Shri Hamid Ahmed vs Shri Asad Mueed & Ors
2009 Latest Caselaw 3553 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   IA No.11871/2008 in CS(OS) No.326/2005
%                            Date of Decision: 04.09.2009
Shri Hamid Ahmed                                      .... Plaintiff
              Through: Mr.Chetan   Sharma,    Sr.Advocate    with
                       Mr.Bobby Lau, Advocate

                                     Versus

Shri Asad Mueed & Ors                             .... Defendants
              Through: Mr.Satinder Singh Bawa, Advocate for the
                       defendant No.1.
                       Mr.Prag    Tripathi,  Sr.Advocate    with
                       Mr.Simran    Mehta,  Advocate    for  the
                       defendant No.3.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                 YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   YES
3.     Whether the judgment should be reported in               YES
       the Digest?

ANIL KUMAR, J.

*

1. This is an application by the defendant no.1 under Order 7 Rule

11(d) of the Code of Civil Procedure for rejection of the plaint on the

ground that the suit should have been filed under Section 92 of the

Code of Civil Procedure and the suit for declaration and injunction in

not maintainable and therefore, the plaint is liable to be rejected. The

applicant has contended that the suit has been filed by the plaintiff

Sh.Hamid Ahmed, one of the mutawalli of defendant No.6, Hamdard

Dawakhana Wakf alleging inter-alia that Chief Mutawalli has been

running the Dawakhana in a wholly arbitrary and autocratic manner

only with a view to benefit himself and his sons and has not constituted

Majlis-e-Ayan and he has been handing over the entire working of the

Dawakhana to his sons contrary to the wishes of Wakif Mutawalli and

against the hierarchy as set by the Wakf Deed.

2. The applicant has contended that solely on the basis of the

averments made by the plaintiff and without in any way admitting,

accepting, conceding the same and without prejudice to any defence,

rights, contentions that the defendant no.1/applicant may have, the

suit for removal of defendant No.1 from the position of Mutawalli of

defendant No.6 as framed by the plaintiff is not maintainable as the

same has been filed in clear contravention of the provisions of Section

92 of the CPC. The applicant contended that according to the pleas and

contentions of the plaintiff, the appointment of defendant No.1 as

mutawalli of defendant No.6 is an attempt on the part of the defendants

to thwart the charitable object of defendant No.6 and thus the plaintiff

is seeking removal of defendant No.1 from the position of mutawalli.

According to the plaintiff Section 92(2) of the Code of Civil Procedure

clearly provides that a suit filed in respect of affairs of an alleged public

charity seeking any one of the reliefs enumerated in Section 92(1) of

Code of Civil Procedure can only be filed in conformity with the

provisions of said section. The relief sought by the plaintiff thus falls

within the ambit of Section 92(1)a) and thus the suit does not fulfill the

fundamental requirements as contemplated under Section 92 nor the

plaintiff has sought leave under Section 92 of the Code of Civil

Procedure which is not a procedural formality but is in fact mandatory

and goes to the very root of the jurisdiction and, therefore, the suit filed

by the plaintiff without obtaining the prior leave of the Court and

without being filed on behalf of two persons is barred and the plaint is

liable to be rejected. The applicant also contended that a special remedy

under Section 92 of the Code of Civil Procedure bars the general remedy

of an ordinary civil suit and Section 92 is an exhaustive provision in

respect of a suit seeking any of the reliefs enumerated in Section 92(1).

In the circumstances, the rejection of the plaint is sought under Order 7

Rule 11(d) of the Code of Civil Procedure.

3. The application is contested by the plaintiff contending inter-alia

that the application is not maintainable and has been filed with a view

to delay the proceedings. According to the plaintiff the suit seeks to

question the very right of defendant No.1 to hold and assume office who

is a mutawalli de son tort. According to the plaintiff none of the matters

assailed in the suit are in the realm of public trust of religious

charitable character or otherwise breach of trust or for administration

of trust. It is also contended that that the present legal proceeding is

not for the benefit of the general public but is a private action against a

wholly illegal act by defendants No.1 & 2. It is also contended by the

plaintiff that the defendant no.1/applicant has failed to show as to how

suit appears from the statement in the plaint to be barred by any law. It

is pleaded that the suit is maintainable and is not barred under Section

92 of the Code of Civil Procedure. The reliefs sought by the plaintiff do

not fall within the purview of Section 92 of the Code of Civil Procedure

which is also apparent from the fact that the suit has been filed by a

single person.

4. The application of the contested by the non-applicant contending

inter-alia that the application is not maintainable and apart from the

belated nature of the application and its malafide intention to delay the

proceedings. It is further contended that the suit seeks to declare the

appointment of the applicant end his assumption of office illegal, wrong

and void which itself is vitiated at the root. It is pleaded that defendant

no. 1 is mutawalli de son tort. The non-applicant also contended that

the suit is instituted by a single individual and the matter assailed in

the suit are not within the realm of public trust of religious charitable

character or otherwise of breach of trust or for administration of trust.

