RAHUL JAIN Vs. PRADEEP KUMAR

JUDGEMENT

(1.) This application raises an interesting issue on first principles of adjudication on a application under Section 92 of the Code of Civil Procedure, 1908. The question raised relates to the maintainability of an application under Section 92 of the Code of Civil Procedure, 1908. One of two applicants who have sought leave to sue a trust under Section 92 of the Code of Civil Procedure, 1908 expired. Thus, the moot which requires to be answered is whether the two persons who have submitted the application have to be alive and in existence on the date when the petition is filed or whether the relevant date of their existence is the date on which the application is actually taken up for consideration by the court.

(2.) The facts which give rise to the present petition to the extent necessary for adjudication of the present petition are noticed hereafter. Shri Rahul Jain and Shri Surender Kumar filed an application being IA No. 9572/1999 under Section 92 of the Code of Civil Procedure, 1908 (which is hereafter referred to as the CPC). It was averred that late Bhola Nath had created a charitable trust in respect of property bearing municipal No. 1042 - 1046 Bazar Sita Ram, Delhi. It is contended that his sons late Shri Triloki Nath, late Amar Nath and Late Bishambhar Nath were the first three founder trustees. The plaintiff No. 2 Shri Surender Kumar claimed that his appointment as a trustee upon the death of his father late Amar Nath on 10th February, 1991 was communicated by the other two trustees that is Shri Triloki Nath and Shri Bishambhar Nath vide a communication dated 16th September, 1991. Shri Surender Kumar claims that he assumed the duties and responsibilities as a trustee vide a communication dated 6th October, 1991. It has been contended that after assuming his duties and responsibilities, Shri Surender Kumar found out that the properties of the trust were being mismanaged and were not being kept properly by the defendants and further that defendant No. 1 was neither a trustee nor had any authority to deal with the trust properties. Various other averments have been made challenging the authority of the defendant No. 1 to function as a trustee and purported acts of mismanagement on the part of the defendants have been set out in the proposed plaint which was filed with the IA No. 9572/1999.

(3.) This application under Section 92 of the Code of Civil Procedure, 1908 was filed alongwith the proposed plaint on 15th September, 1999 and remained pending for several dates. Unfortunately, plaintiff No. 2 Shri Surender Kumar expired on 16th September, 2002 before adjudication in IA No. 9572/1999. After the death of Shri Surender Kumar, the applicant No.2, an application was filed under Order 22 Rule 3 of the Code of Civil Procedure, 1908 for substitution on 11th December, 2002. By this application filed by the defendant No. 2 Shri Rahul Jain, leave was sought to substitute Shri Narender Kumar, brother of the deceased Surender Kumar as a plaintiff No. 2 . This application was taken up for hearing on 5th March, 2003. It was held by this court that since the suit was filed by two trustees against the other trustees who are alleged to be mismanaging the affairs of the trust, the provisions of Order 22 Rule 3 of the Code of Civil Procedure, 1908 are not applicable unless and until some other trustee wants to be impleaded as a trustee. The application was therefore dismissed.