' SARMAD JALAL OSMANY, J.--- Briefly stated the facts of the matter are that the appellant which is a registered Society had filed Civil Suit No,220 of 1991 before the learned VIIth Senior Civil Judge, Karachi-East against the respondents alleging that the appellant being a registered Cooperative Housing Society had acquired a piece of land from the Government and, after having developed the same, allotted plots to its Members after sub-division etc. It also constructed three mosques in the various blocks of its land and used to administer the same through a Sub-Committee, which was responsible for paying salaries to the Imams, Moezzin and Khadims etc. As well as the utility bills and other day to day expenses of the same. Somewhere in the first week of January, 1981, respondents Nos.2 to 9 established a Trust known as Mecca Masjid Trust and they got it registered as a public charity. They also removed the Imam of one of the mosques known as Macca Masjid and the Moezzin as well as the Khadims and started running affairs of the mosque. Hence the appellant prayed, inter alia, for a declaration that the Macca Masjid Trust had been established without any lawful authority and only the appellant Society is the legal and authorized organization to run and control the affairs of the mosque. So also a decree was sought for the cancellation of the Macca Masjid Trust-respondent No,1 as well as to direct respondents Nos.2 to 9 to vacate and hand over peaceful control of the mosque to the appellant. Permanent injunction was also prayed for against the respondents from interfering in the affairs of the mosque and preventing Members of the plaintiff-Society from offering prayers therein etc. The suit was resisted by the respondents in their written statement, in which preliminary objections were taken as to the maintainability of the suit, pecuniary jurisdiction of the learned Civil Court and as to no cause of action having accrued to the appellants to file the suit. On merits, it was stated that the mosque was constructed from public funds and hence could not be claimed as being owned by any one least of all the plaintiff and as the affairs of the same were being mishandled, the majority of the Namazis decided to form their own Trust and reposed their confidence in the present Board of Trustees, who are the respondents before us. Consequently, thereafter, the affairs of the mosque were taken over by them, which annoyed the appellant, who started illegally interfering in the same and hence the suit had been filed with mala fide intention. So also it had been averred that salaries of the mosque staff were being paid from public funds and not generated by the appellant as well as day to day expenses and utility bills etc. It was, however, denied that any one had ejected the previous staff of the mosque but as the mosque is a house of the God it is open to all Muslims without distinction.
Consequently, it was prayed that the suit be dismissed with costs.
2. On the above pleadings, issues were struck by the learned Civil Court as to the maintainability of the suit, its under valuation, whether the plaintiff Society had previous control of the management of the mosque, whether the respondents are entitled to create a Trust and whether the same is illegal and liable to be cancelled, whether the defendants illegally dispossessed the plaintiff and forcibly took over the management of the mosque and whether the suit is barred under section 92, C.P.C. Etc. Thereafter, evidence was led and then arguments heard by learned Civil Court whereupon the suit was decreed.
3. On appeal before the learned Additional District Judge, Karachi-East, the judgment and decree of the learned Civil Court were reversed on purely technical grounds as it was found that the suit had been filed in violation of section 92, C.P.C. That the person who filed the suit and signed the plaint i,e, Muhammad Amin Chottani, the then General Secretary of the plaintiff was not authorized by the Society to do so. So also the learned Appellate Court came to the conclusion that the Trust- Deed itself, of which cancellation was sought, was not produced in evidence before the learned Civil Court by the appellant/plaintiff and neither has any permission been sought from that Court to do so. Consequently, the same could not be cancelled. In revision before the learned High Court, the views of the learned Appellate Court were upheld.
4. Mr. Anwar Mansoor Khan, learned Advocate Supreme Court for the appellant has firstly submitted that the provisions of section 92, C.P.C. Were not at all attracted to the case in hand as the same contemplate removal of Trustees etc. When it is alleged that the affairs of the Trust are being mismanaged. In the present case, this was not the prayer of the appellant at all but on the other hand the Trust-Deed was sought to be cancelled and the Trustees sought to be removed in toto from the mosque itself on the ground that the Trust had been created illegally and malafidely only for the purpose of usurping the administration of the mosque, which was being efficiently run by the appellant. As to the other technical objection, which was raised before the learned.
