# Babu Lal & Ors. Revisionists v. Ravi Narayan & Ors

- **Citation:** (2021) 10 ILRA 32
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-26
- **Case number:** Civil Revision No. 4 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-lal-ors-revisionists-v-ravi-narayan-ors-46320
- **Pages:** 14

## Headnote

A. Civil Law - Code of Civil Procedure,1908
- Section 115 - public religious trust is not
being managed properly according to trust
deed conditions-proceeds of trust are
being utilized by the applicants for their
personal use which is prohibited in the
trust deed-it had been a public trust, no
question of partition of property of the
trust between private individuals -all the
conditions which must exist to invoke
Section 92 CPC are present-Even if the
stipulation in the trust deed that any
dispute be referred to Panch will not
override statutory provision since section
92 has been incorporated with an object
that the trust which is charitable or public
religious trust should be managed as per
the wish of the Founder of the trustHence, no illegality committed by the trial
court.(Para 1 to 38)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,714 of 47,559. This is a partial read: ask again with offset=39714 for what follows._

32 INDIAN LAW REPORTS ALLAHABAD SERIES
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A32
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J

Civil Revision No. 4 of 2021

Babu Lal & Ors. ...Revisionists
Versus
Ravi Narayan & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ram Kishore Pandey, Sri Himanshu
Raghav Pandey

Counsel for the Respondents:

A. Civil Law - Code of Civil Procedure,1908
- Section 115 - public religious trust is not
being managed properly according to trust
deed conditions-proceeds of trust are
being utilized by the applicants for their
personal use which is prohibited in the
trust deed-it had been a public trust, no
question of partition of property of the
trust between private individuals -all the
conditions which must exist to invoke
Section 92 CPC are present-Even if the
stipulation in the trust deed that any
dispute be referred to Panch will not
override statutory provision since section
92 has been incorporated with an object
that the trust which is charitable or public
religious trust should be managed as per
the wish of the Founder of the trustHence, no illegality committed by the trial
court.(Para 1 to 38)

The revision is dismissed. (E-6)

List of Cases cited:
1. Deoki Nandan Vs Murlidhar (1957) AIR SC
133

2. Ambrish Kumar Singh Vs Raja Abhushan Bran
Bramhshah & ors. (1989) All 194

3. Mahant Sita Ram Das & anr. Vs Ram Chandra
Arora & ors. (1988) ALL L J 259

4. Swami Parmatmanand Saraswati & anr. Vs
Ramji Tripathi & anr .(1974) AIR SC 2141

5. R.M. Narayana Chettiar & anr. Vs N.
Lakshmanan Chettiar & ors. (1991) AIR SC 221

6. B.S. Adityan & ors. Vs B. Ramachandran
Adityan & ors.(2004) 9 SCC 720

7. Ashok Kumar Gupta & anr. Vs Sitalaxmi
Sahuwala Medical Trust & ors. (2020) 4 SCC 321

8. Dhirendra Singh & ors. Vs Dhanai & ors.
(1983) AIR All 2016

9. Sri Satnarayan Ji Maharaj Virajman Mandir
Sat Narayan Dharmshala & ors. Vs Rajendra
Prasad Aggarwal & ors. (1997) AIR ALL 413

10. Karunanadhi & ors. Vs Gyan Prakash & ors.
(2014) 5 ADJ 467

(Delivered by Hon'ble Saral
Srivastava, J.)

1. The present revision has been
preferred by the defendants (hereinafter
referred to as 'applicant') against the
judgment and order dated 16.12.2020
passed by Additional District Judge, (FTC),
Mahoba granting leave to suit under
Section 92 of Code of Civil Procedure,
1908 (hereinafter referred to as 'CPC')

2. The facts, in short, are that the
respondents-plaintiffs (hereinafter referred
to as 'respondent') instituted a suit under
Section 92 of CPC praying for a decree to
remove the applicants from the trustee in
Shree Ram Laxman Janakiji Vakai Mandir,
Dubiyana, District Mohoba and further, the
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
33
applicant no.1 be directed to submit the
account of trust and to return the money of
trust which is in the hands of applicant
no.1. Further relief prayed was that a
trustee be appointed in the trust to manage
the property and temple as per the trust
deed.

