DORAB PATEL, J.-Both these appeals have been preferred against the judgment of an Additional District Judge, Karachi in Suit No. 119 of 1962 by which the learned Additional District Judge framed a scheme for the administration of the Swami Narayan Temple Estate situated on Bunder Road, Karachi and appointed a Board of Trustees for managing this Estate.
2. The facts material to these appeals are as follows: The Swami Narayan Sect was founded in the early 19th Century by a religious reformer, Swami Sahajanand. Swami Sahajanand built temples and acquired properties and by a document known as the document for the apportionment of territory he divided India into two Dioceses, North and South. The Headquarters of the Northern Diocese was Ahmedabad, and Karachi falls within the area of this Diocese. Further, according to this document for the apportionment of territory, succession to the Founder's Gaddi was to be by hereditary, and the document also dealt with the spiritual and temporal rights of his successors who are known as Acharyas. In the course of time, the Acharyas also acquired more temples and properties and the unfortunate result was that disputes began over the question whether the properties acquired by the Acharyas belonged exclusively to them or whether they were held on Trusts for the benefit of the Swami Narayan Sect. Further, according to all the learned counsel, a suit was filed in the District Court of Ahmedabad against the then Acharya. However, as the then Acharya was a minor, it would appear that his properties were managed by Trustees, therefore the suit was for their removal and for the framing of a scheme. This suit was disposed of by a judgment in which it was held that the properties of the Acharya were of a public and religious nature, that he was only the life tenant of these properties but had absolute property in the offerings and salutations received by him. An appeal was filed against this judgment in the Bombay. High Court, but the appeal was dismissed with a slight modification that certain offerings to the Acharya were for his personal maintenance. However, according to the Bombay High Court, the Acharya had supreme control over the properties in dispute. 1n 1920 another suit was filed in the District Court of Ahmedabad against the then Acharya which was disposed of by a judgment seven years later on 30th June 1927, and for the purpose of these appeals, it is sufficient to state that by this judgment the learned District Judge, Ahmedabad held that a scheme should be framed for the administration of the properties of the Swami Narayan Sect because he was of the view that the Acharya should be subject in secular matters to a Committee to be appointed under such a scheme. The scheme was framed two years later on 3-1-1929, and in the events that happened. The Acharya had filed an appeal in the High Court Bombay both against the judgment directing the scheme to be framed and the actual scheme framed. These appeals were &posed of by a judgment of the Bombay High Court dated 10th October 1934. By this judgment, the scheme framed by the District Court was approved with certain modifications which are not relevant. And we have further to observe here that, whilst the learned District Judge had held that a Committee was to control the Acharya in secular matters, according to the judgment of the High Court, the Acharya was to remain the supreme authority and the Committee were only to advise and assist him. It is also relevant to note that according to para. 34 of the scheme, as approved by the Bombay High Court, there was provision for modifying the scheme by moving an application to the District Court of Ahmedabad.
An appeal was filed against this judgment of the Bombay High Court: but it was dismissed by the Judicial Committee on 13th March 1946, and there was no litigation until we come to the suit under appeal before us.
