Karnataka High Court
Srimad Ujjaini Saddharma vs Sri S S Patil on 13 April, 2023
Bench: Sreenivas Harish Kumar
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CRP No. 400 of 2021
C/W CRP No. 408 of 2021
WP No. 22662 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
CIVIL REVISION PETITION NO. 400 OF 2021
C/W
CIVIL REVISION PETITION NO. 408 OF 2021
WRIT PETITION NO. 22662 OF 2021 (GM-CPC)
Between:
1. Srimad Ujjaini Saddharma
Simhasana SriMatha Palkurike-Sirigere
Sri Taralabalu Jagadguru Bruhanmatha
Represented by its Present Jagadguru
Sri Sri Dr. Shivamurthy Shivacharya Mahaswamigalu,
Sirigere-577541
Chitradurga Taluk and District,
Present Jagadguru is
Digitally signed Represented by his GPA Holder,
by SRIDEVI S Sri G.R.Omkarappa,
Location: S/o. Gowdara Rangappa,
HIGH COURT Aged about 64 years,
OF R/a Sirigere, Chitradurga-577541.
KARNATAKA
2. Srimad Ujjaini Saddharma
Simhasana Sri Taralabalu Jagadguru Bruhanmatha
Represented by its Sole Trustee
His Holiness Sri Taralabalu Jagadguru.
Dr. Shivamurthy Shivacharya Mahaswamigalu,
Sirigere-577541
Chitradurga Taluk and District,
Sole Trustee is
Represented by his GPA Holder,
Sri G.R.Omkarappa,
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S/o. Gowdara Rangappa,
Aged about 64 years,
R/a Sirigere,
Chitradurga-577541.
3. Sri Sri Dr. Shivamurthy Shivacharya Mahaswamigalu
Jagadguru of Defendant No.1 and
Sole Trustee of Defendant No.2,
R/a "Shanthivana",
Sirigere 577541,
Chitradurga Taluk and District,
Represented by his GPA Holder,
Sri G.R.Omkarappa,
S/o. Gowdara Rangappa,
Aged about 64 years,
R/a Sirigere, Chitradurga 577541.
...Petitioners
(By Sri Ashok Haranahalli, Senior Advocate, for
Sri Sandeep Patil, Advocate)
And:
1. Sri S.S.Patil
S/o. Shivalingappa,
Aged about 80 years,
Occ. Educationist,
R/a Vidya Nagar,
Hirekerur-581111,
Haveri District.
2. Sri Manjappa B.H.,
S/o. Sannadundyappa,
Aged about 68 years,
Occ: Addl Registrar (Retd.)
R/a Bidaragadde,
Honnali Taluk 577217,
Davanagere District.
3. Sri Shivakumar Swamy M.,
S/o. Mahesharappa,
Aged about 68 years,
Occ: Deputy Secretary (Retd.)
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R/a 1471, Srinivasa,
2nd Cross, Judicial Layout,
GKVK Post, Bengaluru-560065.
4. Sri Subhaschandra
S/o Basavanagouda Thippannanavar,
Aged about 61 years,
Occ: Advocate,
R/a Vidyanagar,
Hirekerur 581111,
Haveri District.
5. Dr. G.M.Lingaraju
S/o. G.B.Mahadevappa,
Aged about 67 years,
Occ: Scientist,
R/a No.470, 9th Main, ITI Layout,
Nagarbhavi 2nd Stage,
Bengaluru-560056.
6. Sri T.P.Kallesh
S/o. Parameswarappa,
Aged about 62 years,
Occ: Inudstrialist,
R/a No.793, 11th Main,
Nagarbhavi, Bengaluru-560072.
7. Sri Kantharaj P.,
S/o. Parameshwarappa,
Aged about 54 years,
Occ: Contractor and Builder,
R/a No.407, Nagol, 9th Main,
13th Cross, MPM Layout,
Mallathahalli, Bengaluru-560056.
8. Dr. H.Karibasappa
S/o G.Halappa,
Aged about 59 years,
Occ: Professor and Chartered Engineer,
R/a No.58, J.S.Layout,
Sarajapura Road,
Behind Family Big Mart,
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WP No. 22662 of 2021
Attibele Post,
Bengaluru-562107.
