IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 13 TH DAY OF APRIL, 2015 BEFORE THE HON BLE MRS JUSTICE S SUJATHA Writ Petition No.4242/2013 (GM-CPC) BETWEEN SRI D V SIDDALINGAPPA S/O LATE DIBBUR VEERAPPA, AGED ABOUT 80 YEARS, LIFETIME TREASURER AND TRUSTEE OF THE 1ST DEFENDANT, R/AT NO.135/A, 7TH MAIN, 40TH CROSS, JAYANAGAR VTH BLOCK, BANGALORE (BY SRI G JANARDHANA, ADV.)... PETITIONER AND 1. SRI YAJAMAN NAGAPPA NANJAMMA ENDOWNMENT TRUST, HAVING ITS OFFICE AT NO.19 (OLD NO. 82) NAGAPPA STREET, SESHADRIPURAM, BANGALORE REPRESENTED BY ITS MANAGING TRUSTEE SRI G R GURUMURTHY,

2 2 S/O LATE C REVANNA SIDDAPPA, AGED ABOUT 74 YEARS. 2. SRI YAJAMAN SRIKANTAPPA S/O LATE YAJAMAN KENCHAPPA, AGED ABOUT 81 YEARS, R/AT NO.108, 6TH MAIN, II CROSS, J P NAGAR III PHASE, BANGALORE SRI Y N RAJASHEKARAPPA S/O LATE Y NANJUNDAPPA, AGED ABOUT 74 YEARS, R/AT NO.2, G-132, "NILADRI MAHAL" II CROSS, NANDIDURGA ROAD, BANGALORE SRI B R MRITHYUNJAYA S/O LATE T N MALLAPPA, AGED ABOUT 84 YEARS, R/AT NO.1, RACECOURSE ROAD, BANGALORE SRI S SHIVAPRASAD S/O LATE SOLUR SIDDAPPA, AGED ABOUT 72 YEARS, R/AT NO. 50/01, BULL TEMPLE ROAD CROSS, BASAVANAGUDI, BANGALORE SRI Y S MANJUNATH S/O SRI YAJAMAM SRIKANTAPPA, AGED ABOUT 53 YEARS, R/AT NO.108, 6TH MAIN, II CROSS, J P NAGAR III PHASE,

3 3 BANGALORE SRI D S GIRISH S/O SRI D V SIDDALINGAPPA, AGED ABOUT 48 YEARS, 7TH MAIN, 5TH BLOCK, JAYANAGAR, BANGALORE SRI B NAGARAJ S/O LATE G P BASAVARAJAPPA, AGED ABOUT 63 YEARS, NO. 58, OLD MARKET ROAD, SHIVAJINAGAR, BANGALORE SMT G V RENUKA W/O SRI Y N RAJASHEKAR, AGED ABOUT 63 YEARS, R/AT NO.2, G-132, NILADRI MAHAL, 2ND CROSS, NANDIDURGA ROAD, BANGALORE SRI Y SUNIL S/O LATE SHIVANAND Y AGED ABOUT 43 YEARS, R/AT NO. 284, 1ST FLOOR, 17TH CROSS, SADASHIVANAGAR, BANGALORE RESPONDENTS (BY SRI C PRAKASH, ADV. FOR R1, 7 & 8 SRI K.S.HARISH, ADV. FOR R2 TO R6, R9 AND R10) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA

4 4 PRAYING TO QUASH THE ORDER DATED PASSED BY THE PRINCIPAL CITY AND CIVIL JUDGE IN DISMISSING THE I.A. FILED BY THE PETITIONER FOR TRANSPOSING THE RESPONDENTS NO.7 AND 8 VIDE ANNEXURE-G IN MISC. NO.556/12 AND CONSEQUENTLY ALLOW THE SAME. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON , COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER The order dated dismissing the I.A. filed by the petitioner Under Order 1 Rule 10 read with Section 151 of CPC in Misc.No.556/2012 on the file of the Prl. City Civil & Sessions Judge, Bangalore, is challenged in this writ petition. 2. The facts in brief are that: The petitioner along with Sri B.R.Mallesa Chetty, filed Misc.Petn.No.556/2012 under Section 92 CPC seeking permission of the Court in challenging his removal as a trustee from the first respondent-trust, on

5 5 the ground that the first respondent is a public Trust and the petitioner being a permanent trustee of the Trust appointed by the author of the Trust, respondents 2 to 6 had no authority to remove him. proceedings, B.R.Mallesa Chetty, died. In the said Hence, an application under Order 1 Rule 10 (2) CPC read with Section 151 CPC was made by the petitioner to transpose respondent Nos.7 and 8 as plaintiffs in the suit as they were sailing with him. The said application was contested by the respondents 2 to 6 and 9 and 10. After hearing, the learned City Civil Judge dismissed the said application which is assailed in this writ petition. 3. The Learned Counsel appearing for the petitioner placing reliance on the Karnataka Amendment to Order 1 Rule 10(6) CPC argued that the said provision is an enabling provision and the Court is empowered to transpose the parties in the suit and the learned City

6 6 Civil Judge failed to exercise this power in a judicious manner. 4. Learned Counsel for the petitioner placing reliance on the following judgments: 1. ILR 1992 KAR 1156 (Abdul Jaleel Vs. Aishabi) (2) KCCR 1186 (Sri C.R.Shivananda and Another Vs. Sri H.C.Gurusiddappa and Others) 3. AIR 1990 SC 444 (R.Venugopala Naidu and others Vs. Venkatarayulu Naidu Charities and Others) 4. ILR 2002 KAR 4442 (Smt.Kashibai Ambedkar and Others Vs. Vasanthrao Hanumanthrao Ambedkar) contended that respondent Nos. 7 and 8 proposed plaintiffs were already parties as defendants 7 and 8 to the suit and the Apex Court and this Court have held

