SHREE BEERESHWARA (CHANNAKESHWARA) vs G. N. SATHYA - 2022 Supreme(Online)(Kar) 33928

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2022 Supreme(Online)(Kar) 33928

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 30^THDAY OF SEPTEMBER, 2022

BEFORE

THE HON9BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO.9267 OF 2022(GM-CPC)

BETWEEN:

1. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY DEVARU TEMPLE, SITUATED AT
SY. NO. 460 OF MARALIGA VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.
REP. BY ITS PRESIDENT
H.C. CHANNEGOWDA, AGED ABOUT 67 YEARS,
S/O. LATE CHANNEGOWDA @ THAMMEGOWDA,
R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

2. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST SITUATED AT MARALIGA,
GUDIDODDI AND HEGGADEDODDI, KOPPA
HOBLI, MADDUR TALUK, MANDYA
DISTRICT-571428.

REPRESENTED BY ITS HONORARY PRESIDENT,
M MALLEGOWDA, AGED ABOUT 70 YEARS,
S/O LATE NINGEGOWDA, R/O GUDIDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

3. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST, REP. BY ITS PRESIDENT
H.C. CHANNEGOWDA, AGED ABOUT 67 YEARS,
R

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S/O. LATE CHANNEGOWDA @ THAMMEGOWDA,
R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

4. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS VICE PRESIDENT
G.C. CHIKKAIAH, AGED ABOUT 60 YEARS, SON OF
LATE YALAVAIAH, R/O GUDIDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

5. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS GENERAL SECRETARY
M C MARI HEGGADE, AGED ABOUT 60 YEARS, S/O
MARIHEGGADE R/AT MARALIGA VILLAGE AND POST,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.
(DELETED VIDE ORDER DATED 27.06.2022)

6. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS JOINT SECRETARY,
M.C. YATHISH KUMAR, AGED ABOUT 46 YEARS,
S/O. M.CHANNEGOWDA, R/O MAALIGA VILLAGE AND
POST, KOPPA HOBLI, MADDUR TALUK, MANDYA
DISTRICT-571428.
(DELETED VIDE ORDER DATED 27.06.2022)

7. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS ORGANIZING
SECRETARY CHANDRU, AGED ABOUT 50 YEARS, R/O.
KODIDODDI VILLAGE AND POST, KOPPA HOBLI, MADDUR
TALUK, MANDYA DISTRICT-571428.

8. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS TREASURER,
M.V. ASHOKA, AGED ABOUT 45 YEARS,
S/O VENKATACHALA GOWDA, R/O. MARALIGA

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VILLAGE AND POST, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

9. SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST REP. BY ITS ADVISOR
NANJEGOWDA, AGED ABOUT 45 YEARS,
S/O LATE CHANNEGOWDA, R/O. MARALIGA VILLAGE,
AND POST, KOPPA HOBLI, MADDU TALUK,
MANDYA DISTRICT-571428.

SHREE BEERESHWARA (CHANNAKESHWARA)
SWAMY SEVA TRUST, REP. BY TRUSTEES

10. LAKKA HEGGADE,
AGED ABOUT 80 YEARS,
SON OF LATE KESARE CHIKKA HEGGADE,
R/O. MARALIGA VILLAGE, MARALIGA POST, KOPPA HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571428.

11. KRISHNA
AGED ABOUT 51 YEARS,
SON OF LATE POOJARI LAKKA HEGGADE,
R/O. MARALIGA VILLAGE, MARALIGA POST, KOPPA HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571428.

12. EREGOWDA
AGED ABOUT 45 YEARS, SON OF
MARICHANNEGOWDA, R/O. MARALIGA
VILLAGE, MARALIGA POST, KOPPA HOBLI, MADDUR
TALUK, MANDYA DISTRICT-571428.