9. Sri Shivakumar Maalige S.,
S/o. Sri Shankamurthy M.K.,
Aged about 56 years,
Occ: Electrical Consultant and Solution Provider
R/a No.59/6B, 1st D Main, 2nd Block,
2nd Stage, Nagarbhavi,
Bengaluru-560072.
10. Srimath Sadhu Saddhama Veerashaiva Sangha
Having its Registered Office at
Sirigere 577541.
Chitradurga Taluk and District.
11. Sri Taralabalu Vidya Samsthe
Sirigere,
Having its Registered Office at Sirigere -577541,
Chitradurga Taluk and District,
Represented by its President/Secretary.
...Respondents
(By Sri K.G.Sadashivaiah, Advocate for R1;
Sri K.N.Phaneendra, Senior Advocate for
Sri Rakesh B. Bhatt, Advocate for R2;
Sri B.S.Raghuprasad, Advocate for R4;
Sri Anant Mandgi, Senior Advocate for
Sri K.Srikanth Patil, Advocate for C/R5-7 & R9 and
For R3 & R8;
Sri Shivaprasad Shantanagoudar, Advocate for R10;
Sri Udaya Holla, Senior Advocate for
Sri P.N.Manmohan, Advocate for R11)
This CRP filed under section 115 of CPC, against the order
dated 21.10.2021 passed in Misc.No.169/2021 on the file of the
Principal District and Sessions Judge, Chitradurga, allowing the
application filed under Section 92 of CPC.
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WP No. 22662 of 2021
In CRP No. 408/2021
Between:
Sri Taralabalu Vidya Samsthe
Sirigere
Having its Registered Office at
Sirigere - 577 541
Chitradurga Taluk and District
Represented by its President/Secretary
...Petitioner
(By Sri Udaya Holla, Senior Advocate for
Sri P.N.Manmohan, Advocate)
And:
1. Sri S.S.Patil
S/o. Shivalingappa
Aged about 80 years
Occ: Educationist
R/a Vidya Nagar
Hirekerur - 581 111
Haveri District
2. Sri Manjappa B.H.,
S/o. Sannadundyappa
Aged about 68 years
Occ: Addl. Registrar (Retd.)
R/a Bidaragadde
Honnali Taluk - 577 217
Davanagere District
3. Sri Shivakumar Swamy M.,
S/o. Mahesharappa
Aged about 68 years
Occ: Deputy Secretary (Retd.)
R/a 1471, Srinivasa
2nd Cross, Judicial Layout,
GKVK Post, Bengaluru - 560 065
4. Sri Subhaschandra
S/o. Basavangouda Thippannanavar
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Aged about 61 years
Occ: Advocate
R/a Vidya Nagar
Hirekerur - 581 111
Haveri District
5. Dr. G.M.Lingaraju
S/o. G.B.Mahadevappa
Aged about 67 years
Occ: Scientist
R/a No.470, 9th Main, ITI Layout
Nagarbhavi 2nd Stage
Bengaluru - 560 056
6. Sri T.P.Kallesh
S/o. Parameswarappa
Aged about 62 years
Occ: Industrialist
R/a No.793, 11th Main,
Nagarbhavi
Bengaluru - 560 072
7. Sri Kantharaj P.,
S/o. Parameshwarappa
Aged about 54 years
Occ: Contractor and Builder
R/a 407, Nagol 9th Main
13th Cross, MPM Layout
Mallathahalli, Bengaluru - 560 056
8. Dr. H.Karibasappa
S/o. G.Halappa
Aged about 59 years
Occ: Professor and Chartered Engineer
R/a No.58, J.S.Layout,
Sarajapura Road
Behind Family Big Mart
Attibele Post, Bengaluru - 562 107
9. Sri Shivakumar Maalige S.,
S/o. Sri Shankamurthy M.K.,
Aged about 56 years
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Occ: Electrical Consultant
And Solution Provider
R/a No. 59/6b, 1st D Main,
2nd Block, 2nd Stage,
Nagarbhavi, Bengaluru - 560 072
10. Srimad Ujjaini Saddharma
Simhasana Srimatha Palkurike Sirigere
Sri Taralabalu Jagadguru Bruhanmatha
Represented by its Present Jagadguru
Sri Sri Dr. Shivamurthy Shivacharya Mahaswamigalu
Sirigere - 577 541
Chitradurga Taluk and District
11. Srimad Ujjaini Saddharma
Simhasana Sri Taralabalu Jagadguru Bruhanmatha
Represented by its Sole Trustee
