MANU/WB/0953/2010

Equivalent Citation: 2011(2)C HN169, 2011(1)C LJ(C AL)257

IN THE HIGH COURT OF CALCUTTA

G.A. Nos. 1794 and 2462 of 2002 and 3667 of 2008 and C.S. No. 202 of 2002
Decided On: 06.10.2010
Appellants: Mahesh Tulswan
Vs.
Respondent: Rajendra Kumar Banka
Hon'ble Judges/Coram:
K.J. Sengupta, J.
Case Note:
Civil - Maintainability - Section 92 of Civil Procedure Code, 1908 (C.P.C.) -
Plaintiff filed suit for declared that Plaintiff No. 1 was principal trustee and
Defendant Nos. 1 and 2 had with their resignation ceased to be trustees of
Fund/Trust - However, suit as being not maintainable or barred by law for
not disclosing any cause of action - Hence, this Application - Whether, suit
filed by Plaintiff was maintainable - Held, no relief under Section 92 of
C.P.C. was asked with reasonable degree of seriousness against any of
Defendants qua trustees - Moreover, it was true relief for furnishing
accounts which comes within purview of Section 92(2)(d) of C.P.C. had
been asked for against first and second Defendants - Further, suit was
brought in such manner and cause of action had been pleaded in such
complex mixing that it was difficult to segregate allegation contained in
plaint for separate trial for other relief's which did not come within purview
of Section 92 of C.P.C. - Furthermore, suit which was filed for obtaining
relief could not be maintained and suit was also bad for misjoinder of
causes of action which could not be splitted for proper trial by reason of
fact that same were adversely inconsistent and contradictory - Therefore, if
suit was not essentially within purview of Section 92 of C.P.C. there was no
disclosure of cause of action - Thus, suit was barred under Order 7 Rule 11
of C. P. C. and plaint was rejected on ground of non-disclosure of cause of
action as well as misjoinder of cause of action as whole - Hence, suit filed
by Plaintiff was not maintainable - Application Allowed.Ratio
Decidendi"Suit shall not be maintainable on ground of non-disclosure and
misjoinder of cause of action."
JUDGMENT
K.J. Sengupta, J.
1. The above application has been taken out by the 1st, 2nd and 3rd Defendants for
rejection and/or taking the plaint off the file and/or dismissal of the suit as being not
maintainable or barred by law for not disclosing any cause of action. Alternatively
and/or in any event the name of the Plaintiff No. 1 be deleted and/or expunged
and/or struck off from the records and the suit at the instance of the Plaintiff No. 1 be
dismissed and/or be rejected. Leave, if any, to file the suit under Section 92 of the
Code of Civil Procedure be revoked and/or cancelled and the suit also be dismissed
on that ground and/or the plaint be taken off the file or be rejected. This application
is opposed by the Defendants by filing affidavit. However, it is well settled that a
demurer action is always examined reading the plaint and plaint alone, and No.

