A suit under Section 92 CPC requires clear pleadings establishing the existence of a trust; absence of such pleadings is fatal to the case.

JUDGMENT

Dated this the 9^th day of October, 2024

The respondents in this CRP had filed I.A No. 391 of 2015 in unnumbered O.S…. of 2015 under Section 92 read with Section 151 of the C.P.C seeking leave before the Court for instituting a suit. The application was filed contending that a clarification is required with respect to the membership in the society and conduct of election. A relief of mandatory injunction is also sought to issue membership to all adult Hindu believers living in the sphere of activity and a prohibitory injunction restraining the defendants from announcing the date of the election.

2. The petitioners herein filed an objection to the said petition, contending that the Court had no jurisdiction to entertain the case. He relied on Section 25 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (for short ‘the Act, 1955’). He contended that the suit cannot be filed under Section 92 C.P.C. It should have been filed under of the Act, 1955. The learned Sub Judge heard the plaintiffs and defendants and held that the leave is to be granted to institute a suit. Aggrieved by the said order, the defendants have come up with this CRP under Section 115 of C.P.C.

3. The learned Counsel for the petitioners, Sri.P.B Krishnan, argued that in order to file a petition under Section 92 CPC, there should be a pleading to the effect that there is a Trust created for public purpose for charitable in nature. He argued that perusing the entire plaint will not show that there was a pleading to the effect that there is a private or public trust. The entire pleading of the plaintiff would show that there is only a dispute between the plaintiff and the defendants with respect to the scheme and the issuance of the membership for the conduct of the election. He relied on a judgment of this Court in Abhaya and Others v. J.A. Raheem ( 2005 KHC 812 ) and contended that this Court has already held that in a suit under CPC, there should be a pleading that there is a Trust either public or private and special influence of the Court is required for setting a scheme for management of trust properties. He relied on Paragraphs Nos.14 to 16 of the judgment, which read as follows:

“14. A comparison of S.25 of the Act, Xll of 1955 and S.92 of C.P. Code shows that the reliefs provided under S.25 of the Act and under S.92 of the C.P. Code are similar. The suit under S.25 of the Act is also to be filed before the District Court. The main difference is that to file a suit under S.25 of the Act a minimum 10% of the members of the Society must join together as plaintiffs. But they need not obtain any permission as contemplated under S.92 of the C.P Code. The minimum number of 10% of the members is insisted to see that the Society is not unnecessarily dragged to Court of law. The members of the Society cannot be allowed to circumvent that provision by making an allegation that the Society is a Trust.

15. The learned counsel appearing for the contesting respondents has argued that when there are averments in the petition regarding the existence of a trust, the Court is bound to grant the permission sought for and the Court cannot consider whether the allegation regarding the existence of trust is true or not. It is argued that that is a matter to be decided after taking evidence.

16. It is true that it is the allegation in the plaint that determines the jurisdiction of the Court under S.92 of C.P Code. If a breach of trust is alleged in the plaint, it is sufficient to confer jurisdiction to the Court. But, when the very existence of a trust of any kind is denied, the Court must look into the pleadings and the documents produced by the plaintiffs to see whether there is any material to show a prima facie case of existence of the trust. Of course, if the contention is that there is no public trust but only a private trust, a decision as to whether the trust is public or private can be taken only after taking evidenc