1. ANWAR MANSOOR KHAN, J.--- C.M.A. No 6199/2000. This is an application under Order VII, Rule 11, C.P.C. Praying inter alia, that the plaint be rejected on the ground that the suit is barred under Section 92 of the C.P.C. As, the plaintiff has not obtained, the consent in writing from the Advocate- General Sindh as is required by law. Before proceeding it will be important to cite the provision of Section 92 which reads as under:- "92. Public Charities (1) In the case of any allege 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 Teemed necessary for this' administration of any such trust, Advocate General, or to% or more persons having an int( rest 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 account and inquiries; e) declaring what proportion of the trust-property or of the - interest there in 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 ether relief as the nature of the case may require.
(2) Save as provided by the Religions Endowments Act, 186 3, no Wit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of env such trust as is therein referral to except in conformity with the provision of that subsection".
2. It is the case of Mr. NO S. Zuberi that the present suit has been filed by the plaintiff for the purposes as contained in Section 92 of the C.P.C where the prayes, if read would bring it within the. Ambis of Section 42 of the C.P.C. Mr. Abid refers to Paragraphs Nos. 12, 13, 20 and 22 which reeds as under:-
(12) That the defendants Nos. 1 and 2 are treating the trust as their personal property. This can be verified from the fact that these defendants had earlier constituted another charitable trust of the same name on 1.10.1999 alongwith other persons. The said trust was registered on 25.10.1999. Copy of the registered trust deed dated 25.10.1999 is Annex-E.
(13) That the same time a partnership deed was entered into by the defendant No. 1 and the Secretary General of the said trust. This clearly negated the trust deed and demonstrated the true nature of the transactions between the parties as against the charitable trust which was created for public purposes. -Copy of the partnership deed dated 1.10.1999 Annex F.
(20) That the defendants are acting in the most arbitrary and irresponsible manner and have staked the career of over 300 students who.Are presently at ISM.
(22) That on account of their misconduct the defendants are liable to be removed from the trust in accordance with Section 92 of the Code of Civil Procedure, 1908. The plaintiff is moving a proper application to the learned Advocate General, Sindh, for permission to file appropriate proceedings for such purpose.
3. The prayer in suit as under:
(a) Declare the plaintiff is the General Secretary/Trustee of the Trust and Administrative Head of the Institute of Scientific Management, Karachi.
(b) Declare that the defendants have no lawful authority to remove the plaintiff as General Secretary/Trustee of the Trust and Administrative Head of ISM.
(c) Grant a permanent injunction prohibiting the defendants from taking any adverse action against the plaintiff including but not limited to removing him as General Secretary/trustee of the trust and Administrative Head of ISM or from interfering with the discharge of his functions as such or from taking any adverse action against the plaintiff.
(d) Any other relief which this Hon'ble Court may deems just and proper in the circumstances of the case.
(e) Grant costs of the suit.
4. According to him it is apparent, that in the guise of this suit, the plaintiff intends to take over the entire trust, which is a public charitable trust and therefore, unless a permission is sought and obtained under Section 92 from the Advocate-General, Sindh the suit would not be maintainable.
5. Mr. Abid Zuberi has referred to the judgment of Fakir Shah and others Vs. Mehtab Shah Pir Bukhari Masjid Committee and others (PLD 1989 Supreme Court 283), in which, after having discussed Section 92 it considerable length it was held that "in view of the what has been stated above we fell that having regard to the substance of the case pleaded in the plaint, the suit was of the nature contemplated by Section 92, C.P.C. And therefore, it was not competent without the requisite prior sanction of the Advocate-General. The plaint in the suit itself disclosed that the suit was barred under the provisions of law and consequently the plaint was liable to be rejected under Order VII, Rule 11(d), C.P.C." According to him the present suit also and specifically where in para 12 it is mentioned that the removal by the defendants of the plaintiff would be arbitrary and irresponsible and would stake the career of 300 students who are presently studying at ISM. According to him therefore this in fact, fall within the. Parameters laid down by Section 92.
