Karnataka High Court
Sri. Kadekan Prakash Kamath vs Sri. Vitobha Rukma Bai Devara Bhandaram on 9 February, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION NO.610 OF 2023 (IO)
BETWEEN:
1. SRI. KADEKAN PRAKASH KAMATH,
S/O LATE KADEKAN BHAVANIRAYA KAMATH,
AGED ABOUT 70 YEARS,
R/AT FLAT NO. 502, INLAND ELITE,
NEAR TV RAMAN PAI CONVENTION CENTRE,
KODIALBAIL, MANGALURU-575 003.
2. SRI. PADAV SURENDRANATH SHENOY
S/O VITTAL SHENOY,
AGED ABOUT 64 YEARS,
R/AT DOOR NO. 6-11/2,
SHREENIKETANA ,
B 11TH CROSS, VIVEKANANDANAGAR,
KODICAL, MANGALURU-575 006.
3. SRI. MAROLI SURENDRA KAMATH
S/O MAROLI DEVARAYA KAMATH ,
AGED ABOUT 80 YEARS,
R/AT MAROLI COMPOUND,
OPP. FLOWER MARKET ,
CARSTREET,
MANGALURU-575 001.
...PETITIONERS
(BY SRI. ARUN SHYAM M, SENIOR ADVOCATE FOR
SRI. SUYOG HERELE E., ADVOCATE)
AND:
2
1. SRI. VITOBHA RUKMA BAI DEVARA BHANDARAM,
O/AT V.T. ROAD,
MANGALURU-575 001
REP. BY RESPONDENT NO.2
2. SRI. M. VARADARAYA PRABHU
S/O M. RAMAKRISHNA PRABHU,
AGED ABOUT 75 YEARS,
R/AT AYODHYA PATI DHAM,
GANAPATHI TEMPLE ROAD,
MANGALURU 575 001
...RESPONDENTS
(BY SRI. A. MADHUSUDHANA RAO, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 22.08.2023 PASSED ON IA NO.4
IN O.S. NO.617/2023 ON THE FILE OF IST ADDITIONAL CIVIL
JUDGE, MANGALURU, DISMISSING THE IA NO.4 FILED UNDER
ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 19.12.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioners have assailed the correctness of the
order dated 22.08.2023 passed by the First Addl. Civil
Judge & JMFC at Mangaluru in O.S. No.617/2023 by which
an application filed by them under Order 7 Rule 11 of CPC
was rejected.
2. The parties shall henceforth be referred to as
they were arrayed before the trial court. The petitioners
were the defendants while the respondents were the
plaintiffs.
3. The suit in O.S. No.617/2023 was filed for the
following reliefs.
(a) For a declaration that the Defendant No.1 and 2
are not lawfully appointed trustees of the 1st
Plaintiff Bhandaram in accordance with the trust
deed dated 08-10-1923 and for consequential
prohibitory injunction restraining the Defendant
No.1 and 2 from committing/executing any acts,
deeds or things purporting to be the trustees of the
1st Plaintiff Bhandaram.
(b) For permanent prohibitory injunction restraining
the 3rd Defendant from appointing any trustees to
the 1st Plaintiff Bhandaram without the assent of
the 2nd Plaintiff and or in violation of the terms of
the trust deed dated 08-10-1923,purporting to be a
hereditary trustee of the 1st Plaintiff Bhandaram.
4. The plaintiffs claimed that a private family
trust was constituted by Sri Lakshmana Prabhu alias
Narayana Theertha Sanyasi on 08.10.1923. The trust
deed provided that after the lifetime of the founder
trustees the trusteeship would devolve hereditarily upon
the respective male issues of the founder trustees. The
plaintiffs claimed that since 1983 the plaintiff No.2 and late
Maroli Laxman Kamath were the surviving hereditary
trustees, of whom the plaintiff No.2 was the managing
trustee since 1983 as evidenced by the proceedings of the
meeting of the trustees of the plaintiff No.1. They further
claimed that in the year 1992 the plaintiff No.2 and Maroli
Laxman Kamath co-opted K. Mohan V. Nayak and
U.Vishwanath Nayak as the 'Hangami Trustees' so as to
the assist the plaintiff No.2 and Maroli Laxman Kamath.
