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(Allabaksh Mira) Mohadeen Saheb and ors. Vs. Setti Chinna FakruddIn Saib - Court Judgment

LegalCrystal Citation
SubjectTrusts and societies
CourtChennai
Decided On
Reported inAIR1925Mad636; 85Ind.Cas.1045
Appellant(Allabaksh Mira) Mohadeen Saheb and ors.
RespondentSetti Chinna FakruddIn Saib
Cases ReferredFollowing Srinivasa v. Venkata
Excerpt:
- .....outside the scope of that section has been inserted in the plaint and that has been covered by the general sanction, it cannot be said that the striking out of that relief, which did not fall strictly within the scope of section 92, cannot be made without the sanction of the advocate-general...if the original prayer struck out does not fall within the scope of section 92, then there can be no reason, in our opinion, why the amendment should not be made.5. it is obvious that the further question whether the plaint in such cases should be rejected was not considered in that case. it is also not clear from the report whether the relief struck out was specifically mentioned in the order of the advocate general granting sanction. applying the principle of this decision, the case in sayad.....
Judgment:

Madhavan Nair, J.

1. The only question argued in this Second Appeal is as regards the maintainability of the suit. The plaintiffs who are appellants, instituted the suit, out of which this Second Appeal arises, for the removal of the defendant, from the trusteeship of a certain Muhamadan religious institution, in Tadpadri town after obtaining sanction from the Collector, under Section 93, Civil Procedure Code. The Collector's order according sanction to file a suit was not only for removing the trustee, but also for 'declaring the alienations made by him null and void'.... (Relief No. 3 in Exhibit A) 'and for recovering the trust properties from the alienees' (Relief No. 4). The plaint, however, omitted these two reliefs and asked only for the removal of the trustee, who was made the sole defendant in the suit. It was held by the lower Court that, since the reliefs asked for in the plaint, did not precisely correspond with the reliefs mentioned in the sanction order, or, in other words, since the suit instituted differed from the one, for which sanction was given the plaint was rightly rejected by the District Munsif. The correctness of this decision is now challenged in this second appeal.

2. In Srinivasa v. Venkata (1888) 11 Mad. 148 two worshippers at a Hindu temple, obtained sanction, under Section 18 (corresponding to Section 92, Civil Procedure Code) of the Religious Endowments Act, to sue for the removal of the Managers of the temple, on the ground of breach of trust and for damages. In the suit, actually brought by them, the claim for damages was omitted and it was held that, as the suit actually instituted was not the one, for the institution of which sanction was given, the plaint was properly rejected. The principle on which this decision is based is thus stated by Muthuswami Aiyar and Brandt, JJ.:

Having regard to the fact that the character of the suit which the appellant proposed to institute, was one of the circumstances, which the Judge was entitled to take into consideration, in forming an opinion, as to whether the application was bona fide, we are not prepared to hold that the appellant was entitled, as a matter of right, to give the suit a character different from that in respect of which sanction was granted. The obligation which Section 18 imposes on the Judge to satisfy himself that there are sufficient prima facie grounds for the institution of the suit and the power conferred upon him by Section 19, to call for the production of accounts of the trust, for giving leave for the institution of the suit, indicate an intention, on the part of the legislature, to provide an adequate protection to the trustees against vexatious suits and in cases of doubt, we think, we ought so to construe 8. 18, as not to take away the protection.

3. This decision is cited with approval in Sayad Hussein Miyan v. Collector of Kaira (1887) 21 Bom. 257 which was a case, in which a relief, other than those included in the terms of the sanction, was sought.

4. It is argued, on behalf of the appellants that, if the reliefs omitted in the plaint do not strictly fall within the scope of Section 92 - as in the present case-then, the fact that the order according sanction mentions them does not entitle the Court to reject the plaint; in other words, the close correspondence between the terms of the order granting sanction and the plaint is not required in such cases. This argument receives support, to a certain extent, from a decision in Ramnrup Das v. Mohunt Shiyaram Das 14 C.W.N. 932. In that case, the plaintiff had instituted a suit under Section 92, Civil Procedure Code for (a) removal of a Mohunt (b) for the appointment of plaintiff No. 1, as the Mohant...and for other reliefs, marked (c), (d), (e), and (f) in the plaint. Apparently for the purpose of reducing the Court-fees, when that question was raised, the plaintiff obtained an amendment of the plaint, by striking out the relief prayed for, for the appointment of plaintiff No. 1 as the Mohant. When the order allowing amendment was attacked on the ground that it could not be made, without the sanction of the Advocate-General, Holmwood and Chatterjee, JJ., observed in their judgment as follows:

If the Advocate-General has sanctioned the suit, under Section 92 and something outside the scope of that section has been inserted in the plaint and that has been covered by the general sanction, it cannot be said that the striking out of that relief, which did not fall strictly within the scope of Section 92, cannot be made without the sanction of the Advocate-General...if the original prayer struck out does not fall within the scope of Section 92, then there can be no reason, in our opinion, why the amendment should not be made.

5. It is obvious that the further question whether the plaint in such cases should be rejected was not considered in that case. It is also not clear from the report whether the relief struck out was specifically mentioned in the order of the Advocate General granting sanction. Applying the principle of this decision, the case in Sayad Hussein Miyan v. Collector of Kaira (1897) 21 bom. 257 is explained by the appellants' learned vakil by pointing out that the added relief in that case was one for which sanction was required under Section 92, Civil Procedure Code; but as already mentioned, that decision cites with approval the decision in Srinivasa v. Venkata (1888) 11 Mad. 148. It has also been argued for the appellants that) since the alienees are not necessary parties to a suit under Section 92, Civil Procedure Code, the reliefs omitted cannot be asked for, in this suit, and that the plaint should not, therefore, have been rejected. In Raghavalu Chetti v. Pellali Sitamma : (1914)27MLJ266 it was observed by the learned Chief Justice:

That if they (alienees) had desired to be made parties, I agree that an order adding them might properly have been made ; but I do not think that they ought to be made parties against their will to a suit under Section 92.

6. In my opinion, none of these decisions affects the principle, which has been enunciated by the learned Judges in Srinivasa v. Venkata (1888) 11 Mad. 148. Obviously, it must be difficult to assess the value of each of the considerations that operated to secure the consent of the Advocate General. As pointed out by the District Judge:

It may well be that had the applicants not expressed their intention to recover the trust properties, the Collector would not have consented to the suit.

7. Following Srinivasa v. Venkata : (1914)27MLJ266 I hold that the plaint in this case was rightly rejected.

8. As it will cause no serious hardship to the appellants to file a fresh suit, I think the amendment of the plaint asked for only in the appellate Court was rightly disallowed by the District Judge.

9. The Second Appeal is therefore dismissed with costs.


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