REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4368 OF 2012 @
SPECIAL LEAVE PETITION (CIVIL) NO.11825 OF 2008
Sinnamani & Anr. … Appellants
Versus
G. Vettivel & Ors. … Respondents
WITH
CIVIL APPEAL NOS. 4372-4386 OF 2012 @
SPECIAL LEAVE PETITION (CIVIL) NO.6283-6297 OF 2008
J U D G M E N T
K.S. Radhakrishnan, J.
Leave granted.
2. These appeals arise out of a common judgment of the High Court of
Madras at Madurai dated 11.9.2007 declining to convert the Trust OP No.96
of 2002 as a civil suit and be tried accordingly.
3. Trust OP No.96 of 2002 was filed by the appellants who were
beneficiaries of six trusts before the Principal District Judge,
Thoothukudi under Sections 61, 62, 65, 66 and 92 of the Trust Act read with
Order VI Rules 1 to 3, 5 to 7 and 26 of the Code of Civil Procedure for the
following reliefs:
“a. To call upon the respondents 1 to 12 to restore the corpus and
accretions gained by the six trusts detailed in the schedule
from the date of their incorporation till the date of
realization.
b. To trace the fissipations effected on the schedule Trusts by the
I defendant and his associate companies.
c. To appoint a receiver for all the properties of the I defendant
and through lifting the corporate veil on the company held by
the I defendant including Mountain Spinning Mills.
d. To trace the fissipations on the Schedule Trusts and bring the
properties and monies to the petitioner’s Court account from
whichever source they are available.
e. To call upon the I defendant to account from the late of
creation of the six schedule trusts as to bring the proceeds to
the Court.”
3. During the pendency of the OP, respondent Nos.1 to 14 and 16
filed interlocutory applications separately under Order VII Rule 11 C.P.C.
requesting the court to reject the said Trust O.P. on common grounds. The
sum and substance of those grounds were as follows:
“(a) there is no cause of action disclosed against the respondents.
b) the said Trust O.P. is barred under Section 9 of the Code of
Civil Procedure, since the relief sought for are to be agitated
only by means of a suit.
c) the reliefs prayed for in the Trust O.P. is barred by
limitation; and
d) lastly, the said Trust O.P. is liable to be rejected on the
ground that the same has not been properly valued for the
purpoe of paying the Court Fees.”
4. Matter was hotly contested before the Principal District Judge,
Thoothukudi and the applications filed under Order VII Rule 11 C.P.C. was
allowed vide common judgment dated 17.10.2005. Aggrieved by the same, the
petitioners in Trust O.P. approached the Hon’ble High Court by way of an
appeal AS 49 of 2006 and the respondent. Nos. 1 to 14 and 16 in the Trust
O.P. filed appeal Nos.50 to 64 of 2006 under Section 96 of the Code of
Civil Procedure, and the 11th Respondent in the Trust O.P. filed M.P. No.4
of 2007. The maintainability of the appeals was successfully questioned by
the respondents before the High Court, but the High Court converted those
appeals as revision petitions and were heard along with M.P. No. 4 of 2007.
The High Court vide judgment dated 11.9.2007 dismissed all the revision
petitions and allowed M.P. No.4 of 2007 and held that the District Court
was justified in allowing the applications filed under Order VII Rule 11
CPC rejecting the Trust O.P. and it was also ordered that the Trust O.P.
could not be converted as a civil suit. However, it was held that the
order of rejection of the Trust O.P. would not stand in the way of the
petitioners in Trust O.P. filing a fresh suit in accordance with law.
Aggrieved by the judgment of the Madras High Court these appeals have been
preferred.
6. Shri P.S. Narsimha, learned senior counsel appearing for the
appellants submitted relying upon Section 49 of the Trust Act that the
Court has a duty to control the affairs of the Trust and its trustees under
its discretionary powers when they are being mismanaged. Learned senior
counsel pointed out that while invoking Section 49 of the Act the Court
should not stick on to hyper technicalities in respect of forms and
procedures, it is the duty of the principal civil court even to act suo
motu whenever it is brought to the notice of the court that there is a
misconduct or any other mal practice committed by the Trustees. Learned
counsel also submitted that in the event of the Court coming to the
conclusion that by some improper advice given, the appellants have
misdirected themselves in filing the Trust O.P., the same can always be
converted into a civil suit.
7. Shri Vijay Hansaria, learned senior counsel appearing for the
respondents, on the other hand, supported the findings recorded by the
courts below. Learned senior counsel also placed reliance on the judgment
of this Court in P.A. Ahmad Ibrahim v. Food Corporation of India (1999) 7
SCC 39 and submitted that the Trust O.P. cannot be converted as a civil
suit.