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affidavit for this purpose is required.
2. Mr. Das learned Senior Counsel while supporting this application submits that on
reading the plaint as a whole together with the prayer portion it will appear the suit
is not really intended to get relief as required under Section 92 of the Code of Civil
Procedure (hereinafter Code) as the suit is filed basically for vindication of individual
right with little element of public grievance. It is settled that unless the suit is filed to
obtain relief for the redressal of the public grievance, in other words if it is not
representative character the same cannot be viewed under Section 92 of the Code.
The suit under Section 92 of the Code is legally accepted as a representative
character so leave of the Court under Order 1 Rule 8 is also required to be obtained.
If the suit is not within the purview of Section 92 leave obtained there under, is
unnecessary. Hence leave granted under the provision of the said section of this Code
shall be revoked, the suit should not be allowed to be proceeded with as it would be
a case as if there is No. disclosure of cause of action as such. In support of his
contention he has relied on the following decisions:
MANU/SC/7227/2008 : AIR 2008 SC 1633, MANU/SC/0239/1968 : AIR 1969
SC 884, MANU/SC/0023/1974 : AIR 1974 SC 2141, MANU/SC/0018/1965 :
AIR 1966 SC 878, MANU/WB/0101/1939 : AIR 1940 Cal 376,1996 (3) CHN
132, MANU/SC/0358/1989 : 1989 Supp. (2) SCC 356 and AIR 1981 SC 221.
3 . Mr. Jishnu Saha learned Advocate appearing for the Plaintiff while opposing this
application submits that the leave granted under Section 92 should not be revoked as
there is No. ground made out in the application for such relief nor any ground could
be found for rejecting the plaint. He contends that granting relief under Section 92 is
an administrative nature and tacit permission satisfies the requirement of filing of the
suit under above provision. In this context he seeks reliance on a judgment of Punjab
and Haryana High Court reported in AIR 1982 P & H 137.
4. He submits that No. notice is required to be given before granting any leave and
non-service of notice cannot be ground for rejecting the plaint. He has relied on a
Supreme Court decision reported in MANU/SC/0440/2005 : AIR 2005 SC 3081 in this
regard.
5 . He has drawn my attention to the relevant portion of the plaint namely the
paragraphs 7 and 8 in support of his contention that the suit is clearly within the
purview of Section 92 of the Code of Civil Procedure it will also appear from
statement made in paragraphs 25, 26 and 27 that the allegations of mismanagement
and misappropriation of the religious charitable trust's property are made out. He
submits that the plaint has to be read as a whole in order to understand the scope
there of.
6. I have carefully considered the contention of the learned Counsel for the parties. I
think Mr. Saha is right in his submission that while considering this application the
plaint alone has to be read. On careful reading of the pliant it appears to me the
cause of actions are two folds; one of them is that despite becoming a principal
trustee, in view of being male member in terms of the deed of trust the Defendants
and each of them are denying his status. This grievance can be deduced from
paragraphs 18, 19 of the plaint. Another is that Defendant Nos. 1 and 2 have not only
refused to acknowledge the first Plaintiff as the principal trustee, but in contravention
of the provisions of said trust deed the Defendant No. 1 proceeded to declare himself
as principal trustee and Defendant No. 2 also purported to declare himself trustee. It
is the contention of the Plaintiff that as per the provisions of 1928 trust deed only
eldest male member of the family is entitled to become the principal trustee of the

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said fund and/or trust as such the question of Defendant No. 1 becoming the
principal trustee of the said trust or fund could and did not and does not and cannot
arise. Consequently the question of either the Defendant No. 1 or the Defendant Nos.
1 and 2 appointing the Defendant No. 3 as the trustee of the said fund and /or trust
could and did not and does not and cannot arise.
7 . The purported appointment of the Defendant No. 3 as trustee by the Defendant
Nos. 1 and 2 is also void and is of No. effect. Thus it is clear from the aforesaid
controversy the Defendant No. 3 has not been accepted as a trustee and his
appointment is questioned by the Plaintiff No. 1 who is seeking to establish himself
as principal trustee.
8. On careful perusal and reading of the said contention, it clearly discloses cause of
action for vindicating individual right namely to establish himself to be the principal
trustee on one hand and on the other hand he refuses to accept the Defendant No. 3
as being legally appointed trustee. The other portion of the plaint features allegations
of misappropriation of the trust fund mal-administration and mismanagement and
improper maintenance of the assets and property of the trust. It is also alleged that
the other Plaintiffs namely 2 and 3 are not the trustees rather member of the public
who are beneficiary of the said trust estate. As such they are interested to file the
suit.
9 . In the context of the aforesaid summarized portion of the plaint the following
relief's are claimed:
(a) Declaration that the Plaintiff No. 1 is the principal trustee of the Rai
Soorajmull Jhunjhunwala Bahadur's Charitable Fund/Trust;
(b) Declaration that the Defendant Nos. 1 and 2 have with their resignation
ceased to be trustees of the said Fund/Trust;
(c) Alternatively, a decree directing the removal of the Defendant Nos. 1 and
2 as the trustees of the said Fund/Trust;
(d) Declaration that the purported appointment of the Defendant No. 1 as
principal trustee and of the Defendant No. 3 as trustee of the said Fund/
Trust is void and of No. effect whatsoever;
(e) Decree directing the Defendant Nos. 1 and 2 to furnish detailed and full
particulars and accounts of all their dealings and transactions with the funds,
assets and properties of the said Fund/Trust since the death of Jagdish
Prasad Tulshan on 20th January, 2000 and a decree directing enquiry into the
same;
(f) Decree directing the Defendant Nos. 1 and 2 to pay to the said Fund/
Trust all monies that may be found to be due and payable by them upon
accounts being stated and upon enquiry being made into the same;
(g) Declaration that the Defendant No. 4 can have and has No. right
whatsoever to trusteeship of the said Fund/Trust and could not have and has
not become either a trustee or the principal trustee of the said Fund/ Trust;
(h) Receiver;
(i) Injunction;
(j) Attachment;

