The main legal point established in the judgment is that a suit seeking reliefs available under Section 92(1) of the Code of Civil Procedure must obtain the mandatory leave of the Court as required under Section 92, and failure to do so may result in the rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

Anil Kumar, J.

1. This is an application by the defendant No. 1 under Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint on the ground that the suit should have been filed under Section 92 of the Code of Civil Procedure and the suit for declaration and injunction in not maintainable and therefore, the plaint is liable to be rejected. The applicant has contended that the suit has been filed by the plaintiff Sh.Hamid Ahmed, one of the mutawalli of defendant No. 6, Hamdard Dawakhana Wakf alleging inter-alia that Chief Mutawalli has been running the Dawakhana in a wholly arbitrary and autocratic manner only with a view to benefit himself and his sons and has not constituted Majlis-e-Ayan and he has been handing over the entire working of the Dawakhana to his sons contrary to the wishes of Wakif Mutawalli and against the hierarchy as set by the Wakf Deed.

.2. The applicant has contended that solely on the basis of the averments made by the plaintiff and without in any way admitting, accepting, conceding the same and without prejudice to any defence, rights, contentions that the defendant No. 1/applicant may have, the suit for removal of defendant No. 1 from the position of Mutawalli of defendant No. 6 as framed by the plaintiff is not maintainable as the same has been filed in clear contravention of the provisions of Section 92 of the CPC. The applicant contended that according to the pleas and contentions of the plaintiff, the appointment of defendant No. 1 as mutawalli of defendant No. 6 is an attempt on the part of the defendants to thwart the charitable object of defendant No. 6 and thus the plaintiff is seeking removal of defendant No. 1 from the position of mutawalli. According to the plaintiff Section 92(2) of the Code of Civil Procedure clearly provides that a suit filed in respect of affairs of an alleged public charity seeking any one of the reliefs enumerated in Section 92(1) of Code of Civil Procedure can only be filed in conformity with the provisions of said section. The relief sought by the plaintiff thus falls within the ambit of Section 92(1)a) and thus the suit does not fulfill the fundamental requirements as contemplated under Section 92 nor the plaintiff has sought leave under Section 92 of the Code of Civil Procedure which is not a procedural formality but is in fact mandatory and goes to the very root of the jurisdiction and, therefore, the suit filed by the plaintiff without obtaining the prior leave of the Court and without being filed on behalf of two persons is barred and the plaint is liable to be rejected. The applicant also

.contended that a special remedy under Section 92 of the Code of Civil Procedure bars the general remedy of an ordinary civil suit and Section 92 is an exhaustive provision in respect of a suit seeking any of the reliefs enumerated in Section 92 (1). In the circumstances, the rejection of the plaint is sought under Order 7 Rule 11(d) of the Code of Civil Procedure.

3. The application is contested by the plaintiff contending inter-alia that the application is not maintainable and has been filed with a view to delay the proceedings. According to the plaintiff the suit seeks to question the very right of defendant No. 1 to hold and assume office who is a mutawalli de son tort. According to the plaintiff none of the matters assailed in the suit are in the realm of public trust of religious charitable character or otherwise breach of trust or for administration of trust. It is also contended that that the present legal proceeding is not for the benefit of the general public but is a private action against a wholly illegal act by defendants No. 1 & 2. It is also contended by the plaintiff that the defendant No. 1/applicant has failed to show as to how suit appears from the statement in the plaint to be barred by any law. It is pleaded that the suit is maintainable and is not barred under Section 92 of the Code of Civil Procedure. The reliefs sought by th