Nirmal Lugani & Ors v. Late Sh Ram Sarup Lugani & Ors

Judgment reserved on : 17.09.2025

Judgment pronounced on:

25.09.2025

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FAO(OS) 21/ 2023 & CM APL. 7606/2023

NIRMAL LUGANI & ORS.

. Apelants

Through:

Mr. Faisal Sherwani, Mr.

Ad itya Vikram, Mr. Shikher Dep Agarwal and Ms. Priyal Bapna, Advocates

versus

LATE SH RAM SARUP LUGANI & ORS.

. Respondents

Through:

Ms.

Ruchira Gupta,

Mr. Abhishek Verma and

Mr. Ramey Krishan Rana, Advocates

CORAM:

HON' BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR

J U D G M E N T

HARISH VAIDYANATHAN SHANKAR, J.

¶1The present Apeal, filed under Section 10 of the Delhi High Court Act, 196 1 , read with Section 104 along with Order XLI Ru le 1 of the Code of Civil Procedure, 1908 2 , asails the Order dated

04.01.2023 3 pased by the learned Single Judge of this Court in I.A. No. 8273/2021 in CS (OS) 182/2019, titled "Sh. Ram Sarup Lugani & Anr. v. Nirmal Lugani & Ors. '.

1 Delhi High Court Act

2 CPC

3 Impugned Order

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¶2The said aplication w as filed by Respondent Nos. 3 and 4 herein under Order I Rule 10 read with Order XI Rule 10, Order XI Rule 3 and Section 151 of the CPC seking substitution of Respondent No. 1 with Respondent Nos. 3 and 4, or in the alternative, impleadment of Respond ent Nos. 3 and 4 as necesary and proper parties, along with leave to them to institute the acompanying suit under Section 92 of the CPC against the Apelants.

¶3The dispute involved herein is singular insofar as the Apelants contend that the learned Sin gle Judge ered 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. Nerja Lugani Sethi as co - plaintifs in substitution of late M r. Ram Sarup Lugani, or alternatively, to implead them as proper and necesary parties in view of subsequent developments;

(i) To grant leave to the newly proposed co - plaintifs to institute the acompanying suit against the defendants under Section 92 of

the CPC;

(iii) To grant such other relief as th and proper in the facts and circumstances of the case, in favour of the plaintiffs and against defendants N

¶4By the Impugned Order, Major Atul Dev and Dr. Nerja Lugan i Sethi (Respondent Nos. 3 and 4 herein) have ben brought on record as Legal Representatives of late Mr. Ram Sarup Lugani .

CONTENTIONS OF THE APELANTS :

¶5The principal contention advanced by learned counsel for the Apelants is that the Impugned Order i s in direct conflict with the ratio laid down by this Court in Rahul Jain & Anr. v. Pradep Kumar & Ors . 4 , and it would be urged that the said precedent squarely

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governs the present case, yet the learned Single Judge failed to aply it in its proper perspe ctive and instead adopted an eroneous interpretation, thereby rendering the Impugned Order unsustainable.

¶6Placing strong reliance on Rahul Jain ( supra ), learned counsel for the Apelants would submit that Section 92 of the CPC prescribes a mandatory prec ondition for the valid institution of a suit thereunder, namely , that it must be instituted jointly by not les than two persons, and such institution must necesarily be preceded by obtaining the leave of the Court by such persons.

¶7It would further be con tended by the learned Counsel for the Apelants that, in the present case, one of the two original plaintifs, late Mr. Ram Sarup Lugani ( Respondent No. 1 herein ), pased away during the pendency of the aplication seking leave under Section 92 of the CP C, and that the demise of one of the original aplicants has the efect of fataly undermining the very foundation of the proposed suit, since the statutory requirement of there being at least two aplicants or plaintifs at the inception of the proceding s stands frustrated.

¶8On this premise, learned counsel for the Apelants would contend that the suit became incurably defective, as the defect goes to its very rot and canot be cured by substitution or impleadment, and therefore, in view of Rahul Jain (s upra) , it ought to have ben dismised at the threshold.

CONTENTIONS OF THE RESPONDENT S :

¶9Per contra , learned counsel for the Respondents would submit that the present Apeal is bared under Section 104(1)(fa) of the CPC, since an apeal pursuant to Secti on 92 of the CPC lies only

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against an order refusing leave to institute a suit, and in the present case , Major Atul Dev and Dr. Nerja Lugani Sethi ( Respondent Nos. 3 and 4 herein ) have ben brought on record as the Legal Representatives , so no ocasion ar ises for the Apelants to file the present Apeal.

