Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 574 (UTT)

KRIPAL SINGH BAJWA v. TRUST MANAV KENDRA

2012-09-13

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. This appeal is directed against the judgment and decree dated 29.3.1993, passed by the IV Additional District Judge, Dehradun, whereby the application (paper no. 11-C) moved under Section 92 C.P.C. by the applicant-plaintiffs (appellant nos. 1 to 3 herein) was rejected and in consequence of rejection of the application, the application for temporary injunction (paper no. 9-C) and the application to amend the suit (paper no. 40A) have been rejected. The suit has also been dismissed. 2. Brief facts giving rise to the present appeal are that on 2.4.1990, applicant-appellant nos. 1 to 3 herein Kirpal Singh Bajwa, Ram Chand and Master Harpinder Singh moved an application under Section 92 C.P.C. in the court of the District Judge, Dehradun, alleging therein that there is a trust for public purposes of charitable activities and religious nature situated at Village Bharuwala (Subhash Nagar) district Dehradun consisting of approximately 100 Bighas of land and various charitable buildings raised thereon including the worshipping places for the use and benefit of the general public at large and the said trust is known as ‘Manav Kendra’, which is being managed by a chairman and a managing committee i.e. defendant no. 2 to 30. In paragraph no.2 of the application, the applicants have claimed themselves to be followers of the charitable mission of the alleged trust ‘Manav Kendra’ having faith and belief in the spiritual teachings of late Sant Kirpal Singh Ji Maharaj, who had inaugurated the said trust. In paragraph no.3, the applicants have alleged the breaches having been committed by the defendant no.2 as contained herein. In paragraph no. 4 of the application, it is mentioned that the details are given in the draft plaint attached hereto as part of this application as well for a suit under Section 92 C.P.C. In paragraph no. 5, the relief sought in the suit have been enumerated in this application. In the application (paper no. 11-C) it has been prayed that leave of the court under Section 92 C.P.C. may be granted to file the suit. 3. On presentation of the said application, the Presiding Officer appears to have passed an on 2-4-1990 in his own hand to the following effect: - “Leave to file the application u/s 92 CPC is granted. Ofice to report.” 4. 3. On presentation of the said application, the Presiding Officer appears to have passed an on 2-4-1990 in his own hand to the following effect: - “Leave to file the application u/s 92 CPC is granted. Ofice to report.” 4. However, it appears that on the back of the draft plaint, the Munsarim of the Court on 2.4.1990 itself has endorsed his report on the point of limitation, jurisdiction of the court and sufficiency of court fee. The record was put up before the District Judge Dehradun on 4.4.1990. 5. It is obvious from a perusal of the original record that on 4.4.1990 on the report of the Munsarim, order to register the suit was passed and summons to file written statement were ordered to be issued fixing 24-5-1990 for written statement and 31-5-1990 for framing of issues. The District Judge on temporary injunction application (paper no. 9C2) also appears to have passed an ex parte order to maintain status quo in respect of the disputed property and on 4-9-1990, learned counsel for both the parties requested the District Judge to decide application under Section 92 C.P.C. first whether the suit is maintainable or not and the District Judge has fixed 5-9-1990 for hearing on objection on that point. 6. It also appears that the defendant nos. 16, 17 jointly and defendant no.30 separately have filed their written statements in the suit on 2-7-1990. 7. On 4-9-1990, the following order has been passed by the District Judge: “Present: Sri Hari Singh counsel for the plaintif. Sri S. C. Virmani counsel for the defendant. The parties’ counsel agree that the question of maintainability of the present suit u/s 92 C.P. C. be decided first. Fix for disposal of this preliminary objection on 5-9-90.” 8. It is an admitted fact of the case that no order was passed by the trial Court on the question of maintainability of the suit under Section 92 of the C.P.C. till the transfer of the suit to the court of Additional District Judge IV, Dehradun on 11-7-1991. 9. It is also not disputed that none of the parties has ever assailed the order dated 4-9-1990 passed by the District Judge, Dehradun reproduced above whereby it was agreed that the maintainability of the suit under section 92 of the C.P.C. was to be decided first, especially in view of the fact that the application (paper no. 9. It is also not disputed that none of the parties has ever assailed the order dated 4-9-1990 passed by the District Judge, Dehradun reproduced above whereby it was agreed that the maintainability of the suit under section 92 of the C.P.C. was to be decided first, especially in view of the fact that the application (paper no. 11-C) moved for obtaining leave of the Court under Section 92 C.P.C. had not been disposed of by the trial Court. 