IA 11871/2008 in CS(OS) 326/2005 Page 1 of 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI + IA No.11871/2008 in CS(OS) No.326/2005 % Date of Decision: 04.09.2009 Shri Hamid Ahmed …. Plaintiff Through: Mr.Chetan Sharma, Sr.Advocate with Mr.Bobby Lau, Advocate Versus Shri Asad Mueed & Ors …. Defendants Through: Mr.Satinder Singh Bawa, Advocate for the defendant No.1. Mr.Prag Tripathi, Sr.Advocate with Mr.Simran Mehta, Advocate for the defendant No.3. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1. This is an application by the defendant no.1 under Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint on the ground that the suit should have been filed under Section 92 of the Code of Civil Procedure and the suit for declaration and injunction in not maintainable and therefore, the plaint is liable to be rejected. The applicant has contended that the suit has been filed by the plaintiff Sh.Hamid Ahmed, one of the mutawalli of defendant No.6, Hamdard Dawakhana Wakf alleging inter-alia that Chief Mutawalli has been IA 11871/2008 in CS(OS) 326/2005 Page 2 of 30 running the Dawakhana in a wholly arbitrary and autocratic manner only with a view to benefit himself and his sons and has not constituted Majlis-e-Ayan and he has been handing over the entire working of the Dawakhana to his sons contrary to the wishes of Wakif Mutawalli and against the hierarchy as set by the Wakf Deed. 2. The applicant has contended that solely on the basis of the averments made by the plaintiff and without in any way admitting, accepting, conceding the same and without prejudice to any defence, rights, contentions that the defendant no.1/applicant may have, the suit for removal of defendant No.1 from the position of Mutawalli of defendant No.6 as framed by the plaintiff is not maintainable as the same has been filed in clear contravention of the provisions of Section 92 of the CPC. The applicant contended that according to the pleas and contentions of the plaintiff, the appointment of defendant No.1 as mutawalli of defendant No.6 is an attempt on the part of the defendants to thwart the charitable object of defendant No.6 and thus the plaintiff is seeking removal of defendant No.1 from the position of mutawalli. According to the plaintiff Section 92(2) of the Code of Civil Procedure clearly provides that a suit filed in respect of affairs of an alleged public charity seeking any one of the reliefs enumerated in Section 92(1) of Code of Civil Procedure can only be filed in conformity with the provisions of said section. The relief sought by the plaintiff thus falls within the ambit of Section 92(1)a) and thus the suit does not fulfill the IA 11871/2008 in CS(OS) 326/2005 Page 3 of 30 fundamental requirements as contemplated under Section 92 nor the plaintiff has sought leave under Section 92 of the Code of Civil Procedure which is not a procedural formality but is in fact mandatory and goes to the very root of the jurisdiction and, therefore, the suit filed by the plaintiff without obtaining the prior leave of the Court and without being filed on behalf of two persons is barred and the plaint is liable to be rejected. The applicant also contended that a special remedy under Section 92 of the Code of Civil Procedure bars the general remedy of an ordinary civil suit and Section 92 is an exhaustive provision in respect of a suit seeking any of the reliefs enumerated in Section 92(1). In the circumstances, the rejection of the plaint is sought under Order 7 Rule 11(d) of the Code of Civil Procedure. 3. The application is contested by the plaintiff contending inter-alia that the application is not maintainable and has been filed with a view to delay the proceedings. According to the plaintiff the suit seeks to question the very right of defendant No.1 to hold and assume office who is a mutawalli de son tort. According to the plaintiff none of the matters assailed in the suit are in the realm of public trust of religious charitable character or otherwise breach of trust or for administration of trust. It is also contended that that the present legal proceeding is not for the benefit of the general public but is a private action against a wholly illegal act by defendants No.1 & 2. It is also contended by the plaintiff that the defendant no.1/applicant has failed to show as to how IA 11871/2008 in CS(OS) 326/2005 Page 4 of 30 suit appears from the statement in the plaint to be barred by any law. It is pleaded that the suit is maintainable and is not barred under Section 92 of the Code of Civil Procedure. The reliefs sought by the plaintiff do not fall within the purview of Section 92 of the Code of Civil Procedure which is also apparent from the fact that the suit has been filed by a single person. 