IMPORTANT POINT
Revision against an order holding suit filed u/s 92 CPC as maintainable, order passed on preliminary issue, is maintainable.

Headnote:Civil Procedure Code, 1908—Section 115—Revisional Jurisdiction of High Court—Respondents filed suit and application u/s 92 CPC—Leave was granted—Appellant filed written statement taking the stand that suit was actuated by personal motive and was not maintainable u/s 92 CPC—Court framed preliminary issue whether suit as framed was maintainable u/s 92 CPC and held suit maintainable—Revision filed by appellant was dismissed by High Court holding same not maintainable the order impugned was interlocutory—Appellants filed writ and it was dismissed holding that view taken in Civil Revision was not correct but since there was discussion on merits, writ petition could not be maintained—Appeal—View of Single Judge that Civil Revision was not maintainable was indefensible—If it was held that suit in terms of Section 92 CPC was not maintainable, that would have the result of final disposal of suit—Impugned order in revision petition was liable to be set aside and matter remanded to High Court for disposal of revision on merits.
       Held : The amendment to Section 115 CPC is based on the recommendations made by the Malimath Committee. The said Committee was of the opinion that the expression employed in Section 115 CPC which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the parties against whom it was made, left open wide scope for exercise of powers with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision, but strongly felt that the powers should be suitably curtailed. The effect of the erstwhile clause (b) of the proviso was deleted and a new proviso has been inserted so that the revisional jurisdiction is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. It is thus clear that the proviso creates an embargo in exercise of revisional power.(Para 10)
       These aspects have been highlighted in Surya Dev Rai v. Ram Chander Rai and Ors. (2003 (6) SCC 675).(Para 11)
       Judged in the aforesaid background the view of the learned Single Judge that the Civil Revision was not maintainable is clearly indefensible. Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The Civil Revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No.1260/2003 disposed of by judgment dated 5.2.2004 by the High Court. The said order is set aside. (Para 12)
       The High Court shall now to hear the Civil Revision on merits and dispose of the same as expeditiously as practicable preferably within four months from the date of receipt of our order. The time period is being fixed considering the pendency of the matter for a considerable length of time.(Para 13)

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. While in one of the appeals challenge is to the legality of the judgment dated 5.2.2004 passed in CRP No.1260 of 2003 by a learned Single Judge of the Kerala High Court, in the other appeal challenge is to the judgment passed on 20.8.2004 in WP (C) No.14961 of 2004 by another learned Single Judge of the said High Court.

3. Essentially the factual position is as follows:

Respondents as plaintiffs filed OP No.238 of 2000 before the District Court, Ernakulam under Section 34 of the Indian Trust Act, 1882 (in short the Trust Act) in respect of Vidyodaya Trust and applied to the Court for direction for management and administration of the said trust and the school run by the trust. But the said Court by order dated 31.1.2000 held that the OP was not maintainable and dismissed the petition. Thereafter the suit No.20 of 2000 was filed by the respondents as plaintiffs claiming several reliefs. The respondents filed an application (IA 349 of 2000) seeking leave of the Court to institute the suit under Section 92 of the Code of Civil Procedure, 1908 (in short the CPC). According to the appellants, without notice to them the concerned Court granted leave to the respondents to institute the suit. The suit was numbered as OS 20 of 2000. Plaintiffs filed written statement inter alia taking the stand that suit was actuated by personal motives. The suit under Section 92 CPC is of a special nature which pre-supposes existence of a Public Trust of religious or charitable character. From the averments in the plaint and the reliefs sought for it is clear that the plaintiffs were not suing to vindicate rights of the public, and it has not been filed in the representative capacity. The plaintiffs four in number are trustees who instituted both the suits against other trustees for personal reliefs and as individuals and seeking vindication of alleged individual rights and not as representatives of the public. Therefore, the suit as framed is not maintainable under Section 92 CPC. The defendants filed an application before the District Judge, Ernakulam for hearing as preliminary issue, the question of maintainability of the suit. On the basis of contentions raised by the plaintiffs as well as defendants, the Court framed preliminary issue as to whether the suit as framed is maintainable under Section 92 CPC. By order dated 11.4.2003 the Court held that the suit was maintainable.

4. Questioning correctness of the order, a petition for revision in terms of Section 115 CPC was filed. The High Court dismissed the Civil Revision petition on the ground that the same was not maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was not maintainable as order dated 4.11.2003 was an interlocutory one. Thereafter the appellants filed writ petition before the High Court praying, inter alia, for writ, direction or order, questioning the order dated 2003. By order dated 20.8.2004 the High Court dismissed the writ petition holding that the view taken in the Civil Revision apparently was not correct, as by no stretch of imagination it can be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable subsequent proceedings initiated under Article 227 of the Constitution of India, 1950 (in short the Constitution) cannot be maintained.

5. Both the orders i.e. one in the Civil Revision petition and the other in the writ petition form subject-matter of challenge in these appeals.

6. Learned counsel for the appellants submitted that the appellants have been placed at a very peculiar position. One learned Single Judge held that the Civil Revision was not maintainable. Another learned Single Judge observed that the view expressed in the Civil Revision was not correct, but since the merits were discussed in the order passed in t

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2006 Supreme(SC) 782

IMPORTANT POINTRevision against an order holding suit filed u/s 92 CPC as maintainable, order passed on preliminary issue, is maintainable.

Cases Referred (1)

IMPORTANT POINT
Revision against an order holding suit filed u/s 92 CPC as maintainable, order passed on preliminary issue, is maintainable.