Reva Khetrapal, J.@mdashThis is an application filed by the plaintiffs praying for grant of leave in terms of Section 92 of the CPC for proceeding further in the above mentioned civil suit filed by the plaintiffs seeking directions for the administration of Hamdard Dawakhana (Wakf) for appointment of an Administrator thereof and for removal of defendant No.1 from the office of Chief Mutawalli.
2. The plaintiffs, inter alia, pray for the following reliefs:
i. Appoint an Administrator of defendant no.4;
ii. Direct the removal of defendant No.1 as Mutwalli and as the Chief Mutawalli;
iii. By way of permanent injunction restrain defendant No.1 from acting as a Mutawalli and Chief Mutawalli;
iv. Direct defendant No.1 & 3 to render true and correct accounts of the defendant no.4 including the amount spent on properties at Okhla, Manesar and residential property at 13, Rajdoot Marg, New Delhi to this Hon''ble Court.
3. On 18th August, 2004, the plaintiffs made an oral prayer before this Court seeking leave under the provisions of Section 92 of the Code of Civil Procedure, 1908. Notice was issued to the defendants to show cause as to why leave u/s 92 of the CPC be not granted to the plaintiffs to institute the suit on their oral prayer. Notice was accepted by counsel for the defendants, Mr.Shahzad Khan, Advocate, who sought time to file reply. In the meanwhile, the present application has been filed by the plaintiffs by way of abundant precaution.
4. Reply thereto has been filed by the defendants, denying each and every averment made in the application and praying for rejection of the application, inter alia, on the ground that the plaintiffs having described the Hamdard as ''Wakf'', cannot resort to the provisions of the Civil Procedure Code. It is contended that Section 92 of the CPC is general law and the provisions of the Wakf Act are special law and that general provisions should yield to special provisions as laid down by the Hon''ble Supreme Court of India.
5. plaintiffs have filed rejoinder to the aforesaid reply submitting that during the lifetime of late Wakif Mutwalli Hakim Abdul Hameed, all decisions were taken after duly consulting the plaintiff No.1 by the Wakif Mutwalli Sahib who was the final authority, and that thereafter in terms of the Wakf Deed, after the death of Wakif Mutwalli Sahib, any decision in the matter can only be taken by the Majlis-e-Ayan (Board of Mutwallis), a meeting of which, deliberately and intentionally, has not been called by the defendants after the death of the late Wakif Mutwali. It is reiterated that the suit has been filed for the benefit of the public and not for any personal gains or with a view to harass the defendants or for the purpose of any personal vendetta.
6. At the threshold, it may be noticed that it is specifically disclosed in the application that earlier a similar application u/s 92 of the Code of Civil Procedure, being CM(M) No.957/2004, was filed before the District Judge, Delhi by one Nauman Khan, an ex-employee of the Dwakhana but the same was opposed by the defendants in the present case. The plaintiffs herein at that time had filed their reply in the said suit instituted by the aforesaid Nauman Khan before the learned District Judge, and the plaintiffs in their reply had not opposed the grant of leave by the court, and had in fact filed a short affidavit bringing out the activities of the defendants. By order dated 30th July, 2005, however, the application u/s 92 of the CPC was dismissed by Justice S.N. Dhingra, learned District Judge (as His Lordship then was), holding that in view of Section 85 of the Wakf Act, the jurisdiction of the civil court is barred and hence the court had no jurisdiction to entertain the application for grant of leave to institute the suit.
7. In an appeal filed by the plaintiff Nauman Khan, which appeal is pending, the defendants herein have taken a plea that the Hamdard is a ''Wakf''. Interestingly also, the defendants have stated that although an amount of Rupees One Hundred Fifty Crores is available with the Hamdard Wakf, it requires bank facility for loan and may have to mortgage its properties. Copies of the aforesaid proceedings have been annexed by the plaintiffs along with the present application as Annexures P.1 and P.2.
