Allowed

Sri. Kadekan Prakash Kamath v. Sri. Vitobha Rukma Bai Devara Bhandaram

Karnataka HC9 Feb 2024CRP/610/2023

Case brief

AI extract

What is this about?

Civil Revision Petition against trial court's rejection of plea to reject plaint. High Court allowed petition, set aside order, and rejected plaint holding this preclude instituting the suit as plaintiff lacks locus standi, citing pending appeal on his trusteeship status.

What did the court decide?

Impugned order of rejection of application under Order 7 Rule 11 CPC set aside and plaint rejected due to non-existence of cause of action and lack of locus standi.

Sri. Kadekan Prakash Kamath Vs Sri. Vitobha… — Succession and Inheritance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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CIVIL REVISION PETITION NO.610 OF 2023 (IO)

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BETWEEN:

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SRI. KADEKAN PRAKASH KAMATH, S/O LATE KADEKAN BHAVANIRAYA KAMATH, AGED ABOUT 70 YEARS, R/AT FLAT NO. 502, INLAND ELITE, NEAR TV RAMAN PAI CONVENTION CENTRE, KODIALBAIL, MANGALURU-575 003.

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SRI. PADAV SURENDRANATH SHENOY S/O VITTAL SHENOY, AGED ABOUT 64 YEARS, R/AT DOOR NO. 6-11/2, SHREENIKETANA , B 11^TH CROSS, VIVEKANANDANAGAR, KODICAL, MANGALURU-575 006.

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SRI. MAROLI SURENDRA KAMATH S/O MAROLI DEVARAYA KAMATH , AGED ABOUT 80 YEARS, R/AT MAROLI COMPOUND, OPP. FLOWER MARKET , CARSTREET, MANGALURU-575 001.

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…PETITIONERS

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(BY SRI. ARUN SHYAM M, SENIOR ADVOCATE FOR SRI. SUYOG HERELE E., ADVOCATE)

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AND:

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1 . SRI. VITOBHA RUKMA BAI DEVARA BHANDARAM, O/AT V.T. ROAD, MANGALURU-575 001 REP. BY RESPONDENT NO.2

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2 . SRI. M. VARADARAYA PRABHU S/O M. RAMAKRISHNA PRABHU, AGED ABOUT 75 YEARS, R/AT AYODHYA PATI DHAM, GANAPATHI TEMPLE ROAD, MANGALURU 575 001

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…RESPONDENTS

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(BY SRI. A. MADHUSUDHANA RAO, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 22.08.2023 PASSED ON IA NO.4 IN O.S. NO.617/2023 ON THE FILE OF IST ADDITIONAL CIVIL JUDGE, MANGALURU, DISMISSING THE IA NO.4 FILED UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 19.12.2023 AND COMING ON FOR PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioners have assailed the correctness of the order dated 22.08.2023 passed by the First Addl. Civil Judge & JMFC at Mangaluru in O.S. No.617/2023 by which an application filed by them under Order 7 Rule 11 of CPC was rejected.

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The parties shall henceforth be referred to as they were arrayed before the trial court. The petitioners were the defendants while the respondents were the plaintiffs.

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The suit in O.S. No.617/2023 was filed for the

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following reliefs.

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(a) For a declaration that the Defendant No.1 and 2 are not lawfully appointed trustees of the 1^st Plaintiff Bhandaram in accordance with the trust deed dated 08-10-1923 and for consequential prohibitory injunction restraining the Defendant No.1 and 2 from committing/executing any acts, deeds or things purporting to be the trustees of the 1^st Plaintiff Bhandaram.

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(b) For permanent prohibitory injunction restraining the 3^rd Defendant from appointing any trustees to

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the 1^st Plaintiff Bhandaram without the assent of the 2^nd Plaintiff and or in violation of the terms of the trust deed dated 08-10-1923,purporting to be a hereditary trustee of the 1^st Plaintiff Bhandaram.

