- (1.) THIS appeal raises a rather important question as to the applicability of the principle of res judicata. The trial Court held that the suit which it was considering was barred by res judicata and dismissed the suit, and the plaintiffs have come on this appeal.
(2.) THE suit that was held to be barred was a suit filed under O. 1 R. 8 of the Civil Procedure Code, and the plaintiffs represented the Hindu community of Bombay. The suit was for a declaration that the members of the Hindu Community had acquired vested rights to use the Mumbadevi Tank for having purificatory baths and to use the embankments thereof for performing religious, obsequial and other ceremonies. The suit was filed against the defendants who were the purchasers from the defendants in the earlier suit, being suit No. 438 of 1934. That suit was filed by the plaintiffs as relators under S. 92 of the Civil Procedure Code and in that suit the plaintiffs alleged that there was a dedication by one Putlibai in 1776 in respect of the very property which is the subject matter of the present suit, and by reason of that dedication the plaintiffs claimed that the Hindu community had the same rights which they asserted in the present suit. The contention of the defendants, on the other hand, was that they were the absolute owners of the property, claiming their title from Putlibai, and that there was no dedication, no trust and no rights in the Hindu community. That suit ended in a consent decree, and, as the minutes of the learned Judge of the 23rd March, 1939 when the consent decree was passed show, the Advocate General appeared before the learned Judge Mr. Justice B. J. Wadia and stated to him that he had consulted the members of the Hindu public from time to time in reference to the proposed consent terms and had satisfied himself that those met generally with the approval of the members of the Hindu Community. He further stated that he had considered the terms carefully and considered them for the benefit of the charity. He also stated that the defendants had acted very generously in the matter for the charity in suit. " On this statement being made the learned Judge passed a consent decree and in substance the consent decree, to the extent that we are concerned for the purpose of this appeal, set apart a part of the Mumbadevi Tank of the area of 3,000 square yards and in respect of this area Trustees were appointed and a scheme was sanctioned. There was a declaration that with regard to the rest of the property in suit the defendants were the absolute owners. There was also a provision that in the event of the Municipality insisting upon the Tank being filled up, the Tank could be sold by the Trustees and the sale proceeds were to be held upon Trusts which were mentioned in the consent decree. This contingency in fact came about recently when in 1954 a suit had to be filed with the consent of the Charity Commissioner in the City Civil Court and the Trustees obtained the permission of the Court to sell the portion, of the Tank which had to be filled up under requisition from the Municipality pursuant to the provisions of the consent decree. The question that has been agitated at the Bar is whether this consent decree dated the 23rd March, 1939 constitutes a bar to the filing of the present suit under S. 11 of the Civil Procedure Code or principles cognate to the principle laid down in that section.
(3.) THE first contention put forward by Mr. Laud on behalf of the plaintiffs is that the original suit No. 438 of 1934, although it purported to be a suit under S. 92, was not really a suit under that section, and therefore in arriving at the consent decree the only parties that were bound by that decree were the plaintiffs in that suit on the record and not the Hindu community, and it is urged that inasmuch as the present suit is filed under O. 1 R. 8 on behalf of the Hindu community, the Hindu community is not barred from proceeding with this suit because of the decision in the earlier suit. We must therefore consider what is the nature of a suit under S. 92 and whether suit No. 438 of 1934 satisfies the conditions laid down in S. 92. Section 92 presupposes the existence of a trust created for public purposes of a charitable or religious nature. It! is clear that it is not necessary, in order that a suit could be filed under S. 92, that the trust must be admitted. The plaintiff must come to the Court alleging that there is a public charitable trust and if that trust is disputed the Court will inquire into the matter and decide whether in fact there is such a public trust or not. Section 92 also requires that it should be filed for the purpose of obtaining the specific reliefs mentioned in S. 92, and the reliefs are set out in that section. The Court has no jurisdiction to grant any relief in a suit filed under S. 92 other than the reliefs mentioned in that section, and it is perfectly true that the bar of res judicata can only apply to a subsequent representative suit provided the earlier suit, if filed under S. 92, has been properly filed for obtaining the necessary reliefs. When we look at suit No. 438 of 1934 there is a clear averment that there is a public charitable trust created by Putlibai and it is in respect of this trust that certain reliefs are sought. The reliefs sought are the reliefs mentioned in S. 92 ? relief with regard to accounts, relief for appointment of trustees, and relief with regard to the framing of a scheme. But what is pointed out is that the very first relief is a relief which is outside the ambit of section 92 and that relief is a declaration sought that the properties in suit are public charitable trust properties dedicated for the purposes of religious and charitable nature for the use and benefit of the Hindus and that the defendants have no interest in the said trust properties. It is said that a declaratory relief of this character cannot fall within the ambit of section 92. It is perfectly true that a suit for a declaration that a property is impressed with a trust which is a public charitable, trust does not fall within the purview of S. 92. It was so held by the Privy Council in Abdur Rahim v. Alin Mahomed Barkat Ali, 55 Ind App 96: (AIR 1928 PC 16 ). But every suit which asks for a declaration is not necessarily a declaratory suit in the strict sense of the term. We in this Court are familiar with hundreds of plaints where declaratory reliefs are asked for as a matter of course when really no declaratory relief is required, nor would the Court grant a declaratory relief. When we look at the plaint in suit No. 438 of 1934, it is clear that all the reliefs sought by the plaintiffs, which as already pointed out fall within the ambit of S. 92, could have been granted without the plaintiffs asking for a declaration. If the very basis of a suit under S. 92 is that there has to be a public charitable trust before any relief could be granted by the Court, then a declaration to that effect seems to be unnecessary and only a surplusage. Therefore, in our opinion, the declaration sought by the plaintiffs in suit No. 438 of 1934 was either unnecessary or was merely incidental to their obtaining the necessary reliefs under S. 92. Therefore, it could not be said of this suit that by reason of the fact that a declaration with regard to the properties being dedicated for purposes of religious and charitable nature was sought, it changed the nature of the suit and the suit ceased to be a representative suit under S. 92.;