8. Learned Counsel for the parties have been heard at length on the application.
9. In the course of arguments, Shri P.P. Malhotra, learned Additional Solicitor General took me through the pleadings with a view to show that the present suit has been filed by the plaintiffs in the interest of the Wakf and public interest, that there were clear allegations of breach of trust in the plaint, and that the necessity to issue directions for the administration of the Hamdard Wakf was writ large as the Chief Mutwalli, namely, the defendant No.1, after the death of Wakif Mutwalli is buying and selling properties in his own personal interest without consulting anyone else, including the plaintiff who is the Senior Mutwalli, and without even holding meeting of the Majlis-e-Ayan, and in utter violation of the terms and conditions of the Wakf Deed and against the interest of the Wakf. Hence, the Chief Mutwalli is not entitled to be allowed to continue as a Mutwalli. In particular my attention was drawn to paragraph 42 of the plaint and the relevant paragraphs of the Wakf Deed. Paragraph 42 of the plaint reads as follows:
42.That the plaintiff submits:
A. Para 1 of Wakf Deed clearly lays down that the management of the Wakf shall vest in the Board of Mutawallis and at the most there shall be a maximum of five Mutawallis including the Wakif Mutawalli and the Chief Mutawalli.
B. Para 2 of the Wakf Deed indicates and lays down that during the life time of Wakif Mutawalli he shall carry out and/or manage the affairs relating to administration of the Wakf property and conduct of the business and thereafter as per the deed the general superintendence shall vest in the Board of Mutawallis (Majlise-e-yan).
C. It further clarifies even though after the death of the Wakif Mutawalli, the management of the Wakf shall vest in the Mutawallis, the right to appoint Mutawalli or Mutawallis vests only with the Wakif Mutawalli.
D. The Wakf Deed further in clause 4 lays down the conditions and circumstances in which a Mutawalli could be appointed. In the said clause it is made absolutely clear that no person other than the Wakif Mutawalli could appoint a new Mutawalli except in the event of death of one of the Mutawallis appointed by the Wakif Mutawalli. It is also clear as to how and who would be the new Mutawalli or Mutawallis in such an eventuality.
E. The Wakf Deed also clearly provided that the Wakif Mutawalli in his life time had appointed Defendant No.1 as Chief Mutawalli and the Wakif Mutawalli had clearly laid down who would be the next Chief Mutawali.
F. Clause 5 of the Wakf Deed further provided that as far as Mutawalliship is concerned even the Majlis-e-Ayan which is the supreme body for managing affairs of the Wakf shall have no right to alter Mutawalliship.
G. Clause 6 of the Wakf Deed provides that Majlise-e-yan by special Resolution remove or suspend Mutawali or Mutawallis from office and clause 8 of the Deed provided that after Wakif Mutawali ceases to be a Mutawalli general superintendence of the Wakf shall vest in the Majlis called Majlis-e-Ayan. It appears that the said clause was specifically inserted so that no person becomes supreme and attempts to assume all powers unto him to the exclusion of others.
H. The Wakf Deed in clause 9 lays down that the Majlis-e-Ayan should at least meet twice a year. From the Wakf Deed it is clear that the Wakif Mutawalli kept all the powers with himself and wanted that after his death the powers should be exercised by a body known as Majlis-e-Ayan. All the Mutawalis appointed by the Wakif Mutawali were to be ex-officio members of the Majlis-e-Ayan. The Wakif Mutawalli during his life time had constituted a Board of Mutawallis which after the death of Wakif Mutawalli was to function as Majlis-e-Ayan. The said Board of Mutawalis constituted by late Wakif Mutawalli was as under:
1. Hakeem Abdul Hameed Chairman. (Wakif Mutawalli) 2. Mr. Abdul Mueed Vice Chairman. 3. Mr. Hammad Ahmed Senior Mutawalli. 4. Mr. Abdul Majeed. Mutawalli. 5. Mr. Hamid Ahmed. Mutawalli.