His Holiness Sri Taralabalu Jagadguru
Dr. Shivamurthy Shivacharya Mahaswamigalu
Sirigere - 577 541
Chitradurga Taluk and District
12. Sri. Sri. Dr. Shivamurthy Shivacharya
Mahaswamigalu
Jagadguru of Defendant No.1 and
Sole Trustee of Defendant No.2
R/a Shanthivana
Sirigere - 577 541
Chitradurga Taluk and District
13. Sri Math Sadhu Saddharma
Veerashaiva Sangha
Having its Registered Office at
Sirigere - 577 541
Chitradurga Taluk and District
...Respondents
(By Sri K.G.Sadashivaiah, Advocate for R1;
Sri K.N.Phaneendra, Senior Advocate for
Sri Rakesh B. Bhatt, Advocate for R3;
Sri B.S.Raghuprasad, Advocate for R4;
Sri Anant Mandgi, Senior Advocate for
Sri K.Srikanth Patil, Advocate for C/R5-7 &
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R9 and for R2 & R8;
Sri Ashok Haranahalli, Senior Advocate for
Sri Sandeep Patil, Advocate for R10-12;
Sri Shivaprasad Shantanagoudar, Advocate for R13)
This CRP is filed under Section 115 of CPC, against the
order dated 21.10.2021 passed in Miscellaneous Application
No.169/2021 on the file of the Principal District and Sessions
Judge, Chitradurga allowing the application filed under section
92 of CPC.
In WP No.22662/2021
Between:
Sri Math Sadhu Saddharma Veerashaiva Sangha
Having its Registered Office at
Sirigere 577541
Rep. by its President / Secretary
Sri K.R.Jayadevappa
...Petitioner
(By Sri Shivaprasad Shantanagoudar, Advocate)
And:
1. Sri S.S.Patil
S/o. Shivalingappa
Aged about 80 years
Occ: Educationist
R/at Vidya Nagar
Hireker1ur,
Haveri District 581111
2. Sri Manjappa B.H.,
S/o. Sannadundayappa
Aged about 68 years
Occ: Addl. Registrar (Retired)
R/at Bidaragadde, Honnali (Taluk)
Davanagere District
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3. Sri Shivakumar Swamy M.,
S/o. Mahesharappa
Aged about 68 years
Occ: Deputy Secretary (Retired)
R/at No.1471, Sri Nivasa
2nd Cross, Judicial Layout
GKVK Post, Bengaluru 560065
4. Sri Subhaschandra
S/o. Basavanagouda Tippannavar
Aged about 61 years
Occ: Advocate
R/at Vidya Nagar
Hirekerur 581111
Haveri District
5. Dr. G.M.Lingaraju
S/o. G.B.Mahadevappa
Aged about 67 years
Occ: Scientist
R/at No.470, 9th Main
ITI Layout, Nagarbhavi
2nd Stage, Bengaluru 560056
6. Sri T.P.Kallesh
S/o. Parameshwarappa
Aged about 62 years
Occ: Industrialist
R/at No.793, 11th Main
Nagarbhavi, Bengaluru 560072
7. Sri Kantharaj P.,
S/o. Parameshwarappa
Aged about 54 years
Occ: Contractor and Builder
R/at No.407, Nagol, 9th Main
13th Cross, MPM Layout
Mallathihalli, Bengaluru 560056
8. Dr. H.Karibasappa
S/o. G.Halappa
Aged about 59 years
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Occ: Proffessor and Chartered Engineer
R/at No.58, J.S.Layout,
Sarjapura Road
Behind Family Bid Mart
Attibele Post, Bengaluru 562107
9. Sri Shivakumar Maalige S.,
S/o. Shankaramurthy M.K.,
Aged about 56 years
Occ: Electrical Consultant and Solution Provider
R/at No.59/6B, 1st D Main, 2nd Block
2nd Stage, Nagarbhavi
Bengaluru 560072
10. Srimadh Ujjaini Saddharma
Simhasana SriMatha Palkurike Sirigere
Sri Tarala Balu Jagadguru Bruhanmatha
Rep. by its President
Supervisor/ Manager / Care Taker
Sri Sri Dr Shivamurthy Shivacharya Mahaswamigalu
Sirigere 577541
Chitradurga Taluk and District
11. Srimadh Ujjaini Saddharma,
Simhasana Sri Tarala Balu Jagadguru Bruhanmatha,
Represented by its Sole Trustee,
His Holiness Sri Tarala Balu Jagadguru
