ASHIM KUMAR BANERJEE, J. - (1.) THE appellants filed a suit against the respondent in relation to a Public Charitable Trust known as Rai Soorejmull Jhunjhunwala Bahadur's Charitable Fund/Trust. In relation to the management of the said Trust, suit was filed in 1970 that stood disposed of by decree dated December 3, 1979 wherein parties to the said suit filed a Terms of Settlement; Court accepted the terms and decreed accordingly. By virtue of the decree one Jagadish Prasad became the principal trustee being the eldest male member of the family as claimed by the appellants. Jagadish died on January 20, 2000. The appellant No. 1 claiming to be the eldest male descendant in the family was claiming the post of principal trustee that the respondents denied. Appellant filed the suit against the respondents inter-alia claiming for a declaration, he was the principal trustee and the respondents No. 1 and 2 ceased to be the trustee by virtue of their resignation. In the alternative, they should be removed from the post of trustee. The appellants alleged, the respondent No. 1 and 2 misappropriated the funds of the Trust whereas the respondent No. 4 could not have been the trustee of the Trust or the principal trustee thereof. Reading of the plaint would depict, the plaintiffs in the suit never claimed the same being instituted under Section 92 of the Code of Civil Procedure. At the instance of the plaintiffs, the learned interlocutory Judge passed orders giving interim protection in the aid of the suit. The respondents made an application for dismissal of the suit alleging, the plaint did not disclose any cause of action. The application was presumably under Order VII rule 11 of the Code of Civil Procedure. The respondents also prayed, the suit could not have been initiated under Section 92 and the leave, if any, granted, should be revoked and/or cancelled. The learned single Judge by judgment and order dated October 6, 2010 appearing at pages 423-432 of the paper book allowed the said application and dismissed the suit. His Lordship observed, the prayers made in the plaint were nothing but vindication of personal right that could not come within the scope of Section 92. However, while making such observation His Lordship observed as follows: "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 reliefs which do not come within the purview of Section 92. His Lordship concluded the judgment by observing as follows: "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. I am of the view that the suit is also bad for misjoinder of causes of action which cannot be spilted for a proper trial by reason of the fact that 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 XI of the CPC." Being aggrieved, the appellants preferred the instant appeal that we heard on the above mentioned dates.
(2.) MR . Jishnu Saha learned counsel appearing for the appellants placed Section 92 of the Code of Civil Procedure and contended, once the learned Judge observed, the plaint also disclosed cause of action with regard to Section 92 His Lordship should not have dismissed the suit. He distinguished two Supreme Court decisions that the learned Single Judge relied upon the case reported in All India Reporter 1972 Volume-59 Supreme Court Page-246 (Harendra Nath Bhattacharya and others Vs Kaliram Das) and 2008 Volume 4 Supreme Court Cases Page-115 (Vidyodaya Trust Vs Mohan Prasad R and Others). Drawing our attention to various paragraphs of the said decisions, Mr. Saha would contend, the facts would completely differ, particularly when, the learned Judge came to a conclusion, plaint did disclose cause of action akin to Section 92. Mr. Saha also distinguished the Apex Court decision in the case of Sugra Bibi Vs. Hazi Kummu Mia reported in 1969 All India Reporter Volume-56 Supreme Court page-884 cited by the respondent before His Lordship. He would contend, the facts would differ however; the proposition of law would rather support the appellant. He particularly relied on paragraph 5, 7, 8 and 9 to support his contention. Mr. Saha lastly contended, learned Judge held the suit bad for mis- joinder of cause of action that did not have any legal support, rather the provisions of Order I Rule 1 and 2 would ex facie suggest otherwise. Mr. Saha relied on the following decisions: 1. Swami Parmatmanand Saraswati and another Vs Ramji Tripathi and another reported in All India Reporter 1974 Supreme Court page-2141. 2. Pragdasji Guru Bhagwandasji Vs. Ishwarlalthai Narsibhai and others reported in 1952 All India Reporter Supreme Court page-143. 3. R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others reported in 1991 Volume-1 Supreme Court Cases page-48. Per contra, Mr. P.K. Das learned senior counsel being assisted by Mr. Swarnendu Ghosh would contend, Section 92(2) would have a pre- requisite to maintain a suit under the said provision. The plaint, on a combined reading, would not support presence of those requisites. Combined reading of the plaint would ex facie suggest a dispute inter- se the trustees that could not be brought within the ambit of Section 92. He referred to the observation of B.K. Mukherjee in his Tagore's law lecture on Section 92 in this regard. Mr. Das once again placed the prayers of the plaint to show, the principal grievance of the plaintiffs was against the trustees vindicating the personal right that would not in any way affect the public interest or could not inspire the members of the public to join that would be the prerequisite of Section 92. Resuming his argument on the next day Mr. Das would contend, the plaintiffs could file a suit of the like nature under Section 14 of the Religious Endowments Act 1963 where any person interested in any religious establishment may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court, the trustees, for any misfeasance or breach of trust or neglect of duty. He also relied upon the commentary of V.K. Varadachari on Hindu Religious and Charitable Endowments to show the prerequisites of Section 92 and the suits that would be outside the scope of the said provision.
(3.) MR . Das relied on the following decisions: 1. Indu Bhusan Sen and another Vs Kiron Chandra Sen and Others reported in All India Reporter 1940 Calcutta page-36. 2. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others reported in 1989 Supplementary 2 Volume-2 Supreme Court Cases Page-356. 3. Mahesh Tulswan Vs. Rajendra Kumar Banka reported in 2011 Volume-2 Calcutta High Court Notes page-169. 4. Pragdasji Guru Bhagwandasji Vs. Ishwarlalthai Narsibhai and others reported in 1952 All India Reporter Supreme Court page-143. 5. R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others reported in 1991 Volume-1 Supreme Court Cases page-48. ;