2. Mr. Abid has also referred to the case of Kathiawar Cooperative Housing Society Ltd. Vs.. Macca Masjid Trust (2000 C'LC 1182), in which, according to him a similar position was taken up and a declaration that also was sought that acts of the defendants in that suit being defendants Nos. 2 to 9 are illegal unlawful and unauthorized: Further, in that said suit, a declaration was also sought that the plaintiff's society is the only legal and lawful authorized organization to run and control the affairs,. Administration and management of Mecca Masjid. According to him in this case also the plaintiffs seek that he is a person who is ;authorized to run the said ISM as Administrator thereof where the 300 students are studying. In that case it was held as under:- "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 de jure. Even de fecto 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."
3. On the other hand Mr. Khalid refers to the plaint and states , that the suit has been filed by the plaintiff to remedy a private right and note a public right. According to him the plaint is clear and categorical that, it does not Ian under Section 92 of the C.P.C. According to him, in fact the plaintiff had applied his mind and has stated in para 22 that, for the purposes of the removal of the trustees due to their misconduct an application had been moved to the Advocate-General for seeking appropriate permission for the purposes of thing a separate suit which has been filed and is Suit No. 1030 of 2001. According to him, the present case is only to remedy his own personal rights.
6. He has referred to the case of:-
(a) Registered Corporation named Jamiat Dawat wa Tabligtr Islam Vs. Muhammad Sharif (AIR 1938 Lahore 869) ins which it has held:- "On a consideration of the authorities referred to above, we are of opinion that this suit does not require any sanction under S. 92, Civil P.C. It is true that the suit has been instituted by a person claiming to be a trustee for a declaration that he is a trustee and is entitled to manage the institution as such, but the relief he claims is in his individual capacity and not in a representative capacity. The suit is against a rival trustee or one who claims to be a trustee. In neither case is an injury to be a public right or interest involved. Whoever happens to succeed will hold the trust property as mutawalli and not his own right. The dispute between the two rival trustees inter Se therefore is neither a suit for the removal of any trustee nor for appointing a new trustee, nor for vesting any property in a trustee, nor does it fall under any other head from (d) to (g) and will consequently, in view of the dictum of their Lordships of the Privy Council, not fall under head (h).
7. Counsel for the appellant contends that the plaintiff in brining the suit in its present form has tried to circumvent the law, but we do not consider that this is so. We accordingly held that S. 92, Civil Procedure Code is no bar to the suit."
(b) Tirumalia Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga Committee (AIR 1943 Madras 466):- "On thew other hand we 'find ow-Selves in full agreement with the opinion of Varadachariar, J. That in deciding whether a suit falls with S. 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing' and to the purpose for which the suit is brought."
(c) Kabul Singh Vs. Ram Singh (AIR 1986 Allahabad 75):- "In Swami ParMatmanand Saraswa ti (AIR 1974 SC 2141) (supra) upon the death of Buncder the terms of his will S was installed as the head of the Math. A section of the worshippers asserted that there was no will duly made by B; that S could not have been installed as the head of the Math and that K was instead duly installed head of the Math. Their Lordships of the Supreme Court laid down:- ".. And, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N.
8. Shammukham Chetty v. M. Govinda Chetty) AIR 1938 Mad. 92; Tirumalai Devasthanams v. Udiawar Krishnayya Shanbhaga, AIR 1943 Mad 466 (FB); Sugra Bibi v. Hazi Kummu Mia; AIR 1969 SC 884 and Mulla: Civil Procedure Code (13th Edn.) Vol. 1, P. 400). A suit whose primary object or purpose is to remedy the infringement of an individual right Or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section, but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of The public for vindication of public rights, and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose' for which the suit was brought. This is the reason why trustee of public trust of a religious nature are preclud3d from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92."
(d) Khadim Hussain Vs. Ata Muhammad (PLD 1967 Lahore 915).
