Appeal from Order No. 968 of 1986

13th December, 1991.

Petitioner Counsel: P. R. Diwan, M/s. Jeshtaram and Co.
Respondent Counsel: S. R. Simhan, B. R. Chinchkar

JUDGMENT

JUDGMENT :- An issue of some consequence debated fully before this Court, though not raised in the forum below is the subject of this order.

2. The Appellant-plaintiff has filed a suit in the City Civil Court (City Court) Bombay for a declaration and injunction alleging breach of Trust by Respondents Nos. 1 to 3 (defendants Nos. 1 to 3) vis-a-vis property known as Dhan Bhavan and by the induction of Respondent No. 4 (defendant No. 4) as a trustee of the Bhai Dhankorbai Morarji Thakorji Trust (trust). Interim reliefs were claimed by way of the appointment of a Receiver to take over the trust property and an injunction to restrain defendants from using or dealing with the said property through a motion. The same having been 'dismissed, plaintiff has come in appeal. The issue -under consideration is whether the City Court had jurisdiction to try the suit. If the answer to-the issue be in the negative, the order impugned in appeal will naturally not survive.

3. Plaintiff a co-trustee of defendants Nos. 1 to 3 complains of defendant No. 1 with the aid of defendants Nos. 2 and 3 misusing her position as a managing trustee. Defendant No. 1 has got the plaint defendants Nos. 2 and 3 to pass a resolution granting a lease of Dhan Bhavan to herself at the trivial rent of Rs. 500/- per month. Even that trifling sum was reduced to nothing by a later resolution. Plaintiff as a trustee was not a party to either the lease or the no-rent resolutions. In fact defendant No. 1 as a trustee could not take trust property on lease or make any gains out of trust property. Defendant No. 4's appointment was illegal as he i.e. plaintiff had not consented to the same. Declarations were sought to nullify resolutions granting Dhan Bhavan on lease to defendant No. 1, appointment of defendant No. 4 as a trustee and that defendant No. 1 had committed several breaches of trust vis-à-vis the trust deed and the Indian Trusts Act, 1882 (Trusts Act). The jurisdiction clause in the plaint ascribes jurisdiction to the City Court because the actionable causes had occurred within the territorial limits thereof. The pecuniary value of the suit was placed at Rs. 300/- and Court fee of Rs. 30/- was paid on the plaint.

4. The question arising is whether the suit is within the jurisdiction of the City Court. The trust figuring in the suit is a private trust governed by the terms of the trust deed and the Trusts Act. This Act does not in terms signify the forum for suits alleging breach of trust and redress therefor. However, several sections in the Act ordain access to a 'Principal Civil Court of original jurisdiction' (Principal Court) for various matters. Section 7 which deals with persons competent to create a trust prescribes the permission of the said Court when the creation is by or behalf of a minor. Section 11 which permits a modification of the purpose of trust and the directions of the author with the consent of all beneficiaries competent to contract, allows such a Court to give consent for a beneficiary incompetent to contract. A trustee directed to sell within a specified time will get exoneration of the charge of prejudice when the Principal Court authorises extension of time vide section 22. A trustee's right to reimbursement for out-of-pocket expenses incurred for the trust goes beyond a mere charge if the expense has been incurred with the sanction of this Court under section 32. Section 36 lays a restraint upon a trustee vis-a-vis lease of trust property for a term exceeding 21 years or without reserving yearly rent except with the permission of the Principal Court. Section 41 empowers this Court to permit application of the corpus, wholly or in part, where the income therefrom is insufficient for trusts of certain types. One of the 3 ways enabling a trustee to renounce a trust after acceptance is with the permission of the Court under section 46. Unreasonable and mala fide exercise of discretionary power of a trustee can be controlled by a principal Court under section 49. Section 53 prohibits a trustee from acquiring any interest in trust property except with the permission of this Court. Section 72 empowers this Court to control an applied for discharge from his office by a trustee. Section 72 confers on the Principal Court a power to determine incapacity of a trustee in certain cases. The beneficiary can under section 74 petition this Court .without filing a suit for the appointment of a new trustee. The oft-used provision section 34 is where a trustee without instituting a suit may apply by petition to the Principal Court for opinion, advice or direction vis-a-vis the management or administration of trust property. Where the questions raised in the petition relate to detail, difficulty or importance, the Court may refer the petitioner to a suit.