3. The plaint case is that one Shiv
Charan Lal was the owner of a one-story
house, the shops situated in Khanga Bazar
Grantganj, District Mahoba, two-third part
of
Khata
Khewat
Number-2,
Mauja
Tindauli Mohal Dariyaw Patti Murtaja
Hussain Khan, Pargana Mohaba, and one
Bagh adjacent to Ramleela. He got
constructed a Devalya known as Ram
Laxman Janakiji. He executed a trust deed
dated 06.10.1909 registered on 07.10.1909
to manage the temple. The aforesaid
properties owned by Shiv Charan Lal were
dedicated to Shree Ram Laxman Janakiji
by the trust deed and proceeds of said
property are to be used for maintenance,
Pooja, and Bhog of the temple. Trust is a
public charitable trust. The temple is in a
dilapidated condition, and the applicant
no.1 who manages the trust is not
maintaining the temple from the income of
the properties of the trust. Further, the
allegation in the plaint is that the trust owns
a big market consisting of small shops over
the house owned by the Trust which has
been let out on rent. The income of the trust
is being used by applicant no.1 for his
personal use. It is further stated that a part
of shops owned by the trust has been let out
to Union Bank of India at the rate of
Rs.17,738/- per month and rent paid by the
bank is also used by applicant no.1 for his
personal use. The respondents claim that
they belong to the family of the applicants
and used to visit the temple for Pooja and
as such, they have an interest in the temple
of trust. The relevant paragraphs of the
plaint are extracted herein-below:-

"1-यह कि श्री किवचरन लाल पुत्र श्री
भैरो प्रसाद किवारी कनवासी महोबा खास एि
मंकिल दुिान पुख्ता वािै खनगा बािार स्थिि
ग्रान्टगंि िस्बा महोबा व खािा खेवट नम्बर-2
मौिा किन्दौली मोहाल दरयाव पट्टी मुरििा
हुसैन खां परगना महोबा िो दो किहाई व एि
बाग िो रामलीला से कमला हुआ है िे माकलि व
िाकबि िे। उन्होने एि किवाला पुख्ता श्री राम
लक्ष्मण िानिी िी िा िस्बा महोबा में बनवाया
िा। उसी मरम्मि व भोग व पूिा आकद िे सम्बंध
में िायदाद हस्ब िफसील िैल िो उक्त श्री
रामलक्ष्मण िानिी िी टरस्ट िो िररये
रकिस्टरीिुदा टरस्टनामा कदनांकिि 6 अक्टूबर
1909 िो िहरीर किया किसिी रकिस्टरी बही
नम्बर 1 किल्द नम्बर 22 िे सफा 154 िा 156
बनम्बर 188 िारीख 07 अक्टूबर सन्-1909 िो
रकिस्टरी िी गयी।

2- यह कि उक्त टरस्टनामा िे अंिगगि
आराकियाि हस्ब िफ्सील िैल ि माकलि श्री
रामलक्ष्मण िानी िी वािै िस्बा महोबा हुये
और उपरोक्त िायदाद से उक्त मंकदर िी देख
रेख पूिा व भोग आकद िा किया िाना िय किया
गया िा।

4- यह कि उपरोक्त टरस्ट राम लक्ष्मण
िानिी िी एि सावगिाकनि धाकमगि पस्िि
चैरीटेबुल
टरस्ट
है
किसिे
कि
उक्त
सवगराहिारान िायम किये गये िे।

8- यह कि उक्त टरस्ट िा मंकदर बडी
िीणग िीणग स्थिकि में है और उस पर िोई खचग
प्रकिवादी नम्बर 1 िो टरस्ट िा इन्तिाम िरिा है
खचग नहीं िर रहा है और वह मंकदर स्विः
कगराऊ हालि में है।

9- यह कि उपरोक्त टरस्ट िी सम्पकि
भवन/दुिान स्थिि ग्रान्टगंि िो मुन्दिाग िेड्यूल
अ मे है वह एि बहुि बडा मािेट है और उस
दुिान में बहुि सी छोटी छोटी दुिाने बनी है मे
34 INDIAN LAW REPORTS ALLAHABAD SERIES
टरस्ट िे बहुि से किरायेदारान आबाद है किससे
टरस्ट िी आमदनी लाखों रूपया माहवार
किराया आिा है िो प्रकिवादी नम्बर 1 स्विः
वसूल िर रहा है। यहॉ िि कि उक्त टरस्ट िी
सम्पकि में दुिान िा िुि भाग किसिा क्षेत्रफल
1267 वगग कफट है िा किरायेदार यूकनयन बैंि
आफ इस्िया मुबकलग 17738/-रू० माहवार
िा है इसिे अकिररक्त अन्य दुिाने अन्य
किरायेदारों िो अलहदा अलहदा बडी बडी
किराये िी रिमो में उठायी गयी है और उक्त
दुिानों से लाखों रूपया माहवार किराया िो
टरस्ट िा आिा है वह सब प्रकिवादी नम्बर 1
वसूल िरिा है लेकिन टरस्ट िा िोई बैंि खािा
नहीं खोला गया है और न ही टरस्ट िे किसी बैंि
एिाउन्ट में वह रूपया िमा किया िािा है और
न ही उक्त मंकदर िी पूिा पाठ मरम्मि देख रेख
में ही खचग किया िािा है बस्ि वह रूपया
प्रकिवादी नम्बर 1 अपने कनिी खचग में लािा है
और उसने टरस्ट िी अमानि मे खयानि िी है
किससे कि टरस्ट िा बहुि बडा नुिसान होिा है।