10. Undisputedly, only after 4-9-1990, objections against Section 92 application were filed in the trial court. It was only on 29-3-1993 that the trial Court passed the order on the application moved under Section 92 C.P.C. 11. In the court below, the defendants filed their objection paper no. 20-C and asserted that the suit under Section 92 C.P.C. is not maintainable because there is no trust in the name of Manav Kendra trust in Dehradun and that the respondent institution Manav Kendra is a society registered under the Societies Registration Act, 1860 bearing Registration No. 4037 and it runs Manav Kendra at different places including one centre at village Bharuwala, Subhash Nagar, Dehradun. It was denied that the defendant nos. 7, 13, 14, 15, 18 and 19 are the members of the said Manav Kendra institution and that the applicants are not interest in any activity of the said institution. It was denied that there is any breach of any rule or bylaws of the society. The opposite parties also denied that the immovable property of the society is being alienated against the interest thereof and that the court has no jurisdiction to entertain the application because the applicants have no locus to challenge the rules and byelaws of the society. It was also pleaded that the defendant no.13 is a dead person and therefore also the suit is barred. 12. The learned Additional District Judge after hearing both the parties by a detailed judgment and order dated 29-3-1993 has dismissed the application under Section 92 C.P.C. and consequently, the application for temporary injunction and application for amendment moved in the suit were rejected. The suit has also been dismissed, which gave rise to the present appeal. 13. I have heard learned counsel for the parties at length and perused the entire material placed before this Court including the original record of Suit No. 7 of 1990. 14. The suit has also been dismissed, which gave rise to the present appeal. 13. I have heard learned counsel for the parties at length and perused the entire material placed before this Court including the original record of Suit No. 7 of 1990. 14. Learned counsel appearing on behalf of the appellant nos. 1 to 3. Mr. M.S.Pal, Senior Advocate, has contended that the learned Additional District Judge has committed a manifest error of law in ignoring this fact that the respondent no.1 Manav Kendra is a registered society and not a constructive trust created for the purpose. The application has been rejected on the ground that it is not a trust but it is a registered society, therefore, the provisions of Section 92 C.P.C. cannot be invoked. 15. The main grounds of challenge raised in the appeal are that the court below has committed a grave illegality in holding that no permission was taken under Section 92 C.P.C. before filing the suit on 2-4-1990; that the court below committed illegality in allowing the application for amendment dated 5-7-199 1 (paper no. 47-C2) and that the court below has totally ignored the paper of the Income Tax Department wherein Manav Kendra Sawan Ashram, Shakti Nagar Delhi has been held to be a trust and by holding that the plaintiffs have failed to establish that Manav Kendra is a Trust and not a society and that the defendant no.1 Manav Kendra is a trust and this fact stands proved by the assessment orders in respect of the return for the assessment year 1986-87 passed by the Assessing Officer of the Income Tax Department and the paper no. 48C2 is already placed on record, but the learned court below failed to consider this fact and held that the defendant no.1 -Manav Kendra is not a Trust but merely a society registered under the Societies Registration Act. 16. Mr. M.S.Pal, learned Senior Advocate assisted by Mr. Tarun P.S.Takuli, appearing for the appellant nos. 1 to 3 has vehemently argued that the learned court below has committed illegality in rejecting the amendment application also, while the suit of the plaintiffs under Section 92 of the C.P.C. stood registered as Suit No. 7 of 1990 in the court below. 17. Mr. M.S.Pal, learned Senior Advocate assisted by Mr. Tarun P.S.Takuli, appearing for the appellant nos. 1 to 3 has vehemently argued that the learned court below has committed illegality in rejecting the amendment application also, while the suit of the plaintiffs under Section 92 of the C.P.C. stood registered as Suit No. 7 of 1990 in the court below. 17. Even if it is pleaded that the learned District Judge has not considered this fact that in the assessment order for the assessment year 1972-73 of the respondent no.1 passed by the Assessing Officer wherein the assessee (respondent no.1-defendant no.1) filed a return on 5-3-1975 and it is mentioned therein that the aims and objects of the society are charitable within the meaning of section 2(15), exemption under Section 11 of the Income Tax Act was allowed to the assessee. 