Jammu & Kashmir High Court - Srinagar Bench
Dr. Mohd. Yosuf Khan & Ors vs Kali Ram Das on 5 June, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR C. Rev. No. 69 of 2010 Dr. Mohd. Yosuf Khan & Ors Petitioners Sofi Gh. Qadir & others Respondents !Mr. A. Haqani, Advocate ^Mr. Javaid Iqbal, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 05/06/2010 :J U D G M E N T:
Iqbal Memorial Trust, Srinagar is registered under Societies Registration Act VI 1998 as is evident from the certificate of registration no. 428 S of 1978. The memorandum of the association and the rules relating to the establishment of the Iqbal Memorial Trust, Srinagar (hereafter referred to as the Trust), delineate objects of the Trust and map out functions and the powers of the Trust.
The objects of the trust are:
a. to work for the establishment of the educational institutions and professional centres.
b. to foster moral and spiritual values in education.
c. to promote higher education through oriental, national
and international languages.
c. to work for the social, cultural, scientific and economic
advancement of the society
The petitioners 1 and 2 and the respondent no. 1 are founder members of the Trust and are on its governing body. The respondents on 22 October, 2009 filed a suit under Section 92 of the code of civil procedure in the court of Principal District and Sessions Judge, Srinagar, against the petitioners 1 and 2 as contesting defendants and petitioner no. 3 as proforma defendant. The suit was assigned to 3rd Additional District Judge, Srinagar for its disposal. The respondents alongside the suit filed an application for grant of leave to file a suit under Section 92 of CPC. The respondents gave details of their association with the Trust and their interest in the affairs of the Trust. The respondents complained that the assets of the trust were being misused with impunity by petitioners 1 and 2 and omissions and commissions committed by the petitioners 1 and 2 in the administration of the Trust had shaken the confidence of the large sections of the society in general and the respondents in particular in the petitioners. The respondents insisted that in order to save the Trust and the educational institutions run by and under the auspices of the Trust, it had become necessary for the respondents to seek indulgence of the court. The respondents on the grounds urged in the application asked for leave to institute the suit under Section 92 of the CPC.
The learned trial judge on 22 October 2009 itself granted tentative permission to the respondents to institute the suit. However, the order was made subject to objections, if any, filed by the petitioners. The petitioners 2 and 3 filed their objections on 9-11-2009. The petitioners denied that the Iqbal Memorial Trust was a Trust in strict sense and insisted that the body though styled as a Trust was essentially a Society registered under J&K Societies Act 1978. The petitioners 1 and 2 pleaded that the administration of the Society was to be run in accordance with the memorandum of association and rules and regulations duly approved by the competent authority. The petitioners after giving an overview of the rules and regulations of the Society as they called it, gave the list of achievements made by the Trust/Society after it came into being. The petitioners disputed bona fides of the respondents in filing the suit and denied that any omission or commission as alleged in the plaint and the application was committed while administering the Trust/Society. The petitioners 1 and 2 gave details of the outstanding contribution made by the petitioners 1 and 2 to the cause of the Trust. The petitioners controverted the claim that the respondents had any prima facie case for grant of permission under Section 92 of Civil Procedure Code, more so when the respondents had failed to array Iqbal Memorial Trust as a party to the suit.
The learned trial judge vide order dated 17 April 2010 held the Trust to be a public Trust of religious and charitable nature. Learned trial judge held the respondents to be interested in the Trust. The learned trial judge proceeded to make initial direction dated 22 October 2010 absolute and in effect granted permission to the respondents to file suit under Section 92 against the petitioners.
The Trial Court order dated 17 April 2010 is called in question in the present revision petition on the grounds that the trial court while making the order exercised jurisdiction not vested in it under law. The trial court is said to have failed to appreciate that presence of an interest in the Trust is a sine quo non for grant of leave to file the suit and that the interest is to be real, substantive and existing and not remote, fictitious, contingent, hypothetical, emotional or mere sentimental. It is insisted that there was no material before the Trial Court to conclude that the respondents had any real, substantive or existing interest in the Trust. It is insisted that the Trial Court has proceeded on an erroneous assumption that Iqbal Memorial Trust was not required to be arrayed as a party defendant to the suit and that in absence of the Trust the suit was competent. The petitioner summarizing the role, if any, played by the respondents in the affairs of the trust insist that the Trial Court did not make proper inquiry to find out whether the respondents had an interest in the Trust as contemplated by section 92 of CPC. The trial court is said to have failed to take notice of the objections filed by the petitioners and averments made therein which according to the petitioners sufficiently demonstrate mala fide designs of the respondents. The Trial Court is said to have worked on an erroneous assumption that there was any breach of trust or any action was warranted to set right the defects in machinery of the Trust.
Heard and considered.
