Scope of Section 92 CPC

In order to answer the maintainability of the suit under Section 92 of CPC it is necessary to look into the statutory provision and the law on the point. Section 92 of the Code deals with Public Charities.

To attract the operation of Section 92, the suit must be of a certain character and pray for certain reliefs, in the first place, the suit should relate to a trust, created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the reliefs claimed must be one or other of the reliefs specified in the section and, lastly, the suit must be one brought in a representative capacity, in the interests of the public or of the trust, itself and not for vindicating the private rights of the plaintiff. If these conditions are present, the suit can be brought in conformity with the Section 92 of the Civil Procedure Code.

 “A suit under Section 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 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 has 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 Vs. Md. Barkat Ali(1) 55 lad APP 96 PC, 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 the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the defendant who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the Court, but when the Courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiff, that any direction of the Court was necessary for proper administration of the trust, the very foundation of a suit under Section 92, Civil Procedure Code, became wanting and the plaintiff had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiff. It has been argued by the learned Counsel for the respondents that even if the plaintiff failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied. In these circumstances, there was nothing wrong for the Court to give the plaintiffs a lesser relief than what they actually claimed. ‘The reply to this is, that in a suit framed under Section 92 of the Civil Procedure Code, the only reliefs which the plaintiff can Claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it: but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92, Civil Procedure Code. The finding as to the existence of a public trust in such circumstance would be no more than an obiter dictum and cannot constitute the final decision in the suit The result is that in our opinion the decision of the High Court should stand but the decree and the concluding portion, of the judgment passed by the Trial Court and affirmed by the High Court on appeal shall direct a dismissal of the plaintiffs suit merely without its being made subject to any declaration as to the character of the properties. To this extent the appeal is allowed and the final decree modified”. [Pragdasji Vs. Ishwarlalbhai, AIR 1952 SC 143]

A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. 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 under Section 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 interested, then the suit would be outside the scope of Section 92 (see Shanmukham Vs. Govinda, AIR 1938 Mad 92; Tirumalai Devasthanams Vs. Krishnayya, AIR 1943 Mad 466 (FB), Sugra Bibi Vs. Hazi Kummu Mia, (1969) 3 SCR 83 = (AIR 1969 SC 884) & Mulla, Civil Procedure Code,. (13th ed) (Vol 1 p 400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the Section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S.92.

It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B. Bagga Singh Vs. Gurnam Singh, AIR 1972 Raj 263; Sohan Singh Vs. Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna Vs. Lachhmi Narain, AIR 1948 Oudh 203). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Sec. 92.” [Swami Parmatmanand Saraswathi and Another Vs. Ramji Tripatiii and Another, AIR 1974 SC 2141]

“The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. It is for that reason that explanation V1 to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from re-agitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code.”[R. Venugopala Naidu and Others Vs. Venkarayulu Naidu Charities and Others, AIR 1990 SC 444]

“Merely because their objections or views did not find acceptance by the majority that cannot be a ground to lay a suit under Section 92 CPC questioning legitimate decisions taken by the majority. The Court does not deal with the administration of trusts. Only if the pre-conditions are satisfied then only leave can be granted as provided in Section 92. There must be art element of dishonest intention and lack of probity. When an action is taken bona fide though there may be mistaken action that would not amount to breach of trust.

To find out whether the suit was for vindicating public rights there is a necessity to go beyond the relief and to focus on the purpose for which the suit was filed. It is the object and purpose and not the relief which is material. A co-trustee is not remediless if the leave is not granted under Section 92.”

The object of Section 92 CPC is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. Public trusts for the charitable and religious purpose are run for the benefit of the public. No individual should take benefit from them. If the persons in the management of the trusts are subjected to a multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of public trusts. Thus, there is a need for scrutiny.

In the suit against public trust, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons an action under the provision does not lie. As noted in Swami Parmatmanand’s case (AIR 1974 SC 214) a suit under Section 92 CPC is a suit of special nature, which presupposes the existence of public trust of religious or charitable character. When the plaintiffs do not sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of arty other persons or persons in whom they are interested, Section 92 has no application.

In Swamy Parmatmanand’s case (AIR 1974 SC 214) it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But if after evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the Section then suit purporting to be brought under Section 92 must be dismissed.”

To put it differently, it is not every suit claiming reliefs specified in Section 92 that can be brought under the Section, but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of the public for the vindication of public rights. As a decisive factor, the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for the protection of the interests of the public trusts.” [Vidyodaya Trust V. Mohan Prasad R, (2008) 4 SCC 1151]

A suit under Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and Charities. It presupposes the existence of public trust of a religious or charitable character. 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. A suit framed under Section 92 of the Civil Procedure Code, the only reliefs which the plaintiff can Claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties do not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section, if the plaintiff is held entitled to it. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. A suit under Section 92 of the Code is thus, a representative suit and as such binds not only the parties named in the suit title but all those who are interested in the trust. In deciding, whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. It is only the allegations in the plaint that should be looked into in the first instance, to see, whether the suit falls within the ambit of Section 92. If on analysis of the averments contained in the plaint, it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons, an action under the provision does not lie. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason, but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed. Public trusts for charitable and religious purpose are run for the benefit of the public. No Individual should take benefit from them. It is not every suit claiming reliefs specified in Section 92 that can be brought under the Section; but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of’ public rights. As a decisive factor, the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92, by persons whose activities were not for protection of the interests of the public trusts. First and the foremost requirement for an application under Section 92 is the plaintiffs should bring the suit to vindicate the right of the public. In the suit, if they are seeking a declaration of their individual or personal rights or individual or personal rights of any other person or persons in whom they are interested, and then the suit would be outside the scope of Section 92 of the Code. In order to find out, whether the plaintiff in such a suit is vindicating the right of the public or his personal right, what is to be seen is, allegations in the plaint. In the first instance, if the allegations in the plaint do not indicate that the plaintiffs have approached the Court to vindicate the rights of the public, on the analogy of Order 7 Rule 11 of Code of Civil Procedure, the plaint can be rejected on the ground that the plaint does not disclose a cause of action. However, if it is not rejected and enquiry is conducted, evidence is taken and thereafter, it is found that breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason, but is made only with a view to bring the suit under the Section, then the suit purported to be brought under Section 92, must be dismissed. Therefore, even if all the other ingredients of a suit under Section 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. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right, does not fall under the Section. [Christopher Karkada vs Church of South India [2012 (1) KCCR 503: ILR 2012 (1) Kar 725 (DB)]