JUDGMENT

The petitioner is the defendant Trust in the suit, O.S.No.488/2022, pending before the Additional Munsiff Court-I, Ernakulam. Petitioner is aggrieved by Exts.P10 and P11 orders. Ext.P10 rejected a challenge posed by the petitioner as regards the maintainability of the suit; and Ext.P11 allowed Ext.P6 application for issuance of a commission appointing a Chartered Accountant for ascertaining certain matters pertaining to the accounts of the Trust.

2. Heard the learned counsel for the petitioner and the respondent.

3. As regards Ext.P10 order, learned counsel for the petitioner submits that the defendant Trust being a public charity, the suit ought to have been instituted under Section 92 of the Code of Civil Procedure (‘the Code’, in short), which is maintainable only before the District Court. The instant suit filed before the Munsiff Court is therefore not maintainable. It was also urged that an earlier suit preferred by the sister-in-law of the present respondent, seeking the self-same reliefs was dismissed as not maintainable, harping on Section 92 of the Code. According to the learned counsel, a similar course is liable to be followed.

4. As regards Ext.P11 order, it was pointed out that the first two points sought to be ascertained in Ext.P7 application pertains to the period prior to which the respondent herein assumed office as Treasurer. Therefore, the said matters are not required to be ascertained, within the scope of the suit instituted. As regards the rest of the points, learned counsel would submit that the accounts have been audited and reports have been approved in the General Body Meeting of the petitioner Trust. Therefore, a fresh audit by another Chartered Accountant is not warranted at all.

5. Per contra, these submissions were seriously refuted by the learned counsel for the respondent/plaintiff. As regards Ext.P10, it was pointed out that the relief sought for would not come within the purview of any of the reliefs referred to in Section 92 of the Code and hence, the suit as framed is quite maintainable. As regards Ext.P11, learned counsel would submit that the ascertainment of point nos.1 and 2 is relevant and required, to know the opening balance at the time when the respondent/plaintiff took charge. As regards the rest of the points, learned counsel would maintain that the same is quite necessary, since the books of accounts have been produced by the respondent/plaintiff before the court below. It was further submitted that, once the books of accounts goes into the hands of the defendant/petitioner Trust, the respondent/plaintiff will find it difficult to substantiate his claim, which pertains to his removal from the office of the Treasurer of the petitioner Trust.

6. Having heard the learned counsel appearing on both sides, this Court finds that Ext.P10 is legal and no infirmity can be attached to the same. This Court notice that merely because the defendant is a public charity, the suit will not automatically come within the purview of Section 92 of the Code. There should be an allegation with respect to breach of any express or constructive Trust, or there should be a situation where a direction of the Court is necessary for the administration of such Trust. The relief sought for should be one among those specified in Clauses (a) to (h) of Section 92(1) of the Code. In the instant case, the suit challenges the removal of the respondent/plaintiff from the office of the Treasurer of the defendant/petitioner Trust. A decision to that effect is taken by the Managing Committee on 01.05.2022. The respondent/plaintiff only seeks a declaration that such decision of the Managing Committee is illegal and violative of the provisions of the bye-laws, especially Clause 26 thereof. The second relief sought for is consequential in nature, which is one for a permanent prohibitory injunction. Inasmuch as the ingredients of Section 92 are not made out, having regard to the challenge made in the subject suit, as