10.

With respect to the merits of the Apeal, learned counsel for the Respondents would suport the Impugned Order and contend that the learned counsel for the Apelants has misinterpreted the judgment in Ra hul Jain (supra) . Further, she would rely upon the relevant paragraphs of the Impugned Order to demonstrate that the conclusions reached therein are legaly sound and consistent with the law.

ANALYSIS :

1.

We have heard the learned counsel apearing for the p arties at considerable length and have also undertaken a thorough examination of the Impugned Judgment rendered by the learned Single Judge, along with the pleadings and documents placed on record.

12.

With regard to the Respondent' maintain ability of the present apeal, we are of the view that the said contention car ies merit. In the present case, the stage for the apeal has not yet ben reached as the aplication for leave to institute the suit is pending a djudication.

13.

However, i t is wel established that an apeal from a decision of the learned Single Judge exercising ordinary original civil jurisdiction to a Division Bench of this Court is not governed exclusively by the provisions of the CPC. In a series of judgments, it has ben held t hat Section 10 of the Delhi High Court Act asumes significance in determining the scope of such apeals.

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14.

In the present case, the apealed Order permits the impleadment of two persons to the Aray of parties , and in the absence of the same, the underlying premise for filing a Suit under S ection of the CPC

would cease to exist , as without the presence of at least two persons, the very Aplication for permision to institute the Suit would be rendered stil - born. These persons are, therefore, required to be brought on record . Resultantly, since the said Order determines valuable rights of the parties and as held by this Court in Maryam Be Vs. Shuibham Jain 5 , which Judgment relied upon the Judgment of the Hon'ble Supreme Court in Shah Babulal Khimji v. Jay aben D. Kania 6 , and that of the co - ordinate Bench in Gurmauj Saran Baluja Vs. Mrs. Joyce C. Salim & Ors. 7 , and which Judgment also held that impleadment of a party is a valuable right, this Court is of the opinion that the present Apeal is maintainable un der S ection 10 of the Delhi High Court Act.

15.

Turning now to the central controversy involved in this A peal, we consider it apropriate, at the outset, to reproduce the relevant portion of the Impugned Order pased by the learned Single Judge. The relevant extract is set out hereinbelow : —7. Learned counsel placing reliance upon the aforesaid decision submited that the requirements placed by Section 92 are mandatory and consequently since the aplication seking leave to institute the suit is left with onl y one individual on the record, it must be rejected. Learned counsel submited that in Rahul Jain , the Court had clearly held that a fundamental prerequisite as envisaged in Section 92 can neither be rectified nor salvaged by aditional persons being permi ted to join the aplication seking leave. Since the objection which is raised on behalf of the respondents principaly rests on the judgment rendered by the Court in Rahul Jain , the said decision would merit a closer examination.

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¶8The principal questi on which arose for consideration before the Court in Rahul Jain was sumed up in paragraph 1 of the report to be whether two individuals who may have submited an aplication for leave to sue would have to be alive on the date when the petition is filed or whether it would be the date on which the aplication is actualy taken up for consideration which would be relevant and determinative. As would be evident from the recordal of facts in Rahul Jain, the aplication under Section 92 along with the proposed plaint came to be filed on or about 15 September 19. The proposed plaintif No.2 pased away on 16 September 202 and before the aplication for leave to sue could be decided. The aplication for leave apears to have ben granted on 20 February 204 and thus at a time when only one of the aplicants was surviving and remained on the record. The Court while considering the said aplication, however, proceded to pas a conditional order providing that the grant would be subject to any objection that the p roposed defendants may raise with respect to the maintainability of the suit.

¶9The proposed defendants thereafter filed a petition for review of the aforesaid order. While dealing with the said petition, the learned Judge observed as folows: -

—9 . Undo ubtedly and admitedly the present suit is a suit wherein it has ben aleged that the defendants are deliberately violating the conditions of the trust which was created for public purpose and is of charitable nature and a direction has ben sought for ad ministration of such trust. Therefore, the suit clearly fals within the purview of Section 92 of the CPC. The statute has provided the conditions required to be fulfiled for the purpose of institution of the suit. Rule 1 of Order 4 of the CPC mandates th at every suit shal be instituted by presenting a plaint in duplicate to the court or such oficer as is apointed in this behalf. Under rule 2 of Order 4, the particulars of every suit are required to be entered in a bok to be kept for the purpose which is called the register of civil suits.