The jurisdiction of the Civil Court is all embracing. A civil court has jurisdiction to try all suits of the civil nature excepting those which are expressly or impliedly barred. Section 92 CPC carves out an exception in case of civil suits instituted against Trusts of charitable or religious nature created for public purpose. Section 92 does not bar suits of the kind envisioned by the section but contemplates a threshold screening by the civil court of original jurisdiction, so as to save public Trusts of charitable or religious nature from frivolous litigation aimed at harassment of the trustees or those responsible for running affairs of the Trust or to derail the public Trust from its chosen path. The public Trusts of charitable and religious nature play a key role in upliftment and empowerment of insular, marginalized and deprived sections of the society. If the litigation against such Trusts is left free for all, there would be a real danger to push the public Trusts to endless litigation and prevent them from pursuing their goals and realizing their objectives. Section 92 CPC makes leave of the court to institute a suit condition precedent for the type of suits alleging breach of trust against a public Trust of a charitable nature seeking reliefs enumerated in clause (a-h) sub-section I of Section 92. Section 92 CPC while insulating Public Trusts of charitable and religious nature against false and frivolous litigation also provides for a public right to bring a civil action against mismanagement, mal-administration and misappropriation of a Public Trust of religious and charitable nature. It provides for direction of the court for administration of a Trust and also enumerates the reliefs that two or more persons interested in the Trust may seek. Such reliefs range from removal of a trustee to setting a scheme for the Trust. To attract Section 92 CPC following conditions are to be satisfied.
1. Suit must concern to a Trust for public purpose of religious and charitable nature.
2. Suit must be of a representative character to enforce public rights as against individual interest of the plaintiff.
3. Suit must be by two or more persons having interest in the Trust.
4. Suit must be for an alleged breach of trust or circumstances necessitating the direction of the court for administration of the Trust.
5. Suit must be for grant of one or more reliefs falling within clauses (a-h) sub-section I of Section 92.
The principal court of civil jurisdiction approached for grant of leave to institute the suit has to satisfy itself before granting leave to institute the suit that all the above conditions are satisfied. The discretion is to be exercised in a responsible manner. The court has to satisfy itself that there is prima facie case either of breach of trust or necessity of direction for administration of the Trust. While the court is not under an obligation to issue notice to the defendant(s) before granting leave to file the suit, yet the court has to ensure that the Trust is a public charity, not put to unnecessary harassment by filing of vexatious suits by the parties prompted by ulterior motives and following their personal agenda in obtaining the leave. The court even at the threshold stage has to assess and evaluate bona fides of the would-be plaintiffs and make an endeavour to find out whether they are persuaded by the public interest as against the personal interest in asking for leave to file the suit against the Trust. The effort is to focus on the principles that must guide the court while dealing with an application for grant of leave to file a suit against the public Trust and to find out whether such guidelines have been followed or disregarded by the trial court while passing the impugned order.
Learned counsel for the parties while elaborating on their respective stands have extensively referred to the case law on the subject. The learned counsel for the petitioners to buttress his arguments places reliance on following reported cases:
Harendra Nath versus Kali Ram Das, AIR 1972, SC 246;
R. Venugopala Naidu and others versus Venkatarayulu Naidu Charities and others, AIR 1990, SC, 444;
R. M. Narayanna Chettiar and another versus N. Lakshmanan Chettiar and others, SCC (1991) 1, 141;
T. R. Ramachandra Iyer and another versus P. A. Parameswaran Mumbu and others, AIR 1919, Madras 384;
K. C. Thomas versus R. L. Gadeock and another, AIR 1970, Patna, 163; Kumudavalli and another versus P. N. Purushotham, AIR 1978, Madras 205; Gurdwara Prabandhak Committee, Delhi Cantonment and others versus Amarjeet Singh Sabharwal and others, AIR 1984, Delhi 39;
M/S Bhagwan Industries Limited versus Union of India, AIR 1984, Delhi 44; Rajpal Singh versus Union of India and others, AIR 1986 Punjab and Haryana, 237;
Ranga Natha Swami and others versus K V Ramesh Kumar and others, 2000, AIHC, 3834.
The learned counsel for the respondents on the other hand seeks to draw support from the following reported cases:
M/s D. L. F. Housing and Construction Company (P) Limited New Delhi versus Sarup Singh and others, SCC 1969(3) (SC) 807;
B. S. Adityan and others versus B. Ramachandran Adityan and others, AIR 2004 (SC) 3448;
Mayer Simon, Parur versus Advocate General of Kerela and others, AIR 1975 (Kerela) 57;
Kanhu Charan Pradhan and others versus Banambar Pradhan and another, AIR 1986 (Orissa), 213;
Lachman Das Udasi (deceased by L.Rs) and others versus Ranjeet Singh and others, AIR 1987 (Punjab and Haryana), 108;
L. M. Menezes and others versus Rt. Rev. Dr. Lawrence Pius and others, AIR 2004 (Madras) 97.
It is not advisable to reproduce law laid down and controversy involved in each and every reported case, reference whereto and reliance whereupon is placed by learned counsel for the parties. It would suffice to summarize hereunder principles laid down and emerging from the case law on the subject.
