1. This appeal is under Clause 15 of Letters Patent and it is at the instance of Defendants/Respondents against an order dismissing the application filed by the defendants for revocation of leave granted under Section 92 of the Civil P. C. as well as for rejecting the plaint and alternatively for dismissal of the Suit No. 26 of 1981.
2. The above suit was filed by the plain-tiffs on 19th Jan., 1982 in the Original Side of this Court stating inter alia that St. Thomas School was a public charitable trust and the defendants were Trustees of the said trust. It was alleged that the defendants were guilty of breach of trust. The Board of Governors of the school was reconstituted long before in accordance with the provisions of Section 2 of the St. Thomas School Act 1923 and the term of the Board already expired. It has been stated further that both the plaintiffs are worshipping and subscribing members of the vestry St. Paul's Cathedral, Calcutta and as such under the provisions of the said Act they have right to nominate Governors of the Board of Governors of the said school. Moreover the petitioner No. 2 is also a Teacher in Calcutta Girls High School which is an Anglo Indian School and as such they are interested in the Trust. As Board of Governors were not properly constituted and the trust property arc not properly managed by the Trust i. e. Board of Governors of the said school and there has been a breach of the terms and conditions of the Trust, the instant suit has been brought praying for leave under Section 92 of the Civil P. C. and also for other reliefs as provided under the said section, to institute the suit as well as for removal of the Trustees, appointing new trustees, for directing the trustees who have been removed to deliver possession of the trust property and also for settling a scheme for administration of the Trust properties. The leave was granted ex parte under. Section 92 of the Civil P. C. on hearing the plaintiff on 19th Jan.. 1982. The defendants/respondents filed an application for revocation of the leave granted and for rejection of plaint subsequently.
3. This application was dismissed by C. K. Banerjee, J. on the 7th Apr., 1982 holding inter alia that though it had not been specifically pleaded, which immovable properties were situated within the Original Jurisdiction of this Court was yet it could not be stated that there no pleading at all so as to non-suit the plaintiffs. It was held that the suit was maintainable under Section 92 of the Civil P. C. It was also held that the suit was instituted by the two persons claiming to have interest in the trust. The question whether these plaintiffs have any such interest or not cannot be gone into in this application and the same has to be decided in the suit. It has been further held that the learned Judge has taken a prima facie, view, of the matter solely for the purpose of the application and the contention raised in the application would be properly gone into on proper materials at the time of hearing the suit. The application for revocation of the leave granted on 19th Jan., 1982, was rejected.
4. Against the aforesaid judgment and order the instant appeal has been preferred. Mr Somnath Chatterjee with Mr. P. K. Chatterjee, learned Advocates appearing on behalf of the appellants have contended in the first place that the leave that was granted under Section 92 of the Civil P. C, should be revoked inasmuch as St. Thomas School is a statutory body constituted by St. Thomas School Act 1923. It is not a public charitable trust at all. It has been further submitted by Mr. Chatterjee that the Board of Governors was lastly reconstituted on 7th Nov., 1981 and the same was duly gazetted by the State Government. Under Section 4 of the said Act the life of the Board of Governors is for a period of 3 years from the date of publication of the names in the official gazette. It has been submitted that the life of the Board of Governors is subsisting. It has next been submitted that the instant suit at the instance of the two plaintiffs in their individual capacity cannot be treated as a suit within the meaning of Section 92 of the Civil P. C. inasmuch as there is nothing to show that the plaintiffs have got any interest in the matter of administration of the St. Thomas School. Even if it is taken for argument's sake that there is a constructive Trust which is, of course, not the case here the plaintiffs have to prove that they have an interest in the said trust It is further submitted that the impugned order made by the learned Judge is not ia accordance with law, inasmuch as the learned Judge has found that whether the plaintiffs claiming interest in the trust have in fact interest or not cannot be gone into in the application for revocation of leave but the same is to be decided in the suit. It has also been submitted that the purposes of the said School being to provide sound education with religious instructions in accordance with the principles of the Church of England for the children of Europeans and Anglo Indians as provided in Section 11 of the said Act, the plaintiffs being neither European nor Anglo Indian have manifestly no interest in the trust: even if it is assumed that there has been a constructive trust in view of the provisions of Section 11 of the said Act.
5. It has also been submitted that the major part of the property is situated at Diamond Harbour Board which is outside the limits of the original jurisdiction of this Court and no leave under Clause 12 of the Letters Patent having been obtained by the plaintiffs, the suit is liable to be dismissed.
6. Mr. John, learned Advocate appearing on behalf of the respondents submitted in the first place that after coining into force of the Constitution Letters Patent cannot have any application and as such this appeal under Clause 15 of the Letters Patent is not maintainable. It has been further submitted by Mr. John that the instant appeal is also not maintainable as in view of the provisions of Section 104 read with Order 43, Rule 1 of the Civil P. C.
7. It is next submitted by Mr. John that in view of the provisions of Section 11 of the St. Thomas School Act it was rightly held by the learned Judge that at least there was a constructive trust for public charitable purposes and the petitioners being worshiping and subscribing members of the vestry of St. Paul's Cathedral, Calcutta they are interested in the trust and the leave granted under Section 92 of the Civil P. C. is quite in accordance with the law. The application for revocation of the leave granted ex parte has been rightly rejected.