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4. The plaintiffs claimed that a private family

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trust was constituted by Sri Lakshmana Prabhu alias Narayana Theertha Sanyasi on 08.10.1923. The trust deed provided that after the lifetime of the founder trustees the trusteeship would devolve hereditarily upon the respective male issues of the founder trustees. The plaintiffs claimed that since 1983 the plaintiff No.2 and late Maroli Laxman Kamath were the surviving hereditary trustees, of whom the plaintiff No.2 was the managing trustee since 1983 as evidenced by the proceedings of the meeting of the trustees of the plaintiff No.1. They further claimed that in the year 1992 the plaintiff No.2 and Maroli Laxman Kamath co-opted K. Mohan V. Nayak and U.Vishwanath Nayak as the ‘Hangami Trustees’ so as to the assist the plaintiff No.2 and Maroli Laxman Kamath. The plaintiffs claimed that the co-option was invalid as it

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was contrary to Clause 19 of trust deed dated 08.10.1923. They contended that a ‘Hangami Trustee’ could be coopted from Gowda Saraswath community only when the successors of a founder trustee or a trustee who has resigned are minors, till such time they attain age of majority.

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The plaintiffs claimed that at the time of cooption of K.Mohan V. Nayak and U. Vishwanath Nayak no such circumstance existed. They further claimed that the co-opted trustees were not appointed to fill up the post of any trustees that fell vacant due to death or resignation of previous trustees nor were they appointed during the minority of any successor or any hereditary trustee. Thus the plaintiffs claimed that the aforesaid persons could not claim to be validly appointed trustees of the plaintiff No.1. They further alleged that there were serious allegations of misfeasance or malfeasance against the aforesaid co-opted trustees and therefore the plaintiff was entitled to question their conduct. The plaintiffs alleged that in order to cover

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up their misdeeds, the aforesaid two persons ganged up with the deceased Maroli Laxman Kamath and conspired to remove the plaintiff No.2 as the managing trustee of the plaintiff No.1. They, by their letter dated 15.10.1994 informed the plaintiff No.2 that they held a meeting of the trustees on 14.10.1994 and had removed the plaintiff No.2 as the managing trustee of the plaintiff No.1.

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The plaintiff No.2 rejected the assertions by issuing a reply on 18.10.1994. The plaintiff No.2 filed O.S. No.497/1997 against the aforesaid three persons for a declaration that the resolution dated 14.10.1994 as illegal and for a declaration that he continued to be the managing trustee of the temple and for perpetual injunction restraining the defendants therein from interfering with the second plaintiff from functioning as the managing trustee of the temple. This suit was dismissed vide judgment and decree dated 19.02.2002 following which plaintiff No.2 filed R.A. No.110/2002 before the I Addl. Sr. Civil Judge, Managluru. The appeal in R.A. No.110/2002 was allowed by order dated 11.09.2008 and the Trial Court was

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directed to frame correct issues and dispose of the suit in accordance with law. The Trial Court again after recasting the issues dismissed the suit on the ground that the suit was hit by Section 92 of CPC. This judgment was challenged in R.A. No.120/2010 which was allowed and the case was remanded back to the trial court with a direction to consider all the issues that arose in the suit.

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The appellate court purportedly held that the dismissal of the suit as barred under Section 92 of CPC was incorrect. The trial court again in terms of its judgment and decree dated 20.04.2012 dismissed the suit. However, during the course of its judgment it observed that “ the resolution passed by the defendants No.1 to 3 removing the plaintiff No.2 as managing trustee of the plaintiff No.1 bhandaram, is illegal and that K. Mohan V. Nayak and U. Vishwanath Nayak were not the validly appointed trustees ”. The suit was dismissed on technical ground namely that the legal representatives of the deceased trustee cum defendant No.1 were not brought on record. Aggrieved by such dismissal, the plaintiffs filed

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R.A. No.53/2012. The first appellate Court dismissed the appeal by its judgment dated 04.08.2018 and upheld the findings of the Trial Court. The plaintiffs have preferred R.S.A. No.2379/2018 before this Court which is pending consideration.

