Sanction of Advocate General to institute a case.

The first defendant in O. S. No. 26 of 1948 on the file of the Court of the Subordinate Judge of Tirunelveli is the petitioner in this civil revision petition. The suit was brought by five worshippers at a public mosque called the Mohideen Andavar Pallivasal in the village of Pottalpudu as representing all the worshipping public of the locality interested in the mosque and in its proper administration. The defendants are five in number. The first defendant is stated to be the trustee of the endowment and defendants 2 to 5 have been impleaded as persons who might have a possible right of succession to the trusteeship after the first defendant. The suit was filed with the sanction of the Advocate-General endorsed on the plaint, for removing the first defendant from his trusteeship and the possession and management of the trust properties, for framing a scheme suitable for the administration of the public trust and for ancillary reliefs with which we are not now concerned. The suit was filed on the 1st of March, 1948. After the fifing of the written statements, as many as 14 issues have been framed in the case on the contentions raised by the parties. The suit has not yet been tried. On the 4th November, 1948, the first defendant filed an application under Order 14, rule 2 of the Code of Civil Procedure, praying that issues Nos. 8, 9 and 13 should be tried as preliminary issues and disposed of before the other issues were taken up for consideration. The learned Subordinate Judge by his order dated 6th December, 1948, dismissed the application for reasons which may be stated in his own words:

“Under rule 61 of the Civil Rules of Practice the trial Court ought not to dispose of a suit on preliminary issues but should record findings on all the issues. I am not therefore prepared to try issues 8, 9 and 13 as preliminary issues and dispose of the suit. The case will be tried on all the issues.”

What is referred to by the learned Subordinate Judge is not a rule framed by this Court under the rule-making power but ony a circular issued for the guidance of subordinate courts.

The issues which the first defendant wanted to be tried as preliminary issues are these:

“Issue 8, Is the court-fee paid inadequate?

Issue 9. Are defendants 2 to 5 necessary parties to the suit?

Issue 13. Is the suit as framed for any of the reliefs claimed therein not maintainable for want of a valid sanction of the Advocate-General?”

Mr. S. Ramachandra Aiyar who confined his arguments with reference to issue 13 states that there is no valid sanction granted by the Advocate-General for the institution of the suit and this defect, which is fundamental, would appear from a perusal of the order according sanction for the suit passed by the learned Advocate-General. He further contends that a valid sanction of the Advocate-General to the suit is the foundation of the jurisdiction of the Court to try the suit under section 92 of the Civil Procedure Code, and in this case the trial on the other issues would have been futile and without jurisdiction, in case his contention that the suit is bad for want of a proper sanction of the Advocate-General is well-founded. I agree that the note to rule 61 of the Civil Rules of Practice referred to by the learned Subordinate Judge does not override the provisions of Order 14, rule 2 of the Civil Procedure Code but not with the further contention that the learned Judge acted illegally and with material irregularity in rejecting the application of the first defendant for a preliminary trial on issues 8, 9 and 13.

If the decision of a preliminary issue is governed by a clear and specific statutory provision whose interpretation does not admit of any possible doubt, or by a binding decision of the highest Court on that very matter, then it is not improper for a Court to try the preliminary issue before entering upon the merits of the dispute between the parties. There is a circular issued by this Court that as a general rule, in appeal