SINNAMANI & ANR.versusG. VETTIVEL AND ORS.

                     [2012] 4 S.C.R. 513

                     SIN NAMAN I & ANR.                           A
                               v.
                   G. VETTIVEL AND ORS.
            (Civil Appeal No. 4368 of 2012 etc.)
                        MAY 09, 2012
                                                                  B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Trust Act, 1882 - s. 59 - Trust Original Petition - Filed
by beneficiaries of trust - For execution of the trust - Original
petition rejected being barred by s. 9 CPC as for the relief C
sought, suit alone was maintainable - High Court upholding
the order and also denying conversion of the petition into a
suit - On appeal, Held: s. 59 gives right to the beneficiaries
to sue for execution of trust only by filing a suit and not any
original petition - When the Act provides for filing of a suit, o
suit alone can be filed - In the absence of a statutory provision
conversion of original petition to civil suit or vice-versa is not
permissible - The petition cannot be construed as suit or
equated to be a suit- Code of Civil Procedure, 1908 - s. 26,
r.3(9) and Ors. IV and VII.
                                                                   E
     Appellants-the beneficiaries of different trusts filed
Trust Original Petition. On objection by the opposite party,
the Trust Original Petition was rejected on the ground
interalia that the Trust Original Petition was barred uls. 9
CPC as the relief sought, could have been agitated only           F
by means of a suit. High Court upheld the impugned
order and also held that the Trust Original Petition could
not be converted as a civil suit. Hence the present
appeals.
                                                                  G
    Disposing of the appeals, the Court

    HELD: 1. Section 59 of the Trust Act confers a right
upon the beneficiaries to sue for execution of the trust
which would indicate that the beneficiaries may institute
                         513                                      H
   514     SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A a suit for execution of the trust. Therefore, in order to
  execute the trust, the right is only to file a suit and not
  any original petition. Few of the provisions of the Act
  permit for filing of original petitions. Thus, when the Trust
  Act provides for filing of a suit then suit alone can be filed
B 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. Certain legislations specifically
c provide for conversion of original petition into a suit. The
  Trust Act contains no such enabling provision to convert
  the original petition into a suit. [Paras 11 and 12] [519-C-
  G; 520-E]

       2. A comprehensive reading of r. 3(9) CPC and s.
D 2(14) CPC will make it clear that the original petition filed
  by the appellants cannot either be construed a suit or
  equated to be a suit. The final order passed in the original
  petition cannot also be construed as a decree as defined
  in Section 2(2) C.P.C. It can only be an "order" as defined
E in Section 2(14) C.P.C. The term 'suit', as such is not
  defined in the CPC. However, Section 26, C.P.C. gives an
  indication as to the manner in which suit has to be
  instituted. A suit can be instituted by presentation of a
  plaint and Orders IV and VII C.P.C. deals with the
F 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. [Paras
G 10 and 11] [518-F-G; 519-B-C]

      3. The Trust Oirginal Petition cannot be allowed to be
  converted into a suit. However, the rejection of the Trust
  Original Petition under Order VII Rule 11 CPC shall not
H operate as a bar for the appellants to file a fresh suit in
  accordance with law. [Para 13] [520-F-G]
   SINNAMANI & ANR. v. G. VETIIVEL AND ORS.                515


   P.A. Ahmad Ibrahim v. Food Corporation of India (1999)         A
7 sec 39:1999 (1) Suppl. SCR 498 - relied on.
                     Case Law Reference:
    1999 (1) Suppl. SCR 498        Relied on.       Para 11
                                                                  B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4368 of 2012 etc.

    From the Judgment & Order dated 11.09.2007 of the High
Court of Madras, Madurai Bench in AS. No. 49 of 2006.
                                                                  c
                               WITH
C.A. Nos. 4372-4386 of 2012.

     P.S. Narsimha, T.V. Ratnam, Sriram P., Munawwar
Naseem, V. Prabhakar, Revathy Raghavan, Jyoti Prashar for         D
the Appellants.

   Vijay Hansaria, Ashok Mathur, S. Rajappa for the
Respondents.

    The Judgment of the Court was delivered by                    E
    K.S. RADHAKRISHNAN, J. 1. Leave granted.

     2. These 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.96 of 2002 as a civil suit and be      F
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        G
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.   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        H
    51~        SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A                incorporation till the date of realization.

          b.     To trace the fissipations effected on the schedule
                 Trusts by the I defendant and his associate
                 companies.
B         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.

c         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
D                of creation of the six schedule trusts as to bring the
                 proceeds to the Court."

       3. During the pendency of the OP, respondent Nos.1 to 14
  and 16 filed interlocutory applications separately under Order
E 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.
F
          (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.

G         (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."
H
    SINNAMANI & ANR. v. G. VETIIVEL AND ORS.                 517
           [K.S. RADHAKRISHNAN, J.]

     4. Matter was hotly contested before the Principal District     A
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      B
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. The maintainability of the
appeals was successfully questioned by the respondents
before the High Court, but the High Court converted those            c
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 11 CPC rejecting
                                                                     0
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         E
these appeals have been preferred.

      6. Shri 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        F
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 suo motu
whenever it is brought to the notice of the court that there is a    G
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
                                                                     H
    518      SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A   filing the Trust O.P., the same can always be converted into a
    civil suit.

          7. Shri Vijay Hansaria, learned senior counsel appearing
    for the respondents, on the other hand, supported the findings
8   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) 7 SCC 39 and
    submitted that the Trust O.P. cannot be converted as a civil suit.

       8. We have perused the Trust O.P. filed by the appellants
C 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, Rufe
  3(9) of the Code of Civil Procedure defines Original Petition
  as follows:
D
       "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 court."

      9. Section 2(14) C.P.C. defines the term 'Order' which
E reads as under:

          "2(14). "Order" means the formal expression of any
          decision of a civil court which is not a decree;"

F      10. A comprehensive reading of the above-mentioned
  provisions will make it clear that the Trust O.P. fifed by the
  appellants before the Principal District Judge cannot either tie
  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. ft can only be an "order'' as
G 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. Section 26 reads as under:

H          "26. Institution of suits:
    SINNAMANI & ANR. v. G. VETIIVEL AND ORS.                       519
           [K.S. RADHAKRISHNAN, J.]
      (1)    Every suit shall be instituted by the presentation of         A
             a plaint or in such other matter as may be
             prescribed.

      (2)    In every plaint, facts shall be proved by affidavit."

      11. A suit can be instituted by presentation of a plaint and         B
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                  C
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            D
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              E
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 himself discharged from
his office. Similarly, Section 73 of the Act empowers the
principal civil court of original jurisdiction to appoint new              F
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                    G
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:                                                           H
    520       SUPREME COURT REPORTS                    [2012] 4 S.C.R.


A         "Further, before applying the provisions of Order VI Rul.e
          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
B
          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
c         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
D         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."

        12. Certain legislations specifically provide for conversion
E 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.

F      13. In 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,
G the appeals are disposed of as above. There will be no order
  as to costs.

    K.K.T.                                       Appeals disposed of.

H