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Revision Application No. 48 of 1983, decided on 28th December, 1986.

‑‑‑Ss. 3 & 7‑‑Management/Administration of trust property Dispute between trustees‑‑Powers of Court to issue directions‑‑District Judge is empowered to issue directions to trustees for furnishing particulars as to nature, object, subject‑matter of the trust and income belonging thereto‑‑Such Court can also direct examination and auditing of accounts of trust‑‑Provisions of S.7 enable trustees to seek opinion, advice or direction of Court on any question affecting management or administration of trust property.

‑‑‑Ss. 3 & 7‑‑Object, scope and difference between Ss.3 & 7‑‑Private dispute between trustees whether within scope of Ss.3 & 7 of the Act‑‑Basic difference between Ss. 3 & 7 is that any person having interest in the trust can apply under S.3, while S.7 only authorises trustees to seek advice of Court in certain matters relating to trust‑‑None of the said provisions, however, empowers Court to settle disputes arising inter se between parties.

‑‑‑Ss. 5(3) & 3‑‑Management of trust property‑‑Dispute between co‑trustees‑‑Stay of proceedings by Court, competency of‑‑Court, held, could stay proceedings under S.5(3) where petition under S.3 was pending before it for adjudication‑‑Where no such petition was pending before Court, stay of proceedings, relating to direction to trustees for furnishing particulars as to nature, objection and income of trust would be without jurisdiction on application of intervenors till disposal of their suit.

‑‑‑S. 115‑‑Charitable and Religious Trust Act (XIV of 1920), Ss.3, 5 & 7‑‑Revisional jurisdiction, exercise of‑‑Proceedings with regard to direction to trustees to furnish information relating to objection, scope and income of trust stayed by Court on application of intervenors till disposal of their suit‑‑Such suit relating to private dispute between parties, stay of proceeding relating to object, scope and income of trust, held, would be without jurisdiction‑‑Order of stay of proceedings being without jurisdiction was set aside by High Court in its revisional jurisdiction.

S.M. Ghareeb Nawaz Daccawala for Applicant.

J . H . Rah matoola for Respondents.

Date of hearing: lst December, 1986.

This revision application is directed against the order passed by the learned District Judge, Karachi, dated 9‑12‑1982, whereby the learned Judge after invoking the provisions of section 5(3) of the Charitable and Religious Trust Act, 1920 (hereinafter referred to as 'the Act') has stayed further proceedings in respect of the application filed by the applicant under section 7 of the Act.

The facts of the case, briefly stated, are that the applicant claims to be the Managing Trustee of Khawaja Ghareeb Nawaz Trust of which the respondents Nos. 1 and 2 are the co‑trustees. In 1970 al1 society named Anjuman‑i‑Musafri Masjid was registered under the Societies Registration Act, 1960 for construction of a Mosque at Karachi Cantonment Railway Station and the construction was ultimately completed in 1980. In July, 1980, for the purpose of better administration and maintenance of the mosque, Khawaja Ghareeb Nawaz Trust was established and registered and the former Trust was thereafter dissolved. Prior to the creation of the second Trust, the respondents Nos. 1 and 2 had been acting as President and General Secretary, respectively, of Anjumane Musafri Masjid. It later transpired that the two respondents were still representing themselves as the President and the Secretary of the dissolved Trust and collecting funds, obtaining donations and operating Bank account in the name of the Trust.

The applicant, thereafter, presented a petition before the learned District Judge, Karachi against the respondent purporting to be under section 7 of the Act, inter alla, praying for:

"(a) Restraining them from purporting themselves and acting as the President and the Secretary respectively of the defunct‑ Anjuman‑i‑Musafri Masjid Karachi Cantt.

(b) Restraining them.from collecting funds, obtaining donations and operating accounts in the name of defunct‑Anjuman‑i‑Musafri Masjid, Karachi Cantt.

(c) Requiring them to hand over to the petitioner all the Books of accounts, papers, files, registers and record relating to the defunct‑ Anjuman‑i‑Musafri Masjid, Karachi Cantt.

(d) Requiring them to render accounts for the collections so far made by them or any of them and pay/remit/transfer the same to the account of Khawaja Ghareeb Nawaz Trust in Habib Bank Ltd., Karachi Cantt. Station Branch, Karachi.