Dr. Shivamurthy Shivacharya Mahaswamigalu,
Sirigere-577541,
Chitradurga Taluk and District
12. Sri Sri Dr. Shivamurthy Shivacharya Mahaswamigalu
Erstwhile Jagadguru of R1 and
The So called Sole Trustee of Respondent No.2
R/at "Shantivana", Sirigere 577514
Chitradurga Taluk and District
13. Sri Taralabalu Vidya Samaste, Sirigere
Having its Registered Office at
Sirigere 577541
Chitradurga Taluk and District
Rep. by its President/Secretary
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...Respondents
(By Sri Anant Mandgi, Senior Advocate for
Sri K.Srikanth Patil, Advocate for C/R5-7 & R9)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to set aside the order dated
21.10.2021 passed by the Hon'ble Principal District and
Sessions Judge, at Chitradurga in Misc.No.169/2021 at
Annexure-A.
These Petitions having been heard and reserved on
17.03.2023 coming on for pronouncement this day, the
court pronounced the following:
ORDER
The two revision petitions under section 115 of Code
of Civil Procedure ('CPC' for short) and the writ petition
under Article 227 of the Constitution of India challenge the
correctness of the order dated 21.10.2021 passed by the
Principal District Judge, Chitradurga, allowing
Misc.Case.No.169/2021, filed under section 92 of CPC.
2. The petitioner in CRP.No.400/2021 is opponent
no.1, the petitioner in CRP.No.408/2021 is opponent no.5
and the petitioner in W.P.No.22662/2021 is opponent no.4
in a proceeding under section 92 CPC.
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3. Sri. Ashok Haranahalli, learned Senior Advocate
for the petitioners in CRP.No.400/2021, Sri. Udaya Holla,
learned Senior Advocate for the petitioner in
CRP.No.408/2021 and Sri. Shivaprasad Shantanagoudar,
learned Advocate for the Writ petitioner and Sri. Anant
Mandgi and Sri. K.N.Phaneendra, learned Senior advocates
for respondents addressed their arguments.
4. Sri. Anant Mandgi raised a question with regard to
maintainability of revision petitions and the writ petition.
This question must be addressed first. It was the
argument of Sri. Anant Mandgi that an order passed on an
application under section 92 CPC was an administrative
order as has been laid down by the High Court of Madras
in the case of G.R.Govindarajulu and Sons Charities
Vs. R. Sethurao and others [1988(II) CTC 65] and
therefore such an order cannot be questioned either under
section 115 CPC or Article 227 of the Constitution of India.
He also argued that the court can decide the application
under section 92 CPC even without issuing notice to the
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defendants; and if the defendants are aggrieved by the
order of granting leave, they can apply for revoking that
order. For this reason, the petitioners have no locus
standi to question the order of the District Court,
Chitradurga. He also relied on the judgment of the
Hon'ble Supreme Court in B.S. Adityan and others Vs.
B. Ramachandran Adityan and others
(MANU/SC/0393/2004) and a co-ordinate bench of this
court in the case of Ranganna Vs. Chikkanna [ILR
1996 Kar 491] in support of his argument.
5. Sri. Ashok Haranahalli replied to this argument by
referring to the judgment of the Supreme Court in the
case of Vidyodaya Trust and Others Vs. Mohan
Prasad R and Others [(2006) 7 SCC 452] and
submitted that order under section 92 CPC can be
questioned in revision.