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The plaintiffs claimed that the younger brother of late Maroli Laxman Kamath namely the defendant No.3 in the year 2010, started asserting that he is the hereditary trustee of the plaintiff No.1 on the ground that he had succeeded to the trusteeship after the demise of his brother in the year 1998. The plaintiffs claimed that the claim of defendant No.3 was illegal as the immediate younger brother of Maroli Laxman Kamath was Mr. Ramakrishna Kamath who only could be the hereditary trustee and not the defendant No.3. Mr.Ramakrishna Kamath died in the year 2003 and he is survived by his two sons, namely Ganesh Kamath and Harish Kamath. The plaintiffs claimed that the third defendant along with the ‘Hangami Trustees’ tried to induct Namdev Shenoy as a trustee of the first plaintiff and also appointed him as the

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managing trustee. Therefore another suit in O.S. No.905/2011 was filed against the defendant No.3 Sri Namdev Shenoy, Mohan Nayak and Vishwanath Nayak. During the pendency of the suit, both Namdev Shenoy and Vishwanath Nayak died.

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The defendant No.3 therefore tried to induct

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new trustees into the plaintiff No.1. The plaintiffs therefore filed an application for interim injunction from inducting any new trustees into the plaintiff No.1. That application was allowed by order dated 17.01.2018. Thereafter the suit was decreed on 03.03.2018. The court answered issue No.2 in the affirmative and while doing so upheld the contention of the plaintiff No.2 that he was the managing trustee of the plaintiff No.1. Feeling aggrieved by this judgment, the defendant No.3 and Mohan Nayak filed R.A. No.34/2018 and the first appellate Court granted stay of the judgment and decree passed in O.S. No.905/2011. The plaintiff No.2 contends that as on the date of death of Maroli Laxman Kamath it was only he who was the hereditary trustee and hence without his consent

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the defendant No.3 could not have declared himself to be the hereditary trustee and could not have appointed any ‘Hangami Trustees’. Plaintiffs alleged that defendant No.3 and others petitioned the Branch Manager, Canara Bank to break open the locker of the plaintiff No.1 maintained with the bank which was opened by the plaintiff No.2, Maroli Laxman Kamath and Sringeri Pundalik Pai. Plaintiffs allege that valuable golden and silver articles of the plaintiff No.1 were kept in the locker. The defendant No.3, Vishwanath Nayak and Mohan Nayak took away the jewels from the locker.

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The plaintiffs therefore filed O.S. No.17/2013 for perpetual injunction restraining the bank from permitting any person to operate the locker. An application for interim injunction was granted in terms of the order dated 03.08.2018. The plaintiffs claimed that the third defendant along with Vishwanath Nayak and Mohan Nayak tried to appoint Hanumanth Kamath as the trustee of the plaintiff No. who started interfering with the affairs of the plaintiff No.1. Therefore another suit in O.S.

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No.1228/2014 was filed against him for perpetual injunction to restrain him from interfering with the affairs of the plaintiff No.1. An interim application for temporary injunction restraining Mr. Hanumanth Kamath from interfering with the day to day management was granted in terms of the order dated 21.08.2015. This order was challenged by Mr.Hanumanth Kamath in M.A. No.46/2015 which was dismissed on 23.11.2017.

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The plaintiffs claimed that the defendant No.3

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was aware of the order of injunction passed against Mr.Hanumanth Kamath, did not challenge it which meant to tacitly accepted that Mr.Hanumanth Kamath was not appointed as per the terms of the trust. The plaintiffs claimed that despite the order of injunction Mr. Hanumanth Kamath continued to interfere, which compelled the plaintiffs to file Misc. No.25/2018 for wilful disobedience of the order of injunction. During the course of trial of Misc. No.25/2018, the plaintiffs came to know that the defendants No.1 and 2 were also claiming to be the trustees of the plaintiff No.1. The plaintiffs alleged

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that the defendant No.3 along with Mr. Hanumanth Kamath had appointed the defendants No.1 and 2 as the permanent trustees of the plaintiff No.1. The plaintiffs claimed that this appointment of the defendants No.1 and 2 is illegal as they were not the successors in interest nor the male lineal descendents of the founder trustees.

