Kalavacherla Bapiraju vs Ramacharandas Bavajee

Madhavan Nair, J.—The 2nd plaintiff is the appellant. The appeal arises out of a suit instituted by the plaintiffs u/s 92, Civil Procedure Code.

Prior to the institution of the suit, the 1st plaintiff applied under the provisions of Act XIV of 1930 to the District Court to obtain orders from the

Court under Sections 3 and 4 directing the trustee to furnish accounts and give the necessary information about the trust. The learned District Judge

repeatedly gave time to the defendant to produce accounts, but ultimately the order of the Court was not complied with and u/s 6 he passed an

order giving permission to institute a suit u/s 92, Civil Procedure Code. After obtaining such permission the other two plaintiffs joined the 1st

plaintiff and instituted this suit against the trustee. In the course of the trial, the 1st plaintiff at whose instance permission was obtained from the

District Judge dropped out of the suit and later on the 3rd plaintiff also abandoned it. So, the only person who proceeded with the suit was the 2nd

plaintiff. In the suit, various reliefs were claimed. In paragraph 12(a) an inventory was asked for from the defendant. In paragraph 12(b) the

defendant was sought to be removed and it was also requested that it should be declared that he is not the rightful mahant. In paragraph 12(c) a

scheme was sought to be framed for the management of the properties and accounts were also asked to be rendered by the defendant-trustee.

The learned Subordinate Judge dismissed the suit without going into the merits. He held, that the plaintiff who obtained permission to institute the

suit from the District Court having dropped out of the proceedings it was not competent for the other plaintiffs to proceed with the suit; and he also

held that since the reliefs claimed in the suit exceeded and went beyond the particular relief with respect to which sanction was given by the District

Judge the suit was incompetent.

In appeal it is argued that the learned Subordinate Judge''s decision on both these points is wrong. The first question is whether the suit

contemplated by Section 6 of Act XIV of 1920 cannot be instituted by persons other than the particular individual who obtained the permission. It

is true that under Sections 3, 4 and 5 the application should be made by a person interested in the trust. But once a breach of trust has been

committed by the trustee by his refusal to produce the accounts, then Section 6 says that a suit so far as it is based on such failure may be instituted

without the previous sanction of the Advocate-General. The section nowhere says that such a suit should be instituted by the person who made the

application under Sections 3 and 4 of Act XIV of 1920. u/s 92, Civil Procedure Code, the ""previous sanction of the Advocate-General is required

for the institution of a suit contemplated by that section. u/s 6 once the breach referred to in that section is committed by the disobedience of an

order passed by the District Judge, then a suit may be instituted u/s 92, Civil Procedure Code. The necessity for obtaining the sanction of the

Advocate-General is thus removed u/s 6; and it does not say anywhere that the suit should be instituted only by the person who secures the order

from the District Court, in the circumstances mentioned in the previous sections. In Umrao Singh Vs. Har Prasad, it was held that when the order

of the District Judge for filing of accounts u/s 5 of the Charitable and Religious Trusts Act has not been complied with, there is a breach of trust by

virtue of Section 6 which could be made the basis of a suit u/s 92, Civil Procedure Code. It should, however, be noted that the reliefs claimed in

the suit u/s 92 filed in pursuance of permission obtained u/s 6 must be confined to those which arise out of the failure to produce the accounts and

are connected with it. In this suit all the reliefs claimed arise out of the failure to produce accounts except the one regarding the declaration that the

defendant is not the rightful mahant. Such a relief has nothing to do with the failure to produce the accounts and is not in any way connected with it.

We think all the other reliefs can be based on the defendant''s failure to produce the accounts; and the suit cannot therefore be said to be

incompetent as asking for reliefs which do not come within the scope of the suit contemplated by Section 6 of Act XIV of 1920.

Then it is said that two of the plaintiffs having dropped out it is not competent for one plaintiff alone to proceed with the suit u/s 92, Civil

Procedure Code. This point has already been decided in this Court, Hazarat Kibulai Sayyed Gulam Gouse Sha Sahib Kadiri Vs. Dost

Mohammad Khan Sahib (dead) and Another, , where it was held that a suit u/s 92, CPC or an appeal arising out of such a suit does not abate on

the death of one of the plaintiffs who obtained sanction for instituting the suit. It cannot therefore be said that the present suit is incompetent

because there is only one person left to conduct the suit.

For the above reasons we hold that the decision of the learned Judge cannot be sustained. We set aside the decision and remand the suit for

disposal according to law. The enquiry into the case will be confined as already pointed out to all the reliefs except the one contained in the first

part of Clause (b) in paragraph 12, viz., that it be declared that the defendant is not the rightful mahant. Costs of the appeal will abide the result.

We do not interfere with the costs of the Lower Court.

The Court-fee may be refunded.