The plaintiffs claimed that the co-option was invalid as it
was contrary to Clause 19 of trust deed dated 08.10.1923.
They contended that a 'Hangami Trustee' could be co-
opted from Gowda Saraswath community only when the
successors of a founder trustee or a trustee who has
resigned are minors, till such time they attain age of
majority.
5. The plaintiffs claimed that at the time of co-
option of K.Mohan V. Nayak and U. Vishwanath Nayak no
such circumstance existed. They further claimed that the
co-opted trustees were not appointed to fill up the post of
any trustees that fell vacant due to death or resignation of
previous trustees nor were they appointed during the
minority of any successor or any hereditary trustee. Thus
the plaintiffs claimed that the aforesaid persons could not
claim to be validly appointed trustees of the plaintiff No.1.
They further alleged that there were serious allegations of
misfeasance or malfeasance against the aforesaid co-opted
trustees and therefore the plaintiff was entitled to question
their conduct. The plaintiffs alleged that in order to cover
up their misdeeds, the aforesaid two persons ganged up
with the deceased Maroli Laxman Kamath and conspired to
remove the plaintiff No.2 as the managing trustee of the
plaintiff No.1. They, by their letter dated 15.10.1994
informed the plaintiff No.2 that they held a meeting of the
trustees on 14.10.1994 and had removed the plaintiff No.2
as the managing trustee of the plaintiff No.1.
6. The plaintiff No.2 rejected the assertions by
issuing a reply on 18.10.1994. The plaintiff No.2 filed O.S.
No.497/1997 against the aforesaid three persons for a
declaration that the resolution dated 14.10.1994 as illegal
and for a declaration that he continued to be the managing
trustee of the temple and for perpetual injunction
restraining the defendants therein from interfering with the
second plaintiff from functioning as the managing trustee
of the temple. This suit was dismissed vide judgment and
decree dated 19.02.2002 following which plaintiff No.2
filed R.A. No.110/2002 before the I Addl. Sr. Civil Judge,
Managluru. The appeal in R.A. No.110/2002 was allowed
by order dated 11.09.2008 and the Trial Court was
directed to frame correct issues and dispose of the suit in
accordance with law. The Trial Court again after recasting
the issues dismissed the suit on the ground that the suit
was hit by Section 92 of CPC. This judgment was
challenged in R.A. No.120/2010 which was allowed and the
case was remanded back to the trial court with a direction
to consider all the issues that arose in the suit.
8. The appellate court purportedly held that the
dismissal of the suit as barred under Section 92 of CPC
was incorrect. The trial court again in terms of its
judgment and decree dated 20.04.2012 dismissed the suit.
However, during the course of its judgment it observed
that "the resolution passed by the defendants No.1 to 3
removing the plaintiff No.2 as managing trustee of the
plaintiff No.1 bhandaram, is illegal and that K. Mohan V.
Nayak and U. Vishwanath Nayak were not the validly
appointed trustees". The suit was dismissed on technical
ground namely that the legal representatives of the
deceased trustee cum defendant No.1 were not brought on
record. Aggrieved by such dismissal, the plaintiffs filed
R.A. No.53/2012. The first appellate Court dismissed the
appeal by its judgment dated 04.08.2018 and upheld the
findings of the Trial Court. The plaintiffs have preferred
R.S.A. No.2379/2018 before this Court which is pending
consideration.
9. The plaintiffs claimed that the younger brother
of late Maroli Laxman Kamath namely the defendant No.3
in the year 2010, started asserting that he is the
hereditary trustee of the plaintiff No.1 on the ground that
he had succeeded to the trusteeship after the demise of
his brother in the year 1998. The plaintiffs claimed that
the claim of defendant No.3 was illegal as the immediate
younger brother of Maroli Laxman Kamath was
Mr. Ramakrishna Kamath who only could be the hereditary
trustee and not the defendant No.3. Mr.Ramakrishna
Kamath died in the year 2003 and he is survived by his
two sons, namely Ganesh Kamath and Harish Kamath.
