# Defendant/ v. Sharda Prasad Dwivedi and another

- **Citation:** (2010) 2 ILRA 645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-21
- **Case number:** Civil Revision No. 245 of 1997
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-sharda-prasad-dwivedi-and-another-41671
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 92-Suit
for Renewal of Trustee-property of
Public Trust Situated in Dist. Agraalready
sold
with
permission
of
Calcutta
High
Court-permission
granted
by
Civil
Court
Agra-heldwithout jurisdiction-as much prior to
institution of suit-property of trust
already sold.

Held: Para 10 & 18

The subject matter of the trust in the
instant case could have been the two
properties one at Calcutta and the
other at Agra. The property at Agra
having been sold much before the
application for leave to institute the
suit was moved only the property at
Calcutta was left with the Trust. Thus,
on the date on which the application
for leave was moved there was no
property of the trust or any part of the
subject matter of the trust at Agra.
Therefore, to my mind, the court at
Agra lacked inherent jurisdiction for
entertaining the suit under Section 92
C.P.C. or to grant leave to to two or
more persons to institute such a suit.

In
view
of
above
facts
and
circumstances, I am of the opinion that
the court below in passing the impugned
judgement and order granting leave to
the plaintiff (applicant)/opposite parties
to institute the suit under Section 92
C.P.C.
acted
completely
without
jurisdiction as admittedly no part of the
subject matter of the trust was situate at
Agra at the relevant time.
Case law discussed:
AIR (31) 1944 PC 39, 1924 PC 95, AIR 1954
SC 340, AIR 1995 SC 2001.

## Text

2 All] Gauri Shankar Saraogi and another V. Sharda Prasad Dwivedi and another
645
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2010

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Revision No. 245 of 1997

Gauri Shankar Saraogi and another

 ...Defendant/Appellant
Versus
Sharda Prasad Dwivedi and another

 ...Plaintiff/Opposite Parties

Counsel for the Revisionist:
Sri R.S. Mishra
Sri K. Shailendra
Sri Ravi Kiran Jain

Counsel for the Opposite Parties:
Sri A.K. Tiwari
Sri B.D. Mandhyan
Sri R.K. Porwal
Sri Satish Mandhyan

Code of Civil Procedure-Section 92-Suit
for Renewal of Trustee-property of
Public Trust Situated in Dist. Agraalready
sold
with
permission
of
Calcutta
High
Court-permission
granted
by
Civil
Court
Agra-heldwithout jurisdiction-as much prior to
institution of suit-property of trust
already sold.

Held: Para 10 & 18

The subject matter of the trust in the
instant case could have been the two
properties one at Calcutta and the
other at Agra. The property at Agra
having been sold much before the
application for leave to institute the
suit was moved only the property at
Calcutta was left with the Trust. Thus,
on the date on which the application
for leave was moved there was no
property of the trust or any part of the
subject matter of the trust at Agra.
Therefore, to my mind, the court at
Agra lacked inherent jurisdiction for
entertaining the suit under Section 92
C.P.C. or to grant leave to to two or
more persons to institute such a suit.

In
view
of
above
facts
and
circumstances, I am of the opinion that
the court below in passing the impugned
judgement and order granting leave to
the plaintiff (applicant)/opposite parties
to institute the suit under Section 92
C.P.C.
acted
completely
without
jurisdiction as admittedly no part of the
subject matter of the trust was situate at
Agra at the relevant time.
Case law discussed:
AIR (31) 1944 PC 39, 1924 PC 95, AIR 1954
SC 340, AIR 1995 SC 2001.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Ram Kishan Dass, Har Kishan
Das Saraogi is a public trust of religious
and charitable nature created for the
Hindu public. The said trust owned
properties mentioned in Schedules 'A'
and 'B' of the proposed plaint i.e. house
no.165,
167
situate
at
M.G.Road,
Clacutta in Schedule 'A' and house
no.1/67 Peepal Mandi, Agra in Schedule
'B'.