It has also been contended that the suit is not for the benefit of general

public but is a private action against a wholly illegal act perpetrated by

applicant and defendant no.2. In the circumstances it is prayed that the

application be dismissed.

5. The learned counsel for the parties have been heard at length.

The matter was heard on the interim application for injunction,

however, the order could not be pronounced as some of the documents

were in Urdu whose translation was stated to have been filed but which

were not filed and other reasons. The matter was, therefore, listed for

rehearing. Even during the arguments for interim orders the plea of suit

being barred under Section 92 was raised. The matter was, therefore,

relisted for hearing whereafter the present application under Order 7

Rule 11(d) of the Code of Civil Procedure was filed by the defendant

no.1/applicant. It is also relevant to note on perusal of the record that

an earlier application under Order 7 Rule 11 being IA No.6980/2005 is

on record on which notice was not issued. The pendency of the earlier

application had not been pointed out either by the defendant no1. /

applicant nor by the plaintiff, nor while arguing the present application

being IA No.11871/2008 also filed by the defendant no.1/applicant

under Order 7 Rule 11(d) of the Code of Civil Procedure, the pendency

of earlier application was pointed out.

6. Perusal of the plaint reveals that the plaintiff who himself is a

mutawalli seeks appointment of defendant No.1, another mutawalli as

wrong, illegal, arbitrary, void and against the provision of Wakf Deed

and also seeks permanent injunction against him to act as a mutawalli

or taking part in the affairs of the wakf. Paras 1 to 21 merely refers how

the wakf was created by Wakif Mutawalli, Hakim Abdul Hameed who

was also the chairman.

7. The plea of the plaintiff is that his grandfather Mr. Hakim Abdul

Hameed (Wakif Mutawalli) and father of the defendant Nos.2 & 3

expired and after his demise, Majlis-e-Ayan a body for general

superintendence of the wakf was to be formed for supervision and

functioning of the dawakhana. It is asserted that defendant No.2 who is

the Chief mutawalli has been running a dawakhana in a wholly

arbitrary and autocratic manner with a view to benefit himself and his

sons and he has not constituted Majlis-e-Ayan even six years after the

demise of Wakif mutawalli till the time of filing of the suit in March,

2005 or till filing of the present application. The plaintiff has pleaded

that defendant No.2 Chief mutawalli has been acting autocratically with

a view to benefit his sons including defendant No.1 whose removal is

sought and he is handing over the entire working of the dawakhana to

his sons contrary to the wishes of late Wakif Mutawalli and is acting

against the hierarchy as set by the wakf deed.

8. The plaintiff has categorically asserted in the plaint that

defendants No.1, 2 & 4 are taking decisions contrary to the interest of

the dawakhana as they are carrying on work of massive renovation

without any consultation and they are also buying and selling the

properties without consultation with the mutawallis which cannot be

permitted. The grievance is also made about Rs.154 crores lying in the

bank accounts which are not spent in accordance with the wakf deed. It

is pleaded that non utilizing the funds in accordance with the deeds

and declaration is against the interest of the wakf. In continuation of

the misdeeds, the chief mutawalli defendant No.2 is alleged to have

appointed his son defendant No.1 in contravention and against the

provisions of the wakf deed as 5th mutawalli which appointment is

wholly, illegal and fraudulent. The allegation is also made regarding

running of dawakhana by defendant No.1 & 4 contrary to the provisions

of wakf deed. The relevant paragraphs of the plaint raising these pleas

from paras 22 to 29 are reproduced for the sake of reference:-

22. That unfortunately in 1999 the father of the defendants No.2 and 3, the grand-father of the plaintiff, i.e. Wakif Mutawalli expired. As per the wishes of the late Wakif Mutawalli a Mujlis-e-Ayan which is a body for general superintendence of the Wakf was to be formed for supervision and functioning of the Dawakhana. However the defendant No.2 who was the Chief Mutawalli and who has been running the Dawakhana in a wholly arbitrary and autocratic manner, only with a view to benefit himself and his sons has not yet constituted the Mujlis-e-Ayan which was required to be constituted although a period of about 6 years has passed since the death of the Wakif Mutawalli and defendant No.2. Chief Mutawalli has been since then acting autocratically with a view to benefit his sons. He has been handing over the entire working of the Dawakhana to his sons contrary to the wishes of the late Wakif Mutawalli and against the hierarchy as set by the Wakf Deed.

23. That similarly the defendants 1, 2 and 4 are taking decisions contrary to the interest of the Dawakhana inasmuch as they are carrying on the work of massive renovation without any consultation as also buying and selling of properties without consultation with the Muttawallis which cannot be permitted.