¶10Section 92 of the Code of Civil Procedure, 1908 contains a prohibition that in order to maintain a suit against the public charity, no suit can be instituted without leave of the court. Therefore, merely filing a proposed plaint acompanied by an aplication under Section 92 seking leave to institute a suit would not amount to institution of the suit within the meaning of the expresion as laid under Rule 1 of Order 4.

¶1In 10 (204) DLT 649 (SC ): 204 (75) DRJ 13 Shiping Corporation of India Ltd. v. Machado Brothers & Ors. , the Apex Court held that the courts have al necesary powers under Section 151 of the Code of Civil Procedure, 1908 to make orders to prevent the abuse of the proces of the court. In this mater, the court was considering an order whereby a suit was dismised on the ground that it had ben rendered infructuous by

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disapearance of the cause of action. The court held that continuance of the suit which had become infructuous by disapeara nce of the cause of action would amount to abuse of proces of court and interest of justice required that the suit should be disposed of as having becoming infructuous. For this purpose, it was held that the court would exercise inherent powers under Sect ion 151 of the Code of Civil Procedure, 1908 to make such an order to prevent the abuse of the proces of the court. The principles noticed above were laid down by the Apex Court in a factual situation which was clearly distinct from the isue which has be en raised before this court and consequently would have no aplication to the mater which is being considered herein.

¶12To the same efect are the principles laid down by the Apex Court in ( 206) 1 SC 75Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr . In this judicial pronouncement, the court held that the requirements relating to a pleading, memorandum of apeal or aplication or petition for relief were procedural and non - compliance thereof should not entail automatic dismisal or rejection unl es the relevant statute or rule so mandates. Procedural defects and iregularities which are curable should not be alowed to defeat substantive rights or to cause injustice. Procedure which is hand maiden to justice, should never be made a tol to deny j ustice or perpetuate injustice by any opresive or punitive use. The Apex Court in this judicial pronouncement also laid down the wel recognised exceptions to this principle which were enumerated thus: –

—(i) where the statute prescribing also prescribes specificaly the consequence of non - compliance;

(i) where the procedural defect is not rectified, even after it is pointed out and due oportunity is given for rectifying it;

(i) where the non - compliance of violation is proved to the deliberate or mischievous;

(iv) where the rectification of defect would afect the case on merits or wil afect the jurisdiction of the court; and

(v) in case of memorandum of apeal, there is complete absence of authority and the apeal is presented with out the knowledge, consent and authority

. So_far as the requirement of the suit under Section 92 being instituted by two or more persons is concerned, the prohibition is to be found in the statute itself . The object and reason for st ipulating that a suit against the public trust would lie at the instance of the Advocate General or two persons or more who must sek leave of the court is to be found in public policy that a trust should not be unecesarily draged into litigation at the

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instance of any disgruntled truste or person. The proposed suit must be at the instance of at least two persons and therefore aplication to sek leave has to be filed by two such persons. The two persons who are desirous of instituting the suit must the refore exist on the date when the aplication under Section 92 seking leave to sue is to be heard.

¶14This statutory mandate finds consideration in several authoritative and binding judicial precedents. It has ben conclusively and repeatedly held that t he suit under Section 92 must be brought by al the persons to whom the sanction of the Advocate General has ben given and a suit instituted by some of them only is not maintainable. In these circumstances, in Narain Lal & Ors. v. Sunder Lal (Dead) & Ors. , 1967 3 SCR , the court had ocasion to consider a case where four persons obtained the consent of the Advocate General of Rajasthan to institute a suit against the respondents under Section 92 of the Code of Civil Procedure, 1908. Shortly thereafter, one of the said four persons died and the suit was instituted by thre survivors. A preliminary isue was taken by the defendants as to whether the suit filed by thre persons, while permision to sue has ben given to four, is maintainable? It was held by the Supreme Court that an authority to sue given to several persons is joint authority and must be exercised by al jointly. A suit by some of them is not competent. When sanction in the present case was given to four persons arid one of them died before the institution of the suit, a suit by the remaining thre was incompetent. Therefore sanction must be obtained afresh by the survivors for the institution of the suit.

