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Tirathram Shah Charitable Trust & Anr. v. M/S. Anjali Birla Sawhney & Ors. S

Delhi High Court
Mar 9, 2016
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

F.A.O (OS) 487/2013 and C.M No. 17012/2013, F.A.O (OS) 471/2013; C.M No. 16557/2013; F.A.O (OS) 487/2013; and C.M No. 17012/2013

Attorney(S)

Mr. Ajay Kumar Tandon and Ms. Manika Goswamy

Mr. Sanjeev Anand, Ms. Anubha and Mr. Arush Khanna

Mr. Rajshekhar Rao and Mr. Rahul Chaudhary

Mr. Rajshekhar Rao and Mr. Rahul Chaudhary, Mr. Ajay Kumar Tandon and Ms. Manika Goswamy for R-1 & 4, Mr. Rajshekhar Rao and Mr. Rahul Chaudhary for R-3

JUDGES

Sanjeev Sachdeva

Badar Durrez Ahmed, JJ.

ACTS

Order 7 Rule 11,

7 rule 11 of the Code of Civil Procedure,1908 (hereinafter referred

7 rule 11 CPC

Order 7 Rule 11 CPC

Article 58 of the Limitation Act, 1963

Article 58 of the Schedule to the Limitation Act, 1963

7 rule 11 CPC. Three 3

See more information ... Less ...
Smart Summary (Beta)

Factual and Procedural Background

This summary concerns appeals arising from a common order dated 23.09.2013 in CS (OS) 1291 of 2010, whereby a learned single judge dismissed applications filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (IA 16634/2010 and IA 16958/2010). The appeals were heard by a Division Bench comprising Hon'ble Mr Justice Badar Durrez Ahmed and Hon'ble Mr Justice Sanjeev Sachdeva, with judgment delivered on 09 March 2016.

Plaintiffs: Mrs. Anjali Birla Sawhney and Ms. Shreya Sawhney filed a suit for declaration and permanent injunction seeking a declaration that either of them is entitled to be appointed as trustee of the Tirathram Shah Charitable Trust (the "Trust"); they alleged that appointment of any person as trustee in place of the late Mr. Pavan Chander Mohan Sawhney (who died on 13 January 2002) was void ab initio and that the appointment of Mrs. Geeta Rajpal (defendant No. 4) was contrary to the Trust Deed, the settlor's intention and an alleged family settlement. The suit was instituted on 02 June 2010.

Relevant facts in brief: The Trust was established in 1953 by the four sons of Rai Bahadur Lala Tirath Ram Shah. Mr. Pavan Chander Mohan Sawhney (a trustee) died on 13 January 2002. On 07 July 2006 Mrs. Geeta Rajpal, who is not a family member, was appointed a trustee in his place. The plaintiffs allege an oral compromise or agreement with defendant Nos. 2 & 3 (members of the family and trustees) dated 13 February 2009 promising appointment of either plaintiff as trustee; they discovered the appointment of defendant No.4 on 17 April 2010 and filed the suit thereafter.

Procedural posture: The defendants (appellants in these appeals) filed applications under Order 7 Rule 11 CPC seeking rejection of the plaint on grounds including limitation, absence of cause of action and non-compliance with Section 92 CPC. The single judge denied those applications; the Division Bench in these appeals set aside the single judge's order and allowed the defendants' applications under Order 7 Rule 11 CPC, rejecting the plaint as barred by limitation and for not disclosing any cause of action. The court left the question under Section 92 CPC open and directed parties to bear their own costs.

Legal Issues Presented

  1. Whether the plaintiffs' suit was barred by limitation under Article 58 of the Limitation Act, 1963 (three years from when the right to sue first accrues), considering the death of Mr. Pavan Chander Mohan Sawhney on 13.01.2002 and the appointment of defendant No.4 on 07.07.2006.
  2. Whether the plaint, as drafted, disclosed a triable cause of action against the Trust and/or defendant No.4 and/or defendant Nos. 2 & 3 such that it survived an application under Order 7 Rule 11 CPC.
  3. Whether the reliefs claimed required leave of the court under Section 92 of the CPC, i.e., whether the suit vindicated a public right (necessitating leave) or an individual right (not necessitating leave).

