Karnataka High Court

C Chetan vs Sri. Sowkar Kabbahalli ... on 11 January, 2023

Bench: H T Prasad

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                                                MFA No. 5031 of 2012




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 11TH DAY OF JANUARY, 2023

                                     BEFORE
                 THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
            MISCELLANEOUS FIRST APPEAL NO. 5031 OF 2012 (CPC)
            BETWEEN:

            1.    C CHETAN
                  S/O P.S. CHANNABASAPPA AGED ABOUT 43 YEARS
                  NO.2729,5TH MAIN ROAD,V.V. MOHALLA, VONTI
                  KOPPAL,MYSORE, TRUSTEE OF SRI. SOWKAR
                  KABBAHALLI CHANNABASAPPA VEERASHIVA
                  ASHRAM TRUST, JLB ROAD,570002

            2.    K.G. MAHESHCHANDRA
                  S/O J.C. GURUMALLAPPA AGED ABOUT 40 YEARS
                  RESIDENTS OF KABBAHALLI VILLAGEGUNDLUPET
                  TALUK, CHAMARAJANAGAR DISTRICT
Digitally                                          ...APPELLANTS
signed by C
MALATHI      (BY SRI. H.N.SHASHIDHARA, SENIOR COUNSEL FOR M/S.
Location:    KESVY AND CO., ADVOCATE)
High Court
of Karnataka
            AND:

            1.    SRI. SOWKAR KABBAHALLI CHANNABASAPPA
                  VEERASHIVA ASHRAM TRUST, JLB ROAD, MYSORE
                  REP. BY ITS BOARD OF TRUSTEES
                  DR.K.M.THOTAPPA,
                  (since dead, deleted vide court order
                   dated 12.03.2018)
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                                     MFA No. 5031 of 2012




2.   N.S. BASAVARAJU
     FATHERS NAME NOT KNOWN TO THE APPELLANTS
     SECRETARY OF THE TRUST, NO.96, DAYAMARGA,
     SIDDARTHA NAGAR, MYSORE-570011

3.   G. BASAVARAJU
     FATHERS NAME NOT KNOWN TO THE APPELLANTS
     NO.55,1ST CROSS, III MAIN, NETHAJI NAGAR
     T.N.PURA ROAD, ALANAHALLI MYSORE-570011

4.   DR. P.S. BASAVARAJAIAH
     NO.413, 12TH MAIN, S.S.PURAM
     MYSORE - 577 009.

5.   P.S. SHIVASWAMY
     NO.14, III MAIN ROAD, II CROSS, 1ST STAGE,
     KIRLOSKAR COLONY BANGALORE-10560010

6.   P.S. NANJAPPA
     NO.619 (P) II BLOCK, 36TH CROSS, NEAR ESI
     HOSPITAL BANGALORE-79

7.   K.N. MAHADEVASWAMY
     DOOR NO.16/B, AHIMSA MARGA SIDDARTHA
     LAYOUT, MYSORE -570011

8.   H.G. GURUPRASAD
     NO.115, C & D BLOCK, 1ST CROSS LALITHDRI ROAD,
     KUVEMPU NAGAR MYSORE -570023

9.   MANGALA MUDDUMADAPPA
     HEAD MASTER, MARIMALLAPPA HIGH SCHOOL,
     RAMA VILAS ROAD, MYSORE -570024

10. HINDUSTAN PETROLEUM CORPORATION LIMITED
    HAVING REGISTERED OFFICE AT NO.17, JAMSHADJI
    TATA ROAD, MUMBAI -400020 REGIONAL OFFICE AT
    NO.77, DORRAVANI NAGARA POST,
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                                  MFA No. 5031 of 2012




    KRISHNARAJAPURA, BANGALORE-REP. BY ITS DULY
    CONSTITUTED ATTORNEY & CHIEF REGIONAL
    MANAGAR - RETAIL.

11. H.P. BASAPPA
    S/O PUTTAPPA AGED ABOUT 86 YEARS EX-VICE
    CHAIRMAN, KABBAHALLI VILLAGE GUNDLUPET
    TALUK, CHAMARAJNAGAR DISTRICT

    TRUSTEE OF SRI SOWKAR KABBAHALLI
    CHANNABASAPPA VEERASHIVA ASHRAM TRUST,
    JLB ROAD, MYSORE - 570 002.

12. PATEL SHANTHAPPA
    S/O PATEL BASAPPA AGED ABOUT 72 YEARS
    MADAPATNA VILLAGE GUNDLUPET TALUK
    CHAMARAJANAGARA DISTRICT

13. SHIVABASAPPA
    S/O KALAPPANA MALLAPPA AGED ABOUT 69 YEARS
    MADAPATNA VILLAGE GUNDLUPET TALUK
    CHAMARAJANAGAR DISTRICT

14. GOWDIKE VEERATHAPPA
    S/O SUBBAPPA AGED ABOUT 66 YEARS
    R/O KABBAHALLI VILLAGE GUNDLUPET TALUK
    CHAMARAJANAGAR DISTRICT

15. NANJUNDAPPA
    S/O MADAPPA AGED ABOUT 64 YEARS RETIRED
    TEACHER R/O KABBAHALLI VILLAGE, GUNDLUPET
    TALUK CHAMARAJANAGAR DISTRICT-571109

