JUDGMENT Hon’ble Krishna Murari, J.—By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 3.4.2008 passed by the District Judge, Ghaziabad in proceedings under Section 92 of the Code of Civil Procedure (for short ‘the Code’) allowing the applications moved by respondents 9 and 10, under Order I, Rule 10 of the Code for their impleadment, under Section 151 seeking injunction and Order XXVI, Rule 9 for appointment of a Commissioner. 2. Facts giving rise to dispute are as under : Sri Vir Digambar Jain Dharamshala and Sri Mahavir Jain Dharmarth Aushadhalai is stated to be a private trust created through a trust deed executed by one late Lala Nanhe Mal Jain. Petitioner No. 2 claims to be the managing trustee of the said Trust. An application under Section 92 of the Code was moved by opposite party Nos. 1 to 4 seeking permission to file a suit on the allegations that it was a public trust with a prayer to remove the trustee and to frame a scheme of administration for managing the affairs of the trust and for giving custody of the trust property to the Managing Committee and to submit the accounts. The proceeding was registered as Misc. case No. 48 of 2004 and was contested by the petitioners. During the pendency of the proceedings respondents 9 and 10 filed writ petition No. 9014 of 2008 in the nature of a public interest litigation alleging that the trust was being mismanaged. This Court, finding that proceedings under Section 92 of the Code were pending, disposed of the petition with the liberty to the applicants therein to join in the said proceedings. Thereafter, respondents 9 and 10 moved an application under Order I, Rule 10 of the Code seeking impleadment in Misc. case No. 48 of 2004. An application under Section 151 of the Code for maintaining status quo with respect to the trust property and another application under Order XXVI, Rule 9 of the Code for appointment of a Commissioner to make inspection and submit details of the trust property was also moved. The applications were resisted by the petitioners by filing objections. District Judge vide order dated 3.4.2008 allowed all the three applications. 3. I have heard Sri Rakesh Pande for the petitioners, Sri Anoop Trivedi for respondent Nos. The applications were resisted by the petitioners by filing objections. District Judge vide order dated 3.4.2008 allowed all the three applications. 3. I have heard Sri Rakesh Pande for the petitioners, Sri Anoop Trivedi for respondent Nos. 1 to 4 and Sri Ravi Agarwal for respondents 9 and 10. 4. Counsel appearing for the respondents do not propose to file any counter affidavit and with the consent of learned counsel for the parties, the writ petition is being finally disposed of at this stage. 5. It has been urged by learned counsel for the petitioners that since the application seeking permission to institute the suit is pending till date and permission having not been granted, the suit cannot be said to have been instituted as yet as such the application for impleadment, injunction and issuance of a Commission have been wrongly and illegally allowed inasmuch as the said power can only be exercised by the Court in a pending suit. 6. In reply, it has been submitted that the impleadment application was moved in pursuance to the liberty given by this Court while disposing of the writ petition filed by respondents 9 and 10 and the same has rightly been allowed. It has further been submitted that invoking inherent power under Section 151 of the Code the Court has directed the parties to maintain status quo in respect of the trust property in order to prevent waste and damage of the same during the pendency of the proceedings and the Commissioner has been appointed to submit a report about the details of the trust property so that the injunction order may be effectively made operative on the same. 7. I have considered the rival submission. 8. The question which arises for consideration is whether the Court has jurisdiction to entertain and pass orders on such applications in proceedings under Section 92 of the Code seeking leave of the Court to file suit. 7. I have considered the rival submission. 8. The question which arises for consideration is whether the Court has jurisdiction to entertain and pass orders on such applications in proceedings under Section 92 of the Code seeking leave of the Court to file suit. Section 92(1) relevant for the purposes of the case reads 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 person 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 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; (c) vesting any property in a trustee; [(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchange; (g) setting a scheme; or (h) granting such further or other relief as the nature of the case may require.” 9. From the language of the Section it is clear that leave is a condition precedent to the institution of the suit itself. Thus unless the leave is granted the suit cannot be deemed to have been instituted much less pending. The Hon’ble Apex Court in the case of R.M. Narayana Chettiar and another v. N. Lakshmanan Chettiar and others, AIR 1991 SC 221 , has ruled that in view of the language used in Section 92 of the C.P.C. leave of the Court is a condition precedent for institution of a suit against a public trust for the relief set out in the said Section. 