5. Other statutes that have a bearing on the question have now to be looked into. The Code of Civil Procedure, 1908 (CPC) at section 2(4) includes the local limits of the ordinary original civil jurisdiction of a High Court, in the definition of the word 'district'. Section 15 mandates the institution of a suit in the Court of the lowest grade competent to try it. Clauses 11, 12 and 13 of the Letters Patent deal with the ordinary and extraordinary original civil jurisdiction of the High Court. Rules relating to the jurisdiction of the High Court on its original side are to be found in part II, Chapter I of the O. S. Rules. The note to Rule 26 enumerates, the territorial expense to which the ordinary original civil jurisdiction of the High Court extends. Rule 27 specifies the different classes of litigation, inclusive of suits, covered by the original civil jurisdiction of the High Court. The Bombay Civil Courts Act, 1869 (Act of 1869) is an enactment to consolidate and amend the law relating to the District and subordinate Civil Courts in the State. Section 5 of this Act mandates the existence of a District Court presided over by a District Judge in each district of the State. This District Court is defined by section 7 to be the Principal Court of original civil jurisdiction in the district within the meaning of the Civil Procedure Code. The last of these enactments is the Bombay City Civil Court Act, 1948 (Act of 1948). The very preamble of the Act shows it to be an Act to establish "an additional Civil Court for Greater Bombay". Section 3 of the Act has empowered the Court established (City Court) to "receive, try and dispose of all suits and other proceedings of a civil nature not exceeding a certain value (this factor being irrelevant for our purposes) within Greater Bombay, except certain suits or proceedings". This jurisdiction is to prevail notwithstanding anything contained in any law. Section 12 makes it clear that the High Court, unless it exercises the power of withdrawal contained in the proviso, shall not have jurisdiction to try suits and proceedings cognisable by the City Court. One of the categories of suits or proceedings excepted by section 3(c) are those which are cognisable by the High Court under any special law other than the Letters Patent.

6. The issues arising may be formulated thus : Is a suit seeking redress for alleged breach of trust - such trust being a private trust - triable only by a Principal Civil Court of original jurisdiction? If so, is the City Courts within the limits of the prescribed pecuniary valuation, such a Court for the territory of Greater Bombay? As to the first issue it has been argued that the City Court is within the pecuniary limits prescribed for it, one of the two Principal Civil Courts of original jurisdiction for Bombay, the other being this High Court. Section 15, Civil Procedure Code is attracted and therefore a suitor must go to the Court of the lowest grade which is competent to try his cause. Implied in this submission is the acceptance of the position that a suit seeking redress for breach of trust has only one forum, and that, the Principal Civil Court of original jurisdiction. The acceptance seems to be proper. No provision of the Trusts Act in specific terms vests such jurisdiction in the Principal Court. Even section 34 does not lay down where a trustee seeking an answer to questions has to file a suit, assuming that he does not want to move a petition for summary disposal. But if advisory jurisdiction is vested in a Principal Court it should be presumed that the adjudicatory function is also its preserve. An inferior Court cannot have the superior adjudicatory jurisdiction when the inferior power to advise, opine and direct is left to the superior forum. The many references to the Principal Court in the Trust Act clearly imply that breach of trust suits have to be instituted in and tried by the Principal Court. This theory gains indirect support from section 92 of the Civil Procedure Code which confers exclusive jurisdiction on the Principal Court for disposal of breach of trust suits. True, that this section is not relevant to the present suit, much less the issues under consideration. But it is a pointer to what the Legislature seems to have deduced from the provisions of the Trust Act when special Legislation to tackle problems besetting public trusts did not exist.