24. That similarly there are huge amounts to the extent of Rs.154 crores which are lying in the bank accounts of the organization. The said amounts are not being spent in accordance with the Wakf Deed and the Declaration. The non utilization of the funds in accordance with the Deeds and Declaration and keeping the same in the bank accounts is against the interests of the organization.

25. That with a view to involve and hand over the work of the Dawakhana to his sons, he in contravention and against the provisions of the Wakf Deed appointed his sons Mr.Asad Mueed as a Fifth Mutawalli. The said appointment is wholly illegal, fraudulent and not as per the provisions of Wakf Deed.

26. That Mr.Asad Mueed could not have been appointed as a Fifth Mutawalli as no further Mutawalli or Mutawallis could have been added or altered during the life-time of the Mutawallis so appointed by the Wakif Mutawalli.

27. That Chief Mutawalli in collusion and conspiracy with defendant No.1 and 4 against defendant No.3 and plaintiff has been taking steps and running the Dawakhana contrary to the provisions of the Wakf Deed.

28. The defendant No.2 has been without the consent and approval of the plaintiff setting up factories which are not in the interest of the Dawakhana and public at large, the defendant No.2 is also selling and buying the property without consulting or taking approval of any kind whatsoever from the plaintiff and/or other Mutawallis.

29. That the defendant No.2 is carrying out the function of buying/selling property in the name of the Dawakhana through his son and is only encouraging and promoting his sons which is not in the interest of the Dawakhana and is contrary to the Wakf Deed."

9. Similarly averments have also been made by the plaintiff in his

replication to the written statement filed on behalf of defendant No.1. It

has been pleaded that defendant No.1 & defendant No.2 with a view to

usurp the properties of the wakf and so as to deny other mutawallis of

any information of any kind whatsoever in regard to the functioning of

the wakf has not convened to Majlis-e-Ayan inspite of several written

and oral requests made by the plaintiff and defendant No.3 in this

regard. It is also contended that the properties have been sold in a

clandestine manner. The plea of the plaintiff is that according to the

wakf deed the income and amounts were to be utilized for the purpose

of charity, however, instead of utilizing the money for charity about 154

crores are lying in fixed deposit. Other incidents of charity work not

being carried out by defendant No.2 is also alleged and it is asserted

that defendant Nos.2 & 4 are bent upon circumventing the wakf by

keeping the money legitimately meant for charity.

10 The learned counsel for the parties has argued the matter on

various dates whether the plaint is liable to be rejected or not under

Order 7 Rule 11 (d) of the Code of Civil Procedure. The counsel for the

applicant has relied on AIR 1940 Patna 425, Ramdas Bhagat v. Krishna

Prasad Tewari and Ors; (2003) 1 SCC 557, Saleem Bhai and Ors v.

State of Maharashtra and Ors; 27(1985) DLT 68, Hari Bhagwan Sharma

and Ors v. Badri Bhagat Jhandewalan Temple Society; 2121(1982) DLT

404 (DB), Shanti Devi v. State (Delhi Adminstration); AIR 1966 Jammu

& Kashmir 31, Arjun Nath and Anr v. Kailash and Ors; AIR 1972

Rajasthan 263, Association of Radhaswami Dera Baba Bagga Singh and

Anr v. Gurnam Singh and Ors; AIR 1960 Calcutta 558, Sarat K.Mitra v.

Hem Ch.Dey and Ors to contend that the suit is for removal of a trustee

as contemplated under Section 92 (1)(a) of the Code of Civil Procedure

and, therefore, the same being not in accordance with the provisions of

said section is barred and the plaint is liable to be rejected.

11. Per contra the learned counsel for the plaintiff/non applicant per

contra has relied on 156(2009) DLT 697 (DB), Anil Nanda and Anr v.

Escorts Ltd and Ors; AIR 2008 SC 1633, Vidyodaya Trust v. Mohan

Prasad and Ors; 2008 (104) DRJ 478, Anil Nanda and Another v.

Escorts Ltd and Ors; AIR 1976 SC 1569, Syed Mohd.Salie Labbai v.

Mohd.Hanifa; Kabul Singh and Anr v. Ram Singh and Ors, AIR 1986

Allahabad 75; Duttgir Mahant v. Rishi Ram, AIR 1993 P & H 231;

Sundralingam Chettiar v. S.Nagalingam & Ors, AIR 1958 Madras;

Janaki Bai Ammal v. Sri Tiruchitrambala, AIR 1935 Madras 825; Sanat

Kumar Mitra v. Hem Chandra Dey & Ors, AIR 1961 Calcutta 411; Sugra

Bibi v. Hazi Kummu Mia, AIR 1969 SC 884 and Abdur Rahim & Ors v.

Syed Abu Mohomed Barkat Ali Shah & Ors, AIR 1928 Privy Council 16

to contend that the suit simplicitor for removal of defendant no.1 who is

now alleged to be a trustee de son tort is maintainable as it is filed only

by one person and the relief claimed are not for appointment of another

trustee in place of defendant No.1 nor it is for administration and

running of the wakf, defendant No.6.

