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THE CRESCENT EDUCATIONAL TRUST versus SRI. T.O. ABDULLAH

High Court of Kerala

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THE CRESCENT EDUCATIONAL TRUST v. SRI. T.O. ABDULLAH - FAO No. 169 of 2006 [2006] RD-KL 2485 (4 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 169 of 2006()

1. THE CRESCENT EDUCATIONAL TRUST,
... Petitioner

2. SRI.K.M.KUNJALI NAINA, AGED 65 YEARS,

3. SRI.C.A.MOHAMMED, AGED 55 YEARS,

4. SRI.T.A.ABDULLA, AGED 67 YEARS,

5. SRI.K.A.SAID MOHAMMED MOOPAN,

6. SRI.C.M.AMEER ALI, AGED 58 YEARS,

7. SRI.BAVA MOOPEN, AGED 73 YEARS,

8. SRI.N.A.KASIM, AGED 71 YEARS,

9. SRI.M.M.MOHAMMED KUNJU MOOPEN,

10. SRI.V.K.ABDUL KHADER,

11. SRI.C.M.ABDUL WHAHAB, AGED 58 YEARS,

12. SRI.P.P.KUNJU KOCHU, AGED 61 YEARS,

13. SRI.T.H.SALIM, AGED 48 YEARS,

14. SRI.M.B.MOIDEEN, AGED 51 YEARS,

15. SRI.M.B.ABDUL KADIR, AGED 53 YEARS,

16. SRI.P.MUHAMMED, AGED 66 YEARS,

17. SRI.A.K.MOHIYADDIN, AGED 65 YEARS,

18. C.M.NAZIMUDDIN, AGED 56 YEARS,

19. DR.C.M.HYDER ALI, AGED 58 YEARS,

20. SRI.K.S.ADIMA, AGED 70 YEARS,

21. SRI.K.K.SAYED MOHAMMED, AGED 71 YEARS,

22. SRI.K.S.PAREETH, AGED 64 YEARS,

23. SRI.C.A.MOIDEEN, AGED 53 YEARS,

24. SRI.M.M.PAREETH, AGED 53 YEARS,

25. DR.K.H.AHMED, AGED 57 YEARS,

26. SRI.K.M.SHOUKATH ALI, AGED 44 YEARS,

27. SRI.V.M.SALAHUDHEEN, AGED 52 YEARS,

28. SRI.P.M.ALIYAR, AGED 54 YEARS,

29. SRI.P.M.MOHAMEED ALI, AGED 65 YEARS,

30. SRI.C.M.MOHAMMED KUNJU, AGED 57 YEARS,

Vs

1. SRI.T.O.ABDULLAH, AGED 75 YEARS,
... Respondent

2. SRI.P.S.ABDUL NAZZER, AGED ABOUT 54

3. SRI.M.M.ABDUL REHMAN,

4. SRI.K.K.HASSAN, AGED ABOUT 35 YEARS,

5. SRI.M.A.ISMAIL, AGED 71 YEARS,

6. SRI.K.M.ALIYAR, AGED 67 YEARS,

7. SRI.C.M.AZEEZ, AGED 64 YEARS,

8. SRI.T.B.ABDUL KAREEM, AGED 58 YEARS,

9. SRI.K.M.ABDUL RAHMAN,

10. SRI.T.S.MOOSA, AGED 62 YEARS,

11. SRI.V.A.MOHAMMED ASHRAF,

For Petitioner :SRI.T.H.ABDUL AZEEZ

For Respondent :SRI.A.KUMAR

The Hon'ble MR. Justice M.RAMACHANDRAN The Hon'ble MR. Justice A.K.BASHEER

Dated :04/12/2006

O R D E R

(M.RAMACHANDRAN & A.K.BASHEER, JJ) F.A.O.No.169 of 2006

Dated this the 4th day of December, 2006



JUDGMENT

Ramachandran, J:

Part V of the Code of Civil Procedure, 1908 deals with special proceedings. The issue presented here arises in situations so contemplated. Generally, Section 89 pertains to arbitration and other conciliatory procedures. Section 90 provides that where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed. Section 91, which deals with suits highlighting public nuisances and other wrongful acts affecting the public, requires that the suit is to be instituted by the Advocate General. Of course, with the leave of the court, even though no special damage has been caused to them, two persons are empowered to join together and seek for redressal of the wrongful acts. Likewise, section 92 deals with suits, which are instituted in respect of public charities. Where an intervention of the court is found required in respect of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the [FAO No.169 of 2006] -2- direction of the Court is deemed necessary for the administration of any such trust, the Advocate General is authorised to institute a suit. Two or more persons having any interest in the trust are also empowered to institute suits, whether contentious or not. The nominated court is the principal Civil Court of original jurisdiction. A decree could be sought for and obtained for removing any trustee; appointing a new trustee; vesting any property in a trust; directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property; directing accounts and inquiries and the like. The said provision gives wide powers to the court for framing schemes and altering them. However, the condition precedent is that for such steps, the leave of the court is essential. The scope of the word 'leave', as appearing in Section 92 of the Code has come to be examined here.

2. The appellants herein however failed to obtain leave for moving the District Court, Ernakulam notwithstanding that they were interested persons, and the suit pertained to a Trust created for a charitable purpose. Leave had been applied for by the Crescent Educational Trust, Thottumughom, Aluva, represented by its Secretary along with 30 other office bearers of the Trust before the District Court. Appellants 18 & 19 have later [FAO No.169 of 2006] -3- on withdrawn themselves from the proceedings. According to the appellants, the 11 respondents, named in the suit, were acting against the canon of the trust deed and consequential reliefs therefore required to be granted. It had been alleged that by a resolution dated 15-05-2005, the plaintiffs/petitioners had been elected as office bearers of the Trust and by virtue of the same they were entitled to assume office, but the defendants were continuing in office without authority. Consequential orders, according to them, required to be issued. Respondents contended that a suit under section 92 of the CPC would not have been maintainable, and the only remedy, if at all, would have been a suit before the Subordinate Court at Paravur, which alone had jurisdiction to deal with the issue. Accepting the objections, by order dated 28-03-2006, in I.A.No.3809 of 2005 in the unnumbered O.S, the District Court refused leave. The suit was thereby to be returned for presentation before the proper court. This order is under challenge in the present appeal. We had heard Sri.T.H.Abdul Azeez appearing for the appellants and Sri.V.Giri on behalf of the respondents.

3. The appellants submit that the learned District Judge erred in adopting a restricted view of the matter in appreciating the basic issue which had been involved. It was a case where persons without authority had been continuing in office and [FAO No.169 of 2006] -4- lawfully elected office bearers were prevented access. The Secretary, representing the trust and thirty other members had therefore come up to vindicate their rights. Intervention of the principal civil court of the district was essential. Referring to the provisions in the Code, Mr.Azeez submits that to a great extent, the bona fides of the parties who approached the court should have been subjectively examined. If this was to be the guiding factor, according to the learned counsel, the District Judge had erred in declining grant. Counsel submits that the decision relied on by the District Judge, namely St. John's Jac obite Syrian Church v. Fr.John Moolamattom [2005 (1) KLT 307] could not have been adopted as the guideline, since essentially the claims put in by the plaintiffs stood on a totally different footing. Likewise, the decision in Amrithakumari v. Ramanathan [1998 (2) KLT 305] had no relevance or application, since what had been held there was that there was a duty on the part of the court to ensure that suit was to be entertained only after formal leave is granted.

4. On the other hand, with reference to the prayers incorporated in the suit, Mr.Giri submits that the suit is not to be considered as one envisaged under Section 92 of the Code of Civil Procedure. The suit is not filed for removing any trustee or appointing a new trustee as the plaint claim is that such steps are [FAO No.169 of 2006] -5- already concluded. The prayer, according to him, also could not be spelt out as to mean whether there was necessity for vesting any property on the trustee. According to him, therefore it would not have come under section 92(1) of the CPC and no reasons were given for getting the matter adjudicated as special proceedings.

