ORDER
S.M. Ali Mohamed, J.
1. This appeal is against the order of the learned single Judge in Application No. 2548 of 1986 dated 18.7.1986, dismissing the application filed by the appellants/plaintiffs herein to grant leave to institute a suit as contemplated in Section 92 of Civil Procedure Code.
2. The case of the appellants/plaintiffs is as follows:
The Waterbury Memorial Telugu Baptist Church is a public religious trust of which the appellants/ plaintiffs claimed to be members. It is averred that the church was founded hundred years ago and it had been running smoothly ever since. The congregation was the Supreme body in matters of administration of the Trust and the affairs of the church. In order to give a legal structure for the congregation, the Church was registered under the Societies Registration Act, 1860 and as such it came under the purview of the Tamil Nadu Societies Registration Act, 1975. However, those who were in charge of the management of the Trust failed to file certain returns and consequently, the Society was struck off as defunct. This has created an ambiguous situation rendering it as a body, without a constitution. It is alleged further that the first respondent look advantage of the situation and invited non-members into the church and declared the respondents-2,3 and 4 as President, Secretary and Treasurer of the Church and the same was unconstitutional. It was alleged that the respondents 2 to 4 were not even the members of the church as they have not paid their subscriptions. The first respondent taking advantage of the situation had been misusing his office and he had not accounted for the monies received and his accounts were hot supported by vouchers. There were complaints about the mishandling of funds by the defendants. In the above said situation prevailing at that time, the appellants/applicants sought leave to file a suit under Section 92, C.P.C. for framing a scheme.
3. The application was resisted by the respondents. The first respondent who was the Pastor of the Church had averred that he was employed in the aforesaid Waterbury Memorial Telugu Baptist Church to perform the duties of the Pastor and had nothing to do with the disputes between the appellants and the respondents. It is averred that he was appointed pastor by the Church Committee in 1979 and had continued to hold the office ever since. He denied having misused the office or the funds or failed to render accounts. In other respects, he adopted the counter-affidavit filed by the respondents 2 to 4. The second respondent filed a counter-affidavit on his behalf and on behalf of the respondents 3 and 4 and denied all the allegations made by the appellants/plaintiffs as false and frivolous. The second respondent claimed to be the President, the third respondent, the Secretary and the fourth respondent, the Treasurer of the abovesaid Church. It was alleged that previously one D.S. Gamaliel was the President, one P. Immanuel was the Secretary and one P.K. Anandavelu was the Treasurer. A no-confidence motion was passed against him by the general body of the congregation and they were removed. In the election held thereafter on 26.8.1984, the respondents 2 to 4 have been elected as President, Secretary and Treasurer. The aforesaid Immanuel. the former Secretary filed a suit in O.S. No. 6635 of 1986 on the file of the City Civil Court, Madras for a declaration that the election held on 26.8.1984 was null and void. He also filed an application for an order of temporary injunction in I.A. No. 16611 of 1984. The application was dismissed. But the appeal there again was allowed. On revision, this Court in C.R.P. No. 4376 of 1984 set aside the order of the appellate court and confirmed the order of the trial Judge dismissing the application for interim injunction. It was alleged that the former office-bearers have now set up the applicants to file the suit, having failed in their attempt to dislodge the duly elected office-bearers in the election held on 26.8.1984. It was alleged that the former office-bearers and the appellants/applicants herein were also running a parallel church in the same name 100 yards away. It was denied that there was no constitution for Waterbury Memorial Telugu Baptist Church. There was a written constitution and the approved by-laws and the same are in force. It was alleged that as per the constitution, the respondents have been elected and were holding their office. All the allegations of irregularity and mismanagement, were denied.
4. The learned Single Judge dismissed the application filed by the appellants/plaintiffs for leave to institute the suit, under Section 92, C.P.C. The learned single Judge was of the view that even though the Society had been struck off as defunct by the Registrar of Societies on account Of the failure to furnish the returns, it does not mean that the Society has ceased to exist. The Registration is intended only to give a legal structure to the Society in existence and is not indispensable for the existence of the society and held that the Society could exist de hors registration. He has also held that the suit filed under Section 92, C.P.C. was not necessary for the amendment of the constitution and held that it was the right and prerogative of the general body to make suitable amendment to the constitution if need be, and felt that there was no constitution for the trust and as such, scheme could not be entertained. He has also held that there was some motive for the presentation of the suit.
