Bhupinder Singh vs Joginder Singh(D) By Lrs.

Civil Appeal No(s). 6067/2010

BHUPINDER SINGH Appellant(s)

VERSUS

JOGINDER SINGH(D) BY LRS. & ORS. Respondent(s)

JUDGMENT

Deepak Gupta, J.

The respondents filed a suit in respect of Gurudwara in

village Pilkhani Tehsil and District Ambala. It was alleged

that the Gurudwara is 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 looking after

the same.

2. According to the plaintiffs, a committee for manning Signature Not Verified Digitally signed by MEENAKSHI KOHLI the Gurudwara was set up in which plaintiff No.1 was the Date: 2019.09.21 12:03:40 IST Reason:

President, plaintiff No.2 was the Secretary and plaintiff Nos. 3

1 and 4 were members of the Managing Committee. It is

alleged that after the death of Tarlok Singh, his son was not

managing the Gurudwara properly and therefore the

Committee wanted a scheme to be framed in terms of Section

92 of the Code of Civil Procedure, 1908, (CPC) for proper

management of the Gurudwara in question.

3. The case of the appellant herein was that the

Gurudwara was a private property earlier owned by his father

and now owned by him. It was alleged that public has no

right to access the Gurudwara and the suit under Section 92

was not maintainable.

4. Unfortunately, though an application was filed for

seeking leave of the Court to institute the suit under Section

92, CPC, no orders appear to have been passed on the said

application. Section 92, CPC reads as follows:

“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 leave of the Court 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 State Government within the local limits of whose jurisdiction the whole or any part of the subject­matter of the trust is situate to obtain a decree­ ­­­­­­­­­

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(g) settling a scheme. . . . .”

5. 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. The

contention raised on behalf of the appellant herein 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 in the suit and subsequently in the appellate

proceedings need to be set aside.

6. As far as the legal issue is concerned, there can be no

manner of doubt that grant of leave is a necessary pre­

requisite before a suit under Section 92, CPC can be

entertained. This Court has held in a number of judgments

that 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. Reference in

this behalf is made to R.M. Narayana Chettiar & Another.

3 v. L. Lakshmanan Chettiar & Others. [(1991) 1 SCC 48],

Vidyodaya Trust v. Mohan Prasad R. & Ors. [(2008) 4 SCC

115]. In R.M. Narayana’s case (supra), this Court held as

follows:­

“17. A plain reading of Section 92 of the Code indicates that leave of the court is a pre­condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable a all. Having in mind the objectives underlying Section 92 and the language thereof, it appears to us that, as a rule of caution, the court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under Section 92 to institute a suit. …”

7. Learned counsel for the appellant urges that in view of

law laid down by this Court, it is imperative that leave must

be granted before the suit is instituted. There is no quarrel

with this proposition and we are not inclined to hold, as the

High Court did, that leave can be presumed to have been

granted. There can be no presumption of this kind in a case

of this nature. We are clearly of the view that in every suit

filed under Section 92, CPC, the grant of leave is necessary

before the suit can be said to be properly instituted.

8. Having held so, we are faced with an unusual situation

where the defendant contested the suit without raising the

plea that leave of the Court has not been granted. Not only

4 that, both sides led evidence and the matter was decided on

merits, the appellant herein submitted to the jurisdiction of

the Trial Court without any demur and objection. It is also

clear that 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.

9. 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. It has also come on record that

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.

We also find that 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

5 this elected body will consist of people belonging to the

village.

10. 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, we are not inclined to continue

this appeal.

11. The civil appeal is dismissed. This case has been

decided in peculiar facts and circumstances and shall

therefore not be treated as precedent.

…….…....................J. [DEEPAK GUPTA]

……..…....................J. [ANIRUDDHA BOSE]

NEW DELHI;

September 18, 2019.

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ITEM NO.102 COURT NO.13 SECTION IV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 6067/2010

BHUPINDER SINGH Appellant(s)

VERSUS

JOGINDER SINGH(D) BY LRS. & ORS. Respondent(s)

Date : 18-09-2019 This appeal was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE DEEPAK GUPTA HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Shish Pal Laler, Adv. Mr. Sonit Sinhmar, Adv. For Mr. Ravi Panwar, AOR

For Respondent(s) Mr. Manoj Prasad, Sr. Adv. Mr. Harinder Mohan Singh, AOR Ms. Purnima, Adv. Mr. Ashutosh Dubey, Adv. Ms. Sabana, Adv. Mr. Vinod Mehta, Adv.

UPON hearing the counsel the Court made the following

O R D E R

The civil appeal is dismissed in terms of the signed

reportable judgment. Pending application, if any, stands disposed

of.

(MEENAKSHI KOHLI) (RENU KAPOOR) COURT MASTER COURT MASTER

[Signed reportable judgment is placed on the file]

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