Sri Jagadeesh S Vs Dr Gonchigari Narayana

DR. GONCHIGARI NARAYANA S/O LATE GIRIYAPPA AGED ABOUT 68 YEARS R/AT NO.8, RED OAK PORT MOLINI, ILLINOIS-61265 UNITED STATE OF AMERICA AT PRESENT R/AT NO.16/21, 3B, PEARL PALACE APARTMENT PALACE CROSS ROAD BENGALURU - 560020

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SMT JAYANTHI NARAYANA W/O DR. GONCHIGARI NARAYANA AGED ABOUT 60 YEARS R/AT NO 8, RED OAK PORT MOLINI, ILLINOIS - 61265 UNITED STATE OF AMERICA

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AT PRESENT R/AT NO 16/21, 3B PEARL PALACE APARTMENT PALACE CROSS ROAD BENGALURU - 560040

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MISS PRIYADARSHINI NARAYANA D/O DR. GONCHIGARI NARAYANA AGED ABOUT 60 YEARS R/AT NO 8, RED OAK PORT MOLINI, ILLINOIS - 61265 UNITED STATE OF AMERICA AT PRESENT R/AT NO.16/21, 3B, PEARL PALACE APARTMENT PALACE CROSS ROAD, BENGALURU - 560020 REP. BY ITS GPA HOLDER SMT. JAYANTHI NARAYANA W/O DR. GONCHIGARI NARAYANA

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SMT ANASUYA RAMAKRISHNA W/O G. RAMAKRISHNA AGED ABOUT 55 YEARS R/AT NO 1344, 3^RD CROSS, MRHB COLONY, VIJAYANAGAR NORTH, BENGALURU - 560079.

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MISS SHILPA RAMAKRISHNA D/O G. RAMAKRISHNA AGED ABOUT 32 YEARS R/AT NO 1344, 3^RD CROSS, MRHB COLONY, VIJAYANAGAR NORTH, BENGALURU - 560079

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SRI S Y KUMAR S/O SANNAVEERAPPA AGED ABOUT 44 YEARS R/AT HULIGERE VILLAGE, MADHULURU POST SIRA TALUK, TUMKUR DISTRICT-572137.

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SRI N R RAJANNA S/O RANGANATHAPPA AGED ABOUT 33 YEARS R/AT NO.99/E, 16^TH MAIN, VIJAYANAGARA, BENGALURU - 560040.

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SRI SANNAVEERAPPA S/O LATE THIMAPPA AGED ABOUT 77 YEARS R/AT HULIGERE VILLAGE MADHULURU POST SIRA TALUK-572137 TUMKUR DISTRICT

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SRI VENAKTESHWARA EDUCATION TRUST NO.96, SRI MARUTHI INDUSTRIAL TOWN, PEENYA 2^ND STAGE BENGALURU - 560058 REP. BY ITS SECRETARY SRI S. JAGADEESH

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…RESPONDENTS

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(BY SRI. H.N.SHASHIDHARA, SR. COUNSEL FOR SRI. H.S. SUHAS, ADV. FOR R1 TO R5, R6 - SERVED AND UNREPRESENTED, V/O DT: 25/10/2023 NOTICE TO R7 D/W, V/O DT: 25/10/2023 STEPS TO BRING LR's OF DECEASED R8 D/W V/O DT: 3/6/2022 NOTICE TO R9 D/W.)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD: 03.03.2018 IN O.S.NO.1784/2012 PASSED BY THE HON'BLE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE [CCH NO.16] IN REJECTING [I.A.NO.12] VIDE ANNEXURE-F ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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The present writ petition is by defendant No.1, in suit in O.S.No.1784/2012 pending consideration on the file of XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) ('Trial Court' for short) being aggrieved by the order dated 03.03.2018 passed on IA No.12 filed by him under Order XIV Rule 5 r/w Section 151 of Code of Civil Procedure.

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The above suit is filed by the plaintiffs who are respondent Nos.1 to 5 herein seeking for the following reliefs:

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(a) Directing the defendant No.1 to furnish books of accounts right from August 2005 till today, in respect of Sri. Venkateshwara Education Trust registered on 10.08.2005;

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(b) For permanent injunction restraining defendants or anybody claiming under or through them from in any manner interfering with the affairs of Sri. Venkateshwara Education Trust and its Institutions;

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(c) To remove defendant No.1 as Trustee as well as Secretary of Sri. Venkateshwara Education Trust;

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(d) Declare that the action of the defendants in registering the document No.65/2007-08 dated 21.01.2008 amending the revoked Trust deed

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dated 03.08.2002 and subsequent action thereof, are null and void;

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(e) Of scheme for Sri.Venkateshwara Education Trust and

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(f) To grant such other reliefs that this Hon'ble Court deems fit and proper in the facts and circumstances of the case, including the cost of this proceedings, in the interest of justice and equity.

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Case of the plaintiffs is that there was a Trust by name Sri. Venkateshwara Education Trust, originally registered on 03.08.2002 which was dissolved on 10.08.2005. On the same day, another Trust under the same name was formed i.e. on 10.08.2005. According to the plaintiffs, even after dissolution of the Trust dated 03.08.2002 and constitution of the new Trust dated 10.08.2005, plaintiffs, continued to be the Trustees and managed the affairs of both Trusts and the defendant No.1 also continued to be the Secretary of the said Trusts.

