# P.D. Tiwari, Chela Sri R. Das and others v. Lakhan Singh and others

- **Citation:** (2001) 1 ILRA 193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-d-tiwari-chela-sri-r-das-and-others-v-lakhan-singh-and-others-39697
- **Pages:** 6

## Text

1All] P.D. Tiwari, Chela Sri R. Das and others V. Lakhan Singh and others 193
For the reasons mentioned above, we
find no merit in the writ petition, which is
hereby
dismissed
summarily
at
the
admission stage.

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By the Court

1. In this case counter and rejoinder
affidavits were filed by the parties. As
desired by the learned counsel for the
parties, case was heard and is being
decided finally at this stage.

2. The instant revision arises out of
the proceedings under section 92, C.P.C.
and is directed against the judgment and
order passed by the District Judge, Jhansi,
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
194
dated 4.12.1992, granted permission to
the contesting respondents to institute a
suit under Section 92, C.P.C., with respect
to the temple, known as, Sri Kalyan Rai Ji
Virajman Mandir, Madhopura, village
Bhasneh,
Pargana
Garautha,
district
Jhansi, for short 'property in dispute'. The
opposite parties filed an application under
Section 92, C.P.C. praying for granting
permission to file the suit for constitution
of a trust committee and to frame a
scheme of administration for managing
the trust property. It was claimed that the
said property was a public trust, which
was being mismanaged, therefore, it was
necessary
to
frame
a
scheme
of
administration for proper administration
of the trust property. On receipt of the
notices from the court of the District
Judge, applicants filed their objection
pleading that the trust in question was not
a public trust, that it was an ancestral and
personal temple established by Bhagwan
Das who appointed Mahant Ram Das
Chela as Manager/Sarvarakar of the
properties of the temple. He also
executed
and
registered
will
dated
6.9.1983 in favour of Chela Prabhu
Dayal. It was contended that the
application filed under Section 92, C.P.C.
therefore, was liable to be dismissed.

3. It is evident from the material on
record that the suit, for the above
mentioned
relief,
was
filed
and
simultaneously application under Section
92, C.P.C. was also filed. The applicants
are alleged to have filed voluminous
documentary evidence in support of their
case. The court below, thereafter, passed
the following order.

"4.12.1999
Case called out. The
parties' counsels are present

3-A is an application for permission
under Section 92, C.P.C. to file the suit in
respect of the property of the trust created
for the religious purpose. The plots
mentioned in the list 4-A-I are said to be
the property of the deity Kalyanji
Maharaj, situated in village Madhopura.
The revenue records have been filed and
the entries are shown to be in the name of
the deity. Subsequently the efforts are
shown to have been made to convert - the
property in the private names of opposite
parties Udai Narain Chela Prabhu Dayal,
Ramjiwan and Girjanandan. Since the
property is shown to be that of deity and
efforts have been made to privatise and
take it by usurpation, under the aforesaid
circumstances it appears quite justifiable
to give permission under Section 92,
C.P.C. This finding will not however
prejudice the final disposal of the suit
between the parties.

ORDER

Application 3-A is hereby allowed
Prayer for permission to file the suit
Under Section 92, C.P.C. is granted.
District Judge,
Jhansi."

4. Challenging the validity of the
above noted order, as stated above, the
present revision has EHHQ filed by Prabhu
Dayal Tiwari and others.

5. Learned counsel for the applicants
vehemently urged that permission to
institute a suit under section 92, C.P.C.,
was
a
condition
precedent.

The
respondents have acted illegally in filing
the suit and simultaneously applying for
permission under Section 92, C.P.C. The
court below is also stated to have acted
illegally and in excess of its jurisdiction
for entertaining the said application and
1All] P.D. Tiwari, Chela Sri R. Das and others V. Lakhan Singh and others 195
allowing the same. It was also urged that
the order passed by the court below is a
non -speaking order inasmuch as the
court
below
failed
to
take
into
consideration and examine critically the
documentary
evidence
filed
by
the
applicants
and
acted
illegally
and
arbitrarily in allowing the same. The
impugned order was, thus, liable to be
quashed. On the other hand, learned
counsel appearing for the contesting
respondents submitted that the order
impugned in the present revision was an
administrative order, which was not
revisable under Section 115, C.P.C. The
revision
as
framed
and filed, was
therefore, liable to be dismissed. It was
submitted that the court below has rightly
granted permission to institute the suit
under the facts and circumstances of the
present case. The revision filed by the
applicants was, therefore, liable to be
dismissed. It was also urged that the
order under challenge was appealable
under Order 43 Rule I read with Section
104, C.P.C. Learned counsel for the
parties in support of their contentions also
referred and relied upon certain decisions
of this Court as well as the Supreme
Court, which I will deal with hereafter at
appropriate place.

6. I have considered the submissions
made by the learned counsel for the
parties and also carefully perused the
record.

7. The impugned order dated
4.12.1999 was passed by the District
Judge, Jhansi purported to be in exercise
of power under Section 92, C.P.C. Section
92, C.P.C. reads as under :

(Only relevant quoted)

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

8. A reading of the aforesaid Section
reveals that leave of the court is a
condition precedent for institution of a
suit to obtain a decree of the nature
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
196
enumerated in clause (a) to (h) of subsection (1) of Section 92, C.P.C. In the
present case, application for leave is
stated to have been filed alongwith the
plaint, which was legally not permissible.
The learned District Judge, Jhansi acted
illegally in entertaining the plaint as well
as
the
application
for
leave
simultaneously.

