Back
2025 Supreme(Online)(Del) 7058
IN THE HIGH COURT OF DELHI AT NEW DELHI
Anil Kshetarpal, Harish Vaidyanathan Shankar, JJ
NIRMAL LUGANI & ORS. – Appellant
Versus
LATE SH RAM SARUP LUGANI & ORS. – Respondent
FAO(OS) 21/2023
For the Appellants/Petitioners: Mr. Faisal Sherwani, Mr. Aditya Vikram, Mr. Shikher Deep Aggarwal, Ms. Priyal Bapna
For the Respondents: Ms. Ruchira Gupta, Mr. Abhishek Verma, Mr. Ramey Krishan Rana
A suit under Section 92 of the CPC must be initiated by at least two persons with substantial interest in the trust, and this prerequisite cannot be fulfilled post facto by substitution of parties.
Headnote:(A) Delhi High Court Act, 1966 - Section 10; Code of Civil Procedure, 1908 - Sections 92, 104, and Order I Rule 10, Order XXII Rule 10 - Appeal against the order allowing substitution of parties in a suit seeking to institute an action against a public charitable trust. (Paras 1, 4, 24)
(B) Legal representatives in a trust suit - The court held that the application for leave to sue, under Section 92, must be pursued by at least two persons who have substantial interest in the trust, and that a sole applicant cannot initiate the suit. The court emphasized that an application seeking leave remains a proposed action until authorized by the court, stating, "the very Application for permission to institute the Suit would be rendered still-born" if not filed by two or more parties. (Paras 8, 10, 21)
(C) Inherent powers of the court - The court affirmed its authority to invoke Section 151 of the CPC to allow necessary parties to be added before a decision on the application for leave to sue. The requirement for two applicants is a condition precedent, which cannot be circumvented post facto. (Paras 12, 16, 20)
Facts of the case:
The appellants challenged the impugned order allowing the substitution of legal representatives for a deceased plaintiff in a suit concerning a public charitable trust. The fundamental dispute revolved around whether the application for leave to sue was validly constituted after the death of one of the plaintiffs.
Findings of Court:
The appeal was dismissed, confirming the substitution of the plaintiffs was consistent with procedural justice, noting the need for at least two plaintiffs was yet unaddressed at the current stage.
Issues: Whether the substitution of legal representatives fulfills the requirements of Section 92 of the CPC considering the deceased plaintiff's prior application for leave.
Ratio Decidendi: The court articulated that the requirement of having two or more persons with a vested interest in the parameters of trust litigation is non-negotiable, and a single applicant cannot fulfill statutory prerequisites. The court also maintained that procedural laws aim to serve justice rather than obstruct it.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. application for substitution of parties. (Para 2 , 3 , 4) |
| 2. arguments against substitution based on mandatory provisions of section 92. (Para 5 , 6 , 7) |
| 3. discussion on mandatory requirements under section 92 (Para 8 , 21) |
| 4. respondents argue appeal is invalid; relies on prior case law. (Para 9 , 10) |
| 5. court's observations on appeal maintainability. (Para 11 , 12 , 13 , 14) |
| 6. legal standards on requirements under section 92 of cpc. (Para 15 , 16 , 18 , 19) |
| 7. court's analysis on maintainability and inherent powers (Para 17) |
| 8. conclusion affirming the lower court's decision. (Para 24) |
2. The said application was filed by Respondent Nos. 3 and 4 herein under Order I Rule 10 read with Order XXII Rule 10, Order XXII Rule 3 and Section 151 of the CPC seeking substitution of Respondent No. 1 with Respondent Nos. 3 and 4, or in the alternative, impleadment of Respondent Nos. 3 and 4 as necessary and proper parties, along with leave to them to institute the accompanying suit under Section 92 of the CPC against the Appellants.
3. The dispute involved herein is singular insofar as the Appellants contend that the learned Single Judge erred in granting the reliefs sought by the Respondents. For clarity, the reliefs claimed in I.A. No. 8273/2021 are set out below:-
“……..
(i) To bring on record Major Atul Dev and Dr. Neerja Lugani Sethi as co-plaintiffs in substitution of late Mr. Ram Sarup Lugani, or alternatively, to implead them as proper and necessary parties in view of subsequent developments;
(ii) To grant leave to the newly proposed co-plaintiffs to institute the accompanying suit against the defendants under Section 92 of the CPC;
(iii) To grant such other relief as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the plaintiffs and against defendants No. 1 to 6.”
4. By the Impugned Order, Major Atul Dev and Dr. Neerja Lugani Sethi (Respondent Nos. 3 and 4 herein) have been brought on record as Legal Representatives of late Mr. Ram Sarup Lugani.
CONTENTIONS OF THE APPELLANTS:
5. The principal contention advanced by learned counsel for the Appellants is that the Impugned Order is in direct conflict with the ratio laid down by this Court in Rahul Jain & Anr. v. Pradeep Kumar & Ors.4, and it would be urged that the said precedent squarely governs the present case, yet the learned Single Judge failed to apply it in its proper perspective and instead adopted an erroneous interpretation, thereby rendering the Impugned Order unsustainable.
6. Placing strong reliance on Rahul Jain (supra), learned counsel for the Appellants would submit that Section 92 of the CPC prescribes a mandatory precondition for the valid institution of a suit thereunder, namely, that it must be instituted jointly by not less than two persons, and such institution must necessarily be preceded by obtaining the leave of the Court by such persons.
7. It would further be contended by the learned Counsel for the Appellants that, in the present case, one of the two original plaintiffs, late Mr. Ram Sarup Lugani (Respondent No. 1 herein), passed away during the pendency of the application seeking leave under Section 92 of the CPC, and that the demise of one of the original applicants has the effect of fatally undermining the very foundation of the proposed suit, since the statutory requirement of there being at least two applicants or plaintiffs at the inception of the proceedings stands frustrated.
8. On this premise, learned counsel for the Appellants would contend that the suit became incurably defective, as the defect goes to its very root and cannot be cured by substitution or impleadment, and therefore, in view of Rahul Jain (supra), it ought to have been dismissed at the threshold.
CONTENTIONS OF THE RESPONDENTS:
9. Per contra, learned counsel for the Respondents would submit that the present Appeal is barred under Section 104 (1)(ffa) of the CPC, since an appeal pursuant to Section 92 of the CPC lies o
