IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5774 of 2006 (O&M) Date of decision: March 08, 2011 Surender Kumar Mehta and another .. Petitioners Vs. Guru Granth Sahib, Gurudwara Karamsar, Rara Sahib, Ludhiana and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Deepak Thapar, Advocate for the petitioner. Mr. Amit Jain, Advocate for respondents No.1 to 5. Mr. Ashutosh Hoshairpuri, Advocate for the respondents No.8, 13, 14, 20 and 21. Respondents No.12 and 19 ex-parte. A.N. Jindal, J Assailed in this petition is the order dated 22.9.2006 refusing to revoke the permission granted ex-parte to the plaintiffs to file suit under Section 92 of the CPC. The crucial questions to be determined in this case are as follows:- 1. whether the court had the jurisdiction to dispense with the notice under Section 92 of the Code before granting permission to the plaintiffs to file the suit under Section 92 of CPC? 2. Whether the order of revocation passed by the trial court in the absence of the Trust, not party to the suit, was valid? 3. Whether the suit as framed by the plaintiffs was competent under Section 92 of the Code? 4. If the suit was not found to be competent, then whether the relief having claimed under Section 92 of the Code in the alternative, the plaint could be rejected? The factual background of the case is that Guru Granth Sahib, Gurudwara Karamsar, Rara Sahib, District Ludhiana through S/Shri Mohan Civil Revision No. 5774 of 2006 (O&M) -2- *** Singh, Harbhajan Singh and four others filed a suit for possession of the land, building structure, rendition of accounts, removal of defendants No.1 to 13 from the trustship and appointing a new set of trustees of the said Trust against 18 persons without impleading the Trust as party- defendant. The plaintiff had also filed a suit in the alternative with the following prayer :- “........... or in the alternative, if for any reason, the declaration regarding Trust is not granted, then a suit under Section 92 C.P.C. for removal of defendants No.1 to 13 from the Trustship and appointing a new set of trustees and directing accounts and enquiries and formulating for settling a scheme for management of the property so as to fulfill Charitable and religious objectives thereof.” It has been averred that Guru Granth Sahib, Gurudwara Karamsar, Rara Sahib, District Ludhiana has chequered history. Initially, Ishar Singh was the Mohant of the said Gurudwara. He had a Guru Bhai namely Kishan Singh Ji. The people donated land in the name of Gurudwara since the year 1935 onwards. Sant Ishar Singh and Sant Kishan Singh purchased certain land in their own names in the year 1955 or thereafter. Sant Ishar Singh died in the year 1976 and he nominated Sant Kishan Singh Ji as Mahant of the said Gurudwara. Later on, a Trust in the name of “Gurudwara Karamsar Rara Sahib Trust” came into being for managing the properties of Gurudwara. Later on, Sant Kishan Singh Ji also expired. Consequently, a dispute arose between the plaintiffs and the defendants. In the year 1996, the respondents No.1 to 5 (plaintiffs) filed a suit for possession as described in the head note of the plaint, as being the properties of Guru Granth Sahib Gurudwara Karamsar Rara Sahib after holding the trust deed dated 24.2.1977 registered on 30.3.1977 executed by Sant Kishan Singh Ji as illegal, void, arbitrary without jurisdiction and does not bind the respondent No.1 (plaintiff No.1); for rendition of accounts and in the alternative the relief as detailed above was claimed. Along with the suit an application for permission under Section 92 of CPC was filed which was granted by the court vide its order dated 3.4.1996. Civil Revision No. 5774 of 2006 (O&M) -3- *** On notice, the defendants appeared and moved an application under Order VII Rule 11 CPC for rejecting the plaint on the ground that the suit was not maintainable and was not properly instituted; Civil Judge (Jr. Division) was not competent to entertain the suit and it was only principle court that could try such suit where Trust concerned is situated. The plaintiffs have neither any locus standi to file the suit nor could claim permission. Neither permission from the Advocate General has been claimed nor persons interested in the Trust have filed the suit. During the pendency of the application under Order VII Rule 11 CPC, defendants came to know that the permission had already been granted ex-parte on 3.4.1996 by the Civil Judge (Jr. Division), Ludhiana, therefore, the plaintiffs, who had filed the second application under Section 92 of CPC withdrew the same and contested the application under Order VII Rule 11 CPC. Thereafter, the petitioners along with other defendants moved an application for revocation of the ex-parte permission granted on 3.4.1996 under Section 92 of the Code by the Civil Judge (Jr. Division), Ludhiana, on the ground that the plaintiff had claimed independent right in the suit property by claiming that “Guru Granth Sahib Gurudwara Karamsar Rara Sahib” is the owner of the property and that the claim does not fall within the ambit of Section 92 of the Code and the permission so granted was invalid. Ultimately the said application was dismissed which is now under challenge. Arguments heard. Record perused. As regards the leave to file the suit under Section 92 of the Code, and competency to grant ex-parte permission is concerned, the ex- parte order dated 3.4.1996 was on subjective satisfaction of the court and the