Arguments of the Parties

Defendants' (Appellants') Arguments

  • The suit is barred by limitation: Article 58 prescribes three years from when the right to sue first accrues. The plaintiffs' right, if any, accrued either on the death of Mr. Pavan Chander Mohan Sawhney (13.01.2002) or on the appointment of Mrs. Geeta Rajpal as trustee (07.07.2006); the suit filed on 02.06.2010 is beyond the limitation period reckoned from either date.
  • The Trust Deed allows appointment of trustees by majority vote and does not require trustees to be family members or provide special representation to family branches; therefore appointment of a non-family member (Mrs. Geeta Rajpal) was permissible and there is no cause of action against the Trust or Mrs. Geeta Rajpal as the plaint contains no averment that they promised to appoint either plaintiff.
  • As to defendant Nos. 2 & 3 (family trustees), even if they purportedly promised in 2009, they constituted only two of the remaining trustees and could not, by themselves, effect an appointment that requires a majority; thus any alleged promise by them does not give rise to a cause of action.
  • The reliefs sought are governed by Section 92(1) CPC and as no leave was sought under Section 92(2) CPC the suit is barred.

Plaintiffs' Arguments (as reflected in the plaint and single judge's view)

  • The plaintiffs alleged an oral compromise/ agreement dated 13 February 2009 with defendant No.2 (and by reference defendant No.3) to appoint either plaintiff as trustee in place of the late Mr. Pavan Chander Mohan Sawhney; the plaintiffs contend that the cause of action arose on that date and therefore the suit (filed 02.06.2010) was within limitation.
  • The plaintiffs framed the suit as enforcement of an individual right based on the intention of the settlors and the alleged oral compromise, and the learned single judge held that Section 92 CPC was not applicable because the suit did not vindicate a public right.
  • The single judge found that defendant Nos. 2 & 3 played a major role in the administration of the Trust and that past practice and precedent indicated an intention of the settlors such that the alleged promise could give rise to a cause of action requiring a trial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sopan Sukhdeo vs. Assistant Charity Commissioner (2004) 3 SCC 137 For deciding an application under Order 7 Rule 11 CPC: averments in the plaint are germane and pleas in the written statement are irrelevant; adopt a meaningful reading of the plaint to avoid being misled by clever drafting. The court applied this principle to examine the plaint's averments on a meaningful reading when deciding whether the plaint disclosed a triable cause of action and whether it should be rejected under Order 7 Rule 11 CPC.
T. Arivandandam vs. T.V. Satyapal (1977) 4 SCC 467 Where a plaint is manifestly vexatious or meritless and does not disclose a clear right to sue, the court should exercise its power under Order 7 Rule 11 CPC to nip such litigation in the bud; adopt a meaningful (not merely formal) reading of the plaint. The court relied on this authority to conclude that the present plaint was cleverly drafted to create an illusion of a cause of action, was vexatious and meritless, and therefore appropriate for rejection under Order 7 Rule 11 CPC.

Court's Reasoning and Analysis

The Division Bench engaged in a step-by-step analysis applying the Trust Deed provisions, the Limitation Act and the authorities on Order 7 Rule 11 CPC:

  1. Limitation: The court held that the learned single judge erred in treating the alleged oral promise dated 13.02.2009 as the date for reckoning limitation. The plaintiffs' claim was for appointment in place of the deceased trustee (Mr. Pavan Chander Mohan Sawhney), who died on 13.01.2002. Accordingly, the cause of action accrued on his death. Alternatively, if the accrual was not the date of death, it certainly accrued when the remaining trustees filled the vacancy by appointing defendant No.4 on 07.07.2006. Reckoned from either of those dates, the suit (instituted on 02.06.2010) is beyond the three-year period prescribed by Article 58 of the Limitation Act, 1963; thus it is barred by limitation.
  2. Cause of Action as to the Trust and Defendant No.4: The plaint does not aver any agreement or promise by the Trust or by the other remaining trustees (apart from defendant Nos. 2 & 3) to appoint either plaintiff as trustee. Therefore there is no cause of action against the Trust or against defendant No.4. The appointment of defendant No.4 on 07.07.2006 stood unchallenged for nearly four years prior to the suit; the plaint fails to disclose a cause of action against her.
  3. Cause of Action as to Defendant Nos. 2 & 3: The alleged oral promise is pleaded solely against defendant Nos. 2 & 3. By 13.02.2009 (the date of the alleged promise), the vacancy had already been filled in 2006. Furthermore, the Trust Deed requires appointments to be made by a majority of trustees; defendant Nos. 2 & 3 together constituted only a minority of the trustees and could not, by themselves, effect an appointment. Accordingly, even the alleged promise by them could not produce a binding right to the plaintiffs, and the plaint does not disclose a cause of action against them.
  4. Order 7 Rule 11/Clever Drafting: Applying the principles from Sopan Sukhdeo and T. Arivandandam, the court emphasised that a meaningful and not merely formal reading of the plaint is required when entertaining an Order 7 Rule 11 application. On such a reading, the court found that the plaint was manifestly vexatious and meritless in that it did not disclose a clear right to sue and appeared to rely on clever drafting to create the illusion of a cause of action. The court therefore concluded that the plaint should be rejected under Order 7 Rule 11 CPC.
  5. Section 92 CPC: Because the court concluded that the suit was barred by limitation and failed to disclose a cause of action, it did not decide the defendants' contention on applicability of Section 92 CPC; that issue was expressly left open.

