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2012 Supreme(UK) 436
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice B.S. Verma
First Appeal No. 142 of 2001
(Old No. 339 of 1993)
SRI KRIPAL SINGH BAJWA – Appellants
Versus
THE TRUST MANAV KENDRA & ORS. – Respondents
Decided on : 13.09.2012
For the Appellants 1 to 3 : Mr. M.S. Pal, Sr. Adv. with Mr. Tarun P.S. Takuli, Advs.
For the Appellants 4 to 6 :Mr. Siddhartha Sah, Advocate
For the Respdt. Nos.1, 4 & 15 : Mr. V.K. Kohli, Sr. Adv. with Ms. Vandana Singh, Adv.
For the Respdt. Nos. 15 & 22 :Mr. Vipul Sharma, Advocate
Headnote:(A) Civil Procedure Code, 1908, Sec. 92 — Ambit — Maintainability — Held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Sec. 92, C.P.C. — But if after evidence is taken it is found that the breach of trust alleged was not made out and that the prayer for direction of the Court is vague and is not based on any solid foundation or reason, but is made only with a view to bring the suit under the sec — Then suit purporting to be brought u/S 92, to be dismissed. (Para 35)
(B) Societies Registration Act, 1860 and C.P.C. 1908, Sec. 92 — Mere formation of a society under the Societies Registration Act, to carry out a charitable or useful or social purpose cannot be regarded as amounting to creation of a Trust for application of Sec. 92, C.P.C. — And that the property movable and immovable belonging to a society if not vested in trustees, shall be deemed to be vested in the governing body of such society — Thus, defendant no.1 is a trust as envisaged by Sec. 92, C.P.C. (Para 36)
(C) Income Tax Act, 1961, Sec. 2(15) and Sec. 12(A) — Aims and object of the trust are charitable within the meaning of sec. 2(15), Income Tax Act — But, the exemption given by the Assessing Officer of Income Tax Department to the respondent no. 1 was u/S 12A, Income Tax Act — A society having public charitable and religious purpose can be registered under the said Act — Here, the respondent no. 1 is a society registered under the Societies Registration Act and for that reason, it cannot be termed as a “trust” — Therefore, the provisions of Sec. 92, not attracted to the respondent no. 1/society — No interference — Appeal dismissed. (Paras 42 to 44)
¼v½ nhokuh izfØ;k lafgrk] 1908] /kkjk 92 & ifjf/k & iz;ksT;rk & Plaint esa flQZ vfHkdFkuksa dks igys ns[kuk gksrk gS fd okn /kkjk 92] C.P.C. dh ifjf/k esa vkrk gS ;k ugha & ijUrq lk{; izLrqr djus ds ckn ;g ik;k tk, fd vfHkdfFkr U;kl Hkax ugha fd;k x;k & vkSj U;k;ky; ds funsZ’k dh izkFkZuk vLi”V gS vkSj fdlh Bksl rF; ij vk/kkfjr ugha & vfirq okn dks flQZ /kkjk 92 ds rgr ykus ds n`f”Vdks.k ls dh xbZ gS & blfy, okn [kkfjt fd;k x;kA ¼izLrj 35½
¼c½ lkslk;Vh iathdj.k vf/kfu;e] 1860 vkSj nhokuh izfØ;k lafgrk] 1908] /kkjk 92 & ek= ,d lkslkbVh dks Societies Registration Act ds rgr cukuk fdlh iwrZ ;k lkekftd mn~ns’; ls] dkss Sec. 92, C.P.C. esa Trust ugha dgk tk ldrk & vkSj ;g fd py ;k vpy lEifÙk tks lkslkbVh gS vxj Trustees dks fufgr ugha gksrh rks og Society dh izca/k eaMy dks fufgr ekuh tk,xhA ¼izLrj 36½
¼l½ vk;dj vf/kfu;e] 1961] /kkjk 2¼15½ vkSj /kkjk 12(A) - Trust dk y{; vkSj mn~ns’; iwrZ] /kkjk 2¼15½] Income Tax Act ds vFkZ esa ijUrq vk;dj foHkkx ds fu/kkZj.k vfèkdkjh }kjk izfroknh ua- 1 dks nh xbZ NwV u/s 12A, vk;dj vf/kfu;e ftlds rgr og lkslkbVh ftldk lkoZtfud iwrZ ;k /kkfeZd mn~ns’; gS dks jftLVj djk;k tk ldrk gS lkslkbVh iathdj.k vf/kfu;e] ftl dkj.k mls “Trust” ugha dgk tk ldrk & bl izdkj Sec. 92 ds izko/kku izfroknh ua- 1 ij vkdf”kZr ugha & dksbZ gLr{ksi ugha & vihy fujLrA ¼izLrj 42 ls 44½
Hon’ble B.S.Verma, J.
