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Harl Bhagwan Sharma and ors. Vs. Badri Bhagat Jhandewalan Temple Society and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application Nos. 383 and 3543 of 1983 and Suit No. 1343 of 1982
Judge
Reported in27(1985)DLT68; 1985RLR18
ActsCode of Civil Procedure (CPC), 1908 - Sections 92
AppellantHarl Bhagwan Sharma and ors.
RespondentBadri Bhagat Jhandewalan Temple Society and ors.
Advocates: B.S.C. Singh,; S.N. Marwah,; A.K. Marwaha and;
Cases ReferredInayatulla v. Madari and
Excerpt:
(i) civil - breach of trust - sections 92, 151, order 6 rule 17 and order 7 rule 11 of code of civil procedure, 1908 - suit instituted under section 92 against defendant in respect of alleged public trust - defendant objected petition on ground that suit on religious charitable character can be proceeded only on allegation of breach of trust - perusal of plaint shows misappropriation of trust funds - such facts show breach of trust - no merit found in objection. (ii) amendment in plaint - application for amendment of plaint under order 6 rule 17 read with section 151 - order 7 rule 11 clearly lays down that inadequacy of pleadings sufficient to make out a cause of action entails rejection of plaint - such rule is mandatory in nature - amendments can be allowed where it is necessary to.....j.d. jain, j. (1) -the plaintiffs, four in number, who are all residents of delhi and who claim to be sanatanist hindus being followers of sanatan dharam having belief and faith in idol worship, smritis, upnishads and puranas (i.e. holy scriptures of hindus) have instituted this suit under section 92 of the code of civil procedure (for short the code) against badri bhagat jhandewalan temple society (registered) through its secretary shri ram avtar gupta and 34 other persons in respect of an alleged public trust. it is averred that about a century ago one bhagat badri dass obtained a piece of land measuring 30,929 sq. yards comprised in khasra no. 40, village banskoli, delhi, for the purpose of erecting a temple and a dharamsala and he erected a temple thereon and installed the idol of.....
Judgment:

J.D. Jain, J.

(1) -THE plaintiffs, four in number, who are all residents of Delhi and who claim to be Sanatanist Hindus being followers of Sanatan Dharam having belief and faith in Idol worship, Smritis, Upnishads and Puranas (i.e. holy scriptures of Hindus) have instituted this suit under section 92 of the Code of Civil Procedure (for short the Code) against Badri Bhagat Jhandewalan Temple Society (Registered) through its Secretary Shri Ram Avtar Gupta and 34 other persons in respect of an alleged public trust. It is averred that about a century ago one Bhagat Badri Dass obtained a piece of land measuring 30,929 sq. yards comprised in khasra No. 40, Village Banskoli, Delhi, for the purpose of erecting a temple and a Dharamsala and he erected a temple thereon and installed the Idol of Goddess Durga Mata on a permanent pedestal for 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 Pathsala named Sanatan Dharam Sanskrit Vidyashala (Registered) and the same was affiliated to Banaras Hindu University. The said Pathsala 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 dedication to the temple, made a declaration that the temple and the estate called 'Jhandewalan Estate' constituted a public trust and with a view to ensure its management in a regular and proper manner he created a Society called 'Badri Bhagat Jhandewalan Society,' now defendant No. 1. The Society framed its rules, regulations and a memorandum which were duly registered under the Societies Registration Act. 11 prominent and respectable Sanatanists of Delhi were named as trustees while Shyam Sunder himself became a life trustee to manage the affairs of the registered Society and the trust. Subsequently, fresh trustees were taken as and when occasion arose. The plaintiffs further contend that Prem Nath Kapoor, defendant No. 2, is claiming that he has become a life trustee by virtue of his adoption as a son by late Shyam Sunder, who died on 27th March 1959, as also under the will alleged to have been executed by Shyam Sunder on 27th March 1959. Further defendant No. 2 has been indulging in undesirable activities and has been making alienations in respect of the properties of the trust in the form of leases etc. to various bodies like the R.S.S. and has misappropriated the enormous funds of the trust which are received in the shape of offerings etc. from the devotees. He has even co-opted some noneanatanists as trustees which was against the letter and spirit of the declaration of trust. The plaintiffs' have also adverted to some litigation which has been going on between Badri Jhandewalan Temple Society and its members on the one hand, viz., defendants I to 21 and Yogeshwar Attrey, defendant No. 22 and other defendants on the other, with regard to the possession and control of the trust and its properties. Defendant No. I has, inter alia, instituted suit No. 447/82 in this Court against Yogeshwar Attrey, defendant No. 22 etc. for his removal as head priest of the temple. In turn, said Yogeshwar Attrey and other defendants claim that they have a right to manage and control the properties of the temple and the trust and there is a scramble between the two factions for control of the same. The plaintiffs have. thereforee, prayed that all the present trustees, whether legally appointed or purporting to act so, be removed ; that new trustees of unquestionable loyally to Sanatan Dharam and having belief in the Idol worship be appointed and a scheme be fettled 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 enormous income of the same. Thus, according to them, the suit has not been instituted by the plaintiffs in a representative capacity for the purpose of vindicating the rights of the public at large although the reliefs claimed have been dressed up in such a manner as to fall within the scope and ambit of section 92 of the Code ; (iii) the plaint does not disclose any cause of action because the averments made in the plaint do not disclose any existing and real interest of any of the plaintiffs as devotees of the temple and beneficiaries under the trust.