9-A Based on the aforesaid interpretation of Section 92 and the words “where a suit has been instituted” used in Order I, Rule 10 and “Where in any suit it is proved by affidavit or otherwise” used in Order XXXIX of the Code dealing with temporary injunction and interlocutory orders and “Any Court in any suit issue a Commission” used in Order XXVI, Rule 9 providing for the Commission to make local investigation, it has been sought to be urged on behalf of the petitioners that during the pendency of the leave application, there is no suit in existence hence no order for impleadment, temporary injunction or appointment of a Commission could have been passed and the impugned orders are without jurisdiction inasmuch as the powers in respect thereof can be exercised by the Court only in a pending suit. 10. Application under Order I, Rule 10 was moved by respondents 9 and 10 in pursuance to the liberty given by this Court to join in the pending proceedings under Section 92 of the Code. Apart from above, it is undisputed that proceedings under Section 92 of the Code is of representative character on behalf of the public at large. The purpose of Section 92 is to give protection to public trust of charitable or religious character from being subject of harassment by suit being filed against them and as such it provides that suits of such nature can be filed by Advocate-General or two or more persons having an interest with the leave of the Court. While granting the leave the Court does not decide the rights of the parties but merely ascertains whether there is a prima facie case for granting leave to file suit. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. The beneficiaries of the trust which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the cause title in that event would show only their names as plaintiffs but in such a situation the persons whose names are on the cause title are not the only parties to the suit. 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. The very nature of the suit makes all those who have common interest in the suit as parties and binds not only the parties named in the cause title but all those who are interested in the trust. This finds support from the decision of the Hon’ble Apex Court in the case of R. Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others, AIR 1990 SC 444 . The suit under Section 92 of the Code being not like an ordinary suit where there is a list between two parties and an objection could be raised by either of the parties to the suit with regard to impleadment of third party in the proceedings and their names being added in the cause title will make no difference inasmuch as all the interested persons on account of the nature of the proceedings are deemed to be parties to the suit. 11. In view of above, no illegality appears to have been committed by the Court below in allowing the application of respondents 9 and 10 for being impleaded in the proceedings. 12. In so far as the order directing the parties to maintain status quo passed by the Court below is concerned, the arguments have been advanced on behalf of the petitioners in the light of the provision of Order XXXIX of the Code whereas the order has been passed by the Court below on the application moved by respondent No. 9 and 10 invoking the powers conferred on the Court by virtue of Section 151 of the Code which reads as under : “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.” 13. This Section gives legislative recognition to the well established principle that every Court has inherent in its very constitution all such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice or in other words every Court has inherent power to act ex debito justitiae’. This Section gives legislative recognition to the well established principle that every Court has inherent in its very constitution all such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice or in other words every Court has inherent power to act ex debito justitiae’. However, inherent power cannot be exercised when the Code itself provides for a particular situation or contingency or provides for a procedure to be adopted. It is only when there is no provision in the Code for dealing with a particular situation, inherent powers of the Court conferred by Section 151 of the Code can be availed of by a party for redressal of its grievances. 14. In the facts of the present case, the suit cannot be said to have been instituted for want of permission, the Court obviously could not have exercised the powers conferred by Order XXXIX. There being no other provision in the Code to deal with such a situation, in such contingency the Court will not be powerless and a mere mute spectator to the trust property being wasted and damaged, and the inherent power can be invoked to pass suitable order to prevent the wastage and damage of the trust property. 15. In the case of Mohd. Ali v. Ahmed Ali, AIR 1945 All 261 (FB), while dealing with the question whether while setting aside the order of the District Judge removing the existing Mutuwalli of the Waqf and appointing another Mutuwalli on the ground that the order was without jurisdiction, the High Court could appoint a receiver to safeguard the property for such period during which proper proceeding could be instituted by the parties, the majority view observed as under : “Jurisdiction to protect property pending ascertainment of rights is inherent in any Court which once has cognizance in any form of a dispute involving the execution of a trust or the administration of assets and the Court has not merely the jurisdiction, but a duty to safeguard them.” 16. While upholding the power to appoint a receiver in such a situation to safeguard the trust property the following observation of the Calcutta High Court in the case of Fateh Ali Mirza v. Sajjad Hussain, AIR 1937 Cal. While upholding the power to appoint a receiver in such a situation to safeguard the trust property the following observation of the Calcutta High Court in the case of Fateh Ali Mirza v. Sajjad Hussain, AIR 1937 Cal. 