JUDGMENT V.G. Sabhahit, J.--This appeal by the Plaintiffs in Miscellaneous No. 853 of 1994 is directed against the order dated 22.3.1997 passed by the Principal City Civil Judge, Bangalore rejecting the application filed seeking leave to file suit under Section 92 of Code of Civil Procedure. 2. The facts of the case in brief leading up to this appeal are as follows: The parties would be referred to with reference to their rank before the Trial Court. The Plaintiffs filed the suit on the file of the Principal City Civil Judge against the Defendants for the following reliefs; a) Removing the Trustees of the first Defendant namely the Defendants and any other trustees who may be put forth by them during the trial of this suit; b) Appoint new trustees vesting schedule property in such trustees; c) Direct the Defendants to deliver possession of all the trust property in their possession to the trustees so appointed by this Hon'ble Court and direct them to render accounts; and d) Hold an enquiry into the conduct of the Defendants as trustees and recover the monies mis appropriated by them and take action for the breach of trust in accordance with Indian Penal Code and commit them to imprisonment according to Indian Penal Code; e) Settle a scheme for the first Defendant trust; and f) Grant such other reliefs, as the nature of the case may require, and also award cost of this proceedings and direct such other reliefs, suitable action against the Defendants and others whoever is responsible and pass such further other orders, as this Hon'ble Court may deem fit, in the interest of justice and equity. It is averred in the plaint that the first Defendant is a public charitable trust created under registered trust deed of late Smt. Susheelamma with the object of converting the schedule property into a Maternity Home and to do other charitable services. It is a public charitable trust. The entire public in general, irrespective of religion, caste etc. are the beneficiaries. It is further averred that the benefit is not confined upon the person belonging to a particular caste. It is a public charitable trust. The entire public in general, irrespective of religion, caste etc. are the beneficiaries. It is further averred that the benefit is not confined upon the person belonging to a particular caste. It is further averred that under registered trust deed dated 19.6.1958 a trust was created by Smt. Susheelamma appointing trustees for the execution of the objects of the Trust and she assumed charge as the Managing Trustee under the said registered trust deed and that since there is mis appropriation of the properties of the trust and the trustees are not acting in consonance with the object of the trust the suit is filed for the above reliefs. Along with the suit an application was filed seeking leave to file a suit under Section 92 of the Code of Civil Procedure. 3. The said application was resisted by the Defendants contending that the alleged trust deed dated 19.6.1958 was in the nature of a Will and the same was modified by deed dated 22.12.1977 and all the properties mentioned in the trust deed have been alienated by the person founding the trust and wherefore the suit itself is not maintainable and wherefore the applicant is not entitled to leave to file the suit. 4. The learned Principal City Civil Judge by his order dated 22.3.1997 upheld the contentions of the Defendants and held that the suit itself is not maintainable as the properties which are the subject matter of the trust under deed dated 19.6.1958 have been alienated by Smt. Susheelamma and further held that the document is in the nature of a Will and does not constitute a public trust and wherefore when the suit itself is not maintainable, leave to prefer the suit cannot be granted and accordingly dismissed the application and consequently the suit. Being aggrieved by the said order the Plaintiffs have preferred this appeal. 5. During the pendency of this appeal Respondent-1A died. After the death of Respondent-1A his successor has been impleaded and one K.A. Ramesh Kumar, Joint Secretary is impleaded as Respondent No. 3 to the appeal. 6. I have heard the learned Counsel appearing for the Appellants and the learned Counsel appearing for the Respondents. 7. Having regard to the contentions urged the points that arise for determination in this appeal are: 1. 6. I have heard the learned Counsel appearing for the Appellants and the learned Counsel appearing for the Respondents. 7. Having regard to the contentions urged the points that arise for determination in this appeal are: 1. Whether the learned Principal City Civil Judge was justified in holding that the suit itself is not maintainable and in dismissing the miscellaneous application seeking leave to prefer the suit under Section 92 Code of Civil Procedure and consequently the suit? 2. Whether the impugned order calls for interference in this appeal? 