10. Before considering the merits of the rival contentions of the parties, it would not be out of place to refer to Sub-section (1) of Section 92, which reads as follows:
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 leave of the Court, 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 State 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 enquiries;
(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) setting a scheme; or
(h) granting such further or other relief as the nature of the case may require.
11. Section 104 provides for appeals against certain orders unless otherwise provided in the body of the Code or by any other law in force. Clause (ffa) of that Section runs as follows:
Section 104. Orders from which appeal lies � (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:
[(ff) an order u/s 35A;]
104(ffa) an order u/s 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be.
12. It would be pertinent to mention that prior to its amendment in 1976, Section 92 of the Code provided that leave of the Advocate General had to be obtained for the institution of a suit of the kind described in that Section and not the leave of the court.
13. A bare perusal of Section 92 of CPC is sufficient to show that the object of the said section is to safeguard the rights of the public and of institutions under trustees. It has been so held in
14. It is trite that when a suit relates to a public trust of a religious or charitable nature and the reliefs claimed fall within clauses (a) to (g) of Sub-Section (1) of Section 92 of CPC and the suit is of a representative character instituted in the interest of the public and not merely for vindication of individual or personal rights of the plaintiff, the suit would be within the purview of Section 92 of the Civil Procedure Code. As was stated by Woodroffe, J., in Budreedas v. Choonilal (1906) 2nd 33 789 at p. 807.
It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead of these officers, two or more persons having an interest in the trust sue with their consent, they sue under a warrant to represent the public as the objects of the trust. It follows from this, that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section.
15. This principle was accepted by the Full Bench of the Madras High Court in
16. The above view was endorsed by another Full Bench of the Madras High Court in
After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in
17. Learned Counsel for the plaintiffs placed reliance on a number of decisions of the Hon''ble Supreme Court and of this Court to substantiate his contention that all the pre-requisites for grant of leave u/s 92 of the CPC were fulfilled in the instant case. It was urged by him that the proper test for holding whether a ''Wakf'' would fall within the purview of Section 92 of CPC is to examine whether the ''Wakf'' had been created substantially for a public purpose. In this context, he relied upon a three Judge Bench decision of the Supreme Court in
It is evident that this section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.
18. In the aforesaid judgment reliance was placed by the Hon''ble Supreme Court on a decision of the Calcutta High Court in
19. Coming to the other cases relied upon by learned senior counsel for the plaintiffs, reliance was placed by him on the case of
20. Learned Counsel for the plaintiff next drew my attention to another decision of the Apex Court in
9. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlabhai it was pointed out at page 517 by Mukherjea, J., as he then was, speaking for the court:
A suit u/s 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that the directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit was got to be brought in conformity with the provision of Section 92, Civil Procedure Code. As was observed by the Privy Council in Abdur Rahim v. Barkat Ali (supra), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, Civil Procedure Code.
In a very recent decision, this Court speaking through one of us (Mathew, J.) in the case of Swami Parmatmanand Saraswati v. Ramji Tripathi has reiterated the same view in paragraph 10 at page 699 wherein it has been further added:
It is, Therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit u/s 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 person or persons in whom they are interested, then the suit would be outside the scope of Section 92.
21. Next, reference was made to the decision of the Hon''ble Supreme Court in R.M. Naryana Chettiar''s case (supra) wherein the court was dealing with the question as to whether, before granting leave to institute a suit u/s 92, the Advocate General, or later the Court, was required to give an opportunity to the proposed defendants to show cause why leave should not be granted. In so doing, reference was made by the court to the following judgments of various High Courts holding that no notice was necessary to be issued to the defendants prior to the granting or refusing of leave u/s 92 of the Code as at that stage it is only the subjective satisfaction of the court that is required:
1.
2.
3.
4.
5.
