REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.3034 OF 2008

Public Trust Shri Geeta Satsang Bhawan                  ….Appellant(s)

VERSUS

Nand Lal & Ors.     .…Respondent(s)

WITH

CIVIL APPEAL NO. 9876 OF 2017 (Arising out of S.L.P.(c) No. 10949/2008)

AND CIVIL APPEAL NO. 9877 OF 2017

(Arising out of S.L.P.(c) No. 11138/2008) AND

CIVIL APPEAL NO. 9878 OF 2017 (Arising out of S.L.P.(c) No. 14325/2008)

J U D G M E N T

Abhay Manohar Sapre, J.

IN Civil Appeal No. 3034 of 2008

1) This appeal is filed by the Plaintiff against the final

judgment  and  orders  dated  19.09.2006  passed  by  the

High Court  of  Judicature  for  Rajasthan at  Jodhpur  in

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S.B. Civil Second Appeal No. 295 of 2006 and S.B. Civil

Second Appeal No. 296 of 2006 whereby the High Court,

by separate judgments, dismissed the appeals filed by the

plaintiff  against  the  judgment  dated 30.11.2005 of  the

Additional District Judge(Fast Track) No.2, Pali (Raj.) in

Civil  Appeal  Decree  Nos.3  and 4  of  2005 whereby  the

appeals of the respondents (defendants) were allowed and

the judgment and decree dated 27.10.2004 passed by the

Civil  Judge (Senior  Division),  Pali  in the Civil  Suit  No.

4/2004 and Civil Suit No. 5/2004 were set aside.

2) We herein set out the facts, in brief, to appreciate

the issues involved in this appeal.

3) The  appellant  is  a  public  Trust  of  which  Shri

Ramanand is the Chairman.  The Trust was formed by

executing  a  Trust  deed  on  31.07.1980.   The  land

measuring 1 Bigha 5 Biswas situated at Pali was allotted

by the Government on 14.05.1982 in the name of Shri

Rama Nand and the patta was accordingly granted  to

him.  He then constructed shops on this land.

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4) On 01.10.1985, the Shop No.7 was let out to Nand

Lal-respondent No.1  on rent on an oral agreement at a

monthly  rent  of  Rs.500/-  which  was  enhanced  at

Rs.625/- per month on 01.10.1996 with the consent of

both parties.

5) On  01.10.1989,   the  Shop  No.11  was  let  out  to

Nand  Lal,  Jitendar  Rai  Mathur  and  M/s  Mayur  Auto

Repairs on rent on the basis of an oral agreement at a

monthly  rent  of  Rs.600/-,  which  was  enhanced  to

Rs.750/- per month on 01.10.1996 with the consent of

the  parties.   After  the  enhancement  of  rent,  the

respondents  stopped  paying  the  rent  to  the

appellant-Trust.   However,  respondent  No.1  paid  rent

only in respect of Shop No. 7 up to 30.06.1998.

6) On  17.10.1998,  the  appellant,  therefore,  sent  a

notice under Section 106 of the Transfer of Property Act,

1882  to  the  respondents  in  respect  of  Shop  No.11

through registered post and terminated the tenancy.    By

virtue of notice, the respondents were informed that their

tenancy would terminate w.e.f. midnight of 30.11.1998.

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Similarly,  on  22.10.1998,  the  appellant  sent  a  notice

under Section 106 of the T.P. Act to respondent No.1 in

respect  of  Shop  No.7  through  registered  post  and

terminated  the  tenancy  w.e.f.  midnight  of  30.11.1998.

Respondent No.1 did not reply to this notice also.

7) Subsequently, on 23.10.1998, the respondents gave

a cheque to the appellant against the rent in respect of

Shop No.11 up to the month of November and damages

on  account  of  use  and  occupation  for  the  month  of

December, 1998 and respondent No.1 gave a cheque in

respect of  Shop No.7 against the rent up to the month of

November  and  damages  on  account  of  use  and

occupation for the month of December, 1998.  However,

the respondents did not hand over the possession of both

the shops.

8) On 20.01.1999, the appellant instituted a suit for

eviction and recovery of rent being Civil Suit No. 15/99

(re-numbered as 5/2004) against Nand Lal, Jitendar Rai

Mathur and M/s Mayur Auto Repairs in respect of Shop

No.11 and Civil Suit No.14/99 (re-numbered as 4/2004)

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against  Nand  Lal  in  respect  of  Shop  No.7  before  the

Additional Civil Judge(Senior Division), Pali.

