2015 PLP 530 (CLC)

AFTAB AHMED GORAR, J.

Through this Civil Revision Application the applicant Muhammad Anwar has challenged the Judgment and Decree dated 28-9-2010 passed by learned IIIrd Additional District Judge, Karachi West in Civil Appeal No.67 of 2007 whereby he dismissed the appeal filed by the applicant and maintained the Order dated l4-7-2007 and Decree dated l8-7-2007 passed by learned IInd Senior Civil Judge, Karachi West in Suit No.652 of 2005 whereby he rejected the plaint in the said suit filed by the applicant. Precisely, the facts of the case are that the applicant filed a civil suit for declaration and permanent injunction seeking, inter alia the following reliefs: (i) Declare that the plaintiff is wrongly declared a Murtid by the defendants and it is not binding upon the plaintiff and that he is fit person to continue as a Pesh Imam of the Jama Masjid Touheed Wa Madressah and Maher to continue to perform his duties he has been performing for the last 24 years. (ii) Grant permanent injunctions against the defendants and their agents, men, attorneys, assigns or anybody acting on their behalf as an outsiders not to interfere in the smooth business of the Jama Masjid as carried out by the plaintiff for the last 24 years. (iii) Grant the temporary injunction against the defendants not to call the plaintiff as a Murtid and to disturb his Imamat in the Jama Masjid and further restrain the defendants not to create illegal distribution of the muslims on the so-called FATWA and the plaintiff Imamat by brawl and seditious remarks and he be allowed to continue to perform his duties and the defendants being outsiders have no locus standi to interfere in the Jama Masjid affairs. The respondents Nos.1 to 6 contested the matter by filing written statement. They also moved an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the grounds that the suit mosque being a trust property, the suit is barred under section 92, C.P.C. as the applicant has not obtained permission from the Advocate-General Sindh and that the suit is barred under sections 42, 54 and 56 of the Specific Relief Act. The applicant did not file objections to the said application. However, the learned trial court after hearing the learned counsel for the parties on the application under Order VII, Rule 11, C.P.C. allowed the same with the result the plaint was rejected side Order dated 14-7-2007 and Decree dated 18-7-2007. The said Order and Decree were challenged in appeal which was also dismissed vide impugned Judgment and Decree, hence this Civil Revision. I have heard learned counsel for the parties and have gone through the material available on the record. Learned counsel for the applicant contended that the order/judgment passed by the two courts below are bad in law and contrary to the facts of the case. He submitted that the two courts erred in law and on facts while passing the impugned orders. He further contended that the impugned orders have been passed in a hasty and mechanical manner without appreciating the facts on record and the relevant law. He further contended that the two courts below have not applied judicial mind to the pleadings of the parties and the contentions raised on behalf of the applicant. He further submitted that both the courts below failed to examine carefully the entire record of the case and decided the matter on the basis of surmises and conjectures. According to him, the courts below failed to appreciate that no affidavit was filed by the respondents in support of the application under Order VII, Rule 11, C.P.C. hence the same was liable to be dismissed. He further contended that instead of adopting technicalities, the suit should have been decided on merits. He also contended that the trial court erred in observing that as the applicant did not file any objections, the contents of the application had gone unchallenged. He further contended that when the same legal grounds, as urged in the application under Order VII, Rule 11, C.P.C. had been taken in the written statement the trial court was supposed to frame legal issues and thereafter evidence should have been recorded to prove such legal pleas. He further contended that the suit filed by the applicant was in the individual capacity, hence there was no need to seek permission of the Advocate-General under section 92, C.P.C. He prayed for allowing the revision and setting aside of the impugned judgment/order. Conversely, learned counsel for the respondents contended that the revision application against the concurrent findings is not maintainable. According to him, the revisional jurisdiction can be exercised by the High Court only in those cases where subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction illegally or with material irregularity and all the three ingredients lack in the instant case. He further contended that the impugned order/judgment passed by the courts below are in accordance with the law and norms of justice. He further contended that as the mosque was a trust property, it was mandatory requirement that written consent of the Advocate-General was obtained for filing the suit in respect of the said trust property which was not done, as such plaint was rightly rejected. He further contended, that even otherwise the suit was barred. In sections 42, 54 and 56 of the Specific Relief Act. He prayed for maintaining the impugned order/judgment and dismissal of the revision application. Learned counsel for the applicant stressed on the point that the applicant had filed suit in individual capacity seeking a declaration against the FATWA whereby he was declared as Murtid, therefore, he was not required to seek permission/consent under section 92, C.P.C. from the Advocate-General. However, from a bare perusal of the prayers made by the applicant in the suit, it is evident that he has also sought relief for granting permanent injunction against the defendants and others not to interfere in the smooth business of the Jama Masjid. In the very first para of the suit filed by him he stated that, "Plaintiff is a Pesh Imam of the Jama Masjid Wa Madressah Touheed, for the last 24 years, and is President of the Newly formed applied registered Trust namely Jama Masjid Wa Madressah Touheed." In para 2 he, inter alia, stated that the Jama Masjid Wa Medressah Touheed formed by Mr. Muhammad Farooq son of Jamshir Khan, after purchasing the Plot Nos.345, 356 and 357 . and the same were gifted/waqf for the Jama Masjid in the year 1995-1996. In this view of the matter, admittedly, the Masjid in question is a Trust/Waqf property and the applicant, inter alia, sought relief for granting permanent injunction against the respondents not to interfere in the smooth business of the Jama Masjid, viz. the Trust/Waqf property. In order to determine as to whether the suit instituted by the applicant comes within the scope of section 92, C.P.C., it would be advantageous to refer to the guidelines set forth by the honourable Supreme Court in the case of Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others (PLD 1989 SC 283) in respect of a suit under section 92, C.P.C. The apex court laid down following pre-conditions for the presentation of such suit: (i) There must be a trust for a public purpose of a charitable or religious nature. (ii) The plaint must either allege that there is breach of trust or that the directions of the Court are necessary for the administration of the trust. (iii) The suit must be representative one on behalf of the public and not for the ascertain of the personal rights of the plaintiffs. (iv) The relief claimed must be one of the reliefs enumerated in section 92, C.P.C. Examining the present case in the light of above guidelines, from the perusal of the contents of the plaint, it is clear that the suit comes within the scope of section 92, C.P.C. Now question arises as to whether the applicant comes within any of the categories of persons by whom such a suit can be filed. Subsection (1) of section 92, C.P.C. provides:

"In the case of any alleged breach of any express or constructive trust created for public purposes of 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 any 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...." From a bare perusal of subsection (1) of section 92, C.P.C. it is crystal clear that a suit in respect of trust property can be brought either by the Advocate-General himself or by "two or more persons having an interest in the trust", provided they have obtained the consent in writing of the Advocate-General. Apparently only the applicant has instituted the suit, thus the legal requirement for filing of the suit by "two or more persons" has not been fulfilled, so also another pre-condition to obtain the consent in writing of the Advocate-General has also not been fulfilled. In this view of the matter, it can safely be held that the applicant had no locus standi to institute the suit. It is not only the requirement of law, but it is in the interest of the litigants that the incompetent suit should not be allowed to further encumber legal proceedings. Stillborn suit must be burried at its' inception, without formal funeral ceremony. It will be advantageous to reproduce the following observations made by the apex Court in (S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan) reported in 2002 SCMR 338:

"It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties arid the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes." Yet there is another aspect of the case. It is now well-settled that revisional jurisdiction of this Court has very limited scope and it can be exercised only in those cases where subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. The learned counsel for the applicant could not be able to point any such flaw in the impugned order/judgment which could justify this Court to interfere with the same. The upshot of above discussion is that I do not feel myself inclined to interfere with the orders passed by the two courts below, with the result the same are maintained and instant revision application is dismissed in limine. AG/M-11/Sindh Revision dismissed.