22. In the last mentioned case, a learned Judge of the Allahabad High Court held that while granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The court has merely to see whether there is a prima-facie case for granting leave to file a suit. The order does not in any way affect the final decision which will be given on merits after the parties have led evidence in the suit. Accordingly, Section 92 of the Code does not contemplate giving of any notice to the proposed defendants before granting leave. A contrary view was, however, taken by the Madras High Court in
23. After going through all the aforesaid judgments rendered by the various High Courts, the Apex Court in Narayan Chettiar''s case (supra) held that before refusing leave to the proposed plaintiffs, the proposed plaintiffs are bound to be heard; and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave. As regards notice to the defendants, the Apex Court opined that although, as a rule of caution, court should normally give notice to the defendants before granting leave under the said Section to institute a suit, the Court is not bound to do so. The conclusions as summed up at pages 225-226 of the Report are as follows:
17...
The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under S. 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the provisions of S. 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of caution, Court should normally give notice to the defendants before granting leave under the said section to institute a suit, the Court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
18. We may mention that although clause (ffa) of S. 104(1) of the Code provides that an appeal shall lie against the refusal of grant of leave, that cannot lead to the conclusion that it is obligatory on the part of the Court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave. Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave.
24. Next, reference was made by Mr.P.P. Malhotra, learned Counsel for the plaintiffs to the decision of the Supreme Court in
7. After noticing various decisions of different courts and the decision in R.M.Narayana Chettiar''s case (supra), the Law Commission recommended that to expect the court to issue notice and then to try the several points of detail before granting leave in the light of the objections put forth by the respective defendants, would mean that there will be a trial before trial and this would not be desirable. The recommendation of the Law Commission was, Therefore, to insert an Explanation below section 92 CPC to the effect that the court may grant leave under this section without issuing notice to any other person , but this does not, of course, mean that the court will grant leave as a matter of course.
In paragraph 9, the Apex Court further observed as under:
9. Although as a rule of caution, court should normally give notice to the defendants before granting leave under the said section to institute a suit, the court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. Grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law or even in the course of suit which may be established that the suit does not fall within the scope of section 92 CPC. In that view of the matter, we do not think, there is any reason for us to interfere with the order made by the High Court.
25. Reliance was also placed upon the judgment of a learned Single Judge of the Kerala High Court in
The statement of the law in the leading legal treatises and the decisions are illuminating and they have our full concurrence. We are of the view that apart from the remedy available u/s 92 of the CPC and the initiation of proceedings under Article 226 of the Constitution of India, the Civil Courts have got ''inherent power'' to initiate action, probe into the matter and set right the abuses by a remedial action in the case of charitable and religious trusts or deities as guardian of such juridical entities. This is a ''reserve power'' vested in Courts to protect the interests of persons, who, by themselves, cannot initiate proceedings and safeguard their interests. We are inclined to take such a view.
26. On the strength of the aforesaid precedents, learned Counsel for the plaintiffs urged that the plaintiffs are entitled to the grant of leave u/s 92 of the Act. It was pointed out that the Wakf Deed dated 28th August, 1948 which was registered with Sunni Majlis-e-Auquf, Delhi under the Delhi Munsif Wakf Act, 1943 and later in the year 1964 with the Delhi Wakf Act, 1954 was created because the founders were desirous of setting apart and assigning a fixed portion of the income derived from the business of Hamdard Dawakhana, which after the creation of the trust became Hamdard Dawakhana Wakf Delhi, for public welfare and charitable purposes, so that the object of advancing the cause of Indian Medicine and benefitting the country with the ancient system of medicine and ensuring that the same was not thwarted by the selfish and unscrupulous conduct of anybody, could be achieved. This was apparent from the objects of the ''Wakf'' which read as under:
a) to establish and run a Research Institute for the purpose of discovering the properties, actions and active principles of herbs and simple medicines;
b) to establish and successfully conduct a Tibbia College in conformity with known standards;
c) to establish and run charitable hospitals and clinics where poor patients are given free treatment according to the principles of indigenous systems of medicines;
d) to establish and run educational, commercial, industrial and cultural institutions or to aid those which are already in existence;
e) to build schools, laboratories, inns, wells, mosques, khanqhus, grave-yards or such other buildings of a public nature as may benefit the community and country or those which have as their objects the perpetuation of the memory of important historical incidents or historic personages or to aid in the repairs, supervision, extension and improvement of those already in existence;
and
f) to publish books, pictures, maps or literature or to aid in publication of the same by the publication of which the community and country are likely to benefit.
