SWAMI SHIVSHANKARGIRI CHELLA SWAMI & ANR.versusSATYA GYAN NIKETAN& ANR.

                         [2017] 2 S.C.R. 365



    SWAMI SHIVSHANKARGIRI CHELLA SWAMI & ANR.                               A
                                   v.
                 SATYA GYAN NIKETAI\ & ANR.
                   (Civil Appeal No. 3166of2017)
                        FEBRUARY23,2017                                     B

[PINAKI CHANDRA GHOSE AND ASHOK BHUSHAN, :fJ.)
         Code of Civil Procedure, 1908 - s. 92 - Public charities -
Permission to grant leave uls. 92 to interested persons to initiate a
suit - On facts, property transferred-waqfed to respondent no. 2 by
a deed - Appellant interested in achieving the purpose for which
                                                                            c
the property was transferred - Application by appellant uls. 92 to
obtain permission to institute a suit, allowed - However, the High
Court set aside the order - On appeal, held: Property was waqfedl
gifted for a 1Gl1:fiil purpose-a 'trust' - Thus, the application filed by
appellants was within the required ambit of s. 92 and the District          D
Judge rightly permitted the appellants to institute a suit - High Court
erred in setting aside the well reasoned order and in not diligently
examining the facts and circumstances in the light of the registered
deed - Furthermore, it was the statutory duty of the Court to examine
that whether the plaint is so annexed with the application uls. 92
                                                                            E
which is pre-requisite for filing the application for leave to file a
suit - High Court also erred in neglecting this fact - A/legations
put forth could only be determined by way of evidence in a special
suit uls. 92 and respondent No.2 is enjoying the ownership of the
immovable property while acting as a trustee - Thus, for the ends
of justice, appellants granted liberty to move appropriate                  F
application.
        Disposing of the appeal, the Court
        HELD: 1.1 A bare perusal of the Section 92 CPC would
show that a suit can be instituted in respect of a public trust by
the advocate general or two or more persons having an interest              G
in the trust after obtaining leave of the Court in the principal civil
Court of original jurisdiction. An analysis of these provisions would
show that it was con·sidered desirable to prevent a public trust
from being harassed or put to legal expenses by reckless or
                                                                            H
                                365
366            SUPREME COURT REPORTS                      [2017] 2 S.C.R.


A     frivolous suits being brought against the trustees and hence, a
      provision was made for leave of the Con rt having to be obtained
      before the snit is instituted. [Para 12] [371-C-D]
               1.2 On considering the trust deed executed in the favour
      of respondent No.2-Prachaarini Sabha, it is noticed that the
B     purpose of transferring ownership of the property was subject to
      certain conditions and purposes which cast duties on respondent
      No.2, including development of the Hindi Language and opening
      a library. Hence, the purpose is rendering the nature of Sabha to
      be a trust. It can be inferred from the perusal of the application
      made that plea was sought to seek permission only to institute a
c     suit alleging the Sabha to be acting as a trust. [Paras 13, 14) [371-
      E-G]
              1.3 It appears that the property was waq fed/gifted for a
      lawful purpose i.e. a 'trust' is an obligation annexed to the
      ownership of the property, and arising out of a confidence reposed
D     in and accepted by the owner, or declared and accepted by him,
      for the benefit of another, or of another owner, (Act II of 1882
      Trusts, Section 3]. Accordingly, the application filed by the,
      appellants was falling within the required ambit of Section 92 CPC
      and the District Judge rightly permitted the appellants to institute
E     a suit. The High Court erred in setting aside the well reasoned
      order of the Judge and grossly erred in not diligently examining
      the facts and circumstances in the light of the registered deed.
      [Para 18] [377-D-F]
              1.4 The plaint was not annexed with the application filed
 F    under Section 92 CPC which is pre-requisite for filing the
      application for leave to file a suit. Based on the averments in the
      plaint only, it can be inferred that whether an application under
      Section 92 is maintainable or not. [Para 19] (377-G-H]
              1.5 After the amendment was brought to the Code of Civil
 G
      Procedure in 1976, duty was cast upon the Court, instead of
      Advocate General, to take into account these considerations for
      granting leave under this section. Prior to the 1976 amendment,
      all these considerations were to be kept in mind by the Advocate
      General before granting consent to institute a suit against a public
      trust. It was the statutory duty of the Court to examine that
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   SWAMI SHIVSHANKARGIRI CHELLA SWAMI & ANR. v.                       367
               SATYA GYAN NIKETAN

