Sadhana Pal v. Jagadish Bhar — 1994 DIGILAW 113 (CAL)

Judgment 1. THIS appeal is against the judgment and order passed by a learned Judge of this Court dismissing the application taken out by the appellant for an order that the plaint filed in the Suit No. 679 of 1989 be rejected and taken off the file, in the alternative the suit be dismissed and all proceeding be stayed. 2. THE suit was filed after obtaining leave under clause 12 of the Letters patent for various reliefs including removal of the trustees and for appointment of trustees and for appointment of trustees in place and stead of the defendants for framing of a scheme for proper management and administration of the trust and order for accounts. The plaintiffs are two of the trustees of "bhabani Charan Bhar charitable Trust". The defendants are also the Trustees of the said trust. By an Indenture dated 4th March, 1972 the settlor one Sudhanshu Mohan bhar created the said trust appointing the plaintiff no. 1. defendant nos. 1 and 2 and one Girija Mohan Sanyal as trustees of the said trust. The trust was created with the intent that the rents, issues and profits of hereditaments shall be applied for public charitable purposes, namely, religious purposes, educational purposes, medical purposes, social purposes, relief of the distressed middle class families, relief of poor and destitute, and relief in emergencies to the extent indicated in the trust deed. 3. THE plaintiffs sued the appellant-defendants, inter alia, on the allegations that the defendants failed and neglected to perform their obligations as trustees causing enomous jeopardy in the matter of administration and management of the said trust property, the defendants were trying to make secret profits from the trust property, mismanaging the trust property to the utter detriment of the interest of the said trust, the defendants were not maintaining proper accounts, and the defendants and each of them were guilty of breach of trust. 4. THE appellants in support of their application contended before the trial court that the instant suit is not maintainable as no leave had been obtained under Section 92 of the Code of Civil Procedure before instituting the suit. The suit as such is liable to be dismissed or rejected. The learned trial Judge made no order on the said application of the appellants presumably rejecting the said contention of the appellants. The suit as such is liable to be dismissed or rejected. The learned trial Judge made no order on the said application of the appellants presumably rejecting the said contention of the appellants. The learned counsel for the appellants has submitted that the said trust is admittedly a trust created for public purposes of a charitable or religious nature, and two or more persons having interest in the trust have instituted the instant suit for reliefs mentioned in Section 92 of the Code of civil Procedure without, however, obtaining leave of Court as required under Section 92 of the Code. As such the suit is liable to be dismissed and all interlocutory proceedings should remain stayed. The learned counsel submits that such leave of Court is a mandatory requirement under Section 92 of the Code and the leave is condition precedent to the institution of this suit. 5. THE learned counsel for the appellant has referred to several decisions of High Courts and Supreme Court in support of his aforesaid contention. The first case cited by the learned counsel is the decision of kerala High Court reported in AIR 1983 Kerala 5 (P. V. Mathew vs. R. V. Thomas. It is, inter alia, held by the Kerala High Court that on the terms of section 92 subsection 1 of the Code of Civil Procedure the leave is to precede the institution of the suit as the relevant words are "two or more persons having interest in the trust and having obtained the leave of court may institute a suit". It is further observed that prior to the grant of leave there could not be any valid suit with the further consequence that the court cannot pass interim orders in "the suit" before granting the leave. 6. THE next decision referred to on behalf of the appellant is the decision of Orissa High court reported in AIR 1988 Orissa 100 (Kintali China gaganadham vs. K. Laxmi Naidu. This is also a decision in the context of section 92 of the Code of Civil Procedure. The Orissa High Court is of opinion that the institution of the suit prior to the grant of leave is without jurisdiction and is non- est. This is also a decision in the context of section 92 of the Code of Civil Procedure. The Orissa High Court is of opinion that the institution of the suit prior to the grant of leave is without jurisdiction and is non- est. The Orissa High Court has, therefore, held that leave under Section 92 is a mandatory condition precedent and since grant of leave is condition precedent, there cannot be validity instituted suit prior to the grant of leave. In this case the Orissa High Court has also observed that a suit under Section 92 is a suit of special nature which presupposes the existence of a public trust of a religious or charitable chapter. The necessity for obtaining the leave of the Court has been imposed with a view to preventing an indefinite number of reckless and harassing suits being brought against the trustees by different