4. The application of the contested by the non-applicant contending inter-alia that the application is not maintainable and apart from the belated nature of the application and its malafide intention to delay the proceedings. It is further contended that the suit seeks to declare the appointment of the applicant end his assumption of office illegal, wrong and void which itself is vitiated at the root. It is pleaded that defendant no. 1 is mutawalli de son tort. The non-applicant also contended that the suit is instituted by a single individual and the matter assailed in the suit are not within the realm of public trust of religious charitable character or otherwise of breach of trust or for administration of trust. It has also been contended that the suit is not for the benefit of general public but is a private action against a wholly illegal act perpetrated by applicant and defendant no.2. In the circumstances it is prayed that the application be dismissed. 5. The learned counsel for the parties have been heard at length. The matter was heard on the interim application for injunction, IA 11871/2008 in CS(OS) 326/2005 Page 5 of 30 however, the order could not be pronounced as some of the documents were in Urdu whose translation was stated to have been filed but which were not filed and other reasons. The matter was, therefore, listed for rehearing. Even during the arguments for interim orders the plea of suit being barred under Section 92 was raised. The matter was, therefore, relisted for hearing whereafter the present application under Order 7 Rule 11(d) of the Code of Civil Procedure was filed by the defendant no.1/applicant. It is also relevant to note on perusal of the record that an earlier application under Order 7 Rule 11 being IA No.6980/2005 is on record on which notice was not issued. The pendency of the earlier application had not been pointed out either by the defendant no1. / applicant nor by the plaintiff, nor while arguing the present application being IA No.11871/2008 also filed by the defendant no.1/applicant under Order 7 Rule 11(d) of the Code of Civil Procedure, the pendency of earlier application was pointed out. 6. Perusal of the plaint reveals that the plaintiff who himself is a mutawalli seeks appointment of defendant No.1, another mutawalli as wrong, illegal, arbitrary, void and against the provision of Wakf Deed and also seeks permanent injunction against him to act as a mutawalli or taking part in the affairs of the wakf. Paras 1 to 21 merely refers how the wakf was created by Wakif Mutawalli, Hakim Abdul Hameed who was also the chairman. IA 11871/2008 in CS(OS) 326/2005 Page 6 of 30 7. The plea of the plaintiff is that his grandfather Mr. Hakim Abdul Hameed (Wakif Mutawalli) and father of the defendant Nos.2 & 3 expired and after his demise, Majlis-e-Ayan a body for general superintendence of the wakf was to be formed for supervision and functioning of the dawakhana. It is asserted that defendant No.2 who is the Chief mutawalli has been running a dawakhana in a wholly arbitrary and autocratic manner with a view to benefit himself and his sons and he has not constituted Majlis-e-Ayan even six years after the demise of Wakif mutawalli till the time of filing of the suit in March, 2005 or till filing of the present application. The plaintiff has pleaded that defendant No.2 Chief mutawalli has been acting autocratically with a view to benefit his sons including defendant No.1 whose removal is sought and he is handing over the entire working of the dawakhana to his sons contrary to the wishes of late Wakif Mutawalli and is acting against the hierarchy as set by the wakf deed. 8. The plaintiff has categorically asserted in the plaint that defendants No.1, 2 & 4 are taking decisions contrary to the interest of the dawakhana as they are carrying on work of massive renovation without any consultation and they are also buying and selling the properties without consultation with the mutawallis which cannot be permitted. The grievance is also made about Rs.154 crores lying in the bank accounts which are not spent in accordance with the wakf deed. It