18. Learned counsel for the appellants further contended that the learned trial Court lost sight of the fact that in the assessment order for the assessment year 1974-75 of the respondent no.1, it is mentioned by the Assessing Officer that the aims and objects of the society are charitable within the meaning of Section 2(15), therefore, exemption under section 11 of the Income Tax Act was allowed to the assessee, since the society is registered under Section 12A(a) of the Income Tax Act. Learned counsel for the appellants further submitted that in clause viii) thereof, it is also mentioned that all the donations are exempted under section 2(24) of the Income Tax Act. 19. Learned counsel for the appellants further argued that the respondent no.1 filed its return on Form No. 3A for the assessment year 1986-87. It is mentioned by the Assessing Officer that the aims and object of the trust are charitable within the meaning of section 2(15) of the Income Tax Act. Learned counsel for the appellant further submitted that in the assessment order for the assessment year 1984-85 also, the Assessing Officer has used the word ‘trust’ in the same manner. Therefore, it is an estoppel against the respondent to deny that it is trust and to say that the respondent no.1 is registered society. 20. Learned Senior Advocate Mr. Learned counsel for the appellant further submitted that in the assessment order for the assessment year 1984-85 also, the Assessing Officer has used the word ‘trust’ in the same manner. Therefore, it is an estoppel against the respondent to deny that it is trust and to say that the respondent no.1 is registered society. 20. Learned Senior Advocate Mr. M.S.Pal, appearing for the appellants further contended that the court below has already granted leave to institute a suit by an earlier order dated 2-4-1990, as provided in Section 92 of the C.P.C., therefore, there was no question of obtaining leave of the court again. The dismissal of the suit by the subsequent judgment and decree dated 29-3-1993 is illegal and without jurisdiction. Learned counsel for the appellants nos. 1 to 3 also submitted that in view of the legislative intent of Section 92 CPC, the words have been used as constructive trust created for public purposes of a charitable or religious nature, therefore, the respondent no.1 very well comes within the purview of this Section. 21. Learned Senior Advocate Mr. M.S. Pal appearing on behalf of the appellants no. 1 to 3 has placed reliance upon the case of Vidyodaya Trust Vs. Mohan Prasad R and others [(2008) 4 Supreme Court Cases, 115]. The Apex Court while dealing with the provisions of Section 92 of the C.P.C. has observed in paragraph 19 that when the plaintiffs do not sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of any other persons or persons in whom they are interested, Section 92 has no application. The Apex Court in paragraph no. 24 has held that “on a close reading of the plaint averments, it is clear that though the colour of legitimacy was sought to be given by projecting as if the suit was for vindicating public rights the emphasis was on certain purely private and personal disputes.” 22. The Apex Court in paragraph no. 24 has held that “on a close reading of the plaint averments, it is clear that though the colour of legitimacy was sought to be given by projecting as if the suit was for vindicating public rights the emphasis was on certain purely private and personal disputes.” 22. The Apex Court referring to the case of Sugra Bibi v. Hazi Kummu Mia [AIR 1969, Supreme Court, 884] has observed that it was held therein that the mere fact that the suit relates to public trust of religious or charitable nature and the reliefs claimed fall within some of the clauses of sub-section (1) of Section 92 would not by itself attract the operation of the section, unless the suit is of a representative character in the interest of the public and not merely for vindication of the individual or personal rights of the plaintiffs. 23. In the last paragraph no. 26, the Apex Court has held as under: “26. To put it diferently, it is not every suit claiming reliefs specified in Section 92 that can be brought under the section; but only the suit which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintif has sued and the purpose for which the suit was brought. The courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts. In that view of the matter the High Court was certainly wrong in holding that the grant of leave was legal and proper. The impugned order of the High Court is set aside. The appeal is allowed but without any order as to costs.” 24. On behalf of the appellants, reliance was also placed in the case of Sukumaran and others Vs. Akamala Sree Dharma Sastha Idol and others [AIR 1992, Kerala, 406]. In that case, the suit related to administration of temple. 25. Learned counsel for the appellant nos. 1 to 3- applicants of Section 92 application has also placed reliance upon the Full Bench judgment of the Kerala High Court in the case of Kesava Panicker Vs. Akamala Sree Dharma Sastha Idol and others [AIR 1992, Kerala, 406]. In that case, the suit related to administration of temple. 