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2007 Supreme(Kar) 309
2007(5) Kar. L.J. 625
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
V. JAGANNATHAN, J.
L. SHIVALINGAIAH - Appellant
VERSUS
PANCHAJANYA VIDYA PEETHA WELFARE TRUST (REGISTERED), BANGALORE AND OTHERS – Respondents
Miscellaneous First Appeal No. 4026 of 2007
Decided on : 4th June, 2007
Sri Abhinav R. for M/s. Kumar and Kumar Associates, Advocates for Appellant;
Sri Madhusudan R. Nayak, Advocate for Respondents-l and 2;
Sri H.V. Harish, Advocate for Respondents-2, 3, 5 and 6;
Sri Jayakumar S. Patil, Senior Advocate for Sri M.S. Shyam Sundar, Advocate for Respondents-7 to 9.
Headnote:Code of Civil Procedure, 1908 - Order 39, Rules 1 and 2 - Temporary injunction - Grant of - Is a matter of judicial discretion - Party seeking should establish : Prima facie case, balance of convenience and irreparable injury. [V. Jagannathan, J.]: It is a well settled proposition of law that grant of an injunction is a matter of judicial discretion and the party seeking such relief will have to establish (a) a prima facie case (b) balance of convenience in his favour and (c) he would suffer an irreparable injury, if his prayer for temporary injunction is disallowed. This is a sine qua non. Even if a case is made out to bring the case within the ambit of a "triable case", the relief of injunction has to be granted.
Cases Referred: (1993) 4 SCC 727; AIR 1961 SC 1570; RFA. 2160/2006; 2159/2001; AIR 1974 SC 2141.
Code of Civil Procedure, 1908 - Section 92 - Suit under - Nature of - Is representative - Applicability of the provision - Conditions to be satisfied. [V. Jagannathan, J.]: A suit that is contemplated by this Section is a representative suit and for the application of said section, the following conditions must be satisfied: 1) The suit must relate to a public charitable or religious trust; 2) There must be an allegation of breach of trust or the direction of the Court must be required for administration of the trust, and 3) The reliefs claimed must be those mentioned in the Section. It is also settled law that the suit that is contemplated Under Section 92 of Civil Procedure Code is a representative suit which is to toe prosecuted by individuals not for their own interest but as the representative of the general public, in order to secure a proper administration of a public Trust. Dilatory settled principles : A suit under Section-92 is a suit of a special nature which presupposes the existence of a pubic trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the Plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section-92 are made out, if it is clear that the Plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section-92. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the Section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section-92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reasons why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is a asserted or denied and relief asked for on that basis, the suit falls outside Section-92. [AIR 1974 SC 2141].
Cases Referred: (1993) 4 SCC 727; AIR 1961 SC 1570; RFA. 2160/2006; 2159/2001; AIR 1974 SC 2141.
Injunctions - Temporary injunction - Grant of - What is sine qua non for. See, Code of Civil Procedure, 1908 - Order 39, Rules 1 and 2.
Cases Referred: (1993) 4 SCC 727; AIR 1961 SC 1570; RFA. 2160/2006; 2159/2001; AIR 1974 SC 2141.
The appellant herein was removed from the trusteeship of the 1st respondent-Panchajanya Vidya Peetha Welfare Trust (Registered) (hereinafter referred to as "Trust" for short) on the allegation of certain anti-trust activities, as mentioned in the articles of charges dated 31-5-2006. The said order of removal was the subject-matter of the original suit filed by the appellant herein in O.S. No. 800 of 2007, wherein, amongst other things, the appellant prayed for a declaration that the order of his removal from the 1st respondent-Trust is, illegal, invalid and without jurisdiction and for consequential relief of permanent injunction, restraining the defendants-respondents herein from interfering with the functioning/discharging of this duties as trustee of the "Trust" and for other reliefs.
2. An application was also filed under Order 39, Rules 1 and 2 of Civil Procedure Code, 1908 (I.A. No. 1) in the said suit, seeking the relief of temporary injunction against the respondents. The learned Trial Judge, after hearing the parties dismissed the said I.A. No. I giving raise to this appeal.
3. I have heard the learned Counsel for the parties and perused the material on record.
4. Sri Abhinav R., learned Advocate for M/s. Kumar and Kumar Associates appearing on behalf of the appellant submitted that the order of removal order is questioned before the Trial Court on several grounds in the suit filed by the appellant and one such ground is pertains to not following the mandatory provisions of Section 92 of the Civil Procedure Code and the second and more important ground is that the enquiry conducted by the Enquiry Officer was not in accordance with the principles of natural justice and that the appellant had filed his preliminary objections with regard to the jurisdiction of to the Enquiry Officer to conduct the enquiry proceedings, and despite filing of such objections, the Enquiry Officer proceeded to go on with the enquiry and the appellant was removed from trusteeship without considering his preliminary objections and that the appellant was not served with the copy of the enquiry report; and the order of removal of the appellant preceded the issuance of enquiry report to the appellant, which is clear from the proceedings of the Trust dated 6-1-2007 itself. It was also submitted that no procedure whatsoever is contemplated in the Trust Deed for removal of a trustee; and even the amended trust deed that was brought into effect by the Trust does not indicate in any clear terms the procedure to be followed by the Enquiry Officer and as such, the said provision in the Trust deed is rather vague and incoherent and therefore, in the absence of such provision, it was the duty of the 1st respondent-Trust to sought necessary permission from the jurisdictional Court, as required under Section 92 of the Civil Procedure Code before removal of the appellant from the trusteeship.
5. In support of the above contentions, the learned Counsel for the appellant placed reliance on the following decisions:
(i) Managing Director, ECIL, Hyderabad and Others v B. Karunakar and Others;
(ii) Bishan Das and Others v State of Punjab and Others;
(iii) Vidya Pragathi Educational Trust and Others v G. Kullayi Reddy
(iv) M. Janaki Prasad and Others v V.S. Kuber.
Support was also drawn from the observation found in Mulla on the Code of Civil Procedure, Volume I, page 539 to contend that, to resort provision of under Section 92 of the Civil Procedure Code, by two trustees of a temple against a co-trustee for his removal, the Court has the power to investigate charges of misconduct made by the defendant against the plaintiffs and even to remove them.
The sum and substances of the contentions urged by the appellant's Counsel is that recourse to Section 92 ought to have been taken by the respondent-trustees in view of there being no clear guidelines or procedure contained in the Trust deed for removal of the trustee. In the alternative, the very enquiry that is conducted
