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2001 DIGILAW 573 (PNJ)

Basheshwar Dass v. Zile Singh

2001-05-22

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This revision petition has been directed against the order dated 1.6.1999 passed by Civil Judge (Junior Division), Karnal who dismissed an application of the defendants for revoking the leave already granted to the plaintiffs by order dated 4.4.1995, to file the suit under Section 92(1) and under Order 1 Rule 8 of the Code of Civil Procedure (for short "Code"). 2. Some facts can be noticed in the following manner :- A civil Suit for declaration under Section 92(1) as well as under Order 1 Rule 8 of the Code was filed by the plaintiff-respondents on 3.4.1995 and on the same date, along with the plaint, an application was also filed by the plaintiffs vide which permission of the court was obtained for filing the suit under Section 92(1) and under Order 1 Rule 8 of the Code. The permission was granted to the plaintiffs on 4.4.1995 itself, by the trial Court and thereafter notice of the suit was issued to the defendants. So much so, defendant No. 1 filed written statement on 22.8.1996 and on 20.3.1997, the defendants rose from the slumber and made an application that the order dated 4.4.1995 be recalled and the permission which was granted to the plaintiffs to file suit in a representative capacity and under Section 92(1) of the Code be revoked. The application was made mainly on the grounds that the permission was not granted in the first instance; secondly, the Civil Judge (Junior Division) had no jurisdiction to try the suit and thirdly, the suit is only triable by the principal court of original jurisdiction i.e. the court of District Judge. Notice of the application was given to the plaintiff- respondents who filed reply and denied and allegations. The trial Court dismissed the application of defendant No. 1 for reasons given in the impugned order dated 1.6.1999. Not satisfied with the said order, the present revision has been filed. 3. I have heard Mr. C.B. Goel, Advocate appearing on behalf of the petitioner, Mr. Ashish Aggarwal, Advocate appearing on behalf of respondents 1 to 16 and Mr. B.S. Bedi appearing on behalf of interveners and with the assistance rendered by them, have gone through the record of the case. Section 92 of the Code lays down as under :- "92. Public charities. C.B. Goel, Advocate appearing on behalf of the petitioner, Mr. Ashish Aggarwal, Advocate appearing on behalf of respondents 1 to 16 and Mr. B.S. Bedi appearing on behalf of interveners and with the assistance rendered by them, have gone through the record of the case. Section 92 of the Code lays down as under :- "92. Public charities. - (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 contentions 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." 4. Remaining portion of the section is not being quoted as it is not necessary for adjudication of the controversy in dispute. A reading of the above provisions would show that when a suit is instituted with regard to public charities, such a suit can be instituted by two or more private persons who have interest in the trust and have obtained leave of the court and further that such a suit can be instituted in the principal court of original jurisdiction. Learned counsel appearing on behalf of the petitioner submitted that such a suit cold not be instituted in the court of Civil Judge (Senior Division) and it has to be instituted in the court of District Judge who could assign the same to any other court of competent jurisdiction. In the present case, the suit has been instituted in the court of Civil Judge (Senior Division) and, therefore, its institution is bad. In the alternative, it was argued by the lawyer that a reading of section 92 of the Code would show that permission under Section 92(1) and under Order 1 Rule 8 of the Code is a condition precedent to institute such a suit. The things which ought to be done in the first instance, must necessarily be done in the same fashion. The things which ought to be done in the first instance, must necessarily be done in the same fashion. In the present case, the suit has been registered in the first instance and thereafter the permission has been granted and therefore, it is bad in law. In support of his contention, learned Counsel has referred to Thakardwara, Patiala and others v. Nagar Singh and others, 1998(3) Civil Court Cases 351 (P&H), wherein it was observed that a suit under Section 92(1) of the Code can only be filed with the permission of the Court and if the permission is not taken, it is not maintainable. It was also observed that it is necessary to have the leave of the court before filing such a suit. If the permission has been obtained during the pendency of the suit and on the basis of the said permission, the respondents if so advised can only bring a fresh suit but they cannot continue with the suit which was not maintainable without permission. 5. On the contrary, learned Counsel for the plaintiff-respondents submitted that along with the suit, an application under Section 92(1) of the Code was filed and permission was also sought under Order 1 Rule 8 of the Code. The trial Court was aware that along with the plaint, two additional prayers have also been made. The court has granted the permission as is evident from the order dated 4.4.1995 and in these circumstances, the application moved by the defendants was without any merit. 6. I have considered the rival contentions of the parties and am of the opinion that this revision must fail. As I have stated earlier, the suit was instituted on 3.4.1995. The Procedure is that moment the suit is instituted in the box of the court, it is taken out and the Reader of the Court of Civil Judge (Senior Division), puts the date of filing of the same and then the suit is presented before Civil Judge (Senior Division) who may then retain the same either on his own file or may mark to any other court of competent jurisdiction. In this case, the suit was entrusted to some other court and was taken up by the trial Court on 4.4.1995. On that date, the lawyer of the plaintiffs was presented and the court passed the following order :- "Suit received by assignment. Office report perused. In this case, the suit was entrusted to some other court and was taken up by the trial Court on 4.4.1995. On that date, the lawyer of the plaintiffs was presented and the court passed the following order :- "Suit received by assignment. Office report perused. It be checked and registered. Notice of the suit and stay application be issued to the defendant No. 1 to 66 or filing of PF and RC etc. for 9.5.1995 and defendant No. 67 general public be summoned through publication in the newspaper Ranjit Patiala Election on filing of necessary expenses etc. Notice of the stay application and for appointment of receiver be also issued to the defendants for the date fixed. Heard on the applications under Order 1 Rule 8 and section 92 CPC. The present suit has been instituted by Zile Singh etc. worshipper and interested persons in the properties of Sita Mai Dera. So, the necessary permission to institute the present suit in the representative capacity under Order 1 Rule 8 CPC as well as Section 92 CPC is hereby granted. However, notice to the other interested persons as mentioned in Annexure be also issued for the date fixed on filing of PF etc. Sd/- S.J.I.C. 4.4.1995." 