P L D 1969 Karachi 646 (PLP)

(a) Civil Procedure Code (V of 1908), S. 92 and O. 1, r. 8‑Scope‑Application of section limited to representative suits under O. I, r. 8‑Suits filed by trustee not covered by section

Consent of Advocate‑General not necessary in such cases. Appanna Poricha v. Narasirga Poricha and others A I R 1922 Mad. 17; Jamait Dawat Wa Tabligh Islam v. Muhammad Sharif A I R 1938 Lah. 869; Petit v. Jibhai I L R 33 Bom. 509 and N. Shammukhom Chetty v. M. Govinda Chetty and others A I R 1938 Mad. 92 rel. Abdur Rahim and others v. Muhammad Barkat Ali and others I L R 55 Cal. 519 ref. Barrarmal v. Motigir A I R 1936 Sind 179 not approved. (b) Specific Relief Act (I of 1877), S. 42‑--Suit by trustee for protection of trust property‑Not barred by S. 42‑Suit filed by trustee not barely for declaration but also for rendition of account

Not affected by S. 42. (c) Civil Procedure Code (V of 1908), S. 11‑Res judicata

Application filed on same facts as relied upon in earlier application‑Order of dismissal of previous application becoming final‑Second application, held, barred by res judicata. Both these Revision Applications arise out of Suit No. 9 of 1965 which is pending in the Court of the Civil Judge, Shahdadkot, and will therefore be disposed of by this order.

2. The facts material to these applications are as follows. Mahraj Gopi Krishan and Seth Hardasmal have filed the said suit against Khialdas and Lalchand for a declaration and for rendition of accounts. The contention of the plaintiffs in this suit is that the Hindu General Panchayat of Shahdadkot is a religious and charitable organisation which owns considerable movable and immovable properties in Shahdadkot and the affairs of the said Panchayat are controlled by a Committee of persons of the Hindu community of Shahdadkot known as the Managing Committee of the said Panchayat. According to the plaint, this Committee had appointed the said Khialdas as its treasurer or Modi to look after the said properties. But he committed waste and even failed to submit accounts to the Managing Committee, therefore on 20th March 1965 they (the plaintiffs) filed a suit against him being Suit No. 9 of 1965 in the Court of the Civil Judge, Shahdadkot for a declaration that the property specified in the plaint belonged to the Hindu General Panchayat of Shahdadkot, for an order directing the said Khialdas to submit accounts of the properties managed by him, and for the appointment of a Receiver to manage the said properties. The second defendant in this suit, Lalchand, is the member of the Managing Committee and as he was not willing to file the suit, he has been impleaded as a defendant. I may observe here that he has not taken part in the proceedings in this Court. But the said Khialdas is contesting the said suit and has filed his written statement in April 1966. The only plea in his written statement, which is relevant to these applications, is that the Hindu Panchayat of Shahdadkot was not a religious or charitable organisation. However, about a year after filing this written statement and contrary to the said plea in the written statement, he filed an application under Order VII, rule 11, C. P. C. on 5th June 1967 for the dismissal of the suit on the ground that the said Panchayat was a religious or charitable organisation and that as the suit had been filed without the consent of the Advocate‑General under section 92 of the C. P. C. it should be dismissed. He also contended in the said application that the suit was barred by section 42 of the Specific Relief Act and that it did not disclose any cause of action. This application was heard and dismissed by the learned Civil Judge by his order dated the 10th October 1967, and Revision Application No. 240 of 1967 has been preferred by the said Khialdas against the order dismissing his application under Order VII, rule 11, C. P. C. It will be convenient therefore to describe Khialdas as the defendant‑applicant.

3. About a year after the plaintiffs had filed their suit against the said Khialdas and Lalchand, they had applied for the appointment of a Receiver under Order XL, rule 1, C. P. C. pending the hearing of the suit filed by them. This application was dismissed by the learned Civil Judge on 21st March 1966 on the ground that "no evidence was forthcoming". The plaintiffs did not file an appeal against this order which became final. However, on 19th October 1967, they filed a second application under Order XL, rule 1, C. P. C. for the appointment of a Receiver on the same grounds on which their earlier application was dismissed. This second application was allowed and by his order dated the 20th November 1967, the learned Civil Judge appointed the Local Public Prosecutor as the Receiver. Aggrieved by this order, the said Khialdas filed an appeal which was heard and allowed by the learned District Judge, Larkana by his order dated the 10th January 1968. As the learned District Judge set aside the order appointing the public prosecutor as Receiver, the plaintiffs have filed a revision against the said order of the learned District Judge which is revision 82 of 1968. It will be convenient to describe the plaintiffs as the plaintiffs -applicants, and as their application for Receivership can be considered only if the suit filed is not barred by Order VII, rule 11, C. P. C. as contended by the defendant‑applicant, I shall first consider Revision Application No. 240 of 1967.

