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Judgment
This judgment will govern the above titled Civil First Appeal and revision petition directed against the judgment and decree dated 23rd of
October, 2001 passed by Additional District Judge, Srinagar, in the case titled as Ghulam Rasool Khuroo and others vs. Syed Ghulam Ahmad
Qadiri and others, hereinafter referred to as impugned judgment, whereby and whereunder, the suit came to be dismissed.
It is profitable to give briefly and precisely the flask back of the case which has given birth to the instant appeal.
Management of Mosque and Ziyarat Sharief known as ""DARGAHI GOUSIA"" Aalikadal, situate at Mohalla Rahbaba Sahib, Srinagar, is the
bone of contention in the lis.
Defendant/ respondent No. 1 was managing the affairs of the Ziyarat and Mosque. Plaintiffs/ appellants came to know that respondent/
defendant No. 1 misappropriated the property of the Ziyarat and also sold the landed property of the Ziyarat without any legal justification and
accordingly they brought the said fact to the notice of the Intizamia committee ""Dargahi Gousia'. Respondent No.l was restrained from leading the
prayers and managing the affairs of the Ziyarat. They also requested the revenue authorities to demarcate the entire landed property of the Ziyarat.
Tehsildar Settlement submitted a report to Additional Deputy Commissioner, Srinagar, photostat copy whereof is annexurePA to the plaint.
Landed property known as ""Mandibagh' situated at Rahbab Sahib. Srinagar, falling under survey Nos. 1845.1845/1 is the properly of Ziyarat.
Record disclose that the said landed property was originally belonged to ancestors of respondent No.1 which was either acquired, donated or was
wakf property. After the death of father of defendant/ respondent No. 1, defendants 1 and 2 received the rent of the property.
It is also averred in the plaint that defendant No. 1 has executed a sale deed in respect of the ""Mandibagh property' thereby deprived the
Ziyarat of the said properties and misused his position as 'Sajada Nisheen'. The said sale deed is also challenged in the suit and plaintiffs have
prayed decree of declaration and injunction.
Defendants filed written statement and resisted the suit on the grounds taken in the written statement and following issues came to be framed by
the trial court:
Issue No.l) Whether the suit is not maintainable u/s 92 of CPC? OPD 1 to 5.
Issue No.2) Whether the suit is legally incompetent under Order 1 Rule 8 CPC?
OPD 1 to 5.
Issue No. 3) Whether the suit is barred by time? OPD Ito5.
Issue No.4) Whether the plaintiffs have no locus standi or right to institute the suit? OPD 1 to 5.
Issue No.5) Whether the Courts lacks jurisdiction? OPD 1 to 5.
Issue No.6) Whether the Court fee has not been paid and what will be its effect? OPD 1 to 5.
Issue No.7) Whether the verification of plaint is not in accordance with Order 6 Rule 17 CPC? OPD 1 to 5.
Issue No.8) Whether the suit is not maintainable u/s 115 of Evidence Act? OPD 1 to 5.
Issue No.9) Whether the suit is liable to be stayed u/s 10 CPC ? OPD 1 to 5.
Issue No. 10) Whether the plaintiffs constituted Managing Committee and had entrusted as such, the defendant No.1 with the care of the property
of Ziyarat? OPP
Issue No.11) Whether the defendant No.1 had misconducted himself as Mutawali/ Sajada Nashin of the Ziayarat and by such misconduct sold the
Wakf property known as Mandi Bagh to the Vendees? OPP
Issue No.l2) Whether the plaintiffs/ managing committee took up the issue with the Revenue Deptt. who after enquiry have returned the finding that
the land was the personal property of defendant No.1? OPP
Issue No.13) In case issue No. 12 is proved in affirmative whether the case of plaintiffs is to be dismissed? OPD 1 to 5.
Issue No. 14) Whether the defendants 2 to 5 vendees of Mandi Bagh had raised their respective construction to the notice of plaintiffs since all
these years and as such the plaintiffs have admitted the status of defendant No. 1 and defendants 2 to 5 as owners of the land? OPD 1 to 5. Issue
No.15) Whether the defendant No.l is entitled as Mutawali/ Sajadanasheen to perform and discharge duties assigned to him without any let or
hindrance of plaintiffs? OPD1 Issue No. 16) Whether the intention behind filing of the present suit is aimed at to reopen the controversy interse
defendant No.l and 6 at the behest of defendant No.6 so as to disentitle the defendant No. 1 from performing the duties as Mutawali and
Sajadanasheen? OPD1. 17. Relief.
