IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.428 of 2009 MAHADEO SINGH Versus RAJNAGAR RELIGIOUS TRUST & ORS ----------- 3 08.04.2009 Heard learned counsel for the petitioner. Learned Government Advocate No. VI appears for opposite party nos. 4 and 5. This revision application has been filed by the plaintiff against order dated 6.02.2009 passed by Sub-Judge, Ist Madhubani, in Money Suit No. 2 of 2008 by which the learned court below has held that the suit is not maintainable for non-compliance of provisions of Section 78 of the Bihar Hindu Religious Trust Act and has directed the office to return the plaint to the plaintiff for filing a fresh suit after compliance of the provision of Section 78. Learned counsel for the petitioner submits that, as apparent from the copy of the plaint annexed as Annexure – 1, neither the Board nor any of its officials have been made party defendant in the suit nor any relief has been sought for against them and therefore the embargo of Section 78 of the Bihar Hindu Religious Trust Act does not come into play in the case. - 2 - The said Section 78 has been quoted by learned trial court in the order itself. From bare reading of the said Section 78, it is apparent that a suit is barred without notice of two months against the “Board or the President or any other officer or servant of the Board for anything done or purported to be done under this Act.” Thus it is apparent that it is the Board and its officials who are protected under Section 78 against any Act done by them under the provisions of the Bihar Hindu Religious Trust Act without a notice of two months. The distinction between the Board under the Act and religious trust, private or public has to be borne in mind for consideration of application of Section 78 in such matters. The petitioner has filed the suit against a religious trust and its functionaries. The religious trust may be public trust or a private trust. The acts complained of in the plaint may be there own independent act which may not be related to any action by any authority of the Board under the provisions of the Bihar Hindu Religious Trust Act as such. Unless and until there is a clear pleading of - 3 - any act or omission on the part of authorities of the “Board” under the provision of the Act leading to the cause of action to the plaintiff, it cannot be held that a notice under Section 78 of the Bihar Hindu Religious Trust Act is necessary for maintaining the suit. Nothing has been shown from the plaint that the act alleged against the defendants in away involved any action by any authority by the Board. In that view of the matter, apparently Section 78 of the Bihar Hindu Religious Trust Act does not come into play as an impediment in maintaining the suit. In the circumstances, the order impugned passed by the learned Sub-Judge Ist has been passed clearly in erroneous exercise of jurisdiction and therefore the same is set aside. The learned court below is directed to take back the plaint on record and proceed with the same in accordance with law for its admission. The revision application is thus allowed. Kundan (J. N. Singh, J.)