The plaintiffs claimed that the third defendant along with
the 'Hangami Trustees' tried to induct Namdev Shenoy as
a trustee of the first plaintiff and also appointed him as the
managing trustee. Therefore another suit in O.S.
No.905/2011 was filed against the defendant No.3 Sri
Namdev Shenoy, Mohan Nayak and Vishwanath Nayak.
During the pendency of the suit, both Namdev Shenoy and
Vishwanath Nayak died.
10. The defendant No.3 therefore tried to induct
new trustees into the plaintiff No.1. The plaintiffs
therefore filed an application for interim injunction from
inducting any new trustees into the plaintiff No.1. That
application was allowed by order dated 17.01.2018.
Thereafter the suit was decreed on 03.03.2018. The court
answered issue No.2 in the affirmative and while doing so
upheld the contention of the plaintiff No.2 that he was the
managing trustee of the plaintiff No.1. Feeling aggrieved
by this judgment, the defendant No.3 and Mohan Nayak
filed R.A. No.34/2018 and the first appellate Court granted
stay of the judgment and decree passed in O.S.
No.905/2011. The plaintiff No.2 contends that as on the
date of death of Maroli Laxman Kamath it was only he who
was the hereditary trustee and hence without his consent
the defendant No.3 could not have declared himself to be
the hereditary trustee and could not have appointed any
'Hangami Trustees'. Plaintiffs alleged that defendant No.3
and others petitioned the Branch Manager, Canara Bank to
break open the locker of the plaintiff No.1 maintained with
the bank which was opened by the plaintiff No.2, Maroli
Laxman Kamath and Sringeri Pundalik Pai. Plaintiffs allege
that valuable golden and silver articles of the plaintiff No.1
were kept in the locker. The defendant No.3, Vishwanath
Nayak and Mohan Nayak took away the jewels from the
locker.
11. The plaintiffs therefore filed O.S. No.17/2013
for perpetual injunction restraining the bank from
permitting any person to operate the locker. An
application for interim injunction was granted in terms of
the order dated 03.08.2018. The plaintiffs claimed that
the third defendant along with Vishwanath Nayak and
Mohan Nayak tried to appoint Hanumanth Kamath as the
trustee of the plaintiff No. who started interfering with the
affairs of the plaintiff No.1. Therefore another suit in O.S.
No.1228/2014 was filed against him for perpetual
injunction to restrain him from interfering with the affairs
of the plaintiff No.1. An interim application for temporary
injunction restraining Mr. Hanumanth Kamath from
interfering with the day to day management was granted
in terms of the order dated 21.08.2015. This order was
challenged by Mr.Hanumanth Kamath in M.A. No.46/2015
which was dismissed on 23.11.2017.
12. The plaintiffs claimed that the defendant No.3
was aware of the order of injunction passed against
Mr.Hanumanth Kamath, did not challenge it which meant
to tacitly accepted that Mr.Hanumanth Kamath was not
appointed as per the terms of the trust. The plaintiffs
claimed that despite the order of injunction Mr.
Hanumanth Kamath continued to interfere, which
compelled the plaintiffs to file Misc. No.25/2018 for wilful
disobedience of the order of injunction. During the course
of trial of Misc. No.25/2018, the plaintiffs came to know
that the defendants No.1 and 2 were also claiming to be
the trustees of the plaintiff No.1. The plaintiffs alleged
that the defendant No.3 along with Mr. Hanumanth
Kamath had appointed the defendants No.1 and 2 as the
permanent trustees of the plaintiff No.1. The plaintiffs
claimed that this appointment of the defendants No.1 and
2 is illegal as they were not the successors in interest nor
the male lineal descendents of the founder trustees.
