SECTION 92 OF CPC IS NOT APPLICABLE IN A SUIT FILED BY A CHARITABLE TRUST AGAINST A THIRD PARTY

[Mr. M. GOVINDARAJAN]

Section 92 of the Civil Procedure Code, 1908 (‘Code’ for short) provides the procedure for filing a civil suit by a Charitable trust against a third party.  Section 92(1) of the Code  provides that 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 subject-matter of the trust is situate to obtain a decree-

1. removing any trustee;
2. appointing a new trustee;
3. vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

4. directing accounts and inquiries;
5. declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
6. authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
7. settling a scheme; or
8. granting such further or other relief as the nature of the case may require.

In terms of sub Section (1) of Section 92 of the Code, it is mandated that if a trust were to file a suit whether contentious or not, leave of the principal Civil Court of original jurisdiction or any other Civil Court empowered in that behalf by the State Government within the local limits of which subject matter is situate, would have to be obtained in order to institute the suit.   The said provisions also details out the nature of the suit that would come within the purview of sub Section 92(1) of the Code.

In DR. NARASIMHALU NANDINI AND DR. MAHALINGA B. VERSUS JANATHA TRUST AND OTHERS - 2023 (7) TMI 628 - KARNATAKA HIGH COURT  the respondent Janata trust filed a suit before the Additional Civil Judge, Raichur seeking a permanent injunction against the petitioners and others from interfering with the peaceful possession of the property (37guntas) as Rampur village.  The petitioners, in this writ petition, filed reply to the suit in the Civil Court.  The petitioners, before the Civil Court submitted their reply to the plaint.  The petitioners also filed a petition before the Civil Court under Section 92 of the Code on 20.12.2021.  In the petition the petitioner alleged that the present suit could not be filed by the Trust against the petitioners under Section 92 of the Code, without getting the required permission. 

The Trial Court dismissed the application filed by the petitioner holding that the suit having been filed against the third party, there is no requirement of permission under Section 92 of the Code to be taken.  Being aggrieved against the order of the Civil Court, the petitioners filed the present writ petition before the High Court seeking the following reliefs-

• Issue a writ of certiorari quashing the impugned order passed by the Addl. Civil Judge and JMFC-III, Raichur dated 31.03.2022 in O.S.No.263/2021, in the interest of justice and equity.
• Issue any writ or order or directions as this Hon'ble Court deems fit in circumstances of the case, in ends of justice and equity.

The petitioners submitted the following before the High Court-

• The proceedings initiated by the Public Charitable Trust are akin to a representative suit in terms of Order I Rule 8 of the Code.
• The trust filing the suit on behalf of its beneficiaries and trustees any suit which is filed by a trust would have to satisfy the requirement of Section 92 of the Code.
• Since the allegation is that there is an interference with the property of the trust, the same at the most would amount to a public nuisance and in terms of section 92 of the Code without permission being taken from the jurisdictional District Court acting in its capacity as a parens patriae no suit can be instituted by the public charitable trust against anybody.
• These aspects going to the very root of the matter inasmuch as the suit itself is not maintainable.
• Since no permission having been obtained, the trial Court ought to have considered the same and dismissed the suit at the threshold itself.

The petitioner, therefore, prayed to allow the writ petition. 

The High Court considered the submissions made by the petitioners.  The High Court framed the issue that it is to be taken for consideration as to whether a public charitable trust could be required to obtain permission from the jurisdictional District Court in order to file the suit against a third party.  The High Court analyzed the provisions of Section 92 of the Code.  The High Court observed that the petitioners referring to Section 92(1) (h) of the Code submitted that even as regards the permanent injunction or a bare injunction suit, necessary leave has to be obtained in terms of Section 92(1) of the Code. 

The High Court observed that Section 92 of the Code would indicate that a suit relating to removal of a trustee, appointment of new trustee, vesting the property in a trustee, direction to a trustee, accounts and enquiries of the trust, usage of the trust property for a particular purpose, settling the claim, etc. is carried under sub section (ii) of Section 92 of the Code.  Clause-(h) is a residuary provision which deals with granting of any such further or other relief as the nature of the case may require which can only relate to the subject matter enumerated in Clauses-(a) to (g) and would have to be read in conjunction with the said clause. Clause-(h) has no independent existence nor does it provide for an independent subject matter so as to make it applicable to a suit for permanent injunction filed by the trust against a third party.  It is only in respect of the subject matter at Clause-(a) to (g), that leave of the Court is required to be obtained and in connection thereto, any such other further reliefs in the interest of justice or in the nature of the case may also be sought for.

In the opinion of the High Court the suit filed by the trust would not come within the purview of Section 92 of the Code.  The said suit having been filed in the normal operation of the trust for the trust to preserve and protect its properties and or claim such other properties and not relating to the management of the trust which would be outside the purview of Section 92 of Code.  If such an interpretation is taken up, then a public charitable trust would never be able to file any suit for bare injunction, recovery of money, specific performance, declaration or the like, thus, impending effective functioning and operation of the trust.   The trial Court considered several aspects relating to the dispute between the plaintiff and the defendants of the suit and held that Section 92 of the Code would not apply for the suit filed by the Trust.

The High Court upheld the findings of the Civil Court and dismissed the writ petition filed by the writ petitioners.