12. Order 7 Rule 11(d) contemplates that where the suit appears from

the averments made in the plaint to be barred by any law, then the

plaint can be rejected. The legal position is that to decide whether a

plaint is liable to be rejected under Order 7 Rule 11, averments in the

plaint have to be read without looking at the defense and thereupon it

has to be seen whether on the averments made in the plaint Under

Order 7 Rule 11 of the Code of Civil Procedure gets attracted. For

rejection of the plaint under Order 7 Rule 11 the averments in the

plaint should be unequivocal, categorical and specific leading to only

conclusion that the plaint is barred. Rejection of plaint is a serious

matter as it non suits the plaintiff and kills the cause of action and

consequently it cannot be ordered cursorily without satisfying the

requirements of the said provision. The effect of dismissal of suit is

altogether different and distinct from the effect of rejection of the plaint.

In case plaint is rejected under Order 7 Rule 11 of CPC, filing of a fresh

plaint in respect of the same cause of action is specifically, permitted

under Order VII Rule 13 of CPC. Altogether different consequence

follows in the event of dismissal of suit, which has the effect of

precluding the plaintiff from filing a fresh suit on the same cause of

action. Legal proposition that to decide the matter under order 7 rule 11

of the Code of Civil Procedure, averments in plaint only have to be read

without looking at the defense and thereupon it has to be seen whether

on the averments made in the plaint order 7 rule 11 of the Code of Civil

Procedure gets attracted or not can be culled from 2005 (4) AD (Delhi)

541, Kanwal Kishore Manchanda Vs S.D.Technical Services Pvt. Ltd.;

2005 (2) AD (Delhi) 430, Arvinda Kumar Singh Vs Hardayal Kaur; 2005

(116) DLT 191, Asha Bhatia Vs V.L.Bhatia; 2003 (5) AD (Delhi) 370,

Punam Laroia Vs Sanjeev Laroia 2004 (111) DLT 121, Condour Power

Products Pvt. Ltd. Vs Sandeep Rohtagi.

13. Relying on Kabul Singh and another (supra), it is contended that

in a suit where the primary object is vindication of individual or

personal rights of plaintiff himself, action under Section 92 of the Code

of Civil Procedure does not lie. It was further contended that if the

object of the suit is to settle controversy about right to manage trust

between present trustees and some other new trustees then suit is

outside the purview of Section 92. A suit under Section 92 of the Code

of Civil Procedure is a suit of special nature which pre-supposes the

existence of a public trust of religious or charitable nature and the

Court is required to ascertain from the plaint the dominant purpose of

the suit. In this case, the plaintiffs residents of Tehri having faith in

Sikh religion of Guru Granth Sahib claimed that the trustees of the

trust be removed and a scheme for management of the trust be framed

and new trustee in accordance with such scheme be appointed and also

sought rendition of accounts. In defense it was pleaded that Maharaja

Tehri Garhwal had a piece of land belonging to State and entrusted the

management thereof to the brother of defendant with right to nominate

his successor and the residents of Tehri are not entitled to intermeddle

and that the mis-management of the affairs of the Gurudwara were

denied. Considering the facts that the plaint was conspicuous by

complete absence of averment charging the trustees of mal-

administration or misconduct in respect of the trust, it was held that no

foundation was laid in the plaint to seek their removal and the purpose

of the suit was only to settle the controversy, whether the trustees-

defendants had rightful claim to manage the affairs of the trust in

preference to the trustee alleged to have been elected by residents of the

town. In these circumstances, it was held that the suit would be outside

the purview of Section 92. It was held that the relief of removal of the

members of the present trust was of little consequence and the suit

could not be under Section 92 of Code of Civil Procedure. The court in

Kabul Singh and another (supra) had relied on Swami Parmatmanand

Saraswati v. Ramji Tripathi, (1974) 2 SCC 695 and Charan Singh v.

Darshan Singh (1975) 1 SCC 298 holding that a suit under Section 92

of Code of Civil Procedure is a suit of a special nature which

presupposes the existence of a public trust of religious or charitable

nature. The Court is required to ascertain from the plaint the dominant

purpose of the suit. If on an analysis of the averments contained the

plaint, it transpires that the primary object behind the suit was the

vindication of individual or personal rights of third persons or the

plaintiffs themselves, an action under this provisions does not lie. It

was further held that even if all the other ingredients of a suit under

Section 92 are made out and it is clear that the plaintiffs are suing to

vindicate the right of the public but are seeking a declaration of their

individual or personal rights or the individual or personal rights of any

other person in whom they are interested, then the suit would be

outside the scope of Section 92. A suit whose primary object or purpose

to remedy the infringement of an individual right or to vindicate a

private right does not fall under Section 92 of the Code of Civil

Procedure.