¶16Therefore, in the light of the principles laid down in these judgments, it is apa rent that defect in the aplication for leave to sue in the nature of the number of persons or parties canot be permited to be cured or changed in the proposed suit by way of an aplication seking impleadment of the aplicant as a proposed plaintif or by ading defendants. Such a defect goes to the rot of the mater .

¶20Therefore, so far an an aplication seking leave to institute the suit under Section 92 is concerned, the aplicant have to satisfy the court at the time of consideration that they h ave substantial interest in the management of the trust and this satisfaction has to be recorded by the court at the time of adjudicating upon the aplication seking the leave to institute the suit. In the event that one of the two aplicant has expired b efore the aplication is considered, it is evident that the court has ocasion only to consider the interest of the one surviving aplicant before it in the afairs of the trust. Therefore, the basic condition precedent in order to institute the suit again st the trust is not satisfied. Such a single person canot be given leave to sue and the same is contrary to the specific mandate of the

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statute. The efect in the permision, if granted to the sole aplicant canot be cured by way of an aplication under Order 1 Rule 10 of the Code of Civil Procedure, 1908 which comes into play, only after institution of the suit. This is also for the reason that there has ben no consideration of the interest of the proposed plaintif who seks to be aded as a plaintif in the suit which stands registered ."

¶10The learned Judge in Rahul Jain sought to butres the conclusions which ultimately came to be recorded drawing an analogy from Section 69(2) of the Indian Partnership Act, 1932 , This would be evident from the fol lowing observations as apearing in paragraphs 2 and 23 of the report and which are extracted herein below: -

—22 . In (194) 1 ArbLR 385 Kelson Construction v. Versha Spining Mils Ltd. & Anr., the court held thus: –

—6. In Lonkaran Sethia etc. v. Mr. Ivan E. John and others etc., AIR 197 SC 36 the Hon'ble Supreme Court has held that the provisions of Section 69 are mandatory in character and its efect is to tender suit by a plaintif in respect of a right vested in him or acquired by him under a co ntract which he entered into as a partner of an unregistered firm, whether existing or disolved, void. What is material is that on the date of institution of the suit the partnership should have ben registered failing that the suit would fail. In Shankar Housing Corporation v. Smt. Mohan Devi and Others, AIR 1978 Delhi 25, a Division Bench of this Court had also taken the folowing view:

—The point of time contemplated in at the time of the institution of the suit. That is to today, the firm must be a registered firm by the date of the institution of the suit and the person suing (i.e., al the partners) must have ben shown in the Register of Firms as partners of the of the institution of the suit.

Sub - section (1) and

(2) of Section 69 are substantives provisions intended to discourage the non - registration of firms. The provision in Section 69(2) is mandatory and makes the registration of a firm a condition psprecedent to the institution of a suit of the nature mentione d in it."

Similarly another single Bench of this Court in the case of Kavita Trehan and others v. Balsara Hygienic Products Ltd., AIR 192 Delhi 92 , had held that a suit filed by a partner of a firm which is not registered on the date of the filing of the suit would be hit by the provisions of Section 69(2) of the Indian Partnership Act and as such it is not

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maintainable and is liable to be dismised. In the case of M/s. Shreram Finance Corporation v. Yasin Khan and others, AIR 1989 SC 1769 , the Hon'ble S upreme Court had gone to the extent of laying down that even if the suit is instituted by a registered firm, but change in the constitution of the firm had taken place whereby one new partner had ben aded and two had retired and a minor being admited to the benefits of the firm, the suit was filed by the firm after such change in the constitution but the change was not notified to the Registrar of Firms, the suit was not maintainable as the curent partners were not shown in the Regis

¶23In the pronouncement of this court in 194 1 ArbLR 385 Kelson Construction v. Versha Spining Mils Ltd. & Anr ., the court held that if a suit on the date of its institution is not maintainable, there was nothing in the language of the section which by any implication has the efect of validating the same plaint with efect from the date of the registration of the partnership. It was further laid down that while it is the duty of the court to administer justice acording to the principles of equity and god conscience, the courts are not suposed to circumvent or overlok the mandatory provisions of statute. When a statute does not permit any suit to be brought, contrary to its specific provisions, the courts canot by the device of interpretation overcome s uch legal bar."