is pleaded that non utilizing the funds in accordance with the deeds IA 11871/2008 in CS(OS) 326/2005 Page 7 of 30 and declaration is against the interest of the wakf. In continuation of the misdeeds, the chief mutawalli defendant No.2 is alleged to have appointed his son defendant No.1 in contravention and against the provisions of the wakf deed as 5th mutawalli which appointment is wholly, illegal and fraudulent. The allegation is also made regarding running of dawakhana by defendant No.1 & 4 contrary to the provisions of wakf deed. The relevant paragraphs of the plaint raising these pleas from paras 22 to 29 are reproduced for the sake of reference:- 22. That unfortunately in 1999 the father of the defendants No.2 and 3, the grand-father of the plaintiff, i.e. Wakif Mutawalli expired. As per the wishes of the late Wakif Mutawalli a Mujlis-e-Ayan which is a body for general superintendence of the Wakf was to be formed for supervision and functioning of the Dawakhana. However the defendant No.2 who was the Chief Mutawalli and who has been running the Dawakhana in a wholly arbitrary and autocratic manner, only with a view to benefit himself and his sons has not yet constituted the Mujlis-e-Ayan which was required to be constituted although a period of about 6 years has passed since the death of the Wakif Mutawalli and defendant No.2. Chief Mutawalli has been since then acting autocratically with a view to benefit his sons. He has been handing over the entire working of the Dawakhana to his sons contrary to the wishes of the late Wakif Mutawalli and against the hierarchy as set by the Wakf Deed. 23. That similarly the defendants 1, 2 and 4 are taking decisions contrary to the interest of the Dawakhana inasmuch as they are carrying on the work of massive renovation without any consultation as also buying and selling of properties without consultation with the Muttawallis which cannot be permitted. IA 11871/2008 in CS(OS) 326/2005 Page 8 of 30 24. That similarly there are huge amounts to the extent of Rs.154 crores which are lying in the bank accounts of the organization. The said amounts are not being spent in accordance with the Wakf Deed and the Declaration. The non utilization of the funds in accordance with the Deeds and Declaration and keeping the same in the bank accounts is against the interests of the organization. 25. That with a view to involve and hand over the work of the Dawakhana to his sons, he in contravention and against the provisions of the Wakf Deed appointed his sons Mr.Asad Mueed as a Fifth Mutawalli. The said appointment is wholly illegal, fraudulent and not as per the provisions of Wakf Deed. 26. That Mr.Asad Mueed could not have been appointed as a Fifth Mutawalli as no further Mutawalli or Mutawallis could have been added or altered during the life-time of the Mutawallis so appointed by the Wakif Mutawalli. 27. That Chief Mutawalli in collusion and conspiracy with defendant No.1 and 4 against defendant No.3 and plaintiff has been taking steps and running the Dawakhana contrary to the provisions of the Wakf Deed. 28. The defendant No.2 has been without the consent and approval of the plaintiff setting up factories which are not in the interest of the Dawakhana and public at large, the defendant No.2 is also selling and buying the property without consulting or taking approval of any kind whatsoever from the plaintiff and/or other Mutawallis. 29. That the defendant No.2 is carrying out the function of buying/selling property in the name of the Dawakhana through his son and is only encouraging and promoting his sons which is not in the interest of the Dawakhana and is contrary to the Wakf Deed.” 9. Similarly averments have also been made by the plaintiff in his replication to the written statement filed on behalf of defendant No.1. It IA 11871/2008 in CS(OS) 326/2005 Page 9 of 30 has been pleaded that defendant No.1 & defendant No.2 with a view to usurp the properties of the wakf and so as to deny other mutawallis of any information of any kind whatsoever in regard to the functioning of the wakf has not convened to Majlis-e-Ayan inspite of several written and oral requests made by the plaintiff and defendant No.3 in this regard. It is also contended that the properties have been sold in a clandestine manner. The plea of the plaintiff is that according to the wakf deed the income and amounts were to be utilized for the purpose of charity, however, instead of utilizing the money for charity about 154 crores are lying in fixed deposit. Other incidents of charity work not being carried out by defendant No.2 is also alleged and it is asserted that defendant Nos.2 & 4 are bent upon circumventing the wakf by keeping the money legitimately meant for charity. 