14. In Duttgir Mahant (supra), a single Judge of Punjab and Haryana

High Court had held that Section 92 of the Code of Civil Procedure has

no application unless three conditions are fulfilled, i.e., the suit relates

to public, charitable or religious trust; it is founded on an allegation of

breach of trust or the direction of the court is required for

administration of the trust and the reliefs claimed are those which are

mentioned in the said Section. It was held that such a suit is one of a

special nature and therefore the allegation of breach of trust is not

substantial or if the plaintiffs fails to make out a case for a direction for

proper administration, the very foundation of the suit would fail. In

this case, a suit was filed under Section 92 for removal of defendants

from the trusteeship of the Dera and for appointment of new trustees

for the administration of the property of the Dera which is a religious

institution where persons belonging to various communities come for

worship.

15. On the facts and circumstances of the case, it was held that the

real test for the applicability of the Section 92 is to see whether suit is

fundamentally on behalf of public for vindication of a public right and

in order to apply the test the court must look to the substance and not

the form of the suit and in these circumstances it was held that the

trustee whose removal was sought was validly appointed and his

removal was not sought on any of the ground enumerated in Section

92 and in the circumstances it was beyond the purview of Section 92 to

embark upon an enquiry if the trustee was validly appointed.

16. Learned counsel for the plaintiff in order to substantiate his pleas

that the suit does not lie under Section 92 of the Code of Civil

Procedure and therefore the plaint is not liable to be rejected under

Order VII Rule 11 of Code of Civil Procedure has also placed reliance on

Sundaralingam Chettiar and others (supra). In a suit filed under

Section 92, one of the reliefs asked for in the plaint was for the removal

of defendants 1 to 5 from the trusteeship and the appointment of fresh

trustee in their place and for the amendment of the plaint. The plaintiff

in substance sought for declaration that an election of defendants No.2

and 3 as trustees and the election of first defendant as managing

trustee was invalid, such an amendment was held to be not permissible

as it would have resulted in introducing an entirely new cause of action

and setting up a case inconsistent with the case now pleaded and was

declined.

17. In Janaki Bai Ammal (supra), a suit was filed by an idol

represented by its Manager or Kariyasthar whereas the defendant was

the widow of late Zamindar of Melmandai who was sued as trustee of a

fund established for meeting the expenses of public worship and other

duties. The short question in the suit was whether Section 92 of the

Code of Civil Procedure would be applicable. On analysis of the facts, it

was held that the cause of action was that there was accumulated

balance of the collections in the hands of the defendant which the

defendant had refused to pay to the plaintiff. It was apparent that the

reliefs sought were for taking the action and direction to the defendant

to pay to the plaintiff such payment as may thereby be found due. In

these circumstances, it was held that whether a suit falls within Section

92 depends not upon the character in which the plaintiff sued, but

upon the nature of the reliefs sought. In the circumstances, it was

held that the suit was under Section 92 of the Code of Civil Procedure

and could not be instituted without obtaining the sanction from the

Advocate-General and dismissal of the suit by the District Munsif was

upheld.

18. To attract Section 92, the suit must be founded on the breach of

trust as was held in Sanat Kumar Mitra (supra) a single Judge of the

Calcutta High court had held that in order to attract provisions of

Section 92, the suit must be founded on a breach of trust and when the

material allegation in the plaint on which the cause of action is based,

is that the appointment of trustee is invalid, suit for removal of the

trustee is outside the Section 92. The Supreme Court in a suit for

removal of mutawalli and appointment of new trustee in case of a wakf

in favor of family members or founder and in favor of public, had held

that the provisions of Section 92 will be attracted and the suit filed

without the consent of Advocate-General was not maintainable in Sugra

Bibi (supra). In this case, a wakf deed had been executed by Hazi Elahi

Bux who had appointed his son and his son-in-law as joined

mutawallis, and on the death of a joint mutawallis the survivor was to

be sole mutawallis had the power to nominate his successor from the

family line of the settler. The mutawalli had died without nominating

the successor and a suit was filed for a declaration against the

surviving mutawalli that he was unfit to continue to manage the wakf

estate and he should be removed from the office of mutawalli and the

son of the plaintiff be declared fit and be appointed as mutawalli of the

wakf estate. An objection was taken that the suit is not maintainable

under Section 92 of Civil Procedure Code without the sanction of

Advocate-General. Relying on the principle laid down in Janak Bai v.

Sri Trichitrambala Vinayakar of Melamandai, AIR 1935 Madras 825, it

was held that the suit brought must be treated as a suit brought in a

representative capacity on behalf of all the beneficiaries of the wakf

which was created for public purpose of charitable and religious

natures and reliefs claims were not for enforcement of any private right

but reliefs for removal of the trustee and for appointment of a new

trustee in his place which fall within clauses (a) and (b) of Section 92 (1)

of Civil Procedure Code and thus the suit was not in individual capacity

but in representing all the beneficiaries of the wakf and in absence of

consent in writing of the Advocate-General, the suit was not

maintainable.

