MADIKERI, IN C.M.C. NO.7/2017, WHEREIN DISMISSED THE I.A.
NO.II FILED BY THE APPLICANTS/PLAINTIFFS U/SECTION 92 READ
WITH SECTION 151 OF CPC, CONSEQUENTLY DISMISSED THE
CIVIL MISCELLANEOUS PETITION NO.7/2017.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                               -4-



                        JUDGMENT

The appellants, who are the unsuccessful applicants

under Section 92 of the Code of Civil Procedure, 1908 (for

short, 'CPC') in CMC.No.7/2017 on the file of the Principal

District Judge, Kodagu, Madikeri (for short, 'the District

Court'), have preferred this appeal impugning the District

Court's order dated 30.10.2019. The District Court by this

impugned order has rejected the appellants' application

(I.A.No.II) under Section 92 of CPC for leave to file a suit

against the defendants - respondents for different reliefs,

including the relief of declaration that they are the owners

of certain immovable properties which are described in the

plaint schedule and that certain registered documents are

manipulated.

2. Sri. B.S.Nagaraj and Sri. M.Arun Ponappa, the

learned counsel for the contesting parties, are heard on the

question framed by this Court on 07.06.2022 which reads

as under:

"Could the District Court, after having found that the appellants' application under Section 92 of the Code of Civil Procedure, 1908 did not satisfy the requirements of the provisions thereof, have dismissed the application/suit instead of returning the application/plaint to be presented before the Court of proper jurisdiction in exercise of jurisdiction under Order VII Rule 10 of CPC".

3. This question is framed in the light of

Sri. B.S.Nagaraj's submission that the appellants, in this

appeal, do not challenge the District Court's finding on the

appellants' claims for vindication of their rights, but the

appellants contend that the District Court, instead of

dismissing the application under Section 92 of CPC, should

have returned the same under Order VII Rule 10 of CPC to

be presented as a suit before the proper jurisdictional

Court.

4. Sri. B.S.Nagaraj, the learned counsel for the

appellants, relies upon decision of a Division Bench of this

Court in Christopher Karkada and Others Vs. Church

of South India, represented by its Moderator and

Others1 to buttress his submission that if an application

under Section 92 of CPC could be rejected in exercise of

jurisdiction under Order VII Rule 11 of CPC, the

jurisdiction under Order VII Rule 10 of CPC could also be

exercised to return the plaint to be presented before the

proper jurisdictional Court if the grounds for exercising

such power are established.

5. As against this submission, Sri. M.Arun

Ponappa, the learned counsel for the respondents, submits

that an application under Section 92 of CPC must satisfy

different tests such as: the application must relate to a

trust created for public purposes that are either for

charitable or religious purpose; there must be allegations

necessitating directions for administration of the trust; the

application must be for one or the other of reliefs specified 1 ILR 2012 KAR 725

under Section 92 of CPC and the application must be filed

in a representative capacity for protecting the interest of

public as against vindication of the private rights. He

submits that if these conditions are not established, an

application under Section 92 of CPC must be dismissed

without any further directions. Therefore, the District

Judge has rightly dismissed the application.

6. A Division Bench of this Court in Christopher

Karkada and Others (supra), after an elaborate reference

to the different decisions of the Hon'ble Supreme Court and

the statutory provisions, has held thus while reiterating the

requirements for sustaining an application under Section

92 of CPC. The Division Bench's exposition in this regard

reads as under:

" In the suit, if they are seeking a declaration of their individual or personal rights or individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 of the Code. In order to find out, whether the plaintiff in such a suit is vindicating

the right of the public or his personal right, what is to be seen is, allegations in the plaint. In the first instance, if the allegations in the plaint do not indicate that the plaintiffs have approached the Court to vindicate the rights of the public, on the analogy of Order 7 Rule 11 of Code of Civil Procedure, the plaint can be rejected on the ground that the plaint does not disclose a cause of action. However, if it is not rejected and enquiry is conducted, evidence is taken and thereafter, it is found that breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason, but is made only with a view to bring the suit under the Section, then the suit purported to be brought under Section 92, must be dismissed. Therefore, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public, but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right, does not fall under the Section."

7. The Division Bench in the aforesaid decision

has indeed observed that an application under Section 92

of CPC could be rejected if the application do not make out

the necessary ingredients for invoking Section 92 of CPC

and in this, the Division Bench has drawn an analogy that

the provisions of Order VII Rule 11 of CPC while also

stating that if the Court is of the view that the ingredients

are not even set forth, the application could be dismissed at

the threshold without an enquiry. This proposition cannot

be extended to say that notwithstanding the applicants'

failure to establish necessary ingredients, the plaint should

be returned to be presented before a Court of jurisdiction.