Karnataka High Court
Sri G S Sudharshan vs Grama Seva Sangha Trust on 2 September, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 8514 of 2023
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.8514 OF 2023 (CPC)
BETWEEN:
1. SRI G.S. SUDHARSHAN,
AGED 65 YEARS,
S/O. LATE G. N. SRIRAMU,
R/AT NO.14, S. B. ROAD,
V. V. PURAM, BENGALURU - 560 004.
2. SMT. AMBUNJAMMA,
W/O. LATE SRI R. N. NARENDRANATH,
AGED 69 YEARS,
R/AT NO.17/1, PAPAIAH STREET,
DODDA MAVALLI,
BENGALURU - 560 004.
3. SMT. MAMATHA B.V.,
D/O. VENKATRAMA B.,
AGED 53 YEARS,
NO.42, PAPAIAH STREET,
Digitally signed by
CHANDRASHEKAR DODDAMAVALLI MARAMMA TEMPLE,
LAXMAN
KATTIMANI BASAVANAGUDI,
Location: High
Court of Karnataka BENGALURU - 560 004.
SRI B. V. SAMPATH,
AGED 62 YEARS,
S/O. B. M. VENKATARAMANAPPA,
R/AT NO.24, ANNAPURNESHWARI NILAYA,
SIDDEEOWDA STREET,
DODDA MAVALLI,
BENGALURU - 560 004.
DEAD ON 7TH SEPTEMBER 2023.
NO LRS ARE BROUGHT ON RECORD
AND IS MENTIONED IN CAUSE TITLE
HE WAS PARTY IN COURT BELOW
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MFA No. 8514 of 2023
4. SRI V. MANJUNATH,
S/O. P. VEERABHADRAPPA,
AGED 55 YEARS,
R/AT NO.69, MANJINNA BALLI,
MAVALLI MAIN ROAD,
NEAR LALBAGH WEST GATE,
BENGALURU - 560 004.
5. SRI V. CHANDRASHEKAR,
S/O. P. VEERABHADRAPPA,
AGE 56 YEARS, R/AT NO.33/4,
2ND FLOOR, KRUMBIGAL ROAD,
NEAR LALBAGH MAIN GATE,
BASAVANAGUDI,
BENGALURU - 560 004.
6. SRI KAVIRAJA
S/O. PUTTAMUDDAPPA,
AGED 44 YEARS,
R/AT NO.E-86, OLD NO.33,
RANGAPPA STREET, NEAR LALBAGH,
CHIKKA MAVALLI,
BENGALURU - 560 004.
7. SRI S. SOMASHEKAR,
S/O. LATE SHIVARAM,
AGE 57 YEARS,
R/AT NO.02, YELLAPPA STREET,
CHIKKAMAVALLI,
BENGALURU - 560 004.
8. SRI S. JAGANNATHA,
S/O. LATE M. SRINIVAS,
AGED 58 YEARS,
R/AT NO.35/3, RAMAMURTHY ROAD,
CHIKKAMAVALLI,
BENGALURU - 560 004.
9. B. V. RAKESH S/O. VIJAY KUMAR,
AGED 32 YEARS,
NO.1B/25, NEW CROSS ROAD,
CHIKKA MAVALLI,
BENGALURU - 560 004.
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MFA No. 8514 of 2023
10. SRI G. VENKATESH S/O. GOPAL,
AGED 49 YEARS, R/AT NO.2,
MUTTON STALL ROAD,
DODDAMAVALLI,
BENGALURU - 560 004.
11. J. PADMANABHA,
S/O. M. GANESH MUDALIAYAR,
AGED 42 YEARS,
NO.1/A PAPAIAH STREET,
DODDAMAVALLI,
BENGALURU - 560 004.
12. N. P. SANTHOSH KUMAR,
AGED 37 YEARS,
A/O K /N PRABHU DEV NO.12 4TH CROSS,
LALBHAGH FRONT ROAD,
DODDAMAVALLI,
BENGALURU - 560 004.
