RAJENDER JAIPURIA Vs. TILAK RAJ

JUDGEMENT

(1.) In this Revision Petition the Orders dated 3.2.1998 granting leave and permission to the Plaintiffs to institute a Suit in a representative capacity, as envisaged in Section 92 of the CPC, has been assailed on various grounds.

(2.) It has firstly been contended by the Petitioner that the learned Trial Court fell into error in holding that there was no necessity to issue notice to the Defendant prior to granting or refusing of Leave under Section 92 as at that stage it was only the subjective satisfaction of the Court that was required and that such an order was of administrative nature. In this regard the observations in Gurdwara Prabandhak Committee, Delhi Cantonment and others vs. Amarjit Singh Sabharwal and others, AIR 1984 Del 39 are apposite. It had been observed therein that the object of Section 92 is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits being filed against them; that before permission/leave is granted the public trust has a right to be heard and the decision should be incorporated in a reasoned and speaking order. The observations of the learned Trial Court, therefore, cannot be sustained but as it would be seen, this error in regard to the perception and exercise of jurisdiction does not vitiate the Order. The Defendant was already before the Trial Court and although an opportunity to file a Reply may not have been afforded, an opportunity of being heard was granted. Furthermore, there is a basic contradiction in the stand taken by the Defendant Revisionist in that if it is predicated that the Trust, as pleaded by the Plaintiff, in fact does not exist, the grant of Leave by the learned Additional District Judge under Section 92 cannot possibly visit any prejudice or injury to the Defendant. In the present case the Revisionist/Defendant has asseverated that the ownership of the suit property has devolved on the Revisionist, namely, Mr. Rajinder Jaipuria in an individual capacity, in which case so far as he is concerned Section 92 does not apply and the grant of permission would be a surplusage. As has already been noted, this Section is intended to protect a Trust from vexatious litigation. When the Defendant adopts the stand that the ownership of the land in question does not vest in a Trust, he cannot be heard to object to permission being granted under this Section.

(3.) Objections, at this stage of the Suit, pertaining to the public or private nature of the Trust alleged to exist by the Plaintiff; and whether the Trust Deed in which Smt. Jai Devi, wife of Rai Sahib Seth Ram Kumar Jaipuria, the Predecessor in Title of the Revisionist as per his own case, pertains to the Suit land also, does not also fall for determination. The earliest occasion when these matters can be considered is only once pleadings have been completed and that too if there is an admission on the subject. Otherwise it can be decided only after the recording of evidence.