10- यह कि िो टरस्ट िा बाग स्थिि है
उसिी भी िो आमदनी होिी है वह प्रकिवादी
संख्या 1 स्वयं अपने इस्तेमाल मे लािा है और
टरस्ट में या मंकदर में पूिा पाठ आद मे ििई खचग
नहीं िरिा है और उसिा भी वह दुरूपयोग
अपने स्वयं इस्तेमाल में लािा रहिा है।

11- यह कि टरस्ट भूकम िो मौिूदा
िंदौली में स्थिि है उसिी भी बहुि िसीर रिम
टरस्ट िी आिी है किसिो भी प्रकिवादी नम्बर 1
स्विः लेिा है और अपने कनिी प्रयोग मे लािा है
िबकि यह सारी आमदनी टरस्ट िी सम्पकि से है
और प्रकिवादी नम्बर 1 उसिा दुरूपयोग िर
रहा है और उक्त टरस्ट एि पस्िि टरस्ट होने िे
नािे िो उसने अमानि मे खयानि िरिे टरस्ट
िा रूपया हिम िर कलया है इसकलये प्रकिवादी
नम्बर 1 सवगराहिार रहने िा हिदार नहीं है
और न ही टरस्ट िी सम्पकि िा इन्तिाम ही
िरने िा हिदारी है।

13- यह कि यह नहीं िो सम्पकि
उपरोक्त टरस्ट िी सम्पकि है उसिी एि दुिान
भूखि 1267 वगगकफट यूकनयन बैंि आफ
इस्िया िो 17738/- रू० माहवार किराये पर
िो उठाया है उसिा रकिस्टरीिुदा किरायानामा
13 िनवरी सन् -2011 िो 15 वर्ग लीि पर
यूकनयन बैंि आफ इस्िया िो श्री मनोि
किवारी िे िररये उठा कदया िबकि मनोि
किवारी न उक्त भवन िा माकलि है और न ही
िाकबि है और न ही उपरोक्त टरस्ट राम लक्ष्मण
िानिी िा टरस्टी ही है बस्ि वह प्रकिवादी
नम्बर 1 िा लडिा चन्द्रिेखर िा लडिा है
उसिो उक्त दुिान किराये पर उठाने िा िोई
हि नहीं है और इस िरीिे से टरस्ट िी आमदनी
17738/- रूपया माहवार यह लोग कमलिर िब्त
िर रहे है और टरस्ट िो नुिसान पहुुँचा रहे है।

14- य़ह कि वादीगण चूंकि गया
प्रसाद िे वाररसान है इसकलए उनिा कहि टरस्ट
में कनकहि है और वह मंकदर भी बराबर िािे रहिे
है और उसी मंकदर िे पास रहिे है। इसकलए
उनिा इस मंकदर िे इन्तिाम िरने में बहुि
िुछ योगदान पहले रहा।"

4. Based on aforesaid pleadings, the
respondents have prayed for the following
reliefs.

"(अ) यह कि प्रकिवादी नम्बर 1
बाबूलाल िे कवरूद्ध यह वाद किक्री किया िावे
और उन्हें श्री रामलक्ष्मण िानिी िी मंकदर वािै
महोबा टरस्ट व टरस्टी िे पद से हटाया िावे।

(ब) यह कि प्रकिवादी नम्बर 1 से
उपरोक्त टरस्ट िा कहसाब कििाब आि िि िा
िरने िे उपरांि िो रिम िी प्रकिवादी नम्बर 1
िे किम्मे कनिले उसे टरस्ट िो कदलाया िावे।

(स) यह कि अ रामलक्ष्मण िानिी
िी िा िोई योग्य सवगराहिार मुिरगर किया
िावे िो उक्त टरस्ट िी सम्पकि व मंकदर िा
इन्तिाम कनयमानुसार िरिा रहे।
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
35

(द) यह कि खचाग मुिदमा वादीगण
िो प्रकिवादीगण से कदलाया िावे।

(य) यह कि अन्य न्यायोकचि उपिम
िो िरीने इन्साफ अदालि हो बहि वादीगण
कवरूद्ध प्रकिवादीगण साकदर फरमायी िावे।"

5. The respondents also filed an
application on the same averments as in the
plaint to leave for the institution of the suit
as contemplated under Section 92 (1) of
CPC along with plaint.

