Thakardawara and Others vs Nagar Singh and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Thakardwara Patiala Mohalla Bibrian and others (hereinafter described as ''the petitioners'') directed against the order passed by the learned Civil Judge (Sr. Division), Patiala, dated 5.2.1998. By virtue of the impugned order the learned trial Court allowed the application filed by the plaintiff-respondent to institute the suit u/s 92 of the CPC for removal of petitioner No. 3 Mahant Garib Dass from Mohtmimship of Thakardwara Patiala and further held that the said permission has been granted after filing the suit and, therefore, the suit be taken to have been filed on the date the permission had been granted.

The relevant facts are that respondents who were plaintiffs filed a suit u/s 92 of the CPC for removal of petitioner No. 3 from the Mohmimship of Thakaidwara Patiala and for appointment of new trustees. It was prayed that petitioner No. 3 should be directed to deliver possession of the property of the said Thakardwara to the new trustees. Notice was issued to the petitioners and they filed a written statement. A preliminary objection was raised regarding maintainability of the suit for want of permission of the Court in view of Section 92 of the Code of Civil Procedure.

When this objection was taken the respondents filed an application alleging that petitioner No. 3 has misutilised the income of the Thakardwara (petitioners 1 and 2) and is misusing the property of the said Thakardwara. Inadvertantly the respondents failed to file a formal application seeking permission of the Court for institution of the suit. They requested for the said permission. The said application was contested by the petitioners. It is contended that the suit was earlier filed in the Court of District Judge, Patiala without any permission of the. court. The plaint was returned but still no application seeking permission u/s 92 of the CPC was filed. Therefore, the suit was not maintainable. It was further contended that no permission as such should be granted.

The learned trial Court relied upon the decision of the Orissa High Court in the case of Kintali China Jaganadham and Others Vs. K. Laxmi Naidu and Others, and held that such a permission could be granted subsequently and suit be taken to have been filed on the date the permission has been granted. It was further held that falsity and truthfulness of questions has to be taken subsequently. Taking stock of the facts, the court granted permission for institution of the suit. Hence, the present revision petition.

The relevant portions of sub-section (1) and (2) of Section 92 of the CPC read as under :-

"92(1) 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 in the trust and having obtained the (leave of the Court), may institute a suit, whether contenuous 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;

xx xx xx xx (2) Save as provide by the Religious Endowments Act, 1863 (20 of 1963) (or by any corresponding law in force in (the territories which, immediately before the 1st November 1956. were comprised in part B States) no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section".

It is abundantly dear from aforesaid that a suit u/s 92 for removal and appointment of a new trustee can only be filed with permission of the Court. Patiala was forming part of B States and keeping in view sub-section (2) which makes it clear that permission of the Court would still be required and provisions of Section 92 in this regard are mandatory. If no permission is taken, the suit as such will not be maintainable,

Learned counsel for the petitioners urged that no such permission had been taken and, therefore, the very institution of the suit was invalid. Such a permission could not be granted during pendency of the suit because the suit itself was nonest. On the contrary on behalf of the respondents, it was pointed that the grant of permission is an administrative function and consequently it could be granted during pendency of the suit particularly when it is to be taken that suit is instituted when permission was granted.

The question that arises for consideration is as to whether when the suit by itself is not maintainable and is filed without permission of the Court, whether grant of such a permission during pendency will get over the difficulty that suit was not maintainable?

in the case of Gopal Dei and Anr. v. Kanno Dei and Ors. ILR 1903 Ori162 it was held that consent required in a suit relating to public property is a condition precedent to the institution of the suit. If no valid consent has been obtained, the mistake cannot be rectified unless by means of withdrawl of suit and by institution of fresh suit. Of course this was a decision before coming into being Section 92 of the CPC 1998. The main purpose of Section 92 of the CPC was explained by the Supreme Court in the case of Chairman Madappa Vs. M.N. Mahanthadevaru and Others, . It was held that the purpose is to give protection to public trusts of a charitable and religious nature by suits being filed against them. The Supreme Court explained:-

"The main purpose of S.92(l) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate-General, or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. The object clearly is that before the Advocate-General files a suit or gives his consent for filing a suit under S.92, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court. The reliefs to be sought in a suit under S.92(l) are indicated in that section and include removal of any trustee, appointment of a new trustee, vesting of any property in a trustee, directing a removed trustee or person who has ceased to be a trustee to deliver possession of trust property in his possession to the person entitled to the possession of such property, directing accounts and enquiries, declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust, authorisation of the whole or any part of the trust-property to be let, sold, mortgaged or exchanged, or settlement of a scheme. The nature of these reliefs will show that a suit u/s 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs".

Subsequently, in the case of R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, , the Supreme Court again reiterated that leave of the Court is a condition precedent for institution of a suit against a public trust. In paragraph 17 it was held :-

"A plain reading of Section 92 of the Code indicates that leave of the Court is a pre-condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; if such a suit is instituted without leave, it would not be maintainable at all."

Even the Madras High Court in the decision rendered in the case of N. Anandan Vs. Ayyanna Gounder and others, further held in similar terms that it is necessary to have leave of the Court before filing a suit. It is a condition precedent in this regard. Without such a permission of the Court, the suit was not maintainable. One cannot inject life into still born suit. Once permission had to be obtained before filing the suit, in that event there was no escape but to conclude that once permission has been granted, it would only permit the respondents to file a fresh suit, if need be on basis of the said permission rather than continuing with the old one. It is true that Orissa High Court in the case of Kintali China Jagandham and others (supra) had held that once permission has been granted, in that event, even if it is granted during pendency of the suit, the suit be taken to have been filed from the date the permission is granted. It was held :-

"I, therefore, hold that leave under S.92 is a mandatory condition precedent. The proper procedure is for the plaintiff-petitioners to file an application for leave and to append thereto a copy of the draft plaint of the suit proposed to be filed by them in order to enable the court to grant leave, since leave is to be strictly construed. The suit instituted should be substantially in accordance with the leave granted. Since grant of leave is condition precedent, there cannot be validly instituted suit prior to the grant of leave. Generally, a plaint seeking relief or reliefs coming within the purview of S.92 without grant of leave should be refused. But, where a suit has been registered or interim orders have been passed prior to the grant of leave, the same shall be held to be incompetent, invalid and nonest. Where leave is granted in a pending suit, the plaintiff may either ask for return of the plaint for representation of the same in conformity with the leave granted, or may ask the court to treat the plaint as instituted on and from the date leave is granted, if the plaint is substantially in conformity with the leave."

With respect one finds difficult to subscribe the view that once permission is granted during pendency of the suit, then suit be taken to have registered from the date of the permission. But it appears that what prompted the Orissa High Court in taking such a view was that interim order was passed prior to grant to leave. The Court was very much concerned that the same would become incompetent and invalid. It is not so in the present case. The permission had been obtained during pendency of the suit and on the basis of the said permission, the respondents if so advised can only bring a fresh suit. They cannot continue with the suit which was not maintainable without permission. The provisions of sub-sections (1) and (2) of Section 92 C.P.C. are mandatory.

As a result of the reasons given above, the revision petition is allowed and the impugned order is set aside only to the extent that the suit will not be maintainable. The plaint should be returned to the respondents. They may file a fresh suit if so advised on basis of the permission that has been granted.