(4) This application is naturally contested by the plaintiffs who urge that there is no substance or merit in any of these contentions.

(5) On a plain reading of section 92, it is manifest that where two or more persons having interest in the trust, intend to file a suit under the said section, they must obtain leave of the Court to institute the suit and that the permission of the Court is a condition precedent to the institution of the suit is explicit from the words 'and having obtained the leave of the Court may institute a suit.' Thus, provisions of section 92 are mandatory in nature in this respect and grant of leave to file the suit is not merely a matter of form but of real substance, it being a condition precedent to the institution of the suit. So, as a necessary corollary, it would follow that the plaint will have to be rejected in case it is shown that no such leave has been obtained from the Court. As stated above, an application for obtaining the leave being Civil Rule 4/82 was made by the plaintiffs and the permission was granted by the Court. The order made by the Khanna, J. in this behalf has been reproduced above verbatim. The principal ground of attack by the learned counsel for the defendants against the aforesaid order, however, is that the leave being conditional it is not valid and legal. Emphasis in this context is placed on the words 'subject to just exceptions' which precede the words 'the permission to sue under section 92 Civil Procedure Code . is granted.' The kerned counsel has urged with considerable fervour that the aforesaid order betrays non-application of judicial mind and purports to be just an interim or at least a provisional order. Relying upon a Bench decision of Kerala High Court in P.V. Mathew and others v. K.U. Thomas and others, : AIR1983Ker5 , he has urged that 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. Notwithstanding this legal position, the addition of these words has simply served to expressly reserve the rights of the defendants in-tact to contest the suit on any ground available to them. Certainly it does not make any dent in, nor does it qualify the leave to institute the suit which is absolute and final. As said by the Supreme Court in Chairman Madappa v. M.N. Mahanthadevaru and others, : [1966]2SCR151 :

'THE main purpose of section 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate General or two or more persons having an interest in the trust with the consent in writing of the Advocate General. The object is that before the Advocate General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima face case either of breach of trust or of the necessity for obtaining directions of the Court.'

(7) In the instant case the plaint was before the Court and, thereforee, it can be well presumed that the Court has satisfied itself about the existence of a prima facie case of either breach of trust or of the necessary for obtaining the directions of the court as also about the interest of the plaintiffs in the alleged trust before making the aforesaid order. It was not at all necessary for the court to give reasons in the order or issue a notice to the respondents defendants and hear them before granting the leave. (See S.S. Bhagat and others v. N.S.Ahluwalia, Air 1978 Delhi 14, Shavax A. Lal and others v. Syed Masood Hosain and others, : AIR1965AP143 and Prithipal Singh v. Magh Singh and others, , in this context). Hence, I do not find any merit in this contention.