After the judgment of the Bombay High Court in 1934 the Swami Narayan Estate at Karachi was managed under the scheme framed by the Bombay High Court through Attorneys appointed by the Acbarya, and it is sufficient to state here that in 1959 the then Acharya, the late Acharya Davendra Prasadji, appointed one Dr. T. D. Raja as his attorney for managing the said Swami Narayan Temple Estate. However, some members of the Hindu community were not satisfied with the manner in which the estate was being managed, and on 15-8-1962 they filed a suit against the said Acharya Davendra Prasadji and his attorney Dr. Raja in the District Court, Karachi for their removal from the management of the Swami Narayan Temple Estate and for framing a scheme for the administration of that Estate. The suit was filed under section 92 of the Civil Procedure Code, and the contention of the plaintiffs in the suit was that the Swami Narayan Temple Estate was the property of the Swami Narayan community and that it was held in trust by the defendants for the Swami Narayan community. Accordingly, the prayer in this suit was for the removal of the defendants from the management of the said Estate, for an enquiry into the accounts of the said Estate, and for framing a scheme to manage the said Estate. Together with the suit, the plaintiffs had asked for the appointment of interim Receivers to manage the Estate. This application was dismissed on 15th October 1962, and its dismissal led to prolonged litigation. However, as this aspect of the case is not relevant to these appeals we shall not go into it. It is sufficient to state here that the suit was resisted by the defendants and was transferred in due course to the Court of an Additional District Judge, Karachi who disposed it of by his judgment of 31-5-1967. We have however to state here with regret that, although the suit affected the public interest and raised important questions of law the learned Additional District Judge has disposed it of on the admissions of the learned counsel, and decreed the suit, except the prayer for accounts. The learned Additional District Judge therefore framed a scheme according to which the Swami Narayan Estate was to vest in the idol Shri Swami Narayan and was to be managed by a Board of Trustees. The learned Additional District Judge also appointed five Hindu gentlemen as the first Trustees of this scheme. Aggrieved by this judgment, Acharaya Davendra Prasadji and his attorney Dr. Raja filed an appeal against it in. This Court (First Appeal No. 51 of 1967) and their prayer in this appeal is that the scheme framed by the learned Additional District Judge should be annulled, that the Trustees appointed by him should be discharged, and that the Swami Narayan Temple Estate should be restored to them. As the plaintiffs in the suit were not satisfied with the scheme framed by the learned Additional District Judge and the Trustees nominated by him, they also filed an appeal. This appeal being First Appeal No. 52 of 1967, was admitted and pending its bearing, at the instance of the appellants, the Court appointed the Official Assignee to manage the Swami Narayan Temple Estate. Further, the prayer in this appeal also is that the scheme framed by the learned Additional District Judge should be annulled and the Trustees appointed by him removed.
3. We shall dispose of both these appeals by this judgment and for convenience we shall refer to the appellants in First Appeal No. 51 of 1967 as the appellants and to all the other parties as the respondents. We may also point out here that, as the suit of the plaintiffs was a representative suit, other persons were also allowed to be impleaded, some of whom have died, but this is not relevant to the order we are passing. However, the appellant Acharya Davendra Prasadji died in Ahmedabad and on 5-1-1970 the other appellant Dr. Raja filed an application under Order XXII, rule 3 read with Rule 10, C. P. C. For impleading in the place of deceased Acbaraya his successor, Acharya Tejendra Prasadji. The next day, one of the respondents also filed an application under Order XXIT, rule 4, C. P. C. With a prayer that as Acharya Davendra Prasadji had died, the new Acharya, namey, Acharya Tejendra Prasadji should be impleaded as his legal heir. Finally, this respondent who was an appellant in the First Appeal No. 52 of 1967 also filed an applicati,)n in that appeal on the same grounds that Acharya `Tejendra Prasadji should be impleaded under Order XXII, rule 4, C. P. C. In place of his deceased father. This application was opposed only by Amarsi Narayanji, one of the respondents before us. All these applications under Order XXII. Came up for hearing in due course, and by his order dated 26th October 1930 a learned Single Judge of this Court allowed the applications subject to the objection by the respondent Amarsi Narayanji, therefore we shall first dispose of this objection.
4. Mr Sadiq's first submission was that First Appeal No. 51 of 1967 had abated on the death of the late Acharya Davendra Prasadji because, according to learned counsel, as the property in dispute was trust property, the provisions of Order XX11, rule 4 were not applicable. The argument is based on a misreading of the application filed by Mr. Fazeel, learned counsel for the appellants. That application, as we have pointed out, was under Order XXII, rules 4 and 10, C. P. C. And rule 10, in so far as it is relevant. Reads as follows :- "In other cases of an assignment, the creation or devolution of any- interest during the pendency of a suit, the suit may by leave of the Court. Be continued by or against the person to or upon whom such Interest has come or devolved."
