Punjab-Haryana High Court
Lahore Hospital Society (Regd.) Delhi ... vs Kundan Lal Malhotra And Another on 16 November, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Civil Revision No.2006 of 2006 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.2006 of 2006 (O&M)
Date of decision: 16.11.2012
Lahore Hospital Society (Regd.) Delhi and others
......Petitioners
Versus
Kundan Lal Malhotra and another
.......Respondents
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: None for the petitioners.
Mr. Sumeet Mahajan, Senior Advocate,
With Mr. Vishal Sharma, Advocate,
for respondent No.1.
*****
A.N. Jindal, J.
The order dated 07.03.2006 passed by the trial Court, dismissing the application filed by the defendants-petitioners (hereinafter referred as 'the petitioners') under Order 7 Rule 11 CPC for rejecting the plaint, is under challenge.
The plaintiff-respondent No.1 (hereinafter referred as 'the respondent') had filed a suit for permanent injunction against Lahore Hospital (Regd.) Delhi having its head office at New Delhi and Branch Office at Ludhiana, known as Dr. B.L. Kapoor Memorial Hospital, Old Sabzi Mandi, Ludhiana and its trustees-petitioners for permanent injunction restraining them from alienating or transferring the property measuring 8 Acres 7 Kanals Civil Revision No.2006 of 2006 (O&M) 2 and 8 Marlas, as fully detailed in the heading of the plaint, situated at V. Katani Kalan, Tehsil and District Ludhiana, standing in the name of Lahore Hospital Society Regd. Old Sabzi Mandi, Ludhiana, purchased vide sale deeds bearing Vasika No.5213 dated 28.07.2000, 5214 dated 28.07.2000, 5375 dated 03.08.2000, 8862 dated 31.10.2000 in any manner. On service, the petitioners moved an application for rejecting the plaint on the following grounds:-
(i) Suit has not been filed as per provisions under Section 92 CPC.
(ii) Learned Advocate General has not filed the suit.
(iii) The respondent has no cause of action.
The trial Court dismissed the application with the following observations:-
"It is clearly held in Supreme Court cases that there is an inherent right to a person to bring a suit of a civil nature and unless the suit is barred by statute. A suit for its maintainability requires no authority of law. The scope of injunction suit, rather very much wider and to decide the matter of such type of suits the provisions of law are not strictly applied. The rejection of plaint at threshold as it entails very serious consequences, the plant can be rejected in extremely exceptional circumstances. The truthfulness of narration of facts in the plaint or written statement is not to be judged at its initial stage. As provisions of section 92(h) shown by the defendant do not exactly bar the plaintiff to sue the defendants by filing a suit for permanent injunction, therefore it is not permissible under law to reject the plaint in clause 'd' of order 7 Rule 11 CPC. It is clearly mentioned in Section 92 that direction of the Court is necessary for the administration of any such trust. The Advocate General or two more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, but as the plaintiff has not filed this suit under Section 92 and this is a simple suit for permanent injunction in which the right of the plaintiff is involved, therefore, it cannot be said that this suit falls under Section 92 of CPC."
Even otherwise, Section 92 of the CPC 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 Civil Revision No.2006 of 2006 (O&M) 3 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 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 situated 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 exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may
require.
(2) ....
(3) ....
A suit under Section 92 CPC is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable character and such suit should involve a direction of the Court for administration of any such trust and the subject matter of the trust may invite the direction of the Court to obtain the decree for removal of the trustee;
appointing new trustee; vesting any property in the trustee or directing the trustee, which has been removed or ceased to be trustee; to deliver possession of any trust property; directing accounts and enquiries; declaring what proportion of the trust property or what interest therein shall be allocated to any particular object of the trust; authorizing the whole or any part of the trust Civil Revision No.2006 of 2006 (O&M) 4 property to be let, sold, mortgaged or exchanged; settling a scheme or granting such further relief.
The present case is merely a suit for permanent injunction restraining the trustees not to waste, damage, alienate and transfer the property in any manner. The Hon'ble Apex Court in case Harendra Nath Bhattacharya and others Vs. Kaliram Das (dead) by his heirs and others, (1972) 1 Supreme Court Cases 115, while interpreting the provisions of Section 92 CPC, observed as under:-
"13. The High Court analysed the plaint which is primarily to be looked at for deciding the question of applicability of Section 92. The High Court was of the view that the reliefs claimed in the plaint were stated mainly in Para 12, which is analysed, would involve the following-
(1) A declaration that the suit land was Dharmottar land gifted to Bhanukuchi Sat Sangi Satra for a religious purpose and that the defendants had no personal interest therein except as trustees for the management of the Stra;
(2) A declaration that the defendants were bound to maintain the Satra with the income of the suit lands by observing the Doul festival and the usual Nam-Kirtan;
(3) For a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and that they had a right of access to the use of the Satra for various religious purposes;
(4) A claim for possession of the lands confined to the above reliefs.
It was added in the plaint that a scheme case would be instituted later on, if considered necessary. The High Court was of the view that none of the reliefs claimed in the plaint brought it within the terms of Section 92. It is well settled by the decisions of this Court 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 of the Code of Civil Procedure. It is quite Civil Revision No.2006 of 2006 (O&M) 5 clear that none of the reliefs claimed by the plaintiffs fell within the section. The declarations which were sought could not possibly attract the applicability of Section 92 of the Civil Procedure Code. The High Court was, therefore, right in holding that non-compliance with that section did not affect the maintainability of the suit."
The present suit also does not seek any particular direction towards administration of the trust and no such relief has been sought by the respondent, as may be covered by Section 92 of the CPC.
In these circumstances, the trial Court appears to have taken right view of the matter while rejecting the application under Order 7 Rule 11 CPC.
No grounds to interfere.
Dismissed.
(A.N.Jindal) 16.11.2012 Judge ajp