' This revision is directed against the order, dated 9-8-1987 passed by the learned VIIIth Additional District Judge, Karachi East, in C.A. No,114 of 1996, which was preferred by the respondents Nos.1 to 9, against the applicant challenging the judgment and decree, dated 28-8-1998, passed by the learned VIIth Senior Civil Judge, Karachi East, in Civil Suit No,220 of 1991.
2. Briefly stated the facts are that the applicant/plaintiff filed Suit No,220 of 1991 (Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others) for the following reliefs:--
(a) declare that the so-called Macca Masjid Trust is illegal, unlawful, unauthorised and without any legal effect.
(b) declare that the Trustees of the so-called Trust of Macca Masjid as unlawful, unauthorised having no legal right and title/interest.
(c) declare that the acts of defendants Nos.2 to 9, Trustees done/being done in the name of the so-called Macca Masjid Trust, as illegal, unlawful, unauthorised and of no legal effect.
(d) declare that the plaintiff Society is the only legal, lawful and authorised organization to run and control the affairs of administration and management of Maccca Masjid, situated at Block "A", Adamjee Nagar, Tipu Sultan Road, Karachi.
(e) to pass the decree for cancellation of the so-called Macca Masjid Trust, defendant No,1 formed on 19-1-1991 formed by defendants Nos. 2 to 9 and registered with defendant No,10.
(f) to pass the decree against the defendants Nos.2 to 9 to vacate and hand over peaceful control over the affairs of administration and management of. Macca Masjid, situated in Block "A", Adamjee Nagar, Tipu Sultan Road, Karachi, to the plaintiff Society.
(g) to grant permanent injunction against the defendants or any other person or persons acting on their behalf to act for or on behalf of the so-called Macca Masjid Trust or in the name of any other organization or body other than the plaintiff Society.
(h) to grant permanent injunction against the defendants Nos.2 to 9 from stopping the members of plaintiff Society and regular Namazies of Macca Masjid from offering Salam in the Macca Masjid, situated in Block "A" Adamjee Nagar, Tipu Sultan Road, Karachi
(i) to grant permanent injunction against the defendants Nos.2 to 9 from calling the Tablighi Jamat and allow them to give Dars in Macca Masjid which is regularly being given/arranged by plaintiff Society.
3. The applicant/Society alleged, inter alia, that plots were earmarked for construction of mosques and also constructed the mosque in each block out of its own funds. There are three mosques within this Society namely, Macca Masjid, Madina Masjid and Maryam Masjid. According to applicant, affairs regarding maintenance and management of each mosque were controlled by the Society through Sub-committees. In the first week of January, 1997, the Society came to know that the respondents Nos.1 to 9 had formed a Trust known as Macca Masjid Trust vide Trust Deed, dated 19-1-1991 and allegedly the respondent forcibly removed Imam Masjid of the said mosque.
Thereafter, on 23-1-1991 after holding emergent meeting of the applicants Society the matter was reported to the police and the suit was also filed.
4. The respondents/defendants contested the suit and besides taking preliminary objections regarding maintainability of the suit also averred in their written statement that majority of the Namazis of the mosque authorised them to create a Trust and to become Trustees and thereafter, took possession of the mosque to run its affairs which annoyed the applicant as allegedly their monopoly had ended. The learned trial Court settled the following issues:--
(1) Whether the suit of the plaintiff is not maintainable according to law?
(2) Whether the suit of the plaintiff is undervalued?
(3) Whether the plaintiff's society had earmarked plots of land for construction of mosque and have constructed the subject Masjid viz. Macca Masjid?
(4) Whether the plaintiff's Society controlled the affairs of administration and management of Macca Masjid through subcommittee elected annually? If so what is its effect?
(5) Whether the defendants are entitled to create trust for managing the affairs of Macca Masjid and whether the said trust is illegal, void, unauthorised and unlawful and the same is liable to cancelled?
(6) Whether the defendant illegally dispossessed the plaintiff and forcibly took the management of the Macca Masjid under the guise of illegal trust if so, what is its effect?
(7) To what relief, or reliefs, if any the plaintiffs are entitled?
(8) Whether the suit is barred by section 92, C.P.C.?
