NEW APOSTOLIC CHURCH CHARITABLE TRUST Vs. SAMUEL MASIH

JUDGEMENT

(1.) This regular first appeal has been preferred by the appellants -plaintiffs against judgment and decree dated 27.02.2015 passed by Additional District Judge No. 1, Beawar(for short 'the trial court') whereby suit filed by the appellants for mandatory injunction and recovery of damages against respondent -defendant has been dismissed, being barred by law in view of the provisions contained under Order 7 Rule 11(d) CPC.

(2.) Facts giving rise to the present appeal are that appellants -plaintiffs filed a suit seeking mandatory injunction and recovery of damages against respondent -defendant inter alia stating therein that plaintiff is a private trust, which was constituted through Shri Diwanji S. Choudhary son of M. Choudhary resident of 8A, Nirmal Path, Ajmer Road, Jaipur by registered trust deed dated 22.01.2000 and he, thereafter, appointing himself as also Shri Florence Rathnam, Yeshram Rathnam and John Tito Rathnam, as its trustees. According to appellants -plaintiffs, Shri John Tito Rathnam was authorised to initiate legal proceedings on behalf of the trust. Defendant, Samuel Masih was appointed as District Evangelist. When he started interfering in the property of the trust and raised illegal constructions, a show cause notice dated 16.03.2010 was issued to him. Respondent -defendant, in pursuance of show cause notice, submitted his apology. Thereafter, respondent -defendant was again appointed as District Evangelist on 01.04.2011. On account of certain illegalities committed by respondent -defendant for using properties of the Church by defendant -respondent for his personal gain, appellants -plaintiffs had to file present suit, cause of action wherefore had arisen on 01.06.2013 when respondent -defendant was asked to hand over keys of the property. It was prayed that decree of mandatory injunction be passed and respondent -defendant be further directed to make payment of amount of Rs. 52,500/ - as mesne profit and further mesne profit was also prayer for to be awarded. The suit was accompanied an application for temporary injunction wherein it was prayed that respondent -defendant be restrained from transferring the property to any other person and not to part with possession of the property in favour of any other person for its use and occupation and not to change nature and existing condition of the property till final decision of the suit.

(3.) Respondent -defendant filed an application under Order 7 Rule 11 CPC contending therein that the plaintiff was a public trust, which was constituted for welfare of the members of Masih Community, which was constituted on 22.01.2000. According to respondent -defendant, as per the provisions of Sec. 17 of the Rajasthan Public Trust Act, 1959(for short 'the Act'), it was mandatory for the public trust to be registered with the Assistant Commissioner, Devesthan, but the Executive Trustee of the Trust did not do so. Plaintiff -Trust has not been registered till date and it was an unregistered trust. According to Sec. 29 of the Act, an unregistered trust is not entitled to file and maintain a suit and the present suit, being barred by law, is liable to be dismissed. Besides, it was also submitted that plaintiffs have wrongly asserted that cause of action for filing suit arose on 01.06.2013 when defendant was called upon to hand over keys of the property after he was removed from the post of District Evangelist. In fact, respondent -defendant was not removed from the post of District Evangelist on the said date and was still discharging duties as District Evangelist and, therefore, no question of handing over keys of the property arose. Thus, the suit does not give rise to any cause of action in favour of appellants -plaintiffs to file and maintain the suit and the suit was, therefore, liable to be rejected in view of the provisions of Order 7 Rule 11(a) and (d) CPC.