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Prithipal Singh v. Magh Singh And Ors
Structured Summary of the Opinion
Factual and Procedural Background
The respondents together with the plaintiff filed an application under Section 92 of the Civil Procedure Code seeking permission to file a suit to remove the petitioner, Prithipal Singh, from the Managership of the Dharamshala Kohala, Tahsil Zira, and to restrain him from alienating certain land (113 Kanals 13 Marlas, specified by Khasra numbers in the plaint). The petitioner-defendant filed a written statement on 6 December 1980. The matter was adjourned to 13 December 1980 for framing issues and for the petitioner's reply to the application for leave to file the suit. On that date the petitioner filed a reply arguing, inter alia, that the mandatory provision of Section 92 (regarding requisite permission) had been violated because the plaintiffs had not obtained the permission of the Advocate General, and he also raised an objection to the trial court's jurisdiction.
Two preliminary issues were framed: (1) whether the Court had jurisdiction to try the suit; and (2) whether the approval of the Court or Advocate General was necessary before filing the suit. Both issues were decided against the petitioner and the preliminary objections were overruled. The petitioner then challenged those determinations by way of the present petition.
Legal Issues Presented
- Whether the Court has jurisdiction to try this suit (i.e., whether the trial Court in question was competent to try a suit under S. 92 Civil P. C.).
- Whether the approval of the Court or the Advocate General is necessary before filing a suit under S. 92 Civil P. C. (i.e., whether leave is a condition precedent and the competent authority to grant it).
Arguments of the Parties
Petitioner-defendant's Arguments (Mr. Jain)
- The trial Court lacked jurisdiction and only the District Judge (principal Civil Court of original jurisdiction) was competent to try a suit under S. 92, unless there was a specific notification empowering the trial Court.
- Relied on the decision in Gangagir Chela v. Rasal Singh (AIR 1965 Punj 472) to support the contention that under S. 92 the institution and subsequent trial and disposal must take place in the Court of the District Judge unless authority under S. 21 of the Punjab Courts Act or S. 76 of the Pepsu Judicature Ordinance had been exercised to assign the matter to an Additional District Judge.
- Argued that no notification empowered the trial Court and therefore the suit had to be instituted and tried in the Court of the District Judge.
- Contended that leave (a condition precedent under S. 92) ought to have been granted before filing the suit and that the trial Court did not apply its mind or give reasons when granting leave (i.e., the order granting leave was not reasoned).
Respondents'/Plaintiffs' Arguments
- Pointed to the gradation and distribution list of officers of the Judicial Department of Punjab (a government publication) and particularly para 7, which specifically dealt with powers to hear suits under S. 92 Civil P. C., stating that such powers are exercised ex officio by all Subordinate Judges in the State of Punjab.
- Relied on the gradation list as evidence of governmental empowerment of subordinate judges to receive plaints and try suits under S. 92, rather than requiring a separate gazette notification for each court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gangagir Chela v. Rasal Singh, (1965) 67 Pun LR 592 : AIR 1965 Punj 472 | Stated that under S. 92 Civil P. C. a suit must be instituted and subsequently tried in the Court of the District Judge unless the District Judge exercises statutory authority (under S. 21 of the Punjab Courts Act or S. 76 of the Pepsu Judicature Ordinance) to assign the matter to an Additional District Judge. | The Court considered and distinguished the precedent: it observed that Gangagir was concerned with competency where an Additional District Judge had tried the suit and that the decision recognized the power of the District Judge to assign matters under the cited statutory provisions. The Court concluded Gangagir did not support the petitioner's contention that only the District Judge could try S. 92 suits absent any assignment under S. 21/S. 76. |
Court's Reasoning and Analysis
The Court proceeded by examining the statutory text and the administrative framework relied upon by the parties:
- Interpretation of S. 92 Civil P. C.: The Court set out S. 92 in full and noted that it permits suits under S. 92 to be instituted either in the principal Civil Court of original jurisdiction (the District Judge) or in "any other Court empowered in that behalf by the State Government" within whose local limits the subject-matter lies. Thus S. 92 itself contemplates suits being instituted outside the District Judge's Court where the State Government has empowered other courts.
- Application of Section 15 of the Code: The Court relied on Section 15 (every suit shall be instituted in the Court of the lowest grade competent to try it) to conclude that if there is a choice between the District Judge and any other empowered Court, the plaintiffs must institute the suit in the lowest competent Court.
- Effect of the gradation and distribution list: The respondents drew the Court's attention to the gradation list issued by the Punjab Government (a government publication) which, in para 7, explicitly states that powers under S. 92 are exercised ex officio by all Subordinate Judges in Punjab. The Court held that the gradation list — being prepared and approved by the Government and published by it — suffices as evidence of the Government's action empowering subordinate judges; a separate gazette notification was not required by S. 92 itself.