19. Learned counsel for the plaintiff has also relied on 156 (2009)

DLT 697, Anil Nanda and another v. Escorts Limited and others

whereby the judgment of a single Judge rejecting the plaint under Order

VII Rule 11 clause (a) and (d) of Code of Civil Procedure was set aside.

In this case, a suit was filed seeking a declaration that the merger of

Escorts Health Institute, Delhi and Chandigarh, was bad in law; a

decree for declaration of conversion of Escorts Health Institute,

Chandigarh into a limited company is void; a decree for permanent

injunction in favor of Anil Nanda, one of the sons of the settler,

restraining the others from transferring, alienating or otherwise creating

third party interest and against the transfer of shares and a mandatory

injunction for restoration of assets and properties to the original status

of a public charitable institution. The plaint was rejected by a single

Judge holding that the reliefs sought fall within the scope of Section 92

of Code of Civil Procedure and thus rejecting the plaint which order was

set aside by the Division Bench holding that a suit of a trustee against a

co-trustee is not covered by Section 92 of CPC and to attract the bar

under Section 92 of Code of Civil Procedure, the relief claimed for must

either fall in clause (a) to (g) or must be akin to clauses (a) to (g) to fall

in clause (h). Since the Division Bench was of the opinion that the

reliefs claimed for in the suit did not fall in clauses (a) to (g) nor were

akin to any of said clauses, mandatory leave under Section 92 of the

Code of Civil Procedure not obtaining the leave prior to institution of the

suit was held to be not fatal. Before the Division Bench it was rather

admitted by the counsel for the defendants that the reliefs sought in the

suit do not fall within the ambit of section (a) to (g) of Section 92 (1) of

the Code of Civil Procedure in Para 27 of the said judgment on page 713

in 156 (2009) DLT 697.

20. Reliance has also been placed by the petitioner on AIR 2008

Supreme Court 1633, Vidyodaya Trsut v. Mohan Prasad R and others

holding that if a suit is brought by an individual as representative of the

public for the vindication of public right, the court has to go beyond the

relief and having regard to the capacity in which the plaintiff has sued

and the purpose for which the suit is brought which is to be deciphered

from the averments made in the plaint. It is to be decided whether the

leave should be granted or not. The Supreme Court was dealing with

the issue whether the leave under Section 92 is a pre condition or a

condition precedent for the institution of a suit against a public trust

for the reliefs set out in the said section had held that unless all the

beneficiaries join in institution of the suit, if such a suit is instituted

without leave, it would not be maintainable at all. Relying on the object

of Section 92 and the language thereof, it was held that as a rule of

caution, the Court should normally, unless it is impracticable or

inconvenient to do so, give a notice to the proposed defendants before

granting leave under Section 92 to institute a suit, as the defendants in

such case can bring to the notice of the court that the allegations made

in the plaint are frivolous or reckless and can also point out that the

persons who are applying for leave under Section 92 are doing so

merely with a view to harass the trust or have such antecedents that it

would be undesirable to grant leave to such persons.

21. The learned Senior Counsel for the non-applicant/plaintiff has

strongly relied on some of the observations made in the precedents

relied on behalf of the plaintiff, however it must be remembered that a

decision is only an authority for what it actually decides. What is of the

essence in a decision is its ratio and not every observation found

therein nor what logically follows from the various observations made in

it. The ratio of any decision must be understood in the background of

the facts of that case. It has been said long time ago that a case is only

an authority for what it actually decides, and not what logically follows

from it. It is well settled that a little difference in facts or additional

facts may make a lot of difference in the precedential value of a

decision. Considering the present facts and circumstances, it may not

be necessary to deal with precedents in detail relied on by the parties in

the facts and circumstances of the present case as the present case is

apparently distinguishable from the fact situation of the most of the

precedents relied on by the parties. The Supreme Court in Bharat

Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR

2004 SC 778) had also held that a decision cannot be relied on without

considering the factual situation. In the same judgment the Supreme

Court also observed:-

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes".

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases".

In Ambica Quarry Works v. State of Gujarat and Ors.

MANU/SC/0049/1986 the Supreme Court had observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt Ltd

(2003) 2 SC 111 (vide para 59), the Supreme had observed:-

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

22. Though in the plaint it has not been pleaded that the defendant

no.1 is a trustee de son tort, however, in reply to the application for the

rejection of plaint it is asserted that defendant no.1 is a trustee de son

tort. A trustee de son tort is one who is without any appointment,

however, who takes upon himself the management of the Trust property

purporting to be the trustee. In Sanat K. Mitra (supra), it was held that

such a trustee is a "trustee" within the meaning of Section 92 of the

Code of Civil Procedure and a suit for removal of such a trustee with

invalid appointment or even with no appointment comes within the

ambit of Section 92. It was further held that unless the suit relates to a

trust for public purpose of a charitable or religious nature; if there is

breach alleged of such Trust or the direction of the court is deemed

necessary for administration of such Trust and the relief claimed is one

of the reliefs mentioned in Section 92, the suit shall be maintainable

under said Section. Each of these conditions must be specified in order

that the suit may be filed in the manner provided by the Section. It was

further held that one cannot evade the Section simply by adding certain

inconsequential reliefs not allowed by Section 92 when the suit is

clearly within the scope of the Section.