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On the contrary, the case of defendant No.1, is that after dissolution of Trust dated 03.08.2002, on 10.08.2005, the plaintiffs had no role or right in the erstwhile Trust. It is his contention that the Trust dated 03.08.2002 and 10.08.2005 are

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different and distinct and having no relationship with each other whatsoever.

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The Trial Court has framed the following issues

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based on the pleadings:

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Issues

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1. Whether the plaintiffs prove that they are the Trustees of the Venkateshwara Education Trust?

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2. Whether the plaintiffs prove that the defendant No.1 acting against interest of the Trust?

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3. Whether the plaintiffs prove the obstruction of the defendants?

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4. Whether the plaintiffs are entitle for the reliefs as sought for?

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5. What order or decree?

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Additional Issue

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1. Whether the plaintiffs prove that the defendant No.1 has not furnished the books of accounts of Sri. Venkateshwara Education Trust registered on 10.08.2005?

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By the application in IA No.12 the defendant No.1,

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sought framing of the following additional issues;

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(i) Whether the plaintiff proves that the Sri.Venkateshwara Education Trust dated 10.08.2005 was acted upon or not?

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(ii) Whether the plaintiffs proves that the Sri. Venkateshwara Educational Trust dated 03.08.2022 and Sri. Venkateshwara Educational Trust dated 10.08.2005 are different and distinct or not?

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By the impugned order while rejecting the said

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application, certain events which had taken place subsequent to filing of the suit has also been taken note of by the Trial Court.

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The Trial Court in the impugned order has taken note of the proceedings in MFA No.1477/2014 and connected matters and the orders passed by this Court on 24.04.2014 as well as contempt proceedings in CCC No.1132/2014 dated 18.09.2014 which had apparently arose out of the interim order passed in the said suit. The said order had been carried up to the Hon'ble Apex Court in SLP No.27669/2014. Having taken note of these proceedings, the Trial Court has come to the conclusion that the additional issues sought to be framed by defendant No.1, apart from superfluous, has also attained finality, thereby hit by principles of res judicata .

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Assailing the said order, learned counsel for the petitioner referring to the said prayer at column No.2 submits that the very prayer/relief sought for declaration with regard to registration of documents dated 21.01.2008 which was executed by defendant No.1, amending the revoke Trust dated 03.08.2002 as null and void. Therefore, it is the burden on the

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part of the plaintiffs to prove whether Trust dated 03.08.2002 and 10.08.2005 are one and the same or different?. He submits that the Trial Court without even adverting to the merits of the case, ought not to have come to the conclusion as issue raised is by principles of resjudicata. Hence, seeks for allowing of the petition.

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Per contra, learned Senior Counsel for respondent Nos.1 to 5 referring to paragraph No.6 of the judgment of Hon'ble Apex Court in the case of C.V. Rajendran vs.

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N.M.Muhammad Kunhi reported in (2002) 7 Supreme

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Court Cases 447, submits that the principles of res judicata is applicable at two different stages of the same proceedings and since the defendant No.1 had already raised the issue of existence of two Trusts and the same having negated right upto the Hon'ble Apex Court, cannot be permitted to reagitate the same by seeking framing of additional issues.

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He further submits that amidst all these, the defendant No.1 himself has filed another suit in O.S.No.5506/2017, seeking relief for declaration regarding existence of two different Trusts and the said suit has been

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dismissed on 17.12.2021. The said fact is not denied by the learned counsel for the petitioner. Hence, the learned senior counsel submits that framing of additional issue and calling upon the parties to lead evidence thereon, the situation of the matter is exercised in futility and contrary to the settled principles of law. Hence, seeks for dismissal of the petition.

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Heard and perused the records.

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The controversy between the parties is with regard to Trust dated 03.08.2002 which has been admittedly dissolved on 10.08.2005 and another Trust has been created on the very same date i.e. on 10.08.2005. While the plaintiffs who are respondent Nos.1 to 5 herein, claims that the said Trust is one and the same, which is denied by the defendant No.1, who contends that the same are different and distinct Trusts. Even though the learned counsel for the defendant No.1 as of fairly submits that since the defendant No.1 is claiming the said two Trusts are different and distinct, the burden ought to have been on the defendant No.1 in view of the admitted position of facts that when such a point has already been canvassed in MFA No. No.1477/2014 and connected matters and in the SLP

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No.27669/2014 before the Hon'ble Apex Court by the very same defendant No.1 and when same having been negated, in the light of the law laid down by the Hon'ble Apex Court in the

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case of C.V. Rajendran and Anr . (supra) and the same having taken note of by the Trial Court, in the impugned order at paragraph No.15, this Court do not see any jurisdictional error or irregularity committed by the Trial Court in dismissing the application.

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Necessary also to note that the Trial Court has also observed taking note of the submission made on behalf of the plaintiffs that the issues that are already framed would cover the contentions being urged by defendant No.1 thereby the Trial Court has ensured the interest of the defendant No.1, is also protected in the matter, warranting no additional issues to be framed, petition lacks merits and the same is dismissed .

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Sd/(M.G.S. KAMAL) JUDGE

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SSD, List No.: 1 Sl No.: 5

Sri Jagadeesh S v. Dr Gonchigari Narayana

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Sri Jagadeesh S v. Dr Gonchigari Narayana

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