BABA BHOOT NATH DHARMART NYAS Vs. TAJANDER SINGH

JUDGEMENT

(1.) The revisionists have preferred the instant revision against the order dated 7-9-2001 passed by the District Judge, Lucknow. The brief facts of the case are that the opposite parties moved an application before the District Judge, Lucknow for leave for the Court for instituting a suit under S. 92 of the Code of Civil Procedure. The opposite parties have alleged in the suit under S. 92 of the Code of Civil Procedure that the petitioner No. 1 is a Public Charitable Trust created for charitable purposes and the revisionists 2 to 4 (defendants 2 to 4) are acting against the true intend that the provisions made in the trust deed and has committed, is committing and also intending to commit breach of trust. The opposite party No. 1 is claiming himself to be a trustee of the trust and the opposite parties 2 to 4 are claiming themselves as the worshippers of the temple and well wishers of the Charitable Trust. The learned District Judge by the order dated 18-1-2001 granted leave under S. 92(1), C.P.C. The revisionists on 7-9-2001 filed preliminary objection about the maintainability of the suit. The learned District Judge after hearing the parties, by the impugned order, rejected the objections filed by the revisionists and held that the prayer granted earlier does not call for any recall. Being aggrieved by the aforesaid order the revisionists have approached this Court.

(2.) Sri Umesh Chandra, Senior Advocate, assisted by Sri H. L. Srivastava appearing on behalf of the opposite parties submits that the grant of leave is an administrative order and as such the instant revision is not maintainable and the ingredients of S. 115, C.P.C. are also not applicable to the facts of the present case. He has relied upon . the decision of Honble the Supreme Court in R. M. Narayana Chettiar v. N. Lakshmanan Chettiar, reported in AIR 1991 SC 221 and the decisions of the High Court in Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah, reported in AIR 1989 All 194; P. V. Mathew v. K. V. Thomas, reported in AIR 1983 Ker 5; and Raju Pillai v. V. P. Paramasivan, reported in AIR 1995 Mad 253.

(3.) Sri K. B. Sinha assisted by Sri Deepak Seth, learned counsel for the revisionists submits that the leave or permission of the Court is an order and as such the revision is maintainable. He further submits that the preliminary objection was filed by the revisionists, which was rejected by the learned District Judge in an arbitrary and illegal manner, without even affording any opportunity to the revisionists to lead evidence. He further submits that Tajender Singh is not the trustees as his resignation was accepted on 20-7-1997 and the leave cannot be granted by the Court to a stranger unless he has interest in the Trust. He has relied upon the judgment of Honble the Supreme Court in R. M.Narayana Chettiar v. N. Lakshmanan Chettiar, reported in AIR 1991 SC 221 and Prabhu Dayal Tewari v. Lakhan Singh, reported in 2001 All LJ 367 : (AIR 2001 All 60).