23. To infer whether the suit lies under Section 92 of Code of Civil

Procedure or not, generally the averment in the plaint had to be

considered. The substance of the plaint has to be understood in its

proper perspective, the reliefs claimed have to be kept in mind and then

the question of jurisdiction is to be determined. In Arjun Nath and

another (supra), it was held that the provision of Section 92 cannot be

avoided by adding some inconsequential reliefs which might not be

within the scope of the Section. Relying on Ramdas Bhagat v. Krishna

Prasad Tewari and others, AIR 1940 Patna 425, it was further held that

in considering the applicability of Section 92, the Court must look to

the substance of the claim and not merely to its wording. It was held

that Section 92 is applied to suits for removal of trustee de son tort, i.e.

de facto trustee and not de jure trustee. The trustee de son tort was

held to be different from trespasser. In Association of Radhaswami Dera

Baba Bagga Singh and another (supra), it was held that a trespasser

claims adversely to the Trust and so cannot be admitted to be a trustee

while the trustee de son tort does not claim adversely though his title to

act as a trustee may be defective and a suit against a trustee de son tort

or a de facto trustee shall be covered under Section 92 of Code of Civil

Procedure. It was further held that merely addition of a prayer for

declaration cannot take the suit from within the ambit of Section 92

when substantially all other conditions of the Section are otherwise

fulfilled. For a suit to be under Section 92, it was also held that the

suit must be not only in the interest of plaintiff individually but in the

interest of public or the trust itself. In Hari Bhagwan Sharma and

others (supra), it was held that where two or more persons have interest

in the trust and need to file a suit under Section 92, they must obtain

leave of the court to institute the suit and the permission of the Court is

a condition precedent to the institution of the suit. The provision of

Section 92 was also held to be mandatory in nature and grant of leave

to file the suit was held not merely a matter of form but of real

substance, being a condition precedent to institute the suit. In the

circumstances, it was held that in case a plaint is filed which is under

Section 92 of Code of Civil Procedure without obtaining the leave of the

court, the plaint is liable to be rejected.

24. In case the plaint is under Section 92 of Code of Civil Procedure

and the permission of the court which is mandatory is not obtained,

plaint can be rejected at any stage of the suit before the conclusion of

the trial. The Supreme Court had held so in Saleem Bhai and others

(supra) laying down that the trial court can exercise the power under

Order VII Rule 11 of Code of Civil Procedure at any stage of the suit,

before registering the plaint or after issuing the summons to the

defendant at any time before the conclusion of the trial. It was further

held that for the purpose of deciding an application under clause (a)

and (d) of Rule 11 of Order VII of Code of Civil Procedure, the averments

in the plaint are germane, the pleas taken by the defendant in the

written statement would be wholly irrelevant at that stage, therefore, a

direction to file the written statement without deciding the application

under Order VII Rule 11 of Code of Civil Procedure cannot be but a

procedural irregularity touching the exercise of jurisdiction of the trial

court.

25. If there is an evidence to show that the trustee de son tort was

guilty of mis-management, it will be a clear case for formulation of

scheme under Section 92 of the Code of Civil Procedure. The Supreme

Court in Syed Mohd. Saleie Labbai and others (supra) had held that

Section 92 applies where there is any alleged breach of any express or

constructive trust created for a public, charitable or religious purpose.

It was further held that it also applies where the direction of the court is

necessary for the administration of any such public trust. Relying on

Ramdas Bhagat v. Krishna Prasad Tewari and others, AIR 1940 Patna

425 at page 429 in Shanti Devi (supra), a Division Bench had reiterated

that in a suit under Section 92, the court can remove the trustee de son

tort. It was further held that in respect of a charitable trust no one can

appoint himself as trustee unless the trust deed so provides under

Section 92 of Code of Civil Procedure and the court can settle a scheme

to appoint new trustees, authorize the whole or any part of the trust

property to be let, sold, mortgage or exchange. It was further held that

under Section 34 of the Trust Act the court will not give an opinion,

advice and direction in the case of a charitable trust to a person who

cannot be better described then as a trustee de son tort. A trustee de

son tort was held to be liable again to what he has done or what he has

received while he was acting and cannot be heard to say that he had no

right to act as a trustee.