13. The plaintiffs alleged that the defendants tried
to operate the bank account of the plaintiff No.1 illegally
and had also filed income tax returns of the plaintiff No.1
through another Chartered Accountant. The plaintiffs
therefore caused a notice dated 31.01.2023 to the
Chartered Accountant as to how he could file the returns
though the earlier returns were filed by another Chartered
Accountant. The plaintiffs alleged that since the aforesaid
returns were signed by the defendants, they are
suspicious. Therefore the plaintiffs contend that the acts
of the defendants violate the terms of the trust deed and
therefore the plaintiffs filed the suit for the reliefs
mentioned above.
14. The defendants contested the suit on various
grounds. They also filed an application under Order 7 Rule
11 of CPC on the ground that
i. The suit was barred under Section 92 of CPC.
ii. That there was no cause of action for the suit and
the one mentioned in the suit was false, imaginary
and invented for the purpose of the suit.
iii. That the plaintiff No.3 was in the habit of filing such
frivolous suit, complaints before various authorities.
iv. That the plaintiff No.2 had approached the Court
with unclean hands and by suppressing material
facts.
v. That plaintiff No.2 had filed O.S.No.1442/2015
before the IV Addl. Civil Judge, Mangaluru for a
perpetual injunction restraining the defendant No.2
from conducting the annual "Ahoratri Bhajana
Saptaha" in the temple. That the defendant No.2
had filed an application for rejection of plaint as it
was barred Under Section 92 of CPC. That the
Court allowed the application rejecting the plaint
vide order dated 11.12.2015 and an appeal
preferred in R.A.No.11/2016 was dismissed on
23.07.2020.
15. This application was opposed by the plaintiffs
on the ground that the suit was not filed for any relief
under Section 92 of CPC and therefore the suit was
maintainable. On the contrary, they contend that this was
a private dispute of an individual nature and not in a
representative capacity. It was also contended that the
first plaintiff was a private family trust and therefore the
suit cannot be construed as one filed under Section 92 of
CPC. It is also contended that the suit was filed to restrain
illegitimate persons becoming trustees of plaintiff No.1.
16. The trial Court after considering contentions
urged by both parties rejected the application in terms of
the impugned order and held that;
i) That the plaintiff No.2 was asserting his right to the
office of trustee and denied the rights of the
defendants No.1 and 2. Therefore, they were
seeking a declaration of their individual rights and
did not complain breach of the trust requiring the
indulgence of the Court under Section 92 of the
CPC.
ii) As per the averments of the plaint, there were
proceedings pending against plaintiff No.2 and the
defendants and others in various cases. There is no
decision of the Court that the plaintiff No.2 had no
authority over the plaintiff No.1, which had become
final.
iii) That the plaint did disclose a cause of action which
was not illusory.
iv) That the plaint contained several facts which have
to be determined after a full fledged trial and
therefore, it cannot be rejected at the threshold.
Being aggrieved by the said order the defendant Nos.1, 2
and 3 had filed this revision petition.
17. The learned Senior Counsel for the petitioners
contended that the plaintiff No.2 is in the habit of filing
proceedings one after the other and the instant suit is one
such proceedings and therefore the same being
mischievous is liable to be nipped in the bud. He
contended that the plaintiff No.2 and his brother have filed
suits and other proceedings one after the other thereby
abusing the process of law and courts. A chart of the cases
so filed is extracted below:
Sl. Case name Relief Sought Status of the Case
No. &
Particulars
1. O.S. No. Filed by Plff 2 Dismissed after trial on
536/1994 (Vardaraya Prabhu) 19-7-1999.
through his brother
Venkatraya Prabhu The Appeal in RA
for declaration and No.671/2004 is dismissed
challenged the and cross appeal of D2 to
appointment of 4 was allowed as per
Mohan Nayak & judgment and decree
Vishwanath Nayak dated 17-3-2007.
as Hangami
Trustees of Temple R.S.A. No.1753/2007
Trust. before High Court of
Karnataka is also rejected
2. O.S.No. Filed by the PLff 2 Dismissed by the trial
497/1997 (Varadaraya court on 20-4-2012.
Prabhu) for The appeal bearing R.A
declaration inter alia No.53/2012 also came to
the meeting dated be dismissed on 4-8-
14-10-1994 and 2018.
resolution passed RSA No.2379/2018
removing R2 preferred by R2 is pending
(Varadaraya before the Hon'ble High
Prabhu) is illegal Court.
and further
declaration that he
continues to be
managing Trustee
of the Temple.
