IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3034 OF 2008
Public Trust Shri Geeta
Satsang Bhawan ….Appellant(s)
Nand Lal Ors. .…Respondent(s)
CIVIL APPEAL NO. 9876 OF 2017 (Arising out of S.L.P.(c) No. 10949/2008)
CIVIL APPEAL NO. 9877 OF 2017 (Arising out of S.L.P.(c) No. 11138/2008)
CIVIL APPEAL NO. 9878 OF 2017 (Arising out of S.L.P.(c) No. 14325/2008)
Abhay Manohar Sapre, J.
IN Civil Appeal No. 3034 of 2008
1) Signature Not Verified This interest is filed by a Plaintiff opposite a final Digitally sealed by ANITA MALHOTRA Date: 2017.07.29 13:53:59 IST Reason: visualisation and orders antiquated 19.09.2006 upheld by a High Court of Judicature for Rajasthan during Jodhpur in S.B. Civil Second Appeal No. 295 of 2006 and S.B. Civil Second Appeal No. 296 of 2006 whereby a High Court, by apart judgments, discharged a appeals filed by a plaintiff opposite a visualisation antiquated 30.11.2005 of a Additional District Judge(Fast Track) No.2, Pali (Raj.) in Civil Appeal Decree Nos.3 and 4 of 2005 whereby a appeals of a respondents (defendants) were authorised and a visualisation and direct antiquated 27.10.2004 upheld by a Civil Judge (Senior Division), Pali in a Civil Suit No. 4/2004 and Civil Suit No. 5/2004 were set aside.
2) We herein set out a facts, in brief, to conclude a issues concerned in this appeal.
3) The appellant is a open Trust of that Shri Ramanand is a Chairman. The Trust was shaped by executing a Trust help on 31.07.1980. The land measuring 1 Bigha 5 Biswas situated during Pali was allotted by a Government on 14.05.1982 in a name of Shri Rama Nand and a patta was accordingly postulated to him. He afterwards assembled shops on this land.
4) On 01.10.1985, a Shop No.7 was let out to Nand Lal-respondent No.1 on lease on an verbal agreement during a monthly lease of Rs.500/- that was extended during Rs.625/- per month on 01.10.1996 with a agree of both parties.
5) On 01.10.1989, a Shop No.11 was let out to Nand Lal, Jitendar Rai Mathur and M/s Mayur Auto Repairs on lease on a basement of an verbal agreement during a monthly lease of Rs.600/-, that was extended to Rs.750/- per month on 01.10.1996 with a agree of a parties. After a encouragement of rent, a respondents stopped profitable a lease to a appellant-Trust. However, respondent No.1 paid lease usually in honour of Shop No. 7 adult to 30.06.1998.
6) On 17.10.1998, a appellant, therefore, sent a notice under Section 106 of a Transfer of Property Act, 1882 to a respondents in honour of Shop No.11 by purebred post and consummated a tenancy. By trait of notice, a respondents were sensitive that their control would cancel w.e.f. midnight of 30.11.1998. Similarly, on 22.10.1998, a appellant sent a notice under Section 106 of a T.P. Act to respondent No.1 in honour of Shop No.7 by purebred post and consummated a control w.e.f. midnight of 30.11.1998. Respondent No.1 did not respond to this notice also.
7) Subsequently, on 23.10.1998, a respondents gave a coupon to a appellant opposite a lease in honour of Shop No.11 adult to a month of Nov and indemnification on comment of use and function for a month of December, 1998 and respondent No.1 gave a coupon in honour of Shop No.7 opposite a lease adult to a month of Nov and indemnification on comment of use and function for a month of December, 1998. However, a respondents did not palm over a possession of both a shops.
8) On 20.01.1999, a appellant instituted a fit for eviction and liberation of lease being Civil Suit No. 15/99 (re-numbered as 5/2004) opposite Nand Lal, Jitendar Rai Mathur and M/s Mayur Auto Repairs in honour of Shop No.11 and Civil Suit No.14/99 (re-numbered as 4/2004) against Nand Lal in honour of Shop No.7 before a Additional Civil Judge(Senior Division), Pali.