7. A reading of the above order would show that along with the plaint itself, an application under Section 92(1) and under Order 1 Rule 8 of the Code was filed. The court granted the permission to the plaintiffs to file a suit under Section 92(1) and under Order 1 Rule 8 of the Code. Learned counsel for the petitioner wants the hair splitting which he cannot be allowed to do so. It is the basic principle of law that no body can suffer on account of the fault, if any, on the part of the trial Court. We also know that this type of orders are administrative orders as held by a Division Bench of this Court in Lachhman Dass Udasi and others v. Ranjit Singh and others, 1986(2) P.L.R. 522. It was held by the Bench that no notice is necessary to be issued to the defendants prior to the granting or refusing of the leave under Section 92 of the Code as it is the subjective satisfaction of the Court only and thus the order passed is an order of administrative nature. It was held by the Bench that no notice is necessary to be issued to the defendants prior to the granting or refusing of the leave under Section 92 of the Code as it is the subjective satisfaction of the Court only and thus the order passed is an order of administrative nature. Furthermore, the case cited by the counsel for the petitioner i.e. Thakardwara, Patialas case (supra) is not helpful to us. In that case, the plaint was presented without any application under Order 1 Rule 8 or under Section 92 of the Code. Notice of the suit was given. The defendants took an objection with regard to the maintainability of the suit for want of permission of the court in view of Section 92(1) of the Code. Thereafter the plaintiffs made an application for reappraisal of his fatal mistake. In those circumstances, the High Court held that the prior permission is a condition precedent. In a subsequent decision given by the same Bench in Maharishi Dayanand Education Society and others v. Satyendra Bhadana and others, 1999(1) PLJ 203, it was observed by his Lordship that if the permission is granted during the pendency of the suit, it would save dismissed of the suit and that the permission of the court can be obtained subsequently also. The Bench further held that Section 92 of the Code is sine qua non before institution of the suit. Under Section 92 of the Code, the Legislature used the words "and having obtained leave of the Court may institute a suit", meaning thereby, the necessary permission of the Court is must before any step is taken and without such a permission the suit cannot proceed. In the present case, permission was given by the Court on 4.4.1995 and the summons were issued. It is true that in the first instance, the trial Court ordered for issuance of notices of the suit and the applications for stay and for the appointment of receiver, but in the same breath, the court applied its mind and considered it appropriate to grant permission to the plaintiffs under Order 1 Rule 8 and Section 92 of the Code. In R.M. Narayana Chettiar and another v. N. Lakshmanan Chettiar and others, AIR 1991 SC 221, the Supreme Court was pleased to hold that in a suit under Section 92 of the Code the court is not bound to give notice although as a rule of caution, it should normally give such notice. In the present case, the application for revocation of the order was moved in the year 1997. From 4.4.1995 upto 1997 the defendants did not raise any finger with regard to the validity of the order dated 4.4.1995. In these circumstances, the said order, in my opinion, was a valid order and should not be interfered with. 8. It was then submitted by the counsel for the petitioner that such like a suit could only be instituted in the court of the District Judge who alone has the jurisdiction to try it either himself or at the most, he could transfer the same to any other court of competent jurisdiction. As the present suit had been instituted in the court of Civil Judge (Senior Division), therefore, the trial is bad in law. The argument of the learned Counsel for the petitioner cannot be accepted in view of the judgment of this Court reported as Prithipal Singh v. Magh Singh and others, AIR 1982 Pb. and Hr. 137 in which it was held as follows :- "Suits under Section 92 can be instituted both in the Principal Civil Court of Original Jurisdiction as also 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 situated. Provisions of Section 92 do not envisage that such other courts are to be empowered by a gazette notification. Empowering by a gradation and distribution list of officers in the judicial department which is prepared and published by the State Government is sufficient compliance. When such a list empowers all subordinate Judges to try such suits under Section 92, then in view of Section 15 such suits should be instituted only in the Courts of subordinate Judges." 9. In Punjab and Haryana, the suits are instituted in the court of Senior Subordinate Judge i.e. Civil Judge (Senior Division), on behalf of the District Judge. When such a list empowers all subordinate Judges to try such suits under Section 92, then in view of Section 15 such suits should be instituted only in the Courts of subordinate Judges." 9. In Punjab and Haryana, the suits are instituted in the court of Senior Subordinate Judge i.e. Civil Judge (Senior Division), on behalf of the District Judge. By virtue of the provisions of Section 15 of the Code, every suit shall be instituted in the court of the lowest grade competent to try it. Thus the suit could be instituted in the court of Civil Judge (Senior Division) and he had the jurisdiction to try the same either himself or assign the same to any Civil Judge (Senior Division), Additional Civil Judge (Senior Division) or Civil Judge (Junior Division) having jurisdiction to try the same. In these circumstances. I am of the opinion that this revision is totally devoid of any merit and the application moved by the defendants before the trial Court has been rightly dismissed. The revision petition is, therefore, dismissed with no order as to costs. Anything said herein shall not be construed as an expression of opinion on the merits of the suit. The parties through their counsel are directed to appear before the trial Court on 14.6.2001. Revision dismissed.