5. We are unable to accept the reasons given by the learned Single Judge to refuse to grant leave to institute the suit, under Section 92, Civil Procedure Code. Section 92, Civil Procedure Code reads as follows:
Public Charities: (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentions or not, 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, to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any parts of the trust property to be let, sold, mortgaged or exchanged;
(g) setting a scheme; or
(h) granting such further of other relief as the nature of the case may require.
6. It is no doubt true that discretion is given to the Court to grant leave or not to grant leave, under Section 92, C.P.C. After amendment of Section 92, C.P.C., under Act 104 of 1976, leave of the court has to be obtained instead of written consent of Advocate-General. The discretion of the court to grant leave or not to grant leave under Section 92, C.P.C. has to be exercised according to known principles of law. In a case law reported in G. Koshy v. Chacko Thomas , the Kerala High Court, after referring to rulings of various High Courts held as follows:
For the application of Section 92, three conditions are necessary, namely,
(1) there must be an express or constructive trust created for public purposes of a charitable or religious nature;
(2) there must be an alleged breach of trust or the direction of the Court should be deemed necessary for the administration of that trust; and
(3) there should be a claim for any of the reliefs specified in sub Clauses (a) to (h) of Section 92(1)-
Thus, it is clear for Section 92 to apply all the three conditions enumerated under the section must co-exist; i.e., there must be an express or constructive trust for public purposes of a charitable or religious nature; there must be an allegation of breach of trust or the direction of the court should be deemed necessary for the administration of such trust; and the suit should have a prayer for any one of the reliefs mentioned in sub-clauses (a) to (h) in Clause (1) of Section 92. If any one of these conditions is not existing, then the suit will not come within the mischief of Section 92.
The Supreme Court in the case reported in Harendranath v. Kaliram Das , has held as follows:
It is well settled by the decisions of this Court that a suit under Section 92 is of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration of the trust. In 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 (See: Pragdasji v. Ishwarlal bhai .
Again in the case reported in Swami Pamianand Saraswati v. Ramji Tripathi , it has held as follows:
A suit under Section 92 is a suit of a Special nature which presupposes the existence of a Public trust of 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. 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 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 (See: Shanmugham v. Govinda A.I.R. 1938 Mad. 92: I.L.R. 1938 Mad. 30: 176 I.C.26, Tirumalai Devasthanams v. Krishnayya (1943)1 M.L.J. 388 : A.I.R. 1943 Mad. 466 (F.B.), Sugra Bibi v. Hazi Kummu Mia and Mulla, Civil Procedure Code, (13th Ed.), Vol.1, p.400). 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.
7. A perusal of the plaint clearly shows that the proposed suit filed under Section 92, C.P.C, relates to a public Trust, by name Waterbury Memorial Telugu Baptist Church and the averments in the plaint are that the Church is a Public Trust, because the beneficiary of the trust form a section of the general public, the church was registered under the Societies Registration Act, 1860 and was struck down by the Registrar of Societies for non-compliance of the statutory requirements, by the office-bearers of the Church as they failed to file the returns since 1963 and hence it had become defunct and accordingly, the Registrar of Societies treated the society as defunct. The plaint therefore makes sufficient averments regarding the religious trust committing breach of trust in not filing the concerned returns and allowing the Society to be struck down by the Registrar of Societies as defunct. There is also a prayer in the plaint, viz., prayer No. 2 which is as follows:
(ii) to frame a scheme for the management of the Waterbury Memorial Telugu Baptist Church, Madras-12 using the earlier constitution as a working document of the Trust having the force of law with certain changes, more particularly given in the prayers (a) to (d).
8. Applying the ratio laid down in the above cases, it is clear that there are sufficient averments in the plaint to the effect that the Church is a religious trust and affairs of the religious trust have not been administered in accordance with the provisions stipulated and there is also a prayer for framing a Scheme. We are of the view that the averments made in the plaint prima facie satisfied the requirement of the suit filed under Section 92, C.P.C., and the learned single Judge erred in not applying the above principles. In the instant case, the learned single Judge has gone into merits of the issues which will not arise at the stage of granting leave or refusal to grant leave under Section 92, C.P.C. We are therefore of the view that the learned single Judge has not applied the correct principles for the exercise of the discretion under Section 92 of the Code of Civil Procedure to grant leave to institute suit. In view of the above, the order of the learned Single Judge is set aside and the matter is remitted to the court below to be disposed of according to law. Under the peculiar circumstances of the case, there is no order as to costs.