same was not challenged by way of any appeal or revision. However, at the same time, that does not in any way effect the right of the petitioner to apply for revocation as the ex-parte leave to file the suit could be challenged by applying for revocation of the same. In this regard, the Apex Court in case B.S. Adityan and others vs. B. Ramachandran Adityan and others AIR 2004 S.C. 3448 had considered in detail the history of legislation and discussed the question, “whether the court was required to give an opportunity of being heard to the proposed defendant before Civil Revision No. 5774 of 2006 (O&M) -4- *** granting leave to institute the suit under Section 92 of CPC and settled the law on the matter. The relevant extract is reproduced as under :- “......... Although as a rule of caution, the Court should normally give notice to the defendants before granting leave under the said section (Section 92) to institute a suit, the court isnot bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. Grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law or even in the course of suit which may be established that the suit does not fall within the scope of Section 92 CPC. In that view of the matter, we do not think, there is any reason for us to interfere with the order made by the High Court.” In this view of the matter, it could be safely observed that it was not necessary at all for the trial court to issue notice before granting permission. However, the application for revocation of permission could be considered, therefore, the application for revocation of the permission moved by the petitioner was quite competent. Coming to the second issue, “whether the suit filed by the plaintiff under Section 92 of the Code, is competent?” Before determining the controversy into question, it would be essential to reiterate the provisions of sub- section (1) of Section 92 of the Code which read as under :- “In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest Civil Revision No. 5774 of 2006 (O&M) -5- *** in the trust and having obtained the leave of the court may institute a suit, whether contentious or not, in the principal Civil Court, of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject- matter of the trust is situate to obtain a decree - (a) removing any trustee; (b) appointing a new trustee; © vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring which proposition of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.” From the bare reading of this Section it transpires that in order to apply under Section 92 of the Code, the following conditions must be satisfied :- “(a) There is a trust created for public purpose of a charitable or generous nature; (b) There is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such trust; © The suit must be a representative one on behalf of the public and is not by individuals for their own interest; Civil Revision No. 5774 of 2006 (O&M) -6- *** and (d) the relief claimed in the suit is the one or the other reliefs mentioned in the section. The rule based for the applicability of Section 92 of the Code is whether the suit is independently on behalf of the public for vindication of the public and by an individual for personal right. Apparently, if the frame of the suit is seen, it has not been filed in a representative capacity but it has been filed on behalf of Guru Granth Sahib Gurudwara Karamsar, Rara Sahib, Ludhiana for possession of the property in hands of the defendants claiming themselves to be the members of the Trust. It has been observed by the Calcutta High Court in case Sumit Pani Brahmachari v. Mayapur Chaitanya Math, AIR 1999 Cal 132 that if the suit is filed by the office bearers or the members of the governing body of a religious math for proper maintenance and management of math property cannot be treated a suit under Section 92 of the Code. Thus, the present suit filed by Guru Granth Sahib Gurudwara Karamsar Rara Sahib, Ludhiana against the alleged trustees without impleading the Trust as party- defendant, the suit could be said to be simpliciter a suit by the Trust/devotees/representatives claiming on behalf of the Gurudwara for possession of the property relating to the Gurudwara. Now coming to the next question, “whether the suit falls within the purview of Section 92 of the Act?” The conditions of the suit to be filled under Section 92 of the Code are as follows :- (1) Existence of a trust for public purpose of religious or charitable nature; (2) Suit must be of a representative character to enforce public right, i.e. it must be not only in the interest of the plaintiff individually, but in the interest of the public, or in the interest of the trust itself; (3) Suit must be by two or more persons having interest in the trust; (4) Suit must be for an alleged breach of trust or circumstances necessitating the direction of the court for Civil Revision No. 5774 of 2006 (O&M) -7- *** the administration of the trust; (5) The relief sought must fall within one or more clauses (a) to (h). Neither the present suit has been filed in a representative capacity nor by the persons having interest in the trust. The trust has not been impleaded as party- defendant. In the absence of the trust as party, the suit under Section 92 of the Code was not competent. Similar observations were made by the Madras High Court in case L.M. Menezes and others vs. Most Rev. Arul Das Jamas and others, AIR 2003 Madras 241. As regards the argument of the