8. We have perused the Trust O.P. filed by the appellants in the lower
court which is not in the nature of a plaint. The expression “Original
Petition” as such is not defined either in the Trust Act or in the Code of
Civil Procedure. However, Rule 3(9) of the Code of Civil Procedure
defines Original Petition as follows:
“3(9). ‘Original petition means a petition whereby any
proceeding other than a suit or appeal or a proceedings in
execution of a decree or order, is instituted in a court.”
9. Section 2(14) C.P.C. defines the term ‘Order’ which reads as under:
“2(14). “Order” means the formal expression of any decision of
a civil court which is not a decree;”
10. A comprehensive reading of the above-mentioned provisions will make
it clear that the Trust O.P. filed by the appellants before the Principal
District Judge cannot either be construed a suit or equated to be a suit.
The final order passed in the Trust O.P. cannot also be construed as a
decree as defined in Section 2(2) C.P.C. It can only be an “order” as
defined in Section 2(14) C.P.C. The term “suit”, as such is not defined
in the Code of Civil Procedure. However, Section 26, C.P.C. gives an
indication as to the manner in which suit has to be instituted. Section
26 reads as under:
“26. Institution of suits:
1) Every suit shall be instituted by the presentation of a
plaint or in such other matter as may be prescribed.
2) In every plaint, facts shall be proved by affidavit.”
11. A suit can be instituted by presentation of a plaint and Order IV and
VII C.P.C. deals with the presentation of the plaint and the contents of
the plaint. Chapter I of the Civil Rules of Practice deals with the form
of a plaint. When the statutory provision clearly says as to how the suit
has to be instituted, it can be instituted only in that manner alone, and
no other manner. The Trust Act contains 9 chapters. Chapter 6 deals with
the rights and liabilities of the beneficiaries, which would indicate that
the beneficiaries of trust have been given various rights and those rights
are enforceable under the law. Section 59 of the Act confers a right upon
the beneficiaries to sue for execution of the trust which would indicate
that the beneficiaries may institute a suit for execution of the trust.
Therefore, the above-mentioned provisions would show that in order to
execute the trust, the right is only to file a suit and not any original
petition. Under the Trust Act also for certain other purposes original
petitions can be filed. Section 72 of the Trust Act provides for a trustee
to apply to a principal civil court of original jurisdiction by way of
petition to get himself discharged from his office. Similarly, Section 73
of the Act empowers the principal civil court of original jurisdiction to
appoint new trustees. Few of the provisions of the Act permit for filing
of original petitions. The above facts would clearly indicate that the
Trust Act provides for filing of a suit then suit alone can be filed and
when it provides for original petition then original petition alone can be
filed and there is no question of conversion of original petition to that
of a civil suit or vice-versa, especially in the absence of a statutory
provision under the Trust Act. A similar question came up for
consideration before this Court in P.A. Ahmad Ibrahim v. Food Corporation
of India (supra) wherein, while interpreting Section 20 C.P.C. the Court
held as follows:
“Further, before applying the provisions of Order VI Rule 17,
there must be institution of the suit. Any application filed
under the provisions of different statutes cannot be treated as
a suit or plaint unless otherwise provided in the said Act. In
any case, the amendment would introduce a totally new cause of
action and change the nature of the suit. It would also
introduce a totally different case which is inconsistent with
the prayer made in the application for referring the dispute to
the arbitrator. Prima facie, such amendment would cause serious
prejudice to the contention of the appellant that the claim of
the respondent to recover the alleged amount was barred by the
period of limitation as it was pointed out that cause of action
for recovery of the said amount arose in the year 1975 and the
amendment application was filed on 30.3.1986. Lastly, it is to
be stated that in such cases, there is no question of invoking
the inherent jurisdiction of the Court under Section 151 of the
C.P.C. as it would nullify the procedure prescribed under the
Code.”
12. Certain legislations specifically provide for conversion of original
petition into a suit. Section 295 of the Indian Succession Act is such a
provision. The Trust Act, however, contains no such enabling provision to
convert the original petition into a suit.
13. In the above facts situation, we find no infirmity in the judgment
rendered by the courts below. We, therefore, hold that the Trust O.P.
cannot be allowed to be converted into a suit. However, it is made clear
that the rejection of the Trust O.P. under Order VII Rule 11 shall not
operate as a bar for the appellants to file a fresh suit in accordance with
law. Hence, the appeals are disposed of as above. There will be no order
as to costs.
……………………………J.
(K.S. Radhakrishnan)
……………………………J.
(Dipak Misra)
New Delhi;
May 9, 2012
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