740, was noted with approval by the majority : “We are of the opinion that it was well within the competency of the learned District Judge, 24 Parganas, in the exercise of its discretion to appoint the receiver pending the determination of all the matters in issue between the parties in the suit including the issue as to the competency of the suit.” It has further been observed as under : “Bearing in mind the principles laid down by the authorities mentioned above in cases analogous to the present one, it seems to me that the appointment of a receiver for a short period would be eminently just and convenient and the Court has ample powers for making such an appointment under Order 40 of the C.P.C. or in the alternative under Section 151 of the C.P.C.” 17. Relying upon the Full Bench decision of this Court in the case of Mohd. Ali (supra), the Madras High Court in the case of N. Anandam v. Ayyanna Gouvder, AIR 1994 Mad. 43 has also held that an order for appointment of receiver to protect and preserve the trust properties could be made by the Court even pending disposal of the application for leave under Section 92 of the C.P.C. 18. From the aforesaid discussions, it is clear that even pending determination of the issue as to the competency of the suit itself or in other words pending application seeking permission to file suit, powers of the Court can be invoked for passing suitable orders appointing a receiver to prevent the trust property from being wasted or destroyed. 19. Applying the same analogy the Court in exercise of its inherent power can pass suitable injunction order as well to preserve and protect the public trust properties during the pendency of the application for leave under Section 92 of the Code. 20. 19. Applying the same analogy the Court in exercise of its inherent power can pass suitable injunction order as well to preserve and protect the public trust properties during the pendency of the application for leave under Section 92 of the Code. 20. Even the absence of a express provision in the Code to meet such contingency also cannot constitute a valid ground to hold that Court has no power to pass such order, for two reasons; “firstly, power of Section 151 can be invoked when there is no express provision in the Code to meet the situation and secondly, provision cannot be presumed to be prohibited, as a general principle unless shown to be prohibited by law as observed by Mahmood J. in the case of Narsingh Das v. Mangal Dubey (83) 5 All 163 (FB) and noted by the Full Bench in Mohd. Ali (supra) case as under : “The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibition cannot be presumed.” 21. In view of the above facts and discussion, I have no hesitation in holding that court can invoke inherent power conferred by Section 151 of the Code to pass injunction order to preserve and protect the public trust property even pending disposal of application for leave to file suit under Section 92 of the Code. 22. However, the reason for upholding the power of the Court to pass injunction order during the pendency of the application for leave under Section 92 cannot be said to be available in the case of application for appointment of a Commission. Under Order XXVI Rule 9 the Court is empowered to issue a Commission during the pendency of the suit to make an investigation and submit a report elucidating any matter in dispute or to ascertain the spot situation. Under Order XXVI, Rule 10 the Commissioner is under an obligation to submit a report in writing and under sub-rule (2) the report of the Commissioner and evidence taken by him shall be evidence in the suit and form part of the record. Under Order XXVI, Rule 10 the Commissioner is under an obligation to submit a report in writing and under sub-rule (2) the report of the Commissioner and evidence taken by him shall be evidence in the suit and form part of the record. Evidence can only be taken on record by the Court in a pending suit for deciding the rights of the parties. While Considering the application for leave the Court does not adjudicate the rights of the parties. The Court has merely to see whether there is a prima facie case for granting leave to file the suit, i.e., to say suit to be instituted lies within the ambit and scope of Section 92 of the Code and for that the Court has to satisfy itself whether the persons asking for leave have interest in the trust, whether the trust is a public trust, whether there are grounds, prima facie, that there has been a breach of trust. For this satisfaction to be recorded by the Court the issuance of a commission to make local inspection provided by Order XXVI Rule 9 for the purpose of elucidating any matter in dispute or for ascertaining the market value of any property and the like can by no stretch of imagination be said to be required. The Commissioner’s report being in the nature of evidence, it is clear that without a suit being pending it cannot be taken on record and thus during the pendency of the application under Section 92 seeking leave to file suit, the Court cannot issue a Commission for inspection and submit a report for the same is neither required at the stage of grant of leave nor liable to be taken on record being in the nature of evidence in the absence of the suit being pending. 23. In view of the above facts and circumstances, the writ petition challenging the orders passed on the application for impleadment as well as injunction must fail and hereby stand dismissed. However, the order issuing Commission is not liable to be sustained and the same is hereby quashed. 24. As a result, the writ petition stands allowed in part. 25. However, in the facts and circumstances, there shall be no order as to costs. ————