SATENDRA KUMAR JAIN Vs. VEER DIGAMBAR JAIN DHARMSHALA

JUDGEMENT

(1.) Heard Sri P.K. Jain, Senior Advocate, appearing on behalf of the petitioner and Sri M.D. Singh Shekhar, Senior Advocate, appearing on behalf of the respondent.

(2.) The petitioner is a tenant of the shop in dispute owned by the respondent. The respondent filed a suit before the Judge, Small Causes Court for ejectment and arrear of rent, which has been registered as Suit No. 58 of 2005 on the allegation that the respondent is a public charitable trust constituted by virtue of will executed by Nanhey Mal in the year 1955. The typed copy of the will is at page 37. The trial court has decreed the suit and has held that the trust is a public charitable trust, therefore, the provision of Act No. 13 of 1972 does not apply. Against the said order, the petitioner filed revision which has been dismissed by the order dated 23.5.2013, which is being challenged in the present writ petition.

(3.) Learned counsel for the petitioner submitted that none of the court has examined the trust deed and its activities to arrive at the conclusion that it is a public charitable trust. The trial court has only arrived at the conclusion on the basis of one of the judgment in which the suit filed against the said trust has been declared barred in view of Sec. 92 of C.P.C. and the order of the District Judge wherein the permission to sell some of the property of the trust has been granted. He submitted that in both the cases the petitioner was not the party inasmuch as perusal of the order reveals that the trust deed and the activities of the trust have not been examined to arrive to the conclusion that the nature of the trust is a public charitable trust. He referred some of the clauses and averments of the will to demonstrate that in the will the provision has been made for the payment of certain amounts to his relative and further no document has been filed to demonstrate that in pursuance of the will any rule or bye-laws has been framed and in pursuance thereof trust is being run and charitable activities are being carried on. In the written statement, the petitioner has specifically disputed the nature of the trust being public charitable trust. The revisional authority without adjudicating the issue has upheld the view of the trial court. The order of the revisional authority is cryptic and non-speaking. In the circumstances, both the orders are not sustainable and are liable to be set aside.