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Bakshi Lochan Singh and ors. Vs. Jathedar Santokh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal (O.S.) No. 2 of 1971
Judge
Reported inAIR1971Delhi277; 1971RLR33
ActsCode of Civil Procedure (CPC), 1908 - Sections 92 and 93 - Order 6, Rule 4 - Order 14, Rule 1; Delhi High Court (Amendment) Act, 1966 - Sections 5(2); Punjab Courts Act - Sections 24
AppellantBakshi Lochan Singh and ors.
RespondentJathedar Santokh Singh and ors.
Appellant Advocate G.S. Vohra, Adv
Respondent Advocate Gurcharan Singh, Adv.
Cases ReferredFazlehussein Haiderbhoy Buxamusa v. Yusufally Adamji
Excerpt:
.....being in force and that can be done only by saying that for purposes of section 92 of the code of civil procedure, the court of the district judge delhi, will be the principal civil court of original jurisdiction in every suit the value of which does not exceed fifty thousand rupees but in other suits the value of which exceeds fifty thousand rupees, delhi high court will be the principal civil court of original jurisdiction. ; (ii) civil procedure code (5 of 1908) - order 6 rule 4--plea of fraud by defendant--particulars of fraud not given--plea disallowed. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born..........disposed or without recording any evidence.2. the suit was filed under section 92 of the code of civil procedure by jathedar santosh singh and four others against s. balwant singh and s. mehtab singh initially. it was prayed that this court may declare that the plaintiffs were competent to make an immediate donation of rs.2,50,000/- towards the establishment of guru nanak eye hospital in delhi with the aim to evolve it into a full-fledged institute of opthalmology and to repeat and augment such donations as occasion arises and the finance of the gurdwara prabandhak committee permit. the plaintiffs alleged that they are the members and office bearers of the gurudwara prabandhak committee, sis ganj. chandni chowk, delhi, which is a religious and charitable institution registered under.....
Judgment:

S.N. Andley, J.

1. The main complaint of the appellant in this case is that the learned Single Judge did not frame any issues in the case and although contentions of fact were raised in the written statement, the suit was disposed or without recording any evidence.

2. The suit was filed under Section 92 of the Code of Civil Procedure by Jathedar Santosh Singh and four others against S. Balwant Singh and S. Mehtab Singh initially. It was prayed that this Court may declare that the plaintiffs were competent to make an immediate donation of Rs.2,50,000/- towards the establishment of Guru Nanak Eye Hospital in Delhi with the aim to evolve it into a full-fledged institute of opthalmology and to repeat and augment such donations as occasion arises and the finance of the Gurdwara Prabandhak Committee permit. The plaintiffs alleged that they are the members and office bearers of the Gurudwara Prabandhak Committee, Sis Ganj. Chandni Chowk, Delhi, which is a religious and charitable institution registered under the Societies Registration Act, 1860 and this Society manages and controls all historical Gurdwaras of Delhi and was running numerous religious and chargeable institutions, colleges, dispensaries etc. It was alleged that written consent of the Collector of Delhi to institute this suit was granted on September 22, 1970 to the plaintiffs who have filed the suit not only for themselves but also on behalf of the Gurdwara Prabandhak Committee as represented by its Secretary and President. The activities of the Gurdwara Prabandhak Committee are enumerated in the plaint where it is also stated that the idea of establishing a Guru Nanak Eye Hospital in Delhi was mooted with the aim to evolve it into a full-fledged institute of ophthalmology provided the Government was prepared to build the hospital and to run it; that the Lieutenant Governor of Delhi assured full Government support; that the Gurdwara Prabandhak Committee should make substantial contribution keeping in view the financial position and should to start with contribute Rs.2,50,000/- for the purpose and invite contributions from the Sikh Public; that for this purpose legal opinion was taken as to whether the Gurdwara Prabandhak Committee could under its bye-laws lawfully make such contributions and upon receipt of the opinion it was decided to seek appropriate directions from a competent Civil Court under Section 92 of the Code of Civil Procedure. The plaint recited the opening of free dispensaries. It further stated that during the financial year 1970 the income of the Gurdwara Prabandhak Committee was over Rs.45,50,000/- and that with these funds at its disposal it had every right to donate funds to an institute of ophthalmology without offending its bye-laws particularly when this donation was to be made in the scared name of the founder of Sikhism and in commemoration of is 50t birthday. It was averred in the Gurdwara Prabandhak Committed was unanimously in favor of such a donation and that the initial donation of Rs.2,50,000/- was to be repeated as and when its resources allowed. It was for these reasons that the suit was filed for the approval of the Court after obtaining the necessary sanction under Section 92 of the Code of Civil Procedure.

