@JUDGMENTTAG-ORDER
A. Ramamurthi, J.@mdashApplication No. 3081 of 2002 is filed by the second defendant to revoke the Order dated 27-2-2002 passed in
Application No. 567 of 2002 granting leave to the plaintiffs to institute the suit u/s 92 of the Civil Procedure Code.
Application No. 3668 of 2002 is filed by the plaintiffs to implead ""John De Monte Trust"" represented by its Trustee. Archbishop''s House. 21
Santhome High Road, Chennai-4, as 10th defendant in the suit.
2. The case in brief for disposal of all the applications is as follows :-- The plaintiffs filed an application No. 567 of 2002 and obtained leave to
institute a suit against the defendants u/s 92 of CPC on 27-2-2002. The leave granted u/s 92 of CPC is liable to be revoked. The suit itself ought
not to have been numbered by the Registry on the ground that the Trust is not a party to the proceedings and others are added as parties in their
individual capacity. The Scheme Decree is sought for by the plaintiffs, wherein the Trust is not made a party. The initial defect goes to the root of
the matter and the plaint should be rejected under Order VII. Rule 11 of CPC (CPC). The plaintiffs are not persons interested in the suit Trust and
they cannot maintain the suit u/s 92, C. P. C. The plaintiffs are said to be eminent per sons in the society but does not state as to how they are
persons interested in so far as the present Trust is concerned. The mandatory requirements stipulated u/s 92, C. P. C. is not satisfied. The plaintiffs
have instituted the suit against various persons just to tarnish the image of the Catholic Church. Even otherwise no case has been made out to
sustain the suit u/s 92, C. P. C. The power of the Trust to lease the property cannot be questioned. The 1st defendant had instituted O. P. 219 and
220 of 2002 for identical purpose seeking permission to lease out the property. Vast extent of property measuring about 390 grounds is utilized to
run the Stella Marls College, which is serving the public as a premier institute of excellence in Arts and Science. Portion of the property known as
''D'' Monte Colony'' which was leased to Hachbridge, Hewittlc and Easun Limited and after the Company ran into financial constraints, major
portion of the property is being repossessed. The BENS Garden which was originally leased out to Parry and Co., after surrender of the major
portion, is now being proposed to be utilized for running a Hospital. Holy land project and for running educational institutions. A portion of the
property, which is outside the City of Chennai, is utilized to house the aged, orphans and a church. The entire income is subject to audit. The
apprehension raised by the plaintiffs as if the property is going to be sold, is ill-founded. It, is admitted that the first plaintiff participated in various
meetings. He tendered his resignation on 21-3-2000, which was accepted. The actual motive and grievance of the first plaintiff is that he wants the
properties tp be given to Church related organization involved in charitable and developmental activities on rent and not to the 7th defendant. This
cannot constitute a ground to allege mismanagement and institute the suit u/s 92. C. P. C. It is a personal grievance and nothing more. The actions
are bona fide and it is transparent. The Court is the guardian of all the Religious and Charitable Trusts. Defendants 8 and 9 have filed an affidavit
stating that the procedure followed is correct and proper. The properties are being preserved and utilized for the benefit of the Trust. The plaintiffs
are mere inter-meddlers and have instituted the suit as their minority view has not been accepted. The plaintiffs have instituted the suit to prevent
the next legal step of obtaining approval from this Court to lease out the property. The balance of convenience is in favour of revoking the leave
already granted.
3. The plaintiffs filed Application No. 3668 of 2002 that they have made all parties connected to the trust as defendants in the suit. However, they
are advised that they should make the Trust as a defendant and, as such it is a necessary and proper party to the suit and the Trust should be
impleaded as 10th defendant in the suit.
4. The plaintiffs filed counter to Application No. 3081 of 2001 and denied the various averments. The plaintiffs in the applications have set out their
involvement in various Charitable activities and institutions of a religious and secular nature. The Court is the ultimate guardian of all charitable trusts
and their beneficiaries and is entitled to review every decision of a trustee which is not in the interest of the trust or its beneficiaries. There has been
no exercise to verify the best and the most advantageous terms that were available. An unfortunate attempt is made to mislead this Court on the
involvement of the 1st plaintiff with the Property Commission. The present transaction was never the subject matter of discussion by the said
Committee until his resignation. The pious intention was also articulated by the 1st defendant in C. S. No. 1520 of 1991, in which the 1st
defendant obtained approval for leasing out an extent of 43.67 grounds to M/s. Parry and Company. The De Monte Trust presently maintains not
more than five small institutions for orphans and these too are mostly run by Religious Orders and not by the Trust proper. The reason for the
property lying fallow lies at the doorstep of the 1st respondent who could have utilized the property for charitable purposes. The allegation that
they are on a fishing expedition to thwart the utilization of the property and income of the Trust for pious and charitable work is an allegation in
poor taste and untrue. The plaintiffs understand that for many years, rent for that property had remained unpaid. At least five houses in the D''
Monte Colony have been leased out for a period of 99 years without Court approval, for paltry sums. The permission of the appropriate authority
in any case would not override the intention of the testator and the jurisdiction of this Court to examine the transaction, especially in the light of the
fact that even an offer of Rs. 150 crores was determined to be insufficient in the past by the 1st plaintiff. They have not alleged that all Bishops are
incompetent or have abdicated their duty. Their attempt is to redeem the image of the Church which has been tarnished in the matter of
administration of the property of the Trust.