This appeal is directed against the judgment and decree dated 29.3.1993, passed by the IV Additional District Judge, Dehradun, whereby the application (paper no. 11-C) moved under Section 92 C.P.C. by the applicant-plaintiffs (appellant nos. 1 to 3 herein) was rejected and in consequence of rejection of the application, the application for temporary injunction (paper no. 9-C) and the application to amend the suit (paper no. 40A) have been rejected. The suit has also been dismissed.
2. Brief facts giving rise to the present appeal are that on 2.4.1990, applicant-appellant nos. 1 to 3 herein Kirpal Singh Bajwa, Ram Chand and Master Harpinder Singh moved an application under Section 92 C.P.C. in the court of the District Judge, Dehradun, alleging therein that there is a trust for public purposes of charitable activities and religious nature situated at Village Bharuwala (Subhash Nagar) district Dehradun consisting of approximately 100 Bighas of land and various charitable buildings raised thereon including the worshipping places for the use and benefit of the general public at large and the said trust is known as ‘Manav Kendra’, which is being managed by a chairman and a managing committee i.e. defendant no. 2 to 30. In paragraph no.2 of the application, the applicants have claimed themselves to be followers of the charitable mission of the alleged trust ‘Manav Kendra’ having faith and belief in the spiritual teachings of late Sant Kirpal Singh Ji Maharaj, who had inaugurated the said trust. In paragraph no.3, the applicants have alleged the breaches having been committed by the defendant no.2 as contained herein. In paragraph no. 4 of the application, it is mentioned that the details are given in the draft plaint attached hereto as part of this application as well for a suit under Section 92 C.P.C. In paragraph no. 5, the relief sought in the suit have been enumerated in this application. In the application (paper no. 11-C) it has been prayed that leave of the court under Section 92 C.P.C. may be granted to file the suit.
3. On presentation of the said application, the Presiding Officer appears to have passed an on 2-4-1990 in his own hand to the following effect: -
“Leave to file the application u/s 92 CPC is granted. Ofice to report.”
4. However, it appears that on the back of the draft plaint, the Munsarim of the Court on 2.4.1990 itself has endorsed his report on the point of limitation, jurisdiction of the court and sufficiency of court fee. The record was put up before the District Judge Dehradun on 4.4.1990.
5. It is obvious from a perusal of the original record that on 4.4.1990 on the report of the Munsarim, order to register the suit was passed and summons to file written statement were ordered to be issued fixing 24-5-1990 for written statement and 31-5-1990 for framing of issues. The District Judge on temporary injunction application (paper no. 9C2) also appears to have passed an ex parte order to maintain status quo in respect of the disputed property and on 4-9-1990, learned counsel for both the parties requested the District Judge to decide application under Section 92 C.P.C. first whether the suit is maintainable or not and the District Judge has fixed 5-9-1990 for hearing on objection on that point.
6. It also appears that the defendant nos. 16, 17 jointly and defendant no.30 separately have filed their written statements in the suit on 2-7-1990.
7. On 4-9-1990, the following order has been passed by the District Judge:
“Present: Sri Hari Singh counsel for the plaintif.
Sri S. C. Virmani counsel for the defendant.
The parties’ counsel agree that the question of maintainability of the present suit u/s 92 C.P. C. be decided first. Fix for disposal of this preliminary objection on 5-9-90.”
8. It is an admitted fact of the case that no order was passed by the trial Court on the question of maintainability of the suit under Section 92 of the C.P.C. till the transfer of the suit to t
