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2010 DIGILAW 2127 (ALL)

GAURI SHANKAR SARAOGI v. SHARDA PRASAD DWIVEDI

2010-07-21

PANKAJ MITHAL

body2010
JUDGMENT Hon’ble Pankaj Mithal, J.—Ram Kishan Dass, Har Kishan Das Saraogi is a public trust of religious and charitable nature created for the Hindu public. The said trust owned properties mentioned in Schedules ‘A’ and ‘B’ of the proposed plaint i.e. house Nos. 165, 167 situate at M.G.Road, Calcutta in Schedule ‘A’ and house No. 1/67 Peepal Mandi, Agra in Schedule ‘B’. 2. The two applicants/opposite parties both residents of Agra applied for leave of the Court at Agra to institute a suit under Section 92 C.P.C. for removal of the existing trusties two in number, both residents of Calcutta and for appointment of new trusties as well as for directing rendering of accounts of the trust. The application for grant of leave to file proposed plaint was opposed by the defendant/revisionists herein. One of the objection was that the property at Agra is no more in existence as it has been sold under the orders of the Calcutta High Court dated 28.4.1988, therefore, the application for leave is not maintainable. 3. The Additional District Judge, Agra vide judgment and order dated 12.8.1997 allowed the application and granted permission to file the suit under Section 92 C.P.C. Aggrieved by the aforesaid order, the defendants have preferred this civil revision under Section 115 C.P.C. 4. I have heard Sri Ravi Kiran Jain, Senior Advocate assisted by Sri Kshitij Shailendra for the defendant/revisionists and Sri B.D.Mandhyan, Senior Advocate assisted by Sri Tarun Gaur for the plaintiff (applicant)/opposite parties. 5. The basic argument of Sri Jain is that the impugned judgment and order is without jurisdiction. The Court at Agra had no jurisdiction to grant leave for institution of suit under Section 92 C.P.C. as no part of the property of the trust was situated in Agra at the relevant time. 6. Sri Mandhyan has countered the above argument by submitting that in fact one of the properties of the trust was at Agra and the illegal sale of the same would not affect the jurisdiction of the Court. He has further submitted that though no relief in respect of the property sold has been claimed in the proposed suit, nonetheless the action of the trustees in its sale was determintal to the trust as well as public at large therefore, a suit under Section 92 C.P.C. with the leave of the Court is maintainable. 7. He has further submitted that though no relief in respect of the property sold has been claimed in the proposed suit, nonetheless the action of the trustees in its sale was determintal to the trust as well as public at large therefore, a suit under Section 92 C.P.C. with the leave of the Court is maintainable. 7. Section 92 C.P.C. provides that where in a trust created for public charitable or religious nature there is any breach of such trust, the Advocate General or two or more persons having an interest in the trust with the leave of the Court may institute a suit for a decree for the purposes specified therein including that of removal and appointment of trustees and rendering of the accounts. Thus, from the plain language of the aforesaid provision it is apparent that two persons having interest in the trust have a right to maintain a suit under Section 92 C.P.C. with the leave of the Court. However, the moot question which arises for consideration is as to which Court is empowered to grant leave for institution of such suit or as to before which Court such a suit would be maintainable. 8. In order to answer the above question, it would again be beneficial to refer to the provision of Section 92 C.P.C. itself which also provides the forum where such a suit is to be instituted. It lays down that a suit may be instituted 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. Thus, such a suit can be instituted either: (1) in the competent Court of original jurisdiction; or (2) in any other Court empowered in that behalf by the State Government; provided that such a Court ought to be one within whose local limits of jurisdiction the whole or any part of subject-matter of the trust is situate. 9. This above second part of Section 92 C.P.C. is most important and relevant for the purposes of determining the jurisdiction of the civil Court where a suit is to be instituted. It has to be a Court where whole or any part of the subject-matter of the trust is situate. 9. This above second part of Section 92 C.P.C. is most important and relevant for the purposes of determining the jurisdiction of the civil Court where a suit is to be instituted. It has to be a Court where whole or any part of the subject-matter of the trust is situate. This part refers and qualifies both the Courts mentioned in the first part. 10. The subject-matter of the trust in the instant case could have been the two properties one at Calcutta and the other at Agra. The property at Agra having been sold much before the application for leave to institute the suit was moved only the property at Calcutta was left with the Trust. Thus, on the date on which the application for leave was moved there was no property of the trust or any part of the subject-matter of the trust at Agra. Therefore, to my mind, the Court at Agra lacked inherent jurisdiction for entertaining the suit under Section 92 C.P.C. or to grant leave to two or more persons to institute such a suit. 11. It is also relevant to note that the trustees against whom the suit is being proposed to be instituted are also not residing within the jurisdiction of the Court at Agra. 12. The view taken by me finds support from a decision of the Privy Council Bilasrai Joharmal and another v. Shivnarayan Sarupchand and others, AIR (31) 1944 PC 39, wherein the Lordships observed that the Court will not take upon itself the task to interfere with the administration of a charity when the charity has to be conducted in a different land outside the Courts jurisdiction where the Court is not in a position to supervise its administration effectively. 13. Sri Mandhyan had made a feeble attempt to defend the impugned judgment and order by saying that no such specific plea with regard to the jurisdiction was raised by the defendant/ revisionists in the Court below and, therefore they cannot be permitted to raise it for the first time in the revision. 14. I am not at all impressed by the aforesaid submission. First, for the reason that there is a specific reference of such a plea in the impugned judgment itself. 14. I am not at all impressed by the aforesaid submission. First, for the reason that there is a specific reference of such a plea in the impugned judgment itself. The impugned judgment refers to it in paragraph 3 as well as in paragraph 10 wherein it is mentioned that the property at Agra has been sold with the permission of the High Court at Calcutta and, therefore, the plaintiff/applicants have no right to file application under Section 92 C.P.C. Secondly where the question of jurisdiction goes to the very root of the matter, the plea of jurisdiction even if it has not been specifically raised in the Court below, it can always be permitted to be raised in appeal/revision or even at any subsequent stage including that execution of the decree. 15. Their Lordships of the Privy Council in Ram Lal Hargopal v. Kishanchandra and others, 1924 PC 95, ruled that an objection to the jurisdiction, however late in the day may be raised, if on the facts admitted or proved it is manifest that there is a defect of jurisdiction. 16. Again in the case Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340 , three Hon’ble Judges of the Supreme Court went on to observe as under: “It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and, that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.” 17. A similar view has been expressed by the Supreme Court in Most. Re. P.M.A. and others v. Moran Mar Marthoma and another, AIR 1995 SC 2001 , wherein the Court observed that plea of absence of jurisdiction of civil Court can be raised and entertained at any stage. 18. A similar view has been expressed by the Supreme Court in Most. Re. P.M.A. and others v. Moran Mar Marthoma and another, AIR 1995 SC 2001 , wherein the Court observed that plea of absence of jurisdiction of civil Court can be raised and entertained at any stage. 18. In view of above facts and circumstances, I am of the opinion that the Court below in passing the impugned judgment and order granting leave to the plaintiff (applicant)/opposite parties to institute the suit under Section 92 C.P.C. acted completely without jurisdiction as admittedly no part of the subject-matter of the trust was situate at Agra at the relevant time. 19. Accordingly, the impugned judgment and order dated 12.8.1997 passed by the Ist Additional District Judge, Agra in Misc. Case No. 417 of 1994 between Sharda Prasad Dwivedi and another and Gauri Shankar Saraogi and another suffers with jurisdictional error and is set aside. Consequently, the application for leave to institute the suit stands rejected. 20. This revision as such is allowed. 21. No order as to costs. —————