25. Learned counsel for the appellant nos. 1 to 3- applicants of Section 92 application has also placed reliance upon the Full Bench judgment of the Kerala High Court in the case of Kesava Panicker Vs. Damodara Panicker and others [AIR 1976, Kerala, 86], wherein it has been held that if there was a trust created by the public for a public charitable purposes namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and additional to those properties must also have the same character. It was also held by the Kerala High Court that a trust has been created and the High School buildings, the land, all appurtenances, furniture, equipment and all other properties are trust properties. 26. Learned counsel for the appellants has lastly submitted that once the suit had been registered by the trial Court, the application under Section 92 of the C.P.C. would to have been allowed and the suit should have been decided on merits. 27. On the other hand, learned counsel appearing on behalf of the respondent nos. 1, 4 and 15, Mr. V.K.Kohli, Senior Advocate, in reply thereto, has contended that it is an admitted fact to the appellants that the respondent no. 1 is a registered society registered under the Societies Registration Act, 1860, therefore, the provisions of the Societies Registration Act are applicable to the case at hand and that it does not lie in the mouth of the appellants to say that provisions of Section 92 of C.P.C. are applicable. The persons aggrieved may approach to the Registrar under Section 12-D of the said Act to cancel registration in case the registration of the society or of its name or change of name is contrary to the provisions of this Act or that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy. 28. Learned counsel for the respondents has further contended that the argument of the applicants-appellants has been rightly rejected on the ground that any society can also be formed for charitable and religious purposes. 28. Learned counsel for the respondents has further contended that the argument of the applicants-appellants has been rightly rejected on the ground that any society can also be formed for charitable and religious purposes. So far as the argument of the appellant that it is a constructive trust, when the society had been registered and byelaws have been framed, the society of the respondent no.1 would not fall within the definition of the constructive trust and that Section 92 CPC does not make any provision to remove the members of the society and to appoint new members, therefore, the relief sought in the application under Section 92 CPC cannot be granted to the appellants and the application under Section 92 CPC has been rightly dismissed. 29. Learned counsel for the respondents has further submitted that apart from the above, undisputedly the appellant nos. 4 to 6 had filed a Civil Suit in the High Court of Delhi, which has been registered as Suit No. 2017 of 2007, Manav Kendra Sudhar Committee Vs. Manav Kendra and others, for a decree of permanent and mandatory injunction. In paragraph no.9 of the plaint, it has been admitted that the composition of Management Committee of defendant no. 1/Manav Kendra society comprised of people from all walks of life and no wherein the plaint, it was stated the Manav Kendra was a trust. 30. Learned senior advocate appearing on behalf of the respondents further contended that the exemptions by the Assessing Officer of the Income Tax Department to the respondent no.1 were given treating the respondent no.1 as society and not as a trust, therefore, the appellants are not at all entitled to the relief sought in the application under Section 92 C.P.C. 31. Learned counsel for the respondent nos. 1, 4 and 15 has relied upon the judgment of Kerala High Court in the case of Abhaya, A Society Registered under the Travancore-Cochin Literary and others Vs. J.A.Raheem and others, wherein in paragraph no.8 it has been inter alia held that a formation of a Society under the provisions of Act XII of 1955 i.e. Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, to carry out any charitable or social purpose will not make the Society a public Trust. The Society is empowered to acquire property also to use for its purposes. The Society is empowered to acquire property also to use for its purposes. But that property which is to be acquired will only be the property of the Society and it will not be a property in respect of which it is possible to predicate a trust. 32. For a just decision of the appeal, a reference to Section 92 of the C.P.C. is necessary. The relevant extract of Section 92 reads 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 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 any property in a 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 exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.” 