Holding and Implications

Holding:

The appeals are allowed; the applications under Order 7 Rule 11 CPC (IA 16634/2010 and IA 16958/2010) are allowed and the plaint is rejected as being barred by limitation and for failing to disclose any cause of action.

Implications and direct effects:

  • The plaint in CS (OS) 1291 of 2010 is rejected and the suit is dismissed at the pleading stage on grounds of limitation and absence of a disclosed cause of action.
  • The court exercised its power under Order 7 Rule 11 CPC to nip the litigation in the bud, applying the principles laid down in Sopan Sukhdeo and T. Arivandandam concerning meaningful scrutiny of a plaint to guard against clever drafting and vexatious litigation.
  • The question whether Section 92 CPC applies (i.e., whether the suit vindicates a public right and therefore required leave) was left open and not decided.
  • Parties were directed to bear their own costs.
  • No broader change in legal precedent was announced beyond applying established Supreme Court authorities to the facts of this case; the court's decision operates to dispose of the particular suit before it.

Judges: SANJEEV SACHDEVA, J and BADAR DURREZ AHMED, J. Judgment delivered on 09 March 2016.

Show all summary ...

IN THE HIGH COURT OF DELHI AT NEW DELHI

th

Judgment reserved on: 05 November, 2015 Judgment delivered on : 09th March, 2016

+ FAO(OS) 471/2013 and CM No. 16557/2013 TIRATHRAM SHAH CHARITABLE TRUST & ANR. ..... Appellants versus

M/S ANJALI BIRLA SAWHNEY & ORS. ..... Respondents

Advocates who appeared in this case:

For the Appellants : Mr Ajay Kumar Tandon and Ms Manika Goswamy For the Respondents : Mr Rajshekhar Rao and Mr Rahul Chaudhary + FAO(OS) 487/2013 and CM No. 17012/2013

RATI SAWHNEY & ANR. ..... Appellants

versus

TIRATHRAM SHAH CHARITABLE TRUST & ORS. ..... Respondents

Advocates who appeared in this case:

For the Appellants : Mr Sanjeev Anand, Ms Anubha and Mr Arush Khanna For the Respondents : Mr Rajshekhar Rao and Mr Rahul Chaudhary Mr Ajay Kumar Tandon and Ms Manika Goswamy for R-1 & 4

Mr Rajshekhar Rao and Mr Rahul Chaudhary for R-3

CORAM:

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE SANJEEV SACHDEVA

1

J U D G M E N T

SANJEEV SACHDEVA, J

1. These appeals arise out of common order dated 23.09.2013 in CS (OS) 1291 of 2010, whereby the learned single judge has dismissed the applications {IA 16634/2010 (filed by appellants in FAO(OS) 471/2015) & IA 16958/2010 (filed by appellants in FAO(OS) 487/2015)} under order 7 rule 11 of the Code of Civil Procedure,1908 (hereinafter referred to as the

CPC).

2. Mrs. Anjali Birla Sawhney wife of Late Mr. Pavan Chander Mohan Sawhney and her daughter Ms. Shreya Sawhney have filed the suit for declaration and permanent injunction. They seek a declaration that either of them are entitled to be appointed as trustees of the Tirathram Shah Charitable Trust (hereinafter referred to as the Trust) and the appointment of any other person as a trustee in place of Mr. Pavan Chander Mohan Sawhney is void ab initio and the appointment of Geeta Rajpal is against the Trust Deed, intention of the settler and the family settlement. Further consequential injunctive reliefs are also sought.