6.
The
leave
application
was
contested by the applicants contending
inter alia that the respondents are not the
family members of the applicants. It is also
submitted that trust is a private trust and,
therefore, the provisions of Section 92 of
CPC are not applicable. It is also pleaded
that the respondents have not submitted any
claim according to which trust should be
managed. Besides the above, applicants
took several other grounds.

7. The trial court after noticing the
contention of applicants as well as
respondents and the conditions stipulated in
the trust deed in terms of which the trust is
to be managed, recorded a prima facie
opinion that trust is a public trust. The trial
court while recording the said finding has
considered seven stipulations in the trust
deed in terms of which trust is to be run.
The first condition is that the Government
tax is to pay from the income of the trust,
and the income of the trust is to be used for
expenses incurred in Bhog and Pooja, etc.
of the temple. No trustee has the right to
transfer the property of trust or can do any
business for his benefit from the property
of the trust. The second condition relates
to the appointment of Pujari for the
Temple. According to the third condition,
the income accrued from the property of
trust shall be used for Bhog and Pooja, and
trustees and their heirs shall not object to
the expenses which are to be incurred for
bhog or pooja and they shall maintain the
accounts
of
expenses.
The
fourth
condition provides that if the trustee is
ineligible or refuses to act as trustee, the
Peshwakar Malik or head of the family of
the Founder of Trust will act as trustee. The
fifth condition provided that if any trustee
wishes to start any new venture not
mentioned in the trust deed, the accounts
shall be maintained and audited by five
reputable persons of the Panchayat. As per
the sixth condition, if there arises any
difficulty in paying the state revenue, the
state revenue can be paid from other
property of the trust. According to the
Seventh Condition, the Founder reserves
the
right
to
change
manager
and
management of the trust, and the manager
shall strictly follow the conditions of the
Trust in managing it; if any member does
not wish to continue, he may be replaced
by a generous and competent person by the
Panchas who shall also abide by the
conditions of the Trust.

8. After noticing several conditions of
the trust deed, the trial court did not agree
with the contention of applicants and
opined that trust is not a private trust.
Accordingly, it held that the conditions
envisaged under Section 92 of CPC for
grant of leave to institute a suit are present,
consequently, it allowed the application of
respondents and granted leave to institute
the suit.

9. Challenging the aforesaid order,
learned counsel for the applicants has
submitted that the trial court has committed
a manifest error of law in recording a
finding that trust is a public trust since
reading of trust deed discloses that the
36 INDIAN LAW REPORTS ALLAHABAD SERIES
beneficiaries are not public at large and,
therefore, the first condition to invoke
Section 92 of CPC that trust should be a
public trust of religious character is lacking
in the instant case. Thus, he submits that
the trial court has erred in granting leave to
institute the suit.

10. He further submits that the trust
deed provides that if there exists any
dispute of maintenance of trust, the same
may be referred to the five Panch.
Accordingly, he contends that since a
forum for redressal of dispute is provided
in the trust deed, therefore, proper remedy
to the respondents is to approach five
Panch of Panchayats who is entrusted with
the job of resolving disputes. Accordingly,
he submits that suit under Section 92 of
CPC is not maintainable. Lastly, he submits
that the respondents are stranger and they
have no locus to file a suit. Accordingly,
the suit is not maintainable at the behest of
the respondents.

11. I have heard learned counsel for
the applicants and perused the record.

12. To proceed with the aforesaid
contentions of learned counsel for the
applicants, it would be necessary to have a
glance at Section 92 (1) of CPC which
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 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
situate 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
inquires;

(e) declaring what proportion of
the trust property or of the interest therein
shall be allocated to any particular object
of the trust;

(f) authorising 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."

13. Reading of Section 92 of CPC
suggests that three conditions must exist for
the maintainability of the suit; (1) There
shall be a trust created for the public
purpose of charitable or religious nature.
(2) There is a breach of trust or direction of
the court is deemed necessary for better
administration of the trust. (3) The suit
must contain the relief as provided under
Section 92 (1) of CPC. Thus, to maintain a
Suit under Section 92 of C.P.C, the
aforesaid three conditions must exist, and if
any of the aforesaid conditions is lacking or
missing, the suit under Section 92 (1)
would fail.
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
37

14. At this point, it would be apt to
refer to the judgment of the Apex Court in
the case of Deoki Nandan Vs. Murlidhar
1957 AIR (SC) 133 which has been relied
upon by learned counsel for the applicants
which define the distinction between a
private trust and a public trust. Relevant
paragraphs 5 and 7 of the judgment is
reproduced as under:-

"5. It will be convenient first to
consider the principles of law applicable to
a determination of the question whether an
endowment is public or private, and then to
examine, in the light of those principles, the
facts found or established. The distinction
between a private and a public trust is that
whereas in the former the beneficiaries are
specific individuals, in the latter they are
the general public or a class thereof. While
in the former the beneficiaries are persons
who are ascertained or capable of being
ascertained, in the latter they constitute a
body which is incapable of ascertainment.
The position is thus stated in Lewin on
Trusts, Fifteenth Edition, pp. 15-16:

By public must be understood such
as are constituted for the benefit either of the
public at large or of some considerable
portion of it answering a particular
description. To this class belong all trusts for
charitable purposes, and indeed public trusts
and charitable trusts may be considered in
general as synonymous expressions. In
private trusts the beneficial interest is vested
absolutely in one or more individuals who
are, or within a certain time may be,
definitely ascertained.....''

