Madras High Court Rules Order Granting Leave for Trust Suit is Judicial, Subject to Revision

Chennai, India – In a significant ruling, the Madras High Court, presided over by Justice G.R.Swaminathan , has held that an order granting leave under Section 92 of the Code of Civil Procedure (CPC) to institute a suit concerning a public trust is a judicial order, not merely administrative, and is therefore amenable to revisional jurisdiction under Article 227 of the Constitution of India. The Court set aside an order of the Principal District Judge, Thanjavur, which had granted such leave for a suit related to the Madha Trust.

Case Background

The case, Civil Revision Petition (CRP) filed against I.A.No.14 of 2015 , arose after the respondents were granted leave by the Principal District Judge, Thanjavur, on March 31, 2021, to file a suit under Order 7 Rule 1 read with Section 92 of the CPC. This section allows individuals with an interest in a public, charitable, or religious trust to sue for matters like trustee removal, appointment of new trustees, or for settling a scheme for the trust's administration, but only after obtaining leave (permission) from the Court. The petitioners in the CRP challenged this grant of leave.

Initial Flaws in the Leave Order

Justice Swaminathan initially noted two fundamental flaws in the lower court's order:

1. Non-Impleadment of Trust: The Madha Trust itself, for whose administration the suit was proposed, had not been impleaded as a respondent in the application for leave.

2. Lack of Demonstrated Interest: The applicants (respondents in the CRP) had merely made a "bare averment" of being beneficiaries without substantially showing how they were "interested in the Trust" as required by Section 92 CPC.

The Court observed that these issues "go to the root of the matter" and warranted setting aside the leave order.

The Core Contention: Is the Order Granting Leave Revisable?

The central legal debate revolved around the maintainability of the Civil Revision Petition itself. The respondents’ counsel argued that the CRP was not maintainable, citing a line of Madras High Court precedents, notably G.R.Govindarajulu & Sons Charities, Coimbatore & 2 others Vs. V.R.Sethurao and 12 Others (1998 (2) CTC 65) , which held that an order granting leave under Section 92 CPC is an administrative, not judicial, act and thus not open to revision. This view stemmed from an earlier Division Bench ruling in R.Kannan Adityan Vs. B.S.Adityan ((1996) 2 LW 364) .

High Court's Departure from Precedent: A Detailed Analysis

Justice Swaminathan embarked on a thorough examination of jurisprudence to conclude that such orders are indeed judicial and revisable.

Supreme Court's Stance

The Court noted that the decision in R.Kannan Adityan was appealed to the Supreme Court ( B.S.Adityan Vs. Ramachandran Adityan (2004) 9 SCC 720 ). While dismissing the appeals, the Supreme Court "did not endorse the ratio laid down in R.Kannan Adityan Vs. B.S.Adityan that the order granting leave is administrative in character." Instead, the apex court acknowledged differing High Court views on the matter.

Furthermore, the judgment highlighted the Supreme Court's decision in Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan (2017) 4 SCC 771 , where the SC reviewed a case where a High Court had allowed a revision against an order granting leave. The Supreme Court even commented on the trial court’s error, implying the reviewability of such orders. Justice Swaminathan concluded that this "impliedly endorsed the maintainability of Civil Revision Petition against an order granting leave under Section 92 of CPC."

Support from Other High Courts

The Court drew strength from judgments of the Kerala, Karnataka, and Orissa High Courts, which have held that an order under Section 92 CPC, whether granting or refusing leave, is a judicial order affecting substantive rights and is therefore reviewable. The Kerala High Court in Church of South India Vs. John (2012 (2) KHC 502) stated, "to say that the order allowing or declining leave under Section 92 of the Code is an administrative order, which is not amenable to judicial review is per se wrong."

The Test for Judicial vs. Administrative Orders

Crucially, the Court applied the test laid down by a 7-Judge Bench of the Supreme Court in SBP & Co Vs Patel Engineering Limited (2005) 8 SCC 618 . This test distinguishes an administrative order (directed at regulation/supervision, subjective discretion) from a judicial order (decides rights, objective considerations). Applying this, Justice Swaminathan reasoned:

"Adopting the same approach, one can easily conclude that the power under Section 92 of CPC is judicial and not administrative. Firstly, the power is wielded by the civil Court. Obviously, there is a lis involved. Secondly, the civil Court has to exercise its discretion on objective grounds as the matter involves the rights of parties."

Need for Early Correction of Errors

Justice Swaminathan emphasized the practical necessity of allowing revisions against such orders:

"Unless it is held that an aggrieved party can question an order granting leave by filing revision petition, a fundamental error committed by the Court below cannot be corrected at the earliest stage."

The Court dismissed the argument that a revocation petition before the same court would suffice, especially after leave is granted post-notice and inquiry. It cited S.Guhan Vs Rukmini Devi Arundale (AIR 1988 MADRAS 1) , which held that the Trust is a necessary party in a Section 92 suit.

The trial court's reasoning that "any person who is having an interest and anguish over the fair running of public Trust can institute a suit" was deemed a "clear misconception and misapplication of the statutory provision." Justice Swaminathan asserted:

"If such a grave error committed by the Court below cannot be corrected in exercise of revisional jurisdiction, then there is no purpose or meaning in conferring revisional and supervisory jurisdiction on the High Court."

Final Decision and Implications

Taking a contra stand to earlier Madras High Court rulings, Justice Swaminathan held:

"For these reasons, I have respectfully taken a contra stand and hold that the order granting leave under Section 92 of CPC is a judicial order and not an administrative order and that it is amenable to revisional jurisdiction."

The judge clarified that a reference to a larger bench was not made because his view aligns with the Supreme Court's approach and considers developments in law (like SBP & Co ) not available when earlier precedents like G.R.Govindarajulu were decided.

Consequently, the impugned order of the Principal District Judge, Thanjavur, granting leave was set aside. The Civil Revision Petition was allowed, primarily due to the non-impleadment of the Madha Trust and the applicants' failure to adequately demonstrate their "interest" in the Trust as mandated by Section 92 CPC. This judgment clarifies a significant procedural point in trust litigation, emphasizing the judicial nature of granting leave and the High Court's power to review such orders to prevent manifest errors.