16. K.C. SUBBANNA
    S/O LATE SHIRIYAPPA AGED ABOUT 69 YEARS
    R/O KABBAHALLI VILLAGE GUNDLUPET TALUK
    CHAMARAJANAGAR DISTRICT-571109
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                                        MFA No. 5031 of 2012




17. K.B. SUBBANNA
    S/O H.P. BASAPPA AGED ABOUT 59 YEARS
    R/O KABBAHALLI VILLAGE GUNDLUPET TALUK
    CHAMARAJANAGAR DISTRICT-571109

                                             ...RESPONDENTS

(R1 DELETED: SRI.M.SIVAPPA, ADVOCATE FOR R2, R3 & R9
(ABSENT): SRI C.M.JAGADISH, ADVOCATE FOR R7 AND R8
(ABSENT): SRI B.M.ARUN, ADVOCATE FOR R5 AND R6
(ABSENT): SRI S.NARAYAN, ADVOCATE FOR R10 (ABSENT):
NOTICE TO R4 & R11 TO R17 SERVED BUT UNREPRESENTED)


     MFA FILED U/S 104(1)(ffa) OF CPC, AGAINST THE ORDER
DATED 15.3.2012 PASSED IN MISC.NO.26/2008 ON THE FILE
OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSORE,
DISMISSING THE PETITION FILED U/S 92 OF CPC.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the appellants/petitioners

challenging the order passed by the Principal District &

Sessions Judge, Mysore in Misc.No.26/2008 whereby the

application filed by the petitioners under Section 92 of Civil

Procedure Code, seeking leave of the court for institution

of the suit against the respondents has been rejected.

MFA No. 5031 of 2012

2. The appellants/petitioners claims to be the trustees

of 'Sowkar Chenabasappa's Veerashiva Ashram'. Their

case is that the other trustees are trying to lease out the

trust property for a lesser sum. To protect the interest of

the trust, they have filed a suit. Along with the plaint,

they have filed an application under Section 92 of the Civil

Procedure Code seeking leave of the court for institution of

the suit. The said application has been dismissed. Being

aggrieved by the same, they are before this Court.

3. Sri H.N.Shashidhara, the learned Senior Counsel

appearing for the appellants has contended that under

Section 92 of the Civil Procedure Code, while granting

leave, the court has to examine the averments made in

the plaint and the petitioners have to establish that they

are interested parties to the trust and trust would be

public trust and there should be prima facie materials to

show that there is misappropriation of the trust property.

Instead of considering these aspects of the matter, the

MFA No. 5031 of 2012

trial court has decided the matter on merits and contrary

to Section 92 of Civil Procedure Code, dismissed the

Misc.Petition. In support of his contention, he has relied

on the judgment of the Hon'ble Apex Court in the case of

R.M.NARAYANA CHETTIAR AND ANOTHER vs.

N.LAKSHMANAN CHETTIAR AND OTHERS reported in

AIR 1991 SC 221.

4. None appears for the respondents. Even when the

matter was called on 02.01.2023, learned Senior Counsel

for the appellant has been heard for some time. None

appeared for the respondents. To give one more

opportunity, the matter has been listed to today. Even

today, none appeared for the respondents.

5. The appellants/petitioners claiming that they are

trustees to 'Sowkar Chenabasappa's Veerashiva Ashram'.

Their case is that some of the members have

misappropriated the trust property. Since it is a public

trust, to protect the interest of the trust, they have filed

MFA No. 5031 of 2012

the suit and they have also filed an application under

Section 92 of the Civil Procedure Code seeking leave of the

court.

6. For better understanding, Section 92 of the Civil

Procedure Code is extracted hereinbelow:

"Section 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;

MFA No. 5031 of 2012

[(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 (XX of 1863), [or by any corresponding law in 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

MFA No. 5031 of 2012

purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypres 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

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MFA No. 5031 of 2012

(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.]"

7. By reading the aforesaid provision it is clear that

the court while granting relief has to see whether the

petitioner having any interest in the trust and it should be

a public trust and there should be prima facie case to be

made out regarding the alleged breach. Even the Hon'ble

Apex Court in the case of R.M.NARAYANA CHETTIAR

(supra) has held as follows:

"10. Neither of the aforesaid decisions of this Court deal with the question as to whether before granting leave to institute a suit under S.92, Advocate-General, or later the Court, was required

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MFA No. 5031 of 2012

to give an opportunity to the proposed defendants to show cause why leave should not be granted. What learned counsel for the appellants urged, however, was that these decisions show that at the time when the Advocate-General or the Court is required to consider whether to grant leave to institute a suit as contemplated under S.92, it is only the averments in the plaint which have to be examined and hence, the presence of the defendant is not necessary."

8. The trial court instead of deciding whether the

appellants/petitioners are having any interest in the trust

or whether it is a non public trust or not, they have prima

facie proved the alleged breach, has decided the petition

filed under Section 92 as a original suit and dismissed the

Misc. Petition. The order passed by the trial court is

contrary to Section 92 of the Civil Procedure Code.

9. In view of the above, the appeal is allowed. The

order dated 15.03.2012 passed in Misc.No.26/2008 is set

aside. The matter is remitted back to the trial court to

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MFA No. 5031 of 2012