Case Note & Summary
The respondents filed a suit under Section 92 of the Code of Civil Procedure, 1908 (CPC) seeking a scheme for the management of a Gurudwara in village Pilkhani, District Ambala. They alleged that the Gurudwara was a public place of worship and that after the death of Tarlok Singh, his son Bhupinder Singh (the appellant) was not managing it properly. A managing committee was formed with the plaintiffs as office bearers. The appellant contended that the Gurudwara was his private property and that the suit was not maintainable without prior leave of the court under Section 92 CPC. The trial court framed a scheme for management by an elected body of villagers. The appellant appealed, arguing that no leave was granted before institution of the suit. The Supreme Court held that grant of leave is a mandatory precondition under Section 92 CPC and cannot be presumed. However, the appellant had participated in the proceedings without raising this objection, despite being aware of the requirement (having successfully raised it in an earlier suit). The court found that the Gurudwara was a public trust based on evidence, including the appellant's admission that his father was Mohtmim and that villagers had donated land. In the peculiar facts and circumstances, the court declined to set aside the proceedings, holding that the defect was waived by the appellant's conduct. The appeal was dismissed, but the judgment was directed not to be treated as a precedent.
Headnote
A) Civil Procedure - Public Charities - Section 92 CPC - Leave of Court - Grant of leave is a mandatory precondition for institution of a suit under Section 92 CPC; without such leave, the suit is not maintainable. However, where the defendant participates in the proceedings without raising the objection and submits to the jurisdiction, the defect may be waived in the interest of justice, especially when the suit concerns a public trust and a scheme has been framed. (Paras 5-10) B) Trusts - Public Trust - Gurudwara - Nature of Property - A Gurudwara managed by a Mohtmim is a public place of worship; the Mohtmim is akin to a Shebait or manager and cannot claim ownership. Donation of land by villagers and free access to public indicate public character. (Paras 2, 9) C) Civil Procedure - Scheme for Management - Section 92 CPC - Where a public trust is mismanaged, the court may frame a scheme for its proper administration, including an elected body of villagers. (Para 9)
Issue of Consideration
Whether a suit under Section 92 CPC is maintainable without prior leave of the court, and whether the defect can be cured by subsequent conduct of the parties.
Final Decision
The Supreme Court dismissed the civil appeal, holding that although leave under Section 92 CPC is mandatory, the appellant's conduct in participating without objection and the public interest in the scheme warranted dismissal. The judgment was directed not to be treated as a precedent.
Law Points
- Section 92 CPC leave is mandatory
- leave cannot be presumed
- waiver by conduct
- public trust
- scheme for management