1. A suit under Section 92 of the court is a suit of special nature for the protection of public rights in public Trust and charities. The suit is on behalf of entire body of persons who are interested in the Trust. The named plaintiffs being the representatives of the public at large, it cannot be said the persons whose names are on the suit title are the only parties to the suit. The suit under Section 92 CPC is thus a representative suit and binds not only the parties but all those interested in the trust.
2. The court should normally give notice to the defendants before granting leave as a rule of caution but the court is not bound to do so in all circumstances and non-issuance of notice would not render the suit bad or non-maintainable as the defendants at anytime can apply for revocation of the leave.
3. The Trust is a necessary and proper party to the suit under Section 92 and the Trust can be impleaded/added as a party after the leave to file the suit is granted.
4. The interest in the Trust must be existing, present and not a remote, fictitious, illusory or contingent. A person having an interest in wellbeing and prosperity of the Trust may be taken to be a person having an interest in the Trust. It should be established that the persons who are complaining the mal-
administration of the Trust have a real interest in preasenti and not a mere sentimental interest.
5. It must be apparent from the pleadings and from the evidence, if any, led that the suit is not for vindication of personal or individual rights, but brought in a representative capacity.
6. The order under Section 92 granting or refusing leave to file a suit should be speaking or reasoned order so that the appellate court has advantage of going through the reasons that persuaded the Court to exercise discretion in a particular direction.
7. The High Court while exercising jurisdiction under section 115 CPC is not competent to correct errors of fact however gross, or errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself.
8. The High Court does not interfere with an order of the lower court where the rule and substantive justice has been done even though order may not be sustainable in law.
In the present case respondent no. 1/plaintiff is admittedly one of the three founder members of the Trust and by virtue of his being the founder member is the part of the governing body, which as apex body, is conferred with powers and saddled with the duties to run the affairs of the Trust and take vital decisions in realizing the objectives of the Trust. The respondents/plaintiffs 2 and 3 have been associated with the Trust in different capacities. The Trust having regard to its aims and objectives as also programmes and projects pursued, qualifies to be a Trust of a charitable and religious nature created for public purpose. The suit is brought not to vindicate any personal rights but to safeguard the interests of the Trust. The suit having regard to the averments made and the reliefs sought voices the grievance of not only respondents but all those interested in the wellbeing of the Trust. Learned trial judge while dealing with the application for grant of leave to institute the suit has been alive to all the ingredients of Section 92 CPC and the principles that must guide exercise of discretion under the aforesaid provision. Learned trial judge appears to have been aware of the conditions that are required to be satisfied by the person(s) seeking leave to institute a suit against the Trust and after making a threadbare discussion of the legal requirements as also the case set up by the respondents has arrived at the conclusion that the application for grant of leave to institute the suit deserves to be accepted. The trial judge notwithstanding his powers to grant leave to institute the suit without issuing notice to the defendants has in all fairness afforded a fair and adequate opportunity to the petitioners to oppose the application and has allowed the petitioners to file detailed objections to the application. The order impugned in the revision petition has been passed after dealing with the objections filed by the petitioners/defendants. The argument that failure on the part of the respondents to array the Trust as a defendant in the suit is fatal for the suit and warrants its dismissal, commands little respect. The Trust is represented in the suit by two of its three founder members the third being respondent no. 1/plaintiff no. 1 who also happen to be members of the government body of the Trust. The petitioners/defendants are in control of the affairs of the Trust. In the circumstances mere non-impleadment of the Trust at the threshold stage cannot lead to dismissal of the suit at the very outset. The respondents may take up proper steps for impleadment of the Trust after the leave to institute the suit has been granted. The facts of the reported case relied upon by learned counsel for the petitioners to canvass that the Trust is a proper and necessary party and its non-impleadment puts under cloud the very maintainability of the suit, are markedly different from the facts of the present case. In the case relied upon by the learned counsel for the petitioners though the Trust was a party to the suit, the plaintiffs thereafter deleted the Trust from the array of the defendants. It was in the said background that the suit was held liable to be dismissed.
For the reasons discussed, there is no material to suggest that the trial court has exercised the jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested or to have in exercise of its jurisdiction illegally or with material irregularity or otherwise caused failure of justice. The petitioners have failed to make out a case to vary, reverse or otherwise interfere with the order dated 17 April 2010 granting leave to institute the suit. The revision (69/2010) is bereft of merit and is accordingly dismissed.
Record be sent down. The parties shall appear before the trial court on 20th June, 2010.
(Hasnain Massodi) Judge Srinagar 05/06/2010 Nissar Ahmad