3. O.S.No. Filed by Plff. 2 The suit is dismissed as
256/2004 (Varadaraya per judgment dated
Prabhu) Injunction 27-1-2007. No appeal is
against Defendant preferred by R2.
(Hanumanth
Kamath) from
committing trespass
and mandatory
injunction to
remove pipeline laid
to the Temple and
payment of
damages.
4. O.S.No. Filed by the Plff.2 The suit was partly
961/2010 (Varadaraya decreed as per judgment
Prabhu) for dated 17-7-2017.
Permanent Appellant (Hanumanth
Injunction Kamath) filed first Appeal
restraining RA No.137/2017 before
Hanumanth Kamath II Addl. Senior Civil Judges
from conducting Court, Mangaluru is
yearly "Aahoratri pending enquiry.
Bhajana Saptaha"
festival in the
Temple.
5. O.S.No. Filed by Plff.2 The Suit has been decreed
905/2011 (Varadaraya with costs as per judgment
Prabhu) for dated 3-3-2018.
permanent
injunction Against which First appeal
restraining the preferred by Surendra
defendants from Kamath in RA the
interfering with the No.34/2018 and the
day to day same is pending.
management of the
Temple and from In RA. No.34/2018 the
erecting any Trial Court decree has
structure in the been stayed vide Order
precincts of the dated 30-7-2019 in I.A. No
temple. II and R2 (Varadaraya
Prabhu) preferred WP
No.20287/2018 before
High Court of Karnataka
and the same is pending
enquiry.
In RA No.34/2018 as per
I.A. No.III filed by R2
(Varadaraya Prabhu) U/O
XXXIX Rule 1 & 2 CPC
restraining Appellant
(Surendra Kamath) from
conducting Bhajana
Saptaha and the same was
dismissed by First
Appellate Court on
15-11-2018 against the
same R2 (Varadaraya
Prabhu) preferred an
before IV Add. District &
Sessions Judge, D.K.
Mangaluru and the same
came to be dismissed on
27- 9-2018.
Execution Petition filed
before trial court in
filed by and R2
(Varadaraya Prabhu)
before the I Addl. Civil
Judge, Mangaluru. D.K.
alleging willful
disobedience of decree U/O
21 Rule 32(1) of CPC and
the same is pending
enquiry.
6. PCR NO. Private Complaint B report was filed as the
59/2013 by plff.2 against matter is of civil nature.
Hanumantha Upon filing the objections
(C.C.No. Kamath, Naamdev to B Report, learned
113/2017) Shenoy, Maroli Magistrate took cognizance
Surendra Kamath, of the alleged offences
Mohan V Nayak and against the accused
Vishwanath Nayak persons vide order dated
for offences 25-03-2017. The Criminal
punishable under Petition No.6247/2017
sections 143, 145, seeking quashing of the
427, 379, 380, 381 proceedings came to be
and 149 of IPC. allowed and the matter
was remanded back to
learned Magistrate vide
order dated 4-7-2019. The
matter is pending
enquiry.
7. PCR NO. On the basis of the B report was filed stating
163/2013 Complaint given by the matter is of civil
Plff.2 (Varadaraya nature. Upon filing the
Prabhu) before the Objections to B Report,
II JMFC Court, learned Magistrate directed
Mangaluru, th D.K. Police Inspector, and
against the accused Mangaluru North P.S. to
therein and another take up the further
(Since deceased) for Investigation vide order
the alleged Offences dated the 31-12-2015. The
under sections 406, Criminal Petition
419, 420, 506 and No.4858/2017 seeking
149 IPC. quashing of the
proceedings came to be
dismissed vide order dated
4-7-2019 as corrected by
order dated 17-1-2020.
The matter is pending
enquiry in Trial Court.
8. O.S.NO. Filed by the Plff.2 The matter is pending
17/2013 (Varadaraya enquiry in Trial Court.