whether the plaint is so annexed with the application under            A
Section 92 CPC or not. The High Court also erred in neglecting
this fact. [Para 20, 21] [378-D-E]
        1.6 The allegations put forth could only be determined by
way of evidence in a special suit under Section 92 and respondent
No.2 is enjoying the ownership of the disputed immovable               B
property while acting as a trustee. Hence, for the ends of complete
justice, the appellants are granted liberty to move appropriate
application in accordance with law, within a period of30 days from
the date of pronouncement of this judgment. The civil courts
having jurisdiction to entertain any suit in this country are
expected to carefully examine applications of such kind. [Para         c
22] [378-F-G]
       Sukumaran v. Akamala Sree Dharma Sastha AIR 1992
       Ker 406; Sugra Bibi v. Haji Kummu [1969] 3 SCR
       83; Additional Commissioner of Income Tax. Gujarat,
       Ahmedabad v. Surat Art Silk Cloth Manufacturers'                D
       Association, Surat (1980) 2 SCC 31 : [1980] 2 SCR
       77; Mis. Shanti Vijay and Co. & Ors. v. Princess
       Fatima Fouzia & Ors. (1979) 4 SCC 602 : [1980) 1
       SCR 459; Harendra Nath Bhatfacharya & Ors. v.
       Kaliram Das (dead) by his Heirs and Lrs. & Ors.                 E
       (1972) 1 SCC 115 : [1972] 2 SCR 492; Swami
       Parmatmanand Saraswati & Am: v. Ramji Tripathi &
       Anr. (1974) 2 sec 695 : [1975] 1 s.cR 790; R.M.
       Narayana Chettiar & Anr. v. N. Lakshmanan Chetfiar
       & Ors. (1991) 1 SCC 48 : [1990] 2 Suppl. SCR 266;
       B.S. Adityan & Ors. v. B. Ramachandran Adityan &                F
       Ors. (2004) 9 SCC 720 : [2004] 1 Suppl. SCR 216 -
       referred to.
                      Case Law Reference
AIR 1992 Ker 406               referred to            Para9            G
[1969] 3 SCR 83                referred to            Para9
[1980] 2 SCR 77                referred to            Para 14
[1980] 1 SCR 459               referred to            Para 14
[1972] 2 SCR 492               referred to            Para 15          H
368            SUPREME COURT REPORTS                            [20 l 7]2 S.C .R.


A     J1975J 1 SCR 790                   referred to               Para 15
      [1990] 2 Suppl. SCR 266            referred to               Para 16
      [2004] 1 Suppl. SCR 216            referred to               Para 17
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3166
B     of20l7.
             From the Judgment and Order dated 01.08.2011 of the High
      Court ofUttarakhand at Nainital in Civil Revision No. 69 of2008.
             Dinesh Dwivedi, Sr. Adv., Ms. Preetika Dwivedi, Krishnam
      Mishra, Yasharth Kant, Nishant Singh, Manish Shankar S., Garvesh
C     Kabra, Advs. for the Appellants.
             Pramod Swaroop, Sr. Adv., Jatinder Kumar Bhatia, Krishna
      Prakash Dubey, Advs. for the Respondents.
              The Judgment of the Court was delivered by
D             PINAKI CHANDRA GHOSE, J. l. Leave granted.
              2. This appeal, by special leave, has been filed by the present
      appellants against the judgment and order dated August 1st, 20 l l passed
      by the High Court ofUttarakhand at Nainital in Civil Revision No.69 of
      2008, whereby the revision petition filed by the respondents herein was
E     allowed and consequently the application filed by the appellants under
      Section 92 of the Code of Civil Procedure (in short 'CPC') for obtaining
      permission to institute a suit was rejected.
               3. The question which comes up for consideration of this Court
      in the present matter is whether the High Court, on the basis ofanalysis
 F    of the facts and circumstances of the case and findings of the Court
      below, while exercising its jurisdiction under Section 115 of CPC, was
      justified in setting aside the order granting permission to initiate suit.
              4. The facts of the case succinctly stated are that in the year
      1936, one Sri Swami Satya Dev purchased some land and constructed a
G     building thereon. Thereafter on 30.11.1940, he waqfed (gifted) the
      disputed property to Respondent No.2, vide registered deed, with the
      express condition that Respondent No.2 will not have a right to mortgage
      or right of sale of the property. The property was waqfed for the
      development and publicity of the 'Hindi Language' in western India and
      to establish a centre for publicity of Hindi. There was also a recital in the
H
   SWAMI SHIVSHANKARGIRI CHELLA SWAMI v. SATYA                               369
  GYAN NIKETAN & ANR. [PINAKI CHANDRA GHOSE, J.]