2. The two applicants/opposite
parties both residents of Agra applied
for leave of the court at Agra to institute
a suit under Section 92 C.P.C. for
removal of the existing trusties two in
number, both residents of Calcutta and
for appointment of new trusties as well
as for directing rendering of accounts of
the trust. The application for grant of
leave to file proposed plaint was
opposed by the defendant/revisionists
herein. One of the objection was that the
property at Agra is no more in existence
as it has been sold under the orders of
the
Calcutta
High
Court
dated
646 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
28.4.1988, therefore, the application for
leave is not maintainable.

3. The Additional District Judge,
Agra vide judgment and order dated
12.8.1997 allowed the application and
granted permission to file the suit under
Section 92 C.P.C. Aggrieved by the
aforesaid order, the defendants have
preferred this civil revision under Section
115 C.P.C.

4. I have heard Sri Ravi Kiran Jain,
Senior Advocate assisted by Sri Kshitij
Shailendra for the defendant/revisionists
and Sri B.D.Mandhyan, Senior Advocate
assisted by Sri Tarun Gaur for the
plaintiff (applicant)/opposite parties.

5. The basic argument of Sri Jain is
that the impugned judgment and order is
without jurisdiction. The Court at Agra
had no jurisdiction to grant leave for
institution of suit under Section 92 C.P.C.
as no part of the property of the trust was
situated in Agra at the relevant time.

6. Sri Mandhyan has countered the
above argument by submitting that in fact
one of the properties of the trust was at
Agra and the illegal sale of the same
would not affect the jurisdiction of the
Court. He has further submitted that
though no relief in respect of the property
sold has been claimed in the proposed
suit, nonetheless the action of the trustees
in its sale was determintal to the trust as
well as public at large therefore, a suit
under Section 92 C.P.C. with the leave of
the Court is maintainable.

7. Section 92 C.P.C. provides that
where in a trust created for public
charitable or religious nature there is any
breach of such trust, the Advocate
General or two or more persons having an
interest in the trust with the leave of the
court may institute a suit for a decree for
the purposes specified therein including
that of removal and appointment of
trustees and rendering of the accounts.
Thus, from the plain language of the
aforesaid provision it is apparent that two
persons having interest in the trust have a
right to maintain a suit under Section 92
C.P.C. with the leave of the Court.
However, the moot question which arises
for consideration is as to which court is
empowered to grant leave for institution
of such suit or as to before which court
such a suit would be maintainable.

8. In order to answer the above
question, it would again be beneficial to
refer to the provision of Section 92 C.P.C.
itself which also provides the forum
where such a suit is to be instituted. It lays
down that a suit may be instituted 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.
Thus, such a suit can be instituted either:

(1) in the competent court of original
jurisdiction; or

(2) in any other court empowered in
that behalf by the State Government;

provided that such a court ought to
be one within whose local limits of
jurisdiction the whole or any part of
subject matter of the trust is situate.

9. This above second part of Section
92 C.P.C. is most important and relevant
for the purposes of determining the
2 All] Gauri Shankar Saraogi and another V. Sharda Prasad Dwivedi and another
647
jurisdiction of the civil court where a suit
is to be instituted. It has to be a court
where whole or any part of the subject
matter of the trust is situate. This part
refers and qualifies both the courts
mentioned in the first part.

10. The subject matter of the trust in
the instant case could have been the two
properties one at Calcutta and the other at
Agra. The property at Agra having been
sold much before the application for leave
to institute the suit was moved only the
property at Calcutta was left with the
Trust. Thus, on the date on which the
application for leave was moved there
was no property of the trust or any part of
the subject matter of the trust at Agra.
Therefore, to my mind, the court at Agra
lacked
inherent
jurisdiction
for
entertaining the suit under Section 92
C.P.C. or to grant leave to to two or more
persons to institute such a suit.

11. It is also relevant to note that the
trustees against whom the suit is being
proposed to be instituted are also not
residing within the jurisdiction of the
Court at Agra.

12. The view taken by me finds
support from a decision of the Privy
Council Bilasrai Joharmal and another
Vs.
Shivnarayan
Sarupchand
and
others AIR (31) 1944 PC 39 wherein the
Lordships observed that the Court will not
take upon itself the task to interfere with
the administration of a charity when the
charity has to be conducted in a different
land outside the courts jurisdiction where
the court is not in a position to supervise
its administration effectively.