9) The Trial Court, after framing the issues in both the

suits,  by separate  judgments on 27.10.2004, answered

the  issues  in  favour  of  the  appellant  and  accordingly

decreed the appellant’s suit and ordered the respondents’

eviction from the  suit  premises  within a period of  two

months  and  pay  the  damages  for  use  and  occupation

w.e.f.  20.11.1998  till  the  date  of  handing  over  the

possession of the suit premises (i) at the rate of Rs.750/-

per month in Civil Suit No.5/2004 and (ii) at the rate of

Rs.625/- per month in Civil Suit No.4/2004.

10) Aggrieved  by  the  said  judgment,  the  respondents

filed  separate  first  appeals  being  Civil  Appeal  Decree

No.3/2005 and Civil Appeal Decree No.4/2005 before the

Additional District Judge (Fast Track) No.2, Pali.

11) The  Appellate  Court  framed  additional  issues  in

place of issue Nos. 1 and 1(a) framed by the Trial Court,

which read as under:

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“(1) Whether the plaintiff-trust is exempted from  the  Rent  Act  according  to  the Advertisement No.P-4(11)V.V. and 3/96 dated 04.07.98  published  at  Page  No.51  in  the Rajasthan government Gazette Edition dated 06.07.1998? (2) Whether having terminated the tenancy by issuing notice  under Section 106 of  the Transfer of Property Act, plaintiff is entitled to get the possession? (3) Whether  the  plaintiff  is  a  registered Trust, if yes, then its effect? (4) Whether all the Trustees are necessary parties to the suit? (5) Whether the notice has been waived on account  of  accepting  the  rent  after terminating the tenancy through notice?”

12) By  separate  judgments  on  dated  30.11.2005,  the

Appellate Court decided issue Nos. 3 and 4, as extracted

above, against the appellant and accordingly allowed the

respondents’  appeals  and set  aside the judgments and

decree  dated  27.10.2004 passed  by  the  Trial  Court  in

Civil  Suit  Nos.  4/2004  and  5/2004.  It  was  held  that

since  the  plaintiff-Trust  was  not  registered  under  the

Rajasthan Public Trust Act, 1959(hereinafter referred to

as “the Act”),  the suit itself was not competent for want

of registration in the light of bar contained in Section 29

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of the Act. The Appellate Court, therefore, did not go into

the merits of the case and dismissed the suit.  

13) Aggrieved  by  the  said  judgments,  the  appellant

preferred  S.B.Civil  Second  Appeal  Nos.295/2006  and

296/2006 before the High Court.

14) The  High  Court,  by  the  impugned  judgments,

dismissed the appeals in limine.

15) Against both the judgments, this appeal by special

leave is filed by the plaintiff-Trust before this Court.  

16) Heard Mr. M.R. Calla, learned senior counsel for the

appellant-Trust and Mr. Puneet Jain, learned counsel for

the respondents.

17) During the pendency of this appeal,  the appellant

(plaintiff) filed I.A. No 5 of 2013 and sought permission to

file  additional  documents in support of  their  case. The

appellant along with IA filed one Registration Certificate

issued  on  07.02.2013  by  the  office  of  the  Assistant

Commissioner,  Department  of  Endowments,  Jodhpur,

Government  of  Rajasthan(Annexure  A-3)  certifying

therein  that  the  appellant(plaintiff)-Trust  is  registered

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under  the  Act   w.e.f.  07.02.2013.   A  prayer  was,

therefore, made to take this document on record being

relevant  one  for  deciding  the  appeal.   This  I.A.  was

allowed by this Court’s order dated 20.01.2014.

18) Having  heard  the  learned  counsel  for  the  parties

and on perusal of the record of the case, we are inclined

to allow the appeal in part and while setting aside the

impugned order and also of the first Appellate Court and

the Trial Court restore the civil suit to its file for deciding

the civil suit afresh on merits in accordance with law.  

19) It is an admitted fact that the appellant/plaintiff -

Trust was not a registered public Trust under the Act on

the date of filing the civil suit. It is also an admitted fact

that  the  appellant-plaintiff,  therefore,  got  the  Trust

registered as required under the Act only on 07.02.2013

during the pendency of this appeal.   

20) Section 29 of the Act,  which applies to this case,

reads as under:

“Section  29.  Bar  against  suits  by un-registered  trust-(1)  No  suit  to  enforce  a right  on  behalf  of  a  public  trust  which  is

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required to be registered under this Act but has not been so registered shall be heard or decided in any Court.

(2)   The  provisions  of  Sub-section(1)  shall apply to claim of set off or other proceeding to  enforce  a right  on behalf  of  such public trust.”