8. The first question that requires to be decided is as to whether the instant appeal under Clause 15 of the Letters Patent is maintainable or not. This question cropped up in the case of Chunilal Basu v. The Hon'ble the Chief Justice. High Court at Calcutta : AIR1972Cal470 and it has been held that the Letters Patent of 1865 is not ultra vires the Government of India Act 1935 or of the Indian Independence Act J947 and as such this Letters Patent is still in force being the law in force immediately before the commencement of the Constitution within the meaning of Article 372 read with Article 225 of the Constitution of India. In this case Mr. John, learned Advocate also appeared for the petitioners. This decision was followed in a later case reported in : AIR1977Cal239 , Sukla Choudhury v. Miss Manjolyn Tweedie. It has been ob-served in AIR 1956 Andh Pra 161 (FB) In re : Putta Ranganayakulu, that Article 372 of the Constitution saves laws in force in the territory of India, notwithstanding the repeal of the Government of India Act. A combined reading of Article 225 and Article 372 of the Constitution indicates that the powers of the High Court conferred on it by the Acts repealed or otherwise can be exercised after the Constitution and the rule already made by the High Court before theConstitution in exercise of those powers are also continued after the Constitution. Such powers or the Rules made thereunder wi!l however be subject to the laws made by a competent legislature or authority. So this contention is not sustainable and the instant appeal under Clause 15 of the Letters Patent is maintainable.
9. It has been tried to be contended by Mr. John, the learned Advocate for the respondents that the provisions of Clause 15 of Letters Patent being contrary to the provisions of Section 104 read with Order 43, Rule 1 of the Civil P. C., which do not provide for an appeal against the impugned order rejecting the application for revocation of leave granted ex parte, the instant appeal is not maintainable. This submission is not sustainable as the appeal provided under Clause 15 of the Letters Patent is saved by Section 104. In (1899) ILR 26 Cal. 361 it has been observed that Section 104 of the Civil P. C. provides that appeal shall lie from order mentioned therein save as otherwise expressly provided in the body of this Code or by any law for the lime being in force and from no other orders. Appeals from decision of a single Judge to a Bench are provided in Clause 15 of the Letters Patent. They are not barred by Section 104 of the Civil P. C.
10. It has also been held in (1916) 23 Cat LJ 443 at pp. 449-50 : (AIR 1916 Cal 361 at p. 365), Mathura Sundari Dassi v. Haran Chandra Saha that the effect of Section 104 of the Civil P. C. is not to take away a right of appeal given by Clause 15 of the Letters Patent, but to create a right of appeal in case even where Clause 15 is not applicable. The Supreme Court also observed in the case of Shah Babulal Khimji v. Jayaben D. Kania : [1982]1SCR187 that a combined reading of the provisions of Sections 4, 5, 104 and read with Order 49, Rule 3 of C. P. C. lead to the irresistible conclusion that Section 104 read with Order 43, Rule 1 clearly applies to the proceedings before the trial Judge of, the High Court. There is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43, Rule 1 of the Code.
11. As regards the next contention that there is no public charitable trust in respect of the St. Thomas School which is expressly governed by the said St. Thomas School Act 1923. It was tried to be contended on behalf of the respondents by referring to Section 11 of the said Act that all the property vested in the Governors by or under this Act should be deemed to be held in Trust, thereby meaning constructive charitable trust of a public nature. This contention, in out opinion, is totally devoid of any merit in view of the fact that Section 11 of the said Act does not at all either expressly or impliedly purport to create a charitable trust of a public nature. St. Thomas School and its property have to be administered in accordance with the provisions of St. Thomas School Act 1923 and if there is any breach of the provision of the Act then the remedy is to be sought under the said Act. The mode of constitution of the Board of Governors had been specifically laid down in Section 2 of the said Act. In these circumstances the contention that the St Thomas School is a public charitable trust cannot be sustained. Hence the instant suit filed under Section 92 of the Civil P. C. with the leave of the Court granted under the said section is not competent and the ex parte leave that was granted is liable to be revoked and withdrawn. The findings of the learned Judge that the question whether there is actually a public charitable trust and the plaintiffs have got any interest in the trust would be considered at the time of hearing in this suit and not before that is, in our opinion, not sustain-able in view of the fact that the leave under Section 92 of the Civil P. C. was granted ex parte without hearing the other side. On getting notice of the suit the instant application has been filed for revocation of leave by the defendants. As such this application requires to be decided as has been held in : AIR1952Cal82 , Parasram Harnandri v. Chitandas. I have already held that the St. Thomas School and its properties do not constitute a public charitable trust at all but they are governed by the provisions of the St. Thomas' School Act, 1923 (Bengal Act XII of 1923). Moreover the plaintiffs have failed to prove that they have any interest in such trust which is the basic requirement to enable the plaintiffs respondents to make an application for leave under Section 92 of the Civil P. C. Furthermore this application for leave to sue was made by the plaintiffs in their individual capacities and not in a representative capacity on behalf of persons interested in the trust. The ex parte leave that was granted on 19th Jan., 1982 are liable to be revoked and withdrawn and the suit is liable to be dismissed.
12. In the premises aforesaid the appeal is allowed and the ex parte leave granted on 19th Jan., 1982 is rejected and revoked. The suit is also dismissed.
There will be no order as to costs in the facts and circumstances of the case.