Code of Civil Procedure, 1908 –s.92 – Case of the plaintiffsrespondents was that father of the appellant-defendant was Mohtmim of the Gurudwara and was looking after the same– According to the plaintiffs, a committee for manning the Gurudwara was set up and it wanted a scheme to be framed in terms of s.92 for proper management of the Gurudwara in question – Case of the appellant inter alia was that the Gurudwara was private property, earlier owned by his father and now owned by him and the suit u/s.92 was not maintainable – Application was filed seeking leave of the Court to institute the suit u/s.92, but no orders were passed – Plea of the appellant is that since no orders were passed on the application for grant of leave, the entire proceedings in the suit are vitiated and the orders passed therein and subsequently in the appellate proceedings need to be set aside – Held: s.92 clearly indicates that either a suit under the provision can be filed by the Advocate General or by two or more persons having interest in the trust and having obtained the leave of the Court – In every suit filed u/s.92, the grant of leave is a necessary pre-requisite before the suit can be said to be properly instituted – In the present case there is an unusual situation where the appellant contested the suit without raising the plea that leave of the Court was not granted and submitted to the jurisdiction of the Trial Court without any objection – Appellant was aware of such provision with regard to grant of leave because in an earlier suit filed against the appellant he took that objection and the suit was dismissed on this ground – However, in the second round of litigation, the appellant did not take this defence – Further, case of the appellant himself was that his father was Mohtmim of the Gurudwara – A Mohtmim is in the nature of Shebait/Manager of the Gurudwara and cannot be the owner of the Gurudwara – Admittedly, about
14 kanals of land was donated by the villagers to the Gurudwara therefore, it is a public Gurudwara – Though legally the appellant is right that the suit could not have been instituted without taking leave yet, in the peculiar facts and circumstances of the case, the appeal is not being continued – Present case decided in peculiar facts and circumstances, not be treated as precedent. Dismissing the appeal, the Court
HELD:1.1 A bare perusal of Section 92, CPC clearly indicates that either a suit under the provision can be filed by the Advocate General or by two or more persons having an interest in the trust and having obtained the leave of the Court. Grant of leave is a necessary pre-requisite before a suit under Section 92, CPC can be entertained. In an application filed under Section 92, CPC seeking leave to institute a suit, normally a notice should be issued to the other side before passing orders thereupon. However, that 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. In every suit filed under Section 92, CPC, the grant of leave is necessary before the suit can be said to be properly instituted. There is 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 submitted to the jurisdiction of the Trial Court without any demur and objection. The appellant was aware of such a provision with regard to grant of leave because in an earlier suit filed against the appellant he had taken an objection that leave had not been granted and that suit was dismissed on this short ground. However, in the second round of litigation, the appellant unfortunately chose not to take this defence. The courts below have come to a finding of fact that the Gurudwara is a public place of worship. In fact, the case of the appellant/ defendant himself was that his father was Mohtmim of the Gurudwara. A Mohtmim is in the nature of Shebait or Manager of the Gurudwara and cannot be the owner of the Gurudwara. 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. The Trial Court has framed a proper scheme for management 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. Keeping in view the aforesaid facts, though legally the appellant is right that the suit could not have been instituted without taking leave yet in the peculiar facts and circumstances of the case, the Court is not inclined to continue this appeal. This case has been decided in peculiar facts and circumstances and shall therefore not be treated as precedent. [Paras 5-11] [634-G-H; 636-A-C-F-H; 636A-E]
R.M. Narayana Chettiar & Another. v. L. Lakshmanan Chettiar & Others. (1991) 1 SCC 48 : [1990] 2 Suppl. SCR 266 – relied on.
Vidyodaya Trust v. Mohan Prasad R. & Ors. (2008) 4 SCC 115 : [2008] 3 SCR 569 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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