Prabhu) before the
IV Addl Civil Judge,
Mangaluru D.K
against Canara
Bank for permanent
prohibitory
injunction
restraining the Bank
or its officers from
allowing any
person/entity other
than Plff.2
(Varadaraya
Prabhu) herein to
operate the locker
allotted to Temple.
9. C.C.NO. Consumer The Complaint came to be
146/2013 Complaint filed by dismissed holding that R2
Plff.2 The (Varadaraya Prabhu) strict
(Varadaraya is not a Consumer.
Prabhu) before
District Consumer No Appeal preferred and
Disputes Redressal final
Commission, D.K
against the
Canara Bank
alleging deficiency
in service for having
break open the safe
locker and operated
the Bank account of
the Trust with the
Third Party without
the permission of
the Plff 2
(Varadaraya
Prabhu)
10. PCR NO. Complaint by Plff.2 On the direction passed by
27/2014 (Varadaraya the learned Magistrate, the
Prabhu) before II Police registered the FIR in
Addl. Senior Civil & Crime No.129/2014.
CJm Judge & CJM Criminal Petition
Court, Mangaluru, No.4966/2014 filed
D.K. against officers seeking quashing of the
of the Canara also order referring the matter
of the Bank for the for investigation and also
alleged Offences of the proceedings. Vide
under sections 406, order dated 25-6-2019,
417, 378, 380, 381, the Petition was allowed
419, 420, 506 and and remitted the matter
149 IPC. back for afresh and is
pending enquiry.
11. O.S.No. Filed by the Plff.2 Temporary Injunction
1228/2014 (Varadaraya granted on
Prabhu) for 21-8-2015 against which
declaration that Defendant preferred MA
Defendant that 46/2015 before III
(Hanumath Kamath) Addl Senior Civil Judge,
is not lawfully Mangaluru. DK which was
appointed trustee of dismissed on 23-11-2017
Temple and for and WP No.11842/2018
consequential before High Court Of
permanent Karnataka and the same is
injunction pending Enquiry.
restraining him from
claiming Or As per order in IA IV filed
functioning Or by Defendant U/O VII Rule
interfering with the 11 CPC was rejected on 4-
management of 1-2019 against the same
preferred before High
Court of Karnataka and the
same is pending enquiry.
The main suit is also
pending enquiry.
R2 (Varadaraya Prabhu)
also filed Misc case
25/2018 (U/o XXXIX RULE
2A CPC) for contempt
alleging willful
disobedience of order
dated 21-8-2015 and the
same is pending enquiry.
R2 (Varadaraya Prabhu)
also filed Misc case
16/2023 (U/o XXXIX RULE
2A CPC) for contempt
alleging willful
disobedience of order
dated 21-8-2015 against
M.Surendra Kamath and
the same is pending
enquiry.
12. O.S.No. Filed by the Plff.2 The Plaint was rejected as
1442/2015 (Varadaraya barred under Section 92
Prabhu) for CPC as per order dated 11-
Permanent 12-2015.
Injunction
restraining the The Appeal preferred by
Petitioner (surendra Plff .2 (Varadaraya Prabhu)
conducting yearly dismissed by First
"Aahoratri Bhajana Appellate Court on 23-07-
Saptaha" 2020.
Festival in the
preferred by R2 is pending
before the Hon'ble High
Court.
13. O.S.No. Permanent As per order in IA IV filed
617/2023 Prohibitory by Defendant U/O VII Rule
Injunction against 11 CPC was rejected on 22
Defendants K. 8-2023 against which the
Prakash Kamath, above CRP is filed. Before
M. Surendranath the learned Trial Court the
Shenoy and Maroli case is posted for Orders
Surendra Kamath on IA No.II & III (U/o
not to act as XXXIX Rule 1&2 CPC)
trustees of the against the Defendants on
Temple. 13-10-2023.