5. The 4th defendant filed a separate counter and stated that the plaintiffs cannot be termed as person interested within the meaning of Section 92,
C. P. C. The Trust is not made as a party and there is no proper plaint. No leave could be obtained, that too ex parte. The leave has been
obtained without disclosing the correct, facts. No new person can be impleaded in the suit which has been filed after getting leave. The leave is
liable to be revoked.
6. The plaintiffs filed a reply affidavit denying the various averments.
7. Defendants 1, 2 and 7 filed separate counter affidavits in respect of Application No. 3668 of 2002. The suit had been filed u/s 92, C. P. C. for
the management of the properties left by the Will of John DeMonte. The plaint as originally filed is defective and no sanction u/s 92, C. P. C.
should have been granted. The plaintiffs are not persons interested in the Trust and have no locus standi to institute the suit. The plaintiffs cannot
rectify the defect of not impleading the necessary party by this application. The sanction already made cannot be extended to subsequent
amendments and impleading of the parties. No leave has been obtained for the purpose of filing a suit making the Trust as a party. The leave under
Clause 12 of Letters Patent read with Order 111. Rule 1 of Original Side Rules is for the very institution of the suit. Once leave of the Court has
been obtained for institution of a particular plaint, no new party can be impleaded in that plaint. The only remedy is to obtain leave of the Court
afresh and then file a suit making the Trust as a party. The defect is not curable since it goes to the root of the matter and jurisdiction. The plaintiffs
cannot cure the defect by trying to implead the Trust at this stage. The application is liable to be dismissed.
8. Heard the learned counsel for the parties.
9. The points that arise for consideration are
(1) Whether the leave granted to the plaintiffs in Application No. 567 of 2002 dated 27-2-2002 is liable to be revoked?
(2) Whether the Trust can be impleaded as the 10th defendant in the suit after getting leave to sue?
(3) To what relief?
10. Points :-- The plaintiffs filed Application No. 567 of 2002 to grant leave to them to initiate the suit u/s 92, C. P. C. This Court relying upon
R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, granted leave to the plaintiffs without notice to the defendants.
Now, the 2nd defendant has filed Application No. 3081 of 2002 to revoke the leave already granted on the ground that the Trust named John De
Monte Trust (hereinafter referred to as ''the Trust'') has not been made as a party to the suit, for which a scheme decree is sought for by the
plaintiffs. Moreover, the plaintiffs are not persons interested in the suit and, as such, they cannot maintain the same u/s 92, C. P. C. The plaintiffs
are said to be eminent persons in the society, but nothing is stated as to how they are persons interested so far as the Trust is concerned. No case
has been made out to sustain the suit u/s 92, C. P. C. The Trust has got power to lease out the property and it cannot be questioned by persons
who have no interest. Moreover, the 1st defendant already instituted O. P. Nos. 219 and 220 of 2002 seeking permission of the Court to lease
out the property under certain terms and conditions and, as such, only after getting approval of the Court, the lease of the property would be made
in favour of any party. The suit has been laid only to pre-empt the leasing of the property in favour of the 7th defendant. The 1st plaintiff was one of
the members in the Property Committee and he participated in various meetings and ultimately, tendered his resignation on 21-3-2000 and it was
also accepted. The suit itself is vexatious in nature. It is intended only to harass the defendants. Moreover, the suit is laid with an intention to
vindicate some personal grievance in public. The Trust cannot be now impleaded as a party after getting leave to institute the suit.