- Role of Gangagir Chela v. Rasal Singh: The Court reviewed Gangagir and explained that that decision addressed the competency of an Additional District Judge who had tried a S. 92 suit; Gangagir recognized the District Judge's power under S. 21 (Punjab Courts Act) and S. 76 (Pepsu Judicature Ordinance) to assign business to an Additional District Judge. The present Court concluded that Gangagir does not support the petitioner's argument that trial must be in the District Judge absent any assignment.
- Authority to grant leave under S. 92: The Court noted that S. 92 itself envisages that "both the Civil Court of original jurisdiction or other Court" can grant the requisite leave to file a suit. Therefore, the trial Court in the present case was competent to grant leave under S. 92.
- Timing and nature of leave: While accepting that leave is a condition precedent to filing a suit and that the provisions of S. 92 are mandatory in that respect (and that a defendant cannot waive that right), the Court found that in the present case the trial Court had in fact granted permission prior to the substantive trial: the plaintiffs filed an application for leave, the defendant challenged competency and jurisdiction, the Court framed preliminary issues and, while deciding them against the defendant, observed that the plaintiffs had permission to file the suit and that trial would proceed from that stage. The Court characterized this as a proper procedure and as satisfying the requirement that leave precede trial.
- Requirement of a reasoned order: The petitioner argued the trial Court failed to apply its mind or to give reasons when granting leave. The Court rejected this argument, holding that the order granting leave is of an administrative nature and the Court is not required to write a reasoned order or to give notice to the defendant when granting such administrative leave under S. 92.
- On the trial Court's earlier observation that the grant of leave was a mere irregularity cured by the defendant filing a written statement: The present Court observed that the trial Court was not correct in stating that filing a written statement operates as a waiver, but nonetheless held that the trial Court had granted tacit permission in the course of deciding preliminary issues and that this procedure was proper.
Holding and Implications
Holding: The petition is dismissed. The Court expressly found no merit in the petitioner's contentions regarding (a) the trial Court's competence to try the suit and (b) the sufficiency of the trial Court's grant of leave under S. 92. The dismissal was made with no order as to costs.
Implications:
- The direct effect is that the trial Court's decisions — that it had jurisdiction, that leave to file the suit under S. 92 was properly granted (including by tacit permission during preliminary proceedings), and that subordinate judges are empowered (as reflected in the gradation list) to hear suits under S. 92 — stand affirmed in this petition.
- The opinion records that leave under S. 92 is a condition precedent and mandatory; however, it also holds that a government-issued gradation list published and approved by the Government may constitute sufficient evidence of empowerment of subordinate courts for the purposes of S. 92, and that the administrative nature of leave does not require a reasoned order. The Court did not purport to lay down any broader legal precedent beyond the application of the statutes and administrative practice to the facts of this case.
Case outcome: Petition dismissed. (No order as to costs.)
1. The respondents along with the plaintiff moved an application in compliance with the requirement of S. 92 Civil P. C. seeking the requisite permission for filing the suit for the removal of Prithipal Singh petitioner herein from the Managership of the Dharamshala Kohala Tahsil Zira, and for restraining him from alienating in any way the land attached to it measuring 113 Kanals 13 Marlas and bearing Khasra numbers mentioned in the plaint.
2. Petitioner-defendant filed the written statement to the plaint on 6th Dec, 1980. The case was adjourned to 13th Dec., 1980 for framing of issues and for the reply of the petitioner-defendant to the application for grant of leave to the filing of the suit. On 13th Dec. 1980, reply to the said application was filed. The stand taken by the petitioner-defendant in the reply to the application was that the Court could grant any permission regarding the filing of the suit under S. 92 Civil P. C., mandatory provision of the said section had been violated by the plaintiffs, as they did not obtain the requisite permission of the Advocate General before filing the suit. An objection to the jurisdiction was also taken. This led to the framing of the following two preliminary issues as under :--
1. Whether the Court has got any jurisdiction to try this suit ?
2. Whether the approval of the Court or Advocate General is necessary before filing the suit ?
3. Both the issues were decided against the petitioner defendant and preliminary objections were thus overruled.
4. it was argued before the trial Court in regard to the jurisdiction of the Court that only District Judge as the principal Court of Civil Jurisdiction, had the competence to try the suit.
5. Mr. Jain. counsel for the petitioner has reiterated the very submission and has canvassed that unless there was any notification empowering the trial Court in question, the trial Court could not try the suit. He has sought sustenance from a decision of this Court reported in Gangagir Chela v. Rasal Singh, (1965) 67 Pun LR 592 : (AIR 1965 Punj 472) and drew pointed attention to the finding that under S. 92 Civil P. C. it is not only the institution of the suit but its subsequent trial and disposal also must take place in the Court of the District Judge, that however, under S. 21 of the Punjab Courts Act or S. 76 of the Pepsu Judicature Ordinance the District Judge can assign a part of the business pending before him to the Additional District Judge and when he does so, the latter can exercise the same powers could, and that a suit under S. 92 of the Code must be instituted in the Court of the District Judge but there is no bar or prohibition against the exercise of his powers assigning the business to the Additional District Judge and once such suits are assigned to him he would be as competent to deal with it as the District Judge.
