Supreme Court of India
BHUPINDER SINGH versus JOGINDER SINGH (D) BY LRS. & ORS. on 18 September 2019
[2019] 15 S.C.R. 631
BHUPINDER SINGH
v.
JOGINDER SINGH (D) BY LRS. & ORS.
(Civil Appeal No. 6067 of 2010)
SEPTEMBER 18, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 –s.92 – Case of the plaintiffs-respondents was that father of the appellant-defendant wasMohtmim of the Gurudwara and was looking after the same–According to the plaintiffs, a committee for manning theGurudwara was set up and it wanted a scheme to be framed interms of s.92 for proper management of the Gurudwara in question– Case of the appellant inter alia was that the Gurudwara wasprivate property, earlier owned by his father and now owned byhim and the suit u/s.92 was not maintainable – Application wasfiled seeking leave of the Court to institute the suit u/s.92, but noorders were passed – Plea of the appellant is that since no orderswere passed on the application for grant of leave, the entireproceedings in the suit are vitiated and the orders passed thereinand subsequently in the appellate proceedings need to be set aside– Held: s.92 clearly indicates that either a suit under the provisioncan be filed by the Advocate General or by two or more personshaving interest in the trust and having obtained the leave of theCourt – In every suit filed u/s.92, the grant of leave is a necessarypre-requisite before the suit can be said to be properly instituted –In the present case there is an unusual situation where the appellantcontested the suit without raising the plea that leave of the Courtwas not granted and submitted to the jurisdiction of the Trial Courtwithout any objection – Appellant was aware of such provision withregard to grant of leave because in an earlier suit filed againstthe appellant he took that objection and the suit was dismissed onthis ground – However, in the second round of litigation, theappellant did not take this defence – Further, case of the appellanthimself was that his father was Mohtmim of the Gurudwara – AMohtmim is in the nature of Shebait/Manager of the Gurudwaraand cannot be the owner of the Gurudwara – Admittedly, about14 kanals of land was donated by the villagers to the Gurudwara
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Atherefore, it is a public Gurudwara – Though legally the appellantis right that the suit could not have been instituted without takingleave yet, in the peculiar facts and circumstances of the case, theappeal is not being continued – Present case decided in peculiarfacts and circumstances, not be treated as precedent.
BDismissing the appeal, the Court
HELD:1.1 A bare perusal of Section 92, CPC clearlyindicates that either a suit under the provision can be filed bythe Advocate General or by two or more persons having aninterest in the trust and having obtained the leave of the Court.
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Conclusion
CGrant of leave is a necessary pre-requisite before a suit underSection 92, CPC can be entertained. In an application filed underSection 92, CPC seeking leave to institute a suit, normally anotice should be issued to the other side before passing ordersthereupon. However, that is not absolutely necessary and in anemergent situation, the Court can grant leave even withoutDissuing notice to the other side but then the respondent has aright to file an application for revocation of the leave granted.In every suit filed under Section 92, CPC, the grant of leave isnecessary before the suit can be said to be properly instituted.There is an unusual situation where the defendant contested theEsuit without raising the plea that leave of the Court has not beengranted. Not only that, both sides led evidence and the matterwas decided on merits, the appellant submitted to the jurisdictionof the Trial Court without any demur and objection. Theappellant was aware of such a provision with regard to grant ofleave because in an earlier suit filed against the appellant he hadFtaken an objection that leave had not been granted and that suitwas dismissed on this short ground. However, in the secondround of litigation, the appellant unfortunately chose not to takethis defence. The courts below have come to a finding of factthat the Gurudwara is a public place of worship. In fact, the caseof the appellant/ defendant himself was that his father wasGMohtmim of the Gurudwara. A Mohtmim is in the nature ofShebait or Manager of the Gurudwara and cannot be the ownerof the Gurudwara. About 14 kanals of land was donated by thevillagers to the Gurudwara which fact has been admitted by theappellant in his cross examination. Therefore, it is a publicHGurudwara. The Trial Court has framed a proper scheme for management of the Gurudwara in which an elected body has totake care of the management of the Gurudwara and this electedbody will consist of people belonging to the village. Keeping inview the aforesaid facts, though legally the appellant is right thatthe suit could not have been instituted without taking leave yetin the peculiar facts and circumstances of the case, the Court isnot inclined to continue this appeal. This case has been decidedin peculiar facts and circumstances and shall therefore not betreated as precedent. [Paras 5-11] [634-G-H; 636-A-C-F-H; 636-A-E]
R.M. Narayana Chettiar & Another. v. L. LakshmananChettiar & Others. (1991) 1 SCC 48 : [1990] 2 Suppl.
SCR 266 – relied on.
Vidyodaya Trust v. Mohan Prasad R. & Ors. (2008) 4SCC 115 : [2008] 3 SCR 569 – referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6067of 2010.
From the Judgment and Order dated 23.07.2009 of the HighCourt of Punjab and Haryana at Chandigarh in R.S.A. No. 3598 of1998.
Shish Pal Laler, Sonit Sinhmar (for Ravi Panwar), Advs. for theAppellant.
Manoj Prasad, Sr. Adv., Harinder Mohan Singh, Ms. Purnima,Ashutosh Dubey, Ms. Sabana, Vinod Mehta, Advs. for the Respondents.
The Judgment of the Court was delivered by DEEPAK GUPTA, J.