10 The learned counsel for the parties has argued the matter on various dates whether the plaint is liable to be rejected or not under Order 7 Rule 11 (d) of the Code of Civil Procedure. The counsel for the applicant has relied on AIR 1940 Patna 425, Ramdas Bhagat v. Krishna Prasad Tewari and Ors; (2003) 1 SCC 557, Saleem Bhai and Ors v. State of Maharashtra and Ors; 27(1985) DLT 68, Hari Bhagwan Sharma and Ors v. Badri Bhagat Jhandewalan Temple Society; 2121(1982) DLT 404 (DB), Shanti Devi v. State (Delhi Adminstration); AIR 1966 Jammu & Kashmir 31, Arjun Nath and Anr v. Kailash and Ors; AIR 1972 Rajasthan 263, Association of Radhaswami Dera Baba Bagga Singh and IA 11871/2008 in CS(OS) 326/2005 Page 10 of 30 Anr v. Gurnam Singh and Ors; AIR 1960 Calcutta 558, Sarat K.Mitra v. Hem Ch.Dey and Ors to contend that the suit is for removal of a trustee as contemplated under Section 92 (1)(a) of the Code of Civil Procedure and, therefore, the same being not in accordance with the provisions of said section is barred and the plaint is liable to be rejected. 11. Per contra the learned counsel for the plaintiff/non applicant per contra has relied on 156(2009) DLT 697 (DB), Anil Nanda and Anr v. Escorts Ltd and Ors; AIR 2008 SC 1633, Vidyodaya Trust v. Mohan Prasad and Ors; 2008 (104) DRJ 478, Anil Nanda and Another v. Escorts Ltd and Ors; AIR 1976 SC 1569, Syed Mohd.Salie Labbai v. Mohd.Hanifa; Kabul Singh and Anr v. Ram Singh and Ors, AIR 1986 Allahabad 75; Duttgir Mahant v. Rishi Ram, AIR 1993 P & H 231; Sundralingam Chettiar v. S.Nagalingam & Ors, AIR 1958 Madras; Janaki Bai Ammal v. Sri Tiruchitrambala, AIR 1935 Madras 825; Sanat Kumar Mitra v. Hem Chandra Dey & Ors, AIR 1961 Calcutta 411; Sugra Bibi v. Hazi Kummu Mia, AIR 1969 SC 884 and Abdur Rahim & Ors v. Syed Abu Mohomed Barkat Ali Shah & Ors, AIR 1928 Privy Council 16 to contend that the suit simplicitor for removal of defendant no.1 who is now alleged to be a trustee de son tort is maintainable as it is filed only by one person and the relief claimed are not for appointment of another trustee in place of defendant No.1 nor it is for administration and running of the wakf, defendant No.6. IA 11871/2008 in CS(OS) 326/2005 Page 11 of 30 12. Order 7 Rule 11(d) contemplates that where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is liable to be rejected under Order 7 Rule 11, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint Under Order 7 Rule 11 of the Code of Civil Procedure gets attracted. For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be unequivocal, categorical and specific leading to only conclusion that the plaint is barred. Rejection of plaint is a serious matter as it non suits the plaintiff and kills the cause of action and consequently it cannot be ordered cursorily without satisfying the requirements of the said provision. The effect of dismissal of suit is altogether different and distinct from the effect of rejection of the plaint. In case plaint is rejected under Order 7 Rule 11 of CPC, filing of a fresh plaint in respect of the same cause of action is specifically, permitted under Order VII Rule 13 of CPC. Altogether different consequence follows in the event of dismissal of suit, which has the effect of precluding the plaintiff from filing a fresh suit on the same cause of action. Legal proposition that to decide the matter under order 7 rule 11 of the Code of Civil Procedure, averments in plaint only have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint order 7 rule 11 of the Code of Civil IA 11871/2008 in CS(OS) 326/2005 Page 12 of 30 Procedure gets attracted or not can be culled from 2005 (4) AD (Delhi) 541, Kanwal Kishore Manchanda Vs S.D.Technical Services Pvt. Ltd.; 2005 (2) AD (Delhi) 430, Arvinda Kumar Singh Vs Hardayal Kaur; 2005 (116) DLT 191, Asha Bhatia Vs V.L.Bhatia; 2003 (5) AD (Delhi) 370, Punam Laroia Vs Sanjeev Laroia 2004 (111) DLT 121, Condour Power Products Pvt. Ltd. Vs Sandeep Rohtagi. 