¶1The Court ultimately came to record and arive at the folowing conclusions: -

—24. In the instant case, a requiremen Code of Civil Procedure canot be held to be a merely technical bar, non - compliance whereof is only an iregularity. In my view, the prohibition goes to the rot of the jurisdiction of the court and finds its basis in the spirit, intendment and purpose for which Section 92 was enacted. Failure to bring the aplication by two persons who have an interest in the afairs of the trust on the date the aplication is taken up for consideration is a sine qua non for the maintainability of the aplication and the institution of the suit. The requirement of Section 92 of the Code of Civil Procedure, 1908 canot be compared to the omision to sign or verify the plaint which is considered iregularity and technical defect inasmuch as the same entails satisfaction of the court on factual maters. In the instant case, the aplicants have to satisfy the court t hat they have a valid and substantial interest in the afairs of the trust when the aplication under Section 92 is taken up for consideration or is alowed.

¶25For this reason, the omision canot be suplied by making an aplication under Order 1 Rule 10 of the Code of Civil

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Procedure. 1908. Undoubtedly, the two persons who make the aplication must have a substantial interest in the afairs of the trust when the aplication is filed and continue to do so when the aplication is taken up for considerati on . This court had held that the provisions of Order 2 of the Code of Civil Procedure, 1908 were not aplicable to the aplication under Section 92 of the Code of Civil Procedure, 1908. The proposed plaintif on whose behalf the aplication being IA 6040/ 204 has ben filed was not before the court on 20th April, 204 when 1A 9572/19 was taken up for hearing and was alowed. Secondly, no leave to institute the suit has ben granted in favour of the proposed plaintif and consequently it canot be aded a s a party ."

The review petition consequently came to be alowed and the order of 20 April 204 recaled.

¶12A consideration of the principles which came to be enunciated and recognized in Rahul Jain

would establish that the Court fundamentaly held tha t on the date when an aplication seking leave to sue is taken up for consideration, the record must reflect that it is suported by not les than two individuals in light of the mandatory provisions of Section 92. This is evident from the plain language employed in that provision which uses t two or more persons having an interest. ".

¶13Undoubtedly, a Section 92 suit canot be recognized as having come to be instituted unles the aplication for grant of leave of the Court is granted. Ti l that time, the suit would remain a proposed action with respect to the afairs of a public charitable trust. Evidently, in Rahul Jain on the date when leave was granted by the Court, there was only one individual who remained on the record of the aplic ation seking leave. It is in that backdrop that the Court came to conclude that the order granting leave was unsustainable.

¶14In the considered opinion of this Court, Rahul Jain also corectly holds that a fundamental defect from which an aplication for leave may sufer canot be rectified after leave has ben granted. The learned Judge corectly came to record that the fact that the aplication seking leave was being pursued by only one individual would not fal in the category of a procedural defec t or iregularity which could be cured. Insofar as the provisions of Section 69(2) of the 1932 Act are concerned, it may be noted that a suit which is contemplated under that provision, does not folow the two - tier statutory procedure which is constructed and put in place by Section

¶92In light of the expres language of Section 69(2) of the 1932 Act, a registered partnership must be in existence on the date of institution of the suit itself. As distinguished from the position which would obtain in the con text of Section 69(2) suits, a suit which is sought to be brought in terms of Section 92 of the Code canot be said to have

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ben instituted in acordance with law unles leave of the Court has ben previously obtained.

¶15The position which thus emerges from the aforesaid discusion would be that a suit under Section 92 of the Code would be recognized as having ben instituted only after the aplication seking leave of the Court has ben obtained and granted. Til such time as that aplication is alowed and the Court grants leave, the suit remains a proposed action in respect of a trust. It is the grant of leave by the Court on an aplication prefered for that purpose by two or more persons that leads to the registration of the suit. It is in that backd rop that the decision in Rahul Jain is liable to be apreciated and understod. Bearing in mind the expres provisions of Section 92 of the Code, Rahul Jain corectly holds that at least two persons must be in existence on the date when the aplication for leave is either taken up for consideration or on the date when leave is granted. The decision clearly holds that it is either of the two aforenoted dates which would be determinate. Rahul Jain also rightly found that a defect which relates to the minimum number of aplicants who must be present before the Court on the pivotal date canot be cured by way of impleadment after leave has ben granted.