9. "Section 92 was framed as a clog to wasteful and frivolous litigation against the trustee and for providing for efficient administration of the trust property by one of the methods provided therein as is clear from clauses (a) to (g). To construe sub-clause (h) so as to enlarge its scope would not only be against this intention of the Legislature, because if it was so intended it would not have been necessary to classify the relief which was to be covered by Section 92 in the section itself. By doing so, Legislature has made it clear that it had no intention of giving a wide scope to Section 92.
10. Even otherwise such an interpretation would be against the principle referred to above that if law restricts the established jurisdiction of a Court it shall be construed strictly."
(e) Khialdas Vs. Mehraj Gopi Krishan (PLD 1969 Kar. 646).
11. According to the Privy Council, the intention of the Legislature in enacting Section 92 was to follow the Bombay High Court's view of the scope of section 539, it seems to me that the observations of the Privy Council quoted by me in para. 8 had reference only to representative suits filed under Order I, Rule 8, C.P.C. I am fortified in my opinion by a judgment of Madras High Court in N.
12. Shanmukham Chetty v. M. Govinda Chetty and others (1) in which that Court has also taken the same view that these observations of the Privy Council had reference only to representative suit.
13. Accordingly, I hold that Section 92 is not applicable to suits filed by trustees. In the instant case, the suit has been filed by the trustees of Hindu Panchayat of Shandadpur, therefore, the consent of the Advocate-General was not necessary for filing this suit and the objection of the defendant- appellant is without merit."
14. Fakir Shah Vs. Mehtab Shah Pir Bukhari Masjid Committee (PLD 1969 SC 283) relevant portion at page 288 reads as under:- "It will be seen from the aforesaid provisions that in order to file a suit under Section 92, C.P.C. The following conditions must be fulfilled: "(1) There must exist a trust for a public purpose of a charitable or religious nature.
(2) The plaint must either allege that there is a , breach of trust or that the directions of the Court are necessary for the administration of the trust.
(3) The suit must be a representative one on behalf of {{BLUR PAGE}} the public and not far the aSslartion of the personal rights 'of the pfaintii01.
(4) The relief cllsiitai filuSt be one of the reliefs enumerated 01 SiktieA gr '
15. If the abfieshitl cdfiditions are satisfied in regard to a suit therv'surh a suit. Cart orgy be filed in accordance with the proftriure ItrillZ MIMI in Station 92 and an aetien in any other form will be barred. Some of the principles which are well-settled in this connectron are that in order to attract the applicability of this section it .Has to be seen whether the suit is for vindication of a public* right; and for this purpose the substance and not the form of the suit must be looked 3t. Another principle laid don is that the contents of the plaint will determine the maintainabillty of the stilt and the attfaistiori of the bar contained in Section 92."
16. Accodling to him 'everilltAll t deb *re VItzfa tkaa Fipftir Shah 's judgment by the So9Pdint di it iS lift provided that if the lorydrtions cont-riAll in Section h2 Ore made out, only then would the permission Up required to be iousht frogh the Advocate- General,
4. Having gene through the plaint, the judgments and prayer contained thprein one would rewire analysis is to whether the conditions contained in Section 02 are fulfilled for tile purposes of seeking permission from the Advocate-Generld, Sindh. There is no cavil to this proposition that only If a Wit fall within the domain of the provision of Section'92 would permission to be required to be taken.
17. The present suit has been filed by the plaintiff stating that he is General Secretary/Ttuetee of the Institute of Scientific Management Education Trust (ISM) and he is presently the Administrative Head of the institution set up under auspicious of the Trust. Paragraph 1 is the crucial perligrerph, which needs some analysis read with the prayer clause. A distinction has been created by the POihtitf as tegsrds the trust and institution. The plaintiff it tdmilliOdlp a Genorel hectetery and trustee of the Trust, /Mt ash Atmisistrieve Head of the Eduolitiorral{{BLUR PAGE}} Institution created by the trust. He seeks to continue as the Administrative Head of the Education Ins*.Itution. I am therefore, of the view that the case does not relate directly to the management of the trust and is thus cover by the provision of 92, application is therefore, dismissed.