...APPELLANTS
[BY SRI M.R.RAJAGOPAL, SENIOR COUNSEL FOR
SRI RAGHU PRASAD B.S., ADVOCATE (PH)]
AND:
1. GRAMA SEVA SANGHA TRUST
OLD CORPORATION NO.25/A,
SUSHEELA ROAD,
(MARAMMA TEMPLE ROAD),
CHIKKAMAVAHALLI,
BANGALORE - 560 004.
2. SRI N. VENKATESH S/O. NAGAPPA,
AGED ABOUT 78 YEARS,
R/AT NO.58,
MARAMAM TEMPLE ROAD,
CHIKKAMAVAHALLI,
BANGALORE - 560 004.
3. SRI M. UDAY SHANKAR,
SON OF LATE H. MALLESHAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.40,
SIDDEGOWDA STREET,
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MFA No. 8514 of 2023
DODDAMAVAHALLI,
BANGALORE - 560 004.
4. SRI B. S. GOPALA KRISHNA
SON OF R. SRINIVASAPPA,
AGED ABOUT 68 YEARS,
R/AT NO.1/A, BANASHANKARI
TEMPLE ROAD, DODDAMAVAHALLI,
BANGALORE - 560 004.
5. SRI B. BANASHANKARAPPA
SON OF EARAPPA,
AGED ABOUT 86 YEARS,
R/AT NO. 26 KEMPANNA STREET,
DODDAMAVAHALLI,
BANGALORE - 560 004.
6. SRI S. RAMACHNADRAPPA
SON OF K. SRINIVASAPPA,
AGED 71 YEARS,
R/AT NO.25,
SRI MARAMMA TEMPLE STREET,
DODDAMAVAHALLI,
BANGALORE - 560 004.
7. SRI M. NAGARAJ
SON OF MUNIRAMAIAH,
AGED 68 YEARS, R/AT NO.26,
MUDDALAPPA CROSS,
DODDAMAVAHALLI,
BANGALORE - 560 004.
8. SRI M. VISHWANATH
SON OF MUNISHAMAIAH,
AGED 65 YEARS, R/AT NO.415,
MARUTHI LAYOUT, BELTHUR,
KADUGODI POST,
BANGALORE - 560 067.
9. SRI B. A. KRISHNAMURTHY
SON OF ABBAIAPPA,
AGED 64 YEARS, R/AT NO.9,
PAPAIAH STREET, DODDAMAVAHALLI,
BANGALORE - 560 004.
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MFA No. 8514 of 2023
10. SRI MUDLAIAH SON OF HANUMAIAH,
AGED ABOUT 81 YEARS,
R/AT NO.596, 7TH MAIN,
TOM CROSS, 3RD STAGE,
J. P. NAGAR, BANGALORE - 560 078.
11. SRI B. M. CHELUVARAJU,
S/O. B. N. MARAPPA,
AGED 63 YEARS, NO.3,
APPAIANNA STREET,
DODDAMAAVALLI,
BENGALURU - 560 004.
12. STATE BANK OF INDIA,
SAJJAN RAO CIRCLE,
P. B. NO.423, NO.116,
KAVI LAKSHMISHA ROAD,
BANGALORE.
13. KARNATAKA BANK,
R. V. ROAD BRANCH,
R. V ROAD,
BASAVANAGUDI,
BANGALORE.
...RESPONDENTS
[BY SRI R.S.RAVI, SENIOR COUNSEL FOR
SRI B.ROOPESHA & SRI SANDEEP M.K., ADVOCATES FOR R2 TO R9
AND R11 (PH);
SRI AJITH KALYAN, ADVOCATE FOR R10 (PH);
NOTICE SERVED TO R1, R12 AND R13]
THIS MISCELLANEIOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 03.11.2023
PASSED IN MISC. NO.346/2022 ON THE FILE OF THE PRINCIPAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE
PETITION FILED U/S.92 OF CPC.
THIS MISCELLANEIOUS FIRST APPEAL, HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 25.07.2024, THIS DAY,
THROUGH VIDEO CONFERENCE, THE COURT PRONOUNCED THE
FOLLOWING:
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MFA No. 8514 of 2023
CAV JUDGMENT
Challenging order dated 03.11.2023 passed by
Principal City Civil and Sessions Judge, Bengaluru, in
Misc.no.346/2022 under Section 92 of Code of Civil
Procedure, 1908 ('CPC' for short), this appeal is filed.