3. What order? and I answer the above points for determination as follows: 1. In the negative; 2. In the affirmative; 3. As per the final order for the following: REASONS 8. The scope of enquiry while granting leave under Section 92(1) of the Code of Civil Procedure is limited and it has been laid down by the Hon'ble Supreme Court in Charan Singh and Another Vs. Darshan Singh and Others, AIR 1975 SC 371 as follows: It is well settled that the maintainability of the suit under Section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. 9. In the case of Harendra Nath Bhattacharya and Others Vs. Kaliram Das (Dead) by his Heirs and Lrs. and Others, AIR 1972 SC 246 Hon'ble Supreme Court has laid down that a suit under Section 92 is of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section. Only then the suit has to be filed in conformity with the provisions of Section 92. 10. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section. Only then the suit has to be filed in conformity with the provisions of Section 92. 10. In view of the above principles laid down by the Hon'ble Supreme Court it is clear that the scope of enquiry while granting leave to prefer the suit is limited to the question as to whether the relief that is sought for in the suit falls within the ambit of Section 92 of the Code of Civil Procedure and the same has to be decided with reference to the averment made in the plaint and question of considering as to whether there was a valid creation of trust or as to whether the registered trust deed relied upon by the Plaintiffs was in the nature of a Will or as to whether the suit itself is not maintainable on the ground that the properties mentioned in the trust deed have already been disposed of relying upon the documents produced by the Defendants at the stage of granting leave to prefer the suit does not arise. It is clear from the perusal of the order passed by the learned Principal City Civil Judge that the learned Judge has proceeded on the basis that the registered document dated 19.6.1958 which is registered as trust deed as averred in the plaint is not in the nature of a trust deed, but it is in the nature of a Will and wherefore the properties did not vest with the trustees during the life time of the founder of the trust and since the properties have already been disposed of by the founder of the trust during her life time, the suit itself is not maintainable. This finding is arrived at by the learned Principal City Civil Judge on the basis of the objections filed by the Defendants and also the contents of the Written Statement. This finding is arrived at by the learned Principal City Civil Judge on the basis of the objections filed by the Defendants and also the contents of the Written Statement. In view of the above cited decisions the said contention taken in the Written Statement and objections could not be considered at this stage to find out as to whether leave to prefer a suit should be granted and the said question as to whether the registered document dated 19.6.1958 which is described as a trust deed in the plaint is a trust deed or a Will and as to whether the properties vested in the trustees and as to whether the founder of the trust has disposed of the properties during her life time and the schedule property is not in existence and not in possession of the trust and as to whether the suit therefore is maintainable could not have been considered at this stage. 11. The learned Counsel appearing for Respondent No. 1(b) has relied upon the decision of this Court in M.S. Malliah Vs. Gowramma 1991 (4) Kar LJ 323 which has also been relied upon by the Trial Court. It is clear from the said decision of this Court that in the said case the Court was considering the question about the existence of the trust or otherwise after the suit had been decided on merits after framing issues and the Court was not considering the question as to whether leave should be granted to prefer the suit and wherefore the said decision would not be helpful to Respondent No. 1(b) at this stage. Accordingly, I hold that the impugned order passed by the learned Principal City Civil Judge cannot at all be sustained and the same is liable to be set aside and remitted to the Trial Court with a direction to dispose of the same in the light of the principles laid down by the Hon'ble Supreme Court in the above cited cases and thereafter dispose of the application in accordance with law. Accordingly, I pass the following order: The appeal is allowed. The order dated 22.3.1997 dismissing Miscellaneous No. 853 of 1994 and consequently the suit is set aside. Accordingly, I pass the following order: The appeal is allowed. The order dated 22.3.1997 dismissing Miscellaneous No. 853 of 1994 and consequently the suit is set aside. Miscellaneous No. 853 of 1994 is restored to the file of Principal City Civil Judge, Bangalore with a direction to dispose of the same in the light of the principles laid down by the Hon'ble Supreme Court in the decisions cited in the body of this judgment and in the light of the observations made in the body of this judgment and dispose of the application in accordance with law.