On a plain reading of the rule it is applicable to Trusts and Trustees. As this point was contested by Mr. Sadiq. Mr. Fazeel cited authorities to support of the maintainability of his application, but it is not necessary to consider these authori--ties. It is settled law that on the death, removal of retirement of a Trustee a new Trustee can be impleaded in his .Place under the rule quoted. As observed by Mulla in his Commentary on the Code of Civil Procedure, 12th Edition 962: " Devolution of interest: representative suits.-Rules 2, 3 and 4 of Order XXII) relate to cases of devolution of interest on the death of a plaintiff or a defendant. These rules, however, do not apply where a suit is brought by or against a person. ' in his representative character e.g. By or against the head of a. Mutt or the manager of a temple as such. In such a case the present rule applies, so that if the head of the mutt or manager of the temple dies, his successor may be substituted in his. Place. But the rule is not confined to devolution of interest by death. It also applies if the head of the mutt or manager of the temple resigns his office or is removed from office.
In view of the nature of the suit filed by the respondents these--observations cover the present case, and we have no doubt--that Acharya Tajendra Prasadji is entitled to be impleaded in both these appeals. However. Mr. Sadiq referred us to a Division Bench judgment of the Lahore High Court reported in Gulzar Shah and others v. Sa.Dar Ali Shah and others (1). That--case related to a suit in which Mahants had sought declaratory relief. On the other hand, in the present case, the appellants did not seek relief. But they have been sued on the allegation that they have been committing waste and malvarsation with regard to properties that do not belong to them. Not only is the second appellant alive, but he claims to be the attorney of Acharya Tajendra Prasadji who seeks to be impleaded. IL~' these circumstances, the judgment cited is distinguishable and, as rightly submitted by Mr. Fazeel, Acharya Tajendra Prasadji is a legal representative within the meaning of section 2(11) of the Civil Procedure Code. Additionally, when we pointed out to Mr. Sadiq that his own appeal, namely, First Appeal No. 52 of 1971 would fail if we accepted his argument, he promptly dropped his submission. In both the appeals we allow the' applications to implead Acharya Tajendra Prasadji under Order XXII, rule 10, C. P. C.
4. We now turn to the arguments of the learned counsel: on the merits of the appeals before us, and we will first consider the question whether the District Court of Karachi was competent to entertain the suit filed by the respondents. Here we have to point out that the appellants have not raised this objection in their Memorandum of Appeal. But as the learned counsel for the respondents repeatedly alleged that the appellants--were guilty of mismanaging properties worth millions of rupees, we observed that, in these circumstances, the District, Court of Karachi could not possibly have had the jurisdictions to entertain the suit, and we gave time to all the- learned counsel to study this aspect of the case.
5. Only Mr. Abbas Zia submitted that the District Court' of Karachi was competent to entertain the suit of the respondents and, according to learned counsel, this followed from the plair--language of section 92, C. P. C. We have examined this section, and we find that it does not contain any reference to a District Court. But, on the contrary, it states that a suit under section 92; has to be filed "in the principal civil Court of original juris--diction or in any other Court empowered inthat behalf of the Pro--vincial Government . . . . ." Therefore the question is which is thaw
(1) AIR 1930 Lah. 703 principal civil Court of original jurisdiction in Karachi, and in support of the submission that the suit was filed in the Court not competent to hear it, Mr. Fazeel referred us to subsection (4) of section 2, C. P. C. This subsection reads as follows :- "District means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court."
The definition was clearly intended to include High Courts which have original jurisdiction, therefore, as the respondents' suit .Was filed in 1962, the obvious question which arises forl consideration is the jurisdiction of the Karachi Seat of the West Pakistan High Court in 1962. We may, however point out that under section 8 of the Sind Courts Act, 1'426, the Sind Chief Court was expressly described as the principal civil Court for the Civil District of Karachi. But the position changed when the District Court of Karachi was set up under the Karachi Courts Order, 1956.
Clause 4 of this Order reads as follows :- "Appointment of District Judge.-(1) The Central Govern--ment shall appoint a person to be the District Judge for the Federal Capital.
(2) Unless the Central Government by order under the proviso to subsection (2) of section 22 of the Sind Courts Act, 1926 (Bom. Act VII of 1926), otherwise directs, the Court of the District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject--matter exceeds twenty-five thousand rupees in amount or value."
