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2008 Supreme(P&H) 1955
2009(1) LAW HERALD (P&H) 166
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Jaswant Singh
Civil Revision No.2600 of 2008
Jasbir Singh
v.
Guru Nanak Public School Trust
{Decided on 21/11/2008}
For the Petitioners:Mr. O.P. Goyal, Sr. Advocate with Mr. Hari Pal Verma, Advocate and Mr. Ashok Kumar, Advocate.
For the Caveator-Respondent No.1:Mr. Sumit Mahajan, Sr .Advocate with Mr. Sham Lal Bhalla, Advocate, Mr. K.S. Bhangu, Advocate and Mr. Amandeep Singh, Advocate.
IMPORTANT POINT
Rejection of plaint--Only averment made in plaint are to be looked into--Pleas taken by defendants in written statement wholly irrelevant for deciding application for rejection of plaint under Order 7, Rule 11 CPC.
Headnote:(A) Civil Procedure--Rejection of plaint--Only averment made in plaint are to be looked into--Pleas taken by defendants in written statement wholly irrelevant for deciding application for rejection of plaint under Order 7, Rule 11--|Civil Procedure Code, 1908, Order 7, Rule 11. (Para 22)
(B) Civil Procedure--Rejection of plaint--Suit for permanent injunction and rendition of account--Plea that suit is filed by Trust through one of trustees and as per Trust there are 12 trustees and there is no reference given in the plaint as to how many trustees are alive or dead--Further plea that the resolution has not been passed by the majority and wrong translation of clause 4 of the Trust Deed is appended--Not tenable for the purpose of deciding an application under Order 7 Rule 11--These are debatable issues and disputed question of facts which can be decided after leading both parties--Plaint cannot be rejected as only contents of plaint are to be seen--|Civil Procedure Code, 1908, Order 7, Rule 11. (Para 23)
(C) Civil Procedure--Rejection of plaint--Suit for permanent injunction and rendition of account by Trust--Question whether Trust is a legal entity or not is a mixed question of facts and law--It is a debatable issue and it to be decided after considering rival contention and evidence of both parties--Plaint cannot be rejected at this stage--|Civil Procedure Code, 1908, Order 7, Rule 11. (Para 24)
(D) Civil Procedure--Rejection of plaint--Suit for permanent injunction and rendition of account by Trust--Dispute related to school appertaining to Trust--Plea raised that plaint is liable to be rejected as there was non compliance of Section 92--Not tenable--Main purpose of Section 92 is to give protection to Public trust from being subjected to harassment by suit filed against it--Section 92 is not applicable when suit is instituted by Trust against third party--Condition precedent to invoke the provisions of Section 92 is that there should be a breach of trust and direction is sought for its administration--No allegation of breach of trust in present case--Suit is maintainable without resorting to proceeding under Section 92--Moreover in view of Order 1 Rule 9 no suit is defeated by reason of mis-joinder or non-joinder of parties except necessary party--Therefore plaint filed by Trust who is necessary party cannot be rejected on ground that trustee or original defendant had died--|Civil Procedure Code, 1908, Section 92, Order 7, Rule 11. (Para 25, 26 & 29)
(E) Civil Procedure--Impleadment--Impleadment of petitioner as defendants not objected by plaintiff and consequently they were allowed to be arrayed as defendants--Plaintiff also not objected to impleadment of respondent No.2 and 3 and they were also impleaded as defendants--Petitioner cannot raise any objection for impleadment of respondent no.2 and 3 because plaintiff is dominus litus of the case--Plaintiff rightly not objected to impleadment of both parties as defendant as he was not sure which is real defendant in view of Order 1, Rule 7--| Civil Procedure Code, 1908, Order 1, Rule 7--Civil Procedure Code, 1908, Order 22, Rule 10. (Para 31)
(F) Civil Procedure--Suit for permanent injunction and rendition of account by Trust through one of trustee--After death of one trustee impleadment of another trustee is devolution of interest--Order 22 Rule 3 is applicable in case of death of plaintiff--In present case plaintiff is a trust which is not a deceased person--Therefore, provisions of Order 22 Rule 10 will apply and not Rule 3--|Civil Procedure Code, 1908, Order 22, Rule 3 and 10. (Paras 33, 34)
(G) Civil Procedure--Impleadment--Limitation--Delay is not fatal for application under Order 22, Rule 10--| Civil Procedure Code, 1908, Order 22, Rule 10. (Para 36)
