Whether principles of res judicata are applicable to compromise decree?

 E.2.4 Compromise decree and Res Judicata

46. It is contended by the counsel for the Appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao MANU/SC/0018/1963 : AIR 1967 SC 591 and Sunderabai v. Devaji Shankar Deshpande MANU/SC/0098/1952 : AIR 1954 SC 82, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:

12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Code of Civil Procedure would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the Code of Civil Procedure at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:

The present Section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum.

Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. d. Additionally, the counsel for the Respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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What are twin tests to identify whether an issue has been conclusively decided in the previous suit attracting bar of res judicata in the subsequent suit?

In view of the authorities cited above, the twin test that is used for the identification of whether an issue has been conclusively decided in the previous suit is:

 A. Whether the adjudication of the issue was 'necessary' for deciding on the principle issue ('the necessity test'); and

B. Whether the judgment in the suit is based upon the decision on that issue ('the essentiality test').{Para 40}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Basic principles for deciding whether the matter was "directly and substantially" in issue and when it was only "collaterally or incidentally" in issue

 On a perusal of the above authorities it is evident that a representative suit is binding on all the interested parties. Therefore, the judgment of the court in the first suit would be binding on Jamia Masjid and would preclude it from instituting another suit on the same issue if it has been conclusively decided. It is now to be analysed if the substantive issue in the instant suit was conclusively decided in the first suit.

E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issue was 'directly and substantially' decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer MANU/SC/0122/2000 : (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression "directly and substantially in issue" in Section 11 and laid down the twin test of essentiality and necessity:

12. It will be noticed that the words used in Section 11 Code of Civil Procedure are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [MANU/SC/0345/1964 : AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [MANU/SC/0510/1976 : (1976) 4 SCC 780 : AIR 1976 SC 1569]). We are of the view that the above summary in Mulla is a correct statement of the law.

19. We have here to advert to another principle of caution referred to by Mulla (p. 105):

It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.

(emphasis supplied)

37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions12, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.

38. In another decision in Gram Panchayat of Village Naulakha v. Ujagar Singh MANU/SC/0628/2000 : (2000) 7 SCC 543, it has been held that the decision in an earlier suit for an injunction, where no question of title was adjudicated upon will not be binding on the question of title:

10. We may also add one other important reason which frequently arises Under Section 11 Code of Civil Procedure. The earlier suit by the Respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer [MANU/SC/0122/2000 : (2000) 3 SCC 350] where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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What is the scope of the suit filed U/S 92 of CPC?

  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 pre 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 Abdul Rahil v. Md. Barkat Ali. MANU/PR/0084/1927 : 55 Ind, App. 96, Procedure Code 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 Code of Civil Procedure. 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 Plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit Under Section 92 of the Code of Civil Procedure became wanting and the Plaintiffs 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 Plaintiffs. It has been argued by the learned Counsel for the Respondents that even if the Plaintiffs 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 Code of Civil Procedure 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 of the Code of Civil Procedure. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. {Para 10}

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit Under Section 92 Code of Civil Procedure:

(i) The Plaintiff can only seek reliefs that fall under any of the clauses in Section 92 Code of Civil Procedure. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in Section 92 Code of Civil Procedure and is outside the scope of the provision;

(ii) Merely because the Defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the Plaintiff is entitled to the relief sought Under Section 92 Code of Civil Procedure; and

(iv) If the Plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit Under Section 92 Code of Civil Procedure was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, Under Section 92 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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When can the court decide the issue of res judicata as a preliminary issue?

 We are unable to accept the submission of the Appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this Court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Whether the subsequent suit is barred by res judicata if there has been any material alteration in law or facts since the first suit was decreed?

 The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of Section 11 Code of Civil Procedure are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Whether the second suit is barred by res judicata if the decree passed in the previous suit is nullity?

 Justice K. Ramaswamy writing for a three judge bench of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra MANU/SC/0593/1989 : (1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of 'mixed question of law and facts' in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:

26. The doctrine of res judicata Under Section 11 Code of Civil Procedure is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021

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Whether a party can claim a declaration of title in Representative suit?