¶16To the extent of what stands recorded hereinabove, the instant aplication clearly does not raise an insu rmountable obstacle since the aplicants are neither seking impleadment after leave has ben granted nor is it one which has ben instituted after the Court may have granted permision to a particular set of proposed plaintifs. However, while learned cou nsel for the respondent may be corect in his submision that the provisions of Order I Rule 10 or for that mater Order XI Rule 3 of the Code would not be aplicable at this stage since, strictly speaking, a suit is yet to be registered and instituted, the Court finds no justifiable ground to refuse the prayers made in the instant aplication for the folowing reasons.

¶17It must and at the outset be remphasized that the proposed aplicants crave liberty of the Court to join the pending aplication fo r grant of leave. This is therefore not a case where parties are proposing to join the lis after leave may have ben granted or seking impleadment in procedings post the grant of permision by the Court in terms of Section 92. Further, even if the Court were to grant the prayers as made in the instant aplication, it would not amount to the Court acording leave to sue. That would be an isue which would survive for consideration once the Court takes up I.A No. 4760/2019.

¶18The Court while ariving at the aforesaid conclusion also bears in mind that the Code, as has ben repeatedly held, is not liable to be viewed as exhaustively providing for the infinite contingencies which may arise in the course of civil litigation. It is perhaps to take care of the unpredictable vagaries of litigation that the Legislature in its inherent wisdom preserved and recognised the inherent powers of the Court by insertion of Section 151. Section 151 and its scope was

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lucidly explained by a Ful Bench of the Alahabad High C ourt in Raj Narain Saxena vs. Bhim Sen and Ors . in the folowing terms: -

—4, I may also deal at this stage wi ordinary suit. Under Sec. 6 of the Code of Civil Procedure no court has jurisdiction over a suit, the amount or value of th e subject - mater of which exceds its pecuniary limits. Sec. 15 requires every suit to be instituted in the court of the lowest grade competent to try it. Under Sec. 26, every suit must be instituted by the presentation of a plaint or as laid down in Order

¶3Sec. 6 of the Court - fes Act provides that no plaint or aplication which must be charged with court - fees —shall be filed, exhibited or recorded in any Court ., unles in respect of such document there be paid a fe of an amount not les than that " mentioned in the schedules attache the Limitation Act lays down that —eve aplication made, after the period of limitation prescribed therefor by the first schedule shal be dismised, although limitati on has not been set up as a defenc explanation, a suit is instituted in an ordinary case when the plaint is presented to the proper oficer and in the case of a pauper, when his aplication for permision to sue as a pauper is made. The rules regarding plaints are contained id Or. 7 of the Code of Civil Procedure. A plaint must contain, inter alia, the facts constituting the cause of action and when it arose, the fact showing that the court has jurisdiction, the relief and a statement of the value of the subject mater of the suit for the purposes of jurisdiction and of court - fes. If the facts show that the cause of action arose so early that the period of limitation for a suit on its basis expired before the plaint was presented it is t he duty of the court itself to reject the plaint at once under Sec. 3 of the Limitation Act. If the suit is bared by time it has no jurisdiction to take any further action. Since in the case of a pauper suit it is filed when an aplication for permision is presented under Order 3, Rule 1 it can, and ought to, be rejected straightaway if the suit was on the date of its presentation bared by time. Under Order 7, Rule 10 a plaint —shall at returned to be presented to the Court in w hich the suit should have been instituted." Since a pauper suit is instituted by presenting an aplication for permision and since that aplication itself is demed to be a plaint (though only on its being granted) some High Courts have held that the apl ication can itself be returned to be presented to the court in which it should have ben instituted. If it be said that Rule 10 of Order 7 can be aplied only after an aplication for permision has matured into a plaint under Rule 8 of Order 3 and that s o long as it has not matured into a plaint it canot be treated as a plaint and, therefore, canot be returned for presentation to the competent court, the only consequence would be that the

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aplication wil have to be rejected . The provision in Rule 10 of