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The plaintiffs alleged that the defendants tried

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to operate the bank account of the plaintiff No.1 illegally and had also filed income tax returns of the plaintiff No.1 through another Chartered Accountant. The plaintiffs therefore caused a notice dated 31.01.2023 to the Chartered Accountant as to how he could file the returns though the earlier returns were filed by another Chartered Accountant. The plaintiffs alleged that since the aforesaid returns were signed by the defendants, they are suspicious. Therefore the plaintiffs contend that the acts of the defendants violate the terms of the trust deed and therefore the plaintiffs filed the suit for the reliefs mentioned above.

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The defendants contested the suit on various

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grounds. They also filed an application under Order 7 Rule 11 of CPC on the ground that

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i. The suit was barred under Section 92 of CPC.

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ii. That there was no cause of action for the suit and the one mentioned in the suit was false, imaginary and invented for the purpose of the suit.

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iii. That the plaintiff No.3 was in the habit of filing such frivolous suit, complaints before various authorities.

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iv. That the plaintiff No.2 had approached the Court with unclean hands and by suppressing material facts.

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v. That plaintiff No.2 had filed O.S.No.1442/2015 before the IV Addl. Civil Judge, Mangaluru for a perpetual injunction restraining the defendant No.2 from conducting the annual “Ahoratri Bhajana Saptaha” in the temple. That the defendant No.2 had filed an application for rejection of plaint as it was barred Under Section 92 of CPC. That the Court allowed the application rejecting the plaint vide order dated 11.12.2015 and an appeal preferred in R.A.No.11/2016 was dismissed on 23.07.2020.

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This application was opposed by the plaintiffs on the ground that the suit was not filed for any relief under Section 92 of CPC and therefore the suit was maintainable. On the contrary, they contend that this was a private dispute of an individual nature and not in a representative capacity. It was also contended that the first plaintiff was a private family trust and therefore the suit cannot be construed as one filed under Section 92 of CPC. It is also contended that the suit was filed to restrain illegitimate persons becoming trustees of plaintiff No.1.

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The trial Court after considering contentions urged by both parties rejected the application in terms of the impugned order and held that;

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i) That the plaintiff No.2 was asserting his right to the office of trustee and denied the rights of the defendants No.1 and 2. Therefore, they were seeking a declaration of their individual rights and did not complain breach of the trust requiring the indulgence of the Court under Section 92 of the CPC.

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ii) As per the averments of the plaint, there were proceedings pending against plaintiff No.2 and the defendants and others in various cases. There is no decision of the Court that the plaintiff No.2 had no authority over the plaintiff No.1, which had become final.

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iii) That the plaint did disclose a cause of action which was not illusory.

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iv) That the plaint contained several facts which have to be determined after a full fledged trial and therefore, it cannot be rejected at the threshold.

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Being aggrieved by the said order the defendant Nos.1, 2 and 3 had filed this revision petition.

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The learned Senior Counsel for the petitioners contended that the plaintiff No.2 is in the habit of filing proceedings one after the other and the instant suit is one such proceedings and therefore the same being mischievous is liable to be nipped in the bud. He contended that the plaintiff No.2 and his brother have filed suits and other proceedings one after the other thereby abusing the process of law and courts. A chart of the cases so filed is extracted below:

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Sl. No.	Case name & Particulars	Relief Sought	Status of the Case
1.	O.S. No. 536/1994	Filed by Plff 2 (Vardaraya Prabhu) through his brother Venkatraya Prabhu for declaration and challenged the appointment of Mohan Nayak & Vishwanath Nayak as Hangami Trustees of Temple Trust.	Dismissed after trial on 19-7-1999. The Appeal in RA No.671/2004 is dismissed and cross appeal of D2 to 4 was allowed as per judgment and decree dated 17-3-2007. R.S.A. No.1753/2007 before High Court of Karnataka is also rejected
2.	O.S.No. 497/1997	Filed by the PLff 2 (Varadaraya Prabhu) for declaration inter alia the meeting dated 14-10-1994 and resolution passed removing R2 (Varadaraya Prabhu) is illegal and further declaration that he continues to be managing Trustee of the Temple.	Dismissed by the trial court on 20-4-2012. The appeal bearingR.A No.53/2012also came to be dismissed on 4-8- 2018. RSA No.2379/2018 preferred by R2 is pending before the Hon'ble High Court.
3.	O.S.No. 256/2004	Filed by Plff. 2 (Varadaraya Prabhu) Injunction against Defendant (Hanumanth Kamath) from committing trespass and mandatory injunction to remove pipeline laid to the Temple and payment of damages.	The suit is dismissed as per judgment dated 27-1-2007. No appeal is preferred by R2.
4.	O.S.No.	Filed by the Plff.2	The suit was partly

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	961/2010	(Varadaraya Prabhu) for Permanent Injunction restraining Hanumanth Kamath from conducting yearly "Aahoratri Bhajana Saptaha" festival in the Temple.	decreed as per judgment dated 17-7-2017. Appellant (Hanumanth Kamath) filed first Appeal RA No.137/2017before II Addl. Senior Civil Judges Court, Mangaluru is pending enquiry.
5.	O.S.No. 905/2011	Filed by Plff.2 (Varadaraya Prabhu) for permanent injunction restraining the defendants from interfering with the day to day management of the Temple and from erecting any structure in the precincts of the temple.	The Suit has been decreed with costs as per judgment dated 3-3-2018. Against which First appeal preferred by Surendra Kamath in RA the No.34/2018 and the same is pending. InRA. No.34/2018the Trial Court decree has been stayed vide Order dated 30-7-2019 in I.A. No II and R2 (Varadaraya Prabhu) preferred WP No.20287/2018 before High Court of Karnataka and the same ispending enquiry. InRA No.34/2018as per I.A. No.III filed by R2 (Varadaraya Prabhu) U/O XXXIX Rule 1 & 2 CPC restraining Appellant (Surendra Kamath) from conducting Bhajana Saptaha and the same was dismissed by First Appellate Court on 15-11-2018 against the same R2 (Varadaraya Prabhu) preferred an appeal inMA No.65/2018 before IV Add. District &

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			Sessions Judge, D.K. Mangaluru and the same came to be dismissed on 27- 9-2018. Execution Petition filed before trial court in Ex. Case No.289/2018 filed by and R2 (Varadaraya Prabhu) before the I Addl. Civil Judge, Mangaluru. D.K. alleging willful disobedience of decree U/O 21 Rule 32(1) of CPC and the same is pending enquiry.
6.	PCR NO. 59/2013 (C.C.No. 113/2017)	Private Complaint by plff.2 against Hanumantha Kamath, Naamdev Shenoy, Maroli Surendra Kamath, Mohan V Nayak and Vishwanath Nayak for offences punishable under sections 143, 145, 427, 379, 380, 381 and 149 of IPC.	B report was filed as the matter is of civil nature. Upon filing the objections to B Report, learned Magistrate took cognizance of the alleged offences against the accused persons vide order dated 25-03-2017. The Criminal Petition No.6247/2017 seeking quashing of the proceedings came to be allowed and the matter was remanded back to learned Magistrate vide order dated 4-7-2019. The matter ispending enquiry.
7.	PCR NO. 163/2013	On the basis of the Complaint given by Plff.2 (Varadaraya Prabhu) before the II JMFC Court, Mangaluru, th D.K. against the accused therein and another (Since deceased) for the alleged Offences under sections 406, 419, 420, 506 and	B report was filed stating the matter is of civil nature. Upon filing the Objections to B Report, learned Magistrate directed Police Inspector, and Mangaluru North P.S. to take up the further Investigation vide order dated the 31-12-2015. The Criminal Petition No.4858/2017 seeking