Issues 1, 2 and 6 were treated as preliminary issues.
After hearing learned counsel for parties, the learned Additional District Judge. Srinagar decided all the preliminary issues in favour of the
defendants against the plaintiffs' appellants.
Learned counsel for the appellant argued that Section 92 of the Code of Civil Procedure, hereinafter for short CPC, is not applicable for the
reasons that suit property is not a trust. Trial court has fallen in error. Further argued that all the persons who have interest in the lis filed the suit.
Thus, there was no need to file the suit in representative capacity and necessary permission in terms of Order 1 Rule 8 CPC was not required.
Requisite court fee has been paid and plaintiffs had not to pay court fee for an amount ofRs.56,000/
Learned counsel for respondent No.l argued that in order to determine whether Section 92 CPC is applicable and whether requisite permission
was to be sought can be determined by taking into consideration the sum and substance of the plaint. Respondents have pleaded that public have
the interest in the suit property i.e. Ziyarat and Mosque, thus it is a public trust and the mandate of Section 92 CPC was to be followed. Further
argued that plaintiffs numbering 126 have filed the suit. They ought to have filed the suit in representative capacity because not only the said
persons but the public at large has the interest in the lis as per the averments contained in the plaint. Further argued that court fees was to be paid
at an amount of Rs.56000/
It is useful to reproduce Section 92 of the CPC herein, which reads as under:
Public Charities.(I) 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 contentious or not, in the
principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by (the Government] within the local limits of whose
jurisdiction the whole or any part of the subjectmatter of the trust is situated, to obtain a decree.......................
This provision of law mandates that when it is alleged that breach of any express or constructive trust created for public purposes of a
charitable or religious nature, the Advocate General or two or more persons having interest in the trust can file suit after obtaining leave of the
Court or where the direction of the Court is necessary for administration of any such trust the Advocate General or two or more persons having
interest in the trust can file suit after obtaining leave.
Applying the test to the instant case, whether requirement of Section 92 CPC was to be followed? In order to determine this issue it is useful to
reproduce para7 and 10 of the plaint herein, which read as under:
That the Revenue record annexed and the report submitted by the Revenue authorities demonstrate that the revenue entries have been altered
by the interested parties in league with some revenue authorities this fact also makes the sale deed liable lobe cancelled. And the property of the
Ziyarat preserved in the interest of the general public and their sentiments. The defendant no. 1 has misconducted himself as Sajadanisheen and
misused his power and the post therefore does not entitle hinisel Fto continue to be the Sajada Nisheen. He has conducted lu'mself in violation to
the objects of the Waqaf and therefore the public at large have rightly thrown him out of the said post in order to implement the objects of the
Waqaf and preserve the property and sanctity of the Ziyarat. As a timely measure for implementing the objects of Waqaf and preserve the Waqaf
property and the sanctity of the Ziyarat the public have appointed a person namely Syed Muhammad Amin Qadri Grandson of Syed Muhammad
Abdullah Qadiri, son of the brother of the defendant no.l as care taker Sajadanisheen of the Waqaf property and to perform the functions of the
Ziyarat till the matter is finally decided. Copy of the order is appended herewith and is marked as annexure PB.
That the def. No. 1 in order to mislead the general public manipulated a rent deed with the tenant of the Ziyarat regarding the Mandibagh and
the certified copy of the said rent deed is appended herewith as Ann. PFl. The tenant in the said rent deed is already tenant of the said land on
behalf of the Ziyarat at the relevant point of time and this fact is demonstrated by the ledger maintained by Ziyarat and a photostat copy of the
same is appended herewith as Annexure PF2. Therefore, the def. No. 1 has manipulated the said document only to make any attempt to comma
flog that the Mandi bagh is his own property and not that of the Ziyarat. At this point of time; the father of the def. No. 1 was alive, therefore the
def. No. 1 could not alter the ledgers of the Ziyarat because the same were under his custody.
