2/24/24, 2:48 AM 2003 C L C 1156

2003 C L C 1156

[Karachi]

Before Shabbir Ahmed, J

BEGUM HAFIZUNNISA QURESHI and others---Plaintiffs

Versus

Shaikh MUHAMMAD HUSSAIN and others---Defendants

Suit No.333 of 1992, decided on 31st December, 2001.

(a) Civil Procedure Code (V of 1908)---

----O. VII. R.11---incompetent suit---Duty of parties of draw Court's attention to same

by way of application to reject plaint---Principles.

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 application.
The principles involved are two-fold, 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.

One of the objects of exercise of powers in terms of O.VII, R.11 is that an incompetent
suit should be laid to rest at the earliest moment, so that no further time is wasted on
the matter, which is bound to collapse being not permitted by law.

(b) Civil Procedure Code (V of 1908)---

----S. 92---Trusts Act (II of 1882), S.6---Private and public trust-- Distinction---
Beneficiaries in private trust are specific individuals i.e. ascertained persons or capable
of being ascertained---Beneficiaries in public trust are general public or a class thereof
incapable of ascertainment.

Deok Nandan v. Murlidhar AIR 1957 SC 133; Haji Muhammad Nabi Shirazi and
others v. Province of Bengal and others AIR 1942 Cal. 343 and Umesh Chandra Banik
and others v. Rai Shahed Abinash Chandra Bhattacherjee and others PLD 1968 Dacca
124 fol.

(c) Civil Procedure Code (V of 1908)---

----S. 92---Trusts Act (II of 1882), S.6---Private or public trust---Test to determine its
nature---One has to refer to the object of trust contained in deed of trust.

(d) Civil Procedure Code (V of 1908)---

----S. 92---Proceedings involving trust or its property---Permission of Advocate-

General in terms of S.92, C.P.C.---Mandatory-- Absence of such permission would
render suit ab initio incompetent.

Pramatha Nath Mullick v. Pradhyumma Kumar Mullick and another AIR 1925 PC 139;
Janaki Bai Animal v. Sri Triuchitrambala Vinayakar of Melman AIR 1935 Mad. 825;
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Raje Anandrao v. Shamrao AIR 1961 SC 1206: Mehboob Elahi v. K.K. Idrees PLD
1955 Lah. 242; Charan Singh and another v. Darshan Singh and others AIR 1975 SC
371 and Mulvi Muhammad Ishaq and another v. The P.O.F. Cooperative House
Building Society, Wah Cantt 1989 SCMR 1052 ref.

(e) Civil Procedure Code (V of 1908)---

----S. 92---Suits for enforcement of private rights---Not governed by S.92, C.P.C.---

Private rights beyond scope of S.92, C.P.C. illustrated.

(f) Civil Procedure Code (V of 1908)---

----S. 92---Suit relating to public charities---Maintainability---Whether suit or

proceedings fall under S.92, C.P.C., depends not upon character in which plaintiff sues,
but upon nature of relief sought---Substance and not the form of suit must be looked at
for such purpose---Contents of plaint would determine maintainability of suit and
attraction of bar contained in S.92, C.P.C.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD
1989 SC 283 fol.

(g) Limitation---

----Question of---Mixed question of law and fact---Could not be resolved without

evidence.

(h) Civil Procedure Code (V of 1908)---

----S. 11 & O. VII, R.11---Second application for rejection of plaint-- Principle of res
judicata---Applicability---First application not disposed of on merits, but dismissed for
non-prosecution---Such dismissal could not be a bar for second application on ground
of constructive res judicata.

Tariq Mahmood Chaudhry, Kamboh v. Najam-ud-Din 1999 SCMR 2396 ref.

(i) Civil Procedure Code (V of 1908)---

----S. 92---Constitution of Pakistan (1973), Art. 185(3) & 199---Suit relating to public
trust---Maintainability---Contention that matter remained subject-matter of
Constitutional petition and petition for leave to appeal before Supreme Court, wherein
observations had been made that controversy raised being subject-matter of suit should
be decided therein, thus, suit should proceed on merits---Validity---Observations for
decisions on points raised in Constitutional petition would not make suit maintainable,
if same was otherwise not maintainable.

(j) Civil Procedure Code (V of 1908)---

----O. VII, R.11(d)---Rejection of plaint---Recording of evidence-- Necessity---Where

suit was barred for want of mandatory requirement of law, then exercise in recording
evidence would be an exercise in futility.

(k) Civil Procedure Code (V of 1908)---

----S. 92---Maintainability of suit in terms of S.92, C.P.C. must be examined to avoid

further delay and provide an opportunity to plaintiff to retrace and if permissible in law,
to file a properly constituted suit.

(l) Estoppel---
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----No estoppel against statute.

(m) Administration of justice---

---- If it is found by Court that a party, which law and is openly a stranger and comes to
matter, then he cannot be allowed to lay following requisite course.

(n) Civil Procedure Code (V of 1908)---

----S. 92---Suit relating to public charities---Essential conditions to be fulfilled stated.

In order to file a suit under section 92, C.P.C., these conditions must be fulfilled: (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
personal rights of plaintiff; (iii) the relief claimed must be one of the reliefs enumerated
in section 92; (iv) the suit filed without consent/permission of Advocate-General is not
competent, plaint is to be rejected/suit is to be dismissed.

Fakir Shah and others v. Mehtab. Shah Pir Bukhari Masjid Committee and others PLD
1989 SC 283; Kathiawar Cooperative Housing Society Limited through General
Secretary v. Macca Masjid Trust through Secretary and 9 others 2000 CLC 1182 and
Mian Jan v. Fakir Muhammad PLD 1960 Kar. 420 fol.

M. Aziz Malik for Plaintiffs.

Khalid Javed Khan for Defendants.

Date of hearing: 20th December, 2001.

ORDER

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.
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(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
Olla, (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, earth quakes 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.
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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.
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8. To ascertain whether "Islamic Education Trust" is a private or public Trust, one has
to refer the object of the Trust, contained in the deed itself, copy thereof has been filed
with plaint, Annexure "A".

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 hesitation 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 trust7property 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) to obtain 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
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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, ca5'es of (1) Pramatha Nath Mullick v. Pradhyumma Kumar
Mullick and another AIR! 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 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 they 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 the 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:--
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"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:--
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(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 oil 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 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 costs.

S.A.K./B-71/K Plaint rejected.

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