NARAYANA PILLAI Vs. JYOTHI

JUDGEMENT

(1.) Appellants are petitioners 1 and 2 in O.P. (Trust) 116 of 1984 of the District Court, Trivandrum. The petition was filed for permission to institute a suit under S.92 of the C.P.C. for directing the removal of respondents 2 to 5 from the management of the plaint schedule Asramam, temple and properties, for framing a scheme for the management of the said items and for appointing a new trustee or board of trustees for its management. The petition was allowed by the Court. Respondents 2 to 4 filed C.R.P. 871 of 1986 before this Court. The order of the District Court was set aside and it was remitted to that Court as there was no finding whether the two petitioners have any interest in the trust. It is thereafter that the impugned order was passed by the District Judge. The District judge held that the second petitioner has failed to prove his interest in the Swayam Prakash Asramam, Kulathoor which is a public trust and hence the first petitioner alone cannot maintain the petition under S.92 C.P.C.

(2.) 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 S.92. Of course, position would be different when evidence is taken. In Swami Paramatmanand Saraswati v. Ramji Tripathi (1974 S.C.W.R. 429) the Supreme Court held that only the allegations in the plaint should be looked into in the first instance to see whether the suit falls within the ambit of S.92 and if after evidence is taken and if it is found that the breach of trust alleged has not boon 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 S.92 must be dismissed.

(3.) The question that arises for consideration is as to whether P.W.2 has established any interest in the Asramam so as to invoke the aid of S.92 of the C.P.C. It is argued by the counsel for the appellants that the evidence of P.W.1 would show that he is a worshipper in the temple, that he is a resident in the nearby area and that the evidence unfolds his interest in the trust. On the other hand, it is contended by the respondents that his evidence at best would only show that he worships in the temple and it cannot be said that he has any interest in the Asramam and as the temple is only an adjunct of the Asramam it is difficult to hold that he has any interest in the public trust.