(8) The next submission made by the learned counsel for the contesting respondents/defendants is that a suit under section 92 C.P.C.is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. Hence, the suit must be instituted in a representative capacity 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 whosoever is found in possession thereof.

(9) It is well settled law that a suit under section 92 Civil Procedure Code . must be instituted by two or more persons in a representative capacity in the interest of the public and not merely for the vindication of the individual or personal right of themselves or someone else. The plaintiffs are not entitled to seek a declaration of their individual or personal rights of the individual or personal right of any other person or persons in whom they are interested. See Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another, : [1975]1SCR790 , wherein it was inter alia, observed that :

'A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and so the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights'

(10) Reference in this connection may also be made to Sugra Bibiv. Hazi Kummu Mia, : [1969]3SCR83 .

(11) While browsing through the plaint, one will no doubt notice that there is a reference to the activities of defendant No. 21 which is a society called 'Durga Bhajan Mandal, Badri Bhagat Jhandewalan Temple Development Society' and defendants 22 to 32, who have been described as representatives of the said Society. It is further stated that the Society took upon itself the task of management of the affairs of the temple including performance of pooja, collection of offerings and spending the same on the up-keep. and repairs of the temple. There is also reference to some litigation which has been going on with respect to this trust, especially, a suit instituted by defendant No. 26 against defendants 1, 2 and 5 etc. claiming himself to be the grandson of the real sister of late Shri Ramji Dass Tandon in his personal capacity. Further there 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-appropriation of its properties is taking place on a wide scale. Under the circumstances, the plaintiffs have prayed for not only removal of the present trustees but also for appointment of new trustees and framing a scheme for carrying on the object and purposes of the trust in a proper manner. Having regard to the sordid state of affairs and the large-scale mis-appropriation of the trust properties and the funds which is allegedly taking place, I have no reason to doubt the bona fides of the plaintiffs and that this suit has been instituted by them in a representative capacity for public good and the benefit of the beneficiaries comprising an uncertain and fluctuating body of worshippers etc. The mere fact that there is some reference to the activities of defendants 21 and 22 as having taken up cudgels with defendants I and 2 for proper management of the trust and its properties would be no ground to hold that the suit has been instituted only for the benefit or vindication of rights of defendants 21 and 22 or anyone else. Needless to say that in order to ascertain whether a suit falls within the ambit of section 92 Civil Procedure Code ., the Court is normally to look to the allegations made in the plaint. If facts showing breach of trust are alleged in the plaint, it is enough to give jurisdiction to the court. So, it cannot be said that the foundation for suit under section 92 is not laid. Of course, if on merits the Court finds that there is no substance in the allegations made against the defendants or those who are at present managing and controlling the affairs of the temple and the trust properties, it will be open to the Court to throw out the plaint in its entirety or to the extent intervention by the Court is not called for. So, this objection too is without any merit.

(12) Lastly, the learned counsel for the contesting defendants has contended with considerable vehemence that the plaint does not disclose any cause of action entitling the plaintiffs to institute a suit under section 92 Civil Procedure Code . He has pointed out that the bare allegation in the plaint that plaintiffs are Sanatanist Hindus of Delhi and are followers of Sanatan Dharam having belief and faith in Idol worship, Smritis, Upnishads and Puranas is hardly sufficient to confer on them any locus standi to institute the suit inasmuch as the interest contemplated in section 92 must 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 further averred that he was likely to do so if he again went to Tellicherry. Keeping in view these facts, the Full Bench by majority held that the plaintiff did not have any existing and substantial interest in the said temple which would confer on him the right to bring a suit under section 92 Civil Procedure Code . Wall is, C.J., while taking notice of the amendment which had been introduced by section 44 of the Civil Procedure (Amendment) Act 1888 which amended the Procedure then in force by substituting the words 'having an interest' for the words 'having a direct interest' in section 593 of the Civil Procedure Code of 1877, was still of the view that to entitle a person to sue under section 92 Civil Procedure Code ., it is not enough that the plaintiff is a Hindu by religion, but he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion. He elucidated his opinion further as under :

