TaxTMI 
TaxTMI 
2017 (2) TMI 1571
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....omes up for consideration of this Court in the present matter is whether the High Court, on the basis of analysis of the facts and circumstances of the case and findings of the Court below, while exercising its jurisdiction Under Section 115 of Code of Civil Procedure, 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 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 deed to establish a library and to start a 'Bhyakhan Mala' etc. and the 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....
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....erala High Court in 1992 (2) page 429, Sukumaran v. 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 Code of Civil Procedure before the High Court of Uttarakhand at Nainital, being Civil Revision No. 69 of 2008, for quashing the 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 Code of Civil Procedure to institute suit was set aside and quashed. Hence, this appeal by special leave. 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. 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 permissio....
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.... have 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. 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 Income Tax, Gujarat, Ahmedabad v. Surat Art Silk Cloth Manufacturers' Association, Surat (1980) 2 SCC 31, in paragraph 17, observed: ...Every 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. Further, this Court in M/s. Shanti Vijay and Co. and Ors. v. Princess Fatima Fouzia and 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 concurre....
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....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 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 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 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 f....
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....ave 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 be 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 file an application for revocation of the leave which can be considered on merits and according to law. 17. It is also pertinent to mention the case of B.S. Adityan and Ors. v. B. Ramachandran Adityan and Ors. (2004) 9 SCC 720, wherein this Court opined: 5. In the normal course if an appeal is filed against an order granting permission to a party to file a suit as falling Under Section 92 Code of Civil Procedure, 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 determine the rights of the parties, but only enable a party to initiate a proceeding. Later in para 7 it was held: 7. The learned Counsel for the....
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....ut 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 Code of Civil Procedure to the effect that the court may grant leave under this 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 Shankarlal Aggarwala v. Shankarlal Poddar (1964) 1 SCR 717, to emphasise distinction between administrative and judicial 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. Ratna (1986) 4 SCC 537, to bring out distinction between administrative and judicial order. Scope of Section 92 Code of Civil Procedure was examined in Charan Singh v. Darshan Singh (1975) 1 SCC 298, where the whole case turned on the facts arising in that ....
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....at para No. 10 observed: 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-General, 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 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. 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 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. Accordingl....