Important point
Suit u/s 92 CPC which contained serious allegations for forgery and fraud would not be barred by Section 40 of Mysore Religious and Charitable Institutions Act which contained provision for enquiry only in a summary manner.

Headnote:Civil Procedure Code, 1908—Section 92—Mysore Religious and Charitable Institutions Act, 1927—Sections 17, 18, 40 and 40A—Educational Trust—Suit u/s 92 CPC by respondents that there was forgery of purported letter by which respondent No. 3 had supposedly resigned and there were allegations of mis-management of respondent trust—Removal of appellant trustees was prayed—Leave was granted by Court by rejecting objections of appellant and order was upheld in revision—Application by appellant to reject plaint as suit not maintainable by virtue of Section 40 of Mysore Act—Trial Court dismissed the application—Revision against order was dismissed by High Court—Appeal—Enquiry contemplated u/s 17 of Mysore Act was a summary enquiry which did not bar jurisdiction of Civil Court—Plaint had serious allegations of forgery and fraud and such allegations could not be enquired into in a summary manner by Muzrai Officer under the Act—Even otherwise once leave was granted question of rejecting plaint did not arise—Mysore Act stood repealed in 2003 and plaint when taken up for hearing could not be held to be barred as all procedural laws were retrospective unless for expressly stated to the contrary—No—Reason to interfere.
       Held : An enquiry contemplated under Section 17 is a summary enquiry of the type held under the various Land Revenue Codes. That it would be a summary enquiry is clear from Section 37 of the Mysore Act. Such summary enquiries do not bar jurisdictions of Civil Courts. Even otherwise, we are unable to accept the submission that Section 18(5) allows the Muzrai Officer to deal with cases where serious allegations of fraud and/or forgery are made. Section 18(5) merely enables the Muzrai Officer to pass ancillary or necessary orders in respect of matters covered by sub-sections 1 to 4 of the Section. The enquiry has to be in respect of matters laid down in sub-sections 1 to 4 of Section 18. Further an order under Section 18 can only be passed by the Muzrai Officer with the previous sanction of the Government. This also shows that these provisions are not meant to be a substitute for judicial proceedings. A perusal of the Plaint shows that there are serious allegations of forgery, fraud, diversion of trust properties in favour of Appellants 2 & 3 and the brothers of the 1st Appellant. Such serious allegations can never be enquired into, in a summary manner by a Muzrai Officer in the type of enquiry contemplated under Section 17 of the Mysore Act. These are matters which can only be gone into by a Court. The trial court was thus right in holding that these are matters which would require issues to be framed and which were required to be determined on evidence. (Paras 8 and 9)
       Even otherwise leave to file the suit was granted after hearing parties. Once leave was granted the question of rejecting the Plaint under Order VII Rule 11 did not arise. An application for rejection of the Plaint should have been made prior to the leave having been granted or at the time when the Appellants opposed grant of leave. Having lost in their opposition to grant of leave it was not open to the Appellants to then apply for rejection of the Plaint under Order VII Rule 11 CPC. (Para 11)

Judgment

S.N. Variava, J.—This Appeal is against the Judgment of the Karnataka High Court dated 4th October, 2001.

2. Briefly stated the facts are as follows:

1st Appellant is the husband of the 3rd Appellant. Appellants 2 & 3 are the father and mother of the 1st Appellant. 4th Respondent is a educational trust which has been brought into existence with the 1st Appellant as the Founder Chairman/ Trustee along with Respondents as fellow Trustees. Disputes having arisen between the 1st Appellant and his wife (3rd Appellant) resulted in a number of litigations including this litigation. According to the Appellants, Respondent No.3 resigned from the trusteeship of the 4th Respondent Trust on 11th February, 1999. Appellants 2 and 3 were inducted as additional Trustees on 15th March, 1999. On 1st July, 1999 Respondents 1 & 2 were removed from trusteeship. On 28th September, 1999 the Respondents instituted Suit No. 8355/99 before the Principal City Civil Judge, Bangalore under Section 92 of the Code of Civil Procedure claiming that there was forgery of the purported letter dated 11th February, 1999 by which Respondent No. 3 had supposedly resigned. Allegation of mis-management of the 4th Respondent Trust and its properties are also made. Removal of the Appellants as trustees is prayed for. A prayer is also made for cancellation of a Lease of the Trust properties granted in favour of Appellants 2 & 3.

3. Under Section 92 of the Civil Procedure Code, 1908 a suit can only be filed by the Advocate General or by two or more persons having an interest in the trust after having obtained the leave of the Court. The Appellants opposed grant of leave. Their submissions were not accepted and the Court granted leave on 10th November, 1999. The Revision filed by the Appellants was dismissed on 11th February, 2000. Whilst contesting grant of leave the Appellants did not contend that a suit under Section 92 was not maintainable in view of the provisions of the Mysore Religious and Charitable Institutions Act, 1927 (hereinafter referred to as the Mysore Act).

4. After the Revision was dismissed the Appellants applied for rejection of the Plaint under Order VII Rule 11 C.P.C. According to the Appellants the suit was not maintainable by virtue of Section 40 of the Mysore Act. This application was dismissed by the trial Court on 6th August, 2001. The trial court held that the question whether the Mysore Act applied or not would have to be decided evidence. The Appellants filed a Revision before the High Court of Karnataka which has been dismissed by the impugned Judgment.

5. At this stage, it must be mentioned that the Mysore Act has been repelled in the year 2003. Thus, even presuming the application under Order VII Rule 11 was required to be allowed, even then the Plaint would only have to be returned for presentation to the proper Court. Now the proper Court would be the Court of the Principal City Civil Judge, Bangalore which is the same Court. Thus it would be an idle formality to have the Plaint rejected to be presented again to the same Court. In such a case no question of limitation would arise as the time taken in the earlier suit would get excluded. In the above view no further consideration was necessary. However, as the matter has been fully argued, we deal with all the contentions.

6. Mr. Venugopal submitted that the Mysore Act is a complete Code in itself. He submitted that all matters/issues raised could only have been raised in an enquiry under Section 17 and could only have been dealt with by an Order under Section 18 of the Mysore Act by the Muzrai Officer. He submitted that by virtue of Section 40 of the Mysore Act the suit was barred. In order to consider this submission it is necessary to set out the relevant provisions of the said Mysore Act. Sections 2(1), 17, 18, 19, 20, 21, 37, 38, 40 and 40A of the Mysore Act read as follows:

“2(1). “Religious or Charitable Institution” includes an endowment for the carrying out of any religious or ch

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2005 Supreme(SC) 1423

Important pointSuit u/s 92 CPC which contained serious allegations for forgery and fraud would not be barred by Section 40 of Mysore Religious and Charitable Institutions Act which contained provision for enquiry only in a summary manner.

Cases Referred (1)

Important point
Suit u/s 92 CPC which contained serious allegations for forgery and fraud would not be barred by Section 40 of Mysore Religious and Charitable Institutions Act which contained provision for enquiry only in a summary manner.