'THATinterest, it seems to me, if the provision is not to be altogether illusory, must arise from some special relation in which the plaintiff stands to the endowment in question as compared with the whole body of religious community throughout India; in other words, he must be in a position to derive some benefit from the trust in respect of which the suit is filed.''

(13) After reading the judgment of his learned colleague Kumaraswami Sastri, J., who was of the opinion that the right to worship in a particular temple is sufficient interest to entitle a person to join in a suit under Section 92, the learned Chief Justice concluded by saying :

'I have proceeded on the assumption that Hindu temples are prima facie to be taken to be dedicated for the use of all Hindus resorting to them. There are, however, three hundred million Hindus and I know not how many thousand temples in India, and to say that the bare possibility, however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust, appears to me to defeat the object with which the Legislature inserted these words in the section. That object was to prevent people interfering by virtue of the section in the administration of charitable trusts merely in the interest of others and without any real interest of their own.' In Vaidyanatha Ayyar's case (supra), their Lordships 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-house or to obtain food there. As for Mahant Harnam Singh's case, it may be noticed that the only allegation made in the plaint was that a Langar used to be run in the charitable institution in question where free kitchen was provided to visitors. The suit had been brought by some Lambardars and residents of the village. It was nowhere stated that the free kitchen was being run for the general residents of the village Jhandawala, who could as of right claim to be fed in the langar. Under these circumstances, the Supreme Court held that mere residence in a village where free kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that they can institute a suit for the removal of the Mahant. It may be thus noticed that in all these three cases the interest of the plaintiffs, if any, was somewhat remote or contingent and not substantial and existing. However, the position in the instant case is quite different inasmuch as the plaintiffs are not only votaries of Sanatan Dharam and believers in Idol worship but they are residents of the same town, namely, Delhi in which the endowment in question is situate. It may be patient to notice here that Shri Anil Kumar Mehra, plaintiff No. 3, is a resident of 10196, Jhandewalan Mandir, itself. While browsing through the array of parties in the plaint, I find that several defendants, viz., 15, 16, 17, 18, 19, 21, 22, 26 and 35 are also residents of the same locality called 'Jhandewalan Mandir.' As stated above, defendants 21 and 22 are the contesting defendants in the other suit No. 447/82. Thus, the claim of the plaintiffs that they have subsisting interest in the proper management of Jhandewalan Devi Temple and other temples and Dharamshalas forming part of its estate control be brushed aside lightly on the facile plea that the plaint does not disclose any cause of action and as such it must be rejected under order Vii rule 11 Civil Procedure Code . The court must look to the substance and not mere form of the averments made in the plaint.

(14) However, the plaintiffs have, by way of abundant caution, moved I.A. 3553/83 under Order Vi, Rule 17 read with section 151 Civil Procedure Code . for amendment of the plaint. They seek to furnish more particulars at the end of para 1 of the plaint in order to signify the kind of interest which 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 expressed this view. The first of this case is Dr. (.Mrs.) K.D. Kurana v. Hindustan Industrial Corporation, 20(198l Dlt 236, which was a case under Delhi Rent Control Act. It was held that:

'...PLEADINGof all the ingredients or the facts constituting the cause of action to claim eviction under section 14(l)(e) of the Act is essential and failure to plead all the ingredients results in rejection of the eviction application under Order Vii, Rule Ii of the Code.'

It was further held that :

'...NOamendment of an eviction application can be allowed so as to include in it an essential ingredient not pleaded in the original application especially after an objection thereto has been taken in the written statement.'