deed to establish a library and to start a 'Bhyakhan Mala' etc. and the      A
property was to be managed by a sub-samiti constituted by respondent
No.2.
        5. It appears that objective of transferring the property was to
achieve a specific purpose i.e., publicize and develop the Hindi Language.
When it was felt that respondent No.2 was not taking any interest in          B
achieving the purpose for which the property was dedicated, the appellants
desired to initiate civil proceedings against the respondent. One Sri
Mukurtd Ram and Sri Krit Ram filed Application No.23/2004 under
Section 92 ofCPC and the appellants herein filed Application No.07/
2006.under the same provision, respectively, seeking permission to file a
suit against the respondents herein in connection with the disputed
                                                                              c
property. Since same relief was sought in both the petitions, both
applications were consolidated and Misc. Case No.23/2004 was made.
the leading case. The learned District & Sessions Judge vide his order
dated 12.11.2008 observing that the word "trust" is to be liberally
construed, and in a sense as favourable as possible to the assumptions        D
ofjurisdiction by a Court under Section 92, allowed both the applications
and permitted the appellants to file suit under Section 92 of CPC. The
learned District & Sessions Judge observed that the object of dedication
of the property shall decide the nature of it being considered a trust.
Relevant part of the order is reproduced as follows:
                                                                              E
        "Hence perusal of the deed reveals the purpose to waqf the
        property was charitable and for the benefit ofpublic at large.
        Hence prima facie it appears that a constructive trust was
        created by Swami Satya Dev by gifting the property to O.P.
        No.2, in which all the objects of the waqf and the
        management of property was given. "                                   F

        In the later part of the order it was observed that:
        "Having gone through the entire evidence on record, I am of
        the view that prima facie it appears that property in suit was
        waqfied to the O.P. No.2 for a particular object and purpose          G
        i.e. publicity and development of Hindi. The property is to
        be managed by O.P. No.2 as per directions of Swami Satya
        Dev - recitals of the deed prima facie proves that Sri Satya
      . Dev created a constructive trust by gifting the property to
        O.P. No.2 has not become exclusive owner of the same,
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370             SUPREME COURT REPORTS                          [2017] 2 S.C.R.


A             because it was gifted with conditions i.e. O.P. No.2 has no
              right to sale or mortgage the property.
              So far as this fact is concerned that O.P. No.2 is the
              registered society under the Indian Registration Act, 1960,
              does not affect the maintainability of the suit as held by the
B             Kera/a High Court in J 992 (2) page 429, Sukwnaran Vs.
              Akamala Sree Dharma Sastha."
              6. Being aggrieved by the order. of the learned District & Sessions
      Judge, the respondents filed civil revision under Section 115 of CPC
      before the High Court ofUttarakhand at Nainital, being Civil Revision
c     No.69 of2008, forquashingthe order dated 12.11.2008 passed by learned
      District & Sessions Judge, Haridwar. The· said revision petition was
      allowed by the High Court vide its judgment dated August 1st, 2011,
      whereby the order granting permission under Section 92 CPC to institute
      suit was set aside and quashed. Hence, this appeal by special leave.

D             7. We have carefully examined the registered deed dated
      30.11.1940 whereby the disputed property was transferred on certain
      conditions. The very first question after the perusal of the deed comes
      before us is whether a trust can be created by virtue of a conditional
      gift.

E             8. We have heard learned counsel for the parties at length. Since
      the appellant was interested in achieving the purpose for which property
      was transferred and therefore he approached the Court of learned District
      Judge for seeking permission to file a suit against the Respondents. It is
      also not disputed that the property was transferred (waqjed) to
      Respondent No.2 vide registered deed dated 30.11.1940.
F
              9. It is submitted by the counsel of the petitioners that the mere
      fact that Respondent No.2 is a registered society does not affect the
      maintainability of the suit in view of the judgement given in the case of
      Sukumaran Vs. Akamala Sree Dharma Sastha, AIR 1992 Ker 406;
      Sugra Bibi Vs. Haji Kummu, [1969] 3 SCR 83; 1940 PC (10).
G
              I 0. Lastly, it was a case of breach of administration of trust
      and the same can be decided by way of evidence and that while granting
      leave the Court does not decide the right of the parties or adjudicate
      upon the merits of the case. The only consideration relevant at such
      juncture is whether there is a primafacie case for granting leave to file
H
    SWAMI SHIVSHANKARGIRI CHELLA SWAMI v. SATYA                                   371
   GYAN NIKETAN & ANR. [PINAKI CHANDRA GHOSE, J.)

a suit and in the light of this submission the High Court was not justified        A
in neglecting the prima facie case of the appellants.
         11. Per contra, it is argued by the counsel for Respondents that
society Kashi Nagari Sabha is a registered society and is also the absolute
owner of the property ofSatya Gayan Niketan Ashram, Jwalapur and
cannot be considered as a trust and the High Court has rightly allowed             B
the revision of the respondents. However, it appears to us that the present
case deals only with the issue of granting leave under Section 92 of
CPC to interested persons to initiate a suit.
         12. The present Section 92 of the CPC corresponds to Section
539 of the old code of 1883 and has been borrowed in part from 52 Geo              c
3 c 101, called Romilly's Act of the United Kingdom. A bare perusal of
the said section would show that a suit can be instituted in respect of a
public trust by the advocate general or two or more persons having an
interest in the trust after obtaining leave of the Court in the principal civil
Court oforiginaljurisdiction. An analysis of these provisions would show
that it was considered desirable to prevent a public trust from being              D
harassed or put to legal expenses by reckless or frivolous suits being
brought against the trustees and hence a provision was made for leave
of the Court having to be obtained before the suit is instituted.
         I 3. After considering the deed executed in the favour of
respondent No.2 (Prachaarini Sabha), which is not in dispute, we have              E
noticed that the purpose of transferring ownership of the property was
subject to certain conditions and purposes which cast duties on respondent
No.2, including development of the Hindi Language and opening a library.
Hence, the purpose is rendering the nature of Prachaarini Sabha to be a
trust.                                                                             F
         14. In the present facts and circumstances, it can be easily inferred
from the perusal of the application made that plea was sought to seek
permission only to institute a suit alleging the Sabha to be acting as a
trust. This Court in Additional Commissioner of/11co111e Tax, Gujarat,
Altmetlabad Vs. Surat Art Silk Cloth Manufacturers' Association,                   G
Surat, ( 1980) 2 SCC 31, in paragraph 17, observed:
        " ... Eve1y trust or institution must have a purpose for which
        it is established and every purpose must for its
        accomplishment involve the carrying on of an activity. "
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372            SUPREME COURT REPORTS                        [2017] 2 S.C.R.



A            Further, this Court in Mis. S!tanti Vijay and Co. & Ors. Vs.
      Princess Fatima Fouzia & Ors., (1979) 4 SCC 602, observed:
             "The law governing the execution of trusts is well settled. In
             the case of a private trust, where there are more trustees
             than one, all must join in the execution of the trust. The
B            concurrence of all is in general necessary in transaction
             affecting the trust property, and a majority cannot bind the
             trust estate. In order to bind the trust estate, the act must be
             t!te act of all. They constitute one body in the eye of law,
             and all must act together. This is, of course, subject to any
             express direction given by the sett/or. "
c
              15. This Court while discussing the scope and applicability of
      Section 92 of CPC in the case of Harendra Nat!t Bhattac!tarya &
      Ors. Vs. Kaliram Das (dead) by !tis Heirs and Lrs. & Ors., ( 1972) 1
      sec 115, observed in para 13:
D            "It is well settled by the decisions of this Court that a suit
             under Section 92 is of a special nature which presupposes
             the existence of a public trust of a religious or charitable
             character. Such suit can proceed only on the a/legation that
             there is a breach of such trust or that directions from the
             Court are necessary for the administration of the trust. In
E            the suit, however, there must be a prayer for one or other of
             the reliefs that are specifically mentioned in the section. Only
             then the suit has to be filed in conformity with the provisions
             of Section 92 of the Code of Civil Procedure. It is quite clear
             that none of the reliefs claimed by the plaintiffs fell within
 F           the section. The declarations which were sought could not
             possibly attract the applicability of Section 92 of the Civil
             Procedure Code. The High Court was, therefore, right in
             holding that non-compliance with that section did not affect
             the maintainability of the suit. "
              Further, in the case of Swami Parmatmanand Saraswriti &
 G
      Anr. Vs. Ramji Tripatlii & Anr., (1974) 2 SCC 695, while precluding
      the application of Section 92 of CPC on suits to vindicate personal or
      individual rights, this Court pointed out as under:
             "I 0. A suit under Section 92 is a suit of a special nature
H
   SWAMI SHIVSHANKARG!RI CHELLA SWAMI v. SATYA                               373
  GYAN NIKETAN & ANR. [PINAKI CHANDRA GHOSE, J.]