2. Sri M.R.Rajagopal, learned Senior Counsel
appearing for Sri Raghu Prasad B.S., advocate for appellants
submitted appeal was by petitioners in Misc.no.346/2022
filed under Section 92 of CPC praying for grant of leave to
institute a suit for removal of trustees, appointment of new
trustees, administrator and for setting a scheme in respect of
respondent no.1, namely Grama Seva Sangha Trust ("Trust"
for short), a public trust managing Dodda Mavalli Bilsilu
Maramma Temple ('temple' for short) situated at no.12,
Mavalli main road, Mavalli, Bengaluru.
3. It was submitted, petitioners were residents of
Mavalli village and devotees of deity 'Maramma' and had
concern for temple and its properties. It was submitted most
of respondents no.2 to 11 were leading luxurious life even
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without any avocation, job or business, which clearly
signified that they were misusing funds of temple for their
own benefits. Hence, with intention to protect temple and its
properties, petitioners had sought leave under Section 92 of
CPC to file a representative suit. It was submitted, though
petitioners had alleged misuse of funds and properties of
trust, Trial Court refused to grant leave merely on ground
that petitioners had bald allegations without production of
documents.
4. It was submitted when allegations made in plaint
were with sufficient particulars and plaint was appended with
documents, refusal to grant leave would be uncharitable and
indicate non application of mind. It was submitted other
reason assigned that petitioners were espousing personal
cause was without any basis or justification. Nowhere in
plaint or petition, petitioners had expressed any personal
grievances and had not sought any personal reliefs. It was
submitted, reason assigned by Trial Court was by reference
to averments in written statement/affidavit and therefore
contrary to law.
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5. It was submitted examination of merits of suit
was not contemplated at stage of grant of leave for filing suit
under Section 92 of CPC. Therefore, refusal to grant leave
would be contrary to law. To support said submissions,
reliance was placed on decision of Hon'ble Supreme Court in
case of Swami Paramatamanand Saraswati v. Ramji
Tripathi, reported in (1974) 2 SCC 695 held as follows :
"14. It is, no doubt, true that it is only the
allegations in the plaint that should be looked into
in the first instance to see whether the suit falls
within the ambit of Section 92 (See Association of
R.D.B. Bagga Singh v. Gurnam Singh [AIR 1972
Raj 263 : 1972 WLN 157 : 1972 Raj LW 182]
, Sohan Singh v. Achhar Singh [AIR 1968 P&H 463
: ILR 1968 Punj 359 : 1968 Cur LJ 480] and Radha
Krishna v. Lachhmi Narain [AIR 1948 Oudh 203 :
1948 OWN 179] . But, if after evidence is taken, it
is found that the 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 a
suit purporting to be brought under Section 92
must be dismissed. This was one of the grounds
relied on by the High Court for holding that the suit
was not maintainable under Section 92".
6. In so far as conditions required to be satisfied
while seeking leave to institute suit under Section 92 of CPC,
reliance was placed on ratio in Ashok Kumar Gupta v.
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Sitalaxmi Sahuwala Medical Trust, reported in (2020) 4
SCC 321, wherein after referring to various earlier decisions,
it was held as follows:
"12. Three conditions are, therefore, required to be
satisfied in order to invoke Section 92 of the Code
and to maintain an action under the 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 the said section.
Consequently, if any of these three conditions is
not satisfied, the matter would be outside the scope
of said Section 92."
7. It was submitted, in a suit filed for framing a
scheme for administration of public trust, earlier removal of
petitioners from Board of Trustees, by itself would not color
relief sought as personal. Relying on decision of High Court
of Madras in case of Sengunthar Charitable Trust v. R.