6. In the case of B.S.Adityan (supra) the Hon'ble
Supreme Court has held,
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"10. However, this Court dismissed
the Special Leave Petition. It is in this
background the learned counsel submitted
that the court ought to have examined the
matter in all necessary details before
granting permission under Section 92
CPC. In R.M. Narayana Chettiar's case
(supra), this Court considered in detail the
history of the legislation and whether
court is required to give an opportunity of
being heard to the proposed defendants
before granting leave to institute a suit
under Section 92 CPC and stated the law
on the matter. Although as a rule of
caution, court should normally give notice
to the defendants before granting leave
under the said Section to institute a suit,
the court is not bound to do so. If a suit is
instituted on the basis of such leave,
granted without notice to the defendants,
the suit would not thereby be rendered
bad in law or non- maintainable. Grant of
leave cannot be regarded as defeating or
even seriously prejudicing any right of the
proposed defendants because it is always
open to them to file an application for
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revocation of the leave which can be
considered on merits and according to law
or even in the course of suit which may be
established that the suit does not fall
within the scope of Section 92 CPC. In
that view of the matter, we do not think,
there is any reason for us to interfere with
the order made by the High Court.
7. Therefore it becomes clear that the Supreme Court
has actually not held that issuance of notice to the
defendants on an application under section 92 CPC is not
at all necessary. Rule of caution requires notice to be
given, however it is not necessary to do so. In the case
on hand Sri. Anant Mandgi was not justified in arguing in
this way because the respondents took out notice to the
petitioners, and the court below heard them on the
application under section 92. Having had the participation
of the petitioners, the argument that they can approach
the court below again for revocation of the order cannot
be accepted. Right to apply for revocation arises only
when the application under section 92 is decided without
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hearing the proposed defendants; if notice is ordered to
the proposed defendants and they are heard on the
application, they cannot once again approach the very
same court.
8. Now the question is whether the order under
section 92 CPC is an administrative order or judicial order.
Sri. Anant Mandgi has placed reliance on the judgment of
the Supreme Court in B.S.Adityan and of High Court of
Madras in G.R. Govindarajulu. Learned Single Judge of
the High Court of Madras followed the Bench decision in
the case of R.Kannan Adityan and four others Vs. B.S.
Adityan and six others [1996(2) L W 364), to hold
that an order passed under section 92 CPC is an
administrative order. It appears that this judgment of the
Division Bench was appealed to the Supreme Court where
the argument was put forth on the same lines. If the
judgment of the Hon'ble Supreme Court is read, it may be
stated with great respect that the Supreme Court has not
laid down any ratio that an order on an application under
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section 92 is administrative in nature. In para 4 of the
judgment, different views expressed by some of the High
Courts have been noted. Therefore the case of B.S.
Adityan does not help Sri. Anant Mandgi.
9. In the case of G.R.Govindarajulu the learned
single judge of the High Court of Madras has given the
following reason.
"12. The Advocate General is given
this responsibility since it is the duty of
the State to direct and safeguard all public
trusts. The Advocate General, being an
expert in the peculiar situations by his
experience to view things objectively was
given that duty to protect the trust and
therefore he was given the power to
institute a suit by himself, but if he is not
in a position to do it himself, with his
consent, two or more persons can
institute a suit. It is only that power which
the Advocate General could exercise
under the original section before 1976, is
now taken by Court. It is not disputed
that while Advocate General exercised his
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power, he was only discharging an
administrative function. If that power has
been delegated to Court, any order
passed by Court can only be treated as
administrative and not judicial or quasi
judicial."
(underlining by me)
10. The power that the Advocate General used to
exercise before amendment was brought to section 92 in
the year 1976 was no doubt purely administrative, but its
further view that the power was delegated to court by
virtue of amendment is difficult to be accepted. The
amendment conferred power on the court to take a
decision on an application under section 92 CPC. The
distinction between an administrative order and a judicial
order is made clear by the Hon'ble Supreme Court in the
case of Shankarlal Aggarwala and Others Vs.