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		149 IPC.	quashing of the
			proceedings came to be dismissed vide order dated 4-7-2019 as corrected by order dated 17-1-2020. The matter is pending
			enquiry in Trial Court.
8.	O.S.NO. 17/2013	Filed by the Plff.2 (Varadaraya Prabhu) before the IV Addl Civil Judge, Mangaluru D.K against Canara Bank for permanent prohibitory injunction restraining the Bank or its officers from allowing any person/entity other than Plff.2 (Varadaraya Prabhu) herein to operate the locker allotted to Temple.	The matter is pending enquiry in Trial Court.
9.	C.C.NO. 146/2013	Consumer Complaint filed by Plff.2 The (Varadaraya Prabhu) before District Consumer Disputes Redressal Commission, D.K against the Canara Bank alleging deficiency in service for having break open the safe locker and operated the Bank account of the Trust with the Third Party without the permission of the Plff 2 (Varadaraya Prabhu)	The Complaint came to be dismissed holding that R2 (Varadaraya Prabhu) strict is not a Consumer. No Appeal preferred and final
10.	PCR NO.	Complaint by Plff.2	On the direction passed by

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	27/2014	(Varadaraya Prabhu) before II Addl. Senior Civil & CJm Judge & CJM Court, Mangaluru, D.K. against officers of the Canara also of the Bank for the alleged Offences under sections 406, 417, 378, 380, 381, 419, 420, 506 and 149 IPC.	the learned Magistrate, the Police registered the FIR in Crime No.129/2014. Criminal Petition No.4966/2014 filed seeking quashing of the order referring the matter for investigation and also of the proceedings. Vide order dated 25-6-2019, the Petition was allowed and remitted the matter back for afresh and is pending enquiry.
11.	O.S.No. 1228/2014	Filed by the Plff.2 (Varadaraya Prabhu) for declaration that Defendant (Hanumath Kamath) is not lawfully appointed trustee of Temple and for consequential permanent injunction restraining him from claiming Or functioning Or interfering with the management of Temple	Temporary Injunction granted on 21-8-2015 against which Defendant preferred MA that 46/2015 before III Addl Senior Civil Judge, Mangaluru. DK which was dismissed on 23-11-2017 andWP No.11842/2018 before High Court Of Karnataka and the same is pending Enquiry. As per order in IA IV filed by Defendant U/O VII Rule 11 CPC was rejected on 4- 1-2019 against the same CRP No.189/2019 preferred before High Court of Karnataka and the same is pending enquiry. The main suit is also pending enquiry. R2 (Varadaraya Prabhu) also filed Misc case 25/2018 (U/o XXXIX RULE 2A CPC) for contempt alleging willful disobedience of order dated 21-8-2015 and the same ispending enquiry.

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			R2 (Varadaraya Prabhu) also filed Misc case 16/2023 (U/o XXXIX RULE 2A CPC) for contempt alleging willful disobedience of order dated 21-8-2015 against M.Surendra Kamath and the same ispending enquiry.
12.	O.S.No. 1442/2015	Filed by the Plff.2 (Varadaraya Prabhu) for Permanent Injunction restraining the Petitioner (surendra Kamath) from conducting yearly “Aahoratri Bhajana Saptaha” Festival in the Temple.	The Plaint was rejected as barred under Section 92 CPC as per order dated 11- 12-2015. The Appeal preferred by Plff.2 (Varadaraya Prabhu) in RA No.11/2016 dismissed by First Appellate Court on 23-07- 2020. RSA No.1418/2018 preferred by R2 is pending before the Hon'ble High Court.
13.	O.S.No. 617/2023	Permanent Prohibitory Injunction against Defendants K. Prakash Kamath, M. Surendranath Shenoy and Maroli Surendra Kamath not to act as trustees of the Temple.	As per order in IA IV filed by Defendant U/O VII Rule 11 CPC was rejected on 22 8-2023 against which the above CRP is filed. Before the learned Trial Court the case is posted for Orders on IA No.II & III (U/o XXXIX Rule 1&2 CPC) against the Defendants on 13-10-2023.

