SUDHIR G. ANGUR AND ORS.versusM. SANJEEV AND ORS.

                      SUDHIR G. ANG UR AND ORS.                                A.
                                  v.
                        M. SANJEEV AND ORS.

                            OCTOBER 27, 2005

    (S.N. VARIAVA, DR. AR. LAKSHMANAN ANDS.H. KAPADIA, JJ.]                    B

      Mysore Religious and Charitable Institutions Ac!, 1927; Ss. 2(1), 17,
18, 19, 20, 21, 37, 38, 40 and 40A/Civil Procedure Code. 1908; Section 921
Civil procedure Code, 1911; Section 92:
                                                                               c
       Filing of a suit under Section 92 CPC for cancellation of lease of trust
 granted in favour of the trustees and for their removal-On grounds of
forgery• and mismanagement of trust properties-Jurisdiction a/Civil Courts-
 Held: Jn terms of the provisions of the Act, Muzrai officer could pass only
 ancillwylnecessary orders in respect of the matters so specified that too after D .
 obtaining previous sanction of the Government after conducting an enquiry
 in connection thereto-An enquiry contemplated under the Act is a summary
 enquiry1--Such enquiries do not bar jurisdiction of Civil Courts-Trial Court
 was right in holding that serious allegations as alleged in the suit can never
 be enquired into in a summary manner by a Muzrai Officer under the Mysore
Act but could only be gone into by a Civil Court as it requires framing of E
 issues and it could only be determined on the basis of an evidence-Besides,
Mysore Act repealed-Hence, the suit in question could be entertained by the
 Court.

      Maintainability of Application for rejection of plaint after grant of
leave-Held: Not maintainable since applicant lost opportunity of opposing F
grant of leave.

      The respondents/petitioners instituted a suit before the Principal City
Civil Court under Section 92 of the Code of Civil Procedure against the
appellants alleging forgery of a letter. They have prayed for cancellation of G
Lease of the Trust properties granted in favour of Appellants 2 &3 and also
for their removal as trustees. The appellants filed an application for rejection
of the Plaint under Order VII Rule 11 C.P.C. According to them the suit was
not maintainable by virtue of Section 40 of the Mysore Act. The application
was dismissed by the trial Court holding that the question whether the Mysore
                                      851                                        H
     852                    SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A Act applied or not would have to be decided on evidence. The Revision Petition
     was also dismissed by the High Court. Hence the present appeal.

           Appellants contended that the Mysore Act is a complete Code in itself;
    that all matters/issues raised could only have been raised in an enquiry under
    Section 17 of the Act and could only have been dealt with by an Order under
B   Section 18 of the Act by the Muzrai Officer; that by virtue of Section 40 of
    the Act the suit was barred; that Section 18 of the Act is wide enough to cover
    all disputes sought to be raised in the suit; that under Section 18(5) the Muzrai
    Officer has the power to pass all ancillary and necessary orders as may be
    required in accordance with justice and equality; that in respect of trusts
C   covered by the Mysore Act the only remedy available was to apply to the Muzrai
    Officer for an enquiry under Section 17 and for an Order under Section 18
    of the Act, and if the applicant is aggrieved by any order passed by the Muzrai
    Officer, then a suit could be filed; and that Section 40 categorically barred
    the jurisdiction of a Civil Court in all matters in which a Muzrai Officer had
    power to pass any Order or take any action.
D
           Dismissing the appeal, the Court

          HELD: 1.1. The Mysore Religious and Charitable Institutions Act has
    been repealed in the year 2003. Thus, even presuming the application under
    Order VII Rule 11 was required to be allowed, even then the Plaint would
E   only have to be returned for presentation to the proper Court. Proper Court
    would be the Court of the Principal City Civil Judge, which is the same Court.
    Thus it would be an idle formality to have the Plaint rejected to be presented
    again to the same Court. [855-E, F]

