SHAM LAL SARAF AND ANOTHER Vs. YOGIRAJ SHRI SWAMI SOMANAND AND OTHERS

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 19 -11 -1968 the learned District Judge, Srinagar granting leave to the plaintiff respondent to institute suit under Section 2 of the Religious Endowment Act of 1977.

(2.) LEARNED counsel for the petitioner has submitted that the order is contrary to law and not in accordance with the spirit of the Religious Endowment Act, (hereinafter called 'the Act'). The lower court did not issue any process against the petitioners and other respondents and no preliminary enquiry was conducted in order to ascertain whether there was a prima facie case made out for granting leave to file the suit. The court of District Judge passed the order behind the back of the petitioners and without applying its mind to the petition. The application seeking leave to file the suit did not reveal any explicit grounds on which permission could be given and there was no specific allegations made against definite number of persons who according to the respondent constituted the trustees of the said shrine. Insinuation without any substantial grounds against the distinguished and reputed persons of integrity have been made for which there were no basis. The plaintiff respondent No. 1 did not belong to the State of Jammu and Kashmir and was not an interested person within the meaning of Section 2 of the Act It is further submitted that the impugned order be vacated and the application seeking permission be dismissed.

(3.) NOW Section 2 of the Act provides that any person or persons interested in any religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the civil court the trustees manager or superintendent of such religious establishment for any misfeasance, breach of trust or neglect of duty committed by such trustee, manager or superintendent in respect of the trusts vested in, and the civil court may make directions as given in the section itself. But before instituting a suit under this section permission to institute the suit is to be obtained under Sec. 6 of the Act. That section provides that no suit shall be entertained under the Act without a preliminary application being first made to the court for leave to institute such suit. The court on the perusal of the application, shall determine whether there are sufficient prima facie grounds for institution of a suit, and if in the judgment of the court there are such grounds, leave shall be given for its institution. The order under revision is assailed on the grounds that the District Judge could not grant leave to institute the suit inasmuch as the essential requisites for filing the suit under Section 2 did not exist and that no preliminary enquiry was held.