Manickam, reported in 2012 SCC OnLine Mad 2368, it
was submitted at stage of granting leave to institute suit,
issuance of notice to defendants was not mandatory, if it was
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likely to lead to unnecessary delay. Referring to decision in
case of Mulla Gulam Ali & Safiabai D. Trust v. Deelip
Kumar & Co., reported in (2003) 11 SCC 772, it was
submitted, if trust was not administered properly and objects
of trust not carried out, for benefit of public, resort to
Section 92 of CPC for having a scheme framed for proper
administration of trust by displacing trustees would be
justified.
8. It was submitted, High Court of Allahabad in
Devendra Kumar Mishra Vs. Ramendra Kumar and
others, reported in AIR 2006 All. 82, had held reference to
deed of trust for purpose of giving finding about nature of
trust whether public or private was held to be unsustainable.
Therefore, when at time of consideration of application for
leave to file suit, reference to any material beyond plaint was
prohibited, reason assigned by Trial Court that in instant
case, application was not accompanied with documents
would be contrary to law.
9. It was submitted, respondent no.10, who was one
of trustees had filed objections stating that none of other
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trustees were privy to accounts of trust or were permitted to
look into them and that same were exclusive to Secretary
and Treasurer. He had also stated others had not seen
statement from Bank about deposits and donations given by
disciples of temple and that documents/statements produced
by trustees were fabricated and false statements, produced
for first time before Court. Said respondent had in fact
expressed no objection for appointment of receiver or an
administrator to trust for efficient management and
administration of temple. Such being case, refusal to grant
leave was highly irregular and called for interference.
10. On other hand, Sri R.S.Ravi, learned Senior
Counsel appearing for Sri Roopesha and Sri Sandeep M.K.,
advocates for respondents no.2 to 9 and respondent no.11,
sought to oppose petition. At outset, it was submitted, in
their written statement, defendants had pointed out that
prior to 31.10.2021, petitioner no.1 and husband of
petitioner no.2 were appointed as co-members of trust and
as such participated in administration/management of trust.
They insisted on being made trustees. On refusal by
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Trustees, they began making baseless allegations against
trust and trustees. When it was found that they were
collecting money from public, they were removed from trust
on 31.10.2021, after issuing show cause notice. Same was
referred to in plaint. To wreck vengeance against removal,
petitioners no.1 and 2 had joined few others and filed
present plaint/petition. Thus, it was clear that suit was for
espousal of personal or private interest and hence refusal of
leave to file suit was justified.
11. It was submitted, though there was prayer for
removal of trustees, petitioners had not made allegations
against each of trustees but only made bald allegations
against President, Vice President and Secretary of Trust.
Petitioners had also not sought any relief for being included
in management of trust. It was submitted petition under
Section 92 of CPC was totally bereft of any material with
regard to basic requirement for such petition namely, breach
of Trust, by relying on decision in case of Harendra Nath
Bhattacharya v. Kaliram Das, reported in (1972) 1 SCC
115. Hence, trial Court rightly refused leave.
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12. It was submitted, contents of plaint (upto para-
15), were mainly to support claim for removal from
trusteeship. But there was no specific prayer for removal
from trusteeship. It was submitted, audited balance sheets
of trust, income tax returns with acknowledgement from
year 2011 to 2022, income and expenditure statement etc.,
produced along with written statement clearly established
that there was no mismanagement of funds of trust or its
properties.
13. It was submitted, in Vidyodaya Trust v. Mohan
Prasad R, reported in (2008) 4 SCC 115, Hon'ble Supreme
Court had referred to decision in Swami Paramatmanand's
case (supra), it was held, object of amendment to Section
92 of CPC by inserting sub-section (3) was to protect public
trusts from being subjected to harassment by frivolous suits.
It was further held, said amendment, required Trial Court to
analyze averments in plaint to find out main object behind
suit. If it was for vindication of individual or personal rights,
same would be beyond scope of Section 92 of CPC. Only in
case plaintiffs do not sue for vindication of right of public,
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application for leave could be considered. It was observed,
object or purpose of suit was determining factor and Court
has to go beyond relief sought.
