SINNAMANI Vs G. VETTIVEL .
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-004368-004368 / 2012
Diary number: 250 / 2008
Advocates: T. V. RATNAM Vs
ASHOK MATHUR
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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.
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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.
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(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
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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)
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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
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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
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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.”
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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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