While going through these pleadings, it is crystal clear that plaintiffs have specifically pleaded that defendant No. 1 has misconducted as
Sajadanisheen' and misused his powers and ihcrebv has conducted himself in violation of the object of the Waqf and public at large have
dislodged defendant No.l from the post of Sajarlanishecn in order to achieve the object of the waqf and preserve the property and sanctity of
Ziyarat. Further they have stated that public nave appointed one Syed Mohammad Amin Qadiri as caretaker/ 'Sajadanisheen' of the waqf
properly. Further, it is averred that defendant/ respondent No. 1 in order to mislead the general public manipulated rent deed.
While going through these pleadings, it appears that plaintiffs have specifically pleaded that the suit property is a property of the trust and public
in general have right interest and faith in Ziyarat Sharief and Mosque.
In the given circumstances, I am of the considered view that mandate of Section 92 CPC was to be followed. Thus trial court has rightly held
that the suit is not maintainable.
This Court in a case titled A. K. Tak Vs. NoorudDinBhat, reported in SLJ 1985 355, has laid down what are the considerations which are to
be taken into consideration while holding whether suit falls within the ambit of Section 92 CPC. It is profitable to reproduce para4 of the said
judgment herein, which reads as under:
It is true that permission to file the suit has been granted at the back of the defendant. But there is no provision in the Code of Civil Procedure
or in any other law which requires court granting permission to file the suit should afford opportunity to the proposed defendant to file objections
for grant of such permission. The suit itself is to be instituted only after the permission is obtained. The suit will be considered duly filed if the
permission is granted. So at that stage court has only to look into the plaintiff and nature of its allegations and satisfy itself about the correctness of
the facts asserted in the plaint. Civil Procedure Code does not provide any form for grant of permission to institute the suit but n appears that the
court has to be satisfied that the suit falls within the mischief of Section 92 C.P.C. and nature of allegations are such that permission sought should
be given. So at that stage application of mind on the part of the court is need in respect of following matters:
a) that prima facie allegations set up in the plaint require investigation:
b) that allegations are such that they require investigation and trial;
c) that suit fall otherwise u/s 92 Civil Procedure Code;
d) that the plaintiffs in such a suit arc interested persons who can file the suit u/s 92 C.P.C.
In the present case the trial court has not gone into these details but that would not make its order of granting permission to file the suit invalid.
Ordinarily the trial court should have considered the application and recorded its reasons but it has not done so. It necessarily would not follow
that the trial court would not have applied its mind when the suit was brought before it. The trial court has granted permission and it has relied on
the application as also on the affidavit which by necessary implication means that it has been satisfied and then granted permission to the plaintiff to
institute the suit.
Apex Court in case titled as R. M. Narayana Chcttiar v. N. Lakshmanan Chettiar, reported in 1991 SC 221. has held that when Section 92
CPC can be pressed into service. It is profitable to reproduce para17 of the said judgment herein, which reads as under:
A plain reading of S. 92 of the Code indicates that leave of the court is a precondition or a condition precedent for the institution of a suit
against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without
leave, it would not be maintainable at all. Having in mind, the objectives underlying S.92 and the language thereof, it appears to use that, as a rule
of caution, the court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting
leave under S.92 to institute a suit. The defendants could bring to the notice of the court for instance that the allegations made in the plaint are
frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave under S.92 are doing so
merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons. The desirability of such
notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under S.92 can be
granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the
provisions of S.92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even
though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of
caution, Court should normally give notice to the defendants before granting leave under the said section to institute a suit, the Court is not bound
to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in
law or nonmaintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants
because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
Madras High Court in case titled N. Anandan v. Ayyanna Gounder, reported in AIR 1994 Madras 43, has held that suit under Section 92
CPC is not similar to a representative suit under Order 1 Rule 8 CPC in all respects. Leave of court is condition precedent for instituting suit under
Section 92 CPC, whereas permission to file suit in representative capacity can be granted even after institution of the suit.
