Jawahar Singh & Anr. v. Harbhajan Singh

Mr. Gulzar Mohd. Advocate, for the respondent. L.N. MITTAL, J. (ORAL) *** Defendants have filed the instant Revision Petition under Article 227 of the Constitution of India challenging judgment dated

10.08.2009 (Annexure P/4) passed by learned Addl. District Judge, Ludhiana. Respondent Harbhajan Singh filed suit vide plaint (Annexure P/1) alleging inter alia that Preet Nagar Welfare Charitable Committee, Dugri, Ludhiana (hereinafter referred to as the Civil Revision No.7068 of 2009 2 'Committee') was a society registered under the Societies Registration Act, having registration No.759 of 1994-95. One Sucha Singh vide gift deed dated 31.03.1995 gifted 165 sq. yds. land to the Committee for carrying out charities by constructing Dharamshala/Janj Ghar/Community Centre for the welfare of residents of Preet Nagar, Ludhiana. However, in June 2000, defendant No.1 Jawahar Singh got another society with similar name registered as Preet Nagar Welfare Society (hereinafter referred to as the 'Society'). The said Society has been arrayed as defendant No.2 through defendant No.1 Jawahar Singh. The plaintiff's case is that the Society has no right, title or interest in the property of the Committee but the defendants have usurped the property of the Committee. Defendant No.1 is also not maintaining proper accounts of the donations received by the Society. The plaintiff accordingly sought relief that Preet Nagar Welfare Charitable Committee is separate and distinct charitable society from Preet Nagar Welfare Society (defendant No.2). The plaintiff also sought relief of rendition of accounts, mandatory injunction and permanent injunction. Defendants filed application for dismissal of the suit being not maintainable as Section 92 of the Code of Civil Procedure (in short 'CPC') has not been complied with, although the reliefs claimed in the suit fall within the parameters of Section 92 of CPC. Civil Revision No.7068 of 2009 3 Learned Civil Judge(Junior Divn.), Ludhiana vide order dated 11.06.2008 (Annexure P/3) allowed the application filed by defendants holding that the suit falls within the purview of Section 92 CPC but the suit has not been filed in accordance with the provisions of Section 92 CPC. Accordingly the suit was dismissed as not maintainable. However, appeal preferred by the plaintiff against the said order has been allowed by the learned Addl. District Judge, Ludhiana vide impugned judgment dated 10.08.2009 (Annexure P/4) and the suit was remanded to the trial Court for decision in accordance with law. Feeling aggrieved, the defendants have filed the instant Revision Petition. I have heard the learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that since relief of rendition of accounts has also been claimed in the suit, the suit would fall within the purview of Section 92(1)(d) of CPC. It was also pleaded that in the alternative, the suit would fall under residuary clause (h) of Section 92(1) of CPC, which relates to such further or other relief as the nature of the case may require. Reliance has been placed by the counsel for the petitioners in support of his contentions on two judgments of Hon'ble Apex Court in cases Charan Singh and another Vs. Darshan Singh, 1975 Civil Revision No.7068 of 2009 4 (PLR)-262 and Sugra Bibi Vs. Hazi Kummu Mia, 1969 AIR(SC)-

884. On the other hand, learned counsel for the respondent contended that the Committee was already in existence when gift deed was made by Sucha Singh and therefore no trust was created by the gift deed. It was also contended that the plaintiff -respondent is founder member of the Committee and therefore, in his individual capacity, as founder member of the Committee, the plaintiff has locus standi to maintain the instant suit. Learned counsel for the respondent has placed reliance on the judgment of Hon'ble Supreme Court of India in case Kalyan Singh Vs. Smt. Chhoti, 1990- AIR (SC)-396. I have carefully considered the rival contentions. Insofar as the judgment in the case of Kalayan Singh (supra) cited by the counsel for the respondent is concerned, the same is not applicable to the instant case because it pertains to provisions of Order 1 Rule 8 CPC and it does not pertain to Section 92 CPC. The question to be determined is whether the suit falls within the purview of Section 92 CPC or not?. Contention of learned counsel for the petitioners is that since relief of rendition of accounts has also been claimed in the suit, Section 92 CPC would be applicable. On first blush, the contention appears to be attractive. Civil Revision No.7068 of 2009 5 However, on proper scrutiny, the contention cannot be accepted. The plea of the plaintiff in the suit is that defendant No.1 has formed a separate Society in the name of defendant No.2. The plaintiff has not claimed rendition of accounts of the Committee to which land was gifted by Sucha Singh. The plaintiff has alleged that defendant No.1 by forming a separate Society in the name of defendant No.2 has usurped the property of the Committee and therefore, the defendants are liable to render accounts of the amount of the Committee. The matter would have been different if any relief had been sought pertaining to the reconstitution of the Committee or management of the property by the Committee. In the instant case, however, interest of the Committee is sought to be protected from alleged usurper. Consequently Section 92 CPC would not be applicable at all. Judgments in the cases of Charan Singh (Supra) and Sugra Bibi (Supra) relied by the counsel for the petitioners are not applicable because in those cases, it was admitted position that the relief claimed pertained to trust. In the case of Sugra Bibi (supra), there was wakf in favour of public and family members of the founder. The question related to removal of mutwalli and appointment of new trustee. Obviously the said dispute fell under Section 92 CPC. Similarly in the case of Charan Singh (Supra), there was public trust of religious nature. Suit was filed for enforcement of due performance of the duties of the trustee in relation Civil Revision No.7068 of 2009 6 to a particular object of the trust. Section 92 CPC was held applicable. In the instant case, however, the plaintiff has not sought relief relating to enforcement of the trust at the hands of the defendants. On the other hand, the defendants are alleged to be usurpers of the property of the Committee. Consequently Section 92 CPC is not attracted. In view of the aforesaid discussion, I find no ground for setting aside the impugned judgment of the Appellate Court because Section 92 CPC is not applicable to the suit, although for reasons slightly different from those recorded by the Appellate Court. The revision petition is accordingly dismissed. February 22, 2010 vcgarg (L.N. Mittal) JUDGE Civil Revision No.7068 of 2009 7 Civil Revision No.7068 of 2009 8