5. However, we find it difficult to endorse the view taken by the District Judge nor for accepting the submissions made on behalf of the respondents. The District Judge had proceeded on the assumption that there should have been an allegation of breach of trust and as a sequence, a direction was sought for from the court for the administration of the trust. According to the learned Judge, what was alleged was that there was breach of trust and this is directly linked to a circumstance that the respondents were removed in the general body meeting. Conspicuously there was no direction sought for administration of the trust. In short, the learned Judge was of the opinion that the relief prayed for was not to vindicate the breach of trust alleged to have been committed by the respondents, but on the other hand, prayer was only for recognising the right of the newly elected persons. According to him, therefore, the essential averments or contentions so as to invoke the jurisdiction of the court under section 92 of the Code were absent, and therefore request for leave was not appropriate. Specifically, he was of the view that [FAO No.169 of 2006] -6- the plaintiffs were only advancing private and personal interests.

6. We feel that the restrictive interpretation as above was not warranted, when we examine the powers of the court and its duty while dealing with extraordinary situations. The Parliament found that special situation required special procedure to be followed. One of the reliefs prayed for was for a judgment and decree declaring the removal of the defendants, who illegally continue in office of the trust in violation of the trust deed. This is alleged as concerted action against the unanimous resolution passed by the Board of Trust in removing them from the post of office bearers, and substituting a new set of office bearers. According to Mr.Abdul Azeez, the details of the circumstances in which the suit was required to be filed of course would have been the subject matter of enquiry. But the essential element for invoking the jurisdiction had amply been presented. A group of persons was continuing in office, according to him, who had no authority when a resolution had been passed on 15-05-2005 terminating their tenure. Simultaneously, persons who had been duly elected were prevented access. Accounts and administration were not being handed over, nor the properties of the trust were given to the newly elected Board of Trustees. Counsel submits that this sufficiently indicated that situations as envisaged under Section 92 were present for the Court to assume that leave [FAO No.169 of 2006] -7- required to be granted so as to combat the unsatisfactory state of affairs prevailing.

7. As observed by the Supreme Court in Madappa v. Mahanthadevaru (AIR 1966 SC 878), the main purpose of the stipulation is to protect the institutions from frivolous litigations. It has also to be noticed that the court may even go beyond the reliefs claimed, and should have regard to the capacity of the persons who had come up with the application, as gatherable by the observations of the Supreme court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141). The above decision is also an authority for the proposition that while during later adjudication, it is found that a breach of trust is not there, the court has jurisdiction to terminate the proceedings in a given case. The special nature of the proceedings may be due to the wide powers that are invested in the court under subsection (3), but a right for access cannot be denied also when a circumstance is pleaded as coming under the opening provision of Section 92 (1) it is evident.

8. It appears that one need not be unduly obsessed about the catalogued reliefs, referred to as (a) to (h) under Section 92(1) of the Code. Decrees of the nature envisaged under (a) to (g) as well as further reliefs that may come under (h) could be granted, in exercise of discretion, or the situation may justify or warrant. [FAO No.169 of 2006] -8- But, the jurisdiction to grant leave for motion is principally the two circumstances, viz., (1) when an alleged breach of trust is there and (2) when direction of court is necessary for administration thereof. The procedure does not prescribe calling for written statement even, which obviously had prompted the Supreme Court to observe that the maintainability of the suit depends on the allegation in the plaint, and does not fall for a decision with reference to the averments in the written statement (See Charan Singh v. Darshan Singh (AIR 1975 SC 371). Perhaps, the examination can be as to whether the Institution answers to the test of an express or constructive trust, created for public purposes of a charitable or religious nature. The expression used is 'alleged breach' which admits of utmost leverage while exercising discretion, as it is the key word.

9. We are satisfied that the appellants/plaintiffs have invoked the jurisdiction of the court under section 92 of the Code of Civil Procedure, not for highlighting their personal claims, as suggested in the order under appeal. A circumstance where a newly elected panel of trustees are disabled from assuming office, as going by the plaint or averments and justification appropriately needs to be explained by the defendants. The circumstances narrated in the plaint, according to us, do show that there is an alleged breach of an express trust and the court will have to [FAO No.169 of 2006] -9- examine necessity to grant a decree as may come within its purview.

10. The order dated 28-03-2006 in I.A.No.3809 of 2005 accordingly will stand set aside. The District Court, Ernakulam is directed to pass a formal order, taking note of the observations made above. The appeal is allowed. The parties are to suffer their respective costs. (M.RAMACHANDRAN)

JUDGE

(A.K.BASHEER)

JUDGE

mks/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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