The plaintiffs, after having obtained the consent of the Advocate-General, Sind, under section 92 of the Code of Civil Procedure, instituted a suit for the removal of the defendants from the Trusteeship of the Islamic Education Trust, Karachi, and the Settlement of a scheme for its future management.
The other relief sought was for the rendition of accounts by the defendants, of the Income and expenditure of the Trust from 4-3-1958 when it came to be created. The suit was accompanied by an application for the appointment of a Receiver till the pendency of the suit. The facts, forming the background of the suit, are as follows :-
2. In 1948, some citizens of Karachi, realising the paucity of educational institutions in their fast growing town, formed a Society by the name of Islamic Education Society and got it duly registered. Its main object was to spread education by opening new institutions. With this aim in view, the Society in 1948 started a college which came to be called Islamia College and also took over a running school. The college made a humble beginning in a rented building at Clayton Road, Karachi, but it was soon felt that the space was insufficient to accommodate the ever-increasing number of its students. In 1958, the Society, therefore, appealed for funds from the public to raise a new premises of its own, and for the setting up for a Darul Uloom. The public donations brought in Rs. 15,00,000.00, and another sum of Rs. 10,00,000.00 was granted by the Government of Pakistan.
To carry out the objects on a proper basis, the Society decided to create a trust by the name of Islamic Education Trust. The said Trust was registered on 4-3-1958. The Board of Trustees, however, consisted of the defendant No. 1, his son, the defendant No. 2, his minor daughter, the defendant No. 4 and two of his employees, the defendants Nos. 3 and 5, who were his hench--men. On 17-5-1958.
The Karachi Municipal Corporation granted a plot measuring 22,349 sq. Yards on 99 years' lease, on a nominal rent of Rs. 200 per annum and the Trust from its donated funds of Rs. 25,00,000.00 and the admission fees of the students, raised a four-storeyed building. It is however alleged that during the last 13 years of its existence, the Trustees have committed numerous acts of mismanagement and breach of trust, and therefore their continuance as Trustees would be detrimental to its interests. Some of the main accusations put forward are, that though according to the Regulations framed by the Trust, there was to be a General Meeting every three months, yet not a single meeting was called for 10 years ; the accounts of the funds were never m4intgined or audited the fends were never even deposited in a bank and were systematically misappropriated ; the resources of the Islamia College were being drained out as it was made to pay a sum of Rs.
58,000.00 per month to the Trust towards the rent of its building ;its telephones and vehicles were being used by the defendant No. 1 and some of its employees were made to attend to his private work.
3. The supplementary affidavit filed by the plaintiffs, in support of their application for the appointment of Receiver, mentioned that after the institution of the suit, the Karachi Municipal Corporation had issued a public notice for the auction of the College building on 28-7-1971, for non-payment of its outstanding dues of Rs. 2,42,806.00. Counter-affidavits were filed by some of the defendants and an affidavit-in-rejoinder by the plaintiff No. 1.
4. The first contention raised by Mr. Khalid M. Ishaque, learned counsel for the defendants, was that the plaintiffs having no interest in the Trust, had no locus standi to intermeddle into the affairs of the Trust, and therefore, the consent of the learned Advocate-General, Sind, will have no significance. Mr. Munawwar Abbas, learned counsel for the plaintiffs, urged that the plaintiff No. 1 was the President of the College Teachers' Association, Sind and because of her keen interest in the affairs of the educational institutions, she was appointed a member of the Probe Committee by the Government to make investigations and report on the administration of the private colleges in Karachi. The plaintiff No. 2 was a member of the Islamic Education Society, which created the Trust.
It was also stated that the plaintiffs Nos. 2 and 3 had made their own donations to the funds apart from the collections made by them from the public. These assertions have not been controverted in the counter-affidavit filed by the defendant No. 1 or the defen--dant No. 3. Mr. Munawwar Abbas further urged that it was not necessary that the plaintiffs should have been personally affected by any act of the defendant or that they should have any direct interest in the affairs of the Trust. He sought support for the proposition from Abdul Hamid Qureshi v. Ch. Fateh Mohammad Sheifta (PLD 1958 Lah. 824), K. R. M. Singaram v. K. A. Aiyangar and others (AIR 1927 Mad. 462), Mulchand Bassarmal and others v. Devigir Motigir (AIR 1933 Sind 213)and V. Aiyar and another v. S. Ayyar and another (AIR 1924 P C 221). It was observed in the case of Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta, referred to earlier, that apart from other considerations.
"Even a member of the Muslim community who were to benefit by this trust can sue for the protection of the trust property."