       which presupposes the existence of a public Trust of a                 A
       religious or charitable character. Such a suit can proceed
       only on the allegation that there was a breach of such trust
       or that the direction of the Court is necessary for the
       administration of the trust and the plaintiff must pray for
       one or more of the reliefs that are mentioned in the section.
                                                                              B
       It is, therefore, clear that if the allegation of breach of trust
       is not substantiated or that the plaintiff had not made out a
       case for any direction by the Court for proper administration
       of the trust, the very foundation of a suit under the section
       would fail; and, even if all the other ingredients of a suit
       under Section 92 are made out, if it is clear that the plaintiffs      c.
       are not suing to vindicate the right of the public but are
       seeking a declaration of their individual or personal rights
       or the individual or personal rights of any other person or
       persons in whom they are interested, then the suit would be
       outside the scope of Section 92. A suit whose primary object
                                                                              D
       or purpose is to remedy the infringement of an individual
       right or to vindicate a private right does not fall under the
       section. It is not every suit claiming the reliefs specified in
       the section that can be brought under the section but only
       the suits which, besides claiming any of the reliefs are brought
       by individuals as representatives of the public for vindication        E
       of public right, and in deciding whether a suit falls within
       Section 92, the Court must go beyond the reliefs and have
       regard to the capacity in which the plaintiffs are suing and
       to the purpose for which the suit was brought. This is the
       reason why trustees of public trust of a religious nature are
       precluded from suing under the section to vindicate their              F
       individual or personal rights. It is quite immaterial whether
       the trustees pray for declaration of their personal rights or
       deny the personal rights of one or more defendants. When
       the right to the office of a trustee is asserted or denied and
       relief asked for on that basis, the suit falls outside Section         G
       92."
       16. Moreover, while discussing the giving of notice to the proposed
defendants in any matter before the granting ofleave under Section 92
of CPC, this Court in R.M. Narayana Chettiar & Anr. Vs. N.
                                                                              H
374           SUPREME COURT REPORTS                         [20 I 7] 2 S.C.R.



A     lakshmanan Chetfiar & Ors., (1991) I SCC 48, noted in para 17
      that -
            "A plain reading of Section 92 of the Code indicates that
            leave of the court is a pre-condition or a condition precedent
            for the institution ~fa suit against a public trust for the
B           reliefs set out in the said section: unless all the beneficiaries
            join in instituting the suit, if such a suit is instituted without
            leave, it would not be maintainable at all. Having in mind
            the objectives underlying section 92 and the language
            thereof, it appears to us that, as a rule caution, the court
            should normally, unless it is impracticable or inconvenient
c           to do so, give a notice to the proposed defendants before
            granting leave under Section 92 to institute a suit. The
            defendants could bring to the notice of the court for instance
            that the allegations made in the plaint are frivolous or
            reckless. Apart from this, they could, in a given case, point
D           out that the persons who are applying for leave under Section
            92 are doing so merely with a view to harass the trust or
            have such antecedents that it would be undesirable to grant
            leave to such persons. The desirability of such notice being
            given to the defendants, however, cannot be regarded as a
            statutory requirement to be complied with before leave under
E           Section 92 can be granted as that would lead to unnecessary
            delay and, in a given case, cause considerable loss to the
            public trust. Such a construction of the provisions of Section
             92 of the Code would render it difficult for the beneficiaries
            of a public trust to obtain urgent interim orders from the
 F          court even though the circumstances might warrant such
            relief being granted. Keeping in mind these considerations,
             in our opinion, although, as a rule of caution, court should
             normally give notice to the defendants before granting leave
             under the said section to institute a suit, the court' is not
             bound to do so. If a suit is instituted on the basis of such
 G           leave, granted without notice to the defendants, the suit
             would not thereby he rendered bad in law or non-
             maintainable. The grant of leave cannot be regarded as
             defeating or even seriously prejudicing any right of the
             proposed defendants because it is always open to them to
H
   SWAMI SHIVSHANKARGIRI CHELLA SWAMI v. SATYA                               375
  GYAN NIKETAN & ANR. (PINAKI CHANDRA GHOSE, J.]