3. The plaint bore a fixed courtfee of Rs.19.50 under Art. 17 (iv) of the Second Schedule to the Court-fees Act and the value of the suit for purposes of jurisdiction was fixed at Rs.2,50,000/- which was the amount in respect of which sanction of the Court was prayed for.

4. Along with the suit, an application was filed under Order 1, Rule 8, of the Code of Civil Procedure in pursuance of which notices were issued and the four appellants came to defend the suit.

5. In the written statement filed by the appellants it was denied that this Court has jurisdiction to entertain the suit. It was further denied that the suit had been filed with the requisite permission under Section 92 of the Code of Civil Procedure and it was averred that all the facts were not disclosed to the authority concerned whose consent to file the suit had been obtained fraudulently. It was further averred that the Gudwara Prabandhak Committee had served connection with the Shiromani Gudwara Prabandhak Committee about 10 years ago and the Gudwara Prabandhak Committee had not followed its bye-laws inasmuch as the consent of the Shiromani Gurdwara Prabandhak Committee had not been obtained for expenses beyond Rs.2,000/- incurred by the Gurdwara Prabandhak Committee. For various reasons set out in the written statement the valid constitution of the Gurudwara Prabandhak Committee was denied. The written statement further contained a bare denial of the factum and validity of the consent of the Collector as alleged in the plaint. Various instances of unauthorised expenses by the Gurdwara Prabandhak Committee have been cited in the written statements making allegations against the plaintiffs but in connection with the opening of the Eye Hospital it was stated:-

'The answering defendants are whole-heartedly with the scheme mentioned and would also contribute their mite in a reverential spirit, but they can't allow the present G.P.C. to take personal advantages, to which they are prone, and against which the said Advocate is not prepared to give any assurances.'

It is clear from the above quoted plea that the appellants are not against the scheme nor do they aver that the proposed donation of RS.2,50,000/- was not justified.

6. The respondents filed a replication reiterating the statements made in the plaint and controverting the allegations of unauthorised expenditure and improper constitution of the Gurdwara Prabandhak Committee pleaded in the written statement.

7. The learned Single Judge who dealt with the suit did not frame any Issues because he seems to have heard arguments on the contentions which were raised on behalf of the appellants. He held that this Court had jurisdiction to entertain the suit in view of its value being Rs.2,50,000/- that no exception could be taken to the functioning of the present Gurdwara Prabandhak Committee pending the disposal of R.F.A. No. 110 of 1967 pending in this Court in which an order had been made by one of us (Tatachari J.) on May 8,1967, upon consent to the effect that both the parties to the appeal had undertaken not to elect fresh committee during the pendency of the appeal; that no details of fraud having been given by the appellants in obtaining the consent of the Collector the plea was not open to them; that the Court was not called upon in this suit to decide the allegations to squandering by the respondents as the only direction that was sought for was for the payment of RS.2,50,000 for the opening of the Guru Nanak Eye Hospital which was one of the objects under the bye-laws of the Gurudwara Prabandhak Committee. The learned Judge was of the view that there was an admission by the appellants with regard to the desirability of making the donation and thereforee, a direction for making that donation could be given under Order 12, Rule 6 of the Code of Civil Procedure on that admission. In the result, the learned Judge decreed the suit and declared that the respondents were competent to make the donation of Rs.2,50,000/- towards the establishment of Guru Nanak Eye Hospital in Delhi and to make further donations to the said institution an occasion arose provided the finances of the Gurdwara Prabandhak Committee so permitted. The learned Judge directed that such contributions should be made through a cross-cheque drawn in payee's account.

8. We do not find any substances in the complaint of the appellants that Issues were not framed in the suit. The object of framing Issues in a suit is to determine the rival contentions of the parties so that the suit may proceed with respect to those contentions. The appellants have not pointed out to us any contention raised by them in the written statement which has not been dealt with by the learned Single Judge. That being so, the absence of Issues cannot be said to have prejudiced the appellants. Even the complaint of the appellants that they were not allowed to lead evidence seems to be frivolous because the contentions raised in the suit are legal contentions for which hardly any evidence was necessary in view of the pleas raised.

