Sham Lal Saraf and another vs Yogiraj Shri Swami Somanand and others

Mian Jalal-Ud-Din, J.—This revision petition is directed against the order dated 19-11-1968 the learned District Judge, Srinagal granting

leave to the plaintiff respondent to institute suit u/s 2 of the Religious Endowment Act of 1977.

Learned counsel for the petitioner has submitted that the order is contrary to law and not in accordance with the spirit of the Religious

Endowment Act, (hereinafter called 'the Act'). The lower court did not issue any process against the petitioners and other respondents and no

preliminary enquiry was conducted in order to ascertain whether there was a prima facie case made out for granting leave to file the suit. The court

of District Judge passed the order behind the back of the petitioners and without applying its mind to the petition. The application seeking leave to

file the suit did not reveal any explicit grounds on which permission could be given and there was no specific allegations made against definite

number of persons who according to the respondent constituted the trustees of the said shrine. Insinuation without any substantial grounds against

the distinguished and reputed persons of integrity have been made for which there were no basis. The plaintiff respondent No. 1 did not belong to

the State of Jammu and Kashmir and was not an interested person within the meaning of Section 2 of the Act It is further submitted that the

impugned order be vacated and the application seeking permission be dismissed.

As against this the learned counsel for the plaintiff respondent has urged that the scope of Section 6 of the Act is limited. The court has not to

embark upon any enquiry before granting leave to file the suit. The lower court did apply its mind to the contents of the application and thereafter

granted the necessary permission to institute the suit. The plaintiff respondent No. 1 was undoubtedly a person interested as he being Hindu was

interested in the performance of the worship or of the service of the religious establishment. The revision petition is misconceived and has got no

substance.

Now Section 2 of the Act provides that any person or persons interested in any religious establishment, or in the performance of the worship or

of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the civil

court the trustees manager or superintendent of such religious establishment for any misfeasance, breach of trust or neglect of duty committed by

such trustee, manager or superintendent in respect of the trusts vested in, and the civil court may make directions as given in the section itself. But

before instituting a suit under this section permission to institute the suit is to be obtained under Sec. 6 of the Act. That section provides that no suit

shall be entertained under the Act without a preliminary application being first made to the court for leave to institute such suit. The court on the

perusal of the application, shall determine whether there are sufficient prima facie grounds for institution of a suit, and if in the judgment of the court

there are such grounds, leave shall be given for its institution. The order under revision is assailed on the grounds that the District Judge could not

grant leave to institute the suit inasmuch as the essential requisites for filing the suit u/s 2 did not exist and that no preliminary enquiry was held.

Now u/s 6 of the Act what the court has to do is; (1) to receive a preliminary application, (2) to peruse the same and to determine whether there

are sufficient prima facie grounds for institution of the suit, (3) and if in its judgment there are such grounds to accord the necessary permission.

This section nowhere envisages the holding of a preliminary enquiry; rather that it is beyond the scope and spirit of the section. The matter of

satisfaction in regard to the existence of a prima facie case rests with the District Judge. It is on mere perusal of the application that he has either to

give leave or refuse the same. He is not to hold any enquiry. Of course, the District Judge has to apply his mind to the contents of the application.

In the case before us it appears that the District Judge has recorded an order of giving permission after he perused the plaint from which he came

to the conclusion that it was a case where permission should be given to the plaintiff to file a suit against the trustees. It was after he applied his

mind that he gave the necessary permission in the matter. There is nothing on the record from which it could be inferred that the District Judge has

not applied his mind to the case before him. The question of granting or refusing permission being determinable by the District Judge the exercise of

discretion by him in the matter cannot be interfered with lightly in revision by the High Court unless it is shown that the order is perverse or is

without jurisdiction or has occasioned failure of justice.

Again, there is no point in saying that the plaintiff respondent No. 1 is not a person interested. He is a Hindu, a Swami and is undoubtedly

interested in the worship of the temple and in its services and it cannot, therefore, be said that he is debarred from instituting the suit u/s 2 of the

Act. Definite allegations have been made in the plaint and in the application which do come within the ambit of Section 2 of the Act.

For the foregoing reasons, I see no force in this revision petition which is hereby dismissed.