MAHESH TULSHIAN Vs. RAJENDRA KUMAR BANKA

JUDGEMENT

(1.) THE appellants filed a suit against the respondent in relation to a Public Charitable Trust known as Rai Soorejmull Jhunjhunwala Bahadur's Charitable Fund/Trust. In relation to the management of the said Trust, suit was filed in 1970 that stood disposed of by decree dated December 3, 1979 wherein parties to the said suit filed a Terms of Settlement; Court accepted the terms and decreed accordingly. By virtue of the decree one Jagadish Prasad became the principal trustee being the eldest male member of the family as claimed by the appellants. Jagadish died on January 20, 2000. The appellant No. 1 claiming to be the eldest male descendant in the family was claiming the post of principal trustee that the respondents denied. Appellant filed the suit against the respondents inter-alia claiming for a declaration, he was the principal trustee and the respondents No. 1 and 2 ceased to be the trustee by virtue of their resignation. In the alternative, they should be removed from the post of trustee. The appellants alleged, the respondent No. 1 and 2 misappropriated the funds of the Trust whereas the respondent No. 4 could not have been the trustee of the Trust or the principal trustee thereof. Reading of the plaint would depict, the plaintiffs in the suit never claimed the same being instituted under Section 92 of the Code of Civil Procedure. At the instance of the plaintiffs, the learned interlocutory Judge passed orders giving interim protection in the aid of the suit. The respondents made an application for dismissal of the suit alleging, the plaint did not disclose any cause of action. The application was presumably under Order VII rule 11 of the Code of Civil Procedure. The respondents also prayed, the suit could not have been initiated under Section 92 and the leave, if any, granted, should be revoked and/or cancelled. The learned single Judge by judgment and order dated October 6, 2010 appearing at pages 423-432 of the paper book allowed the said application and dismissed the suit. His Lordship observed, the prayers made in the plaint were nothing but vindication of personal right that could not come within the scope of Section 92. However, while making such observation His Lordship observed as follows:

(2.) MR . Jishnu Saha learned counsel appearing for the appellants placed Section 92 of the Code of Civil Procedure and contended, once the learned Judge observed, the plaint also disclosed cause of action with regard to Section 92 His Lordship should not have dismissed the suit. He distinguished two Supreme Court decisions that the learned Single Judge relied upon the case reported in All India Reporter 1972 Volume-59 Supreme Court Page-246 (Harendra Nath Bhattacharya and others Vs Kaliram Das) and 2008 Volume 4 Supreme Court Cases Page-115 (Vidyodaya Trust Vs Mohan Prasad R and Others). Drawing our attention to various paragraphs of the said decisions, Mr. Saha would contend, the facts would completely differ, particularly when, the learned Judge came to a conclusion, plaint did disclose cause of action akin to Section 92. Mr. Saha also distinguished the Apex Court decision in the case of Sugra Bibi Vs. Hazi Kummu Mia reported in 1969 All India Reporter Volume-56 Supreme Court page-884 cited by the respondent before His Lordship. He would contend, the facts would differ however; the proposition of law would rather support the appellant. He particularly relied on paragraph 5, 7, 8 and 9 to support his contention. Mr. Saha lastly contended, learned Judge held the suit bad for mis- joinder of cause of action that did not have any legal support, rather the provisions of Order I Rule 1 and 2 would ex facie suggest otherwise. Mr. Saha relied on the following decisions:

(3.) MR . Das relied on the following decisions: