w w w . L a w y e r S e r v i c e s . i n

Sri Manavala Mamunigal Charities at Thiruthangal rep. through its President & Others v/s S. Seetharaman & Others

    C.R.P. (PD)(MD). No. 161 of 2011
    Decided On, 29 January 2013
    At, Before the Madurai Bench of Madras High Court
    For the Petitioners: G.R. Swaminathan, Advocate. For the Respondents: R1, Dismissed vide order, R2 To R9, R. Aravinthan, Advocate.

Judgment Text
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 21.10.2010 passed by the learned Principal District Judge, Virudhunagar District, at Srivilliputhur in I.A.No.19 of 2010 in O.S.No.139 of 2008 on the file of the Principal District Court, Virudhunagar District.)

1. The Civil Revision Petition arises out of dismissal of an application under Order 7 Rule 11 C.P.C.

2. Heard Mr.G.R.Swaminathan, learned counsel for the petitioners and Mr.R.Aravinthan, learned counsel for the respondents 2 to 8.

3. Two original petitions were filed in respect of a Trust known as 'Sri Manavala Mamunigal Charities' at Thiruthangal, in trust O.P.Nos.1 and 7 of 2008. In the said original petitions, an application was taken out for impleadment. The application for impleading was allowed and the same came to be challenged in a Civil Revision Petition before me in C.R.P.No.1419 of 2008.

4. Finding that the Trust in question is a Public Trust and not a Private Trust (irrespective of whether charitable or religious in nature), I passed an order, on 12.08.2008, under Article 227 of the Constitution of India, directing the Court below to strike off O.P.No.1 of 2008, from the register, on the short ground that the provisions of the Indian Trust Act, 1882, would not apply to Public Trusts. I also gave liberty to the parties to work out their remedies in terms of Section 92 of the Code of Civil Procedure.

5. In pursuance of the said order, the respondents in this Civil Revision Petition appear to have filed a suit in O.S.No.139 of 2008, on the file of the Principal District Court, Srivilliputhur, Virudhunagar District, under Section 92 CPC for framing a Scheme. It is needless to point out that the suit was instituted after obtaining leave in terms of Section 92 CPC.

6. Pleadings were completed and the suit was ripe for trial. At that time, the Trust and the Trustees filed an application in I.A.No.19 of 2010 under Order 7 Rule 11 CPC for the rejection of the plaint. Finding that the liberty given by me at the time of disposal of the Civil Revision Petition stood in the way of rejection of the plaint, the Principal District Court dismissed the application, by an order, dated 21.10.2010. Aggrieved by the refusal of the Court below to reject the plaint, the petitioners, who are the Trust and Trustees have come up with the above Civil Revision Petition.

7. Mr.G.R.Swaminathan, learned counsel appearing for the petitioners raised the following contentions:-

i. The observation made by me in C.R.P.No.1419 of 2008, dated 12.08.2008, cannot be taken to mean that the question of applicability of Section 92 C.P.C. is sealed once for all.

ii. That even as per the plaint averments and the recitals contained in the Trust deed filed as plaint document No.1, the Trust in question is a Specific Endowment, to which, the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959, would apply.

iii. That in an appeal proceeding, the Joint Commissioner had already held the very same Trust to be a Specific Endowment within the meaning of Section 6(16) of the Tamil Nadu Hindu Religious and Charitable Endowment Act,1959.

iv. and that even in the first appeal, a Division Bench of this Court had held that a civil suit in respect of this Trust was not maintainable.

8. I have gone through the plaint. The copy of the Trust Deed is not made available before me. The plaint averments give an indication that the villagers of certain villages in and around Sivakasi and the Villagers of Thiruthangal are the beneficiaries of the Trust. Specific Endowment in terms of Section 6(16) of the Act has some characteristics. Whether the petitioner Trust specifies these characteristics or not, has to be seen at the time of trial. In other words, without averments, the nature of the Trust cannot be found out.

9. Insofar as the order of the Joint Commissioner, dated 07.12.1955, by which, he had held the Trust to be a Specific Endowment, is concerned, it is only a piece of evidence. The order itself should be first marked before the Civil Court, as a document, on the side of the defendants. It is needless to point out that an application for rejection of plaint should be tested only on the averments contained in the plaint and the plaint documents and not on the basis of the written statement or the documents relied upon by the defendants.

10. Insofar as my order in the previous Civil Revision Petition is concerned, it is to be pointed out that I did not go into the question, whether the Trust is purely a religious Trust or a specific endowment. I did not at all examine the question of applicability of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act,1959. If the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act,1959, applies to a Trust in question, then Section 5(e) of the Act is a bar to the invocation of Section 92 CPC. Therefore, I should make it clear that my order in Civil Revision Petition No.1419 of 2008 prompting the parties to go under Section 92 CPC is not actually a bar for a trial Court to go into the question as to whether the Trust is a Specific Endowment, whether the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act,1959, act applies to the Trust and whether a suit under Section 92 is maintainable or not?.

11. But, the trial Court would be able to go into the above questions only at the time of trial except in cases where there is an admission in the plaint that it is a Religious Endowment or a Specific Endowment. I do not find any such admission in the plaint. Therefore, though the rejection of the plaint by the trial Court is on the wrong ground that my order in the Civil Revision Petition stands in its way, I do not think that the ultimate conclusion suffers from any infirmity.

12. Insofar as the judgment of the Division Bench in A.No.148 of 1968, dated 18.12.1973 is concerned, the Division Bench held that the suit is not maintainable only in terms of Section 108 of the Act. Section 108 of the Act is a bar, for the jurisdiction of the Civil Court except by way of a statutory suit. But, the case on hand, raises the question as to the very application of the provisions of Section 92 of the Code. By virtue of Section 5(e), in any case, even a judgment, if it is interparties is a piece of evidence to be marked as a document, so that, the issue is resolved after a full-fledged trial. Therefore, I am of the view that the questions relating to the nature of the Trust and the application of Section 92 CPC have to be tried by the trial Court, without holding my judgment in Civil Revi

Please Login To View The Full Judgment!
sion Petition No.1419 of 2008, as a bar. 13. It is made clear that the trial Court should certainly frame an issue about the nature of the Trust as to whether, it is a Specific Endowment and as to whether Section 5(e) of the Act is a bar for the maintainability of the suit under Section 92 CPC along with all other issues. The Court below shall complete the trial within a period of three months from the date of receipt of a copy of this order. The trial Court is also directed not to be influenced by any observations contained in any order in the previous proceedings and the order impugned in the Civil Revision Petition. 14. In view of the above, this Civil Revision Petition is dismissed. There will be no order as to costs.