11. The learned counsel for the plaintiffs contended that there are clear averments in the plaint relating to the interest of the plaintiffs in the Trust. It
is seen from para 2 of the plaint that the first plaintiff is a distinguished Civilian belonging to Indian Administrative Service, Tamil Nadu Cadre and
retired as Secretary to the Government of India. He was the Secretary to Government of India, North Eastern Council, Shillong, Senior Executive
with the United Nations, Nairobi, Kenya and Industrial Adviser to Government of Bhutan and Special Officer, Chennai Corporation. He is a
resident of Anna Nagar since 1969. He is also a member of St. Luke''s Church, Anna Nagar and actively involved in all the social works. He is
presently Honorary Director of Centre for Urban Poverty Alleviation, a Non-Governmental Organization. He is also an advisor to the Foundation
for Fair Practices in Property Development, Chennai. He is a member of the Governing Body of the Delhi based Indo German Social Service
Society, supported by the Catholic Churches of Germany. He is also a Governing Body member of the YMCA College of Physical Education,
Chennai. The 2nd plaintiff is a Doctor of Science from Louvain, Belgium. He served for several decades at Indian Institute of Technology, Madras
and retired as Professor and Head of the Department of Chemistry. Throughout he has been actively involved in Community and Church activities
in various capacities. The 3rd plaintiff retired as Corporate Head of Training Division, Hindustan Petroleum Corporation Limited. He is also
involved in several activities concerned with the Arch Diocese of Madras Mylapore. He was the General Secretary of the Arch Diocesan Social
Service Organization. He has been the Vice-President of Parish Council from 1996-2001 and a long term office bearer.
12. The learned counsel for the plaintiffs also pointed out that during De Monte''s lifetime, he founded several religious, pious and charitable
establishment, (a) Hospital at Luz, (b) Charity House at Luz, (c) Church at Covelong, (d) Orphanage for Boys and Girls at Covelong, (e)
Seminary at Covelong, (f) School at Covelong, (g) Junior Seminary at Santhome and (h) Church at Poonamallee. He wanted a Hospital and
Charity House to be established at Covelong after his death, on the same plan as the one founded at the Luz and left special bequests for the same
in the Will. He also left bequests for Saint Mary''s Church, etc. Sir John De Monte left a last Will and Testament on 19-7-1820. Subsequently, a
Codicil to the Will was signed and sealed on 25-4-1821. Through the Will, he had bequeathed vast extent of properties to the Catholic Church.
He had provided sufficient funds for running the Pious and Charitable Institutions founded by him. By Clause 33 of the said Will, he had appointed
the Bishop or Vicar General of Santhome, for the time being and successors to be the Executors and Trustees of the Will along with others. A
Committee of Syndics should be nominated and appointed actually who are to act jointly with the Bishop or Vicar General for managing and
conducting the affairs. The plaintiffs have been able to identify two properties-Benz Garden and De Monte Colony because of their size and
prestigious locations. It appears that a substantial portion of the Benz Garden property has been alienated in violation of the wishes of the founder.
C. S. No. 1520 of 1991 was filed by the former Archbishop of Madras-Mylapore in the capacity of the Sole Trustee for necessary sanction and
approval of the Development Agreement entered into with M/s. Parry and Co. By an order dated 20-12-1991, an extent of 43.67 grounds was
given to M/s. Parry and Co. and the rest of the 212 grounds were retained by the 1st defendant. All the five bungalows and the appurtenant land
had initially been leased out for a 30 year period to M/s. Parry and Co. and on the expiry of the period, M/s. Parry and Co. and the then
Archbishop had entered into a Memorandum of Understanding, whereby M/s. Parry and Co., had paid the Arch Diocese Rs. 7.5 crores as
consideration for 99 years lease on 5 bungalows. During 1997, an Ad hoc Committee was constituted for advising the 1st defendant on the
development of the Benz Garden property. Advertisement has been made in newspaper calling for Project Management Consultants for
development of the property. The Property Management Committee considered the offers made by various parties. The 1st plaintiff realized that
the proposal to alienate the property for 99 years was in contravention of the intentions of the Testator. In June 2000, the 6th defendant was
transferred out and in his place the 4th defendant was appointed as Properties In charge. The 7th defendant was put in possession of one of the
bungalows in Benz Garden. On 19-10-2000, the 1st plaintiff also wrote to the 1st defendant to adopt transparent process in managing the
properties, not to permit occupation of the Trust property by the 7th defendant. There are moves to alienate more than 212 grounds to some
individuals in flagrant violation and against the wishes of the founder. The plaintiffs, therefore, filed the suit for framing an appropriate scheme for
the administration of the properties left in Trust by the founder, by reconstituting the Trust, by appointing any fit and proper person as Trustee and
for other reliefs. Section 92, C. P. C. relates to Public Charities and Sub-seetion (1) reads as follows :--
In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the
direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an
interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court, of original
jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any
part of the subject-matter of the trust is situate to obtain a decree--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his
possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
13. It is clear from the aforesaid section that for the administration of any such Trust, the Advocate General or two or more persons having an
interest in the Trust and having obtained the leave of the Court may institute a suit. The language employed ""two or more persons having an interest
in the Trust"" is a matter to be borne in mind before coming to a conclusion as to whether the leave granted to the plaintiffs is a proper one, Under
the circumstance, the burden is upon the plaintiffs to establish that the plaintiffs are persons having an interest in the Trust and thereafter only, they
can obtain leave of the Court. The allegations in the plaint only indicated that the plaintiffs are respectable persons of the locality and involved in
some social functions. Apart from that, there is nothing to indicate that they are persons having an interest in the Trust and admittedly, none of them
are members of the Trust. At one point of time, the 1st plaintiff was a member of the Property Committee, but subsequently, he has tendered his
resignation. These facts would only indicate that prima facie, it cannot be said that they are interested in the Trust. Even assuming that the 1st
plaintiff was a member of the Property Committee at one point of time, the minimum required is two or more persons should have an interest. In
any event of the matter, the materials projected by the plaintiffs did not positively establish that out of the three plaintiffs, any two of them are
having an interest in the Trust.
