1. ' This revision application is directed against the impugned judgment dated 7-5-2001, passed by the learned Vth Additional District Judge, East-Karachi, whereby Appeal No,165 of 2000 was dismissed. The order , dated 26-9-2000 passed by the learned XIth Civil Judge, East-Karachi, was challenged and after service of the notice an application under Order VII, rules 11, C.P.C. Was filed and after hearing the learned counsel for respective parties, the Suit No,2 of 2002 was dismissed. The applicant has preferred this application against the aforesaid judgment.
2. ' The brief facts, as enumerated in Suit No,2 of 2002 are that suits were filed by the applicant for declaration and permanent injunction in the Court of XIth Civil Judge (East) Karachi against the respondent stating therein that applicant is a registered religious Trust and supervising, managing and administering Jamia Masjid Muhammadia and Madressah-e-Faizia. It is alleged that prior to the registration of the aforesaid trust the entire administration, control and managing functions of both Masjid and Madressah were being carried out by the Managing Committee by persons (Namazis of Deoband School of thought) since 1955.
3. ' Throughout the Pesh Imam and Moazzin of said mosque and Muntazmeen were being appointed from the said Muslak and it is asserted that defendants/respondents are neither Namazis of the aforesaid mosque nor they have any concern with the Managing Committee or Trust so without legal authorities the respondents with mala fide intention to grab the mosque and Madrassah administration and control over it created interference in running and carrying out the functions of the Trust and thereby they were perturbing the peaceful and harmonious atmosphere of the mosque. As the said persons are professing Brelvi school of thought and they without any locus standi laid their claims through Tanzeem Anjuman Mahammadi being a trade body .
4. ' The respondents were requested not to interfere with the smooth working of the mosque but they did not pay any heed and in order to fulfil their designs to take over the mosque and Madressah created law and order situation, which resulted in sealing the said mosque by the S.D.M. Of the area.
5. ' In view of the prevailing situation temp orary measures were taken and Imam and Moazzin were appointed by the Auqaf Department while the whole management and supervision up to this time is being carried out by the Trust. The Imam and Moazzin are from Deobandi Muslik. Since there was no hope for improvement in the conduct of the respondents/defendants as they were not restraining themselves from creating obstacles and hurdles in the way of Trust, in view of situation, the Board of Trust reached to the conclusion that it would be fair and proper to seek relief from the Court of law. Therefore, the suit was filed in the Court having jurisdiction. The prayer clause as per plaint is reproduced hereinbelow:-- "A. To hold and declare that Jamia Masjid Muhammadia and Madrassah Faizia is run and managed under the control of Registered Trust of the plaintif f. B. To hold and declare that the interference of the defendants in the administrative control of the Trust of the plaintif f is unlawful and illegal.
6. (c)Restrain the defendants, their representatives, executors, collaborators and likewise from causing and creating obstacles and hurdles and panic amongst the Namazees' of the plaintif f mosque and administrative control of the Registered Trust.
7. (d)Cost of the suit.
8. (e)Any other relief or remedy which this Honourable Court deems fit and appropriate.
9. ' The respondents/defendants were served with the suit and they filed an application under Order 7, rule 11, C.P.C. And after hearing ar guments of both sides, the plaint was rejected under Order 7, rule 1 1, C .P .0 .
10. ' An appeal against the said order was preferred before the learned District Judge, East-Karachi, who marked it to the Additional District Judge and it came up for hearing before the learned Vth Additional District Judge, East-Karachi, who after hearing the parties dismissed the appeal. Hence the present revision application has been filed.
11. ' It is contended by the learned counsel for applicant that the impugned orders and judgments are bad in law, perverse and are not in accordance with the pronouncement of the superior Courts and the judgment and decree are based without jurisdiction in excess of jurisdiction vested in two Courts below . It is further urged by the learned counsel that the two Courts below have wrongly held that the suit comes within the ambit of section 92, C.P.C., therefore, the permission of the Advocate-General was necessary is without jurisdiction vested to the two Courts below . It is further argued that the learned Additional District Judge illegally and wrongly held that the plaintif f has no legal character to file and or instituted the suit though suit has been filed by the Trustee of the Trust in question and it was not a suit filed by some outsider in the repre sentative character . Therefore, the suit was fully maintainable at law as such the' two Courts below have failed to exercise the jurisdiction vested with them. Mr. Mahmood Ahmed Khan, learned counsel for applicant, has relied upon an unreported judgment of the Honourable Supreme Court of Pakistan in Trustees of Jamia Masjid Haft Sultan v. Zakir Hussain and others Civil Appeal No,12-K of 1992 and it is contended that no permission of the Advocate- General is required for filing a suit when there are no allegations against the trustees and as such the impugned orders/judgments are contrary to law. Learned counsel has also relied upon the case of Herendranath Bhatacharia and others v. Kaliramdas and others reported in AIR 1972 SC 246 in Civil Appeal No,1273 of 1966. It is contended that section 92 does not affect the maintainability of a suit wherein no allegation is made that there is a breach of trust or that the directions from the Court are necessary for the administration of the Trust.