The District Court of Karachi has been set up in pur.Cuance of this provision, and as a further consequence of this provision, section 8 of the Sind Courts Act was amended by Part A of the Schedule of this Order. According to section 8, as it stands after this amendment, the Karachi seat of the West Pakistan High Court. And now this Court, constitute the principal civil Court of original jurisdiction for the District of Karachi "in respect of suits and proceedings wherein the subject- matter in amount or value exceeds Rs. 25,000 or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 prescribe." On the plain language of section 8, it is clear that the District Court of Karachi was not competent in 1962 to entertain the suit of the respondents because their own case its that it relates to property worth millions of rupees.
6. Mr. Abbas Zia defended the suit on two grounds. The first was that the respondents had paid a fixed court-fee on their claim; the second was that the suit was for declaratory relief, that the plaintiffs in such a suit are entitled to value their relief arbitrarily, and as the respondents had valued their claim at Rs. 200 only the suit was within the jurisdiction of the District Court. The arguments are not sound. The amount. of court-fees paid is totally irrelevant to the construction of section 8 of the Sind Courts Act, and the only question is whether the value of the subject-matter in the suit exceeds Rs.25,000. Of that there can be no doubt, and as to the second argument of Mr. Arbas Zia, it has been repeatedly rejected by this Court. (See PLD 1971 Kar.682).Imam--din v. Abdul Ghanl (1), Zafar Ahmad v. Abdr.l Khalique (2), Muhammad Siddiq v. Haji Ahmed & Company (3) and Badrul Islam v. Qamar Islam (4). As the respondents have valued their relief arbitrar,ly, their valuation has to be rejected, and on the admission of their own learned counsel, it is clear that relief had been deliberately undervalued in order to file a suit in the wrong Court. In these c-rcumstances. Mr. A. K. I Lakhani, Mr. Akhtar Mahmood and Mr. Joshi conceded tha 1t the suit had not been filed in the proper Court, and in view ofi the judgment of this Court in Badrul Islam's case they prayed that the suit should not be dismissed but that the plaint should be returned to them for presentation in the proper Court, namely, the original side of this High Court. We would have allowed this request but for the fact that the second argument of Mr. Fazeel is fatal to the suit of the plaintiffs, and we will now consider this argument.
7. Sanction to file a suit under section 92, C. P. C. Can be obtained from the Advocate-General or in the manner prescribed under section 93 which reads as follows "The powers conferred by sections 91 and 92 on the Advocate--General may be with the previ:yus sanction of the Provincial Government, exercised also by the Collector or by such officer as the Provincial Government may appoint in this behalf."
Now the sanction for the suit filed by the respondents had been given by the Secretary to the Commissioner, Karachi, by his order dated 6-8-1962, and this Secretary had been authorised to sanction suits under section 92 by a notification issued on behalf of the Administrator, Karachi dated 19-11-1959. This notificat,on states "In pursuance of section 93 of the Code of Civil Procedure, 1908 (Act V of 1908) the Administrator, Karachi is pleased to sanction that the powers exercisable by the Attorney-General under sections 91 and 92 of the said Code in respect of the Federal Capital, Karachi shall also be exercised by the Secretary to the Administrator of Karachi."
This notification delegates the powers "exercisable by the Attorney-Ceneral", whilst section 93 relates to the powers of the Advocate-General, therefore Mr. Fazeel submitted that the sanction was not valid, as it was contrary to the plain language of the section. Mr. Sadiq feebly argued that as Karachi was Federal Territory in 1959, the words "Advocate-General" in the section :should be construed to mean the Attorney-General. But this
(1) PLD 1959 Kar. 802 (2) PLD 1964 Kar. 386
(3) PLD 1967 Kar. 468(4) PLD 1971 Kar. 682 very argument had been advanced by Mr. Sadiq in Manzoor Ahmed and another v. Mahboob Shah and others (1), and it had been rejected by a Division Bench of the West Pakistan High Court. We are in respectful agreement with this judgment, and it is clear that the suit under appeal has been filed without obtaining proper sanction under section 93.
