JUDGMENT
Kumar Rajaratnam, J.
1. This Civil Revision Petition is filed by the 6th respondent in Misc. case No. 668/89 against the order dated 02.07.1991 passed by the Prl. Civil Judge, Metropolitan area, Bangalore, allowing I.A.No. III filed Under Order 1 Rule 8 of CPC.
2. The facts of the case very briefly are that :
3. The respondents 1 to 5 in this Civil Revision Petition who are petitioners in Misc. Petition 668/89 filed an application under Section 92 read with Section 151 of CPC in the Court of the Principal City Civil Judge, Bangalore, praying for grant of leave to them to institute a suit against the respondents and sought direction of the Court for forming a proper scheme for the management of the affairs of the Trust, appointment of Trustees and other reliefs. The case of the respondents 1 to 5 who are the petitioners in Misc. case 668/89 was that there is a Public Trust called Arasappa Choultry situated in Nagarthapet, Bangalore meant for the benefit of the Nagartha Community. The said trust was created under a will of the donor-testator and there has been mismanagement of the affairs of the Trust and therefore Misc. Petition 668/89 was filed.
4. During the pendency of application under Section 92 read with Section 151 CPC, an application was filed by respondents 1 to 5 stating that some other members of the community may not be aware of such proceedings and hence, they might not have taken part in the proceedings and according to the said respondents 1 to 5, since it is a Public Trust and meant for public, there is nothing illegal if the public are notified under Order 1 Rule 8 of CPC. The case of the petitioner in Misc. case. 668/90 was that earlier application under Section 92 filed by some other persons for identical reliefs were rejected by the Court and an appeal is pending. According to the said petitioner in Misc. case. 668/89 if this application under Section 92 CPC is dismissed, some more persons may file similar applications. In order to decide the matter once and for all, it was contended by them that the public must be notified under Order 1 Rule 8 of CPC so that the litigation can be disposed of once and for all. The Trial Court was pleased to allow IA.No. 3 in Misc.Case No. 668/1989 and permitted to take notice under Order 1 Rule 8 of CPC by getting a notice published in a widely circulated Kannada Newspaper at Bangalore by mentioning the words that the petition is in respect of ‘an alleged public trust’ and inviting the interested members of the public to join the proceedings. The 6th respondent in the said Misc. case being aggrieved by the order of the trial Court in IA.No. 3 of Misc. 668/1989 has preferred this Civil Revision Petition.
5. The learned Counsel for the petitioner – 6th respondent submits that the respondents 1 to 5 who filed an application under Section 92 of the Code of Civil Procedure were not eligible to file an application under Section 92 CPC and the Trial Court has held that there is no mismanagement of the Trust. The petitioners in that suit took the matter by way of appeal and the defendant also took the matter by way of cross-objections, where the Appellate Court in M.F.A. 2020/90 held that it is not a Public Charitable Trust and does not come under Section 92 jurisdiction. The petitioners in the suit, who filed Section 92 application, then took the matter to the Supreme Court and it is stated by the learned Counsel for the petitioner that the Special Leave Petition was also dismissed. Therefore, according to the learned Counsel for the petitioner/6th respondent the matter is concluded by the Decision of the Supreme Court and therefore, nothing survives in this Section 92 application itself, muchless the order passed in Misc.Case No. 668/89 in so far as it relates to issue of notice under Order 1 Rule 8 of the Code of Civil Procedure. Section 92(1) C.P.C. reads as follows:
“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 contentious 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 enquiries;
e) declaring what proportion of the trust property or of the interest therein shall be allotted to any particular object of the trust;
f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
g) settling a scheme; or
h) granting such further or other relief as the nature of the case may require.”
6. A perusal of Section 92 C.P.C. makes it clear that for entertainment of an application under Section 92 C.P.C., the respondent should be a charitable institution or a religious institution and the persons who move the application must have an interest in the Trust and must have obtained the leave of the Court or such application can be moved by the Advocate General. Once leave is granted after enquiry, the Courts are entitled to grant any relief in conformity with Section 92 CPC and no more. Section 92 CPC does not confine itself to the parties of the application, it applies to the, entire management of the Trust which shall be binding on all people. Therefore in the very concept of an application under Section 92 CPC, there is no necessity of invoking Order 1 Rule 8 of CPC. This view is affirmed by a Division Bench Judgment of the Bombay High Court reported in AIR 1941 Bombay 317, Bapugowda Yadgouda Patil and Ors. v. Vinayak Sadashiv Kulkarni and Ors., where the Court has held:
“The procedure laid down in Order 1 Rule 8 need not be followed in suits under Section 92.”
7. The Supreme Court in the case of R. VENUGOPALA NAIDU AND ORS. v. VENKATARAYULU NAIDU CHARITIES AND ORS, AIR 190 SC 444. has held in para 9 as follows:-
“9. The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of public rights in the Public Trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of public
large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. It is for that reason that Explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code.”
8. In other words, all those suits under Section 92 of CPC are in a representative capacity and that being so, the scope under Order 1 Rule 8 is not called for. As regards whether the application itself is maintainable in the light of the Supreme Court Judgment in SLP 15165/92, it is for the Trial Court to deal with this matter and dispose of the application in accordance with law. The order passed by the Principal City Civil Judge, Metropolitan Area, Bangalore in IA.No. III of Misc.No. 668/1989 is erroneous and is liable to be set aside and is accordingly set aside. This Civil Revision Petition is allowed.