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2008(1) Supreme 264
Supreme Court of india
(From Kerala High Court)
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Vidyodaya Trust — Petitioner
versus
Mohan Prasad R & Ors. — Respondents
Appeal (civil) 1633 of 2008
(Arising out of SLP (C) No. 3473 of 2007)
Decided on : 27-02-2008
(b)Code of Civil Procedure, 1908 – Section 92 – For maintaining a suit u/s 92 it is the object and purpose of the petition and not the relief which is material – A co-trustee is not remediless if the leave is not granted under Section 92. (Para 13)
(c)Code of Civil Procedure, 1908 – Section 92 – Scope and Ambit – The object of Section 92 CPC is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them – A suit u/s 92 CPC is a suit of special nature, which pre-supposes the existence of a public trust of religious or charitable character – Also, normally notice should be given before deciding the question as to whether leave is to be granted – However even if the leave was granted after due notice, it is open to the Court to deal with an application for revocation and pass necessary orders. (Paras 18, 20 and 21)
(2004) 9 SCC 720; (1991) 1 SCC 48; (1974) 2 SCC 695 – Relied upon.
(d)Code of Civil Procedure, 1908 – Section 92 – Mere fact that a suit relates to public trust of religious or charitable nature and the reliefs claimed fall within some of the clauses of Section 92(1) would not by itself attract the operation of the Section, unless the suit is of a representative character instituted in the interest of the public and not merely for vindication of the individual or personal rights of the plaintiffs – Impugned order not sustainable. (Paras 24 and 25)
AIR 1969 SC 884 – Relied upon.
Facts of he case:
1.Respondents as plaintiffs filed OP NO.238 of 2000 before the District Judge, Ernakulam under Section 34 of the Indian Trust Act, 1882 in respect of Vidyodaya Trust and administration of the said trust and the school run by the trust.
2.The OP was held to be not maintainable and the petition was dismissed.
3.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 CPC which was granted without notice to the appellant.
4.The Court framed preliminary issue as to whether the suit as framed is maintainable under Section 92 CPC and it was held that the suit was maintainable.
5.The High Court dismissed the Civil Revision petition on the ground that the same was not maintainable as the impugned order was an interlocutory one.
6.Thereafter a writ petition was filed questioning the same. The High Court dismissed the Writ petition.
7.In a challenge to both the orders i.e. one in the Revision Petition and the other in the Writ Petition the Supreme Court set aside the order in Civil Revision and remitted the matter to the High Court.
8.The learned Single Judge formulated certain procedures for grant of leave by the Court. It was also held that there would be need for public notice under Order 1 Rule 8 CPC in a suit under Section 92. It was finally concluded that though there were certain inadequacies they did not vitiate the proceedings. The Civil Revision was accordingly dismissed.
Findings of the Court :
The suit being an attempt to vindicate personal grievance, High Court’s order is not sustainable.
Result : Appeal allowed.
judgment
Dr. Arijit Pasayat, J. –
1.Leave granted.
2.This is the second round of litigation before this Court. Challenge in this appeal is to the order passed by a learned Single Judge of the Kerala High Court holding that leave had been rightly granted in terms of Section 92 of the Code of Civil Procedure, 1908 (in short the ‘CPC’).
3.Defendants 1 to 3, 6, 8 and 10 had moved the High Court in Civil Revision Petition questioning order of learned District Judge who had taken the view that the suit was maintainable and justified under Section 92 of CPC.
4.Earlier the matter was before this Court in Civil Appeal No. 3679 of 2006. The factual position as was noticed in the earlier appeal was as follows :
“Respondents as plaintiffs filed OP NO.238 of 2000 before the District Judge, Ernakulam under Section 34 of the Indian Trust Act, 1882 (in short the ‘Trust Act’) in respect of Vidyodaya Trust 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 CPC. According to the appellant without notice to him 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. 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 appellant 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 Revision Petition and the other in the Writ Petition were challenged before this Court. Taking note of the facts, the appeal was disposed of with the following conclusions:
“Judged in the aforesaid background the view of the learned Single Judge that the Civil Revision was not
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