' Through C.M.A. No,7168 of 2001, the defendant No,3 seeks rejection of plaint in terms of Order 7, rule 11, C.P.C. On the ground, inter alia. That suit seeking relief without consent of the Advocate-General in terms of section 92 of C.P.C. Is barred. The suit is also barred under Order 2, rule 2, C.P.C.
' In order to understand the contentions raised through this application, it is necessary to state the following facts:-- ' The plaintiffs filed the suit for cancellation, permanent injunction and damages with following reliefs:--
(i) Cancellation of the deed of appointment of Trustees dated 8-10-1990 and registered at No,362 with Sub-Registrar T, Division III, Karachi and directing the defendants to surrender the same in Court for cancellation and to cancel the same and to direct the recording of cancellation in the record of Sub-Registrar.
(ii) A permanent injunction restraining the defendants from representing themselves to be the Trustees of Islamic Education Trust and making any claim or recoveries or entering into transaction, contract or dealings on the basis of such representation.
(iii) Compensation and or damages in the sum of Rs,5,000,000 to be paid by defendants to plaintiffs as Trustees of the Trust.
(iv) Rs,31,92,000 or such sum as the Hon'ble Court may decide and pay for wrongful recovery and gain made by defendants.
(v) Interest/Mark-up at 20% per annum from date of suit till payment.
(vi) Costs of the suit.
(vii) And further and or other relief as the nature and or circumstances of the case may require.
2. It may be stated that (i) Abdul Rehman, (ii) Muhammad Hussain, (iii) Arif Bhai 011a, (iv) Abdul Hameed Sufi, and (v) Miss Mumtaz formed a Trust by registered deed on 4-5-1958. Known as "Islamic Education Trust" with the following object:--
(a) To grant aid, scholarships, stipends and financial assistance for educational purposes to poor and deserving students.
(b) To aid and assist schools, colleges and educational institutions.
(c) To give medical aid to poor and deserving persons and to contribute cash or kind to hospitals, maternity homes and dispensaries now established or hereafter to be established for the benefit of poor and deserving persons.
(d) To give aid and financial assistance to Masjids and other places of worship.
(e) To give donations and aid for the purposes of providing food, clothing and other necessities of life to deserving poor or refugees or other people.
(f) To contribute towards establishment of houses, hutment or residential for deserving poor refugees and destitute people.
(g) To help, aid and provide financial help of any nature to poor persons in times of natural calamities such as floods, earthquakes and famines.
(h) To pay or contribute for the support of the blind decrepit and diseased persons.
(i) And generally to extend help, aid or assistance whether in cash or kind to poor persons and religious or charitable institutions which in the opinion of the Trustees are considered to be deserving of help or aid from this Trust.
3. The case as put forth by the plaintiff is that defendant No,1 has falsely represented himself as son of late A.M. Qureshi to take wrongful advantage of the name standing status and reputation of late.
A.M. Qureshi with wrongful motives to make wrongful gain on passing of late A.M. Qureshi and got fraudulent deed of appointment of new Trustees, registered on 8-10-1990, wherein the defendants Nos.1 and 2 fraudulently represented that they are Trustees and wrongfully purported to appoint defendants Nos.3 to 5 as Trustees as per Annexure J. In furtherance of fraudulent intent and object the defendant untilized the said false and fraudulent deed to withdraw fraudulently all the rents deposited in Court and fraudulently withdrew an amount of Rs,2,66,000 in collusion with the Principal of College and Officers of Education Department. Thus they are using false and fraudulent deed to perpetuate fraud and to make wrongful gain for themselves and cause wrongful harm and loss to the Trust. The defendants are not the trustees of the Trust, they are liable to account for wrongful gain and to be restrained as trustees of the Trust and deed is liable to be cancelled. They are liable to account for wrongful gain of Rs,2,66,000 and 20% per annum gain.
4. At the hearing of this application, I had advantage of the hearing full arguments from the learned counsel for the parties. The grounds raised and conversed before me by the defendant's counsel precisely was that the suit as framed is barred for want of necessary permission under section 92 of the C.P.C.
5. Rule 11 of Order 7, C.P.C. Enjoins upon the Court to reject the plaint under the circumstances which have been enumerated therein, which reads as follows:-- "11. Rejection of plaint. ---The plaint shall be rejected in the following cases---
(a) where it does not disclose a cause of action,
(b) where the relief ,claimed is under-valued, and the plaintiff, no being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaintiff is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court. Fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
(The clauses (b) and (c) of rule 11 of Order 7 are not applicable to proceedings before the High Court in cases of its ordinary or extraordinary civil jurisdiction).
6. It is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application.
' The principles involved are two-folds in the first place, it contemplates that a still born suit should be properly buried, at its inception, secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may find a properly constituted suit.
' It appears from the language of rule 11 of Order 7 that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what has been bound to collapse as not being permitted by law.
7. Before proceeding further, it would be advantageous to highlight the distinction between public and private Trust.
' One may refer the distinction drawn between the Private and Public Trust by Supreme Court of India in Deok Nandan v. Murlidhar AIR 1957 SC 133, by approving the decision of Calcutta High Court in case of Haji Muhammad Nabi Shirazi and others v. Province of Bengal and others AIR 1942 Cal.