3. Mr. Pavan Chander Mohan Sawhney was the elder brother of Mr. Dhruv Mohan Sawhney (Defendant No. 2). Mrs. Rati Sawhney (Defendant No.3) is the wife of Mr. Dhruv Mohan Sawhney.

4. The Trust was established in the year 1953 by the four sons of late Rai Bahadur Lala Tirath Ram Shah as the settlors. Mr. Pavan Chander Mohan

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Sawhney and Mr. Dhruv Mohan Sawhney are the sons of late Mr. Puran Chand Sawhney, grandson of Rai Bahadur Lala Tirath Ram Shah.

5. Mr. Pavan Chander Mohan Sawhney was one of the trustees of the Trust besides Mr. Dhruv Mohan Sawhney and Mrs. Rati Sawhney (defendants No. 2 & 3) besides other five trustees. Mr Pavan Chander Mohan Sawhney passed away on 13thJanuary 2002.

6. On 07thJuly 2006 Mrs. Geeta Rajpal (defendant No.4) who is not one of the family members of late Rai Bahadur Lala Tirath Ram Sawhney was made a trustee in place of Mr. Pavan Chander Mohan Sawhney.

7. It is alleged in the plaint that on 13thFebruary 2009 a compromise was entered into between the plaintiffs and defendant No. 2 with regard to appointment of either of the plaintiffs as trustee of the Trust in place of late Mr. Pavan Chander Mohan Sawhney. The case set up by the plaintiffs is that the cause of action for filing the suit arose on 13thFebruary, 2009 when the oral agreement was arrived at among the plaintiffs and defendant Nos. 2 & 3 in the midst of the ongoing litigation and defendant No.2 promised that he would take appropriate steps for appointment of either of the plaintiffs as trustees of defendant No.1 in place of Mr. Pavan Chander Mohan Sawhney. It is contended that on 17.04.2010, the plaintiffs came to know from Dr. Anand Prakash that the Defendant No. 4 had been recently appointed as a trustee in place of Mr. Pavan Chander Mohan Sawhney and as such the plaintiffs filed the Suit.

8. The defendants in the suit, i.e., the appellants in the respective appeals filed the applications as mentioned above under order 7 rule 11 CPC. Three

3

broad grounds are raised in the application. First of all, it is contended that the suit is barred by limitation. Article 58 of the Limitation Act, 1963 lays down a period of limitation of three years from the date the right to sue accrues. It is contended that the right to sue accrued, if at all, on the death of Mr. Pavan Chander Mohan Sawhney on 13.01.2002. Mr. Geeta Rajpal was appointed as a trustee in place of Mr. Pavan Chander Mohan Sawhney on 07.07.2006 and the suit has been filed on 02.06.2010 much after the expiry of period of limitation computed from either of the two dates.

9. Secondly, it is contended that the trust deed does not stipulate that only a family member has to be appointed as a trustee or that there has to be representation from the family of Rai Bahadur Lala Tirath Ram Shah. The appointment of trustee, in case of a vacancy, is by a majority vote and Mrs. Geeta Rajpal was appointed by the remaining trustees. It is further contended that insofar as the Trust, Mrs. Geeta Rajpal and the remaining trustees (other than Defendant 2 and 3) are concerned, there is no averment in the plaint that there was ever any agreement that either of the plaintiffs would be appointed as a trustee and thus the plaint does not disclose any cause of action qua them. Insofar as the Defendant No. 2 & 3 are concerned, it is contended that they were only two out of the remaining seven trustees and even if they had agreed to appoint either of the plaintiffs, it would not make any difference as there were five more trustees and the appointment is to be by majority vote. Thus, it is contended, that the plaint does not even disclose any cause of action against them.

4

10. Thirdly, it is contended that the reliefs sought are covered by Section 92(1) of the CPC and as no leave of the court has been sought the suit is barred under section 92(2) of the CPC.

11. The learned single judge by the impugned order held that the alleged oral family settlement was arrived at between the plaintiffs and defendant No. 2 on 13.02.2009 and as such, the suit instituted on 02.06.2010 was prima facie within limitation. Further it is held that the present suit is not one to vindicate the right of the public but seeks enforcement of an individual right in view of the intention of the settlors and the oral compromise arrived at between the plaintiffs and the defendants No. 2 & 3. Thus, it is held, that section 92 CPC is not applicable to the present suit and it is maintainable without seeking the leave of this court. With regard to cause of action, the learned single judge has held that as it is not disputed that defendants no. 2 and 3 are the trustees and play a major part in the administration of the Trust and till the death of Mr. Pavan Chander Mohan Sawhney, all branches of late Rai Bahadur Tirath Ram Shah were duly represented in the Trust, past precedent and practice was an indicator of the intention of the settlers. Though defendants No. 2 and 3 cannot appoint either of the plaintiffs as the trustees individually but their decision would play an important part in appointment of a trustee. Thus, it was held that the plaint cannot be nipped in the bud on the ground that no cause of action arises and the plaintiffs are entitled to a trial to prove the averments made in the plaint.

