Code of Civil Procedure, 1908:
s. 92 – Applicability of – To a suit by a Trust – Suit by Trust for mandatory injuction – Seeking direction against the defendant (sevadaar) to leave the management of the Mandir, building and other properties of the Trust – Trial Court declined to grant mandatory injuction to the defendant, but held that the plaintiff was entitled to rendition of accounts – First appellate Court decreed the suit – During pendency of second appeal, due to death of original defendant impleadment of his representative – High Court held that suit was not maintainable as requirements of s. 92 was not complied with – Appeal to Supreme Court – Held: Section 92 contemplates suit against a Trust – In the present case, the suit having been filed by the Trust, the procedure prescribed under Section 92 would not be applicable – The suit was maintainable and was rightly decreed by First Appellate Court – Trust and Charities. Allowing the appeal, the Court
HELD : 1. Section 92 of CPC contemplates a suit against a Trust either for removing any trustee; appointing new trustee; or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of CPC would not be applicable in a suit by a Trust. Section 92 of CPC confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and not sustainable. [Para 12] [608-A-B]
2. The fact is that the original defendant had been found to be Sevadar as per statement (Ex.P/1) given in the previous suit for permanent injunction. Therefore, legal representative of the original defendant will not have a larger interest than what was vested in the original defendant. The legal representative has been found to be doing service to the Temple as a member of public. The High Court has affirmed the finding that the legal representative could offer his services but he has not proved that he was appointed as Chela of the original defendant. Still further, the decree for rendition of accounts could be executed only against the deceased original defendant, therefore, after his demise, such decree cannot be executed. Therefore, the suit is maintainable and was rightly decreed by the First Appellate Court. [Paras 12 & 13] [608-C-D]
3. The apprehension of the respondent that the amount of compensation can be misused, is not tenable. The appellant is a registered Society. The appellant as a registered Society has statutory obligations. Such apprehension is misconceived and beyond the scope of the present suit and the appeal arising out of such proceedings. [Para 14] [608-E-F]
Bhagwan Dass and Others v. Jairam Dass AIR 1965 P & H 260 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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