Sinnamani & ANR. Vs.
G. Vettivel & Ors.
[Civil Appeal No.
4368 of 2012 @ Special Leave Petition (Civil) No.11825 of 2008]
[Civil Appeal Nos.
4372-4386 of 2012 @ Special Leave Petition (Civil) No.6283-6297 of 2008]
J U D G M E N T
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.96of 2002 as a civil suit
and be tried accordingly.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. “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
b. To trace the
fissipations effected on the schedule Trusts by the I defendant and his
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.”
the pendency of the OP, respondent Nos.1 to 14 and 16filed 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.
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 purpose of paying the Court Fees.
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.
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 11CPC 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 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 beenpreferred.
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 suomotu 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.
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) 7SCC 39 and submitted that the
Trust O.P. cannot be converted as a civilsuit.
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
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
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 indication as to the manner in which suit has to be
instituted. Section26 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.
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 him discharged from his 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.”
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.
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.