Bhupinder Singh v. Joginder Singh (d) by Lrs. & Ors.

DEEPAK GUPTA, J. 1. The respondents filed a suit in respect of Gurudwara in village Pilkhani Tehsil and District Ambala. It was alleged that the Gurudwara is a place of public worship where free access to the public is allowed. It was further alleged that father of Bhupinder Singh, defendan t No.2 (the appellant herein) was a Mohtmim of the Gurudwara and l ooking after the same. BHUPINDER SINGH v. JOGINDER SINGH (D) BY LRS. & ORS. 2. According to the plaintiffs, a committee for mann ing the Gurudwara was set up in which plaintiff No.1 was the President, plaintiff No.2 was the Secretary and plaintiff Nos.3 and 4 were members of the Managing Committee. It is alleged that after the de ath of Tarlok Singh, his son was not managing the Gurudwara properly and therefore the Committee wanted a scheme to be framed in terms of Section 92 of the Code of Civil Procedure, 1908, (CPC) for proper mana gement of the Gurudwara in question. 3. The case of the appellant herein was that the Gurudwara was a private property earlier owned by his father and now owned by him. It was alleged that public has no right to access the G urudwara and the suit under Section 92 was not maintainable. 4. Unfortunately, though an application was filed for seeking leave of the Court to institute the suit under Section 92, CPC, no orders appear to have been passed on the said application. Sectio n 92, CPC reads as follows: “92. Public charities.- (1) In the case of any alleged breach of any expre ss or constructive trust created for public purposes of a charitab le or religious nature, or where the direction of the Court is dee med 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 sui t, 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 si tuate to obtain a decree- --------- (g) settling a scheme. . . . .” 5. A bare perusal of Section 92, CPC clearly indicates that either a suit under the provision can be filed by the Advocate Genera l or by two or more persons having an interest in the trust and having obtained the leave of the Court. The contention raised on behalf of the appellant herein is that since no orders were passed on the applicati on for grant of leave, the entire proceedings in the suit are vitiate d and the orders 635 passed in the suit and subsequently in the appellate proceed ings need to be set aside. 6. As far as the legal issue is concerned, there can be no manner of doubt that grant of leave is a necessary pre-requisite be fore a suit under Section 92, CPC can be entertained. This Court has held in a number of judgments that in an application filed under Section 92, CPC seeking leave to institute a suit, normally a notice sho uld be issued to the other side before passing orders thereupon. However, tha t is not absolutely necessary and in an emergent situation, the Court can grant leave even without issuing notice to the other side but then the respondent has a right to file an application for revocation of the leave granted. Reference in this behalf is made to R.M. Narayana Chettiar & Another . v. L. Lakshmanan Chettiar & Others. [(1991) 1 SCC 48], Vidyodaya Trust v. Mohan Prasad R. & Ors . [(2008) 4 SCC 115]. In R.M. Narayana’s case (supra), this Court held as follows:- “17. A plain reading of Section 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 r eliefs 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 a all. Having in mind the objectives underlying Section 92 and the language thereof, it appears to us that, a s 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 sui t. …” 7. Learned counsel for the appellant urges that in view of la w laid down by this Court, it is imperative that leave must b e granted before the suit is instituted. There is no quarrel with this proposition and we are not inclined to hold, as the High Court did, that lea ve can be presumed to have been granted. There can be no presumption of this kind in a case of this nature. We are clearly of the view that in every suit filed under Section 92, CPC, the grant of leave is necess ary before the suit can be said to be properly instituted. 8. Having held so, we are faced with an unusual situation where the defendant contested the suit without raising the plea that leave of the Court has not been granted. Not only that, both sides led evidence and the matter was decided on merits, the appellant herein submitted to the jurisdiction of the Trial Court without any demur and objection. BHUPINDER SINGH v. JOGINDER SINGH (D) BY LRS. & ORS. [DEEPAK GUPTA, J.] It is also clear that the appellant was aware of such a provision with regard to grant of leave because in an earlier suit fil ed against the appellant he had taken an objection that leave had not been gra nted and that suit was dismissed on this short ground. However, in the second round of litigation, the appellant unfortunately chose not to ta ke this defence. 9. The courts below have come to a finding of fact th at the Gurudwara is a public place of worship. In fact, th e case of the appellant/ defendant himself was that his father was Mohtmi m of the Gurudwara. A Mohtmim is in the nature of Shebait or Manager of the Gurudwara and cannot be the owner of the Gurudwara. It has al so come on record that about 14 kanals of land was donated by the villagers to the Gurudwara which fact has been admitted by the appellant in his cross examination. Therefore, it is a public Gurudwara. We a lso find that the Trial Court has framed a proper scheme for manag ement of the Gurudwara in which an elected body has to take care of the management of the Gurudwara and this elected body will consist of people belonging to the village. 10. Keeping in view the aforesaid facts, though legal ly the appellant is right that the suit could not have been institute d without taking leave yet in the peculiar facts and circumstances of the case, we are not inclined to continue this appeal. 11. The civil appeal is dismissed. This case has been decided in peculiar facts and circumstances and shall therefore not be treated as precedent. Divya Pandey Appeal dismissed.