9. The first contention that has been raised by Mr. Vohra, learned counsel for the appellants, is that this Court has no jurisdiction to entertain this suit. This argument is that a suit as authorised by Section 92 of the Code of Civil Procedure has to be filed in the principal civil Court of original jurisdiction which in Delhi is the Court of the District Judge, Delhi, by reason of Section 24 of the Punjab Courts Act which provides that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district. On this question it is relevant to mention that the valuation of the suit was fixed in the plaint at Rs.2,50,000/- and no plea has been raised in the written statement objecting to this valuation. This question has, thereforee, to be decided on the basis that the valuation of the suit has been fixed correctly at Rupees 2,50,000/-.

10. If only Section 24 of the Punjab Courts Act were to be taken into consideration then there will be no doubt that the principal Civil Court of original jurisdiction to try this suit would be the Court of the District Judge, Delhi. But a change was brought about by the Delhi High Court Act, 1966, as amended, by sub-section (2) of Section 5 which provides that notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the territory of Delhi ordinary original civil jurisdiction in every suit the value of which exceeds fifty thousand rupees. This sub-section starts with a non-obstante clause and is applicable to 'every' suit the value of which exceeds fifty thousand rupees. This being a suit the value of which exceeds fifty thousand rupees would be covered by this sub-section. The argument of Mr. Vohra is that there could be two principal Civil Courts of original jurisdiction within the meaning of Section 92 of the Code of Civil Procedure. It is difficult to accept this contention. After the coming into force of the Delhi High Court Act, 1966, as amended, this Court has become the principal Civil Court of original jurisdiction with respect to every suit the value of which exceeds fifty thousand rupees. In view of the non obstinate clause contained in sub-section (2) of Section 5 of the Delhi High Court Act, 1966, the Court of the District Judge, Delhi, has ceased to remain the principal Civil Court of original jurisdiction with respect to any suit value of which exceeds fifty thousand rupees. Full effect has to be given to the language employed in sub-section (2) of Section 5 'notwithstanding anything contained in any law for the time being in force' and that can be done only by saving that for purposes of Section 92 of the Code of Civil Procedure, the Court of the District Judge, Delhi, will be the principal Civil Court of original jurisdiction in every suit the value of which does not exceed fifty thousand rupees but in other suits the value of which exceeds fifty thousand rupees, this High Court will be the principal Civil Court of original jurisdiction. It cannot be disputed that if original jurisdiction had been completely taken away from the Court of the District Judge, Delhi and conferred upon this High Court, then notwithstanding Section 24 of the Punjab Courts Act, this High Court will be the principal Civil Court of original jurisdiction irrespective of the valuation of the suit as in the case of what are called the Presidency High Courts. Reference in this connection may be made to : AIR1955Bom55 in re: Fazlehussein Haiderbhoy Buxamusa v. Yusufally Adamji, where it has been held that the Bombay High Court in the City of Bombay is the principal Civil Court of original jurisdiction. The original jurisdiction value of this High Court is in every suit the value of which exceeds fifty thousand rupees and thereforee, this High Court is the principal Court of original civil jurisdiction in every such suit. A jurisdiction of the Court of the District Judge, Delhi has been conferred upon this High Court and, thereforee, with respect to such part, this High Court will be the principal Court of ordinary original civil jurisdiction notwithstanding Section 24 of the Punjab Courts Act. We, thereforee, agree with the learned Single Judge that for the purpose of this suit the value of which exceeds fifty thousand rupees, the High Court is the principal Civil Court of original jurisdiction as contemplated by Section 92 of the Code of Civil Procedure.

11. The next contention raised by the appellants is with respect to the factum and validity of the sanction under Section 92 of the Code of Civil Procedure for filling this suit. The bald plea raised by the appellants in their written statement was that they denied 'the factum and the validity of the consent of the Collector as alleged'. No details are given as to why the factum of the consent is denied. The fact of the matter is that the consent was given by Mr. A.A. Khwaja who has described himself as 'Addl; District Magistrate (North) exercising powers of Advocate General under Section 92 of the Civil Procedure Code.' If the appellants wanted to question the authority of Mr. Khwaja to grant the consent under Section 92 of the Code of Civil Procedure, they should have pleaded facts and made averments to show the basis for this contention. The consent obtained by the respondents had been filed with the plaint. It was for the appellants to give reasons to show that the consent granted was not the consent of the Collector within the meaning of Section 92 and 93 of the Code of Civil Procedure. The pleading as to the factum of the consent of the Collector is completely value and did not give rise to any Issue in the absence of particulars. In fact, the judgment of the learned Single Judge does not record any contention relating to the factum of the consent by the Collector, Mr. Vohra has attempted to argue that Mr. Khwaja does not describe himself as the Collector but only as the Additional District Magistrate (North) and as such ex facie the consent is not that of the Collector. If particulars of the plea had been given in the written statement, it would have been open to the respondents to show that Mr. Khawaja had been appointed under Section 93 of the Code of Civil Procedure to exercise the powers of the Advocate General. We are not, thereforee, prepared to entertain the plea that the consent has not been granted by the Collector.

