Beesa Porwal Jain Shwetamber Teerth Sagodhia and others vs Poonamchand Mishrimal and others

H. G. Mishra, J.

This order shall also govern the disposal of Civil Revision No. 633 of 1978 (Beesa Porwal Jain Shwetamber Teerth Sagodhia Registered Public Trust, Ratlam & Ors. v. Poonamchctnd & Ors.), as the main question involved in both the revisions is identical.

This revision is directed against the order dated 24-4-1978, whereby the learned trial Judge has allowed the applications submitted by the plaintiff-non-applicants I, 2 and 3, one under Order 1, Rule 10 (2), CPC for deletion of the Registrar of Public Trust from the array of defendants and the other under Order I, Rule 8, CPC seeking permission of the Court to sue for the benefit of all persons belonging to Shwetamber Moorti Pujak Jain Samaj of Ratlam, have been allowed. The other revision No. 633 of 1978, is directed against the order dated 24-4-1978, whereby issues Nos. 1 to 6 have been decided in favour of the plaintiffs.

No exhaustive statement of facts is necessary for the decision of these revisions. Suffice it to state that in the suit as instituted the Registrar of Public Trust, district Ratlam, was also impleaded as a defendant. The suit was brought for challenging the findings recorded by the Registrar u/s 8 of the Madhya Pradesh Public Trust Act, 1951 (for short, the Act) in his order dated 31-3-1975, registering the Trust in the name of the Beesa Porwal Jain Shwetamber Teerth Sagodhia Registered Public Trust Board, Ratlam, on cause of action laid in details in the plaint. The plaintiffs claimed the relief of declaration inter alia to the effect that the aforesaid findings deserve to be set aside and the Trust in question as well as the entire property belonging to it deserve to be declared as that of Shwetamber Moorti Pujak Jain Samaj, Ratlam. The plaintiff-non-applicants I, 2 and 3 also submitted an application under Order I, Rule 8, CPC for grant of permission to sue in representative capacity.

The defendant-applicants-herein as well as the defendants 4, 5 and 6 resisted the claim of the plaintiffs inter alia on the grounds that the plaintiffs are not entitled to grant of permission under Order 1, Rule 8; that in absence of notice u/s 80 (1) to the Registrar of Public Trust, the suit is not maintainable; that the plaintiffs have no right to sue; that the suit as framed is not maintainable; that the Court has no jurisdiction to entertain the suit; that the Court-fees paid on the relief claimed is inadequate and that the suit is time barred.

Faced with this situation the plaintiffs submitted an application under Order 1, Rule 10 (2), CPC praying for deletion of the Registrar of Public Trust from the array of defendants on the ground that his impleadment is not necessary.

Now, the Court has granted by the order, which has been challenged in this revision, the applications submitted by the plaintiffs under Order 1, Rule 8 and under Order 1, Rule 10 (2), CPC and by the other order, which has been challenged in the other revision, issues 1 to 6, which were framed by the Court in the light of the aforesaid objections raised by the defendant-applicants, have been decided in favour of the plaintiffs.

In this revision it was contended by Shri M. L. Dhupar, learned counsel for the applicants that (a) the impugned orders have been passed by the Civil Court prior to issuance of notice to the State Government through the Registrar of Public Trust. Accordingly, they are without jurisdiction, and (b) that on merits the impugned orders are contrary to law and without jurisdiction.

S. L. Garg, learned counsel for the non-appJicants argued in support of the impugned orders. Having heard the learned counsel for the parties I have come to the conclusion that these revisions deserve to be allowed.

Section 8 of the Act reads as under:-

Section 8. Civil Suit against the finding of the Registrar-(1) Any working trustee or person having interest in a public trust or any property found to be trust property, aggrieved by any finding of the Registrar u/s 6, may within six months from the date of the publication of the notice under sub-section (1) of section 7, institute a suit in a civil Court to have such finding set aside or modified.

(2) In every such suit, the Civil Court shall give notice to the State Government through the Registrar and the State Government if it so desires, shall be made a party to the suit.

(3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision."

(Emphasis supplied)

The suit giving rise to the present revision is one brought in exercise of the right conferred by sub-section (1) of section 8. Now, undis-putedly, the trial Court has passed the impugned orders prior to issuance of notice to the State Government, as envisaged by sub-section (2) thereof. The provisions placed in the sub-section (2) enjoin upon the Court to give notice to the State Government through the Registrar and clothes the State Government with a right to be added as a party to the suit, if it so desires. The option, whether to get itself impleaded or not, no doubt, vests in the State Government, but there is no option left to the Court in the matter of issuance of notice. The use of the word "shall" in sub-section (2) of section 8 is indicative of the fact that issuance of notice is mandatory.

Now, by its very nature the stage at which section 8(2) has to operate is the stage of institution of the suit. The question of impleadment of party is essentially a matter prior to trial of the suit on merits. Accordingly, it is implicit in the section 8(2) that the notice should be issued at the initial stage of the suit so that if the State Government elects to be added as a party, it may be added and the suit may thereafter proceed to its trial stage. I am fortified in this view by the ratio of Swami Vidyanand Saraswati v. Hazarilal Choubey 1966 M P L J 106, wherein Tare J. (as he then was), expressed himself on the point thus:

The decision on the preliminary issues without following the procedure laid down by section 8(2) of the M. P. Public Trusts Act, 19511 was not only improper but also illegal. Sub-section (2) of section 8 lays down that in every such suit, the civil Court shall give notice to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit. But the provision in respect of the notice to the State Government through the Registrar is mandatory, and no question either preliminary or on merits ought to be decided without complying with the said mandatory provision. The decision of preliminary issues was, therefore, premature and liable to be set aside.

Since the trial Court proceeded to pass the impugned orders without issuance of notice envisaged by section 8(2) of the Act, it has to be held that it did not acquire jurisdiction to pass them.

Faced with this situation, Shri Garg, learned counsel for the non-applicants contended that service of the writ of summons of the suit having been effected on the Registrar of Public Trust on 15-10-1975, it should be regarded as sufficient compliance for the present purposes. The contention so advanced by Shri Garg appears to be attractive on the face of it, but is devoid of substance. The summons issued to the Registrar, who was impleaded as defendant No. 7 in the suit, cannot be regarded as sufficient compliance of section 8(2) on the short ground that "what it envisages is notice to the State Government through the Registrar. The summons sent was not to the State Government through the Registrar, but only to the Registrar himself. Only if a notice is given to the State Government through the Registrar, it can be regarded to be in compliance of the mandate of the law. The Act by section 8 creates a new jurisdiction, provides for a new procedure and prescribes new remedies. It also provides for the procedure to be followed by the Court after institution of the suit. In such a situation, the power can be exercised in the mode prescribed and not in any other manner. I am fortified in this view by the ratio of the case of AIR 1936 253 (Privy Council) wherein it has been held that "the rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performances are necessarily forbidden."

Accordingly, by pointing out to issuance of the writ of summons of the suit and service thereof on the Registrar of Public Trust as defendant No. 8, it cannot be successfully contended that it constitutes compliance of the law.

In view of the aforesaid discussion, without entering into the merits of the order passed, it has to be held that the trial Court did not acquire jurisdiction to pass the impugned orders without first complying with the law in the manner envisaged by section 8(2) of the Act.

Accordingly, the revisions succeed and are hereby allowed. The impugned orders are set aside. The trial Court will now proceed in accordance with law. There shall be no order as to costs. The records of the Courts below be remitted back within a fortnight from today.