343 and held at the distinction between the private and public Trust, is that whereas in the former the beneficiaries are specific individuals in the latter they are the general public or a class thereof.
' It was further held that While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incaptable of ascertainment. The above distinction between the private and public Trust was followed by Dacca High Court in Umesh Chandra Banik and others v. Rai Shahed Abinash Chandra Bhattacherjee and others PLD 1968 Dacca 124.
8. To ascertain whether "Islamic Education Trust" is a private or public Trust, one has to refer the object of the Turst, contained in the deed itself, copy thereof has been filed with plaint, Annexure.
' The object of the Islamic Education Trust has been reproduced by me in para. 2 above only to ascertain whether the instant Trust is a private or public Trust. From the bare reading of the object, it cannot be said to be a private Trust as the beneficiaries are not specific individuals but are general public or class thereof, which are incapable of ascertainment. Therefore, I have no hasitation to hold the "Islamic Education Trust" is a Public Trust for the public purposes.
9. In order to appreciate the legal points involved, it is advantageous to reproduce section 92 of the C.P.C.
"92. Public charities. ---(1) 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 portion of the trust-property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing 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 as is therein referred to except in conformity with the provisions of that subsection."
10. Section 92 of C.P.C. Contemplates for filing of suit, in the nature envisaged by section 92(1) toobtain a decree for any one or more of the reliefs enumerated in clauses (a) to (h) by the Advocate-General or two or more persons having interest in the' Trust with the consent in writing of the Advocate-General. The relief in respect of the Trust enumerated in clauses (a) to (h) of subsection (1) are (a) removal of trustee, (b) appointment of new trustee, (c) vesting of any property in trustee, (d) directing for accounts and inquiries, (e) declaration of the proportion of the trust property or of the interest therein allocated to particular object of the trust (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged, (g) settling of a scheme; or (h) granting such further or other relief as the nature of the case may be required.
11. There is no cavil with the proposition that the proceedings involving the trust or its property, the permission of Advocate-General in terms of section 92, C.P.C. Is mandatory, for reference, casts of (1)1 Pramatha Nath Mullick v. Pradhyumma Kumar Mullick and another AIR H 1925 PC 139, (2) Janaki Bai Ammal v. Sri Triuchitrambala Vinayakar of Melman AIR 1935 Mad.
825. (3) Raje Anandrao v. Shamrao AIR 1961 SC 1206, (4) Mehboob Elahi v. K.K. Idrees PLD 1955 Lah.
242, (5) Charan Singh and another v. Darshan Singh and others AIR 1975 SC 371 can be referred.
12. The suits for the enforcement of private rights are not governed by section 92. The following is the illustrations of private right outside the scope of the said section:--
(i) Suit by a person claiming to be a Trustee, (ii) between two persons disputing each other status as Mutawalli, (iii) by a Muslim claiming right to use a mosque.
13. The question whether suit or proceeding falls within section 92 depends not upon the character in which the plaintiff sues, but upon the nature of the relief sought.
' In the instant case, in the fact the reliefs sought are for the removal of the defendants from the Trusteeship and for accounts, such reliefs are covered under clauses (a) and (d) of section 92, C.P.C.
14. Before proceeding further, I would like to address the objection raised by the plaintiffs' counsel about the maintainability of the application for rejection of the plaint itself on the ground that the application (C.M.A. No,500 of 1995) with similar prayer with similar fact was dismissed in the following words:-- "This application is also remained pending since the year 1995. No efforts have been made by the defendants No,1 to get this application heard. I accordingly dismiss this application. The defendant No,1 can take any legal objections if any, at the time of final disposal".
' On the basis of aforesaid observations, the learned counsel for the plaintiffs canvassed before me that the second application is barred by res judicata and to support this contention, he has referred the case of Tariq Mahmood Chaudhry, Kamboh v. Najam-ud-Din 1999 SCMR 2396, wherein the leave to appeal was refused to the petitioner, who had moved an application under Order 7, rule 11, C.P.C. In suit, filed against the petitioner therein for rejection of plaint on the ground that the suit was barred by time. The contention was repelled and thus the revision application was filed, which was also dismissed, leave was refused, with observation that learned Civil Court had already framed issue to the effect whether suit was within time and also gave finding that question of limitation in the case was a mixed question of law and fact and thus the issue could only be resolved after recording of evidence touching the controversy.
' There is no cavil with the proposition enunciated in above case that limitation is mixed question of law and fact and cannot be resolved unless the evidence is adduced. Both the question is whether the observation referred to above would constitute res judicata and the plea raised cannot be decided without opportunity to the parties to lead evidence.
15. Mr. Khalid-Javed Khan, learned counsel for the defendant has canvassed before me that where the application has not been decided on merits, dismissal of such application will not bar a fresh application based on the same fact and referred the view taken by the Apex Court in Dr. M.A.
Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139 in the following words:-- "On the point of res judicata, it cannot be ignored on merits that the first writ petition was not decided on merits. It has rightly been held by the learned Judge in the High Court that the dismissal thereof for non-prosecution did not for this reason alone bar a fresh writ petition."
' Mr. Khalid Javed Khan is right in his submission that where the application has not been disposed of on merits, mere dismissal of application for non-prosecution cannot be a bar for second application on the ground of constructive res judicata.
16. Mr. M. Aziz Malik, learned counsel for the plaintiff contended that the matter remained subject- matter of the writ petition and petition for leave to appeal before the Supreme Court, wherein the observations have been made that the controversy raised, are subject-matter of suit which may be decided in the said suit, therefore, the suit should proceed on merits. I may state that the observation for decision on points raised in writ, through suits will not make the suit maintainable, if the same is otherwise not maintainable. His further contention was that the issue has already been framed and one of the issues is whether the suit is barred under the provisions of section 92 of C.P.C. For want of consent of the Advocate-General and contended that the party should be allowed to lead evidence and matter may be decided On merits of all issues. This contention could be termed weighty if the plea raised requires evidence.
17. As I have already observed that one of the objects of the exercise of the power in terms of rule 11 is to avoid wastage of further time on the matter, which is bound to collapse, has not been permitted' by law. If the suit is barred for want of mandatory requirement then the exercise in recording of evidence would be an exercise in futility.
'Therefore, the maintainability of the suit in terms of section 92, C.P.C. Is to be examined to avoid further delay and to provide an opportunity to the plaintiff to retrace and if permissible in law, find a properly constituted suit.
18. Mr. Khalid Javed Khan in support of his contention that the suit is barred for want of mandatory consent of the Advocate-General in respect of the reliefs enumerated in clauses (a) and (h) of .Section 92 in respect of the charitable institutions, has referred the view taken in Mulivi Muhammad Ishaq and another v. The P.O.F. Cooperative House Building Society, Wah Cantt. 1989 SCMR 1052 by the apex Court that the suit concerning "Waqf" properties are covered by section 92 of C.P.C., which lays down that such suits must be brought in Court with the permission of the Advocate-General.
This being the position, it is obvious that as the consent of the Advocate-General has not been secured in compliance with the provisions of section 92 of the C.P.C., the suit was ab-initio not competent. Had the Court of first instance attended to this legal requirement, it would have taken judicial notice of the matter and either would have returned the plaint to the plaintiff or would have dismissed the suit as not competent. In the present proceedings the respondent-Society was a stranger and had no locus standi to seek declaration against the appellants. The learned Single Judge in the High Court was wrong to observe in a case of this nature that section 92 of the C.P.C.
Could not be agitated in the revisional jurisdiction because it was neither taken before the Civil Judge nor at the appellate stage. The legal position is settled that there is no estoppel against the statute. If it is found by the Court that a party which has no legal right under the law and is openly a stranger and comes to Court to secure relief in a matter, he cannot be allowed to lay any claim to the same without the requisite course.
' Similar view was expressed in Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 in the following terms:-- "It will be seen from the aforesaid provisions that in order of 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 the public and not for the assertion of the personal rights of the plaintiffs.
(4) The relief claimed must be one of the reliefs enumerated in section 92."
' If all the above said conditions are satisfied in regard to a suit then such a suit can only be filed in accordance with the procedure laid down in section 92 and an action in any other form will be barred. Some of the principles which are well-settled in this connection 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 at. Another principle laid down is that the contents of the plaint will determine the maintainability of the suit and the attraction of the bar contained in section 92.
' Mr. Khalid Javed Khan also contended that it is not necessary for the purpose of section 92 that the Trustee should always be de jure, even de facto and constructive trustees are also covered under section 92 and has referred the case of Khathiawar Cooperative Housing Society Limited through General Secretary v. Macca Masjid Tust through Secretary and 9 others 2000 CLC 1182, wherein the view taken in Mian Jan v. Fakir Muhammad PLD 1960 Kar. 420 was referred.
19. The ratio decided in above cases can be summarized as follows:--
(i) There must exist a trust for a public purpose of a charitable or religious nature.
(ii) The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs.
(iii) The relief claimed must be one of the reliefs enumerated in section 92.
(iv) A suit filed without consent/permission of Advocate-General, is not competent, plaint is to be rejected/suit is to be dismissed.
20. In the light of principles enumerated above, it is necessary to examine the plaint in order to determine the nature of suit brought by the plaintiff. As already observed that the Islamic Education Trust is a public Charitable Trust. The plaintiffs have filed the suit for removal of the defendants from trusteeship as well as rendition of accounts in terms of prayers 1 and 2. Whereas, the reliefs 3 and 4 are only consequential. There is no denial that the suit has been filed without consent of the X Advocate-General, Sindh. The relief claimed in the suit is covered by section 92 of the C.P.C., which lays down that such suit must be brought in Court with the permission of the Advocate-General. This being the position. It is clear that the consent of the Advocate-General has not been secured in compliance of the provisions of section 92 of the C.P.C. The suit is ab initio, not competent, therefore, the plaint of the suit is rejected in terms of Order 7, rule 11, C.P.C., however, with no order as to I x costs.