Reserved
A.F.R.
Case :- CIVIL REVISION No. - 245 of 1997
Petitioner :- Gauri Shankar Saragi & Another
Respondent :- Sharda Prasad Dwivedi & Another
Petitioner Counsel :- R.S. Mishra,K.Shailendra,Ravi Kiran Jain
Respondent Counsel :- A.K.Tiwari,B.D.Mandhyan,R.K. Porwal, Satish
Mandhyan
Hon'ble Pankaj Mithal, J.
Ram Kishan Dass, Har Kishan Das Saraogi is a public trust of
religious and charitable nature created for the Hindu public. The said
trust owned properties mentioned in Schedules ‘A’ and ‘B’ of the
proposed plaint i.e. house no.165, 167 situate at M.G.Road, Clacutta in
Schedule ‘A’ and house no.1/67 Peepal Mandi, Agra in Schedule ‘B’.
The two applicants/opposite parties both residents of Agra
applied for leave of the court at Agra to institute a suit under Section 92
C.P.C. for removal of the existing trusties two in number, both residents
of Calcutta and for appointment of new trusties as well as for directing
rendering of accounts of the trust. The application for grant of leave to
file proposed plaint was opposed by the defendant/revisionists herein.
One of the objection was that the property at Agra is no more in
existence as it has been sold under the orders of the Calcutta High
Court dated 28.4.1988, therefore, the application for leave is not
maintainable.
The Additional District Judge, Agra vide judgment and order
dated 12.8.1997 allowed the application and granted permission to file
the suit under Section 92 C.P.C. Aggrieved by the aforesaid order, the
defendants have preferred this civil revision under Section 115 C.P.C.
I have heard Sri Ravi Kiran Jain, Senior Advocate assisted by Sri
Kshitij Shailendra for the defendant/revisionists and Sri B.D.Mandhyan,
Senior Advocate assisted by Sri Tarun Gaur for the plaintiff
(applicant)/opposite parties.
The basic argument of Sri Jain is that the impugned judgment
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and order is without jurisdiction. The Court at Agra had no jurisdiction to
grant leave for institution of suit under Section 92 C.P.C. as no part of
the property of the trust was situated in Agra at the relevant time.
Sri Mandhyan has countered the above argument by submitting
that in fact one of the properties of the trust was at Agra and the illegal
sale of the same would not affect the jurisdiction of the Court. He has
further submitted that though no relief in respect of the property sold has
been claimed in the proposed suit, nonetheless the action of the
trustees in its sale was determintal to the trust as well as public at large
therefore, a suit under Section 92 C.P.C. with the leave of the Court is
maintainable.
Section 92 C.P.C. provides that where in a trust created for public
charitable or religious nature there is any breach of such trust, the
Advocate General or two or more persons having an interest in the trust
with the leave of the court may institute a suit for a decree for the
purposes specified therein including that of removal and appointment of
trustees and rendering of the accounts. Thus, from the plain language of
the aforesaid provision it is apparent that two persons having interest in
the trust have a right to maintain a suit under Section 92 C.P.C. with the
leave of the Court. However, the moot question which arises for
consideration is as to which court is empowered to grant leave for
institution of such suit or as to before which court such a suit would be
maintainable.
In order to answer the above question, it would again be
beneficial to refer to the provision of Section 92 C.P.C. itself which also
provides the forum where such a suit is to be instituted. It lays down that
a suit may be instituted in the principal Civil Court of original jurisdiction
or in any other Court empowered in that behalf by the State Government
within the local limits of whose jurisdiction the whole or any part of the
subject-matter of the trust is situate. Thus, such a suit can be instituted
either:
(1) in the competent court of original jurisdiction; or
3(2) in any other court empowered in that behalf by the State
Government;
provided that such a court ought to be one within whose local
limits of jurisdiction the whole or any part of subject matter of the trust is
situate.
This above second part of Section 92 C.P.C. is most important
and relevant for the purposes of determining the jurisdiction of the civil
court where a suit is to be instituted. It has to be a court where whole or
any part of the subject matter of the trust is situate. This part refers and
qualifies both the courts mentioned in the first part.
The subject matter of the trust in the instant case could have
been the two properties one at Calcutta and the other at Agra. The
property at Agra having been sold much before the application for leave
to institute the suit was moved only the property at Calcutta was left with
the Trust. Thus, on the date on which the application for leave was
moved there was no property of the trust or any part of the subject
matter of the trust at Agra. Therefore, to my mind, the court at Agra
lacked inherent jurisdiction for entertaining the suit under Section 92
C.P.C. or to grant leave to to two or more persons to institute such a
suit.
It is also relevant to note that the trustees against whom the suit
is being proposed to be instituted are also not residing within the
jurisdiction of the Court at Agra.
The view taken by me finds support from a decision of the Privy
Council Bilasrai Joharmal and another Vs. Shivnarayan Sarupchand
and others AIR (31) 1944 PC 39 wherein the Lordships observed that
the Court will not take upon itself the task to interfere with the
administration of a charity when the charity has to be conducted in a
different land outside the courts jurisdiction where the court is not in a
position to supervise its administration effectively.
Sri Mandhyan had made a feeble attempt to defend the impugned
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judgment and order by saying that no such specific plea with regard to
the jurisdiction was raised by the defendant/ revisionists in the court
below and, therefore they cannot be permitted to raise it for the first time
in the revision.
I am not at all impressed by the aforesaid submission. First, for
the reason that there is a specific reference of such a plea in the
impugned judgment itself. The impugned judgment refers to it in
paragraph 3 as well as in paragraph 10 wherein it is mentioned that the
property at Agra has been sold with the permission of the High Court at
Calcutta and, therefore, the plaintiff/applicants have no right to file
application under Section 92 C.P.C. Secondly where the question of
jurisdiction goes to the very root of the matter, the plea of jurisdiction
even if it has not been specifically raised in the court below, it can
always be permitted to be raised in appeal/revision or even at any
subsequent stage including that execution of the decree.
Their Lordships of the Privy Council in Ram Lal Hargopal Vs.
Kishanchandra and others 1924 PC 95 ruled that an objection to the
jurisdiction, however late in the day may be raised, if on the facts
admitted or proved it is manifest that there is a defect of jurisdiction.
Again in the case Kiran Singh and others Vs. Chaman Paswan
and others AIR 1954 SC 340 three Hon’ble Judges of the Supreme
Court went on to observe as under:
“It is a fundamental principle that a decree passed by a
Court without jurisdiction is a nullity and, that its invalidity could
be set up whenever and wherever it is sought to be enforced or
relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject-matter of the
action, strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent of
parties.”
A similar view has been expressed by the Supreme Court in
Most. Re. P.M.A. and others Vs. Moran Mar Marthoma and another
AIR 1995 SC 2001 wherein the Court observed that plea of absence of
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jurisdiction of civil court can be raised and entertained at any stage.
In view of above facts and circumstances, I am of the opinion that
the court below in passing the impugned judgment and order granting
leave to the plaintiff (applicant)/opposite parties to institute the suit under
Section 92 C.P.C. acted completely without jurisdiction as admittedly no
part of the subject matter of the trust was situate at Agra at the relevant
time.
Accordingly, the impugned judgment and order dated 12.8.1997
passed by the Ist Additional District Judge, Agra in Misc. Case No.417
of 1994 between Sharda Prasad Dwivedi and another and Gauri
Shankar Saraogi and another suffers with jurisdictional error and is set
aside. Consequently, the application for leave to institute the suit stands
rejected.
This revision as such is allowed.
No order as to costs.
Dt: July 21, 2010
BK/