(16) Enunciating the legal position as envisaged in Order Vii, Rule 11 C.P.C., his Lordship said .

'UNDER clause (a) of this Rule, if the plaint does not disclose a cause of action, it is liable to be rejected. The Rule uses the word 'shall' and thereforee it seems that it is mandatory to reject a plaint in case it does not disclose a cause of action.'

(17) His Lordship then compared the provision of clause (a) with the provisions of clauses (b) and (e) of the said Rule and observed that :

'UNDERclause (b) of Rule 11 if the relief is undervalued the Code requires the Court to give an opportunity to the plaintiff to correct the valuation within a certain time and if he fails to do so, the plaint is to be rejected. Similarly, under clause (e) of Rule 11 if the plaint is insufficiently stamped and the plaintiff fails to supply the requisite stamp paper within a time fixed by the Court, the plaint is to rejected. Thus, it appears that the provision contained in clause (.a) of Rule Ii of the Code is mandatory. Under clauses (b) and (e) an opportunity is given to the plaintiff to correct the valuation or to supply the requisite stamp paper within a time fixed by the court and on his failure to do so, the Rule provides that the plaint shall be rejected.'

(18) While dealing with the question whether the can petitioner be granted leave to amend the eviction petition when it does not disclose a cause of action the learned judge observed that generally the court has power to grant leave to amend the pleadings if the case is covered by order Vi, rule 17 of the Code and noticed various reported decisions, viz., M/s. Watkins Mayor and Company, Jullundw 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 is mandatory in nature. However, that would not warrant the conclusion that the court must reject the plaint even though an application for its amendment has been made before an order rejecting the plaint is passed. Order Vi, Rule 17 empowers the court to allow either party to alter or amend his pleadings at any stage of the pleadings in such manner and on such terms as may be just and it enjoins upon the Court to permit all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. The words 'at any stage of the proceedings' occurring in the said rule are of wide amplitude and would also cover the stage of the suit before the plaint is actually rejected. So, it cannot be said, by any stretch of reasoning, that the Court would be acting without jurisdiction in permitting amendment of the plaint when it does not disclose a cause of action and the defect/insufficient cause of action is sought to be rectified/ made good by furnishing additional particulars. The provisions for amendment of the pleadings, it has been repeatedly said, are intended for promoting justice and not for defeating them. As observed by Bowen. L.J., in Cropper v. Smith (1884) 26 Ch. D. 700 ;

'IT is a well established principle that the object of the Court is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights......Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy.........

'...ITseems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.'

(20) The Supreme Court has enunciated the legal position in this respect at .length in M/s. Ganesh Trading Co. v. Moji Ram, : [1978]2SCR614 . It said:

'BUT,mere failure t,o set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact 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 that 'even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none' seems to have escaped his Lordship's notice. In fact, it seems to me that instant is a case where the plaintiffs have omitted to state an essential fact in order to elucidate their real interest in the temple and trust properties. So, making good that deficiency can, by no stretch of reasoning, be termed as introducing a new cause of action. It would be simply a case of defective pleading being cured of its inadequacy or want of essential particular and nothing more. Reference in this context may be made to A.K. Gupta and Sons Ltd. v, Damodar Valley Corporation, : [1966]1SCR796 wherein it was held that :

'WHERE,however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment will be allowed even after the expiry of the statutory period of limitation.'

The Court pointed out that :

'THE expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill (1873)8 C.P. 107, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would went to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts'

(22) Obviously the amendment sought in the instant case does not aim at introducing a new cause of action or a new set of ideas. It only seeks to rectify the omission which had somehow occurred in the original pleadings. Hence, there is no reason why the proposed amendment should not be allowed.

(23) That apart Order Vii, Rule 11 cannot be interpreted as curtailing or limiting the -power of the Court to allow amendment under Order VI. Rule 17. There is nothing in the said rule which would warrant such a conclusion. It is well settled rule of interpretation of statutes that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made to so reconcile the relevant provisions as to advance the remedy intended 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 should thereforee be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.'