9) The Trial Court, after framing a issues in both a suits, by apart judgments on 27.10.2004, answered a issues in foster of a appellant and accordingly intended a appellant’s fit and systematic a respondents’ eviction from a fit premises within a duration of dual months and compensate a indemnification for use and function w.e.f. 20.11.1998 compartment a date of handing over a possession of a fit premises (i) during a rate of Rs.750/- per month in Civil Suit No.5/2004 and (ii) during a rate of Rs.625/- per month in Civil Suit No.4/2004.
10) Aggrieved by a pronounced judgment, a respondents filed apart initial appeals being Civil Appeal Decree No.3/2005 and Civil Appeal Decree No.4/2005 before a Additional District Judge (Fast Track) No.2, Pali.
11) The Appellate Court framed additional issues in place of emanate Nos. 1 and 1(a) framed by a Trial Court, that review as under:
“(1) Whether a plaintiff-trust is exempted from the Rent Act according to a Advertisement No.P-4(11)V.V. and 3/96 antiquated 04.07.98 published during Page No.51 in a Rajasthan supervision Gazette Edition antiquated 06.07.1998?
(2) Whether carrying consummated a control by arising notice under Section 106 of a Transfer of Property Act, plaintiff is entitled to get a possession?
(3) Whether a plaintiff is a purebred Trust, if yes, afterwards a effect?
(4) Whether all a Trustees are compulsory parties to a suit?
(5) Whether a notice has been waived on comment of usurpation a lease after terminating a control by notice?”
12) By apart judgments on antiquated 30.11.2005, a Appellate Court motionless emanate Nos. 3 and 4, as extracted above, opposite a appellant and accordingly authorised a respondents’ appeals and set aside a judgments and direct antiquated 27.10.2004 upheld by a Trial Court in Civil Suit Nos. 4/2004 and 5/2004. It was hold that given a plaintiff-Trust was not purebred underneath a Rajasthan Public Trust Act, 1959(hereinafter referred to as “the Act”), a fit itself was not efficient for wish of registration in a light of bar contained in Section 29 of a Act. The Appellate Court, therefore, did not go into a merits of a box and discharged a suit.
13) Aggrieved by a pronounced judgments, a appellant elite S.B.Civil Second Appeal Nos.295/2006 and 296/2006 before a High Court.
14) The High Court, by a impugned judgments, discharged a appeals in limine.
15) Against both a judgments, this interest by special leave is filed by a plaintiff-Trust before this Court.
16) Heard Mr. M.R. Calla, schooled comparison warn for a appellant-Trust and Mr. Puneet Jain, schooled warn for a respondents.
17) During a pendency of this appeal, a appellant (plaintiff) filed I.A. No 5 of 2013 and sought accede to record additional papers in support of their case. The appellant along with IA filed one Registration Certificate released on 07.02.2013 by a bureau of a Assistant Commissioner, Department of Endowments, Jodhpur, Government of Rajasthan(Annexure A-3) certifying therein that a appellant(plaintiff)-Trust is registered under a Act w.e.f. 07.02.2013. A request was, therefore, done to take this request on record being applicable one for determining a appeal. This I.A. was authorised by this Court’s sequence antiquated 20.01.2014.
18) Having listened a schooled warn for a parties and on examination of a record of a case, we are prone to concede a interest in partial and while environment aside a impugned sequence and also of a initial Appellate Court and a Trial Court revive a polite fit to a record for determining a polite fit new on merits in suitability with law.
19) It is an certified fact that a appellant/plaintiff – Trust was not a purebred open Trust underneath a Act on a date of filing a polite suit. It is also an certified fact that a appellant-plaintiff, therefore, got a Trust purebred as compulsory underneath a Act usually on 07.02.2013 during a pendency of this appeal.
20) Section 29 of a Act, that relates to this case, reads as under:
“Section 29. Bar opposite suits by un-registered trust-(1) No fit to make a right on interest of a open trust that is required to be purebred underneath this Act though has not been so purebred shall be listened or motionless in any Court.
