2000 PLP 1182 (CLC)

(6) Whether the defendant illegally dispossessed the plaintiff and forcibly took the management of the Macca Masjid under the guise of illegal trust if. so, what is its effect? (7) To what relief, or reliefs, if any the plaintiffs are entitled? (8) Whether the suit is barred by section 92, C.P.C.? (9) ..........................................................................

5. The parties led evidence. From the side of applicant/plaintiff, Amin Gazi filed his affidavit in evidence and produced certain documents of the Society, while from the side of respondents/defendants respondent No. l Iqbal Shakoor filed his affidavit in evidence. He also produced documents of his Trust.

6. Issues Nos. l, 2 and 8 were answered in negative while issues Nos.3 and 4 were answered in affirmative by the learned trial Court and ultimately the suit was decreed on 28‑8‑1996. However, appeal filed by the respondents i.e. C.A. No. 114 of 1996 the above decree was set aside by the learned VIIIth Additional District Judge, Karachi East vide judgment, dated 9‑8‑1997, which has been impugned in this revision application.

7. I heard learned counsel for the parties and also perused the record. Learned counsel for the applicants submitted that the respondents dispossessed the applicants by creating illegal Trust as a Trust can be created under Muslim Law by a person who owns the property. In support of his submissions, the learned counsel relied upon section 176 of the Muslim Law (D.F. Mulla's Principles of Mohammadan Law) p.257, PLD 1993 Kar. 605 and PLD 1994 Kar.

375. It was further contended that the respondents did not raise any objection as to the maintainability of the suit except section 92, C.P.C. which was disallowed by the learned trial Court. Other contentions of the applicant are summarised as under:‑‑ "(a) The learned appellate Court allowed the appeal of the respondents altogether on different grounds. The applicant had not pleaded breach of Trust illegally created by the respondents regarding Macca Masjid and filed suit for cancellation of the Trust being illegal and void, therefore, section 92, C.P.C. would not be applicable to the facts of this case. He cited, Khadani Hussain and others v. Ata Muhammad 1970 SCMR 127. (b) The trust deed was not produced because respondents themselves produced photostat copy of the disputed Trust Deed, through respondent No.l Iqbal Shakoor. No objection was taken by the respondents regarding the production of the photostat copy of the said document and, therefore, it was accepted. Such objection cannot be taken at the appellate stage. He relied upon Ghulam Muhammad v. United Estate Agency for International Development (US A/D) Mission, Islamabad 1986 SCMR 907 and Gulzar Hussain v. Abdul Rehman and another 1985 SCMR 301. (c) The plaint was verified by the secretarv of applicants Society which is in accordance with the provisions contained in Order 29, Rule 1, C.P.C. Even otherwise this objection was not raised by the respondents in iheir written statement. Therefore, they could not be allowed to raise such objection at the appellate stage. See Emirate Bank International Ltd. v. Super Drive‑in Ltd. 1990 MLD 538. (d) Section 92(1), C.P.C. provides that when the suit is for breach of trust, the permission of Advocate‑General is required but these provisions are not attracted to the facts and circumstances of this case as was held by the learned trial Court. Section 92, C.P.C. is applicable to Public Trust and not to the Private Trust and the respondents Secretary in 'his cross‑examination admitted that the Trust in question is a private Trust and it pertains to the affairs of Macca Masjid only. (e) No objection was raised in the written statement and no issue was framed in the suit regarding proof of the original trust deed and this is not even required by‑section 39 of the Specific Relief Act. (f) Section 7(iv)(c) of Court Fees Act, provides for a declaratory decree and consequential relief to obtain declaratory decree or order where the consequential relief is prayed for. In all such suits the plaintiff shall state the amount at which he valued the relief sought. In the instant case, the plaintiff in para. No.23 of the plaint had accordingly valued the suit in terms of the above provisions and even otherwise the Trust sought to be cancelled was in respect of the affairs of the Macca Masjid which cannot be evaluated in terms of money and, therefore, the plaint was properly valued.