           1.2. An enquiry contemplated under Section 17 of the Mysore Act is a
F summary enquiry of the type held under the various Land Revenue Codes.
  That it would be a summary enquiry is clear from Section 37 of the Mysore
  Act. Such summary enquiries do not bar jurisdictions of Civil Courts. Even
  otherwise, it can not be said that Section 18(5) of the Act allows the Muzrai
  Officer to deal with cases where serious allegations of fraud and/or forgery
G are made. Section 18(5) merely enables the Muzrai Officer to pass ancillary
  or necessary orders in respect of matters covered by sub-sections 1 to 4 of
  the Section. The enquiry has to be in respect of matters laid down in sub-
  sections 1 to 4 of Section 18. Further an order under Section 18 can only be
  passed by the Muzrai Officer with the previous sanction of the Government..
  This also shows that these provisions are not meant to be a substitute for
H judicial proceedings. 1859-E, F, G)
                      SUDHIR G. ANG UR v. M. SANJEEV                        853
      1.3. There are serious allegations of forgery, fraud, diversion of trust A
properties in favour of Appellants 2 & 3 and the brothers of the 1st Appellant.
Such serious allegations can never be enquired into, in a summary manner
by a Muzrai Officer in the type of enquiry contemplated under Section 17 of
the Mysore Act. These are matters which can only be gone into by a Court.
The trial court was thus right in holding that these are matters which would
require is.sues to be framed and which were required to be determined on B
evidence. (859-H; 860-AI

       2.1. Section 40A of the Mysore Act categorically provides that a suit
under Section 92 of the Code of Civil Procedure, 1911 is not barred, even
though an order may have been passed by the Muzrai Officer or by the C
Government. If a suit is not barred after an Order is passed, then it obviously
follows that the suit under Section 92 CPC will not be barred when no such
order has been passed. Undoubtedly, Section 40A refers to Section 92 ofCPC,
1911, which was prevailing in the Mysore State when the Mysore Act was
enacted. At that time, the Civil Procedure Code, 1908 did not apply to Part B
States like the Mysore State. However, by the Code of Civil Procedure D
(Amendment) Act, 1951 the Civil Procedure Code, 1908 was made applicable
to the whole of India including Part B States. Thus, with effect from 1st of
April, 1951 the Civil Procedure Code, 1908 became applicable even to the
State of Mysore and the Code of Civil Procedure, 1911 (as prevailing in
Mysore) got repealed. Thus, now in Section 40A of the Mysore the Act E
reference to Section 92 ofCPC, 1911 would mean Section 92 ofCPC, 1908.
It is therefore clear that in 1999 when tlle suit was filed, suits under Section
92 of the Civil Procedure Code, 1908 were not barred. (860-8, C, D, Fl

      2.2. Once leave to file the suit was granted the question of rejecting the
Plaint under Order VII Rule 11 did not arise. An application for rejection of      p
the Plaint should have been made prior to the leave having been granted or at
the time when the Appellants opposed grant of leave. Having lost in their
opposition to grant of leave it was not open to the Appellants to then apply for
rejection of the Plaint under Order VII Rule 11 CPC. (860-G(

      3. It is a law on the date of trial of a suit which is to be applied. In the G
case of Shiv Bhagwan v. Onkarmal, it was rightly held that no party has a
vested right to a particular proceeding or to a particular forum; that it is well
settled that all procedural laws are retrospective unless the Legislature
expressly states to the contrary; that the procedural laws in force must be          ,
applied at the date when the suit or proceeding comes on for trial or disposal; H
       854                     SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

· A that a Court is bound to take notice of the change in the law and is bound to
       administer the law as it was when the suit came up for hearing. It has been
       held that if a Court has jurisdiction to try the suit, when it comes on for
       disposal, it then cannot refuse to assume jurisdiction by reason of the fact
       that it had no jurisdiction to entertain it at the date when it was instituted. In
       view of these observations and that the Mysore Act then stands repelled, it
   B   could not be denied that the Court has jurisdiction to entertain this suit.
                                                                  (860-H; 861-A, B, CJ

             Shiv Bhagwan v. Onkarmal A.l.R., (1952) Bombay 365, approved.

