BASHESHWAR DASS Vs. ZILE SINGH

JUDGEMENT

(1.) THIS revision petition has been directed against the order dated 1.6.1999 passed by Civil Judge (Junior Division), Karnal who dismissed an application of the defendants for revoking the leave already granted to the plaintiffs by order dated 4.4.1995, to file the suit under Section 92(1) and under Order 1 Rule 8 of the Code of Civil Procedure (for short "Code").

(2.) SOME facts can be noticed in the following manner :- A civil Suit for declaration under Section 92(1) as well as under Order 1 Rule 8 of the Code was filed by the plaintiff-respondents on 3.4.1995 and on the same date, along with the plaint, an application was also filed by the plaintiffs vide which permission of the court was obtained for filing the suit under Section 92(1) and under Order 1 Rule 8 of the Code. The permission was granted to the plaintiffs on 4.4.1995 itself, by the trial Court and thereafter notice of the suit was issued to the defendants. So much so, defendant No. 1 filed written statement on 22.8.1996 and on 20.3.1997, the defendants rose from the slumber and made an application that the order dated 4.4.1995 be recalled and the permission which was granted to the plaintiffs to file suit in a representative capacity and under Section 92(1) of the Code be revoked. The application was made mainly on the grounds that the permission was not granted in the first instance; secondly, the Civil Judge (Junior Division) had no jurisdiction to try the suit and thirdly, the suit is only triable by the principal court of original jurisdiction i.e. the court of District Judge. Notice of the application was given to the plaintiff- respondents who filed reply and denied and allegations. The trial Court dismissed the application of defendant No. 1 for reasons given in the impugned order dated 1.6.1999. Not satisfied with the said order, the present revision has been filed.

(3.) REMAINING portion of the section is not being quoted as it is not necessary for adjudication of the controversy in dispute. A reading of the above provisions would show that when a suit is instituted with regard to public charities, such a suit can be instituted by two or more private persons who have interest in the trust and have obtained leave of the court and further that such a suit can be instituted in the principal court of original jurisdiction. Learned counsel appearing on behalf of the petitioner submitted that such a suit cold not be instituted in the court of Civil Judge (Senior Division) and it has to be instituted in the court of District Judge who could assign the same to any other court of competent jurisdiction. In the present case, the suit has been instituted in the court of Civil Judge (Senior Division) and, therefore, its institution is bad. In the alternative, it was argued by the lawyer that a reading of section 92 of the Code would show that permission under Section 92(1) and under Order 1 Rule 8 of the Code is a condition precedent to institute such a suit. The things which ought to be done in the first instance, must necessarily be done in the same fashion. In the present case, the suit has been registered in the first instance and thereafter the permission has been granted and therefore, it is bad in law. In support of his contention, learned Counsel has referred to Thakardwara, Patiala and others v. Nagar Singh and others, 1998(3) RCR(Civil) 496 (P&H) : 1998(3) Civil Court Cases 351 (P&H), wherein it was observed that a suit under Section 92(1) of the Code can only be filed with the permission of the Court and if the permission is not taken, it is not maintainable. It was also observed that it is necessary to have the leave of the court before filing such a suit. If the permission has been obtained during the pendency of the suit and on the basis of the said permission, the respondents if so advised can only bring a fresh suit but they cannot continue with the suit which was not maintainable without permission.