IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 233 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE N.N.MATHUR ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- MEMON SULEMAN A KARIM Versus MEMON ABBA ALIAS USMAN ISMAIL -------------------------------------------------------------- Appearance: MR AMAR D MITHANI for Petitioner MS SEJAL K MANDAVIA for Respondent No. 1 NOTICE SERVED for Respondent No. 4, 5 -------------------------------------------------------------- CORAM : MR.JUSTICE N.N.MATHUR Date of decision: 30/03/98 ORAL JUDGEMENT This Revision Application has been filed under section 115 CPC against the order dated 8.12.1997 passed by the learned Civil Judge (JD), Una refusing to grant petitioner's application Exh.11 to reject the plaint for want of sanction of the Advocate General or leave of the Court under Section 92 CPC and or sanction by the Charity Commissioner under Section 51 read with section 50 of the Bombay Public Trust Act. 2. Necessary facts giving rise to the present Revision Application are that a suit was filed in the representative capacity by the residents of City of Una belonging to Memon community. It is stated that the defendants are the Trustees of the Jamat Trust, Una which is createtd for the benefit of Memon community. The said trust is registered under the Bombay Public Trusts Act. It is alleged that the defendants are carrying on the administration of the Trust without following provisions of law and against the interest of the community. It is also alleged that there is a bungling of crores of rupees with a view to benefit friends and relatives of the Trustees. Details of mal-administration are given in the plaint. The plaintiff has prayed for relief in para 10 which reads as under: "(a) A permanent injunction in the nature restraining the defendant personally or through others not to lease out the shop or shops constructed on the suit property without the public auction and advertising in a newspaper be issued, (b) be pleased to declare that the provisions to let out more than one shops privately to a single tenant and to retransfer it and thereby to benefit the middlemen and to incur losses to the trust is illegal and void, (c) be pleased to order the defendants to produce all the books, vouchers, minute book regarding the constructions of shops, (d) the cost of this suit be awarded from the defendants, (e) other relief which found appropriate by the Hon'ble Court may be granted." It is contended by Mr Amar Mithani, learned Advocate appearing for the petitioner that the learned Judge has committed error in rejecting the petitioner's application on the ground of it being premature. It is submitted that the learned Judge ought to have seen the maintainability of the suit only on the basis of allegations made in the plaint without waiting for the written statement and framing of issues. He relies on a decision of the Apex Court, in the case of CHARAN SINGH vs. DARSHAN SINGH, reported in AIR 1975 SC 371 and in the case of R N NARAYAN CHETTIAR v. N LAXMAN CHETIAR, reported in AIR 1991 SC 221. On the other hand, Ms. Sejal Mandavia, learned Advocate appearing for the plaintiff submits that the statement made in the plaint are absolutely false and fabricated. She further submits that the defendant without filing written statement, cannot challenge the maintainability of the suit. She has placed reliance on a decision of the Bombay High Court in the case of NISHIT M PRABHU VARLEKAR v. CHANDRANATH, reported in 1986 Bombay, 46. It is further submitted that the preliminary issue is required to be framed at the stage under Order 14 Rule 2 CPC and that stage not reached. Thus, the contention of Ms. Mandavia is that the view taken by the learned Judge cannot be such which calls for interference by this Court in exercise of powers under 115 CPC. 2. Having heard the learned Advocates for the parties, in my view, this Revision Application deserves to be allowed. Section 92 CPC clearly prohibits filing of suit against a Trust created for the public purpose of a charitable or religious nature on the allegations of breach of any express or constructive trust without the consent of the Advocate-General or the leave of the Court. Various items have been enumerated under sub-clause (1) (a) to (h). Item (d) provides "directing & accounts and inquiries." In the present suit, a relief has been claimed under para 10 to produce all books, vouchers, minute books and construction of shops. This clearly shows that the petitioner wants a decree directing accounts and inquiries. In view of this, the case clearly falls within the four corners of section 92 CPC. I need not go further on the question of sanction under section 51 read with section 50 of the Bombay Public Trusts Act. Order 7 Rule 11 cast the duty on the Court to reject the plaint where the suit appears from the statement in the plaint to be barred by any law. A just reading of the suit clearly shows that the suit is barred by Section 92 CPC. 3. In view of the aforesaid, this Revision Application is allowed. The impugned order dated 8.12.1997 is quashed and set aside. Application Exh.11 is granted and the plaint is rejected. Rule made absolute. ... msp.