18. He therefore contends that the present suit is
also like one of the many other suits filed by the plaintiffs
and therefore deserves to be nipped in the bud. He
contends that the suit filed by the brother the of plaintiff
No.2 in O.S.No.536/1994 was dismissed and
R.A.No.671/2004 was also dismissed and
RSA.No.1753/2007 was dismissed by this Court and it was
observed as follows:
"It is seen that the Trust in question was for the
benefit of the Gowda Saraswath Bramin Community,
which would imply that it was for the benefit of a
fluctuating body of persons and no fixed group of persons
could be identified as beneficiaries, in such an event, it
cannot be said that the Trust was the private Trust. This
is a fact apparent without any elaborate evidence in this
regard. The Defendants having raised a plea that there
was bar under Section 92 of CPC and trial court having
framed an issue as to the maintainability and having
answered the issue in the negative on the footing that the
suit was not in compliance with Section 92 and therefore
not maintainable, cannot be said to be irregular or illegal.
There is no question of law that arise for consideration."
19. The learned Senior Counsel therefore
contended that this finding not only binds the brother of
the plaintiff No.2 but also the plaintiff No.2. He further
contended that the plaintiff was removed from the
trusteeship of the trust in terms of a resolution dated
14.10.1994 which was challenged by him in O.S.
No.497/1997 which was dismissed on 20.04.2012 and R.A.
No.53/2012 was also dismissed. He therefore contends
that as on date the plaintiff No.2 has no locus standi to file
a suit, even if he is trying to exercise his individual rights.
He referred to the finding recorded in R.A. No.53/2012
where it was held "when the plaintiff's appointment
admittedly is not in accordance with the terms of trust, he
cannot challenge the appointment of the hangami trustees
in the plaintiff/trust". It was further held "no doubt the
plaintiff No.2 is able to prove that the appointment of
defendants No.2 and 3 is not in accordance with law and
the defendants No.2 and 3 along with deceased defendant
had no authority to pass the resolution dated 14.10.1994
but does not mean that the plaintiff No.2 is entitled to the
relief claimed in the suit". He therefore contended that
unless this finding was set aside in RSA.No.2379/2018, the
plaintiff No.2 has no locus standi to file the present appeal
for any declaration.
20. The learned Senior Counsel further claimed
that the plaintiff had No.2 filed O.S.No.1442/2015
restraining the defendant No.2 from conducting the
"Ahoratri Bhajana Saptaha" which was rejected in terms
of an order dated 11.12.2015. In an appeal preferred in
R.A.No.11/2016 the appellate Court held "wherefore
further the fact remaining that second plaintiff was
removed as the managing trustee of first plaintiff in the
year 1994 itself. Wherefore the plaint averments per se
unfolded the fact that the plaintiff at present has failed in
his legal battle to prove himself as the managing trustee of
the plaintiff No.1. Therefore, the plaint averments prima
facie shows that ever since removal in 1994, the second
plaintiff has no locus standi or right to claim, to represent
the temple. The second plaintiff cannot file a suit using the
name of first plaintiff because he has no representative
character to file suit in the name of the endowment itself".
The learned Senior Counsel contended that the plaintiff
No.2 had filed R.S.A. No.1418/2018 which is pending
consideration. The learned Senior Counsel thus contended
that even if it is assumed that the plaint is not for any
reliefs falling under Section 92 of CPC, the suit is liable to
be rejected on the ground that the plaintiff No.2 has no
locus standi and therefore, no cause of action has accrued
to him to file the present suit.
21. Per contra, the learned counsel for the
plaintiffs submitted that the suit is not filed for any reliefs
under Section 92 of CPC and therefore, it is not barred
under Section 92 of CPC. He submitted that the suit
essentially was for vindication of the claim of the plaintiffs
that the defendants No.1 and 2 are not the lawfully
appointed trustees of the plaintiff No.1 and for prohibitary
injunction restraining them from doing any acts as the
trustees of the trust and for perpetual injunction
restraining the defendant No.3 from appointing any
trustees to the plaintiff No.1 without the consent of the
plaintiff No.2. He therefore submits that even if the
plaintiff No.1 is treated as a public trust, there is no
allegation in the plaint alleging breach of the trust
warranting the direction of the Court for the administration
of the plaintiff No.1. In support of his contention, the
learned counsel relied upon the following judgments.