8. Finally, Mr. Fazeel submitted that the sanction relied upon by the respondents had become invalid on account of Karachi's merger into West Pakistan on 1st July 1961 in pursuance of the provisions of the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961. We may repeat here that the sanction to file the suit had been granted by the Secretary to the Commissioner of Karachi who in turn `vas the delegatee of authority delegated to him by the then Administrator of Karachi on 9-11-1959. Now, when the Administrator of Karachi delegated his authority in 1959, Karachl was Federal Territory and for the Federal Territory of Karachi the Administrator was exercising the powers of the Provincial Government. He was therefore competent to delegate authority under section 93. But after Karachi was merged into West Pakistan, the Commissioner of Karachi was completely divested of the powers of a Provincial Government; therefore Mr. Fazeel submitted that on a proper construction of the West Pakistan Administration Order, 1961 the delegation of authority in favour of the Secretary to the Commissioner had also become void. This proposition was contested by the respondents but it is not necessary for us to consider it because of Mr. Fazeel's further sub--mission. That further submission was that sanction for filing a suit under section 93 must be both by the Provincial Government as well as by the delegatee of the Provincial Government under section 93, and, as admittedly in the present case, the respondents had not obtained the sanction of the Provincial Government for filing their suit, Mr. Fazeel submitted that the suit itself was not maintainable. In support of this proposition, Mr. Fazeel referred us to a judgment of the Judicial Committee in Prem Narain v. Ram Charan and others (2). In that case Sir Lancelot Sanderson, who delivered the judgment of the Board, observed at page 54 "In their Lordships' opinion section 93 provides for two distinct matters : the appointment of an officer to exercise the powers conferred by sections 91 and 92 on the Advocate--General and the previous sanction of the Local Government to the exercise of such powers: in each case both the appointment and the previous sanction of the Local Government to the exercise of these powers are necessary before the provisions of section 93 can be utilised."
We are in respectful agreement with these observations and as admittedly the respondents had not obtained the sanction of the Provincial Government before filing their suit, it is clear that the suit must fail, to view of these observations.
(1) PLD 1963 Kar. 115(2) AIR 1932 P C 51
9. Mr. A. K. Lakhani, learned counsel for one of the respondents, however referred us to a judgment of the Oudh Chief Court in Mst. Premo v. Sheonath and others (I ), in which, accord--ing to learned counsel, a contrary view was taken. We have examined this judgment, and we find that learned counsel's argument is not correct. The facts of this Oudh case were that a suit filed under section 92 without the previous sanction of the Provincial Government, and as such it would have been hit by the rule laid down by the Judicial Committee in Prem Narain's case. However, in order to validate suits, that had become defective on account of the Privy Council's judgment, the Government had passed the Public Suits Validation Act, 1932. On 8th April 1932. Section 2 of this Act validated all suits "pending at the commencement of this Act"; therefore, as in the case cited the suit was pending at the date of this Act the Oudh Chief Court held that the suit before it was saved by the express provisions of this Act. As the suit before us cannot conceivably be said to have been pending at the date of this Act, the Oudli, judgment is irrelevant and does not help the case of the respondents. We have therefore no doubt that the suit is hit by the rule laid down by the Judicial Committee in Prem Narain's case.
10. In the result, we dismiss First Appeal No. 52 of 1967 and we allow First Appeal No. 51 of 1967 and dismiss the suit of the respondents. However, as we are dismissing the suit of the respondents on legal objections which were not properly pleaded in the trial Court, we do not award any costs.
Further,. As a corollary of this order, the appointment of the Official Assignee of this Court as Receiver of the Swami Narayan. Temple Estate is vacated and the official Assignee shall hand over the Swami Narayan Temple Estate to the appellants in First Appeal No. 51 of 1967. We have further to point out here that the Official Assignee has submitted accounts for the period 1-2-1971 to 31-7-1971.
As all the learned counsel support the report of the Official Assignee, we accept it and allow the fees claimed by him, and we direct him to submit without delay a report for the period of his management from 1-8-1971 to the date on which he hands over management in pursuance of this.
Order.
(1) AIR 1933 Oudh 22 u,i