4. Learned counsel for the defendant‑applicant advanced three submissions in support of his revision application. The suit was filed for obtaining the accounts of a religious and charitable organisation without the consent of the Advocate- General under section 92, C. P. C., therefore learned counsel argued that the suit was barred by the provisions of section 92, C. P. C. Secondly, learned counsel argued that the suit was barred by section 42 of the Specific Relief Act and thirdly learned counsel argued that it did not disclose any cause of action.

5. I shall first consider the objection of learned counsel for the defendants‑applicants that the suit is barred by section 92, C. P. C. In order to appreciate this contention it will be convenient to quote here the provisions of section 92, C. P. C. Section 92, C. P. C. state as follows:‑ "92. (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charit able or religious nature, 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 consent in writing of the Advocate‑General, may institute a suit, whether con tentions or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial 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; (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. (2) Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in sub section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection. This section applies only to suits in which relief is sought against public trusts. Suits in respect of public trusts can be filed either by members of the public under the provisions of Order I, rule 8, C. P. C. or by trustees and the question for consideration is whether this section is intended to regulate only representative suits filed under Order I, rule 8, C. P. C. or whether it is also intended to regulate suits by trustees for the enforcement of trusts, whether against co‑trustees or any other person.

6. According to learned counsel for the defendants- applicants, the section embraces both representative suits and suits by trustees, provided the relief sought falls under those specified in the section. Learned counsel was not able to advance any reasons in support of his interpretation of section 92 but according to learned counsel this interpretation followed from a plain reading of the section. I am not able to agree with learned counsel's interpretation. In the first place, the section applies not to suits filed by trustees, but to suits filed by ` two or more persons having an interest in the trust". The words quoted are apt to describe the persons who file a representative suit, but not trustees because, if the Legislature had intended to extend the scope of the section to suits by trustees it could easily have said so. However, even if I am wrong in thinking that the words quoted exclude suits by trustees, there is at least an ambiguity in the section and this ambiguity has to be construed in accordance with the established principles for the interpretation of statutes. A code of procedure is not intended to affect, and should not be interpreted so as to take away vested rights or to make sweeping changes in substantive law, in the absence of express language in that respect. Now the rights of trustees to file a suit for any of the reliefs specified in section 92 is based on the common law, unlike the right of plaintiffs in a representative suit which was governed, even before section 92 was enacted, by the provisions of the C. P. C. itself. It would therefore be reasonable to restrict the interpretation of this section to suits filed under Order I, rule 8, C. P. C. But if this section is applied to suits‑ by trustees for the enforcement of trusts, it would undoubtedly cause hardship and inconvenience in the filing of such suits, thereby creating obstacles in the proper enforcement of public trusts. It is unlikely in the extreme that the Legislature could have entertained such an intention when it enacted section 92, the more so as the words used by the Legislature, namely, "two or more persons having an interest in the trust" are not apt to describe suits filed by trustees. I am therefore of opinion that the scope of section 92 is limited to representative suits under Order I, rule 8, C. P. C.