learned counsel for the respondent that since the persons are interested in the suit properties, therefore, they certainly could be said to be persons interested in the Trust, but in the absence of such averments, it was difficult to hold that the plaintiffs were the persons interested in the Trust. Similar observations were made in L.M. Menezes's case (supra), wherein it was observed as under :- “It is, therefore, clear from the aforesaid decisions and discussion that simply because the plaintiffs are respectable persons of the locality and they have taken part in social activities, they are not sufficient to come within the category of 'persons interested' in the Trust as contemplated under Section 92 CPC. Under the circumstance, I am of the view that the leave already granted is liable to be revoked on the ground that the plaintiffs are not persons interested in the Trust .....” As regards the defective frame of the suit, it may be observed that the suit was not filed on behalf of the entire body of persons who are interested in the Trust and it has not been filed by the representatives of the large number of persons who have common interest. Thus, the suit having been filed neither in a representative capacity, nor with the permission of the Advocate General cannot be said to be competent. Similarly, the Apex Court while dealing with the issue observed in case R. Venugopala Naidu and others vs. Venkatarayulu Naidu Charities and others 1989 Supp (2) Civil Revision No. 5774 of 2006 (O&M) -8- *** Supreme Court Cases 356 as under :- “9. The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of public rights in the public trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit- title in that event would show only their names as plaintiffs. Can we say that the persons whose names are on the suit- title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 of the Code is, thus a representative suit and as such binds not only the parties named in the suit title but all those who are interested in the trust. It is for that reason that Explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from re- agitating the matters directly land substantially in issue in an early suit under Section 92 of the Code. Thus, the present suit having not been filed by two or more persons interested in the Trust in a representative capacity, cannot be said to be correctly farmed. Section 92 of the Code presupposes the existence of the public trust of a religious and charitable character and there was a breach of such trust requiring the direction of the court for administration of the trust. However, the suit filed by the individuals for infringement of their rights is a suit to vindicate the private rights which is outside the scope of Section 92 of the Code, or brought by the individual or by the idol. The frame of the suit is to be gone into. Similar observations were made in case Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another Civil Revision No. 5774 of 2006 (O&M) -9- *** AIR 1974 Supreme Court 2141 which reads as under :- “10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegations of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92, (see Shanmukham v. Govinda, AIR 1938 Mad 92; Tirumalai Devasthanamas v. Krishnayya, AIR 1943 Mad 466 (FB); Sugra Bibi v. Hazi Kummu Mia (1969) 3 SCR 83 = (AIR 1969 SC 884) & Mullal ; Civil Procedure Code, (13th Ed.) Vol. 1, p.400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs, specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the Civil Revision No. 5774 of 2006 (O&M) -10- *** section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S. 92.” The present suit is in two parts. The devotees on behalf of the Gurudwara have filed the suit against the purported members of the Trust on infringement of private rights and in the alternative, have filed a suit under Section 92 of the Code, for removal of the trustees and appointment of new trustees and rendition of accounts etc. Apparently, at the face of it, in the absence of showing the persons interested in the trust, and in the absence of the trust as a party defendant, the suit for alternative claim cannot continue. However, the suit filed by the institution itself by its representative and devotees was maintainable and in that case Clause (f) of Section 92 (1) of the Code does not apply and, in such situation, suit under Section 92 not necessary and the court had jurisdiction to give directions asked for in the suit as those directions were of the nature of ordinary administration of the property of the institution. Eventually, this court reaches the conclusion that the suit filed on behalf of Guru Granth Sahib Gurudwara Karamsar Rara Sahib, Ludhiana on infringement of its rights filed by its devotees was competent whereas, the permission as granted by the court under Section 92 of the Code, was bound to be revoked. The trial court appears to have not taken right view of the matter, as such, interference at my end has become inevitable. Resultantly, this petition is partly accepted and the impugned order is set aside to the extent that the suit preferred by Guru Granth Sahib Gurudwara Karamsar Rara Sahib, Ludhiana for claiming relief in the first part of the title clause would continue, however, since permission for filing the suit under Section 92 of the Code is being revoked, therefore, the relief as claimed in the alternative would not be maintainable. March 08, 2011 (A.N. Jindal) deepak Judge