14. Sri Ajit Kalyan, learned counsel appearing for
respondent no.10 referring to objections filed submitted,
respondent no.10 was nominated as trustee in year 2003. It
was stated therein that he was asked by Councilor, who
claimed to be Secretary of Trust to attend meetings, to count
money in hundi and put his signature. It was further stated,
he was unaware, whether subsequently hundi amount was
deposited in Bank or otherwise and likewise incase of rents
collected from Choultry. It was stated that said information
was privy only to Treasurer and Secretary and nobody else
had seen accounts or accounting and in meetings, they were
called only to affix their signatures without permission to
raise any questions. It was stated in year 2011, trust would
be formed and respondent no.10 would also be made one of
trustees and believing that he was rendering noble service to
temple, he had agreed to it. It was submitted, taking note of
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above facts and circumstances, appropriate orders may be
passed.
15. In reply, learned Senior Counsel for petitioners
submitted, none of contentions of respondents established
any personal interest of petitioners. In-fact, assertions by
respondent no.10, one of trustees amounted to admission of
certain allegations. It was submitted, Section 92 of CPC
required allegations to be stated in petition. It was submitted
paras-14 to 18 disclosed that respondents no.2 to 12 had by
claiming themselves to be nominated, come together and
registered trust deed, nominating themselves as trustees for
life and designating themselves as President, Vice President,
Secretary, Joint Secretary and Treasurer. Same was by
overriding original persons who had executed original trust
for utilization of temple fund and management of temple
properties for benefit of temple and devotees. It was further
alleged that persons who claimed themselves as trustees had
found that temple got large followers/devotees who
contributed very generously to temple and a Kalyana
Mantapa was constructed, had permitted venders to trade on
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temple property, many of whom were paying rents daily or
monthly basis and even amount collected in Hundies inside
temple totaled to several Crores of rupees a year. Further
open space in an around temple was given for parking by
collecting parking charges.
16. Even MPs and MLAs had contributed lacks of
rupees during annual fair etc. It was also stated though
several attempts were made calling upon office bearers to
render accounts (including filing applications under RTI Act
and issuing legal notices), they were orally abused and
denied information. Attention was drawn to specific and
unequivocal assertion that majority of defendants no.2 to 11
had no avocation but were leading lavish life apparently by
misusing funds of temple, by playing fraud on public as well
as temple and its properties, would constitute specific
assertion about breach of trust as well as allegation of
misuse of trust. Such being case, Trial Court was not
justified in refusing application.
17. In response, learned Senior Counsel for
respondents no.2 to 9 and 11 submitted fact that neither
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petitioners nor respondent no.10 had taken any action in
case of failure by answering respondents to render account,
until after removal of petitioner no.1 and husband of
petitioner no.2 indicated that actual cause being agitated
was against removal and claim for being included as
trustees. It was submitted even respondent no.10 had not
taken any action and his pleadings were only for purposes of
petition which lacked bonafide. Said aspect having been
discerned by Trial Court after meticulous examination of
pleadings, in tune with requirements of law. No case of
perversity or material irregularity having been made out,
appeal lacked merit and sought for its dismissal.
18. Heard learned counsel and perused impugned
order and record.
19. From above, it is seen petitioners are challenging
refusal to grant leave to file representative suit against trust
on ground that order passed was contrary to material on
record. Therefore, point that arises for consideration is:
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"Whether order passed by Trial Court refusing to
grant leave to file suit under Section 92 of CPC
calls for interference?"
20. As per petitioners, Misc.no.346/2022 is filed on
ground of breach of trust and directions of Court are
necessary for administration of Trust; they are also seeking
for removal of trustees under sub-clause (a), for
appointment of new trustees under sub-clause (b), settling
of scheme under sub-clause (g) and appointment of
administrator under sub-clause (h) of Section 92 (1) of CPC.
21. As per respondents no.2 to 9 and 11, petition
lacks specific plea about breach of trust and filed in private
interest as it was after removal of petitioner no.1 and
husband of petitioner no.2, for which leave cannot be
granted.
22. While passing impugned order, learned trial Judge
adverted to pleadings and contentions of parties, framed
points for consideration and passed reasoned order. It firstly
observes, dispute probably arose in year 2021 after removal
of petitioner no.1 from post of co-member of trust, by
referring to letter dated 07.10.2021 proposing to take action
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and letter dated 13.10.2021, intimating removal from co-
membership. Further, present system of management was in
existence from 2011 and petitioners failed to point out to any
specific instance of misuse of funds or malpractice committed
by trustees.
