Mokkapati Harihara Prasad vs Nelakuditi Nageswara Rao and Another

S. Dasaratharama Reddy, J.—The petitioner in this case is the appellant in the Civil Miscellaneous Appeal No. 1444 of 1992, which has been dismissed by a separate order pronounced just now. The facts which led to the filing of Civil Revision petition are the same as stated in the C.M.A. The petitioner has filed this Civil Revision Petition against I.A. No. 1455 of 1992 granting permission to the respondents to file the suit. u/s 92 of the Civil Procedure Code.

The petitioner without moving the Court below for revocation of the lower and inviting decision from the Court rushed to this Court and filed the Civil Revision Petition against I.A. No. 1455 of 1992 granting permission to the respondents to file suit u/s 92 of Civil Procedure Code. The ex parte order in I.A. No. 1455 of 1992 cannot, by any stretch of imagination, be construed as "case decided" within the Explanation to Section 115 of CPC as introduced by the amendment Act of 1976 and Civil Revision Petition is, thus, not maintainable. However, as it has been admitted and has been argued at length by both the learned Counsel, we are not dismissing it in limni.

Three contentions have been raised in this Civil Revision Petition.

The first contention is that the granting of leave under 92 of CPC without notice to the respondents is illegal. The Counsel for the petitioner has not pressed this in view of the decision in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, .

The second contention is that Section 92 of CPC cannot be invoked in view of Section 156 (e) of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as ''Act'') which says that Section 92 of CPC does not apply to charitable and Hindu Religious Institutions and Endowments to which the Act applies. It has been held in Charan Singh and Another Vs. Darshan Singh and Others, that maintainability of the suit u/s 92 CPC depends upon the allegations in the plaint and not on the averments in the written statement. As per the allegations in the plaint, in the instant case, the suit trust is not registered under the Act, and in fact, the complaint of the plaintiff s is that the endowment authorities have not taken any steps in spite of repeated representations by the respondents to get the trust registered under the Act. Hence, Section 156 (e) of the Act does not apply to the institution in question, and accordingly, Section 92 of CPC can be invoked. The second contention is, accordingly, rejected.

The third contention is an allied plea that the Court below ought not to have entertained the suit in view of bar on jurisdiction of the Civil Court u/s 151 of the Act, which says that "no suit or other legal proceedings in respect of the administration or management of an institution or endowment or any other matters of dispute for determining or deciding for which the provisions are made in this Act shall be instituted in any Court of law except under and confirmity with the previsions of this Act."

The learned Counsel for respondent submits that the maintainability of suit must be examined with reference to allegations in the plaint and as the suit Trust is not registered under the Act, the provisions in the Act relating to administration and management of the Trusts do not apply to the suit Trust and hence Section 151 does not apply. We agree with the contention of the respondent.

The leanred Counsel for the petitioner relied on Paleru Venkateswarlu and Others Vs. Potina Venkateswarulu and Another, and B. Krishna Murthy v. M.N.V.P. Rama Bhadra Raju 1984 (1) APLJ 77. In the full Bench case, Paleru Venkateswarlu and Others Vs. Potina Venkateswarulu and Another, the suit was instituted in 1960 when Madras Charitable and Endowments Act, 1951 was in force and which does not contain any bar similar to Section 156 of the Act or Section 110 (e) of the 1966 Act repealed by 1987 Act. Section 110 (e) of the 1966 Act, which repealed the 1951 Act, bars the applicability of Section 92 of CPC to institutions governed by Charitable and Endowments Act. As there was no such bar when the suit was instituted, the question arose in the Full Bench case, Paleru Venkateswarlu and Others Vs. Potina Venkateswarulu and Another, whether Section 110 (e) has retrospective effect or not. The Full Bench held that it has retrospective effect. Thus, this decision is not at all relevant, since it is not in dispute that if the institution is governed by the Act, Civil Court has no jurisdiction. The other decision in B. Krishna Murthy v. M.N.V.P. Rama Bhadra Raju 1984 (1) APLJ 77 is also not relevant since the controversy in that case was whether reference to Section 92 of CPC in Section 110 (e) of the A.P. Charitable and Hindi Religious Institutions and Endowments Act, 1966 includes reference to subsequent amendments made to Section 92. This Court held that the reference to Section 92 includes subsequent amendments to that section. The contention that Section 110 does not at all apply to the Institution was not raised or decided in that case. We fail to see how that decision helps the petitioner. Thus, the petitioner cannot avoid civil action in the Civil Court and at the same time, resist the Endowment authorities in their attempts to get the trust registered under the Act.

The petitioner also contended that if Section 92, which is a special provision dealing with the Trust, is not applicable, the plaintiffs cannot fall back upon the general provision of Section 9 of Civil Procedure Code. The respondents opposed this plea contending that if Section 92 is not applicable, the suit can always be instituted u/s 9 of CPC without any restrictions laid down in Section 92 of Civil Procedure Code. We need not go into this academic question in view of our conclusion that Section 92 of CPC applies.

Thus, all the three contentions are rejected and the Civil Revision Petition is dismissed with costs and interim order granted on 14-10-1992 suspending both I.A. No. 1455 of 1992 and I.A. No. 1457 of 1992 is hereby vacated.