(See Sangram Singh v. Election Tribunal Kotah and another, : [1955]2SCR1 ). In this context it would also be pertinent to notice the provisions of Order Vii, Rule 13 which lays down that the rejection of the plaint on any of the grounds mentioned in Order Vii, Rule 11 shall not on its - own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Consequently, the plaintiffs will be entitled to institute a fresh suit as of right on the same cause of action in case the instant plaint is rejected. It will obviously lead to multiplicity of proceedings/suits. It is a well recognised and sound principle of law that multiplicity of suits should be avoided if an amendment can be allowed in the interest of substantial justice and without prejudice to the rights of the opposite party. In this view of the matter, I am fortified by several judicial decisions not only of other High Courts but of our own High Court.

(26) This precise question fell for consideration in Gaganmal Ramchand v. Hongkong and Shanghai Banking Corporation, : AIR1950Bom345 . Repelling the contention of Mr. Seervai that Order Vi, Rule 17 is controlled by Order Vii, Rule Ii, in that in cases falling under Order Vit, Rule 11, the Court has no jurisdiction to order the amendment of the plaint i.e. when a plaint does not disclose a cause of action, it is mandatory upon the Court to reject the plaint and dismiss the suit and the Court has no power to permit the plaint to be amended, Chagla, C.J., who spoke for the Bench observed :

'I see no reason whatever why the power of the Court to allow amendment of pleadings should be in any way restricted or controlled by the provisions contained in Order Vii, Rule 11. It is perfectly true that it is incumbent upon the Court to reject a plaint that does not disclose a cause of action...... But the Court may prevent the operation of Order Vit, Rule 11, and may save the plaint being rejected by exercising its power under Order Vi, Rule 17 and allowing the plaint to beamended. It would indeed be an extraordinary proposition to lay down that if various averments had to be made in the plaint which would go to constitute a cause of action, and by some 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 0044/1930 : 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 GokuJananda 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 Delhi Rent Control Act) that one of the essential ingredients for obtaining the orders of eviction had not been pleaded. The landlord was allowed to amend the application. Yogeshwar Dayal, J., held that the amendment was rightly allowed and no prejudice had been caused to the opposite party from the order following the amendment at such an early stage of trial. He further observed that Dr. (Mrs.) ND. Khama v. M/s'Hindustan Industrial Corporation (supra) was no precedent for saying that the Controllers have no power to permit amendment of the pleadings if they are bonafide applied for. Similarly in Monmohan Mehra (supra), M.L. Jain, J., expressed the view that :

'APPLICATION cannot be thrown out if the cause of action can be implied or if it is partly pleaded. The omission can be rectified by supplying better particulars or in the replication or by way of amendment.'

As aptly observed by his Lordship :

'JUDICIAL discipline should not be allowed to degenerate into tyranny, decorum into slavery and certainty into rigidity. Discipline is desirable, but sometimes a certain amount of valour is demanded.'

(29) The reason for this view is obvious that considerations of form cannot over-ride the legitimate considerations of substance. With great respect, thereforee, to the view taken by Sultan Singh, J., I would prefer to agree with the other view that an amendment of the plaint can be allowed if a prayer is made bonafide before the plaint is actually rejected under Order Vii, Rule 11 by furnishing particulars ard making averments which were somehow omitted and rendered the cause of action incomplete or vague and obscure provided, of course, the other parly can be compensated by way of costs and no valuable right has accrued to the opposite party by lapse of time which would debar the plaintiffs from instituting a new suit on the same cause of action.

(30) To sum up, thereforee, I reject 1.A. 383/83 as being without any merit and allow the proposed amendments to be made in the plaint as prayed in I.A. 3553/83. The plaintiffs shall, however, payRs.250.00 as costs to the contesting defendants.


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