33. The applicant-appellants no. 1 to 3 themselves have stated in the application under Section 92 C.P.C. that the details are given in the plaint. I have perused the contents of the plaint annexed with the application under Section 92. In paragraph no. 5 of the plaint, the applicants have mentioned the rules and regulations. The alleged Rules and Regulations contain as many as 21 clauses and in the body thereof, only the word “society” has been used. I have perused the contents of the plaint annexed with the application under Section 92. In paragraph no. 5 of the plaint, the applicants have mentioned the rules and regulations. The alleged Rules and Regulations contain as many as 21 clauses and in the body thereof, only the word “society” has been used. In clause 13 thereof it is stated that the entire property and total assets of the Society shall vest in the Managing Committee and the Chairman and General Secretary shall jointly sign all the documents on behalf of the Society except when the Managing Committee authorises two members of the Managing Committee to sign on their behalf. In Clause 13 of para 5 of the plaint, it is stated that the Society shall not be dissolved unless 3/5 of the resolve to dissolve the Society and pass a special resolution to this effect. In clause 21, it is specifically mentioned that all the provisions of the Societies Regulation Act as applied to the State of Delhi will apply to this Society. 34. In this appeal, the short question which arises for consideration is as under: Whether the society formed under the Societies Registration Act for charitable and religious purpose can be amenable to Section 92 treating it to be a Trust? 35. Undisputedly, in paragraph no. 5 of the plaint, the applicant-appellant nos. 1 to 3 herein themselves have given details of the rules and regulations of the society and as such, they are to be governed by these rules and regulations. From a bare perusal of the clause No. 13 of paragraph no.5 it is stated that the entire property and total assets of the Society shall vest in the Managing Committee and the Chairman and General Secretary shall jointly sign all the documents on behalf of the society except when the Managing Committee authorises two members of the Managing Committee to sign on their behalf. The applicants have nowhere claimed that they are members of the Managing Committee or that either of them is a Chairman and General Secretary of the Managing Committee. In clause 21, it is specifically stated that the provisions of the Societies Registration Act as applicable to the State of Delhi shall apply to this society. The Apex Court in the case of Swami Paramatmanand SaraswatiVs. In clause 21, it is specifically stated that the provisions of the Societies Registration Act as applicable to the State of Delhi shall apply to this society. The Apex Court in the case of Swami Paramatmanand SaraswatiVs. Ramji Tripathi [(1974) 2 SCC, 695], it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 C.P.C. But if after evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the section, then suit purporting to be brought under Section 92 must be dismissed. 36. In my view the ratio of the case of Swami Paramatmanand (supra) is squarely applicable to the facts of the case at hand. From a perusal of the averments made in the plaint itself, it appears that an attempt has been made to bring the suit within the ambit of Section 92 CPC. 37. In addition to above, this Court in the case of Satyagayan Niketan Vs. Swami Shivshankargeri and another [2011(2) U.D., Page 444], while considering the provisions of Section 92 of the C.P.C. has held that mere formation of a society under the Societies Registration Act, to carry out a charitable or useful or social purpose cannot be regarded as amounting to creation of a Trust for application of Section 92 C.P.C. and that the property movable and immovable belonging to a society if not vested in trustees, shall be deemed to be vested in the governing body of such society. In this view of the matter, in the case at hand, it cannot be said that the defendant no.1 -Manav Kendra is a trust as envisaged by Section 92 of the C.P.C. 38. So far as the contention of the learned counsel for the appellant nos. 1 to 3 that after the suit has been registered, there is no need to obtain leave of the Court under Section 92 of the C.P.C. is concerned, the argument is without any legs. So far as the contention of the learned counsel for the appellant nos. 1 to 3 that after the suit has been registered, there is no need to obtain leave of the Court under Section 92 of the C.P.C. is concerned, the argument is without any legs. In the case at hand, it is admitted case of the parties that an application under Section 92 C.P.C. had been filed before the District Judge Dehradun on 2-4-1990. Admittedly, this application was pending till 4-9-1990 and the order dated 4-9-1990 was passed by the District Judge in presence of learned counsel for both the parties that it has to be decided first whether the suit is maintainable under Section 92 C.P.C. This order passed by the District Judge Dehradun had never been assailed before any higher Forum by either party, therefore, even if the suit was registered in the trial Court and written statement had been filed by some of the defendants does not establish the fact that permission to file the suit under Section 92 C.P.C. had been granted to the applicant-appellants. Moreover, the order dated 2-4-1990 passed by the District Judge on the application under Section 92 C.P.C. does not reveal that the application was in any manner was allowed and that too without application of mind. Even otherwise, the applicant-appellants had not taken for granted that leave of the court was already obtained in the case