Judgment:
CR No.1411 of 2013(O&M) #1# IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Civil Revision No.1411 of 2013(O&M) Date of Decision:-02.03.2013 Joginder Singh & Ors......PetitioneRs.Versus Gurcharan Singh & Ors......Respondents.
CORAM:- HON'BLE Mr.JUSTICE JASWANT SINGH Present:- Mr.Jaskirat Singh Sidhu, Advocate for the PetitioneRs.*** JASWANT SINGH, J.
Defendants/petitioners are in revision against the order dated 31.08.2012(Annexure P-1) passed by the learned Civil Judge(Sr.Divn.).Ludhiana, whereby their application under Order 7 Rule 11 CPC for rejection of plaint has been dismissed.
In brief, facts of the case are that the plaintiffs/respondents filed a suit in representative capacity under Order 1 Rule 8 CPC for declaration of a gift deed dated 1.10.2004 to be null and void which was executed by defendant no.1 Joginder-petitioner no.1 in connivance with Sujjan Singh and Harnam Singh(defendant nos.2 & 3)/petitioner nos.2 & 3 herein in favour of Nirmal Charitable Trust defendant no.4/petitioner no.4.
During the pendency of the said suit, the application under Order 7 Rule 11 CPC(P- 4) was filed on 10.09.2011, whereby it was averred that the suit should have been filed under Section 92 of CPC and as per Section 92 of CPC, the suit CR No.1411 of 2013(O&M) #2# can only be filed with the prior permission of the court and the defect in not obtaining the leave of the Court cannot be cured by grant of subsequent leave to file the same and thus, the plaint is liable to be rejected as the suit itself is not maintainable.
A detailed reply was filed by the respondents/plaintiffs on 08.12.2011, whereby all the averments were denied and it was stated that the present suit was filed in a representative capacity under Order 1 Rule 8 CPC and the learned Predecessor Court had already granted permission to present the suit in representative capacity vide his order dated 5.10.2007.
Thus, prayer was made for dismissal of the application.
After hearing learned Counsel for the parties, learned trial Court vide impugned order dismissed the application and aggrieved against the same, present petition has been filed.
I have heard learned counsel for the petitioners and have gone through the case file very carefully with his able assistance.
Learned Counsel for the petitioners has argued that the learned lower Court has gravely erred by holding that since the plaintiffs/respondents had filed the suit under Order 1 Rule 8 CPC in representative capacity and necessary permission already stood granted by the predecessor of the learned trial Court vide order dated 5.10.2007, thus plaintiffs/respondents are fully competent to file the suit.
It was argued that the learned Court has failed to appreciate the fact that filing of the suit against the trust under Order 1 Rule 8 CPC would not cure the defect in the plaint, especially when Section 92 of CPC specifically provides that in case of any alleged breach of trust created for a public purpose of Charitable or religious nature, two or more persons having an interest in the trust have to CR No.1411 of 2013(O&M) #3# institute a suit under the provisions of Section 92 of CPC and not under provisions of Order 1 Rule 8 CPC.
Thus, prayer was made for setting aside the impugned order and accepting the present petition.
After hearing learned Counsel for the petitioner and perusing the paper book, this Court is of the opinion that present revision petition is devoid of any merit and the same deserves to be dismissed.
This Court is of the opinion that it is still to be determined before the learned trial Court as to whether the present suit falls within the ambit of Section 92 of CPC and that petitioner no.4-trust is a public trust or a private trust.
Section 92 of CPC is attracted only to those cases where a Charitable/Religious Trust is created for a public purpose and in that situation, the provisions of Section 92 CPC have to be followed.
However, when it is still to be determined as to whether the trust is public or private, this Court cannot throw away a suit at this stage when evidence only would lead to a definite conclusion regarding the nature of trust.
Even more so, a permission to contest the suit was already given under Order 1 Rule 8 CPC by the predecessor of the trial court and the learned trial Court vide impugned order had rightly dismissed the application because no technical defect can be found at this stage, when the objections raised involved mixed questions of fact and law.
In view of the above, finding no merit in the present revision petition, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE March 02, 2013 Vinay