1. The challenge in Revision here is to the permission granted to the respondents Dayal Chand and others under S. 92 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for the institution of a suit for declaration relating to the alleged misuse of authority by the petitioners Dr. Ram Parkash as Trustee oft the Trust known as 'Dharamshala Baba Sunder Dass, Pull Telian, Hissar'.
2. A reading of the provisions of S. 92 of the Code would show that two of the essential requirements thereof are one that the person applying for permission to institute the suit must have an interest in the Trust and second, that the Trust must be for a public purpose of a charitable or religious nature.
3. There was mention in the body of the application, filed by the respondents, of the Trust here being of the nature specified in S. 92 of the Code. It was only in the heading thereof that it was described as a public Trust, but that too without there being any indication of the nature thereof.
4. As regards their interest in the Trust, what was stated by the respondents in their application was:--
'That the applicants are persons interested in safeguarding the interest of the Trust as also to secure the proper administration thereof'.
5. It was the contention of Mr. M. L. Sarin, counsel for the petitioners that the permission granted by the Trial Court for the filing of the suit was wholly unwarranted, both on the ground that the respondents had failed to show that the Trust in question was a public Trust and also that they had an interest in the Trust as envisaged by the provisions of S. 92 of the Code.
6. Mr. J. S. Khanna, counsel for the respondents, on the other hand, argued that the question whether the Trust was a Public Trust or that the respondents had the requisite interest in it, were matters to be raised and tried in the suit and that the Court acting under S. 92 of the Code exercised merely an administrative function and its order was thus not open to question in revision under S. 115 of the Code. This contention was founded upon the judgment of the High Court of Delhi in S. S. Bhagat v. N. S. Ahluwalia, AIR 1978 Del 14, where it was held that under S. 92 of the Code the Advocate General does not decide the rights of a person against whom the suit is intended to be filed, as such person would have full opportunity to present his case before the Court in which the suit is filed, but is merely to see whether or not there is a prima facie case that should be allowed to go to Court. This statment of law obviously cannot be read a s a precedent for the point canvassed, rather it spells out, fulfilling prima facie the requirements of S. 92 of the Code as an essential pre-condition for the grant of permission to institute a suit thereunder.
7. An order granting permission to institute a suit without fulfilling the essential requirements of S. 92 of the Code is not rendered immune from challenge in revision, merely on the ground that such an order is an administrative order which does not finally decide the rights of the parties. An order of this type would clearly be covered by Clause (c) of sub-section (1) of S. 115 of the Code read with proviso (a) thereto. It follows, therefore, that revision would lie against an order granting permission under S. 92 of the Code to institute a suit which does not comply with the provisions thereof.
8. In the present case, interference in revision is clarly warranted, there being no material on record to show that the Trust in question was of the type and nature which could atract the provisions of S. 92 of the Code.
9. As regards the respondents being persons interested in the Trust, the words 'interest in the Trust' were interpreted in Farman Ali Khan v. Mohd. Raza Khan, AIR 1950 All 62 (at p. 65) to mean 'some such interest which is affected by mismanagement so that the person is interested in having the affairs of the trust set right by Court '. It would also be pertinent to advert to the judgment of the Privy Council in Vaidyanathan Ayyar v. Swaminatha Ayyar, AIR 1924 PC 221(2) where the statment of Sir John Wallis in Ramachandra Aiayar v. Parameswaran Unni, ILR 42 Mad 360: (AIR 1919 Mad 384) was approved 'that the object was to prevent people interfering by virtue of S. 92 of the Code in the administration of charitable trusts merely in the interest of others and without any real interest of their own'.
10. The interest required by S. 92 of the Code must thus be a real, substantive and existing interest in the particular Trust. Something more than, for example, merely being a resident of the locality or belonging to the same religion. The requirement, of course, is merely to show the existence of such interest prima facie only.
11. This, thus, being the law on the subject, there can be no escape from the conclusion that the respondents failed to show even prima facie what interest, if any, they had in the Trust in question nor that the Trust was of the nature mentioned in S. 92 of the Code. In this situation, it must indeed be held that the grant of permission to the respondents to institute a suit against the petitioner was contrary to law.
12. The impugned order is consequently hereby set aside and this Revision Petition is accepted with costs. Counsel's fee Rs. 300/-.
13. Revision allowed.