under Section 92 C.P.C. There is one more strong circumstance to fortify that from the side of the applicants, the application under Section 92 C.P.C. was presented before the District Judge on 2-4-1990 by Mr. Hari Singh, Advocate and the counsel for applicant-plaintiffs Mr. Hari Singh was present before the trial court on 4-9-1990 when the trial Court directed that maintainability of suit under Section 92 C.P.C. has to be decided first. There was every opportunity to the applicants through their counsel to have pointed out to the trial Court that leave of the court had already been granted and the matter of maintainability of the suit under Section 92 C.P.C. had already come to an end. Had it not otherwise, the applicants-appellants would have assailed the subsequent order dated 4-9-1990 passed by the District Judge, which was passed in presence of the counsel for the applicants that the maintainability of suit under Section 92 C.P.C. has to be decided first. 39. Had it not otherwise, the applicants-appellants would have assailed the subsequent order dated 4-9-1990 passed by the District Judge, which was passed in presence of the counsel for the applicants that the maintainability of suit under Section 92 C.P.C. has to be decided first. 39. I have also perused the impugned judgment and order passed by the trial Court. The trial Court has dealt with the controversy in detail. I also find that in paragraph no.5 of the draft plaint the applicants have mentioned the entire rules and regulations of the society. It appears that to give the society registered under the Societies Registration Act, the colour of a trust, an attempt has been made by the applicant-appellant nos. 1 to 3, and for that reason, the application under Section 92 C.P.C. was moved. 40. In the rules and regulations of the respondent no.1-society as demonstrated by the applicant-appellants in paragraph no. 5 of the plaint it clearly comes out from a perusal of clause 21 of paragraph 5 of the plaint, that the provisions of the Society Registration Act 1860 as applicable to the State of Delhi would be apply to the society in question. Therefore, it does not lie in the mouth of the appellants to say that the respondent no.1 is a public charitable trust and not a society. Considering the rules and regulations of the society as enumerated in paragraph no. 5 of the draft plaint, the learned Trial Court has rightly held that the applicants-appellants are not authorised to institute a suit. The trial Court has also rightly held that defendant nos. 7, 13, 14, 15, 18 and 19 are not the members of the Manav Kendra institution. 41. It is also pertinent to note that as agreed by the learned counsel for the parties that the maintainability of suit under Section 92 C.P.C. has to be decided first as is evident from a perusal of order-sheet dated 4-9-1990, referred to above, the contention of the learned counsel for the appellants no.1 to 3 that there is no need to consider the application under Section 92 C.P.C. is without any footing. The order dated 4-9-1990 has been passed in presence of the learned counsel for the parties and that order has not been assailed before any higher Forum, therefore, unless and until the application under Section 92 C.P.C. on the maintainability of the suit is decided, the suit ought not to have been lawfully registered. 42. So far as the contention of the learned counsel for the appellant that in the assessment order for the assessment year 1986-87 of the respondent no.1 the work trust has been used is concerned, it would suffice to mention here that in the said assessment order it is also mentioned that the facts of the case are the same as have already been discussed in the earlier years and after this observation it is mentioned that the aims and object of the trust are charitable within the meaning of section 2(15) of the Income Tax Act. Moreover, the exemption which has been given by the Assessing Officer of Income Tax Department to the respondent no.1-society has been given under Section 12A of the Income Tax Act. A society having public charitable and religious purpose can be registered under the said Act. In the case at hand, the respondent no.1 is a society registered under the Societies Registration Act and for that reason, it cannot be termed as a “trust”, therefore, the provisions of Section 92 are not attracted to the respondent no.1 society. The question is answered accordingly. 43. For the reasons and discussion above, in view of the Apex Court judgment in the case of Vidyodaya Trust Vs. Mohan Prasad R and others [(2008) 4 Supreme Court Cases, 115] wherein the case of Swami Paramatmanand (supra) has been relied upon, the application moved by the applicants-appellant nos. 1 to 3 has been rightly dismissed by the learned Additional District Judge and since the suit was registered under some wrong impression, the trial Court had no option but to dismiss the suit also. The impugned judgment and decree does not call for any interference in the appeal. The appeal being devoid of merit is liable to be dismissed outright. 44. The appeal is dismissed. The judgment and decree passed under appeal is upheld. Costs easy.