23. It also observes admission by respondent no.10
was without substance as he had not taken any action
despite being trustee since 2003. And referring to objections
of respondents no.2 to 9 and 11 that accounts were being
maintained properly and audited from time to time, it draws
adverse inference against petitioners for failing to come up
with specific allegations against each of trustees. After
specifying mandatory conditions for invoking Section 92 of
CPC, it observes that to satisfy Court bonafide, petitioners
were required to place prima facie material to probabilise
their allegations about breach of trust. It concludes,
averments/allegations made only against President, Vice
President and Secretary of Trust, indicated petition was for
agitating personal grievances than for rights of public.
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24. Manner of consideration of application under
Section 92 of CPC has been dealt with in several oft referred
decisions. In Swami Paramatamanand Saraswati's case
(supra) Hon'ble Supreme Court was considering legality of
order of High Court affirming grant of leave to file suit by
persons who claimed to be interested in affairs of Math. It
was held prayer sought for declaration that
Krishnabodhashram was validly installed as Shankaracharya
of Math, was for vindication of private interest. It held
alternative prayer for appointing some other person as
Shankaracharya was with intention to bring suit within scope
of Section 92 of CPC, as it was neither backed by formal
pleading about his incompetence nor by arraying him as
party. It held Court should not only refer to reliefs sought
but read entire plaint to ascertain real intention behind filing
of suit.
25. In Ashok Kumar Gupta's case (supra), Hon'ble
Supreme Court referred to various decisions interpreting
scope and purpose of Section 92 of CPC. It held, for seeking
leave three main conditions had to be satisfied namely (i)
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Trust in question is created for public purposes of a
charitable or religious nature;(ii) there is breach of trust or a
direction of court is necessary in administration of such
Trust; and (iii) relief claimed is one or other of reliefs
enumerated in Section 92 of CPC. It held, even if any one of
conditions were not satisfied, suit would fall outside scope of
Section 92 of CPC.
26. In Sengunthar Charitable Trust's case (supra),
High Court of Madras, held order granting leave under
Section 92 of CPC was administrative in nature and not
either judicial or quasi-judicial and issuance of notice to
Defendants was not mandatory. In Mulla Gulam Ali's case
(supra) Hon'ble Supreme Court held, if trust is not
administered properly and object of trust not carried out,
public resort would lie under Section 92 of CPC.
27. In Vidyodaya Trust's case (supra), Hon'ble
Supreme Court took note of changes brought about by
insertion of sub-section (3) in Section 92 of CPC by
amendment of year 1976. It held, intention of legislature
was to shield Public Trusts from frivolous litigation and for
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said purpose, Court considering application for leave was
required to find out main or dominant purpose of filing suit,
by not only referring to reliefs sought but entire plaint.
28. Even in Harendra Nath Bhattacharya's case
(supra), it was held, primarily plaint is to be looked at for
deciding question of applicability of Section 92. A suit under
Section 92 is of a special nature, which presupposes
existence of a public religious or charitable trust, wherein
suit can proceed only on allegation of breach of trust or
directions from Court were necessary for administration of
trust, and if prayer for one of reliefs specifically mentioned
therein were sought.
29. Sum and substance of ratio in above decisions is
that Court considering application for leave to file suit under
Section 92 of CPC has to ascertain whether plaintiffs have
pleaded that (i) Trust in question was 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
administration of such a Trust; and (iii) relief claimed was
one or other of reliefs enumerated in said section. It would
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also require to determine real or dominant intention in filing
suit, whether for protection of rights of public in Trust or
vindication of personal rights, by referring not only to reliefs
but entire plaint averments. Same was mandatory and could
be carried out even before issuance of notice to defendants.
Above exercise was akin to considering application under
Order VII Rule 11 of CPC.