7. I am fortified in my opinion by a judgment of the Madras High Court in Appanna Poricha v. Narasinga Poricha and others (A I R 1922 Mad. 17), cited by learned counsel for the plaintiff-respondents. The Madras High Court has held an that case that the language of section 92 was not such as to indicate that its scope extended to suits filed by trustees. However, in view of the importance of this question, I have examined the case law myself, and I find that there was a long conflict of authority in the various High Courts on the interpretation of this section and of section 539 of the old Code of Civil Procedure which is replaced. However, as the provisions of section 92 have been considered by the Judicial Committee in Abdur Rahim and others v. Mahomed Barkat Ali and others (I L R 55 Cal. 519), I shall consider this judgment which is binding on me. The facts of the case before the Privy Council were that the plaintiffs had filed a re presentative suit for a declaration that certain property was waqf property. The suit was decreed by the trial Court, but the judgment was reversed in appeal by the Calcutta High Court on the ground that the suit had been filed without the sanction of the Advocate‑General under section 92, C. P. C., therefore it was dismissed. The plaintiffs filed an appeal before the Judicial Committee. The contention of the respondents before the Judicial Committee was that the relief of declaration sought by the plaintiff fell under the provisions of sub‑clause (h) of sub section (1) of section 92 (namely granting such further or other relief . . . . . ."), therefore the suit was rightly dismissed by the Calcutta High Court as it had been filed without obtaining the Advocate‑General's consent under section

92. This argument was rejected by the Judicial Committee, and at page 527 Lord Sinha, who delivered the judgment of the Judicial Committee, observed as follows :‑ "Their Lordships are unable to accept this argument. First, because the words "further or other relief" must on general principles of construction be taken to mean relief of the same nature as clauses (a) to (g). Secondly, because such construc tion would cut down substantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the Legislature intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time." In view of the Privy Council's observations that an amendment in a Code of Civil Procedure should not be treated to "cut down substantive rights", in my humble opinion, it is clear that section 92 was not intended to affect suits filed by trustees for the protection of trust property, whether against co‑trustees or strangers, and that was the view taken by a Division Bench of the Lahore High Court in Jamait Dawat Wa Tabligh Islam v. Muhammad Sharif (A I R 1938 Lab. 869).

8. However at page 529 of the judgment Lord Sinha had also observed "that a suit which prayed for any of the reliefs mentioned in section 92 could only be instituted in accordance with the provisions of that section." On the basis of these observations, some High Courts have held that even suits by trustees are barred unless they are filed with the consent of the Advocate‑General under section

92. Thus this view was taken in Barrarmal v. Motigir (A I R 1936 Sind 179). The question therefore is whether these observations which I have just quoted were really intended to extend the scope of section

92. Such a view would be inconsistent with the observations of Lord Sinha at page 527 that a Code of Civil Procedure should not be interpreted to cut down substantive rights. Secondly, as I have observed, the right to file a representative suit was already governed by the Code of Civil Procedure, therefore in my opinion the provisions of section 539 in the old Code, and of section 92 in the present Code, are intended to regulate the institution of such suits, the more so as the restriction imposed by the section that no suit should be filed without the consent of the Advocate General is clearly intended to avoid harassment by multiplicity of litigation which can arise only in the case of representative suits against trustees. Thirdly, all the observations of the Privy Council in the judgment cited have to be construed in reference to the fact that the suit before their Lordships was a representa tive suit, therefore it is unlikely that any observations contained in the judgment were intended to affect suits by trustees. In my humble opinion, this is clarified beyond doubt by the observations of Lord Sinha at page 529 that under the old Code of Civil Procedure there had been great divergence of opinion between the High Courts on the interpretation of section 539 and the object of enacting section 92, was to put an end to this difference of opinion by accepting the view taken by the Bombay High Court of section 539. 1 have therefore examined the judgments of the Bombay High Court which were placed before the Judicial Committee. The only judgment of the Bombay High Court relating to a suit by trustees was that of a Division Bench in Petit v. Jibhai (I L R 33 Both. 509). The facts of that case were that a suit had been filed by trustees against other trustees without the consent of the Advocate‑General and the defendants had raised an objection that the suit was barred because it had been filed without obtaining the Advocate General's consent under section 539 of the then Code of Civil Procedure. In rejecting this contention, the Court observed at page 529 of the judgment. "Mr. Mulla, in his commentary on section 539 of the Civil Procedure Code (2nd Edn.), deduces at page 487 of his book the following proposition as the result of the authorities he cites there :‑ Suits brought not to establish a public right in respect of a public trust, but to remedy a particular infringement of an individual right, are not within the section. I am in entire accord with this proposition. I am of opinion that it correctly defines the scope of the section. This is undoubtedly a suit for the purpose of remedying an alleged infringement of an individual right, and, as such, is clearly not within the section." I am not aware of any judgment in which the Bombay High Court has taken a different view, therefore, according to the Bombay High Court, the provisions of section 539 of the old Code of the Civil Procedure were not applicable to suits by trustees. According to the Privy Council, the intention of the Legislature in enacting section 92 was to follow the Bombay High Court's view of the scope of section 539, it seems to me that the observations of the Privy Council quoted by me in para. 8 had reference only to representative suits filed under Order 1, rule 8, C. P. C. I am fortified in my opinion by a judgment of Madras High Court in N. Shanmukhanz Chetty v. M. Govinda Chetty and others (A I R 1938 Mad. 92) in which that Court has also taken the same view that these observations of the Privy Council had reference only to representative suit. Accordingly, I hold that section 92 is not applicable to suits filed by trustees. Inl' the instant case, the suit has been filed by the trustees of the Hindu Panchayat of Shahdadpur, therefore, the consent of the Advocate‑General was not necessary for filing this suit and the objection of the defendant‑applicant is without merit.

