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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.BADHARUDEEN, J.
Sadasivan, S/o. Gangadharan Pillai - Appellant
Versus
Sadasivan Nair, S/o. Sankara Pillai - Respondent
OP(C) No. 2158 of 2016
Decided on : 27-09-2022
Constitution of India, 1950 – Article 227 – Civil Procedure Code, 1908 – Section 92 – Challenging order - Suit for prohibitory injunction - Original Petition has been filed under Article 227 of Constitution of India challenging Ext.P3 order, viz., order in O.S. on the file of Principal Munsiff Court, original petitioners are plaintiffs in above Suit and respondents herein are respondents in above Suit - If in a Suit filed by the plaintiff a dispute arose on the ground that the Suit would fall under Section 92 of C.P.C (Para 11).
Finding of the court :
It is not in dispute that Munsiff Court shall not have jurisdiction to entertain a Suit under Section 92 of C.P.C – In view of matter, in present Suit plaint averments and nature of reliefs need to be considered while deciding additional issue No.3 and said exercise shall be done before trial – Therefore impugned order holding otherwise shall not sustain and as such same stands set aside
Results: Petition allowed
JUDGMENT :
This Original Petition has been filed under Article 227 of the Constitution of India challenging Ext.P3 order, viz., order in I.A.No.3671/2016 in O.S.No.46/2009 on the file of Principal Munsiff Court, Neyyattinkara, dated 23.08.2016. The original petitioners are the plaintiffs in the above Suit and the respondents herein are the respondents in the above Suit.
2. Heard the learned counsel for the petitioners Advocate Arun.V.G; Advocate Shinod.P, appearing for respondents 1 to 12; Advocate Govind Padmanabhan appearing for Respondents R14 and 15 and Advocate Vinod Raveendra Nath appearing for respondents 20 to 23.
3. Originally, the petitioners herein as plaintiffs filed a Suit for a prohibitory injunction restraining the defendants from forcefully taking the administration of Alara Sree Bhadrakali Temple, Perumpazhuthoor and also from forcefully obstructing the construction of Sreekovil as part of temple reformation. While the Suit has been pending, Ext.P2 application was filed to hear and decide issue No.3, viz. "Is the suit maintainable in view of S.92 of the Civil Procedure Code, 1908?". It has been contended before the trial court that the additional third issue referred above shall be heard and decided before trial.
4. The respondents filed objection and resisted the said prayer.
5. The court below addressed the contentions raised by the petitioners as well as the respondents and finally dismissed the application holding that additional issue No.3 in this case cannot be decided without going into the facts of the case. Hence not preliminary.
6. It is argued by the learned counsel for the petitioners that while deciding the nature of a Suit as to whether the same would fall under Section 92 of the Code of Civil Procedure, the court need only look into averments in the plaint and the same is a simple question of law. He relied on the decision reported in [AIR 2008 SC 1635 : 2008 (2) KLT 68 : ILR 2008 (1) Ker. 781 : 2008 (2) KHC 75], Vidyodaya Trust v. Mohan Prasad.R as well as another decision reported in [2015 (4) KHC 685], John T.J & anr. v. Church of South India in this regard.
7. Per contra, the learned counsel for the respondents placed a decision of this Court reported in [2014 (2) KHC 59 : 2014 (1) KLT SN 91 : 2014 (2) KLJ 1 : ILR 2014 (2) Ker. 125 : AIR 2014 Ker. 95], Fr.John Jacob & Ors. v. Fr. N.I.Paulose & Ors. and argued that when relief in the Suit on its face value is one for simple injunction, when the subject matter of the Suit which is a public trust with reference to the allegations raised in the plaint, then it is necessary to consider as to whether the reliefs styling for injunction would take the Suit out of the ambit and sphere of Section 92 of C.P.C.
8. Here, admittedly, the Trust filed a Suit for prohibitory injunction. But, the respondents resisted the same contending that the Suit is one falling under Section 92 of C.P.C.
9. It is true that in order to ascertain as to whether leave to be granted to institute the Suit under Section 92 of C.P.C, the plaint averments alone need to be looked into. Fr.John Jacob & Ors. v. Fr. N.I.Paulose & Ors. (supra), has been given emphasis.
10. In the decision reported in [2022 KHC 249 : ILR 2022 (2) Ker. 727], Sreenarayana Vidya Mandir Trust & anr. v. Unnikrishnan & Ors. this Court considered the parameters to be considered while granting leave under Section 92(1) of the Code of Civil Procedure Code referring earlier decisions in this regard in [1966 KHC 517 : AIR 1966 SC 878 : 1966 (2) SCR 151], Madappa v. M.N.Mahanthadevaru; [1967 KHC 696 : AIR 1967 SC 1415 : 1967 (2) SCR 739 : 69 Punj LR 805], Harnam Singh v. Gurdial Singh; [1969 KHC 752 : AIR 1969 SC 884 : 1969 (3) SCR 83], Sugra Bibi v. Hazi Kummu Mia; [1974 (2) SCC 695 : 1974 KHC 498 : AIR 1974 SC 2141 : 1975 (1) SCR 790], Swami Paramatmanand Saraswathi v. Ramji Tripathi; [1991 KHC 7 : 1991(1) KLJ 219 : 1991 (1) SCC 48 : AIR 1991 SC 221], R.M.Narayana Chettiar v. N.Lakshmanan Chettiar; [2008(2) KHC 35 : 2008 (
SupremeToday
Point of law: In matter of grant of leave under Section 92(1) of C.P.C, plaint averments alone need to be looked into.
The court established that while leave to file a suit under Section 92 C.P.C. can be granted, it does not prevent defendants from contesting the maintainability of the suit based on the applicability....
Suit filed by the trust against a third party as done in this case, in Court considered opinion would not come within the purview of Section 92 of CPC.
Explicit leave to sue is a prerequisite under Section 92 of the CPC, and cannot be presumed; the suit's maintainability is contingent on having at least two plaintiffs.
The amendment incorporating 'leave of the Court' in Section 92 of the CPC does not impact the jurisdiction already conferred upon the Sub Court by a notification issued in 1966.
Partial rejection of a plaint is impermissible; if any relief survives, the action cannot be dismissed in parts, emphasizing the need for whole plaint consideration.
Point of Law : Where the allegation of breach of trust, direction for administration of Trust is absent, the suit is maintainable and obtaining leave under Section 92 of the CPC is not necessary.
The requirement of two or more persons as a condition precedent for a suit under Section 92 of the CPC is only for the institution of the suit and not its continuation or prosecution.
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