       file an application for revocation of the leave which can be          A
       considered on merits and according to law. "
         17. It is also pertinent to mention the case of B.S. Adityan &
Ors. Vs. B. RamachandranAdityan & Ors., (2004) 9 SCC 720, wherein
this Court opined:
       "5. In the normal course if an appeal is filed against an              B
       order granting permission to a party to file a suit as falling
       under Section 92 CPC, we do not normally interfere with an
       order made by the High Court nor do we think of entertaining
       a proceeding of this nature under Article 136 of the
       Constitution because the order made thereunder will not                c
       determine the rights of the parties, but only enable a party
       to initiate a proceedinf!,. "
        Later in para 7 it was held:
       "7. The learned counsel for the appellants urged that the
       order that was passed under Section 92 CPC granting                    D
       pern1ission to file a suit is lvhether adn1inistrative in character
       or otherwise; that this does arise when the objections of the
       defendants are considered: that as to scope of the meaning
       of the expression "order, judgment, decree and
       adjudication". He drew our attention to decision in                    E
       Pitchayya v. Venkatakrishnamacharlu, (AIR 1930 Mad. 129)
       to the effect that the object of Section 92 CPC is to safeguard
       the rights of the public and of institutions under trustees. In
       this regard, he specifically drew our attention to National
       Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd.,
       ( 1953 SCR 1028). He also adverted to decision in RMA.R.A.             F
       Adaikappa Chettiar v. R. Chandrasekhara Thevar (AIR 1948
       PC 12) to contend that where a legal right is in dispute and
       the ordinary courts of the country are seized of such dispute,
       the courts are governed by ordinary rules of procedure
       applicable thereto and an appeal lies if authorised by such            G
       rules, notwithstanding that the legal right claimed arises
       under a special stature which does not in terms confer a
       right of appeal. In R.M Narayana Chettiar 1( N. Lakshmanan
       Chettiar (l 991) 1 SCC 48, this Court has examined in detail
       the scope of Section 92 CPC and explained the object
                                                                              H
376    SUPREME COURT REPORTS                          [20 l 7] 2 S.C.R.


A     underlying therein in granting permission to file a suit. In
      this case, this Court held that court should normally give
      notice to the defendants before granting leave as a rule of
      caution but court is not bound to do so in all circumstances
      and non-issuance of notice would not render the suit bad or
      non-maintainable and the defendants can at any time apply
B
      for revocation of the leave, and provision under Section
      104(l)(jfa) for appeal against reji1sal of grant of leave does
      not lead to a different conclusion. In the light of this decision,
      we do not consider it necessary to advert to other decisions
      cited by the learned counsel. More so, the matter was
c     considered by the Law Commission in its report submitted in
      April 1992 on this aspect of the matter. After noticing various
      decisions of different courts and the decision in R.M
      Narayana Chettiar case the Law Commission recommended
      that to expect the court to issue notice and then to try the
      several points of detail before granting leave in the light of
D
      the objections put forth by the respective defendants, would
      mean that there will be a trial before trial and this would not
      be desirable. The recommendation of the Law Commission
      was, therefore, to insert an explanation below Section 92
      CPC to the effect that the court may grant leave under this
E     section without issuing notice to any other person, but this
      does not, of course, mean that the court will grant leave as
      a matter of course. Particular emphasis is made and heavy
      reliance is placed on the decision of this Court in Shankar/al
       Aggarwa/a v. Shankar/al Poddar (1964) l SCR 717, to
      emphasise distinction between administrative and judicial
 F
      orders. It is urged that order from which the appeal was
       preferred was not a judgment within the meaning of clause
       15 of the Letters Patent and so no appeal lies to the Division
       Bench. Reference is made to the decision of this Court in
       Institute of Chartered Accountants of India v. L.K. Raina
G      ( l 986) 4 sec 53 7' to bring out distinction between
       administrative and judicial order. Scope of Section 92 CPC
       was examined in Charan Singh v. Darshan Singh (1975) l
       sec 298, where the whole case turned on the facts arising in
       that particular case. "

H
   SWAMI SHIVSHANKARGIRI CHELLA SWAMI v. SATYA                                377
  GYAN NIKETAN & ANR. [PINAKI CHANDRA GHOSE, J.]