9. Learned counsel for the defendant‑applicant next submitted that the suit was barred by the provisions of section 42 of the Specific Relief Act, 1877. According to the learned counsel, the plaintiff‑respondents had no right, as members of the Hindu community, to the property of the Hindu Panchayat,therefore, they had no legal character within the meaning of section 42 of the Specific Relief Act, 1877, to sue for any declaration in respect of such property. This plea was advanced because the plaintiffs have not expressly stated in the plaint that they have filed the suit against the defendants applicant as trustees. However, they have stated in the plaint that the affairs of the Hindu Panchayat were managed by a Committee, known as the Managing Committee and that they were members of the Managing Committee. They have further stated that this Manag ing Committee had appointed the defendant‑applicant as its Modi, and by virtue of this appointment the defendant‑applicant had also become a member of the Managing Committee. Then they have stated that he had not been submitting accounts to them and had misappropriated the funds of the Panchayat, therefore, they had filed the suit. It is therefore clear that the suit has been filed by the plaintiffs‑respondents in their capacity as trustees and not as members of the Hindu Committee of Shahdadkot. The argument that a suit by trustees for the protection of trust property is barred by section 42 of the Specific Relief Act is frivolous and is not fit to be considered. In any case, the suit is not for a bare declarations, it is not affected by section 42.

10. The only other argument advanced by learned counsel was that the plaint in the said suit did not disclose any cause of action. When I enquired from learned counsel whether he could show any authority in support of the submission that trustees could not file a suit for the protection or preservation of trust property, he stated that the plaint did not contain any particulars of the alleged misconduct of the defendant applicant. It is true that the plaint is unsatisfactory in this respect and does not give proper particulars of the allegations against the defendant‑applicant. The defendant will therefore be entitled to ask for further and better particulars of the plaint in the trial Court, but the argument that the plaint does not therefore disclose any cause of action is frivolous and is rejected.

11. In the result the trial Court has rightly dismissed the defendants‑applicants application under Order VII, rule 11, C. P. C. therefore, revision Application No. 240 of 1967 is dismissed. I have to observe here that in my opinion the said application under Order VII, rule 11, C. P. C. was frivolous and appears to have been filed only to delay proceedings. There fore, subject to the right of the defendant‑applicant to obtain further and better particulars of the plaint, the trial Court shall dispose off Suit No. 90 of 1965 without delay.

12. As I have observed, revision Application No. 82 of 1968 has been filed by the plaintiffs‑applicants against the judgment of the learned District Judge, by which the learned District Judge dismissed their application for the appointment of a receiver on the ground inter alia that this application was barred by res judicata. Learned counsel for the plaintiffs applicants conceded that the plaintiffs had filed an application under Order XL, rule 1, C. P. C. in 1966 which had been dismissed on 21st March 1966, and the order dismissing that application had become final. He also admitted that the second application filed by the plaintiffs, which had been allowed by the trial Court on 20th November 1967, had been filed on the same facts as had been relied upon in the earlier application. As the earlier order of dismissal had become final it is clear that the learned District Judge has rightly held that their second application was barred by res judicata. The revision Application is, therefore, without merit and is dismissed.

13. In the result revision Application No. 240 of 1967 is dismissed with costs and Revision Application No. 82 of 1968 is dismissed without costs. S. A. H. Revisions dismissed.