SHARMA, J.

(1) PLAINTIFFS- respondents, claiming to be the members of public highly interested in safeguarding public interest relating to Jay Narain Inter College, Varanasi (here-in-after referred to as the college) and some of whom are old students of the college, filed a suit No. 197 of 1968 in the Court of the learned Civil Judge, Varanasi under Order I, Rule 8 of the Code of Civil Procedure for the following reliefs:

" (a) That the permission be granted to the plaintiffs for instituting and prosecuting this suit as members of the public at large and also as representative of the Varanasi City as well as public out of this city under Order 1, Rule 3, C. P. C. (b) That a decree of permanent injunction be passed in favour of the plaintiffs against the defendants restraining them from selling or otherwise transferring the hostel building and land appertaining to the hostel of Jay Narain Inter College, Varanasi bearing Municipal No. D. 44/34 Bagh Bhawani, Rampura Varanasi more fully detailed herein below. Valued at rupees one lac as its market value. (c) That also a decree be passed in favour of the plaintiffs against the defendants for relief or reliefs other than the relief prayed for in sub-para (b) to which the plaintiffs be deemed to be entitled. (d) That cost of this suit be awarded to the plaintiffs realizable from the defendants. "

(2) SUIT was filed with the allegations that Maharaja Jay Narain Ghoshal made donations and contributions for establishing a High School named Jay Narain High School and created a trust entrusting the management and control of the College to Church Mission Society and in this way Church Mission Society became the trustee of the trust created by Maharaja. Church Mission Society acquired certain more land and constructed hostel and other buildings. Church Mission Society later on handed over the management of the college and the hostel to Diocessan of Lucknow, defendant-appellant and a trust deed was created vide Ex. A-5, whereby defendants-appellants became the trustees. As the defendants have committed gross breach of trust by stopping admission of the students needing accommodation and as they are contemplating more serious breach of trust by sale of the hostel and the appurtenant land, necessity for filing the suit has arisen, so as to restrain the defendants-appellants by decree of permanent injunction restraining them from selling or otherwise transferring the hostel building and its land.

(3) DEFENDANTS-APPELLANTS contested the suit and one of the pleas raised by them was about non-maintainability of the suit on account of non-compliance of Section 92, C. P. C.

(4) THE trial Court framed various issues and issue No. 18 was as to whether the suit is barred by Sec. 92, C. P. C. Trial Court vide its judgment dated 29-8-1972 decreed the suit and held that the college is a trust property and is a charitable institution and the. defendants by proposed sale of the hostel are guilty of breach of trust. The relevant passage from the judgment of the trial Court from pages 116 to 118 of the paper book is extracted below:

"jay Narayan Inter College is an educational institution meant for imparting general education to the public at large and is a charitable institution. It is a juristic person capable of holding property. Defendant No. 1 is managing the college and the hostel as a trustee. The members of the public including students and guardians are beneficiaries. The proposed sale of the hostel building is prejudicial to the public cause and the students of the college. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A trustee has to administer trust property in the best interest of the trust. Defendant No. 1 has failed to prove that the sale of the hostel building fulfils this test. It is rather a breach of trust to deprive the outside students of the facility of the hostel and thereby deprive a good number of students of the opportunity of receiving education at the college. This suit had been filed under Order 1, Rule 8, C. P. C. and the plaintiffs of this case represent the members of the public of Varanasi. They have a right to challenge the proposed alienation as it is in breach of the trust. They are also entitled to a permanent injunction restraining defendant No. 1 from selling the hostel building. I decide issues 1 to 3 in the affirmative. "

(5) REGARDING the non-compliance of Sec. 92, C. P. C. , the trial Court held that it is a public trust but the relief claimed by the plaintiffs is not of the nature referred to in Sec. 92 (1), sub-clauses (a) to (h) and as such compliance of Section 92, C. P. C. was not required.

(6) FROM the averments made in the plaint, it is clear that trust is a public trust and the college is a charitable institution. Suit was not filed for vindication of a personal right of the plaintiffs or any other person but for vindicating the right of the public for preventing the breach of trust. Object of the suit was to prevent the breach of trust and to force the trustees to discharge their obligations and perform the duties of trustees in accordance with the object of the trust. It is true that relief claimed by the plaintiffs does not fall in clauses (a) to (g) of Sec. 92, C. P. C. but in view of the averments made in the plaint and the finding recorded by the trial Court, the relief claimed in the suit falls under clause (h) of the said section, which is quoted below: " (h) granting such further or other relief as the nature of the case may require. " in Charan Singh v. Darshan Singh, AIR 1975 SC 371 [LQ/SC/1974/419] plaintiff filed a suit praying for a decree for permanent injunction so as to restrain the defendants from interfering with the maintaining of the Guru Granth Sahib for religious recitals in the Darbar Sahib in the Dharamsala etc. The argument before the Supreme Court was that this type of relief of injunction cannot fall in any clause of Section 92 (1), C. P. C. and as such, it was not necessary to comply with the provisions of this section. The Supreme Court held that the plaintiff alleged acts of breach of trust, mismanagement, undue interference with the right of the public in the worship of Guru Sahib and the suit was for enforcing of due performance of the duties of the trustees and as such, relief falls under clause (h) and the suit is not maintainable without consent in writing of the Advocate-General. Relevant passage from paragraph 8 of the judgment of the Supreme Court is quoted below:

"they wanted a decree of the Court against the appellant to force him to carry out the objects of the trust and to perform his duties as a Trustee. Reading the plaint as a whole it is not a suit where the plaintiffs wanted a declaration of their right in the religious institution in respect of the Granth Sahib. But it was a suit where they wanted enforcement of due performance of the duties of the trustee in relation to a particular object of the trust. It is well settled that the maintainability of the suit under Section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. "

(7) IN the instant case also the relief of permanent injunction was sought so as to compel the trustees to perform their duties in accordance with the object of the trust and not to commit the breach by transferring the hostel building. The relief claimed as such falls under clause (h) of Sec. 92 (1), C. P. C. As the suit has not been filed by the plaintiffs with the consent in writing of the Advocate-General, the same is not maintainable, and is liable to be dismissed on this ground alone, because suit was filed in 1968 (before amendment of 1976), unamended Sec. 92 will apply.

(8) DEFENDANTS-APPELLANTS however, have filed an affidavit of Sri H. R. Mall, Secretary, Lucknow Diocessan, whereby an undertaking has been given before this Court that the hostel building and the land appurtenant thereto shall not be sold to any one and that it shall be utilised for the purpose of Jay Narain Inter College, Varanasi. The undertaking as contained in paragraph 3 of this affidavit is quoted below:

"that on behalf of the appellants Nos. 1 and 2 the deponent undertakes that the hostel building and the land appurtenant thereto which was proposed to be sold to one Taga Waris of Varanasi shall not be sold to the said party or to any one else and that it shall be utilized for the purposes of Jai Narain Inter College, Varanasi. "

(9) ALTHOUGH, in the aforesaid paragraph only undertaking is that the hostel and the land appurtenant to it shall not be sold; but Sri B. N. Asthana, learned counsel for the defendants-appellants has given an undertaking on behalf of the defendants that the hostel building and the land appurtenant thereto shall not be transferred by any means to any one and it shall be utilized for the purposes of the college.

(10) IN view of the aforesaid undertaking grouse of the plaintiffs-respondents stands redressed and they cannot have any ground for complaint any more.

(11) THE appeal is accordingly allowed and the judgment and decree dated 29-8-1972, passed in Civil Suit No. 197 of 1968, is set aside. In view of the facts and circumstances of the case, parties shall bear their own costs. Appeal allowed.