21) Section 29 creates a bar  "for hearing and deciding a

suit" filed by the public Trust for enforcement of any of

their rights, if the said Trust is not registered under the

Act. The bar, therefore, applies for "hearing and deciding”

a suit and not in filing the suit. In other words, suit can

be  filed  by  the  unregistered  Trust  but  such  suit  will

neither be heard nor decided by the Court unless and

until the Trust is registered under the Act. Section 29,

therefore, operates as stay of proceedings in the suit so

long as the Trust does not get itself registered under the

Act.  

22) A fortorari, the moment the Trust is registered under

the Act, the Trial Court would assume the jurisdiction to

hear  and  decide  the  suit  on  merits.  The  bar  created

under Section 29 of the Act for “hearing and deciding” the

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suit is then lifted and ceases to apply to the proceedings

in the suit.

23) As mentioned supra, since the appellant (plaintiff) -

Trust was registered under the Act on 07.02.2013, they

acquired a right to prosecute the suit on merits against

the respondents. The bar created under Section 29 then

would no longer operate to the proceedings in the suit.  

24) In  our  opinion,  the  Trial  Court  was,  therefore,

wholly unjustified in proceeding to hear and decide the

suit on merits by passing a judgment/decree. It failed to

see the rigor of  Section 29 which had taken away the

jurisdiction of the Trial Court in hearing and deciding the

suit.  

25) Similarly,  the  first  Appellate  Court  and  the  High

Court  also  erred  in  straightaway  dismissing  the

appellant's suit. Having held and indeed rightly that the

Trust  was unregistered,  instead of  deciding  the  appeal

and  dismissing  the  suit  should  have  stayed  the

proceedings  by  granting  some  reasonable  time  to  the

appellant/plaintiff-Trust  to  get  their  Trust  registered

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under  the  Act.  If  despite  granting  time,  the  Trust  had

failed to obtain the Registration Certificate then in such

eventuality,  the  first  Appellate  Court  could  have

dismissed the suit.

26) Be that as it may,  now that the appellant/plaintiff

has  obtained  the  necessary  registration  certificate  in

relation to their Trust under the Act, which is also taken

on record, their suit can now be heard and decided on

merits  by  the  Trial  Court.  The  bar  operating  under

Section 29 of the Act for hearing and deciding the suit

would no longer  apply  to  the  suit  and the  Civil  Court

would now assume jurisdiction to try the suit on merits.   

27) Learned  counsel  for  the  appellant  (plaintiff),

however,  submitted that the matter be remanded to the

first  Appellate  Court  to  decide  the  appeal  filed  by  the

respondent on merits because the Trial Court has already

decided  the  suit  on  merits  in  their  favour.  The

submission  is  devoid  of  any  merit  for  more  than  one

reason.  

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28) First, the decree passed by the Trial Court was on

the face of it without jurisdiction having been passed in

contravention of Section 29 of the Act; second, the Civil

Court had no power to hear and decide the suit by virtue

of the bar created under section 29 of the Act;  and third,

admittedly the Trust was not registered on the date of

filing  of  the  suit  and  remained  un-registered  till  the

judgment was delivered by the Trial Court. It is for these

reasons, the decree passed by the Trial Court is without

jurisdiction and has to be set aside.    

29) In  view  of  foregoing  discussion,  the  appeal  is

allowed  in  part,  impugned  judgments  as  also  the

judgment/decrees of  the Trial  Court are set aside. The

matter is remanded to the Trial  Court for hearing and

deciding  the  suits  on  merits  in  accordance  with  law.

Parties are granted liberty to amend their pleadings and

also file additional documents including the certificate of

registration  of  the  Trust  to  enable  the  Trial  Court  to

decide the suits as directed. The Trial Court shall decide

the suits within six months uninfluenced by any of our

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observations on merits because we have not expressed

our opinion on any of the issues touching the merits of

the controversy. Parties to appear before the Trial Court

on 21.08.2017 to enable the Trial Court to proceed with

the trial.  

30) The Registry is  directed to send back the original

record of  the case to the Trial  Court forthwith,  if  it  is

requisitioned, and also send one copy of this order to the

Trial Court for information and record.  

In S.L.P.(c) Nos. 10949, 11138 and 14325 of 2008  

Leave granted.

In view of the judgment passed in Civil Appeal No.

3034 of 2008, these appeals are allowed in part on the

same terms.

               ………...................................J. [R.K. AGRAWAL]   

                                                               …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; July 25, 2017  

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