27. Learned Counsel for the plaintiff emphasised that the income of the wakf was to be divided into two portions; one-fourth being named as ''Khandani'' income and three-fourth as ''Qaumi'' income. The ''Khandani'' income was to devolve on the founders and their heirs while the ''Qaumi'' income had to be used for charitable purposes and to achieve the aforesaid objects.
28. My attention was also drawn to a suit filed by the founder of the Wakf, Hakim Haji Abdul Hameed Saheb, being Original Suit No.117/72, praying for a declaration declaring that the Hamdard Dawakhana Wakf and its institutions and societies are not ''Wakf'' within the meaning of the Wakf Act 29 of 1954 and Entry No.63 of Notification No.3533/70 dated 12.12.70 as published in the Delhi Gazette part IV dated 31.12.70 is illegal and ultra vires, which is pending adjudication in this Court.
29. It also emerges from the record that the late Wakif Mutwali had desired that the Board of Mutwallis would supervise, monitor and review the foundation of the Wakf. He himself had constituted the Board of Mutwallis appointing the plaintiff No.1 and the defendant No.1 as Mutwallis sometime in 1964. Later, plaintiff No.1 and defendant No.1 were appointed by him as Senior Mutwalli and Chief Mutwalli respectively. The plaintiffs allege that the defendant No.1 as Chief Mutwalli has started frittering away the funds of defendant No.4 Wakf in the following manner:
(a) Instead of paying royalty to Hamdard National Foundation at the agreed rate of 5%, has started neutralizing the said money by making fixed deposits of the royalty money;
(b) at one time fixed deposits alone were more than Rs.150 crores.
(c) Siphoning away funds in the name of the Wakf and in the name of development of properties.
(d) Siphoning away funds in the name of development at Manesar about Rs.55 crores or more.
(e) Siphoning away funds in the name of development of property at Okhla so far Rs.110 crores.
(f) Selling properties of the dawakhana. The following properties of the Hamdard National Foundation have been sold without consent of the plaintiffs (the list is not exhaustive and based on the limited information available with the plaintiffs):
i) Property No.3636, Kara Dina Bg Khan Lal Kuan, Delhi.
ii) Flat No.601, Rishi Apartment, Alakhnanda, Tara Apartment, New Delhi-19.
iii) Flat No.602, Rishi Apartment, Alakhnanda, Tara Apartment, New Delhi-19.
iv) Flat No.603, Rishi Apartment, Alakhnanda, Tara Apartment, New Delhi-19.
v) Flat No.604, Rishi Apartment, Alakhnanda, Tara Apartment, New Delhi-19.
vi) Farm House as Pul Pahaladpur, New Delhi.
vii) One Garage at Lal Kuan, Delhi-6.
(g) Siphoning away funds for buying resident property at Rajdoot Marg and in the name of renovation thereof.