30. This Court has in C.R. Shivananda v. H.C.
Gurusiddappa, reported in ILR 2011 Kar 4624 elucidated
legal position as follows:
"44. From the aforesaid statutory provision and
Judgments, the law is fairly well settled.
A suit under Section 92 CPC is a suit of a special
nature for the protection of Public rights in the Public
Trusts and charities. It presupposes the existence of a
public trust of a religious or charitable character. A suit
for a declaration that certain property appertains to a
religious trust may lie under the general law but is
outside the scope of Section 92, CPC: A suit framed
under Section 92 of CPC, the only reliefs which the
plaintiff can Claim and the court can grant are those
enumerated specifically in the different clauses of the
section. A relief praying for a declaration that the
properties in suit are trust properties does not come
under any of these Clauses. When the defendant
denies the existence of a trust, a declaration that the
trust does exist might be made as ancillary to the
main relief claimed under the section, if the plaintiff is
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held entitled to it. The suit is fundamentally on behalf
of the entire body of persons who are interested in the
trust. It is for the vindication of public rights. A suit
under Section 92 of CPC is thus a representative
suit and as such binds not only the parties
named in the suit-title but all those who are
interested in the trust. In deciding whether a suit
falls within Section 92 of CPC 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. It is only the allegations in
the plaint that should be looked into in the first
instance to see whether the suit falls within the ambit
of Section 92. If on analysis of the averments
contained in the plaint it transpires that the primary
object behind the suit was the vindication of individual
or personal rights of some persons, an action under
the provision does not lie. But, if after evidence is
taken, it is found that the 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 a suit purporting to be brought
under Section 92 must be dismissed. Public trusts
for charitable and religious purpose are run for the
benefit of the public. No individual should take benefit
from them. It is not every suit claiming reliefs
specified in Section 92 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. As a decisive factor the Court has to go
beyond the relief and have regard to the capacity
in which the plaintiff has sued and the purpose
for which the suit was brought. The Courts have
to be careful to eliminate the possibility of a suit
being laid against public trusts under Section 92
by persons whose activities were not for
protection of the interests of the public trusts.
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First and the foremost requirement for an application
under Section 92 is, the plaintiffs should bring the suit
to vindicate the right of the public. 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
CPC. 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 CPC, 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 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."
(emphasis supplied)
31. When entire plaint averments are examined, it is
seen plaintiffs have succinctly narrated manner of creation of
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Public Trust. In para-14, they have stated that in year 2011,
defendants no.2 to 12 came together and began claiming
themselves as trustees, without being appointed by any one.
They registered Supplementary Trust Deeds, nominating
themselves as trustees for life and appointed themselves as
President, Vice-President, Secretary, Joint-Secretary and
Treasurers. In paras-15 to 25, it is stated that present office
bearers collect various amounts without issuing receipts and
rendering accounts. It is also stated that officer bearers had
constructed Kalyan Mantap on temple property and
permitted many vendors to trade on temple property by
paying daily and monthly rents which total to several Crores
of rupees. They have also stated that no accounts are
rendered and when same were demanded, such persons
were shouted at. Sum of them who were nominated as co-
members were immediately removed. In para-26, plaintiffs
have specifically stated that to their knowledge, majority of
defendants no.2 to 11 are without any avocations, job or
business, but were leading lavish life clearly signifying that
they were misusing funds of temple for their own benefits by
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playing fraud on public as well as temple and its properties.
In preceding paragraphs they had also stated that purpose of
trust was for utilization of temple fund and properties for
benefit of temple and fair that was conducted annually in
name of temple.
32. Said assertions would prima-facie appear
sufficient to conclude that Trust was Religious and Charitable
nature and about allegation of breach of trust. As noted
above, reliefs sought for are due to breach of trust directions
of Court were necessary for administration of Trust. Prayer
for removal of trustees would fall within sub-clause (a) of
Section 92 (1). Likewise, prayer for appointment of new
trustees would fall under sub-clause (b); prayer for settling
of scheme under sub-clause (g) and appointment of
administrator under sub-clause (h) of Section 92 (1) of CPC.
Therefore, reliefs sought for would be amongst those
stipulated in Section 92 of CPC. Therefore, all three
requirements held mandatory by Courts appear existing.