             3. Respondent No. 4, the concerned Trust, is not only a proper party but
   C a necessary party. The whole dispute relates to the management of the trust
       and the properties of the trust. By deleting Respondent No. 4 the Appellants
       have deleted a proper and a necessary party. For that reason also, the Appeal
       could be dismissed. [861-D, E)

             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2273 of2002.
   D
             From the Judgment and Order dated 4.10.200 I of the Karnataka High
       Court in C.R.P. No. 3295 of 200 I.

            K.K. Venugopal, K.T. Anantharaman, Jashan Brara and Vasudevan
       Raghavan for the Appellants.
   E
            G.L. Sanghi, V.A. Mohta, Dinesh Gaonkar, Nilakanta Nayak, Vikas Singh,
       A.K. Upadhyay and E.C. Vidya Sagar for the Respondents.

             The Judgment of the Court was delivered by

   F        S. N. VARIAVA, J. This Appeal is against the Judgment of the Karnataka
       High Court dated 4th October, 200 I.

             Briefly stated the facts are as follows:

             I st Appellant is the husband of the 3rd Appellant. Appellants 2 & 3 are
   G the father and mother of the I st Appellant. 4th Respondent is a educational
       trust which has been brought into existence with the Ist Appellant as the
       Founder Chairman/Trustee along with Respondents as fellow Trustees. Disputes
       having arisen between the Ist Appellant and his wife (3rd Appellant) resulted
       in a number of litigations including this litigation. According to the Appellants,
       Respondent No. 3 resigned from the trusteeship of the 4th Re~pondent Trust
   H   on 11th February, 1999. Appellants 2 and 3 were inducted as additional
              SUDHIRG. ANG UR v. M. SANJEEV [VARIAVA.J.]                 855
Trustees on !Sh March, 1999. On !st July, 1999 Respondents I & 2 were A
removed from trusteeship. On 28th September, 1999 the Respondents instituted
Suit No. 8355/99 before the Principal City Civil Judge, Bangalore under Section
92 of the Code of Civil Procedure claiming that there was forgery of the
purported letter dated I Ith February, 1999 by which Respondent No. 3 had
supposedly resigned. Allegation of mis-management of the 4th Respondent B
Trust and its properties are also made. Removal of the Appellants as trustees
is prayed for. A prayer is also made for cancellation of a Lease of the Trust
properties granted in favour of Appellants 2 & 3.

      Under Section 92 of the Civil Procedure Code, 1908 a suit can only be
filed by the Advocate General or by two or more persons having an interest C
in the trust after having obtained the leave of the Court. The Appellants
opposed grant of leave. Their submissions were not accepted and the Court
granted leave on I0th November, 1999. The Revision filed by the Appellants
was dismissed on I Ith February, 2000. Whilst contesting grant of leave the
Appellants did not contend that a suit under Section 92 was not maintainable
in view of the provisions of the Mysore Religious and Charitable Institutions D
Act, 1927 (hereinafter referred to as the Mysore Act).

      After the Revision was dismissed the Appellants applied for rejection
of the Plaint under Order VII Rule 11 C.P.C. According to the Appellants the
suit was not maintainable by virtue of Section 40 of the Mysore Act. This
application was dismissed by the trial Court on 6th August, 200 I. The trial   E
court held that the question whether the Mysore Act applied or not would
have to be decided evidence. The Appellants filed a Revision before the High
Court of Kamataka which has been dismissed by the impugned Judgment.

      At this stage, it must be mentioned that the Mysore Act has been F
repelled in the year 2003. Thus, even presuming the application under Order
VII Rule 11 was required to be allowed, even then the Plaint would only have
to be returned for presentation to the proper Court. Now the proper Court
would be the Court of the Principal City Civil Judge, Bangalore which is the
same Court. Thus it would be an idle formality to have the Plaint rejected to
be presented again to the same Court. In such a case no question of limitation G
would arise as the time taken in the earlier suit would get excluded. In the
above view no further consideration was necessary. However, as the matter
has been fully argued, we deal with all the contentions.