Vide also the observations of
Mitter J. in Haji Mahammad Nabi Shirazi
v. Province of Bengal I. L. R. [1942] 1 Cal.
211 at pp. 227, 228: (AIR 1942 Cal. 343 at
p.349) (B). Applying this principle, a
religious endowment must be held to be
private or public, according as the
beneficiaries
thereunder
are
specific
persons or the general public or sections
thereof.

7. When once it is understood
that the true beneficiaries of religious
endowments are not the idols but the
worshippers, and that the purpose of the
endowment is the maintenance of that
worship for the benefit of the worshippers,
the question whether an endowment is
private or public presents no difficulty. The
cardinal point to be decided is whether it
was the intention of the founder that
specified individuals are to have the right
of worship at the shrine, or the general
public or any specified portion thereof. In
accordance with this theory, it has been
held that when property is dedicated for the
worship of a family idol, it is a private and
not a public endowment, as the persons
who are entitled to worship at the shrine of
the deity can only be the members of the
family, and that is an ascertained group of
individuals. But where the beneficiaries are
not members of a family or a specified
individual, then the endowment can only be
regarded as public, intended to benefit the
general body of worshippers."

15. In the light of the principle
enunciated by the Apex Court in Deoki
Nandan (supra), this Court will analyze in
the latter part of the judgment as to whether
the finding of the trial court that the trust is
a public trust is based upon the sound
principle of law.

16. Now, it would be apposite to
consider few judgments on the scope and
purpose of grant of leave under Section 92
of CPC for instituting the suit, and whether
the order granting of leave of the court to
institute the suit under Section 92 of C.P.C
would prejudice the rights of parties in the
disposal of the suit.
38 INDIAN LAW REPORTS ALLAHABAD SERIES

17. This Court in the case of Ambrish
Kumar Singh Versus Raja Abhushan
Bran Bramhshah and others 1989 ALL
194 has held that while granting leave, the
court does not decide the rights of the
parties. Paragraphs 10 and 11 of the said
judgment is extracted herein-below:-

"10...

While granting leave the court
does not decide the rights of the parties. No
right is adjudicated at this stage. The Court
has merely to see whether there is a prima
facie case for granting leave to file a suit.
This order does not in any way affect the
final decision which will be given on merit
after the parties have led evidence in the
suit.

11. So far as S. 92 C.P.C. is
concerned it does not contemplate of giving
any notice to the proposed defendants
before granting leave. However, it has been
held by the decision of this Court reported
in 1987 All LJ 369, Mahanth Gurmukh Das
v. Bhupal Singh, that the proceedings
under
S.
92,
C.P.C.
are
judicial
proceedings and the order of the District
Judge is a judicial order. The Court should
pass the order after hearing the defendants.
It is not necessary to pass a detailed order.
It is sufficient if the order indicates that it is
the result of the due application of mind of
the Judge. May be that he has not written
very elaborate order which in my opinion it
was actually not needed.

There is application of mind.
Moreover, I see no jurisdictional error or
illegal exercise of jurisdiction."

18. Similar view has been reiterated
by this Court in the case of Mahant Sita
Ram Das and another Vs. Ram Chandra
Arora and others 1988 ALL LJ 259.
Relevant paragraphs of the said judgment
are extracted herein-below:-