By
order
dated
19.5.2000, however, proceedings of the
above noted suit were stayed. The interim
order granted by this Court remained
operative till date. The questions which
arise for consideration in the present case
are as to whether present revision was
legally
maintainable,
whether
the
impugned order was appealable and as to
whether the impugned order passed by the
court below was a valid order or not.

9. So far as maintainability of the
revision or appeal is concerned, Order 43
Rule 1, C.P.C., provides that the appeal
shall lie under Section 104, C.P.C., from
the orders enumerated under Rule (1) of
the said Order. Clause (ff-a) of sub-rule
(1) of Section 104, C.P.C. reads as under:-

"104.(1).(ffa) an order under section 91
or section 92 refusing leave to institute a
suit of the nature referred to in section 91
or section 92, as the case may be;"

Section
91
deals
with
public
nuisance
and
other
wrongful
acts
affecting the public while Section 92
deals with public charities.

10. From a reading of the aforesaid
Rule, it is evident that the appeal lies from
an order refusing leave to institute a suit
of the nature referred to in Section 92,
C.P.C. and not from an order granting the
leave. In the instant case, therefore, the
order was not appealable and inasmuch as
the application 3-A for permission to file
a suit under Section 92, C.P.C., was
granted by the District Judge by means of
the impugned order. In Lilanand Thakur
Pagal Baba Trust Prabandh Samiti Vs.
Thakur
Radha
Govindji
Maharaj
Vrindaban and others, reported in 2000(3)
AWC 2064, learned Single Judge dealing
with the question as to whether order
passed under the said Section granting
leave was revisable or not was pleased to
hold as under:

"Grant of leave to institute a suit does not
amount to case decided within the
meaning of the term used under Section
115, C.P.C. It was subject to revocation
of objection/application filed by the
opposite party, therefore, against an order
granting leave, a revision under Section
115, C.P.C. was not maintainable."

11. In R.M. Narayana Chettiar and
another Vs. N.Lakshmanan Chettiar and
others, reported in (1999) 1 S.C.C. 48, the
Supreme Court took the view that before
institution of the suit for the relief in the
nature enumerated under Section 92,
C.P.C., leave must be obtained from the
Court as it imposes certain check on filing
of frivolous suits. It was held that leave
could be granted without any notice to the
respondents as it can be set aside on the
application by party aggrieved. The Apex
Court has upheld the validity of the said
order challenged, subject to the condition
only that the Court while granting
permission under Section 92 C.P.C., must
afford opportunity of hearing and to file
objection, to the contesting opposite
parties and to record reasons for granting
or refusing to grant permission. Even in
Mahanth Gurmukh Das Vs. Bhupal Singh
and others, reported in 1987 ALJ 369,
learned Single Judge was pleased to hold
1All] P.D. Tiwari, Chela Sri R. Das and others V. Lakhan Singh and others 197
that the Court should apply its mind to the
question on the basis of the material on
record and come to a conclusion that
prima facie though it may be, on the
question whether person seeking its leave
can be treated to be a person having an
interest in the trust. The insistence was
given to record reasons before an order
either granting or refusing to grant
permission is passed by the District Judge
and revision filed in this Court was
disposed of with certain directions to
record reasons. Now coming back to the
case of R.M. Narayana Chettiar, referred
to above, the Apex Court has specifically
ruled that obtaining permission before
institution of a suit for the relief of the
nature mentioned in Section 92 C.P.C.,
obtaining
permission
is
a
condition
precedent, the Court before granting such
permission should give notice to the
defendant,
as
a
rule
of
caution.
According to it, non-issuance of a notice
would not render the suit bad inasmuch as
the defendants can any time apply for
revocation of the leave. It was observed
as under:

"The legislative history of Section 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 relief's 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 the suit; hence any
two or more of them were given the right
to institute a suit for the relief's
mentioned in the said Section 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."

It was ultimately ruled as under:-

"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 not 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."

12. In the instant case, as stated
above, the grievance of the applicants, in
substance, is that they have filed objection
and as many as 52 documents in support
of their cases, but the court below acted
wholly
illegally
and
arbitrarily
and
completely ignoring the said documents
and passed an order, which is bereft of
reasons. The same is, therefore, liable to
be set aside.

13.

Under
the
facts
and
circumstances stated above and in the
light of the law laid down of this Court
and other Courts as well as the Apex
Court, the District Judge, in exercise of
power under Section 92, C.P.C., must act
judiciously, if objections are filed before
or after the order under Section 92 C.P.C.,
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
198
is passed granting or refusing the leave to
file a suit he is bound to take into
consideration the documentary or oral
evidence on record and examine the same
critically and thereafter pass the order. In
the instant case, court below did not take
the evidence filed by the applicants into
consideration and did not record cogent
reasons, therefore, the impugned order is
liable to be set aside.

14. This revision succeeds and is
allowed. The order dated 4.12.1992 is
hereby set aside. The case is, however,
sent back to the court below for decision
in the light of the observations made
above expeditiously within a period of
two months from the date a certified copy
of this order is communicated to the court
below. It is further provided that the case
shall be decided by a Judge other than the
Judge who has passed the impugned
order. The District Judge, Jhansi shall
pass appropriate orders in this regard in
exercise of power under Section 24,
C.P.C.

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