Order 7 is a concesion to the plaintif; instead of the plaint being rejected it is alowed to be returned to him so that he may present it to the competent court. If Rule 10 did not exist the court would be bound to reject the plaint. Every authority is

bound to se that it has the power which it is asked to exercise. A statutory authority has only these powers which the statute has confered upon it and has no jurisdiction to exercise any other power. It is not open to the parties to confer any power up on it and it does not become authorised to exercise a power merely because a party aplies to it for its exercise. If it canot exercise it, it must refuse to exercise it. So it is for it to determine before it exercises the power that it poseses it. No statutory provision is required for its doing so it is its inherent jurisdiction. Therefore, if a court has no power to entertain a suit it must refuse to entertain it and reject the plaint (in the absence of a provision authorising it to return it for pre sentation to the competent court). If Rule 10 of Order 7 does not _aply to an aplication for permision the aplication must be rejected if the court to which it is presented has no jurisdiction over the suit . Rule 1, requires a plaint to be rejected wh en it does not disclose a cause of action, when the relief claimed is undervalued and the plaintif has failed to corect it within the time fixed by the court, when it is properly valued and the plaint is not suficiently stamped with the court - fe or whe n the suit apears from the statements in the plaint itself to be bared by any law. Because of the provision in Sec. 3 of the Limitation Act and the provision in rule 10 there is no provision about a plaint being rejected on the ground that the suit is ba red by time or that the plaint is presented in a court having no jurisdiction. Only a plaint is to be rejected when the suit apears from the statement in itself to be bared by any law but the fact that this Court has aded an explanation to Rule 5 of Or der 3, which deals with rejection of an aplication for permision, does not mean that in its view an aplication for permision is a plaint. The object behind the explanation apears to make it clear that being bared by any law does not amount to absenc e of a cause action within the meaning of Cl. (d) of Rule 5. There is no mention in Rule 5 that an aplication for permision can be rejected on the ground that the court has no jurisdiction because every plaint, apeal or aplication is liable to be rejec ted on the ground of want of jurisdiction as already explained. No statutory provision is required at al for an authority's refusing to exercise jurisdiction not vested in it; a statutory provision would be required only if it had not to reject a plaint, apeal, aplication etc. on the ground of want of jurisdiction but to return it. Rule 5 does not contain an authority for rejecting an aplication for permision on the ground that it is bared by time because Sec. 3 of the Limitation Act contains the requ ired provision. Moreover,

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there is Sec. 151 in the Code preserving the inherent power of the court —to make such orders as may of justice or to prevent abuse of the expresly authorises a court to make such orders as it considers necesary for the ends of justice or prevention of abuse of the proces of the court. A court can make any order even though not provided in the Code, the only condition being that it is necesary for the ends of justice or prev ention of abuse of the proces of the court. The provisions of the Code are generaly meant to serve the ends of justice but in their very nature they canot reach al posible circumstances that can exist and there are bound to be no provisions dealing wi th some of the circumstances. Also some of the provisions may result in abuse of the proces of the court. Consequently every court has the inherent power, recognised by Sec. 151, to make any orders that it considers necesary for the ends of justice or pr eventing abuse of the proces of the court. The Code canot and does not even purport to, be exhaustive and hence the residuary power has ben confered upon the court through recognition of its inherent power. With this residuary power the Code is now exh austive; for circumstances which are likely to exist frequently or can be contemplated there are expres provisions; for others there is the inherent power of the court. The existence of the inherent power pre - suposes that any order that is not prohibited is within the competence of the court. Any order not prohibited by the Code can be made by a court; if it is expresly provided for it is made by virtue of that authority and if it is not expresly provided for it is made because of its being necesary fo r the ends of justice or prevention of abuse of the proces of the court. I respectfuly adopt the statement of Mahmod, J. in Narsingh Das v. Mangal Dubey [LL.R. 5 Alld. 163.] that —Court principle that every procedure is to be ta ken as prohibited unles it is expresly provided for by the Code, but on the converse principle that every procedure is to be understod as permisible till it is shown to be prohibited by t condition that the procedure that is not provided for expresly by the Code must be justified on the ground of the ends of justice or of prevention of abuse _of the proces of the cour t. In Gupteshwar Misir v. Chaturanand Misir [A.LR. 1950 Patna

309.] Sinha, J. with whom Rai, J. concured, said at page 310 that —it is true the Code is not exha exhaustive in matters specifically pr exhaustive is the Code minus Sec. 151; since Sec. 151 contains the residuary power it necesarily folows that the power confered by the remaining provisions is not exhaustive. It is also not corect to say that the Code is exhaustive in maters specificaly provided for because even in respect of such maters the court is left fre to make a diferent order if it is necesary for the ends of justice or prevention of abuse of the proces of