12. The Supreme Court of India in Sopan Sukhdeo vs. Assistant Charity Commissioner (2004) 3 SCC 137 held that for the purposes of deciding an application under Order 7 Rule 11, the averments made in the plaint are

5

germane and the pleas taken by the Defendant in the written statement would be irrelevant. Further, the court also emphasized that a meaningful and not formal reading of the plaint was to be adopted to nip in the bud any clever drafting of the plaint to create an illusion of a cause of action.

13. The court has to see the averments in the plaint to decide whether the suit discloses a triable cause of action. A meaningful and not a formal reading of the plaint has to be adopted to determine whether the plaint discloses a cause of action or a clever drafting methodology has been used to create a semblance of a cause of action. Where the Court comes to a conclusion that by adopting a method of clever drafting a semblance of a cause of action is being created, the court has to nip the vexatious and meritless litigation in the bud.

14. The Supreme Court in the case of T. Arivandandam vs. T.V. Satyapal (1977) 4 SCC 467 has held as under:-

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to

6

irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage........"

15. The Supreme Court in the case of T. Arivandandam (supra) held that where the suit is a flagrant misuse of the 'mercies' of the law in receiving a plaint, the court has to give a meaningful reading of the plaint and not a mere formal meaning. Where on a meaningful reading of the plaint it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order 7 Rule 11 CPC taking care to see that the grounds mentioned therein are fulfilled. If by clever drafting an illusion of a cause of action is created, the court can nip it in the bud. The Supreme Court further held that an activist Judge is the answer to irresponsible law suits.

16. Relevant clauses of the Trust Deed dated 15.12.1953, filed along with the plaint, stipulate as under:

"IV. The following provisions shall apply to meetings and proceedings of the Trustees:-

(a) The Trustees shall hold ordinary meetings at least once a year. A special meeting may at any time be summoned by the Chairman or any other Trustee upon ten days notice being given to all the other Trustees of the business to be transaction or discussed;

(b) Five Trustees present at a meeting shall form a quorum and the decision of a majority of Trustees present at a meeting shall prevail.

(c) R.B. Lala Isher Das Sawhney will be the permanent

7

Chairman of the Board of Trustees as long as he remains a Trustee;

***** ***** *****

POWER OF TRUSTEES

1. The number of Trustees shall not be less than 8 and more than 12.

2. If any vacancy occurs by reason of death, resignation or otherwise by operation of law or the rules, such vacancy shall be filled up by the remaining trustees by selecting such person or persons who are willing to act. The selection will be made by majority of votes.

***** ***** *****

MEETINGS

***** ***** *****

24. Rai Bahadur Lala Isher Das, the permanent Chairman, will preside at all the meetings of the Trustees. In case the permanent Chairman be not present within 15 minutes of the time fixed for holding the meeting, the Trustees present will choose one of the Trustees present to preside over the meeting,

25. In case Rai Bahadur Lala Isher Das ceases to be a Trustee the remaining Trustees shall elect one of the trustees to be Chairman, who will hold office for one year. The retiring Chairman will be eligible for re-election provided he continues to be a Trustee.

***** ***** *****

28. Questions coming up for decision before a meeting shall be decided by majority of votes. In case of equality, the Chairman will have a second or casting vote."

8

17. All decisions of the Trust including appointment of Trustees have to be by a majority decision. A special meeting can be summoned at any time by the Chairman or any other Trustee upon ten days notice. Five Trustees present at a meeting form a quorum and the decision of the majority of the Trustees present is to prevail. The number of Trustees is not less than 8 and not more than 12. In case of a vacancy, it is to be filled up by the remaining trustees by a majority vote and by selecting such person or persons who are willing to act. The deed stipulates that Rai Bahadur Lala Isher Das, the permanent Chairman, is to preside at all the meetings of the Trustees and in case he is not present within 15 minutes of the time fixed for holding the meeting, the Trustees present will choose one of the Trustees present to preside over the meeting, In case Rai Bahadur Lala Isher Das ceases to be a Trustee the remaining Trustees are to elect one of the trustees to be Chairman, who will hold office for one year. Questions coming up for decision are to be decided by majority of votes and only in case of equality, the Chairman is to have a second or casting vote.