        Mr. Venugopal submitted that the Mysore Act is a complete Code in
itself. He submitted that all matters/issues raised could only have been raised H
    856                    SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A in an enquiry under Section 17 and could only have been dealt with by an
    Order under Section 18 of the Mysore Act by the Muzrai Officer. He submitted
    that by virtue of Section 40 of the Mysore Act the suit was barred. In order
    to consider this submission it is necessary to set out the relevant provisions
    of the said Mysore Act. Sections 2(1), 17, 18, 19, 20, 21, 37, 38, 40 and 40A
    of the Mysore Act read as follows:
B
               "2(1 ). "Religious or Charitable Institution" includes an endowment
           for the carrying out of any religious or charitable object.

                17. When it is brought to the notice of the Muzrai Officer that any
           religious or charitable institution dedicated for the benefit of the
C          public or a defined section of the public or any property pertaining
           thereto is being grossly mismanaged, he may institute an eriquiry into
           the truth of the allegations against the persons in possession and
           management of the property or the institution.

               18. If it is proved that there has been gross mis-management of
D          the institution or of any property pertaining thereto or any
           misapplication or misappropriation of any part of the property, or any
           breach of trust in respect thereof, the Muzrai Officer may, with the
           previous sanction of the Government.

               (I) take the institution under the management of Government;
E
               (2) order that the property which has been mismanaged or
           misappropriated shall be delivered back either to the institution or to
           the possession of the Government on behalf of the institution;

              (3) obtain security for the proper performance of the trust or
F          management of the property;

              (4) frame a scheme for the proper management of the institution
           or management of its property and the application thereof; and

               (5) pass such other ancillary or necessary orders as the case may
G          require in accordance with justice and equity.

                 19. (1) where property belonging to a religious or charitable
            institution has been wrongfully alienated or transferred by way of
            sale, barter, mortgage, lease or otherwise the Muzrai Officer may,
            within six years from the date of such alienation or transfer, give
H           notice to the alience or transferee and hold a summary enquiry in
       SUDHIR G. ANGUR v. M. SANJEEV [VARIAVA.J.]                  857
accordance with the provisions of Chapter XII of the Mysore Land A
Revenue Code and direct that possession of such property be restored
to the institution or that the Government assume possession thereof
on behalf of the institution;

     (2) when property belonging to a religious or charitable institution
is taken possession of by the Government under sub-section ( 1) it B
shall be subject to the same incidents as property belonging to a
Muzrai Institution so long as it continues to be in the possession of
Government.

    20. Where the whole or part of the objects of religious or charitable
trust has failed, the Muzrai Officer may, subject to such general rules C
or special orders as the Government may have issued, after notification
in the Official Gazette and hearing such parties as may appear in an
enquiry, pass an order directing that the property or the proceeds
thereof in respect of which the object has failed, may be utilized for
some object of a similar nature, and may frame a scheme for D
administration thereof.

    21. Any person who is aggrieved by an order of the Muzrai
Officer passed under sections 18, 19, 20 may, within six months from
the date on which such order is communicated to him, file a suit in
the Court of the District Judge, in whose jurisdiction the greater part   E
of the property is situate, for cancellation of such order, making the
Muzrai Officer one of the defendants.

    If no such suit has been filed or if it has been filed and dismissed
by the Court, the Muzrai Officer, may, after the lapse of six months
from the date of the communication of his original order or after the F
dismissal of the suit as the case may be, execute his order and may
exercise for that purpose all the powers of a Civil Court in exercising
decrees:

    Provided that in cases in which the property to be disposed of
under section 20 exceeds Rs.3,000 in value or the annual income G
thereof is more than Rs.300 in value, the sanction of Government shall
have been obtained for the order.

    37. The enquiry referred to in sections 10, 17, 20, 26 and 80 shall
be conducted in manner prescribed for a formal enquiry under the
Mysore Land Revenue Code, after issue of notices to the parties H
    858                  SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A         interested and the Muzrai Officer or other person or persons holding
          enquiry shall have all the powers of a Revenue Officer empowered to
          conduct such formal enquiry.