(e) Any other/further direction which this Hon'ble Court may deem proper in the circumstances and in the interest of justice."

The respondents then filed their respective written statements in the case, inter alia denying the existence of the second Trust and also denying that the earlier Trust had been dissolved. Legal objections were also raised as it was contended that the petition did not fall within the purview of section 7 of the Act and the same was barred under section 9(b) of the Act.

Thereafter, when the proceedings were still pending before the learned District Judge, an application purporting to be under section 5(3) of the Act was filed by one Muhammad Khan and Mustufa Kafil, stating that on 1‑12‑1982 they had filed a suit in the Civil Court against the applicant and other trustees of Khawaja Ghareeb Nawaz Trust and, therefore, proceedings pending before the learned District Judge should be stayed. The learned District Judge held that the application filed by the applicant, in fact, fell within the ambit of section 3 of the Act and not section 7, and while purporting to act under section 5(3) of the Act, ordered that the proceedings in the case be stayed till the decision of the civil suit before the learned civil Court, and hence this revision application.

I have heard Mr. S.M. Ghareeb Nawaz Daccawala, learned counsel for the applicant and Mr. J. H . Rahmatoola learned counsel for the respondents.

After perusal of the relevant provisions of the Act, it appears that the application filed by the applicant before the learned District Judge neither fell within the purview of section 3 nor section 7 of the Act. In order to appreciate this position, it is necessary reproduce sections 3, 5 and 7 of the Act which provide as under:‑

"3. Save as hereinafter provided in this Act, any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the Court within the local limits of whose jurisdiction any substantial part of the subject‑matter of the trust is situate to obtain an order embodying all or any of the following directions, namely:‑

(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the subject‑matter of the trust, and of the income belonging thereto or as to any of these matters, and

(2) directing that the accounts of the trust shall be examined and audited.

Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.

5.(1) If the Court on receipt of a petition under section 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition, and shall cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of the petition should be given.

(3) If .any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and if such suit is so instituted, shall continue the stay, until the suit is finally decided.

7(1) Save as hereinafter provided in this Act, any trustee of any express or constructive trust created or existing for public purpose or a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject‑matter of the trust is situate for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property and the Court shall give its opinion, advice or direction, as the case may be, thereon: If the prayer clause of the petition which has already been reproduced above, is perused, the same would indicate that the prayer of the applicants does not fall within the purview of either section 3 or section 7 of the Act. Section 3, as is evident from its language, empowers the District Judge to issue certain directions to the trustees for furnishing particulars as referred to in clause (1) of the section. The section also empowers the District Judge to issue directions for examination and audit of the accounts of the trust. Section 7 of the Act, on the other hand, enables the trustee to seek opinion, advice or direction of the Court on any question affecting the management or administration of the trust property. The basic difference appearing between section 3 and section 7 is, that any person having an interest) in the trust can apply under section 3 while section 7 only authorises trustees to seek advice of the Court in certain matters relating to the trust. Be that as it may, but none of the said provisions empowers the Court to settle disputes arising inter se among the trustees. Consequently, the proceedings initiated by the applicant before the B learned District Judge were wholly misconceived and without jurisdiction as they sought to settle a private dispute between two sets of trustees. In such a case, there appears to be no doubt, that no action by the learned District Judge. under subsection (3) of section 5 of the Act was called for. As is clear from the language of subsection (1) of section 5 of the Act, action under subsection (3) of section 5 can be taken by the District Judge in a case where a petition is pending under section 3 of the Act. As pointed out above, since no application under section 3 was infact pending before the learned District Judge, his entire action under subsection (3) resulting in stay of the proceedings until the final disposal of the suit filed by the intervenors was without jurisdiction .

For the aforesaid reasons, I set aside the impugned order, dated 9‑12‑1982 holding the same to be without jurisdiction. Consequently Suit No. 4731 of 1982 which has been filed by the intervenors against the applicant and the respondents in this case is not affected in any manner by the aforesaid proceedings before the learned District Judge and, therefore, the same shall proceed and be disposed of by the learned civil Court in

accordance with the law. There will, however, be no order as to costs, in view of the questions involved in this case.

A. A. /5189/K Revision accepted.

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