30. It is also the allegation of the plaintiffs that the trust money is being misutilised by the Chief Mutwali and his two sons, inter alia, by construction of a factory at Manesar for the benefit of the defendant No.2 and that the funds of the Wakf have been diverted to the said factory; that the working of the Wakf is not being done in a transparent manner and the Mutwallis are not being given any information in regard to the affairs of the Wakf and particularly its financial affairs; and that the defendant no.1 has inducted his son, namely, the defendant No.3 as a Mutwalli and his appointment is against the provisions of the Wakf Deed which is sacrosanct, and hence, another suit being Suit No.326/2005 has been filed by the plaintiff No.2 praying for a declaration that the defendant No.3 cannot be appointed as Mutwalli of defendant No.4. It is also alleged that though a sum of rupees One hundred fifty crores is lying in fixed deposit as evidenced by a letter written by the Ministry of Finance, Government of India to the Director General, Income (Exemption), Vaishali, Ghaziabad, defendant No.1 has sought to mortgage the properties of the Wakf in order to raise a loan for the purpose of construction of a godown at Okhla without any consultation with the plaintiffs who are Mutwallis and the Majlis-e-Ayan. Finally, it is contended that the Chief Mutwalli has entirely usurped the powers of the Majlis-e-Ayan which is responsible for looking into the interest of the beneficiary of the ''Qaumi'' income.
31. The aforesaid allegations are sought to be countered by Sh.P.N. Lekhi, Senior Advocate, counsel for the defendants No.1 to 4 by the following contentions:
(i) As is borne out by the Wakf Deed running into 22 pages and a perusal of the plaint, the defendant No.4 is a ''Wakf'' within the meaning of the Wakf Act, inasmuch as the income tax authorities have given exemption from payment of any income tax to defendant No.4, and till today the defendant No.4 is not paying any income tax, and the entire income of Defendant No.4 from the business is intended to be utilized for the purpose of charity and charity alone.
(ii) The particulars of breach of trust are not set out in the plaint in utter violation of the provisions of Rule 4 of Order 6 of the Code of Civil Procedure; and thus the allegations regarding breach of trust are the ipse dixit of the plaintiff.
(iii) The said allegations made in the plaint have been categorically denied in the written statement in accordance with the provisions of Order 8 Rules 4 & 5 of the Code of Civil Procedure. The denial is not evasive: it is specific. The plaintiff has not been able to repel the averments made in the written statement.
(iv) The plaintiff is the treasurer and is maintaining the accounts of the ''Wakf'' and holding the purse of the ''Wakf''.
(v) The decision to dispose of the properties of the ''Wakf'' including the disposal of the four flats at Rishi Apartment, Alakhnanda was taken in a meeting of the Majlis-e-Ayan on 21st December, 2001. This is borne out by the minutes of the meeting of the Majlis-e-Ayan, which bears the signatures of the plaintiffs along with the signatures of other members who participated in the meeting. Affidavits in this regard have been filed which are on record. Thus, prima-facie, there is no merit in the allegation of the plaintiffs that the Wakf properties are being sold by the defendants without the consent of the plaintiffs.
(vi) The suit is malafide and sham. The real purpose of filing the suit is that the plaintiff No.1 aspires to be the Chief Mutwalli and the suit is, Therefore, a gloss over his ambitions and an exercise in deceit. The suit, Therefore, deserves to be thrown out at the threshold.
(vii) A Criminal Contempt Petition being CCP No.2/2006 has been filed by the defendant No.1 against the plaintiff on the ground that the plaintiff has sworn a false affidavit in respect of the sale of properties of the ''Wakf''. Section 2(c)(ii) and (iii) of the Contempt of Court Act, 1971 are attracted. The plaintiffs are consequently required to purge themselves of the contempt first before grant of any relief to them.
32. In order to buttress his aforesaid contentions, learned Counsel for the defendants relied upon the following decisions: (i)
33. I have carefully examined all the aforesaid decisions and I am of the view that the reliance placed by counsel for the defendants on the aforesaid decisions is entirely misplaced as the same do not in any manner further the case of the defendants. Hence, it is not proposed to refer in any detail to the aforesaid decisions.
34. It would, however, be apposite to refer to the judgment of the Hon''ble Supreme Court in the case of All India Women''s Conference and Ors. v. Sarla Shah and Ors. (2004) 13 SCC 402, which though not relied upon by the counsel, succinctly sums up the ingredients of Section 92 as follows:
(i) the existence of a public trust;
(ii) allegations of breach of trust; and
(iii) the necessity to issue directions for
administration of the trust.