1. The respondents filed a suit in respect of Gurudwara in villagePilkhani Tehsil and District Ambala. It was alleged that the Gurudwarais a place of public worship where free access to the public is allowed.It was further alleged that father of Bhupinder Singh, defendant No.2(the appellant herein) was a Mohtmim of the Gurudwara and lookingafter the same.
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A2. According to the plaintiffs, a committee for manning theGurudwara was set up in which plaintiff No.1 was the President, plaintiffNo.2 was the Secretary and plaintiff Nos.3 and 4 were members ofthe Managing Committee. It is alleged that after the death of TarlokSingh, his son was not managing the Gurudwara properly and thereforethe Committee wanted a scheme to be framed in terms of Section 92Bof the Code of Civil Procedure, 1908, (CPC) for proper managementof the Gurudwara in question.
3. The case of the appellant herein was that the Gurudwara wasa private property earlier owned by his father and now owned by him.It was alleged that public has no right to access the Gurudwara andCthe suit under Section 92 was not maintainable.
4. Unfortunately, though an application was filed for seeking leaveof the Court to institute the suit under Section 92, CPC, no ordersappear to have been passed on the said application. Section 92, CPCreads as follows:D
“92. Public charities.-
(1) In the case of any alleged breach of any express orconstructive trust created for public purposes of a charitable orreligious nature, or where the direction of the Court is deemedEnecessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trustand having obtained the leave of the Court may institute a suit,whether contentious or not, in the principal Civil Court of originaljurisdiction or in any other Court empowered in that behalf bythe State Government within the local limits of whose jurisdictionFthe whole or any part of the subject-matter of the trust is situateto obtain a decree- E
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(g) settling a scheme. . . . .”
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5. A bare perusal of Section 92, CPC clearly indicates that eithera suit under the provision can be filed by the Advocate General or bytwo or more persons having an interest in the trust and having obtainedthe leave of the Court. The contention raised on behalf of the appellantherein is that since no orders were passed on the application for grantHof leave, the entire proceedings in the suit are vitiated and the orders passed in the suit and subsequently in the appellate proceedings needto be set aside.
6. As far as the legal issue is concerned, there can be no mannerof doubt that grant of leave is a necessary pre-requisite before a suitunder Section 92, CPC can be entertained. This Court has held in anumber of judgments that in an application filed under Section 92, CPCseeking leave to institute a suit, normally a notice should be issued tothe other side before passing orders thereupon. However, that is notabsolutely necessary and in an emergent situation, the Court can grantleave even without issuing notice to the other side but then therespondent has a right to file an application for revocation of the leavegranted. Reference in this behalf is made to R.M. Narayana Chettiar& Another. v. L. Lakshmanan Chettiar & Others. [(1991) 1 SCC48], Vidyodaya Trust v. Mohan Prasad R. & Ors. [(2008) 4 SCC115]. In R.M. Narayana’s case (supra), this Court held as follows:-
“17. A plain reading of Section 92 of the Code indicates thatleave of the court is a pre-condition or a condition precedent forthe institution of a suit against a public trust for the reliefs setout in the said section; unless all the beneficiaries join in institutingthe suit, if such a suit is instituted without leave, it would not bemaintainable a all. Having in mind the objectives underlyingSection 92 and the language thereof, it appears to us that, as arule of caution, the court should normally, unless it is impracticableor inconvenient to do so, give a notice to the proposed defendantsbefore granting leave under Section 92 to institute a suit. …”
7. Learned counsel for the appellant urges that in view of lawlaid down by this Court, it is imperative that leave must be grantedbefore the suit is instituted. There is no quarrel with this propositionand we are not inclined to hold, as the High Court did, that leave canbe presumed to have been granted. There can be no presumption ofthis kind in a case of this nature. We are clearly of the view that inevery suit filed under Section 92, CPC, the grant of leave is necessarybefore the suit can be said to be properly instituted.
8. Having held so, we are faced with an unusual situation wherethe defendant contested the suit without raising the plea that leave ofthe Court has not been granted. Not only that, both sides led evidenceand the matter was decided on merits, the appellant herein submittedto the jurisdiction of the Trial Court without any demur and objection.
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AIt is also clear that the appellant was aware of such a provision withregard to grant of leave because in an earlier suit filed against theappellant he had taken an objection that leave had not been grantedand that suit was dismissed on this short ground. However, in the secondround of litigation, the appellant unfortunately chose not to take thisdefence.
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9. The courts below have come to a finding of fact that theGurudwara is a public place of worship. In fact, the case of theappellant/ defendant himself was that his father was Mohtmim of theGurudwara. A Mohtmim is in the nature of Shebait or Manager of theGurudwara and cannot be the owner of the Gurudwara. It has alsoCcome on record that about 14 kanals of land was donated by the villagersto the Gurudwara which fact has been admitted by the appellant in hiscross examination. Therefore, it is a public Gurudwara. We also findthat the Trial Court has framed a proper scheme for management ofthe Gurudwara in which an elected body has to take care of theDmanagement of the Gurudwara and this elected body will consist ofpeople belonging to the village.
10. Keeping in view the aforesaid facts, though legally theappellant is right that the suit could not have been instituted withouttaking leave yet in the peculiar facts and circumstances of the case,we are not inclined to continue this appeal.
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11. The civil appeal is dismissed. This case has been decided inpeculiar facts and circumstances and shall therefore not be treated asprecedent.
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Divya Pandey
Appeal dismissed.
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