Shankarlal Poddar and others [AIR 1965 SC 507]. It
is held,
"9. It is perhaps not possible to
formulate a definition which would
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satisfactorily distinguish, in this context,
between an administrative and a judicial
order. That the power is entrusted to or
wielded by a person who functions as a
Court is not decisive of the question
whether the Act or decision is
administrative or judicial. But we conceive
that an administrative order would be one
which is directed' to the regulation or
supervision of matters as distinguished
from an order which decides the rights of
parties or confers or refuses to confer
rights to property which are the subject of
adjudication before the Court. One of the
tests would be whether a matter which
involves the exercise of discretion is left
for the decision of the authority,
particularly if that authority were a Court,
and if the discretion has to be exercised
on objective, as distinguished from a
purely subjective, consideration, it would
be a judicial decision. It has sometimes
been said that the essence of a judicial
proceeding or of a judicial order is that
there should be two parties and a lis
between them which is the subject of
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adjudication, as a result of that order or a
decision on an issue between a proposal
and an opposition. No doubt, it would not
be possible to describe an order passed
deciding a lis before the authority, that it
is not a judicial order but it does not
follow that the absence of a lis necessarily
negatives the order being judicial. Even
viewed from this narrow standpoint it is
possible to hold that there was a lis before
the Company judge which he decided by
passing the order. On the one hand were
the claims of the highest bidder who put
forward the contention that he had
satisfied the requirements laid down for
the acceptance of his bid and was
consequently entitled to have the sale in
his favour confirmed, particularly so as he
was supported in this behalf by the official
liquidators. On the other hand there was
the 1st respondent and not to speak of
him, the large body of unsecured creditors
whose interests, even if they were not
represented by the 1st respondent, the
Court was bound to protect. If the sale of
which confirmation was sought was
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characterised by any deviation from the
conditions subject to which the sale was
directed to be held or even otherwise was
for a gross undervalue in the sense that
very much more could reasonably be
expected to be obtained if the sale were
properly held in view of the figure of Rs.
3,37,000/- which had been bid by Nandlal
Agarwalla, it would be the duty of the
Court to refuse the confirmation in the
interests of the general body of creditors
and this was the submission made by the
1st respondent. There were thus two
points of view presented to the Court by
two contending parties or interests and
the Court was called upon to decide
between them. And the decision vitally
affected the rights of the parties to
property. In this view we are clearly of the
opinion that the order of the Court was, in
the circumstances, a judicial order and not
an administrative one and was therefore
not inherently incapable of being brought
up in appeal."
(underlining by me)
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11. Then section 104 CPC provides for an appeal if
leave under section 92 is refused. It is the judicial order
which can be questioned in an appeal made under section
104 CPC. If leave is granted, it cannot be questioned in
appeal, nevertheless, it may be stated with reference to
section 104 CPC and the judgment of the Supreme Court
extracted above that while deciding an application, the
court is bound to examine the averments made in the
plaint with the objective of ascertaining whether those
averments fall within the ambit of section 92 CPC. Either
to grant leave or not, the court has to make same exercise
and therefore in my considered view an order granting
leave under section 92 CPC is a judicial order. Be that as
it may, the Hon'ble Supreme Court in the case of
Vidyodaya Trust (supra) has clearly held as below:
"11. Judged in the aforesaid
background the view of the learned Single
Judge that the Civil Revision was not
maintainable is clearly indefensible.
Learned counsel for the respondent has
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fairly conceded to this position. If it is held
that the suit in terms of Section 92 CPC is
not maintainable, that would have the
result of final disposal of the suit.
However, the learned counsel made an
attempt to justify the order by stating that
the matter was also dealt with on merits.
That would not improve the situation. The
Civil Revision was clearly maintainable.
Therefore, we allow the appeal so far as it
relates to Civil Revision Petition
No.1260/2003 disposed of by judgment
dated 5.2.2004 by the High Court. The
said order is set aside."