(9) .............................
5. The parties led evidence. From the side of applicant/plaintiff, Amin Gazi filed his affidavit in evidence and produced certain documents of the Society, while from the side of respondents/defendants respondent No,1 Iqbal Shakoor filed his affidavit in evidence. He also produced documents of his Trust.
6. Issues Nos.1, 2 and 8 were answered in negative while issues Nos.3 and 4 were answered in affirmative by the learned trial Court and ultimately the suit was decreed on 28-8-1996. However, appeal filed by the respondents i,e, C.A. No,114 of 1996 the above decree was set aside by the learned VIIIth Additional District Judge, Karachi East vide judgment, dated 9-8-1997, which has been impugned in this revision application.
7. I heard learned counsel for the parties and also perused the record.
' Learned counsel for the applicants submitted that the respondents dispossessed the applicants by creating illegal Trust as a Trust can be created under Muslim Law by a person who owns the property. In support of his submissions, the learned counsel relied upon section 176 of the Muslim Law (D.F. Mulla's Principles of Mohammadan Law) p.257, PLD 1993 Kar. 605 and PLD 1994 Kar.
375. It was further contended that the respondents did not raise any objection as to the maintainability of the suit except section 92, C.P.C. Which was disallowed by the learned trial Court.
Other contentions of the applicant are summarised as under:-- "(a) The learned appellate Court allowed the appeal of the respondents altogether on different grounds. The applicant had not pleaded breach of Trust illegally created by the respondents regarding Macca Masjid and filed suit for cancellation of the Trust being illegal and void,, therefore, section 92, C.P.C. Would not be applicable to the facts of this case. He cited, Khadam Hussain and others v. Ata Muhammad 1970 SCM R 127.
(b) The trust deed was not produced because respondents themselves produced photostat copy of the disputed Trust Deed, through respondent No,1 Iqbal Shakoor. No objection was taken by the respondents regarding the production of the photostat copy of the said document and, therefore, it was accepted. Such objection cannot be taken at the appellate stage. He relied upon Ghulam Muhammad v. United Estate Agency for International Development (US A/D) Mission, Islamabad 1986 SCM R 907 and Gulzar Hussain v. Abdul Rehman and another 1985 SCM R 301.
(c) The plaint was verified by the secretary of applicants Society which is in accordance with the provisions contained in Order 29, Rule 1, C.P.C. Even otherwise this objection was not raised by the respondents in their written statement. Therefore, they could not be allowed to raise such objection at the appellate stage. See Emirate Bank International Ltd. v. Super Drive-in Ltd. 1990 M LD 538.
(d) Section 92(1), C.P.C. Provides that when the suit is for breach of trust, the permission of Advocate-General is required but these provisions are not attracted to the facts and circumstances of this case as was held by the learned trial Court. Section 92, C.P.C. Is applicable to Public Trust and not to the Private Trust and the respondents Secretary in his cross-examination admitted that the Trust in question is a private Trust and it pertains to the affairs of Macca Masjid only.
(e) No objection was raised in the written statement and no issue was framed in the suit regarding proof of the original trust deed and this is not even required by section 39 of the Specific Relief Act.
(f) Section 7(iv)(c) of Court Fees Act, provides for a declaratory decree and consequential relief to obtain declaratory decree or order where the consequential relief is prayed for. In all such suits the plaintiff shall state the amount at which he valued the relief sought. In the instant case, the plaintiff in para. No,23 of the plaint had accordingly valued the suit in terms of the above provisions and even otherwise the Trust sought to be cancelled was in respect of the affairs of the Macca Masjid which cannot be evaluated in terms of money and, therefore, the plaint was properly valued.
8. Learned counsel for the respondents on the other hand submitted that:-
(a) Suit filed by the applicants was hit by section 92, C.P.C. As no permission from the Advocate- General was obtained to file the suit against the Trustee and in this regard he referred to prayer clauses (D), (E) and (F) of the plant, which according to him indirectly seek removal of the trustees in existence and for this purpose certain conditions laid down under section 92, C.P.C. Were required to be fulfilled. He elaborated this submission by submitting that this being a legal objection can be raised at any time. The applicant had prayed for a declaration as well as cancellation of Trust Deeds with regard to the present Trust but if such a declaration is allowed, obviously the present Trustees will be removed and in their place new trustees would be appointed.