"3. .... There can not be any doubt
that when the court grants leave the same
is in a judicial proceeding and the order
passed by the District Judge is a judicial
order. However, while granting leave the
rights of the parties are not adjudicated
and at this stage the court has merely to see
whether there is a prima facie case that
should be allowed to be filed. By giving
consent the court does not affect the rights
of the parties against whom the suit is filed
as after granting the leave the parties will
have an opportunity to present their case
before the Court in which the suit is filed.
As at the time of granting the leave the
District Judge will have to see only a prima
facie case the conclusion of the District
Judge will in no way affect or influence the
final decision which will be given in the
suit after the parties had led evidence. So
far as S. 92 CPC is concerned, it does not
contemplate of giving any notice to the
proposed defendants before granting the
leave. In case the intention of the
Legislature was that a notice was to be
issued to the proposed defendants before
granting leave there is no reason as to why
the Legislature would not have specifically
made a provision in this respect. The
Legislature in its wisdom has thought it fit
to confer the aforesaid power in this behalf
on a Judicial Officer of the status of a
District Judge, whose mind is well trained
to act judicially. It has further to be seen
whether the principles of natural justice
would require of giving of a notice to the
proposed defendants. The notice would
have been necessary if the order adversely
affects
the
rights
of
the
proposed
defendants.
By
merely
giving
the
permission the District Judge does not
affect the rights of the proposed defendants
against whom the suit is allowed to be filed
and thus even the principles of natural
justice would not be attracted so as to make
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
39
it necessary for the District Judge to issue
notice to the proposed defendants and to
hear them. It can not thus be said that the
proposed defendants as a matter of right
can claim either issuing of notice or a
hearing before the District Judge grants
leave for filing the suit under Sec.92 CPC .
However, in a given case the District Judge
in order to satisfy himself may in his
discretion like to hear the proposed
defendants before granting the leave. The
issuing of the notice by the District Judge
was thus not necessary and the argument
raised by the learned Counsel for the
applicant has no force.

4. It has now to be seen as to
whether the District Judge while granting
leave under Section 92 CPC has to pass a
detailed speaking order. It is true that the
order granting leave by the District Judge
is a judicial order and should indicate that
the District Judge applied his mind before
granting leave. However, as rights of the
parties are not affected, it is not necessary
to pass detailed order but it would suffice if
the order indicates that it has been passed
by the District Judge after due application
of mind."

19. The Apex Court in the case of
Swami Paramatmanand Saraswati and
another Versus Ramji Tripathi and
another AIR 1974 SC 2141 has held that
the only allegation in the plaint is to be
seen at the first instance to determine
whether the suit falls within the ambit of
Section 92 of CPC. Paragraph 14 of the
said judgment is extracted herein-below:-

"14. It is, no doubt, true 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 [see Association of
R.D.B. Bagga Singh v. Gurnam Singh, AIR
1972 Raj 263; Solhan Singh v. Achhar
Singh, AIR 1968 Punj and Har 463 and
Radha Krishna v. Lachmi Narain AIR 1948
Audh 203]. 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 facts or
reason but is made only with a view to
bring the suit under the section, then a suit
pur- porting to be brought under Section 92
must be dismissed. This was one of the
grounds relied on by the High Court for
holding that the suit was not maintainable
under Section 92."

20. In the context of the scope of the
grant of leave to sue under Section 92 of
CPC, it would be worth noticing the
judgment of the Apex Court in the case of
R.M. Narayana Chettiar and another Vs.
N. Lakshmanan Chettiar and others AIR
1991 SC 221. The Apex Court has held that
if no notice is issued to the defendantapplicant granting leave under Section 92
of CPC that would not render the suit
invalid. It further held that though an order
refusing to leave is appealable under
Section 104(ffa) of CPC, it does not
connote that it is obligatory upon the court
to issue notices to the proposed defendant
before granting leave. The Apex Court
further opined that it is the plaintiff who is
prejudiced by refusing to grant leave and
not the defendant who shall suffer any
prejudice by refusal to grant such leave.
While
laying
down
the
aforesaid
proposition of law, the Apex Court has also
noticed the judgment of this court in the
case of Ambrish Kumar Singh (Supra)
wherein this court has held that the court
does not adjudicate rights of the parties
while granting leave to sue under Section
92 of the C.P.C. Paragraphs 16 17, and 18
of the said judgment are extracted hereinbelow:-
40 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. As far as the decisions of this
Court which have been pointed out to us
are concerned, the question as to whether
before granting leave to institute a suit
under S. 92 of the Code, the Court is
required to give an opportunity of being
heard to the proposed defendants did not
arise for determination at all in those
cases. As far as the High Courts are
concerned, they have taken different views
on this question. The legislative history of
S. 92 of the Code indicates that one of the
objects which led to the enactment of the
said section was to enable two or more
persons interested in any trust created for a
public purpose of a charitable or religious
nature should be enabled to file a suit for
the reliefs set out in the said section
without having to join all the beneficiaries
since it would be highly inconvenient and
impracticable for all the beneficiaries to
join in the suit; hence any two or more of
them were given the right to institute a suit
for the reliefs mentioned in the said S. 92 of
the Code. However, it was considered
desirable to prevent a public trust from
being harassed or put to legal expenses by
reckless or frivolous suits being brought
against the trustees and hence, a provision
was made for leave of the court having to
be obtained before the suit is instituted.