              38. (1) Every order passed under this Act by a Muzrai Officer
          which is not liable to be set aside by a suit filed under any of the
B         provisions of this Act, shall be subject to appeal to the Muzrai
          Commissioner:

             Provided that when the order is passed by an Assistant
          Commissioner exercising the powers of a Muzrai Officer, it will be a
          appealable in the first instance to the Deputy Commissioner.
c             (2) An appeal will lie to the Government against every order
          passed by the Muzrai Commissioner, provided that no such appeal
          shall lie to the Government from an appellate decision passed by the
          Muzrai Commissioner except on a point of law or usage having the
          force of law.
D
              (3) The Government may at any stage, withdraw any appeal or
          proceeding pending before the Muzrai Commissioner and dispose of
          the same or re-transfer the same for disposal to the Muzrai
          Commissioner.

E             (4) The Government may transfer to the Muzrai Commissioner for
          disposal all or any of the appeals that may be pending before them
          when this Act comes into force.

               (5) No appeal shall be brought after the expiration of thirty days
          if the decision or order complained of have been passed by an officer
F         inferior in rank to a Deputy Commissioner, nor after the expiration of
          ninety days in any other case.

             In computing the above periods, the time required to prepare a
          copy of the decision or order appealed against shall be excluded.

              40. In all matters in which a Muzrai Officer, the Muzrai
G
          Commissioner or the Government, has power to pass any order or to
          take any action under this Act, Civil Courts shall exercise jurisdiction
          only to the extent allowed by this Act.

              40A. Any order passed under this Act or the rules issued
          thereunder by a Muzrai Officer or by the Government shall not bar a
H
                   SUDHIR G. ANG UR v. M. SANJEEV [VARIAVA, J.]                859
            suit under the provisions of section 92 of the Code of Civil Procedure,   A
            191 l."

            Mr. Venugapal submitted that Section 18 is wide enough to cover all
     disputes sought to be raised in the suit. He submitted that under Section 18(5)
     the Muzrai Officer has the power to pass all ancillary and necessary orders
     as may be required in accordance with justice and equality. He submitted that B
     this sub-section enables the Muzrai Officer to deal with all contingencies
     including questions of mis-management, mis-appropriation, framing of scheme,
     removal of trustees and recovery of trust properties etc. He submitted that
     in respect of trusts covered by the Mysore Act the only remedy of a person
     was to apply to the Muzrai Officer for an enquiry under Section 17 and for C
     an Order under Section 18. He submitted that if a person was thereafter
     aggrieved by any order passed by the Muzrai Officer, then a Suit could be
     filed under Section 21. He submitted that Section 40 categorically barred the
     jurisdiction of a Civil Court in all matters in which a Muzrai Officer had power
     to pass any Order or take any action. In support of his submission Mr.
     Venugopal relied upon the case of State of Kamaka/a v. Vishwabharathi D
     House Building Coop. Society and Ors., reported in [2003] 2 SCC 412 where
     it is held that a power to pass an Order also includes a power to implement
     the Order.

            We are unable to accept this submission. An enquiry contemplated
     under Section 17 is a summary enquiry of the type held under the various E
     Land Revenue Codes. That it would be a summary enquiry is clear from
     Section 37 of the Mysore Act. Such summary enquiries do not bar jurisdictions
     of Civil Courts. Even otherwise, we are unable to accept the submission that
     Section 18(5) allows the Muzrai Officer to deal with cases where serious
     allegations of fraud and/or forgery are made. Section 18(5) merely enables the F
     Muzrai Officer to pass ancillary or necessary orders in respect of matters
     covered by sub-sections I to 4 of the Section. The enquiry has to be in
     respect of matters laid down in sub-sections I to 4 of Section 18. Further an
     order under Section 18 can only be passed by the Muzrai Officer with the
     previous sanction of the Government. This also shows that these provisions
     are not meant to be a substitute for judicial proceedings.                     G
           A perusal of the Plaint shows that there are serious allegations of
     forgery, fraud, diversion of trust properties in favour of Appellants 2 & 3 and
     the brothers of the I st Appellant. Such serious allegations can never be
-•   enquired into, in a summary manner by a Muzrai Officer in the type of enquiry
     contemplated under Section 17 of the Mysore Act. These are matters which H
    860                    SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A can only be gone into by a Court. The trial court was thus right in holding
    that these are matters which would reguire issues to be framed and which
    were required to be detennined on evidence.

