1. ' AFTAB AHMED GORAR, J---Through this High Court Appeal, the appellants have impugned the Judgment dated 4-7-2011 passed by a learned Single Judge (O.S.) whereby while allowing the application under Order VII, Rule 11, C.P.C. He rejected the plaint in Suit No,804 of 2008 filed by the appellants.
2. ' The facts, in nutshell, are that the plaintiffs/appellants are tenants in a building known as Sir Jehangir Kothari Mansion, hereinafter called as "the Building". The building belonged to respondent/defendant No,1, Sir Jehangir Kothari Trust, hereinafter called as "the Trust" of which respondents/defendants Nos.2 and 3 are the trustees. The suit was filed on the ground that the trustees intended to dispose of and sell the Building which is in violation of the provisions of section 92, C.P.C. Asthe trust having been created for public purpose of a charitable nature, annot be disposed of and/or sold without obtaining permission of the court. The other ground taken in the suit was that even the trust deed itself imposed prohibitions on the sale of immovable properties of the Trust.
3. ' The defendants Nos.1 to 3 while contesting the suit, sought rejection of the plaint mainly on the ground that it being a public trust for charitable purposes, comes within the scope of section 92, C.P.C. And, therefore, the suit pursuant to section 92, C.P.C. Could only be brought by the classes of persons specified therein, the relevant class in the present case, being "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General" and, according to the learned counsel, the appellants / plaintiffs being merely tenants do not fall within the definition of such class, hence they had no locus standi to institute the suit.
4. ' Mr. Malik Naeem Iqbal contended that under the provisions of section 92, C.P.C. The trustees of a public charitable trust in all cases are required to obtain permission of the court if they want to sell, alienate, mortgage or otherwise dispose of any immoveable property of the trust. He further contended that the suit filed by the appellant did not come within the scope of section 92, C.P.C. To strengthen this plea he referred to the prayer clause of the plaint and submitted that the substantive relief sought by the appellant does not fall within the scope of section 92, C.P.C. In support, he relied upon the case reported as Mohammad Irfan Azad v. Mst. Sultana Begum and 8 others (PLD 1971 Karachi 91). He further contended that even in Para 11 of the Will and Testament of Sir Jehangir Kothari there is restriction imposed on the sale of the immoveable properties including the Building belonging to the Trust, as such the Trustees were not authorized to enter into such transaction.
5. ' Conversely, Mr. R.F. Virjee, learned counsel for respondents Nos.1 to 3, contended that the suit filed by the appellants was barred under section 92, C.P.C. As the appellants/plaintiffs did not fall within the definition of person(s) who could institute the suit relating to the trust property. He pointed out that the appellants/plaintiffs being tenants did not acquire any interest in the property; hence they had no locus standi to present the suit. He further contended that the subject property did not form part of the immovable properties owned by Sir Jehangir. Kothari at the time of his death, when the trust provisions of his will became operative. According to him, the property was purchased subsequently by the then trustees from the other assets of the Trust, as such did not come within the scope of any restriction imposed by Sir Jehangir Kothari, therefore, the trustees were fully empowered to sell/dispose of the property. In support of his contentions, Mr. Virjee relied upon the decisions given in the cases of Begum Hafizunnisa Qureshi and others v. Shaikh Mohammad Hussain and others (2Q03 CLC 1156).
6. ' Mr. Mohammad Younus, representing respondents Nos.4 to 17, while adopting the arguments advanced by Mr.R.F. Virjee, supported the impugned judgment and prayed for dismissal of the appeal.
7. ' In order to determine as to whether the suit instituted by the appellants comes within the scope of section 92 CPC, it would be advantageous to refer to the guidelines set forth by the honourable Supreme Court in the case of Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others (PLD 1989 SC 283) in respect of a suit under section 92 CPC. The apex court laid down following preconditions for the presentation of such suit:
(i) There must be a trust for a public purpose of a charitable or religious nature.
(ii) The plaint must either allege that there is breach of trust or that the directions of the Court are necessary for the administration of the trust.
(iii) The suit must be representative one on behalf of the public and not for the ascertainment of the personal rights of the plaintiffs.
(iv) The relief claimed must be one of the reliefs enumerated in section 92, C.P.C.
8. ' Examining the present case in the light of above guidelines, from the perusal of the contents of the plaint, it is clear that the suit comes within the scope of section 92, C.P.C. The case of Mohammad Irfan Azad, supra, relied upon by the learned counsel for the appellants is not attracted in the instant case as the facts of both the cases are quite different. Now question arises as to whether the plaintiffs come within any of the categories of persons by whom such a suit can be filed.
9. Subsection (1) of section 92, C.P.C. Provides: "In the case of any alleged breach of any express or constructive trust created for public purposes of 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 any interest in the trust and having obtained the consent in writing of the Advocate General, 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 Provincial 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...."