The Apex Court in the said case held that as the aforesaid ingredients were satisfied, the plaintiffs were entitled to leave to institute the suit, which had been rightly granted by the learned Single Judge, who later on erred in revoking the leave so granted ex-parte.
35. Applying the aforesaid tests laid down by the Apex Court to the present case, I have no hesitation in holding that on the touchstone of the criteria laid down by the Hon''ble Supreme Court, the plaintiffs are entitled to the grant of leave u/s 92 of the Code of Civil Procedure. I say so for the following reasons:
(i) From the averments made in the plaint and the documents placed on record, it is amply clear that the suit relates to a trust created for a charitable purpose as is evident from the objects set out in the Wakf Deed and reproduced hereinabove.
(ii) plaintiff No.1 is the Senior Mutwalli and plaintiff No.2 is also a Mutwalli of the defendant No.4 Wakf which comprises of five Mutwallis including the defendants No.1 to 3.
(iii) The plaintiffs have knocked at the doors of the Court keeping in view the objects for which the trust was set up by the late Wakif Mutwalli, father of the plaintiff No.1 and grand-father of plaintiff No.2.
(iv) In the plaint, there are clear-cut allegations of breach of trust by the trustees, viz. by the defendants No.1 to 3 and of buying and selling properties by the said defendants in their own personal interest without even consulting the Majlis-e-Ayan (the Board of Mutwallis).
(v) Defendants'' reliance on the minutes of the meeting of the Majlis-e-Ayan, where a resolution was allegedly passed for the sale of the properties of the Wakf, cannot be a ground for refusal of leave as both plaintiffs have vehemently denied their participation in the alleged meeting of the Majlis-e-Ayan and have alleged that the minutes are fabricated ones. In fact one of the allegations in the plaint is that after the death of the Wakif Mutwalli, no meeting of the Majlis-e-Ayan has ever been held and what is prayed for is the appointment of an administrator on the ground that the Chief Mutwalli has usurped the power of the Majlis-e-Ayan. Directions are also sought from the court for rendition of true and correct accounts of the Wakf Dawakhana including the amount spent by the defendant No.1 to 3 on properties acquired by them at Okhla, Manesar and Rajdoot Marg, New Delhi with the funds of the trust.
(vi) Although it was vigorously contended by learned Counsel for the defendants that the suit is a gloss over the ambition of plaintiff No.1, who aspires to achieve the status of Chief Mutwalli from Senior Mutwalli, there prima-facie appears to be no merit in the said contention.
(vii) The plaintiffs have not claimed any of the reliefs which cannot be sought u/s 92 of the Code.
(viii) Reading of the entire plaint gives a clear indication that the plaintiffs have not come to the court for vindication of any personal right or interest.
36. In view of the aforesaid, in my view, it is a fit case for grant of leave to the plaintiffs u/s 92 Code of Civil Procedure.
37. Before parting with the case, however, it will be necessary for me to record that although a number of submissions pertaining to the merits of the case were made in the course of hearing of the present application, it is deemed expedient to refrain from recording any findings thereon so as to avoid prejudice to either of the parties. It is also clarified that no observations made in the present judgment shall in the future affect the merits of the case or have a bearing thereon in any manner whatsoever. It is further clarified that since in the course of hearing I was informed that the suit filed by the late Wakif Mutwalli, being Suit No.117/72, for a declaration that the defendant No.4 is not a ''Wakf'' within the meaning of the Wakf Act is pending as also an appeal from the order of the District Judge refusing to grant leave u/s 92 of Code of Civil Procedure, it shall be open to the defendants to seek revocation of the leave granted by this order in the event of a decision being rendered in their favor in the aforesaid suit and or in the appeal pending before the learned Division Bench.
38. To conclude, the application is allowed and the plaintiff is granted leave to institute the suit. There will be no order as to costs.