13. Sri Mandhyan had made a feeble
attempt to defend the impugned judgment
and order by saying that no such specific
plea with regard to the jurisdiction was
raised by the defendant/ revisionists in the
court below and, therefore they cannot be
permitted to raise it for the first time in
the revision.

14. I am not at all impressed by the
aforesaid submission. First, for the reason
that there is a specific reference of such a
plea in the impugned judgement itself.
The impugned judgment refers to it in
paragraph 3 as well as in paragraph 10
wherein it is mentioned that the property
at Agra has been sold with the permission
of the High Court at Calcutta and,
therefore, the plaintiff/applicants have no
right to file application under Section 92
C.P.C. Secondly where the question of
jurisdiction goes to the very root of the
matter, the plea of jurisdiction even if it
has not been specifically raised in the
court below, it can always be permitted to
be raised in appeal/revision or even at any
subsequent stage including that execution
of the decree.

15. Their Lordships of the Privy
Council in Ram Lal Hargopal Vs.
Kishanchandra and others 1924 PC 95
ruled that an objection to the jurisdiction,
however late in the day may be raised, if
on the facts admitted or proved it is
manifest that there is a defect of
jurisdiction.

16. Again in the case Kiran Singh
and others Vs. Chaman Paswan and
others AIR 1954 SC 340 three Hon'ble
Judges of the Supreme Court went on to
observe as under:

"It is a fundamental principle that a
decree passed by a Court without
jurisdiction is a nullity and, that its
648 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
invalidity could be set up whenever and
wherever it is sought to be enforced or
relied upon, even at the stage of execution
and even in collateral proceedings. A
defect of jurisdiction, whether it is
pecuniary or territorial, or whether it is in
respect of the subject-matter of the action,
strikes at the very authority of the Court to
pass any decree, and such a defect cannot
be cured even by consent of parties."

17. A similar view has been
expressed by the Supreme Court in Most.
Re. P.M.A. and others Vs. Moran Mar
Marthoma and another AIR 1995 SC
2001 wherein the Court observed that plea
of absence of jurisdiction of civil court can
be raised and entertained at any stage.

18. In view of above facts and
circumstances, I am of the opinion that the
court below in passing the impugned
judgement and order granting leave to the
plaintiff (applicant)/opposite parties to
institute the suit under Section 92 C.P.C.
acted completely without jurisdiction as
admittedly no part of the subject matter of
the trust was situate at Agra at the relevant
time.

19. Accordingly, the impugned
judgement and order dated 12.8.1997
passed by the Ist Additional District Judge,
Agra in Misc. Case No.417 of 1994
between Sharda Prasad Dwivedi and
another and Gauri Shankar Saraogi and
another suffers with jurisdictional error and
is set aside. Consequently, the application
for leave to institute the suit stands
rejected.

20. This revision as such is allowed.

No order as to costs.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2010

BEFORE
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Review Petition No. 264 OF 2006

Sant Bux Singh

 ...Petitioner
Versus
Deputy Director of Consolidation and
another

 ...Respondent

Counsel for the Petitioner:
S.K. Mehrotra

Constitution of India Art.226- Review
Petition-Writ
Petition-Challenging
the
validity of order passed by consolidation
authorities-D.D.C. Without discussion of
facts and evidence-without application
of mind-without recording any reason
passed
crypic
order-petition
also
dismissed-order passed by writ court
recalled-Review allowed.

Held: Para 10

Learned counsel further argued that
court of Deputy Director of Consolidation
is
final
court
in
the
matter
of
Consolidation
proceedings.
When
a
revision is presented before the Deputy
Director of Consolidation, it is expected
from the court that it would take notice
of the case of the parties and also
evidence adduced by them and after
taking into consideration the findings of
the Courts below by giving his own
finding and reason in brief on the points
in dispute, the final order will be passed.
Learned
counsel
for
the
petitioner
argued that if we go through the
judgment delivered by Deputy Director
of Consolidation, we will find only in last
10 lines conclusion has been drawn
without discussing evidence in brief that
lower
courts
have
taken
into
consideration
the
facts
and
circumstances of the case and evidence
available on the record and scrutinized