ABDUL HAKIM BAIG Vs. MAHOMED BURRAMMUDIN

JUDGEMENT

(1.) A scheme suit was framed for a mosque at Bezwada in O.S. No. 113 of 1913. Five worshippers at the mosque applied to the Subordinate Court at Bezwada to have the scheme amended. The Subordinate Judge, after taking evidence, has amended the scheme to a considerable extent. This appeal is by the members of the panchayat who were appointed to hold office for life. The question raised in the appeal is whether the following clause in the scheme is ultra vires or intra vires. The provisions of this scheme may be altered or modified as if it were in execution of the decree in this suit on the application of not less than three worshippers resident in Bezwada to the Sub-Court exercising original jurisdiction over the town of Bezwada or in the absence of such Court, the District Court of Kistna.

(2.) The contention of Mr. Ramadoss for the appellant is that this provision is ultra vires. Before considering the question whether such a clause is ultra vires or not, we have to see what the clause means. Under the clause an application can be made as if in execution of the decree. It has been held by the Privy Council in Sevak Jeranchod Bhogilal V/s. Dakore Temple Committee that an order on an application of this kind is not an order on an execution application. In that case, under the decrees the District Court was empowered to frame rules for the working of a scheme. Certain Rule 3 were framed and an appeal was preferred to the High Court against the order of the District Judge. The Privy Council held that no appeal lay against the order of the District Judge. In Ranganath Thathachariyar V/s. Krishnaswamy Thathachariar A.I.R. 1924 Mad. 369, it was held that no appeal lay against the order of appointment of a trustee by the Subordinate Judge in exercise of the power given to him under the scheme. In that case some worshippers interested in the temple presented a petition to the Sub-Court for directions to fill up a vacancy caused by the resignation of a trustee. The Subordinate Judge directed the Board of Supervision to fill up the vacancy. The trustee who is said to have resigned appealed to the High Court. The High Court held that though the order of the Subordinate Judge was a judicial one, it was not passed in execution and therefore no appeal lay. The application of the respondents cannot be considered to be an application in execution. Parties cannot give power to a Court to treat the matter in a particular way. This contention necessarily involves an objection to the maintainability of this appeal. The order passed by the lower Court not being one in execution no appeal lies. It cannot be treated as a decree within the meaning of Section 47. Though in many eases appeals were allowed yet, after the ruling of the Privy Council in Sevak Jeranchod Bhoji Lal V/s. Dakore Temple Committee Courts are incompetent to entertain appeals against orders passed by Subordinate Courts with regard to the alteration of a scheme once settled by the Court. I, therefore, treat this as a revision petition as I consider that the lower Court acted without jurisdiction in altering the scheme.

(3.) The contention of the respondent is that a scheme once framed is always liable to alteration and that the Courts in India have the same power as the Courts of Chancery in England and that Courts can always alter schemes for proper reasons. That the Court has power to alter a scheme cannot be denied. Any schemes framed for the management of a public, charitable, or religious institution or trust can always be altered for proper grounds. The question is whether it should be done as provided by Section 92, or by an application to the Court which framed the scheme. In several schemes provision is made for alteration by an application to the Court by the parties or by persons interested in their working. In the well-known Tirupathi case such a provision was made in the scheme : vide Prayag Doss Ji Vara V/s. Trimai Sreerangacharlu Varu [1907] 30 Mad. 138. The question is whether such a provision gives the Court jurisdiction to alter the scheme on an application made to it. When a scheme is settled the suit comes to an end. To say that any person could apply to alter the scheme once framed would necessarily mean that the suit is pending. It cannot be said that the suit is pending for all time from the mere fact that the scheme framed contains a provision that an application can be made for altering the scheme. Section 92 of the Civil Procedure Code requires the sanction of the Advocate-General or the Collector of the District to enable persons to bring a suit for obtaining directions of the Court for the administration of a trust or for settling a scheme. If it is held that by virtue of a clause in a scheme providing for its alteration on application, the Court can alter the scheme, the provisions of Section 92 would be practically abrogated. When Section 92, Civil P.C. directs that for the settlement of a scheme and for other reliefs the sanction of the Advocate-General should be obtained, it would be ultra vires of any Court to obtain jurisdiction by inserting a clause in the scheme whereby persons interested in the scheme or others are enabled to apply to the Court for the alteration of the scheme. Before a scheme is actually put in working order, it is open to the parties to the suit in which the scheme is framed to apply to have the scheme modified. But where a scheme has to be modified after the suit comes to an end, though the Court has power to alter the scheme it could do so only after the formalities required by law are complied with. The analogy of the English practice cannot be relied upon in support of the contention that such provision is intra vires. In England the Attorney-General or the Relators can apply for the framing of a scheme and for its modification. The Court of Chancery is in London and the Attorney-General is practically, if not actually, in charge of the conduct of the proceedings. But in this Presidency, where there are so many District Courts and Subordinate Courts entitled to act under Section 92 it is impossible for the Advocate-General to have control over persons who obtain permission from him to file suits under Section 92. In practice the persons who obtain permission act independently of the Advocate-General and he very seldom interferes in the conduct of the suit. When Courts find some difficulty or when they think that the help of the" Advocate-General should be obtained they no doubt call upon the Advocate-General to help them. But in the absence of such request from the Court the Advocate-General, does not trouble himself about the conduct of a suit under Section 92. That being so the analogy of the English practice cannot be held to apply to the practice obtaining here. Where a clause in the scheme is opposed to, or contravenes, a specific provision of law, it cannot be said that that clause is intra vires from the mere fact that the Court gives sanction for its inclusion in the scheme. In Narayanamurthi V/s. Achayya Sastrulu A.I.R. 1925 Mad. 411, Spencer Offg. C.J., and Srinivasa Iyengar, J., were of opinion that such a clause was ultra vires having regard to the express provisions of Section 92, Civil P.C. In two cases to which I was a party C.M.A. Nos. 45 of 1923 and 20 of 1925, it was held that such a wide clause as the one in this case was ultra vires of the Court. Spencer and Madhavan Nair, JJ., held the same view in C.M.A. No. 70 of 1925 and in C.R.P. No. 452 of 1924, the learned Chief Justice was of the same opinion. In C.S. No. 430 of 1895, Bakewell, J., held that any relief which was covered by Section 92 should not be dealt with by the Court on an application in the suit in which the scheme was framed.