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He therefore contends that the present suit is

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also like one of the many other suits filed by the plaintiffs

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and therefore deserves to be nipped in the bud. He contends that the suit filed by the brother the of plaintiff No.2 in O.S.No.536/1994 was dismissed and R.A.No.671/2004 was also dismissed and

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RSA.No.1753/2007 was dismissed by this Court and it was observed as follows:

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“It is seen that the Trust in question was for the benefit of the Gowda Saraswath Bramin Community, which would imply that it was for the benefit of a fluctuating body of persons and no fixed group of persons could be identified as beneficiaries, in such an event, it cannot be said that the Trust was the private Trust. This is a fact apparent without any elaborate evidence in this regard. The Defendants having raised a plea that there was bar under Section 92 of CPC and trial court having framed an issue as to the maintainability and having answered the issue in the negative on the footing that the suit was not in compliance with Section 92 and therefore not maintainable, cannot be said to be irregular or illegal. There is no question of law that arise for consideration.”

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The learned Senior Counsel therefore

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contended that this finding not only binds the brother of the plaintiff No.2 but also the plaintiff No.2. He further contended that the plaintiff was removed from the

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trusteeship of the trust in terms of a resolution dated 14.10.1994 which was challenged by him in O.S. No.497/1997 which was dismissed on 20.04.2012 and R.A. No.53/2012 was also dismissed. He therefore contends that as on date the plaintiff No.2 has no locus standi to file a suit, even if he is trying to exercise his individual rights. He referred to the finding recorded in R.A. No.53/2012 where it was held “ when the plaintiff’s appointment admittedly is not in accordance with the terms of trust, he cannot challenge the appointment of the hangami trustees in the plaintiff/trust” . It was further held “no doubt the plaintiff No.2 is able to prove that the appointment of defendants No.2 and 3 is not in accordance with law and the defendants No.2 and 3 along with deceased defendant had no authority to pass the resolution dated 14.10.1994 but does not mean that the plaintiff No.2 is entitled to the relief claimed in the suit”. He therefore contended that unless this finding was set aside in RSA.No.2379/2018, the plaintiff No.2 has no locus standi to file the present appeal for any declaration.

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The learned Senior Counsel further claimed

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that the plaintiff had No.2 filed O.S.No.1442/2015 restraining the defendant No.2 from conducting the “Ahoratri Bhajana Saptaha” which was rejected in terms of an order dated 11.12.2015. In an appeal preferred in R.A.No.11/2016 the appellate Court held “ wherefore further the fact remaining that second plaintiff was removed as the managing trustee of first plaintiff in the year 1994 itself. Wherefore the plaint averments per se unfolded the fact that the plaintiff at present has failed in his legal battle to prove himself as the managing trustee of the plaintiff No.1. Therefore, the plaint averments prima facie shows that ever since removal in 1994, the second plaintiff has no locus standi or right to claim, to represent the temple. The second plaintiff cannot file a suit using the name of first plaintiff because he has no representative character to file suit in the name of the endowment itself ”. The learned Senior Counsel contended that the plaintiff No.2 had filed R.S.A. No.1418/2018 which is pending consideration. The learned Senior Counsel thus contended

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that even if it is assumed that the plaint is not for any reliefs falling under Section 92 of CPC, the suit is liable to be rejected on the ground that the plaintiff No.2 has no locus standi and therefore, no cause of action has accrued to him to file the present suit.

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21. Per contra , the learned counsel for the plaintiffs submitted that the suit is not filed for any reliefs under Section 92 of CPC and therefore, it is not barred under Section 92 of CPC. He submitted that the suit essentially was for vindication of the claim of the plaintiffs that the defendants No.1 and 2 are not the lawfully appointed trustees of the plaintiff No.1 and for prohibitary injunction restraining them from doing any acts as the trustees of the trust and for perpetual injunction restraining the defendant No.3 from appointing any trustees to the plaintiff No.1 without the consent of the plaintiff No.2. He therefore submits that even if the plaintiff No.1 is treated as a public trust, there is no allegation in the plaint alleging breach of the trust

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warranting the direction of the Court for the administration of the plaintiff No.1. In support of his contention, the learned counsel relied upon the following judgments.