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the court. Consequently, rule 5, canot be said to be exhaustive of the circumstances in which an aplication for permision can be rejected; it can be rejected in other circums tances to secure the ends of justice or prevent abuse of the proces of the court and rejecting an aplication on the ground that the court has no jurisdiction over it is rejecting it for the ends of justice and preventing abuse of the proces of the court . If the court has no jurisdiction it would be abuse of its proces if it is made to proced on it. The only just order that can be pased on such an aplication is that of rejection. It is unusual for a legislature, when vesting a certain power in a parti cular authority, to enact an expres provision that an authority other than it must reject an aplication for its exercise (on the ground of want of jurisdiction); obviously this is because the authority to which an aplication is made has inherent jurisdi ction to refuse to exercise a power not vested in it. I respectfuly agre with what was said in Nanda Kishore Singh v. Ram Golam Sahu [1.L.R. 40 Cal. 95 at p. 960.] . In Shamu Pater v. Abdul Kadir Ravuthan [L.R. 39 Indian Apeals 218 at page 23.] it wa s pointed out by his Lordship Amer Ali that —every court inherent jurisdiction to take cognizance of questions which cut at the rot of the subject mater of controversy betwen the parties" even in the absence of any pr e Code."

¶19The Ful Bench of that Court in Raj Narain Saxena drew sustenance from the principle expounded by the learned Justice Mahmod who had held that courts must not proced on the premise that every procedure is to be understod as prohibited unle s expresly or particularly granted but in fact proced on the converse principle of every procedure being sanctioned in law unles shown and established to the contrary.

¶20The Court is thus of the considered opinion that the grant of the prayers as ma de in the instant aplication would not fal foul of any provision of the Code. No provision of the Code, either expresly or impliedly, prohibits persons from joining an aplication for leave to sue. Al that Section 92 mandates is that the aplication se eking leave must be made by at least two persons. For the purposes of determining whether the aforesaid prescription stands satisfied, the Court must ensure that the statutorily prescribed minimum number of aplicants exist on the record on the date when t he said aplication is taken up for consideration or permision to sue is granted.

¶21Neither Rahul Jain nor any other decision rendered either by this Court or any other High Court was shown to hold that a Court lacks the power to permit persons joining an aplication which seks leave to institute a suit against a trust. Rahul Jain is merely an authority for the proposition that on the date when the aplication seking leave to sue is taken up for consideration or permision granted, there must be in ex istence before the Court two or more persons who pray for and

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sek that relief. Rahul Jain also constitutes an authority for the principle that a fundamental flaw which may be found to exist on the record on the date when leave is granted is not curable by subsequent impleadment of parties. The Court thus comes to the firm conclusion that the injuncts as propounded in Rahul Jain do not stand atracted in the facts and circumstances of the present case.

¶2The Court further finds that the exercise of power under Section 151 of the Code clearly apears to be permisible in law in absence of an expres provision in the Code prohibiting the adoption of the measure propounded by the Court in exercise of it inherent powers. More fundamentaly, the facts of the pr esent case clearly justify the invocation of inherent powers in order to ensure that the ends of justice are subserved and the aserted silence of the Code does not result in prejudice being caused. The situation which arises clearly warants the invocatio n of the inherent powers of the Court in order to ensure that the interest of the lis is not rendered a casualty on the altar of a technical and pedantic interpretation of a procedural statute.

¶23Acordingly, the instant aplication is alowed. The Cour t consequently permits Major Atul Dev and Dr. Nerja Lugani Sethi to join as aplicants in LA No. 4760/2019. Al contentions of respective parties insofar as they pertain to the merits of the aforesaid aplication are kept open."

16.

Upon a careful scrutiny a nd deliberation of the Impugned Order, we find ourselves in agrement with the conclusion reached by the learned Single Judge, inasmuch as no eror can be discerned therein. The learned Single Judge has rightly held that the suit had merely ben filed and the aplication seking leave to institute the same was stil pending. At such a stage, it could not be said that the mandatory requirements of Section 92 of the CPC stod violated.

17.

Section 92 of the CPC, in explicit terms, mandates that two or more person s having an interest in the trust must sek leave of the Court to institute a suit. Admitedly, on the date when the aplication in question came to be filed and decided , the aplication for leave to institute the Suit was stil pending consideration.

18.

Whil e alowing the impleadment, the learned Single Judge corectly distinguished the reliance placed on Rahul Jain (supra) by the Respondent, noting that the factual matrix therein was entirely

1 of * IN THE HIGH COURT OF DELHI AT NEW DELHI %