12. The legal position that a revision is maintainable
under section 115 CPC is made clear by the Hon'ble
Supreme Court. Further, if revision petition is allowed, the
applicant under section 92 CPC cannot proceed further,
and thus the proceeding will come to an end. This analogy
fits into scope of section 115 CPC. In this view, a party
aggrieved by grant of leave under section 92 can question
it under section 115 CPC.
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13. Though opponent no.4 has filed a writ petition
under Article 227 of the Constitution of India, it can also
be treated as a revision petition under section 115 CPC.
14. Then the next question is whether the court
below has erred in granting leave. It was argued by Sri.
Ashok Haranahalli and Sri. Udaya Holla that the contents
of plaint do not disclose a dispute relating to charitable
trust. The first relief claimed in the plaint is to declare the
trust deed dated 27.7.1990 null and void. This being the
main relief, section 92 CPC is not applicable; and such
kind of a relief can be claimed in a regular suit only. They
also argued that all the educational institutions mentioned
in the plaint schedule belong to fifth defendant society;
they are not trust properties and therefore it is clear that
suit is not brought in respect of properties of trust. They
also argued that as can be made out from the plaint, one
Dr. S. Siddaiah was nominated as 'Uttaradhikari' of the
first defendant mutt, but he was not anointed. His
personal grievance does not permit a suit to be brought
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under section 92 as has been held by the Supreme Court
in the case of Swami Paramatmanand Saraswati And
Others Vs. Ramji Tripathi and Others [(1974) 2 SCC
695]. The plaint averments are so clear that none of the
reliefs claimed in the plaint falls within the ambit of section
92 CPC, and in this view the impugned order needs to be
set aside. Sri. Shivaprasad Shantanagoudar submitted
that the society was formed in the year 1923, i.e., much
before trust was created. The society has been managing
all the educational institutions, since the society is an
independent entity, the court below should not have
granted leave.
15. Sri. Anant Mandgi and Sri. K.N. Phaneendra
argued that the first defendant is a mutt, which is a
constructive public trust for charitable and religious
purpose. The pontiff or peetadhipati of the mutt cannot
claim any property of the mutt to be belonging to him.
But, very strangely, the third defendant created a trust in
respect of properties of the mutt, and he nominated
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himself a sole trustee. They argued that a person cannot
author a trust in respect of properties which do not belong
to him. It is for this reason, his removal from the
trusteeship of first defendant has been sought; the suit is
in respect of first defendant; the educational institutions
actually belong to first defendant, and the society was
formed for the purpose of management of the educational
institutions only. Therefore the society being one of the
defendants cannot be reason for declining to grant
permission under section 92 CPC. They further argued
that the third defendant has already executed a sale deed
in respect of the property of the mutt, which is a clear
instance of mutt properties being alienated illegally. They
also argued that in a suit under section 92 CPC, it is
enough if one of the reliefs falls within the scope of that
section. As regards mentioning of the name of Dr.
S.Siddaiah, they argued that Dr.S. Siddaiah is not a party
to the suit, and his name was to be incidentally mentioned
in the plaint just to highlight the fact of an attempt made
by third defendant to anoint his nephew as next pontiff of
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the mutt. In this regard they argued that if at all Dr.
Siddaiah has instigated others to institute the suit, that
can be found out only after recording evidence, and not at
the threshold stage of deciding an application under
section 92 CPC. Therefore they argued that the court
below has rightly come to conclusion to grant leave and a
well reasoned order cannot be interfered with.
16. It is a settled principle that decision on
application under section 92 CPC has to be taken by
looking into averments found in the plaint. Even if the
defendants want to oppose, they must do so with
reference to plaint only, and they cannot introduce their
defence on the application. In the case of Swami
Paramatmanand Saraswati, the Hon'ble Supreme Court
has held as below:
"10. A suit under s. 92 is a suit of a
special nature which presupposes the
existence of a public trust of a religious or
charitable character. Such a suit can
proceed only on the allegation that there
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was a breach of such trust or that the
direction of the Court is necessary for the
administration of the trust and the plaintiff
must pray for one or more of the reliefs
that are mentioned in the section. It is,
therefore, clear that if the allegation of
breach of trust is not substantiated cir
that the plaintiff had not made out a case
for any direction by the Court for proper
administration of the trust, the very
foundation of a suit under the section
would fail, and, even if all the other
ingredients of a suit under s. 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 S. 92 (see Shamukhan v.