 E.2.1 Determination of title in a Representative suit

32. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai AIR 1952 SC 143, a three judge Bench of this Court explained the ambit of a representative suit under Section 92 of the CPC. In that case, one of the reliefs sought was the declaration of the suit property as the religious and charitable trust property of Kaivalya or Karuna Sagar Panth while the defendant contended that the suit property was private property. Justice BK Mukherjea speaking for the Bench expounded on the scope of a suit under section 92 CPC, particularly in view of the relief seeking a declaration:

“10 A suit under S.92. Civil P.C. 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 pre fulfilled that the suit has got to be brought in conformity with the provision of S.92, Civil P.C. As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind, App. 96, P.C. 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 S.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 plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit under Section 92 of the Civil Procedure Code became wanting and the plaintiffs 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 plaintiffs. It has been argued by the learned Counsel for the respondents that even if the plaintiffs 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 of the Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.

”

(emphasis supplied)

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit under section 92 CPC:

(i) The plaintiff can only seek reliefs that fall under any of the clauses in section 92 CPC. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in section 92 CPC and is outside the scope of the provision;

(ii) Merely because the defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the plaintiff is entitled to the relief sought under Section 92 CPC; and

(iv) If the plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit under section 92 CPC was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, under Section 92 of the CPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

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When would adverse findings given on any particular issue not be res judicata?

 E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issue was ‘directly and substantially’ decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer.25 (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression “directly and substantially in issue” in Section 11 and laid down the twin test of essentiality and necessity:

“12. It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.”

PART E

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter “directly and substantially” in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was “directly and substantially” in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law.

19. We have here to advert to another principle of caution referred to by Mulla (p. 105):

“It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.”

(emphasis supplied)

37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions26, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

Author: Dr Dhananjaya Y Chandrachud, J

Dated:September 23, 2021

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Supreme Court: Factors to be considered by the court for grant of leave to institute suit U/S 92 of CPC against the public trust

The statement of law so laid down was reiterated:

A) In Bishwanath and Anr. v. Shri Thakur Radhaballabhji and Ors. MANU/SC/0263/1967 : (1967) 2 SCR 618

It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. ... ...

B) In Sugra Bibi v. Hazi Kummu Mia MANU/SC/0239/1968 : (1969) 3 SCR 83

It is evident that this Section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.

13. Three conditions are therefore, required to be satisfied in order to invoke Section 92 of the Code and to maintain an action under said Section, namely, that

(i) the Trust in question is created for public purposes of a charitable or religious nature;

(ii) there is a breach of trust or a direction of Court is necessary in the administration of such a Trust; and

(iii) the relief claimed is one or other of the reliefs as enumerated in said Section.

Consequently, if any of these three conditions is not satisfied, the matter would be outside the scope of said Section 92.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1917 of 2020 

Decided On: 03.03.2020

 Ashok Kumar Gupta Vs  Sitalaxmi Sahuwala Medical Trust and Ors.

Hon'ble Judges/Coram:

U.U. Lalit and Vineet Saran, JJ.

Citation: MANU/SC/0259/2020,(2020) 4 SCC 321

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Supreme Court: S 92 of CPC is not applicable to suit filed by trust

Section 92 of the Code

contemplates a suit against a Trust either for removing any trustee;

appointing new trustee; or vesting any property in a trustee etc.

but the present suit itself is by a Trust against a Sevadar, therefore,

the procedure prescribed under Section 92 of the Code would not

be applicable in a suit by a Trust. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 724 OF 2020

GHAT TALAB KAULAN WALA  Vs  BABA GOPAL DASS CHELA SURTI DASS

HEMANT GUPTA, J.

Dated:JANUARY 31, 2020.