14. The learned counsel for the plaintiffs relied on the decision reported in Committee of Management of Pachaiyappa''s Trust Vs. Official Trustee
of Madras and Another, , a decision of the Apex Court, wherein it is observed as follows :--
In the matter of grant of leases and licences and award of contracts by the executive, the decisions of this Court require the Authorities to apply
standards or norms which are not arbitrary, irrational or irrelevant. People expect much higher standards from the judiciary, and rightly so. It would
be a sad day if an impression gains ground that the judiciary is not free from the malaise that afflicts other fields of State activity"".
There is no dispute about this principle, but it mainly relates to the merits of the case. For the purpose of granting leave, it is not necessary to go
into the question, whether there was mismanagement on the part of the existing trustees or whether there was any siphoning of funds, etc. As
adverted to, only if two or more persons, especially they have got any interest in the Trust property, then alone Section 92, C. P. C. can be
invoked. All the other allegations levelled by the learned counsel for the plaintiffs relate to the merits of the matter and that will have no bearing to
grant any leave. Apart from that, admittedly the 1st defendant had already filed original petitions before this Court seeking permission to lease out
the property and, as such, the Court will definitely look into all the aspects, namely, whether granting of lease would be advantageous or
disadvantageous to the Trust, etc. There is time enough to consider the merits of the matter.
15. The learned senior counsel for the 7th defendant relied on Ramachandra Iyer v. Parameswaran Munbu AIR 1919 Mad 384 as follows :--
The right to worship in a temple is not such an ""interest"" as will give, the worshipper a right to sue u/s 92, Civil Procedure Code, The interest
required in the relator must be a clear or a present and substantial and not a remote, fictitious or purely illusory interest; it must be an existing
interest and not a mere contingency. The ''question whether any given person has or has not an interest as so defined is a pure question of fact
which the Court should decide on a consideration of the particular circumstances of each case. ....... The ''interest'' which is required of a person
wishing to sue u/s 92, Civil P. C., must be a substantial and not a sentimental or a remote interest"".
This decision is applicable to the case on hand.
16. Reliance is also placed on Shollapuriyamman Temple Trust v. A. S. A. Temple Association 1997 AIHC 471 that suit filed by plaintiffs on
ground that Trust was being mismanaged by trustees and for declaration that plaintiffs were entitled to vesting of trust property and consequential
reliefs. Plaintiffs neither members nor persons having interest in trust, have no locus standi to institute suit and order granting leave to institute suit
u/s 92 is not proper.
17. It has been held in Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, that ""mere residents 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 has also been held in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and
others, that notice to defendants before granting leave and the Court not bound to give such notice although as rule of caution, it should normally
give such notice.
18. It has been held in S. Guhan and Others Vs. Rukmini Devi Arundale and Others, that in a suit for framing of Scheme for proper administration
of trust, out of six trustees, only four impleaded as parties and the suit was not filed on behalf of the trust. It was held, trust being absolutely
necessary party having not been impleaded as party to proceedings, suit as filed was liable to be dismissed.