persons interested in the trust. The real test for applicability of this section is to see whether the suit is fundamentally on behalf of the public for vindication of a public right. The learned counsel for the appellant has also referred to a decision of this court in AIR 1917 Calcutta 678 (Girija Prosunno Roy vs. Becharam patra) and also a decision of the Supreme Court in AIR 1969 SC 884 (Sugra bibi vs. Hazi Kummu Mia) to submit that a suit relating to a public trust cannot be brought except with the consent of the Advocate General and such suit in absence of such consent, now leave of court, is not maintainable. Prior to the amendment of the Code of Civil Procedure in 1976 consent of Advocate General instead of leave of court was the requirement. This is the only contention as discussed above raised on behalf of the appellant in this appeal. 7. THE learned counsel for the respondent has submitted that this court need not go into the question as to whether the present suit is maintainable or not in absence of leave since such question will only be relevant if the present suit comes within the purview of Section 92 of the Code of Civil procedure. 7. THE learned counsel for the respondent has submitted that this court need not go into the question as to whether the present suit is maintainable or not in absence of leave since such question will only be relevant if the present suit comes within the purview of Section 92 of the Code of Civil procedure. The learned counsel for the respondent submits that the present suit has been instituted by one set of trustees against other set of trustees for reliefs including removal of the defendant trustees, appointment of new trustees in place and stead of new trustees, and order for accounts. The learned counsel submits that this is not a suit for vindication of the rights of the public in charitable trust nor a representative suit brought for the benefit of the public to enforce a public right in respect of a public trust of charitable or religious nature. The learned counsel submits that it is true that the instant suit is in respect of an express trust created for public purposes of a charitable or religious nature, but it is not a suit brought by any two persons for vindication of the rights of the public nor for the benefit it of the public to enforce a public right as contemplated by Section 92 of the Code of Civil Procedure. 8. THE learned counsel for respondent has first referred to a Full Bench decision of the Madras High Count reported in AIR 1922 Madras 17 (Apanna Paricha vs. Narasingha Paricha. It is the view of the full bench that the correct principle is that Section 92 governs suit for vindication of the rights of the public in public charitable trusts and has no application to suits for vindication of the rights of management of hereditary trustees or to dispute between such trustees inter se. The next case relied on by the learned counsel for the respondent is another Madras Case reported in AIR 1938 Madras 92. The View of the Full bench in earlier decision in Appanna's case that a suit by a trustee of a public, charitable or religious trust against a co-trustee for accounts does not fall within Section 92, Civil Procedure Code and may be brought without the sanction of the Advocate General has been reiterated in this later decision. The View of the Full bench in earlier decision in Appanna's case that a suit by a trustee of a public, charitable or religious trust against a co-trustee for accounts does not fall within Section 92, Civil Procedure Code and may be brought without the sanction of the Advocate General has been reiterated in this later decision. Varadachariar, J. concurring with the Chief Justice in this case has observed that sub-section (2) of Section 92, though expressed in general terms, must be read along with sub-section (1) and it follows on such reading that it is not every suit claiming any of those reliefs specified in sub-section (1) that should be brought with the consent of the Advocate-General, but those suits only which besides claiming any of those reliefs are brought by individuals as representatives of the general public. The learned counsel for the respondent has also referred to a decision of this court in 44 Calcutta Weekly Notes 327 (Indu Bhusan Sen Vs. Kiron chandra Sen. Their Lordships in this case (Rau and B. K. Mukherjee JJ.) have observed that Section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general public in order to secure the proper administration of a public trust. The Bench referring to Appanna's case AIR 1922 Madras 1. 7 (Supra) and another earlier decision of this Court in 10 Calcutta Weekly Notes 581 (Badree Das vs. Chooni Lal) came to this conclusion that a suit brought by trustees on their on behalf, not being a representative suit, was outside the scope of section 92 of the Code of Civil Procedure. 