6. In my opinion there is no merit in the contention advanced on behalf of the petitioner. Gangagir's case (AIR 1965 Punj 472) (supra) was a case which was tried by the Additional District Judge, his competency to try the suit was questioned and it was in that context that it was said that the suit had not only to be instituted assuming that the suit could only be instituted in the Court of principal Civil Court of original jurisdiction, i.e., the District Judge but had also to be tried by him unless he exercised authority conferred on him under the provisions of S. 21 of the Punjab Courts Act and S. 76 of the Pepsu Judicature Ordinance and was to transfer the case for trial to the Additional District Judge. Relevant provision of S. 92 of the Code is in the following terms :--
"92(1). In the case of an alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate, General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contention or not in the principal Civil Court of original Jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :--
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require."
7. A perusal of the same would show that the suit under S. 92 of the Code can be instituted both in the Principal Civil Court of original jurisdiction as also in any other Court empowered in that behalf by the State Government, within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust was situated. Section 15 of the Code which is in the following terms envisages that every suit shall be instituted in the Court of lowest grade competent to try it:--
"15. Court in which suit is to be instituted,--Every suit shall be instituted in the Court of the lowest grade competent to try it."
8. In view of the provisions of section 15 if there was any choice to institute a suit either in the principal Court of Civil original jurisdiction, i.e., the District Judge, or any other Court then the plaintiff was to file a suit in the lowest Court.
9. It was then argued by Mr. Jain, that there has been no notification empowering any other Court and unless such a notification is there in suit had to be instituted and tried in the Court of the District Judge.
10. On behalf of the respondent attention of the Court is drawn to the gradation and distribution list of officers of the Judicial Department of Punjab issued by the Punjab Government and in particular to para 7 of the list which specifically deals with the powers to hear suits by Courts under S. 92 Civil P. C. Therein it is mentioned that the powers are exercised ex-officio by all subordinate Judges in the State of Punjab.
11. It deserves highlighting that such a provision has been in the gradation list all through, Mr. Jain, however argued that the gradation list cannot take the place of a specific notification by the Government.
12. Provisions of S. 92 of the Code do not envisage that other Courts are to be empowered by a gazette notification. Since the gradation list and its contents are prepared and approved by the Government and it is a Government publication and it mentions that the powers are exercised by all Subordinate Judges of Punjab ex officio, the same must be considered sufficient proof of the act of empowering by the Government of all Subordinate Judges including the trial Court in question, to receive the plaints and try the suits under S. 92 Civil P. C.
13. As regards the question of granting of leave a perusal of S. 92 of the Code supplies the answer in regard to the authority which has the power to grant leave. It envisages that both the Civil Court of original jurisdiction or other Court can grant the requisite leave for filing of the suit and, therefore, the stand of the defendant-petitioner that the Court was not competent to grant leave under S. 92 of the Code is not correct.
14. It has been next argued that leave being a condition precedent to the filing of the suit, so the leave ought to have been granted first before the filing of the suit.
15. There is no dispute with the proposition that the grant of leave is the condition precedent to the filing of the suit and that the provisions of S. 92 of the Code are mandatory in nature in that respect and a defendant cannot waive that right and thus confer jurisdiction on a Court. The trial Court in the present case was certainly not right in observing that the granting of leave is a mere irregularity which can be cured or that the defendant having filed the written statement should be taken to have waived his right to question the filing of the suit.
16. The trial Court however, further observed that it has granted tacit permission to the plaintiff, So the question that calls for consideration is as to whether the granting of tacit permission satisfies the requirement of S. 92 Civil P. C. in other words whether the procedure followed was a proper procedure.
17. In my opinion the procedure followed by the trial Court was the correct procedure. The plaintiff-respondents had moved an application for the grant of leave, wherein they have mentioned that the grounds of removal are those which are mentioned in the plaint. It so happened, that, as already pointed out, the defendant questioned the power of the Court to grant leave as also the competence to try the suit. In the circumstances the Court had to frame two preliminary issues and while deciding the two issues it observed that the plaintiffs have its permission to file the suit and it is from that stage that the trial of the suit would proceed. To that extent the granting of permission is prior to the filing of the suit.
18. Mr. Jain argued that there, had been no application of mind by the trial Court to the requirement of the provision of S. 92 in regard to the granting of leave in that it does not give any reason as to why the granting of leave was justifiable.
19. There is no merit in this contention as well. The Court does not have to write a reasoned order. It does not even have to give a notice to the defendant of such an application as the order granting leave is of an administrative nature.
20. For the reasons aforementioned there is no merit in this petition and the same is dismissed but with no order as to costs.
21. Petition dismissed.
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