Govinda (1) Tirumalai Devasthanams v.
Krishnayya(2). Sugra Bibi v. Hazi Kummu
Mia(3) and Mulla : Civil Procedure Code
(13th ed.), Voll. 1, p. 4001). A suit whose
primary object or purpose is to remedy
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the infringement of an individual right or
to vindicate a private right does not fall
under the section. It is not every suit
claiming the reliefs specified in the section
that can be brought under the section but
only the suits which, besides claiming any
of the reliefs, are brought by individuals
as representatives of the public for
vindication of public rights; and in
deciding whether a suit falls within s. 92,
the Court must go beyond the reliefs and
have regard to the capacity in which the
plaintiffs are suing and to the purpose for
which the suit was brought. This is the
reason why trustees of public trust of a
religious nature are precluded from suing
under the section to vindicate their
individual or personal rights. It is quite
immaterial whether the, trustees pray for
declaration of their personal rights or
deny the personal rights of one or more
defendants. When the right to the office of
a trustee is asserted or denied and relief
asked for on that basis, the suit falls
outside s. 92."
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17. In the case of Ashok Kumar Gupta and
Another Vs. Sitalaxmi Sahuwala Medical Trust and
Others, [2020 SCC Online SC 274], the Hon'ble Supreme
Court has stated that three conditions are to be satisfied for
instituting a suit under section 92 CPC. What is held is:
"12. Three conditions are, therefore,
required to be satisfied in order to invoke
Section 92 of the Code and to maintain an
action under said Section, namely, that
(i) the Trust in question is created for public
purposes of a charitable or religious nature;
(ii) there is a breach of trust or a direction of
Court is necessary in the administration of such
a Trust; and
(iii) the relief claimed is one or other of the
reliefs as enumerated in said Section.
Consequently, if any of these three conditions is
not satisfied, the matter would be outside the
scope of said Section 92."
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18. Now if the impugned order is seen, it cannot be
said that the court below has passed a perfunctory order.
It has examined the plaint in the light of settled legal
principles. Though the plaint is very narrative and looks
like a written argument, its contents do disclose that the
defendant, which is a mutt, is headed by the third
defendant. The first defendant mutt is meant for the
people belonging to a particular religious order, and it is a
constructive public trust for charitable and religious
purposes. If the first defendant itself is a trust, a doubt in
the conduct of third defendant in creating an express trust
by means of a trust deed arises. The trust deed, which is
produced along with plaint, shows third defendant creating
a trust in respect of properties which do not appear to be
belonging to him personally. As a pontiff or Mathadhipati
of the first defendant trust he holds all the properties of
the mutt in the capacity of trustee only, and if he, in that
capacity, created another trust, it gives scope for looking
at his conduct with askance. If he would execute a sale
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deed in favour of a third party, again the allegations made
against him would get strengthened.
19. It is true that the mention of the name of Dr. S.
Siddaiah in the plaint creates an impression that he might
be behind institution of the suit. But mention of his name
is just a surplusage, if he is really involved in the suit to
vindicate his personal right, it can be thrashed out only
after full fledged trial. At this stage, looking into the
actual averments made in the plaint, an inference can be
drawn that it is with a view to protecting the mutt and its
properties, and to frame a scheme for its management,
suit has been brought under section 92 CPC. Merely for
the reason that declaration as to nullity of trust deed
created by third defendant is sought, it cannot be said that
section 92 CPC is not applicable, for the other reliefs
claimed in the plaint fall within the ambit of that section.
The cause of action for the suit has to be deciphered by
reading the plaint as a whole, not with reference to a
particular paragraph in the plaint. Since I find the plaint
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being in conformity with section 92 CPC, the trial court has
rightly granted leave. For these reasons, I do not find
good ground to interfere with the impugned order. The
revision petitions and the writ petition are dismissed.
Sd/-
JUDGE
sd