        And lastly, it was opined by this Court in para No.9:                 A
       " ... Although as a rule of caution, court should normally give
       notice to the defendants before granting leave under the
       said section to institute a suit, the court is not bound to do
       so. If a suit is instituted on the basis of such leave, granted
       without notice to the defendants, the suit would not thereby           B
       be rendered bad in law or non-maintainable. Grant of leave
       cannot be regarded as defeating or even seriously
       prejudicing any right of the proposed defendants because it
       is always open to them to file an application for revocation
       of the leave which can be considered on merits and
       according to law or even in the course of suit which may be             c
       established that the suit does not fall within the scope of
       Section 92 CPC. In that view of the matter, we do not think,
       there is any reason for us to interfere with the order made by
       the High Court".
         18. We have noticed that the trust deed was executed in favour        D
of the respondents. But it appears in view of the facts and circumstances
of this case and the submissions made on behalf of the respondents, that
it was waqfed/gifted for a lawful purpose i.e. a "trust" is an obligation
annexed to the ownership of the property, and arising out of a confidence
reposed in and accepted by the owner, or declared and accepted by him,         E
for the benefit of another, or of another owner, (Act II of 1882 Trusts,
Section 3]. Accordingly, in our opinion, the application filed by the
appellants was falling within the required ambit of Section 92 of CPC
and the learned District Judge had rightly permitted the appellants to
institute a suit. We are of the considered opinion that High Court has
erred in setting aside the well reasoned order of the learned Judge and        F
grossly erred in not diligently examining the facts and circumstances in
the light of the registered deed dated 30. I l.l 940.
         19. Apart from the above discussion, we have also taken notice
of the fact that plaint was not annexed with the application filed under
Section 92 of the CPC which is pre-requisite for filing the application for    G
leave to file a suit. Based on the averments in the plaint only, it can be
inferred that whether an application under Section 92 is maintainable or
not. This Court in the case of R.M Narayana Chettiar (supra) at
para No.10 observed:
                                                                              H
378                SUPREME COURT REPORTS                       [2017] 2 S.C.R.


A             "Neither of the aforesaid decisions of this Court deal with
              the question as to whether, before granting leave to institute
              a suit under section 92. Advocate-Genera/, or later the
              Court, was required to give an opportunity to the proposed
              defendants to show cause why leave should not be granted.
              What learned counsel for the appellants urged, however, was
B
              that these decisions show that at the time when the Advocate-
              General or the Court is required to consider whether to grant
              leave to institute a suit as contemplated under section 92, it
              is only the averments in the plaint which have to be examined
              and hence, the presence of the defendant is not necessary.
c             We may now consider the High Court decisions relied on by
              the learned counsel for the appellants. "
               20. After the amendment was brought to the Code of Civil
      Procedure in 1976, duty was cast upon the Court, instead of Advocate
      General, to take into account these considerations for granting leave
D     under this section. Prior to the 1976 amendment, all these considerations
      were to be kept in mind by the Advocate General before granting consent
      to institute a suit against a public trust.
              21. Accordingly, in this factual matrix and the law laid down by
      this Court and other relevant judicial precedents, we hold that the learned
E     Single Judge erred while granting leave to the appellants. It was the
      statutory duty of the Court to examine that whether the plaint is so
      annexed with the application under Section 92 CPC or not. We have
      noticed that High Court has also erred in neglecting this fact.
               22. From a perusal of the compete material on record, in our
 F    opinion, the allegations put forth could only be determined by way of
      evidence in a special suit under Section 92 and respondent No.2 is enjoying
      the ownership of the disputed immovable property while acting as a
      trustee. Hence, for the ends of complete justice, the appellants are granted
      liberty to move appropriate application in accordance with law, within a
      period of 30 days from the date of pronouncement of this judge.nent.
G     Civil Courts havingjurisdiction to entertain any suit in this country are
      expected to carefully examine applications of such kind as discussed
      above. This appeal is disposed of in above-noted tenns.


      Nidhi Jain                                                 Appeal disposed of.
H