13. M. N. APPAJI
AGED ABOUT 48 YEARS,
S/O LATE NANJEGOWDA, R/O MARALIGA VILLAGE,
MARALIGA POST, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

14. H. ARUVA
AGED ABOUT 46 YEARS,

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S/O. LATE HONNAIAH, R/O. MOODALADODDI VILLAGE,
MARALIGA POST, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

15. M. K. ASHOK
AGED ABOUT 43 YEARS,
S/O. LATE KEMPEGOWDA, R/O. MARALIGA VILLAGE,
MARALIGA POST, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

16. BORAIAH
AGED ABOUT 70 YEARS,
S/O LATE SIDDIAH, R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

17. JAVARAYI
AGED ABOUT 58 YEARS,
S/O ARUVA HEGGADE, R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

18. CHANNEGOWDA
AGED ABOUT 64 YEARS,
S/O CHIKKA HYDEGOWDA,
R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

19. M. D. KRINACHARI
AGED ABOUT 42 YEARS,
S/O DASACHARI, R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

20. SHIVANNA
AGED ABOUT 46 YEARS,
S/O. HONNASHETTY, R/O. HEGGADEDODDI VILLAGE,

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KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

21. M. H. JAVARAYI
AGED ABOUT 46 YEARS,
S/O. HUCHA HEGGADE, R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

22. H. RAJU
AGED ABOUT 58 YEARS,
S/O LATE HONGANOORA HEGGADE,
R/O. HEGGADEDODDI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

23. SMT. RANGALAKSHMAMMA
R/O. MARALIGA VILLAGE, MARALIGA POST,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

24. CHANNAPPA
AGED ABOUT 56 YEARS,
S/O. KUNTAIAH, R/O. MARALIGA VILLAGE,
MARALIGA POST, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.
...PETITIONERS
(BY SRI.D.R.RAVISHANKAR, SR.COUNSEL FOR
SRI.SACHIN B S, ADVOCATE;
V/O DTD: 27/06/2022 P5 & 6 ARE DELETED)

AND:
1. G. N. SATHYA
ADVOCATE,
AGED ABOUT 43 YEARS,
S/O NARAYANAGOWDA G.H., RESIDENT OF

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GOLLARADADDI VILLAGE, KOPPA HOBLI, MADDU TALUK,
MANDYA DISTRICT-571428.

2. K. DEVARAJU
ADVOCATE,
AGED ABOUT 42 YEARS, S/O LATE DASAIAH,
R/O KOPPA VILLAGE AND HOBLI, MADDU TALUK,
MANDYA DISTRICT-571428.

3. H. K. SHIVAKUMAR
ADVOCATE,
AGED ABOUT 50 YEARS, S/O LATE KARIGOWDA,
R/O HARALAKERE VILLAGE, KOPPA HOBLI,
MADDUR TALLUK, MANDYA DISTRICT-571428.

4. JEEVAN. M. H.
AGED ABOUT 33 YEARS, AGRICULTURIST
S/O HONNEGOWDA, R/O. MARALIGA VILLAGE AND POST,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

5. M. C. CHANNEGOWDA @ RAMANNA
AGED ABOUT 86 YEARS, S/O LATE KARIGOWDA,
R/O. MARALIGA VILLAGE, MARALIGA POST,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

6. M. C. CHANNAIAH
AGED ABOUT 78 YEARS,
S/O LATE KARICHANNAIAH,
R/O. MARALIGA VILLAGE, MARALIGA POST,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

7. THE DEPUTY COMMISSIONER
MANDYA DISTRICT,
MANDYA-571401.

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8. THE TAHSILDAR
MADDUR TALUK,
MADDUR-571428.

9. THE DISTRICT REGISTRAR OF SOCIETIES
OFFICE SITUATED OPPOSITE TO DDPI OFFICE,
STADIUM ROAD, MANDYA-571404.

10. M. BYRASHETTY @ KRISHNA
S/O LATE GAVISHETTY,
AGED ABOUT 65 YEARS.
R/O MARALIGA VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

11. CHALUVEGOWDA
S/O LATE EREGOWDA,
AGED ABOUT 65 YEARS,
R/O MARALIGA VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

12. VINAY M. C.
S/O LATE EAREGOWDA,
AGED ABOUT 65 YEARS,
R/O MARALIGA VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

13. M. H. LAKKAPPA
S/O HUTCHAIAH,
AGED ABOUT 65 YEARS,
R/O MARALIGA VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.