12. ' Mr. Muhammad Aslam Choudhry , learned counsel for respondents Nos.1 to 9 have supported the judgment of the trial Court as well as the Appellate Court and submits that the provisions of section 92, C.P.C. Were properly considered by the two Courts below as the Trust had been registered by the trustees, therefore, filing of the suit or seeking any other relief the permission of the Advocate-General is necessary . So in this case no opinion or permission was obtained by the applicant, therefore, the suit is barred under section 42 of the Specific Relief Act as the applicant has no locus stand to file the suit and the order passed by the learned trial Court as well as by Appellate Court is proper orders. Learned counsel in support of his arguments has relied upon an authority , reported jn 2000 CLC 1 182.
13. ' I have considered the arguments advanced by the learned counsel for the appli cant as well as learned counsel for the respondent. I have also gone through the impugned judgment and orders and other material placed on record and the case-law cited by the respective learned counsel.
14. ' It will be advantageous to reproduce section 92, C.P .C. As under:-- "Section 92, C.P .C.
15. Public charities.--- (1) in the case of any alleged breach of any express or constructive trust create for public purpose 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 instit ute 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 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."
16. ' It is only to be seen whether the provisions of section 92, C.P.C. Are applica ble in this case or not. As per section 92, C.P.C. It is manifest that there is a Trust for a public purpose of a charitable or religious nature and if there is a breach of trust or the directions of the Court are necessary for administration of the Trust. From the perusal of the plaint, it is clear that the relief has been sought against the respondents, who are allegedly not trustees or concerned with the Trust property and it is alleged that the respondents are creating hurdles in smooth running of the administration. There is no averment of any allegation of breach of trust by anyone or that it is necessary for administration of the Trust that the directions of the Court may be issued. According to the averments made in the plaint it is clearly stated that unauthorized persons are interfering with the management and administration of the mosque and Madressah and respondents are creating hurdles to the applicant, who is managing it. If the prayer clause is to be read in just a position with the clauses mentioned in section 92, C.P.C., it is manifest that section 92 will not come into play for seeking consent of the Advocate- General, Sindh for instituting the suit. The trial Court found that the suit was not maintainable owing to non- compliance with the provisions of section 92, C.P.C. And it was held that the suit did fall within section 92, C.P.C. The Appellate Court concurred the similar view that the applicant has not obtained prior permission from the Advocate-General of Sindh while filing the suit and the applicant has no legal character under section 42 of the Specific Relief Act and the suit was barred by law. A suit under section 92, C.P.C. Is of special nature which presupposes the existence of a public Trust of a religious or charitable character . Such suit can proceed only on the allegations that there is a breach of such trust or that directions from the Court are necessary for the administration of the Trust. It is quite clear that none of the reliefs claimed by the applicant/ plaintif f fall within the ambit of section 92, C.P.C. The decla ration which were sought could not possibly attract the applicability of section 92, C.P.C. In view of this position, it is held that non-compliance of section 92, C.P.C. Will not affect the maintainability of the suit and two Courts below have illegally and wrongly held that the suit comes within the ambit of section 92, C.P.C. As such permission of Advocate-General, Sindh was necessary , is without jurisdiction vested to them. The applicant/plaintif f has legal character to file or institute suit though the suit has been filed by the trustee of the Trust in question and it was not filed a suit by some outsider . In the respective character , therefore, the suit was maintainable before the trial Court and as such the two Courts below have not exercised the jurisdiction vested to them under the law. As per provisions of section 92, C.P.C. There is no breach of any express or constructi ve Trust between the trustees whereas)t was asserted that the defendant/respondents are neither Namazis of above-said mosque nor have any concern on the Managing Committee or Trust so without any lawful authority with mala fide intention wants to grab the mosque and Madressah administration and control in order to create interference in the running and carrying out the functions of the Trust and thereby perturbing peace and harmonious atmosphere of the mosque. The impugned orders and judgments passed by two Courts below are set aside. The case is remanded to the learned trial Judge to decide the case on merits. The partie s shall bear their own cost. Since the whole matter has been decided, therefore, the listed applications have become infructuous; hence the same are dismissed as such.