10. From a bare perusal of subsection (1) of section 92, C.P.C. It is crystal clear that a suit in respect of trust property can be brought either by the Advocate General himself or by "two or more persons having an interest in the trust", provided they have obtained the consent in writing of the Advocate General. Needless to say that the appellants being merely tenants do not fall within the definition of "persons having an interest in the trust". Even if the Building is sold, the position of the appellants as tenants could not be disturbed except in accordance with law and they would simply ceased to be the tenants of the Trust and become the tenants of the new owneRs, There is yet another aspect of the case viz. The suit must be brought in a representative capacity on behalf of the public at large and not to enforce a private or an individual claim or right. In the instant case, the appellants/plaintiffs have not instituted the suit in a representative capacity for the benefit of the public at large. It is apparent from the contents of the plaint that the plaintiffs are asserting individual rights which are personal to themselves and not for the benefit of the public at large. In this view of the matter, it can safely be held that the appellants/plaintiffs are not "persons having an interest in the trust", hence had no locus stand to institute the suit.
11. ' Adverting to the contention of the learned counsel for the appellants that even according to the last Will of Sir jehangir Kothari, the sale of the immoveable properties including the Building belonging to the Trust was prohibited, it is to be seen as to whether the "Building" comes within the prohibition contained in the eleventh paragraph of the Will and Testament. It would be advantageous to reproduce hereunder paragraph 11 of the Will : "11. ?I Give, Devise and Bequeath all the Rest Residue and Remainder of my estate and effects of whatsoever nature or kind and wheresoever situate including my immovable property situated on the Bunder and Napier Roads, Karachi, known as the "Jehangir Kothari Building" my building known as the "Jehangir Kothari Building" behind the Old Small Causes Court Building in the Run chore Quarters, my building known as "Upna Villa", my Saddar Bazar property known as "Mohan Terrace" and "Sayenna Crescent" subject to what is provided in respect thereof in para. 6 and 7 above and my land at Clifton unto My Trustees to be held by them in trust for the benefit of Orphans and Orphanages throughout the World and the poor and Suffering throughout the world, the said Trust to be named the Sir Jehangir Kothari Trust. I expressly direct that none of my immovable properties forming part of my residuary estate except my land situated at Clifton, Karachi, shall be sold or have their names altered. And 1 confer upon my Trustees full powers of management of my immovable properties forming part of my residuary estate including power to lease the same for any term or terms of years not exceeding twenty one; so that subject only to the absolute restriction that they shall not sell or otherwise dispose of the said immovable properties (except my land at Clifton) My trustees shall have the same power of management and control as if they were the absolute owneRs, And I direct My Trustees to insure against loss or damage by fire etc., all the immovable property vested in them on my death."
12. ' While properly interpreting the above paragraph of the Will, it seems that the immoveable properties mentioned therein, which were subject to the restrictive covenant, were only those properties which were part of his residuary estate at the time of his death, the Building does not come within its scope.
13. ' In this context, Mr. R.F. Vireo contended that the Building was acquired by the trustees upon the constitution of the Trust after the death of Sir Jehangir Kothari. In support of such plea, he referred to following two recitals of the sale deed dated 7-3-2006 whereby the present trustees have transferred the Building to the vendees named therein : "AND WHEREAS in pursuance of the directives so enshrined in the Will, the then Trustees (Executors), after the demise of Sir Jehangir Kothari, from the corpus/assets of the said Testator/Settler had purchased an immovable property, viz. Plot admeasuring approximately 2013 square yards, known as (Mama) Mansion, situated at the junction of Abdullah Haroon Road and Inveracity Road, bearing Survey No,4, Old Survey No,F-15-7A, Sheet No,SB-5, from the Central Bank of India Ltd. a company incorporated under the Companies Act, and having its registered office at Bombay.
14. ' AND WHEREAS the said Indenture of Sale was executed at Karachi, on 10th March, 1938, bearing Registration No,436 at pages 374 to 383, Vol. 480 of Book-I."
15. ' The appellants/plaintiffs have not been able to contradict the statements of fact made in the foregoing recitals. In view of above, we are of the opinion that the "Building" does not come within the purview of the prohibition imposed in paragraph 11 of the Will, quoted above, and the present trustees were within their competence to enter into such transaction.
16. It is now well settled that stillborn suit must be buried at its inception, without formal funeral ceremony. It will be advantageous to reproduce the following observations made by the apex Court in the case of S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan (2002 SCM R 338):-- "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes.
17. ' In view of above discussion, we have come to the conclusion that the learned Single Judge (O.S.) rightly rejected the plaint of the suit filed by the appellants, with the result this appeal also fails and is accordingly dismissed along with pending applications.
18. ' Above are the reasons for short order passed on 27-8-2013.