8. Learned counsel for the respondents on the other hand submitted that:‑‑ (a) Suit filed by the applicants was hit by section 92, C.P.C. as no permission from the Advocate‑General was obtained to file the suit against the Trustee and in this regard he referred to, prayer clauses (D), (E) and (F) of the plaint, which according to him indirectly seek removal of the trustees in existence and for this purpose certain conditions laid down under section 92, C.P.C. were required to be fulfilled. He elaborated this submission by submitting that this being a legal objection can be raised at any time. The applicant had prayed for a declaration as well as cancellation of Trust Deeds with regard to 'the present Trust but if such a declaration is allowed, obviously the present Trustees will be removed and in their place new trustees would be appointed. Likewise, if the present Trust Deeds allowed to be produced in evidence, as this was not done regarding Macca Masjid Trust Deed, ‑ therefore, this cancellation will not be sustainable in law. (b) Possession of the mosque has been sought but no court‑fee has been paid under section 7(4)(c) ofthe Court Fees Act. (c) The suit was filed without consent of the Advocate‑General, as required under section 92, C.P.C., therefore, it was not maintainable. (d) The person who signed and verified the plaint was not authorised.

9. At the very outset I will take up the objection of the respondent based on the provisions of section 92, C.P.C. which ‑ is reproduced as under:‑‑ "

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 consent in writing of the Advocate General, 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 (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 subsection (.1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection. "It is evident from the aforesaid section that consent of the Advocate‑General is condition precedent for filing of suit for seeking various kinds of reliefs in relation to public charity. From the photostat copy of the trust deed, filed by the defendant, which document was also admitted by the applicant/plaintiff, this trust is created for the benefit of "Namazis" in general and the trust was a public trust; which is covered under section 92, C.P.C. The relief which A the applicant/plaintiff has sought in the plaint, if granted will result in removal of the trustees and, therefore, the learned appellate Court rightly carne to the conclusion that prior consent of the Advocate‑General was necessary under the aforesaid provisions.

10. Admittedly, the subject plot was earmarked for mosque which being a place of worship is available for every Namazi. So far as trust created by .the respondent/defendant No. l is concerned, it was yet to be decided whether it was created lawfully or not. It has also come on record that the mosque in question is also under the control and management of the trustees of the trust created by the respondents/defendants Nos. l to

9. It is not necessary for the purpose of section 92 that the trustee should always be de jure. Even defect to and constructive trustees are also covered under section

92. Reference may be made to the judgment reported as Mian Jan v. Fakir Muhammad PLD 1960 Kar.

420. In the circumstances of the case, I find that consent of Advocate‑General was necessary, which requirement is mandatory under section 92, C.P.C. Since such consent was not obtained, the suit was not maintainable.

11. Now coming to the very trust deed, admittedly the copy of said trust deed ought to be cancelled in suit was not produced alongwith the plaint. It is contended by the learned counsel for the applicant that its non production was of no consequence because the witness of the respondent himself produced it. On the other hand that learned counsel for the respondent vehemently urged that the applicants were under a legal obligation to have filed it alongwitlt the plaint. Since they did not do go, the suit was not competent. Reliance was placed in this connection on section 39 of the Specifies Relief Act. Reference can also be made to Order 7, Rule 15, C.P.C., which requires that if any such document is not in possession of power of the plaintiff, he shall "if possible state in whose possession or power it is". The consequences for non production of such document is provided in Order 7, Rule 18, C.P.C., which reads as under:‑‑ "

18. Inadmissibility of document not produced when plaint filed.‑‑‑ (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave .of the Court, be received in evidence on his behalf at the hearing of the suit, (2) Nothing in this rule applies to documents produced for cross examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.'

12. The production of copy of the trust deed by the respondent/defendant might have its evidentiary value, but it would not cure the defects resulting from plaintiff/applicants failure to produce it alorigwith the plaint or at a subsequent stage without leave of the Court. Moreover, the trust deed being a registered document, the plaintiff could have obtained its certified copy from the Sub‑Registrar concerned. I find that the plaintiff even did not serve notice upon the defendants/respondents, to produce that document. There is thus, no scope to interfere with the findings of the learned appellate Court on this issue in exercise of revisional jurisdiction.

13. The learned appellate Court also came to the conclusion that Muhammad Amin Chotani, Honorary General Secretary of the plaintiff who signed and verified the plaint was not competent to do so. I have seen the resolution which the plaintiff/applicant filed in Court, but there is nothing in it to show that the Secretary‑General of the plaintiff was authorised to sign and verify the plaint. No other document was brought on record to show the authority of applicant Amin Chotani to verify the plaint and, therefore, findings of the learned appellate Court on this issue are also unexceptionable. The upshot of the above discussion is that this revision having no merits is dismissed with costs. Q.M.H./M.A.K./K‑4/K Revision dismissed.