12. The connected contention is that the consent was not validly obtained. All that has been pleaded in paragraph 2 of the preliminary objections in the written statement amounts to a denial that all the facts were disclosed to the authority concerned with a view that the consent has been fraudulently obtained. The facts which were not disclosed or the facts relating to the alleged fraud have not been disclosed in the written statement. The learned Single Judge was, thereforee, right in observing that the details of the allegation fraud stated to have been committed by the respondents on the Collector while obtaining the consent under Section 92 of the Code of Civil Procedure are lacking and not a single instance of the fraud has been cited by the appellants in the written statement O.6 R. 4 of the Civil P.C. requires that in all cases in which the party pleading relies on, inter alias any fraud particulars with dates and items if necessary shall be stated in the pleading. In the absence of such particulars, the plea of fraud is not open to the appellants and the mere allegation that the consent had been fraudulently obtained would not call for the farming of an Issue or the taking of any evidence. We, thereforee, hold that in the state of the pleadings in this suit, the appellants cannot be heard to deny the factum or validity of the consent granted by Mr. Khwaja to the respondents.

Mr. Vohra argued that the respondents had applied for sanction in their capacity as office-bearers of the Gurdwara Prabandhak Committee but sanction was given only to the respondents personally. We do not find any substance in this connection because in the order granting consent, the respondents are named in their personal capacity and their capacity qua the Gurudwara Prabandhak Committee has been mentioned as a description. In the plaint the respondents have stated that the suit has been instituted by them and also purports to be on behalf of the Gurudwara Prabandhak Committee as represented by its Secretary and President as required by Section 6 of the Societies Registration Act, 1860. It is, thereforee, clear that the suit has been filed by the respondents in their personal capacity and also as office bearers of the Gurudwara Prabandhak Committee. Even if the suit on behalf of the Gurdwara Prabandhak Committee is not competent, no objection could be raised to the competency of the respondents to file the suit as the consent has not been granted to them in their names. This contention is also without force.

13. The last contention is that there was no admission by the appellants in their written statement as contemplated by Order 12, Rule 6 of the Code of Civil Procedure and, thereforee, the learned Single Judge was not right in stating that there was such an admission and deciding the suit on its basis. Even though there is strictly no admission to invoke Order 12, Rule 6 of the Code of Civil Procedure, the question is whether the parties were at Issue with regard to the desirability of making the donation of RS.2,50,000/- for the purpose of Eye Hospital. As has been mentioned in the earlier part of this judgment, the appellants themselves have stated that they are whole heartedly with the scheme mentioned and would also contribute their mite in a reverential spirit. No averments has been made that looking to the finances of the Gurudwara Prabandhak Committee such a donation cannot be made. In these circumstances even though there is no admission on the part of the appellants, they have not raised any objection to the desirability of making the donation. In fact, they have gone to the extent of saying that they will themselves contribute to the scheme. Their only objection is that they cannot allow the present Gurdwara Prabandhak Committee to take personal advantages. What those advantages are has not been specified. Keeping in view that there was no objection to the desirability of making the donation and also the fact that there is pending litigation between the parties, the learned Single Judge has taken care to give a direction that the donations must be made through a cross cheque drawn in the payee's account. This direction will ensure that the donations to be made by the Gurdwara Prabandhak Committee will go into proper hands and we have really been unable to find why the appellants who admit the desirability of the donations have filed a written statement to this suit.

14. Questions have been raised in the written statement as to the legality of the Gurudwara Prabandhak Committee as at present constituted. Allegations have been made that the funds of the Gurudwara Prabandhak Committee are being squandered by the present Committee. These questions are irrelevant for the purpose of the present suit. In the case of a public trust where directions of the Court are considered necessary any two or more persons having an interest in the trust can file a suit under Section 92 of the Code of Civil Procedure after obtaining the necessary consent. The respondents could in their personal capacity have filed the suit and in this suit the only question which falls for consideration is whether the proposed donation should be made by the Gurudwara Prabandhak Committee irrespective of who its present office bearers may be. The allegations made in the written statement cannot be tried in this suit and did not call for any issue.

15. This appeal is, thereforee, dismissed but there will be no order as to costs.

16. Appeal dismissed.


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