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.

ORDER :

A.Muhamed Mustaque, J.

This matter placed before us is based on an order passed by a learned Single Judge. The question placed before us, for the answer is as follows.

“Whether the Sub Court is competent to grant leave to institute a suit and, thereafter, try and dispose of the suit under Section 92 of the Code of Civil Procedure, 1908.”

2. It is appropriate to refer to the relevant provisions of Section 92 of the Code of Civil Procedure, which reads as follows.

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the “[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [State Government] within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree.

3. We also see one more question to be decided that has been referred to us by the learned Single Judge with regard to the power of the Additional District Court in granting leave to institute a suit and try a suit under Section 92 of the Code of Civil Procedure, 1908 (for short, the 'CPC'). At the outset we may state that, that question had not arisen for consideration before the learned Single Judge. We note that the learned Single Judge adjourned this matter for determination by the Division Bench invoking power under Section 3 of the Kerala High Court Act, 1958. Therefore, the Division Bench can only answer the questions involved in the matter and not outside the lis which was pending before the learned Single Judge. If we answer reference on that question we have to render an academic answer rather than a decision on a judicial issue vexed by the court. It may not be proper for a Division Bench to answer a reference academically without there being a 'lis' on the matter before the Court. Therefore, we are not proposing to determine the question whether an additional District Court has power to grant leave to institute under Section 92 of the CPC.

4. Section 92 of the CPC as originally stood, stipulates that the institution of suit under the above provisions must be with consent in writing by the Advocate General. Thereafter, an amendment was made in the year 1976 mandating the institution of the suit with leave of the court. This was the substantial change made in Section 92 of the CPC.

5. In regard to the jurisdiction of the Court to entertain such a suit, it is mentioned in the above provisions itself. The Principal Civil Court of the original jurisdiction or any other court empowered in that behalf by the State Government within the local limits of the jurisdiction where the whole or any part of the subject matter of trust is situate to obtain a decree. The jurisdiction is the process of identifying the authority of the court to institute a certain nature and type of case. There are two parts as far as jurisdiction is concerned under Section 92 of the CPC, first part refers to Principal Civil Court of Original jurisdiction. Second part refers to, authorizing the State Government to confer such power on any other Courts notified by the State.

6. In exercise of the power conferred under Section 92 of the CPC, the Government of Kerala notified all respective Sub Courts in Kerala to try and dispose the cases under Section 92 of the CPC by a notification on 24.10.1966. It is appropriate to reproduce the notification.