Appellate Court and the learned High Court viz. Authorization of the person, who signed and verified the plaint, learned Advocate Supreme Court has submitted that per Order XXIX, rule 1, C.P.C. In suits by or against a corporation, any pleadings may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Consequently, as the suit was signed and verified by Muhammad Amin Chottani Honorary General Secretary of the appellant-Society, no exception can be taken to the same, particularly, when such objection was never taken in the written statement before the learned Civil Court and in fact no issue was framed upon the same. Finally, as regards the filing of the Trust-Deed before the learned Civil Court, per learned Advocate Supreme Court, it was tendered in evidence by the respondents themselves and has been duly marked as an Exhibit and as such accepted by the Court. Consequently, no exception can be taken to the same as well.
5. On the other hand, Mr. Khalid Javed, learned Advocate Supreme Court for the respondents has submitted that section 92 of the C.P.C. Fully covers the case as set up by the appellant before the learned Civil Court, inasmuch as, one of the prayers was for the removal of the Trustees on the ground that affairs of the mosque were being mismanaged. Similarly, he has fully supported the learned Appellate Court as well as the learned High Court in their conclusions regarding the authorization of Muhammad Amin Chottani, General Secretary of the appellant-Society to sign and verify the plaint as well as the non-production of the Trust-Deed by the appellant, which was hit by Order VII, rule 18, C.P.C.
6. Mr. Abdul Fateh Malik, learned Additional Advocate-General, Sindh, who is present on Court notice, has supported the arguments of Mr. Anwar Mansoor Khan, learned Advocate Supreme Court for the appellant.
7. We have heard both the learned Advocate Supreme Court as well as the learned Additional Advocate-General. It would be seen that section 92, C.P.C. Addresses the 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, then the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit for the purpose of removing any trustee, appointing any trustee vesting any property in a trustee, directing accounts and inquiries to be undertaken etc. In our opinion, the direction of the learned Advocate-General would not be required in private disputes where the Trust is alleged to have been established unlawfully and malafidely for the purpose of usurping a particular property belonging to and/or under the control of any other person or corporate entity as in the present case with the prayer for cancellation of the Trust-Deed itself. Indeed, there is a marked difference between the prayers in the suit filed by the appellant and the provisions of section 92, C.P.C., which has been designed for the protection and administration of trusts created for a public purpose and require the consent of the Advocate-General before filing the suit to obtain decrees relating to the eight kinds of reliefs mentioned therein, in which the public-at-large would be interested.
8. Coming now to the second issue vis-a-vis the competency of the person, who has signed and verified the plaint, it would be seen that no such plea was taken in the written statement by the respondents and only a general objection was raised as to the maintainability of the suit, to cover which issue, the learned Civil Court framed Issue No,1 viz. Whether the suit is not maintainable, according to law and Issue No,8 whether the suit is barred by section 92, C.P.C. Indeed, under cross-examination, the plaintiff's witness Amin Ghazi has not been asked any question at all regarding the authorization of Mr. Muhammad Amin Chottani to sign and verify the plaint. Similarly, in the affidavit-inevidence filed by Iqbal Shakoor defendant No,4, this issue has not been adverted to at all and only an objection has been taken as to the permission of the learned Advocate- General under section 92, C.P.C. In this view of the matter and in the light of the provisions of Order XXIX, rule 1 of the C.P.C., where no specific objection has been taken by the respondent regarding the competency of the person, who signed and verified the plaint to do so either in the written statement or in the evidence produced before the learned Civil Court, this can hardly be done at the appellate stage. Indeed, where such an objection had been taken, it could very well have been rectified by the appellant by producing the requisite authority for Mr. Chottani to sign and verify the plaint, since per settled law, this is a mere irregularity which can be set right and cannot be the basis of non-suiting a litigant.
9. Lastly, adverting to the provisions of Order VII, rule 18, C.P.C. Vis-a-vis the Trust-Deed in question, it would be seen that as per the same, a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave to the Court, be received in evidence on his behalf at the hearing of the suit. Admittedly, the Trust-Deed was itself introduced in evidence by the respondents and has been marked as an Exhibit and so also it was relied upon in the plaint. In these circumstances, it cannot be said that it was not so done without the leave of the Court, particularly, when it was nobody's case that the said document is not a genuine one.
10. For the foregoing reasons, we do not find any substance in the impugned judgments of the learned High Court or the learned Appellate Court. In our opinion, the matter should be decided on merits and not dismissed on technicalities, which even otherwise could not be substantiated. So also it is trite law that rules of procedure have been made to foster the cause of justice and not to hamper it and unless any party is prejudiced by any violation of the same, they should not stand in the way of dispensation of justice. These are the reasons for our short order passed earlier whereby the appeal was allowed and the matter remanded to the Appellate Court to be heard on merits and decided within three months.