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2021 Supreme(Kar) 613
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
SACHIN SHANKAR MAGADUM, J.
Havinal Saranabasappa - Appellant
Versus
A. Mahesh and Ors. - Respondents
W.P. No. 1079 of 2013
Decided On : 17-03-2021
For the Appellant : S.H. Mittalakod for V.M. Sheelvant.
For the Respondents: Gode Nagaraj.
Headnote:
Civil Procedure Code, 1908 – Section 92 – Per contra – Relief sought – Person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature – Respondents have filed scheme suit under Section 92 seeking to appoint first plaintiff as Trustee and to direct defendant to furnish accounts of Trust for scrutiny – This was strongly resisted by petitioner contending that respondents-plaintiffs having regard to nature of relief sought in plaint cannot maintain scheme suit under Section 92 of CPC –Held, Court of view that plaintiffs cannot seek a direction for appointment of first plaintiff as trustee since said relief sought is an individual remedy and same would not fall within scope of Section 92 of CPC – Impugned order passed by Court below granting relief to respondents-plaintiffs to institute a suit under Section 92 of CPC is palpably erroneous and same suffers from perversity and is liable to be set aside – Application filed by respondents-plaintiffs under Section 92 of CPC is rejected – However, order passed by this Court would not come in way of respondents-plaintiffs in pursuing their individual remedy by instituting appropriate proceedings in accordance with law before competent forum – Petition disposed of.
ORDER :
Sachin Shankar Magadum, J.
1. The captioned civil revision petition is filed challenging the order dated 9.7.2013 passed in Misc. case No. 3/2013.
2. The respondents have filed the scheme suit under Section 92 seeking to appoint the first plaintiff as Trustee and to direct the defendant to furnish the accounts of the Trust for scrutiny. Having filed the suit under Section 92 of CPC, it appears an application was filed seeking leave of the Court to prosecute the scheme suit under Section 92 of CPC. This was strongly resisted by the petitioner contending that the respondents-plaintiffs having regard to the nature of the relief sought in the plaint cannot maintain the scheme suit under Section 92 of CPC. The Court below having heard the parties to the suit has allowed the petition filed under Section 92 of CPC permitting the respondents-plaintiffs to institute the suit under Section 92 of CPC. The said order is under challenge.
3. The learned counsel for the petitioner would vehemently argue before this Court and contend that the nature of relief sought in the plaint would clearly indicate that the respondents-plaintiffs are seeking remedy of infringement of an individual right and by filing the suit under Section 92 intends to vindicate a private right. To buttress his arguments, he would place reliance on the decision of the Apex Court rendered in Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another, AIR 1974 SC 2141 and the Division Bench decision of this Court in Sri. C.R. Shivananda and another vs. Sri. H.C. Gurusiddappa and others, 2012 (2) KCCR 1186. By placing reliance on these two decisions, he would submit to this Court that the order passed by the Court below permitting the respondents-plaintiffs to institute the suit under Section 92 of CPC is palpably erroneous and the reasoning assigned by the learned Judge while allowing the Misc. applications runs contrary to the settled proposition of law rendered by the Hon'ble Apex Court cited supra.
4. Per contra, the learned counsel appearing for the respondents-plaintiffs would vehemently argue that the order under challenge does invite the ingredients of Section 92 of CPC and thereby the order under appeal would not warrant interference by this Court. He would further submit that the learned Judge has dealt in detail and by referring to the decisions which are squarely applicable to the present set of facts has allowed the miscellaneous application filed under Section 92 of CPC and has permitted the respondents-plaintiffs to prosecute the suit under Section 92 of CPC.
5. Heard the learned counsel for the petitioner and the respondents.
6. The respondents have filed the suit seeking for a direction to appoint the first plaintiff as the trustee and a further direction is sought against the defendant to furnish the accounts. For better understanding, the prayer made at Para 15 of the plaint is culled out as under :
"15. PRAYER: Therefore, plaintiffs humbly pray that this Hon'ble Court may be pleased to:
(i) appoint the first plaintiff as Trustee;
(ii) to direct the defendant to furnish the accounts of the Trust for scrutiny; and
(iii) to pass such other order/orders as this Hon'ble Court deems fit and proper in the circumstances of the case, which will meet the ends of justice."
7. By seeking the prayer at clause (i) of the prayer, the respondents-plaintiffs are clearly seeking personal remedy by invoking the provisions of Section 92 of CPC. The prayer sought in the plaint would squarely fall within the ambit of the proposition laid down by the Apex Court as well the Division Bench of this Court. On perusal of the prayer, I am of the view that the respondents-plaintiffs are suing the present suit to vindicate the personal rights and not the right of a public. In that view of the matter, the proposition laid down by the Apex Court in the decision cited supra is squarely application to the present case. The Hon'ble Apex Court at para 10 has held as follows :
"A sui