         Even otherwise, Section 40A of the Mysore Act categorically provides
  that a suit under Section 92 of the Code of Civil Procedure, 1911 is not barred,
B even though an order may have been passed by the Muzrai Officer or by the
  Government. If a suit is not barred after an Order is passed, then it obviously
  follows that the suit under Section 92 CPC will not be barred when no such
  order has been passed. Undoubtedly, Section 40A refers to Section 92 of the
  Code of Civil Procedure, 1911. This was the Code which was prevailing in the        .~


C Mysore State in 1927 when the Mysore Act was enacted. At that time, the
  Civil Procedure Code, 1909 did not apply to Part B States like the Mysore
  State. However, by the Code of Civil Procedure (Amendment) Act, 1951 the
  Civil Procedure Code, 1908 was made applicable to the whole of India including
  Part B States. Thus, with effect from 1st of April, 1951 the Civil Procedure
  Code, 1908 became applicable even to the State of Mysore. Section 20 of the
D Amendment Act repeals Codes which were prevailing in Part B States.
  Therefore, the Code of Civil Procedure, 1911 (as prevailing in Mysore) got
  repealed. Section 20(3) of the Amendment Act reads as follows:            '1

            "20(3) In every law or notification passed or issued before the
            commencement of this Act in which reference is made to or to any
E           Chapter or section of any law hereby repealed, such reference shall,
            so far as may be practicable, be taken to be made to the said Code
            or its corresponding Part, Order, section or rule."

  Thus, now in Section 40A the reference to Section 92 of the Code of Civil
  Procedure, 1911 would mean Section 92 of the Code of Civil Procedure, 1908.
F It is therefore clear that in 1999 when the suit was filed, suits under Section
  92 of the Civil Procedure Code, 1908 were not barred.

          Even otherwise leave to file the suit was granted after hearing parties.
    Once leave was granted the question of rejecting the Plaint under Order VII
G   !lule 11 did not arise. An application for rejection of the Plaint should have
    been made prior to the leave having been granted or at the time when the
    Appellants opposed grant of leave. Having lost in their opposition to grant
    of leave it was not open to the Appellants to then apply for rejection of the
    Plaint under Order Vil Rule 11 CPC.

H         In our view, Mr. G.L. Sanghi is also right in submitting that it is a law
              SUDHIRG. ANGUR v. M. SANJEEV [VARIAVA, J.]                 861
on the date of trial of the suit which is to be applied. In support of this A
submission, Mr. Sanghi relied upon the Judgment in the case of Shiv Bhagwan
v. Onkarma/, reported in A.LR. (1952) Bombay 365, wherein it has been held
that no party has a vested right to a particular proceeding or to a particular
forum. It has been held that it is well settled that all procedural laws are
retrospective unless the Legislature expressly states to the contrary. It has
been held that the procedural laws in force must be applied at the date when B
the suit or proceeding comes on for trial or disposal. It has been held that
a Court is bound to take notice of the change in the law and is bound to
administer the law as it was when the suit came up for hearing. It has been
held that if a Court has jurisdiction to try the suit, when it comes on for
disposal, it then cannot refuse to assume jurisdiction by reason of the fact C
that it had no jurisdiction to entertain it at the date when it was instituted.
We are in complete agreement with these observations. As stated above, the
Mysore Act now stands repelled. It could not be denied that now the Court
has jurisdiction to entertain this suit.

      It must lastly be mentioned that on 18th March, 2002, at the request of D
the Appellants, the name of Respondent No. 4 was deleted from the array of
parties in this Appeal. Respondent No. 4 is the concerned Trust. It is not only
a proper party but a necessary party. The whole dispute relates to the
management of the trust and the properties of the trust. By deleting Respondent
No. 4 the Appellants have deleted a proper and a necessary party. For that E
reason also, the Appeal is required to be dismissed.

     For all the above reasons, the Appeal stands dismissed. There will be
no order as to costs.

     As the Suit is old, we direct the trial court to dispose of the Suit as    F
expeditiously as possible, preferably within a period of one year from today.

S.K.S.                                                    Appeal dismissed.