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Supreme Court: It is mandatory to obtain leave of court for filing suit U/S 92 of CPC

 A plain reading of Section 92 of the Code indicates that

leave of the court is a precondition

or a condition precedent for

the institution of a suit against a public trust for the reliefs set

out in the said section; unless all the beneficiaries join in

instituting the suit, if such a suit is instituted without leave, it

would not be maintainable a all. Having in mind the objectives

underlying Section 92 and the language thereof, it appears to us

that, as a rule of caution, the court should normally, unless it is

impracticable or inconvenient to do so, give a notice to the

proposed defendants before granting leave under Section 92 to

institute a suit. …”

7. Learned counsel for the appellant urges that in view of

law laid down by this Court, it is imperative that leave must

be granted before the suit is instituted. There is no quarrel

with this proposition and we are not inclined to hold, as the

High Court did, that leave can be presumed to have been

granted. There can be no presumption of this kind in a case

of this nature. We are clearly of the view that in every suit

filed under Section 92, CPC, the grant of leave is necessary

before the suit can be said to be properly instituted.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 6067/2010

BHUPINDER SINGH Vs  JOGINDER SINGH

Deepak Gupta, J.

Dated:September 18, 2019.

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Whether every suit relating to public trust should be filed U/S 92 of CPC?

 It is argued by the learned counsel for the respondents that
if the appellants wanted any relief against the respondents complaining
of a breach of trust, their remedy should have been a suit under
Section 92 of the Code. In answer to this contention, learned counsel
replied that the appellants do not seek any of the reliefs enumerated in
Section 92(1) (a) to (h) of the Code. Settled legal position is that any
and every suit relating to a public trust need not be under Section 92 of
the Code, unless the reliefs claimed therein do fall within the matters
enumerated in Section 92(1) of the Code.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE A.HARIPRASAD
&
MRS. JUSTICE SHIRCY V.

RFA.No. 360 of 2018

P.E. THOMAS EACEY, Vs MR.ABRAHAM JOSE ROCKY,

Dated this the 21st day of June, 2019

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Whether it is necessary to file plaint along with application U/S 92 of CPC in suit relating to trust?

Apart from the above discussion, we have also taken notice of the fact that plaint was not annexed with the application filed Under Section 92 of the Code of Civil Procedure which is pre-requisite for filing the application for leave to file a suit. Based on the averments in the plaint only, it can be inferred that whether an application Under Section 92 is maintainable or not. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3166 of 2017 (Arising out of SLP(C) No. 34719 of 2011)

Decided On: 23.02.2017

 Swami Shivshankargiri Chella Swami and Ors. Vs. Satya Gyan Niketan and Ors.

Hon'ble Judges/Coram:
Pinaki Chandra Ghose and Ashok Bhushan, JJ.
Citation: 2017(5) MHLJ527.

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When suit is not maintainable under S 92 of CPC?

The High Court has effectively faulted the appellants for not making the first
strike to secure a ban on the objectionable book. This is really a question of the degree
of reaction to the objectionable book on which we would not like to comment. The
appellants could have expressed their displeasure over the contents of the
objectionable book, or dissociated themselves from the objectionable book or even
taken proactive steps to have the objectionable book banned or proscribed. That the
appellants chose only to express their displeasure may be construed as a mild reaction
(as compared to outright condemnation of the objectionable book), particularly since
the appellants had nothing to do with its publication. But the question is whether the
mild reaction is perverse or could in any way be held to be a breach of trust or an
absence of effective administration of the Trust warranting the removal of the trustees.
We do not think so. Failure to take steps to ban a book that is critical of the
philosophical and spiritual guru of a Trust would not fall within the compass of
administration of the Trust. It might be an omission of the exercise of proper
discretion on the part of the trustees, but certainly not an omission touching upon the
administration of the Trust. We are not in agreement with the High Court that the
failure of the appellants to take the initiative in banning the objectionable book gives
rise to a cause of action for the removal of the trustees of the Trust and settling a
scheme for its administration. The trustees of a trust are entitled to a wide discretion in
the administration of a trust. A disagreement with the exercise of the discretion
(however passionate the disagreement might be) does not necessarily lead to a

conclusion of maladministration, unless the exercise of discretion is perverse. In our
opinion, the High Court ought to have allowed the application filed by the appellants
for the revocation of leave granted to the respondents to initiate proceedings under
Section 92 of the CPC, in the facts of this case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDCITON
CIVIL APPEAL NO. 12 OF 2016
(Arising out of S.L.P. (Civil) No. 25788 of 2013)
Sri Aurobindo Ashram Trust and Ors. …Appellants
Versus
R. Ramanathan and Ors. ...Respondents
Citation:(2016) 6 SCC105
Madan B. Lokur, J.

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