7 7 that a liberal view has to be taken in adjudicating upon the application under Order 1 Rule 10 CPC and on technicalities, suit shall not be thrown out, the learned City Civil Judge, without considering the case in a proper perspective, rejected the application which warrants interference by this Court. 5. Per contra, learned Counsel appearing for the respondents submitted that the Misc. Petition was filed by the petitioner along with Sri Mallesa Chetty, (two persons) by virtue of one of the petitioners Sri Mallesa Chetty having died, proceedings abates and transposing of the parties does not arise. Secondly, he contended that there is no breach of trust or no public interest involved in seeking leave for the institution of the suit. Thirdly, it was contended that it is a private dispute of the petitioner for which Section 92 of the CPC cannot be invoked for the redressal of the personal grievances. The learned Counsel placed reliance on the judgment of the

8 8 Apex Court in AIR 2008 SC 1633 (Vidyodaya Trust Vs. Mohan Prasad R. & Ors.) in support of his contention. 6. After hearing the learned Counsel appearing for the parties and perusing the records, the only question that falls for consideration of this Court is : Whether the learned City Civil Judge is justified in dismissing the application filed by the petitioner seeking for transposing of respondent Nos.7 and 8 as petitioners 2 and 3 in the Misc. Petition filed by the petitioner seeking leave to institute the suit under Section 92 CPC? 7. The main relief claimed in the suit sought to be instituted under Section 92 read with Section 26 of CPC is to declare the resolution passed by defendant No.2 dated allegedly removing the first plaintiff from the Treasurer post and Trusteeship as illegal, unlawful and contrary to the Trust Deed dated , besides the other reliefs.

9 9 8. In the judgment of Smt.Kashibai Ambedkar And Others Vs. Vasanatharao Hanumanthrao Ambedkar reported in ILR 2002 KAR 4442, this Court was considering the application filed under Order 1 Rule 10(6) CPC in a suit for partition and separate possession, wherein all the parties to the proceedings stand on a same footing. 9. In the case of Abdul Jaleel Vs. Aishabi (supra), this Court was considering the case of specific performance of the contract. In that context it was held that the expression to settle all questions involved in Order 1 Rule 10(2) CPC is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject matter thereof. 10. In the case of *R.Venugopala Naidu (supra), the Apex Court while interpreting the words *Corrected Vide V.C. order dated

10 10 persons interested in the Trust has held that all persons who are interested in the Trust are parties to the original suit and as such, can exercise their rights. The very nature of a representative suit makes all those who have common interest in the suit as parties. It was a case where the trustees filed interim application in the original suit before the subordinate Court for permission to sell some properties of the Trust, which was granted. In the said proceedings, some appellants filed interim application in the original suit seeking for setting aside the orders granting permission to the Trust, to sell some of the properties of the Trust. In such circumstances, the question before the Apex Court was whether the appellants who were not parties to the suit title, had the locus standi to file such an application in a suit filed under Section 92 of CPC in a representative capacity? In such circumstances, it was held that in a suit whether under Section 92 CPC or under Order 1 Rule 8 of CPC, is

11 11 by the representatives of large number of persons who have a common interest, the very nature of the representative suit makes all those who have common interest in the suit as parties. 11. In the judgment of C.R.Shivananda and Another (supra), the maintainability of a suit filed under Section 92 of CPC, was under consideration and in that context, it was held that the word Trust has been used in Section 92 in a general and not in a restrictive sense. Thus, these judgments are not applicable to the facts and circumstances of the present case. The arguments advanced by the respondents Counsel has considerable force, that though the petition seeking permission to file a representative suit under Section 92 of CPC was filed projecting as if the suit was for vindicating public rights, it is mainly to challenge the private and personal dispute, the removal of the plaintiff/petitioner as trustees.

12 Section 92 of CPC mandates the petition to be filed by two interested persons in the Trust and accordingly, the Misc. Petition No.556/2012 was filed by the petitioner herein along with Sri B.M.Mallesa Chetty, who expired during the pendency of the proceedings. After the death of the said Sri B.M.Mallesa Chetty, the application under Order 1 Rule 10(2) of CPC was filed by the petitioner to transpose respondent Nos.7 and 8 as plaintiffs in the suit. It is clear that after the death of Sri Mallesa Chetty, the Misc. Petition filed by the surviving petitioner becomes non-est in the eye of law. In order to overcome the said rigour of non-maintainability of the suit/misc. Petition, the petitioner has designed a scheme to transpose the respondent Nos.7 and 8 in the pending proceedings as proposed plaintiffs which goes against the intent of the institution of the suit, which was filed alleging certain discrepancies in managing the trust affairs against the respondents, mainly removing the

13 13 petitioner from the Trust. It is settled law that in a suit filed in a representative capacity, the parties representing the suit proceedings alone would not be the interested parties in espousing some public cause in the interest of the trust created for public purposes of a charitable or religious nature and any such interested persons in the Trust are at liberty to implead in the suit proceedings. But the case at present is not so. The petitioner is seeking for transposing of the parties after the death of Sri B R Mallesa Chetty, by that time, the question of maintainability of Misc. Petition has cropped up. To cure this legal lacunae, the petitioner has filed the application under Order 1 Rule 10(2) CPC to transpose respondent Nos. 7 and 8 as petitioners in the suit that too when the matter was posted for hearing on maintainability of the petition. Hence, the judgments relied on by the petitioner are not applicable to the facts of the present case.

14 Considering all these aspects, the learned City Civil Judge has dismissed the application, which does not call for any interference by this Court. dismissed. 14. The writ petition being devoid of merits stands Sd/- JUDGE JT/-