BHUPINDER SINGH versus JOGINDER SINGH (D) BY LRS. & ORS.

Citation: [2019] 15 S.C.R. 631 · Decided: 18-09-2019 · Supreme Court of India · Bench: DEEPAK GUPTA, ANIRUDDHA BOSE · Disposal: Dismissed

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Judgment (excerpt)

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BHUPINDER SINGH
v.
JOGINDER SINGH (D) BY LRS. & ORS.
(Civil  Appeal No. 6067 of 2010)
SEPTEMBER 18, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 –s.92 – Case of the plaintiffs-
respondents was that father of the appellant-defendant was
Mohtmim of the Gurudwara and was looking after the same–
According to the plaintiffs, a committee for manning the
Gurudwara was set up and it wanted a scheme to be framed in
terms of s.92 for proper management of the Gurudwara in question
– Case of the appellant inter alia was that the Gurudwara was
private property, earlier owned by his father and now owned by
him and the suit u/s.92 was not maintainable – Application was
filed seeking leave of the Court to institute the suit u/s.92, but no
orders were passed – Plea of the appellant is that since no orders
were passed on the application for grant of leave, the entire
proceedings in the suit are vitiated and the orders passed therein
and subsequently in the appellate proceedings need to be set aside
– Held: s.92 clearly indicates that either a suit under the provision
can be filed by the Advocate General or by two or more persons
having interest in the trust and having obtained the leave of the
Court – In every suit filed u/s.92, the grant of leave is a necessary
pre-requisite before the suit can be said to be properly instituted –
In the present case there is an unusual situation where the appellant
contested the suit without raising the plea that leave of the Court
was not granted and submitted to the jurisdiction of the Trial Court
without any objection – Appellant was aware of such provision with
regard to grant of leave because in an earlier suit filed against
the appellant he took that objection and the suit was dismissed on
this ground – However, in the second round of litigation, the
appellant did not take this defence – Further, case of the appellant
himself was that his father was Mohtmim of the Gurudwara – A
Mohtmim is in the nature of Shebait/Manager of the Gurudwara
and cannot be the owner of the Gurudwara – Admittedly, about
14 kanals of land was donated by the villagers to the Gurudwara
   [2019] 15 S.C.R. 631
631
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
therefore, it is a public Gurudwara – Though legally the appellant
is right that the suit could not have been instituted without taking
leave yet, in the peculiar facts and circumstances of the case, the
appeal is not being continued – Present case decided in peculiar
facts and circumstances, not be treated as precedent.
Dismissing the appeal, the Court
HELD:1.1 A bare perusal of Section 92, CPC clearly
indicates that either a suit under the provision can be filed by
the Advocate General or by two or more persons having an
interest in the trust and having obtained the leave of the Court.
Grant of leave is a necessary pre-requisite before a suit under
Section 92, CPC can be entertained. In an application filed under
Section 92, CPC seeking leave to institute a suit, normally a
notice should be issued to the other side before passing orders
thereupon. However, that is not absolutely necessary and in an
emergent situation, the Court can grant leave even without
issuing notice to the other side but then the respondent has a
right to file an application for revocation of the leave granted.
In every suit filed under Section 92, CPC, the grant of leave is
necessary before the suit can be said to be properly instituted.
There is an unusual situation where the defendant contested the
suit without raising the plea that leave of the Court has not been
granted. Not only that, both sides led evidence and the matter
was decided on merits, the appellant submitted to the jurisdiction
of the Trial Court without any demur and objection. The
appellant was aware of such a provision with regard to grant of
leave because in an earlier suit filed against the appellant he had
taken an objection that leave had not been granted and that suit
was dismissed on this short ground. However, in the second
round of litigation, the appellant unfortunately chose not to take
this defence. The courts below have come to a finding of fact
that the Gurudwara is a public place of worship. In fact, the case
of the appellant/ defendant himself was that his father was
Mohtmim of the Gurudwara.  A Mohtmim is in the nature of
Shebait or Manager of the Gurudwara and cannot be the owner
of the Gurudwara. About 14 kanals of land was donated by the
villa

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