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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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