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of <h1>Court finds suit maintainable without Advocate General's sanction, sets aside High Court decree, restores Subordinate Judge's judgment.</h1> <h3>Abdur Rahim Versus Syed Abu Mahomed Barkat Ali Shah</h3> The court held that the suit was maintainable without the sanction of the Advocate General and in the Court of the Subordinate Judge as it did not claim ... - Issues Involved:1. Whether the suit is maintainable in view of the provisions of Sub-section (2) of Section 92 of the Code of Civil Procedure, 1908.2. Whether the suit is barred by the rule of res judicata under Explanation 6, Section 11, Civil Procedure Code.Issue-wise Detailed Analysis:1. Maintainability of the Suit under Section 92 of the Code of Civil Procedure, 1908:The respondents argued that all suits founded upon any breach of trust for public purposes of a charitable or religious nature must be brought in accordance with the provisions of Section 92, Civil Procedure Code. The court noted that the legislature has not enacted such a broad requirement. Section 92, Sub-section (1) specifies that only suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in conformity with its provisions. The reliefs specified in Sub-section (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words 'further or other relief' in Clause (h) can be held to cover them. The court rejected the argument that 'further or other relief' should be interpreted broadly to include any relief related to a breach of trust, emphasizing that these words must be construed to mean relief of the same nature as Clauses (a) to (g).The court further discussed the historical context of Section 92, noting that it replaced Section 539 of the Codes of 1877 and 1882 with certain changes, including the addition of Clauses (a) and (d) in Sub-section (1) and the introduction of Sub-section (2). The court highlighted that Sub-section (2) was enacted to resolve the divergence of opinion regarding whether Section 539 was mandatory for all suits claiming relief mentioned therein. The court concluded that the suit in question did not claim any relief specified in Sub-section (1) of Section 92, and thus, Section 92 was no bar to the maintainability of the suit without the sanction of the Advocate General and in the Court of the Subordinate Judge.2. Res Judicata under Explanation 6, Section 11, Civil Procedure Code:The court examined whether the compromise decree of September 15, 1911, in Suit No. 48 of 1910 precluded the present suit under the rule of res judicata. It was argued that the previous suit, instituted with the sanction of the Advocate General under Section 92, became a representative suit, and the decree in that suit, whether by adjudication or consent, was binding upon the section of the public represented by the plaintiffs in that suit, and therefore upon the plaintiffs in the present suit by virtue of Explanation 6 of Section 11 of the Code.The court disagreed with the High Court's view that the consent decree of 1911 could not be questioned on jurisdictional grounds. It expressed doubt whether a decree passed under the circumstances of this case could be held to be res judicata against any persons other than those who consented to that decree. The court referenced Jenkins v. Robertson, which suggested that persons instituting a suit on behalf of the public have no right to bind the public by a compromise decree, though a decree passed against them on contest would bind the public.The court concluded that, insofar as the nature of the suit was changed by the amendments (adding strangers to the trust as defendants and praying for relief not covered by Section 92), the suit ceased to be of a representative character. Consequently, the decree based on the compromise by six out of the seven plaintiffs in the suit could not bind the rest of the public, and Section 11, Explanation 6, had no application.Conclusion:On both grounds, the arguments for the respondents failed. The court advised that the decree of the High Court be set aside and the judgment and decree of the Subordinate Judge be restored, with costs of the High Court appeal and the costs of this appeal.
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