14. THAMMAIAH. G. H.
S/O HONNAPPA, AGED ABOUT 43 YEARS,
R/O. GUDIDODDI VILLAGE, MARALIGA

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DHAKLE, KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571428.
&RESPONDENTS
(BY SRI.G.V.CHANDRASHEKAR, SR.COUNSEL FOR
MS.APEKSHA.D, ADVOCATE FOR C/R1-4;
SMT.H.R.ANITHA, HCGP FOR R7-9;
V/O DTD 27/06/2022 R10-14 ARE D/W)

THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 18.04.2022 IS MISC.CASE NO.71
OF 2020 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, MANDYA TO THE EXTENT OF PASSING
THE ORDER HOLDING THAT IT IS NECESSARY TO
DISPOSE OF IA II BEFORE GRANTING LEAVE, AS PER
ANNEXURE-A.

THIS
PETITION
HAVING
BEEN
HEARD
AND
RESERVED FOR ORDERS ON 07.07.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:

The captioned writ petition is filed by defendants

questioning the order of the Court below passed on

I.A.No.II under Section 94(d)(e) read with Order LX

Rule 1 and Section 151 of CPC seeking appointment of

receiver to manage the financial affairs, assets of

defendant No.2-Trust.

The plaintiffs-respondents 1 to 4 herein

have instituted a scheme suit under Section 92 of CPC

against the petitioner 1 and petitioner No.2-Trust. In

the suit, respondents 1 to 4 have sought prayer to

remove the present office bearers of the Trust namely

petitioners 2 to 9 and 10 to 33 and to form a scheme

and appoint a fresh committee and consequently,

sought for a direction to petitioners 2 to 9 to submit

accounts from 13.9.2011 to till the date of filing of the

suit.

On receipt of notice, the present petitioners

appeared and filed objections to I.A.No.1. The

present petitioners have also tendered objections to

the application filed in I.A.No.2 seeking appointment

of receiver.

The present petitioners approached this

Court assailing the order dated 24.8.2021 and

7.9.2021 by filing a writ petition in WP.20158/2021.

One of the main contentions urged before the Co-

ordinate Bench of this Court was that the district

Court before whom a scheme suit is filed cannot be

entertained before adjudicating the application filed

under Section 92 seeking leave to prosecute the

scheme suit. The Co-Ordinate Bench of this Court

vide order 4.12.2021 disposed of the writ petition

thereby directing the District Court to examine as to

whether the application filed in I.A.No.II can be

decided before granting leave.

Pursuant to the order passed by the Co-

ordinate Bench of this Court, the District Court has

taken up I.A.No.II for hearing. The Court below

pursuant

disposal

the

writ

petition

W.P.No.20158/2021 has allowed the application filed

in I.A.No.II and thereby appointed the Tahsildar as a

receiver.

The said order is questioned by the

petitioners, who are respondents in Miscellaneous

proceedings bearing Misc.No.71/2020.

Sri.D.R.

Ravishankar,

learned

Senior

Counsel appearing for the present petitioners would

vehemently argue and contend that under Section 92

of CPC, leave of the Court is a pre-condition for

institution of suit against public trust. Therefore, he

would contend that unless the Court decides the leave

application, the Court has no jurisdiction to pass any

orders. He would further submit that even while

granting leave, the Court has to be satisfied prima

facie the allegations made in the plaint whether leave

is to be granted or not. He would vehemently argue

and contend that the Court below erred in deferring

consideration of the application seeking leave and

therefore, he would contend that the order under

challenge is illegal and therefore, the same is not

sustainable.

Referring to provisions of Order LX

Rule 2 of CPC, he would contend that if there is no

leave then there is no suit and therefore, Court lacks

jurisdiction in entertaining any applications till Court

decides

application

pending

seeking

leave.

Referring to Rule 17 of Civil Rules of Practice, he

would contend that it mandates proper institution of

suit . He would also refer to Section 94(d) of CPC and

contend that Section 94 clearly indicates that to

entertain supplementary proceedings, the Court can

pass appropriate orders to prevent the ends of justice

from being defeated, if it is so prescribed.

To buttress his arguments, he has placed

reliance on the judgment rendered by this Court in the

case

Sampkhand

Mandal

Panchayath

.vs.

Kusumakara Vishnu Kodiya¹ ILR 2008 KAR 2378.

Taking this Court through paragraph 5, he would

1 ILR 2008 KAR 2378

contend that there are specific provisions contained in

the Code, which contemplates filing of suit for various

reliefs. He would contend that Co-Ordinate Bench in

the above cited judgment has clearly held that Section

94 of CPC which relates to supplemental proceedings

also does not enable

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