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 (k) Costs;
(I) Further and other relief's.
10. In view of above analysis I am unable to accept the contention of Mr. Saha that
this suit is brought under Section 92 of Code in its entirety. Principal relief's viz.
prayers (a), (b) and (d) of the plaint are clearly intended to establish individual right
and to resist individual rival claim in relation to the cause of action summarized as
above. In a considerably old decision of this Court in case of Laxmi Devi v. Hansraj
Gupta, reported in MANU/WB/0101/1939 : AIR 1940 Cal 376, as rightly argued by
Mr. Das at page 377 legal proposition is explained amongst other as follows:
Section 92 applies only where the suit brought is representative in its nature,
that is to say, where the suit is brought by two or more persons as
representing the general, public in order to secure the proper administration
of a public trust: 45, Mad 113, 33 Cal 789. It seems to me basing on these
authorities it can be concluded that a suit brought by trustees on their own
behalf and in the discharge of their own functions as trustees, not being a
representative suit, is outside the scope of Section 92.
1 1 . The Supreme Court in case of Vidyodaya Trust v. Mohan Prasad R and Ors.
reported in MANU/SC/7227/2008 : AIR 2008 SC 1633, in paragraph 18 observed
following its earlier decision reported in MANU/SC/0023/1974 : AIR 1974 SC 2141:
In the suit against public trusts, if on analysis of the averments contained in
the plaint it transpires that the primary object behind the suit was the
vindication of individual or personal rights of some persons an action under
the provision does not lie. As noted in Swami Parmatmanand's case (supra) a
suit under Section 92, Code of Civil Procedure is a suit of special nature,
while pre-supposes the existence of a public trust of religious or charitable
character. When the Plaintiffs do not sue to vindicate the right of the public
but seek 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, Section 92 has No. application.
12. Another decision of the Supreme Court reported in MANU/SC/0353/1983 : AIR
1984 SC 356, it has been ruled that "a suit under Section 9 of the Code is a suit of
special nature for the protection of public rights in the public trust and charities. The
suit is fundamentally on behalf of the entire body or persons who are interested in
the Trust. It is for the vindication of public rights. A suit whether under Section 9 of
the Code of Civil Procedure or under Order 1 Rule 8 of the Code of Civil Procedure is
represented by large number of persons but for common interest".
1 3 . It is appropriate to note the decision rendered by the Supreme Court in
Parmatmanand Saraswati's case reported in AIR 1974 SC 214, which was later
followed by the same Court as stated above explained that Section 92 is not intended
for vindication of private right.
14. In view of the aforesaid pronouncement of the highest judicial authorities and
other judicial pronouncement it is difficult to accept the contention of Mr. Saha that
the relief's claimed and the cause of action disclosed in the pliant are substantially
within the purview of Section 92 of the Code of Civil Procedure. As rightly urged by
Mr. Das on plain reading of the plaint it cannot be held to be an action wholly or
substantially under Section 92, logically, therefore, the plaint does not disclose cause
of action for maintaining suit under Section 92 of Code of Civil Procedure.

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1 5 . It shall not be understood that entire plaint does not contain allegation as
required under Section 92 of the Code, but No. relief under the said section is asked
with reasonable degree of seriousness against any of the Defendants qua trustees, It
is true the relief for furnishing accounts which comes within the purview of Section
92 Sub-section (2) of Clause (d) of the Code of Civil Procedure has been asked for
against first and second Defendants. But the suit is brought in such a manner and the
cause of action has been pleaded in such complex mixing that it is difficult to
segregate the allegation contained in the plaint for separate trial for the other relief's
which do not come within the purview of Section 92.
16. On consideration of the facts and circumstances of this case in totality I am of
the view that the present suit which is filed for obtaining relief under Section 92 of
the Code of Civil Procedure cannot be maintained. Leave obtained from this Hon'ble
Court is an inappropriate action. Hence leave granted by this Court is revoked.
17. I am of the view that the suit is also bad for misjoinder of causes of action which
cannot be splitted for a proper trial by reason of the fact that the same are adversely
inconsistent and contradictory. As it is already held that if the suit is not essentially
within the purview of Section 92 of the Code of Civil Procedure there is No.
disclosure of cause of action. Hence the suit is barred under Order 7 Rule 11 of the
Code of Civil Procedure.
18. In view of the aforesaid discussion the application succeeds and the plaint is
rejected on the ground of non-disclosure of cause of action as well as the misjoinder
of cause of action as a whole. However there will be No. order as to costs.
Accordingly related interlocutory application stand dismissed. Interim order stands
vacated. However this order will not prevent and prejudice the Plaintiffs or any of
them from bringing appropriate action with same cause of action.

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