(H) Civil Procedure--Impleadment--Legal representative--Meaning of--Legal Representative is a person who in law represents the estate of a deceased person and includes any person who intermeddle with the estate of the deceased or where a party sues or is sued in representative capacity and the person on whom the estate devolves on the death of the party so sues or sued--|Civil Procedure Code, 1908, Section 2(11)--Civil Procedure Code, 1908, Order 22, Rule 10. (Para 34)
Jaswant Singh, J.:-The present petition under Article 227 of the Constitution of India has been filed by the petitioners, challenging the orders dated 29.2.2008 (Annexure P-19) and 6.12.2007 (Annexure P-15), passed by the learned Civil Judge (Senior Division), Ludhiana vide which (i) applications filed by the petitioners (Jasbir Singh and Surinder Singh sons of Jagat Singh) as well as defendant No.3-Kulwant Kaur Virdi, under Order 7 Rule 11 of Civil Procedure Code (in short “CPC”) for rejection of plaint has been dismissed; (ii) application filed by Avtar Singh Hunjan under Order 22 Rule 10 of CPC for substitution/to pursue the suit on behalf of the plaintiff-Trust has been allowed; (iii) application filed by present respondents No. 2 and 3 (Prem Singh and Ravinder Singh Sokhi) under Order 22 Rule 10 of CPC for substitution as defendants has been allowed; (iv) alternative prayer made in the application for rejection of plaint filed by the present petitioners (Jasbir Singh and Surinder Singh sons of Jagat Singh) for substitution in place of S. Jagat Singh and Giani Bhagat Singh as defendants has been allowed to the extent of impleadment of present petitioners as defendants, without ordering impleadment of Sh. Rajwinderjit Singh Gill as defendant in place of Kulwant Kaur Virdi.
2. The brief facts of the case giving rise to the matter in controversy are that present respondent No.1 – Plaintiff –Guru Nanak Public School Trust, Sarabha Nagar, Ludhiana (hereinafter referred to as “the Trust”) filed Civil Suit dated 21.2.2000 through Sh. Ranjit Singh Bhail in the court of learned Civil Judge(Senior Division), Ludhiana for rendition of accounts and permanent injunction restraining defendants No.1 and 2-S.Jagat Singh and Giani Bhagat Singh from posing themselves as Secretary and Member of Local Managing Committee of the School being run by the Trust and further restraining defendant No.3- Mrs. Kulwant Kaur Virdi from posing and working as Principal of Guru Nanak Public School”, Sarabha Nagar, Ludhiana (hereinafter referred to as “School”) by alleging that Ranjit Singh Bhail, Non Resident Indians (NRI) created a trust on 20.12.1969 for higher and quality education to the Punjabies settled in country and abroad on the basis of philosophy of guru and his teachings. In the Trust apart from himself being the settler, Sh. Ranjit Singh Bhail nominated 11 other persons as trustees. The Trust was registered on 25.2.1970 against Wasika No.462 with Sub-Registrar, Ludhiana. It is further alleged that a sum of Rs.1,35,628.50 ps,. was deposited on 8.9.1970 and thereafter a sum of Rs.2,70,256.50 ps, alongwith further interest was deposited and a sale deed dated 13.6.1973 for the land measuring 30.28.22 sq. yards situated at Kartar Singh Sarabha Nagar, Ludhiana was executed in favour of the Trust by Improvement Trust, Ludhiana. School is being run on that very land. It is further alleged that Sh. Ranjit Singh Bhail had contributed lot of money from his own pocket as he was fully devoted towards the aims and objectives of the Trust. Later on due to death of some trustees, constitution of the Trust was amended and re-registered on 7.6.1973 against Wasika No.2096 with Sub-Registrar, Ludhiana but the basic body of the Trust remained the same. Once again Trust was re-registered due to some changes on 25.10.1983 against Wasika No.8921 with Sub Registrar, Ludhiana. It is further alleged in the Civil Suit that for effective running of the institution / School founded by the Trust, a managing committee was formed in which Jagat Singhdefendant No.1 was nominated one of the members. Sh. Ranjit Singh Bhail was Secretary of the Trust. On 25.10.1983, managing committee was reconstituted and Jagat Singh became Secretary of the managing committee for a term of 5 years. It is further alleged that Jagat Singh – defendant No.1 alongwith Giani Bhagat Singh – defendant No.2 and in collusion with Mrs.Kulwant Kaur Virdi – defendant No.3 took complete control of the