33. Such being case, observation by trial Court that
plaintiffs failed to produce prima facie material to probabilize
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contentions, reference to assertion of defendants in
objections about accounts of Trust being audited would be
contrary to law. Especially when examination of plaint for
above purposes is at nascent stage of suit. And Court would
be required to keep in mind that plaint need not be
encyclopedia of all facts [Indra Raja (Dr.) v. John
Yesurethinam, 2011 SCC OnLine Mad 2048] and stage
for substantiating allegations in plaint would be in trial.
Therefore, conclusion of trial Court on this count would be
untenable.
34. Further, when there is no requirement either
prescribed or laid down in any decision that plaintiffs would
be required to make allegations against each of trustees,
assigning said reason by learned trial Judge, would also be
contrary to law. Yet another factor that requires to be taken
note of is that purpose of Section 92 is to 'regulate' process
of seeking vindication of rights of public in Public Trusts of
Religious or Charitable nature and 'not to prohibit' it.
Nowadays public trusts are holding/managing resources of
enormous value both in terms of monetary value or beliefs.
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While definitely requiring protection from unnecessary and
frivolous interference by way of litigation, regulation in
nature of prohibition would have an equally undesirable
result, which cannot have been intention of legislature while
enacting Section 92 of CPC.
35. Further, when there are several plaintiffs who
have joined in filing suit, refusal to grant leave by pointing
out disability which may apply to one or few of them would
also not be proper. Likewise, merely on ground that one or
some of plaintiffs had failed to take action against breach
earlier cannot be ground to reject application, especially
when suit under Section 92 would be in nature of
representative suit and refusal to grant leave would likely bar
fresh suit [M.K. Rappai v. John, reported in (1969) 2 SCC
590].
36. As this would be a drastic consequence, it would
be appropriate to hold that in case of doubt, benefit at stage
of grant of leave should go to applicants. Therefore, unless
trial Court finds any material to arrive at conclusion that suit
is vexatious normally leave should not be denied on hyper-
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technical or oversensitive. Similar view is taken in Vellore
Institute of Technology v. G.V. Sampath, reported in
2015 SCC OnLine Mad 3977:
"31-11. I am of the opinion that if prima facie this
Court finds that there is allegation with regard to
breach of trust and a direction of this Court is
necessary, that would suffice to grant leave to
sue at the initial stage. Only when there is a strong
material before this Court to come to a conclusion that
the suit is vexatious, then the Court can deny the
leave already obtained, otherwise the leave cannot be
rejected at the threshold stage. So far as the present
case is concerned, from a reading of averments in the
plaint and from the other materials, I find that there is
an existence of a public Trust. There is allegation of
breach of trust and a direction of this Court is
necessary to set right the administration of the Trust.
In the present case, two clauses are considered for
grant of leave to sue under Section 92 of CPC; 1) a
part of subject-matter of is within the jurisdiction of
this Court and as such this Court gets jurisdiction to
entertain the suit under Section 92 of CPC; 2) the
allegations made in the plaint show that a direction of
this Court is necessary to set right the administration
of the Trust. The contentions made by the learned
senior counsel for the 2nd defendant may be his
defence which could be considered at the time of trial.
Hence, I am of the opinion, a prima facie case has
been made out to grant leave under Section 92 of CPC.
Therefore, leave cannot be revoked.
(emphasis supplied)
37. Consistent ratio that after recording evidence, if it
is found that plaintiff failed to establish any of necessary
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factors, then suit must be dismissed, provides sufficient
protection to Trust. Such a view would also be in tune with
consistent view that appreciation of application for leave
under Section 92 of CPC is to be considered in manner
similar to an application under Order VII Rule 11 of CPC.
38. In view of above discussion, point for
consideration is answered in affirmative. Consequently,
following:
ORDER
i. Appeal is allowed. Impugned order dated
03.11.2023 passed by Principal City Civil and
Sessions Judge, Bengaluru, in
Misc.no.346/2022 is set-aside.
ii. Misc.no.346/2022 stands allowed, with no
order as to costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
EM.
CT-ASC