(2) The supplies of Sub-section(1) shall request to explain of set off or other move to make a right on interest of such open trust.”
21) Section 29 creates a bar “for conference and determining a suit” filed by a open Trust for coercion of any of their rights, if a pronounced Trust is not purebred underneath a Act. The bar, therefore, relates for “hearing and deciding” a fit and not in filing a suit. In other words, fit can be filed by a unregistered Trust though such fit will conjunction be listened nor motionless by a Court unless and until a Trust is purebred underneath a Act. Section 29 is, therefore, operates as stay of record in a fit so prolonged as a Trust does not get itself purebred underneath a Act.
22) A fortorari, a impulse a Trust is purebred underneath a Act, a Trial Court would assume a office to hear and confirm a fit on merits. The bar combined under Section 29 of a Act for “hearing and deciding” the suit is afterwards carried and ceases to request to a record in a suit.
23) As mentioned supra, given a appellant (plaintiff) – Trust was purebred underneath a Act on 07.02.2013, they acquired a right to prosecute a fit on merits opposite a respondents. The bar combined under Section 29 then would no longer work to a record in a suit.
24) In a opinion, a Trial Court was, therefore, unconditionally undue in move to hear and confirm a fit on merits by flitting a judgment/decree. It unsuccessful to see a strictness of Section 29 which had taken divided a office of a Trial Court in conference and determining a suit.
25) Similarly, a initial Appellate Court and a High Court also erred in straightaway dismissing a appellant’s suit. Having hold and indeed righteously that a Trust was unregistered, instead of determining a interest and dismissing a fit should have stayed a record by extenuation some reasonable time to a appellant/plaintiff-Trust to get their Trust registered under a Act. If notwithstanding extenuation time, a Trust had unsuccessful to obtain a Registration Certificate afterwards in such eventuality, a initial Appellate Court could have discharged a suit.
26) Be that as it may, now that a appellant/plaintiff has performed a compulsory registration certificate in propinquity to their Trust underneath a Act, that is also taken on record, their fit can now be listened and motionless on merits by a Trial Court. The bar handling under Section 29 of a Act for conference and determining a fit would no longer request to a fit and a Civil Court would now assume office to try a fit on merits.
27) Learned warn for a appellant (plaintiff), however, submitted that a matter be remanded to a initial Appellate Court to confirm a interest filed by a respondent on merits since a Trial Court has already motionless a fit on merits in their favour. The acquiescence is abandoned of any consequence for some-more than one reason.
28) First, a direct upheld by a Trial Court was on a face of it but office carrying been upheld in transgression of Section 29 of a Act; second, a Civil Court had no energy to hear and confirm a fit by trait of a bar combined under section 29 of a Act; and third, admittedly a Trust was not purebred on a date of filing of a fit and remained un-registered compartment a visualisation was delivered by a Trial Court. It is for these reasons, a direct upheld by a Trial Court is but office and has to be set aside.
29) In perspective of foregoing discussion, a interest is authorised in part, impugned judgments as also a judgment/decrees of a Trial Court are set aside. The matter is remanded to a Trial Court for conference and determining a suits on merits in suitability with law. Parties are postulated autocracy to rectify their pleadings and also record additional papers including a certificate of registration of a Trust to capacitate a Trial Court to confirm a suits as directed. The Trial Court shall confirm a suits within 6 months uninfluenced by any of our observations on merits since we have not voiced a opinion on any of a issues touching a merits of a controversy. Parties to seem before a Trial Court on 21.08.2017 to capacitate a Trial Court to ensue with a trial.
30) The Registry is destined to send behind a strange record of a box to a Trial Court forthwith, if it is requisitioned, and also send one duplicate of this sequence to a Trial Court for information and record. In S.L.P.(c) Nos. 10949, 11138 and 14325 of 2008 Leave granted.
In perspective of a visualisation upheld in Civil Appeal No. 3034 of 2008, these appeals are authorised in partial on a same terms.
[ABHAY MANOHAR SAPRE]
July 25, 2017
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