13. Relying on Kabul Singh and another (supra), it is contended that in a suit where the primary object is vindication of individual or personal rights of plaintiff himself, action under Section 92 of the Code of Civil Procedure does not lie. It was further contended that if the object of the suit is to settle controversy about right to manage trust between present trustees and some other new trustees then suit is outside the purview of Section 92. A suit under Section 92 of the Code of Civil Procedure is a suit of special nature which pre-supposes the existence of a public trust of religious or charitable nature and the Court is required to ascertain from the plaint the dominant purpose of the suit. In this case, the plaintiffs residents of Tehri having faith in Sikh religion of Guru Granth Sahib claimed that the trustees of the trust be removed and a scheme for management of the trust be framed and new trustee in accordance with such scheme be appointed and also sought rendition of accounts. In defense it was pleaded that Maharaja Tehri Garhwal had a piece of land belonging to State and entrusted the management thereof to the brother of defendant with right to nominate IA 11871/2008 in CS(OS) 326/2005 Page 13 of 30 his successor and the residents of Tehri are not entitled to intermeddle and that the mis-management of the affairs of the Gurudwara were denied. Considering the facts that the plaint was conspicuous by complete absence of averment charging the trustees of mal- administration or misconduct in respect of the trust, it was held that no foundation was laid in the plaint to seek their removal and the purpose of the suit was only to settle the controversy, whether the trustees- defendants had rightful claim to manage the affairs of the trust in preference to the trustee alleged to have been elected by residents of the town. In these circumstances, it was held that the suit would be outside the purview of Section 92. It was held that the relief of removal of the members of the present trust was of little consequence and the suit could not be under Section 92 of Code of Civil Procedure. The court in Kabul Singh and another (supra) had relied on Swami Parmatmanand Saraswati v. Ramji Tripathi, (1974) 2 SCC 695 and Charan Singh v. Darshan Singh (1975) 1 SCC 298 holding that a suit under Section 92 of Code of Civil Procedure is a suit of a special nature which presupposes the existence of a public trust of religious or charitable nature. The Court is required to ascertain from the plaint the dominant purpose of the suit. If on an analysis of the averments contained the plaint, it transpires that the primary object behind the suit was the vindication of individual or personal rights of third persons or the plaintiffs themselves, an action under this provisions does not lie. It was further held that even if all the other ingredients of a suit under IA 11871/2008 in CS(OS) 326/2005 Page 14 of 30 Section 92 are made out and it is clear that the plaintiffs are 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 in whom they are interested, then the suit would be outside the scope of Section 92. A suit whose primary object or purpose to remedy the infringement of an individual right or to vindicate a private right does not fall under Section 92 of the Code of Civil Procedure. 14. In Duttgir Mahant (supra), a single Judge of Punjab and Haryana High Court had held that Section 92 of the Code of Civil Procedure has no application unless three conditions are fulfilled, i.e., the suit relates to public, charitable or religious trust; it is founded on an allegation of breach of trust or the direction of the court is required for administration of the trust and the reliefs claimed are those which are mentioned in the said Section. It was held that such a suit is one of a special nature and therefore the allegation of breach of trust is not substantial or if the plaintiffs fails to make out a case for a direction for proper administration, the very foundation of the suit would fail. In this case, a suit was filed under Section 92 for removal of defendants from the trusteeship of the Dera and for appointment of new trustees for the administration of the property of the Dera which is a religious institution where persons belonging to various communities come for worship. IA 11871/2008 in CS(OS) 326/2005 Page 15 of 30 15. On the facts and circumstances of the case, it was held that the real test for the applicability of the Section 92 is to see whether suit is fundamentally on behalf of public for vindication of a public right and in order to apply the