26. From the pleas raised by the plaintiff what is apparent is that the

plaintiff if claiming that the funds of the trust are lying unutilized and

are not spent on charity and the funds of the wakf are rather used for

massive renovations and for buying and selling the properties. It is

alleged that it is done in conspiracy by Chief Mutawalli/Defendant no.2

with defendant no.1 and defendant no.4. Though the removal of

defendant no.1 is also sought on the ground that he has not been

appointed in accordance with the wakf deed or that he could not be

appointed under the wakf deed, however, on reading of the entire plaint

it is apparent that it is just not the vindication of personal right of the

plaintiff but the plaintiff has sued to vindicate the right of the public at

large for utilization of the amounts of the wakf for charitable purposes.

The dominant purpose of the suit appears to be that the plaintiff is also

a mutawalli, however, he is not allowed to function as such and use the

income and the funds of wakf for charitable purposes rather the income

and funds of the wakf are used for renovation and for buying and

selling the properties which was not the intention and object of

deceased Wakif Mutawalli and the purpose of the wakf. It is also

contended that that the `dawakhana‟ is being run in an autocratic and

arbitrary manner. This is not disputed that the suit relates to public

charitable wakf. The charitable purpose and object of the wakf is to be

achieved through Majlis-e-Ayan which has not been constituted. The

allegations of maladministration or misconduct are categorical and

specific in the plaint. In the circumstances it will be difficult to infer

that the dominant purpose of the suit is not regarding functioning of

the charitable wakf which is deviating from its object of charity and on

account of conspiracy of some of the defendants, the trust rather is

indulging in sale and purchase of the properties and also indulging in

massive renovations. The allegations of the plaintiff are not that the

defendants are carrying on repairs but renovations, which in the

opinion of the plaintiff are superfluous and are not in consonance with

the object of the wakf which is charity. It is also averred in paragraph

28 of the plaint that setting up factories by Chief Mutawalli/defendant

no.2 without consultation with the plaintiff is not in the interest of

public at large. On a meaningful reading of the plaint what is apparent

is that the grievance of the plaintiff is that the Chief Mutawalli has

deviated from the object of the wakf for the purposes of charity and for

this purpose he has also appointed his son, defendant no.1, as a

mutawalli, though he cannot function as such.

27. The beneficiaries of the charity of the wakf are public at large and

in the circumstances it will be a suit in representative capacity by the

plaintiff seeking a direction to defendant no.2 to utilise the funds of the

wakf for charity and not to save them for some other purpose and also

desist from selling and buying the properties for the purpose of the

income of the wakf and rather to improve the functioning of

`dawakhana‟ which is allegedly being run in an autocratic and arbitrary

manner. The plaintiff has admitted in reply to the application that

defendant no.1 is a trustee de son tort i.e. though his appointment is

not in consonance with the requirement of the deed and the intention of

deceased Wakif Mutawalli, however, he has taken upon himself the

management of trust properties along with Chief Mutawalli/defendant

no.2. Then a suit under section 92 shall be maintainable even against

such a trustee as has been held in some of the precedents considered

hereinabove. In Ramdas Bhagat (supra) it was held that section 92

applies for the removal of trustee de son tort, who is different from

trespasser. If the case is of mismanagement of trust, alleged breach of

express or constructive trust created for public charitable purpose and

the directions is required from the Court, it will be a case of formulation

of scheme under section 92 of the Code of Civil Procedure. In this case

what is sought is that the `dawakhana‟ must not be allowed in

autocratic and arbitrary manner and from the funds of the wakf, charity

should be done instead of buying and selling the properties and

spending money on massive renovation which perhaps are not required.

28. Merely because the suit is filed by one plaintiff only and not by

two will not lead to inference that the suit is not under Section 92 of the

Code of Civil Procedure. It will not change the nature of the suit but it

rather shows the defect in the suit. Considering the entirety of the

plaint it is inevitable to infer that the reliefs which are available under

sub section (1) of section (92) of the Code of Civil Procedure have been

claimed by the plaintiff.

29. Since it has been held that the relief claimed primarily by the

plaintiff are which can be granted under section 92 (1) of the Code of

Civil Procedure, the plaintiff was liable to obtain leave of the Court. In

the circumstances, since the suit is under section 92 of the Code of

Civil Procedure and the leave of the Court has not been sought and has

not been granted and the plaint has been instituted by one plaintiff

only, the plaint is liable to be rejected under Order VII rule 11 of the

Code of Civil Procedure.

30. Therefore, for the foregoing reasons, the application IA 11871 of

2008 under Order VII Rule 11 (d) of the Code of Civil Procedure is

allowed and the plaint is rejected. The suit should have been filed by

the plaintiff under section 92 of the Code of Civil Procedure and in

compliance of its requirement. All the pending applications are disposed

of in the facts and circumstances, since the plaint has been rejected.

The parties are, however, left to bear their owns costs.

September 4th, 2009. ANIL KUMAR J.

„k/Dev‟