- (1.) INSTANT revision petition has been filed under Section 115, C.P.C. against the order dated 02.04.2009 as well as order dated 29.02.2012.
(2.) ACCORDING to facts of the case, the petitioner in this revision petition are trustees/managers of Kushalwadi Trust, Sojat City which was established on 29.04.1937 by one Raghunathmal Singhvi for the purpose of worshipping the Jain Shwetambar and Dada Guru of Jain community. Subsequently, in the year 1976, the Trust was got registered under the Rajasthan Public Trust Act, 1959 (in short, 'the Act of 1959' hereinafter). The suit property is also situated in Sojat and there are various shops which were let out to different tenants out of which for some of the shops eviction proceedings were initiated and some of the cases have already been decided in favour of the Trust and some cases are pending in the Courts of law. Learned counsel for the petitioners invited my attention towards the fact that there were 3 shops of the Trust let out to one Mishri Lal against whom the Trust initiated eviction proceedings. The trial Court allowed the cases and ordered eviction from the shops against which appeals filed by the tenant have also been dismissed. In counter of eviction proceedings said Mishri Lal and his son Om Prakash filed various applications against the Trust as well as against the present trustees and manager. The present suit proceedings triggered by the respondents is also part of their counter with hand in gloves with Mishri Lal and others. The present suit was filed in the year 2010 by respondents No.1 and 2 along with and along with the suit an application under Section 92, C.P.C. was filed on the ground that the property of the Trust is being misused by the present trustees for their personal purpose and trustees are appointed from one family of trustee. It is also pointed out in the suit that properties of the Trust are not being managed properly and consequently the object of Trust is being failed, therefore, it is prayed by plaintiff- respondents that re-appointment of the trustees may be ordered. Earlier also the plaintiff filed an application before the Assistant Devasthan Commissioner but no action was taken against the trustees. The petitioners filed written-statement and denied all the allegations. It is specifically stated in the written-statement that the Trust comes under the purview of Devasthan Department and plaintiffs have already approached the authorities of Devasthan Department for proper management of the Trust, therefore, the present suit is not maintainable. It is also submitted in the written-statement that the Trust has been created only for persons who believe in Jain sect and exclusively Jain Shwetambar sect but the plaintiffs have not specifically pleaded their interest nor they are members or any beneficiary and ground has been raised with regard to mismanagement of the Trust. The plaintiffs filed rejoinder to the reply wherein objection raised by the petitioner-defendants was not specifically replied. After completion of of the pleadings, certain applications were moved by the respondents before the trial Court and, amongst others, one application under Order 1 Rule 8, C.P.C. for publication of fact with regard to institution of the suit against the Trust on the count that any person having interest in the Trust may be impleaded as party in the suit proceedings. Said application was allowed with cost of Rs.2,000/- because the application was filed at belated stage.
(3.) THE plaintiff-respondents filed the present suit under Section 92, C.P.C. for which mandatory requirement is to seek leave of the Court for institution of the suit, therefore, application dated 10.06.2010 was filed by the respondents seeking permission to institute the suit against the petitioners. The petitioners filed reply to the application but the trial Court allowed the said application vide order dated 02.04.2012 and granted permission to institute/continue the suit proceedings on the count that the plaintiffs have stated in the plaint that Trust was established for Hindu/Jain community whereas the stand of petitioners is that the Trust was settled for certain classes of persons who believe in Jainism and that issue can be decided after recording evidence. The trial Court further observed that application of the plaintiffs filed under Order 1 Rule 8, C.P.C. has already been allowed vide order dated 29.02.2012. Learned counsel for the petitioner-defendants is challenging orders dated 02.04.2012 and 29.02.2012 whereby permission has been granted by the trial Court under Section 92, C.P.C. to the respondent-plaintiffs to institute the suit against the Trust. Learned counsel for the petitioners vehemently argued that the respondent-plaintiffs are not even members of the Trust, therefore, while passing aforesaid orders the trial Court has completely ignored the above important aspects of the matter. The grievance of mismanagement of the Trust can be raised by the members of the Trust but, here, in this case, the respondent-plaintiffs are raising ground that they are beneficiaries of the Trust and for such relief a suit under Section 44 of the Act of 1959 is specifically barred. Coupled with specific bar to a suit and proceedings under Section 92/73, C.P.C., a civil suit is barred in respect of matters specifically provided for to be decided under the Act. Learned counsel for the petitioners submits that the plaintiff-respondents have filed an application before the Assistant Devasthan Commissioner for the same relief and without pressing the same they have filed the present suit under Section 92 invoking civil Court's jurisdiction which is specifically barred under Section 73 of the Act of 1959, therefore, the orders impugned deserves to be quashed. ;