17. A plain reading of S. 92 of the
Code indicates that leave of the court 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; unless all the beneficiaries join in
instituting the suit, if such a suit is
instituted without leave, it would not be
maintainable at all. Having in mind, the
objectives underlying S. 92 and the
language thereof, it appears to us that, as a
rule 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 S.
92 to institute a suit. The defendants could
bring to the notice of the court for instance
that the allegations made in the plaint are
frivolous or reckless. Apart from this, they
could, in a given case, point out that the
persons who are applying for leave under
S. 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. The desirability of such
notice being given to the defendants,
however, cannot be regarded as a statutory
requirement to be complied with before
leave under S. 92 can be granted as that
would lead to unnecessary delay and, in a
given case, cause considerable loss to the
public trust. Such a construction of the
provisions of S. 92 of the Code would
render it difficult for the beneficiaries of a
public trust to obtain urgent interim orders
from
the
court
even
though
the
circumstances might warrant such relief
being granted. Keeping in mind these
considerations, in our opinion, although, as
a rule of caution, court should normally
give notice to the defendants before
granting leave under the said section to
institute a suit, the court' is not bound to do
so. If a suit is instituted on the basis of such
leave, granted without notice to the
defendants, the suit would not thereby be
rendered bad in law or non-maintainable.
The grant of leave cannot be regarded as
defeating or even seriously prejudicing any
right of the proposed defendants because it
is always open to them to file an
application for revocation of the leave
which can be considered on merits and
according to law.

18.
We
may
mention
that
although clause (ffa) of S. 104(1) of the
Code provides that an appeal shall lie
against the refusal of grant of leave, that
cannot lead to the conclusion that it is
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
41
obligatory on the part of the court to give
notice to the proposed defendants before
granting leave because an appeal lies only
against the refusal of leave and not against
the grant of leave. Before refusing leave the
proposed plaintiffs are bound to be heard
and it is the plaintiffs and not the
defendants who could be prejudiced by
refusal to grant such leave."

21. In the case of B.S. Adityan and
others
Versus
B.
Ramachandran
Adityan and others (2004) 9 SCC 720,
the Apex Court in paragraph 5 of the
judgment noted as under:-

"5. In the normal course if an
appeal is filed against an order granting
permission to a party to file a suit as falling
under Section 92 CPC, we do not normally
interfere with an order made by the High
Court nor do we think of entertaining a
proceeding of this nature under Article 136
of the Constitution because the order made
thereunder will not determine the rights of
the parties, but only enable a party to
initiate a proceeding."

22. In a recent judgment, in the case of
Ashok Kumar Gupta and another Versus
Sitalaxmi Sahuwala Medical Trust and
others (2020) 4 SCC 321, the Apex Court
has set aside the order of the High Court
refusing to grant leave to the suit. The Apex
Court after noticing a long line judgment, in
paragraph 12 held the three conditions must
exist to invoke jurisdiction under Section 92
of the CPC. Paragraph 12 of the judgment is
extracted herein-below:-

"12.
Three
conditions
are
therefore, required to be satisfied in order
to invoke Section 92 of the Code and to
maintain an action under said Section,
namely, that:

(i) the Trust in question is created
for public purposes of a charitable or
religious nature;

(ii) there is a breach of trust or a
direction of Court is necessary in the
administration of such a Trust; and

(iii) the relief claimed is one or
other of the reliefs as enumerated in said
Section.

Consequently, if any of these
three conditions is not satisfied, the matter
would be outside the scope of said Section
92."

23. In the aforesaid case, the Apex
Court
after
noticing
several
pronouncements in respect of the scope of
Section 92 of C.P.C. found that the suit of
appellant meets all the three requirements
for invoking Section 92 of CPC, and
accordingly, it set aside the order of the
High Court and restored the order of the
trial court granting leave to sue.

24. Now, in the light of principles
enunciated by this Court as well as the
Apex Court regarding grant of leave to suit,
it can be concluded that three conditions
must exist as noted by the Apex Court in
paragraph 12 of the judgment in the case of
Ashok Kumar Gupta (supra) to invoke
Section 92 of CPC. If any of the conditions
noted in paragraph 12 in the case of Ashok
Kumar Gupta (supra) is lacking, Section
92 of CPC cannot be invoked.

25. It is also settled in law that nonissuance
of
notice
to
the
proposed
defendant before granting leave to suit
under Section 92 CPC will not render the
suit invalid since an order granting leave to
suit does not prejudice the rights of the
proposed defendant in the suit. The
proposed defendant has the opportunity to
lead evidence and establish by filing
42 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence in the trial that the suit is based
upon false and vexatious allegations.

26. Now, this Court proceeds to
analyze the legality of the order passed by
the trial court granting leave to sue in the
light of principles laid down by the Apex
Court and this court regarding grant of
leave under Section 92 of C.P.C.