Apex Court in case titled as R. VenugopalaNaidu v. Venkatarayulu Naidu Charities, reported in AIR 1990 SC 444 held that suit under
Section 92 CPC is a suit of special nature for the protection of public rights and the suit is fundamentally on behalf of the entire body who are
interested in the trust and is for the vindication of public rights. It is profitable to reproduce paras 9, 10 and 12 of the said judgment herein, which
read as under:
The legal position which emerges is that a suit under S.92 of the Code is a suit of a special nature for the protection of Public rights in the Public
Trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of
public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the
purposes of filing a suit under S.92 of the Code and the suittitle in that event would show only their names as plaintiffs. Can we say that the persons
whose names are on the suittitle are the only parties to the suit? The answering would be in the negative. The named plaintiffs being the
representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties
to the suit. A suit under S.92 of the Code is thus a representative suit and as such binds not only the parties named in the suittitle but all those who
are interested in the trust. It is for that reason that explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of
interested persons from reagitating the matters directly and substantially in issue in an earlier suit under S.92 of the Code. 10. Mr. G. Ramaswamy,
learned counsel appearing for the respondent trust has argued that only the two persons who filed the original suit can be considered as ""parties"" in
terms of clause 14 of the schemedecree and according to him since the appellants were not the plaintiffs they have no locus stand to file any
application under clauses 13 and 14 of the schemedecree. According to the learned counsel Section 92 of the Code brings out a dichotomy in the
sense that there are ""parties to the suit"" and ""persons interested in the trust"". According to him persons interested in the trust cannot be considered
parties to the suit although the judgment/ decree in the suit is binding on them. He has also argued that a suit under Section 92 of Civil Procedure
Code is different from a suit filed under Order 1 Rule 8 of Civil Procedure Code. We do not agree with the learned counsel. A suit whether under
Section 92 of Civil P.C. or under 0.1 R.8 of Civil P.C. is by the representatives of large number of persons who have a common interest. The very
nature of a representative suit makes all those who have common interest in the suit as parties. We, therefore, conclude that all persons who are
interests in Venkatarayulu Naidu Charities which is admittedly a public trust are parties to the original suit and as such can exercise their rights
under clauses 13 and 14 of scheme decree dated September 9, 1910. 12. In view of our findings above the subordinate court and the High Court
were in error in holding that the appellants had no locus standi to file the application for setting aside the order permitting the sale of the properties.
We, therefore, allow the appeal and set aside the order of the subordinate court and that of the High Court.
Applying the test to the instant case, as discussed hereinabove, the plaintiffs have pleaded that public rights and interests are involved in the lis
and it is for the vindication of public rights. Thus leave was to be sought.
In the given circumstances, the trial court has rightly held that the plaintiffs have not sought leave in terms of mandate of Section 92 CPC,
therefore, suit is not maintainable.
Accordingly, finding returned by the trial court is upheld.
In case issue would have been decided in favour of the plaintiff against the defendant, then question which would arise for determination is
whether plaintiff should have sought permission to file the suit in representative capacity.
The argument of learned counsel for plaintiff that suit is not in representative capacity because all the persons having interest in the lis have filed
the suit. Therefore, there was no need to file suit in representative capacity.
I am of the considered view that said argument is devoid of force for the following reasons;
Plaintiffs have specifically pleaded in the plaint that public have right and interest in the lis. Defendant2 has deprived the Ziyarat from the landed
property, therefore, public at large stands deprived from property. Public have removed defendant/ respondent No. 1 from the post of
Sajadanisheen and appointed another person as care taker/'Sajadanisheen'.
Keeping in view the discussion hereinabove, it is crystal clear that not only the plaintiffs/ appellants have interest but all the inhabitants of
Mohalla Rahbab Sahib even their relations and public at large have right and interest in the lis as per the averments contained in the plaint. Thus
plaintiffs suit was to be filed in representative capacity in order to avoid multiplicity of litigation.
Plaintiffs/ appellants have valued the suit for an amount of Rs.56,000/ but have paid deficient court fee. Thus trial court has rightly held that
plaintiffs have paid deficient court fee.
In view of the above discussion, appeal as well as the revision petition merit dismissal, which are accordingly dismissed and impugned judgment
and decree is upheld.
Keeping in view the facts of the case, I deem it proper to allow the receiver to perform the duties for a period of one month in order to enable the
plaintiffs/ appellants to seek an appropriate remedy, if they chooses and advised. After the time frame the receiver shall follow the directions
contained in the impugned judgment.
Any observation made by this Court or by the trial court shall not affect the rights and interests of the parties in any way.
Registry is directed to send down the record along with a copy of this judgment.
Appeal as well as the revision petition are accordingly dismissed.