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TMI Blog1984 (2) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of Sanatanist Hindus. He declared the properties as trust properties including the buildings and land mentioned above and thereafter he started looking after the trust property, which was a public trust of a charitable and religious nature, as a manager as the properties vested in the Idol. Thus, the beneficial interest of the trust vested in an uncertain fluctuating body of persons answering to a particular description, namely, Sanatanist Hindus and the temple where where the Idol was installed came to be known as Badri Bhagat Jhandewalan Mata Devi Temple. Subsequently, some more idols were installed in the said temple and buildings constructed around it. After his death in or about 1898 his only son Ramji Dass Tandon constructed a Pathshala named Sanatan Dharam Sanskrit Vidyashala (Registered) and the same was affiliated to Banaras Hindu University. The said Pathshala was constructed with public funds and the offerings made by the devotees at the temple. Still later after the death of Ramji Dass Tandon in 1936, his son Shyam Sunder took over the management and unkeep of the temple and the estate attached to it. In 1944 Shyam Sunder with a view to reiterate his dedicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled for the trust. Some other reliefs have also been claimed in terms of section 92 of the Code. (2) Simultaneously with the institution of the suit, the plaintiffs moved Civil Rule 4/82 for permission to institute a suit against the defendants in a representative capacity under section 92 of the Code. D. R. Khanna, J., made the following order thereon : Subject to just exceptions, the permission to sue under section 92 C.P.C. is granted. Suit be registered. Summons to the defendants for 10-11-1982. (3) 1.A. 383/83 has been made by some of the contesting defendants under Vii, Rule Ii read with section 151 of the Code. It is contended that the plaint is liable to be rejected under Order Vii, Rule Ii because : , (i) there is no legal, valid and unconditional permission of the Court to institute the suit as contemplated in section 92 Civil Procedure Code . ; (ii) that the suit has been instituted by the present trustees for the benefit of Yogeshwar Attrey,, defendant No. 22 and his associates who have set up a bogus society called Durga Bhajan Mandal, padri Bhagat Jhandewalan Temple Development Society with a view to usurp the temple and properties of the trust as also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at section 92(1) does not provide for the grant of interim leave to the plaintiffs. What it contemplates is only the grant of leave and as a corollary the refusal of leave. (6) While I am in absolute agreement with the contention of the learned counsel for the defendants that the leave of the Court as contemplated in Section 92 must not be provisional or interim, I do not think that the leave granted by my learned brother Khanna, J. in this case suffers from any such infirmity. Surely, the addition of the words subject to just exceptions cannot be interpreted as implying that the leave is conditional or it is vitiated by any reservation which may render the leave provisional or interim in nature. These words, to my mind, have been added to the order ex abundanti cauatela (i.e. by way of abundant (caution) to specifically reserve the rights of the defendants to contest the suit on any valid and legal ground available to them. It is true that even without the use of this expression it was open to the defendants to contest the suit and raise any legal or actual plea which would non-suit the plaintiffs. They could also show that the suit as constituted was not maintainable. Notwit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity for the benefit of the trust and the beneficiaries under the trust as a whole. However, the instant suit has been instituted by the plaintiffs to vindicate the personal rights of defendants 21 and 22 against whom defendants I and 2 have earlier instituted a suit being suit No. 447/82 for rendition of accounts and permanent injunction restraining them from interfering with the management and control of the trust properties by defendants I and 2 herein. It is pointed out defendant No. 22 and his associates had set up a bogus society under the name and style of defendant No. 21 but ultimately they dissolved the same by unanimous resolution. So, the present suit has, in fact, been instituted to support and secure the personal and individual right of third persons, viz., defendants 21 to 32 and their colleagues because the plaintiffs belong to their group and are their associates. This contention is sought to be brought home by alluding to some of the allegations made in the plaint as also in 1.A. 3730/82 under Order Xxxix Rule 7, Order Xl Rule I and Order Xxvi Rule 9 etc. for appointment of a Receiver and taking into possession of the records and properties of the trust from who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also reference to suit No. 447/82 instituted by defendants I 2 against defendants 21 and 22. However, the plaintiffs have clearly averred that defendant No. I was mis-appropriating considerable amount of donations and offerings in cash and kind and consequentially the plaintiffs were left with no other alternative but to serve him with a show-cause notice dated 3rd March 1982. It is further stated that defendant No. I in conspiracy with other defendants, viz., members of defendant No. I is guilty of mis-appropriation of funds and breach of trust and even the account books relating to the temple and the trust properties have been concealed before the filing of the suit. Moreover, it is pointed out that some of the trustees are not followers of Sanatan Dharam and as such they can hardly serve the purpose and the object of the trust. The plaintiffs have made an allegation even against defendants 21 and 22 saying that there is virtual scramble for power and control over the temple and the trust properties and an open conflict has broken out between the rival groups who claim to be the trustees with the result that there is total mis-management of the public trust and mis-appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be real and substantial and not merely remote and potential, Thus, according to the defendants, the plaint does not disclose any real or existing interest of the plaintiffs in the religious and charitable endowment in question. Reliance in this connection has been placed on T.R. Ramachandra Iyer and another v. Ponniath Akathuthu Parameswaran Hunbu and others, (1919) 50 IC 693, which is a Full Bench decision of the Madras High Court, Vaidyanatha Ayyar and another v. Swaminatha Ayyar and another Air 1924 Pc 221 and Mahan. Harnam Singh v. Gurdial Singh and another, [1967]2SCR739 . in the first of these cases, the question arose whether the plaintiff Shri T.R. Ramachandra lyer, who was a leading practitioner of Madras High Court and was residing in Madras had an interest in a temple which was situated in Tellicherry which would entitle him to bring a suit under section 92 Civil Procedure Code . The said temple was an ancient temple of some celebrity and was dedicated to the deity Sri Rama. The plaintiff was a Brahmin by caste and it appeared that when on one or two occasions in the practice of his profession he went to Tellicherry, he attended that temple and worshipped there. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips of Privy Council quoted with approval the foregoing observations of Sir John Wallis. The Supreme Court agreed with the view expressed by the Privy Council in Vaidyanatha Ayyar's case (supra) in Mahant Harnam Singh's case. It is thus crystal clear that the interest contemplated by section 92 must be a substantial and existing interest and not just a sentimental or a remote interest. It may be, however, pertinent to note that all the three above mentioned cases are clearly distinguishable on facts. As already stated that the interest of Ramachandra Iyer was by and large a contingent and potential interest which primarily depended on his professional visits to Tellicherry. It was not his case that even though he was a resident of Madras he was resorting to the ancient temple of Tellicherry as a regular worshipper or a devotee. In Vaidyanatha Ayyar's case, the plaintiffs were descendants although only in female lines of the founder of chatram and it was held that the said fact gave them an interest in the proper administration of the trust sufficient to enable them to maintain the suit although they themselves may never find it necessary to use the chatram as a rest-ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch each of the plaintiffs has in the endowment in question. In particular, they plead that they have been actively associated with the worship at the temple of Mata Devi, Jhandewalan and they have been making offerings to the Deity. Further, Anil Kumar Mehra, plaintiff No. 3, wants to add that he is residing in a part of the estate of the temple wherein he has been given free accommodation because of his blood relationship with the author of the trust. According to him, his paternal great grandmother was a real sister of late Shri Shyam Sunder, who had declared the trust by Memorandum of Association. (15) This application is vehemently opposed by the learned counsel for the contesting defendants, who has canvassed with all the vehemence at his command that provisions of Order Vii, Rule 11 being mandatory in nature, the Court has no option in the matter but to reject the plaint. In other words, it is urged that the Court has no jurisdiction to permit amendment of a plaint which is liable to be rejected for non-disclosure of a cause of action. Reliance in this context has been placed on certain reported decisions of this Court in which a learned Judge (Sultan Singh, J.) has expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... City v. Registrar of Trade Marks, Bombay 1952(54) Plr 176, Maghi Mal v. Sat Pal 1979(2) Rcr 265, Pyare Lal v. Hari Singh 1980(1) Rcr 657 and Smt. Jaswant Kaur alias Amarjit Kaur v. Inder Ram 1980(2) Rcr 545, in this context. However, all these cases were distinguished on facts and eventually the eviction petition was rejected as not disclosing a cause of action. This view was reiterated by his Lordship in Edwin Brave v. Hari Chand, XXI. (1982) Dlt 209. His Lordship noticed some more judicial decisions on the question of amendment of tie plaint but adhered to his earlier view that as Rules 1 and 11 Order Vii of the Code are mandatory and as the eviction application does not contain the facts, Constituting the cause of action, the same is liable to be rejected and amendment cannot be allowed. (19) With great respect, I am unable to subscribe to the view taken by my learned brother both on principle and judicial authority. In view of the clear and explicit language of Order Vii Rule 11, there can be no two opinions that inadequacy of pleadings sufficient to make out a cause of action entails rejection of the plaint under clause (a) thereof. It is equally clear that the said rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its short-comings, has really become a good cause of action............Defective pleadings are generally curable if the cause of action sought to be brought out was not authentic completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. (21) Pertinently this authority was noticed by Sultan Singh, J. in Edwin Brave v. Hari Chand (supra) but he extracted only the words Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. However, further observation of the Supreme Court tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the statute. In Colquhoun v. Brooks (1889) 14 Ac 493, Lord Herschell said : IT is beyond dispute, too, that we are entitled, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act. (24) In other words, a statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statute. Hence, if the provisions of Order Vii, Rule 11 are considered in isolation it would manifestly defeat the very object of the provisions contained in Order VI, Rule 17 by making it meaningless and ineffective. In the oft-quoted words of Bose, J. : A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends ; not a penal enactment for punishment and penalties ; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oversight or some mistake the plaintiff failed to make one of the averments than in that case the plaint must be dismissed and the plaintiff could not apply for an amendment and make the necessary amendment. (27) Similarly in Inayatulla v. Madari and others AIR1930All474 , it was held by a Division Bench that : IT seems to us that the Courts below had jurisdiction to entertain the application for amendment. Order VI, Rule 17 gives ample power to the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as it may seem just. There can be no doubt that on the pleadings both the parties had understood what the plaintiff wanted to establish, and if there was any ambiguity he might well have been allowed to cure it on payment of costs. (28) Reference in this context may also be made to Gurumaymum Prahlad Sharma and another v. Hidangmayum Goku Jananda Sharma Air 1963 Man 43. V.B. Raja's case 1982 Rlr 650 and a case AIR1984Delhi32 . In V.B. Raja's case (supra) an objection was taken in the application for leave to defend (in a case falling under clause (e) of the proviso to section 14(1) read with section ?5-B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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