1) Srihari Hanumandas Totala Vs. Hemant Vithal Kamat
and Others - (2021) 9 SCC 99;
2) Mahant Pragdasji Guru Bhagwandasji vs. Patel
Ishwarlalbhai Narsibhai and Others - (1952) 1 SCC
323;
3) Swami Parmatmanand Saraswati and another v. Ramji
Tripathi and another - AIR 1974 SC 2141;
4) Muhammad Azhar Ali Vs. Abdul Razzaq Bidri & Ors. -
CRP No.200007/2018;
5) R.M. Sundaram @ Meenakshisundaram vs. Sri
Kayarohanasamy and Neelayadhakshi Amman Temple
- 2022 SAR (Civ) 1022;
6) Isabella Johnson (Smt.) V. M.S. Susai (dead) by LRs.
- (1991) 1 SCC 494;
7) P.V. Gururaj Reddy & another vs. P. Neeradha Reddy
and Others - (2015) 8 SCC 331;
8) Sundaralingam Chettiar & Ors. Vs. S. Nagalingam
Chettiar and Ors. - 1957 (70) LW 940;
9) Christopher Karkada and Others vs. Church of
SouthIndia & Ors - ILR 2012 KAR 725;
He therefore submitted that the suit is maintainable.
22. I have considered the submissions made by
the learned senior counsel for the defendants as well as
the learned counsel for the plaintiffs.
23. A perusal of the plaint indicates that the
challenge by the plaintiffs is to the appointment of the
defendants No.1 and 2 as trustees of the Trust on the
ground that the same was not in accordance with the deed
of trust dated 08.10.1923. There is no allegation
regarding breach of trust but on the contrary, the
allegations revolve dispute relating to the internal
administration of the Trust. The plaint does not contain
any allegation requiring the intervention of the Civil Court
under Section 92 of CPC. This court in the case of Sri
Satya Sai Loka Seva Trust & Ors. V. Sri Sathya Sai
Central Trust & Ors. (R.S.A. No.140/2019) had held
that a suit challenging the internal affairs of a Trust does
not fall within the prescription contained in Section 92 of
CPC. Therefore, the contention of the learned senior
counsel for the defendants that the reliefs sought for in the
suit fall within Section 92 of CPC, is liable to be rejected.
24. However, it is relevant to note that the
trustees had removed the plaintiff No.2 in terms of a
resolution dated 14.10.1994 which was unsuccessfully
challenged by the plaintiff No.2 in O.S. No.497/1997 and
an appeal filed by him in R.A. No.53/2012 was dismissed
on 04.08.2018. The Regular Second Appeal filed by the
plaintiff No.2 in R.S.A. No.2379/2018 is pending
consideration before this court where no interim order is
granted. The plaintiff No.2 has mentioned in the instant
suit about his removal from the trusteeship of the Trust,
the consequent challenge by him in O.S. No.497/1997 and
the consequent appeal filed in R.A.No.53/2012 which was
dismissed and the R.S.A. No.2379/2018 which is pending.
Therefore, the plaintiff No.2 can no longer claim to be the
hereditary trustee of the plaintiff No.1 and consequently
cannot institute this suit on behalf of the plaintiff No.1. He
is not entitled to file the present suit as a trustee of the
Trust. Therefore, as rightly contended by the learned
senior counsel for the defendants, there is no cause of
action for the plaintiff No.2 to file the present suit.
25. In that view of the matter, the revision petition
deserves to be allowed. Consequently, it is allowed and
the impugned order dated 22.08.2023 passed by the trial
court in O.S. No.617/2023 is set aside and the plaint is
rejected as the plaintiff No.2 has presently no locus standi
to file the suit and the cause of action mentioned in the
suit does not accrue to the plaintiff No.2. It is however
open for the plaintiff No.2 to institute a fresh suit only
after R.S.A. No.2379/2018 is unconditionally allowed in
favour of the plaintiff No.2.
26. In view of disposal of this review petition, all
pending applications stand disposed.
Sd/-
JUDGE
BVV/RH