Likewise, if the present Trust Deeds allowed to be produced in evidence, as this was not done regarding Macca Masjid Trust Deed, therefore, this cancellation will not be sustainable in law.
(b) Possession of the mosque has been sought but no court-fee has been paid under section 7(4)
(c) of the Court Fees Act.
(c) The suit was filed without consent of the Advocate-General, as required under section 92, C.P.C., therefore, it was not maintainable.
(d) The person who signed and verified the plaint was not authorised.
9. At the very outset I will take up the objection of the respondent based on the provisions of section 92, C.P.C. Which is reproduced as under:- - "92. Public Charities.--"- (I) 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 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--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated 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.
(2) Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust asis therein referred to except in conformity with the provisions of that subsection."
It is evident from the aforesaid section that consent of the Advocate-General is condition precedent for filing of suit for seeking various kinds of reliefs in relation to public charity. From the photostat copy of the trust deed, filed by the defendant, which document was also .Admitted by the applicant/plaintiff, this trust is created for the benefit of "Namazis" in general and the trust was a public trust, which is covered under sect* 92, C.P.C. The relief which A the applicant/plaintiff has sought in the plaint, if granted will result in removal of the trustees and, therefore, the learned appellate Court rightly came to the conclusion that prior consent of the Advocate-General was necessary under the aforesaid provisions.
10. Admittedly, the subject plot was earmarked for mosque which being a place of worship is available for every Namazi. So far as trust created by the respondent/defendant No,1 is concerned, it was yet to be decided whether it was created lawfully or not. It has also come on record that the mosque in question is also under the control and management of the trustees of the trust created by the respondents/defendants Nos.1 to 9. It is not necessary for the purpose of section 92 that the trustee should always be dejure. Even defecto and constructive trustees are also covered under section 92. Reference may be made to the judgment reported as Mian Jan v. Fakir Muhammad PLD 1960 Kar.
420. In the circumstances of the case, I find that consent of Advocate-General was necessary, which requirement is mandatory under section 92, C.P.C. Since such consent was not obtained, the suit was not maintainable.
11. Now coming to the very trust deed, admittedly the copy of said trust deed ought to be cancelled in suit was not produced alongwith the plaint. It is contended by the learned counsel for the applicant that its non-production was of no consequence because the witness of the respondent himself produced it. On the other hand the learned counsel for the respondent vehemently urged that the applicants were under a legal obligation to have filed it alongwith the plaint. Since they did not do so, the suit was not competent. Reliance was placed in this connection on section 39 of the Specific Relief Act. Reference can also be made to Order 7, Rule 15. C.P.C., which requires that if any such document is not in possession of power of the plaintiff, he shall "if possible state in whose possession or power it is". The consequences for non-production of such document is provided in Order 7, Rule 18, C.P.C., which reads as under:-- "18. Inadmissibility of document not produced when plaint filed.--- (1) 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 of the Court, be received in evidence on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory,"
12. The production of copy of the trust deed by the respondent/defendant might have its evidentiary value, but it would not cure the defects resulting from plaintiff/applicants failure to produce it along with the plaint or at a subsequent stage without leave of the Court. Moreover, the trust deed being a registered document, the plaintiff could have obtained its certified copy from the Sub-Registrar concerned. I find that the plaintiff even did not serve notice upon the defendants/respondents, to produce that document. There is thus, no scope to interfere with the findings of the learned appellate Court on this issue in exercise of revisional jurisdiction.
13. The learned appellate Court also came to the conclusion that Muhammad Amin Chotani, Honorary General Secretary of the plaintiff who signed and verified the plaint was not competent to do so. I have seen the resolution which the plaintiff/applicant filed in Court, but there is nothing in it to show that the Secretary-General of the plaintiff was authorised to sign and verify the plaint. No other document was brought on record to show the authority of applicant Amin Chotani to sign and verify the plaint and, therefore, findings of the learned appellate Court on this issue are also unexceptionable.
' The upshot of the above discussion is that this revision having no merits is dismissed with costs.