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1) Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Others - (2021) 9 SCC 99;

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2) Mahant Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai and Others – (1952) 1 SCC 323;

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3) Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another – AIR 1974 SC 2141;

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4) Muhammad Azhar Ali Vs. Abdul Razzaq Bidri & Ors. – CRP No.200007/2018;

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5) R.M. Sundaram @ Meenakshisundaram vs. Sri Kayarohanasamy and Neelayadhakshi Amman Temple – 2022 SAR (Civ) 1022;

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6) Isabella Johnson (Smt.) V. M.S. Susai (dead) by LRs. – (1991) 1 SCC 494;

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7) P.V. Gururaj Reddy & another vs. P. Neeradha Reddy and Others – (2015) 8 SCC 331;

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8) Sundaralingam Chettiar & Ors. Vs. S. Nagalingam Chettiar and Ors. – 1957 (70) LW 940;

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9) Christopher Karkada and Others vs. Church of SouthIndia & Ors – ILR 2012 KAR 725;

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He therefore submitted that the suit is maintainable.

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22. I have considered the submissions made by

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the learned senior counsel for the defendants as well as the learned counsel for the plaintiffs.

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A perusal of the plaint indicates that the challenge by the plaintiffs is to the appointment of the defendants No.1 and 2 as trustees of the Trust on the ground that the same was not in accordance with the deed of trust dated 08.10.1923. There is no allegation regarding breach of trust but on the contrary, the allegations revolve dispute relating to the internal administration of the Trust. The plaint does not contain any allegation requiring the intervention of the Civil Court under Section 92 of CPC. This court in the case of Sri Satya Sai Loka Seva Trust & Ors. V. Sri Sathya Sai Central Trust & Ors. ( R.S.A. No.140/2019 ) had held that a suit challenging the internal affairs of a Trust does not fall within the prescription contained in Section 92 of CPC. Therefore, the contention of the learned senior

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counsel for the defendants that the reliefs sought for in the suit fall within Section 92 of CPC, is liable to be rejected.

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However, it is relevant to note that the trustees had removed the plaintiff No.2 in terms of a resolution dated 14.10.1994 which was unsuccessfully challenged by the plaintiff No.2 in O.S. No.497/1997 and an appeal filed by him in R.A. No.53/2012 was dismissed on 04.08.2018. The Regular Second Appeal filed by the plaintiff No.2 in R.S.A. No.2379/2018 is pending consideration before this court where no interim order is granted. The plaintiff No.2 has mentioned in the instant suit about his removal from the trusteeship of the Trust, the consequent challenge by him in O.S. No.497/1997 and the consequent appeal filed in R.A.No.53/2012 which was dismissed and the R.S.A. No.2379/2018 which is pending. Therefore, the plaintiff No.2 can no longer claim to be the hereditary trustee of the plaintiff No.1 and consequently cannot institute this suit on behalf of the plaintiff No.1. He is not entitled to file the present suit as a trustee of the

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Trust. Therefore, as rightly contended by the learned senior counsel for the defendants, there is no cause of action for the plaintiff No.2 to file the present suit.

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In that view of the matter, the revision petition

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deserves to be allowed. Consequently, it is allowed and the impugned order dated 22.08.2023 passed by the trial court in O.S. No.617/2023 is set aside and the plaint is rejected as the plaintiff No.2 has presently no locus standi to file the suit and the cause of action mentioned in the suit does not accrue to the plaintiff No.2. It is however open for the plaintiff No.2 to institute a fresh suit only after R.S.A. No.2379/2018 is unconditionally allowed in favour of the plaintiff No.2.

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In view of disposal of this review petition, all

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pending applications stand disposed.

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BVV/RH

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Sd/JUDGE

Sri. Kadekan Prakash Kamath v. Sri. Vitobha Rukma Bai Devara Bhandaram

Case brief

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Sri. Kadekan Prakash Kamath v. Sri. Vitobha Rukma Bai Devara Bhandaram

Case brief

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