7. Turning to the second issue, learned Counsel has referred to precedents which I now proceed to consider. First is the decision of Naik, J. reported in P. R. Geglani vs. M/s. Beharilal, AIR 1978 Bom. 255. The question there was, as to whether the City Court was the 'District Court' in the context of section 44A(1), Civil Procedure Code. Having regard to the purpose of section 44A, to wit, enable the execution of a decree passed by superior Courts of reciprocating territory without the compulsion of filing a suit in the first instance on the foot of such a decree, it would be correct to infer that the City Court would be the appropriate Court. But the powers of an executing Court cannot be accorded that primacy which vests in a Court called upon to decide suits. In the first case the Court is exercising a more or less quasi-judicial function. The power to decide suits is a more important and an exclusively judicial function. I would therefore confine the decision in Geglani (supra) to the realm of limitations sketched out above. Raja Soap Factory vs. Santharaj, AIR 1965 SC 1449, relates to a passing off action under the Trade and Merchandise Marks Act, 1958. Section 105 of this Act prescribes the forum for such an action to be "any Court not inferior to a District Court having jurisdiction to try the suit". The suit however was instituted in the High Court of Mysore. That High Court was not invested with the ordinary original civil jurisdiction. For that reason the Supreme Court in the above decision directed the return of the plaint for presentation to the proper Court. The Bombay High Court is vested with ordinary original civil jurisdiction and that suffices to show the inapplicability of the decision to the question under consideration. The theory of there being more than one Principal Civil Court of original jurisdiction canvassed by learned Counsel appearing for the appellant has the at-first-glance support of two decisions : AIR 1971 Calcutta 455 and AIR 1971 Delhi 277. The first was a case under the Copyright Act, 1957, section 62 whereof prescribed the filing of suits "in the District Court having jurisdiction". The next was a suit under section 92, Civil Procedure Code. Here the jurisdictional issue was dependent upon an amalgam of the Delhi High Court Act, 1966 and the Punjab Courts Act. It was held that a part of the Delhi District Court's original civil jurisdiction had come to be vested in the High Court of Delhi under the Delhi High Court Act, 1966 for which reason breach of trust suits over a certain pecuniary value could not be instituted in the District Court, which within the limits prescribed, continued to be the Principal Civil Court of original jurisdiction.

8. A slight digression here is necessary. Section 15, Civil Procedure Code has to be read in the context of there existing a hierarchy of Courts. It is for this reason that the section requires the institution of the suit in the Court of lowest competent jurisdiction. Breach of trust suits under the Trusts Act have to be instituted in the Principal Court irrespective of whether it be or not the district Court. Conversely, unless the Apex Court be the Principal Court, such suits will not lie in that Court.

9. As I understand the position, so far as Bombay is concerned, the ordinary original civil jurisdiction is vested in this High Court. Growth of litigation has necessitated legislation to lighten the Court's burden and this has given rise to additional civil Courts in the shape of the Court of Small Causes and the City Court. The Act of 1948 in terms speaks of the City Court being "an additional Civil Court for Greater Bombay". Significantly the said Court has not been declared a District Court under the Act of 1869. The note to Rule 26 of the O. S. Rules show that the territory covered by the High Court's ordinary original civil jurisdiction includes villages of the Bombay Suburban District and Thane District. Thus districts existed or could have been formed to create District Courts in Greater Bombay. What is also indicative of the City Court not being a District Court, is, its lacking the ordinary civil appellate jurisdiction conferred on District Courts under section 8 of the Act of 1869 It is a mere 'additional Civil Court' for Greater Bombay. This is sought to be refuted by pointing to section 12 which prohibits the High Court from entertaining except by withdrawal to itself, any suit or proceeding triable by the City Court. The obvious purpose is to foil the oft-raised plea that a suitor has the option to do forum-shopping where two Courts have jurisdiction to try his cause. There is no warrant for reading into section 12 a declaration of placing the City Court on par with the District Court or making it a Principal Court. Therefore neither the Calcutta nor Delhi decisions apply to the case at hand. To recapitulate, the jurisdiction to try suits like the present one vests in a Principal Court. The City Court is not such a Court, even if we assume (and rightly) that suits like the present one do not come within exception (c) of section 3 of the Act of 1948 Naik, J.'s decision must be confined to what can be a 'District Court' for purposes of section 44A(1), Civil Procedure Code. The Delhi decision operates in a different setting. The decision in Raja Soap Factory (supra) goes against the 1971 Calcutta decision, when it says that even a State's Court at the apex is not to be construed as having ordinary original civil jurisdiction, unless the law so expressly states. Appellant's Counsel refers to the long standing practice in Bombay to file such suits in the City Court, and never an exception having been taken thereto. I would have considered this aspect of the matter for acceding to his request for a reference to a larger Bench, were it not for the patent lack of jurisdiction in the City Court.

10. Holding that the City Court did not have the jurisdiction to try the suit I set aside the impugned order on that very ground. The status quo shall continue for 8 more weeks to enable Appellant to consider his position. Appeal allowed with costs left to be costs in the suit.

Appeal allowed.