27. At this point, It is pertinent to
mention that the trial court in detail has
considered each condition of the trust deed
as noticed in the earlier part of the
judgment to conclude that the trust is a
public trust. Learned counsel for the
applicants could not demonstrate that the
finding of the trial court in concluding that
trust is a public trust is perverse.

28. The suit under Section 92 of CPC
is of a special nature that presupposes the
existence of public trust of a religious or
charitable character. At this juncture, it
would be relevant to refer to conditions no.
(1), (3), (5) and (6) of the Trust Deed to
gather the intention of the Founder of the
trust, the plain reading of these conditions
unequivocally discloses the intention of the
Founder of the trust that the trust has been
created for the benefit of the public. The
trust deed stipulates that the proceeds of
property of the trust must be utilized for
maintenance of the temple and the
expenses to be incurred for Bhog and Pooja
of the Deity. The income of the trust is to
be utilized for discharging Government
revenue. The trust deed prohibits the
trustees from transferring any property of
the trust and further not to use the trust
property or its proceeds for their benefit.
The trust deed further provides that if any
trustee starts any venture not mentioned in
the trust deed, the account shall be audited
and maintained by the five reputable
persons of the Panchayat of the Kasba
concerning the said venture.

29. Reading of the trust deed does not
indicate that only the family members of
the Founder of trust have the right to
worship the idol, rather the conditions
stipulated in the trust deed in terms of
which trust is to be managed discloses that
none of the stipulations in the trust deed
ascribes any benefit to the members of the
family of the Founder of the trust. Hence, it
can be inferred from the stipulations in the
trust deed that worship of the idol is open
to the public at large unless proved
otherwise by the applicant by leading
evidence during the trial.

30. In this view of the fact, this Court
finds that the prima facie opinion of the
trial court that trust is a public religious
trust is with due application of mind and
based upon the appreciation of stipulations
in the Trust Deed.

31. The applicants will get an
opportunity to disprove the contention of
respondents during the trial that trust is not
a public or charitable trust by leading
evidence. At this stage, the opinion of the
trial court on the plain reading of the plaint
and stipulations of Trust deed that the Trust
is a public trust does not prejudice the
rights of the applicants in any manner.

32. Now, coming to the second
condition for invoking Section 92 of CPC
that there must be a breach of trust or trust
is not being managed properly is present in
the instant case. The allegations in the
plaint extracted above, clearly disclose that
the trust property is not being managed
properly and by following the conditions of
the Trust Deed. The averments in the plaint
extracted above clearly disclose that
10 All. Babu Lal & Ors. Vs. Ravi Narayan & Ors.
43
proceeds of trust are being utilized by the
applicants for their personal use which is
prohibited in the trust deed; that proceeds
of trust property are not utilized for repair
of temple and idol and the temple is in a
dilapidated condition. In this view of the
fact, this Court finds that the second
condition for invoking Section 92 of CPC
is also present. Relief as claimed in the
plaint which has been quoted above also
discloses that same falls within the relief
provided under Section 92 of CPC.
Accordingly, this court believes that all the
conditions which must exist to invoke
Section 92 of the C.P.C. are present in the
present case.

33. Now coming to the judgments
relied upon by learned counsel for the
applicants, this Court is of the opinion that
said judgments do not help the applicant at
the stage of grant of leave to suit under
Section 92 of CPC. In the case of
Dhirendra Singh and others Vs. Dhanai
and others 1983 AIR (All) 2016, this
Court dismissed the first appeal of the
plaintiff against the judgment and order
passed
by
District
Judge,
Faizabad
dismissing the suit under Section 92 of
CPC on the contest. In this case, the suit
was contested by the parties, and issues
were framed and after the parties led
evidence, the trial court found that the
plaintiff has failed to prove that trust is
religious
trust,
and
accordingly,
it
dismissed the suit. The said judgment is not
applicable in the facts of the present case,
as the suit has been dismissed by the trial
court on the contest by the parties which
judgment was affirmed by the High Court
in Appeal.

34. In the case of Sri Satnarayan Ji
Maharaj Virajman Mandir Sat Narayan
Dharamshala and others Versus Rajendra
Prasad Aggarwal and others AIR 1997
ALL 413, the trial court refused to grant
leave to suit on the ground that trust deed
reveals that temple, Dharamshala, and
property
in
question
belong
to
the
defendants and the trust properties were
partitioned between them. Paragraphs 5, 6,
and 7 of the judgment are reproduced
herein-below:

"5. The appellant contended that
the nature of the trust, whether it was for
public
purposes
or
not,
would
be
determined from the fact as to who would
be the beneficiaries of the trust. It was
contended that materials were there before
the court below to infer that the Hindu
public in general were allowed to stay in
the dharamshala and to offer puja in the
temple and to take part in bhajan and
kirtans in the temple and, as such, the
public in general were beneficiaries of the
trust.