- (1.) THIS is an appeal against the judgment and decree of the learned District Judge, Etah, dated 27th April, 1971. The suit giving rise to this appeal was filed under Section 92 of the Code of Civil Procedure. It related to the trust created by one Smt. Gomti, widow of Hardeo Prasad in 1909. The relief claimed was for the removal of Sri Brahmadatt, defendant-respondent, who was the Sarbarakar of the trust on the ground that he had mismanaged the temple of Sri Radha Kishan, the subject-matter of the trust. Accounts were also claimed for from him.
(2.) ONE of the defences raised by the defendant-respondent was that the suit was not properly instituted as the sanction granted by the Advocate-General under Section 92 was to five persons while the suit was filed by only four. The learned judge negatived this contention and held that the suit was validly filed. On merits it was held that no act of mismanagement was committed by the defendant and the suit was liable to be dismissed on merits. Aggrieved plaintiff filed the present appeal. The defendant-respondent filed an application before the Hon'ble the Chief Justice for the hearing of the appeal on the preliminary question as to whether the suit was maintainable, having been filed only by four out of the five persons, to whom sanction was granted by the Advocate-General. The preparation of the paper book was dispensed with for the time being. The appeal was accordingly listed for the consideration of the question whether the suit as filed was maintainable. I have heard learned counsel for the parties.
(3.) THE permission granted to file the instant suit is Ext. 2. It has been granted in favour of five persons, namely, Sri Prag Narain, Sri Ram Das, Sri Mithhu Lal, Sri Jhau Lal and Sri Girdhari Lal. It appears that Mithhu Lal died after the grant of permission and before the institution of the suit which accordingly was filed only by four persons, namely, Prag Narain, Ram Das, Jhau Lal and Girdhari. The respondents' contention is that the suit was not maintainable. Learned counsel for the appellant, has urged that the suit could be filed only by the surviving four permission holders.;