IMPORTANT CASE LAWS - Madras High Court

Petition is liable to be set aside – Matter is remitted to the learned trial Judge for fresh consideration on merits and
as per law.
C.P.C., Order 9, Rules 6, 9 –See Limitation Act (1963), Section 5. C.P.C., Order 5, Rules 17, 18 – See
Limitation Act (1963), Section 5, C.P.C., Order 9, Rules 6, 9.
Held:
It is a matter of record that the petitioners filed the application only after affixture of notice in E.A. and the learned
trial Judge conducted the matter in a highly technical manner.
Though the trial Court has recorded that the summons were affixed, there is nothing on record to show that such a
report was made by the process server of the Court. Admittedly, the process server was not examined before the trial
Court.
Trial Court record does not contain the affidavit filed by the process server indicating that the notices issued to the
petitioners were actually affixed on the outer wall of their residence. The said officer was not examined before ordering
substituted service. The record of proceedings gives a clear indication that the process server was not in a position to effect
service on the petitioners. The endorsement proceeds as if the defendants were not found. Therefore, it is evident that it
was not a case of refusal on the part of the defendants to receive the notice.
There is nothing on record to show that a serious attempt was made by the process server to effect service.
There was no such endorsement made by the process server. Not even a report to that effect is found in the
lower Court records. Therefore, it is not clear as to whether summons was really affixed on the outer wall of the residence of
P.W.1 and in whose presence such affixture was made.
2011 (3) CTC 58
Sanjay Gupta and Ors
vs
The Corporation of Chennai, represented by its Commissioner, Ripon Buildings
Code of Civil Procedure, 1908 (5 of 1908), Section 92 and Order 39, Rule 1 – Ingredients of –
Maintainability of Application in previous schemes Suit filed by person having personal interest in Trust property –
Ingredients necessary to file Suit under Section 92 are: (a) There must be allegations of breach of any express or
constructive trust created for public purposes of charitable or religious nature or alternatively direction of Court is
deemed necessary for administration of trust (b) Person moving Court must have interest in Trust, and (c) Such
persons must have obtained leave of Court – Even third parties would be considered to be interested in Trust if
they establish that subservience of their private interest would ultimately lead to subservience of interest of Trust –
Affidavit filed in support of Application narrates purely private interest in Trust properties and it would not
eventually be subservient to interest of Trust – Applications, who could not move Suit under Section 92 could not
indirectly achieve their results by filing Application in previous Scheme Suit – Interim injunction refused as no
prima facie case made out.
Facts:
A Public Trust was created in 1882 with the main object of constructing a Town Half for holding meetings,
concerts, etc. The land over which the hall was constructed was leased by the Corporation of Madras for a period of 99
years. The hall was not put to the use contemplated by Trust after 1963 and substantial portion of the land had been
subleased to an individual and/or Companies floated by him. The sub-lease was extended 1973 and the same is due to
expire in 2028. In 2009 during the pendency of certain litigations on the renewal of lease the Public Trust resolved that the
Trust could be dissolved and the trust and surrendered possession of the lands back to Corporation. The Trust decided to
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