9. IN view of the aforesaid authorities we have no hesitation to accept the contention of the learned counsel for respondent that the present suit is not and cannot be within the purview of Section 92 of the Code of Civil procedure. It appears to us on a perusal of Section 92 that in order to apply section 92 following conditions must be satisfied. It appears to us on a perusal of Section 92 that in order to apply section 92 following conditions must be satisfied. (a) There is a trust created for public purposes of a charitable or various nature: (b) There is a breach alleged of such trust, or the direction of the court is necessary ion the administration of such trust: (c) The suit must be a representative one on behalf of the public and is not by individuals for their own interest and (d) the relief claimed in the suit is the one or other reliefs mentioned in the section. 10. THE real test for the applicability of section 92 of the Code is to see whether the suit is fundamentally on behalf of the public for vindication of a public right. This test has been widely acknowledged in all the decisions discussed above. The Supreme Court in Sugra Bibi's case, AIR 1969 SC 884 quoted with approval the observation of Woodroffe J. in Badreedas v. Chooneylal 10 Calcutta Weekly Notes 581 "that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringment of their own individual right, the suit is not within or need not be brought under the section". The present suit is instituted by two trustees of a public trust against the other co trustees for accounts and other reliefs, some of which are specified in Section 92, and this suit does not come within Section 92 of the Code of Civil Procedure, as held by the Full Bench of Madras High court in AIR 1922 Madras 17 and the interpretation of Section 92 by the full Bench has been accepted by the Supreme Court in Sugra Bibi's case (supra. 11. THE learned counsel for the appellants argues that in the instant case the plaintiffs, though trustees of a public trust, are members of the public and come within the expression "two or more persons having an interest in the trust" as occurs in Section 92 of the Code. We are unable to accept this argument of the learned counsel for the appellants. We are unable to accept this argument of the learned counsel for the appellants. It will appear from the plaint that the suit has been filed on the allegations, inter alia, that the defendants (the appellants) failed and neglected to perform their obligations as trustees, they are negligent in the management of the trust property, negligent in maintaining accounts, the first defendant was using two rooms out of the three rooms under trust office unlawfully and to the detriment of the interest of the trust. We fail to see how these allegations amongst others as referred to in the plaint could be said to be for vindication of the rights of the public or how the plaintiffs by making these allegations seek to enforce a public right for the benefit of the public. This, in our opinion, is purely a suit by a few trustees against the other trustees seeking enforcement of their respective rights and obligations under the trust. 12. IN the premises, we hold that the present suit is outside the scope of section 92 of the Code of Civil Procedure, and no leave is required to be obtained under section 92 for institution of the suit. As stated above, the only point taken in this appeal is that the suit is not maintainable in absence of leave required to be obtained under section 92. We have not addressed ourselves to the other grounds taken in the Memorandum of appeal, namely, that the learned Judge should have allowed other prayers. The learned counsel for the respondent has taken a preliminary objection that this appeal is not maintainable. He submits that the order under appeal is not appealable under Order XLIII of the Code of Civil procedure nor is a 'judgment' within the, meaning of clause 15 of the letters Patent, as there is no final adjudication of any issue in controversy. The learned counsel for appellants submits that order under appeal is a 'judgment within the meaning of clause 15 of the Letters Patent, since the learned trial Judge has by the said order rejected the appellants' objection as to the maintainability of the suit on the ground of jurisdiction. The appellants rely on a decision in Babulal Khimji's case in AIR 1981 SC 1786 . The appellants rely on a decision in Babulal Khimji's case in AIR 1981 SC 1786 . The Supreme Court in paragraph 113 of the report has observed that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. There may be a case where the trial judge passed an order by deciding a preliminary objection raised by defendant relating to the maintainability of the suit against the defendant. The suit is not terminated and has to be tried on merits but the order rejecting the objection adversely affects the right of the defendant who, if his objection is sustained, is entitled to get the suit dismissed. Therefore, such an order must be construed to be a judgment so as to be appealable. Relying on this observation of the Supreme Court we hold that this appeal is maintainable as the order under appeal is a judgment under clause 15 of the Letters Patent. 13. BUT on merits as discussed above, we do not see any substance in the appeal. We hold that the suit was maintainable, and no leave of court was necessary to institute this suit. 14. IN the result, the appeal fails and is hereby dismissed. There will be no order as to costs. Interim order, if any, is vacated. The parties will act on the signed copy of the minutes of the operative portion of this judgment and order upon usual undertaking. Appeal dismissed.