18. The Trust Deed does not indicate that the branches of the family of late Rai Bahadur Tirath Ram Shah have to be represented on the Trust as Trustees. It also does not stipulate that the family in any manner has any extra say in the management of the trust or its affairs. Even as per the Plaintiffs out of 8 trustees only 3 represented the family and the majority were outsiders.

19. The suit filed is based on an alleged oral agreement with the Defendant 2 and 3. The contention in the plaint is that there was an oral agreement with the Defendant 2 & 3 that they would appoint one of the

9

plaintiffs as the trustee in place of Mr. Pavan Chander Mohan Sawhney. There is no averment that there was any such understanding with the other defendants, i.e. the Trust and Mrs Geeta Rajpal.

20. In our view, the learned Single Judge has committed an error in taking the date of the alleged promise (i.e. 13.02.2009) for reckoning the period of limitation. The suit filed on 02.06.2010 has been held to be within limitation. The learned Single Judge erred in not appreciating that the Plaintiffs claimed appointment on account of the demise of Mr. Pavan Chander Mohan Sawhney and in his place. He died on 13.01.2002. As the Plaintiffs are claiming appointment in his place on account of his death, clearly the cause of action would accrue on his demise. Furthermore, Defendant no. 4 was appointed as a trustee, admittedly in his place, on 07.07.2006. Even if one were to assume that the cause of action did not accrue on the said demise, the same would clearly accrue when the remaining trustees appointed defendant No. 4 as a trustee in place of Mr. Pavan Chander Mohan Sawhney. Reckoned from either of the two dates, the suit is clearly barred by limitation as laid down in Article 58 of the Schedule to the Limitation Act, 1963 that stipulates a period of three years from "when the right to sue first accrues".

21. The alleged oral agreement is set up only against the defendant 2 & 3. There is no averment that either the Trust or the other remaining trustees ever agreed to appoint either of the Plaintiffs as a trustee. Since there was no such promise by the Trust or the remaining trustees to appoint either of the plaintiffs as a Trustee, the plaint clearly does not disclose any cause of action as against the Trust. The appointment of the Defendant No. 4 as a Trustee on 07.07.2006 remained unchallenged for nearly four years the plaint also does

10

not disclose any cause of action against Defendant No. 4. The dismissal of the application under order 7 rule 11 CPC filed by the Defendants 1 and 4 is clearly erroneous.

22. Insofar as the application under order 7 rule 11 CPC filed by the Defendant 2 & 3 is concerned, that has also been incorrectly dismissed in as much as the suit is clearly barred by limitation. A reading of the clauses of the Trust Deed shows that there is no such right that can be claimed by the Plaintiffs. The alleged promise is also of no consequence as the same is alleged to have been made on 13.02.2009 by which time the vacancy had already been filled up by the trustees. Even otherwise, the alleged promise is of no consequence as the defendant 2 and 3 are only two out of the seven remaining seven trustees and the decision to appoint is by a majority vote and clearly the defendants 2 & 3 would comprise a minority.

23. On a meaningful reading of the plaint, it is apparent that the present plaint is clearly one that fits into the category of cases, as laid down by the Supreme Court in T. Arivandandam (supra) , which are manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue. Clever drafting has been used to create the illusion of a cause of action when none exists. This is a fit case, in our view, where we should exercise our powers and nip the vexatious litigation in the bud.

24. In view of the above, the impugned order is set aside, the appeals are allowed. The applications i.e. IA 16634/2010 (filed by appellants in FAO(OS) 471/2015) & IA 16958/2010 (filed by appellants in FAO(OS) 487/2015) under order 7 rule 11 CPC are allowed. The plaint is rejected as

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being barred by limitation and failing to disclose any cause of action.

25. Since we have held that the suit is barred by limitation and does not disclose any cause of action, we are not examining the plea of the appellant that the learned single judge has further erred in holding that the reliefs claimed by the plaintiffs are not one to vindicate the right of the public but seek enforcement of an individual right and section 92 CPC is not applicable. We leave this question open.

26. Parties are left to bear their own costs.

SANJEEV SACHDEVA, J

BADAR DURREZ AHMED, J

MARCH 09 ,2016

HJ

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