5. Looking to the principles laid down in .The aforesaid cases, I am clearly of the opinion that the contention advanced by Mr. Khalid Ishaque has no substance.
6. It was further contended by Mr. Khalid Ishaque, learned counsel for the defendants, that it was incumbent on the Advocate-General to have accorded his consent, after hearing the defendants and since he had failed to do so, the principles of natural justice were disregarded. According to him the principle of audi alteram parten extended to all proceedings, by whomsoever held, which may affect the person, the property or the rights of the parties concerned in the dispute. In this context, he cited the cases of Chief Commis--sioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), and Province of East Pakistan and another v. Noor Ahmad and another (PLD 1964 SC 541). I am afraid, the decisions referred to, will be of no assistance, because no adjudication had been made by the Advocate-General affecting the rights of the parties in one way or the other. The conditions for the applicability of section 92 of the Code of Civil Procedure, as held in Haji Shaikh Mahboob Ilahi and others v. (Brig.) K. M. Idris and 2 others (PLD 1955 Lah. 242), are that (1) There should be in existence a trust created for public purpose of a charitable or religious nature ; (2) The reason for the suit should be a breach of trust or the necessity of a direction of Court, in relation to such trust, and (3) The relief claimed should be out of those specified in subsec--tion (1) of section 92 of the Code. All that was to be seen by the Advocate- General was that a prima facie case bad been spelled out, to go to a Court of law where the parties will have full opportunity to present their case and contest the matter. This was the view taken in Swami Shantanand Saraswati v. Advocate-General, U. P. Allahabad and others (AIR 1955 All. 372), as pointed out by Mr. Munawwar Abbas, and I am in full agreement with the same. This ground also must, therefore, fail.
7. It was further argued by Mr. Khalid Ishaque, that under the Sind Private College (Management and Control) Ordinance X of 1970, a private college was directly under the general supervision of the Governing Body and as the Governing Body had not been impleaded in the suit, it would not therefore lie. The case of Anandi Lal and others v. Ram Sarup and others (AIR 1936 All. 495) was relied upon. The reply of Mr. Munawwar Abbas was that the only people to be affected by the suit were the trustees and not the Governing Body and the representatives on the Governing Body were not from the Trust, but from the Islamic Education Society, the parent body. Prima facie, 'the Trust could not be equated with the college or the Governing Body, and therefore the objection fails.
8. These grounds being disposed of, it now remains to see whether there is any prima facie case made out for the appoint--ment of a Receiver as prayed. It is not denied that two of the trustees out of five are the children of the defendant No. 1 and the remaining two were his employees. It appears that the defendant No. 4 was a minor when appointed a Trustee. It has been alleged by the plaintiffs that the defendants had never kept the account of the trust in any bank at any stage.
The allegation has not been controvered in the counter-affidavit filed by the defendants. In the rules and bye-laws of the Society, according to rule 12 all the funds had necessarily to be deposited in a bank. Further, according to the Regulations of the Trust, a General Meeting of the Trust had to be held every three months but it has not been denied that, no such meeting had been held for about 10 years. The one tangible property owned by the Trust is the Islamia College building. The supplementary affidavit filed by the plaintiffs shows that the said building was ordered to be auctioned by the Municipal Corporation, Karachi as its taxes amounting to Rs. 2,42,806.00 had remained unpaid. All that has been stated is that the order of the auction had been stayed by the Divisional Commissioner. Karachi. There are also allegations of misappro--priation and abuse. Of office as trustees, which were controverted by Mr. Khalid Ishaque, bat it is hardly proper to go into the same. That can await the trial. It is also not denied that a suit has been filed by the defendant No. 1 against the Islamia College for the recovery of rent demanded from the institution at the rate of Rs. 58,000.00 per month. Mr. Khalid Ishaque, learned counsel for the defendants, urged that the affairs of the College had been probed by various agencies on a few occasions, and eventually the control of the organization has been left in the care of defendant No. 1. Be as it may, the fact still remains, that it cannot be said that all is well with the affairs of the trust. The mere fact that the meeting of the trust had not been held for a number of years and that its accounts had never been deposited in a bank are not matters which can be taken with equanimity. Looking to the allegations preferred which prima facie do not seem to be without substance, and keeping in view the interest of the trust it appears to be a fit case where, till the pendency of the suit, the management and the conduct of the trust should be left in the hands of a Receiver to be appointed by the Court. The selection of the Receiver will be made with duo notices to the parties. Notices shall be issued to the plaintiffs and the defendants through their counsel for 17-3-1972.
S. A. H.