19. It has been held in Benoy Shankar Dhandania and Others Vs. Choteylal Dhandania and Others, as follows :
Where a defendant is added fresh lease must be obtained even if leave had been obtained when the suit was originally filed. It is contended that
there was no change in the cause of action. Even intended to proceed in the suit and to obtain a decree, the obtaining of the leave is imperative,
because it is the foundation of the jurisdiction of the Court. The Court gets jurisdiction to decide the suit against the parties only if it grants leave
which is a condition precedent. No leave was obtained to proceed against the newly added defendants and it follows that the Court never got any
jurisdiction to make any decree or order against them in the suit"".
20. It has been held in Kshitish Kumar Som Vs. State of Bihar, wherein it is observed as follows :--
Where by amendment of a plaint, a cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In
such a case, no amendment can be ordered if it requires leave to be granted under Clause 12, at the time of the amendment.
It follows that leave under Clause 12 cannot be granted in such a case, at any stage after the institution of the original suit.
But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so
added. Consequently, if the cause of action against the added party requires leave under Clause 12, it is open to the Court to grant such leave, if
asked for at the time of the amendment. In fact, if such leave has not been asked for or obtained in such a case, the Court has no jurisdiction to
entertain the suit against such an added defendant"".
This decision is applicable to the case on hand. Now, the plaintiffs want to implead the Trust as a necessary and proper party, but leave had
already been obtained without the Trust being a party.
21. The learned senior counsel for the 7th defendant relied on C. Kalahasti v. R. Sukhantharaj, 1975 (88) Mad LW 577 as follows:
The general interest a person, as a Hindu, may have in a temple is that he might possibly worship in the temple, would not by itself be sufficient to
satisfy the requisite that he must be a person who has an interest in the trust. In other words, something more than the generality of interest, which
he had, should be established as a kind of a special factor to establish interest as is required by Section 92"".
22. It has been held in P. Sivagurunatha Pillai and Another Vs. P. Mani Pillai (Died) and Others, that in a suit for framing of scheme -- interest
essential for maintainability of suit --mere residence in locality is not enough"".
23. It is, therefore, clear from the aforesaid decisions and discussion that simply because the plaintiffs are respectable persons of the locality and
they have taken part in social activities, they are not sufficient to come within the category of ''persons interested'' in the Trust as contemplated u/s
92, C. P. C. Under the circumstance, I am of the view that the leave already granted is liable to be revoked on the ground that the plaintiffs are not
persons interested in the Trust. The other contentions raised by the learned counsel for the plaintiffs mainly relate to the merits of the matter.
According to the plaintiffs, there was mismanagement of the Trust and properties are sought to be leased out or sold for a lesser price. There was
already an offer for higher price to lease out the property and now the offer given by the 7th defendant is a lesser one. As adverted to, two original
petitions have been filed by the first defendant, seeking permission of the Court and the Court will naturally take care of the entire materials and
permission would be given only if the Court is satisfied that the lease of the property would be beneficial or advantageous to the Trust.
24. The plaintiffs filed Application No. 3668 of 2002 to implead the Trust as the 10th defendant on the ground that it is a necessary and proper
party. There is no dispute that the Trust is necessary and proper party, but the only question is whether the Trust can now be impleaded after
getting the leave without making the Trust as a party to the suit. The learned counsel for the plaintiffs contended that, by mistake the Trust is not
made as a party previously and now, the defect can be cured by impleading the Trust. This is mainly opposed by the contesting defendants alleging
that the ex parte order of leave was obtained without impleading the Trust. Once leave of the Court has been obtained for institution of a particular
plaint, no new party can be impleaded in that plaint. The only remedy is to obtain leave of the Court afresh and then file a suit making the Trust as a
party. The non-impleading of the Trust goes to the root of the matter. Under the circumstance, I am of the view that although the Trust is a
necessary and proper party, the impleading should have been done even in the inception before getting leave. Now, after getting leave, the plaintiffs
want to cure the defect and this cannot be accepted and it is nothing but putting the cart before the horse. It is always open to the plaintiffs, if they
are really interested persons in the Trust, to implead all necessary parties and file a fresh suit. If the Trust was already made a party even in the
original plaint, then it is quite possible that ex parte leave also could not have been granted to the plaintiffs. Now, having obtained an ex parte leave,
the plaintiffs cannot be allowed to cure the material defect by allowing the impleading application, I am of the view that the plaintiffs cannot take
advantage of their own mistake and claim to implead the Trust on the ground that it is a necessary and proper party. Although the Trust is a
necessary and proper party, considering the fact that the plaintiffs failed to implead the Trust at the earliest point of time, now cannot be permitted
to implead the Trust to cure the illegality. Hence, the points are answered accordingly.
25. For the reasons stated above, Application No. 3081 of 2002 is allowed and the leave already granted is vacated. Application No. 3668 of
2002 is dismissed.
